text:
    Lane v. Alexander. Ex parte Lane.
    Opinion delivered April 27, 1925.
    1. Gaming — RECOVERY of money lost. — Under Crawford & Moses’ Dig., § 4899, -an action is maintainable to recover money or property lost lat any game or gaming device or on any bet or w-ager.
    2. Replevin — sufficiency of complaint. — A complaint in replevin which alleges that plaintiff is the owner of the property described, and that defendant unlawfully has possession thereof and refuses to deliver same up to plaintiff on demand, is a sufficient allegation that plaintiff is entitled to the immediate possession of the property.
    3. Pleading — sufficiency of- complaint on demurrer. — ffn determining the sufficiency of the complaint -on demurrer, it is proper to consider the facts pleaded in the answer.
    4. Gaming — remedy for recovery of property lost in gambling.— Rev. Stat., c. 68, § 1, providing that property lost at any game or gambling device may be recovered by action of detinue or trover, has been' modified by the Code provision abolishing forms of action (Crawford & Moses’ Dig., § 1031), and such property may now be recovered in an action of replevin.

      5. Bail — liability of sureties. — The liability of sureties on an appearance bond, within Crawford & Moses’ Dig., § 8645, does not mature unless there is a breach of condition by the failure of the defendant to submit to the judgment, and until after a return by the proper officer of an execution against the body of the defendant showing that he could not 'be found.
    6. Contempt — power of couet to enfobce judgment. — Under Crawford & Moses’ Dig., § 8644, providing for the arrest of the defendant in replevin where the property has been removed or concealed, held that where the court finds that the defendant so arrested has in his possession bonds belonging to the plaintiff which he refuses to deliver up, he may be committed to jail until he makes delivery thereof, or executes a ¡bond to make such delivery or to pay the value of the bonds so removed or concealed.
    7. Contempt — fowee to imprison oontemnoe. — The power of a superior court to imprison a defendant in replevin who refuses to deliver property of plaintiff wrongfully in his possession continues as long as his contumacy persists.
    8. Replevin — deliveey of part of the property. — Delivery by defendant of part of the property involved in an action of replevin did not abate the power of the court after judgment to compel delivery of bonds still held and found to be in defendant’s possession.
    9. Judgment — merger.—A judgment of contempt, growing out of a civil action of replevin to recover bonds lost in a gambling transaction, held not to merge in a judgment of conviction of larceny of such bonds where the latter was suspended by execution of a supersedeas bond.
    Appeal from Greene Circuit Court, and certiorari to Greene Circuit Court; W. W. Bandy, Judge;
    affirmed.
    * Little, Buck & Lasley and Huddleston 3.Little, for appellant.

      Block & Kirsch, for appellee.
   McCulloch, C. J.

Appellee instituted an action against appellant in the circuit court of Greene County to recover possession of certain United States bonds, accurately and particularly described, of the aggregate value of $20,100. Appellee alleged in his complaint that he is the owner of the bonds described, and that “the defendant unlawfully has possession thereof, and refuses to deliver the same up to plaintiff upon demand.” Proper affidavit was filed for immediate delivery of the property, and the affidavit contained an allegation, as provided by statute in cases of replevin (Crawford & Moses’ Digest, § 8642), to the effect that the property had been by the defendant “sold, removed or disposed of, with intent to defeat the plaintiff’s action,” and an order of delivery was issued by the clerk with a capias clause for the arrest of appellant. The officer in whose hands the writ was placed for service failed to find the property, and he arrested appellant, who gave bond with surety as provided by statute (Crawford & Moses’ Digest, §§ 8644, 8645), and was released. The sureties on appellant’s bonds subsequently surrendered him into custody, and he was brought into court and appeared by attorney and filed his answer, tendering as a defense that he had won the bonds from appellee at the gaming table.

The court sustained appellee’s demurrer to the answer, and, appellant declining to plead further, rendered judgment against appellant for the delivery of the bonds, after hearing oral evidence as to the actual possession and the value of the bonds. Appellant was present in court when the judgment was rendered, and the judgment of the court contained a recital that “defendant is in open court, admitting that he has possession of said bonds, and refuses to deliver the same up to plaintiff,” and the court thereupon adjudged appellant.to be in contempt of court, and committed him to jail, “there to remain until he should deliver all of said bonds, with the coupons thereto attached, to plaintiff, or pay the value of said bonds as found by the court, unless defendant shall immediately execute bonds in the sum of $20,000 to plaintiff, conditioned that he will deliver said bonds or pay the value thereof, or execute supersedeas bond on appeal as required by law.”

The grand jurv had previously returned an indictment against appellant for the crime of grand larceny, alleged to have been committed by stealing the bonds from appellee, and the judgment in the replevin suit was rendered during an intermission in the trial of the criminal case, hio objection to that procedure was made, however, by appellant, and no postponement of the trial was requested. Later, during the same day, appellant was convicted in the criminal case and sentenced to a term in the penitentiary, but he prosecuted an appeal tó this court from that judgment, and executed an appeal bond in an amount fixed by the trial court. Appellant was, however, held in custody under the court’s order in the replevin case, and, on January 20, 1925, a month after the former proceeding, he presented to the circuit judge in vacation a petition for writ of habeas corpus praying for discharge from custody. There was a hearing before the circuit judge in chambers, and a judgment was rendered refusing to discharge appellant from custody and remanding him to the custody of the sheriff, to be confined until discharged by the circuit court. Appellant also secured a writ of habeas corpus from the chancellor of that chancery dis-. trict, but, on a hearing of the writ, the chancellor refused to discharge appellant from custody, and remanded him to the custody of the .jailer, to be held under the order of the circuit court.

The record in both of the proceedings last mentioned has been brought here by writ of certiorari, and, by agreement of counsel on both sides, has been consolidated with the appeal from the judgment in replevin and the order of the court holding appellant to be in contempt for failure to deliver the bonds. The questions in all the case have been briefed together and can be disposed of in one opinion.

It is contended, in the first place, that the judgment in the replevin suit is void for the reason that the complaint fails to state a cause of action, in that it does not allege that appellee is entitled to the immediate possession of the bonds, and that the question of the insufficiency of the complaint was raised by the demurrer to the answer, which reached back to the complaint. Dallas v. Moseley, 150 Ark. 210. The answer tendered no valid defense, for the statutes of this State expressly authorize the maintenance of an action for the recovery of money or property lost at any game or gaming device or on any bet or wager. Crawford & Moses’ Digest, § 4899. Our conclusion on this feature of the case is that a cause of action is stated in the complaint, notwithstanding that there is no express allegation that appel-lee is entitled to immediate possession of the property in controversy. There is, no statutory requirement that a complaint in replevin must contain allegations, in precise words, that the plaintiff is the owner of the property in controversy and is entitled to immediate possession thereof. Therefore it is sufficient if the complaint contains those allegations in express words, or contains language from which there is the necessary implication of ownership and right to immediate possession. Climer v. Aylor, 123 Ark. 510; Grever v. Taylor, 53 Ohio St. 621, 42 N. E. 829. The complaint now under consideration contains a specific allegation that appellee is the owner of the- property, and this constitutes a' plea of general ownership, and that appellant is in unlawful possession thereof. There is a necessary implication from these two allegations that appellee is entitled to immediate possession, for, if appellee is the owner, right of possession follows general ownership, unless otherwise shown, and the allegation of unlawful possession by appellant, negatives the legal right of possession otherwise than in appellee as the owner. In addition to that, it is clear that the answer supplies the omission 'in the complaint by the allegation that appellant won the property from appellee at the gaming table. This constitutes an affirmative allegation that the title and likewise the actual possession was with appellee at the time the property unlawfully passed into the hands of appellant. Therefore the inference is conclusive from the pleadings, when read together, that appellee is not .only the owner but is entitled to,the immediate possession.

It is proper to consider the tacts pleaded m the answer in determining the sufficiency of the complaint when called in question by a demurrer. Thompson v. Jacoway, 97 Ark. 509.

It is also contended that the judgment is' void for the reason that the statute which created the right of action for the recovery of money or property lost in gaming prescribed the particular remedy, and that replevin was not the prescribed remedy. The statute in question was a part of the Revised Statutes (chap. 68, § 1), and read as follows:

“Any person who shall lose any money or property at any game or gambling device, or any bet or wager whatever, may recover the same by action of debt, if for money, and, if for property, by action of detinue or trover, against the person winning the same; but such suit shall be instituted within ninety days after the paying over of the money or property so lost. ’ ’

Later digesters, beginning with Gantt’s Digest of 1874, omitted from the section the words, “by action of debt,” and the words, “by action of detinue or trover,” and in all the digests down to Crawford & Moses’ Digest, § 4899, those words are deleted. It is argued that it was error to eliminate those words, but we are of the opinion that the change was authorized by the Code provision (Crawford & Moses’ Digest, § 1031) abolishing all forms of action. Counsel rely on the case of Nealy v. Powell. 20 Ark. 164, holding that replevin would not lie for the recovery of property lost in gaming, for the reason that the statute creating the right prescribed detinue or trover as the form of action. At that time there was no statutory provision abolishing forms of action, and all of the common-law forms were in vogue. In fact, the Revised Statutes and Gould’s Revision of 1858 contained provisions for both detinue and replevin as forms of action, notwithstanding the fact that the definition of replevin as a form of action overlapped that of the action of detinue by providing the remedy of replevin where property was wrongfully detained as well as where wrongfully taken. Revised Statutes, chap. 12, § 1; Gould’s Digest, chap. 145, § 1.

The grounds for the decision in Nealy v. Powell, supra, were that detinue as a form of action was still preserved and the statute creating the right prescribed that remedy, which was exclusive. The fact that there were concurrent remedies did not change the rule, but, now that the Code has abolished forms of action, thereby eliminating the distinction between purely concurrent remedies, the digesters have properly eliminated from the statutes the common-law action of detinue, as it is entirely supplanted by the enlarged remedy of replevin conferring a right of action which embraced the form of action described as detinue. The change wrought by the Code provision referred to above necessarily gives a right of action in cases of this kind, and the form of action is included within the remedy defined in the scope of an action of replevin. This disposes of the contention with reference to the invalidity of the judgment for the recovery of the property.

The action of the court in ordering the retention of appellant in custody until he makes delivery of the bonds pursuant to the judgment of the court is challenged on several grounds. It is first insisted that there is no statutory authority for personal detention of a defendant in replevin after the judgment of the court. The pertinent sections in the chapter on replevin are as follows:

“Section 8642. The order for the delivery of the property to the plaintiff shall be addressed and delivered, with a copy thereof, to the sheriff. It shall state the names of the parties to the action, and the court in which the action is brought, and direct the sheriff to' take the pronerty, describing it, and stating its value as in the affidavit of the plaintiff, and deliver it to him, and make return of the order on a day to be named therein, and to summon the defendant to appear on such day in the court and answer the plaintiff in the premises; and, if the plaintiff; shall file an additional .affidavit that he believes the property has been 'concealed, removed or disposed of in any way, with intent to defeat the plaintiff’s action, the clerk or magistrate shall insert a clause commanding the sheriff, or other officer, that, if the property mentioned in the order cannot 'be had, to take the body of the defendant, so that he appear at the return day of the order to answer the premises. The order shall be made returnable as an order of arrest is directed to be returned.” Crawford & Moses’ Digest.
‘ ‘ Section 8644. If the property described in the ordér shall have been removed or concealed, so that the officer cannot make delivery thereof, he shall (when the order contains a capias clause) arrest the body of the defendant and hold him in custody, in the same manner as on a capias ad respondendum in a personal action, until he shall execute the bond prescribed in the next section, or be otherwise legally discharged.” Id.
“'Section 8645. The defendant shall be entitled to be discharged from such arrest, at any time before final judgment had in the cause, upon executing to the officer who shall have made such arrest, with the addition of his name of office, a bond in a penalty of at least double the value of the property described, as sworn to in the affidavit, with such security as shall he approved by such officer, conditioned that such defendant shall abide the order and judgment of the court in such action,, and that he will cause special bail to be put in, if the same be required.’’ Id.

It has been repeatedly decided by this court that the bond provided for in § 8645 is an appearance bond, and not a bond to perform the judgment of the court. Duncan v. Owens, 47 Ark. 388; Daniels v. Wagner, 156 Ark. 198; Jones v. Keebey, 159 Ark. 586. The manifest design of this provision of the statute is to procure the personal attendance of the defendant at the time of the rendition of the judgment, and to allow him to give bond for his appearance. Liability of the sureties on the bond does not mature unless there is a breach of the conditions of the bond by the failure of the defendant to submit himself to the judgment and a return by the proper officer of an execution against the body of the defendant, showing that he could not be found. Duncan v. Owens, supra. It is true that there is no express provision in the statute authorizing the court to deal personally with a defendant who submits himself in judgment or who is brought before the court pursuant to process, but the fact that the statute contains express authority for subjecting the defendant in person to the authority of the court necessarily implies the power of the court to deal with him in any appropriate manner to compel obedience of the court’s judgment. In other words, the statute provides a means whereby the court may act upon the person of the defendant in the enforcement of its judgment, and it is among the inherent powers of all courts of superior jurisdiction to enforce there judgments and orders. Works on Jurisdiction of Courts, p. 170; 7 R. C. L., p. 1034. “A court having jurisdiction to render a judgment or decree, has authority and jurisdiction,” it is said in R. C. L., supra, “to make such orders and issue such writs as may be necessary and essential to carry the judgment or decree into effect and render it binding and operative.” This power was recognized by the decision of this court in Meeks v. State, 80 Ark. 579, where we upheld an order of the chancery court committing the appellant for contempt on account of failure to comply with an order of the court for the delivery of property. That was an order made by the chancery court, but there is no distinction between the inherent powers of courts of superior jurisdiction in regard to the enforcement of their judgments. Courts of chancery afford peculiar remedies not available at law, but the power to enforce a decree or judgment inheres in all courts of superior jurisdiction, regardless of the peculiar remedies which mav be offered bv each. In the case just cited we held that the effect of such an order was not imprisonment for debt, and the authorities on that subject were fully reviewed. In Hand v. Haughland, 87 Ark. 105, we lield that courts of probate possess power to enforce, by contempt proceedings, orders of distribution. There is a statute authorizing it (C. & M. Dig. § 200), but the statute is only declaratory of the inherent power of the court. It was, as before stated, decided in Duncan v. Owens, supra, that liability of the sureties on an appearance bond could not be enforced until after return of the writ, and it is argued from this that the court had no power to commit the defendant until there was a return of an execution or writ of possession under the judgment. There is no analogy between the two questions, for liability of sureties is not involved in the present case, the sureties having surrendered appellant into custody, and the record recites that the court found from the evidence that appellant had possession of the property and that he refused .to deliver them. These recitals of the court show that appellant was committed, not for offensive demeanor in the presence of the court, but for his recalcitrancy in refusing to comply with the order of the court, and this constituted a civil contempt which authorized the court to resort to the detention of appellant in custody as a means of enforcing its judgment. Appellant was then in the presence of the court, brought there pursuant to the original capias for the very purpose of requiring him to answer the court’s orders and .judgment. The statutory provision would therefore be an empty formality if the court possessed no power to compel the appellant to obey the orders of the court 'by surrendering the property. Of course, the judgment would be erroneous unless it was shown that appellant had possession of the property and. was able to comply with the court’s orders, but this fact is shown by the recitals of the court, which we must presume were supported by sufficient evidence. The power of the court over the person of the appellant therefore remains so long as his contumacy persists, and the fact that a few of the bonds were delivered to plaintiff before judgment does not abate the power of the court after judgment to enforce the same as to the bonds still held by-appellant and found to be in his possession.

Finally, it is insisted that the judgment for contempt was merged in appellant’s judgment of conviction for larceny. Counsel rely on the case of Williams v. State, 125 Ark. 287, but that case has no application, for the reason that it was an attempt on the part of the trial court to postpone the severer punishment of- conviction of felony until the expiration of an indefinite order of confinement for contempt. In the present case appellant, though convicted, gave bond for appeal, which suspended the execution of the judgment of conviction, therefore there could be no merger into the suspended judgment. The question of priority in enforcing two judgments, one of conviction for felony and the other for contempt, does not arise.

Our conclusion is that there was no error in any of the proceedings, and the judgment in the civil case is affirmed, and in each of the habeas corpus cases brought here by certiorari the judgment is affirmed and the writs of certiorari quashed. It is so ordered.

Haet, J., dissents.


source: Caselaw Access Project

author: HaRt, J.

license: Public Domain

text:
    Perkins v. State.
    Opinion delivered April 27, 1925.
    1. Criminal law — withdrawal of evidence — prejudice.—Where defendant in a prosecution for assault with intent to kill, asked the .prosecuting1 witness concerning such collateral matters as whether the witness 'had killed his brother, assaulted a deputy sheriff, or cut off some of his fingers to avoid draft during the war, he was bound by the negative answer of the witness, and was not prejudiced by court -withdrawing such testimony from the jury.
    2. Witnesses — cross-examination as to bias. — It was not error on cross-examination of a State’s witness, who had testified that she disliked the defendant, to refuse to permit her to be asked why she disliked him.
    3. Homicide — assault to kill — intent.—Specific intent to take life is an essential ingredient of an assault with intent to kill.

      4. Homicide — intent—statement of defendant. — In a prosecution for assault with, intent to kill-, a statement made by defendant two months after the shooting that he intended to kill the iposecuting witness, and if he had had the pistol that he wias then carrying he would have killed him, was competent to show defendant’s intent at the time of the shooting.
    Appeal from Little Biver Circuit Court; B. E. Isbell, Judge;
    affirmed.

      James S. Steel, DuLaney & Steel, and Otis Gilleylen, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   HaRt, J.

J. IT. Perkins prosecutes this appeal to reverse a judgment of conviction against him for' the crime of assault with intent to kill.

Briefly stated, the facts are that, in January, 1924, J. TJ. Perkins shot Malvin Hudson three times with a pistol, at the railroad station at Foreman, in Little Biver County, Arkansas. Both parties were engaged in operating service cars, and both solicited the same passengers as they alighted from the train. Hudson secured a passenger which Perkins was trying to get. After Hudson had helped the passenger in his car,' Perkins commenced to shoot at him. The first shot struck Hudson in the hack, and two others also lodged in his body. Perkins afterwards stated that, if he had a better pistol, he would have killed Hudson. Hudson, at the time, was unarmed and was making no attempt whatever to assault Perkins. The jury fixed the punishment of Perkins at three years in the State Penitentiary. No reversal of the judgment is asked on the ground that the evidence is not legally sufficient to support the verdict, or that Ms punishment is excessive.

The only ground relied upon by the defendant for a reversal of the judgment is that the court erred in admitting and excluding evidence.

In the first place it is earnestly insisted that the court erred in excluding the testimony of Malvin Hudson with reference to killing his brother, to assaulting a deputy sheriff, and as to cutting off his own fingers in order to avoid the draft.

On cross-examination Hudson was asked if he had not killed his brother. He replied that he had not; hut that, when he was a little boy about nine years old, he had gone hunting with his brother and, while going through a fence, his gun was accidentally discharged and killed his brother. He was then asked if he did not assault a certain deputy sheriff, and he replied that he had not. He was then asked if he had not cut off some of his fingers in order to avoid the draft during the World War. He answered that he had not. These were all collateral matters, and the defendant was bound by the answers of the witness. McAlister v. State, 99 Ark. 604; Pearrow v. State, 146 Ark. 201; and Tullis v. State, 162 Ark. 116.

The object of cross-examining a witness in collateral matters is to enable the jury to comprehend just what sort of a person they are called upon to believe. The defendant being bound by the answers of the witness on these collateral matters, it is manifest that he was not prejudiced by withdrawing the testimony from the jury.

In this connection it is also insisted that the court erred in. excluding all the testimony with reference to the antecedents and associates of the prosecuting witness, Malvin Hudson. The only other matters that were excluded were where the witness had answered no to the questions propounded to him, and his answers in the negative show that his character was not in the least affected by the questions' and answers. Hence no prejudice resulted to the defendant, and it is well settled that this court only reverses for prejudicial errors.

The next assignment of error urged for a reversal of the judgment is that the court erred in not allowing Mrs. J. C. Ward to state the particular matter which caused her to have ill feeling against the defendant. She had been asked whether or not she had any ill feeling against the defendant, and had answered no. She was then asked if she disliked him, and replied that she did. This was snfficient, and the court did not err in refusing to allow her to he asked the particular matter which caused her to dislike the defendant. Her dislike of him, and not the reason for it, would he the cause which might affect her credibility as a witness.

The next assignment of error is that the court erred in allowing Mrs. J. C. Ward and Mrs. Jennie Prichett to state that, two months after the shooting, the defendant told them that he intended to kill Malvin Hudson, and, if he had had the pistol that he was then carrying, he 'would have killed him.

One of the essential ingredients of the offense of assault with intent to kill is the specific intent to take life, and this testimony was competent, with the other evidence, tó show that the defendant intended to kill Hudson when he shot him. Davis v. State, 115 Ark. 566. No other assignment of error is relied upon for a reversal of the judgment.

It follows that the judgment will he affirmed.


author: Habt, J.,

text:
    Richardson v. Stuberfield.
    Opinion delivered April 27, 1925.
    1. Vendor and purchaser — contract not completed when.— Where defendant’s offer by letter to purchase plaintiff’s land stated that if defendant’s terms were acceptable to plaintiff he would close the deal on a certain date, and if he did not hear from plaintiff before that time he would consider the offer refused, but defendant by letter withdrew the offer and refused thereafter to purchase the land, there was no completed contract.
    2. Frauds, statute op — sale of land — memorandum.—A letter offering to purchase land for a certain price is not of itself a sufficient memorandum to satisfy the statute of frauds where it in no way described or gave any means of identifying the land.

      3. Vendor and purchaser — sale — description. — Every contract for the purchase of land must define its identity and fix its locality, or there must be such a description as ¡by aid of parol evidence will readily point to its locality and boundaries.
    4. FRAUDS, statute OF — sale OF land — certainty.—An agreement for the sale of land, which is required to be in writing by the statute of frauds, must be certain in itself or capable of being made certain by reference to something else.
    5. Specific performance — insufficiency of description of land. —Specific performance of a contract for the sale of land will not be decreed where it in no way described or identified the land.
    Appeal from Cleveland Chancery C'onrt; John M. Elliott, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    James W. Stuberfield and others brought this suit in equity against Charles Richardson for the specific performance of the sale of a tract of land in Cleveland County, Arkansas. The defendant denied that he had made a contract with the plaintiffs to purchase the land, and also pleaded the statute of frauds.
    It appears from the record that J. W. Stuberfield and Rufus Stuberfield had purchased from C. K. Elliott and C. K. Elliott, Jr., 1,636 acres of land lying in the Saline River bottoms in Cleveland County, Arkansas. Charles Richardson came down from Camden, Arkansas, to look at the land with the view of purchasing it. He was shown over the cultivated land, and the high-water marks were pointed out to him. Upon Ms return home, Charles Richardson wrote to J. W. Stuberfield of the date of October 28,1922, a letter the body of which is as follows:
    “Dear sir: After thinking over the condition of the houses on your holdings, which are in very bad condition, and realizing that the expenditure I will very necessarily have to make in repairing said improvements, I have decided that I am willing to close out with you for the said 1,636 acres, together with all movable property, for the sum of ($60,000) sixty thousand. Now if this is acceptable to you, write me by return mail, and I will be up there next Thursday, November 2, to close out with you as heretofore agreed to.

      “If I do not hear from you by letter or in person before this date, I shall take and accept your silence as meaning that you do not accept the term, and I will therefore consider the matter closed.
    “Yours very truly.”
    This letter was received by J. W. Stuberfield at Rison, Arkansas, in due course of mail. On the 30th day of October, 1922, Richardson wrote Stuberfield another letter in which he notified him that he would not buy the land. Stuberfield did not receive this letter in due course of mail, because he had gone to see Richardson for the purpose of closing the deal with him after he had received the first letter. When Stuberfield arrived at Richardson’s house, he told him that he had received his letter and had come down at once to let him know that he accepted the proposition that had been made him for' the purchase of his land. Richardson told Stuberfield that he had written him another letter. Richardson’s daughter married that night, and nothing more was said between the parties until the next morning. Stuberfield again told Richardson that he had come down to accept his proposition, and Richardson then told him that he had bargained for another place, and could not take his farm. Stuberfield later met Richardson at Camden, and Richardson told him that he would not take his place.
    .Charles Richardson was a witness for himself. According to his testimony, J. W. Stuberfield had represented to him that the farm which he looked at did not overflow, and, after he had written the first letter, which is copied above, Richardson found out that the land did overflow, and, for that reason, declined to purchase it. Evidence was introduced by him to corroborate his testimony. Richardson told Stuberfield, when he came to see him to accept his proposition for the purchase of the land, that he could not take the place, and that he had previously written him to that effect. Stuberfield replied to him that he had not gotten the letter.

      On the part of Stuberfield evidence was introduced tending to show that the land in question did not overflow.
    The chancellor found the-issues in favor of the plaintiffs, and a decree of specific performance was entered of record in their favor against the defendant. The case is here on appeal.

      Gaughan & Gifford, for .appellant.

      Danaker & Danaher, for appellee.
   Habt, J.,

(after stating the facts). The decree was wrong, for two reasons. In the first place, there was no completed contract of any kind between the parties for the purchase and sale of the land. It is the theory of the plaintiffs that the contract was completed when J. W. Stuberfield orallly accepted the proposition contained in the letter written to him by Charles Richardson on the 28th day of October, 1922. It will be noted from the terms of this letter that there was something more to he done between the parties. Richardson stated that, if his terms were acceptable to Stuberfield, he would be up there on November 2, 1922, to close out with him as theretofore agreed to. The letter showed that the contract was not complete and something, else remained to be done between parties.

It is true that Stuberfield went to see Richardson and told him that he had come to accept his proposition. Richardson, however, at once told Stuberfield that he had changed his mind, and did not intend to purchase, the land. Stuberfield could not, by parol, accept the written offer made to him by Richardson while the latter was, at the same time, telling him that he had withdrawn his offer and would not purchase the land. The letter of Richardson was nothing more than an offer to purchase the land from Stuberfield, and he could withdraw it at any time before it was accepted. Stuberfield could not make an oral acceptance of the proposition while Richardson was, for all practical purposes, at the same moment of time withdrawing his offer.

Moreover, the letter of Richardson was not of itself a sufficient memorandum to satisfy the statute of frauds, because it in no way described or gave any means of identifying tbe land sold. Fordyce Lumber Co. v. Wallace, 85 Ark. 1, and Skinner v. Stone, 144 Ark. 353. It is well settled by these and other decisions of this court that every contract for the purchase of land must define its identity and fix its locality, or there must be such a description as, by the aid of parol evidence, will readily point to its locality and boundaries. An agreement for the sale of land which is required to be in writing by the statute of frauds must be. certain in itself, or capable of being made certain by reference to something else.

In the case at bar there is nothing to point out or locate the land. It does not specify the county or State in which the land is situated. It does not state that it lies on any particular stream, or that it is situated near any well known place. It does not even refer to it as a farm known by a certain designated name. No natural object or permanent monument is referred to in the writing. Therefore, a court of equity will not specifically enforce a contract for the purchase or sale of land with such an uncertain description of the land as the one here sought to be enforced.

Our decisions cited above are in accord with the general trend of authorities on the subject. Hall v. Cotton, 167 Ky. 464, 180 S. W. 778; L. R. A. 1916C, 1124; Allen v. Kitchen, 16 Idaho 133, L. R. A. 1917A, p. 563; and other cases cited in 25 R. C. L., p. 650.

In Allen v. Kitchen, supra, the court said: “The distinction, however, should always be clearly drawn between the admission of oral and extrinsic evidence for the purpose of identifying the land described and applying the description to the property, and that of supplying and adding to a description insufficient and void on its face. ”

It follows from the views we have expressed that the decree must be reversed, and the case will be remanded with directions to dismiss the complaint of the plaintiffs for want of equity.


author: Hart, J., Hart, J.,

text:
    Avera v. Banks.
    Opinion delivered April 27, 1925.
    1. Tenancy in common — when created. — Where a widow became entitled to one-half of her husband’s land, on his dying intestate and without children, under Crawford & Moses’ Dig., § 3586, her heirs upon her death became tenants in common with the heirs of her husband.
    2. Tenancy in- common — effect of tax purchase. — Assignment of a certificate of purchase of land under a tax salé to a tenant in common and issuance of a tax deed to him amounts to a redemption by him from the tax sale.
    3. Equity — laches.—A court of equity may, in the exercise of its 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.
    4. Equity — .laches—unreasonable delay. — Where a party, knowing his rights, unreasonably delays in asserting them, and suffers another to enter into obligations or by inaction lulls suspicion of his demand to the harm of the other, assertion of his rights in equity will be barred by laches.
    5. Tenancy in common — record of tax title as notice. — -Where a tenant in common acquired a tax title, and placed his deed on record this was constructive notice to his co-tenants that he was claiming the land as his own.
    6. Partition — laches.—Where the widow of an intestate and her .son paid his debts amounting to the value of the land at that time, of which she then took charge and one-half of which she inherited, and on her death her son claimed the land as his own, -and secured and recorded a tax title thereto, other heirs of intestate who made no assertion of rights to the land nor offered to .pay taxes during 15 years held barred by laches from equitable ■relief by partition of the property.
    7. Judgment — conclusiveness of decree confirming tax title.— A suit by tenants in common to cancel -and set -aside a cotenant’s gas and oil leases and mineral deeds and for partition held precluded by a decree confirming the co-tenant’s tax title, which was regular on its face, there being no contention that the decree was obtained by fraud.
    8. Judgment — conclusiveness of decree confirming tax title.— A decree confirming a tax title is conclusive against an absent claimant as well as -against an intervener who contests petitioner’s right, the proceeding being in the nature of one in rem.

      9. Judgment — decree confirming tax title — minors.—Under Crawford & Moses’ Dig-., § 8391, a decree confirming a tax deed will not tar the right of minors to redeem.
    10. Equity — laches.-—-Minors are not barred by laches.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeGroy,-Judge;
    reversed.
    STATEMENT OE FACTS.
    Appellees brought this suit in equity against appellants to set aside certain deeds and gas and oil leases, and to partition the land described in the complaint between the appellees and the appellants.
    The suit was defended on the ground that appellees had no title to the land in controversy, and also that they were barred of recovery by laches.
    Louis J. Banks died intestate on the 19th day of August, 1907, owning 120 acres of land in Ouachita County, Arkansas. Several years prior to his death, Louis J. Banks married the mother of M. J. Avera, and lived with her on her farm adjoining the land in controversy until his death. No children were born of their marriage. At the time Mrs. Avera married Loúis J. Banks, she had three children, including her son, M. J. Avera. At the time Louis J. Banks died he owed $275, which was paid by Ids widow and M. J. Avera. They took charge of the land in controversy and held it until the widow died on May 9, 1911. After his mother died, the two sisters of M. J. Avera executed to him a quitclaim deed to the land in controversy. M. J. Avera has paid the taxes on the land since the date of his stepfather’s death until the present time. About five acres of the land was cleared, and M. J. Avera made, or caused to be made, four or five crops on it. He first sold the timber for $75, and the purchaser failed to pay for it. In 1922 M. J. Avera again sold the timber on the land for $617. The land was sold on the 8th day of June, 1914, for the nonpayment of the taxes of 1913. T. C. Joyce became the purchaser at the tax sale, and received a certificate of purchase. On the 10th day of May, 1915, T. 0. Joyce assigned Ms certificate of purchase to M. J. Avera, and, on the 13th day of June, 1916, a clerk’s tax deed was executed to M. J. Avera. This deed was duly acknowledged and filed for record on the 7th day of July, 1916. In 1922 the chancery court of Ouachita County entered a decree of record confirming the title of M. J. Avera, based on the sale of taxes for the year 1913. In 1922 oil was discovered in the neighborhood in which the land was situated, and M. J. Avera executed oil and gas leases on said land to different parties, and, in said leases, warranted that he had a good title to said land.
    The consideration for the oil and gas leases amounted to considerable more than $5,000 in money, and also a part of the royalties from the oil and gas which might be found on said land. After his mother’s death, M. J. Avera claimed the land as his own, and appellees never asserted any title or claim thereto.
    According to the evidence 'for appellees, they are either the brothers and sisters of Louis J. Banks, deceased, or the descendants of such brothers and sisters. The husband of one of the sisters admits that he and his wife visited Louis J. Banks during the last year of his life and that he pointed out the land in controversy as belonging to him. After his death none of the brothers and s: ¿ters of Louis J. Banks or their children ever made any claim to the land or paid the taxes thereon. Some time in 1922 M. J. Avera told David Nation, the husband of a sister of Louis J. Banks, deceased, that he had acquired a tax title to the land. The collateral heirs of Louis J. Banks, deceased, did not know, until that time, that the land had been sold for the nonpayment of the taxes. In fact, they never paid any attention whatever to the land, and did not know anything about it. The proof shows that the land was not worth more than $2 per acre until oil and gas was discovered in the neighborhood, in 1922, when the price at once rose to $50 or $60 per acre.

      The chancellor found the issues in favor of appellees, and it was decreed that they had an undivided one-half interest in said land. Judgment was also rendered in favor of the defendants who held oil and gas leases from M. J. Avera, for damages sustained by them on account of the breach of the covenants of warranty contained in their leases.
    The case is here on appeal.

      Gaughan é Sifford, for appellant.

      George R. Haynie and Thomas W. Hardy, for appellee.
   Hart, J.,

(after stating the facts). The record shows that Louis J. Banks died intestate on the 19th day of August, 1907, owning 120 acres of land in Ouachita County, Arkansas. He left a widow and no children. His widow, under the statute, became entitled to one-half of the land. Crawford & Moses’ Digest, § 3536. The widow died intestate on May 9,1911, and left surviving her her son, M. J. Avera, and two daughters as her sole heirs at law. The two daughters executed to M. J. Avera a quitclaim deed to their interest in the land in controversy. In June, 1914, the land was sold for the nonpayment of taxes of 1913, and T. C. Joyce bid in the land at the tax sale and received a certificate of purchase. He transferred his certificate of purchase to M. J. Avera, and the latter received a clerk’s tax deed to the land on J une 13,1916. M. J. Avera and appel-lees held the land as tenants in common, and the purchase by M. J. Avera amounted to a redemption from the tax sale. Cocks v. Simmons, 55 Ark. 104, and Inman v. Quirey, 128 Ark. 605.

The land was never in the actual possession of M. J. Avera after he acquired title under the clerk’s tax deed, and the record does not show that he ever acquired title to the undivided one-half interest of appellees by holding adversely to them for the statutory period. This brings us to a consideration of the main question in the case, and that is whether or not appellees are estopped by reason of lacbes from maintaining this action. There is no hard and fast rale as to what constitutes laches. It is well settled that a 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. Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591; Davis v. Harrell, 101 Ark. 230; Tatum v. Arkansas Lumber Co., 103 Ark. 251; American Mortgage Co. v. Williams, 103 Ark. 484; and Dickinson v. Norman, 165 Ark. 186.

If a party, knowing his rights, unreasonably delays in asserting them and suffers his adversary to enter into obligations, or in any way by inaction lulls suspicion of his demand, to .the harm of the other, then equity will ordinarily refuse to aid him in the establishment of his claim. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to believe, by the silence or conduct of the plaintiff, that there would be no assertion of title in opposition to his claim.

In the case at bar there is no excuse whatever for the delay of appellees in asserting their claim. They knew of the death of Louis J. Banks, from whom they claim to inherit, and knew that his widow and her son took charge of his land. If they had been interested in the matter at all,-they could have known, by inquiry, that M. J. Avera and his mother paid-the debts of her husband to the amount of $275, and that the land was not worth more than this amount. ¡When M. J. Avera acauired his tax title, he at once placed it of record. This at least showed his good faith in the matter, and gave appellees constructive notice that he was claiming the iand as Ms own. They never at any time offered to contribute to the payment of the taxes. The land was not worth more than $2 per acre at any time until oil and gas were discovered in the neighborhood, in 1922. M. J. Avera first sold the timber on the land for $75, and the purchaser refused to make the payment and complete the sale. It is true that he sold the timber for $617 in 1922, but this was after oil and gas had been discovered in that vicinity. During all of the period of time from the death of his stepfather, in August, 1907, until the bringing of this suit, on the 11th day of April, 1923, M. J. Avera paid the taxes on the land. During all of this time appellees did not offer to contribute to the payment of the taxes and did not in any way assert any interest whatever in the land. M. J. Avera informed one of the appellees, in the early part of the summer of 1922, that he had acquired a tax title to the land. No denial of his right to the land was asserted, and, under the circumstances detailed, he had a right to assume that appellees had abandoned any claim to the land. After this time he executed seven or eight oil and gas leases to various parties, and the leases contained a covenant of warranty of title in himself. It is fairly inferable that he incurred these obligations upon the faith that appel-lees had abandoned or waived any claim to an interest in the land. He was justified in so believing, from their long continued silence and conduct in the matter. They remained silent when it was their duty to speak. They do not claim to have been misled in any way by any act of M. J. Avera. No excuse whatever is given for their delay in asserting title to the land, and it may be attributable to their own culpable negligence. ’

In this connection it may be stated that M. J. Avera did not take possession of the land by permission of appellees. He occupied no relation of trust or confidence to them, except that he and they owned the land as tenants in common. He acquired his interest by inheritance from his mother, and appellees inherited directly from Louis J. Banks. These facts render appel-lees guilty of laches in not sooner asserting their rights and making it inequitable to divest numerous purchasers of the rights which they had acquired under their oil and gas leases. It will he remembered that what appeared to be a valid tax title to M1. J. Avera in 1916 was of record, and appellants had a right to believe that appellees had acquiesced in its validity by their delay and negligence in failing to have it set aside, or to contribute in any way to the payment of taxes or the amount necessary to have redeemed the land from the tax sale. This tax deed was of record, and was constructive notice to appel-lees as well as to the purchasers, securing rights under the oil and gas leases of the title claimed by M. J. Avera.

Appellees brought this suit against appellants. The relief sought by them is equitable; They ask that numerous oil and gas leases and mineral deeds to said land, executed by M. J. Avera to various persons, be canceled and set aside, in so far as their right and interest in the land are concerned. They also ask for partition of the land. They allege that the leases and mineral deeds to said land executed by M. J. Avera to various persons are a cloud upon the title of appellees. Having sought equitable relief, the doctrine of laches applies, and appellants had the right to interpose it as a defense to the action. Rowland v. McGuire, 67 Ark. 320; Berg v. Johnson, 139 Ark. 243; and Beattie v. McKinney, 160 Ark. 81.

Moreover, the appellees are precluded from maintaining this suit by the decree confirming the tax title of M. J. Avera, which was entered of record in the chancery court on September 18,1922. That decree is regular on its face, and every question with respect to the assessment of the land in controversy, or the nonpayment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by it. Worthen v. Ratcliffe, 42 Ark. 330, and Cocks v. Simmons, 55 Ark. 104.

Of course, the decree to confirm the tax title of M. J. Avera might be assailed on the ground that it was obtained by fraud, or, what would amount to the same thing, a concealment of the facts from the court rendering it. The decree of confirmation, however, is not attacked on that ground, and there is nothing in the record to show that it was obtained by fraudulent representations.

The- decree recites on its face that M. J. Avera claims title under a tax deed basis on the sale of the land -for the taxes for the year 1913. He filed the original tax deed with the proceedings. The tax deed recites that T. C. Joyce bid in the land at the tax sale in June, 1914, and transferred his certificate of purchase to M. J. Avera. On the 13th day of June, 1916, the clerk made a tax deed to said M. J. Avera. This deed was duly filed for record on the 7th day of July, 1916. M. J. Avera complied with the statute in every respect in seeking to confirm his tax title.

It is true that the purchase by M.. J. Avera of the certificate of purchase issued to T. 0. Joyce amounted to a redemption of the land from the tax sale, if his tenants in common had elected to so treat it. The sale to him, however, was not absolutely void. It was only voidable at the election of his tenants in common. They might think the land was not worth paying taxes on, or they might have known that Banks owed $275; that the widow and M. J. Avera had paid this debt, and that the land was not worth more than this sum. Hence they had the right to refuse to contribute anything to its redemption from the tax sale. Such an action on their part would amount to an abandonment or waiver of their rights in the land. The record of the tax deed gave appellees constructive notice of its existence. . One of the appellees was actually notified by M. J. Avera, in the first part of the summer of 1922, that he had a tax deed to the land. This was before the decree in “the confirmation suit. Hence it cannot be said that there is anything in the pleadings or proof to show that the confirmation decree was obtained hv fraud.

This court has held that the petition in a suit to confirm a tax title is like a proceeding in rem, where the jurisdiction of the court over the controversy is founded on the presence of the property, and the decree becomes conclusive as well against the absent claimant as against any who may intervene and contest the petitioner’s rights.

The views we have expressed call for a reversal of the decree of the chancery court, and the case will be remanded with directions to dismiss the complaint of appellees for want of equity.

Hart, J.,

(on rehearing.) 'Counsel for appellees in their motion for a rehearing insist that under § 8391 of CraMord & Moses’ Digest the confirmation of the tax deed by appellants does not bar those of the appellees who are minors. In this contention counsel are correct. In addition to the section of the statute just referred to is cited the case of Smith v. Thornton, 74 Ark. 572, in which it was held: “A decree confirming a tax title cuts off attacks on the title for informality or illegality in the proceeding in reference to the sale, but does not cut off the right to redeem from the sale which is reserved by the statute to insane persons, minors or persons in confinement, and which may be exercised within two years from and after the expiration of such disability. ’ ’

This holding, however, does not help the ease of appellees any. They insist that minors cannot be barred by laches. In this contention they are also correct; but the trouble about this contention is that the parents of the minors were barred by laches, (and therefore the minors never acquired any rights in the land by descent from their parents. Some of the minors are descended from William Banks, who was a brother of Louis J. Banks, deceased. William Banks died in the month of November, 1887. He left surviving him several children, all of whom were adults. One of his children, Belva Kelley, who was twenty-six years old at the date of her father ’s death, died in the year 1913, leaving surviving her several minor children who are plaintiffs in this action. Adrian Banks, a son of William Banks, deceased, was .thirty-two years of age at the time his father died. He died in 1914, leaving surviving him several minor children who are also plaintiffs in the action. Mrs. N. V. Nation, a. sister of Louis J. Banks, deceased, died in December, 1919. Some of her grandchildren who are minors are also plaintiffs in the action.

Now it will he remembered that Louis J. Banks died about the first of August, 1907. He owned no property except the tract of land in question in this lawsuit, and it'was wild and unimproved. He owed debts which the undisputed evidence shows were something more than the value of the land. Under our statute lands are assets in the hands of an executor or administrator for the payment of the debts of the testator or intestate. Crawford & Moses’ Digest, § 152, and cases cited. There being no personal property left by Louis J. Banks, the tract of land in question became at once subject to the payment of his debts. His brothers and sisters knew of the fact of his death, and failed to assert any rights in the land.

M. J. Avera and his mother, who was the widow of Louis J. Banks, deceased, took charge of his land and paid his debts. If the brothers and sisters of Louis J. Banks, deceased, wished to assert their rights in the land, they should have done so, and Avera and his mother might have had the land sold for the payment of his debts and have thus acquired the legal title thereto.

Hnder the circumstances, it became the duty of the brothers and sisters of Louis J. Banks to assert their claim in the land after his death. They were all adults and lived for six or seven years after his death. Therefore, they were barred by laches at the date of their death and their minor children and grandchildren never acquired any interest in the land.

Belva Kellev died first, and she did not die until over six years after the death of Louis J. Banks. Her brother died the next year, and Mrs. Nation did not die until 1919. Therefore, we are of the opinion that the ancestors ef all the minors were barred by laches of any right of recovery of the land in question at the date of their death, and for that reason their minor descendants never acquired any interest in it.

It follows that the petition for ia rehearing must be denied.


author: Smith, J.

text:
    Heltzel Steel Form & Iron Company v. Fidelity & Deposit Company of Maryland.
    Opinion delivered April 27, 1925.
    Highway — liability op surety on contractor’s bond. — One who sells tools, implements and appliances for nse in constructing a road is not entitled to recover on the contractor's bond given under Crawford & Moses’ Dig., § 5446, to indemnify persons supplying labor and materials used in the prosecution of the work.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      John M. Rose, for appellant.

      Horace Chamberlin, for appellee.
   Smith, J.

This is a suit to recover the purchase price of material furnished by appellant to Machen & Thompson, road contractors, in the construction of roads in Improvement District No. 10 of Pulaski County, Arkansas. The construction contract was let by the improvement district to the Standard Paving Company, which sublet certain portions of the roads to Machen & Thompson. The Fidelity & Deposit* Company of Maryland, appellee herein, executed bonds, pursuant to the statute under which the improvement district was organized, requiring the contractor to give bond. Machen & Thompson ivere adjudged bankrupts, and this suit is against appellee as surety on the contractor’s bond, guaranteeing the. payment of all bills for labor and material on said work.

A demurrer was filed to the complaint, which was sustained, and, as the plaintiff elected to stand on the complaint, it was dismissed, and this appeal raises the question of the sufficiency of the complaint against appel-lee as surety on the bond of the road contractors.

The material allegations of the complaint are as follows: “Plaintiff further states that the goods and material supplied by it to the contractors aforesaid consist of rigid steel road rails, angle-face rails, patented pedestals, flat stakes and stake pullers. That none of said material actually entered into said road so as to become a component part thereof, but that all of it was used in each and all of the aforesaid sections of said road, and that each and all of said bonds render the bond company liable for payment thereof. That the material aforesaid was used in the construction of concrete bridges, culverts, and the like, and became greatly worn and depreciated by said use; and that the aforesaid material furnished by plaintiff is practically worthless by reason of the use aforesaid.”

The question presented on this appeal is one which wo have frequently and recently considered. These cases are cited in the recent opinion in the case of Pierce Oil Corporation v. Parker, 400, and what was there said is decisive of this appeal.

That ease, like this, was based on § 5446, C. & M. Digest, which provides that contractors shall be required to give bond for the faithful performance of construction contracts awarded them, and that such contractors shall promptly make payment to all persons supplying labor or material in the prosecution of the work contemplated by such contract.

In that case Parker, the contractor, executed the bond required by law in the performance of his contract, and a subcontract was let to Stephens to haul all of the crushed stone to be used in the construction of the road. Stephens hauled a large amount of stone, which was used in the • construction of the road, in motor trucks, and bought from the plaintiff in the case the oil and gasoline which was used in operating the trucks. Stephens failed to pay, and plaintiff brought suit against the contractor and the road improvement district for the price of the oil and gasoline which had been furnished Stephens. The court below directed a verdict in favor of the defendant, from which the plaintiff appealed.

Our opinion in that case recognized the sharp division in the authorities as to the line of demarcation between liability and nonliability for materials furnished in the construction of such improvements. After pointing out that certain courts had held that, under similar statutes requiring contractors of public works to furnish bonds to pay for materials or supplies furnished, recovery may be had on the bond for gasoline used in trucks to haul gravel, etc., for road construction, we cited cases holding to the contrary, and adopted their reasoning as declaring the true rule of liability under such bonds.

After stating that all the cases had held that there was a lien for dynamite employed directly to the earth which had to be removed, because it was an essential part of the construction to break up the earth, and the dynamite used for that purpose entered primarily in the construction of the improvement, we said that fuel used for portable engines and machinery used in the construction work are merely an incident in the operation of the machinery and partake of the same characteristics as it (Joes, and that the item of fuel is one step further removed from the actual work of construction, and did not have any immediate connection with the structure at any time. We said further: “Courts must stop somewhere in the construction of these statutes. Otherwise, repairs on the machinery used in the construction of the improvement and the diminished value of the machinery and tools used in such construction will be deemed to be lienable claims. If matters which are only remotely connected with the construction of the public improvement should be held to be lienable, the protection of the bond to the class intended by the statute would be greatly impaired” (citing cases).

The material here furnished and sued for no doubt performed an essential service, but this material must be regarded and treated as any other essential tool, implement or appliance would be which was used in the construction of the improvement. These tools, implements and appliances may be essential in the construction of the improvement, but they do not enter into it, and form no part of the completed improvement,'and, under the line which we drew in the recent case from which we have quoted, the plaintiff was given no cause of action by the statute on the bond of the contractors, and the demurrer to the complaint was therefore properly sns-Hi'-n-rl, ond the .judgment of the court below is therefore affirmed.


text:
    Eady v. State.
    Opinion delivered April 27, 1925.
    1. Intoxicating liquors — evidence op selling. — Evidence held to sustain a conviction of selling' -whiskey.
    2. Criminal law — admission op evidence — review.—The admission of evidence must be reviewed in the light of the circumstances at the time of the objection and ruling.
    3. Criminal law — admission of evidence — review.—In a prosecution for selling whiskey, admission of a witness’ testimony that another had bought whiskey from defendant for him was not objectionable as relating to a transaction had in the witness’ absence, where that fact did not appear until subsequently, upon that fact being developed, the remedy was by motion to exclude the testimony.
    4. Criminal law — instructions already given. — Refusal to give written instructions covered by oral instructions given was not error, in the absence of a request that they be reduced to writing
    5. Criminal law — reputation of accused. — While accused’s good reputation may be considered along with the other evidence in the case in determining whether he is guilty, it is not error to refuse to charge that his good reputation may he considered as a circumstance in his favor.
    6. CRIMINAL LAW — TRIAL—CONDUCT OP COURT. — The court’s action in asking a jury to state how they were divided as to numbers, without indicating how they stood as to parties, to which they answered that nine were for conviction, and three against, held not reversible error as intended to influence or as actually influencing the verdict.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      John E. Miller and Cul L. Pearce, for appellant.

      II. W. Applegate, Attorney General, .and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant was convicted for selling whiskey. The testimony on behalf of the State abundantly sustains the jury’s verdict, as several witnesses testified that they had made a number of different purchases of whiskey from appellant.

The principal assignment of error is that the court erred in admitting certain testimony of Lilhurn Malott. This witness testified that he had bought whiskey from appellant within three years of the date of the. indictment, and, in his examination by the prosecuting attorney, he testified as follows:

“Q. Do you know anything about Harry Burkett buying any whiskey from him? (I object to that; objection overruled; I except.) A. Yes sir. Q. What do you know about that? (I object to that. The objection is overruled. I except.) A. I got Harry to — (I object to that. Objection is overruled. I except.) Q. Don’t tell what you said to Harry Burkett now, hut what arrangements or what was done by you and Harry Burkett? A. Harry Burkett bought some whiskey from Jim Eady for me. (I except to that.) ”

The objection urged to this testimony is that the witness was allowed to testify concerning a transaction which took place between himself and Harry Burkett in appellant’s absence.

The ruling of the court must he reviewed in the light of the circumstances as they appeared at the time the testimony was objected to and the ruling made. The witness was first aslced if he knew anything about Harry Burkett buying any whiskey from appellant, which was, of course, competent, and the objection was properly overruled. The witness was next asked what he knew about a sale, a question which was likewise competent, and, after being admonished not to tell any conversation he had with Burkett, he answered that Burkett, had bought whiskey for him from appellant.

There was nothing in the objections made to this testimony to call the attention of the court to the fact that the witness was testifying to a transaction between Burkett and appellant in the absence of the witness. So far as the court may have known from the questions asked and the answers given, the witness may have been testifying to a transaction which he had witnessed, and, if it be said that the subsequent testimony of this witness, together with his cross-examination, makes it plain that the witness was in fact testifying to a transaction which occurred between appellant and Burkett in the absence of the witness, and about which the witness could have no personal knowledge, it may be answered that, after this fact was so developed, there was no motion to exclude the testimony, which was apparently competent at the time it was given.

Appellant asked instructions, which the court refused to give, but which were covered by the oral instructions given by the court. The objection to this action was not that the instructions were not reduced to writing, but that the requested instructions were not given. Inasmuch as the points embraced in the requested instructions were covered by the oral instructions, no error was committed in refusing the instructions requested.

Moreover, it may be said that the instructions refused dealt with the presumption of innocence and the right of the defendant to testify, and the manner of weighing that testimony. These instructions were simple in their nature, and there was no opportunity for disagreement about what the court had declared the law to be on these subjects.

As was said in the case of Merrill v. City of Van Buren, 125 Ark. 248, this is not a case where a copy of the instructions refused and given would have been required in a discussion before the jury of the law of the case as applying to the evidence, nor one in which there was opportunity for disagreement in settling the bill of exceptions, and it may be said here, as was said there, that it affirmatively appears that no prejudice resulted from the failure of the court to reduce the instructions given to writing.

Appellant requested an instruction numbered 5, reading as follows: “If you find from the evidence that the defendant has, prior to the filing of the indictment herein, borne a good reputation in the community in which he lives as being a law-abiding citizen, that you may consider this fact as a circumstance in his favor.”

The court refused to give this instruction, and it is insisted, upon the authority of the case of Rhea v. State, 104 Ark. 162, that this action was error.

A comparison of this instruction with the one approved in the case cited will show a material difference. The instruction in that case told the jury that the evidence of good character should be considered, along with the other evidence in the case, in determining whether the accused was in fact guilty of the offense charged.

The instruction requested contained no such qualification, but would have told the jury as a matter of law to consider good reputation as a circumstance in the accused’s favor, whereas the rule, as stated in the Rhea ease, is that evidence of good character should be taken into consideration, with all the other evidence in the case, in passing upon the guilt or innocence of the accused, and that if, up'on the whole evidence, that of good character with the other testimony, the jury believed the guilt of the defendant was proved beyond a reasonable doubt, the defendant’s good character would not constitute a defense.

It is proper for the jury to. consider such testimony, but it should be considered in connection with all the testimony in the case, and it would not be proper in any case for the court to tell the jury what weight to attach to such testimony.

The record recites that, after the jury had been considering the case about half an hour and the adjourning time had arrived, the court directed the sheriff to bring the jury into court, and thereupon the court asked the jury if a verdict had been reached, and, upon being informed that no verdict had been arrived at, the court said: “Gentlemen of the jury, without indicating how you stand as to parties, you can state how you are divided as to numbers,” whereupon the foreman, in open court, said: “We stand 9 for conviction and 3 for acquittal,” to which said action of the court and the statement of the foreman of the jury in the presence of the court the defendant at the time excepted.

While we have said that this was not a practice to be commended, we also said, in the case of Evans v. State, 165 Ark. 424, that reversible error was not committed where the court asked how the jurors stood-numerically, but did not ask for a statement as to the side, on which the majority stood, and a juror, in response to the question, stated the number voting for acquittal and the number voting for conviction, if there was nothing in the remarks of the court eliciting the response which was calculated to unduly influence the jury in arriving at a verdict.

We have set out the recitals of the record in regard to the court’s question, and we think it affirmatively appears that this action of the court was not intended to, and did not, influence the verdict of the jury.

It is finally insisted that, during the trial, the jury was permitted to separate without being admonished, aS required by the statute, that it was their duty not to permit any one to speak to or communicate with them on any subject connected with the trial, and that all attempts to do so should be immediately reported to the court, and that they should not converse among themselves on any subject connected with the trial or to form or express any opinion thereon until the case was finally submitted to them. There appears, however, to be nothing in the record upon which to base this assignment of error.

No error appearing, the judgment is affirmed.


author: HUMPHREYS, J.

text:
    Cotton v. Downs.
    Opinion delivered April 27, 1925.
    1. Rewards — right to participate in. — Persons pursuing robbers in an effort to secure rewards offered for their capture, working independently of each other with no agreement for concerted action, are not entitled to participate in such rewards where the capture was effected by others.
    2. Rewards — right to share in. — Where bank robbers were being pursued by parties working independently of each other, one who first ’ discovered the robbers, and, in attempting to effect their capture, pursued them into the hands of others, was entitled to share in the reward, it being clear that but for his pursuit they would not have ibeen captured at that time and place.
    Appeal from Benton Chancery Court; G. T. Sullins, Special Chancellor;
    reversed.

      Vol T. Lindsey, Bice & Bice and W. 0. Young, for appellant.

      A. L. Smith, for appellee.
   HUMPHREYS, J.

This suit was commenced in the chancery court of Benton County by Henry Cotton against the Benton County Bankers’ Association, the Maryland Casualty Company, and the Protective Rewards Committee of the Arkansas Bankers’ Association, to recover the several standing rewards offered by each of them for the capture and conviction of any bank robber. He alleged that he effected the capture of Perry Ingram and Fred Martin, who robbed the State Bank of Decatur, between one and two o’clock on the afternoon of February 28,1923, and who afterwards pleaded guilty to the crime and were sentenced to serve a term in the penitentiary as punishment therefor. C. A. Downs and A. Brogdon filed their interplea, alleging that they captured the robbers, and were entitled to the rewards. J. S. Scott, Pat Howard, W. L. Strickland, Ray M. Scrog-gins, Louis Miller, Walter Bryson and J. S. Strickland filed their interventions alleging that the capture of the robbers was the direct result of the efforts of the plaintiff, the interpleaders and interveners, and prayed for an equal pro rata share of the reAvards.

Zack Cotton also filed an intervention, alleging that he participated in the capture of the robbers, and prayed for a portion of the rewards. The defendants entered their several appearances, and were permitted to pay the several rewards in to the clerk of the court, under the terms of the offers to the effect that, where more than one person should claim the rewards, the rights of the claimants should be adjudged by the chancery court.

Pursuant to the terms of the offers, the cause was submitted to the chancery court upon the pleadings and testimony adduced by the several claimants, which resulted in a decree adjudging the entire amount of the several rewards to the interpleaders, C. A. Downs and A. Brogdon, after deducting the cost of the proceeding, from which decree an appeal has been duly prosecuted to this court.

The robbers, several other parties, and all the appellants except the Stricklands, testified in the case; so the record is quite A^oluminous. It would extend this opinion to an unusual length to set out the substance of the testimony of each witness, so only a general summary of the testimony as a whole will be attempted.

The robbers were inexperienced young men in crime, Perry Ingram being a railroad man from Harrison, Arkansas, and Fred Martin being a miner from Weir, Kansas. They entered the State Bank of Decatnr between one and two o’clock ón February 28, 1923, and successfully effected a daylight robbery. They escaped with more than $2,000, consisting of five sacks of silver and a large amount of greenbacks. They hurriedly left Decatur in an automobile, driving in a northwesterly direction toward the Oklahoma line, into a wild, mountainous region, where they might easily conceal themselves in the woods, ravines, and gorges, and which region would serve as a shield or protection against their probable pursuers until the darkness of the night would enable them to get out of the country. After driving very rapidly for a distance of seven miles, they abandoned the car, first setting it on fire, and hastened with the money and their firearms into the woods. News of the robbery was telephoned to Gentry, other nearby towns, and throughout the country. As soon as the robbery was noised abroad, four separate parties of men, acting independently, procured arms and hotly pursued the robbers towards the Oklahoma line. Two of these parties left out of Decatur, and two out of Gentry. The first party to leave Decatur was headed by Henry Cotton, a man between sixty and seventy years of age, weighing over 200 pounds. He hastily procured a shotgun and eight cartridges loaded with.No. 4 shot. There were three other armed men in the party, viz., Zack Cotton, his son, Pat Howard, and Carl Strickland. The second party to leave Decatur was headed by the constable of the township, J. S. Scott. There were four others in the party, viz., Walter Bryson, Luther Strickland, Ray Scroggin and Louis Miller. Miller owned the car in which they traveled, and was unarmed. The first party to leave Gentry was Marion Wasson,, in company with Dan Pyeatt. Marion Wasson was the president of the Benton County Bankers’ Protective Association. The second party to leave Gentry was headed by O. A. Downs. There were three other men in the party, viz., A. Brogdon. Arthur Steele, and Clarence Batcliff. George Maples, the sheriff of the connty, also joined in the chase. The several parties pnrsned the robbers in automobiles, and none of them knew that the others were in pursuit of the robbers, except as they came upon each other at different times in the chase. Cotton and his men first discovered the burning car which the robbers had abandoned. "While they were engaged in putting out the fire and saving the car, Marion Wasson and Dan Pyeatt drove up. They concluded to go on west and try to head the robbers off before they reached the Oklahoma line. After Wasson and Pyeatt had gone on, and during the time Cotton and his party were putting out the fire, Scott and his party arrived on the scene. After rolling the car into Mrs. Tibbs’ yard, near by, the Cotton party and Scott party returned to their cars and drove in a westerly direction, to a point at the end of the ridge, from which they could get a good view of the surrounding country. After Marion Wasson and Dan Pyeatt left the Cotton j^arty, they came upon Downs and his party, some distance to the west, in the vicinity of Coon Hollow. Was-son informed Downs and his party that the robbers had abandoned and set fire to the car at the Tibbs place, and had entered the woods. Wasson again concluded to go further west, and Clarence Batcliff and Arthur Steele decided to follow Wasson and Pyeatt. Downs and Brogdon decided to leave the car and search for the robbers in Coon Hollow; so they got out of the car and proceeded to do so. Several of the men in the Cotton and Scott parties thought they saw the robbers in the large hollow adjacent to the high point where they bad driven to get a good view of the country, but the men they took to be the robbers immediately passed out of their sight. These two parties broke up into smaller parties of twos and threes and searched out the woods in different directions for the robbers. Henry Cotton and those with him returned to the noint where they had left the cars, and decided to go in Miller’s car down to the Keith ulac.e, about one-half mile distant. After getting to the Keith place, Cotton proceeded to the top of a hill, where he could get a better view of the surrounding country. Scott was of the opinion that they could catch the robbers at-the bottom of the hill as easily as they could on top. Miller followed Cotton about half-way up the hill, and stopped. 'Scott .remained at the bottom of the hill. After reaching the top, Cotton observed two men with Winchesters at a distance of about 100' yards from him. hie thought they belonged to his party, but, when they had approached within fifty yards, he concluded that they were the robbers; so he asked Miller, who was in hearing distance, to come to him. The robbers heard him, turned in the direction of Coon Hollow, and„began to run. He ordered them to halt, and, when they refused to do so, he fired at them, and continued to shoot until he lost sight of them. On account of his weight he was unable to keep up with them, but he followed them and shot his gun in the air from time to time to attract the attention of those whom he had left behind in his party. C. A. Downs and A, Brogdon, who had been searching for the robbers in Coon Hollow, heard a shot. They talked about it, and finally concluded that it was fired by a squirrel hunter, as they heard no others. While sitting near a creek which runs through the hollow, they observed two men hurriedly coming toward them off the mountain. They concluded that they were the robber's, since they were heavilv armed; so Downs advised Brogdon to move away from him a short distance, and not to shoot. They both stooned down, and waited until the men came across the creek into an onen snace about fortv or (fifty feet from them. Downs then arose and leveled his rifle. fmon them, andemanded that they dron Heir guns and throw nn their hands. Thev dromoed their guns, but one of them hesitated about throwing up his hands. Downs then reported to the ruse of ordering, in a loud voice, every one to close un. The other then raised his han^a. Downs continued to cover them with his rifle, and renuested Brogdon to take their pistols. Brogdon immediately complied with his request, and, after taking their pistols, covered them with same until Downs relieved them of the greenbacks they had stolen from the bank. The prisoners requested cigarettes, which were given them, with the understanding that they should not lower their hands. While they were smoking, Downs gave a blast of his horn, and shot rapidly into the air to attract the attention of Wasson, Pyeatt, Steele and Ratcliff, who had left them shortly before and gone in a westerly direction in the hope of heading the prisoners before they reached the Oklahoma line. The testimony is conflicting as to- the order in which the various parties arrived in response to the call. Cotton testified that he was in hot pursuit of the fugitives when they ran into D/owns and Brogdon, and that he was the first to arrive. Others testified that quite a crowd had gathered when Cotton reached the scene. Miller and Scott came up in a short time. The sheriff arrived, and took charge of and handcuffed the prisoners. The prisoners testified, that they were captured about fifteen minutes after Cotton discovered and shot at them, and that they had run a little over a quarter of a mile in an endeavor to escape from him. They were taken back to the large hollow where they were first seen, for a few moments, by three men in Cotton’s and Scott’s parties. The prisoners had hidden the five bags of silver over in the large hollow, and they were found, and returned along with the greenbacks, to the bank.

It is apparent from the resumé of the testimony, which we think substantially correct, that no concert of action had been agreed upon when the several parties entered upon the endeavor to earn the rewards by complying with the terms of the offers. The fact that Marion Wasson and his companion, Dan Pyeatt, as well as Arthur Steele and Clarence Ratcliff, claimed no part of the rewards, is significant as showing that no agreement for concert of action had been entered into between the several parties before an endeavor was made to earn the rewards. Only a short time before the capture was effected, Wasson and Pyeatt had come in contact with Downs’ party, and had informed them that the robbers had abandoned .their car and were on foot in the woods. Arthur Steele and Clarence Ratcliff had brought Downs and Brogdon to Coon Hollow. This points to the fact that no concert of action was agreed upon between the several members of the Downs party, which left Gentry together, much less that any arrangement for concert of action had been agreed upon between the Downs, Cotton, and Scott parties. In fact, the record reveals that, when these several parties were organized and went in pursuit of the robbers, neither party knew of the action of the other or that the other had entered upon the search. The record therefore clearly presents a case of parties 'acting independently of each other in an endeavor to earn rewards by capturing and convicting bank robbers. This being the case, we cannot agree with the contention of the interveners that all parties participating in the search should receive an equal share of the rewards. There was no agreement upon which to base such a contention.

The rule of law applicable to the facts in the case is that “a reward may be apportioned equally among several claimants whose efforts contributed to produce the result for which the reward was offered. ’ ’ It seems to us that this is the only fair and gust rule to apply where the joint acts of several claimants who acted independently of each other resulted directly in the capture of the robbers. 23 R. C. L. 1133; 73 Am. Dec. 638; Roger v. McCoach, 66 Miss. Rep. 85, 120 N. Y. S. 686; Elkins v. Wyandotte County Commissioners, 92 Kan. 299. We think the acts of Henry Cotton contributed directly to the capture of the robbers. He met them face to face in the woods, and attempted to arrest them, single-handed. When they refused to yield, he fired upon them four times in quick succession, and hotly pursued them into the very hands of Downs and Brogdon. The prisoners themselves admit that they were attempting to avoid arrest by Henry Cotton when captured by Downs and Brogdon. It is quite apparent from the record that Downs and Brogdon would not have come in contact with the robbers had they not been driven into their hands by Henry Cotton. They changed their direction from north to west when he fired upon them.

He is therefore entitled to an equitable apportionment of the rewards, and the decree is reversed and remanded, with directions to apportion the amount of the rewards equally between Downs, Brogdon and Henry Cotton.


author: Hximpheeys, J.

text:
    Blackburn v. Brown.
    Opinion delivered April 27, 1925.
    1. ADVERSE possession — inclosure.—Acts of defendant and his grantor in constructing a fence of substantial nature around land which they used for cultivation and pasture, and in placing the same upon the tax hooks in their names, held acts of ownership evidencing adverse holding on their part.
    2. Adverse possession — continuity.—The continuity of defendant’s possession by means of a fence is not broken because a part of the fence across a slough is broken where defendant built a new fence around the slough with the consent of the adjacent owner.
    Appeal from Johnson Chancery'Court; W. E. Atkinson, Chancellor;
    affirmed.

      Jesse Reynolds, for appellant.

      Rays, Priddy <& Hays, for appellee.
   Hximpheeys, J.

Some thirteen years before the institution of this suit appellant became the owner by purchase of the fractional NW!4 of section 24, township 8 north, range 23 west, in Johnson County, Arkansas, abutting on what was formerly the north bank of the north channel of the Arkansas Diver, according to the government survey made in the year 1829. Opposite this land, and across the north channel of said river, there was a well-defined island, containing about 200 acres, which the government engineers surveyed and platted as a part of the government domain and which was described „in the patent from the United States to Styles P. Corlin in 1855 as being in sections 14, 23, and 24, in township 8 north, range 23 west, on the island. This island was bounded on the south by the south channel of said river. The north channel was about one-half mile wide, but, as time passed, it filled up and formed low bottom lands between the island and mainland, some of which became useful for purposes of pasturage, except during periods of high water, and the balance' susceptible to cultivation. S. M. Brown, the father of appellee, purchased the island in 1912, and took immediate possession thereof. Appellee purchased one-half of it from him in 1918 and the other in 1921, paying full value therefor. At the time of his purchase his father’s fence on the north and east included about fifty-five acres of the land adjacent to the island, which formed a part of the north channel of the river when the government survey was made. After ■his purchase of a part of the land in 1918, high water washed out parts of fifteen or twenty rods of the fence across a slough, and appellee got permission from appellant ’s tenant to run a new fence around the slough so as to include same in his pasture for stock water. This rendered it unnecessary to repair the fence running through the slough, so it remained standing in its place across the slough in its broken condition.

On the 28th day of June, 1922, appellant brought this suit against appellee in the chancery court of Said county, claiming that fifty-five acres of land in the possession of appellee was an accretion to the mainland, and, because of that fact, belonged to him, and praying that appellee be restrained from trespassing thereon.

Without making objection to the jurisdiction of the court, appellee filed an answer denying that the land inside his old fence, which formed a part of the north channel of said river at the time of the government survey, was an accretion to the mainland, but alleging that same was an accretion to the island; and, by way of further defense, pleading that he and his grantors had acquired title thereto by seven years’ adverse possession.

The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a decree quieting and establishing the title to the fifty-five acres of land in question in appel-lee, from which is this appeal.

We deem it unnecessary to determine whether the land in controversy was an accretion to the mainland or to the island, as it is revealed by a decided preponderance of the evidence that appellee and his father inclosed and held the land adversely for a period of more than seven years before the institution of this suit, claiming title thereto.

There is little or no dispute in the testimony that S. M. Brown, the father of appellee, inclosed the land in controversy with a substantial wire fence, and that thereafter he and appellee used a part thereof for purposes of cultivation and the remaining portion for purposes of pasturage; the real conflict in the testimony being whether the fence was built in the spring of 1915 or of 1917.

Appellant introduced eight witnesses who testified that the fence waf not built until the spring of 1917 or later, but twelve witnesses were introduced by appellee, who testified just as positively as the others that the fence was built in the spring of 1915. The witnesses on both sides based their several recollections as to when the fence was built upon incidents which had happened in the past and data at hand, indicating just when the fence was constructed. We have considered the testimony of all the witnesses in the light of these incidents and data in arriving at our conclusion. In doing this we attached considerable importance to the fact that the fence was built within a week or ten days after S. M. Brown had the lines on his land run by the county surveyor for the purpose of building the fence. Ezra Adkins was the county surveyor, and had been for many years. He testified by reference to his field-notes, which showed that he made the survey for S. M. Brown on the 1st and 2nd days of February, 1915. Y. B. Brown, who is the appellee, his two brothers, Favin and Clifford, and his mother, Mrs. S. M. Brown, testified that the fence was built in the spring of 1915, while V. R. Brown was attending Scarritt College at Morrisville, Missouri, during his senior year. His diploma shows that he graduated from the college-with the degree of Bachelor of Arts and Science on June 8, 1915. In arriving at our conclusion we also attached much importance to the fact that two of the witnesses who built the fence testified that it was finished some time in March, 1915.

Appellant suggests that the acts of ownership and occupancy exercised by appellee and his father over the land were not of sufficient notoriety to put him.upon notice that they were claiming the land as their own. The character of the acts consisted in constructing the fence out of cedar and mulberry posts and wire. The fence therefore was of a substantial nature. They used the land for purposes of cultivation and pasturage. They placed the land upon the taxbooks in 1919. These acts of ownership evidenced an adverse holding on their part. Carpenter v. Smith, 76 Ark. 447; McCombs v. Saxe, 92 Ark. 321.

Appellant also suggests that the continuity of possession was broken when the high water in the spring of 1918 washed out, at places, a few rods of the fence, which were not repaired. That part of the fence referred to ran across a small slough. It became unnecessary to repair this part of the fence in order to preserve the continuity of the possession, because appellant’s tenant permitted appellee to run a new fence around the north side of the slough so as to leave the whole slough within appellee’s pasture for stock water. No part of the land or slough north of the old line fence was claimed by appellee, and no part of that small strip of land was embraced in the decree quieting his title. Robinson v. Nordman, 75 Ark. 593. In the case cited the fence in question was repaired, but the necessity o,f making the repairs in the instant case was obviated by the construction of the new fence around the slough with the assent of appellant.

No error appearing, the decree is affirmed.