author: Hart, J.

text:
    Jacks v. Wooten.
    Opinion delivered March 20, 1922.
    1. Lost instruments — sufficiency of proof. — In a suit to establish title to land where plaintiffs.rely upon a deed alleged to have been lost, and are suing the person alleged to have executed the deed, the burden is on the plaintiff to prove the facts alleged upon which they rely for title by clear and satisfactory evidence.
    2. Lost instruments — evidence.—In determining whether a deed claimed to have been lost was executed, the court may consider how long the parties asserting the claim had been in possession of the land, its value, whether the land had been held adversely to such claim, and all the surrounding circumstances.
    Appeal from Pbillips Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    On the 5th day of November, 1917, S. A. Wooten and Cora F. Wooten brought suit in equity against Lula B. Jacks to establish title to an undivided three-eighths interest in a lot in the city of Helena, Ark., claimed by a deed alleged to have been lost and never recorded.
    The plaintiffs allege that the deed was executed to Cora F. Wooten by Lula B. Jacks in February, 1895, and that the plaintiffs have been in possession of said lot since that time; that said deed has been lost, and after a diligent search plaintiffs have been unable to find it.
    The prayer of the complaint is that Lula B. Jacks be required to execute a new deed to Cora F. Wooten, or that she be enjoined from asserting any title to the said lot, and that the title to he same be confirmed in S. A. Wooten, the present owner.
    Lula B. Jacks defended the suit on the ground that she had the legal title to said three-eighths interest of said lot and filed a cross-bill in which she asked for an accounting of the rents and profits from the plaintiffs.
    It appears from the record that Cora F. Wooten, Lula B. Jacks, and Z. D. Agee were partners under the firm name of Wooten, Jacks & Agee. The firm was organized in the early part of 1892, for the purpose of conducting a grocery and supply business. Cora F. Wooten and Lula B. Jacks each had a. three-eighths interest and Z. D. Agee had a one-fourth interest in the business. S. A. Wooten was the agent of his wife, and Tom Jacks was the agent of his wife in running the business. On the 11th day of May, 1892, E. C. Hornor executed a deed to Cora F. Wooten, Lula B. Jacks, and Z. D. Agee, Jr., to said lot. Cora F. Wooten and Lula B. Jacks each took an undivided three-eighths interest in the lot, and Z. D. Agee, Jr., took an undivided one-fourth interest therein. On the 10th day of June, 1892, they executed a mortgage to the People’s Building & Loan Association to secure the sum of $4,000 which they used in erecting a storehouse on said lot. Subsequently on the same day they executed a mortgage to E. C. Hornor, to secure him for the balance due on the purchase price. A store building was erected on the lot and rented out. The lot in question was situated in the same block in.which the parties conducted their grocery and supply business, but they continued to occupy the same house’and rented out the building which they erected after purchasing the lot from Hornor. The mortgage to the Building & Loan ’ Association was paid and marked satisfied in full on the record on the 14th day of February, 1899. The mortgage to Hornor was marked satisfied on the record on the 1st day of December, 1892.
    Lula B. Jacks sold her interest in the business to Cora F. Wooten in the early part of 1895 and retired from the firm. Cora F. Wooten and her husband remained in possession of- the lot and store building in question from that time until the present time. They have paid all the taxes and collected all the rents on the same. Thus far the facts are undisputed.
    According to the testimony of S. A. Wooten, he bought out the interest of Z. D. Agee in the business, including his interest in the house and lot in controversy, between fifteen and twenty years ago. After that time Agee left the country, and the plaintiffs, although having made a diligent search for him, have been unable to locate him and take his deposition. At the time Lula B. Jacks sold her interest in the business to Cora F. Wooten and retired from the firm, she executed a deed to her interest in said lot to Cora F. Wooten. At that time the courthouse, was situated out on the hill in Helena, and it was the custom of the firm to mail instruments which it wished to have recorded, to the clerk. S. A. Wooten thinks he mailed the deed from Lula B. Jacks and his wife to the clerk at the courthouse to be recorded. He has made a diligent search for the deed, and has been unable to find it. Subsequently Cora F. Wooten executed a deed to him to the house and lot. They paid $1,800 for the lot and the house cost $4,000. This was one of the first houses built on Cherry Street- At first the property rented for $35 per month. Then the rent was increased to $60 and finally to $150 per month. Wooten paid off the mortgage to the building & loan association at the rate of $53 per month. In 1895 a great many letters containing mail to the officers at the courthouse were opened and stolen by the janitor.
    C. C. Agee, a brother of Z. D. Agee, Jr., testified that he had not seen his brother in fifteen years; that neither he nor his mother knew where Z. D. Agee, Jr., was and had not heard from him in five years.
    According to the testimony of O. C. Rayburn, he went to Lula B. Jacks for the purpose of getting her to sign a nuitclaim deed to Cora F. Woooten to her interest in the lot in controversy. The reason was that S. A. Wooten had disposed of the property, and in making the abstract of title it had been discovered that the deed from Lula B. Jacks to Cora F. Wooten was lost and could not be found. Lula B. Jacks read over the deed and told Rayburn that if the deed was for him she would sign it, but inasmuch as it was to Wooten she had a good mind to make him pay her $1,000. .She finally increased this amount to $5,000 and then refused to sign the deed at all.
    According to the testimony of T. M. Jacks, the husband of Lula B. Jacks, his wife never conveyed the lots in controversy to Cora F. Wooten. He represented his wife when she sold her interest in the business, and the lot in controversy was not included in the sale. 8. A. Wooten had been managing the property since his wife had retired from the firm. The agreement was that Wooten was to take charge of the storehouse on the lot in question, pay the building & loan dues, taxes, insurance, and repairs -until the mortgage debt was paid, and that he should be allowed a reasonable compensation for his services; that he had approached Mr. Wooten some half a dozen times about the matter, and that Wooten’s answers were always indefinite; that he had not brought up the subject with Wooten for three or four years.
    On cross examination the witness stated that he and his wife were living in Helena in 1892, and they had lived there ever since, except for two years in 1902, 1903 or 1904. Jaeks asked Wooten about the cost of the improvements ten or fifteen years ago. He considered that his wife would have $8,000 or $10,000 interest in the property after all the mortgage indebtedness had been paid. The property has become very valuable.
    According to the testimony of Lula B. Jacks, her husband represented her in conducting the grocery and supply business and in selling out her interest in the same. She had instructed her husband to press her claim for settlement against S. A: Wooten before this suit had been brought. She denied that she made the statements to Rayburn testified to by him. In this respect she was corroborated by her daughter, who testified that she was present, and that her mother did not make the statements testified to by Rayburn.
    The chancellor found the issues in favor of the plaintiffs. It was decreed that the prayer of the plaintiffs’ petition be granted, and that the title to said lots be confirmed in the plaintiffs.
    It was further decreed that the defendant’s cross-complaint be dismissed, and that the defendant be enjoined from asserting any title to said lots.
    To reverse that decree the defendant has duly prosecuted an apeal to this court.

      B. J. Williams, for appellant.
    The original deed was to the parties as individuals and not as members of a partnership, and the property was not 'bought with partnership funds, therefore appellee did not become the owner thereof by reason of his purchase of appellant’s interest in the partnership.
    Parol testimony to establish the loss of a deed must be clear and satisfactory. No vague, uncertain recollection concerning its stipulation ought to supply the place of the written instrument itself. 13 Ark. 496. The same principle applies as in eases of reformation of a deed or written instrument, and the rule is clearly set forth in the following cases: 81 Ark. 420; 71 Ark. 614; 75 Ark. 72; 120 Ark. 320; 80 N. W. 91; 106 N. W. 505.
    Appellee cannot plead the statute of limitation, as under the married woman’s act of 1917, she was given one year after its passage to institute suit, which was done.
    Neither was she guilty of laches.

      John Z. Moore, Jacob Fink and John I. Moore Jr., for. appellee.
    Appellant is barred by laches from recovery. 114 Ark. 359; 55 Ark. 85; 7 How. 234; 1 How. 189.
    The findings of a chancellor will be sustained unless there is a clear preponderance of the evidence against such finding. 97 Ark. 537; 72 Id. 305; 75 Id. 52; 90 Id. 426; 75 Id. 72; 96 Id. 171; 101 Id. 522; 105 Id. 512; 143 Id. 319; 144 Id. 573; 544 Id. 50; 146 Id. 99; 145 Id. 247.
   Hart, J.

(after stating the facts). We are of the opinion that the decision of the chancellor is correct. The plaintiffs based their rights to recover oh the alleged fact that Lula 'B. Jacks executed to Cora F. Wooten a deed to her three-eighths interest in the lot in controversy and the deed had been lost before it had been filed for record. The chancellor granted the relief prayed for in the complaint of the plaintiff, and the title was confirmed in S. A. Wooten, who had in the meantime procured a deed to said lot from Cora F. Wooten. The defendant was enjoined from interfering with the title of the plaintiffs, and her cross-complaint in which she asked for an accounting for rents and profits was dismissed for want of equity. The rights of the plaintiff are based solely on the deed alleged to have been lost, and they are suing the person who, is alleged to have executed the deed. Under these circumstances it devolved upon plaintiffs to prove the facts alleged upon which they, relied for title by clear and satisfactory evidence. Kenady v. Gilkey, 81 Ark. 147.

In determining whether a deed claimed to have been lost was executed the court might consider how long the parties asserting the claim had been in possession of the land, its value, whether the land had been held adversely to such claim, and all the surrounding circumstances. Carpenter v. Jones, 76 Ark. 163.

Tested by this rule, we think the plaintiffs have established the fact of the execution and loss of the deed by clear and convincing evidence. It is true that the testimony of the parties themselves is in direct and irreconcilable conflict; but we think the testimony of the plaintiff, S. A. Wooten, is corroborated by the attending circumstances. The undisputed evidence shows that, after Lula B. Jacks sold her interest in the, firm to Cora F. Wooten, her husband, who had been managing her interest in the firm, took no further part in renting or collecting the rents on the house and lot in question. Wooten paid the building and loan dues and the taxes, which amounted to- more than the rent. The mortgage to the building and loan company was satisfied of record on the 2nd day of February, 1899. The mortgage to Homor was satisfied of record on December 1, 1892. ¡Since that time S. A. Wooten has continued to collect the rents and paid the taxes. He says that no claim was asserted by the defendant until she was requested to make a quitclaim deed in place of the lost deed.

It is true that this is denied by the defendant, but it is certain that the defendant took no active steps to have an accounting of the rents and profits. According to her evidence, the defendant and her husband have lived in the city of Helena within five or six blocks of the house and lot in controversy during all this time, except for a period of two years. The rental value of the property increased from $35 to $60 and then $75 per month. Finally the rent went up to $150 per month. According to the testimony of the husband of the defendant, they knew that the value of the property had greatly increased, and they must have known that its rental value had also" greatly increased. Their silence in permitting the plaintiffs during all these years to collect the rents and manage the property as their own is a strong circumstance tending to show that the defendant had parted with her interest in the property. It is not as if she had been living at another place and kept in ignorance of its rental value. She knew what the property and the house on it had cost. She must have known that the mortgage indebtedness had been paid years ago. Her failure to assert any claim until she was asked to make a quitclaim deed to clear the title after Wooten had bargained to sell the lot can be explained only on the theory that she had parted with her title to the property.

It was shown by the plaintiffs that a great deal of mail was opened by the janitor and destroyed during the period of time that the deed would have been sent to the courthouse to be recorded. This accounts for the loss of the deed, and it is not unreasonable that the plaintiffs failed to know that the deed had not been returned to them after they had mailed it to the clerk’s office to be recorded.

It follows that the decree will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Phillips v. Phillips.
    Opinion delivered March 20, 1922.
    Executors and administrators — relief against probate allowances. —Where an executor procured improper allowances in the probate court aganist the estate without fraud, and these allowances were acquiesced in by all parties under a mistaken construction of the will, no appeals being prosecuted, equity has no jurisdiction to relieve against such allowances.
    Appeal from Pulaski Chancery Court, John E. Murtinecm, Judge;
    reversed in part.

      Price Shoffner, for appellants.
    The court erred in restating the accounts of William James Phillips and in disallowing the amounts paid by him to James Phillips under the will.
    The allowance of a claim1 by the probate court has the force and effect of a judgment. 5 Ark.. 468; 48 Ark. 277; 38 Ark. 471; 35 Ark. 205. It is binding upon all parties and can only be set aside for fraud. 90 Ark. 261; 73 Ark. 440; 86 Ark. 368; 50 Ark. 217; 40 Ark. 393; 102 Ark. 114.
    The court erred in holding that there was such a mistake as should be relieved against in equity.- 16 Cyc. 66; 27 Cyc. 809; 16 Cyc..73; 16 Cyc. p. 68, notes 11 and 12.
    The court erred in holding that the allowances made to the executor by the probate court should not be enforced against the residuary property.

      Louis Photon, for appellees.
   Smith, J.

Mrs. Sarah M. Phillips died testate, and we had occasion to construe her will in the case of Phillips v. Phillips, reported in 143 Ark. p. 240. The will of Mrs. Phillips provided that William James Phillips, her son and executor, should pay her husband the sum of $50 per month, and in the case of Phillips v. Phillips, supra, we held that it was the intention of the testatrix that this sum should be paid by her son and executor out of the property devised him, and not out of the corpus of the estate.

Soon thereafter three of the children of the testatrix who were devisees under the will brought a suit in the chancery court in which they attacked the settlements made by the executor, on the ground that credits had been allowed the executor as a result of a mutual mistake of all parties in the construction of the will.

These payments of $50 per month had continued for about six years and aggregated approximately $3,000, and had been reported in each of the annual settlements of the executor, and these settlements had in due course been each regularly approved by the probate court. This suit sought to set aside these probated claims, together with the following claims: $199 for the funeral expenses, and certain items of expense incurred in the course of administration. It was also alleged that the testatrix had left a certain lot which was incumbered with a mortgage to the W. B.. Worthen Company for $400, which the executor had not paid off but had suffered to be sold under a decree of foreclosure. It was alleged that the executor should not have suffered this property to sell, but should have paid off this incumbrance with property devised to him personally under the will. It was further alleged that on or about May 20, 1920, the executor had obtained an order of the probate court for- the sale of the lands of the testatrix to pay the probated demands, and that, as the time for an appeal from the probate orders had expired, the executor was about to proceed to.carry out the order of the probate court permitting him to sell said property and would do so unless restrained from so doing. There was a prayer that all claims which had been allowed the executor, as a result of the mutual mistake of the parties, by the probate court be disallowed, and that the order of sale made by the probate court be sc modified that the property should be sold to pay only the amounts to which the executor was legally and equitably entitled.

The executor answered and alleged that he had interpreted the will as directing him to pay the $50 per month to his father out of the assets of the estate other than the property devised and bequeathed to himself. That, acting upon this belief, he had made these payments regularly, and had reported them annually in his settlements. with the probate court. That all parties in interest acquiesced in this construction of the will and knew that the executor was charging the estate with these payments so being made, and that this acquiescence continued until he had so paid to their father, James Phillips, a sum largely in excess of the value of the property devised to him individually. It was further alleged in the answer that the plaintiffs in this suit had full knowledge of these payments to their father, and that credit therefor was being allowed in the probate court, and that these orders of allowance were obtained without any fraud being practiced upon, or misrepresentations made to, the court, and that plaintiffs had, by their laches, estopped themselves to question the probate court judgments, and that they were also barred by lapse of time allowed 'by law for prosecuting appeals from these judgments

There appears to be no substantial conflict in the testimony, and the final decree rendered in the court below, restrained the executor from asking or receiving any order of the probate court to sell the residuary property of the estate for any amount which included the payments made by the executor to James Phillips. It was further decreed that all other allowances which had been made by the probate court “be made a charge upon what is known as the residuary property, and that the prayer of the plaintiffs that the defendant, William James Phillips, ibe enjoined from asking an order from the probate court to sell said residuary property to satisfy his claims for said amounts be denied.” All parties have appealed.

As has been said, there is no substantial conflict in the testimony, and the litigation arises out of the different interpretations given our opinion in the case of Phillips v. Phillips, supra. It is the insistence of appellees that we held the claim for monthly advances to James Phillips were not chargeable to the corpus of the estate, and that the reason for so holding is equally applicable to the charges for which the executor was allowed credit, and that the settlements including these items should be corrected to disallow them.

Counsel mistake the effect of our holding. We did not undertake to review the judgments of the probate court made in the course, of the administration of this estate. Upon the contrary, we said that, “there is no allegation in any of the pleadings of fraud in the settlement of his accounts, and no proof thereof. There is nothing, therefore, in this record, so far as the accounting is concerned, to justify the court of chancery in lifting the administration of the estate of Sarah M. Phillips out of the jurisdiction of the probate court.” We there further said: “The chancery court, therefore,, should have refused to entertain any jurisdiction over the executor, William James Phillips, so far as the matter of accounting and settlement with the probate court is concerned, and it should have refrained from rendering any decree for or against him and from giving directions as to how he should proceed in the future management of the estate. These were matters exclusively within the jurisdiction of the probate court. (Cases cited). The above authorities show that under the pleadings and proof in this record the only question which the court could or should have considered was the construction of the will of Sarah M. Phillips to determine the scope of the trust created by it and the duties of the trustee in administering the trust. That is as far as this court can go.”

The theory upon which we held chancery had jurisdiction was that the will was ambiguous and required construction. We then proceeded to construe the will, and, in doing so, held that the intention of the testatrix was that her executor' should pay the monthly stipend to James Phillips out of the estate devised him personally; but we did not intend thereby to vacate and set aside the judgments of the probate court. To have done so would have been to have assumed appellate jurisdiction over the probate court, and after the time for an appeal had expired.

It does appear that the opinion we now express renders valueless to the residuary legatees the opinion in their favor in the former appeal, that the executor should charge himself personally with the advances to their father. But appellees have only themselves to blame for their delay. It affirmatively appears that this administration was pending in the probate court for six or seven years, and settlements by the executor were regularly made, and, in the due course of procedure, were approved. All parties in interest knew the executor was charging the estate, and not himself, with the monthly advances to James Phillips. No fraud was practiced upon the court in procuring the approval of these settlements; but they were acquiesced in by ali parties because of the mistaken construction of the will which all parties had placed upon it. The executor makes the showing that he advanced to James Phillips a sum of money largely in excess of the value of the property devised him, and he states the fact to be that he would not have accepted the devise to himself if any insistence had been made that this devise was subject to the charge of paying James Phillips the $50 per. month directed by the will.

These orders of the probate court approving the executor’s settlements have the force and effect of judgments, and appeals therefrom should have been taken within the time allowed by law, and the failure so to do cannot be excused by the showing now made that all parties had mutually misconstrued the will. Brown v. Hanauer, 48 Ark. 277; Fort v. Bragg, 38 Ark. 471; Carter v. Engles, 35 Ark. 205; Davis v. Rhea, 90 Ark. 261; J ames v. Gibson, 73 Ark. 440; Brown v. Nelms, 86 Ark. 368; Jacoway v. Dyer, 50 Ark. 217; Trimble v. James, 40 Ark. 393; Hoshall v. Brown, 102 Ark. 114.

The court, below should not, therefore, have enjoined the probate court from ordering the sale of the residuary property for any amount which includes the advances to James Phillips, and that part of the'decree will be reversed.

The refusal of the chancery court to enjoin the sale of the residuary property in satisfaction of the other probated demands is affirmed.


text:
    Minnie v. Rose.
    Opinion delivered March 20, 1922.
    1. Public lands — conclusiveness op surveys. — Official surveys made by the United States are not open to collateral attack in an action at law between private parties.
    2. Boundaries — meandered lines. — Where, in a survey of the public domain, a body of water or lake is found to exist and is meandered, the result of such meander is to exclude the area from the survey; and where there exists a difference between the meandered line and the existing' line of the watercourse, the latter and not the former is to be considered the true boundary.
    3. Courts — federal questions. — In questions involving the public survey, the decisions of the Supreme Court of the United States are binding upon all other courts.
    Appeal from Cross Circuit Court, R. H. Dudley, Judge;
    reversed.

      G. 8: Dearing, Killough-, Limes & Killough, for appellant.
    Lands beyond the meander line along- navigable streams are included with the adjoining lands when conveyed. Tiffanv, Real Prop. vol. 2 p. 3649; 4 R. C. L., p. 97; 5 Cyc. p. 899; 19 L. Ed. 78; 42 L. R. A. 502, note; 65 N. W. 344.

      There are three reasons for a meander. First, to define the sinuosities of the stream; second, to approximate the acreage of the land; third, to reserve for riparian and public uses the shore line of the body of water. 62 L. Ed. 128; 140 TJ. S. 371; 35 L. Ed. 428; 190 TJ. S. 452; 47 L. Ed. 1134; 190 TJ. S. 508, 47 L. Ed. 1156.
    It is presumed that the meander line coincides with the water so as not to leave a strip between the boundary and the water. 23 L. Ed. 62 note; 42 L. R. A. 502.
    Patents are construed according to the local law of the State. 190 TJ. S. 519; 140 TJ. S. 371; 152 TJ. S. 1; 159 TJ. S. 89; 201 TJ. S. 332; 140 TJ. S. 406.
    By the common law, which obtains in this State, a grant of land abutting on a navigable stream carries title to the high-water mark. 119 Ark. 377; 190 TJ. S. 459; 53 Ark. 314.
    If the surveys were fraudulent, they could only be impeached by the Government. 128 TJ. S. 691; 158 TJ. S. 258; 197 TJ. S. 510; 23 Tex. 234; 12 Johns 82, 7 Am. Dec. 280; 96 la. 414; 42 N. W. 299; 54 Minn. 290; 2 Farnham, Waters, § 422.

      John W. Browner and J. F. Gautney, for appellee.
    Where the grant of land bordering upon a stream is a narrow strip lying between the meander line as surveyed and the natural stream, but much smaller in proportion than the land granted, the grant will be construed as covering the land between the meander line and the bank of the stream, but where the land between the meander line and the bank is so grossly in excess of that sold that it is apparent that there is a fraud and mistake in the survey, the meander line will not be the border. Farnham on Waters and Water Rights, vol. 2, pp. 1464-5, §418.
    From the character of the timber, the lay of the land, and other things it is apparent that this 28 acres was never surveyed, and this amount of land as compared to the amount granted, 43.10, is so excessive that it can not be said that the grantee from the State took to the bank of the river, under his patent, this land being in existence at the time of the survey.
    While appellee claims no title to the land, neither can appellant, and appellant has no right to recover upon the strength of his patent. 40 L. Ed. (U. S.) 68; 44 L. Ed. (U. S.) 171; 48 L. Ed. (U. S.) 662.
    Where the surveyor omits to include large tracts of land between the meander line and the stream, the grant will extend only to the meander line and not the stream.
   Smith, J.

Appellants instituted a suit in ejectment against appellee to recover a certain twenty-eight acre tract of land, which is described as a part of the left bank of the St. Francis River, a navigable stream, section 5, township 7 north, range 5 east, Cross County, Arkansas, a part of which is alleged to be accretion and the remainder land which lies between the meander line and the shore line of the left bank of the St. Francis River. The land lies around a long 'bend of the river, it being about two miles around the bend and only about one-half mile across. Title was deraigned as follows:

Patent from the United States to the State of Arkansas, conveying the whole fractional section 5 on both sides of the St. Francis River in township 7 north, range 5 east.

Patent by State of Arkansas to the heirs and legal representatives of Thomas J. Hill, issued upon a certificate of entry to Thomas J. Hill, conveying “fractional south half of section 5, on left bank of river, in township 7 north, range 5 east,” containing 43.10 acres.

These patents are followed by mesne conveyances to the various intermediate vendors of the appellants.

There was a verdict and judgment for the defendant, from which is this appeal.

The evidence tended to show and, in view of the instructions of the court, we assume the jury found that the twenty-eight acres sued for were in addition to the 43.10 acres described in the patent, that is, that there was a tract of land lying between the meander lines of the south half of section 5 and the banks of the St. Francis River which, with the accretions thereto, amounted to 28 acres.

Appellee presented no claim of title, but alleged, and proved, possession in himself, but for a time insufficient to have given him title by'adverse possession, and claimed that the land belonged to the United States, and not to the appellants, whose suit must therefore- necessarily fail, as appellants could recover only on the strength of their own title.

The instructions submitted the case to the jury upon the theory that, if there was any land at the time of the Government survey beyond the meander line, neither that land, nor the accretion thereto, would belong to appellants, but belonged to the United States; whereas appellants requested instructions to the effect that, if the jury found that it was intended, in the various conveyances offered in evidence, including the patents, the bank of the river, and not the meander line, should be the boundary of the tract, and that the title to the other part of the lands was in the plaintiffs, the jury should find for the plaintiffs for the lands located between the meander line and the river bank. Which theory is correct?

The question stated is an interesting one, and has several times been passéd upon by the Supreme Court of the United States, as well as by the courts of last resort of a number of the States. One of the earliest cases, and one usuallv cited, is that of St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272. Other decisions of the United States Supreme Court frequently cited are: Hardin v. Jordan, 140 U. S. 384; Cragin v. Powell, 128 U. S. 691; Jefferis v. East Omaha Land Co., 134 U. S. 194; Security Land & Exploration Co. v. Burns, 193 U. S. 167; Kean v. Calumet Canal, 190 U. S. 452; Hardin v. Shedd, 190 U. S. 508. The annotated cases of Hanlon v. Hobson, 42 L. R. A. 502, and Stoner v. Rice, 6 L. R. A. 387, collect many cases on the subject. See also numerous cases cited in 9 C. J. 189 and in the note to the section on Meandered Lines as Boundaries (§ 29) of the article on Boundaries in 4 R. C. L. 97.

This court, in the case of Little v. Williams, 88 Ark. 37, held that the official surveys made by the United States Government are not open to collateral attack in an action at law between private parties. This case was affirmed on appeal to the Supreme Court of the United States. 231 U. S. 335.

It follows therefore that the survey of the land in question is prima facie correct; and, this being true, what rights have been acquired under the patents from the United States and the State of Arkansas?

This being a question involving the public survey the decisions of the Supreme Court of the United States are, of course, binding on all other courts, and the last decision of that court to which our attention has been called is the case of Lee Wilson Co. v. United States, 245 U. S. 24. The statement of points and authorities of counsel found in the headnotes of this case, as reported in 62 L. Ed. U. S. Rep. 128, collect a very great many cases on the subject. In an opinion by Chief Justice White it was said:

“It thus becomes apparent that the subject of the controversy relates solely to the unsurveyed area resulting from the erroneous assumption as to the existence of a lake, and embraces only 853.60 acres. It also is certain that, as the result of the concurrent findings of fact by the two courts and the admission made by the parties, there is no controversy as to the facts concerning the error committed as to the supposed lake, leaving therefore to be decided only the legal questions which arise from the admitted facts. As a means of putting out of view questions which are not debatable we at once state two legal propositions which are indisputable because conclusively settled by previous decisions.
“First, where, in a survey of the public domain, a body of water or lake is found to exist and is meandered, the result of such meander is to exclude the area from the survey and to cause it, as thus separated, to become subject to the riparian rights of the respective owners abutting on the meander line in accordance with the laws of the several States. Hardin v. Jordan, 140 U. S. 371, 35 L. Ed. 428, 11 Sup. Ct. Rep. 808, 838; Kean v. Calumet Canal & Improv. Co., 190 U. S. 452, 459, 47 L. Ed. 1134, 1137, 23 Sup. Ct. Rep. 651; Hardin v. Shedd, 190 U. S. 508, 519, 47 L. Ed. 1156, 1157, 23 Sup. Ct. Rep. 685.
“Second. But where, upon the assumption of the existence of a 'body of water or lake, a meander line is, through fraud or error, mistakenly run because there is no such body of water, riparian rights do not attach, because, in the nature of things, the condition upon which they depend does not exist; and upon the discovery of the mistake it is within the power of the land department of the United States to deal with the area which was excluded from the survey, to cause it to fee surveyed, and to lawfully dispose of it. Niles v. Cedar Point Club, 175 U. S. 300, 44 L. Ed. 171, 20 Sup. Ct. Rep. 124; French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 46 L. Ed. 800, 22 Sup. Ct. Rep. 563; Security Land & Exploration Co. v. Burns, 193 U. S. 167, 48 L. Ed. 662, 24 Sup. Ct. Rep. 425; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U. S. 186, 58 L. Ed. 564, 34 Sup. Ct. Rep. 297.”

We have here no question about the existence of the river and its proximity to the land in question, and the land department of the United States has not — at least so far as this record shows — called into question the survey of this land.

In Warvelle on Abstracts, 4th Ed., § 165, it is said: “Meander lines are run, in- surveying fractional portions of the public lands bordering on navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the bank of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for fey the purchaser. Fractional divisions, made so by the interference of water, are designated and sold by the numbers attached to the lots, and reference is always had to the notes of survey. The water indicated in these notes is always the boundary; and where there exists a difference between the meandered line as run and the existing line of the water-course, the latter and not the former is to be considered the true boundary.”

There is a note to the case of Security Land & Exploration Co. v. Burns, supra, as the same is found reported in 48 L. Ed. U. S. Rep. page 662, to the following effect: “If the Federal Government, in meandering its land, meanders a stream or other body of water, and grants the land according to the survey, the water, and not the meander line, will, in general, be the boundary.” A number of cases are cited in the note which support it.

We conclude therefore that the court erred in the theory upon which the ease was submitted to the jury, and, under the undisputed testimony in the case, appellants are entitled to have the cause reversed and remanded, with directions to enter a judgment in their favor for the possession of the land sued for, and the quesiion of rents may be submitted to a jury, if appellant so elects.

Judgment reversed and cause remanded.


author: Humphreys, J.

text:
    Jordan v. Wilkerson & Carroll Cotton Company.
    Opinion delivered March 20, 1922.
    1. Mortgages — after-acquired title. — An after-acquired title of a mortgagor creates an equitable lien or charge upon the property in favor of his mortgage, and such lien cannot be enforced by replevin, but must be enforced by foreclosure proceedings in equity.
    2. Trial — wrong forum — waiver of objection. — Where no objection was taken in an action at law which should have been brought in equity, it was not error for the law court to proceed with the cause, but equity principles should be applied in the adjudication of the issue involved.
    3. Sale — reservation of title — PRiORiTY.^Where the owner of mules sold them, reserving- title until paid for, and -subsequently took a mortgage to secure the purchase money without knowledge of an intervening mortgage, the seller is entitled to have his reservation of title enforced.
    Appeal from -Cross Circuit Court, R. H. Dudley, Judge;
    reversed.

      8. W. Ogcm, for appellant.
    The fact that Jordan had possession of the mules at the time he mortgaged them to appellee was not conclus'ive evidence of ownership, and of the right to dispose of them. 47 Ark. 364; Forresl v. Benson, 150 Ark. 89.

      Mann & Mann, for appellee.
    The act of the Lansing Company obtaining the legal title to the mules canceled the lien of the Jackson mortgage. 11 Corpus Juris, 685.
    Where the mortgagee authorizes the mortgagor to sell chattels, the mortgage lien thereon is discharged. 9.4 Ark. 165.
    The validity of a chattel mortgage upon after-acquired property or property not then en esse has been expressly upheld by this court. 52 Ark. 439 ; 80 Ark. 431; 72 Ark. 390.
    By accepting the mortgage from Jordan, the Lansing Company acknowledged that the legal title to the mules was in Jordan. .97 Ark. 432; 129 Iowa 200; 105 N. W. 424 ; 52 Kan. 358; 35 Pac. 12; 146 Ala. 682; 40 So. 218; 150 Ala. 165; 43 So. 709; 6 Mont. 288; 12 Pac. 652; 85 Wis.,359; 55 N. W. 711.
    The failure of the Lansing Company to record its mortgage was fatal. 54 Ark. 273; 49 Ark. 457; 71 Ark. 505.
    As between conflicting mortgages the one first filed for record has priority. 33 Ark. 387. -
   Humphreys, J.

This is a suit in replevin, instituted by appellee against appellants in the iCross 'Circuit Court to recover possession of two mules. The cause was submitted to the court, sitting as a jury, upon the pleadings and an agreed statement of facts, which resulted in a judgment awárding possession of the mules to appellee, from which is this appeal. The statement of facts is as follows (omitting formal parts):

“It is agreed that on the 23rd day of December, 1919, the Lansing Company sold to Prince Jackson two mules for the sum of $340. Jackson gave his notes for this sum, due on March 1, and November 1,1919, and to secure the payment of the same, he executed to said Lansing Company a chattel mortgage upon the mules so purchased, a copy of which mortgage and notes is attached hereto. This mortgage was filed in the office of the recorder for Cross County on January 15, 1920, and recorded in Book R at page 261. No part of the purchase price was ever paid by Prince Jackson, and the mortgage was not released of record. On the 16th of March, 1920, George W. Jordan, having obtained possession of said mules from Prince Jackson without knowledge of the Lansing Company, represented to plaintiff, Wilkerson & Carroll Cotton On., that he was the owner of said mules, and mortgaged the same to the plaintiff for the sum of $330, extending* a note for that amount, and a chattel mortgage upon the two head of mules, which said mortgage was filed in the office of the recorder of Cross County on the 18th day of March, 1920, and recorded in Book R, page 424. Nothing has been paid upon this indebtedness, and the mortgage has not been released of record. Copies of the note and mortgage are attached hereto. On the 26th day of March, 1920, Prince Jackson returned the mules to the Lansing Oomnanv, who on the same day sold the mules to Geo. W. Jordan for the sum of $340, the said Geo. W. Jordan executing a note for said amount to the Lansing Company, which note recites the title to said mules is retained in the Lansing Company; and also executed a chattel mortgage upon said mules to secure the same. This mortgage was filed for record in the office of the recorder for Cross County on the 31st day of March, 1920, and was duly recorded in record book R, page 544. This note has not been paid, and the mortgage has not been released of record. Copies of note and mortgage are attached hereto. It is further agreed that the Lansing Company is located at Parkin, Arkansas, fourteen miles from Wynne, Arkansas, the county seat of Cross County, and on a direct railroad line, and that mail placed in the postoffice at Parkin should reach Wynne within twenty-four hours. It is also agreed that the mules which are the subject of this litigation are now in the possession of the Lansing Company, and were at the beginning of this suit, and that they are of the total value of $150.”

Under the agreed statement of facts, it is apparent that appellee based its right to recover the possession of the mules upon an after-acquired title of its mortgagor, .George W. Jordan. George W. Jordan mortgaged the mules to it on the 16th day of March, 1920, and did not acquire the title to them until six days thereafter, at which time he purchased them from the Lansing Company, appellant herein. The Lansing Company took a note from Jordan for the purchase money and retained the title in itself to them, and also took a mortgage on them to secure the purchase money, but did not record the mortgage until five days thereafter. There is nothing in the agreed statement of facts to indicate that appellant had actual knowledge of appellee’s mortgage at the time it took the mortgage from George W. Jordan to secure the purchase money of the mules. So it must be presumed that it had constructive notice only of the existence of appellee’s mortgage. Appellee acquired an equitable, and not the legal, title to the mules under its mortgage, as its grantor acquired the title to them subsequent, to the execution of the mortgage. An after-acquired title of a mortgagor creates an equitable lien or charge upon the property in favor of his mortgagee, and such a lien cannot be enforced by replevin in a court of law, but must be enforced by foreclosure proceedings in a court of equity. Apperson Co. v. Moore, 30 Ark. 56; Jarratt v. McDaniel, 32 Ark. 598. No objection, however, was made to the jurisdiction of the court to proceed with the cause, and no error was committed in doing so. But equity principles should have been applied in the adjudication of the issue involved. In other words, the superior lien in equity, as between the mortgagees, appellant and appellee, should have been declared the paramount and prevailing lien. The fact is, appellant was the owner of the mules and sold them to appellee’s mortgagor, George W. Jordan, retaining the title until the purchase money should be paid. Immediately thereafter, and in ignorance that Jordan had executed a mortgage on the mules to appellee, appellant also took a mortgage to secure the purchase money, which it neglected to record for five days. The consideration of the mortgage from Jackson to appellee was paid before, and not after, the sale of the mules to Jackson by appellant. Appellee was not misled to its disadvantage by the transaction between appellant and Jackson. It is manifest that appellant would not have accepted a mortgage in lieu of the retention of its title in the mules if it had actually known that its vendee had theretofore executed a mortgage on them to appellee. Under these circumstances appellant, in good conscience and equity, should have been restored to its rights under the note and contract in which it retained title to the mules. This equitable principle was applied by this court in the restoration of a senior mortgagee’s prior lien where the senior mortgagee, through ignorance of an intervening mortgage to a third party, had taken a renewal mortgage and satisfied the first or original mortgage of record. Wooster v. Calender, 54 Ark. 153. The same doctrine was reannounced in the later case of Shurn v. Wilkinson, 131 Ark. 167.

For the error indicated the judgment is reversed, and the cause dismissed.


author: McCulloch, C. J.

text:
    Cleveland v. Maddox.
    Opinion delivered March 27, 1922.
    L Witnesses — privileged communications. — The statute declaring physicians and trained nurses to be privileged from disclosing information acquired in a professional character (Crawford & Moses’ Dig., § 4149) has no application to testimony of a nurse as to a conference between defendant and plaintiff, who was a physician, as to an agreement to pay for a surgical operation.
    2. Frauds — statute op — original or collateral undertaking.— Where plaintiff testified that- defendant employed him to perform a surgical operation on his adult .son, and told plaintiff that he would pay the bill, it was error to direct a verdict for defendant; the evidence being sufficient to sustain' a finding that defendant’s undertaking was an original one.
    Appeal frpm White Circuit Court, J. M. Jackson, Judge;
    reversed.

      Gulbert L. Pearce, for appellant.
    The court erred in directing a verdict for the defendant.
    On appeal from a directed verdict, this court will view the evidence in the light most favorable to the opposite party. 94 Ark. 530; 73 Ark. 561; 76 Ark. 520; 105 Ark. 136; 120 Ark. 206.
    The suit is based on an original undertaking. The statute of frauds has no application. 76 Ark. 1; 102 Ark. 407; 40 Ark. 429; 76 Airk. 292; 93 Ark. 277; 15 L. R. A. (N. S.) 214; 36 Ala. 596; 113 Am. St. Rep. 73; 5 Idaho 314; 41 111. 213.
    In ascertaining to whom credit was extended, the intention of the parties must govern. 141 U. S. 479, and if the language of the contract is amjbi guous, the intention should be determined by the jury. 37 Ala. 577; 77 G-a. 542; 11 Ind. 414; 128 Mass. 165.
    If the object of the promissor was to subserve his own purpose, the promise will be treated as original. 6 Mo. App. 370; 35 IT. S. L. Ed. 826; 9 Ann. Cas. 895.
   McCulloch, C. J.

Appellant is a practicing physician and surgeon and instituted this action against appellee to recover on an account for professional services rendered to appellee. A portion of the account is undisputed, but there is an item of $180 for appellant’s services in a surgical operation on appellee’s son, and on the trial of the case before a jury the court directed a verdict against appellant on this item of the account. No testimony was adduced by appellee, and the peremptory instruction was based upon the claim that appellant’s own testimony failed to make out a case not within the statute of frauds.

Concerning the disputed item, appellant testified that appellee’s son was ill, and that a surgical operation became necessary, and that appellee agreed to pay the fee for the operation and other expenses thereof. He testified that the arrangements for the performance of the operation were made entirely by appellee and not by his son.

The testimony shows that appellee’s son was a grown man with a-family.

Appellant’s statement on this subject, among others, was as follows:

“In the first place, Jack Maddox, the patient, never consulted me at all about it. Mr. Maddox did all the consulting, made all the arrangements and guaranteed to pay it; that is, he said he would pay the bill.”

In another part of his testimony he stated that appellee said: “Do what you think best for the boy, and I will pay the bill.” He testified that, after the operation was over and proved to be successful, appellee promised to borrow the money and pay the bill, but later stated that his wife refused to sign the mortgage; that subsequently he denied liability on the bill.

Appellant also offered to prove by a nurse who attended young Maddox at the time of the operation that she was present at the time of the conference betwéen appellant and appellee, and that the latter agreed to pay all the charges for the operation on his son. This testimony was excluded b}r the court from consideration of the jury. The court erred in excluding this testimony, and likewise erred in giving the peremptory instruction to the jury.

The statute declaring physicians and trained nurses to be privileged from compulsion as witnesses concerning certain kinds of testimony has no application. Crawford & Moses’ Digest, § 4149.

The evidence was sufficient to show an original undertaking on the part of appellee to pay the bill for surgical services rendered to appellee’s son. Appellant stated the agreement in different language, and it was a question for the jury to draw the inference from the language used as to whether the contract, if there was one entered into between the parties, was an original undertaking or a collateral one within the statute of frauds. Millsaps v. Nixon, 102 Ark. 435; Grady v. Dierks Lbr. & Coal Co., 149 Ark. 306; Saul v. Bass, post 584.

There being sufficient evidence to warrant a finding that there was an agreement on appellee’s part in regard to appellant’s bill for services and that it constituted an original undertaking, the issue should have been submitted to the jury under appropriate instructions.

The judgment is therefore reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Brown & Hackney, Inc., v. Loveless.
    Opinion delivered March 13, 1922.
    1 Sales — necessity of delivery. — The remedy of one who contracts to buy chattels which were never delivered is an action for breach of contract, and- not replevin.
    2. Replevin — requisites.—Replevin cannot be maintained without showing a general or special ownership of the property in the plaintiff, together with the right of immediate possession.
    3. Sales — necessity of delivery. — A delivery, either actual or constructive, is essential to the consummation of a s-ale of chattels, title not passing until delivery.

      4. Sales — question for jury. — In an action involving the title to chattels, whether there had been delivery under a contract of sale held under the evidence to be a question for the jury.
    5. Appeal and error — -harmless error. — Refusal of a continuance to an intervener after plaintiff -had been permitted to amend his complaint so as to ask damages against such intervener was harmless where no judgment for damages was rendered against the intervener.
    6. Continuance — requisites of motion. — A motion for continuance on the ground of surprise by an amended pleading should show wherein the movant was surprised by such amendment.
    Appeal from White Circuit Court, J. M. Jackson, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This was an action in replevin by W. J. Loveless and A. C. McGregor, doing business under the .firm name of W. J. Loveless Veneer Company, against J. B. Bridge-man, to recover 30,000 feet of gum and cypress logs. The defendant denied ownership of the logs in the plaintiffs, and averred ownership in himself.
    Brown & Hackney, Inc., filed an interplea in which it claimed that it had title to the 30,000 feet of gum and cypress logs in question, and was entitled to the possession thereof.
    After all the parties had announced ready for trial, the plaintiffs, through their attorneys, obtained leave of the court to file a cross-complaint against Brown & Hackney, Inc., for $400.
    According to the testimony of W. J. Loveless, he lived at Cotton Plant, Ark., and he and Asa McGregor ran a veneer mill in the name of Loveless Veneer Company. The Loveless Veneer Company bought the timber on 80 acres of land in White 'County, Ark., and paid $600 for it. The firm employed the defendant, Bridgeman, to cut the timber for it under1 a verbal contract to give him $16 per thousand for cutting, hauling and loading the timber on the cars at Worden’s spur. The plaintiffs did not sell, or authorize anv one else to sell, the timber to Bridgeman. The plaintiffs advanced Bridgeman $825 to pay for labor in getting out tbe logs. Bridgeman shipped about 30,00.0 feet of logs to Brown & Haokney, Inc., and paid the plaintiffs $1,000 of the purchase price he received for the logs from Brown & Hackney, Inc. The plaintiffs did not know anything* about the sale, and did not authorize Bridgeman to make the sale. After the replevin suit was instituted against Bridgeman by the plaintiffs, the latter took possession of the logs at "Worden’s spur.
    According to the testimony of J. B. Bridgeman, he first learned of a tract of timber being for sale, and asked W. J. Loveless to furnish him the money with which to buy it. Loveless sent an agent to look over the timber, and, after the agent reported to him his estimate of the amount of timber, Loveless told Bridgeman that he would furnish the money with which to buy the timber, provided the deed was made to the Loveless Veneer Company, and that they would pay Bridgeman $40 per thousand for the logs loaded on the cars until they got their money back. After Bridgeman had cut some of the timber, an agent of the plaintiffs came up and examined the logs. He told Bridgeman that the logs were not good veneer logs, and authorized him to sell the logs to- some one else. There were something over 20,000 feet of logs cut at that time. Bridgeman, by a verbal contract, sold to Brown & Hackney, Inc., 52,000 feet of logs off of the 80 acres of land in question for $40 per thousand. He delivered to Brown & Hackney, Inc., about 30,000 feet of logs and received pay for them. He -then paid the plaintiffs $1,000. This left about 23,000 feet of logs at the spur, and this amount of logs was taken possession of by the plaintiffs in- the replevin suit before Bridg*eman delivered them to Brown & Hackney, Inc. Bridgeman told Loveless, when he sent him the $1,000, that as soon as he could load out the logs he would send him the balance of the money. Loveless accepted the check for the $1,000 and said that that was all right. Loveless gave Bridgeman permission to sell the logs to Brown & Hackney, Inc.

      The evidence shows that the logs have become rotten and are worthless now. They were seized • by the plaintiffs under their writ of replevin.
    The jury returned a verdict as follows: “We the jury find for the plaintiffs for the possession of the logs in controversy, and the interveners are not liable for damages asked for by the plaintiffs.”
    Judgment was accordingly entered in favor of the plaintiffs against the defendant, Bridgeman, for the possession of 30,000 feet of gum and cypress logs.
    It was further ordered by the court that the cause be dismissed as to Brown & Hackney, Inc. Brown & Haokney, Inc., alone has appealed to this court.

      Brundidge & Neelly, for appellant.
    1. There was ample time in which plaintiffs might have filed their cross-complaint and put appellant on notice, from the time it filed its intervention to the time the case was called for trial. The filing of the cross-complaint after the jury was impaneled came in the nature of a surprise and appellant was entitled to a continuance. 67 Ark. 144; 75 Id. 468; 103 Id. 83.
    2. Instructions numbered 2 and 5, upon the question of ratification, requested by the intervener, ought to have been given. Whether the plaintiffs authorized the sale or not, after Bridgman told themi he had sold it and they accepted the money as part payment, that was a ratification. 124 Ark. 364; 137 Id. 534; 54 Id. 220; 96 Id. 510.

      John E. Miller and G. E. Yingling, for appellees.
    1. There is no showing in the record that there was any abuse of discretion in refusing the continuance. 93 Ark. 119, 123; .40 Id. 114; 94 Id. 430. Neither does it appear that any prejudice resulted. 112 Ark. 507; 137 Id. 387; 88 Id. 185; 113 Id. 83. If error was committed, it was cured by the verdict. 72 Ark. 316; 101 Id. 424 ; 95 Id. 209.
    2. Appellant’s requested instructions 2 and 5 were not justified by the facts in the case. The suit does not involve the logs actually purchased by appellant and for which, it paid Bridgeman, hut only the ownership of the logs which the latter had not succeeded in delivering to any one. On the question of ratification, see 21 R. C. L. 923, § 101; 78 N. J. L. 637; 76 Atl. 1024; 136 Am. St. 627; 107 Va. 368; 13 Ann. Cas. 277; 66 Ark. 10; 55 Id. 423; 21 R. C. L. 928; § 106; 40 La. A., 87; 8 Am. St. 512; Ann. Cas. 1916-A, 183
   Hart, J.,

(after stating the facts). The court submitted to the jury the issue of fact between the plaintiffs and the defendant, Bridgeman, as to the ownership of the logs. The jury returned a verdict for the plaintiffs, and, no appeal having been taken from the judgment rendered, the issue of ownership of the logs as between the plaintiffs and Bridgeman is not involved in this appeal.

Counsel for Brown & Hackney, Inc., assign as error the refusal of the court to give instructions number 2 and 5, which are as follows:

“2. The jury are instructed that if the plaintiffs, or either of them, knew of the sale of said logs made by Bridgeman to Brown & Hackney, Inc., and accepted the payments made by them, then they would be held to have ratified said sale, and your verdict will be for the interveners for the value of logs in controversy.”
“5. The jury are instructed that if you find from the testimony in this case that the defendant, Bridgeman, notified plaintiffs, or either of them, that he had sold logs from the land in controversy to the Brown & Hackney Company, and that he had received $1,000 in payment of same, and that he turned this money over to said plaintiff, then this would be a ratification of said sale, and said plaintiff would be estopped from claiming said logs. ’ ’

There was no error in refusing to give these instructions. It will be noted that instruction number two tells the jury as a matter of law that Brown & Hackney, Inc., are entitled to recover the value of the logs if it should find that plaintiffs ratified the sale. This was, error. According to the testimony of Bridgeman, about 23,000 feet of logs in controversy were never delivered to Brown <§s Hackney, Inc. It is true he made a verbal agreement to sell that company 52,000 feet of logs, but it is fairly inferable from his testimony that the logs were to be paid for as delivered to it. Bridge-man delivered to Brown & Hackney, Inc., 30,000 feet of logs, and it paid him for that amount. He testified that the balance would be paid when the logs should be delivered. The balance of the logs were taken from Bridge-man in the replevin suit before they were delivered to Brown & Hackney, Inc. Bridgeman states positively that these logs were never delivered to Brown & Hackney, Inc. Hence the court would have erred in telling the jury that the interveners were entitled to recover the value of the logs if the jury should find that the plaintiffs had ratified the sale of the logs by Bridgeman to them.

If the plaintiffs themselves had made a contract direct with Brown & Hackney, Inc., to sell it 52,000 feet of logs at $40 per thousand, payment to be made as the logs were delivered, and after delivering 30,000 feet of the logs, had refused to deliver the balance, Brown & Hackney, Inc., could not have recovered the logs or their value from the plaintiffs. Replevin cannot be maintained without showing a general or special ownership of the property in the plaintiff, together with the right of immediate possession. A delivery, either' actual or constructive, is essential to the consummation of a sale of chattels, and the title does not pass until there has been a delivery. Hodges v. Nall, 66 Ark. 135; Deutsch v. Dunham, 72 Ark. 141; Georgia Marble Finishing Works v. Minor, 128 Ark. 124, and Sherrill Hardwood Lbr. Co. v. H. D. Glass Lbr. Co., 151 Ark. 513.

As we have already seen, Bridgeman testified that the logs in question had never1 been delivered to Brown & Hackney, Inc., and this raised an issue of fact to be submitted to the jury on the question of whether the title to the logs had passed to Brown & Hackney, Inc., under its executory contract of purchase entered into with Bridgeman. It would have been error for the court to have told the jury as a matter of law that the intervener could recover the value of the logs in controversy, or that the plaintiffs would be estopped from claiming the logs if they had never in fact been delivered to Brown & Hackney, Inc. In case there was no delivery so as to consummate the sale, the remedy of Brown & Hackney, Inc., would have been a suit to recover damages on account of the breach of its contract, and it could not maintain a suit for the conversion of the property or the possession of it. The distinction between a sale which transfers the ownership and an executory contract to sell, not consummated by delivery, which gives but an action for the breach of it, is a broad one and must not be confused.

It is also insisted that the court erred in refusing to grant Brown & Hackney, Inc., a continuance in the cause. The ground upon which this assignment of error is predicated is that the plaintiffs were permitted to amend their complaint at the beginning of the trial so as to ask damages against Brown & Hackney, Inc., for $400. This assignment of error is not well taken, for two reasons. In the first place, no judgment was rendered against Brown & Hackney, Inc., for damages, and we cannot see how any prejudice could have resulted to it in the premises. Ag’ain, it is not possible for us to say that there was error in refusing to grant the continuance on the ground of surprise without counsel had set out the particular respect in which they were surprised. We cannot take the word of a party that surprise.would result, but he should show to us, in substance at least, in what the surprise consisted, before we can convict the court below of error. It was not done so here, and the refusal to grant the motion for a continuance in this form was not error. The new issue in fact only related to the number of logs which had been cut and stacked at Worden’s spur; and no new or additional testimony was necessary.

We find no reversible error in the record, and the judgment will be affirmed.


text:
    Burt v. Henderson.
    Opinion delivered March 20, 1922.
    1. Pleading — answer inuring to benefit of co-defendant. — Defenses interposed by one defendant common to both defendants inure to the benefit of a co-defendant who did not answer or appear.
    2. Eminent domain — liability of contractor. — In condemnation proceedings contractors are exempt from liability on account of damages growing out of the appropriation of land for public purposes, except for injury resulting to the land on account of negligent or unskillful work.
    3. Damages — exemplary damages. — Punitive damages are not recoverable where no actual damages are sustained.
    Appeal from Monroe Circuit Court, George W. Clark, Judge;
    reversed.

      Bogle (& Sharp and Emerson, Donham & Shepherd, for appellant.

      Hughes é Hughes, for appellees.
   Humphreys, J.

This is an appeal from judgments rendered against appellant in the Monroe Circuit Court in suits instituted by R. H. Henderson and Katie C. Henderson separately against appellant and Richland Township Road Improvement District jointly, and consolidated for trial. Although served with process, appellant did not plead or appear, and the trial resulted in two judgments being rendered against him, one in favor of R. R. Henderson for $2,400 actual damages, and one in favor of Katie C. Henderson for $600 punitive damages. The purpose of the suits was to recover actual and punitive damages by each appellee against appellant for tearing down a fence, entering upon and removing dirt from certain lands within the road district to construct a road along the east boundary line thereof. The gist of the allegations contained, in the complaints and amendments thereto was that the Richland Township Road Improvement District, created by act 219 of the General Assembly at its extraordinary session of 1920, through its duly appointed, qualified and acting commissioners, entered into a contract with the appellant, J. A. Burt, to construct the road authorized by said act; that, by and with the consent of said road district, said contractor; his agents, servants and employees, without authority from appellees, tore down a string of appellee’s fence 500 feet- in length and excavated 1,200 yards of dirt for the purpose of constructing said road, leaving a pit approximately 23 feet wide, 600 feet long, and 3 feet deep, for which there was no outlet; that as a result water stands in the excavation the entire year, and on account of the nearness of the pond to the residence on the land the health of those who attempted to live there was impaired; that on account of the unlawful, wilful and malicious manner in which appellants trespassed upon said lands each of the appellees suffered actual damages in the sum of $2,400 and punitive damages in the sum of $600.

Answers were filed to the complaints and amendments thereto by the Richland Township Road Improvement District, admitting its creation under special act of the extraordinary session of the Legislature of 1920, and alleging that the removal of the fence and widening of the road was done under authority of an order of the county court of Monroe County; that appellant J. A. Burt was employed by the district to construct the road, and that the acts complained of were not done wantonly, unlawfully or maliciously; that the land upon which the excavation was made was low and not in cultivation; that no damage resulted to appellee on account of the acts complained of.

Answers were not filed by appellant J. A. Burt. The causes were continued as to Richland Township Road Improvement District, and the judgments complained of were rendered against appellant J. A. Burt by default, a jury having first been sworn for the sole purpose of ascertaining and assessing the damages.

The question presented on this appeal is whether the court erred in rendering judgments under the state of the pleadings. The judgments by default were rendered. against appellant because he failed to plead or appear. Appellant’s co-defendant, who was sued jointly with him, filed answers to the complaints and amendments thereto. The complaints and amendments, as well as the answers, disclosed that appellant removed the fence inclosing the land in question and excavated a large quantity of dirt for the construction of a road along the east boundary of said land as the agent of the road district created by special act of the Legislature. The answers of the road district, when read as a whole, in effect, assume the responsibility for all acts of appellant in entering upon and removing the dirt from the lands in question. It alleged in its answers that the fence was taken down under an order of the county court of Monroe County for widening the road; that the dirt was removed from the land for the purpose of constructing the road authorized by the act creating the district, and denied that the fence was torn down or the dirt removed by said district, its agents or servants, maliciously, wantonly or unlawfully, as alleged in the complaints. It also alleged that the lands were low, uncultivated, and not damaged by the removal of the dirt. The defenses interposed by the district were, in most part, common defenses for both appellant and the district. Defenses interposed by a co-defendant common to both inure to the benefit of the defendant who does not answer or appear. Fletcher v. Bank of Lonoke, 71 Ark. 1; Lowe v. Walker, 77 Ark. 103; Carpenter v. Ingram, 77 Ark. 299; Gunnells v. Latta, 86 Ark. 304. It was error therefore, under the doctrine announced in the cases cited, to render judgments by default against appellant.

Again, in condemnation proceedings contractors are exempt from liability on account of damages growing out' of the appropriation of lands for public purposes, except for injury resulting to the landowner on account of negligent or unskilful work. Wood v. Drainage District No. 2, 110 Ark. 416; Timothy J. Foohey Dredging Co. v. Mobin, 118 Ark. 1; Mitchell v. Hahn, 131 Ark. 286. The complaints in the instant case failed to charge any injury resulting from unskilful and negligent work of appellant, who was .the contractor, in entering upon and removing the dirt from the premises.

Again, the judgment rendered in favor of Mrs. Katie 'C. Henderson in the sum of $600 for punitive damages is clearly erroneous, for in no event can punitive ’ damages be assessed where actual damages are not sustained.

The judgments having been rendered without justification in the law, they are reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.


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    Moreno-Burkham Construction Company v. Thorpe.
    Opinion delivered March 27, 1922.
    1. Garnishment — sufficiency of return of service. — A sheriff’s return to a writ of garnishment that he delivered a copy thereof to the within named company by delivering to its manager a true and perfect copy is insufficient in failing to show whether the company was a domestic or foreign corporation or a partnership; if the company was a domestic corporation, the return should show that service was had on its agent during the absence of the president, as required- by Crawford & Moses’ Dig., § 1147; if it was a foreign corporation, the return should show that service was had upon the agent designated by the corporation as required by § 1829 of Crawford & Moses’ Dig., or upon the agent, servant or employee in charge of a branch office in the county; if it was a partnership, service must be had upon the individual members composing it.

      2. Appeal and error — presumption as to service op process.— No presumption can be indulged upon appeal from a judgment by default that there was some other and different service had from that which appears in the record.
    Appeal from Washington Circuit Court, W. A. Dickson, Judge;
    reversed.
    STATEMENT OP PACTS.
    Albert Thorpe sued E. G. Culbertson in the circuit court to recover the sum of $321.95 alleged to be due him on a certificate of indebtedness signed by said Culbertson which is set forth in the complaint. Thorpe also alleged that the Moreno-Burkham Construction Company was indebted to E. G. Culbertson in the sum of $400, and procured a writ of garnishment to be issued against said Moreno-Burkham Construction Company. The return of the sheriff on writ is as follows:
    “State of Arkansas,
    “County of Washington.
    “On this 21st day of April, 1921, I have duly served the within writ by delivering a copy and stating the substance thereof, to the within named E. G. Culbertson and Moreno-Burkham Construction' Co., by delivering to C. L. French, manager of Moreno-Burkham Construction Company, a true and perfect copy of this summons.
    “H. E. Jackson, Sheriff.
    “J. G. Gardner, D. S.”
    Subsequently a decree by default was entered of record against the defendant, E. G. Culbertson, and the garnishee, Moreno-Burkham Construction Company, in the sum of $321.95.'
    The Moreno-Burkham Construction Company has duly prosecuted an appeal to this court.

      John Mayes, for appellant.
    The court did not have jurisdiction. The summons was not legally served. C. & M. Digest, sec. 1826 et seq.; See also 59 Ark. 583.
    Service of summons upon any agent or employee of a corporation is not binding. 62 Ark. 144; 32 Ark. 17; 40 Ark. 141; 59 Ark. 583.

      Walker S Walker, for appellees.
    The testimony fails to show that Moreno-Burkham Construction Company is a corporation, having an agent for service. It is presumed that the service was regular, and that the judgment should be affirmed.
   Hart, J.,

(after stating1 the facts). The return of service on the writ of garnishment in this cause shows no sufficient service on the garnishee, MorenoBurkham Construction Company. It does not appear from the record whether the Moreno-Burkham Construction Company was a foreign or domestic corporation, or a partnership. If it was a domestic corporation, the return is not sufficient, because it does not show that service was had on the agent of the corporation during the absence of the president of the company, as required by § 1147 of Crawford & Moses’ Digest. If appellant was a foreign corporation, the return is not sufficient because it does not show that service was had upon the agent designated by the corporation in the manner provided by § 1829 of Crawford & Moses’ Digest. See Arkansas Construction Co. v. Mullins, 69 Ark. 429, and Southern Building & Loan Association v. Hallum, 59 Ark. 583. Neither does the return show that the summons was served upon the agent, servant, or employee in charge of a branch office or other place of business of the corporation in Washington County, Ark. Hence.the return is not sufficient as covering the matter of service of process on domestic and foreign corporations who keep or maintain a 'branch office or other place of business in any of the counties of this State. See Fort Smith Lbr. Co. v. Shackleford, 115 Ark. 272, and Terry Dairy Co. v. Parker, 144 Ark. 401.

If appellant was a partnership, service must have been had upon the individual members composing the partnership, and the return is insufficient because it does not show that fact.

The effect of the above decisions is that no presumption can be indulged upon an appeal from a judgment by default that there was some other and different service had from that which appears in the record.

The judgment is therefore reversed and the cause remanded with directions to proceed in the cause, the appellant having entered its appearance by appealing.


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    Pate v. State.
    Opinion delivered March 27, 1922.
    1. Jury — summoning bystanders — exhaustion op panel. — Under Crawford & Moses’ Dig., § 3145, providing that “when the panel is exhausted the court shall order the sheriff to summon bystanders to at least twice the number necessary to complete the jury,” it was not error to refuse to delay the trial until the members of the regular panel engaged in the trial of another case were available, as the panel was exhausted when all the jurors available for duty had been called and examined without completing the jury.
    2. Jury — who are “bystanders.” — Crawford & Moses’ Dig., § 3145, requiring the sheriff to summon “bystanders” to complete the jury, does not necessarily require the summoning of persons then present in the court room, and the sheriff may select electors possessing the qualifications of jurors from the body of the county.
    3. Jury — presumption when selection made by sheriff. — While the court, for sufficient cause, may designate some person other than the sheriff to summon bystanders as jurors, under Crawford & Moses’ Dig., § 3147, in the absence of any showing of cause, the presumption will be indulged that the sheriff has no purpose in summoning special jurors, except to aid in administering the law.
    4. Jury — right of defendant to demand service. — One charged with the commission of crime has no right to demand the serving of any particular person as a juror.
    5. Criminal law — demonstrative evidence. — It was not error in a murder case to permit the introduction in evidence of the garments worn by the deceased at the time she was shot to show the location of the wounds, though the garments had been washed since deceased wore them.
    6. Criminal law — abstract instruction. — It was not error to refuse an instruction which was not based upon testimony.

      7. Criminal law — statements by accused as evidence. — Where defendant made certain identical statements both before and after the administration of opiate, it was not error to refuse to instruct the jury not to consider any of such statements if some of them were made after the administration of the drugs.
    8. Criminal law — instructions as to reasonable doubt. — Where the court had given the usual instruction as to reasonable doubt, it was not error to refuse to charge further “that it was also the law that if there was any reasonable view of the evidence that could be adopted, it is the duty of the jury to adopt that view and acquit the defendant.”
    9. Criminal law — experts—hypothetical questions. — Hypotheti- • cal questions addressed to experts must contain all the undisputed facts and may embrace any other fact which the testimony tends to establish.
    10. Criminal law — hypothetical questions. — It was error to refuse to permit expert witnesses to answer hypothetical questions which embraced substantially all the material undisputed facts.
    11. Criminal law — examination of expert. — On cross-examination - of an expert who has answered a hypothetical question, opposing counsel may take the expert’s opinion on the hypothetical question, stripped of any disputed facts, or he may take it upon the hypothetical question with disputed facts added to it.
    12. Criminal law — hypothetical question. — In a murder trial, a hypothetical question to experts called to express, their opinions as to accused’s sanity at the time of the killing, to which only general objection was made, held not fatally defective in not reciting accused’s remark, made upon his arrival at his mother-in-law’s home where the killing occurred, about having heard the family were sick, so that the trial court’s refusal to permit the experts to express an opinion as to accused’s sanity based on it was reversible error.
    A/ppeal from Miller Circuit Court, George It. Haynie, Judge;
    reversed.

      Will Steel and Pratt P. Bacon, for appellant.
    The regular panel of petit jurors having been exhausted, the completion of the jury should have been selected from the bystanders; bystanders, meaning those present in .the court room. C. & M. Digest, § 6378.
    The hypothetical question embraced all the facts in evidence, and the court erred in sustaining an objection to it. 120 Ark. 530; 126 Ark. 455; 146 Ark. 509.

      If the defendant made certain statements while under the influence of opiates, the jury should not have been allowed to consider them, and the court should have so instructed the jury. 1 R. C. L. 487; 204 111. 208; 68 N. E. 505; 98 A. S. R. 206; 66 L. R. A. 304; 216 Mo. 378; 115 S. W. 998; 20 L. R. A. (N. S.) 1142.

      J. 8. TJtley, Attorney G-eneral; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Where there is a conflict between the record entry and the bill of exceptions, the record entry must prevail. 1 Ark. 349; 9 Ark. 133; 17 Ark. 332; 24 Ark. 499; 83 Ark. 517; 108 Ark. 191.
    Tn summoning jurors, the sheriff is not restricted to the bystanders — those present in the court room — but may summon any elector from the body of the county. 29 Ark. 22; 35 Ark. 639.
    There was no error in permitting the clothing wom ■by deceased at the time she was killed, to be exhibited to the jury. Ency. of Ev. vol. 6, pp. 607-608. It must be properly identified. 128 Ala. 17; 29 So. 569.
    The hypothetical question propounded assumed certain facts which were not in proof, and the court was right in refusing it. It did not present the whole case. Ency. of Ev. vol. 5, p. 626; 71 Mich. 158; 39 N. W. 28.
   Smith, J.

Appellant was tried under an indictment which charged him with the crime of murder in the first degree, alleged to have been committed by shooting Bessie Pate, his wife. He was convicted of murder in the second degree and given a sentence of twenty-one years in the penitentiary, and has appealed.

The first assignment of error is that the court erred in refusing to quash a special venire ordered at his trial. It appears that the jury was divided into two panels, and when appellant’s case was called one of these panels was exhausted without making the jury. The other panel was at the time engaged, in considering a case which had been submitted to it. Appellant demanded that his trial be stayed until this second panel had been discharged and was available in his case. The court overruled this motion and ordered the sheriff to summon as veniremen twice the number then needed to complete the jury.

No error was committed in this ruling. This exact question was raised in the case of Johnson v. State, 97 Ark. 131, and it was there held that the trial court committed no error in refusing to delay the trial until the members of the regular panel engaged in the trial of another case were available. If it were otherwise, intolerable delays would result in the administration of justice. Within the meaning of § 3145, C. & M. Digest, the panel was exhausted when all the jurors available for duty had been called and examined without completing the jury.

It is next insisted that error was committed by the court in failing and refusing to direct the sheriff to summon as bystanders persons then present in the court room as spectators, it being’ insisted that § 3145, C. & M. Digest, requires that such persons be first called. This section does require the sheriff to summon bystanders, and further provides that, if the jury shall not be completed out of the jurors so summoned, bystanders shall again be summoned to twice the number necessary to complete the jury, and that this mode shall be continued until the jury is completed. But we think counsel •give the word “bystanders” a meaning too restricted. If they are correct in the interpretation given the statute, the administration of the law might be hampered, if not defeated, by the exhaustion of the spectators attending court without completing the jury.

The statute cannot :be given any such narrow meaning. By bystanders is meant electors possessing the qualifications of jurors, and in their selection the body of the county is open and available to the sheriff. Rogers v. State, 133 Ark. 85; Gay Oil Co. v. Akins, 100 Ark. 552.

The court may, for specific cause, designate some person other than the sheriff to summon jurors. Section 3147, C. & M. Digest. But, unless this showing is made, the presumption must be indulged that the sheriff has no purpose in summoning special jurors except to aid in administering the law. Of course, the jurors thus summoned are subject to examination by both the State and the defendant, and the qualification of each is passed upon by the court.

We have many times held that one charged with the commission of crime has no right to demand the service of any particular person as a juror. McCain v. State, 132 Ark. 497.

We think it certain there was no legislative intent to restrict the sheriff, in summoning special jurors, to persons who were already on hand.

Objection was made, and an exception saved, to the action of the court in permitting the introduction in evidence of the garments worn by the deceased at the time she was shot, it being admitted that the garments had been washed since deceased had worn them. No error was committed in this respect. Washing did not change the character of the garments, and they were admissible to show the location of the wounds.

Error is assigned in the refusal of the court to give instructions numbered 9 and 10 requested by appellant. Instruction numbered 9 declared the law to be that, if appellant went to deceased to effect a reconciliation, and, while thus engaged, was aroused to great passion, either of anger, fear or terror, -and that such passion was caused by a provocation apparently sufficient to make it irresistible, appellant could not be convicted of any higher degree of homicide than manslaughter. No error was committed in refusing this instruction, as there was no testimony upon which to base it. According to appellant’s version of the shooting, he accidentally shot his wife while temporarily insane, and it was not error to refuse to further complicate the issues by submitting still another defense which there was no substantial evidence to support. Instruction numbered .10 was to the same effect, substantially, and for the reasons just stated it was not error to refuse it. It may be said, in this connection, that the instructions given fairly and fully submitted the issues raised by the testimony.

After killing bis wife, appellant twice shot himself, and the physician who attended him administered certain opiates. There was testimony that appellant made statements about the shooting both before and after the administration of the opiates, and that the statements were substantially identical. An instruction numbered 15, requested by appellant, dealt with the weight to be given the statements of appellant thus made, and an exception was saved to the action of the court in refusing to give the instruction. This instruction was properly refused, as it was a charge upon the weight of testimony. Moreover, the testimony qn the part of the State tended to show that the damaging statements in question were made by appellant both before and after the administration of the opiates; yet the instruction as requested would have required the exclusion of the statements from the consideration of the jury if the-finding was made that appellant was under the influence of opiates when any of them were made, if some of the statements were made after the administration of the drugs, although they were identical with those made before.

In the concluding argument, one of appellant’s counsel stated that, in addition to what the court had said in regard to the existence of a reasonable doubt (and the court had given the usual instructions on that subject), “that it was also the law that, if there was any reasonable view of the evidence that could be adopted, it is the duty of the jury to adopt that view and acquit the defendant.”

The court refused to so charge the jury and stated that such was not the law, and an exception was saved to that action.

No error was committed in this ruling. It is not a part of the jury’s duty to approach the consideration of a case with the purpose of acquitting the accused if any reasonable view of the testimony will permit that action. Upon the contrary, the jury should analyze the testimony under the rules given by the court to aid them in the discharge of that duty with the sole purpose of ascertaining the truth in regard to the matters of fact in issue. The jury should determine what witnesses they will believe, and what effect they will give to the testimony which they credit, and this should be done with the sole purpose of ascertaining the truth, whatever it may ■be, and when this has been done, and not before, the question of reasonable doubt arises. If there then exists a reasonable doubt of the guilt of the accused, the jury should acquit, and the instructions given told the jury to acquit if there was any reasonable doubt of appellant’s guilt. Dempsey v. State, 83 Ark. 81; Starnes v. State, 128 Ark. 302; Lackey v. State, 67 Ark. 416; 4 Wigmore on Evidence, $ 2497; Underhill on Criminal Evidence (2nd Ed.) § 12.

One of the attorneys for appellant was also the attorney for the appellant in the case of Barker v. State, 135 Ark. 404, in which case he asked an instruction on the subject of reasonable doubt in Which he émployed substantially the same language as that set out above.The trial court struck out that part of the instruction and. that action was assigned as error, but we refused to reverse the judgment because the court had, in the instructions given, told the jury to acquit the defendant if they entertained a reasonable doubt of his guilt. As has been said, the instructions which were given fully and properly defined the duty of the jury in this respect.

The most difficult question in the case relates to the action of the court in refusing to permit two expert witnesses to express the opinion that appellant was insane, which opinion would have been based upon an hypothetical question submitted to them. This question covers four pages of the transcript, and as soon as it was stated objection was made to it by the prosecuting attorney, and that objection was sustained by the court. The record shows that when the objection was made, counsel for appellant was under the apprehension that the objection to the question was that it included hypotheses which there was no testimony to support, as shown by the following statement then made by him:

Counsel for appellant said: “I think he (prosecuting attorney) ought to state the grounds of his opjectión, if your honor please.” The court remarked that it was unnecessary to state the grounds, as he had heard the question. Thereupon counsel for appellant said: “If your honor please, I tried to cover, as I understand, the facts as there detailed by the witnesses for the defendant in this case, by the defendant himself. I do not think that I have put in that question any fact or circumstance that there is not some positive testimony on * * *

The objection to the question was sustained without the ground therefor having been stated.

This ruling of the court is now defended by the Attorney General upon the ground that the question assumed certain facts which were not in testimony, and answers based on the question would not therefore have been responsive to the testimony.

We' have carefully considered this question, and we find no fact there included which is without testimony to support it — much of it being that of appellant alone — and no fact is pointed out to us as being without testimony upon which to‘predicate it.

In our consultation we have considered whether the question was defective in that it did not include all the material undisputed testimony. We have frequently and recently considered the essentials of an hypothetical question upon which the opinions of witnesses who testified as experts may be taken, and the authorities need not be again reviewed. Kelly v. State, 146 Ark. 509; Bell v. State, 120 Ark. 530; Williams v. Fulkes, 103 Ark. 196; Ford v. Ford, 100 Ark. 518; Taylor v. McClintock, 87 Ark. 243.

The hypothetical question must contain all the undisputed facts, and, in addition, may embrace any fact which the testimony tends to establish. Opposing counsel may, on cross-examination, if he sees proper to do so, take the opinion of the expert on the hypothetical question, stripped of the recited facts which are disputed, or he may take it upon the hypothetical question with disputed facts added to it, and the value of the witness’ opinion is a question at last for the jury. Kelly v. State, supra.

After a careful examination of the record, we have found no undisputed fact omitted from the question, except the statement of appellant that, when he came to the home of his mother-in-law, where the killing occurred, and where his wife was then staying, he remarked to his mother-in-law that he had heard they were all sick, and he had come to see how they were. This was, of course, an important circumstance; but we think it was substantially covered by the facts recited in the question. It was there stated that, on Friday, the day before the killing, the defendant “was informed by Mrs. Miers that defendant’s wife was sick and wanted to see him, and had sent for him to come to her. The defendant was very happy at this information, for he believed that his wife was about to return to him. He was very much elated, and immediately started to where she was. Defendant stated to Mr. Miers that he was very glad to get the message that his wife wanted to see him, for he was sure she was coming back to him. When defendant got to where his wife was, things were pleasant for about an hour. * * * ”

It was, of course, the duty of appellant to ask a competent question; but in view of the general objection made to it we think it was not so fatally defective as to be inadmissible in that it did not recite appellant’s remark made upon his arrival at his mother-in-law’s home about having heard the family were all sick, and that it did in fact embrace substantially all the material undisputed testimony, and the court erred in refusing to permit the experts to express an opinion as to appellant’s sanity based upon it.

For the error in excluding the answers of the experts to the hypothetical question, the judgment must be reversed and the cause remanded.