author: Wood, J.

text:
    McInturf v. State.
    Opinion delivered November 14, 1927.
    1. Prosecuting attorneys — fee on forfeiture of bail bond.— Where a prosecuting attorney recovers a judgment on a forfeited bail bond, he is entitled to a fee of 10 per cent, on the amount recovered, taxable as costs, and the Governor’s proclamation remitting the forfeiture and relieving the bondsmen from liability does not remit the fee due him.
    2. Costs — remission by executive. — While an executive may'remit costs and tax fees due the State, he has no power to remit costs which belong to individuals or to- court officers.
    3. Sheriffs and constables — collection fee. — Where the sheriff had not collected the amount of a forfeited bond, he was not entitled to the collection fee, under Acts 1925, pp. 649-651.
    Appeal from Logan Circuit Court; J ames Cochran, Judge;
    reversed in part.

      W. L. Kincannon, for appellant.

      Dave Partain, for appellee.
   Wood, J.

This is an appeal from the Logan Circuit Court for the- Southern District, from the judgment of the court upon a motion to retax the cost accruing by reason of the forfeiture and subsequent judgment upon an appeal bond of one Frank Mclnturf. At the August, 1925, term of the Logan Circuit Court for the Southern District the said Frank Mclnturf was convicted of the crimes of possessing a still and manufacturing mash, and from the judgment of conviction he prayed and was granted an appeal to the Supreme Court of Arkansas, and, his bond being fixed in the sum of $2,000, Laura Mclnturf, Maggie Skinner and J. 0. Kincannon duly executed and filed with the clerk of said court, on the 24th day of August, 1925, their bond in the sum of $2,000, conditioned as required by law for the appearance of said Frank Mclnturf. The appeal on behalf of Mclnturf was never perfected, and, at the regular January, .1926, term-of the Logan Circuit Court for the Southern District, a forfeiture was duly taken on said bond and scire facias issued and served upon the defendants as bondsmen.

Oil tlie 19th day of August, 1926, the same being a day of the regular August, 1926, term of the court, the cause of the State of Arkansas versus Laura Mclnturf, Maggie Skinner and J. 0. Kincannon came on to be heard, and said defendants failed to answer or plead, and judgment on the said bond was rendered against them, and thereafter, on the same day, the defendants filed in open court a proclamation of the Governor suspending all further proceedings upon said judgment for the collection of same, upon condition that defendants pay the court costs, and the court ordered that, upon the payment of the court costs, such proceedings be suspended.

Mrs. Laura Mclnturf paid $155.40, which amount, appellants claim, was all the costs incident to the prosecution of the said Frank Mclnturf.

On the 20th day of August, 1926, the clerk of said circuit court rendered defendants a bill — $200 to the prosecuting attorney and $100 to the sheriff as commission on said bond. The defendants, on “the 23rd of August, 1926, filed this motion to retax cost, and, upon a hearing' thereof, said circuit court rendered a judgment against the defendants for $313.75 ($6.75 to the clerk, which has been paid), $205 for the prosecuting attorney and $102.10 for the sheriff, from which' is this appeal.

This case is ruled completely as to the prosecuting attorney’s fee by the case of CarlLee v. Williams, 111 Ark. 465, 163 S. W. 1198, where we held, quoting syllabus : “Where a prosecuting attorney recovers .judgment on a forfeited bail bond, he is entitled to his fee of ten per cent, of the amount recovered, and a proclamation of the Governor remitting the forfeiture and relieving the bondsmen from liability does not remit the fee due the prosecuting attorney.” In the above case this court cites and quotes from former decisions of the court. It would be supererogation to repeat here what we there said. In addition to the eases there cited and quoted from, see also Cole v. State, 84 Ark. 473, 106 S. W. 673, and Edward v. State, 12 Ark. 122. In the last case we said: “Costs are neither fines nor forfeitures, nor are they imposed by way of punishment or as amercement at common law, but bjr way of sequence to every judgment, whether in civil or criminal cases, as a matter of common justice to the parties complainant, witnesses and officers of the court, although the judgment is in favor of the complainant alone, costs, then, partakiug .in no respect of the nature either of punishment or of guilt, are without the sphere of the legitimate legal operation of a pardon, however general in its terms.”

In 20 R. C. L., at page 531-532, § 12, the general doctrine is stated as follows: “While an executive may remit costs and tax fees due to the State, he has no power to remit costs which belong to private individuals or to court officers.” While the Governor’s proclamation was dated on August 18, 1926, it was not filed in the office of the clerk of the circuit court of Logan County until August 19, 1926. In the meantime judgment had been rendered by default on the forfeited bail bond, as shown by recitals of such, judgment; therefore the costs, consisting of the fees due the prosecuting attorney and the sheriff under the law, had accrued before the Governor’s proclamation was filed suspending further proceedings on the judgment. Under the doctrine of CarlLee v. Williams, supra, the'trial court ruled correctly in overruling appellant’s motion to retax the costs as to the. prosecuting attorney and in rendering- the judgment ag’ainst them in the sum of $200, being the fee for the prosecuting- attorney. But the court erred in not granting the motion as to the fee of the sheriff. Act 220 of the Acts of 1925, pages 649-51, provides: “The fees for the sheriffs of Arkansas' shall be as follows: For collecting and paying over all fines, penalties and forfeitures, 5 per cent. ’ ’

The uncontroverfed facts show that the sheriff had not collected the amount of the forfeited bond. Therefore he was not entitled to any fee. He is only entitled to such fee as the statute allows him. The judgment allowing the prosecuting- attorney a fee of $200 is affirmed. The judgment awarding the sheriff a fee of $100 is reversed, and. the cause as to him is remanded, with directions to the trial court to enter judgment granting the motion to retax as to the sheriff.


source: Caselaw Access Project

license: Public Domain

text:
    Moore v. State.
    Opinion delivered November 14, 1927.
    1. Intoxicating liquors — sufficiency of evidence. — In a prosecution for selling liquor, based on the testimony of witnesses who remained drunk about five hours after the purchase, the evidence held to sustain a conviction.
    2. Criminal law- — judicial notice — matter of common knowledge. — The court will not take judicial notice as to whether it is impossible or even improbable to produce a state of intoxication continuing for five hours from a pint of whiskey drunk by two men, especially bootleg liquor.
    3. Criminal law — credibility of ’witnesses. — The jury are the sole judges of the credibility of witnesses and of the weight to be given their testimony.
    4. Criminal law — refusal of instructions otherwise covered. — • Refusal of instructions requested is not error, where they are properly covered both as to substance and form in other instructions given.
    5. Criminal law — instruction as to reasonable doubt. — In a prosecution for selling liquor, instructions that defendant was presumed innocent throughout the trial, and that the State had the burden to prove his guilt beyond reasonable doubt, and that the reasonable doubt was a state of mind in which the jury could not say they felt an abiding conviction, amounting to moral certainty of guilt, held proper.
    G. Criminal law — instruction as to credibility of witnesses.— An instruction relating to the credibility of witnesses that the jury might consider whether the witness was contradicted or corroborated by other facts proved in the case, being general in its terms, and not singling out defendant, was not error.
    7. Criminal law — credibility of witnesses. — A jury in weighing the evidence and passing on the credibility of witnesses may consider whether the testimony of any witness is contradicted or corroborated, by other proved facts in the case.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      J. M. Carter and B. E. Carter> for appellant.

      11. W. Applegate, Attorney G-eneral, and Darden Moose, Assistant, for appellee.
   Wood, J.

The facts are correctly stated by counsel for the appellant as follows: Appellant was indicted and convicted under a charge of selling liquor in Little River County. The indictment was returned at the July term, 1927, of - the court. Two witnesses testified, on behalf of the State, that they bought a pint of liquor from the defendant during the overflow of Red River in April, 1927, and that they bought it on the K. C. S. Railway Company’s bridge where it crosses Red River, near Index; that they went down to the river .from Ogden, Arkansas, about two miles north of the bridge, between three o’clock and four o ’clock in the afternoon one day, to seethe overflowed river, and walked out on the railroad bridge that crosses the river, and met appellant on the bridge about sixty feet from the north end, and bought the liquor from him at that place on the bridge, and paid him one dollar and fifty cents for it (one of them said $1) and stood there where they bought it, and the two of them drank all of it and threw the bottle away; that they then walked back to Ogden, about two miles, where they lived; that, at that time, Red River was on. a big overflow and the water was all over the bottoms from Ogden to the bridge, and they had to walk on the K. C. S. Railway’s tracks across the bottoms to the bridge, and that the water was over everything but the railroad dump on which the track was laid, and stood up against the dump; that there was no other way to get to the bridge; that, when they went back to Ogden, they remained there a while, and then dressed and went to Ashdown, about ten miles away, to attend some sort of exercise at the Ashdown High School that night; that, while they were at Ashdown, they procured an automobile, and were riding around that night in Ash-down, and ran into a young lady’s automobile, and were both arrested by the Ashdown police and put in jail and kept there over night, and that the officers arresting them asked where they got their liquor which made them drunk, and they told the officers they got it from the appellant, and that was the way the officers learned who sold them the liquor. They also testified they were drunk when arrested, and that they had drunk no liquor except what they got from the appellant on the bridge. One or both of them testified that they were arrested some time in the night, about eight o’clock.

Appellant denied selling the liquor, and also denied seeing these young men at all on the bridge or elsewhere that afternoon, and introduced as witnesses two young white men, who were members of a section crew on the railroad bridge and the other bridge between the bridge across Red River and Ogden, and they testified that they and this section foreman were at work on the afternoon of the day these two State witnesses swore they went down the railroad track from Ogden to the bridge across the river, and that they were well acquainted with both the State witnesses, and lived at the same place, Ogden, and they did not see either of them on the track or dump that afternoon. Also that Mr. Casey, the section foreman, was with' them, and that, at the time of the trial, Casey was at Bloomburg, Texas.

Other witnesses were called, who testified that they were at the bridge that afternoon, and did not see appellant, and also that the railroad company was at the time keeping guards on the Red River bridge for the purpose of keeping people off the bridge, and that no persons were allowed to go out on the bridge. Other witnesses testified that they were planting cotton in the same field with defendant at the time the 'State witnesses said they bought the liquor from him, and that defendant never left the field or his work at any time that afternoon.

1. One of the grounds of the motion for a new trial is that the verdict is contrary to the evidence. Learned counsel for the appellant contend that the above facts do not constitute any substantial testimony to justify the verdict. Counsel argue that there was no evidence to show that the two State’s witnesses were not normal men, and, if so, it was impossible for them to have been drunk after eight or nine o ’clock that night on a pint of liquor which they had bought and drunk between three and four o’clock that afternoon. Counsel appeal to the “knowledge of the common experience of mankind,” as possessed by the judges of this court, to uphold their argument that the testimony of the State’s witnesses to the above purport is “unworthy of belief, is mythical, and is not substantial testimony on which to base a verdict. ’ ’

The .judges of this court have no “knowledge of the common experience of mankind,” as-to whether or not it is impossible or even improbable that a pint of liquor, especially “bootleg liquor,” drunk by two men between three and- four o ’clock in the afternoon, would produce in them a state of intoxication or drunkenness which ■would continue until eight or nine o’clock that night. If this be a subject which expert testimony could make clear in the defense of the appellant, no su'ch testimony was adduced. If such be a physiological fact of science, it might be established by experts having special knowledge of that subject, but it is a matter of which the court could not judicially know. In the absence of testimony to the contrary, the jury was fully warranted in believing the testimony of the witnesses for the State. This is a matter wholly within the province of the jnry, as the sole judges of the credibihdy of the witnesses and the weight to be given their testimony.

2. Counsel for the appellant insist that the court erred in refusing to grant appellant’s prayers for instructions numbered 3, 4, and 5. These, in effect, would have told the jury that the defendant could not be convicted upon suspicion, however strong such suspicion might be; that the defendant was entitled to the presumption of innocence,- which was not a mere form, but an essential and substantial part of the law, binding upon the jury, and entitled the defendant to an acquittal, unless the State, which had the burden of proof, established by evidence that the defendant was guilty of the crime as charged beyond a reasonable doubt.' These instructions contained- correct- propositions oflaw which have been over and over again announced by this court. But, while announcing in a general way the correct principles of law, they were couched in language more or less argumentative in form, and they were fully covered .by instructions numbered 4 and 5, which the court gave, as follows:

"4. The jury are .instructed that the indictment is not evidence of the defendant’s guilt; that the defendant is presumed innocent and noi guilty, as charged in the indictment, and that this presumption follows him throughout the trial, until the jury are constrained to find him guilty, from the evidence in the case, beyond a reasonable doubt; that the burden is upon the State' to prove the defendant guilty beyond a reasonable doubt.
‘ 5. The jury are instructed that a reasonable doubt is that state of mind which, after a full consideration and comparison of all the evidence, leaves the minds of the jury in that condition that they cannot say they feel an abiding conviction, amounting to a moral certainty, of the guilt of the defendant. But a reasonable doubt is not a mere captious, possible or imaginary doubt, but is such a doubt as a reasonable man would have in,matters of gravest concern to himself, and it must arise out of the evidence in the case.”

The above instructions given by the court were correct in form, and gave 'the defendant the benefit of the presumption of innocence, and of any reasonable doubt the jury might have of the defendant’s guilt, from the evidence in the case, expressed in language which is wholly unobjectionable and in substantial conformity with many previous decisions of this court. They also correctly declared that the burden was upon the State to prove the defendant guilty beyond a reasonable doubt.

The court also gave the following instruction:

”3. The jury are instructed that you are the exclusive judge of the evidence and of the credibility of the witnesses and the weight to be given to their testimony. If you believe any witness has willfully sworn falsely to any part of his testimony, you may consider such part of his testimony as yon believe to be true and disregard such parts as you do not believe to be true. And in considering the weight that should be given to the testimony of any witness, you may take into consideration his manner of testifying, his intelligence, his means of knowing the facts to which he testifies, his interest, if any, in the prosecution or defense, the reasonableness or unreasonableness of his testimony, and also whether he is contradicted or corroborated by other facts proved in the case.”

A general objection was urged to the above instruction in the court below, and a special objection is insisted upon here to the concluding words of the instruction, as follows, “and also whether he is contradicted or corroborated by other facts proved in the case.” The instruction was general in terms, and applied to the testimony of any witness in the case. It did not single out the defendant and malee the language complained of apply only to him. It is a sound principle of law to say that the jury, in weighing the evidence and passing on the credibility of witnesses, may consider whether the testimony of any witness is contradicted or corroborated, as the case may be, by other proven facts in the case. The jury should not be deprived of any proper rule or standard that may enable them to determine whether or not the testimony of any witness is credible, for this is a subject within their exclusive province.

There are no errors in the rulings of the trial court, and its judgment is therefore affirmed.


author: Humphreys, J.

text:
    Pink v. State.
    Opinion delivered November 14, 1927.
    1. Criminal law — argument of prosecuting attorney. — In a prosecution for manufacturing- intoxicating liquor, the statement in the prosecuting attorney’s closing argument that the fact that beer was found in accused’s home showed that he either manufactured it, or was interested in its manufacture, held not error, being a legitimate inference from the testimony.
    2. Criminal law — argument of prosecuting attorney. — In a prosecution for manufacturing intoxicating liquors, where the attorney for the defendant had argued that defendant should not be convicted because he would be taken away from his little twelve-year-old girl, it was legitimate for the prosecuting attorney to reply that it would be better for the girl if accused were convicted, for it would take her out. of the influence of, and away from, the immorality in which she was participating.
    S. Intoxicating liquors — sufficiency of evidence. — Evidence held to sustain a conviction for manufacturing intoxicating liquors.
    Appeal from Sebastian Circuit Court, Greenwood District; J. Sam Wood, Judge;
    affirmed.

      II. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Sebastian County, Greenwood District, for'manufacturing intoxicating liquor, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary.

The testimony introduced by the State showed that appellant’s home, in said district and county, was searched by the sheriff of the county and one of his deputies, under authority of a search warrant, and that, although appellant denied having chock beer in the house, they discovered, under a loose plank of the floor in one of the rooms,'a sixteen-gallon keg, partially buried, which contained a quantity of chock beer, and five full jars and a dozen or more jars partly full of the stuff. There was a dipper and a strainer in the keg with which to dip the beer off. Appellant admitted, after the discovery of the chock beer, that he made it out of certain ingredients in the house, and an analysis of the beer by the chemist disclosed that the beer contained six per cent alcohol by volume. Appellant and his little daughter, twelve years of age, resided in their home. A man by the name of Disbaugh stayed around the house a part of the time, but disappeared a few days before the search was made.

The first ground in appellant’s motion for a new trial is that the court permitted'the prosecuting attorney to state, in his closing argument, that the fact that the beer was found in appellant’s house showed that he either manufactured it or was interested in the manufacture thereof. We think this a legitimate inference from the testimony, which the prosecuting attorney had a right to draw and argue. It is perfectly proper for a prosecuting attorney to draw legitimate inferences from the testimony and urge them as reasons for a conviction.

The second ground in appellant’s motion for a new trial is that the trial court permitted the prosecuting attorney to state that it would be better-for his little girl if he were convicted, for it would take her out of the influence of and away from the immorality in which she was participating. This argument was made by the prosecuting attorney in his closing -speech, in response to an argument made by appellant’s attorney to the effect that he should not be convicted, for he would be taken away from his little girl. If it was error for the prosecuting attorney" to make this argument, it was invited by appellant’s own attorneys, and he cannot complain. Davis v. State, 150 Ark. 500, 234 S. W. 482; Seaton v. State, 151 Ark. 240, 235 S. W. 794.

The third, fourth and fifth grounds for appellant’s motion for a new trial are that the verdict is contrary to the law and the evidence. The testimony' is legally sufficient to support the verdict, and the law applicable to the facts was correctly declared byr the court."

No error appearing, the judgment is affirmed.


text:
    Hall v. Magruder
    Opinion delivered November 14, 1927.
    Trial — instruction ignoring claim op recoupment. — Where defendant was sued on a note given for the purchase price of an oil and gas agency, and defended on the ground of fraud, an instruction that, if defendant made a part payment on the note after knowledge of the fraud, the finding should be for plaintiff, was erroneous as ignoring the defendant’s right to affirm and claim damages by way of recoupment.

      Appeal from Randolph Circuit Court; John C. Asking, Judge;
    reversed.

      Walter L. Pope and John L. Bledsoe, for appellant.

      George M. Booth, E. Newton Ellis and Schoonover é Schoonover, for appellee.
   Humphreys, J.

Appellee brought this suit against appellants in the circuit court of Randolph County for a balance of $1,765 and interest alleged to be due upon a note executed by them to her on February 9, 1924.

Appellants filed an answer to the complaint, admitting the execution of the note in part payment for an agency to sell gas and oil products for the Pierce Petroleum Corporation, but denying additional liability thereon, upon the ground that she procured the note from them through the following- fraudulent misrepresentations: (1) That she had an agency with the Pierce Petroleum Corporation to sell its oil and gas in certain territory in Randolph and Clay counties, in this State. (2) That she earned commissions on the sale of s'aid products in the sum of $500 per month. (3) That she had no overhead expenses. (4) That the corporation paid the freight on said products shipped to the agents.

The cause was submitted on the pleadings, the testimony adduced at the trial, and the instructions of the court, Avhich resulted in a verdict and consequent judgment against appellants for $2,131.90, from which is this appeal.

Appellee had been the agent at Pocahontas for a number of years for the Pierce Petroleum Corporation and had built up a gas and oil business. As compensation she received a commission upon her sales. Several parties Avanted to purchase her agency, among them appellant, Kern L. Hall. He agreed to pay her $2,000 if she would procure the agency for him. Pursuant to the agreement they came to Little Rock, and she resigned and he Avas appointed, receiving a contract from the corporation like the one she had. He paid her $135 and, when they returned to. Pocahontas, he executed a note for $1,865 covering the balance of the purchase money for the agency, which was signed by his mother, Mrs. Flora A. Hall, as surety. The note', was due twelve months after date. He was then checked in as its agent by the corporation, and operated the agency until October 23, 1925, at which time he was discharged as a result of a disagreement. In April, 1924, after operating the agency over two months, he voluntarily paid $100 on the note. The testimony responsive to the issue of fraud in the procurement of the note was conflicting. In submitting the issue of fraud to the jury the court also gave the following instruction, over the objection and exception of appellants:

“If you find at the time, or prior to the time, the $100 payment was made on the note by defendant, that said defendant, Kern L. Hall; knew, or should have known, of the alleged fraud practiced upon him, such $300 payment would amount to a ratification of the contract, and you should find for the plaintiff.”

Appellants insist that this instruction was inherently wrong, because it ignored their right to affirm the contract and claim damages by way of recoupment when sued for the purchase price of the agency. This was an established agency, and, although appellee had no express authority to assign her written contract, the corporation recognized her right to choose her successor, by and with its consent. The method adopted was by resignation and appointment of the party she selected and recommended. ■ Under these circumstances we think the transfer and sale of the agency analogous to the sale of property. • In sales of property the rule is that the defrauded party can affirm the contract and, when-sued for the purchase money, may recoup by way of damages. Kirby v. Young, 145 Ark. 507, 224 S. W. 970, 228 S. W. 53; Ives v. Anderson Engine & Foundry Company, 173 Ark. 112, 292 S. W. 111. Under this rule it was error for the court to give instruction No. 2. The case should have been sent to the jury upon the issue of fraud alone.

On account of the error in giving said instruction the judgment is reversed, and the cause is remanded for a new trial.


text:
    Federal Land Bank of St. Louis v. Wright.
    Opinion delivered November 14, 1927.
    Attachment — evidence of fraud. — Evidence that defendant was insolvent, and that he was endeavoring to sell the lumber attached for the purpose of delaying and hindering his creditors, warranted an attachment, and therefore the court erred in dissolving the attachment and allowing defendant damages therefor.
    Appeal from Little Elver Chancery Court; G. E. Johnson, Chancellor;
    reversed.

      J. R. Groclcer and Shaver, Shaver & Williams, for appellant.

      J. D. DuLaney, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of Little River County by appellant to recover a judgment upon a note executed by appellee, John P. Wright, and indorsed by the Little River National Farm Loan Association of Ashdown, and to foreclose a mortgage executed by Wright and his wife upon 628 acres of land in said county to secure same. In addition to setting out the note and mortgage and alleging the breaches thereof, entitling appellant to a judgment for the balance due upon said note and a decree of foreclosure and order of sale of the land to apply upon the judgment, it was alleged that, by reason of Wright’s failure to pay' the State, county and road improvement district taxes for a number of yeárs, the value of the mortgaged lands had decreased until not worth exceeding $1,500, leaving a large deficit between the indebtedness due and the value of the lands, and that appellee, John P. Wright, owned several cars of lumber located on the Frisco Railroad tracks at Foreman, Arkansas, which he was about to sell, convey or otherwise dispose of by shipping the same without the State of Arkansas, with the fraudulent intent to cheat, hinder or delay his creditors in the collection of their debts, and, being insolvent, appellant was entitled to an attachment against the lumber for the amount of the indebtedness in excess of the.value of the lands. An attachment was issued and levied upon said lumber. A motion was made by appellee, Wright, to dissolve the attachment, which the court overruled, over his objection and exception.

Appellee, Wright, controverted the alleged ground of attachment in his answer.

Upon a hearing of the whole case the court found that, on the date of the rendition of the decree, November 30, 2926, the amount due upon the note, including interest, was $2,757.50; that the mortgaged lands were not worth the amount of the mortgage debt, taxes and assessments lawfully charged against them; that, at the time the complaint was filed, appellant caused an attachment to be issued and levied upon said lumber; that the attachment was wrongfully obtained, and ought to be dissolved; and that, for the wrongful issuance and levy of the attachment, said appellee should have judgment as an offset against the debt as damages for the depre ciation and difference in the value of said lumber from the date of the levy, which ivas on the 20th day of October, 1926, until the date of the rendition of the judgment, which was on November 30, 1926, in the sum of $1,714.50. Based upon the aforesaid findings, the court dissolved the attachment and allowed Wright the amount of damages aforesaid as a credit on the note, and rendered a judgment against him and his surety for $1,043 principal and interest, and a decree of foreclosure of the mortgage lien upon the lands, and an order of sale thereof to satisfy said judgment.

An appeal has been duly prosecuted from that part of the decree dissolving the attachment and allowing Wright an offset of $1,714.50 for damages on account of the levy of the wait of attachment. Appellee, Wright, ■ owned 1,568 acres of land in Arkansas. He mortgaged 628 acres of it to appellant to secure the note and mortgage made the basis of this suit and 220 acres to secure a $2,000 loan to it. He mortgaged 235 acres to the Murray '(tin Oompanv for $5.657, After making these mort-' gages he allowed all his lands, including.those not mart-. gaged, to forfeit to the State for taxes, "and the road improvement taxes to accumulate against them. When this «nit was instituted it would have required $283.91 to redeem the 628-acre tract, sought to be foreclosed, from the State, and $1,983.34 to redeem said tract from the nonpayment of the road taxes. It would likewise have required a large amount to redeem'his other lands from the tax forfeitures. Prior to the institution of this suit, several judgments had been obtained against Wright,- and he had quite a number of debts which were past due, including the debt to appellant, which had fallen due by reason of breaches committed by appellant under the terms of the mortgage. He refused to pay the mortgage indebtedness or to redeem the mortgaged lands from the tax forfeiture. In conversation with the attorney representing appellant, just prior to the institution of this suit, he said that he had sold the lumber at Foreman, consisting of 140,000 feet, for $1,600, and would pay $1,000 of the amount on appellant’s note, but later, and prior to the institution of the suit, he withdrew the promise and refused to pay any part of the proceeds from the lumber on appellant’s debt. Almost all of his lands were wild. A small portion of the acreage on the 628-acre tract was in cultivation and had a small house upon it. It is reflected by the weight of the evidence that the land was worth four or five dollars an aere, and that it would cost almost the entire value of the lands to redeem them from the tax forfeitures, leaving only a small margin in value to apply upon the mortgage indebtedness. Wright had built a cotton gin upon the land he mortgaged to the gin company, at a cost of $13,000, which proved to be a losing proposition. They only ginned forty hales of cotton during the season of 1926. We think it apparent that there was no equity in that property, and that it would not have sold for enough to pay the mortgage thereon. Wright’s other property consisted of log-wagons of the value of $300, 14 head of horses and mules of the value of $980, harness of the value of $150, a sawmill of the value of $750, merchandise of the value of $2,000, and outstanding- accounts amounting to $.1,500, a small amount of hay and corn, and thirty head of cattle upon which there was a mortgage to the State Bank Commissioner.

At the time of the institution of the suit the clerk’s record showed that judgments had been rendered against Wright in favor of the Procter-Gamble Distributing Company for $'255.24, Van Yleet-Miansfield Drug Company for $211.73, Citizens’ Bank of Foreman for $1,042, and Loid Rainwater, State Bank Commissioner, for $250.38. He also owed appellant about $3,000, for which this suit was brought, and which had become due on account of his failure to make payments provided for in the mortgage; and $2,000 to appellant on a note and mortgage secured by 220 acres of land, and $5,657, $2,800 of which amount was past due, to the Murray Gin Company, which was secured by a mortgage on 235 acres; $283.91 was necessary to redeem the 628-acre tract of land from the State, $1,983.34 to redeem the lands from the nonpayment of the yoad improvement district taxes, and large amounts necessary to redeem the other lands from the State, and various amounts due other creditors, totaling, perhaps, as much as $2,000.

We are convinced, after a careful reading and analysis of the testimony, at the time of the issuance and levy of the attachment John P. Wright was insolvent in the sense that he was unable to pay his debts, and that his purpose in selling and attempting to ship the lumber which was afterwards attached in this action was to at least delay and hinder his creditors. It is quite apparent that there will be a deficiency judgment when the 628-acre tract of land is sold under the foreclosure decree, and also apparent that it will take about all his other lands are worth to redeem them from the tax assessments and forfeitures. _ The attachment should have been sustained, and judgment should have been rendered againsl John P. Wright and his surety for the full amount due upon the note. - The trial court erred in dissolving the attachment and in rendering judgment against John P. Wright and his surety for only $1,043 and in awarding $1,714.50 for damages on account of the levy of the attachment. His cross-complaint for damages should have been dismissed.

The judgment and decree are reversed, and the cause is remanded with directions to proceed in accordance with this opinion.


author: Kirby, J.

text:
    Carnahan v. Fayetteville.
    Opinion delivered November 14, 1927.
    1. Municipal corporations — disconnected improvements. — The statute providing for sewer districts contemplates the organization of districts to construct the improvements which constitute a single project, so that wholly disconnected improvements cannot be joined in one district.
    2. Municipal corporations — council’s determination as to singleness op project. — In the organization of sewer districts, the determination of the city council as to the singleness of the project, as well as its selection of property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake.
    3. Municipal corporations — determination as to singleness of project. — The action of the city council in determining that the sewer improvement constituted a single project, and in selecting the property to be benefited, will not be disturbed in the absence of fraud or demonstrable mistake, notwithstanding the fact that two tracts of land separated by a 40-acre tract were included in the project.
    4. Municipal corporations — assessment op sewer district. — An assessment of benefits in an annex to a sewer district cannot be attacked as exceeding in proportion those authorized by law and levied in the original sewer district where the proceeding was begun after expiration of the time for questioning such attachment, since it amounts to collateral attack, which cannot be maintained, unless the assessment is void on the face of the pro-i ceedings.
    Appeal from. Washington Chancery Court; Lee Seamster, Chancellor;
    affirmed.

      W. L Whitty, for appellant.

      Geo. A. Hurst, for appellee.
   Kirby, J.

■ This suit by the taxpayers, residents in the annex to the original sewer district to the city of Fayetteville, challenges the validity of said annex, claiming it is, in effect, two separate improvements, because of the inclusion of two entirely separate and distinct tracts of land in one improvement and because of the excessive assessment of benefits in the annex, exceeding in proportion those authorized in the original sewer district. It is conceded that the district otherwise was duly organized and the assessment of benefits legally made.

It appears that the original Sewer District No. 1 of the city of Fayetteville included the entire area of the city at that time, and was organized in 1906, and the improvements had long since been completed before the organization of this annex. That the territory in the annex No. 1 to said sewer district includes two eig'htyacre tracts of land adjoining the north line of the orig-’ inal sewer district, which have been divided into lots and blocks, both being within the city limits, but which tracts are separated by a forty-acre tract of land between them, also adjoining the north line of the sewer distinct, but outside the city limits.

• The. testimony shows that the improvement was constructed and completed before the institution of this suit, the sewer mains in the eastern tract being built down into and connecting with the main in the original district, the sevyage being carried through the. old district, through its mains, into the mains in the western tract of the annex and on into the. septic tank constructed for the original district.

. It is true our statutes contemplate the organization of districts to construct improvements which constitute single projects, and wholly disconnected improvements cannot be joined together in one district, as said in Cooper v. Hogan, 163 Ark. 312, 260 S. W. 25. It was- also said there:

“However, this court laid down the rule, many years ago, that 'the action of a city council in including property in an improvement district is, except when attacked for fraud or demonstrable mistake, conclusive of the fact that such property is “adjoining the locality to be affected” by the improvement, Avithin the meaning of the Oonstitxition’.” Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198. “This rule necessarily implies that the determination of the city council as to the singleness and unity of the project, as Avell as the selection of the property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake.”

It cannot be said here that this improvement Avas more than a single project, nor that the property Avithin either tract of the annexed territory Avas not benefited by such improvement, notwithstanding the fact that the two tracts of land Avere separated by the forty-acre tract between them. The purpose, evidently, in malring an annex to the district was to benefit the said property by connecting it xvith the mains of the old district and furnishing a complete sewerage system to the entire property included, and the city council having determined the singleness and unity of the project, as also the selection of the property to be benefited thereby, its action is conclusive. Cooper v. Hogan, supra, and cases cited.

It is next urged that the district annex is invalid because the assessment of benefits in the territory annexed is illegal, exceeding in proportion those authorized by law and levied in the original seAver district.

In Pledger v. Soltz, 169 Ark. 1125, 278 S. W. 50, this court construed the statute relating to this question, saying’: _ _ _

_ _ _ “While it is unnecessary for the petition for annexalion to specify the limitation upon the cost, we interpret Ihe statute itself to mean that the cost of the additional improA’-ement shall be limited to the proportionate cost of the original improxmment. This limitation is expressed in the statute itself, and need not be expressed in the petition of. the property OAvners. The statute (0. & M. Dig., § 5733) provides that the assessments on the annexed territory shall be made ‘on the same basis as if said territory was included in the original district.’ This means that the proportionate cost shall be the same 'as in the original district; that is to say, the cost of improvements shall be in the same proportion to the assessed valuation as the cost of the improvement in the original district is to the assessed valuation of the property in that district. Otherwise the assessments on the annexed territory would not be ‘ on the same basis as if said territory was included in the original district’. * * * It becomes the duty of the commissioners, under the law, to ascertain the proportionate cost of the original improvement and to limit the cost of the new improvement to the same proportion, not exceeding the same proportion to the county assessment of the property in the annexed territory for the year next preceding the formation of the original district. * * All that the annexation statute requires is that the new assessment of benefits on the added territory must be made on the same basis as the assessments in the original territory, and this is fully accomplished by limiting the cost of the new improvement in the same proportion to the assessed value of the new territory to be added, the same as the proportionate cost of the original improvement to the property in the original district.”

In Little Rock v. Boullioun, the latest expression of this court of the subject, it was said:'

“This court decided in Pledger v. Soltz, 169 Ark. 1125, 278 S. W. 50, that the percentage of the cost of the added improvement must be the same as that of the original district, otherwise the assessments would not be on the same basis as required by the.statute. Now, it is seen that this statute governing annexation, as interpreted by the court in the case just referred to, limits the maximum cost of the improvement, and of course that limit cannot be exceeded.” Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745.

This proceeding was begun long after the expiration of the 'time allowed by law for questioning the reasonableness and legality of the assessment of benefits, the maximum cost of the improvement considered, and amounts to a collateral attack upon such assessments, which cannot be maintained unless it is shown to be void on the face of the proceedings, which has not been done. Bd. of Imp. v. Pollard, 98 Ark. 543, 136 S. W. 957; Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168, 213 S. W. 773; Taylor v. Bd. of Commrs., 156 Ark. 226, 245 S. W. 491. The complainants not only waited until after the expiration of the time allowed by law for attacking-the assessment of benefit's directly, but for more than a year thereafter, and until after the sale of the bonds and the completion of the improvement, and, having done so, they are now without standing in a court of equity to attack its validity or to demand the relief prayed.

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


author: Mehaeey, J.

text:
    Tuck v. Cotton.
    Opinion delivered November 14, 1927.
    1. Elections — interference with political organization. — In the absence of any statute giving- them jurisdiction, courts have no power to interfere with the judgments of the committees and tribunal's of established political parties in matters involving party government and discipline, or to entertain the contests for party offices.
    2. Elections — contest between party committeemen for nomination. — Under the statute regulating primary elections, the courts are without jurisdiction to hear and determine the contest for the nomination of central committeemen, as the committeeman or delegate is not a candidate for office, except for office within the party, and the rules of political organizations are not abrogated as to them by § 3778, Crawford & Moses’ Dig.
    3. Elections — party jurisdiction of contest for committeemen as delegates. — Crawford & Moses’ Dig., § 3778, providing that the laws and rules of political organizations holding primary elections shall be of no further force and effect, has reference to contests by candidates for public office, but has no reference to contests for committeemen or delegates, which leaves the control of these matters entirely within the political party.
    4. Elections — party contests. — Though the Legislature has authority to give the courts jurisdiction in matters of contests • under the primary election law, the courts will not assume jurisdiction of contests for the offices of committeemen or -delegates of a political party, unless it is clear that the Legislature intended to give them such authority, but will leave the matters to be determined by the political parties.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    reversed.

      Bevens é Mundt and Pace & Davis, for appellant.
   Mehaeey, J.

This suit was brought by the appellee, Cotton, in the Phillips Circuit Court to contest the certification of the nomination of the appellant, Tuck, as a central committeeman from the First Ward of West Helena, Phillips County, Arkansas. It was alleged that the contestant received 74 votes and the contestee 66 votes in said ward, but that the contestee, although receiving onty 66 votes as against 74, had been certified as the committeeman from this ward.

It is first contended that the court had no jurisdiction, because it is argued that the committeemen are not public officers, and that 'the law gives candidates for public office ¡alone the right to contest. It is argued that political parties are voluntary associations, and the voters may organize them at will. It is also .contended that it would be impossible for the Legislature to compel the organization of a political party.

“In the ¡absence of any statute giving them jurisdiction, the courts have no power to interfere with the judgments of the committees and tribunals of established political parties in matters involving party government and discipline. It is much more proper that questions which relate to the regularity of conventions or nomination of candidates and the constitution of committees should be determined b}r the regularly constituted party 'authorities than to have every question relating to a caucus, convention, or nomination determined by the courts, and thus, in effect, compel them to make party nominations 'and regulate the details of party procedure instead of having them controlled by party authorities.” 35 Cyc. 330.

In the absence of statute the courts would have no authority-to interfere in any rvay with political organizations, nor with party matters, and would have no authority to entertain a contest for office. .

The question to determine here is whether, under the primary election law, the courts are given authority to he'ar and determine a contest for the nomination of a central committeeman. The authorities construing primary election laws are not in harmony, and that is true partly because of the difference in the statutes or primary election laws of the different States.

Our statute provides: “Whenever any political party in this State shall, by primary election, nominate any person to become a candidate at any general election, regular or special, or for United States Senator, or for Congress, or any legislative, judicial, State, district, county, township or municipal office, the said primary election shall be, and is hereby, made a legal election.” Section 3754, C. & M. Dig. Then follow the directions with reference to the oath, and § 3757 provides: “All organized political" parties selecting their candidates for office through primary elections shall be. subject to the provisions of this act, except in case of vacancies, as hereinafter provided, and each party shall pay the expense of its own primary election, except as herein otherwise provided, and all primary elections for the nomination of county, district and State officers shall be held on the same day. Provided, however, nominations by petition of electors may continue to be made as provided in § 3746.”

It will be observed, from the first section of the statute quoted, that political parties may or may not, nominate candidates by primary election. If they nominate by primary election, said election is made a legal election, and, in conducting this election, the provisions of law with reference to the same must be complied with, and § 3759 provides, among other things: “There shall be chosen at each primary election delegates to the comity convention, and the members of the county central committee to which each election precinct or city ward is entitled, and it shall be the duty of the county central committee to place on the primary ballot the names of all persons nominated for delegates -and committeemen. ’ ’

Prior to this enactment it was the custom of political parties to fix some hour of election day at which time the electors in the precinct or ward were notified to meet and select delegates to the county conventions and central committeemen. Since the enactment of this law, instead of meeting at some hour of the day in a mass meeting, they print the mames of the candidates for delegates to the convention and committeemen on the ballot and vote for them when they vote for candidates for office'. We know of no other reason for the contention that the courts have jurisdiction of election contests than this provision requiring the names of delegates and committeemen to be placed on the ballot.

The section providing for contests reads as follows:

“A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The ¡action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred; and if for United States Senator or a State office, in the Pulaski Circuit Court.” Section 3772, C. & M. Digest.

This is the only section providing for a contest, and it does not mention either delegates to the convention or committeemen, and, if the Legislature had intended that the courts should hear contests of delegates and committeemen, we think they would have said so in plain language, so there could have been no dispute about it. Since they did not do that, it is our opinion that they intended to leave these matters, that is, contests for committeemen and delegates, within the jurisdiction of the party itself. It is true that § 3778, C. & M. Digest, provides that “all laws or rules of political organizations holding primary elections providing for contest before political conventions or committees, other than the proceedings herein provided, shall be of no further force or effect.” We think this statute has reference to the contests by candidates for office — those mentioned in the section quoted above — and h'as no reference to contests for committeemen or delegates, but leaves the control of .these matters entirely with the political party.

The Legislature has the authority to give the courts jurisdiction in these matters, but, unless it is clear that the Legislature intended to do this, the courts will not assume jurisdiction, but will leave these matters to be determined by the political parties, just as they were before the enactment of the primary election law. The law does not seek to interfere with the management of party affairs by the central committees or conventions, nor to control them in any way, the purpose of the statute being to secure and protect the rights of the voters, and it was not intended to in any way control or interfere with the action of political parties or with matters that 'are entirely political in their nature.

The Idaho Supreme Court, in discussing the primary election law, said: £tA primary election, within the meaning of this act, is an election held in any county, city, town or precinct in the State of Idaho, by any political party, for the purpose of selecting delegates to political conventions, and the provisions hereof shall apply only to general State and county and general city or town elections. This section clearly indicates the intention of the Legislature to provide for primary elections at which delegates shall be selected to political conventions. The political conventions contemplated evidently were the political conventions designated and recognized by the general election laws of 1899.” Walling v. Lansdon, 15 Idaho 282, 97 P. 396.

The above court has held that the committeemen are not public officers.

££A candidate for nomination has no inherent right to contest his opponent’s nomination at a primary election. Consequently, unless, he is given the right by party rules, or unless a statute makes provision therefor, the election cannot be contested, and, if the Legislature confers the right of contest, it may impose such terms ancl conditions on the exercise thereof as it sees fit. Unless made applicable either expressly or by implication, constitutional and statutory provisions relating to election contests generally do not apply to the contest of primaiy elections, although the contrary has been held.” 20 C. J. 119.
"Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers. As elections belong to the political branch of the Government, the courts will not be astute in seeking to find ground for interference, but will seek rather to maintain the integrity and independence of the several departments of the Government by leaving questions as to p'arty polic3T, the regularity of conventions, the nomination of candidates, and the constitution; powers, and proceedings of committees, to be determined by the tribunals of the parly. Thus, the action of a State convention in deciding between two contesting delegations and the regularity of the State or district conventions or other meeting at which tho3T were selected, is regarded as conclusive.” 20 C. J. 137 et seq.

As we have already said, our statute provides for contests for candidates for office. A committeeman or delegate is not a candidate for office, except office within the party, and it is not a primaiy election as to them, but it is an election to committeeman or delegate of the party.

After discussing the primary election laws and the reason for their enactment, ancl rights of the parties and jurisdiction of the courts, in Buling Case Law, it is said:

“It must- not, however, be concluded, from what is said in the preceding paragraph, that party officers become public officers by reason of the fact that they are elected at a statutory primary election; for the duties of a public office are in their nature public, that is, they involve in their performance the exercise of some portion of the sovereign power, whether great or small, in the performance of which all citizens, irrespective of party, are interested, either as members of the entire body politic or of some duly established division of it. Manifestly, membership in a political committee belonging to one party or another does not come, within the above description of wli-at constitutes public office, and the fact that the Legislature undertakes by statute to regulate the election and conduct of political committees does not make the office a public one. The members thereof contimie to be, as before, officers of the party which elects them, and their duties are confined to matters pertaining to the party to which they belong and which alone is interested in tlieir proper performance. It therefore follows that quo icarranfo is not a proper proceeding by which to try the title to such an office. Nor does a statute requiring the filing of a statement by a candidate for public office of expenses incurred and money expended in securing his election, before he shall be deemed elected to any office, apply to party committeemen.” 9 R. C. L. 1088.

We think it clear that our statute only intended to provide a means of contest for officers, and not for committeemen and delegates to county conventions. If the Legislature should see fit to give courts jurisdiction to try contests for committeemen and delegates, it would have the authority to do so, and, when that i;s done, the courts would hear and determine these questions. Many authorities hold that the Legislature has the power to enact laws providing for primary elections and giving courts jurisdiction to hear and determine contests, but the lawmaking power in this State has given the courts jurisdiction to try contests, hut names the particular officers, and wo tliink that it is thereby meant that those that are not included — delegates and committeemen— are to resort to the party organizations and committees if they desire to contest, and not to the courts.

■ In the case of Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C 980, this court (quoting from the Nebraska court) said:

“It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for .judicial tribunals, for the court to undertake, in any ease, to investigate either the government, usages or doctrine of political parties, and to exclude from the official ballot the names of candidates placed in nomination by an organization which a portion, or, perhaps, a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government. We doubt even whether the Legislature has the power to confer upon the court any such authority. ’ ’

Our conclusion is that the circuit courts have jurisdiction to hear and determine contests for the offices mentioned in § 3772 of Crawford & Moses’ Digest, and that the court ha's no jurisdiction, under our statute, to hear and determine a contest for committeeman or delegate. The party rules are of no further force and effect as to contests for the offices mentioned in § 3772, but they are still in effect as to committeemen and delegates.

Since we hold that the court has no jurisdiction to try this case, it becomes unnecessary to determine the other question raised 'and discussed by appellant.

The judgment of the circuit court is therefore reversed, and the case dismissed.


author: Hart, C. J.

text:
    Merchants’ & Planters’ Bank v. Citizens’ Bank of Grady.
    Opinion delivered November 21, 1927.
    1. Mortgages — limitation of actions. — Where a debt secured by a mortgage is apparently barred by limitation, and no payment is indorsed on the margin of the record, it constitutes no lien upon the mortgaged property as against a third party.
    2. Estoppel — principle of equitable estoppel. — When a man has deliberately done an act or said a thing, and another who had a right to do so has relied on such act or word, and will be injured if the former can repudiate the act or recall the word, he will not be permitted to do so.
    3. Mortgages — when junior mortgagee estopped. — Where a first mortgagee and a second mortgagee agreed to extend their mortgages with the understanding that the first mortgage had priority, the second mortgagee was estopped thereafter to assert that, its mortgage had secured priority on the ground that the first mortgage had on the record apparently become barred by limitation, since the first mortgagee might have foreclosed its mortgage or have caused the mortgagor to make a small payment and indorsed it on the margin of the record, thereby preserving priority of its mortgage.
    4. Mortgages — parol agreement as to priority. — A parol agreement between a first mortgagee and a second mortgagee that their mortgages should be extended, made with the understanding that the first mortgage had priority, held valid, precluding the assertion by the second mortgagee that its mortgage secured priority, under Crawford & Moses’ Dig., § 7382.
    Appeal from Lincoln Chancery Court; II. R. Lucas; Chanieellor;
    affirmed.

      Bridges é McGaughey, for appellant.

      A. J. Johnson, for appellee.
   Hart, C. J.

Appellant and appellee each sought to foreclose a mortgage on the same land, and this appeal only involves the question of priority of liens.

Appellant first seeks a reversal of the decree holding that appellee had a prior lien on the land, on the ground that appellee’s mortgage is barred because there was no compliance by it with the provisions of § 5399 of Kirby’s Digest, now § 7382 of Crawford & Moses’ Digest. In construing this statute, in Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, 124 Am. St. Rep. 78, the court said:

“The effect of that statute, as to strangers to the transaction, is that, when the debt secured by a mortgage is apparently barred by limitation, and no payment which would stay the limitation is indorsed on the margin of the record of the mortgage, it becomes, as to third parties, an unrecorded mortgage; and, like an unrecorded mortgage, it constitutes no- lien upon the mortgaged property, as against such third party, notwithstanding he has actual knowledge of the execution of such mortgage.”

The record shows that the section was not complied with, and appellant would be entitled to a reversal of the decree, unless it is barred of relief on the ground of equitable estoppel under the facts presented by the record. On the part of appellee it is sought to uphold the decree on the ground that appellant recognized that appellee’s mortgage was a paramount lien on the land, and induced appellee to renew its mortgage with the understanding that it had a prior lien.

The principle of equitable estoppel was recognized at an early day by this court, and has been followed ever since, being applied according to1 the varying’ facts of each particular case. In Trapnall v. Burton, 24 Ark. 371, in a learned opinion prepared by Albert Pike, the court said:

“A man is estopped when he has done some act which the policy of the law, or good faith, will not permit him to gainsay or deny; and when the principle of estoppel is understood, and unwise legislation or decision does not push the doctrine beyond reasonable limits, it is one of the wisest and most just and rig’hteous doctrines of the law.' The whole principle of equitable estoppel is that, when a man has deliberately done an act or said a thing, and another person, who had a right to do so, has relied on that act or word, and shaped his conduct accordingly, and will be injured if the former can repudiate thé act or recall the word, it shall not he done; but, of whatever things the act was evidence, in the nature of things, and on ordinary principles, it shall be taken to be conclusive evidence; and what was said, the party shall not deny to have been true.”

Among the later decisions of this court adhering to the rule, we cite the following: Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51; Ferguson v. Guidon, 148 Ark. 295, 230 S. W. 260; Pettit-Galloway Co. v. Womack, 167 Ark. 356, 268 S.W. 353; Baker-Matthews Lumber Co. v. Bank of Levanto, 170 Ark. 1146, 282 S. W. 995; and we call attention to the case of Scott v. Orbison, 21 Ark. 202.

On this branch of the case the evidence is in direct and irreconcilable conflict. On the one hand, the cashier of the bank of appellee testified in unequivocal terms that appellee renewed its mortgage and took a new note for its debt and kept the old note, pursuant to an understanding between it and appellant that its mortgage ivas superior to that of appellant. Appellee first wrote to appellant that Hutchinson wanted to renew his mortgage, and that appellee wished to comply with his request if appellant would renew its mortgage. The letter from appellant to appellee in reply reads as follows:

“Dear sirs: Dr. Hutchinson was in this morning, and has arranged with us to extend his paper until fall. We are glad to accommodate him, and trust it will be agreeable for you to do the same. ’ ’

According to the testimony of the president of the bank of appellee, there was an agreement between Dr. Hutchinson, the cashier of the bank of appellant, and himself, that appellant would renew its mortgage if appellee would do likewise. It was recognized between the parties that appellee had a first mortgage on the land, and it is inferable from the testimony of this witness that the renewal of both mortgages was to the Advantage of all parties concerned and that there was no dispute between them at that time as to the priority of mortgages. Appellant expressly recognized that appellee had a prior mortgage, and the record reflects this to be the fiact at that time. Dr. Hutchinson corroborated in every respect the testimony of the president of the bank of appellee with regard to the renewal of the mortgages, except that he stated that his recollection was that the agreement for the renewal of the mortgagees was made with the president of the bank of appellant, instead of with the cashier, as testified to by the president of the bank of appellee. He expressly testified that appellant considered that it held a second mortgage on the land, and the renewal was made with that understanding between all the parties. At the .time Dr. Hutchinson gave his mortgage to appellant, he submitted to the president of the bank an abstract showing that appellee had a first-mortgage on the land, and the amount thereof.

On the part of appellant, the president of its bank testified that he wrote the mortgage for his bank, and that it was the custom to write in a mortgage that it was subject, to a prior mortgage if such was the case, and that he would have done so in this case if he had known that appellee had a prior mortgage. He denied in positive terms that there was an agreement or understanding between the parties that appellee had a prior mortgage at the time the renewal mortgage in question was executed. The cashier at the time of the original transaction of the bank of appellant and his successor were both witnesses for appellant. They denied that they had made any agreement with appellee in regard to the renewal of the mortgages. They admitted, however, that the transaction was had with the president of the bank of appellant.

After carefully considering the evidence and accompanying circumstances as shown by the record, we are of the opinion that the doctrine of equitable estoppel applies in this case, and that the chancellor was correct in so holding. There is no question but that appellee had a prior lien at the time the last renewals were had, and it might have foreclosed its mortgage, or have caused Dr. Hutchinson to make a small payment and have indorsed it on the margin of the record, if it had. not understood tliat appellant agreed to the renewals with the understanding that appellee had a prior mortgage. Thus it will be seen that appellee was induced to act to its disadvantage by its agreement with appellant, and it would be inequitable to allow appellant to take advantage of its own conduct and thereby defeat appellee in the assertion of a right that existed at the time the renewal agreements were made.

Then, too, the agreement between the parties at the time the renewal mortgiages were taken gives appellee the prior lien. In McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62, it was held that recitals in a mortgage that it is taken subject to all mortgages against it on record, amounts to a recognition by the mortgagee that such mortgages as were on record were prior valid liens on the land, and preclude the mortgagee.from pleading the statute of limitation. But it is insisted by counsel for appellant that this principle does not apply here, because the agreement, if made, was not written in the mortgage of appellant, and, being verbal only, the rule did not apply. On this point Judge Jones, in his treatise on mortgages, says that parties may, as between themselves, make a valid agreement, though it be verbal only, that one of two mortgages shall be prior to the other; and many cases from courts of last resort in various States are cited in support of the text. Jones on Mortgages, 7th ed. vol. 1, § 608.

The result of our views is that the decree of the chancery court was correct, and it will therefore be affirmed.


author: Hart, C. J.,

text:
    Jackson v. Frazier.
    Opinion delivered November 21, 1927.
    1. Quieting title — jurisdiction op equity. — Equity jurisdiction to quiet title, independent of statute, can be invoked only by a plaintiff in possession bolding the legal title.
    2. Ejectment — suit to quiet title. — An action by ejectment cannot be maintained under the guise of a suit in equity to quiet title, the party in possession having a constitutional right to a trial by jury.
    3. Quieting title — necessity op actual possession. — Possession in fact, as distinguished from constructive possession arising by virtue of legal title, is essential to proceedings in equity to quiet title.
    4. Quieting title — remedy where defendant is in possession. — ■ Where the defendant in a suit to quiet title is in actual possession of the disputed strip of land, the plaintiff had an adequate remedy at law by action in ejectment, and must be left to such reme.dy.
    Appeal from Sharp Chancery Court, Northern District; A. S. Irby, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    This is a suit to quiet title to land brought by Mattie Jackson in equity against E. E.„ Frazier. Frazier filed an answer, in which he set up legal title in himself to part of the land described in the complaint, and alleged that he was in adverse possession of it.
    Dr. J. R. Stockard and R. M. Jackson, the husband of the plaintiff, who acted as her agent in the purchase of the land described in the complaint, were witnesses for her. According to their testimony, Dr. Stockard purchased lots 2 and 3 in block No. 1, in Clayton Addition to the town of Hardy according to the plat of said addition on file, and directed that a deed be made in the name of his wife. Subsequently his wife conveyed the land by the same description to James P. Bristow. Bristow ¡subsequently conveyed it to E. E. Frazier, the defendant. Lot 3 was described in the deed as being 100 feet wide and 200 feet long. Later a new deed was executed by Bristow and his wife to Frazier, and the land was described as lot 3 in block 1 of Clayton Addition to the town of Hardy as shown by the plat to said addition. The plaintiff owned'all the other land in the forty-acre tract in which these two lots were situated, except one lot, which it is not necessary to refer to because it is not involved in this lawsuit. Lot No. 3 is the only one which is involved in the lawsuit. Both parties derive title from the same source.

      After Mrs. Stockard was in possession of the land, her husband, as her agent, and the husband of Mattie Jackson, who was her agent, and Tom McCaleb, who professed to know where the boundary lines of lot 3 were, went upon the land and established the boundary lines thereof by monuments driven in the ground, and Bristow fenced in the lot along the boundaries agreed upon. It was understood between the parties that Bristow did not claim any land except that which was marked out as lot 3, and it was agreed that the fence erected by him should be the boundary line between his lot and the land belonging to the plaintiff.
    E. E. Frazier was a witness for himself. According to his testimony, he purchased lot 3 in block 1 in Clayton Addition to the town of Hardy, and in the first deed the lot was described as being 100 feet wide by 200 feet long. Subsequently Frazier examined the plat to this addition and found that lot 3 was described in it as 217 feet wide by 762 feet long. The grantor, J. P. Bristow, then executed a new deed to E. E. Frazier, in which the land is described as lot 3 in block 1 of Clayton Addition to the town of Hardy, as shown by the plat of said addition. This deed was executed on the 27th day of September, 1924. Subsequently, and before this suit was brought, Frazier built a new fence on the line between him and the plaintiff so as to include within his boundaries a strip of land 217 feet wide and 762 feet long, as shown by the plat of Clayton’s Addition to the town of Hardy, took possession of the land within his inclosure, and had possession of it at the time this suit was brought. .
    The chancellor found the issues in favor of the defendant, E. E. Frazier, and, to reverse that decree, the plaintiff, Mattie Jackson, has duly prosecuted an appeal to this court.

      John II. Caldwell, for appellant.

      Sidney Kelley and McCaleb & McCaleb, for appellee.
   Hart, C. J.,

(after stating the facts). The decision of the chancellor was correct.

This court has held that equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that, where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such cases the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, 222 S. W. 1064; Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175; and Simmons v. Turner, 171 Ark. 96, 283 S. W. 47.

These cases also hold that our statute relating to actions to quiet title have not changed the rule. These and many other cases decided b}r this court hold that possession in fact, as distinguished from that constructive possession which arises simply in virtue of leg’al title, is essential to proceedings under which suit is brought to quiet title. The reason is that the original jurisdiction of equity and our statutes on the subject were designed to afford relief to a class of persons who, being in peaceable possession of a tract of land, had no means of clearing their title to it by suit in due course of law. Where some one else is in actual possession of the land to which the title is sought to be quieted, it is evident that there is an adequate remedy at law. Hence in such cases the party will be left to his legal remedy.

It is true that, in the case at bar, the plaintiff claims to hold the legal title to the strip of land in controversy because of an agreement between herself and the then owners of lot 3, and she claims to have possession of the disputed strip of land by virtue of her possession of the rest of the land owned by her in the same forty-acre tract in which the disputed strip is situated. The defendant, however, claims that, as soon as he got his corrected deed giving him title to all of lot'3 in block 1 in Clayton Addition to the town of Hardy, as shown by the plat on file, he examined the plat, and extended his fence to the limits of his lot as described in the plat, and took possession of all the land within the boundaries as shown by said plat. The land so inclosed by him included the strip of land in controversy in this suit. Thus it will be seen that Frazier had actual possession of this strip of land at the time the present suit was instituted by the plaintiff. Both parties claim the legal title to the strip of land, and, the defendant being in actual possession of it, the plaintiff had an adequate remedy at law, and, under our decisions, ■ must be left to her legal remedy.

It follows that the chancellor should have dismissed the complaint for want of jurisdiction, and nothing in this opinion shall be construed as preventing appellant from suing at law to recover said lot 3 in block 1.

It follows that the decree of the chancellor must be affirmed.