text:
    Judd v. Rieff.
    Opinion delivered June 13, 1927.
    1. Vendor and purchaser — equitable title op purchaser. — The effect of a contract for the sale and purchase of land, reserving to the vendor an option to declare the balance due on default and to rescind the contract, retaining payments as rent, was to make the purchaser the' equitable owner and the vendor a mortgagee for the unpaid purchase money.
    2. Mechanics’ lien — priority over purchase-money lien. — The lien for material's for building a garage, furnished to a purchaser in possession prior to the vendor’s exercise of his option to declare a contract rescinded for default, was superior to a vendor’s lien on the garage, under Crawford & Moses’ Dig., § 6909, providing that a materialman’s lien on a specific improvement shall be superior to prior incumbrances on the land.
    3. Mechanics’ lien — right to remove garage. — A garage for whose construction materials were furnished to a purchaser in possession, under contract, is subject to removal for satisfaction of the materialman’s lien, after the vendor has exercised his option to retake the property for default.
    4. Mechanics’ lien — extent op lien. — One who claims a lien for materials furnished to* build a garage under Crawford & Moses’ Dig., § 6909, for materials furnished by him to a purchaser, has no lien on the land after the vendor has retaken the property upon the purchaser’s default.
    5. Appeal and error — question not raised below. — Where the owner ‘ of property, after retaking the land from ■ a default purchaser, sought to quiet his title against a materialman’s lien, created during the purchaser’s occupancy, may not complain on appeal that the lien was not filed within 90 days as required ' by Crawford ’& Moses’ Dig., § 6922, where the issue was not raised by the pleadings or at the trial.
    6. Quieting title — burden op proof. — The burden is on the landowner, seeking to quiet his title against a mechanic’s lien created by a defaulting purchaser while in possession, on the ground that the claim was not filed in time, under Crawford & Moses’ Dig., § 6922, to prove that the last item of materials was furnished more than 90 days before the filing.
    7. Mechanics’ lien — burden of proof. — A vendor of land, seeking to cancel as a cloud on his- title a mechanic’s lien created by a defaulting purchaser while in possession, does not discharge the burden on him of proving that the last item was furnished more than 90 days before filing of the claim, under Crawford & Moses’ Dig., § 6922, by showing that an account for less -than the full claim was so presented.
    •.Appeal from Pulaski Chancery Court; Chas. B. Thweatt, Special Chancellor;
    affirmed.

      John L. Crank, for appellant.

      Carmichael & Hendricks, for appellee.
   Wood, J.

This is an action by Blanche L. Judd against H. P. Rieff to cancel a material furnisher’s lien which Rieff filed on February 17, 1925, on lots 2 and 3, block 4, Heisman’s Addition to the city of Little Rock, in the sum of $42.50. The plaintiff alleged that the defendant had no right to a lien for' any sum; that plaintiff was the owner of these lots, and that the lien filed by the defendant was a cloud upon her title. The defendant, in his answer, admitted that he had filed a lien as alleged in plaintiff’s complaint, and set up that he was entitled to the lien, and prayed by way of cross-complaint that be have a judgment for $42.50' and that same'be declared a lien on the lots in controversy, and that the property be sold to satisfy the judgment. In her answer to the cross-complaint the plaintiff denied that defendant had any right to the lien and judgment in the sum prayed.

The facts are substantially as. follows: The plaintiff was the owner of lot 3, block-4, Heisman’s Addition to the city of Little Bock, and; on October 2, 1924, she entered into a contract with N. F. Wicker and wife by which she agreed to sell to them the lot in controversy for the sum of $1,900, $50 in cash and monthly payments thereafter in the sum of $20: until the purchase money was paid. [There was a provision in the contract making time the essence-thereof and specifying that, if the-buyer fails- to pay any monthly installment when due, • and allows the same to become delinquent for mole than thirty days, the seller had the option to declare the entire balance of the purchase money due. and collectable or to rescind the contract; and further, that the- payments already made should be retained-by-the seller,- not as a penalty, but'as rent for the land;--and there was anágreement that, upon demand of possessioh. by the -seller, the purchaser • would immediately surrender the possessioh of the property.

Wicker went into possession of the-property under the contract. While the contract was in- force, the defendant furnished lumber to Wicker which was used by him in building a. garage on lot 3, the purchase price of which was $42.50; $15 . had been paid, leaving .a balance due of $27.50. .

On February 17, 1925, the defendant hied, a lien on the lot in controversy for.the sum of $42.50. The garage was first built at the side of the house as a part of the house. It was afterwards moved to the back part of .the lot. After the garage was moved from the side of the house, Wicker evidently bought more lumber, because, as built at the back of the lot, it had four sides to it and had a regular gabled roof on it. Wicker kept getting behind with his payments, so the plaintiff took the place back after the defendant had filed his liefi. The plaintiff never had any notice that the defendant had furnished any material to Wicker for the building of the garage until a few days before she filed her shit. Plaintiff did not give Wicker or his wife any authority, directly or indirectly, to buy any material and place it upon-the property.

The trial court found that there was due the defendant' the sum of $28.50 for material furnished that went into and became a part of the garage situated on the lot in controversy; that the defendant had a lien on the, garage, and was entitled to have the same sold to satisfy the claim. The court directed that, unless the amount of the decree be'paid, .the garage be sold to satisfy the decree. The court also directed that the purchaser of the garage should have the right to remove the same within thirty days after confirmation .of the sale. Prom the decree is this appeal.

Our statute gives a lien to any person who shall furnish any material for any building upon land “under or by virtue of any contract with the owner or proprietor thereof,” to secure the payment for such material. The statute gives the lien on the land only to the extent of the title or interest owned therein by the owner or proprietor of such building. The lien attaches to the building' or other improvements in preference to any prior lien or incumbrance or mortgage existing upon the lands before the improvements were made, and the person entitled to and enforcing such lien may have: the building, erection, or improvement sold under execution, and the purchaser has a.right to remove the improvement purchased within a reasonable "time.. See X 6906, 6908, 6909, C. & M; Digest.

The effect of the sales and purchase contract under review, in equity, was to create'á mortgage in favor of the vendor, Mrs. Judd, ’to secure the purchásé monéy. Wicker, in effect; became.the vendee and eqúitabló owner and mortgagor and Mrs. Judd the mortgagee. Fairbairn v. Pofahl, 144 Ark. 313, 222 S. W. 16; Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348, Section ■ 6933 of C. & M.. Digest provides that every person for whose immediate use, enjoyment or- benefit a building, erection or other improvement shall be made shall be concluded’ by the words'“owner or proprietor thereof.” The above language-is sufficiently comprehensive to include1 and-does include the vendee in possession under a contract of purchase such -as that under review. Wicker was the equitable owner or-proprietor, and in possession-of the lot in-controversy at the -time he purchased the materials: from Rieff-which-were used in the building of. the garage; The purchase and use by Wicker, of the-materials in the building of a garage on-the lot-in controversy gave to Rieff the right to perfect a- lien under the- statute on the lot to the extent of. Wicker’s interest therein. See Gunter v. Ludlam, supra; 27 Cyc. 29, 18 R. C. L. 885.

The statute (§ 6909, C. & M. Digest) provides that the lien shall attach to the buildings, erection or other improvements- for which they were furnished in prefer-,ence to any prior -lien or-incumbrance or mortgage existing upon the lands before the buildings were erected-or. put thereon, and also confers upon the person enforcing the lien the right to sell the improvements under execution, and confers upon ■ the purchaser at the sale the-right to remove the same within a reasonable-time, etc. There is no provision in the sales contract- to the effect that, upon the failure of the vendee to make any of-the monthly payments, the contract, from that time, should be1 considered as establishing the relation of' landlord and tenant.- On the contrary,- the effect of the contract is that the relation--of landlord and- tenant between the vendor and the vendee does not begin' until the vendor has exercised the option to declare-the entire purchase money -due and- to treat the' contract as rescinded-. The appellant did -not- seek to rescind the contract until after the garage was first attached to the building -on the lot, nor indeed until the garage thereafter had been detached, removed and rebuilt on " another part of -the'lot. ■ The appellant, as we have seen, under the sales contract as the vendor had a lien for the unpaid purchase money which was superior to appellee’s lien on the lot, because it existed before the appellee’s lien, was filed; but, under this statute, the appellee’s lien for materials furnished and used in the garage, which was first attached to the original building and which was afterwards moved and built into a garage on the back of the lot, was superior to the appellant’s lien under the sale contract:

In Imboden v. Citizens’ Bank, 163 Ark. 615, 260 S. W. 734, we held that, under § 6909, supra, a mechanic’s or ■materialman’s lien is superior to a prior mortgage only on a separate building constructed with the labor and material furnished or such addition as is separable from the original building without injury .thereto. And in Gunter v. Ludlam, supra, we held that § 6911 of C. & M. Digest “gives priority to liens for labor or material only against other incumbrances created after the commencement of the .improvement, and in effect subordinates the lien to prior incumbrances by way of mortgage or otherwise.” In Chauncey v. Dyke, Bros., 119 Fed. 1-7, the Circuit Court of Appeals, construing.this statute, among other things said:

“ The lien law in question is a remedial statute.- It was enacted to secure to laborers, artisans-and others who perform labor or furnish materials for the erection of buildings on the 'land of others, payment for such services and materials by giving them a lien,on the structure which .they have helped to create, instead of compelling them to rely merely on the personal security of the' debtor. That sueh laws are fair and just, and that they also tend to encourage the erection of buildings by insuring payment for the' labor and materials that are expended in their erection; has been generally recognized. As such laws are remedial in their nature and are prompted-by a wise policy, they should be liberally construed in favor of the class of persons for whose benefit they were intended. ”

If tlie appellee bad perfected. his lien by filing the same in time under the statute, it follows that the trial court was correct in holding that the garage was subject to sale for the payment of the balance due appellee for material furnished in the building of such garage and in directing that same be sold unless the sum due was paid. It follows that the trial' court ruled correctly in dismissing the appellee’s cross-complaint so far as the same sought to have a lien declared on lot 3.

The appellant contends here that, even if appel-lee be entitled to a lien, he did not perfect the same by complying with the requirements of § 6922 of C. &> M. Digest:. That section requires the person who wishes to ávail himself of the act to file with the clerk of the circuit court of. the county in which the building, erection, or other improvement to be charged with the lien is situated, a just and .true account of his demand, within ninety .days after the things, shall have been furnished. The. complaint, the cross-complaint and the reply to the cross-complaint do not raise this issue. The trial court’s attention was not .directed to it as an issue in the cause. On the contrary the record shows that the cause was heard in the trial court on the theory only that Wicker had no such interest in the property as would enable him to create a lien in favor of the appellee. Besides, there is nothing in the nature of the claim filed by the appellee to indicate that the last item of the materials was furnished more than ninety days before the filing of the claim. The burden of proof was upon the appellant, who was seeldng to-cancel the lien, to prove that the -last item- of the materials constituting appellee’s account against appellant was furnished more than ninety days before the appellee filed his account under § 6922, supra. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353, and Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999.

The appellant did not discharge the burden of proof by merely showing that appellee had presented an account to Wicker containing items for $36.60, which items had been furnished more than ninety days before the filing of appellee’s claim. Appellee’s claim was for $42.50. For aught shown to the contrary, some of the items making up this account were furnished ninety days' before the filing thereof.

The decree is affirmed.


source: Caselaw Access Project

author: Wood, j.

license: Public Domain

text:
    Robinson v. Mud Slough Drainage District No. 1.
    Opinion delivered June 13, 1927.
    1. Drains — sufficiency of petition and order creating district.— A petition for creation of a drainage district and an order creating it, need not expressly declare that the proceedings were under thé alternative system, provided in Crawford & Moses’ Dig., § 3607 et seq., and amendment (Gen. Acts 1921, p. 388), where .such fact'appears from the proceedings themselves as set forth in the complaint to enjoin further proceedings under the order.
    2. Drains — sufficiency of petition. — 'The fact that a petition for the. creation of a drainage district and the order creating it set forth with more particularity than required by law a description of the land to he embraced within the district and the improvements contemplated doe’s not render the original petition and court ■ order based thereon void. '
    Appeal from Greene Chancery Court; J. M. F.utrell, Chancellor;
    affirmed.

      Jeff Bratton, for appellant.

      D. 0. Beauchamp, for appellee.
   Wood, j.

The plaintiffs filed a complaint in the chancery court of Greene County, for the benefit of themselves and all others similarly situated, against the defendants, the. Mud Slough Drainage District No. 1 of .Greene County, Arkansas, and its commissioners. The complaint 'alleged in substance that the plaintiffs were the owners of real estate situated in the district; that the defendants, Donaldson, Bridgers and Bertig, had been appointed commissioners of the district and were acting as such. Plaintiffs set forth the original petition filed in the county court, signéd by certain landowners of the‘district, petitioning for the creation of the district,, in which petition is set forth the description of the lands to be embraced in the district and the improvements to be made. With the petition was filed a bond, as required1 by § 3607 of C. & M. Digest, to pay for the expenses of the survey of the proposed district in case the district was not formed.

The complaint then sets out the order of the county court appointing an engineer to survey the lands described in the petition for the creation of the district, and directing him to give bond, make his survey, and report to the court. 'The complaint alleged that the engineer sp appointed entered into a bond as required by law and went upon the lands, made the -survey, and filed his report with the county court. The-complaint then set out his report. The complaint alleges that, kpón the filing of 'this report, the court made an order directing the clerk to give notice to all persons to appear before the. court on a certain day, as required by statute, to show- cause in favor of or against the establishment of the-district. The complaint then alleged that the notice was given as réquired by law, and' sets forth the notice; that, on the day set for the hearing of the petition, the county court of-Greene County granted such petition and entered of record an order reciting the various- steps that had been taken, and finding that these steps were as required by law, together with the order of the county court creating the district and the' appointing of the; commissioners. ' . ■ •

The complaint'then'alleged that the commissioners duly qualified as such and entered upon their duties, and that they proceeded to-carry out the improvements contemplated by' the' district, pursuing all steps as required by law. The complaint in detail sets out the steps that-were-thereafter' taken by the commissioners as required by law, alleging that they formed plans and estimates for the district, that the county court adopted these plans', and that the' coihihissioners'1 went upon the lands and assessed the benefits. The complaint alleged that the commissioners filed, the report of the assessment of benefits, and gaye notice as required bylaw to the landowners within the district to appear on a certain day named in the notice to present objections, if any, to the'assessment of benefits; that the assessment of benefits as made by the commissioners wás duly confirmed, and that these assessments became a cloud on plaintiffs ’ title’ to the real estate owned by them in the district; that the order of the court creating- the district was void for the reason that the petition filed for the creation of the district “is so indefinite and uncertain as to the law under which the district is sought to be'organized and established that the notice of the heating'did nót give the court jurisdiction to hear and establish the district as it attempted to do. Plaintiffs allege that the defendants, the’commissioners of the district, were seeking1 tó sell bonds to the amount of $50,000 and to let á contract for the cutting of the ditch, and, if not restrained, would do so. The prayer of the complaint was that the order creating the district be declared hull and void- and the commissioners and officers of the district be enjoined from further proceeding under the order of the court creating the district, and for all proper relief.

The defendants demurred to the complaint on the ground that it does not state facts sufficient'to constitute a cause of action. The court sustained the demurrer. The plaintiffs refused to plead further, and stood upon their complaint. The court thereupon entered a decree dismissing the complaint for want of equity, from which is this appeal. ; •

A careful examination of the original petition and all of the proceeding's thereunder, as set forth in the complaint, demonstrates that the petitioners and the county court proceeded to create the drainage district in controversy under the alternative system of drainage districts, as provided in. chapter No. 51 of, Crawford & Moses? Digest, §§ 3607- et- sect, and 'the amendments thereto. See act 123 of the General Acts of 1921, page 388.

The only objection urged in the complaint and by counsel for appellants here to the creation of the district is that it does not appear in the petition or the order of the county court creating the district whether the proceedings creating the district were under what is designated in the statute as the “alternative system of drainage districts,” supra. It was wholly unnecessary for the petitioners and the county court to expressly declare in the petition or in the order creating the district that the proceedings were under the alternative system of drainage districts as set forth -in .0. & M. Digest, supra. The fact conclusively appears from'the proceedings themselves, as set forth in the complaint. It certainly does not render the original petition for the creation of the district and the order of the court based thereon invalid because the petition .sets forth, with more particularity than is required by the law under which the district is formed, a description of the lands to be embraced within the district and the improvements contemplated.

The court ruled correctly in declaring that the complaint does not state, a cause of action, and in entering its decree .dismissing the same. The decree is therefore affirmed.


author: Smith, J.

text:
    Southern Insurance Company v. Floyd.
    Opinion delivered June 13, 1927.
    1. • Insurance — jury question. — In an action on a policy of life insurance, evidence held to raise'the question for the jury whether insured had tuberculosis at the time of his application, in which he made the statement that he had never had tuberculosis.
    2. Evidence — hearsay — privileged matter. — In an action on a life insurance policy in which the insurer contended that insured had tuberculosis at the time of the application and affidavit of deceased doctor, who attended, insured in his last illness, that he treated insured for tuberculosis prior to application, was inadmis- . sible both as being privileged matter and as matter of hearsay.
    3. Insurance — knowledge of agent.' — Knowledge relating to the physical condition of the insured which comes to the agent of the • insurance company, while he is performing the duties of his agency in receiving applications for insurance and delivering, policies, becomes the knowledge of the company, and the insurance company is bound thereby, in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.'

      John L. Crank, for appellant.

      George G. Stoekard, for appellee.
   Smith, J.

Appellant insurance company issued a policy of insurance to W. M.. Floyd, payable to bis wife, for the sum of $100, and increasing $20 per month until a maximum of $1,000 was reached. The insured died August 5, 1925, and the policy at that time, if valid, was worth $580, and the beneficiary brought suit for that amount, together with penalty and attorney’s fee. The policy was written July 8, 1923, and the insured was not required tó submit to a medical examination to obtain it. ‘ He was required, however, to make an application in which numerous questions were asked concerning the existing and previous condition of his health.

The question was asked: “Give the name and address of doctor last consulted and date,” to which question the applicant answered: “Doctor Downey, of Cecil, Arkansas — 9 years' ago.”

Certain diseases were specifically inquired about, one of these being rheumatism, and the' applicant answered: “I had one attack of rheumatism about--6 years ago.”

The application contained the question: “Have you ever had any disease of the following organs -. lungs— tuberculosis?” and to each of these questions the applicant answered: “No.”

After answering the various questions asked, the applicant signed the following statement:

“It is hereby understood and agreed that each and all of the foregoing statements and answers were made by me to ..obtain a policy of insurance in the Southern Mutual Life Association, and in consideration of the reduced- rate of the policy which may ■ be issued 'me hereon, and the fact that no medical examination is required; the Southern'Mutual Life Association, relying solely on my statements and answers, to questions contained herein for information as to -my eligibility, I do hereby warrant and declare said answers and statements to be absolutely full, trué and complete. It is hereby covenanted, declared and agreed that all statements answers and provision's contained in this application shall, together with the by-laws governing said association (now in force or which may hereafter be adopted) be the basis of and form a part of the contract between the applicant and said association, and the policy which may be issued upon this application shall be accepted by said applicant upon the express condition that, if any statements or answers in said application are untrue or are in violation of any term or condition or covenant of said policy or by-laws (now in force or which may hereafter be adopted), then said policy shall be null and void, and all benefits thereunder shall be forfeited. ’ ’

The testimony shows that the insured died of tuberculosis on the 5th day of August, 1925, and it is insisted by the insurance company that the insured was suffering frqm that disease at the time the policy was issued, and that this condition constituted a breach of the warranty to the contrary, which invalidated the policy. It is also insisted by the .insurance company that the applicant falsely stated that the last physician consulted by- him was Dr. Downey, nine years prior to the date of the application, whereas the insured had consulted and been treated by Dr. Hill, of Mulberry, Arkansas, six years before the date of the application.-

The court gave, at appellant’s request; an instruction which told the jury that the answers contained in the application were warranties, and that, if the answers were false, there could be no recovery on the policy sued on, but appellant insists that, under the undisputed testimony, a verdict should have been directed in its favor, for the reason that the insured had tuberculosis at the time of his application, and made a false statement as to the date when he had last consulted a physician.

The following testimony was offered tending,, to show that the insured had tuberculosis at the date of his application: The father of the insured, made an affidavit to that effect, but, when called as a witness by appellant, he repudiated the affidavit and testified that he could not read or write, and that the affidavit had not been read over to him, and that he did not state that his son, the insured, had tuberculosis. An attempt was made to offer in evidence an affidavit mad§ by Dr., Hill, who attended the insured in his last,, illness. In Dr. Hill’s affidavit he stated that he had. treated .the insured for tuberculosis in 1920 and 1922, which was prior to the application for the policy. Dr. Hill was dead at the time of the trial, and an objection was sustained to the introduction of his affidavit upon the ground that the matter was privileged and that the affidavit was hearsay. There was no error in this ruling. This affidavit was not a deposition, and was properly, excluded by the court. .

Dr. J. E. Johnson, a physician in charge of a hospital devoted to the treatment of tuberculosis in Fort Smith, testified that he treated the insured for. tuberculosis in June, 1924, and that the case was then chronic. This, however, was practically a year after the date of the application, and Dr. J. B. Trice, who was called as a witness for appellee, testified that the disease of. tuberculosis could become chronic in that time. .

A. B. Henderson, a druggist, testified that, in the fall and winter of 1921 and 1922, the insured was about five feet eight inches tall, weighed only about 135 pounds, arid was stoop-shouldered and thin-chested and had a sallow complexion, and that he saw Dr. Hill give the insured a medicine which was used in the treatment of tuberculosis. The witness could not state, however, that the medicine- had been prescribed for the insured himself.

We cannot say that the jury , must necessarily have found, from this testimony that the insured had tuber-ciilosis at the. date of his application.

In the very recent case of Modern Woodmen of America v. Whittaker, 173 Ark. 921, 293 S. W. 1045, it was held that the statement, of an applicant for insurance, which was made a warranty by the provisions of the application, that he was in good health, should be construed as meaning only that the insured believed himself to he in good health.

It is also insisted for the.reversal of the judgment, in the plaintiff’s favor that the insured falsely answered that he had last been treated by Dr' Downey nine years before the date of the application, whereas the testimony showed he had. been treated six years prior to that date by Dr. Hill for rheumatism.

This last testimony was elicited from the beneficiary in the policy, who testified in her own behalf. She testified that she was present, when the application for the. insurance was made, and that her husband stated to the agent of the insurance coihpany, who filled the blanks, that Dr. Hill had treated hér husband for rheumatism, six years prior to that date, but that' it appeared the agent had not written clown the answer in full.

In the case of Mutual Aid Union v. Blackmall, 129 Ark. 450, 196 S. W. 792, it was held that “knowledge affecting the rights of the insured which comes to the agent of the insurance company while he is performing the duties of his agency in receiving applications for insurance and delivering policies, becomes the knowledge of the company; and the insurance company is bound thereby, in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions ' concerning his physical condition. ” - See ■ also People's Fire Ins. Assn. of Ark. v. Goyne, 79 Ark. 315, 96 S. W. 365, 16 L. R. A. (N. S.), 1180; Springfield Mutual Assn. v. Atnip, 169 Ark. 968, 279 S. W. 15; Ark. State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S. W. 449; Old Am. Ins. Co. v. Wexman, 160 Ark. 571, 255 S. W. 6; Home Mut. Ben. Assn. v. Rowland, 155 Ark. 450, 244 S. W. 719; Home Mut. Ben. Assn. v. Mayfield, 142 Ark. 240, 218 S. W. 371.

The testimony of - the beneficiary is to the effect that the applicant correctly and truthfully answered the questions as to the. names of the physicians who had treated her husband, and is. to the effect that there was no collusion between the company’s agent and the insured. Moreover, the application contains the answer that the applicant had an attack of rheumatism six years before the date of the application, so that the insurance company was advised of that fact when the policy was written, this being the occasion. when the. beneficiary testified her husband had been treated by Dr. Hill. ■ In the' application. the. insured was asked to give the names of two doctors who.knew him, and the name, and- address -of Dr.-Hill was. given, in ansiver to-this .question.,

■ • ■ Under the facts stated we cannot say, that the jury was not warranted in finding that ther.e ,-bad, been no breach of the Avarranty in either of the particula-rs stated, and the judgment-must therefore be affirmed, and it -is so ordered. . ■ . ■ . ■ •


text:
    Prairie County v. Gray.
    Opinion delivered June 13, 1927.
    Counties — allowance op claim — fraud. — Fraud in allowing a claim against the county for road and bridge work is not established by showing merely that the claim was not itemized or verified, but such circumstance may be considered in determining whether there was fraud. ='• ■ - / t — P 7
    Counties — fraudulent claim — review by circuit court:— Where there was testimony which supported a finding that certain county warrants were fraudulently issued by the county court,
      held that the circuit court had the right to inquire and determine what amounts were properly due on such claims.
    3. Counties — allowance of claim — taxpayer’s appeal. — A taxpayer’s appeal. from the county court order allowing certain contractor’s claims for bridge and road work held to confer jurisdiction on the circuit court to inquire'and determine what amounts were properly due on the claims.
    4: Appeal and error — sufficiency of evidence. — Where an appeal presents nothing but question of fact, the Supreme Court must . affirm the judgment - of the circuit court, if the testimony was legally sufficient to support the findings made.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Gregory & Holtzendorff, Chas. A. Walls, W, J. Waggoner, and Trimble £ Trimble, for appellant.

      Cooper Thweatt and John D. Thweatt, for appellee.
   Smith, J.

Appellee, B. A. Gray, entered into a contract -.with Prairie County to do-certain road and'bridge work and to drag certain other roads and to build certain bridges. J. P. Sims was • the county judge at the time this contact was made.- Gray built a dump about three miles long, and filed four claims for moving the earth used in its-construction. One-claim was for $896.60 for moving 4,483 cubic yards*- the second for $929 for moving. 4,645 yards, the third for $649 for moving 3,245 yards,.and the fourth for $847.40 for moving 4,237 yards. Other claims were filed for grading -and for dragging the roads and for construction of two bridges. All the claims were allowed in full. None of the claims were verified, and some of them were not-itemized.

Sims was succeeded as county judge by George W. Craig, who, shortly after his induction into office, made an order calling in all outstanding county warrants for reissuahce, and at: finding was made'by him that certain warrants, issued to appellee were fraudulent and had been issued oollusively by his predecessor, and new warrants were issued Gray for the amount, found due by Judge Craig for-services actually performed-under'the contract: - "

W. L. Sanders, a citizen and .taxpayer of the county, prayed an appeal from the order allowing the.claims of Gray, and this appeal was consolidated and heard with the appeal from the order of the county court made upon reissuing the warrants. -. .

It was decided in the case of Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40, that the county court, in the .allowance of claim’s against the county, acts judicially, and that its judgments are not open to collateral attack except for fraud or lack of jurisdiction, hut that, when the court has ordered warrants to be called in for reissuance under the power- so' to do conferred-by statute, the authority exists to reject warrants issued illegally or fraudulently. It was there also decided that, while the mere fact that the county-court had erroneously allowed a claim for an excessive amount does not call for reinvestigation and review in the calling-in- proceeding under the statute, yet, if fraud was practiced in the allowance itself, the claim is an illegal one, and may he canceled, but, when canceled, it should then he allowed for the amount actually due by. the county.

The evidence tending to show- collusion in the issuance of the claims is as follows: They were not itemized or verified. These circumstances alone do not establish fraud, although they are proper circumstances to consider in determining whether there was fraud.

In the case of Lamb & Rhodes v. Howton, 131 Ark. 211, 198 S. W. 521, it was held that the failure to-verify a claim did not operate to defeat the jurisdiction of the county court to allow it, and that the verification might he supplied in the circuit court.

It was further shown by the testimony, however, that a claim was allowed for the construction of two bridges, each sixteen feet long, at a certain crossing, whereas only one.bridge was built at that crossing,'and it was only twelve feet in length. It was shown also that the county judge drew most of the warrants which he had ordered issued-to Gray.

We conclude therefore that the testimony supports the finding that certain wa'rrant's were illegally issued, and the court therefore had the" right to inquire and' to determine what amounts were properly due on the claims. The appeal of the taxpayer would also confer this .jurisdiction-.

■ The judgment of the circuit court affirmed the action of the county court in certain respects, but reversed the judgment of the bounty' court in - others by ordering allowance to be made in larger amounts than those fixed by the county court,- -and the county, has- appealed from this order. It appears therefore that the present appeal pres'ents nothing but questions of fact, -and we must therefore, under settled'rules of practice, affirm the'judgment of -the 'circuit court if- the testimony is legally sufficient to support the findings made. Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723; Matthews v. Clay County; 125 Ark. 136, 188 S. W. 564:

' The’ principal items involved are for thé earth excavated and placed in the road, the contract for'which was twenty cents per cubic yard. Judge Craig employed two engineers, to check this work, and, according to their testimony, the allowances were - grossly, excessive.. The county surveyor had'given appellee estimates on the work as it progressed, and these "estimates,- four in- numiber, totaled 16,610 yards. One of the - engineers .employed ,bv Judge Craig placed the yardage at 2,960.2, the other at 3,520.7.

. The county surveyor explained how these estimates were made, and testified that they.were correct, except that he had made a mistake of 4,000 yards in his calculations.

H. R. Carter testified, in appellee’s behalf, that he saw the bench marks placed by the county surveyor,' and that he checked the notes and found them correct, and that, in his opinion, it would have been impossible for the couiitv surveyor to have “'framed up” his notes. It was Carter who discovered the error of 4,000 yards in the county surveyor’s estimates, but, notwithstanding this fact, Carter testified that, in his judgment, 12,699 cubic yards of earth had been moved. In addition to this testimony, appellee himself testified that he had moved a quantity of earth as great at least as that stated by Carter. , -

The circuit court rendered judgment in • appellee’s favor for moving the amount of earth which Carter stated had been moved, at the contract price, and, as the testimony supports that finding, we cannot disturb it.

The finding,., o'f the county court in regard 'to the allowance for the! bridge does not appear to be questioned. Indeed, appellee himself testified that he did not present a claim for two bridges,- and could not explain why this was. done..

As to' the items for grading and dragging the roads, it suffices to say that appellee testified as to the number of days on which he had worked and the number of men and teams employed, and there appears to be , no real contradiction of this testimony..

The judgment of the court allowing these items appears to be supported by legally sufficient testimony, and the judgment will therefore be affirmed.


author: Smith, J. Me happy, J.

text:
    Howell v. White River Levee District.
    Opinion delivered June 13, 1927.
    1.' Levees — belief from assessments. — Under Sp'. Acts 1921, p. 1133, providing that persons aggrieved by levee assessments shall have 20 days in which to take action,.held that, on failure so to act, the assessments are incontestable as to them.
    2. Levees — -validity of, assessment. — The fact that an improvement under a special act of 1920 which authorized a levee district to straighten the channel of a river and construct drains and levees necessary to protect lands from overflows had not' been completed was not ground for setting aside the assessments for which taxes had become delinquent where the assessment made was based on the assumption that the improvement would be completed. •

      3. Levees — review, op assessments. — In reviewing, an assessment of benefits,, the Supreme Court must consider the fact that - the assessors are more familiar with conditions to be considered in ’ making their assessments than the reviewing' court can be.
    4.' 'ApPEALAND ERROR — CONCLUSIVENESS OP CHANCELLOR’S FINDING.— Where the reviewing court cannot say, under the evidence, that • ¶' the assessments of benefits in a drainage district' were erroneous, ■ the decree of the chancery court. sustaining the assessments-must be.affirpied.
    Appeal from Woodruff Chancery Court/' Southern 'District; 'A:L. Ilitbelmis - Chancellor;
    affirmed. •

      Boy D. Campbell, for appellant.

      Boss Mathis, for appellee.
   Smith, J.

Appellants own a large body of land in the White River Levee District, and seek by this suit to restrain the officers of the district .from prosecuting a suit to enforce payment of certain delinquent taxes assessed against their lands. .They, prayed this relief upon the ground that the lands had , received no benefit and-could receive none from the proposed improvement.

In support of the allegations of the complaint, appellants offered testimony to the effect that their lands were situated between White and Cache Rivers, and were overflowed from the waters of both streams, and that the lands would be overflowed by the Cache River even though the lands were protected from the overflow of the White River by the levee along-that stream.

Act No. 97 of the 1911 session of the General Assembly (Special and Private Acts 1911, page 215) created and ■ defined' the boundaries óf the White- River Levee District,'and,'pursuant to the authority of this act, better-ments were -assessed .-to pay the cost of the proposed levee. It appears that .betterments were assessed .against the lands of appellants, but they paid no*,taxes, and no taxes appear to have been extended against their lands until • 1919, when the taxes for that year were assessed against the lands of appellants. They . thereupon brought suit to enjoin the.collection of .the taxes, and alleged that the lands, by reason of their location, had not and could not receive any benefits from levee-ing White River. The depositions of several witnesses were .taken, in support of. the- -allegations of-, the complaint.- This testimony was to the effect :that"a large part of appellants’ lands were low and swampy and unfit for-cultivation as the result of the annual overflows'of both the White .and Cache Rivers, and that-the leveeing of the White River did-not prevent the overflow of the lands by the Cache River, although the depth and duration of the overflow.was lessened by protection from the White River. , \ -. • . .. - . .

• - The suit’to enjoin the collection of -th'eT91-9 tax does not appear to have been -prosecuted to a final' decree, and while it was pending there was passed, at the Extraordinary session of 1920, an act entitled “-An act in aid of the White River Levee -District.’’-’This is one of the unpublished-acts. . ..

; . This act of 1920: authorized the board of -directors of’ the White- River Levee District to- straighten ■ the channel of the Cache River and to construct-such drains, ditches, and levees “as will be- necessary-to protect the lands of the district from overflows from the waters of Cache River, ’ ’' and, to accomplish that end, the. White River Levee-District was authorized - to. issue interest-bearing bonds in a sum not exceeding $400,000. . 5 .

At the-ensuing regular 1921 session .of the -General Assembly an act was passed which provided -for a reassessment of the benefits in. the White River -Levee Distinct,. and § 1 of the act recited that the existing-assessments were-inequitable. Special Acts 1921, page-1133-. .:

The'- act of 1921 provided that the total amount' of benefits theretofore assessed should not be reduced, but that the existing assessments-should be-equalized, and, to that- end, assessors were named in the act, who were directed'“to make a reassessment of the-benefits that will accrue and that have accrued,” and to give notice of the assessment in the-manner-provided-by the act creating the district. Section 5 of; the act creating the district required the president of the hoard of directors to give notice of the original assessment and of the time and maimer in which protests might be made. It was there provided that any person,, firm, company or. corporation aggrieved by said assessment shall have twenty days in which to take action against the same, if such they have, and their failure so. to do shall render said assessment incontestable as to them, either at law or in equity. •

• The reassessment was made, and appears to be ..the assessment here attacked, but it does not clearly appear that this attack was brought within the time and manner provided by the original and 'amendatory acts above referred to, and, unless this was done, the assessments became final and binding. House v. Road Imp. Dist. No. 2, 158 Ark. 330, 251 S. W. 12.

We think, however, that the action of the court below in dismissing the complaint of appellants as being without equity should be affirmed,-' even though the action is not' barred by the failure of appellants to institute proceedings within the time limited by law to attack their assessments.

. , . The affirmative, showing is made that the improyement authorized by the special act of 1920 was never completed. The straightening and deepening of the channel of Caché River- was' begun, but the work stopped about seven of eight miles from appellant’s lands. This appears to have .been due' to the failure of the bank in which the funds of.the district were deposited,.and appel-' lants insist that, inasmuch as the proposed improvement authorized by the' act of 1920' has not been completed, and may not be completed, the proposed improvement cannot be taken into' account iii determining whether the lands will be benefited." The answér to this- contention is that the assessment of benefits was "based upon the assumption that the improvement authorized by the act of 1920 would be' completed, and the assessment cannot be defeated' because this was not doné. Salmon v. Board of Directors, etc., 100 Ark. 306, 140 S. W. 585; Road Imp. Dist. No. 3 v. Norris, 153 Ark. 635, 241 S. W. 380; Hunt v. Road Imp. Dist. No. 12, 168 Ark. 266, 270 S. W. 961.

It is stipulated that' the assessors, in making the last assessment, ^reassessed the benefits “in accordance with the law appointing them, and in strict conformity thereto these assessors made a reassessment of all lands of the district, and, to the best of their ability, rendered a fair and impartial assessment upon all lands in-said district.” It appears also that the present assessment of appellants’ lands was greatly reduced, some of the assessments being not more than a third of the original.

It was also stipulated by counsel that the depositions taken in the first suit brought by ,appellants to enjoin the collection of the taxes agáinst appellants’ lands might be read in evidence; in the present case, and' it is upon these depositions that appellants now ask relief, but it will be remembered that these witnesses did not take into account the improvement of Cache River, as that improvement was not then authorized.

The testimony does appear to establish the fact that, unless Cache River is improved, that stream would overflow appellants ’ lands, even though White River were leveed, but this testimony also shows that the extent and duration of the overflow would be lessened by levee-ing White River, so that some benefit would be conferred even though complete relief was not afforded.

In the case of Memphis Land & Timber Co. v. St. Francis Levee District, 64 Ark. 258, 42 S. W. 763, the landowner resisted the collection of the tax imposed on its land upon the ground that the levee would not afford protection from surface water, and testimony was offered that certain lands would not be benefited by the levee for the reason that they are wet from winter and spring rains from six to nine months in the year, and that certain other lands would not be benefited because they are above overflow. Mr. Justice 'Battle, .speaking for the court, said that this proof was not sufficient to show that such lands would not ho benefited by the levee, as the owner might be enabled to reclaim them by means of drainage, and. the relief prayed was denied the landowner. '

The assessors, no doubt, took all the- facts here stated into account in making the last assessment, including the possible effect of the improvement authorized by the act of 1920.

In reviewing assessments in cases of this kind we must, of necessity, take into account the fact that the assessors are more familiar with the conditions .to be considered in making up their assessments than we can be. In the case of Rogers v. Arkansas-Loudsiana Highway Imp. Dist., 139 Ark. 322, 213 S. W. 749, we said:

“We announced the rule to be followed by this court in the decision of questions of this' character in the case of Mo. Pac. Ry. Co. v. Monroe County Road Imp. Dist., 137 Ark. 568, 209 S. W. 728, where it was said: ‘An estimate of benefits resulting from a local improvement to' a given piece of property is largely a matter of opinion, and generally there is a wide difference of opinion on such questions. Under those circumstances a great amount of deference is due to the judgment of the board of assessors, who are constituted as a special tribunal for the purpose of determining that question, and courts reviewing the procéedings of the assessors should not substitute the judgment of the judges for that of the assessors, unless the evidence clearly shows that the assessments are erroneous.’ ” See also Wilkinson v. St. Francis County Road Imp. Dist. No. 1, 141 Ark. 164, 216 S. W. 304.

There is no contention that the assessors acted arbitrarily in making the assessment. On the contrary it is stipulated that, to the best of their ability, they made a fair and impartial assessment upon all the lands in the district, and their work cannot be set aside by us -because the proposed improvement of Cache River, which they were required to take into account, was not completed.

■ As we are unable to say that the evidence clearly shows that the assessments are erroneous, the decree of the court below must be affirmed, and it is so ordered.

DISSENTING OPINION.

Me happy, J.

'I cannot (agree with the opinion of the majority in this case for the reason that I think the decision violates the Constitution. of the United States and also the Constitution of the State of Arkansas. The testimony, as I view it, shows conclusively that the lands of appellants are not only not benefited, but will not be benefited by the improvement. .According to my view of this case, it is a taking of appellant’s property ’ without any compensation whatever. I think that the testimony conclusively shows this, and. the decision of the court therefore violates the provisions of the Constitution of the United States, above mentioned, and violates the provisions of the Constitution of Arkansas.

Section 22 of article 2-of the Constitution of the State of Arkansas provides:

“The right of property is before and higher than any constitutional sanction, and private property shall not be taken, appropriated or damaged for public use without just compensation. ”

It is said in' the majority opinion:

“The affirmative showing is made that the improvement authorized by the special act of 1920 was never completed. The straightening and deepening 'of the channel of Cache River was begun, but the work stopped about 7 or 8 miles from appellant’s lands. This appears to have been due to the failure of the bank in which the funds of the district were deposited, and appellants insist that, inasmuch - as the proposed improvement authorized by the act off 1920 has not been completed* and may never be completed, the proposed improvement cannot be taken into account in determining whether the lands will be benefited.”

The answer to this contention is that the assessment of benefits was based upon the assumption that the improvement authorized by the act of 1920 would be completed, and the assessment cannot be defeated because this was not done.

In other words, as I .understand .the majority opinion, you ©an take one’s property without any compensation whatever, if you base the assessment upon the assumption that an improvement will be made, and on the further assumption that it will benefit your lands. Such is not the meaning of the Constitution as I understand it.

The following cases are then cited in support of the declarations above set out by the majority opinion: Solomon v. Board of Directors, etc., 100 Ark. 336, 140 S. W. 585; Road Imp. Dist. No. 3 v. Morris, 153 Ark. 635, 241 S. W. 389; Hunt v. Road Imp. Dist. No. 12, 168 Ark. 266, 270 S. W. 961.

I do not understand the above cases support the doctrine announced by the majority in this case. The first case cited is where the parties did not contend that they would not be benefited by the improvement, but the contention there made was that the appellant’s land had not been benefited by that portion of the improvement already made, and that they could not require taxes to be paid by one until the improvement had been so far completed that his lands would be benefited. It was not contended in- that case that .the improvement would not benefit his lands, - and it was not contended that the improvement had been abandoned. The only contention was, as I understand it, that the improvement had not gone far enough at that time to benefit appellant’s, land. . '

The court said that the scheme contemplated by the creation of the district was for the construction of the levee as a whole, and the benefits were to accrue from the consummation of the plan. And the court further held, in effect, that to fail or refuse to collect taxes until-the entire improvement was completed and everybody’s lands in the district benefited, would frustrate the whole scheme, because, under a view like that, the improvement or construction work could not be begun until all the funds Avere raised for the purpose. And, according to appellant’s contention in that case, yon could not raise any funds until the work had been done.

The next case referred to by the court to sustain the proposition, was a road district created under the Alexander Road LaAV, AAdiere there was authority to reassess, and it does not seem to me that it supports the decision in this case.

And in the next case referred to by the opinion, I do not think that the same question was decided that is involved in this case. In fact, I do not lmoAV of any decision of any court that has held, Avhere the proof shows that no benefits have or will accrue to one’s lands, that it can be assessed lat all.

This court has repeatedly held that the only theory upon which assessments can be collected is the theory that the benefits accruing from the improvement is equal to or greater than the amount of tax. I know of no decision of this court that holds to the contrary. And if any decision Ava.s to the contrary, it would certainly violate the provisions, not only of the Constitution of the United States, but of the Constitution of the State of Arkansas. If that theory is true, and it Avill not be disputed, then how can the fact that the bank failed, and money belonging to the district Avas lost, justify an assessment against appellant’s lands unless they are benefited in some way?

In a case in the Federal court it Avas contended that something over 10,000 acres of land Avould receive no benefits, and the district judge stated as folloAvs: “So the question Ave are called upon to determine is Avhether the facts in this case shoAv that there is no benefit, either direct or indirect, to the land in controversy, or, if indirect, that it is so remote that it is purely speculative.”

Numerous authorities are cited, and the Court of Appeals, after quoting the above statement, continued:

“And thereupon the court held that the facts do not overcome the presumption arising from the assessments that the lands Avould receive benefits. The case made by •the .plaintiffs on the facts was not'that all the 10,320 ■acres would not receive benefits, but that parts of the tract would not receive benefits, some being at too high •an altitude. and some too low to be affected by the improvement; and we think that claim was clearly established, .and that the. court fell into error when it denied plaintiffs relief.* * * It is contended that, when the system is put through, it will permit the drainage of the lower lands on the east side of the lake into the lake. We. do not see how that may be so, inasmuch as the proposed plan will not reduce the waters in the lake to a lower minimum level than- they now have, nor how the swamp lands in the tract could receive any benefit if pro.tected from overflow by the system. * * * On the whole, we are convinced from this record that much of the land lies at such elevation that the system when completed will be óf no benefit to it.’.’ Kansas City Life Ins. Co. v. Chicot County Drainage Dist., 5 Red. Rep. 2d. Series 605.

The proof in this case shows that appellant’s lands have not been benefited, that the scheme has been- abandoned, and to make- them 'pay any assessment at all .under these conditions, I think, is taking their property ■without any compensation. I think the proof shows that, if the Cache River Improvement was completed, the only way it- would laffect appellant’s land would be to somewhat reduce the depth of water on appellant’s land during an overflow. ’ In other words, if the Cache River improvement had been completed, the water from the overflow on appellant’s land would not be quite as deep as it would without the improvement. -But this improvement has-been abandoned, and there is therefore, as I view it, no benefit accruing to appellant’s land, and it should not be assessed, and the case should be reversed.


text:
    Hopkins v. State.
    Opinion delivered June 13, 1927.
    Criminal law — testimony brought out on cross-examination, —In a prosecution for burglary,, it ■ was not error, to refuse defendant’s motion to exclude evidence of the State’s witness that finger prints of no two persons were identical where such testimony- was elicited1 by defendant nn cross-examination. • .
    Criminal law — opinion -op expert ' witness. — In a prosecution for burglary, á motion by defendant to exclude the testimony of ■an. expert witness on- behalf of the State, that finger prints of no two persons were identical, was properly refused, where the witness stated that his' answer .was not a matter of opinion but one of fact, as demonstrated by multiplied thousands of tests.
    Criminal law — -demonstration of witness’ ability to distinguish finger prints. — In' a prosecution for burglary,’ refusal to-exclude from consideration of the . jury a demonstration of the ability of a witness to distinguish finger prints, and refusal to admonish the jury to disregard it, held not-error, since it is competent to examine the witness who proposes to testify as ‘ an expert touching his qualifications.
    Criminal law — charge to jurors in defendant’s absence1. — id a prosecution for burglary, it' was reversible- error for' the court to charge individual jurors as to the law of the case in. the absence of accused and his. counsel, and after the jury had been deliberating for a considerable period of time without reaching a verdict. ■ -
    Appeal from Franklin Circuit Court, Ozark District ; J. 0. Kinccmnon, Judge;
    reversed.
    J. D. Ne«so«, for appellant.

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

Appellant was tried-under an indictment charging Mm with the crimes of burglary and grand larceny. He was acquitted on the larceny charge, but was convicted on the burglary -count of. the indictment and given a sentence .in the State Penitentiary.

A .bank at Altus had been entered by burglars, who, after entering the vault where the Safety deposit boxes were kept, broke into several of these boxes. “When the sheriff arrived at the scene he observed finger !prints -on the boxes, and he caused photographs of these finger prints to be made. Appellant had been confined in the State Penitentiary, and while there his finger prints had been taken, and at his trial W. H. Bennett, who testified that he was an expert in the comparison and identification of finger prints, having devoted many years to that study, further testified that the finger prints on the boxes were identical with those of appellant made at the penitentiary.

The witness Bennett .was subjected to a searching cross-examination by counsel for appellant, in the course of which he stated that the finger prints of no two persons .were identical. After eliciting this opinion, counsel for appellant moved to exclude it, and assigned as error the refusal of the court so to do.

We think that no error was committed in this ruling, for the reason, first, that counsel’s cross-examination brought out the answer. A second reason is that the witness stated that his answer was not an opinion, but was a fact, which had been demonstrated to be true after multiplied thousands of tests, and. that he himself had made innumerable tests without finding any finger prints of different individuals to be identical.

The case of Moon v. State of Arizona, 198 Pac. 288, 22 Ariz. 418, annotated in 16 A. L. B. 362, gives an interesting review of the development of the study of finger prints, and in the annotator’s note it is said that the courts have uniformly held that evidence as to the correspondence of finger prints is admissible to prove identity.

The cross-examination of the witness Bennett was devoted to an attempt to discredit the ability of the witness to distinguish between different finger prints, and, upon the redirect examination of the witness by the prosecuting attorney, the record contains the following-recitals : ‘ ‘ At this point the prosecuting attorney requested the court to permit the -witness to make a demonstration to the jury of his ability to compare finger prints. The court granted the request over the objections and exceptions of the defendant. Whereupon the witness, in the presence of the jury and with the assistance of the sheriff, had each of the jurors to place his left thumb on a piece of paper and sign his name thereto. Witness left the room, and the sheriff had Mr. W. T. Blaylock, one of the jurors, to place his left thumb on a piece of paper Avithout his name. Witness was called back and given these pieces of paper. After a few minutes, he said it was Mr. Blaylock’s finger print.”

Counsel for appellant asked the court to exclude from the consideration of the jury this demonstration, and to admonish the jury to disregard.it, and an exception was saAmd to the refusal of the court to so instruct the jury.

In the case of Moon v. State of Arizona, supra, the exact demonstration permitted in this case was made, and that action Avas assigned as error, but the Supreme Court of Arizona, after saying that there Avas no pretense that any trick or device had been employed, held that the test Avas proper to determine the skill of the witness in identifying finger prints.

In holding that no error had been committed, the court quoted from the brief of counsel for the State as follows: “To a layman, unsophisticated and incredulous, the idea that a finger laid on a clean sheet of paper, leaving no visible trace, thereby leaves a signature upon that paper, absolutely and positively, is a fact startling enough, but to see that finger print development under the finger-print powder is a demonstration impressive and convincing. It might well be that, until a juryman Avitnessed this demonstration, he Avould never believe that a plain porcelain slab would reveal the incriminating finger print, but, having seen their own finger prints developed from invisible impressions on sheets of paper, it was no longer a question of speculation; it was to the juryman a fact as commonplace as radium, or Avireless, or flying in the air.”

The court further said that, “for obvious reasons, the admission of experimental testimony must largely rest in. the discretion of the trial judge, and the exercise of this discretion will not he controlled, unless it is manifestly-abused.”- ... . .

See also the annotated case of State of Nevada v. Kuhl, 175 Pac. 190, 3 A. L. R. 1694, 42 N. W. 185, where a somewhat similar demonstration-..was made in the. presence of the jury, and the- testimony held admissible, after an extensive review of the authorities. . .

It has always been held competent to examine a witness who proposes to testify as an .expert, touching his qualifications as such.

At § 62 of the -chapter on “Expert and Opinion Evidence,” in 11 R. C. L. page 646, it is.said that: “He (the expert) may also 'be subjected to tests to determine the value of his opinion. Thus a handwriting expert has often, been required to pass. .on. other signatures submitted to him on the witness stand,-though, they were not relevant to the case.” There is;a. conflict in the authorities, however, as to. whether this exarnination should be confined to writings already in evidence. .

The presiding judge wrote, into the bill of exceptions-the following statement :• - ■

• “While the jury-were deliberating on the case of the State of Arkansas v. Willard Hopkins, and after the same had been submitted to them and after they had been deliberating for -a considerable period of time, without háving reached a verdict,- one of their number, Mr. Will Mullens, as I understand his name, came to me and asked me if they could find the defendant guilty and recommend in their verdict that his sentence be suspended during the time he remained within the jurisdiction of the court and supported his widowed mother. I told- him they could do this, but that it was not binding on the court.- This was in the absence of the defendant, his'counsel and the other jurors. Later in that day another member of the jury on this case, Mr. Eli Turner, as I understood his name, came tó me and asked me practically the same question that Mr. Mullens did, and I -told him that they could. This was also in the absence of the defendant, his counsel, and the other members of the jury. I further certify .that, shortly thereafter, the jury brought into open, court a verdict finding the. defendant guilty of burglary and not .guilty of grand larceny, with the recommendation in accordance with what I told them they could do.” . , .

The Attorney General has virtually confessed-that this proceeding was erroneous, and such we think it wás.

In the casé of Pearson v. State, 119 Ark. 152, 178 S. W. 914, a member of the jury addressed the following note to the presiding judge: “If.the jury should find the defendant guilty as ¡charged in the indictment with a recommendation for leniency, has your Honor the authority and will you assess his punishment at twenty-one years in the State Penitentiary, or for life?” The judge answered the above note by writing thereon the word “No.” When this communication was had between the court and the jury, neither the defendant nor his attorneys were present, and they knew nothing about the incident. It was there said:

“Therefore, treating the exception as true, the court erred in communicating with the jury ifi the manner set up in this exception, in the absence of the defendant and his counsel. This inquiry on the part of the jury and the answer thereto by the court was tantamount to giving instructions to the jury in the absence of the defendant and his counsel. If the appellant or his . counsel had been present, then they might have objected to the court’s answering the inquiry in any manner :at all, and they might have objected to the answer that the court gave. It is unnecessary to determine whether the answer was correct. In Kinnemer v. State, 66 Ark. 206, 49 S. W. 815, the court re-read the instructions to the jury in the absence of the defendant exactly as at first given before the jury retired to consider of their verdict. Of this procedure, we said: ‘ The instructions could not be re-read in his absence, for, although they were read exactly as at first given, the defendant had the right to know and see that such was- the case, and to he present for that purpose’ ” (citing authorities).

In the recent case of Wacaster v. State, 172 Ark. 983, 291 S. W. 85, it was said:

“Section 3192, Crawford & Moses’ Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is a disagreement, that they must require the officer to conduct them into court, where the information required must be given in- the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. ’ ’

See also Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997, and Aydelotte v. State, 170 Ark. 1192, 281 S. W. 369.

The court should not have charged the individual jurtfrs as to the law of the case in the absence of the accused and his counsel, and, for this error, the judg*ment must be reversed, and the cause will be remanded for a new trial.


author: Humphreys, J.

text:
    Gurdon v. DeLaughter.
    Opinion delivered June 13, 1927.
    Municipal corporations — right to reco-ver on appeal bond. — Where, on appeal to the circuit court from a conviction in a mayor’s court of violating a city ordinance, defendant failed to appear, and the appeal was dismissed and the cause remanded with directions to enforce the judgment, the city was authorized to bring suit against the surety on the appeal bond in a justice’s court; the remedy by suit in the circuit court, under Crawford & Moses’ Dig., § 7559, not being exclusive.
    Appeal from Nevada Circuit -Court; James IT. McCollum, Judg’e;
    reversed.

      G. W. Mattheivs, for appellant.
   Humphreys, J.

This is an appeal from the circuit court of Nevada County dismissing the complaint of appellant seeking to recover one hundred dollars from appellee as surety upon an appeal bond which he signed for J. 0. Shankles, who took an appeal, to tlie circuit court of Clark County from a judgment of conviction in the mayor’s court of Gurdon, Arkansas, for transporting whiskey, in violation of a city ordinance of said- city. When the case for unlawfully transporting liquor was called for trial in the circuit court of Clark County, J. C. Shankles failed to appear, whereupon his appeal was dismissed and the cause remanded to the mayor’s court of Gurdon, with directions to enforce the judgment. Immediately after giving the appeal bond J. C. Shankles left the city, so this suit was brought before a justice of the peace in Nevada County against appellee on the bond, where a judgment was obtained, from which judgment an appeal was duly prosecuted to the circuit court of Nevada County. The appeal bond contained a provision that, in case the appeal was dismissed, the obligors therein would pay the judgment of the mayor’s court, together with the costs of the appeal.

On trial anew in the circuit court of Nevada County the court decided that the exclusive remedy of appellant herein on the appeal bond was to have taken judgment by default thereon in the circuit court of Nevada County. Appellee had such remedy, and it was the most direct and appropriate one, but certainly not the exclusive one. Section 7559 of Crawford & Moses’ Digest provides for the recovery of lines, penalties and forfeitures by a municipal corporation in addition to any other mode provided, in any court of competent jurisdiction, Aside from this statute, the bond was an undertaking upon which suit' might be brought for a breach thereof wherever service could be obtained upon the obligors.

The judgment dismissing the complaint of appellant is therefore reversed, and judgment will be entered here for one hundred dollars and costs against appellee. ••


text:
    Fayette R. Plumb, Inc., v. Pharr.
    Opinion delivered June 13, 1927.
    1. Bills and notes — renewal notes. — In an action on notes-secured by a vendor’s lien against timber, evidence; held to support a finding- that new unsecured notes were -not given in satisfaction of the original secured notes, where the original notes were not taken up. ' •

      a. Bills and notes — renewal notes. — Without an agreement to that effect, the renewal of a note will not operate as a payment of an original note.
    3. Estoppel — vendor’s lien. — The payee of a note secured • by a vendor’s lien on timber is not estopped from setting up its claim against the purchaser’s grantee, by allowing timlber to be removed without objection, where the timber deed was recorded, since leniency on a part of the vendor in collecting the purchase money cannot relieve the purchaser or his grantee removing the timber from paying for it.
    4. Logs and logging — value op timber removed. — In an action on notes secured by vendor’s lien on timber, evidence held sufficient to support a finding that defendant, who was the purchaser’s grantee, had removed timber exceeding $4,000 in value.
    Appeal from Prairie 'Chancery Court, Northern .District; J. S. Gatewood, Special Chancellor;
    affirmed.

      Bogle & Sharp, for appellant.

      Emmet Vaughan, for appellee.
   Humphreys, J.

This suit was instituted on the 8th day of June, 1922, in the chancery court of Prairie County against H. C. Argo, Bank of Brinkley, Fayette R. Plumb, Inc., and D. H. Echols as receiver for H. A. Daggett & Company, to recover $4,000 and interest on two promissory notes evidencing the purchase .money for the timber on 2,300 acres of land in Prairie and Woodruff counties, particularly described in .the complaint, which timber they sold to H. O. Argo on the 8th day of October, 1919; and to enforce a vendor’s lien against such of the timber as had not been removed when the suit was brought, which lien they reserved in the timber, deed they executed to II. C. Argo. It was alleged in the complaint that H. C. Argo sold, said timber to H. A. Daggett & Company, and that H. A. Daggett & Company sold the timber on said tract and on another tract of about the same acreage to appellant, Fayette E. Plumb, Inc., for $15,000; that appellants had removed large quantities of timber from the land without paying the notes, not leaving sufficient timber in value to pay same.

The Bank of Brinkley had no interest in the suit further than that the said Daggett & Company had given them a lien on the timber to secure a note. H. C. Argo filed no answer. D. H. Echols, as receiver for H. A. Dag-gett & Company, filed an answer, and denied liability, and pleaded payment of the notes sued on; and appellant, Fayette E. Plumb, Inc., filed an answer, in which it denied all liability, and pleaded payment of the notes. The latter-named appellant is the only one who made any defense to the action. H. C. Argo and H. A. Daggett & Company are, and were, insolvent on the date of the filing of the suit.

The cause was.submitted upon the pleadings and testimony adduced by the respective parties, which resulted in a finding by the court that H. C. Argo and H. A. Dag-gett & Company were insolvent, and that appellant, Fayette E. Plumb, Inc., had removed timber exceeding in value the amount sued for, and were liable to appellees to the amount of their claim in the sum of $4,000, with interest thereon at the rate of 6 per cent, per annum from the 8th day of October, 1919, to the date of the trial; and a consequent judgment in favor of appellees against appellant, Fayette E. Plumb, Inc., in the total sum of $5,577.33, from which is this appeal.

.Appellant first contends for a reversal of the decree on the alleged ground that, according to the undisputed testimony, the lien notes executed by Argo to appellees for the timber were paid and the lien extinguished by their acceptance of the notes from him secured by other collateral. The.testimony referred to and relied upon by them to sustain this contention consists of a ’letter written to II. C. Argo by W. E. Pharr on June 8, 1921, acknowledging the receipt of the $4,000 note and four hundred shares of H. A. Daggett Company stock, together witli Argo’s statement tliat the stock had a par value of $10,000 at the time it was placed as security to Pharr; and the two following excerpts from the testimony of Mr. Argo :

“At the request of W. R. Pharr my personal notes were given Avitliout security in satisfaction and in lieu-of the lien notes referred to, and, as nearly as I can recall, the transaction occurred shortly after the maturity of the lien notes, as, according.to Mr. Pharr, the personal notes were wanted in.order to substitute them for the lien notes.”
“I do not remember the date of the unsecured notes. They were mailed to W. R. Pharr at Memphis, Tennessee. Upon arriving at the conclusion later that my financial responsibility was insufficient to afford security for payment of the. substituted personal notes, I voluntarily gave W. R. Pharr all the shares of stock representing my interest in the H. A. Daggett Company. This was accepted by him' and understood at the time as being ample security. ’ ’

We think learned counsel are mistaken in concluding that'.the testimony of Mr. Argo stands in the record undisputed, to the effect that he paid the notes sued upon by giving his personal note in lieu of said lien notes. It is reflected by the record that the notes sued upon, or lien notes, Avere never surrendered by W. R. Pharr to Mr. Argo in exchange for his personal note with neAV collateral attached. W. R. Pharr testified in substance that the original notes were never paid or intended to be paid by the subsequent notes given to him by H. C. Argo.; that the subsequent notes Avere reneAval notes given him by Pharr so that he might pledge them from time to time to his banker as collateral; that they Avere merely accommodation paper, because he could not pledge past due paper to the bank as collateral; that, after he had used the reneAval notes from time to time, the bank refused to take them, and W. R. Pharr attached the H. A. Daggett & Company stock ás collateral so that he could use same Avith his banker; that, soon after the stock Avas attached, it was ascertained that it was Ávorthless, and he was unable to use the renewal notes as collateral security with his banker. The following questions and answers appear in the testimony of W. R. Pharr:

“Q. Have you ever hypothecated it? (Referring to the first renewal note). A. Yes, I used it as collateral from time to time. As the notes would fall due and payments were not paid, they would have to be renewed, and when the note would fall due it Avould have to be returned, and Argo would send me a new note for 90 days, and from time to time that one would be renewed, but never was there a payment made, and they were renewed so many times and I had so many notes that one of them got misplaced. Neither of the notes, principal or interest, have been paid. Q. Mr. Argo delivered to you some stock of the H. A. Daggett Company as security, did he not? A. These notes as they fell due and I was unable to collect, I was able to use as collateral for a while, but they being refused so many times, they soon lost any value they might have at the bank, and I told Mr. Argo that I would not push him in any way, and if he Avas not able to make any payments, I would renew the notes, but the bank refused to accept them as collateral, then he said he would give me some additional security. The stock in a short time Avas not Avorth the paper it Avas Avritten on, as the concern Avent out of business.”

In the letter relied upon the neAV notes referred to are called renewal notes. The fact that the original notes were not taken up but left in the possession of W. R. ■Pharr- is a strong circumstance tending to support the theory that the new notes were not intended as payment of the old notes. Another strong circumstance tending to support the theory that the neAV notes were not given in satisfaction of the old notes is that it Avould be unreasonable for one to accept unsecured notes in payment of secured notes.

After a careful reading of the record Ave are unable to say that the finding of the chancellor to the effect that the neAV notes were not given in liquidation of the original or secured notes is contrary to a clear preponderance of the evidence. The governing rule of law is that, without an agreement to that effect, the renewal, of a note will not operate as a payment of the original note. Griffin v. Long, 96 Ark. 272, 131 S. W. 672, 35 L. R. A. (N. S.) 855, Ann. Cas. 1912B, 622; First National Bank of Helena v. Solomon, 170 Ark. 555, 280 S. W. 659.

Appellant’s next contention for a reversal of the decree is that the appellees estopped themselves from setting up any claim against appellant, Fayette R. Plumb, Inc., by allowing it and its predecessors to remove the timber without objection by providing in the timber deed that the timber should be removed and the land turned back from time to time for agricultural purposes, before the maturity of the lien notes. A lien was retained in the deed upon the timber for the purchase money, and it was the duty of those removing the timber to pay the purchase money or to reserve enough out of the proceeds to satisfy the lien. Leniency on the part of appellees in the collection of the purchase money did not and could not have the effect of relieving the parties who removed the timber from paying the purchase money therefor. The timber deed was on record, and the appellants had constructive notice of the existence of the lien. None- of them were innocent purchasers. There is nothing in the record tending to show that appellees induced appellants to buy the timber on representation that they had waived or released, their claim to the purchase money therefor.

' Appellant’s last contention for a reversal of the decree is that the testimony fails to show that appellant, Fayette R. Plumb, Inc., cut and removed - as ■ much as $4,000 worth of timber off the land. Said appellant put up a mill .on the property and cut and removed the hickory-timber off the land for two or three years. The tésti-mony reveals that they paid $15,000 for hickory timber on this tract and an adjoining tract of about the same size, and that there was about the same amount of hickory timber on each tract. The logical inference is that appellant cut and removed practically all of the hickory timber off the land, for which it paid $7,500.in the tree.

No error appearing, the decree is affirmed.


text:
    Phillips v. Baker.
    Opinion delivered June 13, 1927.
    1. Equity — -time por trial. — In a suit in equity plaintiffs are entitled, under Crawford & Moses’ Dig1., § 1288, to 90 days, after issues are made up, in which to get ready for trial, and refusal to grant such time is error.
    2. Equity — EQUITABLE proceedings. — Issues.joined in the chancery court to obtain a permanent injunction are equitable proceedings, within Crawford & Mioses’ Dig.; § 1288, allowing 90 days to prepare for triál after pleadings are made up.
    Appeal from White Chancery' Court; Frank II. Dodge, Chancellor;
    reversed.
    . Avery M. Blount, Golden Blount and Grace D. Blount, for appellant.

      Cidbert L. Pearce and John E. Miller, for appellee.'
   Humphreys, J.

This is a suit in equity brought on the 4th day of April, 1927, in the chancery court of White County, by appellants against appellees to permanently enjoin the Higginson Special School District in said county from selling and delivering bonds in the sum of $20,000 for the purposé of. refunding its existing bond issue and redeeming outstanding and past due warrants upon the following alleged grounds:

“ (1). There was no legal meeting held by the board of directors authorizing the bond sale. (2). That there ’was no legal notice given that such a meeting was to be held. (3). That the proper records of the alleged meeting at which it was claimed that the resolution was passed directing the sale of the bonds was not made. (4). That the alleged order authorizing the sale of the bonds was not made by a majority of the legal qualified and acting members of the board of directors. (5). That the Hig-ginson Special School District had no legal authority to offer for sale the bonds or certificates of indebtedness. (6). That the issuance of the bonds was forbidden by this court. (7).' That the bonds were not advertised for sale as required by law, but that the members of the school board acted in collusion with R. C. Helbron,and sold said bonds at a private sale, and that the meeting by which it was claimed the bonds were sold was conducted in a manner to discourage and prevent other parties from purchasing said bonds.”- .

Appellees filed an ansAver, denying seriatim' the material -allegations in the complaint.

On application to the circuit judge in vacation, immediately after filing the suit and during the absence of the chancellor from White 'County, the following restraining order was issued:

“It is therefore ordered, adjudged and decreed that the defendants, acting as members of the Higginson Special School District, and' each of them ar'e hereby restrained and enjoined from advertising- and offering for sale or selling, either by private sale’ or public sale, any certificates of indebtedness or bonds of the Higginson .Special School District, on April 7, 1927, or any other date, until this cause is heard by the White Chancery Court. And the defendants, B.. L. Smith, as county clerk of White County, W. C. Ward, as county treasurer of White County, and Ben D. Smith, as circuit clerk and ex-officio recorder of White County, are restrained, enjoined and forbidden to receive, register or record any bonds or certificates of indebtedness or any deeds of trust or mortgages executed by the board of directors of the Higginson Special School District, by reason of any sale made on April 7, 1927, or any other date, until this cause can be heard by the White Chancery Court.”

On the next day, and during vacation, the chancellor set aside the temporary restraining order of the circuit judge, in so far as it restrained the sale of the bonds, and set the case down for final hearing on May 4, 1927, which was an adjourned day of the chancery court, all over the objection and exception of appellant.

When court convened on May 4 such of the appel-lees as had not filed answers theretofore filed their respective answers. Appellees then insisted upon an immediate hearing of the cause. Appellants objected, and protested against proceeding with the hearing of the cause until the next regular term of the chancery court, on June 13, 1927, or before the issues had been made up ninety days. Tliey filed a written motion for a continuance, which was overruled by the court, over their objection and exception. The court , then offered to set the case down for a hearing’ before the chancellor in chambers at Little Bock between May 9 and 14,1927, but appellants insisted upon their right not to proceed with the trial until ninety days after the issues had been made up, and declined to finally submit the cause in vacation as suggested by the court. The court then ordered appellants to proceed with the trial, which they declined to do, whereupon the temporary restraining orders were dissolved and their complaint dismissed, over their objection and exception, from which judgment an appeal--has been duly prosecuted to this court.

This suit is bottomed upon act No. 62 of the General Assembly of 1927, passed for the purpose of obviating the rule announced by this court in the case of Phillips v. Baker, 172 Ark. 726, 290 S. W. 371, decided and handed down on January 31,1927, to the effect that said district could issue bonds only to refund outstanding bonds, interest and expenses incident thereto, and not to pay for repairs and operating expenses of the school. The allegations in the complaint challenge a compliance with- said act No. 62 in selling and attempting to-deliver the bonds, and also allege that the- members of the school board acted collusively and sold bonds at private sale, and seek to permanently enjoin the delivery thereof to the purchaser.

After the issues were made up, appellants were entitled, under § 1288 of Crawford & Moses’ Digest, to ninety days in which to get ready for trial. Harnwell v. Miller, 164 Ark. 15, 259 S. W. 387; Issues joined in a chancery court in an effort to obtain a permanent injunction are equitable proceedings, and come within said section of the statute allowing ninety days to prepare for trial after the pleadings are made up.

On account of the error indicated the judgment- is reversed, and thé cause is remanded for a trial of the issues joined by the pleadings.


author: Kirby, J.

text:
    Evans v. Veteto.
    Opinion delivered June 13, 1927.
    VENDOR AND PURCHASER — AGREEMENT TO PAT INCUMBRANCES. — Under an agreement by which the purchaser was to pay off .only incum-brances against land .as shown by the records, the vendor could riot recover against him, under a claim' of vendor’s lien, the ' amount'which the vendor paid' to procure the release from 'án unrecorded mortgage. ■
    Appeal from Olay Chancery Court, Eastern District; G. M. Buck, Special Chancellor;
    reversed.

      Ward é Ward, for appellant.

      W. E. Spence, for appellee.
   Kirby, J.

Appellee brought this suit to enforce a vendor’s lien for. the balance of the purchase money claimed to be due on a tract of land sold to D. F. Evans, and to cancel a mortgage of said lands by D. F. Evans and - wife to their son, Mack Evans,, as a fraudulent conveyance. '

• The testimony shows that the parties agreed upon a sale and purchase of the lands about the first of September, 1923, for $2,700, the appellee-agreeing to convey the lands free from incumbrances and furnish an abstract of title to date.

A memorandum of the agreement was executed, showing the deed was to be made to Evans and left in escrow with the Nimmons Bank until the first of December, 1923, at which time the purchase money was to be paid and the deed to be delivered, otherwise the deed was to be returned to the grantor.

After the sale was agreed on, Veteto insisted on advancing the date of. payment, as he had need of some money to pay on a ear he had purchased. Evans refused this request, but agreed to pay $450 upon the deed being made and put in éscrow, which he did.

On the first day of December Evans was ready to pay the balance of the purchase money, and demanded the deed: Veteto was not able to make the conveyance on account of mortgages against the land. After several conferences Evans demanded that Veteto pay him interest on his money advanced, if he was not ready to deliver the deed. Upon his refnsal to do this, Evans demanded return of his money, hut was unable to get it. Yeteto said he had not been able to clear the title, there being a mortgage, nor was he able to get the $450. to return to Evans, and kept insisting that he should keep this payment and let Evans take the land ¿nd pay off the claims against it, and also for the abstract of title. Evans, after an examination of the records, again demanded the return of his money, preferring not to complete the purchase. Said that Yeteto wanted him “to take the land, pay what was against it and let him out of it; was very anxious to do this, and deliver the deed.” Evans thén inquired, and found, the land had been rented to Blackburn, and agreed, to take the land, and the deed was delivered to him on April 7, 1924.

.Veteto told him to see Blackburn, and “tell him I am out. of'it; the land belongs to you.” Blackburn paid him the rent for 1924. .He diaV the deed recorded, arranged to pay off the Hurst mortgage, and paid up the taxes and the fee for making the abstract. ■ •

In February, 1925, Yeteto asked witness if he desired to sell the land, and was told that he did not know, but would let him know, and Yeteto came back in about two weeks and wanted to'pay back the $450 and take the land back. Evans told him that be' had run after him all winter, had a good deal of trouble about it, and thát he wouldn’t do it, and beside he had borrowed some money on it. He stated that Yeteto had.never claimed frpm*the time of the delivery of the deed until suit was brought that there was any more purchase money due.

The testimony of appellee tends to show- that there were two. mortgagee against the-land, one to Powell Bros, for $1,000; that he-understood it was to be paid off by Evans in purchasing the land; that he did not know the Powell mortgage was not of.record until after February, 1925. He then claimed to have satisfied the Powell mortgage, and brought this suit for the payment of the amount of it as balance of the purchase money. The chancellor found in his favor, and rendered a decree for $1,000, fixing it as a lien against the land, but declining to cancel the mortgage to Mack Evans as fraudulent, and from this decree this appeal is prosecuted.

The undisputed testimony shows that the contract for the-sale of the land as first made was not performed, and that a new agreement was entered into under which the deed was delivered to Evans, the purchaser. He claims this Avas done upon his agreement to pay the incumbrances against the land as shown by the records, the taxes, and the cost of making the abstract, in addition to the payment of the $450 first made.

The appellee insists that there Avere íavo mortgages against the land; that he understood that they Avere both recorded, and that Evans agreed to pay the amount of these incumbrances, and had not paid the PoAA’-ell mortgage, which Avas not in fact recorded, and that he still owed this amount to him as part of the purchase money, he having paid off the PoAvell mortgage.

If the purchaser agreed only to pay off the incum-brances against the land as shoAvn by the records, he Avas in no wise responsible for the payment of the Powell mortgage, nor could the seller, Yeteto, by paying the Powell mortgage and procuring a release therefor, recover the amount from Evans as part of the purchase money of the land, since it did not constitute a lien or incumbrance against the land, not being-recorded.

The chancellor’s finding, under the new agreement for the purchase of the lands, that Evans was bound to the payment of the amount of the Powell mortg’age as part'of the consideration for the land, is clearly against the preponderance of the testimony, in our opinion. The testimony tends to sIioav, too, that the purchaser paid about all the lands were worth, and it is undisputed that Evans insisted upon rescinding the sale and having his money paid back to him several times after his examination of the records and discovery of the amount of the incumbrances against it.

The decree will be reversed accordingly, and remanded with directions to dismiss the complaint for want of equity. It is so ordered.