author: McCulloch, C. J. McCulloch, C. J.,

text:
    Patterson v. Adcock.
    Opinion delivered February 12, 1923.
    1. Certiorari — act op judge in ministerial capacity. — A county court or judge thereof in making an order for an election as to the question of restraining the running of stock in the county in pursuance of a petition of voters to that effect, as provided hy Sp. Acts 1921, p. 1, and in entering, after the election, the order declaring such law to he in effect, acts in a ministerial, and not in a judicial or quasi judicial, capacity.
    2. Certiorari — ministerial acts. — Certiorari will not lie to correct ministerial acts, even though involving discretion.
    3. Certiorari — review op court’s judgment in stock law election. — If the county court - has jurisdiction to hear a contest over the result of a stock law election held under Sp. Acts 1921, p. 1, which is not decided, a judgment of that court sustaining a demurrer to and dismissing a petition attacking the legality of the election was not void on its face, however erroneous it may have been, and a review of it must be by appeal to the circuit court, and not by certiorari.
    4. Certiorari — effect of quashing. — Though the Supreme Court will quash a writ of certiorari, seeking to bring up for review proceedings of a lower court, where appeal, and not certiorari, is the proper remedy, it will not affirm the order of the lower court where such order was not a judgment but merely a ministerial act, such as an order of a county judge declaring a stock law to be in effect as provided by Sp. Acts 1921, p. 1.
    5. Animals — contest of stock-law elections. — Since Sp. Acts 1921, p. 1, providing for a special stock law election, does not provide for hearing of such election contests, and no other statute makes provision therefor, the county court has no jurisdiction to hear'such contest.
    6. Animals — contest of stock-law elections. — Where nothing is involved except a contest of the result of a stock-law elec- ' tion, the circuit court has jurisdiction, but where property or contractual rights are involved, the chancery court likewise has jurisdiction to determine such election contest and to afford relief where the statute has not been properly put into force.
    7. Statutes — validity of stock law. — Sp. Acts 1921, p. 1, providing for a special election on the question of restraining stock, is not invalid for failure to provide for a contest of such election, as a remedy therefor exists under the general laws of the State.
    Appeal from Miller Circuit Court; George B. Haynie, Judge;
    reversed.

      B. E. Carter and J. M. Carter, for appellants.
    1. The demurrer to the petition for certiorari should have been sustained. The writ will not lie for the mere correction of errors or irregularities in proceedings in the inferior court. 61 Ark. 605; 144 Ark. 169, 35 Ark. 95; 25 Ark. 213; 47 Ark. 511; 70 Ark. 71; 37 Ark. 318; 80 Ark. 200.
    2. The count}! .court had jurisdiction of the whole proceeding. See act No. 4, Special Acts 1921, approved January 21, 1921, section 1.'

      3. Petitioners had the right of appeal open to them under the general statute, and it is immaterial that the special act did not specifically provide for an appeal. 'C. & M. Digest, § 2287; 134 Ark. 292.
    4. The circuit court erred in overruling' the motion to quash the writ' and to affirm the judgment of the county court, putting in force the stock law in the township. 147 Ark. 581.

      Louis Josephs, James D. Head and Pratt P. Bacon, for appellees.
    1. Since the demurrer was general, it was proper to overrule it, if the complaint stated, a cause of action in any particular, even though defectively. If, as alleged in the complaint, the county court had no jurisdiction to order the election, because twenty-five per cent, of the voters of the township had not petitioned in writing therefor, and if it exceeded its jurisdiction in ordering the election, this entitled appellees to the writ of certiorari. 61 Ark. 605; 126 Ark. 125. The circuit court has the right, and it was proper for it. to hear evidence de hors the record, to determine the jurisdiction of the county court in the particulars alleged in the complaint. C. & M. Digest, § § 2237, 2238; 126 Ark. 125, 134; 153 Ark. 188.
    2. The ooiiiplaint alleges, and the demurrer admits, that the appellant failed to give the notice of the election for the time and in the manner*required by the statute. See § 2 of the special act. -This notice was a necessary prerequisite to a valid election. If it was not valid,, all proceedings grounded on the election were void, and the county court exceeded its jurisdiction when it issued the restraining order. 116 Ark. 291; 153 Ark. 50; Id. 188. The notice required was jurisdictional. 83 Ark. 542, see also 94 Ark. 54. This is a special statutory proceeding, and jurisdictional facts must affirmatively appear of record. 51 Ark. 39; 65 Ark. 142; 103 Ark. 405; 117 Ark. 258; 129 Ark. 207; 134 Ark. 100.

      3. The county court was' performing ministerial dutiés under this act, and, that being true, there was no right of appeal. 153 Ark. 50.
    4. Appellees appealed from the order and judgment of the county court sustaining a demurrer to their petition, and also from the restraining order, and after-wards obtained the certiorari issued in this case, and at all times have prosecuted both remedies. They cannot therefore be held to have made an election of one remedy over the other, as was done in the Bertig case, 147 Ark. 583; and if the judgment here is reversed, appellees should be left free to prosecute their appeal. 15 Cyc. 262; 71 N. W. 634.
   McCulloch, C. J.

There is a special stock law in Miller County, enacted by the General Assembly of 1921 (Special Acts 1921, p. 1), which provides, in substance, that whenever twenty-five per cent, of the electors of any township shall petition the county court for the privilege to vote on the question of restraining’ stock in that township, “the county court, or the judge thereof, shall make an order for an election in such township,” the election to be held at the general election, if there be one within six months of the date of the filing of the petition, and if not, at a special election to be held within ninety days after the filing of the petition; that notice of the election shall be given by. publication in a newspaper, and that the election shall be held in accordance with the general election laws of the State. The statute further provides that the judges of the election shall make returns to the county election commissioners, who shall canvass the returns and make and file a certificate of the result with the county clerk, and publish the same for one insertion in a newspaper having a circulation in the township. It is further provided that, if a majority of the vote be in favor of restraining stock in the township, “the county court, or judge thereof, shall, immediately after the filing of said certificate by the county election commissioners. make ail order restraining such animals specified in the petition from running at large in said township.”

A petition was filed with the county court of Miller County, asking that an election be held in Sulphur Township, pursuant to the terms of said statute, for the purpose of putting the law into effect in that township. An election was ordered by the county judge, or county court, and was held in accordance with the order, the majority of the votes, as certified by the election commissioners, being in favor of putting the law into effect in the township.

Immediately after the filing of the certificate by the election commissioners, appellees, who are residents and property owners in Sulphur Township, filed in the county court a petition alleging errors, irregularities and fraudulent voting in the election, and alleging that a majority of the qualified electors voting at the election did not vote in favor of putting the law into operation. The appellants appeared in response to this petition and asked that they be made parties for the purpose of resisting it, which was done.

Appellants demurred to the petition in the county court on the ground that there was no authority for the county court to hear a contest of the election, and the county court sustained the demurrer, and entered an order, in accordance with the statute, restraining the running at large of stock in the township. Appellees then filed their petition in the circuit court of Miller County, praying for a writ of certiorari to bring up and quash Ihe order of the county court ordering the election and entering the order restraining the running at large of stock. They alleged in their petition that the order of the county court for the election was void for the reason that twenty-five per cent, of the electors of Sulphur Township had not petitioned the court, and that the election was void for the reason that notice had not been published in the manner prescribed by the statute.

Appellants appeared and demurred to the petition, and the court overruled the demurrer, and appellants stood upon the demurrer without pleading further, whereupon the circuit court entered a judgment quashing the orders of the county court, and an appeal has been prosecuted from that judgment.

The county court, or the. judge thereof, in making the order for the election and entering the order pursuant to the election acted ministerially, and not in a judicial or quasi-judicial capacity. Thompson v. Trice, 145 Ark. 143; Capps v. Judsonia-Steprock Road Improvement District, 154 Ark. 46.

The order restraining the running at large of stock was a mere entry of the result of the election as certified by the election commissioners, and was likewise ministerial in its nature.

Certiorari will not lie to correct a purely ministerial act, even though the performance of the act involves- discretion. Pine Bluff Water & Light Co. v. Pine Bluff, 62 Ark. 196; McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568: State v. Railroad Commission, 109 Ark. 100; Hall v. Bledsoe, 126 Ark. 125.

The statute contains no provision conferring upon the county court authority to hear a contest over the result of the election, but if that court-possesses jurisdiction to hear such a contest — which We do not deem it necessary to decide at this time — a review of the judgment in such a contest must be by appeal and not by certiorari, unless the judgment is void on its face. Pritchett v. Road Improvement District, 142 Ark. 509.

Conceding, as before stated, that the county court had jurisdiction to hear a contest, the judgment of that court sustaining the demurrer and dismissing the petition was not void on its face, however erroneous it might have been.

The general statutes of the State provide for appeals from all judgments of the county court, and an appeal might have been prosecuted under that statute. Crawford & Moses’ Digest, § 2287; Missouri Pacific R. Co. v. Conway County Bridge District, 134 Ark. 292.

It follows therefore that the judgment of the circuit court is erroneous, and the same is reversed, with instructions to sustain the demurrer of appellants and quash the writ.

It is so ordered.

McCulloch, C. J.,

(on motion to modify the judgment and opinion of this court). Counsel for appellants insist that the directions to the lower court should be to. quash the writ of certiorari which brought up for review the proceedings in the county court, and affirm the judgment of the county court, in accordance with the rule of practice announced in the case of Bertig Bros. v. Independent Gin Co., 147 Ark. 581.

In the case referred to there was a judgment of the circuit court, and, after reviewing it on certiorari, we found that the judgment was valid on its face, and we not only quashed the writ but affirmed the judgment. The difficulty, however, in the present case is that, according to the views expressed in the original opinion, there was no judgment of the county court to affirm. There was merely the order' of the county court, or county judge, made in a ministerial capacity and not in any judicial or quasi-judicial capacity. All that can be done now is to quash the writ of certiorari, as was directed in the former opinion and judgment of this court.

It is insisted, further, that we should decide whether or not the county court had jurisdiction to hear the contest, and, if not, where the jurisdiction vas vested.

The statute under which the proceedings were had in the organization of the district makes no provision for a contest before any court or other tribunal, nor is there any other statute which provides for a contest of an election of this kind. The provisions of the Constitution of 1874 and all of our general statutes on the subject of contests of elections relate solely to contests of 'elections of public officers. It is clear therefore that, since there is no statutory provision for hearing a contest of this sort in the comity court, such jurisdiction cannot be there exercised. In the former opinion we refrained from passing on that question, but we deem it proper now to extend the opinion by expressly holding that there is no authority for such a contest in the county court.

The further inquiry presents itself as to where the jurisdiction rests. In Harrington v. White, 131 Ark. 291, we permitted the exercise of jurisdiction in such a ease by the chancery court, without deciding whether the jurisdiction should properly have been exercised by the circuit court or by the chancery, court. All unassigned jurisdiction under the Constitution is vested in the circuit court (art. 7, § 11, Constitution of 1874), and it has been held by this court that jurisdiction in election contests not otherwise provided for fall within the jurisdiction of the circuit court under this provision of the Constitution. Payne v. Rittman, 66 Ark. 201; Whittaker v. Watson, 68 Ark. 555; Sumpter v. Duffie, 80 Ark. 369.

It follows from these decisions that, where nothing is involved except a contest of the result of an election, the circuit court has jurisdiction. This, however, does not exclude the jurisdiction of the chancery court under all circumstances. On the contrary; we are of the opinion that where property or contractual rights are involved in the result of an election putting into force a statute like the one involved-in this inquiry, the chancery court has jurisdiction to hear and determine the contest and to afford relief where the statute has not been properly put into force. 8 Standard Proc. p. 16; Red River Furnace Co. v. Tenn. Central R. Co., 113 Tenn. 697; Pickett v. Russell, 42 Fla. 116; Wilton v. Pierce County, 61 Wash. 386.

It would be premature to discuss now the limitations upon the exercise of this jurisdiction, but we merely content ourselves by deciding that either the circuit court or the .chancery court has jurisdiction under certain circum- ' stances to hear and determine a contest like the one involved in this case.

We do not think that the validity of the statute authorizing the formation of the district is affected by the fact that the statute makes no provision for a contest-of the election. If a remedy exists in any of the courts under the Constitution and general laws of the State, the spécial statute is not invalid by reason of its failure to provide a remedy.

'The motion to modify the judgment of this court is overruled.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Dormon Farms Company v. Stewart.
    Opinion delivered February 12, 1923.
    1. Mines and minerals — oil and gas lease — mutuality.—An oil and gas lease giving the right to explore for oil for five years, and providing that, if no well is commenced within the first year, a rental charge of 50 cents per acre paid on or before the expiration of the year would keep the lease in force for another year, and that similar payments each year thereafter would continue the lease in force, though no well was started, held not void for want of mutuality.
    2. Mines and minerals — payment of rental to depositary. — Under an oil and gas lease which reserved an annual rental, and provided that any assignment or sale by the lessor should not be binding on the lessee until notice in writing had been given him, held that the lessee and his assignees had a right to make the rental payments to the lessor by leaving them at a depositary bank named in the lease for the credit of the lessor until advised by writing of a sale of the land.
    3. Mines and minerals — assignment of oil lease. — An assignment of an oil and gas lease which did not describe the lands involved, but referred to a previous recorded lease in which the lands were described, held a sufficient description.
    4 Tender — sufficiency.—Under an oil and gas lease providing that any assignment or sale of his interests by the lessor shall not be binding on the lessee until after notice in writing had been given hijn, held that, though the lessor subsequently sold the property, the lessee and his assignees, in the absence of any notice of the sale, by tendering the rental to the lessor’s designated bank, made a sufficient tender to keep the lease in force.
    Appeal from Howard Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      J. S. Butt and W. P. Feazel, for appellant.
    1. While equity usually abhors forfeitures, this does not .appear to be true of oil and gas leases, and the courts, where there is a failure of development, will usually cancel such leases upon slight defaults. 152 Pac. 597; 157 Pac. 308; 127 App. Div. 761; 112 N. Y. Sup. 13; 119 La. 793; 22 La. Ann. 280; L. B. A. 1917-B, 1190; 29 Olda. 719; 26 Olda. 772.
    2. In this case the contract is immaterial and void. If not binding on the lessee, it is not binding’ on the lessor, and may be canceled at his option. 32 Tex. Civ. App. 47; 95 Tex. 586; 134 La. 701; 25 Okla. 809; 138 Am. St. 942; 47 W. Ya. 107; L. B. A. 1917-B, 1184; Thornton on Oil & Gas, § 270; Icl. §§ 54-62.
    3. It was incumbent on appellees to designate the particular part of the land embraced in the original lease upon which they desired to pay rent. This they failed to do. Thornton on Oil & Gas, § 328; 220 S. W. 140.
    4. There was no proper tender. Payment of rent to Goodlett, with knowledge that he had transferred the land and had im right to receive the rent, was not sufficient. Harrell v. Saline Oil £ Gas Go., 153 Ark. 104.

      Thomas, Frank, Milam & Touchstone, of Dallas, Texas, W. C. Rodgers, and J. H. Brennan, of Wheeling, W. Va., for appellees.
    1. The rule' which appellant seeks to invoke with reference to enforcement of forfeitures in oil and gas contracts applies to the peculiar nature of the mineral; but where, as in this case, there is no question raised as to adjoining wells taking oil from the land by drainage, the reason for the rule does not exist. 91 Ark. 407, 418; 109 Ark. 465-6-7; 101 Ark. 331, 335; 126 Ark. 389, 399; 141 Ark. 280, 285; 139 Ark. 542, 556; 155 U. S. 665. The liberal construction sought by appellant has never been carried to the extent of forfeiting rights of a lessee who has faithfully kept his part of the contract. 155 II. S. 665. Moreover, the facts-in the case relied on by the appellant are substantially different from the facts in this case. 112 Ark. 342, 352; 123 Ark. 365, 368; 150 Ark. 43, 48.
    2. To sustain appellant’s contention, it would be necessary to eliminate portions of the contract, such as the clause authorizing- the payment in cases of partial assignments, and the clause requiring the furnishing of a written transfer before the lessee or assignees would be justified in paying the rentals to any one other than the original owner, and the .stipulation that the down-payment applies as a consideration to.every part of the lease. The courts will not malee or modify contracts for parties. 66 Ark 295; 111 Ark. 173. No useful purpose could be served by the lessee at the time of making the deposits stating -what part of the lease he owns. Therefore the law does not require it. 96 Ark. 376; 132 Ark. 289; 133 Ark 16: 104 Ark. 119; .109 Ark. 465; 114 Ark. 359; 127 Ark. 261; 141 Ark. 235.
    3. The original lease and the various assignments of parts thereof were recorded. Appellant, when it purchase from Goodlett, took with notice of the provisions of the lease and these assignments. 14 Ark. 69; 15 Ark. 184; 35 Ark. 100; 50 Ark. 322; 103 Ark. 425'; 107 Ark. 484; 97 Ark. 397; 58 Ark. 84; 23 Ark. 735.
    4. Appellant’s contention that the royalties mentioned in the lease must be the “sole and moving consideration for the execution of the contract” is not borne out by the instrument itself, which provides, 'among other things, that “the consideration first recited herein, the down-payment, covers not only the privilege granted to the date when said first rental is payable, * * * but also the lessee’s option of extending that period * * * and any and all rights conferred.” The primary consideration is thereby tied to every part of the contract, ¡and the court will not inquire into the adequacy of the consideration. 145 Ark. 310; Rogers v. Magnolia Oil $ Gas Go156 Ark. 103; 33 Ark. 97; 99 Ark. 233; 127 Ark. 28; 23 Ark. 735; 106 Ark. 1. A primary consideration of one dollar is sufficient consideration. Mere inadequacy of consideration is not a ground for cancellation. 23 Ark. 735.
    5. The assignment to Carmen Oil Company was not void for uncertainty of description, since its assignor’s title was. duly recorded and contained a correct description, and reference thereto was añade in the assignment to Carmen Oil Company. 6 Ark. 191; 28 Ark. 75; 30 Ark. 513.
   Smith, J.

On January 20, 1920, W. V. Goodlett, who was then the owner of 640 acres of land in Howard County, executed to Earl A. O ’Hara an oil and gas lease thereon. On November 20,1920, O’Hara executed to the Superior Producing and Refining Company an assignment of the léase on 200 acres of the land; and that company, on September 19, 1921, reassigned the lease to the 200 acres to the Carmen Oil Company. One of the questions in the case is whether this last assignment is void for the reason that it fails to describe the land. The lease to O’Hara was filed for record January 20, 1920; the assignment to the producing company was filed for record December 9, 1920; and the assignment from the producing company to the Carmen Oil Company was filed for record September 24, 1921.

On January 30, 1920, O’Hara assigned to W. P. Stewart the lease on 120 acres of the land. This assignment was filed for record December 20, 1920. On January 30, 1920, O’Hara assigned to C. A. Gates the lease in so far as it covered 160 acres of the land; and this assignment was filed for record February 20, 1920. On March 18, 1921, W. V. Goodlett, the original lessor, execarted and delivered to the Dormon Farms Company his warranty deed wherein he conveyed the entire 640 acres.

The original lease from G-oodlett to O’Hara contained the following provisions:

“If the estate of either, party hereto is assigned (and the privilege of assigning in whole or in part is expresslv allowed), the covenants herein contained shall extend to their heirs, executors, administrators, successors and assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assignment, or copy thereof; and it is -hereby agreed that, in the event this lease shall be assigned as to a part or as to parts of the above described lands, and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionaté part of the rents due him or them, such default shall not operate to defeat or affect the lease in so far as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rental. * * * *
“It is agreed that this lease shall remain in force for a term of five years from this date (January 20, 1920), and as long thereafter as oil or gas, or either of them, is produced from -said land by the lessee. In consideration -of the premises the said lessee covenants .and agrees, if no well -be soonmenced on -said land on or before the 20th day of January, 1921, this lease shall terminate -as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the Planters’ Bank & Trust Company bank at Nashville, Arkansas, or its successors, which shall continue as the depository, regardless of changes in the ownership of said land, the sum of $320, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first mentioned herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.”

The Dormon Farms Company brought this suit to cancel these leases, and, as ground therefor, alleged that the lease to 0 ’Hara was void for lack of mutuality, and that the assigned leases were void because the sublessees claiming them have not paid or properly tendered the rental provided for in the lease to O’Hara.

The lease to O’Hara was evidently prepared by an attorney whose chief concern was to protect the rights of O’Hara, the original lessee, and the sublessees. At any rate, the lease serves that purpose most excellently.

We think the contract was not void for the want oi mutuality. For the recited consideration the right to explore oil for five years was granted. It is true there was no requirement that the lessee develop the land during the first year; but, as appears from the portion of the lease quoted above, it was provided that the lease should expire on its first anniversary, unless on or before that date the lessee had paid the annual renewal charge of fifty cents per acre. A similar payment before each subsequent anniversary was essential to continue the lease in force. This annual payment of fifty cents per acre, aggregating $320 on the entire acreage, was a substantial and sufficient,-consideration to support the lease, although during the time covered by it no attempt was made to explore for oil. There was no allegation or proof that the land was in or near a developed field. We proceed therefore to a consideration of what we regard as the real question in the case, that is, whether the payments due on or before January 20, 1921, were made or properly tendered.

It will be observed that the lease to O’Hara expressly gave him the right to assign the lease in whole or in part, and provided that any assignee should have the same rights to the part assigned him as O ’Hara originally had to the whole tract. It will be observed also that the lease to 0 ’Hara imposed on him no duty to advise Groodlett as to any assignments he might make'. On the other hand, the lease did impose on Groodlett the duty of advising the lessee of any change in the ownership of the land, and provided that no change in the ownership or assignment of rentals or royalties should be binding on the lessee until after the lessee had been furnished with a copy of the transfer or assignment. It is not con-, tended that Groodlett ever advised the lessee of his sale and conveyance of the land to the .plaintiff, Dormon Farms Company.

The evident purpose of this provision was to leave the lessee in no doubt as to where the annual rental should be paid. The contract made the Planters’ Bank & Trust Company, of Nashville, the depository for the’ purpose of receiving this annual rental, and the lessee, or his assignee, had the right to make the payments there, and to the credit of Groodlett, until advised in the manner provided by the contract to make them otherwise. The plaintiff, Dormon Farms Company, was affected with notice of this provision, because the lease to O’Hara and the assignments thereof were in the chain of its title and were all of record at the time it received its deed from Groodlett.

The question whether the sublessees have continued in force the leases to themselves must be decided by a consideration of the facts attending the separate payments or tenders of payments by each of them, for the reason that the lease to O’Hara provides that the default of any assignee in the payment of the proportionate part of the rent due by him “shall not operate to defeat or affect the lease in so far as it covers a part or parts of said lands upon which, the said lessee or any assignee thereof shall make due payment of said rental.”

The conrt found the facts to be that the assignees had paid the annual rental provided for by the O’Hara lease, and dismissed the complaint as being without equity, except as to a portion of the land upon which the court found the rent had not been paid. The 0 ’Hara lease, in so far as it related to that portion of the land, was canceled, and, as there is no appeal from that finding, that tract passes out of the case.

As to the sufficiency of the description of the land in the assignment of the lease by the Superior Producing & Refining Company to the Carmen Oil Company, it may be-said that, while the land was not there described in terms, that assignment referred to the assigned lease to the Superior Producing & Refinino- Company in which the lands were described, and in this manner the descriptions were made definite and certain. 8 R. C. L., sec. 134, p. 1078; 18 C. J., sec. 67, p. 184; Cooper v. White, 30 Ark. 513.

On the question of the sufficiency of the tender made by the Carmen Oil Company the facts are as follows. In apt time that company wrote the bank at Nashville as follows: “Inclosed- please find New York draft for $100, which please place to the credit of W. V. Goodlett, the same being a 12 months’ rental of an oil and gas lease containing 200 acres and located in Howard County, Arkansas, due January 22, 1922, and described as follows : The E½ of the E½ of section 14, and all of section 13, except the E½ of the E½, all in T. 9 S., R. 29 west.” These were the only directions given by that -company as to the lands on which it wished to pay the rent. The letter stated the purpose of paying on 200 acres, but did not describe the particular land. Payments 'by the other sublessees were made in the same manner without describing the land. It also appears that when Gates remitted to the bank the sum of $80 with directions to credit the account of Goodlett, the bank returned the remittance and directed Cates to make the check payable to Dormon Farms Company; but Cates responded by again remitting the $80 to be credited to the account of Coodlett.

The remittances under the circumstances were properly made to the bank at the designated depository. No one questioned the right o£ the appellant, Dormon Farms Company, to appropriate these remittances, and the leases which were in its chain of title showed the lands on which each of the sublessees were offering’ to pay. They each remitted fifty cents for each acre covered by their leases. This was the sum required 'by the O’Hara lease, and the Dormon Farms Company should have assumed that the sublesses were offering to pay on the land respectively covered by their leases.

It was not contended that either Coodlett or the Dormon Farms Company had given Cates, or the other sub-lessees, notice of the conAmyance by Coodlett to the Dormon Farms Company, and the president of that company admitted that he Avould not haAm accepted the tender had it been made to him in the manner in which it was made to the bank. The bank was not a party to the lease contract except in so far as it consented to act as the named depository, and there Avas nothing about this contract which authorized the bank to direct the sublessees how payments should be made. The information given Cates by the bank Avas correct, but, had incorrect information been given by the bank, as a result of which the tender might have been made to the credit of one not entitled thereto, there is nothing in the record to show that the Dormon Farms Company Avould have been bound by the improper tender resulting from the erroneous direction .to the bank. Cates had the right, therefore, to disregard the suggestion of the bank, and the second remittances made by him to the bank must be regarded as a continuance of the original tender, which Avas made in apt time and manner.

What we have said about the tender by Cates and the Carmen Oil Company is decisive of the ease of the other sublessees.

It follows, from what we have said, that the court properly refused to cancel the leases, and that decree is affirmed.


text:
    Shannon v. State.
    Opinion delivered February 12, 1923.
    1. Homicide — instruction as to inference from fact of shooting. — In a trial for assault with intent to kill, an instruction that “if you believe from the evidence beyond a reasonable doubt that the defendant fired a pistol at” the assaulted person “you should find that he intended to kill” was erroneous in declaring intention proved as a matter of law from the fact of shooting.
    2. Homicide — evidence as to intent — Evidence that one accused of assault with intent to kill stated, “I have done what I intended to do,” and that he told the sheriff that he thought he had .killed a man, held not so conclusive of his intent to kill as to relieve from prejudice a charge that intent to kill was inferable as matter of law from firing a pistol at the assaulted person.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    reversed.

      Randolph & Cobb, for appellant.

      J. S.. Utley, Attorney General, Elbert Goodwin and Wm. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was indicted for assault -with intent to kill, alleged to have been committed by shooting one W. M. Emerson. He was convicted and given a sentence of ten years in tlie penitentiary, and lias appealed.

The evidence is amply sufficient to sustain the jury’s verdict, and there appears to have been no error committed, at the trial, except that the court gave an erroneous instruction, to which appellant duly excepted. The instruction is as follows:

“2. If yon are convinced from the evidence, beyond a reasonable doubt, that the defendant wilfully and with malice aforethought shot at the witness Emerson with intent to murder the said Emerson, then it would be your duty to find the defendant guilty of an assault with intent to kill, as charged in the indictment. If you believe from the evidence, beyond a reasonable doubt, that the defendant fired a pistol at Emerson, you should find that he intended to kill.”

The Attorney General concedes the instruction is erroneous, but contends that it was not prejudicial for the reason that the undisputed testimony shows that it was appellant’s purpose to kill Emerson.

The facts relating to the shooting, briefly stated,are as follows: Emerson was appellant’s tenant, and there was a disagreement about the amount of rent. Emerson had been twice ordered to vacate the premises. On the morning of the shooting appellant went to the house, and found Emerson still in possession. Emerson stated, however, that he was fixing to leave, whereupon appellant, without any provocation, drew a .45 caliber revolver from his pocket and commenced firing. The first shot was wild; but the second shot went through Emerson’s shirt and slightly burned his side, but inflicted no real injury.

Appellant did not testify, and offered no testimony in his own behalf, but sought by his cross-examination of the State’s witnesses to show that he was about to be assaulted by Emerson at the time he commenced firing. Emerson’s wife testified that when the second shot was fired she went to the door where appellant was standing and ordered him to leave, saying to him, “Go on away; you have done enough here already.” To this remarte appellant replied, “I have done just what I intended to do.” Appellant left the house, went to the sheriff’s office, and surrendered, and told the sheriff he had shot a man and thought he had killed him.

In defense of the court’s instruction the case of Coulter v. State, 110 Ark. 209, is cited. An instruction was there given reading as follows: “You are further instructed that every sane man is presumed to intend the natural and probable consequence of his acts.”

The instruction was held not prejudicial under the facts of that case, because Coulter admitted he shot the prosecuting witness with the- intent to kill him because he thought his life was in danger. Here appellant did not say to Mrs. Emerson that he intended to kill Emerson. It is only an inference that such was his purpose, drawn from the remark that he had done what he intended to do. The jury might have drawn some other inference from the remark, as, for instance, that what he intended to do was to make Emerson vacate by frightening lii-m,. or by inflicting some slight injury on him. It is true the testimony on the part of the State •shows that appellant stated in the sheriff’s office that he thought he had killed a man; but there was no testimony that he stated, in that connection, that he had done what •he had intended to do. He may have reached the conclusion that he had killed a man after having said to Mrs. Emerson that he had done what he intended to do.

Moreover, this testimony was not appellant’s admissions at the trial. It was testimony as to what appellant had said on the day of the shooting, and the jury may or may not have accepted it as true; and while, if believed, it would have supported the inference, in connection with the other facts and circumstances in proof, that appellant did intend to kill Emerson, still this was an' inference to be drawn by the jury from the testimony as a.matter of fact, and should not have been so declared by the court as a matter of law.

This identical question was so thoroughly considered by this court in the cases of Chrisman v. State, 54 Ark. 283, and Beavers v. State, 54 Ark. 336, that we need only to cite those cases to support the conclusion that the instruction was erroneous and prejudicial.

In the first of these cases the appellant, Chrisman, had assaulted one Stanfield with a knife, and had inflicted upon him a dangerous wound. The court said that, from the nature of the wound, and from the character of the knife, it could well be inferred that the knife was a deadly weapon. The court charged the jury that “if you believe from the evidence that the defendant assaulted and stabbed the prosecuting witness with a knife calculated ordinarily to produce death, without provocation, the law presumes that he did it with the felonious design to kill; and the burden of proof is on the defendant to show to .the contrary, either by proof on the part of the State or defense.”

It will be observed that this instruction merely imposed on the defendant the burden of proof to show that he did not intend to kill, if the jury found that defendant had assaulted and stabbed the prosecuting witness with a knife, calculated ordinarily to produce death, without provocation; while the instruction here complained of tells the jury to find that there was an intent to kill, if they found that appellant shot at Emerson. In other words, there was not a mere shifting of the burden of proof, but an absolute direction as to the inference to be drawn. Judge Mansfield. for the court, said: “Whether the defendant assaulted Stanfield with the specific intent alleged in the indictment was a question of fact which it was his right to have determined by the jury upon the whole evidence in the cause. But, under the instructions copied above, the jury were at liberty to presume the existence of a felonious intent to Mil from the facts mentioned in the court’s charge, without considering any others. We do not hold that it would have been improper to instruct the jury that the defendant should be presumed to have intended the natural and probable consequences of this act in stabbing the prosecuting witness. For it was clearly the province and duty of the jury to consider the nature of the weapon used by the defendant and his manner of using it, togetlier with all the other circumstances of the case, in determining whether the assault was in fact committed with the intent alleg-ed in the indictment. 1 Bishop Crim. Law, sec. 735 and note 1. But the objectionable charge shifted the burden of proof as to the question of such intent, which would still remain for the determination of the jury, although they believed that the facts recited by the court’s instruction had been established by the evidence. Ogletree v. State, 28 Ala. 693; State v. Neal, 37 Me. 468; Starkie, Ev. (10 ed.), 72; State v. Jefferson, 3 Harrington, 571.”

In the case of Beavers v. State, supra, the defendant was convicted of assault with intent to kill by shooting at one Pridmore with a pistol. Judge Hughes, for the court, there said: “The-intent to take life, even where a deadly weapon is used in making the assault, is not a presumption of law arising from the assault or the use of the deadly weapon, in a prosecution for assault with intent to kill; it is a question of fact for the jury to determine from the evidence. It is competent for the jury to infer, or find as a fact from the use of a deadly weapon, if the circumstances of the case warrant, that the person using it intended to take life. The presumption of such' intent does not arise as a matter of law from the act, but the use of a deadly weapon is an evidentiary fact or circumstance to be considered by the jury in making up their conclusion. The burden of proof as to the intent is upon the State.”

The instruction complained of was erroneous, -and does not appear not to have been prejudicial, and the judgment will therefore be reversed, and the -cause remanded for a new trial.


author: Humphreys, J. McCulloch, C. J.,

text:
    Shultz v. Carroll.
    Opinion delivered February 12, 1923.
    1. Taxation — school tax — validity op tax deed. — An entry of a school tax levy in the record of the levying court having a column for “Amt. Taxes Voted,” under which appeared the number “7”, and a column “For What Purpose,” under which appeared “5 gen. 2 bldg.”, there being nothing to show whether these numbers referred to dollars, cents, or mills, was insufficient to sustain a tax deed based thereon.
    2. Taxation — publication op notice op tax sale. — A notice of the sale of lands for delinquent taxes published for two full weeks consecutively before the sale, the first insertion being two full weeks and the second toeing one full week before the day of sale, was sufficient publication.
    Appeal from Benton Chancery Court, Ben F. Mc-Mahan, Chancellor;
    reversed.

      Rice & Rice, for appellant.
    The entry as to the purported levy of taxes is meaningless. The figures used stand alone without even the dollar mark. There is nothing to indicate whether the levy was in cents or mills. It is void for ambiguity. 27 Bac. 356; 38 S. W.-283; 103 Ark 58Í. The record discloses that the delinquent list was published, but it does not show that it was filed in apt time, and is void for that reason. Pride v. Gist, 152 Ark. 368; 84 Ark. 567. The clerk’s certificate of publication of the delinquent list was not recorded before the day of sale as required by C. & M. Digest, § 10085, and the sale is therefore invalid. 68 Ar. 248; 74 Ark. 583. The clerk’s certificate of publication recites that he “advertised.” He does noi say “published.” There is a difference. There must he a strict compliance with the statute. 37 Cyc. 1281. The clerk wholly failed to certify any publication of notice of sale of this land as delinquent or otherwise. 84 Ark. 1; 84 Ark. 320; 68 Ark. 250; 37 Cyc. 1291. The clerk made no certificate whatever of the publication of the notice attached or otherwise to the delinquent list; he simply had the editor file his proof. Only the clerk can do that. 74 Ark. 583; 65 Ark. 595; Cooley on Taxation, 218-219.

      Sullins & Ivie, for appellee.
    There is no difference between the words “advertised” and “published.” 2 C. J. P. 294, 80 Ark. 31. There was no allegation or proof that the land involved was in school district No. 103. Where there is no proof as to the time the list was filed with the clerk, it will be presumed that it was filed in time. 21 Ark. 578. The notice of sale by the clerk and the certificate of publication were amply sufficient and meet the requirements-of the statutes. 91 Ark. 117; 80 Ark. 31.
   Humphreys, J.

Appellants brought this suit in the Benton Chancery Court against the appellees to cancel a tax deed for the S. E. ¼ N. E. ¼ sec- 23, tp. 19 N., R. 30 W., Benton County, Ark., .obtained by appellee, E. G. Carroll, from the State of Arkansas on July 21, 1919. Appellant, H. L. Shultz, alleged that he was the owner; and appellant, Peoples’ Savings Bank, Inc., that it had a special interest in said lands by reason of a mortgage lien acquired thereon. It was also alleged in the bill that the title acquired by F. G. Carroll was based upon a void forfeiture of the lands for the nonpayment of the taxes for the year 1916.

Appellees filed an answer denying the invalidity of the tax title acquired from the State of Arkansas.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree upholding the tax title and dismissing appellants’ bill for the want of equity, from which is this appeal.

Appellants assailed the tax title upon many grounds, and now insist upon the reversal of the decree because the trial court did not sustain any ground of attack. We deem it unnecessary to set out or discuss, seriatim, the various grounds of attack. We think the eighth ground of attack should have been sustained by the court. It is as follows:

‘ ‘ Said sale and proceedings thereunder are null and void because the levying court failed to levy the taxes for which said property was sold.”

The. record of the levying court was introduced, and contains the following entry relative to the levy for school purposes:

“No. of Dist. Amt. taxes voted For what purpose 103 7 5 gen. 2 bldg.”

This entry as to amount is meaningless unless a presumption is indulged against the landowner that the figures 7, 5, and 2, standing alone, mean mills. Even the dollar mark does not appear in the heading above the figure 7 or above the figures 5 and 2, to indicate that 7, 5, and 2 were intended as some proportional part of dollars. We think the record should have affirmatively shown whether the levy for school purposes was voted in cents or mills. This court said, in Morris v. Levy Lumber Co., 103 Ark. 581, that: “Every essential proceeding in the course of the levy of taxes must appear in some' written and permanent form in the record of the bodies authorized to act upon them,” meaning, of course, that the recorded proceeding should be free from ambiguity.

Appellants suggest that the notice of sale of delinquent lands for the year 1916 was fatally defective in several respects, but we think the notice in form aud substance complied with all the requirements of § 10084, Crawford & Moses’ Digest. There was no defect in the publication of the notice. It was published for two full weeks, consecutively, between the second Monday in May and the second Monday in June, the first insertion being two full weeks and the second one full week before the day of gale. In construing this section the court ruled in the eases of Townsend v. Martin, 55 Ark. 192, and Martin v. McDiarmid, 55 Ark. 213, that the first insertion must be two full weeks before the day of sale, and thereby impliedly ruled that the second insertion must be one full week before the day of sale.

For the error indicated, the decree is reversed and the cause remanded, with directions to cancel the tax title acquired by said F. Gr. Carroll from the State of Arkansas.'

McCulloch, C. J.,

(dissenting). It seems to me that it is entirely too strict a rule of interpretation to say that the record of the levying court does noi show that a levy of five mills was made for school purposes. It is true we have held that “to validate a tax levy it is essential that i-t be done in the manner prescribed by the statute, and this should be shown in the manner therein described,” but the record should he given a reasonable interpretation in determining what is meant by its language.. Neither the members of the levying court, the presiding judge nor the clerk are required to be learned in law, and literal accuracy in the narrative of the proceedings in this record should not be exacted in order to make a valid levy.

The decision of the majority is, I think, out of harmony with the liberal rule of interpretation adopted in Beasley v. Bratcher, 114 Ark. 512.

The only defect in the record is the failure to specify the denomination of the figure indicating the amount of the tax. In other words, the clerk merely failed to insert the word “mills. ” It is clear that the figure “ 5” referred to the amount of the levy, for that is indicated at the top of the column. The intention to levy a tax being manifest, and an amount being indicated by the figure used, we should indulge the presumption that the lowest unit was intended, which is the one specified in the Constitution in fixing the limit of school taxes.

The Constitution authorizes the school tax in mills, and we should indulge the presumption that the figure in the record was intended to refer to the amount of tax thus authorized. It could not have had reference to dollars or cents, therefore it must have meant mills. The omission was a mere clerical error.


author: Humphreys, J.

text:
    Goff v. Beaty.
    Opinion delivered February 12, 1923.
    1. Limitation of actions — contract in writing. — A right of action in favor of an heir under a written contract to make a will accrued against the coheirs upon the promisor’s death, and was governed by Crawford & Moses’ Dig. § 6955, providing that suit on contracts in writing must be brought within five years.
    2. Adverse possession — notoriety.—Where plaintiff’s mother agreed to will him land in consideration of his taking care of her, and the character of his subsequent possession of the land was not changed either before or after her death, his possession after her death was not adverse to his coheirs.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      McNalley, Kitchen & Harris, for appellant.
    An agreement to will property upon the consideration that’the promisee will perform certain services is good, where it is shown that the services were performed. 102 Ark. 30; 105 Ark. 494; 128 Ark. 1; 117 Ark. 228; Elliott on Contracts, vol. 3, § 2325, 40 Cyc. p.’1063, § 6; 33 L. R. A. 369. The heirs, devisees or trustees of the deceased .promisor will be treated as trustees charged with the express duty of making proper conveyance. 3 Elliott on Contracts, j 2325; 33 L. R. A. 369; 102 Ark. 30. The statute of limitations will not run against the beneficiary of an express trust, unless the trustee expressly repudiates the trust or the circumstances are such as to raise a presumption of the extinguishment of the trust. 46 Ark. 25; 101 Ark. 230; 52 Ark. 76; Story’s Eq. Juris. 14 ed. vol. 3, § 1973. A trustee cannot acquire title to real estate by limitations, when there has been no disclaimer of the trust. 52 Ark. 76; 101 Ark. 230. The rule that the statute of limitations will not bar a trust applies to those express trusts that are not cognizable of law. 20 Ark. 195; 16 Ark. 124. The statute does not move in favor of a vendor who is under obligation to eonvev Cm legal title, unless he has aiven notice of his intention not to convey. 44 Ark. 452; 79 Ark. 100; 85 Ark. 584.

      Pope & Brown, for appellee.
    Under a contract to make a will, where promisor dies without doing so, the breach occurs at the death of the promisor, and the cause of action arises at that time, and the statute of limitations then begins to run. 40 Cys. 1071; 117 Ga. 94; 42 S. W. 46; 63 N. E. 782; 7 Fed. 82. Unless action be commenced within five years from such time, the promisee’s rights are barred. C. & M. Digest, § 6955. Appellees were not parties to an express trust, such as would avoid the running of the statute. See 11 Am. Dec. 417; 46 Ark. 34; 25 Oye. 1153.- There was no relation of vendor and vendee here.
   Humphreys, J.

On the 27th day of April, 1921, appellant instituted suit in the Union Chancery Court against appellees to compel them to convey the frl. "W. half of sec. 5, and frl. E. half of sec. 6, tp. 20 S. R. 16 W., Union County, Ark., to him, in performance of the terms of a contract entered into on the 20th day of June, 1901, between appellant and his mother, Alvira Goff, whereby she agreed in writing to will him all her real estate in consideration that he remain with and take care of her during the remainder of her life. It was alleged in the hill that he immediately entered upon the performance of the contract, and fully complied with the terms and conditions thereof by caring and providing for his mother until her death on the 1st day of December, 1915; that on said date she died intestate the owner of said real estate, leaving surviving, as her only heirs, appellant and appellees; that during the lifetime of his mother they resided upon said lands, and that after her. death he occupied them openly, exclusively, and adversely, paying’the annual taxes thereon, under absolute claim of ownership.

Mrs. M. J. Reams, one of the defendants in the case, conveyed her undivided interest in said lands to appellant, and filed no answer.

Annie Beaty for herself, and Walter Brown, guardian ad litem for G. W. Goff, filed a joint answer, admitting that their mother died intestate, owner of said, lands, hut denying all -other material allegations in the bill; and, by way of further defense, pleading the five-year statute of limitations in bar of appellant’s right to' enforce the alleged contract.

The cause was submitted to the court upon the pleadings and testimony introduced 'by the parties responsive to the issues, which resulted in a dismissal of appellant’s bill because -the action was not commenced within five years after the death of Alvira Goff.

The record reveals that Alvira Goff donated the land in question in 1880 from the State of Arkansas; that she and all her children, except Annie Beaty,'immediately moved on the place, .'cleared it up, and established a home; that the family consisted of the mother and four children, George, Mary, Rachel, and Bruce (appellant); that at the time George was twenty-one and Bruce nine years old; that the girls, as well as the boys, cleared and cultivated the land; that Rachel resided in the home until she attained to the age of thirty, at which time she died, leaving no direct heirs; that Mary lived in the home a number of years before she married and moved to a home of her own; that three years after moving on the place George developed a mild form of insanity and was sent to the asylum for treatment, where he remained for six months; that he was not entirely cured, but returned and continued to reside in the home and cultivate a part of the land until two years after the mother died, when he was again sent to the Hospital for Nervous Diseases, where he has since remained; that, when affliction incapacitated George, the management of the farm devolved upon Bruce; that on the 20th of June, 1921, Bruce accompanied his mother to town, where she executed the contract sought to be enforced, which is as follows:

“Junction City, Arkansas, June 20, 1901.
“I have agreed to will all my reai estate of land to my son, B. B. Goff, for taking care of me and caring for me, Alvira Goff.
“W. half W. half S. 5 T. 20 B. 16................................................55.92
“E. half E. half, ¡3. 6, T. 20, B. 16..........................................56.35
“One dollar to other heirs. 112.27
her
“Alvira X Goff.
mark
“J. B. Bishop, J. IV’

That when executed the contract was delivered to and accepted by him as an inducement to get him to remain at home; that he had expressed an intention to leave home unless some such arrangement was made; that the execution and delivery of the contract was not divulged to appellant’s brother and sisters until three months before the institution of this suit; that, prior to the execution of the contract, Bruce was manager of the farm, and handled all the proceeds derived therefrom, expending same in the maintenance of the farm and family; that his relationship to the place before and after the agreement was the same; that six or seven years before his mother died he married and took his wife into the home; that after his mother died appellant, his immediate family, and George remained upon the plac.e for about two years; that George was then sent to the asylum, since which time appellant has resided upon the farm and applied the proceeds therefrom to the payment of improvements, repairs, taxes, and support of his family, accounting to no one for rents and profits; that no demand was m,ade upon him for rents and profits by his brother and sisters; that about three months before bringing suit appellant attempted to get his sisters to join him in an oil lease upon the lands to J. M. Brown; that they refused to do so, whereupon he asserted title to the lands under the contract for a will to them,.

While the testimony is somewhat conflicting as to the contributions of the several children toward the support of their mother, the decided weight thereof shows that the appellant met all the requirements of the contract after June 20, 1901, hi maintaining and supporting his mother.

Appellant contends that under the record made he is entitled to the specific performance of the contract, or-, failing in that, to a decree quieting his title by reason of seven years’ adverse possession of the land.

The right of action, under the contract, accrued against the heirs of Alvira Goff at the time of her death. 40 Cyc. 1071. She died on the first day of December, 1915. Under § 6955, Crawford & Moses’ Digest, suits upon contract in writing must be brought within five years after the right of action accrues. This suit was not commenced until the 27th day of April, 1921, more than five years after the action accrued, hence was barred by the five years’ statute of limitations.

There was no change in the attitude of appellant toward the land before and after the execution of the contract in question. The character of his possession was exactly the same. He resided with his mother upon it, managing it, and controlling it for the benefit of the family. No claim of adverse or exclusive possession was asserted or claimed against his mother. In fact, absolute secrecy was maintained concerning the execution of the contract for a will. After the death of Alvira Goff, appellant and appellee, G. W. Goff, occupied the farm together for two years, each cultivating a part of it. Five years after the death of Alvira Goff, appellant tried to get his sisters to join in an oil lease upon the lands to J. M. Brown. All of appellant’s acts and conduct relating to the possession of the lands, after the death of Alvira Goff, are perfectly consistent with, and may be attributed to, a tenancy in common.

The decree is therefore affirmed.


author: McCulloch, C. J.

text:
    Sease v. State.
    Opinion delivered February 19, 1923.
    1. Criminal law — insanity—error coram nobis. — Where the question of accused’s sanity was suggested either formally or informally at or before trial, the writ of error coram nobis is not available after conviction to raise that question for the purpose of setting aside the judgment.
    2. Criminal law — refusal of continuance — error coram nobis. —Refusal of a continuance in a murder trial on the ground that defendant was insane, if error, could be corrected only by appeal, and not by writ of error coram nobis.

    3. Criminal law — insanity—error coram nobis. — Where, in a murder trial, there was evidence which suggested defendant’s insanity, and, in support of a writ of error coram nobis, the evidence adduced was merely cumulative of that adduced at the trial, and tended to show general insanity, which began long before commission of the homicide, it was not error to refuse the writ.
    Certiorari to Baxter Circuit Court; Walter L. Pope, Judge;
    affirmed.

      W. U. McCabe, Joe George and Mehaffy, Donham & Mehaffy, for appellant.
    It is within the province of the circuit court, or the judge thereof in vacation, upon a proper showing, to issue a writ, returnable to the court, to inquire into the alleged insanity of a prisoner at the time set for execution. 115 Ark. 317; 35 Ark. 517; 124 Wis. 634; 4 A. & E. Ann. Cases, 389, and note on p. 393. When the application is made to the judge in vacation for the writ, a full and complete hearing is not contemplated in law, hence at. that time a prima facie showing is sufficient, or at most such showing as would raise reasonable grounds to believe that the prisoner is insane. C. & M. Digest § 3055. Though the court is held in Kelley v. State, 156 Ark. 188, that the writ of error coram nobis will not be to inquire into the convict’s mental conditioif at the time of the trial, where 'his insanity was -brought to the attention of the court by suggestion of counsel during the trial, yet we think the “suggestion” meant -was .a calling of the court’s attention thereto in. such manner as to require action by the court. However that may be, we think the writ will lie to inquire into the insanity of a prisoner at the time set for his execution.

      J. 8. TJtley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
    The writ of error coram nobis will not lie to contradict or put in issue any fact that has already been adjudicated in the case. 58 Ark. 229. It is available to set aside a judgment of conviction after the expiration of the term of court, if the defendant was insane at the time of the trial, and that fact was not made known or suggested at the trial. Kelley v. State, 156 Ark. 188. But it will not lie to contradict or put in issue any fact already adjudicated in the action. Id. Petitioner’s insanity has already been put in issue and decided against him. Sease v. State, 155 Ark. .130. His sanity having been affirmatively established in the murder trial, it will be presumed to continue until the contrary is shown. 19 Ark. 533; 59 Ark. 246; 10 R. C. L. 872,' and cases cited; Id. 879. And the burden was on the petitioner to overthrow this presumption.
   McCulloch, C. J.

At a special term of the circuit court of Baxter County held in May, 1922, the petitioner, Herbert Sease, was convicted of the crime of murder in the first degree and sentenced to death by electrocution. The judgment of conviction was, on appeal, affirmed by this court. Sease v. State, 155 Ark. 130. After the judgment of affirmance by this court the date of the execution was fixed by executive proclamation, and on December 12 the petitioner, through his counsel, presented to the judge of the circuit court in vacation a petition for a writ of error coram nobis for the purpose of inquiring Into appellant’s sanity at the time of his trial and conviction. Numerous affidavits were presented to the circuit judge in support of the petition, but upon examination thereof he refused to issue the writ. The record made before the judge in vacation has been brought here on certiorari for review.

The case is, we think, ruled by the principles announced by this court in the recent case of Kelley v. State, 156 Ark. 188. We decided in the case just cited that, where the question of the -insanity of the accused was suggested, either formally or informally, at or before the trial, the writ of error coram nobis was not available after conviction to raise that question for the purpose of setting aside the judgment.

The testimony offered in support of this writ was merely cumulative of the testimony that was offered in the trial and tended to show general insanity dating back prior to the day of the homicide. The accused, at the trial, asked for a continuance of the cause on the ground that he was insane, and the refusal of the court to grant the continuance was one of the assignments, of error on the appeal to this court. If the trial court erred in failing to suspend the trial on account of the alleged insanity of appellant, it was an error which could only be corrected by appeal. .

The petition now before us is sufficiently broad, however, to constitute an allegation of insanity at the present time and to invoke relief by suspension of the sentence as long as the condition of insanity of the accused exists.

In our former decisions we have recognized the power of the court to grant relief in capital cases, where the convict is insane when the time comes for executing the judgment. This remedy, however, as shown in the Kelley case, supra, must be exercised with caution, and the court determines, as a preliminary question, whether there is sufficient ground for entering upon an investigation of the question of the insanity of the convict. As we have already said, the testimony, now adduced is merely cumulative of that which was adduced at the trial, and tends only to show general insanity, which began long before the commission of the homicide. It is true there were introduced the affidavits of physicians who testified as experts, but that testimony is merely cumulative. There was no showing of a substantial change in petitioner’s condition since the original trial.

We are of the opinion that the circuit judge was justified, under the circumstances, in refusing to grant the writ. The writ of certiorari is therefore quashed, and the judgment of the circuit judge in vacation is affirmed.


text:
    Jerome Hardwood Lumber Company v. Beaumont Lumber Company.
    Opinion delivered February 19, 1923.
    1. , Sales — failure to accept goods — defense.—In an action against a buyer of lumber for refusing to accept lumber sold, a defense that lumber -bought from plaintiff under another and independent contract was inferior and not up to the contract was no justification for refusal to accept the lumber in question, regardless of the fact that the same kind of .lumber was specified in both contracts.
    2. Contracts — effect of breach. — The rule that one who first breaks a contract cannot .maintain a suit to recover upon it and that such breach releases the other party from performance applies to performance by the respective parties of the same contract, not to performance of an independent contract.
    3. Appeal and error — admission of evidence — -harmless error.— In an action by a seller against a buyer for refusing to accept lumber, where, on undisputed testimony, the seller was entitled to recover, assignments of error with reference to the introduction of evidence were immaterial.
    4. Sales- — order for lumber not indefinite. — An order for four carloads of lumber, specifying the kind -and grades^ was not too indefinite -as to the quantity nor -as to the quality of the different grades ordered; as -the seller had a right to deliver f-our carloads of at least minimum capacity, and of any of the kinds specified, without regard to the quantity of the different grades.
    5. Sales — verdict.—Evidence as to the amount of damage sustained by breach of a contract to -accept four carloads of lumber held sufficient to- sustain verdict.

      Appeal from Drew Circuit Court; Turner Butter, Judge;
    affirmed.

      Williamson & Williamson, for appellant.
    1. The purported contract is void and unenforceable for vagueness and uncertainty. No contract has been proved for any definite quantity of lumber, nor for any legally ascertainable total contract price. 23 Ark. 63; 117 Mo. App. 19; 96 Ark. 188.
    2. The court erred in refusing to submit appellant’s defense to the jury. The failure of one party to a contract to comply with its terms releases the other party from compliance. 65 Ark. 320; 119 Ark. 1; 88 Ark. 422.

      Rogers, Barter & Henry, for appellee.
    1. A properly identified contract was proved. As to the contention that no contract for a definite quantity of lumber was proved, the cases relied on by appellant are not in point. The law applicable is stated in 96 Ark. 384, 188. See also 7 Ind. App. 462, 34 N. E. 579.
    2. Testimony as to the two contracts prior to the one sued upon was not within the issue raised by the pleadings, and was inadmissible. 7 Ark. 470; 33 Ark 307; 24 Ark. 371. The contracts were separate and distinct. An alleged breach of one of the prior contracts was not admissible. 85 S. W. 850; 68 Ark. 225; 58 S. W. 252'. .
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover damages arising from an alleged breach of a contract for the sale by appellee to appellant of four carloads of lumber to be shipped from Starks, Louisiana, to appellant’s place of business in Drew County, Arkansas.

It is alleged in the complaint that appellant entered into an agreement (in the form of a written order and written acceptance) whereby appellant agreed to purchase four carloads of-lumber of the description set forth in the written order, and that appellant subsequently broke the contract by refusing to accept the lumber. Damages are laid in the sum of $1,324.12, alleged to be the difference ¡between the contract price and the price for which the lumber sold on the market after appellant’s refusal to accept it.

There was a trial of the issues before a jury, and the verdict was in appellee’s favor for $617.06 damages.

Appellants defended below on the ground that appellee had committed the first breach of the contract by shipping- inferior lumber not up to contract under a former order, but the court ruled that this constituted no justification for appellant’s refusal to accept the lumber, and gave the jury a peremptory instruction in favor of appellee on that.issue. We are of the opinion that the trial court was correct in giving the peremptory instruction in appellee’s favor.

■ Appellee was doing business at Beaumont, Texas, and appellant was engaged in the lumber business at Jeróme, in Drew County.

All the communications between the parties with respect to this and other transactions between them were in writing. Appellant sent in a written order to appellee on April 1 for two carloads of lumber, and they were shipped, one from Devers, Texas, and the other from Hawthorne, Louisiana. An order was sent in for another car on April 6,' 1920, and this car was shipped from Starks, Louisiana. The order involved in the present case embraced four carloads, and was dated May 15, 1920, the acceptance of appellee being- dated May» 18. Each of the orders was separate and had no reference to each other. There is not in the record any antecedent correspondence which could be treated as a part of either of the contracts or which throws any light upon them.

When the first carload of lumber shipped under the order of April 1, 1920, reached appellant’s place of business, there was a refusal of acceptance, on the ground of its being not up to the terms of the contract, but appellee accepted appellant’s inspection and settled on the latter’s terms. 'When the second ear under the order of April 1 was received by appellant’s place of business, it was also found to be not up to specifications, and appellee accepted appellant’s inspection on this car and permitted settlement to be made on appellant’s own terms. This car was received after the order of May 15, 1920, was given and accepted, and it was at that time that appellant undertook to cancel.the order on the ground that the shipments under a prior order were not up to the specifications of the contract. The car shipped under the order of April 6, 1920, was inspected by a national inspector, in accordance with the terms of the contract, and was accepted by appellant without complaint.

The 'Contention of appellant is that the fact that the two carloads of lumber shipped under the order of April 1,1920, not being up to the terms of the contract, justified a refusal to perform the contract represented by the order of May 15, 1920.

We recognize the well-established rule that one who-first breaks a contract cannot maintain suit to recover upon it, and that the failure of one party to comply with a contract releases the other party from performance. Missouri Pacific Ry. Co. v. Yarnell, 65 Ark. 320; Spencer Medicine Co. v. Hall, 78 Ark. 336; John A. Gauger & Co. v. Sawyer & Austin Lbr. Co., 88 Ark. 422; Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522; Keopple v. Delight Lbr. Co., 105 Ark. 233; Ensign v. Coffelt, 119 Ark. 1.

, The application of this rule is confined, however, to performance by the respective parties of the same contract, and not to the performance of distinct and independent contracts. The breach by one party to a contract does not release the other party from performance of another independent contract. 5 Page on Contracts, § 2976.

There is not a particle of proof in this case of any relation between the different contracts, nor is there any proof that the cars of lumber last ordered were not in accordance with, the contract. Each order was separate, and constituted a distinct and independent contract, and, as before stated, the fact that some of the lumber shipped under the first order was not up to specifications affords no justification for the refusal to accept the lumber tendered under the last contract.

One of the witnesses introduced by appellant testified that it was their method of business to buy lumber of certain grades for a special trade, but there is no testimony that this was communicated to the appellee or that it was incorporated in the order, for the order itself is in writing, and gives sufficient specification of the lumber to be shipped. Nor does the fact that all of the orders specify the same kind of lumber affect the question of appellant’s right to refuse performance of the contract on account of the lumber shipped on the former order being defective. Each order contained its own specifications of lumber to be shipped, and appellant undoubtedly bad the right to reject any lumber which was not in accordance with the specifications, but this is quite another thing from a refusal to permit performance of the last contract because there had been a breach in the performance of an independent contract.

There are several assignments with reference to the introduction of evidence, but these assignments become immaterial since we hold that, according to the undisputed evidence, appellant committed an unjustified breach of the contract, and appellee is entitled to recover damages on that account.

It is also contended that the order for the lumber is too indefinite to constitute n binding contract, in that it merely described the quantity of lumber as four carloads, without any other further specifications as to quantity. The order in this regard reads as follows:

“4 carloads 4-4" No. 2 common and better plain oak as follows:
“4-4 FAS ..............................................................................$150.00
“4-4 No. 1 common.........................................................110.00
“4-4 No. 2 common...................................................... 65.00”

The argument, is that four carloads of lumber may mean any quantity that appellee might see fit to ship in four separate cars. It appears from the record that the capacity of railroad cars is from 8,000 to 15,000 feet of lumber. Under the terms of the contract, appellee had a right to deliver four carloads of at least minimum capacity, and the specification, we think, was not too indefinite to constitute an enforceable contract.

It is also contended that the contract was too indefinite because it did not specify the quantity of-lumber of the different grades. The effect of the contract is to bind the purchaser to accept carloads of lumber of any of the kinds specified without regard to the quantity of the different grades. In other words, the contract constituted an undertaking to accept lumber of any of the grades specified.

Finally, it is contended that the verdict is not sustained by evidence sufficient to show the extent of the damage, but we are of the opinion that the evidence shows even more damages than the jury allowed. It is disclosed in the evidence that the parties corresponded for a time after appellant’s attempt to cancel the order, in an effort on the part of appellee to induce appellant to accept the lumber, and that the lumber was resold on the market within a reasonable time after appellant refused to accept it.

Judgment affirmed.

Wood and Hart, JJ., dissent.


text:
    Toler v. Brown.
    Opinion delivered February 19, 1923.
    1. Wills — holographic will. — Under Crawford & Moses’ Dig., .§ 10494, -an unattested w-ill written in the handwriting of the testator may be establishéd by the -unimpeachable evidence of at least three disinterested witnesses to the handwriting and signatures, and, where there is no testimony tending to impeach the credibility of the witnesses offered in support of a holographic will and no evidence tending to contradict the fact that the instrument is in the handwriting* of the alleged testator, the testimony must be treated as undisputed, and the will established.
    2. Wills — finding that letter was not holographic will. — Testimony held to sustain a finding that a certain letter was not a holographic will.
    3. Appeal and error — objections not raised below. — Objections to instructions in proceedings to contest will, not made in trial below, will not be considered on appeal.
    4. Wills — contest—ambiguous verdict. — A verdict, “We, the jury, find that the instrument purporting to be the will of * * * was not executed by him, or, if executed by him, is not a valid will, as it was not his intention at the time it was written that it should be his will,” held, tboug'h slightly ambiguous, a sufficient finding that the instrument was not a will, particularly where the objection to its form was not made below.
    Appeal from Grant Circuit Court; W. II. Evans, Judge;
    affirmed.

      Thos. E. Toler and R. R. Posey, for appellant.
    The burden of proof rested upon the contestant to show iraud or forgery. 33 Ark. 479; 19 Ark. 533; 29 Ark. 151; 49 Ark. 367; 31 Ark. 3.75; 80 Ark. 204. It is not necessary that a writing, to be a valid will, be in any particular form or be couched in language technically appropriate to its testamentary character. It is sufficient if it discloses the intention of the maker. 1 Jarman on Wills (6th ed.); 7 Appeal Cases 409. Instances where wills have been held valid which were expressed in even less direct language may be found as follows: 50 Cal. 595; 1 Jones’ Law (N. C.) 150; 118 N. C. 202; 107 By. 293; 6 Dana 257; 21 L. Aim. 280; 99 Am. Dec. 729; 130 Pa. St. 342; 61 Md. 206;. 67 Md. 449; 105 Ark. 554. The letter was testamentary in character and intended to direct the disposition of his property after death. 90 Ark. 152; 98 Ark. 553; 104 Ark. 439; 122 Ark. 407. The expression in the letter “and will, the rest a dollar apiece” was sufficient to designate the child of the testator. 86 Ark. 368; 94 Ark. 39; 143 Ark. 484.

      T. Nathan Nall and Isaac McClellan, for appellee.
    The jury had ample grounds for declaring the purported will a fraud or forgery. The credibility of the witnesses was a question for the jury. 222 S. W. 722; 80 Ark. 204; 122 Ark. 411; 222 S. W. 725. Verdicts will not be overturned where there is substantial evidence to support them. 130 Ark. 465; 142 Ark. 159. Appellant’s peremptory instruction' was properly refused. Conflicting evidence is always a matter for the jury to pass on. 65 Ark. 116; Id. 225; 73 Ark. 377; 76 Ark. 326. Appellant raised no objection at the trial to instruction No. 1 for appellee, and it is too late now. 78 Ark. 490; 81 Ark. 195; 85 Ark. 326; 91 Ark. 43. Objection cannot be made for the first time to the form of the verdict, on appeal. 119 S. W. 267; 90 Ark. 482. The newly discovered evidence upon which a new trial was asked was only cumulative. 66 Ark. 523; 96 Ark. 400; 97 Ark. 92; Id. 290; 99 Ark. 78; 103 Ark. 589.
   McCulloch, C. J.

Finis Gallion, a young man residing in Grant County, Arkansas, entered the military service of our government during the war with the Central Powers of Europe, and was sent to 'Camp Beauregard for training. Later he went to France, and died there while still in the military service.

A letter purporting to have been written by Finis Gallion during hisi stay at 'Camp Beauregard to his brother, Ed Gallion, was offered for probate in Grant County as a last will and testament, and the probate court admitted the instrument of writing as a holographic will of Finis Gallion, on proof that the signature and .'body of the instrument were in the handwriting óf the alleged testator. There was an infant son of the alleged testator, and his guardian prosecuted an appeal to the circuit court of Grant County from the order admitting the instrument to probate as a will, and on the trial of the issue before a jury the following verdict was returned:

“We; the jury, find that the instrument purporting to he the will of Finis Gallion, deceased, was not executed hy him, or, if executed by him, is not a valid will, as it was not his intention, at the time it was written, that it should be his will, therefore we find for the contestant, Mrs. G. N. Brown, as guardian of Carl Gallion, a minor.”

The court rendered a judgment upon the verdict to the effect that the instrument offered was not the will of Finis Gallion, and an appeal has been prosecuted by the executor and by Ed Gallion, the legatee under the will.

At the trial of the cause appellant introduced three witnesses, who testified that they were familiar with the handwriting- of Finis Gallion, and that the offered instrument was in his handwriting. One of the witnesses testified that he was present at Camp Beauregard when the letter was written, and that he recognized it as one which Gallion had handed him to read before he mailed it.

Our statute provides that an unattested will, written in the handwriting of the testator, “may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting- and signature * * V’ Crawford & Moses’-Digest, § 10494.

There was no testimony directly impeaching the credibility of the witnesses offered in support of the will, and, in the absence of any evidence tending to contradict the fact that the instrument is in the handwriting of the alleged testator, the testimony must be treated as undisputed and the. will established. Arendt v. Arendt, 80 Ark. 240. In the present case, however, there is testimony tending- to show that the instrument in question is not in the handwriting of Finis Gallion. The letter is on two separate sheets, the testamentary portion of the letter being found entirely on the second sheet.

Tom Gallion, a brother of Finis, testified that he was familiar with his brother’s handwriting, and that the second sheet of the letter was not in his brother’s handwriting. The contestant also introduced three other witnesses, who testified as experts, and stated that they had examined the letter,- and that the two sheets were not in the same handwriting.

There are other circumstances adduced in evidence which tend to contradict the fact that the whole of the letter was in the handwriting of Finis Gallion. There was sufficient evidence, therefore, to support the finding of the jury.

The only objection made by appellant in regard to the court’s charge to the jury is the objection to the refusal to give a peremptory instruction. This ruling was-correct, as there was sufficient evidence to submit the issues to the jury.

Objections are urged here to several of the instructions given by the court at the request of the contestant, but as timely objection was not made at the trial below, we cannot consider these assignments.

It is also urged here, for the first time, that the verdict is in the alternative and does not support the judgment. There is a slight ambiguity in the form of the verdict, but the court interpreted it to be a finding against the execution of the will, and appellant made no objection to the form of the verdict. It is reasonably certain, from the language of the verdict, that the jury meant to find that the instrument was not executed by Finis Gallion, and if it was thought to be in doubt there should have been objection made to its form.

Finding no error on the record of the trial, the judgment must be affirmed, and it is so ordered.


author: Wood, J.

text:
    Robert v. Brown.
    Opinion delivered February 19, 1923.
    1. Evidence — copy of record. — If a plaintiff in ejectment is not able to introduce an original deed in evidence a purported copy from the record is not admissible under Crawford & Moses’ Dig., § 1531, unless certified by the recorder.
    2. Ejectment — title of plaintiff. — A plaintiff in ejectment must rely on his own title, and not upon the weakness of his adversary’s title.
    Appeal from Lawrence Circuit Court, Eastern District; Dene E. Coleman, Judge;
    affirmed.

      E. H. Tharp, for appellant.
    The court’s theory that only certified copies of deeds in the chain of title could be considered by the jury was erroneous. That is a convenient method by which deeds may be certified by the clerk and introduced in evidence without other proofs, but it was not intended as the exclusive method. If the court holds, however, that certified copies of the exhibits should have been introduced, we ask that the case be remanded to the end that’it may be more fully developed. 75 Ark. 423.

      W. A. Cunningham, for appellee.
    1. Crawford & Moses’ Digest, §1531, in providing that proof of a recorded instrument, when lost or not within the power or control of the party wishing* to use the same, might be made by introduction of the record, or a copy thereof, certified by the clerk, intended to provide an exclusive method of making such proof.
    2. In ejectment the plaintiff can rely only on the strength of his own title, not upon the weakness of his adversary’s. 122 Ark. 375.
   Wood, J.

The appellant instituted this action against the appellee to recover certain lands which are described in appellant’s complaint. He deraigned title from the State through various mesne conveyances, which he sets out, copies of which he purports to make exhibits to his complaint.

The appellee, in his answer, alleged that he was the owner of the land described in the complaint, and specifically denied each and every muniment of title set up in appellant’s complaint.

In setting out the various conveyances in the chain of title appellant alleged that they were duly recorded. To establish his title appellant called as a witness E. H. Tharp, who testified that he was the attorney for the appellant, and as such examined the record of title, and he exhibited what he designated muniments of title dating back from the government on up to the present. He stated that the deeds which he exhibited were copies of the record; that the originals could not be introduced. He had compared the records and made copies of the deeds and instruments affecting appellant’s title, and offered these copies in evidence.

The court refused to permit the instruments to be considered as evidence, because same were not certified copies and therefore did not meet the requirements of the law to show the chain of title set up by the appellant. At the conclusion of the testimony the appellee moved the court to instruct the jury to return a verdict in his favor, which motion the court granted. The jury returned a verdict as directed. The court entered a judgment in favor of the appellee in accordance with the verdict, from which is this appeal.

Section 1531 of Crawford & Moses’ Digest provides as follows: “If it shall appear at any time that any deed or instrument, duly acknowledged or. proved and recorded as prescribed by this act, is lost or not within the power and control of the party wishing to use tlm same, the record thereof, or a transcript of such record certified by the recorder, may be read in evidence without further proof of execution.”

The appellant did not meet the requirements of the statute. He did not introduce the original deed, but offered only purported copies from the records,, which were not certified by the recorder, as the statute requires. When the purported copy of the record of a deed is offered in evidence it must be certified by the recorder, as prescribed by the statute. “A plaintiff in ejectment must rely upon his own title, and not upon the weakness of the title of his adversary.” Boynton Land & Lumber Co. v. Hawkins, 122 Ark. 374.

The judgment is correct, and it is therefore affirmed.