text:
    Rose v. Hunnicutt.
    Opinion delivered November 3, 1924.
    1. ’ Wills — destruction—presumption!—It will be presumed that a • ■ testator destroyed a will which' cannot be found after her death, with intention to revoke -it, if she retained custody of it or -had sieqess .to it, but this, presumption. may -be overcome .by .proof.
    2. IVills-t^pres.umption pF. REVOCATION. — ^Evidence held . to overcome the presumption that a testatrix destroyed a will which could not be found after her death.

      3. " Wills — fraudulent destruction. — Loss or destruction, without ’ the'testator’s consent or knowledge, of a will'deposited m á bank for safe-keeping during the testatrix’s' lifetime, amounted to a fraudulent destruction thereof, within Crawford &, Moses’ Dig., § 10545, permitting proof of lost wills. ...
    ■Appeal from Woodruff' Chancery Court, Northern District; A: L; ■Hutchins, Chancellor;
    affirmed. ' '
    • 'Norfleet'&'Norfleet and 'E: M. Carl-Lee," for appellant. ' : "
    Since circumstantial evidence is admissible to'prove ,a-last will, it should be accepted at equal value to establish revocation, especially since nonproduction of "the will raises a presumption of” a revocation. 35 N. Y. 653. To overcome the presumption of revocation, the burden Was on appellee to show that the will was in.existence'at the time of the death of the testatrix. 49 1ST. Y. S. R. '291; .38 L. R. A. 434. See also 40 Hun 387; 38 L. R. A 433-; 87 Ky. 21. ■ ■

      H. M. Woods and J. F. Summers, for appellee.
    Where a will is deposited by a testator with a'custodian, and he thereafter has no access to the will, and it becomes lost or destroyed without the consent of said testator, this amounts to a fraud upon the testator," and it is the duty of the court to establish the will where its terms can be known for a certainty. 35 N. Y. 653. See also 139 Ark. 542. ", ' ' '''
   Humphreys, J.

This is an appeal from a decree of the chancéry court of Woodruff County, Northern District, establishing the will of Mary A. Stamps, which could1 not be found after her death. The will was executed by the testatrix, at her home in Augusta, in October, 1^17, in proper form, and witnessed by E. F. Brewer and A. H. Hamilton, in the manner required by law. I. J. Stacy was designated in the will as administrator. ’ The will provided for the payment of the just debts of the testatrix, $200 to the cemetery fund, and $200 to the Methodist Church, and bequeathed the remainder of the estate, both real and' personal, to appellee, Charles W. Hunnicutt. The will was placed in an envelope,- sealed, and given to A. IT. Hamilton, cashier of the Bank of Augusta &' Trust Company, with directions to place same in the vault of said bank for' safe-keeping.

No testimony was introduced in the case by appellants. They relied upon the' testimony introduced by appellee and their -cross-examination of the witnesses. A few of the witnesses made conflicting statements, but the conflicts were not so sharp and important afe to impair the salient features of their testimony.

The record ‘ reflects, in substánce, that the will was deposited id the vault of the'bank'about the time it'was executed, where it remained until lost or destroyed without the consent or kriowledge of the testatrix:'The'officers and employees of the bank, except I. J. Stacy, who died before the trial, testified that the testatrix had no access to the vault, and had never requested any one of them to give the will to her. The testatrix had informed several of her neighbors, in the summer before her death on October 22, 1919, that the will was in the bank for safe-keeping with her other papers, and that she had willed her property to Charles W. Hunnicutt. The testatrix became ill on Saturday before she died on Thursday. On Friday before she became ill she was at Mrs. Dupree’s home, and Mrs. Dupree, in answer to a question concerning a conversation between them, testified as follows:

“She said she wanted to come down to the bank, and spoke about Mr. Stacy several times, and said that her will was there and all her papers, and her business seemed ¡to bother her considerably, but I didn’t ask her any questions particularly, she would just tell me these things. I never asked her about them, but she always come to me with her trouble. ’ ’

The beneficiary in the will, appellee, called at the bank for the will, after the death of the testatrix, on several occasions, but the officials were unable to find It. A thorough search was made for it by A. H. Hamilton and I. J. Stacy several times, without avail. A. H. Hamilton and other officers of the bank testified that they were certain that the will was not in the bank. The various parties who had private boxes in the vault testified that they had never seen the will of Mary A. Stamps. There was a fire in the bank in March, 1919, and, after the fire, the papers began to mold, and were taken out of' the vault to dry. A. H. Hamilton testified that the only possible way he could account for the loss or destruction of the will was that it was misplaced at the time the papers were taken out of the vault to dry.

Mary A. Stamps had made two wills, which she had destroyed'before making this one. Minor Gregorv was beneficiary in one of them. The beneficiary in this will was taken into the home of the testatrix and her husband when five years old, and reared by them. He was as a son to them. The appellants are distant blood relatives.

Crawford & Moses’ Digest, relating to the establishment of a lost or destroyed will, is as follows: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”

It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intention of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death. This presumption may be overcome by proof. Bradway v. Thompson, 139 Ark. 542; Schultz v. Schultz, 35 N. Y. 653. iWe think it entirely overcome in this case by proof that the will was placed in the Bank of Au,gusta & Trust Company, to which the testatrix had no access, and the testimony of the living officials to the effect that . she never called for the will, and the acts of I. J. 'Stacy indicating that he had never given her the will, together with her statements to her friends, down to the day before she became ill, that the will was in the bank.

We do not think the surmises of learned counsel for appellant, that Hamilton never deposited the will in the bank vault, or that the testatrix called for the will on Friday before she became ill, is warranted by the evidence. Hamilton testified positively that he placed the will in the bank vault for safe-keepiner, and never saw it after that time. The testimony and acts of the bank officials refuted the mere supposition that the testatrix went to the bank on Friday before she became ill and obtained and destroyed the will.

We think the only reasonable conclusion from the testimony accounting’ for the will is that it was lost when the papers were taken out of the vault to dry after the fire. If, lost or destroyed in the lifetime of the testatrix, without her consent or knowledge, it amounted to a fraudulent destruction of the will as to her. Schultz v. Schultz, 35 N. Y. 653.

■ ; No error appearing, the decree is affirmed.


source: Caselaw Access Project

author: ' ' Humphreys, J.

license: Public Domain

text:
    Burrow v. State.
    Opinion delivered November 3, 1924.
    1. Seduction — indictment—felonious intent. — An indictment for seduction which charges the crime in the language of Crawford &. Moses’ Dig., § 2414, sufficiently charges the offense without alleging a felonious intent, since seduction was not a felony at common law, and the statute does not make a felonious intent an essential part of the crime.
    2. Seduction — evidence of unchastity. — Exclusion of letters of the prosecutrix to accused, written after he had sexual intercourse with her, and tending to show that she was unchaste prior to the alleged seduction,, held reversible error. •
    Appeal from Randolph Circuit Court; John G. Ashley, Judge;
    reversed.

      Schoonover & Jackson and Smith & Blackford, for ■appellant. ■ ’ .

      J. S'. Utley, Attorney General, and John L. Garter, Assistant, for appellee."
   ' ' Humphreys, J.

Appellant was indicted, tried and convicted in the circuit' court of Randolph County for the crime of seduction, and'adjudged'to serve a term of two years'in the State Penitentiary and to pay a fine of $500 as punishment therefdr: From the judgment of conviction an appeal has been duly prosecuted to this court.

■' Appellant was indicted under § 2414"of Crawford -■& Moses’ Digest, and the indictment is substantially in "the language of the statute. ' '

One assignment of error insisted upon by appellant for a reversal- of the judgment is that the indictment . was fatally defective because it omitted to allege that the crime was committed with a felonious intent. Seduction was not a felony at common law, where a felonious intent was an essential' to the crime. 35 Cyc., p. 1329. T'he statute does not make a felonious intent an essential part of the crime, so the indictment sufficiently charged the ■offense without alleging a felonious intent. State v. Eldridge, 12 Ark. 608; State v. Seawood, 123 Ark. 565.

The next assignment of error insisted upon by' appellant for a reversal of the judgment was the refusal of the court to admit in evidence twenty-four letters written by the prosecuting witness to appellant, in the fall after he had sexual intercourse with her in the spring and .summer. These letters tended to show that she was unchaste previous to the alleged seduction, and not merely that her thoughts lasciviously inclined toward appellant, who was charged- with seducing her: ■ The letters should not therefore have been excluded, under the rule of evidence announced in the case of Wilhite v. State, 84 Ark. 67. In that case the letter was properly excluded on the ground that the contents thereof indicated that the prosecuting witness was bent upón sexual intercourse with the defendant, and the court said that it did not lie in his mouth, after he had seduced, her, to show her lascivious inclination toward him.

Again, the letters were clearly admissible'as. affecting the credibility of the prosecuting witness.

There are other ■ assignments of error which it. js unnecessary to discuss, as they will not likely recur on the retrial of the case.

On account of the error indicated the judgment'.!? reversed, and the cause is remanded for a new trial.


author: Humphreys, J.

text:
    Scrivner v. Johnson.
    Opinion delivered November 3, 1924.
    Arbitration and award — construction op agreement. — An agreement to arbitrate questions as to the location of a section corner and to abide by the decision of three competent surveyors in the establishment of such corner contemplated that the original government corner should be located by any competent evidence available; but, if the corner cannot be definitely located by competent circumstantial or positive testimony, the surveyors would be authorized to locate the corner by survey in accordance with the government rules for locating a lost corner.
    Appeal from Clay Chancery Court, 'Western District; Archer Wheatley, Chancellor;
    reversed.

      F. G. Taylor and G. T. Bloodworth, for appellant.
    Testimony is admissible to show where a monument originally stood as the true 'corner. 4 Am. & Eng. Ency. of Law, 850. Parol evidence is admissible to prove the location of a lost or obliterated corner. 4 Am. & Eng. Ency. of Law, 850. A survey by a county surveyor is prima facie correct; the survey of another must be proved correct. 44 Ark. 287; 50 Ark. 65; 53 Ark. 411.
    J. L. Taylor, for appellee.
    The findings of the 'chancellor that the surveyors made no mistake is conclusive unless clearly against the preponderance of the evidence. 120 Ark. 313.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Clay County confirming the report of a board of surveyors appointed by the court to determine where the United States Government established a corner between sections 4, 5, 8 and 9, in township 21 north, range 4 east, in Clay County, Arkansas.

Exceptions were filed to the report, and, by consent of the parties, the transcript of the case of H. H. Johnson v. R. R. Black, in the circuit court for the Western District of Clay County, was filed as evidence tending to show that the original government corner was more than one hundred yards from the corner established by the board of surveyors. The board of surveyors was appointed by the court under the following written agreement between the parties to this suit:

“This agreement, made and entered into this the 14th day of March, 1921, by and between the parties who are signers hereof, -for the purpose of determining as to where the government established a corner between sections four and five, eight and nine, in township 21 north, range 4 east, (Hay County, Arkansas.
“Whereas, the location of said section corner is now in doubt by some of the interested parties, this agreement is for the purpose of establishing the said section corner to the satisfaction of all parties concerned. Now we, the undersigned landowners and parties affected by the establishment of said- section corner and lines running thereto, do hereby agree to abide by the decision of three competent surveyors in the establishment of said section corner, and agree to adjust our fences accordingly.”

The board of surveyors reported that they .were unable to discover any marks on the ground by which they could locate the government corner described in the field notes of the original survey, and that they located the corner by proportionate distances from known corners, according to the methods prescribed by the Gren eral Land Office for locating lost corners.

Appellant contends for .a reversal of the decree confirming the report of the board of surveyors, upon the ground that the surveyors and trial court misinterpreted the agreement of the parties relative to the location of the government corner in question. Appellant construes the agreement to mean that the surveyors should locate the original government corner 'by any competent evidence available. The surveyors and trial court construed it to mean that the original government corner should be located from the description of said corner contained in the field notes, and, if the markings of the corner had disappeared, then to locate the corner by survey in accordance with the government rules for surveying.

We think the construction placed upon the agreement by appellant is correct, and that the surveyors should have heard any available, competent testimony in an effort to find the original corner, before resorting to a survey to locate same. Of course, if the original comer cannot be definitely located by circumstantial or positive testimony which is competent, then the surveyors would be authorized, under the agreement, to locate and establish the corner by survey, in accordance with government rules for locating a lost corner... While the agreement was in the nature of an arbitration, the report or award was not binding upon the parties because the surveyors made a mistake. They proceeded under a misunderstanding of the contract, and under an erroneous impression as to their duty.

The decree is reversed, with directions tó sustain the exceptions to the report of the surveyors and for further proceedings not inconsistent with this opinion.


author: McCulloch, C. J.

text:
    Beason v. State.
    Opinion delivered November 10, 1924.
    1. Homicide — sufficiency op evidence. — Evidence held sufficient to sustain a conviction for murder in the first degree.
    2. Homicide — instruction as to proving mitigating circumstances. — Where there was evidence to sustain a conviction of murder in the first degree, it was not error to give an instruction in the language of the statute that, where the killing is proved, the burden of proving mitigating circumstances that justify or excuse the homicide devolved on defendant.
    3. Homicide — -abstract instruction. — An instruction in a murder case that the defendant was not required to suspend his defense, even’ if deceased was apparently withdrawing, . if defendant honestly believed - that deceased was withdrawing for the pur- . . pose of seeking a better position to,renew the combat, was properly refused where there was _ no testimony tending to prove such a state of facts.
    4. Criminal law — misconduct op juror. — Where an ' affidavit ; ’ named a particular juror as having communicated with outsiders, and the'juror’s counter-affidavit showed no impropriety in such communication, .a finding by the trial court that there was no misconduct is conclusive on the Supreme Court.

      5: Criminal law — burden of showing misconduct of jury.— Where there has been no separation of the jury, the burden is on the defendant to show that the jurors were exposed to various influences.
    6. .Criminal law — presumption that officer has done duty.— Where a jury is in charge of a sworn officer, it is presumed, until the contrary appears, that the officer did his duty and shielded the jury from improper influence.
    7. Criminal law — misconduct of juror — evidence.—An -affidavit as to a conversation of an unnamed juror and bystander was not sufficient alone to place the burden on the State to show that the juror was free from improper influence.
    8. Criminal law — contamination of jury — burden of proof.— Where the jury in a criminal case is permitted to separate by order of the court, the mere opportunity for contamination of the jury is not sufficient to place any burden on the State, and the defendant must prove contaminating- influence prejudicial to his case; but, where the jury is held together during the recess of the court, a showing by the defendant of an opportunity for exposure to noxious influences places the burden upon the State of showing that there was not prejudicial conduct or influences.
    9. Criminal law — exposure of jury. — Proof that the sworn deputy left an unsworn deputy in charge of the jury long enough to procure a watermelon for the jury, and that no juror left the room or conversed with outsiders during the deputy’s absence, did not sustain a charge of misconduct.
    Appeal from Lafayette Circuit Court; James H. McCollum, Judge;
    affirmed.

      Steve Corrigan, Searcy & Searcy, and McKay & Smith, for appellant.

      J. S. XJtley, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

, Appellant was indicted.for the crime of murder in the first degree, committed by shooting and lrilling Cody Franklin,- and, on the trial of the cause, the jury returned a verdict of conviction of murder in the first degree, and fixed the punishment at life imprisonment.

The.killing of Franklin by appellant was admitted, but he attempted to justify the killing on the grounds of necessary self-defense. It is contended here,that the evidence was not legally sufficient to sustain the conviction for any degree of homicide higher than manslaughter, and that the court erred in submitting the higher degrees to the jury.

Therefore, the first question presented for our consideration is whether or not the evidence is legally sufficient to sustain the verdict.

The killing occurred on the night of April 8, 1924, about midnight, at the store of Miss Ida Carlton, in the village of McKamie, where appellant was employed as a clerk. McKamie is a small village in Lafayette County, containing two stores and ten or twelve residences. Miss Carlton operated a mercantile establishment, and appellant was her clerk and salesman. Cody Franklin was a farmer in the neighborhood, and traded at Miss Carlton’s store, and owed an account there at the time of the killing. Franklin came to the store that evening — drove up in a car with appellant and another person — and Franklin remained there at the store until he was killed. There were no eye-witnesses to the killing, but Miss Carlton was present, according to her testimony and that of appellant himself, at the time the controversy between the men first arose in the store. Several witnesses in the neighborhood heard the shots fired about midnight, and testified that there were three shots, which were fired in rapid succession. One of the witnesses introduced by the State testified that he heard the shots in the direction of the store, and, looking in that direction, he saw, shortly afterwards, a flashlight, and that, in about thirty or thirty-five minutes thereafter, appellant appeared at his house, and said that he had been cut with a knife. This witness and others went to the store, and found the dead body of Franklin lying out a short distance from the store — one witness said that it was forty or fifty yards from the store, and off to one side, near a ditch. There was one shot through the body, which. entered from the back near the vertebra and emerged in front, near the man’s breast. Witnesses who examined Franklin’s body testified that he had no knife, and that they found none near the body, and other witnesses testified that Franklin did not own a knife at that time. Franklin’s wife testified that he had owned a knife before then, but that their baby had lost it, and that he owned none at the time of the killing.

According to the testimony of one of the witnesses, appellant made contradictory statements at the time with respect to the particular place where the difficulty began. Appellant testified that, after Franklin came to the store that night, he went back into the office with Miss Carlton, and that soon afterwards he heard a controversy between deceased and Miss Carlton about a payment of the account of the deceased. It seems from this testimony, as adduced by appellant, that deceased had offered to pay seventeen dollars on the account, and had exhibited a twenty-dollar bill, but. that, after Miss Carlton had credited the amount on the account, he refused to hand over the bill. Miss Carlton testified to the same effect, as did another witness introduced by appellant, who was present at the time but who left shortly before the killing. After this controversy about the payment, appellant claimed that he retired to an adjoining room and left Miss Carlton and deceased in the store, and that he was aroused by hearing Miss Carlton fall to the floor, when deceased struck her or pushed her over. Miss Carlton testified that deceased did push her, and that she fell to the floor, and that appellant came out of the other room and walked up to the place in the store where she and deceased were at the time.

Appellant testified that, when he heard Miss Carlton scream, and opened the door and saw that he had either struck her or shoved her down, he ran and grabbed Miss Carlton, and the next thing he knew Franklin had jerked him out of the side door and was cutting him. lie testified further that he and Franklin, after they got outside, scuffled around for fifteen or twent-v feet, and that Franklin got' him down on the ground, that he then thought of his gun, and, believing that Franklin was going to kill him, he drew the gnn, and when the gun went off he turned and ran. His exact statement was this: “I went to trying to get my gun, and so he seen me trying to get my gun, and in the scuffle there I don’t know which one pulled the trigger, I guess I did. The gun went off, and he turned and run. ’ ’

Now, the testimony of the other witnesses was, as before stated, to the effect that there were three shots fired, and there is no evidence that deceased had a pistol or a knife.

Appellant was contradicted by Miss Carlton, who testified that, after deceased shoved or struck her down and appellant came into the store-room, the deceased walked on out of the store, twenty or thirty feet ahead of appellant.

Appellant was also contradicted as to the place where the killing occurred, he stating that he was pulled out of the door fifteen or twenty feet away, whereas other testimony introduced by the State shows that the killing occurred forty or fifty yards from the store.

Considering all these circumstances and contradictions, and the fact that the deceased was shot in the back, the jury were warranted in rejecting appellant’s explanation, and in reaching the conclusion that appellant followed deceased out of the store and shot him. Our conclusion therefore is that there was sufficient evidence 'to support the verdict, and that the court was’justified in giving instructions submitting to the jury the issues a's to the higher degrees of homicide.

This also disposes of appellant ’s contention that the court erred in giving instruction- No'. 9,- which told the jury, in the language of the statute, that, where the killing is proved, “the burden of proving mitigating circumstances that justify or excuse the homicide shall devolve on the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter or that the accused" was justified or excused in committing the homicide.” It is earnestly insisted that the proof adduced- by the State showed that the offense was not above the grade of manslaughter, and that therefore this instruction was erroneous, under the rule announced by this court in Tanks v. State, 71 Ark. 459; but, as before stated, our conclusion is that the evidence is sufficient to warrant a verdict for the higher offense, and that, from the proof adduced by the State, it is not“sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing- the homicide. ’ ’

There are other assignments of error with respect to the court’s charge, one that the court erred in refusing to give instruction No. 13, which reads as follows:

“You are instructed that, if you believe from the evidence that when the defendant Beason came into' the store, attracted by the noise of the disturbance, the deceased made a violent and felonious assault upon him, and caught hold of the defendant Beason and pulled him out of the door, and commenced to fight and cut the defendant, then the law would not require Beason to retreat, but he had the right, under the circumstances, to stand his ground and repel force with force, even to the extent of taking the life of the deceased, if the defendant honestly believed, acting on the facts and circumstances from his standpoint at the time, without fault or carelessness on his part, that it was necessary to save •his own life or to prevent his receiving serious bodily ■injury at the hands of the deceased; and, if the jury find that the defendant Beason honestly believed, acting on the facts and circumstances as they appeared to him, from his standpoint, at the time, without fault or carelessness on his part, that the deceased was about to take his life or to do him great bodily harm, then the defendant 'Beason was not required to suspend his defense, even if the deceased, just before the shooting, was apparently withdrawing, if the defendant honestly believed, acting on the facts and circumstances as they appeared to him from his standpoint, at the time, without fault or Carelessness on his part, that the deceased was withdrawing apparently for the purpose of seeking a better position from which to continue and renew the combat.”

All of this instruction, except that part which relates to the deceased apparently withdrawing just before the shooting, was fully covered by other instructions requested by appellant, and we are of the opinion that they fully and correctly submitted the issues to the jury. .There was no testimony to the effect that deceased, after becoming the aggressor, if, in fact, he did become the aggressor, attempted to withdraw. At the time deceased walked out of the store there had been no difficulty between him and appellant. All of the testimony tending to show that the deceased was the' aggressor was that of appellant himself, who testified that deceased grabbed him and dragged him out of the door, and, in the scuffle, cut him with a knife. Appellant makes no contention that deceased was armed except with a knife, and there was no occasion to submit the question of appellant’s right and duty, if the deceased was withdrawing “apparently for the purpose of seeking a better position from which to continue and renew the combat.” Counsel for appellant seek. to invoke the principle announced by this court in the case of Luckinbill v. State, 52 Ark. 45, where the court held (quoting from the syllabus) that “where one is defending himself from an unlawful attempt to shoot him, it is not incumbent upon him to suspend his defense because his assailant is withdrawing himself from the immediate locality of the attempt, if .such withdrawal is apparently for the purpose of 'securing a position from which to renew the combat with -more efficiency.” No such situation arose in the present case, and therefore the court was correct in not giving an instruction applicable to such a state of facts. .

The other assignments of error relate to alleged 'misconduct of jurors and bystanders, constituting exposure of the members of the jury to improper influences. Appellant filed affidavits in support of these ■assignments, which were incorporated in the bill of exceptions. One of the affidavits tended to show that the courtroom was crowded during the trial, and that the audience was permitted to crowd around the bench, about the jury-box and within the bar, and that the court permitted applause from the audience. The court makes a statement of the facts in the bill of exceptions, which refutes the charge of any failure on the part of the court to repress applause or any other misconduct in the presence of the court.

Another charge in the affidavit is that, while the jury was out deliberating, one- of the members stood at a window and communicated by signs with one or more persons out in the courthouse yard. The affidavit named the particular juror who was said to have been the offender in this respect, and a counter-affidavit made by this juror was filed, which shows that he held no communication with outsiders at all, except to make a sign to a man eating an apple out in the yard, indicating that he (the juror) wanted an apple. It was within thé province of the court to pass upon the question whether or not the charge of misconduct was sustained, and we feel bound by the finding of the court on that issue. Payne v. State, 66 Ark. 545; Freels v. State, 130 Ark. 189.

Still another charge in the same affidavits is that, during the recess of the court, while the jury was sitting in the box awaiting the coming of the trial judge, the court room was crowded with spectators, and persons were sitting on the edge of the platform on which the jury sat, and that those persons, as well as others in the court room, talked among themselves. The two affiants who made affidavits on this subject made the following statement: “I do not know what they were talking about, but I know that the people in that part of the courthouse where I was were talking about the case being tried. Considerable excitement prevailed, and considerable feeling was manifested against -the defendant.” Counsel for appellant insist that this statement in the affidavit made a prima facie case of misconduct and noxious influence upon the jury, and that the State has failed to overcome it. We have already stated the effect of our former decisions to be that, where the jury separates after being ordered held together, a prima facie case is made which places the burden on the State to show that the jury was not exposed to improper influences. In addition to the cases we cited, counsel rely upon the comparatively recent case of Holt v. State, 131 Ark. 391. In that case, however, as well as in the other cases cited, there was an actual separation of the jury, and it was held that this placed the burden on the State. In the present case, however, there was no separation of the jury, and therefore the burden abided with the accused to show improper exposure to noxious influences, and the burden never shifted to the State at all. The affidavits in the present case do not show that there was any improper influence, for the affiants did not hear what was actually said in the presence of the jury, and did not know that anything improper was said. The jury was in charge of a sworn officer, and the presumption must be indulged, until the contrary is made to appear, that the officer did his duty and shielded the jury from improper influences. In addition to that, we think that if a pñma facie case had been made by the affidavits it was overcome by the counter-affidavits of juror Ford, who stated that neither he nor the other jurors were subjected to improper influences. The finding of the court on that issue, if there was an issue raised by the affidavits, is binding upon us where there was a conflict in the testimony.

Another charge of misconduct and exposure of a juror to improper influences is based upon the following ■affidavit of Otis Park:

“I know Zack Beason, and I was present at his trial in the Lafayette Circuit Court. On the morning of the second day of the trial, when court was not in session and when the judge was not on the bench, I saw a bystander leaning over one of the jurors,-who were in the box at the time, in the circuit court room, and I saw this bystander .have his face down in about one foot of that of the juror, and the bystander had his hand up to his face and covering his mouth from the side next to the court room, and juror’s face was set in attention as though listening to the bystander- talk to him. I could hear, and, where I .sat, the bystander’s hand shielded his mouth, and I could not see his lips move, but his position and attitude and that of the juror’s appeared to me that the bystander was whispering into the ear of the juror, and the juror was intent upon what he was saying. This trial was at the August term, 1924, of the Lafayette Circuit Court. I am not related to Zack Beason, either by blood or marriage.”

There was no attempt on the part of the State to answer the charge covered by this affidavit, and the question presented is whether or not this affidavit is sufficient to make out a prima facie case so as to place upon the State the burden of showing that none of the jurors were exposed to improper influences. The rule, settled by repeated decisions of this court, is that, where the jury is permitted to separate by order of the court, the mere opportunity for contamination of the jury is not sufficient to place any burden on the State, but that the defendant must prove contaminating influences prejudicial to his case; but, where the court, by its order, holds the jury togethér, without separation, during the recesses of the court, a showing by the defendant of an opportunity for exposure to noxious influences places the burden upon the State of showing that there was no ■ such prejudicial conduct or influences. Maclin v. State, 44 Ark. 115; Vowell v. State, 72 Ark. 158; Holt v. State, 131 Ark. 391; Brust v. State, 153 Ark. 348. We are of the opinion that proof adduced on the part of the accused tending to show that a bystander secretly conversed with a juror or jurors, while the jury was being kept together . under order of the court, even while in the courtroom in charge of an officer, awaiting the approach of the trial judge, is sufficient to cast upon the State the burden of showing that the juror in question was not subjected to any obnoxious influence, provided the testimony is sufficient to put the State on notice so that the burden cast upon it may be met. Now, it will be observed in the present instance that the affiant merely states that he saw a bystander (without naming him) in secret conversation with a juror (without naming him). The affiant not only failed to name either the juror or the bystander, but also failed to furnish any other means of identification of either, or to state that he was unacquainted with either of the parties. If the affiant had named either the juror who was approached, or the bystander, the State would have been in position to call either one or the other to elicit all the facts with respect to the alleged conversation. Or, if the affiant had stated that he was not acquainted with either of the parties, and, for reasons given, could not state any means of identification, the State might even have gone to the extent of sending for all the members of the jury, but merely to state, in the affidavit, that an unnamed bystander approached one of the jurors in conversation is too vague and .insufficient, we think, to cast upon the State the burden of showing that no such incident occurred, or, if it did occur, that the conversation was harmless.

' Another charge of misconduct is that the court put under oath Deputy Sheriff Bowe, who took charge of the jury, but that, during the night, he left the jury in the jury-room for a short time, in- charge of Lester, another deputy sheriff, who had not been sworn. The State filed a counter-affidavit by Lester to show that Bowe was only absent long enough to go on an errand to procure a watermelon for the jury, and that none of the jurors left the room during his absence or conversed-with any one else about the case.

This answers all the assignments of error, and we are of the opinion that none of them is sustained.

It follows therefore that the judgment must be affirmed, and it is so ordered.


text:
    Merchants’ Bank of Kansas City v. Searcy Wholesale Grocer Company.
    Opinion delivered November 10, 1924.
    1. Appeal and error — concluspveness op court’s finding. — In trials at law before the court as well as before the jury, a finding of fact will not be disturbed when based on conflicting evidence if there is substantial evidence to support the finding.
    2. Banks and ranking — ownership of draft. — Where a draft was drawn by a seller on the buyer in favor of a bank for the price of a shipment, the draft became the property of the bank when it credited the amount of the draft to the seller’s checking account, and the proceeds of the draft were not subject to garnishment while in the hands of the bank to which the payee bank had sent it for collection.
    3. Customs and usages — evidence.—'Testimony as to the custom of bankers in a particular locality is inadmissible to prove the custom in another locality.
    4. Evidence — admission.-—Where a bank purchased a draft drawn in its favor by a seller on the buyer for the price of a shipment of goods, the act of the bank in consulting the seller to determine whether a requested credit should be allowed "to the buyer was not an admission that the draft was not the bank’s property, as the seller would be liable to the .bank as drawer if the draft-should not be paid.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Brundidge <& Neelly, for appellant.
    Where a draft is indorsed to and deposited with a hank, which credits the amount to the holder’s account, the bank becomes the absolute owner of the draft. 142 Ark. 336; 147 Ark. 321; 138 Ark. 321; 107 Ark. 601. In the absence of fraud or bad faith, a bank which discounts a draft with bill of lading attached is not answerable to the drawee for the performance of the consignor’s contract. 44 L. R. A. (N. S.) 600; 33 L. R. A. (N. S.) 954; 18 L. R. A. (N. S.) 1221; 6 L. R. A. (N. S.) 242; 49 L. R. A. (N. ¡3.) 679; 4 R. C. L. § 36, p. 34.

      John E. Miller, for appellee.
    The findings of a circuit court sitting as a jury will uot be disturbed where there is substantial evidénce to sustain them. 148 Ark. 156; 152 Ark. 498; 153 Ark. 212; 155 Ark. 593; 144 Ark. 170; 111 Ark. 190; 100 Ark. 166; 157 Ark. 167; 145 Ark. 466; 150 Ark. 43.
   McCulloch, C. J.

Appellee, Searcy Wholesale Grocer Company, is a domestic corporation doing business at Searcy, Arkansas, and it instituted this action in the circuit court of that county against the Michael- ' Swanson-Brady Produce Company, of Kansas City, to recover the sum of $237.75 for damages sustained by reason of alleged depreciation, by decay and otherwise, of a part of a carload of potatoes sold and shipped by said defendant to appellee. A garnishment was issued at the instance of appellee against the Bank of Searcy as garnishee, and the garnishee answered that it had in its possession the sum of $306.77, the proceeds of a draft drawn on appellee by defendant in favor of appellant, Merchants’ Bank of Kansas City. Appellant appeared as intervener in the cause, and claimed the proceeds of the draft as its property. There was a trial of the issues before the court sitting as a jury, and the court found in favor of appellee for the recovery of the amount claimed against the defendant, and also found that the funds in the hands of the garnishee were not the property of appellant, but were the property of the defendant, and rendered judgment accordingly. The defendant, Michael-Swanson-Brady Produce Company, did not appear in the action.

The sole contention here is that the finding of the court was not supported by any evidence, and we must, of course, follow the well-established rule that, in trials at law before the court as well as before a jury, the finding will not be disturbed, when based on conflicting evidence, if there is testimony of a substantial nature in support of the finding or verdict.

The facts- developed at the trial by uncontradicted evidence are that appellee purchased a carload of potatoes from defendant, Michael-Swanson-Brady Produce Company, the price being the sum of $306.77, and defendant shipped the car of potatoes by rail to appellee, and drew a draft on appellee in favor of appellant for the price of the potatoes; that appellant credited the amount of the draft to defendant’s cheeking account on the hooks of the bank and forwarded the draft to the garnishee, Bank of .Searcy, for collection. Appellee paid the draft, but, as before stated, caused a writ of garnishment to he issued and served while the funds thus collected were still in the hands of the Bank of Searcy. The trial court made a finding that the proceeds of the draft paid by appellee to the garnishee bank were not the property of appellant, but that the latter was merely the agent of the defendant in the collection of the draft, and that the proceeds thus collected were the property of said defendant and subject to garnishment for its debts. We are of the opinion that the court’s finding of fact on this issue was unsupported by the testimony, and that the case is controlled by the decision of this court in Cox Wholesale Gro. Co. v. National Bank of Pittsburg, 107 Ark. 601. The facts of that case were identical with the present one, except that, in that case, the draft was payable to the drawer’s own order and was indorsed to the hank, whereas in the present instance the draft was drawn in favor of appellant bank and was delivered without indorsement. In each case all that was shown was that the draft, upon delivery, was passed to the credit of the checking account of the drawer. In the opinion in the case just cited we quoted with approval from the decision of the Supreme Judicial Court of Massachusetts in the case of Taft v. Bank, 172 Mass. 363, as follows:

“So when, without more, a bank receives upon deposit a check indorsed without restriction, and gives credit for it to the depositor as cash in a drawing account, the form of the transaction is consistent with and indicates a sale, in which, as with money so deposited, the check becomes the absolute property of the hanker.”

The only additional question presented in the present case is whether or mot there is anything more shown by the testimony in this case to detract from the force of the facts stated above. Appellee introduced as witnesses several bankers of Searcy, who testified that they were acquainted with tbe general practice or custom of banks in'handling drafts for perishable products sold by customers, and that the custom was to receive the draft for collection and pass it to the credit of the checking account of the drawer, treating the draft as a line of credit until finally paid. Each of these witnesses, save •one, testified, however, that they did not know the custom of the Kansas City banks, and that witness stated his own conclusion, without showing any knowledge or information on the subject, except the fact that several 'drafts had come through his bank. It is contended that this was sufficient to raise a conflict in the testimony as to whether or not appellant bank received the draft as the absolute owner, or whether merely for collection as agent of the drawer. We do not think that this testimony has any probative force. In the first place, it is not applicable, because the witnesses knew nothing about the custom of banks in Kansas City.

Again, it is argued that the' testimony to the effect that appellee first made claim for $48.31 for deduction for part of the freight, and that appellant agreed to allow this deduction, but later refused to allow an additional deduction for damages, stating, in the correspondence, that the drawer of the draft would not consent, was sufficient to constitute an admission on the part of appellant that the draft was the property of the defendant. We do not think so. The fact that appellant referred the claim of appellee to the drawer of the draft to determine whether or not a credit should be allowed, does not change the effect of the draft being drawn in favor of appellant and credited to the account of the defendant. Notwithstanding the fact that the draft became the absolute property of appellant as the party in whose favor it was drawn, yet the defendant was liable to appellant as drawer if the draft was not paid. Therefore, the act of appellant in consulting the drawer or in carrying out the wishes of the drawer did not concede that the draft was not its absolute property.

Finally, it is contended that the draft was not the absolute property of appellant for the reason that there was no indorsement, but the answer to that contention is that an indorsement was unnecessary, the draft having been drawn in favor, of appellant.

The finding of the court being without evidence, it must be set aside and a new trial granted. The judgment is therefore reversed, and the cause remanded for a-new trial.

Wood, J., dissenting.


author: Mc'Cullooh, C. J.

text:
    Warmack v. Williamson.
    Opinion delivered November 10, 1924.
    1. Equity — motion to set aside decree — evidence.—-On defendant’s motion to set aside a decree in plaintiff’s favor, evidence as to an alleged agreement by plaintiff to dismiss the action held insufficient to warrant the court in setting aside the decree.
    2. Equity — refusal to set aside decree. — Where, on defendant’s petition to set aside a decree in plaintiff’s favor, the trial court heard all the testimony anew, and no request was made for time to introduce any further testimony, and the original decree was correct on the evidence, the court properly refused to set aside the decree.
    3. Vendor and purchaser — fraudulent representation. — The fact that the purchaser of land indorsed without recourse notes to the vendor as part payment did not absolve him from liability for false representations as to the security on such notes.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    affirmed.

      J. M. Garter -and B. E. Garter, for appellant.
    One who indorses ‘‘without recourse” is a qualified indorser. C. & M. Digest, § 7804. Such an indorser warrants merely (1) that the instrument is genuine in all respects what it purports to be; (2) that he has a good' title to it. C. & M. Digest, § 7831. Where one, by mistake or fraud, has gained an unfair advantage in proceedings in a court, which must operate to make that court an instrument of injustice, courts of equity will interfere and restrain him from reaping the fruits of the advantage thus improperly gained. 89 Ark. 359; 73 Ark. 281; 128 Ark. 59. The lower court abused its discretion in refusing to set aside the decree and to allow appellant to defend the suit. 9 Ark. 354.

      M. E. Sanderson, for appellee.
    A person seeking to set aside a judgment.rendered against him by default must state his defense and make a prima facie showing of merit, in order that the court may determine whether he is injured by not being permitted to have the benefit of it. 123 Ark. 443. One who seeks to vacate a default judgment on the ground of fraud assumes the burden of proving such fraud. 93 Ark. 462. A person will not be relieved against the legal consequences of his default, except to enable him to interpose a meritorious defense. 9 Ark. 354; 5 Ark. 183.
   Mc'Cullooh, C. J.

Appellant prosecutes this appeal from an order of the chancery court of Miller County refusing to set aside a decree rendered against him in favor of appellee by that court on a former day of the same term. The original decree was rendered by the court on .September 1, 1923, and the order refusing to set it aside was rendered by the court, on September 15,1923.

The basis of the effort to have the orginal decree set aside is an allegation by appellant that appellee, through her attorney and agent, promised, after the institution of the action, to dismiss it, and that the decree was taken in violation tof that agreement and without notice to him.

The litigation arose out of the sale of a plantation in Miller County by appellee to appellant. Appellee owned the property, and on January 18, 1923, sold and conveyed it to appellant for a consideration of $80,000, of which $40,000 was to be paid by the assignment of four notes held by Appellant, aggregating the sum of $40,000, executed to him by a Mrs. Franklin and secured' by a third mortgage on an apartment house in Kansas City, Missouri. Appellant was to borrow, and clid borrow, from a joint stock land bank $28,000, wbicb was paid over to appellee, and for tbe remaining sum of $12,000 of tbe purchase price be gave appellee notes and executed a mortgage on tbe conveyed property, subject to tbe mortgage given to tbe joint stock land bank. Appellant assigned the notes to appellee by indorsement without recourse, and, as before stated, the notes were accepted as part payment of tbe purchase price of the plantation. Appellant took possession of tbe plantation and operated it during tbe year 1923.

.Appellee commenced tbe present action against appellant on July 12, 1923, alleging that appellant bad induced her to accept tbe notes of Mrs. Franklin by false and fraudulent representation that tbe notes were then ° secured by a third mortgage on tbe Kansas City property, whereas, in truth and in fact, Mrs. Franklin bad, before that time, conveyed tbe property to appellant in payment and cancellation of tbe notes. Tbe prayer of tbe complaint was that the assignment of tbe notes to appellee be canceled on account of tbe alleged fraud and that she recover of appellant tbe amount thereof, $40,000, with interest, and that a lien be declared on tbe land for tbe amount.

Immediately after tbe institution of the action and tbe service of summons on appellant, be went to see appellee and her attorney, and be claims that they then and there agreed that they would dismiss tbe action and give him time to make a resale of tbe plantation, wbicb be claimed be could do within a reasonable time, and that be would, in oase of a resale of tbe property, give them one-fourth of all tbe price of tbe sale of his equity over and above $40,000. Appellee denies that she made that agreement Appellant claims that, as soon as tbe alleged agreement with reference to tbe dismissal of tbe action was made between him and appellee, be proceeded with bis efforts to sell tbe plantation, but did not succeed, though bis efforts were continued up to tbe time he received notice of tbe decree, and that appellee, in violation of the agreement, procured the decree on September 1,1923, without notice to him; that he had no information that the suit had not been dismissed until after he heard that the decree had been rendered.

Appellant testified in support of his claim concerning the agreement to dismiss the action, and his testimony tended , to support his claim. He was also supported by the testimony of Ms son, who testified that he was present at the conference between appellant and appellee, and that the alleged agreement to dismiss the action was, in fact, entered into.

Appellee and her attorney both testified that there was no agreement made to dismiss the action, except a proposal made in a certain letter written by appellee’s attorney and delivered to appellant. They testified that there was a conference between them and appellant, at wMch appellant proposed to sell the land and divide the profits as claimed by appellant, but that no agreement was reached in the conference. W. L. Perkins, a real estate agent, who negotiated the transaction between the parties, was also present at the conference, and he testified to the same effect as the testimony of appellee and her attorney. Perkins was to assist appellant in making a resale of the property. The next day after this conference, or the day thereafter, appellee’s attorney addressed a letter to Perkins, setting forth the terms and conditions upon which appellee would deal further with appellant in regard to the resale of the plantation. In tins letter it was proposed that, if appellant would find a purchaser for his equity in, the plantation who would assume the payment of the mortgage to the joint stock land bank and the second mortgage to appellee, and pay all the accrued interest on these mortgages, and pay appellee $5,000 in cash, and either pay or satisfactorily secure the amount of $8,000, with interest, which appellee had advanced to appellant, appellee would agree to dismiss the action. The letter concluded as follows“For your information, the chancery court, where this suit is brought, will not be in session again until the first day of September, so you. can see no action can be taken until that time. I am willing to cooperate with you in making a trade that will bring about a settlement indicated in this proposition, but I am not willing to go any further than is suggested in this letter.” Perkins was directed to deliver this letter to appellant, and he immediately did so. He testified that he thought the letter was addressed to appellant himself, and that appellant read the letter, and they discussed it. He testified that he told appellant that “he had better look after this thing, that somebody might catch him with his pants down,” and that appellant replied that he “was looking after all that, that he had this letter. ’ ’

We are of the opinion that appellant has not made a sufficient showing of promises or conduct on the part of appellee or her attorney to call for setting aside the former decree of the court. The preponderance of the evidence is against him on the issue. Certainly it cannot be said that the preponderance of the evidence is against the finding of the chancellor. The testimony of appellant is supported only by .that of his son, and it is in conflict with the testimony of appellee and her attorney and Perkins. In addition to that, appellant admits that he received the letter which was delivered to him by Perkins, on the next day after appellant’s conference with appellee and her attorney. He admits he read the letter, but that, after reading it, he went to see appellee’s attorney again, that he understood the suit had already been dismissed, and proposed that a writing be prepared and sig*ned evidencing the agTeement, but that appellee’s attorney replied that “that was not necessary; they would attend to that.” This is all denied by the attorney, and appellant’s testimony is in conflict with that of appellee and her attorney and Perkins. After reading the letter from appellee’s attorney, appellant had no right to assume that the suit had been dismissed, or would be dismissed, or that the proceedings would be postponed later than 'September 1.

There is still another reason why the court was not in error in refusing to set aside the decree: that is, that the court heard all the testimony anew on the petition to set aside the original decree, no request was made for-time to introduce any further testimony, and the original decree was correct on the evidence finally adduced.

The fraudulent misrepresentations claimed hy appellee to have been made to her by appellant were fully made out by the proof. It is uncontradicted that, at the time appellant purchased the plantation from appellee and transferred the Franklin notes to her, Mrs. Franklin had, more than eight months before that time, executed to him a deed conveying to him her'equity in the Kansas City property in cancellation of the notes. This deed was placed on record by Mrs. Franklin herself, and mailed to appellant. This extinguished the notes, which no longer constituted a lien, as the legal title had been conveyed to appellant in satisfaction of the notes. It is true that appellee would have had, on discovery of those facts, a right of action to set aside the cancellation of the notes, so far as concerned appellant himself, and reinstate the mortgage lien as against appellant, but this would have meant a lawsuit, and, as against any subsequent innocent purchaser, would not have been available. Appellant claims that he did not accept the conveyance from Mrs. Franklin, and that he reeonveyed the property to her, but the proof shows that this reconveyance was not executed until after the commencement of the present action, and that the deed was not actually delivered to Mrs. Franklin. Appellant’s indorsement of the notes was without recourse, but this fact did not absolve him from the effect of his alleged false and fraudulent representations to appellee, at the time he purchased the plantation from her, that the Franklin notes constituted a lien on the Kansas City property. In either view of the matter we are of the opinion that the chancery court was correct in refusing to set aside the original decree, and its order in that respect is therefore affirmed.


author: Wood, J. Hart, J.,

text:
    Walt v. Phillips.
    Opinion delivered November 10, 1924.
    1. Evidence — weight determined how. — -The preponderance of evidence is not to be determined 'by numbers or color or character of the witness, but all elements are to be considered in connection with the subject-matter of the testimony of each witness, such as his intelligence, character, interest and relationship to tho parties, and his means of information.
    2. Appeal and error — conclusiveness of chancellor’s finding.— Where the evidence is evenly poised, so that the Supreme Court is unable to determine in whose favor the preponderance lies, the findings of fact by the chancellor are persuasive, and will not be disturbed.
    3. Waters and watercourses — construction of levee. — In a suit by a landowner to restrain an adjoining landowner from constructing a levee across a bayou carrying water from plaintiff’s to defendant’s land, evidence held to warrant a finding that such bayou is a natural “watercourse” within the accepted definition of such term, and that the levee would prevent the flow of water through the .bayou and cause it to back up and overflow plaintiff’s land to his substantial and permanent injury.
    4. Water and watercourses — orstruction of flow — injunction. — Equity will grant relief where raising of the water in a watercourse will cause substantial and permanent injury to upper riparian lands, even though the rights have not been established at law.
    Appeal from Jefferson 'Chancery Court; JoJm M. Elliott, Chancellor;
    affirmed.

      Coleman S Gantt, for appellants.
    The court erred in making the temporary injunction perpetual. A channel which carries no water except the overflow of rain in times of flood is not a watercourse. 14 Pac. 625; 66 Ark. 271. Surface waters are a common enemy, which any landowner may defend ag’ainst without incurring liability or damag-es, unless injury is unnecessarily -inflicted upon any one, which, by reasonable effort and expense, could be avoided. 95 Ark. 345; 157 Ark, 618. In the draining of one’s land of surface water it is not permissible to direct the flow of water upon the adjoining land, or to increase the volume of -the flow by the construction of a drain or ditch. 95 Ark. 242.

      W. D. Jones .and 8. J. Hunt, for appellee.
    The injunction was properly granted. 40 Ark. 83; 99 Ark. 13'2; 1 High on Injunctions (4th ed.) § 794 et seq.; Farnham on Waters and Watercourses, §§ 582 and 522. The waters of a stream in their natural flow cannot be obstructed or diverted so as to damage the land o£ another. One who does so is liable for the damages thus wrought. 57 Ark. 512; 57 Ark. 387; 78 Ark. 5iS9; 87 Ark. 875; 89 Ark. 556.
   Wood, J.

J. P. and J. B. Walt, hereafter called appellants, and L. L. Phillips, hereafter called appellee, are adjoining landowners in Jefferson County, Arkansas. The lands of appellants in sections sis and seven are divided from the lands of the appellee in section one by a public road running north and south along the range line between their plantations. Appellants’ lands lie east of the road, in range 7, and appellee’s land lie west of the road, in range 8. The public road has been gradually built up for a period of some fifteen years until it is higher than the lands on either side.

This action was instituted by the appellee against the appellants in the chancery court of Jefferson County. The appellee alleged that there is a bayou, known as Brown’s Bayou, which lias its source on the Brown place, near the town of Altheimer, and from thence flows, in the natural course of drainage, through other plantations and through the plantation of the appellee, and across the public road dividing the plantation of the appellee from that of the appellants, and on, throug’h appellants’ plantation, into what is known as Five Forks Bayou; that', if unobstructed, the bayou does not affect or damage the appellee’s lands. It is alleged that the appellants, without regard to the appellee’s rights, were constructing a large levee across Brown’s Bayou, at the point where the same enters appellants’ land, for the sole purpose of preventing the water which flows through Brown’s Bayou from passing through the regular and natural drainage channel; .that, if the levee were permitted to be constructed, it would prevent the flow of water through Brown’s Bayou and cause it to back up on the lands of the appellee, to his great damage. The appellee prayed that the appellants be restrained from constructing such levee.

The appellants answered and denied all the allegations of the complaint, and alleged that the levee they were then constructing is a small levee, about 1,400 feet long, on their own lands in section 6, township 5 south, range 7 west, for the purpose of preventing surface waters from flowing across their lands in time of freshet and large rainfalls; that the dividing line between the lands of the appellants and appellee is a public road running north and south, along the side of which, and parallel with the road on the west side thereof, is a canal or ditch twenty feet wide, constructed by the Jefferson County Drainage District No. 2 for the purpose of carrying any water out of Brown’s Bayou and any surface water flowing into such canal into Wabbaseka Bayou; that the appellants are taxpayers of the drainage district, and are taxed solely upon the theory of betterment to their lands in having the water diverted therefrom by the drainage district; that there has never been any culvert across the public road for the purpose of enabling the waters on the west side of the road to cross to the east side, and that it is only in times of unusual freshet that the surface waters from appellee’s plantation overflow said canal and public road So as to put a part of same upon the lands of appellants; that such waters are strictly surface waters, and do not constitute the waters flowing through Brown’s Bayou in a natural stream; that the location of appellants’ levee is in a high state of cultivation, and has been for more than seventeen years;. that the levee was then being- constructed across cotton rows; that there has never been a natural stream running across appellants’ lands at any point along said levee. Appellants prayed that appellee’s complaint be dismissed for want of equity.

The cause was heard upon the testimony, by depositions, and also oral testimony before the court, and upon maps and photographs of the locus in quo. The trial court found that Brown’s Bayou is a natural course, through which the water coming into it at its source now flows and has flowed in the same channel for many years; that Brown’s Bayou begins about the Brown place, in Jefferson County, and flows in a southeasterly direction through other plantations and through the plantation of the” appellee, and on in a southeasterly direction through the plantation of the appellants, and continues its flow in a southeasterly direction, after leaving the plantation of appellants, through other plantations and farms, finally emptying into Five Forks Bayou and Fish Lake; that Brown’s Bayou ran across the public road at a certain point between the plantation of appellee and appellants, and continued from that point through the lands of appellants; that the effect of the construction of the levee contemplated by the appellants would be to prevent the flow of water through the channel of Brown’s Bayou and to back the same over a large portion of the land of the appellee, so that no crops could be raised thereon in any years of ordinary rainfall, to appellee’s great damage and irreparable injury. Upon these findings the court entered a decree directing appellants to remove such part of the levee as had already been constructed and restraining them from the further construction thereof. From that decree is this appeal.

1. The issue presented by the pleadings is whether Brown’s Bayou is a natural stream or watercourse which ran through the lands of the appellee and across the public road, on to the lands of the appellants, at a point where the latter are constructing a levee, and whether this levee, when constructed as contemplated by the appellants, will so obstruct the natural watercourse or stream as to injure and damage the lands of the appellee. The appellants contend that the photographs showing the premises at the point in controversy demonstrate that no bayou runs through at the point where the appellants are constructing their levee, and that the testimony of the engineer, Bennett, in connection with the drawing prepared by him and attached to his deposition, also demonstrates that Brown’s Bayou does not flow across the public road on to appellants’ land at the point where the appellants are constructing their levee, and that this fact is also shown by the testimony of nineteen other witnesses. These witnesses appellants name, and say they are white men, and, because of their high standing and personal familiarity and knowledge of the matters involved, are peculiarly qualified to testify, and that their testimony establishes the fact that Brown’s Bayou does not cross the road where appellants are building their levee.

On the other hand, the appellee contends that the facts testified to by appellants’ witnesses aré controverted and rebutted by Engineer W. J. Parlies and twenty-one witnesses on behalf of the appellee, who were also white persons, and, by reason of their familiarity and knowledge of the premises, are equally reputable as the witnesses for the appellants and as worthy of belief; that the testimony of these witnesses' shows that they were better acquainted with the country through which Brown’s Bayou flows, and with the course of the bayou, than weré the white witnesses for the appellants, and that, in addition to these, the appellee has adduced the testimony of nine negro witnesses, all of whom were worthy of belief, and, on account of their familiarity with the matters in controversy, were in a position to know as much, if not more, than the majority of the witnesses who testified for the appellants.

This is an immense record of nearly seven hundred pages. ¡We have carefully examined and weighed the testimony, including photographs and maps, with a view of determining, if- possible, where the preponderance lies as to the essential facts in controversy. While numbers are to be considered, the preponderance is not to be determined alone by numbers, neither can- it be determined by'the color or character of the witnesses; but 'all elements are tó be considered in connection with the subject-matter of the testimony of each witness, such as the intelligence of the witness, or lack of intelligence, his.'character, his interest, and relationship to the parties, his means of information, and his opportunity for knowing the facts to which he testified. It is wholly impractical to set out and discuss in detail the testimony of •the witnesses. After duly considering and weighing , all these elements, it occurs to us that the facts of this record present a typical case for the application of the doctrine announced in the case of Leach v. Smith, 130 Ark. 465-470, and other cases, to-wit: “Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive.” In all such oases the findings of fact by the chancellor will not be disturbed, but his findings will be adopted by this court.

2. The trial court found that Brown’s Bayou is a natural watercourse, and that the levee which appellants were building, if completed, would prevent the flow of water through the channel of Brown’s Bayou and overflow the appellee’s land, to his damage and irreparable injury. The issue was a mixed one of law and fact.

“A watercourse is defined to be a running stream of water, a natural stream, including rivers, creeks, runs and rivulets. There must be a stream usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel and have a bed and banks, and usually discharge itself into some other stream or body of water. It -must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshet or other extraordinary causes.” Boone v. Wilson, 125 Ark. 364. The finding that Brown’s Bayou was a watercourse was warranted, under the evidence, and was in accord with the above definition. The law is well settled that “equity will grant relief in the case of the raising of water in a watercourse by means of a dam, to the injury of upper riparian lands, where the injury is substantial and permanent, even though the rights have not been established at law. The reason is that, where the defendant maintains a dam and continues to flow the land of plaintiff, asserting his right to do so, he is in the -situation of a party maintaining a nuisance.” Taylor v. Rudy, 99 Ark. 128, and authorities there cited.

The decree is correct, and it is therefore affirmed.

Hart, J.,

(dissenting). My dissent in this case is principally based upon a question which was not considered in the majority opinion. Therefore, in order that my position may be understood, it becomes necessary for me to write a dissenting opinion.

It seems to me that the construction of the lateral ditch between the farms of Phillips and Walt by the drainage district for the purpose, of better taking care of the drainage on the two- places precludes Phillips from maintaining the suit in question. This, we think, results from the undisputed evidence which I shall proceed to discuss, after laying down the principles of law which I think should govern. •

It is well settled that the Legislature has the power to -create drainage districts for the purpose of reclaiming or improving swamp and overflowed lands by ditches and drains and levees. -Su-ch districts may be invested with all the necessary authority to construct and maintain whatever main ditches or laterals may be necessary to accomplish such object and to raise money to pay for the same by assessments on the lands to be benefited thereby.

More than ten years ago a drainage district was organized for the purpose of reclaiming and improving the lands within its boundary. Both the Walt and the Phillips farms were included in the district. After the main ditch or canal was dug, it was thought that part of the lands could be drained better by constructing a lateral ditch between the farms of Walt and Phillips. There was a public road between the two farms. The farm of Walt was on the east side and that of Phillips was on the west side of this public road.

According to the testimony of one of the commissioners of the-drainage district, all of the dirt taken out of,, the lateral ditch was piled on the east side, because of the drainage of. the lands lying on the west side of the lateral. The public road was thus built up about a foot higher than it was before the lateral ditch was constructed.

" J. P. Walt was also one of the commissioners of the drainage district.- According to his testimony, before the main canal running east to Wabbaseka Bayou, on the north side of his farm, was finished, they dug' a lateral between the Phillips and Walt farms three-quarters of a mile long. The lateral connected at its north end with the main canal. The lateral was sixteen feet at the top, twelve feet wide at the -bottom, and five feet deep. The whole country around there drained southeast.

According to the testimony of Clayton P. Gould, an engineer, the main canal of the drainage district runs along the north boundary line of the Walt lands and empties into the Wabbaseka Bayou. It is -a large canal, twenty feet wide at the bottom, and has plenty of fall. The lateral between the Walt and Phillips lands lies between the public road and the Phillips land and connects with the main canal on the north.

••Prank W. Berry, a farmer, who has also studied civil engineering, was a witness for appellee. He made an examination of the conditions at the request of the appellee. The public road between the Walt and Phillips farms is eighteen inches higher than the lands adjacent to the road on the Phillips farm. There was a ditch fifteen or twenty feet wide running north on the west side of -the road. Brown’s Bayou goes into this canal, on the land of Phillips.

J. H. Bryson was another witness for appellee. According to his testimony, before the lateral was constructed there was a bridge across the public road, ten or fifteen feet wide, and Brown’s Bayou flowed between the opening from -the land of Phillips on the west side of the road to that of Walt on the east side thereof. There was no flow of water in Brown’s Bayou, except in the rainy season, but it flowed in the same channel.

J. W. Bellamy, another witness for appellee, testified that the bridge was torn up when the lateral .was dug, and that the road has been filled .since that time.

W. J. Clary, another witness for appellee, testified that Brown’s Bayou plays out, so far as having any bank, somewhere on the Phillips place. From there on the water simply follows the low places in the surface of the land. A good deal of water from Brown’s Bayou flows into the lateral canal. Dirt .out of this canal made the public road between the Walt and Phillips farms. The road operates as a levee, and is a foot higher than it was before the construction of the lateral.

C. J. Collier, another witness for appellee, testified that he had known Brown’s Bayou and the territory where it was located all of his life. The well-defined •banks of Brown’s Bayou stop after entering the Phillips farm. It then scatters; just flattens out. It crossed the road between the Phillips and Walt places, not with well-defined banks, but with the depression in the slope of the country; but it has followed the same channel all the time.

Other witnesses testified that two small ditches were cut on the farm of Phillips after the lateral was dug in order to carry the water from Brown’s Bayou into the lateral.

Other testimony tended to show that the lands in the depression or swale caused by Brown’s Bayou on part of the land of Phillips was cultivated. '

While the evidence for appellant tends to show that the lateral was adequate to carry off the water as planned, the evidence for appellee tends to show that a lateral built through the land of Walt in a southeasterly direction would have given better drainage than the lateral in question. But, whether or not the lateral was located upon the best, cheapest and most available route, was a matter addressed to the judgment of the drainage commissioners at the time the lateral was constructed. It was the duty, of the commissioners to locate the drains upon lines that they deemed best to accomplish the object sought, .and their determination in the matter is not the subject of collateral attack in a proceeding like this.

The Legislature may authorize that natural streams may be straightened, widened, and deepened, where, in the judgment of the drainage commissioners, the proposed system of drainage can be more effectively accomplished in that manner. Terre Noire Dist. No. 3 v. Thornton, 93 Ark. 332.

It follows that "the course of the natural flow of the water need not be followed and that the fact that the route intersects natural watercourses does not make it invalid. In assessing the benefits, the commissioners of the drainage system necessarily took into consideration, the change of the natural flow of tlae water by the construction of the ■ lateral in question and the advantage and disadvantage it would be to the lands bordering upon the lateral.

The result of my views is that it was the duty of the drainage commissioners to .select the most available and practical route for the drainage ditches, and that, having decided that a lateral built between the Walt and Phillips farms and extending north to the main canal, providing for Brown’s Bayou to flow into it, was the most available route, the landowners have no right, more than ten years afterwards, to ’change that route and readopt the old drainage.

It will be remembered that the dirt excavated in digging the lateral was thrown into an embankment which, although it became a public road, constituted a part of the drainage system. Hence appellee had no right to cut through, it or in any other way to materially interfere with the system of drainage adopted by the drainage commissioners, and; if he wrongfully did so, appellant had the right to. protect his lands by constructing the levee in question on his own lands.


author: Hart, J.,

text:
    Grayson v. Hughes.
    Opinion delivered November 10, 1924.
    1. Trusts — evidence.—Evidence held to establish that a quitclaim deed given by intestate’s widow and certain of his heirs to a coheir was for the purpose only of paying off a mortgage, and therefore the grantee held in trust for that purpose.
    2. Trusts — breach up trust. — Where lands were granted in* trust . to enable the grantee to incumber them to pay off an existing mortgage, a purchase of the lands by him at foreclosure sale was a violation of the trust, and did not convey any better title than he already had.
    3. Trusts — authority op trustee to convey. — Where heirs quitclaim their land to enable a coheir to pay off their ancestor’s mortgage, and he, in violation of the trust, purchased the lands at foreclosure sale and then sold oil rights for more than enough to discharge the mortgage, he thereby carried out the terms of the trust, and had no right which he could convey except to innocent purchasers.
    4. Vendor and purchaser — notice op equities. — Evidence held to show that a purchaser of land from one who in fact held as trustee had either actual knowledge of such trust or notice of such facts and circumstances as by inquiry would lead to knowledge thereof.
    5. Trusts — allowance to trustee for improvements. — A trustee is not entitled to reimbursement for unauthorized improvements on the trust property, especially where he does not show what value they added to the property.
    Appeal from Ouachita Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.
    ' STATEMENT OE EACTS.
    Appellees brought this suit in equity against appellants to cancel certain deeds and oil and gas leases whereby the title to the lands described in the complaint was divested out of appellees and invested in appellants.
    Appellants claimed title to the lands in themselves, and appellant, P. C. Grayson, interposed the further defense that he was an innocent purchaser for value of the lands.
    The lands in controversy comprised 200 acres, and originally belonged to Sam A. Hughes. On April 14, 1917, Sam A. Hughes and Maria Hughes, his wife, executed a deed of trust to said lands to Sam Pruett, trustee, to secure the payment of an indebtedness of $1,286.41 to Lester & Haltom. In August, 1918, Sam A. Hughes died intestate in Ouachita County, Arkansas. At the date of his death he resided with his wife on the lands in controversy and occupied them as his homestead. No part of the mortgage indebtedness above set forth had been paid at the date of his death.
    On the 9th day of January, 1919, Maria Hughes, the widow of Sam A. Hughes, and Charlie Hughes and Ada Bell, his son and daughter, executed a quitclaim deed to said lands to Jim Hughes, another son of the said Sam A. Hughes. The consideration recited in the deed is the balance due on the mortgage on the lands and the further consideration of $10. The lands in question were sold by Sam Pruett, as trustee, in accordance with the provisions of the power of sale contained in the deed of trust, and Jim Hughes became the purchaser at the sale for $1,500. On the 17th day of May, 1919, Sam Pruett, as trustee, executed a deed to said lands to Jim Hughes.
    In addition to the facts recited above, this deed also recites that Lester & Haltom had transferred the deed of trust under which the lands were sold, together with the notes secured by them, to P. C. Grayson. On the 11th ■ day of June, 1919, Jim Hughes and his wife executed a deed of trust to said lands to Sam Pruett, as trustee, to secure P. C. Grayson in the sum of $1,500. On the 16th day of May, 1919, Jim Hughes gave an oil and gas lease on said lands to J. H. Hughes for the term of five years. On January 20,1920, Jim Hughes executed a deed of trust to said lands in favor of P. C. Grayson to secure him in the sum of $2,800. On the 12th day of June, 1920, Jim Hughes and wife executed a deed to P. C. Grayson to a one-half interest in all the oil, gas and minerals on said lands. On the 26th day of October, 1920, Jim Hughes and wife executed a deed to P. C. Grayson to 120 acres of said land, and the consideration recited in the deed is $1,200. On April 26, 1920, Jim Hughes and wife sold one-eighth, of the oil, gas and minerals in said lands for the sum of $2,000. Out of this money he paid P. C. Grayson $1,500 and kept the balance. Jim Hughes owed P. O. Grayson $2,800, including the $1,500 borrowed from him to satisfy the mortgage given by Sam A. Hughes to Lester & Haltom.
    According to the testimony of Maria Hughes, she signed the quitclaim deed to her son, Jim Hughes, to the lands in question in order to pay off the mortgage which she and her husband had executed on the lands in favor of Lester & Haltom. She does not know why Jim Hughes bid in the lands in his own name at the sale of Pruett, trustee, on May 17, 1919. She knows nothing about the mortgage given by her son, Jim Hughes, to P. C. Grayson, in June, 1919. She gave her son no authority to execute this mortgage, and did not know anything about her son executing the second mortgage to Grayson to secure a note of $2,800. She did not give him any authority to execute this mortgage. She did not know anything about her son conveying one-half of the oil, gas and minerals on said lands to P. O. Grayson in June, 1920. She did not know anything about the conveyance by Jim Hughes to P. C. Grayson of 120 acres of the said lands in October, 1920. She and her son, Jim Hughes, have both been living on the lands since before her husband’s death, but they have lived in separate houses.
    According to the testimony of Charlie Hughes, his brother, Jim, asked him to sign the quitclaim deed in order to enable him to raise the money with which to pay off the mortgage which had been executed by their father. It was the understanding that he was to get his share in the lands after the mortgage had been paid off. He did not give Jim Hughes any authority to sell the lands or any part of them, except to pay off the mortgage indebtedness of their father.
    According to the testimony of Ada Bell, sh-e executed a quitclaim deed to the lands to her brother, .Tim Hughes, for the purpose of raising money with which to pay off the mortgage indebtedness of their father. Jim Hughes gave her a contract that, as soon as the mortgage was raised on the place, he would deed her share back to her.
    Ewell Johnson, the husband of another daughter of Sam A. Hughes, testified that Jim Hughes said that he had sold some mineral rights on the lands for $2,000 and had redeemed the place from Mr. Grayson.
    According to the testimony of Jim Hughes, he took charge of the affairs of his father after his death, at the request of his mother and brothers and sisters, in order to settle the mortgage indebtedness of his father and a few other debts. Lester & Haltom transferred the mortgage in their favor to P. O. Grayson because they wanted their money. The witness borrowed the money from P. O. Grayson to pay this mortgage, and he paid to Lester & Haltom the sum of $1,286.41 in full of their mortgage indebtedness. He made this payment early in 1919, before the lands were sold under the power of sale contained in the mortgage. The witness paid $1,500 for the property at the mortgage foreclosure sale, in order to get title to the lands.' He insisted on Grayson having the lands sold under the power of sale contained in the mortgage, and borrowed the $1,500 from Grayson with which to pay for the lands at the sale. P. C. Grayson claimed to be an innocent purchaser for value of the lands from Jim Hughes, and the evidence on both sides on this point will be abstracted under an appropriate heading in the opinion.
    The chancellor was of the opinion that the title of the purchaser of the one-eighth interest in the oil and gas in said lands under the deed executed to them by Jim Hughes should be in all things confirmed.
    The chancellor was also of the opinion that the deed of trust executed by Jim Hughes to P. O. Grayson to secure the payment of $1,500 owed on the mortgage indebtedness of Sam A. Hughes had been paid off, and that P. C. Grayson had knowledge of the equities of the plaintiffs at the time he purchased one-half of the oil, gas, and minerals in the lands, and at 'the time he purchased 120 acres of the lands. It was decreed that said deeds he declared null and void.
    It was also decreed that the quitclaim deed given to Jim Hughes by Maria Hughes, the widow of Sam A. Hughes, deceased, and Charlie Hughes and Ada Bell, his son and daughter, should be canceled.
    P. C. Grayson and Jim Hughes have duly prosecuted an appeal to this court.

      Gaughan & Sifford, for appellant.
    1. Where suit is filed alleging that the holder of a legal title to land had notice of some secret equity, the burden is on the plaintiff to .sustain that allegation. 35 Ark. 100. If the defendant, claiming to be an innocent purchaser, proves thát he paid a valuable consideration for the property, the burden then shifts to the plaintiff to show that he had notice of the secret equity. 129 Ark. 305; 108 Ark. 490; 145 Ark. 121; 134 Ark. 241. There is no showing of fraud or collusion on the part of Grayson with Jim Hughes to defraud the heirs, nor is there any finding by the court to that effect. Grayson’s position is sustained, we think, by act 444, approved March 27, 1919, Acts 1919, p. 327, § 1. Surely plaintiffs have no greater rights in this instance, where the deed was made straight to Jim Hughes, grantee, than they would have had if it had been made to Jim Hughes, trustee, or as trustee.

    2. The interest of Charlie Hughes and Ada Bell, at least, should be charged with their part of the value of improvements made 'by Jim Hughes. A tenant in common making necessary repairs is entitled to contribution. 31 Ark. 559; 68 Ark. 534; 121 Ark. 107.

      Thos. W. Hardy, for appellees.
    1. Jim Huarhes, at the trustee’s sale, acquired no right, title or interest in the lands adverse to the appellees, his cotenants, other than to demand contribution. 55 Ark. 104; 145 Ark. 189. The latter or either of them had the right to redeem within twelve months after the trustee’s sale. C. & M. Digest, § 7407. The receipt, within twelve months, by Jim Hughes, of $2,000 from a one-eighth of the mineral rights from the land, was clearly a redemption of the land, and extinguished any right or claim he might have had against his mother, brother, sister and nieces for contribution. The defeasible title of Jim Hughes was abrogated, and the deed of trust became void. 40 Ark. 275; 65. Ark. 133; 43 Ark. 504. ' Jim Hughes could not in any way take advantage of appellees in the purchase at the trustee’s sale, or in receiving the money from the sale of mineral rights; what he did was for the benefit of the cotenants as much as for himself. 49 Ark. 242 ; 68 Ark. 542; 144 Ark. 49.
    2. Appellees charg-e in their complaint that Gray-son had knowledge of the title of Jim Hughes and the rights and equities of the appellees in the land. The 'possession of Maria Hughes was equivalent to notice. 76 Ark. 25; 152 Ark. 232; 162 Ark. 140. Grayson’s long residence in the immediate neighborhood of the Hughes family was .sufficient, in addition to the fact of possession, to put him on inquiry as to the rights and equities of the appellees. 58 Ark. 84; 137 Ark. 18. He was bound, as mortgagee, and grantee in the deeds, to take notice of the infirmities appearing in the chain of title. 150 Ark. 355; 146 Ark. 246; 144 Ark. 79.
   Hart, J.,

(after stating the facts). The chancellor found that the quitclaim deed from Maria Hughes, Charlie Hughes, and Ada Bell to Jim Hughes, executed on the 9th day of January, 1919, was for'the purpose of enabling him to pay off a mortgage which his father had given on the lands to secure an indebtedness which he owed to Lester & Haltom, in the sum of $1,286.41. After Sam A. Hughes died, in August, 1918, Lester & Haltom began to press his heirs for the payment of their mortgage indebtedness. In order to discharge this indebtedness, Jim Hughes was requested by his mother, brothers and sisters to take charge of his father’s affairs. He did so, and induced P. C. Grayson to take up the mortgage of Lester & Haltom. On the 9th day of January, 1919, the quitclaim deed from his mother and brother and sister was executed to him, and it recites that it is in consideration of the -balance due on the mortgage. All three of the grantors named in the deed testified that it was given by them to enable Jim Hughes to raise money with which to pay off the mortgage indebtedness. The husband of another sister testified that Jim Hughes told him that he had sold some mineral rights on the lands for $2,000, and had paid off the mortgage. Jim Hughes himself testified that he procured Grayson to sell the lands under the power of sale contained in the deed of trust, and became the purchaser at the sale in order to get the title in himself. This sale was after the quitclaim deed had been executed to him. Thus it will be seen that his own testimony shows that there was no intention to give him an absolute title to the lands when the quitclaim deed was executed to lfim by his mother, brother and sister.

Mrs. Bell testified that he gave her a contract to convey the lands back to her after the mortgage indebtedness had been paid. The mother and brother testified that Jim Hughes promised them that they should have back their interest in the lands after the mortgage indebtedness was satisfied.

It is true that Jim Hughes purchased the lands at the mortgage foreclosure sale, and received a deed to the lands from the trustee making the sale; but this was in violation of the terms of the trust, and conferred no greater title than he already possessed by virtue of the quitclaim deed. Under the evidence just recited, the chancellor was right in holding that Jim Hughes’ mother, brother and sister still retained their beneficial interest in the lands, and that he merely became a trustee for them under their agreement at the time the quitclaim deed was executed.

Jim Hughes became the purchaser at the mortgage foreclosure sale on May 17,1919, for $1,500. He gave P. C. Grayson a mortgage on the lands to secure this sum. Before the period of redemption had expired he had sold some oil and gas rights in the lands for $2,000 and paid back the $1,500 which he had borrowed from Grayson. Thus it will be seen that, having carried out the terms of the trust by paying the mortgage indebtedness, Jim Hughes held the legal title to the interest of Maria Hughes, Charlie Hughes and Ada Bell in trust for them. Therefore he had no right to convey their interest in the lands to P. C. Grayson, and the latter should not acquire any greater rights under the deeds given to him by Jim Hughes, unless he is an innocent purchaser for value without notice of their equities.

This brings us to a consideration of that question. It is strongly urged by counsel for Grayson that he is an innocent purchaser for value in all of said lands, both as to the oil and gas rights in all the lands, and 120 acres of the lands in question purchased by him from Jim Hughes.

Both Mrs. Maria, Hughes and Jim Hughes lived on the lands' in question at the time of the execution of the quitclaim deed, and Maria Hughes has continued to live there since that time.

To sustain the decree, counsel for appellees invoke the rule that one who purchases land in another’s possession takes with notice of the latter’s rights and equities, as held in Sproull v. Miles, 82 Ark. 455; Crawley v. Neal, 152 Ark. 323, and other decisions of this court.

It will be noted that Mrs. Hughes, one of the grantors in the quitclaim deed, and Jim Hughes, ' the grantee therein, both lived on the lands at the time of the execution of the said deed. We do not deem it necessary to decide whether, under these circumstances, her continued possession of the lands would be notice of her equities to Grayson, who purchased from her son, Jim Hughes. We deem it sufficient to say on this point that her continued possession, under the circumstances, was a fact to be considered in determining whether or not Grayson was an innocent purchaser for value of the lands.

Grayson admitted that he lived within two or three miles of the lands. He knew Sam A. Hughes in his lifetime, and he knew that Hughes had executed a mortgage on the lands to secure an indebtedness of $1,286.41 which he owed Lester & Haltom. He admits that he paid off the Lester & Haltom mortgage on February 1, 1919, and it appears from other testimony that the mortgage was transferred to him. Grayson also admitted that Jim Hughes asked him to pay off the Sam Hughes mortgage until he could see the heirs and get them to take the matter up. He testified further that he took up the Lester & Haltom mortgage, and that they (referring to the heirs of Sam Hughes, deceased) failed to raise the money with which to satisfy the mortgage.

The fact that Jim Hughes asked him to pay the mortgage off until he could see the heirs tends to show that he recognized their interest in the lands as still existing. A short time after this Jim Hughes asked Grayson to foreclose the mortgage, so that he could buy the lands in at the sale and thereby get title to them. Grayson lived only two or three miles from the lands, and it is inferable that he knew that Mrs. Hughes continued to reside on the lands after the execution of the quitclaim deed. She and Jim Hughes lived in separate houses, and this tended to show that she was living there in her own right.

To overcome Grayson’s plea of innocent purchaser, it was only necessary for appellees to show by a preponderance of the evidence that he had actual knowledge of their equities, or that he had notice of such facts and circumstances as would lead to knowledge by inquiries made by a man of ordinary intelligence. Krow & Neumann v. Bernard, 152 Ark. 99.

It is next insisted that, in any event, the interest of Charlie Hughes and Ada Bell should be charged with their part of the value of the improvements made on the place by Jim Hughes, which amounted to $1,800.

In the first place, it may be said that Jim Hughes makes no claim, in his answer, for the value of the improvements; and the testimony on this point was brought out in an incidental way. Jim Hughes was asked if he had not told Charlie Hughes and Ada Bell that they were to have back their interests in the lands, and answered, “Whenever I have made enough to pay off the debts of the estate. ’ ’ He was then asked if he did not get enough to pay the money back he had borrowed, and was further asked what expenses he was out. He answered that he built four houses and cleared forty or fifty acres. Further along in his testimony he stated, in a general way, that the cost of these improvements amounted to $1,800. He did not enter into any particular statement as to his reasons for building the houses and the cost of each one. He does hot state what value they would add to .the lands. In this connection it may be stated that he admitted that he was to let his brother and sister have their interests in the lands back when he paid off the debts. According to his own admission, he did not have the right to make these improvements under his agreement with them. His only right to the possession of the lands was to mortgage or otherwise incumber them for the purpose of paying off the mortgage indebtedness of his father. In this connection it may also be stated that he received $500 in excess of the amount borrowed to pay off the mortgage debt.

Therefore we hold that no issue was made as to his recovery of the value of his improvements, and no error can be predicated upon the failure or refusal of the chancellor to allow them.

It follows that the decree must be affirmed.