text:
    Washum v. Wilson Mercantile Company.
    Opinion delivered October 6, 1924.
    ■ Equity — multifariousness.—A bill in equity is multifarious which seeks to, unite in one action a suit to foreclose a mortgage against two defendants, and a cause of action at law against a third person, in the absence of a connection in interest among the defendants, creating á joint liability.
    Appeal from Randolph Chancery Court; Lyman F. .Reeder, Chancellor;
    affirmed.

      L. L. Gibson and W. P. Smith, for appellant.

      G. G. Pent and Pope S Bowers, for appellee.
   Wood, J.

This action was instituted in the chancery court of Randolph County by the appellant against the appellee. The appellant alleged in substance in his complaint that J. J. and J. G-. Brooks were indebted to him on notes in the sum of $550, which notes were secured by mortgage on certain property, which is described in the complaint; that the notes were past due and unpaid, and that the conditions of the mortgage had been broken; that these notes were held for collection by the Wilson Mercantile Company (hereafter called company), as agent for the appellant; that the Brooks owed the company a large debt; that the company rendered to the Brooks a statement of their indebtedness, which statement is set forth in the complaint. The statement included the notes executed by the Brooks to the appellant; that, as an excuse for refusing to pay said indebtedness or to deliver the property to be sold under the power contained in the mortgage, the Brooks claimed that they had paid the amount of the notes to the company under a certain agreement which is set out in the complaint; that, if the notes were collected or settled for with the company, as claimed by the Brooks, the appellant is entitled to judgment against the company for the amount of the notes with interest; that, not knowing the merits of the claim of the Brooks, the appellant makes the company a party to the action in order to prevent a multiplicity of suits.

The appellees demurred to this complaint on the ground generally that it did not state a cause of action, also on the ground specifically that there was a misjoinder of parties. The court sustained the demurrer on the ground that there was a misjoinder of parties, and offered to allow the appellant to elect which of the parties defendant he would pursue. The appellant refused to make an election, and refused to plead further, standing upon his complaint. Whereupon the court rendered judgment dismissing the action as to the company, from which judgment the appellant duly prosecutes this appeal.

The appellant seeks to join a cause of action in equity against the Brooks for a decree on notes and the foreclosure of a mortgage to secure the same with an alleged cause of action against the company for money had and received by it as appellant’s agent which it failed to pay over to him. This cannot be done, in the absence of an allegation in the complaint showing a connection between the Brocks and the company that would make them jointly liable to the appellant. Such is not the case here at all. If the Brocks paid the company as appellant’s agent, then appellant has no cause of action against them in equity, to foreclose his mortgage. • His sole and. .only remedy in such case would be .a cause of action--at law against the company for money had and received as appellant’s agent. There is no connection whatever in interest between the Brooks and the company. The •causes of action alleged in the complaint against the company and the Brooks are entirely separate and distinct. The one involves purely, an action at law and the other in equity. There are no allegations of fact to justify joining these actions. The. action against the company is purely one at law, in which the company would be entitled to a trial by jury, whereas the action against the Brooks is one in equity, in which they would not be •entitled to a jury.

The law applicable to the facts alleged1 in the complaint is accurately stated in 21 C. J. 422, -as follows: “A bill is multifarious which contains the demand of several matters of distinct and independent • natures against several defendants, who may be respectively liable, but not as connected with each other. There must be some-connection in interest among defendants against plaintiff.” See also Thornton N. Motley Co. v. Detroit Steel, etc., Co. 130 Fed. 396; Booneville National Bank v. Blakey, 166 Ind. 427, 76 N. E. 529.

The decree of-the court is correct, and it is there.fore affirmed.

'Hart and Smith, JJ., dissent.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Brooks.
    Opinion delivered October 6, 1924.
    Trial — improper argument op counsel. — In an action for the negligent killing of a dog by defendant’s freight train, where there was neither allegation nor proof that the running of a fast freight train through a town at twenty miles an hour was excessive -speed, it was error for plaintiff’s attorney to contend in argument that the trainmen were negligent in running the train that fast. /

      ■ Appeal from. -Hot Spring Circuit Court; Thomas E.Toler, Judge;
    reversed.

      E. B. Kinsworthy and B. 8. Kinsworthy, for appellant. ■ 1
    •' Albert W. Jernigan and D. E. Waddell, for appellee.
   Wood, J.

On the 22d of April, 1923, one of appellant ’s trains ran over appellee’s pointer dog, in the town" of Malvern, and killed the same. Appellee' instituted this action against the appellant, alleging that the dog was negligently killed by the appellant, and that she was damaged in the sum of $100. The answer denied any' negligence on the part of appellant, and alleged that the killing of the dog was an unavoidable accident. It also denied that the dog was of any value.

A witness for the appellee testified that he saw the' dog killed; “This dog was trotting along down by the switch and, when the train got right up close to it, it ran across the track right in front of the engine, and the engine hit it. The train was right close up to the dog' when it ran on the track. It was running right on down the track there, ahead of the locomotive. It was down grade where the accident happened. The train was coming about as fast as usual. It was coming at a pretty good clip. These long trains do not stop except when they are going to take water. It was a through freight train, and running about twenty miles an hour.”

There was some testimony on behalf of the appellee to the effect that the market value of the dog was from forty to seventy-five dollars. The testimony for the appellant was to the effect that the dog was worthless.

The appellant asked the court to instruct the jury to return a verdict in its favor, which request the court refused, and to which ruling the appellant duly excepted.

During the argument of the attorney for the appellee, he made this statement: “This was a through freight train, running down grade and around a slight curve. It was running twenty miles an hour, and it was negligence for them to be running that fast. If they had been acting as prudent men, they would have brought that train around there so they could have stopped if anything got on the track.” The appellant excepted to this argument, and asked the court to exclude it on the ground that there was no proof that the train was running at an excessive speed. The court overruled the motion, and appellant duly excepted. The jury returned a verdict in favor of the appellee in the sum of $50. Judgment was rendered in her favor for that sum, from which is this appeal.

The complaint does not allege that the appellant was negligent because it was running its train at an excessive rate of speed, and there is no testimony to the effect that the running of a fast freight train through the town of Malvern at twenty miles an hour was excessive speed, and therefore negligent. There was absolutely no testimony to warrant the inference that appellant was negligent because it ran its fast freight train on a down grade and through the town of Malvern at a speed of twenty miles an hour; there was no testimony to warrant the inference that the appellant’s employees in charge of the train were negligent if they were running the train at a speed that the train could not be stopped if anything got on the track. Nor was there any testimony to warrant the inference that the running of the train at the rate of twenty miles an hour was the proximate cause of the killing of the dog. The argument therefore assumed the existence of facts which were not in evidence, and was improper and highly prejudicial to the rights of the appellant. St. L. I. M. & So. Ry. Co. v. Earle, 103 Ark. 356, and cases there cited.

For the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: "Wood, J.

text:
    Hachmeister v. Power Manufacturing Company.
    Opinion delivered October 6, 1924.
    1. Mortgages — after- acquired property. — A mortgage which undertook to convey “machinery now or hereafter put upon said premises for the conduct hereof, whether attached or detached,’’ necessarily referred to machinery which the mortgagors had or might thereafter have title, and therefore had the right to include in the mortgage.
    2. Sales — reservation op title. — When a chattel is sold with a reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed, and a purchaser from the vendee acquires no title though he buys in good faith for a valuable consideration. -
    3. Sales — reservation op title. — Where the title to machinery was reserved in the seller until the purchase price was paid, the vendee could not divest the vendor’s title before paying for the machinery by affixing it to real estate which he had previously mortgaged to another.
    4. Sales — conditional sale.- — waiver.-—Where a seller, at the time it sold machinery with reservation of title, knew that it was to be used to repair machinery permanently attached to land which was subject to a mortgage, and that it could not be detached without destroying the use of such machinery, the seller will be held to have consented to such use, and the mortgagee’s lien thereon will he held to be superior to the seller’s reservation.
    Appeal from Cleveland Circuit Court; Turner Butter, Judg-e;
    affirmed.

      Trimble & Trimble, for appellant.

      G. W. Norton, for appellee.
   "Wood, J.

B. F. Thompson, Sarah T. Walton and M. R. Crandall owned a tract of rice land in Arkansas County. Prior to March 1, 1922, they executed a deed of trust to Herman Hachmeister, trustee for Charles For-man, named as beneficiary in the deed of trust. This deed of trust was to secure the sum of $148,000. On March 1, 1922, Thompson, Sarah Walton and Crandall executed to Hachmeister, trustee for Charles Forman, beneficiary, two additional deeds of trust on the same lands, securing’ fourteen and nineteen thousand dollars, respectively. These additional deeds of trust were duly recorded on April 19, 1922. One of the deeds of trust, after describing the real estate, contains the following language: “tog-ether with the tenements, hereditaments, etc.,” and “machinery now or hereafter put upon said premises for the conduct hereof, whether attached or detached.”

After the additional deeds of trust were executed and recorded, Thompson, Walton and Crandall formed a corporation designated as Walton-Arkansas Rice Company (hereafter called rice company), and deeded the lands to that company, subject to the deeds of trust above mentioned. On May 22, 1922, and at subsequent dates, the Power Manufacturing Company (hereafter called Power company) sold to the rice company new stationary engines, and two crank shafts, a governor, and a spider clutch' for engines already on ’ the land. All this machinery was necessary to the irrigation of the rice land. The contract of sale between the Power company and the rice company contained this provision: “The titlé to the machinery or material furnished under this agreement is to be and remain in the Power Manufacturing Company, and does not pass to the purchaser until full purchase price hereunder (including any modifications or extensions of payments, whether evidenced by notes or otherwise) shall have been fully paid in cash, and the purchaser is to do all acts necessary to perfect and maintain such retention of title in the company.” The contract contained the further provisions that, in case of failure to pay the purchase money or any note given-therefor, the Power company might collect same by action or repossess itself of the property. And further: “It is understood that the machinery hereunder shall retain its personal character and shall not become a fixture by being placed in any building or in any manner whatsoever annexed to any land.P And further: “If said machinery is placed upon mortgaged or incumbered premises, it shall be without prejudice to the company’s retention of title thereto as herein provided. It is understood and agreed that, under the foregoing conditions and stipulations, the aforesaid engine is to be located and placed upon tbe following described lands,” etc.

Neither tbe mortgage notes nor tbe notes given- for tbe purchase of tbe Machinery were paid by tbe incorporators of tbe rice company individually, or tbe company itself. Tbe trustee and tbe beneficiary in tbe deeds of trust instituted this action to foreclose tbe second and third deeds of trust, and-asked that the first deeds of trust be adjudged a lien against the land and the improvements. They alleged that the engines and parts were fixtures and were covered by the deeds of trust, and they prayed that the first deed of trust be adjudged a first lien against the land and1 improvements.

The Power company, in its answer, denied that the deeds of trust created a lien on the engine and parts, and prayed that its right and title retained in the purchase money notes be declared superior to the rights and liens of tbe beneficiary in tbe deeds of trust. Tbe parties agreed that tbe engines and parts were affixed1 to tbe soil in a manner approximately as follows: ‘ That is, a pit is excavated about 8' x 20' in size and 6 or 7 feet deep (that tbe bardpan in tbe soil is at a depth of three or four feet), which excavation is filled with concrete to ground level, and imbedded in this block are iron bolts, which extend above tbe surface of the block for about .two feet. Around these bolts a second concrete block is built, and tbe engine is bolted thereto and held in place on the same by iron washers and nuts or taps, the bolts coming up through tbe concrete and through boles prepared in the base of tbe engines. Tbe second concrete block is approximately tbe same in size as tbe base of tbe engine. After tbe engine is bolted down, fresh concrete grouting is poured about tbe base of tbe engine, and in some case's may come up to tbe top edge of tbe base, but does not cover it, nor does it cover the beads of tbe bolts and taps. ’ ’

It was further agreed ‘ ‘ that tbe mechanics and other employees of tbe Power Manufacturing Company -would testify, if called, that engines so affixed1 to tbe soil are easily and readily removable by unscrewing tbe taps, and lifting the engine- off the base, and that it is a common occurrence for engines to be so removed. That the same witnesses would testify further that such removal of an engine causes no damage, it being usual for such engine houses to be provided with doors large enough to admit an engine. That the foundation, however, would remain on the land, and would, of course, prevent the use of the soil for agricultural purposes, but the same engine base would be usable for another like engine, and that in locating engines on rice land it is customary to choose the site of the same with regard to serving the land with water.”

It was further agreed that neither the trustee nor the beneficiary in the deeds of trust had any knowledge of the purchase of the engines or parts and the placing of the same on mortgaged premises by the mortgagors. The trustee and the beneficiary in the deeds of trust knew nothing about the purchase money contracts in which there were deferred payments and notes given in which the vendors retained title until the purchase money was paid. It was further stipulated that Arkansas County is a large and leading rice-growing county, its principal crop being rice, for the growth of which steam oil engines are installed on the lands, and that there are five or six steam or oil plants on the land in controversy, part of them having been erected thereon several years prior to the erection of the plants sued on herein; that the assessor’s records show no pumping plants assessed as personalty in Arkansas County, but thé taxes are extended on the lands covering all improvements thereon as realty, and a total tax assessed against the lands and improvements'as realty.

In addition to the above, there was testimony adduced for the Power company tending to show that Primm oil engines and the repair parts, such as are in this controversy, could be removed, after being affixed to the soil, without damage or destruction to the house in which they were situated, or without damage to the real estate, and that the parts could be removed from the engines without damage to the remaining machinery. But there was testimony on behalf of the plaintiffs tending to prove to the contrary. There was testimony to the effect that it was not customary for an oil engine to be removed after it was once installed, and it was not practical to move the same from place to place; that, if such were done, it would result in damage to the realty; that, upon the removal of an engine, the foundation upon which it rested and the building housing it would be useless and that the removal of engines would cause the land to depreciate in value.

It would1 unduly extend this opinion, and we deem it unnecessary, to set out and discuss this testimony. The chancery court found from the testimony that the engine and parts were fixtures, in the absence of an agreement to the contrary; that the engines in controversy were purchased from the Power company, which retained title thereto, and were installed on the lands some time after the execution of the mortgage sued on; that the-mortgagor made Ms loan in the absence of these engines; they were not considered as part of the security; that very slight damage would result by reason of their removal from the premises; that the crank shaft, the governor and the spider clutch were repairs or parts installed on engines at the time the loan was made, and when these parts were attached to the engines they became a part of them. The court entered a decree based upon these findings in favor of the Power company, giving it a superior right to the engines in controversy, and in favor of the plaintiffs, giving them the superior right to the engine parts mentioned. The plaintiffs appealed from the decree in favor of the Power company as to the engines, and the Power company cross-appealed here from the decree in favor of the plaintiffs as to the engine - parts.

1. We will dispose first_ of the appeal. It was wholly beyond the power of the makers of the deeds of trust or the mortgagors to pass title to, or to place a mortgage lien upon, chattels which they did not own at the time the deeds of trust were executed and the title to which they did not have at tjie time these chattels were attached to the freehold embraced in the mortgages. By the clause in the deeds of trust which specifies “machinery now or hereafter put upon said, premises for the conduct hereof, whether attached or detached,” the parties could not have contemplated machinery to which the mortgagors had1 no title at the time the deeds of trust were executed and to which they would have no title when the machinery was attached to the land embraced in the mortgages. The above clause of the mortgage necessarily refers to machinery on the land to which the makers or mortgagors had title and therefore the right to include in the deeds of trust.

In McIntosh & Beam v. Hill, 47 Ark. 363, we held (quoting syllabus): “When a chattel is sold with a reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed, and a purchaser from the vendee acquires no title, though he buys in good faith for a valuable consideration and without notice of the condition.” See also Triplett v. Mansur-Tibbetts Co., 68 Ark. 230; Cullin-McCurdy Const. Co. v. Vulcan Iron Works, 93 Ark. 342; Starnes v. Boyd, 101 Ark. 469, 473; Clinton v. Ross, 108 Ark. 446; Garner Mfg. Co. v. Cornelius Lbr. Co., ante, p. 119.

The appellants contend that the appellee has the same rights, and no more, as the rice company would have had, had it paid for the machinery in full and had set up its title against the lien of the mortgagees. To support this contention, they cite the case of Thomas Cox & Sons Machinery Co. v. Blue Trap Rock Co., 159 Ark. 209. In that case the Trap Rock Company leased its quarry to one Pulton, and, as a part of his contract, Pulton agreed to operate the plant and make necessary repairs at. his own expense. Pulton bought certain machinery from Cox & Sons Machinery Company. The lessor company notified the vendor company of the conditions under which Pulton was operating, the plant, and indorsed the notes of Pulton, in which the vendor company retained title, and at the same time warned the vendor company that Fulton was obligated to make the repairs and mot authorized to bind the lessor company. In that case we held that, if the vendor sold to the lessee machinery and reserved title thereto, which machinery the vendor knew at the time that the lessee intended to attach to the realty of the lessor, and knew at the time that the machinery was of a character that, when attached, would become a fixture, and could not be removed without injury to the freehold, and if the lessor was ignorant of the fact that the vendor had reserved title to the machinery, then the vendor would not be entitled to recover as against the lessor, the owner of the freehold1. That case is wholly distinguished on the facts from the facts of this record, and has no application whatever. The holding in that case against the conditional vendor in favor of the.lessor, the uwner of the freehold, was predicated solely upon the fact that the vendor had been actually notified and warned by the owner of the freehold that the vendee, the lessee, had made a contract to repair the premises • and that the machinery purchased was for that purpose.

In the case at bar there is no proof that the conditional vendor of the machinery knew that the conditional vendee had entered into a contract with the owner of the freehold to buy machinery for the purpose of making repairs, and that the conditional vendor had expressly acquiesced in, and consented to, such contract. Nor was there any testimony tending to prove that the conditional vendor knew that, under the contract, the machinery purchased would be attached to the freehold in such manner as to become a fixture. We conclude therefore that the mortgagors or the makers of the deeds of trust had no power to vest title or lien in the trustees or beneficiary in the deeds of trust in the engines in controversy for which the vendees at that time had not paid, nor could the vendees, by affixing these engines to the freehold before they had paid the purchase money and acquired title thereto, vest title in the owners of the freehold and deprive the conditional vendor, the Power company, of its title and right to such machinery. Fears v. Watson, 124 Ark. 341.

2. On the cross-appeal, it appears that there were two one-hundred-horse power crank shafts with counterweights for engine No. 885 and engine No. 886; also one governor and clutch spider for engine No. 885, and a governor for engine No. 886. The total value of these articles was $2,030. The court found that these parts were attached to engines Nos. 885 and 886, which were on the lands at the time the loans were made, and that, when they were so attached, they became a part of the engines. There was testimony to warrant a finding that these engines, which were on the land at the time the loan was made, were fixtures, and that therefore the mortgagors had title thereto and that they were included in the deeds of trust. These parts, the Power company knew at the time, were to be used to repair the engines which were fixtures, and, when so attached, would become parts of those fixtures, and therefore a part of the freehold, and that the parts could not be detached from the engines without destroying the use of the engines and injury to the freehold. The Power company therefore, as to these parts, is in the attitude of having consented in advance that the parts should become fixtures and that the owners of the freehold and the beneficiaries under the mortgages or deeds of trust would have the superior right or title to these parts. Thos. Cox & Sons Mach. Co. v. Blue Trap Rock Co., supra. Besides, so far as the parts are concerned, the Power company is precisely in the same attitude as if these parts had been attached to the engines at the time the deeds of trust under which the appellants claim were executed.

The decree of the court is therefore in all things correct, and it is affirmed.


author: Hart, J.

text:
    Brooks v. Wilson.
    Opinion delivered October 6, 1924.
    i: School lands — title of state. — While the trust created by a compact between the' United States and this State that sixteenth section lands should he used for school purposes is a sacred obligation imposed -on the good faith of the State, the obligation is honorary, and, the legal title to such lands being vested in the ' State, its power over the same is plenary and exclusive.
    2. • Constitutional law — impairment of obligation of contract. —A statute passed by a State disposing of lands conveyed in the enabling act by the United States to be used by the State for school purposes does not impair the obligation of a contract, and the State has the right to subject such lands in its hands to the ordinary incidents of title.
    3. Schools — disposition of school lands. — Even if §§ 9108, 9110 and 9285 of Crawford & Moses’ Digest, providing for disposition of the fund derived from the sale of sixteenth section lands, be unconstitutional, their invalidity in nowise affects the validity of other statutory provisions for the sale of such lands.
    4. Statutes — effect of partial invalidity. — If any' special provision of an act be unconstitutional and can be stricken out without affecting the validity of the residue of the act, it will be done, and the remainder of the act allowed to stand.
    Appeal from Mississippi Chancery Court, Chickasawba District; J. M. Futrell, Chancellor;
    affirmed.

      T. J. Crowder, for appellant.
    Under the compact, approved June 23, 1336, C. & M. Digest, p. 200, the legal title to the 16th section lands vested in the State as trustee for the use of the inhabit-' ants of the township in which the section 16 was located. The act 344, Acts 1919, C. & M. Digest, §§ 9108, 9287, is violative of the compact, swpra, and void, in this: in providing for the sale of the lands under an order of the county court, upon a petition of any person desiring to purchase, without obtaining the consent of the inhabitants and without notice to them; and in providing that the proceeds derived from the sale of the land be deposited in the State Treasury to the "credit of the common school fund of the State. We are not unmindful of the case of Mayers v. Byrne, 19 Ark. 308," -but attention is called to the fact that the act under which -the sale was made required the proceeds from the sale to be “employed for school purposes in the township,” Acts 1844-45, p.' 85, whereas the present statute, C. & M. '■Digest, § 9108, requires the sheriff, after the costs are paid, to transmit the balance of the purchase .price to the Treasurer of the State “for and on account of the permanent school fund.”- See also Id., § 9287, and Id., 8808. But the above case, as well a’s the later case, Special ■ S'chool District No. 5 v. State, 139 Ark. 263, recognized the trust feature of the compact and' the sacredness of the obligation assumed by the State to preserve 'the use of the lands for the benefit of the inhabitants. of the township in which the lands lie. ' ■

      Little, Buck $ Lasley, for,appellees.
    The question as to the legal title to the lands invólved has been settled by the court’s decision in Mayers v. Byrne, 19 ' Ark. 308, against appellant’s contention, ' wherein it was held that the legal title to the land vested absolutely in the State.. The question here involved is the sale of the, land, not the use of the proceeds. If depositing the proceeds of the sale to the credit of the common school fund is to deprive the inhabitants of the township of the use' of the land within the meaning of the compact, that may be prevented in a proper proceeding instituted for that purpose, but not in' this case. '263 ü. 8. ,361; 127 IT. 'S. 182; 107 U. 8. 557.
   Hart, J.

J. Mell Brooks, a taxpayer and an inhabitant of a.certain, school district in Mississippi County, Arkansas, brought.this suit in.equity against R.,E. Lee Wilson and D. H. Blackwood, as sheriff of Mississsippi County, to enjoin the sheriff from issuing and delivering to R. E. Lee Wilson a certificate of. purchase of sixteenth section school land situated within the limits of..said school district. . ...

The statute regulating the - sale of sixteenth section lands for the use of schools was. in all respects complied with by the sheriff, whose duty it was, -.under the statute, to make the sale. 7

The sole ground upon which the sale was sought to be defeated was that the act regulating the sale of such lands violated the compact between the United States Government, and the State of . Arkansas.

The chancellor ordered the complaint dismissed for want of equity, and the case is here on appeal.

It appears from the record that the sale of the sixteenth section land involved in this suit was made in conformity with the provisions of §§ 9104-9112 of Crawford & Moses’ Digest regulating the sale of such lands.

This fact is conceded by counsel for appellant, and his sole reliance for a reversal of the decree is that thfe act of the Legislature under which the sale was made is unconstitutional, because it is violative of the compact between the United States and the State of Arkansas whereby the former granted to the latter, by act of Congress-, the sections numbered sixteen in every township, “for the use of the inhabitants of such township for the-use of schools.-” The legal title to these lands could not be vested in the inhabitants of the township, because they had no corporate existence, and none could be conferred on them by the act of Congress. It is plain from the language of the act of Congress that the legal title to the lands was intended to be vested in the State, and it did so. .vest by the. acceptance of. the conditions by the Constitutional Convention under which the State was admitted into the Union. Cooper v. Roberts, 18 How. U. S. 173; State of Alabama v. Schmidt, 232 U. S. 168, and King County, Washington, v. Seattle School District No. 1, 263 U. S. 361, 44 S. C. Rep. 127, 68 L. ed. 138.

Thus it will be seen that the Supreme Court, of the United States has expressly held that, while the trust created by a compact between the United States and the State that sixteenth section lands be used for school purposes is a sacred obligation imposed on the good faith of the State, the obligation is honorary, and the .power' of the State, where the legal title has been vested in it, is plenary and exclusive. The court further held that a statute passed by a State disposing of lands conveyed in the enabling act by the United States to be used by the State for school lands, does not impair the obligation of' a contract created by the acceptance of the enabling act; and that the State, has the right to subject such lands in its hands to the ordinary incidents of title.

This doctrine was also recognized by this court in the case of Mayers v. Byrne, 19 Ark. 308. In that case it was held1 that,.by the act of Congress supplemental to the act for the admission of Arkansas into the Union and the ordinance of the State accepting the provisions of the supplemental act, the title to the sixteenth section lands granted for the use of common schools vested absolutely in the State, and that the act of Congress imposing conditions .upon the power of sale was not binding upon the State.

It follows from the principles of law decided in these cases that the title to the land in question was in the State of Arkansas, and passed to the purchaser at the sheriff’s salé, under the provisions of the act regulating the sale of the same.

But it is contended that the act is unconstitutional because § 9108 of Crawford &' Moses’ Digest provides •that, after the payment of the costs of the sale, the balance of the purchase price shall be transmitted by the sheriff to the State Treasurer, for and on account of the permanent school fund of the State of Arkansas.

To sustain his. contention in this behalf, counsel relies upon Special School District No. 5 v. State, 139 Ark. 263. We do not think that case is authority for his contention. On the other hand, it reaffirms the rule that the title to the,sixteenth-section lands has vested in the State. The court expressly said that the act of Congress was declared by this court in Mayers v. Byrne, 19 Ark. 308, not to be binding upon the State as to the disposition of the lands. In that case the title to the lands was not involved, but the court had only under consideration the disposition of the funds derived from, the use of the sixteenth section school lands, or from the usé of the proceeds of the sale of such lands. In this connection it may be stated that the disposition of the purchase price of the sixteenth section school lands is referred to in §§ 9108, 9110 and 9285 of Crawford & Moses ’ ‘Digest.

Section* 9108 is a part of the act of March 22, 1919. Section 9110 is a part of the act of March 31,' Í885, and § 9285 is a part of act of May 8, 1899. The .constitutionality of these sections is not involved and is not passed upon at all. If they should be deemed unconstitutional, it would in no wise affect the validity of the acts of which they are a part with regard to the sale of the lands. They deal with the disposition of the fund derived from the sale of the sixteenth section lands, and the remainder of the respective acts deals with the manner of the sale of such lands. If the legal title to the lands is in the State of Arkansas, as decided by the Supreme Court of the United States and by .this court, the Legislature had full discretion to provide for the manner in which such lands might be sold, and the fact that a part of the act providing for the disposal of the funds arising from the sale of the lands should be held to be unconstitutional would in no wise affect the remainder of the act. The only ground upon which the disposition of the proceeds of the sale could be held to be unconstitutional would be that the Legislature has violated the compact bétween the United States and the State. If that compact unalterably fixed the disposition which should be made of the proceeds arising from the sale or lease of the lands, an act of the Legislature fixing a different method might be unconstitutional, and still .not render unconstitutional the remaining portion of the act providing the machinery for the sale of the lands.

The rule is that, if any special provision of an act be unconstitutional and can be stricken out without affecting the validity of the residue of the act, it will be done, and the remainder of the act allowed to stand. Cribbs v. Benedict, 64 Ark. 555; State v. New York Life Ins. Co., 119 Ark. 314; State v. Woodruff, 120 Ark. 406; and Davis v. State, 126 Ark. 260.

Therefore the decree will be affirmed.


author: Smith, J.

text:
    Buron v. Little River County.
    Opinion delivered October 6, 1924.
    1. Counties — demurrer to claim. — While ordinarily a demurrer does not lie to a claim filed against a county, since the statute does not require formal proceedings in presenting demands against counties, it was not error to sustain a demurrer to a claim against a county which sets out fully the facts upon which the claim is based, and such facts are insufficient to sustain the claim.
    2. Counties — liability for audit of books of improvement district. — The county court has no authority to employ an accountant to audit the books of an improvement district.
    Appeal from Little River Circuit Court; B. E: Isbell, Judge;
    affirmed.

      DuLaney & Steel, for appellant.
    1. The original claim filed by the appellant in the county court, and the amendment thereto filed in the circuit court, stated a cause of action, and the court erred in sustaining a demurrer thereto. The facts pleaded should have been investigated and the law applicable thereto should have been put into effect. 61 Ark. 76.
    2. It is within the province and the power of the county court to pay out of the county general funds for the' expense of auditing the books and finances of this road improvement district, under the contract made with the appellant, and under the facts shown and admitted by the demurrer. Art. 7, § 28, Constitution; C. & M. Dig., §§ 5301, 2982, 2984; act 494, Acts 1921, $ 11; 122 Ark. 114; 72 Ark. 334; 107 U. S. 356. ■

      Shaver, Shaver •& Williams,' for appellee.
    1. The court was correct in sustaining the demurrer. Having- elected to formally plead, and having- specifically pleaded all the facts, and the contract on which he relied, appellant subjected himself to the rule of pleading that his cause of action could be tested on demurrer. There is a clear distinction between the' rule announced in Wiegel v. Pulaski County, 61 Ark. 76, where no formal pleadings are filed, and that in a case where such pleadings are filed. See also 76 Ark. 265. Moreover, the contract relied on by appellant is pleaded, yet there are no allegatiohs to show that any amount had. been previously appropriated for the purpose evidenced by such contract. Act 192, approved March 9, 1917, § 9.
    2. Act 292, Acts 1919, creating Boad Improvement District No. 7 of Little Biver County, gave such district a separate, distinct and corporate existence, with full power to.manage and control its fiscal affairs, and the right to sue and be sued, but nowhere does the act confer any jurisdiction on the county court to control or in any manner interfere with the fiscal affairs of said district. The attempt by the county court to audit the books and accounts of the district was therefore without authority of law, and the county cannot be held to pay the expense thereof. Leathern & Co. v. Jackson County, 122 Ark. 124, has no application here. See 122 Ark. 119; 84 Ark. 539; 155 Ark. 402.
   Smith, J.

In the year 1922 appellant entered into a contract with Little Biver County, through its county judge, to audit the books and accounts of Boad Improvement District No. 7 of that county. Appellant performed the service called for by the contract, and filed a claim for the compensation agreed upon, and the same was allowed. A citizen of the county made himself a party to the proceeding, and prayed and perfected an appeal to the circuit court, where he appeared and filed a demurrer, which was sustained and the cause dismissed, and this appeal is from that order of the circuit court.

The claim filed by appellant was not a mere statement of his demand. On the contrary, it contained a detailed history of the circumstances of his employment. He alleged there was disaffection among the taxpayers over the management of the affairs of the road improvement district, and that the grand jury undertook an investigation of its affairs, and caused the records and files of the district to be brought before the grand jury, but the investigation thus made was not satisfactory, and the grand jury, in its final report to the circuit court, recommended that the county court employ an expert accountant to make an audit of the books and affairs of the district, and that a copy of this'report be’filed -with the county 'cóürt and another copy with the prósecritirig attorney of the' judicial district of which. Little, River County was a part.'' The statement of appellant’.s demand further - recited that the report, of the grand'’ 'jury',was transmitted tó the" county Court " and' there filed,' and, pursuant to this recommendation, the cbuhty ' court entered into the contract here sued on. This contract was copied in full and made a part of the demand, and there- was also attached a detailed stateihent of' ’the set-vices which appellant _ had rendered1 under the contract and the expense, which he h.ad incurred which’the contract required’’-the county to. reimburse. ’ .

V 'For the reversal of the judgment in the circuit court it Is first insisted that' a demurrer will not lie to a claim filed ágainst a county,'and the cases of Wiegel v. Pulaski County, 61 Ark. 76, and Hempstead County v. Phillips, 79 Ark. 263, are cited in support this contention.

In those cases it was said’that a demurrer .would not lie to a. claim filed against the- county/'. But those deck, sions must be read ih the.light .of the facts to which the decisions apply.- .In both of-those cases there was a mere statement, of the’claim; against the county, verified,.as the statute , required. • There .was. up attempt in either case -'tp state the facts on which ,the .county’s-liability depended.-; but. the-cause-of.-action was-held hot. ,tp ..be. demurrable.'on that .account, for the. reás-on .that the.stah ute did not require formal pleadings, in, presenting demands against counties, and it. Was theref ore not necessary that a formal cause of action be stated. ,/7'l1

’. . .Here, however, .the’claimant.lias .set out in.full, the-facts..upon, which he .predicates-' .liability .against , the county. ..If the .cáse’had been-frilly, heard in .the,'court, below,-'.he . wouldk no' dbub.t, have proved The/hiatféfs alleged.,./There is n.o-contention - that,.-he.--would-/have offered'to prove any fact-not alleged.- Thp-idenrifrer concedes .the truth of. these-allegations, but rquesiiqn-s, their sufficiency to sustain liability against the'county.. ’.

This is-the real question in the case, and one-which both parties, have fully argued and desire us to .decide, and we proceed therefore to consider it.

' ; We think the facts recited fail to show a valid claim which the county should be called upon to pay, and the demurrer was therefore properly sustained.

The -case of Leathem & Co. v. Jackson County, 122 Ark. 114, is cited as authorizing’ the county court tó employ an accountant tó audit the books of an improvement district. But we do not think that case upholds that authority. There the accountant was employed to audit the books and accounts of certain county 'officers. "•These were officers who were required to report to and to settle with the county court. The matters audited related to the fiscal affairs of the county, and the purpose of the audit was to enable the county court tó more •intelligently exercise a jurisdiction conferred upon it by law. No such duty or jurisdiction is conferred upon the county court in regard to the affairs of the improvement •district. The officers of the district were not required tó report to or make settlement with the county court, and that court had no function to perform in this behalf, -and the -court had therefore no authority to incur this expense as an obligation to be paid by the county.

The right of the grand jury to inspect the records of the district is not questioned, and as much time could have been consumed by that body as was required for that purpose; but the recommendation of the grand jury added nothing to the jurisdiction of the county court.

It is insisted that the authority to have this audit made is necessarily implied to make effective the provisions of act 494 of the Acts of 1921, page 490. This act provides for the registration of motor vehicles, and fixes the fees for registering and licensing such vehicles, and § 11 thereof apportions the revenue so derived. This section provides that seventy per cent, of such money shall be paid by the -collector thereof into the treasury of the county in which the collections were made, to the credit of a fund to be known as the county highway improvement fund, and that the same shall be expended by the county court upon the public highways of said county, and that the county court shall apportion these funds among the various road districts and the road improvement districts for the purpose of constructing- and maintaining roads, the apportionment to be made by the county -court after taking into account the relative importance of said roads. The argument is made that, having thus apportioned funds to a particular improvement district, the county court has the inherent right to audit the affairs of such district to ascertain the uses of the money so apportioned.

It appears, however, that such was not the real purpose of the audit, as the information desired related to the disbursement of the proceeds derived from the sale of bonds of the district. Moreover, act 494 does not contemplate that the funds derived pursuant to these provisions shall be turned over to the improvement districts. They are paid into the county treasury, and are disbursed by the' county treasurer. The county court itself has control of these funds and their apportionment, and we think there is nothing in this act 494 which confers authority on the county court to have a general audit of the improvement district’s affairs made at the expense of the county.

The claim presented seeks to impose a liability on the county not authorized by law, and the demurrer was therefore properly sustained, and the judgment of the circuit court is affirmed.


text:
    Conway v. Commissioners of Board of Improvement District No. 20.
    Opinion delivered October 6, 1924.
    Highways — plans for improvement — definiteness.—Plans for the improvement of certain streets which provide for a brick, asphalt or other suitable wearing surface laid on a concrete base, and states definitely the estimated cost of the proposed improvement, is not so indefinite as to avoid the assessment based thereon.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      H. M. Barney, for appellant.
    The plans for the improvement filed with the city council do not meet the requirements of the statute, C. & M. Digest, § 5656. They are too indefinite and uncertain to enable property owners to tell what thickness the concrete base was to be, or of what material, whether of brick, asphalt, or, indeed, what other material was to be laid on such concrete base. Moreover, as to the repair of defective places, whether that is to be done with brick, asphalt or gravel. It was therefore impossible for the commissioners to make a valid assessment of benefits. 154 Ark. 38; 134 Ark. 318. Since no definite plans had been made, the assessment is invalid and of no effect.

      Henry Moore, Jr., for appellee.
    I. This district was legally organized under the general law, C. & M. Digest, §§ 5649 to 5668 inclusive. Because of the failure of the gravel base, laid under the original contract, to support the concrete asphalt wearing surface, and at the instance of the commissioners of the district, act No. 643, Acts 1923, was enacted, to the end that a proper and suitable pavement might be put down. Attention is called to §§ 1, 2, 3, 4, and 5 thereof, and to the fact that this act changes somewhat the procedure from that prescribed by the general law. It will be noted that, under the general law, the majority petition is signed before the assessment is made, and therefore before the property owners can tell what amounts they will be required to pay; but under the special act, each property owner, in signing the majority .petition, knew from the plans filed the character of the paving that would be put down by the commissioners, and also knew the amount of the assessment of benefits against his property for such paving. There is no merit in appellant’s contention that the assessment is void' for uncertainty in the plans, etc. They were filed pursuant to § 2 of the special act, and the assessors thereupon proceeded to make the assessment of benefits. It has frequently been held that the commissioners, in making plans and carrying them out, are vested with a wide authority and discretion, and need only put in an improvement of the general kind and character petitioned for. 97 Ark. 338; 105 Ark. 69. Appellant contends that this couit has held, in 134 Ark. 315, that a defimte plan should be made. Crawford & Moses’ Digest, § 5656, uses only the word “plans’” and does not specify how definite same shall be. It is certain that the word “defimte,” as used by the court in above case, means a plan of the general kind and character called for by the original petition, not detailed plans and specifications •such as are necessary in letting a contract. See also 155 Ark. 327; 150 Ark. 444.
    2. This is an attack upon the assessment of benefits, and the suit not having been brought within 30 days after publication of the ordinance required by statute, C. & M. Digest, § 5668, the action is barred. 150 Ark. 447; 158 Ark. 191.
   Smith, J.

Street Improvement District No. 20 of the City of Texarkana was organized in 1913. Bonds were sold, the contract was let, and more than one-third of the district paved with the type of pavement called for by the original plans. The pavement originally contracted for was a gravel base with a wearing surface of two-inch concrete asphalt. The war and the litigation detailed in the case of Burke Construction Co. v. Bd. of Improvement of Paving District No. 20, 161 Ark. 433, affecting this district, delayed the completion of the work, and it developed that the pavement was not suitable for the ■city of 'Texarkana,'as the water percolated through and under the gravel base, the gravel broke and raveled away, causing the wearing surface to fail because of the lack of support from the gravel base. ■ Relief was needed, and .this was sought to be afforded by the introduction' and "passage of an act in the General Assembly of 1923, which became Act 643. Special Acts 1923, p.. 1574.

Section 1 of this' act authorizes changes to be made in the plans theretofore adopted.

■Section 2 requires that any change or alteration of the plans be filed with the city council of Texarkana, and that, when so filed, the assessors of the district must readjust and revise the assessment of benefits in aceordanee with the changed plans.

Section 3 authorizes the district to borrow money to the extent of the cost of the improvements.

Section 4 requires that a petition of the majority in value of the property owners must consent to ’ the revised and readjusted assessments of benefits before the same shall become effective, if the revised assessments exceed twenty pér cent, of the assessed value of the real property in the district for the year 1913.

Section 5 requires publication of notice of the meeting of the council to ascertain if a majority in value of the property owners have petitioned for the improvement, and provides a limitation of thirty dáys on the time for instituting suit to question the finding of the council.'

Appellant is the owner of property in the district, ’and filed a bill in the chancery court questioning the validity of the assessments made against his own and the other property in the district. The ground of his attack is that the proposed1 amended plans were void' because they were not sufficiently definite and certain to form the basis of an assessment and to advise the property owners of the improvement to be made.

■ The commissioners made the report to the council contemplated by act 643 of the Acts of 1923. This report ".named the streets to be paved, and’gave the width of the 1 proposed pavement, and, after doing so, concluded with this statement: ‘ ‘ The pavement to be put down on the streets above described will be brick, asphalt, or other suitable wearing surface, laid on a concrete base. On streets in the district not described above, and already improved, the defective places are to be relaid and streets put in condition, using materials suitable to the type of pavement already in place.”

The report gave the estimated cost of the proposed improvement at $302,838.25.

After the coming in of this report the assessors made the revised assessment, and the property owners thereafter petitioned that the improvement be made.

A demurrer to appellant’s complaint was filed and sustained, and this appeal raises the question whether the assessment of benefits is void on account of the indefiniteness of the plans.

Appellant insists that the entire assessment was void, and in support of his contention relies chiefly on the cases of Nelson v. Nelson, 154 Ark. 36, and Mo. Pac. Rd. Co. v. Waterworks Imp. Dist., 134 Ark. 315.

The last mentioned case was one in which no plans for the proposed improvement — a waterworks system-had been prepared, and we held that , the city council was without authority to appoint a board of assessors until the board of improvement had made definite plans and had ascertained the cost of the improvement according to the plans.

In the other case, that of Nelson v. Nelson, the ordinance creating the improvement district was held void because the petition therefor was so vague that it was impossible for the property owners in the district to determine from the petition the character of the improvement to be made. It was there said: “The property owner could not determine whether the improvement contemplated was both draining and grading, or whether it was simply draining without grading, or grading without draining; or whether it was simply by curbing without guttering, or guttering without curbing; or whether it was simply by paving; or, in other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them, combined; or by some other method, not mentioned, if the commissioners deemed such method to the best interest of the district.”

In the ease of Kempner v. Sanders, 155 Ark. 321, the case of Nelson v. Nelson, supra, was cited as authority for holding void the assessments there attacked. We declined to so hold, and, in reviewing and distinguishing the Nelson case, it was pointed out that, in the Nelson case, “the ordinance establishing the district left it entirely optional with the commissioners as to whether they would do draining or grading, or curbing or guttering, or simply paving. ‘In other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them combined, or, by some other method not mentioned, if the commissioners deemed such method to be the best interest of the district. ’ ’

We think there was no such uncertainty or indefiniteness here as existed in the cases cited.

The defective places which had1 developed in the pavement were to be repaired with a suitable material, the character of which was not specified; but this was mere repair work. The new work was to be put down on the designated streets and was to be brick, asphalt, or other suitable wearing surface, to be laid on a concrete base. These plans and the petition of the property owners based thereon did leave the character of the surface to the determination of the commissioners; but this discretion did not materially affect the cost of the improvement, which was definitely stated.

We think these plans were not rendered void for uncertainty because this discretion was conferred on the commissioners, and the case is controlled by the doctrine of the case of McDonnell v. Imp. Dist. No. 145, Little Rock, 97 Ark. 334. There the petition specified that the improvement should be made “by grading, draining, construction of curbing and paving, and that the paving be done by construction of macadam, bitulithie, wooden blocks, brick, or asphaltum pavements, as the commissioners of •.said district to be hereinafter, appointed may-select as ■ being most substantial and economical for the benefit of the district, and that the curbing be built of sucn material as the commissioners hereinafter appointed may deter■mine.”

In holding that specification sufficient we said: “The statute, it will be observed, does not require a specification in the petitions of the kind of material to be used. All that is required is that the nature of the improvement be specified in general terms, so that the purpose of the organization may be set forth in the proceedings. -Much must, of course, be left to the discretion of the commissioners in forming the plans for the improvement and making the estimates of the cost thereof. Fitzgerald v. Walker, 55 Ark. 148; Boles v. Kelly, 90 Ark. 37.

“The property owners may undoubtedly limit the powers of the commissioners in that respect by specifying with particularity the kind of material to be used and the cost of the improvement. Watkins v. Griffith, 59 Ark. 359. But when the petition of the property owners describes the character of the improvement only in general terms, or expressly leaves to the commissioners the decision as to what kind of material shall be used, the validity of the organization is not impaired thereby, and the commissioners may exercise the discretion thus left to them. Decisions in other States Under different statutes are of no force here as precedents. The question must be determined in the light of the statutes on the subject.”

The commissioners here were vested with a wide discretion, but it was not so wide as to constitute the roving commission to do as they please, which we have said, in cases cited and in other cases, could not be conferred. Bd. of Imp. v. Brun, 105 Ark. 65; Baird v. Street Paving Imp. Dist. No. 1, 148 Ark. 246.

We conclude therefore that the proposed plans were not so indefinite as to invalidate the assessment of benefits, and the demurrer was properly sustained.' Decree affirmed. '•


author: Humphreys, J.

text:
    Lee County National Bank v. Hughes.
    Opinion delivered October 6, 1924.
    1. ■ Trial — abstract instruction. — A cause will ■ not be reversed because the trial court refused to submit an issue not raised by the allegations and proof.
    2. Limitation op actions — recovery op bailment.^-Iii bailments an action for the property does not accrue nor the statute of limitations begin to run until demand is made therefor and delivery is refused.
    Appeal from. Lee Circuit Court; E. D, Robertson, Judge;
    affirmed.

      Daggett & Daggett, for appellant.
    The bank was a.gratuitous bailee, and was liable only for gross negligence. 140 Ark. 484; 103 Ark. 12. The court, in instruction No. 2 given on behalf of plaintiff, erroneously placed the burden of proof on defendant to explain the loss of the- bonds, and made it the absolute -legal duty of defendant to return the bonds or their value, regardless. of the contract. 101 Ark. 75; .134 Ark. 76; 157 Ark. 167: ... - . . ■ •

      Matm-S Mann, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in. the circuit, court of Lee County to recover the value of $2,000 in government bonds alleged to have been purchased by appellant bank for.appellee’s testate, and not delivered to him or Ms executor'when demand'was made for same. The complaint, in-substance, alleged that appellee was the executor of the estate of G-. B. Daniels, deceased, who, prior to his death, ’deposited with appellant $15,000 to be invested in Liberty bond's; that thereafter appellant returned, to' appellee $13,000 in bonds, but refused to .deliver the. remaining $2,000, after demand had been made for same; that said bonds were of the value of $2,000, with accrued interest; and prayed judgment in said sum.

Appellant filed an answer denying the material aller gations of the complaint, and, by way of further answer, alleged that on the 16th day of June, 1917, Gr. B. Daniels deposited with, it $10,000 to purchase for his account Liberty bonds of the first issue in said sum, which it purchased and delivered to him;, that on the •9th day of November, 1917, G-. B. Daniels deposited with appellant $5,000 to purchase for his account registered Liberty bonds, and that on the 17th day of April, 1918, it purchased and delivered said bonds to G-. B. Daniels. Appellant also interposed the three-year statute of limitations as a bar to a recovery.

The cause was submitted to a jury upon the pleadings, the testimony introduced by the respective parties, and instructions of the court, which resulted in a verdict and judgment for $2,000 and1 interest against appellant, from which is this appeal.

The undisputed testimony shows that appellant ■purchased two lots of government bonds for Gr. . B. Daniels, who placed them in a safety deposit box in the bank, one lot for $5,000 and one lot for $10,000; that the bank permitted this with the understanding that it would not be responsible to its customers in case the bonds were lost; that, on account of robberies of other banks, appellant notified its customers, including Daniels, to transfer the bonds to a compartment in the burglarproof safe in the front part of the bank building; that this was done, and the bonds of all the customers were put in separate envelopes and placed in said compartment ; that the $5,000 lot of bonds was returned.

The testimony was in conflict as to whether $2,000 of the $10,000 lot of bonds belonging to Daniels was contained in the envelope deposited in the burglar-proof safe, or, if so, whether they were thereafter obtained by Daniels or his executor before demand was made for the $10,000 lot of bonds. This conflict in the testimony was determined by the jury, under proper instructions, adversely to appellant.

Appellant contends for a reversal of the judgment, however, because the court sent the cause to the jury upon the sole issue of whether the $2,000 in bonds had been left in the custody of the bank, and, if so, whether they had been returned to Daniels or his executor. This contention is based upon the theory that appellant bank received the bonds under an agreement not to be responsible for the loss, and, in any event, were deposited with appellant as a gratuitous bailee. It is argued that the case was submitted on a theory which ignored appellant’s two defenses, viz: first, the agreement exempting the bank from liability, and secondly, in the absence of such an agreement, that the bank occupied the position of a gratuitous' bailee and was liable only in the event of gross negligence in the care of the bonds. We do not think the two defenses referred to were embraced in the pleadings or testimony. There was no allegation or proof that the bonds were lost by robbery, fire, or other cause against which the bank is alleged to have contracted, or on account of which it was not liable as a gratuitous bailee. The allegations and proof -presented the sole issue of whether the bonds were left in the custody of the bank and afterwards returned by the bank to Daniels or his executor. The theory upon which the case was submitted was correct, because responsive to the allegations and proof.

Appellant also contends for a reversal of the judgment on the ground that the action was barred by the three-year statute of limitations. The contention is based on the claim- that the action accrued when it was first discovered that the bonds were not in the safe. In bailments an action for the property does not accrue until demand is made therefor and delivery is refused. This issue was submitted to the jury on a correct instruction if the three-year statute applied, which it is unnecessary to decide. '

No error appearing,, the judgment is affirmed.


text:
    Dover v. State.
    Opinion delivered October 6, 1924.
    1. -Criminal law — waiver of objection. — Error in not sustaining a demurrer to an indictment will be waived on appeal where no ruling of the trial court was asked or obtained.
    2. Criminal law — arrest of judgment. — Under the statute pro-7 viding that a judgment in a criminal case can be arrested only-on the ground that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court, every material fact constituting the offense must be alleged in the indictment, but in determining this question the language . .used will be' construed in favor of the validity of the indictment • ■ unless such -interpretation is contrary to the plain and usual meaning of the words in this indictment.
    3. Banks and banking — sufficiency of indictment for receiving - v deposits while insolvent. — An indictment of one as director of . a. certain bank which alleges that at a certain time and place, after.having knowledge that this bank was insolvent, he did assent . 'to ;the. reception of a deposit in said bank, is not defective in failing to allege specifically that said bank was in fact a bank or engaged in the banking business.
    4. Banks and banking — receiving deposits while insolvent— liability. — Under Crawford & Moses’ Dig., § 697, providing that it shall be a crime for any director of any bank, after having knowledge that it is insolvent, to assent to the reception 'of any deposits, a director of a bank is guilty where, knowing the bank to be insolvent,, he assents to the reception of deposits, though he was not personally present in the bank when any particular deposit was made, and did not in any wise advise or consent to the cashier receiving such deposit.
    '5.- Banks and banking — power of legislature to define insol- • - VENCY. — As the-business of banking is affected -by a public interest , and .subject to regulation, the- Legislature is authorized to define what will constitute insolvency within the meaning of the act '• ’ - "’regulating banks.
    Appeal f :om Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Norwood & Alley, for appellant.

      J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Mark Dover prosecutes this appeal to reverse a judgment of conviction against him for the crime of assenting to the reception of a deposit by a bank -of- which he was director, after having had knowledge of the fact- that it was insolvent. '

The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. It dogs not appear from the record that a ruling of the court on the demurrer was asked or obtained, and, under the settled rules of practice of this court, the alleged error cannot be considered on appeal. Kiernan v. Blackwell, 27 Ark. 235; Pratt v. Frazier, 95 Ark. 405; and Harbottle v. Central Coal & Coke Co., 134 Ark. 254. The defendant did, however, file a motion in arrest of judgment; Under our statute (Crawford & Moses’ Dig., § -3224), a judgment can only be arrested on the ground that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Under this statute every material fact constituting the offense must be alleged in the indictment; but in determining this question the language used will be construed in favor of the validity of the indictment unless such interpretation is contrary to the plain and usual meaning of the words of the indictment. Loudermilk v. State, 110 Ark. 549.

The body of the indictment is as follows: “The grand jury of Polk County, in the name and by the authority of the State of Arkansas, accuse Mark Dover of the crime of receiving deposits in an insolvent bank, committed .as follows:

. .- “The said Mark Dover, in the county and State aforesaid, on the 16th day of October, 1923, being then and.there a director in the Bank of Hatfield, a corporation, did unlawfully, knowingly and feloniously permit, connive at and assent to the receipt on deposit in the said Bank of Hatfield, $40 in gold, silver and paper money, of the value of $40, from Boyd Coleman, the said Mark Dover then and there well knowing at the time that-said -Bank of Hatfield was insolvent and in a failing condition, against the peace and dignity of the.State of Arkansas.”

The indictment charges that Mark Dover, as a director in the Bank of Hatfield, a corporation, did, at a certain time and place, assent to the receipt of a deposit in said bank of $40 from Boyd Coleman, knowing at the time that the bank was insolvent.

The defendant was indicted under § 697 of Crawford & Moses’ Digest. The section reads as follows: “It shall be a crime for any president, director, manager, cashier or other officer or employee of any bank, or member of a firm, after having had knowledge of the fact that it is insolvent, or in a failing condition, to assent to the reception of any deposits or the creation of any debts by it. And if any such officer, employee, member of firm or individual shall knowingly receive a deposit or cause a debt to be created, or assent thereto, or in any manner is accessory to such crime, he shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than one year.”

Thus it will be seen that the language of the indictment contains a statement of the facts constituting the offense under the statute' in ordinary and concise words and in such manner as to enable a person of common understanding to know what is intended. But it is insisted that the indictment does not charge that the Bank of Hatfield was in fact a bank or engaged in the banking business. We think that this fact is charged by necessary intendment from the language used in the indictment. The corporation of which the defendant was a director is called the Bank of Hatfield, and it is charged that the defendant assented to receiving a deposit of $40, knowing at the time that the Bank of Hatfield was insolvent. A bank is usually defined to be an association or corporation whose business it is to receive money on deposit, etc. 7 O. J., p. 473. Therefore we think the indictment meets the requirements of the law under a motion in' arrest of judgment. See Wilkins v. State, 121 Ark. 219, and Collman v. State, 161 Ark. 351.

A reversal of the judgment is also urged because the evidence is not legally sufficient to support the verdict, and because the court erred in giving certain instructions to the jury. Both of these alleged errors may be disposed of together, for the reason that they are based upon the same state of facts. The facts summarized make it clear that the Bank of Hatfield was a 'corporation engaged in the banking business in the town of Hatfield, Polk County, Arkansas; that the defendant, Mark Dover, was a director in the bank during the year 1923; that Boyd Coleman deposited $40 in the bank on the 16th day of October, 1923, and that the deposit was accepted by Roy Holder, the cashier of the bank; that the defendant, Mark Dover, was not present in the bank at the time; that the bank was insolvent at the time the deposit was received, and had been for some time prior thereto; that the bank suspended business on October 17, 1923, and the State Bank Commissioner took charge of it, and that several witnesses testified that the defendant had told them, some time before the deposit in question was received, that he knew the bank was insol /ent.

It is the contention of counsel for the defendant that the instructions complained of are erroneous, and. the facts relied upon for a conviction are insufficient in law, because the defendant did not receive the deposit, was not personally present in the bank when it was made, and did not in any wise advise or consent to the cashier’s receiving the particular deposit in question.

We have copied above the section of the statute under which the defendant was indicted and convicted. It provides that it shall be a crime for any director of any bank, after knowledge that it is insolvent, to assent to the reception of any deposit. The purpose of this statute is to protect the depositors in a bank by punishing its officers for assenting to the receiving of deposits when the bank is insolvent. By necessary implication, it makes it the duty of the directors to refrain from receiving deposits or assenting to their receipt when they know that the bank is insolvent. It is the dutv of the directors to give personal supervision to the affairs of the bank, and its solvency or insolvency should be a matter peculiarly within their knowledge. On the other hand, depositors have no means of accurately informing themselves on the subject. It is a matter of common knowledge 'that bank deposits aré made upon a wholly different reliance as to security than in the loan of money. Generally when money is lent, security is expected and demanded. Money is deposited in a bank because of confidence in its solvency and ability to repay because it is a bank. The business of a bank is not confined to the property owned by the bank, but includes and involves all deposits and other property passing through its hands or intrusted to its keeping. While the bank continues in business, it holds out to the public the assurance' of its solvency and ability to meet its obligations. To construe the statute as applicable only to the agent of the bank who' actually receives the deposit, or connives at the receipt of it, would have the practical effect of nullifying the statute. If the- directors, knowing the bank to be insolvent, could make use of the teller to receive the deposit for the bank, and escape civil and criminal liability because they had nothing to do with the actual receipt of the deposit or connived at its receipt, then the statute might' as well'not have been passed. They could leave the receipt of deposits wholly in the hands of a teller, and, by keeping •him- in ignorance of the insolvency of the bank, they all could escape responsibility under the statute. ’ ’

The reasonable construction is that, when the receiving teller of a bank accepts a deposit' for it, it is an act performed for the bank on the authority of the directors. Statutes imposing criminal liability on officers of insolvent banks, who receive or assent to the receipt of deposits, have been generally sustained. The reason is that the right to engage in banking may be regulated by legislation, and the business must be carried' on in Strict accordance with such statutes. ' This view' of similar statutes is sustained by the following authorities: State v. Mitchell, 96 Miss. 259, 51 So. 4, Ann. Cas. 1912B 309; State v. Eifert (Iowa), 38 L. R. A. 485; Baker v. State, 54 Wis. 376; 12 N. W. 12; Carr v. State (Ala.), 16 So. 150; State v. Caldwell (Iowa), 44 N. W. 700; State v. Sattley (Mo.), 33 S. W. 41; and McClure v. People (Colo.), 61 Pac. 612. The constitutionality of the statute -in question has been upheld by this court in Collman v. State, 161 Ark. 351 and cases cited.

’ In the present case it clearly appears that the bank was insolvent at the time the deposit in question was "made. Several witnesses testified that the defendant, a •short time before the bank closed its doors and before the deposit in question was made, stated to them that he -knew that the bank was insolvent. As we have just seen, the mere fact that he was not personally present when the deposit was received by the cashier did not relieve him from responsibility under the statute. The gist of “the offense was in the defendant’s assenting to the receipt 'of a “deposit, knowing that the bank was then insolvent. If he intended to relieve himself of responsibility under 'the statute, he should have protested against the receipt of any deposits by the bank after he knew that it was insolvent.

■ It is true that there is testimony in the record tending to show that a former officer of the bank caused its insolvency, and that the defendant became a director 'of the bank for the purpose of protecting the interests that' he and his business associates had in the bank, and was trying to work out a method of relieving the stockholders of its financial difficulties. These facts, however, did not relieve the defendant from criminal liability under the statute, but such testimony was proper to go to the jury to be considered by it in mitigation of his punishment.

. - .Section 717 of Crawford & Moses’ Digest provides .that a bank shall be deemed insolvent within the meaning of’the act upon the existence of certain stated facts.-' No objection can be made to the validity of this section of the statute. As we have already seen, the gist of the .offense was in receiving the money on deposit, .with the knowledge on the part of the defendant that the bank was insolvent, and the proviso of the statute as-to • what constitutes insolvency is merely a rule of evidence;-:-

There is some conflict in the authorities as to whether the closing of the doors of a bank by a State Bank Commissioner, just after the receipt of a deposit, could be made prima facie evidence by the statute not alone of the insolvency of the bank at the time the money was received, bpt of the knowledge of the officers of the bank of that fact. State v. Buck, 120 Mo. 479, and cases cited; Meadowcroft v. People (Ill.), 35 L. R. A. 176, and cases cited; and People v. Cannon, 139 N. Y. 32. We need not decide this question, however, for it is plain from reading these cases and the opposing authorities that the general power of the Legislature to prescribe rules of evidence and methods of proof is undoubted. All of the authorities agree that, in .statutes of this sort, the Legislature. might have the power to define what would constitute insolvency under the banking law. The 'business of a banker is affected by a public interest, and therefore subject to public regulation. As a part of the regulatory act, the Legislature would have the undoubted power to define what would constitute insolvency within the meaning of the act. The definition by statute would inure, not only to the benefit of the general public doing business with banks, but also to the banks themselves.

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


text:
    Jordan v. State.
    Opinion delivered September 29, 1924.
    1. Witnesses — impeachment on cross-examination. — While the accused could not be asked on his cross-examination about a mere accusation or an indictment, he could be asked whether he had committed a similar offense or had been convicted of it.
    2. Rape — exclusion op testimony as to conduct op prosecutrix. —Where there-was no issue in a prosecution for assault with intent to rape, as to the prosecutrix having consented to sexual intercourse, it was not error to exclude testimony tending to show that she had taken improper liberties with other young men.

      3. Criminal law — invited error. — Where defendant undertook to prove that he was being persecuted, and that there was an attempt to blackmail him, it was not error to permit the State to contradict such testimony in rebuttal.
    4. Criminal law — order of introduction of testimony. — It rests within the sound discretion of the trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed unless an abuse is shown.
    Appeal from Pope -Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Hays, Priddy & Hays, for appellant.

      J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.-
   Smith, J.

Appellant was convicted of an assault with the intent to commit rape, alleged to have been committed upon the person of Neulion Spann. He denied having made the assault, and, while the testimony upon this issue is in sharp and irreconcilable conflict, it is conceded that the testimony is legally sufficient to support the verdict.

Error is assigned in the admission and in the exclusion of certain testimony and in giving an instruction numbered 7, over appellant’s objection.

It is insisted that the court erred in permitting the prosecuting attorney to interrogate appellant on Ms cross-examination. This testimony related to a prior assault upon another female, and it is insisted that the effect of tMs cross-examination was to -show that appellant had been indicted for a similar offense and accused of another of like nature.

It appears, however, that the judge had before him at the time this question arose the opimon of this court in the recent case of Parnell v. State, 163 Ark. 316, to which he referred and to which his ruling conformed, and -this was that appellant could not be asked on Ms cross-examination about a mere accusation or an indictment, but that he could be asked if he had committed the •offense or had been convicted of it.

The court excluded testimony tending to show that Miss Spann had fondled certain young men, yet. gavé instruction numbered 7, reading as follows: “Gentlemen of the jury, you are instructed that you may take into consideration any acts of Neulion Spann tending to lewdness, if any such acts are shown by the testimony, and also the general reputation of the said Neulion Spann for chastity; this evidence is to be considered by you for the purpose of determining whether the said Neulion .Spann did or did not consent to the alleged’ attempt of the defendant to have intercourse with her.”

The court properly excluded this testimony, as there was no issue in the case of consent. Maxey v. State, 66 Ark. 523. Having excluded this testimony, instruction numbered 7 should not have been given, as it was abstract; but we do not think it was prejudicial, for the reason, as we have stated, that no contention was made that Miss Spann had consented. In the case of Brust v. State, 153 Ark. 348, we quoted from the case of Lockett v. State, 136 Ark. 473, as follows: “ ‘Now, it was competent, of course, to impeach the credibility of the prosecuting wit-mess on cross-examination by interrogating her concerning particular instances of immorality on her part, but appellant was bound by her answers on that subject, and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.’ ”

It is next insisted that the court erred in permitting the State to interrogate W. M. Burnett in regard to a ■ difficulty ‘ between appellant and Miss Spann’s father, ’which occurred at appellant’s home about a month after the commission of the alleged assault, and the day before appellant was arrested on that charge. ■ Appellant had closed his case when this witness was called, and it’ is insisted (a) that the testimony was incompetent for any purpose, and (b) that, if competent at all, it wás’ hot proper as rebuttal. ’ ."

We do not'think either objection is well'taken: Tt ■ was the theory of the defense that the prosecution was a “frame-up,” designed to extort money from appellant, 'and'that it culminated when appellant insisted'that the father of Miss Spann pay him a debt secured by'a mórtgage on .certain live stock, and Ms refusal to, release -this mortgage.. A fight occurred at the time and-place-mentioned, the circumstances of which were detailed by appellant as a witness, and, according to his version* Mri Spann was the ag’gressor. According to .the testimony of Burnett, appellant was the aggressor .in this difficulty* and we think no error was committed in- permitting Mm to so testify. Appellant had attempted to show that-hé was being persecuted, and that there was an attempt to blackmail Mm, and, having offered testimony to •'establish that defense, there was no error in permitting the State to rebut it. Moreover, it rests within the sound discretion of trial courts-to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed unless an abuse is shown, and theré appears to have been no abuse of this discretion here. Wells v. State, 151 Ark. 221.

No error appearing, the judgment is affirmed.


author: Habt, J.,

text:
    Reeves v. Reeves.
    Opinion delivered October 6, 1924.
    Trusts — resulting trust — created how.- — In order to .constitute a resulting trust, the purchase money or a specified part of it must be paid by another, or secured by another-at the same time or previously to the purchase, and must .be a part.of that transaction.
    . Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.
    statement oe eacts.
    Appellees brought this suit in equity against appellant to settle the title to two tracts of land and to have .partition of the same.
    .- Appellees, A. J. Reeves and Rosie Haller, and appél■laiit, John Reeves, áre the children and sole heirs at law of J.' L. Reeves, who died intestate many years ago, owning 90.78 acres of land in the Northern District of Arb ansas County, Arkansas. The land was his homestead, and Ms widow and three minor ■children continued to reside thereon after his death. In the year 1904 his widow, Martha H. Reeves, exchanged the timber on the homestead for forty acres of land adjoining it. The title to the forty-acre tract was taken in the name of Martha H. Reeves; but it was understood that it was to become a part of the estate of J. L. Reeves, and to go to his children after the death of Ms widow. In other Words, it was understood that the forty-acre tract should become a part of the homestead and go to the children after the death- of their mother. There were three children, and the object of buying the forty acres was to enlarge the bounds of the homestead so that each child should get about forty acres of land after the death of their mother.
    At the time the depositions were taken in this, case in 1922, A. J. Reeves was forty-six, Rosie Haller forty-four, and John Reeves was forty years of age. In 1913 Martha H. Reeves conveyed the forty-acre tract to John Reeves, and he has been in possession of it ever since.
    It is the contention of appellees that the forty-acre tract was conveyed to John Reeves as his share of the land belonging to his father’s estate, and that he had accepted it.
    Appellant John Reeves denies this to be the fact, and claims his share in the homestead owned by his father at his death."
    The testimony on this point will be stated more at length in the discussion of tMs branch of the case in the opinion.
    After hearing the testimony, the chancellor found that, in the year 1904, Martha H. Reeves, the widow of J. L. Reeves, deceased, with the consent of her children, exchanged the timber on the homestead for forty acres of land adjoining it; that the purpose of the exchange was to provide about forty acres of land for each of her three children at the date of her death; that, in 1913, the mother conveyed the forty-acre tract to John Reeves as Ms share of the land owned by his father, and that he went into possession of said forty-acre tract, and has been in possession of it ever since; that A. J. Reeves and Rosie Haller are entitled to have the land wMch' comprised the homestead at the date of the death of their father as their share of Ms estate, and that John Reeves is entitled to the forty-acre tract as his share of said estate.
    A decree was entered in accordance with the finding of the chancellor, and John Reeves has duly prosecuted an appeal to this court.

      M. F. Elms, for appellant.
    The removal and conveyance by Martha H. Reeves of the timber and timber rights on the homestead tract of land, did not constitute her a trustee for the heirs of J. L. Reeves in the purchase of the additional tract; but, if appellees suffered any depreciation in their estate by reason of this transaction, their remedy would be by an action for damages against the estate of Martha H. Reeves for waste committed by removing the timber or making sale of same. 27 R. C. L. 1047, 1050; 95 Ark. 246; 85 Ark. 208. The deed to Martha H. Reeves, and from her to appellant, were both absolute in form. 110 Ark. 389. Appellant’s possession and exercise of ownersMp of this tract of land have been entirely inconsistent with any trust relation. Even if a trust relation ever existed, it was repudiated, and appellees are barred by his adverse possession. 110 Ark. 389; 101 Ark. 230; 103 Ark. 58. It is settled that one co-tenant may hold adversely to the others. 99 Ark. 446; Id.. 84; 1 R. C. L. 741, 742.

      John L. Ingram, for appellees.
    The testimony shows a general agreement and understanding among the parties interested, the widow and the heirs at law, that the timber on the homestead was traded for the forty-acre tract, in order to carry out the desire of the mother that the children should have forty acres each. Hers was a life estate only in the homestead, and she could not dispose of it without the con.sent of the children. 73 Ark. 329; 92 Ark. 261 ;63 Ark. 10. Such being the agreement as shown by the testimony, appellant, in accepting a deed to the forty-acre tract, took it as his share of the land.
   Habt, J.,

(After stating the facts). In order to constitute a resulting trust, the purchase money or a speck fied part of it.must be paid by another, or secured by another at the same time, or previously to the purchase, .and must be a part of that transaction. In short, the trust must arise.by virtue of the purchase and not after-wards. Pumphrey v. Furlow, 144 Ark. 219, and Brownfield v. Bookout, 147 Ark. 555.

Martha H. Reeves died in 1921, .and the complaint in this suit was filed in 1922. A written contract was made on the 23d day of May, 1904, whereby Martha H. Reeves agreed to convey the timber on the homestead which her husband owned at the date of his death, to W. B. Bynum in exchange for forty acres of land owned by him. On the back of the contract appears the signatures of A. J. Reeves and John Reeves, with a notation that they agreed to the contract.

A. J. Reeves and Rosie Haller, his sister, both testified that the-timber on the homestead was exchanged- by their mother for the forty-acre tract with the consent of all her children, and that the title to the forty-acre tract was taken in the name of the mother; but that it was understood that the forty-acre tract was to become a part of the homestead and go to all three of the children in equal parts after the death of their mother. John Reeves does not contradict this part of their testimony.

The growing trees or timber on the homestead constituted a part of the realty, and the heirs at law of J. L. Reeves, deceased, were necessary parties to a valid conveyance thereof. Chicago Land & Timber Co. v. Dorris, 139 Ark. 333.

The children and heirs at law of J. L. Reeves, deceased, were parties to the contract, and although, by agreement, the title was taken in the name-of the mother, there was a resulting trust in their favor, because the purchase money was paid by .them. It was understood that Martha H. Reeves was exchanging the timber on the homestead for the forty acres of land, and that the forty acres would belong to her husband’s estate at her death. In August, 1913, she conveyed the forty acres of land to John Reeves, who took possession of it and has remained in possession of it ever since. 1 .

According to the testimony of A. J. Reeves, his mother died at his house on the 2d day of November, 1921. She was eighty-six years of age, and had been partially paralyzed for five or six years. Some time in the month of May preceding her death, she had divided “her personal property'between her three children, at his house. John Reeves was present. At that time Martha H. Reeves could hardly talk on account of being partially -paralyzed. Ed Stokes, who was present and assisting them in the division of the personal property, said to John Reeves: “Isn’t it a fact that your mother deeded -you the forty-acre tract as your part of the estate?” John nodded his head that she did. He testified further that his mother could not say anything, but nodded her head to give them to understand that she intended for John to have this forty-acre tract as his part of the land.

According to the testimony of Ed Stokes, he was present to assist Mrs. Reeves in the division of her-personal property. She first wanted her debts and funeral expenses paid out of her own money in the bank, and the balance to be divided equally among her three children. She did not want any disputes over her personal property. She stated to witness that her husband had died a good many years ago, leaving a fractional eighty acres of land; that she and her children had sold the growing-timber on the homestead for forty acres of land; that it was the intention of herself and of all her children that this additional forty acres would give each one of the three- children, forty acres of land after her death. She further stated that the title to this additional f-orty acres was vested in her and later conveyed by her to John Reeves. 'She stated in effect that the conveyance to John Reeves was accepted by him as his part of the estate; and that John Reeves was present when this conversation was had.

According to the testimony of John Reeves, the forty acres in question were not conveyed to him as his part of the estate, and the conveyance was not so accepted by him. His mother had given to A. J. Reeves and to Rosie Haller other tracts of land, and the forty acres was conveyed to him so that his share might be equal to what had been given them.

They denied this, however. Rosie Haller admitted that she had an additional tract of land, but testified that she had purchased it with her own means, and that her mother had nothing to do with the purchase whatever. A. J. Reeves admitted that his mother had donated a tract of land for him and had paid $10 of the donation fee. He stated, however, that the donation was in the name of his mother, because at the time he was only twenty years of age, and on that account he could not take the donation certificate in his own name. He performed the necessary work and did everything in order to perfect his title and to receive the donation deed.

The chancellor found all the issues of fact in favor of the appellees, and a careful consideration of the evidence in the record leads us to the 'conclusion that the finding of the chancellor is not contrary to the weight of the evidence. The chancellor expressly found that John Reeves accepted a deed to the forty-acre tract as his part of his father’s estate, and that the other two children were entitled to the homestead, which comprised about ninety acres. Hnder the settled rules of practice in this State, the finding of the chancellor on this point, not being against the weight of the evidence, must be affirmed on appeal.

Again, it is insisted by counsel for appellant that the house on the homestead burned down, and that John Reeves rebuilt it, and also paid the taxes on the homestead and cleared a part of it. Therefore they insist that he is entitled to a lien on the homestead for the amount so expended by him.

Oil this branch of the case. the. testimony shows that John Beeves resided on the homestead during all of this time with his mother as a member of her family. It was the duty of the life tenant to pay the taxes. The rents were sufficient for this purpose, and also for the purpose of rebuilding the homestead when it burned down. The new home consisted of three rooms, and it only cost about $125 to build it. While the tax receipts were taken in the name of John Beeves, as above stated, he resided with his mother as a member of the family, and, according to the • testimony of A. J. Beeves, the rents on the land were more than sufficient to support his mother in'the style in which she lived, and to rebuild the homestead and pay the taxes and make the, necessary repairs on the homestead. In fact, he testified that his mother furnished the money to pay for the new home.

It follows that the decree will be affirmed.