author:
Habt, J.,
      MoITaney, J.

text:
    Sebastian Building & Loan Association v. Minten.
    Opinion delivered May 5, 1930.

      George W. Dodcl, and Geo. F. Yomnans, for appellants.

      A. M. Dobbs and J. B. McDonough, for appellees.
   Habt, J.,

(after stating the facts). At the time that the Ferguson Lumber Company made the contract with T. iB. Westmoreland to furnish him the materials to be used in the construction of the two houses, the latter could not be said to be the owner within the meaning of § 6933 of the Digest. The contract was made prior to the 14th day of February, 1927, to supply the materials, and according to the evidence for the Ferguson Lumber Company, a part of the materials for the houses was delivered on the lots on that day. At this time the title to the lots was in J. C. Pierce. Westmoreland had only an oral contract to purchase the lot's, which was not enforceable in any court. It is true that he took possession of the lots, and dug trenches or ditches to be used in the foundations of the houses. Westmoreland’s oral contract only fixed the price at which he could purchase the lots, and it contemplated that there should be a future conveyance to him of the lots upon pajunent of the purchase price, before the sale was consummated. Until then, be could not charge the lots with the statutory lien, because he ivas not the holder of any interest in the lots; and because he was not the owner in contemplation of our mechanics ’ lien statute. Such a lien is an interest in the land, and attaches to the legal or equitable title. It can be established only in the manner provided by statute, which requires the agreement or assent, express or implied, on the part of the owner, whose interest in the land is sought to be charged with the lien. 'Westmore-land cannot be regarded as the owner within the meaning of the statute before the time of the conveyance to him' by Pierce. His subsequent acquisition of the title could not relate back to the date of his parol contract. It was a new title, and there is nothing to show that Pierce gave his consent to Westmoreland agreeing to a lien to be charged against his interest in the land. Hayes v. Fessenden, 106 Mass. 228; Saunders v. Bennett, 160 Mass. 48, 35 N. E. 111, 39 A. S. R. 456; and Courtemanche v. Blackstone Valley Street R. Co., 170 Mass. 50, 48 N. E. 937, 64 A. S. R. 275. We are of the opinion that Westmoreland, having only an oral contract to purchase, was not the owner within the meaning of our mechanics’ lien statute. The conclusion we have reached is supported by our own decisions bearing on the question.

In the construction of an earlier mechanics’ lien statute, the court held that a contract for labor and materials, made by a vendee under an oral contract or privilege to purchase, would not subject the legal owner’s interest to a lien, even if the latter had knowledge that the labor and materials were being furnished. Thomas v. Ellison, 57 Ark. 481, 22 S. W. 95. While this court is committed to the rule that the vendee under a valid and enforceable executory contract of sale has an interest on which he could create a lien in favor of mechanics and materialmen under our statute, it is equally positive in holding- that in such cases no element of estoppel arises against the vendor by mere knowledge or even his consent that the labor and material were furnished for the construction of the building’, in the absence of some affirmative act which showed that he had consented to subordinate his claim to that of the laborers and material-men. Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348, and Fine v. Dyke Bros., 175 Ark. 672, 300 S. W. 375, 58 A. L. R. 907.

In Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S. W. (2d) 726, the court said that something more than mere possession was necessary, and that there must be some sort of present interest to enable one claimingas vendee to support an agreement for a mechanics’ lien under our statute. In short, in order to charge the land with a mechanics’ or materialman’s lien under our statute, mere possession of the land is not sufficient; but the person seeking to charge the land with a lien under the statute must have some interest either legal or equitable which may be enforced in the courts.

This brings us to a consideration of the construction to be placed upon § 6909 of the Digest, which reads as follows: “The lien for the things aforesaid, or work, shall attach to the buildings, erections, or other improvements for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection, or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, however, that, in all cases where said prior lien or incumbrance or mortgage was given or executed for the-purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act. ’ ’

•Counsel for the claimants of liens, for materials and labor contend that the Legislature did not intend to prefer the lien of the mortgagee over that of a laborer or materialman, where the former loans his money on the representation that it is borrowed for the purpose of improving the mortgaged property, unless it is in fact expended for that purpose, and that it is incumbent upon the mortgagee to establish this fact, as held in the majority opinion delivered by Judge Thayer in Chauncey v. Dyke Bros., 119 Fed. 1. On the other hand, counsel for the mortgagees insist that the dissenting opinion in that case by Judge Sanborn, to the effect that the purpose of the loan should determine its superiority over the claims of laborers and materialmen, carried out the declared intent of the Legislature. The majority opinion in that case expressed the view that this was an unreasonable interpretation of the statute, and one that would enable a mortgagee to defeat an equity, which the statute clearly recognizes as superior, and an equity which it was designed to protect. It is said that the Legislature knew that the lender usually sees to it that the money is used as the borrower promised to use it, and that the lien statute was framed with reference to this well known habit of men who loan money on the security of real estate. We do not think so. The binding force of a mortgage results from the contract between the parties as expressed in the mortgage, and becomes a lien on the real property from the time it is filed for record. The money borrowed pursuant to the terms of the mortgage is turned over to the mortgagor, and the mortgagee no longer has any control over it, unless there should be a special clause in the mortgage looking to that end. As said by Judge Sanborn, this would require the substitution of the word ‘‘use” instead of “purpose” in the statute; and the courts have no warrant to do this. There is nothing in the language used in the statute to indicate that the Legislature intended that the mortgagee must see to the use, or the application of the money raised by such mortgages. The legislative declarations was that the purpose of the loan should determine its superiority. The provision of § 6909 expressly declares that the purpose for which the mortgage is given determines its superiority over subsequent mechanics’ liens. The lien in favor "of mechanics and materialmen is wholly statutory, and the lien claimant must bring himsélf within the provisions of the statute in order to be entitled to a lien. If the Legislature had intended the use to which the money borrowed was the test of the superiority of the liens, it doubtless would have so declared, instead of making the purpose for which the money was borrowed the test. After a review1, of the authorities on statutory interpretation, Judge Sanborn, said: “Apply the rule which these authorities announce to the statute in hand. It declares without uncertainty or doubt that the liens of prior mortgages whose proceeds v7ere raised for the purpose of making improvements upon the mortgaged property are superior to subsequent mechanics’ liens. It says: ‘that in all cases where said prior lien or in-cumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act.’ The contention is that it intended to except from that declaration the liens of all such prior mortgages the proceeds of which were not actually used to make the improvements. In other vmrds, the argument is that the Legislature enacted that the purpose of the loan should be the test of its superiority when it intended to provide that the use of the loan should constitute that test. But the difference between purpose and use is patent in common parlance, in legislation, and in the law. Statutes which authorize the issue of municipal bonds invariably specify the purpose for which they may be issued and sold. If issued for that purpose, they are valid; if for any other purpose, they are void. But it is a well-established principle, vdiich has been uniformly and repeatedly sustained by the decisions of this court, that the fact that the proceeds of such bonds have not been used for the purpose for which they have been raised constitutes no defense to the bonds. The test of their validity is the purpose for which the proceeds were obtained, not the use to which they were applied. (Citing authorities). The Legislature of Arkansas could not have been ignorant of the difference between purpose and use when it enacted this statute. It had undoubted power to choose whether the purpose of raising the proceeds of the mortgage loans or .their use, should determine the. superiority of the liens of the mortgages. It chose and clearly provided that the purpose should constitute the test. This was a positive declaration that the use should not constitute it, for the expression of one alternative is the exclusion of the other, and it seems to me that it left no tenable ground for the position that the Legislature intended that any other test than that which it plainly expressed should determine the superiority of the liens of such mortgages. The legal presumption becomes conclusive that the Legislature meant what it so clearly expressed, and that it meant nothing else.”

Under the test prescribed by the statute, laborers and materialmen can learn the purpose for which the money was raised by examining the clerk’s records, and, if they do not believe the borrower will use it for that purpose, they may refuse to perform labor or furnish material towards the construction of the contemplated improvement. In any event, the statute should be construed as it was enacted by the Legislature, with its plain declaration that the sole test of the superiority of liens upon lands before improvements are made is the purpose for which the money is raised or borrowed, and not the use made of it. The result of our views on this branch of the case is that the Sebastian Building & Loan Association has a prior lien under § 6909 to the mechanics’ and materialmen’s liens claimed herein, but that the mortgage of Dr. C. S. Means has no such priority, because it was not recorded.

Section 7381 of the Digest provides that every mortgage shall be a lien on the mortgag’ed property from the time it is filed for record, and not before. This view is in accord with our own previous expressions on the question. In Shaw v. Rackensack Apartment Corp., 174 Ark. 492, 295 S. W. 966, it was held that a mortgage for the purpose of raising money to erect a building which was filed prior to the commencement of work by a lien claimant, was superior to a lien, for labor and material furnished, notwithstanding that some of the loan, for which the mortgage was given, was used for clearing the title. Again in Duncan v. Travellers Bldg. & Loan Assn., 178 Ark. 17, 9 S. W. (2d) 773, it was held that the lien of a mortgage upon land securing a loan for the payment of the purchase price was superior to a materialman’s lien, where the materials were furnished two days after the mortgage was recorded.

It is contended by the attorney for Dr. C. S. Means that it would be inequitable to allow, as against him, a single mechanic’s lien in favor of the Ferguson Lumber Company for the total amount of the materials furnished for both buildings, and in this contention we think counsel is correct, under the particular facts of the present case. In reaching this conclusion, we are not unmindful of our previous decisions to the effect that where labor is performed, or materials furnished under one contract and for one owner, for two or more buildings on contiguous lots, a single mechanics’ lien may be filed against all the buildings. Tenny v. Sly, 54 Ark. 93, 14 S. W. 1091; Meek v. Parker, 63 Ark. 67, 38 S. W. 900; Central Lumber Co. v. Braddock Land & Granite Co., 84 Ark. 560, 105 S. W. 583; Burel v. East Ark. Lumber Co., 129 Ark. 58, 195 S. W. 378; Hill v. Imboden, 346 Ark. 99, 225 S. W. 330; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353, and Crown Central Petroleum Co. v. Frick-Reid Supply Co., 173 Ark. 983, 293 S. W. 3012. That such holding is in accord with the trend of authority, see case note to 11 A. L. R. at p. 1026.

In all the oases, the houses were built pursuant to one contract, and it might not have been practical for the contractor to have kept a separate account for the materials furnished for each house. There was nothing to make it inequitable for tbe contractor or materialman to file a single lien on all tbe bouses. Hence tbe court in each ease properly beld that they were not bound to apportion tbe amount of tbeir lien between tbe several bouses. At tbe time tbe work was done and tbe lien was filed, all tbe bouses were owned by tbe same party, and there could be no valid objection to treating them all as practically one building and permitting tbe lien claimant to embrace them all in a single proceeding, and allowing one lien to be filed covering all. In tbe present case, tbe two bouses were constructed on contiguous lots, of tbe same materials, size, style and price, both to be erected and completed witbin tbe same time. Tbe Ferguson Lumber 'Company was to furnish all tbe material for each bouse. Dr. Means, before the house on lot 2 was commenced, agreed verbally to purchase it when completed for $5,000. He advanced Westmoreland $3,100 of tbe consideration, $1,150 of which was used in paying tbe purchase price of tbe lot. • To secure tbe payment of tbe $3,100, Westmoreland gave Dr. Means a mortgage on tbe lot dated February 16, 1927, but this mortgage was never filed for record. On June 29, 1927, Dr. Means filed for record bis deed from Westmoreland to the lot, and Westmoreland represented to him all persons who might assert liens for labor or materials bad been paid, and that there was nothing against tbe lot. Westmoreland died after tbe institution of tbe present suit without giving bis testimony in it. While we are of tbe opinion that under tbe authorities above cited one notice or claim for lien was all that was required of tbe Ferguson Lumber Company, where other rights are to be affected as here, tbe amount of tbe lien of tbe Ferguson Lumber Company should be apportioned, and that a lien should be asserted and enforced against lot 2 for half tbe amount of tbe materials furnished, that being tbe particular amount of material which was furnished for tbe bouse on said lot 2. It will be remembered that tbe buildings are separate and apart, and that the one on lot '2 now belongs to Dr. Means, and that tbe house on lot 3 still belongs to the estate of T. B. Westmoreland, deceased. We think this result was recognized in Tenney v. Sly, 54 Ark. 93, 14 S. W. 1091, although the particular facts of that case did not call for its application.

The claim of the Ferguson Lumber Company for the paint and oil furnished by it for both houses will be disallowed on the ground that it was. not used on the houses. The evidence shows that it was delivered on the two lots to be used in painting the two houses to be erected thereon. The Ferguson Lumber Company was furnishing- Westmoreland, who was a house builder, similar materials to be used elsewhere. The person who actually painted the two houses testified that he did so under contract with Westmoreland, and furnished his own paint and oil. Other witnesses testified that the amount of paint and oil furnished by the Ferguson Lumber Company to be used in painting the two houses was largely in excess of the amount necessary for that purpose. A deliver of the material upon the ground where the building is to be constructed is furnishing material within the meaning of the statute, and proof of such fact by the materialman -makes a prim,a fac.ie case in his favor. The owner or other party interested may show that the material was not used in the construction of the building, in order to defeat the lien for the material thus furnished. Van Houten Lumber Co. v. Planters’ National Bank, 159 Ark. 535, 252 S. W. 614, and Standard Lumber Co. v. Wilson, 173 Ark. 1024, 296 S. W. 27.

L. S. Minten filed a claim in the sum of $175 each for painting the houses and furnishing the paint and oil therefor on both houses. The lien therefor is acquired by filing a verified account within 90 days from the date the last item was furnished or the last labor performed. Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; Planters Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999, and Standard Lumber Co. v. Wilson, 173 Ark. 1024, 296 S. W. 27. Minten filed his claim for a lien under the statute on February 6, 1928. The proof shows that the last work done on the house on lot 3 was sometime in the month of November, 1927, but it is not shown that it was within 90 days. Therefore we find that he has no lien against the house on lot 3, because his claim therefor was not filed within 90 days after the last work was done, as required by statute.

As to lot 2, the last work done under the original contract was,in the month of November, 19'27, but Minten in January, 1928, painted a cabinet which had been torn out after the work was finished. Minten did this of his own volition, and not under his original contract. The work done was small and inconsequential. It was to compensate the deficiency in the work done under the original contract, and ought not to preserve the lien. It is Ihe continuity of the claim which gives it effect under the statute. The work under the original contract had already been completed and accepted more than 90 days before the lien claim was filed, and the claim for the work of painting the substituted cabinet by Minten on his own motion did not extend the time for filing his lien for painting the house under his original contract. In a case note to 54 A. L. R., at p. 984, it is said that the rule seems to be well settled that, where a contract to furnish material is to be regarded as completed, a subsequent gratuitous furnishing of material in the nature of a substitution or replacement to remedy a defect in the material originally delivered will not operate to extend the time within -which to claim a mechanics’ lien. Numerous cases from the courts of last resort of various States are cited which support the text.

The claim of Gr. W. Shirley for a lien for work done as a plumber will likewise be disallowed, because it was not filed until March 1, 1928, which was more than 90' days after the last material was installed under the original contract. It is sought to bring this claim within the 90-dav period by showing that 'Shirley put in a new sink on December 15, 1927. ’This work was done as a substitution or replacement of work under the original contract. Shirley filed a lien for $332.50 on lot 2. Shirley tore out the sink he pnt in under his original contract, and pnt in a new one without additional cost because he thought his work was defective. His work had been accepted under his original contract. The lien claim was not filed within the statutory time. The voluntary furnishing* a new sink to replace the one installed under the original contract because it was thought by him to be defective did not, under the rule above announced, extend the time for filing his lien. His conduct under the circumstance® was not the performance of labor or the furnishing material under his original contract. The substitution was for defective work done under the original contract, and took its place as of that date, and was not in continuation of the original contract.

The Mansfield Lumber Company filed a claim for $417:65 for material furnished to build the house on lot 3. The proof showed that the material was delivered on lot '2, and used in building- the house on it. The claimant sought to amend its account after 90' days had expired so as to make its claim for material apply to lot 2. This it could not do. It was required to comply with the statute in order to acquire a lien; and a failure to do so on the ground of mistake could not supply the omission. The lien is created by statute, and the statute must be complied with. The lien is founded on a contract between the owner and the materialman. Hence the account filed must correspond with the contract, and it cannot be amended, after the statutory time has expired, so as to include a different and separate lot or parcel of ground than that embraced in the claim filed within the time prescribed by statute.

It follows that the decree will be reversed, and the cause will be remanded with directions to the chancery court to render a .decree in accordance with this opinion ; and for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion.

It is so ordered.

MoITaney, J.

I dissent from that part of the opinion herein holding that Westmoreland was not the owner of lot 3 at the time he made the contract with Ferguson Lumber Company to furnish the material for the house on lot 3. He was either the owner or the agent of the owner. He was placed in possession of the lot, and the work was started and material furnished prior to the recording of appellant’s mortgage. The material lien was therefore prior to the mortgage under many decisions of this court. I am also of the opinion that the rule announced by Judge Thayer in the case mentioned 'by the majority opinion is the correct rule, and that the appellant was bound to see that the money loaned on the mortgage was actually used in the construction of the building. While we are not bound by the decision of the Circuit Court of Appeals construing our statute, still the courts generally, I believe, have followed same until the decision ought to be held to be a rule of property, and at least it ought to be highly persuasive.

I agree with the majority in other respects.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Madison-Smith Cadillac Company v. Wallace.
    Opinion delivered May 5, 1930.

      James B. McDonough, for appellant.

      Partain <& Agee, for appellee.
   Smith, J.

Appellee alleged as his cause of action that Boy Franklin, a sales agent of the Madison-Smith Cadillac Company, negligently ran a car lie was demonstrating' into appellee’s car and demolished it, and upton the trial from which this appeal comes he recovered judgment against both Franklin and the automobile company. The principal question of fact in the case was that of Franklin’s agency, but this issue was submitted under correct instructions and is concluded by the verdict of the jury, as the testimony is legally sufficient to support the finding that Franklin was the agent of his co-defendant, and was employed in. that capacity at the time of the collision.

Appellee testified that his car was a new Ford sedan, for which he had paid, including certain accessories and a license plate, $6'6'8.50, and that the car had been driven only about 1,300' miles, and had been demolished in the collision.

S. E. Langford, called as a witness by appellee, testified that lie was the manager of the Sheridan Ford' agency, which had sold the car to appellee; that the Sheridan wrecker went out and got the car and brought it to the garage, where it had since been; that the value of the car new, exclusive of certain extras which appellee had purchased, was $655, and this value had been depreciated $50 by the use of the car up to the time of the collision, and that the present value of the car was $100, as it had been practically ruined. Appellee did not order the car brought to the garage, and had not called for it.

Appellee’s testimony in regard to value is substantially identical with that of Langford. He also testified that a member of the Cadillac Company ordered the car taken to the Sheridan garage, and that he had not since had the car in his possession, and no tender of it to him had been made; that he had had no other car since “and it has cost me about a hundred dollars too.” It was not made clear1 just what items comprised this hundred dollars, but the loss of the use of the car was probably intended.

The oar has not heen repaired, and Langford estimated the repairs at $256.55, bnt admitted that while these repairs would, in a way, make the car as good as new, it would not be as valuable as it was before the collision. No one has used the car since the collision, but no one appears to question appellee’s right to its .possession.

Upon the question of the measure of damages the court gave over appellant’s objection, an instruction numbered 4, which reads as follows: “You are instructed that, if you find for the plaintiff, you may fix his damages at such a sum as will fairly compensate him for the damages sustained to his automobile, if any, and in that connection you are instructed that the plaintiff, if you find for him, will be entitled to recover the difference between the value of his automobile before the injury and the value of his automobile after the injury and damages to it, if any.”

The jury returned the following verdict: “We, the jury, find for the plaintiff against both defendants the sum of $518, his car, and $100 for the non-use of his car,” and .judgment was rendered accordingly, from which is this appeal.

As the testimony shows that the car had some value after the collision, the correct measure of damages was the difference 'between the value of the car before the collision and its value after that event, and instruction numbered 4, set out above, so declared the law, but the jury was further told in the instruction to fix the “damages to it, if any,” and the addition of this phrase must necessarily mean that the difference in value was not the only item of damage to be considered. The verdict for the hundred dollars for the non-use of the car must have been in response to this phrase. This is error.

The suit was not one in replevin. The right to the possession of the car is not involved. The car had no usable value until repaired, and the repairs were not made. The jury should, therefore, have been told to find only the difference in value of the car before and after the collision.

In the case of General Fire Extinguisher Co. v. Beal-Doyle Dry Goods Co., 110 Ark. 49, 160 S. W. 889 Ann. Cas. 1915D, 791, an instruction to that effect was approved, and in that connection we said: “And in C. B. & Q. Ry. Co. v. Metcalf, 63 N. W. 51, it is held: ‘Where chattels are injured by the negligence of another, but not wholly destroyed, the measure of damages is the difference between the value of the chattels immediately before and immediately after the injury.’ See, also 13 Cyc. 148.”

It was there pointed out that the rule is different where property has been lost or destroyed through the negligence of another, as in such oases the measure of damages is the value of the property at the time and place of the conversion or total destruction thereof, with interest thereon from that time. Here the car was not lost or destroyed, but has yet substantial value, and damages should, therefore, have been assessed only to compensate the difference or loss in value resulting from the collision.

The verdict of the jury makes it possible to correct the error without reversing the judgment, and this may be done by striking out the item of $100 for the non-use of the car, and, as thus modified, the judgment will be affirmed, as no other error appears.

Counsel for appellants has discussed assignments of error relating to the admission and exclusion of testimony, and to the giving and refusing to give certain instructions, and, while we have considered these assignments of error, we do not think they are of sufficient importance to require discussion.

The judgment will be modified by striking out the item- of $100 for the nonuse of the car, and, as thus modified, will be affirmed.


author: ■Smith, J.

text:
    Hill v. Schultz.
    Opinion delivered May 5, 1930.

      Eugene Sloan, for appellant.

      O. II. Hurst and Dudley $ Dudley, for appellee.
   ■Smith, J.

J. H. Jones owned a forty-acre tract of land, which was his homestead at the time of his death, which occurred in 1908. He was survived by his widow, Mrs. Luna Jones, and four children. Mrs. Jones continued to reside on the land, and in October, 1923, she married E. P. Schultz, and she and her second husband have since resided on the land. She and Mr. Schultz executed several mortgages on the land, which instruments purport to convey a fee simple title. The last of these mortgages was executed June 30, 1927, and on June 7, 1928, three of Mrs. Schultz’s children brought this suit, alleging the abandonment of the homestead as the result of these mortgages. Later the complaint was amended to allege that Mrs. Schultz had forfeited her life estate in the land by failing to pay the taxes due thereon over a period of several years. The land was redeemed from the tax sales by Mrs. Schultz before the complaint was amended to raise this question.

The chancellor found that there had been no abandonment of the homestead on account of the mortgages, and that the life estate had not forfeited on account of the nonpayment of the taxes, and this appeal is from that decree.

It is settled that the widow may abandon her homestead ; whether she has done so or not is a question of intention. Butler v. Butler, 176 Ark. 126, 2 S. W. (2d) 63. If she sells and conveys the homestead, the presumption of abandonment is conclusive, but a mortgage is not a sale.

It was held in the case of Moore v. Tillman, 170 Ark. 895, 282 S. W. 9, that a mortgage of land, entered for homestead purposes, by the entryman, prior to obtaining his patent or making final proof entitling him to a patent, was not an alienation of the land within the prohibition of Revised Statutes United States, § 2291, which section requires the entryman to make affidavit, before obtaining his patent, to the effect that no part of the land entered has been alienated. The entryman in that case had given a mortgage, and in holding that this was not an alienation it was there said: ‘ ‘But an analysis of these very cases will discover1 that a mortgage of lands is not a conveyance thereof carrying the absolute and unrestricted title thereto. On the contrary, while a. mortgage at law does carry the legal title, it is not, either at law or in equity, an absolute unconditional and indefeasible title. It becomes such only after the mortgagor has breached the condition of the mortgage and his equity of redemption has been f oreclosed. In other words, while the legal title under the law does vest in the mortgagee, still this is only for the purpose of enabling him to obtain security for the satisfaction of the debt or obligation due him by the mortgagor; and, when'that satisfaction is obtained, the legal title vests and remains in the mortgagor without the necessity of a reconveyance from the mortgagee. Thus, after all is said and done, a mortgage, in common parlance as well as legal acceptation, is. an instrument evidencing a security for debt — the conveyance or instrument to be void upon the discharge of the debt or obligation. As is well said in 19 R. C. L. page 242, § 2, ‘harmony and consistency have been achieved only by the complete adoption, by judicial decision or statute, of the original equitable conception that a mortgage is in fact a security — nothing more, nothing less!’ ”

There has been no foreclosure of the mortgages executed by Mr. and Mrs. Schultz, and her possession has not been disturbed by reason thereof, and we, therefore, hold that the execution oif the mortgages was not an abandonment of the homestead.

We are also of the opinion that the chancellor was correct in holding that there had been no forfeiture of the life estate under § 10054, C. & M. Digest, through failure to pay taxes. Redemptions were perfected before the question was raised. The case of Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836, is conclusive of this question. It was there said: “In the case of Magness v. Harris, 80 Ark. 583, [98 S. W. 362], we said that the manifest purpose of this statute is to afford the remainderman an opportunity to redeem during the last of the two years allowed by law for redemption of lands from a valid tax sale, and to cause a forfeiture of the estate of the life tenant for failure to redeem from such sale within the first year. It was the duty of Martha Mitchell, as the widow of Morris, to pay the taxes on the portion of this lot which she was occupying as her homestead, and, when she failed to do so, and the land had been unredeemed from the sale for a period of one year, intervener, and the other heirs of Morris, had the right to declare the life estate forfeited, and to take possession of the land. But they did not do so. Upon the contrary, they permitted the life tenant to redeem the land by purchasing it from the State, and, not having asserted the forfeiture while the land wras unredeenied and this could have been done, they waived their rights to assert this forfeiture by permitting the widow, who had continued to remain in possession of the lot, to redeem it as aforesaid. (Citing authorities).”

The decree of the court below is correct, and is therefore affirmed. v


text:
    Arkansas Mineral Products Company v. Creel.
    Opinion delivered May 5, 1930.

      Jume P. Wooten, for appellant.

      Taylor Roberts and Carmichael & Hendricks, for appellees. •
   Smith, J.

Appellee — the plaintiff below — alleged, and offered testimony tending to establish, the following facts. She is the widow and sole devisee under the will of her husband, S. H. Creel, who, prior to July 22, 1924, owned an eighty-acre tract of land in Saline County, upon which he thought there was a valuable1 clay deposit. He and J. M. Ensor organized a corporation known as the Arkansas Mineral Products 'Company, each taking 799 shares of the capital stock of the f ace value of $5 each. Two shares were issued to A. W. Hall. The corporation took over the tract of land owned by Creel, which was the only asset it ever had, and agreed to assume the payment of a note for $500 held by the People’s Trust Company, of Little Rock, which was secured by a deed of trust on the land, which the incorporators estimated was worth $8,000. The principal place of business of the corporation was Little Rock.

Ensor paid nothing for his stock, but was made president of the corporation. The note to the bank was not paid by the corporation, but was purchased by Ensor for his wife, who brought suit to foreclose, and took a foreclosure decree. To save the land from sale Creel and his wife paid the judgment.

After the organization of the corporation it was planned to sell additional stock, and B. F. Reinberger was employed to obtain this authority so to do from the State Blue Sky Department under a contract with him which provided that he should receive $500 of the stock of said corporation for his services. The permit was obtained from the Blue Sky Department, but no stock was sold, and none was issued to Reinberger, who brought suit for $500 as the value of his services. It was alleged that he1 conspired with Ensor to obtain this judgment, and that Ensor, as president of the corporation, entered its appearance and filed an answer admitting the justice of Reinberger’s claim, when he was fully advised that Reinberger’s contract entitled him only to have stock of the corporation issued in the sum of $500.

A judgment was rendered in the suit of Reinberger against the corporation,, and a certified copy thereof was filed with the circuit clerk of Saline County, upon which an execution was issued against the land owned by the corporation in that county, and Reinberger became the purchaser at _the execution sale. He assigned an undivided half interest in the certificate of purchase to Mrs. Ensor, the wife of the president of the corporation, and assigned the other undivided half to his own wife. It was alleged that all this was done pursuant to a conspiracy to acquire the title to the land.

Mrs. Creel further alleged that, as sole devisee of her husband, she was entitled to a judgment of $558.55 as of January 22, 1927, the date on which the land was redeemed from the foreclosure decree, which indebtedness the corporation had assumed and agreed to pay. It was alleged that the corporation was insolvent, and had no assets except the land in Saline County, and there was a prayer that a receiver be appointed to take charge of the land, and to wind up the corporation’s affairs. ' It was further prayed that the defendants, Mrs. Reinberger and Mrs. Ensor, be required, ¿s constructive trustees, to re-convey the land to the receiver, and that Mrs. Creel have judgment against the corporation for $558.55 and interest, and that the receiver be directed to sell the land and to apply the proceeds of the sale to the costs of the action, and to satisfaction otf plaintiff’s judgment and to disburse the balance, if any, to tbe parties as their respective interests are made to appear.

The answer alleged the good faith of all the transactions herein referred to, and denied specifically that fraud of any kind had been practiced, and the question of jurisdiction was raised both by the answer and by demurrer.

After hearing testimony the court entered a decree, which contained a finding of facts conforming substantially to the allegations of the complaint. It was adjudged and decreed that the plaintiff, Mrs. Creel, have judgment ag'ainst the corporation in the sum of $558.55, and that the lands (which were described) “be and are hereby divested out of defendants, Mrs. L. P. Ensor &nd Mrs. Emma Reinberger, and vested in the said H. S. Nixon, receiver.” The receiver was directed to give notice to all creditors of the corporation to exhibit their demands, and jurisdiction oif the case was retained to enforce the rights of the parties as therein adjudged. This appeal has been duly prosecuted from that decree.

We think the demurrer, which raised the question of jurisdiction to grant the relief prayed should have been sustained, for the reason that the action is local, and not transitory. By § 1164, C. & M. Digest, it is provided that “Actions for the following* causes must be brought in the county in which the subject oif the action, or some part thereof, is situated: First. For the recovery of real property, or of all estate or interest therein.”

Appellee insists, however, that this statute does not defeat the jurisdiction of the court, for the reason that the purpose of the suit is to have a trust declared and established, and that, as the suit was brought in the county in which the corporation is domiciled, equity may grant relief, upon declaring* the existence of a trust, by directions to the receiver.

In the chapter on equity in 10 R. C. L., § 115, page 365, it is said: “It is, however, undoubtedly a recognized doctrine that in cases of contract, trust, or fraud, a court of equity, sitting- in a State and having jurisdiction of the parties, is competent to entertain a suit for specific performance, or to establish a trust, or for a conveyance, although the contract, trust, or fraudulent title pertains to lands in another 'State or country, and such lands are necessarily affected by the court’s decree. But this jurisdiction is strictly limited to those cases in which the relief decreed can be obtained through the party’s personal obedience, and the decree in such suit imposes a mere personal obligation, enforceable by injunction, attachment, or like process against the person, and cannot operate ex proprio vigore on lands in another jurisdiction, to create, transfer, or vest a title.”

The decree here appealed from transfers and vests the title. Its effect is to cancel the execution deed, although it does not do so expressly, and it transfers the title conveyed in the execution deed to the receiver, and vests his title in the receiver for the benefit of appellee or any other creditors of the corporation.

Very similar relief was sought in the case of Harris v. Smith, 133 Ark. 250, 202 S. W. 244. It was there said: "It is insisted by appellants that the court, sitting in Sebastian County, had no jurisdiction to cancel deeds to lands in Polk County, and subject them to the payment of appellees’ claims. The first and third subdivisions of § 6060 of Kirby’s Digest provide that suits ‘for the recovery of real property or an interest therein, or for the sale of real property under a mortgage, lien or other in-cumbrance, ’ must be brought in the county where the subject matter of the action, or some part thereof, is situated. Appellees insist that because the suit was brought in Sebastian County, where part of the lands were situated, under the plain language of § 6060 of Kirby’s Digest, the Sebastian County Chancery Court acquired jurisdiction over the Polk County lands. The construction placed upon the statute by appellees would be forceful if applied to a case where all the lands, though lying in different counties, were involved in litigation between the same parties, but certainly cannot be true when applied to a case where the lands not only lie in different counties, but also involved different parties defendant.”

Further construing § 6060, Kirby’s Digest (which now appears as § 1164, C. & M. Digest), it was there said: “It seems to be well settled that if the purpose of the bill and the effect of the decree are to reach and operate upon the land itself, then it is regarded as a proceeding in rem, and, under the statute in question, is a local action, and must be brought in the county where the land is situated. Jones & McDowell & Co. v. Fletcher, 42 Ark. 422; McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762, 29 Am. St. Rep. 56.”

The decree of the Sebastian Chancery Court in that case, which canceled conveyances of real estate in Polk County, was reversed, and the cause remanded with directions to dismiss as to' the Polk County lands for the want of jurisdiction, ¡for the reason that the action was local, and not transitory.

For the same reason the decree in this case must be reversed, except that the money judgment against the corporation the right to which appears to be clear, will be affirmed. It is so ordered.

Mr. Justice McHaney dissents.


author: Humphreys, J.

text:
    Blackwell Oil & Gas Co. v. Maddux.
    Opinion delivered May 5, 1930.

      Jésse Reynolds, for appellant.

      Morrow & Willimns and Hugh Basham, for appellee.
   Humphreys, J.

This is an appeal from a judgment overruling a motion to set aside a judgment and grant appellant a new trial in the case of Geo. M. Maddux v. T. W. Flake and Mable Flake, in the circuit court of Johnson County, in which appellant was a garnishee. The Flakes, being non-residents of Arkansas, were constructively served in the original suit by publication in the Herald-Democrat, a newspaper printed and published in said county, for more than thirty days before the May, 1929, term of said court, the warning order appearing in the issues of said paper on the 21st and 28th days of March and the 4th and 11th days of April, 1929, although the proof of publication, through error, failed to show that the warning order appeared in the issue of April 11, 1929. Appellant was duly and personally served as a garnishee therein, and filed an answer admitting a contingent indebtedness of $7,400 to T. W. Flake, the contingency being that it would owe him said amount out of the proceeds of the sales of leases or of oil and gas upon certain acreage in said county when same should be sold. Relying upon the sufficiency of its answer and the deposition of Mr. Imel, its secretary, it did not again appear in the case. Appellee here— plaintiff in the original suit — filed a denial of appellant’s answer in the garnishment, alleging that the contingent indebtedness had been reduced to a certainty by the production of gas in a large daily output on said lands, and that at the time it filed its answer it was indebted to T. W. Flake in the sum of $7,400. The judgment in the original suit was rendered on May 8, 1929, and it was recited therein that the cause was heard upon the issues joined by the pleadings and oral and documentary evidence, from which the court found that T. W. Flake owed appellee herein $8,394.35, and that appellant herein owed T. W. Flake $7,400, for which amount judgment was rendered against appellant in favor of appellee. After the adjournment of the May, 3929, term of said court appellant filed the motion in the instant case to set aside said judgment and grant it a new trial, the grounds alleged being that the court acquired no jurisdiction over the Flakes because the proof of publication of the warning order failed to show that it was published on April 3.1, 1929, and that for that reason the court was without authority to render judgment against appellant as a garnishee, and that no triable issue was made upon the answer filed by appellant, the garnishee, which would warrant the rendition of a judgment in the original case. After the. motion was filed and prior to the regular November, 1929, term of said court, appellee herein filed an amended and substituted proof of publication showing that the warning order against the Flakes was published four consecutive weeks in the Herald-Democrat on the 21st and 28th days of March and the 4th and 33th days of April.

The .instant suit, although styled a motion for a new trial in the original action, is, in fact, an independent proceeding collaterally attacking the validity of a judgment after the adjournment of the court at which same was rendered on account of a clerical omission in the proof of publication, and because no triable issue was made upon the answer of appellant, the garnishee in the original suit.

Appellant’s first contention for a reversal is that the court did not acquire jurisdiction of the parties defendant in the original suit until the proof of publication showed that the warning order appeared in four consecutive weekly publications of the Herald-Democrat.

Jurisdiction of the parties was acquired by proper publication of the duly issued warning order, and not by the proof thereof. The warning order was actually published as required by law, so the defect in the proof of publication thereof was subject to amendment so as to speak the truth, under our liberal statute allowing amendments. This court said in the case of Johnson v. Lesser, 76 Ark. 465, (quoting syllabus 1) : “Where, in a suit to foreclose a mortgage, a warning order against a. nonresident mortgagor was duly published, the failure to make proof of such publication in the manner required by statute is an irregularity that does not affect the jurisdiction, and cannot be considered in a collateral proceeding.”

We can see no good reason why the amendment correcting the proof of publication cannot be filed after, as well as before, the rendition of a judgment. In the case of Smith v. Bank of Higden, 115 Ark. 216, this court reversed the judgment of the circuit court, and remanded the cause with directions to remand the ease to the justice of the peace with directions to set aside the judgment in the original case unless it should he shown by sufficient proof that the warning order had been published the requisite number of times. We think this case is authority for the proper practice in case of a defect in a warning order which can be cured by amendment.

Appellant’s second contention for reversal of the judgment, for the reason that the answer of the garnishee was not sufficiently controverted, is without merit. Ap-pellee herein, who was plaintiff in that case, denied the allegations of the answer of the appellant herein, who was garnishee in the original case, sufficiently to present an issue for determination by the court. The issue was tried with the result that a judgment was rendered against the garnishee, the appellant herein. As appellant had been personally served, and did not lose its right of appeal except through its own neglect, we do not think it can now' successfully attack the judgment by independent suit. Its proper and only remedy was by appeal.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    McLain v. State.
    Opinion delivered May 5, 1930.

      Cochran & Arnett, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). .Appellant insists that the court should have directed a verdict in his favor on the charge of obtaining “a thing of value”— medical services — under false pretenses, and we have concluded that the contention must be sustained. There is no testimony showing any representations whatever made, false or otherwise, to either of the physicians by appellant upon his pledging with their bookkeeper the alleged forged note as collateral to secure the payment of his notes to the firm and the individual member thereon given for closing his account due them for more than the sum of the collateral note; nor any testimony whatever indicating an intention upon the part of appellant to procure the professional services of either of the physicians because of the pledging of the collateral note. Tt is no violation of the statute against obtaining personal property by false pretenses 2449, C. & M. Digest) to obtain credit or settlement of an existing account or indebtedness by such pretenses. Jamison v. State, 37 Ark. 445; Shelton v. State, 96 Ark. 237, 131 S. W. 871.

Even if it be conceded that obtaining the services of a physician by false pretenses would come within the provisions of the said statute within the meaning of the term ‘ ‘ or other valuable thing, ’ ’ and we are cited to only one authority, a case from the Supreme Court of Mississippi construing a like statute to that effect, there is no evidence showing that it was the intention of appellant to procure any such services in the future upon the pledging of the collateral note, which was for a less amount in fact than the amount of the notes it was given as collateral to secure. There was testimony showing that appellant had come to one of the physicians and procured the collateral note for collection, stating to him at the time that the makers were ready to pay it, and that he neither collected the note nor returned it, and one of the instructions of the eight first given and Avithdrawn Avas on that point allowing the jury to convict appellant if it found such to he the case, as though he had procured the note “a thing of value” by the false representation that the makers A\-ere ready to pay it. There should, of course, have been no such instruction given, and, conceding that it Avas sufficiently A\TithdraA\m by the statement to the jury that such instructions Avere not to be considered, it may nevertheless have influenced-the jury’s verdict. In any event there is no sufficient testimony in this case to support the verdict of the jury, and the judgment must he reversed, and the cause remanded for a neAV trial. It is so ordered.


text:
    Hughes Company v. Callahan.
    Opinion delivered May 5, 1930.

      Feasel d Steel, for appellant.

      McConnell d Jackson, for appellee.
   Kirby, J.,

(after stating the facts). Appellants contend that the court erred in subrogating appellee to the rights of the holder of the mortgage upon its payment by him at the request of the mortgagor, because of his accepting a release of the mortgage instead of taking an assignment thereof.

The undisputed testimony shows that he furnished the money to pay off the mortgage at the request and for the benefit of the mortgagor upon his assurance that there were no other liens or incumbrances against the land, and that his advances and payment should be secured by a first lien thereon. He was not merely a volunteer therefore in the payment of the mortgage debt, the loan having been negotiated by the mortgage debtor for the express purpose of paying it. So. Cot. Oil Co. v. Hill Cot. Co., 108 Ark. 555; Stephenson v. Grant, 168 Ark. 927; Rodman v. Sanders, 44 Ark. 514; and 37 Cyc. p. 365, note p. 473.

It is true that he might have discovered appellant's execution deed by examination of the record, but he was not culpably negligent in failing to do' so on account of the assurances given by the mortgagor; and if it had been discovered, his rights could have been protected as completely in making the loan as was intended should be done by requiring the transfer or assignment of the mortgage to him upon his payment of the mortgage debt upon the request of the mortgagor. The rights of the purchaser under the execution deed are not prejudiced by the decree allowing a subrogation of appellee to the rights of Scho'backer, the holder of the mortgage, since as against the lien of such mortgage appellant’s claim was without merit and subject thereto.

The court did not err therefore in decreeing a sub-rogation of appellee to the lien and rights of the holder of the mortgage, and a foreclosure thereof for satisfaction for the money advanced to pay off the mortgage indebtedness and the decree must be affirmed. It is so ordered.


author: McHaney, J.

text:
    Ward v. Pipkin.
    Opinion delivered May 5, 1930.

      8. 8. Hargraves, for appellant.

      Mann ■<& Harrelson, for appellee.
   McHaney, J.

This is an appeal from a decree of partition, ordering- a sale of certain real property in Forrest City, the property not being susceptible of division in kind. Appellee and his stepmother, Fannie Pipkin Ward, were the owners thereof as tenants in common, each owning a half interest. Mrs. Ward and her hus.-band, appellant, resided on the property, and appellant made certain improvements and paid certain taxes thereon during the lifetime of his wife and at her request. After her death, appellant continued to reside on the property, and this suit was brought to partition the property, all parties having any interest therein being made parties. Appellant filed a cróss-complaint, claiming that the amount spent for improvements and taxes should be a charge against the property. The court dismissed the cross-complaint, decreed a sale of the property, and that the proceeds of the sale should be distributed, first, to the payment of costs; second, on© half the remainder to appellee; and, third, the other half to be deposited in the registry of the court, “pending the appeal of IT. W. Ward from the finding of the circuit court, and then paid to the parties entitled thereto, holding under Mrs. Fannie Ward, deceased.” The case referred to in the above order is Ward v. Pipkin, 180 Ark. 855, 22 S. W. (2d) 1011. Appellant attempted to stop the sale by filing a supersedeas bond with the clerk, but the clerk refused to accept the bond and stop the sale. The property sold for $1,400.

Appellant first says his improvements and taxes paid should be a first charge against the whole property. We do not think so. These improvements were made and taxes paid without authority from appellee, and at a time when appellant and his wife were enjoying the use of the property rent free, although she owned only a half interest. In Lemly v. Works, 138 Ark. 426, 211 S. W. 362, this court quoted with approval from a note to the case of Ward v. Ward, (W. Va.) 52 Am. St. Rep. 935, the following: “That, for improvements made or services rendered by a oo-tenant, he cannot maintain any action which will result in a personal judgment against any of his fellow tenants unless he can prove an express promise to pay or such a state of circumstances that a promise should be implied, and it will not be implied either from the making of improvements or from their utility or necessity. ’ ’ There was no express promise to pay by ap-pellee, and none can be implied. Neither does the fact that the expenditures were incurred at Mrs. Ward’s request alter the situation in so far as appellee is concerned. As to what effect it may have on his right to reimbursement from Mrs. Ward’s estate, we do not decide, as that question is not before us. It is sufficient to say that appellee’s one-half interest was not burdened thereby, even though the value of the property may have been enhanced by reason thereof. Neither can there be a recovery for the taxes paid at the request of his wife. He paid certain paving taxes and the general taxes for two years. They occupied the premises for about five years. It is not shown what the rental value is, but in Patterson v. Miller, 154 Ark. 124, 241 S. W. 875, it was held that a tenant in common in possession, who has received rents enough to keep the taxes paid, is required to pay the taxes for the 'benefit of himself and co-tenants. In the absence of a showing to the contrary, it will be presumed that the rental value was sufficient to pay the taxes.

It is finally urged that the case should be reversed, because appellant attempted to supersede the judgment and stop the sale pending an appeal. We do not think so. Appellant conceded that appellee owned a half interest in the property. There was no dispute that it could not be divided in kind. Therefore appellee had an absolute right to a decree partitioning the property and ordering it sold. And, as we have already shown, appellant’s claims cannot be a lien or charge on appellee’s interest. So he was in no position to complain of a sale being had. The decree fully protected his interest, if any, in the proceeds, and his rights have not been prejudiced in any way. No claim is made that the property-sold for an inadequate price.

The decree is accordingly affirmed.


author: Hart, C. J., Hart, O. J.,

text:
    American Investment Company v. Gleason.
    Opinion delivered April 28, 1930.

      Rose, Hemingway, Cantrell d Loughborough, for appellant.

      M. F. Elms and Joseph Morrison, for appellees:
   Hart, C. J.,

(after stating the facts). 1 The practice in this State is that, where a defendant- has been constructively summoned seeks a new trial under § 6266 of Crawford & Moses’ Digest, he cannot have the judgment or decree vacated on motion, but it-will remain until the case is retried, to be then confirmed, modified, or set aside as the evidence introduced may warrant. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093; Moreland v. Youngblood, 157 Ark. 86, 247 S. W. 385; and Horn v. Hull, 169 Ark. 463, 275 S. W. 905.

This brings us to a consideration of whether the evidence introduced in support of the motion was sufficient to set aside the original decree in favor of appellee. This question largely depends upon whether the description in the original mortgage given by the Prange Brothers to John C. Gleason was so vague and indefinite as to be held void for uncertainty.

The general rule in this State is that the description in a deed or mortgage is not to be held void for uncertainty if, by any reasonable construction, it can be made available. When a description of the land as given in the instrument is doubtful, the courts in their endeavor to arrive at its -meaning should assume the position.of the parties. The circumstances of the transaction should be carefully considered, and in the light of these circumstances the mortgage should be read and interpreted. Walker v. David, 68 Ark. 544, 60 S. W. 418; and Scott v. Dunkel Box & Lumber Co., 106 Ark. 83, 152 S. W. 1025.

In Wells v. Moore, 163 Ark. 542, 260 S. W. 411, the courts said that all the law requires is that the general description of the land contained in the instrument should furnish the means of its definite location and identification. Again, in Snyder v. Bridewell, 167 Ark. 8, 267 S. W. 561, the court said that the general rule is that the sufficiency of a description to pass title to land under a deed or mortgage is that it shall be described with sufficient certainty to identify it. The court said further that the description in the deed must refer to something tangible by which the land can be located.

This is in application of the maxim that that is certain which can be made certain. In the application of the rule, it is settled in this State that a deed or mortgage cannot be declared void for uncertainty if it is possible, by any reasonable rule of construction, to ascertain from the description, aided by extrinsic evidence, what property is intended to be conveyed. In short, the office of the description in a deed or mortgage is not to identify the land, but to furnish the means of identification.

The description in the mortgage to Gleason is set out in our statement of facts, and need not be repeated here. It is the contention of counsel for appellant that it plainly conveys the west half of section '21 and the northeast quarter of section 29, and an undivided one-half interest in the Prange and Tindall Pumping Plant and Canal with all lands, machinery, and fixtures belonging thereto. In other words, they contend that the description itself shows that the mortgagors intended to convey certain lands in sections 21 and 29, and their one-half interest in a pumping plant and canal located in section 15. On the other hand, it is the contention of counsel for appellee, and the chancery court so found, that the description in the mortgage, when read in the light of the circumstances surrounding the parties at the time the conveyance was made, shows that the mortgagors intended to convey to the mortgagee certain lands in sections 21, 29 and 15, and also their undivided one-half interest in a pumping and canal plant located thereon.

We think the construction placed upon the mortgage by the chancery court more naturally follows the description contained in the mortgage itself, when read in the light of the attendant circumstances. It will be remembered that according to the testimony of the engineer the pumping plant is situated in section 15, and the canal extends down through section 15 into section 21, which is also conceded to be embraced in the mortgage. It will be noticed, that the mortgage describes an undivided one-half interest in the Prange and Tindall Pumping Plant and Canal. This would indicate a reason for describing the pumping plant and canal. If the mortgagors had owned the whole of the pumping plant and canal, this would pass with the description of the lands themselves. ■But, inasmuch as they only owned an undivided one-half interest, it was necessary to describe the pumping plant and canal. Then in addition “all lands (about 200 acres in section 15-3-2) ” are embraced in the mortgage. The evidence shows that all the lands owned by the mortgagors in section 15 was 200 acres, and it naturally follows that the describing of the lands by quantity conveyed the whole of the tract owned by the mortgagors to the mortgagee. Otherwise, no useful purpose would have been served by describing the quantity of the lands. Of course, quantity does not control when it is contradicted by the particular description. But, in the present case, it is not contradictory, but is rather explanatory of the property intended to be embraced in the mortgage.

In Wilson v. Boyce, 92 U. S. 320, there was a statutory mortgage securing bonds issued by the State of Missouri to a railroad company, which bonds, it was enacted, ‘ ‘ shall constitute a first lien and mortgage upon the railroad and property of the several companies so receiving them, ’ ’ etc. The question was whether certain lands which did not constitute the railroad or any part thereof, but which were owned by the railroad company, should be considered to be embraced in the mortgage. The tracks of the railroad were not located upon the lands in question, nor were they used in connection with the railroad. The court said that the description, “the railroad and property of the several companies so receiving them,” embraced the lands, and the word “property,” as used in the statute, created a valid lien on the lands belonging to the railroad, but which were not used in connection with it. The court said: ‘ ‘ The generality of its language forms no objection to the validity of the mortgage. A deed ‘of all my estate’ is sufficient. 'So a deed ‘of all my lands wherever situated’ is good to pass title. Johnson v. DeLancy, 4 Cow. 427; Pond v. Berg, 10 Paige, 140; 1 Atk. on Conv. 2. A mortgage ‘of all my property’ like the one we are considering, is sufficient to transfer title.”

In the present case, wo are of the opinion that the chancery court rightly held that, when the description in 1he mortgage was read in the light of the circumstances surrounding the contracting parties, it was the intention to include in the mortgage the undivided one-lialf interest of the mortgagors in the pumping plant and canal, and, in addition, all the lands owned by them in section 15. If they had intended merely to mortgage their undivided one-lialf interest in the pumping plant and canal, they would likely have so stated, and would not have described all of the land owned by them in section 15. Therefore the decree will be affirmed.

Hart, O. J.,

(on rehearing). Counsel for appellant earnestly insist that a rehearing should be granted because the description in the mortgage brings this case within the principles of law decided in Freed v. Brown, 41 Ark. 495, and other decisions of this court, to the effect that a description in a conveyance of a part of a particular tract of land of a larger tract, containing a designated quantity of acres, is void for uncertainty. The reason is that in such cases the calls in the deed do not refer to anything 'by which the land could be located, and parol evidence cannot import terms into an instrument. It can only be used to explain or show the things to which the instrument refers by the terms it uses so as to make the terms certain when understood. For that reason, all instruments of that character are void upon their face for uncertainty.

We have set forth the description of the mortgaged lands in our former opinion as contained in the mortgage to Gleason, and do not deem it necessary to set them out again in this opinion. Beference to the description will show that it does not fall within the class of cases just referred to, but rather comes within Little Rock and Ft. Smith Ry. Co. v. Evins, 76 Ark. 261, 88 S. W. 992, and Walker v. David, 68 Ark. 544, 60 S. W. 418.

In the case first cited, it was admitted by the parties that the tract in controversy contained 7-19/100 acres. Hence there was a call within the deed by means of which’ by the aid of parol evidence the land could be identified or located. In the latter case, there was also a call within the deed showing the quantity of lands conveyed, and the proof was that the grantor owned only that amount of land in the section under consideration and owned no other land in that section. Hence the calls in the deed, aided by parol evidence, were sufficient to identify and locate the land.

So here it was admitted by the parties that 200 acres were, at the time of the execution and delivery of the mortgage to Gleason, all the lands in section 15, township 3, south of range 2 west, Arkansas County, which were owned by the mortgagors. Hence, under the cases above cited, the description was sufficient. If the mortgagors had owned a greater quantity of land than that described in the mortgage in section 15, the cases cited by appellant would control.

The most serious contention in our mind is whether or not we were correct in holding that the description of the 200 acres in section 15-3-2 referred to the 200 acres of land owned by the mortgagors in that section or was merely intended to convey the right-of-way for the canal 'owned by the Prang- and Tindall Pumping Plant and Canal. After a careful consideration of the matter, we adhere to our original view on this point. There is a plat of the pumping plant and canal in the-transcript. The map shows that the pumping plant is located’in the northwest corner of said section 15 on White River. It extends in a southwesterly direction through the northwest quarter of section 15 into section 16. Thence, it runs in a southwesterly direction to the center of section 16. The canal then extends southward through the eastern half of section 21 but close to the western boundary thereof. It enters section 28 near the western boundary of the east half of section 21 and extends through section 28 in a southwesterly direction.

Now, it will be noted that the description in the mortgage is the northwest quarter of section 29 which is the 160 acres west of the north half of section 28. Then the mortgage contains a description as follows: “West half of section 21. This is the 320 acres west of the canal which runs through the east half of section 21.” It will be noted that the description is of a one-half interest in the. Prang- and Tindall Pumping Plant and Canal, with all lands, (about 200 acres, in section 15-3-2), machinery and fixtures thereto belonging.

Now the evidence shows that nothing- like this amount of land would have been required as a right-of-way for the canal. It is conceded that 8 or 9 acres would have been sufficient for that purpose. Therefore, we think that the expression “all lands, about 200 acres,” in connection with the agreement that 200 acres was all the land owned by the mortgagors in section 15, shows that the mortg'agors intended to convey the 200 acres of land and in addition thereto their one-half interest in the pumping plant and canal. If, as contended by counsel for appellant, they had merely intended to convey the right-of-way for the canal, it would have been just as necessary to have done this by proper description through the other lands as it would have been through the lands in section 15. It is shown that most of the 200 aeres-owned by the mortgagors in section 15 were not adjacent to the canal, and were not used as a part of its right-of-way, and the use of the phrase “all lands,” etc., indicates that it was intended to embrace in the mortgage all the lands owned by the mortgagors in section 15, instead of merely those necessary for a right-of-way for the canal. Therefore the motion for rehearing will be denied.


text:
    Thomas v. Arkansas State Fair Association.
    Opinion delivered May 5, 1930.

      Philip MgNemer, for appellant.

      A. L. Botenberry, for appellee.
   McHaney, J.

In 1924, -appellant signed a subscription agreement for the- purchase of $250 of the capital stock of appellee. The subscription agreement provided that the amount might be paid in installments, and that upon full payment off the purchase price, “the Fair Association will issue and deliver to the undersigned the number of shares hereby subscribed for, which shall be fully -paid and nonassessable.” Appellant, either at that time or later paid $50 which was credited thereon leaving a balance of $200. On February 14, 1925, he executed and delivered to appellee his promissory note for such balance, payable October 1, 1925, with interest from date at 8 per cent, to maturity and thereafter at 10 per cent. No part of this note has ever been paid, and forms the basis for this- litigation. Judgment was rendered against appellant in the municipal court and in the circuit court on appeal.

The contention relied upon here, as also in the circuit court, is that the note is void because given in payment for stock in a corporation, as being in violation of § 8, art. 12, Const. 1874, which provides: “No private corporation shall issue stocks or bonds, except for money or property actually received or labor done,” etc. Our cases, Bank of Commerce v. Goolsby, 129 Ark. 146, 196 S. W. 803; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017; Bank of Manila v. Wallace, 177 Ark. 190, 5 S. W. (2d) 937; Park v. Bank of Locksburg, 178 Ark. 669, 11 S. W. (2d) 483; Ellis v. Jonesboro Trust Co., 179 Ark. 615, 17 S. W. (2d) 324; and Taylor v. Gordon, 180 Ark. 753, 22 S. W. (2d) 561, are cited to sustain the contention. The gist of the rule as stated in all these cases is that a note given to a corporation in payment of its capital stock is void, except in the hands of an innocent purchaser. However, we are of the opinion that neither the section of the Constitution above quoted, nor the rule announced toy this court in the cases above cited have any application to the facts in this case. The note sued on here was given, not in payment of stock of appellee, but, as evidence of the (balance due on the subscription agreement. It was specifically agreed that the stock would be issued and delivered only upon full payment of the amount subscribed. Appellant did not purchase stock, and appellee did not sell him stock. He signed an agreement which bound him to pay certain moneys at a certain time, compliance with which entitled him to a certain amount of appellee’s stock. Such subscription agreements have been held valid by this court. Snodgrass v. Zander & Co., 106 Ark. 462, 154 S. W. 212; Nowlin v. Memphis Packing Corp., 161 Ark. 294, 255 S. W. 1092; Harrington v. Citizens’ Inv. & Sec. Co., 160 Ark. 320, 254 S. W. 831. In the Nowlin case supra, the court said: “It is true, as contended 'by counsel for the plaintiff, that parties may make a valid preliminary stock subscription contract which will ¡be enforced according to its terms, just as other contracts are enforced. * * * It is also true that, like other contracts, an agreement to take shares in the capital stock of a corporation may depend upon a condition precedent or subsequent, just as the parties may agree upon, and that they are bound to perform their contract according to their intention as it may appear from the language of the contract,” citing cases!

The prohibition of the Constitution is directed against the issuance of stocks or bonds by private corporations except for money, etc. “No private corporation shall issue stocks or bonds except for money, ’ ’ etc. The corporation here has not issued appellant any stock, and is not g*oing to do so except for money. This is the only question presented by the briefs.

The judgment of the circuit court is correct, and must be affirmed.


author: Butler, J.

text:
    Saxon v. Arkansas State Fair Association.
    Opinion delivered May 5, 1930.

      Barber & Henry and Troy W. Lewis, for appellant.

      Dillon S Robinson, for appellee.
   Butler, J.

Appellee brought suit in the Pulaski Circuit Court against appellant, its cause of action being based upon the following instrument.

“$300,000 Arkansas State Fair Association $300,000

“The undersigned hereby subscribes for 500 shares of the capital stock of the Arkansas State Fair Association of Arkansas, of a total par value of $1,000. He will pay this amount to the Fair Association in the amounts and on the dates following:

One-half in 1924 One-fourth in 1925 One-fourth in 1926

$.......... is herewith; $.......... by May 15; $..........by May 15;

$..........by June 15; $1,000 by June 15; $..........by June 15;

$.......... by July 15; $..........by July 15; $..........‘by July 15;

“Immediately upon the full payment of the purchase price, the Fair Association will issue and deliver to the undersigned the number'of shares hereby subscribed for, which shall be fully paid and non-assessable.

NO PROMISES, REPRESENTATIONS, AGREEMENTS OR CONDITIONS HAVE BEEN MADE OR AGREED TO WHICH ARE NOT FULLY STATED HEREIN.

“Little Bock, Arkansas, 5-12-1924.

“Dr. B. L. Saxon.”

In the court below it was agreed that appellant, defendant there, signed the above instrument, and that the appellee is a corporation organized under § 1796, C. & M. Digest, as a fair association with an authorized capital stock of $300,000, divided into 15,000 shares of $2 each par value. The incorporators made application to the Blue Sky Department of the Arkansas Bailroad Commission for a permit to sell its stock before offering the same for sale to the public, and was informed by the Commission that no permit was necessary, and none was issued. Each year since the organization of the corporation, Arkansas Fair Association, it has conducted a fair at Little Bock where livestock and farm products, agricultural and other machinery, and merchandise of merchants and dealers in other commodities have been shown, and the usual amusements, such as horse races, automobile races, Ferris wheels, etc., are conducted as a part of the fair. Entrance fees were charged to the public for admission, and space fees to those who desired to exhibit their goods, wares and merchandise and concession fees charged those who exhibited and disposed off goods, wares and merchandise to the assembled public who had paid to enter the fair grounds as spectators. From the money derived in this manner the association pays its current expenses, the excess cash, if any, to be expended by the board of directors of the association, but that no such excess cash had ever accumulated.

The articles of incorporation was introduced in evidence which declared the general nature of the business proposed to be transacted by the corporation was the holding of a periodical State fair in or near Little Rock, at which was to be shown the natural agricultural, mechanical and other products olf the State, together -with all such other exhibits of whatever kind or character as would tend to aid the advancement, progress and prosperity of the State. As incident to this purpose, the charter empowered the corporation to acquire collections of the products shown for the purchase or sale of real estate and personal property, for the erection of such buildings as would be necessary for the conduct olf its operations, for making contracts, borrowing or lending money, etc., and further provided, “no dividend shall ever be declared or paid by the corporation, but all profits accruing and resulting- from the conduct of its business or affairs shall be retained by the corporation, and be permanently employed in the enlargement or development of the enterprise. ’ ’

First. It is the contention of appellant that the contract sued on is void under § 8, article 12, of the 'Constitution of this State which provided that no private corporation shall issue stocks or bonds except for money or property actually received or laboí done and, second, that the transaction involved was in violation of § 8, of act 242 of the Acts of 1915, (§ 757, C. & M. Digest), known as the “Bine Sky Law.”

1. The answer to the first contention is that the instrument sued on is not a promissory note for the purchase of stock issued, ¡but is a contract for the purchase of stock, payment to be made in the amount designated, and when such payment has 'been made the stock subscribed was to be issued and delivered. As this is the nature of the contract involved in this suit, it should be enforced according to its terms. This feature of this case is ruled by the opinion in Thomas v. Ark. State Fair Assn., ante p. 748, to which we refer for further discussion of the question here presented, and for the authorities to support our view.

2. Sections 1796 and 1797, under which appellee was organized, provides: “That agricultural and mechanical fair associations and other associations of a public nature and designed to promote the public good, may be constituted bodies politic and corporate in the manner now provided by law for ‘corporations for manufacturing and other lawful business, ’ and the capital stock may be divided and held in shares of two dollars each; no profits or dividends shall ever be declared or paid under this act; provided, dividends may be paid to the amount of money paid in by the stockholders on their respective shares.

“This act shall not be construed to prohibit such associations from being chartered and incorporated with the powers and privileges, and in the manner now provided by law. ’ ’

The main idea in the formation of agricultural and mechanical fairs is to give object lessons to the people of new methods in the preparation of the soil, fertilization, cultivation of crops, and the use of modern machinery by which interest might be stimulated in agricultural pursuits and means and methods inculcated so that the toil of the farm might be lessened, and the rewards of labor increased. It is recognized that agriculture is becoming unremunerative, and, even with an adequate return on his investment and for his labor, the- farmer is beset by many difficulties. When to these are added the small returns received by him, the agricultural situation is rendered most acute, and produces a threat which gives great uneasiness and the exodus from the farm has been notable within the last decade, so much so as to give general concern.

Associations, such as that in the instant case, have been organized from purely patriotic motives for the purpose of educating the farmer to the point where he may appreciate the dignity and beauty of his calling, and also encourage the use of modern methods in the operation of his farm and the application of business principles, by which his home may be beautified and his business rendered profitable and his labor lessened; the hope being that, when these ends are accomplished, the rural life and activities which have meant so much in the past and, in the opinion of many, are the nation’is hope for the future, may be preserved.

The appellee association was not used for pecuniary gain, but exclusively for the purpose above stated, and, therefore, is both educational and benevolent, and as such is not within the purview of § 757, C. & M. Digest, by which a permit or certificate to sell its stock is required and must be obtained, but comes under clause E of § 752 of said Digest, which exempts from the requirements of § 757 “securities of any domestic corporation organized without capital stock and not for pecuniary gain, but exclusively for educational, benevolent, charitable or re-formatorj7' purposes.”

While conceding that appellee association “is quasi educational in nature,” appellant insists, because of the use of the wurds “exclusively educational” in paragraph E of § 752 supra, appellee association does not come within the exception, for, in addition to the exhibits, horse racing and harmless amusements are engaged in as a part of the fair. These amusements no more detract from the exclusively educational nature of the association than do the swings and playgrounds in the school yard for the use of the children at stated intervals render; a public school not ‘ ‘ exclusively educational. ’’ These are but incidents to the main purpose, and in aid of it, and it might be said that a certain amount of amusements are necessary in any educational enterprise. Since fairs are created to bring together those engaged in agricultural pursuits, stock raising, manufacturing farm implements, etc., so they may better discuss conditions and improve themselves in matters of farming and stock raising, and the amusement features are but to afford periods of relaxation. It is our opinion that the appellee association falls within the exemption of the statute, and may be said to be exclusively educational within its meaning, and therefore no permit was needed for the sale of its stock.

We think the holding of the court below was correct, and its judgment is affirmed.


author: Hart, C. J.

text:
    Bailey v. Runyan.
    Opinion delivered May 12, 1930.

      McConnell é Jackson, for appellant.

      Feazel é Steel, for appellee.
   Hart, C. J.

(After stating the facts). It is first sought to reverse the judgment on the ground that the circuit court did not have jurisdiction to try the case. This court has held that an infant’s contract for the purchase of an automobile is void and unenforceable, but that relief may be had at-law as well as in equity. Commercial Credit Co. v. Blanks Motor Co., 174 Ark. 274, 294 S. W. 999.

In the second place, the plaintiff consented to the circuit court trying the case by not moving to retrans-fer it to the chancery court. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833.

The circuit court recognized that the contract of a minor for the purchase of an automobile was void and unenforceable, and so instructed the jury. The right of the defendant to a verdict was predicated upon a finding by the jury that the contract of purchase and sale of the automobile was made by the defendant with the mother of Chester Bailey. The jury was expressly instructed that, if it should find that the contract of sale for the ear was made by the defendant with Chester Bailey, it should find for the plaintiff. The evidence in behalf of the defendant warranted the jury in finding that the contract was made by Runyan with the mother of Chester Bailey, and not with him. Hence the evidence was legally sufficient to support the verdict.

It is next insisted that the judgment should be reversed because the court erred in not allowing- Mrs. Sallie Young, the sister and guardian of Chester Bailey, to testify that the money with which he paid for the automobile carne from their father’s estate. The court held that this evidence was immaterial. We think the court was right in its ruling for two reasons. In the first place, according to the testimony of Mrs. Young-, her mother had received a part of the money left by their father, and it may he that the money with which she furnished her son to purchase the automobile was her part of the estate. In any event, she was liable to her son for any misappropriation of the funds belonging to her husband’s estate by herself. It was not attempted to show that Runyan knew that the money used in paying for the automobile did not belong to Mrs. Bailey. According to his testimony, he made the contract with Mrs. Bailey, and his agent testified that Mrs. Bailey told him when she bought the car from him that she would send her son with the money to pay the balance of the purchase price the next morning. The right of the defendant to a verdict was predicated solely upon a finding- by the jury that Runyan had sold the automobile to Mrs. Bailey, and not to her minor son. In this view of the matter, the court correctly held that it is immaterial where Mrs. Bailey got the money with which she paid for the automobile.

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


text:
    Turk v. Sweeten.
    Opinion delivered May 12, 1930.

      Sidney L. Graham and Hardin ■<& Barton, for appellant.

      D. W. Bryan and A. N. Hill, for appellee.
   Hart, C. J.

Appellant prosecutes this appeal to reverse a judgment against him for damages for negligently injuring appellee while in his employment.

T. W. Sweeten was the principal witness for himself. According to his testimony, at the time he was injured, he was working for the Turk Construction Company, and his occupation was cleaning up the machinery at night for the next day’s work. Appellant was. engaged in road construction work, and appellee was employed to clean and grease the machinery, and act as watchman for it during the night. On the night in question, appellee had brought his young son with him to help clean the machinery, and finished his work about 11 o’clock. He went to a place on the premises where there was a ten-gallon can of gasoline and told his boy to hold the lantern while he poured some out for the purpose of washing the grease off his hands. Appellee opened up the ten-gallon can, and was pouring gasoline into another can when the gasoline caught on fire and severely burned him before it could be put out. Appel-lee had been told to bring his coal oil lantern which he used in his work because one of the electric lanterns owned by appellant was out of fix. The lighted kerosene lantern was three or four feet from the can of gasoline when appellee was pouring it out. Appellee was a farmer, and had seen other employees of the company wash the grease off of their hands with gasoline. He had to use a hammer to knock the top off of the can of gasoline -so that he could pour it out. Appel-lee knew that the ten-gallon can of gasoline was for emergency use in running- the engines belonging to the appellant. No one had told him to use the gasoline to wash his hands. Appellee had been accustomed to driving an automobile for four or five years. lie was thirty-nine years of age at the time of the accident.

The court erred in not directing a verdict for the appellant. In the first place, it may be said that the appellee’s own testimony shows that there was no negligence on the part of appellant. The injury complained of was the result of appellee’s own act for his own benefit or convenience, and not in the line of his duty as an employee of appellant. Appellee was employed to clean the machinery at night and to guard it. It was not necessary for him to use gasoline in his work. As a master, the appellant owed no duty to the appellee as a servant while acting- outside of the scope of his employment to instruct and warn him of the dangers incident to the use of gasoline but which were not incident to the work of the appellee. This rule is so well established, and of such universal application, that no citation of authority is necessary to support it. It will be remembered that the gasoline was not escaping, and there was no need for appellee to have opened the can at all. Hence there was no duty on the part of appellant to warn or instruct.

In the second place, the court should have directed a verdict in favor of appellant on the ground that appel-lee, as a matter of law, was-guilty of contributory negligence. Appellee was a man of mature years, and had been driving an automobile for four or five years. It is a matter of common knowledge that gasoline becomes volatile when exposed to the air and is easily ignited when it comes into contact with a flame. Gibson Oil Co. v. Sherry, 172 Ark. 947. Appellee was using a kerosene lantern in the" discharge of his duties, and when he knocked the top off of the gasoline can and started to pour the gasoline out into another can within three or four feet of the lighted lantern, he is charged with knowledge that an explosion would likely occur which would burn him. He is lucky that his burns were only temporary.

It follows that the judgment must be reversed; and inasmuch as the cause of action has been fully developed, it will be dismissed.


text:
    Maryland Casualty Company v. People's Lumber & Supply Company.
    Opinion delivered May 12, 1930.

      Cockrill é Armistead and Harry T. Wooldridge, for appellant.

      Poff & Smith, for appellee.
   Smith, J.

Appellee brought this suit to recover from J. T. Carr and the Maryland Casualty Company, hereinafter referred to as the company, the sum of $307.90, and interest, and for its cause of action alleged that Carr entered into a contract with the Arkansas Highway Commission to construct a certain road, and that the company signed the contractor’s bond as surety, guaranteeing, among other things, that the said contractor would pay all bids for material and labor entering* into the construction of the road.

It was alleged that Carr, the principal contractor, sublet to J. J. Harrison a portion of the work, and that pursuant to his subcontract Harrison, hauled gravel, and that for each load of the gravel he was given, by a representative of the Highway Commission, a ticket evidencing the fact that a load of gravel had been placed in the road and the price payable therefor. To secure the money necessary to -complete his subcontract, Harrison sold and delivered these tickets to appellee, whose representative presented them to Carr for payment, and when payment was refused this suit was brought. Harrison was made a party defendant, and he filed a separate answer and cross-complaint against Carr and the. surety company, in which he admitted the allegations of appel-lee’s complaint, and alleged that Carr had refused to make settlement and payments to him as his subcontract required, and that he had obtained advances from appel-lee. That Carr had instructed him to borrow money to continue the work and to pledge and assign his claim for labor done, and he transferred and assigned his claim to appellee in the sum sued for, which was due for hauling gravel and placing same upon the road, and, evidencing this intention, he delivered to appellee the tickets of the checker showing the number of loads of gravel hauled with the price therefor, and he alleged that, “I authorize the said People’s Lumber & Supply Company, in my name or its name, to sue for and collect and obtain payment of said claim.”

A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action for the following reasons: “(1) The assignment alleged to have been made by the defendant, J. J. Harrison, to the plaintiff herein, if any so made, was oral, and not evidenced by any writing. (2) The gravel tickets mentioned in said amended and substituted complaint are mere evidences of the amount of gravel hauled by the defendant, J. T. Carr, and represent neither money nor property, and are therefore not assignable, under § 475 of Crawford & Moses’ Digest of the Statutes of Arkansas.”

The demurrer was overruled, and, Carr and the company declining to plead further, a judgment was rendered against them, from which the company only has appealed.

It is insisted, for the reversal of the judgment appealed from, that the instant case is similar to and is controlled by the opinion in the case of Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6, but we do not think so.

TVe do not consider or decide whether the gravel tickets were, assignable instruments or not. They at least evidenced the quantity of gravel hauled, and the sum due on that account, and it was this sum — the total thereof —which Harrison assigned to appellee, and both the assignor and the assignee have sued. This is the controlling distinction between the instant case and the Gloode case, which was a suit upon an oral assignment of an open account, which we said could not be maintained without making the assignor a party. Here the assignor is a party.

It is not questioned that Harrison’s claim is covered by the bond of the surety company, and both the assignor and the assignee unite in the suit to enforce this claim, against the bond. The case of American Bank & Trust Co. v. Langston, 180 Ark. 643, 22 S. W. (2d) 381, cited by appellant, has therefore no application.

The demurrer was properly overruled, and the judgment must be affirmed, and it is so ordered.