text:
    Ark-Ash Lumber Company v. Pride & Fairley.
    Opinion delivered January 21, 1924.
    1. Highways — construction of act. — In act No. 18, Ex. Sess. 1923, entitled “An act to enable certain road improvement districts to receive Federal aid,” etc., and providing that it should apply only to counties having- between 45,000 and 54,000 inhabitants, the restriction as to population must be deemed to relate to the last Federal census.
    2. Constitutional law — construction of statutes. — Where the language of a statute is ambiguous and open to two constructions, one of which will render it valid and the other invalid, the court will adopt the former construction.
    3. Evidence — governor’s proclamation — judicial notice. — Judicial notice is taken of the Governor’s proclamation calling an extraordinary session of the General Assembly.
    4. Statutes — special act — notice.—Where .less than 30 days intervened between the Governor’s proclamation for an extraordinary session of the Legislature and the introduction of a- local bill, noncompliance with Const. 1874, art. 5, § 26, requiring 30 days notice of such a bill, affirmatively appears.
    5. Statutes — general and special acts. — The inquiry as to whether a statute is general or special is not restricted to its form, but reaches to its necessary effect, regardless of its form.
    6. Statutes — local act. — Acts Ex. Sess. 1923, No. 18, to enable road districts in counties between 45,000- and 54,000 population to receive Federal aid, held a local act, as it applied only to Mississippi County.
    Appeal from Mississippi Chancery Court, Osceola District; J. M. Fuirell, Chancellor;
    reversed.

      E. E. Alexander, for appellants.
    1. The bill applies to counties having a population of between 45,000 and -54,000, and to no others, a limitation which makes of it a special or local bill, and it is therefore unconstitutional and void. It is a special or local bill also for the further reason that it applies only to road districts in the particular counties having the requisite population to which Federal aid has heretofore been allotted, but which cannot receive such aid without additional legislation.
    2. The act provides no means of determining the population. We think the Federal census is competent for that purpose, but certainly the school census taken annually for the purpose of ascertaining the school population is not competent evidence in an inquiry of this nature.

      J. T. Cost on, for appellees.
    1. As to ascertainment of the population the act, we think, places that -duty on the State Highway Engineer or the Board of Commissioners. See § 2 of the act. If an official is authorized to do a certain thing only in a certain contingency, it will be presumed, if he does that thing, that the contingency happened or existed. 132 S. W. 224; 199 S. W. 120; 201 S. W. 514. It was not the intention of the Legislature to leave the question of population open for all time, so that any property owner could bring suit at any time in the future to cancel the bonds and thrust upon the bondholders the burden of showing that the population was between 45,000 and 54,000. Such a construction could not be given the act. 92 IT. S. 488-489. The evidence on the question of population in this case was made as nearly conclusive as it could be made without taking an actual census, and it was not essential to take a census. 40 Ark. 296. As to competency of the evidence introduced, see 65 Ark. 284.
    2. The act involved here is not a special or local bill. It is general in its application to all counties that come within its provisions. 86 S. W. 845, 846.
   McCulloch, C. J.

The questions involved in this case relate to the validity of a statute enacted by the G-eneral Assembly at the extraordinary session which convened on September 24, 1923 (Acts Special Session 1923, p. 126), the caption of which clearly states the purpose and scope of the statute, and reads as follows: “An act to enable certain road improvement districts to receive Federal aid, make additional assessments of benefits, issue and sell additional bonds, construct, improve and maintain the public roads and bridges in said districts, and applying only to counties having a population of between 45,000 and1 54,000, and for other purposes.” '

Section 12 of the statute reads as follows:

“Section 12. Be it further enacted: That this act shall be construed as supplemental to and in aid of existing laws, and not as a repeal thereof, except in so far as the same conflict with this act; and, in case any section or clause of this act is held to be unconstitutional, it shall not invalidate any other nart of the act. Provided, however, that this act shall apply only to counties having between 45,000 and 54,000 inhabitants.”

The Osceola & Little River Road Improvement District No. 1, which was organized in Mississippi County under general statutes (Crawford & Moses’ Digest, § 5399 et seq.), is seeking to proceed under the provisions of the statute above referred to, .and the owners of certain real property in the district- attempt in this action to prevent such proceeding, on the ground that the statute is unconstitutional.

It -appears that the population of Mississippi County, according to the Federal census taken and promulgated during the year 1920, was 47,320, and, according to that census, the population of no other county in the State was between 45,000 and 54,000. In the trial of this case below, each party to the controversy introduced testimony tending to show what the population of Mississippi County was at the time of -the enactment of this statute. Appellants undertook to show, by the opinion of witnesses who claimed to have information oh the subject, that the population of the county had diminished since the taking of -the Federal census in the year 1920 below 45,000; and the testimony introduced by appellees tended to show that the population of the county had not diminished, but was as high or higher in numbers than at the taking of the Federal census. Appellees also introduced a resolution passed by the board of commissioners of the road district, declaring a finding that the population of the county was between 45,000 -and 54,000. Appellees also introduced a certificate from the State Highway Engineer authorizing the commissioners to proceed under the. statute referred to.

It is the contention of appellants that the statute is void for ■ uncertainty, in that it fails to provide any method of ascertaining the population of the county. The contention of appellees is that the act impliedly authorizes either the State Highway Engineer or the board of commissioners of a road district in any county to determine whether Die population of the county is such as to authorize proceedings under this statute. We do not agree, with either of these contentions. Certainly there is nothing in the statute which, either expressly or by implication, authorizes the Highway Engineer to determine the population of a county. It is contended by counsel for appellees that the language of § 2 of the statute, which provides that, when the State Highway Engineer files with the board of commissioners a certificate stating that Federal aid was previously allotted to the district, but. that said district would not receive Federal aid but for this act, “the board of such district shall then have jurisdiction and power to proceed under this act,” necessarily confers authority upon the Highway Engineer or the board to determine the population of the county. We do not think that this is the correct interpretation of the language referred to, for the section does not deal, even remotely, with the' question of the ascertainment of the particular locality where the terms of the statute apply. This language relates merely to a certificate of the Highway Engineer concerning a matter which comes strictly within his jurisdiction, i. e., the question of allotment of Federal aid, and to the duty of the commissioners in the county where the population is such as to make the statute applicable to proceed upon the certificate of the Highway Engineer. Our conclusion, in the interpretation of the statute, is that, there being no provision made for the ascertainment of the population to determine the application of the statute, and, since the statute is obviously .one to take immediate effect, the restriction in regard to population must be deemed to relate to the last Federal census, which is the only authoritative ascertainment of population. It is our duty, under well-known canons of construction, where the language of a statute is in doubt and it is reasonably open to two constructions, one of which will fender it valid and the other will render it invalid, to adopt that construction which will make the statute valid; .and, following this rule, we should assume that the Legislature intended, rather than to render the statute void for uncertainty,- to adopt the one and only definite means of ascertaining the population of the county to which the statute is to apply. This renders the statute definite and certain.

The next contention is that the statute is special and local in its application, and is void because notice of its introduction was not published in accordance with the requirement of the Constitution, which provides that no local or special bills shall be passed “unless notice of the intention to apply therefor shall have been published in the locality where the matter or the thing to be affected may be situated, which notice shall be at least thirty days prior to the introduction into the General Assembly of such bill.” Constitution 1874, art. 5, § 26. If the statute in question be held to be special, or local, within the meaning of the Constitution, then the enactment is void for the reason that the notice was not given, and1 we cannot, under the circumstances, indulge any presumption that the notice was given.

The Governor’s proclamation (of which we take judicial notice), calling the extraordinary session of the General Assembly, was dated and filed with the Secretary of State on September 8, 1923, and the bill for the statute now under consideration was introduced in the Senate on October 5, 1923, which was less than thirty days after the session was called, and there was not sufficient time within which to publish the notice. There is therefore no presumption that notice was given under these circumstances, but, on the contrary, the time between the calling of the session and the introduction of the bill in question being less than thirty days, it affirmatively appears that the provision of the Constitution could not have been complied with and that the statute is void. Booe v. Road Improvement District, 141 Ark. 140.

We proceed, then, to determine the nature of this legislation — whether or not it is special or local within the meaning of the Constitution. The statute is general in form, otherwise than as to the designation that its application shall be limited to counties having a population between 45,000 and 54,000. It applies, in fact, only to Mississippi County, for, from an examination of the census report published by .authority, it is seen that Mississippi County is the only county in the State which has a population between 45,000 and 54,000. The act was not prospective in its nature, but applies only to road districts to which Federal aid had been allotted in counties which, at the time of the passage of the act, had a population within the prescribed limits. The rule announced lpy nearly all of the authorities is that, in a judicial determination of the question as to the nature of a statute, whether general or special, the inquiry is not restricted to the form of the statute, but it reaches to a consideration of the necessary effect of the statute, regardless of its form. This doctrine is stated in 25 R. C. L., p. 815, as follows:

“In determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form or phraseology, because otherwise prohibitions of the fundamental law against special legislation would be nugatory.”

In another text-book the rule for determining the distinction between a special act and a general law is stated as follows:

“ ‘If its operation and effect must necessarily be special, the act is special, whatever may be its form. If, on the other hand, the act has room within its terms to operate ^tipon all of a class of things, present and Prospective, and not merely upon one particular thing, or upon a particular class of things existing at the time of its passage, the act is general. That the question is not one of form is expressly held as necessarily implied in all the eases, and, if this were not so, then the Constitution could be easily evaded ‘by dressing up special laws in the garb and guise of general statutes’.” I Lewis’ Sutherland Statutory Construction, p. 359.

The same authority adds: “The question must be determined from the act itself and from the facts of which the .court will take judicial notice.”

There are many cases holding that a statute conferring powers' upon sub-agencies of government, such as counties and municipalities, classifying them according to population, is general legislation and not special. Such a. statute is necessarily prospective in its nature, and applies to all localities which come within the class. We have before us, however, a statute which, in its application, according to the test of which we may take knowledge, applies only to one county, and can never apply to any other, and the statute is necessarily local in its application. Nearly all of the authorities that we can find on the subject declare such legislation to be special rather than general. The authorities on this subject were reviewed by Chief Justice Sherwood in the case of State v. Herrmann, 75 Mo. 340, and a statute similar in effect to the one now before us was declared to-be a special one, and void under the Constitution of Missouri. The Supreme Court of Illinois reached the same conclusion in regard to a similar statute which was construed in the case of Devine v. Comrs. of Cook County, 84 Ill. 590. Other authorities to the same effect are as follows: Knopf v. People, 185 Ill. 20; Wheeler v. Philadelphia, 77 Pa. St. 338; State v. Mitchell, 31 Ohio 592; State v. Ellet, 47 Ohio 90; Topeka v. Gilleti, 32 Kas. 431; State v. Hammer, 42 N. J. L. 35; State v. Des Moines, 96 Iowa 521.

In the Kansas case cited above there was under consideration á statute which applied to cities of certain population, and the court said:

“Courts may take judicial notice of the census returns, of the general history of the country, of what the members of the Legislature ought to know when passing the statute which the courts are called upon to construe; and, indeed, of what all well-informed persons ought to know. And, taking judicial notice of all these things, we can sajr without hesitation that it was not possible for the said act of March 3, 1875, within the time which it was to have force and effect, to apply to any corporation except the three cities of Topeka, Lawrence aiicl Atchison. It would apply to just those three cities —no more and no less; and any person who would take the trouble to inform himself with regard to the matter would know it. Is such an act a general act, or is it merely a special act? It is our opinion that it is merely a special act.”

Now, the language of this statute shows that it was not prospective so as to include any other counties which might come within that population in the future, for it related to such road districts only as were then in existence to which Federal aid had been alloted but not paid, and the test of population could only have related to the last census and not to any future census. In other words, this statute selected Mississippi County as its only field of operation as unerringly as if it had been made to apply to that county by name. The effect is therefore purely local, and, under the rule announced by the authorities, we must so treat it, and it follows that the statute is void because the notice of its introduction could not have been published for the length of time required by the Constitution. The decree of the chancery court was therefore erroneous, and it is reversed, and remanded with directions to enter a decree in favor of appellant, in accordance with the law herein stated.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Helton v. Howe.
    Opinion delivered January 28, 1924.
    1. Appeal and error — appealable order — release of garnishment. — As a garnishment proceeding is ancillary to the main action, an order releasing the garnishee is final and appealable.
    2. Appeal and error — presumption in favor of judgment— Where the plaintiff gave bond required by Crawford & Moses’ Dig., § 4906, as a prerequisite for the issuance of garnishment before judgment, and subsequently released the surety on its application, but granted leave to plaintiff to file a new bond, which was not done, whereupon the garnishee was discharged, held, in the absence of a showing in the record to the contrary, it will be presumed that the court acted upon evidence sufficient to sustain the order releasing the surety and discharging the garnishee.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      Walter M. Purvis, for appellant.
    1. The circuit court was without jurisdiction. The surety’s remedy, if any, was in equity. 2 Chitty, 225; 40 Cent. Dig. Prohibition, §§ 35-56. For test of jurisdiction in this case see 17 Standard Proc., 660. The jurisdiction in the first instance must be determined by the allegations in the complaint. 7 Ark. 260; 123 Ark. 40; 184 S. W. 416. See also 99 N. W. 909; 121 Wis. 127 ; 2 How. (U. S.) 319, 11 Law. ed., 283; 101 Ark. 193; 141 S. W. 1167.
    2. In an action at law, one is- not entitled to have a bond vacated on the ground that' he was induced to execute it by-false representations. 8 Cent. Dig., 965, § 42.
    3. There was no ground for equitable relief. 65 Hun 622; 20 N. T. Supp. 152; 8 Cent. Dig., 45, § 33. See also 171 Pa. St. 632; 5 Wash. 584; 8 Cent. Dig., 53, § 39; Id. 65, § 42; 34 Pa. St. 365.
    4. Two issues are presented here, one between the plaintiff and defendant, and one between the plaintiff and his surety. 34 Okla. 796, 127 Pa. 481. Garnishment is purely a statutory remedy in this country, and lias no existence in the absence of statutory authority. 198 U. S. 215, 49 Law. ed. 1023; 130 Mass. 86; 40 Wash. 443, 82 Pa. 875; 2 L. R. A. (N. S.) 568. By these authorities it is obvious tli at the garnishment proceeding is an adversary proceeding. The service of the writ fixes a lien upon money or property in the possession of the garnishee. 3 Ark. 101; Id. 509; 6 Ark. 391; 18 Ark. 249; 72 Ark. 350; 91 Ark. 252; 101 Ark. 193.
    5. Courts lose control of their judgments after the lapse of the term, and, in the absence of statutory authority, cannot alter or vacate them at a subsequent term. 144 Ark. 301; 222 S. W. 57.

      Gus Fulh, Franh Pittard and Martin K. Fulh, for Southern Surety Company.
    The order complained of in this case is not a final and appealable order within the meaning of the statute. C. & M. Digest, § 2129; 10 Ark. 633; 26 Ark. 51; 5 Ark. ”399; 117 Ark. 36; Freeman on Judgments, 37; 99 Pac. 1000, 35 Utah 213. '

      McConnell é Henderson, for W. B. "Worthen Company.
    The order was not final. It has not yet been determined that the plaintiff is entitled to recover anything from the defendant. 91 Ark. 112; 70 Ark. 127. The supersedeas is a complete release and protection to the garnishee. 126 Ark. 7; 144 Ark. 149,
   McCulloch, C. J.

Appellant instituted an action below against W. T. Howe, one .of the appellees, to recover damages on account of alleged wrongful act of said appellee, and, at the tinte of' the commencement of the action, appellant sued out a writ of garnishment against appellee, W. B. Worthen Company, a domestic 'corporation. Appellant gave bond required by the statute as a prerequisite for the issuance of garnishment' before judgment. Crawford & Moses’ Digest, § 4906. The garnishee answered, admitting that it held funds belonging to Howe, defendant in the action. The surety on the bond originally filed by appellant appeared in court and moved to be released from the bond; the motion was sustained, and appellant was granted leave to file a substituted bond, which was done, with the Southern Surety Company as surety thereon. On a later day, during the pendency of the action, the Southern Surety Company filed its application in the action to be released from the bond, and, on hearing the application, the court granted it and ordered the said surety to be released, but granted leave to appellant to file a new bond within the time specified by the court — two days from the order releasing the surety. Appellant declined' to file a new bond, but stood upon the order of the court releasing the surety and discharging the garnishee, and has prosecuted an appeal to this court.

A motion has been filed by the appellees to dismiss the appeal on the ground that the order releasing the surety and discharging- the garnishee was not final. We think that this contention is unsound. The garnishment is a proceeding which is ancillary to the main action between plaintiff and defendant, and the order releasing the garnishee finally disposes of that part of the action, and the order is appealable. Hatheway v. Jones, 20 Ark. 109. If this were not so, a plaintiff would be without a remedy to correct an erroneous order or judgment of the court discharging a garnishee, if the order of discharge was entered before the disposition of the main action. The injury sustained by the dismissal of the garnishment would be irreparable if the defendant should prove to be insolvent and the plaintiff should recover in the action against him. Our conclusion is that the case is properly here on appeal to review the action of the court in discharging the garnishee.

It is contended, in the first place, that the order discharging the g-arnishee was erroneous because it was rendered without notice. The record does not sustain this contention. The first entry made by the court of its order in this matter recited that appellant was present by his attorney, but there was a correction of this entry on a later day to show that appellant was not present, but that he had notice of the proceeding. This is borne out by the further fact that appellant filed his response to the application of the surety for release.

It is contended that the order of the court is not justified by the facts, and that it is void for want of jurisdiction of the court to make such an order. The statute authorizing- and regulating- garnishments before judgment confers no authority, in express terms, for a court to release the surety on the plaintiff’s bond, nor to discharge the garnishee, prior to the final judgment in the case, except when the garnishee answers and surrenders the funds or other property alleged to be in his hand's. But an application by the surety for release from the bond raises an issue between the surety and the plaintiff in the case, and the court has power to grant relief to the surety upon proper showing that the signature of the surety was obtained by fraud. The rights of the defendant in the action and the garnishee can be protected by an order requiring a new bond1, or, on failure to give a new bond, that the garnishee be discharged, as was done in the present case. In the absence of a showing in the record to the contrary, by bill of exceptions or otherwise, we must indulge the presumption that the court acted -upon evidence sufficient to justify the petition, and sustain the order releasing the surety and discharging the garnishment. Billingsley v. Adams, 102 Ark. 511; Armstrong v. Lawson, 128 Ark. 39; Heard v. McCabe, 130 Ark. 185; Laramore v. Radford, 135 Ark. 494.

The judgment releasing the surety and discharging the garnishment is therefore affirmed.


author: Wood, J.

text:
    Bray v. Timms.
    Opinion delivered January 28, 1924.
    1. Trusts — express trust — parol evidence. — Even if parol evidence were competent, under Crawford & Moses' Dig., § 4867, to establish an express trust in an oil and gas lease, the evidence herein was insufficient for that purpose.
    2. Trusts — constructive trust. — Though evidence is inadmissible to establish an express trust, under Crawford & Moses’ Dig., § 4867, it is competent under § 4868, Id., to establish a resulting or a constructive trust.
    3. Trusts — creation of trust ex maleficio. — Trusts ex maleficio will be declared whenever the legal title of property, real or personal, has been obtained through actual fraud, misrepresentation, concealment, or other undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances, which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest.

      4. Trusts — sufficiency of parol evidence. — While trusts resulting by operation of law may be proved by parol evidence, such evidence will be received with great caution, and must be full, free and convincing.
    5. Trusts — deed absolute in form — evidence.—In the case of a deed absolute in form there is'a strong presumption against the existence of a trust, which must be overcome by a greater weight of evidence than a mere preponderance.
    6. Trusts — sufficiency of evidence. — In a suit to establish a trust ex maleficio in an oil and gas lease, evidence held insufficient to establish same.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      John G. Leopard S Son, Randolph & Randolph and Marsh S Marlin, for appellant.
    If any trust relation existed between Koch and Timms, it existed because of an express agreement or contract, and was an express trust. It could not have been a resulting trust, because no part of the consideration paid for the deeds of conveyance was paid by Timms. Crawford & Moses’ Digest, § 4876. Parol evidence will not be heard to engraft an express trust upon a deed absolute in form. 103 Ark. 273; 104 Ark. 32; 110 Ark. 389; 100 Ark. 253. There is no implied trust relation existing between these parties, in respect to the royalty interest, neither can it be contended that a trust ex maleficio was created, since there is nothing in the record that raises even a suspicion that Koch practiced any fraud upon Timms. 113 Ark. 36; 73 Ark. 310. Appellee is estopped by the deed executed August 3,1920, to Koch, as well as by his own conduct in holding his own assignment of same off the record, and procuring the conveyance to be made direct from Dail to Koch, and accepting the consideration from Koch that was paid for this one-half royalty described in the deeds. 10 R. C. L. 677; 8 Ark. 345. The testimony, even if parol evidence were admissible to establish a trust relationship here, does not.meet the requirements of the law to the effect that such evidence must be full, clear and convincing. 89 Ark. 183; 11 Ark. 82; 19 Ark. 365; 44 Ark. 365; 45 Ark. 481; 48 Ark. 169; 64 Ark. 115; 1 Perry on Trusts,, par. 137; 114 Ark. 128; 70 Ark. 145, 66 S. W. 658; 101 Ark. 451,142 S. W. 848; 73 Ark. 313, 83 S W. 910; 3 Pomeroy, Eq. Jur., § 1056;' 145 Ark. 161. See also 20 R. C. L. 1251, par. 98; 111 Ark. 45; 109 Ark. 335.

      Mahony, Yocum S 8aye and McClintoch, Quant & Ferguson, for appellee.
    1. A deed once executed and delivered cannot be revoked, nor tlie title reconveyed by cancellation or destruction of such. Devlin on Deeds, 3d ed., § 300; 8 R. C. L., § 70; 124 Va. 736; 92 Mo. 532; 166 Ind. 471; 225 Mass. 531; 44 N. D. 114; 107 Wash. 523; 188 Ky. 832; 242 S. W. (Ky.) 15; Id. 853; 21 Ark. 80; 34 Ark. 503; 52 Ark. 493; 53 Ark. 509; 60 Ark. 8; 108 Ark. 491; 245 S. W. (Ark.) 41.
    2. A purchaser of land with notice of an unrecorded, delivered deed acquires no title, and purchases subject thereto, dependent upon the terms of the unrecorded conveyance. 14 Ark. 286; 48 Ark. 277 ;< 57 Ark. 508-9; 77 Ark. 309; 95 Ark. 582; 108 Ark. 490; 127 Ark. 618; 132 Ark. 158; 135 Ark. 206; 138 Ark. 215; 238 S. W. (Ark.) 19.
    3. The deed from Timms to Koch, dated August 3, 1920, never having been delivered, was void, and conveyed no interest in the Garrett Royalty. 14 Ark. 286; 24 Ark. 244; 74 Ark. 104; 77 Ark. 89; 80 Ark. 8; 97 Ark. 283; 98 Ark. 466; 100 Ark. 427; 123 Ark. 601; 132 Ark. 438; 140 Ark. 579; 142 Ark. 311.
    4. The appellant cannot, on appeal, raise issues or defenses or present theories of the case for which he did not contend in the trial court. 74 Ark. 88; 74 Ark. 557; Id. 312; 81 Ark. 549; 82 Ark. 260; 83 Ark. 575; 101 Ark. 95; 108 Ark. 490; 131 Ark. 382; 132 Ark. 458; 149 Ark. 142.
    5. Timms, while holding the legal title to the Garrett royalty by deed from Dail, with intent to convey part thereof for value, caused Dail to execute subsequent deed therefor to Koch, who transferred to Bray with notice. Timms, therefore, still holds the legal title to the. Garrett royalty, in part for himself, and in part as trustee for Bray, to the extent only of Bray’s actual equitable interest in such royalty. 7 N. D. 335, 47 L. R. A, 637.
    6. While clear and convincing proof of a resulting or constructive trust is required, it is not essential that such proof be undisputed. 246 S. W. (Ark.) 499.
    7. If one purchases land with notice of a trust, he takes it impressed with such trust. 137 Ark. 14, 207 S. W. 436.
    8. There are, in this country, two kinds of enforceable parol trusts: first, resulting trusts, and, second, constructive trusts. 100 Ark. 253. '
    9. An oral agreement between A and B that B shall purchase certain property, taking title in his own name, A furnishing part of the consideration, and B the remainder, and that A should have a definite interest in the property by reason of having furnished a specific portion of the consideration, does not fall within the statute of frauds. It is a resulting trust, and enforceable. Pomeroy, Eq. Jur., 4th ed., $ 1038; 9 Ark. 518; 19 Ark. 39; 20 Ark. 272; 27 Ark. 77; 29 Ark. 612; 35 Ark. 548; 40 Ark. 62; 42 Ark. 503;, 45 Árk. 481; 64 Ark. 155; 70 Ark, 145; 79 Ark. 69; 81 Ark. 478; 105 Ark. 318; 114 Árk. 128; 118 Ark. 146; 132 Ark. 402; 243 S. W. (Ark.) 811.
    10. Where one in the course of a fiduciary or confidential relationship purchases real property for the benefit of the party toward whom he holds that relationship, he cannot, by taking title thereto in his own name, claim the property to the exclusion of the other. Equity would hold such a person as a constructive trustee. Pomeroy, Eq. Jur., 4th ed., § 1053; 19 Ark. 39; 20 Ark. 222; Id. 381; 26 Ark. 344; 39 Ark. 309; 73 Ark. 310; 101 Ark. 451; 103 Ark. 273; 113 Ark. 36; 136 Ark. 481; 151 Ark. 305.
   Wood, J.

On the 18th of October, 1920, George B. Koch and wife executed and delivered to Rolla Bray the following deed:

“Know all men by these presents: That whereas, E. R. Garrett and Martha J. Garrett, his wife, did on the 5th day of June, 1919, execute and deliver to H. H. Neihaus, a trustee, a certain oil, gas and mineral lease on a tract of real estate then owned by them in Union County, State of Arkansas, described as ‘the S1/^ of the NUU4 °f section 4, township 19, range 15, containing 80 acres, more or less, which said lease is recorded in book 74 at page 164 of the deed records of said county; and
“Whereas, on the 5th day of February, 1920, said R. R. Garrett and Martha J. Garrett, his wife, still the owners of said real estate, did execute, acknowledge and deliver to H. L. Dail of Union County, State of Arkansas, their deed of conveyance, transferring and conveying to said H. L. Dail an undivided one-half interest in and to all the oil, gas and other minerals in, under and upon said real estate, subject to the aforesaid lease, and an undivided one-half interest in and to all royalties reserved by virtue of said lease, together with other rights and interests, which said deed of conveyance was recorded on the 5th day of February, 1920, in book 85, at page 90 of the deed records of said county;
“Now therefore, George B. Koch, the undersigned, of Jamesport, in Daviess County, Missouri, for and in' consideration of the sum of five thousand dollars in cash and a note of $2,500, issued by the said George B. Koch to L. W. Timms, the cash paid and note delivered by Rolla Bray of Daviess County, State of Missouri, the receipt of which is hereby acknowledged, does hereby sell, assign, transfer, set over, and convey unto the said1 Rolla Bray and unto his heirs and assigns forever all of his right, title and interest, as obtained aforesaid, to and under the said deed of conveyance made, executed and delivered aforesaid to him by IT. L. Dail on the 7th day of May, 1920, and recorded in deed records 89 at page 296 of the deed records of Union County, in the State of Arkansas, conveying the oil royalties and all oil interests conveyed to him on the S% of the NW1^ of section 4, township 19. range 15, containing 80 acres, more or less, as shown by lease records in book 74 at page 164 of the deed records of said county.
“To have and to hold the same imto the said Rolla Bray and unto his heirs and assigns forever, under the terms and conditions as in said deed of conveyance contained.
“In testimony whereof I have hereunto set my hand this the 18th day of October, 1921.
“George B. Koch,
“Anna Koch.”

This action was instituted by Lewis W. Timms, the appellee (hereafter called Timms), and Harvey O. McClary against Rolla Bray, appellant (hereafter called Bray), to have a trust declared in favor of Timms to a four-sixths interest in the royalties conveyed to Bray by the above instrument. McClary after-wards dismissed his complaint, and he passes out. The interest conveyed by the deed is referred to throughout the record as the “Garrett royalty,” and will hereafter be called the “Garrett royalty.”

Timms alleges in- his amended complaint that Bray holds the Garrett royalty, the same being a one-sixteenth interest in all the oil, gas and other minerals produced upon the land, in the proportion of four-sixths thereof for Timms and two-sixths for Bray,- Bray denies this, and alleges that he owns the entire interest in the royalty conveyed to him by the deed.

R. R. Garrett and wife were the owners of eighty acres of land in Union County, Arkansas, and in 1919 they executed an oil and gas lease in usual form to one H. H. Neihaus, trustee, reserving to themselves oneeiglith of the oil, gas and other minerals produced on said land. In addition to the above deed from Koch to Bray, the record contains the following documentary evidence:

On February 5, 1920, Garrett and wife conveyed to H. L. Dail an undivided one-half interest in the oil, gas and other minerals in, under and upon the lands described, subject to the Neihaus lease, and also an undivided one-half of the royalty they were to receive under the lease. This instrument, was duly recorded on the clay of its execution. On the back of the deed was indorsed an assignment from Bail to Timms of all Bail’s interest conveyed by the deed. This assignment was dated February 27, 1920. The assignment was never recorded. On the 7th of May, 1920, Bail conveyed to George B. Koch, by deed absolute in form, the royalty which had been conveyed to him by Garrett, which deed was duly recorded May 20, 1920.

On the 3rd of August, 1920, Timms executed a deed absolute on its face, which, after reciting the former conveyances of the royalty from Garrett and wife to Bail and from Bail to Timms, purports to convey all the right, title and interest of Timms in the royalty to Koch. This deed was duty acknowledged on the day of its execution, but was never recorded. On the ,12th of October, 1921, George B. Koch, Lewis Marlow and Gus Lent, parties of the first part, and Rolla Bray, party of the second part, entered into a “contract of sale” as follows:

“That the parties of the first part have this day sold to the party of the second part all'their right and interest in a certain royalty executed by R. R. Garrett and Martha J. Garrett, his wife, by their instrument in writing executed on the 5th day of February, 1920, on the south half of the northwest quarter of section 4, township 19, range 15, Union County, in the State of Arkansas, and said instrument recorded in book 85, at page 90, in (he records of Union County, said title of the parties of the first part obtained through a conveyance made by L. W. Timms to the said George B. Koch and his heirs and assigns forever, and on the 3rd day of August, «4920, which conveyance recites that whereas, on the 5th day of February, 1920, said R. R. Garrett and Martha J. Garrett, his wife, while still the owners of said real estate, did execute, acknowledge and deliver to H. L. Bail of Union County, State of Arkansas, their deed of conveyance, transfer and convey to the said H. C. Bail an undivided one-half interest in and to all the oil, gas and other-minerals in and upon said real estate, subject to the aforesaid lease, and an undivided one-lialf interest in and to all royalties reserved by said Garrett and wife, under and by virtue of said lease, together with other rights and interests, which said deed of conveyance was recorded on the 5th day of February, 1920, in book 85, page 90, of the deed records of said county, and the said II. L. Dail assigned the said property to L. W. Timms of Kansas ©ity; and the L. W. Timms of Jackson County, in the State of Missouri, for the consideration of $1 and other valuable considerations, to him cash in hand paid by G. B. Koch of Daviess County, Missouri, did hereby sell, transfer, assign and set over and convey to the said George B. Koch and his heirs and assigns forever all his right, title and interest in and to and under the said deed of conveyance made, executed and delivered, as set forth to him by B. B. Garrett and Martha J. Garrett, his wife, on February 5, 1920, and recorded as aforesaid in book 85, at page 90, of the deed records of Union County, State of Arkansas, which said deed of assignment was executed by the said L. W. Timms, the interest as combed in said deed to be conveyed to the said Bolla Bray; and it is further contracted and agreed that whatever title the said first parties acquired heretofore under said deed of assignment from L. W. Timms shall be assigned and conveyed to the said Bolla-Bray, by whatever conveyance necessary to properly assign said interest.
“It is further agreed that the said Bolla Bray shall pay $1,000 as earnest money to bind this contract, and within thirty days shall pajr the balance as follows: $4,000 in caáh, and deliver a note executed by George B. Koch to L. W. Timms, consideration $2,500, now held by F. C. Smith, as a part of the purchase price of the royalty ' herein sold to Bolla Bray.”

On the 15th of October, 1921, H. L. Dail and his wife, Josephine Dail, executed a deed absolute in form, conveying to George B. Koch all of their interest in the royalty in controversy.

Besides the above documentary evidence, there is a vast volume of oral testimony which' we have carefully considered.

Timms alleged, and lie adduced testimony which, tended to prove, that he and Dail were partners in the business of dealing in oil, gas and mineral leases and royalties until about the 23rd of February, 1920; that the Garrett royalty was conveyed by Garrett to Dail and by Dail to him; that he sold a one-half interest in this royalty to Koch, Marlow and Lent; that the consideration paid by them for this half interest was $7,500, and they were to divide it equally between them in the proportion of one-sixth each, for which each was to pay the sum of $2,500; that Koch executed his note for that sum, and Marlow and Lent paid for their respective interests in cash; that it was agreed between them that the entire title should appear in Koch, and that lie should hold the same in trust for himself and the others according to their respective interests; that accordingly Timms, who owned the royalty, had Dail, in whom the record title yet appeared, to convey the title directly to Koch, and told Dail to make Koch trustee in the deed, but he failed to do so, and that Timms at the same time also delivered to Koch the deed which had been executed to him by Dail, but which had not been recorded; that it was understood between them that, in pursuance of the agreement that the record title should' appear in Koch, a declaration of trust was prepared, covering the Garrett royalty and showing the respective interests of the four parties; that these four parties agreed to syndicate their interests under a common-law trust and subdivide the same into units to the amount of $50,000; that they would sell these units and issue certificates of interest signed by Koch, as trustee, until a sum was realized sufficient to reimburse themselves in proportion to the sums each had invested, and the residue of the royalty unsold was to be owned by them in proportion to their respective interests. However, before the trust was actually executed or any interest sold under it, this scheme was abandoned. The declaration of trust was never recorded, and the absolute record title remained in Koch.

Timms further alleged that Bray knew all of the above facts, and that Koch, Marlow and) Lent held, their interest in the royalty six months or more; that Timms and Bray entered into an .agreement to purchase the interest of Koch, Marlow and Lent in the royalty, and that, after prolonged negotiations, the deal was consummated, by the terms of which he surrendered to Koch his promissory note for $2,500 as the consideration for the purchase of Koch’s one-sixth interest, and that Bray paid to Marlow and Lent $5,000 for the purchase of their respective interests, and that one Harvey C. McClary had contributed $700 of the amount necessary for the purchase of the interest of Marlow and Lent.

Timms testified that Bray was advised, in the presence of Scott Miller, that Koch held the title to the Garrett royalty in trust for Timms and for Marlow, Koch and Lent; that he had told Bray of the interest that Koch, Marlow and Lent had in the Garrett rovalty perhaps a dozen times before the 5th of October, 1921. He further testified that he had delivered to Koch the deed from Dail to Timms when he sold Koch an interest in the Garrett royalty, and he never saw it afterwards in Brav’s hands, except that it was read to witness and Bray in Miller’s office. On several occasions Bray was advised of the unexecuted declaration of trust; that about the first of October, 1921, Bray and Timms met in Scott Miller’s office, where Bray was told of the deed of the Garrett royalty to Dail and that such deed was in the hands of Koch. Timms also testified that he informed Bray of the deed executed by Dail to him, which had not been recorded, prior to October 12,1921, when the contract for the sale of the Garrett royalty between Koch, Marlow, Lent and Bray was entered into. Timms testified that he and Bray had handled other stuff together; at one time had bought a farm in Kansas for which Timms paid two-thirds and Bray paid one-third. Title was taken in Timms, and Timms afterwards executed to Bray a deed for his interest. He also testified to other facts showing that their business relations had been close and intimate; that when they went on the first trip to El D.orado to examine the royalty, after the contract was entered into to purchase the interest of Koch, Marlow and Lent, they went together on the train, sharing equally the expenses of the trip, and that they always divided the expenses.

Scott J. Miller testified that he was the attorney for Koch, Marlow and Lent in the transaction for the sale of their interest in the Garrett royalty. His testimony is to the effect that, after Bray'and Timms had concluded their negotiations with each other and with Koch, Marlow and Lent, looking to the purchase of their interests, these negotiations were evidenced by a written contract, which witness drew. Judge Alexander was the attorney representing Bray. A thousand dollars was paid down by Bray before the contract was finally completed. The balance of $4,000 was to be paid when Koch’s note for $2,500 to Timms was returned and the $4,000 balance paid. Witness had sent the deed for Koch and his wife to execute. This deed is the same as that set out above of date October 18, 1921, except that the deed which he had prepared and Koch had executed had in it, at the end of the paragraph last preceding the paragraph “to have and to hold,” the following: “This deed only conveys the interest of George B. Koch, Lewis Marlow and Gus Lent. ’ ’ At the suggestion of Koch this paragraph was inserted because otherwise it might be considered he was transferring title to all the Garrett royalty. The deed with this paragraph inserted was tendered to Bray, and witness told Bray that he didn’t want him to accept it without knowing that the paragraph had been inserted. Bray submitted the deed to his attorney, Judge Alexander, and Brav and Alexander both objected to the inserted paragraph. Witness then insisted with Koch that it was in the contract that it should not be written in there; that the deed fully explained what he was deeding. Then the inserted paragraph was crossed out. and the deed was delivered to Bray, and likewise the deed from Dail to Koch, with the assurance that they would have nothing further to do with it. Bray asked about.the abstract, and was informed that Timms had it.

Witness further testified that, at the time arranged for the closing of the transaction in witness’ .office, Bray and Timms were present. He stated that something was said as to Timms’ interest, and that Bray fully understood that Koch only owned or .controlled a one-half of the Garrett royalty; that this was all that Koch owned, and in his deed he transferred only the interest he had, representing himself, Lent and Marlow. Witness further testified that he told Bray, at the time he paid the remaining $1,000 and delivered to Koch his note for $2,500, that Koch, Marlow and Lent owned three-sixths of the Garrett royalty and that the other three-sixths belonged to Timms. Witness knew personally that a declaration of trust had been prepared, and had told them, prior to the closing of the transaction, in the presence of Bray, that the declaration of trust had not been executed, but that Koch held the title to the royalty as trustee, and only owned or controlled a half interest of the royalty for himself, Marlow and Lent. Witness didn’t remember Bray’s words exactly in answer to this statement, but did remember that Bray said that he was simply buying the interest of Marlow and Lent, his clients, and witness explained what their interests were. Witness also stated that George B. Koch had not executed a trust, and therefore the title being in him (Koch), any transfer by Koch would transfer the title that was put in Koch, and the parties’ interest in the result would remain the same.

Other witnesses, attorneys representing Timms, testified that, in conferences had between Timms and Bray, at which Leopard, who is now Bray’s attorney, was present, looking to the purchase of the Garrett royalty from Koch, Marlow and Lent, Bray and Timms seemed to be conversant with the facts as to the ownership of the Garrett royalty, and the explanation of each in those conferences was to the effect that Timms originally had title which, he acquired from Dail, and that he sold a half interest to Koch, Marlow and Lent, or a one-sixth to °ach of them, for the sum of $2,500, each, and that Timms and Bray were negotiating for the repurchase of this interest of Koch, Marlow and Lent upon the terms as stated by Timms and Miller. In other words, these witnesses corroborated the testimony of Miller and Timms to the effect that Timms had title to the Garrett royalty which he had acquired from Dail, and that he had sold a half to Marlow, Koch and Lent, and that, if the arrangements between Timms and Bray for the purchase of the Koch, Marlow and Lent interests were carried out, Timms would own four-sixths and Bray would own two-sixths of the Garrett royalty.

The testimony of Koch, Marlow and Lent was to the effect that they purchased of Timms a half interest of the Garrett royalty — that is, a half of one-sixteenth of production.. The conveyance was made to Koch by Dail for the Garrett royalty, and Koch was to hold the interest of Marlow and Lent in trust for them, and also the one-half interest retained by Timms. Timms denied that he had ever delivered the deed, to Koch of August 3, 1920, and Koch also testified that he received only the deeds from Dail purporting to convey the Garrett royalty to Koch.

There was testimony in the record tending to prove that Bray, before and after the written contract of October 12, 1921, by his conduct and conversation showed that he didn’t have the entire interest in the Garrett royalty; that he (Bray) was'a trustee, etc.; that he was endeavoring to raise money to purchase, in connection with Timms, the interest of Koch, Marlow and Lent in such Garrett royalty. This testimony was to the effect that, after this contract, Bray stated to several that he had $2,500 interest in it, and that Timms was the “lucky dog,” — that he, Timms, had the largest interest. There is much testimony of this character.

Both Timms and Mrs. Timms testified to the effect that Bray recognized Timms’ interest, and promised to issue to him a certificate showing that he held such interest in trust for Timms, but that afterwards he failed and refused to do so.

On the other hand, Bray, in his answer, denied that he purchased only an undivided interest in the Garrett royahw, as set up in Timms’ complaint, and denied that he was to bold the Garrett royalty in trust for any one, but alleged that he purchased from Koch the entire Garrett royalty. The allegations of his answer concerning this are as follows:

“That prior to the purchase by this defendant of said royalty, plaintiff, Lewis W. Timms, had been arrested upon criminal charges preferred by said George B. Koch, L. C. Marlow and Gus Lent, charging plaintiff with fraud and obtaining money under false pretenses in connection with the sale of said Garrett royalty from said H. L. Dail to said Koch, Marlow and Lent; that such criminal prosecutions were pending in the circuit court of ‘Daviess County, Missouri, at the time of the purchase of said royalty by defendant; that said Koch, Marlow and Lent were acting together and in concert in instituting such prosecutions, and, in order to obtain the consent of said parties to the dismissal -of any or all of said charges, it was necessary to restore to said Marlow and Lent the $6,000 paid by them, as well as to said Koch the $2,500 note given by him; that plaintiff was without funds, and appealed to this defendant to purchase said royalty by paying to said Marlow and Lent the $5,000 paid by them, and agreed to return to- said Koch the $2,500 note given by him; that at that time said $2,500 note had been transferred to a friend and business associate of plaintiff, who ha°d instituted suit thereon against said Koch, which said suit was then pending and contested bv said Koch on the ground that skid note had been obtained by plaintiff through fraudulent means and pretenses; said note, being involved in doubtful litigation, was of little or no value, and plaintiff agreed with defendant that, if he would buy said royalty at the price of $5,000, he, the plaintiff, would procure and surrender to said Koch the said note of $2,500, in order that defendant might he able to secure from said Koch a deed of conveyance covering the entire royalty; it was agreed between plaintiff, this defendant, and said Koch, Mar-low and Lent, that this defendant should pay to said Marlow and Lent the said sum of $5,000, and that he should receive therefor a deed of conveyance for, and become the sole owner, legal and equitable, of the Garrett royalty; that the return of said $2,500 note was not made in consideration of any interest held by said George B. Koch, but was made to induce said Koch to execute to defendant a conveyance of the entire Garrett royalty and to abandon the prosecution of plaintiff on the criminal charg-e aforesaid; that plaintiff procured and delivered to this defendant an abstract of title to said property, purporting to show the title to said royalty interest, and which did show, by recorded conveyances, that H. L. Dail had purchased said royalty from Garrett, the landowner, and that said.H. L. Dail had sold and conveved the same to George ¡B. Koch, and the said Lewis W. Timms advised this defendant that the title thereto was good and perfect, and that the conveyance of George B. Koch to this defendant would vest in this defendant a good title, and that the statements of said Lewis W. Timms were verified by said abstract and his examination thereof, and he was induced thereby to purchase the same; that, pursuant to said agreement, defendant did pay over to said Marlow and Lent the sum of $5,000, and a deed of conveyance was executed by said Koch and delivered to defendant, conveying to him the entire interest in the Garrett royalty, without reservation, and the same was accepted by defendant in the belief that it conveyed the apparent legal title of said Koch, and without any knowledge of any claim on the part of plaintiff to an equitable interest therein, and no such claim was ever made to him by plaintiff until said royalty promised to become valuable.”

To sustain these allegations, in addition to the documentary evidence above referred to, Bray adduced, in substance, the following oral testimony: John C. Leopard testified that he was the attorney for the Pattonsburg Savings Bank, and that the bank had instituted suit against Koch on a $5,000 note executed by Koch to Timms for an interest in what is known as the Garrett royalty, which note had been indorsed by Timms to the bank. Timms had been arrested on the 22d of September, 1922, on a charge lodged against him by Koch, Marlow and Lent, the charge being that he had obtained $2,500 from Marlow by false representations in the sale of the Garrett royalty, and the sum of $5,000 from Gus Lent and also $5,000 from Koch by false representations in the sale of the Bridges royalty. On Sunday, the second of October, 1921, witness and Bray were in Kansas City to obtain evidence to be used in the suit of the bank against Koch. This suit had been set for trial on the 12th of October, 1921. They went to the office of Timms, and, at his request, they went to the office of Timms’ attorney, McClintoek, and were there introduced to him, Meyers and Quant. McOlintock advised Timms to make arrangements to either resell these royalties or buy them back on his. own account. Timms stated that he had recently spent $16,000 in drilling a dry well, but thought he could raise the money if lie had some time. Timms asked Bra3r to see the people who bought the royalties and find out on what grounds they could be bought back. Timms said that he would come to Pattonsburg in a short time, and he and Bray would see what kind of a proposition they could get from Koch, Marlow and Lent, and in the meantime he would try to raise the money necessary to buy the royalties. There was no talk at that time as to what interest Koch, Marlow and Lent had in either of the royalties, and nothing was said about -Timms having any interest whatever in either of them, and nothing said as to how or in whose name the title would be taken. There was some talk with reference to a conversation with Scott Miller to the effect that the parties were claiming interest on the money, and that the royalties might be purchased for their face. Timms, in the - conversation, stated, in regard to the note for the Garrett royalty, that he would take care of it or control it. He figured how much it would take to settle the $2,500 note for the Garrett royalty, and for the Bridges royalty it would take about $16,000; that the royalties were worth the money, and that the Garrett royalty was worth the most money. Witness and Bray left with the understanding that Timms was coming over into the Pattonsburg country within the next clay or two, and he and Bray were going to try to sell the royalties. Witness further testified that one Emil Bleish, Robert E. Maupin and Rolla Bray, who were witness’ clients, furnished a bond for Timms in the criminal prosecution. Witness appeared in connection with Timms attorney, McClintock, to renew the bond which had been given before the justice of the peace. Timms and witness at that time had not made a contract of employment, but it was supposed that they would. Witness would have appeared for him at that time, as a favor, if he had never seen him before. After the difference came up between Timms and Bray and the other parties about the Arkansas royalties, witness informed McClintock that he represented these parties, and, in consequence, he never asked Timms for any agreement about an attorney’s fee, and did not consider that the relation of attorney and client existed between him and Timms at the time he was representing him in the bond matter. What he did was more for McClintock, Timms’ attorney, than it was for Timms.

Two witnesses testified that they were local real estate brokers at El Dorado, dealing in leases and oil royalties, on the 12th of October, 1921, and their testimony showed that the sum of $5,000 was a fair average, value for the Garrett royalty. Appellant introduced a letter from Miller to Bray concerning the consummation of the contract of October 12, in which Miller stated that he was inclosing leases an,d assignments of Barrett and wife to Dail, of Dail to Timms, and Timms to Koch, being all the title that his clients had, and instructing Bray to have the deed prepared for Koch to sign, and he would see that such deed was executed; and also a letter afterward to the effect that he inclosed a copy of the deed which he had sent to Koch, to be executed as Bray and his attorney desired, and another letter advising Bray that everything was in readiness for him at the proper time.

The testimony of Bray, so far as it is necessary to set it out, is that he told Timms that, if he bought the Barrett royalty he would not go into any syndicate nor sell it out to anybody, and that was before he contracted for it with Miller. He had the abstract of title which showed the interest of Koch, Marlow and Lent in the Barrett royalty, and that Miller said nothing at all about any interest. Miller asked that Koch, Marlow and Lent have their money back, with interest, and that, if Bray got that, Miller was to convey the title to a one-sixteenth ■royalty. The (original) Barrett royalty was a one-eighth of all the oil, and witness was buying .a one-sixteenth of all the oil. He offered $5,000 with no interest, and it was accepted. Miller afterwards told him that he had all the papers in the case from Koch, and witness had an abstract showing that the title was in Koch to the Barrett royalty. Nothing was said about anybody’s interest. They talked of the royalty. He told Miller that he would give $5,000 for this royalty, and Miller replied that he was going to advise his clients to take it, and he was sure that Bray would get it. Timms told witness that he laad sold the Barrett royalty and had got $5,000 in cash and a note for $2,500, and that he had sold one-half, and he showed witness the abstract showing title in Koch. Timms never told witness what interest in the Barrett royalty any of them was to get. He told witness that this royalty was deeded to Koch direct. He never liad any talk with any one about the fact that Koch held the title to the Garrett royalty as trustee. He was never advised of any declaration of trust, and there was none shown to him, either in McClintock’s office or anywhere else, or .any certificates of interest. "Witness saw in the abstract, bef ore he had paid $1,000 on the contract, that there was an assignment of an interest to Thompson, and the abstract showed that there was a deed from Dail to Koch, and the record showed that Timms had no interest whatever at that time, and he knew nothing of the assignment from Dail to Koch; found that later; had never seen the deed from Garrett to Dail until it was sent to him. At some discussion with Timms about the Thompson matter, Timms said he didn’t know Thompson had a deed. Witness told Timms the abstract sliowed it, and Timms explained that it was never delivered. Witness had understood that Lent and Mar-low had an interest in it, and that they would not sell any unless they sold it all. Timms had to give their money hack, and he had to do it on all of it, Garrett and Bridg’es both. He knew that Koch had an interest in it. The abstract showed that he had the royalty. He never talked to Koch about it. Witness categorically denied that he had any conversation in the office of McClintock, on the Sunday «veiling referred to by the attorneys, to the effect that Ldfit, Marlow and Koch each had a one-sixth; that what was talked about there was the amount of money it would take to buy these royalties, $15,000 for the Bridges, and $5,000 to be paid in cash for the Garrett royalty. He had the abstract examined by his counsel, Leopard & Alexander. The abstract showed the interest that Koch held. Counsel advised that the title was in Koch, and that a deed from Koch would make Bray’s title good. He denied that Timms told him that he had a half interest in the Garrett royalty, and denied that Mrs. Timms ever called him up and asked him to make conveyance to Timms or Mrs. Timms to any interest in the Garrett royalty. He thought that Timms went down to sell McClary some of the Bridges royalty. He was not to sell any interest in the Garrett royalty.. He told Timms all the time that he would not sell any of the Garrett royalty unless he sold it all. He positively denied that he had told any of the guests at 'Bramhall’s of the interest he had in the Garrett royalty. He didn’t tell them that he had $2,500 in it, because he had bought it for $5,000, and he denied that any such conversation took place there as the witnesses for Timms stated. Witness stated that he first agreed to buy the Garrett royalty from Timms on October 15, 1921. Timms said then that he didn’t have any interest in it, and, according to the abstracts, he didn’t have any interest in it. At the time he made the contract with Timms, Mr. Maupin was present. Timms stated that, if witness would buy the Garrett royalty, he (Timms) would go ahead and raise the money for the Bridges royalty and have it at Maysville on October 12 to take the Bridges royalty and stop these suits, and get from under it himself; that the Garrett royalty was the one that he was uneasy about; that he sold that himself direct. He was not uneasy about the Bridges royalty, because he never sold it. The contract was that he (Bra3^) was to put up $5,000 for the Garrett royalty and Timms was to procure Koch’s note and turn it over to Avitness, free of cost, to turn back to Koch, which he did, and Avitness delivered the note to Koch’s attorney, Scott Miller. Timms turned over to witness the abstract to look up the title. He said' that he had sold the Garrett royalty direct to Koch, and didn’t sell the Bridges royalty, and was not afraid of prosecution on the Bridges royalty, but he was on the Garrett royalty. Witness was to have the Garrett royalty — the full one-sixteenth of ■ production.

Bleish, a merchant and farmer, who went on Timms ’ bond, testified that Timms Avanted to sell him an interest in the Garrett royalty, and witness stated that he named Koch, Marlow and Lent as havúng an interest in the Garrett royalty, and he understood from Timms that Koch had practically all of it. Timms didn’t tell witness that he (Timms) owned any of it. He said that it would take $7,500 to handle it. Witness considered that that was to handle all of it. Timms didn’t tell witness who held the title.

Another witness stated that he had heard of Bray buying, or trying to buy, the Garrett royalty, and witness asked Timms if he was a partner of Bray, and Timms said, “No,” that he had no interest■ with Bray, that he (Bray) had made a good investment by getting in on the ground floor, and it would make him a rich man. Timms told witness that Bray had a half interest, or one-sixteenth royalty, or something to that effect. That was said at the October term ,of the court, 1921. Witness might be mistaken about his saying one-half, but he knows that Timms said Bray had a one-sixteenth.

Another witness, a farmer and director of the Pat-tons burg Bank, stated that he had a conversation with Timms in 1921 in regard to the Garrett and Bridges royalties. Timms was talking about selling witness some royalty, and spoke about Bray having bought some in the Garrett royalty for $5,000, and about selling the Bridges royalty for $15,000, and stated that, if he could sell that, he could pay off his note to the Pattonsburg Bank. AVitness understood that Bray had bought the Garrett royalty for $5,000. Witness understood that it was a one-sixteenth Bray had bought. He heard Timms say, in the presence of Bray, that he had sold to Bray a one-sixteentli interest for $5,000.

Another witness, vice president of the bank at Weatherby, testified that she had some talk with Timms about the Garrett royalty. She was to take some part of it, and went to Timms after his trip down to El Dorado, to see about getting it, and he said that he had sold it all and could not let witness have any. That ^as some time in December, 1921.

' ■ Another witness, who was president of the bank at Pattonsburg, stated that the bank had bought a note -of Koch from Timms. Timms had been arrested for obtaining the note under false pretenses, and witness was called on by Bray to go on Timms’ bond, and witness went on the bond with Bray. Koch was pleading fraud in obtaining the notes as defense to the bank’s suit. Timms was anxious to get things adjusted in some way, and said, in his conversation, that he had sold the Garrett royalty himself, but had not had anything to do with selling the Bridges royalty; that he was not afraid of any proseqution on the Bridges royalty. On October 5 Timms’ proposition was to let Bray take the Garrett royalty for $5,000 that Lent and Marlow had paid in, and that he (Timms) would procure the $2,500 note in litigation given by Koch to him. Timms said that that note really belonged to him anyhow at that time, and if Bray would take it he would secure the note and turn it in on the deal. This talk was about the time the case was set for trial at Maysville. • Timms was to have no interest whatever in the Garrett royalty. The case was set for trial on October 12. "Witness was informed that, if he would 'Continue the case, the money for the payment of the note would come from some one in Arkansas. The contract of October 12 was signed that morning. Witness did not see Koch or Marlow sign it. Lent and Bray were there, and witness saw Bray sign the contract, and knew Koch’s signature. The contract was read, and Timms was present at the time. Witness thought that, on the night of the 23rd of -September, at the bank, or on the 5th of October, when Bray and Timms were present, Timms said that Koch, Marlow and Lent each had a one-third of a one-sixteenth in the Garrett royalty. Timms never told witness that he had a half interest in the Garrett royalty. He never had any discussion with Timms and Bray relative to the syndication of the Garrett royalty, and witness had no agreement with Bray that he was to obtain a part of the interest in the purchase of the royalty. Neither witness, nor the bank of which he was president, loaned Bray any money on that account. Witness loaned Bray the money to purchase the interest McClary claimed to have in the Garrett royalty, which was to the amount of $750. Bray brought abstracts of the Bridges and Garrett royalties to the bank before he purchased the Garrett royalty. Witness saw the abstract, and it showed that the title was in Koch.

Timms, in rebuttal, testified that he never had any conversation with Maupin and Bray at Cameron in his life, and denied that he was present at Maysville at the time the contract of October 12 was signed between Bray, Koch, Marlow and Lent.

It was stipulated at the trial that Timms denied the testimony of the witness; Keeling, who had testified that he heard Timms say that he had no interest in the Garrett royalty, and had sold the same to Bray for $5,000, and had made a handsome profit.

There was testimony in the record to the effect that, when Bray was in El Dorado, after the purchase of the Garrett royalty, he sent telegrams to parties in Missouri, stating, in substance, that several wells had come in on the property, and that it looked like it was worth a million dollars.

While we have not stated in haec verba the testimony of the witnesses, we have endeavored to give the substance of the material testimony in the record, and believe that the above presents the salient facts upon which the trial court grounded its decree. The chancery court awarded Timms a half interest in the Garrett royalty, and directed Bray to execute a deed conveying to Timms an undivided one-half interest in the same. From that decree Bray appeals, and Timms also appeals from so much of the decree as awards him only an undivided half interest of the Garrett royalty instead of an undivided two-thirds interest.

1. The oral testimony in this case is in such radical and hopeless conflict we have found it most difficult to determine where the preponderance lies, but, after a painstaking consideration of the material testimony, the substance of which we have set forth above, we are convinced. that, even if it were • permissible to prove an express trust by parol testimony, the- appellee has not shown by a preponderance of the evidence that Bray holds an undivided four-sixths interest of the Garrett royalty in trust. The facts of this record demonstrate most cogently the wisdom of the rule of law, declared by our statute, that ‘ ‘ all declarations or creations of trust or confidences of any lands or tenements shall be manifested and proved by some writing, signed by the party who is, or shall be by law, enabled to declare such trusts, or by his last will in writing, or else they shall be void. * * *” Section 4867, Crawford & Moses’ Digest. See original opinion in Morris v. Nowlin Lumber Co., 100 Ark. 253; Harbour v. Harbour, 103 Ark. 273; Carpenter v. Gibson, 104 Ark. 32; Veazy v. Veazy, 110 Ark. 389.

This record discloses a controversy over a one-sixteenth royalty of the production of oil- and gas in eighty acres of land in the El Dorado oil fields, which land is exceedingly valuable. Bray holds the absolute record title to this Garrett royalty. But, notwithstanding the fact that Bray holds the title by deed absolute in form, Timms alleges that he has title from the original owner which he has never placed of record; that, having such title, he sold a half interest in the Garrett royalty to three other parties, and the title was placed in -one of them (Koch) as the trustee, to be held for himself and the other interested parties; that he entered into a contract with Bray by which he and Bray were to buy this half interest, and that he and Bray would then own the entire Garrett royalty, Timms owning a four-sixths of the entire royalty and Bray the remaining two-sixths. But none of these transactions, involving the ownership of royalty in gas and oil lands worth, according to optimistic telegrams in the record, perhaps a million dollars, were evidenced by writing. Timms offers oral testimony tending strongly to prove these transactions as set np in his complaint, bnt Bray denied that there were any such transactions, and also offers testimony which tends strongly to sustain his contention. Therefore, if oral testimony were allowed in such cases, sharp conflict would arise, making it most difficult to determine who had title to lands and interests therein. Hence we say the wisdom of the rule of law" requiring that all express agreements or declarations of trust or confidences in lands shall be evidenced only by writing.

2. But the statute also wisely provides that, where any conveyance shall be made of any lands or tenements by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by the above rule. See § 4868, C. & M. Digest Were the rule otherwise, a statute which was intended to prevent fraud would, in many cases, be a potent instrument of fraud. In Morris v. Nowlin Lbr. Co., supra, speaking of trusts which may arise or result by implication of law, we quoted from Mr. Pomeroy as follows: “The second great division of trusts, and the one whicb in this country especially affords the widest field for the jurisdiction of equity in granting its special remedies, so superior to mere recoveries of damages, embraces those which arise by operation of law from deeds, wills, contracts, acts or conduct of parties, without any express intention, and often without any intention, but always without any words of declaration or creation. They are of two species, ‘resulting’ and ‘constructive,’ which latter are sometimes.called trusts ex maleficio; and both these species are properly described by the generic term ‘implied trusts.’ Resulting trusts arise where the legal estate is disposed of or acquired, not.fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner. * * * If one party 'obtains the legal title to property not only by fraud, or by violation of. confidence or of the fiduciary relations, but in any other uneonscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.” I Pomeroy’s Equity Juris., § 155.

According to our statute, supra, and the above decisions and cases there cited, the parol testimony in this record was not admissible to establish an express trust, but it was competent and admissible to establish a resulting, or constructive, trust. According to Lord Chancellor Hardwick, in the case of Lloyd v. Spillet, 2 Atk. 148, trusts which arise by implication or operation of law are of three kinds: first, where the estate is purchased in the name ’of one person, but the money paid for it is the property of another; secondly, where a conveyance is made in trust, declared only as to part, and the residue remains undisposed of, nothing being declared respecting it; and thirdly, in certain cases of fraud where the transactions have been carried on mala fide, cited in Trapnall v. Brown, 19 Ark. 39, at page 48.

Applying the above familiar principles to the facts of this record', we do not discover anything in the evidence that would constitute Bray a trustee for Timms under the first or second of the above subdivisions. Timms did not furnish the money to pay for the Garrett royalty, the title to which was put in Bray, and the conveyance to Bray was not in trust declared only as to a part, but it was an absolute conveyance of the entire Garrett royalty — that is, the entire one-sixteenth of the production. If Timms be correct in his contention, then this is a case where Bray, knowing that Timms had the title to an undivided half interest of the Garrett royalty and that Koch, Marlow and Lent, having title to the other undivided half, entered into an agreement with Timms whereby they were to purchase the undivided half owned by Koch, Marlow and Lent for the sum of $7,500, and that Timms should furnish the purchase money to pay for the interest of Koch in the sum of $2,500 and Bray should furnish the money to pay for the interest of Marlow and Lent in the sum of $5,000, and that title to the whole should be taken in Bray, but that he should hold the four-sixths undivided interest thereof in trust for Timms. But, on the other hand, if Bra3r be correct in his contention, he purchased the entire Garrett ro3ralty of Koch, and, in order to enable him to effectuate the purchase, Timms agreed to procure and surrender to Koch, free of cost to Bray, the $2,500 note which Koch had executed to Timms, Bray paving the sum of $5,000, the residue of the entire consideration necessar3r to consummate the deal.

It was an entire transaction, and, if Timms be correct, Bra37' holds, not the entire Garrett royalty (a one-sixteenth of production), but an undivided four-sixths interest in trust for Timms; and Bray, In ignoring Timms’ interest and in refusing to carry out the trust, should be declared a trustee ex maleficio; for, if such be the correct view of the facts of this record, Bray, in law, would be as to Timms’ interest a trustee ex maleficio. So, in the final analysis of all the evidence, it occurs to us that the crux of this lawsuit is whether or not Bray should be declared a trustee ex maleficio, and required to convey to Timms an undivided four-sixths of the Garrett royalty— that is. a four-sixths of one-sixteenth, of the production. The^e is no middle ground. Bra3r, under the facts of this record, is a trustee, ex maleficio, of the entire four-sixths interest claimed by Timms, or else lie holds the entire Garrett royalty, a one-sixteenth of the production, absolutely in his own right and free from fraud.

Mr. Pomeroy says: “A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified .purpose, as, for example, the promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like, and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of .actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according- to his engagement.” 3 Pomeroy’s Equity Jurisprudence (4 ed.), § 1055, quoted in Moore v. Oates, 143 Ark. 328, at page 335.

The law is well established that trusts ex maleficio will be declared “whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealment, or other undue influence, duress, taking advantage of one’s weakness or-necessities, or through any other similar means, or under any ofhpr similar circumstances, which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interests.” See 3 Pomeroy’s Eq. Jur. §. 1053; Ussery v. Ussery, 113 Ark. 36; Barron v Stuart, 136 Ark. 481; Pharr v. Fink, 151 Ark. 305. To reach a solution of the vexed question as to whether or not Bray is a trustee ex maleficio has given us great concern. It is more a question of fact than of law. In determining it, of course, we must apply the well-recognized.rules for the production of evidence and the weighing of testimony. It is a well-settled principle that, while trusts resulting by operation of law may be proved by parol evidence, yet the courts uniformly require that such evidence be received with great caution, and that it be full, free and convincing. Colgrove v. Colgrove, 89 Ark. 183; Hunter v. Field, 114 Ark. 128. See also Nevill v. Union Trust Co., 111 Ark. 45.

’ In the comparatively recent case of Barron v. Stuart, supra, after citing numerous .authorities relating to trusts arising ex maleficio, the court'said, at page 489: “It is well settled by the above authorities that the parties seeking relief must establish the trust by clear and satisfactory evidence.”

In the case of Murchison v. Murchison, 156 Ark. 403-407, we said: “While it is necessary that the proof to establish a resulting trust should be clear, satisfactory and convincing, it is not essential that it be undisputed.”

Now, the deed to Bray being absolute in form, raises a strong presumption against the existence of a trust, and must be overcome, under the doctrine of our cases supra, by a greater weight of evidence than a mere preponderance. See also Avery v. Stewart, 136 N. C. 426. The parol testimony on behalf of Timms to establish a trust ex maleficio is met by .parol testimony on behalf of Bray tending to controvert it in every particular essential to establish' a trust in Bray ex maleficio. To say the least, there is a decided conflict in the parol testimony adduced on the issue as to whether or not there was a trust ex maleficio. Bray comes panoplied, not only with a deed absolute in form and with an abstract of title showing that his grantor, Koch, had the clear record title to the Garrett royalty — that is, to a one-sixteenth of production — but also with a contract of purchase upon which that deed was bottomed, which contract recites that the title Bray was obtaining was derived through a conveyance made by Timms to Koch, and that all the interest as conveyed in the deed from Timms to Koch should be conveyed to Bray, and also recites the assignment from Dail to Timms, and that Bray was to receive all the title which Garrett and wife conveyed to Dail by whatever conveyances necessary to properly assign said interest.

It is true that Timms denies that his deed of August 3,1920, to George B. Koch, was delivered to Bray, and Koch also denied in his testimony that he received the same, but we do not understand that Timms denies in his testimony that this contract was entered into, nor does he deny that he was fully cognizant of its provisions^ and there was testimony tending to show that he was present when this contract was entered into, and the only reason he didn’t sig'n it was because the record title was in Koch. Timms does not deny that he executed the deed of August 3, 1920. He only says that the same was not delivered to Koch, and Koch says the same was not received. But the fact remains, and it is undisputed, that this deed, the day after the 'contract was signed, was sent to Braj'' in a letter, by Scott Miller, together with copies of the lease and assignment of Garrett and wife to Dail, and of Dail to Timms, and of Timms to Koch, with directions to Bray to prepare the deed that he wanted Kocli to sign, and that it would be properly executed. There is no suggestion anywhere in the record that this deed was a forgery, or that it was surreptitiously placed among the other papers evidencing Bray’s title and by mistake delivered with those papers to Bray.

Therefore, after reading through all this immense record, we feel bound to conclude that, amid the decided conflicts and inconsistencies in the parol testimony, the written documents upon which Bray bases his title must turn the scales in his favor. Certainly, it cannot be said that the oral testimony upon which Timms relies to engraft a trust upon Bray’s deed is of that clear, satisfactory and convincing character exacted by the rules of evidence to establish a trust ex maleficio. If titles built upon documentary and record evidence could thus be overthrown, they would indeed rest upon very insecure foundations. The decree of the chancery court is therefore reversed, and the cause is remanded with directions to dismiss appellee’s complaint for want of equity, and to quiet Bray’s title in the Garrett royalty — that is, to an undivided one-sixteenth of the production of oil, gas, and other minerals upon the eighty acres of land heretofore described, and for sucli other and further proceedings, according to law and not inconsistent with this opinion, as may be necessary to protect and preserve.the rights of parties in interest.


author: Hart, J.,

text:
    Mitchell v. Wright Hill Special School District.
    Opinion delivered January 28, 1924.
    1. Schools and school districts — review op action op county board OF education. — Since the action of the county board of education in respect to changing the boundary lines of school districts are quasi judicial, and no remedy for review by appeal is provided by statute, certiorari is the proper remedy.
    2. Schools and school districts — certiorari—time for application. — In the absence of excuse for delay, a petition for certiorari to quash an order of the county board of education directing an election to determine whether certain territory should be created into a special school district, filed nearly twelve months after the order creating the district and six months after an ineffective appeal, was too late.
    3. Certiorari — discretion of court. — Certiorari, especially where used to review acts and decisions of special boards created by statute, issues only in the discretion of the court upon special cause shown.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OE FACTS.
    This was a petition to the circuit court for a writ of certiorari to quash an order of the county board of education directing an election to be held for the purpose of submitting to the qualified electors the question of whether certain territory should be created into a special school district.
    According to the allegations of the petition, appellants, who were the petitioners, are qualified electors and patrons of the public school in Common School Histriet No. 3 of White County, Arkansas.

      Appellees, who were respondents to the petition, are directors of Wright Hill Special School District No. 3 of White County, Arkansas, and said special school district is also made a defendant or respondent to the petition.
    On April 1, 1922, a petition was filed and presented to the county board of education by W. F. Bay and twenty others, representing themselves to be legal voters of certain territory described in the petition, and said county board of education was requested to call a special election in said territory for the purpose of submitting to the electors the question of whether said territory should be created into a special school district. The county board, of education on the same day issued its order calling a special election to be held at the Wright Hill Special School District, for the purpose named in the petition, on April 29, 1922. Notices of the election were duly posted on April 23, 1922. On June 5, 1922, B. F. Mitchell and forty other qualified electors of said Common School District No. 3 filed a remonstrance with the county board of education against the creation of Wright Hill Special School District No. 3.
    A demurrer was filed to said remonstrance, and it was dismissed by the county board of education without hearing any proof on the allegations thereof. On June 13,1922, the county board of education made and entered of record an order creating Wright Hill Special School District No. 3, embracing the territory described in the petition of the original petitioners, and declaring that said order was made upon the returns of said election held on April 29, 1922.
    The county board of education, in calling said special election, acted upon the face of the original petition and without proof of the facts therein set forth. The original petition calling for the creation of said special school district does mot contain the names of twenty qualified electors in said district. The above contains a recital of the allegations of the petition for the writ of certiorari filed in this case. It also appears that the order of the county board of education recites that the board found that the original petition was signed by not less than twenty electors of the territory, and that there was filed with said petition a map showing the amount of territory to be embraced in the proposed district and a written description of the boundaries of the same.
    It was therefore ordered that the special election should be held on the 29th day of April, 1922. The order also recites that due notice was given of the time and place of holding the election, and that the election was held as required by law.
    The order further recites that nineteen votes “for the law” were cast at the special election held on the 29th day of April, 1922, and that none were cast against it. The order also contains a description of the boundaries to be designated as Wright Hill Special School District No. 3 of White County, Arkansas, and recites that it shall be entitled to all rights pertaining to rural special school districts under the laws of the State of Arkansas.
    The order creating the district further recites that the remonstrance against the creation of said district was dismissed.
    An appeal was taken from the order of the board of education to the circuit court. On January 19, 1923, the circuit court dismissed the appeal. On June 9,1923, appellants, who were the remonstrants in the circuit court, filed their petition for a writ of certiorari, as above stated. On August 3, 1923, the cause came on for final hearing in the circuit court, and it was adjudged that the writ of certiorari should be dismissed.
    The case is here on appeal.

      Culbert L. Pearce, for appellants.
    1. The petition does not contain the names of twenty qualified electors of the territory, and the board therefore did not acquire jurisdiction. O. & M. Digest, $§ 8827-8842. Section 8828 is mandatory in its provisions. 116 Ark. 417; 106 Ark. 306.

      2. The returns of the election should have been delivered to the county clerk, as custodian, pending- the canvass of the returns. C. & M. Digest, § 8833. That was never done, and for that reason alone the results of the election were vitiated.
    3. In sustaining the demurrer interposed by the respondents to the testimony, the court erred in applying the law, and judgment should be entered here for the appellants. 99 S. E. 686, 5 A. L. E. 346; 26 E. C. L. 1060, 1061, 1062; Id. 1064; 2 E. C. L., Appeal and Error, 281; 4 L. E. A. 801; 113 Md. 603; 140 A. S. E. 445; 6 Am. & Eng. Enel. PI. & Pr., 438-439.

      John E. Miller, for appellees.
    1. The petition for certiorari was filed nearly twelve months after the order creating the district was entered by the county board' of education, and nearly six months after the dismissal of the appeal 'by the circuit court.
    2. The county board of education had no authority to act upon the petition of appellants for the creation of the common school district, after an election had been ordered and held upon a petition asking that the same territor}'- be formed into a special school district. 121 Ark. 581; 139 Ark. 1.
    3. The finding by the county board of education that the petition contained the signatures of twenty qualified electors of the territory affected, was incorporated in the order made on June 13, 1922, and is in accordance with the testimony. In a proceeding by certiorari to review the proceedings, the hearing thereon is not a trial de novo. 126 Ark. 125; 153 Ark. 188.
    4. The statute, C. & M. Digest, § 8833, providing that the returns of the election shall be filed with the county clerk, was enacted prior to the passage of act 234, Acts of 1919, creating the county board of education, and should be read in connection with the latter act. In any case, it is admitted that no fraud was committed and that the returns of the election were not changed in any way. Hence appellant’s objection in this respect are without merit. 43 Ark. 66; 92 Ark. 7Ó; 25 E. C. L. 772, §9.
   Hart, J.,

(after stating the facts). It is conceded by counsel for appellants that the order of the circuit Court dismissing their appeal was correct, under the ruling in Mitchell v. Directors of School District No. 13, 153 Ark. 50. In that ease it was held that the acts of the county board of education in respect to changing the boundary lines of school districts are gwasi-judicial, and that certiorari is the proper remedy to review such proceedings. The reason is that no appeal from the order of the board of education is given by statute. The order of the circuit court dismissing the appeal was made on January 19, 1923.

The petition for a. writ of certiorari was not filed until the 9th of June, 1923. This was nearly twelve months after.the order creating the special school district was made by the board of education. No excuse was offered for the delay. The creation of the special school district vitally affected the common school system, and those desiring to contest the legality of the formation of the district should have applied as soon as practicable to the circuit court to quash the order of the county board of education forming the special school district.

It is true that appellants first appealed to the circuit court, but the circuit court decided that .appeal was not the proper remedy, and on the 19th day of January, 1923, dismissed'their appeal. They make no excuse whatever for waiting until June before filing a petition for a writ of certiorari. Hence the circuit court properly exercised its discretion by dismissing the petition for writ of certiorari.

This holding is in accordance with the rule established in Johnson v. West, 89 Ark. 604, .and several other later decisions of this court. In the case of Johnson v. West, supra, a writ of certiorari to quash proceedings in the county court for laying out a new public road was asked upon the ground that the record failed to show that ten freeholders of the county petitioned for the road. The applicant waited nearly a year before applying for the writ, and this court held that the writ of certiorari should be denied. That case is peculiarly applicable here. It is not contended that the twenty persons who signed the original petition for the establishment of the special school district were not residents of the proposed district, but it is alleged that some of the petitioners were not qualified to sign the petition because they had not paid their poll taxes for that year, and therefore were not qualified electors in the sense that they were eligible to sign the petition asking for the special election.

So it will be seen that the writ of certiorari, especially in those cases where it is used for the purpose of reviewing the acts and decisions of special boards created by' statute, does not issue as a matter of right, but only in the discretion of the court upon special cause shown. The reason is that bodies like county boards of education exercise powers in which the people at large are concerned, and great public inconvenience might result from interfering with their proceedings, unless such action is taken as soon as practicable.

It follows that the circuit court properly quashed the writ of certiorari and dismissed the petition therefor.

The judgment of the circuit court will therefore be affirmed.