author:
Smith, J.
      Mehaffy, J.,

text:
    Federal Land Bank of St. Louis v. Ballentine.
    4-2635
    Opinion delivered September 26, 1932.

      J. R. Crocker and Casort $ Cronkrite, for appellant.
   Smith, J.

Appellant filed a complaint in the Grant Chancery Court on September 26, 1931, to foreclose a deed of trust executed to it by Virgil Ballentine and wife on May 1, 1922, to secure the payment of a $600 loan. The deed of trust described three forty-acre tracts of land. A decree foreclosing the deed of trust was rendered for the want of an answer on October 26,1931, and on January 16, 1932, exceptions to the commissioner’s report of sale under this decree were heard by the court. The court found that notice of the sale had been given for the time and in the manner required by law, and that the sale had been conducted in accordance with the notice and the decree of foreclosure. The commissioner testified that only one bid was received, this being a bid for $300 for the three tracts of land, which bid was made bj> appellant. The debt, as adjudged in the decree of foreclosure, was $676.93.

J. R. Matthews, a real estate dealer, testified that he was familiar with the market value of the mortgaged lands and other lands in that vicinity, and that Mr. Bal-lentine had asked him to sell the entire 120-acre tract of land for $700, but he had been unable to get an offer for it, and that three to four hundred dollars was the fair value of the land, inasmuch as the only house on it — a four-room Louse — had tumbled down and the cleared land presented the appearance of not having* been worked for several years and had g*rown up in brush.

No other testimony was offered, and the court made the finding that the bid was “wholly inadequate,” inasmuch as a $600 loan had been made on the property and the .judgment was for $676.93. This appeal is from the decree refusing to confirm the commissioner’s report of sale for the reason stated.

It is said in the briefs in explanation of the decree appealed from that the court did not confirm the report of sale for the reason that appellant’s bid did not equal the amount of the loan secured. This, we think, was error.

There is no intimation of fraud or other inequitable conduct on appellant’s part relating to the sale, except only that appellant did not bid the amount of the debt secured by the deed of trust.

The rule has long been established in this State that mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other inequitable conduct in connection with the sale, is, of itself, insufficient to justify the court in setting the sale aside and refusing confirmation. Of the numerous cases to this effect one of the latest is that of Free v. Harris, 181 Ark. 646, 27 S. W. (2d) 510, where we said: “In Martin v. Jirkovsky, supra, [174 Ark. 417, 295 S. W. 365], this court quoted from George v. Norwood, 77 Ark. 216, 91 S. W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171, the following: ‘When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it. * * * There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well-known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry, to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder tbe benefit of bids made in good faith, and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding than a 'judicial determination that such a bidder may be deprived of the advantage of his accepted bid whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial.’ ”

No brief has been filed on behalf of appellee, but the suggestion has been advanced in our consultation that the chancellor knew — as we and all others know — that the present is a period of great depression and for that reason the chancellor had the discretion to refuse to confirm the sale and to order a resale, and the case of Winfree v. Jones, 183 Ark. 679, 38 S. W. (2d) 28, is cited to support that view.

That ease, however, was not one in which the parties thereto were seeking to enforce contractual rights. It was a suit for partition of lands among the heirs who had inherited it, which land could not be partitioned in kind because of the large number of heirs, and a sale of the property had been ordered to effect the division. It appeared from the recitals of the decree ordering the sale that the chancellor had been induced to make this order by the statement of one of the heirs made in open court that he would see that the lands brought their fair market value. This the heir failed to do, and the lands were sold for a grossly inadequate price, the sale having been made on a day when twenty banks in the State had closed their doors.

The instant case is not one for partition, as was the case of Winfree v. Jones, supra, but is one to enforce the contractual right of having the mortgaged land sold in satisfaction of the mortgage debt. This relief had been awarded by the court and a sale ordered, and a sale was bad pursuant to the direction of this decree, and the question presented by this appeal is that of the right to have the report of the sale confirmed. We think that right exists and should be enforced. McGown v. Sandford, 9 Paige (N. Y.) 290; Pewabic Mining Co. v. Mason, 145 U. S. 349, 12 S. Ct. 887; Henderson’s Chancery Practice p. 862. Federal Land Bank v. Blackshare, 183 Ark. 648, 38 S. W. (2d) 30.

Now, the law is equally as well settled that, while approval of sales will not be withheld because of inadequacy of consideration, yet, when the consideration is gTossly inadequate, the court will seize upon slight circumstances of fraud or unfairness to afford relief. Union & Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1027, 5 S. W. (2d) 330. But that doctrine has no application to the facts of the instant case. There are no circumstances indicating fraud or oppression, nor is there a showing that the sale was for a price grossly less than the market value at the time of thevsale. The undisputed testimony is to the contrary. The only evidence in the record on the subject is to the effect that the land sold for about its present market value. It is true, of course, that the sum bid by appellant was just half the original loan, but, so far as the record before us discloses to the contrary, the loan may have been made for a higher per cent, of the market value than is customary. However, it is undisputed that the only house on the land was in a “tumbled down” condition, and the cleared land did not appear to have been worked for the past several years, and had been allowed to grow up in brush, and for these reasons the market value was placed at from three to four hundred dollars by the only witness who testified on the subject of value.

The report of sale should, therefore, have been approved, and the decree denying that right will be reversed, and the cause will be remanded with directions to that effect.

Mehaffy, J.,

(dissenting). I do not agree with the majority in holding that the chancellor should have confirmed the sale. The mortgage and note were executed in May, 1922. Payments of $21 each were to be made semiannually. This $21 payment included interest and a payment on the principal. The last payment was not due until May, 1955. The appellees paid for seven and one-half years. All the payments were made up to and including the payments of November, 1929. After the November, 1929, payment no other payments were made. The Federal Land Bank in its complaint alleged that there were three payments due and unpaid, and that, under the terms of the mortgage, it had on July 1, 1931, declared the entire debt due, and soon thereafter filed suit to foreclose the mortgage, making the mortgagors and Bruce Vanlandingham and his wife parties defendants. It was alleged the Vanlandinghams were cultivating part of the land. The defendants did not answer or appear, and the court on the 26th day of October, 1931, entered a decree for $676.93 and for costs, and provided that the whole amount should bear interest at the rate of 8 per cent, per annum. The note and mortgage provide that the defaulted installment shall bear interest at the rate, of 8 per cent, per annum, but they do not provide for 8 per cent, on the installment not due. In addition to the testimony of John R. Matthews, quoted in the majority opinion, he testified that the forty-acre tract he owned adjoining the Ballentine place was worth $5 per acre. If the Ballentine land was worth as much as the adjoining land, it would be worth $600 at a time when there was practically no market for land. This witness also testified that Mr. Ballentine was sick and confined to his bed with what he thought was tuberculosis six months ago when he was on the land. The majority opinion cites numerous authorities, but in my opinion none of them sustain the decision of the court in this case.

In the case of George v. Norwood, 77 Ark. 216, 91 S. W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171, no such conditions existed as exist now, but the court in that case said: “The evidence shows that the price bid was not inadequate.” In that case the only ground alleged for setting* aside the sale was inadequacy of price, and the court held that the price was adequate. This was the only question before the court. The court announced certain general rules about which there is no controversy. Another case cited is Martin v. Jirkovsky, 174 Ark. 417, 295 S. W. 365. In that case the court said: “If there had been any misfortune or any unseen thing that prevented him from being present, or if there had been any evidence of fraud on the part of the defendant or the purchaser, the chancellor would have been justified in setting aside the sale.”

The next case relied on is Free v. Harris, 181 Ark. 644, 27 S. W. (2d) 510. In that case the court said: “It will be seen that the only ground alleged for setting aside the sale and refusing confirmation was the inadequacy of the price for which the sale was made.” The court also said: “While it is alleged that the sale price was inadequate, the preponderance of the evidence is that such is not the case.”

Henderson, Chancery Practice, page 862, is cited. That author says: “It is the duty of the officer directed to make a sale of property under a judgment or decree of court to put it up for sale at such a time and under such circumstances as to make it bring the best price, without injuring the party entitled to the proceeds of the sale by delaying the payment of his debt. This duty must be carefully observed by the master, because if, in violation of his duty, he is proceeding to sell property, under a decree in chancery, at an improper time or under improper circumstances, when such sale must necessarily result in a sacrifice of the property, as during the raging* of a pestilence, or while there is a threatened invasion, which will destroy all chance of a fair competition by deterring bidders from attending the sale, it will unquestionably be the duty as well as the right of the chancellor to interfere.” The case of McGown v. Sanford, 9 Paige (N. Y.), referred to in the majority opinion, says in substance that tbe chancery court cannot arbitrarily suspend the ordinary operation of the laws. In that case the debt had been due more than two years, and the court said, of the mortgagee, she may be ruined by having her own property sacrificed by a forced sale upon execution, if she is deprived of the amount due to her for six months longer. In the case of Pewabic Mining Co. v. Mason, it appears that the sale was made after the defendants had prolonged the litigation for more than six years. The final decision in that case in favor of the sale was announced on Jan. 13, 1890, and the sale was not made until Jan. 24, 1891, more than a year after the decision. The defendants’ answer in that case was filed in 1884. The last-named decision does not in my opinion support the decision in this case. In fact, I have been unable to find any case that supports the decision in this case. This debt was contracted in May, 1922. Payments were made for seven and a half years, the last payment being made October 31,1929. It is a matter of common knowledge that farmers could not sell their crops in 1930 for as much as it cost to produce them. It is also a matter of common knowledge that the Federal Land Bank would not lend more than 50 per cent, of its value; therefore appellees’ land in 1922, when the loan was made, must have been worth $1,200 or more. At the time the sale was made, December 12, 1931, there was no market for land. It could not be sold for one-fourth its value. These things did not require any evidence. They are all matters of which the court will take judicial notice. “The court will bring to its aid and consider, without proof of facts, its knowledge of those matters of public concern which are known by all well-informed persons. * * * Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Other common statements of the rule are that the court will take notice of whatever is, or ought to be, generally known within the limits of their jurisdiction ; and that they ought not to assume ignorance of, or exclude from their knowledge, matters which are known to all persons of intelligence.” 23 C. J., p. 58 et seq.

A court cannot blind its eyes to the knowledge of a fact which is notorious throughout its jurisdiction.” Brass v. Texarkana & Ft. Smith Ry. Co., 110 Tex. 281, 218 S. W. 1040. There is no one of ordinary intelligence who does not know that since 1922 land values have gone down until in 1931 it was practically impossible to sell lands in this State for one-fourth of their value in normal times. Every person of ordinary intelligence knows that the price of cotton in 1930 was not sufficient to pay for the cost of production. If every person of ordinary intelligence knows these things, a court should know them and should take notice of them. The chancellor did know them, and he knew the conditions in Grant County, and knew land values in that county. He knew from the evidence that appellees paid promptly all payments due until 1930, and he knew, and this court knows, that in that year it was impossible for one to pay if he had to depend on raising money with which to pay by the sale of the crops he raised. In addition to the facts of which the court should take judicial notice, the evidence shows that, six months before the appellant made application for a confirmation of the sale, appellee was in bed sick with tuberculosis. If the facts in this case did not justify the chancellor in setting aside the sale and ordering another sale, the talk about the discretion of the chancellor is meaningless. There was no bid except that made by appellant. The appellant could not have been injured by a resale and to confirm the sale without giving the sick debtor another chance takes his property which is evidently worth in normal times $1,200 or more, and gives it to the money lender for a fourth of its value and at a time when the debtor was in bed sick. All'the authorities agree that the sale should be made so as to protect the interest of both parties. The debtor is as much entitled to the protection of a court of equity as the money lender. The interests of both should be considered. The opinion of the majority is to the effect that the case of Winfree v. Jones does not apply because that was a case of partition, and this is where a money lender is seeking to collect its debt. The equities in this case are stronger than in the case of Winfree v. Jones, supra. The principles announced in that case apply here. We there said: “In the instant case there was not only inadequacy of price, but it would he manifestly inequitable and unfair to confirm a sale for a grossly inadequate price when the sale was made at such a time that there was no market, and when the condition of the country was such, because of bank failures and drouth, that no one could obtain the money with which to buy. This court has always held that the trial court has and may exercise discretion in either confirming or rejecting judicial sales. This discretion, however, must he exercised according to fixed rules and not arbitrarily.” We further said in that case: “Under the conditions that existed at that time the sale was made, it is impossible to suppose that the property would bring anything like its fair value and inadequacy of price, together with fraud, unfairness, or any other unforeseen circumstances, which make it impossible to sell the lands at anything like a fair value, justifies the chancery court in refusing to confirm the sale. No one could foresee the bank failures and the financial distress following the same.” I suggest that the fall in the price of cotton from fifteen cents in 1929 to six cents in 1930 might be said to be an unforeseen circumstance, as also might the sickness of appellee. At any rate, under all authorities, these were facts of which the chancellor might take notice in exercising his discretion. I think the order of the chancery court in setting aside the sale is correct and should be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Knight v. Equitable Life Assurance Society.
    4-2640
    Opinion delivered September 26, 1932.

      G. T. Carpenter, for appellant.

      E. P. Mathes, for appellee.
   Smith, J.

Property belonging to appellants was sold under a consent decree of foreclosure pursuant to the following notice of sale:

“COMMISSIONER'S SALE.

“no. 4145.

“Pursuant to a decretal order, dated March 23,1931, and entered at page 385 of the chancery record No. 10, for the Western District of Craighead County, Arkansas, wherein the Equitable Life Assurance Society of the United States was plaintiff and John C. Knight, Wren-nie Knight, his wife, et al., were defendants, the said decree being for the sum of $3,300.01, with interest from January 7,1929, at six per centum per annum, and which decree had been credited with various sums paid thereon, as shown at page No. 385 of said chancery record No. 10, the undersigned will offer for sale at the east door of the courthouse in the city of Jonesboro, Arkansas, on the 29th day of August, 1931, the following described real estate, to-wit:

“All of lots 3 and 16 and the west half of lot 2 and the west half of lot 17 in Markle’s Addition to the city of Jonesboro, Arkansas.

“Terms of Sale: Upon a credit of three months, purchaser to give bond, with approved security, and a lien to be- retained on the property sold.

“Witness my hand, and the seal of said court, this 3d day of August, 1931.

“Spurgeon Clark,

(Seal) “ Commissioner.”

Exceptions were filed to the commissioner’s report of sale, and from the order of the court overruling these exceptions and approving the report is this appeal.

The exceptions to this report raised the following questions:

First: The notice failed to state the amount due under the decree at the time of the sale. It is stated in 2 Freeman on .Executions (3d ed.), p. 1641, in discussing “G-eneral Requisites of Notice of Sale,” that: “while it is usual to state the amount of a judgment or decree to satisfy which the sale is to be made, this statement in the notice of sale is entirely unnecessary.” Certainly, no prejudice resulted here to the appellants from the failure to state the balance due under the decree, as the notice did state the debt as adjudged, and that various sums had been paid thereon as_ shown by marginal indorsements on the record of the decree. Any interested person could have ascertained the amount of these credits by examining the record to which reference was made.

Second: It was objected that the description of the property was fatally defective for the reason that it did not give the county nor subdivision thereof in which the property was located. The property was described, however, as being in the city of Jonesboro, and this description definitely located the property as being in Craig-head County, and it cannot be material that a prospective purchaser should have known in which district of Craighead County, Jonesboro was located. It was said in the case of Woods v. Hayes, 85 Ark. 166, 107 S. W. 387, that: “the object of giving notice of sales under execution is to inform the debtor that his property is about to be sold and also to inform the public so that attendance of purchasers may be attracted and competitive bidding be induced. It necessarily follows from this that the desired object is accomplished if the description of the property be sufficient in the notice to identify it with reasonable certainty, so that no one may be misled thereby. Tiede-man on Sales, § 260; 2 Freeman on Execution, § 285b.5 ^

Third: Objection is made that the property is described as lots and parts of lots in Maride’s Addition to the city of Jonesboro, Arkansas, but that the block number of such lots is not given. This objection is answered when it is observed that no showing was made that this addition was laid off into blocks, and appellee asserts that it was not. We are unable, therefore, to say that the description employed does not correctly describe the property sold according to the survey of the addition of which it was a part.

Fourth: It is also objected that the notice “fails to state the hour when or within which the property would be sold.’] In 2 Freeman on Executions (3d ed.), § 285C, page 1646, it is said: “It would seem that the notice ought to name the very hour at which the sale will commence, so that persons having any inclination to attend will not be deterred from doing so by the fact that they might be kept waiting during all the business hours of the day. The authorities, however, sustain notices which declare that the sale will be made between certain designated hours, provided that both hours are in the business part of the day. It has also been held that if the statute designates the hours between which a sale may be made, they need not be mentioned in the notice of sale.”

In his excellent work on Arkansas Mortgages — at § 412 thereof — Judge Hughes says: “The statutes of Arkansas do not prescribe the time or place of foreclosure sale, nor the notice thereof that shall be given. The statute relating to notice of sale under order of court (Crawford & Moses’ Digest, § 4323) refers only to sale by the sheriff under execution and not to foreclosure sales. In foreclosure in equity, the time and method of giving notice and the date and place of sale are in the discretion of the court.”

Section 4317, Crawford & Moses’ Digest, prescribes the time and mode of sale under executions, and directs such sales to be had between the hours of 9 a. m. and 3 p. m. "While this section does not refer to sales by commissioners under orders of the chancery court, it is a matter of common knowledge that all judicial sales, unless otherwise ordered, occur between these hours; nor is it asserted here that the sale under review did not occur between those hours. On the contrary, it appears that, by an agreement made on the day of sale between the commissioner and the appellant, J. C. Knight, the sale was had at 10 a. m. on that day. We think, therefore, that the failure to designate the hour of sale in the notice thereof was not prejudicial. Henderson’s Chancery Practice, §§ 571-575.

Fifth: It is insisted that the notice was defective because it failed to describe the improvements on the lots. The character of these improvements does not appear, but it was stipulated that the rental value of the property was $27.50 per month. There is nothing in the record to indicate that any prospective bidder at all familiar with the property would not have known what those improvements were. There are States having statutes requiring notices of sale of real estate to describe the improvements thereon; but we have no such statute, and the general rule appears to be, in the absence of such a statute, that a description following the language of the instrument foreclosed is sufficient if the description identifies the real estate itself. 42 C. J., title “Mortgages,” page 195; Jones on Mortgages, vol. 3, § 2459; Austin v. Hatch, 159 Mass. 198, 34 N. E. 95; Guarantee Safe & Trust Co. v. Jenkins, 40 N. J. Eq. 451, 2 Atl. 13; Thompson v. King, 2 Mann. (Del.) 358, 43 Atl. 168; Wiltsie on Mortgage Foreclosure (4th ed.), vol. 1, § 643, page 826.

Sixth: The final objection to the confirmation of the report of sale is that, because of the alleged defects in the notice of sale, the property sold for a grossly inadequate price. The property sold for $3,368.86, which was the balance then due under the decree of foreclosure, and the plaintiff in the case was under no obligation to bid anything in excess of its debt, nor to bid that. Moreover, there is no showing that the price for which the property sold was in fact grossly inadequate.

The report of sale was therefore properly confirmed, and the Recree so ordering it is affirmed.


author: Humphreys, J.

text:
    Furqueron v. Jones.
    4-2625
    Opinion delivered September 26, 1932.

      Pratt P. Bacon, for appellant.

      Will Steel, for appellee.
   Humphreys, J.

Appellants, owners under warranty deed of the east half, east half of section 28, township 18 south, range 26 west, brought suit in the circuit court of Miller County to recover twenty-four acres thereof alleged to be in the wrongful and unlawful possession of appellee.

Appellee filed an answer denying he was in the wrongful and unlawful possession thereof, but alleging'; first, that the twenty-four-acre tract was a part of the west half of section 27, township 18 south, range 26 west, owned by him; and second, that if said twenty-four-acre tract was a part of the east half, east half of section 28, as alleged in appellant’s complaint, appellee and his predecessors in title had acquired title thereto by adverse possession thereof for more than seven years; and, third, that appellee, owner of the west half of said section 27, and B. J. Mills, who was a predecessor of appellants in title to the east half, east half of said section 28, entered into an agreement, in order to settle a dispute between themselves as to the correct line between sections 27 and 28, by which the wire fence built by Winham and Batt in 1912 should be the correct line between said sections and the dividing- line between their respective lands.

On motion the canse was transferred to the chancery conrt, and there tried npon the issues joined by the pleadings, as amended, and testimony adduced by the parties, resulting in a finding that the title to the twenty-four-acre tract in question was acquired by appellee and his predecessors in title by adverse possession for more than seven years claiming title thereto and also by oral agreement with J. B. Mills in 1929' establishing the wire fence as the division line between their respective lands. Based upon these findngs, the chancery court rendered a decree dismissing appellants* complaint for the want of equity, from which is this appeal.

It is next to impossible to determine from the testimony relative to the numerous surveys made in search for the government line between said sections 27 and 28 whether the twenty-four-acre tract in question lies in section 27 or in section 28 because the division lines fixed by the several surveys do not exactly coincide. This uncertainty as to the true division line and the dispute and controversy about it brought the case within the rule that owners of adjoining lands may orally agree upon a division line without the necessity of making conveyances the one to the other. Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 Am. St. Rep. 141; Schrader Mining & Mfg. Co. v. Packer, 129 U. S. 688, 9 S. Ct. 385. In the instant case, testimony was introduced pro and con as to an oral agreement settling and acquiescing in the wire fence built by Winham and Batt in 1912 as the true division line between said sections 27 and 28 by the adjoining owners of the east half, east half of said section 28 and the west half of said section 27. The chancellor found that said agreement was made and acquiesced in, and, after a very careful reading of the testimony bearing upon this point, we have concluded that the finding is supported by the weight thereof. No useful purpose could be served by setting out herein the testimony of each witness responsive to this issue.

Likewise, we agree with the chancellor that the weight of the testimony is to the effect that appellee and the predecessors in bis chain of title acquired title to the twenty-four-acre tract of land by adverse possession for more than seven years claiming title thereto beginning in 1912 Avhen Winham and Batt built the wire fence around said tract. After that date, appellee’s predecessors claimed the rents thereon and asserted title thereto for more than seven years before any question was raised as to the boundary line. It would extend this opinion unnecessarily to incorporate herein the testimony of the several witnesses responsive to this issue. Suffice it to say that, after a careful reading of their testimony, we are of the opinion that it fully supports, by the weight thereof, the finding of the chancellor.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Rose v. Pine Bluff.
    Cr. 3812
    Opinion delivered September 26, 1932.

      Reinberger & Reinberger, for appellant.

      jEvan W. Crawford, for appellee.
   Kirby, J.

This appeal is prosecuted by appellant from a judgment of conviction for violation of an ordinance of the city of Pine Bluff for peddling without having obtained a license therefor.

Paragraph 30 of § 1,300 of Lyle’s Digest of the ordinances of the city of Pine Bluff, reads as follows:

“It shall he unlawful for any person to engage in, exercise or pursue any of the following vocations without having first obtained and paid for a license therefor from the proper city authorities, the amounts of which license are fixed as follows, to-wit:

“No. 30. For peddling any other article not otherwise provided for, three dollars per month.

“No. 32. For peddling apparel, dry goods, notions, household goods, and any other article not otherwise specifically provided for, five dollars per month, or fifty dollars per annum. ’ ’

It appears from the testimony that appellant was selling cigars in the city of Pine Bluff for his firm, a wholesale house in Little Rock that had paid its regular occupation taxes there, his usual method being to carry a supply of cigars in a truck or car from Little Rock to call on his regular customers in Pine Bluff and sell them such merchandise as they needed to be delivered upon sending the orders back to Little Rock, except in cases where the merchant or dealer was out of some particular brand of cigars and requested that a box of that kind be left with him until the order could be shipped. In cases of a sale to new customers the salesman would solicit the business of the customer and upon receiving the order he usually left with him a box of the particular brand of cigars sold until the order could be shipped and delivered, no money being paid however for the partial delivery, the whole amount being collected for the shipment after delivery thereof, in the regular course of business. No sales were made except to retail dealers.

It is insisted that appellant in making the sales of cigars was only a traveling salesman or drummer, and not a peddler within the terms of the ordinance; and that ordinance was in effect but an attempt to levy an occupation tax upon the business of appellant’s wholesale house contrary to law.

The Constitution gives the General Assembly the power to tax hawkers and peddlers, and in pursuance of such powers the Legislature has defined the term as follows: “Whoever shall engage in the business of selling-goods, wares, or merchandise of any description, other than articles grown, produced or manufactured by the seller himself, or by those in his employ, by going from house to house, or place to place, either by land or water, to sell, the same is declared to be a peddler or hawker.” Section 9793, Crawford & Moses’ Digest.

No exception is made in this section of drummers or commercial travelers, but same applies to “whoever shall engage in the business of selling goods, wares or merchandise, etc.,” in the manner prohibited, and the majority is of opinion, in which the writer does not concur, that the method employed by the salesman in disposing of the cigars, delivering part of the merchandise sold at the time of the sale from stock carried with him for immediate use by the purchaser and to new customers until the whole order could be delivered, is such an engaging-in the business of selling- goods, wares and merchandise within the meaning of the statute as comes within its prohibition. See State v. O’Brien, 188 N. C. 452, 124 S. E. 848. The act construed in the case of State v. Fetter, 65 Conn. 287, 32 Atl. 394, relied upon 'by appellant is different from our own statute defining peddlers, and is of little weight in its construction.

Neither is this ordinance an attempt to charge an occupation tax within the meaning of the law, nor did it constitute a violation of the statute, § 7618, Crawford & Moses’ Digest, providing that no person, firm, individual or corporation shall pay a license fee in more than one city in the State, unless it maintains a place of business in more than one city, which was not the case here. We find no error in the record, and the judgment is affirmed.

McHaNBY, J., dissents.


author: Mehabfy, J.

text:
    Williams v. Williams.
    4-2624
    Opinion delivered September 26, 1932.

      Saxon & Warren, for appellant.
   Mehabfy, J.

Appellant filed suit in the Ouachita Chancery Court against appellee, alleging cruel treatment and adultery as grounds for divorce and asked for the custody of their eleven-year-old child. Appellee filed answer and cross-complaint in which the allegations in the complaint were denied and asked for divorce and alimony. The trial court granted appellant a divorce and the custody of the child, and held that appellee was not entitled to any alimony, but that she was entitled to one-half interest in the property described, subject to the burden of one-half the indebtedness against it.

Appellant prosecutes an appeal from that part of the judgment and decree of the court, finding that there was a partnership, and that appellee was entitled to one-half interest in the property.

There is some conflict in the evidence as to the ownership of the property, and it would serve no useful purpose to set it forth here. The chancellor found that the appellee was the owner of one-half of the property, and we cannot say that his finding is against the preponderance of the evidence.

The appellant testified that he bought the property where they lived, and borrowed $770 and paid for it; that the deed was made in his name; that he had added to the property from time to time and owed $700, and that he had bought one pressing machine for which he paid $400. Appellant^ testified in rebuttal that he owed $700 on the place and $300 on other debts; that the $1,250 mentioned by appellee as having been paid on property was not that much bnt was a little over $1,000. When asked about the partnership that his wife spoke of, he said: “She never did want the property. When we built, she did not want to. I had to give her father a job to get her to sign the mortgage.”

Appellee testified that they bought the property in 1923, and up to just before the suit was filed they both lived on it and operated a pressing and cleaning business. They separated in 1927. He begged her to come back and about March they paid $1,250 for the property, the same property that they bought in 1923. The interest ran it up to $1,250. That since 1923 she had actively taken part in the business at all times. When they talked about buying the property, appellant told her it would be for both of them. They were supposed to be partners in everything since they bought the property. Appellant does not dispute appellee’s testimony that he told her they were buying the property for both of them. There is no contradiction of her testimony that they were partners. Appellant was asked about the partnership, and he did not say they were not partners. The evidence shows that the house was a two-story building, and they lived in the upper story and conducted the business in the lower story. It is clear from the evidence that both appellant and appellee worked and conducted the business which resulted in the accumulation of the property in controversy. It is immaterial whether there was a partnership. If appellee and appellant, by their joint work, labor and management, acquired the property, a court of equity would, even before the recent statutes, protect the wife’s interest in the property. “A question arises as to the validity of the notes of Pillow to his wife. Are they valid ? At common law, contracts between husband and wife are void. But in equity a promise by the husband to his wife to repay her a loan bona fide made by her to him out of her own separate estate, upon Ms promise to repay, is obligatory and can be enforced. ” Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783; Munday v. Collier, 52 Ark. 126, 12 S. W. 240.

Tbe statute provides: “Every married woman and every woman wbo may in the future become married shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a feme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common law disabilities, such as the disability to act as executrix or administratrix as provided by § 6 of Kirby’s Digest, and all other statutory disabilities.” Section 5577, Crawford & Moses’ Digest.

The above statute removes all disabilities, statutory as well as common law. However, if there were no statutes removing disabilities of married women, a court of equity would not take the property earned by the labor of a married woman from her and give it to some one else.

The decree of the chancery court is sustained by the evidence, and is therefore affirmed.


author: Mehaeey, J.

text:
    Taylor v. State.
    Cr. 3814
    Opinion delivered September 26, 1932.

      Robert Bailey, for appellant.

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

The appellant was convicted of the crime of selling liquor, and his punishment was fixed at one year in the penitentiary. This appeal is prosecuted to reverse said judgment of conviction.

The first count in the indictment, the count on which appellant was tried, is as follows: “The Grand Jury of Pope County in the name and by the authority of the State of Arkansas accuses H. T. Taylor of the crime of selling liquor committed as follows, to-wit: The said H. T. Taylor in the county and State aforesaid, on the 15th day of October, 1931, did willfully, unlawfully, and feloniously sell and give away, and was willfully, unlawfully and feloniously interested directly and indirectly in the sale and giving away of ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits and a certain compound and preparation thereof commonly called tonics, bitters and medicated liquors, against the peace and dignity of the State of Arkansas.”

It is contended by appellant, first, that the evidence is not sufficient to sustain the verdict. J. A. Worsham and Fred Martin each testified that he bought whiskey from appellant. This evidence was contradicted by appellant and his witnesses, but whether the evidence of the State’s witnesses was true or not was a question for the jury and not for this court. It would serve no useful - purpose to set forth the evidence. Where the evidence is conflicting, as it is in this case, the verdict of the jury is conclusive. It is the settled rule in this State that the credibility of the witnesses and weight to be given their testimony are questions for the jury, and, if the verdict is supported by substantial evidence, it cannot be disturbed by this court.

“Under the settled rule in this State, the jury are the judges of the credibility of the witnesses, and where there is any evidence of a substantial character to support the verdict of a jury, we are not at liberty to disturb it upon appeal, notwithstanding we might believe it was against the weight of the evidence. ’ ’ Fields v. State, 154 Ark. 188, 241 S. W. 901; Cox v. State, 160 Ark. 283, 254 S. W. 542; Rhea v. State, 104 Ark. 163, 147 S. W. 463; Nelson v. State, 139 Ark. 13, 212 S. W. 93.

Appellant also contends that the testimony of Fred Martin was inadmissible, and that it should have been excluded. It is insisted that appellant was placed on trial in the case wherein J. A. Worsham was the prosecuting witness. There is nothing in the record tending to show this. Appellant was not charged with selling whiskey to Worsham. It will be observed from the indictment above set out that he was simply charged with selling whiskey without naming the party to whom it was sold. ' The evidence of Martin was therefore admissible.

Appellant says that the sale to Martin was not charged in the indictment. We have already shown that the indictment did not name the person to whom the whiskey was sold. It is true that Worsham’s name was on the indictment, and Fred Martin’s name was not indorsed on the indictment, but the question of Fred Martin ’s name not being indorsed on the indictment was not raised in the motion for new trial. The motion merely stated that his testimony was incompetent, and that the court should have excluded it. The statute requiring the names of witnesses to be indorsed on the indictment is directory. Wood v. State, 157 Ark. 503, 248 S. W. 568.

Appellant made no request to have the names of the witnesses indorsed on the indictment, and no request was made for a list of names of the witnesses. Appellant testified that he did not sell liquor to Fred Martin at the time Martin said he bought it or at any other time, but be did not claim either at the time Martin testified or at any other time that he could have other witnesses to contradict Martin. He would not he entitled to a new trial on account of Martin’s testimony without making some showing that, if a new trial was granted, he could produce witnesses to contradict Martin. This he did not offer to do. No other question is argued by appellant. The jury was properly instructed, there was substantial evidence to sustain the verdict, and the judgment is affirmed.


author: Kirby, J.,

text:
    Corning Bank & Trust Company v. Federal Land Bank of St. Louis.
    4-2620
    Opinion delivered September 26, 1932.

      Oliver & Oliver, for appellant.

      J. R. Crocker and C. T. Bloodworth, for appellee.
   Kirby, J.,

(after stating the facts). It is undisputed that the three notes sued on and for which the mortgages were sought to be foreclosed were made by the Mabrys to the appellee bank, and that its mortgages constituted a first lien upon the property. Nor is there any controversy about the Mabrys being indebted to the First National Bank, which released its prior lien and mortgage upon the lands involved, and voluntarily became a junior mortgagee subject to the lien of the appellee’s mortgages.

Although it is denied that appellant bank paid the taxes, and that the First National Bank paid the taxes alleged to have been paid, it was shown that such taxes were paid by the First National Bank, which claimed to have paid them to protect its interest in the lands under the junior liens, which is admitted it held. While a junior mortgagee who in good faith pays the taxes due to protect its lien may be subrogated to the State’s lien therefor and recover the amount paid, even as against the prior mortgagee, this principle of subrogation is administered, not as a matter of legal right, but to subserve the ends of justice and to do equity in the particular case; but, where such junior1 mortgagee pays the taxes over a three-year period, or furnishes the money to the mortgagor with which to pay them, the tax receipts being taken in the name of the mortgagor or in the name of the bank furnishing the money and paying the taxes as Ms agent without the senior mortgagee’s knowledge, meanwhile furnishing yearly supplies to the mortgagors for the production of crops and the payment of money to it on the junior mortgages, it has been held that such junior mortgagee is not entitled to subrogation to the State’s lien for such taxes as against the prior mortgagee, there being no disclosure of the true situation as would give notice to the senior mortgagee of the nonpayment of the taxes, giving it an opportunity to pay the delinquent taxes for its own protection. Federal Land Bank v. Richland Farming Co., 180 Ark. 442, 21 S. W. (2d) 954. Appellant knew the taxes were not being paid by the mortgagors, loaned them the money -with which to pay same, and paid such taxes, taking the receipt therefor in its own name as agent for the mortgagors without notifying the senior mortgagee of the delinquencies and giving it an opportunity to pay the taxes, as appellant regarded it was bound to do. It knew that it had advanced the money to the mortgagors with which to pay the taxes and also, from the receipts of the money paid by it for the taxes, that it was paying the taxes for the mortgagors as their agent as disclosed by such tax receipts. Of course, if the taxes had been paid by the mortgagors as it was their duty to do, there could have been no right of appellant, who claims to have paid the taxes, to subrogation to the State’s lien thereto, since it was the duty of the mortgagors to pay the taxes. The court did not err therefore in its decree denying appellant the right of subrogation to the State’s lien for the payment of taxes claimed to have been paid by it for the mortgagors to protect its junior lien.

Neither was error committed in refusing appellant a decree for money expended by it in replacing one of the houses on° a tract of the mortgaged land which had been destroyed by fire. It was not the duty of the junior mortgagee to make any such replacements, nor could it hold the senior mortgagee responsible for the cost thereof.

The decree is accordingly affirmed.


author: McHaney, J. Mehaeey, J.,

text:
    State ex rel Attorney General v. Anderson-Tully Company.
    4-2599
    Opinion delivered September 26, 1932.

      Hal L. Norwood, Attorney G-eneral, and John M. Bose, for appellant.

      Williamson <& Williamson, for appellee.
   McHaney, J.

This is a snit for back taxes brought by the State on the relation of the Attorney General against appellee. The complaint alleged that tax was due the State, county and school districts by appellee by reason of the gross underassessments for the years 1925 to 1929, inclusive, of approximately 24,000 acres of timber-lands belonging to appellee in Desha County. It is alleged that said lands possessed a value of $50 an acre or more during said period,- and that same should have been assessed at the average per cent, of value at which other real estate in said county was assessed for the same period, which is alleged to have been 30 per cent. It is further charged that the average assessment of appel-lee’s lands during said period was $4.17 per acre, which is only eight and one-third per cent, of the alleged value of $50 per acre, and is far below the basis on which other real estate in Desha County was assessed. It is further alleged that this assessment, same being between one-third and one-fourth as much as the average assessment of 30 per cent, applied to other property in the county, constitutes a fraud on the State, the county and the school districts in which the land is located.

To this complaint a demurrer was interposed on several grounds, the principal and only one necessary to be considered here being that the complaint does not state facts sufficient to constitute a cause of action within the provisions of act 281 of 1931. The court sustained the demurrer. Appellant declined to plead further. The complaint was thereupon dismissed for want of equity, and this appeal followed.

We think the trial court was correct in so holding. The provisions of act 281 of the Acts of 1931, page 951, are too plain to admit of construction. It is entitled “An act to Regulate the Collection of Overdue Taxes and for Other Purposes.” The first section of the act, and the only one of any importance in connection with this lawsuit, provides: ‘(That, after the assessment and full payment of any general property, privilege or excise tax, no proceedings shall hereafter be brought .or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud.” The act was approved April 1, 1931. It did not have any emergency clause, but the effective date of the act becomes unimportant, in view of the express language of the act as to cases which had not been finally determined prior to the effective date. By its own terms it provides that “no proceedings shall hereafter be brought or maintained,” etc. We think there can be no doubt that the word “maintained” as here used refers to the further prosecution of suits pending on the "effective date of the act, except they be based on actual fraud of the taxpayer as provided in the act. In other words, all suits pending at the effective date of the act are abated unless amended to charge actual fraud according to the terms of the act. Otherwise the word “maintained” would have no meaning. We think the Legislature intended and very definitely expressed its intention to accomplish two things: (1) to prevent the bringing of any new proceedings, and (2) to prevent the further prosecution of any proceedings which may have been pending at the effective date of the act, except under the terms of the act. The Legislature will be presumed to have used the words “brought or maintained” with some purpose in view, and the courts will ascribe such meaning to the language used as the words ordinarily convey. Appellant says that the word “hereafter” indicates that the Legislature did not intend to give any retroactive effect to the act, and that statutes are to be construed as having a prospective operation only unless the intention of the Legislature to make them operate retrospectively is especially declared or necessarily implied. Such is the correct rule many times announced by this court. But this is a statute relating to procedure, and it is admitted that statutes involving matters of procedure are applicable to pending litigation. Foster v. Graves, 168 Ark. 1033, 275 S. W. 653. Using the words “brought or maintained” in their ordinary signification, we have no doubt that the Legislature meant to prevent the bringing of back-tax suits, or maintaining such as were already brought, except under the terms of the act.

This brings us to a consideration of the question as to whether the complaint charged actual fraud of the taxpayer, and whether the proviso in § 1 of the act “that failure to assess taxes as required by law shall he prima facie evidence of fraud” is sufficient to put appellee on its proof and therefore to answer the complaint. We answer both, questions in the negative, as did the learned trial court. The complaint charged no actual fraud of the taxpayer. It did charge that its land was greatly underassessed. It did not charge that appellee assessed its own land, nor could it well have done so, as the law places no duty upon the taxpayer in connection with the assessment of real estate except to list his property with the proper assessing officials. The complaint does not charge that this duty was neglected. A careful review of the revenue laws of this State fails to reveal any duty imposed upon the taxpayer in connection with the assessment of his real property for taxation except as stated above. The whole duty in this regard rests upon officials of the tax collecting agency, officials of the county and State. The Constitution, art. 16, § 5, provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct.” The General Assembly has provided the manner in which the value of property is to be ascertained. Section 9874 et seq., Crawford & Moses’ Digest. See also act 129, Acts of 1927 and 172, Acts 1929. Section 5 of the latter act provides that for the year 1929, one of the years involved in this litigation, “the county clerk shall extend taxes against such property based on the assessed valuation thereof for the year 1928, plus the value of any new improvements located thereon and valued or assessed by the assessor as by law required, provided, however, that the provisions of this section shall not be construed to prohibit or restrict the county equalization board of any county in equalizing the assessed value of such property for the year 1929.” Not only does this constitute a legislative assessment of appellee’s lands for the year 1929, but it is a legislative finding of the correctness of the assessment for 1928 because the assessment for 1929 is made the same as that of 1928. The complaint in this case simply fails to allege any “actual fraud of the taxpayer.” The mere acquiescence of the taxpayer in an underassessment made by the assessing officials, no matter how grossly undervalued, would not constitute actual fraud of the taxpayer. To constitute fraud on his part would require something more than mere acquiescence. It would require some active participation in the fraud of the assessor, as, for instance, a conspiracy between them to undervalue the property. But it is said by appellant that a gross underassessment comes within the proviso and constitutes prima facie evidence of fraud, sufficient to put appellee on its proof and therefore to require an answer. We do not think so. There was no failure upon appellee’s part or that of the assessing officials of Desha County to assess appellee’s lands for taxes at the time and in the manner provided by law, even conceding an underassessment. The language of the act is that the fraud for which a reassessment will be permitted is the actual fraud of the taxpayer. If the law imposed the duty upon the taxpayer to assess his real estate, and he fraudulently or grossly underassessed it, the proviso in the act might have some application. In the case of real estate the law imposes no duty upon the taxpayer as to any valuation to be placed upon it, the only duty being to list his property with the assessing officials, and, if such officials make a gross under-assessment without any fraudulent procurement on the part of the taxpayer, it could not be said to be the act of the taxpayer in any respect.

It is suggested by counsel for appellant that act 281 is unconstitutional and therefore void. We do not agree with appellant in this regard, nor shall we undertake an extended discussion of the grounds upon which the unconstitutionality of the act is suggested. It is admitted by counsel for the appellant that the whole proceedings for the reassessment of property and for the recovery of back taxes are purely statutory, and without such authority no such action would be available. It is also conceded that the Legislature has the power to amend or repeal such statute. We have many times so held. State v. Standard Oil Co. of La., 179 Ark. 280, 16 S. W. (2d) 581, and cases there cited. We there said: “The power of the State to maintain snits such as the one at bar being purely statutory, the method and procedure prescribed by the statute must he followed as a condition precedent to its right to maintain such action. * * * ” The original back-tax statute of the State has many times been held to be constitutional, both by this court and by the Supreme Court of the United States. This being an act in the nature of an amendment must of course be held to be within the power of the Legislature to enact.

Other questions are discussed in the excellent briefs of counsel for both sides, but we find it unnecessary to discuss them. We have reached the conclusion that the trial court was correct in sustaining the demurrer to the complaint, and its judgment must be affirmed. It is so ordered.

Mehaeey, J.,

(dissenting). I do not agree with the majority in holding that act 281 of the Acts of 1931 is retroactive. The majority opinion holds that it was the intention to accomplish two things: first, to prevent the bringing of any new proceedings; second, to prevent the further prosecution of any proceedings which may have 'been pending at the effective date of the act, except under the terms of the act.

I think if the Legislature had intended that the act should be retroactive, it would have said so in so many words, and I think that the expression of the Legislature, “no proceedings shall hereafter be brought or maintained,” etc., has reference to future suits and not to suits already brought. Of course, the question is the intention of the Legislature, but that intention must be ascertained from the language used by the Legislature.

“It is said that a law will not be given a retrospective operation unless that intention has been manifested by the most clear and unequivocal expression. * * * The rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction.” Lewis-Sutherland on Statutory Construction, Yol. 2, 1157 et seq.

“Even though the Legislature may have the power to enact retrospective laws, a construction which gives to a statute a retroactive operation is not favored, and such effect will not he given unless it is distinctly expressed, or clearly and necessarily implied, that the statute is to have a retroactive effect. There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong, or imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot he otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of the statute.” 25 R. C. L. 787-788; 59 C. J. 1161; People v. Foreman, 296 Ill. 497, 129 N. E. 788; Walton v. Woodward, 73 Kan. 238, 84 Pac. 1028.

It is held by the majority, however, that the act is retroactive because it uses the expression “brought or maintained.” I do not think “maintained” has any such meaning here, and it cannot be said that it was so clearly the intention of the Legislature to make the act retroactive that there can be no doubt about it. The Legislature could have said, and if it intended that it probably would have said that this act shall apply to pending suits. I think it was .clearly the intention of the Legislature to provide that hereafter no suit should be brought and maintained except for acts of fraud, etc.

The act provides that it shall take effect, and be in force from and after its passage. That necessarily meant ninety days after the adjournment of the Legislature, and it was, in my judgment, not the intention of the Legislature that it should apply to pending suits.

A suit might have been pending at the time of the act, and might have been disposed of before ninety days elapsed. In that case, of course, it could not apply.

The word “maintained,” if it had been used alone, would have meant, “to begin and prosecute the action to final judgment.”

In a Connecticut statute, the Legislature used the word “maintained”, and it was contended that this made the statute retroactive. The Supreme Court of Connecticut, however, said: “We have therefore no question as to the constitutionality of a law which in direct and positive terms is made to act retrospectively; our duty is simply that of construction.

“One of the firmly established canons for the interpretation of statutes declares that all laws are to commence in the future and operate prospectively, and are to be considered as furnishing a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions. The rule is one of such obvious convenience and justice as to call for jealous care on the part of the court to preserve and protect it. Eetroaction should never be allowed to a statute unless it is required by express command of the Legislature or by an unavoidable implication arising from the necessity of adopting such a construction in order to give full effect to all of its provisions.” Smith v. Lyon, 44 Conn. 175; Burbank v. Inhabitants of Auburn, 31 Maine 590; Gunpper v. Waterbury Traction Co., 68 Conn. 424, 36 Atl. 806.

The act of 1931 provides that no proceedings shall hereafter be brought or maintained for the reassessment of the value of property after the assessment and full payment of any general property privilege or excise tax.

Section 2 of the act provides that all suits which may be brought under the provisions of the act shall be conducted by the Attorney General as other suits brought in the name of the State. '

When the whole' act is read, it seems to me to be perfectly clear that the Legislature did not intend the act to be retroactive. If it had, it would have used words that made it clear beyond doubt. It did not do this. On the contrary, section 2, which has reference to the suits provided for by this act, does not use the word “maintained” at all.

I think that the complaint stated a cause of action under act 281 of the Acts of 1931.

The second amendment to the plaintiff’s complaint not only alleged that the lands were worth $50' or more an acre, and that they were assessed for $4.17 an acre, hut it also alleged that the assessment was far below other similar property, and was slightly more than one-fourth as much as other real estate generally in the county was assessed; that the assessments were so grossly inadequate as to shock the conscience and constitute an actual fraud by defendant.

It further charged that the lands were timber lands, and located in the overflow area of the Mississippi River, and covering so vast an area that it made it difficult or impossible for the taxing officials to make any estimate of the value thereof, 'but that said officials were compelled to rely wholly on the representations of defendant as to said value, and all former assessments have been made on the faith of such representations. It might be that the complaint was such that the court should have sustained a motion to make more definite and certain, but certainly it charged fraud committed by the defendant, because it said that the taxing officials were compelled to rely and did rely on the defendant, and that defendant made the representation as to the value of the property, and fraudulently stated that it was worth less than one-fourth of its actual value, and that the taxing officials relied on' these representations, believing them to be true. This is certainly the meaning of the allegation, and I think is sufficient to charge actual fraud. Of course, whether these are true would depend upon the evidence.

This court has frequently held that in testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. Ellis v. First Natl. Bank, 163 Ark. 471, 260 S. W. 714.

“Contrary to the common-law rule, under our Code every possible intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever.” Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826.

Taking the facts to be admitted in this case, it is admitted that the defendant itself made false representations, and that it was impossible for the taxing officers to ascertain the value of the land otherwise, and that they relied on the representations made by the defendant.

Can it be said that these facts, if admitted, furnish no cause of action whatever ? I do not think so.

The complaint also alleged that appellant failed to assess its taxes as required by law. The act expressly provides that such failure shall be prima facie evidence of fraud. The act as construed by the majority does not mean anything. There could not be a suit maintained under it. I think if the Legislature had intended to repeal the law, it would have said so.

I think the complaint charges fraud on the part of the defendant, and that the case should be reversed and remanded for trial.

Mr. Justice Humphreys agrees with me in the views herein expressed.


author: 'Butler, J.

text:
    Hervey v. Hervey.
    4-2589
    Opinion delivered September 26, 1932.

      C. T. Carpenter and A. B. Caplinger, for appellant.

      Mardis & Mardis and F. E. Denson, for appellee.
   'Butler, J.

In May, 1929, the appellee and the appellant were husband and wife, and in a suit instituted by the former for divorce a decree was entered in her favor, and she was awarded the custody of their minor daughter with an allowance of $25 per month for the maintenance of the child. Subsequent to that date the appellee filed a number of petitions in the court praying for judgment against the appellant for a part of his personal and real property. These petitions have not been acted upon, and are not involved in this appeal. In these petitions the appellee complained that the appellant was in arrears in the payment of the allowance of $25 a month, and as early as September '9, 1929, the court found that the appellant was in default in the payment of the sums adjudged. From that date various supplemental petitions were filed by the appellee complaining of the failure of the appellant to pay the allowance due and various orders relative thereto were made by the court.

Finally, in the month of November, 1931, the court found that the appellant was in arrears in the payment of monthly maintenance in the sum of $195.65, including the month of August, 1931. On August 4,1930, in answer to one of the complaints of appellee, the appellant asked that the monthly maintenance be reduced. No order was made in this regard until the date of the order last above mentioned in which the monthly maintenance was reduced from and after .September 1, 1931, to $15 per month. The court made an order requiring the appellant to pay the sums in arrears or to execute a bond within thirty days from the date of the order conditioned that the sum would be paid on or before the first of May, 1932, and that, in default of payment or execution of the bond, the appellant be held in contempt. It appears that the appellant did not execute the bond or make payment of the sum in arrears, and later the court issued an order directing the sheriff to take him into custody and confine him in the county jail until further orders of the court. From the order made in November, 193ÍL, this appeal is prosecuted.

The appellant contends that the evidence taken at the hearing’ before the order appealed from was made disclosed the fact that his disobedience to the orders of the court was not wilful but because of his inability to pay the sums adjudged against him. He insists that because of this the order of the court holding that he be imprisoned was an abuse of the court’s discretion and should be reversed. It is true that the evidence discloses a state of facts calculated to excite sympathy for the appellant. He is a practicing attorney, and because of physical infirmities and a general falling off in business he had been able to earn but little for perhaps as long as two years before the date of the hearing. He has no other source of revenue except that derived from the practice of his profession. It is quite manifest that the condition of his health is very poor, and that this of itself would render him unable to successfully attend to his business.

If the above facts were all that the evidence disclosed, it would be quite evident that the order of the chancellor was not justified. This, however, is not all. It was shown that on various dates in the year 1930 and in the spring of 1931 the appellant had in the bank substantial cash balances, the smallest amount on hand in any one month from the first of August, 1930, until that date in 1931 being $488.21, and during the time of his default he had in the bank at one time as much as $1,165.21, and on the date of the hearing, when asked how much money he had in the bank at that time, he answered in effect that he did not know. In order to .justify Ms failure to pay the allowance, the appellant stated that most of the money in the bank at any one time belonged to Ms clients, and that his own personal account amounted to but a very small sum; that he had tried to borrow money to pay the appellee but was unable to do so. Whether or not the failure of the appellant to pay was in wilful disobedience of the order of the court or from inability to meet the payments was a question of fact, and the explanation given regarding the ownership of the cash deposited in appellant’s name shown to have been in the bank was unsatisfactory to the court, and we cannot say that the preponderance of the evidence is against his finding. In cases of this kind imprisonment can only be justified on the ground of wilful disobedience of the orders of the court. Ex parte Caple, 81 Ark. 504, 99 S. W. 830. But that question is for the court to determine from the evidence adduced. It will be noted that the appellant contented himself with the bare statement that most of the money he had on deposit in the bank was that of his clients, and he gave no explanation as to who those clients were and how much each had in the bank in his name. This would not have been difficult for him to show, and his failure to do so, in our opinion, justified the court in the conclusion reached.

The claim made by the appellant in the instant case is similar to that made in the case of East v. East, 148 Ark. 143, 229 S. W. 5, where the appellant attempted to explain his failure to comply with the order of the court by testifying that he had lost the money he had on hand at the time the decree was rendered, amounting to between two and three thousand dollars. His explanation, however, was not convincing to the chancellor, and on appeal we held that the latter was not bound to accept as true the appellant’s unsupported statement regarding the loss of his money.

The procedure in this case was substantially in con formity with that prescribed by our statutes guverning contempt cases, and it is fundamental that courts of chancery have the inherent power to enforce decrees awarding alimony, and that they may do so by punishing the recalcitrant party as for contempt. Ex parte Coulter, 160 Ark. 550, 255 S. W. 15. The decree of the chancellor holding that the appellant’s failure to pay did not arise from his inability to do so, but was in wilful disregard of the order of the court, not being against the preponderance of the testimony, must be affirmed. It is so ordered.


author: Butler, J.

text:
    Rogers v. Snow Bros. Hardware Company.
    4-2633
    Opinion delivered September 26, 1932.

      C. M. Martin, for appellant.

      Thos. W. Hardy and R. H. Little, for appellee.
   Butler, J.

Snow Brothers Hardware Company obtained a judgment against W. B. Rogers in the Ouachita Circuit Court on the 11th day of April, 1927. On the 7th of May, 1931,. they had an execution issued on this judgment with directions to the sheriff to levy the same on the interest W. L. Rogers had in a certain tract of land of which his father, John W. Rogers, died seized and possessed on the 6th day of May, 1931, and in which W. L. Rogers was assumed to own by inheritance an undivided one-fourth interest. After the issuance of the execution and on May 10, the appellants filed for record a warranty deed dated and acknowledged on December 7, 1926, by which W. L. Rogers undertook to convey all of the parcel of land to the appellants, A. M. Rogers, H. C. Rogers and W. H. Rogers, his brothers. When this deed was filed for record, this suit was instituted for the purpose of having said deed canceled and set aside and the interest of W. L. Rogers acquired by inheritance subjected to the satisfaction and payment of the judgment. Answer was duly filed, and the court, on consideration of the case as set forth by the pleadings and the testimony introduced by the parties, made 'the following finding of fact:

“That J. W. Rogers, deceased, indorsed his son’s, W. L. Rogers ’, note as accommodation indorser and paid it. The son agreed to either repay the money or waive his right to share with his brothers in two hundred and fifty acres of land in Ouachita 'County, at his father’s death. To carry this agreement into effect, he executed a warranty deed to his three brothers, A. M. Rogers, H. C. Rogers, and W. H. Rogers, for a recited consideration of $1,250, conveying a one-fourth undivided interest in the two hundred and fifty acres of land owned by his father and which he expected to inherit at his father’s death. He delivered this deed to his father, J. W. Rogers, in 1926, with the express understanding that if he should repay this money at any time prior to hi,s father’s death the deed should be returned.

“That W. L. Rogers failed to repay the money. Soon after the father’s death in May, 1931, the fonr defendants, being his sole surviving heirs, selected the elder brother, A. M. Rogers, and executed to him a power of attorney to administer and wind up the estate. A. M. Rogers, acting under his power of attorney, found the said deed among his deceased father’s papers and filed it on record. That this does not constitute an unconditional delivery of said deed, and that said deed is ineffectual, and that A. M. Rogers, H. C. Rogers and W. H. Rogers acquired no interest in said lands under and by virtue of said deed.

“That said defendants are claiming title by reason of this deed and not by inheritance. Therefore, the indebtedness from W. L. Rogers to the estate of J. W. Rogers, deceased, is not material, since there was no delivery, and they acquired no rights by reason of the deed.

“Neither can it be construed to have been intended as a mortgage securing indebtedness to J. W. Rogers, because said Rogers had the fee simple title to said land and could not legally hold a mortgage thereon — it would have been merged. Therefore, the status of W. L. Rogers to the estate of J. W. Rogers, deceased, is that of a common debtor, so far as the rights of the parties are here concerned. The deed to the grantees (defendants) fails. None was executed or could have been executed to J. W. Rogers, the fee owner.

“By force of plaintiffs’ execution they have a lien which should be foreclosed and sold by a commissioner of this court. ”

The court thereupon rendered a decree holding that the deed was null and void, and that the appellees ’ execution lien be foreclosed and the one-fourth interest of W. L. Rogers in the lands be sold by commissioner of the court to satisfy the judgment obtained by the appellants against him on the 11th day of April, 1927.

The facts as found by the chancellor cannot be said to be against the preponderance of the testimony, nor do the appellants complain of this, for indeed these- were the facts contended for by them. They insist, however, that W. L. Rogers, at the time of the execution of the deed and in the lifetime of his father, had snch an interest in his father’s lands that he conld sell or mortgage and that the deed executed by W. L. Rogers to his brothers constituted an equitable mortgage on his prospective interest in the lands which constituted a superior lien to the judgment lien of the appellees. It is true that the effect of our statute is that a warranty deed will convey an after-acquired title, but the essential character of the mortgage is that there must exist an indebtedness or liability between the parties which the conveyance is intended to secure. Farrow v. Farrow, 136 Ark. 140, 206 S. W. 134; Wells v. Moore, 163 Ark. 542, 260 S. W. 411.

“No conveyance can be a mortgage unless made for the purpose of securing the payment of a debt or. the performance of a duty, either existing at the time of execution or to be created, or to arise in the future. Hence, a deed which is absolute in its terms cannot be converted into a mortgage without proof of an obligation to be secured by it either in the form of an antecedent debt between the parties, or a loan, debt, assumption or liability, or contract for future advances contemporaneously made.” 41 C. J., § 97, p. 333.

It was admitted by W. L. Rogers in his testimony that he did not owe anything to either of the grantees in the deed of December 7, 1926, and there is no testimony to the effect that they had assumed any liability for him. Therefore, the deed was not a mortgage. Neither was it effectual, although in form a warranty deed, to convey to them his after-acquired title. In order for a deed of that description to convey the after-acquired title, it must be executed so as to pass the grantor’s estate if -at the time he had title, and to be so executed it is essential that there be a delivery. In any given case whether or not the deed was delivered is essentially a question of fact to be determined by the intent of the grantor as manifested by his acts or words or both. It is only where the acts or words unequivocally evince the purpose of the grantor that the question of delivery becomes one of law. Battle v. Anders, 100 Ark. 427, 140 S. W. 593. It is claimed that the delivery of the deed to John W. Rogers was in effect a delivery to the grantees, but this is not the case. Where the deposit of a deed is with a third person, it must be irrevocable, and, if it is subject to the control of the grantor, its delivery has no binding effect. Moore v. Moye, 122 Ark. 548, 184 S. W. 63; American Central Fire Ins. Co. v. Arndt, 129 Ark. 309, 195 S. W. 1075.

In the instant case the undisputed evidence is that there was no direction to John W. Rogers to deliver the deed to the grantees, nor was the delivery to the father an irrevocable act and the deed was subject at any time to revocation by the payment of the debt W. L. Rogers owed his father. We are of the opinion that the finding of the chancellor that there was no delivery is not against the preponderance of the testimony. It follows that the decree of the trial court is correct, and it is therefore affirmed.

Kirby, J., dissents.


text:
    Slayton v. State.
    Cr. 3798
    Opinion delivered October 3, 1932.

      E. G. Schoonover, J. G. Ashley and Baker & Gautney, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was convicted nnder an indictment charging him with having been an accessory before the fact to the mnrder of Manley Jackson. The indictment charged Lige Dame and Earl Decker with the commission of the mnrder, and that appellant had advised and induced its commission.

Decker was pnt npon trial as a principal, and npon his conviction was given a life sentence in the penitentiary. This judgment was affirmed on the appeal to this court, and the theory of the State’s case was outlined in the opinion affirming that sentence. Decker v. State, 185 Ark. 1085, 51 S. W. (2d) 521.

It was the theory of the State that both appellant and Decker had urged Dame to kill Jackson, and Dame so testified, but the only testimony to the effect that appellant and Decker had conspired Avith each other to this end was that of Dame, to the effect that they had each urged him to kill Jackson shortly before he did so, but Dame did not testify that either of these men was present when the other made that suggestion.

Dame testified that he killed Jackson in response to the suggestions and urgings of both appellant and Decker, made by each in the absence of the other, and through the promise of appellant to pay him a thousand dollars to kill Jackson, and through fear on his part that he would be prosecuted for arson by appellant if he did not kill Jackson.

Dame testified that he agreed with Decker to kill Jackson on a particular Saturday night, and their plan was as follows: Jackson was the night marshal of Pocahontas and would he on duty during the night. Decker was to take Jackson into custody at about 3 a. m. and detain him at or near the public square until the arrival of Dame in an automobile, and Jackson was then to be forced into the car and carried out in the country and killed. This plan was carried into effect, and, as Dame drove away from the place where Decker had held Jackson in custody, Decker gave Dame the pistol with which he had been armed. About two miles out of town the oar was stopped, and Jackson was ordered to get out, and as he did so he stated to Dame, just before he was shot by Dame, that he knew Dame was killing him on account of Dame’s wife. Jackson was shot four times, and all of the shooting was done by Dame.

After the shooting both Dame and Decker were arrested and confined in the jail at Marion, but in separate cells. Dame testified that while so confined Decker wrote a note on some cigarette paper, which was passed to Dame, reading: “I will still die before I will tell it,” • and Dame wrote on the reverse side of the paper: ‘‘ So will I,” and passed the paper back to Decker’s cell. This testimonjr was offered at the trial of both Decker and appellant, but the paper was not produced at either trial. This testimony was competent as against Decker upon his trial, as he was an actor in the transaction. But it was not competent evidence at the trial from which this appeal comes, and its admission against appellant constituted prejudicial error. The alleg'ed conspiracy to kill Jackson had then been carried out. Appellant was not present when these notes were written and passed. The law is definitely settled that, where a criminal deed is done and the criminal enterprise of the conspirators is ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirator. The case of Counts v. State, 120 Ark. 462, 179 S. W. 662, collects and cites a number of earlier 'cases to this effect. The later case of Hammond v. State, 173 Ark. 685, 293 S. W. 714, cites later cases to the same effect.

After Dame’s arrest he made several conflicting statements about the killing. Two of these were made after he had been taken to the penitentiary, one oral and the other written. In both the statements made in the penitentiary Dame charged appellant with having conspired with him to kill Jackson. These confessions made in the penitentiary were admitted in evidence over appellant ’s objection, and we think their admission was error for the same reason that the admission of the notes written on the cigarette paper was erroneous. Nor was it competent to support the testimony of Dame given at appellant’s trial by proving that Dame had previously made similar statements.

We are also of the opinion that the testimony tending to corroborate that of Dame is not sufficient to meet the requirements of the law in this respect. The -leading cases in this State on the sufficiency of the corroboration of the testimony of an accomplice were cited in the recent case, Roath v. State, 185 Ark. 1039, 50 S. W. (2d) 985.

The testimony, which is recited in the brief of the Attorney G-eneral as being corroborative of that of Dame connecting appellant with the commission of the murder, is to the following effect: Dame testified that appellant was the marshal of the town of Pocahontas, and that he protected him from arrest for selling liquor, and would advise him when raids were to be made on Dame’s house, where liquor was kept to be sold unlawfully. This information was conveyed by certain signals which appellant would make with his hands. It appears, however, that Dame had been frequently fined, and that he was under a penitentiary sentence for selling liquor at the time of the killing.

A former sheriff of the county testified that appellant was with him on numerous raids upon Dame’s home, and that they uniformly found no liquor. In this connection, the sheriff testified as follows: “Q. Do you remember at least on two occasions that when yon suggested that yon go and wait for Dame so that yon could catch him with liquor that John Slayton told yon the weather was bad, and that there was no use to worry getting him as somebody else would sell it anyhow? Do you remember that? A. I don’t think it was that way. I said that I had heard Mr. Slayton say on one occasion (interrupted). Q. I haven’t asked you what you heard, but did you ask him about laying out, and he suggested that you would take cold, and that somebody else would sell it anyhow? A. Yes, sir, I will say he did. Q. He did that once? A. Yes, sir. Q. Did he do it twice? A. I wouldn’t say so. Q. Still yon didn’t think there was enough in that to arouse your suspicion? A. No, sir.”

The warden of the penitentiary was permitted to testify that both Dame and appellant related the same details concerning the burning of a house belonging to appellant. This house was burned some months before the killing, and Dame testified that he had burned the house to enable appellant to collect the insurance, and appellant promised him that, if he would kill Jackson, he would not only pay him a thousand dollars for doing so, but would also pay the promised reward for burning the house. Appellant admitted that he had burned a house to collect the insurance thereon, but denied that Dame had burned it.

The penitentiary warden testified that appellant said to him that he had never had any business or social relations with Dame, whereas appellant admitted at his trial that on one occasion he bought a shotgun from Dame for $5, and later bought another shotgun from Dame, the last purchase being made in a store where Dame was trying to sell or pawn the gun.

A Mrs. Meyers testified in behalf of the State that she had frequently seen appellant at Dame’s home. All of these visits were not social, however, as the witness stated that on some of these occasions appellant had searched Dame’s home.

A witness named Tiner testified that he had seen Dame’s wife with appellant in the latter’s car on more than one occasion.

The present sheriff testified that appellant had asked him to give Dame an extension of time to pay the balance due on a fine, and that he had done so. Appellant testified that he had merely communicated the request to the sheriff at Dame’s instance.

An attempt was made to show that ill will existed between appellant and Jackson. This testimony was to the effect that Jackson was a prospective candidate for town marshal, the position held by appellant. Jackson had not, however, announced his candidacy.

Mrs. Maggie Taylor testified that she had frequently seen a large pistol in a holster at appellant’s home, and had seen it there as late as November 4 or 5,1931. Jackson was killed on the morning of November 8, 1931.

Deceased was killed with a .45 caliber pistol, and the father of deceased testified that on the afternoon of the day when his son had been killed appellant came to him wringing his hands and had stated that he was glad he had disposed of his .45 caliber pistol. This witness also testified that he later saw appellant, Dame and Decker talking together on a street of the town during the afternoon following the killing. Appellant expressed the opinion to deceased’s father that the killing had not been committed by a resident of the community, but by some one who had stolen an automobile which was recovered on the morning of the killing about sixteen miles from the scene thereof.

The deputy prosecuting attorney testified that he was present and heard the conversation between appellant and the father of deceased, and that appellant stated the murder was an awful thing, and that he was glad he had got rid of that .45 of his, and that he had let a man named Davidson have the pistol sometime prior to that. Dame had testified that he obtained the pistol with which he killed Jackson from Decker.

There was also testimony to the effect that appellant and deceased had disagreed about the disposition of fines in certain cases in which they had been jointly interested in making the arrests, and that appellant had said to deceased that they could not work together in view of the deceased’s contention, but the matter was submitted to the mayor, who took appellant’s view of the matter.

There are certain other circumstances not mentioned in the brief of the Attorney General which we regard as too unimportant to mention.

There are explanations of the circumstances above detailed which we do not enlarge upon for the reason that the circumstances related do not supply that corroboration which the law requires to sustain a conviction upon the evidence of an accomplice.

We affirmed the Decker case, swpra, upon the finding by us that the corroboration there recited was legally sufficient. That was a close case, but there were significant circumstances present there which are absent here, chief of which are these: The purchase by Decker shortly before the killing of cartridges similar to those found near Jackson’s body. The fact that Decker had told of the killing before it was known in Pocahontas. Decker’s remark to one Alphin that if he knew anything (about the killing) he had better keep his d-mouth shut, and certain other statements of a similar nature.

For the lack of sufficient corroboration, and for the error in admitting the testimony as above set forth, the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial.


author: Humphbeys, J.

text:
    Sibeck v. State.
    Cr. 3805
    Opinion delivered October 3, 1932.

      Robert L. Rogers, John G. Sheffield and Dillon & Robinson, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphbeys, J.

Appellant was indicted, tried and convicted in the Pulaski County Circuit Court, First Division, for the crime of subornation of perjury for procuring Lee Weber to swear falsely on May 15, 1931, to an affidavit substantiating- an account against said county in the sum of $4,034.33 for supplies sold to said county for its hospital, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this appeal.

Two alleged errors are urged by learned counsel for a reversal of the judgment.

First, it is argued that there is no legal evidence in the record to sustain the judgment of conviction, and, second, that the testimony introduced relative to other crimes was inadmissible and prejudicial to the rights of appellant.

(1) The record made by the State reflects that appellant, county judge, appointed Ralph Thomas county comptroller, Henry Hilliard, purchasing agent, and Mrs. Harrell as receiving agent for supplies sold for use in the county hospital; that appellant directed Hilliard to buy the major portion of meats and groceries for the hospital from Lee Weber; that, pursuant to the direction, supplies for the hospital during the months of April, May and June, 1931, were ordered from Lee Weber, who ran a small grocery store and meat market, to the amount of $12,204.17, out of a total of $15,096.04 purchased therefor ; that during the month of April, 1931, supplies were ordered from him in the sum of $4,034.33, out of a total of $5,149.68 purchased therefor; that the total ordered for the use of the patients and employees therein was much more than they could have consumed; that in the month of April, Lee Weber signed the name of the purchasing agent to the requisitions made upon him for the supplies, and likewise signed the name of Mrs. Harrell to many of the receiving slips for supplies; that items for milk were carried on Weber’s account as beans to cover up the source from which the milk was obtained; that Weber was a contributor of $4,000 or more to appellant’s campaign fund and a fund to influence legislation; that in July, 1931, the State auditorial department, pursuant to law, audited the accounts of Pulaski County, which disclosed the fact that appellant had allowed claims filed against the county by 555, Inc., and Kern-Limerick Company for large amounts of merchandise which had never been delivered to the county, and that, out of the amount received for the goods which had not been delivered 555, Inc., had contributed four or five thousand dollars to appellant’s campaign fund and legislative fund, and that Kern-Limerick Company had contributed either to said funds or to appellant as secretary of a county court fund, $2,500; that, after this discovery was made, 555, Inc., refunded to the county $15,400 and Kern-Limerick Company refunded $2,500; that the campaign and legislative funds derived by appellant in this manner amounted to more than $20,000.

We think, from the facts detailed above, the jury might have reasonably concluded that appellant adopted this plan or scheme to raise campaign or legislative funds by padding orders or requisitions issued on behalf of the county for merchandise; and to reasonably infer that Lee Weber falsified his April, 1931, account by including groceries and meats therein which he never delivered, by and with the approval and consent of appellant.

There is ample testimony in the record to sustain the verdict and judgment.

(2) The insistence that the testimony relative to' the transactions with 555, Inc., and Kern-Limerick Company was erroneously admitted in evidence because separate and distinct offenses is not sound. The testimony relative to these offenses tended to show a system adopted by appellant and his friends to defraud the county and to prove the scienter laid in the indictment. The offenses were similar in nature, all involving appellant and covering a reasonably short period of time, and were admissible under the rule announced in the case of Howard v. State, 72 Ark. 586, 82 S. W. 196, and reiterated in the case of Wilson v. State, 184 Ark. 119, 41 S. W. (2d) 764.

No error appearing, the judgment is affirmed.


text:
    Ward v. Ward.
    4-2650
    Opinion delivered October 3, 1932.

      Harney M. McGehee, for appellant.

      Pryor & Pryor, for appellee.
   Kirby, J.,

(after stating the facts). The right of sur-vivorship where the real property is held by the entirety has not been destroyed by our statute (Crawford & Moses ’ Digest, § 6232), and it has also been held that the character of such estate by the entirety is not changed by a divorce of the parties. Raulston v. Hall, 66 Ark. 305, 50 S. W. 690; 74 Am. St. Rep. 97; Davies v. Johnson, 124 Ark. 390, 187 S. W. 323; Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463; and Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. (2d) 21.

It is doubtless true, as appellant insists, that this holding is the minority rule, a great majority of the cases holding that the effect of a divorce of the parties is to sever an estate by the entirety and render the parties tenants in common, bnt onr holding has been consistently that a divorce has no such effect, our last case being Heinrich v. Heinrich, supra. As the court could have granted no greater relief, we do not consider it necessary to change our ruling here.

This being true, we do not find it necessary, in view of this holding, there being no cross-appeal, to determine what effect should have been given to the alleged agreement of a division of the property claimed to have been made by appellant and denied by appellee, since both admit that there was no separation of the parties in contemplation at the time of its being made, if it was made.

We find no error in the record, and the decree is accordingly affirmed.

Mehaffy, J., concurs.