author: Johnson, C. J., Kirby, J.,

text:
    Neal v. Gatz.
    4-3152
    Opinion delivered June 26, 1933.

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

      D. G. Beauchamp, for appellee.
   Johnson, C. J.,

(after stating the facts). The question presented for determination is, will mandamus lie to compel the State Land Commissioner to accept one year’s taxes, penalty and costs as the purchase price of a lot or parcel of land, where the record shows that there are two years’ subsequent taxes due thereon?

Section 10,088 of Crawford & Moses’ Digest provides the time and place of effecting sales on delinquent real estate.

Section 10,092 of Crawford & Moses’ Digest provides the manner in which the sale is effected in event the State becomes the purchaser, and reads in part as follows: “Immediately after such sale the clerk of the county court will make out and certify to the Auditor of State a copy of each of said sale lists as recorded in said book, together with an abstract thereof showing the total valuation of the property contained in each and the total amount of taxes, penalty and cost thereon in each.”

Section 10,112 of Crawford & Moses’ Digest provides the procedure when the sale becomes executed in the State, and reads as follows: “Immediately after the expiration of the two years allowed by law for the redemption of land sold for taxes, the clerk shall make out a certificate of sale to the State for all lands purchased by the State, as shown by the records of such tax sale in his office which have not been redeemed, and state therein the amount of taxes, penalty and cost thereon, and cause the same to be recorded in the recorder’s office of the county, and thereupon the title to all lands embraced in such certificate shall vest in the State, and the clerk shall immediately transmit such certificate to the Commissioner of State Lands, and thereupon the said lands shall be subject to disposal, as other forfeited lands shall be.”

It is apparent that the last-cited section of the statute effects title in the State only after the two-year period of redemption has expired.

When §§ 10,092 and 10,112 are harmonized and construed together, it is evident that it was the intention of the Legislature to require the county clerk to certify, in the certificate provided for in § 10,112, the total amount of taxes, penalties and costs accruing against the tract up to the date of the certificate, and not merely the one year’s taxes, penalty and costs which accrued on the date of the forfeiture. The certificate provided for in § 10,092 of Crawford & Moses’ Digest fully advised the State authorities of the amount of taxes, penalties and costs due for the year of delinquency, therefore the certificate provided for in § 10,112 would be unnecessary unless given the meaning and construction here given.

Prior to the execution of the certificate provided for in § 10,112 of Crawford & Moses’ Digest, the State has no title in or to delinquent lands, and all redemptions prior to such certificate must be effected through the county officials of the county wherein the land lies. It is the duty of courts to harmonize conflicting provisions of statutes, and it would be a strained construction to hold that the owner would be required to pay three years ’ taxes, penalties and costs if he redeemed his land immediately prior to the execution of the certificate provided for in § 10,112 of Crawford & Moses’ Digest, but could await until the next day and purchase from the State for one year’s taxes, penalty and cost.

If, through error or mistake, the clerk of the county court has failed to certify to the State Land Commissioner the full amount of taxes, penalties and costs accrued up to the date of the certificate provided for in § 10,112 of Crawford & Moses’ Digest, the State Land Commissioner would not be bound by such error or mistake.

It is the contention of appellee that, under the authority of § 4 of act 129 of 1929, it was the duty of the State Land Commissioner to accept the taxes, penalty and cost accruing on the lot or parcel of land for the year 1929 and as evidenced by the clerk’s certificate of June, 1930. Section 4 of said act reads as follows: “Sale of lots, blocks, divisions and subdivisions in or outside of cities and towns. All town and city lots and all lots, blocks, divisions and subdivisions that have been platted or sold as such outside of the corporate limit of any city or town, forfeited to the State for nonpayment of taxes or which may hereafter be so forfeited after being duly certified to the Commissioner, as now required by law, on and after January 1, 1930, shall be subject to private sales by the Commissioner for the taxes, penalties and costs charged against them as appears in the. certificates of the county clerk to such Commissioner, and upon presentation to him of the receipt showing that the full amount of the taxes, penalty and costs charged against such lands has been paid to the State Treasurer in kind, the Commissioner shall execute to the purchaser a quitclaim deed, as provided in § 3 of this act, for making deed to other forfeited lands.”

It is the contention of appellee that the following-language of § 4: “shall be subject to private sales by the commissioner for the taxes, penalties and costs charged against them as appears in the certificates of the county clerk to such commissioner, and upon presentation to him of the receipt showing that the full amount of taxes, penalty and costs charged against such lands, etc.,” makes it mandatory on the State Land Commissioner to accept one year’s taxes as the full purchase price for said land.

We do not so construe § 4 of act 129 of 1929. This section, when construed in reference to the other sections of the statute, clearly contemplates that the party who offers to purchase must bid and offer the total amount of taxes, penalties and costs accrued against the land up to the date of the certificate provided for in § 10,112 of Crawford & Moses’ Digest. The section of the act uses the word “certificates,” which indicates that the Legislature had in mind the certificate provided for in § 10,092 and also the certificate provided for in § 10,112 of Crawford & Moses’ Digest. In addition to this, section 4 of said act uses the words “full amount of taxes, penalty and cost, charged against said land.” The word “full” evidently had reference, to the total amount of taxes, penalty and cost which had accrued thereon up to the date of the certificate provided for in § 10,112 of Crawford & Moses’ Digest.

When § 4 of act 129 of 1929 is read in connection with §§ 10,092 and 10,112 of Crawford & Moses’ Digest, it is perfectly plain that, before appellee would he entitled to the writ of mandamus against the State Land Commissioner, he should pay, or offer to pay, the full amount of taxes, penalty and cost accrued against said lands, and not merely one year’s taxes, penalty and cost. This the complaint does not allege, and it therefore did not state a cause of action against the State Land Commissioner. The trial court therefore erred in overruling the demurrer, and, because thereof, the judgment is reversed and remanded.

Kirby, J.,

dissents from the majority opinion, holding the last act of the Legislature meaningless as not repealing or affecting the old laws with which it is in direct conflict prescribing the method for disposition of lands forfeited to the State for taxes.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Massachusetts Mutual Life Insurance Company v. Brun.
    4-3052
    Opinion delivered June 26, 1933.

      Ira D. Oglesby, for appellant.

      Warner & Warner, for appellee.
   Mehaffy, J.

In 1924 the Tancred-Browne Realty Company borrowed from the appellant, Massachusetts Mutual Life Insurance Company, $40,000 and executed and delivered to the appellant its promissory notes, and, to secure the payment of said notes, executed and delivered to appellant its deed of trust.

This loan was not paid, although a portion of it had been paid in 1929, but the borrower was unable to pay, and desired to renew this and borrow an additional sum, making the loan $45,000. The notes and a deed of trust were executed and delivered, the notes being signed by Fred Browne and Frank J. Brun as co-makers.

This loan was not paid, and on October 21,1932, the appellant filed its complaint in the chancery court against the Tancred-Browne Realty Company, Fred Browne and Frank J. Brun. The. realty company and Fred Browne made no defense, and a decree was entered against them for the amount of the notes, and for a foreclosure of the deed of trust.

Frank J. Brun answered, alleging that he was not personally liable on the notes, and that he was induced to sign the same through fraud, perpetrated by Mr. Bailey, agent of the appellant.

The chancery court entered' a decree in favor of the plaintiff against the realty company and Fred Browne for the amount sued for, but found that Bailey was the agent of the insurance company, and Brun was induced to sign the notes through fraud and trickery, and entered a decree in favor of Brun. This appeal is by the insuranee company to reverse the decree of the lower court finding- in favor of Brun.

There are but two questions for our consideration: First, was Bailey the agent of the lender? Second, was Brun induced to sign the note through the fraud and trickery of Bailey?

The chancery court found that Bailey was the duly authorized agent and representative of the insurance company, and that Brun, in signing the note, was acting solely on behalf of the realty company, and did not become personally liable.

The insurance company contends that Bailey was its agent for the purpose of collecting rent, but he had no authority to represent it in connection with the loan; that, in making the representations that it was alleged he made to Brun, he did not represent the insurance company and had no authority to make the representations.

The first loan, in 1924, was made a long while before Brun had any connection with the Tanered-Browne Realty Company, and there was still $32,000 of that loan unpaid. The loan made in 1929 was this same $32,000 and something more than $12,000 in addition to the $32,000. The application for the loan in 1929 was made to Mr. Pinson, of Dallas, Texas, who was in charge of the insurance company’s office at that place, and was not made to Bailey or through Bailey. The evidence shows that Bailey had said to the borrowers that they had better take it up with him because the insurance company would write to him about it anyway.

The notes and deed of trust were, sent by Pinson from the office at Dallas to Bailey at Fort Smith. "When Bailey received the papers, he. took them to the realty company to be signed on August 14. The mortgage was executed, and the notes were signed by Browne as secretary, and the deed of trust and notes were then taken to Brun in his office. Brun and a number of other witnesses who were present testified that, when Bailey came in he told Brun in substance that he, Brun, was president of the company, and that he would have to sign the notes and deed of trust as president of the company. Brun told him he was very busy and asked him to come back. Bailey said it would only take a few minutes, and pointed out the places to sign. Brun told Bailey that he would sign it as president, but would not become personally liable, and Bailey told Brun that that was what he was to do to sign as president and not to become personally liable. Brun did not have time to read the papers, and did not read them, but signed at the place pointed out by Bailey.

The insurance company had given power of attorney to release the former deed of trust, and had also given Bailey power of attorney to satisfy or release other deeds of trust. Bailey had been connected with the insurance company for 7 or 8 years. When this suit was filed, Bailey made the affidavit attached to the complaint, as local agent of the insurance company. He testified that he made a mistake in signing the affidavit that way; that he was only their rental agent.

The. insurance company furnished Bailey with forms for application for loans. The insurance company had no other representative in Fort Smith except Bailey. It called on him to make appraisement of property. Whenever a loan was made by the insurance company, the papers were sent to Bailey in order that he might have them executed and recorded. In fact, everything Bailey did in connection with this loan is shown by the evidence to have been done as a representative of the insurance company, and not as a representative of the borrower.

It is unnecessary to set out the testimony in detail on the question of agency. The court found that Bailey was the agent and representative of the insurance company, and not of the borrower. We think there is ample evidence to support the finding by the court that Bailey had authority to represent the insurance company.

It is next contended by the appellant that it was error to admit oral testimony to vary or contradict the terms of a written contract. This evidence was competent. It was not introduced for the purpose of contradicting or varying the terms of the contract, but was introduced for the purpose of showing that no contract was ever made whereby Brun became personally liable.

The testimony is olear and convincing, that, when Bailey took the papers to he signed, Brun was busy; that he stated that he would not sign so as to be personally liable; that he asked Bailey to come back when he was not so busy; that Bailey told him he was simply to sign as president, and that he would not be personally liable, and pointed out the place for Brun to sign; that Brun did not have time to read the contracts, did not read them, relied entirely upon Bailey, and signed where Bailey told him to sign.

The general rule as to the effect of signing a contract without reading, where fraud is charged, is stated in C. J. as follows:

“Of course, if the other party induces the signer to sign the paper without reading it, and to rely on his statement as to the contents, this may give the signer a right, if the statement was fraudulent, to avoid the contract as against him on the ground of fraud.” 13 C. J. 371; 6 R. C. L. 630, § 49.

This court has said: “So, in the present case, if the allegations of the answer are true, it does not lie in the mouth of the plaintiff to say that the defendant had no right to rely upon the representation that the contract contained the same terms as the former lease. Defendant alleges that he relied on the statement. If that is true, it caused him not to read the contract, and he is not estopped, under those circumstances, to plead his ignorance.” Stewart v. Fleming, 96 Ark. 371, 131 S. W. 955; J. I. Case Threshing Machine Co. v. S. W. Veneer Co., 135 Ark. 607, 205 S. W. 978; Conn. Fire Ins. Co. v. Wigginton, 134 Ark. 152, 203 S. W. 844; Catlett v. Bradley, 185 Ark. 260, 47 S. W. (2d) 15; Inter-Southern Life Ins. Co. v. Holzhauer, 177 Ark. 926, 9 S. W. (2d) 307.

In another recent ease decided by this court the court held that parol evidence was inadmissible, but the court said: “There is no charge of fraud or trickery in obtaining his signature to the note, but the allegation simply means that, although he signed the note, there was a contemporaneous oral agreement that he should not be bound, but that he signed for reference merely.” Randle v. Overland Texarhana Co., 182 Ark. 877, 32 S. W. (2d) 1064.

In the last case cited it was expressly stated that there was no allegation of fraud or trickery. In the instant ease there is the allegation of fraud, and the evidence was admissible.

In a recent case we said: “Learned counsel for appellants invoke the doctrine which has always been, and still is, adhered to by this court, that one who signs a contract, after opportunity to examine it, cannot be heard to say that he did not know what it contained. ’ ’

In support of this, numerous authorities are cited, and the court continues: “But in these cases there was no circumstance, tending to show that the signature of one of the parties to the contract was procured through fraud, or trickery, or inequitable conduct upon the part of the other party to the contract. These cases are clearly differentiated from the case at bar by the facts, because here there were circumstances of fraud, trickery, or inequitable conduct on the part of one of the parties to the contract which caused the. other party to sign the same under a mistake of fact, without reading the contract.” Galloway v. Russ, 175 Ark. 659, 300 S. W. 390.

“There is. a well-recognized exception to the rule that, a party is bound to know the contents of a paper which he signs; and that is where one party procures another to sign a writing by fraudulently representing that it contains the stipulation agreed upon, when, in fact, it does not, and where the party signing relies on the faith of these, representations, and is thereby induced to omit the reading of the writing which he signs. It is well settled that a written contract which one party induced another to execute by false representations as to its contents is not enforceable, and the party so defrauded is not precluded from contesting the validity of the contract by the fact that he failed to read it before attaching his signature.” Tanton v. Martin, 80 Kan. 22, 101 Pac. Rep. 461; Willey v. Clements, 146 Cal. 191, 79 Pac. Rep. 850.

The appellee Brun alleged fraud and trickery, and there was sufficient evidence to justify the chancery court in finding in favor of Brun.

The decree of the chancery court is affirmed.

Kirby, J., dissents.


author: McHaney, J.

text:
    Home Life Insurance Company v. Keys.
    4-3056
    Opinion delivered June 26, 1933.

      T. D. Wynne, for appellant.

      Ovid T. Switzer and Y. W. Etheridge, for appellee.
   McHaney, J.

Appellant, Home Life Insurance Company, on January 1, 1924, issued its group, policy of life insurance No. 26595 to the Crossett Lumber Company and its certificate No. 847 to Claud Keys, an employee, in which it insured his life in the sum of $1,200, and in which said certificate appellee is named beneficiary. Said certificate contained, among others, this clause: “Any employee insured under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Home Life Insurance Company.” The master policy provided: “The company will issue to the employer for delivery to each employee insured hereunder an individual certificate showing the insurance protection to which such employee is entitled, the beneficiary to whom payable, together with a statement that, in case of the termination of the employment with the employer, for any cause whatsoever, such employee shall be entitled to have issued to him by the company, without further evidence of insurability, and upon application to the company within thirty-one days after such termination of employment and upon payment of the premium then applicable to the class of risk to which he belongs and to the form and amount of the policy at his attained age (nearest birthday), a policy of life insurance in any of the forms customarily issued 'by the company, except term insurance, in an amount equal to the amount of his protection under this policy at the time of termination. Upon termination of active employment, the insurance of any discontinued employee under this policy automatically and immediately terminates, and the company shall be released from any further liability of any kind on ■ account of such person unless an individual policy is issued in accordance with the above provision.” It was further provided therein: “On receipt by the company at its home office of due proof that any employee insured hereunder has become wholly and permanently disabled by accidental injury or disease, before attaining the age of sixty years, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, the company will waive the payment of each premium applicable to the insurance on the life of such disabled employee that may become payable thereafter under this policy during such disability.” The obtaining of this insurance by the Crossett Lumber Company for its employees was a gratuity on its part, it paying all premiums and not making any deduction from any employee’s wages therefor. This policy was kept in force and effect until and including December 31, 1930, when it was canceled by direction of the Crossett Lumber Company. Claud Keys was stricken with tuberculosis and suffered from pellagra, so that he was compelled to quit work at noon October 12, 1929, from and after which, date he was wholly and permanently disabled from disease, and was “permanently, continuously, and wholly prevented thereby from performing any work for compensation or profit,” and from which he died March 9, 1931. He made no application for another policy under the provisions of the clause first above quoted, and he made no proof of disability, although he was clearly entitled to a policy without payment of any premiums from the date of his disability, October 12,1929. The appellant, Central States Life Insurance Company is the successor to the Home Life Insurance Company, having reinsured its business effective April 13, 1931. Proofs in support of the claim were sent appellant, Central States Life Insurance Company, under date of May 5, 1932, payment demanded and refused, and this suit followed. Each party asked an instructed verdict and no other. The court granted the prayer of appellee.

Appellant’s defense, as stated by counsel, is as follows: “The defense relied on below and renewed in this court was and is that the group policy and the individual certificate were not in force and effect on and after the expiration of the grace period of thirty-one days beginning December 1, 1930, because the monthly premiums to be paid on the first day of each succeeding month were never paid after the December, 1930, payment was remitted. In other words, the group policy, being canceled at the instance .of the Crossett Lumber Company, effective at midnight December 31, 1930, no premiums subsequent to those payable on the first day of December, 1930, were ever paid, in consequence of which the group policy in question, together with the individual certificate issued to Claud Keys, did not continue in force after the grace period expired on January 1, 1931.”

We cannot sustain this defense. Appellee’s rights do not depend on the payment of the premiums by the Crossett Lumber Company after her husband* Claud Keys, became totally and permanently disabled on October 12, 1929, because of the total and permanent disability clause above quoted, although the employer continued to pay the premiums on Claud Keys’ certificate for more than a year after no premiums were required thereon if proof had been then made. If proof of disability had been made at any time prior to January 1, 1931, there could and would be no question of appellee’s right of recovery. The question presented for decision is, Was the making of proof of disability a condition precedent? We hold that it was not, and that we have already so held in Sovereign Camp W. O. W. v. Meek, 185 Ark. 419, 47 S. W. (2d) 567. There the clause was: 4 4 4 If such member, while younger than sixty years of age, and while the certificate is in full force and effect, has suffered bodily injury, through external, violent or accidental means, or by disease, and shall furnish satisfactory proof to the society that he is and will be permanently, totally, continuously and wholly prevented thereby for life from pursuing any and all gainful occupations or performing any work for compensation of value,’ he shall be entitled to the payment of one-half the face amount of his policy. ” We there said: 4 4 Under our construction of paragraph 12 of the certificate quoted above, the existence of total disability during the life of the certificate was enough to create liability. Under a correct interpretation of the meaning of paragraph 12, the obligation of appellant rested upon the total disability of appellee during the life of the certificate, and not upon the receipt of the proof of disability by appellant. A similar clause or paragraph in an insurance policy was thus construed by the Circuit Court of Appeals, Minnesota Mutual Life Ins. Co. v. Marshall, 29 Fed. (2d) 977, and approved by the Supreme Court of the United States in the case of Bergholm v. Peoria Life Ins. Co. of Peoria, Ill., 284 U. S. 489, 52 S. Ct. 230. It will be observed that no time was fixed in the paragraph construed for making the proof of total disability.” In Minnesota Mut. Life Ins. Co. v. Marshall, cited supra as 29 Fed. (2d) 977, the court speaking through Judge Martineau, said: "However much the legal mind may differ as to the meaning of these provisions, the ordinary layman would construe them to mean that, in the event he became disabled before, his premium fell due, his insurance would be continued until his disability was removed or until his death. That is the natural and reasonable construction to he placed upon the language used in this policy. Any other construction to my mind, would he contrary to the full purpose of the contract and deprive the insured of one of the principal benefits of his policy. The right of the insured to have his premiums discontinued during disability is one that he had paid for. To make its operation depend upon the time of proof of disability, and not upon the time of disability itself, which was the real thing that he was protecting himself against, renders the provision of the policy under the construction inoperative and the right of no value.”

We think this reasoning logical and unanswerable, and is in accord with sound justice. The case of Bergholm v. Peoria Life Ins. Co., supra, is not in point as the language of the disability clause is different, so found by the Supreme Court, which distinguished it from the Minnesota Mutual case which it cited and inferentially approved.

The court correctly instructed a verdict for appellee.

Affirmed.


text:
    School District No. 4 v. McCrary.
    4-3142
    Opinion delivered June 26, 1933.

      Jno. B. Thompson, for appellant.

      Trimble, Trimble & McCrary and Chas. A. Walls, for appellee.
   McHaney, J.

Appellant brought this action to recover judgment in the sum of $387.86 against appellees, who are the sureties on the county depository bond of the now defunct Lonoke County Bank, made such by proper order of the county court. The bank was found to be insolvent, and was taken over by the Bank Commissioner for liquidation in December, 1931, with the various county and school district funds on deposit therein, including that of appellant. On January 4, 1932, the county court made and entered an order placing the matter of collecting and recovering all said funds secured by the depository bond in the hands of the prosecuting attorney of that district, who was ordered to take all leg’al steps necessary in recovering same. Thereafter on March 7, 1932, the prosecuting attorney, with the approving order of the county court, accepted a deed of trust, executed by appellees, conveying to the county valuable lands and properties as security for the payment of all said depository funds, and in consideration therefor it was agreed that payment would be extended to December 15, 1932. This agreement was approved by order of the county court, made and entered that date. On December 5,1932, appellees paid to the county $1,000 in cash and asked for and obtained an extension to December 1, 1933, in which to make payment, an appropriate order being made by the court to this effect.

Appellees moved to dismiss the complaint on the ground, among others, that the obligation was not then due, and that the suit was prematurely brought. All the facts above mentioned were set out in the motion and copies of all orders exhibited thereto! The court sustained the motion, dismissed the complaint, and this appeal is from that order.

Appellant states its contention for a reversal of the judgment as follows: “It is the contention of appellant that the county court had no jurisdiction or authority to make the order relied on by appellees herein, and that such order is not binding on appellant, and said order being made without authority is void and is properly attacked by this suit.” This contention cannot be sustained. Section 28 of article 7 of the Constitution, and § 2279, Crawford & Moses’ Digest, confer such authority as was here exercised upon the county court, and we think that the question is ruled adversely to appellant’s contentions in Board of Education of Lonoke County v. Lonoke County, 181 Ark. 1046, 29 S. W. (2d) 268. It was there held that the county court was vested with power and authority to enter into a contract to employ special counsel and agree upon reasonable compensation to be paid pro rata from the several county and school funds to enforce collection against the sureties on another depository bond of an insolvent bank. It would seem to follow as a necessary consequence that, if such court has the power to make such a contract as that, it would have the power to contract for security and fix the time of payment, or to extend the same, in the absence of any fraud or collusion between the court and the bondsmen, and there is no such allegation here. On the contrary, the court orders show they were made because of the distressed financial situation, making it impossible for the bondsmen to secure money to satisfy the bond. We think the court, in taking the deed of trust, acted for the best interests of the county and its schools, and in accepting the $1,000 and extending the time for payment, represented the best interests of the county and the. school districts, including appellant, for to have said with Shylock, £<I will have my bond,” and demanded an immediate sale of the property covered by the trust deed, would have meant a sacrifice thereof, for it is well known that property at that time had very little market value, if any.

The circuit court correctly dismissed appellant’s complaint, and its judgment must be affirmed.


author: Johnson, C. J.,

text:
    St. Louis Southwestern Railway Company v. Missouri Pacific Railway Company.
    4-3066
    Opinion delivered July 3, 1933.

      Lamb & Adams, for appellant.

      R. E. Wiley and Henry Donham, for appellee.
   Johnson, C. J.,

(after stating the facts). It is perfectly clear from the Krebs contract of May 13, 1916, that all the right and interest of appellant expired at the expiration of fifteen years from the date thereof, to-wit: May 13, 1931. It suffices to say that appellant enjoyed the full benefits of this contract up to the date of its expiration without let or hindrance by appellee or its predecessor in title, the Argenta Terminal Company.

It is next insisted that the contract of date April 20, 1916, between the Argenta Terminal Railroad Company and the St. Louis Southwestern Railway Company created covenants and conditions which ran with the land, and therefore appellant has a perpetual right to use this trackage without compensation. We cannot agree to this construction of the contract. We think that it is fairly inferable from this contract that it was the intent of the parties to create only a personal liability and responsibility thereunder. This, because the parties stipulated that a bond in the sum of $15,000 would be executed by the Argenta Terminal Railroad Company in favor of appellant guaranteeing the performance of the terms and conditions of this contract. If there has been a breach of this contract by the parties, then appellant would pursue its remedy against this bond.

In 22 R. C. L., at page 1094, it is said:

“Where a contract for a traffic arrangement, made between two railroad companies, declares that the contract and any damages for the breach of the same shall be a continuing lien upon the roads of the contracting parties, this does not constitute a lien running with the land, when, by the due course of law, it has passed into other hands, although it may be a valid contract personally enforceable between the parties. Although money due for unpaid services under the contract might be a lien on the income or property of the delinquent company, yet conjectural damages which might result to one company during the remainder of the time the contract had to run, by the failure of the other company to keep it, are not a specific lien on .the property, which attached to it and follow it into the hands of a purchaser. By a mortgage executed by one company, on all its property, to secure its bonds, to a trust company, as trustee, the title to the property passes to the trust company, without having attached to it the lien of the contract for the traffic arrangement.”

In the case of Detroit T. & I. R. Co. v. Detroit T. S. L. R. Co., 6 Fed. (2d) 845, the Circuit Court of Appeals held:

“A contract 'between two railroad companies, by which one grants to the other the right to use certain trackage, does not run with the land, but is merely personal between the parties, and not binding on the successor of one through foreclosure proceedings, unless, adopted by it. ”

In the case of Kansas City Terminal Ry. Co. v. Central Union Trust Company of New York, 294 Fed. 32, the court held: “Contracts between railroad companies for the joint ownership and use of a union station are ordinary executory operating contracts, and not covenants which run with the property of the several companies and follow it into the hands of subsequent purchasers.”

Many other decisions of State and Federal courts might be cited to the same effect. By implication, at least, this court has announced a similar doctrine wherein it held:

“A purchaser of the roadbed, property and franchises of a railroad company is not liable for its obligations which are not liens upon the property.” Sappington v. L. R. M. R. & T. R. Co., 37 Ark. 23.

It is next insisted on behalf of appellant that, notwithstanding the Krebs contract may have terminated, and notwithstanding the court might determine that the contract of April 20, 1916, was personal between the parties, yet appellee had no right to purchase this track as it did in 1924, because of paragraphs 18, 20 and 22 of § 1, title 49 U. S. Code.

Paragraph 18 provides: “No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation of such additional or extended line of railroad.”

Paragraph 20 reads as follows:

“Any construction, operation or abandonment contrary to the. provisions of this paragraph or of paragraph 18 of this section, may be enjoined by any court of competent jurisdiction at the suit of the United States, the commission, any commission or regulating body of the State or States affected, or any party in interest; and any carrier which, or any director, officer, receiver, operating trustee, lessee, agent, or person acting- for or employed by such carrier, who. knowingly authorizes, consents to, or permits any violation of the provisions of this paragraph or of paragraph 18 of this section, shall upon conviction thereof be punished by a fine of not more than $5,000 or by imprisonment for not more than three years, or both.”

Paragraph 22 provides:

“The authority of the commission conferred by paragraphs 18 to 21, both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or sidetracks, located or to be located wholly within one State. ’ ’

It will be noted that paragraph 22 creates an exception to the general provisions as found in paragraphs 18 and 20, in this that it exempts from the operation of paragraphs 18 and 20 “of spur, industrial, team, switching, or sidetracks, located or to be located wholly within one State.”

The testimony introduced in this cause convinces us that it was never the purpose or intention of the parties who owned this small amount of trackage to engage in commerce or the transportation of freight. The Argenta Terminal Railroad Company never owned or operated any rolling stock, engines or cars; it had no operating force; it had no trackage other than this small- industrial switch track, which was less than a mile in length. It never promulgated or participated in any revenues from freight over either of the railroads to which it was connected. We believe a fair preponderance of the testimony shows that this trackage is nothing more nor less than an industrial or spur track and comes clearly within subdivision 22 of § 1, title 49, U. S. Code.

The question here presented as to the necessity for application to the Interstate Commerce Commission for authority to purchase or construct an extension of a railroad line was presented and decided by this court in the case of St. Louis Southwestern Railway Company v. Missouri Pacific Railroad Company, 185 Ark. 825, 49 S. W. (2d) 1054, wherein the court held:

“After a careful reading and analysis of the evidence adduced in the instant case, the court has concluded that the proposed improvement is a spur within the meaning of paragraph 22, and not an extension of the line of appellee’s railroad within the meaning of paragraph 18. The proposed improvement being a spur only, it was unnecessary to obtain a certificate of convenience and necessity for a crossing from the Interstate Commerce Commission before appellee could file its application before the Railroad Commission of Arkansas to fix the place and manner of the crossing.”

We think that the language used by this court quoted above is controlling in this case on the question involved.

The question as to whether or not the small trackage in controversy was an extension of line or a spur or industrial track was purely a question of fact, and, since the trial court has determined that issue in favor of appellee and its findings are supported by a preponderance of the testimony, it is binding upon this court.

Let the judgment be. affirmed.


author: Kirby, J.,

text:
    Chicago, Rock Island & Pacific Railway Company v. Adams.
    4-3048
    Opinion delivered July 3, 1933.

      H. T. Harrison and Thos. S. Buzbee, for appellant.

      W. R. Donham, for appellee.
   Kirby, J.,

(after stating the facts). Only two questions are raised by the appeal, the sufficiency of the evidence to support the verdict, and whether the court erred in instructing the jury as to the measure of damages.

The suit being brought under the Federal Employers ’ Liability Act, there is no presumption of negligence,, and no duty on the part of the trainmen to keep a lookout as provided for by the statutes of Arkansas, which do not apply. C. M. & St. Paul Ry. Co. v. Coogan, 271 U. S. 472; St. L. & S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102. In the latter case it was said that our statute, § 8562, Crawford & Moses’ Digest, has been superseded in cases of this kind. The rule of the Federal courts on the burden of proof in cases of this character controlled by the Federal Employers’ Liability Act is stated by the Supreme Court of the United States in Patton v. Texas & Pacific Rd. Co., 179 U. S. 658, 21 S. Ct. 275. See also Penn. R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391.

The testimony shows that appellant’s fireman discovered the watchman in the cut a long way off, 750 feet or more, that he recognized him and was given the high sign by the watchman. That he continued to observe him without appearing to think he was in any position of danger or peril until shortly before he stepped outside the rails of the track on the other side about the time he reached the raised platform or jigger, a place fixed by the side of the track for storing the handcars, before giving the engineer the stop signal.

The engineer said he did not understand the signal to stop given by the fireman, that it was not in use as a signal, but could tell from his excitement that something was wrong, and he began to stop the train before he reached and struck the watchman, whom he could not see from his place in the cab.

The engineer evidently did not understand the significance of the signal, since he did not apply the brake in emergency as he could have done, which might have resulted in stopping the train before the injury, although the fireman said it was not possible to stop the train after he gave the stop signal in time to avoid striking the watchman. The watchman stepping outside of the track and then on to the handcar platform might have caused the fireman not to appreciate the danger and the necessity for giving the signal sooner; and certainly the engineer could not have known about the condition as he could not see decedent on the track at all.

The train operatives, however, saw the decedent on the track long before there was any danger to him from the place occupied and necessarily were not negligent in not sooner giving the signal and attempting to stop at that time, since it was the duty of the watchman to go through the cut, as he was doing, to the other side, the west side, that he might flag the ..oncoming train as it came east through the cut. As soon as he perceived or concluded that the decedent was in a place of danger which he could not likely escape from, he gave the engineer the signal and an effort was made to stop the train in time to avoid the injury, although the fireman said he did not believe that the train could have been stopped after he called the engineer’s attention to the danger and the necessity for its being stopped. The fireman said, however, the decedent had reached the platform and was apparently out of the place of danger, and he assumed that he could and would escape, when he concluded otherwise and gave the signal to stop. He said the decedent came to a stop, after getting on to the platform, and it may be that he thought he was out of danger and that the fireman concluded that such was the case until he finally gave the signal to stop the train.

Since the body was found 29 feet from the jigger platform back down in the cut after being struck and where the watchman was killed, the jury evidently did not believe the fireman’s statement about his having-reached the platform and standing thereon before the train reached him. In other words, they may have believed that the watchman was struck where he fell and before he had ever reached handcar platform, a place of safety from which he might have escaped the danger; and that the fireman was negligent in not sooner notifying the engineer of his perilous position in order that the injury might have been averted. Under such circumstances we cannot say that there is not sufficient substantial testimony to support the verdict.

It is next insisted that the court erred in giving appellee’s requested instruction No. 4 on the measure of damages, since the case was one brought under the Federal Employers ’ Liability Act, and that the court should have instructed the jury to diminish the damages in proportion to the negligence attributable to the decedent. The appellant requested no such instruction however and liability of the appellant to the payment of damages for the injury in question was asserted solely on the ground of failure to exercise ordinary care to prevent the injury after his peril was discovered. It seems that only such negligence as proximately contributes to the injury is to be considered, although the injury occurred in a State under the laws of which any negligence on the part of the person injured, even remotely contributing to the injury, is taken into account. The negligence to be considered in order to reduce recovery must be “causal.” Ill. Central R. Co. v. Porter, 207 Fed. 311; Seaboard Air Line Ry. Co. v. Tillman, 237 U. S. 499, 35 S. Ct. 653; K. C. S. Ry. Co. v. Sparks, 144 Ark. 227, 222 S. W. 724; St. L. S. W. Ry. Co. v. Simpson, 184 Ark. 633, 43 S. W. (2d) 251. This last case it is true was reversed by the United States Supreme Court, (286 U. S. 346, 52 S. Ct. 520) but it was on the theory that the perilous position of the decedent was never discovered. See also Gray v. So. Ry. Co., 167 N. C. 433, 83 S. E. 849; Id., 241 U. S. 333, 36 S. Ct. 558; Barnes v. Red River & G. Ry. Co., 14 La. App. 188, 128 So. 724; Hamilton v. Chicago, B. & O. Ry. Co., 211 Iowa 924, 234 N. W. 810.

We do not regard our case of M. P. Rd. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849, as contradictory of these above cited authorities.

No error was committed in giving the instruction complained of, and on the whole case the record does not disclose any prejudicial error, and the judgment must be affirmed. It is so ordered.


text:
    Wasson v. Evans.
    4-3060
    Opinion delivered July 3, 1933.

      J. Paul Ward, for appellant

      Coleman & Reeder, for appellee.
   McHaney, J.

On October 30 and 31, 1930, appellee deposited the proceeds of 'certain insurance policies on the life of her husband in the North Arkansas Bank at Batesville, either for collection and remittance, as contended by her, or as a general deposit. Said bank was found to be insolvent, and was taken over for liquidation by the State Bank Commissioner on November 15, 1930. On or about February 27, 1931, appellee filed her claim as a common creditor of the bank, and same was allowed. On October 28, 1932, she filed this action to have her claim classified and allowed as a prior or preferred one. The Bank Commissioner interposed the plea, among others, that the claim for preference was barred by the statute of limitations § 5, act 627, of the Acts of 1923, which is as follows: “No claim shall be allowed unless proof thereof has been presented to the Commissioner within one year from date on which Commissioner takes over the assets of the liquidated bank. * * # If the Commissioner doubts the justice or the validity of any claim, he may reject the same and serve notice of such, rejection upon the claimant either by depositing the same in the mail or personally. * * * An action upon a claim so rejected must be brought within six months after such notice.’’ ’ The trial court allowed the claim as a preferred one, and the Bank Commissioner has appealed.

We agree with appellant that the statute constitutes a bar to the reclassification of the claim. The allowanee of the claim on February 27, 1931, as a common one was tantamount to its disallowance as a preferred one. Appellee was advised by the Bank Commissioner that he could not allow it as a prior or preferred claim. Clearly she was required under the above statute to bring her action to establish it within six months from its dis-allowance. She did not do so, but waited for more than a year after the six months had expired to file her action thereon.

Reversed and remanded with directions to dismiss the action on the claim for preference.

Kirby, J., dissents.


author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. McCommon.
    4-3055
    Opinion delivered July 10, 1933.

      E. T. Miller and Warner & Warner, for appellant.

      Partain & Agee, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant in the circuit court of Crawford County under the Federal Employers’ Liability Act to recover damages for personal injuries received while engaged in interstate commerce, through the alleged negligence of its roadmaster in ordering appellee to disconnect or release a bent, twisted and sprung rail in the main track upon the assurance that it was safe to do so.-

Appellee filed an answer, denying the alleged negligence on the part of its roadmaster, and pleading the affirmative defenses of contributory negligence and assumed risk by appellee.

The cause was submitted to the jury upon the issues joined and the testimony adduced by the respective parties, which resulted in a verdict and consequent judgment in favor of appellee for $20,444, from which is this appeal.

The main contention of appellant for a reversal of the .judgment is that the facts are insufficient to support the verdict and judgment.

The testimony introduced on behalf of appellee tended to show that he was called about midnight by E. L. Ayles, appellant’s roadmaster, to get his crew and come to Smeltzer switch near Yan Burén for the purpose of clearing and repairing the track, which had been torn up by a wreck of appellant’s south-bound passenger train No. 712, in which wreck the engine was turned over and the engineer and fireman were killed and the train and portions thereof had been derailed; that the roadmaster had arrived at the scene of the wreck an hour or two before appellee, and had made an inspection of the situation, and had assumed full control and charge of clearing up the wreckage and repairing said track; that, upon appellee’s arrival, he proceeded with the work of clearing up said wreckage under the immediate direction and' orders of the roadmaster; that, while checking up the number of ties that would be needed to repair the track, he was ordered by the roadmaster .to disconnect a bent, twisted and sprung rail at the south end of the wreck from a rail in the main lines, who told him exactly how to do it; that he asked the'roadmaster whether there would be any danger standing in the position he must stand to detach- the rail and was assured by the road-master that the bent, twisted and sprung rail would fly out to the east when detached, which would be away from him; that he did what he was told, relying upon the superior knowledge of the roadmaster; that the road-master had had experience in clearing up wrecks such as this during his six years’ service with appellant; that he had never had any experience with such a situation as this, and had no knowledge or information except that given him by the roadmaster as to which direction the rail would spring when detached; that, as soon as he pried the rail apart under the immediate direction of the road-master, the detached rail swung to the east but instantly swung to the south and back to the west and practically cut his leg off above the ankle; that he did not realize the peril incident to releasing the rail. This is a statement, in substance of the testimony introduced 'by appellee, which was contradicted by the testimony introduced by appellant.

Based upon this conflicting testimony, the court instructed the jury to the effect that, if it found that appellee complied with the direct order of the roadmaster in disconnecting the rail, and if it found that the order was a negligent one under the circumstances, then appellee would be entitled to recover unless appellee knew of the peril of complying therewith or had equal means of knowing it, or by the exercise of ordinary care might have known it, or unless the danger was so apparent and obvious that a person of ordinary care and prudence should have observed and seen it.

The law thus declared was correct as applied to the facts, and the. testimony introduced by appellee, and, if believed by the jury, was sufficient to support the judgment.

Appellant contends, however, that the verdict was excessive. Appellant was 48 years of age and was earning $117 a month when injured, and at that time was in perfect health. He was injured at 4:10 a. m. and suffered intense anguish and pain until 7:00 a. mv when his leg was amputated five inches above the ankle. He remained in the hospital for 20 days and was confined to his bed for two weeks after returning to his home. He has been unable to do any work since his injury, and is very nervous and cannot sleep at night. He is still suffering intense pain. He cannot walk on his artificial limib without pain and cannot use it for more than a half a day at a time and cannot work when he has it on.

There is testimony tending to show that the flesh pad on the end of his stump is not sufficiently thick so that he can wear his artificial limh without pain .and that probably another amputation may become necessary before this can be remedied.

"When all these things are considered in connection with his suffering, mutilation of body, and consequent humiliation, we cannot say as a matter of law that the verdict is excessive or that it was inspired by prejudice.

No instruction on comparative negligence was requested by appellant, so the verdict cannot be reduced on that account, even if the testimony reflected any negligence on the part of appellee.

No error appearing, the judgment is affirmed.

Justices Smith and McHaney are of the opinion that the judgment is excessive and should be reduced.


text:
    State use Greene County v. McCoy.
    4-3702
    Opinion delivered July 10, 1933.

      D. G. Beauchamp, for appellant.

      Jeff Bratton, for appellee.
   Humphreys, J.

This ease went off on demurrer to the complaint in the trial court, and an appeal was duly prosecuted to this court from the decree of the chancery court dismissing appellant’s complaint on the ground that the allegations thereof were insufficient to confer .jurisdiction of the cause of action upon said court.

The purpose of the complaint was to recover all amounts from appellee, R. V. McCoy, and his bondsmen, in excess of $5,000 per annum, which came into his hands as treasurer of Greene County. The gist of the complaint cannot be better or more tersely expressed than by copying herein paragraphs 2 and 3 of the complaint, as follows:

“2. That said defendant, R. V. McCoy, for and during the year from July 1, 1929, to June 30, 1930, and from July 1, 1930, to December 1, 1930, collected and received and unlawfully appropriated and converted to his own use large sums of money as fees, salaries, emoluments, commissions and perquisites of office largely in excess of five thousand ($5,000) dollars per annum, which he has failed and refused to pay into the county treasury of Greene County as he was required to do by article 19, § 23, of the Constitution of the State of Arkansas and the enabling statute enacted pursuant thereto. Sections 4633-44, Crawford & Moses’ Digest.
“3. Plaintiffs further state that, during said time from July 1, 1929, to June 30, 1930, and from July 1, 1930, to December 31, 1930, the said defendant, R. V. McCoy, was county treasurer of Greene County, State of Arkansas, and as such treasurer transacted in said office a large volume of business. The amount and description of the different items of fees, salaries, emoluments, commissions and perquisites of office are derived from numerous and different sources and render the account so difficult and intricate that the plaintiffs are unable to state the amount due the treasury of Greene County, Arkansas, therefrom, but believe and allege that the sum so received is approximately two thousand ($2,000) dollars and that the accounts are so voluminous and complicated that it is necessary for a master to be appointed to state the account and that the plaintiffs have no adequate remedy at law.”

In sustaining the demurrer to the complaint; the chancellor proceeded upon the theory that it was first necessary that a settlement should be made by the treasurer with the county court and that the settlement should reflect the amount that came into the treasurer’s hands in excess of $5,000 per annum before a taxpayer might bring suit against him and his bondsmen for the excess. We find no statute conferring jurisdiction on the county court, and none is conferred upon him by the Constitution, to make such an examination and declare the result thereof. It is true quarterly and annual statements are required to be made, but, irrespective of what they may show, no provision is made for the county court to render any judgment against the officer for amounts received by him in excess of $5,000 per annum. This excess is required to be paid into Greene County by the treasurer under article 19, § 23, of the Constitution of the State of Arkansas and the Enabling Act passed pursuant thereto. Sections 4633-44 of Crawford & Moses’ Digest. If the officer fails to pay the excess into the county, it follows that it is recoverable from him in a court of general jurisdiction. It is the duty of the court in which the suit is brought to ascertain the excess above $5,000 per annum and the necessary expenses of his office, and if it requires an investigation into complicated accounts to make the ascertainment, a court of chancery would be the proper court in which to institute the action. The principle announced in the case of Poinsett County v. Landers, 183 Ark. 1138, 40 S. W. (2d) 432, governs the instant case.

A good cause of action was alleged, and the trial court erred in sustaining the demurrer thereto and in dismissing appellant’s complaint. The decree is therefore reversed, and the cause is remanded for further proceedings in accordance with law and equity.


text:
    Fort Smith v. Watson.
    4-3164
    Opinion delivered July 10, 1933.

      Fadjo Cravens, for appellant.

      Hal L. Norwood, Attorney General, Pat Mehaffy, Assistant, and Earl R. Wiseman, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant to recover the gasoline tax imposed by act 65 of the Acts of the General Assembly of 1929 for the amount of gasoline used by the city of Fort Smith (appellant) in propelling motor vehicles owned and operated by said city on the public roads and highways of the State for its, the city’s, governmental purposes in the year 1933, which tax amounted to $776.98. The complaint alleged and the demurrer admitted that said city in the year 1933 received in this State and used gasoline in propelling its motor vehicles for its governmental purposes, on which no tax had been paid. The circuit court overruled the demurrer to the complaint, and appellant refused to plead further but stood on its demurrer; whereupon judgment was rendered against appellant for the. amount sued for, from which is this appeal.

Two questions were presented by this appeal:

First, is gasoline purchased by the appellant for governmental purposes subject to the tax imposed by the act aforesaid?

Second, if the. gasoline so purchased is subject to tax, is the appellant city the one required by the statute to pay the same?

(1) It is argued that, by act 65 of the Acts of the General Assembly of 1929, the Legislature did not intend to impose the tax upon gasoline used in propelling the motor vehicles over the roads and highways because the act does not specifically and expressly require the cities to pay the tax. The act in question is a general act covering the whole subject involved, and contains but one exemption, which is as follows:

“Motor vehicles belonging to the United States Government, and used in its business exclusively, shall not be required to pay any motor vehicle fuel tax or exhibit a State license plate, but in lieu of a State license plate shall have exhibited thereon a license plate in a form provided by the State Highway Commission showing that they are United States Government motor vehicles.” Had the Legislature intended to exempt its political subdivisions from the payment of the tax, it would have included same in this exemption. It follows that the Legislature intended for its political subdivisions to pay the tax. This identical question was decided by this court in the case of Blackwood v. Sibeck, 180 Ark. 815, 23 S. W. (2d) 259. This court ruled in that case that, by exempting motor vehicles belonging to the United States Government from the payment of a license fee, no other vehicles were intended to be exempt. The exemption from the license fee and gasoline taxes appear in the same section (§ 35) of the act. The interpretation placed on this act heretofore and now finds support in the cases of Crockett v. Salt Lake County, 72 Utah 337, 270 Pac. 144; City of Portland v. Kozer, 108 Or. 375, 217 Pac. 833; City of Louisville v. Cromwell, 233 Ky. 828, 27 S. W. 377.
(2) It is argued that, even if gasoline used by the city in propelling its motor vehicles over the roads and highways is subject to the tax, the city cannot be made to pay same directly to the State, but must pay it to the manufacturer or wholesaler who, in turn, must pay it to the State. The record is silent as to where the city of Fort Smith got the gasoline, but it is admitted that it was used by said city without the payment of the tax to the State by any one. Under these circumstances, the city must be regarded as a wholesaler under paragraph 20 of § 30 of said act. That section defines the term wholesaler as used in the act to include any person, firm, partnership, corporation, or association of persons “who receive for consumption in propelling motor vehicles on the public highways motor vehicle fuel on which the tax has not been paid.” A similar question as to what constituted a retailer under the Utah statute defining retailers was settled adversely to the contention of appellant in the case of Crockett v. Salt Lake County, supra. The Utah court said “Some question is made in the argument of appellants that the court ruled that Salt Lake County is neither a retail dealer nor a distributor as defined by the G-asoline Tax Law, but also ruled that the county is liable for the tax with interest and penalty. It is true that the court did not find specifically that the county is a distributor or retail dealer, but the court did find that the defendant county purchased the gasoline in the State of California and caused same to be shipped into this State and used it within this State. That finding fixed the status of the county as a retail dealer as that term is defined in subdivision D above quoted.”

The judgment is therefore affirmed.


text:
    Caldwell v. St. Louis Joint Stock Land Bank.
    4-3054
    Opinion delivered July 10, 1933.

      Clinton L. Caldwell, pro se.

      W. E. Rhea and G. B. Segraves, of St. Louis, for appellee.
   Kirby, J.,

(after stating the facts). The appellant has also attempted and sought to inject the following questions in this appeal:

(1) The authority of the Federal Farm Loan Board to appoint a receiver for the insolvent land bank.

(2) That the appointment of S. L. Cantley as receiver was not proved sufficiently.

(3) And that he is appealing from the decree of foreclosure as well as from the decree of confirmation.

(1) The Federal Farm Loan Board had authority to appoint a receiver for the St. Louis Joint Stock Land Bank (2) which could be proved, as was done in this case, by a certified copy of the min.utes of the Federal Farm Loan Board duly attested and under its seal showing the appointment of Cantley as receiver. Section 661, title 28, USCA. The St. Louis Joint Stock Land Bank was organized under the provisions of the Federal Farm Loan Act, and was, at the time appellant borrowed the money from the bank and on June 1, 1932, under the supervision of the Federal Farm Loan Board; and, having failed to pay interest on its bonds on June 1, 1932, the Farm Loan Board declared it insolvent and appointed S. L. Cantley receiver for it, as it was authorized under the law to do. Sections 961-963, title 12, TJSCA. See also 7 C. J. § 830, p. 845.

(3) The bank had obtained a decree of foreclosure before this receiver was appointed. The sale was advertised by the commissioner as the decree provided, and, no one having bid sufficiently high, the receiver thought it necessary to buy the property in for the trust. The appellant was present at the sale and did not claim it was not fairly conducted. The appeal does not reach to the decree of foreclosure, but relates only to the order confirming the commissioner’s sale. The case was submitted on November 22, 1931, and the decree rendered and entered on April 17, 1932, and the transcript was not lodged in the Supreme Court until March 25, 1933, more than 11 months after the decree was entered, and, as the transcript was not lodged here within 6 months after the entry of the decree, nothing but the order confirming the sale can be considered. Smith v. First Nat. Bank of DeWitt, 119 Ark. 235, 177 S. W. 895.

Appellant offered no proof in support of paragraphs 1 to 11 of his exceptions to the commissioner’s report, and the court was justified in confirming the sale, and no question can be raised as to these matters on the appeal.

Appellee filed a demurrer to paragraph 12 of appellant’s exceptions to the report of the commissioner, and said demurrer was sustained, and this paragraph stricken out, and the appeal questions the correctness of the chancellor’s ruling’ thereon. Said paragraph 12 of the exceptions charges that the appellee ruthlessly, oppressively and fraudulently aided and contributed to the destruction of the land market in the Osceola district not as a conspirator but as an integral part of the land bank system all chartered and controlled by, operated as a unit by, and, in the event of insolvency, liquidated by, the Federal Farm Loan Board, a government bureau of which the President of the United States is the responsible head. The 62 Federal and joint stock land banks are government instruments as are their bonds government instrumentalities.

This paragraph also contains a cross section or summary of the pertinent operations of the 62 land banks, the appellee bank included, for the years 1930 and 1931, as shown by the annual reports of the Federal Farm Loan Board, showing the business and operations thereof, the cash collections, the mortgage loans, etc.

Appellant insists that the facts admitted by the demurrer reveal that the Government, in attempting to operate through the land banks “what is purely a socialistic experiment, has destroyed the country’s land market, or, if it be not the prime cause, it has at least materially aided and contributed to its destruction, has sacrificed debtors’ farms, at salvage sales rather than judicial sales, for a negligible yield on account of the mortgage debts, has stripped farmers of the means to answer the demands of their stricken creditors, has wrecked the public whose fortunes are linked with both, has impaired local governments dependent on vanishing tax collections, and has impoverished an army of small tax bondholders with local tax treasuries unequal to their burden. With families, paupers and children waifs and consequent impaired citizenship, the vicious cycle can not end in 100 years, if ever.”

He insists that the impairment or loss of value of his lands caused by the operation of the land bank system is indicated by its value on January 1,1930, alleged under the appraisal to have been $'24,000 or $150 per acre. The provisions of the loan act authorizing the loan of $7,000 herein necessarily implied a government appraisal of not less than $14,000 or $87.50 per acre at the date of the mortgage in 1922, while the receiver avers that $23 per acre, for which the land sold, is a fair price for it. “There is no evidence of its decline in value prior to January 1, 1930, nor is there any other evidence on the subject in the record. These two appraisals by government agencies should be sufficient to measure the very considerable impairment and loss inflicted on appellant by government land banks, including' appellee land bank. ’ ’

Tbe court did not err in sustaining- tbe demurrer to this exception, which does not admit, of course, any facts that are not well pleaded and the necessary inferences deducible therefrom. There was no testimony introduced tending to show any unfair practice or conduct in the sale of the lands at the time advertised for the sale and at which appellant was present, nor any evidence tending to show that said lands did not bring a fair price, as the chancellor found to be the case. On the whole case, we find no error sufficient to warrant setting aside the sale. The rule has often been declared in such matters and recently. See Adams v. Spillyards, ante p. 641; Federal Land Bank v. Floyd, ante p. 616; Federal Land Bank v. Ballentine, 186 Ark. 141, 52 S. W. (2d) 965.

The decree is affirmed.


text:
    Watkins v. Purnell.
    4-3074
    Opinion delivered July 10, 1933.

      Brundidge & Neelly, for appellant.

      Tom W. Campbell, for appellee.
   Mehaffy, J.

On October 30, 1920, L. D. Robinett, a farmer living near Kensett, White County, Arkansas, was struck and fatally injured by a locomotive engine on the Missouri Pacific Railroad and died from the effects of said injury a few hours later.

On December 10, 1920, appellant J. P. Watkins was appointed by the probate court of White County, ad-. ministrator of the estate of said L. D. Robinett, deceased, and executed and filed his administrator’s bond in the sum of $5,500, and appellants J. H. Dreener and L. E. Moore, signed the administrator’s bond as sureties.

On the same day that Watkins was appointed administrator, he filed in the circuit court of Pulaski County, Arkansas, a complaint against the Missouri Pacific Railroad Company, alleging the injury and death of said Robinett caused by the negligence of said railroad company.

Robinett left surviving him his widow, Maud Robinett, and two sons, Ewell, four years old, and Chester, six months old, as his next of kin.

There was a verdict and judgment in favor of the administrator against the railroad company for $2,000 in favor of the next of kin, and $750 in favor of the estate of Robinett, and the said administrator collected said sums on December 10, 1920.

No guardian was appointed for the minor children of L. D. Robinett until February 8, 1932, at which time W. F. Mitchell, was duly appointed their guardian and curator, by the probate court of White County.

On May 3, 1932, W. F. Mitchell, as guardian and curator of the minor heirs of Robinett, deceased, brought suit in the chancery court of White County against J. F. Watkins, J. H. Deener and L. E; Moore upon the administrator’s bond, for a recovery on behalf of said minor children, of $'2,000, which appellant Watkins, as administrator, had collected from the railroad company in favor of the next of kin of the said L. D. Robinett.

After the suit was brought, but before it was tried in chancery court, Mitchell died, and Frank L. Purnell, appellee, was by the probate court of White County, appointed guardian and curator of the minor children in place of Mitchell, and Frank L. Purnell, as guardian, was substituted for Mitchell as party plaintiff.

J. F. Watkins, the administrator, filed separate answer denying the material allegations of the complaint and alleging that all the money received by him as administrator of said estate was duly paid over and accounted for in his settlement with the White Probate Court; that all of said money was expended for the support, education and maintenance of said minors; that $1,100 was used for the purchase of a home, consisting of 10 acres of land, which was conveyed to the minors by deed; that the purchase of said home was made by the authority of the White Probate Court, and that all of the money was used for the benefit of said minor children.

The bond executed by Watkins and his sureties was an administrator’s bond in the usual and proper form.

J. H. Deener and L. E. Moore, sureties on the administrator’s bond, filed separate answer denying the material allegations in the complaint, and denying that they were liable for the sum of $2,000, or any other sum. They alleged that they could only be responsible for $750, the amount paid to the administrator, and that this amount was duly paid out under the orders of the probate court.

The following is the settlement filed in the probate court by the administrator:

“State of Arkansas, County of White.
“In The White Probate Court.
“April Term, 1923.
“On this 28th day of April, 1923, comes J. F. Watkins on the administratorship of the estate of L. D. Robinett and files his account current for first and final settlement of his account as aforesaid and charges himself with the following articles:
“Date On What Account Amount.
12-13-1920 To ck. from Mo. Pac. Ry. Co.............$2,750.00
Inventory of Personal property...... 453.00
$3,203.00
12-15-1920 By livestock and implements covered by inventory sold to A. R. Mills to apply on account........................ 453.00
12-15-1920 Ck. to Mrs. Robinett for living expenses .................................................................. 75.00
12-23-1920 Ck. to Mrs. Robinett for living expenses .................................................................. 50.00
1-13-1921 Ck. to Gr. O. Yingling filing claim and copy of letters....................................... 1.35
1-18-1921 Ck. to Mrs. Robinett for house rent for 1921......................................................... 100.00
1-18-1921 Ck. A. Crawford as appraiser............ 1.50
1-18-1921 Ck. A. P. Mills for claim........................ 125.56
1-26-1921 Ck. Mrs. Robinett board for children ..................................................................... 40.00
1- 27-1921 A. P. Mills balance store account...... 312.45
2- 3-1921 Ck. C. V. Tapscott claim........................... 36.00
2- 9-1921 Ck. Mrs. Jessie West claim rent...... 94.50
1-17- 21 Ck. Stewart & Son monument............ 90.00
4-11-1921 Ck. Mrs. Robinett living exp. for child .............................................................................. 50.00
4-25-1921 Ck. Mrs. Robinett living exp. for child .............................................................................. 50.00
4- 25-1921 Ck. J. A. Spencer claim.............................. 12.85
5- 16-1921 Ck. Mrs. Robinett for children......... 40.00
5- 30-1921 Ck. Robt. Stewart claim.......................... 34.90
6- 25-1921 Ck. Mrs. Robinett for children......... 30.00
8- 6-1921 Ck. Mrs. Robinett for children......... 40.00
8- 18-1921 Ck. Mrs. Robinett for cow bought 3'5.00
9- 2-1921 H. M. Williams payment on land...... 500.00
9- 6-1921 H. M. Williams balance on land...... 598.50
9-14-1921 Mrs. Robinett for mule and wagon 65.00
10-20-1921 Mrs. Robinett for supplies for children ................................... 15.00
12- 3-1921 Mrs. Robinett for supplies for children ..................................................................... 20.00
1- 11-1922 Mrs. Robinett for supplies for children ..................................................................... 25.00
2- 11-1922 Mrs. Robinett for supplies for children ..................................................................... 25.00
3- 25-1922 Mrs. Robinett for supplies for children ..................................................................... 25.00
4- 28-1922 Mrs. Robinett for supplies for children ..................................................................... 25.00
5- 30-1922 Mrs. Robinett for supplies for children ..................................................................... 25.00
1-28-1923 Mrs. Robinett for supplies for children ..................................................................... 25.00
9- 7-1923 Taxes paid ............................................................ .81
4-28-1923 J. F. Watkins 5% commission and exp. to Little Rock two trips, and other expenses ..................................-........... 181.52
$3,203.00”

The evidence showed that Watkins as administrator, had received the $2,750 as alleged, and that he had paid it out as shown by his settlement with the probate court.

Mrs. Maud Stewart, the widow of L. D. Bobinett, testified that he was killed by the Missouri Pacific, left the two children above-named, one four years old and the other 4 months old; that said children at the time of the trial were 16 and 12 years of age; that she married again a short time after her husband was killed; the children lived with her; she drew some money from the administrator for the. support of the children, but did not know how much; that she had no place to live, and the administrator paid rent on a house for her and the children for about a year after the death of her husband; that Mr. Watkins then bought a place for them, and they live on it; that he paid $1,100 for the place.

J. F. Watkins testified that the settlement introduced showed the amounts he had paid out, for which he held the original checks; that Mrs. Bobinett and Mr. Stewart came to him and told him about the place they wanted to buy. That they were having to pay rent all the time. That the place was well worth the money, and that Judge White, the judge of the probate court, told him it was the best thing to do to purchase the place. There was no order of the probate court, but he purchased on the verbal order of Judge White.

The 'bond of the administrator was .introduced by agreement. It was also agreed that if Judge White were present he would testify to substantially the same facts testified to by Watkins with reference to the purchase of the home. It was also agreed that Mrs. Stewart, mother of the children, had had the care and custody of the children since the death of their father, and that there was no guardian appointed until February 8, 1932.

After hearing the testimony the chancellor entered a decree against the appellants for $1,333.33 with interest at 6 per cent, per annum from February 8,1932, the date of the appointment of the guardian, the principal and interest amounting to $1,379.95.

The principles of law are well settled. We have had considerable difficulty, however, in reaching a conclusion as to what decree should have been rendered under the facts in this case;

‘ ‘ The law is thoroughly well settled that the administrator, as such, has nothing to do with the support and education of the minor children of his intestate, and, if nothing more appeared in this case than that the administrator had done so, then he would have no right to make this charge against the estate of his intestate.” Alcorn v. Alcorn, 183 Ark. 342, 35 S. W. (2d) 1027.

It was also said in the above, case in substance that the administrator should, from time to time, have received orders from the probate court as to what expenditures were proper. If he had done this, he would have been protected. By failing to obtain this authority, he made expenditures for the purposes stated at his peril, and subject to the right of the court to review them when he made report thereof. It was also said in substance that neither an administrator nor a guardian may expend the minor’s estate in the manner that it was shown to have been expended by the evidence. The expenditures, even for the purpose of maintenance and education, must be made under the direction of the court, and made in conformity to his station in life, and the value of his estate. Numerous authorities are cited and reviewed in the Alcorn case, supra, and we do not deem it necessary to discuss them here. Whatever expenditures for the minor children were made by the administrator were made at his peril, and the'burden of proof would be upon him to show that they were, necessary and proper expenditures, taking into consideration their station in life, and the value of their estate.

The administrator had no right to' purchase the home, and the court correctly so held. The decree of the lower court subrogating the administrator to the rights of Ewell Robinett and Chester Robinett, and divesting the title and interest of said minors from them, and vesting same in defendants, is correct.

Of the $2,000 collected for the benefit, of the next of kin, one-third would belong to the widow, and two-thirds, or $1,333.33', would'belong to the children. The $750 for the benefit of the estate was less than the amount paid for discharging the debts of the estate. There was, however, $453 of personal property left, and the widow and minor children would be entitled to $300 of this amount making a total of $1,533.33. Crawford & Moses’ Digest, § 80.

The undisputed proof shows that there was expended for the widow and children, $560. This was evidently the amount expended on the children, and the amount due the widow for care, custody, and labor in caring for the children. This $560 deducted from $1,533.33 leaves a balance of $973.33, which the guardian is entitled to recover for the children.

The decree of the chancery court is therefore modified and affirmed, for $973.33, with interest at 6 per cent, per annum from February 8, 1932.

The sureties on the bond contend that they are not liable because the $2,000 did not belong to the estate. They, however, signed Watkins’ bond as administrator, and he sued for and collected the money as administrator. They are therefore liable for the amount of money due from the administrator to the minors.

The judgment will be modified and affirmed for . $973.33. It is so ordered.


text:
    Tapley v. Futrell.
    4-3176
    Opinion delivered July 10, 1933.

      R. E. Wiley, for appellant.

      Coleman & Riddick, for appellee.
   Mehaffy, J.

The Legislature of 1933 ’ passed act 167. The title of the act is: “An Act to Refund All State Highway Obligations.” Section 1 of the act reads as follows:

“The issuance of Arkansas State Bonds, hereinafter called State Bonds, is hereby authorized in a total sum equal to the aggregate of the entire outstanding indebtedness of the State on account of the construction and maintenance of the State Highway System, including all State Highway Notes or Bonds, Toll-Bridge Bonds, Revenue Bonds, valid outstanding Road District Bonds on which the State has been paying interest under act No. 11 of the- Acts of 1927 and act No. 65 of the Acts of 1929, hereinafter called Road District Bonds, Certificates of Indebtedness issued or authorized under act No. 8, approved October 3, 1928, and act No. 85 of 1931, Short Term Notes issued under act No. 15, approved April 14, 1932, all valid claims against the State Highway • Commission, and all warrants and vouchers issued by the State Highway Commission prior to February 1, 1933, together with the-interest on the respective obligations and claims. Such bonds shall be the direct obligation of the State, for the payment of which, principal and interest, the full faith and credit of the State, and all its resources are hereby pledged. They shall be dated May 1, 1933, shall be payable in twenty-five years, and shall bear interest at the rate of three per cent, per annum, the interest to be payable semi-ánnually, and to be evidenced by attached interest coupons.”

The appellant, O. E. Tapley, tlie owner of a State Highway Bond issued under act No. 11 of 1927, brought this suit as a citizen and taxpayer, alleging that act 167 was in violation of § 1, article 16, of the Constitution of the State, which reads as follows:

“Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip.”

Appellant also alleged that the act violated § 12 of article 12, which reads as follows:

“Except as herein otherwise provided, the State shall never assume or pay the debt or liability of any county, town, citjr or other corporation whatever, unless such debt or liability shall have been created to repel invasion, suppress insurrection or to provide for the public welfare and defense. Nor shall the indebtedness of any corporation to the -State ever be released or in any manner discharged save by payment into the public treasury. ’ ’

He prayed for an order restraining J. M. Futrell, as Governor, Roy V. Leonard, as Treasurer, and Griffin Smith, as State Comptroller, composing the Refunding-Board, from exchanging Arkansas State Bonds issued under act No. 167 of 1933 for any Road District Bonds on which the State has been paying interest under act No. 11 of the Acts of 1927, and act No. 65 of 1929.

The appellees filed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer with leave to amend. The appellant elected to stand on his complaint, refused to amend, and his complaint was dismissed for want of equity. The ease is here on appeal.

This suit challenges the constitutionality of act 167 of 1933 in so far as the act authorizes the Refunding Board to exchange'Arkansas State Bonds for Road District Bonds, the payment of which the State has assumed under act No. 11 of 1927 and act No. 65 of 1929.

Section 5 of act 167 provides that the holder of valid Road District Bonds and other bonds may deposit the same with the State Treasurer for exchange for a State Bond of equal face value.

Section 8 of the act provides that the Governor, State Treasurer and State Comptroller shall constitute a Refunding Board with powers necessary to carry out the provisions of the act.

The only question for our consideration in this case is whether act 167 violates the Constitution in authorizing the Refunding Board to exchange State Bonds for Road Improvement District Bonds.

It is first contended that the act violates § 1 of article 16 of the Constitution and § 12 of article 12 of the Constitution. The appellant calls attention to numerous authorities of other courts. We do not discuss them for the reason that the questions argued by appellant have been definitely settled by decisions of this court.

Section 1 of article 16 prohibits the State, city, county, town or municipality loaning its credit for any purpose, and also prohibits the county, town or municipality issuing interest-bearing evidences of indebtedness.

In the case of Hays v. McDaniel, 130 Ark. 52, 196 S. W. 934, we said: “It is said that the word ‘municipality’ here employed, includes the State. But we do not agree with counsel in this contention. If it be conceded that the word ‘municipality’ has sometimes been used by courts and textwriters as of sufficient breadth to include a sovereign State, it does not follow that it was so employed here. The framers of the Constitution were dealing with a subject of the highest importance, and evidently chose their- language with great discrimination, and we can not assume that they intended the word ‘municipality’ to embrace the State. To do so would render meaningless and wholly unnecessary the third clause of this section, which provides that the State shall never issue any interest-bearing treasury warrants or scrip. This second clause inhibits the issuance of any interest-bearing evidences of indebtedness. Treasury warrants and scrip are evidences of indebtedness, and it would have been an idle thing to do to prohibit the State, along with the counties, cities and towns therein, from issuing any interest-bearing evidences of indebtedness, and then, in the following clause of the same section, to repeat the. inhibition against the issuance of a form of indebtedness which was inhibited under the preceding clause. # *

“The State, acting through its Legislature, may borrow money for its own uses unless that right is denied to it by the Constitution, and the only inhibition against the State there contained, in this respect, is that it shall not issue any interest-bearing treasury warrants or scrip.”

The above case definitely settles the proposition against the contention of the appellant. This question was also discussed and decided in the case of Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. We there said: “The General Assembly has plenary powers to contract for and create interest-bearing evidences of indebtedness on the part of the State, except to issue interest-bearing warrants or scrip.” We also held in the Bush-Martineau case, supra, that a road improvement district was not a corporation within the meaning of this section of the Constitution.

Many of these road improvement districts were created by the Legislature. Section 2 of article 12 of the Constitution provides: “The General Assembly shall pass no special act conferring corporate powers, except for charitable, educational, penal or‘reformatory purposes, where the corporations created are to be and remain under the patronage of the State.” The Legislature therefore could not, by a special act, create a corporation.

Section 6 of article 12 provides that corporations may be formed under general laws. It is clear that, under the Constitution, road improvement districts, either created by the Legislature itself or created under the authority of the Legislature, are not corporations within the meaning of § 12 of article 12 of the Constitution.

The appellant discusses at length the history of public roads as internal improvements, and the story of the disasters which follow the enactment by the Legislatures of laws for the building of public roads.

The disasters came largely, if not altogether, from undertaking to build public roads which were really internal improvements, by local improvement districts, to be paid for by the property owners of the locality, instead of making the improvements directly by the State.

This system of road building had been tried and abandoned by other nations more than 100 years before we adopted the system here. Instead of profiting by their experience, we made the experiment ourselves, and the disasters discussed by the appellant followed.

It was to relieve this intolerable condition brought about by these local improvement districts that the State finally took over the road system itself, including the roads constructed by local improvement districts. These roads, while not constructed directly by the State, were constructed under the authority of the State, and, whether intended at the time to be so or not, they are for the benefit of the entire State.

After the decisions by this court above referred to, this question was before the court again in the case of Williams v. Parnell, 185 Ark. 1105, 51 S. W. (2d) 863. The court in that case approved the cases formerly decided by this court, and held that not only could the State borrow money and issue notes therefor, but that highways might be constructed by the State itself or by governmental agencies; that public highways are for public use, and there is no reason why the power of taxation by the State may not be exercised in their behalf.

We therefore hold that the questions argued by the appellant have been definitely settled by the decisions of this court. Act No. 167 is not in violation of any provision of our Constitution, and is therefore a valid enactment.

Every question raised has been settled by the former decisions- of this court against the contentions of the-appellant.

When a provision of the Constitution has been construed by the court, it should be followed by the court, because if we hold that the Constitution means one thing at one time- and a different thing at another time, no one would know what might happen in future decisions.

"A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time and another at some subsequent time, when the circumstances may be so chang’ed as perhaps to make a different rule in the case- seem desirable.” Cooley’s Constitutional Limitations, (8th ed.) vol. 1, 123; Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250; South Carolina v. U. S., 199 U. S. 437, 26 S. Ct. 110; Dred Scott v. Sanford, 19 How. 393; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738.

It is contended also by the appellant that the act provides for loaning credit and issuing interest-bearing evidences of indebtedness of the State, contrary to our Constitution. This question is completely answered against the contention of the appellant in the cases already cited. It is also contended that State purposes, within the meaning of the rule of Hays v. McDaniel, supra, do not include public roads. The other cases cited in this opinion, especially the case of Williams v. Parnell, supra, do include public roads.

We therefore conclude that the act in question does not violate any provision of the Constitution. The decree of the chancery court is therefore, affirmed.


text:
    Commercial Warehouse v. State.
    Crim. 3848
    Opinion delivered July 10, 1933.

      House & Moses and Richard G. Butler, for appellant.

      Hal L. Norwood, Attorney General, Pat Mehaffy, Assistant, and Earl R. Wiseman, for appellee.
   McHaney, J.

Appellant was convicted on a charge of overloading one of its trucks and operating same over the streets of Little Rock. The truck was rated by the manufacturer as a 2%-ton truck, and appellant had paid a license fee thereon based upon such tonnage. At the time the truck was stopped and the driver arrested, it was carrying 514 tons. The license fee for a 214-ton truck and which appellant paid is $90. The license fee for a 6-ton truck is $400. See act 36, Acts 1933. Section 24 of act 65 of 1929, subsection (N), makes it unlawful for any person to operate a vehicle on the public roads in this State without having paid the fee required by this act. If appellant could obtain a license for a 214-ton truck and then haul 5 or 6 ton loads, it would escape the payment of the higher license fee required by law for such loads. The object of the lawmakers seems to have been to require the payment of license fees in proportion to the load capacity of the vehicles, because the heavier the load, the more the damage is to the highways over which it operates. Therefore, if appellant wishes to operate its truck on a 214-ton license, it should limit its load to 2'14 tons. If it wishes to have a greater tonnage, then it should get a license covering the greater load. It would not be thought proper to operate a Cadillac automobile with a Ford license, yet the same principle is involved.

Affirmed.


text:
    Smith v. Watkins.
    4-3076
    Opinion delivered July 10, 1933.

      Pearce & Whitley, for appellant.

      Ezra Garner, for appellee.
   McHaney, J.

Appellee recovered judgments against appellants in the justice of the peace court as follows: April 21, 1928, against Smith $267.01, against Decia Hill $129.17. Against Necie and Elliott Flowers $287.97, against Branton or Bratton $221.25. Executions were later issued on said judgments, placed in the hands of proper officials, and were returned nulla bona. On March 22, 1932, transcripts of all four judgments were filed in the circuit clerk’s office, and on the same day executions issued thereon, placed in the hands of the sheriff who made a levy on April 14, 1932, and on May 14, 1932, sold the undivided interest of appellants in and to 320 acres of land formerly belonging to J. N. Smith, now deceased, who was the father of the judgment debtors. J. N. Smith died intestate, leaving surviving him his widow and appellants, all of whom resided upon said land, hut no dower or homestead had ever been assigned to the widow, Cassie Smith, at the time of the levy and sale.

Appellants brought this action in the chancery courtt praying a cancellation of the sale made by the sheriff, as a cloud on their title, decreeing to them their homestead rights in said lands as remaindermen. They also sought a cancellation of the judgment against Necie Flowers and a restating of the account between Decie Hill and appellee. Appellee demurred to the complaint, the court sustained the demurrer, and this appeal followed.

. The court correctly sustained the demurrer for want of jurisdiction. Three of the judgments in the justice of the peace court were upon personal service, and in the ease of Necie Flowers the record shows she appeared in court and confessed judgment. No motion was made in either case to set aside the judgment. No appeal was prayed or prosecuted. Appellants had a full, complete and adequate remedy at law, and the complaint, as to Necie Flowers and Decie Hill, constitutes a collateral attack on the judgment of the justice court against them.

As to the claim of homestead right of appellants, the complaint alleges that they “were living on a tract of 320 acres of land held by appellants as tenants in common with five other heirs of J. N. Smith, deceased, who owned said tract of land at the time of his death”; that they were so living in separate homes, each the head of a family, when said judgments were lodged in the clerk’s office and the executions were levied; that subsequent to the levy, but prior to sale, Cassie Smith, April 29, 1932, conveyed to them and the other heirs all her dower and homestead rights to said lands. At the time of the levy, the mother was a life tenant in possession with dower and homestead rights unassigned, and she could have claimed the lands exempt as against any of her creditors. The heirs were living on said land in separate houses, perhaps as tenants of the mother, but certainly not more than remaindermen subject to the life estate. No particular tract of the 320 acres was owned by any of them until the termination of the life estate, and a partition of the land among the nine heirs, four of whom are appellants here. The lien of the judgments attached to the interest of appellants from the date the transcriptions were filed with the circuit clerk. As we said in Brooks v. Goodwin, 123 Ark. 607, 186 S. W. 67: “It is apparent that the occupancy must be accompanied by a present claim of a right to occupy, and one cannot occupy an estate in remainder as a residence. The owner of a particular estate alone has that present right of occupancy essential to impress the homestead character upon land.”

The language of the Constitution under which the homestead right is here asserted is: “ The homestead outside of any city, town or village owned and occupied as a residence shall consist of not exceeding * * * ” etc. Appellants did not own the residences occupied by them, although they had a future expectancy to own each a one-ninth interest in the land. At the time the lien of the judgments attached and at the time of levy no homestead rights had or could have attached or been set apart to them. The case is ruled by Brooks v. Goodwin, supra. See also Taylor v. Greene, 186 Ark. 817, 56 S. W. (2d) 432, and cases there cited.

We find no error, so the decree is affirmed.