text:
    Board of Improvement of Auditorium Improvement District No. 46 v. Moore.
    Opinion delivered October 4, 1926.
    1. Municipal corporations — improvement district — auditorium.— A city has no authority to pass an ordinance creating an improvement district to construct an auditorium, and such an ordinance is subject to collateral attack after expiration of the time for review.
    2. Municipal corporations — validity op ordinances. — The validity of a municipal ordinance may he collaterally attacked where the ordinance is void for lack of power to enforce it.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    affirmed.

      J. M. Carter and B. E. Carter, for appellant.

      O. G. Pope, for appellee.
   Smith, J.

This is an appeal by an improvement district from a decree of the Miller Chancery Court holding the district void and enjoining any further steps toward the making of the contemplated improvement, a suit for that purpose having been brought by appellee, an owner of real estate within the proposed district.

The district was organized in the city of Texarkana under the general statutes of the State governing the formation of improvement districts in cities and towns. No question is made concerning the regularity of the procedure whereby the district was established, including the passage and publication of the ordinance levying the assessment of benefits, and no suit was filed within the thirty days allowed by law for attacking such proceedings.

The proceeding to organize the district was begun on May 12, 1925, by the filing of a petition, containing the signatures of more than ten resident owners of real property in the proposed district, with the city council, praying the council to lay off certain territory in the city into an improvement district for the purpose of building a municipal auditorium. This was more than five months prior to the rendition of the opinion of this court in the case of Lipscomb v. Lenon, 169 Ark. 610, 276 S. W. 367.

The testimony of a number of witnesses was offered to the effect that a municipal auditorium would enhance the value of the property of the city within the district; but an objection to this testimony was sustained upon the ground that the power of the council to organize an improvement district to construct an -auditorium was one of law, and not one of fact.

For the reversal of the decree of the court below holding the improvement district invalid and enjoining all proceedings thereunder, it is insisted that, when the petitions asking for the creation of the district and that the improvement be made were filed with the city council, there was presented to the council a mixed question of law and fact as to whether a municipal auditorium was a local improvement that would confer special and peculiar benefit on the real property of the district; that the law provides for a direct attack upon the decision of this question by the council, and provides that a failure to appeal from that decision within the time limited by law forever precludes’ any attack on the correctness of the action taken by the council, unless that action was so palpably arbitrary that no reasonable tribunal could have honestly reached the conclusion that the prayer of the petition should be granted.

In support of this contention it is argued that neither the section of the 'Constitution authorizing local improvement districts nor the statute enacted in aid thereof undertakes to say what is or is not a local improvement that can be constructed by the improvement district method, and that the decision of the question is therefore left for the decision of the council in the first instance, and that this decision may be reviewed by the courts if a suit for that purpose is brought within the time allowed by law, and, if not brought within that time, the statute makes the finding of the council final and conclusive.

In support of this argument the case of Hewes v. Glos, 170 Ill. 436, 48 N. E. 922, is cited. This is a decision by the Supreme Court of the State of Illinois. It had previously been held by the Supreme Court of that State that the construction of a municipal waterworks system for fire protection and general uses was not a local improvement within the meaning of the statute of that State authorizing cities and towns to construct local improvements by the assessment of betterments against the property in the district where the proposed improvement was located.

The village of Winnetka, in that State, passed an ordinance for the construction of a system of waterworks for fire protection and for domestic use by the inhabitants of the district, and for other purposes, and the levy of the assessment of the benefits was approved by the. county court of the county in which the village was situated, as was required by the law of that State.' No property owner appealed from the order of the county court' within the time allowed by law in which suits might be brought to attack an ordinance of that kind. After the expiration of the time allowed by statute for the institution of such suits, a suit was brought by a property owner in which the validity of the' improvement district was questioned. The court held (to quote a head-note): “A village ordinance levying a special assessment for the construction of a general waterworks system, the village having power to construct such system, is not absolutely void, but void only as being an improper exercise of' corporate power; and assessment proceedings had thereunder cannot be attacked in an action to annul them, but only on review, by appeal or writ of error, of the judgment of the county court confirming the same.”

The court said the proceeding was a collateral attack on the order of the county court approving the assessments, which could not be sustained because the action of- the council and the order of the co.unty court were voidable,- and not void. The court stated, however, that, if the action of the council was void because of lack of jurisdiction, then the order of the county court confirming the assessment of benefits could be collaterally attacked. In other words, the decision in that case rested on the answer to the question whether the action of the city council in passing the-ordinance was merely erroneous or was void for lack of jurisdiction.

"When the effect of the decision of this court in the caüe of Lipscomb v. Lenon, supra, is considered, it is apparent that the Illinois case from which we have quoted affords no authority for reversing the decree of the chancellor from which this appeal is prosecuted. This is true because, under the authority of the Lipscomb case, the ordinance was void on account of a lack of power in the council to pass it.

In the Lipscomb case the court reviewed the prior decision, of this court in the case of Matthews v. Kimball, 70 Ark. 451, where it was held that an improvement district might- be organized to acquire a city park, and the court said that, while the doctrine of that case had never been impaired, it approached the verge of constitutional sanction in holding that the -entire real estate within the city -limits- might be included within an improvement district for the. purchase and maintenance of a city park. The majority then proceeded to say: “Certainly, the doctrine there announced should not be so extended by interpretation , as to confer authority upon the Legislature to itself create or delegate to other agencies the power to create improvement districts, such as we now -have under review,, to be paid for solely by the owners =of real property in such districts.”

Thus, we have an-express holding that neither the Legislature itself nor any agency created by it has authority to create an improvement district to construct an auditorium, to be paid for by tbe owners of real property in the proposed district.

It is true the improvement district created to construct an auditorium which was held invalid in the Lipscomb case was created by a special act of the General Assembly, and not by a city council upon the petition of a majority of the property owners, as was done in the instant case; but this difference does not operate to deprive the Lipscomb case of controlling effect here.

If the Legislature could not itself determine that the construction of an auditorium could be the subject of an improvement district, it follows that it could not delegate to a subordinate agency the power to determine that it was. Bo also, if it is a demonstrable abuse of power for the General Assembly to determine that an auditorium might be constructed as a local improvement, it .necessarily follows that no power so to do inheres in an agency created by the Legislature to pass upon the question. In other words, the General Assembly could confer no greater power than it possesses itself, and, if the General Assembly had no power to authorize the creation of an improvement district to construct an auditorium, no agency created by the General Assembly could have that power. ,

As the majority of the court have no disposition to recede from the holding in the Lipscomb case, it necessarily follows that the council of the city of Texarkana had no authority to pass an ordinance creating .the improvement district, and the court was therefore correct in refusing to consider the testimony offered in the case.

It must be conceded that the suit below is a collateral attack on the validity of the district, but, as was stated in the Illinois case upon which appellant relies, such an attack may be maintained where the ordinance attacked is void for the lack of power to pass it.

The decree of the court below is-therefore affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Lewis-Goodwin Oil & Gas Company v. Holmes.
    Opinion delivered October 4, 1926.
    Mines and minerals — forfeiture for nonpayment of rent— waiver. — Where a lessee’s delay in payment of rent worked a forfeiture, whereupon the lessor conveyed the land to another, the subsequent acceptance of the rent by the' lessor did not invalidate his grantee’s title, as the lessor had no power to waive the forfeiture.
    Appeal from ÍTnion Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Mahony, YocumS Saye and J. N Saye, for appellant.

      Ganglion & Sifford, for appellee.
   Humphreys, J.

On the 5th day of April, 1924, John P. Holmes, the fee owner of the south half of the northwest quarter of the northwest quarter of section 15; Elizabeth Holmes, the fee owner of the south half of the northeast quarter of the northeast quarter of section 16; Martha Holmes, the fee owner of the northwest quarter of the southwest quarter of section 15 and the northeast quarter of the southeast quarter of section 16; the Smaekover Oil & Gas Company, owner of an oil and gas lease covering the northwest quarter of the southwest quarter of section 15, and J. T. Sifford, trustee, owner of an oil and gas lease covering the southeast quarter of the southeast quarter of the northeast quarter of section 16, all of said lands being in township 16 south, range 16 west, in Union 'County, Arkansas, appellees herein, filed a joint suit in the chancery court of Union County against Lewis-Goodwin Oil & Gas Company, appellant herein, to cancel and correct the oil and gas lease executed by Joe McGruder and his wife to it on March 7, 1921, and recorded on June 3,1922, purporting to correct the description contained in an oil and gas lease executed by the MioGruders, April 23, 1919, to J. K. Mahony, trustee, and recorded May 19,1919, so as to correctly describe the lands aforesaid, which lease was assigned by J. K. Mahony to appellant on October 23, 1920, and recorded the same date.

On April 1,1923, prior to the institution of this suit, John P. Holmes sold an oil and gas lease on the south half of the southwest quarter, of the northwest quarter of section 15, township 16 south, range 16 west,', in said county, being a part of the 1'20-acre tract aforesaid, to' the Gulf. Refining Company for $10,181.80 cash .and certain oil payments to be made, ;but, when the abstract, was delivered, appellant's lease from the McGruders w;as discovered, whereupon the Gulf Refining Company refilsed to accept the lease and make the cash payment.- In order to consummate the deal and clear the title to- the Gulf Refining Company, John P. Holmes and appellant herein entered into an agreement to the effect that the cash payment should be placed in the Hirst National Bank of El Dorado, Arkansas, to be paid to appellee, John P, Holmes, or.appellant, according as the title to the oil and gas lease holding rights on said land should be judicially determined. This suit was brought pursuant to the agreement and-for the purpose of testing the validity of the corrected lease from the McGruders to the appellant.

The appellant'.filed-an answer, denying the-material allegations of the-bill attacking.the validity of its léase, and interposed the further defense, by way of cross-bill, .that, when made by the McGruders to its assignor,--J. K. Mahony, trustee-, Joe -MicGruder was in possession of the land by purchase .from John P. Holmes, appellee herein, under a deed erroneously describing,the.land as -being in range 15 west.instead of 16 west, through a mutual mistake in drafting and accepting .the deed, and that, on this account, it was entitled tó a reformation thereof-, for which-it prayed.. It also alleged that the deed. ref erred to recited that there was an unpaid balance of $1,500 on the purchase price of the-120-acre tract, .of land, which was evidenced by MeGruder’s promissory note, due and payable .on January!, 1920. It tendered into court $2,300, the amount due upon said note to that date, and asked that it be subrogated to. the rights of Holmes in said warranty deed, and that the lien retained therein be foreclosed and the land sold, subject to the oil and gas léase owned by appellant. On motion of appellant, tbe McGruders were made parties to the suit.

Appellees filed a reply, denying seriatim the material allegations of the cross-bill.

The cause was heard by the court upon the pleadings and the testimony adduced by the respective parties, which resulted in a decree quieting the title of each of the appellees to their alleged respective interests in the land, as against all claims on the part of appellant, denying it the rights of reformation and subrogation, and adjudging John P. Holmes to be the owner of the sum of $10,181.80 deposited by agreement in the First National Bank of El Dorado, Arkansas, and to all. of the benefits accruing to the lessor under and by virtue of said oil and gas lease executed in favor of the Gulf Refining Company, covering the south half of the southwest quarter of section 15, township 16 south, range 16 west, in said county, from which is this appeal.

According to the above recital of the facts, J. P. Holmes was the owner of the 120-acre tract on March 3, 1919, when he sold same to Joe McGruder by an erroneous description, and of the 20-acre tract, which was a part of the 120-acre tract, on April 1, 1923, when he contracted to lease it to the Gulf Refining Company by correct description. On January 17, 1921, Joe McGruder conveyed the 120-acre tract back to J. P. Holmes by the same erroneous description. Though not recited in the statement above, J. P. Holmes conveyed all of the land to Frank M,. Pugh on March 9, 1921, by correct description; but Pugh had reconveyed it to him by correct description at the time he contracted a leasehold estate therein to the Gulf Refining Company. As Holmes owned the land at the time he sold same to McGruder and also when he proposed to lease 20 acres to the Gnlf Refining Company, the question of an innocent purchaser is. not involved in this suit. It was developed by undisputed testimony adduced in the case that there was a mutual mistake as to description in the deed from Holmes to McGruder, in the lease from McGruder to J. K. Mahony, in the assignment of the lease from J. K. Mahony to. appellant, and in the deed from McGruder back to Holmes in settlement of the lien retained for the purchase money.

In view of this undisputed fact, McGruder would have been entitled to a reformation of the deed m'ade by Holmes to him had'he not conveyed the land back to Holmes, and his lessees, Mahony and appellant, were-' entitled to the same relief by virtue of their lease from McGruder, if the leasé was in force and effect when the agreement was' made between Holmes and appellant to clear the title to the Gulf Refining Company. As we-understand' the agreement itself, and the construction placed upon it by learned attorneys in their respective briefs, the sole question to be determined on this appeal is whether appellant had a valid lease on the 120-acre tract of land at the time Holihes and appellant agreed to clear the title to the 20-acre tract in the Gulf Refining Company and litigate over the proceeds.- In other .words, it was agreed that, if appellant’s lease was in force and effect at that time, it should have $10,181.80 deposited with the court’, and, if not, it should be paid to Holmes.

The record reflects that the first payment of- the rental upon appellant’s lease was deposited in the designated bank three days late. This failure on the part of the appellant to pay the rent on time automatically worked a. .forfeiture of the lease, and the only way to revive it was for Joe McGruder to waive the forfeiture by subsequently accepting the rents deposited in the bank, or by some other -method of waiving the forfeiture. He did not waive the forfeiture by any other method, but accepted the rental money in September, 1921..' At the time he acepted the rental, however, he had conveyed the land back to J. P. Holmes and had become Holmes ’ tenant. He had been Holmes ’ tenant eight or nine months when he received the rent'from the bank. He had no interest in the land at that time, as he had conveyed it back to Holmes for a consideration. It does not appear in the: record that Joe McGruder accepted the rent by and with the consent of Holmes, his grantee, and the burden rested upon appellant to prove a waiver of the forfeiture, for Holmes obtained the title thereto during the time the lease was null and void on account of said forfeiture. In other words, Holmes took the land free of any outstanding claim under the lease when Joe McGruder conveyed it to him, and no subsequent independent act of Joe McGruder'could thereafter ratify the lease so as to bind Holmes. It does not appear in the abstract that the delayed' payment of the rent, or the subsequent payments, had been brought to McGruder’s attention before he convened the land back to Holmes so that it could be said that he waived the forfeiture by silent acquiescence while he owned the land.

No error appearing, the decree is affirmed.


text:
    Elrod v. Board of Improvement of Paving District No. 45.
    Opinion delivered October 4, 1926.
    1. Statutes — retroactive operation — presumption.—Statutes are to be construed- as having only a prospective operation, unless the purpose and- intention of the Legislature, to give them a retrospective operation is expressly declared or is necessarily implied from the language used. ,
    2. Municipal corporations — improvement district — limit op cost. ' — Acts 1925, p. 548, limiting the cost of an improvement to 50 per cent, of the assessed valuation, did not apply where a peti- • tion for an improvement district, signed by a majority in value of the property owners, was filed before the- act became effective, though the petition was not acted upon by the .city council until after the act went into effect.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      B. E. Garter, for appellant.

      G. G. Pope,ioi appellee.
   Humphreys, J.

Pursuant to a petition filed with the city council of Texarkana, Arkansas, on the 10th' day of February, 1925, conforming to the general laws of the State of Arkansas, relating to improvement districts in cities and towns, said council passed an ordinance on. March 10, 1925, laying off and creating Improvement. District No. 45 in said city. After the passage of said, ordinance, in accordance with the law, a petition signed hy a majority in value of the owners of real property in said district was filed and duly presented to the city council on May 26,1925, in which-it was specified that thé cost. of the improvement should not exceed 195 per centum .of the assessed:value of the district, in-conformity to act 395 of the acts of the Legislature of 1921, which provided that any improvement might be undertaken which should, not exceed in cost the percentage specified in said petition of the .value of the real property in the district as shown by. the last county assessment.

The council set the petition down for hearing on the 23d day- of . June, 1925, notice was given in accordance with law, and, on the day set, the council heard the petition and found that the majority in value of the properly owners in the district had signed it, whereupon . said council elected Bernard Finley, E. C. Black and Milton Oats as members of the board of improvement, who qualified, by taking the oath as prescribed by law. .Flans, were then made for the improvement, which were approved by the council. The city council- then elected three resident electors of the district to assess the benefits to he received on account of the improvement of each lot, block or parcel of -real- property in the district, who certified and made an assessment of benefits based upon the majority petition in value, in which it was specified that the cost of the improvement should not exceed 195-per centum of the assessed value of the property in the district as shown by the last county assessment. , On February 23, 1926, the city council passed an ordinance levying and assessing the benefits against each piece of real property in the district in accordance with the report of-the’assessors.

At this juncture in the proceedings this suit was instituted by the appellant, a- real estate owner in the district, to prevent appellee from enforcing the assessment against the property in the district, upon the alleged ground that, under' the law, the cost of the improvements could not exceed the sum of 50 per centum of the assessed valuation' of the property in the district according to the last county assessment, whereas the estimated cost of the improvement is more than 100 per centum of said assessed valuation. .The facts set-out above constituted the gist of the bill filed by appellant.

The appellee filed a demurrer to the bill, which was sustained by the court, and, upon his failure and refusal to plead'further, his bill was dismissed for the want of equity, from which is this appeal.

Appellant’s sole contention for a reversal of the decree is that, after the majority petition in value of the property owners in the district had been set down for hearing by the city council, and after notice of the hearing had -been given, but before it was finally heard'on June 23, 1925, act 184 of the Acts of the General Assembly of 1925, amending act No.’ 395 of' the Acts of the General Assembly of 1921, had become effective and was applicable to the district. Act 395 of the Acts ’ of 1921 provided that any improvement might be undertaken which did not exceed in cost the percentage of the value of the real property in the district specified in the petition, and the petition specified that the cost of the improvement should not exceed 195 per- centum of the assessed value of the property in the district. Act 184 of the Acts of 1925 limited the cost of the improvement to 50 per cent, of the assessed valuation, except in cases where 75 -per cent, in value signed, the petition, in which case the cost was limited to 100 per cent.

The soundness of appellant’s conténtion must depend upon whether said act of 1925 was retroactive in effect. It made a'substantive change in the law, and was not entirely remedial in its nature. “The presumption is that all legislation is intended to act prospectively, and not retrospectively.” Black v. Special School Dist. No. 2, 116 Ark. 472, 173 S. W. 846, 1104. There is no declaration in the act that it should have a retroactive effect, and no language is used therein from which such effect is necessarily implied.

The following rule has been recently announced by this court: “It is presumed that all legislation is intended to act only prospectively, and all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used.” State v. K. C. & Memphis Ry. & Bridge Co., 117 Ark. 606, 174 S. W. 248; Special School District of Texarkana v. Board of Improvement of Paving District No. 13 of Texarkana, 127 Ark. 341, 181 S. W. 918.

The court is also committed to the following rule: “No statute will be given retroactive effect if it is susceptible of any other construction.” Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752.

The basis for the formation of local improvement districts in cities and towns is the consent of the majority in'value of the owners therein, so the petition is the foundation for the improvement. When the petition is signed by the majority in value of the property owners and-filed with the city council, that body must-consider it with reference to. the statutes then existing in order to carry out the intention of the Constitution. Sembler v. Water & Light Imp. Dist., 109 Ark. 90, 158 S. W. 972; Bell v. Phillips, 116 Ark. 167, 173 S. W. 864; Skipper v. Street Imp. Dist. No. 1, 144 Ark. 41, 221 S. W. 866.

Certainly the purpose of act 184, Acts 1925, -could not have been to destroy the foundation- or basis- of - districts in the process of formation in -the State. -It'was clearly passed to govern districts which should be organized after it became effective.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Maxey v. Wilson.
    Opinion delivered October 11, 1926.
    1. Sales — necessity of delivery of possession. — One claiming as buyer of machinery for drilling oil wells under bill of sale held not to have title as against judgment creditor of seller, where the property was not at the place specified in the bill of sale and there was no delivery, either actual or constructive.
    2. Sales — sufficiency of delivery of possession. — Where a bill of sale of machinery described it as located on the seller’s premises at a certain place, the subsequent shipment of machinery to such place to replace similar articles worn out was not a delivery to the .buyer.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      C. M. Wofford, for appellant.

      E. L. Matlock, for appellee.
   McCulloch, C. J.

This is an action of replevin, instituted by appellee to recover possession of a lot of personal property constituting tbe equipment, tools and machinery for drilling an oil. well, all of the property being situated in Crawford County, Arkansas. Appellant Maxey is the sheriff of the county, who took possession of the property under a writ of execution on a judgment in favor of appellant Harry E. Pane. Maxey was defendant below, and Pane was an intervener in. tbe action. There was a trial and judgment below, in favor of appellee, and both the defendant and the .intervener appealed.

.Appellee asserts title under an alleged sale to her by the B. P. L. Oil Company, a corporation, and Martin F. Pane and Charles W. Pane, who were officers, of. the corporation. Appellee introduced in evidence, in .support of her claim, a written bill of sale from said corporation and the two parties mentioned above, in consideration of the sum of $2,000, conveying property described as follows:

“Personal property located in Crawford County, Arkansas, near the town of Cove City, at which site the above-named parties are and have been drilling for oil, to-wit: One derrick complete, cables, sand-lines, engines, boilers,' casings, water-lines, steam-lines, belts, blowers, generators, eight-wheel, lumber wagon, one 1923 Gray automobile, all lumber on the ground for the purpose of building a shack; stems, sinkers, bailers, bits, rimmers, and all other tools, wrenches, and equipment of every kind and description, including tool-boxes and all containers that are now on the above- named premises and the property of the B. P. L. Oil Company, a corporation, and Martin Pane and Charles W. Pane.”

. The instrument above referred to was executed and dated December 18, 1923. Appellant Harry E. Pane is. a brother of the two grantors of that name in .the bill of sale, and they were all formerly stockholders and officers in the B. P. L. Oil Company, which was a foreign corporation domiciled at Tulsa, Oklahoma. The corporation was dissolved, and Harry E'. Pane retired from the business, and- the property and business of the corporation were taken- over by his brothers, Martin F. and Charles W. At that time the corporation was engaged in drilling an oil well near the town of Cove City, in Crawford County, Arkansas, and the equipment mentioned in the bill of sale was on the ground at that place, as specified in the bill of sale. Harry E. Pane instituted an action in the circuit court of Crawford- County against said corporation to recover compensation for services performed, and obtained a judgment for the recovery of a considerable sum of money. He caused execution to issue, which the sheriff levied on the property involved in this controversy, composed of'a long list of machinery and other equipment for drilling, such as boiler, engine, generator, drilling-line, wagons, and various other things. According to the testimony adduced at the trial, none of the property which the sheriff took under execution was at the place mentioned in the bill of sale (the town of Cove City) at the time of the .execution, of that instrument, and therefore did not fall within the description specified therein. The log wagon taken under execution was in the State of Mississippi at that time, and was shipped to Arkansas long after the execution of the bill of sale; and all of the other articles involved were at Tulsa, Oklahoma, and were not shipped to Arkansas until some time in May, 1924.

Appellee is the mother of the Panes, and, according to the testimony adduced in her behalf, the property in controversy was purchased by the corporation with money borrowed from her. At the time of the execution of the bill of sale, the property at Tulsa had been purchased from the International Supply Company, but was being withheld from shipment until payment should be made. Thereafter the property was paid for out of funds borrowed from appellee, and it was then, as before stated, shipped to Arkansas.

- The contention of appellants is that the evidence is not sufficient to support the judgment, in that it does not show a completed sale so as to pass the title to appellee as against .creditors of the corporation. An analysis of the testimony in the case leads us to the conclusion that this contention of appellants is sound. Delivery, either actual or constructive, is essential to the consummation of a-sale of. chattels, and the title does not pass until there has been a delivery. Brown & Hackney v. Loveless, 152 Ark. 540, 239 S. W. 21, and cases therein cited. Now, there is no testimony of any kind of delivery of the property involved in this controversy. It is plain that the property is not described in the bill of sale, for that instrument covers property “located in Crawford County, Arkansas, near the town of Cove City.” The property in controversy was then at Tulsa, Oklahoma, and in the State of Mississippi, and therefore could not have been at the place named above so as to bring it within the terms of the bill of sale. There is some proof to the effect that the property held at Tulsa was paid for. with money borrowed from appellee, 'but there is no proof of delivery, either actual or constructive, to appellee. The property in controversy, subsequent to the execution, of the bill of sale, was shipped to Crawford County and delivered to the place where the oil well was in process of being drilled, but this did not constitute a delivery to appellee, for she was not in possession of the premises and never at any time had any control over this property. It is true, as contended by counsel for appellee, that most of the property in controversy — not all of it — was shipped there to take the place of other property which had been worn out in conducting the drilling operations, but this did not constitute a delivery to appellee. The engine and boiler were used, according to the testimony, to replace similar articles worn out, and most of the other articles and property in controversy were shipped there for the same purpose. But the mere fact that they were to be used in the place of articles worn out did not bring them within the terms of the bill of sale or constitute a delivery so as to pass the title to appellee.

The evidence being insufficient, • the judgment is* reversed, and the cause remanded for a new trial.


author: Wood, J.

text:
    Buchanan v. Roddy.
    Opinion delivered October 11, 1926.
    1. Boundary — parol agreement.- — -Where there is uncertainty as to the boundary, or the owners of adjoining lands are in dispute as to the dividing line, the parol agreement of such owners as to the boundary establishes the line, and, when followed by possession with reference thereto, is conclusive on them.
    2. Boundary — parol agreement — evidence.—In an action involving a dispute as to a boundary line, it was error to exclude the testimony of a witness in whose presence a dispute as to such boundary had been settled by a verbal agreement of the owners, establishing, the line as claimed by defendant.
    Appeal from Woodruff Circuit Court, Northern District; E. D. Robertson, Judge;
    reversed.

      W. J. Dwngan, for appellant.

      J, F. Summers, for appellee.
   Wood, J.

This action was instituted hy the appellees against the appellant. The appellees alleged that they are the owners of the south half of the southeast quarter of the northwest quarter of section 30, township 7 north, range 3 west, and the east half of the northeast quarter of section 25, township 7 north, range 4 west, Woodruff County, Arkansas. They deraigned title from the United States Government through mesne conveyances to Ed Roddy and as beneficiaries under the will of Roddy. They alleged that, in'1923, the appellant .constructed a fence inclosing 3% acres of appellees’ land, describing the lands so inclosed; that the appellant and her tenants are in possession of the land without the consent of the appellees. They prayed judgment for possession, and for damages.

The appellant answered, denying the allegations of the. appellees’ complaint, and alleged that she was the owner and has the right of possession to the northwest quarter of the southwest quarter of section 30, township 7 north, range 3 west, and also to the northeast quarter of the southeast quarter of section 25, township 7 north, range 4 west. The appellant deraigns title through the will of her grandmother, Sallie J. Mason, devising the lands to appellant and. appellant’s sister, Eva Moore, and a deed from Eva Moore to appellant. The appellant alleged that, about 28 years ago, her grandmother and Ed Roddy, then owner of the lands claimed by the appellees, entered into an oral agreement by which a boundary line was established between their lands, as described in the complaint and answer, running from a stake driven at the northeast corner of the northwest quarter of the southwest quarter of section 30, township 7 north, range 3 west, running west to an old fence-row separating the lands of Sallie J. Mason and Ed Roddy; that the fence which appellees alleged to be oh their lands runs south of the boundary line as above established,. and is on appellant’s land. The appellant alleged that the line' established by agreement as above alleged had been recognized by Roddy, the appellees’ predecessor in title, for more than twenty years, and that the appellant and those under whom she claims had been in the actual, adverse, open and notorious possession of the lands for more than twenty years.

There was an agreement of counsel in the record as follows: “It is agreed that the deeds mentioned in the pleadings may be treated as in evidence and that each party is the owner of the respective lands mentioned in the complaint and answer, and that the question is whether the fence moved is on the land of the plaintiff or the defendant.”

Mrs. Mamie Wilkes, if she* had been permitted to testify, would have stated that, 28 years ago, in her presence, Mr. Ed Roddy and her mother, Mrs. Sallie Mason, settled a dispute over the line between their lands, which is the line herein involved, by having said line located by a surveyor, and that the land south of the agreed line has since been recognized by the owners of the lands on each side for more than 20 years, or since this agreement; that the fence in controversy in this suit is south of this agreed line, and would be on Sallie Buchanan’s land. There was testimony tending to prove that a certain fence, designated by witnesses and marked on certain maps and plats in evidence as “new fence,” was on the land in controversy claimed by the appellees. The court refused to permit the offered testimony of Mrs. Wilkes to be introduced, to which ruling the appellant duly excepted.

At the conclusion of the testimony, and at the request of counsel for appellant, the court instructed the jury as follows: “You are instructed that, if you believe from a preponderance of the evidence that the fence which has been designated as ‘new fence’ is on the plaintiff’s land, you will find for the plaintiff. If the fence is on the defendant’s land, you will find for the defendant.” •

The jury returned the following verdict: “We, the jury, find for the plaintiff.” Judgment was.entered in favor of the appellees, from which the appellant duly prosecutes this appeal;

The court erred in not admitting the testimony of the witness, Mrs. Mamie Wilkes, offered by the appellant. In Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574, we held, quoting syllabus: “Where there is uncertainty as to the boundary, or the owners of adjoining lands are in dispute as to the dividing line, the parol agreement of such owners as to the boundary establishes the line, and, when followed by possession with reference thereto, is conclusive on them. ’ ’

And in Cox v. Daugherty, 75 Ark. 395, 36 S. W. 184, we held, quoting syllabus: “Persons owning adjacent lands may, by agreement, establish the boundaries between-their lands, regardless of the lines of the government survey.”

Under the doctrine of the above cases, Mrs. Wilkes was a competent witness and her testimony was relevant to the issue. This testimony should have been admitted and considered by the-jury in connection with the agreement of counsel and all the other testimony adduced in evidence. The agreement of counsel, to-wit: “That the deeds mentioned in the pleadings may be treated as in evidence, and that each party is the owner of respective lands mentioned in the pleadings, and that the question is whether or not the fence is on the land of the plaintiffs or on the land of the defendant,” should be interpreted in connection with the pleadings and all the other evidence in the cause. When this is done, it is obvious that the parties meant by the “agreement of counsel” to treat the deeds, mentioned in the pleadings of the respective parties, as muniments of their title to the lands described therein, about which there was no controversy; that the only question was whether the “new fence,” referred to by the witnesses and marked on the plats in evidence as the “new fence line now being erected,” was on the land of the plaintiffs or the land of the defendant, as claimed by them in their respective pleadings. In other words, the- issue between the parties, as shown by the pleadings, was the title and right of possession to a parcel of land of three and one-half acres, situated on the boundary line of the adjoining owners, appellees and appellant.

Appellees claimed that, according to the true boundary line, they were entitled to the land in controversy which appellant had inclosed by the “new fence,” which was on appellees’ land, while appellant claimed that the boundary line which had been established by the predecessors in title of the respective parties as the true line between them, would bring the land in controversy within her inclosure, and that the “new fence” was erected on her land, and that she and her predecessors in title had been in the adverse possession of the parcel of land in controversy for more than twenty, years.

The entire record makes a typical case for the application of the doctrine announced in Taylor v. Rudy and Cox v. Daugherty, supra.

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


author: Hart, J.,

text:
    Bank of Hunter v. Gros.
    Opinion delivered October 11, 1926.
    1. Banks and banking — negligence in collecting draft. — Under Acts 1921, p. 514, § 14, a bank receiving for collection a draft payable in another city is not liable for failure to make' such collection where it employed reasonable care in selecting a proper correspondent.
    2. Banks and banking — negligence in collecting draft. — Where a draft payable in another city was, by mistake of correspondent bank, returned to the collecting bank unprotested and uncollected, and, by the drawer’s direction, was again sent for collection and was returned protested, the collecting bank was not shown to be negligent in selecting a correspondent or in forwarding the draft, and was not liable for the amount of the draft.
    Appeal from Woodruff Chancery Court, Southern District: A. L. Hutchins, Chancellor:
    reversed.

      STATEMENT OP PACTS.
    J. B. Gros brought this suit in the circuit court against the Bank of Hunter to recover $2,261.45, alleged to be due him on checking account, and in the sum of $5,000 for damages for the wrongful refusal of said bank to cash his checks when he had sufficient funds on deposit with which to pay the same. The Bank of Hunter became insolvent, and the State Banking Commissioner was substituted as the defendant in the action. Without objection, the case was transferred to equity, and tried there. Before the trial J. B. Gros died, and Loretta O’Keefe Gros was appointed administratrix of his estate. The material facts aré as follows:
    In January, 1920, J. B. Gros was a rice buyer in the vicinity of Hunter, Arkansas. On the 29th day of January, 1920, J. B. Gros purchased a car of seed rice from Dr. Burns. Gros shipped the car of rice to C. Snoke, Loreauville, Louisiana, and drew a draft on him for $4,754.45 in payment of the car of rice. The draft on Snoke was attached to the bill of lading, and the same was deposited to his credit in the Bank of Hunter. The Bank of Hunter issued to him a deposit slip, showing the amount of the deposit. - A check was at once drawn against this account, payable to Dr. Burns, for $4,080.22, which was the purchase price of the rice in question. The Bank of Hunter immediately forwarded the draft to J. B. Gros for collection to its correspondent, the American Bank of Commerce & Trust Company of Little Bock, Arkansas.
    About the 1st of March, 1920, the draft, with the bill of lading attached, was returned to the Bank uf Hunter by its correspondent. The cashier of the Bank of Hunter communicated with J. B. Gros, and Gros, after looking over the draft and bill of lading, requested the cashier of the Bank of Hunter to return the draft with the bill of lading attached to the bank at Loreauville, Louisiana. The draft was then returned to the Bank of Hunter duly protested, for the reason that Snoke refused to receive the car of seed rice, claiming that it was not up to sample. The cashier of the bank at Loreauville, Louisiana, wrote the Bank of Hunter that the draft Avas returned by it the first time to the correspondent of the Bank of Hunter, because the rice was not received by Snoke on account of not being up to sample,
    With the knowledge and consent of J. B. Gros, the car of rice was sold for what it would bring, and the pro-. ceeds were credited to an overdraft to the .account of J. B. Gros in the Bank of Hunter. J. B. Gros had other transactions with the Bank of Hunter, and drew checks on the bank on the theory that the bank was liable to him for the full amount of his draft on C. Snoke for the car of rice. The bank refused to pay the checks on the theory that it was only responsible to J. B. Gros for the amount which he received for the sale of the car of rice at Loreauville, Louisiana, which was sold with the knowledge and consent of Gros.
    The chancellor found the issues in favor of the plaintiff, and rendered a decree against the defendant for $2,939.85. An appeal was duly prosecuted to this court.

      Roy D. Campbell, for appellant.

      Bogle <& Sharp, for appellee.
   Hart, J.,

(after stating the facts). The correctness of the decree of the chancellor depends upon the construction to be given to an act of the General Assembly of 1921, amending the original act for the organization and control of banks. General Acts of 1921, page 514. Section 14 of the act is set out in full in Farmers’ & Merchants’ Bank v. Ray, 170 Ark. 293, 280 S. W. 984, and need not be repeated here.

In this case the court held that, under the section referred to, a bank receiving for collection a check or draft payable in another city or town, and having employed reasonable care to select a proper correspondent, is not liable for the default or negligence of such correspondent in the collection of the check or draft. The evidence in this case was not sufficient to warrant the chancellor in finding that the Bank of Hunter was guilty of any negligence in the selection of its correspondent,'and it did not warrant a finding that there was any negligence on the part of -the Bank of Hunter in forwarding the draft for collection.

•The undisputed evidence shows, that the Bank of Hunter forwarded the draft for collection through its correspondent in Little Bock in the regular course of business, and that the draft was at first returned uncoL lected without being protested, but that this was not through any default ón the part of the Bank of Hunter. It happened simply- through a mistake in the Louisiana bank to which the Little Bock correspondent of the Bank of Hunter had forwarded the draft for collection.' Immediately on the return of the draft, the Bank of Hunter notified Gros, and," pursuant to -his directions,' sent the draft to the Louisiana bank for collection. The. draft was then returned by the Louisiana-bank, duly protested for nonpayment because Snoke refused to receive the car of rice and pay for same, claiming that it- was not up to standard.

These facts show that there was' no negligence whatever on the part of the Bank of Hunter, and for that reason, under the rule in the case above cited, the Bank of Hunter was not liable to Gros.

It follows that the decree of the chancery court must be reversed, and, inasmuch as the facts appear to have been fully developed, the cause of action will be dismissed.


text:
    Goode v. Pierce Oil Corporation.
    Opinion delivered October 11, 1926.
    1. Explosives — jury question. — Whether, under the- evidence, • defendant was guilty of negligence in selling a mixture of gasoline and kerosene for the latter held .for the jury. ...
    2. Evidence — judicial knowledge. — It; is. matter of common .knowledge that refined kerosene is used to furnish light, and. as fuel .for oil stoves, and in lighting fires.
    3. Explosives — contributory negligence. — Where plaintiff held a kerosene can about one and a half inches from the top," of a ' stove containing fire and poured a liquid supposed to be kekosene but which' contained gasoline also, and an explosion .followed, injuring her, held, in an action for negligence in. selling the mixture,. that plaintiff was guilty of contributory negligence, as matter of law.
    Appeal from Mississippi Circuit Court, Osceola District; W. W.-Bandy, Ju-dg*e;
    affirmed.
    STATEMENT OP PACTS.
    • Rachael Goode.-instituted this action against the Pierce Oil Corporation and another to recover damages for injuries received by her, alleged to have been cáused by the negligence of the defendants. It was claimed that the Pierce Oil ‘Corporation negligently -sold' to H. B. -Smith, a retail grocer, a mixture of kerosene and gasoline for1 refined coal oil.
    According tó the evidence - of the plaintiff, she was injured on January 19, 1924. She had- some greenwood in her- stove, and it was burning a little bit. She thought she would increase the flame by pouring coal , oil on -it. She had - a large can-,, which would contain five or ten gallons of oil, and which had about a gallon'and a half of oil in it. There was a small blaze in the wood, and she wanted to -increase it. She held -the can about an inch and a half from- the top -of the stove and began to pour the oil on the blaze. When she had-poured out about-a tablespoonful of oil, there was an explosion, and the flame ran out from the top- of the can and burned her hand. It seemed .to be an explosion. At any rate, the oil in the can caught on fire, ran out of the spout, and burned her hand.
    She had purchased the oil from H. B. Smith for kerosene, and he, in turn, had purchased it from the Pierce Oil Corporation for kerosene. Some of the oil remained in the can after the explosion. It was examined by a chemist, and found to be a mixture of gasoline and kerosene. The United States specifications for kerosene provided that it must not flash at less than 140 degrees Fahrenheit. The oil in question flashed at 60 degrees F.
    The circuit court directed a verdict in favor of the defendants, on the ground that the plaintiff was guilty of contributory negligence. From a judgment rendered in favor of the defendants, the plaintiff has duly prosecuted an appeal to this court.

      J. T. Coston, for appellant.

      Malcolm W. Gannaway and A. Carlyle Gdnnaway, for appellee.
   Hart, J.,

(after stating the facts). Plaintiff’s cause of action is based upon the negligence of the defendants in selling to her what she had a right to assume was standard kerosene, when the oil purchased was' a mixture of kerosene and gasoline.

The evidence was sufficient to allow the question of negligence of the defendants to be submitted to the jury. It tended to show that the oil, which was purchased by the plaintiff for kerosene, was a mixture of kerosene and gasoline, which flashed at 60 degrees Fahrenheit. According to the United States specifications, kerosene should not flash at a point lower than 140 degrees F.

It is a matter of common knowledge that refined kerosene is used to furnish light and as fuel for oil stoves. It is also commonly used in kindling fires. Hence, in the absence of contributory negligence by the plaintiff, the evidence for the plaintiff was sufficient to allow a recovery by her. 11 R. C. L. 671 and 672, and cases cited, and 25 C. J. 202, and cases cited.

We are of the opinion, however, that, under the plaintiff’s own testimony, we are compelled to say, as a máttér of law, she was guilty of contributory negligence. It is true that she purchased the oil in question for standard kerosene, but she poured the oil in the stove, knowing that the're was a small flame in the fire burning there. She held the can only about one and a half inches from the top of the stove, and knew that there was between a gallon and a gallon and a half of oil in it.

While the evidence for the plaintiff tends to show that standard kerosene is not exploded by being poured onto a flame, still the undisputed evidence shows that it would explode if poured upon live coais. The plaintiff testified that there was only a small flame to 'the wood in the stove, and she might have expected that, in pouring the oil on it, she would extinguish -the -flame ánd thereby cause the kerosene to explode. It will be remembered that she only held the can about one and a half inches from the top of the stove.

The decided cases and the authorities above cited hold that it is not negligence, as a matter of law, to use kerosene in kindling a new fire. The reason is that, in such a case, there is no possibility of causing an explosion by pouring kerosene on the wood. The wood is not ignited until after the person has ceased to pour the kerosene on it. A flame is then applied to the wood, and by no sort' of means could this have caused an explosion of the oil in the can.

' The casé is quite different when the oil is being poured from the can onto live coals or éven a small .flame. As we have already seen, the'pouring of the kerosene onto the small flame might extinguish' it and thereby cause the coal-oil "which came in contact with the burning wood to explode. In such a cáse, the better reasoning is to hold that'the party using the'kerosene is guilty of sttch contributory negligence as to bar him from recovery. Morrison v. Lee (N. D.), 113 N. W. 1025; Du Bois v. Luthmer (Iowa), 126 N. W. 147; Riggs v. Standard Oil Co., 130 Fed. 199; and McLawson v. Paragon Refining Co., 198 Mich. 222, 164 N. W. 668. Other authorities bearing on the question will be found in the volumes of Ruling Case Law arid Corpus Juris referred to above.

It follows that the trial court was right in directing a verdict for the defendants, and the judgment will therefore be affirmed:


author: Smith, J.

text:
    Mutual Aid Union v. Hollandsworth.
    Opinion delivered October 11, 1926.
    1. Insurance — release—burden op proof. — In an action on a benefit certificate of insurance, where plaintiff had executed a release in settlement for the death claim, the burden was on her to show that such release was invalid.
    2. Insurance — conclusiveness op settlement. — Where defendant insurance company’s adjuster had represented that the company was not liable on its benefit certificate and offered a small settlement, which plaintiff did not accept until she had made a full independent investigation, the settlement was binding, even though plaintiff thereby surrendered rights which the law would have sustained.
    3. Insurance — liability of assessment company. — A- fraternal benefit society is not estopped to deny liability on a .certificate because the deceased’s death claim was included in a list for which assessments were levied, where there was no showing that the company made any false entry on its books as to the amount paid to the claimant in settlement, and under its system of operation there was no way to provide funds to pay her claim except by assessments on surviving members.
    Appeal from Sharp Circuit Court, Southern District; John G. Ashley, Judge;
    reversed.

      J. F.' Walker and Duty & Duty, for appellant.

      8. M. Bone, for appellee.
   Smith, J.

This is an action instituted by appellee on a benefit certificate of insurance in the sum of $1,000 to recover an unpaid'balance alleged to be due, there having already been- paid a part of the sum named in the certificate. Appellant, a fraternal mutual insurance company, hereinafter referred to as the company, defended on the ground that there was no liability at all, on account of the fact that the certificate had lapsed for the nonpayment of dues, and also on the ground that there had been a settlement of the disputed claim and that appellee had executed a release in consideration of the sum agreed upon, and which had been paid her..

To.this answer appellee filed a reply in which she denied that the certificate had lapsed, for the reason-that the assessment which the insured had failed to pay had not been levied by any officer of the company authorized so to do, and she alleged that the alleged release was obtained through the fraud of an agent of the company by reason of certain false statements made to her.

The method of operation of the company is fully set out in the opinion in the case of Mutual Aid Union v. Perdue, 162 Ark. 551, 258 S. W. 375, which was a suit against the appellant company, and need, not be repeated here. One of the by-laws of the company provided that* if an assessment was not paid within the time limited for that purpose, the benefit certificates should become void, but there was a provision in the by-laws by which the insurance might be reinstated provided, at the time of reinstatement, a certificate was furnished showing that the. insured was then in good health.

The certificate here sued on was' made an exhibit to the complaint, and was dated February 1, 1912, and the insured died on the 15th day of April, 1924. Between those dates the certificate of the insured had lapsed more than once, but had been reinstated upon a certificate, being furnished, as required by the by-laws of the company, to the effect that .the insured was in good health at the time of his reinstatement. When -the insured died, proof of his death was furnished, and' it appeared from this proof that the insured had been in bad health for several years —was, in fact, suffering from tuberculosis and- ’ other ailments and was so afflicted at the time of the- last reinstatement, that date being June 27,1923. .

With this information before it, the company took the position that there was no liability under the certificate, and its adjuster so advised appellee, but, after some negotiation with appellee,' the adjuster agreed to pay her the sum of $253 in full settlement of. all claims or demands based on the benefit certificate. This sum was arrived at by adding, all the assessments paid' by thé insured, and calculating interest thereon to the time of his death, and adding $60 to cover funeral expenses, and, upon delivery of the check to appellee, she executed, a receipt or acquittance in proper form of all claims under the "certificate.

The only false representation claimed to .have been made to appellee by the adjuster to secure the settlement evidenced by the receipt was the statement that the company was hot liable because the’reinstatement had been induced by 'a false, statement of the insured concerning the condition of his health.’ It was not' contended that the appellee lacked mental capacity to' understand the effect of the receipt, nor was there any claim of duress, nor was it contended that she was deceived as tó the character of the instrument she signed or the effect of its execution. The contention is merely that the adjuster falsely advised her that the certificate had lapsed and that nothing could’ be recovered by a suit on it, whereas the certificate had not lapsed, for the reason that no valid assessment had been levied which' the insured had failed to pay.

The contention that there had been no. omission to pay a valid assessment is based upon .the failure of the company to offer proof that the alleged delin’quént assessment had been properly levied by the directors’ of the company, which we held, in the case of Mutual Aid Union v. Perdue, supra, the company must show to sustain the defense’ there made that’the'certificate had lapsed because of the omission to pay a’delinquent assessment.

No testimony .was offered at.the trial from which this appeal comes concerning the, manner in which the assessment in question was levied, but. there was offered in'evidence the application of the insured for reinstatement, which recited that his'certificate had become delinquent for nonpayment of an assessment, and the application also contained the following statement: “And for the purpose of again placing same in good standing, I hereby certify that I am in good health, and authorize you to attach this certificate to my application for membership, and agree that it shall become a part thereof. I am in good health, as I have been for past few years.” The undisputed evidence, including that of appellee herself, is to the effect that, on the date when this statement was made, it was not true, as the insured was then in bad health.

Appellee admitted that, after receiving the check, she did not cash it for four or five weeks, and that her reason for not doing so, as stated by herself, was that “I did not know whether that was all I would get or not, and I did not know whether to cash it or not, and I just held it.” Appellee also admitted that, during the time she held the check, she consulted with her neighbors as to what she should do, and finally advised with an attorney as to what action she should take, after which she cashed the check. She did • not advise with' the attorney until after she had executed the receipt and had received the check, but she admitted that the check was not cashed until after she had consulted with' the attorney.

The validity of the provision of the by-laws of the company whereby a certificate forfeits for failure to pay assessments is not questioned; the contention is that the company did not prove that any valid assessment had been levied, and that it was therefore in no position to assert that the certificate had forfeited, although it was shown that assessments had not been paid, and that'it was a fraud for the adjuster to represént to appellee that the certificate had forfeited.

The case was submitted to a jury under instructions to which numerous exceptions were saved, and there was a verdict and judgment for appellee, from which is this appeal. We do not diseu»« these instructions, for the reason that no right to recover was shown by appellee, when the testimony is viewed in the light most favorable to her.

The doctrine of the case of Security Life Ins. Co. v. Leeper, ante p. 77, and that of Mutual Aid Union v. Whedbee, 168 Ark. 1017, 272 S. W. 255, are both applicable here, and the doctrine of either case would prevent a recovery.

It will be remembered that appellee -had executed a receipt and full acquittance of all demands under the certificate sued on, and the burden was therefore on her to show -that this receipt was void. Until this fact was shown, she had no right to sue. She undertook to discharge this-burden by alleging that the company had not shown that any valid assessments had been levied. The only proof offered on this allegation was the statement .contained in the insured’s application for reinstatement, which recited-that the policy had lapsed. Appellee failed therefore to show that the execution of -the receipt had been procured by fraud. '• "tHilf]

In the Perdue case supra, the insurer set up the affirmative defense that the policy had lapsed, and the burden was therefore on it to show that fact. There was no question of settlement in that case. Here the first question which arises is whether the execution of the receipt was obtained by fraud, and that fact was not shown. The statement of the adjuster made to appellee may have been true. The policy may have lapsed. The only testimony offered on the question is to the effect that the policy had lapsed. There was a failure therefore to show that the receipt was void.

The case of Mutual Aid Union v. Whedbee, supra, is applicable here, for the reason that it does not appear that appellee relied upon the representations of the adjuster, certainly not in cashing the check. According to her- own testimony, she was not satisfied that she could recover only the amount of the check. -She took four or five weeks to consider the question, during which time she. consulted her neighbors, and finally her attorney, after which she took the affirmative step of cashing the check. In the Whedbee" case, supra-, the syllabus reads as follows: “WÍiere defendant company’s adjuster had represented that the company was not liable on a benefit certificate, and offered a small settlement, but plaintiff did not accept it until he had made a full independent investigation, the settlement was binding^ though plaintiff thereby surrendered rights which the law would have sustained.”

It is true this court held, in the case of Industrial Mutual Indemnity Co. v. Thompson, 83 Ark. 575, 104 S. W. 200, that, where a release of the insurer’s liability on a policy was obtained by fraud, the beneficiary was not required, as a prerequisite to the maintenance of his suit, to tender the consideration paid for such release, but the amount so paid could be deducted at the trial from the amount to which the beneficiary was entitled. But the insured in that case had done no affirmative act after the discovery of the fraud. Here appellee, after making the settlement, took counsel as to whether she should cash the check, and, after an independent -investigation, she ratified the settlement by cashing it.

It is finally insisted that the company is estopped from denying liability for the reason that the death claim of appellee’s husband was included in a list of claims for which assessments were levied to raise money from the holders of benefit certificates. There is no showing or contention that the company made any false entry on its books as to the amount paid appellee. The company did pay appellee a substantial amount, and, under its system of operation, there was no way to provide funds to pay this and other claims except by assessments on surviving members.

Appellee has shown no reason which would warrant a court or jury in setting aside and annulling her voluntary settlement, and the judgment of the court below must therefore be reversed, and, as the case appears to have been fully developed, it will be dismissed, and it is so ordered.


text:
    Rose City Mercantile Company v. Miller.
    Opinion delivered October 11, 1926.
    1. Landlord and tenant — right to lien. — Where, after leasing a farm, the owner conveyed the land to her two daughters, they ' were entitled to enforce their lien for the rents subsequently accruing.
    2. Principal and agent — estoppel.—An agent who collected rents for a landlord cannot question the authority under which he acted.
    3. Corporation — liability for acts of president. — Where a corporation, whose president as agent for a landlord collected and converted rents by applying them to pay debts due by the tenant to the corporation, the corporation is liable for such rents.
    4. Landlord and tenant — waiver of lien. — By authorizing-a mortgagee of a tenant’s cotton to sell it and apply the proceeds to ' ’ the payment of rents, the landlord does not waive his lien in favor of such mortgagee, though the cotton has passed to purchasers free from such lien.
    5. Landlord and tenant — enforcement of lien. — Equity has-jurisdiction of a suit by a landlord against a mortgagee of the tenant’s crop, which, having authority to sell the tenant’s crop and apply the proceeds to payment of rent, wrongfully converted a portion of such proceeds.
    6. Landlord and tenant — conversion of crop — liability.—Where the president of a corporation, which was a mortgagee of a tenant,- sold the tenant’s crop on which there was a landlord’s lien, the corporation, by appropriating a part of the proceeds, became liable to the landlord for an amount not exceeding the rent.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Wills & Strang ways, for appellant.

      J. G. Marshall, for appellee.
   Smith, J.

Certain preliminary pleadings and motions were filed in this cause and are discussed in the briefs, but a stipulation filed upon the submission of the case in the court below renders it unnecessary to consider them. In this stipulation it was agreed “that this cause shall be tried as a suit brought for the purpose of enforcing the rent lien of plaintiffs against defendant for cotton appropriated by it on which the rent had not been paid ’ ’

In support of this cause of action the plaintiffs offered testimony to the following effect: Mrs. H. T. Urquhart, by written contract, leased her farm to two tenants. One portion of the farm was leased to Son Lewis, and another portion to Crawford Romus. The rent of one tenant was $1,750, and the rent of the other was $1,250. After executing these lease contracts, Mrs: Urquhart conveyed the farm to her two daughters, Mrs. Miller and Mrs. Ragland, who are the plaintiffs in this suit. W. H. Miller, the husband of one of the plaintiffs, was agent for both the plaintiffs in the collection of the rents. The Rose City Mercantile Company, hereinafter referred to as the company, a corporation, of which J. L. Atkins was president, made advances of money and supplies to sharecroppers of Lewis and Romus to enable them to make a crop during the year 1923, and, to secure these advances, took a mortgage on the crop of these sharecroppers.

Miller testified that Atkins state'd to him that he would like to handle the crop to protect the interest- of the store, which both understood to mean the Rose City Mercantile Company, and that, pursuant to this conversation, he wrote Atkins the following note:

“Little Rock, Ark., August 7, 1923.
“Mr. John L. Atkins,
North Little Rock, Arkansas.
“Dear Sir: Referring to our conversation, please find below memo of various rent notes maturing on or before November 1, 1923.
Crawford Romus.........................................................$1,250.00
Son Lewis ........................................................................... 1,750.00
Wm. Holman .................................................................. 250.00
“You are authorized to collect the above'rent notes out of the first cotton, when picked, ginned and sold, you to furnish the Union Trust Company of Little Rock, Arkansas, each Monday morning, weekly, with statement showing amount of cotton ginned and sold and to whom sold, and to deliver the proceeds as collected to the Union Trust Company, to be credited on the above notes until final payment is made.”

Miller further testified that he later went away on a trip, assuming that the cott.on would be sold by Atkins and the proceeds applied to the payment of the rent, but, upon his return, he found that, after selling -the cotton, Atkins had applied only one-half the proceeds of the- crop of the sharecroppers to the accounts of the plaintiffs at the bank. The other half had been credited to the accounts of the sharecroppers with the company. This suit was brought against' the company to recover the proceeds of the sale of the sharecroppers’ cotton.

There are but few questions of fact in the case, the principal one being the capacity in which Atkins acted in selling the cotton, it being one of the contentions of. the company that Atkins was a mere trustee, whose actions herein set out did not render it liable for the proceeds of the sharecroppers’ cotton, although' this money was received and applied by it to the credit of the sharecroppers’ accounts.

Another statement of this contention is that the company had nothing to do with the cotton or proceeds of the sale, except that Atkins placed cash in the hands of the company-as trustee to hold and pay out on the order of Atkins, who bought cotton for the Lesser-G-oldman Cotton Company, when Atkins made out tickets showing the sum due for cotton purchased and to whom the money should be paid, and that, in selling the cotton pursuant to the authority conferred in the note from Miller, set out above, Atkins was not the agent of the company, and the company is not therefore liable for the destruction of the plaintiffs’ landlord’s lien.

It is also contended that the plaintiffs did not show such ownership of the land as authorized them to maintain this suit for conversion, there being no relation of landlord and tenant between the plaintiffs and the company, and further, that it was not shown that 'the plaintiffs had not been paid their rent.

It is finally insisted that, as the cotton had been sold to a purchaser having full knowledge of the existence of a landlord’s lien, and that the rent had not been paid,' the plaintiffs should have attached the cotton in the hands of the purchaser, and therefore the cause, which was brought in equity, should have been transferred to law and the plaintiffs required to proceed against the purchaser of the cotton.

The chancellor held the company liable for the conversion of the half interest'in the crop belonging to the sharecroppers, and this appeal is from the decree entered in accordance with that holding.

It may be first said that we think the undisputed testimony shows that the plaintiffs were the owners. of an undivided half each of the land on which the crops were grown, and they therefore had a landlord’s lien on the crops to secure the payment of their rent. Moreover, Atkins was constituted agent for the plaintiffs to collect their rents, and, having acted in that capacity, he must account to his principals as such. Under the agreement Atkins undertook to collect the rent for the plaintiffs, and, under this authority, he sold the cotton and paid them one-half o.f the proceeds, and he will not be heard to question the authority under which he acted.

We think it. a mere play upon words to attempt to distinguish between Atkins and the company in the conversion of this cotton. Miller testified that it was understood in his conversation with Atkins, prior, to writing-the note set out above, that Atkins was the president of the company, and the purpose of the arrangement was to enable Atkins to protect the interests of the company. The undisputed.testimony shows thaff after each sale off cotton, the company remitted one-half of the proceeds to the Union Trust Company, the depository designated in the Miller note, and these letters were written and signed by the company by Atkins as president. Moreover, the undisputed testimony shows that the proceeds of the sale of the interests of the sharecroppers were credited on the books of the company to the accounts of these sharecroppers, so that there can be no question but that the company was a party to and the beneficiary of the conversion of the cotton.

As to the proposition that the testimony did not show that the rent had not been paid, but little need be said. Atkins handled and sold all the cotton, and the statement rendered by the company of the sales -of the cotton showed that the total proceeds of all the cotton paid only a small part of the rent.

It is conceded that the sharecroppers were liable only for the pro rata portion of the rent due on the land cultivated by them, but the proceeds of the sale of their cotton were insufficient to pay that part. During the progress of the trial the court stated that the plaintiffs would have to make a showing that the rent due upon the land of each subtenant was more than the amount of rent received by the plaintiffs, whereupon counsel for the company stated: “Counsel: It is much less. I will make a statement for the stenographer. The amount of cotton raised by each subtenant produced less revenue than the amount of rent due from each said subtenant.” This admission was evidently made to avoid the delay of proving what was obviously a fact easily susceptible of exact proof.

There was no waiver here of the landlord’s lien in favor of Atkins or the company. The agreement authorized Atkins to sell the cotton, and the title to the cotton passed to the purchasers free of the landlord’s lien, but that fact did not deprive the plaintiffs of their right to sue for the money paid for the cotton. The company was a mortgagee, and authority to it to sell the- cotton and apply the proceeds to the payment of the landlord’s rent was not a waiver of the lien. Bigham v. Cross, 69 Ark. 581, 65 S. W. 101; Foster v. Bradney, 143 Ark. 319, 220 S. W. 811; First Nat’l Bank v. DuVall, 156 Ark. 377, 246 S. W. 471.

Under the facts stated, the proper action was brought to impress the lien on the proceeds of the cotton. The sale of the cotton was authorized by the plaintiffs, and a suit at law by attachment to enforce the lien against the purchasers who had bought with knowledge of the landlord’s lien would have involved a repudiation of the contract of agency under which the cotton was sold, even though the cotton could have been found.

The right here asserted is that of the landlord to sue one who has knowingly converted cotton upon which a lien exists, for the proceeds of such conversion, to the extent of the debt secured by the lien. This right was asserted in the early case of Reavis v. Barnes, 36 Ark. 575, and has since been frequently reaffirmed. Two of the later cases on the subject are Sledge & Norfleet Co. v. Hughes, 156 Ark. 481, 247 S. W. 1077, and Walker v. Rose, 153 Ark. 599, 241 S. W. 19, and these last cases cite other intervening cases.

In the case of Walker v. Rose, supra, it was said: “'When the bank, through its cashier, advised Walker (a tenant) to ship cotton to a cotton factor out of the State, the cashier knowing at the time that the appellee (the landlord) had a lien on such cotton for rents and supplies, and when the cashier received from Walker a draft on the factor for the proceeds of such cotton and used such drafts in paying Walker’s indebtedness, the bank by these acts converted to its own use the proceeds of the cotton with full knowledge of the fact that the appellee had a lien upon such cotton, or its proceeds, for rents -and supplies. The decree of the court holding the bank liable to the áppellee for such proceeds under the circumstances was correct, as disclosed by the above proof. Having knowledge of the appellee’s lien, it must be held that the conduct of the bank was tantamount to a destruction by it of such lien. (Citing numerous cases).”

The principle there announced is controlling and conclusive of this case. Here the testimony shows that Atkins, the president of the company, sold cotton upon which the plaintiffs had a landlord’s lien, and the proceeds were paid to and appropriated by the company, and it is therefore liable for the sum' thus appropriated, the amount not exceeding the rent.

The court allowed the company credit for $99, the expense of picking and marketing the cotton, and rendered judgment against the company for $383.05, the net balance of the proceeds of the sale of the’ interests of the sharecroppers, and, as this is less than the pro rata part of the rent due on the land cultivated by them, the decree is correct, and it is therefore affirmed.


text:
    Gaddy v. Pendleton.
    Opinion delivered October 11, 1926.
    Dedication — recording plat. — Filing and recording of an addition’ to a city which fails to describe the land involved, pr to locate or show the size of lots, streets, or alleys embraced therein, held not to constitute a dedication of streets, or to establish an easement in such streets for the use of purchasers of lots.
    -Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.

      Frank M. Betts, for appellant.

      Marsh Marlin, for appellee.
   Humphreys, J.

Appellee instituted this suit in the first division of the Chancery Court, of Union County, on June 27, 1923, against appellant, to cancel the plat of Triangle Subdivision of Bl Dorado which had been duly filed on March 15,1923, and recorded on June 9,1923, in the circuit clerk’s office of Union County, Arkansas. This plat covered about seventeen acres of land particularly described as all that part of the southeast one-quarter of the northwest one-quarter of section 29, township 17 south, range 15 west, lying north of El Dorado and Mount Holly public road, in said county, which appellant had bought for $2,700 in cash from M. G. Murphy, who conveyed same to her by warranty deed on September 11, 1918, which she immediately recorded in the cleric’s office aforesaid. The land described in her deed and platted by her was fenced and in cultivation when she purchased and occupied it, and had been under fence and in cultivation by her grantors since the year 1903.'

Appellee purchased block 17 in Ouachita Subdivision. to El Dorado, Arkansas, from T. A. Wroton, on August 19,1919, who purchased it from E. A. Wood on September 26, 1918, E. A. Wood having purchased it from M. G. Murphy on December 22, 1911. In an- attempt to make the description in his deed good, on June 9,1923, appellee had a plat of Ouachita Subdivision to El Dorado, Arkansas, refiled and recorded in the circuit- clerk’s office of said county, upon which there appeared a filing ¿mark of date July 21, 1909. The only things on the face of the drawing purporting to designate it. as a plat of the division of El Dorado, Arkansas, are the following words in one corner thereof: ‘ ‘ Ouachita Subdivision to El Dorado, Ark.” It contains what appears to.be lots and blocks carrying numbers adjacent to avenues and streets which are named. It joins Mount Holly Highway on the north and west side thereof, but contains nothing to indicate what particular part of the highway it adjoins. It contains no scale of measurement by which the size of the lots, or the width of the avenues, streets and alleys can be determined. There is no marking on the lots,.streets and avenues themselves to indicate their respective widths and lengths. The plat does not show on its face the lands embraced therein by government calls.

The oral testimony revealed that the purported plat had been filed in the circuit clerk’s office by J. J. Hudson on July 21, 1909. In the year 1908 the board of trade of El Dorado undertook to locate a Presbyterian.College near the city, and, pursuant to its plan, purchased, on credit, certain lands from several different parties, lying north of El Dorado and Mount Holly-Lisbon public road. The séveral deeds were executed to J. J. Hudson, trustee for the El Dorado. Board of Trade, and contained a provision- authorizing him to lay the lands off into lots and blocks and to sell same free from liens, and to apply the proceeds, .first, to the payment of the purchase money, and, second,, to the establishment of the college. The deeds were not to be recorded until the purchase money for the lands had been paid. J. J. Hudson platted the lands as Ouachita Subdivision to El Dorado, Arkansas, and sold some of the lots by like description contained in the. deed of .appellee and his predecessors in title. The plat which Hudson filed was locked up in the clerk’s vault and never recorded until appellee had same recorded on the date aforesaid. The establishment of the college failed, so November 19, 1918, the. lands were reconveyed to the grantors, M. G. Murphy and the other parties, by metes and bounds, just as they had conveyed them to the trustee. All the deeds were recorded on the date of the reconveyance. The lands which M. G. Murphy conveyed to the trustee and which the trustee, in succession, conveyed back to him, was described as follows: “Commencing 60 feet of the northwest corner of the southwest one-quarter of the northeast one-quarter of section 29, township 17 south, range 15 west, and run south 633 feet,, and thence west 120 feet, thence south 340 feet to the El Dorado and Lisbon dirt road, thence, west 31 degrees north 1180 feet,. thence north 365 feet,, thence east 1105 feet to place of beginning. ”

The surveyor and abstracter, who were witnesses in the case, testified that it was impossible to locate .the lands from, the face, of the plat itself, which were. embraced in or covered .by the plat of Ouachita Subdivision to El Dorado, Arkansas, for the reason that the plat, was not tied to any landmarks; that, although it showed that the lands embraced therein, were on the north side of, the El Dorado and Mount Holly. Highway, it did not show what particular part of. that highway they adjoined; that there were no other highways, or .public streets forming boundaries. of the plat so- .as to definitely fix the location of the lands embraced therein.

Appellee alleged in his hill that block 17 of Onachita Subdivision of El Dorado, Arkansas, owned by. him, adjoined appellant’s land, being separated therefrom by Murphy Avenue on the west and Eeid Street on the north, as shown on - the plat of Ouachita Subdivision to- El Dorado, under which plat he had purchased, and that the Triangle Subdivision to the eity of El Dorado,' as well as the fence of appellant, embraced Murphy Avenue and Eeid Street aforesaid, in which he had an easement by virtue of his purchase, in accordance with the plat of Ouachita Subdivision to El Dorado, Arkansas. In other words, the gist of his bill was that appellant had closed Murphy Avenue and Eeid Street, which had been dedicated to the use of the public by the filing of the plat of Ouachita Subdivision to El Dorado, Arkansas, by J. J. Hudson, and which was afterwards recorded by appellee.

. "We, cannot agree with appellee that the filing and subsequent recording of the plat of Ouachita Subdivision to El Dorado, Arkansas, constituted a dedication of the avenues and streets therein named to the use of the public or established an easement therein for the use of those who purchased lots according to the plat. The plat wholly failed to locate any of the lots, blocks, avenues, streets and alleys purporting to be embraced therein. The only landmark to which the plat is tied is the Mount Holly Highway, and the particular point on the highway where it is supposed to be tied is not designated. It is not bounded by other accepted streets and highways. It contains no government calls. It contains no scale for the measurement of the lots, blocks, avenues, streets and alleys. The.sizes of the lots, blocks, avenues, streets and alleys are not marked upon the plat in any way. The plat is absolutely void for indefiniteness in description of the lands purporting to be embraced therein.

“A plat is a subdivision of land into lots, streets, alleys, marked upon the earth, and represented on paper in such a way that the streets, lots and blocks can -be identified. ’ ’ 6 Words & Phrases, p. 5403, citing McDaniel v. Mace, 47 Iowa 509, 510; Burke v. McGowen, 115 Cal. 481, 47 Pac. 367.

On account of the error indicated the decree is reversed, and the cause is remanded with directions to dismiss the bill of appellee for want of equity.