text:
    Hopper v. State.
    Opinion delivered January 16, 1922.
    1. Witnesses — impeachment—corroborative evidence. — Where, to impeach a State’s witness, defendant produced a certified copy of a judgment of a Federal court, showing that the witness had been convicted of robbing a postoffiee, it was not error to permit the witness to testify that he was only 19 years old when he committed the crime, that he had been persuaded to commit it by another party, and had pleaded guilty and served 90 days in jail.

      2. Criminal law — evidence.—It was not error to permit the sheriff, in a prosecution for selling- liquor, to testify that a detective had made reports to him as to conditions at defendant’s place, and that he had procured a search warrant and found whiskey hidden there.
    3. Continuance — absent witness — diligence.—It was not error to refuse a continuance for the absence of a witness where the defendant had announced ready for trial without having asked a subpoena for such witness until after he had testified himself.
    4. Witnesses — impeachment—corroboration.—Where a State’s witness was asked on cross-examination whether he had not avoided the draft and had not been a deserter, to which he answered in the negative, it was not error to allow him to testify that he had served in the army and received an honorable discharge.
    5. Criminal law — newly discovered evidence. — Where defendant was convicted of selling whiskey largely upon the testimony of a certain witness, newly discovered evidence that such witness was at one time adjudged mentally incompetent, did not call for a reversal where there was no evidence that he was incompetent at the time of the transaction about which he testified or at the time of trial.
    Appeal from Jackson Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      Gustave Jones, G. A. Hillhouse, Murphy, McJIaney & Dunaway, for appellant.
    The evidence was insufficient. Persons of unsound mind are incompetent to testify. 29 Ark. 603; 31 Ark. 684.
    The testimony of the sheriff was hearsay testimony, and it was error to admit it. 76 Ark. 487; 109 Ark. 135; 115 Ark. 555.
    The court erred in allowing Cockrum to testify as to his own good character. 67 Ark. 112.
    Postponement of the trial should have been granted. 114 Ark. 452; 100 Ark. 301; 99 Ark. 394; 99 Ark. 547.

      J. 8. TJtley, Attorney General; Elbert Godwin and W. T. Hammovlc, Assistants, for appellee.
    The testimony was insufficient to support the verdict. It is the province of the jury to determine whether the testimony of a witness is to be believed. 19 Ark. 684. Where evidence is accepted as true by the juiy it muA be so treated by this court. 88 Ark. 200. The weight of evidence and credibility of the witness is for the jury. 121 Ark. 45; 216 S. W. 1054.
    There was no error in allowing Cockrum to explain his trial and conviction in the Federal Court. 8 Blatehf. 475; 25 Fed. Cas. No. 15,003; 86 S. W. 19; Ency. of Evi. vol. 7, p. 222-224.
    If it was error for the trial court to permit the introduction of the military record of Cockrum in evidence, it was invited error, and defendant can not complain. 80 Ark. 587; 86 Ark. 486. Defendant cannot complain of evidence brought out by himself. 104 Ark. 79.
    The postponement of the trial was properly refused. Defendant did not comply with the requirement of the statute. C. & M. Dig. § 1270.
    The competency or incompetency of a witness to testify is a question for the trial court. 113 Ark. 393.
   Hart, J.

Ed Hopper prosecutes this appeal to reverse a judgment of conviction against him for the offense of selling intoxicating liquor.

The first assignment of error is that the evidence is not legally sufficient to warrant the verdict.

Y. C. Cockrum, a detective, was the chief witness for the State. According to his testimony, he was employed by the sheriff of Jackson County, Ark., to find but and report violations of the liquor laws. The sheriff agreed to pay him $5i per day and his expenses for his services. According to his testimony, about a month before the trial, V. C. Cockrum, Ed. Hopper, and Burley Wingo engaged in pitching coins near the barn of Hopper in Newport, Jackson County, Ark., to see who would buy the drinks. Cockrum lost, and they went into Hopper’s barn, and each of them took a drink of whiskey from a bottle which was furnished by Hopper. Cock-rum paid Hopper $1 for the three drinks of whiskey. Cockrum noticed some little pieces of coal in the glass cut of which he drank the whiskey, and Hopper said that the coal got in the glass because he kept the whiskey hid in his coal pile.

This testimony, if believed by the jury, was sufficient to warrant a conviction. It is true that the defendant testified that he did not sell the whiskey on the occasion in question, and also introduced three witnesses who testified that Cockrum’s reputation for truth and morality was bad, and that, basing their opinion upon that reputation, they would not believe him on oath. This testimony, however, only created a conflict in the evidence, and did not overcome the positive testimony of Cockrum to the effect that he had purchased the whiskey from Hopper.' The reason is that the jury were the judges of the credibility of the witnesses. Cockrum’s testimony was also weakened on cross examination; but this did not have the effect to overcome it, but only went to his credibility.

The second assignment of error is that the judgment should be reversed because the court erred in permitting Cockrum to explain his conviction of a violation of the Federal Criminal Code. The defendant placed in evidence a certified copy of the judgment of a Federal court in the State of Missouri showing that V. C. Cock-rum had been convicted of robbing a postoffice in violation of the Federal Penal Code.

In rebuttal Cockrum was permitted to testify that he was only 19 years of age at the time he committed the crime; that he had been persuaded to commit it by another party, and pleaded guilty and served ninety days in jail in the State of Missouri. He did not deny his guilt, and it was proper for him to testify as to the nature of the crime for which he had been in prison and the circumstances under which it was committed. Carlson v. Winterson, (N. Y.) 42 N. S. 347, and South Covington & C. St. Ry. Co. v. Beatty, 50 S. W. 239. The reason is that it was only competent for the defendant to prove that the witness had been convicted of the crime for the purpose of affecting the credibility of the witness. In view of this, it was not error to allow an explanation of the offense by the witness.

The next assignment of error is that the court erred in allowing the sheriff to testify that Cockrnm made daily reports to him for about twenty days and made a report with reference to the conditions at Ed Hopper’s place. The sheriff did not attempt to state what Cock-rum had reported to him. The sheriff had procured a search warrant and had made a search of Hopper’s coal pile,'where he found some whiskey hidden. His.testimony, therefore, was only explanatory of the main fact. Of course, the sheriff could not have testified to what Cockrum told him, but it was competent for him to testify that he made a search of Hopper’s coal pile, because Cockrum had made a report to him, and found liquor hidden in there. It was competent for him to state that he made the search upon Cockrum’s making a report to him, but it would not have been competent for him to have stated the facts that Cockrum did report to him. Hence this assignment of error is not well taken.

The next assignment of error is that the judgment should be reversed because the court refused to postpone the case to enable the defendant to have Burley Wingo subpoenaed as a witness in his behalf. It appears that the defendant was tried at the same term of court at which he was indicted, and that Burley Wingo was at Heber Springs, Ark., on the day that the defendant was tried.

Counsel for the defendant claim that, if the trial had been postponed to procure the attendance of Burley Wingo, Wingo would have testified that he was not present on the occasion testified to by Cockrum in this case.

We do not think that the court erred in not postponing the trial on this account. The defendant announced ready for trial and knew that Cockrum was one of the witnesses indorsed on the indictment. The defendant should have asked for a subpoena for Wingo before he announced ready for trial. He knew what crime he was indicted for and who were the prosecuting witnesses. He does not himself swear that Wingo was not present on the occasion in question. He only testified that he did not sell Cockrum any liquor. It was his duty to prepare for trial, and, not having asked a subpoena for the witness until after the trial had progressed to the point that he himself had testified in thé^case, it cannot be said that he proceeded with due diligence, and it was within the sound discretion of the court to refuse him a postponement of the trial on this account.

It is also insisted that the judgment should be reversed because Cockrum was permitted to show that he had served in the army in the late war, and that an award of compensation had been given him by the Government on account of a disability resulting from injury incurred in the line of duty while employed in active service.

We do not think there was any error in this regard. On cross examination the witness was asked if he had not avoided the draft and if he had not been a deserter from the army, and he answered no to each of them. These questions were unnecessarily degrading to the witness, and it was not error to allow him to show that he had served in the army and had received an honorable discharge therefrom. Nothing of a more defamatory nature could, be asked a witness, and where such questions are asked and the record shows no foundation for them, it is within the discretion of the court to allow the witness to show that he had served his country as a soldier, instead of evading the draft or deserting from the army.

Finally it is insisted that the judgment should be reversed because the defendant has secured evidence to the effect that the witness Cockrum had been at one time adjudged an incompetent person.

This evidence does not warrant a reversal of the judgment. It does not show that the witness was mentally incompetent at the time of the trial or at the time of the transaction testified about by him. He was present before the court and the jury when he gave his testimony, and the verdict of the jury and the judgment of the court includes a finding by them that he was mentally competent at the time to testify.

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


source: Caselaw Access Project

author: Wood, J. McCulloch, C. J.,

license: Public Domain

text:
    Pharr v. Fink.
    Opinion delivered January 16, 1922.
    1. Frauds, statute op- — trusts.-—When a trust arises from an agreement between the parties or from the declarations of the beneficial owner of the property made to establish the trust, it is within the statute of frauds and must be proved by writing, in the absence of fraud or imposition.
    2. Frauds, statute op — trust—pleading.—A complaint which in effect alleges that a deed was executed to one as trustee under a verbal agreement that the grantee would clear up the title, sell the land and divide the profits with the grantors, alleges an express trust within the statute of frauds.
    3. Trusts ex maleficio — when enforced. — Whenever the legal title to property, real or personal, has been obtained through fraud or duress, or under circumstances which render it inequitable for the holder of the legal title to retain and enjoy the beneficial interest, equity imposes a constructive trust in favor of the one equitably entitled to the same as against the original wrongdoer or any subsequent holder until a purchaser in good faith acquires the title.
    4. Trust — ex maleficio — breach of oral agreement. — The mere breach of an oral agreement, standing alone, is not sufficient to establish that fraud in proving the title which is requisite to' render the grantee a trustee ex maleficio, although the fact of such breach may be looked to with other circumstances as constituting a link in a chain of facts going to prove fraud.
    5. Trust ex maleficio — fraud.—One familiar with the conditions concerning the title to lands represented to the owners, who were not familiar with such conditions, that the titles were beclouded and that he would clear up the titles, pay the taxes and sell the lands for a price satisfactory to the owners, but, after procuring a deed from the owners, he sold the lands without clearing up the title or paying the taxes, and without consulting the owners or dividing the consideration received. Held that he was a trustee ex maleficio.

    6. Fraud — bona fide purchaser. — A conveyance of lands to one “as trustee and unto his successors” is sufficient to indicate that the property is held by the grantee in trust and to impose upon a purchaser from the grantee the duty of ascertaining the nature of the trust.
    7. Laches — payment of taxes. — The fact that the beneficiaries of a trust permitted a purchaser from the trustee to pay taxes on the trust lands for less than seven- years did not constitute such laches on their part as will debar them from recovering the lands.
    S. Trusts — rights and liabilities of purchaser of trust property. — A purchaser of tnust property from the trustee in violation of the trust and with notice thereof is liable, upon the sale being set aside, for the rents and profits of the property while in his possession, but should be allowed credit or reimbursement for sums which he has paid in good faith for taxes, to remove incumbrances, or in making improvements on the property.
    Appeal from Prairie Chancery Court, Northern Distract; John M. Elliott, Chancellor;
    reversed.

      Emmett Vaughan, for appellant.
    The relation of trustee and cestui que trust existed between appellant and Dowdy. 117 N. E. 406.
    The deed having been made to a trustee and to his successors, any one who deals with the trust property, with that notice written upon the face of the deed, does so at his peril. Where the purchase money is paid by one and the title to land taken in another, a trust results by operation of law to the one who pays the money, and parol testimony is admissible to establish the nature and extent of the trust. 13 Enc. Ev. p. 137; 9 Ark. 518; 45 Ark. 146; 105 Ark. 323; 70 Ark. 145; 27 S. E. 836; 44 S. W. 467

      Where the purchaser from a trustee has full means of acquiring complete knowledge of the title, he will be deemed to have constructive notice thereof. 3 How. (U. S.) 333; 95 U. S. 576; 15 Wall. 165; 17 How. 232; 2 Wall. 70.
    The statute of frauds does not apply to resulting trusts in land where money is furnished by one and title taken in another. 102 A. 817; 35 So. 262; 70 Ark. 145.
    Dowdy could sell only the legal title, and the deed to him was notice on its face that another held the equitable title. The recording of the deed by Pink was only constructive notice of the breach of trust by Dowdy. Actual notice of the breach must be brought to the cestui que trust, especially in the case of nonresidents. 96 N. W. 349; 64 Kan. 689; 25 Cyc. 1173. When the relation of trustee and cestui, que trust is once established, no subsequent dealing with the trust property by the trustee can alter the relation or relieve the property of its trust character. 23 W. Va. 475; 27 S. E. 836; 44 S. W. 470 ; 200 S. W. 1029.
    Where the trust, though a resulting one, is cognizable solely in equity, the time for bringing suit will not begin to run until the trust has been repudiated. 1 Cyc. 1066. Appellee has held neither the actual nor constructive possession for the statutory period. 23 Ark. 362.
    Persons coming into possession of trust property, with notice of trust, shall be considered trustees. 1 Pet. 229; 102 TJ. S. 545; 15 Wall. 165; 104 U. S. 54; 10 How. 174; 39 Cyc. 548; 8 Wheat. 421; 129 U. S. 305; 101 U. S. 320; 30 Ark. 249.
    The cestm que trust has a right to follow the property into whose hands he may find it, unless such purchaser is a bona fide purchaser for a valuable consideration,' without notice. 146 U. S. 363 ; 9 Wall. 365; 19 How. 289; 8 Wall. 202-215.
    The defense of laches is not available to appellee, for to urge that is but attack the source of his own title. Nor is the statute of frauds available.

      W. A. Leach, for appellee.
    The -mere execution of a deed by one party to another for an expressed consideration, which (was' not paid, does not give rise to a resulting trust. 114 Ark. 128; 50 Ark. 76; 57 Ark. 632. A resulting trust must arise by operation of law, while express trusts arise by act or agreement of the parties. Express trusts are within the statute of frauds, and must be proved by writing-in the absence of fraud or imposition. 103 Ark. 145; 101 Ark. 460; 100 Ark. 261; 70 Ark. 145; 67 Ark. 526; C. & M. Digest, § 4868. No fraud was shown by Dowdy in the procurement of the deed, and no confidential relations existing, a trust ecc maleficio did not arise. 26 E. C. L. 1197, sec. 32; 26 E. C. L. 1239, sec. i85; 72 Ark. 313. The transaction amounted to an express trust, and therefore within the statute of frauds, and must be proved by some instrument in writing. Parol evidence cannot supply the omission. 17 Cyc. 748; 28 S. W. (Mo.) 171; 16 Ark. 340; 56 Ark. 139; 47 Ark. 17. A contract required by the statute of frauds to be in writing cannot be partly written and partly oral. 39 Cyc. 53; Pomeroy’s Equity § 1009; 26 E. C. L. 34; 53 L, E. A. 753; 34 Am. St. Eep. 358; 167 S. W. (Mo.) 447; 9 Am. Dee. 236; Perry on Trusts, §§ 79 and 80.
    The use of the word “trustee” is not sufficient to establish express trust in lands, and will not permit the introduction of parol evidence. 40 Am. St. 299; 66 N. E. 494; 115 Gfa. 874; 92 Ga. 260; 13 S. D. 453; 35 N. E. (111.) 216.
    The filing of the deed for record, by appellee, was constructive notice of the repudiation by the trustee of his trust, and failure thereafter for ten years to assert his rights would bar the appellant from recovery. ■ 26 E. C. L. § 152 p. 1299.
    Appellee should be reimbursed for taxes and improvements. 39 Cyc. 643; 84 Ark. 160.
   Wood, J.

This action was instituted by the appellant against the appellee to cancel the deed executed by one P. P. Dowdy to the appellee. The facts are substantially as follows:

The appellant inherited the lands described in the deed from his father, Henry Pharr. Dowdy was an abstracter of titles and, finding that the Pharr heirs owned the lands but that the title was clouded by some delinquent tax sales which he considered voidable, he induced the Pharr heirs to execute to him a quitclaim deed to the lands. The understanding between the parties at the time of the execution of the deed was that Dowdy would clear up the title to the lands, and in the event of a sale of the same would divide the profits with the Pharr heirs. The deed expressed that “for and in consideration of the sum of $1 in hand paid by P. P. Dowdy, trustee,” the heirs of Pharr “quit-claimed and conveyed unto the said P. P. Dowdy, trustee, all our right, title and interest in the lands, describing them.” The habendum clause in the deed is as follows: “To have and to hold the same unto the said P. P. Dowdy, trustee, and unto his successors and assigns the said lands, together with all and singular the improvements thereunto belonging.” It was understood at the time of the execution of the deed that, should an opportunity arise to sell, the appellant was to be consulted, 'and he and Dowdy were to agree upon the terms before the sale was consummated. Dowdy was to pay all expenses and all taxes, and, after these were deducted from the purchase price of the land sold, the balance was to be divided equally between Dowdy and appellant.

On the 11th day of August, 1908, Dowdy sold the lands in controversy to the appellee for the sum of $25. Dowdy did not clear up the tax titles, but on the contrary failed to pay taxes on the lands after they were deeded to him, and the same were sold to R. P. Smith and W. R. Hanks, who paid the taxes for a number of years. The appellee himself was an abstracter of titles, and found that Dowdy had no title to the land which he thought was a better title than Banks’ tax title. He had had some business transactions with Banks that were not satisfactory, and he concluded he would buy Dowdy’s title, which would give him a better title than Banks had. He. therefore bought the land from Dowdy for the sum of $25. He knew at the time of his purchase from Dowdy of the deed from Pharr to Dowdy. At the time of the purchase he believed that he was getting the only title to the land that was any good. The appellee took possession of the land in 1916 and made valuable improvements thereon, which he itemized, and which amounted in the aggregate to the sum of $664; and paid the taxes on the land for fourteen years.

The appellee, in his answer, after denying that appellant had title to the lands, pleaded the statute of frauds and also the statute of limitations and laches. Upon- the issues thus raised and the facts as above developed the court rendered a decree dismissing the appellant’s complaint for want of equity, from which is this appeal.

1. Under our statutes trusts concerning lands that are created by contract or agreement between the parties are express trusts, which can only be proved by some writing signed by the party who is or shall be by law enabled to declare such trust. Sec. 4867, C. &. M. Digest. Trusts concerning lands which are not created by contract or agreement between the parties, but which arise or result by operation of law when the lands, are conveyed, are implied trusts which may be established by parol evidence. Sec. 4868, C. & M. Digest. In Spradling v. Spradling, 101 Ark. 451-460, we said: “When a trust arises from an agreement between the parties or from the declarations of the beneficial owner of -the property made to establish a trust, it is within the statute of frauds and must be proved by writing, in the absence of fraud or imposition.” In addition to the cases there cited see U. S. Fidelity & Guaranty Co. v. Smith, 103 Ark. 145-149; Hunter v. Field, 114 Ark. 128.

Now, the complaint alleged that “one P. P. Dowdy, a real estate and abstract man, entered into a verbal contract with him (Harry N. Pharr) and his mother and brothers under the terms of which it became the duty of the said Dowdy to clear up the back titles which he represented were void tax titles, and which could be cleared at small expense, and, this being done, to place said lands upon the market and to secure purchasers therefor, and to report to J. Scott Pharr and this plaintiff, who, it was mutually agreed, should conduct the business negotiations relative to the selling of said lands on the part of the Pharr heirs, for the purpose of fixing the prices on said lands and any other matters that might become necessary in disposing thereof. That it was further mutually agreed that after said titles were cleared up the said Dowdy was to.pay all taxes.” It may be said that the uncontroverted proof in this record, if competent, establishes the above allegations of the complaint. But the above allegations and proof show that the trust concerning the lands in controversy was an express and not an implied trust. The trust was one arising out of an express agreement between the parties, and not by implication or operation of law. Such being the ease, in the absence of fraud on the part of Dowdy in procuring the deed from the Pharr heirs, the express trust concerning these lands could only be established by some writing in which the terms and purposes of the trust are expressed with such certainty that courts could enforce it.

Does the testimony show such fraud on the part of Dowdy in procuring the deed as would justify a court of equity in this action in declaring that the transaction created a trust ex maleficio¶ The undisputed facts with reference to this are that Dowdy was an abstracter of title to land in White County, and that he entered into a verbal contract with the appellant whereby Dowdy was to examine the title to the lands of the Plenry Pharr estate and pay any expense incident thereto, and in conjunction with the appellant would sell the lands and divide the proceeds after deducting the expenses incurred by Dowdy. The deed was executed to Dowdy, trustee, and to his successors and assigns. Dowdy did not clear up the titles, and in 1908 sold the land in controversy to the appellee for the sum of $25 without consulting the appellant.

In Ammonette v. Black, 73 Ark. 310, Judge Riddick, speaking for the court, quoted from Prof. Pomeroy aS follows: “‘A second well-settled and even common form of trusts ex maleficio,’ says Prof. Pomeroy, ‘occurs whenever a person acquires the legal title to Lands by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, a promise to con vey the land to a designated individual, or to reconvey it to the grantor, and the like — and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in 'fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.’ There must, of course, in such cases be an element of positive fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply’.”

And in Bragg v. Hartney, 92 Ark. 58, we quoted the following from Prof. Pomeroy: “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to tbe same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wher ever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer.”

In 26 R. C. L. p. 1239, § 85, it is said: “The mere breach of an oral agreement, standing alone, though often a moral wrong, is not sufficient to establish that fraud in procuring the title which is requisite to render the grantee a trustee ex maleficio, although the fact of such breach may, of course, be looked to, in connection with the other circumstances of the case, as sometimes constituting one of several links in a chain of facts going to prove fraud. If this were not so, the statute of frauds would practically be repealed, because no case can arise in the courts under it except where siich a breach is charged, other than cases of fraud, either positive or constructive.” See also Spradling v. Spradling, 101 Ark. 451.

Applying the above principles of law to the facts, we are convinced that Dowdy should be declared a trustee ex maleficio. He was an abstracter of titles and familiar with the status of the lands which the appellant and the other heirs had inherited from their father, Henry N. Pharr. Henry N. Pharr had not lived in Prairie County since the civil war, and the appellant did not live there and was not familiar with this particular tract of land. Dowdy sought the appellant and, after representing that the lands were beclouded with tax titles which would have to be removed before the lands could be marketed and by promising that he would remove these titles and keep the taxes paid on the lands, induced the appellant to execute to him a quitclaim deed for the consideration of $1. He proceeded thereafter to sell the land at the mere nominal consideration of $25 and to appropriate the proceeds of the sale without appellant’s knowledge or consent. Here it will be observed that there was a positive inducement held out by one who, by virtue of his avocation, was familiar with the conditions concerning the title, to one who .was not familiar with those conditions, and.that false verbal promises were made to hold the land for certain specified purposes, such as removing clouds from the title, paying the taxes, making sales, etc., all of which required active management and control over the property.

These facts clearly distinguish this case from those cases where the grantee merely verbally promises to hold the land for another or to hold and convey the land upon the direction of the vendor. The facts tended to prove that it was the purpose of Dowdy to circumvent the appellant and thereby procure title to the lands in controversy. The facts of this case clearly differentiate it from the cases of LaCotts v. LaCotts, 109 Ark. 335, and Ursery v. Ursery, 113 Ark. 36, where there was nothing more than breach of a mere parol promise. Here the avocation of Dowdy and his knowledge acquired thereby with reference to the lands enabled him, by an intentionally false and fraudulent promise that he would hold title and to do certain other things in connection therewith, to procure the title to valuable lands upon a mere nominal consideration. This, as we view it, was a positive fraud in the procurement of the title. See Ammonette v. Black, supra; McDonald v. Tyner, 84 Ark. 189; see also Barron v. Stuart, 136 Ark. 481-495.

If courts of equity are powerless to uproot transactions of this kind because of the statute of frauds, then indeed would that statute be converted into a means of perpetrating a fraud and shielding the guilty-one in the possession of his ill-gotten property. The purpose of the statute was to prevent, and not to promote, frauds. “I have always-understood,”, said the vice chancellor in Padmore v. Gunning, 5 Sim. 485, “that the court would interfere to prevent the obtaining of an estate by fraud, notwithstanding the statute of frauds.” See also the many cases cited in note l.to § 1054, Pomeroy’s Equity Jurisprudence.

2. The appellee had notice of the trust. The appellee testified that he knew nothing of the Pharr title. He further stated that he “knew of the deed from Pharr to Dowdy at the time.” The Pharr title was in the claim of his title and the source thereof, and he had to take notice of it. The habendum clause in the deed from Pharr to Dowdy contained this significant phrase: “To have and to hold the same-unto the said P. P. Dowdy, trustee, and unto his successors and assigns # # * ” The words, “trustee, and unto his successors” were sufficient to put any reasonably prudent person upon inquiry, which pursued would have discovered the trust.

In Railroad Co. v. Durant, 95 U. S. 576, 579, and -cases there cited, it is held that “the designation (trustee) alone was sufficient to devolve the duty of inquiry upon any other person dealing with the property.” But, even if the word “trustee,” standing alone would not have that effect, this word, taken in connection with the words “and unto his successors,” would clearly indicate that the property was held in trust, and at least devolve upon the appellee the duty of investigation to ascertain the true relation between Dowdy and the Pharr heirs. See Graflin v. Robb, 35 Atl. 971. The appellee, therefore, is not an' innocent purchaser of the property. On the contrary, he at most only acquired such interest in it as Dowdy had, which was the mere naked legal title subject to the equitable estate of the Pharr heirs.

In Banks v. Seaton, 1 Peters 229, it is held, quoting syllabus: “It is well settled in equity, that all persons coming into possession of trust property, with notice of the trust, shall be considered as trustees; and bound, with respect to that special property, to the execution of the trust.” Ins. Co. v. Eldridge, 102 U. S. 545; Duncan v. Jaudon, 15 Wallace 165; National Bank v. Ins. Co., 104 U. S. 54; Hallett v. Collins, 10 Howard 174; U. Pa. Ry. Co. v. McAlpin, 129 U. S. 305; Wormley v. Wormley, 8 Wheaton 421; 39 Cyc. 548; Pindall v. Trevor, 30 Ark. 249.

In the case of Bragg v. Hartney, supra, it is held, quoting syllabus: “Wherever the legal title to property, real or personal, has been obtained through fraud or duress, or under circumstances which render it inequitable for the holder of the legal title to retain and enjoy the beneficial. interest, equity impresses a constructive trust in favor of the one equitably entitled to .the same as against the original wrongdoer or any subsequeht holder until a purchaser in good faith acquires title.” See also Pindall v. Trevor, supra.

3. It follows that the appellant is entitled to the relief he prays unless he is barred by laches from maintaining this suit. The burden upon this issue was upon the appellee. The facts on this issue are substantially as follows: The deed of Pharr to Dowdy was executed in 1899, and the deed to Dowdy to the appellee was executed and recorded in 1908. This action was instituted in 1918. The appellant himself testified that he paid no taxes on the lands, and had made no effort to do so since he had deeded the same to Dowdy. The appellant was a non-resident of Prairie County. He had never made any trips to look after the lands; had made no effort to see whether Dowdy was paying the taxes except to write to him once or twice. He intended from time to time to come up there and investigate it and see why he hadn’t heard from Dowdy and what he had done about the matter, but didn’t do so. The appellee 'began paying the taxes on the lands in the year 1908. He paid for that year and every year thereafter until the year 1913. The taxes for that year were paid by W. J. Miller. The appellee also paid the taxes for the years 1914, ’15, ’16, ’17.

The sale of the lands by Dowdy and his appropriation of the proceeds without the knowledge or consent of the appellant was a repudiation of the trust. But the appellant had no actual knowledge of such repudiation. It is unnecessary to decide in this case whether the recording of the deed by the appellee was constructive notice to the appellant of the repudiation of the trust; for, conceding that it was such notice and that it put the appellant upon inquiry, he would have found upon investigation that the appellee had not, by any affirmative act, at that time exercised any ownership or control over the property.

The appellee did not thereafter exercise any affiirmative act of ownership of the property except the payment of taxes as above indicated. As we have seen, the payment of these taxes was not continuous for a period of seven years, the longest continuous period being five years, and a period of nine years in all that appellee paid the taxes. The appellee did not take pedal possession of the property and begin to make improvements thereon until 1916, and in about two years thereafter the appellant instituted this action.

The appellee relies upon the decision of this court in Turner v. Burke, 81 Ark. 352, to sustain his contention that appellant is barred by laches. But in that case the real owner of the land had not paid the taxes for thirtyeig’ht years. In the meantime there had been overdue tax decrees and a judgment in a suit in which the lands had been attached. The lands had been sold under the overdue tax decrees and the judgment in the attachment suit. These and other features wholly distinguish that case on the facts from the case at bar.

Under the facts of this record our conclusion is that the real owner of the lands should not be barred by laches from maintaining his action against the appellee. The appellant brought his suit within a reasonable time after the appellee took possession of the property, and he brought it before there had been such a continuous payment of taxes by others as to indicate an abandonment by the appellant of the lands. It cannot be regarded inequitable as against the appellee under the circumstances of this case to grant the appellant the relief for which he prays.

4. This brings us to the issue as to the betterments and taxes. The appellee, in his amended complaint, set up a claim for. betterments which he itemized, amounting in the aggregate to $664, and for taxes, the amount of which is not specified. The appellant in'his reply denied specifically the items claimed and set up that the appellee, during the time he had been in possession, had sold timber off the lands for which he had received the sum of $1,000, and denied that he had paid any taxes. The law on this subject is correctly stated in 39 Cyc. 643, as follows: “A purchaser of trust property from the trustee, in violation of the trust, and with notice of the trust, should be decreed to hold the property affected with the trust, and the purchaser may be decreed to reconvey to the cestui que trust on payment of the purchase money. Such a purchaser is liable, upon the sale being set aside, for the rents and profits of the property while in his possession; but should be allowed credit or reimbursement for sums which he has paid in good faith for taxes, to remove incumbrances, or in making permanent improvements on the property * * # .” See also Stubbs v. Pitts, 84 Ark. 160.

The testimony on the issue of betterments, taxes, rents, etc., as abstracted, is not satisfactory. For instance, the testimony does not show the amount of the taxes paid, and the appellee states that he had kept no account of the expenses and had no receipts; and there is no testimony abstracted showing the amount of timber cut and removed from the land by the appellee, if any. There is no testimony as to the rental value of the lands. The court, therefore, is unable to render a satisfactory decree on the issue as to betterments, taxes, rents, etc. The parties, if so advised, may further develop the cause on that issue.

The decree is therefore reversed and the cause is remanded, with directions for further proceedings according to law and not inconsistent with this opinion.

McCulloch, C. J.,

(dissenting:). I am unable to discover in this case any of the elements of a trust ex maleficio. There is nothing shown on the part of the alleged trustee- except the breach of his promise to carry out the alleged trust, and this court has decided in all of the cases, beginning with Ammonette v. Black, 73 Ark. 310, that this is not sufficient to create an enforceable trust. Bragg v. Hartney, 92 Ark. 55; Spradling v. Spradling, 101 Ark. 451; LaCotts v. LaCotts, 109 Ark. 335; Ussery v. Ussery, 113 Ark. 36; Worthen v. Vogler, 145 Ark. 161; Roberts v. Pratt, 147 Ark. 575.

The controlling rule was stated by Judge Riddick in the opinion of this court in Ammonette v. Black, supra, as follows:

“There must of course, in such cases, be an element of fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply.”

That rule has not heretofore been departed from, but it seems to me that the majority have disregarded it in the present case, for there is no proof of any fraud practiced by Dowdy in securing the conveyance from appellant — nothing except his subsequent failure to -carry out the alleged trust.

It seems to me that appellant was barred by his own laches. He conveyed the land to Dowdy in the year 1899, and made no further inquiry nor showed any further concern about it until shortly before the present action was instituted. He had never paid, the taxes on the land for a single year. Dowdy conveyed the land to appellee in the year 1908, and thereafter died. Appellee placed his deed upon record and paid the taxes each year thereafter with the exception of one year, when it was- paid by a stranger to both parties in this litigation. Appellant could have ascertained with slight diligence that Dowdy had conveyed the land to appellee without accounting to him as trustee. He could have known, year by year, by a simple inquiry, that appellee was paying taxes on the land and did so for nine years, with the exception of one year. In the meantime, Dowdy died, the only other witness to the transaction between him and appellant, and the land increased considerably in value.

The cases are numerous in which we have decided that the failure of a party who is mi juris to pay taxes on his wild and uncultivated land for a longer period than seven years if there has been an enhancement in values in the meantime, constitutes a bar by laches from equitable relief. In fact, the doctrine is so thoroughly settled that it is hardly worth while to undertake to enumerate the eases in which the question has been raised and decided. The case of Turner v. Burke, 81 Ark. 352, which is cited by the opinion of the majority, is only the beginning of the doctrine in this court. We have never decided before that the omission by the party claiming the benefit to pay taxes for a single year will defeat the application of the doctrine, for its application is based on the failure and omission of the owner to bear the burden of tax payments.

It is not essential that the defendant in a case, where equitable relief is sought, should himself have paid continuously for a period of seven years before the failure of the plaintiff to pay for that length of time is treated in equity as an abandonment and the doctrine of laches is applied against him so as to deny relief. Under the rule now stated by the court, nothing short of a complete bar by the statute of limitation could call for the application of the doctrine of laches. That view of the matter abolishes the doctrine altogether, for if the defendant can successfully plead the statute of limitations and must do so in order to maintain his defense, then there .is no occasion to invoke the doctrine of laches.

We held in Earl Improvement Co. v. Chatfield, 81 Ark. 296, and have since followed it, that enchancement in value and failure to pay taxes for a number of years short of the statutory period of limitation would not constitute a bar by laches. But it is quite a different thing to say, as the court is doing in the present case, that, regardless of the length of time the plaintiff has abandoned the land and failed to pay taxes, the defendant against whom equitable relief is sought cannot invoke the doctrine of laches unless he has paid for the full statutory period of limitation himself. No such distinction as that is found in any of our cases.

In the case of Craig v. Hedges, 90 Ark. 430, in stating the doctrine established by the decisions theretofore rendered, we said:

“The fact is established that appellant and his grantors, who originally owned the lands, completely abandoned them and asserted no title thereto nor paid any taxes thereon for a period of more than ten years before the complaint was filed in 1898. ■ In the meantime, the lands became greatly enhanced in value — some of the witnesses say as much as fourfold. This conduct on the part of appellant’s grantors constituted such laches as barred their right to assert title in a court of equity and to ask a court of equity for relief.”

There is no intimation in this statement of the doctrine that the failure of the other party to pay for the full period of seven years continuously would prevent him from claiming the benefit of the plea of laches.

I dissent therefore from the conclusion of the majority and am clearly of the opinion that the appellant should be denied relief on both grounds stated therein.


author: Hart, J.

text:
    Basin Park Hotel Association v. Arkansas Company.
    Opinion delivered January 16, 1922.
    1. Landlord and tenant — eviction.—Where leased premises were sold under a paramount title, and the holder of the paramount title, purchasing thereunder, notified the lessee that it would not recognize the lease unless the lessee waived certain rights thereunder, this amounted to an eviction.
    2. Landlord and tenant — -eviction—recovery of repairs. — Where a tenant is unlawfully evicted under a paramount title, he may recover of the landlord money expended by him in repair of the building and fixtures which would have enabled him to occupy it more profitably, even though the repairs were of no value to the landlord.
    Appeal from Carroll Circuit Court, Western District; W.,A. Dickson, Judge;
    reversed.
    STATEMENT OP PACTS.
    The Arkansas Company, a corporation, brought this action in the circuit court against the Basin Park Hotel Association, operating under a declaration of trust, and the members thereof, to recover the sum of $483.95 alleged to be due for hotel supplies furnished by the plaintiff ■ to the defendants.
    The suit is based upon a lease by the plaintiff to the defendants of a hotel in the city of Eureka Springs, Ark., and the alleged voluntary surrender of the leased property by the defendants during the term of the lease.
    The defense of the defendants to the suit was that they had been evicted by a mortgagee under a mortgage given prior to the execution of the lease contract. The defendants by way of counter-claim asked judgment for damages against the plaintiff on account of said eviction.
    The lease in question was in writing, and was executed in duplicate on the 6th day of March, 1919. By its terms the Arkansas Company leased to the Basin Park Hotel Association a hotel in the city of Eureka Springs, Ark., together with all the fixtures, furnishings and furniture therein. The lessees agreed to pay as rent $300 cash for the month of May, 1919, and $300 per month rent in advance to April 1, 1920. The contract also containing the following:
    “The right and option is hereby given to the party of the second part to lease said hotel and contents under the same terms and provisions of this lease for a period of two years more from April 1, 1920, at the rental of $350 per month, to be paid in advance; it being understood that if the lessees desire to take advantage of this option to operate and lease said hotel for the two-year period given them April 1, 1920, that they shall, forty days before the first of April, 1920, give written notice to the party of the first part of their desire and intention to take advantage of this option for two years more.
    “The party of the first part hereby agrees, as a part of the consideration for this lease, that it will supply a sufficient amount of dishes and linens with which to operate said hotel; and that it will also, upon the request of the party of the second part, at once furnish a range for the kitchen.
    “Before the 1st day of May, 1919, an inventory shall be taken by the parties hereto, of all the furniture, queensware, linens, etc., of said hotel, a copy of which inventory shall be kept by each party hereto; and added to said inventory shall be such supplies as the party of the first part supplies under the terms of this lease, and, at the expiration of this lease, the party of the second part is to return to the party of the first part the property shown upon said inventory, wear and tear excepted.
    “It is understood that the party of the second part is to pay all water bills due the city for water furnished to the hotel, as well as electric lights and any other bills that may be a lien upon the hotel property by reason of the operation of said hotel by party of the second part; the party of the first part to keep said property insured and to pay the taxes on same.

      “The party of the first part is to at once begin work and have the office and dining room of said hotel painted, and is from time to time to paint the halls, rooms or walls of the building as may be needed.”
    Possession was given to the Basin Park Hotel Association of the hotel and its contents. On June 28, 1915, the Arkansas Company executed a mortgage to the First National Bank of Paris, Texas, on the hotel and its contents. The mortgage was given to secure a' note, for $31,000 of the same date, payable to the bank on Jan. 1, 1920, and signed by the Arkansas Company. It was expressly agreed between the parties that the failure to pay any installment of interest due on the note should at the option of the holder make the note and entire indebtedness due. The Arkansas Company made default in the payment of the mortgage indebtedness according to the' tenor thereof, and the bank brought suit against it in the Federal court to obtain judgment on the note and a foreclosure of the mortgage. The Basin Park Hotel Association and its members were also made defendants to the action.
    On Oct. 14,1919, judgment was rendered in favor of said bank against said Arkansas Company for the amount of the mortgage indebtedness and a foreclosure of the mortgage was also decreed. The decree also contained the following:
    “That the purchaser at such sale shall take said premises free from any claim by the Basin Park Hotel Association or any lease of said premises or property, and shall have the option to consider any such lessee as tenant of said purchaser and collect rent therefrom, or to disaffirm such lease or leases and take immediate possession of such premises or property so purchased.”
    Pursuant to the decree on the 25th day of October, 1919, the commissioner appointed by the court advertised the property for sale on the 29th day of November, 1919, according to the directions contained in the decree. The notice of sale contained the following provisions:

      “Purchaser at such sale will take said premises free from any claim by the Basin Park Hotel Association, or any lease of said premises or property; and will have the option to consider any such lessee as tenant of such purchaser, and collect rent therefrom, or to disaffirm such lease or leases, and take immediate possession of such premises or property so purchased upon confirmation of sale and execution of deed.”
    On the 29th day of November, 1919, the property was duly sold by the commissioners, and was bid in by the mortgagee. On the 5th day of January, 1920, the sale was duly confirmed by the court.
    Jas. A. Smith, cashier of the First National Bank of Paris, Texas, was a witness for the plaintiff. According to his testimony, he was in charge of the foreclosure proceedings which were brought in the Federal court at Harrison, Ark., and the bank became the purchaser at the foreclosure sale, but never served any notice on the Basin Park Hotel Association to vacate the hotel. The bank refused to recognize or accept the lease held by the Basin Park Hotel Association. The mortgagor agreed to convey the mortgaged property to them in satisfaction of the mortgaged indebtedness, but they refused to accept this because the manager of the Basin Park Hotel Association claimed that under the lease he had a right to extend certain amounts in repairing the hotel, and the bank was not willing to accept the lease unless the rents were paid to it without any deductions whatever. The bank did not issue any orders for the lessees to vacate the premises, but it refused to accept the lease held by the Basin Park Hotel Association. The bank decided when it became necessary to foreclose the mortgage on the hotel to have it cleared of the lease at the same time, and the lessees were made defendants to the foreclosure proceedings.
    F. 0. Butt was the attorney for the bank in the foreclosure proceedings. According to his testimony, he had a conversation with. Mr. Manning, the manager of the Basin Park Hotel Association, about the lease. Manning claimed that under the terms of the lease they were entitled to certain allowances for repairs and expenditures made by them. The bank was willing to extend the lease if the lessees would waive their claim for improvements and expenditures and pay the rent to the bank. Otherwise, the bank would not recognize the lease, but told Manning personally that if the bank became the purchaser at the foreclosure sale it was not ready to take the premises over and asked Manning if he would hold on for a week or ten days.
    According to the testimony of W. M. Duncan, president of the Arkansas Company, the company did not owe anything to the lessees for improvements and expenditures made by them, and the lessees were indebted to the lessor for the amounts claimed in the complaint.
    H. Gr. Manning, the manager of the hotel, was a witness for the defendants. According to his testimony, the defendants took possession of the hotel under the lease on the 20th day of March, 1919, -and gave up possession of it on the 17th day of December, 1919. He gave an itemized statement of the amounts expended by the-lessees under the terms of the lease, and these items aggregated the sum of $708.78. Manning talked with Duncan about allowing these items on several occasions, and at first Duncan did not deny that they were proper charges, but wanted to postpone the payment. The lessees paid the rent in accordance with the terms of the lease. The mortgagee refused to allow the lessees to continue in possession of the hotel unless they would yield their claim for expenditures made under the lease against the lessor and would agree to pay it the rent.
    The jury returned a verdict for the plaintiff in the sum of $247 and for the defendants on their counterclaim in the sum of $300. Whereupon the court rendered judgment in favor of the defendants on their counterclaim in the sum of $53.

      The defendants have duly prosecuted an appeal to this court.

      J. N. 8aye and W. G. Riddick, for appellant.
    Appellant was evicted by paramount title. Such being the case, it could .claim the eviction without waiting to be actually evicted by judicial proceeding. 16 R. C. L., Landlord and Tenant, §458; 24 Cyc. 1059; 20 N. E. 198; 173 N. W. 563; 46 N. Y. 370-372; 9 N. J. Law, 139. There was no breach of the terms of lease by failure to pay the rent, nor could there have been such breach without the written notice provided for therein. On the contrary, the lessor, having failed to give the notice, will be deemed to have waived the right to revoke the contract. 16 R. C. L., Landlord and Tenant, § § 647-650. If the appellants were evicted by paramount title, they were entitled to recover the resultant damages, and the jury should have been so instructed. To refuse such instructions and give instead instruction numbered 11, was manifest error. The court likewise erred in modifying instruction 7, requested by appellant on the measure of damages. 102 Ark. 108; 132 Id. 599; 76 Id. 468; 163 S. W. 147.

      Charles D. James, for appellee.
    A general verdict is good on two issues, where the finding necessarily shows that the subject-matter of both issues was determined. 1 Ark. 471; Id. 346; 15 Id. 405; 6 Id. 178; 10 Id. 479.
    The mere fact that the First National Bank obtained the decree of foreclosure in its proceedings against the appellee, and that the sale was confirmed, did not constitute an eviction by paramount title. Constructive eviction cannot be deemed to exist without a surrender of the premises to the landlord. 24 Cyc. 1059. The. mere foreclosure decree, sale and confirmation thereof, of the leased premises does hot constitute a breach of the covenant for quiet enjoyment. The tenant’s possession must be actually disturbed. 84 N. Y. Supp. 740; 91 Id. 348; 35 111. App. 144. The evidence shows a voluntary abandonment, without a surrender of the premises to appellee. 56 N. W. 777; 90 N. Y. 293; 43 Am. Rep. 293; 77 N. Y. Supp. 91; 37 A. S. R. 174; 47 N. E. 203. Mere existence of a paramount title affords no reason for abandonment of .the property without a surrender thereof to the landlord. 54 Ala. 459; 1 Ind. 193; 27 N. H. 529; 54 Am. Rep. (Tenn.) 398; 3 Gratt. (Ya.) 91.
    A tenant in possession under one title can make no valid attornment to a stranger thereto, even though the latter may be the owner of the land or have other paramount title. 57 N. E. 187; 44 Cal. 508; 27 Ark. 50; 28 Id. 153; 48 111. 160; 21 Id. 165; 49 S. E. 1023.
    The instruction number 11 asked by appellee and given by the court, was right. There is no proof that the bank ever disaffirmed the lease. On the contrary, the evidence shows that it was ready and willing to affirm the lease. 99 Ark. 196, 197; 51 Id. 46; 95 Id. 131; 114 Id. 532. It was also right in modifying instruction 7 requested by appellant. 163 S. W. 147.
   Hart, J.

(after stating the facts.) Counsel for the defendants asked the icourt to instruct the jury that under the .evidence in the case the defendants were evicted from the demised premises by paramount title, but the court refused to give the instructions, and gave instead instruction No. 11, which is ns follows:

“I charge you that, although you may find from the evidence that the mortgages held by the first National Bank of Paris, Texas, and the First National Bank of Eureka Springs, on the Basin Park Hotel property, were duly foreclosed by decree of the Federal court at Harrison, and that the purchaser at the foreclosure sale took said property free of the lease of the defendants, yet, if you further find that the terms of said mortgages and said decree provided that the purchaser at said sale had the option to consider the defendants as his tenants and affirm said lease in all of its provisions and collect rent from them or disaffirm said lease and take immediate possession of said- hotel premises, then, before there would be an eviction in this case, the defendants must show by a preponderance of the evidence that the purchaser at said sale elected to disaffirm said lease or declined to affirm the- terms of the lease as it was originally executed between plaintiffs and defendants.”

The court erred in giving instruction No. 11. The undisputed evidence shows that the lessees were evicted by paramount title and were entitled to recover the damages resulting therefrom. The bank had a valid mortgage on the land which was executed prior to the lease. Upon default being made in the payment of the mortgage according to its terms, the mortgagee brought suit to foreclose its mortgage, and the lessees were made defendants to the action together with the mortgagor. There was a judgment in favor of the mortgagee for the mortgage indebtedness and a decree of foreclosure. The mortgagee became the purchaser of the property at the foreclosure sale. Prior to the sale it had notified the lessees that it would not recognize the lease unless the lessees would waive their claim for expenditures made under the terms of the lease and agree to pay the bank rent for the future. The decree of foreclosure fixed the rights of the parties. It specifically provided that the purchaser at the foreclosure sale should take the premises free from any claim by the lessees or any lease on the property. The mortgagee was given the option to dis-affirm the lease and take immediate possession of the property so purchased.

It disaffirmed the lease by notifying the lessees that it would not recognize the lease unless the lessees waived their claim for expenditures against the lessor under the lease and paid the bank the rent in the future. This was equivalent to an eviction under paramount title. It was a hostile assertion of the paramount title by the bank, and the lessees had a right to leave the premises without waiting for a writ of assistance and actual physical ouster. The lessees ’ rights were fixed by the terms of the lease, and they were not required to waive their rights thereunder. Morrison v. Weinstein, 151 Ark. 255.

It would have been a vain and useless thing for the lessees to have waited for the process of the court to put them off the premises when the mortgagee had a valid decree of foreclosure in which it was recited that the purchaser at the sale should take the premises free of the lease. It is true that the mortgagee had the option to continue the lease and offered to allow the lessees to re-remain there a few days after the sale. The mortgagee, however, refused to allow the lessees to remain during the term of the lease unless they waived their claim against the lessor for damages and paid it the rent. Under the decree the mortgagee had a right to expel the lessees from the premises, and its action was equivalent to a threat to do so. The threat to turn out the tenant unless he promised to pay the rent to the mortgagee and waive his claim for damages amounted to a complete ouster or eviction. Smith v. Shepard, 15 Pick. 147, 25 Am. Dec. 432.

It follows that the court erred in giving instruction No. 11.

It is next insisted that the court erred in modifying instruction No. 7 asked by the defendants, which is as follows:

“If you believe from the evidence in this case that the defendants were evicted from the demised premises by paramount title, then the court tells you that the defendants are entitled to recover on their counterclaim the difference between the rent agreed upon and the rental value of the premises for the unexpired portion of the term, as shown by the evidence; also for the value of the option to renew the lease, as shown by the evidence; also the amount expended by defendants, if any, for repairs and improvements which could be used onlv moon the premises, regardless of whether such repairs or improvements were authorized by the plaintiff, or were of any value to plaintiff, also whatever amount the evidence shows the defendants spent for dishes, linens, supplies, repairs or improvements authorized by plaintiff.”

The court modified the instruction by striking out the item of damages based upon the defendants’ expenditures for repairs and improvements which could only be used upon the premises. Under the evidence adduced for the defendants, they have expended several hundred dollars in painting the hotel and in making several other necessary repairs upon it.

In Byers v. Moore, 110 Ark. 504, the court held that where a tenant is unlawfully evicted by the landlord before the expiration of the lease, he may recover the money expended by him in the repair of the building and fixtures, which would have enabled him to occupy it more profitably; and this would be true, even though the repairs were not of value to the landlord. See also Reeves v. Romines, 132 Ark. 599, and Morrison v. Weinstein, 151 Ark. 255.

It follows that the court erred in modifying instruction No. 7 requested by the defendants.

For .the errors indicated in the opinion the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Murray v. State.
    Opinion delivered January 16, 1922.
    1. Continuance — absence of witnesses — discretion of court.— In a criminal prosecution, it was not an abuse of discretion to refuse a continuance to secure the attendance of witnesses where the court was justified in concluding that they were evading service of process, and that there was no certainty of their attendance being secured at a future date.
    3. Seduction- — evidence of prior unchastity. — An instruction that, though the defendant may have had intercourse with the prosecutrix prior to the promise of marriage, yet, if such intercourse was had by force and against her consent, he could not avail himself of such acts &i intercourse as establishing her unchastity, held proper.
    4. Witnesses — leading questions. — It was not an abuse of discretion to permit the State to ask the prosecutrix in a seduction cases a leading question where she was young and ignorant.
    5. Witnesses — impeachment—prior contradictory statements.— In a prosecution for seduction where defendant called a witness whom he expected to testify that he had had sexual intercourse with the prosecutrix, but he denied having had such intercourse, but admitted having stated elsewhere that he had done so, it was not admissible to! prove other contradictory statements previously made by such witness.
    Appeal from Howard Circuit Court; Percy Steel, special judge;
    affirmed.

      Abe Collins and Epperson & Jachson for appellant.
    Tbe court abused its discretion in denying tbe motion for continuance. 130 Ark. 245; 85 Id. 334; 99 Id. 394; 100 Id. 132; 67 Id. 290.
    Tbe evidence does not support tbe verdict. A conditional promise of marriage is not sufficient upon wbicb to predicate tbe charge of seduction. 130 Ark. 520. Tbe prosecutrix fixes no time, nor states the nature of any promise of marriage except tbe first. If she did not consent, the act according to her testimony was rape; if she did 'consent as tbe defendant claims, then it was before tbe promise of marriage. She was not of previous chaste character, if tbe intercourse occurred with her consent before tbe promise of marriage. 30 L. R. A. (N. S.) 173 and note.
    The prosecuting witness in a prosecution for seduction cannot properly be asked if she would have consented to tbe intercourse in the absence of a promise of marriage. 23 L. R. A. 391, note.
    It was erroneous to limit tbe testimony contradicting the testimony of Lee Sbofner as tending to impeach his testimonv and as affirmative evidence touching chastity or unchastity of the prosecuting witness. C. & M. Digest, § 3137; 114 Ark. 542; 118 Id. 460; 137 Id.
      197; 53 N. Y. 230; 32 Ind. 478; 15 Q. B. 878; Thompson’s Enc. of Evidence, vol. 2, p. 530-531 and foot-notes.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The court was, under the showing made, justified in overruling the motion for continuance. Copper-smith v. State, 149 Ark. 597; 74 Ark. 450, 451. Moreover, it is not probable that the absent witnesses, if present, would have testified as alleged in the motion, and thereby subject themselves to prosecution for a felony. 5 Standard Enc. of Procedure, 463; 25 Fed. Cas. 38; 78 Ark. 262; Morris v. State, 150 Ark. 1.
    2. The evidence sustains the verdict. Defendant’s own admission sufficiently corroborates the prosecuting witness as to the fact of sexual intercourse and there was sufficient corroboration of her testimony as to the promise of marriage, by the testimony of her cousin, and of her half-sister and her mother. C. & M. Dig., § 2414; 77 Ark. 16; Id. 468; 86 Id. 30; 126 Id. 189; 130 Id. 149; 137 Id. 92; 92 Id. 421.
    3. The trial court’s discretion with reference to permitting the leading questions will not be disturbed unless there has been a manifest abuse. 8 Enc. of Evidence, 161.
    4. The testimony of witness Shofner, even if a surprise to appellant’s counsel, was not prejudicial to appellant. Under the circumstances, evidence of variant statements by this witness was not admissible for any purpose, and particularly not as affirmative evidence of unchastity on the part of-the prosecutrix. 80 Ky. 507; 7 Encv. of Ev. 31; 123 Calif. 374, 55 Pac. 1059; 124 Ind. 101, 24 N. E. 577; 93 Ind. 128.
   Smith, J.

Appellant was charged with and convicted of having seduced Pearl Henderson, and has appealed.

The first error assigned for the reversal of the judgment is that the court erred in refusing to grant a continuance of the cause until the following term of the court on account of the absence of six men, named in the motion for a continuance, all of whom were residents of Howard County, where the trial • was pending, and whose attendance appellant had been unable to procure, although subpoenas had been duly issued for them. The indictment was returned August 25, -1921, and appellant was placed on trial September 3, 1921.

It was recited in the motion for continuance that Artie Powell, one of the absent witnesses,- if present, would testify that he had frequently had sexual intercourse with Miss Henderson during the period of two years preceding the indictment, and that, after Miss Henderson became pregnant with the child she now claims appellant is the father of, she wrote a letter to Powell in which she threatened to prosecute Powell for seduction if he did not marry her. It was further alleged that the other five men named in the motion had had sexual intercourse with Miss Henderson within the two years immediately preceding the alleged seduction, and would so testify if present, but the sheriff had been unable to serve the subpoenas on any of the men named in the motion because of their temporary absence from the county.

The motion did not disclose the present whereabouts of these witnesses, and no showing was made, except the opinion of the appellant, expressed in the motion, that they would return, and that service of subpoena could be had before the next term of the court.

We think no' abuse of discretion was shown in refusing the continuance until the next term of the court. As was said in the recent case of Coppersmith v. State, 149 Ark. 597, the fact that the six witnesses had suddenly departed from their usual haunts, and could not be located, justified the court in concluding that the witnesses were evading service of process, and that there was no certainty of procuring their attendance at a future date, especially in view of the fact that, if they had given the testimony stated in the motion, the witnesses would thereby have admitted their guilt of the crime of carnal abuse, as Miss Henderson was only seventeen years old at the time of the trial.

The chief insistence for the reversal of the judgment is that the evidence is not sufficient to sustain the verdict. The appellant admits having had sexual intercourse with Miss Henderson, and at least two witnesses fully corroborated her as to the promise of marriage; but appellant denies having made this promise and insists that the testimony of Miss Henderson, herself, shows that the intercourse was not obtained by virtue of a promise of marriage.

Miss Henderson testified that the first act of intercourse was had forcibly and against her will, and only after appellant had threatened to beat her over the head with a pine knot and have intercourse with her whether she consented or not. This act of intercourse was had in an automobile by the side of a country road. Miss Henderson testified that she cried and declared her purpose, on their way home, of telling what appellant had done, and that he .then promised her, if she would not tell, that he would marry her.

If this were the only act of intercourse shown to have occurred, we would be compelled to say, as a matter of law, that the crime committed may have been rape, but was not seduction, as Miss Henderson did not yield because of the promise of marriage, but on account of the threats made and the force employed. She further testified, however, that she decided it would be better to be married than to tell what had happened; that appellant continued to visit her, frequently renewed his promise of marriage, and because of these promises she yielded to him on more than one occasion thereafter.

The court charged the jury, over the objection of appellant, that, although appellant may have had intercourse with Miss Henderson prior to the promise of marriage, yet, if the intercourse was procured by force or intimidation, and against her consent, she did not thereby surrender her chastity; and that if the appellant later had intercourse with Miss Henderson by virtue of a false express promise of marriage, appellant would be guilty of seduction. The court further charged the jury that unchastity of a woman is the voluntary submission of her person to a man, and that if, prior to the alleged promise of marriage, if there was one, appellant had, by means of threats or violence, obtained carnal knowledge of Miss Henderson, he could not avail himself of such acts of intercourse in establishing the unchastity of Miss Henderson.

Under the testimony in the case these instructions presented the real issues to the jury, and they correctly declared the law. 24 R. C. L. p. 768, title, Seduction, sec. 46; Rex v. Moore, 19 A. & E. Ann. Cases 442, note at page 447.

Over appellant’s objection, Miss Henderson was permitted to answer the question: “State whether or not you would have permitted him to have intercourse with you had it not been for that promise?” which question was objected to us leading, and it is now further objected that the question was speculative and permitted the witness to say whether she yielded up her virtue as a sole result of the prior false express promise of marriage, when this was solely a question for the jury.

The question was open to the objection made to it that it was leading; but the witness was young and had been subjected to a long and searching cross-examination, a reading of which indicates that she was probably both timid and ignorant; and on ruling on the objection the court said: “It is a little leading, but it does seem you can’t get the information without a little leading.” Under the circumstances we do not feel that the action of the court in permitting the question to be asked was such an abuse of the court’s discretion as to require the reversal of the judgment.

Lee Shofner was called as a witness for appellant, and was asked if he had had sexual intercourse with Miss Henderson; and he denied that he had had. He was then asked if he had not told appellant, appellant’s father and his attorney that he had had carnal knowledge of Miss Henderson on several occasions; and he answered that he had made those statements, but that he was “talking then and swearing now.” Counsel for appellant asked to be allowed to introduce witnesses to prove statements made to them by Shofner in regard to having had sexual intercourse with Miss Henderson; and the court offered to permit this to be done for the purpose only of contradicting the witness, and not as affirmative testimony.

The only error commitecl in this ruling was in offering to permit proof of prior contradictory statements made by Shofner. He admitted having made the statements; and the impeaching witnesses could have shown nothing more. Shofner gave no affirmative testimony against appellant; he merely failed to give favorable testimony; and section 4186, C. & M. Digest, cited and relied upon by appellant to sustain his contention, that this testimony was admissible, does not apply. This section was construed in the case of Doran v. State, 141 Ark. 442, where we quoted with approval the construction given it by the Court of Appeals of Kentucky, from which State we adopted it. We there said: “The above” (section 3137 Kirby’s Digest, brought forward into Crawford & Moses’ Digest as section 4186) “is one of the provisions of our civil code taken verbatim from the civil code of practice of Kentucky. In Champ v. Commonwealth, 2 Metc. (Ky.) 17-24, the Court of Appeals of Kentucky construing this provision said: ‘The obvious meaning of the rule is, that where a witness states a fact prejudicial to the party calling him, the latter may be allowed to show that such fact does not exist, by proving that the witness had made statements to others inconsistent with his present testimony. But a case like the present, where the witness does not state any fact prejudicial to the party calling him, but only fails to prove facts supposed to be beneficial to tbe party, is not within the reason or policy of the rule, and the witness cannot be contradicted in such case by evidence that he had previously stated the same facts to others. Such a practice would be a perversion and abuse of a rule which was intended to protect a litigant against the fraud or treachery of a witness whom he may have been induced to confide in, and would lead to consequences more injurious than the evils the rule was intended to remedy’.”

Other assignments of error relate to the action of the court in giving and refusing instructions; but the questions raised have all been settled adversely to appellant’s contention in former decisions of this court, and we do not repeat here these previous discussions on the questions raised.

Judgment afirmed.


text:
    Harper v. State.
    Opinion delivered January 16, 1922.
    1. Indictment and information — election between counts. — In a prosecution for murder under an indictment charging in one count that defendant killed decedent and in another that defendant was an accessory before the fact, it was not error to refuse to require the State to elect on which count the case would be submitted.
    2. Continuance — absent witness. — In a prosecution for murder, it wás not an abuse of discretion to refuse to grant a continuance on account of the absence of a witness who would testify that she was with defendant at the home of a third person, several miles away, for several hours, before and after the killing, where no showing was made of any effort to procure her attendance or deposition, or that her attendance could be obtained at a later date, nor any showing why proof of such alibi could not be made by some member of the family which defendant was visiting.
    3. Homicide — evidence of general reputation — invited error.— In a prosecution for murder, where defendant’s counsel asked witnesses, on cross-examination, what defendant’s reputation as a law-abiding peaceable man was, to which they replied that they had never heard anything against him, defendant cannot complain of the admission of their subsequent testimony that they had heard that he had been accused of stealing hogs, as the error was invited.
    4. Criminal law — corroboration op accomplice. — Evidence in a murder case held to corroborate the testimony of an accomplice.
    Appeal from Jackson Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      Fred M. Pickens and Smith & Gibson, for appellant.
    The court erred in refusing a continuance. 109 Ark. 407; 120 Ark. 173. The refusal to grant a continuance is subject to review on appeal. 99 Ark. 334.
    The demurrer should have been sustained. There was a misjoinder of offenses. C. & M. Digest, § 3015; 109 Ark. 389; 109 Ark. 498; 37 Ark. 274; 41 Ark. 173.
    The court erred in permitting the witness Ivey to testify as to the reputation of the defendant.
    The testimony of Paul Curtis was not sufficiently corroborated. C. & M. Digest, § 3181; 120 Ark. 148.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock. Assistants, for appellee.
    There was no abuse of discretion in overruling the motion for continuance. 71 Ark. 62; 103 Ark. 509; 125 Ark. 269; 136 Ark. 84.
    The demurrer was properly overruled. 59 Ark. 423. It is permissible to charge one as principal and as accessory before the fact in the same indictment. 42 Ark. 105; 1 Met. (Ky.) 13; 2 Bishop Cr. Pr. sec. 7.
    The testimony of J. M. Ivey as to the general reputation of defendant was properly admitted. 83 Ark. 119.
    The testimony of Paul Curtis was sufficiently corroborated by that of the wife of the deceased and by Arch Quarles, jane Block, Ann Block, and S. R. Allen. 133 Ark. 599.
   Smith, J.

Appellant was convicted of murder in the first degree and sentenced to imprisonment for life, and has appealed.

The indictment on which he was tried contained two counts, in the first of which he was charged with having killed one Jesse Ford by shooting the said Ford with a gun, and in the second count he was charged as an accessory before the fact to the killing of Ford by one Paul Curtis.

The court refused to require the State to ■ elect on which of the two counts the case would be submitted to the jury, and this action is assigned as error. The case of Gill v. State, 59 Ark. 423, decides this point adversely to appellant’s contention.

Error is assigned in the refusal of the court to grant a continuance until the following term of the court on account of the absence of one Mattie Cole. The motion for a continuance alleged that Mattie Cole was then in the State of Kansas, but that her attendance could be procured at the next term of court, and that if she were present she would testify that she and appellant were at the home of Claud Hager, some four or five miles from the scene of the killing, and that she and appellant were at Hager’s house for several hours before and after the killing. The showing is made that only seven days elapsed between the return of the indictment and the trial. No showing was made of any effort to procure the attendance of the witness, and there was no request to take her deposition. She was without the jurisdiction of the court and not subject to its process, and there was no showing, except the opinion of appellant, as expressed in the motion for continuance, that her presence in court at a later date could be obtained. There was no showing that Mattie Cole was a member of the family of Claud Hager, or that she resided in that home, and there was no showing why this proof could not be'made by Claud Hager and the members of his family. As a matter of fact, appellant offered no testimony in his own behalf except testimony tending to show his good reputation. We think no abuse of discretion was committed in overruling the motion for a continuance. " , i

Error is assigned in the admission of certain testimony touching appellant’s reputation. Appellant put his general reputation in issue when his counsel asked J. M. Ivey (who was the sheriff of Jackson County, where the killing occurred, at the time of its occurrence), on his cross-examination, what appellant’s general reputation as a law-abiding, peaceable man was. The witness answered, “I never heard anything against him.” The court then permitted the witness to testify, over appellant’s objection, that since the killing of Ford he had heard that appellant had had trouble with his neighbors on account of charges of stealing hogs.

John Fleetwood was called as a witness for appellant, and testified that appellant’s reputation was good as far as he had heard, and he then testified, over appellant’s objection, that since the trial he had heard that appellant had been accused of hog stealing.

No error was committed in admitting this testimony. Appellant put his reputation as a law-abiding citizen, as well as that for peace and quietude, in issue; and if the evidence was broader than it should have been, the error was invited. It is true Ivey and Fleetwood had not heard anything derogatory to appellant’s reputation until after the killing of Ford, but they did thereafter hear such comment, and this comment related to appellant’s general reputation prior to the killing of Ford.

It is finally insisted that the judgment should be reversed because the conviction rested upon the testimony of Paul Curtis, shown to be an accomplice, without corroboration. Ford was assassinated on Saturday night, September 4, 1920, while sitting at his table eating supper, between seven and eight o’clock. It was a dark, cloudy night. The assassin stood in the dark and fired through a screen door, and powder burns were found on the screen.

Acording to the testimony of Curtis, he was appellant’s confidant, and was told by him about twelve o’clock the day of the killing that he intended to kill Ford that night. He told Curtis that he had already poisoned Ford’s house-dog, and he explained to Curtis the details of his plan to kill Ford while Ford was eating supper. Curtis left home at once for Newport, and was in that city on the night of the killing. On his return the following day appellant said to him, “The man I spoke to you about is dead.” That appellant had a pistol of either .38 or .41 caliber, with which he said he had killed Ford, and that lie wore his old gum boots at the time of the killing. Curtis admitted that he himself had an old pair of gum boots; but it was not claimed that he did the killing or was present when it was done.

It was shown that Ford and appellant had had several angry quarrels growing out of a charge made by Ford that appellant was stealing hogs. Appellant had threatened to kill Ford, and they had ceased speaking to each other. Mrs. Ford, the widow of deceased, testified that her watch-dog was poisoned a few days before her husband was killed. A number of witnesses saw appellant and his wife driving in a northerly direction beyond Ford’s home, and about “good dark” appellant was seen driving south in the direction of Ford’s home.

Ivey, who was the sheriff at the time of the killing, testified that he went to the scene of the killing the next day after it occurred, and that he saw the tracks of the assassin, which he followed for a considerable distance, and that the man who made the tracks had on large gum boots or overshoes considerably worn. That he picked the bullet, fired by the assassin out of the door facing, and weighed and compared it, and that its caliber was either .38 or .41.

We think the testimony set out furnished corroboration of the testimony of Curtis legally sufficient to sustain the conviction.

No error appearing, the judgment is affirmed.