author: Johnson, C. J.

text:
    Sutherland v. Sutherland.
    4-3337
    Opinion delivered February 26, 1934.

      Charles E. Lewis, E. B. Dillon and S. S. Jefferies, for appellant.

      Sam M. Wassell and Isaac Riff, for appellee.
   Johnson, C. J.

The parties to this unfortunate divorce suit were intermarried at Cleveland, Ohio, in 1913', and there resided as husband and wife until 1929. For the sole and only purpose of ridding himself of his marriage vows, so solemnly assumed in 1913, appellee came to this State in May, 1932, and established himself in a Little Rock hotel and thereafter on November 7, 1932, filed this suit in the Pulaski Chancery Court alleging as grounds for divorce:

First, willful desertion, beginning in 1929; secondly, indignities, which rendered his condition in life intolerable.

Appellant filed an answer denying the allegations of appellee’s complaint, and also filed a cross-complaint seeking alimony. On June 23,1933, the cause was determined and appellee was granted an absolute divorce from appellant, and this appeal is prosecuted to reverse this decree.

The decree of divorce in favor of appellee is not warranted under any view of the testimony.

It is the. established doctrine in this State that a divorce decree will not be granted upon the uncorroborated testimony of one of the parties. Darrow v. Darrow, 122 Ark. 346, 183 S. W. 746; Johnson v. Johnson, 122 Ark. 276, 182 S. W. 896; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Rie v. Rie, 34 Ark. 37.

On the question of willful desertion but little need be said. The parties flatly contradicted each other as to desertion, and neither is corroborated by other testimony. Appellee insists, however, that the witness Hood corroborates his testimony as follows: “It was also evident that plaintiff was unable to persuade her to again take up residence with him, etc.”

Just what evidence this witness referred to is not related by him, and we are unwilling to accept his conclusions as evidence. The law is definitely settled in this State that witnesses should be required to detail facts about which they testify, and the conclusions deducible therefrom are drawn by the courts. This witness testified to no fact corroborating the testimony of appellee as to willful desertion.

The remaining contention is that the divorce decree is supported 'by sufficient testimony on the ground of indignities. As on the ground for desertion, we find that every charge and accusation made by appellee against appellant is flatly contradicted and denied by appellant in her testimony. Certainly, it can not be contended under these circumstances that either party is entitled to a divorce. The alleged corroboration of appellee’s testimony on this ground is predicated solely upon two or three occasions occurring at widely separated intervals. For instance, the first occurrence detailed by the witness Ford occurred in 1925, and is of no importance. Whatever petulance was shown by appellant on this occasion was thrust at Ford and his company and not at appellee. This testimony, instead of showing reproach, contempt or ridicule of or towards appellee, demonstrates appellant’s overpowering interest in her husband’s welfare.

The incident referred to in 1929 hy the witnesses is likewise without merit. On this occasion one witness testified that appellant said to appellee: “I never enjoy anything when I am with yon.” This testimony falls far short of that required under the repeated decisions of this court to establish indignities.

In the early case of Rose v. Rose, 9 Ark. 507, this court stated the rule as follows: “Personal indignities, such as rudeness, unmerited reproach, contempt, studied neglect, open insult, etc., and other plain manifestations of settled hate, alienation, and estrangement must be habitual, continuous, and permanent to create that intolerable condition contemplated by the statute.”

The doctrine as announced in Rose v. Rose, has been consistently followed by this court since its pronouncement. Preas v. Preas, ante p. 854.

It should be distinctly kept in mind that marriage vows are solemnly assumed and should be sacredly kept. The interest of society demands that the bonds of wedlock should not be severed, except upon grounds prescribed by statute and established by testimony. One, two, or three trivial instances of petulance are entirely insufficient to establish indignities as defined by our statute.

The most charitable view‘of the testimony presented in this record in behalf of appellee is to say, that both parties were somewhat in fault, and that both, by failure to exercise that mutual forgiveness, which the relationship demanded, aggravated, rather than tended to ameliorate, their conjugal state. Had the parties to this unfortunate marriage heeded the admonitions of this court:

“A little confessed, a little endured,
A little forgiven, and all is cured.”

As announced in Arnold v. Arnold, supra, this now unhappy couple would be enjoying the associations usually consequent to the marriage status.

A monthly allowance of $50 per month will be continued until reconciliation of the parties or until the circumstances and conditions of the parties warrant a change, and this should he determined by some court of competent jurisdiction.

The decree of the Pulaski Chancery Court awarding appellee a divorce will be reversed, and the cause of action dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Dodd v. Gower.

      4-3445

    Opinion delivered February 26, 1934.

      J. Paul Ward and Ben B. Williamson, for appellant.

      W. O. Edmondson and Coleman & Reeder, for appellee.
   Johnson, C. J.

This is the second appearance of this case-here. The first will be found in 187 Ark. 717, 62 S. W. (2d) 1, and reference is here made thereto for a better understanding of the issues here presented.

The law of the case, as announced in the former opinion, is controlling on this appeal. Childs v. Motor Wheel Corporation, 164 Ark. 149, 261 S. W. 28,

On the threshold of this ease we are met with the contention that the appeal should be dismissed for noncompliance with rule 9. This contention is bottomed upon the theory that the material parts of the pleadings, proceedings, facts and documents presented on the former appeal have not been properly abstracted.

A part of rule 16 provides:

“When a cause has once been ¡before this court and a transcript is again called for, to have error which occurred after its return corrected, the second transcript shall begin where the former ended; that is, with* the judgment of this court, which should be entered of record in the circuit court, omitting the opinion of the appellate court — the appeal or supersedeas bond to be the last paper copied.”

The abstract presented and filed in this cause substantially complies with rule 16; therefore appellee’s motion to dismiss must be denied.

On the former appeal of this case, it was determined, first, “that the certificate of the election commissioners was made up from the tally sheets of the various townships in Stone County and that the tally sheets in four of the townships had been tampered with between the time they had been delivered to the election commissioners and before the time the count and certification was made.”

From this hypothesis it was therefore said: “The prima facie effect of the certificate was overcome by the uncontradicted testimony that it was based upon the tally sheets, the integrity of which had been destroyed. ’ ’

Secondly, it was furthermore determined on the former appeal, “that the integrity of the ballots in the four townships (Turkey Creek, Richards, Franklin and Washington) had been destroyed. ’ ’ Therefore, from this hypothesis it was determined: “The trial court should have proceeded to ascertain from secondary evidence the number of votes each received from the four townships in question.”

On remand, the testimony taken on the previous trial was again introduced ¡by appellant together with some other testimony which is not deemed of sufficient importanee to here discuss. Appellee introduced no additional testimony. Upon the record thus made, the trial court found that the prima facie showing of the election certificate executed by the election commissioners had not been overcome by the testimony, and pronounced judgment accordingly. Obviously, this was error. The testimony introduced on last trial was identical with that introduced on the former trial, and this court expressly held that the prima facie effect of the election commissioner’s certificates was overcome thereby.

The effect of the trial court’s holding was in the teeth of the. former opinion of this court. This practice, of course, can not be sanctioned or approved. Whether this court’s former holding was right or wrong, logical or illogical, is beside the question. The former opinion is the law of the case, the evidence being the same, regardless of the individual views of members of this court or the individual views of trial courts. This is true by force of constitutional mandate. Article 7, Arkansas Constitution of 1874.

The secondary testimony referred to in the former opinion, which was uncontradicted then and is uncontradicted now, is to the following effect:

“The election certificate executed by the election commissioners of Stone County on November 15, 1932, shows that appellee was given credit for 741 votes and appellant was given credit for 664 votes. In the tabulation of townships this certificate further shows that in Washington township appellant was given credit for 16 votes and appellee. 18 votes; in Turkey Creek township appellant was given credit for 23 votes and appellee 29 votes; in Richards township appellant was given credit for 31 votes and appellee 26 votes; in Franklin township appellant was given credit for 35 votes and appellee 31 votes.

The uncontradicted testimony of the election judges and clerks, who held the election, together with the duplicate tally sheets and certificates retained by them, show that in Washington township appellant actually received 23 votes and appellee 12 votes; in Turkey Creek township appellant actually received 29 votes and appellee 13 votes; in Richards township appellant actually received 41 votes and appellee 13 votes; in Franklin township appellant actually received 48 votes and appellee 12 votes.

Thus it is a very simple mathematical problem to determine that the official count gave to appellee, in the four townships referred to, 104 votes and to appellant 105 votes. On the other hand, the uncontradicted secondary testimony shows, that appellant actually received, in said four townships, 141 votes’ instead of 105, as credited to him by the election commissioners, and that appellee received only 50 votes in the four townships instead of 104 votes, as credited to him. by the election commissioners.

Also it is another very simple mathematical problem to determine that appellant actually received 700 votes for tax assessor at the November, 1932, election instead of 664, as credited to him by the election commissioners, and that appellee actually received only 687 votes instead of 741, credited to him by the election commissioners. From this status of the record, it inevitably follows that appellant was elected tax assessor for Stone County for the term beginning January 1,1933'.

On the former appeal this case was reversed and remanded for the sole and only purpose of giving appellee an opportunity of introducing testimony to overcome the secondary testimony theretofore introduced by appellant, but this invitation was declined and ignored by appellee, therefore no useful purpose would be served by again reversing the case for a new trial. From this state of the record, it becomes our duty to declare the result and enter judgment here accordingly. Pritchett v. Road Improvement Dist. No. 4, 167 Ark. 555, 268 S. W. 1119.

For the reasons aforesaid, judgment will be here entered declaring appellant duly elected tax assessor for Stone County for the term beginning January 1, 1933, and a mandate issue effecting this result.


author: Smith, J.

text:
    E. L. Bruce Company v. Corbett.
    4-3340
    Opinion delivered February 26, 1934.

      Buzbee, Harrison, Buzbee & Wright, for appellant.

      W. F. Denman, Malcolm T. Garner, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Smith, J.

This appeal is prosecuted to reverse a. judgment for $2,000 which appellee recovered to compensate a personal injury sustained while employed by appellant, a corporation. Testimony tending to support the right to recover was to the following effect: Appellee was employed as a ripsaw operator in the dimension mill of appellant, and had been operating a ripsaw only two weeks, although he had worked for appellant in various capacities about its mill since 1914, off and on. The dimension mill is equipped with different machines for sawing lumber, each being constructed and equipped for use in sawing lumber in a different manner. One of these machines is called a band ripsaw, and is designed for use in ripping boards or planks in two, and, when so ripped, the board or plank is fed or run into the ripsaw machine sideways.

As a safety device, the ripsaw machine was equipped with two rollers in front of, and also one behind, the saw. These rollers were used to feed and guide the board or plank to and from the saw. The rollers in front of the saw caused the piece of lumber being sawed to be fed to the saw evenly and at regular intervals, while the roller behind the ripsaw was used to carry the lumber away from the saw.

Appellant also operates a flooring mill in connection with its saw and planing mill. In the flooring mill, located on the floor above the dimension mill, is a machine called a re-saw machine, which is used for resawing lumber. Lumber is run into the re-saw machine edgeways when re-sawed. The re-saw machine is equipped with rollers in front of, and also behind, the saw, and served ¿he same purpose as the rollers with which the ripsaw was equipped. These rollers in front of the re-saw are geared up with cogs on each end of the rollers, which serve to pull the lumber being sawed into the saw. It is customary for the re-saw machine to be equipped with the rollers in front of the saw to feed and guide the lumber being re-sawed to the saw. The band ripsaw machine operated by appellee at the time of his injury was not designed for nor intended to be used in re-sawing lumber.

During the morning of the day appellee was injured the foreman of the dimension mill directed appellee to remove the rollers used as safety devices from in front of and also from behind the ripsaw machine, and appellee was ordered to replace the rollers removed from the ripsaw machine with an improvised wooden attachment, which was attached to the ripsaw machine in order to convert it and use it as a re-saw machine. This attachment was not equipped with rollers in front of the saw, nor did it feed the lumber to the saw evenly and at regular intervals. It was therefore necessary for the operator, when the improvised wooden attachment was placed on the machine, to use his hands, arms and the weight of his body in guiding and pushing the lumber to the saw.

The foreman gave appellee specific instructions as to the manner of removing the rollers from the ripsaw, and also as to replacing them with the improvised wooden attachment. After the attachment had been placed on the ripsaw as directed appellee was ordered by his foreman to re-saw an order of table drawer stock, which consisted of glued boards 8 inches wide, 14 inches long, and about 15/16ths of an inch thick.

Due to constant use, the floor around thetbase of the ripsaw machine was slippery. A cleat had been nailed to the floor so that when the operator was required to feed or push the material to the saw he could brace his feet. Appellee began to re-saw the table drawer stock, and braced his feet against the cleat. He pushed two pieces of drawer stock through the saw. While in this position, and pushing a third piece to the saw, the material was pulled into the saw with unexpected rapidity. Appellee had to hold the board down as he was guiding and feeding it to the saw, because the weave of the saw would cause the board to buck up. When the saw pulled the piece rapidly into the machine, appellee became unbalanced and fell, striking his chest against the bed of the machine. As a result of this fall, appellee’s first rib on the right side was fractured and torn loose from the breast bone, and a malignant tumor formed at the place of injury. Drs. McGill and Hoge gave expert testimony to the effect that the injury was the probable cause of appellee’s present condition.

In appellee’s brief, the facts are summarized as above stated, and the evidence is legally sufficient to support a finding that appellee was injured in the manner stated, and the principal question involved on this appeal is whether these facts support a finding that the injury was the result of appellant’s negligent failure to furnish and provide a safe place for appellee to work, and a safe and suitable machine for use in re-sawing the lumber. The questions of contributory negligence and of assumption of risk appear to have been submitted to the jury under correct declarations of law.

The ease of Kemp v. Hunter Transfer Co., 184 Ark. 13, 41 S. W. (2d) 981, is cited and relied upon for the reversal of the judgment, together Avith other similar cases which have declared the law to be that: “It is not sufficient to show that the plaintiff was injured, and that the injury resulted from a defect in the machinery, but he must go further and establish the fact that the injury happened because the master did not exercise proper care in the premises.” Cases are also cited which declare that: “Where a servant knows the methods that are adopted by the master, the place furnished in which to work and the appliances with which it is done, and continues in the employment Avithout complaint, he assumes the risks which may result from such known methods and appliances.”

We accord full recognition to these well-established statements of the law of master and servant, but we are nevertheless of the opinion that a case was made for submission to the jury on the question of appellant’s negligence. It may be true that the mere use of a ripsaw machine to do the work for which a re-saw machine Avas designed Avas not negligence, and it may also be true that appellee assumed the risk of any increased danger resulting from the use of one machine to do the work for which another was intended where he was apprised of the substitution and appreciated the increased danger, if any, but the testimony tends, in addition, to show an unfit and unsuitable device had been substituted for the rollers which rendered appellee’s place even more dangerous, and also that it was not customary to do re-saw work Avith a ripsaw, although the latter was in proper condition.

We conclude therefore that it was a question for the jury whether the master had used ordinary care to furnish the servant a reasonably safe place in which to work, and that the questions 'of contributory negligence and of assumption of risk were likeAvise questions of fact for the jury.

The controlling principles in the instant case are similar to those announced in the case of Kelly Handle Co. v. Shanks, 146 Ark. 208, 225 S. W. 302, which arose out of facts very similar to those of the instant case. We conclude therefore that no error was committed in refusing to direct a verdict in appellant’s favor.

The giving of instruction numbered 1 at the request of appellee is assigned as error. But this is not true if the testimony is sufficient to support a finding of liability, as the effect of the instruction is to tell the jury that, if the facts were found to be as contended by appellee, the master was negligent.

The refusal to give instruction numbered 7 requested by appellee is also assigned as error. This instruction as copied in appellant’s brief reads- as follows: “You are further instructed that, if you find from the evidence that the plaintiff had pushed two boards through the saw with safety, but while pushing the third board through the saw it went through with great and unexpected rapidity, without fault on the part of the defendant, and while thus engaged with the board the plaintiff, in order to avoid an injury, threw his body suddenly on to the bed or frame of the saw and was thereby injured, then your verdict will be for the defendant.”

The transcript shows, however, that the instruction does not read as above quoted, “without fault on the part of the defendant,” but, in fact, reads, “without fault on the part of the plaintiff,” which reading changes, of course, the entire meaning of the instruction. It may have been intended to declare the law to be that there was no liability for the injury if it occurred “without fault on the part of the defendant,” but the instruction as copied in the transcript apparently tells the jury that, regardless of appellant’s negligence, there would be no liability if appellee had pushed two boards through the saw with safety, which is not the law.

It was earnestly insisted at the trial below that appellee’s present serious condition was not caused by the injury hereinabove described, but Drs. McGill and Hoge, who testified as experts in the case, gave testimony which supports the finding that appellee’s present condition is the probable result of the injury. Dr. McGill did not treat appellee professionally, and only examined him for the purpose of testifying as to the extent and cause of his present condition, whereas Dr. Hoge did treat appellee for his ailment, and during his cross-examination this question was propounded to him: “I want to ask you directly of what that course of treatment consisted?” Upon objection being made to the question, counsel for appellant said: “Your honor, this witness is testifying as to the condition at the present time. We have a right to know if in his course of treatment he has done anything to aggravate the so-called condition.” In overruling the objection to the question the court said: “The court: Gentlemen, you have got a right to ask the witness any question which tends to show the plaintiff has any improvement from his condition, damage he might have sustained, or he has got a right to ask the witness any question the answer to which will show his condition has been aggravated by the treatment, or becajise of lack of. treatment. ’ ’

We think this ruling permitted as much latitude as appellant was entitled to have. In addition, it may be said that no lack of care was shown by appellee in the selection of the physician who treated him, and, this being true, the damages may not be diminished by showing that more skillful treatment would have produced better results. This subject was considered in the case of Lane v. Southern Railway Co., 192 N. C. 287, 134 S. E. 855, 51 A. L. R. 1114, where it was held by the Supreme Court of North Carolina (to quote a headnote) : “That treatment of a personal injury is not beneficial does not, if the injured person used due care to have proper treatment, affect the damages which he would otherwise be entitled to recover from the wrongdoer.” See also annotator’s note to the case of O’Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A. L. R. 1268, and also the annotation to the case of Purchase v. Seelye, 231 Mass. 434, 121 N. E. 413, 8 A. L. R. 506, and other annotated cases cited in the note to § 19 of the chapter on Damages, 8 R. C. L. 449, and our own case, of Butler v. Arkansas Power & Light Co., 186 Ark. 611, 54 S. W. (2d) 984.

Upon the whole case we find no error in the record, and the judgment must be affirmed. It is so ordered.


text:
    Helena v. Russwurm.
    Crim. 3875.
    Opinion delivered February 26, 1934.

      Polk & Orr, for appellant.

      Jo. M. Walker, for appellee.
   Smith, J.

Ordinance No. 1858 of the city of Helena imposed a tax on various occupations. Section 1 thereof reads as follows: ‘ ‘ That it shall be unlawful for any person, firm or corporation or individual in the city of Helena, Arkansas, to engage in, follow, or carry on any of the following businesses, trades or occupations, vocations, callings or professions without first having obtained and paid an annual license therefor from t'he city collector; the amounts of such license are hereby fixed in this ordinance.” Item 56 of the ordinance imposed a tax of $50 on all persons practicing the profession of dentistry, and item 58 imposed a tax of $50 on doctors and surgeons. The ordinance required the tax to be paid in advance on or before October 15 of each year, and by section 30 it was provided that: “Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined twice the amount of the license imposed by this ordinance; each day that such violation shall continue shall constitute a separate offense.”

Certain doctors and dentists in the city of Helena failed to pay the tax, and were tried in the municipal court of the city for violation of the ordinance, and were fined twice the amount of the taxes provided by the ordinance. An appeal was duly prosecuted to the circuit court, and, pending the appeal, the ordinance was amended on September 7, 1933, by ordinance No. 2118, which reduced the amount of the license to be paid by physicians, surgeons and dentists for the next year by one-half. The amendatory ordinance contained no saving clause, but in the last section thereof it was provided that “This ordinance to take full force and effect from and after its passage, and all ordinances in conflict therewith to be void. ’ ’

The appeal came on to be heard in the circuit court after the passage of ordinance No. 2118, and a motion was filed in the circuit court to dismiss the case, for the reason that ordinance No. 2118 had repealed ordinance No. 1858, and contained no saving clause. This motion was sustained, and the cases were dismissed, and this appeal has been prosecuted from that order.

It is pointed out that §§ 9758 and 9759, Crawford & Moses’ Digest, do not apply to municipal ordinances, but apply only to the statutes of the State. These sections read as follows:

“Section 9758. When any criminal or penal statute shall be repealed, all offenses committed or forfeiture accrued under it while it was in force shall be punished or enforced as if it were in force, notwithstanding such repeal, unless otherwise expressly provided in the repealing statute.
“Section 9759. No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had remained in force. ’ ’

The case of Pleasant Grove City v. Lindsay, 41 Utah 154, 125 Pac. 389, is cited as holding that a State law providing that the repeal of a statute will not affect any action or proceeding commenced under or by virtue of the statute repealed has no application to municipal ordinances or any proceedings instituted under them.

We are cited also to § 7500, Crawford & Moses’ Digest, which reads as follows: “All laws, ordinances, resolutions or orders heretofore lawfully passed and adopted by the city or town council, not inconsistent with the Constitution or laws of this State, shall be, remain and continue in force until altered or repealed by the city council.”

It is argued that ordinance No. 2118 is an “alteration” of ordinance No. 1858, within the meaning of § 7500, Crawford & Moses’ Digest, and operates to repeal it, inasmuch as there was no clause in the later ordinance saving prosecutions pending in the earlier ordinance. See Wichita v. Murphy, 78 Kan. 859, 23 L. R. A. (N. S.) 245.

We are of the opinion, however, that this argument is based upon a misconception of the purpose and effect of ordinance No. 2118. No purpose is apparent in the amendatory ordinance to remit the tax for the fiscal year 1932-1933, nor to reduce the amount thereof. On the contrary, the purpose and effect of the amendatory ordinance is merely to reduce the tax for the ensuing fiscal year of 1933-1934, leaving unchanged the tax for the preceding year. The tax for the year 1932-1933 was due and was alleged to be delinquent when the amendatory ordinance was passed.

There is no repugnancy between these ordinances, as they relate to different years, and there is therefore no implied repeal. In the case of Sanderson v. Williams, 142 Ark. 91, 218 S. W. 179, it was held that, where there is no express repeal by the last enactment of prior statutes, it is to be presumed that no repeal was intended, and such effect will not be given unless the statutes are in irreconcilable conflict. Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649. This rule of construction applies to municipal ordinances as well as to the statutes of the State. Section 203, McQuillin, Municipal Ordinances.

We conclude therefore that the court was in error in dismissing the cases, and that judgment is reversed, and they are remanded for further proceedings.


author: Humphreys, J.

text:
    Austin v. Federal Land Bank of St. Louis.
    4-3368
    Opinion delivered February 26, 1934.

      W. C. Rodgers, for appellant.

      J. R. Crocker and James S. McConnell, for appellee.
   Humphreys, J.

Appellee instituted suit on August 9, 1932, against E. H. Copeland and wife and appellant and his wife in the chancery court of Howard County to foreclose a mortgage on the southeast quarter, southwest quarter and fractional west half of the southwest quarter of section 3, township 9 north, range 27 west, in said-county, executed by the Copelands to it on January 1, .1927, to secure certain indebtedness. Service was had upon the Copelands and appellant and his wife, and, no answer being filed within the time provided by law, a decree of foreclosure by default was taken and entered at the November, 1932, term of court. In that decree, a commissioner was appointed to sell the land and satisfy the indebtedness, at which sale appellee became the purchaser for $2,600.65 to be credited on said judgment. On January 6, 1933, the commissioner filed his report, and on the same day appellant filed an intervention, alleging that on December 10, 1927, the Copelands, by warranty deed, conveyed a half acre of said land by proper description to appellant, and, believing himself to be the owner thereof in good faith, he erected a cottage of' the value of $500 thereon and immediately moved into and occupied the same from that date as his .home.- It was further alleged in the intervention that, in order to compromise the matter, he (appellant) had offered to pay appellee $250 for the half acre of land, hut that it had refused to accept the offer, and that, in view of the facts, it would he unjust and inequitable to confirm the sale including the half acre without requiring appellee to pay for the improvements he had made thereon in good faith.

A demurrer was filed to the intervention and sustained on May 1,1933, and, on the same day, the report of sale of the commissioner was confirmed, and his deed to the purchaser was approved. Appellant then filed an amended intervention disclosing that, when the demurrer was sustained to the original answer or intervention, and on the day on which the sale of the lands by the commissioner was confirmed, appellant was insane. It appearing that appellant had been adjudged insane on April 17, 1933, prior to entering the order approving the sale and commissioner’s deed, appellee petitioned the court to set aside the sale and deed and appoint a guardian ad litem to defend for appellant. The court granted the motion, and, after setting aside the order of confirmation and approval of the sale, the sale, and the deed, he appointed a guardian ad litem to defend for appellant, who was permitted to file an answer for him setting out, in substance, that, after the execution and recordation of the mortgage sought to be foreclosed, the Copelands conveyed by warranty deed a half acre of the land described in said mortgage in order that appellant might build a home thereon for himself and wife; that appellant built a cottage thereon at an expense of $500, believing in good faith that he had absolute title to said half acre, and resided therein and paid the taxes thereon for more than five years without knowing that the Copelands had mortgaged the property to appellee and that appellee had recorded same before the Copelands conveyed the half acre to him; that, when appellee instituted the foreclosure suit, he offered it $250 for the. half acre of land upon which the house was built in which he resided in order to save his home, which it refused to accept, al-, though the half acre without the house was not worth, more than $10.

The cause was submitted upon the pleadings and an agreed statement, of facts, from which the court found there was no equity in the claim of appellant, and that he was not entitled directly or indirectly to compensation for his improvements, from which finding and decree an appeal has been duly prosecuted to this court. The agreed statement of facts is as follows:

'“It is agreed by and between the plaintiff and R. J. Austin, intervener in this cause as follows:
“That on the 10th day of December, 1927, George H. Copeland and wife, by warranty deed, conveyed to the intervener, R. J. Austin, for a valuable consideration, the following land in Howard County, Arkansas, to-wit: A part of the northwest quarter of the southwest quarter of section 30, township 9 south, range 27 west, beginning 30 yards north of the southwest corner and run north 50 yards,-east 50 yards, south 50 yards, west 50 yards to point of beginning, containing one-half acre, more or less.
That the said R. J. Austin, believing himself to be the owner of said land under color of title and his deed aforesaid, peaceably improved said land to the amount and value of five hundred dollars, by reason of which the value of the same was enhanced in the said sum of five hundred dollars.
“That the mortgage of the plaintiff in controversy herein is based on a valuable consideration, embraces the land claimed by the intervener, R. J. Austin, and was duly recorded in the proper record of Howard County, Arkansas, before the said improvements were placed in said land now claimed fey the said R. J. Austin. That the said intervener made said improvements in good faith without any notice of the mortgage to the plaintiff other than the notice the law imposes fey reason of the recording of said mortgage.
“That the said deed to said intervener was recorded in the proper record in Howard County in record hook 52, at page 618.
“That said intervener was judicially declared non compos mentis April 17, 1933.”

The undisputed facts in this case call for the application of the well-settled rule that one asking equity must do equity. Appellee took its mortgage on the land without reference to the cottage which was afterwards built by appellant at an expense of $500 on one-half acre thereof in good faith, under the belief that he was the owner of an indefeasible title thereto unassailable in law or equity. It is true that the statute permitting mortgages to be recorded provides that the filing thereof shall be notice to all persons of the existence of such mortgage, but appellant had no actual knowledge of the existence thereof. Without actually knowing that appellee had a mortgage on it, appellant in good faith made improvements which necessarily enhanced the value of the land. Appellee argues that it is entitled to the benefit of this enhancement in value because neither the common law nor the betterment act protects it. Perhaps not, hut equity should mold a remedy if it can be done without injury to appellee. This can be done by permitting’ appellant to move the cottage off the land within a reasonable time, and we are of the opinion that he should have six months in which to move same. It may inconvenience appellant to do so, but it is common knowledge that houses are now frequently moved from one plot of ground to another even though the plots are separated by quite a distance. This remedy will place appellee in statu quo and greatly benefit the appellant. It was within the power of the chancery court, after setting aside the sale and deed on the application of appellee, to refuse to confirm the sale and approve the deed until appellee, who was asking equity, should himself do equity. It was error to deny appellant the privilege of saving his home.

On account of the error indicated, the decree confirming the sale and approving the deed is reversed with directions to the chancery court not to re-enter same until appellant removes the house within the time indicated by the court.

McHaney, J., dissents.


text:
    Harris v. Little Red River Levee District No. 2.
    4-3374
    Opinion delivered February 26, 1934.

      Gordon Armitage and Brundidge Neelly, for appellant.

      Gulbert L. Pearce, for appellee.
   Humphreys, J.

Appellees brought suit in the chancery court of White County to obtain separate judgments against the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter, section 32, township 8 north, range 5 west in said county for taxes due upon betterments assessed against said lands, alleging that the amount due the levee district for the years 1927 to 1932, inclusive, was $347.88, and that the amount due the drainage district was $849.72.

Appellant, who purchased said lands from the State of Arkansas on the 12th day of April, 1932, for $108, filed an answer alleging that the district taxes sought to be recovered against the lands in question were forever barred and extinguished when the State's tax title which he bought was confirmed on April 11, 1932, under the provisions of act 296 of the Acts of 1929. Relative to the confirmation of the tax title to said lands in the State, the. answer of appellant contained the following specific allegation:

“■On the 2d day of September, 1931, the State of Arkansas under and by virtue of act No. 296 of the General Assembly of the State, filed suit to quiet and confirm its title in and to the said lands. The plaintiffs herein, being the owners of said land, intervened and were made parties, to said suit at their own request. Cross-complaint was filed setting up various reasons as to why title should not be confirmed, refusing and neglecting, however, to comply with the provisions of paragraph 8 of said act 296 which afforded them an opportunity to protect their rights. On the 11th day of April, 1932, this court sustained a demurrer to the intervention and cross-complaint of the plaintiffs herein and gave a decree in which title to the lands described in the complaint of the plaintiff were quieted and confirmed in the State of Arkansas.”

Appellees filed a demurrer to the answer, which was sustained; whereupon appellee elected to stand upon his answer.

The court then found that the special improvement taxes due appellees prior to April 11, 1932, were extinguished by the confirmation decree., but that the special improvement taxes accruing after the confirmation decree were valid and subsisting liens upon the lands and ordered separate-decrees of foreclosure for same in favor of appellees and ordered the lands sold to satisfy said liens and decreed that deeds be executed by the commissioner who was ordered to make, the sale at the expiration of five years, the redemption period fixed in act 43 of the Acts 1915.

Appellant has prosecuted an appeal to this court from that part of the decree fixing the lien upon the lands for improvement taxes accruing after the date of the decree confirming the title to said lands in the State.

Appellees have prosecuted a cross-appeal to this court from that part of the decree barring the collection of the improvement taxes which accrued prior to the date of the decree confirming the title to said lands in the State, and in directing the commissioner to execute a certificate instead of a deed to the purchaser.

The pleadings reflect that the lands were forfeited and sold to the State of Arkansas for the nonpayment of the taxes from the year 1928, and that, after two years from the date of the sale, they were certified to the office of the Commissioner of State Lands; and that the title' thereto was confirmed in the State on the 11th day of April, 1932, under the provisions of act 296 of the Acts of 1929. The pleadings also reflect that the lands were included in appellees ’ levee and drainage districts, which were organized in 1914, and were subject to special improvement taxes therein at the time same were forfeited to and the title confirmed in the State.

The pleadings also reflect that appellees were the owners of the lands by purchase for delinquent improvement taxes at the time the State instituted suit to confirm the. title thereto and intervened in the suit for the purpose of attacking the forfeiture of the sale of the lands to the State and were denied the right to do so because they refused to tender or pay the. taxes due the State. The intervention of appellees was filed in the confirmation suit under authority of § 8 of act 296 of the Acts of 1929. Said paragraph 8 is as follows:

“Any special improvement district claiming that there is owing to it overdue, taxes on any land described in the State’s petition shall have the right to be made a party defendant to the State’s suit for the purpose of contesting the sale under which the forfeiture to the State was made. And any such improvement district upon the payment of the amount of taxes, penalty and costs for which the land was forfeited and all past-due taxes which would have accrued had the land remained on the 'taxi books at the valuation against it immediately prior to the forfeiture, shall be subrogated to the State’s lien for the amount so paid, and such improvement district may include said amount due the district for taxes, and shall have the right to foreclose for such amount as though the same had been assessed against such land in favor of the improvement district.”

Appellant contends that appellees were estopped by filing the intervention and failing to tender or pay the taxes due the State from thereafter asserting a lien ■ upon the lands for improvement taxes due them. Section 8 of said act is a privilege extended to improvement districts to pay the State taxes and be subrogated to the State’s paramount lien upon the lands for taxes due them. Certainly, it was not the intention of the Legislature to force improvement districts to pay the State’s taxes upon lands embraced within said district; otherwise to lose their improvement taxes after confirmation of the tax title in the State.

Appellant also contends that the effect of the confirmation of tax titles by the State under the provisions of act 296 of the Acts of 1929 where special improvement districts fail to take advantage of § 8 of said confirmation act was to extinguish all special improvement taxes levied by the district, both delinquent and immature. This court has ruled that the forfeiture and sale of lands to the State for nonpayment of taxes has the effect of suspending the enforcement of special improvement taxes against the lands during the time the title thereto remains in the State or until the lands return to private ownership. This rule was announced in recognition of the State’s paramount right of taxation. The rule was reiterated and stated as follows in the recent ease of Stringer v. Conway County Bridge District, ante p. 481. ‘ ‘The decree of confirmation does not relieve the purchaser from the State of payment of assessments because tlie sale to the State does not extinguish the lien; it merely suspends the'lien while the title is in the State.”

Appellant argues that the districts became the owners of the lands in question by virtue of foreclosure proceedings to enforce their liens in the instant case, and that the rule announced in the Stringer case, supra, is not applicable. It makes no difference whether the delinquent improvement taxes have merged into a judgment or into the lands by foreclosure proceedings; still it is the duty of the purchaser to pay the districts’ special improvement taxes in order to extinguish the liens of the districts for the payment thereof, the enforcement of which has been suspended during the time the tax title remained in the State. The trial court erred in failing to order a sale of the lands to pay all the improvement taxes accruing both before and after the confirmation of the title in the State. Appellees contend the court erred in directing the commissioner to execute a certificate instead of a deed to the purchaser at the sale for the improvement taxes. Appellees argue that under the provisions of §§ 3632 and 6836 of Crawford & Moses’ Digest, the purchaser at the sale was entitled to a deed showing an indefeasible title unassailable either in law or equity, and that to deny the purchaser such a deed would impair the obligation of the contract the districts made with the bondholders. It is true that when the districts were created and the bonds issued, §§ 3632 and 6836 were in force, but the executions of the deeds provided for immediately after sale were a part of the foreclosure proceeding, or, more accurately speaking, a part of the remedy for enforcing the lien against the lands for delinquent improvement taxes. By act 359 of the Acts of 1925' the, right to redeem the lands within two years after the sale was granted to owners, so the time was extended two years from “immediately” for the purchaser at the sale to obtain a deed. This was not an unreasonable extension, and therefore was not a denial of a right or the impairment of a contract. It was a moratorium that did not materially interfere with or abridge the contract. Authority for this construction of the act extending the time of redemption will he found in the case of Sewer Improvement District No. 1 of Wynne, Ark., v. Delinquent Lands, ante, p. 738.

Appellees also contend that act 129 of the Acts of 1933 repealing a part of act 43 of the Acts of 1915 (Crawford & Moses’ Digest, § 5642), to the effect that the purchaser at the sale should have the right to possession of the lands and process therefor, impaired the obligation of the contract and was void. The districts were created and in operation prior to the passage of act 43 of the Acts of 1915, so appellees are in no position to assail the constitutionality of act 129 of the Acts of 1933 repealing that part of act 43 of the Acts of 1915 about which they complain. Act 43- of the Acts of 1915 was not a part of their contract and cannot be read into it.

On account of the errors indicated, the judgment is reversed on direct appeal and reversed in part on cross-appeal with directions to enter judgments against the lands for the entire amount of the improvement taxes prayed for in the complaint, and to order a sale thereof with direction to the commissioner to execute a certificate for a deed thereto at the expiration of Wo years from the date of sale.

Smith and McHaney, JJ., dissent.


author: Kirby, J.

text:
    Michael v. Wood.
    4-3379
    Opinion delivered February 26, 1934.

      J. O. Livesay, for appellant.

      Jones & Jones, for appellee.

      Will Steel, amicus curiae.

   Kirby, J.

Appellant, who resides in the State of Wisconsin, acquired title to an iSO-acre- tract of land in Little River County in 1928, but, through ignorance of our tax collection system, failed to pay the general taxes due thereon for the year 1928, and the land was returned delinquent, and was sold in June, Í929, to the State. The land was not redeemed within two years as required by law, and the forfeiture was duly certified to the State in June, 1931.

Suit was filed on August 24, 1931, pursuant to act 296 of 1929, page 1235, to confirm this forfeiture, and a decree of confirmation was rendered as prayed on May 16, 1932, quieting and confirming the title to the land in the State.

Thereafter, on May 15, 1933, appellant filed his verified petition in said action, in which he set up his ownership of the land and his lack of knowledge or information as to the pendency of the confirmation suit until after the rendition of the decree of confirmation. Various irregularities were alleged in the sale of the land to the State, which, if shown to be true, were sufficient to render the tax sale void, and it was the purpose of the confirmation proceedings to cure these irregularities.

The intervention alleged the nonpayment of the taxes due on the land for the year 1928, but did not allege the date of the sale, nor did the petition in alleging the various duties required of the collector and county clerk to make a valid sale, which under the law should have been performed in the year 1929, recite that year as it should have done. In alleging the omission of duties on the part of these officials, the year was alleged in each instance as “192.......” However, an amended intervention was filed which correctly stated the year to be 1929, but this amended intervention was not filed until May 29, 1933, which was more than one year after the date of the confirmation decree. This amendment did not constitute the filing of a new cause of action, but, as was said of a similar situation in the case of Sternberg v. Strong, 158 Ark. 429, 250 S. W. 344, “was properly an amendment to a complaint insufficient and defectively stated in the first instance.” Moreover, we judicially know that a sale for the 1928 taxes would occur, as the amended intervention alleged, in the year 1929, in which year the official duties of the collector and clerk in returning the land as delinquent and advertising it for sale would have been performed, and it was the improper performance of these duties whieh the intervention alleged rendered the sale invalid.

Appellee, who donated the land from the State after the rendition of the confirmation decree, intervened in this proceeding, and filed a demurrer to the intervention. The demurrer was sustained to the intervention, and it was dismissed as being without equity, and this appeal is from that decree.

The recent case of Black v. Waddell, ante p. 872, is decisive of the question presented on this appeal. We there said: “We think the clear intent and meaning of § 9 of act 296 is to grant to the true owner one year from the date of the confirmation decree in which to assert any defenses which might have been available to him prior to the decree, and that this right is conditioned only upon his ability to show that the tax sale or forfeiture to the State was void or voidable. Since § 9 of act 296 is construed to be an extension of one year of grace to the landowner, conditioned only upon his ability to show that the tax forfeiture or sale was void or voidable, it necessarily follows that it is immaterial whether or not he had actual or constructive notice of the pendency of such suit.”

The intervention sufficiently alleges the invalidity of the forfeiture to the State and contains the jurisdictional recital that the owner had no knowledge of the pendency of the confirmation suit until after the rendition of the decree of confirmation. Now, while the decree may have cured the irregularities which otherwise would have rendered the sale void, the confirmation was subject to the rights of the owner within one year to intervene by filing a verified motion asserting that he had no knowledge of the pendency of the suit and setting up a meritorious defense to the complaint upon which the confirmation decree was rendered. The case of Black v. Waddell, supra, is decisive of the question that a showing that the original forfeiture was void is a meritorious defense within the meaning of § 9 of this act.

"We conclude therefore that the court was in error in sustaining the demurrer to the intervention, and the decree is reversed, and the cause will be remanded with directions to overrule the demurrer.


author:
Mehaffy, J.
      Smith, J.,

text:
    Reiman v. Rawls.
    4-3380
    Opinion delivered February 26, 1934.

      Lee Miles, for appellant.

      Donham & Fulk, for appellee.
   Mehaffy, J.

This suit was brought in the Pulaski Chancery Court by appellant to “foreclose a mortgage against appellees. The note and mortgage were executed on December 20, 1927. The summons was issued and served on the appellees more than 20 days, and no answer had been filed, and the appellant filed motion to enter judgment and decree.

The appellees filed a response to said motion, and, among other things, alleged that the answer was not due under § 1 of act 21 of the Acts of the G-eneral Assembly of 1933. Section 1 of said act reads as follows: “Answers in suits to foreclose mortgages, deeds of trust or pledges executed prior to January 1, 1933, shall not be due until three months after the service of summons or the publication of the warning order.”

Prior to the passage of said act 21, answer in foreclosure suits was due 20 days after the service of summons. The appellees, in their motion, pleaded § 1 of said act, and asked that the motion be denied. Appellant then filed demurrer to appellees’ response. The court thereupon overruled the demurrer, and denied the motion to enter judgment and decree, and dismissed said motion for want of equity. The case is here on appeal.

If § 1 of act 21 of 1933 is constitutional, the case must be affirmed. This is the only question involved in this case.

Appellant contends that the act of the Legislature is unconstitutional and void because it is alleged that it is in conflict with § 17 of article 2 of the Constitution of the State of Arkansas. It is contended by appellant that the act impairs the obligation of the contract. It is also alleged that the act is in conflict with § 10 of article 1 of the Constitution of the United States. That section of the United States Constitution provides that no State shall pass any law impairing the obligation of contracts.

Act 21 is an emergency act passed for the relief or benefit of the citizens of Arkansas who are in destitute circumstances because of the public economic emergency. It is a matter of common knowledge that the present is a period of great depression, and that land values have decreased until there is practically no market for such property. A home that was worth $2,500' when mortgaged to secure a debt some years ago would not bring at foreclosure sale more than one-fourth of this amount, and in many cases much less. There is not only no market for land, but practically all tbe banks in tbe country have failed, and it is impossible to borrow-money secured by mortgage or pledge of property, to pay debts, and thousands of people in Arkansas who were making a living prior to the depression have lost their jobs, are without work, and without means of support. Governments are created for the purpose of securing the rights of the citizens, and, if a government, during a period of such depression as we now have, could not protect its citizens, there would be no reason for its existence.

The Supreme Court of Minnesota, in the case of Blaisdell v. Home Building & Loan Association, 189 Minn. 422, 249 N. W. 334, said: “Whether or not a public emergency existed was a question of fact, debated and debatable, which addressed itself primarily to the Legislature. That it existed, promised not to be presently self-curative, and called for action, appeared from, public documents and from common knowledge and observation. If the law-making power on such evidence has determined the existence of the emergency and has, in the main, dealt with it in a manner permitted by the constitutional limitations upon legislative power, so far as the same affect the class of landlords now challenging the statutes, the legislation should be upheld. * * * The proposition is equally fundamental that the State may establish regulations reasonably necessary to secure the general welfare of the community by the exercise of its police power, although the rights of private property are thereby curtailed and freedom of contract is abridged. * * * Emergency laws in time of peace are uncommon but not unknown. Wholesale disaster, financial panic, the aftermath of war, earthquake, pestilence, famine, and fire, a combination of men or the force of circumstances may, as the alternative of confusion or chaos, demand the enactment of laws that would be thought arbitrary under normal conditions.”

The court also said in the same case: “In addition to the weight to be given the determination of the Legislature that an economic emergency exists which demands relief, the court must take notice of other considerations. The members of the Legislature come from every community of the State and from all the walks of life. They are familiar with conditions generally in every calling, occupation, profession and business in the State. Not only they, but the courts must be guided by what is common knowledge. It is common knowledge that in the last few years land values have shrunk enormously. Loans made a few years ago upon the basis of the then going values cannot possibly be replaced on the basis of present values. ’ ’

All that was said by the Minnesota court may be said of conditions in Arkansas at this time. The Minnesota case went to the Supreme Court of the United States, and was decided by that court on January 8,1934. That court upheld the Minnesota law, and affirmed the decision of the Supreme Court of Minnesota.

The Supreme Court of the United States said: “To ascertain the scope of the constitutional prohibition, we examine the course of judicial decisions in its application. These put it beyond question that the prohibition is not an absolute one, and is not to be read with literal exactness like a mathematical formula.”

The Supreme Court of the United States also said in the above case: “But into all contracts, whether made between States and individuals, or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre-existing and higher authority of the laws of nature, of nations or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur.” * * * “It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the. common weal, or are necessary. for the general good of the public, though contracts previously entered into between individuals may thereby be affected. * * * The reservation of State power appropriate to such extraordinary conditions may be deemed to be as much a part of all contracts,, as is the reservation of State power to protect the public interest in the other situations to which we have referred. * * * The reserved power cannot be construed so as to destroy the limitations, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other.”

There are. many decisions of both State courts and United States courts upholding emergency legislation; but it would serve no useful purpose to review or cite them here. The recent decision of the Supreme Court of the United States above referred to reviews the authorities and settles the law on this question.

However, the decision in this case does not depend upon the existence of an emergency, because. § 1 of act 21 affects the remedy only, and does not impair the obligation of a contract. The courts have always held that the Legislature is not prohibited from legislating on the remedy, provided the legislation did not impair the obligation of a contract.

One of the cases cited and relied on by appellant is Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143. The court in that case said: “If the laws of the- State passed after-wards had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection. For, undoubtedly, a State may regulate at pleasure the modes of proceeding in the courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations.” * * * “Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. ’ ’

This court said: “The rule is, that whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract.” Vernon v. Henson, 24 Ark. 242.

This court also said: “The State may ehange legal remedies, forms of action, of pleading and of process, the times of holding courts, etc., and may shift jurisdiction from one court to another. And such changes may have the incidental effect of delaying the collection of debts.” Robards v. Brown, 40 Ark. 423.

Again this court said: “While it is true that the State may change and alter remedies, extend or limit the time that notice may be given, they might give the defendant to the second term of the suit brought to answer, and do many other things touching the remedy, yet they must not, in acting on the remedy, interfere with any right accruing under the contract.” Oliver v. McClure, 28 Ark. 555.

Courts have uniformly held that changing the time of hplding court did not impair the obligation of a contract. If the Legislature should change the law in any district in the State, so that the term of court would begin 60 days later than at the time the law was passed, no one would contend that this impaired the obligations of a contract, although it would postpone the time to answer 60 days. And the Legislature may, without violating any constitutional provision, ehange the time to file answer, as provided in § 1 above referred to. There is nothing in this section violating any provision of the Constitution.

The decree of the chancery court is affirmed.

Smith, J.,

(concurring). In my opinion § 2 of act 21 is unconstitutional as imposing a condition not previously existing, which, in many cases arising out of mortgages and deeds of trust executed before the passage of the act, will postpone and greatly delay foreclosure proceedings. "While it was no doubt contemplated that foreclosure suits must be prepared for submission before the term of court convened, it must also have been contemplated that a hearing would be had before foreclosure decrees are rendered. It is easily conceivable that, even though the first three days of the term were wholly devoted to hearing such cases — and the act does not require that this be done — all such cases, although ready for submission, might not be reached within the time limited. Not much ingenuity would be required to protract the hearing of a few cases to an extent that many other similar cases could not be heard at all, with the consequent result of a delay which might prove to be indefinite.

However, act 21 and much similar legislation passed at the same session of the General Assembly manifests the purpose to accord the debtor the greatest indulgence which may be granted, and it is, therefore, reasonably certain that the legislation would have been enacted even though § 2 were eliminated. It is well settled that the unconstitutional portion of a statute may be stricken out without impairing the effect of the remainder where the provisions are wholly indepéndent and it can be seen that the lawmakers would have enacted the remaining part of the statute, even though the act does not contain an express declaration of the intention to enact so much of the legislation as may prove to be constitutional. Heinemann v. Sweatt, 130 Ark. 74, 196 S. W. 931; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77; McClendon v. Board of Health, 141 Ark. 114, 216 S. W. 289; Brooks v. Wilson, 165 Ark. 477, 265 S. W. 53; County Board of Health v. Austin, 169 Ark. 436, 276 S. W. 2. There are many other cases to the same effect.

Section 1 of the act only is here directly involved, and, as it appears to be a reasonable amendment to the practice in foreclosure cases, I see no constitutional objection to its enforcement, and it may be enforced even though § 2 is unconstitutional, as I believe it to be. I therefore concur.

I am authorized to say that Mr. Justice McHaney concurs in the views here expressed.


author: McHaney, J.

text:
    Felts v. Cherry Hill School District No. 10.
    4-3381
    Opinion delivered February 26, 1934.

      Pipkin & DeLongy, for appellant.

      Duke Frederick, for appellee.
   McHaney, J.

On June 14, 1930, the county board of education of Polk County, on petition of a majority of the electors therein, abolished certain school districts and formed the territory in such districts into a new district known as Cherry Hill Consolidated School District No. 10. Thereafter on petition, the county board called an election for July 19 in said new district for the purpose of the electors therein voting on the proposal to borrow money from the revolving loan fund and to levy a tax of 7 mills on the assessed valuation of the real and personal property of the district. The election was held and the proposals carried. Bonds were issued and delivered to the State Board of Education in the sum of $9,800, being 7 per cent, of the assessed valuation. The district under the advice of the State Board entered upon a large building program. Instead of erecting and equipping such buildings as the bond issue would pay for, it entered into contracts for three large stone buildings, two of which cost $3,075 each, and one, at Cherry Hill, cost $9,750, or a total of $15,900 for buildings alone. The building contracts with the contractor provided that they should be paid for “by warrants on revolving and equalizing funds.” And it appears from the evidence that the State Department of Education agreed to furnish the money to cover the cost of the buildings in excess of the bond issue and to pay the cost of all equipment, including three buses, out of the State “equalizing fund.” About $6,000 was expended for furniture, equipment and buses. The contractor and equipment furnishers were given warrants of the district drawn on the “equalizing fund” for the excess cost above the bond issue. In May, 1932, the then holders of said warrants, appellants, except Felts, induced the district’s directors to re-issue said warrants, including interest to date, without designating the fund on which they were drawn and apparently making them the direct obligations of the district, payable out of its general revenues. This suit was thereafter brought to enjoin the county treasurer from paying them out of the district’s general revenues and to have them declared void as to said district and its school funds. The re-issued warrants total $11,886.67. Trial resulted in a decree granting the relief prayed, and this appeal followed.

We think the trial court correctly so held. Appellants argue that this is a consolidated district, and that there is a distinction between the powers of the board of directors in such a district and in a rural special school district. We think it unnecessary to discuss or decide this question. The undisputed evidence shows that it was never contemplated by any of the parties that said district should pay any part of the excess cost of the buildings and equipment, that is, excess over the bond issue, out of the general revenues of the district. It was understood and agreed that the State Board would furnish such excess from the “equalizing fund.” The electors voted a tax on themselves of 7 mills to secure the payment of a bond issue of $9,800, which is 7 per cent, of the total assessed valuation of the property in the district. The directors had the authority to borrow so much money and no more, and the contractor and equipment vendors elected to take warrants drawn on the “equalizing fund” for the excess. They have no right to demand or receive warrants drawn on the general school revenues of the district, and the directors had no power to bind the district thereto without a vote of the electors of the district. Act 252 of 1925, p. 742.

These warrants will be payable out of the “equalizing fund,” if, and when, there is anything in such fund to pay them.

Affirmed.


author: Butler, J.

text:
    Johnson v. Johnson.
    4-3384
    Opinion delivered February 26, 1934.

      McElhannon & Callaway, for appellant.

      O. A. Featherston and McMillan & McMillan, for appellee.
   Butler, J.

On February 26, 1927, J. R. Johnson, being then the owner of $4,000 worth of the capital stock of the Johnson Orchard Company, a corporation, sold the same on credit to W. S. Johnson, who on that day executed and delivered to J. R. Johnson his three promissory notes for the sum of $1,333.33, due respectively, one, two and three years after date with 8 per cent, interest until paid. Each note recited that it was in part payment of the purchase money of the capital stock ‘ ‘ according to the terms of the contract made and entered into on this date, in which contract these notes are referred to.” That part of the contract involved, after reciting the execution of the notes, provided in effect that the purchaser of the stock agreed to resell the same at its par value to the seller, J. R. Johnson, upon a return of the notes, or, if any or all of them should have been paid, to make repayment in cash for any or all of such notes as had -been paid. It was' also provided that the resale “shall be consummated when the debt due the Pike City Orchard Company from the Johnson Orchard Company shall have been fully paid,” and that no additional stock of the Johnson Orchard Company should be issued as would in any way impair the value of the stock involved without the consent of J. R. Johnson.

J. R. Johnson died in 1930, and appellee, his widow and administratrix, brought this suit to enforce the payment of the notes. On issue joined testimony was adduced, and the trial court found the notes to be valid and unpaid; that defendant was entitled to an offset, and rendered judgment for the balance. The defendant has appealed and rests his case on the sole ground that the notes and contract are void for want of mutuality. In support of this contention, he argues that, although he was obligated to pay the notes and to resell the stock to J. R. Johnson for the same sums- at which he purchased the stock, it was left optional with J. R. Johnson whether he would repurchase the same. Appellant points out the fact that the stock was not delivered to him but retained by the seller, and from this contends there was really no sale of the stock but a colorable, transaction only made for the purpose of enabling J. R. Johnson to borrow money, the result of which would be solely beneficial to J. E. Johnson and without any corresponding benefit to him.

At this point it may be said that the testimony of several witnesses was taken for the purpose of showing the reasons for which the sale was made and the contract entered into, but which we do not consider because the contract is unambiguous, and we' therefore look only to it to discover its terms and the intent of the parties.

In support of the contention of want of mutuality, we are cited to a number of decisions of our court which have held that the contracts considered in those cases were void for the. reason contended in the case at bar, and especially to the rule as formulated in the case of Grayling Lumber Co. v. Hemingway, 124 Ark. 354, 187 S. W. 327, as follows: “It is a general principle in the law of contracts that an agreement entered into between the parties to a contract in order to be binding must be mutual; and this is especially so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.”

An examination of those cases discloses that the doctrine stated was applied because the want of mutuality would leave one party without a valid or available consideration for his promise. Such is not the case in the contract before us. The consideration for appellant’s promise to pay was his purchase of the. stock with whatever advantage which might result to him thereby, whether great or small, and is sufficient to support the obligation on his part to resell to his vendor upon the happening of the contingency named in the contract, namely, the payment to the Pike City Orchard Company of the debt due it by the Johnson- Orchard Company. Peterson v. Chase, 115 Wis. 239, 91 N. W. 687; Pyskoty v. Sobusiak, 109 Conn. 593, 145 Atl. 58. The last named case was one where the seller of the stock agreed that if the purchaser should become dissatisfied he would rebuy it. It was held that the official and financial interest of the seller in the corporation was sneh as to afford a sufficient consideration for his agreement to repurchase the stock.

The fact that the stock was retained by J. E. Johnson and never delivered to the appellant is immaterial. The contract is that the- stock was to be held by J. E. Johnson only as collateral security for the payment of the notes evidencing its purchase price. As between the parties, delivery was not necessary to vest title in the buyer, and title to the stock passed, although it was not delivered to the appellant but remained in the possession of the seller. Costar v. Davies, 8 Ark. 213, 46 Am. Dec. 311; Danley v. Rector, 10 Ark. 211, 50 Am. Dec. 242.

In the instant case the appellant received the benefit resulting from the ownership of the stock and was entitled to the possession of the certificates of shares upon the payment of the notes. The defense of want of mutuality has no application except where the party alleging it has never received the benefit of the contract on his part and never had the right to enforce it. Coldcleugh v. Johnson, 34 Ark. 312.

In 6 R. C. L., p 689, the rule is thus stated: “A contract does not lack mutuality merely because every obligation of the one party is not met by an equivalent counter obligation of the other party.” And on page 686 the author says: “Consideration is essential; mutuality of obligation is not, unless the want of mutuality would leave one party without a valid or available consideration for his promise. The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations for each other. Where there is no other consideration for a contract, the mutual promises must be binding on both parties. But where there is any other consideration for the contract, mutuality of obligation is not essential.”

These principles were referred to with approval by this court in the case of Philpot Const. Co. v. Danaher, 180 Ark. 926-37, 23 S. W. (2d) 632, and their application to the contract involved in the instant case renders the plea of want of mutuality unavailable, and the trial court was correct in so holding. Let the decree be affirmed.


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    Watson v. Harper.
    4-3391
    Opinion delivered March 5, 1934.

      Lee Miles, for appellant.

      Pat L. Robinson, for appellee.
   Johnson, C. J.

To restrain Fred Watson, State Revenue Commissioner, from collecting an alleged excessive license tax fee under act No. 7, passed and approved at the 1933 special session of the Arkansas Legislature, this proceeding was instituted by appellee in the Pulaski Chancery Court.

By stipulation of counsel, the facts were agreed upon as follows: “That act No. 7 is an act passed by the special session of the General Assembly of the State of Arkansas for the year 1933, for the purpose of permitting and regulating the sale of beer and wine under certain regulations, as provided by said act, in the State of Arkansas. That the plaintiff has paid to the defendant, Commissioner of Revenue, the sum of two hundred fifty dollars ($250) for permit to engage in the wholesale beer distributing business.

“That plaintiff maintains warehouses in the cities of Little Rock, Hot Springs, El Dorado and Pine Bluff among seventeen counties; that each of said distributing points, towit: Little Rock, Hot Springs, El Dorado and Pine Bluff, distribute beer to retail dealers in other counties than those in which the distributing point is located. That the defendant is attempting to collect an additional fee of two hundred fifty dollars ($250) for each warehouse, or fifty dollars ($50) per county for each distributing point, and $50 for each county served from said warehouses.

“It is agreed between the parties that this stipulation may be filed and considered by the court as evidence in this action, each party reserving the right to introduce additional evidence, if it wishes to do so.”

Upon trial, the chancellor determined the issues in favor of appellee, and directed issuance of a permanent -injunction enjoining and restraining the State Revenue Commissioner from collecting or endeavoring to collect from appellee additional license fees during the fiscal year ending July 1, 1934. This appeal brings in question the decree thus entered.

The chancellor construed act No. 7 to mean that, when any one broker, distributor or wholesale dealer paid to the State a license fee of $250, such broker, distributor or wholesale dealer was thereby authorized, privileged and licensed to establish and maintain wholesale warehouses or separate. and distinct distributing points in any or all the seventy-five counties of the State.

Section 4 of act No. 7 of the special session of 1933, in part, provides:

“For the privilege of doing business respectively as herein below indicated there shall each fiscal year, beginning July 1st, be assessed, levied and collected:
“(A) For each wholesale dealer or broker, or distributor in light wine and/or beer a special tax of fifty (50) dollars for each county in which said broker, distributor or wholesale dealer operates, provided, that in no event shall said tax exceed two hundred and fifty ($250) dollars for any one broker, distributor or wholesale dealer.”

Paragraphs B and C of § 4 deal with manufacturers ’ and retailers ’ license fees (which are not relevant to any issue here presented). Then follows this provision : ‘ ‘ The tax shall be due and payable at each place where the business of wholesale dealer, manufacturer, distributor or retail dealer, as the case may be, is carried on.”

The chancellor’s construction of act No. 7 gives full effect to the proviso “that in no event shall said tax exceed $250, for any one broker, distributor or wholesale dealer, ’ ’ and completely ignores all the language preceding and following it. If this proviso were stricken from said act, it would definitely appear that any broker, distributor or wholesale dealer, who sought license thereunder, would be required to pay a fifty dollar license fee in each county in which he might operate. Thus if business were done by such broker, distributor or wholesale dealer in each of the seventy-five counties of the State, a license fee of $3,750 would be required for such privilege. This language, however, is restricted by the proviso which follows it, and which has been heretofore quoted. Following the proviso, but appearing in the same section of the act, is the following language: The tax shall be due and payable at each place where the business of wholesale dealer * * * is carried on.”

It has long been the established doctrine of this court to so construe statutes that they may have a reasonable effect, agreeably to the legislative intent. Every word, clause and sentence should be given effect, if possible, and, in construing the whole act, if the legislative intent is found to be different from the literal import of some of its terms, then the legislative intent should prevail. Wilson v. Biscoe, 11 Ark. 44; State v. Jennings, 27 Ark. 419; L. R. & F. S. Ry. Co. v. Howell, 31 Ark. 119 ; Haglin v. Rogers, 37 Ark. 495; Doles v. Hilton, 48 Ark. 307, 3 S. W. 193; Ingle v. Batesville Gro. Co., 89 Ark. 378, 117 S. W. 241.

The language of the proviso “for any one broker, distributor or wholesale dealer,” when considered and construed with all other provisions of act No. 7, makes it definite and certain that the legislative intent was to make each separate wholesale warehouse or distributing point a separate unit for the-assessment and collection of the license fees provided for in said act. We think the language, “any one broker,” etc., has reference to the situs of the business transacted, instead of the broader meaning attributed thereto by the chancellor.

Moreover, when all provisions of act No. 7 are construed and harmonized in the light of the rule of construction, heretofore quoted, it clearly appears that it was the legislative intent that a broker, distributor or wholesale dealer, who has and maintains only one wholesale distributing warehouse, may, upon the payment of a license fee of $250, make deliveries of his products from such point only to any or all the seventy-five counties of the State: On the other hand, any broker, distributor or wholesale dealer who undertakes to establish more than one wholesale warehouse or distributing point in other counties of the State, and such additional warehouse undertakes to operate in five or more counties, an additional license fee of $250 is chargeable against each such distributing warehouse. In other words, it was clearly the intention of the Legislature to assess a license fee for the privilege of wholesaling light wines and beers a tax of $50 per county as a prerequisite to the establishment of a wholesale warehouse for such distribution; and, in the event such warehouse or distributing point operates or serves trade in more than one county, to charge an additional fee of $50 for each county so served up to a maximum of five counties. For instance, if appellee’s Pulaski County warehouse serves five or more counties, the fee on this distributing point should be $250; if it serves or operates in less than five counties, the license fee should be $50 for each county served. License tax fees on appellee’s warehouses and distributing plants located at Hot Springs, Pine Bluff and El Dorado should likewise be determined. For instance, the warehouse at Pine Bluff must, in any event, pay a license fee of $50. This gives the privilege of doing business in Jefferson County only. If products are distributed from this warehouse to five or more counties, the license fee on the Pine Bluff warehouse should be $250. If this warehouse serves only four counties, the license tax fee should be $200. In other words, each separate wholesale warehouse or distributing point for light wines and beers must pay a tax of $50 for each county served up to a maximum of five counties, or a maximum license fee of $250.

Appellee’s warehouses at Hot Springs and El Dorado should pay license fees in the same manner as heretofore indicated.

The agreed statement of facts filed herein shows that appellee has and maintains four separate and distinct warehouses or distributing points for the distribution of light wines and beers, and that these four warehouses operate in seventeen counties. Prom this agreed statement, we cannot determine the number of counties actually served by the Pulaski County warehouse. Neither can we determine the number of counties served by the Hot Springs, Pine Bluff or El Dorado warehouses. Therefore we are unwilling to undertake to determine the amount now due the State.

The cause will be reversed and remanded to the Pulaski County Chancery Court, with directions to hear testimony on the additional amount due the State as license tax fees by appellee, and to render judgment in favor of. appellant therefor in conformity with this opinion.

McHaney and Butler, JJ., dissent.


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    Kirk v. Mason.
    4-3395
    Opinion delivered March 5, 1934.

      W. A. Bates and Evans & Evans, for appellant.

      Connelly Harrington and O. R. Smith, for appellee.
   Smith, J.

W. R. Kirk, a citizen of Scott County, died testate on or about June 24, 1929. He was living with his second wife at the time of his death, and no children had been born to either of his marriages. His second wife was a widow when he married her, and she later died without issue born to her.

Kirk’s will was duly admitted to probate, and his surviving widow was appointed executrix, as was directed by the will, the relevant portions of which are as follows: The testator first directed his executrix to pay his just debts, if any. 'By the second paragraph he devised to his wife all his real estate, “to be hers, used and possessed by her, to enjoy the rents and profits therefrom during her entire natural life.” Paragraph 3 of the will reads, in part, as follows: “It is my will that at my death my said wife, Mollie Kirk, is to make a division of my personal estate, consisting of stock, moneys, notes and ac-counts, choses in action and bank stock and personal property of every kind, and that she is to have as her share of said personal property a one-third interest in the whole of my personal estate.” This paragraph directed that $500 be paid to the testator’s brother, R. Kirk, “to reward him for taking care of my father and mother during their declining years and last sickness and death, and the remainder of the two-thirds of my personal estate to be divided equally among my brothers and sisters or their descendants, then living, namely, as follows: * * The brothers and sisters were there named, along with the six children of a deceased brother, who were given their father’s interest. .

Paragraph 4 of the will reads as follows: “It is my will and desire that at my death my wife dispose of the personal estate as above set out, and retain only such of the personal property as is necessary for her in the operation of my farm, and that it is my desire that none of my land be sold or divided until the death of my wife, Mollie Kirk, and at her death, and after the payment of her just and legal debts and burial expenses, and the erection of a monument to each of our graves, it is my desire that my real estate and any personal property that remains undisposed of by my wife during her natural life be then divided equally among my brothers and sisters, and their descendants. The descendants of any one of my brothers and sisters to share only in the part that my deceased brother or sister would share in my estate. The above is conditioned that each of us die without issue, leaving no children.”

By paragraph 5 the testator named his wife as executrix, and directed that she be empowered to act as such without giving bond. Letters testamentary issued, as was directed in the will, and the executrix caused an inventory to be made and the property to be appraised. The entire estate was appraised at $10,980.47, of w^iich sum $1,680 represented the value of the land. The testator had made contracts to convey certain portions of the real estate, and, by appropriate orders, these contracts were performed, and the unpaid purchase money collected. The personal property consisted principally of money in bank and the capital stock of the bank, in which the money was deposited, and certain notes and accounts. Most of this property was converted into money under orders of the probate court, and the executrix reported to the court that she had $9,000 on hand to be distributed as directed by the will. In her petition for an order of distribution the executrix reported the taxes and other disbursements which had been made. She alleged that she was entitled to one-third of the money under the will and to commissions of <$320 as executrix, making an aggregate amount to which, she was entitled of $3,320. After allowing $500 to he paid E. Kirk, a balance of $4,972.99 was reported on hand for distribution among the surviving brothers and sisters and the six children of the deceased brother, the share of each being calculated and stated.

An order of distribution was made pursuant to the prayer of the petition, and this money appears to have been paid over to the devisees who were entitled thereto. Mrs. Kirk, the executrix, deposited her part to her individual credit in the bank with which her husband had been connected, and at the time of her death, which occurred in June, 1932, she had on deposit $1,400 in a checking account and $1,600 in the form of a time deposit. It was stipulated that all the money on deposit had been derived from the estate of the testator.

After the death of Mrs. Kirk, Emmett Miller qualified as executor in succession of Kirk’s estate, and M. C. Bird took out letters of administration on the estate of Mrs. Kirk.

Certain claims were probated against the estates of both Mr. and Mrs. Kirk, which need not be considered, as there is no controversy about them. Kirk’s estate was solvent, and the deWs were small, and the will had directed the payment, not only of the testator’s debts, but those of his wife’s also, including her burial expenses and the cost of erecting a monument to each of their graves.

Mrs. Kirk was survived by Mrs. Myrtle Mason, her sister and sole heir-at-law, who was appointed administratrix of the estate of Mrs. Kirk by the probate court of Benton County, in which county Mrs. Mason resided and at whose home Mrs. Kirk had died.

Mrs. Mason filed a petition in the probate court of Scott County praying that the letters of administration granted to Bird upon the estate of Mrs. Kirk be revoked, and that he be required to account for and to pay over to her all assets of Mrs. Kirk which had come into his hands, including the bank deposits. This petition alleged that under § 1, Crawford & Moses’ Digest, an administration upon Mrs. Kirk’s estate was unnecessary. A response was filed by Bird, as administrator, putting the allegations of the petition in issue. A consent order was entered by the probate court of Scott County directing Bird, as administrator, to pay over to Mrs. Mason the $1,400 demand deposit to the credit of Mrs. Kirk at the time of her death, and all other questions were reserved.

The heirs of Mr. Kirk appealed from this order, and on the trial of this appeal it was adjudged by the circuit court that Mrs. Kirk was the owner of both deposits, although the money they represented had been derived from the estate of her husband under the provisions of his will, and this appeal is from that judgment.

It is insisted for the reversal of this judgment that the circuit court erroneously construed the provisions of the will, hereinabove recited, and, in support of this contention, we are cited to the case of King v. Stevens, 146 Ark. 447, 225 S. W. 656, where it was held that an estate for life may be created in personal property of a durable nature, with remainder over, and in such cases the property remaining at the death of the life tenant is to be distributed to the remainderman. We are cited also to numerous cases announcing rules for the construction of wills containing conflicting provisions.

We do not review these cases, as we think there is no conflict in the provisions of the will. Paragraph 2 clearly gave the widow only a life estate in the real estate, but with equal certainty paragraph 3 gave her absolutely a third of the personal property, and we think there was nothing in paragraph 4 reducing this devise except only as to the personal property necessary for her use in the operation of the farm.

It has been many times said that the paramount rule in the construction of wills is to ascertain the intention of the testator from the language used, giving force and meaning to each clause in the entire instrument. Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20; Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018; Kelly v. Kelly, 176 Ark. 548, 3 S. W. (2d) 305; First National Bank of Fort Smith v. Marre, 183 Ark. 699, 38 S. W. (2d) 14.

It is the law also that technical rules of construction which require certain provisions of a will to be disregarded are never to be resorted to except for the purpose of escaping total inconsistency. Little v. McGuire, 113 Ark. 500, 168 S. W. 1084, and cases there cited.

There is, in our opinion, no provision of the will which requires some other portion of it to be disregarded; on the contrary, it may be construed as a harmonious whole. It is true, of course, that, having made no election to disregard the will, the widow is presumed to have elected to take the provisions made for her by the will, although it may now appear that she would have profited by renouncing the will. Section 3527, Crawford & Moses’ Digest. But she does take what the will, read in its entirety, gives her.

While the widow was given only a life estate in the lands, it was evidently the intention of the testator that she should have the full benefit of this use, and as a means to that end she was given, in addition to the provisions made in paragraph 3, the right to retain and use so much of the personal property as was necessary to operate the farm; this last provision, however, to continue only so long as she lived; and paragraph 4 renews the direction to “dispose of the personal estate as above set out” in paragraph 3, but to retain and not to dispose of so much of the personal property as was necessary for the operation of the farm, as to which property there was a remainder, which was to be used, rather than the real estate, in paying the just and legal debts his wife might owe, including her burial expenses and the erection “of a monument to each of our graves,” and the real estate and personal property used in connection with the farm then remaining was to be divided equally among the brothers and sisters of the testator and their descendants, in accordance with the directions in that behalf contained in paragraph 3.

Counsel for appellee ask, in their brief, that we direct the revocation of the letters of administration issued to M. C. Bird as administrator of the estate of Mrs. Kirk. But this question appears to be pending and undisposed of in the Scott Probate Court, and for that reason we do not dispose of this question.

The judgment of the circuit court accords with this construction of the will, and it is therefore affirmed.