author: Hart, J. McCulloch, O. J.

text:
    Ferguson v. Montgomery.
    Opinion delivered March 28, 1921.
    1. Elections — primary election contest — supporting affidavits. —The provision in Crawiord & Moses’ Digest, § 3757, that a complaint in a primary election contest shall be supported by the affidavit of at least ten reputable citizens is satisfied where the required number of reputable citizens combine in one affidavit, made upon belief merely, without setting forth the facts upon which their belief is based.
    2. Elections — affiants to be of same party. — Crawford & Moses’ Digest, § 3772, providing that a complaint in a primary election contest shall be supported by the affidavit of at least ten reputable citizens, implies that such affiants shall be members of the same political party with contestant.
    3. Elections — primary election contest — sufficiency of complaint. — A complaint in a primary election contest should not be dismissed because the affidavit of ten reputable citizens, required by Crawford & Moses’ Digest, § 3772, failed to state that such affiants were of the same political party with contestant.
    4. Elections — PRIMARY election contest — amendment of complaint. — Where the original complaint in a primary election contest alleged that illegal votes were cast for contestee in certain townships, it was not error to permit contestant to amend his complaint to include other townships in which the evidence showed that illegal votes were cast for contestee; there being no showing that the amendment would unduly delay the trial.
    5. Elections — control of courts over primary elections. — Except to the extent that jurisdiction is conferred or regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers.
    6. Elections — regulation of primary elections. — The existence of political parties may be recognized by the State, and within reasonable limits the means by which partisan voters shall be protected in exercising their preferences for party candidates may be regulated,
    7. Elections — primary elections. — The object of holding a primary election by a political party is to select party candidates, and no voter should be permitted to vote at the primary election of a political party unless he is a member of such party.
    8. Elections — primary elections. — The avowed purpose of Crawford & Moses’ Digest, § 3778, is to take away from political parties the right to provide rules regulating primary election contests, but it does not affect the tests required of voters at the primaries held by such parties.
    9. Elections — primary elections — review. — In primary election contests the courts may review the action of the duly constituted authorities of a political party in allowing members of an opposition party tp vote in a primary.

      10. Elections — primary elections. — It is the duty of the courts to construe the act regulating primary election contests so as to advance the remedy provided by the act, rather than to render it futile or unavailing.
    11. Elections — primary elections. — In a contest over a nomination in a Democratic primary, where the rules of the party provided that none but Democrats should participate therein, it was error to refuse to permit contestant to prove that certain Republicans were allowed to vote for contestee.
    12. Elections — evidence—illegal votes. — In a contest of the Democratic nomination for a county office, contestant’s offer of proof that a number of Republicans had voted for the contestee held sufficiently definite.
    IS. Elections — necessity op challenging voters. — In a contest for the Democratic nomination, the contestant did not lose his right to object to Republican votes for contestee because he did not challenge such votes at the polls.
    14. Elections — primary elections — fraud.—It was not error to refuse to throw out the entire vote of a township on account of illegal votes, though the judges and clerks of election failed to make duplicate register of the names of the electors in the order in which they presented their ballots, as required by § 3765, Crawford & Moses’ Digest, since the requirement in that section that each ballot shall be signed by the voter afforded a means of eliminating the illegal votes.
    15. Elections — primary election contest — ouster op dependant.— Under Crawford & Moses’ Digest, § 3776, providing that, if a nomination contest should not be finally determined until after an election, and the defendant is elected and found not entitled to the nomination, the judgment should operate as an ouster, the word “defendant” should be construed to mean the party who defends the suit when finally determined, whether in the circuit court or in the Supreme Court, so that it applies equally to contestant and contestee.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    reversed.
    STATEMENT OP PACTS.
    This is a suit to contest a primary election brought in the circuit court under our statute, by J. M. Montgomery against G-. D. Ferguson to contest the nomination for the office of county judge of Johnson County.
    Montgomery, the contestánt, alleged that he received more legal votes for the office of county judge in the Democratic primary held the 10th day of August, 1920, .than were cast for Ferguson, the contestee, but that the latter had been returned as the .the Democratic nominee for said office.
    In his complaint, Montgomery alleged that certain fraudulent practices were indulged in and certain illegal votes were cast for Ferguson in certain voting precincts named in his complaint. His complaint states the number of illegal votes received by Ferguson and the townships in which they were received.
    Ferguson filed an answer within the time prescribed by the statute and specifically denied the allegations of the complaint. He stated that certain illegal votes were cast for the contestant in certain townships named by him in his answer.
    The number and character of the illegal votes are stated in the answer. The proof developed irregularities and illegal votes in other townships than those named in the pleadings, and Montgomery was permitted during the trial to amend his complaint to conform to • the proof taken. This was done over the objections of Ferguson.
    At the conclusion of the hearing the circuit court found that Montgomery had received fifty-five more votes in the primary election than Ferguson. Judgment was accordingly rendered declaring Montgomery the Democratic nominee for the office of county judge of Johnson County, and his name was ordered to be placed upon the official ballot to be voted in the general election held in said county on Tuesday, November 2, 1920. '
    From the judgment rendered, Ferguson has duly prosecuted an appeal to this court.
    Montgomery was duly elected at the general election aforesaid and has been holding the office of county judge of Johnson County since that time.

      Jesse Reynolds, Paul McKewnon and Hill & Fits-hugh, for appellant.
    1. The court erred in overuling the complaint on account of the insufficiency of the supporting affidavit.

      2.It was error to refuse to admit testimony as to the alleged Republican votes cast for Montgomery. This was a Democratic primary, and Republican votes could not be counted. Ballots not numbered were counted, and the vote in Pittsburgh township should have been cast out.
    Ward township’s vote should have been cast out, and the judges bet on the election. Illegal votes were east by Republicans. 125 Pac. 739; 129 Cal. 337; 61 Pac. 1115; 22 S. D. 146; 115 N. W. 1121; 228 Ill. Ill; 81 N. E. 1109; 40 Ore. 166; 66 Pac. 714; 92 Neb. 313; 43 L. R. A. (N. S.) 2i82. Under the law no candidate should be declared a Democratic nominee where his majority is made up of Republican votes. The court went beyond the pleadings in making its findings. Its departure from the issues was material, and the evidence did not authorize it. 159 S. W. 646. Ballots not numbered were illegal. Kirby’s Digest, § 2811; 69 Ark. 501; Brundidge act, § 9.
    In Stonewall township not all the ballots were signed, and in Pittsburgh Township twenty-two ballots were not signed. In two townships judges of election were forced out by physical or moral suasion and by-standers not electors, or committee, chosen their successors. Kirby’s Digest, §§ 2801-2. The Constitution and laws were ignored and violated, and the law should be upheld.

      Webb Covington, for appellee.
    1. The supporting affidavit was sufficient. 136 Ark. 217; 136 Ark. 221.
    2. The law authorizes the amending of the complaint. Initiative act No. 1, § 12, p. 296; 125 Ark. 561-2.
    The allegations of the complaint were sufficiently broad, and it was the duty of the court to repect all illegal ballots. 32 Ark. 561.
    3. The complaint was subject to amendment. 159 S. W. 646.
    4. No illegal votes were counted. Initiative act No. 1, § 17, p. 2302, Acts 1917. See 26 R. C. L., § 35, p. 1032; 95 Ark. 443; 57 N. J. L. 442; 51 Am. St. 624.

      Courts do not require a voter to disclose for whom he voted. 49 Ark. 238; 53 Id. 172. The act is constitutional. 40 Ore 167; 66 Pae. 714.
    None of the objections made by appellant are fatal. 43 Ark. 62. Illegal votes do not affect the result of an election unless it appears how they were cast.' 54 Ark. 409. The returns are accepted when purged of the illegal votes. 73 Ark. 187. It is immaterial whether illegal votes are received or not if not sufficient to overcome the majoity. 39 Ark. 549. Nothing will justify the exclusion of an entire township vote if the election has been legally held and fairly conducted, unless it renders it impossible to ascertain the majority vote. 124 Ark. 256; 49 Id. 241. There was no error in the Pittsburgh vote, nor in Grant Township, nor in Hill Township. As far as the returns show, no election was held in Hill Township. It.takes poll books and tally sheets to make a prima facie showing of an election. 102 Ark. 651. The returns are shown by the record to be in the handwriting of one man, Tom Holland. The entire ticket is in his handwriting, and there was no certificate of the judges and clerks. This is not such a return as requires appellee to produce any proof whatever. Hill Township vote should have been excluded from the count, and it gave appellant twenty-five votes and appellee one. The evidence in reference to the vote in Ward township fails to disclose' any state of facts calling for a recount, and the court properly overruled the motion.
    It is admitted that probably 500 names were added to the polltax list after the 3d of July, 1920. These poll-tax receipts were illegal, and there were erasures and changes in the record, as shown by the testimony.
    At the general election in November, 1920, the county judge was elected in Johnson .County; and if appellee was elected county judge, the result of this cause can not affect that election.
    There were combinations and numerous violations of law. Acts 1913, act 308, §§ 10-12. There was a combination to defeat tbe will .of the people and deprive them of their choice for county judge. They violated the election laws. It is clear that they did not intend for ap-pellee to receive the nomination and resorted to many illegal methods to defeat him. The court below had the parties before him and heard all the evidence, and the findings are supported by the law and a clear preponderance of the evidence.
   Hart, J.

(after stating the facts). 'By the Initiative Act of 1917, it is provided that all political parties selecting their candidates for office through primary elections shall be subject to the provisions of the act, and that all primary elections for the nomination of county, district, and State offices, shall be held on the same day. Crawford & Moses’ Digest, § 3757.

Another section of the act gives any candidate the right to contest the nomination by an action brought in the circuit court.

It further provides that the complaint ‘ ‘ shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county. Crawford & Moses’ Digest, § 3772.

Montgomery filed with his complaint an affidavit signed by ten persons, the body of which is as follows:

“Comes J. V. Herring, Bafe Stegall, J. J. Lingar, Sam Harris, Dave Timmons, Ewell Love, J. F. Simmons, Jas. M. Lewis, E. E. Gifford, W. B. Cox, S. J. Morgan, and C. H. Love, ten reputable citizens of said county, and State of Arkansas, and state under oath that the statements made in the foregoing complaint are true to the best of their knowledge, information and belief.”

Ferguson filed a motion to dismiss the complaint on account of the insufficiency of this supporting affidavit.

The court overruled tbe motion, and error is assigned to the action of the court in this regard.

"We do not agree with counsel in this contention. In Logan v. Russe-ll, 136 Ark. 217, the court held that under the above section the affidavits of ten reputable citizens need not be separate, but may be combined in one affidavit and made upon the belief of the affiants merely, without setting forth the facts upon which their belief is based.

The court also held that the affidavits are jurisdictional, and that the complant and affidavits must be filed within the time specified.

In the instant case, the affidavits were filed within the time required by the statute, and under the decision just referred to the affidavit was sufficient in form. That is to say, all the affiants signed the same affidavit, and it was not necessary to state the facts upon which their support'of the complaint rests.

But it is insisted that the affidavit is defective because it does not state that the affiants were members of the Democratic party, and that this was necessary under the statute. On the other hand, it is claimed that the statute does not prescribe that the affiants shall be members of the Democratic party. It is true that the statute does not so state in express terms, but we think such is the necessary implication from its language when considered with reference to the declared purpose of the statute.

In Simmons v. Terral, 145 Ark. 585, the court had the section under consideration and held that the word, “citizens,” as used in the section, is synonymous with the word, “electors.” The court said that the known object of the law was to prevent fraud in the exercise of political privileges, and that, inasmuch as these privileges are accorded by the act to electors only, it was clear that the word, “citizens,” as used in the act, was intended to be synonymous with “electors.”

Now the object of primary election statutes is to give the electors of recognized political parties the immediate control in the selection of their own candidates. Therefore, only those who are entitled to participate in the primary were directly interested in the election and could be said to be reputable citizens or electors within the meaning of the statute.

' The intent of the statute was to regulate party nominations by the vote of the electors of the respective parties, and only such electors are entitled to vote in the primaries. The statute provides for primary elections for the recognized political parties, and it was evidently intended that only those might participate in the primaries who belonged to the political faith of the party holding the election. If the framers of the act meant “reputable citizens” to he “electors,” it certainly meant electors who were entitled to vote at the primary election which was to he contested. Otherwise, the members of other political parties might sign the affidavits for the purpose of creating dissension or injuring the political party holding the primary.

It does not follow, however, that the complaint should have been dismissed, because the affidavit filed followed the language of the statute, and, under the decisions cited above;, this was all that was necessary. Of course, if it had been shown by proof that the affiants were not Democrats, this would have been fatal to the complaint under the decisions above cited; and the proceedings should have been dismissed for noncompliance with the statute. In our State the primary is the means of nomination of all officers, State, district and county, and the object of our primary statute was to provide a method whereby the partisan voter could express his choice for his candidate under the protection of the State by means similar in practice to the Australian ballot in use in the general elections. The framers of the act did not contemplate that the members of any other party than the one holding the primary should be permitted to vote in it or to participate in any contest under the provisions of the statute.

It is next insisted that the court erred in permitting Montgomery to amend his complaint. In his original complaint Montgomery alleged that certain illegal votes had been cast for his opponent in certain townships named in his complaint.

In his answer Ferguson alleged that certain illegal votes had been east for Montgomery in certain other townships named in his answer. During the progress of the trial it developed that certain illegal votes were cast for Ferguson in other townships than those named in either the complaint or answer, and Montgomery was allowed to amend his complaint so as to embrace these other townships.

We do not thinlc there was any error in this regard. As just stated, the statute recognizes the use of the political parties by the people, and its object was to enable the members of the recognized political parties to express their choice for a candidate to be nominated by their respective parties by means similar in practice to those used at the general elections.

In Govan v. Jackson, 32 Ark. 553, the court said that the real inquiry in election contests was as to whether the contestant or the respondent received the highest number of'legal votes, and was not confined to the ground specified in the contestant’s notice of contest.

So here the object of the pleadings was to produce a single issue, and that issue was whether or not certain illegal votes of a designated kind had been received at the primary election. The proceeding is entirely statutory. The act contemplates that there shall be a summary trial and disposition of the case to the end that if the contestant is successful lie may be voted for at the general election or, if the contest is not finally determined until after the general election, the term of office or a material part thereof shall not have expired.

It is impossible to state with precision the rule with regard to amendments of the pleadings. Much must be left to the discretion of the court, or the very object of the statute will be defeated. On the one hand, the contestant should not be allowed to make amendments which would necessarily unduly delay the trial of the contest, and on the other hand he should be allowed to make amendments in all cases where no such delay would result and where the amendment was made for the purpose of presenting the issues with due diligence,

As stated in Mann v. Cassidy, 1 Brewster’s Penn. Repts., p. 11, “The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at nought; nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause. ’ ’

There is no provision in the act prohibiting amendments, and there is nothing in the record tending to show that the amendment would have unduly delayed the trial of the case. Therefore, we thinlc that the court did not err in allowing the amendment.

It is next insisted that the court erred in refusing to allow Ferguson to prove that certain Republicans were allowed to vote for Montgomery and in sustaining a demurrer to his answer in which the same fact was alleged.

In this contention we think counsel are correct. Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers. 20 C. J., par. 158, p. 137. The rule as thus laid down was recognized and' applied by this court in Walls v. Brundidge, 109 Ark. 250.

Primary election laws were unknown under the common law. They are purely the creatures of statute, and every provision for contesting such elections is directed by statute. The same object is sought in allowing contests in primary elections as is sought in general elections, and that is to throw out illegal and fraudulent votes. It has been well said that the “contest of an election is- a remedy given to the people by petition for redress, when their suffrages have been thwarted by fraud or mistake.”

The weight of authority and the better reasoning is that the people by the Legislature or through an initiative act may recognize the existence of political parties, and within reasonable limits regulate the means by which partisan voters should be protected in exercising individual preferences for party candidates, which is the general purpose of the primary election law of this State. 20 C. J., par. 110, p. 113; 9 R. C. L., p. 1072, et seq.; State of Minn. v. Moore, 59 L. R. A. (Minn.) 447; State ex rel. Miller v. Flaherty (N. D.), 41 L. R. A. (N. S.) 132; Baer v. Gore, (W. Va.), L. R. A., 1917 B, p. 723; Waples v. Marrast (Tex.), L. R. A. 1917 A, p. 253, and Phillips v. Strassheim. (Ill.), 22 L. R. A. (N. S.) 1135.

It is contended by counsel for Montgomery that the ruling of the circuit court should be upheld because the statute does not prohibit Republicans from voting in a primary election held by the Democratic party.

Under the authorities cited the constituted authorities of the political parties have exclusive jurisdiction as to the regularity of primary elections except as taken away by statute. The Legislature may or may not prescribe tests of the right of voters to vote at- primary elections.

As we have already seen, the act under consideration recognizes organized political parties and provides that all primary elections for the nomination of county, district, and State officers shall be held on the same day. No one could logically assert that the framers of the act intended that any elector without any party belief whatever had the right to participate in said primaries because he might be a qualified elector within the meaning of our Constitution.

The act in question prescribes no tests for party affiliations. Therefore, the duly constituted authorities of the recognized political parties had a right'to prescribe the tests for the voters at the primary elections to be held by such political parties. To hold otherwise would be to destroy the usefulness of the act and to render it unreasonable in its application or practical effect.

As bearing on the question we refer to Rouse v. Thompson, 81 N. E. 1109, where the Supreme Court of Illinois, in discussing statutory regulations for securing fair primary elections, said that if the independent voter or voter affiliating with, an opposition party can vote at the primary election of a party with which he has no political affiliation and thereby control the nomination of a party which he will Vote against at the polls, the freedom of the primary election is destroyed. Again the court said:

“The object of holding a primary election by a political party is to select party candidates, and it is too plain for argument that no voter should be permitted to vote at the primary election of a political party unless he is a member of such party, and unless provision is made to prevent persons voting at a primary election for the candidates of a party who are not affiliated with such party, the whole scheme of nominating party candidates by a primary election would fail, because of being incapable of execution.”

In Logan v. Russell, supra, the court said that the provisions of the statute under consideration should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers.

In McDaniel v. Ashworth, 137 Ark. 280, in an election case, in discussing the interpretation of the statutes, the court said:

“The whole subject was reviewed in the case last cited, and the doctrine was made plain that the duty of the courts in interpretation of statutes was to endeavor to ascertain from the language used the true intention of the lawmakers, and when that intention was- ascertained to disregard everything which was in conflict with that intention, and, if necessary, to omit words or substitute others so as to make the statute harmonize with the manifest will of the lawmakers.”

It is contended that our primary law takes away the right of political parties to prescribe the tests of persons voting at primary elections held by such parties. Reliance is placed upon section 3778 of Crawford & Moses’ Digest. It reads as follows:

“All laws or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall he of no further force or effect. ’ ’

The avowed purpose of this section is to take away from political parties the right to provide rules regulating contests. It has no relation whatever to the tests required of the voters at the primaries held by such parties, and does not purport to deal with that question. This view is borne out by section 3791 of Crawford & Moses’ Digest, which makes it a misdemeanor for a person to vote in the primary of a party which the voter does not adhere to or affiliate with.

It is also insisted that the courts have no right to review the action of the duly constituted authorities of the party in allowing the Republicans to vote.

The act was passed for the purpose of conferring jurisdiction on the courts over contests and this makes the contest proceeding a judicial action, and it is no longer merely a political question to be settled within the party. To hold otherwise would destroy the very purpose of the act, and render it abortive. It is our duty to construe the act to advance the remedy provided by the act, rather than to render it futile or unavailing.

■ This brings us to a consideration of the rules of the Democratic party in force at the time the primary election was held on the 10th day of August, 1920. They provide that none but Democrats shall participate in said election and that a Democrat is defined to be one who supported the nominees of the Democratic party in the preceding general election, or was prevented from attending the election by unavoidable cause. ¶

As we have already seen our primary law recognizes that there are different political parties in this State, and it is a matter of common knowledge that the Democratic and Republican parties are the two great rival parties, not only of this State, but throughout the United States. The word, “Republican,” therefore, has a well-defined meaning and indicates one who affiliates with the Republican party in contradistinction to the Democratic party, or any other political party. If a Republican should quit his own party and join another one, he would no longer be called a Republican. Therefore, when counsel for Ferguson alleged that Republicans had been allowed to vote for Montgomery and offered to prove that fact, they used words which were well understood by the people and which conveyed the meaning that they were not entitled to vote at a Democratic primary election.

But it is insisted that the offer of proof in this respect, was not sufficiently definite. We can not agree with counsel in this contention. We quote from the record the following:

Q. Four name is A. J. Edwards?

A. Yes, sir.

Q. You live in Sprada Township?

A. Yes, sir.

Q. Did you vote in the primary election held on thé 10th day of August?

A. Yes, sir.

Q. Mr. Edwards, what is your politics?

A. Republican. Black too.

Q. Did the judges challenge your vote, Mr. Edwards ?

A. No, sir. Nothing was said to me about it.

The record further shows that the attorneys for Ferguson offered to show that the number of Republicans set out in his answer voted in the primary election and voted for Montgomery. In his answer Ferguson sets out the number of Republicans that were allowed to vote for Montgomery and the townships in which they voted.

The court not only sustained a demurrer to this part of the answer of Ferguson, but refused to allow him to make the proof just referred to. Therefore, we think the offered proof was sufficiently definite and that the court erred in refusing to allow it to be introduced in evidence.

We are also of the opinon that under our primary act Ferguson did not lose his right to object to the Republican votes because he did not challenge the voters at the polls. Such a course would have required him to have kept watchers at each polling precinct, and this would have been too expensive and cumbersome. He might have pursued that -course and have caused the judges to have thrown out these votes. It is sufficient to say that the adoption of such a course bjr him is not required by the statute as a prerequisite to his right to contest the election on that account.

It is insisted that the court erred in not throwing out the votes of Pittsburgh Township and. in not allowing the parties to the contest to prove the number of votes in their favor in that township by parol evidence under the rule announced in Williams v. Buchanan, 86 Ark. 259, and cases cited, where the contest was under the general election law. The face of the returns shows that Montgomery received 183 votes and Ferguson 125 votes, or a majority of 58 votes for the contestee. The record shows that the ballots from his township were not numbered.

Section 3765 of Crawford & Moses’ Digest, provides that the judges and clerks of the election should make a duplicate register of the names of each and all the electors in -the order in which they present their ballots, placing opposite each name its number in the manner prescribed by sections 3797 to 3802 regulating general elections, which provide that every ballot shall be numbered in the order in which it shall be received and the number recorded by the election officers on the list of voters, opposite the name of the elector who presents the ballots. The object is to prevent fraud, and it is the duty of the election judges and clerks to carry out the provisions of the act in primary elections as well as in general elections. When the ballot is numbered in the order in which it is received and the number is recorded on the list of the voters, the number opposite the name of the voter on the list will also appear on the ballot, and thus there is an identification of the ballot voted by each elector. The neglect to perform this duty is an evidence of fraud under the primary election act, but it is not conclusive evidence of fraud, and it does not necessarily follow that for the failure to comply therewith the vote of the entire precinct should be thrown out. Conflicting views have been expressed by the courts as to what circumstances will justify throwing out the entire vote of a township. Such a power necessarily belong’S to whatever court has jurisdiction to pass upon the merits of a contested election case, and it is such a dangerous power that it should be exercised only in an extreme case, that is to say, a ease where it is impossible to ascertain with reasonable certainty the true vote. McCrary on Elections, (4 ed.), section 523 and 20 C. J., par. 346, p. 249.

Section 3765 of the digest regulating primary elections also provides that each ballot shall be signed by the voter at the bottom thereof at a place which shall be •provided for his signature, and that if the voter is unable to subscribe his name the same shall be signed by one of the judges and attested by all of said judges. This provision is also designed to prevent fraud and serves the same purpose as numbering the ballots as prescribed by the statute. Thus the framers of the act designed to establish a double check against fraud. Both provisions should be carried out by the judges and clerks of the primary election.

In the present case it does not appear from the record that the judges and clerks failed to require the voters to sign the ballots, and it does not appear from the record that their failure to number the ballots as required by the statute was the result of fraud. The signature of the voter served to identify the ballots, and under the circumstances disclosed in the record we do not think the court erred in not discarding .the entire vote of the precinct.

Finally, it is insisted that the ouster section of the primary act is void because it is directed solely against the contestee or the defendant in the contest proceeding and brings the act within that class of statutes condemned generally as discriminatory and void. It is also claimed that, if not void, there can be no ouster of Montgomery under the statute because he was elected county judge at the general election in November, 1920, during the pen-dency of this appeal, and that the section does not apply to biro, because be was tbe contestant or plaintiff in tbe case in the court below, and that tbe statute only applies to tbe contestee who is the defendant in the circuit court. Counsel also point to tbe fact that in this court tbe parties are designated by statute as appellant and appellee and that Ferguson is tbe appellant here. Tbe section in question is 3776 of Crawford & Moses’ Digest, and reads as follows:

“ Should a proceeding under §§ 3772-3773, or a criminal prosecution under § 3774, be not determined finally until after tbe election, and tbe defendant in such proceeding is elected to tbe office as tbe nominee of tbe party, and it is determined that be was not entitled to, tbe nomination, or tbe judgment contains a finding that be violated the laws, as provided in § 3774, then such judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation. ’ ’

We think that the word “defendant” as used in tbe section was not intended to be used in its strictly technical sense, but that it should be given a broader interpretation so as to carry out the act instead of destroying or crippling its usefulness. This court has already declared that tbe act “should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers.” o

Again in McDaniel v. Ashworth, supra, in construing an act providing for the election of directors for tbe St. Francis Levee District, tbe court said that it was “tbe plain duty of the court, in tbe construction of statutes, to arrive at tbe legislative will and to sweep aside all obstacles in the way of accomplishing it.” When we consider tbe object and purposes of tbe statute, it is plain' that tbe word, “defendant” was used to denote tbe party who defends tbe suit when it was finally determined whether it was in tbe circuit court or in this court.

Tbe section provides in brief that, should a contest proceeding or a criminal prosecution be not finally determined until after the general election, and tbe defendant in the proceeding is elected as the nominee of the party, and it is determined that he was not entitled to the nomination, or that he violated the law, then snch judgment should operate as an ouster from office. The object was to prevent one illegally nominated and thereby securing an election at the general election from holding the office during the term provided by law or a material portion thereof, and thereby rendering abortive the contest proceeding.

In Duntan v. McCook, 94 N. W. 942, the Supreme Court of Iowa had under consideration a statute as follows:

“A defendant against whom a judgment has been rendered, or any person interested therein, having matter of discharge which has arisen since the judgment, may upon motion, in a summary way, have the same discharged, either in whole or in part, according to the circumstances, ” and it was there contended that the word “defendant” was used in its strict technical sense. But the court held that the word might refer to the plaintiff as well as the defendant, and said:

“By ‘defendant’ is meant the party against whom the judgment or decree has been entered, and not necessarily the defendant in the suit; and the term ‘judgment’ is employed in the statutory sense, being any ‘final adjudication of the rights of the parties in an action.’ ”

In Thayer, Petitioner, 11 R. I., p. 160, Amy Thayer sought to be discharged from imprisonment on an execution for costs awarded against her in an action of trover in which she was plaintiff and Mary M. Thayer was defendant. The court had under consideration the construction of a statute providing for an execution against the body, which was served by arresting Amy Thayer, the plaintiff, and said that “no reason occurs to us why plaintiff, whatever be the nature of the action, against whom judgment has been rendered for costs should be dealt with differently than if the judgment were for a debt.” We quote from the opinion the following:

"It will be perceived, by reference to the section mentioned, that no provision in terms is made for an execution against the body of a plaintiff, but only for an execution against the body of a defendant. The respondent’s counsel suggests that the word ‘defendant’ should be construed to mean the defendant in execution, and not merely the defendant in suit, and, therefore, to include a plaintiff against whom a judgment has been obtained by a defendant. We think the section susceptible of this construction, and are led to adopt it, because there is no other authority for an execution against the body of a plaintiff; and we can not suppose that the General Assembly did not intend to give a defendant, who has recovered judgment for costs, or for a balance due him upon a plea in set-off against a plaintiff, the same process to compel the payment of his costs or debt which the plaintiff, if successful, wou-ld have had against the defendant.”

For the error in refusing to admit the testimony with regard to the Republican votes alleged to have been cast for Montgomery, the judgment will be reversed and the cause remanded for a new -trial.

McCulloch, O. J.

(dissenting). My dissent is based on the ground that the majority have given an erroneous interpretation of what is termed the ouster provision (Crawford & Moses’ Digest, § 3776) and that the appeal should be dismissed for the reason that the statute does not authorize the ouster of appellee from the office to which he was elected.

The statute provides, in substance, that if the contest over a nomination, or a criminal prosecution for corrupt practices in the election, be not finally determined until after the general election “and the defendant in the proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, or the judgment contains a finding that 'he violated the laws, * * * then such judgment shall operate as an ouster from office, and the vacancy shall be filled as provided by law.”

Now, I readily concede that, if it can be seen from a reasonable interpretation of tbe statute tbat its framers really meant to provide for ouster under tbe state of facts existing, as in tbe present case, tbe court would be justified in discarding’ the precise word or words used or in disregarding tbe literal meaning of particular words used, so as to give effect to tbe obvious meaning of tbe framers of tbe statute. But tbe language used does not indicate, with any reasonable degree of certainty, tbat it was meant to provide for an ouster in any instance except where tbe defendant in tbe contest — the contestee— has been elected to tbe office as tbe party nominee and afterward loses tbe nomination by tbe final judgment of tbe court. Nor could the language be changed so as to make a provision to fit tbe present case by a mere substitution of some other word for tbe word “defendant” used in tbe statute. Tbe appellee was not, and is not, in any sense a defendant in tbe contest, and in order to provide for an ouster after bis election to office it would have to be expressed in language sufficient to declare tbat any party to tbe contest who, before tbe final determination of the contest, is elected to office, shall be ousted if tbe final decision be against him. Tbe word “defendant,” as used in tbe statute, means what its ordinary definition implies. It does not include a plaintiff in an action who is tbe appellee on appeal of the cause to a higher court. Such meaning can not reasonably be attributed to tbe uses of tbe word “defendant,” for tbe ouster statute applies also to a “defendant” in a criminal prosecution, and one who appeals from a judgment of conviction would not be a defendant within tbe meaning of tbe statute as now interpreted by tbe majority, who'bold tbat tbe appellee on tbe appeal is tbe “defendant” within tbe meaning of this statute.

In order to see what was in tbe minds of tbe framers of this section of tbe statute, it should be considered in connection with tbe preceding section, and when tbe two sections are thus considered it becomes clear, I think, tbat the framers of the statute used the words “successful candidate” in one section and “defendant” in the other, synonymously as referring to the candidate who has been successful in the primary election, and they do not refer to a plaintiff or contestant in an action who is adjudged to be the rightful nominee.

This is merely a failure on the part of the framers .of the statute to provide for such a contingency as is presented in the present case. However desirable it may appear that such a contingency should be provided for, the courts are not authorized to supply the omission.

It is not essential to the validity of this feature of the statute that it should be held to be applicable to an appellee. The lawmakers had the power to create the remedy and prescribe its terms and extent. A contestant for office can not complain if he finds himself without a remedy under given circumstances. The statute does not discriminate against individuals or classes. It merely provides that, if a contestee is elected to office, he must give up the office if he finally loses the contest. The fact that the statute does not provide, reciprocally, that the contestant must also give up the office if he finally loses the contest does not render the statute void.

Such being my interpretation of the statute, I think that the appeal of appellant shold be dismissed for the reason that the election of appellee has brought the contest to an end, and the decision of this court as to the correctness of the rulings of the trial court, involves moot questions.

I am also unable to agree with the majority in the interpretation of the section of the statute (§ 3772) in regard to the supporting affidavits. The statute does not require that the affidavits must be made by citizens or electors of any particular party, nor that they must have voted in the primary. If they are electors of the county, they are qualified.

Neither do I agree to that part of the opinion holding that the complaint can be amended to embrace charges of fraud in other townships. The proceeding is purely statutory, and is not a civil action within the meaning of our statute on amendments to pleadings. Davis v. Moon, 70 Ark. 240. The affidavits of ten citizens must, under this statute, support the charges in the complaint which can not, after the expiration of the time specified for filing it, he amended to embrace other charges. Russell v. Logan, 136 Ark. 217.

I agree with the majority that the trial court erred in its ruling concerning the right of either party to the contest to purge the ballot of the votes of persons who were not members of the Democratic party. ¡But for the fact that the right to prosecute an appeal has passed away by the election of appellee to the office, this erroneous ruling of the court would call for a reversal.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Linney v. E. C. Linney & Company.
    Opinion delivered March 28, 1921.
    1. Courts — JURISDICTION op suit by nonresident. — A nonresident may bring an action in a State court, even though he might have brought suit originally in the Federal court, and it was not error to refuse his motion to dismiss for the want of jurisdiction.
    2, Appeal and error — insufficiency of abstract. — Where the pleadings were not specifically abstracted to enable the Supreme Court to know upon what allegations plaintiff expected relief, or what relief he expected, the abstract was insufficient under rule 9, and the appeal should be dismissed.
    Appeal from Pulaski Chancery Court; J. E. Mar-tineau, Chancellor;
    appeal dismissed.

      Oscar H. Winn, for appellant.
    1. The chancellor had no jurisdiction to try the case and this court has none. Appellant can not waive jurisdiction of the Federal court nor surrender it over a controversy between citizens of different- States, nor over a controversy involving the use and infringement of a trademark.

      2.It is clearly shown that the questions involved were Federal questions. A reference to the law is sufficient. The court erred in refusing to dismiss the action. Section 8, p. 11, Judicial Code (2 ed.), Long’s Federal Courts. See, also, lb., %% 256, 16-17-18-19-20. There was nothing before the court but a Federal question, and the court below had no jurisdiction, and the judgment should be reversed and dismissed or transferred to the Federal court.

      Carmichael & Broohs, for appellees.
    1. This case should be affirmed under rule 9, as there is no sufficient abstract.
    2. If there was, there was no motion to transfer to the Federal court. The motion to remove was not within time allowed by law for removal to the Federal court.
    3. The case did not involve, except incidentally, the right to a trademark or formula, but was a case dealing with the formation, organization and conduct of a corporation.
    4. No Federal question was involved.
    5. Only defendants can remove.
    6. If there was any merit in the motion to remove, the record must show that the lower court acted on it in some way.
    Really there is nothing before the court, and the appeal should be dismissed.
   Smith, J.

Appellant was the plaintiff below, and in the brief on his appeal to this court has this to say of his pleadings :

“As shown in the transcript at pages 12 to 22, plaintiff having no funds with which'to publish the complaint, the amendment and supplemental complaint, and appellant’s only opportunity to present same to the court is to ask the reading by the judge, the transcript as follows r pages 1 to 22, inclusive, and pages 32 to 37, inclusive, and pages 43 and 44. ’ ’

After this statement there follows next in order what appears to be a “Motion to Dismiss for Want of Jurisdiction,” which, was filed by appellant in the court below. This motion appears to have been copied in full and reads as follows:

‘ ‘ Since it was shown in the testimony, and since the plaintiff is a citizen of the State of Tennessee, and since he has not any desire or inclination or intention to change his fifteen years’ residence and citizenship in the State of Tennessee, plaintiff requests that this cause and suit be dismissed, or that same he permitted to be removed to the United States District Court upon the proper application being filed either in this court or the Federal Court. ’ ’

Thereafter follows an abstract of a demurrer and an answer and a cross-complaint filed by appellee. The brief contains no abstract of the decree, but it appears from the argument made that the court refused to dismiss the cause for want of jurisdiction. In the argument which appellant makes in his brief he says that there was involved the question of the use and infringement of a trademark, of which only the Federal court would have jurisdiction. *

The pleadings have not been sufficiently abstracted for us to know upon what allegations appellant expects relief nor, indeed, what relief he expects.

His motion to dismiss recites, as a ground therefor', the diverse citizenship of the litigants. But appellant was himself the plaintiff, and the courts of this State are open to him, although, on account of his residence in another State, he might have brought the suit in the first instance in the Federal court.

There has been no substantial compliance with rule 9 of this court requiring an abstract of the record in the case, and for this reason the appeal must be dismissed. It is so ordered.


text:
    Coplen v. Texarkana Tire House.
    Opinion delivered March 28, 1921.
    1. Appeal and error — order directing verdict. — On appeal from an order directing a verdict, the highest probative value will be given to the testimony opposed to that action.
    2. Sales — burden op proof. — A vendor selling automobile tires has the burden of proving an agreement, express or implied, to pay for such tires.
    3. Sales — direction of verdict. — In an action for the purchase price of automobile tires, it was error to direct a verdict for the plaintiff where under the evidence it was a question whether the tires were sold to defendant or to another, and also whether the tire company had ratified an agreement by its agent to replace defendant’s old tires with new ones free of charge.
    Appeal from Miller Circuit Court; George B. Hay-nie, Judg’e;
    reversed.

      E. M. Barney, for appellant.
    1. It was error to direct a verdict, as there was some evidence to sustain the issue in favor of appellant. The rule is to take that view of the evidence most favorable to the party against whom "the verdict is directed. 135 Ark. 542.
    2. Where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. 89 Ark. 368; 103 Id. 401.
    3. The theory of defendant is established by the evidence. Fraud avoids a contract ab initio at law and in equity. 22 Ark. 517; 13 S. W. 935. There was fraud in the delivery of the tires, and appellee had no right to sue, even on a quantum meruit. The case should have been submitted to a jury.

      Pratt P. Bacon and A. S. Gibson, for appellee.
    The case was tided below, and the court directed a verdict upon the theory that the burden was on the appellant to prove that the unknown representative was the agent of the Firestone Rubber Company and that he had the authority to make adjustments of the kind in question. Where a case is tried in tlie lower court upon a definite theory, it can not, fox the first time on appeal, he contended that it should have been tried on a different theory. 64 Ark. 257; 83 Id. 382; 101 Id. 101; 109 Id. 527. In the light of the above authorities, appellant’s argument that the Texarkana Tire House extended credit to N. H. "Williamson is futile.
    One who deals with an agent is put upon notice of the limitations of his authority and must ascertain what that authority is, and, if he fails- to do so, he deals with the agent at his peril. 105 Ark. Ill; 117 Id,. 173; 140 Id. 306. See also appellant’s requested instruction No. 7.
    There is not a word of proof in the record as to the authority of the representative of the Firestone Rubber Company, or whether he was such a representative of said company, and all the proof in the record as to the authority of the tire house representative is that introduced by appellee, which shows that the tire house man did not have the authority to make such an agreement as that claimed by appellant. Neither is there any evidence tending to show that appellee was in any sense the agent of the Firestone Rubber Company. Appellant was dealing with an alleged unnamed agent of the Firestone Rubber Company and with an agent of appellee. It was appellant’s duty to ascertain the authority of both of said agents, and if he failed to do so he dealt with them at his peril. The burden was on appellant to prove the agency and the authority of the agents, and, on his failure to discharge this burden, the court could do nothing except instruct a verdict against him. The judgment is right and -should be affirmed.
   Smith, J.

The Texarkana Tire House, a Texas corporation, sued and recovered judgment against appellant for $329.82, the sales price of two solid tires 36x12. The verdict was returned under the direction of the court.

The testimony on the part of plaintiff showed an ordinary sale and a failure to pay; but, as the verdict was directed by the court, we must give to the testimony opposed to that action its highest probative value....

The testimony on appellant’s behalf was to the following effect. Appellant bought a truck from a dealer named Williamson, who guaranteed the tires thereon. The tires were manufactured by the Firestone Company, which had a branch office in Dallas, Texas. Appellant used the truck for a short time, when the tires began to crumble and gave way. Appellant reported the fact to Williamson, who took the matter up with a representative of the Firestone Company. An appointment was made to meet this representative at the office of appellee. Appellee was the distributing agent for the Firestone Company in the Texarkana territory. The representative of the Firestone Company examined the tires at ap-pellee’s office, saw they were defective, and stated that the rubber had been cooked too long, and directed a Mr. Villars, the assistant manager of appellee, who was present and saw the examination, to order a new pair of tires and to do so without Charge. According to appellant, he took no part in these negotiations. All the negotiations were between Williamson, Villars, and the Firestone Company’s reputed representative, and appellant supposed the investigation of the tires and the subsequent conversations in regard thereto all related to Williamson’s warranty, the existence of a breach of it, and the manner of making' the warranty good. Appellant did not order any new tires, none were ordered for him, and the whole transaction, as he understood it, was between Williamson, who had sold him the tires and had guaranteed them, and the agent of appellee and the representative of the Firestone Tire Company. Williamson fully corroborated appellant.

Appellant testified that the tires on the truck were 36x10, and after the Firestone Company’s representative gave orders to Villars to replace the tires without charge, appellant stated that he would prefer'tires '36x12, and asked if he could be allowed to pay the'difference in the cost and get a 12-inch • tire instead. ' This was assented to, and appellant understood lie would only be expected to pay the difference, amounting to $40, and that be has since been ready, and is now willing, to pay that difference. Later appellee notified appellant that the new tires had arrived. The truck was carried to appellee’s place of business, where the old tires were removed and the new tires were placed on the truck. Appellee took charge of the old tires, and has them yet, so far as appellant is advised. Nothing was said at the time about paying for the new tires, and appellant left the old ones with appel-lee, thinking they were no longer his property.

On the part of the appellee, testimony was offered to the effect that it was a mere selling agent for the Firestone Company, that it had no authority to guarantee tires, or to make guarantees good, on selling Firestone tires, and that it had paid for the tires purchased for appellant’s truck. Villars contradicted appellant and Williamson as to what was said and done when the tires were ordered; but we must, of course, assume, in view of the record in the case, that this conflict in the testimony would have been resolved by the jury in appellant’s favor.

The testimony did not show the authority of the reputed representative of the Firestone Company to make the adjustment claimed, and Villars disclaimed any authority on his part to bind appellee to any agreement in regard to replacing tires; and the action of the court in directing the verdict is defended because of the absence of this showing of authority on the part of Villars, or the reputed representative of the Firestone Company.

We think a case was made for the jury. It will be observed that this is not a suit against appellee wherein it is sought to charge appellee with. responsibility and liability for the act of an agent. Appellee brought the suit, and, to recover, must show an agreement, either express or implied, oil appellant’s part to pay for the tires.

Under the testimony set Out above, the jury might have found that the sale was to Williamson, and not to appellant, and that appellant’s only obligation was to pay the difference between the price of a ten and a twelve-inch tire. Moreover, the jury might have found, if the testimony set out above had been accepted as true, that Villars, under the direction of the reputed representative of the Firestone Company, had agreed to replace the tires without charge in fulfillment of Williamson’s guaranty, and that appellant accepted the tires under this belief. .Appellant might not have been willing to accept another pair of Firestone tires if he had known he would be expected to pay for them.

Under this view of the testimony, it is not a question of the authority either of Villars to bind appellee or of the authority of the reputed representative of the Firestone Company tb bind that company. Villars was in fact an agent of appellee and professedly was acting for it. Appellee apparently ratified what Villars did, and, so far as appellant knew, appellee had done so. If appel-lee was unwilling to-be bound by the act of its own agent, or to rely upon its agent’s statement as to what the trade was, then some other agent or representative of appellee higher in authority than Villars should have confirmed the terms of the contract before apparently complying with it. Section 1723 of Mechem on Agency (2 ed.).

Both these defenses should have been submitted to the jury with directions to find for appellant if either defense was established by the testimony.

The judgment, is therefore reversed, and the cause remanded for a new trial.


text:
    Matthews v. Brown.
    Opinion delivered March 28, 1921.
    Estoppel — misleading conduct. — Where a lessee of a minor’s land induced the guardian to sell the land, and posted notices of the sale, and bid for the land at the guardian’s sale, without stating that he had a lease on the land, he will he estopped, after a sale of the land to the highest bidder, to assert the existence and validity of his lease.
    Appeal from Perry Chancery Court; Jorclan Sellers, Chancellor;
    reversed.

      J. JET. Bowen and Mehaffy, Donham & Mehaffy, for appellant.
    Appellee, by Ms conduct, is estopped from questioning tbe validity of the guardian’s sale. 10 R. O. L. 694. He had full knowledge of all the facts and is estopped. 10 R. C. L. 762, 781; 2 Pom., Eq. Jur. (4 ed.), § 802. Ap-pellee’s lease, if he has one, is unenforceable. C. & M. Dig., §§ 5031-36. If he had a valid case, he is estopped from setting it up.

      Sellers & Sellers, for appellee.
    1. The pretended guardian’s sale was absolutely void. 123 Ark. 396-7; 135 Icl. 551; 130 Id. 21. The court never acquired jurisdiction, as the petition did not set out that there were no debts, nor did the order of court, and no bond was filed by the guardian. C & M. Dig., § 5046; 85 Ark. 556; 89 Id. 284. This is not a collateral attack upon the validity of a pretended guardian’s sale.
    2. There is no estoppel. The citations from 10 R. C. L. are not in point. If there is estoppel the doctrine applies to appellant, and there is nothing in appellant’s contention of estoppel.
   Smith, J.

Appellant bought the lands here sued for at a guardian’s sale, and, after paying the amount of his bid and receiving a deed, he brought this suit to recover the possession of the land from appellee, who was the tenant in possession at the time of the sale: The lands had been owned by M. G-. Smyers, and upon his death a part thereof were set aside to his widow as dower, and the remainder thereof to the widow and minor children as homestead. The widow leased the land to appellee for a year, and upon the expiration of that lease renewed it for a term of five years. The widow was the guardian of the minor children.

Appellee conceived the idea of buying the land, and opened negotiations with the widow and guardian on the subject. He agreed to pay $5,000 if the lands were sold. This offer appeared to be satisfactory, as the widow desired to reinvest in a farm in Texas. Appellee employed John L. Hill, an attorney, to obtain the necessary orders of court, and paid the attorney’s fee therefor, although he was later reimbursed out of the proceeds of the sale.

Appellee was the moving party throughout, and posted the notices of the sale. He was present on the day of the sale, and pursuant to his agreement so to do made a bid of $5,000. It does not appear what intervening bids were made, but appellant bid $6,500, and the lands were struck off to him at that price, and he received the guardian’s deed. The widow also executed an individual quitclaim deed.

Appellant bases his demand for the possession of the land on these two deeds; while appellee contends the sale was made subject to his lease, and further that the guardian’s sale was void for numerous reasons. Appellant defends the guardian’s sale, and attacks the validity of ap-pellee’s lease. In addition, appellant says appellee, by his conduct, has estopped himself to question the validity of the guardian’s sale.

We have concluded this last stated contention is well taken, and, as it appears decisive of the case, we do not decide the other questions presented.

In addition to the testimony set out above, it was shown that during the negotiations between appellee and the guardian, and prior to the guardian’s sale, appellee was offered $500 to surrender and cancel his lease, but after consideration of the offer he declined to accept it. These facts were not known to appellant prior to the sale.

Mr. Hill testified that he knew by hearsay that ap-pellee had a lease, but he had never had any conversation with him about the lease before the sale. He knew the guardian had no thought of the lease getting in the way of the sale, and that the order of sale probably never would'have been'applied for but for appellee’s suggestion. He testified that, when the order of sale was procured, nothing was said about the sale being made sub-jéct to the lease.

Appellee testified that at the beginning of the movement to sell the land he expected to become the purchaser, and that he had an agreement with the guardian and those interested to pay $5,000, and that he considered his lease as a part of the purchase price which he would have to pay. He also testified that under his lease he had made valuable improvements which he wonld not otherwise have made.

There was no order of the probate court directing the guardian to make the lease, or approving it, and appellant testified that he examined the official records before purchasing, and found no reference to the lease. That the orders of the court regarding the sale contained no reference to the lease, and the notices of sale were likewise silent on the subject, and that he had no information that appellee claimed a lease until about two minutes before the sale. That Mr. Hill, who had charge of the proceedings, represented the guardian in crying the sale, and stated at the time of the sale that he understood appellee had a lease or claimed to hold a lease. Appel-lee was present and made no statement himself but became a bidder at the sale.

The court below found that the sale was ordered by •the probate court of Perry County, and had been held in the manner and form as prescribed by law, and that at the sale appellant became the purchaser, but subject to the lease of appellee, and that appellee was entitled to the possession of the land until the expiration of the lease on January 1, 1923.

We think appellee is estopped. There was no authority to sell the land except under the order of the court, and it is the policy of the law that lands thus sold shall bring the highest price obtainable. To that end bidding should be open and on a common basis. Appellant had made an examination of the record to satisfy himself about the sale which was about to be made. Other bidders — if there were such — may have taken the same precaution. Appellee had procured this sale to be ordered by the court, and appellant testified that he understood appellee had himself posted the notices of sale. A copy of this notice was offered in evidence, and there was nothing in it to indicate that an incumbered title would be sold or that possession of the land would not be obtained by the purchaser. Appellee admitted posting the notices, and he must, of course, be charged with knowledge of the fact that the purpose of the notice was to invite competition. The notice required approved security of the purchaser, and appellant had evidently made his arrangement to comply with this requirement. So, no doubt, had other bidders. Appellee furnished no corroboration or explanation of the auctioneer’s statement in regard to the lease, or the period of its duration, and the bidding proceeded. If appellee had made a statement, which had deterred others from bidding, his bid of $5,000 would have been the only bid; whereas the sum of $6,500 was actually bid and paid for the land. Who can know what action the court might have taken in confirming the sale if a showing had been made that, after being instrumental in having the order of sale procured, appellee had suppressed bidding by asserting the existence of his lease?

We think appellee’s attitude toward this sale is such that it would be inequitable to permit him now to assert, the existence and validity of his lease. Rorer on Judicial Sales, § 443; Epley v. Witherow, 7 Watts (Penn.), 163; 10 R. C. L., pp. 694 and 781; Pomeroy’s Eq. Jur. (4 ed.), vol. 2, § 802; Pabst v. Ferch, 147 N. W. 714; Connor v. Abbott, 35 Ark. 376; Trapnall v. Burton, 24 Ark. 399; Danley v. Rector, 10 Ark. 211; Shall v. Biscoe, 18 Ark. 142; Smith v. Murphy, 141 Ark. 410.

The decree of the court below is, therefore, reversed and the cause will be remanded with directions to the court below to award appellant possession of the land.


author: Humphreys, J.

text:
    Sloan v. Butler.
    Opinion delivered March 28, 1921.
    Tkover and conversion. — One whose property has been unlawfully converted may recover its value from the tort-feasor, regardless. of an opportunity to recover possession of the property from another.
    Appeal from Crawford Circuit Court; Jas. Cochran, Judge;
    reversed.

      Starbird & Starbird, for appellant.
    The court erred in both instructions, Nos. 1 and 3... The theory of defendant was, and the court sustained him in that theory, that if afterward plaintiff, even after suit was brought, had an opportunity to recover his mule and did not do so but still pursued the defendant, he lost his action by his own negligence. But this is not the law. The proposition is well settled that defendant, having once converted the property, is liable for his conversion, regardless of the owner’s opportunity to otherwise save himself. 28 Cyc. 2060; 29 Ark. 365; 37 Id. 32; 39 Id. 387; i89 Id. 342. The errors were misleading and • prejudicial.
   Humphreys, J.

Appellant instituted suit against appellee before a justice of the peace in Crawford County, Arkansas, to recover $50 on account of the .alleged unlawful conversion by appellee of a mule belonging to appellant.

Appellee denied that he unlawfully converted the mule, and the trial upon this issue resulted in a judgment in favor of appellee, from which appellant prosecuted an appeal to the circuit court of said county.

In the circuit court the cause was submitted to a jury upon the pleadings, evidence and instructions of the court with like result. An appeal from the circuit court judgment has been duly prosecuted to this court.

The record disclosed that the mule in question was owned by appellant; that its maximum value was $50; that it escaped from his pasture and wandered away.

There was evidence tending to show that appellee later found the mule trespassing upon his land, took it up, and, without complying with the estray laws, sold or gave it to Everett Riddle. There was also evidence tending to show that Everett Riddle himself took the mule up without the assistance of appellee, and retained possession thereof.

Appellant testified that he made no effort to recover the possession of the mule from Riddle because he had already instituted suit against appellee for converting it.

Over the objection and exception of appellant, the court sent the case to the jury upon the theory that he had no right to recover damages from appellee for the unlawful conversion of his mule if he could have recovered the mule from Everett Riddle and failed to do so. One whose property has been unlawfully converted may recover'its value from the tort-feasor, regardless of an opportunity to recover the possession of the property. Norman v. Rogers, 29 Ark. 365; Warner v. Capps, 37 Ark. 32; 38 Cyc. 2060.

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


text:
    Missouri Pacific Railroad Company v. Reed.
    Opinion delivered March 28, 1921.
    CARRIERS — LOSS OP SHIPMENT — PRESENTATION OP CLAIM. — Under a bill of lading providing that, in case of loss or failure to deliver after a reasonable time, the consignee, in order to recover the valup of the goods, should file a claim in writing therefor with the carrier within six months thereafter, held. that the consignee should present his written claim within six months after shipment, and not within six months after definitely ascertaining that it had been made, unless the carrier either concealed the shipment from the consignee or refused to issue a duplicate bill of lading upon request, in which case the six months’ period would date from the . time the shipment was disclosed to consignee.
    Appeal from Crawford Circuit Court; Jas. Cochran, Judge;
    reversed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    The verdict should have been directed for defendant, on either of two grounds, (1) because the claim was not filed within six months, and (2) because there was no proof that these extracts had ever been delivered to the railway compay for shipment. The following cases settle the question in favor of defendants. 101 Ark. 310; 111 Id. 102. There are other errors in the record, but appellants were entitled to a directed verdict.

      J. E. London, for appellee.
    We are protected by the limitation set out in the bill of lading as to he time of filiing the claim. It was not too late. No man can take advantage of his own wrong to the injury of another. Tested by this rule, the appellant is liable. Appellee used due diligence in trying to discover the true facts. The cases cited by appellant have no application here. Immediately the ap-pellee discovered that the goods were lost, he filed his complaint and complied with our statute. This was a question of fact, and the court’s instruction submits every question that was material to the jury. Having found for the plaintiff under this instruction, the matter is final. There was legally sufficient evidence to sustain the' verdict and it should not be disturbed. 117 Ark. 71; 15. 223; 113 Id. 400; 107 Id. 158; 92 Id. 120, 586. There was no error of law, and the verdict is sustained by a clear preponderance of the testimony. 119 Ark. 518. Where appellant has suppressed evidence, he can not be heard to complain that he did not get the benefit of it. 113 Ark. 82.
   Humphreys, J.

Appellee brought suit against appellant before a justice of the peace in Crawford County to recover $44.25 on account of the loss or failure to deliver a shipment of flavoring extracts by D; H. Kyle from Atkins, Arkansas, to appellee at Alma, Arkansas, over appellant’s railway between said points. A duplicate bill of lading issued by appellant' to the consignor, D. H. Kyle, of date Marcli 1, 1918, describing ‘£ one box of drugs, ’ ’ was attached to the itemized account filed before the justice of the peace and made the basis of the suit. The bill of lading provided that, in case of loss or failure to deliver the shipment after a reasonable time for delivery, the consignee, in order to recover the value of the goods, should file a claim in writing therefor with appellant within six months thereafter. Appellant defended upon the grounds, first, that appellee failed to file a written claim for the value of the goods within the time provided in the bill of lading; second, that the goods described in the bill of lading were of different kind and character from those specified in the .account filed with the magistrate.

The record reflected that appellee was the general manager for the Red Ball Chemical Company, and D. H. Kyle one of his agents; that he had shipped the extracts to D. IT. Kyle with the understanding that he might return them in case he did not sell them and receive a credit on his account; that he requested his salesman, Kyle, to pay for the extracts, and was informed that he had returned them; that the shipment did not reach him, whereupon he wrote his salesman time and again for a bill of lading or a duplicate bill of lading so that he might trace the shipment; that his salesman replied that he did not have the original bill of lading and could get no duplicate; that he instituted suit at Atkins against his salesman for the value of the extracts; that, when he went to Atkins to attend the trial, Kyle insisted that he had shipped the extracts to him; they then called on the agent and obtained the duplicate bill of lading made the basis of the suit; that, after obtaining it, he dismissed the suit against Kyle, and, upon his return to Alma in January, 1919, presented a claim for the value of the extracts to appellants; that he had no personal knowledge as to whether the box of drugs described in the bill of lading contained the extracts itemized in the account filed in the magistrate’s court.

At the conclusion of the evidence, appellant requested the court to direct a verdict in its favor, which the court refused to do, and, over the objection of appellant, submitted the cause to the jury upon the theory that appellee had six months, under the terms of the bill of lading, after definitely ascertaining that the shipment had been made, to present his claim for the loss of the goods or for failure to deliver same. The court’s interpretation of the contract, as reflected by the instructions given to the jury, was incorrect. In the light of the record, it was appellee’s duty to have presented his written claim for the value of the goods within six months after the shipment was made. The original bill of lading was issued and delivered to the consignor, D. H. Kyle, who was the agent and salesman for appellee. No duty rested upon appellant to furnish appellee with a duplicate bill of lading unless appellee had requested or demanded that they do so. 'Counsel for appellee contend that the record reflects that such request or demand was made, and that the agent of appellants refused to furnish a duplicate bill of lading in order to conceal the loss of the extracts en route. We find nothing in the record to support such contention. On the contrary, the evidence reflects that, when appellee called upon the agent at Atkins, in company with D. H. Kyle, the agent produced the bill of lading showing that “one box of drugs” had been shipped on March 1, 1918, and furnished a duplicate of such bill of lading to Kyle, who turned it over to appellee. Of course, if appellant, through its agent, had concealed the shipment from appellee or had refused to issue appellee a duplicate bill of lading upon request, the six months’ period within which appellee might present a claim, under the terms of the bill of lading, would necessarily date from the time the shipment was disclosed to the consignee. As stated above, the facts do not show or warrant an inference that appellant denied or concealed the shipment; hence the court erred in refusing to direct a verdict upon the record for appellant.

For the error indicated, the judgment is reversed and the' cause dismissed.


text:
    Newport Levee District v. Price.
    Opinion delivered March 28, 1921.
    1. Eminent domain — evidence op sentimental value. — In an action aginst a levee district for damages for land taken for right-of-way, it was error to admit evidence tending to establish a sentimental value of the property taken on account of being bought and improved for a home.
    2. Appeal and eeeoe — haemless eeeoe.' — The error of admitting evidence tending to establish a sentimental value of property taken by a levee district for its right-of-way was not prejudicial where it was, in effect, eliminated by an instruction given by the court upon the measure of damages.
    3. Eminent domain — evidence.—In an action by the owner of land taken by' a levee district for levee purposes, where plaintiff testified that he paid a certain amount for the entire tract of land, it was error not to permit the levee district to show when plaintiff purchased the land.
    4.- Appeal and eeeoe- — haemless eeeoe — exclusion op evidence.— In a suit against a levee district to recover damages for appropriation of a strip of land under the right of eminent domain, error of the court in refusing to allow the district to show when plaintiff purchased the land at a designated price was harmless where it was clearly inferable from the testimony that the land was purchased about three years previously.
    5. Eminent domain- — damages poe appeopeiation op land. — The measure of damages for land appropriated for levee purposes, is the difference between the value of the whole land before the' taking and the value of the remainder after the taking; and in a landowner’s action for damages for right-of-way taken it was not error to refuse to permit the levee district to show the market value of a barn appropriated, as distinct from the land.
    6. Eminent domain — damages caused by independent conteactoe. —A levee district, authorized to appropriate private premises for levee purposes, can not escape liability for injuries to a house moved by an independent contractor, upon the ground that the contractor assumed all obligations for damages resulting on account thereof.

      Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      John W. & Joseph M. Stay ton, for appellants.
    1. It is clear, from the evidence, that the property possessed a sentimental value in the eyes of the appel-lee. He testified that he did not want to sell it at all; that he bought it for his home and his own use. The court erred in permitting such evidence to he considered by the jury, as it was highly prejudicial to the rights of appellants.
    2. It was error to refuse to permit appellants to show what appellee had paid for the whole ten acres originally, a part of which was taken by appellants. It was error to exclude such eveidence, as it was pertinent and comepetent for a jury to consider. 42 Ark. 265..
    3. It was error to refuse to permit appellee to'be interrogated as to his idea of the fair market value of the barn located on the land at the time it was taken. 88 Ark. 129.
    4. It was plainly error for the court to refuse to give instruction No. 1 asked by appellants. Sea was an independent contractor; he was liable and not appellants. Ill Ark. 94; 212 U. S. 215.

      Gustave Jones and G. A. ILillhouse, for appellee.
    The verdict in view of the testimony is not excessive. Appellee had built him a home, well improved, comfortable and convenient. No evidence of passion or'prejudice appears in the record, or that the jury was unduly influenced. The evidence sustains the verdict, and there is no error of law. The cases cited by appellant were entirely different from this.
   Humphreys, J.

Appellee instituted suit against appellant in the Jackson Circuit Court for damages for the sum of $2,500 on account of appropriating, under the right of eminent domain, about one acre of land with improvements thereon, seventy-five feet in width 'off of one entire side of a ten-acre tract owned by him, near the city of Newport, and for damages resulting from the appropriation.

Appellee admitted the appropriation of the land for levee purposes, bnt joined issue as to the amount of damages resulting, alleging the value of the land and improvements appropriated and damaged to he $200, which amount it tendered.

The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict against appellant in the sum of $1,700. A judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court.

The Newport Levee District, appellant herein, was created by act No. 249 of the Acts of the G-eneral Assembly of 1917, and, in the construction of the levee authorized by said act, it appropriated for right-of-way purposes a strip of land seventy-five feet wide off of one side of a ten-acre' tract near Newport, owned by appellee. At the time of the appropriation, the improvements upon the strip of land consisted of a dwelling house, fences and cross-fences, and outbuildings, consisting of a barn, houses for pigs, etc. The dwelling was a frame house, painted inside and out, with brick flues, with porches front and hack, the construction of which cost about $2,300. The barn was 14 by 16 feet in the main, with sheds on three sides. The main part of the barn was built of split and hewed logs, most of cypress, and was covered with boards and shingles. There were racks and troughs around the barn to feed the stock. In addition to the hog houses, there were troughs and other conveniences for raising hogs. Before appellants appropriated the property, they employed.Sea to move the house off of the right-of-way onto another part of the ten-acre tract designated by appellee, which was damaged in moving. The other improvements on the property were torn down and appropriated by appellants. It is fairly in-ferable from appellee’s entire evidence that the improvements, including the dwelling, were placed npon the property hy appellee about three years before the appropriation, a short time after he purchased the ten-acre tract of land, for which tract he paid $1,800.

In the course of the examination of appellee, he was permitted to testify, over the objection of appellants, as follows:

Q. What did you put these improvements on this piece of land for, for what purpose?

A. Well, I figured on going out there and living. I had been in business fourteen or fifteen years, and I figured on making it my home and living there.

Q. Making it a home?

A. Yes, sir.

Q. Mr. Price, did you want the house moved from there on to that other piece of land?

A. No, sir.

Q. You didn’t want to live there, you wanted to live where you put your house, did you?

A. Yes, sir; that is what I put it there for.

Q. What do you say now, Mr. Price, would be your idea of the fair market value of that land?

A. Well, I don’t know. I didn’t want to sell it at all myself, you know. I bought it for my own use for my home, and I don’t know what it would be worth. I spent fifteen years you might say in saving up money for the place.

In the course of the cross-examination of appellee by appellant, he testified that he paid $1,800 for the entire tract, whereupon appellant propounded the following question to him: “Q. And when was that you paid $1,800 for the eight acres?” The court refused to permit this question to be answered, and proper exceptions were saved by appellant.

In the course of further cross-examination of appel-lee by appellant, he testified that it cost him $250 or $300 to build the barn; that it was worth what it cost him; that it was worth $500 to him. Appellant then asked ap-pellee concerning the market value of the barn;-whereupon the court ruled, over the objection and proper exception of appellant, that appellant could not show the fair market value of the barn, because there was no fair market value on second-hand barns in this country on another man’s land, and stating further that he did not think the fair value would be the measure of damages on the barn; that the test would be the damages to appellee by tearing it down.

The first insistence of appellant for reversal is that the court admitted evidence tending to establish a sentimental value of the property on account of being bought, planned and constructed by appellee for a home. It was improper to admit this evidence, but we do not think it prejudicial, for it was, in effect, eliminated by the instruction given by the court upon the measure of damages, which was not objected or excepted to by appellant.

The second insistence of appellant for reversal is that the court refused to permit appellants to show by ap-pellee at what time he paid $1,800 for the entire ten-acre tract. The price paid for land is a circumstance tending to show its market value at or near the time purchased. The real issue in the instant case was the value of the land at the time appropriated, together with the damages resulting on account of the appropriation, and evidence tending to show that appellee had purchased the tract near the time of appropriation for $1,800 would have been a circumstance tending to establish the value of the land taken and damages resulting oh account of the appropriation. It was error therefore to exclude the evidence of appellee as to the time he paid $1,800 for the entire tract, but we do not regard it as prejudicial error, for it is clearly inferable from the evidence that he built the house about three, years before the strip of land was appropriated by appellants, shortly after he purchased it. This fixed the time at which appellee paid $1,800 for the entire tract. There was no dispute in the evidence upon this point. ' It is 'not contended that by pressing this point upon cross-examination appellants could have shown that appellee paid $1,800 for the entire tract at a later date than about three years before the appropriation of the land. "We are of opinion that no prejudice resulted to appellant in this regard.

The next insistence of appellant for reversal is the refusal of the court to permit appellee to he interrogated as to the fair market value of the barn disconnected from the land, and to the statement of the court that the proper measure of damages was not the fair market value of the barn, hut the damage done to appellee by tearing it down. The barn was clearly a part of the real estate appropriated by appellant. The question at issue was not the market value of the barn disconnected from the real estate, but the value of the real estate appropriated with the improvements thereon,, as well as damages resulting from the appropriation. This court has established the rule for measuring damages in condemnation proceedings to be the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Little Rock, Miss. & Texas Ry. Co. v. Allen, 41 Ark. 431. The court did not err, therefore, in refusing to permit appellee to be interrogated concerning a fair market value of the barn disconnected from the land.

The last insistence of appellant for reversal is that the court permitted proof of the damages resulting on account of removing the dwelling from the lands appropriated to adjoining lands belonging to appellee. The insistence of appellant is that the contract for removing the dwelling was let to a Mr. Sea with the understanding that he should receive $150 for the job and assume all obligations for damages resulting on account of the removal thereof. Appellant requested the following instruction upon this point, which was refused by the court:

“You are instructed that if you find from the evidence that the defendants employed one Sea to move the Louse of tlie plaintiff from the land taken by the defend1 ants on to the plaintiff’s land, and that the said Sea had the sole control of the manner of doing such work, the hiring and discharge of the employees engaged in such work, and the sole control of the manner in which they did such work, then the said Sea was an independent contractor, and the defendant would not be liable for any damage done to said house by said Sea or his employees in moving it. ’ ’

The doctrine of independent employment has no application in condemation proceedings. The right to appropriate private property for public use was not delegated by the Legislature to an independent contractor of appellant but to appellant itself, and the exercise of the right of eminent domain can not be farmed out by the agency to whom delegated so as to escape liability on account of appropriating private property for public use. It was said in the case of Lesher v. Wabash Navigation Co., 14 Ill. 85 (Am. Dec., vol. 56, p. 494), that (quoting from the syllabus):

‘ ‘ Corporation authorized by charter to enter upon private premises and take therefrom materials for the erection of public works, and liable for compensation to the owners, is liable to the owners for the materials so taken by contractors employed by the corporation for the prosecution of a portion of the work, although the contractors were to furnish the materials and to do the work for a stipulated price.

“'Contractors employed to perform portions of public work by corporation chartered for that purpose are none the less the servants of the corporation because they do the work by contract and for a stipulated price.”

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Young v. Lowe.
    Opinion delivered April 4, 1921.
    1. Guardian and ward — necessity of appointment of guardian.— Crawford & Moses’ Digest, § 80, vesting decedent’s property, not exceeding $300 in value, jointly in his widow and minor children, does not require the appointment of a guardian for the minor children to protect their interest in such property.
    2. Descent and distribution — vesting estate in widow and heirs. Crawford & Moses’ Digest, § 80, vesting decedent’s estate, not exceeding $300 in value, jointly in his widow and minor children, intended to give the property jointly to the widow and children, with the right in the widow to use the property by mortgage or otherwise for the benefit of herself and the children.
    3. Injunction — estate vested in widow and children' — breach of trust. — Equity will enjoin a widow from using for her exclusive benefit property that was vested in her and her minor children for their joint benefit.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Trimble & Trimble, for appellants.
    1. The court erred in the first paragraph of its oral instructions. It invaded the province of the jury, and was improper and prejudicial and unsupported by the evidence. As a question of law, the property did not descend to the wife and children jointly. Kirby’s Digest, § 2636. The same error occurs in the third paragraph of the oral instructions.
    2. The verdict is clearly without evidence to sustain it. The execution of the mortgage by John Lowe and wife to the Gates Mercantile Company was not authorized, and it acquired no title under the mortgage, and by the transfer of the note to Nichols he acquired no interest in the property and had no authority to take possession and dispose of it under the mortgage.

      Chas. A. Walls, for appellees.
    The widow and minor children were entitled to $300 of the personal estate absolutely and it was the duty of the probate court to make an order vesting that amount in them. Kirby's Digest, § 3;- lb., § 72. There is absolutely no evidence to support a verdict for plaintiff. Nichols had the right legally to sell the property under the mortgage to the Gates Mercantile Company, assigned to Nichols, and appellants were not entitled to recover any amount whatever.
   McCulloch, C. J.

Appellees, who are' infants suing by their next friend, instituted this action' in the court below to recover damages for alleged conversion of certain personal property by the appellees, John Lowe and Tom Nichols. It developed on the trial of the issues, from the undisputed testimony, that the property in controversy was a mule of the value of $65 and a lot of cattle of the value of $137, making a total of $202. This was agreed upon during the progress of the' trial as the value of the property in controversy.

It appears from the testimony that this property was originally owned, with other personalty, by Osia Young, the father of appellants, who died during the year 1915, leaving Florence Young, his widow, and appellants as his heirs at law. There was no administration on the estate of Osia Young, and the property fell to his widow and minor children, being held and used by the widow for the benefit of herself and the children who resided with -her. The widow subsequently married ap-pellee John Lowe. Osia Young had mortgaged his personal property to a firm of merchants in Hazen, and John Lowe paid off the mortgage debt in the sum of $168 after he intermarried with the widow, and later Lowe and his wife mortgaged the property now in controversy, together with other personal property owned by John Lowe, to a firm of merchants in Lonoke, to secure an indebtedness for advances made to Lowe and his wife to enable them to farm. The merchants assigned the mortgage and debt it secured to appellee Tom Nichols, who-foreclosed the mortgage under the power contained therein. This -was after the death of Lowe’s wife, the widow of Osia Young. This suit was then instituted against Lowe and Nichols for the alleged conversion of the property. The court submitted the issues to the jury, and a verdict was returned in favor of appellees.

There is an obscurity in the testimony as to the total value of the personal property left by Osia Young, but, for the purpose of testing the correctness of the judgment below, we assume either that the property did not exceed in value the sum of $300, or tliat, if the total value of the property exceeded that sum, the property in controversy was a part of that which, under the statutes of this State, went to the widow and children as against creditors. The statute provides that when the personal property of the estate of a decedent does not exceed in value the sum of $300 the same shall vest absolutely “in the widow and minor children, or widow, or children, as the case may be,” and that “where the personal estate exceeds in value the sum of $300, the widow and minor children, or widow or children, as the case may be, may retain the amount of $300 out of such personal property at its appraised value.” Crawford & Moses’ Digest, § 80.

The evidence in the case warranted the conclusion that the widow of Osia Young used the property and mortgaged the same for the joint benefit of herself and minor children, and the question involved now is whether or not she was authorized to do this and to dispose of the property without the concurrence of a guardian for the minor children. It will be observed that the property under the circumstances described in the statute is vested jointly in the widow and minor children and not in sev-eralty. This statute was enacted as a part of the administration statute and was designed for the protection of the widow and infant children of decedents who might have left estates of little value. It was designed to afford a method to expeditiously dispose of the property and hold it at as little expense as possible for the benefit of those on whom the title was cast. It is inconceivable, therefore, in this view of the matter, that the lawmakers intended to confer upon the infants such a separate right as -would require the intervention of a guardianship in order to protect their interest in the property and give them, full enjoyment of it. If the statute be construed as having that effect, to require a guardian in order to enable the infant to enjoy the estate, its value would thus be frittered away in the expense of the guardianship. What the lawmakers obviously intended was to give the property jointly to the widow and children, and that the widow as the head of the family should have the right to use the property for the benefit of herself and the children. This does not mean that the infants are without remedy in the event the widow abuses the power thus conferred and uses the property for her own use in exclusion of the rights of the children. A court of equity would restrain such abuse of power as a violation of the trust. But there is no evidence in the present case of an abuse of authority by the widow. The children lived with her, according to the testimony, and there is nothing to show that she did not use the property or mortgage the property for the benefit of the children as well as for herself. This being true, the mortgage which she executed to the merchants ivas valid, and a foreclosure of the mortgage did not constitute a.wrongful conversion of the property. The judgment is therefore affirmed.