author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Porter.
    Opinion delivered February 16,1925.
    1. Commerce — exclusive powers op congress. — Congress has exclusive ¡power to regulate both interstate and foreign commerce, and its regulations in either field will supersede State statutes relating thereto.
    2. -Carriers — exemption prom: liability for pire loss. — Carriers may, under laws applicable in federal tribunals, -stipulate for exemption from liability for Joss by fire, but not from the consequences of their own negligence.

      3. Commerce — control over commerce with non-adjacent foreign countries. — Congress, by the Cummins Amendment to the Carmack Amendment (Comp. Stat. § 8604a) did not cover the subject of commerce with non-adjacent foreign counties, and hence a stipulation in a bill of lading covering a shipment to England, exempting the carrier from liability for loss by fire, is void under Crawford & Moses’ Dig., § 843.
    4. Commerce — construction of act of congress- — Crawford & Moses’ Dig., § 843, prohibiting carriers from limiting their statutory and common-law liability by contract, is not, as to inland carriers, superseded by Interstate Commerce Act § 25, ¶ 4, amended by Transportation Act of 1920, § 441 (U. S. Comp. St., 1923 Supp. § 8596a.), which relates only to carriers ;by water.
    Appeal from. Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      E. B. Kinsworthy and B. E. Wiley, for appellant.
    It is not denied that this shipment constituted foreign commerce. The power to regulate commerce given to Congress by the Constitution is exclusive, and a regulation of foreign commerce by the Congress under that power is exclusive and supersedes .any State statute or rule. Cons. U. S. Art. 1, § 8. Where Congress has entered the field and assumed control of the subject, the the law applicable to every case within that .subject is determined by Federal legislation, and the common law rules as applied in Federal tribunals, 241 IT. S. 327, 60 L. Ed. 1022; 240 IT. S. 612, 60 L. Ed. 827; '243 IT. S. 592, 61 L. Ed. 921; 107 IT. S. 202, 27 L. Ed. 325. If Congress has entered a certain field of regulation by passing legislation relative to the subject, the 'States are restrained from doing so, although Congress may not have covered the entire field or enacted anything inconsistent with the particular State regulation 'sought to be applied. 222 IT. 5. 370, 56 L. Ed. 237; 236 IT. S. 439, 56 L. Ed. 661; 242 XT. S. 255, 61 L. Ed. 276; '237 IT. S. 597, 59 L. Ed. 1137,1140; 162 Pac. Ill; 222 Mo. 658; 19 L. R. A. (N. S.) 326; 236 IT. S. 439, 59 L. Ed. 661, 665; 244 IT. S. 147, 61 L. Ed. 1045; 222 IT. S. 424, 56 L. Ed. 257; 76 So. 505; Cummins Amendment, 4 Fed. Stat. Ann. (2nd Ed.) 506, 507.

      The Federal law applicable here permits the carrier to stipulate for exemption from liability for loss by fire. 226 U. S. 491; 112 U. S. 331, 28 L. Ed. 717, 720; 194 U. S.. 427, 48 L. Ed. 1053; 204 IT. S. 505, 51 L. Ed. 590; 279 Fed. 929, 933

      J. C. Marshall, for appellee.
    If Crawford & Moses’ Digest, § 843-844, controls, that ends the controversy, because it prohibits any contract or rule or regulation which limits the common law liability of a carrier. That statute, we contend, does apply to this shipment. 169 U. S. 133; 28 L. R. A. 718; 128 N. W. 663, 115 N W. 230; 80 S. W. 488; 25 L. R. A. (N. S.) 938; 64 S W. 511; 22 L, R. A. 335; 3 L. R. A 129; 70 N. W. 508; 64 S. E. 38; Id. 35; 3 L. R. A. (N S) 183; 94 Ark 407; 101 Ark 310; 111 Ark 102.
    The Carmack Amendment is confined by its terms to interstate shipments. The Cummins Amendment enlarged its scope by including shipments to adjacent foreign countries, saying nothing about export or import shipments which pass from or to nonadjacent foreign countries. Therefore, as held by the interstate commerce 'commission and by Federal and State courts, the Carmack and Cummins Amendments have no application to these last-named shipments. . 212 Fed. 324; 281" Fed. (C. C. A.) 385; 114 Alt. (Md.) 905; 52 I. C. C. 671; Roberts, Fed. Liability of Carriers, §§ 322, 327. The statute has no application to interstate shipments, as was held of the Iowa statute (Ry. v. Cramer, 232 U. S. 490), but until counsel can point to a Federal statute which has done t'he like as to the inland haul of shipments to or firom nonadjacent foreign countries we must maintain that our statute is 'still intact as to that. 61 Mass. 53; 46 S. E. (Ya.) 911; Traffic Law, § 2005; Id. § 3037 A; 91 L. R. A. (Ya.) 511; 150 Ark. 571; 209 ü. S. 56; 101 Ark. 313; 244 U. S. 147; 169 IT. S. 613; 234 IT. S. 412; 236 IT. S. 434; 187 U. S. 137; 219 IT. S.- 453; 234 IT. S. 280; 128 IT. S. 96; 165 TJ. S. 628. See also 254 IT. S. 357. Where Congress has not spoken at all, but the State by taxation or other regulation has attempted to impose a burden upon commerce, 'the silence of Congress restrains the State from making the regulation; but where the State’s action is not a burden upon commerce, then it must stand, unless. Congress has spoken .to the contrary, on the same matter of regulation. 265 U. S. 298...
   Humphreys, J.

Appellees brought suit against appellant in the circuit court of Pulaski County, Third Division, to recover the value of seventy-five bales of cotton which they shipped from Earle,. Arkansas, to Liverpool, England, on an export bill of lading, which was destroyed by fire while on the cars of appellant, before its train left Earle.

Appellant interposed as a defense the following pro-, vision in the bill of lading:

“No carrier or party in possession of said property shall be liable for any loss thereof by causes beyond its control, or by floods, or by fire, or by riots, strikes, or stoppage of labor.”

A jury was waived, and the case was tried before the court, who rendered a judgment against appellant for $10,999.70, from which is this appeal. The sole question involved on this appeal is the validity of the provision in the bill of lading, which exempts the carrier from liability for loss of the cotton by fire. The case was submitted upon the following agreed statement of facts raising that issue:

‘ ‘ On October 21, 1920, the Missouri Pacific Railroad Company received from Porter, Weaver & Company, at Earle, Arkansas, 75 bales of cotton referred to in the petition, for shipment to Liverpool, England, and on said date issued to said shippers an export bill of lading, an exact copy of which is attached and made part thereof, consigning said shipment to shipper’s order, Liverpool, England; that, after the execution of said bill of lading, and before said cotton had been removed by the carrier from Earle, Arkansas, and while same was on the cars of defendant, same was destroyed by a fire originating at the compress at Earle, Arkansas, and not set by defendant ; that the only issue in the case is whether, in view of the execution of the bill of lading with the condition hereinafter referred to in regard! to loss by fire, the carrier is liable for such loss and damage by fire; that said export bill of lading, under and pursuant to which this shipment was made, provided that the carrier should not be liable for loss of said cotton occasioned by fire; that claim for the loss in question was timely filed and declined by the carrier, and suit thereafter was timely filed for said loss. ’ ’

The provision in the bill of lading exempting appellant from liability on account of fire is a limitation upon appellant’s common-law liability, and is void undei§ 843 of 'Crawford & Moses’ Djigest, if the shipment was controlled by the laws of the State.

Appellant contends that the shipment was governed by the Cummins Amendment of 1915 and 1916 to the Carmack Amendment, because the Cummins Amendment evidenced an intention on the part of Congress to occupy the field of regulating foreign commerce, just as the Carmack Amendment evidenced its intention to enter the field of regulating interstate commerce. Congress has exclusive power to regulate both interstate and foreign commerce, and, when it has entered upon the field of regulating either, and does regulate either, the effect is that the regulatory acts of Congress upon the subject will supersede State statutes relating thereto, and all interstate and foreign shipments will be governed by Federal legislation and the common-law rules as applied in the Federal courts. C. N. O. & T. Ry. Co. v. Ranhin, 241 U. S. 327; So. Exp. Co. v. Byers, 240 U. S. 612; St. L. I. M. & S. R. Co. v. Starbird, 243 U. S. 592; Mich. Cent. R. Co. v. Myric, 107 U. S. 102. Carriers are permitted, under the law applicable in the Federal tribunals, to stipulate their exemption from liability for loss by fire, except that it cannot exempt itself from consequences resulting from its own negligence. Hart v. Pa. R. Co., 112 U. S. 331. Liability in the instant case, then, depends upon whether the Cummins Amendment to the Carmack Act has covered the field of regulating commerce with foreign nonadjacent countries. The liability paragraph of the Carmack Act reads as follows:

“That any common carrier receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable to holder thereof for loss, dam-' age,” etc. The Cummins Amendment inserted therein the following words: “or from any point in the United States to a point in an adjacent foreign country.” Did the insertion of these words evince an intention on the part of Congress to cover the entire subject of regulating foreign commerce? We think not. The plain language of the amendatory act reflects that Congress was dealing only with commerce with adjacent foreign countries. There is not an indication in the amendatory act that Congress intended to regulate commerce with non-adjacent foreign countries. We think it inconceivable that Congress would manifest its intention to enter the field of regulating commerce with non-adjacent countries by indirection. We are unable to gather an intention on the part of Congress to regulate commerce with non-adjacent foreign countries because it enacted regulatory measures relating specifically to commerce between adjacent countries. Such an inference would be far-fetched and unreasonable. The subject of commerce with adjacent foreign countries and with non-adjacent foreign countries are separate and distinct, so it cannot be inferred that Congress, in dealing with one subject, intended to embrace both.

. Since Federal laws have not been passed covering the field of regulation of loss in shipments of this character, the shipment is governed by § 843 of Crawford & Moses’ Digest. Our attention has been called to paragraph 4 of 4 25 of the Interstate Commerce Act, as amended by the Transportation Act of 1920 (Fed. Stat. Ann. 1920 Supp. p. 124), in support of the contention that § 843 of Crawford & Moses’ Digest has been superseded by the Federal law. The only provision in the section relative to iimited liability refers to a -carrier by water, and does not relate to the issue involved in this case -of limited liability of an inland carrier.

Having concluded that the stipulation in the bill of lading exempting1- appellant from liability on account of loss by fire is void under § 843 of Crawford1 & Moses’ Digest, which prohibits a -earner from limiting its common-law liability as an insurer against loss by fire, it becomes unnecessary to discuss and decide other questions argued in briefs of learned counsel for the respective parties.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    American Law Book Company v. Hurst.
    Opinion delivered February 16, 1925.
    1. Sales — right op seller to recover possession. — Where the seller of books first violated its -contract by removing the purchase money note from the local bank at which it was payable, it was not error to impose a condition on its recovery of -articles sold of a return of the amount paid under the contract by the purchaser.
    2. . Sales — -waiver op belay in payment. — Acceptance- of belated payments o-n a contract for the purchase of.law books, without objection by the seller, is a waiver of the right of forfeiture on -account of such delay.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.
    Appellant fro se.

    The- plea in defense that it was agreed to leave the note at the Bank of Fayetteville is bad in the absence of the further pleading that-the defendant-was and has been at all times ready, willing and able to pay the installments. C. & M. Digest, §7836; 8 -C. J. 527. A plea of tender is bad unless a continuing willingness to pay is alleged. 33 Ark. 340; 38 Cyc. 158; 90 Ark. 524.

      Defendant admitted the contract, the signing of the note, and that he had paid only $185 thereon, hut alleged he had an equitable defense in avoidance of his ¡contract. Under these circumstances the burden of proof was oh the defendant. 8 Ark. 290; 11 Ark. 442; 13 Ark. 644; 24 Ark. 124; Id. 410; Id. 459.
   Humphreys, J.

This is a suit in replevin for certain law 'books, brought in the circuit court of Washington County, to which equitable defenses were interposed, and, upon motion of appellee, was transferred to the chancery court of said county. The cause was submitted for trial upon the pleadings and testimony adduced by the respective parties, which resulted in a decree in favor of appellant for the books and a judgment in favor of appellee for $180, the amount he had paid appellant on the book. Appellant has prosecuted an appeal to this court from the money judgment and the lien declared on the books therefor.

The facts revealed by the record are, in substance, as follows: On October 21,1915, appellant sold appellee, under written contract, forty volumes of Cyc. and Index, forty-three volumes in all, and Corpus Juris as issued (sixty-two volumes, estimated), which appellee agreed to pay for at $7.50 per volume, as follows: $15 cash herewith, and my note payable $7.50 monthly for forty-one months, and thereafter $7.50 per volume upon delivery of volumes 41 to 62 inclusive of Corpus Juris, upon the terms stated below. The company will exchange volumes 1 to 40 inclusive of Corpus Juris as issued, volume for volume, for Cyc. purchased by subscriber under this contract, such exchange to be in full payment for volumes 1 to 40 inclusive of Corpus Juris. Cyc. may be retained until Corpus Juris is completed.”

The contract also provides that, in default in any payment including payments covered by note, for thirty' days, the purchase price of all books delivered should become due and payable, and that the books should belong to appellant until the entire purchase price was paid.

Of even date with the contract a note was executed by appellee to appellant for $307:50, payable at the rate of $7.50 per month, beginning December 1, 1915. The note contained a provision that it was payable at the Mcllroy Banking Company in Fayetteville, Arkansas. Credits appear on the back of the note in the sum of $165, the last credit being for $7.50 made on February 5,1918. Appellee paid appellant $15 cash when the note and contract were executed. Appellant delivered Cyc. and the Indexes and sixteen volumes of Corpus Juris to appellee. The last two volumes were delivered to him after the date of the last payment made by him on the note. After the last payment was made on the note, of date February 5, 1918, appellant directed the Mcllroy Banking Company, who had held the note during the period the payments had been made, to return the note to it. Appellee called at said bank to make another payment, and was informed that the note had been returned to appellant because it was unwilling to pay $0.25 to the bank on each collection. During the time the note had remained at the bank, appellee had fallen behind in his payments, and, at the time he made the last payment, was six months behind. Appellant made no objection to these delays, but accepted each delayed payment when made. Appellant demanded that appellee send the payments directly to it, which he refused to do,' insisting on his right under the contract to pay same and receive credit therefor on the note at the Mcllroy Banking Company in Fayetteville, Arkansas. Appellee testified that this provision was inserted in the note so that he could see that the credits were entered thereon as he made the payments.

This suit was, in effect, an attempt to enforce the contract by retaking the books for failure on the part of appellee to make the monthly payments provided for in the contract and note. The note provided for the monthly payments to be paid at the Mcllroy Banking Company in Fayetteville, Arkansas, and the undisputed testimony shows that this provision was inserted in the contract in order that appellee might see that the payments were credited upon the note. The refusal to leave the note in said bank for collection, under the circumstances, constituted a breach of the contract on the part of appellant. Having- breached the contract itself, appellant was not in a position to enforce it without first offering to do equity. This the court required it to do by rendering a judgment^against it for the amount appel-lee had paid it at the time he rendered a judgment in favor of appellant for the books. It is argued that appellee first breached the contract by falling behind in his monthly payments. Nearly every payment made by appellee was a belated payment, but each payment was received without objection by appellant, and these breaches, if any, were waived by appellant, who accepted them without complaint. The record reflects that the note was withdrawn from the place of payment because ppellant did not want to pay $0.25 on each collection, and not because appellee was behind in his payments.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Alexander v. Morris & Company.
    Opinion delivered February 23, 1925.
    X. Deeds — repugnance.—Where there is irreconcilable repugnance between the granting clause of a deed and the habendum, the latter must yield to the former, and is to that extent void.
    2. Deeds — habendum clause. — The purpose of the haibendum clause in a deed is to define the extent of the grant, and it is controlling except where it conflicts with the granting clause.
    3. Deeds — conveyance upon limitation. — A conveyance of lands to a lumber corporation, “its successors and assigns forever,” which specified that the conveyance was for the purpose of the grantee cutting and removing the timber which required the grantee to pay the taxes as long as it should use the land, and provided for reversion to the grantors of all the lands except a small tract to be used for a mill site, as to which the fee simple title passed to the grantee, held to convey an estate upon limitation, to be determined on the removal of the timber or abandonment of same, and not a fee simple.

      Appeal from Greene Crancery Court; J. M. Futrell, Chancellor;
    reversed.

      D. G. Beauchamp, for appellant.
    The deed under -which appellee claims was nothing more than a timber deed. To ascertain the intention of the parties to a deed, it must be construed from its four corners. 129 Ark. 485; 140 Ark. 512. If the granting clause is SO' plain that it cannot be misunderstood, then there is no room for construction and other clauses must harmonize with this, or yield to it. 28 Ark. 285; 121 Ark. 95; See 26 S. E. 844; 93 Ark. 5. This case is distinguished from the one in 82 Ark. 209, as there the deed showed that dt was the intent of the grantor to convey a fee simple title. 'See also the annotated case in Ann. Gas. 1917 B., p. 661.

      M. P. Huddleston, for appellee.
    Evidence wias not admissible to explain, contrayene or limit the terms of the deed. Where- a case is tried-without a ¡jury, it is presumed that only competent evidence will he considered; hence it is not necessary to object to incompetent testimony. 99 Ark. 218; 76 Ark. 153; 92 Ark. 315; 97 Ark. 135. The reservations in the de'ed were personal to the grantors and good only during their life; they were not such covenants as pass with the title to the land to the heirs or legal representatives of the grantor. 88 Ark. 148; 38 Calif. Ill; 100 Pa. St. 84; 70 N. T. 419; '64 Ark. 339. Subsequent clauses repugnant to- granting clause are void. 88 Ark. 209; 92 Ark. 324; 78 Ark. 230. See also the following oases, 94 Ark. 615; 131 Ark. 103; 135 Ark. 412; 117 Ark. 192; 121 Ark. 95. Courts will not disturb contractual relations or valuable rights resting upon the strength of decisions of courts of last resort, except from,the most urgent considerations of public policy. 99 S. W. (By.) 311; 116 Pac. 426.
   McCulloch, C. J.

This litigation involves the construction of a deed of conveyance executed on January 2, 1901, by appellants to the National Box Company, appellee’s gxantor. It is .the contention of appellee that, under a proper construction of the deed, it operated as a conveyance of the lands therein described in fee simple to appellee’s grantor, National Box Company, and this action was instituted in the chancery court of Greene County by .appellee to have its title to the land confirmed. Appellants contend, on the other hand, that a proper construction of the deed is that it conveyed only the right to remove the timber on the land (except a small tract conveyed as a mill-site, which it is conceded passed to the grantee in fee simple) and that such rights have terminated by the removal of the timber. Appellants, in a cross-complaint, ask that their title be quieted. The deed, omitting formal parts, reads as follows:

“Know all men by these presents:
“That we, H. A. Amberg, L. P. Alexander, Scott Alexander, J. W. Alexander, R. L. Alexander and W. J. Slayden (the latter being a widower), composing the firm pf Alexander, Amberg & Company; and Emma Amberg, ,wife of the said H. C. Amberg; Cretia Alexander, wife of the said L. P. Alexander; Maud Alexander, wife of the said Scott Alexander; Kate W. Alexander, wife of the said J. W. Alexander; and Mary I. Alexander, wife of the said B.. L. Alexander, in consideration of the sum of eight thousand ($8,000) dollars to us cash in hand paid by the National Box Company, a corporation, of the State of Illinois, with its situs at Chicago, in the State of Illinois, the receipt of which is duly acknowledged, do hereby grant, bargain, sell and convey unto the said National Box Company and unto its successors and assigns, the following lands, together with all the riparian rights incident and appurtenant thereto, situate in the county of Greene, State of Arkansas, to-wit: (Then follows description of tracts of land containing in the aggregate 4,383.22 acres). Except the five following described meandered and measured tracts, namely (Here follows description).
“The above described five (5) tracts so excepted containing in the aggregate 2,896.79 acres.
“Also excepting ten acres at the county bridge on the east side of Bagwell’s Lake, at the northwest corner of section 16, township 17 north, range 7 east, and 70 acres in the southwest quarter of section ten, township 17 north, range 7 east, ¡belonging to Live say.
“Also excepting two acres of land in a square in the sontheast corner of the northeast quarter of the ■southeast quarter of section 21, township 17 north, range seven (7) east, containing schoolhouse and grounds, reserving to ourselves the right of ingress and egress through and over said lands, perpetually, and also reserving the sassafras and mulberry, and sufficient cypress for necessary improvements to the lands above, to consist of 'bridges and house building, also the privilege of grazing, and fencing for that purpose, any parts of said lands any time we may so desire, and hereby granting to said grantee the right to them over such parts of our excepted tracts as may be convenient in pursuance of its business, provided the same shall be done in a reasonable manner so as to not substantially interfere with and injure said excepted tracts and our enjoyment thereof.
“It is the intention of this instrument to convey the grantee all the land unfit for cultivation on Bark Camp, Panther, and Boland’s Islands owned by grantors, the inner boundaries of which have been meandered, measure'd and marked by a blaze with notch above on tr§es along the line, together with sufficient dry land for mill-site at east side of Bagwell’s Lake, at crossing of P. S. E. R. R. and on the north side thereof, which said dry land is also without the meander line above given, and is conveyed subject to existing timber contracts.
“To have and to hold the same unto the said National Box Company and its sucessors and .assigns in fee simple forever.
“And the said grantee, its successors and assigns, hereby convenant and agree to use said land, and the riparian rights appurtenant thereto, so hereinabove conveyed, for the purpose of cutting and removing the timber therefrom and conveying the same to and from the sawmill of said grantee (to be located and erected by it upon a portion of said land hereinabove conveyed, containing about ten acres, and situate in the southeast quarter of section (29) twenty-nine aforesaid, at the east side of Bagwell’s Lake, on the north side of the crossing of the Paragould Southeastern Railroad), and for said mill-site and grounds and for such other purposes as may he convenient and incidental to or beneficial for the purpose of said grantee’s business; and said grantee, its successors and assigns, further covenant and agree to pay the taxes hereafter levied and assessed on the said lands so conveyed to it so long as it or they shall use, occupy and enjoy the same as hereinabove mentioned. Upon notice in writing of the election of said grantee, its successors and assigns, the said grantors, their heirs, legal representatives or assigns, to abandon any or all of said land (excepting the above described mill-site and grounds, which shall not in any event so revert), such lands or any part or parts thereof so abandoned shall thereupon revert to said grantors and their heirs.”

(Here follow covenants of warranty and relinquishment of dower in regular form.).

Evidence was introduced at the trial of the cause tending to show the construction placed upon the deed by the grantee subsequent to its execution, but we deem it unimportant to consider this testimony, for the reason that we conclude that the deed, when considered as a whole, is unambiguous, and that it must be interpreted according to its own language.

The chancery court decided that the deed operated as a conveyance of the title to the land in fee simple, and accordingly decreed in favor of appellee, quieting the title.

One of the rules often recognized by this court in the interpretation of deeds is that, following the rule of the common law, where there is an irreconcilable repugnance between the granting clause of a deed and the habendum, the latter must yield to the former, and is to that extent void. The purpose, however, of the haben- dmn is to define the extent of the grant, and it is controlling except where it conflicts with the granting clause. One of the comparatively recent cases on that subject, where former decisions were reviewed, is the case of Stokes v. State, 121 Ark. 95. We have a number of cases affording examples where the habendum is not found to he in conflict with the granting clause and is held to control the grant. Whetstone v. Hunt, 78 Ark. 230; McDill v. Meyer, 94 Ark. 615; Dempsey v. Davis, 98 Ark. 570; State v. Stokes, supra. We have held that reservations, conditions or limitations in the granting clause of a deed constitute a part of the grant and serve to limit it, and that such reservations, conditions or limitations which are not repugnant to the granting clause in a deed are equally effectual wherever they may appear in the deed. Fletcher v. Lyon, 93 Ark. 5; Russell v. Pagan, 167 Ark. 143.

In the case of McDill v. Meyer, supra, we construed a deed which, in the granting clause, purported to “bargain, sell, alien and convey” to the grantee, without the use of words of inheritance or other express grant of the title in fee simple, and there were restrictions and limitations in the habendum clause which we held not to be in conflict with the grant as expressed in the granting clause. In Stokes v. State, supra, there was substantially the sarnie situation, and we held there that the limitation in the habendum clause controlled the grant.

We are of the opinion that these decisions control the present case, for an examination of the deed in question discloses the fact that, while there is used in the granting clause the words, “grant, bargain, sell and convey,” which imply a conveyance in fee, yet there is no express grant of a fee, hence the limitation or reservation expressed in the habendum or other part of the deed is not in conflict with the grant and operates as a limitation upon the estate granted. Use of the word “successors” in a deed to a corporation takes the place of the word “heijrs” in a deed to a natural person and implies a grant lin fee simple, but it is not an express grant to that extent so as to put the grant in 'conflict with words of limitation in the habendum. The use of the word “successors” is superfluous and adds nothing to the effect of a conveyance. 1 Tiffany on Real Property, p. 49. Nor does the use of the words “assigns forever” add anything to the effect of the grant. Watson v. Wolf-Goldman Realty Co., 95 Ark. 18. When we come to examine the deed as a whole, it is plain that a conveyance of the fee was not intended. The first sentence or paragraph in the habendktm declares a grant in fee simple, but this must be construed with the other parts of the clause which show the fee was not granted except as to the tract purchased for use as a mill-site. There is, in the first place, a stipulation as to the use to which the land is to be put, that is to say, “for the purpose of cutting and removing the timber therefrom and conveying the same to and from the sawmill of said grantee.” There is a further covenant that the grantees should pay the taxes on the land, and a provision in express terms that the title should revert to the grantors and their heirs. There is no escape from the interpretation of this language that the title, except as to the particular tract expressly conveyed in fee simple for a mill-site, was to revert upon the removal of the timber, and 'the deed conferred upon the grantee the privilege of “reverting” the several tracts 'and thereby escaping the burden of paying taxes thereon as the timber should be removed therefrom. The deed (conveyed moire than the mere privilege of i removing the timber — it conveyed the land itself, not in fee simple however, but upon limitation.

A conveyance upon limitation, that is to say, an estate to be determined upon the happening of a certain event or at the expiration of a certain time, is a character of estate recognized in the law. Tiedeman on Real Property, 4th ed., § 211; Church v. Moses, 69 Mass. 142; Attorney General v. Merrimac Mfg. Co., 80 Mass. 586; Henderson v. Hunt, 59 Pa. St. 335.

Our conclusion is that the deed before us conveyed an estate upon limitation, and that, upon the happening of the event, namely, the removal of the timber, the estate terminated and reverted to the grantors or their heirs. 'Such being the case, the decree of the chancery court was erroneous, and the same is reversed, and the cause remanded with directions to enter a decree in favor of appellants in accordance with this opinion.

Smith, J., dissents.


author: McCulloch:, C. J.

text:
    McRae v. Farquhar & Albright Company.
    Opinion delivered February 23,1925.
    1. Appeal and error — question not raised below. — Whether an ■action to compel ¡members of the text-book commission to execute a contract for furnishing books and a suit to restrain .them from breaking such contract are suits 'against the State will not be considered where not expressly raised below nor discussed on -appeal.
    2. Contracts — when consummated. — When a contract is actually entered into between the parties with intention to- become bound thereby, it is consummated within the meaning of the law, though ■it was agreed that the terms of the contract should be reduced to writing.
    3. Schools and school districts — contract to furnish textbooks. — Under Crawford & Moses’ Dig. § 9075, providing that contracts for school text-books shall be prepared by the Attorney Genaral, shall be executed in triplicate, and that the contractor ■shall execute a bond, which presumably is to be approved and ■accepted by the Text-Book Commission, a contract with such commission to furnish text books is nol; consummated until formal execution of the Written contract and approval of the bond by the Text-Book Commission.
    4. Estoppel — refusal to execute written contract. — The TextBook Commission is not estopped to refuse to execute a written contract under Crawford & Mbses’ Dig., § 9075, on terms of an accepted bid for furnishing text-books, nor from entering into a new contract with another publisher for the same- books, where the time for performance had not arrived nor any benefits been accepted.

      5. Schools and school districts — discretion of text-book commission. — Members of the Text-Book Commission may recede from negotiations' for the purchase of text-books at any time before the final signing of the contract and approval of the bond, as contemplated by Crawford & Moses’ Dig., § 9075.
    6. Contracts — reduction to writing. — Where the statute requires reduction to writing of 'a contract for text-books, there can be no presumption of intention to consummate it in any other form.
    (1) Appeal from Pulaski Circuit Court, Third Divi-
    sion ; Marvin Harris, Judge;
    reversed.
    (2) Appeal from Pulaski Chancery Court, John E.

      Martinecm, Chancellor;
    reversed.

      H. W. Applegate, Attorney General, and Broohs Hays, Assistant, fox appellant.
    The act of signing the contract was one involving discretion, hence mandamus will not lie. 18 R. C. L. 116; 106 Ark. 506; 102 Ark. 470 ; 146 Ark. 255. No valid contract between the parties was consummated, the acts undertaken being merely preliminary steps, the signing of a formal contract, the consummation. 6 Eng. Ruling Oases 170; 144 N. Y.,229; 29 L. R. A. 431; 116 S. W. 693; 52 Am. Dec. 291; 103 Mo. 70; 26 Okla. 209. Our court has held in 97 Ark. 613 and 95 Ark. 421, that there must be a meeting of the minds on all essentials. Appellee is charged with the limited powers and duties of appellant, and is bound by the law respecting the making cf any contract. 94 Ark. 583; 43 Ind. app. 58; 167 Ind. 622; 6 R. C. L. p. 618; 66 L. R. A. 812. The statutory requirement rather than the intention of the parties is controlling. 184 U. S. 524. See also 137 N. Y. S. 384; 87 Ark. 93; 108 Minn. 322; 122 N. W. 173. Mandamus will not lie against the Governor at all. 1 Ark. 570; 18 R. C. L. 199; 45 L. R. A. (N. S.) 500; 40 L R. A. (N. S.) 505; 156 N, Y. 136, 41 L. R. A. 231.

      H. E. Mecartney and Owens S Ehrrrian, for appellee.
    A valid contest was entered into and the board did not have the discretion to recede from its actions, especially in view of .the extensive preparation made by appellee looking to the fulfillment of the contract. 262 S. W. 728; 93 S. E. 759; 249 IT. S. 313. When the essential terms of a contract are entered into, it is binding upon the parties, notwithstanding the fact that it is later reduced to writing. 140 Ark. 448. The duty of the G-ovemor as chairman, to sign the contract, was purely ministerial, and he could be compelled to do Ms duty by mandamus. 129 Ark. 286; 39 Oal. 189.
   McCulloch:, C. J.

The statutes of this State provide for the creation of the State Textbook Commission, a board composed of the G-ovemor, the State Superintendent of Public Instruction, and seven other citizens, with authority to select and adopt a uniform series of books for use in the public schools of the State, and to enter into contracts with publishers for furnishing the books at agreed prices for a period of six years. 'The statute provides that the Commission, after its organization, shall advertise for bids from publishers ef schoolbooks, and, at a public meeting of the Commission, on receipt of bids, shall select and adopt the books to be used, and consider bids from publishers for furnishing the same. Crawford & Moses’ Digest, § 9065 et seg_., as amended by Acts of 1921, p. 326, and Acts of 1923, pp. 198, 347. The section of the statute relating to the form of contract with publishers reads as follows:

“Section 9075. Contracts mid bonds. After the Textbook Commission shall have adopted the books hereinbefore provided, the Commission shall notify the publishers to whom the contracts shall have been awarded, and it shall be the duty of the Attorney G-eneral to prepare said contracts, and said contracts are to be executed by the chairman and secretary of said Commission. Said contracts are to be executed in triplicate, one copy to be-kept by the contractor, one copy by the State Superintendent of Public Instruction, and one by the Secretary of State. At the time of the execution of the aforesaid contracts, the contractor shall enter into a good and sufficient bond, with a bonding company authorized to do business in the State of Arkansas, in a sum to be determined by the Commission, but not more titan $20,000, and conditioned npon the faithful performance of all the conditions of such contract, not contrary to the provisions of this act. Such bonds shall not be exhausted by a single recovery thereon, but may be sued upon from time to time until the full amount thereof is recovered. In case of recovery on such bond, the Commission may require such additional bond as may be necessary to keep the bond equal to its original amount.”

Appellee, a foreign corporation, is engaged in the business of publishing school books, and it instituted against the members of the State Textbook Commission the two actions involved in these appeals, one an action at law to compel the chairman and secretary of the Commission, by peremptory mandamus, to execute a written contract covering the terms of appellee’s .accepted bid for furnishing certain books, and the other in the chancery court to restrain the State Textbook Commission from breaking an alleged contract with appellee by entering into a new contract with some other publisher for books covered by appellee’s contract.

The same facts were, in substance, stated in each of the complaints, and the cases were heard below on an agreed statement of facts in substantial conformity with the material facts alleged in the complaint. The circuit court, on a trial of the case, decided in favor of appel-lee, and ordered the chairman and secretary of the State Textbook Commission to approve the bond presented by appellee and execute the form of contract which had been previously prepared by the Attorney General and signed by appellee. The chancery court, on final hearing of the cause, rendered a decree restraining the State Textbook Commission from breaking the alleged contract with appellee and from letting the contract to another concern.

The material facts are undisputed. The State Textbook Commission advertised for bids, in accordance with the statute, for furnishing textbooks, the bids to be presented and opened on December 21, 1923, and on that day appellee filed its proposal to furnish a series of textbooks on the subject of writing. On the day mentioned the Commission opened the bids, and accepted the one of appellee, and awarded to appellee the contract for furnishing- the hooks mentioned in its proposal. The secretary of the Commission mailed a notice to the county and city superintendents in the 'State, advising them that the Commission had adopted appellee’s proposal to furnish a textbook termed, “Applied Movement Writing,” and also notified appellee in writing of the acceptance of its proposal. The Commission also sent to appellee by mail a form of contract in triplicate, prepared by the Attorney General, as provided by law, and requested that the same be executed and returned to the secretary of the Commission, accompanied by a surety bond in the sum of $5,000; and appellee signed the contract and executed the bond as requested, and returned the same to the secretary of the Commission. The performance of the contract was to begin September 1, 1924. The chairman and secretary of the Commission did not sign the contract, nor was there a formal approval of the bond, and nothing further transpired between the Commission and appellee with relation to the contract .until February 7, 1924, when appel-lee was notified by the secretary of the Commission that there was to be a meeting of the Commission on a stated date before any contracts would be signed. There was a meeting of the Commission on March 17, 1924, and the Commission, by vote, decided to postpone the signing of the contracts until a later date; and, at a meeting held by the Commission on May 24, 1924, by vote the acceptance of appellee’s bid was reconsidered and the bid rejected. Prior to the time that appellee was noti-' fied that there was to be a reconsideration of the acceptance of its bid, it had entered into preparations for the performance of the contract.

The contention of appellee is that a binding contract was consummated by the written acceptance of appellee’s written proposal, notwithstanding the fact that the terms of the agreement were to be reduced to writing in a formal contract to be signed by the parties.

We pretermit any discussion of the question whether or not these are suits against the State, since the question was not expressly raised below and has not been discussed here, and we will confine ourselves to a discussion of the principal question which is argued by counsel, the solution of which will control the decision of the cases — that is to say, whether or not there was a consummation of the contract between the State Textbook Commission and appellee.

This court has, in many decisions, recognized and enforced the principle of law that, when a contract is actually entered into -between the parties with intention to become bound thereby, it is consummated within the meaning of the law, notwithstanding the fact that it was agreed that the terms of the contract should be reduced to writing. Emerson v. Stevens Grocer Co., 95 Ark. 421; Skeen v. Ellis, 105 Ark. 513; Friedman v. Schleuter, 105 Ark. 580; Alexander-Amberg Co. v. Hollis, 115 Ark. 589; Kilgore Lumber Co. v. Halley, 140 Ark. 448. The precise language used in the several opinions of this court is slightly variant, but the substance of the rule in each case is that it turns on the question of the intention of the parties whether or not they intended to consummate a contract prior to its formal reduction to writing. In the case of Friedman v. Schleuter, supra, we quoted with approval the language of Lord Blackburn in the case of Rosster v. Miller, 3 App. Cas. (Eng.) p. 1151, as the basis of the rule, as follows:

“So long as they are only in negotiation, either party may retract; and, though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there' is no contract. The parties, in such a case, are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties, does not by itself show that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or not.”

- In another English case, decided by the same court about that time (6 Eng. Bul. Cases, p. 170), the rule is laid down as follows:

“Where parties agree in a binding manner to all the terms of the contract, the agreement is none the less a contract because it appears from the terms of the written agreement, or otherwise, that the parties intended to embody the terms in a more formal contract; but, where it appears that the drawing up and signing a formal contract was contemplated as a condition precedent of the final transaction by which the parties were to be bound, there is no contract until this is done.”

The decision of the present case therefore comes down to the question whether the parties intended, and the statute permits, the consummation of a contract prior to its formal reduction to writing, or whether the formal execution of the written contract and the approval of the bond were essential to the consummation of the contract. Our conclusion is that, under the statute authorizing this contract, there can be no consummation until formal execution of the writing required by the statute and the approval of the bond which the statute also requires; nor could there be any presumed intention of the parties to consummate the contract prior to the fulfillment of those details. It will be observed that the statute (Crawford & Moses’ Digest, § 9075) provides that the contract must be prepared by the Attorney General, who is the law officer of the State, and that it must be executed in triplicate. It also requires that the bond be executed, which must, presumably, be approved and accepted by the Commission. In order to comply with this statute, there must be a written contract, and one which in form must not only be satisfactory to the Commission, but one which the Attorney General, as law officer of the State, .prepares. These requirements of the statute are necessarily mandatory, and no unexecuted contract is valid unless consummated in the required manner. Griggs v. School District, 87 Ark. 93. There is no element of estoppel in the present case, for the reason that the time for performance of the contract had not arrived, and no benefits under the contract had been accepted.

The design of the statute was to lodge a discretion in the State Textbook Commission with respect to the sufficiency of the bond and the form of the written contract as prepared by the Attorney 'General, and this discretion could be exercised at any time prior to the formal signing of the contract and the approval of the bond.

The motives or reasons of the members of the Commission in declining to consummate the contract are unimportant, for, however capricious the conduct of the members of the Commission was, they had a right to recede from the negotiations at any time prior to formal consummation of the contract. In other words, until the Commission became bound by a legally consummated contract, there could be a rescission from1 the negotiation by either party.

Counsel for appellee press upon our attention as controlling in this case the decision of the Supreme Court of the United States in U. S. v. Purcell Envelope Co., 249 U. S. 313, and it must be conceded that there is much similarity in some respects between that case and the one now under discussion. There is, however, in that case one important distinction, in that there was no statute, so far as we have been able to discover — certainly none referred to in the opinion of the court — which expressly requires that the contract between the government and the other party should be reduced to writing. If there was any such practice, it was presumably a mere departmental rule and mot one absolutely required by the statute. That, we think, is an important distinction, for, as we have already said, where there is a statute requiring That a contract be reduced to waiting, there can be no presumption of an intention to consummate the contract in any other form.

The decision of the trial court in each of the cases before ns was erroneous, and the judgment of the circuit court in the one case, and the decree of the chancery court in the other case, are reversed, and the complaint in each case dismissed. It is so ordered.


author: Wood, J.

text:
    Merritt Mercantile Company v. Nelms.
    Opinion delivered February 23, 1925.
    1. Highways — permissive use — evidence—In a suit to enjoin defendant from 'closing up a road the trial court’s finding that the use of the roadway toy the public was not adverse tout permissive was not against the preponderance of the evidence.
    2. Highways — PERMissrvE use of road. — Where the public use a road running through open, unfenced land without any order of the county court making it a public road, and without any 'attempt to work it or exercise authority over it as a public highway, it will be presumed that the use. of the road is not adverse to the rights of the owner of the land, tout by his consent, and when he needs the land he may withdraw his consent and exclude the public.
    3. Highways. — sufficiency of proof of user. — Proof of user alone of ia road is insufficient to show it to toe a public highway; it must appear that such user was under a claim of right hostile to and independent of the will of the owner, as by repairing the road or assuming control of it in some ostensible manner.
    4. Highways — prescription.—Adverse use of a road for seven years by the public is necessary to establish a road as a public highway toy prescription.
    Appealed from Oraigbead Cbanoery Court, Eastern District; J. M. Futrell, Chancellor;
    'affirmed.

      Hawthorne, Hawthorne & Wheatley, for appellant.
    The road is a public highway. A road may be appropriated for travel by an individual, a corporation or the public. 13 R. C. L. 15-17; 121 N. W. 652, 22 L. R. A. (N. S.) 1221; 172 Pac. 869; L. R. A. 1918 E. 400. Improvement for public use is not necessary. 191 S. W. 151; 127 Ark. 364; L. R. A. 1918 E. 400. If open to all ■who may desire to use it, it is a public highway, though it may accommodate only a limited portion of the public or even a single family. 13 R. O. L. 16, 33; Lewis on Eminent Domain § 166; 15 Ark. 43. An intent to dedicate for public nse may be inferred where the owner suffers it to be used by the public for a great length of time 13 R.C.L. 34; 198 S. W. 69, 5 A. L. R. 198. An easement is not limited to the traveled path, but carries with it the usual width of the highway in the locality. 29 C. J. 375; 388; 13 R. C. L. 58; 106 A. S. R. 418; 57 A. S. R. 740; 156 Ark. 501. Appellee’s fence is a nuisance and should be abated. 89 Ark. 175; 147 Ark. 290; 13 R. 'C. L. 186, 201. Appellants have the right to sue as they suffer special injury. 73 Ark. 1; 13 R. C. L. 227, 240; L. R. A. 1917A. 1150; 91 A. S. R. 46, 59 L. R. A. 399; 4 A. L. R. 343. Appellee should be compelled to remove the obstruction. 66 Ark. 40; 146 Ark. 300; 50 Ark. 53; 135 Ark. 496; 132 Ark. 316; 29 O. J. 379; 125 Ark. 50; 130 Ark. 64; 79 Ark. 5; 83 Ark. 369; 102 Ark. 553; 127; Ark. 364.

      Horace Slo'cm, for appellee.
    None of the appellants has the right to maintain this suit. 159 Ark. 335. The use of the Nelms property was permissive, and not adverse. He had the right to withdraw consent at any time. 83 Ark. 236. See also the opinion of the chancellor. There must have been some act by the public authorities to establish the road as a public highway. 74 Neb. 868, 105 N. W. 713; 78 Hun. 280, 28 N.Y.S. 858; 69 Tenn. 375; 92 Iowa 755; '23 N. H. 327; 112 N. C. 889.
   Wood, J.

This is an action by the appellants against the appellee for a mandatory injunction to compel the appellee to remove certain obstructions from an alleged public highway. The appellants alleged in substance that they were the owners of certain lands in the town of Black Oak, Arkansas; that there had been a road between their property and the railroad in said town for more than twenty-five years, which had been used1 by the public generally; that the appellant, Oiti-zens’ Gin Company, a corporation, had been operating a gin for many years, and-they would not have purchased the gin had there not been a public road leading to it from the main street in the town of Black Oak; that the property would be worthless without such outlet; that the appellee had placed posts in said right-of-way along close to a platform constructed on the railroad right-of-way; that, unless enjoined, he would close up the entire road, and appellants would suffer thereby irreparable injury; that all of appellants were financially interested1, and that their money was invested with the knowledge that said road was the public highway. They prayed that appellee be compelled to remove the posts which he had placed in the roadway.

The answer denied each of the allegations of the complaint, and set up that the posts were placed by the appellee on his own private property; that the appellants did not have any particular interest in the alleged road and would not suffer any peculiar injury which would entitle them to the relief prayed.

The trial court made the following findings:

“That this is a suit brought by the plaintiffs to restrain and enjoin the defendant from closing up what is alleged to be a highway by prescription located on a strip of land in the town of Black Oak, Craighead County, Arkansas,' lying between the south boundary line of the right-of-way of the J., L. C. & E'. It. Co. and the north fence, as now located1, in front of the residence property owned and occupied by the defendant, T. P. Nelms, the said residence property -of the said T. P. Nelms being bounded on the west by the store building of the Merritt Mercantile Company and partly on the east by certain gin property owned by the Citizens’ Gin Company; the court finds that the use of said property, in -so far as it has been used by the public, has not been adverse but permissive, and that said1 strip of land has not become a public road ¡by prescription, 'but that the same is the individual property of T. P. Nelms, free from any kind of public easement of right-of-way, and that the defend-
ant T. P. Nelms should no-t be required to remove the posts which he has placed on said strip of land.” The court thereupon entered a decree dismissing the appellant’s complaint for want of equity, from which is this appeal.

We pretermit the discussion of, or a decision on, the issue -as to whether the appellants had a right to maintain this action, for the reason that the conclusion We have reached makes it unnecessary. Conceding that the appellants had the right to institute this action, we are convinced that the decided preponderance of the evidence shows that they are not entitled to the relief which they seek.

There was a plat before the trial court which showed the lams in quo, and which has been brought into the transcript. We have examined, the same, and found it helpful in the determination of the cause. The testimony on the issue as to whether the public had acquired a right-of-way over the land of the appellee by prescription is quite voluminous, and it could serve no useful purpose to set out and discuss it in detail. The appellants contend that the alleged road was used by the public generally ten or fifteen years before the appellee acquired the fee to the land on which the alleged road is situated; that one George W. Mangrum, a former owner, had set his fence back so that the public could use the road, and had thus indicated his intention of dedicating the land to the use of the public, and that the public had used the same as a public highway without objection by the owner of the fee for twenty years; that the appellee was charged with knowledge of this use, and that such use vested a right to the easement in the public.

Upon examination of the testimony of Mangrum, we conclude that it does not sustain the contention of the appellants. He stated that he owned the property in 1909 and sold it in 1913. He had owned it ever since the railroad had been located there. He built the first fence along there in 1910, something near about the location of the present fence. Ho put the fence on that line because tbe people bad been using it, and be didn’t want to be “bull-beaded” — wanted to let tbe people have a passway. It bad been used to haul lumber some time. He recognized that tbe public bad been using it as a highway, and put bis fence on tbe line where it is now. Tbe land bad been used as a highway in tbe same way ever since the fence bad been put there. On redirect examination be pointed out on tbe plat tbe location of tbe posts placed by tbe appellee on tbe land in controversy, and stated that tbe people coming out around this way (indicating) created a mud-bole coming up the alley. They used that for unloading freight at tbe back door of the mercantile company. Tbe Merritt Mercantile Company bad their own private use in unloading stuff. People came in in the front of Nelms’ —most any one that would come along — go in there to tbe platform or switch to get tbe freight out. The mud-bole was created from ten to twelve years ago. Most of tbe way ran across the J., L. C. & E. Railroad. Witness was asked whether he put his fence up because it had become a road, and answered: “Not because it bad become a road — I didn’t want to shove my fence out and shut people-off.” Witness was willing for them to use it at that time. No one asked witness’ permission. There wasn’t any objection then nor later, so far as witness knew. When the public was using the territory in, front of tbe appellee, they were also using part of tbe right-of-way at the same time. After a period of time they got to running over on the Nelms property — about the time or after tbe witness first owned tbe property, got to stacking lumber against tbe track, and, in order to do that, they bad to back off on Nelms’ property. There had been no general use of the land where the mud-hole is for tbe last year. They bad been going on the right-of-way for tbe last year or so, but that had not interfered with tbe passway actually used. There bad1 been a defined road across Nelms’ property probably -since tbe railroad right-of-way. Tbe mud-hole on Nelms’ property was created by tbe public travel. If the passageway were closed up between Nelms’ fence and the railroad track, it would not inconvenience the public. The way was obstructed in 1919 because they, shipped lumber in and sometimes four or five freight ears. . The part along Nelms’ property had never been obstructed altogether. Witness further testified that he didn’t think it would inconvenience the public generally to close the road. He stated! that the people could not get on the property in front of Nelms’ without trespassing on the railroad right-of-way.

The testimony of the county judge of Craighead County was to the effect that the road in controversy had never been worked by the county authorities as a' public road. This witness was asked “if the gin and the cantaloupe shed were removed, would that be used as a highway at all?” and answered: “My observation has been that that road has been used! as a matter of convenience for the railroad in unloading carloads of stock and materials, and for the benefit of the gin and cantaloupe shed. The cantaloupe industry is just a recent thing. The platform for loading cotton was used for the last five or six years. The gin has been there a long time. When they first started using this, they would drive in where the Merritt Mercantile Company is now. ’ ’ This witness, further along in his testimony, .stated, with reference to the space in front of appellee’s property, “they rode all over it at one time on one part and later on another part. It was just like any other open territory not fenced — could drive on any of it. The road was usually used for business, and the business was along the right-of-way. There was nothing to obstruct them. They could go on Mr. Nelms’ property if they saw fit.”

It is unnecessary to set out more of the testimony. We have examined it all, and are thoroughly convinced that the finding of the trial court to the effect that the use of the roadway by the public had not been adverse, but permissive, is not against a preponderance of the evidence. In Brumley v. State, 83 Ark. 236, among other things, we said: “When the public use a road running through open and unfenced lands, without any order of the county court making it a public road and without any 'attempt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent. When he needs the land, he may withdraw his consent, fence the land, and exclude the public without violating the law.”

In Sharp v. Mynatt, 1 Lea (Tenn.) 375, it is held, (quoting syllabus): “Mere user by permission of landowner of a way over his land1 cannot establish a right to a public way, unless such user is shown by facts and circumstances showing the user by the public under a claim of right, and not simply by permission, actual or tacit, of the owner. The fact that the road had never been worked, repaired, taken control of by the public, or overseers appointed, is an important element of evidence against such claim of right, though not conclusive.” See also State v. Nudd, 23 N. H. 327; K. C. & O. Ry. Co. v. State, 74 Neb. 868; Harriman v. Howe, 78 Hun 280.

In the last cited case it is said (quoting syllabus): “Proof of user alone of a road is insufficient to show it to be a public highway. It must be associated with some act showing such use to be claimed as a right, hostile to and independent of the will of the owner, such as reparation or assuming the control of the road in some ostensible manner.” There is nothing in the testimony to show that the public was claiming the roadway in controversy adversely to the appellee.

The appellants ’ case falls down on the failure to prove an adverse use by the public of the roadway in controversy for a period of seven years. For aught that the testimony shows to the contrary, the use by the public of the alleged roadway was only permissive and temporary. In this respect the case is clearly differentiated from the cases of Osceola v. Haynie, 147 Ark. 290; Mebane v. City of Wynne, 127 Ark. 364; McCracken v. State, 146 Ark. 300; Peeples v. Aydelott, 125 Ark. 50; Ry. v. Taylor, 130 Ark. 64; Road District v. Winkler, 102 Ark. 553, upon which, the appellee relies.

The testimony in this record does not warrant a finding that the gin company had acquired a right-of-way over appellee’s land by adverse use. The decree is in all things correct, and it is therefore affirmed.


author: Haht, J.,

text:
    Moliter v. People’s Building & Loan Association.
    Opinion delivered February 23, 1925.
    1. Building and loan association — by-laws as part of contract. —The by-laws of a building and loan association at the time ■of execution of a contract for a loan are part of its contract, and must foe read in connection with it.
    2. Building and loan association — bond of borrower. — Though a by-law of a building and loan association provided -only for the execution of a bond by the borrower for payment of labor and materials on a contemplated improvement, this did not impliedly prohibit an additional contract that the foorrower should expend the entire amount borrowed in making the improvement.
    3. Estoppel — silence.—A building and loan association will not ibe estopped to set up a breach of covenant to expend the entire sum borrowed in making certain improvements by having said nothing to the 'borrower’s sureties about the alleged failure to make such expenditures for more than a year, as silence will operate as an estoppel only when there is a duty to speak.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    People’s Building & Loan Association brought this suit in the circuit court against E. C. Hornor and J. S. Hornor, as principals, and E. P. Moli'tor and Jas. C. Rembert as sureties, on a construction bond, to recover the sum of $10,000, alleged to be due for money advanced by said association to the principals on said bond.
    E. C. Hornor and J. S. Hornor made application to the People’s Building & Loan Association o.f Helena for an advance on their 400 shares of stock in the sum of $10,000. They proposed to secure the payment of the loan by a lien upon five lots, specifically described, situated in that part of the city known as West. Helena. They agreed further to keep insured the buildings which were to he erected on said1 property for such amount as-the board of directors of said building and loan association might require. People’s Budding & Loan Association accepted the loan under the terms prescribed in the application. E. C. Hornor and J. S. Hornor, as principals, and E. P. Molitor and Jas. 0. Rembert, as sureties, executed a bond to the People’s Building & Loan Association in Helena, Ark., in the sum of $10,000. The bond is conditioned as follows: “Whereas the said E. C. Hornor and J. iS. Hornor have borrowed of the said People’s Building & Loan Association the sum of ten thousand and no/100 dollars for the purpose of erecting five houses on the following described lots or parcels of land situated in Phillips County, Arkansas, towit: (Here is inserted a description of the lands.)
    “And whereas the said E. C. Hornor and John S. Plornor desire to secure the payment of said money by executing a mortgage on the property as improved as aforesaid.
    “Now therefore, if the said E. 'C. Hornor and J. S. Hornor shall well and truly expend the said sum of $10,000 in making said improvements, as aforesaid, and shall thereby cause said property to be increased in value to the extent of $10,000, and shall pay or cause to be paid all amounts that may be due for labor or materials so used in erection or improvement of said buildings, and shall cause the same to be freed of all liens for such labor or materials, and shall- cause to be issued and delivered to said association policies of insurance ag-ainst loss by fire and tornado, as required in said deed of trust, then and in that event this obligation shall be null and void, otherwise to be and remain in full force and effect.”
    We incorporate into our statement of facts a portion of § 12 -and the whole of § 53 off the by-laws of said building and loan association.

      ‘ ‘ Section 12. Whenever a loan is made for 'building purposes, all contracts shall be first submitted to the board of directors for their approval, and, as the building progresses, the building committee shall see that the work is properly done, and audit the bills in favor of the contractor. Before, however, paying any part of such loan, the contractor, contractors, or borrower must be required to give a bond to indemnify the association against liens of mechanics and materialmen. The sufficiency of such bond shall be ¡determined by the board. Whenever a bill for any such work is presented to the secretary with an order to pay same written on the bill, signed by the borrower and the chairman of the building committee, the secretary shall issue his check for the amount. The cheek must be countersigned by the president before being paid by the treasurer.”
    “Section 53. The building committee shall examine all the plans, specifications and contracts of the' members, and shall exercise a general supervision over all buildings which are in course of erection by the association. All matters relating to plans, estimates and materials, repairs, etc., shall, before being passed upon by the board, unless otherwise ordered, be referred to them for examination. The chairman of this committee shall audit all bills pertaining to buildings being erected by the members before such bills can be paid by the secretary’s check.”
    The $10,000 was advanced to E. O. and J. S. Hor-nor in April, 1920. They used the sum so advanced in their business, and failed to erect any buildings on said lots for the period of more than a year after the advancement of the $10,000 was made. E. 0. and J. S. Hornor then began the erection of houses on said lots, but very inferior materials were used.
    The present suit was instituted on June 21, 1921. On motion of the defendants, the case was transferred to the chancery court and tried there. The chancellor found the ¡issues in favor of the plaintiff, and a decree was entered of record in its favor. The case is here on appeal. *

      P. II. Andrews and J. G. Burke, for appellant.
    The 'by-laws of tbe appellee are to be considered a part of tbe bond executed by tbe appellant assureties. 105 A irk. 140; 113 Ark. 400; 103 IT.S.222; Thompson on Corp. (2nd Ed.) vol. 1, § 979', p. 1191; 4 R. O. L. "§ 4, p. 344; 95 N. W. 230; 6 R. C. L. § 240, p. 85. Tbe sureties are released from tbe bond for the reason that tbe appel-lee failed to comply with its by-laws, sections 12 and 13 in particular, 159 Ark. 405; 74 Ark. 600; 4 Pa. St. 348; 112 Ark. 207; 113 Ark. 429; 123 Ark 486; 93 Ark. 472. Appel-lee 'has been guilty of such acts and conduct as would create an equitable estoppel to prosecute and maintain this suit. 33 Ark. 465; 125 Ark. 146; 155 Ark. 172; 89 Ark. 349; 83 Ark. 548.

      W. G. Binning, for appellee.
    Estoppel not having been interposed as a defense in the lower court, appellant cannot now insist upon it. 12 Ark. 769; 152 Ark. 1. In any event, mere silence will not work an estoppel. 10 R. O. L. 693-694. To have the benefit of an estoppel, one must show diligence and good faith, 10 R. C., L. 696-697.
   Haht, J.,

(after stating tbe facts). Tbe by-laws of tbe People’s Building & Loan Association! incorporated in our statement of facts were in existence at the time tbe contract in this case was executed, and became a part of tbe contract. Therefore they must be read in tbe light of each other.in construing the contract.

It is tbe contention of counsel for tbe defendants that, when tbe by-laws are read .into tbe contract, tbe two in effect provide that tbe sole object of the execution of tbe bond was to protect tbe association against the liens of laborers and materialmen in tbe construction of tbe buildings to be erected upon tbe lots in question. In making this contention they referred to that part of § 12 which reads as follows: “Before, however, paying any part of such loan, the contractors or borrower must be required to give a bond to indemnify tbe association against liens of mechanics and materialmen.” “Such loan” means tbe loan made to tbe borrower for tbe purpose of erecting' buildings on the lots described in the application. "When tlie clause of the by-laws just quoted is read in connection witb tlie conditions of tbe bond, it will be noted that tbe terms of tbe bond are broader than warranted by tbe by-laws. In other words, tbe by-laws only provide for tbe execution of a bond to indemnify tbe association against tbe liens of mechanics and materialmen. The terms of the bond go further and provide that the borrower shall expend the whole of the $10,000 in making the specified improvements on the lots and thereby cause the property to be increased in value to the extent of $10,000. It then provides that the signers of the bond shall pay or cause to be paid all amounts due for labor or materials used in the erection of the buildings.

The parties were capable of contracting between themselves, and there is nothing in the by-laws to prevent said building and loan association from requiring a bond that the borrower shall expend the amount borrowed in making the proposed improvements on the property, in addition to paying all amounts due for labor and materials used in the erection of the buildings. If the sureties only wished to become liable for the amount of laborers’ and materialmen’s liens on the proposed buildings, .-they should have signed a bond which restricted them to liability to that extent. Having signed a bond conditioned that the borrower should expend the amount borrowed in making certain improvements, they are liable for any default by their principal in failing to carry out the conditions of the bond.

It cannot be said that, because the by-laws only provided for the execution of a bond for the payment of labor performed and materials used in the erection of the buildings, this is an implied prohibition against executing a bond, not only for that purpose, but containing the additional covenant that the borrower should expend all of the $10,000 in making the improvements. It is true that the building and loan association was not required to take a bond having this additional covenant, but it was not ultra vires for it to do so. Therefore, having written into the bond a covenant that the principals should expend the sum of $10,000 in making the improvements, the sureties are liable for default therein.

It is next contended that the plaintiff is estopped from making this contention because it allowed a period of more than one year to elapse without saying anything to the sureties about the alleged default. This did not make any difference. In order that mere silence may operate as an estoppel in equity, it is necessary that one should maintain silence when in conscience he ought to speak. In short, it is only when the party is under a duty to speak that mere silence will operate as an estoppel. Pettit-Galloway Co. v. Womack, 167 Ark. 356.

To illustrate: 'Suppose the building and loan association had approved a contract for the erection of the buildings as 'contemplated in the application for the loan, and its building committee had approved the plans and specifications, it could not then have urged that the whole of the amount borrowed had not been expended in making the improvements.

Again, if it had exercised a general supervision in the course of the erection lof the proposed buildings, it could not wait until they had been completed and then complain that inferior or faulty materials had been used in the construction of the buildings.

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Paschal v. Munsey.
    Opinion delivered February 23, 1925.
    1. Counties — Refund of erroneous taxes. — Where the taxes for county purposes were assessed on the usual 50 per cent, basis, and were doubled by order of the levying court, a proceeding by taxpayers for a refund under Crowford & Moses’ Dig., § 10180, was proper, the double assessmtent being unauthorized and erroneous within the statute.

      2. Taxation — when payment not voluntaRY. — The payment of taxes under an erroneous assessment without objection to the levying of ithe tax was not voluntary within the rule that prohibits the recovery of taxes voluntarily paid, siilce the collector could and would have sold the property assessed for nonpayment of the taxes.
    3. Taxation — payment voluntary when. — Payment of taxes by a railroad company under an erroneous assessment not objected is voluntary since the illegality could be set up as a defense in an .action to enforce the collection.
    Appeal from Perry Circuit Court; Marvin Harris, Judge;
    judgment modified.
    J. E: Brasil and W. H. Donhmi, for appellant.
    •Crawford & Moses’ Digest, § 10180, has no. application to this case. Appellees do not seek the refund on the ground that the doubling of the assessed values constituted an erroneous assessment, hut solely on the grounds that the action of the quorum court in making a levy of two and one-half mills for a “county redemption fund” was illegal and void. Such being the case, appellees should have objected to the levy, as provided in C. & M. Digest § 9870, 9871. That levy was not erroneous within the meaning of § 10180, supra, 90 Ark. 413. Appellees can not recover the refund because the payments were voluntary. G. R. I. & P. Ry. Go. v. Brazil, ms. op. Nov. 24,1924; 107 Ark. 24; 97 U. S. 181; 98 U. S. 541; 143 Ark. 435; 145 Ark. 185; 153 Ark. 337; 130 Ark. 520; 95 Ark. 501; 86 Ark. 165; 74 Ark. 270; 48 Ark. 70; 37-Cyc. 1178-79.

      G. B. Golvin, for appellees»
    The payment of the excess amount of taxes was the result of an erroneous assessment, within the meaning of C. & M. Digest § 10180. Bouvier’s Law Diet.; “Erroneous.” We agree that 90 Ark. 413 should largely control here. Certainly the quorum court exceeded its jurisdiction, and its act in doubling the assessment for the county tax was erroneous, and would have been erroneous even if done by the county assessor in the regular way. 162 Ark. 443. We confess error with respect to excess payment made by the receiver for Fourehe River Wiley and I; T. Ry. Co., since under the previous holding of the court in Railway v. Bazil, that payment was voluntary, hut as to all other appellees the payments were involuntary, and they were entitled to have the excess refunded, 1Ó7 Ark. 24.
   Smith, J.

Appellees, eighty-four in number, filed a joint petition in the county court of Perry County for the refund of taxes paid hy them for the year 1922, and, upon the appeal from the judgment of the county court to the circuit court, the cause was heard on an agreed statement of facts, from which we copy the following essential recitals:

Con Crahel had recovered a. judgment in the United States District Court for the Eastern District of Arkansas, ¡Western Division, against Perry County, and, to secure its enforcement and payment, a mandamus had been issued to the assessing officers of that county, directing that an assessment for county purposes be made of 100 per cent, of the market value, instead of 50 per cent., as is customary. Such an assessment had been made for the taxes for the year 1921, and sufficient revenue had been raised to satisfy this judgment.

An assessment for 1922 taxes had been made on the customary basis of 50 per cent, of the market value of the property assessed, when the levying court, at its regular session for levying taxes at the October term, 1922, entered an order directing the county clerk to double this valuation for county purposes, and to extend the taxes on that basis.

Pursuant to this order, the county clerk, in making up the taxbooks, doubled the valuations made by the assessing officers for county purposes, and the collector proceeded to collect the taxes on that basis. No notice was given that the levying court intended to take this action, and it is stipulated that the taxes would not have been received by the collector on any other basis, and that, had the taxpayer “failed and refused to piay the tax caused and occasioned by said increased valuations, all of the property (of appellees) subject to said taxes would have been' immediately seized and sold for said increased taxes and the other taxes against said property for the year 1922, as provided 'by law.”

Petitioners made no objections to the levying of the tax by the levying court under §■§ 9870, 9871 and 9872, O. & M. Digest, but brought this proceeding under § 10180,, C. & M. Digest.

As a part of the agreed statement of facts, ia schedule was attached showing the amount of tax paid by each petitioner for county purposes as a result of this order of the levying court.

It was further stipulated that the county treasurer had in his hands these funds.

The court below rendered ia judgment awarding the relief prayed, and the county has appealed.

For the reversal of the judgment of the circuit court it is very earnestly insisted that § 10180, O. & M. Digest, under which petitioners proceeded, does not authorize the proceeding, for the reason that the assessment complained of is not an erroneous assessment within the meaning of that statute.

By this section it is provided that “in case any person has paid or may hereafter pay taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact, the said court shall make an order refunding to such persons the amount of the county tax so erroneously assessed and paid, * * We think this proceeding is authorized by that section, and the taxes which petitioners seek to recover were paid' under an “erroneous assessment” within the meaning of that section.

In the case of Clay County v. Brown Lumber Co., 90 Ark. 413, the taxpayer complained of an overvaluation, and proceeded under § 7180, Kirby is Digest (which is now § 10180, C. & M. Digest) for relief, but relief wias denied upon the ground that this section of the statute was not intended to afford relief in such cases, for the reason that an excessive valuation was not an erroneous assessment within the meaning: of that statute. The court defined what was meant by an erroneous assessment, and, in doing so, said: “It is urged by the appellee that an excessive valuation of property is an erroneous "assessment thereof within the meaning of § 7180 of Kirby’s Digest, so that a remedy is here given to one who has paid taxes under these circumstances, by having the taxes refunded. But we do not think that the term ‘ erroneously assessed/ as used in said section, refers to an overvaluation of the property. The term ‘erroneous assessment/ as there used, refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional f.n its nature; and does not refer to the judgment of the assessing officers in fixing* the amount of the valuation of the property.”

The levying court had no authority to double the valuations. ■ The judgment of the Federal court had been paid, but, if it had not been paid, the court was without authority to change the valuations.

In the case of Summers v. Brown, 157 Ark. 509, it was said: “It may also be observed that the quorum court (the levying court) had no authority whatever to assess or approve an assessment of value for the purposes of taxation.”

And in the case of State ex rel. Craighead County v. St. L. S. F. R. Co., 162 Ark. 443, where there was an outstanding unsatisfied judgment of the Federal court and a mandamus pursuant thereto directing the assessing officers to double the regular assessment of value for county purposes, we held that this order could be executed only by the proper assessing officer.

The principles announced in the case of Dickinson v. Housley, 130 Ark. 259, support the judgment of the court below in this case.

It is insisted that the refund of the taxes so erroneously assessed should be refused for the reason that they were paid voluntarily. We have held, however, that, where the collector could have sold the property assessed for the nonpayment of the taxes, and would have done so if they had not been paid, that action would have constituted a cloud on the title, to prevent which the owner had the right to pay the taxes and to thereafter sue to recover them. White River Lbr. Co. v. Elliott, 146 Ark. 551; Walton v. Arkansas County, 153 Ark. 285.

The last-mentioned case is cited by counsel for appellant as authority for holding that the tax here in question cannot he recovered back. That case was one in which a taxpayer had proceeded under § 10180, C. & M. Digest, to recover a special road tax which he had paid the tax collector, of ten cents tan acre, levied by a special act of the General Assembly on all lands in Arkansas County belonging to nonresidents of 'that county. We there held that relief could not be afforded the taxpayer, although the tax was illegal, but we did so for the reason stated, that the tax sought to be recovered was not assessed within the meaning of that statute, as it had no relation to and was not dependent upon the value of the lands and had not been levied by the usual assessing officers, but was a tax which the Legislature had itself fixed on an arbitrary basis.

It appears, from the facts herein stated, that this litigation arises out of facts very similar to those stated in the opinion of this court in the recent case of C. R. I. & P. Ry. Co. v. Brazil, 166 Ark. 246, and it is insisted that inasmuch as we there held that the railroad company could not recover back the tax it had paid, for the reason* that the payment was voluntary, we should, for the same reason, hold here that these petitioners cannot recover. This does not follow. We there pointed out the difference in procedure in enforcing payment of delinquent taxes due by railroads from that employed against other taxpayers, and we need not repeat here what we there said. It suffices to say that, because of this difference in procedure, the payment by the railroad company was voluntary, whereas the payment by petitioners was not.

It does appear, however, that one of the petitioners operated a short line railroad as receiver, and that $315.23 of the taxes paid by him was paid on this railroad property. It is therefore conceded by the attorney for the receiver — upon the authority of C. R. I. & P. R. Co. v. Brazil, supra — that the taxes paid by the receiver on this railroad was voluntary, and that the' judgment in the receiver’s favor must be reduced to this extent, and it will be so ordered. In all other respects the judgment of the court below is correct, ¡and will be affirmed. It is so ordered.