author: Hart, J.

text:
    State v. Moore.
    Opinion delivered October 27, 1924.
    Master and servant — enticing away labor. — Under Crawford & Moses’ Dig., § 6570, prohibiting any person from interfering with, enticing away, knowingly employing or inducing a laborer, who has contracted with another person for a specified time, to leave his employer before the expiration of his contract without the consent of the employer, one who knowingly employs a laborer to leave his employer before the expiration of his contract is guilty.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    reversed.

      J. 8. Utley, Attorney General, John L. Garter, Assistant, and John W. Moncrief, for appellant.

      J. M. Brice, for appellee.
   Hart, J.

S. H. Moore was convicted in a justice of the peace court for enticing away a laborer, in violation of our statute, and appealed to the circuit court.

According" to the evidence for the State, on the 5th day of M'ay, 1924, J. A. Price employed a negro named George Butler to. work for him in putting in and making a rice crop.' Price hired Butler by the month, and was to pay him $35 per month to help put in the crop. "When the pumping season began he was to pay him $2 per night and board until that season was over. Alter George Butler had worked three weeks, Price paid him $15 on account. This was on Saturday, the 24th day of May, 1924, and Butler went to town with the distinct understanding that he would be back for work early the next Monday morning. Butler never came back, and the defendant told Price that he had employed Butler for $2.50 per day to help him in getting out timber. Price saw the defendant driving by his place a day or two before Butler quit. Butler had worked for the defendant during the timber season in the fall of 1923.

Other witnesses for the State testified that Moore came into the neighborhood in May, 1924, and was looking for some negroes who had worked for Mm in getting out timber during the previous fall. He inquired about George Butler, and was told that Butler was employed by the month by J. A. Price.

Another witness testified that the defendant told him on the Sunday morning that he hired Butler that he knew that Butler was working for Price, and that he would not.hire him without his consent.

Evidence was adduced by the defendant tending to show that George Butler quit working for Price of his own accord, and, after he had quit, the defendant hired him to work for him.

The court instructed a verdict of acquittal, and the State has appealed.

The court stated specifically that the fact that the defendant knew that Butler was employed by Price, and with that knowledge gave him employment, before his contract had expired with Price, together with the other circumstances adduced in evidence, would not warrant a verdict of guilty.

The court was mistaken in its view of the law. Our statute provides that, if any person shall interfere with, entice away, knowingly employ, or induce a laborer who has contracted with another person for a specified time, to leave his employer before the expiration of his contract, without the consent of the employer, he shall, upon, conviction, be fined not less than $2-5 nor more than $100. Crawford & Moses’ Digest, § 6570.

This court has held that one will not become guilty under the statute of enticing away a laborer who has quit his employer’s service; but that he is guilty if the enticement is made while there exists a valid contract for continued service known to the defendant. Johns v. Patterson, 138 Ark. 420; Johns v. Patterson, 145 Ark. 46; and Griffin v. State, 160 Ark. 166.

In the latter case the facts were that Griffin, with knowledge that Hutson had been employed by Cox & Alexander for the year 1923 to make a crop, and before Hutson had quit the employment, began negotiations with Hutson, without the consent of his employers, to go with him to the State of Mississippi and work for him there. The court expressly- said that the existence of these facts brought the case within the operation of the statute, and that a verdict of guilty was warranted both as to the law and the evidence.

The facts in the instant case are precisely the same in all essential respects, and the* court erred in telling the jury as a matter of law that the defendant was not guilty of a violation of the statute. The guilt or innocence of the defendant should have been submitted to the jury as a question of fact to be determined by it.

It follows that the judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Britton v. Meriwether.
    Opinion delivered October 27, 1924.
    1. Pleading — amendment to conform to evidence. — Where the parties to a partition suit testified in the suit, and it appeared that one tract intended to be partitioned was omitted from the complaint, but it was included in the decree for partition, it will be presumed that the court treated the complaint as amended to conform to the admitted facts.
    2. Judicial sale — inadequacy of price. — Mere inadequacy of price is no ground for setting aside a judicial sale unless it is so gross as to raise a presumption of fraud or unfairness.
    Appeal from Lawrence 'Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      W. M. Ponder and W. F. Beloate, for appellant.
    The court erred in not setting the sale aside. 31 Ark. 272. A proceeding to correct a record by nunc pro tunc entry will not lie to supply errors and omissions in the original proceeding, and if there were errors or omissions in the original decree of partition, the sale thereunder was without foundation and cannot be supplied by nunc pro tunc entry. 159 Ark. 218.

      Cumnngham & Cwmingham and Ponder S Gibson, for appellant.

      . A court has authority at any subsequent term to correct its records by the entry mmo pro time of the .judgment that was rendered at a former term. 118 Ark. 593. In the absence of fraud a sale for an inadequate price is not g'round for a resale. 56 Ark.' 240; 47 Ark. 93; 20 Ark. 381; 44 Ark. 502; 108 Ark. 366; 123 Ark. 523. After confirmation of a sale every presumption will be indulged in favor of its fairness. 90 Ark. 166; 118 Ark. 449; 131 Ark. 397; 131 Ark. 478. A bidder becomes a party to the sale and may be compelled to stand by the offer he has made. 77 Ark. 216.
   Smith, J.

In 1920 appellants, who are the children and heirs at law of W. L. Conrey, brought suit to partition certain lands- owned by- their father, a part of the lands being owned by him in severalty, and others as a tenant in common with T. J. Sharum. The complaint described the lands owned by their father in severalty, and alleged that each of the plaintiffs was the owner of an undivided third interest; and the complaint also described the lands owned by Sharum and their father as tenants in common. The first mentioned lands contained 120 acres, and the last mentioned contained 360 acres,, and all of it was in the same section.

There was an error in the description of this land, as it appeared in the complaint, and, as a result of this error, forty acres of the land owned by Sharum and the plaintiffs’ ancestor was omitted from the complaint. There was never any controversy about the respective interests of the parties or the description of the land which they owned.

Sharum filed no answer, but personally appeared in court, where he and other witnesses testified at the hearing then had, and the court found that the lands could not be partitioned in kind, so a sale was ordered, and a commissioner was appointed to make the sale. The decree ordering the sale correctly described the lands, but did not adjudge the respective interests of the parties. This decree was rendered May 31, 1921.

A sale was made by the commissioner on July 16, 1921, pursuant to the directions of the decree of sale, and at this sale the- land was first offered in forty-acre tracts, and Sharum was the highest bidder for each tract, his bids totaling* $2,250. After thus offering the land for sale, the commissioner offered all of it as a single tract, and Sharum was again the highest'bidder, his bid being $2,250.

The commissioner reported the sale to the court as having been made on a credit of three months, but he did not take the note of the purchaser as the decree directed. "When the commissioner presented the certificate of purchase to Sharum, he declined to execute a note, stating that he owned a. half interest in most of the land', and had paid the taxes on all of it, and that the title to a part of the land might not be good, but he did pay the commissioner $900 in cash.

The report of the commissioner came on for confirmation, and was approved by the court on the 3rd day of the April term, 1922. The commissioner was directed to execute a deed, and this he did, and the same was acknowledged in open coxirt.

It appears that the various orders of the court above referred to were either.never prepared by the attorneys for the clerk to enter or were not entered of record by the clerk if prepared, and thus the matter stood until the April, 1923, term of the court, when the executors of Sharum, who had died in the meantime, filed petitions for the entry, nunc pro tuno, of the court orders above referred to.

There appears to be little controversy about the facts stated above; but there is considerable conflict as to the value of the lands.

The heirs of Conrey, who were the plaintiffs in the original suit, filed .answers to the various petitions for mum pro tw%c "orders, and also filed exceptions to the confirmation of the commissioner’s report, and offered testimony tending to show that the lands had sold for a grossly inadequate price. This testimony related, however, to certain specific tracts of land, and not to the whole of it.

It is now insisted that the court did not acquire jurisdiction of the forty-acre tract omitted from the complaint, and that the sale to Sharum was void because he abandoned his purchase by failing to execute the note and by not offering to comply with his bid until the filing of the petitions for .the mmc pro turne orders.

The court made the nunc pro tunc orders as prayed, and this appeal is from that decree.

We think the court had jurisdiction to order the sale of the land omitted from the complaint. The court found that the parties appeared and testified in open court. The .appellants were the plaintiffs there. They prayed for the partition or sale of the lands. There was no dispute or uncertainty a/bout the description of the lands or the respective interests of the parties, and the decree of sale for partition correctly described the lands. Evidently the court treated the complaint as amended to conform to the admitted facts as shown by the testimony then heard.

The court found that the respective interests of the parties were adjudged as required by § 8100, C. & M. Digest, and that the report of the sale had been duly approved and confirmed, and that the commissioner had been directed to execute a deed, and that the deed had been approved, and it was ordered that decrees be entered mmc pro tunc showing these facts.

Pending the hearing of these petitions, the attorneys for the executor waived in open court any claim for the taxes paid by Sharum on the interest of his co-tenant, and the balance due on the purchase price was tendered into court, whereupon the court directed that the deed, which had been previously executed and approved but not delivered, should be then delivered, and this was done.

We find nothing in this proceeding which calls for the reversal of the decree of the court below. In making these mmc pro tucnc orders the court merely directed that a proper record be made of what had been previously adjudged. Sharum should, of course, have been required to execute the note as ordered by the original decree of sale; but there is nothing in the testimony to show that he abandoned his purchase. His payment of $900 to the commissioner refutes that contention. He should, of course, have allowed the court to adjudge what part of his bid should be finally paid after allowing him credit for the taxes; but these were questions which should have been raised when the report of the commissioner came on for confirmation. Evidently no credit for these tax payments was allowed Sharum when the report of sale was confirmed, but he waived this omission by agreeing in open court that no account should be taken of them. Upon payment of the balance due on Sharum’s bid, which was tendered and paid into court, he became entitled to the delivery of the deed which the court had previously approved.

Upon the question of inadequacy of price, it suffices to say that the testimony does not show such gross inadequacy of price as to raise a presumption of fraud or unfairness, even though this question had been raised when the report of sale came on for confirmation, as it should have been. Gleason v. Boone, 123 Ark. 523.

No error appears, so the decree directing the entry of nunc pro tunc orders is affirmed.


author: Wood, J.

text:
    Dent v. Bowers.
    Opinion delivered November 3, 1924.
    1. Highway — right of adjacent owner. — Subject to the easement of the public in a street to use and enjoy it as a highway, the fee therein belongs to the owners of adjacent lots.
    2. Fixture — filling station. — A gasoline filling station, consisting of a 500-gallon tank buried under the sidewalk and a pump connected with such tank, not being removable without permanent injury to the freehold, will be held, in the absence of an agreement to the contrary, to be a fixture and to pass as an incident to the conveyance of the lot on which it is situated.

      Appeal from Lawrence Chancery Court, Western District; Lyman F. Reeder, Chancellor;
    reversed.

      W. F. Beloate and Geo. G. Dent, for appellant.

      Cunmngham é Cunningham, for appellee.
   Wood, J.

On the 25th of September, 1922, Clay Henderson conveyed to George G. Dent, by warranty deed, a certain lot or parcel of ground in the town of Imboden, Arkansas, lying at the corner of Main Street and the alley dividing block 2 east -and west on the north side of the alley. The lot is particularly described in the deed. Situated on the lot was a two-story brick building, fifty-one feet front by seventy feet deep. At the time of the purchase the building was occupied by G. W. Bowers under an oral lease from Clay Henderson. Bowers was using the lower.floor of the building as a garage. After purchasing the property, Dent and Bowers could not agree upon the rent, and Bowers began the construction of another building for a garage, and claimed that he owned a certain pump and gasoline tank designated as a “filling station,” having purchased the same from one O. H. McKamey, a former tenant, and also that he owned certain indoor fixtures which he had purchased from Henderson. He was threatening to remove this filling station and the alleged indoor fixtures to, his new garage when Dent instituted this action to restrain him from so doing.

In his complaint Dent alleged that he was the owner of the property claimed by Bowers; that same was included in his purchase from Henderson. Bowers denied that Dent was the owner of the property, and the issue thus joined was submitted to the trial court upon substantially the following evidence:

Dent testified in his own behalf. He introduced the deed -above mentioned, and testified that, under the sidewalk and gutter of the street, was a gasoline tank used in connection with the garage. The pump to the tank was situated on the outer edge of the pavement, and -the concrete pavement extended to and was joined to the building. There was a partition running up to the ceiling to cut off the office and the place for materials used for the repair of cars. There were also cabins for bolts and counters and shelving. The shelving and also the partition were attached to the building. The counters were held by their own weight, but were a part of the partition. The counters and partition could not be removed without damage to. the building. The gasoline tank could not be removed without damage to the building and sidewalk in connection therewith. These things were taken into consideration by him when he purchased the lot. He did not know at the time of his purchase that Bowers claimed to own the property.

Clay Henderson testified that, at the time he sold the property to Dent, he did not own the gasoline tank. The building was erected fifteen years ago, and the .tank and filling station were put up in 1917. It is in no way connected with the building, and is at' least five feet from the property line. He did not consider that he owned the shelving, counters, bolts and part cabins used in the garage. He sold all the stock and. fixtures to Hill Brothers. He stated that Dent was aware of the fact that witness did not transfer title to the fixtures and the gasoline tank and filling station. Witness was asked if anything was said by him to Dent at the time of the sale or before in regard to the ownership of the gasoline tank and fixtures, and he answered: “Dent at numerous times talked to Gr. W. Bowers and a real estate agent at Imboden relative to this property. In fact, the deal was practically made by these parties. They had witness ’ terms, and he only talked to Dent on two occasions previous to the closing of the deal, at which time he told Dent about the gasoline tank and fixtures to the building. ’ ’ Witness was further asked to state what he said, if anything, to Dent at the time of the trade as to what went with the building, and stated: “At the time the deal was made they were placing a concrete floor in the front end of the building, and I tried to get Mr. Dent to assume payment of this amount. He refused, and the deal went through with me paying this amount, and he realized that that was all about which there was auy controversy.” Witness further stated that he transferred the title to the tank by a bill of sale to Hill Brothers in 1918. They occupied the building under an oral contract of lease, and sold to Oscar McKamey. He occupied the building under the same kind of contract as Hill Brothers. He sold to G-rover Bowers, and Bowers rented the premises from witness under oral contract until witness sold the property to Dent. Witness was asked to give a complete detail of his contract of sale to Dent, and stated that he prepared the deed himself. Dent understood that he was only getting the building, and witness did not try to pass title to Dent to the fixtures or gasoline station, and Dent knew and realized that he was not obtaining title to anything but the building.

'Bowers testified that the gasoline tank and filling station belonged to him. He purchased it from McKamey. He was asked if Dent knew that this property belonged to witness before Dent bought the property from Clay Henderson, and answered: “I think he did, yes sir.” Witness was sure that he had talked to Dent about it when he bought McKamey’s garage, and he personally talked with Dent and Henderson at the time Henderson sold the building to Dent, and the building was all that was mentioned in their deal, so far as he knew. The gasoline tank and filling station were at the outer edge of a seven-foot sidewalk. The sidewalk was torn up when the tank was installed, and it could be easily removed without damage to the building. There was a seam in the concrete sidewalk where the same was cut to put the tank in, which would enable one to take out the tank and replace the sidewalk just as it was. Witness further testified that the counters and shelving belonged to witness. He bought these from Henderson. Part of these were tacked to the ceiling with small nails, and could easily be removed without damage to the building. Dent knew that these fixtures belonged to witness. Further along in his testimony witness stated that he built the partition and cabinets in the building and glassed half of the shelving since he had been in the building. The concrete sidewalk was laid up against the ■ concrete foundation of the building. It was put there after the building was built. The sidewalk was in the street, and the tank and filling station were in the street. The tank was buried in the street just outside of the sidewalk, about half of the tank being under the edge of the walk. The concrete had been cut to put the tank in, and the part replaced after it had been buried, leaving a seam in the sidewalk. No connection was made with the building, but the pump was placed at the outer edge of the sidewalk.

McKamey testified that he bought the gasoline tank and filling station from Hill Brothers and sold the same to Bowers. Witness remembered about Dent going to his office and talking about the gasoline tank and other fixtures. Witness had an idea that that was after Dent had bought the lot from Henderson.

In rebuttal Dent testified that Henderson did not say one word to him at the time be bought the property about the sale of any fixtures or the sale of any tank to anybody. The question of the fixtures and tank was not mentioned at all. Witness thought, when he bought the property, that all the fixtures and the tank went with the property. He denied positively that either Henderson or Bowers informed him, prior to his purchase, that the fixtures did not belong to Henderson. Witness naturally thought, when he bought the property, that the fixtures and tank went with the property, as they had been put in there by Clay Henderson, who had used them for a year or so in conducting a garage business. Witness understood that he had rented them with the building to other people. Witness bought them when he bought the property, and, after his purchase, he took charge of them and rented them to Bowers.

The trial court found that Dent was the owner of the indoor fixtures, and entered a decree enjoining Bowers from removing same, but dismissed the complaint of Dent as to the “filling station,” and granted Bowers the privilege of taking np and removing the same. From that decree Dent prosecutes this appeal.

“Subject to the easement of the public in a street to use and enjoy as a highway, the fee therein belongs to the owners of adjacent lots.” Reichert v. St. L. & S. F. Ry. Co., 51 Ark. 491. See also Taylor v. Armstrong, 24 Ark. 102. At the time Dent purchased the lot from Henderson, the lot was- being used in part as a filling station. While the tank and pump were on the part of the lot dedicated to the public as -a street, nevertheless the use of the lot as a filling station by the owner thereof did not interfere with the .public use. . Henderson did not reserve in his deed the filling station, and, unless the filling station was personal property, Dent acquired title thereto under the deed from Henderson. The filling station consisted of a five-hundred-gallon tank buried several feet in the ground under the sidewalk which joined the building, and a pump connected with the tank at the outer edge of the sidewalk. This tank and pump could not be removed without taking up a section of the sidewalk and without permanent injury to the freehold. The filling station was worth about $300. At the time Dent purchased the property, it was being used partly as a filling station, and, according to the testimony of Dent, that fact entered into the consideration for the purchase, so far as he was concerned. To be sure, Henderson and Dent could have agreed, when Dent purchased the lot, that the filling station was personal property, and therefore did not pass by the deed. There is no evidence of any such contract between them. True, Henderson testified that he did not own the gasoline station at the time of the sale of the lot to Dent, having sold the same by bill of sale to Hill Brothers several years previous, and that Dent was aware of that fact. But he does not state that he expressly, informed Dent, at the time of the sale, that the deed did not cover the filling station. Dent, on the contrary, expressly denied that Henderson told him he was getting only the naked building. While Henderson testified that he had sold the filling station to Hill Brothers by bill of sale', it was not shown that this bill oi sale was placed on record. Hill Brothers were not in possession of the property at the time of the sale by Henderson to Dent, and there was nothing to advise Dent that they were once the owners of the filling station, and1 that Bowers had acquired title through them.

When we consider the character of the filling station and the use of same to which a part of the freehold had been, and was being, devoted at the time of the purchase thereof by Dent, the presumption, in the absence of proof, would be that the owner, Henderson, had annexed the filling station as a permanent accession to his land. 26 C. J. 666; Choate v. Kimball, 56 Ark. 11; Bemis v. First National Bank, 63 Ark. 625. See also Osarle v. Adams, 73 Ark. 227.

A clear preponderance of the evidence shows that the filling station in controversy is a fixture and the title thereto in Dent, under the doctrine of the authorities above cited. The trial court erred in not so holding. The decree is therefore reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.


text:
    High v. Sharp.
    Opinion delivered November 3, 1924.
    Wills — instruction.—It was prejudicial error to give an instruction that allowed the jury to determine from the evidence whether all of the requirements of Crawford & Moses’ Dig., § 10494, in regard to the execution of a will, had been complied with, when the undisputed evidence showed that three of the five requirements therein mentioned had been complied with.
    Appeal from Washington Circuit • Court; W. A. Dickson, Judge;
    reversed.

      John Mayes, for appellants.
    There is no substantial evidence to sustain the verdict, but only bare inference. 154 Ark. 228. The undisputed evidence shows positively that the will was executed and signed as required by law. The appellee has failed to meet the 'burden resting- upon Mm to show that the will was procured by undue influence; that is to say, the undue influence that will void .a will must be directly connected with its executor, must be the procuring- cause. 94 Ark. 176; 49 Ark. 367; 154 Ark. 516. Since there was no evidence to show that the will was not properly executed and that there was undue influence exercised, it was error to submit these questions to the jury. 156 Ark. 309.

      Name & Seamster, for appellees.
    Appellants can not complain of the submission to the jury of the question of undue influence, since he failed to object to the court’s instructions on the subject. 157 Ark. 225. Where the mental capacity of the testatrix and undue influence as a factor are issues in the case, a wide range of inquiry is permissible. These elements must be considered together, and the matter was submitted to the jury under proper instructions. 29 Ark. 151; 31 Ark. 306; 74 Ark. 212. A total deprivation of reason and understanding is not necessary to constitute incapacity. 17 Ark. 292.
   Wood, J.

On the 21st of September, 1922, in Washington County, Arkansas, Louisa Webb executed what purported to be her last will and testament. By this will she gave and bequeathed to her two grandchildren, Wilma Aline Webb and Thelma Lorene Webb, $150 each; and to her two daughters, Mrs. Effie Gforee and Mrs. Lillian High, she bequeathed all of the remainder of her property, real and personal, wherever located. The testatrix died on the 27th of November, 1922. The will was duly probated and admitted to record by order of the probate court on December 4, 1922. On March 5, 1923, J. S. Sharp was duly appointed guardian for Wilma and Thelma Webb, minors. As such guardian, Sharp petitioned the probate court for an appeal from its order probating the will. In his petition he alleged, among other things, that the will was probated in common form without notice to affiant or his wards, and without appointing a -guardian ad litem to' represent them; that the testatrix, Louisa "Webb, at the time of the execution of the alleged will, did not have sufficient mental capacity to make a will, and also that William High, the husband of Lillian High, one of the principal legatees, exercised an undue influence over the testatrix and thereby caused her to give the major portion of her estate to his wife and her sister, Mrs. Effie Groree. He prayed for an appeal from the order of the probate court probating the will to the circuit court. His petition was duly verified, and the petition was granted and the cause appealed to the circuit court.

The cause was heard de novo in the circuit court before a jury, upon the evidence adduced upon the issues raised by the allegations of the petition. The proponents offered in evidence the record of the will and the probation thereof in the probate court. They also introduced witnesses who testified that they had witnessed the execution of the will by the testatrix; that they were ■ present as witnesses at the request of William High, who told them that Mrs. Webb desired them to be present and witness her will; that the instrument was read and explained to Mrs. Webb by Judge Berry, who prepared the same, and that the same was signed by her in ¡ . tlieir presence. •

Judge Berry testified that he was told by Mrs. High and Mrs. Groree, a week or more before the will- was executed, that their mother wanted him to dome out' and write her will. High also talked to him about it the day before the will was signed. Witness' prepared the will and read and explained it to Mrs. Webb, and she said it was all right. She signed it in witness’ presence. She stated that she could not write her- name very well with a pen, and asked if she could-sign it with a pencil. Witness told her that,she could sign-it with a'pencil, and he j would trace it with ink. She signed the instrument with a pencil, and witness traced her signature with ink, and showed it to her after it was done. ,

Testimony was adduced on behalf of the con- 1 festánts-on-the issues as to whether Mrs, Wébb had süf- • ficient mental capacity to’ make the will, and also as to whether any undue influence had been brought to bear upon her by Lillian High to induce her to make the will. Testimony was also adduced on these issues by the proponents in rebuttal.

On its own motion the court instructed the jury in instruction No. 1, defining the issues, and told the jury that the burden was on the proponents, Mrs. High and Mrs. G-oree, to prove that the will was executed in the manner and form required by law. The proponents duly excepted to that part of the instruction which placed the burden on them to show that the will was duly executed.

The second instruction given by the court was as follows: “I give you in charge § 10494 of Crawford & Moses’ Digest, which I here read to you: ‘Section 10494. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:

“ ‘First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.
“ ‘Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
“ ‘Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.
“ ‘Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
“ ‘Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of *at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in ■this act.’ ”

Instruction No. 3, given by the court, was as follows :

“You are to determine from all the facts and circumstances in evidence whether a compliance with these requirements has been shown by a preponderance of the evidence. ’ ’

The proponents objected and excepted to the giving of the above instructions. There were several other instructions given, to which there were no- exceptions, and which it is unnecessary to set out. The jury returned a verdict finding that the instrument offered as the last will and testament of Louisa Webb is not her last will and testament. The court rendered a judgment in accordance with the verdict, from which is this appeal.

On the issue as to whether the testatrix had sufficient mental capacity to execute her will and as to whether any undue influence was exercised by William High to cause her to execute the instrument as she did, the court correctly instructed the jury in conformity with the law as announced by this court in many decisions. McCulloch v. Campbell, 49 Ark. 369; Milton v. Jeffers, 154 Ark. 516. It could serve no useful purpose- to set out and discuss the testimony in detail relevant to these issues. Suffice it to say there was sufficient testimony to sustain the verdict.

Instruction No. 2 declares the statutory requirements of the modes in general for the execution of wills. The appellants offered a general objection to the giving of this instruction. The instruction was in five paragraphs. The undisputed evidence showed that the instrument had been subscribed by the testatrix and that it was made by her in the presence of the attesting witnesses. Therefore there was no issue to submit to the jury on the first and second paragraphs of the instruction. There was likewise no contention that the entire body of the will was written by the testatrix,’ and therefore there was no issue to be submitted to the jury under the fifth paragraph. There was an issue on the third and fourth paragraphs, and the court correctly submitted these issue's in its instructions Nos. 4 and 6. But the court erred in telling the jury, in its instruction No.-3, that they were to determine, from all the facts and circumstances in evidence, whether the requirements of the statute as set forth in its instruction No. 2 had been shown by a preponderance of the evidence. The appellants duly excepted to the giving'of this instruction, and the effect of it was to allow the jury to determine from the evidence whether the requirements in the first, second, and fifth paragraphs of instruction No. 2 had been complied with when, under the evidence, there was no issue of that kind to be submitted to the jury. The instruction, in this form, authorized the jury to speculate concerning matters about which there was no dispute. Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309-315.

The court therefore erred in submitting to the.jury issues that were not warranted by the testimony, and this error was necessarily prejudicial to the appellants, for it is impossible to determine upon what issue the verdict was based. Milton v. Jeffers, supra. For the error in giving instructions Nos. 2 and 3 the judgment is reversed, and the cause remanded for a new trial.


author: Smith, J. McCulloch, C. J.

text:
    Black v. Stephenson.
    Opinion delivered November 3, 1924.
    1. Deeds — conveyance to a person’s heirs. — Under deed to the heirs of a named person to have and to hold unto said heirs, naming them, “and unto their heirs and assigns forever” held that the Word “heirs” means “children,” and that the deed is not void for uncertainty hut is valid as a conveyance to the living children of the person named.
    2. Deeds — effect of conveyance to heirs. — Under a deed to the heirs (meaning children) of W. S., the latter was never seized of the land, and his residence there with his children did not make it his homestead, nor entitle his widow to either dower or homestead in the land.

      3. Deeds — grantees in esse. — A deed to the children of a named person conveyed title only to his children in esse at the time the deed is delivered, and not to after-born children.
    Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor;
    reversed.

      Bice & Bice, for appellants.
    Where a complaint or answer is insufficient, no amount of proof will warrant a recovery. There is no allegation or proof that Willis Stephenson, Sr., was ever married, nor is there any proof that he was ever seized, two necessary prerequisites of dower. 88 Me. 258; 28 Ark. 19. It is necessary that there should be an actual corporeal seizin in the husband during coverture to entitle the widow to dower. 98 Ark. 118. The right of homestead is a personal privilege, and homestead must be availed of by the claimant as the law prescribes. 70 Ark. 69; 55 Ark. 139; 67 Ark. 232. A resulting trust will not attach in the person paying the purchase money if it was not the intention of .either that the estate should vest in him. 27 Ark. 77; 105 Ark. 318; lliS Ark. 146.

      W. O. Young and G. T. Sullins, for appellee.
    An agreement is not binding upon the court when it is shown that it is contrary to law. 94 Ark. 578. A deed or grant to a person who does not exist at the time of the grant is void. 141 Wise. 653; 18 Ann. Cas. 869; 167 S. W. 22; 195 S. W. 673; 79 Ca. 382.
   Smith, J.

This appeal presents a controversy between the widow of Willis Stephenson and certain of his heirs over a tract of land in Benton County. Various findings were made by the court, and the respective interests of the parties were adjudged. The court found that the widow of Stephenson was entitled to homestead and dower, and'that all the parties took their respective interests subject to these marital rights of the widow. The appeal is from the finding that the widow was entitled to homestead and dower.

The rig’hts of the parties are referable to the following deed, so much of it being copied as is relevant to its proper construction:

“Know all men by these presents: That we, James Smith and Sophronia Smith, his wife, for and in consideration of the sum of four hundred dollars, to us in hand paid by May, Lelia, Thaddeus W-, Willis and Annie and the heirs of Willis Stephenson, do hereby grant, bargain and sell unto the said heirs of Willis Stephenson and unto their heirs and assigns forever, the following lands, lying in the county of Benton and State of Arkansas, to-wit (Description by metes and bounds of the lands conveyed, same being 142 acres).
“To have and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging.
“And we hereby covenant with the said heirs of the said Willis Stephenson that we will forever warrant and defend the title to said lands against all claims whatever.
“And I, Sophronia Smith, wife of the said James Smith, for and in consideration of the said sum of money, do hereby release and relinquish unto the said heirs of the said Willis Stephenson all my right of dower in and to the said lands.
“Witness our hands and seals on this 23rd day of February, 1878.
“James x Smith, mark
“Sopronia Smith.”

It was the opinion of the court below that the deed was void for uncertainty, in that the grantees were not sufficiently designated, but that, inasmuch as Willis Stephenson had paid the consideration, his children therein named being all infants, and had for many years occupied the land, he had acquired the title by adverse possession. That, the deed being void for uncertainty, only the grantor could question Stephenson’s title, and the grantor was barred bv adverse possession. Upon this finding and the assumption that Stephenson was seized of the land at the time of his death, the court proceeded to adjudge the respective interests of his heirs, and held that all had taken subject to the. rights of his widow to homestead and dower.. Stephenson was survived by ten children or the descendants of children, and certain of these heirs had executed to one of the sons a conveyance of their interests, but this son had died, and his interest in the land was apportioned to the other heirs.

We do not set out all these facts which are recited in the decree herein appealed from, as we do not agree with the court below in his construction of the deed. We do not think the deed was void for uncertainty. On the contrary, it is our opinion that the deed was valid as a conveyance to the children of Willis Stephenson who were named in the deed.

It is insisted that, if the deed is not held void for uncertainty, as the court below held, it should be construed as a deed to all the children, or descendants of children, living at the time of the death of Willis Stephenson, which event occurred on May 8, 1911. But we do not concur in that view.

It is true that the undisputed proof shows that Willis Stephenson paid the consideration named in the deed, as his children then living who were named as grantees were infants of tender age; but it is very clear that he did not have the conveyance made to himself.

The ]habendum clause reads as follows: “To have - and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging.”

We must look to the preamble or the premises of the deed to determine who the “said heirs of the said Willis Stephenson” were, who, with their heirs and assigns, were to have and to hold the land forever, with all appurtenances thereunto belonging.

These grantees are named in the premises as “May, Lelia, Thaddeus W., Willis and Annie and the heirs of Willis Stephenson.” The words, “and the heirs of Willis Stephenson,” must be construed as descriptive of the persons previously named, as if the deed had read, “who are.the heirs of .Willis Stephenson.”

By the use of the word “heirs,” children may have been intended; but these children are named, and were persons in being. Certainly, there was a conveyance to May, Lelia, Thaddeus W, Willis and Annie Stephenson, and, if there was in fact an intention that children thereafter born to Willis Stephenson, should be included, that intention was ineffective and unavailing, because they were not in being at that time, and a deed to a person not in being is void for uncertainty.

“A deed made of a present estate to a party not living at the time of its execution is void. Where there is a reasonable doubt of either of the parties being in esse at the time the deed is delivered, his existence must be shown as an affirmative fact to render the conveyance operative.” 1 Devlin on Real Estate (Deeds), 3rd ed., § 123.

But the deed here under review was not void on that account, because it- named as grantees the five living children of Willis Stephenson, and the rule in such cases is that the conveyance operates to pass the title to the persons in being, to the exclusion of after-born heirs.

In the case of Tharp v. Yarbrough, 11 Am. St. 439, a deed was made to the “heirs of Robert A. Tharp,” and it was contended that the word “heirs” should be ■construed as meaning “children.” In construing this deed the Supreme Court of Georgia said: “There seems to be no difficulty in reaching the conclusion that the word ‘heirs’ in this deed did mean ‘children;’ but did it mean only the three then in existence? or will it extend to those who were born afterwards? We think the judge below ruled correctly. Every deed must have parties. This deed expressly defines who are the parties to it, viz: Cicero A. Tharp of the one part, and the heirs of Robert A. Tharp of the other part. A deed must not only have parties to it, but they must necessarily be in existence at the time of its execution, unless, by its own terms, it provides a beneficial interest for parties yet to be born. If Mr. Tharp had conveyed to the heirs, or to the children, of his brother, now born, or who may hereafter be born, it would seem clear the latter would take an interest under the conveyance when they came into life, but he did not so convey.” See also Miller v. McAlister, 64 N. E. 254; Tucker v. Tucker, 78 Ky. 503; Lillard v. Rucker, 9 Yerger (Tenn.) 64; Hall v. Leonard, 1 Pickering (Mass.) 27; Morris v. Stephens, 46 Pa. St. 200; Baird v. Brookin, 12 L. R. A. 157; Faloon v. Simshauser, 130 Ill. 649, 22 N. E. 835; Hogg v. Odom, Dudley’s Report (Ga.) 185; Davis v. Hollingsworth, 84 Am. St. Rep. 233, and note on p. 236; Hollis v. Lawton, 73 Am. St. Rep. 114, and note on p. 119; Roberson v. Wampler, 1 L. R. A. (N. S.) 318, and note on p. 319; Duffield v. Dufield, Ann. Cas. 1916D, 859, and note on p. 864; City Bank v. Plank, 18 A. & E. Ann. Cas. 869, and note on p. 871; Tinder v. Tinder, 131 Ind. 381; Brann v. Elzey, 83 Ky. 440; Campbell v. Everhart, 52 S. E. 201; Huss v. Stephens, 51 Pa. St. 282.

It appears therefore that the- deed set out above was not void for uncertainty, but was valid as a conveyance to the living children of iWillis Stephenson there named, and they therefore took the title to the property conveyed. This being true, Willis Stephenson was never seized of the land, and his residence there with his children did not make it his homestead. This being true, his widow did not take either dower or homestead in the land, and the decree of the court below awarding her these estates must be reversed, and the cause will bo remanded with directions to the court below to enter a decree denying her those estates.

It follows from what we have said that we do not concur in the decree of the court below adjudging’ that all the children of Willis Stephenson took title as his heirs, but, inasmuch as there was no appeal from any part of the decree except that awarding homestead and dower to the widow, and no other question is presented for review, we do not disturb..that part of the decree.

The Chief Justice concurs in the reversal as to allowance of homestead and dower, but holds that the deed included after-born children.

McCulloch, C. J.

(concurring). The rule that the use of the word “heirs” in a conveyance may be construed to mean “children,” when it is obvious that it was so intended by the person who made the conveyance, has been applied in this court to the construction of hoth testamentary conveyances and deeds. Wyman v. Johnson, 68 Ark. 369; Myers v. Weiner, 69 Ark. 319; Shirey v. Clark, 72 Ark. 539. In the opinion in Wyman v. Johnson, supra, this court compared the two cases of Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56, and Shotts v. Poe, 47 Md. 513, in one of which it was held that the language of the devise was sufficient to include after-born children, and in the other it was held that the language was not sufficient to embrace them, and this court followed the latter rule, but distinctly recognized that, if the language was sufficient to indicate an intention to include after-born children, the failure to expressly include them would not defeat that intention.

It has often been held by this court and is, I believe, a rule of universal application, that the whole of an instrument is to be construed in determining the meaning of the language used, and that effect should be’ given to all of the language used if possible to do so. Now, the effect of the construction placed by the majority upon the deed of conveyance before us for consideration excludes entirely the words “and the heirs of Willis Stephenson,” for, if the conveyance is limited to the four children named, then no effect whatever is given to the words quoted above. It is clear, from a consideration of this language, that the grantor meant to include other persons than those specifically named, and, as he mentioned all of the children of Willis Stephenson then in being, it was necessarily intended to include after-born children. The fact that the four children then in being were named shows that the other language referred to heirs or children other than named.


author: Hart, J., McCulloch, C. J.,

text:
    Meek v. Green.
    Opinion delivered November 10, 1924.
    1. Vendor and purchaser — abstract showing good title. — Where a contract for the purchase and sale of land calls for an abstract showing good title, the contract will be construed to mean a good record title, and not such a title as may be shown by oral proof or affidavits and other writings not subject to registration.
    2. ■ Vendor and purchaser — construction of contract. — A contract for the sale of land, which, after providing for placing the deed, cash payment and purchase notes in escrow in a bank, required the vendor to furnish an abstract of title covering the land, allowed the purchaser 5 days to point out any defects, and allowed the vendor 30 days to cure such defects and “redeliver said abstract and curative work,” and that, if said abstract of title showed a good title at either of said times, the contract should be executed, but if the title “is not good or made good” in the vendor, then the bank should redeliver the deed, money and notes to the respective parties, held to authorize the vendor to supply defects in the title by affidavits and other oral proof.
    3. Vendor and purchaser. — In suit by a vendor for specific performance of a contract to convey title, evidence held to show title by adverse possession entitling the vendor to recover.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor-;
    reversed.
    STATEMENT OP PACTS.
    D. W. Green brought this suit in equity against H. E. Mleek and the First National Bank to cancel a contract for the purchase of two lots in the city of Camden, Arkansas, and to compel said bank to return to him the sum of $2,000 in cash and four promissory notes of $2,000 each deposited with said bank in escrow.
    The defendant, Meek, admitted the execution of the contract for the sale of the lots, and set up facts entitling him to a specific performance of said contract. -Wherefore he prays that the complaint be dismissed for want óf equity, and that the -contract of sale be specifically enforced.
    On December 29, 1922, H. E; Meek entered into .a written contract with D. W. Green to sell-him two town lots in the city of Camden, Arkansas, for the sum of $10,000. Two thousand dollars of the purchase price was to he in cash, and the balance of it to be evidenced by four notes of $2,000 each. A deed executed by the party of the first part, the cash payment, and the notes for the balance of the purchase price were placed in escrow in the First National Bank of Camden, Arkansas, to be delivered upon the following condition: “The party of the first part agrees to deliver to said bank for the party of the second part, within five days, an abstract of title covering said land, whereupon the party of the second part shall have five days within which to have the title to said property examined by his attorneys and to deliver a written opinion upon the title to said bank for party of the first part, pointing out the defects of the title, if any. After the delivery of said opinion to said .bank, the party of the first part shall have thirty days within which to cure defects in the title, if any, and redeliver said abstract and curative work to said bank. If said abstract of title shows a good title to said property in party of the first part at either of said times, then said bank is authorized to deliver said deed to party of the second part and said money and notes to party of the first part. If, however, the title to said property is not good or made good in party of the first part, as herein-before set out, then said bank shall deliver said deed to party of the first part and said money and notes back to party of the second part. ’ ’
    The plaintiff introduced in evidence the original abstract of title furnished by the defendant. The abstract shows a record title from the United States by mesne conveyances to David and Paulina Snow on June 15, 1866. Then O. E. Newton and D. Newton executed a deed of trust to said lots to Robert F. Sale, trustee for Bettie Treadway. The date of the instrument was February 1,1882, and it is marked satisfied in full on January 22, 1883. The abstract also shows that D. Newton and Ora E. Newton executed other deeds of trust from time to time on said lots, which were satisfied of record. The abstract also shows that, on February 21, 1891, D. New-toil and O. E. Newton, his wife, executed a deed'of trust ■to A. A. Tufts, trustee, to secure a note for $3,000, due February 21,1892.
    This mortgage was foreclosed by suit in the chancery court, and a decree of foreclosure was entered of record on June 3,1893. The chancery court record shows that the lots were sold by a commissioner appointed for that purpose, and were purchased by W. E. McRae on the 25th day of August, 1894.
    The chancery court record also shows the execution of a deed by the commissioner to W. E. McRae on the 10th day of December, 1894, and the approval thereof on the same day by the chancery court. It was ordered that a copy of the order of the chancery court and the acknowledgment of the deed be entered upon the deed and certified by the clerk under the seal of the court, to the end that same might be entitled to record.
    H. E. Meek deraigned title by mesne conveyances from said W. E. McRae. Affidavits and oral evidence curing the defects in the title were introduced in evidence, and will be referred to under an appropriate heading in the opinion.
    The chancellor found the issues in favor of the plaintiff, and1 it was decreed that the contract of purchase between the plaintiff and the defendant be canceled, and that the First National Bank of Camden, Arkansas, should deliver, upon demand, to the plaintiff, D. W. Green, .the sum of $2,000 cash and the four notes of $2,000 each deposited with said bank for the balance of the purchase price of said lots. The case is here on appeal.

      Smead é Meek, for appellants.
    It is conceded that a vendor contracting to deliver an “abstract showing good title” is required to furnish an abstract showing a good record title; but the rule is different where the vendor merely contracts to furnish good title or a marketable title, without. specifically agreeing to furnish “abstract showing good title” or “marketable title.” In the latter case, a title by limitation, or a title proved by other than record title, is sufficient. 152 Ark. 193. Appellant furnished appellee evidence of a safe limitation title. This court has recognized that an agreement to furnish an abstract is not synonymous with an agreement to furnish abstract showing perfect title. 154 Ark. 193; 151 Ark. 343. Counsel contend, both from the language of the contract, and from the presumptive knowledge of both parties of the chaotic condition of land titles in Ouachita County resulting from a fire, that the appellant merely agreed to deliver a good title, not an abstract showing good title.

      Thos. I. Thornton, for appellee.
    There is no ambiguity in the contract. It simply means that the abstract must show a good title in Meek, either at its first or last presentation. If it did not show it upon its first presentation, then the muniments of title covering the defects should have been procured, recorded and brought forward into the abstract, in order that the latter could show a good title in Meek. This is the “curative work” contemplated by the contract. The phrase “as hereinbefore set out” refers back to the clause “if said abstract of title shows a good title to said property in party of the first part at either of said times,” and means that the title must be made good by additions to the record and that the abstract must show this, and within the time fixed by the parties. Maupin on Marketable Titles to Beal Estate, 3rd ed. 165; 206 111. 512. An abstract of title contains only such matters as are shown by the record. 152 Ark. 192. The title shown by appellant would not be a good merchantable title, even if the contract had called for that character of title. In order to acquire title by adverse possession, the holding must be against one entitled to possession of the land held, and having the right to bring an action for its recovery. The statute of limitations does not run against a reversioner until the death of the life tenant. 60 Ark. 70; 98 Ark. 30; 116 Ark. 233. And the vendor must show that there are no persons in remainder who ■ might-claim the estate. 16 N. Y. 156,- 54 N. E. 674; 1-28 Ark. 342. See also 126 Ark. 1; 117 Ark. 366; 115 Ark. 359; 140 Ark. 367; 172 S. W. 867 (Ark.); 65 Ark: 90; 58 Ark. 510; 69 Ark. 539; 97 Ark. 397. The contract called for, and Meek should have furnished, an abstract showing a good record title. The case of Dalton v. Lybarger, 152 Ark. 193, quoted from by appellant, is decisive of this question. See also 151 Ark. 343; Maupin on Marketable Titles, etc., 3rd ed. 24; 163 N. W. 924; 167 N. W. 15; 173 N. W. 871; 195 S. W. 259; 189 S. W. 275.
   Hart, J.,

(after stating the facts). This court has held that, where a contract for the purchase and sale of land calls for an abstract showing good title, the covenant will be construed to mean a good record title, and not such a title as may be shown to be good by oral proof, or affidavits and other writings not subject to registration. In short, it is not sufficient in such cases that the title is good in-fact, that is, capable of being made good by the production of affidavits or other oral testimony, but it must be good of record. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 193; and Bennett v. Farabough, 154 Ark. 193.

Counsel on both sides recognize this to be the settled rule in this State, but differ as to the effect of the language used in the contract under consideration in this case.

On the part of the plaintiff it is contended that the contract itself brings the case within the rule announced. On the other hand, it is contended by the defendants that, when the contract is construed as a whole, it shows that any defects in the title which could not be cured by record evidence might be supplied by affidavits and other oral proof.

The covenant in the contract on this point has been copied in our statement of facts, and reference will only be made to it here. The covenant provides that Meek shall deliver to the bank, for Green,- an abstract-of title covering said lands. It then provides that Green shall have five days within which to have the title examined by his attorney and a written opinion by him, pointing’ out the defects in the title, if any. The contract provides that Meek shall have thirty days within which to cure said defects in the title and to redeliver said abstract and curative work to said bank.

If the said abstract of title shows a good title in Meek at either of said times, then it is provided that the bank is to deliver the deed to Green and the money and notes . to Meek. If, however, the title to said property is not good, or not made good in Meek, 'as hereinbefore set out, then the deed and the money and notes are to be returned to the respective parties.

The majority of the court is of the opinion that this language authorizes Meek to supply defects in the title by affidavits and other oral proof. The covenant provides for a redelivery of the abstract and curative work to the bank. If it merely contemplated strengthening the abstract by record evidence omitted from it, it would not have been necessary to have used the phrase, “curative work. ’ ’

It is true that the next sentence uses the words, “if said abstract of title shows a good title * * * at either of said times;” but it seems clear that the words, “said abstract of title,” means the abstract containing the curative work. In short, said “abstract of title” refers to the words, “said abstract and curative work,” and shows that the parties intended to use the words, “abstract of title,” in an enlarged sense so as to include the curative Work.

This view is strengthened by the next sentence in the covenant, which provides that,' if the title to the said property is not good, or made good in Meek, then the bank shall redeliver the deed, money and notes to the respective parties entitled to the same. If the words, “curative work,” were not intended to mean anything except record evidence, they need not have been used. The parties would simply have provided that Meek should have thirty days within which to cure defects in the title oi' to amend the abstract and then redeliver the abstract to the bank.

If it was intended that record evidence alone should be used, such evidence would be part of the abstract of title, and it would not have been necessary to have used the words, “curative work,” at all. In short, if the contract meant that Meek was to furnish an abstract of title which, on its face, would show that he had a good title of record, then it should have merely given him additional. time to perfect or amend his abstract of title. The contract, in our opinion, when considered from its four corners, simply means that, if Meek had a good title to the lots at the end of the period of time given him for curing defects in it, the contract was to stand; and if he did not have a good title at that time, the contract was to be at an end.

By adverse possession, it is sufficient to enable the vendor to maintain an action for specific performance against the purchaser in the absence of a contract for a perfect record title. In such cases, however, the proof of the adverse possession must be readily available and of a character so* convincing as to leave no reasonable doubt of its sufficiency. Hinton v. Martin, 151 Ark. 343. Tested by this rule, we think the testimony in the case entitles Meek to a decree for specific performance.

D. Newton and O. E. Newton, his wife, ■ executed a deed of trust to the lots on February 21, 1891, to secure an indebtedness of $3,000. The fee in the lots was mortgaged. The deed of trust also contained a covenant that the lots were free from all incumbrances, and that the grantors would forever warrant and defend the title to the same.

D. Newton and Ora E. Newton were made parties to the foreclosure suit. "W. E. McRae became the purchaser at the foreclosure sale, and received a deed from the commissioner appointed to make the sale. The deed was acknowledged in open court, and McRae went into possession'of the lots by virtue of his deed, and remained in possession of them until he sold them.

According to the testimony of one witness, the lots were known as the Newton lots in 1878, and they then had a building on them.

Another witness stated that they were known as the Newton lots in 1872.

Affidavits of several witnesses were filed to the effect that they had known the lots for forty years, and some of the witnesses had known them for forty-five years. They all said that D. Newton and Ora E. Newton were in the exclusive possession of the lots until they were sold under the foreclosure decree in 1894; that W. E. McRea then went into possession of the lots, and that he and his grantees have been in the exclusive and peaceable possession of them ever since; and that none of the parties mentioned, or their heirs, have ever been insane.

The affidavit of Mrs. Ora E. Newton was also filed with the abstract of title. According to her testimony, the lots were in the peaceable and adverse possession of her husband, D. Newton, and herself for many years prior to the year 1894. She does not recollect how they acquired title to the property. She does recollect that W. E. McRea acquired title to the property in 1894, and since that time neither her husband nor herself nor any of tlieir children have had any claim or made any claim to said lots.

It appears that D. Newton is dead, but the affidavit of his son, R. D. Newton, was also filed: According to his testimony, all of the children of D. Newton and Ora E. Newton are still living, and all of them are more than thirty-five years of age, except two children who died in infancy. R. D. Newton is sixty-one years of age, and has been a resident of Camden all of his life. His father had been in the actual possession of said lots from about the year 1870 to the year 1893, when the lots were sold under a mortgage foreclosure decree and purchased by W. E. McRae. R. D. Newton stated further that it was a matter of family history that his father received a deed to the .lots from the city of Camden about the year 1870, in consideration of services rendered the city.

There is no dispute that all of these persons have had the actual and peaceable possession of-the lots during the years mentioned. No other person has ever made a claim of title to the lots during this time. The evidence to this effect is available, and there is but little room to doubt that Meek and his grantors have title to the lots by adverse possession. Hence all the requirements of the law as to the title by adverse possession, where specific performance is asked, have been met.

Therefore we are df the opinion that Meek was entitled to a decree of specific performance as prayed for by him, and, for the error in canceling the contract of purchase and sale- between him and Green, and ordering the restoration of the consideration to the latter, the decree will be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. It is so ordered.

McCulloch, C. J.,

(dissenting). The law of the case is well settled by decisions of this court cited in the opinion of the majority, and the decision turns on the construction of the contract of the parties. My interpretation of the contract is that it requires the seller to furnish a good title — an abstract showing good title, which means a good record title, for, unless the abstract shows it, there is no record title. A good title must be a record title, otherwise the abstract will not disclose it, for an abstract is merely an epitome of the record. It is not within the purport of an abstract to show title resting, upon matters in pais. The contract involved in this case provides that the seller shall furnish an abstract “covering said land,” and that the purchaser shall have time for his attorney to examine it and report defects, if any, found; that the seller shall have thirty days “within which to cure defects in the title, if any, and redeliver said abstract and curative work.” The next sentence reads as follows: “If said abstract of title shows a good title to said property in party of the first part, at either of said times, then the bank is authorized to deliver said deed.” The latter sentence determines, I think, the character, of the contract. It clearly means that “at either time;” that is to say, when the abstract is first delivered, or when it is redelivered after completion of the “curative work,” it must show a good title, not that the curative work shall show a good title, but that the abstract shall show it.

.The “curative work” referred to in the abstract must be such that will perfect the record title. I think, the term “curative work” relates to matters such as additional deeds, confirmation decrees, and the like, which can be put on record so as to appear in the abstract. It does not relate to matters in pads, such as proof of adverse possession. Any other interpretation disregards, in my view, the sentence in the contract which .provides that the abstract must “at either time” show a good title.

In the case of Danzer v. Moerschel (Mo.) 214 S. W. 849, 7 A. L. R. 162, the Supreme Court of Missouri said:

“The great weight of authority supports the rule that an abstract is an epitome of the record evidence of title; that a contract calling ‘for an abstract showing good title’ calls for record evidence; that nothing less will ‘satisfy the condition, no matter what the vendor’s title might be;’ that ‘it is not sufficient that the title is good in fact, that is, capable of being made good by the production of affidavits’ or other..oral testimony; it must be good of record;’ that in such case title by adverse possession will not suffice.”

In the case of Lake Erie Land Co. v. Chilinski 197 Mich. 214, 163 N. W. 929, where the court held that there should be “an abstract showing marketable title,” the court said:

“If the abstract does not, on its face, show a merchantable title, and it required oral proof to establish the fact that the title is a merchantable one, a contract agreeing to furnish an abstract showing a merchantable title is not complied with. The abstract itself must furnish the evidence that the title is merchantable.”

In Moser v. Tucker (Texas Civ. App.) 195 S. W. 259, the Texas court said:

“Where the abstract is to show a merchantable title, it cannot be supplemented with affidavits, oral proof, or writings not recordable.”

In Maupin on Marketable Title's to Beal Estate, 3d ed., § 288, the rule is laid down as follows:

“The right of a purchaser to reject a doubtful title depends, of course, upon the terms of his contract. He will have no right, if he has agreed to accept the title such as it is. On the other hand, the vendor cannot resort to parol evidence to remove doubts about the title, if, by the contract, he is to furnish a ‘good title of record,’ nor if he obligates himself to deliver an abstract showing a good title * * * , nor will the purchaser be required to go outside of the abstract in examining the title.”


text:
    State National Bank of Texarkana v. Birmingham.
    Opinion delivered November 17, 1924.
    1. Biles and notes — innocent purchaser. — Crawford & Moses’ Dig., § 684, authorizing State hanks to lend money on security, did not absolve from liability one obtaining a loan in violation thereof, nor prevent one from becoming an innocent purchaser of a note given without security for such a loan.
    2. Bills and notes — innocent purchaser op collateral. — One acquiring a promissory note as collateral may be an innocent purchaser.
    3. Bills and notes — innocent purchaser — jury question.— Where the undisputed testimony showed that plaintiff bank received a note as collateral in the usual course of business and ■ made a loan on the faith of such security, it was error to submit to the jury the question whether plaintiff was an innocent purchaser.
    4. Evidence — Hearsay.—Hearsay testimony that the note in suit had been paid by delivery of checks was .incompetent.
    5. Appeal and error — harmless error — incompetent evidence.— The admission of incompetent evidence on a disputed issue will be presumed to be prejudicial.

      6. Appeal and error — sufficiency of bill of exceptions. — Where a bill of exceptions contained a call for a copy of the record of the chancery court, but the record was inserted elsewhere, it will not be presumed that the bill of exceptions failed to bring up all the evidence.
    Appeal from Laifayette Circuit Court; James H. McCollum, Judge;
    reversed.

      Searcy & Searcy, for appellant.
    Instruction numbered one was abstract, and it was error to give same. It in effect instructed that, if appellant had knowledge of any infirmity or defect of title to said note as the assignee thereof at the time it acquired same, it could not recover. There was. no testimony upon which the instruction could be based, and it should not have been given. Ill Ark. 134; 88 Ark. 231; 96 Ark. 614; 91 Ark. 14; 77 Ark. 109. It was error to admit the hearsay testimony of J. D. Hanson as to the delivery of the checks.

      Henry Stevens, for appellee.
    Instruction No. 1, about which appellant complains, is substantially the same on the point at issue as his instruction numbered 2, and given by the court, and he cannot now urge that on appeal. 67 Ark. 531; 132 Ark. 450; 85 Fed. 408; 88 Ark. 172; 9J Ark. 589; 94 Ark. 524. Hanson’s statement conplained of could not be prejudicial from the fact that Birmingham testified to the same fact. The whole matter was a question for the jury. The court will not reverse where, upon the whole case, the verdict and judgment are correct. 10 Ark. 9; 91 Ark. 97; 89 Ark. 154; 90 Ark. 524; 111 Ark. 550. If the note for which the collateral is given is settled in full, then appellant would not have a right of action on this note. Jones on Pledges, § 540; 41 C. C. A: 176; 64 ■S. W. 756; 43 S. W. 238.
   Smith, J.

The appellant bank sued to recover on a note executed by appellee Birmingham to the order of the Lafayette County Bank, which was by that bank indorsed to appellant as collateral to. a loan made the Lafayette County Bank.

The testimony shows that J. D. Hanson was largely indebted to the Lafayette County Bank, and desired to borrow more money, so he applied to appellee to execute the note sued on, promising appellee at the time that other signers would be secured before the note was used. But, without securing other signers, Hanson delivered the note'to the Lafayette County Bank and had the proceeds thereof credited to his account.

The Lafayette County Bank borrowed varying sums of money from appellant, which were secured by collateral. notes deposited with appellant, and the note of appellee was so used. The note wás for the sum of $2,500, was dated March 25, 1920, bore interest at the rate of ten per cent., and was payable .November 1, 1920. This note was indorsed and delivered' by the Lafayette County Bank in the spring of 1920 to appellant bank, and was thereafter continuously held by' appellant bank, along with other collateral, to secure the indebtedness of the Lafayette County Bank to appellant bank. The note was indorsed as follows:

“Lafajmtte County Bank, Buckner, Arkansas. John M. Bolger, cashier.
“(50c stamps). Pay to the order of any bank, banker, banking or trust company. (All prior indorsements guaranteed).
“State National Bank. 81-75 Texarkana, Ark. 81-75. W. B. Oglesby, cashier.”

A line was drawn through the date, October 4, 1920.

It was testified that appellant bank indorsed the note on October 4, 1920, as shown above, and forwarded the note, for collection for its account, to the Lafayette County Bank, along with other notes maturing about that time, and, when a collection was not reported, an officer of. appellant bank went to the Lafayette County Bank and took possession of the collateral, and the note sued on has since.continuously been in the possession of appellant bank as collateral.

The Lafayette County Bank closed its doors about December 17, 1920, at which, time it was indebted to appellant bank in tbe sum of $39,000, and appellant bank held notes payable to the Lafayette County Bank for $70,000 as collateral to this indebtedness. These collateral notes had been received from time to time, and, as has been stated, the note sued on was one of them.

The State Bank Commissioner took over the Lafayette County Bank, pursuant to law, and wound up its affairs under the orders of the chancery court of that county, and, after doing so, a dividend of only eight per cent, was paid depositors.

Among other things done by the Bank Commissioner was to make a settlement of the accounts between the two banks, whereby appellant bank released all the direct obligations of the Lafayette' County Bank to it, and took in satisfaction thereof certain of the collateral notes which it held. The note in suit was one of the notes assigned to appellant bank by the Bank Commissioner, and appellant bank brought this suit on it as the absolute owner.

Appellee made two defenses. The first was that the note was with out. consideration, and that appellant bank had not taken it as an innocent purchaser. The second defense was that the note had been paid.

In support of the first defense, it is insisted that the note was taken by the Lafayette County Bank in violation of § 684, C. ■& M. Digest, which reads in part as follows: “Any bank organized under the laws of this State shall be permitted to receive money on deposit, and to pay interest thereon; * * * to lend money on chattel and personal security, or on real estate secured by deeds of trust * * It is insisted that it appears from the face of the note itself that it was taken in violation of this section, in that no one had signed the note as indorser, and no collateral therefor had been taken.

In answer to this contention it may be said that the section of the statute quoted was passed for the protection of depositors of the bank making a loan, and not to absolve from liability one who obtained a loan in violation of its provisions, and there is therefore nothing in this. section which, of itself, would prevent one from acquiring such a' note as an innocent purchaser within the meaning of the Negotiable Instruments Act. City National Bank v. DeBaum, ante p. 18.

Considering further the defense that appellant bank did not acquire the note as an innocent purchaser, foi value, before maturity, wre have to say that we find ho testimony in the record sufficient to raise a question for the jury as to the good faith of appellant bank in acquiring the note as collateral. Appellant bank had no notice that Hanson had negotiated the note to the Lafayette County Bank without authority, and its status as an innocent purchaser is not affected by the fact that it acquired the note as collateral merely. Newell Contracting Co. v. McConnell, 156 Ark. 556, and cases there cited.

In further support of the defense that appellant did not acquire the note as an innocent purchaser, it is insisted that it was not shown that the cashier of the Lafayette County Bank had ever indorsed the note to appellant bank, or that he had the authority to do so.

In reply to this contention, it may be said that the pleadings do not tender this issue. The note as exhibited to the complaint purported to have been indorsed by the cashier of the Lafayette County Bank, and no testimony was offered that he had not in fact done so, or was without authority to do so. On the contrary, the undisputed testimony shows that appellant bank received the note in the usual course of business, and made a loan of money on the faith of this security. Moreover, appellant bank acquired the title to this note by the assignment to it from the Bank Commissioner in consideration of its release of all direct claim against the Lafayette County Bank.

We conclude therefore that the issue whether appellant bank was an innocent purchaser was improperly submitted to the jury.

Upon the issue of payment, the following testimony was offered: After the Lafayette County Bank closed its doors, Hanson was given checks on that bank by depositors amounting to-$6,700. At this time it was not known that only so small a dividend as eight per cent, would he paid to the depositors, and there was testimony that these checks were delivered to Yance in satisfaction of the note in suit. Yance was the representative of appellant bank, who acted for it in the liquidation of its claims against the Lafayette County Bank. In addition to this testimony, Hanson was permitted to testify that these checks had been so delivered. He was asked how he knew, and he answered: “A. Well, so far as that’s concerned, I know it like I know a great many other things that I don’t see happen.” He was asked what he meant by that, and answered: “By hearsay.” A motion was made to exclude this testimony, but the court declined to do so.

This testimony was incompetent, and must be treated as prejudicial, as it does not affirmatively appear not to have been. The jury may have treated ‘this testimony as corroborative of other testimony that the checks had been so used, and this was a sharply controverted fact. Yance denied that he agreed to accept the checks in satisfaction of the note sued on, or that he had received them at all, and the testimony of the receiver of the Lafayette County Bank is to the effect that the checks were indorsed and delivered to him-by Hanson’s bookkeeper, and that he (the receiver) credited these checks on a note of Hanson payable to the Lafayette County Bank.

There was a verdict in appellee’s favor, and a judgment accordingly, which must be reversed .on account of the admission of this incompetent testimony.

It is also insisted that the judgment of the court below should be affirmed because it affirmatively appears that the bill of exceptions does not contain all the testimony. The basis of this contention is that counsel for appellee offered in evidence the record of the chancery court showing the settlement of the indebtedness of the Lafayette County Bank which was due appellant bank.

The bill of exceptions recites that this record was offered in evidence, and thereafter follows the direction: “Here copy record,” and the record was not copied.

We think this omission was supplied, however, by the recitals immediately following. Counsel for appellee said: “I would like to introduce a copy of that assignment, unless they want the record. This is a copy furnished me by Mr. Tidwell” (the receiver) “showing the matters that were assigned to the State National Bank” (appellant) — “a Bank Commissioner’s deed and the assignment.” No objection was made, whereupon the Bank Commissioner’s deed and assignment, referred to, was introduced in evidence, and it is then copied in full into the bill of exceptions. This instrument was evidently treated as supplying the place of the record itself and answering the first call in the bill of exceptions.

Before admitting this copy of the assignment, the court made the following inquiries: “ Is it admitted that it is a copy? Does that report include this particular note? Mr: Stevens (counsel for appellee): Yes sir. Court: Does the note show it was turned over by the Commissioner? Mr. Searcy (counsel for appellant) i Yes sir, and this report does, too.' Court: Well, do you object to it, Mr. Searcy? Mr. Searcy: No sir.”

The deed and assignment shows the order of the court in regard to the note sued on, that order being as herein previpusly stated, that appellant bank took title to certain collateral (the-note in suit 'being included) in satisfaction of the direct obligations of the Lafayette County Bank to it.

There appears therefore to be no basis for the presumption that testimony might have been offered, but not shown in the bill of exceptions, which authorized the verdict returned and which rendered harmless the erroneous admission of the hearsay testimony set out above.

For the error indicated the judgment of the court below will be reversed, and the cause remanded with directions to submit to the jury the question only whether there was a payment of the note by the delivery of the checks by Hanson, unless some substantial testi-' mony is offered to support the allegátions of the answer that appellant was not an innocent purchaser.


author: Humphreys, J.

text:
    Housley v. State.
    Opinion delivered November 24, 1924.
    1. Criminal law — judicial notice. — The courts take judicial notice, and all other persons are required to take notice, of orders promulgated by the Board of Control fixing the quarantine line.
    2. Animals — quarantine order — clerical error. — Use of the word “township” where obviously “range” was meant will not invalidate an order fixing the quarantine line.
    3. Animals — violation of quarantine order — evidence.—Evidence held to sustain a finding that accused drove cattle from an infected county across the quarantine line.
    Appeal from Searcy Circuit Court; J. M. SMnn, Judge;
    affirmed.

      J. F. Henley and W. F. Reeves, for appellant.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was tried and convicted in the circuit court of Searcy County, on appeal from a judgment of conviction before a justice of the peace, for violating the cattle quarantine law, and, asa punishment therefor, was fined $50. He has prosecuted an appeal from the judgment of conviction to this court.

Appellant’s main contention for a reversal of the judgment is that the court erred in instructing the jury as a matter of law that the quarantine line was between Van Burén and Searcy counties. This instruction was predicated upon the theory that the order promulgated by the Board of ’Control fixing the quarantine line sufficiently described the line as being between said counties. Of course, if said order sufficiently described the line as being between said counties, it would have been proper for the court to have instructed the jury as to the location of the line, for courts take judicial notice, and all other persons are required to take notice, of orders promulgated by the Board of Control fixing the quarantine line. The notice in the instant case followed the language' of the order, and is as follows:

‘1Notioe — Cattle Quarantine
“Effective April 24, 1923.
“That part of Van Burén County west of township line separating townships 13 and 14 west is hereby quarantined by proclamation on account of being infested with Texas fever ticks (Margaropm annulatus). Cattle from the above named county are not allowed to be shipped, trailed, transported, or allowed to drift into the free counties, or counties, doing systematic tick eradication in the State of Arkansas.
“Joe H. Bux, State Veterinarian,
“Secretary Board of Control.”

The order and notice are admittedly meaningless as written, but the Attorney General suggests, and we agree with him, that it is obvious that the Board of Control meant to use the word “ranges” instead of “townships,” and that the use of the word “townships,” was an obvious clerical error which courts will correct. Bowman v. State, 93 Ark. 168. The use of the word “west” after the figure 14 in the order and notice clearly indicates that said board intended to use the word “ranges,” as ranges lie east and west of the meridian line and townships north and south of the base line. If the word “ranges” is -substituted for the word “townships” in the order and notice it is apparent that all that part of Van Burén County lying west of the dividing line between ranges 13 and 14 was placed below or immediately south of the quarantine line. This being true, it was proper for the -court to instruct the jury that the quarantine line was the -dividing line between Searcy and Van Burén counties.

Appellant next, and lastly, contends for a reversal of the judgment upon the alleged insufficiency of the evidence to support the finding of the jury that he drove the cattle out of Van Burén County into Searcy County, across the quarantine line. We have read the testimony carefully, and find that it tends to show that appellant sold the cattle at his home in Van Burén County, and delivered them to the purchaser at the salting ground in Searcy County the next day after selling them. According to the testimony of Henry Clayton, appellant was seen with the cattle within two hundred and fifty yards of the quarantine line, driving them in the direction of the line, and that appellant admitted that he was taking them across the line, and asked him (Clayton) to say nothing about it. The testimony was sufficient -to support the verdict. '

No error appearing, the judgment is affirmed.

Smith,-J., dissents.


text:
    Norton v. J. T. Fargason Company.
    Opinion delivered November 17, 1924.
    1. Mortgages — transfer of.rent note to mortgagee. — The effect of an insolvent mortgagor transferring the rent note of the mortgaged property to the mortgagee is tantamount to placing the mortgagee in possession thereof.
    2. Bankruptcy — unlawful preference. — Placing a mortgagee in possession of the mortgaged property after maturity of the debt secured does not, in the case of an insolvent mortgagor, constitute an unlawful preference, within the ¡bankruptcy act, § 60b.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      G. W. Norton, for appellant.
    The action was brought under § 60b of the ■bankruptcy act of 1910. The essentials of the cause of action are a transfer by the debtor, while insolvent, and within four months before the filing of the petition, and reasonable cause upon the part of the transferee to believe that the enforcement of the transfer will effect a preference to him. It is sufficient that the transfer will in fact amount to a preference, and that the creditor had reasonable cause to believe that such would1 be its effect, and had reasonable cause to believe that the debtor was then insolvent. 'Black on Bankruptcy, §§ 596, 597, 599.

      Wilson, Gates <& Armstrong, and Mann <& Maim, for appellee.
    Theburden is upon the trustee to prove the elements of a voidable preference. 3 B. C. L. 285; 7 O. J. 150; 208 Fed. 97; 211 Fed. 638; Í65 Fed. 166; 21 L. B. A. (N. S.) 960; 282 Fed. 476. Appellee received no more by the transfer of the rent note than he could have possessed himself of by the enforcement of his legal right to foreclose. He forbore to assert this right in consideration of the transfer to him of the rent note, and thereafter was simply in the position of a mortgagee in possession under his mortgage, who would be entitled to receive the rents whether bankruptcy did or did' not ensue. To constitute a preference, it must be shown that the transfer resulted in a depletion of the estate that would have gone to creditors but for the transfer. 284 Fed. 936; 196 U. S. 502; 239 U. S. 269; 116 Fed. 276. A payment on a secured debt, where the property is more valuable than the debtj does not result in a voidable preference. 7 C. J. 163-166; 6 B. C. L. 659; 168 Fed. 998; 219 Fed. 397. A voluntary payment of a lien on property is not considered a preference. 288 Fed. 1004. A mortgagee, upon default in payment of his indebtedness, is entitled to both possession of the property and the rents, to be applied on his indebtedness. A suit for possession of the property may even be maintained. 30 Ark. 520; 157 Ark. 525. See also 49 Ark. 508; 53 Ark. 545; 97 Ark. 397; 119 Ark. 543. Bankruptcy courts have held that the possession of a mortgagee will not be disturbed if he had the right to possession under the State law. 185 Fed. .851; 198 U. S. 91; 49 E. ed. 596. The forbearance to sue and foreclose the first and second mortgages was ample consideration for the transfer of the rent note. 7 C. J. 166; 253 Fed. 718; 6 B. C. L. 659. The appellant failed to prove insolvency, and made no attempt to show the assets of Winter at the time the transfer of the note was made. 3 E. C. L. 273; 7 C. J. 150; 156 Fed. 168. Proof of a judgment obtained and that other suits might be filed is not proof of insolvency. 142 Cal. 529; 7-6 Pac. 243. Proof of inability to pay debts does not even tend to show insolvency, as that is not the character of proof contemplated by the bankruptcy act. 113 Fed. 545. The proof is insufficient to show that appellee had reasonable cause to believe that the enforcement of the transfer of the rent note would effect a preference, and would give it a greater percentage of its debt than received by other creditors of the same class. 97 U. S. 80, 24 L. ed. 971; 83 Ark. 324; 225 Fed. 234; 285 Fed. 183; 272 Fed. 11.
   Humphreys, J.

Appellant brought suit in the chancery court of St. Francis County against appellee to set aside the execution of a written note for rent 'for the year 1921, on lands owned by Dr. W. A. Winter, as a voidable preference under § 60b of the Bankruptcy Act, as amended in 1910. The note was signed by Davenport Brothers, who had leased lands from the owner, Dr. W. A. Winter, and made payable to J. T. Fargason Company, on a written.request of Dr. Winter.

It was alleged in the bill that on March 7, 1921, the date the note was executed, Dr. W. A. Winter was insolvent ; that it was executed within four months of the date of the filing of Dr. Winter’s petition in bankruptcy; that the payee in the note was thereby enabled to obtain a greater per cent, of his debt than Dr. Winter’s other creditors of the same class; and that said company had reasonable cause to believe the execution and acceptance of the rent note would result in a preference in its behalf.

Appellee filed an answer denying the allegations of the bill.

The cause was submitted upon the pleading's and testimony introduced by the respective parties responsive to the issues, which resulted in a dismissal of the bill for the want of equity, from which is this • appeal,;

.After a careful reading of the testimony we have concluded that .the preponderance thereof reflects, that W. A- Winter was insolvent at the time he directed his lessee, Davenport Brothers, to execute the note to J. T. E’argason Company, covering the rents on Lis lands for the year 1921, and that said company had knowledge of sufficient facts to put it upon notice as to the financial condition of Dr. W. A. Winter at the time the note was executed.

Having reached this conclusion, the only remaining question to be determined is whether the transfer of the unmatured rents on the lands to J. T. Fargason Company, to be applied as part payment on valid mortgages upon the lands, constituted a preference under the bankruptcy act. The record reflects that Dr. W. A. Winter had executed two mortgages upon the lands, one to Mrs. S. A. Patrick for approximately $10,000, and one to J. T. Fargason Company for $11,032.45, which were subject to foreclosure when the rent note was executed. Both mortgages were about to be foreclosed when Davenport Brothers, the lessee of the lands, prevailed upon Dr. W. A. Winter to allow them to execute a rent note to J. T. Fargason Company, due the following fall,, covering the rents on the lands for 1921, to be applied, when collected, as payments upon said mortgages, and thereby prevent a foreclosure.

The effect of executing the note to J. T. Fargason Company was to transfer the rents to .it to be applied upon the mortgage indebtedness, and was tantamount to placing the mortgagee in possession of the mortgaged lands. The mortgagee has a right to the possession of the mortgaged property when default is made in the payment of the mortgage indebtedness, and, in this State, may maintain an action for the possession thereof. Reynolds v. C. & B. Co., 30 Ark. 520; Logan v. Bridge Co., 157 Ark. 525. It is also the law of this State that the mortgagee in possession is chargeable with the rents on the mortgaged property, and is required to credit them on .'the. mortgage, indebtedness. Green v. Maddox, 97 Ark. 397; Brickey v. Carter, 119 Ark. 543. As we understand the bankruptcy act, it in no wise interferes with or alters the status of the mortgagee under the State laws where the mortgaged property is situated. In re Hurley, 185 Fed. 851; Humphrey v. Tatum, 198 U. S. 91.

Appropriation of unmatured rents on mortgaged property to the payment of the secured indebtedness by the mortgagee in possession could not diminish the estate of the bankrupt to which the general creditors, are entitled. The trustee in bankruptcy, by proper proceedings, could sell the mortgaged property belonging to the bankrupt, subject to the mortgage indebtedness, and subject the equity therein to payment of the claims of general creditors, but the equity therein is all he could reach as against a mortgagee in possession. In the instant case the mortgagee was in constructive possession of the mortgaged property, and entitled to appropriate the rents to the payment of his mortgage indebtedness, at the time the petition in bankruptcy was filed. We do not think therefore that the transfer of the rents to the mortgagee, in the manner adopted, constituted a preference within the meaning of the bankruptcy act..'

■ The decree is affirmed.