text:
    Longino v. Smith.
    Opinion delivered April 2, 1923.
    1. Husband and wife — ratification of unenforceable contract. —Acts 1895, p. 58, authorizing married women to make executory contracts to convey land, impliedly authorizes a ratification of an executory contract previously 'made which had been unenforceable only because of such disability.
    2. Husband and wife — ratification by married woman of unenforceable contract. — Where, after the passage of Acts 1895, p. 58, a married woman, who, before the passage thereof, had given a bond for title unenforceable when made, knew that the grantee • had .possession and was making improvements thereunder and had made payments for the land to her husband as her agent, she thereby ratified the contract evidenced by the bond for titlé.
    3. Specific performance — ratification of unenforceable contract. — Where a purchaser had possession of land under a bond for title from a married woman which became valid by ratification after the passage of Acts 1895, p. 58, he became entitled to compel execution of a deed upon completion of his payments, and this right was not defeated because he took a deed from his deceased vendor’s husband, who had only a life estate.
    Appeal from Columbia Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      Henry Stevens, for appellant.
    Burchfield, appellant, vendor, purchased the land in controversy from Mrs. Smith, who, with her husband, J. E. Smith, executed a bond for title therefor. Burchfield cleared, cultivated and paid for the land, and Smith, after his wife’s death, executed a deed to him. She was not in possession after bond for title made nor- did she- have a right of action against her vendor, neither did J. E. Smith have curtesy in the land. Smith v. Rob

      értson, 13 Ark. 133; Higgs v. Smith, 100 Ark. 644; Cleveland v. Aldridge, 94 Ark. 53; Strauss v. White, 66 Ark. 170; 39 Cyc. 1886. There is no estate by the curtesy initiate. Const. 1874; McDaniel v. Groce, 15 Ark. 484; 8 R. O. L. 407, see. 20; Hampton v. Cook, 357. Burchfield was the equitable owner of the ’ land. Whittington v. Simmons, 32 Ark. 379; Higgs v. Smith, 100 Ark. 543; Tunstáll, Exr. v. Jones, 25 Ark. 272; 8 R. C. L. 396; Chew v. Soidhwork, Com’r., 5 Rawle 160 Pa.; Welch v. Chandler, 13 B. Mon. 431; 1 Tiffany oil Real Property 836; McKee v. Jones, 6 Pa. State 425; Norton v. McDevit, 122 N. C. 755. Mrs. Smith died in 1897, after Burchfield had paid three years on the land and two years after act 47, Acts 1895, p. 587, authorizing married women to make executory contracts, was approved. She recognized the validity of this contract after the passage of the law, and ratified it. Goulcling v.. Davidson, 26 N. Y. 604; Winnal v. Adney, 3 Bos. & P. 247; Brown v. Bennett, 75 Pa. 420; Trout v. McDonald, 83 Pa. 114; Viser v. Bertrand, 14 Ark. 267; Tucker v. West, 29 Ark. 386; McKinney v. Demby, 44 Ark. 74; Planters’ Fire Ins. Co. v. Ford, 106 Ark. 568; Hoyt v. Western Union Tel. Co., >85 Ark. 473; N. Y. Life Ins. Co. v. Mason, 235 S. W. 422. If 'Burchfield did not hold the land under Mrs. Smith, her bond being invalid, then he held it under Smith and adversely to everybody else. Coogler v. Rogers, 7 So. 391; Downs v. Porter, 54 Tex. 59; Smith v. Robertson, 235 S. W. 847; 1 Cyc. 1098. Heirs of Mrs. Smith barred by limitation. Dowell v. Tucker, 46 Ark. 438; Bender v. Bean, 52 Ark. 532; Carroll v. Carroll, 92 Ark. 625; Reid v. Money, 115 Ark. 1. Smith was also barred of any right of curtesy. Wesington v. Murphy, 2 Head, 672; Stóke v. Slayclen; 8 :Baxt., 307; Guión v. Anderson, 8 Humph. 298; Koltonbrock v. Cracraft, 36 Ohio Stat. 588. Dependent any way on wife’s possession at'death. 'Stuart v.' Ross, 50 Miss. 776; Red,ns v.' Hayden, 43 Miss. 614. Privies' of Mrs. Smith could not claim against Burch-field, the deed conveying the land to- 'him not having been recorded till five years after his deed from Smith was made. Sec. 1537, Crawford & Moses’ Digest. Files v. Law, 115 S. W. 373; White v. Moffett, 108 Ark. 491; Rushing v. Lanier, 111 S. W. 1089; Clark v. Hoover, 110 S. W. 792.

      John H. Crawford and Dwight H. Craivford, for appellees.
    J. E. Smith was entitled to curtesy in the land. If a bond for title was executed therefore by Mrs. Smith, it was void, being made before act March 19, 1895, authorizing married women to make executory contracts to convey land. Sparks v. Moore, 66 Ark. 437. The cases cited by appellant on question of her ratification of said bond for title after the passage of the law are not in point, there being no express promise by her to be bound by it, nor any consideration for such a promise. Neither was she or those claiming under estopped by her conduct. Anders v. Roark, 108 Ark. 248; Fox v. Drewry, 62 Ark. 316. If the wife’s bond for title was not a valid contract, her husband could not have been deprived -of his curtesy estate. Harrod v. Myers, 21 Ark. 592; Bagley v. Fletcher, 44 Ark. 153; Farley v. Stacy, 197 S. W. (Ky.) 636. She could not have been compelled to convey the land under the void title bond, had she received all the purchase money. Fellcner v. Tighe, 39 Ark. 357. No adverse holding of the lands by Burch-field against. Mrs. Smith and her heirs. He went into possession under her bond for title. Britt v. Berry, 133 Ark. 589; Miller v. Miller, 130 Ark. 28; Gee v. Hatley, 114 Ark. 376; 2 C. J. 134, 75. There can be no tacking of disabilities, but there is no such question here. The statute of limitations did not begin to run against Mrs. Smith in her lifetime because of coverture, and at her death her husband’s curtesy consummate vested, and he was entitled to possession. The reversioners under whom appellees claim had no right to possession till the curtesy estate ended, and suit was begun thereafter before the bar attached. Jones v. Freed, 42 Ark. 357;
      Jackson -v. Johnson, 5 Cowen. 74, 15 Ain. Dec. 433. Not necessary for wife to have possession at death tó support curtesy estate. McDaniel v. Grace, 15 Ark. 465, 18 R. C. L. 392. And attempted conveyance of the fee by life tenant only passes his life estate. Smith v. Maberry, 148 Ark. 216. "Wife had right to possession at her death here, not having parted with it by void bond. The failure to record the deed from Mrs. Smith’s vendor can not help appellants, since it showed title still in him and not in her husband. Nor was there any estoppel against D. E. Smith pleaded or proved. Anders v. Roark, 108 Ark. 248. No meeting of minds in execution of bond for title, Burchfield thinking he was purchasing from Smith and not his wife. Nor was there any ratification by her thereafter. Smith, the husband, was entitled to curtesy. His wife was seized of the land and was in possession by her tenant Burchfield, under his contract with her husr band, at time of her death. Const. 1874. Carpenter v. Garrett, 75 1 Va. 129; Jackson v. Johnson, 5 Cowen. 75; 15 Am. Dec. 433; McDaniel v. Grace, 15 Ark. 465; Harrod v. Myers, 21 Ark. 592. Possession follows title. Waite v. Moore, 89 Ark; 19; Millar v. Fraley, 23 Ark. 735; Ringo v. Woodruff, 43 Ark. 469; Gates v. Kelsey, 57 Ark. 523. Presumption that Smith rented the land to Burchfield as his wife’s agent.' See. 5394, Crawford & Moses’ Digest. Hoffman v. McFadden, 56 Ark. 217. Wife was owner, and entitled to possession at her death. Bond was void, as already shown. Sparks v. Moore, 66 Ark. 437. No ratification after passage of act' authoring married women to make executory contracts, as chancellor found. Neither the tenant by the curtesy nor his vendee can hold adversely to remainderman until death of life tenant. Smith v. Maberry, 148 Ark. 216; J ones v. Freed,- supra.

      Henry Stevens, in reply.
    The testimony shows that Mrs. Smith ratified bond for title and contract of sale of land after the passage of the act authorizing married women to make executory contracts. 66 Ark. 437, cited by appellees, does not show the husband entitled to curtesy even under the facts there, which differ from the present case. Only possession at wife’s death can give husband curtesy estate now. Const. 1874. Her property separate property. Sec. 7, art. 9, Const.
   Smith, J.

Appellants, who were the plaintiffs below, brought this suit to quiet their title to a forty-acre tract of land. They claimed by purchase from J. W. Burchfield, whose title, they allege, became perfect before his sale to them, by reason of his long-continued adverse possession thereof. The deed from Burchfield to them was dated March 11, 1921. The defendants obtained deeds from the heirs of Alice Smith, who died intestate on the - day of May, 1897.

The testimony established the following facts: In December, 1893, or January, 1894, Mrs. Smith and J. E. Smith, her husband, executed to Burchfield a bond for title to the land in litigation. The title to the land was in Mrs. Smith, but her husband acted for her in the transaction, and was her authorized agent. After contracting to buy the land, Burchfield commenced to clear and cultivate it, and by the end of 1896 had it all in cultivation except five acres. Burchfield made payments every year out of the proceeds of the sale of his cotton, which Smith handled, after paying Smith his supply bills. Burchfield completed his payments and received his deed from Smith January 7, 1904. At the time of Mrs. Smith’s death she was survived by six minor children, in addition to her husband, who died July 18, 1919.

The prayer of the complaint was denied, and it was dismissed for want of-equity.

The action of the court is defended in a very interesting brief in which the following argument is made. Mrs. Smith was a married woman when the bond for title was made. The bond for title was an executory contract, and unenforceable as such. Mrs. Smith never made a deed to Burchfield, and after her death her husband became entitled to the possession of the land as tenant by the curtesy, and his deed purporting to convey the fee was effective only as a conveyance of his life estate, and the statute of limitation was not set in motion against her lieirs, the remaindermen, until the death of the husband, the life tenant, and this suit was brought before this adverse possession ripened into title.

The trouble with the argument on behalf of the remaindermen is that they blow both hot and cold on the effect of the bond for title.

It is true that Burchfield’s entry under the bond for title was permissive, and that he remained in possession under this contract until after the death of Mrs. Smith before he obtained his deed. But this bond for title should be given effect, or it should be disregarded. It, should not be regarded as a valid instrument for the purpose only of making Burchfield’s entry permissive, but invalid for all other purposes. If it was valid as a contract, then its conditions were performed by Burch-field by payments made to Mrs. Smith’s constituted agent; and if this is true, then Burchfield, in ecmity, would be entitled to a deed, if the one he obtained from Smith did not convey the title. We prefer this view of the case. The bond for title was voidable, when made, because it was a married woman’s executory contract, and it remained a voidable executory contract until after the passage of the act of March 19, 1895 (Acts 1895, p. 58), authorizing married women to make executory contracts to convey real estate. Mrs. Smith did not die until May, 1897. So she lived two years after the passage of the act authorizing her to make an executory contract, and it is insisted that, after the removal of her disability, she ratified the contract.

We regard this as the controlling question in the case. After the passage of the act of 1895, supra, a married woman was authorized to make an executory contract to convey land. As an incident to that 'right; she likewise was authorized to ratify an executory contract of that kind previously made, which had been unenforceable only because of her disability. Did Mrs. Smith ratify the contract?

"We are constrained to answer this question in the affirmative. The parties all lived in the neighborhood of the land. Smith was unquestionably his wife’s agent in the transaction. He put Burchfield in possession of the land as purchaser under the bond for title. Burch-field immediately began to clear and improve the land, and by the end of 1896 had it all in cultivation except five acres. The clearing was all done in Mrs. Smith’s life time, and she must have known of -it. She had actual knowledge that Burchfield was on the land, for her bond for title entitled him to enter thereon, and a substantial part of the clearing was done after the passage of the act of 1895. She knew that the consideration was $350, for this was the consideration recited in the bond for title, and she knew, as a matter of law, that when it was paid Burchfield would be entitled to a deed.

She had actual knowledge that Burchfield was delivering cotton to her husband, for on one occasion Burch-field brought two bales of cotton to Smith’s yard,_ and was about to throw the cotton off the wagon, but there had been a heavy rain and the yard was wet and muddy, and Mrs. Smith said to Burchfield, “I would never throw that cotton off until I had sold it,” and Burchfield obeyed this direction.

There is nothing in the record that calls into question the good faith of this transaction. Smith and his wife are both dead, yet Burchfield, who is not a party to this litigation, manifests- no disposition to take advantage of that fact as a witness.by stating that payments were made to Mrs. Smith directly; but the circumstances were such that Mrs. Smith must have known that payments were being made to her agent, and that her vendee was, in good faith, clearing the land — all this after the removal of her disability; and she must therefore be held to have ratified the contract of sale evidenced by the bond for title.

The land was not very valuable at the time Burch-field contracted to buy it, as is evidenced by the fact that he only agreed to pay $350 for it. We do not know when the last payment was made, nor what amount was paid after Mrs. Smith’s death, but we do know that the balance was paid to Smith, and that in 1904 he executed a deed to Burchfield, pursuant to the bond for title.

Smith’s children were minors, and lived with him. It does not appear what estate their mother left, nor whether there was any administration on her estate. We do not know by what authority Smith made collections of the unpaid purchase money after his wife’s death, if he made any. This point was not developed, and any collections thus made must have been comparatively small, and after this lapse of. time we think it fair to assume that Smith properly accounted for such collection, if any he made.

Burchfield had possession under a bond for title which, by ratification, became valid. This possession began in 1894 and continued uninterrupted since that date until the execution of his deed to the plaintiffs, who have since been in possession. Burchfield obtained a deed from Smith in 1904, which, if valid for no other purpose, at least evidenced the fact that Burchfield had paid the purchase money called for in the bond for title. Burch-field conveyed to the plaintiffs here March 11, 1921, after lie had had seventeen years’ possession, and the only thing which is suggested as having prevented this possession from ripening into title is that, after Mrs. Smith’s death, her husband became tenant by the curtesy and entitled to the possession as such, and the deed from him in 1904 was éffective as a conveyance of his life estate and valid as such, and operated to prevent the running: of the statute of limitations.

But Burchfield’s possession was not referable to the deed from Smith. He had a prior possession and the x’ight of possession under his bond for title, and, in ■equity, he became entitled to a deed from Mrs. Smith upon the completion of his payments, and if she were alive she could be compelled to execute a deed, and this right is not to be defeated because Burchfield took a deed from the life tenant. Burchfield was entitled to more than Smith’s deed gave him, and equity will award him now the relief to which he became entitled when he completed the payments on his land.

To that end the decree of the court below will be reversed, and the cause remanded, with directions to caucel the title of the defendants.


source: Caselaw Access Project

author: Humphreys, J. McCulloch, C. J.,

license: Public Domain

text:
    Butler v. Butler.
    Opinion delivered April 2, 1923.
    1. Divorce — residence in state. — Evidence held not to show plaintiff’s actual residence in the State for one year next before the commencement of suit, as required by Crawford & Moses’ Dig., § 3505.
    2. Divorce — suit to annul decree — laches.—Where a husband sued ‘for divorce in Arkansas, and immediately thereafter brought a similar suit in Missouri but told his wife that the decree obtained in the Arkansas suit in 1916 was void, and they continued the marital relation until 1918, when he left her without cause, held, in a suit brought in 1921 to vacate the Arkansas decree, that she was not guilty of laches.
    3. Divorce — suit to annul decree — laches.—Where a -husband began suit for divorce in Arkansas, and induced his wife to come to Arkansas to serve process on her, and thereafter began suit ■in Missouri, stating that the decree in the Arkansas suit was void, her failure to make defense in that suit did not preclude her from suing to annul the decree.
    Appeal from Lawrence Chancery Court, .Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      Smith & Gibson, for appellant.
    There was no fraud shown in obtaining the decree, and appellant was at the time and had for years before been a resident of the State. Appellee was barred by laches, having waited over five years before proceeding to have decree of divorce vacated. 15 R. C. L. 146; Gorney v. Gorney, 97 Ark. 117,134 S. W. 813. 1 Black on Judgments, 313; 2 Bishop, Marriage & Divorce, 1533. Cause should be reversed and dismissed.

      Jerry Mulloy, for appellee.
    The chancellor’s findings are supported by a preponderance of the testimony, and will not be disturbed on appeal. Cherry v. Brissolara, 89 Ark. 309; 116 S. W. 668; 91 Ark. 69, 120 S. W. 400; 91 Ark. 149, 120 S. W. 843; 101 Ark. 368, 142 S. W. 856; Kissire v. Phmkett-Jarrell Go., 103 Ark. 473, 142 S. W. 567; Evans v. Wills, 212 S. W. 328. Statute on divorce contemplates actual residence by plaintiff in State. 194 S. W. 498; 15 S. W. 459. 4 Enc.' of Evidence 749. No laches in bringing suit to vacate decree. 10 R. C. L. 403. Williams v. Bennett, 75 Ark. 312, 88 S. W. 600; 16 Cyc. 170; McKneely v. Terry, 61 Ark. 527, 33 S. W. 953. Laches, if not pleaded, waived. 16 Cyc. 170; Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479; Wilson v. Anthony, 19 Ark. 16; 10 R. C. L. 408.
   Humphreys, J.

On January 4, 1921, appellee instituted suit against appellant, in the Eastern District of Lawrence Chancery Court, to vacate a decree of divorce procured on July 13, 1916, in said court, by appellant against appellee, alleging that the decree was obtained through fraud practiced upon the court and her. It was alleged in the appeal that, in order to obtain the decree, appellant falsely represented to the court that he was and had been a resident of the said State of Arkansas one year next before the commencement of the suit, and to appellee that he had dismissed the suit; that appellee had a meritorious defense to the alleged cause of action, which she would have interposed had she not been misinformed concerning the dismissal of the case.

Appellant filed an answer denying the allegations of fraud, and pleading laches in bringing suit to set aside the decree.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree annulling the' divorce decree rendered on the 13th day of July, 1916, wherein appellant was plaintiff and appellee defendant, upon the ground that appellant was not a resident of the State of Arkansas when the decree was rendered, nor for one year next before the commencement of the suit. An appeal was duly prosecuted to this court, and the cause is here for trial de novo.

Appellant and appellee were intermarried in Lawrence County, Arkansas, on January 21, 1909. They located in Walnut Ridge, but later moved back to Hoxie. Appellant was a locomotive engineer, his run being out of Hoxie, Arkansas, to Poplar Bluff, Missouri. He purchased a home in Hoxie. Appellee testified that on April 3, 1912, the family, consisting of appellant, herself, and child, moved from Hoxie to Poplar Bluff, taking all their household goods, except a few pieces which were sold; that they lived together in Poplar Bluff until March or April, 1916, at which time appellant left her and took up his abode on Park Avenue in said city; that a short time after the separation appellant induced her to go to Hoxie on business, where, without any warning, a summons in a divorce suit was served upon her; that, before the return day thereon, appellant commenced a divorce proceeding in Missouri, and told her he had dropped the suit in Arkansas; that, relying upon this statement, she made no defense to the suit in Arkansas, although she had a meritorious defense thereto; that she had never offered indignities to her husband, but, on the contrary, had been devoted and kind to him; that appellant failed to get a decree of divorce in Missouri, and toward the latter part of July informed her that he had gotten a decree in Arkansas which was void, whereupon they renewed and continued their marital relationship until July 1, 1918; that she relied upon his representation that the decree was void, and remained under that belief until she consulted an attorney a short time before the institution of this suit; that she did not go to Hoxie for the purpose of being- served with a summons in the divorce suit of appellant, but was surprised when same was served upon her. Mrs. J. H. Turner testified that when Mr. and Mrs. Butler went away from Hoxie they said they were moving to Poplar Bluff. T. L. Moore testified that Mr. Butler rented a house from him in Poplar Bluff for occupancy by himself and family. Louie Byrkit testified that appellant and his family resided together in Poplar Bluff the latter part of 1915 and the first part of 1916; that appellant was with his family a great deal of the time. Appellant admitted that he maintained and supported his family in Poplar Bluff from 1912 until March or April, 1916, paying the rent on the various houses in which they lived, and residing with them when not out on his run to Hoxie. He also admitted that, after the rendition of the decree, he lived with and maintained his family until July 1, 1918. Appellant testified in his own behalf that, at the time his wife moved to Poplar Bluff, he rented his home place, reserving a room, which he furnished, and occupied when at Hoxie; that he spent more time in Hoxie than in Poplar Bluff; that he paid his poll tax and voted in Arkansas;that he did not represent to appellee that he dismissed the suit in Arkansas, but that the decree obtained by him was void. He was corroborated by Ellen Ebert in refererence to occupying a room in his house, and being- in Hoxie more than in Poplar Bluff. After the instant suit was commenced, appellant brought suit in Howell County, Missouri, for a divorce from appellee, and took depositions of several witnesses in that case. The main prayer of the bill filed in Howell County was to dissolve the bonds of matrimony between appellant and appellee. The record also reflects that, after the family went to Poplar Bluff, appellant bought a motor truck at a cost of $900 and engaged in the traffic business in that city, and later in Willow Springs, Missouri, and that he purchased a Ford automobile for use at Poplar Bluff.

Appellant’s first insistence for reversal is that the court erred in finding that appellant had not been a resident of the State of Arkansas for one year next before the commencement of his action on June 3, 1916. An actual residence in this State for one year next before the commencement of an action for divorce is necessary, in addition to the legal cause of divorce, in order to obtain a decree either from bed and board or from the bonds of matrimony. Crawford & Moses’ Digest, § 3505. While the testimony was in sharp conflict, we think the preponderance thereof shows that appellant’s real or actual residence, prior to his suit in Arkansas, was with his family in Missouri. He maintained a home there for four years next before the commencement of his suit, which was occupied constantly by his family and by all of them when he was not out on his run. He had a traffic business and kept his touring car there. When they moved to Poplar Bluff, it was with the avowed intention of living there, according to the testimony of Mrs. Turner, one of appellant’s own witnesses. They sold some of their furniture, and shipped the balance from Hoxie to Poplar Bluff, and rented the Hoxie home indefinitely. It is true that afterwards appellant procured a room from his tenant, which was not being used, furnished and occupied it when at that end of his run. We do not regard this as a 'controlling fact in establishing a residence at Hoxie, for it was necessary for him to have a place to sleep when away from his family in the performance of his duties as engineer. Ordinarily one’s bona fide residence is with his family. WThen otherwise, it is an exception. We find nothing in the record necessarily bringing appellant within the exception to the general custom. It is not claimed that the family was away from Hoxie temporarily for school or other purposes. According, to the weight of the testimony, they were being maintained there permanently by appellant, and he was regarded by them and his neighbors as the head of the household for a number of years next before the institution of his divorce suit in Arkansas.

Appellant’s second insistence for reversal is that appellee was barred by laches from bringing this suit to set the decree aside, even though obtained through fraud. Appellee was informed by appellant the latter part of July, 1916, that he had obtained a decree of divorce from her in Arkansas. She did not bring this suit to annul the decree for more than five years after receiving the information. Ordinarily this length of time should be treated as an unreasonable delay in seeking a remedy. Especially should it be so if the status of the parties had been changed. Neither appellant nor appellee have changed their status. According to appellee’s testimony, she was lulled into nonaction by appellant’s representation that the decree in Arkansas was void; that, through this representation, she was induced to renew and continue the marital relationship until July 1,1918, at which time appellant left her without cause; that she did not proceed then because she rested under the belief that the decree was void, until informed otherwise by appellant a short time before the institution of this suit. While appellant denies making the representation, yet his conduct and acts indicate that he did so. He admits that, a short time after the decree was rendered, he assumed his former place in the household as the head of the family, and that they continued to occupy the same home until July 1, 1918. Unless he represented to appellee that the decree was void, and, unless he really thought so.himself, his resumption of the marital relationship was unfair and without due regard to the rights of his family or society. The. fact that he brought suit in the Missouri court to obtain a decree, immediately after the institution of 'this suit,' strongly indicates that he, in good faith, believed that the Arkansas decree was void. If he believed this himself and acted upon it, it is easy to see how appellee might have done so. On account of the close relationship of the parties, the same degree of diligence should not be exacted of her as if she had been dealing with a stranger. Under all the circumstances of the case she was not guilty of laches. Neither was she precluded from bringing this suit because she made no defense to the original suit. It is true she was served with summons to appear in that case, but before the day of trial, according to the weight of the evidence, she had been misled into the belief that the suit had been dismissed.

No error appearing, the decree is affirmed.

McCulloch, C. J.,

(dissenting). I do not agree with the majority of the court in the conclusions announced with respect to the facts of the case, but my dissent is not based on that ground, for I would not deem it proper to record a dissent merely because I differ with the other judges on the facts of a case. The undisputed facts in the case, however, are that appellee waited five years after the decree of divorce was rendered and after she had knowledge of its rendition. She makes excuse for part of the delay by the statement that appellant told her shortly after the decree was rendered that it was void, and that he lived in the samé house with her for about two years thereafter; but she offers no excuse or explanation whatever of the delay of three years after all relations between her and appellant had actually terminated. She testified that her husband occupied the same house with her and the children at times for about two years after the rendition of the decree. He was .a railroad conductor1, running from Hoxie, Arkansas, to Poplar Bluff, Missouri, with a lay-over at Hoxie, and he maintained a room at Hoxie, and was there more than he was at Poplar Bluff. . •

Conceding that the delay of two years in suing to set aside the divorce decree is excused by the fact that appellant continued his married relations with appellee, I think that appellee is barred by the further delay of three years, which is not disputed or excused by any fact shown in the record. ~ « • •

In our decisions we have recognized the rule that the party against whom a judgment or decree has been rendered, especially a decree for divorce, will be barred by unreasonable delay from an attempt to set aside the decree. Womack v. Womack, 73 Ark. 281; Corney v. Corney, 97 Ark. 117; Whitford v. Whitford, 100 Ark. 63. In one of these cases we quoted with approval the folloAving statement from Mr. Bishop in his work on Marriage and Divorce (Yol. 2, sec. 1533): “There are excellent reasons why judgments in matrimonial causes, whether of nullity, dissolution, or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with .and after it so many collateral rights and interests of third persons, that uncertainty and fluctuation in it Avould be greatly detrimental to the public. And particularly to an innocent person who has contracted a marriage on faith of the decree of the court, the calamity of having it reversed, and the marriage made Amid, is past estimation. These considerations have great weight with the courts, added whereto there are statutes in some of the States according a special inviolability to such judgments.”

It will be noted that the learned author lays emphasis on the application of the doctrine of laches where a subsequent marriage has been contracted, but he only mentions it for the purpose of emphasis, and says that this doctrine is particularly applicable in such a case, but the general doctrine is stated that, on account of the public interest in the matrimonial status of parties, stability must be accorded to divorce decrees.

In Womack v. Womack, supra, we held that the wife was not barred by delay, or remarriage of the husband, because the remarriage had occurred after the decreé in the suit to annul .a former decree of divorce had been rendered and while the appeal to the Supreme Court was pending. In Corney v. Corney, supra, we held that the wife was barred because she waited an unreasonable length of time and her husband had remarried, but we quoted from Mr. Bishop the doctrine stated above merely as an additional reason, on account of the remarriage, for holding that the wife was barred by the delay.

Society is interested in the relations between the sexes, whether there is any change in the status of the parties or not, and, regardless of a change, an unreasonable delay bars the right of one of the parties tó annul a decree for divorce. It is therefore no excuse for the delay merely to show that there has been no change in the status of the parties. Time itself necessarily works a change in the status of parties who have been divorced by a decree, ’and nothing else need be shown to bar one of the parties from asserting the right to annul the decree if the delay is unreasonable and without excuse. The fact that the parties acquiesced for a long period in a decree of divorce by maintaining themselves separately is enough to give the public such an interest in the.maintenance of the relation to afford grounds for denying relief to either of the parties for the purpose of setting aside the decree and reestablishing the original marital status.

I am of the opinion therefore that appellee is barred by unreasonable and unexplained delay, and that there was no reason shown at this time why she should be permitted to annul the decree for divorce and thereby reestablish between her and appellant the relation of husband and wife.


author: Humphreys, J.

text:
    Wooten v. Farmers’ & Merchants’ Bank.
    Opinion delivered April 2, 1923.
    1. Homestead — abandonment.—Abandonment of & homestead depends almost exclusively on the intent of the owner as ■ ■ revealed by the facts and circumstances of each particular case.
    2. Homestead — abandonment.—Evidence held to sustain a finding of an intention to abandon a homestead.
    3. Acknowledgment — conclusiveness of officer’s certificate.— While a married woman may, against all the world, show that she never made any acknowledgment at all, and that the certificate is either a forgery or an entire fabrication of the officer, yet if she has actually made some kind of acknowledgment before an officer qualified to take it, his certificate will be conclusive as to the terms of the acknowledgment and the concomitant circumstances, in favor of all persons who, themselves innocent of fraud or of collusion to deceive or influence her, have taken- the . instrument on the faith of the certificate.
    4. Acknowledgment — telephone acknowledgment. — Where . a mlarried woman signed a deed relinquishing her dower nights, her acknowledgment taken by an officer over the telephone held sufficient, under the rule stated in the preceding paragraph.
    Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Aaron McMullen and Gautney ■& Dudley, for appellant.
    The court erred in finding appellant had abandoned his homestead, the Reynolds tract of land, and the deed of trust conveying same, a valid instrument. Said deed was void, the appellant, wife' of the grantor, not having joined in its execution and acknowledged same as the law requires. Secs. 5542,1521, 1524, Crawford & Moses’ Digest. Mrs. Wooten testified she did not -sign the deed of trust nor acknowledge same. Her husband testified also that she did riot, but that he signed her name to it, and the notary testified that he took her acknowledgment over the telephone. Law required her personal appearance before the officer taking her acknowledgment, and it could not be taken over a telephone. Nevada County Bank v,- Gee, 130 Ark. 312; Waldon v. Blassengame, 130 Ark. 448; McLeod v. McLeod, 130 Ark. 481; Polk v. Brown, 117 Ark. 321. It is undisputed that the Reynolds place was appellant’s homestead when the deed of trust was executed on December 22, 1919, and no subsequent abandonment could operate to cure its invalidity. Pip-kin v. Williams, 57 Ark. 242; Taylor v. TIargus, 60 Am. Dec. 606; Alt v. Bankholzer, 12 A. S. R. 47; Am. Sav. & L. Assn. v. Burghardt, 61 A. S. R. 507. When there is an intention to return to one’s homestead, a temporary absence does not operate as an abandonment. Steioart v. Pritchard, 101 Ark. 101; McDaniel v. Gonlan, 134 Ark. 519. Even had Wooten, the husband, attempted or contracted to sell the homestead, he could fail to do so without being liable to damages when his wife did not join. Ferrell v. Wood, 149 Ark. 376. The absence of the ow¡ner from the homestead, however long continued, will not constitute an abandonment, without a fixed intention to renounce and forsake, or to leave never to return. Euper v. Alkire, 37 Ark. 283; Brown v. Watson, 41 Ark. 309. There is nothing in this entire record indicating an intention on part of appellants to abandon their homestead, and the decree as to the homestead tract should be reversed.

      Basil Baker, for appellees.
    If appellant had a homestead on the Reynolds place, he must have held the constant .and abiding intention of returning to it after moving away, his absence must have been merely temporary, in order not to constitute an abandonment of it. Euper v. Alkire, 37 Ark. 283; Gates v. Steel, 48 Ark. 539; Steioart v. Pritchard, 101 Ark. 101. Husband can abandon without wife’s consent. Farmers’ Building do L. Assn. v. Jones, 68 Ark. 76; Curtis v. De-Jardins, 55 Ark. 126; Pipkin v. Williams, 57 Ark. 242; Sidway v. Lawson, 58 Ark. 117; Whipple v. Keith, 134 Ark. 202; Wolf v. Hawkins, 60 Ark. 262; Brown v. People’s Bank, 150 Ark. 136; Bernhart v. Gorman, 131 Ark. 116. Doctrine of estoppel applies. Green v. Goldwav er, 99 Ark. 260; Sumpter v. Ark. Nat’l. Bank, 69 Ark. 224; 21 C. J. 1202, sec. 205. Effect of declaration of intention not to return. Demi v.' Cole, 141 Ark. 177; Long v. Hoffman, 103 Ark. 574; Cunningham v. Doilman, 151 Ark. 409; Gray v. Bank of Hartford, 137 Ark. 232; McDaniel v. Conlan, 134 Ark. 519; Vestal y. Vestal, 137 Ark. 309. The qualified intention was an abandonment. Wolf y. Haiukins, 60 Ark. 262. Particular form of acknowledgment of deed to homestead not required of wife. Pipkins v. Williams, supra; Sledge & Norfleet Co. v. Craig, 87 Ark. 371; Ward v. Stark, 91 Ark. 268.
   Humphreys, J.

Appellees brought suit against appellants in the Poinsett Chancery Court to foreclose a deed of trust executed by appellants to appellees upon the SEi/|., NW%, section 26, township 11 north, range 7 east, and other lands in said county, to secure a large indebtedness.

Appellants interposed the defense that the deed of trust was invalid as to the dower interest of Mattie L. Wooten in.all of the lands, on the alleged ground that she did not sign or acknowledge the instrument, and invalid as to the interest of both in the forty-acre tract particularly described above, on the alleged ground that it was their homestead, and in executing the instrument there was a failure to comply with the law necessary to convey homesteads.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree adverse to appellants, from which is this appeal.

Appellant, Gr. C. Wooten, bought the forty-acre tract above described in the year 1916, and impressed it as his homestead by actual occupancy and otherwise. He also purchased the adjoining forty-acre tract, called the Wall place. He built a barn upon the Wall place and made other improvements upon both places of a substantial and permanent character. About January 1, 1918, he leased the plantation known as the Chapman & Dewey lands and moved upon and occupied them during the years 1918 and 1919, but with the declared purpose of returning later on to the Reynolds place, which he called his home place. While occupying these leased lands, he purchased two other large tracts, which adjoined, one known as the Harris and the other as the Marr place. These were good places, well located for farming purposes, and near the school. In order to make the initial payment on the Harris place, he executed the deed of trust in question to appellees on the 22nd day of December, 1919. J. D. DuBard, the cashier of the bank, testified that when If. C. Wooten applied for and obtained the loan he said he intended to sell the Wall and Reynolds places, and, as they were sold, to apply the proceeds to the payment of the debt, whereupon he prepared the notes and deed of trust and gave them to Wooten to be executed; that Wooten returned them duly executed and received the money; that in February or March, 1921, Wooten sold the Wall place to Schoenberger & Blum and applied the proceeds to the payment of the debt, according to promise; that Wooten sold the Reynolds place to Dr. Sims, who executed his note for $2,000 to cover the cash payment which was to be made after Wooten borrowed and placed a $2,000 mortgage on the place, which mortgage Sims was to assume ; that the sale was not finally consummated because the money market tightened up and prevented Wooten from borrowing $2,000 on the long-time paper, and because Sims was unable to get the money to make a cash payment; that he examined the signatures on the deed of trust and discovered that Mr. and Mrs. Wooten’s names were signed by different persons in different colored ink; that in September, 1921, he demanded a payment upon the indebtedness; that Wooten refused to pay anything, and said, “Well, I have good grounds to scrap you on, and I might as well tell you now as later; I forged my wife’s name to the deed of trust which you hold, and if you insist on carrying this into court, it may send me to the penitentiary, but it won’t make you any money; but if you let me alone I will pay it. ”

The record reflects that appellant made an oral, sale of che Reynolds ¡place and received -some earnest money on it, ibut afterwards backed out and returned the money and offered to sell it to others; it also reflects that he moved off of the leased land to the Marr place, and made a number of improvements upon it and the Harris place, such as screening and repairing the main dwelling, building tenant houses, planting out an orchard, building a large barn, etc.; it also reflects that, during the time he was improving the Marr and Harris places, he told friends and neighbors that he intended to make the Marr place his home; it also reflects that he had a change for the worse in fortune, due to the slump in the price of cotton, and, when" pressed by the bank and other creditors, hé moved, at -an unusual time of the year, back • to the Reynolds place, claiming that it had always been their homestead. The following testimony, in sub-stance, appears in the record concerning the execution and acknowledgment of the deed of trust: Gr. C. Wooten testified that he signed his name to the notes and deed of trust at the bank, and signed his wife’s name to them at Williams’ store; that he signed her name because he knew she would not do so at his request; that he signed her name without her knowledge or consent, and did not inform her that he had done so until the year 1921; that he took.the papers to F. R. Proctor, notary public, and told him to call his wife over the telephone and take her acknowledgment; that he left the papers with the notary, and got them later in the day; that he took them to Mr. BuBard, and called his attention to the fact that he had signed his wife’s name to them. Emmif Wooten, appellant’s son, who was with him at the time, also testified that his father called Mr. DuBard’s attention "to the fact that he had signed his mother’s name. Mr. Du-Bard denied that his attention was called'to this-fact,' and said if if had been he 'would not-have aceeptéd -'the-papers; Mrs. Mattie L; Wóótén testified-that -she did not sign the notes and mortgage ’ or authorize her bus.-band to sign her name to them, and. that she was never requested to sign them, and would not have done so had such a request been made; that she never acknowledged the execution of the deed of trust before F. R. Proctor; that she did not know Mr. Proctor. F. R. Proctor testified that G. C. Wooten brought the deed of trust to him and requested him to take Mrs. Wooten’s acknowledgment over the telephone; that he was personally acquainted with both G. C. Wooten and his wife, as they had been trading in the store; that, pursuant to the request, he called Mrs. Mattie L. Wooten over the telephone at her home, recognized her voice, and told her that Mr. Wooten had brought him a deed of trust and requested that he take her acknowledgment to it; that he asked her if she had read and signed it and understood what it was. She said that it was all right, and acknowledged that she had executed it; that G. C. Wooten remained near him while he telephoned to Mrs. Wooten, and could hear the questions he asked her; that his name and the name of G. C. Wooten were signed in the same sort of ink; that Mrs. Wooten’s name was signed with a different kind of ink. G. H. Williams testified that he remembered when G. C. Wooten came into his place on business to get Mr. Proctor to take the acknowledgment in question; that Mr. Proctor rang and called for Mrs. Wooten; that he heard Mr. Proctor ask if it was Mrs. Wooten, and then whether she had signed the deed of trust, and if she knew what she was signing, and if she had signed it of her own free will; that he was standing within eight feet of the ’phone at the time.

Appellants make two contentions for a reversal of the decree, the first being that the court erred in finding G. C. Wooten had abandoned his homestead right in the Reynolds place, and second, in finding that the deed of trust was executed in manner required to waive dower right of Mrs. Mattie L. Wooten in the lands.

(1) This court is committed to the doctrine that the abandonment of the homestead depends almost exclusively upon the intent of the owner, as revealed by the facts and circumstances of each particular case. Euper v. Alkire, 37 Ark. 283; Gates & Bro. v. Steel, 48 Ark. 539; Stewart v. Pritchard, 101 Ark. 101. Our interpretation of the testimony, after a very careful read-' ing thereof, is that appellant left his home place with the intention of returning to it, and that he held this intention until he decided to buy the Harris and Marr places, which adjoined each other. All his declarations and acts up to that time unerringly indicated a temporary absence only, and an intention to return to the Reynolds place, which he had impressed, with the homestead character by residing thereon and otherwise. All his declarations and acts after he decided to purchase the Harris and Marr places, until financial troubles overtook him, indicated just as unerringly that he had changed his mind and never intended to return to the Reynolds place, but, on the contrary, intended in the future to abide upon the Marr place, including, perhaps, all or a part of the Harris place. At that time he not only declared his intention to make the Marr place his home, but borrowed money and executed a deed of trust in question to make the initial payment on the Harris place, under a distinct promise to sell the Reynolds and Wall places and apply the proceeds on -the payment of the indebtedness. In keeping with said declarations and promise, he moved to the Marr place and made valuable improvements .thereon, and sold the Wall place and applied the proceeds on said indebtedness. He also contracted to sell the Reynolds place, and deposited the $2,000 note to cover the cash payment therefor in the bank, to be applied on said indebtedness when same was paid. He permitted the improvements on the Reynolds place to deteriorate during the time he was improving the Marr and Harris places, and made no move to return to the Reynolds place until he became unable to extricate himself from financial entanglements. The finding of the trial court on the question of aband.onment was in accordance with the weight of the evidence; -

(2) The trial court found that Mrs. Mattie L. Wooten signed the deed of trust in question. The substance of the testimony bearing upon this point has ibeen set out herein. The testimony is in sharp conflict and so evenly balanced that we are unable to say the finding of the court was contrary to the clear preponderance of the testimony. The court’s finding upon that point is therefore sustained. The trial court also found that Mrs. Mattie L. Wooten acknowledged the execution of the instrument over a telephone. This finding is in accordance with the weight of the evidence. The only remaining question to be determined is whether her acknowledgment through the telephone is sufficient in the law to relinquish her dower interest in the lands. The deed of trust, upon its face, purports to relinquish the dower right of Mrs. Mattie L. Wooten in the lands described therein. The certificate of acknowledgment, on its face, is regular and contains all statutory requirements of certification necessary to relinquish her dower right in said lands. The statutory law with reference to the relinquishment of dower rights in this State is embraced in §§ 1506 and 1524 of Crawford & Moses’ Digest, which are as follows:

“Sec. 1506. A married woman may relinquish her dower in any of the real estate of her husband by joining with him in the deed of conveyance thereof, or by a separate instrument executed to her husband’s grantee or any one claiming title under him, and acknowledging the same in the manner hereinafter prescribed.”

“Sec. 1524. The relinquishment of dower of a married woman.in any of her husband’s real estate shall be authenticated - and the title passed by such married woman voluntarily-appearing before, the’proper court, of officer, and,..in-.the absence.-, of her-husband, declaring that-.she had, .of her own free will, signed the relinquishment, of dower for the purposes therein contained arid set forth, without compulsion or undue influence-of her husband.” In construing these statutes- this court said, in the case of Donahue v. Mills, 41 Ark. 421: “It is now the settled doctrine of this court, as laid down in the opinion by Chief Justice English, in Meyer v. Gos-sett, and we still think the only safe doctrine, that whilst a wife may, against all the world, show that she never made any acknowledgment at all, and that the certificate is either a forgery or an entire fabrication of the officer, yet if she has actually made some kind of acknowledgment before an officer qualified to take it, his certificate will be conclusive as to the terms of the acknowledgment, and the concomitant circumstances, in favor of all persons who, themselves innocent of fraud or of collusion to deceive or influence her, have taken the instrument on the face of the certificate. 38 Ark. 377.”

Mrs. Mattie L. Wooten’s acknowledgment of her relinquishment of dower comes within the rule thus announced, and is sufficient in the law. According to the weight of the evidence, the certificate of acknowledgment was neither a forgery nor a fabrication of the officer, who made it.

The decree is affirmed.


author: McCulloch, C. J.

text:
    Thomas v. Street Improvement District No. 296.
    Opinion delivered April 9, 1923.
    1. Municipal corporations — improvement district — second assessment. — Crawford & Moses’ Dig., § 5647 et seq., under which Street Improvement District No. 296 of Little Rock was created, places no limit on the time within which -assessments shall be made, and where an attempt to complete .the list of assessments proved to ibe improper or erroneous, it was still within the power of the hoard of assessors to assess the property and file a list thereof.
    2. Municipal corporations — attack on assessment list — limitation. — Under Crawford & Moses’ Dig., § 5668, providing that an action to test the validity of -an assessment of benefits in an improvement district must be filed within 30 days, held where an ordinance was passed levying assessments on real property in a street improvement district and was duly published, an action by a real property owner to restrain the board from enforcing payment of assessments, commenced more than thirty days after publication of the ordinance Was not brought in apt time.
    Appeal from Pulaski Chancery Court; Jolm E. Marlineau, Chancellor;
    affirmed.

      Will G. Alcers, for.appellant.
    Commissioners of an improvement district have no power to withdraw an assessment of benefits and substitute therefore a new assessment of benefits, and such assessment and the city ordinance confirming same are void. Kirst v. Improvement Dist., 86 Ark. 1.

      Wallace Townsend, for appellee.
    No ordinance of the city was passed relating to the first or withdrawn assessment, but the substituted assessment of benefits was duly’ confirmed by ordinance, and this suit was filed fifty days after the publication of the assessment ordinance. Can not be attacked .after thirty days. Sec. 5668, Crawford & Moses’ Digest. Any one failing to attack the finding of the city council as to a majority haviug signed the petition within thirty days after such finding is made is barred, notwithstanding the petition may lack a majority. Jacobs v. City of Paris, 131 Ark. 28; Waters v. Whitcomb, 110 Ark. 511; Pope v. Nashville, 131 Ark. 429. 86 Ark. 1, not in point on question, that suit having been brought before assessment ordinance was passed. Attack on assessment which council had referred back to the assessors with directions barred after thirty days. Ingram v. Thomas, 150 Ark. 443; Ahern v. Board of Improvement, 69 Ark. 68; also Board of Improvement v. Offenhauser, 84 Ark. 257. Boles v. Kelley, 90 Ark. 29; Webster v. Ferguson, 95 Ark. 575; Board v. Pollard, 98 Ark. 543; Meyer v. Board, 148 Ark. 623; Stiewel v. Fencing Districts, 71 Ark. 17, 27. Similar statutes have been construed and upheld. Roclcwell v. Junction City, 92 Kan. 513, 141 Pac. 299; Loomis v. City of Little Falls, 176 N. Y. 31, 68 N. E. 105; Jackson v. City of Denver, 92 Pac. 690; Blackwell v. Village Coeur D’Alene, 90 Pac. 353; McKone v. City of Fargo, 138 N. W. (N. D.) 967; Schultz v. Ritterbush, 134 Pac. (Okla.) 961; Gastra v. Kenosha County, 130 N. ~W. (Wis.) 870. The suit is barred, and the judgment should be affirmed.
   McCulloch, C. J.

Street Improvement District No. 296 of Little Rock was- created under general statutes (Crawford & Moses’ Digest, § 5647 et seq.) for the purpose of improving a certain street in the city. The district was legally created, and a majority of the property owners petitioned for the construction of the improvement, as provided in the statute, and, upon presentation of the petition to the city council, assessors were appointed to appraise the benefits. The list of assessments made by the board of assessors was filed with the city clerk, and notice thereof was given; protests were filed by certain property owners, and a time was set for hearing the protests, but, before the time arrived, the city council passed a resolution, upon the request of the commissioners of the district, allowing the assessment list to be withdrawn, which was done. A new assessment list was prepared and filed by the board of assessors, and, after notice thereof, was placed before the council.

There was an ordinance duly passed by the city council levying the assessments in installments on the real property in the district, and the ordinance was duly published as provided by statute. Crawford & Moses’ Digest, § 5668. More than thirty days thereafter appellant, who owns real property in the district, commenced this action to restrain the board of commissioners from enforcing payment of said assessments, on the ground that the levy was void for the reason that there was no authority for withdrawal of the first assessment list and the substitution of another list of assessments made by the board of commissioners. The court sustained a demurrer to the complaint and dismissed the complaint, and an appeal has been prosecuted tp this court.

Counsel for appellant rely upon the decision of this court in Kirst v. Street Improvement Dist., 86 Ark. 1, for support of the contention that there is no authority to withdraw a list of assessments in a district of this kind, or to make a new assessment after such withdrawal.

In the case cited we held that the maximum of authority to he exercised by the city council is to hear and determine appeals of individual property owners from the appraisement of their respective properties by the board of assessors, and that there was no authority on the part of the city council to undertake a general revision of the assessment list, or to require a newassessment to be made. The court did not hold, however, that 'there was no authority for a second assessment to be made after' the- first one had been, for any reason, discarded or found tp.be improper. On the contrary, the court held that, after a second assessment had been found to have been improperly made, it was still within the power of the board of commissioners to cause another assessment to be made. The statute places no limit upon the time within which the assessments shall be made, and, if any attempt to complete the list of assessments proves abortive, it is still within the power of the board of commissioners to require the board of assessors to assess the property and file a list thereof. This is entirely consistent with the view that a city council has no authority to revise the assessment list generally or to refer it back for a new assessment; for, as before stated, if, for any reason, the first assessment is found to be improper or erroneous before it becomes final, it, may be disregarded, and a new assessment made.

The statute provides a remedy in the chancery court for the correction of assessments after the • same have been''approved by the city'council, and, if the chancery court decides that the assessment is illegal, it "may restrain its enforcement. The board of commissioner's- may have- a new assessment made, and it would follow that, 'even-without such a decision against the validity of the assessment, the board of commissioners would have the "same power if the assessment was found to be improper or illegal.

The statute provides that actions “for the purpose of correcting or invalidating such assessment shall be forever barred and precluded” unless brought within thirty days after the publication of the ordinance. Crawford & Moses’ Digest, § 5608.

If the first assessment was withdrawn for insufficient reasons and a new list substituted therefor, it was a mere irregularity, which cannot be corrected except in •an action instituted within thirty days after the publication of the ordinance, for an action to test the validity of the assessment must be filed within thirty days. Such is tiie effect of our decision in Ingram v. Thames, 150 Ark. 443, where we held that an attack on the validity of the assessment on account of failure to file the plans and estimate within apt time must be made within thirty days after the publication of the ordinance levying t'he assessment.

This is the only point involved in the appeal, and, since we have found that the attack on the assessment list was not brought in apt time, it follows that the chancery court was correct in sustaining the demurrer to the complaint, and the decree is therefore affirmed.


text:
    Mechanics’ Insurance Company v. Claunch.
    Opinion delivered April 9, 1923.
    1. Insurance — proof of loss — evidence.—In an action ,on- a fire insurance policy,' evidence held to sustain a finding that' proof of _ .loss was presented to the insurer within 60 days' as required by the policy.
    2/ Insurance — proof of loss — sufficiency.—In an action on i fire insurance policy, where it was claimed' that the proof of loss was insufficient, held that, although only one copy oí the proof was delivered for defendant and two other companies who had issued policies, to one who was the joint agent of each of them, the sufficiency of the proof was waived unless objection was made within the time fixed by the policy for furnishing the proof.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    affirmed.

      J.. A. Watkins, for appellant.
    No proof of loss was furnished within the time prescribed, and no recovery against the insurance company can be had. Home Ins. Go. v. Driver, 84 Ark. 171; Ark. Mut. F. Ins. Co. v. Clark, 84 Ark. 224; Commercial Fire Ins. Go. v. Waldron, 88 Ark. 114; American Ins. Co. v. Haynie, 91 Ark. 43; Queen of Ark. Ins. Co. v. Faster, 108 Ark. 261. Delivery of proof of loss to soliciting agent not sufficient. Ermentrout v. Girard Fire & Marine Ins. Co., 30 L. B. A. 346; Lanes v. Insurance Co. of N. America, 121 Mass. 439; Smith v. Niagara Falls Ins. Co., 602 Vermont 682; Bush v. Westchester Fire Ins. Co., 63 N. Y. 531.

      Strait & Strait, for appellees.
    Proof of loss furnished met requirements of policy. Was delivered to general agent. Oak Leaf Mill Co. v. Cooper, 103 Ark. 86; Brown v. Brown, 96 Ark. 456; 1 Clark & Skyles on Agency, sec. 2001; 31 Cyc. 1645; Brett v. Bassett, 63 Iowa 340; Planters’ & Merchants’ Bank v. King, 9 Ala. 279; Roach v. Ricks, 93 Ark. 521; Insurance Go. v. Moline, 111 Ark. 239; German American Ins. Co. v. Humphrey, 62 Ark. 348; Phoenix Ins. Co. v. Public Parks Amusement Go., 63 Ark. 187; Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508; Commercial Fire Ins. Co. v. Belk, 88 Ark. 506; Home Ins. Co. v. Wilson, 118 Ark. 442; Citizens Fire Ins. Co. v. Lord, 100 Ark. 216; Peebles v.. Columbian Woodmen, 111 Ark. 446. If proof of loss defective, its retention by agent of company constituted a waiver. Home Ins. Co. v. Driver, 87 Ark. 174; Planters etc. v. Hamilton, 77- Ark. 27; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 482; American Ins. Co. v. Haynie,
      91 Ark. 43. Company misled insured, and is estopped to deny liability. Queen Ins. Co. v. Fartinis, 94 Ark. 277; Insurance Co. v. Fleming, 65 Ark. '54; Lord v. Des Moines Ins. Co., 99 Ark. 476; Planters etc. v. Loyd, 67 Ark. 584; Armstrong y. A. Ins. Co., 130 N. Y. 560; Phoenix Ins. Co. v. Fleming, 65 Ark. 61; Planters’ Mut. Ins. Co. v.' Hamilton, 77 Ark. 27; Fidelity Phoenix Fire Ins. Co. v. Friedman, 117 Ark. 78.
   McCulloch, C. J.

This is an action on a fire insurance policy to recover the sum of $1,000, the full amount of the policy. There was a total loss of the house covered by the policy, and there were three policies, written by three different companies. The plaintiff recovered judgment below for the full amount of the policy, and the defendant has appealed.

The only question argued in the brief for reversal is that, according to the undisputed evidence,' there was no proof of loss presented to the company within sixty days, as required by the express terms of the policy. The testimony on this subject is as follows:

The house (the residence of plaintiff) was totally destroyed on August 7,1921. The property was situated in the town of Atkins, and the policy was written by the agent of the three companies in question doing business at Morrilton. About a week or a few days after the fire plaintiff went to Morrilton to see Mr. Hembree, the agent, and delivered to the latter what purported to be written proof of loss. The paper bore the caption, “Proof of Loss by Fire,” and was signed by plaintiff and sworn to before an officer. It referred to the three policies, giving the names of the companies, number of each policy and the amount of insurance, and furnished an estimate of the cost of replacing the building. It stated, in substance, that the building was a total loss, and that no act of the assured, “either directly or indirectly, has contributed to the cause of this loss.”

Plaintiff testified that the agent made no objection to the proof, but that, on the contrary, he accepted it as sufficient; that he had several later conferences with the agent, and, in order to do so, had to make trips from Atkins to Morrilton, at a cost of about four dollars per trip.

There was other proof introduced which warranted the finding that, within the time required by the policy for furnishing the proof of loss, the adjuster for this company met the plaintiff in Morrilton, at the office of Hembree, the agent, and that the proof of loss was there delivered to the adjuster. Mr. Smallwood, the adjuster, testified that these conferences did not take place and that he did not receive the proof of loss until October 19, which was after the expiration of the time limit fixed in the policy, hut Hembree testified that these conferences occurred not more than two weeks after plaintiff delivered the proof of loss to him (Hembree), and plaintiff’s own testimony is to the effect that he delivered the uroof of loss to Hembree a few days after the fire occurred, not later than a week.

It the jury accepted plaintiff’s statement that he delivered the proof a few days after the loss, and also accented Hembree’s statement that the adjuster was there and received the proof within two weeks thereafter, they had the right to disregard the testimony of the adjuster if they believed the other testimony was true.

We have a case, then, where the proof was actually delivered, not only to the local agent, but also to the adjuster, who had express authority to adjust the loss, and, if necessary, implied authority to waive the proof of loss. Moreover, Hembree himself had express authority to write policies and collect premiums — in other words, he is what is termed a recording agent — and we have held that such an agent has apparent authority to waive proof of loss. Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212; Home Insurance Co. v. Wilson, 118 Ark. 442.

But it is further contended that the proof was not sufficient because only one copv was delivered for the three companies who issued the policies. This coiitention is answered by saying that the agent, Hembree, was tlie joint agent of each of the companies, and the proof purported to relate to all three of the policies, therefore the sufficiency of the proof was waived unless objection was made within the time fixed by the policy for furnishing the proof. We are of the opinion therefore that there was sufficient proof to establish a finding of a waiver of the proof of loss by acceptance of the sworn proof delivered to the company’s agent, which was accepted as being sufficient.

Judgment affirmed.


text:
    Willison v. Loretz.
    Opinion delivered April 9, 1923.
    1. Brokers — good faith in selling through another broker.— Evidence held to warrant submission to jury of issue as to whether the owner of land which he had previously listed with a broker acted in good faith in selling through another broker with whom he listed the land without giving notice thereof to the former.
    2. Brokers — exclusive right to sell. — A promise by the owner of land listed for sale with a broker to notify the latter if he lists it with another broker constituted an exclusive right to sell, so far as concerned other dealers, until notice was given of listing with another broker.
    3. Brokers — right to commission. — Where a broker produces a purchaser of land, ready, willing and able to buy before he ascertains that it was -also listed with another agent through whom the owner has sold to a purchaser produced by the second agent, without notifying him of other listing, he is entitled to his commission.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    -affirmed.

      Brundidge <& Neelly, for appellant.
    The court erred in giving the oral instruction, which in effect allowed the jury to divide what had once been agreed on as a broker’s commission between the rival agents. Was in effect an instruction in the weight of the testimony. Also erred in modifying instruction No. 1, held correct on former appeal. Murray v. Miller, 112 Ark. 227; Scott v. Cleveland, 122 Ark. 259; McCombs v. Moss, 121 Ark. 536.

      F. E. Brown and J. H. Carmichael, for appellee.
    The only questions involved are the good faith o* appellant in dealing with the buyer of the property and whether he maintained strict neutrality between the rival 'brokers. There is ample evidence to sustain the finding of the jury that appellant did not act in good faith. McCombs v. Moss, 121 Ark. 533. Instruction No. 2 as modified states the law as the court declared it on former appeal. McComb v. Moss, supra.

   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover commission on a sale of lands. There was a former appeal in the case, and the judgment in favor of appellee was reversed on account of error in the court’s charge to the jury, but it was decided that, under the evidence adduced, there was an issue of .fact sufficient to warrant a submission to the jury. 148 Ark. 436.

In the last trial there was a verdict in favor of appellee -for $270, the same amount awarded in the former trial.

The instructions to the jury in the last trial were in conformity with the decision of this court on the former appeal. Error is assigned again concerning some of the instructions, especially with regard to modification of certain instructions requested by appellant, but we think that the instructions and modifications were correct. The modifications were very slight and unimportant, but were made to bring the instructions in entire harmony with the announcements of law made by this court in the former opinion. The further contention here is that the evidence was not sufficient to sustain the verdict.

The facts are recited at length in the former opinion, and it is unnecessary to state them again at such length. The testimony is the same as on the former trial, with one difference, which will be referred to. Briefly stated, the facts are these:

Appellant lived on his farm, about three miles from Des Are, and listed the farm for sale with appellee under an agreement that he would pay appellee all the purchase price in excess of $6,000, and that he would state the price at $6,600 to any prospective purchaser brought bv appellee, so that the latter could earn a commission of $600 on any sale made. Appellee testified that he was not given the exclusive right to sell, but that appellant promised to notify him if he listed the land with any other agent.

Appellee got into correspondence with a Mr. Mason of Madisonville, Tennessee, and, as a result of the correspondence, Mason came to Des Arc and purchased the land from appellant at the price of $6,600, but the sale was made by another agent, or broker, not by appellee. Appellant had listed the land about a week before that with another real estate dealer, but, according to the evidence, did not inform appellee that he had done so.

The second letter from Mason to appellee informed the latter that he would come out to Arkansas in a few days to look at this land. Mason was not personally acquainted with appellee, but was acquainted with another real estate dealer in Des Arc, and when he arrived in Des Arc he fell into the company of the dealer with whom he was acquainted, and who took him out to appellant’s farm, and made the sale. This was the agent with whom appellant had listed the land after the sale was agreed upon through the other agent, but before it was consummated appellee started out to appellant’s farm to inform the latter about the proposed visit of Mason, and he met appellant on the road and ascertained, for the first time, that Mason was there and had agreed to buy the place, and that he had been brought out by the other agent.

Appellant’s contract with the other agent was to sell the place for $6,600 on a commission of five per cent. which, amounted to $330, and netted to appellant a price of $6,270, or $270 more than he was to receive for the place if the sale had been made by appellee. This is the amount appellee recovered in the judgment below.

In the former opinion we declared the law of the case to be, quoting from former decisions of this court, that “where two agents have the right to negotiate the sale of land for the owner, the agent who actually brings about the sale is entitled to the commission, where the owner acted in.good faith and preserved strict neutrality between the rival agents.” The instructions of the court in the last trial conformed, as before stated, to the declaration of law made by this court in the former decision.

In stating the reasons why there was evidence to go to the jury tending to show bad faith or lack of neutrality on the part of appellant, we said that appellant did not inform appellee, when shown the last letter from Mason, that he (appellant) had already negotiated a' sale to Mason. This is not true, under the facts as proved in the last trial, for it is undisputed that when appellee met appellant out on the road and showed him the letter from Mason, appellant told appellee that Mason was the man with whom he had negotiated the sale, and that he was on his way then to town to consummate it. That fact, then, passes out of the case, but there is still suf ficient evidence, we think, to warrant a submission io the jury of the issue whether, or not appellant acted in good faith with appellee.

There is evidence to the effect that appellant promised appellee that he would notify appellee if he listed the land with any other dealer, and that he broke this promise by failing to notify appellee until after the latter, through his own effort, brought Ma-son to Arkansas for the purpose of looking at appellant’s land, and Mason had fallen into the hands of another dealer, who brought about the sale by introducing him to appellant. The jury might have found, and doubtless did find, that this constituted bad faitli, for appellee was entitled to the in-. formation which bad been promised to Mm about listing the land with other dealers. He might, or might not, have continued his efforts to sell the land if he had known that a rival dealer had the land for sale, but he was, at least, entitled to that information. In addition to that, the promise to notify appellee of the listing with another agent constituted ail exclusive right to make the sale, so far as concerned other dealers, until notice was given of listing with another dealer. This feature of the case took it out of the operation of the rule announced in the former opinion, that, where two agents have authority to sell, the one who actually brings about the sale is entitled to the commission, and the owner is not liable to the other agent, if he acts in good faith.

Under the evidence in this case, appellee, in effect, produced a purchaser ready, willing and able to buy the place before he ascertained that the land was listed with another agent, and he is entitled to the commission on that ground. The conduct in withholding the information constituted, or may have constituted, bad faith, and warranted a submission of that issue to the jury.

Our conclusion therefore is that there was evidence sufficient to support the verdict in either view, and the judgment is therefore affirmed.


text:
    Indiana Lumbermen's Mutual Insurance Company v. Meyers Stave & Manufacturing Company.
    Opinion delivered April 9, 1923.
    1. Insurance — warranty as to maintenance op clear space.— Under a fire insurance policy covering “staves, lumber and all other timber products” and warranting “that a clear space of 200 feet shall be maintained between the property insured and any wood-working or manufacturing establishment, and that said space shall not be used for the handling or piling of lumber thereon for temporary purposes,” except while in transportation or being loaded or unloaded, the warranty excluded liability for staves which were burned in a drykiln only 20 feet distant from the mill and engine room.
    2. Insurance — penalty and attorney’s pee. — Crawford & Moses’ Dig., § 6068 et seq., exempting fraternal benefit societies from all provisions of the insurance laws of this State, relates only to fraternal societies paying death benefits, and not to fire insurance societies, which are subject to the penalty statute (Id. § 6155).
    3. Insurance — excessive allowance of attorney’s pee. — In a suit on a policy of fire insurance amounting to $3,000, allowance of an attorney’s fee was $1,000 was excessive; the allowance should not ibe made upon a contingent fee basis, nor upon the basis of the payment of more than one attorney or one firm of attorneys.
    4. Insurance — waiver op warranty. — Parol evidence is admissible to show an express waiver of an express warranty in a policy of insurance.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    reversed.

      Oliver & Oliver, for appellant.
    Appellees liad no right to recover on the insurance policies, which did not cover staves while in the drykiln, there being no 200-foot clear space maintained between the insured property and any woodworking establishment .as required by terms of contracts. Cooley’s BAAs on Insurance, 1617-J; Mich. Shingle Go. v. Insurance Go., 51 N. "W. 1111; Lumber Underwriters of N. Y. v. Rife, 237 U. S. 605, 59 L. ed. 1140. The court erred in instructing a verdict for appellees. In no event are appellees entitled to recover penalty .and attorney’s fees from mutual companies without capital stock. 'Sec. 6016, C. & M. Digest; United Assurance Assn. v. Frederick, 130 Ark. 12.

      W. E. Spence, Gautney & Dudley, for appellees.
    The court correctly construed the contract, and the 200-foot clear space clause does not prevent recovery of staves destroyed in drykiln. Doubts a.re resolved in favor of the insured. Phoenix Ins. Go. v. Fleming, 65 Ark. 54. No agreement in contract that staves and timber products are not insured while not being moved from place to place in yards to effect manufacture. 19 Cyc. 740. 5 Elliott on Contracts, § 4702; Lathers -v. Mutual Fire Insurance Go., 22 L. K. A. (N. S.) 848, 15 Am. & E. Cas. 659. Policy effective notwithstanding temporary removal of property insured. Niagara Fire Ins. Co. v. Elliott, 17. A. S. B. (Va.) 115; Peterson v. Miss. Valley Ins. Go., 95 A. D. 748; Longueville v. Western Assurance Go., 33 A. B. 146; McClure v. Girard Fire Ins. Go., 22 A. E. 249; Naylor v. Northivestern Nat’l. Ins. Go., 54 A. E. 631; Hall v. Concordia Fire Ins. Go., 90 Mich. 403, 51 N. W. 524; McKeesport Mach. Gompaovy v. Benjamin Franklin Ins. Go., 171 Pa. St. 53, 34 Atl. 16. Staves were covered by policy while being loaded and unloaded on tramways, notwithstanding clear space clause. Georgia Home Ins. Go. v. Mayfield Planing Mills, 119 S. W. (Ky.) 1190. Covered while in dry shed and of sheds on premises. Insurance Go. v. Fleming, 65 Ark. 59. Appellants, foreign mutual fire insurance companies, are liable for penalty and attorney’s fees for default in payment, ^ 6155 Crawford & Moses’ Digest. Sec. 6016 does not relate to fire insurance companies. Fed. Union Surety Go. v. Flemister, 95 Ark. 389; Ark. Mutual Fire Ins. Go. v. Woolverton, 82 Ark. 472; Industrial Mutual Ins. Co. v. Armstrong, 93 Ark. 84; Pacific Mutual Life Ins. Go. v. Garter, 92 Ark. 378. United Assurance Association v. Frederick, 130 Ark. 12, cited by appellants, has no application hete. Attorney’s fee -allowed not excessive.
   McCulloch, C. J.

This is an action on an insurance policy issued by appellant on staves, lumber and other timber products situated at appellee’s plant in the town of Pigg'ott. The policy was in the sum of $3,000, and the proof shows that there was a total destruction of staves of the imlue of more than $5,000, situated in a dry-kiln at appellee’s plant. There was a recovery below for the amount of the policy, also for the statutory penalty and attorney’s fees. Appellant defended on the ground tha' the prnDerty destroyed while in the drykiln was not within the terms of the policy describing the property to be insured.

The clause describing the property, or what is termed the “covering clause” of the policy, reads as follows:

“On their stock of staves, lumber and all other timber products, including piling strips, foundation and covering boards, their own or others, whether held in trust or on commission, or sold but not removed, or for which they may be legally liable, all while contained in sheds and yards on premises of the assured and or leased ground situate on section 11, township 20, range 8, in the town of Piggott, Arkansas.”

There was a succeeding clause in the policy reading as follows:

“Warranted by the assured that a continuous clear space of 200 feet shall hereafter be maintained between the property hereby insured and any wood-working or manufacturing establishment, forest or brush land, and that said space shall not be used for the handling or piling of lumber thereon for temporary purposes, tramways upon which lumber is not piled alone being excepted; but this shall not be construed to prohibit loading or unloading within or transportation of lumber and timber products across such clear space, it being expressly understood and agreed by the assured that any violation of this warranty shall render this policy null and void.”

It is undisputed that the drykiln in which the burned staves were located was only twenty feet distant from the mill and engine room. In other words, there was not maintained a clear space of 200 feet between the dry-kiln and the manufacturing establishment as defined in the policy.

The method followed in manufacturing rough timber into the finished product as staves is described as follows: The timber is first cut into bolts and then hauled to the factory, and, after being equalized in the factory and cut into staves, they are hauled out and stacked on the yards for the purpose of drying, and, after remaining there for from sixty days to a year, they are transported to the dryldln and put there for further drying purposes before being finished. The drying process is conducted by the use of steam carried through the kiln by means of pipes running from the boiler in the engine room. When the staves are hauled to the dryldln, they are unloaded on to two-wheel trucks and rolled into the kiln at one door, and when sufficiently dry they are rolled out the other door on the trucks, and thence carried to the factory to be finished.

The parties differ radically as to the proper interpretation of the contract. Counsel for appellee contend that all the material and finished product anywhere in the sheds or on the yard were covered by the policy. This contention entirely ignores, we think, the warranty clause of the policy, which must be read in connection with the covering clause to reach the proper interpretation. The warranty concerning the maintenance of a clear space between the property insured and the "woodworking or manufacturing establishment” clear1 y ex eludes, from the covering clause all property thus situated, except such as is being merely transported or loaded or unloaded in the manner indicated by the language of the exception.

The parties differ as to whether or not the exception concerning the property in transportation or being loaded or unloaded excludes it from the covering clause so as not to come within the protection of the policy. But the burned property was not in transportation, nor was it being loaded or unloaded. .It is clear, undei the language of the policy, that property in process of being manufactured in the "wood-working or manufacturing establishment,” or situated within 200 feet of the establishment, or so situated as not to leave a clear space of at least 200 feet between it and the establishment, except while in transportation or being loaded or unloaded in. the manner indicated, was hot covered by the policy. The intention was to permit material or finished product to be transported by tramway along’ the clear space provided for, and to be transported across the space, by tramway or otherwise, and loaded or unloaded, without excluding it from the covering clause and without affecting the protection given under that clause for other property not situated within 200 feet of the mill. But, as before stated, this property does not fall within that exception, and, on the contrary, it is clearly within the terms of the warranty, and is therefore excluded from the covering clause. Any other view of it would entirely ignore the warranty clause as one of the essential provisions of the policy and would do violence to the manifest intention of the parties in thus framing the contract.

The verdict rendered by the jury was peremptorily directed by the court, and this direction was, we think, erroneous and contrary to what we find to be the proper interpretation of the contract. The error in giving this instruction therefore calls for a reversal of the judgment.

There is evidence in the case tending to show knowledge on the part of the company as to the situation of the property which was insured, but, as this, feature of the case was not fully developed and the evidence may be different on another trial, we will not now undertake to determine the legal sufficiency of the evidence to make out a case of waiver by estoppel. The cause will be remanded for a new trial, without an expression at this time concerning the sufficiency of the evidence on that issue.

It is further contended that the court erred in rendering judgment for statutory penalty and attorney’s fees, and, in view of another trial of the case, we deem it proper to declare the law upon that question.

It is contended by counsel for appellant that the nenalty statute (Crawford & Moses’ Digest, § 6155) does not apply to this kind of insurance. The undisputed evidence shows that appellant is not a stock company in the sense of any investment stock, but it is a foreign insurance company doing business on the mutual plan, and has complied with the laws of Arkansas with reference to such companies doing business here. Counsel rely on the case of Knights of the Maccabees v. Anderson, 104 Ark. 147, exempting a fraternal company from the operation of the penalty statute.

It will be observed that the penalty statute applies in the broadest terms to suits to recover for losses by “fire, life, health, or accident insurance,” but in the Anderson case, supra, we held that fraternal benefit societies were exempt from that provision, for the reason that the statute (Kirby’s Digest, § 4352, as amended by act of March 28, 1917, Crawford & Moses’ Digest, § 6068 et seq.) authorizing them to do business, exempted them from the general operation of the insurance law, but the statute containing those exemptions related only to fraternal societies paying death benefits, and did not relate to fire insurance. It follows therefore that appellant company is liable for penalty under the same terms as other fire insurance companies are- liable therefor.

The court allowed attorneys’ fee of $1,000, and, in view of another trial of the case, we deem it proper to add that this allowance was excessive, for, in fixing attorney’s fees under this statute, the allowance should not be made upon a contingent fee basis, nor upon the basis of the payment of more than one attorney or one firm of attorneys in the case. Mutual Life Ins. Co. v. Owen, 111 Ark. 554.

In remanding the cause for a new trial on the issue as to estoppel we are aware of the fact that we are not in harmony with the decision of the Supreme Court of the United States cited by counsel for appellant (Lumber Underwriters of New York v. Rife, 237 U. S. 605), where it was held that parol evidence is not admissible to establish a waiver of an express provision of a policy. 'This court has heretofore declined to accept the doctrine •established by the decision of the Supreme Court of the United States on this subject, and we adhere to our position on that subject. People’s Fire Insurance Assn. v. Goyne, 79 Ark. 315.

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


author: Wood, J.

text:
    Lemaster v. Lemaster.
    Opinion delivered April 9, 1923.
    Divorce — husband chiefly at fault. — Where it appears that conditions between a hus' and and his wife have become unendurable, without any hope of amelioration, and a preponderance of the evidence shows that the husband by his conduct is chiefly responsible, the wife is entitled to a divorce from the bonds of matrimony.
    Appeal from Pulaski Chancery Court; John F. Martineau, Chancellor;
    reversed.

      George M. Heard and J\ohn D. Shackleford, for •appellant.
    Appellant was entitled to a decree on the ground of ¡such indignities to her person as rendered her condition intolerable. See. 3500, Crawford & Moses’ Digest'. Haley v. Haley, 44 Ark. 429; Meffert v. Meffert, 118 Ark. 582; Shirley v. Shirley, 87 Ark. 175. Case should •be reversed .and remanded with directions to enter a decree of divorce for appellant.
    No brief for appellee.
   Wood, J.

This is an action by the appellant against •the appellee for a divorce.- The appellant, in her complaint, alleges various acts of neglect and maltreatment -of her by appellee, which, taken together, are sufficient to state a cause of action for divorce on the ground of .RiT-idi indignities to her person as to render her condition intolerable. Tbe allegations of the complaint are specifically denied in the answer. ■

The Lemasters were married on the 23rd of February, 1898, and they lived together as husband and wife until the 30th of November, 1916, and, at the time of the hearing, had been married about twenty-four years. At that time they had seven living children, five girls and two boys, ranging in ages from twenty-two to nine. The oldest daughter is grown and married, and the other four daughters are still at home. The girls living at home are respectively sixteen, fourteen, twelve and nine. The boys, at the time of the hearing, were respectively twenty-one and nineteen years of age. The father and mother both testified in the cause, and likewise the two boys and the three older girls. It could serve no useful purpose as a precedent to set out in detail the testimony of the members of the family tending to show their present unhappy state. Indeed, it is best for all concerned not to spread at length upon the record the testimony of the father and mother concerning their domestic relations from the time of their marriage down to the rendition of the decree, and the testimony of the children concerning the conduct of their parents towards each other as far back as any of them could remember. Suffice it to' say that the testimony of the mother and the three daughters is amply sufficient to sustain the allegations of the complaint.

On the other hand, the testimony of the appellee and the two boys tended to prove that the conduct of the appellee toward the appellant was not such as to render her condition in life intolerable, and therefore not such as to-warrant a decree of absolute divorce. Witnesses testified on behalf of the appellant, and also on behalf of theappellee, who were not related in any manner to the parties litigant. But none of these were in a situation to-know, as were the parties themselves and their children,, the facts concerning the intimate relation between the appellant and the appellee and their conduct towards each-•other which brought about the unfortunate and irreconcilable differences that resulted in rendering the condition •of the appellant wholly intolerable. Certain it is, according to the testimony of the appellant, the appellee, and their children, that there is an incompatibility of temper between appellant and appellee which renders their domestic life miserable in the extreme and without any hope •of amelioration so long as they are permitted to remain under the same roof-tree as husband and wife. The home, as both parties depict it, is a veritable “hell on •earth.” Appellee concedes this, but, according to his testimony, the appellant is the sole author of the deplorable conditions that now exist in the home.

In their intense zeal to lay the blame for all their miseries each at the door of the other, the parties have brought into this record criminations and recriminations, ad nauseam, of conjugal faults and failures. Unfortunately, their children have been drawn into this maelstrom of domestic infelicities. The boys (especially the older one) are arrayed for the father and the girls for the mother, and, while they differ as to whether the father or the mother is the primary cause of all the woes that have overwhelmed the household, there is this outstanding and cog'ent fact about which all agree, except the older boy and the father, namely, that when the father enters the home the storm breaks upon it, pandemonium reigns and continues so long as he abides therein, and when he goes out peace and happiness come in.

After a careful consideration of the record we are ^convinced that a preponderance of the evidence shows that the conduct of the appellee toward the appellant is chiefly responsible for the unendurable anguish and wretchedness of the married life of appellant. She is therefore entitled, under our statute and decisions, to a decree of divorce a vinculo matrimonii. Crawford & Moses’ Digest, 3500, subdiv. 5; Rose v. Rose, 9 Ark. 507; Haley v. Haley, 44 Ark. 429; Meffert v. Meffert, 118 Ark. 582, and other eases cited in C. & M. Digest, p. 994 (c). The trial court erred in not so holding, and its decree is reversed, and the cause is remanded, with directions to enter a decree in accordance with the prayer of app ellant ’ s complaint.