text:
    Carr v. State.
    Opinion delivered February 21, 1921.
    1. Homicide — general reputation op deceased. — Where a plea of self-defense was interposed in a murder case, and it became a material issue whether defendant or deceased was the aggressor, the general reputation of each for peace and quiet was admissible as tending to show which was the probable aggressor.
    2. Witnesses — cross-examination op character witness. — A character witness who testified to deceased’s good reputation could, on cross-examination, be interrogated concerning specific acts of violence on the> part of the deceased within the personal knowledge of the witness, to test the soundness of the statement of the witness tending to establish the deceased’s good character, where such acts of violence were of such a notorious and public nature within themselves as would tend to establish general reputation.
    Appeal from Mississippi Circuit Court, Osceola District; B. E. L. Johnson, Judge;
    reversed.

      George L. Teat and J. T. Coston, for appellant.
    1. The court erred in holding that defendant had no right tó ask the character witnesses for the State on cross-examination as to specific acts of violence on the p,art of deceased.
    2. The argument of Hon. H. H. Rogers, counsel for the State, was prejudicial and improper. •
    3. The trial judge in overruling objections to leading questions intimated to the jury his opinion that defendant should be convicted. 140 S. W. 282; 44 Ark. 120; 144 S. W. 196; 159 Id. 195-6; 67 Id. 756-7; 85 Id. 237; 11 Tex. App. 378. See, also, 134 S. W. 927; 152 Id. 992; 67 Ark. 117-18. It was error to deny the right to cross-examine the witnesses. 67 Ark. 117; 19 So. Eep. 139; 7 Id. 193; 45 Pac. 862; 32 N. E. Eep. 306; 35 So. Eep. 667.
    The remarks of the court were improper and prejudicial, and only a reversal will cure the error. 58 Ark. 368; 207 S. W. 435-6.

      J. 8. Utley, Attorney General, and Elbert Godwin, Assistant, for appellee.
    1. The remarks of H. H. Eogers for the State were not improper nor prejudicial, and on objection the jury were properly told to disregard them, which cured any seeming error.
    The testimony set out in the affidavit can not be considered, because not set out in the bill of exceptions. 2 E. ;C. L. 143. The fact that the court sustained the objections to any improper remarks of counsel and instructed the jury to disregard them cured any error. 74 Ark. 256; 100 Id. 437; 86 Id. 600. See, also, 74 Ark. 256.
    2. There was no error in the ruling of the court as to the admission of evidence as to character, etc. 29 Ark. 131; 3 Cyc. of Ev. 49; 10 E. C. L. 953; 3 Enc. of Ev. 49-50.
    Exceptions to testimony or the ruling of the court should be specific, not general. General objections will not be sustained on appeal. 2 E. C. L. 94-5.
    3. The remarks of the court in overruling the objections to testimony were not improper nor prejudicial. 58 Ark. 368 and 207 S. W. 436, are not in point.
    4. The proof here shows murder in the first degree and hence the jury must have given defendant the benefit of every doubt, and there is no error in the court’s rulings.
   Humphreys, J.

Appellant was indicted in the Osceola District of the Mississippi Circuit Court for murder in the first degree, for killing George McCulloch, on the 13th day of August, 1920, with a club, to which he interposed the plea of self-defense. Upon the trial, he was convicted of murder in the second degree, and sentenced to imprisonment for twenty-one years. From the judgment of conviction, an appeal has been duly prosecuted to this court.

At the time of the tragedy, appellant and the deceased resided at Pride’s Spur upon the same farm. They had moved from Mississippi to that place in December, 1919. They had a quarrel the day before the killing.

The evidence adduced by the State was, in substance, to the effect that appellant claimed deceased had called him a vile name, for which he intended to kill him, explaining that he intended to walk up behind him, knock him down, take his gun away from him and kill him; that, on the following day, when the freight train came in, one hundred pounds of ice was put off the ice car for the deceased, and three hundred pounds for appellant; that appellant appeared on the scene- first, and, while talking to the boy in charge of the ice car, the deceased appeared, whereupon appellant went away; that he soon returned, and, while the deceased was stooping over for his ice, appellant struck him on the back -of the head with a pick handle, and, as the deceased started to fall, he pushed him over on the ground; that, while the deceased was attempting to get up, appellant struck him on the forehead and again knocked him down and struck him a third lick after he fell; that he then got on him, searched his pockets but found nothing; that a third party was prevented from interfering by appellant’s son, who drew a pistol upon him; that, about this time, the wife of the deceased, who witnessed the tragedy, ran up and caught the club, and, when her husband got up, assisted him to their home where he became unconscious and died between three and four o’clock the next morning from the effect of the blow inflicted upon him by appellant.

The evidence adduced by appellant was, in substance, to the effect that, the day before the fatal encounter, a dispute, initiated by deceased, resulted in an attempt by the deceased to attack appellant with an ax, which attack was prevented by J. M. Black and the wife of deceased, whereupon the deceased went into his house threatening appellant as he went, and, against the entreaties of his wife, returned in a moment and, from the porch, pointed his finger toward appellant and said: “I will get you yet;” that, on the next day, while appellant was standing near the train, the deceased came up, ran his hand in his pocket and remarked that he had told appellant he was going to kill him; that appellant grabbed a pick handle, struck deceased twice in the forehead, and, when he fell, appellant, after laying the stick down, got on the deceased, searched his pockets and found a pair of steel knucks, which he gave to a by-stander, and then voluntarily retired from the conflict; that deceased arose and walked home, a distance of one hundred yards, with his wife; that he died fourteen hours thereafter from a fracture of the skull in the rear, caused by a blow on the forehead.

In the course of trial, exceptions were saved by appellant to certain arguments made by Honorable H. H. Rogers, who was assisting in the prosecution of the case, and to a statement of the court in overruling an objection interposed by appellant’s counsel to a question of the prosecuting attorney, also to the ruling of the court to the effect that appellant had no right to ask the character witness for the State, on cross-examination, as to specific acts of violence on the part of the deceased. Appellant attacked the reputation of the deceased for peace and quietude. The State then introduced a witness to show that the reputation of the deceased was good. Appellant attempted, on cross-examination of the witness, to elicit his knowledge of acts of violence on the part of the deceased indicating otherwise. The court denied appellant this right. In order to make up the record upon' this point, the jury was instructed to retire, and appellant offered to ask and prove by the witness:

“1. That George McCulloch, in the last three years that he lived in Mississippi, had at least twelve fights, and paid a fine for each one of them.
“2. That he had many quarrels and was boisterous toward certain people and overbearing in his manner toward them.
‘ ‘ 3. That he had many other difficulties.
“4. That he had a fight with Rose Gladen, Henry Gladen, who was constable of the district in Choctaw County, Mississippi, and that Gladen went there to collect taxes from a negro on his place, and that he resented it and beat him up, and they were separated by the mayor of the town and he paid a fine for it.
“5. That he had a personal difficulty with George Edermon, who was in the timber business, about a settlement in regard to some crossties.
“6. That he had a quarrel with Smiley Smith, and ran him off the premises.
“7. That he had a fight with Charlie Thompson and beat him up and paid a fine for that.
“8. That he had a difficulty with the town marshal, who attempted to arrest him,' and it arose over a fight with another man; Early Hunt was the marshal.
9. Also to show that he killed a negro and put the negro in the stable where the mule was, and circulated the report that the negro had been kicked to death by the mule.”

The plea of self-defense was interposed, so the question as to whether the appellant or deceased was the aggressor became a material issue. The general reputation of each for peace and quiet, therefore, was admissible as tending to show which was the probable aggressor. The question presented by this record is whether a character witness, who testified to the good reputation of the deceased, could, on cross-examination, be interrogated concerning specific acts of violence on the part of the deceased within the personal knowledge of the witness, to test the soundness of the statement of the witness tending to establish the good character of the deceased. This court Announced the doctrine, in the case of St. L., I. M. & S. Ry. Co. v. Stroud, 67 Ark. 112, that “there could he no doubt that when a witness is put on the stand.to attack or defend character, he can only be asked, on the examination in chief, as to the general character of the person whose character is in question, and he will not be permitted to testify to particular facts, either favorable or unfavorable to such a person; but when the witness is subject to cross-examination, he may then be asked, with- a view to test the value of his testimony, as to particular facts.” The learned Attorney General contends that this doctrine has relation only to the report of specific acts of violence on the part of the one whose character is in question, inconsistent with the statements of a character witness, and has no relation to particular acts of violence within the personal knowledge of the witness, and that, because the proof offered reached to the personal knowledge of the witness only, the offered evidence was properly excluded. We think the form of the question immaterial in the instant case, because the very nature of the specific acts of violence offered to be established by the witness were of such a notorious and public nature within themselves as would tend to establish general reputation. Especially is that true in view of the great number of violent acts offered to be proved, covering so short a period of time. We think the court committed prejudicial error in excluding the evidence offered on the cross-examination of the character witness.

It is unnecessary to discuss the other assignments of error, as they will not likely recur on a new trial of the cause.

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


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Rose v. Million.
    Opinion delivered February 28, 1921.
    1. Mortgages — effect of failure to record. — Although the holder of a first chattel mortgage failed to record it properly, and the second mortgage was properly recorded, the lien of the first mortgage is superior to that of the second where the latter contained a recital that it was subject to the former.
    2. Novation — transaction held not to be. — Where sureties on a note of the original purchaser of mules took a mortgage on the mules from such purchaser, and on his default on the note sold the mules to a second purchaser, who gave a note therefor to the original vendor with the same sureties, who took a mortgage from the second purchaser, the substance of the transactions was not a novation, but a surrender of the mortgaged property by the original purchaser and a resale to the second purchaser.
    3. Mortgage — discharge of lien. — Where a mortgagee of chattels entered no satisfaction of record and did not surrender the mortgage, but took the property with the mortgagor’s consent in lieu of a formal foreclosure, and sold it to another, held that there was no discharge of the mortgage lien, so as to let in a subordinate mortgage lien; the junior, mortgagee having a right to redeem.
    4. Principal and surety — mortgage to one surety inuring to all. — The obligation of sureties on a note being joint as well as several, a mortgage of chattels executed to one of them inured to the benefit of all, so that it is unnecessary to reform such mortgage to include the other sureties.
    5. Equity — looks to substance. — Equity looks to substance, rather than the form, of a transaction in order to determine the rights of the parties.
    Appeal from Randolph Chancery Court; L. F. Reeder, Chancellor;
    affirmed.

      W. L. Pope, for appellant.
    1. There are two reasons why the decree should be reversed. (1) There was a complete satisfaction and discharge of the debt for which the mortgage' sought to be foreclosed was given. (2) No such loss or damage is shown as would entitle plaintiff to a foreclosure.
    There was a complete novation which discharged the Weeks debt. A release or satisfaction prior in time inures to the benefit of the junior incumbrancer. 2 Cyc. 1222-4. Where a prior mortgagee discharges his mortgage debt and takes a new one for the same debt, he loses his priority, and the new mortgage is postponed to the intervening old liens. 55 Yt. 329.
    There was a complete novation and an extinguishment of the old debt. 39 Cyc. 1130; 3 Ark. 216; 4 Id. 506; 14 Id. 267; 24 Id. 356.
    A debt may be paid or extinguished by a third person becoming responsible to the creditor with the concurrence of the debtor. 29 Cyc. 1136. The novation extinguishes the original debt with all rights and liens. 29 Cyc. 1137.
    2. Weeks’ mortgage to Million was never enforceable, as no breach was shown of its conditions entitling Million, Cooper and Bates to foreclose. It is shown that the alleged mortgagees have ever suffered any loss entitling them to foreclosure. The testimony shows that the sureties never paid one penny by reason of their suretyship, and appellees had no cause of action against appellant.

      E. O. Schoonover, for appellees; Jerry Mulloy, of counsel.
    There was no novation of the debt. The later note by Collier and others was merely a renewal of the former note of Weeks. Weeks had surrendered his right to the property to his mortgagees; they were in possession and the owner subject to appellant’s right to redeem; the purchase price was unpaid, and they merely made new papers for the same debt. Collier obtained nothing by his purchase of the rights that appellees had, and conveyed nothing by his mortgage unless appellees had title and he acquired title from them. Appellant had no rights except the rights of a junior mortgagee, only the right to redeem from the prior mortgage to Million and Bates, to which the one he took was by its express terms subject. The theory of the chancellor was correct, and there is no error.
   McCulloch, C. J.

In February, 1918, G. U. Weeks purchased a pair of mules from Cooper Bros, for the sum of $225 and executed his note to them for said sum with appellees Million, Bates and Ed Cooper as sureties. At the time of the execution of said note Weeks executed and delivered to Million a mortgage on said team of mules, containing the following recital:

“Whereas, the said party of the first part (the mortgagor) is indebted to the party of the second part (the mortgagee) in the sum' of $225 in the following way: The said party of the second part has this day signed a note for the above-named sum, due November 15 next, and drawing 10 per cent interest per annum from date until paid, as surety to (for) the said party of the first part. This is to secure the said party of the second part against any loss whatsoever by reason of having signed the same.” The mortgage provided that upon default in the payment of the indebtedness therein described the mortgagee could sell the mortgaged property at public sale, etc.

Weeks was a tenant on the farm of appellant, W. W. Rose, and he executed a mortgage to Rose to secure an indebtedness for future advances, and the mortgage contained the following recital, after the description of the mortgaged property: “George Million and D. Bates hold a first mortgage on mules.” Million filed his mortgage with the recorder of the county, but failed to make the proper indorsement showing that it was “to be filed but not recorded,” and later appellant Rose also filed his mortgage for record.

Weeks failed to pay the note to Cooper Bros., and in November, 1918, proposed to Million and the other sureties on his note to turn over the mules and for them to make such disposition with them as they pleased. The said sureties sold the mules to one Collier, who executed a new note to Cooper Bros., with Million, Bates, Ed Cooper and Ben Brown as sureties. The mules were then turned over to Collier who executed a new mortgage to Million and the other sureties on his note to secure them against loss. Subsequently Rose took possession of the mules for the purpose of foreclosing his mortgage, and appellees Million, Ed Cooper, and Bates instituted this action in the chancery court against Weeks and Rose to foreclose the mortgage on the mules executed by Weeks.

It is alleged in the complaint that it was intended by. the parties, in executing the mortgage, to incorporate the names of all the sureties so as to protect them from loss, and the court was asked to reform the mortgage so as to carry out the intention of the parties. The case was heard by the chancellor on documentary evidence and oral testimony, and the court rendered a decree in favor of appellees in accordance with the prayer of the complaint.

Million failed to properly record his mortgage, but the lien of that mortgage is superior to the subsequent-mortgage executed by Weeks to appellant Rose, for the latter mortgage contained a recital which in effect made it subject to the former mortgage. Clapp v. Halliday Bros., 48 Ark. 258.

The contention of counsel for appellant is that there was a complete novation of the debt — the substitution of one debtor (Collier) for Weeks, the original debtor. We do not think that the facts bring the ease within that doctrine, for there was no agreement between the parties that there should be a substitution of debtors. The substance of the transaction was a surrender of the mortgaged property by Weeks in lieu of a foreclosure to Million and a resale of the property by Million to Colber. Million and his cosureties satisfied the original debt to Cooper Bros., by the execution of a new note, and Collier executed his note and mortgage to Million and the other sureties to protect them. Weeks did not make manual delivery of the mules directly to Million and the other sureties, but he delivered the mules to Collier at their direction. In order to constitute a novation, theré must • have been an agreement between the parties for the assumption by Collier of the debt of Weeks to Million, and there was no evidence that this was done. Brewer v. Winston, 46 Ark. 163; Elkins v. Henry Vogt Machine Co., 125 Ark. 6. On the contrary, Weeks was entirely ignored in the disposition of the property by Million and his cosureties to Collier, who did not assume the debt of Weeks, but entered into an original obligation for his own purchase of the property from Million.

Counsel is also mistaken in the contention that there was a discharge of the mortgage obligation of Weeks to Million and a satisfaction of the lien. The proof shows that there was no satisfaction entered of record and no surrender of the mortgage. Neither is there any evidence of an intention on the part of Million to discharge the mortgage lien which he held. On the contrary, the intention was to take the property with the consent of Weeks, the ¡mortgagor, in lieu of a formal foreclosure, according to the terms of the instrument. There could be no cancellation of the lien under the circumstances where the actual intention was, as manifested by their conduct, .to enforce the lien rather than to cancel it. The effect of the transaction was to foreclose the lien, and it was effectual for that purpose except as against appellant’s right to redeem as a junior lienor.

Lastly, it is contended that the- mortgage of Weeks was only to Million to secure him against any loss, and that the proof does not show that he sustained any loss or damage in the transaction as surety for Weeks. The court reformed the mortgage, and we think the evidence was sufficient to justify it, for it is undisputed that it was the intention of the parties to indemnify all the sureties. But a reformation of the mortgage was unnecessary in order to give protection to all the parties. The obligation of the sureties was joint as well as several, and the security taken by one of the sureties imir<?d to the benefit of all of them. The sureties paid the note, as before 'stated, by executing a new note to Cooper Bros., with an additional surety. This was a payment of the debt as between Million and the mortgagor, and it is the right of the former to foreclose the mortgage for the benefit of himself and his cosureties who joined in the payment. Equity looks to the substance rather than to the form of a transaction in order to determine the rights of the parties, and we are of the opinion that the chancery court reached the correct conclusion.

The decree is therefore affirmed.


author: Wood, J. McCulloch, C. J.

text:
    Protho v. Williams.
    Opinion delivered February 28, 1921.
    1. Eminent domain — remedy op landowner — evidence.-—In an action for damages to land by the routing of a ditch by a landowner, the preponderance of the evidence held to establish that the commissioners of the district misled plaintiff into failing to make timely objection to the orders establishing the route of the district and confirming the assessment of benefits by promising her either to change the route of the ditch or to give her notice that the route would- not be changed.
    2. Eminent domain — failure to make timely objection — estoppel. — Where the commissioners of a drainage district misled a landowner into believing that they would either change the route of a proposed ditch or would notify her that they would not do so, and she in good faith failed to present her complaint to the county court against the assessment of benefits, and the commissioners failed to assess damages in her favor, she is entitled to damages against the district, and will not be barred by her failure to present her complaint to the county court within time.
    3. Eminent domain — assessment of benefits or damages — limitation to complaints. — Provisions in Crawford & Moses’ Digest, §§ 3615, 3617, as to the time in which a landowner may make complaint of assessment of benefits or damages in a drainage district, were not intended to deprive a property owner of the right to complain of such assessments where she was led into not making such complaint by the conduct of the commissioners of the district causing her to believe that the route of the ditch would be changed.
    4. Drains — power op commissioners to alter location. — Under Acts 1913, No. 177, § 2, commissioners of a drainage district have power to alter the location of a ditch at any time before constructing the work, even after a judgment of the county court is rendered confirming assessment of benefits.
    5. Drains — illegal assessments — equitable remedy. — Equity had jurisdiction to set aside and cancel an illegal assessment of benefits and damages resulting from construction of a drainage ditch, and, at a landowner’s instance, to restrain the collection of those assessments, and, having jurisdiction for that purpose, it also had jurisdiction to award the landowner damages.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Chas. Jacobson, for appellant.
    Appellants by their conduct did not lead appellee to believe that they were going to change the route of the ditch. There is no proof of misrepresentation or deception. Appellee had an opportunity for her day in court, which she chose to ignore, and the court erred in sustaining the demurrer and granting the injunction. 224 S. W. 334. The county court had power to change the location of the ditch and the route. 91 Ark. 79; 120 S. W. 402; Drainage act of 1909, § 8. The demurrer should have been sustained, as the chancery court had no jurisdiction. All those matters are for the county court. Appellee should have protested, as she and her counsel had ample notice and had full knowledge of all the facts and records.

      Chas. T. Coleman, W. H. Pemberton and W. G. Rid-dick, for appellee.
    1. Appellee is not estopped by the statute bar of thirty days in which she should have made protest against the assessment of benefits. The doctrine of estoppel is as old as the law itself, and has often been applied. 36 Ark. 96; 99 Id. 260; 91 Id. 141. The doctrine has often been applied to prevent the bar of the statute of limitation. 60 Ark. 491; 80 Ky. 309; 33 Miss. 173; 56 N. H. 143; 65 Mo. App. 55; 71 Id. 299; 7 N. H. 494; 91 N. C. 398. This doctrine may be invoked by waiver. Wood on Limitations, § 49; 61 S. W. 386; 54
      Id. 689. The ease in 74 N. E. Eep. 123, is a very similar case to this and supports our contention.
    2. The cases cited for appellant do not sustain his contention. 91 Ark. 31; lb. 79.
    3. Mrs. Williams was misled by the acts and word of the commissioners and properly acted upon them.
    4. She was misled by what the commissioners said and what they did. Under the law the Legislature may levy benefit assessments directly or through a board of commissioners until the indebtedness of the district is paid. 139 Ark. 4; Sand. & H. Digest-, § 5855.
    5. The commissioners promised to notify Mrs. Williams if a change was not made and they failed.
    6. The findings of the circuit court on questions of fact are conclusive as the- verdict of a jury. 35 Ark. 445. Where the evidence is conflicting, the finding is conclusive. 84 Ark. 406; 90 Id. 100; 122 Id. 43. The chancellor’s finding will not be disturbed on appeal unless against the clear preponderance of the evidence. 129 Ark. 583; 181 S. W. 913; 121 Id. 295. See, also, 91 111. 273.
   Wood, J.

This action was brought by the appellee against the appellants as commissioners of the Faulkner Lake Drainage District. She alleged in substance among other things that the district was cre'ated September 18, 1916; that she owned certain lands in the district (described in her complaint); that the benefits assessed against her property were $5,004.50; that the assessed valuation of her property was $8,600; that before and after the expiration of the thirty day period within which she had the right to make protests in the county court against the action of the commissioners in the assessment of benefits or damages, or to acquiesce therein, she took up with the commissioners the change of the route of the ditch in an endeavor to have them locate the same between her place and the Kline place instead of the place where it is now located; that she represented and showed to the commissioners that the route they had selected would do her property great damage and pointed ont to them a more suitable location; that the commissioners represented to her that they would take up the matter of changing the route of the ditch according to her suggestion and expressly stated to her that they would not locate the ditch where it is now located; but, if they did not change the location, they would so inform her; that she relied wholly upon these assurances of the commissioners that they would notify her if they allowed the ditch to remain where they had located it, and she continued to so rely until the time expired for her to protest. She alleged at length and in detail the various conversations that she had with the commissioners and the attorney for the district, and, among other things, stated that as. late as March or April 1917, the commissioners through their attorney, told the attorney of the plaintiff to tell the plaintiff that she need not worry any more about the location of the ditch; that the commissioners had agreed to locate it in accordance with her suggestion; that her attorney so notified her, and neither he nor she gave the matter any further thought until some months afterward, to-wit, on the 24th day of August, 1917, at which time she learned that machinery was being placed On the ground at the point where the ditch is now located and on the route where the commissioners assured her - the ditch would not run; that at that time her regular attorney was absent, and she employed another attorney, and at her request a meeting of the board of commissioners was called within a few days thereafter, and at that meeting the commissioners again assured the' plaintiff that they had not decided where the ditch would be located, and that they would notify her when they did so. There is also an allegation in the complaint to the effect that the commissioners had the right to change the route of the ditch at any time and to revise the assessments in accordance therewith, and that it was provided in the contract for the construction of the ditch that the location, distances, and number of lateral ditches may be altered by tbe commissioners prior to or after the work had. commenced, showing that the commissioners reserved the right to change the location of the ditch at any time as they had agreed to do with the plaintiff. She also alleged that the commissioners utterly failed and refused to keep their word to her; that, through the representations and assurances of the commissioners and their attorney, she was misled, deceived and lulled to rest; that the commissioners, notwithstanding these assurances and promises, proceeded to have the ditch constructed over the route where they had first located the same; that the commissioners thereby perpetrated a fraud upon her by which her property was taken and damaged. She set forth specifically the items of her damage, which amounted in the aggregate to the sum of $30,000, for which she prayed judgment. The commissioners answered, setting up the legality of the district, alleging that they had proceeded in all things as the law required in such cases, and specifically denied that they had by any word or act of theirs in any manner misled or deceived the plaintiff as to the route of the ditch. They denied that they had ever agreed to change the same as requested by her, or that they had ever Ted her to believe that the change would be made, and specifically denied the allegations of fraud. They alleged that plaintiff and her attorney had full knowledge of the route of the ditch where it was finally located in ample time to make their protests to the county court, and that plaintiff had ignored her remedy in that court until long after the time for making such protests had expired. They specifically denied the allegations of damage and prayed that the complaint be dismissed for want of equity.

The testimony on the issues raised was heard ore terms by the trial court, which rendered a decree in favor of the appellee against the appellants in the sum of $11,040, with interest, and restraining them from the further collection of assessments, from which decree is this appeal.

The first questions presented by this appeal are whether or not the appellants as commissioners by their conduct led the appellee to believe that they were going to change the route of the ditch so as to locate it between her place and the Kline place, instead of between her place and the Spence place where it was finally located, and whether or not they told her that if they did not make such change she would be notified. These are purely questions of fact, and it could serve no useful purpose to set out in detail the testimony concerning them. The testimony shows that the district was established September 16, 1916. The assessment of benefits was filed with the county court October 9, 1916. Notice was duly given of the filing of such assessment, as the statute requires, and November 14, 1916, was set for the hearing on the assessments.

The uncontradicted testimony shows that, prior to the order of confirmation, the appellee had protested against the route of the ditch as laid out by the commissioners and finally adopted by them. The undisputed testimony also shows that she continued to protest against the location after November 14, 1916, up until the work on the ditch was begun, but there is a sharp conflict in the testimony as to whether or not the commissioners gave the appellee to understand that the route as originally fixed' would be changed, and if not changed that she would be notified. The appellee testified positively that she had various conversations with the commissioners and their attorney, and that they told her when she first went to them (which was long before November 14, 1916,) that they would take it up with the engineer and place the ditch somewhere else, if it possibly could be done. They had already determined on the advisability of putting it where it now exists, and after witness pointed out the way it would affect her homestead they said “if they found out there was no other way to go and they had to go that way, the way it now is, they would advise me.” This they said at the. first meeting, which was at Mr. Jacobson’s office (May 10, 1916). Her testimony further shows that they had cleared a right-of-way between the Kline place and witness’ place on the route that witness desired to have the ditch run, and witness was led to believe from this that they intended finally to adopt that route, and witness' didn’t know that the commissioners had finally located the route where it now is until they unloaded the machinery on the ground. In response, to witness’ first objection to the location, they had cut the right of way between Mrs. Kline’s place and witness’ place. In August, 1917, when they began to unload the machinery, witness discovered that appellants had not changed the location. Witness was not sure until then that they intended to finally locate the ditch where it is now located. After the district was organized, witness employed Colonel House to represent her and later, in the summer of 1917, she employed Mr. Pemberton.

The testimony of the commissioners was to the effect that, while they had frequent conversations with the appellee, who was protesting as to the location of the ditch, they never intended by any word or act of theirs to* give her the impressoin that any change would be made. They never told her, and no one was authorized by them to tell her, that they would make a change, and that if they did not make such change they would notify her. The commissioners were anxious to accommodate her, if possible, provided it was consistent with the best interest of the district, but the route had been fixed by the engineer after a thorough investigation and the ditch finally constructed as originally located. There was a meeting at the home of Mr. Galloway, one of the commissioners, on February 26, 1917, at which the entire matter was discussed, and it was again agreed that no change would be made, and on that day the attorney for the district was instructed by the commissioners to write the attorney of the appellee to that effect, which was done. Such was the purport of the testimony by the commissioners and the attorney of the district. The engineer of the district also testified that he never made any statement that would lead the appellee to believe that any change would be made in the route of the ditch other than the report he sent back to the board — if they could agree on the damages between the two places. No one else in his presence made any such statement to her or that would lead her to believe that, at least they did not intend to. It was their intention to deal as fairly with her as they could.

On the other hand, Col. House, one of the attorneys for the appellee, testified that in February or Mareh, 1917, the commissioners represented to appellee that if they concluded to locate the ditch where it is at present they would notify her; that the attorney for the district told witness to tell the appellee that she needn’t worry any longer; that the commissioners had agreed to build the ditch where she wanted it.

Another one of her attorneys, Mr. Pemberton, testified that at a meeting at Mr. Jacobson’s office when all the commissioners were present, and the witness, representing the appellee, was protesting against the location of the ditch where it is at present located, the commissioners said if they could make a change without serious detriment, that is, locate the ditch between the Kline place and appellee’s place, they would be very glad to do so, and that, if it was put anywhere else than between those places, they would notify the appellee. After that witness paid no attention to the matter until he was advised by appellee that they had actually begun the construction of the ditch. The reason that the appellee did not take any further action was because of what the commissioners had told witness and their promise to notify appellee if the ditch was to be put where it now is. Witness relied upon that promise absolutely; that was his purpose in going to the meeting — the only thing that he had in view. This was more than a year after November 14, 1916. Within thirty days after the machinery was put on the ground and they began to dig the ditch, witness brought this suit.

It occurs to' us that, although the plat had been filed on September 16, 1916, showing the route that was then contemplated by the commissioners, and, although the judgment of the county court was entered on that day establishing the district, and although the judgment of the county court was thereafter entered on November 14, 1916, confirming the assessment of benefits and showing .that no protest was made by the appellee, nevertheless a clear preponderance of the evidence does show that the commissioners had not at either of those dates definitely decided that they would not change the location of the ditch from that shown by the plat then on file. For, if they had at that time definitely fixed the location why would they afterward have taken the matter up with the appellee and her counsel with a view of changing the location and placing the ditch, if possible, where the appellee desired that it should gol That they did do this, there can be no sort of doubt, as shown by the testimony of Col. House, Mr. Pemberton, and the appellee. That they had not finally decided the matter until as late .as February 26, 1917, is also proved by the testimony of the commissioners themselves and their attorney to the effect that on the 26th day of February, 1917, they met at Mr. Galloway’s, one of the commissioners, and there decided that they would not change the route as shown by the plat and as .originally contemplated, and instructed their attorney, Mr. Jacobson, to write to Col. House, the attorney for the appellee, that they had concluded that it was impracticable to locate the ditch as desired by the appellee, and that it would be best to locate it as originally planned. This letter itself shows that the commissioners had not reached a final decision because it states that “the commissioners said they would be glad at any time to again visit the place with you and Mrs. Williams and discuss it, because they felt that it would be to her interest to locate it there.”

The testimony of the appellee and of Mr. Pemberton and of Col. House was to the effect that they did afterward discuss it and led appellee to believe that, if they did not change it as she desired, they would notify her. We conclude, therefore, without further discussion of the facts, that the preponderance of the evidence shows that the commissioners by their conduct led the appellee to believe that the route of the ditch was not definitely fixed at the time the judgment of the court was rendered establishing the district, nor at the time when the judgment was rendered confirming the assessment o'f benefits; but, on the contrary, that the location might be changed to conform to appellee’s wishes, and that if such change were not made she would be notified.

The next question is: Are the commissioners estopped from claiming that the appellee is barred from maintaining this action because she did not present her complaint to the county court complaining of the assessment of benefits, and did not within twenty days appeal from the judgment of that court confirming the assessment of benefits? To hold otherwise would be to enable the commissioners to take advantage of their own wrong and the district, which can only act through its commissioners, to profit by such wrong. If the commissioners by their acts or words led the appellee to believe that they would change the location of the ditch in controversy and that, if they did not make such change, they would notify her, and if their conduct was such to justify her in acting upon such assurances and she in good faith did so act and thereby failed to present her complaint to the county court against the assessment of benefits and the failure of the commissioners to assess damages in her favor, then unless she has a remedy in equity to restrain the further levy of assessment against her property and compensation for the property already taken and for damages to that not taken, she is deprived of her rights under the Constitution. “Private property shall not be taken, appropriated or damaged for public use without just compensation therefor.” Art. 2, sec. 22, the Constitution.

The declaration of the above provision of our Constitution that‘“the right of property is before and higher than any constitutional sanction, that same shall not be taken or damaged without just compensation, is but the recognition of the fundamental principles of natural right and justice lying at the basis of all wise and just governments independent of all written constitutions or positive law.” Cairo & Fulton Rd. Co. v. Turner, 31 Ark. 494, 500. The conduct of the commissioners, although not intended to deceive or to mislead the appellee, nevertheless had that effect, and to enable them or the district through them by virtue of this conduct to deprive her of her property would be perpetrating a fraud upon her through the forms of law.

This drainage district was 'created under act 279 of the Acts of 1909, and act 221, Acts of 1911, as amended by act 177 of the Acts of 1913. (Crawford & Moses’ Digest, §§ 3607-3655). The time given under the first section of the latter act to the property ownel for making complaint against the assessment of benefits and damages and for taking an appeal from the judgment of the county court on such assessment is exceedingly short, even when there are no mistakes or irregularities on the part of the commissioners, either in the manner of formulating the plans of the district or the assessment of benefits and damages. Where there are such mistakes or irregularities, it could never have been contemplated by the framers of our drainage statutes that the property owners should be bound thereby. These provisions of course contemplate that the commissioners should proceed in the regular manner prescribed by the statute and without any conduct on their part, intentional or unintentional, which is calculated to deceive or mislead property owners to their detriment and cause them to fail to avail themselves of the provisions of the statute made for their benefit. As is said' in Matter of Application of Mayor, N. Y., 4 Sicvkels 150-154: “The statute plainly never intended to give a vested interest in a mistake, an irregularity or a fraud, whereby important rights of property were acquired or lost. ’ ’

Section 17 of act 177 of the Acts of 1913, under which the drainage district under review was created, provides: “Commissioners may at any time alter the plans of the ditches and drainage, but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications, showing the dimensions of the work as changed, shall be filed with the county clerk, etc.” Crawford & Moses’ Digest, § 3625. Doubtless both the appellants and the appellee were proceeding upon the theory that the commissioners would have the right under the above statute to change the route of the ditch at any time before the actual work of constructing the ditch began. This was the correct theory, for, under section 4, act 279 of the Acts of 1909 as amended by section 4 of act 221 of the Acts of 1911, which section was in no manner altered by act 177 of the Acts of 1913, it is expressly provided: ‘ ‘ Such plans and specifications shall show not merely the location, width and depth of the ditches, but the work to be done in removing obstructions, etc.” Therefore, the commissioners have the power under section 17 of act 177 of the Acts of 1913, supra, to alter the location of the ditches and drainage at any time before constructing the work by complying with the terms of that section.

Counsel for .the appellants relies upon the cases of Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30, and Williams v. Rutherford, 91 Ark. 79, as authority for his contention that the commissioners had no power to change the location of the ditch after the judgment of the county court was rendered confirming the assessment of benefits and damages on November 14, 1916. In the first of the above cases the drainage district was established under the act of April 23, 1891, sections 1203-1232, Sandels & Hill’s Digest, the latter section of which provides among- other things that such order or judgment of the county court establishing the district shall be conclusive that all prior proceedings were regular and according to law. The district in the last case was established under the act of April 23, 1903, sections 3569-3606, inclusive, of Crawford & Moses’ Digest. In Williams v. Rutherford, supra, we construed the provisions of this act to mean that the county court had power to change the location of the ditch at any time before it finally approved the assessment of damages and benefits. But in neither of the above cases was there a provision in the statute under which the districts were established similar to section 17 of act 177 of the Acts of 1913 (Crawford & Moses’ Digest, § 3625), here under review, which we have seen gives the commissioners the power at any time to alter the plans before constructing the work.

We conclude, therefore, that the commissioners are estopped from asserting that the appellee is barred by the limitations contained in the act, and the decree of the chancery court so holding was correct. Kreiling v. Northrup, 215 Ill. 195, 74 N. E. 123. See, also, Newton v. Carson, 80 Ky. 309; Davis v. Hoopes, 33 Miss. 173; Swafford Bros. v. Curtis Goss, 65 Mo. App. 55; Mo. Pac. Ry. v. B. F. Combs & Bro., 71 Mo. App. 299; Purkins v. Coleman, 5 Miss. 298; Barcroft v. Roberts, 91 N. C. 363; Daniels v. Board of Commissioners, 74 N. C. 494.

The last question is as to the amount of damages. The court had jurisdiction to set aside and cancel the assessment of benefits and damages and to restrain at the instance of the appellee the collection of these assessments, and, having taken jurisdiction for this purpose, it also had jurisdiction to award her damages. Horstman v. Lafargue, 140 Ark. 558, and other cases there cited. As to the amount of damages, it is also purely a question of fact, upon which there was some conflict in the testimony; but after a careful review of all the evidence, we are convinced that a preponderance of the testimony shows that the appellee was entitled to the amount she recovered. The decree is therefore in all things correct, and it is affirmed.

McCulloch, C. J. and Smith, J., dissenting.

McCulloch, C. J.

(dissenting). The statute under which the drainage district was organized and carried on its operations in this instance (Crawford & Moses’ Digest, § 3607 et seq.) provides that the commissioners shall form plans and file the same with the county clerk accompanied by “a map showing the location of all main and lateral ditches” and by “specifications fully describing the character of the improvements to be made., the width and depth of the ditches, the probable quantity of earth to be removed and all other work to be done;” that the commissioners shall then proceed to assess benefits to the lands in the district and the damages thereto, if any, and shall file with the county clerk a list or report of such assessment, and that upon the filing of such assessments “the county clerk shall give notice of the fact by publication two weeks in some weekly newspaper. * * *” The statute further provides that any owner of property in the district who is aggrieved by the assessment of benefits or damages may present his complaint to the county court and may, within twenty days, take an appeal to the circuit court from an adverse judgment of the county court. It also provides that if an owner of property does not accept the assessment of damages made by the commissioners, he may, within thirty days after the filing of the assessment give notice in writing that he demands an assessment of damages by a jury.

The assessments of benefits and damages are necessarily made with reference to the plans and specifications on file with the county clerk and all property owners in the district must take notice of those plans, which include the route of the ditch.

There is a provision in the statute authorizing the commissioners to alter the plans, but that, if by reason of such change the original assessments are found to he inequitable, there shall be a reassessment at the instance of either the commissioners or any property owner. Crawford & Moses’ Digest, § 3625. The commissioners of such district have only such powers as the statute confers in express terms or by necessary implication. They do not deal with the owners of the property in the district in any private capacity, and all who deal with them must take notice of their powers. All the property owners in the district must take notice of the proceedings and are interested in any changes to be made. Publicity of these proceedings is required, and places are indicated where property owners may obtain information. Interested' parties have no right to rely on promises made to them privately as to what the future proceedings will be. Appellee knew that the route had been selected, and she also knew what the powers of the commissioners were under the law with reference to making changes. She had no right to rely upon alleged promises that a change would be made or that she would be notified if a change should not be made. Hardships may result in rare cases on account of misunderstandings with or broken promises of the commissioners, but this results from the failure of the property owners to resort to the protection afforded by law, and it is a dangerous thing to go beyond the limits of the law to afford protection.

I am unable to discover any principle under which appellee can be given relief against the district from the result of the alleged broken promise of the commissioners to change the route. If there is any remedy at all, it is against the commissioners personally and not against the district.


author: Wood, J. Humphreys, J.

text:
    Johnson v. State.
    Opinion delivered February 28, 1921.
    Criminal law — former conviction. — In a prosecution for the unlawful sale of liquor, a plea of former conviction was sustained by proof that at a former trial for the same offense a- number of witnesses testified to different purchases of liquor from defendant, that no specific date was mentioned, but that there was a general inquiry covering all sales within the statute of limitations, that the court instructed the jury to convict if they found him guilty of selling liquor within the statute of limitations; the former conviction in such case operating as a bar to any further prosecution for selling liquor illegally within three years of the date of the former indictment.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    reversed.

      E. A. Williams and B. W. Holland, for appellant.
    1. The court erred in overruling the plea in bar of former jeopardy. Appellant had once been in jeopardy for the same offense. 1 Bishop, Cr. Law (7 ed.), pp. 1052-4; 101 Ark. 159; 43 Id. 68-70; 65 Id. 38; 222 S. W. 1066.
    2. The court erred in its instructions.
    3. The court erred in overruling objections to the questions and answers of Mrs. McAfee.

      J. 8. Utley, Attorney General, and Elbert Godwm, Assistant, for appellee.
    1. There was no error in overruling the plea of former jeopardy. It was not verified. 32 Ark. 722; 45 Id. 97; 54' Id. 227. It was not alleged that the former conviction was for the same offense. 48 Ark. 34; 130 Id. 48.
    2. The motion for continuance was properly denied; it is not made a part of the bill of exceptions. 36 Ark. 305. Nor does it appear in the motion for new trial.
    3. No objections were made or exceptions saved to the alleged incompetent testimony. 78 Ark, 40,

      4. No exceptions were properly saved to the instructions. 2 R. C. L. 96; 2 Cyc. 738-9; 1 Ark. 349 ; 26 Ark. 526; 90 Ark. 482.
    5. The evidence fully sustains the conviction.
   Wood, J.

Appellant was convicted of the crime of selling liquor under an indictment which alleged a sale in Pope County on May 1, 1919. At his trial he interposed a plea of former conviction. In support of that plea he offered the indictment under which the former conviction was had. That indictment alleged a sale on May 15, 1919.

Appellant offered to introduce testimony to the effect that at the former trial á number of witnesses testified to different purchases of liquor they had made from him, that no specific date was mentioned by the witnesses, but there was a general inquiry covering all sales within the statute of limitation. That the court instructed the jury that “if they found the defendant guilty under the testimony of selling whiskey any time within three years from the'returning of said indictment, they should find him guilty,” and that neither the testimony nor the instructions were confined to any specific sale or date, but covered the whole cycle of time within the statute'of limitation.

The court asked counsel if the sales testified about by the witnesses at the former trial were not entirely different transactions from those about which- the witnesses- testified in the instant case; and counsel for appellant admitted that they were entirely different. Thereupon the court overruled the plea of former conviction, and refused to submit it to the jury.

A majority of the court are of the opinion that the court below erred in its ruling. The offered testimony would have shown that, to secure a single conviction, the State put in issue and proved disconnected sales made at different times to different persons, and that there was no election to rely for a conviction upon any particular sale.

Under the law each sale constitutes a separate offense, and there may be as many convictions as there are separate sales: But, if the State elects to ask a separate conviction for each separate sale, the question of guilt upon each charge must be separately and severally submitted. In other words, the jury must be told that a conviction can be had only upon a finding of guilt of making the particular sale upon which the prosecution has elected to stand.

This was done in the case of Turner v. State, 130 Ark. 48. At the trial in that case the witnesses detailed a number of sales, but the case was submitted on the issue of guilt of making a 'sale to one Marshall on which the prosecution elected to rely. Testimony concerning the other sales had been offered solely for the purpose of showing that the cider sold to the witnesses was the same kind of cider which had been sold to Marshall. It was a disputed question of fact as to whether the cider sold to Marshall was intoxicating, and the testimony concerning the other sales had been admitted as tending to show that the cider was intoxicating and that other cider bought at the same place produced intoxication upon those who drank it. It was there held that the prosecution of the other sales was not'barred.. But this was true only because the State had elected to rely on a specific sale. Had no such election been made, our holding would have been otherwise.

The rule in such circumstances is stated by Judge Cockrill in the case of State v. Blahut, 48 Ark. 34, as follows: “It is true the State may preclude the possibility of more than one conviction, even where there have been many sales, by taking a wide range in the proof, putting all the guilty sales in evidence, and relying upon the whole proof for a single conviction. In that case the defendant can be convicted upon the proof of any one of the sales made within a year of the finding of the indictment, and it is the established rule that the former conviction is a bar to a subsequent indictment for any offense of which the defendant might have been convicted upon the testimony under the indictment in the first case.”

The language here quoted has been many times approved by this court. Since the rendition of that opinion, the grade of the offense has been raised from a misdemeanor to a felony and the period of limitation has, of course, been enlarged from one year to three. Section 2886, Crawford & Moses’ Digest.

It. follows, therefore, that if, to secure a single conviction, the State makes no election to rely upon a particular or specific sale, but offers testimony concerning more than one sale, and allows the jury to decide the question of guilt or innocence upon a finding that any sale had been made about which any witness had been allowed to testify, the State will be held to have merged into a single charge all sales made within three years before the finding of the indictment, and a conviction, or an acquittal, operates as a bar to any further prosecution for selling liquor illegally within three years of the date of the indictment upon which the former trial was had.

Such is the doctrine of the case of State v. Lismore, 94 Ark. 211. The prosecution in that case was for keeping a bawdy house, and it was there said the State could have shown that the offense was committed within twelve months before the date of the filing of the information in the justice court where the prosecution was begun, and for that purpose could have adduced all the evidence of the commission of such offenses within that time and relied upon the whole proof for a single conviction. And, as was there said by Judge Battle “in that case the appellant could have been convicted of any one of the offenses proved, if any; and such conviction would be a bar to a subsequent indictment for any offense of which the defendant might have been convicted upon the testimony under the information in the first case. State v. Blahut, 48 Ark. 34; Bryant v. State, 72 Ark. 419.” And, further, that “if such evidence proved that more than one of such offenses were committed in the twelve months, and the defendant was convicted of any one of them, then such conviction is a bar to an indictment for , any of them.” See, also, Johnson v. State, 101 Ark. 159; State v. Nunnelly, 43 Ark. 68; DeShazo v. State, 65 Ark. 38; Hettle v. State, 144 Ark. 564.

Judgment reversed and cause remanded.

Humphreys, J.

(dissenting). In my opinion, the plea of former conviction was properly overruled .by the trial court. The instant case related to a different transaction or sale than any transaction or sale covered by the evidence at the former trial. Under the statutes of this State each sale of liquor is a separate offense. The test as to whether jeopardy attached by reason of the first conviction does not depend solely upon whether the State ■made an election but as well upon whether the sale or transaction complained of in the instant case constituted a part of the proof on the former trial. In my humble judgment, the language of the cases cited by the majority is against the conclusion reached by them, and strongly supports the view expressed in this dissent. For example, it was said in State v. Nunnelly, 43 Ark. 68, that “the established rule is that the former conviction is a bar to a subsequent indictment for any offense of which the defendant might have been convicted under the indictment and testimony in the first case.” And in the case of State v. Lismore, 94 Ark. 211, 213, it was said: “In that case the appellant could have been convicted of any one of the .offenses proved, if any; and such a conviction would be a bar to a subsequent indictment for any offense of which the defendant might have been convicted upon the testimony under the information in the first case.”

It strikes my mind as illogical to say that the independent sale or transaction constituting a separate offense can be barred by a former conviction of which proof was not made on the former trial, for aught that appears, may not have been known to the officers of the law at the time of the former trial.

F,or the reasons suggested, I am impelled to register my dissent from the majority opinion.


author: Hart, J.

text:
    Brownfield v. Bookout.
    Opinion delivered February 28, 1921.
    1. Limitation of actions — homestead of infants. — Where land belonging to a father was his homestead at his death, the statute will not run against his adult children until termination of the homestead right of the youngest child.
    2. Homstead — abandonment by widow. — On the abandonment of the homestead by a widow, the entire homestead right vests in deceased’s minor child or children.
    3. Trusts — resulting trust. — Where a father and sons purchased land in the father’s name under an agreement that the sons who furnished the greater part of the consideration should have a proportionate part of the land, a resulting trust in favor of the sons was created.
    4. Estoppel — acquiescence.—Where a person, with actual or constructive knowledge of the facts, by his words or conduct induces another to believe that he acquiesces in a transaction, or that he will offer no opposition thereto, and the other, in reliance on such belief, alters his position, the former is estopped from repudiating the transaction, to the other’s prejudice, regardless of the intent of the former.
    5. Estoppel — Silence.—If one maintains silence when in conscience he ought to speak, equity will debar him from speaking when he ought to remain silent.
    6. Estoppel — acquiescence.—Where a father and his sons purchased 160 acres of land under an agreement that the sons who furnished the greater part of the consideration should each have 40 acres of the land, and where the father died before paying the balance of the purchase money, an adult daughter, who, on her father’s death, declined to pay any part of the balance, and permitted the sons to pay the balance of the purchase money under agreement with their mother that they were to have the land, and to go into possession and make valuable improvements thereon, is estopped to assert any rights in the land.
    7. Estoppel — privies.—Where a daughter by her acts estopped herself from claiming an interest in her father’s land, such estoppel is binding on her children;

      Appeal from Izard Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    On the 28th day of September, 1918, Alma Brownfield et al., brought this suit in equity against W. H. Bookout et al., to have the defendants declared trustees, for themselves and the plaintiffs to 160 acres of land described in the complaint.
    The complaint alleges that plaintiffs and defendants are the children and heirs at law of Jake Bookout, deceased, and that the land described in the complaint be- ' longs tó his estate. The legal title is in the defendants.
    The defendants denied that the plaintiffs had an equitable estate in the land and averred that if the plaintiffs had an equitable interest in it, they are estopped by their conduct from claiming such interest.
    The facts are as follows: In 1905, Alfred Lowrance and Jake Bookout, together with his sons, W. H. Book-out, A. R. Bookout and J. W. Bookout, entered into a contract for the sale by Lowrance to the Bookouts, of a tract of land in Izard County, Arkansas, comprising 160 acres for the sum of $425. The contract was in writing and was made between Alfred Lowrance and Jake Bookout. The Bookouts gave Lowrance, at the time, a wagon and harness and a team of mules, which were valued by the parties at the sum of $250. J. R. Bookoiit was the owner of one mule, and A. R. Bookout was the owner of the other. Each mule was valued at $100. W. H. Bookout and his father, Jake Bookout, jointly owned the wagon and the harness which was valued at $50. Jake Bookout delivered to Lowrance two promissory notes for the balance of the purchase price of $175. One note was for $85 and the other was for $90. Jake Bookout moved upon the land, and the same constituted his homestead until his death, which occurred on the 16th day of February, 1907. He left surviving him a widow, Mary Book-out, and his sons above named, together with his daughters, Alma Bookout and Eliza Goodson, and his minor son, Owen Bookout. After Ms death, Ms widow being, unable to pay the balance due on the purchase price of said land, it was agreed between her and Ms sons, W. H. Bookout, A. B. Bookout and J. W. Bookout, that said sons should pay the balance of the purchase money, and that a deed to the land should be executed to them. W. H. Bookout paid the $85 note and the three brothers paid the $90 note. At the time the original contract was made, Jake Bookout agreed with his sons that, if they would help him pay the purchase price, as above stated, he would give each of them 40 acres of the land.'
    Alma Brownfield and Eliza G-oodson knew that their brothers made the initial payment on the land, as above stated, and that they were going to finish paying out the land and have the title taken in themselves. Eliza Groodson joined herself as a party plaintiff to the suit, but subsequently filed a disclaimer in which she stated that she would never have claimed any part of the land, but that her husband had made her do so. She testified that she did not claim any interest in the place and did not deserve any interest in it; that her brothers had paid for the place, and that she had executed a quitclaim deed to them and never claimed any interest in the land.
    Alfred Lowrance corroborated the testimony of the defendants in regard to the original contract and the payment of the land by the defendants.
    According to the testimony of W. H. Bookout and J. W. Bookout, their sister, Alma, declared that she would not help pay out the land, and knew that they intended paying it out and taking the title to themselves. Jake Bookout died on the 16th day of February, 1907, and Alfred Lowrance executed a deed to the land to the defendants on the 16th day of November, 1909, after they had finished paying the purchase price. Alma married E. D. Brownfield on the 29th day of September, 1909. She died during the pendency of this suit, and the suit was revived in the name of her minor children. Alma Brownfield lived near the land in controversy from the date of her father’s death until she instituted the present action.
    The defendants took possession of the land and made valuable improvements on it after their father’s death. In August, 1918, they sold the land to Dave Boles, one of the defendants to this action. Dave Boles made improvements on the place which it is agreed enhanced the value of the land in the sum of $150. The land, at the time the suit was pending in the chancery court, was variously estimated at from $1,000 to $1,500.
    The chancellor found the issues in favor of the defendants, and the complaint was dismissed for want of equity. The plaintiffs have appealed.

      Elbert Godwin, for appellants.
    The issues for this court to determine on the pleadings and testimony are, Have appellees asserted their rights within the time allowed by law? Were the lands the homestead of Jake Bookout, deceased? Did the defendants or Jake Bookout make the first payment on the place in the sum of $250? Were the appellees barred by laches ? Did the appellees, in good faith, believing themselves to be the true owners thereof, and under color of title make improvements on said lands? Was the finding of facts as announced by the court sustained by a preponderance of the testimony? And was the decree sustained by the testimony?
    According to the undisputed testimony, Mrs. Mary Bookout, the widow of Jake Bookout, deceased, lived on the lands with one of the three boys who were occupying and cultivating said lands from the date of the death of her husband until the lands were sold to defendant Dave Boles. Jake Bookout bought the lands in the year 1905 and died in February, 1907. He collected the rents and profits from the lands, and the boys were not known in the deal until after his death. Although the widow may have abandoned her right to the homestead in favor of the boys to whom the deed was made immediately after the death of her husband, nevertheless she could not abandon the homestead to the prejudice of the minors.
    The homestead estate is created equally for the benefit of the wife and children, and none of them can do an act that will impair or prejudice the right of the others. 29 Ark. 2i80; 21 111. 178. We admit that Jake Book-out did not have the legal title in himself. He had only the equity of redemption in said lands. There had been paid on the lands the sum of $250, leaving a balance of $175 still due and payable. It does not make any difference who paid the $250, the title bond was made, executed and delivered to him; and if he had paid the balance before he died, the deed would have been made to him and not to the three boys. A man can have a homestead interest in an equitable estate the same as in an estate in fee simple. 40 Ark. 69; 21 Cyc. 508; 101 Ark. 296.
    Jake Bookout occupied the lands as a homestead, the title bond was to him and his heirs, and the taxes were paid in his name, and he collected the rents and profits. No one was known in the deal except Jake Bookout, and he occupied them as a homestead, and he certainly had an interest that his widow or heirs could sustain against all claimants. 53 Ark. 400.
    Abandonment of .a homestead by the wife and mother does not affect the homestead right of the minor children. 115 Ark. 359; 29 Id. 635.
    Jake Bookout’s minor children had two separate estates in the lands existing at the same time and incapable of merger, one of homestead and one of inheritance. 47 Ark. 504; 53 Id. 400. Though the rights to rents and profits belonging to the heirs of Jake Bookout ceased on their becoming of age, their interest in the lands does not cease until Owen Bookout, the youngest child, became of age, if he had lived. 47 Ark. 504. Alma Brownfield was not barred by laches. 55 Ark. 85; 56 Id. 485; 155 Fed. 809-10; 85 Id. 55; 101 Id. 322 ;-30; 145 U. S. (Law. Ed.), 738.

      Appellees are not prejudiced by any delay of appellants in bringing their suit.
    The very question involved here was decided in 70 Ark. 371. See, also, 49 Ark. 242.
    The adult heirs who paid some on the purchase price of the lands stand in exactly the attitude of any other creditor of their father’s estate.
    The law forbids a trustee or one standing, in a fiduciary capacity from taking personal advantage touching the subject as to which the fiduciary relation exists. The rule applies to tenants in common. 20 Ark. 402; 5 Johnson, Chy. 407; 6 Dana 321; 3 Id. 321; 2 Black. 618; 39 Cal. 125; Freeman on Cotenancy & Part. (2 ed.), §§ 151-163. Beaphams, Eq. (3 ed.), §§ 92-3.
    The law as announced, 49 Ark. 242, is approved in 68 Ark. 534. As this case must be tried here de novo on appeal (93 Ark. 394), judgment should be entered here for appellants as prayed in their complaint.

      John C. Ashley, for appellees.
    The appellants are barred by laches and did not assert their rights in time. 55 Ark. 85; 56 Id. 485; 101 Id. 235. Alma Brownfield waited too long after she had notice. 65 Ark. 535. She was guilty of laches also. 58 Ark. 84; 55 Id. 85; 60 Id. 50; 87 Id. 233; 75; Id. 52; 97 Id. 537, 596.
   Hart, J.

(after stating the facts). Counsel for the defendants first seek to uphold the decree on the ground that the plaintiffs are barred of relief under the seven-year statute of limitations. "We can not -agree with counsel in this contention. The land was the homestead of Jake Bookout when he died. His youngest son, Owen Bookout, died in March, 1920, at the age of 15 years. If the land belonged to Jake Bookout and was his homestead at the time of his death, the statute of limitations would not begin to run against the adult children until the termination of the homestead of the youngest child. Smith v. Scott, 92 Ark. 143, and Burel v. Baker, 89 Ark. 168.

The widow abandoned the homestead after her husband’s death and agreed that the title should be placed in the defendants, her adult sons, when they should pay the balance of the purchase money. This did not affect the rights of the plaintiffs, however. Where the widow abandons the homestead, the right to the entire homestead thereupon vests in the minor child or children. Stubbs v. Pitts, 84 Ark. 160; Gatlin v. Lafon, 95 Ark. 256, and Martin v. Conner, 115 Ark. 359.

W. H. Bookout, A. R. Bookout and J. W. Bookout furnished the greater part of the consideration at the time the contract for the purchase of the land was entered into with Lowrance, and it was agreed that they should have a proportionate part of the land for their interest. This is clearly established by the testimony. Although the contract was made in the name of Jake Bookout, the father, a resulting trust was created in favor of the sons, W. H. Bookouit, A. R. Bookout, and J. B. Bookout in the land. Davis v. Dickerson, 137 Ark. 14; Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402.

It follows from this that Alma Brownfield would be entitled to claim as one of the heirs of Jake Bookout, deceased, her interest in that part of the land which was the homestead of her deceased father, unless she is estopped by her conduct from claiming her interest in the same. Where a person, with actual or constructive knowledge of the facts, induces, by his words or conduct, another to believe that he acquiesces in a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other’s prejudice. And this is so regardless of the particular intent of the party whose acquiescence induces action. 321 C. J., p. 1216, section 221; 2 Pomeroy’s Equity Jur. (2 ed.), section 818. See, also, Thompson v. Wilhite, 131 Ark. 77; Davis v. Shelby, 136 Ark. 405; Fagan v. Stuttgart Normal Institute, 91 Ark. 141, and Rogers v. Galloway Female College, 64 Ark. 627.

This doctrine rests upon the principle that, if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. This principle of natural justice decides against the plaintiffs in this case. Alma Brownfield knew the circumstances under which the original contract was made, and that a balance of the purchase price remained due and unpaid at the time of her father’s death. She declined to take any part in paying out the land and knew that it was agreed between her mother and her three adult brothers that they should finish paying out the land and take the title in themselves. They had already made the greater part of the initial payment in their father’s lifetime with the understanding that they should receive a proportionate part of the land. Alma Brownfield allowed them to remain in possession of the land after they had paid it out and to make valuable improvements thereon. In 1918 before this suit was instituted, they sold the land to Dave Boles for a valuable consideration, and he made improvements thereon which enhanced the value of the land in the sum of $150. These facts and circumstances make a case of equitable estoppel against Alma Brownfield, and she cannot be permitted in a court of equity to assert her legal rights against the defendants in whose favor the estoppel is invoked.

The estoppel against Alma Brownfield is equally efficacious in its operation upon all who claim under her. Therefore, her children are estopped to maintain this action.

As shown in our statement of facts, Eliza G-oodson, the sister of Alma Brownfield, executed a quitclaim deed to the land to the defendants and disclaims any interest in the present suit.

It follows that the decree must be affirmed. •


author: Smith, J.

text:
    Kansas City Life Insurance Company v. Ridout.
    Opinion delivered February 28, 1921.
    1. Insurance — delivery of policy with knowledge of insured’s sickness. — Though a life insurance policy provided that it should not take effect unless the applicant was in good health at the time of its delivery, the insurance company was bound by a policy delivered by an authorized agent when the agent had knowledge that the insured was then sick.
    2. Insurance — authority to deliver policy. — An agent to whom a life policy was sent with instructions to deliver it to insured has the authority to bind the company by making such delivery, although he knew that insured was sick at the time of delivery.
    3. Insurance — waiver of rquirement of good health. — The provision of a life insurance company that it shall take effect only if delivered while the applicant is in good health is one which can be waived by the company.
    Appeal from Prairie Circuit Court, Northern District; Geo. W. Clark, Judge;
    affirmed.

      Carmichael & Brooks, for appellant.
    1. Tbe evidence shows that at the time of the receipt and acceptance of the application of Homer W. Ridout at the home office, at the time it was approved by the medical director, and at the time it was delivered, he was not in good health. The applicant was dangerously ill from a disease from which he never recovered, and the policy was null and void because not approved by the medical director during the good health of the applicant. It was not accepted by the company during the good health of applicant, nor was it delivered to applicant nor his beneficiary while applicant was in good health. Under the terms of the policy itself it was void. The note for the premium was not paid at the time of trial and was never paid.
    2. The approval of the application and delivery of the policy while the applicant was in good health was a condition precedent to the making of the contract under the terms of the policy. 218 Fed. 597; 1 Joyce on Ins. (2 ed). § 97 (a); 111 Ark. 173; 36 S. E. Rep. 637; 96 N. C. 158; 1 S. E. 796 ; 33 Id. 536; 165 Pac. 997; 154 Id. 44. See, also, 35 O. C. C. 131; 106 Atl. Rep. 163; 211 S. W. 114; .181 Pao. 906; 203 S. W. 698; 134 Ark. 250.
    The policy must be delivered while the applicant is in good health. 11 Ark. 173; 97 Id. 229; 129 Id. 137; 218 Fed. 599.
    3. There was no waiver of the conditions, and the court erred in refusing instruction No. 2 asked by defendant.
    4. The banker was not such a representative of the company that he was empowered to waive such conditions precedent. 154 Pac. 44; 85 Ark. 345. We have not overlooked the case in 129 Ark. 142, nor 111 Id. 435. See,' also, 65 Mich. 527; 8 Am. St. 908; 45 So. Rep^ 208-10. Under the evidence the banker had no authority to waive conditions in a policy.
    5. There is no evidence to support the verdict.

      Brundidge é Neelly and Emmet Vaughan, for appellee.
    1. There is but one disputed question of fact, whether Hudson, the local agent, knew of the illness ¡of insured when the policy was delivered. The testimony is confiieitng, and the verdict of the jury settles the matter.
    2. The evidence shows a waiver and estoppel. The agent had authority to waive the condition and the company is estopped. 81 Ark. 205-7; 97 Id. 229; 111 Id. 236; 92 Id. 378; 97 Id. 564; 110 Tenn. 720; 27 Am. Rep. 761; 95 Tenn. 38; 93 U. S. 24.
    The acceptance of the premiums with full knowledge ¡of the condition of assured was a waiver. 127 Tenn. 521. Conditions precedent may be waived. See 111 Ark. 435; 164 S. W. 296; 136 G-a. 181; 138 Id. 778; 76 N. E. 91; 29 L. R. A. (N. S.) 433; 138 Am. St. 180; 108 Pac. 1048; 160 Iowa 184; 134 S. W. 892; 144 N. W. 843; 124 Id. 434; 144 Id. 843; 140 Am. St. 793; 124 N. W. 434; 64 S. W: 36; 55 Id. 364; 90 Id. 921; 48 Id. 219, and many others.

      The case was submitted upon proper instructions, and the evidence fully sustains the verdict.
   Smith, J.

This is a suit to collect an insurance policy issued by the appellant company on the life of Homer W. Ridout, and this appeal is from a verdict and judgment in favor of the beneficiaries named in the policy.

The applicant was examined and the medical report made out by the company’s examiner on August 2, 1919. The application was received on August 6, 1919, at the home office of the company in Kansas' City, Missouri, but the application was held for certain reports and was not approved by the medical director until August 18, 1919, on which date the policy issued.

Upon issuing the policy the company sent it to its general agency in Oklahoma City, Oklahoma, which was its “exclusive representative in the. Southern States.” This agency transmitted the policy to J. F. Hudson, the company’s local agent at Des Arc, the postoffiee address of the insured.

The letter transmitting the policy contained the following directions concerning it: “In order to advise policy holder at the earliest possible moment of the issuance of his policy, we suggest that you immediately send him a postcard notice reading as follows: ‘At your earliest convenience please call at the bank.’

“When he calls, point out that the policy as issued is in every respect what he applied for. Then ask him to sign the receipt — Form C103 — attached to policy. As this receipt is necessary for completion of our records, please return same to this office at your earliest convenience. Your co-operation in promptly returning signed policy receipt will be greatly appreciated.”

The policy arrived in Des Arc on August 27, and on August 28 a brother of' the insured called at Hudson’s office in the bank of which he was cashier for the policy, and asked to be permitted to sign his brother’s name to the receipt therefor, stating to Hudson at the time that his brother, the insured, was at home sick and could not call for the policy. Hudson first agreed to this, but upon reconsideration decided it would be better to have the receipt signed by the insured himself. This the insured did on the 28th, when the policy was delivered to him. The insured died August 30th.

Proof of death was duly made, but payment of the policy was refused because of a provision on the back thereof reading as follows:

“Section 1. This policy shall not take effect unless the first premium herein has been paid and this policy delivered to the applicant within thirty days from the date hereof, or unless the applicant is in good health at the time of its delivery.”

The insured paid the first premium by executing his note on the date of the application. Hudson accepted this note as payment, and remitted to the company its part of the premium. After the death of the insured the company offered to return this premium, but the tender thereof was refused.

It stands undisputed that the policy was issued, and was delivered, and the premium was paid; but Hudson testified that he was unaware of the insured’s illness, and that he would not have delivered the policy had he been apprised of that fact. This question of the agent’s knowledge of the insured’s illness presents the only question of fact in the case. No contention is made that any false answers were found in the application for the insurance. The jury was told there could be no recovery if Hudson was not advised of the insured’s illness; so that the jury’s verdict eliminates that question of fact. There is no allegation or proof of collusion between the agent of the company and the insured.

The decision of the case turns upon the effect to be given the act of the agent in delivering the policy after being advised of the insured’s illness — in view of the provision of the policy quoted above.

Eespective counsel have collected many cases dealing with the question stated; but we find it unnecessary to review these authorities, as we have announced the principles which control here.

The policy sued on in the case of Peebles v. Columbian Woodmen, 111 Ark. 435, contained a provision substantially identical with the one set out above in regard to the health of the applicant at the- time of the delivery of the policy. The policy there sued on contained provisions for disability benefits, and Peebles became disabled. It was insisted, on the motion for rehearing, as is indicated in the opinion on rehearing, that the agent who delivered the policy did not know the insured was seriously hurt. But we said the jury would have been justified in believing that, under the circumstances attending the delivery of the policy, the agent did know the insured was severely or seriously injured at the time of the delivery, although the agent testified that it was not thought that the insured was seriously hurt. We held that the company was bound by the act of its agent in delivering the policy. The doctrine of that case has since been reaffirmed in Maloney v. Maryland Casualty Co., 113 Ark. 174; Clinton v. Modern Woodmen, 125 Ark. 115; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133; Missouri State Life Ins. Co. v. Burton, 129 Ark. 137; American Life & Accident Assn. v. Walton, 133 Ark. 348; Sovereign Camp W. O. W. v. Anderson, 133 Ark. 411; Hutchins v. Globe Life Ins. Co., 126 Ark. 360; Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132.

It is finally insisted that Hudson was not such an agent as could bind the company by a delivery of the policy. But we do not agree with learned counsel in this contention. The delivery of the policy was the final act to the consummation of the contract. That duty was expressly committed to Hudson. He was admonished to discharge that duty expeditiously, and he was directed to secure and return signed policy receipt.

Hudson had acted for the company in taking the apolication, and in remitting the premium, and he was necessarily acting as .the company’s agent when he delivered the policy. The provision quoted above was for the company’s benefit, yet, notwithstanding that provision, he did the final and essential thing to consummate the contract of insurance, towit: he delivered the policy.

The case of Independent Order of Forresters v. Cunningham, 127 Tenn. 521, 156 S. W. 192, is found annotated in 5 A. L. R. 1569. The annotator’s case-note reads as follows: “It has been generally held that provisions in an insurance contract of a mutual benefit association stipulating that liability for benefits on the part of the insurer shall not attach unless the certificate or policy is delivered to the applicant while in good health, or unless he is in good health at the date of the policy or date of issuance, or unless he is in good health at the time of payment of the first premium, are conditions precedent which may be waived by the insurer. ’ ’

The rule stated is, of course, applicable to other insurance companies as well as to mutual benefit associations.

In support of the note quoted the author cites a large number of cases in addition to our own case of Peebles v. Columbian Woodmen, 111 Ark. 435.

Judgment affirmed.


author: Humphreys, J.

text:
    DeLoney v. Froug.
    Opinion delivered February 28, 1921.
    1. Wills — devise to one and heirs op her body. — Under a will of land to A and the heirs of her body, A took a life estate with remainder in fee to her bodily heirs.
    2. Wills — mode op division. — Where a testator devised a portion of her property to her husband and the residue to her sister for life with remainder in fee to her sister’s bodily heirs, a subsequent paragraph providing for a mode of division of the property between the husband and sister did not affect the previous gift of the property so as to give the sister a fee-simple estate.
    Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor;
    reversed.

      Woodson Moseley, for appellants.
    Lucy B. DeLoney at the time of her conveyance to J. H. Breathwaite had only a life estate under the will with a remainder over to Lucy B. DeLoney’s children. Kirby’s Digest, § 735; 95 Ark. 18; 140 Id. 109. Appellants are the owner of the estate in remainder subject to the life estate of Lucy ¡B. DeLoney, and the chancellor erred in his construction of the will.

      A. B. Cooper, for appellees.
    1. The manifest intention of the testatrix was to devise to her husband a legacy of $1,000 and the remainder of her estate to her sister, Lucy B. DeLoney, in fee simple. Wills are literally construed so as to carry out the intention of the testator. 31 Ark. 588; 218 S. W. 194; 213 Id. 372. The intention must be gathered from, the. entire will and all parts thereof, and such construction given it as will give force and meaning to every clause of the will. 98 Ark. 553; 136 S. W. 981; 167 Id. 99; 189 Id. 668; 40 Oyc. 1413. Where there is an irreconcilable conflict in two clauses of a will, the latter clause will prevail. 40 Cyc. 1413-17; 28 Ark. 102; 113 Id. 500; 115 Id. 405.
    The language of paragraph 6 of the will is clearly sufficient to indicate the intention of the intestate between her husband and her sister, and in giving her sister a fee simple estate.
    2. The language of the will, “to her heirs of her body born and unborn,” means nothing more than her children, when read in connection with the limitations contained in the concluding part of the same paragraph and the concluding paragraph. The words “heirs of her body” were not used in their technical signification for the purpose of creating a mere life estate. 23 Ark. 378; 75 Id. 19; 86 S. W. 830. Where the intention is apparent to devise a fee simple estate, it will not be presumed that the testator intended to use these words in their technical sense for the purpose of creating a mere life estate. The words “heirs of the body” ordinarily mean such of the issue or offspring as may inherit, and where such is the testator’s manifest intention may be construed to mean children. 40 Cyc. 1466; 23 Ark. 378; 75 Id. 19; 86 S. W. 830.
    When the intention of the testator is apparent to devise a fee simple estate, but is obscured or endangered by inapt words, the language will be subordinated to the intention and intention carried out. 40 Cyc. 1400-1606-7. The law favors the vesting of estates, and, in the absence of a contrary intention of the testator, the estate will vest at the time of the death of the testator. 104 Ark. 448; 189 S. W. 667; 213 Id. 372; 218 Id. 194. The lower court held that the words in their ordinary sense' vested the fee simple estate in the sister, and the finding is correct.
   Humphreys, J.

This appeal is to challenge the construction placed upon the will of Rosa Breathwaite, deceased, by the chancery court of Cleveland County. The court’s construction of the will was that it devised the tract of land involved in the suit, consisting of 260 acres, to Lucy B. DeLoney, the sister of the testatrix, in fee simple. Appellee purchased the land from John H. Breathwaite, who obtained it, by warranty deed, from Lucy B. DeLoney. They then brought suit to quiet the title to said real estate against appellants, children of Lucy B. DeLoney.

Appellants interposed the defense that the will created a life estate in said real estate in their mother, Lucy B. DeLoney, with the remainder over to" them in fee simple. The testatrix, after providing for the payment of her burial expenses, debts and a $5 legacy to a half-sister, bequeathed $1,000 to her husband, John H. Breathwaite, if her estate exceeded $3,000 in value, or one-third of the estate to him, if its value- did not exceed $3,000. Following these provisions are the fifth and a part of the sixth paragraphs of the will, relating to the lands in question. The fifth paragraph is as follows:

“5th. I give and bequeath to my beloved sister, Lucy (Brewer) DeLoney, and to her heirs of her body, bom and unborn, all the residue of whatever estate I may-die seized and possessed of every description and kind, the same to be used for their common benefit and happiness and to be controlled absolutely by my said sister and for the use of which she shall not be held to account to any one.”

That part of the sixth paragraph, relating to said land, is as follows:

“At the time of the execution of this my last will and testament I own some land near my old home place, and in the event that my estate is at my demise worth only three thousand dollars or less than that amount, and it should be necessary for my husband and sister, Lucy (Brewer) DeLoney, to make a division of the land in order that my bequests herein be carried out, then I desire them to divide it to suit themselves; and if they fail to agree, then it is my will that the matter of division be submitted to three good and lawful men for arbitration, and I further will that, if any disagreement be had, that it be settled-in this manner rather than by recourse to the civil courts. I would prefer that my sister, Lucy DeLoney, keep the land and my husband, John IT. Breathwaite, receive his legacy, whether it be one-third interest or one thousand dollars in cash or personal property. ’ ’

The language of the fifth paragraph of the will is clear and unambiguous. The limitation in said paragraph is to the heirs of the body, horn and unborn, of the devisee, Lucy B. DeLoney, and, at the death of the testatrix, vested in Lucy B. DeLoney a life estate with the remainder in fee simple to appellants, who are her bodily heirs. The language used in said paragraph is not susceptible of any other construction, under the rule announced in the cases of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, and Gray v. McGuire, 140 Ark. 109. Appellees contend, however, that, if the provisions of paragraph 5 provided for a life estate only to Lucy B. DeLoney, then there is an irreconcilable conflict between the paragraph and paragraph 6, quoted above, for the suggested reason that paragraph 6 evinces an intention on the part of the testatrix to divide her lands in fee simple between her husband, John H. Breathwaite, and her sister, Lucy B. DeLoney; and that, on account of the conflict, the intention of the testatrix in paragraph 6 should prevail, as being the latest expression of the testatrix. We do not concur with learned counsel for appellees in his construction of paragraph 6 of said will. Paragraph 6 does not attempt to devise or bequeath the testatrix’s estate. It relates entirely to the method by which certain real estate may be divided in order that her bequests may be carried out. The method provided was by agreement, if possible; if not, by arbitration, rather than by recourse to the civil courts. Since paragraphs 4 and 5 related to the character and nature of the bequests and paragraph 6 to the manner of division in the execution of the bequests, there could be no conflict between the first two and the last paragraphs. They relate to different matters.

On account of the error indicated, the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.