text:
    McCann v. Supreme Tribe of Ben Hur.
    Opinion delivered July 5, 1926.
    1. Appeal and error — ¡directed verdict — test.—In testing the correctness of a directed verdict, the appellate court must consider the testimony in the light most favorable to appellant.
    2. Insurance — benefit.association—constitution and by-laws.— Where the constitution and by-laws of a benefit association are made part of .a contract of insurance, they are binding upon the beneficiary.
    3. Insurance — reinstatement.—Where an application for reinstatement and past dues, mailed before the insured’s death, were received by the supreme tribe of a benefit society after his death and rejected by that officer, that did not constitute a reinstatement, where the by-laws of the society required acceptance of the application bylhat officer.
    4. Insurance — waiver of forfeiture. — Negotiations between a benefit society and a member looking .toward reinstatement of the member did not constitute a waiver of the forfeiture by nonpayment of dues, where such negotiations contemplated a compliance with the by-laws, which was not done.
    5. Insurance — reinstatement—acceptance of application.- — Failure of the local officer of a benefit society, having no authority to accept applications for reinstatement "and grant reinstate- • ment, to make tender of repayment of dues held not to constitute an acceptance of an application for reinstatement made after death of the member.
    Appeal from Craighead Circuit Court, Jonesboro District; W: W. Bandy, Judge;
    affirmed.

      Gautney & Gautney, for appellant.
    - Horace Sloan, for appellee.
   McCulloch, C. J.

Appellee is a fraternal-'benefit association, organized under the laws of Indiana, domiciled at the city of Crawfordsville, in that State, and doing business in tbe State of Arkansas. Subordinate organizations, designated as courts, have been established in this State, and Ernest L. Akens was a member of the local organization at Wynne, Arkansas. A benefit certificate, or policy, was issued to Akens, payable to appellant, who was then his wife. Akens was a railroad brakeman, and was accidentally killed on November 23, 1923, while on duty at or near the town of Tinsman, in the southern part of this State. Appellant has married again since the death of Aliens, and this is an action instituted by her against appellee to recover the amount named in the policy, or benefit certificate.

Appellee defended on the ground that Akéns had forfeited his membership and policy by failing to pay dues and assessments within the time required under .the by-laws, and that he had not been reinstated to membership at the time of his death. The contention on the part of appellant is that the reinstatement was complete, and the question of reinstatement in accordance with the by-laws is the sole issue in the case. The court directed a verdict in favor of appellee, and in testing the correctness of that direction by the court we must, of course, consider the testimony in its light most favorable to appellant’s right of action.

The constitution and by-laws of the association were, in express terms, made a part of the contract of insurance with the member, and the beneficiary under the policy is bound thereby. Woodmen of the World v. Jackson, 80 Ark. 419. It is undisputed that Aliens stood suspended and forfeited his membership by nonpayment of dues and assessments for the month of September, 1923, payable not later than the twenty-fifth day of that month. The constitution and by-laws provided for the reinstatement of suspended members, and the applicable by-law on that subject is as follows:

‘ ‘ Section 109. Any member who has been suspended for more than thirty days, and less than six months, must, in addition to his warranty of good health, make affidavit before some public official authorized to administer oaths, stating that he is in as gpod health as when beneficial certificate was issued, as provided on the blank form furnished by the supreme scribe; and if it appears that such member warrants his health to be good, and this fact is certified to before some public officer authorized to administer oaths, he may tender such health certificate to his local scribe, together with his monthly payments and per capita tax for all the months in which he was suspended and the court dues, if any he due, as well as any additional payments or extra assessments that may have been called in that time, and a monthly payment, including per capita tax, for the current or present month. It is the duty of the local scribe to see that the health certificate so- tendered is made out in' ink, is dated, and all blanks are filled as required by the laws. He will then forward the same to the supreme scribe, holding the monthly payments and per capita tax and forwarding them with the next monthly report, unless notified by the supreme scribe that the application for reinstatement has been refused-, in which event he will return the payments to the applicant. If the supreme scribe is satisfied of the truth of the statements contained in said certificate of health, and relying on the warranties contained therein, he will reinstate the suspended member and issue a certificate of reinstatement. # * *” -

After Akens’ suspension, one of' the supreme officers mailed to him, from the home office'at Crawfordsville, Indiana, a form letter, dated October 16, 1923, which reads as follows:

“Dear Member: You are suspended — the protection .you thoughtfully provided for your bénefieiary is no longer in effect. Was your nonpayment due to oversight ? If so, notify your scribe you wish to be reinstated at once. Has a mistake been made? If so, write to us, inclosing your receipt, if you have one, and a prompt adjustment will be made. Were you dissatisfied? If so, tell us the reason, so we may apply a remedy, but don’t leave your beneficiary unprotected in the meantime — apply for reinstatement at once. Did you feel that you could not afford to pay any longer? If so, I want to ask you what you would do if your income stopped for a few months ? Imagine, then, the circumstances of your beneficiary when your income stops forever. The protection of the Tribe of Ben Hur will be greatly needed then. The Tribe of Ben Hur has paid nearly $22,000,000 to the families of deceased members. It cannot pay anything to your beneficiary unless you reinstate. Reinstatement is easy — just sign the inclosed health certificate and hand or send it to your scribe with your payments. Take no chances. Tomorrow may be too late. Do. it now.”

Proper blanks for reinstatement were inclosed with this letter, and notice was appended, as an addendum to the blank form, of the fact that, if the applicant for reinstatement had been suspended for more than thirty days, he must make affidavit to his application before some officer authorized to administer oaths, and under seal. At the time that letter was mailed out to Akens, thirty days had not elapsed since the date of his suspension. Appellant was herself a member of the association, and had beep suspended, and, according to her testimony, she and her husband both made out applications for reinstatements on November 16, 1923. She and her husband were in El Dorado, Arkansas, at that time, and she mailed the two applications to her father at Wynne. Neither of the applications, according to her testimony, was accompanied by affidavits required by the by-laws of the association. She testified that she also mailed' to her father at that time a check for twenty dollars and a five-dollar bill. Appellant’s father testified that he received these blanks and the accompanying checks and money from his daughter, and that the application for Akens’ reinstatement was mailed to the local scribe of appellee’s court in Wynne, together with the check and the five-dollar bill. The witness says that-he does not remember whether he mailed the communication himself or whether he gave it to one of his sons-in-law to mail. At any rate, Foster, the local scribe, testified thathe received the application of Akens and the check and five-dollar bill in the mail on November 24, 1923, which was the next day after Akens was killed. Foster testified that, on November 28, 1923, he made out a receipt for the payment of Akens’ dues and assessments. Foster antedated the receipt as of November 18 and gave it to appellant’s brother-in-law, Foster testified that he mailed the application to the supreme scribe, but that he made a mistake in the address by sending it to Crawfordsville, Arkansas, and that upon return it was changed to Crawfordsville, Indiana.

The testimony is undisputed that Foster was informed on November 24 of the death of Akens, and, of course, was in possession of that information when he subsequently, signed .the .antedated receipt and mailed the application to the supreme scribe. At the time of the receipt of the application- by the supreme scribe at Crawfordsville, the latter was informed of the death of Akens, and promptly rejected the application for reinstatement, and immediately gave directions to the local scribe to that effect, and directed a return of the check and money, which, were still in the hands of the local scribe, who testified- that he made an effort to return the money to somebody, but could not find any one who would accept it.

Now, it is manifest from the undisputed evidencethat the reinstatement was not accomplished, in accordance with the terms of the by-laws, which provide expressly that the reinstatement could only be granted by authority of the supreme scribe. Even if it were undisputed that the application, together with the check and money, was placed in the mail, directed to the local scribe, before Akens’ death, still this did not constitute a reinstatement, for the by-laws expressly provided to the contrary, and .there could be no reinstatement until the application was accepted and granted by the supreme scribe. Sovereign Camp W. O. W. v. Barnes, 154 Ark. 486, 243 S. W. 55. The by-laws contained an express provision that local officers should not have authority to vary .the by-laws. Counsel for appellant invoke.the rule that an insurance company waives a forfeiture by entering into negotiations with the assured, treating the policy as being in force after the alleged forfeiture has occurred. The weakness of this contention, however, is that appellee did not enter into negotiations with the assured other than those negotiations provided for in the by-laws with reference to reinstatement. After the death of Akens nothing occurred which constituted a waiver. The local scribe had no authority to grant a reinstatement at that time or at any other time, and, according to the undisputed testimony, the supreme scribe rejected the application immediately upon its receipt. The by-laws provided that the local scribe should hold in his possession the money paid for reinstatement and that it should be returned upon rejection by the supreme scribe, but,' according to the evidence, the money was tendered back by the local scribe. Even if there was no technical lender of repayment of the money, this did not constitute • án acceptance of the application, which was sent in after the death of the member.

It is also contended that the form letter sent out from the home office to Akens on October 16 constituted a waiver by the supreme officers of the terms of the by-laws with respect to the method of reinstatement, and that it invited Akens to become reinstated merely by delivering the application and amount of delinquency to the local scribe. This contention is unsound,-for the letter was merely an invitation or an admonition concerning the duty of the member to become reinstated, and it did not in any sense attempt to waive any provisions of the by-laws. It was a mere invitation to the member to cause himself to be reinstated in the manner prescribed in the by-laws. The'statement that reinstatement “was easy,” and the direction to “sign the inclosed health certificate and hand or send it to your scribe with your payment”'did not waive any requirement of the by-laws, as it did not carry any implication that the reinstatement could be accomplished merely by complying with that s.ug-. gestión by sending in the application. Moreover, at .the time this letter was sent out and received by. Akens, thirty days had not elapsed, and the by-laws did not require an affidavit to the health certificate - as a prerequisite to reinstatement, but at the time the application was made out at El Dorado, on November 16, the thirty days had expired, and the affidavit was an essential requirement. When the application was received by the local scribe, it appeared to be sworn to before a notary public in Wynne, but, according to the undisputed testimony of appellant herself, neither she nor her husband made any affidavit, and could not have done so in Wynne, for the reason that they were both in El Dorado. At any rate, the supreme scribe was authorized to reject the application if found not to be in accordance with the by-laws, and this was promptly done by that officer upon receipt of the application.

We are of the opinion that the trial court was correct in peremptorily directing a verdict in appellee’s favor, for, according to the undisputed testimony, there was no liability.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Murphy v. State.
    Opinion delivered July 5, 1926.
    1. Indictment and information — motion to quash. — The proceedings of the grand jury cannot be reviewed by a trial court on a motion to quash the indictment upon the ground that it was returned by the grand jury without having had any evidence before that body upon which to base the indictment.
    2. Constitutional law — suspension of sentence — encroachment . on executive. — Crawford <& Moses’ Dig., § 2956, as amended by Acts 1923, p. 265, § 1, relative to wife desertion, and empowering the court to suspend sentence, held not invalid as in conflict with Const., art. 6, § 18, empowering the Governor to “grant reprieves, commutations of sentence and pardons.”
    3. Husband and wife — desertion as offense. — Willful'desertion of the wife by a husband without good cause may be made a criminal offense.
    4. Witnesses — husband and wife against each other. — Under Crawford & Moses’ Dig., § 3125, providing that husband and wife may testify against each other “in all cases in which an injury has been done by either against the person or property of the other, held1 that the statute is not limited to cases involving physical injury, so that a wife may testify against the husband in a prosecution for abandonment.

      5. Criminal law — instruction in language of statute. — An instruction in-.a prosecution for wife .abandonment, -in: the language of Crawford & Moses’ Dig., § .2596, as. amended by Acts 1923, p. 265, § 1, including the authority of the .court to suspend . 'sentence, held not erroneous as conveying the implication- that the court would suspend the sentence.
    Appeal from Sebastian Circuit Court,. F.ort. Smith District; John E. Tatum, Judge;
    affirmed.

      Holland,, Holland, & Holland and A. M. Dobbs, for appellant. -

      H. W. Applegate, Attorney General, -and John L. Carter, Assistant, for appellee. -
   McCulloch, C. J.

Appellant was convicted under an indictment charging him with the crime of abandonment of his wife and leaving the' Staté, the indictment being preferred under the following statute, Crawford & Moses’ Digest, § 2696, as amended by § 1'of act No. 331 of the General Assembly of 1923, which reads as follows:

’ “Section 1. If any man shall, without'good cause, abándon or désert his wife, or-abandon his child or children under the age ‘of fourteen years, born in or legitimatized by lawful wedlock, or shall fail, neglect or refuse to maintain or provide for such wife, child or children, he'shall, upon conviction, be punished by-imprisonment in the county jail for not more than one year, or. by a fine not less than fifty nor more than one thousand' dollars, or both such fine and imprisonment; provided, however, that, if such person, after leaving his wife or child, or wife and child, or children, shall leave the State of Arkansas, said person shall be guilty of a felony, and punishable by imprisonment in the penitentiary for a time not to exceed one year; and provided, however, that in all cases the court may suspend' sentence upon probation, employment and support of Ms wife or child, or wife and child, or children, as the case may be.”

It is charged in the indictment that appellant, ‘ ‘ Without good- cause, did unlawfully and feloniously abandon and desert his wife * * * and, after leaving his wife,' as aforesaid, left the State of Arkansas.”

The first ground urged for reversal is that the court refused to sustain appellant’s motion to quash the indictment. The ground stated in the motion was that the grand jury returned the indictment without having had any evidence before that body upon which to base the indictment. The court heard oral evidence on the motion to quash, and, in support of the motion, appellant introduced his deserted wife, who testified that she did not appear before the grand jury at any time. On cross-examination the witness identified a transcript of her testimony given before a .justice of the peace on a trial of appellant for the crime of seduction, the trial having been held before the intermarriage of the witness and appellant. It was' shown that this transcript of the testimony o.f the deserted wife was before the grand jury. It has been decided by this court that the proceedings of a grand jury cannot be reviewed by a trial court on motion to' quash the indictment for the purpose of determining whether or not the indictment was based upon legal evidence, that the statutory provision that “the grand jury can receive none but légal evidence” (Crawford & Mdses’ Digest, § 2988) is directed to the grand jury, and that a failure to observe the statute does not. afford grounds for quashing an indictment. State v. Fox, 122 Ark. 197, 182 S. W. 906; McDonald v. State, 144 Ark. 142, 244 S. W. 20.

If is next contended that the' statute is void, and that'the'court should.have sustained the demurrer to the indictment on the ground that the provision in the statute empowering the court to suspend sentence is in conflict with art. 6, § 18, of the Constitution, conferring power upon the Governor to “grant reprieves, commutations of sentence and pardons after conviction.” The recent case of Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005, is, we think, decisive of the question contrary to appellant’s contention.

It may be well, in this connection, to consider the validity of this statute with respect to the feature which makes abandonment or desertion of the wife by the husband a crime, even in the absence of the element of" failure or refusal to support the wife. It is con-, tended that it' is beyond the power of the Legislature, to create an offense out of the mere act of willful desertion. 'The offense created under the statute as originally enacted was the abandonment and desertion of the wife' of children and the failure or refusal to support, but the amended statute, as quoted above, changes the conjunctive word to’disjunctive and creates the separate offenses of desertion and of .failure to support. The indictment in the present case, as we have,already seen, merely charges the offense of desertion, and does not charge the. other element of failure to .support:. We upheld "the validity of. the statute as originally enacted (Green v. State, 96 Ark. 175, 131. S. W. 463, Ann. Cas. 1912B, 279), and, ’in doing so, we cited with approval the decisión of the "Supreme Court of Louisiana in the case of State v. Cucullu, 110 La. 1087, 35 So. 300. The Louisiana "statute under review in that case was. substantially the sámé "as our present statute on the subject. The Louisiana court in the’casé cited, as well as in the, later case’ of State v. Baker, 112 La. 801, 36 So. 703, sustained the validity of the "statute, without, however, discussing this particular feature of it. The court merely, gave its approval to the whole statute as one which was enacted fór thé general public welfare and within the power of the lawmakers. The Texas statute oh this subject is’also similar to ours, and has been sustained by the Criminal Court óf Appeals in that State in several cases. Wade v. State, 252 S. W. 770.

It is a little difficult to determine the extent to which the lawmakers may go, for the protection of society at large, in creating public offenses based upon the conduct of those joined together in marriage contract ; but. we entertain no doubt that willful desertion of the wife by the husband “without good cause” may be made a criminal offense. Certainly society "at large is interested in preventing such conduct, and the. fidelity to the marriage vows is a moral obligation’ the violation of which may be made a public offense. Our conclusion is that the statute is valid in every respect and that the court was correct in overruling the demurrer.

It is urged that the court erred in permitting the wife to testify, the contention being that the testimony of the wife does not fall within the statutory exception permitting either of the spouses to testify against the other ‘ ‘ in all cases in which- an injury has been done by either against the person or property of either.” Crawford & Moses’ Digest, § 3125.' Counsel for appellant contend that the statute'relates only to physical injury to the person, but we think this is too narrow a construction of the statute. Counsel rely on the decision of this court in Davis v. Nichols, 54 Ark. 358, 15 S. W. 880, and Billingsley v. St. L. I. M. & S. Ry. Co., 84 Ark. 617, 107 S. W. 173, holding that the words “injury to the person” in the statute creating a cause of action to recover damages refers only to physical injuries. We are of the opinion that the two statutes were enacted for wholly different purposes, and call for different. interpretations, and -that the statutes permitting husband or wife to testify against each other should be given-a much broader range in allowing either to testify against the other. The manifest purpose of the statute was to permit the husband or wife to testify against the other in a criminal prosecution in any case where the offense involved an injury to the spouse personally, in addition to the effect of the offense upon society at large. In other words, where it is a special injury to the spouse, he or she may testify against the other. The nature of this offense brings it within the exception, for the deserted wife undoubtedly suffered an injury in excess of the effect of. the offense upon the public generally.

Error of the court is assigned in giving the following instruction:

‘ ‘ 1. The court instructs the jury that, if you believe from the evidence beyond a reasonable doubt -that the defendant, Walter Murphy, in the Greenwood District of Sebastian County, Arkansas, and within three years next before finding this indictment, without good cause, did unlawfully and feloniously abandon and desert his wife, and, after leaving her, left the State, then you should convict the defendant of a felony and fix his punishment at not exceeding one year in the penitentiary; provided, however, in all cases the court may suspend sentence upon probation, employment and support of his wife and child, or wife and child, or children, as the case may be. ’ ’

It is the latter part of the instruction, referring to the power of the court to suspend sentence, which is criticised as being erroneous. It will be observed that this instruction is in- the precise language of the statute, and does not convey the implication that the court would exercise the power in favor of appellant by suspending the sentence. There was no error therefore in incorporating the language of the statute in the instruction. Jones v. State, 161 Ark. 242.

It is also contended that the evidence is not sufficient to sustain the verdict. We find it unnecessary 'to discuss the testimony in detail, as it would serve no useful purpose to do so, but we find that it was legally sufficient to support the finding that appellant deserted his wife, and that in doing so he left the State. This made out a complete crime under the statute. '

Finding no error in the record, the judgment is affirmed.

Smith, J., and Humphreys, J., dissent.

Humphreys, J.,

(dissenting). As I understand the record, it affirmatively appears that the indictment against appellant was returned by the grand jury without having heard any evidence for wife-desertion. The only evidence before the grand jury was a transcript certified by the justice of the peace containing unsworn statements made by appellant’s wife, prior to their -marriage, on the trial of appellant for the crime of seduction. The third statutory ground for quashing an indictment is that it was not found and presented as required by law. Crawford & Moses’ Digest, § 3057. Grand juries have no right to return an indictment for a crime without first hearing some evidence relating thereto as a basis for the indictment.

' In my opinion the court committed reversible error in overruling the motion to quash the indictment, and for this reason the judgment should be reversed.

1 therefore dissent from the majority opinion of the court affirming the judgment in this case.


author: Wood, J.

text:
    O’Connor v. Patton.
    Opinion delivered July 5, 1926.
    1. Adoption — oral contract. — Although an oral contract to adopt a child, not legally executed, where the child has fulfilled its part of the contract, may he enforced where the foster parent' dies intestate, such a contract does not defeat the latter’s disposition of his property by will to others.
    2. Adoption — burden, of proof. — The burden is on the person claiming the benefit of an alleged contract for adoption to establish it by clear, cogent and convincing evidence.
    3. Wills. — agreement to make.. — An enforceable contract to will property to one agreed to be but never legally adopted was not created by a promise that he would inherit property if he would return to the promisor’s home and live with him, where the promisee did not comply therewith.
    4. Equity. — maxims.—In equity it is a maxim that he who comes' into equity must come with clean hands, or, as otherwise expressed, he that has committed iniquity shall not have equity.
    5. Equity — clean hands. — A young woman, who became engaged to an old man before divorce from hér first husband and married him four days after her divorce, but refused to live with him, held not .entitled to relief in equity against an antenuptial conveyance by him- a? intended to deprive her of her marital rights.
    6. . Deeds — consideration.—As between the parties to deeds and .their privies, the consideration thereof or the fact that theywere voluntary conveyances is immaterial.
    7. Property — disposition.—The owner of property who is compos mentis may dispose of it as he sees fit, so long as he does not interfere with the existing rights of others.
    8. Trusts — parol evidence. — An express trust cannot by parol evidence be ingrafted upon a deed absolute in form.

      9. Trusts — fraud in procurement op deed. — Where there is fraud in'the procurement of a deed, the conveyance may be' shown to create a trust, though the deed is absolute on its face.
    10. Trusts — constructive trust. — To establish a grantee as a trustee ex moleficio, there must be something more than a mere ¡verbal promise, however unequivocal; otherwise, the statute of .frauds would be virtually abrogated.
    11. Vendor and purchaser — option .to repurchase. — An option to repurchase, given to the grantor some time after the - con- . veyanee, and not exercised 'by him before his death, held to be personal, and not to inure to the benefit of his devisees.
    Appeal from Ouachita Chancery .Court, ¡Second Division; A. L., Hutchins, Chancellor on exchange;
    reversed.

      Smith do Little, Jones, Buck & Gibson and U. A. Gentry, for appellant.

      H. E. Meek and L. B. Smead and J. N. Saye, for appellee.
   Wood, J.

A. H. Patton executed two deeds dated February 25, 1924. In one of these deeds he conveyed-to Dan O’Connor certain lands in .Ouachita'County,.consisting of.about 600 acres. By the other deed he conveyed to Dan O’Connor an undivided half interest, in'abput 240 acres, all situated in Ouachita County. The consideration named in both of. the above deeds was “$1. and- other valuable considerations.” This, action-was instituted by Ellen E. Patton, in the Ouachita Chancery Court against Dan O’Connor and certain other-parties named as the heirs-at-law of A. H. Patton, deceased. She. alleged that A. H.,Patton died in June, 1924, testate,: without -issue, and that she was his widow; that., on pr before March 1, 1924, A. H. Patton executed ,th.e .deeds above mentioned to O’Connor for the purpose of defrauding her. She alleged that her husband,. A.- EL Patton; had instituted a-,suit for divorce against her, and,that,while this suit was pending, he conveyed the lands mentioned.by warranty deed to O’Connor, with the understanding that O’Connor was to hold the same in trust for A. H. Patton until the divorce suit was terminated, and that O’Connor was then to reconvey the lands to A. H. Patton; that, before the divorce suit was terminated, Patton died. -She alleged that she was entitled to a half interest in the lands in fee simple; that A. H. Patton, prior to. his death, executed a will in which the plaintiff, Mrs. Sallie Reynolds, Louis Patton and Walter Patton are named as beneficiaries. She alleged that she elected to renounce the will and take her estate as the widow of A. H. Patton. She prayed that the deeds of Patton to O’Connor be canceled and that' she be declared the owner in fee simple of an undivided half interest in the lands mentioned.

0 ’Connor answered, and denied that the deeds mentioned in the complaint were executed on March 21, 1924, and alleged that they bore the true date of their execution. He denied the allegations of fraud, and denied that he held the deeds in trust for Patton. He alleged that on March 21, 1924, he executed and delivered to A. H. Patton the following instrument: 11 That whereas, on February 25, 1923, A. H. Patton, by warranty deed, conveyed 588.21 acres of land in' consideration of $1 and other valuable considerations to Dan O’Connor; that said lands are described in a deed now of record executed by A. H. Patton to Dan 0 ’Connor on February the 25, 1924, and on said day the said A. H. Patton executed to Dan O’Connor a deed conveying an undivided one-half interest in 237.27 acres, in consideration of $1 and other valuable considerations, that said deed is now of record. And whereas, it is understood by and between the said Dan O’Connor and his wife, Anna O’Connor, and A. H. Patton, grantor in said deeds, in consideration of $500 and other considerations when the same is paid to the said Dan O’Connor by the said A. H. Patton, that the said land will be reconveyed to the said A. H. Patton by the said. Dan 0 ’Connor and his wife, Anna 0 ’Connor, their heirs and assigns.' (Signed) Dan O’Connor, Anna O’Connor. In witness whereof we set our hands on-this 21st day of March, 1924. J. L. Diffie, notary public.”

O’Connor alleged that there was no consideration for the above instrument, and in the alternative, if the instrument was held to he valid, that the same was personal to A. H. Patton, but, if held otherwise, then neither the plaintiff nor any one claiming under A. H. Patton had tendered to the defendant the amount mentioned in the option, and that the defendant therefore withdrew the option. He denied any charge of conspiracy to defraud the plaintiff, and denied that she had any interest in the land.

Louis Patton, Walter Patton and Mrs. Sallie Eeynolds filed separate answers to the complaint, and, among other things, they admitted that Patton died at-Hot Springs, Arkansas, in June, 1924, testate, and named Louis Patton and the plaintiff as beneficiaries. They denied that they had conspired with 0 ’Connor to defraud the plaintiff of any interest in the land, and denied that she was entitled to a half interest therein. With that exception they adopted the complaint of the plaintiff as cross-allegations on their part against their codefendant, O’Connor, and asked that the deeds to him be canceled and that they he declared entitled to take as devisees under the will.

Louis E. Patton filed an intervention in which he denied that A. H. Patton died without issue and testate, and denied that the plaintiff was entitled to an undivided half interest in the lands. He alleged that he was the adopted son of A. H. Patton, and, as such, was entitled to inherit all of his property. He adopted as his own the allegations of the complaint that the deeds to 0 ’Con-nor were without consideration, and alleged that O’Con-nor held the same in trust for A. H. Patton. He alleged that the will of A. H. Patton was void, and pleaded in the alternative that, if the court should hold the same valid, he he allowed to take half of the lands as one of the devisees under the will. He also alleged that, if the court should hold that the deeds to O’Connor were valid, the option given by O’Connor to Patton would inure to his benefit as the heir of Patton. He asked that he he allowed to exercise the option. He alleged that the plaintiff, Ellen E. Patton, was entitled to a dower interest in the lands described, and he prayed that the deeds be canceled and that the dower be assigned her, and that his title be declared and quieted. He made an exhibit to his intervention what purported to be the last will and testament of A. H. Patton, as follows: “This, my last will and testament. I want any money, if any, or land or any other property whatsoever to be divided equally between Walter and Louis Patton, and I want my wife, Ellen, to have $1 and Sallie Reynolds $2,000.”

A' separate answer was filed by all the other parties to the intervention of Louis E. Patton, in which they denied that he was the adopted son of A. H. Patton and all other allegations. The defendant, Dan O’Connor, denied that the intervener was entitled to exercise the option executed by 0 ’Connor to A. H. Patton. The deeds and '“option” mentioned in the pleadings were introduced in evidence. Also certain other deeds, by agreement, were introduced in evidence, and the will of A. H. Patton and the order of the probate court showing that the same had been duly probated.

Mrs. Ellen E. Patton, the plaintiff, testified that she was twenty-nine years old. She had been married twice. She was married the first time to Steve L. Williams, and lived with him-.four years. She was divorced from Williams on March 4, 1924.. The ground alleged by Williams for divorce was desertion. She first met A. H. Patton in June, 1923, at which time she was the lawful wife of Williams. She was engaged to Patton in the fall of 1923, -before Christmas, while she was the wife of Williams. Patton was sixty-seven years old. After she and Patton were married, they went immediately to Hot Springs and stayed all night there. They then went to Little Rock and stayed four or five days, and then came back .to her home, where they stayed all night. Her husband then insisted that she go with him to his home, and she told him that there was no place out .there for her to-stay. After they came back he went down on the farm and insisted on her going down there, and she said he didn’t have any place to live. She didn’t know when she married Mm that the land wasn’t in his name. She married him to take care of him. She was asked if she loved Patton, and answered that “she thought enough of him to take care of Mm.”

O’Connor testified concermng the issue here involved substantially as follows: He had lived in Camden about 26 years, and was then engaged in the automobile business. He had known A. H. Patton about as long as he had lived in Camden. They were good friends —visited in each other’s homes frequently, and weré partners in a land deal. He had his home on a certain tract of land near Camden. The deeds executed to-him were-dated February 25, 1924. A man by the name of Diffiemade them out. ' Witness was present when they were made out, hut would not swear that he was present wherthey were signed. They were signed in witness’ office. Witness was pretty sure he saw Patton . sign them, although he would not swear to it. Witness thought' he heard the notary take' Mr. Patton’s acknowledgment. Diffie worked for witness. Witness stated that he was-not an expert on handwriting, and couldn’t explain how it happened that part of'the deed was filled out in pen and ink and part on the typewriter. Witness stated .that he didn’t know that where the name “Dan O’Connor’-’ was written in the deed it was in witness’ handwriting.He didn’t know whether it was or not. He didn’t believe-that any man in the world could tell his- own handwriting/ Witness didn’t think it was in his handwriting. It looked to witness like Diffie’s writing. Patton gave witness the deeds on February 25, 1924. Witness didn’t give him any property in exchange for it, and didn’t remember for' sure whether he had given him any money. He couldn’t recollect. He would not swear whether he did or didn’t give Patton $1, but he would swear that the deeds were made out completely like they are at the present, when they were given to witness by Patton. Witness could not remember the conversation that look place between Mm and Patton at the time the deeds were made. Witness was asked what reason Patton had for giving him-the deeds, and answered: “I don’t know why; anybody eonld give a deed. The land belonged to him, and he could go ahead and deed it to whoever he wanted to. ” Witness didn’t know whether he bought the land oj whether it was a gift to him, but thought, that Patton gave it to him. Witness believed that he filed the deeds for record the 21st of March, but didn’t know for sure. Witness didn’t record it before, because he didn’t think it was anybody’s business whether he recorded it then or whether he ever recorded it. Mrs. Patton and A. H. Patton were married on March 8.« Witness never told Mrs. Patton, after her marriage to Patton, that he didn’t have deeds to the property. Further along in his testimony witness was asked if he had any conversation with Patton, and answered, “I didn’t have any — nothing more than he wanted, to deed this land to me, and for me to go ahead and take care of it — deed this land to me just in case somebody was going to beat him out of it.” Witness was asked who -he thought was going to beat him out of it, and answered, “I don’t know. He was kind of figuring on getting married. He thought if he did get married he would rather let me have it.” Patton was married on March 8. He stated that he was figuring on two different women, and didn’t know which one he would marry. He thought he might get married. -He didn’t want to be beat out of his land. Witness saw- Patton every day after he gave witness the deeds, and saw him on the day witness placed the same of record. • Witness on that day signed the other instrument designated in the record .as an option. Witness gave Patton one and kept one. The instrument was executed in witness’ office. Witness didn’t remember where Patton was when he gave it to him, but he did deliver it to Patton at his request, so that, in case anything should happen to witness, Patton could have his land back. Witness further explained his relationship with Patton by sáying that they had been friends for a long time,, and anything witness could do for Patton he would do, and anything Patton could do for witness he would do. Patton always came to witness for advice. 'Witness never solicited Patton to make him a deed to the land. The execution of the deeds to witness by Patton was voluntary on his part. Witness was asked what his attitude was in regard to a reconveyance to Patton, and stated, “Well, there was no agreement like that at the time, but, of course, it was mutually understood between us.” Witness had that much confidence in Patton that he knew Patton would do that for him, and he would do the same for Patton without any question, as long as they both lived. Witness stated that the way he and Patton made the option contract, it was made for Patton personally. Patton was the only person to whom witness agreed to reconvey. Patton didn’t pay witness anything for the execution of the option agreement. Witness stated that he was a careless observer of handwriting; about all the writing witness did was to sign his own name. Witness concluded his testimony on this branch of the case by stating that the deeds were executed to him because Patton wanted to make the deed to witness for fear some one was going to take the property away from him. It was mutually understood between them all the time that anything witness had Patton could get it, and anything Patton had witness wanted, witness could get it. Even witness ’ individual property, if Patton wanted it, witness would have conveyed it to him. After the deeds were executed, Patton wrote a will and signed the same in witness ’ presence. Witness wrote it at Patton’s dictation. After the will was written and signed, witness gave it to Patton. One of the boys spelled his name L-o-u-i-s and one L-e-w-i-s. Patton’s nephew’s name was spelled L-o-u-i-s. Patton stated that he wanted his nephews named in the will. Witness could not say that Patton- ever saw his two nephews. One of them lived in Amarillo, Texas, and if he ever lived in this community witness did not know it. Witness ’ memory is very poor, but he thought that he and a man named Sautur were present and witnessed the will.

Witness Diffie testified that he was a notary public, and took the acknowledgment of A. H. Patton to the deeds in controversy on February 25, 1924. Patton did not say that he acknowledged the deeds for the consideration and purposes therein mentioned. Witness filled out the deeds conveying all the land. Witness was bookkeeper for O’Connor, and the deeds were filled out and the acknowledgment taken in O’Connor’s office. Witness likewise took the acknowledgment of Patton’s will. Sautur and O’Connor were present at the time Patton signed the will, and were present at the time each of the witnesses signed their names.

. Intervener, Louis E. Patton, née Lucian Spaulding, offered oral testimony to prove that A. H. Patton, at a church gathering, received Lucian Spaulding, then eight years old, from a preacher representing the Home Society of Indiana, and publicly agreed to adopt the ehild, and then- and there gave him the name of Louis Patton. The intervener offered-also to show by witnesses who lived-in the home of Patton at the time that Louis was -living with him; that they saw A. H. Patton mail certain formal papers adopting the intervener; that, after these papers were mailed, A. H. Patton claimed that he had adopted the intervener, and demanded and received from him the love, respect and services of a son. By various other witnesses the intervener offered to prove that A. H. Patton had received Louis Patton, intervener, into his home and treated him as a son, and had publicly said that he had adopted him. By another witness the intervener offered to show that, a short time before A. H. Patton’s death, he went to Marshall, Texas, where the intervener was then residing, and there stated that he had adopted the intervener and wished him to return to Arkansas to live, and that, in order to induce him to do so, he (Patton) would give the intervener whatever land he wanted — that the intervener was his adopted son and only heir, and would inherit all of his property. All of this testimony the trial court refused to consider.

Upon the above pleadings and testimony the trial court found the issues of law and fact in favor-of the plaintiff Ellen E. Patton and the defendant Louis Patton and ¡Walter Patton, and entered a decree canceling the deeds of A. H. Patton to O’Connor, dated February 25, 1924, and dismissed the intervention of Louis E. Patton for want of equity. The court found that the will- of Patton had been duly probated, and that it named Louis Patton, Walter Patton, Mrs. Sallie Beynolds' and Ellen E. Patton as its sole beneficiaries. The court found that A. H. Patton died without issue; that his widow, Ellen'E. Patton, renounced the will and elected to take dower under the statute. The court thereupon entered a decree vesting in Ellen E. Patton a fee simple title to an undivided half interest in all the lands owned by A. H. Patton at the time of his death, describing them, which the court found was a new acquisition, and vesting the other undivided half interest in these lands in fee simple in Louis Patton and Walter Patton. The defendant.O’Con-nor and Louis E. Patton excepted to the findings and decree of the court adverse to them, and duly prosecute this appeal. . .

We will first dispose of the appeal of the intervener, Louis E. Patton, née Lucian Spaulding. It is conceded, at least no testimony was offered to the contrary, that intervener was never legally adopted under the laws of Arkansas or Indiana. But the intervener alleged that he had been adopted by oral agreement of A. H. Patton, and that Patton had promised that at his death the intervener should inherit his property, and had promised to will him his property. Conceding, without deciding,- that an oral contract for the adoption of a child and to give the same rights as a natural child may be enforced after the death of the foster parent, this doctrine could hot avail Louis E. Patton under the pleadings and proof in this case, because A. H. Patton disposed of all the property of which he was possessed by will which was duly probated by judgment of the probate court. The-uncontroverted testimony is that the Louis Patton mentioned in the will was the nephew of A. H. Patton; that the testator desired his nephew named in the will, which was done.

The doctrine on this subject is correctly stated as follows: “The implied covenant' arising from a contract to adopt, not legally executed, where the child has fulfilled its part of the contract, is that the infant should receive a child’s share of the estate of the foster parent. In case of intestacy that share is fixed by the statutes of descent and distribution, but, if there is a will, it is fixed by the will. The mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor, because the right to take as heir exists only by operation of law. The child takes in these cases by virtue of the contract and by way of damages or specific performance. An agreement to adopt does not prevent the person making the agreement from disposing by will of all his property to other persons than the child to be adopted; but an agreement, either express or implied, to give the adopted child a certain portion of the adoptive parent’s property will be enforced.” 1 C. J., p. 1377, § 21 (b). Our statute providing that, where a person makes a will and omits to mention the name of a child, if living, etc., he shall be deemed to have died intestate, and the child whose name is omitted shall be entitled to a child’s portion of the estate, refers to natural children, or legally adopted children. The right of inheritance as such is conferred in our State upon a stranger in blood only by pursuing the special statutory proceeding for adoption. See Morris v. Dooley, 59 Ark. 483, 28 S. W. 30; Chehak v. Battles, 133 la. 107, 110 N. W. 330, 12 Am. Cas. 110.

But, even if it were conceded that a parol contract of adoption can be established in this State, the testimony offered by the intervener is not sufficient to prove that Patton contracted with him that he would inherit all of Patton’s property, or that he (Patton) would will him all of his property at his death. While a person may enter into a valid and' enforceable agreement to make a particular disposition of his property by will, the testimony offered by the intervener falls far short of establishing a contract capable of being enforced. “The burden is on the person claiming the benefit of an alleged contract for adoption to establish it by clear, cogent and convincing evidence.” 1 C. J., 1379, § 28, and cases cited in note. The contract alleged by the intervener was that he would inherit all of A. H. Patton’s property; that “he (Patton) would will him all of his property at his death.” The intervener proved that, to induce him to return to Arkansas and live with A. H. Patton, Patton said he would give the intervener whatever land he wanted and that the intervener would inherit all of his property. But the intervener himself offered to testify that he did not, after his promise, return to Arkansas and live with Patton in his declining years. Therefore, his proffered testimony proves no contract capable of being enforced against Patton or his estate. The court ruled correctly in dismissing the intervener’s complaint for want of equity.

The uncontroverted proof is that the deeds from Patton to 0 ’Connor were executed and delivered by Patton to O’Connor on February 25, 1924. The undisputed testimony shows that these deeds were voluntary, at least the testimony of the grantee does not show that he paid any money for these deeds or that he gave anything of value for them. His testimony further shows that Patton stated that, at the time the deeds were executed, he deeded the land to O’Connor “just in case somebody was going to beat him out of it. Patton was kind of figuring on getting married, and he thought if he did get married he would rather let witness have the land. He had two women in mind, and didn’t know which one he would marry. He didn’t want to be beat out of his land. ” This occurred on February 25, 1924, and Patton was married to appellee Ellen E. Patton on March 8, 1924, eleven days thereafter.

Learned counsel for the appellee Ellen E. Patton contend that these facts bring the case within the doctrine announced by this court in West v. West, 120 Ark. 500, 179 S. W. 1017, as follows: “The general rule is that, if a man or woman convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from snch marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust for, or subject to, the rights of the defrauded husband or wife.” And again, in Roberts v. Roberts, 131 Ark. 90, 198 S. W. 697, where we said: “That the wife’s right of dower is a substantial property right, entitled to protection by the courts, is perhaps most strikingly shown in action by her to. set aside conveyances made by the husband for the purpose of defeating her expectation (though not yet vested even as an inchoate right) of dower. If, shortly before a marriage, the future husband conveys away his real estate without consideration, and without the consent or knowledge of his betrothed, with the purpose and result of unfairly depriving her of dower, the courts will set aside the conveyance as a fraud upon her rights.”

It is strongly urged by learned counsel for the appellant' that the appellee cannot invoke the above doctrine in a court of chancery because her own testimony shows that, at the time she engaged herself to be married to Patton, she was the wife of Williams,- that her conduct in thus engaging herself to Patton while yet the wife of William's and marrying Patton four days after Williams obtained divorce from her, then, after living- with Patton a few days, refusing to live with him any longer, causing hint to institute a suit for divorce against her, proves that her marriage to Patton was not in good faith. The contention of counsel for. appellant is sound. “He who comes into equity must come with clean hands”, or, as it is sometimes expressed, “He that hath committed iniquity shall not have equity,” is one of the cardinal maxims of equity. 'Says Mr. Pomeroy: “Whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated' conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy." 1 Pomeroy Eq. Jur., § 397, and numerous cases cited in’ note.

Now, Mrs. Patton’s own testimony shows that-.she contracted tomarry Patton while she was yet .the wife of'Williams, and that, a few days after she married Patton, she refused to live with him any longer, She refused to go to his home, stating, that he had no. place for her to live. While she states that she married him to take -care of him, yet her conduct shows that she. refused to- live with him and to care for him. -The only legitimate, and the irresistible, conclusion from h,er testimony is that she married-him, not in good .faith because she loved him and wanted to.care for- him, but solely for his property. Her own testimony proves that, Patton, had he lived, would -have been.entitled to a divorce-against her; and therefore, upon such divorce, she would have had no right to be endowed with any property which Patton had conveyed in- anticipation of marriage. The. doctrine announced in West v. West and Roberts v. Roberts-, supra, cannot be invoked by one who shows that she entered upon-the contract of marriage* not with a bona fide.punpose of living with her husband and performing, her marital duties and discharging the obligations of the marriage relation,, but purely for the purpose of obtaining financial gain. Where husband and wife have thus each perpetrated a fraud upon the other, equity will close its doors against both, and will .not allow either to enter its unsullied forum to assert and build rights upon the fraud of the other. It follows from what w.e have said that Mrs. Patton cannot maintain this action to cancel.the deeds as a fraud on her marital rights, and likewise, the other appellees, who claim under A. H. Patton, cannpt maintain their action to set aside the conveyance. bottomed on the fraud-perpetrated on the marital rights of Mrs. Patton. .

This brings us to a consideration of the issue as to whether or not O’Connor holds the land in trust for the A. H. Patton estate. The deeds, on their face, are absolute conveyances. The testimony shows that they were likewise voluntary conveyances, but, as against the parties and their privies, the question of consideration is immaterial. The owner of property who is compos mentis has the absolute dominion over it and may dispose of it as he sees fit, so long as he does not interfere with the existing rights of others; and, in the absence of fraud, accident, or mistake, no one can call in question a man’s disposition of his property. 18 C. J. 162; 8 R. C. L. 961, § 35. Bump on Fraudulent Conveyances, p. 287, § 250. It is well settled under our statute, and by oúr decisions and the authorities generally, that an express trust cannot be engrafted by parol evidence upon a deed absolute in form. Section 4867, C. & M. Digest; Bray v. Timms, 162 Ark. 247-270, 258 S. W. 338, and cases there cited; Leake v. Garrett, 167 Ark. 415, 268 S. W. 608; Gregory v. Bowlsby, 88 N. W. (Ia.) 822, and cases there' cited. But likewise, under our decisions (and the authorities generally) where there is fraud in the procurement of a conveyance, such conveyance, even though absolute upon its face, may be shown to create a trust. Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; Morris v. Nowlin Lumber Co., 100 Ark. 253-261, 140 S. W. 1; Bray v. Timms, supra.

In the last case, at page 274, we quoted the following from Mr. Pomeroy: “A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, the promise to convey the lands to a designated individual, or to reconvey it to the grantor, and the like, and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. ' Equity regards such a person as holding the property charted with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.” And again: “"Whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealment, or other undue influence, duress,, taking advantage of one’s weakness or necessities, or through any. other similar means,.or under any other similar circumstances, which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interests.” .Measuring by the above standard, it is impossible to find anything in the conduct of O’Connor to justify the conclusion that he was a trustee ex maleficio. According, to his testimony, which is all the testimony there is ,in the record on that subject, he did not perpetrate any,fraud upon Patton in the procurement of the deeds. While 0 ’Connor and Patton,'were intimate friends of long standing, .O’Connor did not occupy any fiduciary relation .to,Patton. O’Connor did not exercise.any undue influence, over Patton to induce him to execute the deeds. On the contrary, the, deeds were proposed, executed,- and delivered by Patton to O’Connor without any solicitation or prompting whatever upon the latter’s part. There are.,some inherent weaknesses .in. O’Connor’s testimony; it is unique and peculiar in its manner of statement, and such .as to challenge belief in some respects.. Nevertheless, in the salient and essential features as .to the, execution, delivery and purpose of the deeds we do not feel justified in disregarding.it. So far as the execution of the deeds is concerned, his testimony is .corroborated by , the .testimony of .Diffie, the notary public who to.ok Patton’s aclmowledgment of his signature to the deeds. The testimony of 0 ’Connor proves conclusively that the deeds to him. were proposed, signed and-delivered by Patton, suo motu, and because of the unbounded trust.Patton reposed in him. True, the testimony of O’Connor shows that it was his purpose and the purpose of Patton that O’Con-nor should reconvey the lands to Patton at any time Patton might desire. But this was not a condition proposed by O’Connor or exacted by Patton; it was simply, the mutual understanding because of the reciprocal trust and confidence each reposed in the other, according to O’Con-nor’s testimony. There is no testimony that Patton ever expressed a desire to have O’Connor reconvey the property to him. O’Connor testified that he always intended to reconvey the lands to Patton, if Patton had requested it, and would-have done so without the execution of the written agreement designated “option.” But Patton died without ever making- such request.

"Now, there is nothing' in all of this testimony to warrant a finding'that O’Connor was a trustee ex maleficio. The death of his friend' and benefactor left O’Con-nor the absolute owner of the property, unless it can be said that his refusal to acknowledge that he held the lands in trust and to reconvey the same to the estate of Patton was sufficient to constitute him in law a trustee of such estaté ex maleficio.- Mr. Pomeroy says:' “In .order that the doctrine- of trusts ex maleficio with réspect to land may be enforced under any circumstances, there must be- something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive- fraud -accompanying the promise, and by means of which the acquisition of-the legal title is wrongfully consummated. Equity does not pretend to' enforce verbal promises in the face of the statute; it endeavors to prevent and punish fraud, by taking from the wrongdoer .the fruits of his deceit, and it accomplishes this object by its beneficial and far-reaching doctrine of constructive trusts.” 3 Pomeroy’s Eq. Jur., p. 2412, § 1056. •Certainly it cannot be said that the execution and delivery of these deeds to O’Connor was the result of a scheme on his part in order to obtain title in himself and defraud Patton. In Acker v. Priest, 61 N. W. (Ia.) 235, 239, speaking of the-facts in-that case, which are even stronger than in thfe case at bar, the court said: “He (the grantee) did not sustain such a fiduciary relation to the other parties as that he cannot, in perfect' good faith, hold the title to the land, as the authorities before cited'clearly demonstrate. Even had he taken title under an express promise to hold it in trust for his wife — which the evidpnce shows'he did not do — his denial of the trust, would not he such a fraud as to raise a constructive,trust, unless it he shown that such promise was;part ,of a ‘scheme do get the title in. himself to defraud his wife."

And in McClain v. McClain, 10 N. W. (Ia.) 333, the facts were also stronger than those in the case at bar. The Supreme Court of Iowa in that case, among other things, said: “No fraud has been shown, prior to or contemporaneous with the execution of the deed to defendant. His fraud consists in denying and repudiating his agreement to convey the land to plaintiff. However abhorrent this fraud may be in the eyes of honest men, yet it is not a ground upon which the cáse pray be removed froni the operation of -the statute of frauds so that parol testimony may be admitted to establish the agreement creating the express trust.” Such is the doctrine of our own cases. Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848; LaCotts v. LaCotts, 109 Ark. 335, 159 S. W. 1111; Ussery v. Ussery, 113 Ark, 36, 166 S. W. 946; Barron v. Stuart, 136 Ark. 481, 207 S. W. 22; Bray v. Timms, 162 Ark. 247, 258 S. W. 38.

In regard to the instrument designated in the record as the “option,” but little need be said. This “option” was without consideration moving from Patton. It was purely voluntary on the part of O’Connor, and while, under the circumstances, Patton,’ after the delivery of the same to him, Plight have éxercised the option within a reasonable time, from its execution and delivery, nevertheless it was purely-personal to him, and he died without claiming its benefits. ,No one could succeed to his rights under it. Being without consideration, and with no time specified for its exercise, it was simply a mere offer on the part of O’Connor to Patton, and O’Connor had the right,to withdraw it within a reasonable time after Patton, had been given notice and an opportunity to exercise the same. See Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299; 6 R. C. L. 603, § 25, and cases cited.

The decree of the chancery court is therefore reversed, and the cause is remanded with directions to dismiss for want of equity all complaints challenging the title of O’Connor to the lands in controversy.

Mr. Justice Hart dissents.


author: Hart, J.,

text:
    Smith v. Biddle.
    Opinion delivered July 5, 1926.
    1. Public lands — certificate of entry. — A certificate of entry issued by the United States invested- an entryman -with the 'equitable title to the land.
    2. Vendor and purchaser — marketable title. — A tax deed from the State to land for which a certificate of entry was. issued by the United States, and which was forfeited to the State for taxes, in connection with affidavits showing continuous possession of the land-in appellee and his grantors for 35-years-before execution of the contract, held to show a marketable title.
    3. Vendor and purchaser — time to perfect title. — Where no time limit is fixed in a contract for the vendor to perfect the title, the vendor, contracting to convey a marketable title, has a reasonable time to perfect the title.-
    4. Vendor and purchaser — marketable title. — Where a vendor contracted to furnish a marketable title, and a mortgage of record had been satisfied, but the deed of release had not been filed, procuring and filing such release within a reasonable time after the execution of the contract was a compliance with the contract.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against appellee to cancel a deed executed by them to appellee to certain lots in the city of Little Bock, Pulaski County, Arkansas, and to cancel a contract executed to them by appellee to certain land in Arkansas County, Arkansas.
    The written agreement in question was executed on the 21st day of November, 1923, and was signed by appellee and by appellants. Under its terms appellee was to convey certain land to appellants in Arkansas County which is described according to the United States Government survey. A part of the consideration is represented by the exchange of property and the balance by notes given for the deferred payments. Appellants, as a part of the consideration, executed to appellee a deed to certain lots in the city of Little Rock, Pulaski County, on the 21st day of November, 1923. This deed was delivered to appellee and was duly filed for record. Pursuant to the deed and contract, appellee entered into possession of the lots in the city of Little Rock and appellants entered into possession of the land in Arkansas County.
    According to the testimony of appellants, the contract was delivered upon condition that appellee was to deliver an abstract showing a marketable title to the Arkansas County land, and it turned out that the Arkansas County land had a mortgage on it which had not been satisfied of record.
    According to the evidence for appellee, no such condition was agreed upon between the parties, and appellants were fully informed that there had' been a mortgage on the Arkansas County land, but that it had been paid off. Subsequently appellee obtained a deed of release showing that the mortgage had been satisfied, and this deed of release was duly signed and acknowledged by the trustee named in said mortgage on the 8th day of December, 1923. It was filed for record on the 22d day of February, 1924.
    Other facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of appellee, and the complaint of appellants was dismissed for want of equity. The case is here on appeal.

      Mehaffy & Mehaffy, for appellant.

      J. G. Marshall, for appellee.
   Hart, J.,

(after stating the facts). The conclusion we have reached renders it unnecessary to decide where the preponderance of the evidence lies on the question of the conditional deliverance of the contract in question. If it be conceded that the preponderance of the evidence shows that it was to be delivered upon condition that appellee should furnish an abstract showing a marketable title in himself to the Arkansas County land, the evidence shows that this has been done.

It appears from the record that a certificate of entry was issued by the United States in 1820 to the Arkansas County land. This had the effect of investing the entry-man with the equitable title to the land. 32 Cyc. 1079, and Hartman v. Butterfield Lumber Co., 199 U. S. 335, 26 S. Ct. 63.

Subsequently there was a forfeiture of the land to the State for taxes, and the grantors of appellee received a tax deed from the State. The tax deed, in connection with the affidavits showing continuous possession of the land in appellee and his grantors for 35 years before the execution of the contract in question, gave a marketable title, within the rule announced in Hinton v. Martin, 151 Ark. 343, 236 S. W. 267. Indeed, no complaint was made by appellants on the failure of title, except that, when the contract was executed, the record shows there was an outstanding mortgage on the land which had not been satisfied.

The proof shows that this mortgage had been paid off before the contract in question was executed, but that, for some reason, a deed of release had not been secured and filed for record. The record shows that the deed of release was- duly procured and filed for record by appellee. No time was fixed in the contract for perfecting the title, and, where no time limit is fixed in the contract for the sale of land for perfecting the title, the seller has a reasonable time to perfect it. Dollar v. Knight, 145 Ark. 522.

The deed of release was executed and filed for record within a reasonable time after the execution of the contract in question. The abstract shows a marketable title in appellee to the Arkansas County land, and the chancery court properly held that the contract of sale should not be rescinded because of the failure of appellee to furnish a marketable title.

The decree will therefore be affirmed,


text:
    F. Keich Manufacturing Company v. Wallace.
    Opinion delivered July 5, 1926.
    1. Master and servant — negligence of foreman — instruction.— An instruction that defendant’s engineer was negligent in turning on steam if he knew or should have known that plaintiff was attempting to turn the flywheel in defendant’s sawmill off the center, held supported by proof.
    2. Master and servant — negligence—instruction.—Undisputed evidence that it was plaintiff’s duty to help roll a flywheel off center when ordered held to warrant an instruction that, if the employee was in the discharge of his duty in attempting to do so, he could recover for an injury caused by the defendant’s engineer turning on the steam or neglecting to turn it off.
    3. Trial — improper argument — correction.—-Where - defendant’s attorney stated that he wished the jury could know why the case was in the county where neither of the parties resided, response of plaintiff’s counsel that it was brought to the county possibly on an agent’s false affidavits, held not prejudicial error, where he withdrew the -remark on objection, and the court instructed the jury not to consider it.
    4. Damages — personal injuries. — A verdict of $22,541, of which $13,833 was for loss of earning capacity and $8,708 was for pain and suffering, held not excessive in view of his permanent injuries.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.
    STATEMENT OF FACTS.
    John Wallace sued Silas Baker and F. Keich Manufacturing Company to recover damages for injuries received while in the employment of said company.
    John Wallace was a witness for himself. According to his testimony, he was injured on the third day after he commenced to work for F. Keich Manufacturing Company. He was working by the piece, and was making shingle blocks. The lubricator valve on the engine broke, and.the steam was cut off. Silas Baker, the millwright of the company, went to fix the defective part of the machinery, and John Wallace assisted him. After the repairs were made, it was found that the flywheel of the engine was on center, and the machinery could not be started until the flywheel was pulled off of center. Baker gave the employees the signal to start the wheel. Wallace and other employees then went to the flywheel and started to roll it. Wallace caught hold of one of the spokes of the wheel with his hand and stood on another spoke so that he could exert more power in pulling the flywheel off of center. When the flywheel was pulled off of center, the flywheel started to running faster, and revolved with such -a jerk that it carried Wallace around with it and severely injured him.
    As above stated, when the flywheel gets on center, it cannot be started on its own power, and it was the duty of one of the employees to roll the flywheel of the engine off of center, and then steam is turned on and the machinery started up. It was the duty of Silas Baker to order the employees to roll the' flywheel to get the flywheel off of center so that it would start. It would frequently stop that way, and the millwright would ask any of the employees present to start it.
    Other witnesses who were working at the time the appellee was injured corroborated his testimony.
    Os Bowman was also a witness for appellee. According to his testimony, he had worked around sawmills for thirty years, and knew the location of the mill where the appellee was hurt. As he approached the mill on the morning the appellee was hurt, he heard a band slip and heard some one hollowing in the mill. As he ran in, one of the men said that a man was in the flywheel. He ran over there, and saw Silas Baker-at the throttle with his hand on it. The engine was running under full steam. The witness hollowed to Baker- to shut it down, and he did so. After they had got the appellee out of the flywheel, Baker said, “That is two I have killed in the last year or so.”
    •' L. W. Highsmith, the superintendent of the appellant, had control and direction of the sawmill, and was present on the day when Wallace was injured. The lubricator valve broke in the morning, and the witness told Baker to repair it. Baker went up on the boilers, a distance of about ten feet from tbe engine, and cut off the steam. Tbe flywheel was in line with the front of the boilers. The diameter of the flywheel was ten feet, and its weight was two tons. Its flange or rim was twenty-three inches wide. The width from the actual edge of the rim' to the spokes at the .thinnest point was ten and seven-eighths inches. The spokes were five inches thick. After the repairs had been completed the witness heard some one hollowing. He ran back into the boiler-room and saw a man inside the wheel. The engine was going- slow.' Baker then shut off the engine, and, approaching the witness, said, “We have killed a man.”
    Silas Baker was also a witness for the appellant. He was running the mill and looking after the machinery the day the accident occurred. He made the repairs on the lubricator valve, and shut off the steam before he did so. He opened the throttle valve and let the steam go out and then closed the valve. He took.a wrench to get the lubricator valve off, and Wallace helped him. He went upstairs to get another wrench, and, when he returned, Wallace had the lubricator valve out. The witness then, with the help of Wallace, put on a new lubricator valve. The flywheel of the engine was on center, and they had to roll it to get it started. When they got the flywheel of the engine off of center, it started to revolving, and the fireman hollowed, “'Shut it down.” The witness did so, and knew that the steam was not on full.
    Again the witness stated that there was some steam turned on at the time appellee was injured. He was asked who turned it on, and answered, “We might have rubbed against the valve.” Baker admitted that he was. the one who toid them to turn the flywheel, and that, .if there had not been any steam on, there would not have been any danger in doing so. After being notified that there was a man in the flywheel, Baker turned the steam off while Wallace was still in the revolving flywheel; he ran out to where Highsmith was and said, “I have hurt another man.”

      Wallace testified that he never touched the throttle while they were repairing the lubricator valve, and did not turn on the steam. A. Ketchum, a witness for appellee, testified that he saw Baker turn the steam on before Wallace got hurt.
    The jury returned the following verdict: “We, the jury, find for plaintiff, John Wallace, against F. Keich Manufacturing Company, and assess his damages as follows:
    “For loss of earning capacity..................................$13,833
    “For pain, suffering and mental anguish......" 8,708'
    $22,541-
    “H. E. Neblett, Foreman.”
    Judgment was rendered upon the verdict, and the defendant, F. Keich Manufacturing Company, has duly prosecuted, an appeal to this court.

      Gautney S Dudley, and Cooley, Adams $ Fuhr, for appellant.

      T. E. Caraway, for appellee.
   Hart, J.,

(after stating the facts). The main reliance of appellant for a reversal of the judgment is that the court erred in giving instruction No. 1, which reads as follows:

“You are instructed that if Baker, as engineer, knew, or, in the exercise of reasonable care and observation, should have known, that plaintiff was attempting to turn the flywheel ‘off center’ and that it was necessary that the same be done before the engine could be started; that in so doing plaintiff was in the discharge of a duty and in the line of his employment, and if you find, while plaintiff was so doing, Baker turned on the steam, or, having previously turned it on, neglected to turn it off, and that this resulted in the rapid revolutions of the flywheel, causing the injuries to plaintiff, then this conduct on the part of Baker was negligence as that term has been defined, and your verdict will be for plaintiff, unless you further find that he was guilty of contributory negligence or had assumed the risk, as those terms have been defined in other instructions.”

It is insisted that the instruction is erroneous and prejudicial to the rights of appellant, because it tells the jury that it was negligence for Baker to turn the steam on under the facts stated, or, if he had previously turned it on, it was negligence not to turn it off. It is claimed that there is no proof in the record that it was negligent to leave the steam on while attempting to roll .the flywheel off of center, or that it was not the duty of Baker more than of Wallace to turn the steam off or on. We cannot agree with counsel in this contention. Appellee had nothing whatever to do with turning the steam on or off. His whole duty in the premises was to. help roll the flywheel so as to get it off of center when told to do so by Baker. The undisputed evidence shows that Baker was running the machinery, and it was his duty to order the other employees to roll the flywheel so as to get it off of center, and that he did so. The testimony of the appellant showed that it was its duty to get the flywheel off of center. The testimony of Highsmith, the superintendent of the mill, as well as that of Baker, shows that there would have been no danger to appellee in helping to roll the flywheel if the engine had not been running. The only dispute about the matter at all was as to the amount of steam turned on. The witnesses for appellee testified that the steam was turned on full, while Highsmith and Baker testified that there was some steam turned on, hut that it was not turned on full. Now, in the very nature of things, it is manifest that it was dangerous to turn on the steam while the employees were engaged in rolling the wheel. They could not make it revolve rapidly, and, if there had been no steam on, appellee could have readily jumped off of the flywheel after they started it to rolling. The purpose of turning on the steam was to make the flywheel revolve rapidly, and it was manifestly dangerous to turn the steam on while the employees were engaged in rolling the wheel to get it off of center. Hence there was no error whatever in telling the jury that it was negligence on the part of appellant for Baker to turn on the steam, or, having previously turned it on, to neglect to turn it off while appellee was helping to roll the flywheel. There was some testimony to the effect that appellee could not have been required to help roll the wheel. . But the undisputed evidence shows that it.was a part of the duty of any of the employees who happened to be present to help roll the wheel when ordered to do so. Under these circumstances appellee was in the line of duty when he was hurt by the negligence of Baker in turning on the steam. In other words, appellee was engaged in helping to roll the wheel under the direction of Baker, and, while he was so engaged, Baker turned on the steam, thereby causing the revolving wheel to turn faster and injure appellee. According to the testimony of appellee, he did not turn on the steam, accidentally or otherwise.

A..Ketchum, a witness for appellee, testified that he saw Baker turn on the steam. Another witness testified that Baker was standing at the throttle when Wallace was being carried around by the-rapidly revolving wheel. Still another witness testified that Baker. was at the throttle when they went to turn the wheel. Baker, denied turning on the. steam, but the court submitted to the jury the question whether or not he did so. The undisputed evidence shows that the steam was turned on by some one, and this caused the flywheel to revolve so rapidly that it -jerked, appellee and carried him around with it. The act of turning on the steam and thus causing the flywheel to revolve rapidly while the appellee.was in it was the proximate cause of his injury and constituted negligence on the part, of appellant.

It is next insisted that counsel for appellee made a statement of matters not in the record, which were prejudicial to the rights of appellant and called for a reversal of the judgment. One of the attorneys for appellant, in his argument to the jury, said: “I wish you could know why this case is here in Mississippi County. Plaintiff lives at Lake City, Craighead County, and the defendant lives in that county. Why then is it here? You ought to know.”

In response to this statement, counsel for appellee said: “Mr. Adams says he wishes you to know; why the case is here. I am willing that you should know. ít was brought to this county — Although I have no objection to its being here — it was brought in another county, and then brought to this county, and possibly on the' false affidavits of an insurance agent. ”

Upon objection being made to the statement of appellee’s counsel, he withdrew it. The presiding judge was in an anté-room right next to the court when the above colloquy took place. He returned to the courtroom, and, when one of the counsel for appellant stated the substance of what had occurred, as above quoted, the court said thát the remarks of counsel for appellee were highly improper; and had'no place in the lawsuit. The jury was instructed not to consider the same.

. Under these circumstances we do not think any prejudice could have resulted to appellant. • The attorney for appellee withdrew his remarks, and the presumption is that the jury were men of ordinary discretion and experience in the affairs of life; They were a part of the court engaged in trying cases, and we are of the opinion that the remarks ‘of the court would necessarily have more influence upon them than the remarks of counsel. This is especially so, when we consider 'that the remarks of counsel for appellee were to an extent invited by previous remarks by one of the attorneys of appellant, and that counsel' for appellee himself withdrew his ‘remarks from the jury.

In support of our ruling on this point, we cite the following cases: Chess & Wymond Co. v. Wallis, 134 Ark. 136, 203 S. W. 274; Arkansas Central Rd. Co. v. Goad, 136 Ark. 467, 206 S. W. 901; Central Coal & Coke Co. v. Orwig, 150 Ark. 635, 235 S. W. 390; Arkansas Short Leaf Lbr. Co. v. Wilkinson, 154 Ark. 455, 243 S. W. 819; Southern Anthracite Coal Mining Co. v. Rice, 156 Ark. 94, 245 S. W. 805; Black Brothers Lumber Co. v. Person, 163 Ark. 40, 258 S. W. 976.

It is next insisted that the verdict is excessive, both as to loss of earnirig capacity andas to pairi and: suffering. Appellee wasa-steady'worker arid.in good health’at the time he was injured.' He had beén at "work two days and three'-hours at thé timé 'he' wás injured. He was do'irig piece work,' arid was due $6.50 for his. work.. He volririWef ed to help repair the machinery in order that he might get to work again. He knew that he would not be paid anythirig-for-helping- to‘repair the machinery, or for helping1 to start- the flywheel rolling/' Hé did these things . in order that he might gét back to Work, and the jury might have' inferred from-'this that he was áú industrious , mari'and tháf his earning capacity would, increase. He. had "a life expectancy of practically twenty-one years. His "body was horribly bruised and mangled .by being-carried around in the rapidly revolving fly-wheel, and it is evident that he can never work any more. Under these circumstances it cannot be said as a matter of.law that the' sum of $13,883 is excessive compensation for his loss, of earning Capacity.. ‘The jury allowed him $8,708 for' paiibahd suffering. 'Appellee was in the hospital thirteen weeks, and' suffered excruciating pain. . When the. engine was started, he was in the flywheel, standing.on one spoke < and'fulling.down with his hands on,another spoke. ..Two ribs wéfé broken from, his breastbone and,,two other rib,s were‘torn from His backbone when the engine was started, •- thereby causing the flywheel to, revolve rapidly. _ Before.-.-, the accident he' was in' good health,,but cannot now. even,/ si-t up a day át a time! He has no strength whateyerin his left leg. His right leg was torn off, except hanging by a few-muscles. ' It was amputated/. ."His left leg was partly crushed, but has-a fairly good'union. "Three or, ; four inches <5f bone is'gone out! bf it.' He* has two or..three ! dislocated vertebrae, arid this has a.bad effect! He is not . able to work; arid never will be. It "gave him much pain to walk at the time of the trial. The undisputed evidence shows that he suffered great agony and must continue to suffer for the balance of his life.

"When all these matters are considered, it, cannot be said that'the judgment should be reversed because, excessive damages' were awarded by the jury. .

The court gave numerous instructions at the request of both parties, and it would seem that fewer instructions. might have presented the issues. We have examined the instructions, however, and are of the opinion that there is no conflict between them, and that they haye fully and fairly presented the matters at issue under the principles of law so often declared by this court. The instructions refused were either covered by the instructions given or are argumentative in character.

We find no "reversible error in the record,' and the judgment will be affirmed.


author: Smith, J.

text:
    Lacefield v. State.
    Opinion delivered July 5, 1926.
    1. Intoxicating liquors — possession of still. — In a prosecution for haying a still, . its ownership .is immaterial if- in 'fact the accused was operating it.
    2. Intoxicating liquors — possession -of- still. — In a prosecution for having a still, an instruction defining possession, as the right to control or manage the still or some sort of ownership therein, an,d .requiring the State to' prove same beyond a reasonable doubt, held, favorable to the accused.
    3. Criminal law — hearsay evidence. — In. a prosecution-for possessing a still, testimony of .officers who arrested accused that they had suspfected some one else who, they had been informed, .was owner and operator bf the still, held properly excluded as hearsay.
    4. Intoxicating 'liquors — possessing still — evidence.—Evidence held- -to- sustain -conviction for possession of "a still.
    Appeal from Like Circuit Court; B. E:Isbell, Judge;

    affirmd.

      H. W. Applegate, Attorney General, and J. S. - Abercrombie, Assistant, for appellee.
   Smith, J.

Appellant was indicted for having a still and stillworm in his possession without having the same registered, was convicted, and has appealed.

There is but little to discuss on the appeal. Three witnesses testified that they located the still, and, a few days later, they surrounded .it very early in the morning. . They saw appellant with an armful of wood, with which he-built a fire in the furnace of the still. Appellant was alone at the time.. • After starting the fire, appellant walked off some little distance and brought something back, and sat down in front of the fire. Some mash, which had been in a barrel when the witness first discovered the still, had been poured into the still. Appellant was arrested, and, after his arrest, was asked if he knew of any one else interested in the still, and he answered that he did not.

Appellant admitted having been found at the still, but denied having any knowledge about it or anything to do with it. He testified that he happened to be at the still that morning, as he was going hunting, and that he stopped and lit a torch to light himself through the woods, when he discovered the still, and stopped to look at it, but did not start a fire in the furnace.

The court submitted to the jury the question whether appellant was in possession of the still, and the jury was told that mere presence at the still as a spectator, would not warrant a conviction.

The court gave, at appellant’s request, an instruction numbered 9' reading as follows: “The court instructs the.jury that the word ‘possession’ means the right ..to control or manage , the still, or some-sort of ownership therein, and, unless the jury finds .from the. testimony in the case, beyond a reasonable doubt, that the defendant in this case did own the still or some interest therein, or that he had a right to control or manage the same, you will find him not guilty, and the burden of proving such right of posséssion or control rests upon the State.”

This instruction was as favorable to appellant as he could ask an instruction to be. The ownership of the still was immaterial if in fact appellant was operating it. The operation of the still was itself an act of possession sufficient to sustain the conviction. The State was not required to show that appellant was the owner or was rightfully in possession. If he assumed control of the still, and put it to the use for which it was intended — that of making intoxicating liquors — this was such an act of possession as constituted a violation .of the law against possessing a still.

Defendant’s counsel asked the officers if they had suspected appellant of being in possession of the still before arresting him, and they answered that they had not. The witnesses were then asked whom they suspected, and the court sustained an objection to this question. Appellant’s counsel then asked the witnesses if they did not have information that another person, whose name the appellant’s counsel asked the witnesses to state, was the owner and operator of the still, and objections were sustained to these questions.

. There was no error in these rulings. The testimony was hearsay, and incompetent for that reason. Moreover, as we have said, the ownership of the still was unimportant, as was also the complicity of some other person, if appellant was in possession of the still, operating it as such;

In the case of McGuffin v. State, 156 Ark. 392, the accused was charged,, as is the appellant here, with the offense of having possession of a still without registering it. McGuffin and another man were found making whiskey with the still, and we said this testimony was sufficient to support the verdict of guilty returned by the jury. See also Ring v. State, 154 Ark. 250, 242 S. W. 56; Wright v. State, 155 Ark. 169, 244 S. W. 12; Goodwin v. State, 161 Ark. 266, 255 S. W. 1095.

Appellant requested instructions on the subject of reasonable doubt, which the court refused to give, but the instructions given fully and correctly declared the law of this subject.

The testimony is sufficient to support' the verdict, and, as no error appears, the judgment is affirmed.