text:
    Union & Mercantile Trust Company v. Harnwell.
    Opinion delivered April 16, 1923.
    1. Bills and notes — transfer as security for antecedent debt. —One who receives a negotiable note before maturity as collateral security for a preexisting debt may be a holder for value in due course of business.
    2. Pledge — right of pledgee to sell. — A contract of pledge providing that the pledgee may sell. the thing pledged at public or private sale did not contemplate that the pledgee could sell to itself at private sale.
    3. Pledge — effect of failure to pay debt. — The failure of a pledgor who has pledged property as security for a debt to pay the debt at maturity does not vest title to the property pledged in the pledgee.
    4. Pledge — mode op sale of pledge. — In the absence of a special agreement, the sale of a pledge must be at public auction after due advertisement, so that the pledgor may see that the, sale'is fair and arrange to get the 'best price; but the pledgee may waive notice and authorize a priváte -sale.
    5. Appeal and error — question not raised below. — Where'appellant in the court below -admitted that the amount of the court’s decree was correct, he will not be heard on appeal to contend that the decree was erroneous in computation of interest.

      Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Moore, Smith, Moore & Trieber and J. G. Marshall, for appellant.
    No proof of an .agreement by the bank to give appellees $850 on their note, and, if there had been, it was without consideration. The executory agreement to make the gift, if it existed as claimed, was not consummated by the execution of writings or by the entry of a credit in the note, and was invalid. 20 Cyc. 1202, 1208; 100 111.-App. 75; 28 Mich. 221, 42 Am. Rep. (N. Y.); 32 N. Y. Supp. 1103. Execution by appellee .of his note for extensions for full amount- of debt estops him from claiming a reduction. Ill Ark. 358; 118 Ark. 465; 126 Ark. 14; 96 Ark. 268. Another complete answer to this defense is that all evidence offered to support it was incompetent, being contradictory of the terms of the writing. 19 Ark. 690; 17 Cyc. 589. The indorsement, pledge and subsequent sale of the note, according to the terms of the collateral contract, vested the title to the note in the bank, with right to collect same in full. 94 Ark. 387; 32 Ark. 742; 95 Ark. 542; 31 Cyc. 878, 872, 880, 883; 88 F. 217; 104 F. 409; 165 F. 802; 90 A. 189; 149 U. S. 327; 76 Mo.-290; 21 R. C. L. 694; 123 U. S. 562; 54 F. 759; 45 Ark. 177.
    No brief for appellees.
   Wood, J.

This action was instituted by the appellant against the appellees to foreclose a mortgage on lots 1, 2 and 3, block 11, Pulaski Heights Addition, Little Rock, Arkansas. The appellant alleged that the appellees executed their promissory note on July 11, 1914, to one Harry Wirbel in the sum of $3,000, with interest at the rate of seven per cent, per annum from date until paid; that, to secure the note, Louise B. Harnwell executed her mortgage on the lots mentioned; that on October 22, 1918, the note above mentioned was duly transferred and assigned on the mortgage and on the record of the mortgage to the' appellant, and that it is now the owner of the note and mortgage; that no part of the note had been paid; that two notes were executed by the appellees to the appellant in the .sum of $105 each for the interest due, one on Jan. 11, 1919, and the other on Jan. 11, 1920; that these notes bore interest at ten per cent, from due date; that the debt as evidenced by the notes was due the appellant, and that the mortgage was subject to foreclosure, and the complaint concluded with a prayer for judgment and foreclosure of the mortgage.

The appellees,'in their answer, admitted the execution of the note for $3,000, and the mortgage, but denied that the appellant was the owner thereof. They alleged that the appellant loaned to Harry "Wirbel $2,150, and that the note and mortgage were never transferred and assigned to the appellant as alleged, but were still the property of Irma Wirbel; that the appellant, after Harry Wirbel applied to be adjudged a bankrupt, sold said note and mortgage to itself without authority and without notice to the owner, and have since claimed to be the owner by reason of such sale; that the appellant collected interest at 7 per cent, from the appellees, and had not accounted for the same. They set up the plea of usury (which has been abandoned); that thé appellees had a distinct understanding with the appellant that it would be satisfactory to pay $2,150, the amount of Wirbel’s note, and appellant acknowledged it was entitled only to that sum; that later appellant demanded $3,000 with interest. Appellees refused to pay, and demanded that the appellant bring .suit, or they would do so; that the appellant has never paid or accounted to Wirbel or to the appellees for the interest paid subsequent to the bankruptcy of Wirbel, or two installments of interest prior thereto. That the appellant is not entitled in any event to more than $2,150 and interest, and they prayed that the excess interest be refunded.

On the 11th of July, 1914, Mrs. Louise B. Harnwell executed a promissory note to Harry Wirbel, indorsed by C. P. Harnwell, in the sum of $3,000, bearing seven per cent, interest from date until paid, payable in four years after date, interest payable annually. This note was secured- by a mortgage on lots 1, 2 and 3, block 11, Pulaski Heights Addition, Little Rock. Harry Wirbel borrowed from the appellant the -sum of $2,150, evidenced by his promissory notes, one dated Feb. 15, 1917, for $1,650, and the other dated March 5, 1917, for $500. These notes -bore interest from maturity at ten per cent, per annum until paid, interest payable semi-annually. Each of the notes contained a recital showing that the note-of. Mrs. Harnwell for $3,000 was pledged to the appellant as -collateral, and that the collateral note was ¡secured by lien on the lots above mentioned. Each of the notes also 'contained the following recital: “It is

hereby agreed that, upon the nonpayment -of this obligation, or any installment of interest thereon, the said company or holder thereof may sell the same at public or private sale, for cash or on credit, as a whole or in parcels, at 'any place in the city of Little Rock, without notice, and said company or holder may, at any such sale, purchase the same, or any part thereof, for its or his own account, and, after deducting all costs of sale, the balance of the proceeds shall be applied to this obligation,” etc. The interest accruing, and paid to the appellant on the Harnwell noté, was applied on the Wirbel 'nóte, and part of the excess was applied on the principal .of the Wirbel note, and the sum of $152.33 was sent to Wirbel. -On the 19th of November, 1917, appellant wrote;to.-Wirbel, in substance telling him that, by reason of 'the 'default in the payment of his notes, which were then some months past due, it would offer for sale to the highest bidder on Nov. 30, 1917, at ten o’clock a. m., at the office of the bank, the collateral note of Mrs. Harnwell for $3,0Q0,.-descri-bing- the same as above, and would •apply-the ^proceeds derived from-the sale to the satis••faction of its debt. .......'

After testifying to the above facts, .the assistant, secretary of the appellant farther stated that the appellant carried ont the sale, at the time designated, in the lobby of the bank, and the note was bid in by representatives of the bank for the amount of its debt, which was $2,030.15-after applying all just credits. The price paid for the collateral was a fair one. Neither Harnwell nor Wirbel was there to bid on it or to redeem it. The sale, was conducted fairly and -without fraud, and in compliance with the terms of the contract. Two officers of the bank and one or two others were present at the sale. The contract did not require the appellant to make a' public sale, but it made it public to that extent. Appellant gave the notice that was required. The appellant, did not notify the Harnwells, but only notified Wirbel.'

The secretary of the appellant testified that the col-, lateral was bought in for less than its face value. The. appellant paid a fair price for the collateral at tha,t time.;: Appellant would rather have had the money than the; collateral. •

Moorhead Wright, president of the appellant, testified that Wirbel wanted to sell the appellant the; collateral note of Harnwell, but appellant did not want’'to buy it, and the question with appellant was how much’ they would lend on it. Witness was familiar with the', sale of the collateral and its purchase by the bank; thought the amount paid was the full value'of the note at that time. The property in the mortgage had increased considerably in value since appellant purchased' the note five years ago.

Harnwell testified that, without notice to witness, who lived in Little Rock and passed the bank many times a day, and without notice to witness’ wife, the appellant^ on Nov. 30th, sold to itself'witness’ note and mortgage for the amount of the Wirbel notes. When witness’ note to Wirbel became due in 1918, witness went to the bank to see about paying or renewing it, and was- told that -his note had been sold under the collateral agreement. This was the first witness knew that the bank claimed title to the note and mortgage. Witness objected, and told the bank that he was perfectly willing to pay the $2,150. He said he conld go out and borrow it somewhere else, or renew it with them, but he didn’t expect to have to pay the $850 that didn’t belong to the bank. The testimony of Harnwell and the Wirbels was to the effect that the $850 had been given to Harnwell by Mrs. Wirbel for legal services.

The conclusion we have reached upon the facts as above set forth makes it unnecessary to set out in detail further testimony in the record. The court found that the appellees were indebted to the appellant in.the sum of $2,328, and entered its decree for that sum, with directions that same be paid out of money from the sale of the lots in controversy, which had been deposited in the registry of the court, and that the balance be paid to the appellees. Prom that decree appellant prosecutes this appeal, and the appellees cross-appeal.

1. The first and principal question for decision is whether or not the appellant is the owner outright of the Harnwell note to Wirbel. Wirbel pledged to the appellant Mrs. Harnwell’s note as collateral to the loan which he had obtained from the appellant. Appellant therefore was the holder of the Harnwell note for value in due course. Exchange National Bank v. Coe, 94 Ark. 387. Wirbel could not thereafter transfer any interest he had in Mrs. Harnwell’s note to Mrs. Wirbel, or any one else, so as to defeat whatever rights the appellant might thereafter acquire in such note, under the contract by which Wirbel had pledged such note to appellant as collateral. The contract was that, upon the nonpayment of Wirbel’s note to appellant, or any installment of interest thereon, the appellant might sell Mrs. Harnwell’s note at public or private sale, for cash or on credit, at any place in the city of Little Book, without notice, and at such sale might purchase the same for its account.

Mr. Mechem defines public and private sales as follows: “A public sale is one made at auction to tbe highest bidder. A private sale is one not made by public auction, but by private negotiation. Private sales are always voluntary, but forced sales are always public. A voluntary sale may also be public, at the pleasure of the owner.” Mechem on Sales,- § 10.

Mr. Benjamin says: “That it requires parties competent to contract and mutual assent in order to effect a sale, is manifest from the general. principles which govern all contracts.” Benj. on Sales, p. 2.

In Cage v. Black, 97 Ark. 613-17, we said: “In order to constitute a binding contract of sale there must be a mutual assent of both parties to the essential terms of the agreement.” And in Scoggin v. Morrilton, 124 Ark. 585, we -said: “A sale is a contract for the transfer of property from one person to another, for a valuable consideration. * * * A sale may be proved by circumstances as well as by affirmative evidence, but, where it is sought to prove a sale by circumstances, they must warrant the inference that there was a seller and a purchaser, a thing to be sold, and compensation in some form from the purchaser to the seller for the article sold.” See -also other cases cited in 4 Crawford’s Digest, p. 4439, § 1.

Applying these elementary principles to the facts of this record, it is clear that there was no -sale, either public or private, of the Harnwell note, according to the terms of the contract by which Wirbel pledged said note to the appellant as collateral. There was no private sale, because there was no negotiation whatever by the appellant, the seller, with any third party as a prospective buver for the sale and purchase of the Harnwell note. The contract of' pledge certainly did not contemplate that the appellant, as pledgee of the property, could purchase the collateral itself, paying as a consideration therefor Wirbel’s debt to it, without making any' effort wliátever to sell the collateral to a third party. The contract of pledge provided that the appellant, as pledgee, conld sell the Harnwell note at private sale, but this contemplated a.sale to a third party and not to appellant itself. There is nothing in the contract to justify the conclusion that the parties to the contract of pledge intended that the appellant should have the power to transfer to itself title to the Harnwell note by simply satisfying Wirbel’s debt, without any endeavor to see whether third parties were willing to pay more for it. The appellant, in making the sale of the Harnwell note, was a trustee for Wirbel, its debtor and pledgor, and it was appellant’s duty to adopt all reasonable modes of procedure in order to render the sale most beneficial to the debtor. It could not discharge this duty by simply resolving in its own mind that the property pledged was worth no more than the debt of the pledgor, and that therefore it would sell the Harnwell note to itself by satisfying this debt and transferring the pledge, so to speak, from one pocket to the other. See Fitzgerald v. Blocher, 32 Ark. 742, and other cases there cited. See also Hagan v. Continental Nat. Bank, 182 Mo. 319, 81 S. W. 171. Wirbel’s failure to pay his debt at maturity did not ipso facto vest title to the pledged property in the appellant, and appellant, by proceeding as it did, could not divest title out of Wirbel, the pledgor, and vest it in itself, because there was no effort whatever, as we have stated, to consummate a private sale of the Harnwell note.

The undisputed evidence shows that appellant attempted to make a-public sale of the collateral under the contract of plédge. But its effort along this line was abortive because no notice whatever was given to the public of the time and place of sale. No opportunity was given the public to'bid at such sale. There was no auction of the Harnwell note, which was necessary to constitute a public salé thereof. True, the contract provided that, upon nonpayment of the Wirbel obligation, the appellant could sell the .Harnwell note “at public or private sale, at any place in the city of Little Bock, without notice.” This language is ambiguous, but it necessarily means that, if the sale were private, it could be' made without notice to the pledgor, Wirbel. The parties could not have meant that, if the appellant elected to sell at public sale, no notice of the sale would have to be given to the public. Such a construction of the contract of pledge would render the same contradictory within itself, because a public sale could not be conducted unless the public were invited to participate therein. Such construction of the contract would render the same wholly meaningless.- In the absence of a special agreement, the sale of a pledge must be at public auction, after due advertisement, so that the pledgor may see that the sale is fair, and arrange to get the best price. The pledgor may, by agreement, waive such notice to himself and authorize a private sale. But where the contract expressly provides that the -sale may be public or private, as it does here, if the pledgee chooses to make the sale public, then notice of such sale must be given the public in- the usual and customary manner for sales of such pledged-property. 31 Cyc. 878. See Fitzgerald v. Blocher, supra; Fitzpatrick v. Bank, 95 Ark. 542; Foot v. Bank, 54. Pac. 104.

As we construe the contract of pledge under review, it authorized either a public or private sale, and if the sale be private, then it may be made without. notice to the pledgor; if public, then notice to the public of the time and place of such sale is necessary, and the' sale must be made at auction. As we stated in the beginning, the undisputed evidence shows that there was no sale, either public or private, of the Harnwell note. Since there was no sale according to the terms of the contract of pledge, the appellant acquired no title whatever to the Harnwell note. The court was correct in finding that Harnwell owned the equity in the Harnwell note which had -been given, him by Mrs. Wirbel for legal services rendered. Therefore' it follows that the trial court was correct in entering the decree in favor of the appellant against the appellees for the amount of the indebtedness of Wirbel to the appellant on the. day the decree was rendered, and in decreeing the balance in the registry of the court to Harnwell.

2. The appellees, on their cross-appeal, contend that the amount of the court’s decree, $2,328, is erroneous. In their brief they make a computation of the amount due, computing the interest on the method of partial payments and also without such method. According to either of these methods, they contend that the amount of the court’s decree was erroneous. But the record fails to show that the appellees introduced, or offered to introduce in evidence at the trial of the cause, the figures and methods of computation which they now insist prove that the amount of the decree is erroneous. On the contrary, during the cross-examination of the witness Harnwell for the appellees, the following occurred: “Ques.: You are not prepared to dispute, and do not dispute, the account of these transactions that were kept by the bank, who did keep books — you wouldn’t set up your memory against the books, would you1? Ans.: It isn’t my memory — I have the checks here. Ques.: You haven’t shown that there was anything wrong with the figures they have shown here, have you? Ans.: No, not at all.”

It thus appears that Harnwell in his testimony stated that he had not shown anything wrong with the bank’s figures upon which the court bottomed its decree. While he stated he had his checks, the record does not show that he introduced, or offered to introduce, the checks in evidence, and does not show that the checks, if introduced,, would have altered the result as shown by the books of the appellant. It is too late now to introduce figures and calculations (which were not before the trial court) to show that the amount of the court’s decree was -erroneous. Since we liave concluded that there was no sale of the Harnwell note, other interesting questions so elaborately argued in briefs of counsel pass out.

The decree is in all things correct, and it is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Partain v. Greene County.
    Opinion delivered April 16, 1923.
    Drains — commissions of collector. — Under special act of February 24, 1915, providing that the collector of Greene County “shall be allowed a commission of two per cent, for collecting the revenues,” held that the collector was entitled to two per cent, for collecting the drainage taxes or assessments in drainage districts in Greene County.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, Judge;
    reversed.

      Jeff Bratton, for appellant.
    Appellant was entitled to collect the 2 per cent, commission claimed for collecting the taxes in drainage district. General law, § 10071. C. & M. Digest. Haley v. Thompson, 116 Ark. 354, was amended by special act 78, Acts 1915, p. 273, so as to allow the commission for collection of drainage taxes in Greene County; § 3590, C. & M. Digest ;'l Page & Jones, Taxation by Assessment, 79; 106 111. 547; § 3634, C. & M. Digest; also § 4624.

      M. P. Huddleston, for appellees.
    Sole question for decision is whether § 10071, C. & M. Digest, has been amended -by special act 78, Acts 1915, applicable to Greene County, to allow commissions for collecting drainage district taxes. Case turns upon meaning of word “revenues.” Could not be collected under general law. Honey v. Greene County, 102 Ark. 106; Haley v. Thompson, 116 Ark. 354; Black v. Special School Bist., 116 Ark. 472. “Revenue” defined. State v. School Fund Commissioners, 4 Kan. 261; Com. v. Bailey, 3 Ky. Law. Rep. 110; U. S. v. Norton, (N. Y.); 2 Caro. Cv. Rep. -358; 7 Words & Phrases, 6208. Case should be affirmed.
   Hart, J.

The only issue raised by this appeal is whether or not R. H. Partain, as tax collector of Greene County, Ark., is entitled to a commission for collecting the drainage taxes or assessments in certain enumerated districts in said county during the year 1921. The drainage districts in question were established under the general law regulating the establishment of such districts.

Sec. 10071 of Crawford & Moses’ Digest is a part of our revenue law providing fees to the tax collector for making collection of the revenue, and reads as follows:

“Said collector shall be allowed commission for collecting the revenue as follows: For the first ten thousand dollars collected, five per cent, in kind; for all sums over ten thousand dollars and under twenty thousand dollars collected, three per cent, in kind; for all sums over twenty thousand dollars collected, two per cent, in-kind.” Act March 31, 1883, par. 120, p. 199.

In Haley v. Thompson, 116 Ark. 354, the court held that, because the general drainage district statutes contain no provision for the payment of any commission to the collector, there is no authority in law for the allowance of a commission to him for collecting drainage assessments. This decision was rendered on January 11, 1915, and the drainage districts in question yrere-organized in -Greene County under our general drainage statutes. The Legislature in session at that time, by an act approved February 24, 1915, amended the sections of the Digest fixing the fees of the circuit and chancery clerk and the county and probate clerk -of Greene County.

The special act also amended § 7072 of Kirby’s Digest, which corresponds with ■§ 10071 of Crawford & Moses’ Digest. The amendment applies only to Greene County,' which reads as' follows: ‘ ‘ Said collector shall he allowed a commission of two per cent, for collecting the revenues.” .Acts of 1915, pp. 261 and 273.

We think the .change in the section from the word “revenue” to “revenues” is significant, and shows that the Legislature intended to allow the collector of taxes a commission for collecting the drainage taxes in Greene County. The section providing for the commission to the collector not only changed it from a sliding scale to a fixed per'cent., but changed the word “revenue” from the singular to the plural. When the act of March 31, 1883, providing fees for the tax collector, was enacted, there was no statute providing for the creation of drainage districts. Our drainage acts were enacted later, and it was made the duty-of the tax collector to collect the assessments, without providing any compensation therefor. Hence he could not charge any commission for the collection of the assessments.

When the amendment was made by the special act above referred to, in 1915, the drainage statutes had been enacted, and it was, under them, the duty of the tax collector to collect the drainage assessments. Our decision in Haley v. Thompson, supra, had just been rendered. Hence the Legislature evidently intended to provide the tax collector a commission for so doing, and changed the word “revenue” to the plural in order to allow him commissions on all taxes and assessments which it was his duty to collect.

Therefore the judgment of the circuit court will be reversed, and the cause remanded for further proceedings according to law.


author: Hart, J.,

text:
    Arkansas Short Leaf Lumber Company v. Lattimore.
    Opinion delivered April 16, 1923.
    1. Master and servant — negligence—question for jury. — Where a lumber company was firing its engine with sawdust and shavings carried through a pipe from the fuel room to the engine through a pipe by suction, and plaintiff, without previous experience, was furnished a lantern to see how to feed the fuel into the suction pipe, and while performing such duty the pile of sawdust and shavings fell and covered him, and contact with the lantern occasioned a fire which severely burned the plaintiff, held that the questions whether plaintiff assumed the risk, and whether the company was negligent in furnishing a lantern and in failing to warn plaintiff of the danger in using same, were for the jury.
    2. Master and servant — negligence—instruction.—An instruction which submitted to the jury the question of the negligence of the defendant in directing the plaintiff to work in its fuel room with a light from a lantern, held proper.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.
    statement op pacts.
    James Lattimore sued the Arkansas Short Leaf Lumber Company to recover damages for injuries sustained by him while working. for said company.
    The plaintiff was a witness for himself. According to his testimony, he had been working for the defendant in Pine Bluff, Ark., for about two years before he was injured. He was second fireman, and worked under Jack Stanley, the heád fireman. The regular work of the plaintiff was the firing of the Dutch ovens. On the night preceding the injury he was ordered to fire the engine for Stanley. A new fuel system had been installed, and he had not worked about this particular place since its installation. There was a fuel bin about 30x30 feet. The fuel was sawdust and shavings, which were brought into the bin from the planer mill. They fell directly in the middle of the fuel bin and spread out until the whole room was filled with a round pile, and they extended to the top of the room in a cone-shaped pile. Tlie new fuel system was called the blow-pipe system, and it was put in in order to make it easier for the sawdust to feed into the suction pipe. Under the blow-pipe system it was only necessary for a man to stand in the fuel room and keep the pipe up close to the fuel. The fuel would be carried through the pipe by suction from the fuel room to the engine. A fork and a pole about 14 feet long were used in raking down the sawdust. If the. sawdust was not raked down from the top with the pole from time to time it would fall down like an avalanche. The building was lighted by electricity. The electric lights.went out about eleven o’clock on the night before the plaintiff was injured, and were not repaired during the night. Stanley gave Lattimore a lantern to use, so that he could see how to feed the blow-pipe with the sawdust and shavings. The first lantern had a piece split out of the globe, and the plaintiff called Stanley’s attention to it. Stanley then gave him his own lantern, which had a good globe. There was an opening in the fuel-room, and the plaintiff hung the lantern up by it and went to work feeding the suction pipe. He worked in this way until about five o’clock the next morning. They kept up 60 pounds of steam all night for the dry-kiln, and at 5 o’clock raised steam for the day’s work. About 15 minutes after 5 o’clock in the morning the pile of sawdust and shavings slipped down on the plaintiff and covered him up. They then came in contact with the lantern, and this caused the dust from the sawdust and shavings to explode, and started a fire in the sawdust which covered the plaintiff. His clothing caught on fire, and he was severely burned before his clothing could be removed and the fire put out.
    The fuel came into the fuel room from the top and fell into the center of it. Practically all of the sawdust and shavings that came from the planing-mill were carried into the fuel room, and it was pretty well filled on the night the accident occurred. Stanley heard the explosion, and immediately went to the fuel room. The flames came out of the door of the fuel room, and Lattimore could not be rescued before he was severely burned. The evidence showed that he suffered great pain for some length of time after he was injured. The electric lights in the mill frequently went out, and a lantern was used to see how to feed the fuel into the suction pipe.
    The jury returned a verdict for the plaintiff in the sum of $750, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      M. Danaher & Palmer Danaher, for appellant.
    No negligence shown by the proof of the acts of negligence charged, and appellee assumed the risk. 56 Ark. 232; 89 Ark. 50; 135 Ark. 563; 147 Ark. 94; 148 Ark. 66. Court erred in giving instruction numbered 1 for appellee, and in not giving appellant’s peremptory instructions requested numbered 1 and 2.

      Taylor <£ Jones, for appellee.
    Negligence was shown in allowing the sawdust to accumulate to unusual height and directing the inexperienced appellant to work there without sufficient instructions, and with only a lantern instead of electric lights— in not furnishing him a safe place to work. 116 Ark. 277; 90 Ark. 223; 117 Ark. 198; 123 Ark. 119; 82 Ark. 555; 105 Ark. 247; 106 Ark. 25; 115 Ark. 380. Eisk not assumed. 110 Ark. 456; 77 Ark. 458; 90 Ark. 407; 116 Ark. 108; 113 Ark. 359. Negligence'Shown. 96 Md. 652, 61 L. E. A. 574; 86 Ark. 244; 129 S. W. (Mo.) 78; 124 Ark. 118. Evidence sufficient to support the verdict. 70 Ark. 136; 65 Ark. 116; 63 Ark. 536; 97 Ark. 86. No error in giving instruction No. 1. 102 Ark. 562; 67 Ark. 209; 90 Ark. 223; 113 Ark. 359. No error in refusing to give peremptory instructions. 91 Ark. 337; 123 Ark. 119.

      M. Da/naher & Palmer Danaher, in reply.
    Appellee was not inexperienced, and no allegation of failure to warn. 73 Ark. 49; 82 Ark. 536. No negligence established in connection with lights being out.
   Hart, J.,

(after stating the facts). Counsel for the defendant insist that the court erred in not instructing a verdict in its favor. They claim that the system of piling the sawdust and shavings in the fuel room and in feeding the same into the suction pipe was the latest improved method of doing it, and also that whatever danger attended the work was obvious to any one of average intelligence, with the plaintiff’s experience in working in the mill. In making this contention counsel for the defendant rely upon the case of Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50, and other cases of like character. In that case a servant of the company was injured by the falling of sacks of meal piled in the customary and best practical method, and the court held that the company was not guilty of negligence. The court further held that a servant engaged in moving sacks of cottonseed meal will be held to have assumed the risk of the sacks falling on him, if the sacks were piled in the usual way, and the danger of them falling down was obvious and was one of the ordinary risks of the work about which he was employed.

If there was nothing in the present case except that the plaintiff was injured by the pile of sawdust and shavings falling down on him while he was feeding them into the suction pipe, the case just cited would apply. The negligence relied upon for a recovery in the present ease is the failure of the defendant to warn the plaintiff of the danger of working in the fuel room with the lantern. It is one thing to say, as a matter of law, that a man of the plaintiff’s experience would know that .the pile of sawdust and shavings would fall down on him if not properly handled, and another thing, to say, as a matter of law, that the danger of doing the same work with a lighted lantern instead of electric lights was also obvious to him. "When the room was lighted by electricity .the only danger that could possibly cause injury would be the fact that the pile of sawdust and shavings would slide down on the plaintiff. He could' guard against this by reason of the room’s being well lighted,- so that he could see when the pile of sawdust was likely.to topple over, and ease its fall by poking it at the top with the long pole. There was an added danger when the work was done with a lantern. In the first place, the dim light would not show the condition of the pile of sawdust and shavings as well as the electric lights. This might cause the pile of sawdust to topple over before the plaintiff could see its insecure condition and avoid the danger. In the next place, if. the pile of sawdust should topple over and come' in contact with the lighted lantern, there would likely be an explosion which would set on fire the sawdust in the fuel room, and thus add a new and unexpected danger to the work.

The jury might have found, under the circumstances, that the failure of the defendant to warn the plaintiff of the new and added danger of feeding the suction pipe in the night time with only a lantern to furnish light was actionable negligence. So there was a question for the jury about the extent of the danger and the consequences of the neglect of the defendant to warn the plaintiff that there was danger of the pile of sawdust falling down and coming in contact with the lantern, thereby causing an explosion which might set fire to the sawdust and burn the plaintiff as well as the property of the defendant. It cannot be said, as a matter of law, that the danger of working in the fuel room at night with a lighted lantern instead of electric lights was an obvious and patent danger to the plaintiff. He liad not been working in this part of the mill .since the installation of the new system, and he had a right to rely, to some extent, on the judgment of the head fireman under whom he was working. He was performing, the work in the manner in which he was directed to perform it by the head fireman, and was injured while doing so. We think, under the circumstances, that there was a question for the jury both of the negligence of the defendant and the assumption of risk by the plaintiff.

It is next insisted that the court erred in giving instruction No. 1, which reads as follows: “If you find from a fair preponderance of the evidence that the plaintiff, James Lattimore, was employed by the defendant, Arkansas Short Leaf Lumber Company, to fire the boiler used to generate steam to operate its machinery, and that, while so employed by defendant, it negligently allowed a large pile of sawdust and shavings to accumulate in the fuel room whore plaintiff was required to work, and that, by reason of said sawdust and shavings being allowed to accumulate in said room in large quantities, it became displaced and fell upon the plaintiff while he was discharging his duty, and said sawdust and shavings were fired by the lantern in plaintiff’s hands, which it was necessary for him to use because of the electric lights of defendant having become extinguished, and said sawdust and shavings became ignited by coming in contact with the lighted lantern furnished plaintiff by the agent of said company, and said shavings covered the plaintiff and set fire to his clothing and burned his body, arms and muscles, as alleged in his complaint, by reason of which burns he suffered great bodily pain and mental anguish, then your verdict will be for plaintiff, and you will.fix his damages at what you may determine, from the evidence,-he is entitled to receive for such bodily pain and mental anguish, according to the instructions given you by the court, not exceeding’ the amount claimed and prayed in plaintiff’s complaint, provided you find that any act complained of constituted negligence on defendant’s part.”

We do not think the instruction was erroneous. It submitted to the jury the question of the negligence of the defendant in directing the plaintiff to work in the fuel room with light from a lantern instead of from electricity. The undisputed evidence shows that the nlaintiff was injured by an explosion caused by the flying dust coming in contact with the lantern. The instruction in terms leaves it to the jury to find whether the defendant was negligent in the premises specified in the instruction or not.

At tlie request of the defendant the court specifically told the jury that it could not find that the defendant was negligent, either because the electric lights went out or because they had not been repaired. As above stated, the negligence of the defendant consisted in sending the plaintiff to work in a fuel room filled with shavings and sawdust with only the light from a lantern, instead of the lights furnished by electricity. The plaintiff might guard against any danger from the falling sawdust if the room was lighted by electricity, and yet be unable to do so by the dim light of a lantern. In the one case he could see all over the fuel room, and in the other the condition of the sawdust would be more or less obscure. Hence we think that the question of the negligence of the defendant and the doctrine of the assumption of risk by the plaintiff were submitted to the jury under proper instructions.

We find no prejudicial error in the record, and the judgment will be affirmed.


text:
    Miles v. Jerry.
    Opinion delivered April 16, 1923.
    1. Acknowledgments — conclusiveness,—Where a grantor appears and makes an acknowledgment .before an officer authorized to take acknowledgments, the recitals of the officer’s certificate, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated.
    2. Acknowledgments — forgery—burden of proof. — Where a married woman did not appear before the officer who certified her acknowledgment to a conveyance of an oil and gas lease of her husband’s homestead, although he may have certified that she did, ■she may show by a preponderance of the evidence that she never acknowledged the deed.
    3. Homestead — joinder of wife in husband’s conveyance. — An oil and gas lease affecting a husband’s homestead is ’ void unless the wife both joins in signing and acknowledges the deed.
    4. Acknowledgment — sufficieny of evidence impeaching. — Chancellor’s finding that an oil and gase lease affecting a husband’s homestead was not acknowledged by the wife held contrary to the preponderance of the evidence.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    A. A. Jerry and Lissie Jerry, husband, and wife, brought this suit in equity against George S. Miles, trustee, to cancel an oil and gas lease executed by them on certain land in Union County, Ark., on the 15th day of July, 1919, and duly filed for record on the 16th day of July, 1919.
    The ground relied upon for a cancellation of the lease is that it was the homestead of plaintiffs, and that the purported acknowledgment of the wife to the lease as certified to by the notary public was a forgery. The suit was defended on the ground that the acknowledgment was genuine, and not a forgery.
    According to the testimony of A. A. Jerry, the land in controversy constituted his homestead, and he resided upon it with his wife at the time the lease in question was executed. W. C. Grace procured him to execute the lease by representing that he would put down a test well for gas and oil. Grace told him that the well would be put down during the next month, or else the lease would be canceled. Grace did not put down a well as he promised to do, and about six months thereafter Jerry asked Grace for a return of the lease, which he refused to do. After a year had elapsed, no development for oil and gas having been made on the land, he instituted this action. His wife, Lissie Jerry, signed the lease because he persuaded her to do so. She did not acknowledge it before W. G. Grace or any one else. The lease was not read over to him, and he would not allow his wife to read it.
    According to the testimony of Lissie Jerry, she was not present when her husband signed and acknowledged the lease. She signed it because her husband persuaded her to do so, and because she was afraid of trouble in the family. She did not acknowledge the lease before W. G. Grace or any one else.
    Elmo Ahrens was a witness for the defendant. According to his testimony, he was with W. G. Grace when the lease in controversy was executed. They first met A. A. Jerry and his wife in the field. They all went from the field to the house, and the lease was signed at the house. Lissie Jerry sat inside of the room, looking out of the front window, at the time she acknowledged the lease. She had already signed the lease down in the field. The witness was sitting just outside the window, and knew that Lissie Jerry acknowledged the lease.
    According to the testimony of W. G. Grace, he was the notary public who took the acknowledgment of Lissie Jerry to the lease in controversy. Jerry and his wife agreed to execute the lease down in their field. They all then went up to the house, and Grace filled out the leas'e. Jerry first executed it, and then Grace went into the house, where Lissie Jerry signed and acknowledged the lease. Within a year after the lease was executed a well was started and drilled 2,780 feet deep within a mile and a half of the land in controversy. Grace did not agree with plaintiffs that a well would be drilled on their land, but told them that, if he obtained sufficient acreage, a well would be drilled in the neighborhood. Other evidence will be stated or referred to in the opinion.
    The chancellor found in favor of the plaintiffs, and it was decreed that the lease should be canceled as a cloud upon their title.
    The defendant has duly prosecuted an appeal to this court.

      Powell S Smead and Jordan Sellers, for appellant.
    Every question raised here except that relative to lack of acknowledgment is settled by the decision in 145 Ark. 310. Proof not sufficient to show lease not acknowledged by wife. 69 111. 699; 65 111. 505; 103 U. S. 548; 97 IT. S. 624; 109 IT. S. 573; 55 Md. 231 ; 147 Mo. 633; 11 Ohio St. 212; 149 N. Y. 71; 38 Ark. 278. Court departed from the beaten trail in 117 Ark. 321. Cases where there was .some form of 'acknowledgment. 38 Ark. 377; 41 Ark. 421; 45 Ark. 117; 96 Ark.- 564; 104 Ark. 226. Court appears to have realized unsoundness of decision in 117 Ark. 321, for, after following it in 130 Ark. 212 and lb. 448, in 147 Ark. 184 it goes back to the rule requiring “clear, cogent and convincing” evidence. Burden of proof on one denying execution of instrument, and great weight is given to officers’ certificate of acknowledgment. 130 Ark. 312; 117 Ark. 321; 9 Col. 597; 65 111. 505; 86 111. 1; 142 111. 160; 43 Mich. 208; 11 Wyo. 200; 42 N. Y. Supp. 834; 52 S. W. (Tenn.) 900; 122 Iowa 297; 182 El. 341; 55 Md. 231; 149 N. Y. 71.

      Jesse B. Moore, for appellee.
    Decree not against preponderance of the testimony. Counsel for appellants unable to grasp the well-defined and recognized difference in kind and weight of evidence required to -sustain allegations of fraud and forgery of acknowledgment where none has been made-, as here, and those oases where some sort of acknowledgment has been made. 117 Ark. 321; 37 Ark. 145; 38 Ark. 377; 41 Ark. 421; 45 Ark. 117; 96 Ark. 564; 104 Ark. 226; 130 Ark. 312; 147 Ark. 181; 130 Ark. 448.
   Hart, J.,

(after stating the facts). According to the allegations of the complaint, Lissie Jerry, the wife of A. A. Jerry, never acknowledged the lease before W. G. Grace, a notary public, or any other officer. Oral evidence was introduced to overcome the certificate of acknowledgment, and counsel for the defendant contend that, in order to overcome the certificate of acknowledgment, the evidence must be clear and convincing beyond reasonable controversy. They have cited authorities in support of their contention; but we do not deem it necessary to discuss or to review them, for the question has already been settled by this court.

In the case of Polk v. Brown, 117 Ark. 321, the court held that the burden of proof rests upon the person denying that he signed a deed or acknowledged it to show the falsity of the certificate of acknowledgment; but that the weight of the evidence should not he affected by any particular rule peculiar to the subject. The holding in this ease has been followed in Nevada County Bank v. Gee, 130 Ark. 312, and Straughan v. Bennett, 153 Ark. 254.

Counsel for the plaintiffs admit this to be true, but contend that these cases are contrary to the ruling in our earlier cases on the subject, and insist that they be overruled. We cannot agree with counsel in their contention. This court has uniformly held that where a grantor appears and makes some kind of acknowledgment before an officer authorized by law to take such acknowledgment, the recitals of the certificate of such officer, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. Bell v. Castleberry, 96 Ark. 564.

A different question presents itself in the case of a certificate of acknowledgment alleged to have been forged. A proper acknowledgment is an essential part of the execution of a conveyance of land, and it is competent for the grantor to show the falsity of a certificate of acknowledgment. Where the- grantor never appears before an officer to acknowledge the deed and the officer makes a false certificate that the grantor did appear, his act is wholly without authority of law, and void. Every one must be subject to the risk of forgery by officers authorized to take acknowledgments. No one can claim that an estate in land should be divested by forgery, and the forgery need only be established by a preponderance of the evidence. This rule was recognized in Watson v. Billings, 38 Ark. 278, and Meyer v. Gossett, 38 Ark. 377.

In the first mentioned of these cases the court held that an officer’s certificate of the grantor’s acknowledgment of the execution of a deed is not evidence of the execution unless the deed and certificate have been filed for record. In that case a suit for dower was defended on the ground that dower had been duly relinquished during the husband’s lifetime, and that therefore the widow was not entitled to dower. The widow testified positively that she did not sign the release of. dower and acknowledge it. The justice was equally positive that she did. The deed had not been filed for record. Hence the court held that the burden was on the defendant to show that the widow had relinquished dower. The court seems to have decided the case on the preponderance of the evidence, and nothing was said about requiring it to be clear and convincing.

In the last mentioned case the facts were different. The deed had been filed for record, and the wife admitted that she had signed the deed and had gone with her husband to the house of the justice of the peace for the purpose of acknowledging it. She stated, however, that the justice asked her no questions and did not examine her apart from her husband. The chancellor •found, as recited in the decree, that her acknowledgment was taken by the justice without making the privy examination in the absence of her husband, as required by law. The chancellor did not find that the wife did not acknowledge the deed at all. Hence it was a case of a defective acknowledgment. The wife actually appeared before the justice of the peace for the purpose of acknowledging the deed. Her husband was with her, and handed the deed to the justice, saying that he and his wife had come to acknowledge it. Under these circumstances the court properly held that there was an acknowledgment by the wife, defective though it may have been. Hence the case called for the application of the rule that the testimony to overcome the certificate of acknowledgment must have been clear and convincing.

It is easy to procure an appointment as notary. The notary’s certificate entitles the instrument to registration, and land titles would be insecure if the owner was required to prove by clear and convincing evidence that the instrument was a forgery. The deed having been registered, the burden of proof was upon the party seeking to impeach the certificate -of acknowledgment. Where the wife does not -appear before the officer at all to acknowledge the deed, although he may certify that she did, she may show that she did not appear and acknowledge the deed, and thus show that the instrument is not genuine.

This brings us to a consideration of the question of whether or not the forgery of the acknowledgment has been established by a preponderance of the evidence.

We think that the learned chancellor erred in holding that the plaintiffs made out their case. It is true that both the husband and the wife testified in positive terms that she. did not acknowledge the lease. They both admitted, however, that she signed it, and seek to avoid it on the ground that she did not acknowledge it. In this connection it may be stated that, under our statute, no conveyance or other instrument affecting the homestead shall be of any validity, except in certain enumerated cases, unless the wife joins in the execution of the instrument and acknowledges it. Sec. 5542 of Crawford & Moses’Digest.

It does not appear from the record whether or not the plaintiffs knew that the lease on their homestead could not be effective unless the wife acknowledged it; but it does appear that they knew that the notary carried the lease away with him after they say the wife refused to acknowledge it. It was duly filed for record the next day, and no explanation is offered by the plaintiffs why they waited for a year for the defendant to begin work on the lease if they knew that the lease was void because the wife had not acknowledged it. Hence it will be seen that their testimony is not in all respects consistent.

As we have already seen, the burden of proof was upon them to show the falsity of the certificate, which carried with it the presumption that the officer making it had certified to the truth and was not guilty of forgery. In addition to the prima facie case made by the certificate of acknowledgment, we have the positive testimony of the notary and of another person accompanying him that the wife did acknowledge the lease.

An attempt is made to contradict their testimony by showing that there ivas no window opening on the gallery, and that therefore the testimony of one of the witnesses was false when he stated that he was on the gallery and heard the wife acknowledge the execution of the lease in the house through the window. The apparent contradiction is immaterial, for it may have been that he heard her through the open door. The material point is that both of them testified in positive terms that the wife did acknowledge the lease. She admits that she signed it- at the request of her husband, and permitted them to carry the lease away without protest. The delay in bringing suit is inconsistent with the testimony of the plaintiffs to the effect that the wife absolutely refused to acknowledge the lease after signing it.

"When all the attending circumstances are considered, we think that the chancellor erred in holding that the testimony of the plaintiffs was sufficient to show that the lease had not been acknowledged by the wife, and that the certificate of acknowledgment was therefore a forgery.

It follows that the decree will he reversed and the cause remanded, with directions to dismiss the complaint for want of equity.


author: Smith, J.

text:
    Pyburn v. Campbell.
    Opinion delivered April 16, 1923.
    1. Taxation — effect of redemption from forfeiture. — Redemption of land by the owner from a tax forfeiture, under Crawford & Moses’ Dig-., § 6741, does not constitute color of title, and is in effect a mere payment of taxes.
    2. Boundaries — incorporated town. — Where one owning- two adjoining forty-acre tracts petitioned the county court to lay off a town on the north forty, but the town as actually laid off under his directions extended over into the south forty, though the plat as filed showed the town to lie wholly within the north forty, held that the lines as run are controlling as against the plat, and a description in a deed of the land by blocks, either in a private sale or in a sale for taxes, will convey the blocks actually surveyed.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Emerson, Donham & Shepherd, for appellant.
    Appellant had ¡color of title to the blocks of land and had paid taxes thereon for 25 years, and decree should have allowed him all claimed. 132 Ark. 11; 47 Ark. 521; 102 U. S. 461. His deed was from the Land Commissioner, made under authority of § 6663, C. & M. Digest; 94 Ark. 316. Appellant was either in possession or the property was unimproved and uninclosed, and payment of taxes gave him title by adverse possession, under provisions of § 6943, Crawford & Moses’ Digest. Court also erred in not holding that possession of part of the property conveyed was, in law, possession of all. 135 Ark. 321; 1 R. C. L. 728; 83 Ark. 377; 149 Ark. 189. Appellant also had an older constructive possession than appellee. His deed was issued and recorded in December, 1895, while appellee’s was not issued till 1898 and recorded in 1910. 38 Ala. 44; 1 Century Digest, Col. 240, 1 R. C. L. 730. Appellee had long recognized the line a-s actually surveyed ■and established when the town was laid out as the true boundary line. Redemption deed not color of title. Appellee did not purchase the land under § 6661, C. & M. Digest, but instead claimed to be the owner, and redeemed it. 67 Ark. 184. Having no color of title, payment of taxes for any number of years avails nothing, nor does possession of part of a tract of land extend to the entire tract when it is not held under color of title. Description in redemption deed insufficient. Bu-chanan v. Pemberton, 143 Ark. 92. Decree should be reversed and appellant’s title quieted.

      Isgrig $ Billon, for appellee:
    Chancellor correctly held that lots and blocks of land claimed by appellant were not included in 40-acre tract owned by appellee. Not presumed that more territory was included in the town than that which was clearly intended to be included. 10 L. R. A. 673; 9 L. it. A. 107; 120 S. W. 923. Petition for incorporation of town sets ont accurately property to be embraced, and none of 40 claimed by appellee was included. 188 Ark. 52. Appellant must succeed upon the strength of his own title. 82 Ark. 294. Williams’ testimony is incompetent, as it contradicts the record. 90 Ark. 149. Appellee has occupied the lands under redemption deed to his father since 1898, and paid the taxes thereon continuously, and, under § 6943, C. & M. Digest, his title should have been confirmed. 1 R. C. L. 711.

      Emerson, Don-ham $ Shepherd, in reply.
    Declaration of owner as to land included properly shown. 10 L. R. A. 673. 90 Ark. 149 not applicable to facts of this case-. Redemption deed not color of title. 133 Ark. 441.
   Smith, J.

In 1881 G-. N. Perkins and other citizens of Saline County petitioned the county court of that county to incorporate the town of Woodson and to establish its boundaries in accordance with the prayer of the petition and a plat of the proposed survey attached to the petition. According to the petition and the plat, the town was to be located in the northeast quarter of the southeast quarter of section 20, township 2 south, range 11 west; but it appears that when the actual survey was made under the directions of Perkins, who owned the forty-acre tract described, and also the southeast quarter of the southeast quarter of the same section, it was discovered that the railroad running through both forty-acre tracts did not run due north and south through them, although the plat of the town indicates that it does run due north and south.

One Williams testified that he was present and assisted the county surveyor in laying off the town into lots and blocks, and Perkins directed the town to be laid off in a square facing the railroad, and this was done. Perkins stated at the time that it made no difference if the survey of the town ran over into the south forty acres, as lie owned them both, and it is admitted that he did own both tracts. The effect of so doing was to make the south line of the boundary run over into the southeast quarter of the southeast quarter so that the southern tier of blocks lie partly in one forty-acre tract and partly in the other, although the plat indicates that they lie entirely in the north forty. Iron stobs were put down to mark the corners of this survey, and they are still in place.

After this litigation arose, appellant, who was the plaintiff below, employed a surveyor to make a survey of the town, and there appears to be no question but that the town, as surveyed originally under the directions of Perkins, lies partly in both forty-acre tracts, although, as stated, the plat of the town shows that it lies entirely in the northeast quarter of the southeast quarter. Blocks 13, 14 and 15 are located on the south line of the survey, and are therefore bisected by the line between the two forties.

. These blocks 13, 14 and 15 were sold to the State in 1893 for the nonpayment of the taxes for 1892, and appellant bought them from the State by deed for forfeited town lots, his deed being dated December 2, 1895. Appellant commenced paying taxes on these blocks in 1896, and has paid the taxes continuously since. Upon getting his deed he entered into the actual possession of block 15, built his home thereon, and inclosed a part of the block, and has resided there since. Appellant’s purchase of these blocks was made pursuant to section 6661, C. & M. Digest.

The southeast quarter of the southeast quarter of this section was forfeited to the State in 1894 on account of nonpayment of taxes for the year 1893, and on August 14, 1898, John Campbell, the ancestor óf appellee, obtained a redemption deed from the State. This deed was obtained under the provisions of section 6741, C. & M. Digest (act March 7, 1895) upon a showing that he was the owner thereof, upon the payment of $5.11, this being the amount of the taxes, penalty, interest, and costs.

The court held that appellant’s deed from the State did not constitute color of title, and denied the prayer of the complaint, which was that the title he quieted except as to the particular portion of block 15 which appellant had inclosed and occupied; and, upon the answer and cross-complaint of appellee, quieted appellee’s title to the southeast quarter of the southeast quarter of the section.

It is insisted that the court should have excluded the testimony of Williams, in which he stated the directions given to the surveyor by Perkins when the town was laid off. But we think no error was committed in admitting it. If Williams heard Perkins give the directions to the surveyor, there could be no objection to his repeating that statement, as it does show a conscious purpose on the part of the owner to lay off the town in the manner in which this was actually done. It appears to be a physical fact, established by an actual survey which is unquestioned, that the town as it was originally surveyed lies in both forty-acre tracts of land. Lots were sold under the descriptions contained in the plat, but the actual survey would govern over the plat thereof. It is a well settled rule of surveying, recognized by the courts, that the lines actually run control over maps, plats, or field notes. Page 537, Clark on -Surveys and Boundaries. The actual survey originally made is evidenced by the fixed boundaries then established, and the actual survey must therefore govern over the erroneous plat thereof.

There were streets in the town as platted, and the exterior lines of the blocks form the boundaries of these streets. There was a dedication of these streets formally and actually, and the plat was intended to evidence that dedication and the location of the streets, and it does so correctly, except that the south line of the northeast quarter of the southeast quarter is shown on the plat to be the south line of the southern tier of blocks, when such is not the case.

It is true also that the petition for the incorporation of the town and the order of the court granting the prayer thereof do not include any part of the southeast quarter of the southeast quarter of the section, but the order incorporates into the town of Woodson the lands shown on the plat thereof, and the land thus included extends over into the southeast quarter of the southeast quarter, for, as we have said, the line as actually surveyed must be taken as the correct southern boundary of the blocks.

Under this view, the description of any particular block as a block in the town of Woodson becomes definite and certain, but it can only be definite and certain by conforming the boundaries to the actual survey thereof. Otherwise, hopeless confusion would result.

The description contained in the deed to appellant from the State is therefore sufficient to pass the title, not only in a private sale but in a sale for taxes, and the blocks conveyed are the blocks actually surveyed.

It follows therefore that appellant’s deed is at least color of title, and, as no showing was made against the tax sale on which it was based, it presumptively conveyed the title to appellant. Moreover, appellant has paid the taxes continuously since 1896 on all three blocks, so that, as to any part of the land of which he has not had actual possession, he has, for many years, had color of title at least, and has paid taxes thereon continuously for twenty-five years.

Appellee has never had actual possession of any part of the blocks in litigation, and the redemption deed of his ancestor from the State to the southeast quarter of the southeast quarter is in effect a mere payment of taxes made pursuant to § 6741, C. & M. Digest, which permits redemption by the owner, and this redemption deed does not purport to convey title. Possession under a redemption deed evidencing such redemption will not therefore be extended, constructively or otherwise, to cover the blocks in litigation.

For these reasons we think appellant’s title should have been quieted, and the decree will be reversed and the cause remanded, with directions to enter a decree granting that relief.


text:
    Williams v. Robinson.
    Opinion delivered April 16, 1923.
    1. Master and servant — wrongful discharge op servant — damages. — In a suit by a servant to recover damages for a wrongful discharge, an instruction which told the jury that if they found that plaintiff was entitled to recover she should recover the whole of the wages due her by the terms of the contract, less what she had an opportunity to earn by like services after her dismissal, was correct, as she was not required to seek or accept employment of a different character.
    2. Master and servant — wrongful discharge — instruction.—In a suit by a servant to recover damages for a wrongful discharge before the term of employment expired, an instruction that plaintiff was .entitled to recover money expended for failroad fare and hotel bills in coming to perform the contract was erroneous where there was no agreement to pay such expense; but such error was harmless where the verdict awarded the plaintiff a smaller sum than she was entitled to, under the undisputed testimony, if she was entitled to recover at all.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      H. L. Pearson and John Mayes, for appellant.
    Court erred in giving instructions 1 and 3 requested by appellee. “Like” ,as used in No. 1 defined. Webster. 79 N. C. 372; 127 Mass. 452. Incumbent on appellee to seek employment in any line of work she was qualified to perform. 64 Ala. 299; 68 Ala. 66; 39 ¡N. Y. 129; 61 N. Y. 362; 79 N. C. 106; 44 Ohio 226; 1 Sutherland on Damages, § 88; 17 Md. 419; 67 Maine 64; 31 Ind. 241; 33 Texas 714. Not entitled to recover railroad fare, as instruction 3 erroneously told the jury to allow.

      Chew & Ford, for appellee.
    Instruction numbered 1 correctly told the jury that appellee was only required to seek or perform like service after her wrongful discharge. 39 Ark. 280; 116 U. S. 398; 58 Ark. 623; 9 Ark. 394; 63 Barb. 177; Wood on Master and Servant, 250; 2 Sutherland on Damages, § 693. No error committed in giving instruction numbered 3.
   Smith, J.

Appellee alleged that she was employed by appellants to take charge of their kitchen and to do all the baking and to make salads, at the summer hotel which appellants ran at Winslow, Arkansas. The contract was made by letters exchanged between the parties, and these very clearly establish an agreement on the part of appellants to pay appellee $25 per week during the “season.” At the time the parties began to correspond appellee resided in Amarillo, Texas, and it was necessary, of course, for her to report to Winslow to perform her duties under the contract; but there is nothing in the correspondence to obligate appellants to pay appellee anything except $25 per week for her services. Appellee was discharged July 9th, and the season for summer visitors closed September 14th, so there was a period of nine weeks and four days during which appellee was not furnished employment under the contract. The compensation for this time, at $25 per week, is $239.28.

Appellants admit that they discharged appellee, but say they did so rightfully. This issue of fact was submitted to the jury under instructions which told the jury there could be no recovery if appellee had given appellants cause to discharge her, and that question is, of course, settled by the verdict of the jury.

Over appellants’ objection, an instruction was given in which the jury was told that if they found appellee was entitled to recover, she should recover the whole of the wages due her by the terms of the contract, less what she had an opportunity to earn by like services after her dismissal. The objection to the instruction was that the jury was required to take into account only such sum as appellee might have earned 'by like services, appellant having testified that they had offered appellee other employment at $10 per week. This employment was in a more menial capacity, and appellee declined to accept it. This she had the right to do. It was her duty to seek and accept other like employment, but she was not required to seek or accept employment of a different character, and the instruction therefore correctly declared the law. Van Winkle v. Satterfield, 58 Ark. 623; Sweet v. McEwen, 140 Ark. 162.

Appellee testified that she sought similar employment but could not obtain it, but that she did obtain employment for 5% days as a waitress at a cafe, and also secured 16 days’ employment as a nurse at a dollar per day, but that she was unable to obtain any other employment except that offered by appellant.

Over appellant’s objection the court told the jury that, if appellee expended money for railroad fare and hotel bills in her journey from Amarillo to Winslow to perform the contract, at the instance and request of the defendants, to include the sum so expended, if they found for the plaintiff.

Appellee testified that she expended $21.48 coming to Winslow, and it was, of course, a necessary expenditure to enable her to perform the service specified in the contract, but there is nothing in the contract which obligated appellants to pay this expense. Their agreement was to pay $25 per week, and they cannot be held liable for an expense which appellee had to incur to earn this money, in the absence of an agreement to pay that expense.

The instruction, while erroneous, does not appear to have been prejudicial, for the following reasons. Under the jury’s verdict, upon the question of appellants’ right to discharge, appellee would have been entitled to $239.28, less all credits. Appellee was not required to accept employment as a Waitress or as • a nurse, but she did so, and the $21.50 thus earned is to be credited upon her recovery. Assuming that the jury, under the erroneous instruction, allowed the item of $21.48, it, too, must be deducted to render the. instruction nonprejudicial. These two items, total $42.98; but when that total has been deducted from the $239.28 there remains $196.30, for which the verdict should have been rendered, whereas the verdict returned was for only $180. The jury may have thoug’ht that some credit should be allowed on account, of appellee’s failure to accept the refused employment, notwithstanding the court’s instruction to the contrary.

At any rate, after appellants are allowed all the credits which they could claim under the testimony, there remains due appellee a sum in excess of the jury’s verdict, if it be assumed that she was wrongfully discharged, and,' as we have said, that question is concluded by the verdict of the jury.

The erroneous instruction appears therefore not to have been prejudicial, and the judgment is affirmed.