author: Hart, J.

text:
    Glenn v. Union Bank & Trust Company.
    Opinion delivered October 3, 1921.
    1. Principal and surety- — requiring creditor to sue. — U-nder Crawford & Moses’ Dig. § 8287, 8288, providing that a surety on a note, after action accrued thereon, may in writing require the person having the right of action forthwith to sue the principal, and that if such suit be not commenced within thirty days after service of the notice the surety shall be exonerated from liability, a written notice to the creditor advising him to bring suit, but not requiring him to do so, is insufficient.
    2. Contracts — novation.—Parties to a written contract may, subsequent to its execution, rescind it in part or m toto and substitute a new oral agreement therefor.
    S. - Principal and surety — release.—Release of a surety by the creditor in consideration of the debtor furnishing additional security held binding.
    4. Pleading — sufficiency of answer. — In an action against a surety on a note, an answer alleging a new contract whereby the bank holding the note in consideration of the principal debtor’s assignment of a claim against the United States released the surety from liability was sufficient, though it did not allege that the president of the bank had authority to make the contract; such authority being a matter of evidence.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;

    reversed.
    statement oe facts.
    The Union Bank & Trust Company sued E. H. Glenn to recover the sum of $1,390 alleged to he due plaintiff on a promissory note executed by the defendant and others.

      As a defense to the action the defendant stated that he had signed said note as surety for J. C. Sheperd and J. R. Wilson, who were the principals, and that after the note became due he wrote and mailed to the bank the following letter or notice:
    “Denver, Col., June 10,1920.
    “C. D. Metcalf, Batesville, Ark.
    “Dear Charley: I am just in receipt of yours of the 7th relative to the Sheperd and. Wilson note.
    “My advice would be for you to take the legal steps to collect the debt, advertise and sell the truck, etc., applying that on the debt, and getting a judgment for the balance.”
    We quote from the answer of the defendant another paragraph, as follows:
    “Further answering plaintiff’s complaint, defendant says that on the 4th day of August, 1919, his co-defendant, J. C. Sheperd, made an assignment of his ‘war minerals claim’ against the government of the United States, under the ‘War Minerals'Relief Act,’ which assignment was in writing, and that in consideration of said assignment being made, and to secure further loans from plaintiff bank, it was agreed between the defendant, Sheperd, the defendant, E. H. Glenn, and D. D. Adams as president of said bank, that this defendant should and would be released from all liability on said note aforesaid.”
    The plaintiff filed a demurrer to these two paragraphs of the answer, which was sustained by the court. The defendant refused to plead further, and, upon final judgment being entered against him on the demurrer, duly prosecuted an appeal to this court.

      W. M. Thompson, for appellant.
    1. Appellant had the right under the law to require the appellee to bring suit against the principal debtor. C. & M. Dig. § 8287. The statute must be strictly construed. 82 Ark. 407; 124Z¿.48; 127 Z¿. 462; 128 Id. 221. If, after notice by the surety in writing to the creditor to sue the principal debtor, the. creditor fails to bring suit within thirty days, the surety is discharged. 48 Ark. 254; 82 Id. 407; 124 Id. 48. The statute does not prescribe any form of notice; therefore, substantial compliance is sufficient. 124 Ark. 48; 29'Id. 579.
    2. The court erred in sustaining the demurrer to the second paragraph of the amended answer. The consideration for releasing the surety by the bank, on the assignment of the war claim, was sufficient under the facts set out in the second paragraph. An oral release from the terms of a written contract is binding. 94 Ark. 165. See also, as to consideration, 112 Ark. 503; 75 Id. 360; 34 N. J. L. 54; 2 Met. 283; 12 L. it. A. 463; 5 Id. 856; 43 U. S., 2 How. 426, 11 Law. Ed. 326.

      Samuel M. Casey, for appellee.
    1. The notice in the form of a letter advising appellee to “take the legal steps to collect the debt” was not a compliance with the requirements of the statute. C. & M. Dig. § 8287. It should be strictly construed. 82 Ark. 247; Id. 207; 113 Id. 198. A mere failure to sue a surety on a note or to enforce collateral security is no' defense to the surety. 50 Ark. 229; 74 Id. 241; 88 Id. 108; 128 Id. 222; 35 Id. 469.
    2. The second paragraph to which the demurrer was sustained fails to show any consideration to appellee for releasing appellant. 52 Ark. 174; 136 Id. 204. The purported agreement to release the appellant as surety was not such a contract as the president of the bank would be authorized to make, unless he was acting by authority of the board of directors. 62 Ark. 33; C. & M. Dig. § 683. The payment of a sum of money by one who is legally bound to pay the same is not a valid consideration for a contract.
   Hart, J.

(after stating the facts). It is insisted by counsel for the defendant that the court erred in sustaining the demurrer to the first paragraph of his answer because he notified the plaintiff after the note became due to sue the principal on the note forthwith,and that,the bank not having brought the suit within thirty days after the notice was given, the defendant is exonerated from liability on the note under the statute.

Section 8287 of Crawford & Moses’ Digest requires that a surety on a note in order to exonerate himself from liability shall, after the note becomes due, by a notice in writing, require the person having the right of action to forthwith commence suit against the principal debtor and other party liable. The following section provides that, if such suit 'be not commenced within thirty days after the service of the notice, the surety shall be exonerated from liability to the person notified.

In Wilson v. White, 82 Ark. 407, the court held that the statute, being in derogation of the contractual rights of the parties, must be strictly complied with by the surety before he can claim exoneration from liability on the obligation sued on.

Under the language of the statute the requirement to sue must be unconditional. It contemplates a peremptory requirement of the surety to the creditor to commence suit forthwith.

The notice in the present case is advisory merely. The language is, “My advice would be for you to take legal steps to collect the debt # * * and getting judgment for the balance.” The surety only advises the creditor to bring suit. The notice does not contain a demand or requirement for the creditor forthwith to commence suit. Not having shown a clear requirement or demand to the creditor to institute suit forthwith upon the note, the notice is insufficient because it is merely advisory, or at most a request to collect from the principal, and, if he fails to do so, to bring suit.

This view of the statute is taken in the early case of Bates & Hughes v. State Bank, 7 Ark. 394. In that case the surety gave notice to and requested the bank “to put the obligation in a train of collection,”.and the court held that the notice was not sufficient under the statute. The court said that the statute gave the surety the right to require the plaintiff to commence suit forthwith, but that, if he wished to exonerate himself from liability, he must give such notice as to leave no option with the plaintiff. To the same effect see 32 Cyc. 104; Baker v. Kellogg, 29 Ohio St. Rep. 663; Rice v. Simpson, 9 Heisk. (Tenn.) 809; Parrish v. Gray, Humph. (Tenn.) 87; Kennedy v. Falde (Dak.), 29 N. W. 667; Benge v. Eversole (Ky.), 160 S. W. 911, and Edmonson v. Potts (Va.), 21 Ann. Cas. 1365.

It is also contended that the judgment should be reversed because the court erred in sustaining a demurrer to the second paragraph of the answer, and in this contention we think counsel for the defendant is correct.

Counsel for the plaintiff seeks to uphold the judgment on the rule laid down in Smith v. Spradlin, 136 Ark. 204, and cases cited, to the effect that th@ payment of a sum of money by one who is already legally bound to pay the same is not a valid consideration for a contract. Counsel claims that, inasmuch as the defendant was already bound to pay the note, there was no consideration for the contract whereby he was released from the payment of it, and that the case calls for the application of the well-known rule just announced. We do not think, however, that the rule contended for has any application to the facts of the present case. According to the allegation of the answer, the parties entered into a new contract with essentially different terms and imposing additional obligations upon the bank and the principal debtor.

In Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, the court held that the parties to a written contract may, subsequent to its execution, rescind it in part, or in whole, and substitute a new oral agreement therefor. Hence the parties had a right to make the new agreement. According to the allegations of the answer, which must be taken as true on demurrer, J. C. Sheperd, the principal debtor, made an assignment in writing of his war minerals claim against the United States to the bank, and it was agreed between Sheperd, the principal debtor, Glenn, the surety, and the cashier of the bank that the surety should be released from liability on the note.

The assignment of JjSheperd’s claim against the United States to the bank constituted additional security to the bank. The bank had the right to accept this new security in lieu of the surety, and its action in doing so was sufficient consideration for making the new contract. The president of the bank doubtless thought that the assignment of Sheperd’s claim against the United States was better security for- the bank than the signature of Glenn to the note, and for that reason máde the contract. In any event he had the right to make the agreement with Sheperd and Glenn that the latter should be released from liability on the note in consideration that Sheperd would assign his claim against the United States to the bank. See Kilgore Lumber Co. v. Thomas, 98 Ark. 219, and Phoenix Cement Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22.

It is also insisted that the demurrer to the answer should have been sustained because the answer does not allege that the president of the bank had authority to make the contract in question. The authority of the president to make the contract would come up upon the proof in the case, and was not required to be alleged in the answer.

For the error in sustaining the demurrer to the second paragraph of the answer, the judgment must be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas v. Thomas.
    Opinion delivered October 3, 1921.
    1. Courts — operation and effect of opinions — Every decision must be construed with reference to the facts of the' particular case.

      2. Courts — appeal prom probate court. — Where the record on appeal from the probate' to the circuit court shows that an affidavit for appeal was filed in the probate court while that court was in session, and that the judge marked on the petition “examined and approved,” and signed the same as judge, this was a sufficient compliance with the statute in regard to taking appeals, (Crawford & Moses’ Dig. § 2258), though the record fails to show that the appeal was granted. 4
    3. Appeal and error — conclusiveness of circuit court’s findings. —Findings of fact made by a circuit court are as conclusive as the verdict of a jury, and will not be disturbed on appeal unless the evidence is legally insufficient to support them.
    4. Marriage — how proved. — Marriage may be proved in civil cases by reputation, by the declarations and conduct of the parties, and by other circumstances usually accompanying that relation.
    5. Courts — jurisdiction op probate court. — The probate court, in the exercise of its jurisdiction to administer the estates of decedents, is authorized to determine what property belongs to the estate.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This suit originated in the probate court of Ashley County, Arkansas.
    Alsie Thomas filed a petition in that court asking to be appointed administratrix of the estate of James Thomas, deceased, and for dower in his estate. She alleged that James Thomas died in Ashley County, Arkansas, on the 9th of January, 1920, owning a valuable farm of 160 acres and considerable personal property; that she was the lawful widow of James Thomas and resided with him on his farm at the time of his death, and that they owned certain personal property in common.
    James Thomas had no children, and his brothers and sisters became parties to the proceeding, and they denied that Alsie Thomas had ever been legally married to James Thomas, and that she had any interest in his estate as widow or otherwise.
    The probate court found the issues against Alsw Thomas, and rendered judgment dismissing her petition. The case was tried de novo in the circuit court, where the issues were found in favor of Alsie Thomas. The case was tried before the circuit court sitting as a jury, and the court found that Alsie Thomas had. legally married, James Thomas, and was entitled to dower in his estate. Letters of administration were granted to her, and she was given a share in certain personal property in addition to her dower.
    Judgment was rendered in accordance with the findings of the court, and to reverse that judgment this appeal has been prosecuted.

      John Baxter, G. P. George and Compere & Compere, for appellants.
    No order of appeal was made by the probate court, and this appeal should be dismissed. The order “examined and approved” is no order of appeal, and no presumption can be indulged in its favor. 65 Ark. 419. The filing of an affidavit is not a compliance with statute requiring an order of appeal. 181 S. W. 287; 126 Ark. 211.
    The question of jurisdiction can be raised for the first time in the Supreme Court. 170 S. W. 221.
    The circuit court on appeal was without jurisdiction to try the title to personal property, which it adjudged to appellee, as the probate court had no such jurisdiction. 116 Ark. 350. There is no presumption that the probate court had jurisdiction. 185 S. W. 796. The pleadings did not put into issue the title to the personal property. The decree was without the issue, 87 Ark. 210, and, the title to the personal property not being involved, any judgment relating thereto is void. 76 Ark. 152; 90 Ark. 196.
    The law presumes marriage and not concubinage, but such presumption is rebuttable. 18 R. C. L. 424-425, 433; 26 Cy. (877, 886, 889.
    The weight of the evidence shows that there was no legal marriage, and appellee is not entitled to dower. 82 Ark. 76; 88 Ark. 196.

      The general and special findings are inconsistent, and the former controls the latter. C. &' M. Dig. § 1304. The same is true as to findings of fact by trial judge or jury. 84 Ark. 359.

      ü. J. Gone, for appellee.
    The affidavit for appeal required by Sec. 2258 C. & M. Digest, was properly made, and the “approval” thereon of the judge could only mean one thing — that which was asked for — an appeal granted. 29 Cyc. 15141; 4 C. J. 1462. The appeal in the instant case meets the requirements in 93 Ark. 263 and is not contrary to 95 Ark. 148; 104 Ark.. 113; 138 Ark. 131, and 140 Ark. 331.
    The marriage is established by competent evidence.. 26 Cyc. 886. There is always a presumption of a valid marriage, and the proof of such in this case is stronger than that in 82 Ark. 76. See also 1 Bishop, Marriage & Divorce, § 77. General repute in the community is admissible on the question. 26 Cyc. 872, 888; 32 Ark. 205; 15 L. R. A. (N. S.) 190; 28 Ark. 19; 131 Ark. 221; 15 Ark. 555 at p. 605. The burden of proving the invalidity, or the fact of no marriage at all, rests upon the attacking party. 121 Ark. 361; 34 Ark. 518; 67 Ark. 281.
    Without the aid of Attorney Compere’s testimony the testimony of Mrs. Herring was incompetent. His testimony was incompetent and against the “communications rule.” 40 Cyc. 2366.

      John Baxter, G. P. George, Jos. F. Wallace, Compere & Compere, for appellants, in reply.
    The oases cited by appellee to sustain his contention that the appeal was properly taken do not do so.
    The testimony of Thos. Compere, attorney, was competent. 220 S. W. 677; 9 A. L. R. 1076; 183 ICy. 679; 211 S. W. 441; 5 A. L. R. 972.
   Hart, J.

(after stating the facts). It is first earnestly insisted by counsel for appellants that the circuit court was without jurisdiction to try the case, and for that reason the appeal should be dismissed. No motion was filed or presented in the circuit court to dismiss the appeal from the probate court for want of jurisdiction, and the question of jurisdiction in the circuit court to try the case is raised here for the first time.

The record of the proceedings in the cause in the probate court is contained in the transcript. It shows that the judgment of the probate court dismissing the petition of Alsie Thomas was entered of record on the 28th day of February, 1920, and that this was a day of the regular January, 1920, term of the Ashley Probate Court. The probate record also shows that C. D. Oslin was the judg’e of the probate court who rendered the judgment. In addition we copy from the record the following:

‘ ‘ Affidavit fob Appeal.
“In re Estate of James Thomas. Petition for Assignment of Dower.
“Alsie Thomas respectfully prays an appeal from the judgment of the probate court herein to the circuit court of Ashley County, and says that said appeal is taken because she verily believes she is aggrieved, and is not taken for the purpose of vexatión or delay.
“Alsie Thomas.
“Subscribed and sworn to before me this 28th day of February, 1920.
“TJ. J. Cone, Notary Public.
‘ ‘ Filed February 28,1920.
“George T. Gardner, Clerk.
“Examined and approved this February 28, 1920.
“0. D. Oslin, Judge.”

It is claimed by counsel for appellants that the record of the probate court does not show that an appeal to the circuit court was granted, and that the circuit court acquired no jurisdiction of the case. Counsel for appellants invoke the general rule announced in Matthews v. Lane, 65 Ark. 419; Walker v. Noll, 92 Ark. 148, and other decisions of this court to the effect that it is necessary, in order to invest the circuit court with jurisdiction, that it appear from the record that the affidavit and prayer for appeal were presented to the probate court, and that the appeal was granted. In certain cases the statute requires that the county court shall grant the appeal to the circuit court, and under such statutes it has qlso been held that the granting of the appeal by the county court is a prerequisite to th.e exercise of the jurisdiction by the circuit court. Hence counsel places particular reliance upon the decision in Drainage District No. 1 v. Rolfe, 110 Ark. 374. In that case it was held that the circuit court was without jurisdiction, and that the judgment on appeal from the county court was void, where the record did not disclose in the matter of a formation of the drainage district that any of the steps were taken perfecting an appeal from the county to the circuit court. The court further held that, inasmuch as the record showed that the circuit court was without jurisdiction of the cause, the defect of jurisdiction was not waived by a failure to move the court to dismiss the appeal.

Every decision must be construed with reference to the facts of the particular case. In that case the record of the Supreme Court contained a transcript of the proceedings in the county court, and did not show anything about a remonstrance against the formation of the district being filed in the county court; nor did it show an appeal from the county court, if any was granted; nor any of the steps necessary in taking an 'appeal. The statute required the county court to grant the appeal, and, having prescribed the method for taking an appeal, such method must be substantially followed in order to give the circuit court jurisdiction. In that case there was an entire absence, in the record brought to the Supreme Court, of any showing that the county court had granted the appeal, or that the parties interested had taken any of the necessary steps toward taking an apneal. Here the facts are essentially different. The record shows that an' affidavit for appeal substantially in the language of the statute was filed and sworn to on the day that the judgment of the probate court was rendered. Attached to this, affidavit is the following: “Examined and approved this February 28, 1920. C. D. Oslin, Judge.” The record of the probate court shows that February 28, 1920, was a day of the regular January, 1920, term of the Ashley Probate Court, and that it was the day upon which the judgment in question was rendered and entered of record. The probate record also shows that C. D. Oslin was the judge who rendered the judgment. The notation made by him on the petition is sufficient to show that the prayer for appeal was granted. Alsie Thomas had complied with the statute with regard to taking the appeal,.and was entitled to have it granted as-a matter of right. The record shows that the petition was filed while the court was in session, and the fact that the presiding judge marked on the petition the words, “Examined and approved,” and signed the same as judge, is evidence that he intended to act upon the petition and to grant the appeal.

It is true that the order was not entered of record, but that was not necessary in order to invest the circuit court with jurisdiction. The granting of the appeal by the probate court upon the filing of a proper petition by the losing party was sufficient to confer jurisdiction upon the circuit court. The entering of such an order upon the records of the probate court was merely evidence of the fact that the appeal had been granted. The judicial act of the presiding judge of the probate court in term time in granting the appeal upon proper affidavit filed invested the circuit court with jurisdiction, and the manner of proving that the order was made could be waived, and it was waived by the appellants here not appearing in the circuit court and moving to dismiss the case there for want of jurisdiction. If they had made a motion to dismiss in the circuit court, they might have insisted that the record of the probate court was the best proof of whether or not an appeal to the circuit court had been granted, or they might have waived the production of the record and have permitted other proof to have been introduced of the fact that an appeal had been duly granted. The essential thing that gives the circuit court jurisdiction is the granting of the appeal by the probate court upon proper affidavit filed, and not the manner of proving the granting of the appeal. In short, under our decisions the parties could not waive the granting of the appeal by the probate court, but they could waive the manner of proving the same. This is shown by other decisions bearing on the question.

In Stricklin v. Galloway, 99 Ark. 56, there was an insufficiency of the affidavit of appeal from the probate court to the circuit court, and the court held that this was waived by the parties appearing in the circuit court and taking substantive steps in the case.

Again in Huffman v. Sudbury, 117 Ark. 628, the court held that it is not essential to the exercise of jurisdiction bv the circuit court that the affidavit for appeal filed in the probate court should appear in the record, but that the fact that it was so filed might be established by other evidence. So, too, in Spybuck Drainage Dist. No. 1 v. St. Francis County, 115 Ark. 591, where the statute required the county court to grant the appeal upon an affidavit filed in the manner provided by the statute, the court held that it was not necessary that the record of the county court should show that the affidavit for appeal had been filed, but that this fact might be shown by other proof that the affidavit for appeal was filed with the proper officer, and that when such proof was made the jurisdiction of the circuit court attached.

In the application of this rule to the instant case it may be said that the record contains affirmative testimony from which the circuit court might have legally inferred that the probate court granted an appeal to the circuit court, and appellants will be deemed to have waived the proof of that fact by the entry of the order granting the appeal on the records of the probate court, because they did not move to dismiss the appeal in the circuit court on the ground that the jurisdictional facts were not shown by the best evidence.

Therefore it can not be said that the appeal was not granted 'by the probate court, and that on this account the circuit court acquired no jurisdiction in the case.

On the merits of the case, it is earnestly insisted that the findings of fact made by the circuit court are not supported by the evidence. The court found that Alsie Thomas was the widow of James Thomas, deceased, and as such was entitled to dower in his estate. Appellants introduced testimony tending to show that James Thomas and Alsie Thomas had never been legally married, and that they lived together in a state of concubinage. We need not set out this evidence in detail, because the case was tried before the court sitting as a jury, and the circuit court made a genéral finding of fact in favor of appellee. It has been uniformly and repeatedly held that the findings of fact made by a circuit court are as conclusive as the verdict of a jury, and will not be disturbed on appeal unless the evidence is legally insufficient to support them. Huffman v. Sudbury, 117 Ark. 628; Gay Oil Co. v. Akins, 100 Ark. 552; Fort Smith & Van Buren Bridge Dist. v. Scott, 111 Ark. 449; Cady v. Pack, 135 Ark. 445, and Matthews v. Clay County, 125 Ark. 136.

This brings us to a consideration of whether the evidence adduced by appellee was legally sufficient to sustain the judgment. Appellee was a witness for herself. According to her testimony, James Thomas died on January 9,1920, at his home in Ashley County, Arkansas, and they had lived there as husband and wife for about eight years before he died. James Thomas and Alsie Thomas were married at Fort Smith, Ark., on the 6th or 7th of April, 1910, and lived together as husband and wife until James Thomas died. Appellee lived in the same house with James Thomas about six years before 1910, and cooked for him. She did not stay in the same room with James Thomas, but slept in another room with Causey Drew and Ms wife. James Thomas asked her to marry him, but put off their marriage. Finally she told him she was going to leave and go to Fort Smith to live because he had not married her as he had agreed to do. A few weeks after she went to Fort Smith James Thomas wrote her and asked her if she would marry Mm, if he would come to Fort Smith for that purpose. She answered that she would. He then wrote her to meet him at the train at Fort Smith on a certain day. On that day she did meet him, and he had a marriage license that was issued by the clerk of Ashley County, and as they walked along the street from the train they met an old negro preacher named Mooney, who used to live in Ashley County, and James Thomas- procured him to marry them. James Thomas turned over the marriage license to the old preacher, and they never saw it afterward. The marriage .license was never returned to the clerk by the preacher as provided by the statute.

Two physicians who practiced medicine in Ashley County near where James Thomas lived after he brought Alsie back from Fort Smith testified that James Thomas told them that Alsie was his wife and always spoke to and of her as his wife.

One of the physicians testified that he did their practice for four years, and during'all of this time James Thomas conducted himself toward Alsie as his wife and treated her as such.

A salesman in the store where they traded stated that James Thomas always spoke of and treated Alsie as his wife.

Several other witnesses testified that they lived near to James Thomas several years before he died, and that he always spoke of Alsie as his wife and treated her as such.

According: to common repute in the neighborhood, they were regarded as husband and wife.

It was shown on the part of appellants that the old colored preacher whom Alsie testified as having performed the marriage ceremony between James Thomas and herself in 1910, had died in Ashley County before that time. For this reason it is insisted that her testimony is not entitled to any probative force. We can not agree with counsel in this contention. This was a matter which affected her credibility as a witness only. It diminished the weight of her testimony, but did not destroy it.

The law in this State is that marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation. Declarations of the parties are evidence tending to establish marriage. Kelly’s Heirs v. McGuire, 15 Ark. 555; Jones v. Jones, 28 Ark. 19; 2 Greenleaf on Evidence (16 ed.), § 462; 1 Wigmore on Evidence, 268, and vol. 3, §§ 2082-2083.

In the light of these authorities, it may be said that the testimony of appellee to the effect that she and James Thomas were married in Fort Smith in 1910 under a license he had procured in Ashley County is testimony of a fact which, if true, established a ceremonial or legal marriage between them. Her testimony is not overcome because the marriage license was not returned by the preacher as required by the statute. Proof that they procured a license as required by the statute and were married by a minister of the Gospel showed a legal marriage, and the return of the minister of that fact on the marriage license was only evidence that the marriage had been performed by him, but did not of itself constitute the marriage. It may be that appellee was mistaken in the preacher who married them, but this did not overcome her testimony to the effect that they were married by a minister of the Gospel after James Thomas had procured a license therefor as provided by the statute. Her testimony is corroborated by that of several witnesses to the effect that James Thomas over afterward referred to appellee as his wife and treated and conducted himself toward her as such. The testimony of appellee and the other witnesses was testimony of a substantive character and legally sufficient to support the findings of the circuit court to the effect that appellee was the widow of James Thomas, deceased, and as such entitled to dower in his estate.

It is also insisted that the judgment should be reversed because the circuit court found that certain of the personal property was the individual property of appellee and rendered judgment in her favor for it. It is contended that the circuit court acquired only such jurisdiction on appeal as the probate court had in the original proceeding, and that the probate court had no jurisdiction in a contest between the administrator and others over property rights.

It is true that the jurisdiction of the probate court is confined to the administration of the estate of the decedent. The probate court had jurisdiction to appoint appellee as administratrix of the estate of James Thomas, deceased, and to allot her dower in his estate as his widow. According to the evidence adduced by her, she and her husband lived on a farm in Ashley County, Arkansas, and he had accumulated considerable personal property which was kept on the farm. Certain articles of this property, however, belonged to her, and the court gave it to her. In order to properly administer the estate of James Thomas, deceased, and to allot dower to his widow, it was necessary for the court to determine what property belonged to the estate, and the question of the title to certain articles arose as a necessary incident to the determination of the main matter before the court. In such case the probate court can determine the question of title to the property, for this is necessary in properly administering the estate and allotting the property to those entitled to it as distributees under the statute. King v. Stevens, 146 Ark. 443.

It follows that the judgment must he affirmed.


text:
    Jefferson v. Souter.
    Opinion delivered October 3, 1921.
    1. Mortgages — absolute deed — evidence.—While equity will permit parol evidence to be introduced to show that a deed absolute in form was intended as a mortgage, the evidence to establish that fact must be clear, unequivocal and convincing.
    2. Mortgages — absolute deed — evidence.—For the purpose of ascertaining whether an absolute deed was intended by the parties as a mortgage, the court will consider all the surrounding circumstances, including the value of the land, the price paid, and the acts and declarations of the parties at the time the transaction was had.
    3. Evidence — declaration against interest.' — Declarations against interest are admissible against all who succeed to the declarant’s interest or who claim under him.
    4. Evidence — matter op common ■ knowledge. — It is a matter of common knowledge that lands appreciated greatly in value between January, 1912, and January, 1917.
    Appeal from Columbia Chancery Court; J. M. Barker, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    In January, 1917, J; T. Souter brought suit in the circuit court against Lillie Jefferson to recover possession of 81 acres of land in Columbia County, Ark.
    Lillie Jefferson filed an answer, asserting title to the land in controversy and setting up facts tending to show that the transaction with the plaintiff was not an absolute sale of the land to him, but was only intended by the parties as a mortgage. She asked that the cause be transferred to the chancery court, which was done.
    According to the testimony of Lillie Jefferson, on tiñe 17th day of December, 1902, L. H. Pearce executed a deed to the land in controversy to Scott Jefferson for the consideration of $240. Scott Jefferson was her husband. As soon as the land was purchased, they moved' on it, and Scott Jefferson finished paying for it in January, 1904. They continued to occupy the land as their homestead until Scott Jefferson died on the 13th day of April, 1914. After his death Lillie Jefferson claimed the land as her homestead and rented it out, but never collected any rent therefor. On the 24th day of December, 1908, Scott Jefferson and Lillie Jefferson, his wife, executed an absolute deed to L. H. Pearce to the land in controversy for the consideration of $301.30. It was intended by the parties that the transaction should be a mortgage to secure Pearce the amount named as the consideration in the deed. On the 4th day of March, 1911, L. H. Pearce and wife executed a deed to George Piclder to the land in controversy for the consideration of $331.42. On February 25, 1911, Scott Jefferson, by an instrument in writing, which was not recorded, notified L. H. Pearce that he had transferred all his interest in the contract concerning the land in controversy made by Pearce to Scott Jefferson and directed Pearce to execute a deed to the land to G. T. Pickier. On the 20th of January, 1912, G. T. Pickier and his wife executed a deed to J. T. Souter to the land in controversy for the consideration of $320. In the spring of 1914, a short time before he died, Scott Jefferson caused a suit to be filed in the chancery court against J. T. Souter for the specific performance of an alleged contract for the purchase of the land in controversy.
    The attorney for Scott Jefferson testified that he went to see J. T. Souter about the matter, and that Souter claimed that Jefferson owed him $592; that he made a tender of this amount to Souter; that Souter refused to accept the tender and to make a deed to Scott Jefferson to the land in controversy. The attorney for Scott Jefferson also testified that he dismissed the suit for specific performance in 1916, before the present suit was instituted, and that the land in controversy was worth $1,000 at the time the present suit was brought.
    According to the testimony of J. T. Souter, he did not agree with Scott Jefferson to pay off the amount that Jefferson owed Pickier, which was secured by a lien on the land in controversy, 'and to receive a deed from Pickier to the land as security therefor. On the other hand, it was intended by the parties that J. T. Souter should receive an absolute deed from G. T. Pickier to the land in controversy, and that the transaction was in no sense to be considered as a mortgage to secure Souter for an indebtedness owed- him by Scott Jefferson. At the time the transaction was had, Souter did make a verbal agreement with Scott Jefferson for a resale of the land to him if Jefferson would pay him the amount he had paid for the land together with an account which Jefferson owed him. The whole amount was $592, and Souter would have conveyed the land to Jefferson if the latter had paid him this amount. Souter denied that Jefferson or his attorney had ever tendered him this amount. In the first part of 1914, Jefferson saw that he was not able to pay Souter the $592, and agreed to pay Souter rent for the land thereafter. Jefferson began to trade with another firm that year, and Souter, at the instance of Jefferson, by an instrument in writing, waived his landlord’s lien for supplies. After Jefferson agreed to pay rent on the land in 1914, Souter expended $500 in making permanent improvements on the place and thereafter paid the taxes on the land.
    The merchant who agreed to furnish Scott Jefferson supplies for the-year 1914 testified that, before he would furnish Jefferson, he required Souter to waive his landlord’s lien for supplies. Scptt Jefferson told the merchant who agreed to furnish him in 1914 that J. T. Souter would not claim anything but the rent, and the merchant had Jefferson to get a statement from Souter to that effect before he furnished him supplies.-
    The chancellor found the issues in favor of the plaintiff, Souter, and a decree was entered accordingly. To reverse that decree, the defendant, Lillie Jefferson, has duly prosecuted this appeal.

      Joe Joiner and Henry Stevens, for appellant. •

      In determining whether an instrument which is in form a deed, is a mortgage or a deed, the court will consider the situation of the parties, the property conveyed, its value, the price paid, defeasances, verbal or written, and the acts and declarations of the parties. 112 Ark. 607; 27 Id. 404. A deed absolute in form will be treated as a mortgage if the proof of such intent is clear and convincing. 110 Ark. 632. See also, 23 Ark. 479; 193 S. W. 264; 107 Ark. 1; 95 Id. 509; 225 S. W. 24, 203 Id. 1039; Ann. Cases, 1917C, 974.
    The instrument under which appellee holds is a mortgage, and the heirs are entitled to the property on payment of the debt.

      McKay & Smith, for appellee.
    The evidence does not show that Jefferson ever paid Souter anything on the purchase price of the land nor that he took possession pursuant to the contract. Possession alone will not take the case out of the statute of frauds; it must have been taken pursuant to the contract. 206 S. W. 896; 21 Ark. 277; 44 Id. 334; 63 Id. 100; 75 Id. 526; 6 Pomeroy’s Equitable Remedies, Yol. 2, §§819, 820. The evidence is uncontradicted that the verbal contract of sale existing between Souter and Jefferson was cancelled prior to the year 1914, and that Souter rented the land to' Jefferson. Since appellants did not plead the statute of frauds, they cannot take advantage of the fact that this contract of cancellation was verbal. However, if it was void under the statute of frauds, the fact that Souter took possession and made valuable improvements on the land by building houses is sufficient to take the case out of the statute.
   Hart, J.

(after stating the facts). The deed to J. T. Souter to the land in controversy is absolute on its face. While equity will permit parol evidence to be introduced to show that the transaction was intended as a mortgage, in order to overcome the presumption of law and. show from the absolute form of the deed that the transaction was intended by the parties as a mortgage, the evidence must be clear, unequivocal and convincing. Wimberly v. Scroggin, 128 Ark. 67, and Snell v. White, 132 Ark. 349.

According to these and .other decisions of this court, for the purpose of ascertaining the true intention of the parties, the court will consider all the surrounding circumstances, including the value of the land, the price paid, as well as the acts and declarations of the parties at the time the transaction was had.

Tested by this rule, it can not be said that Lillie Jefferson showed by clear, unequivocal and convincing testimony that the deed to the land in controversy to J. T. Souter was intended to be treated by the parties as a mortgage. On the one hand, Lillie Jefferson testified that her husband induced J. T. Souter to pay off an indebtedness against the land and to take an absolute deed thereto as security. On the other hand, Souter denied that he made such an agreement with Scott Jefferson, and testified that it was intended that the deed should be an absolute one. He admitted, however, that he made a verbal agreement with Scott Jefferson for a resale of the land if Jefferson would pay him back the purchase money and an account for supplies which he ówed him. Souter received a deed to the land on the 20th day of January, 1912. He waited on Jefferson during the years 1912 and 1913 to carry out his contract to repurchase the land. Jefferson failed to carry out his part of the contract for the repurchase of the land, and it was then agreed that Jefferson should begin to pay rent for the land. Souter is corroborated by the testimony of the merchants who agreed to furnish Jefferson with supplies in 1914.

The merchant testified that Jefferson told him that Souter .only claimed a lien for rent and would waive his landlord’s lien for supplies. The declaration .of Jefferson to the merchant was against his interest and is admissible against Ms successors in interest and all who claim under Mm. Russell v. Webb, 96 Ark. 190, and Strickland v. Strickland, 103 Ark. 183.

It is claimed that the testimony of Lillie Jefferson is corroborated by the fact that the consideration agreed to be paid for the land was grossly inadequate. Counsel point to the fact that Souter only claimed $592 and that the land was worth $1,000. Souter purchased the land in January, 1912, and the testimony showing the land to be worth $1,000 referred to the time when the present suit was brought, which was in January, 1917. It is a matter of common knowledge that lands appreciated greatly in value during the.period of time referred to, and the alleged inadequacy of price is not, under the circumstances, of any weight in determining whether the transaction was an absolute sale or not.

It is true that the'testimony of Lillie Jefferson is corroborated by the attorney.who testified that he had made a tender of the amount claimed to be due by Souter, and that the latter had refused to accept the tender and execute a deed to Jefferson to the land. The testimony is in direct and irreconcilable conflict, and Lillie Jefferson failed to establish her claim by that clear, unequivocal and convincing testimony which is required under the settled law in this State.

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Knights and Ladies of Security v. Lewellen.
    Opinion delivered October 3, 1921.
    Insurance — nonpayment op premium —waiver. —Where the constitution and by-laws of a benevolent society provided that on failure to pay a monthly assessment when due the delinquent member should automatically stand suspended, it was error to instruct, in effect, that, if the society subsequently notified the member of his delinquency, this was evidence that the society had waived the delinquency.

      Appeal from G-arland Circuit Court; Scott Wood, Judge;
    reversed.

      Galvin T. Gotham and A. J. DeMers, for appellant.

      A. B. Belding, W. D. SwaAm and James E. Hogue, for appellee.
   Smith, J.

Appellee was the beneficiary in a certificate issued to T. J. Lewellen, her husband., by appellant, a fraternal insurance company. The certificate was issued on the 31st day of May, 1919, and the insured died on August 13, 1919. The premium was payable monthly on the first day of each month in advance, and there was a provision in the constitution and by-laws of the order that, if any member should fail to pay any monthly assessment by the last day of the month for which the assessment was due, the delinquent member should automatically stand suspended.

The controlling question of fact in the case is whether the insured had paid two premiums or only one. The parties practically agree that if two premiums were paid the company is liable, whereas, if only one premium was paid, appellant is not liable. In fact, appellee, in stating the case, says: “The paramount issue, and really the only issue, in the case was as to whether the assured had paid his dues.”

We do not set out the testimony bearing upon this issue, as it may be different upon' the retrial of the cause.

In submitting the case to the jury the trial court, among other things, said:

“If he failed to pay his dues, then he would stand automatically as suspended unless the association would voluntarily carry him on its boohs. On that feature of it, even though he had not paid his dues for the month of July, if they still carried him on the books and charged that dues to him and notified him that he was in arrears and made a demand on him, I think there was some evidence here to that effect, why that would be a waiver of that part’of the constitution and by-laws which says that a member is suspended for- the nonpayment of dues, but unless they did carry him on that way, if he failed to pay the dues for July he was suspended and dropped automatically and could not claim any right at all under the certificate. ’ ’

The only testimony on this feature of tlie case was that on August 6, 1919, the home office of the appellant company addressed to Lewellen, the insured, a formal notice that he was in arrears for his July dues. Objection was made to the introduction of this testimony on the ground that it was irrelevant and incompetent, inasmuch as the original notice was not produced or its loss accounted for. We think, however, that the introduction of the original of the notice would not have warranted the giving of the instruction set out above.

It does not appear how the insured would have been reinstated if, in fact, he was delinquent. It may be that payment of the delinquent dues would have been sufficient, but no contention is made that any dues were paid after the date of this notice. It is certain, however, that the mere giving of formal notice of delinquency did not operate to reinstate the suspended member, as he was not thereby induced to take any action or to pay any .money. 2 Bacon’s Life & Accident Ins., 601.

The certificate sued on was for the sum of $2,000, but it contained the provision that, if the member should die within six months after the delivery of the certificate to the member, the company would be liable to the beneficiary for only sixty per cent, of the amount of the certificate; and, inasmuch as the assured died within six months of the date of his certificate, it is conceded that the appellant company is not liable for more than $1200. The judgment rendered was for this amount. It is claimed, however, that this sum is excessive under another section of the policy; and such appears to be the fact. Section 7 of the policy reads as follows: “It is herein further provided that, for the purpose of creating and maintaining a reserve fund, that, on the death of the said member, tbe National Council shall retain fifty dollars of each one thousand dollars of this certificate, less one dollar per thousand for each year this certificate shall have remained in force.” This certificate is for $2,000, and would have been enforceable for that amount if the assured had not died within six months of the date of his certificate. The beneficiary is not entitled to the credit of the dollar per thousand as the certificate had not been in force for one year. The necessary effect of this section of the policy is therefore to' further reduce the amount of the recovery by a hundred dollars (in the event liability is properly found upon the retrial of the cause).

Other assignments of error are argued, but, as they may not arise on the retrial of the cause, we do not discuss them.

For the error in giving the instruction set out above, the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Hall v. Webb.
    Opinion delivered October 3, 1921.
    1. Trusts — jurisdiction op equity. — Courts of equity have full.and complete jurisdiction over trusts independently of statute, whether the same arise by express declaration and agreement or result by implication of law.
    2. Trusts — investment in bank stock — lien.—Where trust funds have been wrongfully invested in hank stock, equity has authority to declare a lien on the stock and to order a sale thereof.
    3. Conspiracy — joint liability.— Where the complaint alleged and the evidence established a conspiracy to defraud the beneficiaries of a trust fund, it was not error to render a joint judgment against the conspirators. •
    Appeal from Van Duren Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.
    Appellants pro se.

    1. The demurrer should have been sustained. The complaint alleged wrongful possession. The statute, C. & M. Dig. §§ 55-57 provides an adequate remedy at law. 15 Ark. 381; 134 Id. 484. The bill is essentially a bill of discovery which is not permitted by statute. C. & M. Dig. §§ 1037-1038; 49 Ark. 311. The question of title to the property was one for a jury, hence the court should have transferred the case to the. circuit court, or held it for determination of title. 177 S. W. 1146; 156 Pac. 590; 80 Ore. 132; 158 Pac. 810; 74 Ark. 104.
    2. The money in controversy having been delivered by the deceased in his lifetime to appellants, Hall, in conformity with his intention, as shown by the evidence, to leave what he had at the time of his death to those caring for him until that time, the title thereto at the time of his death was in said appellants, and not in his estate. 105 Ark. 116; 134 Id. 484.
    3. The statute, C. & M. Dig. §6144, does not prohibit co-defendants from testifying as to conversations and transactions between the deceased and other parties defendant. 43 Ark. 307. The statement of deceased to .Butherford was competent, as was also a similar statement made by deceased in the letter. Greenleaf on Ev. §108; 12 Ark. 782; 43 Ark. 103. Letter was properly identified and made an exhibit without objection. Objection thereto for the first time after the deposition was read to the court, was insufficient. C. & M. Dig. §§4248-4249.
    4. The evidence does not establish the allegation that delivery of the money was procured by fraud and deceit. Fraud will not be presumed. 108 Ark. 415. The burden of proving fraud was upon appellee.

      Garner Fraser, W. E. Hall and J. Allen Eades, for appellee.
    1. The demurrer was properly overruled. The complaint states a case clearly within chancery jurisdiction. 21 O. J. 50; Id. 110; Id. 116, 117; 70 Ark. 191; 101 Id. 455; 121 Id. 85; 74 Id. 121; 227 S. W. 2.
    2. Considering the whole of appellants’ testimony in connection with that of other witnesses, a court of conscience conlcl have rendered no other decree. The chancellor’s findings on the evidence are at least persuasive. 95 Art. 528.
    3. Appellants were not competent witnesses as to 'transactions with and statements of the intestate. Their testimony as to these matters should not be considered. 79 Art. 73, 74; 43 Id. 307.
   Humphreys, J.

Appellee instituted suit against appellants and Cinda Hall, the wife of John Hall, in the-Van Burén Chancery Court, to recover $3,300 alleged to have been received from Jasper Webb a short time before his death, for the purpose of distribution among his heirs after his death. In addition to alleging that the defendants, under a false claim of ownership, converted the money thus received to their own use, and that $1,000 of same was invested in bant stock, which they were about to sell to innocent purchasers, and that they were insolvent, and that appellee was without any adequate remedy at law, the bill contained the following allegation-. “That the deceased was so weak in mind and body that he was incapacitated and unable to look after his business or financial interests and affairs; that he reposed absolute and explicit faith and confidence in the defendants ; that the defendants, taking advantage of said faith and trust so reposed in them, and taking advantage of their relationship to the deceased, with the fraudulent intent, purpose and design to obtain possession of his property, overreached him and misled and deceived him, and falsely and fraudulently represented to him that, if he would turn over and deliver to them his money and other personal effects, they would care for same, and would correctly distribute same in the event of his death. That, relying upon said promises and representations so made to deceased by defendants, he delivered to them as trustees and fiduciaries for safe-keeping the sum of $3,300 to be by them taken care of for him. ’ ’ The prayer of the bill sou.g’ht in substance to hold tlie defendants as trustees of the funds received and to enjoin a transfer of the stock and the expenditure- of the fund.

To this bill, appellants and Cinda Hall filed a motion to transfer the cause to the circuit court, and a demurrer challenging the jurisdiction of the chancery court, and, without waiving their rights under the demurrer, answered, denying the material allegations of the bill and alleging that the moneys received were gifts to the appellants.

The cause was heard upon the pleadings and evidence adduced, which resulted in a decree overruling the demurrer and the motion to transfer to the circuit court and the dismissal of the bill against Cinda Hall for the want of equity, and in a finding that appellants received $1,450 belonging to the estate of Jasper Webb, deceased, out of which sum $874.41 had been invested in fifteen shares of bank stock in the Bank of Scotland, Arkansas, owned at the time of the rendition of the judgment by T. S. Hall, and that appellee should have a lien declared thereon for said amount. Judgment was rendered in accordance with the findings, from which an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

Jasper Webb, who had resided in California from young manhood until a few weeks before his death, informed John Hall, a nephew by marriage, by letter, that he had sold his farm, was in poor health and would like to spend his remaining days in Arkansas if he could come or send for him. He enclosed in the letter $500 for the Jeff Webb family, consisting of five persons, with directions that John Hall see that each received his respective share. This money was divided as directed. In response to John Hall’s nest letter, the following letter was written by Jasper Webb to him:

“Springville, Cal., Aug. 24, 1919.
“Mr. John Hall,
“Scotland, Arkansas.
“Dear Nephew: Tour letter to hand .found me still improving some in, health but slowly. I guess I shouldn’t complain for a man 84 years old. I hope these few lines will find you well. You said you was not able to make the trip, but would send after me if I wanted to come and live with you the rest of my days. I written you before that I have sold my little farm and reserved a right to live on it as long as I wanted to, but now if you will be kind enough to come or send after me and take care of me the rest of my days which I am sure are but few, you shall have what little I have got. It is not much, but enough to do us a while. So let me hear from you soon.
“Your uncle,
“Jasper Webb.”
T. S. Hall, a son of John Hall, went to' California soon after the receipt of the last letter to bring his great uncle to Scotland, Arkansas, where John Hall resided and conducted a hotel. One witness testified that T. S. Hall told him that Jasper Webb sent him $100 to pay his way to California. T. S. Hall denied that he made the statement. John and T. S. Hall testified that T. S. Hall took $400 of John Hall’s money to California for the purpose of paying the return expenses of Hall and Webb if needed, and, if not needed, to convert it into gold and bring it back. T. S. Hall testified that, after reaching California, Jasper Webb made him a present in all of about $450; that, when he started back, Jasper Webb purchased a draft payable to himself for $1,000, being all the money he had except expense money for the return trip; that he, Hall, purchased a draft for $800, payable to himself; that, in the purchase of the draft, he used his own money and $400 that his father had given him before he left for California; that the expense of the return trip was borne largely by his uncle and partly by himself; that, after his return, his uncle indorsed the $1,000 draft and he placed it, together with the $800 draft, to his personal credit in the Scotland bank and gave his uncle $1,000 in cash, which he gave to his father, John Hall, for taking care of him the rest of his life. John Hall testified he gave him $40 at one time, $80 at another, and the balance of the thousand at another, for agreeing to take care of him the rest of his life; that he had expended practically all the money at the time he testified, and was unable to give any itemized account of the expenditures. Webb and Hall reached Scotland about September 19. Webb went at once to the hotel conducted by John and Cinda Hall, and, after a short illness, died on October 14, 1919. On October 27 thereafter, Dr. Hatchett transferred ten shares of the bank stock to T. S. Hall and five, shares to John and Cinda Hall jointly; that the stock was paid for by a check in the sum of $1,175, drawn by T. S. Hall on his account; that in the latter part of the year 1919, John and Cinda Hall transferred the five shares of stock, which had been transferred to them jointly, to T. S. Hall. J. H. Lindsey testified that, on September 26, 1919, T. S. Hall deposited $1,970, of which the two California drafts represented $1,800; that, on October 27, 1919, the account had been reduced down to $874.40; that, on that day, Hall deposited $379, and the bank paid his cheek to Dr. Hatchett of $1,175 for the fifteen shares of stock. Also that T. S. Hall asked him whether he could deposit $1,500 in gold in the bank and receive it back in gold a short time after he returned from California. Ho was informed that he could.

R. W. Hall, an uncle of T. S. Hall, testified that, soon after returning from California, he told him his Uncle Jasper was fee'ble, and that when starting he forgot $750 in gold that was hidden in the stove-wood box and went back and got it.

Dr. Hatchett testified that John Hall came to him the evening he agreed to sell fifteen shares of stock in the bank to T. S. Hall for $1,175 and wanted to know what one-third of $1,175 was, without explaining why he wanted to know.

John Hall, Cinda Hall and T. S. Hall all testified that one-third, or five shares, of the stock was sold by T. S. Hall to his mother for cash, but none of them could explain why the five shares were transferred to John and Cinda Hall jointly, or why later in the year it was transferred to T. S. Hall, except that Cinda Hall got tired of ' owning the stock.

T. S. Hall testified that he had paid a portion of the $1,800 out and borrowed $750 from Cleve Hall to aid in the purchase of the fifteen shares of bank stock, and also got $500 from his mother for the same purpose; that he did not put a cent of the old man’s money in the stock.

Cleve Hall testified that he loaned Ms brother, T. S. Hall, $750 about that time and produced the note which was given to him.

W. O. Rutherford, a neighbor of Jasper Webb, Sr., for years in California, testified that he purchased his farm in 1919 for $1,750; that $500 of the money was sent to John Hall for the Webb heirs, and $1,000 was used to purchase the $1,000 draft which he took to Arkansas with him; that he believed Webb had about $800 at home in addition to that amount.

Jasper Webb, Jr., a nephew of Jasper Webb, Sr., and brother to Cinda Hall, testified that his uncle told him he had given his money to no one about a week before his death; that, while they were talking, Cinda Hall came to the door and said, “I wish you would not bother our old uncle. ’ ’ Cinda Hall denied making the statement.

N. A. Simpson, brother-in-law of T. S. Hall, testified that he sent a car to Morrilton for Hall and Webb when they returned to Scotland; that, when they reached Scotland, T. S. Hall offered to pay him ’; he inquired what luck he had on the trip, and Hall showed him some gold and other money in Ms pocketbook. T. S. Hall denied bringing any gold back with him from California, but testified that, if he showed Simpson any, it was what had been taken in at the store in his absence.

Clara Webb, wife of 'appellee, testified that, on Sunday before Jasper Webb, Sr., died, she heard him ask T. S. Hall for his money, and T. S. Hall answered: “I am keeping it, You don’t need it;” that he asked for Ms money a second time and received the same answer; that she went to the kitchen and told Cinda Hall what occurred in her hearing; that Cinda Hall said T. S. Hall had a part of the money and went to the room and stopped the conversation. John Hall, Cinda Hall and T. S. Hall denied the conversation, or that Clara Webb was at the Hall home that day. Judge and Mrs. Griggs both testified that she and T. S. Hall were there on the day mentioned. Mrs. Lindsey testified that Clara Webb told her of the occurrence the day Jasper Webb died.

Sallie Simpson testified that she was at the home of John and Cinda Hall the Sunday when Clara Webb was there; that Clara Webb was there, but was on the front porch next to town and remained there not more than ten minutes; that she had a talk with Jasper Webb, who said he had some money, that he had divided all except enough to do him while he lived; he said, “T. S. Hall was going to be paid for his trouble in going after him, and the rest to my papa and mamma for keeping him; and this conversation was about a week after Jasper Webb came.

W. J. Watson testified that Jasper Webb, Sr., told him that he aimed for John Hall to have his money for taking care of him.

Cleve Webb testified that John Hall told him there would be $900 or $1,000 left by deceased after payment of expenses, and that, if each of the others would turn back the $100 received by them before Webb left California, he would be willing to divide the whole sum equally. John Hall denied making the statement.

Rice Webb, father of the appellee and nephew of Jasper Webb, Sr., testified in substance, as follows: Came to see his uncle at the home of John and Cinda Hall and spent a week with them. Was told by deceased that he had deposited with the ¡Bank of Scotland a draft in the amount of about $1,500, and that T. S. Hall had in his possession $1,200 or $1,500 in gold belonging to him, the deceased. Deceased desired witness to take charge of and wind up the estate; wanted his property divided equally among his heirs. Deceased asked T. S. Hall why he did not put his money in the bank. T. S. Hall replied that it was all right any way. The attitude and conduct of defendant, Cinda Hall, his sister, was resentful and unfriendly toward him. She seemed to resent his talking to his uncle, and her actions made him feel that he was not wanted at her home. No one was present while he was talking with Jasper Webb. He would not talk if any one came in while he was talking to him. Admitted that he later wrote to John Hall the letter exhibited with his deposition in which he said that the deceased had told him that he had in the bank at Scotland $1,000 and that T. S. Hall had $1,000 in gold of his.

After the death of Jasper Webb, Sr., two letters were written to inquiring relatives by T. S. Hall, one was written for his father and the other at the instance of his father with directions to sign his mother’s name to it. His mother, Cinda Hall, testified that she did not know of or authorize the letter. He explained that he had not written either letter as his father intended. In further explanation he said: “Well, the way I understood the last one — I am not quite sure now, but I think he was there and had me to write it — the first one I know he was not there, and I must have wrote it sort of by guess work and signed mother’s name to it after he had told me what to write.” In further explanation, he said: “Papa came in one day when I was putting up the mail. I had my mind on my own business while he was telling' me something like this to write to Manda Ellis — to write her that the old man was dead, and that he would not have anything left counting anything for his expenses and trouble and for his mother’s and his tombstone it would leave him in the hole something like $25. So after he had gone out, or sometime during the day, I happened to have time and thought about it so I written about what I could think of. But he told me later I did not write it like he intended.” The letters are as follows:

“Scotland, Ark., October 22, 1919.
“Manda Ellis, Spiro, Oklahoma.
“Dear Sis: I reply to your letter. Uncle Jasper died 14th of October. You said something about coming. If you wanted to come, why didn’t you come while he was living? We paid all expenses while he was sick and burial expenses and had to pay $25 out of our own money, and would like if you all are willing to help me make this amount up. It wouldn’t be much apiece. He had nothing but what he sent in, and that was what we done and give you all. “Your sis,
“Cinda Hall.”
“Scotland, Ark., Nov. 1, 1919.
“Mr. Eice Webb.
“Dear Brother: Cleve (Webb) told me you wrote him and wanted to know about Uncle Jasper’s money. Never had very much; so I would write you the truth about it as I have heard so much about it first one way and then another. You know a man can hear anything now. I know all about his money, and will tell you the truth about it, as I don’t want anything that don’t belong to me. After paying expenses and doctor bill and burial expenses, he had one hundred and sixty-two dollars left, and I bought your mamma and him a tombstone apiece. So I thought that would be best to do with that little amount of money, as it wouldn’t be much apiece. And Cleve said that would be what he would do with it if he was me, so I done so. My wife said you wanted a pair of his glasses. Write me the kind of case they was in and I will send them to you by mail. All well. It rains here every daju Write me a long letter when you have time. “Yours,
“John Hall.”

Appellant first insists that tbe court erred in overruling the demurrer and refusing to transfer the cause to the circuit court. We can not agree with this contention. The gist of the bill, according to its salient allegations, was to regulate and enforce a trust fund which had

been and was being diverted and misappropriated without a complete and adequate remedy at law to prevent dissipation of the fund. The allegations state a cause of action peculiarly within the powers of courts of equity to examine. 25 C. J. 116-117. It was said by this court in Spradling v. Spradling, 101 Ark. 451, that “courts of equity have inherent and exclusive jurisdiction over all kinds of trusts and trustees. They have full and complete jurisdiction of trusts independently of statute, whether the same arise by express declaration and agreement, or result by implication of law. The court therefore did not err in overruling the demurrer to the complaint. ’ ’

The next contention of appellant is that the decree of the court is against the clear preponderance of the evidence. The evidence is quite voluminous; hence we have only attempted to summarize it. An extended written analysis of it could serve no useful purpose. Our conclusion, after a careful reading and analysis of the evidence, is that Jasper Webb, Sr., had about $1,800 when he left California for Arkansas; that it was his intention to pay the necessary expenses incident to his removal to Arkansas and to give John Hall the balance for taking care of him the rest of his life. This was indicated in his first two letters; also indicated after reaching Arkansas by statements made to Sallie Simpson and W. J. Watson. This intention, thus expressed is the only circumstance in the record tending to corroborate the evidence of the appellants to the effect that the gift was consummated. All other statements made by Jasper Webb, Sr., to other witnesses tended to show that he changed his mind, and that the gift he intended to make was never consummated. Practically every statement and act of John, Cinda and T. S. Hall during the illness and for a time after the death of Jasper Webb, Sr., indicate that he never gave any money to appellants. We can not reconcile a bona fide gift with the attempt at secrecy on the part of the Halls concerning the amount received and the disposition made of it. The two letters written to relatives by T. S. Hall, concerning the money of deceased and the disposition thereof, not only conflict with each other bnt both abound in untruths concerning the amount of the money the deceased had before he started to Arkansas and the disposition made of it. The impression intended to be conveyed by the letters was that the $500 sent from California and divided between the heirs absorbed all the assets of the deceased. The letters were evidently written to forestall or prevent an inquiry as to the disposition of about $1,800 which had been reserved by Jasper Webb, Sr., at the time he sent the $500 to the heirs. The explanation attempted for writing these letters simply makes a bad matter worse, for they do not explain. We can not say the chancellor’s finding against the gift was contrary to a clear preponderance of the evidence.

It. is practically undisputed that at least $1,000 of deceased’s money was deposited to the individual account of T. S. Hall in the Scotland Bank in September, and that the account had not been reduced below $874.45 up to and including the time a check for $1,175 was given to Dr. J. K. Hatchett in payment of fifteen shares of stock. That check absorbed the balance and all of an additional deposit made on that day, except $96.41. The court did not err in declaring the balance on that day the property of the estate of the deceased, as it will be presumed that Hall checked prior to that time, against his individual funds and not against the trust funds. Nor did the court err, as contended, in declaring a lien upon the stock for the trust fund and making an order to sell the stock to satisfy the lien. To have simply impounded and delivered the stock to the administrator would have forced him to accept stock in lieu of his judgment, which might have been of less value than the judgment. The declaration of a lien and order of sale was in effect a foreclosure, cognizable in a court of equity and not within the exclusive jurisdiction of a probate court, as suggested by appellants.

The last contention of appellants is that the court erred in rendering a joint judgment against appellants. The allegations of the bill in effect charge a conspiracy against appellants to divert the trust fund, and the allegations are fully sustained by the evidence. Under the theory and proof of a conspiracy, it was proper to render a joint judgment against the appellants.

No error appearing, the judgment is affirmed.


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    Webb v. State.
    Opinion delivered October 3, 1921.
    1. Criminal law — harmless error. — No prejudice can result to a defendant by reason of being convicted of a lower degree of homicide than is warranted by the evidence.
    2. Homicide — implied malice. — The law implies malice where one purposely kills another with a deadly weapon without provocation.
    3. Criminal law — exclusion of evidence — materiality.—Error in the exclusion of testimony will not be considered on appeal, in the absence of a showing as to what the excluded testimony would have been.
    4. Criminal law — instructions construed as a whole. — Where there is no conflict between the instructions' given, it is proper to read them together to ascertain whether the law in the case is correctly declared.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      James B. Gray, Caldwell, Triplett S Boss, and Nixon, Levine & Nixon, 'for appellant.
    The verdict of murder in second degree is without evidence to sustain it, as it was based on mere supposition or guess. 56 Ark. 8; 49 Ark. 364.
    Malice, express or implied, must be proved, and the absence of proof on that point is basis for reversal where there is a conviction of murder in the second de-gree. 141 Ark. 57. No presumption of malice where the killing is shown to have been necessary, and none of the circumstances manifest a wicked or abandoned disposition. 82 Ark. 545. Proof of killing does not make out the offense of murder nor supply proof of malice, when circumstances of mitigation appear. 38 Ark. 221.
    Evidence of previous difficulty between the deceased and Nick Webb, communicated threats, etc., should have been admitted on the trial of this defendant, as his guilt hung on that of his brother Nick. 58 Ark. 235.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Appellant can not complain of the action of the jury in convicting him of a lesser degree of homicide than the evidence warranted.' 113 Ark. 301; 68 Ark. 310; 37 Ark. 433; 133 Ark. 373.
    The law presumes malice from an unexplained attempt to take life. 82 Ark. 540; 96 Ark.- 52. Or in the sudden killing of one without provocation. 25 Ark. 4Q5; 70 Ark. 272, 278.
    The alleged error in excluding the testimony of Nick Webb will not beconsidered on appeal because appellant did not offer to show what the answers to the questions propounded would have been. 88 Ark. 562; 87 Ark. 123; 133 Ark. 599.
    ■Instructions 10 and 11 were not bád because they failed to embody all the law of the case, for appellant’s contention was covered in other instructions. 88 Ark. 433. Several instructions upon the same subject-matter must be taken together as a whole. 48 Ark. 396; 133 Ark. 206.
   Humphreys, J.

Appellant was indicted and tried in the Jefferson Circuit Court for murder in the first degree for shooting and killing one King Waters, found guilty of murder in the second degree, and as a punishment therefor sentenced to serve a period of twenty-one years in the State penitentiary, from which judgment and sentence an appeal has been duly prosecuted to this court.

Appellant’s first insistence is that the evidence on . behalf of the State tended to establish murder in the first degree, and that adduced on behalf of appellant tended to establish a justifiable homicide, and, for that reason, the evidence is insufficient to support a verdict for murder in the second degree. This court is committed to the doctrine that no prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence. Allen v. State, 37 Ark. 433; Bruce v. State, 68 Ark. 310; McGough v. State, 113 Ark. 301; Lasater v. State, 133 Ark. 373. If, therefore, the evidence is sufficient to support a verdict for murder in the first degree against appellant, he can not complain because a verdict of murder in the second degree was returned against him.

It is admitted by appellant and his brother that he and his brother, Nick Webb, shot King Waters, their tenant, in a field being cultivated by him; that they shot him in the legs; that he, appellant, fired only one shot with a pistol, 32-caliber, which at the time contained nine cartridges, and his brother one shot with a pump gun; that his brother had about a half box of shells with him, a part of which was loaded with buckshot; that, at the time they fired the shots, they were standing near a thicket, and the deceased, King Waters, had approached them to a point about 75 yards distant; that Waters grabbed his knees . and began to stagger around; that neither waited to see the result, but passed through the thicket and to their car, which had been left at their father’s, and then went home and telephoned to the officers at Pine Bluff; that Nick Webb and King Waters had a difficulty the day before the tragedy occurred, of which appellant had been informed; that the difficulty was discussed just before starting to that part of their farm cultivated by Berry Webb which adjoined that part cultivated by King Waters. The evidence on the part of the State tended to show that King Waters was shot down while examining a piece of wet land to ascertain whether it was dry enough to plow; that he stated several times during the short time he survived that he did not see or know who fired upon him; that three shots were heard, two being from a pistol and one from a shotgun; that eleven shot entered Waters’ body between his knees and groins — the two highest being larger than the others, the highest entering the groin and supposed to be the fatal shot, as it severed an artery; that, after being shot, Waters staggered around considerably before falling; that his pistol, which he carried in a scabbard, was found on the ground near him with loads in every chamber; that, upon examination, a place in the thicket was observed where some one had apparently stood and whittled, and at or near which an empty 32 pistol shell wás found.

The testimony adduced on behalf of appellant tended to show that they took the loaded weapons along with them on the visit to the farm on account of the difficulty the day before and for protection in ease an attack was made by King Waters upon Nick Webb; that, in passing around the thicket on the side of the field cultivated by Waters, en route to that part of the land cultivated by Berry Webb, they were discovered by Waters, who immediately advanced upon them with drawn pistol, cursing and abusing them, and, when ordered to stop, instead of doing so, fired upon them, when a shot was fired by each in succession in necessary self-defense.

If the evidence introduced by the State was believed by the jury, it was sufficient to sustain a verdict for murder' in the first degree. If, however, the jury disregarded the State’s evidence tending to establish an assassination, they were not necessarily driven, under the evidence in this case, to the conclusion that the homicide was justifiable. The jury may have believed that part of appellant’s testimony to the effect that they were walking around the thicket and were in plain view at the time the fatal shot or shots were fired, and yet may have concluded that the killing was unnecessary. They might well have argued that, on account of leaving the scene of the tragedy immediately, appellant and his brother had fired upon Waters, without sufficient provocation or justification, for, had they fired in necessary self-defense, in all probability they would have remained to assist the wounded man or to have explained the details of the tragedy to the first who might appear on the scene. In this event, malice, a necessary essential in second degree murder, would arise by implication from the manner and circumstances of the killing. The law implies malice where one purposely kills another with a deadly weapon without provocation. McAdams v. State, 25 Ark. 405; Vance v. State, 70 Ark. 272.

In the course of the trial, over the objection and exception of appellant, the court refused to permit Nick Webb to testify concerning the trouble which occurred between him and King Waters the day before the tragedy. He was permitted to state that they had a difficulty, and that he communicated this fact to his brother, but was not permitted to go into details concerning it. Appellant insists that the court erred in excluding this evidence, because, under the theory of the State that he was present, aiding- and abetting, or present and ready and consenting to aid and abet Nick Webb, he was entitled to have all facts go to the jury in mitigation or exculpation of Nick Webb. If this contention were true, the case could not be reversed in the state of this record on that account, for the reason that the record fails to show what his brother would have said concerning the details of the trouble if permitted to prove them. Unless the excluded testimony of a witness is offered and set out in the record, it is impossible to determine its materiality to the issue involved. This court said in the case of National Life & Accident Ins. Co. v. Henderson, 133 Ark. 599, that “objection to the exclusion of testimony would not be considered on appeal, in the absence of showing what the testimony would have been.” The same announcement was made in St. L. S. W. Ry. Co. v. Myzell, 87 Ark. 123, ánd Boland v. Stanley, 88 Ark. 562.

Appellant insists that instructions numbered 10 and 11, given by the court, as to the necessity of an accused to do .all in his- power to avoid a killing or to avert the necessity therefor before resorting to force in his own defense, are fatally defective, because they did not define the test by which an accused may determine the danger and necessity for acting. It is true this phase of the law of self-defense was not included in the instructions referred to, but was thoroughly covered in the instruction numbered 5, requested by appellant and given by the court. There was no conflict between instruction No. 5 and the two instructions given by the court. "Where there is no conflict between instructions, it is proper to read them together to ascertain whether the whole law in the case is correctly declared. Ward v. Blackwood, 48 Ark. 396; Burke v. Sharp, 88 Ark. 433; Yellow Rose Mining Co. v. Strait, 133 Ark. 206.

No error appearing, the judgment is affirmed.


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    Dupree v. Smith.
    Opinion delivered October 3, 1921.
    1. Abatement and revival — parties.—In an action involving the title to land the cause should be revived, after the death of one of the litigants, in the names of his heirs.
    2. Abatement and revival — limitation.—Crawford & Moses’ Dig. § 1065, providing that “an order to revive an action against the representatives or successors of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made,” is mandatory.
    3. Abatement and revival — necessary parties. — Where a cause of • action involved the title to land and incidentally the rents for its unlawful detention, upon defendant’s death no revival could be had by the plaintiff without the consent of defendant’s heirs, unless had within one year from the time it could have been first made; the consent of defendant’s administrator alone being insufficient, as the right to recover rents from the estate was dependent upon the title being adjudged to be in plaintiff.
    Appeal from Cliicot Chancery Court; Joe Harris, Special Chancellor;
    reversed.

      D. Dudley Crenshatv, for appellant.

      1. When by mistake of the draftsman of a deed the grantor is made to convey a wrong tract of land, a court of equity will correct the mistake and reform the deed so as to convey the tract intended. 48 Ark. 498; 79 Id. 592.
    2. Upon the death of the defendant whose interest in land is involved, the suit must be revived against the heirs at law, and until this is done there can be no adjudication concerning the title. 1 R. C. L. 26; 93 Ark. 307; 113 Id. 207; 74 Id. 149; 69 Id. 215; 61 Id. 414; 51 Id. 82; 39 Id. 104; Id. 235; Id. 306; 34 Id. 379; 16 Id. 168. Without the proper parties before it, the court had no jurisdiction to render final judgment concerning the subject-matter of the suit. 81 Ark. 468; 93 Id. 307.

      John Baxter, for the heirs.
    The judgment should be set aside, and the cause dismissed, because: 1. The heirs were necessary parties. 2. The cause of action was barred before any suggestion was made of the death of M. M. H. Dupree. 3. The administrator had no authority to enter his appearance after the action was barred. 93 Ark. 307; 113 Ark. 207; 49 Id. 87; O. & M. Dig. §§6312-13; 103 Ark. 601; 112 Id. 6.

      Buchner é Golden, for appellee.
    1. The burden was on the appellants to establish mistake. A deed will not be reformed except upon proof that is clear, unequivocal and convincing. 96 Ark. 251; 11 Id. 66; 95 Id. 523; 101 Id. 611; 221 S. W. 481. Reformation will not be ordered on the ground of mistake unless the mistake was mutual. 89 Ark. 309; 53 Id. 185. If there was a mistake, the grantor should have acted promptly to obtain a correction of the deed, and not waited until suit was entered against him. 99 Ark. 486.
    2. An administrator has .the right to sue or defend in ejectment. 42 Ark, 25, 28; 8 Id. 9; 62 Id. 64. The rents sued for was a demand against the estate of M. M. II. Dupree, and made in time. 105 Ark. 95; 28 Id. 500; Kirby’s Dig. §111. An administrator may bring an action without joining with him the persons for whose benefit it is prosecuted. Kirby’s .Dig- §6002. The order of revivor was made by consent of parties and appearance entered by the administrator. It stood revived even though the time had elapsed. Kirby’s Dig. §§6306, 6313; 103 Ark. 606; 110 Id. 39; Id. 317.
    3. A plea of limitations is a general plea, and since the heirs in their motion to dismiss pleaded the statute of limitations without reservation, they thereby entered their appearance. Having entered appearance for one purpose, they were in court for all purposes. 89 Ark. 509, 511; 90 Id. 316.
    4. The attorney for an administrator may enter his appearance. 110 Ark. 317; 104 Id. 1; 84 Id. 527.
    5. The appeal by the heirs and Baxter was premature. An order of revivor is not final, and not a ground for appeal. 92 Ark. 101. Unlike Ex parte Gilbert relied on by appellants, the administrator in this case is a general administrator and takes possession of all property for full adjustment. The contest here is over possession of property. 50 Ark. 551; 57 Id. 153; 109 Id. 281.
    6. The chancellor’s findings will be sustained unless against the clear preponderance of the evidence. 120 Ark. 37; 86 Id. 212; 106 Id. 583; 92 Id. 546.
   Humphreys, J.

Suit in ejectment was brought, on the 8th day of January, 1918, by appellee against M. M. H. Dupree and iB. F. Dupree, her husband, in the Chicot Circuit Court, to recover the possession of lot 15 in block 4, Holland’s Addition to the town of Dermott, Ark., and for $300 damages for the detention of same, alleging ownership thereof under deed from them of date March 16,1912.

The Duprees filed answer, admitting the execution of the deed and denying damages for the use of same, but alleging in a cross-complaint that the said M. M. H. Dupree, being the owner of both lots 14 and 15 in block 4 of said addition, sold appellee lot 14 and intended to convey him said lot, but, through a mutual mistake, lot 15, instead of 14, was described in said deed; that, a short time thereafter, they erected a residence and other improvements upon said lot 15, of the value of $650, and have retained the continuous possession of said lot. The prayer of the cross-complaint was for a reformation of the deed so as to describe lot 14, instead of lot 15, and for a transfer of the cause to the chancery court of said county. The motion embodied in the complaint to transfer the cause to equity was sustained, and the cause was transferred to the chancery court pursuant to an order of the circuit court. During the pendency of the suit in the chancery court, M. M. H. Dupree died, on the 20th day of April, 1919, leaving as hér only heirs her two sons, J. M. Holland and S. L: Holland, and two grandchildren, Lucile Dupree and Dorris Freeman. John Baxter afterward purchased the interest of S. L. Holland in said lots. The suit remained upon the chancery docket after the death of M. M. H. Dupree without any steps’being taken until April 4, 1921. On that date, the surviving heirs and John Baxter appeared for the sole purpose of filing a motion to dismiss the cause of action because barred by the statute of limitations, which was pleaded, requiring that causes be revived after the death of á plaintiff or defendant in a real property action within one year from the time the order of revivor might have first been made.

On the same date, appellee suggested the death of M. M. H. Dupree and prayed for a revivor of the cause in the name of B. F. Dupree, her administrator, who had been appointed as administrator of her estate on May 8, 1919. Thereupon, B. F. Dupree, as administrator, entered his appearance and consented that the case be revived in his name as such administrator.

Upon hearing of the motions, the court revived the cause against B. F. Dupree, as administrator of the estate of M. M. H. Dupree, but dismissed the motion of the heirs of M. M. H. Dupree and John Baxter for the want of equity, from the dismissal of which motion the heirs and John Baxter prosecuted an appeal to this court.

Immediately thereafter, the court proceeded to hear the cause upon the original pleadings and exhibits and the depositions of James Smith and B. F. Dupree, which resulted in a decree establishing the ownership of said lot 15 in appellee, and a judgment of $195 for damages by way of rental against B. F. Dupree, as administrator of the estate of M. M. H. Dupree, from which decree B. F. Dupree, as administrator, has prosecuted an appeal to this court.

The effect of dismissing the motion of the heirs of M. M. IT. Dupree and John Baxter and of reviving the cause in the name of B. F. Dupree, as administrator of the estate of M. M. H. Dupree, only, was to exclude the heirs and John Baxter from participation in the cause of action. In other words, it was a ruling on the part of the court that the heirs of M. M. H. Dupree, deceased, were not necessary parties to the adjudication of the title to the land of which she died possessed and to which she claimed title. The heirs and the parties claiming through them were necessary parties to the controversy, because the relief sought affected the title to said real estate. Chowning v. Stanfield, 49 Ark. 87; Ex parte Gilbert, 93 Ark. 307; Mayers v. Lark, 113 Ark. 207. It was said by this court in Mayers v. Lark, supra, that (quoting syllabus 1) : “In an action involving the title to land, the cause should be revived, after the death of one of the litigants, in the name of his heirs.” The court proceeded to a hearing of this cause without reviving it against the heirs of M. M. H. Dupree or treating them as proper or necessary parties. The cause could have been revived against the heirs upon proper notice the first day court was in session after the death of M. M. H. Dupree, and the cause could not have been revived against them without their consent after the expiration of one year from the time the order of revivor might have first been made. Section 1065, Crawford & Moses’ Digest. This section of the statute is mandatory in nature. Anglin v. Cravens, 76 Ark. 122. Almost two years had expired after the death of M. M. H. Dupree and after the appointment of an administrator for her - estate before an attempt to revive the cause was made, and, at that time, a revivor against the administrator only was sought, no revivor having at any time been sought against the heirs. The right to revive against the administrator was contingent upon the right to revive against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. M. H. Dupree, deceased, was dependent upon the title of the real estate being adjudged to appellee, which could not be done without the necessary parties before the court. The causes of action were not severable, so that appellee might revive and prosecute his suit for rents against the administrator of the estate of M. M. H. Dupree. The consent therefore of the administrator to a revivor availed appellée nothing. The court erred in overruling the motion of the heirs of M. M. H. Dupree and John Baxter to dismiss the proceedings. The court should have stricken the cause from the docket upon the motion. Section 1067, Crawford & Moses’ Digest.

For the error indicated, the judgment is reversed and the cause remanded with directions to strike the cause from the docket.