author: McCulloch, C. J.

text:
    Murphy v. Province.
    Opinion delivered April 24, 1922.
    1. Death — recovery for — distribution.—Where a cause of action for the wrongful death of a locomotive engineer may be brought under either the Federal or State statutes, the distribution of the sum recovered is controlled by the statute under which recovery is had.
    2. Death — recovery under state or federal statute — complaint. — In an action for the death of an engineer in the employ of a railroad company, a complaint which fails to show whether deceased was engaged in interstate commerce or not at the time he was killed will support a recovery under either the Federal or State statute providing an action for wrongful death.
    3. Death — railway locomotive engineer — statute regulating recovery. — Where a locomotive engineer, while not engaged in interstate commerce, was killed in the performance of wbrk in the line of his duty directly connected with and incident to the use and operation of a railroad, an action for his death is based on Crawford & Moses’ Dig. § 7138 et seq., and not on Lord Campbell’s act (Id., §§ 1074, 1075).
    4. Death — repeal of statute. — Crawford & Moses’ Dig., § 7138 et seq., known as the Railroad Hazards Act, repealed the Lord Campbell’s Act (Id., §§ 1074, 1075), so far as the two acts were necessarily inconsistent, though the former act provides that it shall not be held to limit the duty of common carriers by railroads or impair the rights of their employees in the existing laws of the State.
    5. Death — beneficiaries.—Under Crawford & Moses’ Dig., § 7138, providing that a railroad company “shall be liable for all damages to any person suffering injury while he is employed by such carriers, or, in case of the death of such employee, to his or her personal representatives, for the benefit of the surviving widow or husband and children of such employee,” held that an adult daughter who for ten years had lived with her husband apart from her father, and was not dependent upon him and had received no contributions from him during' that time, was not entitled to share in the sum recovered for his death.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    reversed.

      E. B. Kinsivorthy and B. S. Kinsworthy, for appellant.
    Under our statutes (C. and M. Dig.,) <§§ 1070-1075) the next of kin who are entitled to damages for the death of á parent are limited to such as sustained a pecuniary loss by his death, and cannot be held to include children living apart from the deceased parent and not dependent upon him. 53 Ark. 117; 51 Ark. 509; 76 Ark. 555; 79 Ark. 62; 93 Ark. 183; 104 Ark. 59; 134 Ark. 1; 203 Pa. St. 511; 93 A. S. E. 774; 272 N. Y. 8, 607.
    Where recovery for the death of the parent was had under the Federal statute, the same' rule applies as contended for under our State statute. See 57 L. Ed. 1031, 228 U. S. 702; 57 L. Ed. 785, 228 U. S. 173; 59 L. Ed. 1433, 238 U. S. 507.

      Allyn Smith, for appellee.
    The fund should be distributed under the statute of descents and distributions in 'the proportion it would have been had it been personal property. .See 41 Ark. 187; 103 U. S. 11; 222 S.. W. 735. The widow is entitled only to a distributive portion. 98 Ark. 102; 79 Ark. 62; 52 Fed. 371; 197 Pac. 97; 14 A. L. R. 509 and notes; 28 Ohio St. 191; 14 S. W. 559; 87 Mich. 374.
    In making the distribution the statute must be followed and distribution made as with other personal property. Ill Ala. 572; 59 Ala. 272; 24 Ark. 487; 726 Iowa 158; 108 Iowa 695; 160 N. C. 432; 128 Ga. 371; 18 111. 349; 26 la. 400; 21 111. 606.
   McCulloch, C. J.

Appellant’s husband, W. T. Murphy, was a locomotive engineer, engaged in railroad service on the line of the Missouri Pacific Railroad Company, then under government control, and while in such service and working in the line of his duty at Cotter, Arkansas, he received personal injuries from which death ensued.

Appellant and her husband resided in Baxter County, Arkansas, and letters of administration were issued to her upon the estate of said decedent, and she instituted an action in the circuit court of Pulaski County against the Director General of Railroads to recover damages on account of -the death of said decedent, alleging that it was caused by negligence in the operation of the railroad. Damages in the sum of $1,000 were sought on account of the pain and suffering of the deceased, and damages in the sum of $9,000 were asked as compensation for the next of kin.

There was a judgment in favor of appellant as such administratrix for the recovery of $500 on the first count for damages, and for the recovery of $7,500 on the second count.

Appellee is a daughter of said decedent, and she instituted the present action in the chancery court of Pulaski County against appellant to recover a share of the amount collected under said judgment.

Appellee set forth in her complaint the pleadings in the original action instituted by appellant as administratrix against the Director General of Railroads, and she alleged that she was one of the children and distributees of the estate of said decedent and was entitled to an equal share of said amount so recovered.

Appellant filed her answer in the cause, disputing the right of appellee to share in the amount so recovered, and the record contains a recital that the cause was heard upon an agreement that “the copies of the complaint and judgment entry set forth in plaintiff’s complaint are correct, and the facts set forth in defendant’s answer are true.”

The answer1 of appellant recites the fact that there are four living children of said deceased, W. T. Murphy, one of whom is an infant nine years of age, and the other three, including appellee, are adults, and that appellee is a married woman, twenty-six years of age, who was, at the time of the death of said W. T. Murphy, and for about ten years prior thereto, living apart from said decedent and was not dependent on said decedent, nor was she receiving any contributions of any kind from him.

It was the contention of appellee below, as here, that the recovery of the funds in controversy was secured in an action under the statute of this State which is generally referred to as having been patterned after Lord Campbell’s Act (Crawford & Moses’ Digest, §§ 1074, 1075), which provides that the recovery secured thereunder “shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate.”

The lower court sustained the contention of appellee and rendered a decree in her1 favor for a child’s part, or one-fourth, of the sum recovered by appellant, after deducting the-widow’s share of one-third.

The contention of appellant is that said decedent was, at the time of the injury which caused his death, engaged in the operation of a locomotive while used in interstate commerce, and that the recovery was had either under the Federal employers’ liability act or under a statute of this State other than the one under which appellee seeks recovery, which provides a different method of distribution of the funds thus secured. Crawford & Moses’ Digest, § 7138, et seq., Acts of 1911, p. 55.

The first question, therefore, which we must determine is, which one of the statutes the original cause of action and the recovery were predicated upon, for if the funds were recovered under the Federal statute, they must be distributed according to the terms of that statute (Taylor v. Taylor, 232 U. S. 362); and if under one of the statutes of this State, the amount recovered must be distributed according to the statute which authorizes the recovery.

The original complaint and the judgment of the court thereon were incorporated in the complaint in the present action. The complaint in the former action did not contain an allegation to the effect that Murphy was engaged in interstate commerce at the time of his injury, nor did it contain any allegation indicating that he was not so engaged. The complaint may be treated as silent on that subject. The action was brought by the- personal representative of the decedent, which was authorized by either of the three statutes now under consideration, and under the complaint as unamended there might have been a recovery either under the State statutes or the Federal statute, according to the facts disclosed in the proof. St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240.

The facts of the case, as recited in the answer of appellant, which is conceded to state the facts correctly, are that Murphy was engaged in interstate commerce at the time of his injury. But, even accepting the allegations of the original complaint itself as denoting the character of the accident, it was one not based on §§ 3074 and 1075, Crawford & Moses’ Digest, but it was based on the more recent statute referred to above. Crawford & Moses’ Digest, § 7138, et seq.

The later statute, just mentioned, related to wbat we have denominated as railroad hazards, and we have construed the statute to include “every employee who, when injured, was performing some work in the line of his duty, directly connected with and incident to the use and operation of a railroad.” St. L. I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377; St. L. I. M. & S. Ry. Co. v. Wisemem, 119 Ark. 477.

It was alleged in the original complaint that Murphy, at the time of his injury, was in the employ of the defendant, “not operating any engine, but on said date was assisting Engineer Schultz to disconnect engine 2395 at Cotter, and on account of defects in said engine the radiator rod was blown out of said" engine, striking said Murphy in the back of the head, breaking his skull,” etc.

This allegation brings the cause of action within the last statute referred to as interpreted by the cases cited above. It is clear, therefore, that the other statute of this State (the one patterned after Lord Campbell’s Act) has no application, and we need not determine what the distribution would be under that statute.

The act of 1911, supra, contains- a provision in the last section to the effect that the act shall not be held “to limit the duty of common carriers by railroad, or impair the rights of their employees in -the existing laws of the State.” This provision may be conceded to show an intention on the part of the Legislature not to repeal any statute then in existence except those repugnant to the terms of the later statute, but that statute necessarily operated as a repeal of any other statute conferring a right of action under the facts set forth in this statute. The two statutes are inconsistent to that extent, and the last one repeals the first to that extent. This is necessarily so, for the remedies of the two statutes are entirely different and for the benefit of different persons.

It is unnecessary to determine whether the original recovery should be treated as one under1 the Federal statute, or as one under the statute of this State last mentioned. It might have been under either of those statutes, according to the fact whether or not the employee was engaged in interstate commerce.

The Federal statutes have been interpreted by the Supreme Court of the United States to authorize a distribution of the amount recovered only to the next of kin mentioned who are injured by the wrongful or negligent act. That court has repeatedly held that the statute was intended to afford compensation only to those who sustain injuries resulting from the death of the decedent, and that the distribution must be limited to that class. Michigan Central R. Co. v. Vreeland, 227 U. S. 59; Gulf, C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173; Taylor v. Taylor, supra; Central of Vermont R. R. v. White, 238 U. S. 507.

That part of our statute which describes the persons on whom the right of action is conferred, and the beneficiaries thereunder, is in almost the same language as that of the Federal statute. It provides that common carriers by railroad “shall be liable for all damages to any person suffering injury while he is employed by such carrier, or, in the case of the death of such employee, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employee; if none, then to such employee’s parents; if none, then to the next of kin of such employee, for such injury or death resulting in whole or in part from the negligence,” etc. Crawford & Moses’ Digest, sec. 7138. There are one or two slight changes in the statute from the language employed in the Federal statute, but it is evident that the writer of our statute had before him the Federal statute and used it as a model. When the whole statute is read together, it is clear that it was intended to cover the same subject as that covered by the Federal statute so far as it affects causes of action of the kind described other than while the employee was engaged in interstate commerce.

The more explicit interpretation of the Federal statute by the Supreme Court of the United States, beginning with the Yreeland case, su/pru, came after the adoption of the statute by the lawmakers of this State, and the doctrine of borrowed interpretation cannot, perhaps, be invoked, but we have no doubt of the correctness of the subsequent interpretation of the Federal statute, and our statute is, of course, subject to the same interpretation. That statute does not contain any express provision or direction with reference to the distribution of the fund, as is the case with respect to our statute patterned, after Lord Campbell’s Act. But it does clearly appear from the statute that the recovery is for the benefit of the person or class of persons who suffer injury on account of the death caused by the wrongful act, and, in the absence of an express provision to the contrary in the statute itself, the only reasonable interpretation is that the participation in the distribution of the fund must be limited to those who are to be compensated for the injury.

We are therefore of the opinion that under this statute appellee is not entitled to participate in the distribution of the fund in controversy, for it is undisputed that she sustained no pecuniary injury by the wrongful act which caused the death of her father. According to the agreed statement of facts, she was not dependent on her father, and she was not receiving any contributions from him or expecting any, but on the contrary she was married and living with her husband, apart from her father.

The judgment is therefore reversed, and the cause is dismissed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Brackville v. Holt.
    Opinion relivered April 25, 1922.
    1. Descent and distribution — burden of proving relationship.— One who claims to 'be heir to a decedent on a distribution of the estate must establish relationship to the decedent.
    2. Appeal and error — prejudicial error. — Where one claiming to be the daughter and sole heir of a decedent laid claim to her estate, and her claim was contested by collateral heirs, a finding of the trial, court in favor of the contestee was erroneous and prejudicial in view of the court’s further finding that if the burden of proof had been upon the contestee her proof would have failed to preponderate.
    3. Courts — probate jurisdiction. — Where there was no controversy concerning the appointment of an administrator, and no question of inheritance and no prayer for distribution of the estate, the probate court had no jurisdiction to declare a person an heir of a decedent.
    4. Courts — probate jurisdiction. — The jurisdiction of the probate court is confined to the administration of estates which come under its control and to determine questions which are necessarily incident to such administration.
    Appealed from Pulaski Circuit Court, Second Division; Guy Fulh, Judge;
    reversed.

      Horace Chamberlin, for appellant.
    The character of a pleading is determined from its allegations and not from its name. 54 Ark. 468: On appeal from the probate court to the circuit court, the appellate court is required to try the cause de novo, without regard to which side perfected the appeal. C. & M. Dig., sec. 2261. The burden of sustaining an action is upon the party alleging the facts constituting the issue. 68 Ark. 284.
    The trial court erred in holding that only the declarations of Mrs. Foster would be admissible for the purpose of proving pedigree. 15 Ark. 604; 24 Ark. 587; 133 Ark. 72; 17 Cyc. 822; 86 N. W. 55.
    The testimony was not legally sufficient to sustain the trial court’s finding in favor of appellee. 112 Ark. 47; 57 Ark. 402; 17 Cyc. 817; 85 N. E. 979; 100 IT. S. 693; 229 S. W. 404; 118 Ark. 349.

      G. P. Ilarmvell, for appellee.
    The court properly held that the burden of proof was on the contestants. Bailey on “Onus Probcmdi” p. 322; 178 Ala. 375; 59 So. 609; 56 Am. Dec. 206; 36 L. R, A. (N. S.) 530; 113 Ha. 791; 84 Am. St. Re.p. 259; 196 111. 71; 59 Miss. 588; 42 Am. Rep. 381; 32 N. C. 185; 36 Ore. 417; 47 L. R. A. 548; 37 S. 0. 19; 60 Kan. 572; 70 Neb. 429; 71 Ala. 80; 63 Miss. 357; 51 111. App. 317; 4 Ind. 444; 4 Ky. Law Rep. 625; 30 La. Ann. 511; 38 Tes. 160; 108 Ark. 521; 72 Ark. 44; 97 Ark. 502; 133 Ark. 72; 134 Ark. 183; 139 Ark. 236; 24 Ark. 411.
   McCulloch, C. J.

Mrs. Victoria E. Foster, the widow of Frank Foster, deceased, was a resident of the city of Little Rock and died intestate on May 14, 1920, leaving an estate valued at $8,000, consisting entirely of personal property.

On May 29, 1920, a petition was presented to the probate court of Pulaski County naming appellants as the collateral hqirs of said decedent and asking that W. E. Lenon be appointed as administrator of the estate of said decedent. On the same day Mr. Lenon, who was the president of the People’s Savings Bank, a banking corporation in the city of Little Rock, presented an application in the name of his bank, praying that that institution be appointed as administrator of said decedent. The court granted the last-named petition and appointed the People’s Savings Bank as administrator.

It does not appear from the record which one of these petitions was filed first during that day, and there was no response nor opposition to either of the petitions. There had been no objections made to the appointment either of Mr. Lenon or the People’s Savings Bank. The appointed administrator qualified and took charge of the estate of the decedent.

In the petition for the appointment of the People’s Savings Bank, Daisy F. Holt was mentioned as the daughter and only heir at law of said decedent, and on June 11,1920, she filed a plea denominated as “a response to the petition for the appointment of Mr. Lenon as administrator, ’ ’ but tbe substance of the petition is merely a protest or contradiction of the claim of the collateral kin to the inheritance of the estate of said decedent. She alleged in that plea that she was a daughter and sole heir at law of the decedent, Mrs. Foster. She alleged also that Mrs. Foster left a last will and testament in an old trunk on the premises, and that she (appellee) was the sole beneficiary under said will. The prayer of that plea was for an order of the court for the surrender to the administrator of said trunk and contents, and that she “be decreed and adjudged to be the child and sole heir of her mother, Victoria E. Foster, and for all other proper, just and equitable relief in the premises.”

Appellants, as collateral heirs, appeared and filed a response to the plea of appellee, and in that plea they denied that appellee was the child of Mrs. Foster.

The probate court, after hearing the testimony, made an order as follows: ‘ ‘ That the proof shows that Daisy Foster Holt is the sole child and heir of the deceased, Victoria Foster; that she is the daughter of the deceased, not a foster daughter as contended for by the contestants, and the court so holds and decrees, and that, as such daughter, she is entitled to all the rights in her mother’s estate given her under the common law and the statutes of Arkansas.”

There was nothing embraced in the order with reference to the distribution of the estate in the hands of the administrator.

The present appellants prosecuted an appeal to the circuit court, and the cause was heard by the court on oral testimony directed solely to the question whether or not appellee was a daughter of the decedent, Mrs. Foster. The testimony was conflicting and supported a finding either way on the issue presented. There was a judgment in favor of the appellee affirming the judgment of the probate court.

' In overruling the motion for a new trial, the court incorporated the following statement in the order: “And the court, after argument of counsel, finds that the evideuce, submitted upon the allegations of the response of contestee and the answer of contestants, is so equally balanced that the granting of a new trial is primarily dependent upon a determination of where the burden of proof properly lies. The court therefore finds that the burden of proof was properly placed during the trial upon the contestants herein, and therefore the judgment of the court was proper in sustaining and affirming the judgment of the probate court. The court further finds that, if the burden of proof was erroneously placed upon the contestants and should have been placed upon the contestee, then the contestee’s proof fails to sufficiently preponderate over contestant’s proof, and the judgment ■of the court should have been in favor of the contestants, and the judgment of the probate court reversed.”

We are of the opinion that the court erred in its ruling as to the burden of proof.

After the probate court acquires jurisdiction over the estate of a decedent, the question of . inheritance can only arise upon an order for the distribution of the estate to the heirs, and a claimant to this estate must establish the right to the inheritance by proof of relationship to the decedent.

The law fixes the inheritance on proof of relationship, and, as appellee claims the right of inheritance as the daughter of the decedent, it devolves upon her to prove that relationship.

An administrator has no right to distribute the estate of his intestate until ordered by the court, and, as before stated, a claimant for the property asking for such an order must prove his or her relationship.

This is not a trial of the rights of property in an adversary proceeding, and the condition of the pleadings, therefore, has little or nothing' to do with the question of the burden of proof, but the fact that a party was claiming the inheritance and asking for a distribution of the property in his or her favor casts upon the applicant the burden of establishing the inheritance by proof of relationship to the decedent.

The error of the court calls for a reversal of the judgment, for it appears, from the recitals in the order of the court, that the judgment of the court would have been different but for this erroneous conclusion as to the law of the case.

This much is said in view of a further controversy to be settled later, concerning a distribution of the inheritance, 'but it is also clear to us that the probate court and the circuit court on appeal were both without jurisdiction to determine the question of inheritance from said decedent upon the issues presented, and that the judgment must not only be reversed, but the cause must be dismissed.

The jurisdiction of the probate court is confined to the administration of estates which come under its control and to determine questions which are necessarily incident to such administration. Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117; Shane v. Dickson, 111 Ark. 353; King v. Stevens, 146 Ark. 443; Gordon v. Clark, 149 Ark. 173.

All that the court determined in the present case was that appellee was the daughter and sole heir at law of the decedent. The judgment was merely declaratory in its effect, for nothing else was before the court. There was no controversy concerning the appointment of the administrator, and there was no question of inheritance involved in the prayer that one of the appellants be required to turn over the old trunk, containing the Bible and alleged will, to the administrator. Nor was there any prayer for the distribution of the estate. In fact, the time had not arrived for a final distribution of the estate, and such distribution could only have been ordered upon the execution -of bond for the refund of the part so distributed. Crawford & Moses’ Digest, § 216 et seq.

The question of inheritance could only arise as an incident to the distribution of the estate; and, since there was no prayer for distribution, the court had no jurisdiction to declare the right of inheritance.

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the proceedings for want of jurisdiction.

Humphreys, J.,

(dissenting). The majority are mistaken in their statement that there was no prayer for distribution of the estate. By reference to the original pleading of appellants it will appear that they asked that “the estate be distributed to them as tenants in common after the payment of any debts which may be due by said estate.” It is true that the time had not arrived for final distribution of the estate, as suggested by the majority,-but the estate and all the parties interested therein were before the court, except the creditors, if there were any. They were protected under the prayer, which requested that distribution be made subject to the claims of creditors against the estate. While the parties, by agreement, could not confer jurisdiction upon a court where it had no jurisdiction, the subject-matter involved here was a matter over which the probate court had exclusive jurisdiction, .and, the parties being before it, it seems to me that they might waive the time and thereby empower the court to adjudicate the matter at the time instead of later. The parties treated the suit as one for distribution, and having waived the time therefor, which prejudiced no one, it was, in my opinion, the duty of the probate court to distribute the estate, subject to the indebtedness, if any, to the parties entitled thereto. The result of the opinion of the majority is to require the parties to again litigate in the same court the same issues involved in the record now' before this court on appeal. This is an unnecessary burden to place upon the parties when they, themselves have not raised the question that the application for distribution was premature.

I agree with the majority that the burden rested upon appellee to prove that she was the daughter of the deceased, and that the circuit court erred in placing the burden on appellant, and that on this account the case should be reversed. I cannot agree with the majority in directing a dismissal of the proceedings. I think the' judgment should have been reversed, and the cause remanded for further proceedings. Therefore-, I dissent from the majority in directing a dismissal of the case.


text:
    Straughan v. Bennett.
    Opinion delivered April 24, 1922.
    1. Deeds — presumption of execution. — Where a mortgage contains a certificate of acknowledgment and is duly placed of record, this makes a prima facie case of the proper execution of the deed.
    2. Appeal and error — conclusiveness of chancellor’s finding.— In an action to set aside a foreclosure of a mortgage, a finding by the trial court that the mortgage was signed by the mortgagor’s wife was held not against the preponderance of the evidence.
    3. Mortgages — -proof of publication of notice of foreclosure.— Under Crawford & Moses’ Dig., § 6807, providing that notice of mortgage foreclosure sales shall be published in some newspaper published in the county, evidence held sufficient to prove the.publication of such a notice.
    4. Mortgages — oral appointment of substituted trustee. — -Where a mortgage provided for the substitution of a trustee for the original trustee named therein, an appointment of a substituted trustee indorsed on the mortgage record on the day of a sale conducted by him was sufficient, his appointment having been made orally prior to commencement of the foreclosure proceedings.
    5. Estoppel — mortgagor paying rent. — Where a mortgagor of land lived thereon two years after it had been sold at foreclosure sale, and paid rent to the purchasers at such sale and then abandoned -the property and permitted the purchasers to take possession and make valuable improvements, and made no claim to the land for more than six years, he is estopped to assert the invalidity of the foreclosure sale.
    6. Estoppel — conqlusiveness as to privies. — Where a mortgagor was estopped to question the validity of a foreclosure sale, his grantees were likewise bound by his acts.
    Appeal from Ouachita Chancery Court; J. Y. Stevens, Chancellor;
    reversed,

      Gaughan é Gifford, for appellant.
    The appointment of the substituted trustee to make the sale need not be in writing. 71 Ark. 487; 91 Ark. 395. Oral evidence to prove the appointment was admissible. 35 Ark. 47; 65 Ark. 53.
    The doctrine of laches applies to the claim of appellees. 71 Ark. 209.
    The appellee’s bill should have been dismissed for want of tender of payment of the mortgage debt. 53 Ark. 71; 129 Ark. 275.

      Pace, Campbell é Davis, for appellee.
    The deed of trust was void because not signed by Amanda McGehee. C. & M. Dig., sec. 5542. Signature by mark must be witnessed. C. & M. Dig., sec. 9732; 70 Ark. 449. The positive and unimpeached testimony of the wife that she did not sign the deed had greater force than the certificate of the notary. 38 Ark. 278; Grawleg v. Neal, 152 Ark. 232.
    The foreclosure sale was void because no lawful notice thereof was given. 84 Ark. 298; C. & M. Dig. 6807. The burden rested on appellant to show publication and that the land was correctly described, etc. 19 R. C. L. pp. 598-600, secs. 413-415; 76 Miss. 613; 71 A. S. R. 536; 75 Am. Dec. 701; 178 Mass. 453; 51 Am. Dee. 95; 8 A. S. R. 661; 1 Mich. 338.
    Oral testimony as to the appointment of the substituted trustee was properly excluded. Appellant saved no exception to the ruling of the court and cannot now complain. 9 Ark. 530; 127 Ark. 292; 96 Ark. 156; 123 Ark. 548; 44 Ark. 103; 78 Ark. 284. The second trustee deed was properly excluded. 106 Ark. 342. Appellees are not estopped by laches. 30 Ark. 520; 72 Ark. 267; 64 Ark. 104.
   McCulloch, C. J.

The tract of land in Ouachita County, containing 160 acres, which is the subject-matter . of the present litigation, was originally owned by Beauregard McGe'hee, a colored man, who received a patent from the United States and who occupied the land as a home and cultivated it as a farm.

Appellees assert title to the land under a conveyance from McGehee, and appellants claim title under a mortgage or deed of trust, alleged to have been executed by McGehee and wife in the year 1910, and under a foreclosure deed pursuant to the powers contained in the said deed of trust.

A firm of merchants doing business under the name of Watts & Bro. were the holders of the deed of trust alleged to have been executed by McGehee and wife.

This is an action instituted by appellees to cancel the mortgage to Watts & Bro. and the foreclosure deed pursuant thereto. They allege that the deed was not signed by McGehee’s wife, which rendered the mortgage void, as the land constituted McGehee’s homestead.

The mortgage was dated April 29, 1910, and was to secure a debt in the sum of $425, evidenced by a promissory note. The names of both McGehee and his wife, Amanda, were signed to the note as well as to the mortgage, and the signatures were witnessed by a notary public, R. C. Lockett, before whom the acknowledgment appears to have been taken. The deed was immediately placed of record. P. Lynch Lee was named in the deed as trustee, and power was conferred upon the trustee to sell in default of payment of the debt. The deed also contained a provision authorizing the holders of the debt to substitute and appoint a trustee to act in the place of Lee in the event of the latter’s death, disability or refusal to act.

Lee died in the year 1911, and the foreclosure was made by a substituted trustee, one Walker. The sale was made by Walker on April 7, 1914, and a deed was executed by him to the purchasers on the same day.

There was a written indorsement on the mortgage, dated April 7, 1914, appointing Walker as substituted trustee, and this writing is signed by Watts & Bro., the holders of the, note.

The land was purchased at the sale by Watts & Bro. and subsequently sold to other parties, who were made defendants and are now the appellants in this appeal.

McGehee continued to reside on the place for two years after the sale and paid rent to Watts & Bro. He removed from the land in the latter part of the year 1916 or the early part of 1917, and has not resided on the land since then. He executed a quitclaim deed to A. W. D. Overton on May 11, 1920, reciting a cash consideration of ten dollars paid, and other considerations not disclosed. Overton executed conveyances covering his interest in the land to his co-appellees, and this suit was instituted by them on July 5, 1920.

Appellants, who purchased from Watts & Bro., entered into possession of the land and made valuable improvements thereon between the dates of their respective purchases and the execution of the deed by McGehee to Overton.

There are two issues of fact in the case, one of which relates to the validity of the mortgage, or deed of trust, and the other to the validity of the foreclosure.

It is conceded that the land in controversy was Mc-Gehee’s homestead, and there is an issue of fact whether or not his wife signed the mortgage. If she did not sign it, the instrument was void under the statute which declares that all instruments affecting the homestead are void unless signed by the wife. Crawford & Moses’ Digest, § 5542.

The other issue relates to the question whether or not notice of the foreclosure was given.

A certificate of acknowledgment was appended to the mortgage, and it was duly placed of record, and this made a prima facie case of the proper execution of the deed Crawford & Moses’ Digest, § 1532; Polk v. Brown, 117 Ark. 321; Nevada County Bank v. Gee, 130 Ark. 312.

The burden of proof, therefore, rested upon appellees to prove that the deed was not executed or acknowledged by McGehee’s wife. The court made an express finding on this issue of fact, as recited in the decree, and found that the deed was executed and acknowledged by McGehee’s wife, and that it was a valid mortgage. The question for us to determine is whether or not this finding of the chancellor was against the preponderance of the testimony.

McGehee and his wife both testified that they did not execute this mortgage. They admitted that they had executed a mortgage to Watts & Bro. on a part of this land in the year 1900, and also that they executed another mortgage to Watts & Bro. on all of this land in the year 1903, but,- as before stated, they each denied their signatures to the mortgage now in controversy.

The two mortgages which the witnesses admitted that they executed were acknowledged before an officer other than Lockett, but Beauregard McGehee in his testimony admitted that he had made an acknowledgment before Lockett of a mortgage to Watts & Bro.

Amanda McGehee testified that she could write a little and could write her name, and she stated that she always wrote her own name when signing a deed. It appears from the other deeds exhibited in evidence that her signature was in her own handwriting, but this particular deed was signed by mark. Lockett, the notary public, testified that both McGehee and his wife signed and acknowledged the mortgage. He was called to the witness stand more than once, and in his first statement he said that he was not personally acquainted with Amanda McGehee, and he also said that he had no personal recollection of taking the acknowledgment. But when called to the stand later, he explained his former statement by saying that he meant that he only knew Amanda McGehee and the other McGehee women when he saw them, but was not. personally acquainted with them as he was with the men of the family, with whom he had had frequent business dealings. In the meantime, Amanda Mc-Gehee had been introduced as a witness in Lockett’s presence, and when he was recalled to the stand he stated that he remembered then that she was the woman who signed and acknowledged the execution of the mortgage before him. He stated that he wrote her' name and that she touched the pen, or made her mark.

With the ¡burden of proof on appellees to show that the deed was not properly executed, and with the finding of the chancellor against appellees, on this issue, we should not disturb the findings unless we conclude that it is against the preponderance of the evidence, and we think that the evidence does not preponderate against the finding of the chancellor that the deed was executed.

Counsel for appellees rely on the discussion in Watson v. Billings, 38 Ark. 278, where the relative weight of the testimony of a widow asserting dower and the justice of the peace who took the acknowledgment were discussed, but in that case the deed containing the relinquishment of dower was unrecorded, and the burden was on the other party to prove the execution of the deed. There was a finding also by the chancellor that the relinquishment of dower had not been executed. That case therefore is without any controlling force in the present case, and our conclusion is that appellees have not introduced sufficient proof to overcome the presumption arising from the certificate of the officer and the record of the deed. Counsel also rely on the recent case of Crawley v. Neal, 152 Ark. 232, but that case, too, is inapplicable for it involved the question of admissibility rather than the weight of testimony.

The court, as before stated, upheld the validity of the deed, but declared the foreclosure invalid on the ground that there was no valid appointment of the substituted trustee, for the reason that the appointment in writing was not made on a date before the sale, but after the preliminary steps towards the sale had been taken. There is therefore no finding, either express or implied, on the question whether or not the notice of foreclosure was given.

The trustee’s deed contained a recital to the effect that notice was given in the manner' prescribed in the deed of trust, which was by posting notices.

The statute provides that notices in conformity with mortgages, deeds of trust, etc., shall be published in some newspaper in the county (Crawford & Moses’ Digest, $ 6807), and appellants adduced testimony tending to show that there had 'been publication made in that manner. Walker, the substituted trustee, and Mr. Watts testified on this subject, and each of them stated in his testimony that the notice was published in one of the newspapers at Camden. There was no contradiction of this testimony, but the contention of appellees is that the testimony is too vague and uncertain to base a finding upon. The newspaper was not introduced in evidence, nor was the editor introduced, nor any testimony other than the statements of Walker and Watts. The affidavit provided by statute (Crawford & Moses’ Digest, § 6808)' as evidence of such publication was not introduced, but that was not the exclusive method of proof. Allen v. Allen, 126 Ark. 164.

It is conceded by counsel for appellees that the,testimony of Walker and Watts was competent to prove the- publication of notice of sale, and it was admitted in the trial below without objection, but counsel contend that it is not of sufficient weight to justify a finding on the subject. Our opinion is, however, to the contrary, for this testimony was not contradicted, and while neither of the witnesses could state the language of the notice, they both undertook to give the substance of it, and they stated that it was a notice of the time and place of sale, with a description of the land. When the testimony of each is read as a whole, it shows that they meant to testify positively that the notice contained all of the essential elements to make a valid notice. Counsel comment upon certain language of each of the witnesses as tending to show a vagueness and uncertainty, but the testimony of each must be read as a whole, and we think that their statements, which are not contradicted, are to the effect that they remembered the substance of the notice, and that it contained all the requirements.

We are of the opinion that the evidence was sufficient, and that the sale was valid.

The court erred in holding that the substitution of the trustee had to be in writing, and erred in refusing to permit appellants to show that there was an oral appointment of the trustee before he began to take steps leading up to the foreclosure, even though the indorsement was not made until the day before the sale. It was not essential to the validity of the sale that the appointment of the trustee should be in writing, but written authority was essential in order to confer authority to make the deed. Daniel v. Garner, 71 Ark. 484.

When the deed was executed, there had been authority in writing indorsed upon the mortgage, so the deed was valid and conveyed the legal title — the equitable title having been acquired at the trusteed sale. Daniel v. Garner, supra.

Our conclusion is, therefore, that a valid legal title was acquired under the foreclosure sale and deed.

In addition to that, we think that McGehee was estopped by his own conduct from asserting title to the land, and that appellees, as his grantees, are also bound by his acts. McGehee remained on the land for two years after the foreclosure and paid rent, and then voluntarily removed from the premises and made no assertion of title or claim to the land for more than six years, when he quitclaimed it to Overton, one of the appellants. In the meantime the purchasers at the foreclosure sale and their subsequent grantees occupied the land and made valuable improvements thereon. It is true that McGehee says in one place that he did not know of the foreclosure, but it was publicly conducted, and he remained on the place, paying rent, and then abandoned the land. Counsel for appellees contend that his removal from the land merely amounted to a surrender of possession to Watts & Bro. as mortgagees, but his conduct shows more than that, and it clearly appears that he intended it as a complete abandonment of the land under the foreclosed mortgage. Under these circumstances, he is estopped to assert the invalidity of the foreclosure,for, if there were any defects or irregularities in the foreclosure, he should not have abandoned the premises and knowingly permitted the purchasers and their subsequent grantees to enter and make valuable improvements.

Appellees rely on the case of Wood v. Holland, 64 Ark. 104, as holding that there was no estoppel under circumstances of this kind, but in that case the question was not concerning the invalidity of the sale, but related to the right of redemption, and the court held that a voluntary surrender of possession to the purchaser did not work an estoppel against the assertion of the right of redemption. There is a distinction between the two cases, and a very clear reason for it. Assertion of the right of redemption is not inconsistent with admission of the validity of the sale, and therefore a voluntary surrender of possession is not tantamount to a relinquishment of the right of redemption, whereas such a surrender to the purchaser under a foreclosure sale is inconsistent with the claim of invalidity of the foreclosure. This is but an additional ground why the original mortgagee and his grantees, the present appellees, should be denied the right to attack the foreclosure sale.

Therefore, on each of the grounds stated, the decree will be reversed with directions to dismiss the complaint for want of equity.


text:
    Smith v. Johnson.
    Opinion delivered April 24, 1922.
    1. Landlord and tenant — advances to tenant. — In addition to his lien for rent, Crawford & Moses’ Dig., § 6890, gives a landlord a lien on the tenant’s crop for all “necessary supplies,” etc., to enable the tenant both to make and to gather his crop.
    2. Landlord and tenant — lien for advances. — A landlord seeking to assert a crop lien for supplies' furnished to his tenant must bring himself within the statute (Crawford & Moses’ Dig., § 6890) by proving that the supplies furnished were reasonably necessary to enable the tenant to make and gather the crop.
    3. Landlord and tenant — finding that advances were necessary upheld. — In a suit by a landlord to enforce a lien for necessary supplies furnished to a tenant, evidence held to sustain chancellor’s finding that such supplies were “necessary” within Crawford & Moses’ Digest, § 6890.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Streett, Burnside & Streett, for appellant.
    The statute gives the landlord a preferred lien over any mortgage or other conveyance of the crop, for necessary supplies, to enable his tenant to make and gather his crop. C. & M. Dig., sec. 6890; Tiffany on Landlord & Tenant, vol. 2, p. 1911. The advancement must have been made in good faith. 90 N. C. 276. The lien cannot extend beyond the terms of the statute. 80 Ark. 244; 83 Ark. 119.
    The court will take judicial notice of the seasons. 14 Ark. 286; 31 Ark. 557; 35 Ark. 169.
    The court is not bound to accept as true the statements of a witness. 38 :S. E. 56. The testimony of a witness to that which is a physical impossibility, must be rejected. 112 111. App. 346. .Statements of a party to a suit, although not contradicted by direct testimony, are not conclusive. 106 Ark. 501; 129 Ark. 369. Testimony which is contrary to the physical facts has no probative force. 38 S. W. 308.

      Jas. R. Yerger and N. B. Scott, for appellee.
   McCulloch, C. J.

This appeal involves a controversy between parties who respectively assert liens on a crop of cotton grown during the year 1917 on a certain plantation in Chicot County.

Robert Johnson was a tenant of appellees Trulock & Evans, under a contract that he would pay one-fourth of the crop as rent, and his share of the crop was twenty-eight bales after deducting the one-fourth delivered for rent. His share of the crop, when gathered and marketed, brought $3,142.11, and the account of appellees Trulock & Evans against him for money and supplies aggregated $3,518.93, which was $376.82 in excess of the amount of the proceeds of his share of the crop. Trulock & Evans assert a lien on the crop for the full amount of the account.

Appellant’s intestate, J. T. Smith, was a local merchant, and in July, 1917, took a mortgage on Johnson’s crop and sold him merchandise to the extent of $961, for which a lien on the crop is asserted in the present action.

This action was instituted by appellant’s intestate, and a portion of the crop was taken under attachment. The chancery court sustained the superior lien of Trulock & Evans for the full amount of their account, which left nothing upon which appellant’s intestate could as-, sert a lien.

The cause was heard below upon the accounts of the parties and the testimony of Evans, one of the appellees, who, stated in his testimony that the items of the Trulock & Evans account were correct and that the whole of the account was for supplies furnished to Johnson to make and gather the crop, and that everything furnished was necessary to enable Johnson to make and gather the crop'.

The accounts of the respective parties are conceded to be correct so far as they represented the items of advances made to Johnson, and the only controversy in the case is whether or not the whole of the advances made ¡by Trulock . & Evans was necessary to enable Johnson to make and gather the crop.

It appears from the accounts exhibited with thé pleadings that up to November 24,1917, Trulock & Evans had furnished Johnson money and supplies amounting, in the aggregate, to $1,879.20, and had received about three-fourths of the crop, which overpaid the account. The account shows that on and after that date Trulock & Evans furnished Johnson money and supplies to the extent of $1,639.73.

Counsel for appellant concede that the account up to November 24 represented items for advances which were necessary to make and gather the crop, but they contend that the large amount furnished thereafter was not shown to be necessary to gather the crop, and that that part of the account does not constitute a lien on the crop as against the mortgage lien of appellant.

The amount of the account furnished after November 24, and after about three-fourths of the crop had been gathered, does indeed seem to be unreasonable on its face, but there is no testimony bearing upon that feature of the case except that of Evans himself, and he stated positively and unequivocally that each item furnished was necessary to enable the tenant to make and gather the crop. Counsel for appellant did not cross-examine him at all, and he was not asked to go into details concerning any of the items of the account. He was not asked to explain why so large an amount was necessary. He was not asked concerning the condition of the crop nor the lateness of the season nor the size of the tenant’s family for the purpose of ascertaining how much was necessary for him to be furnished. In other words, learned counsel saw fit to rest their client’s case solely upon the apparent unreasonableness of the account upon its face.

It is true that we are not bound by the uncontradicted statements of Evans, who was one of the interested parties, but where there is no contradiction of his testimony and no effort to have him explain the account and the circumstances under which it was furnished, we do not feel that we would be justified in disregarding his positive statements, which counsel themselves did not attempt to break down by cross-examination.

The statute (Crawford & Moses’ Digest, § 6890) gives a landlord, in addition to his lien for rent, a lien on the crop for all “necessary supplies, either of money, provisions, clothing, stock, or other necessary articles,” to enable the tenant to make and gather the crop. The lien is not confined to advances to enable the tenant merely to make the crop; it also, covers supplies furnished for gathering the crop.

A landlord asserting a lien must bring himself within the terms of the statute in order to enforce the lien against a third person. Few v. Mitchell, 80 Ark. 243; Kaufman v. Underwood, 83 Ark. 118. It devolves upon the landlord in such a ease to prove that the supplies 'furnished were reasonably necessary to enable the tenant to make or gather his crop, and it is usually a question of fact in each case for the determination of the trial court or jury whether or not the advances ao furnished were reasonably necessary for that purpose. Bourland v. McKnight, 79 Ark. 427; Earl v. Malone, 80 Ark. 218.

In the present case we are unable to say that the apparent unreasonableness of the amount of the account for supplies furnished during the gathering season was sufficient to overcome the positive statements of one of the witnesses to the effect that each item was necessary to enable the tenant to gather the crop. In that state of the proof the finding of the chancellor on that issue should not be disturbed.

Affirmed.


author: Hart, J.

text:
    Lybrand v. Watkins Hardware Company.
    Opinion delivered April 24, 1922.
    1. Evidence — varying written contract by parol. — In an action on account against a partnership, where the written articles of partnership expressly obligated the partnership to assume all liabilities and indebtedness owed by a former firm, parol evidence was inadmissible to prove that only such debts of the old partnership as were exhibited at the time were intended to be assumed by the new partnership.
    2. Trial — direction of verdict.- — In an action on an account against a partnership, where the amount of the indebtedness was undisputed, it was not error to direct a verdict.
    Appeal from Polk 'Circuit Court; James 8. Steel, Judge;
    affirmed.

      Norwood <& Alley, for appellant.
    The itemized statement required by appellant at the time he entered into the contract makes clear the intention of the parties, and that he became liable only for such debts of the old firm as were there exhibited. The agreement should be considered from the circumstances and viewpoint of the parties at the time. 90 Ark. 272 ; 113 Id. 174; Wisconsin & Ark. Lumber Go. v. Fitshugh, 151 Ark. 81; 105 Ark. 421; 3 Id. 222; 63 Id. 63.
    An incoming partner is not bound by the previous debts of the concern unless he makes himself so by express agreement. 49 Ark. 457; 77 Cal. 440 ; 64 Ga. 243; 101 111. App. 23; 27 Md. 645; 78 Ya. 567; 107 N. Y. 260.
    The testimony of appellant to the effect that he only assumed his part of the debts of the old firm mentioned in the exhibit to the contract was erroneously excluded. It was admissible to explain any apparent ambiguity or conflict raised by the eighth paragraph, and raised a jury question. 89 Ark. 368; 81 Id. 337.

      Minor Pipkm, for appellee.
   Hart, J.

The Watkins Hardware Company brought this suit in the circuit court against B. Hope and Early, Jones & Lybrand, a partnership composed of J. H. Early, J. E. Jones and L. H. Lybrand, to recover the sum of $1,524.43 for goods, wares and merchandise.

The firm of Early & Jones was the principal contractor for the construction of a highway in Polk County, Ark., and B. Hope was a subcontractor. The firm of Early & Jones, by a contract in writing, made itself responsible to the Watkins Hardware Company for the account of B. Hope. The latter purchased hardware from the Watkins Hardware Company to the amount of $1,524.43, which was due and unpaid at the time this suit was brought. Subsequently $1,216.61 was paid on the account, leaving .a balance due at the time of the trial of the case of $307.88.

On the 12th day of October, 1920, J. H. Early and J. E. Jones entered into a contract with L. H. Lybrand whereby he became a member of the film and interested in the construction of the road to be improved by the firm in Polk County, Ark. The written contract,. after reciting that Lybrand had purchased a one-third interest in the firm and in the aforementioned contract recites that Lybrand assumes ‘ ‘ a one-third of the liabilities and indebtedness of said firm, and an itemized statement of all money, debts, mules and. horses, machinery and tools and all other property owned by said firm, Early & Jones, up to date, hereto attached and made a part hereof,” etc.

The contract of the firm with the road improvement district is attached to the contract of partnership and forms a part of it. See. 8 of the partnership contract reads as follows: “It is further agreed and understood by the parties hereto that all machinery, tools, horses and mules, money and chattels, and liabilities incurred and indebtedness owed under the former firm of Early & Jones is hereby assumed jointly by the firm of Early, Jones & Lybrand.”

The defendant, Lybrand, offered to introduce in evidence a list of the debts owed by Early & Jones at the time he was received into the partnership and to testify that he only contracted to pay the indebtedness of the old firm which was exhibited to him at that time.

The court sustained an objection to this testimony offered by the defendant and directed the jury to return a verdict for the plaintiff.

L. H. Lybrand was the only member of the firm served with summons, and judgment was rendered against him in favor of the plaintiff in the sum of $307.80. To reverse that judgment, Lybrand has duly prosecuted an appeal to this court.

Lybrand seeks to reverse the judgment on the ground that he was only liable for the debts of the firm of Early & Jones which were exhibited to him at the time he entered into the contract of partnership with them, and that it was competent to prove by parol evidence that the debt sued on was not included in the list of debts of the firm so exhibited to him.

We can not agree with the defendant in his contention. The first clause of the contract which is recited above shows that Lybrand assumed one-third of the liabilities and indebtedness of the firm of Early & Jones. It is true that the contract refers to a statement of all the money, debts, machinery, tools and all other property owned by the firm. This, however, does not mean the debts owed by the firm, bnt it means the debts that were due the firm. This is shown by the eighth clause of the contract which is copied above. It in plain terms provides that all the property of the firm is to be owned jointly and that all the indebtedness and Labilities of the former firm of Early & Jones was assumed by the firm of Early, Jones & Lybrand. The contract was complete in itself. It includes everything necessary to make a complete contract and there is nothing in its terms to indicate that it was not intended to express the whole agreement between the parties.

Therefore, the court properly held that all prior negotiations leading up to the written contract were merged therein and that the written contract could not be varied or modified by parol evidence. Goodwin v. Baker, 129 Ark. 513; Armstrong v. Union Trust Co., 113 Ark. 509; Cherokee Const. Co. v. Prairie Creek C. M. Co., 102 Ark. 428; and Zearing v. Crawford, McGregor & Camby Co., 102 Ark. 575.

The list of indebtedness which Early & Jones exhibited to Lybrand was only a matter of inducement for the latter to enter into the contract of partnership. It was only one of the matters in the course of negotiation and did not form a part of the contract of partnership itself. Therefore, the court properly held that the plain import of the language used in the written agreement could not be varied by parol evidence. The amount of indebtedness was undisputed, and the court properly directed the jury to return a verdict in favor of the plaintiff against the defendant, Lybrand, for that amount.

Therefore, the judgment will be affirmed.


author: Hart, J.,

text:
    Huddleston v. Steuart.
    Opinion delivered April 24, 1922.
    1. Libel’ and slander — evidence in mitigation op damages. — In an action for slander, testimony that the statement in question was based on a current report concerning plaintiff was inadmissible in mitigation of damages where the court’s instructions limited the jury’s consideration to damages caused by defendant’s statement.
    2. Trial — necessity op request for instructions. — Where an instruction as to a counterclaim for assault failed to state the duty ‘of the assailant to withdraw in good faith before he could claim the right of self-defense, and, on objection by counsel, the court offered to submit an instruction on that subject if counsel would prepare it, on his failure to prepare it the giving of the original instruction was not error.
    3. Assault and battery — instruction as to self-defense. — An instruction as to assault that if the assailant acted in necessary self-defense from real and honest conviction of the danger, the verdict should be for him, was erroneous in omitting the requirement that the assailant must have acted without fault or carelessness.
    Appeal from Pike Circuit Court; James S. Steel, Judge;
    reversed.
    STATEMENT OE EAOTS.
    This was an action of slander brought by R. M. Steuart against John W. Huddleston. Huddleston denied the allegations of the complaint, and by way of cross-complaint sued Steuart for damages for unlawfully assaulting him.
    According to the evidence adduced in behalf of the plaintiff, Steuart, he was a candidate for sheriff before the Democratic primaries in Pike County, Arkansas, and the defendant, Huddleston, in order to secure votes against him, told some of the voters that he, Steuart, had killed his father and had cursed his mother on her deathbed. Steuart did not kill his father and did not curse his mother on her death-bed. He had done nothing to his parents to give rise to such a report, and he suffered great humiliation and anguish of mind when he was informed of the language used about him by Huddleston.

      On the part of the defendant Huddleston, evidence was adduced tending to show that Steuart about twenty years before had had a row with his father; that he had struck his father with his fist; that his father became sick in a few days and died in about a week thereafter from pneumonia. There was also introduced the evidence of a physician to the effect that pneumonia is sometimes caused by a blow.
    Huddleston was a witness for himself on his cross-complaint. According to his testimony, Steuart followed him into Ballard’s store in the town of Murfreesboro and tapped him on the back with his open hand and asked him why he not spoken to him before he came into the store. Huddleston had passed Steuart just before he entered the store. Previous to that time Steuart had threatened to sue Huddleston for slander on account of the remarks Huddleston had made about Steuart killing his own father. They had some words about this in Ballard’s store, and Huddleston told Steuart not to get it into his head that he was afraid of him. Huddleston told Steuart, however, that he did not want any trouble with him, and then went back into the store and put both hands upon the counter. As he was standing there looking down towards the floor, Steuart hit him above the right eye with his right fist and knocked him senseless. .Huddleston went down on his hands and knees and tried to get up. Steuart hit him again behind the right ear. Steuart knocked Huddleston to his knees the second time and then kicked him in the left side. Huddleston was going on a journey to a distant part of the county when he encountered Steuart, and had a pistol. He did not at any time attempt to use the pistol on Steuart or to hurt him in any other way. Huddleston was badly hurt by the blow he received from Steuart. Huddleston was about 59 years old and weighed about 156 pounds. Steuart was 35 years old, and was a very stout able-bodied young man.
    Steuart was a witness for himself. According to his testimony, he went into Ballard’s store to talk to Huddleston about the slander case he anticipated bringing against him. During the course of their conversation Steuart saw the pistol which Huddleston was carrying, and Huddleston became angry and attempted to draw his pistol and shoot Steuart. Steuart then struck him with his fist and knocked him down on a bench. He did not strike Huddleston except to keep him from shooting him. Steuart did not make any attempt to jump on Huddleston or to kick him. About twenty years before that time Steuart’s father had gotten drunk and tried to fight him. Steuart pushed his father away, and did not strike him at all.
    Each party introduced evidence in corroboration of his own testimony. The above statement, however, contains the material evidence introduced by each party and is sufficient to present the issues raised by the appeal.
    Among other instructions the court told the jury to first consider whether Steuart was entitled under the law and the evidence to recover of Huddleston, and, if. so, to find the amount. The jury was then told to consider whether Huddleston was entitled to recover of Steuart, and, if so, to find the amount.
    The jury was also told that, if it should find that both should recover, it should set-off the amount found in favor of each party and render a verdict for the difference in favor of the party for which it should find the larger amount.
    The jury found a verdict for the plaintiff, Steuart, and from the judgment rendered the defendant Huddles-ton has duly prosecuted an appeal to this court.

      Tompkins, McRae. <& Tompkins and O. A. Featherston, for appellant.
    The defendant could properly be held responsible only for such damages as were caused by his own statements, and not for the statements made by others; he was therefore entitled to prove, in mitigation of damages, that he had heard these statements from various different sources and that they had been current in the county for many years. 118 Ark. 81.
    The undisputed evidence shows that Steuart was the aggressor in the assault. The question of self-defense was not properly in the case, and instruction 7 was objected to generally on that ground, and specifically because it ignored the duty on his part to make an honest effort to withdraw if he was the aggressor. We do not think the law imposes the duty both to point out the defect in an instruction and to ask a correct instruction covering the point. 141 Ark. 346. Having objected on the ground that self-defense was not an issue in the case, the effect of compliance with the court’s suggestion to preparo an instruction would have been to waive the error in giving an instruction that subject. 93 Ark. 589; 94 Id. 524; 88 Id. 138. ¡See also 135 Ark. 520, 527; 99 Id. 576; 62 Id. 286; 69 Id. 648.
    Instruction 8 given by the court was erroneous in that it did not state that Steuart must have acted without fault or carelessness on his part. 75 Ark. 350; 59 Id. 132; 67 Id. 594; 69 Id. 649; 139 Id. 433; 116 Id. 17.

      W. T. Kidd, for appellee.
    The appellant did not offer to prove appellee’s general reputation, but only that witness, Huddleston, had heard the rumor and repeated it. It was not competent, and was properly excluded. 95 Ark. 207; 55 Id. 501; 56 Id. 103; 52 S. W. (Ky.) 934.
    If instruction 7 was open to the objection made by the appellant he should have asked a correct instruction covering the point. 47 Ark. 196; 80 Id. 354; 86 Id. 360; 95 Id. 409; 129 Id. 324; 67 Id. 416; 128 Id. 572; 114 Id. 399; 74 Id. 444; 75 Id. 142; Id. 373; 77 Id. 455.
    Instruction 8 was not erroneous. The term, “reasonable man” and “without fault or carelessness,” might either have been correctly used in the instruction. 29 Ark. 248; 55 Id. 593; 37 Id. 257; 77 Id. 97 ; 102 Mass. 155; 97 Ala. 55; 101 Cal. 229 ; 80 Ark. 92; 81 Iowa 138; 164 Ul S. 492, 498; 69 Ark. 654.
   Hart, J.,

(after stating the facts). It is first insisted by counsel for the defendant that the judgment should be reversed because the court erred in refusing to allow the defendant to testify to certain facts before the jury. The defendant Huddleston, while on the witness stand, was asked from whom he got the information in regard to Steuart. The court sustained an objection to the question, and the defendant excepted to the ruling of the court and offered to state as a witness that he had heard the rumor about Steuart having killed his father just as he had stated it to the witnesses for five years, and that he had simply'repeated what had been current rumor in the community for several years.

Counsel for the defendant insists that he was liable only for the damage caused by his own remarks, and that the offered testimony was admissible in mitigation of damages. Counsel invoke the rule laid down in Simonson v. Lovewell, 118 Ark. 81, to the effect that in awarding compensatory damages the jury might consider the fact that plaintiff bore the reputation of being a defaulter, or that his reputation for morality was bad in mitigation of damages. This principle had no application in the case at bar. Steuart’s reputation for morality or immorality could not be established by showing that the remarks made by Huddleston were current rumor in the community. Of course Huddleston was only liable for the damages caused by his making the remarks, and was not liable for damages caused by other persons making the same remarks; but the instructions given by the court to the jury fixed the damages to the amount shown by the evidence in the case and thus confined the damages to the remarks made by Huddleston, for none other were proved to the jury. It follows that this assignment of error was not well taken.

It is next insisted that the court erred in giving one of plaintiff's instructions on the question of self-defense. It is insisted that 'Steuart followed Huddleston into Ballard’s store and that the instruction ignored the duty devolving upon Steuart to attempt in good faith t'o withdraw or abandon the difficulty before he could invoke the doctrine of self-defense. It is well settled that the court can not cover all the phases of a case in one instruction, and the record shows that when counsel made the objection now complained of to this instruction, the trial court told them that if they would prepare an instruction on self-defense, fully defining it he would give it. This counsel declined to do, and we do not think the court under the circumstances erred in giving the instruction complained of.

It is next insisted that the court erred in instructing the jury on the measure of damages. We do not deem it necessary to set the instruction out. It is sufficient to say that it is in accordance with our previous decisions on the question. Townsley v. Yentsch, 98 Ark. 313; Taylor v. Gumpert, 96 Ark. 354; and Murray v. Galbraith, 95 Ark. 199.

It is next insisted that the court erred in giving instruction No. 8, which is as follows: “The court instructs the jury that the plaintiff was entitled to act upon appearances, and, if the language and conduct of Huddleston Was such as to induce in the mind of a reasonable man, under all the circumstances then existing and viewed from the standpoint of Steuart, a fear that death or great bodily harm was about to be inflicted by Huddles-ton upon him, it does not matter if such danger was real or only apparent, and, if Steuart acted in necessary self-defense from real and honest conviction as to the character of the danger, if any, your verdict should be for Steuart on the cross-complaint; even though he was mistaken as to the extent of danger. ’ ’

A specific objection was made to this instruction on the ground that the plaintiff must have acted without fault or carelessness on his part before he could invoke the doctrine of self-defense. In this contention we think counsel are correct. It is true that the defendant’s standpoint is the proper one from which to view the immineney of the danger, but such belief on the part of the defendant must be an honest belief, and not due to his own negligence. Mere honesty, however, is not in itself sufficient. The defendant must be free from fault or carelessness. If his belief is due to his own negligence, his honesty is not sufficient to justify the assault as having been done in self-defense. Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 594; Hoard v. State, 80 Ark. 87; Pickett v. State, 91 Ark. 570, and Dean v. State, 139 Ark. 434. It may be said in this connection that the negligence which will prevent a homicide from being justifiable is negligence on the part of the slayer in making his self-defense, and not some prior negligence. Elder v. State, 69 Ark. 648.

It will be noted that, although specifically requested to do so, the court refused to incorporate into the instruction that the defendant must have acted without fault or carelessness on his part before he could justify the assault as having been done in self-defense. This ruling of the court necessarily resulted to the prejudice of the defendant. Under the instruction as given the jury might have found for Steuart on the theory that he honestly believed that he was about to receive great bodily harm at the hands of Huddleston, regardless of the fact of whether he was negligent or not in forming that 'belief. This is not the law. As we have just seen, he must have acted without fault or carelessness on his own part.

For the error in giving instruction No. 8, as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.


text:
    Clifford v. McAlester Fuel Company.
    Opinion delivered April 24, 1922.
    Executors and administrators — personal liability of executors.— An executor purchasing coal to complete ditching contracts entered into by his testator in pursuance of direction in the will “to do all things necessary for the proper transaction of any old or new business which may seem to them [the executors] advisable” was not personally liable threfor, in view of the fact that the charge for the coal was made on the seller’s books to the estate.

      Appeal from Pulaski Circuit Court, Third Division; Archie House, Judge;
    reversed.
    STATEMENT OF FACTS.
    The McAlester Fuel Company sued John F. Clifford to recover $3,816.34 alleged to be due it for coal. The defendant denied liability.
    The plaintiff is a corporation engaged in the business of buying and selling coal at McAlester, Okla. K. P. Alexander of Little Rock, Ark., was its agent, and as the representative of the plaintiff, had been selling coal for it in large quantities to Edgar J. Hahn for several years prior to his death. Hahn was a contractor and bond broker. In August, 1919, Hahn became ill and was carried to. the St. Vincent’s Infirmary in Little Rock, Ark. On the 16th day of August, 1919, he executed his will and died on the 20th day of August, 1919, in the infirmary. Hahn at the time of his death had entered into contracts with improvement district commissioners to construct seven drainage ditches and one road. The drainage contracts were far advanced in the course of construction. At the time of his death Hahn had large crews of men, a large amount of material, and a large amount of machinery which were used in the construction of said drainage pror jects. These contracts all provided for the completion of the improvement within a certain period of time and provided for damages against the contractor in the event they were not completed on the date designated.
    The thirteenth and fifteenth clauses of Hahn’s will are as follows:
    “13. I hereby nominate, constitute and appoint Walter E. Orthwein of St. Louis, Mo., and Jno. F. Clifford, of Little Rock, Ark., my confidential friends, executors of this my last will and testament, and direct that neither of them shall be required to give bond or other security for the proper discharge of their duty hereunder. ’ ’
    “15. I hereby authorize and direct my said executors to do 'all things necessary for the proper settlement of my estate, the payment of my debts and the transaction of any old or new business which may, to them, seem advisable. I hereby authorize, direct and empower them to execute, as in their discretion may seem proper, all deeds, leases or contracts, conveying either' real or personal property, either in fee, absolute, as security or otherwise, and further direct that their acts in so doing be not questioned.”
    Walter E. Orthwein was Hahn’s partner in the bond brokerage business with headquarters at St. Louis, Mo. He desired to wind up their partnership as surviving partner, and for that reason did not qualify as executor under the will. J. R. Vinson was appointed in his stead, and with John F. Clifford duly qualified as executor under the will of Edgar J. Hahn, deceased, and after consultation it was deemed to the best interest of his estate to carry out the drainage contracts which Hahn had obligated himself to perform.
    Orders from the probate court to that effect were obtained, and the orders were couched in language as broad as the clause of the will above quoted. Hahn was a customer1 of the McAlester Fuel Company and was accustomed to buy large quantities of coal from it to carry out’ his drainage and road contracts. After his death his executors continued to buy coal from the’ plaintiff to be used in carrying out these, drainage contracts.
    The McAlester Fuel Company understood that the coal was purchased for this purpose and charged the same to the estate of Edgar J. Hahn, deceased. This was done after1 Alexander had investigated the matter .and had been assured by the executors that the estate was solvent. The coal was furnished and charged exclusively to the account of Edgar J. Hahn’s estate.
    Suit was first brought against Hahn’s executors with a view to holding his estate liable for the account sued on herein. That suit was dismissed, and subsequently the present suit was instituted for the purpose of holding Clifford individually liable. J. R. Vinson had died before the coal in question had been purchased.

      The circuit court rendered judgment in favor of the plaintiff for the amount sued for, and to reverse that judgment, the defendant has duly prosecuted this appeal.

      J. II. Carmichael and Coclcrill S Armistead, for appellant.
    Every man has the right to dispose of his property hy will as he pleases, with only such limitations as the statute imposes (87 Ark. 243) and such will becomes the law to the personal representative of the deceased. 32 S. E. 16; 34 Ark. 251. The will in question instructed the executor to proceed with certain contracts if necessary for the preservation of the estate, and such acts on the part of the executor in carrying out the will became a charge against the estate and not against the executor individually. (See 159 Calif. 755; 116 Pac. 47; 129 S. W. 823, 29 L. R. A. (N. S.) 264; 8 S. E. .180; 32 S. E. 16; 82 Ga. 177; 82 N. E. 194; 1 Daly 360; 10 Ala. 608; 51 Atl. 996.
    The executor could at least make such purchases and .do such things as were necessary to wind up the estate, or prevent waste. 115 Pac. 717; 69 Pac. 272; 46 S. W. 859; 53 Mo. App. 225; 52 N. E. 1067. See also Rainey-Milíurn Co. v. Ford, 146 Ark. 563.

      Sam T. Poe, Tom Poe, Malcolm W. Gannaway and A. Carlyle Gannaway, for appellee.
    An executor is'personally liable on a contract made by him, no matter whether the goods be charged to him personally or to the estate. 10 Ves. Jr. 110; 24 C. J. 60; Walker on Executors 228; 3 Williams on Executors 1689; 113 N. Y. 591; 2 How. (H. S.) 560; 32 N. J. Eq. 791; 34 Bea. 434; 12 N. Y. S. 389; 28 N. E; 254; 152 N. Y. S. 173; 135 Pac. 724; 6 Pac. 358; 38 Cal. 85; 20 Fla. 359; 7 Conn. 306; 72 Ala. 224; 5 Gray 403; 7 B. & C. 202; 56 Ark. 159; 34 Ark. 211; 61 Ark. 410.
    Neither an order of court nor a direction in the will in any manner affects the personal liability of the executor to those with whom he contracts. 41 N. Y. 315; 34 Ark. 206.
   Hart, J.

(after stating the facts). The theory of the court ¡below, and that upon which it is sought to uphold the judgment, is that a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. The general rule and numerous cases bearing on the question are collected and reviewed in Ann. Cas. 1915-C, at p. 367; 40 L. R. A. (N. S.) 201, and 3 A. L. R. pp. 1604 and 1608.

The general rule is that the claims and liabilities are fixed at the time of the death. With regard to these suits they must be brought by and against the personal representatives in their character as such. With regard to contracts made by the personal representatives themselves, in the course of administration, they are personal, although for the benefit of the estate. The reason is that the executor or administrator' has no right to make a contract for a dead man. Hence the representative becomes the contracting party and is individually liable. Bomford v. Grimes, 17 Ark. 567; Yarbrough v. Ward, 34 Ark. 204; Tucker v. Grace, 61 Ark. 410; and Bryan v. Craig, 64 Ark. 438.

In the application of the general rule in Altheimer v. Hunter, 56 Ark. 159, it was said that, it was not within the ordinary authority of a probate court to empower an administrator to continue the mercantile business of the deceased, and that an administrator is not empowered to bind the estate of á dead man by making a contract for him. The reason is that the death of a trader puts an end to his business and his executor or administrator has no authority to continue the business unless such authority is conferred by statute or by the terms of a will. The assets pass to the executor or administrator to be collected and applied to the payment of' debts, and the remainder to be distributed to the heirs or devisees.

Again in Altheimer v. Hunter, supra, the court said that an executor may continue the business of his testator when empowered to do so by will, but that he becomes personally liable for all tbe debts he contracts in the prosecution of his trust. This language was not necessary for a decision of the issue presented by the appeal in that case, but it is in accord with the general rule on the question as shown by the decisions cited in the .case notes above referred to.

A leading case on that phase of the question is Willis v. Sharp, 113 N. Y. 586, 4 L. R. A. 493. In that case it was recognized that a testator may authorize or direct his executor to continue a trade or to employ his assets in trade or business; and that such authority will protect the executor from responsibility to those claiming under the will in case of loss without his fault or negligence, and also entitle him to indemnity out of the estate for any liability lawfully incurred within the scope of the power.

The court said, however, that it is the settled doctrine of the courts of common law that a debt contracted by an executor after the death of his testator, although contracted by him as executor,binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. The principle upon which the case was decided was that an executor may disburse and use the funds of the estate for the purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. Austin v. Munro, 47 N. Y. 360.

Again in Exchange Nat. Bank v. Bettes, (Kan.) 3 A. L. R. p. 1604, it was held that the doctrine that the only effect of contracts made by an executor or administrator is to bind himself individually applies to a contract made' by the personal representative, in attempting to carry on and complete a building contract entered into by the decedent in his lifetime.

It was contended in that ease that an exception to the general rule would arise in case-of building contracts entered into by the decedent during his lifetime, which remained incomplete at the time of his death, and which the executor or administrator elected to complete. In that case the executor1 was not directed by the will of the testator to carry out his contract and the case falls within the general rule that the executor can not make a contract for a dead man without ¡being authorized to do so by will or by statute expressly conferring such power. The testator may not have had in milid any one in whom he might have placed confidence sufficient to authorize him to carry out his contract. He might have deemed it more prudent to risk the loss which his estate might suffer in damages by reason of his death preventing his completion of his own contract. In any event, his will did not give his executor power to complete his contract and for that reason he could only administer the estate in due course of law and distribute the assets to the devisees after paying the claims probated against the estate. As we have already seen, he could not make a contract for his decedent without some authority to do so.

The cases where the testator has directed his executor to carry on his business come nearer being like the present case than any to which our minds have been directed ; but such cases do not, in the opinion of the court, quite reach to the point here involved. In such cases the primary object of carrying on the business is for the profit to be made from continuing it. It is necessarily a new adventure and must be conducted by the executor independently of any direction or obligation on the part of his decedent. The executor would create new liabilities not expressly authorized by his decedent nor dependent upon any obligations incurred by him. Existing creditors and devisees under the will are not required to have the payment of their debts postponed to await the result of future adventures; and in such cases the executor cannot jeopardize the assets of the estate by making new and independent contracts, although they may be made for the benefit of the estate.

We think there is a marked distinction between a testator appointing a personal trustee in his will to carry on his business generally and directing his executor to carry out a contract, the obligations of which he had assumed in his lifetime and which would become a charge upon his estate. In the one case, the executor is directed to carry on a new business for profit and in the other to wind up an old one for the purpose of distributing the assets of the estate to those entitled to them.

There are material facts in the present case which did not enter into the discussion or decisions of any of the cases collected above. We recognize the general rule to be that the powers, duties and obligations of the executor or administrator with respect to the estate are defined and limited by the will or statute. He has no interest in the assets, and therefore cannot charge them by any independent and new contract unless authorized by statute or the will.

Hahn made his will while lying sick in the hospital and died four days later. At the timé, he was stricken, he had various drainage ditches in the course of construction under contracts which were binding upon him and which would become charges against his estate. There had been a material rise in the prices of labor and materials since he had executed the contracts. He had the necessary machinery on hand with which to carry out his contracts. He had on hand a large amount of supplies and materials and was actively engaged in carrying out his contracts when he became sick. Doubtless he recognized the serious loss to his estate if no provision was made by him for completing his contracts. In the fifteenth clause of his will, in explicit and comprehensive language, Hahn conferred authority upon his executors to complete his unfinished contracts after his death. His evident purpose was to put his executors in his place with like authority as himself in the premises. The trust sought to be accomplished was not primarily to make a profit for the estate out of his business, but to dispose of and realize upon the assets to the best advantage. The language used is very broad and comprehensive. The testator directed his executors to do all things necessary for the proper settlement of his estate, the payment of his debts, and the transaction of any old or new business which seemed advisable to them. They were empowered to execute, as in their discretion seemed proper, all deeds, leases or contracts, conveying either real or personal property in fee or as security or otherwise. The testator further directed that the acts of his executors in the premises should not be questioned and that neither of them be required to give bond.

Thus it will be seen that the testator had unlimited confidence in the honesty and business ability of his executors.

The language of the will is'even broader than that in Ferguson v. Ferguson, 148 Ark. 290, which we construed to authorize the executor to mortgage the land of his testator for the purpose of borrowing money to enable him to cultivate the land for the current year. The executors in the case at bar were made the personal trustees of the testator for the purpose of carrying out his contracts and thus preventing great loss to his estate. Evidently there was no intention of continuing the business for the mere purpose of profit. The grant of the power and the imposition of the duties upon the executors were inconsistent with their personal liability in the premises. Such a trust could not be carried on without the expenditure of large sums of money, and the idea that the executor was expected to assume the burden thereof and the estate not be liable is utterly inconsistent with the terms of the will and the relation of the executors to the estate. They were given absolute power to sell or mortgage the estate, and the will further directed that their acts in so doing should not be questioned. The idea that the executors should be personally liable for expenditures made by them in carrying out the trust is inconsistent with the’express power conferred upon them to make such contracts as they deemed necessary and to sell or mortgage the estate for that purpose.

The record shows that the plaintiff had been supplying. Hahn with coal to be used in carrying out his drainage contracts, and that it supplied the coal to his estate for the purpose of completing them. The plaintiff charged the estate with the coal sold, and the court is of the opinion that the peculiar circumstances of this case bring it within an exception to the general rule, and that the language of the will was sufficiently broad and comprehensive to empower the executors to make the contract sued on for the benefit of the estate. In short, the contract sued upon was made pursuant to express authority conferred by the will upon the executors to enable them to carry out contracts, the obligations of which had been incurred by the testator in his lifetime.

It follows that the court erred in finding for the plaintiff, and the judgment will be reversed and the cause remanded for further proceedings according to law.


author: Smith, J.

text:
    Walton v. Arkansas County.
    Opinion delivered April 24, 1922.
    Taxation — recovery op erroneous assessment. — Crawford & Moses’ Dig., § 10180, providing for recovery of taxes erroneously assessed, has no application to the special road tax of ten cents an acre on lands belonging to nonresidents and situated in Arkansas County provided by Acts 1917, vol. 2, p. -2173; the. former section referring to assessments made by the 'assessing officers or boards.
    Appeal from Arkansas Circuit Court, 'Southern District; George W. Clark, Judge;
    affirmed.
    Appellant pro se.

    The authorities agree that an unconstitutional statute is no statute, has no power, cannot be enforced. There was therefore in this case no taxing power. This is not a case of erroneous assessment, but the tax was invalid. There was a clear excess of power, and the property should have been exempt from the assessment of this nonresident land tax. Appellant was entitled to a refund of the taxes paid, under the ¡provisions of the statute, C. & M. Digest, § 10180, 90 Ark, .413; 46 M,
      358; 37 Cyc. 1172; 6 R. C. L. 117; Am. & Eng. Ann. Cas. 1916-C, p. 227; Id. 1913-A, p. 471.

      W. J. Wagoner and Botts <& O’D.aniel, for appellee".
    The tax was not paid under compulsion "within the legal meaning of the term, but, on the contrary was paid without protest, as found by the trial court. An illegal tax voluntarily paid cannot be recovered by the taxpayer. 107 Ark. 24; 98 ü. S. 541, 543; 97 Id. 181. 'See also 37 Cyc. 1179; Id. 1180; 65 Ark. 155, 157; 46 Id. 358.
   Smith, J.

This cause was heard in the court below on an agreed statement of facts, which may be summarized as follows. Walton is a nonresident of the State and is the owner of 1,573 acres of land in Arkansas County, and when he paid the taxes thereon for the year 1919 there was included in the taxes charged against him a special nonresident land tax of ten cents per acre. Walton paid this tax without knowing that it had been included in his receipt. This acreage tax was levied pursuant to a special act of the 1917 session of the General Assembly (Acts 1917, vol. 2, p. 2173) regulating the working of public roads in Arkansas County and providing a tax therefor. This act was held unconstitutional by this court in the case of White River Lumber Co. v. Elliott, 146 Ark. 551, on December 20,1920. It was stipulated that, while Walton did not know this tax had been charged against his lands and included in his receipt, his lands would have been returned as delinquent and sold by the collector of taxes if this tax had not been paid.

After the decision of this court holding the special act unconstitutional, Walton filed a petition in the county court of Arkansas County asking the refund of this tax. The petition therefor alleged that of the tax so paid $24 had been placed to the credit of Road District No. 7, and $123.30 to the credit of Road District No. 6. These districts were not improvement districts. They were two of the districts into which the county had been divided under the road law for general road working purposes. The petition for the refund of this tax was filed in the office of the clerk of the county clerk on May 3, 1921, and was disallowed by the county court on the same day. A similar order was made by the circuit court on appeal from the county court.

In the case of White River Lbr. Co. v. Elliott, supra, the lumber company paid its taxes under protest and notified the collector at the time that he would be called upon to refund the acreage tax then paid, and suit was brought against the collector while these taxes were still in his hands. We held in that case that, as the collector could have sold the lands for the non-payment of the taxes, and would have done so if they had not been paid, this would have constituted a cloud on the title, to prevent which the owner had the right to pay the taxes under protest and then sue the collector' to recover them.

This proceeding was not instituted until more than a year had elapsed after the payment of the tax; in fact, it is a proceeding under section 10180 of Crawford & Moses’ Digest, which reads as follows: “In case any person has paid or may hereafter pay taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact, the said court shall make an order refunding to such person the amount of the county tax so erroneously assessed and paid, and, upon production of a certified copy of such order to the Auditor, he shall draw his warrant on the State Treasurer for the amount of "State tax erroneously assessed and paid. Such warrant shall be paid out of the appropriation to pay moneys arising from the erroneous assessment and collection of taxes. But in case there shall be no appropriation, or the appropriation shall have been exhausted, then the Auditor shall issue a certificate of indebtedness therefor.”

It is the insistence of the petitioner, that this section of the statute, as interpreted by this court in the case of Clay County v. Brown Lumber Co., 90 Ark. 413, entitles him to have an order made by the county court directing the refund of the acreage tax which he paid.

We think, however, that the section quoted above does not authorize this proceeding. It is true that, in interpreting this section (section 7180, Kirby’s Digest) in the case of Clay County v. Brown Lumber Co., supra, the court said: “If the property paid on was exempt from taxation, or if the property was not located in the county, or if the tax was invalid, or if there was any clear excess of power granted, so as to make the assessment beyond the jurisdiction of the assessing officer or board, then the provisions of Kirby’s Digest, § 7180, give the owner a remedy for refunding of such taxes thus erroneously paid.” But this language was used with reference to an “erroneous assessment,” and the case of Lyman v. Howe, 64 Ark. 436, defines what is meant by an assessment of land for taxation, as follows: “The duty to assess devolves upon the assessor. Sand. & H. Dig., § 6485. No one else can perform that duty. Welty, Assessments, sec. 10. ‘An assessment is an official listing of persons and property, with an estimate of the property of each, for the purpose of taxation.’ Cooley, Tax. p. 351; Welty, Assessments, sec. 2.

“ ‘All property subject to taxation shall 'be taxed according to its value. ’ Const. Ark. art. 16, sec. 5. So the fixing of some value upon property is indispensable to its assessment for taxation. Welty, Assessments, sec. 430. When the assessor does this in the first instance, then the board of equalization may equalize this valuation with the average valuation of other .land, by raising or reducing same as the case may require, so as to fix its true value. Sand. & H. Dig., sec. 6530; People v. Hastings, 29 Calif. 451.”

The tax here sought to be recovered was not assessed. It had no relation to and was not dependent upon the value of the land. It was not fixed by the usual assessing agencies. The Legislature itself fixed the tax as an imposition against the lands of that county for road-building purposes, on the arbitrary basis of ten cents for each acre owned by any nonresident of the State. Section 10180, C. & M. Dig., does not apply to such an imposition, and the relief prayed was properly denied.