author: Mehaffy, J. Johnson, C. J.,

text:
    Dewey Portland Cement Company v. Benton County Lumber Company.
    4-3100
    Opinion delivered October 2, 1933.

      J. T. McGill and Raymond W. Moore, for appellant.

      Vol T. Lindsey, for appellee.
   Mehaffy, J.

Fred S. Wetzel, as receiver of the Benton County National Bank, brought suit against Benton County Lumber Company to recover on some notes executed by said company to said bank, and E. P. Knott was appointed receiver, and has since operated the business, and is attempting to pay claims against said company out of its earnings.

The appellant filed an intervention, alleging that the Benton County Lumber Company was indebted to it in the sum of $2,349.73; that $555.98 was for two carloads of cement sold and delivered by the intervener to the Benton County Lumber Company, plus interest of $22.18, and the balance of $3,500 is alleged to be due under a written agreement executed on June 29, 1927.

The written agreement is as follows:

“This agreement, entered into this 29th day of June, 1927, by and between Dewey Portland Cement Company, a West Virginia corporation, party of the first part, and Benton County Lumber Company, an Arkansas corporation, party of the second part, witnesseth:
“Whereas party of the second part owes party of the first part the sum of thirty-five hundred dollars ($3,500) for cement shipped by first party to second party which was used by E. H. Locher Company, contractors, in the construction of paving in the city of Bentonville, Arkansas, in what is known as Paving District Number One;

And whereas party of the second part has not received payment for said cement from E. H. Locher, it is agreed as follows:

“Party of the first part agrees, in consideration for agreements herein made by second party, that in the event party of the first part is compelled to take legal action to collect the sum of thirty-five hundred dollars ($3,500) above referred to, for which said second party holds a negotiable note ¡dated Bentonville, Arkansas, June 9, 1927, and due on or before October 1, 1927, the said note being signed by E. H. Locher Company, E. H. Locher, individually, and Tom Eads, the said E. H. Locher and said Tom Eads being partners doing business under the firm name of E. H. Locher Company, then in such event, first party agrees to pay one-half the expense of such legal action.
“First party further agrees, that in the event the second party is unable to collect the amount due on the note hereinbefore referred to, that it will stand one-half the part of said amount which second party is unable to collect.
“In consideration of the foregoing agreement by first party, second party agrees to use diligent efforts to collect said amount of thirty-five hundred dollars ($3,500), and in any event to collect the same, if not sooner collected, from the last estimate that may be due E. H. Locher Company from the city of Bentonville, Arkansas, for work done on Paving Improvement District Number Three therein, an assignment for which was made to second party by said contractors under date of June 9, 1927, which will be approved by the board of commissioners. Second party ag*rees that, as soon as collection of this amount is made, that it will immediately pay the same to first party.
“In further consideration for foregoing agreement of first party, second party agrees to use his best efforts to see that only cement manufactured by first party is used in the work known as Paving Improvement District Number Three of the city of Bentonville, Arkansas.”

The Benton County Lumber Company and E. P. Knott, receiver, filed answer denying the allegations of the intervention, and further stated that the Dewey Portland Cement Company sold the cement to Looher and Eads; that the Benton County Lumber Company acted merely as agent for the intervener; that the Benton County Lumber Company did not become liable for any amount; that the note was taken, made payable to the Benton County Lumber Company as agent for the appellant, and was so understood by it at the time; that suit was brought on the note, a judgment obtained, and assigned to the appellant.

On July 12, 1930, the judgment in favor of the Benton County Lumber Company was assigned to appellant, and appellant thereafter brought suit on the judgment, claiming that it was the absolute owner, and obtained a judgment in its name.

The principal question for our consideration is the proper construction to be placed on the contract above set out.

“Generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties, and give effect to that intention if it can be done consistently with legal principles.” 6 R. C. L. 835; Mo. & N. Ark, Rd. Co. v. Fowler, 173 Ark. 772, 293 S. W. 47.

In construing a contract, however, and ascertaining the intention of the parties, the contract must be construed as a whole, nothing being treated as surplusage, if any meaning reasonable and consistent with the rest can be given it. Hughes v. El Dorado Union Oil Co., 160 Ark. 342, 254 S. W. 663.

Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in written agreements, and are entitled to place themselves in the same situations as the parties who made the contract, so as to view the circumstances as they viewed them, in order to ascertain the intention of the parties from the language used. U. S. Fidelity & Guaranty Co. v. Sellers, 160 Ark. 599, 255 S. W. 26; Wells v. Moore, 163 Ark. 542, 260 S. W. 411; Desha v. Erwin, 168 Ark. 555, 270 S. W. 965; Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. (2d) 801.

Another rule of construction is that, where there is any doubt as to the meaning of the contract, it will be resolved against the party who prepared the contract. Bracy Bros. Hdw. Store v. Herman-McCain Const. Co., 163 Ark. 133, 259 S. W. 384; McClain v. Reliance Life Ins. Co., 170 Ark. 478, 280 S. W. 15; Marley v. Hackler, 176 Ark. 238, 3 S. W. (2d) 20; Silbernagel & Co. v. Taliaferro, 186 Ark. 470, 53 S. W. (2d) 999; Walden v. Fallis, 171 Ark. 11, 283 S. W. 17, 45 A. L. R. 1396.

The note executed to the Benton County Lumber Company was dated June 9, 1927, and the cement furnished to the contractors must have been furnished sometime before the date of the note. The contract relied on by appellant was dated June 29, 1927. The contract shows that the appellee is indebted to the appellant in the sum of $3,500 for cement shipped to E. H. Locher Company, contractors, and the appellant agreed in that contract, in the event that appellee was compelled to take legal action to collect the note, the appellant would pay half the expense of such legal action: It further agreed that if the appellee was unable to collect the amount of the note, it, the appellant, would stand one-half the part of said amount which the appellee was unable to collect. It was also provided in the contract that the last estimate for work done on the improvement district was assigned to the appellee, and appellee agreed, as soon as this'was collected, to pay the appellant. Appellee also agreed in the contract to use its best efforts to see that only cement manufactured by the appellant was used in district No. 3.

It was the contention of the appellee that it acted as agent for the appellant. This is denied by the appellant in its evidence, as shown by the testimony of its vice-president.

Numerous letters were introduced in evidence, which we do not set out at length, but on June 17, 1927, the appellee wrote to the appellant inclosing- a check for $2,268.20, with the $3,500 note, in full settlement of its account with appellant. The note was indorsed “without'recourse. ” It was also stated in this letter that the appellee would do what it could in the matter of collecting the note.

On June 20, 1927, the appellant wrote to the appellee declining to accept the note with the indorsement without recourse, and requested the appellee to erase these words, and to indorse the note without these words, but appellant stated in that letter, not that it was holding the appellee liable, but: “The reason for declining to accept said note is that we are not on the ground in a position to make collection, while you are, and furthermore being you saw tit to accept this note, doubtless you know it is easily collectible, and, as a matter of fact, you realize it is by you, but it might become a rather difficult matter for ns.”

The note was then indorsed in the manner suggested by the appellant. Thereafter, at the request of the appellant, the judgment obtained by appellee on said note was assigned to the appellant, the assignment being prepared by the appellant. The judgment was for $4,251.15, and they prepared the assignment so as to require the appellee to assign said judgment to the appellant company absolutely. In that assignment was included not only the $3,500, but all other moneys recoverable under said judgment.

After the assignment of this judgment to it absolutely, appellant brought suit on this judgment in its name in Oklahoma, and recovered a judgment against the contractors.

From the time the cement, for which the $3,500 note was given, was sold, sometime before June 9, 1927, until this suit was filed, appellant never took any steps to collect from the appellee, and it is not denied that Mr. Forsman, who dealt with appellee, 'understood that while the note was taken to appellee, it was not to be liable for the amount.

In appellee’s letter of June 17th is this statement: ‘£ The note is indorsed without recourse, which is in line with our conversation with Mr. Forsman.” This is not denied anywhere, and it is not denied that Mr. Forsman had the right to make the agreement.

The evidence shows that the. appellant is engaged in the manufacture and sale of cement, and that the appellee was engaged in the manufacture and sale of lumber and supplies. It was selling material to the improvement districts, and it required in the contract that it wrote that the appellee should use its best efforts to see that only cement manufactured by appellant was used in the work known as Paving District No. 3 of Bentonville, Arkansas.

It appears from the record that in their dealings they were mutually assisting each other, and, while the case is not entirely free from difficulty, yet the intention of the parties under the contract is a question of fact to be determined not only from the contract, but from the acts and conduct of the parties, and all the circumstances surrounding the transactions. These facts were considered by the chancellor, who found in favor of the appellee, and we think his finding was not against the preponderance of the evidence.

In addition to this, however, it may be said that, whether the contract should be construed as the chancellor construed it or as the appellant contends it should be construed, we think the acts of the parties, after the judgment was obtained by appellee, show that the parties themselves changed the contract, if it meant what appellant claims it meant.

“It is well settled in this State that parties to a written contract may, subsequent to its execution, modify it, and substitute a valid oral agreement therefor.” Cook v. Cave, 163 Ark. 407, 260 S. W. 49; Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; Am. Tr. Co. v. McKee, 173 Ark. 147, 293 S. W. 50; J. C. Englemen, Inc., v. Briscoe, 172 Ark. 1088, 291 S. W. 795.

It is not necessary that a contract be expressly rescinded, and another one substituted, but it may be implied from the acts of the parties and circumstances.

“The cancellation or rescission of a written contract may be oral, or by implied agreement, which may be shown by the acts of the parties and the surrounding circumstances. So a rescission may be implied where the first agreement has never been followed, or acted on for a length of time.” 13 C. J. 601; Hunt v. Woods, 168 Ark. 407, 270 S. W. 505.

We think the chancellor was justified in finding that when the appellant did not, from 1927 to 1930, demand payment from appellee, and when it requested the assignment of a judgment for more than $4,000 to be assigned to it absolutely, neither party regarded this as a debt against the appellee.

We have called attention to the fact that when appellant objected to the manner of the indorsement of the note, it did not claim any liability against the appellee, but gave a wholly different reason for wanting the note indorsed as it suggested. Appellee wrote to appellant at the time that the representative of the appellant understood that the note was to be indorsed without recourse.

When all the facts .and circumstances are considered, we cannot say that the finding of the chancellor is not supported by the evidence.

The decree is affirmed.

Johnson, C. J., and Butler, J., dissent.

Johnson, C. J.,

(dissenting). I cannot agree with the majority. Until now, I had understood the rule to be that parties could make contracts in the form and manner desired and that such contracts would be enforced by the courts, except when against public policy or when unlawful per se. In my opinion this court has now made a contract independently of the wishes of the parties.

The uncontradicted testimony in this case shows that prior to June 9, 1927 the Benton County Lumber Company purchased of and from the appellant, Dewey Portland Cement Company, a great quantity of cement, which the Benton County Lumber Company had delivered to the contracting’ firm of E. H. Locher Company. On June 9, 1927 the Benton County Lumber Company accepted a note from E. H. Locher Company for the sum of $3,500 in payment of the current account then due. This note was made payable to the Benton County Lumber Company. On June 17, 1927 the Benton- County Lumber Company remitted this $3',500 note to appellant at Kansas City together with a check for $2,268.20 and the first paragraph in this letter reads as follows: “We enclose ck. for $2,268.20 with the $3,500 note made by E. H. Locher Company in full settlement of our account to date.” On June 20, 1927, appellant Cement Company, returned the. Locher Company note with the following letter:

“June 20, 1927.
“Benton County Lumber Company,
“Bentonville, Arkansas.
“Atten. Mr. C. M. McKee
‘ ‘ Gentlemen:
“This will acknowledge your longhand letter of June 17th together with assignment signed by E. H. Locher and Tom Eads, also the same parties’ note for $3,500 in your favor but endorsed by you to this Company without recourse.
“Observed you state the assignment should be returned to file with the Commissioners of the District, therefore I am enclosing same with this letter. I am also returning the note and .must decline to accept same unless you are willing to eradicate the. words on the back of said note ‘without recourse.’
“After the two words mentioned are eradicated you should then make a notation on the back of the note above as follows: ‘The words “without recourse,” eliminated by the undersigned, ’ and then said note should be signed again the same as it is now signed. The reason for declining to accept said note is that we are not on the ground in a position to make collection, while you are, and furthermore being you saw fit to accept this note, doubtless you know it is easily collectible, and as a matter of fact you realize it is by you, but it might become a rather difficult matter for us.
“However, if you desire to handle the matter as we wish and return the note endorsed as we suggested, we will then give your account credit for $3,500.00.
• “Yours respectfully,
“President.”

Immediately after the receipt of this letter on June 20, wherein the note in controversy was returned .to the Benton County Lumber Company, the parties met in person and executed the contract which is the basis of the intervention in this case. This contract or agreement was executed on the 29th day of June, 1927, just nine days after appellant’s letter was written refusing to accept the note in payment of the account. The first paragraph of this contract of date June 29, 1927 reads as follows:

“This agreement entered into this 29th day of June, 1927 by and between Dewey Portland Cement Company, a West Virginia Corporation, party of the first part, and Benton County Lumber Company, an Arkansas corporation, party of the second part, witnesseth: ‘Whereas, party of the second part owes party of the first part the sum of $3,500, etc.” The contract further provides as follows:
“Party of the first part agrees, in consideration for agreements herein made by second party, that, in the event party of the first part is compelled to take legal action to collect the sum of Thirty-Five Hundred Dollars ($3500.00) above referred to, for which said second party hold a negotiable note dated Bentonville, Arkansas, June 9th, 1927 and due on or before October 1, 1927, the said note being signed by E. H. Locher Company, E. H. Locher, individually, and Tom Eads, the said E. H. Locher and said Tom Eads being partners doing business under the firm name of E. H. Locher Company, then in such event, first party agrees to pay one-half the expense of such legal action.
“First party further agrees that, in the event the second party is unable to collect the amount due on the note hereinbefore referred to, that it will stand one-half the part of said amount which second party is unable to collect.”

This contract of June 29, 1927, speaks for itself and needs no construction. There can be no doubt but that the parties at that time admitted that the Benton County Lumber Company was indebted to the appellant, Cement Company, in the sum of $3500. Therefore, it must be conceded that the Lumber Company was not acting as agent of the Cement Company at that time. The contract further provides in effect that, if collection is not effected on the thirty-five hundred dollar note, the parties to the contract will divide the loss. This contract needs no construction. If the English language means anything, it means this and only this. You may turn it as you will or twist it as you may, but no other sensible construction can be given the language used. In conformity with the contract, the Benton County Lumber Company brought the. note back to Arkansas and instituted suit thereon in its own name, which finally resulted in a judgment in its behalf against the contractors for the full amount sued for. The Benton County Lumber Company did not effect collection of the note, and when it determined that it was without its power to effect collection in Arkansas, it transferred its judgment to appellant with the expressed intention of permitting appellants to endeavor to collect the judgment in the courts of Oklahoma. The majority opinion holds that the mere transfer of this judgment from the Benton County Lumber Company to the Cement Company extinguished the contract of June 29, 1927. No authority is cited for this position, and I assert with confidence that none can be found. The sole purpose of this transfer of judgment from the Benton County Lumber Company to appellants was in furtherance of the contract of June 29, 1927, and not antagonistic thereto. It was the evident purpose of the Benton County Lumber Company and appellants to endeavor to collect this note from the makers and everything that has been done in reference thereto has been in strict compliance with the contract. The construction placed upon this assignment by the majority opinion is a novelty in so far as legal jurisprudence is concerned in this State.

The majority opinion quotes from appellee’s letter, dated June 17, 1927, as follows: “The note is indorsed without recourse, which is in line with our conversation with Mr. Porsman. ’ ’ The opinion then says: ‘ ‘ This is not denied anywhere, and it is not denied that Mr. Porsman had the right to make the agreement. ’ ’ This language is indeed strange. This letter of June 17 was answered by appellant on June 20 and acceptance of this note was definitely declined and refused. The fact is this note was returned to the Benton County Lumber Company on that date with the definite advice that appellant would not accept this note indorsed “without recourse.” After appellant had refused the acceptance of the note, the parties met personally and negotiated and executed the contract, which is the basis of the intervention. It is “hornbook” law in this State that all negotiations leading up to a contract are merged therein. This elementary principle of law is wholly ignored in the majority opinion. The majority opinion says that the parties were mutually assisting each other in an endeavor t'o collect this note, and, continuing, uses this language: “And while the case is not entirely free from difficulty, yet the intention of the parties under this contract is a question of fact to be determined not only from the contract, but from the acts and conduct of the parties, and all the circumstances surrounding the transaction.” I cannot subscribe to this doctrine. I understand .the rule to be that contracts must be construed according to the language used in the contract, unless the same is ambiguous. There is no ambiguity in this contract. It is plain, certain and in the most simple language.

It is next said in the majority opinion: “We think the acts of the parties, after the judgment was obtained by the appellee, shows that the parties themselves changed the contract.” Just what acts of the parties are referred to are not pointed out in the opinion. The only thing that was done was the execution of an assignment of the judgment by the Benton County Lumber Company to appellants, after the Benton County Lumber Company was thoroughly convinced that it could not effect collection of the judgment in Arkansas. This assignment of the judgment was done as much for the benefit of the Benton County Lumber Company as it was for the benefit of the Cement Company. Not one penny consideration passed between the parties for this transfer or assignment. It is perfectly evident that this assignment was executed for the common purpose of collecting this judgment for the benefit of both parties. It is next stated in the opinion that “it is well settled in this State that parties to a written contract may, subsequently to its execution, modify it and substitute an oral agreement therefor.” Just how, when or where this contract was modified is not pointed out in the opinion or just where or when any oral agreement was effected in substitution of this contract is not pointed out. The record in the case will be searched in vain for any act or circumstance of the parties, which could be construed as a modification or substitution for the contract of June 27, 1927, other than the mere transfer and assignment of the judgment from the Benton County Lumber Company to appellants. Lastly, it is stated in the opinion: “We think the chancellor was justified in finding that when the appellant did not, from 1927 to 1930, demand payment from appellee, and when it requested the assignment of a judgment for more than $4,000 to be assigned to it absolutely, neither party regarded this as a debt against the appellee.” Just how this conclusion can be reached is beyond my power of comprehension. The purpose of the contract of June 29, 1927 was to give the Benton County Lumber Company full opportunity to collect this judgment and remit one-half thereof to the Cement Company, and because the Lumber -Company took three years in endeavoring to effect this collection, without protest from appellants, this is seized upon -by this court to bar appellant’s right of recovery in this action. Under the contract the duty rested upon appellee to effect collection of this note. In furtherance thereof it filed a suit ag-ainst the contractors, and the same was prosecuted through the -Supreme Court of the State. Appellant patiently waited until this suit was finally determined in the Arkansas courts. Thereafter it requested an assignment of the judgment of the Arkansas courts to it that it might assist the Benton County Lumber Company in effecting collection from tbe contractors in 'Oklahoma. Appellant spent its money, its time, and its energies in assisting the Benton County Lumber Company in effecting this collection, and now by the majority opinion it is penalized to the extent of the full liability of the Lumber Company under this contract.

Stating the proposition in a more concise and simple manner: appellee owed appellants on account $3500 on June 17, 1927. This is true because appellee so admitted in its letter of June 17; it so admitted in its solemn contract of June 29, 1927. By entering into this contract of June 29, appellee paid and satisfied one-half this debt by agreeing to assist appellants in procuring future business from the contractors. The other half of the debt was agreed to be paid by appellee by collecting same from the contractors. After three years’ time and protracted litigation, appellee failed to effect the collection in Arkansas. Thereupon, the Arkansas judgment was assigned by appellee to appellants, not in payment of any sum to appellants under the contract of June 29, but for the purpose of procuring the assistance of appellants in an efficient endeavor to collect the judgments from the contractors in the courts of Oklahoma. Not one word of testimony can be found in this record indicating* that this assignment was executed or accepted by appellants in satisfaction of its debt as evidenced by the contract of June 29, 1927.

This court has held that “the giving of notes for a debt is no payment of a debt, unless it be so agreed by the parties.” Daniel v. Gordy, 84 Ark. 218, 105 S. W. 256. There is not one word of testimony in this record indicating that the Cement Company accepted the assignment of this judgment in payment of this debt. Again, this court is definitely committed to the rule that the burden of proof rests upon the party who pleads payment. Owens v. Chandler, 16 Ark. 651. In so far as I am advised, this case has been followed consistently since its pronouncement. Notwithstanding the burden of proof was on appellee to show by facts and circumstances that this indebtedness bad been paid, it did not introduce one word of testimony in support of it.

For tbe reasons aforesaid, I respectfully dissent from tbe majority opinion.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Schlosberg v. Doup.
    4-3091
    Opinion, delivered October 2, 1933.

      John A. McLeod, Jr., Coleman & Gantt and H. Jordan Monk, for appellant.

      L. DeWoody Lyle and A. F. Triplett, for appellee.
   McHaney, J.

This lawsuit grows out of an automobile accident at Fifth and Maple streets in the city of Pine Bluff, about 9. a. m. Sunday, July 3, 1932. Appellants were guests in the car of their son, Walter Schlosberg, which was being driven by the latter’s wife, residents of California, and all were on a common mission, to visit another son of appellants, residing in Little Rock, to spend July 4th. Harry, his child, and his father were riding in the rumble seat of the coupe, and his wife and mother were in the front seat. They were traveling west on Fifth, following and overtaking an ice delivery truck of appellee, driven by Ralph Wardlow, at a very moderate rate of speed, traveling in the same direction. As they approached Maple Street and some distance before reaching the intersection, Wardlow, driver of the truck, held out his left hand to indicate that he would turn to the right or north, as he was on his way to the ice plant of appellee to replenish his supply of ice for delivery. In doing so, he swerved his truck somewhat to the left to miss the earner of the curb and turned to the right into Maple Street. The driver of the coupe, being a resident of California, misunderstood the left-hand signal given by Wardlow, thought it indicated a left-hand turn only, as it did under the law of her State, turned her car slightly to the right and proceeded into the intersection where a collision occurred, and the right front wheel of the coupe was forced upon the curb, causing the alleged injuries of which appellants complain. This suit was thereafter instituted to recover damages therefor, but a trial to a jury resulted in a verdict and judgment in appellee’s favor. Hence this appeal.

For a reversal of the judgment, many errors of the trial court aré assigned and argued at length, two relating to the admission of certain testimony; two to the refusal of the court to give requested instructions 9 and 10; and four to the action of the court in giving appellee’s instructions 6, 6%, 10% and 12.

1. During the course of the trial two witnesses for appellee testified that three whiskey bottles were taken out of the coupe by one of the Schlosberg men and dropped in the weeds, two empty pints and one full half pint. Lubertha Moon testified that she saw this and was corroborated by Willie Moore, all without objection. Appellee learned of this fact, had Willie Moore bring the bottles to his office, and they were placed in evidence over appellant’s objection. Assuming, without deciding, that this was error because the bottles were not properly identified and that appellee’s testimony regarding them was in the nature of hearsay, either in whole or in part, we cannot agree that it resulted in any prejudice to appellants. As above stated, no objection was made to the positive testimony of an eyewitness that she saw one of the men take the bottles out of the car and drop them in the weeds. Wardlow and appellee testified they smelled whiskey on Harry, and appellee was quite positive Max had been drinking also. We therefore hold that, if this was error, it was harmless.

The same thing is true relative to the other testimony complained of as having been erroneously admitted. Appellee was charged in the municipal court with some offense growing out of the accident, where a trial was had July 7, four days after the accident. Appellant Max was a witness in that trial. Appellee was asked in this case if he observed Max in that case and if his movements indicated that he was injured. Over objections, he answered that in his opinion he was not injured. Ward-low and Harper were both permitted to so testify, both before and after appellee did so, without objection, so no prejudice could have resulted in any event.

2. Error is also assigned for the refusal of the court to give requested instructions 9 and 10. No. 10 deals with the duty of a driver involved in an accident to give his name, license number, etc., and render assistance to the operator or persons injured in the other car, and, inasmuch as all this was immediately discovered, No. 10 was properly refused. Moreover, failure to comply with the law in these regards bears no proximate relation to the cause of the collision. 2 Blashfield, 1216.

Requested instruction No. 9 follows: “You are instructed that, if you find from the preponderance of the testimony that the plaintiff’s automobile was following the defendant’s truck, and that, as both vehicles approached the intersection of Fifth and Maiple streets, the driver of the truck extended his arm horizontally from the left, swerved his truck to the left, and then, suddenly and without warning, turned his ear to the right directly in front of the plaintiff’s automobile, allowing the driver of plaintiff’s automobile insufficient time and space in which to stop or turn aside and avoid the collision, causing the collision and injuring the plaintiffs, without fault or carelessness on their part, then the defendant would be liable.”

In so far as this instruction is correct, it is covered by instruction No. 5, given by the court. This instruction is open to the further objection that it is argumentative and indefinite, especially the clause, “swerved his truck to the left, and then, suddenly and without warning, turned his car to the right,” etc. What distance to the left before turning to the right would it take to constitute negligence? What is meant by “suddenly and without warning turned his truck to the right?” All the witnesses agree that the truck was traveling very slowly, and that a signal warning was given that might have meant any one of four things: (1) That he would turn to the left, (2) turn to the right, (3) slow down, and (4) stop. Under such circumstances, the driver of the car behind must take notice of the signal and bring his car under control accordingly. Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. (2d) 729; Universal Automobile Ins. Co. v. Denton, 185 Ark. 899, 50 S. W. (2d) 592; Act 223, Acts 1927, p. 721, § 13.

In 5 Blashfield on Automobiles, p. 58, it is said: “Automobile driver’s slight swing to right after signal for left turn is not usually negligence.” We know as a matter of common knowledge that many drivers swing or swerve to the left before making a right turn to avoid striking the corner and to enable them to come into the proper lane of traffic on the intersecting street without obstructing traffic in the opposite lane. No error was committed in refusing request No. 9.

3. The other assignments of error relate to the giving of instructions 6, 6%, 10% and 12 at appellee’s request. It would greatly extend this opinion to set them out and comment on them separately, and, as we see it, serve no useful purpose. We have carefully considered them, together with all other instructions given and refused, as well as the argument of learned counsel. We cannot agree with them that error was committed as alleged. We think the court fully and fairly instructed the jury. Its finding was against appellants, and we must permit it to stand.

Affirmed.


text:
    Gaines v. Gaines.
    4-3098
    Opinion delivered October 2, 1933.

      Martin, Wootton & Martin, for appellant.

      A. T. Davies, for appellee.
   McHaney, J.

On June 27, 1932, appellee, a resident of Hot Springs, Garland County, Arkansas, filed suit for divorce against appellant, alleging that they were married in 1897, separated in 1916, because of appellant’s mistreatment of him, such mistreatment rendering his condition intolerable, and that they have not lived together as husband and wife since that time. Other statutory allegations were made. On the same day, June 27, an attorney ad litem was appointed by the court to notify appellant of the pendency of the action, she being a nonresident of this State, and a warning order was issued and published for the time and in the manner prescribed by law. On July 15, 1932, the attorney ad litem addressed a registered letter to appellant at Gray Court, South Carolina, advising her of the pendency of the action, the court in which pending, and inclosing a copy of the complaint. He advised her that as attorney ad litem it was simply his duty to endeavor to notify her that suit was pending in the court, and asked her to notify him of receipt of the notice. This notice was not received by her until July 20, and on July 27, a decree of divorce was granted appellee without contest from her. On August 2, 1932, she received a copy of the divorce decree, and thereafter on September 3, she filed her petition to set aside the decree. She alleged that fraud was practiced on her and the court in that the attorney ad litem fraudulently failed to notify her promptly, and that fraud was practiced in the taking of depositions in behalf of appellee without notice to her. She attached an answer to her petition in which she denied appellee’s ground of divorce alleged in his complaint, set up a numiber of separations or desertions of her by him, and that he left her in December, 1915, and has continued to live separate and apart from her since that time without just cause'. On October 31, 193'2, she filed an amendment to her petition alleging that she was never legally served with process; that the court had no jurisdiction to grant the divorce decree on July 27, for the reason that the 30 days provided by law for her to interpose a defense had not elapsed; that the attorney ad litem had negligently and fraudulently failed to perform his duties as required by law; and that depositions on behalf of appellee were improperly admitted. All these allegations were denied by appellee. By agreement, the statements and allegations in the verified petition to set aside the decree were accepted and considered as evidence in the case. The court made specific findings against appellant on all contentions, and on November 1, 1932, entered a decree denying the petition. The ease is here on appeal.

We assume, for the decision of this case, that the court had the power to set aside the decree. Appellant seems to proceed on the theory that the term had expired and relies for authority of the court on § 6290, Crawford & Moses’ Digest, subdivision 4, “For fraud practiced by the successful party in the obtaining of the judgment or order. ’ ’ But, whether the term had expired or not, we assume the court had jurisdiction to set the decree aside.

However, we are of the opinion that the court did not err in refusing to do so. It is contended by appellant that fraud was practiced by appellee upon the court and her in the procurement of the decree, in that the attorney ad litem was negligent in not notifying her after his appointment on June 27 until July 15, and that he failed to perform the duties imposed upon him by law. The statute, § 6261, Crawford & Moses’ Digest, provides that: “Before a judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall be necessary:' First. An attorney be appointed at least thirty days before the judgment to defend for the defendant and inform him of the action and of' such other matters as may be useful to him in preparing for a defense. Section 6262 makes it his duty, “before an order for his compensation is made,” to “make a written statement of all that he has done in the case, which shall be signed by him and -filed with the papers of the action. ’ ’ The statute, does not require him to inform the defendant immediately after his appointment, and we are unwilling to so hold, or that the delay in notifying appellant in this case was negligence on his part, or that, if negligence, it was such as amounted to fraud, in the absence of any showing of fraud or collusion between him and appellee. We think the attorney ad litem substantially complied with the statute. He made his report of what he had done, attaching the registry receipt of notice showing appellant had received it July 20, seven days before the decree, and that he had received no response thereto. All this was before the court when the decree was rendered, and it is difficult to see how appellant or the court was or could have been deceived by any action or nonaction of said attorney. She received the notice July 20, but took no action, not even- the acknowledgment of its receipt. She received copy of the decree on August 2, but took no action until September 3, when she filed her petition to vacate the decree, and not until October 31 did she question the jurisdiction of the court by an amendment to her petition.

Notice was posted in the clerk’s office on July 1, 1932, addressed to appellant and the attorney ad litem that on July 14, depositions of witnesses would be taken on interrogatories in Chester, South Carolina, on behalf of appellee, and on July 11, a commission was issued to any person authorized to take depositions out of this State. A deposition was taken in Chester, South Carolina, on July 14, as certified by the officer, but the envelope in which the deposition was returned was postmarked.the 13'th. The court found that the certificate of the officer controlled, and we agree. This deposition was taken before she had actual notice of the suit. Other depositions were taken in Hot Springs on July 21, on a notice posted in the clerk’s office. It is contended that these depositions were improperly received and considered as evidence. It occurs to us that this is a question that could only be raised on appeal from the decree and not on a petition to vacate the decree and an appeal from an adverse decision.

It is finally contended that the. court was without jurisdiction, as 30 days had not elapsed from the appointment of the attorney ad litem. Section 1208, Crawford & Moses' Digest, provides: “The defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session after service: * * * Third. In the case of constructive service, where publication of the warning order has been made as required by law, and thirty days has elapsed since the making of the order and the appointment of the attorney ad litem.” The appellant had until noon of the 31st day after the warning order was made and attorney ad litem appointed. ■ The order was made, and the attorney was appointed on June 27, and the decree was rendered July 27, in the afternoon thereof. There were four days in June counting the 27th and 26 in July, exclusive of the 27th, making 30 days.. The decree was therefore rendered after the time had expired for appellant to plead.

Nothing in our case of Frank v. Frank, 175 Ark. 285, 298 S. W. 1026, is to the contrary. There the attorney ad litem was appointed on the day the decree. was rendered.

But, assuming that the decree was prematurely entered, and that the court was in error in doing so, “the remedy to correct the error was by appeal and not by motion to vacate the decree after the adjournment of the court," as was said in Old American Ins. Co. v. Perry, 167 Ark. 198, 266 S. W. 943. See also Sager v. American Inv. Co., 170 Ark. 568, 280 S. W. 654. If the court had waited another day before entering the decree, or for that matter for 30 days, the situation would have been the same, for appellant did nothing, so far as this record discloses, looking to a defense of the action.

No error appearing, the decree must be affirmed. It is so ordered.

Butler, J., concurs.


author: Butler, J.

text:
    Fawcett v. Rhyne.
    4-3083
    Opinion delivered October 2, 1933.

      Lake, Lake & Carlton, for appellant.

      Abe Collins, for appellee.
   Butler, J.

Mrs. Guinn owned a parcel of land in the village of Ben Lomond, irregular in shape, containing several acres. She sold this land to B. W. and D. R. Fawcett, conveying the same to them by deed which it was subsequently found misdescribed the property intended to be and actually conveyed. The Fawcett brothers took possession of this land; on certain parcels thereof erected their homes, and on others store buildings and conveyed several parcels of it to others. After a time, except as to their homestead lots and the parcels before conveyed to others, they conveyed the property to J. A. Hughes by mortgage deed to secure an indebtedness. This mortgage was afterward foreclosed, a sale made by the commissioner of the court under the decree of foreclosure, report of sale made and confirmed, and a deed made to the purchaser, J. A. Hughes. This title passed by mesne conveyances to Mrs. Allie Rhyne. The purchasers under the foreclosure sale took actual possession of the property, and this possession continued until it became the property of Mrs. Rhyne, who also took possession and remained in such possession continuously until the present.

Mrs. Rhyne established her home on a part of the property, and B. W. Fawcett continued to live on a part of the original Guinn tract near her. A controversy, the particulars of which are not important, arose between the two which resulted in' Mrs. Rhyne instituting an action in the circuit court to establish her title to a small portion of the original Guinn tract which was in dispute between her and Fawcett. She based her title on the decree under foreclosure sale and deeds thereunder and on a quitclaim deed from a Mrs. Smith, sole surviving heir of Mrs. Guinn, deceased. Fawcett answered denying Mrs. Rhyne’s title under the muniments of title exhibited, averred title in himself by mesne conveyances from Mrs. Guinn. (D. R. Fawcett had long previously conveyed to B. W. Fawcett his interest in the Guinn tract.) He alleged there was a mistake in the description of the land made in his conveyances; that upon the execution of the deed under which he claimed he took possession of the land “built a home and established his residence with that of his family thereon, and at all times thereafter until the filing of this action he has occupied the lands so conveyed peaceably, etc.,” except as to certain tracts which he and his co-tenant, D. R. Fawcett, had previously conveyed to others. He further alleged that he had “used and occupied openly, adversely and without interruption a strip of land 46 feet wide on the north end of said land, and extending from the west boundary line of his grant and west 109 feet to the west line of land conveyed to Rebecca Fawcett, as herein-before referred to; also a parcel of land connected with the strip just referred to.on the south 19 feet wide and extending in a southerly direction from the strip just mentioned along and parallel with the west line of the land so conveyed to Rebecca Fawcett a distance of 60 feet, more or less, to the northeast corner of the property conveyed to A. J. Clingan, as hereinbefore referred to, at which point the width is reduced to 14 feet and so continues in a southerty direction to the southwest corner of the said Rebecca Fawcett land.”

Continuing, he averred that the said strips just described had been in his exclusive possession and used solely and exclusively as a roadway and means of ingress and egress from certain roads and highways into his residence, outhouses and other inclosures, and that he had no other way of ingress and egress therefrom or thereto during all the time of his possession, and that no other person had any right or interest in the same. He prayed that his answer be considered a cross-complaint, the cause transferred to equity, the complaint dismissed, the deeds under which he claimed reformed so as to correctly describe tbe land, and bis title and interest in tbe land so described quieted and confirmed.

To this answer, Mrs. Rbyne replied denying that B. W. Fawcett was entitled to have bis deed reformed; denied that be bad bad possession and use of tbe lands described in bis answer in tbe manner claimed, or that be was entitled to tbe relief prayed. Afterward, sbe filed an amendment to ber complaint averring that tbe only ground actually in controversy was' a triangular shaped tract in tbe northwest corner of tbe lands described in tbe complaint, which sbe specifically described, and prayed as in her original complaint.

To the complaint, as amended, the defendant filed an answer and cross-complaint denying that tbe only land actually in controversy was tbe strip mentioned in plaintiff’s amendment, or that same was the only land to which be claimed title. By way of cross-complaint, be stated that, if it was tbe purpose of plaintiff to abandon ber claim to other parts of said lands, the defendant joined issue as to her right to recover tbe land described in tbe amendment to tbe complaint, and denied that sbe bad any title to any part of tbe land described in any of ber pleadings. Further answering, tbe defendant alleged that it was impossible for him to know the extent of tbe lands claimed by plaintiff, but denied that sbe bad any legal right or title to any part of tbe same by virtue of tbe conveyances under which sbe claimed, or otherwise. He prayed that tbe complaint be dismissed, or if the court should be of tbe opinion that plaintiff was entitled to any part of tbe land, that tbe same be definitely ascertained and described in tbe decree of tbe court, and that defendant’s interest in tbe remainder be confirmed in him.

Replying to the amendment to tbe cross-complaint, Mrs. Rbyne alleged that it was not ber intention to abandon title to any of tbe lands described in tbe deed from Mrs. Smith, but that sbe claimed title, to all of it, especially to tbe south 60 feet thereof; sbe averred that the allegations of tbe defendant’s amendment to bis cross-complaint were so indefinite as to make it impossible for her to tell whether or not he intended to assert any claim to the south 60 feet described in Mrs. Smith’s deed to her, and, if so, that said claim was barred by reason of the seven-year statute of limitation, which statute she invoked.

The pleadings in that case are voluminous, and the parts hereinbefore quoted or referred to appear to be those pertinent to the question which we shall hereafter consider.

Testimony was taken on the pleadings and the case was heard by the court and a decision reached, and on the 14th day of December, 1931, the decree was made and entered. To set out the decree in full would unduly extend this opinion, but it recites the pleading-s, the documentary evidence and the testimony of the witnesses on which it was based. It finds that the original deed from Mrs. Guinn incorrectly described the land sought to be conveyed, that this defect in description continued under the deeds made subsequently under which B. "W. Fawcett claimed title, and that all of said deeds should be reformed. It recited the execution of the mortgage deed and proceedings thereunder and the execution of the deeds in pursuance thereof to Mrs. Rhyne and her predecessors in title, and found that she and they had been in possession of the property adversely for more than seven years, and that the true description of the property in the mortgage was as described in the deed of Mrs. Smith. (It will be noted that in the pleadings filed by Mrs. Rhyne there was no allegation of misdescription in the mortgage from Fawcetts to Hughes, the decree and proceedings thereunder and deeds based thereon, or prayer for their reformation.)

The court further found that Fawcett was in the occupancy and had acauired by adverse user title to a strip of land 18 feet wide lying immediately east of the lands owned by Mrs. Rhyne, and that his title in the same should be confirmed. Continuing, the court made the further recital that plaintiff in open court disclaimed any title to the lands described in the deed from D. R. Fawcett to B. W. Fawcett and that described in the original Guinn deed, other than that described in her deed from Mrs. Smith and that the defendant “is the owner of, and in possession, of all that lot and parcel of land set ont and described in the deed from D. R. Fawcett' and wife to B. ~W. Fawcett dated February 14, 1890, and also a strip of land extending from. the north boundary line of said last mentioned parcel 18 feet wide immediately west of, and parallel with, the west boundary line of the parcel conveyed to Rebecca Fawcett, as hereinbefore set out, to the north boundary line of the Nancy C. Guinn survey * * * and that the title and possession of defendant in and to all of said land should be forever quieted and confirmed in B. W. Fawcett against all the claims of the plaintiff, and those holding through her.” After these findings follows the formal decree, which first decrees a reformation of the deeds under which Fawcett claimed, that title to a parcel of land 106 feet north and south by 90 feet east and west, which is described, is in Mrs. Rhyne, and that her right to possession therein and her title thereto be confirmed. Second, it was decreed as follows: “That B. W. Fawcett be and he is hereby decreed to own in fee simple a strip of land 18 feet in width from east to west lying immediately east of the tract of land herein decreed to be owned by the plaintiff, and his title thereto is forever confirmed and quieted, in himself as against the plaintiff and all persons claiming through her. It is further decreed that the cost be divided equally between the defendant and plaintiff. Both parties except, pray, and are granted, appeals to the Supreme Court.”

The instant suit had its origin in a complaint filed by B. W. Fawcett in the circuit court alleging that he was the owner of a certain specific parcel of land described as follows: “Commencing at the southeast corner of southwest quarter of northeast quarter section 5, township 11 south, range 29 west, running thence west 90 feet to beginning; thence west 208.5 feet to public road running from Ben Lomond to Brownstown, now highway No. 71; thence north with said road 120 feet; thence east 208.5 feet; thence in a southerly direction to point of beginning.” Fawcett alleged his title under the deeds pleaded in the former suit which he again exhibited, and further alleged title by virtue of the decree of the chancery court hereinbefore mentioned which he claimed was quieted and confirmed in the specific tract mentioned in his complaint, and that, notwithstanding this, Mrs. Rhyne and her tenants were in possession of the same under claim of ownership, whereas by the terms of the decree pleaded her rights were barred and the plea had become res judicata as to all of her rights.

Mrs. Allie Rhyne and a Mrs. Ethel Fawcett and the tenant in possession were, made defendants, but as to Mrs. Rhyne and Mrs. Fawcett a nonsuit was taken, and Mrs. Rhyne thereupon intervened, denying the allegations of the complaint, averring that she was in actual, adverse and open possession of the land, and that she had been for a period of more than seven years before the institution of the suit. She set up title by reason of said possession. She further alleged that her title was derived through certain foreclosure proceedings and deeds based thereon which she specifically pleaded and exhibited with her intervention; that it was the intention in the said proceedings and deeds to convey the parcel of land named in plaintiff’s complaint, but that said proceedings and deeds incorrectly described the lands, and that same should be reformed. Intervener further alleged that the decree under which plaintiff claimed was not the. decree rendered by the court, and that a part thereof was obtained by fraudulent representation made to it. The intervention concluded with a motion to transfer the cause to equity to the end that the decrees, orders of the court, and deeds under which she claimed be reformed and corrected so as to correctly describe the lands thereby intended to be conveyed, and that the decree of December 14, 1931, pleaded by plaintiff be vacated and set aside; alleged her title by adverse possession and pleaded the statute bar. On the same date of the filing of the. intervention Mrs. Rhyne filed her motion in the chancery court to vacate the decree pleaded by plaintiff on the ground that it was procured by fraud practiced on the court.

Over the objection of the plaintiff, the' case' was transferred to the chancery court where a reply to the intervention was filed denying its averments. On the day following a motion was made to remand to the circuit court, which motion was overruled and plaintiff excepted. The suit and motion were consolidated, and the case then proceeded on the issues joined,,testimony was heard, and the court found that plaintiff had obtained the decree pleaded in his complaint by untrue testimony, and that the parcel of land claimed in the complaint was the property, of Mrs. Rhyne, and the true description thereof, which was thereupon incorporated in the finding, and, without otherwise modifying or vacating its former decree, dismissed the appellant’s complaint for want of equity, from which decree is this appeal.

It is appellant’s contention that the cause should have been remanded to the circuit court; that.there was no fraud practiced on the court as would bring the motion to vacate the decree within the terms of the statute providing the manner in which judgments and decrees may be vacated after the lapse of the term; that his plea of res judicata should have been sustained because, as he contends, his title to the lands involved was squarely presented in the proceedings which resulted in the decree of December 14, 1931; that the question was there adjudicated and title confirmed in him.

As preliminary to the discussion of the issues involved, we observe that a most painstaking investigation of the pleadings and exhibits has been made, but because the descriptions in the various deeds and pleadings are so vague and indefinite and made with reference to two highways running past the property-in controversy forming a part of its boundary, and to certain parcels of land heretofore conveyed to others, we have-been unable to understand- just how the property involved directly or incidentally is located, and we are constrained to believe that counsel themselves were confused as to the true location of the parcels of land adversely occupied and-claimed by the litigants. The only thing that is clear relating to the location of the property is that the parcel of land described in the complaint of Fawcett in the instant case lies along the extreme southern boundary of the original Guinn tract, and that the pleadings and evidence indicate that the lands actually involved in the first suit lay to the north and were parts of the north or northwest portion of the original Guinn tract.

The first question in the case relates to the power of the court to vacate its decree or modify the same after the expiration of the term in which it was handed down. The only power to vacate a decree after lapse of the term is to be found in the statute or by a bill of review in equity on the ground of newly-discovered evidence or for error of law apparent on the face of the record. In this proceeding there was no claim of mistake of law or of newly-discovered evidence, but the appellee relied on the allegation which in effect charged that the decree was procured by fraud practiced on the court. On this question testimony was taken, much of which we deem it unnecessary to review at length, it being a sufficient reason, if no other existed, that the court did not find that there had been any such fraud practiced. In fact, the evidence, to our mind, is conclusive that everything done by the attorney for appellant in relation to the suggestion made by him as to the drafting and phrasing of the decree was done in open court in the presence of opposing counsel.

It is only in those States which so prescribed by statute that a decree may be set aside after the lapse of the term because of perjured testimony given by the prevailing party at the hearing of the case. Such is not the rule in this jurisdiction. ‘ ‘ The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.” Parker v. Sims, 185 Ark. 1111, at page 1116, 51 S. W. (2d) 517, and cases cited. Indeed, we are constrained to the view that the learned trial judge misinterpreted the testimony of Fawcett and failed to reach a just conclusion as to the true inference arising from it. We have carefully examined his testimony, and that relating to his adversary possession of the parts of the Guinn tract claimed by him was clearly referable to the specific allegations contained in his pleadings and the pleadings of his adversary. In his pleadings Fawcett was not contending for the parcel of land here involved, and, of course, his testimony could not justly be held to refer to it. This indubitably appears when his-testimony in the instant case is considered, for he states that during the progress of the original lawsuit and at the time he testified therein he was fully aware that appellee was in actual possession of the subject-matter of this suit, and he then made no claim to it, nor did he do so until after the decree was rendered, and then only on the information of this attorney that the land had been decreed to him. In explaining why he claimed this parcel in the instant case when he did not in the former, he stated that if “she (appellee) tried to take something that doesn’t belong to her, I will take something that doesn’t belong to me.”

The next question involved is the jurisdiction of the chancery court to hear and determine the issues in the instant case and the propriety of the court’s order overruling the motion to remand the cause to the circuit court, from which it had been transferred. This action, an ejectment suit, was properly instituted in a court of law. In the intervention filed by the appellee it was alleged, among other things, that she was the owner of the parcel of land acquired by reason of certain decrees and proceedings thereunder which divested title of appellant in the land and vested it in her, and it was the intention of the parties to the mortgage that the identical land involved be included therein, but that there was a mistake and misdescription therein which was brought forward and continued in the descriptions in the decrees and other proceedings and the deeds based thereon, and she prayed for reformation of these deeds, decrees and other proceedings. This stated an equitable defense and warranted the transfer of the cause to the chancery court and the retention of jurisdiction by the chancellor on motion to remand. Nichols v. Shearon, 49 Ark. 75, 4 S. W. 167; Marsh v. Erwin, 155 Ark. 376, 244 S. W. 441; Langless v. McCarthy, 169 Ark. 953, 277 S. W. 27; Soderman v. Bell, 102 Ark. 83, 143 S. W. 595; Martin v. Hempstead County Levee Dist., 98 Ark. 23, 135 S. W. 453.

It was the principal contention of the appellant that his title to the. tract of land described in his complaint was involved-in the proceedings resulting in the decree of December 14, 1931, and that that decree was a bar to the defenses interposed by appellee by reason of the rule res judicata. That rule has been often announced by this court to the effect that a judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit. This brings us to a consideration of the issues raised by the pleadings in the former suit-and the true import and effect of the resulting decree.

In determining what were the issues raised by the pleadings, it is the general rule, that specific allegations in a pleading must be given precedence over general averments, inasmuch as the latter are to be deemed as explained, limited and controlled by the special allegations. 49 C. J., 157, § 11, note 8; Haley v. Mo. Pac., etc., Co., 197 Mo. 15, 93 S. W. 1120; Seattle Bank v. Carter, 13 Wash. 281, 48 L. R. A. 177; Whitcomb v. Vigeant, 240 Mass. 359, 19 A. L. R. 1439; Johnson v. Sampson, 167 Minn. 203, 46 A. L. R. 772; Wright v. State, 104 Okla. 57, 230 Pac. 268.

It is also the rule that an obscure pleading will be treated in the light in which the parties themselves treated it. Cunningham v. Dellmon, 151 Ark. 409, 237 S. W. 450.

By reference to the statement of the averments in the pleadings, it will be observed that the appellee, was contending that the particular parcel of land, title to which was desired to be adjudicated, was a small triangular strip on the northern boundary of her property. In the answer there is the specific averment that on the Guinn tract appellant “built a home and established his residence with that of his family thereon, and at all times thereafter until the filing of this action he has occupied the land so conveyed peaceably,” except as to certain tracts of land which he and his co-defendant Fawcett had previously conveyed; and the further specific averment that he had “used and occupied openly, adversely and without interruption a strip of land 46 feet wide on the north end of said land and extending from the west boundary line of his grant and west 109 feet to the west line of land conveyed to Rebecca Fawcett, as hereinbefore, referred" to; also, a parcel of land connected with the strip just referred to on the south 19 feet wide and extending in a southerly direction from the strip just mentioned along and parallel with the west line of the land so conveyed to Rebecca Fawcett a distance of 60 feet, more or less, to the northeast corner of the property conveyed to A. J. Clingan, as hereinbefore referred to, at which point the width is reduced to 14 feet and so continues in a southerly direction to the southwest corner of the said Rebecca Fawcett land.” Continuing, he averred that the said strips just described had been in his exclusive possession and used solely and exclusively as a roadway and means of ingress and egress from certain roads and highways into his residence, outhouses and other inclosures, and that he had no other way of ingress and egress therefrom or thereto during all the time of his possession, and that no other person had any right or interest in the same. He prayed for reformation of certain deeds, and that Ms title and interest in the lands described be quieted and confirmed in him.

Further answering the complaint as amended, he denied that plaintiff had any title to the lands described in her complaint, alleged that it was impossible for him to know the extent of the lands claimed by her, arid prayed that the. complaint be dismissed, or, if the court should he of the opinion that plaintiff was entitled to any part of the lands, that the same be definitely ascertained and described in the decree of the court, and that his interest in the remainder be confirmed.

Nowhere in any of the pleadings filed by the appellant was there any specific description of lands claimed by him except in the one we have just quoted, and the general averment under the rule announced must be deemed to relate to, and be controlled by, that special allegation. It is obvious that this is the way the appellant so understood it, for, as has been stated, he expressly disavowed any claim of possession to the lands involved or that his.testimony given at the former trial had any reference thereto. The pleadings are obscure, and appellant’s understanding strengthens the conclusion that the general averment related only to this special allegation. That being true, the tract of land involved in this suit was not within the issues raised at the former trial. Indeed, it is our opinion that the decree rendered did not, in fact, adjudicate or attempt to adjudicate the subject-matter of this controversy. Decrees must be construed with reference to the issues raised. Nakdimen v. Brazil, 137 Ark. 188, 208 S. W. 431.

“The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried — that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated.” Black on Judgments, vol. 2, § 614, p. 936.
“If a particular point was not in issue in the suit— either in the technical sense of an issue framed by the pleadings, or in the sense of being the' decisive, question in the case and the one actually litigated and determining the result — it- i-s not conclusively established by the judgment therein, for- the purposes of a subsequent suit upon a different- cause of action, although it may be expressly or tacitly involved in the judgment.” Black on Judgments, vol. 2, § 617, p. 940.

On an examination of the decree, it appears that there was a general finding to the effect that the appellant was entitled to have his title quieted and confirmed as to all the lands in the deed from D. R. Fawcett to him except the lands described therein as belonging to the appellee, and it is also true that the particular tract appellant now seeks to recover was not included in the description of appellee’s land contained in her pleadings or decree and that she disclaimed all title to any property not included in such description. This disavowal, however, does not aid the appellant, for it is on his own averments of ownership and the evidence adduced to support them that his title must rest. The only specific finding of the court was that title* rested in the appellant to an 18-foot strip of land described in that finding. When it comes to the decree proper, there were only two subjects relative to which the decree made an adjudication: (a) that certain deeds be reformed, and (b) that appellant’s title to the said 18-foot strip be quieted and confirmed.

If the findings of the court should bear the construction contended for by the appellant, they were wholly irrelevant to the issues and did not enter into and become a part of the final judgment. As there was no judgment confirming title in appellant excépt to the 18-foot strip described, it constitutes a bar to the title to that strip and that alone.

In Springer v. Bien, 128 N. Y. at page 102, 27 N. E. 1077, it is said: “Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties, constitute a bar unless followed by judgment based thereon, or into which the verdict or finding entered.”

“Where no formal judgment has been entered, the plea of res judicata has no foundation; neither the verdict of a jury nor the findings of a court, even though in a prior action upon the precise point involved in a subsequent action and between the same parties constitutes a bar.” Oklahoma City v. McMaster, 196 U. S. 529 (2d syl.).
“A final decree is the order of the court pronounced upon hearing and understanding all the points in issue, and determining all the rights of the parties to the suit, according to equity and good conscience.
“If a decree does not profess on its face to dispose of many of the important matters involved in the cause, and it is manifest that the cause was not in condition to be heard upon those matters, and the decree fails to show affirmative action of the court upon them, the presumption may be indulged that they were not under consideration at the hearing or intended to be embraced in the decree.” Shegogg v. Perkins, 34 Ark. 117 (2d syl.); see also Seitz v. Meriwether, 114 Ark. 297, 169 S. W. 1175.

We suggest, with deference to the eminent counsel who appeared for the parties litigant and the learned trial judge, that the final proceedings and findings in the instant case were based on a wrong interpretation of the pleadings and a misconstruction of their purpose, and also upon a misapprehension of what was really decided in the decree of December 14, 1931. Those pleadings, as we have seen, did not include the subject-matter of this proceeding, or raise any issues with respect to it; nor did the decree adjudge to the appellant, either specially or generally, title in the lands now in controversy or confirm that title in him. For either of these reasons the plea of res judicata invoked has no application; and, since the chancery court acquired jurisdiction for the purpose of reforming appellee’s muniments of title, it might, and should, retain jurisdiction for all purposes and finally settle the lawsuit. Fulcher v. Dierks Lbr. Co., 164 Ark. 261, 261 S. W. 645; Held v. Mansur, 181 Ark. 876, 28 S. W. (2d) 704. The court properly heard the testimony relating to the appellee’s title acquired by adverse possession which abundantly justified the conclusion reached that the appellant’s complaint was without equity.

The decree is therefore affirmed.

Johnson, C. J., disqualified and not participating.


text:
    Wardlow v. McGhee.
    4-3092
    Opinion delivered October 2, 1933.
    Appellant pro se.

      W. A. Dickson and Price Dickson, for appellee.
   Butler, J.

On October 30, 1930, the Benton Chancery Court rendered a decree setting aside a conveyance from Con Primrose and wife, Gertie Primrose, to Fannie Wardlow as made in fraud of creditors, and also as to. a subsequent deed made by Fannie Wardlow to a part of the lands conveyed to her to Dee Primrose, except as to one 80-acre tract which the court found was the homestead of the said Con and Gertie Primrose at the time of their conveyance. The allegations of the complaint in that case were that the conveyances were made with the fraudulent intent to defeat J. P. McGhee in the collection of a debt owing him by said Con and Gertie Primrose which had been reduced to judgment. The prayer was that the conveyances be set aside and the land subjected to the payment of his judgment debt. All the parties. grantor and grantee, in the alleged fraudulent conveyances answered denying the allegations of the complaint and affirming that the conveyances were bona fide and made for a valuable consideration. On these issues testimony was adduced on behalf of the plaintiff and defendants with the result announced.

On November 12, 1931, a day of the same term, defendants filed a motion to set aside and modify the decree. The order of sale was suspended pending the-hearing of said motion, which was continued from time to time until April 14, 1931, when the motion was overruled. The case came to this court where the appeal was found not to have been taken within the time limited by law, and the same was dismissed.

The present proceeding was begun on June 23, 1932, by the appellant’s filing in the Benton Chancery Court a petition by which she sought to reopen the suit and set aside the decree before mentioned. This petition contained, in addition to said purpose, an averment that a certain 40 acres of the land involved in the former decree was her homestead of which she was in possession, and there was a prayer that her homestead right be ascertained and the sale enjoined as to it. To this petition a response was filed denying appellant’s right to have the decree set aside or modified and, further responding, appellee denied the averment of appellant as to her homestead right alleging that such right, if any, had been adjudicated in the prior proceedings, and that the decree therein rendered vas res judicata. At the trial the evidence adduced in the previous suit was introduced and other testimony taken and the court refused to vacate its former decree, but adjudged that the 40 acres mentioned in the petition was in fact the homestead of Fannie Wardlow and in effect enjoined the sale thereof under the former decree. The appellant appealed from that part of the decree refusing to vacate the former decree, and the appellee filed his cross-appeal from- that part of the decree finding for Mrs. Wardlow on her plea of homestead.

Without setting out the petition at length, which we deem unnecessary, it may be said that it contained no averment of any of the causes for which a judgment or decree may be vacated or modified set out in the statute. In numerous decisions, beginning with Brady v. Hamlett, 33 Ark. 105, this court has held that after the expiration of the term a judgment can be set aside or modified only in the way and for the reasons mentioned in the statute; or by bill of review in equity, which is an independent proceeding to reverse or modify a decree rendered at a former term and lies only for an error of law apparent from a comparison of the decree and the pleadings and findings, or for new matter the evidence of which has become known since the date of the decree and could not have been before discovered by the use of reasonable diligence. Evans v. Parrott, 26 Ark. 600; Boynton v. Chicago Mill & Lbr. Co., 84 Ark. 203, 105 S. W. 77. The petition contains none of the allegations of a bill of review.

The cause alleged in the petition is that appellant’s motion to vacate filed at the same term at which the decree was rendered was continued from time to time on motion of her adversary and until April 14, 1931, a period of five months and 22 days from the date of the decree, and that she and “her attorneys anticipated and had reason to believe and did believe at all times that in the event said motion to modify was overruled she and her co-defendant would be given the statutory period from the date of the overruling of her motion in which to lodge her appeal in the Supreme Court, * * * and was taken by surprise when confronted by the fact she had only nine days in which to perfect her appeal, and was wholly unable to avail herself of an appeal, etc.” This is a plea to a mistake of law which is no ground for modifying or vacating a judgment.

On cross-appeal appellee relies on the plea of res judicata and on the rule as stated in Taylor v. King, 135 Ark. 43, 204 S. W. 614. and many other cases: “The judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which conld have been interposed in the former suit.” Appellee relies especially on the case of Turner v. Vaughan, 33 Ark. 454, where it was held that, although a conveyance of land set aside for fraud at the suit of creditors does not estop the grantor from claiming a homestead in the premises conveyed, he must assert his claim in that suit or he will be afterward barred. As is pointed out, however, in the case of Bunch v. Keith, 64 Ark. 654, 44 S. W. 452, the case of Turner v. Vaughan, supra, arose under the Constitution of 1868, and the decision was based upon a consideration of that Constitution, but that, since the adoption of the Constitution of 1874, and the statutes passed in aid thereof providing how exemptions allowed may be selected, a different rule governs, and now a judgment sustaining a bill to set aside a conveyance of his homestead by a debtor as fraudulent and ordering it sold will not bar him from claiming it as exempt before the sale. This the homestead claimant may now do under the doctrine, of Bunch v. Keith, which has been approved and reaffirmed in Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.

In this case the chancellor might have treated the petition as a complaint to enjoin the sale of homestead right of the petitioner. The decree of the court reflects that evidence was heard, but this evidence has not been brought forward in the record, and we must assume it was sufficient to sustain the finding of the court. It follows that the decree will be affirmed, both on appeal and cross-appeal.


text:
    Holman v. Armstrong.
    4-3103
    Opinion delivered October 2, 1933.

      Beloate & Beloate, for appellant.

      H. L. Ponder, for appellee.
   Butler, J.

The appellee, receiver of the Planters’ National Bank (Walnut Ridge), insolvent, brought suit on a note signed by Mrs. Fannie Mitchell and appellant to said bank. Appellant answered alleging that she was a surety and was not liable because (1) she signed the note without any consideration passing to her and after its execution by Mrs. Mitchell and its acceptance by the bank, and (2) that before its maturity and in her absence and without her consent time of payment thereof had been extended for a valid consideration and for a fixed period.

The case was submitted to the court, sitting as a jury, upon the pleadings and evidence introduced by the parties. The court found for the plaintiff and rendered judgment accordingly. This appeal followed.

The evidence was to the effect that before the fall of 1930 the bank had secured a judgment against Mrs. Mitchell, which it was proceeding to enforce by having garnishments issued and served on the tenants on Mrs. Mitchell’s farms.

There was testimony tending to establish appellant’s defense that early in October, 1930, Mrs. Mitchell applied to Judge W. H. Cunningham, the president of the bank, for additional time to pay her debt and for the garnishments to be withdrawn, thus releasing her rents; that Judge Cunningham refused this request. After-wards, acting upon the advice of one of the board of directors, she applied to Mrs. Lane, the bank’s principal stockholder, for relief, making of her the same request as that made to Judge Cunningham and promising if this was granted that she would pay $1,000 on the judgment debt, and execute her note due one year after date for the balance. Mrs. Lane accepted this proposition and in furtherance of the agreement, on October 30th, Mrs. Mitchell paid the bank $1,000 and executed her note for $1,786, balance of debt, due a year after date. About a week after the execution and delivery of the note, Judge Cunningham informed Mrs. Mitchell that the note was hot acceptable without security and suggested that she procure the signature of the appellant who is her daughter. Mrs. Mitchell gave the bank’s cashier the appellant’s address and the note was sent to her for her signature. The appellant signed the note in Little Eock, 'and nothing was paid her for this act.

On behalf of the appellee there was evidence which tended to contradict that of appellant and was to the effect that, when Mrs. Mitchell secured the promise of extension, it was with the understanding that the appellant’s name was to be secured on the note; that this was desired because she was the owner of the farms, Mrs. Mitchell being the life tenant; that, with this understanding, the signature of appellant was made on the note, and that it was not to become, and did not become, valid until appellant signed the same, nor were the garnishments released until this had been done.

This evidence raised a question of fact which was resolved by the court against the appellant, which found the extension of time for payment and-the withdrawal of the garnishments a sufficient consideration to bind the surety.

It is contended that the preponderance of the testimony rested with the appellant. This is a question we are not permitted to determine. Turner v. Coats, 148 Ark. 654, 227 S. W. 982. The weight of the evidence and credibility of the witnesses were for the sole determination of the court, which, as we have many times said, has all the finality as the verdict of a jury. Dixon-Rogers Trading Co. v. Scroggins, 136 Ark. 33, 206 S. W. 49; Dyer v. Continental Jewelry Co., 178 Ark. 1199, 10 S. W. (2d) 1. It may be conceded that appellant received no direct benefit for signing the note, but this is not essential to her liability, as it is sufficient if the primary debtor received such. The extension of time for. payment and the release of her rents were benefits to Mrs. Mitchell, and the court correctly held that such bound the appellant. Kissire v. Plunkett-Jarrell Gro. Co., 103 Ark. 473, 145 S. W. 567.

On the second defense, it is sufficient to say that appellant, by a stipulation in the note sued on, expressly consented in advance that time of payment might be extended without notice to her. This was a valid stipulation and her liability is unaltered by granting the extension. Ward v. Nutt, 120 Ark. 445, 179 S. W. 667.

It may also be observed that the court found there had been, in fact, no extension in that the renewal note, by which the extension was to be effected, had never been accepted by the bank. It is undisputed that a representative of the bank procured by Mrs. Mitchell the execution of a note renewing the note sued on extending the payment one year past the due date, that this renewal note was signed before the maturity of the former obligation, and the. interest accrued and that not yet earned was included in, and made up, the sum of the renewal note. A just inference may be drawn, however, from the testimony that the payee bank was not then the owner and holder of the note, but that it was held by some bank in St. Louis, that before the new arrangement could be concluded the payee bank failed, and that afterward the renewal note was returned to, and accepted by, Mrs. Mitchell. We are of the opinion that the trial court was not without some evidence of a substantial nature to support its conclusion in this regard.

On the whole case we find no error, and the judgmeut is therefore affirmed.


author: Johnson, C. J.

text:
    Banks v. State.
    Crim. 3842
    Opinion delivered October 9, 1933.

      W. R. Morrow and H. B. Stubblefield, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Johnson, C. J.

On February 14, 1933, appellant was indicted by the grand jury of Pulaski County for the crime of murder in the first degree for the killing of Mark Goodson. Thereafter he was duly placed upon trial in the circuit court and was found guilty by a jury, and the court pronounced a sentence of electrocution against him. This appeal is prosecuted to reverse that judgment.

The first alleged error is that the trial court erred, to the prejudice of the appellant, by the admission of incompetent testimony. This alleged error is predicated upon the testimony of Mrs. Ethel J eróme May. To fully comprehend this alleged error, it is necessary to make a concise statement of the facts as given by this witness, which is as follows:

Mrs. May testified that on the third day of February, 1933, she, in company with Mark Goodson, was in the woods about a quarter of a mile off the pavement on Park Hill, in Pulaski County; that they were seated upon a lap robe spread upon the ground; that after they had been seated about five or ten minutes, and at about 5:30 p. m., appellant approached the place where they were seated carrying a double-barreled shotgun. That appellant ordered them to accompany him, and, as they arose, he shot the gun between them and some of the shot hit her in the leg. Appellant then marched them through the woods for about a mile, then ordered Mr. Goodson to remove his clothing. After Mr. Goodson had removed all of his clothing, including his trousers, and had given them to appellant, appellant then told him to hold up his hands, and, while in this position, appellant fired two shots through the body of Mr. Goodson at a distance of about ten feet. Appellant then demanded that witness accompany him, and said that he was not going to hurt her. He took her down the hill about fifty yards and ordered her to lie down upon the ground. When she refuséd, he attacked her with a small pocket knife and forced her to have sexual intercourse with him. When witness kept screaming, appellant ordered her to hush and then stabbed her about 18 times with a small pocket knife. Appellant then struck her over the head and she lost consciousness.

It is earnestly insisted on behalf of appellant that the trial court erred in permitting the witness, Mrs. May, to testify that appellant forced her to have sexual intercourse with him, because, it is said, appellant was not on trial for the crime of rape. The general rule is that admissions of testimony showing the commission of other crimes having no relation to the crime charged is error, but this general rule has no application to the facts of this case. It is always entirely proper for the State to show, if it can, motive for the commission of the crime, and the evidence of Mrs. May, in reference to appellant forcing her to have sexual intercourse with him was entirely proper for this purpose. We understand the rule to be that the fact that evidence introduced to prove the motive of the crime for which the accused is on trial points him out as guilty of an independent and totally dissimilar offense is not sufficient grounds upon which to reject the testimony. Section 154, Underhill on Criminal Evidence, 3d ed.

In the case of Marsh v. State, 183 Ark. 1, 34 S. W. (2d) 767, it was insisted that the trial court erred in permitting the State to show that appellant Marsh was operating a still, which was an independent crime, but this court disposed of the contention by saying. “In prosecution for murder, evidence that defendant operated a still was admissible where it tended to show a motive for shooting the deceased.”

Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme. Thus, where two or more persons are assaulted at or about the same time and. place, it will be permitted to prove all the assaults on the trial of one indictment for any one of them. For the reason that all the assaults are merely parts of one transaction and to prove one necessitates proof of all of them. Section 152, Underhill on Criminal Evidence, 3d ed.

It is insisted on behalf of appellant that the views herein expressed are in conflict with Williams v. State, 183 Ark. 870, 39 S. W. (2d) 295. The instant case is clearly distinguishable from that. In the Williams case just cited, the State was permitted to show that before appellant came to Little Rock he had been confined in the penitentiary in Oklahoma; that he had come to Little Rock in a stolen car; that after reaching Little Rock he had robbed a drug store and was arrested and confined in jail therefor; that he escaped the jail, and in doing so stole the pistol with which he later killed the officer who attempted to arrest him while robbing a man named Chance. This court said: “There is no connection between these various crimes and the killing of McDermott, and the only and the necessary effect of this testimony was to show the desperate character of appellant as a confirmed criminal.”

We adhere to the pronouncement in Williams v. State, cited supra. In the instant case, however, the murder of Goodson and the assault upon Mrs. May were a part of one and the same transaction. Since this is true, the testimony was competent and admissible.

It is next insisted on behalf of appellant that the trial court erred in permitting the prosecuting attorney to argue to the jury that appellant had ravished Mrs. May. Necessarily, this alleged error has been disposed of heretofore. Since it has been determined that the testimony of Mrs. May, in reference to being ravished by appellant, is found to be competent and admissible, it necessarily follows that the prosecuting attorney had a lawful right to argue it to the jury.

Again, it is insisted that the trial court erred in holding Charles Pumphrey a competent juror to serve on this case. This contention arose under the following circumstances: Charles Pumphrey admitted on examina-' tion as a prospective juror that he had served as a juror at a murder trial in the same court within 60 days last past. Services as a special juror within two years does not disqualify a juror to serve on the regular panel. This question was decided adversely to appellant’s contention in the case of Hampton v. State, ante p. 869.

Lastly, it is insisted that the court erred in refusing to give to the jury appellant’s requested instruction, No. 10. We have explored the transcript to determine the instructions, given and refused, and find that the requested instruction was fully covered by other instructions given in the case. Therefore it was not prejudicial error to refuse this instruction.

Other alleged errors are argued by appellant, but we deem them not of sufficient importance to discuss in this opinion.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Beeson v. Byars.
    4-3125
    Opinion delivered October 9, 1933.

      H. L. Veazey, for appellant.

      Haynie, Parks & Westfall, for appellee.
   Smith, J.

Appellee brought this suit to reform and foreclose a mortgage executed to him by John Beeson on February 21, 1931, to secure a note of even date for $200, -which mortgage was recorded on May 30, 1931. It was alleged that the property mortgaged was the east half of northwest quarter of section 19, township 11 south; range 14 west, whereas, by mutual mistake, the property was described as east half of northwest quarter of section 10, township 11 south, range 14 west.

The complaint alleged that the mortgagor died in June, 1931, leaving as his sole and only heir a son named B. L. Beeson, to whom, on or about May 2,1931, the said. John Beeson had executed what purports to be a warranty deed, and had thereby attempted to convey the mortgaged property, by a correct description. It was alleged that this deed was without consideration, and had been executed for the fraudulent purpose of preventing the plaintiff from collecting his debt through foreclosure of the mortgage.

An answer was filed by the mortgagor’s son and sole heir, which denied the existence of the debt and the validity of the mortgage, and asserted title under the deed to the defendant from his father.

The answer further alleged that the land described was the homestead of John Beeson, and was not subject to the claims of creditors, and that the plaintiff therefore had no right to raise the question that the deed to defendant was without consideration.

The testimony established the debt and the mistake in the description in the mortgage so clearly as to preclude any controversy over that fact, and it was established with equal certainty that the deed from the mortgagor to his son was without consideration, and that John Beeson, the grantor'in the deed, was insolvent when the deed was made and at the time of his death.

The land in question had been for many years the homestead of John Beeson, but his son had moved away and his wife had died, and for some years John Beeson had lived alone on the land. It is insisted — and correctly so — that John Beeson’s homestead right was not lost by the removal of his son from the homestead and the death of Mrs. Beeson. It was held, in the case of Baldwin v. Thomas, 71 Ark. 206, 72 S. W. 53, that one who has acquired a right of homestead as head of a family will not lose such right by subsequent loss of the family if he retains his residence thereon. See also Butt v. Walker, 177 Ark. 371, 6 S. W. (2d) 301.

It is therefore insisted that, as. the plaintiff had no mortgage of record describing the land in controversy when defendant received his- deed from his father, the plaintiff cannot raise the question whether there was any consideration for the deed, for the reason that the land was John Beeson’s homestead, and no unsecured creditor could complain of any disposition, which John Beeson made of his homestead.

The land ceased to -be the homestead of John Beeson on November 19, 1929, at which time he sold and conveyed it to D. C. Cathey. Notes given by Cathey for the purchase money were not paid, and in January, 1931, Cathey reconveyed the land to John Beeson. The testimony establishes the fact very clearly that, when Beeson sold the. land to Cathey, he surrendered possession thereof and removed therefrom, and went to the home, of D. C. Cathey about 2y2 miles away, in fact he had removed from the farm upon the death of his wife and after living with D. C. and Jack Cathey for something over two years he returned to live with Arthur Clements on the land in suit. Clements testified that he was in possession of the land for two years, the first year as the tenant of D. C. Cathey and the second year as the tenant of John Beeson, Cathey having reeonveyed the land to Beeson, as above stated.

Upon these facts the court found that the deed from John Beeson to his son was void, as having been executed in fraud of creditors, and, upon that finding, reformed the mortgage, and decreed its foreclosure.

The mortgage was, of course, good between the parties, and the testimony required its reformation. This being true, the mortgagee had the right to litigate the question whether the land was John Beeson’s homestead when the deed was executed to his son, and whether the deed was fraudulent, and we think the testimony shows that the land was not John Beeson’s homestead at the time of his death, and that his conveyance thereof to his son was fraudulent and vqid.

While, as we have said, John Beeson did not lose his right of homestead because he had been left without family, he did lose his homestead right when he sold and surrendered possession thereof. Wooten v. Farmers’ & Merchants’ Bank, 158 Ark. 179, 249 S. W. 569; Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.

Having abandoned the homestead, that right was not reacquired when Beeson returned to the land to live in the home of his tenant. To reimpress the homestead right upon the land it was essential that Beeson be then a married man or the head of a family. Section 3, article 9, Constitution.

In other words, while Beeson might have retained his homestead right, even after he had ceased to be a married man or the head of a family, yet, when he abandoned his homestead right by the sale thereof and the removal therefrom*, he could not thereafter, without being a married man or the head of a family, reacquire that right.

The decree of the court appears therefore to be correct, and it is affirmed.