text:
    Liberty Central Trust Company v. Vaughan.
    Opinion delivered January 12, 1925.
    1. Wills — contingent remainder. — Under a will providing that real ■property devised to testator’s daughter should be “an estate for life and in remainder to her surviving children,” a child took a remainder interest contingent on his surviving his mother, and not a vested remainder.
    2. Execution — contingent remainder. — The interest of a contingent remainderman is not subject to levy under execution.
    3. Judgment — construction op decree. — The language of a decree must be interpreted in the connection in which it was employed.
    4. Partition — construction op decree. — A consent decree in suit for partition of land devised to three persons, one of whom was to take for life with remainder to her “surviving children,” did not enlarge the contingent remainder interest of the children into a vested remainder by assigning a one-third portion of the land to such devisee for life with remainder to her three named children, where there was no prayer for relief except for partition, and no issue was raised as to the nature of the remainder estate.
    Appeal from Pulaski Chancery Court; John E. M'artineau, Chancellor;
    affirmed.
    Gray, Burrow & McDonnell, for appellant.
    The chancery decree vested a fee simple title in Rector L. Williams subject to the life estate of his mother. His remainder interest is therefore vested and is subject to execution. The decree in the partition suit is conclusive against collateral attack. 94 Ark. 519; 52 Ark. 493; 118 Ark. 533; 97 Ark. 450. A decree, unless corrected by appeal or new trial, is conclusive of all matters that were determined or could have been litigated in the ease. 98 Ark. 110; 41 Ark. 75; 52 Ark. 1. The decree settled the question of title. It must be presumed to have been in issue, else the court would not have expressly passed on it. Section 8100, C. & M. Digest. See also 72 S. W. (Mo.) 521; 51 S. W. (Mo.) 1044; 11 S. W. (Mo.) 993; 107 S. E. 431 (N. C.) (1921). The decree of partition, etc., did not, according to the original equity practice, transfer or convey title. At the present time the general rule is that mutual conveyances are not necessary, but the partition is regarded as consummated and the titles vested in severalty to the respective shares by virtue of the final decree. Pom. Eq. Remedies, 2d ed., § 721; C. & M. Dig., § 6297-98; Black on Judgments, § 660; 162 Fed. 742. The consent partition decree is binding and operative in all its parts, regardless of whether it is confined to matters litigated or in issue. This renders the question of title here res judicata and operates as an estoppel. 98 Tenn. 363, 38 L. R. A. 679; 113 U. S. 261.

      Carmichael <& Hendricks, for appellee.
    'The will only created a contingent remainder in Rector L. Williams which was not subject to execution. 44 Ark. 458; 95 Ark. 22; 98 Ark. 573. See also 75 Ark. 21; 140 Ark. Ill; 115 Ark. 405; 117 Ark. 370; 118 Ark. 274. The consent decree did not change the character of the estate created in the children of Mrs. Vaughan. The question of whether her children were to receive a contingent or vested remainder was not before the court when the consent decree was rendered. See 70 Ark. 83; 71 Ark. 168; 92 Ark. 173. Our court has taken a contrary view on the argument advanced by appellant that the consent decree is binding, etc. As witness the cases in 76 Ark. 152; 81 Ark. 462. The injunction in' this case should be made permanent. 48 Ark. 510; 58 Ark. 314.
   Smith, J.

Appellant recovered judgment against Rector L. Williams, and, in satisfaction thereof, sought to sell under execution the undivided third interest of Williams in certain property in the city of Hot Springs, but the sale was enjoined upon the ground that the interest of the judgment debtor in the property levied upon was merely a contingent remainder, and therefore not subject to sale under execution, and this appeal was prosecuted to reverse a decree of the chancery court sustaining that contention.

H. M. Rector died testate, and, by the eighth clause of his will, directed that “after satisfying the special bequests herein provided for, I give and bequeath to my son, Doctor H. M. Rector, and to my son, Elias W. Rector, and to my daughter, Ernestine F. Brunson, the remainder of my estate, real, personal and mixed. The real property, however, hereby bequeathed to my daughter, Ernestine, to be an estate for life and in remainder to her surviving children.’’

The judgment debtor, Williams, was one of the three children of the testator’s daughter, Ernestine F. Brunson, and the three children and their mother were all parties plaintiff to the suit, they being joined with the judgment debtor, on the theory that they were interested in the property advertised for sale.

The cause was heard on an agreed statement of facts, from which we copy the following recitals. The testator died August 12, 1899, and the will was probated on August 15. On November 17, 1900, in order to avoid a contest of the will, a consent decree was entered in the Garland Chancery Court in a cause wherein H. M. and E. W. Sector and Mrs. Brunson and her children were plaintiffs, and the other heirs of the testator, being the children of another child of the testator, were defendants, wherein the defendants were granted certain portions of the estate of the testator in lieu of certain specific bequests and devises, and the defendants were perpetually enjoined from contesting the will. On July 26, 1902, a second consent decree was rendered by the Garland Chancery Court, in a cause wherein E. W. Sector was plaintiff and H. M. Sector, Ernestine F. Brunson, Sector Williams, McGehee Williams and Thruston Williams (the three children of Mrs. Brunson), were defendants. This was a suit for partition, and, under the provisions of the decree, one-third of that portion of the testator’s estate which was held in common by the sons, E. W. Sector and H. M. Sector, and the daughter, Mrs. Brunson, and her children, was set apart to E. W. Sector, another third to H. M. Sector, and the remaining third to Mrs. Brunson and her three children.

The language of the decree assigning the last-mentioned third is as follows: “and to the said Ernestine F. Brunson, Rector Williams, McGehee Williams and Thruston Williams, the remaining one-third thereof, to be held by the said Ernestine F. Brunson for and during her life, and the remainder of said one-third interest to the said Rector, McGehee and Thruston Williams, their heirs and assigns forever.” Subsequent to this decree Mrs. Brunson married, and is now known as Mrs. Vaughan.

It is the contention of the judgment creditor that, if Rector L. Williams did not take a vested remainder interest’ under the will of his grandfather, he did take that interest under the decree rendered July 26, 1902, and that thereafter, if not before, his interest in the property became and is subject to sale and satisfaction of appellant’s judgment against him, and the correctness of this contention is the question presented for decision.

We think it clear that Rector L. Williams did not take a vested remainder under the will of his grandfather. An opinion on this title was prepared by John M. Moore, one of the State’s greatest lawyers, and, as we concur in his construction of the will, we quote and adopt certain language employed by him in his opinion. After quoting the eighth clause of the will, he said: “This clause of the will vested a life estate in Mrs. Brunson with remainder in fee to her surviving children. The word ‘children’ is used in the will in the ordinary sense, and does not include grandchildren nor embrace the descendants of a child who should die during Mrs. Brunson’s life. The devise to the children is to take effect upon the death of the mother, and their interest is contingent upon their surviving her. At the time this will was executed Mrs. Brunson had three children living. If all of the children were to die before their mother, this devise would lapse, and it is a question of some importance to determine whether it would pass to the heirs at law of H. M. Rector, the testator, or fall into the residuum and pass to the residuary devisees, H. M. Rector and Elias W. Rector.”

Mrs. Brunson (now Mrs. Vaughan) and the children are all alive, and it is apparent that Rector L. WilHams took, under the will of his grandfather, only a remainder interest, contingent upon his surviving his mother. Horsley v. Hilburn, 44 Ark. 458; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Plumlee v. Bounds, 118 Ark. 274.

It is conceded by appellant that, if the judgment debtor’s interest is that only of a contingent remainder-man, it is not subject to execution (Plumlee v. Bounds, 118 Ark. 274), and, as we are of the opinion that this was the interest he took under the will, it becomes necessary to consider whether that estate was enlarged by the consent decree of July 26, 1902. No appeal was ever prosecuted by any one from this decree, and more than seven years have elapsed since the youngest of the three children came of age before the institution of this suit.

It does appear that the decree of July 26, 1902, assigned to the mother and her three children “the remaining one-third thereof, to be held by the said Ernestine F. Brunson for and during her life, and the remainder of said one-third interest to the said Rector, MeGehee and Thruston Williams, their heirs and assigns forever.” But this language of the decree must be interpreted in the light of the connection in which it was employed. This was a partition suit, pure and simple, and no relief except that of partition was prayed. The suit was brought by E. W. Rector, who alleged that he was the owner of an undivided one-third interest in the lands sought to be partitioned, and that his brother, H. M. Rector, owned an undivided one-third, and that their sister and her three children owned the remaining third. There was no issue between the mother and her three children as to their respective interests in the third which they together owned. There was no prayer that the will be construed and their respective interests adjudged, and there is nothing in this decree, which is incorporated in the agreed statement of facts, to indicate that the court undertook to construe! this will ot to adjudge the respective interests of the mother and her children. It was alleged in the complaint for partition that Mrs. Brunson and her three children owned an undivided third interest.

It is true, as was said by Mr. Moore in his opinion, that, if all the children were to die before their mother, this devise would lapse; but this contingency was waived by the brothers, who sought partition, and, as was further said by Mr. Moore in his opinion, that suit would estop the brothers from disputing the title of Mrs. Brunson and her sons; but there is nothing to indicate that the court was asked to assign her and her children any other or different interest than that given them by the will of the testator.

The complaint said nothing about the nature of the remainder interest which the children owned, and there was no prayer in either the complaint or the answer that this interest be adjudged, and there was no necessity for such adjudication to afford the brothers the relief prayed by them, that is, that they be assigned their interests in severalty as against their sister and her children. There is nothing to indicate that these litigants had placed themselves under the control of the court for all purposes, and the only interests alleged were that the respective parties owned each a third of the property sought to be divided, and there was no prayer for any relief except that partition be made, and we feel sure there was no attempt in this decree to adjudge the interest given Mrs. Vaughan or her children by the terms of the will, but that it was intended only to assign to her and to her children the interests given them under the will in severalty. Cowling v. Nelson, 76 Ark. 146; Rankin v. Schofield, 81 Ark. 440.

This being true, Rector L. Williams has only a contingent remainder in a third, and, as this is an interest which cannot be sold under execution, it follows that the sale was properly enjoined, and that decree is therefore affirmed.


source: Caselaw Access Project

author: Smith, J. McCulloch, C. J.

license: Public Domain

text:
    State use of Lonoke County v. Swaim.
    Opinion delivered Januaury 12, 1925.
    1. Counties — salaries of county officers. — Special Acts 1919, p. 294, intended to fix the salaries of Lonoke County officers in full compensation for all services they might render .by virtue of their respective offices.
    2. Clerks of courts — salary.—The salary of the circuit clerk of Lonoke County, as fixed by Special Acts 1919, p. 294, covers all services performed by him, including his services as ex offieio commissioner, under Crawford & Moses’ Dig., § 1364.
    3. Clerks of courts — salary—fees of deputy. — Under Special Acts 1919, p. 294, requiring the circuit clerk of Lonoke County to pay the salaries of his deputies out of his salary, which was to come out of the fees and commissions of the office, and requiring him to pay all amounts in excess of such salary collected by him during each quarter into the county treasury, held that he ' is required to account for fees received by his deputy, acting as commissioner by special appointment of the court, under Crawford & Moses’ Dig., § 1365.
    4. Clerks of courts — validity of act fixing salary. — Without deciding whether Special Acts ■ 1919, p. 294, fixing the salaries of the various officers of Lonoke County, is valid in so far as it fixes the salary of the county treasurer, the act is valid in so far as it fixes the salary of the circuit clerk.
    Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor;
    reversed.

      W. J. Waggoner and Chas. A. Walls, for appellant.
    The salary of the circuit clerk, together with all of his ex officio duties, such as chancery. clerk, recorder, commissioner, etc., are included and embraced therein, and that the sum of $4,000' is the limit allowed by the act to the clerk for performing all these services, whether performed by himself or his deputy. Act 173, Acts 1919; 66 Ark. 30; 73 Ark. 305; 88 Ark. 386; 73 Pac. 273; 88 Pac. 89; 71 N. W. 717. The circuit clerk is responsible for all fees, emoluments and commissions received either by himself or his deputies. Art. 7, § 15, Const. 1874; § 1364, C. & M. Digest.

      Coleman, Robinson & House, Trimble & Trimble, Reed & Heard, for appellee.

      The appointment of Albert C. Sexton as commissioner was without regard to his deputy ship, and not to evade the law. Every court of record has the inherent power, irrespective of statute, to make rules for the transaction and regulation of its business. 85 S. & E. (Pa.) 336; 1 Peters 604; 34 Mo. 474; 28 Ind. 205; 27 Me. 497. The act is unconstitutional. 66 Ark. 36; 154 Ark. 184; 125 Ark. 101.

      W. J. Waggoner and Chas. A. Walls, in reply, for appellant.
    When the circuit clerk assumes the office, he assumes all the duties incident thereto, and no subterfuge can be resorted to to evade the law. There is no distinction between the services performed by the clerk himself and his deputy. Section 1370, C. & M. Digest. So long as the fees fixed by the Legislature are reasonable the courts will uphold them. 66 Ark. 30; 61 Ark. 21; 64 Ark. 515; 73 Ark. 305; 188 Ark. 386.
   Smith, J.

This suit was brought by appellant against Pat M. Swaim, as circuit clerk of Lonoke County, and Albert G. Sexton, as deputy, to recover certain excess fees which appellant, the plaintiff below, alleges should have been paid into the county general fund of Lonoke County, as required by special act No. 173 of the Acts of 1919, approved March 4, 1919 (’Special Acts 1919, p. 294).

This act No. 173 of the Acts of 1919 is entitled “An act establishing and fixing the salaries and fees of the county officers for Lonoke County, Arkansas, and for other purposes.” It is a very comprehensive act, and includes all the officers of that county, and we think its obvious purpose was to place all these officers on a salary, which should be paid them in full compensation for all services they might render by virtue of their respective offices, and to require them to collect the fees fixed by law for their official services, and to pay these fees into the county general revenue fund.

Section 1 of this act fixes the salary of the county and probate judge. Section 2 fixes the salary of the county and probate clerk.

Section 3 read's as follows: ‘‘That the salary of the clerk of the circuit and chancery court and ex-officio recorder of Lonoke County shall be the sum of $4,000 per year; provided, that the fees, emoluments and commissions of said office amount to the sum of $4,000 per year. ’ ’

Section 4 and 5 fix the fees of the sheriff and collector; § 6 those of the treasurer; and § 7 the fees of the assessor.

Section 8 reads as follows: “That it shall be the duty of all officials herein named, whose salaries are contingent upon the collection of fees, to employ such clerical help as will promptly expedite the transaction of the business of their respective offices, and to pay for said clerical assistance out of the salaries herein allowed them.”

Sections 9,10 and 11 fix the fees of the county superintendent of public schools, the surveyor, and the coroner, respectively.

Section 12 provides that it shall be the duty of the clerk of the circuit court and ex-officio recorder, and of the other officers there named, “to charge and' collect the same fees and commissions as are now, or may hereafter be, allowed by law, and they shall each, on the first day of each quarterly term of the county court held in Lonoke County, file a true report in said court, showing the amount of all fees, emoluments and commissions collected by them respectively, up to and including the last day of the preceding quarter, and they shall each make settlement with the said court by paying all amounts collected by them during the preceding quarter, in excess of the salary and fees herein allowed, into the county treasury, and shall' file the treasurer’s receipt therefor as a voucher in said settlement, and in such settlement said officers shall be chargeable with and liable for all fees and commissions that it was the duty of said officers to collect, and that said officers shall be allowed to retain their salaries ont of the fees,' emoluments and commissions collected by them.”

By § 13 it is made the duty of the various county officers to pay over to the county treasurer all funds received in excess of the salaries fixed by the act, and it is made the duty of the county court to examine the reports of these officers and to approve them if found correct.

Section 15 provides that, if these officers shall fail to keep the records, or make the reports, or fail to pay over the excess fees as required by the act, they shall be guilty of a misdemeanor, pay a fine, and be removed from office.

Section 16 requires the county judge to furnish all record's and office supplies necessary, and § 17 provides that all excess fees shall be paid into the county general fund.

It was- alleged that the clerk had been appointed commissioner by the chancery court in certain causes, and had been allowed fees of $35 for his services, which he had not included in his report of fees collected; and that Sexton, the deputy clerk, had been appointed commissioner by the chancellor in certain causes pending in the chancery court, and had been allowed fees as commissioner, and that no report had been made of these fees.

The court found that Swain had collected fees of $35 as commissioner, which he had not included in his report, and' that he should be charged therewith, and should be required to pay the same into the county general -fund.

The court further found that Sexton had been allowed fees as commissioner, which had not been included in the report of Swain, his principal, -as clerk, and the court also found that the clerk was not required to account for or to pay over the fees allowed his deputy.

Sexton was not appointed commissioner as deputy clerk, and in no case in which he was appointed commissioner was he referred to as deputy clerk, and the chancellor who made each of these appointments and who tried the case below made the following dandid statement, which is incorporated in the record: “The salary paid to the circuit clerk was not adequate-, in my opinion, at the time to permit him to receive a fair salary and pay a reasonable salary to -such clerical help as' he required, and there was some question as to whether, if the clerk was appointed, he would not have to account for these commissions.”

Another statute which must be taken into account in considering the question presented for decision is § 1364, C. & M. Digest, which reads as follows: “The clerk of the circuit court, by virtue of his office, shall be master or commissioner of the circuit court, and shall have all the powers that now are, or may hereafter be, conferred by law on a master or commissioner in chancery, and shall receive for such services a compensation to be fixed by the court.”

Section 1365, C. & M. Digest, provides that the judge may appoint any other person master or commissioner in special causes in said court.

These sections of the statute made the clerk ex-officio commissioner of the court, and contemplate that he shall be appointed in all cases where the service of a commissioner may be required, except in those cases where some special reason exists for not appointing him.

The fees of the commissioner are ordinarily fixed by the court in each particular case, and are largely dependent upon the duties and responsibility incident to the discharge of the appointment when duties other than the mere sale of property are involved, in which case the compensation is fixed by Acts of 1917, p. 1324; but we think it very clear that the General Assembly had this fact in mind in fixing the compensation of the circuit clerk. This officer is required to keep a record and to report all fees, emoluments and commissions collected by him, and these terms appear sufficiently comprehensive to include all compensation earned by the clerk in the discharge of the functions of his office. Indeed, we think the ‘ ‘ commissions ’ ’ which the clerk is required to account for expressly include compensation allowed him as commissioner.

The clerk is made ex officio commissioner, and, this being true, the salary allowed him as clerk covers the entire compensation fixed by law for all duties performed by him as clerk or as commissioner ex-officio.

In the case of Durden v. Sebastian County, 73 Ark. 305, the salary act of that county was construed. The act fixed the salary of the clerk, but did not fix his salary as ex-officio recorder, and it was contended by the clerk that his salary as clerk did not include his ex-officio fees,' and a similar contention was made as to other officers having ex-officio duties to perform.' This court held, however, that the salary fixed for the circuit clerk as such contemplated that the amount named should be in full payment for all duties discharged by such officer, including his duties ex-officio, and a similar holding was there made as to the other officers having ex-officio duties to perform. The court there said: “It is clear that the Legislature intended, for the purpose of fixing salaries, at least, that these various officers (except the sheriff) having ex-officio duties, should receive but one salary for all the duties performed. ’’

In the ease of Keeling v. Searcy County, 88 Ark. 386, the clerk of the circuit court had taken the affidavits of certain persons who had entered government lands and had charged the fees which had been fixed by an act of Congress for that service. The clerk who took these affidavits was operating under a special salary act, whicn fixed Ms compensation for all services required of him by law as circuit clerk, and the court, in holding that the clerk should account for and be charged with the fees thus earned, said that the salary act “embraces everv fee or emolument accruing to the clerk bv reason of his official capacity, and allows the.withholding of none. It includes every fee that was earned by him in his official capacity, ’ ’

It will be observed, from the language of the act No. 173 quoted above, that the clerk is not given an absolute salary of $4,000, but he is required to collect and account for “all fees, emoluments and commissions’’ which he is allowed by law to charge, and out of the collections so made he may receive as his salary the sum of $4,000 if his collections equal that amount. The excess must be paid into the county general fund.

What we have said about the clerk is as equally applicable to his deputy. Section 8 of the act requires the officers there named to employ such clerical help as is necessary, and to pay the cost therefor out of the salaries allowed. The clerk is permitted by law to appoint a deputy, and Sexton was duly appointed as such, and was serving in that capacity at all times when he was appointed as commissioner. He was not appointed because there was a special reason for not appointing his principal, but for the reason, candidly avowed by the court which had made the various appointments, that the salary allowed by law was not sufficient to secure efficient service. This was, of course, an evasion of the law, and one which cannot be tolerated. It was not the function of the court to decide what compensation was necessary to secure efficient service. This was a legislative question, and one upon which the Legislature had expressed itself.

The clerk is, of course, responsible for the acts of his deputy — the act of the deputy is his act-and, whileo the deputy mig’ht perform many— and, conceivably, all— of the duties enjoined by law upon the clerk himself, his right to charge any compensation for the services performed is referable to his appointment as deputy, for his principal is acting through him. And in a case where, as here, the deputy is appointed to perform a service which his principal should have performed ex-officio (unless there was a special cause for appointing some other person), the fees allowed and collected should be' accounted for as a part of the commissions which the clerk is required to report and account for. To hold otherwise would defeat what the majority of the court regard as the obvious purpose of the Legislature, to fix the total salary of the circuit clerk at $4,000 per annum. And it is the settled rule of construction of statutes similar to the one under review that “where the provision of law fixing the compensation (of an officer) is not clear, it should be given the construction most favorable to the government.” See chapter on Officers in 29 Cyc., p. 1426.

The entire act is attacked on the ground that it is unconstitutional, and, by ¡a cross-appeal, the clerk seeks to recover the fees in excess of $4,000 per annum which he has paid into the county treasury. This contention is based on § 11 of article 16 of the Constitution, which provides that “no tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

Of this contention but little need be said. Similar statutes have been uniformly upheld by this court. One of the early cases so holding is that of Independence County v. Young, 66 Ark. 30, and the act there upheld is not unlike the act here under review. It is true that, on the same day on which this decision was handed down, the case of Gray v. Matheny, 66 Ark. 36, was also decided. Botk cases involved act No. 53 of the acts of 1895, page 66. The first of these Independence County eases involved the salary of the county clerk, and the act fixing his salary was upheld in its entirety. In the case of Gray v. Matheny the act was held unconstitutional in part as involving certain fees of the county treasurer derived from public taxation, but the court held that the obnoxious portion of the act might be stricken out and the act left complete without it. Here the salary of the treasurer is not involved, but, if it were, and if the portion of the act relating to the salary of the treasurer should be invalid, for the reason assigned in Gray v. Matheny (which we do not decide), the remainder of the act would be left complete without it.

We conclude therefore that the act is constitutional, at least in so far as it relates to the clerk of the circuit court, and appellee is entitled to no relief on his cross-appeal.

It follows also, from what we have said, that the clerk was properly charged with the commissions which had been allowed him for his own services as such commissioner; and it also follows, from what we have said, that the clerk should be charged with and required to account for the commissions allowed his deputy, and the decree of the court below will be reversed, and the cause remanded with direction to enter a decree against both the clerk and the deputy for the commissions allowed and paid to the deputy.

DISSENTING OPINION.

McCulloch, C. J.

I do not agree to the conclusion that the fees received by the clerk or his deputy as commissioner come within the statute fixing the salary of that officer. Nor do I think that any of the cases cited in the opinion of the majority sustain that conclusion. It is true the statute makes the clerk ex-officio commissioner and master in chancery in the event that the court does not appoint some one to act in that capacity in a cause, but fees thus received are not “fees, emoluments or commissions of said office, ’ ’ and are derived by virtue of the order of the court permitting the clerk to serve as commissioner or master and fixing the fees. In other words, such fees are received, not under the statute, but by virtue of the court’s order. This statute is directory, not mandatory, for it reposes in the chancery court discretion to determine whether or not the clerk shall serve as commissioner in a given case. In this respect the case differs from those cases referred to where the fees were received ex officio by virtue of the Constitution or statute prescribing absolute duties and fixing the fees for discharging them.

Mr. Justice Hart shares with me these views.


author: Humphreys, J.

text:
    State v. Red Oak Trust & Savings Bank.
    Opinion delivered January 12, 1925.
    1. Domicile — when change of residence effected. — To • effect a change of residence or domicile, there must be an actual abandonment of a prior domicile, coupled with an intention not to return to it, and a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home.
    2. Domicile — intent to abandon. — The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances.
    3. Appeal and error — conclusiveness of court’s finding. — The finding of the circuit court sitting as a jury will not be disturbed if there is any substantial evidence to support it.
    4. Domicile — abandonment—evidence.—Evidence held to; support a finding that decedent had not abandoned his domicile in another State.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judg’e;
    affirmed.

      David A. Gates, for appellant.

      John W. Newman, for appellee.
   Humphreys, J.

The purpose of this suit was to collect an inheritance tax from the estate of C. W. Hine, who died testate, May 16,1916, leaving as his distributees Mrs. Abbie Hine, his wife and certain collateral heirs. The inheritance tax attorney of the State commenced the proceedings by filing a complaint in the probate court of Pulaski County, to which appellee, representing said estate and distributees, filed an answer admitting inheritance tax liability on the real estate and tangible personal property located in Arkansas, but denying inheritance tax liability on the bank deposits, shares of stock in corporations outside of the State, and promissory notes. The liability upon the latter properties was dependent upon whether C. W. Hine was a resident of the State of Arkansas at the time he died. Appellees denied that C. W. Hine was a resident of the State of Arkansas at the time he died, and this presented the only issue in the case for determination. This issue was tried in the probate court, and, on appeal, in the Second Division of the Circuit Court of Pulaski County, upon an agreed statement of facts, and determined adversely to the contention of appellant, from which is this appeal. The agreed statement of facts is as follows:

“The decedent, C. W. Hine, settled in Montgomery County, Iowa, some time between 1870 and 1880, and made his home there, and later married, and, on December-23, 1884, purchased a dwelling-house in said county, and lived in it continuously from the time of its purchase until about one year before his death, and at his death still owned the said property. This dwelling and home was in the town of Stanton, a village of about six hundred people, in said county, and about six miles east of the city -of Red Oak. Mr. Hine had business connections in Stanton and in Red Oak which were never severed up to the time of his death, and his banking relations with the First National Bank of Stanton continued to the time of his death, and -on his death all of his personalty in said county was in said bank. The last time he voted it was in Montgomery County, Iowa. In his will, dated September 23, 1914, he recited that he was a resident of said county, and he appointed a resident of Montgomery County his executor and trustee. He left his will in the First National Bank of Stanton, and it was filed for probate by the cashier of said bank, who was his friend and business adviser for many years. The probate court of Montgomery County took -original jurisdiction of the estate, and found that his domicile was in said county.
“On June 9, 1904, Mr. Hine purchased 640 acres of land in Lonoke County, Arkansas, which he improved into a cotton farm, and, on September 28,1906, purchased 190 acres of land in said Lonoke County, and, on November 15, 1915, purchased two lots in the city of Little Rock, Arkansas, upon.which a residence was -located. After the purchase of the land in Lonoke County Mr. Hine made frequent trips from Iowa to Lonoke, and spent considerable time in Lonoke attending to his holdings there. Mr. Hine died May 16, 1916, in Chicago, Illinois, where he had gone to attend to business. About a year before his death he and his wife vacated the residence in Stanton, Iowa, and for a short time occupied a residence owned by his wife in Red Oak, Iowa. During the following summer he was in Lonoke, improving his lands, and his wife was visiting in the East. In November, 1915, he purchased a house and two lots in Little Rock, mentioned above, and sold the furniture from the Stanton home, and brought furniture and fitted out the house in Little Rock, and he and Mrs. Hine moved into it in December, 1915, and remained there until his death the following May. At the time of his death, his wife’s house in Red Oak, Iowa, was furnished and ready to be occupied during the summer, and his house in Little Rock, Arkansas, was furnished and occupied by Mr. Hine and his wife. Since Mr. Hine’s death, Mrs. Hine has continued to live seven or eight months each year at the Little Rock house. During the summer months she was in Iowa. Mr. Hine was buried in Montgomery 'County, Iowa. In 1922 Mrs Hine rented the Little Rock house, and since then has lived in Iowa.”

Appellant contends that the undisputed evidence reveals that C. W. Hine abandoned his domicile in Montgomery County, Iowa, and established a domicile in Arkansas at the time he sold his furniture at Stanton, Iowa, and purchased and furnished a house in Little Rock into which he and his wife moved some six months before his death. The rule governing a change of residence or domicile, in tax and succession laws, laid down in 9 R. C. L., p. 452, which we think correct, is as follows:

“To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.”

The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances in any particular case. The issue of residence involved in this case, however, is not before us for a trial de novo upon the record, but is here on appeal from a verdict from a circuit court sitting as a jury and a judgment rendered in accordance therewith. The rule is that a verdict and judgment of a law court will not be disturbed if there is any substantial evidence to support it. St. L. & S. F. R. Co. v. Stewart, 137 Ark. 6. After a careful analysis of the testimony we are unable to agree with learned counsel for appellant that the undisputed evidence reveals that C. W. Hine abandoned his domicile in Mongomery County, in Iowa, and acquired a permanent residence in Arkansas prior to his death. There are facts and circumstances in the record tending to show that he had no such intent. After disposing of his furniture in Stanton, he and his wife moved into a house at Red Oak, a village about six miles distant from Stanton, where they remained for a short time. He did not sell his "Stanton home, but owned it at the time of his death. The house at Red Oak, into which he moved after selling his furniture at Stanton, belonged to his wife, and, when they came to Arkansas, it was left furnished and ready to be occupied the following summer by them. He retained his business connections in Stantion and Red Oak, and executed a will on September 23, 1914, in which he recited that he was a resident of Montgomery County, Iowa. In his will he named a resident of Montgomery County as executor, and left the will in the First National Bank of Stanton for safekeeping. The will was probated in that county. His last vote was cast in Montgomery County, Iowa. When Mr. Hine died in Chicago, his remains were carried to Montgomery County, Iowa, for burial, and were interred there.

The facts and circumstances just related are of a substantial nature, and tended to show that C. W. Hine had not changed his domicile from Montgomery County, Iowa, to Little Eock, Arkansas.

No error appearing, the judgment is affirmed.


text:
    Inman v. Rynearson.
    Opinion delivered January 12, 1925.
    Vendor and purchaser — forfeiture for nonpayment of taxes.— Where a contract for reconveyance of land to the grantor on payment of a specified sum required the grantor to pay the taxes thereon or forfeit all rights thereunder, failure to pay the tax forfeited the right to a reconveyance.
    Appeal from Woodruff Chancery Court, Southern District; A. L. Hutchins, Chancellor;
    affirmed.

      Boss Mathis, for appellant.
    The obligations of the contract were mutual, and the failure of one party to comply with its terms releases the other from compliance with it. 93 Ark. 472; 65 Ark. 320; 88 Ark. 491; 88 Ark. 422.

      Boy D. Campbell, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant in the Southern District of the Chancery Court of Woodruff County to confirm his title to certain lands and lots in said county. The petition contained an alternative prayer that, if title to the lands and lots should not be confirmed in him, the agreement entered! into between him and appellant, John T. Inman, on February 8, 1921, be treated as a mortgage, and that a lien be declared in his favor upon the lands for the unpaid purchase price thereof, and that the lands be sold to satisfy the lien.

The only defense interposed to the action by appellants was that appellee had failed to comply with the agreement of February 8, 1921, in failing to procure a loan on said lands and lots for a term of two years for $6,500, and in failing to advance John T. Inman $1,000 out of the loan and to credit the balance thereof on the unpaid purchase price of the land.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree confirming the title of the lands and lots in appellee, from which is this appeal.

Appellee, being the owner of the lands and lots in question on the 10th day of January, 1919, sold them on that date to W. A. Nailing for $18,000, $3,600 o,f which amount was paid in cash, and the balance, evidenced by four promissory notes in the sum of $3,600 each, due in one, two, three and four years, which were secured by a lien upon the lands and lots. On June 16, 1919, W. A. Nailing and his wife conveyed the lands and lots to John T. Inman, who assumed the payment of the four notes. He subsequently paid one of the notes, but was unable to pay the .others when they became due, so, on February 7, 1921, appellee and appellant, John T. Inman, entered into a written contract whereby it was agreed that John T. Inman should convey the lands and lots to appellee in satisfaction of the unpaid notes and interest, which amounted, to $11,544, on condition that appellee should reconvey the lands to John T. Inman upon the payment of $11,544, and interest at 6 per cent., within two years. The contract contained two provisions pertinent to the issue involved in this case, which are as follows : It is agreed that J. L. Rynearson will make application and procure a loan for a term of two years upon said lands in the sum of $6,500, of which $5,500 shall be applied on the amount due J. L. Rynearson and $1,000 shall be paid to John T. Inman.

“It is further agreed and understood that the party of the second part shall pay all taxes assessed against said lands, and any failure on his part to pay said taxes as they become due shall operate as a forfeiture of any rights the party of the second part shall have under this agreement. ’ ’

Pursuant to the contract, appellant and his wife, Cora Inman, executed a quitclaim deed for the lands and lots to appellee.

Appellants remained in possession of the lands, receiving the rents and profits therefrom. John T. Inman failed to pay the taxes then due upon the lands and lots, and permitted them to forfeit for the general as well as the special improvement district taxes. Appellee redeemed the lands and lots from the tax forfeitures at a cost of $3,178.28.

Appellee made an effort to obtain the $6,500 loan upon the lands and lots, but failed to procure same because his quitclaim deed from appellants was regarded by money lenders as a mortgage and not an absolute conveyance.

Appellants made no objection to the form of the decree vesting the title to the lands and lots in appellee, instead of decreeing a foreclosure sale of the land to satisfy the indebtedness, but contended for a reversal thereof on the ground that appellee was not entitled to any decree because he himself breached the contract by failure to obtain the $6,500 loan and advanced appellant, John T. Inman, $1,000 out of same. This contention is not well grounded, for appellant, John T. Inman, forfeited all his rights under the contract by failing to pay the taxes assessed against said lands and lots, amounting to $3,178.28. If the contract should be construed as imposing an absolute duty upon appellee to borrow $6,500 on the land for a term of years and to turn over $1,000 out of the loan to appellant, J. T. Inman, and to credit the balance thereof on the indebtedness, he was released therefrom by the failure of Inman to pay all the taxes assessed against the lands and lots. There is no ambiguity in the contract. It plainly provides that “any failure .on his (Inman’s) part to pay said taxes as they become due shall operate as a forfeiture of any rights the party of the second part shall have under this agreement.”

The decree is affirmed.


text:
    Starr v. City National Bank.
    Opinion delivered January 12, 1925.
    -1. Homestead — selection op streets and alleys. — Under Const., art. 9, § 5, exempting to a debtor his urban homestead, “owned and occupied as a residence,” consisting of not “less than one-quarter of an acre of land without regard to value,” a debtor required to select his homestead out of two lots exceeding a quarter of an acre in area, is not required to select as part of such homestead a portion of the streets and alleys adjacent to such lots, though he may own the fee to the middle of the streets and alleys, since the streets and alleys are not “occupied” by him to the exclusion of the public.
    2. Homestead — arbitrary selection. — While a debtor, in selecting an urban homestead, may not arbitrarily select the area so as to destroy or impair the value of the remainder to the injury of his creditors, the selection of a corner lot and part of an adjoining lot not exceeding one-fourth of an acre in area cannot be characterized as an arbitrary and capricious selection.
    Appeal from- Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    reversed.

      Hill .& Fitzhugh, for appellant.
    ■ The Constitution, art. 9 § 5, permits the selection of the homestead. As long as the debtor selects his homestead in the ordinary manner, his wishes should be respected by the courts. 73 Ark. 174; 73 Ark. 266. The land selected must be suitable for a home. 89 Ark. 506. Appellant never owned the streets and alley, nor could he occupy them as a homestead, hence his homestead claim could not be reduced by the area of the streets and alley. 36 Wis, 73.

      James B. McDonough, for appellee.
    Abutting property owners own to the middle of the street. 77 Ark. 579; 24 Ark. 102; 135 Ark. 498; 150 Ark. 437; 50 Ark. 467 ; 51 Ark. 491. The city only has an easement in the streets and alleys. The owner may bring ejectment against any'one occupying the streets. 123 N. Y. S. 691; 110 Minn. 228. Owner may use street or alley subject to public easement. 262 111. 358; 197 Mass. 199; 183 Mich. 452. A person may sell his property right to the street. 145 iWis. 663. Upon the abandonment of the street, the land reverts to the abutting property owner. 87 Kan. 835; 172 Mich. 201; 255 Mo. 519; 70 Pda. 484. In determining the quantity of a homestead, an easement is not considered. Waples, Homestead & Exemptions, p. 150; Thompson, Homestead & Exemptions, p. 136. This court in effect held that a highway was not to be excluded. 76 Ark'. 575. See also 116 Ark. 131; 123 Ark. 200; 67 Ark. 232; 62 Ark. 140; 12 Kan. 257.
   Humphreys, J.

This is the second appeal of this case. On the former appeal the court ruled that the lots owned and occupied by Starr in the city of Fort Smith, and claimed by him as a homestead, exceeded $2,500 in value and one-fourth of an acre in area, and that the area in excess of one-quarter of an acre was subject to the claims of his creditors, but that he was entitled to claim one-fourth of an acre, irrespective of value, out of said lots as exempt against the claims of his creditors. The trial court had subjected the whole property to the payment of Starr’s debt, and this court reversed its decree in so far as it subjected his homestead to the extent of one-fourth acre to the claims of his creditors,, and remanded the cause, with instruction to allow Starr to select one-fourth of an acre as his homestead. Starr v. City National Bank, 159 Ark. 409.

Upon the remand of the cause, Starr selected lot 7 and 27¾ feet off of lot 8, and adjoining lot 7, as his homestead. The house stood upon lot 7, and the actual area selected by him was a fraction less than one-fourth of an acre. Lot 8 had been used in connection with lot 7 as a part of the homestead. These lots are all 50x140 feet, fronting on South Ninth Street, which is fifty feet wide, and running back to an alley twenty feet wide. Lot 7 is a corner lot lying lengthwise and adjacent to South C Street, which is also fifty feet wide.

Appellees questioned the right of Starr to select this particular area as his homestead, contending that, in estimating the one-fourth of an acre to which he was entitled, he was compelled to take into consideration one-half the streets and alley adjacent to the lots and to include them in' the area selected. This contention was based upon the theory that 'appellants owned the fee to the center of the street and alley adjacent to lots 7 and 8. The' trial court adopted the theory advanced by appellees, and, in estimating the area to which Starr was entitled as his homestead, included the surface to the center of the streets and alley adjacent to lot 7, and restricting him to the selection of lot 7 only, and subjecting all of lot 8 to the payment of the claims of appellees, from which is this appeal.

Issue was joined between appellants and appellees as to whether, under the act of Congress donating the lands, of which lots 7 and 8 are a part, to the city of Fort Smith, and the patent issued pursuant thereto, Starr owned the fee to the center of the streets and alley adjacent to said lots, but we deem it unnecessary to decide this question, under our interpretation of the meaning of the words “owned and occupied as a residence” contained in § 5, article 9, of the Constitution of Arkansas, which is as follows:

“The homestead in any city, town or village, owned and occupied as a residence, shall consist of not exceeding one acre of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of two thousand five hundred dollars, and in no event shall such homestead be reduced to less than one-quarter of an acre of land, without regard to value.”

The meaning of this section is that the owner may select an area as a homestead out of lands owned and occupied by him as a residence. In selecting the area he is not compelled to select any part of streets and alleys adjacent to the lot or lots upon which his residence stands, although he may own the fee to the middle of the streets and alleys in which the public owns the easement. He cannot occupy the streets and alleys to the exclusion of the public, and the purpose and intent of the section was to allow the owner to select an area as Ms homestead which he both owned and occupied exclusively. In a proper interpretation of the section, emphasis should not be given to the word ‘ owned” to the exclusion of the word “occupied.” Both ownership and occupancy are necessary elements in the selection of a homestead, under this section of the Constitution. If the contention made by appellees is correct, one owning a homestead on a very wide street would be restricted to a narrow space for the actual occupancy of himself and family. Of course, the owner will not be permitted to select an area surrounding his residence in such an arbitrary, capricious and unreasonable shape as to destroy or impair the value of the remainder of the land, to the unnecessary injury of Ids creditors (Sparks v. Day, 61 Ark. 570), but the selection of a corner lot and a part of an adjoining lot which does not exceed one-fourth of an acre in area, cannot be characterized as an arbitrary and capricious selection.

Under an act in Wisconsin exempting one-fourth of an acre of urban property, and the dwelling-house thereon, “owned and occupied” by a debtor as a homestead, it was held by the Supreme Court of the State that, in determining the debtor’s homestead exemption, land included in a public street adjoining the property, in which the debtor owned the fee, subject to the public easement, should not be considered. The reason assigned was that controlling effect should be given to the words “occupied” in construing the statute. Weisbrod v. Daenike, 36 Wis. 73. It will be observed that the language used in the Wisconsin statute is similar to that used in § 5, article 9, of our Constitution.

On account of the error indicated the decree is reversed, and the cause is remanded with instructions to allow Starr all of lot 7 and 27¾ feet adjoining lot 7 off of lot 8 for his homestead, as exempt from the claims of appellees.


author: McCullough, C. J.

text:
    Parker v. Rolfe.
    Opinion delivered January 19, 1925.
    1. Sales — reservation of title. — The sale and delivery of personal property, on condition that title is not to pass until payment of price, does not vest the title in the. vendee until the condition is performed.
    2. Sales — conditional sale — innocent purchaser. — Retention of title as security in a conditional sale is enforceable against a purchaser from the vendee, even though without notice.
    3. Partnership — conditional sale by partner. — Since a partner has no title to chattels owned by the firm, but only a right to share in the surplus after the partnership debts are paid, he cannot retain title to such property as security for the purchase price, and a sale by him to a third person transferred the title, notwithstanding such retention.
    Appeal from Desha Circuit Court; T. G. Parham, Judge;
    reversed in part.

      Ross Mathis, for appellant.
    Appellee Bolfe failed entirely to show any title, or reservation of title in himself. The contract evidencing the sale of Campbell’s interest in the machinery to Cray did not and could not reserve a title in Campbell. One partner cannot sell his interest in partnership property toi the other, and retain title in himself. 17 A. L. B. 1421. The statute bar in replevin is three years. It was pleaded, and was a sufficient defense.

      Norfleet <S> Norfleet, for appellees.
    The effect of paragraph 9' of the contract between Campbell and Cray was to vest title in all of the property stated in the contract in Campbell, and it provides that the property shall be and remain in Campbell until all the notes are paid in full. The action was not barred, notwithstanding -the three-year statute. C. & M. Digest, § 6950, includes replevin. Appellee’s action accrued upon the wrongful detention after demand for delivery. 86 Ark. 58. A vendor’s right to recover property, title to which has been retained until payment of purchase money, is not prejudiced by the sale or mortgage thereof by the vendee. 108 Ark. 446; 101 Ark. 469. There was sufficient evidence to support the Rolfe judgment.
   McCullough, C. J.

This is an action at law instituted by appellees, E. A. Rolfe, Joe Campbell and Burt Gray, against appellant, F. W. Parker, to recover possession of a stationary engine and a lot of stave-mill machinery. Rolfe claims title to the engine and Campbell claims the other machinery involved in the action. Bach of them bases his respective claim upon an alleged reservation of title in a conditional sale of the property. The causes of action are entirely separate, but no objection was raised below and none is raised here as to that feature of the case. Gray does not claim title to any of the property nor to 'any interest therein, and there is no reason why he should have been made a party; however, there is no objection raised on that score. Counsel for appellant frankly disregards all technical objections and asks that the case be determined on its merits. There was a trial before the court sitting as a jury, and the finding was in favor of each of the appellees, Rolfe and Campbell.

Appellees Campbell and Gray were copartners, engaged in the operation of a stave-mill, and, as such copartners, were the owners of the stave-mill machinery (other than the engine) involved in the controversy. They purchased from Rolfe the engine in controversy under a conditional contract of sale whereby the title was retained by Rolfe until the purchase price should be paid.

In the year 1918 Campbell sold out his interest in the copartnership to Gray, and retired from the firm. There was a written contract between Campbell and Gray, describing the partnership property covered by the contract, which. consisted of a large quantity of staves and other manufactured timber on the yard, and also all of the mill machinery, fixtures, etc., described in detail, and a list of notes and accounts due to the copartnership. The contract recited a cash consideration of $15,000, payable $4,500 cash in hand and the balance in seven unequal installments, evidenced by notes, the last of which was for the sum of $500. The contract contained a recital that “it is understood that the property herein conveyed shall be and remain in the said J. M. Campbell until all of the said notes are fully paid, including interest upon the same.” The mill and other property were then situated at Cotton Plant, in Woodruff County, and afterwards Cray formed a partnership with appellant Parker, and the machinery in controversy and other remaining property of the old copartnership became the property of the new firm. It was moved to Louisiana and operated there for a time, and then brought back to Arkansas, and the mill was put in operation by Parker in Desha County, appellee Cray having passed out of the firm.

According to the testimony adduced, Cray made all the payments on his purchase from Campbell, except the last note for $500, which is still unpaid.

It is contended, in the first place, that the evidence is not sufficient to support a finding in favor of appellee Rolfe for the recovery of the engine. It must be conceded that the evidence is somewhat meagre, but we think it is sufficient to support the finding of the court. Rolfe did not testify himself, and the testimony on that branch of the case is confined to that of appellee Cray.

There seems to have been little stress laid in the trial below upon the question whether or not Rolfe had originally owned an interest, and sold it to Campbell or Cray, with reservation of title until the purchase price should be paid, but we think that the evidence is sufficient to establish these facts. Cray testified that the engine belonged to Rolfe, and that it had never been paid for. His testimony on this subject appears in the record as follows: “Q. The engine belongs to Judge Rolfe? A. Yes sir, I never did pay him for it. * * * Q. To whom did it belong? A. Mr. Rolfe. * * * Q. You told him (Parker) that Mr. Rolfe had a title to the engine? A- He knew it all the time, * * * Q. What is the value of the engine that belongs to Judge Bolfe? A. I promised to pay him $450 for it.” Appellant practically conceded his liability to Bolfe in the trial below, for, in his examination, he made this statement: “Well, somebody has got to pay Judge Bolfe, and I suppose I will have to pay it. I didn’t know it until I was notified by him. No — come to think of it — I found it out in Louisiana.”

The evidence being sufficient to support the judgment in Bolf’s favor, and, there being no error in the proceedings on that branch of the case, that judgment is affirmed.

The case of appellee Campbell against appellant for recovery of the machinery stands in a different attitude. The question of conditional sales of personal property by retention of title as security for the purchase money has been the subject of many decisions of this court, beginning with the case of Carroll v. Wiggins, 30 Ark. 402, and continuing down to the present time, including the very recent case of Brigham v. Thrailkill, 166 Ark. 548, and we have steadily adhered to the rule that the sale and delivery of personal property on condition that the title is not to pass until payment of the purchase price, does not vest the title in the vendee until the condition is performed, and that the retention of title is enforceable against the purchaser from a -subsequent vendee, even without notice. The substance of the rule and the theory upon which it is‘based was well stated by Chief Justice Cockrill in McIntosh v. Hill, 47 Ark. 363, as follows:

“Possession of personal property is only prim'a facie evidence of title, and the doctrine of caveat ernptor prevails notwithstanding the possession. The prima facie title must yield to the actual title when it is asserted, and the buyer who trusts to appearances must suffer the loss if they prove delusive. If the vendor is estopped from reclaiming his property from an innocent purchaser, there is no principle, as was said in Andrews v. Cox, supra, upon which we could stop,-short of holding that one who had borrowed or hired any personal property might divest the true owner of his title, simply by assuming the power to sell. [We think that reason and the overwhelming weight of authority pronounce in favor of the right of the original vendor.’’

In the case of Simpson v. Shackleford, 49 Ark. 63, Judge Battle, speaking for the court,'said:

“The transaction between Butcher and the appellants was a conditioinal sale. No title to the mill passed to him.. Appellees only acquired the conditional title of Butcher. The fact that Butcher was permitted to remain in possession until sold did not estop appellants from claiming and taking possession after appellees purchased. They did not have a right to rely upon Butcher’s possession as conclusive evidence of his title-, and to say they were thereby induced to purchase. His possession was only prima facie evidence of title, and they had no right to treat and -act upon it as higher evidence. To protect themselves it was necessary for them to inquire and ascertain how Butcher held. When Butcher failed to pay the purchase money at the time he agreed to, appellants became entitled to the possession of the mill, even in the hands of a bona fide purchaser, and to sue for and recover it at any time during the period prescribed for the bringing of such suits by the statute of limitations.”

Now, the theory upon which the vendee is permitted to assert a superior claim over that of a purchaser from his vendee is that the legal title was originally in the vendor -and never passed out of him. But this rule necessarily implies that the legal title must be in the vendor. Unless one has the title already, he cannot retain it. The turning point in the present case therefore is whether or not Campbell ever had legal title which he could retain, subject to the condition of the final payment of the purchase price. The evidence is undisputed that, the title to the property in controversy was in a copartnership composed of Campbell and Gray. Neither of the partners had the legal title, but each owned an equity, Which was “only the right to share in the surplus remaining after the debts were paid and the partnership affairs adjusted.” Ringo v. Wing, 49 Ark. 457. It follows therefore that Campbell, having no legal title to the property in controversy, could not retain title as security for the purchase price. The contract between him and Gray was not either an acquisition or retention of the legal title, but' merely constituted a sale and transfer of his equity.in the partnership assets. This interest was extinguished by the sale to Gray, and the title held by the partnership became vested in Gray as the successor of the copartnership, and he had both the legal and equitable right to dispose of the property. The sale to Parker, or to the new firm composed of himself and Parker, constituted a transfer of title. The attempted reservation of title by Parker was ineffective, and the trial court erred in holding that he was entitled to recover possession.

The judgment in favor of appellee Campbell is therefore reversed, and his action dismissed.


author: McCulloch, C. J.

text:
    McCoy & Son v. Atkins.
    Opinion delivered January 19, 1925.
    Chattel mortgages — sufficiency of account. — Under Crawford & Moses’ Dig., § 7403, requiring as a prerequisite to the foreclosure of, or the replevy under, a chattel mortgage that the mortgagee furnish to the mortgagor a verified statement of his account, held that the statement is sufficient if it furnishes reasonable information as to the state of his account, and its efficacy is not affected by such inaccuracies as showing credit by cash When it was by goods or where one or more items of credit was composed of credits for several articles.
    Appeal from Cleveland Circuit Court, Turner Butler, Judge;
    reversed.

      George Brown, for appellants.
    The statement objected to by the defendant was veritied, and gave the items of debit and credit, and the balance due.’ It was of such a nature that a man of ordinary intelligence could readily understand it, and it was therefore a sufficient compliance with the statute. C. & M. Digest, § 7403.

      Woodson Mosley, for appellee.
    The statement did not conform to the requirements of the statute, C. & M. Digest, § 7403, which is mandatory. 92 Ark. 313. The credit side of the statement is at best a mere summary, and gave the defendant no opportunity to adjust any differences. 65 Ark. 316.
   McCulloch, C. J.

This is an action instituted by appellant against appellee to recover the possession of three mules and an automobile conveyed by mortgage executed by appellee to appellant. Before the conmeneement of the action, appellant furnished-a verified statement of the account claimed to be due under the mortgage, but, at the trial of the case, appellee challenged the sufficiency of the account by a motion to dismiss the action, which said motion the court sustained.

The only question presented on this appeal is whether or not the verified account was in form sufficient to constitute compliance with the statute, which provides, as a prerequisite to the foreclosure of a chattel mortgage, that the “mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due.” Crawford & Moses’ Digest, § 7403. The debit side of the account is fully itemized, and there is no contention in that particular that that part of the account falls short of the statutory requirement. The credit side of the account furnished is as follows:

Date Items Int. Credit

Nov. 16:20.................. By cash........................ $4.87........................$ 90.90

Nov. 17........................ By cash..........._........... 1.00........................ 18.72

Nov. 17........................ By cash........................ 3.25........................ 59.64

Apr. 21........................ By cash........................ 5.80........................ 299.18

July 2-21..................... By cash............................................................... 179.36

Oct. 31-22............................................................................................................ 141.92

Int. on payment to June 1-21......................................... 14.92

Jan. 1, 1923, Bal.....................................................................................$1,153.53

The contention of counsel for appellee, in support of the court’s ruling, is that the credit side of the account is insufficient, for the reason that it is not shown by testimony in the case whether the first three items were paid by the delivery of cotton or whether they were actually paid in cash, and there was evidence introduced tending to show that the -other items of credit listed were not in cash, but were accounts for ties manufactured by several persons and delivered to. appellant for appellee on his account.

We are of the opinion that the account, on its face, constitutes sufficient compliance with the statute, and its effect as a compliance with the statute is not changed by the fact that it may have contained inaccuracies, such as those mentioned above. It has been decided by this court that the statute is mandatory, and that the purpose of it is to give notice to the mortgagor of the amount claimed, and to give him an opportunity to satisfy the account without being subjected to the expense and annoyance of a lawsuit. Lawhon v. Crow, 92 Ark. 313. The account, however, is not required to be furnished as evidence in the ease, and it is not essential that it come up to the -fixed rules of evidence to establish the validity of the account, and it is sufficient if it affords reasonable information to the mortgagor as to the state of his account. The statute requires that the account be itemized. This does not mean that an action is defeated simply because the account contains inaccuracies. If the account is made in good faith and affords reasonable information, it is sufficient. The statute contemplates more than a mere statement of a lump sum, but here we have a statement which purports to give the items. Nor is the efficacy of the account affected by the fact that one or more of the items of daily credit are composed of a collection of credits for ties or other articles furnished as a credit on the account. The credit entered was sufficient to reasonably apprise the mortgagor of the amount with which he was credited on that day and to put him upon inquiry as to the correctness of the account, and give him an opportunity to ascertain its correctness, and to pay such balance as he conceded to be correct.

The court erred in dismissing the action, and the judgment is therefore reversed, and the cause remanded with directions to reinstate the action and for further proceedings.


text:
    Culpepper v. Mathews.
    Opinion delivered January 19, 1925.
    1. Elections — primary contest — “citizens” defined. — Under Crawford & Moses’ Dig., § 3772, providing that the complaint in a contest for a nomination “shall be supported by the affidavit of at least ten reputable citizens,” the word “citizens” is synonymous with “electors,” and such affiants must be of the same political party with the contestant.
    2. Elections — primary contest — supporting affidavit. — Under Crawford & Moses’ Dig., § 3772, requiring that the affidavit in support of a primary election contest “shall be filed within ten days of the certification complained of,” such affidavit is jurisdictional and must be filed within the time specified.
    3. Elections — primary election — right to vote — In determining the political status of one who claims the right to vote in a primary election or to sign the supporting affidavit in a contest thereof, the rules of the party conducting the primary are conclusive.
    4. Elections — primary contest — evidence.-—Evidence held to sustain a finding that some of the ten necessary signers of the affidavit supporting the complaint in a primary election contest were not members of the same political party as the contestant.
    Appeal from Grant Circuit Court; Thomas E, Toler, Judge;
    affirmed.

      Isgrig & Dillon, for appellant.
    The second and third paragraphs of complaint state a cause of action, in that they allege a total number of votes not credited to the appellant in two townships of 115, whereas the appellee’s admitted plurality was 79. The demurrer admits these facts. 133 Art. 163. The complaint was supported by the affidavit of twelve citizens of Grant County and was in conformity with the statute. We must look to the rules of the Democratic Party of the State to determine who are members thereof and entitled to participate in the primary election conducted by it. 148 Ark. 585; 149 Ark. 343. The supporting affidavit affirmatively stated that the affiants were citizens, qualified electors and Democratic’voters of Grant County. The burden of proving otherwise was on the appellee, and that burden has not been met by any convincing testimony showing disqualification of any of the affiants. Neither was there any competent proof that any of the affiants had violated any of the rules of the party. 165 Ark. 565. The demurrer on the ground that there was a third candidate for the office of sheriff, who was not made a party, and that this constituted a defect of parties, is not tenable. He did not receive a certificate of nomination, and was not a necessary party. C. & M. Digest, § 3772; 136 Ark. 217. Section 44 of the rules of the Democratic party merely pledged a candidate in the primary, who may be defeated, from becoming a candidate in the general election in opposition to the regular nominee, and has no reference to contesting a certificate of nomination.

      Sidney J. Reid, T. Nathan Nall and Rowell & Alexander, for appellee.
    The complaint in this case falls squarely within the rule laid down in the case of Hill v. Williams, 165 Ark. 421, and the demurrer was properly sustained. A. V. Hope, the third candidate for sheriff, was not made a party. Demurrer is proper where there is a defect of parties. C. & M. Digest, § 1189. The burden of proof is on the contestant. 160 Ark. 269, 273; 165 Ark. 421; Id. 455. It is not permissible for any voter to vote in a primary election of any political party who is not a member of such party. 148 Ark. 85, 90. The affidavit of ten reputable citizens attached to the complaint is jurisdictional. 136 Ark. 217; 145 Ark.' 585; O. & M, Digest, § 3772.
   McCulloch, C. J.

This appeal involves a contest over the Democratic nomination for the office of sheriff: of Grant County, appellant and appellee and another person being the rival candidates. Appellee was returned as the successful candidate, and a certificate of nomination was awarded to him. Appellant instituted the contest, alleging fraud in the issuance of poll-tax receipts and in counting the returns of the votes cast, and he filed with his complaint the supporting affidavit of twelve persons, purporting to be reputable citizens of the county and members of the Democratic Party. Appellee filed a special plea, challenging the jurisdiction of the court on the ground that the supporting affidavit was not made by ten persons qualified under the statute, in that some of them were not members of the Democratic Party. The case was heard by the court on oral testimony concerning the political status of the persons signing the affidavits, and, after hearing the evidence, the court sustained the motion and dismissed appellant’s complaint.

There were twelve persons who signed the affidavit, and there was evidence tending to show that four of them were not members of the Democratic Party, but, on the contrary, were members of the Republican P'arty. While there was some testimony to the effect that these men, or some of them, were at times permitted to vote in the Democratic primary, there was evidence tending to show that they had openly declared themselves to be Republicans and affiliated with that party, some of them having voted for the Republican candidates at the pre-‘ ceding election, and others having attended Republican conventions and served on committees in the organization. of that party. The evidence was legally sufficient to warrant the finding by the court that each of these four men were Republicans and not Democrats. There was another one of the persons whose political status was challenged as a Democrat — a man named Jeff coat — and it was claimed that he was a Socialist, and not a Democrat. The testimony against him is manifestly weaker in degree than that against the others, and we need not discuss the question whether or not the evidence is sufficient to show that he is not a Democrat.

We have concluded that the evidence is sufficient to warrant a finding that the four persons alleged to be Republicans were, in fact, members of that party, and, since the elimination of their names reduces the number of the affiants to eight, which is below the statutory number required, it is unnecessary to determine whether any more of the affiants were lacking in qualifications.

The statute (Crawford & Moses’ Digest, § 3772) provides, in substance, that the complaint in a contest for a nomination “shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of.” We decided in Simmons v. Terral, 145 Ark. 585, that the word “citizens ’ ’ as used in the statute is synonymous with the word “electors,” and in Ferguson v. Montgomery, 148 Ark. 83, we held that the language used in the section of the statute referred to clearly implies that the affiants must be members of the same political party with the contestant.

In Logan v. Russell, 136 Ark. 217, it was held that the filing of the supporting affidavits within ten days, as required by statute, was essential in order to give the court jurisdiction to entertain the contest.

At the trial of the case there was introduced in evidence a copy of the rules of the Democratic Party, and it appears therefrom that § 2 of the rules provides that membership in the party “shall consist of all eligible and legally qualified white electors, both male and female, who have openly declared their allegiance to the principles and policies of the Democratic Party, as-set forth in the platform of the last preceding Democratic National and 'State convention, who have supported the Democratic nominees in the last preceding elections, and who are in sympathy with the success of the Democratic Party in the next succeeding' election.” This is a very broad definition, and we think the court was warranted in finding that the four persons named as being Republicans were such, in fact, and that they were not Democrats within the qualifications prescribed by the rules of the party.

It will be observed that, in order to become qualified to vote in a Democratic primary, a person must not only be a qualified elector and shall have supported the Democratic nominees in the last preceding election, but must also be one who has openly declared his allegiance to the principles and polices of the Democratic Party, and must be in sympathy with the success of the party at the next succeeding election.

We decided in Ferguson v. Montgomery, supra, and in Crawford v. Harmon, 149 Ark. 343, that the rules of the party are controlling in determining the political status of one who claims the right to vote, or to sign the supporting affidavits in a contest.

There being sufficient evidence to support the finding of the court, there is no error in the proceedings, and the judgment must be affirmed.


author: Hart, J.,

text:
    Newburger Cotton Company v. Stevens.
    Opinion delivered January 19, 1925.
    1. Trover and conversion — unauthorized sale by warehouseman. — One who buys and disposes of cotton belonging to plaintiff from a warehouseman having no authority to sell same is liable for its conversion, though he acted in good faith.
    2. Trover and conversion — measure of damages. — The measure of damages for the conversion of an article such as cotton, the market value of which is liable to frequent and great fluctuation, is the highest price for which the same grade has been sold between the time of conversion and a reasonable time after notice to the owner of the conversion.
    Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      STATEMENT OP PACTS
    Appellees instituted separate actions in the circuit court against appellant for the wrongful conversion of certain bales of cotton described in their respective complaints. By consent of both parties the suits were consolidated and transferred to the chancery court.
    It appears from the record that A. L. Gray was engaged in selling general merchandise at Prairie View, Logan County, Arkansas. According to the testimony of A. L. Gray, the cotton in controversy in this suit was placed by appellees in his warehouse to be stored there and kept by him until he was directed to sell it. A. L. Gray was a customer of the Lesser-Goldman Cotton Company at Fort Smith, Arkansas, and was indebted to it in a large sum. He shipped to that company 600 bales of cotton, including the cotton in controversy. He did this because said company requested him to do so, and because it had a better warehouse for storing the cotton. T. M. Mason Cotton Company was also a cotton dealer at Fort Smith, Arkansas, and T. M. Mason was the manager of that company. The Lesser-Goldman Cotton Company insisted on Gray selling the cotton in its warehouse for the purpose of paying it the indebtedness owed to it by him. T. M. Mason, for the T. M. Mason Cotton Company, actually made the sale. Gray heard Mason talking over the telephone to the Newburger Cotton Company at Little Bock, Arkansas, about the sale of the cotton. The cotton in question was at this time in the hands of the Lesser-Goldman Cotton Company, and Mason was selling the cotton for that company. We quote from his testimony the following:
    “Q. Mr. Gray, you state that all of the cotton embraced in this case, with the exception of a few bales mentioned in your direct examination was sold to New-burger Cotton Company? A. That was my understanding. Q. The deal was made by telephone? A- I think it was. Q. After the deal was closed, state whether you billed the cotton to Newburger Cotton Company, and state who assisted you in doing so? A. I assisted one of the clerks of Lesser-Coldman Cotton Company at Fort Smith in making ont the invoices to Newburger 'Cotton Company. Q. Did you list the cotton which yon have just testified was sold to Newburger Cotton Company? A. It was in that list of about six hundred bales on consignment to Lesser-Coldman Cotton Company. Q. In that inventory did yon invoice the shipping number of all the bales involved in these suits with the exception of a few bales mentioned in your direct testimony? A. I don’t remember making the invoices, but they were made in the code that was consigned to Lesser-Coldman Cotton Company. Q. All these numbers were among the consigned cotton? A. Yes sir. Q. Did you say a draft was attached to the invoices? A. Yes sir. Q. These statements contain a list of the various cotton consigned to Lesser-Coldman Cotton Company, and afterwards sold to the defendant, Newburger Cotton Company? A. Yes, I sold that to Newburger Cotton Company. Q. In your invoice of the cotton which you sold to Newburger Cotton Company, the list embraces all these suits with the exceptions of four or five bales? A. Yes. To my recollection all were in that invoice. Q. A draft was attached to the invoice? A. Yes.”
    Again, Cray testified that the cotton in controversy in this case was included in the cotton that was invoiced to Newburger Cotton Company. The cotton was sold about the first of August, 1921, at ten cents the pound, and .that was the fair'market value of it. Some time in September following the market value of cotton was about twenty-one cents the pound. Cray admitted that appellees came to him about the 10th of September, 1921, and demanded their cotton or a settlement for it. When they found that he had sold the cotton, they demanded the price of cotton at that time, which was twenty or twenty-one cents the pound.
    All of the appellees were witnesses for themselves. According to their testimony, they placed the cotton in question with A. L. Cray to be kept for them in his warehouse and to be sold when directed by them. They never directed him to sell the cotton, and did not know he had sold it until about the 10th of September, 1921. They went to him at that time for the purpose of directing him to sell it, and, for the first time, found that he had already sold it. They then demanded that he should pay them the market price of cotton at that time. The suit was originally brought against the Lesser-Goldman Cotton Company and the Newburger Cotton Company. A nonsuit was taken as to the Lesser-Goldman Cotton Company and a decree rendered in favor of appellee against the Newburger Cotton Company. The case is here on appeal.

      Coleman, Robinson <& Hous'e, for appellant.
    It is essential to a right of recovery in this action to prove a conversion by the defendant, and it is necessary for the plaintiff to prove that the cotton was appropriated by it to the exclusion of the plaintiff. 34 Ark. 421. The only testimony on which a conversion could be found is on the testimony of what Mason told Gray, and that was clearly incompetent, since Mason did not testify. 195 S. W. 683. Appellee cannot rely on the invoice which Gray says he assisted in making out. 91 U. S. 618, 630; 150 Ú. S. 312, 328; 203 S. W. 917. Damages for conversion of personal property, where the tortfeasor is acting in good faith without illegal motive-or wrongful intent, should be the same in case of commodities with fluctuating values as in the case of commodities with stable values, viz.: the value of the commodity at the time of the conversion. If the cotton was bought by Newberger Cotton Company from Lesser-Goldman Cotton Company, it was in good faith and without any knowledge- that it did not belong to the latter company. 158 Ark. 619; 25 Atl. 1043; 79 S. W. 836 ; 208 S. W.‘ 224; 20 Atl. 429; 138 Pac. 910; 134 -S. W. 767; 250 S. W. 898; 57 Ark. 92; 20 S. W. 913; 158 Ark. 24.

      G. O. Patterson, for appellees.
    The question as to whether or not there was a conversion is settled by the finding of the trial court. The court did not, in fact, base its judgment for damages upon tbe highest market value between the conversion and the day of trial, although we think that would have been proper, under the trend of recent decisions. 26 E. C. L. 1151; L. E. A. 1917B, 787. The rule applied by this court in cases of wrongful cutting and conversion of timber, the trespass being wilful, was not followed by the trial court, but the reason for the application of that rule would apply to the facts in this case, because here there was a wilful, wrongful and intentional conversion. 69 Ark. 302; 130 Ark. 547; 158 Ark. 619.
   Hart, J.,

(after stating the facts). It is earnestly insisted that the evidence is not sufficient to warrant the chancery court in finding that there was a conversion of the cotton by the Newberger Cotton Company. We cannot agree with contention of counsel for appellant. According to the testimony of A. L. Cray, he shipped 600 bales of cotton from his warehouse in Prairie View, Logan County, Arkansas, to Port Smith, Arkansas, and the cotton in question was in the lot. The Lesser-Cold-man Cotton Company insisted on allowing it to sell the cotton, and T. M. Mason, of the T. M. Mason Cotton Company of Port Smith, was employed to make the sale. Cray heard Mason talking with somebody at Little Eock about the sale of the cotton, and understood that there was an agreement to -sell it for ten cents the pound. After the conversation on the telephone was closed, he assisted in making an invoice -of the cotton and consigning it to the Newburger Cotton Company at Little Eock, Arkansas. The cotton in controversy was included in the list of cotton shipped by the Lesser-Coldman Cotton Company at Port Smith to the Newburger Cotton Company at Little Eock. The latter company paid the Lesser-Cold-man Cotton Company for the cotton, and refused to pay aupellees for it. Practically the undisputed testimony shows that -neither Cray nor the Lesser-Coldman Cotton Comoany had permission from the apoellees, who were the owners of the cotton, to sell it. It is true that appellant purchased the cotton upon the faith that the Lesser-Goldman Cotton Company had the right to sell it, and that the latter company sold it believing it had a right to do so as the cotton factor of A. L. Gray. These facts, however, do not relieve appellant from liability. Appellant’s liability to appellees rests upon the ground that it has converted, though in good faith, and under a mistake as to its rights, the property of the appellees. Appellant is therefore liable to respond in damages for the value of the cotton.

It is next contended by counsel for appellant that the measure of damages for the conversion of the cotton is the value of the cotton at the time of the conversion. This is the general rule, but it has been modified with respect to the conversion of property the market value of which is liable to frequent and great fluctuation. The proper measure of damages for the conversion of cotton, which is subject to depression and inflation of price in the market, is the highest price for which the same grade of cotton has been sold between the time of the conversion and a reasonable time after notice to the owner of -such conversion; in other words, the price at which the owner might have replaced the cotton within a reasonable time. Galigher v. Jones, 129 U. S. 193; Wright v. Bank of Metropolis (N. Y.), 1 L. R. A. 289; 6 Am. St. Rep. 356, 18 N. E. 79; Dimock v. U. S. Nat. Bank (N. J. L.), 39 Am. St. Rep. 643; Citizens St. R. Co. v. Robbins (Ind.), 42 N. E. 916; Brewster v.Van Liew (Ill) 8 N E. 842; and Wiggin v. Federal Stack, etc., Co. (Conn.), 59 Atl. 607.

Judge Peckham, who delivered the opinion in the case cited above from New York Court of Appeals, said that justice and fair dealing are both more apt to be promoted by adhering to the rule which imposes the duty upon the plaintiff to make his loss as light as possible, notwithstanding the unauthorized act of the defendant. It has been well said that to adopt the value as existing at the time of actual conversion would enable the wrongdoer to make the market for the owner and deprive him of his cotton, whether he so wills or not.

On the other hand, to adopt the highest value between the time of actual conversion and the trial would be to encourage the owner to delay and speculate upon the chances of hig*her markets without assuming the chances of lower markets. Justice can only be done in such cases by requiring the factor or broker to pay a sum sufficient to put the other party in a position as good as he had before the sale, and this can more nearly be done by holding the true and just measure of damages in these cases to be the highest intermediate value of the cotton between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the cotton.

There is nothing in the case of Hudson v. Burton, 158 Ark 619, which conflicts with this rule. In that case the landlord had a lien on his tenant’s crop for supplies furnished him to make and gather the same. The tenant moved away from the place, without paying his account. The landlord, under our statute, was entitled to the possession of the crop, in order that he might subject it to his lien for supplies furnished the tenant. He took possession of the property without resorting to law; but he had a lien on the property, which he might have asserted in the courts, and for that reason he was .only held liable to the tenant for the value of the crop at the time of its conversion.

In the case before us, appellant had no lien of any kind whatever on the cotton, and the rule announced above applies for the reasons given. The cotton was sold about the first of August, 1921, and the owners found out about it about the 10th of September, 1921. Cotton at that time had doubled in value, and the owners demanded the market value of that date.

Under the rule announced above, the finding of the chancellor in favor of appellee was fully justified by the evidence, and the decree will therefore be affirmed.