author: MoCulloóh, C, J.

text:
    Hume v. Indiana National Life Insurance Company.
    Opinion delivered November 6, 1922.
    1. Pledge — contract construed. — A contract reciting that a reinsurance contract and certain mortgage indebtednesses were assigned as “the absolute property” of the party of the first part, named therein, held to constitute merely a pledge where the contract further stipulated that the reinsurance contract and mortgage indebtedness were to be held merely as collateral security.
    2. Mortgages — payment—burden of proof. — In an action to foreclose a mortgage, the burden of proof is on a party who pleads payment.
    3. Payment — taking note op a third person. — The assignment by a mortgagor to the mortgagee of notes of a third person does not constitute payment, in the absence of proof that the notes were so accepted; the presumption being that they were taken only as security.
    4. Mortgages — right to declare debt due. — Where a mortgage required the mortgagor to keep the taxes paid, and authorized the mortgagee, on the mortgagor’s failure to comply with the terms of the mortgage, to declare the entire amount due, the mortgagee, on the mortgagor’s failure to pay taxes, was authorized to declare the principal debt due and to foreclose the mortgage in nonpayment thereof.
    5. Mortgages — defense dp junior lienor. — A foreclosure decree should not be set aside at the request of a junior lienor, after the prior lien has matured, merely because the foreclosure suit was instituted before its maturity.
    6. Mortgages — title op mortgagor. — The mere fact that a conveyance to E. designates him “trustee,” and that he executes a mortgage by the same designation, does not create a trust, and it will be presumed, in an action to foreclose the mortgage, in the absence of a showing of the existence of a trust, that the legal title was in the mortgagor.
    7. Trusts — enforcement by junior lienor. — In an action to foreclose a mortgage in which the mortgagor describes himself as “trustee,” in which no objection was raised by the beneficiary . as to the trustee’s authority to execute the mortgage, a junior lienor could not-raise that question.
    Appeal from Arkansas Chancery Court, Northern District; Jolm'M. Elliott, Chancellor;
    affirmed.

      Frank L. Hume, and Buzbee, Pugh & Harrison, for appellant.'
    The mortgage was invalid in that the trustee had no authority to execute the mortgage. 39 Cyc. 381; 14A Corpus Juris, p. 1358, sec. 2653; 17 Ark. 438 ; 68 Fed. 1006; 81 Tex. 16; 16 S. W. 639; 66 Wis. 160; 57 Am. Rep. 256; 28 N. W. 369; 114 da. 719; 40 Atl. 791; 122 Iowa 402; 98 N. W. 135; 80 Fed. 236; 25 C. C. A. 389.
    The foreclosure of the mortgage was premature, 27 Cyc. 1595. There was no default of payment alleged in the complaint. 19 Standard Enc. of Proc. 949.
    The allegations in the complaint must set out the breach of the conditions of the mortgage to give the court jurisdiction to foreclose. Wiltsie on Foreclosing Mortgages, 3rd. ed., sec. 360.

      John L. Ingram, for appellee.
    A mortgage of trust property is valid regardless of whether it was authorized or not, where it is clearly assented to or ratified by the cestui que tru,st. 39 Cyc. 183.
    The writ was never levied. C. & M. Dig., sec. 507. The return of the sheriff was defective, in that it did not describe any land. C. & M. Dig., sec. 6982.
   MoCulloóh, C, J.

Appellee instituted this action in the chancery court of Arkansas County to foreclose a mortgage, dated December 29, 1916, executed to it by H. M. Evans, trustee, on certain lands in that county, to secure the payment of a note in the sum of $22,000, with interest notes payable semi-annually. Certain -other parties, in addition to Evans, were joined as defendants upon the allegation that they claimed interests in the mortgaged property, among others the appellant Hume, who had obtained a judgment in an Indiana court against the Liberal Life Assurance Company, of Anderson, Indiana, for the sum of $821, and had, prior to the institution of appellee’s foreclosure suit, commenced an action upon the Indiana judgment in the circuit court of Arkansas County and caused an order of general attachment to be issued against the property of said Liberal Life Assurance Company. All of the defendants in the action were nonresidents of this State and were brought in by publication of a warning order. An attorney ad litem was appointed for the nonresident defendants, in accordance with the statutes, but none of the defendants appeared prior to the rendition of the decree.

The mortgage and note and interest coupons were introduced in evidence, and the court rendered a decree in favor of appellee, foreclosing the mortgage and finding the debt to be $24,954.56, and directing court’s commissioner to sell the mortgaged property. The property was sold by the commissioner, and brought at the sale the aggregate sum of $10,125, appellee being the purchaser of one of the tracts for the sum of $4,000, and the remainder of the land being sold to C. E. Shearman, who was not a party to the action. The sales by the commissioner were duly reported by the commissioner and confirmed by the court, and deeds were executed pursuant to the terms of the sale, under orders of the court.

Within two years after the rendition of' the decree,' appellant Hume appeared and filed his application under the statute (Crawford & Moses’ Digest, § 6266) to have the cause retried as to him, and upon giving bond for costs, as required by the statute, the court ordered a retjfial of the cause as to the rights of appellant. Appellant then filed an answer presenting the following defenses: first, that there had never been an indebtedness to appellee by the mortgagor in the sum claimed; second, that the indebtedness secured by the mortgage had been fully paid; third, that the mortgage debt was not due at the time of the commencement of the action; and fourth, that the mortgage was invalid because the mortgagor conveyed only as trustee and without authority from the cestui que trust.

On the final hearing the court decided the issues against appellant and rendered a decree reaffirming the terms of the original decree and denying appellant’s right to assert a lien against the appellee. The cause was heard upon the pleadings and exhibits, including the mortgage and notes, and upon the deposition of one Eudd, the treasurer of appellee corporation, who exhibited with his deposition a certain contract between appellee and Evans, the mortgagor.

Appellee is an Indiana corporation, engaged in the life insurance business at the city of Indianapolis, and the Liberal Life Assurance Company of Indiana is likewise a corporation engaged in the insurance business at Anderson, Indiana, and the latter entered into a contract with the former for reinsurance of the latter’s business, but the récord does not embrace that contract. It appears, however, from the testimony of witness Eudd, that this was a speculative contract, as it was uncertain whether it would finally result in profit or in loss to the Liberal Life Assurance Company. This depended upon whether the reinsurance resulted in profit or in loss.

Business relations had also existed between the Lib.eral Life Assurance Company and the Pittsburg Bank for Savings, of Pittsburg, Pennsylvania, and the Liberal Life Assurance Company had become largely indebted to said banking institution, and had assigned to the bank its reinsurance contract with appellee as collateral security for a debt of $27,318.74. The Liberal Life Assurance Company had also assigned, as collateral, to said bank two notes executed by Sidney G-. Brain and Francis E. Brain for $10,000, which were secured by a mortgage on land.

On the date of the execution of the mortgage in controversy by Evans as trustee to appellee, these two parties, appellee, and Evans acting as such trustee, entered into a written contract setting forth in extenso the contract between the Liberal 'Life Assurance Company and the Pittsburg Bank for Savings, which recited that the company was indebted to the bank “in the sum of $27,318.74, evidenced by a note and secured by collateral-in the form of reinsurance contract entered into between the two said named life insurance companies and two certain mortgage indebtednesses executed by Sidney G-. Brain and Francis E. Brain, each for $10,000, as well as a lot of other mortgage indebtedness, some of which have been foreclosed upon by the receiver for the said bank.”

The contract between the parties then contains the following clause relative to the purchase by appellee of the debt and collateral securities from the Pittsburg bank:

“Now, it is mutually agreed by the parties hereto that the said first party has taken an assignment of said reinsurance contract and has purchased said two Brain mortgage indebtednesses from Gr. H. Getty, as receiver of said Pittsburg Bank for Savings, at and for the price of $27,318.74, the same to be divided as follows:

“For said two Brain mortgages indebtednesses...........................................................................$15,318.74

“Advance on reinsurance contract......... 12,000.00

“And said two Brain mortgage indebtednesses and said reinsurance contract shall be the absolute property of the said first party hereto, subject to the terms and conditions hereinafter stipulated.”

There are numerous other recitals in this contract, which are unnecessary to set forth, but there are certain other clauses which throw light upon the character and extent of the indebtedness secured by the mortgage in controversy.

The contract provided that appellee should keep an account of the proceeds derived under the reinsurance contract and charge the Liberal Assurance) Company with any deficit, and credit it with any profits derived therefrom.

The contract contains the following stipulations concerning the execution of the mortgage in controversy :

“The second party has this day executed his note for $22,000, payable to the first party hereto, secured by a mortgage on certain real estate in Arkansas County, in the State of Arkansas, owned by him as trustee, and acquired by said conveyance from said receiver, which said note and mortgage are made a part hereof as fully and completely as though set out herein in full.”

The following stipulations in the contract are also deemed to be material to the present controversy:

“It is understood and agreed that, should there be any deficit in any of the assets turned over by said Liberal Life Assurance Company of Indiana for reserve, as aforesaid, to the said first party, the same shall be a charge against the second party hereto, and he agrees to repay the same, with interest thereon at the rate of six per cent, per annum, to the first party, and it shall be a part of said mortgage indebtedness this day executed. Likewise, should there be in the future coming to the second party hereto on said reinsurance contract any amount less than $12,000, such sum, together with interest thereon, shall be a charge against the second party hereto, and he agrees to repay the same, but, should there be an excess of $12,000 on said reinsurance contract, the same shall be credited to the second party’s indebtedness this day created. * * * *

“It is agreed that whenever said contract between said Pittsburg Bank for Savings and said Liberal Life Assurance Company of Indiana shall have been fully carried out and any and all sums to be paid by the second party to the first party, as herein stated, shall have been paid-, and first party shall have received from said two Brain mortgage indebtednesses, said reinsurance contract and the mortgage indebtedness this day created, the sum of $27,318.74, together with interest thereon at the rate of six per cent, from this day, and shall have been allowed to retain the $5,000 discounts made on said two Brain mortgages, and shall have been repaid any and all sums for making up the deficits as herein mentioned, then the first party hereto agrees to cancel said mortgage indebtedness this day created.”

The contention of counsel for appellant is that, under the terms of the contract, only the sum of $12,000 can be treated as an advance by appellee so as to bring it within the mortgage indebtedness, and that the remaining sum of $15,318.74 was merely used in the purchase of the Brain notes.

It will be observed that in a clause of the contract which we have just quoted it is expressly stated that not only the Brain mortgage indebtedness, but also the reinsurance contract, should become the absolute property of appellee, but the other stipulations in the contract show clearly that not only the Brain mortgage but the reinsurance contract were to be held merely as collateral security for the amount paid by appellee to the bank. The contract expressly provides, notwithstanding the fact that it reads that the reinsurance contract is to be the absolute property of appellee, that the latter should keep an account of the profits and losses under the reinsurance contract, and account to the trustee of the assurance company for any profits and charge him with any deficit which might arise.

The last clause copied shows very clearly, too, that the whole sum of $27,318.74 paid to the Pittsburg Bank for Savings was to be treated as an advance to the Liberal Life Assurance Company, and that not only the Brain mortgages but likewise the reinsurance contract was to be held as collateral security. This clause of the contract provides that when the appellee “shall have •received from said two Brain mortgage indebtednesses, said reinsurance contract and mortgage indebtedness this day created, the sum of $27,318.74, together with interest thereon at' the rate of six per cent, from this day, and shall have been allowed to retain the $5,000 discount made on said two Brain mortgages, and shall have been repaid any and all sums for making up the deficits as herein mentioned, then the first party hereto agrees to cancel said mortgage indebtedness this day created” —meaning, of course, the mortgage in controversy.

When these transactions are read together, it is clear that the parties intended that appellee was to hold the Brain notes and the reinsurance contract as collateral security, and that the mortgage and notes in controversy were also executed on the lands in Arkansas as further security for any indebtedness which existed or might arise under that contract.

The next contention is that the mortgage debt has been paid, but this contention is based upon the theory that the debt only amounted to $12,000, and, as we have already seen, this is not correct.

Appellee made out its cáse by the exhibition of the mortgage and notes in controversy, and the burden of proof was on appellant to make good his plea of payment. The universal rule on this subject is that the burden of proof rests upon the party who pleads payment of a debt. Authorities on this subject are so numerous and unanimous that it is unnecessary to cite them. Wé fail to discover any reason for not applying that rule to the facts of the present case. It is neither alleged nor proved in the case that there was any fraud or collusion between the parties to the mortgage, nor does it appear that the facts in regard to the transactions between the parties are peculiarly within knowledge of appellee so as to place upon it the burden of making disclosures. Mr. Rudd, the treasurer of appellee corporation, was examined as a witness by appellant, and disclosed all the facts in relation to these transactions, and produced all the papers asked for. All the facts upon which appellant bases his claim of payment of the mortgage debt rest upon Rudd’s testimony, and it is not contended that there was anything undisclosed about the transactions between the parties. The contention as to the payment of the debt is based upon the receipt by apnellee of the notes of three persons, Shutt, Tindall and Kinney, aggregating $15,800. The facts in regard to this transaction are fully disclosed by Rudd in his testimony, and are undisputed.

It appears that the Pittsburg bank had a prior lien on some of the lands embraced in the mortgage to appellee, and appellee’s mortgage was therefore subordinate to those liens. After the execution of the mortgage to appellee these lands were sold by the receiver, with appellee’s consent, to Shutt, Tindall and Kinney, respectively, for the sums of $4,000, $4,800, and $7,000. The bank’s claim and lien on these lands was only held as collateral security, and the receiver took notes from these purchasers and assigned, them to appellee. Rudd testified that he received payments on these notes, aggregating $6,120.98, and that under the contract four-elevenths of that sum, amounting to $2,225.80, was paid to the Port Dearborn National Bank of Chicago, on the debt of the Liberal Life Assurance Company to that concern, leaving a net amount of $3,895.18, in cash, to be applied by appellee. Rudd was not asked to state in detail the purpose of the transfer of these notes to appellee, and merely stated the fact that the transfers were made. Appellant, who was examining the witness, rested upon the only statements made by Rudd, without attempting to show whether or not the notes were accepted as payments on the mortgage debt. It has been held in many decisions of this court that the execution or transfer of a note is not a payment of the debt unless it is • agreed that the note is taken in payment. Blunt v. Williams, 27 Ark. 374; Henry v. Conley, 48 Ark. 267; Triplett v. Mansur-Tibbetts Imp. Co., 68 Ark. 230; Estes v. Lamb & Co., 149 Ark. 369.

The court has also held that the assignment by a debtor to his creditor of a note of a third person is presumed to have been done as security and not as payment. Malpas v. Lowenstine, 46 Ark. 552.

Even if the acceptance of the notes as payment pro tanto were shown, it was not sufficient to discharge the full amount of the mortgage indebtedness to appellee, but, as we have already seen, there is no proof to show that the notes were so accepted, and the presumption must be indulged that they were taken only as Security. This is in conformity with the contract between the parties, which shows that everything received by appellee from the Liberal Life Assurance Company was to be taken as collateral, the proceeds of which were to be finally accounted for.

The testimony of Rudd shows that at the time of the last accounting there was a considerable deficit under the reinsurance contract, and, if that is true, the Liberal Life Assurance Company is still_indebted to appellee in a greater portion of the original amount paid by it to the Pittsburg Bank, at least there is sufficient testimony to sustain the finding of the chancellor that the full amount of the mortgage debt is unpaid, or that it was unpaid at the time of the decree in this case.

The purchase price of the lands at the sale was only sufficient to pay something less than one-half of the mortgage indebtedness. There was therefore no error committed by the chancellor in refusing to hold that the debt had been paid, in accordance with appellant’s contention.

It is next insisted that the original action was prematurely instituted, and it is argued that this should defeat recovery by appellee in this case.

It is true that the principal of the mortgage debt was not due at the time of the institution of this suit, but it became due long before appellant contested appellee’s right to foreclose. The foreclosure might well be sustained upon the failure of the mortgagor to pay the taxes on the land; There is a clause in the mortgage requiring the mortgagor to keep the taxes paid on the land, and a further stipulation to the effect that if the mortgagor “shall fail to comply with the terms set up in this deed,or shall fail to pay the note, together with the coupon notes which this deed is given to secure, according to the tenor thereof, the said party of the second part may declare all moneys owing to it and secured by this deed immediately due, and proceed to collect the same.”

The record recites that the cause was heard, among other things, on the certificate of the amount of taxes, but this certificate is not in the record, and we must indulge the presumption that there was sufficient to prove a substantial failure to comply with the terms of the mortgage in regard to keeping the taxes paid.

There are still other reasons why appellant’s contention cannot be sustained as to the immaturity of the right of action at the time it was commenced. Appellant was not a party to the mortgage, but is merely a junior lienor, and has the right only to contest the foreclosure to the extent of his lien. At the time he appeared to assert his lien as against the right to foreclose, the mortgage debt was due, and the mortgagor had made no objection to the foreclosure. Appellant, therefore, occupied the position of a junior lienor, with the prior lien of appellee fully matured at that time, and he could not then complain of the premature institution of the action. We can conceive of no principle of equity upon which a foreclosure decree should be set aside at the request of a junior lienor after the prior lien has matured, merely because it was immature at the time the action was originally instituted.

Finally, it is contended that the decree should be reversed because Evans, as trustee, had no authority from the Liberal Life Assurance Company to make the conveyance.

It is not shown by this record where the legal title to these lands was vested at the time of the execution of the mortgage, but it must be assumed from the record in this case that the-legal title was in Evans. Appellant’s attachment lien was a general one against the property of the Liberal Life Assurance Company, and there was no proof introduced to show a trust in its favor. The mere fact that the lands were held under a deed of conveyance to Evans under the designation “H. M. Evans, trustee,” was not, of itself, sufficient to create a trust. Pharr v. Fink, 151 Ark. 305. Assuming, however, that there was. a trust in favor of the Liberal Life Assurance Company, there had been no objections made by the cestui que trust, and the lack of power was not pleaded in the action by that defendant. Appellant, as a junior lienor, is in no attitude to raise that question where it has not been raised in the action by the only defendant who could have raised it, viz., the beneficiary in the trust.

Our conclusion .is therefore that there is no error in the proceedings, and the decree is affirmed.

Hart and Humphreys, JJ., dissent.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Doyle v. Maxwell.
    Opinion delivered November 6, 1922.
    Judicial sales — confirmation—inadequacy of price. — Under the rule that mere inadequacy of price will not justify a court in refusing to approve a sale unless the inadequacy is so great as to shock the conscience of the court or to amount to evidence of fraud, it was error to refuse to confirm a sale of land for $150 merely because it was claimed to be worth $300.
    Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;
    reversed.
    STATEMENT OP PACTS,
    This is an appeal from an order setting aside a sale, and ordering a resale of land in á mortgage foreclosure suit in chancery.
    The facts in relation to the sale are, in substance, as follows: "W. T. Maxwell, as State Bank 'Commissioner, brought a suit in chancery against Davie Morgan to foreclose a mortgage on certain real estate in Crawford County, Ark. A decree of foreclosure was duly entered of record, and a commissioner was appointed to sell the land on August 27, 1921. Pursuant to the terms of the decree the land was duly advertised and sold to J. M. Doyle for the sum of $150.
    The plaintiff in the foreclosure suit filed exceptions to the confirmation of the sale, by the commissioner. To. sustain the exceptions an affidavit was filed to the effect that the land sold was of the value of $300, and that the affiant offered to pay that amount in cash for it. Whereupon the chancery court found that the purchase price of the land was grossly inadequate, and the sale was set aside, and the land ordered resold by the commissioner. J. M. Doyle, the purchaser at the sale, has duly prosecuted an appeal to this court.

      L. H. Souihmayd and O. D. Thompson, for appellant.
    The court abused its discretion in refusing to confirm the sale and ordering a resale of the land. A judicial sale will not be set aside in the absence of fraud, irregularity or misconduct. 77 Ark. 216. Mere inadequacy of price, however gross, in the absence of fraud and unfairness does not vitiate the sale. 131 Ark. 387; 108 Ark. 366; 56 Ark. 240; 44 Ark. 502.
    Public policy demands that confidence should be had in judicial sales. 86 Ark. 255.

      J. S. Holt, for appellee.
    A sale may be set aside where the inadequacy in price is so gross as to shock the conscience, or raise a presumption of fraud. 17 Am. & Eng. Ency. of Law, 2d. ed., p. 102.
    If the sale has been unfairly made or is for a grossly inadequate price, the owner can object to confirmation. 108 Ark. 370.
   Hart, J.

(after stating the facts). The principles upon which such a sale should be set aside are clearly established by numerous decisions of this court. It is the settled rule of this court that mere inadequacy of price will not justify a court in refusing to approve a sale and in depriving the purchaser of the benefit of his. purchase, unless the inadequacy is so great as to shock the conscience of the court or to amount to evidence of fraud. Stevenson v. Gault, 131 Ark. 397, and Moore v. McJudkins, 136 Ark. 292.

This court has uniformly recognized that it is essential to the interest of those whose property is sold at a judicial sale that prospective purchasers should have full confidence in the safety of the purchase, and that they will not be disturbed for mere inadequacy of price. Inadequacy of price, coupled with other facts showing mistake or unfairness in the sale, have been recognized as grounds for setting aside the sale and ordering a resale.

In the present case inadequacy of price alone was relied upon to set aside the sale. The land was sold for $150, and it was shown by one witness that he would have given $300 for it. This did not amount to such gross inadequacy of price as to indicate fraud or to shock the conscience of the court, and the court erred in setting aside the sale.

It follows that the decree will be reversed and the cause remanded, with directions to the chancellor to confirm the same, and for further proceedings in accordance with the principles of equity.


text:
    Snyder v. State.
    Opinion delivered November 6, 1922.
    1. Criminal law — objection to instruction — sufficiency of showing. — The affirmative showing in .the bill of exceptions signed by the judge that an objection was made and exception, saved to the giving ef a certain instruction was not abrogated by the added statement of the judge that he did not remember whether exception was saved or not.
    2. Criminal law — instruction as to punishment of women. — An instruction that, in the event of a conviction and a term of imprisonment, the defendant will be imprisoned in the women’s re-, formatory, is error and prejudicial.
    Appeal from Pulaski Circuit Court, First Division; JohnW. Wade, Judge;
    reversed.
    J. A. Weas and Lewis Rhoton, for appellant.

      J. S. TJtley, Attorney General, Elbert Godwin and M. T. Hammock, Assistants, for appellee.
   Hart, J.

Annie Snyder prosecutes this appeal to reverse a judgment of conviction against her for voluntary manslaughter charged to have been committed by killing Thos. Stovall in Pulaski County, Ark.

This is the second appeal in the case. See Snyder v. State, 151 Ark. 601. Upon the former appeal the judgment was reversed for the reason that the trial court accepted a jur or who was disqualified because he had a fixed opinion on the merits of the case, based upon a statement of facts by the witnesses on both sides.

Upon the re-trial of the case the cqurt gave to the jury the same instructions as upon the original trial. It is now insisted that the court erred in giving instruction No. 18,' which reads as follows:

“You understand that, in the event of a conviction and a term of imprisonment, the imprisonment will not be in the State Penitentiary, but in the Women’s Reformatory or institution near Jacksonville in this county.” The record also shows the following:

“The defendant at the time objected to instruction No. 18, as given to the ju-ry, objected to the giving of same, which objection was by the court overruled, to which ruling of the court the defendant at the time excepted, and asked that her exceptions be noted of record, which was accordingly done.”

The court added the following: “Mr. Rhoton says that exceptions to all instructions were saved, which the court does not sufficiently remember to affirm or deny.” After copying this statement into the record, the trial judge signed the bill of exceptions which contained the recitals above set forth with regard to giving instruction No. 18.

It is contended by the Attorney General that .the added statement by the trial judge had the effect to show that no exceptions were saved to the giving of instruction No. 18.

We cannot agree with him in this contention. The bill of exceptions as signed by the trial judge expressly recites that an objection was made to the giving of the instruction, and that exceptions were saved to the ruling of the trial court in giving* it. This affirmative showing* of the record could not be abrogated by the mere remark of the trial judge that he did not remember whether or not Mr. Rhoton had saved exceptions to the giving of the instruction. The fact that the trial judge signed the bill of exceptions containing an affirmative showing that exceptions were duly saved to the giving of the instruction, must control here. If the trial judge wished to change the bill of exceptions so as to eliminate the fact that exceptions had not been saved to the giving of instruction No. 18, he should have done so by marking out the language showing* that such exceptions were saved, or he should have, by appropriate language, so indicated. Having allowed the record to remain as prepared and presented to him, he could not eliminate the exceptions by a simple statement that he did not remember about the matter.

Because the record contains an affirmative statement that exceptions were saved to the giving of the instruction, we must consider the assignment of error based upon the court giving the instruction., This being so, it is conceded bv the Attorney General that the- giving of the instruction was erroneous and prejudicial within the rule announced in Pittman v. State, 84 Ark. 292; Bird v. State, 154 Ark. 297, and Mitchell v. State, ante, p. 413.

Our attentioxx was not called to any alleged errors in the instructions upon the fox*mer appeal, and for that reasoxi we did xxot discuss or consider them.

Therefore, for the error ixx giving iixstx-uction No. 18, the judgment must be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Road Improvement District No. 1 v. Henderson.
    Opinion delivered November 6, 1922.
    1. ’Appeal and error — interlocutory order. — An order granting an injunction until a similar ease pending in another court should he determined is interlocutory,' and not final, and an appeal therefrom will not lie.
    2. Mandamus — refusal to exercise jurisdiction. — Where the chancellor issued a temporary restraining order enjoining a road improvement district from collecting benefit assessments or penalties until a case pending in another court involving the validity of the act creating the district should he determined, the refusal to either make the order permanent or dissolve it was a failure to exercise jurisdiction, and mandamus will lie to compel proceeding with the case.
    Appeal from mandamus to Hot Spring Chancery Court; J. P. Henderson, Chancellor;
    mandamus awarded.

      Wm. It. Duffie and L. E. Sanvyer, for appellant.
    The chancery court had full authority to decide the questions before it without waiting for a decision of the Federal court. Congress has in fact expressly forbidden interference upon the part of Federal courts, except in bankruptcy matters. See Barnes’ Fed. Code, sec. 1030-1031; B. S. sec. 720; act March 3, 1911c, 231, sec. 265, 36 Stat. 1162; 37 Stat. 1013.
    Mandamus is the proper remedy where a trial court, awaiting the decision of another court, refuses to decide a cause. 217 U. S. 278 (54 L. ed. 762); 130 Ala. 198; 61 Tex. Crim. 68; 66 Neb. 515; 21 Calif. 419; 57 Mich. 25; 57 Calif. 247; 14 N. J. L. 467; 9 Ark. 241.

      Henry Berger and Mehaffy, Donham <& Mehaffy, for appellee.
    It was a matter within the discretion of the chancellor to determine whether or not it would be proper to suspend sales and collections of penalties on a portion of the property until all could be reached. An appellate court can not control and ought not to coerce the discretion granted a trial court. 3 Ark. 427. See also 9 Ark. 240; 39 Ark. 126; 14 Ark. 368. The issuing of an injunction is not a ministerial act, but one of judicial discretion. 39 Ark. 82; 36 Ark.' 613; 37 Ark. 101.
   Smith, J.

This is an original action in this court for a writ or order commanding the Honorable J. P. Henderson, chancellor of the chancery court of Hot Spring County, to take cognizance of and to render a final decree in the case of Cooper v. Road Improvement District No. 1 of Hot Spring County.

The petition for the writ or order contains the following allegations. Petitioners are the commissioners of Road Improvement District No. 1 of Hot Spring County, which was created by act 16 and'act 143 of the Acts of 1921 (Special Acts 1921, pages 16 and 228).

After the passage of said acts, .the commissioners, in discharge of the duties there imposed on them, organized, and thereafter formulated plans for the proposed improvement, and thereafter assessed the real estate adjacent to the roads, which, according to their plans, are to be improved, with, the benefits to be derived from the proposed improvement. That, after the said district had been so organized and the betterments so assessed, W. H. Cooper and other owners of real estate within said district filed a suit in the Hot 'Spring Chancery Court, numbered 1504, seeking to permanently enjoin the district from collecting any benefits assessed against the lands lying in said district and from carrying out any of their plans of improvement, and it was there prayed that all assessments of benefits be declared void, and that the acts of the General Assembly aforesaid, pursuant to which the said assessments were levied, be declared unconstitutional and void.

That petitioners here (defendants there) were notified of an application for a restraining order to be heard on June 21,1921, and on the hearing'of the said application respondent herein did, on the 29th day of June, 1921, issue a temporary restraining order enjoining defendants from returning any real estate delinquent for the nonpayment o'f the benefits assessed against said lands. Petiturners allege that, under the acts of the General Assembly aforesaid creating said, improvement district, the issuance of bonds or other evidences of indebtedness is prohibited, and the temporary restraining order operates therefore to enjoin any progress towards the com-' pletion of said improvement. That the answer was filed in the injunction suit on June 27, 1921, and both plaintiff and defendant filed numerous depositions of witnesses upon the issues raised by the pleadings, and the taking of testimony was fully completed on July 13, 1921, and the depositions were filed on July 14, 1921. That on July 14, 1921, certain corporations owning lands in said district filed interventions in said cause, adopting the complaint of the plaintiffs, and on the same date defendants filed their answers to these interventions.

That on July 14, 1921, defendants filed in said chancery court a motion to advance the hearing thereof by the chancellor because of the public interest involved, and because the said acts provide for the advancement and speedy hearing of any litigation involving said district; and on the same date defendants also filed a motion praying the dissolution of said temporary restraining order, but both of said motions were denied. That said cause was fully argued and submitted on July 14, 1921, but no final judgment has ever been rendered therein. That thereafter, on October 19, 1921, defendants in said original suit attempted to appeal said cause to the Supreme Court of the State, and on said date lodged a transcript of said cause in the Supreme Court, and that cause was numbered by the clerk of the Supreme Court as No. 7085; but on November 21, 1921, this attempted appeal was dismissed by the Supreme Court on . the ground that the temporary restraining order granted by the Hot Spring Chancery Court was only an interlocutory decree and was not final or appealable. The record contained in said cause numbered 7085 is made a part of the petition herein. That thereafter, to-wit, on June 5, 1922, petitioners renewed the motion to hsCve the said temporary restraining order dissolved by the Hot Spring Chancery Court, but said motion was denied. That a further transcript of the entire proceedings had subsequent to the record contained in case No. 7085 is filed as a part of the petition.

That the roads designated to be improved are the principal roads of Hot Spring County, and the said acts directing their improvement' provide for the advancement and speedy hearing in all courts of any litigation involving said district; but, notwithstanding the facts alleged, the respondent has refused and failed to decide the issues joined one way or the other, and has been holding the case subject to the temporary restraining order issued by himself as chancellor, and has failed and refused to decide the same or to render a final judgment or decree therein.

Wherefore petitioners pray that an order of mandamus issue from this court directing the respondent to show cause why a final decree should not be entered forthwith in said original cause No. 1504 pending in the chancery court of Hot Spring County.

To this petition respondent filed an answer containing the following recitals: Denies that he has failed or refused to act upon any petition or complaint, but says the temporary restraining order issued by him was made subject to the further order and decree of the chancery court of Hot Spring County, and to await the final hearing and decree of a cause pending in the United States District 'Court. That the Missouri Pacific Railway filed a suit in the United States District Court at Little Rock attacking the validity of the district and the assessment of betterments made by the commissioners, and that the said district court issued an injunction holding that the assessments were void.

That thereafter another assessment was made, and the railway filed a suit in the Federal District 'Court attacking the validity of that assessment; but the said district court held that the railway company was not entitled to an injunction or restraining order, but granted an appeal to the Circuit Court of Appeals, and pending that appeal issued a restraining order against the commissioners of the improvement district, restraining them from attempting to collect any road taxes until the final determination of the appeal. That cause is now pending in the Court of Appeals at St. Louis, and the hearing thereof is set for January 9, 1923. That the complaint of the railway company in the suit pending in the Federal court alleges, among other things, that the acts creating the improvement district were unconstitutional and void, and that the assessments against the property of the railway were arbitrary and unreasonable.

For further answer respondent says that the temporary restraining order of the Hot 'Spring Chancery Court was not intended to be enforced any longer than was necessary to secure a determination of the questions raised in the litigation pending in the Federal court, and that there is no intention on the part of respondent, as judge of the Hot Spring Chancery Court, to delay the case for any time except until the case pending in the Federal court can be heard and disposed of.

In the brief filed on behalf of respondent it is pointed out that the purpose of the court is merely to hold the matter in abeyance until the validity of the assessments against the railway is determined, after which respondent will finally dispose of the case pending before him. It is also pointed out in the respondent’s brief that no one is enjoined from paying taxes, and any one may do so who wishes, and that the temporary restraining order issued by the chancery court only enjoins the improvement district from imposing a penalty for failure to pay and the institution of proceedings to enforce payment of assessments of benefits.

We think the chancery court has erroneously refused to exercise its jurisdiction, and that the chancellor should either make the restraining order permanent or should dissolve it, as to him seems proper. As appears from the recitals of the petition set out above, we have already held, in this case, that the order of the court granting an injunction in the case until a similar case pending in another court shall be determined is interlocutory and not final, and that an appeal will not, therefore, lie from such order. Road Imp. Dist. No. 1 v. Cooper, 150 Ark. 505. So the parties here are without remedy except by mandamus, if the court below has refused and does in .fact refuse to exercise its jurisdiction.

There is no question about the chancery court’s jurisdiction. The question is, whether the court below is refusing to exercise its jurisdiction.

We think the question stated must be answered in the affirmative. It is a mere play upon words to say that the court has decided all the questions presented, and that it has made no order which prevents the collection of taxes. The necessary effect of the temporary restraining order is to stay the proceedings. It is true, this order does not enjoin any one from paying taxes; but under its terms it would be a voluntary act if any one paid. If lands cannot be returned delinquent, and if penalties for delinquency cannot be'imposed, and if suits to enforce payment cannot be instituted (and such is the effect of the temporary restraining order), then taxes will not be paid, so long as payment is voluntary. In other words, the authority and effect of the law is suspended so long as its penalties may not be imposed.

We think the chancellor is in error in his conclusion to await the decision of the Court of Appeals before deciding the question before him. The question presented is not one of discretion. The chancellor has a case before him, and his jurisdiction in that case is complete and undisputed. The presumption should be indulged that the Court of Appeals will itself administer the law in the case now pending before it; and the pendency of that suit is not a sufficient reason for the chancellor to refuse to exercise his jurisdiction, and the refusal to decide the case pending before him until the Federal court has acted is a refusal to exercise jurisdiction.

In Merrill on Mandamus, § 204, it is said: “When a court for any cause improperly refuses to proceed in a cause, mandamus lies to compel action. So, if for any reason a court refuses to act or entertain the question for its decision, and such duty is enjoined on it by law, a mandamus can be obtained to compel the court to consider the question. In such cases the court is required to proceed, but it is not instructed to adopt any particular conclusion or judgment. The writ has been issued to compel a court to proceed in a cause * * * * when it hadrefused to try the cause * * * * till a cause pending in another court was determined.”

One of the cases cited in the notes to the test quoted is our own case of Brem v. Arkansas County Court, 9 Ark. 240. Another case cited is that of Budd v. New Jersey R. R. & Transportation Co., 14 N. J. L. 467, in which case Hornblower, C. J., for the Supreme Court of New Jersey, said: “And one court has no right to deny to a party the redress to which he is entitled in that court until another court chooses to proceed in a cause which may happen, incidentally, to affect the subject-matter in controversy. It is believed that no case can. be mentioned in which this court has ever ordered the proceedings in an action of debt on a bond to be stayed until a- suit pending in chancery on a mortgage collateral to the bond has been determined in that court. ’ ’

Another case cited is that of Avery v. Superior Court of Contra Costa County, 57 Cal. 247, the syllabus of which is as follows: “In an action for mesne profits, after a judgment in ejectment, an order was made staying proceedings pending an action in the United States Circuit Court, by the United States against the plaintiff, to annul the patent upon which his title rested. Held, that the judgment in ejectment established plaintiff’s title to the land as against defendant, and the right to recover the rents followed, as a legal consequence; and that, the order staying proceedings not being an injunction, no appeal lies from it, and therefore mandamus is the proper remedy.”

In the same volume of the California Reports, at page 427, a syllabus in the case of Dunphy v. Belden, Judge, etc., reads as follows: “A superior court has no power or discretion to refuse to try an action until judgment in another and separate action in another court of this State.”

In the case of Gilbert v. Shaver, 91 Ark. 231, Justice Battle, for this court, said: “It has often been held that ‘where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law’, and not as a decision of fact, that it has no jurisdiction, and declines to proceed in the exercise of its jurisdiction, the general rule is that a mandamus to proceed will lie from any higher court having supervisory jurisdiction, unless there is a specific and-adequate remedy by appeal or writ of error. In re Grossmayer, 177 U. S. 48; In re Connaway, 178 U. S. 421; Cahill v. Superior Court, 145 Cal. 42; De La Beckwith v. Superior Court, 146 Cal. 496; 26 Cyc. of Law and Procedure, 190, and a long list of cases cited.”

We think the chancellor below made the mistake of-law of deciding that he had the discretion to refrain from disposing of a case before him until another court had disposed of a case pending before it; and the result of this erroneous conclusion is a declination to proceed in the exercise of his jurisdiction. Mandamus will therefore lie to compel the exercise of the court’s jurisdiction.

See, also, Ex parte Trapnall, 6 Ark. 9; Dixon v. Field, 10 Ark. 243; McClellan v. Carland, 217 U. S. 268; Spelling on Injunctions and other' Extraordinary Remedies (2nd Ed.), § 1394.

It is therefore ordered that the clerk of this court issue a writ of mandamus, in accordance with the prayer of the petition.


text:
    Hill v. Wade.
    Opinion delivered November 6, 1922.
    1. Executors and administrators — order precluding absent heirs. —Though an order of the prohate court precluding from participation in an estate distributees who had been absent from the State and unheard from for more than five years was erroneous in not conforming to Crawford & Moses’ Dig., §§ 225-228, relating to unclaimed 'legacies and distributive shares, a distributee barred by such order may be barred by laches or limitation from thereafter claiming his distributive share.
    2. Executors and administrators — fraud in procuring order of distribution. — A complaint by an heir against an administrator to recover a portion of intestate’s estate held insufficient to allege that fraud was practiced on the probate court in procuring its order of distribution, where the court knew the facts and the complaint did not question the truth of the recitals of the record. ,
    3. Limitation op actions — conversion of distributee’s share.— An order of the probate court erroneously precluding an heir from participation in an estate is a conversion, and the statute of limitation of 5 years ran against the heir as soon as the distribution was made, and was not arrested by reason of his non-residence.
    4. Executors and administrators — laches—delay in claiming distributive share. — Where an heir failed to sue in chancery until more than 12 years after a probate order precluded him from his distributive share, he was guilty of laches though he was ignorant of his rights until three month's before suit was brought, his ignorance being due to- his own negligence and indifference to his family.
    5. Executors and administrators — presumption of death — recovery of property.' — -A suit by an heir, presumed dead from absence of more than 5 years, to recover money distributed by the administrator may be barred by limitation or laches, notwithstanding Crawford & Moses’ Dig., § 38, requiring restoration of an estate administered on presumption of death; the statute referring to restoration of land or specific personal property.
    Appeal from Independence Chancery Court; Ira J. Mack, Chancellor;
    affirmed.

      Samuel M. Casey, for appellant.
    The order of the probate court declaring plaintiff dead was void for the reason it fails to show he was a resident of this State at the time of his supposed death. 135 Ark. 112. It is also void because the court had no jurisdiction to make it. 40 Am. Rep. 12.
    Unless the court pursues the statute (secs. 225 to 228, C. & M. Digest) an order of this kind is void. 54 Ark. 70.
    The receipt of money by an administrator is no discharge of a debt. 154 U. S. 34.

      Jno. B. & J. J. McCaleb and Cole & Poindexter, for appellee.
    Appellant’s complaint shows that he lived in the State of Oklahoma. The statute of limitations applies to nonresidents. C. & M. Dig. § 6962.
    This was an action to set aside for fraud a final settlement of an administrator. The five year statute applies, C. & M. Dig., § 6960.
    The statute of limitations begins to run on the confirmation of an administrator’s account, and a complaint to set it aside for fraud cannot be heard eleven years afterwards. 42 Ark. 491.
    The statute begins to run against an act of fraud of an administrator from the time of his discharge. 46 Ark. 25, and thirteen years' thereafter is too long to wait to bring suit to set it aside. 48 Ark. 543.
    All suits must be brought within the period prescribed by the law of the State in which the action is instituted. 96 Ark. 446; 18 Ark. 384.
   Smith, J.

This appeal is from the decree of the chancery court of Independence County sustaining a demurrer to a complaint containing the following allegations. Plaintiff is a nephew of E. JULadd, who died intestate, about the year 1905, in Independence County. W. M. Wade was appointed administrator of the estate, and made final settlement thereof on May 4, 1908, which was approved and confirmed on November 4, 1908. The complaint was filed September 10, 1920, and plaintiff alleged he had only learned his uncle was dead a few months prior to that date, and that he did not know anything of the administration of the estate and has reeeived no part of the portion due him as an heir-at-law. That the next of kin of the intestate were his brothers and sisters and the children of deceased brothers and sisters, and that he was the only child of his mother, who was one of the sisters, and that his mother died •several .years 'before the death of the intestate, and that ¡plaintiff’s share was a one-ninth interest. It was further-alleged that “defendants Wade and Wheeler bought up the shares of all the heirs except himself and two others, and, although they knew, or could have known with reasonable investigation, that plaintiff was not dead, and although in the final settlement filed by the defendant Wade as administrator he expressly recoghized the right of plaintiff to a one-ninth interest in said estate, as well as Joe Ladd, whose whereabouts were then unknown, yet subsequently he and the defendant Wheeler secured an order of the probate court of Independence County authorizing him, as administrator, to pay out the amount of said estate belonging to the plaintiff and Joe Ladd to the other heirs-at-law, on the representation made to the court that the plaintiff and Joe Ladd had been absent from the State of Arkansas for five years without their whereabouts being known.” A copy of the order of the probate court was made an exhibit to the complaint. It was further alleged in the complaint that Wade paid to himself 6/42 and to the defendant Wheeler 33/42 of the estate and 3/42 to the other heirs, and that, pursuant to the order of the probate court, I. N. and J. F. Barrett, who were also made defendants, had executed a bond to the administrator for the said Wheeler, guaranteeing the return of the money paid him if the plaintiff or Joe Ladd should turn out to be alive and claim their interests.

It was also alleged in the complaint that the order of the probate court was void, as the court had no jurisdiction to make the order, and that the action of the defendants Wade and Wheeler in securing said order was a fraud on the rights of the plaintiff, and that as soon as plaintiff learned of the death of his uncle and the administration of Ms estate he returned to Independence County and made demand for his portion of the estate, which was refused.

The complaint alleged that “during the time of the administration of his estate he lived in the State of Oklahoma, near the Arkansas line, and that his whereabouts could have been easily determined by the defendants Wade and Wheeler, had they made any effort to do so.” Plaintiff alleged the value of his share to have been $400, and he prayed judgment therefor, with interest at six per cent, from November 4, 1908.

The order of the probate court, which was made an exhibit to the complaint, recites that the final settlement of the administrator which had been presented for approval showed the sum of $2,151.77 in his hands for division, but that the addresses of Joe Ladd and George Hill were unknown. Exceptions to this settlement were filed by Wheeler and Wade, upon the ground that neither Ladd nor Hill were entitled to participate in the disbursement of the funds of said estate, for the reason that both had absented themselves beyond the limits of the State for a period of more than five years and nothing had been heard from either within five years, and both were therefore presumed to be dead, under the statutes of the State. The order of the probate court recites that witnesses were examined and sworn on the hearing’ of the exceptions to the administrator’s settlement, and, “being fully advised in the premises, and it appearing to the court that the said Joe .Ladd and George Hill had absented themselves from the limits of the State of Arkansas for a period of more than twenty years, the court is of opinion that said exceptions to the final settlement and account current of the administrator should be sustained. ’ ’

The probate court ordered and adjudged that Ladd and Hill were precluded and estopped from participating in the division and disbursement of the funds of the estate,, and that they “were not to have any portion of said funds deposited with the clerk of this court for their use and benefit or subject to their order,” and the administrator was directed to amend his final settlement by dividing the funds of said estate into seven equal parts, instead of nine, as he had done, and, as thus amended, the report was ordered to lie over until the following term of the court, when it was approved.

Appellant insists that the order of the probate court which, as has been said, was made an exhibit to his complaint, was void for the reason that it does not conform to §§ 225-228, C. & M. Digest; and that he is not guilty of laches because he brought his suit within three months after being apprised of his rights; and that he is not barred by the statute of limitations because of the provisions of § 38, C. & M. Digest.

It is conceded that the order of the probate court did not conform to the requirements of §§ 225-228, C. & M. Digest, and was therefore void, but it does not follow that the cause of action is not barred by laches and limitation. We think it is barred by 'both laches and limitation.

The complaint contains no allegations sufficient to support the charge that the order of the probate court was obtained through fraud practiced upon the court in its procurement. The order itself recites the facts upon which the court made its finding; and, while the facts recited did not authorize the order made, there was no fraud practiced upon the court. The court was in full possession of the facts; indeed, the truth of the recitals contained in the order of the probate court is not questioned 'by the allegations of the complaint.

We have therefore an erroneous order of the probate court. The division of the estafe into seven shares instead of nine, was a conversion of plaintiff’s interest in the estate, and his cause of action for the wrongful conversion was full and complete as soon as the distribution in accordance with that order was made. Plaintiff thereafter waited something more than twelve years before bringing this suit, and although he was, during all this time, a resident of the State of Oklahoma, the miming of the statute of limitations was not arrested on that account. Secs. 6962 and 6960, C. & M. Digest. That plaintiff’s cause of action was barred by limitation, see Hanf v. Whittington, 42 Ark 491; McGaughey v. Brown, 46 Ark. 25; Hankins v. Layne, 48 Ark. 544; Rock Island Plow Co. v. Masterson, 96 Ark. 446.

We think the cause of action was also barred by laches. Plaintiff says he did not know of his rights until three months before the institution of this suit. But his ignorance was due to his own negligence and indifference to his family. His mother died before his uncle from whom he seeks to inherit. He was his mother’s only child, and knew he would inherit any interest which she herself would have taken.

What was said by the Supreme Court of the United States in case of Broderick’s Will, 21 Wall. 503, is applicable here. The facts there were that United States Senator Broderick of California died in 1859 and left a very valuable estate. A will purporting to have been executed by him was probated, and his estate was distributed pursuant to its terms. Ten years later a bill was filed by his heirs alleging that will was a forgery, but the court held the heirs were barred by laches. The heirs sought to excuse their delay in instituting the suit by showing that they were residents of an isolated community in Wales, and had lost track of their relative, who had come to America and amassed a fortune, and that they had brought suit as soon as they were advised of the accrual of their cause of action. Mr. Justice Bradley, for the court, said: “They do not pretend that the facts of the fraud were shrouded in concealment, but their plea is that they lived in a remote and secluded region, far from meaps of information, and never heard of Broderick’s death, or of the sale of his property, or of any events connected with the settlement of his estate, until many years after these events had transpired. Parties cannot thus, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject. This is the foundation of all judicial proceedings in rem.”

Here it was not the deceased who went away to parts unknown, but the heir himself, and although he was in an adjoining State, with many means of communication with his family open to him, he did not communicate with any of them. He had been absent and unheard-of for twenty years when the probate court made its order, and it was twelve years thereafter before he brought this suit. His claim has become stale, and equity will not aid in its enforcement. Williams v. Bennett, 75 Ark. 312; Rhodes v. Cissel, 82 Ark. 367; Ater v. Smith, 19 Ann. Cas. 105; Auten v. St. L. I. M. & S. R. Co., 110 Ark. 24; Board of Levee Inspectors Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467; Rudland v. Mastic, 77 Fed. 688; sec. 244, article Equity, 21 C. J., p. 247; sec. 153, article Equity, 10 R. C. L., p. 406.

There is nothing in § 38, 'C. & M. Digest, which militates against what we have said. This section and what is now § 4111, C. & M. Digest, together, comprise chap. 46 of the Revised Statutes, the title of which chapter is “Death Presumed.” Sec. 1 of this chaptel, which is § 4111, C. & M. Digest provides that a presumption of death shall arise against any person absenting himself beyond the limits of the State for five years successively, unless proof is made that he is alive within that time. Sec. 2 of that chapter, which is § 38, C. & M. Digest, reads as follows:

“An estate recovered in any ease in which the death of the person having the right thereto shall have been presumed, shall be restored to such person on making his personal appearance, or on making satisfactory proof of his being in full life, and he may recover the rents and profits of the estate during the time he may have been deprived thereof, with interest.”

It will be observed that the complaint does not allege that the defendants, or any of them, have possession of nny specific property; in fact, the action is not brought to recover specific property but a sum of money, and for this reason we think § 38, set' out above, does hot arrest the running of the statute of limitations against this cause of action or prevent the interposition of the plea of laches.

This § 38 appears to comprehend real estate, rather than property generally, as the word “estate,” and not the word “property,” is employed. The provision that “rents and profits of the estate” may be recovered lends strength to this view. But, whether the statute should be thus limited or not, we think it clear that it relates to the recovery of specific property which the occupant in possession recovered in a case in which the death of the person entitled thereto was presumed, under section 4111, C. & M. Digest, and was not intended to prevent the running of the statute of limitations or the plea of laches against actions for the recovery of money in cases where such defenses would be otherwise available. Beam v. Copeland, 54 Ark. 70.

It appears, from the face of the complaint itself, that the cause of action sued on is barred both by laches and limitation, and the demurrer was properly sustained. Cunningham v. Dellmon, 151 Ark. 409.

Decree affirmed.


author: Smith,, J.

text:
    Dyer v. State.
    Opinion delivered November 6, 1922.
    1. Embezzlement — indictment—surplusage.—The use of the word “bailee” in connection with the words “clerk, servant, employee, (and) agent” in an indictment, under Crawford & Moses’ Dig.. § 2500, of an express agent for embezzlement of a check, was unnecessary, and did not operate to charge embezzlement by a bailee, under § 2502, Id.

    2. Embezzlement — evidence.—In the prosecution of an .express agent for embezzling a check, evidence held to sustain conviction.

      Appeal from 'Craighead Circuit Court, Lake City District; B. E. L. Johnson, Judge;
    affirmed.

      Fuhr & Futrell, for appellant.

      J. S. Utley, Attorney General, Elbert Goclivin and W. T. Hammock, Assistants, for appellee.
   Smith,, J.

Appellant was convicted at his trial in the circuit court upon the following indictment:

“The grand jury of the Lake City District of Craig-head County, in the name and by authority of the State of Arkansas, accuse Henry Penn Dyer of the crime of embezzlement, committed as follows, viz: In the district and county aforesáid on the 29th day of September, 1921, the said Henry Penn Dyer, then and there'being above the age of sixteen years, and then and there being the clerk, servant, employee, agent and bailee of th American Railway Express Company, a corporation, and then and there as such clerk, servant, employee and bailee and by virtue of his employment as such, having delivered and intrusted to his possession, care and custody, a check drawn on the Bank of Black Oak, Black Oak, Arkansas, for the sum of forty-two dollars and fifteen cents, of date September 29, 1921, made payable to American Express Company, and drawn by the Merritt Mercantile Company, by T. M. Merritt, and numbered 3871, of the value of $42.15, the property of the said American Railway Express Company, did then and there unlawfully, fraudulently and feloniously embezzle and convert to his own use said check, without the consent of said owner, bailor and employer, against the peace and dignity of the State of Arkansas.”

For the reversal of the judgment it is insisted that the court erred in overruling a demurrer to the indictment, and in refusing to direct a verdict for the defendant, and that there is a variance between proof and the allegations of the indictment.

The indictment in this case was based upon section 2500, C. & M. Digest, but appellant insists that the indictment is bad because it also charges the offense defined in section 2502, 0. & M. Digest. Appellant was described in the indictment as “being a clerk, servant, employee, agent and bailee,” and the insistence that the offense charged is the one defined in section 2502 is grounded upon the fact that appellant was charged with being a bailee, a class of persons made liable only by section 2502, -C. & M. Digest.

The use of the word bailee was unnecessary to charge the offense defined by section 2500, C. & M. Digest; but we think its use does not operate to charge the offenses defined under that section and also section 2502. The indictment charged appellant was a clerk, servant, employee and agent' of the American Bailway Express Company; and, as such, he was a bailee, and the additional designation of bailee adde'd nothing to the charge. Wright v. State, ante, p. 169.

Appellant was the agent of the American Bailway Express Company at Black.Oak, Arkansas, a small station on the J., L. C. & E. Bailroad, and, as such agent, received a O. O. D. package consigned by the Murray Gin Company, Memphis, Tenn., to the Merritt Mercantile Company, of Black Oak. The -charges .against the package amounted to $42.15. Appellant delivered the package to the consignee, as was his duty to do, and received a check from the consignee for $42.15, which was made payable to the American Express Company. He indorsed the check as follows: “H. P. Dyer, Agent, J., L. C. & E. B. B. Co.,” and cashed it at the Bank of Black Oak, the bank on which it was drawn.

It is insisted that the testimony shows the embezzlement of money, and that there is a variance, inasmuch as the indictment charges the embezzlement of a check. The jury might have so found; but this is not the only, inference deducible from the testimony. It appears from the testimony on the part of the ¡State that the American Bailway Express Company carried express freight, but the American Express Company did not carry freight, and that it was the business of this last-named company to transmit money by express money orders, and otherwise, and that it was appellant’s duty, as agent of those companies, when he received checks in payment of express sent C. O. D., as he did in the instant cáse, to cash the checks and immediately remit the money to the express messenger on the train, and immediately thereafter draw a money order on the American Express Company for the sum collected, less the express charges, and send the same to the consignor. The check cashed and alleged to have been embezzled was the property of the American Railway Express Company, as charged in the indictment, although it was payable to the American Express Company, and it was appellant’s duty to have collected it for the benefit and account of the American Railway Express Company.

We think the testimony warranted a finding by the jury that the check was embezzled as charged in the indictment. The manner in which it was indorsed is itself sufficient evidence of that fact to support the jury’s finding. As has been said, this indorsement was “H. P. Dyer, Agent, J., L. C. & E. R. R. Co.,” a fact from which the jury could have found that appellant had converted the check to his own use as the agent of the J., L. C. & E. R. R. Co. at the time it was cashed.

No error appearing, the judgment is affirmed.


author: Humphreys, .J.

text:
    Cheek v. State.
    Opinion delivered November 6, 1922.
    1. Homicide — invited error. — Where defendant requested an instruction submitting the issue as to whether the State’s principal witness was an accomplice, he cannot, on appeal, insist that the court erred in failing to instruct that the witness was an accomplice according to his own admissions.
    2. Criminal law — corroboration of accomplice. — -Evidence corroborating an accomplice is sufficient if independently connecting defendant with the crime, though not sufficient of itself to support a conviction.

      3. Criminal law — sufficiency of corroboration of accomplice. —In a prosecution for murder, evidence of discovery of a gun and shells, the position of the body, the location of the wound, the circumstance of.meeting two men in the road shortly after the killing, and a certain insurance transaction held to corroborate the testimony of the accomplice.
    4. Criminal law — exclusion of. incompetent evidence. — Defendant cannot complain that incompetent evidence offered by him was excluded by the court on its own motion, though the prosecuting attorney offered no objection to it.
    Appeal from Pope Circuit Court; A. B. Pricldy, Judge;
    affirmed.

      Hays, Ward (& Hays, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, .J.

Appellant was indicted in the Pope Circuit Court for murder in the first degree hy shooting and killing Hiram Golden with a shotgun, in said county, on the 8th day of December, 1921. He was tried upon said charge at the April term, 1922, of said court and found 'guilty of murder in the second degree. His punishment was fixed at imprisonment in the State Penitentiary for a period of ten years.

Prom the judgment of conviction this appeal has been duly prosecuted to this court. ■

The body of Hiram Golden was found by Richard Paucette on the’morning of the 9th of December, 1921, near the roadside, about a mile south of Atkins. It was lying partly in the branch, with the face downward. The shotgun wound was in the back of the head. .A 12-gauge shell “Peters Referee” was found by J. P. Spear in the road, twelve or fifteen feet from where the body was lying. Several days after the body was discovered, Dallas and Dual Reel and Eliott Howard reported that on their way to town they had observed a gun lying in the field near the scene of the tragedy. J. P. Spear went down there and found a twelve-gauge single-barrel shotgun, which had apparently been thrown over in Lafayette Younger’s field and was lying about fifty yards from where the body was found. The top side of the gun was rusty on account of exposure to the weather. On the examining trial of appellant it was admitted the gun belonged to him. Three other f<Peters Beferee” shells were found by the officers near the road, between the place where deceased was killed and Atkins. On the night deceased was killed, Oscar McLaren saw two men, between eight and eight-thirty o’clock, going toward Atkins, at the foot of the hill near the place where the Morrilton road turns off. The deceased had been in business with appellant and was indebted to him more than the sum of $1,000. In order to protect appellant, he carried a policy in his favor for $1,000. A short time before deceased was killed he made an application for a $10,000 policy in which appellant was the beneficiary. The State introduced testimony tending 'to show that appellant knew of this fact and inquired, over the ’phone, of the brother of the insurance agent, a few days before the murder, whether the policy had been received, who informed appellant that he thought it had, but would have the agent call him when he came in. The agent did not call appellant. The policy was never issued nor delivered, and was not effective until delivered.

Alta Curtis was the principal witness -for the State. He lived on appellant’s place near Atkins and looked after his stock. He was an accessory after the fact, and was therefore an accomplice, having admitted that he attempted to shield appellant by making false and misleading statements to the officers and others investigating the murder, and by swearing falsely in the examining trial. He testified in the examining trial, in substance, that Hiram G-olden borrowed appellant’s single-barrel shotgun and some shells, and left appellant’s home on the afternoon of December 8th; that witness, Holden, appellant, and himself had been drinking; that witness remained with appellant and spent the night in his home; that he and appellant occupied the same room; that appellant did not leave the house during the night. He testified-'-in the trial of this cause, in substance, to the effect that Hiram Golden came to the house of appellant during the afternoon of December 8, 1921, about two o’clock; that when he knocked at the door appellant asked him to come in; that Golden said he did not have time; that he came to tell him he thought the insurance papers had 'dome; that appellant went out on the porch and talked to him awhile; that afterwards Golden came in and the three of them began drinking; that Golden and appellant became intoxicated and went to bed; that later they got up and drank some more; that Golden remained until after supper, at the request of appellant, for the purpose of going down below town to get some more whiskey; that after supper the.three of them left together to get the whiskey; that appellant took his single-barrel shotgun and some “Peters Referee” shells with him; that they went about a mile south of town to the place where Golden was killed; that they stopped about fifty yards before they reached the place, and sat down to rest; that while sitting there Golden took the hiccoughs; that witness told him if he would get a drink of water it would stop it; that they went to the branch near the roadside to get a drink, and while Golden was stooping over to drink, appellant shot him; that witness turned and ran back toward town, and when he had gone about seventy-five yards, appellant overtook him; that appellant had disposed of his gun; that they walked up the road about three hundred yards toward town, at which point appellant took a handful of shells out of his pocket and pitched them over on the right-hand side of the road; that afterwards they walked on towards Atkins and met a man near the point where the Morrilton road turned off; that they returned to appellant’s house in Atkins and went to bed in the west room, occupying separate beds; that after they had retired, appellant got in bed with witness and asked him to say nothing about the killing and he would give him $500; that appellant rolled and tumbled all night, and remained in bed most of the time next day; that next morning some one ’phoned to the house that Golden had been killed; that witness remained at appellant’s home and in town until Saturday afternoon, when he returned to his own home; that he did not see appellant any moré during the next week; that appellant came to see him, and told him what to. swear at the examining trial.

The court submitted the issue of whether or not' Alta Curtis was an accomplice under the following instruction: “Our statute defines an accessory after the fact as follows: An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. And the court charges you that an accessory after the fact is an accomplice within the provisions of the statute which provide that ‘a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending* to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.’ So, if you find from the evidence in this case that the witness, Alta Curtis, is an accomplice under the above instructions, then you could not find the defendant, Joe Cheek, guilty upon his testimony, unless you should find that the said Alta Curtis is corroborated by other evidence tending to connect Joe Cheek with the killing, and such corroboration is not sufficient if it merely shows that Hiram Golden was killed and the circumstances thereof. ’ ’

Appellant insists upon a reversal of the judgment because the court submitted that issue to the jury instead of instructing them that Alta Curtis was an accessory after the fact, according to his own admissions, and therefore an accomplice. Appellant requested two instructions, in substance, to the same effect as the instruction given by the court which is set out above. Both requests were refused because fully covered by the court’s instruction. Both requests, left it to the jury to say, from the evidence, whether Curtis was an accomplice. Appellant did not ask the court in either instruction, or in any other, to declare that Curtis was an accomplice under the undisputed facts in the case. Having asked the submission of this issue to the jury, appellant is not in a position to complain of the court’s action in submitting such issue upon his own motion.

Appellant’s next contention for reversal is that there was not sufficient testimony, independent of the testimony of the accomplice, to connect the defendant with the commission of the offense. Corroborating evidence to that of an accomplice is sufficient if independent and tending to connect the defendant with the commission of the crime. The law does not require it to be sufficiently strong within itself to support a conviction. In the instant case the record reflects that appellant’s shotgun Avas found near the scene of the tragedy. A shell of the size and make used by appellant for his gun was found in the road a short distance from where the body Avas found. Three other shells were found by the officers at the place Avhere the accomplice said appellant threw them. Oscar McLaren testified that he met two men going toA\rard Atkins at the place in the road where the accomplice said he and appellant met a man Avhen returning to town after appellant shot the deceased. As tending to establish a motive for the killing, the State introduced independent evidence tending to show that appellant was the beneficiary in the insurance policy carried by the deceased and in another for which deceased had applied. "We think the discovery of the gun and shells, the position of the body and the location of the wound, as well as the circumstance of meeting the two men in the road shortly after the killing, and the insurance transactions, were testimony independent of that of the accomplice, tending to connect appellant with the crime.

Appellant’s last contention for reversal is that the court erred in excluding, on its own motion, the testimony of appellant’s wife tending to establish an alibi for him. The testimony was clearly incompetent. A defendant cannot complain when incompetent evidence offered by him is excluded, even though the prosecuting attorney made no objection thereto.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    National Benevolent Society v. Barker.
    Opinion delivered November 6, 1922.
    1. Trial — request by both parties for instructed verdict.— Where, at the conclusion of evidence, both parties requested an instructed verdict, and asked no other instructions, the effect was to waive the right to a jury trial, and it was too late, after the court decided the issues of fact, to request a submission of the same issues to a jury.
    2. Insurance — acute and chronic diseases. — An “acute” disease is one “attended with symptoms of some degree of severity and coming speedily to a crisis; opposed to chronic”; a “chronic” disease is one “continuing for a long time, lingering, habitual”; and where a membership certificate and -the by-laws of a benefit society exempted it from liability for more than 10 per cent, of the policy if insured died of a chronic disease, an acute case of pellagra would not come within the liability exemption clause.
    3. Witnesses — privileged testimony. — Where the general physician of a benefit society attended an insured in her last illness, testimony of such physician as to the cause of her death was privileged within Crawford & Moses’ Dig., § 4149, and could not be introduced without the consent of insured’s representative.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.

      Roy D. Gmnpbell, for appellant.
    The rights of parties to recover upon a policy of life insurance must be determined by the terms of the policy itself. 101 Ark. 353; 122 Ark. 222; 143 Ark. 364.

      C. F. Greenlee, for appellee.
   Humphreys, J.

Appellee instituted suit in the Monroe Circuit Court against appellant to recover $250 upon a certificate of membership issued by appellant to her daughter, Annie M. Barker, on November 7, 1918, insuring her life against death on account of certain kinds of sickness.' It was alleged that the certificate provided for the payment of that sum to her father, but, if dead, then to her mother, if the insured paid her dues and should die six years after the date of the policy. It was also alleged that the insured paid her dues regularly until her death, and that she died on September 8, 1920, subsequent to the death of her father.

Appellee filed an answer, admitting the issuance of a certificate of membership in its society, and the payment of dues thereon, but alleging that, under the provisions of the certificate and by-laws of the society, it was exempt from liability if the insured died of malaria, and liable for only ten per cent, of the face value of the certificate if she died of a chronic disease; that she died from the effects of either malaria or pellagra, and that pellagra was a chronic disease.

The cause proceeded to a hearing upon the pleadings and testimony, at the conclusion of which each party asked for a peremptory instruction. The court thereupon directed a verdict for appellee in the sum of $250. After the court decided the case on the merits, appellant requested other instructions, which were refused. In our view of the case it is unnecessary to set them out or state them in substance. An appeal has been duly prosecuted to this court from the verdict and judgment rendered pursuant thereto.

There was a clause in the membership certificate and by-laws of the society exempting appellant from liability for the death of the insured on account of malaria or chronic disease. The evidence was in conflict as to whether the insured died of malaria or pellagra.

Appellant testified that her daughter died from the effects of pellagra; that Dr.. Thornton, who attended her, said she had pellagra; that she had been well all her life until she became ill in July, 1920, before her death in September following.

Dr. Glephart testified that he was called as a physician to see the insured in September, 1920, and found her suffering from symptoms of pellagra.

Dr. Thornton, the regular attending physician of the insured in her last illness, on direct examination, testified that she died from the effects of malaria; that pellagra was a chronic disease; on cross-examination, however, he testified, “About two months previous to her death she developed all of the signs of an acute case of pellagra, but in about a month and a half these acute signs receded and she resumed her usual duties.”

Under the doctrine announced in the case of St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, and many later cases cited in the case of Weber v. Rodgers, 128 Ark. 25, and a very recent case of J. T. Fargason Co. v. Bank of Lepanto, ante, p. 361, the request made by appellant and appellee for a verdict in his favor, without requesting any other instructions before the court decided the case on its merits, was tantamount to an agreement on their part for the court to decide the issues of fact involved in the case. After the court granted their request and determined the issues of fact in favor of appellee, it was too late for appellant to request other instructions submitting the same issues to the jury. The effect of the original requests of the parties was to waive the right to have the issues of fact determined by the jury. This court must give the same effect to the direction of the trial court as is given to the verdict of a jury. The verdict of a jury will not be set aside on appeal if there is any substantial evidence to support it. There was evidence tending to show that the insured died from the effects of an acute case of pellagra. An acute disease, according to Webster, is one “attended with symptoms of some degree of severity and coming speedily to a crisis — opposed to chronic. ” And a chronic disease is one “continuing for a long time; lingering; habitual. ” Under this definition, an acate case of pellagara would not come within the liability exemption clause in the policy and by-laws of appellant.

In the course of 'the trial the court permitted appellee to show the cause of the insured’s death by her attending’ physician, Dr. Gephart, but refused to permit appellant to prove the cause of her cleath by Dr. Thornton, who was the insured’s general attending physician in her last illness. The evidence of Dr. Thornton was excluded because the information elicited was information acquired by him while attending the insured in a professional character. Such information is a matter of privilege under sec. 4149 of Crawford & Moses’ Digest, and cannot be introduced in evidence without the consent of the patient or the patient’s representative. It is argued by appellant that appellee waived the right to object to the testimony of Dr. Thornton relative to the condition of the insured because she herself introduced the testimony of Dr. Gephart concerning the insured’s condition. This court has decided otherwise. Mo. & N. A. Ry. Co. v. Daniels, 98 Ark. 352; K. C. S. R. Co. v. Miller, 117 Ark. 396.

No error appearing, the judgment is affirmed.


text:
    Corpier v. Thompson.
    Opinion delivered November 6, 1922.
    1. Schools and school districts — change op boundaries — validity op LEGISLATION. — Statutes creating and changing the boundaries of school districts are not invalidated by a failure to adjust equities between the several districts affected, nor on account of hardships and injustice entailed upon persons or communities within the districts.
    2. Schools and school districts — change of boundaries. — Special Acts 1921, No. 598, detfcching territory from a school district and annexing it to certain adjacent districts, is not void in depriving persons residing in such territory of rights given by them under the general laws of the State or in depriving school children of such territory of adequate school opportunities.

      3. Schools and school districts — change op boundaries. — Special Acts 1921, No. 598, detaching territory from one district and annexing it to other adjacent districts, was not void in leaving isolated and uncontiguous territory.
    4. Statutes — validity.—Special Acts 1921, No. 598, detaching territory from two sides of a school district and attaching it to two separate school districts, is not void on the ground that it contains independent and unrelated matters.
    5. Deeds — reversion and option distinguished. — A provision in a deed conveying land to a school district that, when no longer used for school purposes, the grantor, “or any one else owning the land at that time, is to have the land at the specified price of $60,” held not a reversionary clause, hut an optionary clause, entitling the grantor merely to repurchase the land for the sum named on the contingency mentioned.
    Appeal from Lonoke Chancery Court; J. E. Martineau, Chancellor;
    affirmed.

      Chas. A. Walls, for appellant.
    To the argument that the act in question does not provide for the distribution of the surplus funds, or for the assumption of the proportionate part of the indebtedness, because it is not specifically provided for in said act, it is sufficient to say that the general law of the State covers this subject. Crawford & Moses’ Digest, §§ 8825, 8826; 61 Ark. 521; 63 Ark. 433; 60 Ark. 124.
    The statutes above cited, under the provisions of § 8842, C. & M. Digest, apply to rural special school districts also, where not inconsistent with the terms of the special acts.

      J. H. Carmichael and Williams & Holloway, for appellee.
    1. Crawford & Moses’ Digest, §§ 8825 and 8826, are not applicable to the facts in this case. They apply to the formation of netv school districts, and not to detaching lands from one district and annexing same to another. Cases cited by appellant are against his contention. The Legislature might have been able to pro rate funds, but it did not do so. 102 Ark. 261; 143 S. W. 895.

      If there had been any funds to pro rate, and there were none, that should have been done by the county board of education, and the chancery court could have no jurisdiction of the matter unless that board had first acted upon it, and then it could have been brought into chancery only by certiorari. .
    2. There was no condition subsequent in 'Corpier’s deed. Moreover, the burden was on him to prove it. 149 Art. 207.
    3. The court erred in holding act 598 of 1921 as valid.
    (1) It is a manifest attempt to thwart the will of the people residing upon the territory affected and to deprive them of rights given them by the general laws.
    (2) The act contains independent and unrelated matters.
    (3) It deprives the children of this territory of adequate school opportunities and facilities, thereby defeating the very purpose of the law.
    (4) It does not annex contiguous territory, but leaves isolated and uncontiguous territory on both sides. 60 Ark. 124; 29 S. W. 144; 105 Ark. 147; Í50 -S. W. 152.

      Chas. A. Walls, for appellant, in reply.
    1. Rural Special School District No. 20 is a new school district, and the statutes cited in the main brief apply; but, treating the act 598 as merely changing the boundaries, there is ample authority in § 8871, C. & M. Digest, to warrant the action asked for by appellant.
    2. While the complaint alleged generally that the act was invalid, appellees did not offer any evidence whatever on any oyf the points which they raise here in the cross-appeal. The findings of the chancellor will be sustained, on the presumption that they were correct.
   Humphreys, J.

The issues involved in this appeal and cross-appeal are, first, whether the trial court erred in upholding the validity of act No.. 598 of the Acts of the Legislature of 1921; 2nd, in refusing to probate the funds of Common School District No. 62: 3rd, -in refusing to permit proof to be made of the value of Mason schoolhonse, fixtures, and furniture therein, removed by Rural School District No. 20; 4th, in quieting the title in J. B. Thomason to four acres on which the Mason schoolhouse was built in old Common School District No. 62.

A criminal prosecution, growing out of an attempt to tear down and remove Mason schoolhonse, found its way to this court. The case is reported in 151 Ark., 370, under the style of Thompson v. State. The record in that case will disclose many of the facts in the instant case.

(1) Appellees, who cross-appealed, assailed the validity of act 598, Acts 1921, upon four grounds, as follows:

(a) This local act attempts to thwart the will of the people residing upon this territory and deprive them of rights given to them by the general laws of the State.

(b) The act contains independent and unrelated matters.

(c) This alleged act would deprive the children of this territory of adequate school, opportunities and facilities, and thus defeat the very purpose of the law.

(d) This alleged act does not annex contiguous territory, but leaves isolated and uncontiguous territory on both sides.

Under the general law, Common School Districts 10, 62 and 68 organized themselves by vote into Rural Special School District No. 20. In a very short time thereafter the Legislature enacted act No. 598, Acts 1921, taking a strip a mile in width and two and one-half miles in length off of the east side of Rural Special District No. 20 and adding it to Oakdale Special School District; and a strip off of the west side thereof and adding it to Oak Grove Special School District No. 17.

This court has recognized the unrestricted and plenary power of the Legislature to create and change the boundaries of school districts in this State, if in doing so the contracts or obligations of the districts affected are not impaired. Such legislation is not void by a failure to adjust equities between the several districts affected, nor on account of hardships and injustice entailed upon persons or communities within the districts. Special School Dist. No. 2 v. School District of Texarkana, 111 Ark. 379; Eubanks v. Futrell, 112 Ark. 437; Hughes v. Robuck, 119 Ark. 592; School Dist. No. 25 v. Parker, 123 Ark. 317. Under the rules announced in the several cases cited, the attacks by appellees on said act 598, designated by the letters a, c, and d, are unfounded. We also think the attack on said act designated by the letter (b) is unfounded. The several districts are in the same part of the county and so related that the different parts of the middle district might be detached and annexed to each of the other districts. We see no good reason, why this result might not have been accomplished in one act instead of two.

(2) We do not think the court erred in refusing to apportion funds of Common School District No. 62 which were not on hand at the time said district was merged in and became a part of Rural Special School District No. 20. As we understand the evidence, District No. 62 had only $67.77 on hand, and that, after the merger, Rural Special School District No. 20 paid the sum of $306.15 to teachers which School District No. 62 owed at the time. At the time of the merger there was no fund or property to prorate.

(3) We do not think the court erred in refusing to permit appellants to prove the value of the Mason schoolhouse or of the fixtures and furniture therein. It was ruled in the case of Thompson v. State, supra, that said schoolhouse, fixtures, and furntiure belonged to Rural Special School District No. 20, when the directors removed the fixtures, furniture, and a part of' the building from the four-acre tract upon which the building stood; that the directors had the right to change the schoolhouse site, fixtures, and furniture.

(4) We do not think the court erred in quieting the title in J. B. Thomason to the four acres of land constituting the site of the Mason schoolhonse. The record reflects that J. B. Thomason purchased the said tract of land from Rural School District No. 20 before act No. 598, Acts 1921, went into effect. The contention of appellant, W. J. Corpier, is that said tract of land reverted to him when Rural Special School District No. 20 abandoned the site for school purposes. The record reflects that W. J. Corpier conveyed the property to Common School District No. 62, which district was subsequently absorbed by Rural Special School District No. 20. The deed was lost, but the proof showed that it contained the following provisions: “But when ceased to be used for school purposes, that I (W. J. Corpier) or any one else owning the land at that time, is to have the land at the specific price of $60.” The above is not a reverting clause. It is an optionary clause on the part of the grant- or in the deed, to repurchase the land, upon a contingency therein expressed, for the sum of $60. The deed passed a fee title absolute to Common School District No. 62, and its successor, Rural Special School District No. 20, sold the land to appellee, J. B. Thomason, before appellant, W. J. Corpier, attempted to exercise the option.

No error appearing, the decree is affirmed.