text:
    Barksdale v. Barksdale.
    Opinion delivered February 1, 1926.
    1. Judgment—decree without notice fraudulent.—Where the defendant in a suit for divorce was sued as a nonresident when in fact he was a resident of the county, and he was never served with process, and had no notice of the suit, the procurement by plaintiff of a decree by default upon' constructive service was a legal fraud practiced upon the court.
    2. Judgment—fraud in procurement.—Where, in a suit for divorce, plaintiff’s counsel withheld the complaint and other papers in the suit, and, though notified by defendant’s counsel that he desired to answer the complaint, he afforded defendant no opportunity to do so and took decree by default, his conduct was tantamount to a legal fraud upon the court, and the decree will be set aside, upon a showing of a meritorious defense.
    Appeal from. Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.

      Zeb A. Stewart and T. P. Oliver, for appellant.
   Wood, J.

An action was instituted by Beulah E. Barksdale on October 10, 1923, in the Union Chancery Court, Second Division, against Hugh T. Barksdale. She alleged cruel and inhuman treatment, and such indignities to her person by the appellant as to render her condition in life intolerable. The complaint was filed October 10, 1923. Among the papers, but not filed, was an affidavit of the appellee in which she stated that the appellant was a nonresident of the State, and asked that a warning order be issued. The record shows that a warning order was issued on October 15, 1923, and on that day John Carroll was appointed attorney ad litem for the appellant. There appears also in the record proof of publication of the warning order by Lewis C. Callow, the business manager of the Countrymen’s News and El Dorado Times, a weekly newspaper published at El Dorado, Arkansas, showing that the warning order had been published for four consecutive weeks in that paper. This proof of publication appeared among the papers in the cause, but was not marked filed. There also appears in the transcript a notice to H, T, Barks-dale to take depositions at the office of E. F. Gathright, a notary public of Union County, the depositions to be taken at Strong, Arkansas, on the 29th of October, 1923. This notice was filed October 10, 1923. There is no return of service on this notice, either on the appellant or on the attorney ad litem. There also appears in the transcript what is designated as the deposition of Beulah E. Barksdale in the form of an affidavit. It does not show when and where it was made and does not bear any filing mark.

There is also the purported affidavit of M. O. Brooks, styled a deposition in the cause, but it likewise does not show that it was filed, when or where it was taken. Likewise the purported deposition of Mrs. J. W. Honeycutt in the form of an affidavit, but it does not state when and where it was taken. There appears in the transcript, however, the certificate of E. F. Gathright, a notary public, dated May 7, 1924, stating that the foregoing depositions of Beulah Barksdale, M. O. Brooks, and Mrs. Honeycutt were taken before him at the time and place mentioned in the caption. The place mentioned in the caption was Gathright’s office, and the time for the deposition to be taken was October 29, 1923. The certificate recited that plaintiff alone and her attorney were present at the time of the taking of the deposition.

On May 15, 1924, the chancery court of Union County, Arkansas, entered a decree reciting that the cause was heard “upon the complaint of the plaintiff, the depositions of the witnesses 0n behalf of the plaintiff regularly taken in this cause after notice of taking of same having been duly given, together with service by publication of warning order for four consecutive weeks, in the 'Countrymen’s News and El Dorado Times, a weekly newspaper published in El Dorado, Union County, Arkansas,” and reciting that the plaintiff appeared by her attorney, C. A.. Love, and that the defendant came not, but wholly made default, and the decree further recites that the defendant had due and legal notice of. the pendency of the action, and that “the court finds that all the material allegations of the complaint are true, and that the plaintiff is, and should be, and is entitled to an absolute divorce from the defendant.” The court then entered a decree to that effect.

The record shows that on the 16th of May, 1924, the appellant filed what he designates his “motion, answer and cross-complaint,” in which he alleged that he had never been served with summons in the action; that no notice had been given him by publication as required by law; that he was and had been at all times since the institution of the action a citizen and resident of Union County, Arkansas; that he had not been absent from said county since the filing of the complaint; that the appellee at all times knew that the appellant was a resident of the State; that he was informed by his counsel that none of the papers in the cause were filed in the office of the clerk of the court; that he was also advised by his counsel that a decree was entered the day before, May 15,1924, granting to the plaintiff an absolute divorce; that his counsel had applied to the clerk for the papers in the cause and had been advised that the papers w<|p not on file; that his counsel, before the decree was entered, requested counsel for plaintiff to take no action in the cause until the 16th, when they could confer with the defendant, but, notwithstanding this fact, the cause was submitted on May 15, 1924, and a decree, order and minutes and memorandum thereof made on the court’s docket, but that no decree had ever been entered of record on the judgment record of the court. The defendant alleged that he had a good and meritorious defense to the action, and, although he was unable to obtain a copy of the complaint, he alleged that, for the purposes of his motion, he denied all of its allegations, and specifically denied that he had cruelly treaded and abused the plaintiff.

Appellant thén alleges, in what he designates a cross-complaint, that he and the appellee, after their marriage on June '23, 1917, had lived and cohabited together as husband and wife until August, 1923, at which time the appellee abandoned the appellant, and had since that time refused to live and cohabit with him; that she had also offered indignities to his person such as to render his condition in life intolerable; that she had been guilty of wrongful, illegal, immoral and unlawful relations with other men, amounting to adultery with one M. O. Brooks. He alleged that Brooks had written to his wife a certain letter and set forth its contents, which, if true, would tend to prove that his wife had been guilty of adultery with Brooks. He alleged that two children had been born to him and his wife, a boy two years old and a girl four, and averred that his wife was not a fit person to have the custody of the children and to rear them. He alleged that he had been an actual resident of Union ‘County for more than one year past, and the cause of divorce existed within the State within five years before the commencement of the action, and he prayed that the decree entered be set aside and that appellant be permitted to file his answer and cross-complaint as above set forth, and that he be awarded the care and custody of his children.

The appellee answered the motion and cross-complaint, alleging that legal notice had been given appellant, and denied their allegations. She reiterated the allegations of her original complaint and tendered proof of' publication of the warning order, and made the same an exhibit to her answer. She alleged .that the appellant at the time the appellee filed her complaint in the original action, was living in Oklahoma, and did not return until the latter part of October, 1923. She alleged that, after appellant’s return from Oklahoma in November, 1923, he procured an attorney to represent him in appellee’s original action against him for divorce; that appellant, by and through his attorney, in January, 1924, served a written notice upon the appellee that he would take depositions to be read in evidence in the trial of the cause at the office of attorney Stein, in the city of El Dorado, on the 10th of January, 1924; that appellant notified the appellee that he had filed his answer on November 23, 1923; that both notices were filed as exhibits “B” and “C”.' The appellee then alleged that appellant, after being legally notified of the cause of action against him, refused to answer the complaint, and a decree was entered in her favor by the court after the court heard the evidence sustaining the charges -set forth in the complaint. Appellee then specifically denied the charges made in the appellant’s so-called answer, motion and cross-complaint, and concluded with, a prayer that the decree theretofore rendered be allowed to stand, and that appellant’s motion, answer and-eross-complaint be dismissed. She prayed for temporary alimony and support for herself and children, and $75 attorney’s fee.

The appellant filed a reply to the appellee’s answer to his motion, answer and cross-complaint, denying that there was any warning order issued in the original action, and denying that there was any' affidavit or proof of publication of said warning order, and denying that any depositions were filed in the action, and that any depositions were filed on the part of the appellee, and that there was any notice to take depositions served upon the appellant, although he had been, at all-times a citizen and resident of Union 'County. He denied that he was a citizen of Oklahoma at the time of the filing of the original complaint, and all the other allegations of the appellee’s answer to his motion, answer and cross-complaint. He alleged that he had no notice of the .pendency of the action against him until he saw an account in the newspaper that a decree had been rendered against him on May.15,1924. He denied that the alleged notices, marked..exhibits “B” and “C,” had been filed with the appellee’s reply to his motion, answer and cross-complaint, and denied that any decree had been rendered against him upon legal evidence, and- denied that the appellee was entitled to alimony and attorney’s fee, and prayed as in-his motion, answer and cross-complaint.

With the. issues thus made on the motion to set,aside the decree, the appellant gave notice to the appellee of the taking of depositions on June 18, 1924, at -the law office of - Stewart .& Oliver at El Dorado, Arkansas. Depositions were taken, pursuant to such notice, of Hugh T. Barksdale, Ethel Dollar, William Jackson and Mrs. Alice Barksdale. Later, by agreement of counsel, the depositions of Mattie Barksdale were taken. All these depositions were read on the hearing of the motion of the appellant to set aside the decree, and the court on November 5, 1924, entered an order refusing to vacate and set aside the decree and overruling the motion on the ground that same was filed out of time and not presented to the court during the term, to which rilling of the court the appellant duly excepted. He prayed, and was granted an appeal to this court. '

A transcript of the entire record of the proceedings was filed in this court on December 11, 1924, and an appeal granted by the clerk of the court. Although the appellant’s counsel in their brief alleged that, “there being a question in their minds as to whether the order of November 5 was such a final order as could be appealed from, they were therefore appealing from the decree itself of May 15, 1924,” yet it is obvious from the entire record that counsel were seeking to have the decree of May 15, 1924, vacated and set aside. The court therefore treats the appeal granted by the clerk of this court on the transcript lodged here as an appeal from the order of November 5, 1924, refusing to vacate and set aside the decree of May 15,1924.

Section 6290 of C. & M. Digest provides that “the court in which a final judgment or final order has been made, shall have power, after the expiration of the term, to vacate or modify such judgment or order * * * Second: By a new trial granted in proceedings against defendants constructively summoned. * * * Fourth: For fraud practiced by the successful party in the obtaining of the judgment or order. * * * Seventh: For unavoidable casualty or misfortune preventing the party from appearing or defending.”

The allegations of appellant’s motion to vacate the decree were to the effect that no notice of the action had been.served upon him; that he was at the time the com-' plaint was filed a citizen and resident of Union County, Arkansas, and had not been absent since the filing of the complaint; that no notice of the publication of the warning order had been given or filed; that the complaint upon which the action was based had been withdrawn from the files of the court and was in the possession of the plaintiff’s attorney, and that appellant’s attorney had no opportunity to examine the pleadings, as the same were not on file, and requested the plaintiff’s attorney not to take action until appellant’s attorney had an opportunity to examine the complaint, and that, notwithstanding such request, the counsel of the appellee proceeded'to procure the decree as set forth of May 15, 1924. He then denied the allegations of the complaint as set forth in the record, which complaint was filed October 10, 1923. He further set up that he had a good defense to the action, and that he himself was entitled to a divorce, and alleged grounds as above set forth in the motion, and asked that the decree of May 15, 1924, be set aside, and that he be permitted to defend the cause, and that he be awarded a decree for divorce and the custody of his children.

The appellee answered the motion denying its allegations, and alleged that appellant, at the time the action was instituted, was a citizen of Oklahoma, and tendered a proof of publication of the warning order, and alleged that the appellant notified the appellee by written notice on November 23, 1923, that he would file his answer in the cause, but did not do so. The appellee then denied that the appellant had a meritorious defense to the action, and denied that his alleged grounds for divorce existed.

Without setting out and discussing in detail the testimony adduced by the appellant to sustain the allegations of his motion, it suffices to say that his testimony tended to prove the allegations of his motion to vacate, and, although the appellee answered denying the allegations of the motion, and appeared by her attorney at the hearing thereof, still she did not adduce any testimony tending to controvert appellant’s testimony or tending to sustain the allegations of her answer and response to the motion to vacate. It occurs to us therefore that the trial court erred in refusing to hear appellant’s motion to vacate the decree of May 15, 1924, on the ground that same was filed out of time.

The appellant certainly made a prima facie showing of a meritorious defense to the action, and the proof adduced by him also tended to show that the procuring of the decree under the circumstances was at least tantamount to a legal fraud practiced upon the court. If it was true, as appellant alleged, and his testimony tended to prove, that appellant, before and at the time of the filing of the action, was a citizen and resident of Union County, Arkansas, then he had not been served with summons as the law provides, and the rendition of a decree upon constructive service was a legal fraud practiced upon the court. Although the appellee, in her answer to the motion, alleged that appellant was a nonresident of the State at the time of the institution of the action and issuing of the warning order, nevertheless she did not introduce any testimony tending to support these allegations and to controvert the testimony of the appellant. The testimony of - the appellant and his witnesses tended clearly to prove that appellant had not only a meritorious defense to the action, but that he himself had grounds for divorce. Moreover, appellee’s counsel, as appellant alleged and his testimony tended to prove, had withdrawn the complaint and other papers in the action, and was notified by appellant’s counsel that they desired to answer the complaint, and appellee’s counsel did not furnish appellant’s counsel with a copy of the complaint, nor restore the same with the other papers in the cause to the files of (the court, but the next day proceeded, on the contrary, to take a decree as if by default against the appellant. Such conduct on the part of appellee’s counsel, if it occurred, was tantamount to a legal fraud on the court, and such conduct on the part of appellee’s counsel would be sufficient to constitute an unavoidable casualty or misfortune preventing appellant from appearing and defending.

In Hunton v. Euper, 63 Ark. 323, upon tbe hearing of a motion to vacate a judgment, it appeared that a summons was issued on the original suit, and that a return upon it stated that it had been served upon defendant Super by delivering to him a copy. Euper swore that he had never been served with process' in the case, and'that he knew nothing of the judgment until long after the term of court had elapsed at which it was rendered. In that case the court held that the facts brought that case fairly within the spirit of the statute allowing .judgments to be vacated for unavoidable casualty or misfortune preventing the party from appearing and defending. The facts in the case at bar come well within the doctrine of that case, and are even stronger for the application of the statute. If it was indeed, true, as the appellant alleged, and his testimony tended to prove, that appellant at the time of the institution of the action was a citizen and resident of Union County, Arkansas, then it would necessarily follow that the affidavit of the appellee was false upon which the warning order was issued. If appellant was a- resident of Union County, Arkansas, at the time the affidavit for warning order was made, and at the time such order was issued, and if appellant and his counsel did not know of the pendency of the action until on the very day the decree was rendered, at which time there were no papers on file in the cause, and if appellee’s counsel proceeded to take the decree predicated upon alleged constructive service without restoring the papers, and giving appellant’s counsel an opportunity to answer, then,-in legal effect, the entire proceedings were as if appellant had' neither actual knowledge nor constructive notice thereof, and same were therefore hull and void. Section 6238, C. & M. Digest; Grinstead v. Wilson, 69 Ark. 587.

In Corney v. Corney, 79 Ark. 289, we held that, where a husband procured a divorce upon constructive service, falsély alleging that he resided in the county of the venue, and that his wife was a nonresident of the State, when both statements were false, and the wife, after the term of court had expired, brought suit to set aside the decree on the ground that it was procured by fraud, the court will vacate the decree and dismiss the original complaint for want of jurisdiction. That doctrine applies here. We are convinced that the appellant has alleged and proved sufficient facts to show that the decree of May 15, 1924, was rendered without sufficient notice to the appellant to give the court jurisdiction of the action, and also was obtained by legal fraud practiced on the court, and likewise that appellant has alleged and proved facts sufficient to show that he had a meritorious defense to the action. See Holman v. Lawrence, 102 Ark. 252; Knights of Maccabees v. Gordon, 83 Ark. 17; Quigley v. Hammond, 104 Ark. 449, where it is held that a party seeking to vacate a judgment must at least make a prima facie showing of a valid defense to the action in which the judgment was obtained.

Here the appellant has done more than that. The order of the court of November 25, 1924, is therefore reversed, and the cause is remanded with directions to allow the parties, if they so elect,-to amend their pleadings, to adduce further testimony, and to hear appellant’s motion to vacate, and for such other and further proceedings according to law, and not inconsistent with this opinion, as may be necessary to do justice between the parties.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Bowen v. Black.
    Opinion delivered February 1, 1926.
    1. Descent and distribution—ancestral estate.—Where an estate of inheritance came to an intestate on the part of the father, it goes to his next o.f kin in the line of his father’s blood.
    2. Homestead—conveyance by widow—re-entry by heirs._Where a widow attempted to convey her husband’s homestead, and yielded possession to the grantee, the holders of the title in remainder were entitled to enter and take possession of the land. and such right is not postponed by reason of the fact that dower has not been assigned to the widow.
    3. Limitation of actions—when infants barred.—In an action to recover land the infancy of plaintiffs is no protection against the statute of limitations where it began to run against their ancestor in her lifetime.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Gustave Jones, for appellant.

      Hillhouse •& Caldwell and John W. Stayton, for appellee.
   Wood, J.

This is ian action in ejectment by appellants against the appellee. The appellants alleged in substance that they were the owners of an undivided one-half interest in a certain tract of land in Jackson County, Arkansas; that Wesley Bowen, the owner of the land ip controversy, died in 1903, in Jackson County, Arkansas, intestate, leaving his widow and one child, James, surviving him; that James Bowen died intestate and without issue, leaving surviving him neither father, mother, sisters, brothers, or lineal descendants; that the only heirs of James Bowen were the children of one John Bowen, half brother of Wesley Bowen, these children being H. J. Bowen and J. R. Bowen; that Mary Bowen, the widow of Wesley Bowen, after her intermarriage with one Kirkpatrick, died in November, 1922; that the appellants were the only heirs of J. R. Bowen, and as such were entitled to an undivided half interest in the land in controversy. They prayed for possession and rents.

The appellee answered, and, after denying specifically the allegations of the complaint, alleged that Wesley Bowen died in 1900 seized and possessed of the land in controversy, which was his homestead, leaving his widow, and son James,'his sole heir at law, surviving him; that James died in 1901 without issue, leaving his mother, Mary Bowen, surviving him; that Mary Bowen intermarried with one Kirkpatrick and thereafter, on November 8, 1902, conveyed in fee simple to one G. E>. Clement the land in controversy, and pnt Mm in possession thereof; that on August 9, 1907, H. J. Bowen conveyed a half interest in the lands to 'Carter, and put him in possession thereof. On the 14th of January, 1908, Clements conveyed the land to R. P. Carter, and put him in possession thereof, and that Carter thereafter conveyed the land to the defendant Black, and put him in possession thereof. The appellee alleged that there had been no administration on the estate of Wesley Bowen;,that no dower had been assigned to his widow, Mary Bowen; that, at the time of her deed to Clement, the right to entry in those under whom appellants claim had accrued, and that such right had long since been barred by the seven years’ statute of limitations, which statute the appellee specifically pleaded in bar of appellants ’ action.

The parties agreed that the following are the facts in the case: “That Wesley Bowen was the owner of the land in controversy at the time of his death, and the same was his homestead; that he departed this life intestate in the year 1900, leaving surviving him his widow, Mary Bowen, and his son James, by the said Mary; that the said son James departed this life in the year 1901, intestate, unmarried and without issue, leaving surviving him his said mother; that thereafter the said Mary Bowen intermarried with one Kirkpatrick, and on the 8th day of November, 1902, sold and conveyed said land in fee by her deed of that date to Gr. D. Clement, and put him in possession thereof; that said Mary Kirkpatrick after-wards died in November, 1922. That on the 14th day of January, 1908, the said G-. D. Clements and wife, by their deed of date, conveyed said lands to one R. P. Carter, and put him in possession thereof; that thereafter, and on the 31st day of August, 1909, the said R. P. Carter and wife, by their deed of that date, conveyed said lands to the defendant, and put him in possession thereof; that on the 9th day of August, 1907, the said H. J. Bowen and wife, by their deed of that date, conveyed a one-half interest in said lands to the said R. P. Carter, and put him in possession thereof.

“That the said John Bowen was a half brother of the said Wesley Bowen, and died prior to the death of said Wesley Bowen, leaving him surviving H. J. Bowen and John R. Bowen as his sole heirs at law; that the said John R. Bowen died in the year 1897, leaving him surviving the plaintiffs, Dave Bowen and Jeftie Bowen, and Johnnie Bowen, and a daughter, 'Sarah Bowen; that the said Sarah Bowen died, leaving surviving her the other of the plaintiffs, Louis Cornwell and Emma Cornwell as her sole heirs at law; that the said Sarah Bowen was born in the year 1892, and afterwards intermarried with Louis Cornwell at the age of seventeen years, and at the time of her death she was past the age of 21 years. That the plaintiff Dave Bowen was born in the year 1891; 'the plaintiff Jeffie Bowen was born in the year 1890, and the plaintiff John Bowen was born in the year 1896. That no administration was ever had on the estate of Wesley Bowen, nor was dower ever assigned to his said widow in said lands.

“That, upon the execution of the said deed by said R. P. Carter to him, defendant entered into possession of said land, believing, in good faith, that he was the sole owner thereof, and that since said date he has continuously occupied and claimed said land, as the sole owner in fee thereof, openly, notoriously, peaceably and adversely against the world, and that he has held peaceable possession of the same up to the filing of the complaint herein.”

The conclusion we have reached makes it unnecessary to state the facts as to the improvements and rents.

The court found that the appellants were barred by the seven years’ statute of limitations, and entered a decree dismissing the appellant’s complaint and for costs, from which is this appeal.

When Wesley Bowen, the owner of the land in fee simple, died, the land descended in fee simple to -his son James, subject to the rights of dower and homestead in Mary Bowen, the widow of Wesley Bowen and the mother of James Bowen. Since James Bowen inherited the land in controversy from his father, it was an ancestral estate in James Bowen, and when James died, being an ancestral estate, the lands ascended to the father’s line whence it came, not in postponement, bnt in exclusion, of the mother’s line. Section 3480, C. & M. Digest; Kelly’s Heirs v. McGuire, 15 Ark. 555. Counsel contend that, when James Bowen died, leaving no children and no father, the mother inherited a life estate in the lands from her son James, under § 3471, C. & M. Digest, which provides that “ when a person shall die, having title to any real estate of inheritance, * * * and shall be intestate as to such estate, it shall descend. * * * Second: If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts.”

The contention of counsel is contrary to the construction given our statute of descent and distribution ■in the celebrated case of Kelly’s Heirs v. McGuire, supra, where we said: “If the estate comes to the intestate by the father, or, as it may be differently and as well expressed, on the part of the father, then it must ascend to the father and his heirs, and thus overturning the inflexible rule of the common law, that an estate could never ascend, but should rather escheat to the lord. And so, if it comes iby or on the part of the mother, it goes to the mother and her heirs, in exclusion of the heirs of the father. In other words, it remains in the paternal or'maternal line from whence it was derived.” Therefore, when J ames Bowen died in 1901, the estate of inheritance in the lands in 'Controversy went to his next of kin in the line of his father’s blood, who were H. J. Bowen and the children of John R. Bowen, Dave, Jeffie, Johnnie and Sarah Bowen. These heirs of the father’s blood inherited the land in controversy from James Bowen, subject however to the dower and homestead rights of Mary Bowen, his mother. As no administration was had on Wesley Bowen’s estate, and no dower was assigned to his widow, Mary Bowen, under her right of homestead she could hold the dwelling house, and farm thereto attached, which constituted the homestead until her dower was assigned. While this condition obtained, the facts show that Mary Bowen, who was then the wife of one Kirkpatrick, executed a warranty deed in fee simple to the lands in controversy to one Gr. D. 'Clement, on November 8, 1902, and put him in possession thereof. This deed was a nullity as a conveyance of the fee, because Mrs. Mary Kirkpatrick had no fee in the land to convey; and, as the homestead right was personal to her, and as her dower had not been assigned, the conveyance of this land carried no interest therein to the grantee, Clement, except the equitable right to have dower assigned. However, the grantee took possession of the lands under his conveyance. So that this' conveyance and the yielding of possession thereunder by Mrs. Kirkpatrick constituted an abandonment on her part of her homestead and dower rights. Therefore, the heirs of James Bowen, appellants herein, the owners of the land in controversy by inheritance, had the right then to enter and take possession of the lands. Murphy v. Graves, ante p. 180. The statute of limitations began to run against the appellants from that date, November 8, 1902, and continued to run against them until they instituted this action on September 6, 1923. On the latter date the appellant, Have Bowen, was thirty-two years old, Jeffije Bowen was twenty-three years old, and Johnnie Bowen twenty-seven years old. .Sarah Bowen had died before the institution of the action, leaving her surviving two children, Louis and Emma Cornwell. But the statute of limitations had commenced to run against Sarah Bowen, .their mother, and was complete as against her before her death. She was past the age of twenty-one years when ,she died. Had she lived until the institution of this suit, she would have been thirty-one years of age at that time. The statute of limitations having begun to run against Sarah Bowen before she died, her children, even if they were minors at the time of the institution of this action, were likewise barred. See Bender v. Bean, 52 Ark. 132; Reed v. Mooney, 115 Ark. 1.

The case on the facts cannot be distinguished in principle from the case of Fletcher v. Josephs, 105 Ark. 646, where we held that the widow iby conveying a homestead abandoned her rights therein, and that upon such conveyance the right of entry of the heirs is complete, subject only to the right to have dower assigned. ' We also held in that case that the right to have dower assigned does not postpone the heir’s right of entry. It clearly appears that the appellee and those under whom he claims had adverse possession of the land in controversy under color of title for more than seven years before the institution of this action. The findings and judgment of the court are correct, and the judgment is therefore affirmed.


author: Hart, J.,

text:
    Hudson v. Simonson.
    Opinion delivered February 1, 1926.
    1. Injunction—adequacy op legal remedy.—An injunction will not lie to restrain proceedings in the assessment of benefits where there is an adequate remedy provided ¡by the statute.
    2. Drains—inequitable assessment—remedy.—Under Crawford & Moses’ Dig., § 3625, providing that if, by reason of any change in the plans. of a drainage district, any property owner deems that the assessment on his property has become inequitable, he may petition the county court for a reassessment, held that the remedy provided excludes a right to resort to equity, in the absence of fraud, unavoidable casualty or other ground for equitable interference.
    3. Pleading—effect of demurrer.—A demurrer admits only those facts which are well pleaded.
    4. Drains—relief in equity against assessments.—Equity will not interfere by injunction against the commissioners of a drainage district, upon an allegation that plaintiffs believe that the commissioners do not intend to build certain laterals to the main ditch, for the construction of which plaintiffs’ land has been assessed, where no facts are alleged upon which their belief is based.

      Appeal from Mississippi Chancery Court, Osceola District; J. M. Futrell, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    T. F. Hudson and D. F. Taylor, landowners in Sub-district No. 3 of Grassy Lake & Tyronza Drainage District No. 9 of Mississippi County, Arkansas, brought this suit in equity against E. C. Eose, S. E. Simonson and Wilson Burchfield, as commissioners of said subdistrict to enjoin them from issuing bonds, and from carrying out any contract for construction work in said subdistrict.
    The prayer of the complaint also was that the organization of said subdistrict be declared null and void; but if the court should find otherwise, that a mandatory injunction be issued to compel the commissioners to advertise and let the contracts for certain laterals which were excluded from the plans for construction work in said subdistrict.
    According to the allegations of the complaint, on the 24th day of 'September, 1925, the assessment of benefits in said subdistrict by the commissioners was approved by the county court, including a heavy assessment of benefits on the lands of the plaintiffs. The same order of the county court which confirmed said assessments of benefits also modified the plans for construction work in said subdistrict so as to exclude a large number of laterals east of the Frisco Eailroad and north of the town of Luxora.
    On account of the exclusions of these laterals the county court reduced the assessments of benefits upon the lands affected by said laterals, in various sums ranging from forty to sixty per cent, thereof. Subsequently certain landowners in said subdistrict filed a petition for a writ of certiorari in the circuit court quashing the order of the county court excluding said laterals and approving the assessments of benefits. On the 21st day of November, 1925, the circuit court rendered a judgment quashing the order of the county court in so far as it modified the plans and excluded said laterals, and overruled said petition in so far as it attempted to have the assessments of 'benefits quashed. The assessments of benefits on the lands of the plaintiffs were not reduced, although they were directly affected and damaged by the exclusion of said laterals from the plans for construction work in said subdistrict. On account of the reduction of the assessments of benefits on several thousand acres of land in the vicinity of the laterals excluded by the county court, the burden was greatly increased on the lands of all other property owners. The judgment of the circuit court quashing the order of the county court in so far as it excluded said laterals from the construction work in said subdistrict reinstated said laterals as a part of the construction plans in said subdistrict.
    On the 18th day of November, 1925, the commissioners of said subdistrict made a contract for the sale of bonds, and also entered into contract for the construction of all laterals in said subdistrict except the laterals excluded iby the county court and reinstated by the circuit court. The plaintiffs further allege that the defendants did not intend to let any contracts for the construction of siaid laterals.
    The defendant filed a demurrer to the complaint, which was sustained by the chancery court. The chancellor was of the opinion that the remedy of the plaintiffs is at law, if the commissioners should refuse to carry out the plans of the subdistrict. It was decreed that the ■ complaint be dismissed for want of equity, and the case is here on appeal.

      Gladish & Tnylor, for appellant.

      J. T. Coston, for appellee.
   Hart, J.,

(after, stating the facts). The Legislature has provided for the assessment of benefits upon the land in drainage districts, and the power of determining these benefits is vested in the commissioners. The statute also provides the remedy for the landowners in cases of unequal, irregular or illegal assessments.

Under § 3613 of Crawford & Moses’ Digest the commissioners are made the assessors of benefits and damages. Under § 3615 it is their duty to deposit the assessment with the county clerk, where it shall be kept and preserved as a public record. The section provides that the county clerk shall give notice of the filing of the assessment by publication two weeks in some weekly newspaper in the county or counties in which the lands of the district may lie. The section further gives the landowners a remedy to complain to the county court and the right to an appeal from the order of the county court in the premises.

Under § 3625 the commissioners are given the power to alter the plans of the ditches and drains. It also provided that if, by reason of such change of plans, any property owner deems that the assessment on any property has become inequitable, he may petition the county court for a reassessment in the manner provided in the section. The section also gives the property owners the same right of appeal that is provided for in the case of the original assessment.

It is well settled in this State that an injunction will not lie to restrain proceedings in the assessment of benefits where there is an adequate remedy provided by the statute. In such case the statutory remedy must be followed. Chapman & Dewey L. Co. v. Road Imp. Dist. 127 Ark. 318; McCord v. Welch, 147 Ark. 362; House v. Road Imp. Dist. No. 2, 158 Ark. 330; Road Imp. Dists. 1, 2 and 3 v. Crary, 151 Ark. 484; and Wimberly v. Road Imp. Dist. No. 7, 161 Ark. 79.

Thus it will be seen that the plaintiffs had an adequate remedy under the statute to correct any inequalities or illegalities in the assessment under the change of plans, and under the authorities cited the statutory remedy is exclusive, unless some well-known ground of equitable interference is alleged. In this connection it may ■be stated that there is no allegation in the bill of facts which shows that the plaintiffs, by reason of fraud, unavoidable casualty, or any other ground calling for equitable interference, were prevented from pursuing the remedy provided by the statute in case of illegal or unequal assessments.

It is contended, however, that the chancery court has jurisdiction under the allegation that the plaintiffs are informed and ibelieve that the defendants do not intend to let any contract for the construction of said laterals in compliance with the judgment of the circuit court.

This court will not inquire whether or not the commissioners will fail to discharge their duties upon such a vague and indefinite allegation. No facts are set up upon which they base their belief that the commissioners will not discharge their duty. Their pleadings is a mere conclusion on their part, which is not a ground of demurrer. A demurrer admits only those facts which are well pleaded. House v. Road Imp. Dist. No. 2, 158 Ark. 330. So long as the commissioners keep within the limits of the powers conferred upon them by the statute under which they act, and they are guilty of no corrupt or fraudulent conduct in the discharge of their official duties, the courts have no power to control their action by mandatory injunction. If courts of equity could interfere upon such a vague and indefinite allegation as the one in question, it is difficult to perceive at what point they would stop, or what would prevent their taking upon themselves the whole administrative power of the commissioners. Such a practice would open the door to much useless litigation.

We are of the opinion that the plaintiffs were not entitled to the relief sought under the allegations of their complaint, and that the chancery court committed no error in sustaining a demurrer to it.

The decree will therefore be affirmed.


text:
    Hutcheson v. Pitts.
    Opinion delivered February 1, 1926.
    1. Sheriffs and constables—time for filing constable’s bond.— Under Crawford & Moses’ Dig., § 1444, providing that every constable shall, within ten days after his election or appointment, file his bond, etc., and § 1442, Id., providing that the county judge shall furnish a certificate of election to a constable who has been elected, held that a constable is required to file his bond within ten days after he receives his certificate of election.
    2. Offices and officers—beginning of term.—Under art. 3, § 8, Const., the Legislature has the power within reasonable limits to fix the date when terms of ofike begin.
    3. Sheriffs and constables—beginning of term of constable.— Under § 8071, Crawford & Moses’ Dig., providing that the terms of State, county and township officers shall begin on January first following their election, held that the term of office of a constable begins on January first following his election.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT BY THE COURT.
    W. J. Hutcheson instituted this action in the circuit court against W. A. Pitts, and alleged that Pitts is trying to usurp the office of constable, to which he is entitled, and prays that the court make an order declaring that he be entitled to■ the office of constable, and that the office, so far as W. A. Pitts is concerned, be declared vacant.
    • W. A. Pitts filed an answer denying the allegations of the complaint and setting up facts which showed that he was the duly elected and qualified constable of Osage Township.
    The case was tried before the circuit court sitting as a jury. The court found from the evidence the following : W. A. Pitts ivas duly elected constable of Osage Township, in Benton County, Ark., at the general election held on the 7th day of October, 1924. On October 13, 1924, the board of election -commissioners of said county issued to said Pitts a certificate of election as such constable. On October 31, 19-24, W. A. Pitts filed with the presiding judge of the county court of Benton County his bond in the sum of $500 as constable of Osage Township, and the bond is in the form required by law, and is signed by a good and sufficient surety. On October 31, 1924, W. A. Pitts took the oath of office as .constable of Osage Township in the manner and form required by the Constitution and laws of the State of Arkansas. At the general election held in October, 1922, ¡W. J. Hutcheson was duly elected constable of Osage Township, and qualified and acted as such, and is still claiming to act as constable on the ground that his term of office does not expire until the first day of January, 1925.
    On the other hand, W. A. Pitts claims that the term of office of W. J. Hutcheson as constable of Osage Township ended on the 30th day of October 1924, and that his term began on the 31st day of October, 1924.
    The circuit court found the law and facts in favor of W. A. Pitts, and it was .adjudged that he was the duly elected, qualified and acting constable of Osage Township, and that his term of office began on October 31, 1924. It may be here stated that the findings of facts made by the circuit court were sustained by the evidence in the record.
    W. J. Hutcheson has duly prosecuted an .appeal to this court.

      Joe Beasley, for appellant.
   Hart, J.,

(after stating the facts). In the first place it is contended by counsel for appellant that appellee was not a duly qualified elector of Osage Township and not eligible to be elected to the office of constable and to serve as such officer. We can not agree with counsel in this contention. The circuit court was justified in finding from the evidence that the poll-tax of W. A. Pitts was paid by Pierce Gralbreath on the 5th day of July, 1924, and that he was otherwise a qualified elector of such township, and duly elected to the office of constable at the general election held on October 7, 1924.

It is next contended that Pitts is not entitled to serve as constable of Osage Township because he did not file his bond within ten days after his election, as required by § 1444 of Crawford & Moses’ Digest.

The record shows that the general election was held on the 7th day of October, 1924, and Pitts did not file his bond until the 30th day of October, 1924. Hence it is contended that he did not file his bond within the ten days required by the statute. It is true that § 1444 of the Digest provides that every constable shall, within ten days after his election or appointment, enter into bond to the State of Arkansas, etc.; but in interpreting this clause of the statute we must take into consideration other statutes bearing on the question.

Under § 3836 of the Digest, as soon as the returns from all the precincts are received, but in no event later than the 7th day after the election, it is the duty of- the county election 'commissioners from the several precincts to proceed to ascertain and declare the result of said election, and within fifteen days after t'he day of said election to deliver a certificate of his election to any person having the highest number of legal votes for any county or township office. Pursuant to this statute the election commissioners issued a certificate of election to Pitts on October 13, 1924.

Section 1442 of the Digest, which is article 7, § 47, of the 'Constitution, provides that the qualified electors of each township shall elect a constable for the term of two years, who shall be furnished by the presiding judge of the county court with a certificate of election.

On the 30th day of October, 1924, the county judge of Benton 'County issued to said Pitts a certificate of election las constable of Osage Township in the manner and form prescribed by law. When all these provisions of the statute and of the Constitution are construed together, we think that the ten days within which the constable shall file his bond mean ten days after he had received his certificate of election from the presiding judge of the county court. Under our election laws it was the duty of the election commissioners first to certify within a designated time the votes cast for the officers in each precinct in the county. Prom these returns the county judge received information upon which to act in issuing his certificate of election to the constable. The certificate furnished him by the county judge was the evidence of his election, and the constable was justified in waiting until he received this before he attempted to qualify as constable. There would be no useful purpose to be served by requiring the certificate of his election to be issued to him by the county judge if he was required to act on other information and to file his bond within ten days after the day of his election. We do not think that the framers of the statute intended it to be given such a literal and restricted meaning, but that they meant that he must file his bond within ten days after the completed election, that is, after he received his certificate notifying him of his election.

This brings us to a consideration of the question of whether, under the law, the term ofW.J. Hutcheson ended on the 30th day of October, 1924. The circuit court held that it did, but we think that it erred in so 'holding. It has been frequently said that it is an elementary principle that the law abhors vacancies in public offices, and great precaution is usually taken against their occurrence. Our Constitution provides the length of terms of constitutional officers, and article 7, § 47, provides that the qualified electors of each township shall elect a constable for the term of two years, who shall be furnished by the presiding judge of the county court with a certificate of election, on which his official oath shall be indorsed. Article 19, § 5, of the Constitution provides that all officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.

In construing the provision of the Constitution fixing terms for constitutional officers in connection with the section providing that they shall continue in office until their successors are elected and qualified, and article 3, § 8, of the 'Constitution giving the Legislature power to‘ fix the time for holding the biennial general election, this court has held that the Legislature has power to readjust the commencement of official terms within reasonable limits. Hendricks Hodges, 122 Ark. 82, and cases cited.

In the exercise of this power, the Legislature of 1917 passed an act to fix the tenure in office of certain State, district, county and township officers. This statute was passed after the Legislature had changed the time of holding the general election for State, county and township officers, and consolidated the same with the election for congressional officers held in November, and is § 8071 of 'Crawford & Moses’ Digest. It will be noted that the object of the section is to fix the first day of January, following their election, as the date when the terms of certain State, county and township officers shall begin. Among the officers mentioned whose terms shall begin on the first day of January, following'their election, are all county officers except members of the lower house of the General Assembly, and township officers and road overseers, when road overseers are elected. The constable is a township officer, and, under the readjustment provided by this section of the statute, his term of office begins on the first day of January, following his election, which, as it stood at the time of the passage of the act, was the same date in November when the congressional elections were 'held. It is true that the Legislature of 1921 again changed the time for holding the general election for State, county land township officers and fixed it on the next Tuesday after the first Monday in October, 1922, and every tivo years thereafter (General Acts of 1921, p. 74); but this section did not provide for any readjustment of the commencement of their official terms. In the absence of such a statute, the commencement of the terms of the various officers -remained as provided for in § 8071 of the Digest, and this, as we have already seen, was the first day of January, following their election.

The result of our views is that the term of W. J. Hutcheson, as constable of Osage Township, did not expire until the first day of January, 1925, and the term of W. A. Pitts, as such constable, did not commence until that day. The .judgment of the circuit court ousting W. J. Hutcheson from the office of constable of Osage Township, and declaring' the term of W. A: Pitts to commence on that day, was rendered on the 29th day of November, 1924.

It follows that the judgment was erroneous, and must be reversed, because the circuit court had no power to oust Hutcheson from office until his term expired, and the term of Pitts began on the first day of January, 1925.

It will be noted that the term of Hutcheson has now expired, and, if he is in fact attempting to hold the office of constable of Osage Township, the circuit court is directed to oust him from said office and to declare W. A. Pitts the incumbent of said office, and for other proceedings according to law and not inconsistent with this opinion.

Inasmuch as this is a law case, and las the judgment of ouster was prematurely rendered against W. J. Hutcheson, the costs of the appeal will be taxed against W. A. Pitts. -


author: Smith, J.

text:
    Wood v. Bigham.
    Opinion delivered February 1, 1926.
    1. Dowek—prior mortgage.-—-The -dower rights of a widow are subject to a mortgage executed by the husband before her marriage.
    2. Homestead—lien op mortgage—-right op widow to rents.— Where a widow rented the homestead of her husband which was subject to -a mortgage given by the husband before her marriage, she -acquired no rights to such rents where, before the rents were due, the mortgagee brought -suit to foreclose his lien, and procured the appointment of a receiver to collect the rents, and subsequently purchased the lands at foreclosure sale.
    Appeal from. Jackson 'Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      Boyce & Mack, for appellant.

      O. W. Scarborough, for appellee.
   Smith, J.

On April 25, 1923, appellant T. L. Wood filed a suit in the Jackson Chancery Court against the widow and heirs-at-law of E. K. Bigham to foreclose a mortgage which Bigham had executed on the 12th day of January, 1920, to indemnify Wood .against liability as an indorser on the note of Bigham to the Arkansas Bank & Trust Company of Newport in the sum of $1,600. After making a partial payment on the note Bigham made default, and Wood was required to pay the note, whereupon he brought suit to foreclose the mortgage.

The bill to foreclose alleged that one T. J. Tucker was committing waste on the land 'by cutting timber thereon, and there was a prayer that Tucker be enjoined from cutting timber, and a further prayer that a receiver be appointed to take charge of the land and collect the rents thereon. Proper service was had on the widow and heirs-at-law of 'Bigham, and a guardian ad litem was appointed to defend for the minor children of Bigham, who filed an answer denying all the ¡allegations of the complaint. The administrator of Bigham also filed an answer.

On May 29, 1923, a decree was rendered enjoining Tucker from cutting and removing the timber, and a receiver was appointed to collect .the rents. The decree found the sum due and secured by the mortgage to be $808.10, and ordered foreclosure of the mortgage, and to this end appointed a commissioner to sell the land. The mortgage decreed to be foreclosed was a second mortgage, and the sale was made subject to the prior mortgage.

The receiver appointed in the decree duly qualified as such on the 2d day of September, 1923, and on March 3, 1924, filed a report, in which he stated that the rents collected amounted to $400.

Pursuant to the decree of foreclosure the commissioner sold the land on November 16, 1923, for the sum of $350, and on the 28th day of November, 1923, the sale was confirmed, and a deed executed to the purchaser, which was approved by the court. It thus appears that the proceeds of the sale of the land and the rents collected do not, together, equal the sum secured by the mortgage. No appeal was ever prosecuted from any of these proceedings.

On May 26, 1924, Lillian Bigham, one of the defendants in the foreclosure suit, filed an intervention, in which she alleged the following facts: That she became the wife of Bigham, the mortgagor, on June 4, 1920, and that her husband died on the 20th of August, 1922. At the time of this marriage Bigham was a widower, and had several minor children by a former marriage. That her husband resided on the land mortgaged, and was living there at the time of 'his death, and the same was his homestead, and the intervener has since the death of her husband resided in the chief dwelling house on said land, and that the same was her homestead, and that she had no other homestead. Intervener further alleged that the probate court had appointed an administrator of the estate of her husband, who had qualified, and was then acting as such, but that neither the administrator nor the heirs-at-law had ever assigned her dower or homestead in the land mortgaged. She prayed therefore that the court direct the receiver to pay over to her the rent which he had collected.

It was stipulated that the intervener, who was then residing on the land as ¡her homestead, had on the ............ day of January, 1923, rented the land to a tenant for $400, payable on November 1, 1923, and that there were no other rents due on the land for that year.

The court granted the prayer of the intervention, and directed that the rents of 1923 be paid the widow—the intervener—and this appeal is from that decree.

The action of the court below is defended upon the ground that dower had never been assigned the widow as required by § 3531, C. & M. Digest. This section provides that, if the dower of any widow is not assigned and laid off to her within three months after the death of her husband, she may remain and possess the mansion or chief dwelling house of her late husband, together with the farm thereto attached, free of all rent, until her dower shall be laid off and assigned to her.

It is true Mrs. Bigham did not sign the mortgage; but she is as much bound by it as if she had done so, for the reason that her husband was unmarried—was a widower—at the time he executed the mortgage. The mortgage was dated January 12, 19'20, and the marriage occurred June 4, 1920. Such rights therefore as the widow had to dower were subject to this mortgage. McGill v. Hughes, 84 Ark. 238.

Under the facts above stated, it appears that the suit to foreclose was brought and that a receiver had been appointed and bad qualified before the rent matured. This action resulted in impounding the rent, and the purchaser at the foreclosure sale became entitled to the rent. Deming Investment Co. v. Bank of Judsonia, ante, p. 65; Gaily v. Ricketts, 123 Ark. 18; Oliver v. Deffenbaugh, 166 Ark. 118; Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859; Osburn v. Lindley, 163 Ark. 260.

The case of Bank of Weiner v. Jonesboro Trust Co., supra, involved the right of a mortgagee of the land to the rents, and what we said there is controlling here. Quoting from the case of Osburn v. Lindley, 163 Ark. 260, We said: “The bringing of this action (a suit to foreclose a vendor’s lien) and the petition asking for the appointment of a receiver to take charge of the rents and profits of the lands on which the vendor’s lien existed had the effect of impounding the proceeds of those rents and profits in the hands of the receiver for the benefit of the vendor, to ibe appropriated in satisfaction of the decree in his favor for the purchase money. The rents and profits on the lands, after their sequestration by the institution of this suit, and the appointment of a receiver, stand in the same category as the land itself. A vendor’s lien in equity is of the same nature as a mortgage, and is treated and enforced as such” (Citing cases).

What was said in the recent case of Deming Investment Co. v. Bank of Judsonia, ante, p. 65, is not opposed to the views here expressed, or to those announced in the cases cited. That case expressly reaffirmed the earlier cases on the subject, but we distinguished that case from the previous cases by saying: “We do not regard the principles of law decided in these cases as controlling here, for the reason that in neither of them were the rights of a bona fide purchaser of the rent note involved. An assignment of a rent note by the lessor to a bona fide purchaser for value before the transfer of the reversion by him operates as a severance of the. rent from the reversion.”

The Deming Investment Company case expressly recognized that the appointment of a receiver was a sequestration of the rents, and that in such cases the purchaser at the foreclosure sale acquired the right to the rents.

The widow, the intervener, was not a bona fide purchaser of the rent note. She had rented the land for a sum payable to herself on November 1, 1923. Such rights as she had were derived from her husband and were taken subject to the mortgage. It was therefore error for the court to hold that the widow was entitled to these immature rents, for the reason that the receiver was appointed and had qualified before the rents were due or had been collected.

The decree of the court below will therefore be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.


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

text:
    Reed v. Rumph.
    Opinion delivered January 11, 1926.
    1. Equity—administering complete relief—Where' a complaint ■ invoked the jurisdiction of the chancery court toy a prayer for cancellation of a mortgage and declaration of a trust, the court, having acquired jurisdiction, could, if the testimony supported the allegations, grant that relief, and, as incident thereto, decree partition, though defendants asserted an adverse holding.
    2. Judgment—res judicata.—Where plaintiffs in a former suit prayed that a certain conveyance to their sister be treated as a conveyance to her in trust, a decree therein dismissing the complaint for want of equity is res judicata in a suit by the same plaintiffs to- set aside such conveyance.
    3. Brokers—accounting.—Where defendant agreed to dispose of plaintiffs’ interest in certain land for a certain commission, and plaintiffs made a quitclaim deed to him as trustee, his relation to plaintiffs called for the exercise of the highest candor and good faith, and, where he did not sufficiently inform plaintiffs of the value of their interest in the land, he would be required to account for the sum received for the land in excess of the agreed commission.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed in part.

      D. D. Glover and McKay & Smith, for appellant.

      GaMghcm & Sifford, T. W. Hardy and Powell, Smead & Knox, for appellee.
   Smith, J.

Appellants, who were the plaintiffs below, allege in their complaint that they, together with their sister Nannie Berry, were the sole heirs-at-law of their mother, Fannie Reed, who died April 2, 1885, and that at the time of their mother’s death she owned a 160-acre tract of land in Ouachita County. That Fannie Reed, their mother, had mortgaged this land in 1885 to one D. W. Chandler to secure advances to be made by said Chandler to enable Fannie Reed to make a crop in the year 1885, and upon the security of this mortgage Chandler made advances to Fannie Reed amounting to $51.82. That Fannie Reed died before the crop was gathered, and it was agreed between these appellants and their sister Nannie Berry that this sister should remain in possession of the land and ont of the proceeds of the crop should pay Chandler the indebtedness secured by the mortgage to him. That this was done and the indebtedness fully paid, and that, pursuant to this agreement in regard to the possession, Nannie Berry continued to occupy the land after the death of Fannie Reed, it being understood that Nannie Berry should occupy and cultivate the land and keep the taxes paid, her possession being for the benefit of herself and her tenants in common, to-wit, her brother and two sisters, who were the plaintiffs below land are the appellants here. That Nannie Berry made a crop on the land in 1886, and obtained advances to enable her to do so from Chandler in the sum of $82. That this debt of $82 was the personal obligation of Nannie Berry, aud was not secured by the mortgage which her mother had executed the previous year, but it was alleged that this debt of $82 was fully paid, aud that nothing was due Chandler on account of advances for either 1885 or 1886.

It was further alleged that, notwithstanding the fact that nothing was due under the mortgage, one J. C. Russell, in 1892, applied for and secured letters of administration on the estate of Fannie Reed, and thereafter the claim of Chandler for $82 was probated against the estate, and the land was sold in satisfaction of this demand.

Various irregularities in this sale are alleged; in fact, a conspiracy is charged between Chandler and Nannie Berry to procure the sale of the land. Chandler became the purchaser at the administrator’s sale, which was confirmed, and, after cutting the timber off the land, Chandler conveyed it to Nannie Berry by a quitclaim deed-. The administrator’s deed was dated August 2, 1895, and the deed from Chandler to Nannie Berry was executed February 11,1904.

We do not review the testimony tending to establish the allegations of the complaint in which it was prayed that this deed from Chandler to Nannie Berry be canceled, for the reason that it appears that the plaintiffs here were the plaintiffs in a former suit, which was decided adversely to them and is conclusive of the question.

Nannie Berry died in 1910, and was survived by an only child, a daughter named Parthenia, who had married one Arthur Sewell, and to this union two children were born, one a son named A. W., the other a son named John W. Sewell. These children are minors, and their mother Parthenia is dead.

In 1911 plaintiffs here brought suit to recover an undivided three-fourths interest in the land, and partition thereof was prayed. This complaint recited the ownership of the land 'by Fannie Reed, the execution .and payment of the mortgage hereinbefore referred to, the fraudulent appointment of an administrator of her estate, the probate of a demand against her estate which she did not owe and which had been paid by the person who did owe it, the irregularity of the appraisement, the inadequacy of the price at which t'he land was sold by the administrator, and the collusion between Nannie Berry and Chandler by which the sale was effected. ' This complaint prayed that the deed to Nannie' Berry from Chandler should be treated as a conveyance to her as trustee for the benefit of herself and her tenants in common, the plaintiffs here, who were the plaintiffs there.

Upon these allegations the court was asked to appoint a commissioner to state an account as to the rents, etc., and that the mortgage executed by Fannie Reed be canceled land held for naught, and that Nannie B'erry be declared a trustee under the deed to her from Chandler, and that partition of the land be decreed.

The depositions in that case were lost, but the pleadings were produced and offered in evidence at the trial from which the present appeal comes, and it appears from the answer filed in thiat case that issue was joined as to all the allegations of the complaint, and the answer alleged that title was claimed under the administrator’s deed and also by virtue of the more than seven years’ possession by Chandler after receiving the administrator’s deed before conveying the land to Nannie Berry. An attorney who participated in the trial of that cause testified that a day of the court was consumed in the trial. At the conclusion of that trial a decree was entered dismissing the complaint as being without equity. This decree was offered in evidence, and it is therein recited that the cause was heard on the pleadings and exhibits, the depositions of witnesses and documentary evidence, from all of which the court found “that the complaint of plaintiffs should be dismissed for want of equity and as not established by the proof introduced in said cause.”

Upon this finding of fact it wias there decreed “that the plaintiffs take nothing herein by virtue of their complaint, and that the same be and is hereby dismissed for want of equity, and as having not been established by the proof.” Upon this record the defendants herein entered a plea of res judicata.

Appellants now say this plea is unavailing, as nothing more was there adjudged than that the complaint was without equity, and that this finding resulted from the fact that the defendants were in the actual possession of the land au/d had alleged a title adverse to the plaintiffs, and upon this finding nothing remained for the chancery court to do but to dismiss the cause and remit the plaintiffs to their action at law.

We do not, however, so understand the effect of the decree. The cause was not transferred to the law docket, as it might and should have been if the chancery eourt had found only that there was an adverse holding of the land which presented an issue triable at law.

The complaint prayed equitable relief by way of the cancellation of the mortgage, and the declaration of an existing trust, and, if the court had found that the testimony sustained the allegations raising these issues, the equitable relief prayed could have been granted as an incident thereto, and partition could also have been ordered.

The chancery court had jurisdiction for this purpose, and that jurisdiction was invoked by the plaintiff, and, having acquired this jurisdiction, partition could have been decreed, had the testimony supported the allegations of the complaint, although defendants asserted an adverse holding. Trapnall v. Hill, 31 Ark. 345; Moore v. Gordon, 44 Ark. 334; Criscoe v. Hambrick,, 47 Ark. 235; Hawkins v. Layne, 48 Ark. 544; Cannon v. Stevens, 88 Ark. 610.

The case of Wheeler v. Bennett, 79 Ark. 210, sustains the plea of res judicata in the present case. That was a suit brought to vacate a decree of the chancery court, in which it was recited that the defendants had been constructively summoned but had made default, and a decree of partition had been rendered and the report of the commissioners making partition confirmed. Suit was brought to set this decree aside, and it was alleged in the complaint praying that relief that the party asking it wias not served with summons, did not appear in the suit, and had no information of the pendency thereof until after the rendition of the decree. The defendants in the suit to vacate the prior decree alleged, among other defenses, that the plaintiffs had, at a former term of court, instituted the same action, in the same court, setting forth the same cause of action, and seeking the same relief, and that the court had rendered a final decree, upon the pleadings and proof, dismissing the complaint for want of equity. This decree was pleaded in bar of that suit.

The decree pleaded in bar of the suit recited that: “This cause is heard upon the pleadings, affidavit of plaintiff and the record of decree and report of partition in the case of Bennett v. Bugg, * * * and, upon consideration, the court finds that there is no equity in the plaintiff’s complaint,” and upon this finding the cause was dismissed. The court then said: “It is urged in behalf of appellant that the decree in the former suit was in effect a nonsuit or dismissal for want of proseention, and was therefore without prejudice to another suit upon the same cause of action. The recitals of the decree do not sustain that contention. It appears therefrom that the cause was heard hy the court ‘upon the pleadings and affidavit of plaintiff and the record of decree,’ etc., and that upon consideration the court found no equity in the complaint, and dismissed it. The defendants in that suit (appellees Bennett and Lollar) were constructively summoned, and made no appearance; so, notwithstanding the default, appellant was required hy law to prove his cause of action against them. Kirby’s Digest, § 6253. The court found the proof to be insufficient to sustain the allegations of the complaint, and dismissed it. That decree was not appealed from or set aside, so far as this record discloses, and therefore barred appellant from prosecuting another suit upon the same cause of action.”

We conclude therefore that the decree rendered in the former ease is conclusive of the issues raised in the present case, as the former decree was never appealed from or set aside, and has become final.

There was a branch of this case which was heard and disposed of along with the main case which we next proceed to consider. It was alleged that the plaintiffs had employed G. S. Rumph to dispose of their interests in, the land, and that Rumph had disposed of their interest without properly accounting to them for the proceeds which had been derived from the sale of the land. Oil had been discovered in the vicinity of the land here in litigation, and Rumph was speculating in oil leases. He discovered that these plaintiffs apparently owned an interest in the land, and he wrote the appellant George Reed the following letter:

“I have been working for sometime to try and get the Berry lands straight, but have had a pretty hard time. A man in Chicago has been paying the taxes on some. Now, George, I am sending you an option to sign to me an oil and gas lease, so I can try and sell same, but before I can do much with it I will have to get abstract and see if yon and yonr sister actually own any interest in same. Please let me know what the man in Chicago name is and see what rights he has. Now, George, this option on the oil and gas lease is, if I can get anything out of it for you, I get a commission of ten per cent., and you all that own the land will get the balance. 'Some claim you and your sister have no interest in same at all, hut that will come out whenever the abstract is made. If your wife is up there, have her sign with you before a notary public and send back to me, and I will have your sister sign.
“Now whatever I get, if anything, I will give all to you after taking out for the abstract and ten per cent, commission. If it shows up you all have no interest, I will be out what I spend on it, and the man in Chicago will get it or whoever the legal heirs are. Attend to this at once, so I can get same finished up. I have about three hundred acres in that part of the country, and, if possible, I am going to try to get some man to take it all; if not, I will do the best I cau as I promised you. ’ ’

Bumph caused an abstract of the title to the land to be prepared at his own expense, which was submitted to an attorney, who, after examining the abstract, expressed the opinion that appellant Beed and his sisters— Seed’s coappellants here-—-could recover an undivided three-fourths interest in the land. This abstract had omitted the record of the decree in the former case which we have just discussed, and upon discovering this decree the attorney then advised Bumph and appellant Beed that this decree would bar a second suit.

Bumph testified that, pending the examination of the abstract by the attorney, and prior to the discovery of the omitted decree, he had agreed on behalf of appellants that the attorneys in the case should have as their fee, in the event the land was recovered, an undivided half interest in the recovery, and that Bumph and the three appellants should divide the remaining half interest equally. The attorneys with whom this agreement was made did not file the present suit.

Rumph also testified that, after being advised that appellants could not recover any interest in the land, he was importuned by appellant Reed to pay him something for himself and his sisters to secure a release of their interest in the land, but witness declined to do so for the reason that he did not know that he would be able to secure anything for a quitclaim deed. He admitted that appellants had previously conveyed their interest in the land to him as trustee, but he testified that this was done to protect himself , and the attorney in the event the land was recovered, so that he could make a division of the proceeds of the recovery. Rumph further testified that Reed was so importunate that he land his sisters be paid something that he finally agreed to pay Reed $150 and his sisters $50 each in full acquittance of any claim they might have for any part of the money which he might obtain for a quitclaim deed to the purchasers of the land from the 'Sewell heirs, and that, pursuant to this’ agreement, he paid those amounts aud took receipts therefor, which he offered in evidence, and that, when this payment was made, he was taking the chance of losing the sums thus paid ias well as the cost of the abstract, as he did not then know that he would ever receive anything for his deed.

The court below accepted Rumph’s version of this transaction and dismissed the suit against Rumph for the sum received by him for his quitclaim deed. It is admitted that Rumph received in cash and in oil $4,500 for his quitclaim deed.

This part of the decree is, we think, against the clear preponderance of the evidence. The letter we have set out above is unmistakable in its meaning and reserves to Rumph only ten per cent, of such sum as might be recovered through his efforts. The deed from appellants to Rumph was made to him, not individually, but as trustee, and we think the purpose of the trust should be decreed to be to effectuate tbe agreement contained in tbe letter.

It is true, nothing was conveyed by the quitclaim deed, as appellants owned no interest in-the land, but there was involved in the sale of the lease a large sum of money, about $70,000, and the purchaser was unwilling to accept the lease until the deed from appellants to Rumph was out of the way, and this objection to the title was disposed of by buying from Rumph as trustee a quitclaim deed, and for this deed the sum of $4,500 was paid.

The receipts to Rumph above referred to recite that the sum paid was “in full settlement for and satisfaction of all demands of any character or kind whatever against him for and in consideration of the deed executed to him for my interest” in the lands here involved. This receipt was dated October 7, 1922, whereas the quitclaim deed from Rumph as trustee to the purchasers of the oil lease was dated October 2, and was then in escrow awaiting the approval by the probate court of the lease from the guardian of the minor Sewell children.

The testimony shows that the exact sum to be paid Rumph had not then been agreed upon, and was finally definitely fixed after receipts had been executed. But the relation 'between Rumph and appellants was one Galling for the exercise of the highest candor and good faith, and we do not think he sufficiently disclosed to them the probable value of his quitclaim deed. On the contrary, he admits telling Reed that appellants had no valuable interest in the land, and he also testified that the sum paid him was virtually a gift.

Under the facts of the case we think this speculation of Rumph was not one to be approved, and that he should be required to settle with appellants, the beneficiaries under the trust deed, which was without consideration except that expressed in the letter from Rumph to Reed. Myers v. Linebarger, 134 Ark. 231.

The decree of the lower court below, therefore, will be affirmed, except in so far as it relates to Rumph, and as to him it will he reversed, and, as the cause appears to have been fully developed, it is here ordered that Rumph be allowed' a credit of $450 as commissions and the amounts evidenced in the receipts, and that appellants have judgment against him for the balance.

Smith, J.,

(on rehearing). It is insisted in the brief filed in support of the petition for rehearing that.there was nothing about the transaction which Rumph could have told the Reed heirs before paying them the $250 and taking receipts from them, and that at the time the deed was delivered to the 'Sewell heirs Rumph was operating under an agreement, not for a mere ten per cent, commission, but one whereby the attorneys in the ease were to have one-half of any amount received, the other half to be divided equally between the Reed heirs and Rumph.

An undisputed fact in the case is that, at the time the deed from the Reed heirs to Rumph was executed, nothing was paid by way of consideration, and the deed was made, not to Rumph as an individual, but to him as trustee. The deed from Rumph, as trustee, to the Sewell heirs was executed and placed in escrow on October 2, and one of the attorneys for Rumph on this appeal testified that ‘ ‘ a deed was prepared and executed by Rumph to me.et that requirement (that the claim of the Reed heirs be disposed of) and held in escrow with the lease which had been made by Sewell and by Sewell as guardian for the two minor children. ’ ’ The attorney representing the purchaser of the lease had made the requirement that a quitclaim deed from Ruinph as trustee be secured before the transaction was closed and the money involved ($70,000) paid to Sewell as guardian.

The sum which Rumph would receive had not then been agreed upon, yet Rumph admitted that he did not tell the Reed heirs of this requirement and that this quitclaim deed from him had been placed in*escrow, and while they were in ignorance of these facts he obtained acquittances from the Reed heirs by paying George Reed $150 and the two sisters of Reed $50 each.

It is also insisted in the brief in support of the motion for rehearing that Bumph has already paid the attorneys in the ease one-half of the consideration received by him for his quitclaim deed, and that he should therefore be required to account to the Beed heirs for only one-half of the remaining one-half, or one-fourth of the total consideration received.

The case was tried in the court below, on the theory that Bumph had purchased this property from the beneficiaries of the trust, and that he was under no duty to account to them for any part of the profit which he made. The position now taken, that’Bumph should account for only one-fourth of the consideration received, is therefore an inconsistent one. Moreover, Bumph did not claim or testify that he had ever- stated to either of the two sisters of George Beed that he was acting otherwise than under his proposition to charge ten per cent, of any recovery he might secure. In his cross-examination Bumph was asked this question: “Did you have a conversation with the other heirs, Millie Weaver and Mollie Gaskin, besides George Beed, after you wrote them this proposition of handling this for ten per cent., and you say he came about fifteen days after you wrote this letter—did you go then and have a conversation with those women about it?” and he answered, “No sir.”

The attorney representing Bumph did not testify that he was ever employed by Beed in any manner. The attorneys in the case all testified that, when the decree in the first case referred to in the original opinion was discovered, they gave the case up, after advising Bumph that the land could not be recovered. There was therefore no recovery under the' contract of employment of the attorneys by Bumph,-even though Bumph had had the authority to make such, a contract:-

Such sum as was recovered was paid after-the attorneys -had advised Bumph that nothing could be recovered, ■and after Bumph, according to his own admission, had advised George Beed that nothing • could be recovered, and after Bumph had refused to pay anything for the title which he later conveyed until, as he testified, he knew what he was going to get for his quitclaim deed. Now, while the testimony does show that Rumph did not know what he would receive for his quitclaim, deed, he knew that any sum he might receive would he paid for the quitclaim deed to the land for which he had paid nothing when it was executed and delivered to him as trustee. Yet, after representing to the Reed heirs that “their claim was no good,” he obtained their receipts without advising them that he had executed a quitclaim deed as trustee, which was then in escrow to be delivered when a satisfactory price was offered him for this deed.

We conclude therefore that there is no error in requiring Rumph to settle with the beneficiaries of the trust pursuant to the contract whereby he became trustee for them, and the motion for a rehearing is therefore overruled.

Chief Justice McCulloch and Hart, J., dissent.

DISSENTING OPINION.

McCulloch, C. J.

I differed widely with the majority as to the effect of the testimony in this case, but I did not record my dissent from the original opinion for the reason that nothing is gained by expressing a dissent on a mere question of fact. However, the court has, in an additional opinion on rehearing, expressed views which in effect relate to questions of law, therefore I feel justified in recording- my dissent at this time.

I think that the conclusions of the court upon all the questions relating to the liability of appellee Rumph are against the clear preponderance of the evidence. In the first place, there is no evidence that the alleged option between Reed and Rumph to sell the land on a commission basis of ten per centum ever became effective. The negotiations which led up to the preparation of the option contract were at a time when it was thought that the appellants, Reed heirs, had title to the land, and Rumph was to serve merely as sales agent. It was later discovered that the Reed heirs had no title. The option contract was never signed by the parties and never became effective, but, on the contrary, Reed and Rumpb entered into a new agreement whereby Rumph was to employ attorneys to look after the interests of the Reed heirs and divide the proceeds of any settlement with adverse claimants on the basis that the attorneys were to receive one-half and Rumph and the Reed heirs should divide the other half. The testimony on .this subject was conflicting, but the decree of the chancellor was based upon the testimony of Mjr. Smead, the attorney, and Rumph, on the one hand, as against George Reed alone on the other hand. The conclusion of the majority is based upon the unsupported testimony of Reed as against that of both Smead and Rumph.

In the next place, the court is giving too much effect to the failure of Rumph to mention to the Reed heirs the fact that he had executed a quitclaim deed to the Sewell heirs and placed it in escrow. It is undisputed that, at the time this deed was executed and left with Mr. Gaughan, there was no agreement whatever for a settlement, and the deed was not placed strictly in escrow, for there was no consideration agreed upon and no one had the absolute right to deliver the deed to the grantees. The deed was executed merely for the purpose of having it ready if it was found that a payment of some amount could be secured from the prospective purchaser. Now, there was nothing at that time for Rumph to disclose to the Reed heirs further than the bare fact that, in an effort to secure a price for the heirs, he had executed a quitclaim deed merely for the purpose of having it ready in the event a satisfactory deal could be made. According to the testimony in the case, Reed and the other heirs knew at that time that Rumph was engaged in an effort to find some one who would pay something to buy peace from the Reed heirs. All that Rlumph could have disclosed to the Reed heirs would have been the bare fact of the execution of the deed, and there was nothing in addition to that over and above the facts which the Reed heirs already knew. The agreement for the price came suddenly and unexpectedly at an opportune moment when the purchasers from the -Sewell heirs were anxious to close the deal and were willing to pay the disproportionate price of $4,500 to remove a cloud on the title caused by the execution of the deed to Rumph as trustee. The only circumstance which the majority find in justification for setting aside the settlement between the Reed heirs and Rumph is that he failed to tell them about this deed, and it seems to me that that fact is very far from showing a failure on the part of Rumph to disclose material information which might have affected the settlement.

The error of law which I think the majority has fallen into is in holding Rumph liable for the whole of the amount collected by him, even if it be held that the settlement between Rumph and the Rieed heirs should be set aside because of his failure to disclose the fact about his having previously executed a quitclaim deed to the Sewells. If, as the preponderance of the evidence shows, the last agreement between Rumph and Reed was that attorneys should be employed and given half of the proceeds, then the setting aside of the settlement between Rumph and the Reed heirs should not enlarge their rights above the stipulations of the- contract. In other words, if the court-finds justification in setting aside that last settlement, the rights of the parties are still dependent upon the terms of the contract. I perceive no reason why a court of equity should declare a forfeiture of the rights of Rumph under the contract. It is undisputed that he received a price largely in excess of anything that was expected after it was discovered that the Reed heirs in fact had no title. According to the preponderance of the testimony, Rumph was authorized to employ the attorney, and it is not just that Rumph should be required to lose the amount paid to the attorney out of the price received. In any view of the case, it seems to me that complete justice would be done by giving to the Reed heirs all that they would have obtained under the contract, less the amount which they received from Rumph in the original settlement.

I am authorized to say that Mr. Justice Hart agrees with me in the expression of these views.