text:
    Doyle v. State.
    Opinion delivered December 15, 1924.
    1. Arson — sufficiency of evidence. — Evidence in a prosecution for arson held sufficient to sustain a finding of guilt.
    2. Jury — ineligibility of juror. — A juror’s ineligibility to serve by reason of not having paid his poll tax could not ibe raised after the trial, where defendant did not attempt to ascertain the fact on voir dire examination, and it did not appear that the juror imposed himself on the court and defendant by representing that he had paid the tax.
    3. Criminal law — instruction as to alibi. — An instruction defining the defense of an alibi, and telling the jury that, “while the burden of proof is upon the State to establish the guilt of the defendant- beyond a reasonable doubt, it is incumbent upon the defendant to sustain his alibi by evidence which raises in your mind a reasonable doubt that he was present at the time and place of the alleged commission of the offense,” held correct.
    Appeal from Lawrence Circuit Court, Western District ; Dene H. Coleman, Judge;
    affirmed.

      L. B. Poindexter and II. L. Ponder, for appellant.

      J. 8. TJtley, Attorney General, John, L. Carter and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was indicted for having burned the barn of W. J. Wright on the night of July 18, 1922. At his trial he was found guilty, and sentenced to a term of two years in the penitentiary, and, to reverse that judgment, has prosecuted this appeal.

He first insists that the testimony was not legally sufficient to sustain the conviction. The testimony tending to support the verdict was to the following effect: After a proper foundation had been laid for the introduction of the testimony of W. J. Wright, who had died since a former trial, which had resulted in a mistrial, his former testimony was read. Wright discovered his barn was afire a few minutes after eleven o’clock on the night of July 18, 1922. The fire originated in a loft where a lot of shucks were stored. He suspected that the firo was of incendiary origin, and excluded all persons from the lot inclosing- the barn. A bloodhound was brought to the scene of the fire about 3:30 on the afternoon following the fire. Tracks were found made by a person who had been to the barn, and who had jumped over the fence as he left the lot. These tracks were measured, and the dog was put on that trail. The ground was sufficiently wet for the tracks to be plainly visible, and were made by a man wearing a No. 7 or 8 shoe. The party making these tracks traveled by a very circuitous route, which led in an unusual way, and were followed by the dog to appellant’s house. These tracks were measured about every two hundred yards, and were found to coincide with the track measured at the barn. There were places where the tracks indicated that the man who made them had lengthened his stride. The last measurement of the track was about 40 feet from appellant’s house, and was found to coincide with all the others. The distance from appellant’s house to the barn was only a quarter of. a mile, yet the trail followed by the dog covered a, much longer distance. The occupants of appellant’s house saw the party coming as they approached it, and were observed to be watching the sheriff and his party, who were following* the d'og. The members of the sheriff’s party thought appellant was about to leave the house by the back way, but appellant came to the officer when he was called. Appellant was barefooted at the time. The conversation between appellant and the officers made it apparent that appellant knew he was being’ arrested for burning* the barn. Shoes. No. 7 or 8 in size, were found, but they were not measured because the party who found them did not have the measure at that time. One member of the sheriff’s party testified that appellant remarked, “I knew, when they °'">t the'dog*, they would get me.” Another witness testified that he saw appellant near the place where the barn burned, after the fire, and' that he was barefooted at the time, and that he had never seen appellant barefooted before or since.

The dog which followed the trail was shown to have been properly trained and handled. Fox v. State, 156 Ark. 428.

Floyd Ward testified that lie saw appellant at the church the night of the fire, and that appellant ashed him, while thejr were both at church, to assist him in burning the barn. Appellant stated at the time that Wright was talking too much. This remark related to comments Wright was making about a certain burglary which had been recently committed in the neighborhood. This conversation occurred about an hour before the fire, and the church was about a mile and a half from the. barn.

There were certain other circumstances tending, in some degree, to corroborate the testimony recited.

It was the theory of the defense that Floyd Ward had himself burned the barn. But, without setting our-the testimony on that phase of the case, it suffices to say that the truth of this testimony was a question for the jury, and that the testimony recited is legally sufficient to sustain the conviction.

It is asserted that a juror who served at the trial was ineligible to serve for the reason that he had not paid his poll tax. It does not appear, however, that the juror imposed himself on the court and defendant by representing that he had done so, and this question cannot be raised after trial, when the defendant did not avail himself of the opportunity, on the examination of the jurors on their voir dire, to ascertain if they possessed this qualification. James v. State, 68 Ark. 464; Teel v. State, 129 Ark. 180.

. The court gave a very comprehensive charge to the jury, to which no exception appears to have been taken, except to instruction numbered 6, which reads as follows : “The defendant’s plea of not guilty to the charge contained in this indictment carries with it every legal defense which he may seek to. interpose; and the evidence has been introduced on behalf of the defendant for the purpose of establishing an alibi; that is, at the time of the burning of the barn, as alleged in the indictment, he was at some other place, by reason of which it would have been impossible for him to have committed the crime. While the burden of proof is upon the State to establish the guilt of the defendant by the evidence in the case beyond a reasonable doubt, it is incumbent upon the defendant to sustain his alibi by evidence which raises in your mind a reasonable doubt that he was present at the time and place of the alleged commission of the offense.”

The objection to the instruction is that it cast upon the defendant the burden of showing, beyond a reasonable doubt, that he was not present at the time and, place of the commissioh of the crime, before he could be acquitted on his alibi defense.

The instruction told the jury that the burden was on the State to establish the guilt of the accused beyond a reasonable doubt. Th'e instruction also told the jury that the.burden of proving'an alibi was on the defendant, but, while this burden is incumbent on the defendant, it is discharged if such evidence raises a reasonable doubt that the defendant was present at the time and place of the alleged commission of the offense. In other words, the proof of an alibi is an affirmative defense, but it is established and is sufficient to require an acquittal if the evidence tending to establish it raises in the minds of the jury a reasonable doubt that the defendant was present at the time and place of the alleged commission of the offense. The instruction given conformed to the law as announced in the case of Morris v. State, 145 Ark. 241.

No error appears, so the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Kennedy v. Quinn.
    Opinion delivered December 15, 1924.
    1. Wills — evidence of want of testamentary capacity and of undue influence. — Evidence^in a will contest of the want of testamentary capacity of testatrix and of undue influence exerted upon her, held sufficient to go to the jury.
    2. Witnesses — impeachment on cross-examination. — For purposes of impeachment, a witness may be asked- on cross-examination whether he was guilty or convicted of certain crimes, but not whether he had been accused of such crimes or indicted therefor.
    3. .Trial — improper argument. — While a reference in argument to a witness having been accused of train robbery was improper, any prejudice therefrom was removed where the court sustained an objection thereto, and told the jury that the testimony had been excluded, and should not be considered.
    4. Trial — instruction to disregard testimony. — An instruction to disregard testimony that a witness had been -arrested three . times, -admitted without objection, was properly denied where appellant’s counsel asked questions relating to those incidents which elicited answers exculpating the witness
    5. Wills — testator’s declarations. — Declarations of a testatrix made before or after executing a will, are inadmissible as substantive evidence to prove undue influence, but they may be considered to determine her mental capacity at the time of executing the will and to show her feelings, intentions and relations toward her kindred.
    6. Wills — physical condition of testatrix. — Though a person suffering from physical weakness or disease may enjoy full testamentary capacity, the jury may consider evidence showing such condition in determining whether the will was in fact the will of the testatrix.
    7. Wills — instruction as to undue influence. — An instruction that if contestee, by constant importunity, unduly influenced his wife to execute a will in his favor, and, on account of her weakened physical condition, she yielded, the verdict should be for contestants, though not well stated, was not open to a general objection, in view of other instructions, which told the jury that testatrix could make a valid will notwithstanding her weakened physical condition, if she possessed testamentary capacity, and that the will would not be invalid because of undue influence if she understood what she was doing and was not unable, on account of weakened physical condition, to resist influence brought to bear upon her.

      8. Wills — instruction as to undue influence. — An instruction that, if testatrix, in executing her will, did not act intelligently and voluntarily, but was subject to her husband’s will, the verdict should be for contestants, was not open to the objection that the jury might find against the will if testatrix was subject to her husband’s will because of her love for him and desire to benefit him.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is an action by J. W. Quinn, Mrs. S. BLMulkey and Mrs. Mary J. Paschal, to contest the 'will of their sister, Mrs. Sue E. Kennedy, who died at a hospital in the city of Little Rock, following an operation to remove a cystic tumor, on August 27, 1922.
    Mrs. Kennedy was from nine to eleven years older than her husband, H. B. Kennedy, and she was about fifty years old when she was married, and she was about 67 years old at the time of her death. Mrs. Kennedy had suffered from this tumor for several years before her death, and the tumor had grown to be large enough to' contain about two gallons of a fluid, and had attached itself to certain of her' organs, thus showing that her condition was very serious at the time of the operation. She. rallied from the operation, and there was hope of her recovery, but she took a turn for the worse, and, after failing rapidly, died on the fifth day after the operation.
    The bulk of Mrs. Kennedy’s estate is in Mississippi County, but her residence at the time of her death was in White County, and she had been advised by her local physician that her condition required an operation, and she came to Little Rock to have it done, and, while at the hospital, she executed the will involved in this proceeding. Her husband testified that, while his wife was sanguine of her recovery, she decided1 to execute a will, and gave him directions in regard to its provisions, and that, pursuant to these directions, he employed an attorney to prepare it, and he took with him to the hospital two of the employees of the bank where he and his wife carried their bank account, to attest the will as witnesses. These witnesses testified that they went to the hospital, and found Mrs. Kennedy sitting in a chair on the veranda of the hospital. She knew one of them, who had cashed checks for her, spoke to them both, and they told her they had come, at Mr. Kennedy’s request, to witness the will. She expressed satisfaction that they had done so, and stated that she would go to her room and get her glasses. The young men who were present to witness the will offered to perform this service for her, but she declined the service, stating that they would not know where to find the glasses. Upon her return to the veranda, Mrs. Kennedy looked over the will, and one of the witnesses read it to her, and she stated that it , conformed to her wishes and directions, and the will was then signed and witnessed.
    A large number of witnesses, including the surgeon, testified that, in their opinion, Mrs. Kennedy was rational and in full possession of her faculties on the day she signed the will, and it is very earnestly insisted that there was no legal evidence to the contrary. There was testimony to the effect that, as Mrs. Kennedy’s physical ailment developed, she became forgetful and indifferent to her oldest and best friends and nearest relatives, with none of whom had there been estrangement or other apparent cause for her changed attitude, except her ailment, and one witness testified that “her mind had gradually been getting worse for two years or more prior to her death.”
    A hypothetical question, predicated upon testimony adduced by contestants, was submitted to a physician, who answered the question by expressing the opinion that Mrs. Kennedy did not have testamentary capacity at the time she executed the will. The will was executed at the hospital, and, in anticipation of the operation, Mrs. Kennedy’s sisters were present, and there is testimony to the effect that, on the day the will was executed, Mr. Kennedy went down town with his wife’s sisters, and, while they were engaged in doing some shopping for Mrs. Kennedy, Mr. Kennedy caused the will to be executed. It is the theory of the contestants that this was done designedly for the purpose of having the sisters absent when the will was executed. There was certain other testimony tending to show that Mr. Kennedy was mercenary in his dealings with his wife, and that there was no deep affection between him and his wife. The principal testimony tending to show that fact was the admission by Mr. Kennedy that he had caused a will to be prepared about a year previous to the will in issue, the provisions of which were substantially similar to the one in litigation, but she declined to sign that will, and there was other testimony to the effect that Mrs. Kennedy had said she would never execute such a will as long as she was in her “right mind.” This last testimony was objected to.
    On his cross-examination Mr. Kennedy admitted that he had been arrested for reckless driving, and did not deny his guilt. He admitted he had shot a man in Kentucky and had been arrested for so doing, but testified that he had never been indicted for the shooting. He also admitted that he had been arrested in Oklahoma for carnally abusing a girl under the statutory age of consent, but he also testified that -this was a frame-up. These questions were asked without objection, and Kennedy was re-examined by his attorney to some extent in regard to these charges. There was testim.ony that Kennedy had admitted that he had been arrested for participating in a train robbery, but this testimony was excluded on objection being made to it.
    Among other instructions requested by contestee was one that “you will disregard the evidence showing that Mr. Kennedy has been arrested on three occasions,” and an exception was saved to the court’s refusal to give it. ■
    During the argument before the jury, Mr. Brundidge, of counsel for contestants, said that Kennedy had been in jail in Oklahoma on a charge of train robbery and, objection being made to this argument, the court sustained the objection and stated to the jury that this testimony had been excluded, and for the jury to disregard it. Thereupon Mr. Brundidge said that the testimony in regard to the carnal abuse charge had not been withdrawn, and that he- would prefer being in jail on a charge of train robbery, and concluded' this statement by saying, “Now, take that, if you like it any better.” No objection appears to have been made to this last argument.
    Contestee also excepted to certain instructions relating to the issues of testamentary capacity and undue influence which were given over his objection, and also excepted to the court’s refusal to give certain instructions which he requested relating to the same subjects, which will be set out and reviewed in the opinion.

      Frauenthal & Johnson, John E. Miller and J. T. Cos-ton, for appellant.
    The evidence was insufficient to sustain the verdict. The law only requires that a testator’s memory be sufficient to recollect what property she owns, without prompting, and comprehend to whom she is giving it. 66 Ark. 628.' A verdict so palpably against the weight of the evidence as to shock the sense of justice and right will be set aside. 70 Ark. 385. Appellant’s request for instruction No. 17 should have been granted. It sought to limit the declaration by the testatrix before signing the will to the issue of mental capacity, as they were wholly incompetent on the question of undue influence. 122 Ark. 407; 180 U.' S. 572; Wigmófe on Ev., vol. 1, p. 42; 75 Ark. 232; 99 Mich. 250; 84 Me. 436; 117 N. C. 558; 79 N. C. 467; 33 Ala. 190; 42 Ala. 106; 38 Mont. 451; 158 Calif. 650. There was no evidence of undue influence, and the court erred in submitting that issue to the jury. 154 Ark. 523. Instruction No. 7 was erroneous, as it authorized a finding against the will if the testator, oh account‘of her weakened physical condition, yielded to his request and executed the same, which is not the test of undue influence. 1 Underhill on Wills, § 138; 114 Mo. 35; 136 N. Y. 515. It is not unlawful to procure a will in one’s favor iby fair persuasion and kind offices. 13 Ark. 475; 19 Ark. 551; 49 Ark. 371. A failure to act “ intelligently,” wisely, judiciously or justly is not sufficient to vitiate a will. 87 Ark. 243; Underhill on the Law of Wills, pp. 145-147; 28 R. O. L. § 103. Kennedy could not get a fair trial after the improper remarks of counsel for appellees. A new trial should he granted. 70 Ark. 305; 74 Ark. 210; 11 Texas Ct. of Appeals, 378. Instruction No. 16, which went to the character of appellant, should have been given. 20 Tex. Ct. of Appeals, 271. Improper evidence cannot always be removed by admonition of- the court not to consider it, in which case a reversal should be had. 100 Ark. 107; 19 N. Y. 302.

      8am Costen, Wils Davis, and Brundidge £ Neelly, for appellee.
    A verdict will be sustained if there is any substantial evidence to support it. 122 Ark. 407; 127 Ark. 68. Where both undue influence and mental capacity are in issue, a verdict will be sustained if either is proved, although the evidence might not be sufficient on the other proposition. 147 Iowa 725; Pritchard on Wills, 136; 96'Am. Dec. 697. A wide latitude is permitted as to admissible evidence on the issues of unsound mind and undue influence, and indirect evidence as to facts from which the jury might infer either is sufficient. 197 Mo. 68; Pac. 634; Pritchard on Wills, 155; ’28 R. C. L. 93; 195 Mich. 432; 87 Ark. 243; 29 Ark. 151; 154 Ark. 516; 49 Ore. 367; 227 111. 183; 28 R. C. L. 143. The question of undue influence is submitted to the jury more readily when the testator is mentally weak. 115 P'enn. St. 32; 3 Strobhart (S. C.), 44, 87 Ark. 148. On the question of unsound mind it is competent to prove a previously expressed purpose contrary to the terms of the will. 74 Ark. 212. Participation of beneficiary in making of will is a circumstance to be considered. 28 R. C. L. p. 145; 28 L. R. A. (N. S.) 273. The rule obtains in this State that declarations of a testator made prior to the execution of the will are admissible for the purpose of showing whether the testator was sane or insane, but they are not admissible for the purpose of establishing the substantive fact of undue influence. 122 Ark. 407. Instruction No. 17 did not correctly state the law. 115 Tenn. 91. See also 96 Tenn. 89; 122 Penn. St. 239; 3 Jones on Evidence, 353; 5 Ann. Cas. 608; 28 K. C. L. 151; 35 L. K. A. 102. Even conceding that No. 17 was a correct instruction, it was covered by other instructions given. 132 Ark. 449; 133 Ark. 448. The argument of counsel for appellee was not prejudicial, and the cases cited by him are not in point.
   Smith, J.,

(after stating the facts). The jury found against the will, and the contestee insists that there was no testimony legally sufficient to support that finding. We think, however, that there was enough testimony to warrant the submission of the issues of lack of testamentary capacity and of undue influence to the jury, and, this being true, we do not stop to consider what the preponderance of the testimony shows.

■ We do not think any error was committed in refusing to give the instruction directing the jury to disregard the testimony showing that Mr. Kennedy had been arrested on three occasions. This testimony was admitted without objection, and counsel for contestee asked questions relating to those incidents, which elicited answers exculpating Mr. Kennedy. There appears to have been no denial that Kennedy was guilty of speeding, and, while this does not appear to involve moral turpitude which would tend materially to impair the credit of the witnesses, we cannot say that the jury should have been told to disregard it, especially as the testimony had been admitted without objection. We do not understand that Mr. Kennedy denied having shot a man in Kentucky, and this was not therefore a mere accusation agninst him, although he was not indicted. The charge against Kennedy in regard to having carnally abused a child appears to have been a mere accusation, and, had the request to exclude been limited to it, the court should have excluded that testimony.

We have frequently, and recently decided that a witness cannot be interrogated on his cross-examination for purpose of impeachment concerning indictments or mere accusations of crime. He may be asked if he was guilty or was convicted, but he cannot be asked if he was indicted or accused. Johnson v. State, 161 Ark. 111; Jordan v. State, 165 Ark. 506; Parnell v. State, 163 Ark. 316.

But, as we have said, the instruction was not asked until after this testimony had been admitted without objection, and the request, as made, included not only the mere, accusation of having carnally abused the child, but included also the admitted acts of speeding and of having shot a man.

The reference in the argument to appellant having been accused of train robbery was, of course, improper; but the court sustained the objection thereto, and told the jury that this testimony had been excluded and should not be considered, and we think this admonition removed any prejudice resulting therefrom.

We are also of the opinion that the argument of counsel that appellant had committed the offense of carnal abuse was improper; but no objection appears to have been made to it.

Contestee asked an instruction numbered 17, reading as follows: “The evidence of statements and declarations on the part of Sue E. Kennedy of her intention to make a will or not make it, disposing of her property in a certain way, can be considered by you for the purpose only of determining whether she was sane or insane at the time she signed the will.”

This instruction obviously related to the testimony that Kennedy had caused a will, similar in its provisions, in that he was made the chief beneficiary, to be prepared, and that his wife had refused to sign it, and had stated that she would never sign such a will so long as she was in her “right mind.”

It is conceded that this testimony was competent on the issue of lack of testamentary capacity on the part of the testatrix, and it is insisted that the instruction was asked for the purpose of excluding the. testimony from the consideration of the jury when they came to the question of undue influence, and it is urged that the instruction should have been given upon the authority of the case of Mason v. Bowen, 122 Ark. 407, where we said: “It seems to be well settled, both by text-writers and the decisions of courts of the various States, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, statements or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external fact, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.”

In so announcing the law, we quoted the decision of the Supreme Court of Tennessee in the case of Hobson v. Moorman, 115 Tenn. 73, which case is annotated in 5 Am. & Eng. Ann. Cas. 601, and 3 L. R. A. (N. S.) 749.

This case, as we said in Mason v. Bowen, supra, was a well considered case, and, by approving and following it, we are committed to the doctrine that the statements and declarations of a testator, whether made before or after the execution of the will, are not competent as direct or substantive evidence of undue influence, and counsel insist that the purpose and effect of the refused instruction was to apply that doctrine to the facts of this case.

But the instruction was not so worded. It did not tell the jury that the testimony of Mrs. Kennedy in regard to the disposition of her estate could not be considered on the question of undue influence. It stated that this testimony could1 be considered for the purpose only .of .determining whether Mrs. Kennedy was sane or-insane .'at the time she signed the will. The case of Hobson v. Moorman, which we followed in Mason v. Bowen, does not thus limit the testimony. Mr. Justice McAlister, who delivered the opinion of the court in that case, there said: “In our opinion, the great weight of authority confirms the rule, announced by the circuit judge in his instructions to the jury, that such previous declarations (indicating the disposition which the testator intended to make of his estate) are always admissible for the purpose of illustrating the mental' capacity of the testator and his susceptibility to extraneous influence, and also to show his feelings, intentions-, and relations to his kindred and friends; but such declarations are not admissible as substantive evidence of undue influence.”

Had the requested instruction been given, the jury would have had no right to consider the declarations of Mrs. Kennedy for the'purpose of showing her feelings towards the parties to this litigation, and. the evidence was competent for that purpose, although it was not admissible as substantive evidence of undue influence.

The court gave, over contestee’s objection, an instruction numbered 7, reading as follows:' “The jury, are instructed that, if you find from the testimony in this case that the defendant, H. B. Kennedy, unduly influenced' the deceased, Sue Kennedy, to execute the alleged will in his favor, by constant' entreaty, importunity or persuasion, and that, on account of her weakened1 physical condition, she yielded to his request and executed, the same, then your verdict will -be for the plaintiffs.”

The objection to this instruction is that it rendered ' the will inyalid on account of Mrs. Kennedy’s weakened physical condition if, while she was in such condition, Kennedy exercised influence on her which induced the execution of the will. It is, of course, the law that a person’ may enjoy full testamentary capacity although he is suffering from extreme physical weakness or from the violence of disease; but the jury may 'consider the evidence showing the physical condition of the testator in determining whether a will executed under those circumstances was in fact the will of the testator. The instruction does not direct the jury to find for contestants because an influence was exercised on Mrs. Kennedy while she was in a weakened physical condition, but to do so if she was unduly influenced while in that condition, and other instructions defined undue influence in accordance with the decisions of this court on that subject as announced in McCulloch v. Campbell, 49. Ark. 367.

■ We understand the instruction.to.'mean that, if the jury should-find that if Mrs.’ Kefinedy was induced by constant entreaty, importunity or persuasion to execute the will, and'that she was'unable, because of her physical condition, to resist this entreaty, importunity or persuasion, when she would not have yielded otherwise, that ah undue influence had bben exercised, and, as thus interpreted, the instruction is 'the law. The instruction might more accurately have expressed this idea, but there was no specific objection to it, and, as we have said, other instructions given on behalf of contestee made it plain to the jury that Mrs. Kennedy could make a valid will notwithstanding her weakened'physical condition, if she possessed testamentary capacity, and that the will would not be invalid because of undue influence on account of Kennedy’s'conversations with his wife on that subject, if she knew and understood what she was doing, and had not been induced so to do because she was unable, on account of weakened physical condition, to resist influences brought to bear upon her whereby she executed a will which she would not otherwise have made.

The court gave, over contestee’s objection, an instruction numbered 5, reading as follows: “The jury are instructed that, if you find from the testimony in this case that the testator, in the execution of the will, did not act intelligently or voluntarily and as a free agent, but was subject to the will and purpose of the defendant, H, B. Kennedy, then your verdict will be for the plaintiffs and against the will.”

The objection to this instruction is that it leaves out of account any consideration of the question of undue influence, and that, under this instruction, the jury would! have to find against the will, although the jury might believe that Mrs. Kennedy was subject to the will of her husband because of her love for him and her desire to benefit him. ¡We do not think the instruction is open to this objection. The jury was not instructed to find against the will upon the mere finding that Mrs. Kennedy had become subject to the will and purpose of her husband, but to do so if they found that she did not act intelligently or voluntarily and as a free agent. The influence would be an improper one if it deprived the testator of the capacity to act intelligently or voluntarily and as a free agent, and we think no error was committed in giving the instruction.

Certain other questions are raised which we do not think require discussion, and, as we find no prejudicial error, the judgment is affirmed.


author: 'Wood, J.

text:
    Dunn v. Turner Hardware Company.
    Opinion delivered December 1, 1924.
    1. Landlord and tenant — burden op proof. — In an action of unlawful detainer, where the answer of the lessee alleged that the • term of his lease was five years, the burden of proving it was on him. .
    2. Landlord and tenant — sufficiency of proof of lease. — In .an action for unlawful detainer, defendant’s evidence held insufficient’ to prove an oral lease for five years. '. '
    3. Frauds, statute-of — sufficiency of plea. — Where an answer in unlawful detainer- set up an oral lease for five years, and alleged . that plaintiff had leased the premises to a third. person before expiration of defendant’s lease, to defendant’s damage in the sum of $500, plaintiff’s reply, setting up the statute of frauds, was justified under Crawford & Moses’’ Dig., § 1205.

      4. Appeal and error — harmless error. — Where a lessor clearly shows the rental value of his property to be that ordered to be paid to him by the decree, the lessee is not prejudiced because the court misnamed the award as “damage,” instead of rents.
    Appeal from Columbia Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.

      Joe Joiner, for appellant.
    If a reply was a proper pleading in this case, it could not properly be introduced after once having been stricken out; but a reply was not proper. The answer contained no counterclaim or set-off. C. & M. Digest, ■ § 1205. The appellant therefore did not plead the statute of frauds, which, to-be available, must be pleaded. 71 Ark. 302; 96 Ark. 505. See also 92 Ark. 392; 96 Ark. 184, 131 S. W. 460; 232 S. W. 590 (Ark.); 133 N. E. 56 (111.). The statute, C. & M. Digest, § 4853, designates . two items, damages and rents, for which judgment may be rendered against the defendant in an unlawful detainer suit; but here there was neither allegation nor proof of damages. The court therefore erred in adjudging damages against the defendant. If the -plaintiff was entitled to rents, he should have been held to prove the reasonable market value of the lease during the time the building was occupied by the defendant. 110 Ark. 504; 102 Ark. 108; 75 Ark-. 589.
    • McKay & Smith, for appellee.
    An oral contract entered into between the parties for the lease of the building for a period of five years was within the statute of frauds, and void. In order to take the case out of the statute of frauds, appellant must have shown _ that he made valuable improvements on the building, dr made substantial expenditures in the way of performance of the contract, independently of mere occupancy; and such expenditures imist'have been for permanent repairs which were contemplated by the terms of the contract between the parties. 137 Ark. 466; 117 Airk. 500; 112 Ark. 562 ; 55 Ark. 294 ; 79 Ark. 100; '81 Ark, 70; 91 Ark. 280.

      - 2. It was. immaterial that the chancery court, in giving judgment against the appellant, used the term 'damages instead of rents, since the uncontroverted evidence shows the rental value of the premises to be greater than the amount adjudged.
    3. Not only should the decree be affirmed, but, in addition, the case being.heard here de novo, appellee should have judgment here for double the rental value of ’the ■ property since August, 1923. C. & M. Digest, § ,6557; 74 Ark. 12
   'Wood, J.

This is an action by the Tiirner Hardware Company, a corporation, hereafter called apxjellee, against G-. A. Dunn, hereafter called appellant. The action was begun at law in unlawful detainer to recover the possession of a portion of a brick building in the town of Magnolia. Appellee alleged that it was the owner of the building, and had rented a portion thereof to the appellant for a period of one year; that appellant’s lease expired the first of January, 1922, and that appellant, after having leg’al notice to quit, had refused to deliver possession to the appellee; that, on account of the unlawful detention, appellee had been damaged in the sum of $1,500. Appellee prayed judgment for possession and damages.

The appellant, in his answer, admitted that the appellee is the owner of the building and that appellant had rented a portion thereof from the appellee, but denied that his lease expired January 1,1922, and denied ihat he wilfully and without right detained the possession thereof. He alleged that he rented the building from the appellee in August, 1918, for a period of five years, under a contract that appellee would build the building to suit the needs of the appellant; that, in pursuance of the contract, appellant went into possession, and had performed his contract by paying all the rents due thereunder; that appellant had made certain improvements and arranged fixtures therein to suit his business, on. the faith that he would'be allowed to keep the building for a period of five years. .Appellant 'specified in his answer the kind of-improvements that he placed in the building, which he alleged were fixtures and were installed at a great expense; that, if the appellant were denied the use of the building and forced to remove the fixtures, he would be damaged to the extent of the cost of these fixtures; that, since entering into the contract, the appellee had rented the building to another, party, which fact had been made known through the public press, and damaged his business in the sum of at least $500. The appellant prayed that he be awarded the use of the premises for the remainder of his lease and that he have damages against the appellee in the sum of $500.

The appellee filed’a pleading designated “Reply to the answer,” in which he denied the allegations of the answer, and set up, among other things, that, if there was any contract between the appellee and the appellant for the lease of the building for five years, as alleged in the answer, the same was within the statute of frauds. The appellant thereupon moved to transfer the cause to the chancery court, and the cause was transferred to the chancery court. The amended answer set out above was thereafter filed, and time was given.to take depositions. A motion was made thereafter to strike the reply to the answer from the files, which motion was sustained. On May 23, 1923, an adjourned day of the April term of the chancery court, the defendant filed his depositions*-,and also moved to quash the depositions that had been filed by the appellee. This motion to quash the depositions of the appellee was overruled on this day, and the appellant was then allowed ten days in which to take depositions, and the appellee given five days thereafter to take-depositions in rebuttal. ' ■

On July 24, 1923, the same being the second day of the regular July term, appellee filed what it‘designated-“Amendment to complaint and reply to answer;’-’ in which1 it set up that, “ifThere is any contract betweefbtheíplain- «= tiff and the defendant for the lease of this buiíding, said - ■ contract is verbal ánd not in writing, and-is-therefore void by reason of the statute of frauds.” The appellant moved, to strike this pleading from the files, and the court overruled the motion. The cause was then heard by the chancery court upon the pleadings, their exhibits, and the depositions of the witnesses. The court -found, among other things: “First, that, if there was an oral contract entered into between the plaintiff and the defendant for-the lease of said /building for a period of five years, it is void on account of the statute of frauds; second, that the burden of proof is upon the defendant to show by a preponderance of the testimony that he entered into said oral contract for the lease of said building for a period of five years; and that the defendant has failed to sustain said burden; third, that the plaintiff is entitled to possession of said building, and was at the time of the bringing of the suit, and that it has sustained damages on account of the detention of same by the defendant in the sum of $1,000.”

The court thereupon entered a decree in favor of the appellee against the appellant for the possession of the building, and also a judgment against the appellant and his bondsmen in the sum of $1,000 damages, with interest at the rate of six per cent, from the date of the decree. From that decree is this appeal.

1. The secretary and treasurer of the appellee, and also its vice president, testified to the effect that the appellee never entered into any contract with the appellant for the lease of this building for five years. The secretary and treasurer, who represented the corporation in negotiations, testified that appellee rented the building to appellant for a year. The testimony of the witnesses for the appellee was to the effect that they never heard of any five-year contract’until the first of January, 1922, when they went to appellant to ascertain whether he was going to deliver possession of the building to them. One of the witnesses testified that, on the first of August, 1921, he went to appellant and asked him if he wanted the building for -the year 1922, and told appellant that witness had an opportunity to lease it if appellant did not want it, and appellant told witness to go ahead and lease it — that he conld not use it.

' The secretary-treasurer also told appellant that he (appellant) could lease the building from the first day of .September, 1921, to the first day of January, 1923, and left it optional with appellant as to whether he would lease it from the first of September, 1921, or the first of January, 1922, and appellant told the witness to lease it from the first of January, 1922. After this conversation, witness entered into a contract with one Mitchell for the building for the year 1922, relying on appellant’s statement that he didn’t want it and would not use it. After witness had leased the building to Mitchell, he told appellant about it; that he had leased the building to Mitchell at $50 per month for the year 1922, and appellant replied that it was perfectly all right; that he was glad witness could get that for it, because it was more than he (appellant) could pay.

The vice president of appellee testified, corroborating the testimony of the secretary to the effect that he and the secretary had a conversation with the appellant in the fall of 1921, at the time they made the contráet with Mitchell, and appellant stated that he didn’t-blame the witnesses for renting the building if they could get a higher rent; that he'could not pay as much as $50 per month, the sum that Mitchell had agreed to pay.

On the contrary, the testimony of 'the appellant was to the effect that he rented the building in the pear Í918 for a period of five years at $35 per month. He first talked to the president of appellee ’ in regard to the dimensions of the building, and then to the secretary. They would not agree to make the building as long as appellant wanted, but did agree to make if 40x50'feet, and, under that contract, appellant went into possession of the building, and went to an expense of $500 in putting in an ice-box and other fixtures to' the amount of about $300, amounting in all to about $800; that he had entered into possession of the building on August 26. 1918, and had paid his rents' regularly. Appellant denied that he told the secretary of appellee that he did not want the building for five years. He didn’t know they were trying to lease the building. The secretary and he were always joking, and the secretary was always telling the appellant that he was going to be put out. ■ Appellant did not take this seriously, and did not agree to vacate January 1,1922. He heard the building was leased to one Mitchell, but the officers of the appellee never told him so, and he paid no attention to the idle gossip. There was never anything said by the officers of the appellee to lead witness to believe that he had the building for five years. Appellant paid his rents to January 1, 1922, and offered to pay his rent in, February and March of that year, but appellee refused to accent same.

On cross-examination appellant stated that the secretary of appellee went through the store and said, “I have leased this building for $50,” and witness said, “That is all right,” and witness didn’t know until some time later that he meant it. Appellant was asked: “When Mr. Colquitt first mentioned it to you, in the summer or fall of the year 1921,1 believe, you say you told,him that you didn’t know whether you would want it for another year or not? A. I told him I didn’t know what I would do another year. Q. He told you that he wanted to know what you were going to do about the building for another year? A. I told him that I didn’t know what I would be doing next year.' Q. When he told you that he had a chance to rent it you told him that you did not know whether or not you would want it for another year? A. I told him I did not know what I would- do — I might be in Halifax, or dead.”

The appellant admitted that he was in possession of the building under a lease contract, but alleged that it was a contract .-for five'years. The court therefore correctly found that the burden as to whether the Contract was one for five years’ was upon the appellant. It occurs to us that the finding of the chancellor thatfffie appellant had failed to 'sustain this burden is correct. There is á decided conflict in the evidence, as is shown, by the above,, but certainly it cannot be 'said that the appellant had proved the contract as alleged, even if the statute of frauds was not properly pleaded.

2. We are convinced, from the .record entries as above set forth, that the statute of frauds was properly pleaded. Appellant, in his amended answer, set up that the appellee, before the expiration of the lease contract with appellant, had entered into a lease of the building to one Mitchell, for the purpose of conducting a grocery store therein, which lease contract with Mitchell had damaged the appellant in the sum of $500, for which damage he prayed judgment. This pleading was in the nature of a counterclaim against the appellee, and justified it in filing a reply thereto under § 1205, Crawford & Moses’ Digest.

The contention of the appellant that the statute of frauds was not pleaded by the appellee cannot be sustained. At the time this last pleading was filed by the appellee the cause had been transferred to the chancery court, and the court correctly overruled appellant’s motion to strike the same from the- files. Since the defense of the statute of frauds therefore was not waived by the appellee, the appellant cannot sustain his contention that there was an oral lease for five years unless he proved by a preponderance of the evidence facts which prevented the operation of the statute of frauds. While the appellant testified that he madé certain improvements — that he built on to a portion that was already there, and fixed it with lattice work, and put in an ice-box, a platform in the rear on top of the partition, a cement block for his motor, a window display, and ventilators in front of the building, and power line to drive the motor — yet this testimony does not show that these were in the nature of permanent fixtures to the freehold. His testimony only shows that these improvements were made by him to conserve his own' business interests. They were made for his own convenience and profit, and not to add any permanent value to the freehold. At least his testimony does not tend to prove- that thése improvements were contemplated by the terms of the contract between himself and the appellee. We find nothing in the testimony to take the case out of the operation of the statute of frauds. Mere occupancy of. the land and the payment of the rent for the period occupied were not sufficient. Reichardt v. Howe, 91 Ark. 280; Phillips v. Grubbs, 112 Ark. 562; Storthz v. Watts, 117 Ark. 500; Garner v. Stanley, 137 Ark. 446.

3. The uncontradicted evidence is that appellee was deprived of possession of its building. As we have seen, a preponderance of the evidence shows that the appellant’s lease expired January 1,1922. Appellant retained possession of the .property from that time, on till the trial of the cause, July 24, 1923. Thus appellee was deprived by appellant of the possession of its property for a period of one year and nearly seven months. Appellee had rented the building to Mitchell for the year 1922 at $50 per month, and there was evidence that the building could have been rented in 1923 for $60 per month, and that, at the time of the trial, the building had a rental value of $75 per month. The court entered a decree awarding the appellee possession and damages in the sum of $1,000. The 'appellant contends that a decree for damages is without evidence to sustain it; that the appéllee failed to prove the market value of the lease; but we cannot agree with the appellant in this contention. The testimony above set forth does tend to prove that appellee’s land had rental value during the time occupied by appellant of at least $1,000, and that appellant, in unlawfully withholding the lands from appellee and thus depriving it of the rents it would have obtained for the land, damaged appellee to the amount of thesé rents. It is wholly immaterial that the trial court, through a misnomer, designated the amount appellee was entitled to recover as “damages” instead of “rents.” Appellee was entitled to recover of appellant, as the rental value of the lease, the sum of $1,000, and appellant is not prejudiced because the court designated this amount as “damages” instead of “rents.” The consequence to appellant is the same.

4. Appellee contends, on affirmance of the decree, that it is entitled to judgment against the appellant and his bondsmen in the sum of double the yearly rental value of the lands since the rendition of the decree, under § 6557, Crawford & Moses’ Digest; but the facts of this record do not bring it within the provisions of that section.

The decree is in all things correct, and is therefore affirmed.


author: Humphreys, J.

text:
    Williams v. Road Improvement District No. 1.
    Opinion delivered December 1, 1924.
    1. Equity — sufficiency of evidence to sustain decree. — In a suit to review a decree in a suit by a contractor against a road improvement district, evidence held to sustain finding that the decree was the result of collusion.
    2. Equity — decree obtained by collusion. — Where new road district commissioners did not know of a settlement between former commissioners and the contractor constituting a complete defense to .a suit by the contractor against the district, and had no opportunity to present it when the cause was heard before the chancellor in vacation a few days after their appointment, a decree against the road district obtained by collusion between the contractor and the former commissioners was properly set aside.
    Appeal from Perry Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      G. B. Colvin, for appellant.
    1. If the finding, viz., that “the commissioners entered' into collusion with said G. B. Williams in obtaining said decree,” is supported by a preponderance of the evidence, that in itself would not be ground for setting aside the judgment, unless a valid defense is alleged and proved. C. & M. Digest, § 6292; 120 Ark, 255; 108 Ark. 415.

      2. If the second finding, viz., that “there was in fact. compromise and settlement had between the district and G. C. Williams,” is also supported by a preponderance of the evidence, that would-be ground for setting aside the judgment only in the event such compromise and settlement included all of the matters upon which the original suit was founded and judgment obtained. There are certain elementary rules governing compromise and. settlement, without which it cannot be had. 12 C. J., p. 316, § 6; Id. p. 317, § 9; Id. p. 321, § 14; Id. p. 339, § 33; Id. p. 341, § 36. A compromise agreement is conclusive only as to those matters which the parties have fairly intended to include within its terms, and the necessary consequences thereof. Fraud will not be presumed, and, in order to entitle the complaining party to relief, the proof thereof must be clear and satisfactory, and that means something more than a mere preponderance. 92 Ark. 509. The fraud must consist in the procurement of the judgment, and not in the original cause of action. 75 Ark. 415; 124 Ark. '278; 133 Ark. 97. A judgment will.not be set aside for defendant’s own lack of diligence. 93 Ark. 462; 122 Ark. 74; 114 Ark. 493.

      J. II. Bowen and Edward Gordon, for appellee.
    There can be no doubt, after referring to the testimony of Williams himself and to the facts and circumstances in evidence, that the old commissioners entered into collusion with appellant to defraud the district; and there can be no doubt that the commissioners and their attorney collusively declined or-failed to take testimony or present the defense of the district, notwithstanding they knew the district had a valid defense. C. & M. Digest, § 6290; 15 E. C. L. 706, § 158. A judgment collusively obtained'can be set aside at the instance of the defrauded party, even in a collateral proceeding. 65 Ark. 566; 128 A)rk.'59; 25 Ark. 556-57-58,
   Humphreys, J.

This is an appeal from a decree. rendered in a case wherein appellant, G. C, Williams, was plaintiff, and appellee, Eoad Improvement District No. 1 of Perry County, Arkansas, was defendant, setting aside a vacation decree of date March 25, 1921, in favor of appellant against appellee, for $20,618.82, which was entered mono pro tunc on the 21st day of September, 1922. The vacation decree was rendered by Chancellor Jordan Sellers, pursuant to an agreement between the parties to the effect that he might hear and decide the case at chambers, in Morrilton, and send the decree to the chancery court of Perry County for entry in a blank space left on the record for that purpose. A few days before he heard the case, the General Assembly of Arkansas removed the old commissioners of the appellee district and appointed three new ones in their place. The new commissioners made an attempt to postpone the hearing at chambers in Morrilton, but without avail. Immediately upon their appointment they discharged the attorneys who had been representing appellee, under employment by the old commissioners. After failing to procure a postponement. of the case, they retired, and did not participate thereafter in the hearing. The chancellor tried the case, in their absence, upon the pleadings and proof brought before him, and rendered a decree for the sum aforesaid in favor of appellant against appellee, but did not reduce the decree to writing until July 1, 1921. In the meantime, and before reducing the decree to writing, the chancellor resigned, and moved to El Dorado. On July 1, 1921, he mailed the decree from El Dorado to the chancery clerk of Perry County, with instructions to file same with the papers in the case, objection having been made by the new commissioners to the entry of the decree. The suit in which said decree was rendered grew out of a contract between appellant and appellee for constructing a highway about twenty-six miles long- The money of the district gave out before the road was completed, and the old commissioners were unable to proceed with the work unless Federal or State aid could be obtained, which was doubtful’. ' At the time the-nfoiiey gave out and the work ceased, the contractor, anpellant herein, had considerable material on the ground, and had sublet the ungraded portion, of the road to responsible subcontractors at a profit. Being confronted by this situation, the old commissioners arid the contractor had several meetings for the purpose of adjusting matters between them. At a meeting on August 11, ly20, the contractor made a proposal to the old commissioners, in the form of a letter, which was incorporated in the minutes of the meeting, The minutes of the meeting, including the letter, are as follows:

“Minutes of meeting of Road Improvement District No. 1, held in the office of J. T. Chafin, at Perry, Arkansas, August 11,1920. Commissioners present, D. M. Wallace, A. F. Leigh and J. T. Chafin. Attorneys, G-. B. Colvin, J. H. Bowen and J. L. Hill. Contractors, (1. C. Williams and R. L. Gastor.
“The commissioners had convened at the call of the chairman for the purpose of settling with contractors. After considerable discussion the following agreement was reached with Mr. Williams, general contractor:
“ ‘Perry, Ark., Aug. 11, 1920.
. “ ‘Commissioners of Road Improvement District Nó. 1, Perry, Arkansas:
“ ‘Gentlemen: In closing my. contract with you I hereby ag'ree that you may take over the following materials now on hand, at prices stipulated herein, crediting me with the amount of same when same is ascertained by estimate of the engineers:
Sand........................................................................$10.00 per yard
Crushed rock................................................... 6.25 per yard
Cement.................................................................. 5.60 per bbl.
Damage to lumber....................................290.00
Steel at invoice 'price. ' .
“ ‘Pinal estimate to be furnished at once by all parties, including myself.
“ ‘As soon as my final- estimate is made up and agreed upon, as partial settlement of same, I hereby " agree to accept valid certificates of indebtedness of the district, not to exceed $3,000, drawing 6 per cent, interest, balance to be paid in cash.
“ ‘Very truly yours,
“ ‘ ('Signed.) G. '0. Williams/.
“The following resolution was offered by J. T. Chafin:
“ ‘Resolution: Whereas, the district has on hand culvert material that will not be used by reason of the fact that the road building cannot be continued, .and whereas, it is advisable to sell said culvert in order to raise funds with which to pay obligations of the district already incurred.
“ ‘Therefore be it resolved, that said culvert material be sold to R. L. Gastor at the present market price, as submitted by Dixie Culvert Company, said price to be f. o. b. Beebe, Arkansas, freight and loading charges to be deducted. That said R. L. Gastor be and he is hereby authorized to load said culverts and invoice same under directions of the engineers of the district. Terms of sale, net cash, 30 days.
“ ‘Be it further resolved, that the reenforced steel unused and belonging to the district be sold to R. L. Gastor at $4.25 per 100 lb. at Perry. Terms, net cash/
“On motion of A. P. Leigh, seconded by j. T. Chafin, the above resolution was adopted.
“The engineers were instructed to make a final account of all material on hand, and render a final estimate at the earliest possible date.
“(Signed) D. M. Wallace, Chr.
“ J. T. Chapin, 'Secy.
“A. F. Leigh.”

Pursuant to and in accordance with the minutes aforesaid, the resident engineer, J. C. Spotts, as representative of the district, and Parkes Engineering Company, who was the engineer for the district, made a final estimate, showing the amount due from’ the district to the contractor. This estimate was the eleventh estimate which had been made during the progress of the work, and bore that number. In making up the estimate the engineer allowed the district $3,100 ont of retained percentage, which amount the district would have to expend in completing certain portions of the road which the contractor had only partially finished. The contractor objected to this deduction, but payments were made and received after that time upon the estimate.

The minutes of the meeting of the board on August 16, 1920, reflected that the contractor demanded part payment on estimate No. 11, rendered by Parkes Engineering Company, and that the board ordered $2,000 paid thereon. •

The minutes of October 11, 1920, reflected that the contractor made a proposition to the board to accept $8,000, in addition to the balance due him on estimate No. 11, in full payment of his claim for damages, which was refused by the board. The addendum to the minutes of that meeting is as follows :

“It appears that there is still due contractor G. C. Williams, on. estimate No. 11, the sum of $3,416.27, and that there is cash on hand amounting to approximately $1,500; motion is made, seconded and passed that the sum of $1,000 be paid contractor Williams on said estimate, and that warrants be drawn in his favor on the Perry-State Bank for said sum.
“D. M. Wallace,
“A. P. Leigh.”

This payment was accepted 'by the contractor, which left a balance due him on final estimate No. 11 of $2,416.

Shortly after receiving this payment, he brought the suit heretofore mentioned against the district, in the circuit court of Perry County, for $21,913.87, in which he obtained the vacation decree for $20,618.82, and which was entered mmcpro im by Chancellor Atkinson, the succéssor of Chancellor Sellers.

Prior to the entry of the mmc pro tune decree, the new commissioner's' for the district employed Edward Gordon to represent'it. Mr. Gordon'madd'nm effort to '■procure court files and napers in the suit brought by the contractor against the district, for the purpose of appealing the case to .the Supreme Court, and to use in an attempt to prevent the mmc pro tunc entry. He finally located the papers in the possession of appellant, who refused to deliver them to him unless his client would consent for the clerk to enter the vacation decree rendered by Chancellor Sellers. Immediately after the entry of the nunc pro tunc decree, appellee filed this suit against appellant, which was denominated “a bill of ■review and general bill in the way of a bill of review and motion for new trial. ’ ’ The gist of this bill, as amended, was a charge by appellee that appellant and the old commissioners of appellee district entered into a collusion in obtaining the decree against the district in his favor, growing out of said contract, which suit and decree amounted to a fraud upon the taxpayers of the district. It is alleged in the bill that, prior to the institution of the suit by appellant against appellee in which the vacation decree was obtained, there had been a full and complete compromise and settlement between the parties thereto of all matters growing out of the contract to construct a highway. The bill contained other allegations which it is unnecessary to set out.

Appellant filed an answer denying the material allegations of the bill. Thereafter, and on the 13th day of June, 1923, by agreement of the parties, the question of reopening the cause or setting aside the decree, and the amount due the contractor, was submitted to the court on all the pleadings and evidence which could be obtained in the original suit, in the application for the mmc nro tunc decree, and such testimony as each party might introduce responsive to the issues presented by the bill of review and the answer thereto.

The following findings of fact appear in the body of the decree from which is this appeal:

“The court, after hearing the evidence and being well and sufficiently advised, doth find that the proof shows that no defense was made by the road district at the time said cause was submitted to the chancellor.'
. ‘ ‘ That no evidence was taken to be presented on behalf of the district, and that, according to the testimony, the commissioners ■ entered into collusion with said (i. (J. Williams in obtaining said decree, and that same is in fact a fraud upon the taxpayers of the district, and should therefore be set aside.
“And the court further finds that there was in fact compromise and settlement-had between the district and said G-. C. Williams, based upon the final estimate No. 11 as made and presented by the engineer of the district, and that the district is only due the said Gr. C. Williams the sum of '$2,116 on .said final estimate and compromise settlement, together with six per cent.'interest thereon from the date of said final estimate until paid. And that the said G-. -C. Williams is entitled to judgment against the district for said amount. ’ ’

After a very careful reading of the testimony we are convinced that the findings of fact by the chancellor are supported by a preponderance thereof. .Both engineers, W. J. Parkes and J. C. Spotts, and M. D. Wallace, one of the old commissioners, testified in effect that the settlement was a full and complete compromise of all matters in dispute between the - contractor and district. J. C. ■Spotts, who made estimate No. 11, incorporated language therein to that effect. The language of the letter from the contractor to the district* embraced in the minutes of August 11, 1920, so indicates.

Two witnesses, J.- T. Chafin, who was one of the commissioners, and G-. B. Colvin, 'one of the attorneys for the - district, testified that the settlement only embraced such-matters as were specifically mentioned therein, but we are unable to say that their-testimony is of greater weight than the testimony of the other witnesses, assisted by the letter of the contractor.

The new commissioners did not know of this settlement, which was a complete defense to the suit by the 'contractor, arid had no opportunity to present it as a defense when the cause was heard before Chancellor Sellers in vacation. It is quite apparent, from'appellant’s own statement, and especially that part of it when on cross-examination, that he had an arrangement with some of the old commissioners by which no real defense would 'be made against his proposed suit for damages. The following questions and answers indicate it;

“Q. When was it that you had the agreement with the commissioners that you would just have a friendly suit, and that they would not interpose any defense in chancery court to your suit? A. I did not say they did not interpose any defense. I said we would not take any depositions, just lay it before the court. Q. Did they agree upon the amount you should sue for? A. No. Q. Sue for any amount you desired, and it would be a friendly suit, and it would be submitted to the court without going to the trouble of taking depositions or anything? A. Yes sir. Q. When was it that you had that agreement? A. At one of those meetings when they paid me $1,000 or $2,000,1 don’t remember which.”

The act of the contractor in withdrawing or retaining the court files and papers in his suit against appellee ■was another potent circumstance tending to show that he, in collusion with the old commissioners, fraudulently obtained the vacation decree.

The vacation decree was collusively obtained, and the court was warranted in setting it aside. McWillie v. Martin, 25 Ark. 566; Harris v. Stewart, 65 Ark. 566; Montague v. Craddock, 128 Ark. 59.

Appellant makes the further contention that- the trial court erred in not allowing him $3,100, which he charges was erroneously deducted out of retained percentages with which to complete the highway where it had not been finished in accordance with the plans and specifications. He makes the contention that, according to a preponderance of the evidence, he had finished the contract in all places where he had worked on the road; in accordance with the plans and specifications.

We have read the testimony carefully bearing upon this issue, and think, according to the weight theréof, that the contractor left the work unfinished in many places, and that it would have cost at least $3,100 to complete same in the manner provided by the contract.

No error appearing, the decree is affirmed.


author: Wood, J.

text:
    Arkansas Bank & Trust Company v. State Bank of Poplar Bluff.
    Opinion delivered December 8, 1924.
    1. Reformation of instrument — sufficiency of evidence. — In á suit to reform a deed of trust to include land omitted by mutual mistake, evidence of such mistake held to be clear, unequivocal and convincing.
    2. Attachment — abandonment of lien. — Where a creditor securing an inchoate attachment lien on the debtor’s .property failed to perfect it and accepted a deed of trust in lieu thereof, such action was tantamount to an abandonment of the attachment and thereby let in an intervening lien of a deed of trust of a third •person which was recorded before the attaching creditor’s deed was recorded.
    3. Appeal and error — presumption from absence of testimony.— In the absence of testimony to the contrary, it is presumed on appeal that the action of the trial court in excepting dower and homestead rights from the lien of a deed of trust was correct.
    Appeal from Jackson Chancery Court; Lyman F. ■ Reeder, Chancellor;
    affirmed.

      Boyce & Mach, for appellant.
    To justify or authorize the reformation of a written instrument on the ground of mistake or fraud, the evidence of such mistake or fraud must be clear, unequivocal and decisive. 120 Ark. 326; 152 Ark. 110. Where the mistake is the result of one’s own carelessness or inattention, a court of equity will not interfere in his behalf. 4 Md. Ch. Ct., 335; 85 Ñ. E. 256; 81 111. 130; 25 Am. Rep. 270; 60 Neb. 771; 8 N. W. 260. Those who seek the equitable relief must show that they are without negligence in the matter. 24 Am. & Eng. Ency. of Law, 656.

      Gustave Jones, for appellee.
    An acknowledgment taken oyer the telephone is good. 158 Ark- 179.
   Wood, J.

This action was instituted in the chancery court of Jackson County, Arkansas, by the ¡átate Bank of Poplar Bluff and J. W. Ivy, as trustee (hereafter called the appellees'), against the Arkansas Bank & Trust Company and W. It. O’Neal and Clarissa O’Neal. The Arkansas Bank & Trust 'Company will be hereafter called appellant. Appellees alleged that W. R. O’Neal and Clarissa O’Neal, his wife, on or about the 3rd of October, 1919, executed their promissory note to the Farmers’ Savings Bank of Butler County, Missouri, in the sum of $5,000, and a deed of trust to John Ivy, meaning J. W. Ivy, trustee, to secure said note on the following lands in Jackson County, Arkansas, to-wit: “All of lot 8 in block 21 of the city of Newport, Arkansas,” which deed of trust was duly recorded in said county; that the Farmers’ Savings Bank assigned the said indebtedness and the security to appellee State Bank of Poplar Bluff; that the grantors in the deed of trust at the time wrote to the Farmers’ Savings Bank, the beneficiary, that the land embraced in the deed of trust fronted ninety feet on Walnut Street running back to an alley 142 feet in the city of Newport; that the description set forth as lot 8 in the deed of trust contained said frontage; that after-wards it was discovered that lot 8 is only 35 feet on Walnut Street, fifteen feet thereof having been conveyed to the trustees of the Christian Church, and that the other fifty feet intended to be embraced in said deed is lot 9 of said block 21; that the Farmers ’ Savings Bank relied upon the representations as to the size of the lot and the land to be embraced in the deed of trust, and the grantors intended that same should be .embraced in said deed of .trust, and it was therefore a mutual mistake of the parties ; that the deed of trust was not drawn so as • to embrace the lots intended to be conveyed as above set fortlt. Appellees alleged that, to cure the defect in the original deed of trust, as above set forth, the O’Neals afterwards executed a deed of .trust to the Farmers ’ Savings Bank dated October 3,1919, which was duly recorded, intending thereby to carry out the original conveyance, and that this deed of trust inured to the benefit of the appellees.

Appellees further alleged that the appellant brought a suit against the O’Neals and the Farmers’ Savings Bank, and, as ancillary thereto, caused a writ of attach-, ment to be issued and levied upon all of said lots; that the transfer and sale of the indebtedness and the security therefor to the appellee, State Bank of Poplar Bluff, was long prior to the institution of the suit by the appellant against the Farmers’ Savings Bank and the O’Neals; that the O’Neals, in consideration of the dismissal of the suit and the attachment above set forth, executed to the appellant a mortgage or deed of trust on the property intended to be embraced in the deed of trust securing the indebtedness which had been transferred to the appellee; that, notwithstanding the above agreement to dismiss the attachment proceedings, the appellant'is still seeking some right under said attachment. Appellees alleged that, by reason of the acceptance by the appellants of the deed of trust or mortgage before mentioned, the appellant had abandoned its action, and the attachment against the property described was thereby discharged; that the indebtedness of the O’Neals to the Farmers’ Savings Bank of Missouri, which had been transferred to the appellee, was past due and unpaid; that it ¿mounted to $5,987.52. Appellees prayed that the deed of trust given to secure such indebtedness be reformed toi carry out the intention of the parties thereto, and that appellees have judgment in the sum above mentioned, and that the deed of trust as reformed be’foreclosed to satisfy such judgment, and that the appellant be pretermitted until appellees ’ judgment should be satisfied.

Appellant, in its answer, challenged the right' of the appellees to have the deed of trust reformed as alleged and to have the same declared a first lien on lots 8 and 9 of block 21 of the city of Newport, and alleged that, prior to the institution of -this suit, it had instituted an action in the chancery court of Jackson County against the O’Neals on an indebtedness due the appellant,- in which-action it had an attachment issued and levied on lot 9 and also on lot 8, block 21, described in appellees’ complaint. It was also alleged that appellant had a superior lien on the property described in appellees’ complaint by virtue of a certain deed of trust executed by W. B. 0 ’Neal and Clarissa 0 ’Neal on May 31,1921, conveying the above property to a trustee for the benefit of the appellant.

The cause was heard upon the pleadings and exhibits and the depositions of the witnesses. W. B. O’Neal tesr titled that he and his wife, Clarissa O’Neal, executed a deed of trust on October 3,1919, to the Farmers’ Savings Bank of Butler County, Missouri, to secure an indebtedness of $5,000, which he borrowed from that bank. Witness told M]r. Chapman, the cashier of the bank, that he had two lots in Newport, and gave him the deed to draw up the papers and mortgage. It was witness’ intention to embrace both lots as security for that debt. The State Bank of Poplar Bluff, appellee, after it had taken the mortgage over from the Farmers’ Savings Bank, discovered that lot 9 had been omitted from the mortgage. Witness got appellee to take over the debt and mortgage from the Farmers’ Savings Bank. The cashier of the appellee didn’t notice for some time that the mortgage didn’t include lot 9, and witness said that he thought the mortgage covered both lots. It was the intention of witness and his wife to include the business lots on Walnut Street in the city of Newport, 100 feet front on Walnut Street, less what witness had sold to the Christian Church. Witness had before that sold fifteen feet off of his lot next to the church. The appellee didn’t discover the error until the appellant brought suit against witness. Then they came down and brought the deed of trust they had bought from the Farmers’ Savings Bank and asked, “How is this, that we haven’t got a deed of trust to both lots down there in Newport?” Witness told them be was no lawyer, and had nothing to do with the drawing of the deed of trust, and: that it was witness ’ understanding that they had a deed of trust on both lots down there. These were lots that witness had bought from Mrs. Creighton, and witness gave the deed.to the cashier of the Farmers’ Savings Bank to draw up the papers, and witness attached a copy of that deed as an exhibit. Witness had given no other security to appellee to secure the indebtedness covered by the $5,000 note which was transferred to the appellee. Witness did give a mortgage to the Farmers’ Savings Bank covering the bakery, machinery and fixtures, to secure this same note that witness gave the deed of trust on the property in Newport to secure.

Witness further testified that he and his wife were sued by the appellant in the chancery court of Jackson County, recently, and that action was compromised out of court. Witness and his wife both executed a mortgage to the appellant to secure a debt he owed appellant. The appellant agreed, if witness would give a mortgage on the two lots and the house, they would stop the suit, and witness executed the mortgage, which appellant now holds, with that understanding.

The cashier of the Farmers’ Savings Bank, appellee, testified that it was agreed between him and the O’Neals that O’Neal was to give a deed of trust on some business property in Newport to secure a promissory note of $5,000 executed to the Farmers’ Savings Bank. Witness didn’t know the property personally, but O’Neal stated that the deed of trust was to cover the entire piece of business property except the part that he had sold to the church. Witness was shown the deed of trust, and stated that he didn’t know who drew it. He didn’t know why it didn’t include all the property, as it was his understanding that the appellee was to get all the business ■property of O’Neal which'he had recently acquired in Newport, except that part sold to the church. Witness didn’t recall any of the circumstances in' regard' to the preparation and execution of the note and deed of trust: He handled the transaction of the assignment of the note and deed of trust from the Farmers’ Savings Bank to the appellee through Mr. Hayes, cashier of the appellee.

P. C. Hayes, cashier of the appellee at the time, testified that O’Neal came to him asking for a line of credit, and stated that he owed the Farmers’ Savings Bank $5,000 secured by a business lot in the town of Newport, Arkansas. He stated that he paid $5,000 for the lot, but had since sold off fifteen feet to a church. Witness asked O’Neal what was the size of the lot, and he stated that it was 100 feet less fifteen feet. Witness asked Mr. Chapman, cashier of the Farmers’ Savings Bank, about the security, and he said that it was a business lot in the town of Newport. Witness discovered that a part of lot 9 was omitted from the deed of trust in October, 1920. He asked Mr. O’Neal again about it, and he reiterated that the deed of trust included one 100-foot lot. Witness let it go for a while, until he saw the complaint of appellant. The appellee had other security — a chattel mortgage covering the fixtures, machinery and equipment of the bakery shop — which was given prior to the purchase of the $5,000 note. When witness took over the note from the Farmers’ Savings Bank, he had in mind that it was secured by a 100-foot lot. If witness had known that it only included a fifty-foot lot, he would not have bought the paper. O’Neal made the statement that the lot was 100 feet when he came to the appellee as its customer in November, 1919.

John E. Williams testified that he was the cashier of the appellant, and was familiar with the action brought by the appellant in the chancery court of Jackson County against O’Neal and others on an indebtedness to the appellant, which suit was instituted in the summer of 1920. Later O’Neal executed a deed of trust to the appellant to secure the payment of this indebtedness. At the time this deed of trust was executed the appellant had no knowledge of a deed of trust executed by O’Neal and wife on November 27, 1920, correcting a former deed of trust under which the appellee claims. There was no record at that time of this deed of trust of November 27, 1920; that was not filed for record until June 1,1921. At the time O’Neal gave the deed of trust to the appellant, there was no agreement made that the suit then pending in the Jackson Chancery Court by appellant against the O’Neals would be dismissed. The consideration for the deed of trust executed by the O’Neals to the appellant was the original indebtedness due by the O’Neals to the appellant, and was given in consideration that the time for payment of this indebtedness should be extended.

Chas. D. Henry testified that he was the president of the appellant, and was familiar with the action brought by the appellant in the Jackson Chancery Court against O’Neal and others, in which the property of O’Neal was attached, and appellant later obtained a deed of trust from O’Neal to secure the payment of his indebtedness to appellant on the agreement of appellant to extend the time of payment for such indebtedness. There was no agreement between the appellant and O’Neal to dismiss the action, except as to O’Neal’s home. Appellant didn’t agree to dismiss the action with -regard -to the lots on Walnut Street and claimed by the appellee. At the time appellant obtained the deed of trust from O’Neal under which it now claims, it had no knowledge of the deed of trust now set up by the State Bank of Poplar Bluff as a correction, of the deed of trust which this action was brought to reform. There was an agreement to the effect that the deed of trust from O’Neal and wife on the 27th of November, 1920, executed to the appellee, Farmers’ Savings Bank, to correct the description of the property in the original deed of trust from O’Neal and wife to the Farmers’ Savings Bank, was filed for record in the office of the recorder on June 1, 1921.

The trial court found that the O’Neals executed to the Farmers’ Savings Bank of Butler County, Missouri; their promissory note in the sum of $5,000, October 3, 1919, and that, to secure the payment of same, they executed their deed of trust to all -of lot 8, block 21, city of Newport, Arkansas,' and that it was the understanding and agreement between the parties at the time that the deed of trust should cover a frontage of ninety feet on Walnut Street, in block 21 of the city of Newport, which would have included all of lot 9 and 35 feet of lot 8 in said block; that thereafter, on the 27th -day of November, 1920, the O’Neals executed and delivered to the Farmers’ Savings Bank of Butler County, Missouri, their deed of trust correcting such description and embracing lot 9, block 21, aforesaid, but that same last named deed of trust was not properly executed and acknowledged by Clarissa O’Neal; that thereafter the O’Neals executed and delivered to the appellant their deed of trust dated May 31, properly executed and acknowledged by Clarissa O’Neal, whereby her dower interest in lot 9 was conveyed to the appellant; that, prior to the institution of this action, the note and deed of trust held by the Farmers’ Savings Bank were transferred and assigned to the appellee.

Upon these findings the court entered a decree in favor of the appellees against the O’Neals for the amount of the note with interest in the sum of $6,767.50, and decreed that the deed of trust of October 3, 1919, be reformed so as to embrace lot 9 and all of lot 8 except a strip 15 feet wide off the east side thereof, block 21, and declared the same to be a first lien on the property as above described, subject to the dower rights of Mrs. Clarissa O’Neal in lot 9, and directed that the property be sold and the proceeds held subject to the further order of the court. From that decree is this appeal by the appellant, and the appellee cross-appeals here from that part of the decree denying the appellee right to the dower interest of Mrs. Clarissa O’Neal in lot 9.

1. While there are some discrepancies in the testimony of the witnesses who testified for the appellee as to whether the deed of trust of October 31, 1919, should be reformed so as to embrace lot 9 and all of lot 8, block 21, city of Newport, Arkansas, except a strip fifteen feet wide off the east side of lot 8, as contended by the appellee, yet these discrepancies are unimportant, as they do not relate to the essentials which the appellee was required to prove in order to entitle it to reformation. These essentials are, that it was understood and agreed by the O’Neals and the Farmers’ Savings Bank at the time the deed of trust was executed, and as a consideration therefor on the part of the O’Neals, that the property as last above described was to be embraced in the deed of trust to secure the $5,000 indebtedness to the Farmers’ Savings Bank. The testimony of O’Neal, who conducted the negotiations for himself and wife, and the testimony of Chapman, who conducted the negotiations for the Farmers’ Savings Bank, was clear and unequivocal to the effect that it was their understanding that the property as above described was to be included. O’Neal states that he told Chapman that his business property in Newport was to be included; that he and his wife intended to secure the debt to the Farmers’ Savings Bank by a mortgage on all the Walnut Street property except fifteen feet off of lot 8, which he had sold to the Christian Church. Chapman’s testimony was to the effect that it was their understanding that the bank was to have a deed of trust on all of O’Neal’s business property which he had recently acquired.

So we conclude that the testimony is clear, unequivocal and convincing that it was the intention of the parties to the deed of trust to embrace the property as sam'e is described above in the decree reforming the deed. Such was the manifest intention of the parties to the instrument, and the O’Neals afterwards undertook to effectuate their intention by executing an instrument on November 27, 1920, designated a deed of trust, in which the Farmers’ Savings Bank was the beneficiary, describing the property as they intended it should be in the original deed of trust of October 3, 1919. The evidence is clear, unequivocal and decisive that the parties to the original deed of trust intended to include the property described in the court’s decree reforming that instrument, and that the failure to so describe the property was the result of a mutual mistake. The proof meets the requirements of the law in such cases. Eureka Stone Co. v. Roach, 120 Ark. 326; Tri-State Construction Co. v. Watts, 152 Ark. 110.

2. The appellant contends, however, that the appellee was not entitled to have the deed of trust reformed because, before the appellee instituted this action for that purpose, the appellant had acquired a specific lien on the property by an attachment which had been issued in the action in chancery and levied on lot 9, and, by a deed of trust executed by the O’Neals to appellant, embracing the same property, that the lien thus acquired by the appellant is superior to the lien of the appellee because of negligence on the part of the appellee in not having his deed reformed before the alleged rights 'of the appellant accrued. The appellant would be correct in its contention if it had perfected its inchoate attachment .lien. See Hawkins v. Files, 51 Ark. 417. But the specific inchoate lien obtained by the attachment was not followed up and perfected by a judgment or decree in that action in favor of the appellant against the O’Neals. Merrick & Fenno v. Hutt, 15 Ark. 333; Lamb v. Belden, 16 Ark. 541; Frellson v. Green, 19 Ark. 378. Instead of doing this, appellant accepted the deed of trust executed May 31 and acknowledged Jlune 1, 1921, and recorded June 11, 1921. This action on the part of the appellant was tantamount to the abandonment of its inchoate attachment lien; and the appellee had its corrected deed of trust put of record on June 1, the day appellant’s deed of trust was acknowledged, and ten days before appellant’s deed of trust was recorded. It thus appears that, in the race of diligence between these creditors, the lien of the deed of trust under which the appellee claims was prior in point of time to the deed of trust under which the appellant claims. The appellee’s equities therefore under its corrected deed of trust are paramount to those of the appellant, and the trial court did not err in so holding.

3. The appellees contend on cross-appeal that the trial court erred in not foreclosing- the deed of trust on the dower and homestead rights of Mrs. Clarissa O’Neal, but appellees do not present any testimony to sustain sncli contention. Tbe trial court found that tbe deed of trust of November 27,1920, executed by the O’Neals, was not properly acknowledged by M,rs. O’Neal, and bottoms its decree as to dower and homestead on such finding. Appellee does not abstract tbe testimony on tbis issue, nor do we find any testimony on tbis issue abstracted by tbe appellant. Therefore, in tbe absence of any testimony to tbe contrary, it must be presumed that tbe court’s decree is correct on tbe issue raised by tbe cross-appeal.

We find no error in tbe decree of tbe court, and it is therefore in all things affirmed.


author: Smith, J.

text:
    Brigham v. Thrailkill.
    Opinion delivered December 8, 1924.
    1. Sales — conditional sale — right op vendor to retake. — Where a note for the purchase price of a sawmill retained title in the seller, with right to retake the sawmill with reasonable rental, if the seller deemed it in unsafety, and the purchaser leased it to another, who claimed title by purchase, and refused to pay the notes upon demand, held that the seller was entitled to retake the property.
    2. Sales — .Conditional sale — recovery of rental. — Where a seller of a sawmill retained title thereto, with the right to retake the property and recover a reasonable rental therefor upon conditions named, held that, upon the seller’s exercising the right to retake the property, he was entitled to the rental only from the date of the demand for possession.
    Appeal from Ouacbita Circuit Court; L. S. Britt, Judge;
    reversed.

      R. K. Mason and McKay & Smith, for appellant.

      Joe Joiner, for appellee.
   Smith, J.

On May 8, 1922, appellee Tlirailkill sold a small sawmill to P. L. Merritt, and took three notes for tbe purchase money, due November 1, 1922, March 1, 1923, and November 15, 1923, respectively. Tbe notes were for $375 each, and, together, represent tbe total net purchase price, as no cash was paid. The notes are identical except as to date payable, and the note first maturing reads as follows:

“Title Note.
“$375. May 8, 1922.
“Nov. 1, 1922, after date, we promise to pay to the order of S. I). Thrailkill three hundred seventy-five dollars, at Waldo, Arkansas, for value received, with interest at the rate of 10 per cent, per annum from February 1, 1922, until paid.
“The machinery, boiler and engine, sawmill and edger and plaher, together with accessories, for the use of which, to the maturity hereof, this note is given, is and shall remain the property and under the control of S. D. Thrailkill or assign, and for default of payment, or, if the said S. D. Thrailkill deems the said property in unsafety by removal or otherwise, it shall, on demand, be returned to S. D. Thrailkill or assign, in good order, and with pro rata pay for its use, which shall be a reasonable rent per month. It is now understood and agreed that B. D. Thrailkill owns this property absolutely, and the title remains in him until the notes are paid in full.
“(Signed) P. L. Merritt.
“Witness: (Signed) J. D. Churchwell.”

After so purchasing the mill, Merritt, without ever having ■ operated it, leased it to H. C. Brigham for a month and a half for a second-hand Ford truck delivered to Merritt as rental. Thrailkill was advised that Merritt had sold the mill, and he went to the premises where it was located, and found Brigham in possession, and was informed by Brigham that he had purchased it. Thrailkill advised Brigham that he himself was the owner, and that, if Brigham wished to keep the mill, he would have to pay at once the notes given him bv Merritt. This conversation occurred on October 1, at which time the first of the notes to mature was not then. due. Brigham promised to adjust the matter at once, but did not do so. On the 10th of October Thrailkill again demanded payment of the notes as the condition upon which Brigham might use the’ mill, aud, after waiting until the 16th of that month for payment, which was not made, he brought this suit, making both Merritt and Brigham parties defendant.

Thrailkill alleged in his complaint that the mill had been damaged 'by improper use, and he prayed judgment for this damage and for the rental value of the mill during the period of. Brigham’s possession, and caused the mill to be attached, together with the lumber on the mill yard which Brigham had sawed on the mill. There was testimony that Brigham had sold part of this lumber and had contracted to sell the remainder, and, upon a verdict being returned in favor of the plaintiff against the defendant Brigham, the court sustained the attachment.

It will be observed that the notes for the purchase money not only retained the title, but gave Thrailkill the right to retake the property if he deemed it in unsafety, by removal or otherwise, on demand, in which event the sale was to be annulled, and Merritt was to pay a reasonable rent per month for its use; and we think the jury was warranted in finding that the circumstances of the case authorized and justified Thrailkill in exercising this right.

Merritt made no defense to the suit, and judgment was rendered against him for the want of an answer, and the case went to the jury as a suit against Brigham.

Thrailkill testified as to the rental value of the property and the damage done to it by its improper use, and there was a verdict in his favor for $50, and judgment accordingly.

The instructions given at the request of Thrailkill permitted the jury to find the rental value of the mill during the time Brigham had been in possession of it, together with any damage caused by the negligent operation of the mill, if there was a finding in his favor. The testimony is conflicting both as to the rental value and the damages. Brigham also denied that any damage liad been done to the mill.

The testimony on behalf of Thrailkill is ample to support the verdict returned, and we would affirm the judgment in his favor except for the fact that the instruction permitted the jury to find the rental value of the bill from the time that Brigham took possession of it; whereas the jury should only have been permitted to find the rental value against Brigham from the time demand was made on him for the surrender of the property. The sale by Thrailkill was a conditional one, which gave him the right, under certain. conditions, to retake the property; but, until he had exercised this right, he had no authority to charge Merritt’s lessee with the rent. Merritt had the right to dispose of the property subject to Thrailkill’s right to retake; but, until Thrailkill had exercised this option, he had no right to charge Merritt’s lessee with the rent. No recovery on account of rent should therefore have been permitted prior to October 1, the date on which demand for the surrender of possession was made.

For.the error indicated the judgment is reversed, and the cause remanded for a new trial.