text:
    Springfield Mutual Association v. Atnip.
    Opinion delivered November 30, 1925.
    1. Insurance — recovery op penalty and attorney’s pee. — A mutual benefit association doing a life insurance business under the assessment plan, and not as a fraternal benefit society, as defined by Crawford & Moses’ Dig., § 6068, is subject to the provisions of § 6155, Id,., imposing a penalty and attorney’s fee upon an insurance company failing, to pay a loss within the time specified in its policy.
    2. Insurance — ultra vires contract — waiver.—Where an insurance company ¡bottomed its defense on the claim that, although its ■agent was correctly informed as to' the age of the applicant for insurance, the agent conspired with the insured to write a false age in the application, and the ibeneficiary knowing such fact, failed to notify the insurer, such defense is inconsistent with the defense that-the contract was ultra vires.

    3. Insurance — what law governs. — Where an insurance contract was entered into and was to ibe performed in this State, and the insurer’s answer admitted that the contract was not subject to the laws of the State which granted its charter, the contract is subject to the laws of Arkansas.
    4. Insurance — constitution and by-laws — waiver.—Under the laws of this State, an insurance company, when not prohibited from doing so by statute, may waive provisions contained in its constitution and by-laws.
    5. Insurance — authority op agents taking applications. — Where insurance companies authorize agents to fill out and send in applications as a basis for issuing policies, they cannot repudiate the acts of such agent within the scope of their real or apparent authority, except upon proof of fraud or conspiracy on the part of the insured and policy .holder and agent to defraud the companies.
    6. Insurance — restriction as to insured’s age — waiver.—A provision in a mutual insurance company’s constitution or by-laws restricting the age at which a policy may be issued is waived where the insurer’s agent, with knowledge that an applicant’s age is misstated, nevertheless filled out the application upon which the company issued its policy and received the assessments or premiums due on the policy. ’
    7. Insurance — insurable interest. — A son has an insuraible interest in the life of his mother.
    Appeal from Clay Circuit court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      W. E. Spence and Haymes & Dickey, for appellant.

      Arthur Sneed, for appellee.
   Wood, J.

' The Springfield Mutual Association, hereafter called appellant, is a Missouri corporation authorized to do business in Arkansas. It is a mutual insurance association doing a life insurance business on the assessment plan. It issued two policies of $1,000 each on the 2nd day of June, 1919, insuring the life of Mary Atnip in favor of George Atnip, hereafter called the appellee, as the beneficiary. Under the terms of the first policy, if the death of the insured occurred within the first four months, the appellant was to pay $125, and under the second policy the sum of $100-; and, if within the calendar month next succeeding, the sum of $125, the amount of the payment to increase each calendar month in the sum of $25 during the terms of thirty-five months, and at the expiration of forty months from the date of the policies the maximum amount of $1,000 to be recovered thereunder became payable on the death of the assured, provided the assessments had been duly paid under such rules as were set forth in the application and by-laws of the appellant, and provided proof of death was made as prescribed by the terms of the contract of insurance.

This is an action by the appellee against the appellant to recover on the policies. The appellee alleged that the insured died on the first of April, 1923, and that the appellee had complied with all the provisions of the policies, and that the appellant was due the appellee on the policies the sum of $2,000, which the appellant refused to pay. "The appellee asked judgment for that sum with six per cent, interest from the date of the death of the insured, and also for twelve per cent, damages and attorney’s fees.

The appellant admitted in its answer that it was an insurance corporation of Missouri authorized to do business in Arkansas, and that it had issued the policies in controversy as in the complaint alleged. Appellant, among other things, alleged that it was not liable on the policies because tbe policies or certificates issued .'by it are mutual benefit certificates on the assessment plan, and that the assured had not complied with the constitution and by-laws of the appellant in that constitution, 52D, and the by-laws, 52E, of the association, declare that the membership of the association is limited to persons under fifty-five years of age; that the alleged certificates- or contracts of insurance were therefore ultra vires, and not binding on the appellant. The appellee identified and introduced the policies in evidence as above set forth, and testified that the assured was his mother; that he was the beneficiary-in the policies; that he had paid the assessments to date which the appellant had received; that his mother had died on April 1, 1923, and that he had made proof of death as provided under the terms of the contract ; that he had made demand on the appellant for the amount of the policies, which it had refused to pay. He stated that when the agent of the appellant, Schultz, solicited the insurance, he -asked the appellee how.old his mother was, and appellee replied that, she would be ’sixty next June; that the agent told the appellee that the appellant company took policies from ten to sixty-five years of age. The agent then filled out the applications at the home of the appellee, and .appellee paid to the agent the sum of $8, the amount of the assessment at that time. Appellee did not know that the company could not insure a person over fifty-five years of age. Appellee’s mother was dependent on. her children for support. Appellee did .not know that the-appellant did not write people at sixty-five years of age. The applications were made out and sent in, and the policies came to -appellee through the mail, and he took them out of the postoffice.

The appellant called as a witness its secretary and treasurer. He identified the constitution -and articles of association and by-laws of the -appellant, at the time the policies were issued, and these were introduced in evidence. Witness Reaves -testified that he was selling -life insurance-for the appellant; -that he had a conversation. with the appellee in regard to selling him life insurance on his. mother in 1922, and that the appellee told him then that he knew that the appellant only insured people up to fifty-five years of age, hut that Schultz, the agent who solicited his application, told- him he would fix it so that he could get the money. The secretary of the appellant testified that the first information the appellant had that the insured was over fifty-five years of age Was after her death; that appellant got that information through proof of death. This witness, on cross-examination, testified that Schultz'Was appellant’s agent authorized to take • applications for insurance on people between the ages of'ten and fifty-five years. It was shown that the appellee could neither read nor write.

The appellant introduced in evidence certain sections of the Revised Statutes of Missouri containing certain laws concerning insurance. Witness 'George Ross testified for the appellee in rebuttal, that he was present at the time of the conversation between the appellee and witness Reaves, one of the agents of appellant, and Ross testified that Reaves and the appellee had considerable dispute about the age; that Reaves told appellee that the appellant did not write people over fifty-five years of age, and appellee-contended that it did, and said that the appellant had written insurance on his mother’s life. The witness thereupon advised appellee to take the matter up with the appellant, but Reaves told the appellee that he would not say anything about it unless'appellee wanted his money back. The appellant tendered to the appellee it's check for $84.40 in full of all assessments paid 'by the appellee, which the appellee refused.

The appellant asked the court to instruct the jury to return a verdict in its favor, which the court refused. The appellant, also prayed the court to instruct the jury that the policies in suit were Missouri contracts and governed bv the laws of Missouri, and also to the effect that the constitution and by-laws of the association were binding on the association and each and every member thereof, and in effect that the policies upon which this action was based were ultra vires, and not binding on the appellant ; and also prayed several instructions presenting in different form the proposition that the policies upon which this action was founded were ultra vires contracts, and therefore not binding on the appellant, and that the appellant had not waived the provisions of its constitution 'and by-laws, and was not estopped by the act of its soliciting agent, or anything that the general officers of the appellant had done.

The court refused to give these prayers for instructions. The court granted prayers of appellant to the effect that if the assured, or the appellee, knew at the time the applications were made, that by reason of the age of the assured she was not entitled to 'become a member of the society, the appellee could not recover; that, if the agent soliciting the insurance was not authorized to receive applications for membership for persons over fifty-five years of age, and this fact was known to the appellee, there could be no recovery unless the jury found from the evidence that the insured gave her correct age, and the agent wrote it incorrectly in the applications; but, in that event, if the appellee had knowledge of the incorrect statement as to the age of the insured and failed to inform the appellant of that fact, the appellee could not be held to have acted in good faith, and the appellant would not be liable.

The effect of the instructions given at the instance of the appellant on this branch of the case was that, if the appellee gave the correct age to the agent soliciting the application for insurance, and such agent wrote a false age, and appellee knew it to 'be false at the time, then the appellee would not be entitled to recover. The jury returned -a verdict in favor of the appellee in the sum of $2,000. Judgment was entered against the appellant in appellee’s favor for that sum, and likewise in appellee’s favor for a twelve per cent, penalty of $240, and for $300 attorney’s fee, all of which was to bear interest at the rate of six per cent, per annum. From which .judgment is this appeal.

We will dispose of -the appellant’s contentions for reversal in the order in which they are presented in the brief of its counsel. First, “that the association is a mutual benefit association doing- business on the assessment plan. ’ ’ This contention is conceded by the appellee.

Second, “that no penalties or attorney’s fee can be adjudged against such an association.” Section 1 of act 308, approved March 29, 1905, (§ 6155 of C. & M. Digest) provides: “In.all cases where loss occurs, and the fire, life, health, or accident insurance company fiable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of said loss; said attorney’s fee to be taxed by the court where the same is heard on original action, 'by appeal or otherwise, and to be taxed-up as a part of the costs therein and collected as other costs are or may be by law collected. ’ ’

Section 2 of the act provides: “That all laws and parts of laws in conflict herewith be and the same are hereby repealed, and this act shall take effect and be in force from and after its passage.”

In Illinois Banker’s Life Ass’n. v. Mann, 158 Ark. 425, at page 429, we quoted the first section of the act of 1905 above, and said: “This.apparently includes .all insurance companies, and does include all companies except those, qxempted by other legislation from the operation of that section, and those are the companies included in § 4352, Kirby’s Dig’est, as amended by act of March 28, 1917, C. & M. Digest, § 6068, et seq.” After the passage of the act of 1905, supra, all insurance companies came within the purview of that act except those companies referred to in the act of March 28, 1917 (§ 6068, C. & M. Digest), known as fraternal benefit societies, as defined in § 6068 supra et seq.

It is alleged and conceded that the appellant is a mutual benefit association doing a life insurance business under the assessment plan, but there is nothing in this record to show that such association is the same as a fraternal benefit society, as defined in § 6068 et seq. supra. As was said in Indiana Lumbermen’s Mutual Ins. Co. v. Meyer Stave & Mfg. Co., 158 Ark. 199, “the penalty statute applies in the broadest terms to suits to recover for losses by ‘fire, life, health, or accident insurance.’ ” The above statute repealed all laws in conflict therewith, and it contains no exemptions or exceptions of any kind, and none have been made since, except fraternal benefit societies, as defined in § 6068 et seq. of C. & M. Digest. It is not pretended that the appellant is not doing a life 'insurance business in this State. Its only contention is that it is doing an insurance business on the assessment plan. But that does not make it any the less a life insurance association doing a life insurance business in this State. The contracts it issues are life insurance contracts, and such companies come within the purview of the statute applying to all insurance companies unless they are expressly exempted by the latter statute as shown by the decisions supra. See also Sovereign Camp W. O. W. v. Newman, 142 Ark. 132, where we held in effect that insurance certificates issued by benefit societies to their members must be regarded the same as any other ordinary policy or contract of insurance, so far as relates to the construction and enforcement of such contracts.

The appellant next contends that the certificates are void, and never were a binding contract on the association.. The prayers for instruction which the appellant presented in the court below are not consistent. In some of them the appellant prayed the court to instruct the jury that; under the laws of this State, the officers of appellant had no authority to waive the provisions of its constitution and by-laws in regard to tbe age limit of those who could become members, and that, if a misrepresentation was made as to age of the assured, such misrepresentation rendered the policy void as an ultra vires contract. But in other prayers for instruction, which were given at the instance of the appellant, the jury were instructed that if the agent of the company was not authorized to receive applications for membership from persons over fifty-five years of age, and this fact was known to the. appellee at the time the applications were preuvrnd, there could be no reco' t'T<-, Unless the jury found from the evidence that the in3 .-cd fgave her correct age, and the. agent wrote it incorrectly hi'the application, and. in that event, if the appellee had kfh >wledge of the incorrect statement as to the aye of , tie insured -and failed to inform thb ay-pellant of tbit fact, ííir J -ppellee could not be held to ha ^ acted in gooo faith, and the appellant would not be liable. The last proposition announced w-as embodied in appellant’s prayer fox distraction No. 9 -and was given as requested. Appellant V prayer for instruction No. 10 was also granted, and that Instruction was of similar purport. It therefore appear;- that the appellant waived its contention in the trial court that the contracts of insurance were ultra vires' and void because it will be noted from the above prayurs for instructions, which the court gave, that the appellant bottomed its defense on the contention that the app ellee and the appellant ’s agent entered into a conspiracy to defraud the appellant in that, although they were correctly informed as to the age of the applicant for insurance, nevertheless the agent wrote a false age in the application, and the appellee,- knowing such fact, failed to notify the appellant. Of course, these instructions were wholly inconsistent with appellant’s defense that the contracts were ultra vires and void.

But, be this as it may, we cannot concur in the contention of -appellant’s counsel that the certificates or policies herein are ultra vires contracts. Counsel for appellant contend that, inasmuch as the appellant is a Missouri corporation and chartered under the laws of that State, which forbid the appellant from issuing policies on the life of persons 'over sixty years of age, the policies herein are null and void. But appellant in the trial court did not set up in its pleading that these policies were Missouri contracts. It simply alleged that appellant was “chartered under the laws of the State- of Missouri and authorized to do business in the -State of Arkansas, but is not'subject to the laws of the State of Missouri or of the State; el Arkansas.” Its whole debenjift was bottomed on tha theory that the provisions pf the constitution and by-l^aws could not be waived, iio ^matter whether the contracts were Missouri or "Arkansas contracts. In view of ;< this ansr/er of appellant,^*the trial court was justified In treating the policies asJArkansas contracts, and we Nave so treated them.

Counsel furthe^* .contend that the constitution and by-laws of, appellant are .written in conforinity with the statutes of Missouri, forbidding applications to be taken and policies issued Insuring persons over sixty years of age, and that these provisions cannot be waived by any of the agents, or general officers of the appellant. Many authorities'are cited! to sustain ar pellant’s contentions, among them some of our own cases, for example, United Order of Good Samaritans v. Meekins, 155 Ark. 407. None of these cases have any application to the case at bar. In the ease just mentioned a benefit certificate was issued to a member, of -a- fraternal benefit society organized under the laws! of this State, which forbid such organizations from admitting to its membership persons more than sixty yeaus of age. In that case, we held that there can be no recovery bn a benefit certificate issued to a member over the age of sixty years, -because such certificate was issued contrary to the statute. Counsel insist that there is a similar statute in Missouri forbid-, ding appellant from- issuing its certificates to persons over-sixty years of agee, -and hence the policies herein are

void under the authority of the Arkansas- cáse just cited. But there is no statute in-this State forbidding mutual insurance or benefit associations on the assessment plan from insuring members-over sixty years of age.- Wé have already called attention to: the fact that appellant is not a fraternal benefit society. Hence the' statutes governing such societies have no implication to appellant. Moreover,.appellant is under a ni$>apprehension of the law in assuming that the policies in [controversy, are Missouri contracts. In Mutual Reserve Fund Life Assn. v. Minehart, 72 Ark. 630, we held that, policies of-life insuiv ance made and delivered in this State are Arkansas contracts. Although the appellant is a Missouri corporation, nevertheless it is'authorized to do .'business, ■ and is doing business, in-this State, soliciting applications, .and issuing its certificates or policies of insurance.and delivering the same in this State. It is therefore an-Arkansas contract. These, policies, being Arkansas contracts,; must be governed by the laws-applicable' to such contracts, in this State. Therefore, the .numerous- authorities' cited by. the -appellant to support his= -contention, to: the-effect that the provision in its constitution-and by-laws, as to the age limit cannot be waived, haye no application in this State. For the rule in our State is that an insurance company, when not inhibited by statute from doing so, may alter, remake, or waive the provisions' of its constitution and bylaws. The power which makes has-the power to destroy and remake. .And when these companies'send out their soliciting agents .to take applications" for insurance clothed with the real or apparent ’authority to 'fill out such applications and send them in to the company, which applications’ are -made the.basis for the issuance of insurance policies, the; companies cannot repudiate the acts of these soliciting agents within the scope of their real or apparent authority, except upon proof Of fraud or conspiracy on the part of the insured aiid policy holder and agent to defraud the companies. As we have seen, the question of fraud Or collusion" on the-part of-the soliciting agent of the appellant and the appellee who acted on behalf of the policy holder in conducting. the negotiations for the application was submitted to the jury under instructions. requested by the appellant, and the verdict on that issue- is. conclusive here against the appellant. .

• The jury were- warranted in finding that the age of the assured was corrfeitly stated, but that the appellant’s soliciting agent wrol|e a false age in the application, and that the appellee did! rot have knowledge at the time the application was take*n that the appellant’s agent was forbidden by the constitution and by-laws of appellant from insuring persons over sixty years of age. The law governing such cases is announced in several decisions' of this court. One among’the last is that of Home Mutual Benefit Association v. Rowland, 155 Ark. 450, where we held, quoting syllabus, “A by-law of a'fraternal benefit society restricting the age at which a benefit certificate may be issued is waived where the society’s agent, with knowledge that an applicant’s age is misstated,” nevertheless filled out the application upon which the company issued its policy and received the assessment or premiums due on the policy.

' In United Assurance Ass’n. v. Frederick, 130 Ark. 12, 17, we held that “knowledge of the agent who wrote the application is imputed to the company” (citing several cases). See also Mutual Aid Union v. Blacknail, 129 Ark. 450; Sov. Camp W. O. W. v. Newsum, 142 Ark. 132; Eminent Household, etc., v. Heifner, 160 Ark. 624, and cases there cited.

Unquestionably, under the doctrine of the'above and other cases of this court, the testimony was amply sufficient to warrant the jury in finding that the appellant waived -the provision of its constitution and by-laws, and that it is estopped from asserting non-liability by the conduct of its agent and officers in soliciting these applications, accepting the same, issuing the policies thereon, and receiving- the assessments or premiums due to keep the policies alive until the death of the assured.

Appellant’s last contention is that the appellee had no insurable interest in the life of his mother. This contention is wholly without merit. Warnock v. Davis, 104 U. S. 775, is cited and quoted by us in Home Mutual Benefit Ass’n. v. Keller, 148 Ark. at page 361, as follows: “It is hot necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of.his wife, and a wife in the life of-her husband. The natural affection in cases of this kind is considered as more powerful, as operating more efficaciously, to protect the life of the insured, than any other consideration.”

There is no reversible error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Fryer v. Lambert.
    Opinion delivered November 30, 1925.
    1. Courts — control over records. — -Courts have a continuing- power over their records, not affected ¡by the lapse of time, and may -restore lost records, and correct records which were so made up as to express a judgment different from the one pronounced by the court.
    2. - Courts — power op'clerk to correct record. — The power of a -court to- correct -its' records must be exercised by the court, and the clerk has no authority on his own responsibility and without an order of the court to amend, change or correct the judgment record, -since the court cannot delegate its judicial functions to its clerk.
    3. Courts — power op clerk to amend record.- — -Where a clerk corrects a mere clerical error in a record,, he will foe presumed to act under the directions of the court.
    4. Courts — correction of decree by clerk. — Where a complaint in a mortgage foreclosure suit erroneously described the land, except in thev prayer, and the default decree, advertisement -of sale, report of commissioner’s deed and approval thereof each contained the same error, the clerk had no authority to make correction thereof,'and: the purported corrected decree was properly set aside. •
    Appeal from Conway Chancery Court; W, E. Atkinson, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    .: J. W. Fryer prosecutes, this 'appeal to reverse a decree of the .chancery- court opening -and setting aside a foreclosure decree on real estate in a case-wherein J. W. Fryer is the'plaintiff and Loranzy and Belle Lambert • are .the defendants., .
    .The record shows that,J. W. Fryer brought a suit against Loranzy Lambert and-Belle Lambert in the Conway Chancery Court to foreclose -a-mortgage on 80 acres of land- called the Cadron place,- and on 40 acres of land known as the Creen -place. • There is no dispute between the parties but that the 80-acre tract was properly described in the complaint, the decree, and in the report of sale, and -all the subsequent proceedings. The 40 acre tract is described in the original -mortgage as the SW^ of the SE% of section 30 in township 6, north of range 15 west, and all the land is embraced in the mortgage described as situated- in Conway County, Ark. In the body of the .complaint in the foreclosure, suit, the 40 acre tract is twice described as being in section 32. In the prayer of the complaint it is described as being in section 30. .... -
    A copy of the mortgage was exhibited with.the complaint. The precedent for the original decree and the decree itself shows that the 40-acre tract was described as-being in section 32. The same mistake was carried into the advertisement of the sale of the land by the commissioner, in the report of sale by the commissioner, and in the execution -and approval of the deed from the commissioner to J. W. Fryer as the purchaser at the sale. There was a default decree in the foreclosure suit, -which was entered of record on a regular day of an adjourned-term of the Conway Chancery Court held in -May, 192L

      'Subsequently the clerk of the chancery court discovered that the record of the proceedings in the foreclosure suit showed the 40 acres of land in question to be described as in section 32 instead of section 30, and he corrected the decree of the court so as to make' it section 30, instead of section 32, to correspond with the description of the land in the mortgage as it appeared of record. The clerk also corrected the report of sale and the deed made by him as commissioner under the sale. He also corrected the order of the court approving the sale so as to make it read as if the land was in'section 30, instead of section 32. These corrections were made after the term at which the proceedings were had had expired, and without any permission from the court to make the alterations.
    Upon proof of these facts, the chancellor opened the foreclosure decree and set it aside, together with all the subsequent orders and proceedings in the case.
    It was further ordered and decreed that Loranzy Lambert and Belle Lambert should be granted a new trial, and be permitted to interpose their defense to the mortgage foreclosure suit on said land brought against them by J. W. Fryer, As above stated, the .case is here on appeal.

      Edward Gordon, for appellant.

      Strait do Strait, for appellee.
   Hart, J.,

(after stating the facts). The decision of the chancery court opening and setting aside the decree, and the subsequent proceedings in the mortgage foreclosure suit as to the 40 acres of land in question, was correct. Gourts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was, possesses the undoubted power, at any time after-wards, to make a new record. There is no reason why the same rule should not apply when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than' the one pronounced by the court. Bobo v. State, 40 Ark. 224.

In discussing this subject in the case of Hollister and Smith v. Judges of the District Court of Lucas County, 8 Ohio St. 201, the court said:

“Every court of record has a supervisory and protecting-charge over its records and. the papers belonging to its files; and it may at :any time direct the correction of clerical errors, or the substitution of papers in case the originals are purloined or lost; and, in the exercise of the same authority, in case the records or files should be fraudulent or otherwise improperly altered o.r defaced, may direct their correction and restoration to their original condition. And, in making such corrections, the clerk is under the control and authority of the court. ’ ’

But such power must be exercised by the court, and the clerk of the court has no authority on his own. responsibility and without an order-or direction' of the court to amend, change, or correct the judgment record. 34 C. J. pp. 71 and 221 and cases cited. The reason is that a court cannot delegate its judicial functions to its clerk, so that he may alter or correct a .judgment record, except in a purely clerical way.

This is not a case like .that of Kennedy v. Knight, 21 Wis. 340, 94 Am. Dec. 543, -where there was a clerical error in the judgment foreclosure describing one tract of land mortgaged as in range 4 east; whereas it should have been range 5 east. The court said that the false description would probably not vitiate a deed given of this tract, as the county, section, and township were correctly given, and that the error was purely clerical. In such cáse the clerk in correcting the clerical error is''presumed to act under the directions of the court.

In the present case,, the error was not merely clerical,' but was substantial. There was no land in section 32 owned -or claimed to be owned by the defendants in the foreclosure suit, and they were advised by their attorneys that they need not make any defense to the action. The decree of the court described the land as being in section 32, and it was a mere nullity, in so far as it affected the land in section 30. The clerk transcended his authority in changing the decree from a decree of foreclosure of 40 acres of land in section 32 to-that of 40 acres in section 30, and what purports tó be, the corrected decree is without effect and absolutely void. Pressed Steel Car Co. v. Steel Car Forge Co., (3 Cir. Ct. of Appls.), 149 Fed. 182, and Rockwood v. Davenport, 37 Minn. 533, 5 Am. St. Rep. 872.

■ Counsel for the plaintiff in the foreclosure suit claims that the 40 acres of land in controversy are 'correctly described in the mortgage as being in section 30. Conceding this to be true, the plaintiff in the foreclosure suit could not avail himself of a foreclosure decree.of a different 40 acres of land.. If ■ the action of the clerk in altering the decree is a mere nullity, the case stands as if no foreclosure decree had been rendered with respect to the 40 acres in controversy. . ' . ;

The action of the clerk, however, in changing the decree puts an apparent cloud upon the title of the defendants, and the court properly, after hearing the proof on the question, directed that the decree as altered by the clerk should be set aside, and,'inasmuch as'there was no proper foreclosure decree with respect to the 40 acres in controversy, gave leave to- the parties to proceed as if no such decree had ever been rendered or entered' of record.

It follows that the decree must be affirmed.


author: .Hart, J.

text:
    Ex parte Grayson
    Opinion delivered November 30, 1925.
    1. Ferries — right' to keep. — Under Crawford & Moses’ Dig., § ■ 4694/ the preference right to keep a public ferry is given to the person owning the land fronting on any navigable stream, and, if .he.owns or controls the land on both .banks, he is entitled to the exclusive right of ferriage at such place.
    2. Ferries — continuance and discontinuance. — While public ferries are established for the accommodation of the public rather than for the gain arid advantage of individuals, yet, when a ferry franchise is once granted and a ferry is established under it, the - . privilege continues, subject to. the power of the county court to discontinue the same when the public interest, or convenience demands it.
    3. Ferries-t-arbitrary discontinuance. — A county court has no power arbitrarily, to discontinue a ferry franchise by refusing ! to grant the annual license for its exercise, in the absence of evidence .showing that such discontinuance is required by the public interest Or convenience.
    Appeal from Woodruff Circuit Court, Northern District; E. D. Robertson, Judge;
    reversed.

      John E. Miller, and Culbert L, Pearce, for appellant.
    • W. J. Dung cm, amicus■ curiae.

   .Hart, J.

T. E. Grayson prosecutes this appeal to reverse a-judgment of the circuit court denying and dismissing his application to operate a ferry across White River at the mouth of Taylor’s Bay in Woodruff County; Ark...

On July 17, 1925, T. E. Grayson filed his application for his annual license to operate a public ferry across White River at the mouth of Taylor’s Bay in Woodruff County, Ark. His petition alleged that he owned the land on ’both banks of the river at that place, and that there was not then in operation any ferry on said river within one mile of the land in his possession on both banks of the river; that he had heretofore operated a public ferry under an annual grant of license by the county court; that the operation of a ferry at that point was necessary for the public convenience, and that lie had the exclusive right to operate a ferry at that point. He filed the bond required by the. statute. On the same day his application was heard by the county court, and a judgment was entered denying him license to operate a ferry'as prayed for in his petition..' Gray-son duly prosecuted an appeal to the circuit, court.

T. E. Grayson was a witness for himself. .According to his testimony, he had been operating a ferry at. the mouth of Taylor’s Bay on White River near Augusta for four years under an annual license from the county court. People and property are conveyed across the river and the mouth of Taylor’s Bay at the same time. T. E. Grayson is in possession of. the land on both banks of the river at that point, either by deed or by lease. He was ready to pay the annual license fee for operating the ferry. During the preceding year, from ten to fifteen persons a day used the ferry, and the travel consisted of people from all the country.

On cross-examination he testified that the people living between the Bay and east of White River only crossed the Bay. The river is entirely in Woodruff County at the point where the ferry is located.

Other witnesses corroborated the testimony of T. E. Grayson, and in addition testified that the. operation of a ferry at that point was necessary for the public convenience ; that the road leading from Augusta to this ferry had been in use for forty or fifty years, and that the road on the west of the river from the ferry had been there about the same length of time. The road on the west side of the ferry forks, and one prong runs in a northwesterly direction, and the other runs in a westerly direction. There is another ferry, on White River near Augusta which is four and one-half miles by water and two and one-half by land from the ferry in question. This was all the testimony introduced on the question.

Under our statute the preference right to keep a public ferry is given to the person owning the land fronting on any navigable stream, and, if he owns or controls the land on both hanks, he is entitled to the exclusive right of ferriage at such place. Crawford & Moses’ Digest, § 4694.

The preference which the statute accords to Grayson as owning and controlling the land on both banks of the river was observed 'by the county court in granting him a license to operate a ferry at that place. The ferry so'established was, not within one mile of any other public férry, and he had held and enjoyed the exclusive right to operate such ferry for four years prior to his application for his annual license in the present case.

" It is true that public ferries are established for the accommodation of the public, rather than for the gain and advantage of individuals; but it is the settled law in tins State that when a ferry franchise is once granted, and a ferry is established under it, the privilege continues subject to the power of the county court to discontinue the same when the public interest or convenience demands it. Murray v. Menefee, 20 Ark. 561; Lindsay v. Lindley, 20 Ark. 573; Bell v. Clegg, 25 Ark. 26; Shemwell v. Finley, 95 Ark. 342; and Munn v. Shults, 130 Ark. 291.

While the county court has the power to discontinue a ferry franchise by refusing the annual license for its further exercise when the public welfare requires it, still there must be some foundation in fact for the exercise of such power.

: In the case at bar, Grayson adduced evidence to sustain his ferry; and none whatever was introduced tending to show that the public convenience or welfare required it to be discontinued. Under these circumstances the action of the county court in refusing to grant the license was an arbitrary act on its part, and the action of the circuit court to the same effect was also arbitrary in law, because no evidence was introduced tending to show that the public convenience or welfare would be promoted by denying the right of Grayson to operate the ferry at the place where it had been established and operated for several years next preceding Ms application for Ms annual license under the statute.

It follows that the judgment will he reversed, and, inasmuch as the cause appears to have been.fully developed, the circuit court will be directed to enter a judgment in favor of T. E. Grayson and certify it down to the county court, to the end that his annual ferry license may be granted. •


author: ■Smith, J.

text:
    Swan v. Ozark Road Improvement District.
    Opinion delivered November 30, 1925.
    1. Highways — issuance op bonds by improvement district. — The Harrelson Act (Spec. Sess. 1923, No. 5) prohibiting road improvement districts which had not let any contract, actually doné construction work, or issued, sold or delivered bonds, from making improvements without the consent of a majority of. landowners, does not prohibit commissioners of such a district .from issuing additional bonds to complete an improvement where the district had previously to passage of the act assessed betterments ’ and issued bonds; the assessments having been made on the assumption that this contemplated improvement would be completed.
    2. Highways — issuance op bonds. — Issuance of bonds for .improvement of roads, though requiring an increase in the percentage of betterments to be paid each year, would not be enjoined as being confiscatory, since the protesting landowners had permitted the assessments to be made without protest.
    Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Eugene Sloan and J. G. Waskom, for appellant.

      G. T. Carpenter and Chas. D. Frier-son, for appellee.
   ■Smith, J.

The Ozark Trail Road Improvement District of Poinsett County was organized by special act No. 277, of the General Assembly of 1919., Road Acts, p. 1130. Additional laterals were provided for and certain sections of the original act were amended by act No. 249 of the unpublished acts of the special session of the year 1920. Additional territory, as well as additional laterals, were taken in and other changes were made by act No. 475 of the 1921 session of the General Assembly, which provided for a new and general reassessment of all benefits of land and real property within the entire district. Special Acts 1921, p. 1000.

The principal road of the district was a concrete highway from Marked Tree to the Crittenden County line, but the plans of the district called for the construction of several laterals. Bonds were issued in a sum exceeding seven hundred thousand dollars, and this money was expended in the construction of the concrete part of the road and in draining and grading the lateral roads which had no hard, surface, of any kind.

At the 1925 session of the General Assembly act No. 106 was passed, which amended in several particulars the prior acts relating to this improvement district. Acts 1925, page 315. ¡Section 1 of this amendatory act removed'the'old commissioners and appointed new ones. The commissioners, after qualifying in the manner required by the act of 1925, caused plans to be prepared for hard surfacing the laterals, and advertised an offering of additional bonds of the district for sale in the sum of $125,000. ’.

Certain landowners in the district brought this suit to enjoin the issuance and sale of these additional bonds, alleging that the district was governed by the provisions of § 25 of act No. 5, Acts Special Session 1923, page 11, commonly known as the Harrelson law. By this section it is provided that any road improvement district which had not, at the time of the passage of that act, let any construction contract, or had actually done construction work, or had issued, sold or delivered the bonds of the district, should not proceed with the construction of the improvement, unless a majority in number and in value of the landowners in the district should vote that the commissioners proceed with the construction of the improvement.

The protesting landowners in the instant case alleged that, prior to the passage of the Harrelson act, the improvement district in which their lands were situated had completed the entire improvement, in so far as the improvement was covered hy any plans which had ever been prepared and approved, and that because .of the provisions of the Harrelson act there was no authority in law for the commissioners’ to hard surface afiy of the laterals not covered by plans calling for this improvement, inasmuch as no election of the landowners had been held. ■ . - -

, The testimony shows rather clearly, we think', that it wtas always the intention of the commissioners of the district to put gravel on the laterals, and that the betterments were assessed on the assumption that this would be done; but the testimony also establishes the facts that-iio plans calling for this- surfacing and providing specifications therefor were ever adopted, or were in existence at the time of the first bond sale. . The court’ helow therefore found — and properly’ so- — that there were no plans for hard surfacing the lateral roads prior-to.the passage of the act of 1925. The commissioners appointed by this act caused plans- to be prepared and filed for graveling the lateral roads. • ■

The landowners who seek to enjoin the improvement of these laterals say this work is, in effect, a new improvement, and that the commissioners -are-'-without power to coiastruct it because this improvement wasmot a part-of the original plans, and, inasmuch as- the original "plans had been completed when the Harrelsoii act -was passed, the commissioners cannot do work’- not provided for in the original plans without -first securing, the-consent- of the landowners, as provided by the Harrelson a-ct. =

After hearing the testimony .in the case'the court made the following findings of fact.

First. The court finds that' the plans of the ’ district as filed did not embrace graveling the laterals until amended recently, and that such amendment is the basis for the additional bond issue now assailed.

Second. The court finds that, the plans of the district as actually filed, and not including the recent amendment, have not 'been fully executed.

Upon these findings of fact, the court dismissed the bill to enjoin the commissioners as being -without equity, and this appeal is from that decree.

It is conceded that the $125,000 additional bond issue will not require any increase in the assessment of benefits, the betterments originally assessed being in excess of the outstanding bonded indebtedness and this additional bond issue, but there will be required an increase of about 11 per cent, in the percentage of betterments tobe paid each year. .

As we have said, the betterments in the entire district were assessed upon the assumption that the laterals were to be improved. This assessment was, of course, irregular and unauthorized, because no plans providing for this part of the improvement had been prepared and adopted and filed as required by law. The failure to do this would have afforded the landowners-adjacent to and benefited by these laterals just cause to protest against their -assessments, provided they did so within the time and manner limited by the law under which the district was. organized.

The controlling question on the present appeal is whether the power of the commissioners to improve the laterals had been destroyed by the provisions of' the Harrelson act. Unless this has been done, the special acts relating to this district give the commissioners power to make this improvement, and this is true, notwithstanding the original plans did not call for gravel on the laterals, this being true because the right to change the plans is expressly conferred.

Section 4 of act 277 of the Road Acts of 1919, vol. 1, page 1130, which is the act creating the district, makes it the duty of said commissioners “to proceed as rapidly as possible with the improvement of the roads herein-before described, improving them in such manner as they deem to the best interests of the property owners. * *

Section 2 of act 249, approved February 20, 1920, also provides-that “the commissioners shall grade, drain and contract the laterals authorized by this section of this act in such manner and of such materials as they shall deem for the. best interests of the property owners of the district.”

■ This express authority was carried forward in the amendatory act No. 475 passed ait the 1921 session of the General Assembly, Acts 1921, page 1000, for by § 3 of this act it is provided that “it is hereby made the duty of the commissioners of the Ozark Trail Road Improvement to complete said roads, and to cover so much thereof as is advisable with a hard surface.”

We are of the opinion that the provisions .of the Harrelson act did not apply to this district. It. had actually issued and delivered over, seven hundred thousand dollars in bonds at the time that act was passed, and it had not completed all parts.of the improvement called for by the valid plans of the district. Indeed, the chancellor found that the, original and approved plans of the district had not been fully completed at the ■ time of-the hearing from which this appeal is prosecuted, and the testimony sustains that.finding of fact. This being true, the Harrelson act, by the express provisions of § 25 thereof, could not and.did not apply to this .district, and the commissioners remained vested,, notwithstanding the Harrelson act, with all the powers conferred by the original act creating the district and the subsequent amendatory acts, and, as we have already seen, these acts gave the commissioners power to place gravel on such of the laterals as they saw proper to' do.

This view is" reenforced by a consideration of the provisions of act 106 of the Acts of 1925. This act is a legislative finding of fact that the Harrelson'act did not apply to this district; But, if it did Originally apply, the act of 1925 must be regarded as amendatory thereof, and operating to take this district out of the provisions of the Harrelson act. .

’ .-This act 106 contains fifteen sections, and, is rather comprehensive, .in itself. It clearly recognized that the district had riot completed, the improvement which it was organized to construct.1 Section 7 contains provisions and- limitations under which contracts exceeding five hundred dollars in cost may be let, and § 13 contains authority for the issuance of additional 'bonds and limitations as to the price for which they may be sold.

' It is insisted that the decree in the instant case is in conflict with the decree in the case of Boyd v. Ozark Trail Road Improvement District, 168 Ark. 525. In the former case property owners in the district, whose lands were adjacent to a lateral which had only been drained arid graded, complained of their assessments because the lateral had not been hard, surfaced; the assessments being based upon the theory that this would be done.’ There- was involved in that case ffo question of the power of the commissioners to hard surface the lateral. The complaint of the landowners was that-this had not been done. The same chancellor presided in' the trial .’of both cases in the court below, and we' think there is’no inconsistency in the decrees in the two' cases, and certainly nothing was decided by us in the former appeal which supports the contention of the protesting landowner here .that the commissioners are without power to do the thing which it was there contended had riot been done, that is, to hard surface the lateral. '

, Relief in the former case was denied the protesting landowners on the theory that the assessment of benefits from which they appealed was not a general assessment, but.was.a me.re correction .of obvious errors, and that the landowners should have appealed from the prior general assessment, .and,, as.they had-not, done so within the tirpe limited for that, purpose, they were, barred by the limitation on the right of appeal imposed by the acts under which the assessments had been made.

It is finally insisted that the increase in the per cent, of the betterments which it will be necessary to collect to improve the unsurfaced laterals will make the entire tax in the district confiscatory. A sufficient answer to this contention is to say that this change in plans does not involve any increase in the assessment of betterments, and the landowners here protesting permitted their assessments to become final by failing to complain against them within the time allowed them by law for that purpose. Indeed, the equities of the case appear to be against the protesting landowners in the present case. If the relief prayed by them were granted, the owners of land adjacent to the laterals would be required, under the decree in Boyd v. Ozark Trail Road Imp. Dist., supra, to pay taxes based upon the assumption that the laterals would be improved which, according to the contention of the protesting landowners in the instant case, should not be done, because this part of the improvement was not covered by the original plans adopted and approved Iby the district. But, notwithstanding the fact that these plans 'did not call for this improvement, authority to improve these laterals is found in the provisions of the act allowing the commissioners to change the plans. There is no constitutional objection to this legislation, as the improvements may be constructed within the betterments already assessed.

The decree is correct, and is therefore affirmed.


text:
    Henry Quellmalz Lumber & Manufacturing Company v. Briney.
    Opinion delivered November 30, 1925.
    1. Stipulations — agreement to- abide event of another suit.- — In case of .suits actually pending-, .the parties may agree that one suit .shall abide the event of another suit involving the same question.
    2. Stipulations — binding effect. — In an action for conversion, where another suit was pending between the same parties, and rights therein were to be determined by the same contract, a stipulation entered into in an action for conversion to -abide the result in another suit is conclusive, and the court properly directed a verdict in accord therewith.
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    J. R. Briney sued tbe Henry Quellmalz Lumber & Manufacturing Co., to recover tbe sum of $660, tbe value of 25,000 feet, of oak logs alleged to bave 'been taken by tbe defendant an-d converted to its own use.
    Tbe defendant denied tbat tbe plaintiff owned tbe logs, and by way of cross-complaint alleged tbat it bad bought tbe logs from Geo. A. Burr and W. O. Poole ■ without knowledge of tbe plaintiff’s right to tbe logs.
    Tbe prayer of tbe cross-complaint was tbat, in case tbe defendant is held liable to plaintiff for tbe value of the logs, tbe judgment should be against said Burr and Poole.
    During tbe pendency of tbe suit tbe parties entered into a stipulation as follows:
    i£It is agreed by and between Puhr & Futrell, attorneys for the plaintiff, C. T. Bloodwortb and Geo. A. Burr, attorneys for tbe defendants, F. G. Taylor, attorney for tbe plaintiff, tbat this cause abide by tbe decision of tbe Supreme Court of Arkansas, or tbe chancery court if no appeal is taken, in the case of J. B. Briney v. Henry Quellmalz Lumber Go. et al., recently decided in tbe chancery court for tbe Western District of Clay County, Arkansas.

      “That this cause remain on the docket until such time as a decision is reached in said cause by the Supreme Court of Arkansas, or in the event an appeal is not taken to the Supreme Court and the decision of the chancery court becomes final.”
    The decree in the case referred to in the stipulation was affirmed in 157 Ark. 336, under the style of Henry Quellmalz Lumber & Mfg. Go. v. Briney. In that case Briney had sued the Henry Quellmalz Lumber & Manufacturing Co. for an alleged 'balance due him upon a written contract for the manufacture and delivery of certain lumber. The suit was ,defended on the ground that the defendant was compelled to purchase a title superior to that of Briney from Neo. A. Burr and W. 0. Poole, who had a lien for the purchase money on the timber out of which the lumber was manufactured. The court held that, under the contract introduced in evidence, Burr and Poole were estopped from asserting a lien on the logs.
    The contract recites that Burr & Poole had conveyed the timber to a trustee in bankruptcy and that Briney had purchased the logs, which had been cut, from the trustee. The court therefore held that it was unnecessary for the Henry Quellmalz Lumber & Manufacturing Co. to purchase the timber from Burr & Pode, and the decree of the chancery court holding that Briney had title to ,the logs was affirmed.
    The record shows that Briney acquired the logs in controversy in this case under the same contract as was involved in the chancery case, which was affirmed by this court as above stated. The circuit court directed a verdict in favor of the plaintiff, Briney, and only submitted to the jury the question of the amount of damages to be recovered by him. The case is here on appeal.

      G. T. B'loodworth, for appellant.

      F. G. Taylor and Robert Fuhr, for appellee.
   Hart, J.,

(after stating the facts). The circuit court was right in directing a verdict for the plaintiff. The amount and value of the logs taken were shown by the undisputed evidence. The ruling of the court was based upon the stipulation which we have copied in our statement of facts. The stipulation in express terms provides that the case at bar shall abide by the decision of the Supreme Court in the chancery case referred to in our statement of facts.

It is well settled that, in cases of suits actually pending, the parties may agree that one suit shall abide the event of another suit involving the same question. Webster v. Goolsby, 130 Ark. 141; Stone v. Bank of Commerce, 174 U. S. 412; and Knott v. St. Louis Sw. Ry. Co., 230 U. S. 509.

No contention is made by counsel for the defendant that this is not the law. His sole reliance for a reversal of the judgment is that the issues were not the same in the two cases. We can not agree with counsel in this contention. As we have just seen, a judgment entered upon the stipulation of the parties to a pending suit is in fact a judgment by consent. The record shows that the parties to both suits are the same, and in each suit their rights are to be determined by the same contract. The plaintiff in the present suit claimed the log's in each case under the same written contract, and the defendant claimed in each case that under this contract Burr & Poole had a lien on the logs, which was superior to the title of the plaintiff. The defendant bought whatever title Burr & Poole had, relying upon its being established in the courts as superior to that of the plaintiff. Hence the stipulation was entered into between the parties that the present suit should abide the result of the chancery suit.

The decree in the chancery case was affirmed in this court, and this settled the rights of the parties in the present suit. The issues of law in the two suits were precisely the same. Indeed it would seem that there was no use whatever in entering into the stipulation involved in this suit if the title to the logs was not to be determined by the result of the chancery suit.

The question of the value of the logs converted by the defendant was submitted to the jury under proper instructions, and the finding of the jury on this point is supported by the evidence.

It follows that the judgment will be affirmed.


author: Smith, J. Smith, J.,

text:
    Fidelity & Deposit Company v. Fairfield.
    Opinion delivered November 30, 1925.
    Appeal and error- — -former decision as law of case. — Where, on a former appeal in a chancery ease, the Supreme -Court affirmed a ■decree of the court below that a sum found due to an estate by the administrator should bear interest from the date of the decree, instead of from the date of the judgment of the probate court, such ruling became final after the lapse of the term, and, though erroneous, could not be amended, either in the chancery court or in the Supreme Court on a second appeal.
    Appeal from Mississippi Chancery Court, C'hickasawba District; J. M. Putrell, Chancellor;
    reversed.

      J. T. Goston, for appellant.

      Little, Buck & Lasley, for appellee.
   Smith, J.

A suit was brought in the chancery court to surcharge and falsify the settlement account of W. A. Anthonyas administrator of the estate of D. P. Beard. The suit was brought by Fairfield, the administrator in succession, Anthony having resigned, and the chancery court found that credits aggregating $8,417.18 had been erroneously allowed Anthony on the approval of his-settlement''by the probate court. An appeal was prosecuted to this court, and we held that the chancery court was in error in refusing to allow the credit of $8,417.18, but in all -other respects the decree was affirmed. Fidelity & Deposit Co. v. Fairfield, 164 Ark. 498.

After the affirmance of this decree Fairfield, as administrator, filed a petition in the chancery conrt to modify the original decree of that court — the decree from/which the appeal to this court had been prosecuted. It was insisted in that proceeding that the decree of the chancery court erroneously recited that the sum found due by the administrator should bear interest “from this date, ’ ’ that is, the date of the rendition of the decree in the chancery court, whereas the court had, in fact, decreed that the sum found due by Anthony should bear interest from the date of the judgment of the probate court finding and declaring the sum due by Anthony and directing its payment to Fairfield as his successor.

The chancellor found that petitioner was entitled to the relief prayed and directed that an order should be entered nunc pro tunc correcting the decree of the chancery court by allowing interest from the date of the probate judgment. The surety on Anthony’s bond as administrator has appealed from that order.

It is insisted that the testimony did not warrant the finding of the court below, and that nothing more was shown than that the chancery court had erroneously fixed the date from which interest should be calculated.

"We do not set out the testimony on which the finding was made, as we regard it as unimportant. The fact is that the decree appealed from to this court directed that the interest should be calculated from the date of that decree, and this decree, although it m&y have been erroneous in the respect indicated, was affirmed by us after modifying’ it by directing- that the administrator have credit for the disputed claims against the estate which he had paid. «

The decree of this court pronounced pursuant to our opinion on the former appeal superseded alike the judgment of the probate court and the decree of the chancery court. We adjudged the rights and liabilities of the parties litigant, and the decree of this court was that the decree of the chancery court be modified and affirmed, and our modification did not affect tlie time from which the interest should be calculated.

Our attention was not called to the fact that the decree appealed from erroneously directed that interest be calculated from the date of that decree, instead of the date of the probate judgment directing Anthony to pay over the funds in his hands to his successor, and, without having our attention called to this error, which could have been corrected-by us, we affirmed the decree, in so far as it fixed the point of time from which the interest was to be calculated. The decree of this court on the f ormer appeal is conclusive of the question. The effect of the nunc pro tunc order here appealed from is to amend, not only the first decree appealed from, but also the decree of this court on. the appeal. The chancery court was without jurisdiction to do this.

It follows therefore that the decree of the chancery court amending the original decree by a nunc pro tunc order is erroneous, and it is therefore reversed, and will be set aside and canceled, and the interest will therefore be calculated from the date of the decree appealed from.

Smith, J.,

(on rehearing). In the brief of counsel for appellee in support of the petition for rehearing--it is insisted that we erred in holding that the error complained of was one that could have been corrected on the first appeal, and in support of this contention the case of Foohs v. Bilby, 95 Ark. 302, is cited.

We do not concur in the view of counsel that the case cited has any application here. The Foohs case was a law case; the instant case is one in equity. Upon appeal from the circuit court we do not try the case de novo. We only rqview the errors assigned. In chancery appeals we do try the cause de novo, and, having done so, we enter here the decree which, in our opinion, should have been rendered by the court below; or, in certain cases, we remand the cause with directions to the court below as to the decree to enter. In certain exceptional eases permission is granted to take additional testimony in the court'below. But whatever the order -of this court may be in a chancery appeal, the finding of this court is based upon a trial de novo here.

In the first appeal, reported in 164 Ark. 498, the entire case was before us, and, after a trial de novo, we entered the decree which, in our opinion, should have been rendered in the court below. We held that the administrator had been erroneously denied certain credits which should have been allowed him,' and we modified the decree by allowing these credits, but in all other respects the decree was affirmed. One of the questions necessarily involved on the appeal was the date from which the interest should have been calculated. The chancery court had adjudged that interest should be calculated from the date of the decree in that court; at least the decree so recited. The insistence now is that this was not in fact the decree of the chancery court, and that that court has the right to correct the decree to conform to the adjudication which was in fact made.

But, as we have said, the whole case was before us for a trial de novo, and the date from which interest should be calculated was a question necessarily involved' in the appeal. We affirmed a decree which recited that the interest should be calculated, not from the date of the approval of the administrator’s settlement in the probate court, but from the date of the decree of the chancery court from which the appeal was prosecuted. It is now insisted that it appears, from the testimony taken on the motion in the court below to correct this decree, that interest should properly have been computed from the date of the administrator’s settlement when he was ordered to pay over the funds in his hands to his successor. It was within our jurisdiction to so decree, and we might have done so, had the matter been called to our attention, but it was not, and the effect- of our decree was to affirm that part of the decree appealed from which fixed the date of the decree as the period from which interest should be calculated.

The decree of this court on the first appeal has •become final, and it is now beyond the. power either of this court or the chancery court to correct it. We adjudicated this question on a trial de novo, and this adjudication, even though erroneous, is final, and the motion for rehearing will therefore be overruled.


text:
    Longinotti v. Longinotti.
    Opinion delivered November 30, 1925.
    1. Divorce — effect of condonation. — While one spouse may condone conduct of the other, such condonation does not deprive the aggrieved spouse of the right to a divorce on account of the subsequent misconduct of the offending spouse, and such conduct, -will revive the right to divorce for the condoned offense.
    2. Divorce — condonation-—subsequent misconduct. — Where a husband condoned misconduct of his wife with a paramour, there was an implied agreement that she would not 'afford just cause for him to suspect that such misconduct had not ceased, as would ibe the case where clandestine telephone communications continued between her and her paramour under fictitious names.
    3. Divorce — custody of child. — Under Acts 1921, p. 317, providing that when father and mother are living apart there shall be no preference ip awarding custody of the children, and that the welfare of the children must" be considered first in disposing of their custody, the award to the mother of a fourteen-year old girl who was hostile to the father will not ibe disturbed.
    4. Divorce — allowance for child’s support. — -Where a husband is awarded a divorce against his wife on the ground of adultery, the court’s allowance for support of the child living with the wife should be for the exclusive use of the child.
    Appeal from Garland 'Chancery Conrt; J. P. Henderson, Chancellor;
    reversed in part.

      Martin, Woofton <& Martin, for appellant.

      Murphy & Wood, for appellee.
   ■Smith, J.

This is an action by appellant against appellee for a divorce. Appellant asked the divorce upon the ground of adultery, and alleged that his wife had for many years been unduly intimate with a man named Sam Davis. Appellee denied the allegations of appellant’s complaint, pleaded condonation, and by way of cross-bill prayed a divorce on account of cruelty and personal indignities. -She prayed the court to award her the custody of their only child, a girl now fourteen years old, and that she have alimony and an allowance for the support of the child.

We have before us a record of unusual size — nearly two thousand pages; in fact, there is incorporated in the present record a large portion of the record of the case of Davis v. Davis, 163 Ark. 263, which was also a large record. This case is very intimately connected with that of Davis v. Davis, supra. Appellee w,as the woman forming the triangle in that case, and Davis is the man who fills that position in the present one. We did not set out the testimony in the former case, because we said it involved purely an issue of fact and would serve no useful purpose as a precedent. What we there said is equally true here.

The chancellor prepared an opinion, which was incorporated in the decree of the court» below. In this opinion the chancellor announced his finding of fact that each party had been guilty of such conduct as to afford the other a statutory ground for divorce, that of appellee being the personal indignities suffered at the hands of appellant. But the court found that there had been a reconciliation and condonation, and that each party had thereafter breached the terms of the agreement whereby the reconciliation had beeAeffected, but the court declined to find which party had first' offended in this respect.

Without reviewing the testimony which leads us to our conclusion, we announce our conclusion to be- that the testimony warranted a divorce to appellant -on account of the relation between appellee and Davis, Appellant and appellee are both members of the Catholic Church, and a reconciliation between them was effected- through the offices of a priest of that faith. Appellee had brought suit against appellant for divorce, and had alleged cruel treatment and personal indignities as a ground therefor, This suit was dismissed when the reconciliation was effected. At that time the suit in the case of Davis v. Davis was pending, and appellant was subpoenaed as a witness in that case, and in his deposition he produced letters from Davis to appellee to which we referred in our opinion in that case of Davis v. Davis, supra. Appellant had told appellee that these letters had been destroyed and would be forgotten, as far as it was possible to forget, but appellant had not destroyed them, and, when appellee discovered this fact, she importuned appellant not to produce them in the trial of the Davis divorce case. Appellant disregarded the entreaty, of his wife and produced the letters when his deposition was taken, and, as might have been expected, the harmony of their relation was destroyed.

The testimony shows much in the conduct of appellant, both before and after the reconciliation, which cannot be approved. He struck his wife on several occasions, and once after the reconciliation scalded her with a kettle of hot water. Appellant testified that his wife poured the water on herself in an attempt to pour it on him; but we do not credit his version of this incident. He abused his wife to their infant daughter and appears by his conduct to have estranged the affections of the child, who testified in her mother’s behalf, and was a partisan witness. Appellant caused his wife to be spied upon. He had a telephone connection made with the wire leading to his home, which enabled him to listen in to conversations had between his wife and persons who called her telephone. Appellant told his suspicions to his associates, and when he secured any evidence which he regarded as confirming his suspicions, he poured out his wrath on his wife without spending any of it on the man whom he characterized as her paramour.

The failure of appellant to' destroy the Davis letters pursuant to his agreement to do so, and his statement that he had done so, and his production of them in the Davis case, was an iact of treachery, which weighed heavily with the chancellor in refusing appellant a divorce, as is reflected by the opinion of the chancellor, and this conduct, together with the continued reproaches of appellee by appellant, and his abuse of her in the presence of their child, as well as other persons, and the scalding’ of appellee after the reconciliation, led the chancellor to the conclusion that .both parties were so far to blame that affirmative relief should not be g’ranted to either. .

We have concluded, however, that, while there is much in the conduct of -appellant which cannot be excused, there wias much in the testimony to extenuate it.

The reconciliation occurred in September, 1922, and appellant tfestified that- he soon became convinced that appellee was in communication with Davis, and he attributes his displays of temper to that fact.

After the separation of Davis and his wife had become permanent, Davis ostensibly removed from Hot Springs, where he had long* resided, to Pine -Bluff, where he brought suit for divorce against his wife. Davis moved to Pine Bluff in April, 1922, and returned- to Hot Springs in January, 1923, and it is certain that during this interval many conversations occurred over the telephone between Davis in Pine Bluff and appellee in Hot Springs. The manager of the telephone company in Pine Bluff produced the records of that office showing the number of calls from Pine Bluff calling telephone 1719' in Hot Springs, this being the number of the telephone in appellee’s home. There were 4 -of these calls in April, 11 in May, 12 in June, 6 in July, 5 in August, 4 in September, 3 in October, 2 in November, 4 in December and 2 in' January. A recapitulation of the telephone records showed a total of 53 calls, consuming 473 minutes, and a charge of $71.50 for the messages.. One of these conversations continued for twenty-eight minutes, and a number of them lasted more than twenty minutes, and the average length of the conversation was nearly nine minutes.

None of these calls were made in the name of Davis. On the contrary, we think it quite apparent that a fictitious name was employed by him. Neither appellee nor Davis had any explanation to offer in regard to these calls except to deny that there had been more than three or four conversations between them during the time Davis resided in Pine Bluff, but the telephone records did not show that any call had ever been put in by either for the other, so that a fictitious name must have been employed on the occasions when the admitted conversations took place. All the calls appear to have been from Pine Bluff except the one on July 2, from phone 1719, for Davis at a hotel in Pine Bluff.. This was a reverse message and was'paid for by Davis in Pine Bluff. The call was in the name of Mrs. Sam Davis for Mr. Sam Davis, but, as the telephone records showed that the call was from phone 1719, it appears certain that appellee had used the name of Davis’ wife in putting in the call, and had done this to conceal her identity.

It is insisted that no illicit relation between appellee and Davis was shown after the reconciliation. Indeed, it is insisted that none was shown at any time. We think, however, that this clandestine communication should be interpreted in the light of the prior relationship between Davis and appellee. The fact that it was clandestine and Conducted under fictitious names adds to its significance, and we think justified appellant in concluding that appellee was not keeping faith with him, and had not ceased her relations with Davis, as she promised to do when her previous conduct was condoned.

The law is well settled that either spouse may condone conduct of the other which, but for the condonation, would entitle the innocent spouse to a divorce. But it is equally as well settled that condonation does not deprive the aggrieved spouse of the right to a divorce on account • of the subsequent misconduct of the offending spouse. On the contrary, subsequent misconduct will generally operate to revive the right to ia divorce for the condoned offense.

At § 177 of the chapter on Divorce and Separation in 9 R. C. L. page 384, it is said: “It is well settled that condonation of past matrimonial offenses is impliedly conditioned upon the future good behavior of the offending spouse, and it follows that, if after condonation the offenses are repeated, the right to make the condoned offense a ground for divorce revives. To constitute a revival of the condoned offense, the off ending spouse need not be guilty of the same character of offense as that condoned ; any misconduct is sufficient which indicates that the condonation was not accepted in good faith and upon the reasonable conditions implied..”

In Bishop on Marriage, Divorce and Separation, at § 336 of volume 2, page 163, it is said; “Forgiveness of injury, especially in response to repentance, is deemed in law as well as in morals commendable. And when a married party, knowing the other to have committed an offense authorizing divorce, and having the ability to prove it, continues or renews the connubial intercourse, a forgiveness thereof, technically termed condonation, is 'conclusively presumed. But to prevent scandal in the community, and especially to induce injured consorts to condone this sort of wrong instead of proceeding for a divorce, the law attaches to the condonation' ihe condition that neither the like matrimonial wrong, nor any other of a sort authorizing divorce, nor yet any conjugal unkindness though progressing less far, shall 'be committed by the forgiven party. On a violation of the condition, the original right of divorce revives. Such is the doctrine. The applications of it will somewhat vary with the sex, with the nature of the particular offense, and with the other circumstances.”

Appellant testified that when the reconciliation was effected between himself land appellee through the intervention of the priest, there was an express understanding that appellee should immediately and completely terminate all relations of any kind with Davis, and this fact is not denied. It is only asserted that no improper or compromising relation was ever resumed.

But, as we have said, we think appellant was warranted in concluding to the contrary» There was not only .an express agreement that appellee’s relations with Davis should cease, but there was in law an implied agreement that she would not afford him any just cause to suspect that these relations had not ceased. We think appellant is not to ¡be barred by his condonation under the circumstances of the case from prosecuting this action.'

It follows, therefore, that the decree refusing appellant a divorce will be reversed, and a decree for a divorce in his favor will be entered.

We have been much concerned about the appropriate order to make in regard to the custody and support of the child. The child — a girl — is now in the high school, .and we think her partisanship for her mother and her hostility to her father is such that we should not change the custody of the child, which the court below awarded to appellee, the mother. It is but too often true in cases like this that innocent children are the real sufferers.

The act of March 8, 1921 (acts 1921, page 317) provides that when the father and mother of children are living apart, there shall be- no preference between them in regard to the custody of their children, and that the Welfare of the children must be considered first in disposing of their custody.

We have concluded that the action of the court below in regard to’ the custody of the child should not be disturbed.

The court below assessed all the costs against appellant, and allowed a fee for appellee’s attorney, which is not contested, and these orders are affirmed.

The court also fixed an allowance of $50 per month to be paid appellee for the support of the child. We think appellant should not be required to pay anything to appellee, and the allowance made by the court will be decreed to be for the exclusive use of the child.

We concur in the finding of the court below that both parties were at fault, but we think appellee was the •greater and the first offender, and we have concluded, under the case made, that a decree of divorce should be awarded appellant, and it will be so ordered.


author: Humphreys, J.

text:
    O’Bar v. Hight.
    Opinion delivered November 30, 1925.
    1. Deeds — merger op contract. — A contract providing for a conveyance of land, upon' payment of the consideration, with a clear abstract of title, became merged in the deed subsequently executed, and a suit for defect in the title should be based upon the covenant of warranty in the deed, and not upon the prior contract.
    2. Appeal and error — harmless error. — The error of admitting hearsay evidence in an action to recover for breach of warranty was harmless where plaintiff was entitled to recover under the undisputed facts.
    3. Appeal and error — -harmless error. — In an action for breach of a contract to convey and for breach of warranty in a deed, the-error of submitting questions whether the contract was breached, when the contract had been merged in the- deed, and whether a guardian’s sale was void, where the plaintiff under the- undisputed facts was entitled to recover for breach of -a warranty in the deed, held harmless.
    4. Appeal and error — remission op part op recovery. — Where, in an action for breach of warranty against incumbrance, the jury were erroneously allowed to award loss of profits in a resale of the land an-d attorney’s fee as damages, the error may be cured by reducing the judgment.
    5. Guardian and ward — unlawful sale of ward’s land. — -Under Oklahoma Rev. L. 1910, § 6653, allowing a minor’s land to 'be sold -only for support anid education or for reinvestment, a sale by guardian for the purpose of paying a mortgage indebtedness conferred no title.
    6. Covenants — damages for breach. — The correct measure of damages for breach of a warranty is either the consideration’ paid, with interest, or, in ease the land is retained, the expense of procuring the outstanding title or correcting the -defects in the title.
    7. Covenants — damages for breach. — Damages for breach of a warranty against incumbrance-s -do not include loss of profits on resale of the property or attorney’s fees for enforcing the breach.
    Appeal from 'Sebastian Circuit Court, Ft. Smith District; John.E. Tatum, Judge;
    affirmed with modification.

      Chew & Ford, for -appellant. •

      Roy Gem and J. A. Gallaher, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellants in the circuit court for the Fort Smith District of 'Sebastian County to recover damages for an alleged breach of contract to convey and furnish a clear abstract of title to the S % of the NE y2 of section 19, township 8 north, range 26 east, in LeFlore County, Oklahoma, which appellant purchased from appellee, and for a breach of the warranty under an Oklahoma warranty deed. The contract for the sale and purchase of the land was of date March 19, 1920, and the warranty deed, executed and delivered pursuant thereto, was ’ of date June 7, 1920. The contract provided for a conveyance of the land upon payment of the consideration with a clear abstract of title. The ¡abstract of title was delivered for examination prior to the execution and delivery of the deed. The deed warranted the title to be “forever free, clear, and discharged of and from all former grants, charges, taxes, judgments, mortgages, and other liens and incumbrances of whatsoever nature except a certain mortgage for $500.” We think the contract merged in the deed, and the suit must be in effect a suit upon the warranty. It was alleged that appellant, J. M. O’Bar, purchased the.land at a void guardian’s sale, ¡and for that reason did not own the legal title to the land at the time he conveyed it to appellee; and that under the Oklahoma law this constituted a breach of his covenant of warranty from the date of his deed to appellee.

Appellants filed an answer denying that the guardian’s sale of the land was void, and this formed the real issue in the case before the trial court.

The cause was submitted to a jury upon the pleadings, testimony,- and instructions of the court,- which resulted in a verdict and consequent judgment against appellants, from which ah appeal has been duly prosecuted to this court.

In the course of the trial the court, over the objection and exception of ¡appellants, erroneously admitted hearsay evidence, erroneously submitted to the jury the question of whether appellants breached the contract of sale ¡and purchase of the land when the contract had merged in the execution and delivery of the deed, erroneously submitted to the jury the question of law as to whether the guardian’s sale of the land to the appellant, J. M. O’Bar, was void under the law of Oklahoma, and .erroneously submitted to the jury the questions of law as to whether appellee could recover the 1-oss of profits in a resale of the land and an attorney’s fee in this’case as damages on account of a breach of covenant of warranty 'contained in the deed: The errors of the court mentioned above, except the last two, were harmless, as appellee was entitled to recover on the breach of warranty in the deed under facts appearing in the record which are undisputed* The errors last mentioned, while, prejudicial, may be remedied by a reduction of the .judgment in a sum .equal to-the amount of the two items. Justice, therefore, may be done the parties without a reversal of the judgment in its entirety, and a remand of the cause for la new trial.

■The record reflects that J. M. O’Bar purchased the land in question at a guardian’s sale which was ordered and confirmed by the county court of LeFlore County, Oklahoma, on the petition of Mrs. Grace Wright, who was the duly appointed, qualified, and ¡acting guardian of the Morris heirs. The petition for the sale alleged that the ancestor of the minors mortgaged this land together with' other lands for $2,500, which would soon be due, and the guardian prayed for a private sale of the land to pay said mortgage indebtedness. The sale was ordered, made, and confirmed for that'purpose. Under the statute laws of Oklahoma lands of minors can only be sold for their support and education or for reinvestment. Section 6653, vol. 2 of Revised Laws of Oklahoma, 1910. It appears on the face of the petition and throughout the proceedings that the county court was without jurisdiction to order the sale for the purpose of paying off an indebtedness of the minors’ ancestor. It was said in the case of Lee v. Tonsor, 62 Okla. 14: “Where it affirmatively appears from the face of the record that the court is without power to make the order that was made, such order is void aud subject to collateral attack.” No title passed to J. M. O1’Bar'under the sale; so he did not have a legal title to the land to convey to appellee. A recovery may be' had in Oklahoma on a breach of warranty in a deed before an eviction. Faller v. Davis, 30 Okla. 56. The record further shows that the appellee sold and conveyed the land to Dr. E. F. Hodges for a consideration of $6,000 before the breach of warranty ■ was discovered. When it was discovered that the guardian’s sale was void, appellee’s attorney notified J. M. O ’Bar that the title would have to be corrected, and that, unless he would cooperate with appellee in bringing, the necessary court proceedings, appellee would bring suit against him for a breach of warranty under the Oklahoma statutes. O’Biar refused to assist in perfecting the title, claiming that it was not defective. Thereupon appellee brought suit in Oklahoma in the name of his grantee, Dr. E. F. Hodges, to correct the defect, and obtained a decree quieting his title. Dr.. E. F. Hodges accepted the title thus quieted on condition that appellee would deduct $655.29 from the purchase price. Appellee allowed the deduction, and, in addition, expended in perfecting the title the following amounts, to-wit: $326.50 for attorney’s fee, $32.90 for court costs, and $16.50 for 'back taxes, making a total including the deduction of $1,031.19. This suit was then brought for that amount and an attorney’s fee of $250 on account of the breach of warranty. A recovery was had for these items. The correct measure of damages for a breach of the warranty was either the consideration paid with interest, or, in case the land was retained, the expense of procuring the outstanding, title or correcting the defects in the title. The loss of profits on a resale and an attorney’s, fee for enforcing the breach were not protected by the covenant of warranty. It was error to allow a recovery for these items..

The judgment will therefore be reduced by the total amount of these items, and, as modified, will be affirmed.


text:
    Chipman v. Cook.
    Opinion delivered November 30, 1925.
    1. Receivers — liability.—A receiver is the ministerial officer of the court appointing him, and must obey its orders, and does not incur personal liability in so doing.
    2. Receivers — liability.—A receiver incurs no personal liability in turning over money in his hands to one of the parties in 'Obedience to the judgment of the court, though such judgment was afterwards reversed, where the judgment was not suspended by order of the court or toy supersedeas bond, as the judgment was valid and .binding until reversed or superseded. -
    Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.

      S. E. Gilliam, for appellant.

      J. R. Wilson and E. W. McGough, for appellee.
   Humphreys, J.

A decree was obtained in the chancery court of Union County by Belle Cave against J. R. Cook on December 18,1922, for $2,850, and for the return of the Elks Hotel, which the court prior thereto had placed in the hands of a receiver pending the result of litigation ¡between said parties growing out of a lease of said. property. The decree also directed 'the receiver to pay Belle Cave all the receivership funds in his hands, after paying the receivership expenses and court costs, to be applied on her judgment. On the day of the rendition of the judgment J. D. Cook prayed for an appeal to the Supreme Court, which was granted. A ■ stay of execution was not requested at the time until a supersedeas bond could be filed. On the 22nd day of December, 1922, four days after the rendition of the ■ judgment, the receiver returned the hotel property to Belle Cave and paid her $1,250 out of the. receivership funds on her judgment, leaving a balance of $620.17 in his hands after paying the expenses of the receivership. On the 2nd day of February, 1923, the receiver, E. D. Chipman, filed his final report showing these facts. The receiver took credit in the report for $1,125 for his own services. J. R. Cook filed an exception to this item of credit in the report. The trial court heard the exception and allowed the receiver $1,000 for his services, after which he approved the report in all things. Both parties excepted to the amount of the allowance, and prayed an appeal to the Supreme Court, which was granted. J. R. Cook then requested, and was given ten days in which to file a supersedeas bond. The bond was filed on the 12 th day of February, 1923, and within the time allowed in the order approving the receiver’s report, and was the only supersedeas bond filed in the • case. Belle Cave retained possession of said hotel about two months after the receiver turned it back to her before she sold same.. During the two months, she retained the possession thereof, she entered a credit on her judgment against Cook for $825, the rental value thereof under the original lease. She also entered a credit on her judgment for $1,250, which the receiver had paid her on the order of the trial court in the decree of December 18, 1922. J. R. Cook prosecuted his ¡appeal from the original judgment and the order fixing the receiver’s fee, and obtained a reversal thereof with directions to the trial court to render a decree in his favor against Belle Cave for the amount due and unpaid under the original lease, and a reduction of the allowance to the receiver for services to $500. Cook v. Cave, 163 Ark. 407. The trial court complied with the mandate of this court in these respects. When the mandate was filed with the trial court, J. R. Cook, the appellee herein, hied a petition seeking to recover a*personal judgment against the receiver E. D. Chipman, and the bondsmen, John A. 'Cobb and T. W. Rives, for the sum of $1,250, which the receiver had paid to Belle •Cave under the decree of December 18,1922, and the sum of $825 as rent on the hotel for the time Belle Cave occupied same after he returned the possession thereof to her. It was alleged in the petition that the receiver should have retained the possession of the hotel,, and collected the rents thereon during this period; also that the receiver exceeded his authority in paying the sum of $1,250 to Belle Cave after the prayer for an appeal from the decree on December 18,1922, had been granted by the trial court. Appellants admitted that appellee was entitled to recover from them tbe amount «of tbe reduction of the receiver’s fee of $625, and the cash balance of $620.17 of receivership funds in tbe receiver’s bands as shown by tbe report. Upon a bearing of tbe petition tbe court entered a judgment against the receiver and bis bondsmen, tbe appellants herein, for $1,250, in addition to tbe two items aforesaid. Appellants appeal from that portion of tbe decree adjudging them to 'pay appellee the $1,250 item, and appellee appeals from tbe refusal of tbe court to enter judgment in his favor against them for tbe rent item of $625.

It will be observed that tbe receiver turned tbe hotel property back to Belle Cave, and paid her tbe sum of $1,250 under a decree of court, which bad not been suspended by an order of tbe court rendering it, or by tbe filing of a supersedeas bond- Strictly speaking, a receiver is a ministerial officer of tbe court appointing him. It is bis duty to obey tbe orders of tbe court, and be incurs no personal liability in carrying out tbe court’s instructions; otherwise be would be penalized for obedience. 23 R. C. L. 7-8 and 79-80; How v. Jones, 60 Ia. 70; Willis v. Sharp, 124 N. Y. 406; Plat v. N. Y. R. Co., 170 N. Y. 450. The same rule governs, although tbe judgment or - decree under which tbe receiver acted was afterwards reversed, as tbe judgment was valid until reversed, and was effective unless suspended by order of court or supersedeas bond. Dodson v. Butler, 101 Ark. 416; Meeks v. State, 80 Ark. 579. Under tbe rule thus announced the trial court was in error in rendering judgment against appellants for the restitution of $1,250. The receiver paid B<ellev,Cave under the instructions of tbe court.

Tbe decree is reversed in this particular, and the cause is. remanded with directions to enter judgment in accordance with this opinion, land to adjudge tbe costs •accruing after appellant’s offer to pay against appellee.