text:
    Morrilton Lumber Company v. Groom.
    Opinion delivered March 5, 1928.
    1. Mortgages — priority op materialman’s hen. — Under Crawford & Moses’ Dig., § 6909, providing that a lien for materials shall attach to buildings for which they were furnished in preference to a prior mortgage existing on the land before the buildings were erected, held that, where a building was erected on mortgaged land, half from materials derived from old buildings on the lands and half from new materials furnished by the material-man, the lien of the mortgage was superior to the materialman’s lien.
    2. Mechanics’ lien — enforcement of materialman’s lien. — A . materialman’s lien on a building can be enforced as superior to a prior lien on the land, under Crawford & Moses’ Dig., § 6909, only by sale of the building as separate and distinct from the land.

      3. Mechanics’ lien — priority op materialman’s lien. — -Crawford & Moses’ Dig., § 6909, providing that a materialman’s lien shall attach to buildings for which materials were furnished in preference to a prior lien on the land, applies only where there is some independent structure erected on the land out of materials furnished for that purpose.
    4. Mortgages — estoppel.—A mortgagee is not estopped to claim a superior lien on a building as against a materialman, where the mortgagee had knowledge that the mortgagors were using material derived from old buildings on the mortgaged land together with new materials furnished by a materialman in erecting a new building, since mere silence would not amount to an estoppel.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT op pacts.
    Morrilton Lumber- Company brought suit in equity against Grover H. Webb, L. M. Sharp and Elvie Reynolds to establish a meehani.es’ lien upon certain lots in Morrilton, Arkansas, in the sum of $599.82. Charles Groom was allowed to intervene and claim a prior lien on the lots by virtue of a mortgage executed to him by the defendants.
    On the 23d day of January, 1925,' Charles T. Groom executed a warranty deed to Grover H. Webb, L. M. Sharp and Elvie Reynolds to lots 7, 8 and 9, in block 4 of Moose’s Addition to the town of Morrilton, Arkansas. The consideration as recited in the deed was the sum of $4,500, evidenced by three promissory notes for -$1,500 each, due respectively on November 1, 1925, 1926, and 1927, each bearing interest from date until paid at the rate of eight per cent, per annum. At the time of the execution of the deed there were on the land several houses.. After the execution of the deed the owners of the property tore down the houses and used the lumber, together with other lumber which they purchased from the plaintiff, in the erection of a storehouse and -barn on said lots. The property was estimated to be worth $2,000 more in its changed condition. The value of the lumber purchased from the plaintiff was $599.82, and the lumber taken from the -dwelling-houses which were torn down was of about the same value. • The old and now lumber was mixed up aud. used in the construction of the new 'buildings.
    ’The chancellor found the issues in favor of the intervener, Charles T. Groom, and granted him a decree of foreclosure of his mortgage, because, by the terms of the mortgage, all of the notes had become due because of the mortgagors’ failure to pay any of the notes. It was decreed that the mortgage lien of Charles T. Groom was prior and paramount to the materialman’s lien of the Morrilton Lumber Company, and that the proceeds of sale should be applied, first, to the payment of the indebtedness of Charles T. Groom, and the remainder, if any, should be applied, first, to the payment of the judgment claim of the Morrilton Lumber Company, and the residue, if any, to Grover H. Webb, Elvie Reynolds and L. M. Sharp. To reverse that decree Morrilton Lumber Company has duly prosecuted an appeal to this court.

      Strait & Strait, for appellant.

      J. H. Reynolds and E. A. Williams, for appellee.
   Hart, C. J.,

(after stating the facts). It is conceded that the lien of Charles T. Groom on the lots is superior to the materialman’s lien of the Morrilton Lumber Com-’ pany, but it is claimed the new house and garage which were constructed on the lots from the old lumber from the houses which were torn down and the new lumber which was purchased from the Morrilton Lumber Company is subject to the lien of the lumber company, and that the buildings may be taken off and sold and the proceeds applied equally towards the satisfaction of the judgment of the plaintiff, because the value of the old and new lumber was about the same. In making this contention, counsel for the plaintiff rely upon the provision of § 6909 of Crawford & Moses.’ Digest as construed in Judd v. Rieff, 171 Ark. 362, 295 S. W. 370. In that case it was held that a lien for materials for building a garage, furnished to a purchaser in possession under a land contract prior to the vendor’s exercise of an option to declare the (contract rescinded, was superior to the vendor’s lien on the garage, under Crawford & Moses’' Digest, 6909, providing that a materialman’s lien on specific improvements shall be superior to prior incumbrances on the land. Section 6909 of the Digest reads as follows:

“The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable' time thereafter; (a) provided, however, that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, the said lien shall be prior to the lien given by this act. ’ ’

Prior to the passage of this act it had been held that a mortgage lien was superior to a materialman’s lien. Monticello Bank v. Sweet, 64 Ark. 502, 43 S. W. 500.

We are of the opinion that the chancellor correctly held that the lien of the mortgagee, Groom, was superior to that of the plaintiff as materialman. The statute in question gives one who purchases materials a new right, and, along with the superior right, gives him a remedy for the enforcement of it. The statute in express terms declares that the lien of the materialmen shall attach'to the building for which the materials were furnished in preference to any prior mortgage existing upon the lands before said buildings were erected, and that any person enforcing such lien may have the building sold under execution, and the purchaser may remove it within a reasonable time thereafter.

According to our former decisions, if a new building had been erected entirely out of materials furnished by the plaintiff, its lien might have been enforced against such building, and the purchaser would have had the right to remove it from the lots in a reasonable time, notwithstanding there was a prior mortgage on the lots. The lien can be enforced as a prior lien only by a sale of the building as a separate and distinct entity from the land. .Such priority of lien exists only when a.new building has been put upon the land subsequent to the execution of the mortgage, and the one claiming a prior lien for materials furnished must have furnished the materials for the erection of an entirely new building. To hold otherwise would put it in the power of the mortgagor to impair the security which he had given to the mortgagee. The houses were on the lots when the mortgage was executed, and constituted a part of the realty. Indeed, in many cases houses might constitute the most valuable part of the mortgage security. For the reason that the mortgage includes the houses situated on the lots as well as the lots themselves, the mortgagor would have no right to tear down the buildings without the consent of the mortgagee, and use them, in whole or in part, in making-new improvements upon the mortgaged property.

As we have already seen, the materialman has no rights except as.given him by the statute, and the statute only applies where there is some independent structure erected on the land out of materials furnished for that purpose. Getchell & Tichenor v. Allen, 34 Iowa 559; James River Lumber Co. v. Danner, 3 N. D. 470, 57 N. W. 343, and cases cited; Thorpe Bloch Savings & Loan Assn. v. James, 13 Ind. App. 522, 41 N. E. 978, and cases cited; Rockel on Mechanics’ Liens, p. 388, § 148a; and Boisot on Mechanics’ Liens, p. 149, § 150.

Counsel for plaintiff rely upon Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157, 14 L. R. A. 305. This is an Alabama case, by a divided court; and, after reading carefully the majority and minority opinions in the case, we have reached the conclusion that the dissenting opinion is more in accord with our sense of reason and justice. The materialman had notice of the mortgage, and knew the purpose for which the materials were furnished. He was bound by the language of the statute, and could see from its terms that it only contemplated giving him a lien superior to that of a prior mortgagee'where a new building was erected out of materials furnished by third persons, and not where the new improvement was made out of old materials and new ones so intermingled that there could be no separation and sale of the building ■ erected out of the new material.

It can add nothing to the rights of the materialman that the mortgagee knew that the mortgagor had torn down the old building and was using the lumber together with new lumber furnished by the plaintiff in the erection of a new building. His rights as mortgagee could only be defeated by some act of waiver or estoppel on his part, and this could not be accomplished by mere knowledge on his part that the mortgagor was using the old materials in connection with new ones in the erection of a building. The mortgagee, in order to be estopped, must have given his consent to the mortgagor, or have been guilty of conduct which would have estopped him from asserting his mortgage. Mere silence would not amount to estoppel, and it is not claimed that he expressly or by necessary implication waived any of his rights under the mortgage.

Therefore the decree will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Mutual Benefit Health & Accident Association v. Tilley.
    Opinion delivered March 5, 1928.
    1. Insurance — right to recover under accident policy. — In an action by the administrator of insured to recover on an accident policy for the death of insured, shot by his wife, who was beneficiary under the policy, evidence held to sustain a finding in favor of the plaintiff on the theory that the wife unlawfully shot her husband, as against her contention that she shot in self-defense.
    2. Appeal and error — presumption in favor of verdict. — In an action by an administrator of insured to recover on an accident •.policy for insured’s death, having been shot by his wife, who was beneficiary under the policy, where the court instructed that the administrator could not recover unless the testimony showed that the killing was unlawful, it will be assumed, on appeal from a verdict for the administrator, that the jury found that the killing was unlawful.
    3. Insurance — accidental killing. — In an action by the administrator of insured to recover on an accident policy for the insured’s death, having been shot by his wife, who was benefi-
    • eiary under the policy, where the jury found that the killing was intentional, but not justified, such killing was “accidental” within the policy providing for payment if insured died through accidental means.
    4. Insurance — accidential killing. — In an action by the administrator of insured killed by the beneficiary to recover under a policy providing for payment if insured died through accidental means, no liability occurred under the policy unless the administrator showed that the killing of insured was accidental.
    5. Insurance — necessity of proof of death. — Where the insurer denied liability under the policy to any one within the time when proof of death might have been made, it was not necessary to make such proof of death.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Strait & Strait, for appellant.

      Edward Gordon, for appellee.
   Smith, J.

The appellant insurance company issued to James Richard Holder an accident policy in the sum of a thousand dollars, whereby it agreed to indemnify the insured against certain disabilities, and, in the event of his accidental death, to pay the wife of the insured the sum of a thousand dollars. The policy contained the following provision, among* others: “If the insured shall, through accidental means, sustain bodily injuries as described in the insuring clause, which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the insured from the date of the accident, and result in any of the following specific losses within thirteen weeks, the association will pay, in lieu of all other indemnity: * * * For loss of life, $1,000.” Indemnities were also provided for certain disabilities which might not result in death.

The insured was shot and killed by his wife, the beneficiary, and she brought a suit, after the company had denied all liability and waived the time within which suit might be ‘brought, and upon the trial of that action there was a verdict and judgment in favor of the insurance company. Thereafter the administrator of the insured’s estate brought a suit in the chancery court, in which he sought to recover upon the policy,, and to have the proceeds thereof declared a trust fund. It appears that, at the conclusion of this trial, when the chancellor indicated that he would find for the defendant, the plaintiff administrator elected to take a nonsuit, and the cause was then dismissed. Thereafter the administrator brought the present suit for the benefit of the estate of the insured; and alleged that the insured had been unlawfully killed by the beneficiary named in the policy. There was a verdict and judgment for the plaintiff for the amount of the policy, with the statutory penalty and an allowance for attorney’s fees, and this appeal is from that judgment.

At the trial from which this, appeal comes, witnesses detailed the circumstances under which the deceased had been killed, this testimony being to- the effect that the insured and his wife had quarreled; that she left his home and went to that of her mother, to which place the insured followed her, and that he there forcibly took from her their baby and carried it back to their home; that she followed, crying and begging for the return of the child, and, when they arrived at their home, her entreaty being ignored, she unlawfully shot and killed the insured.

There was testimony contradicting that of Mrs. Holder and her stepson, a son of the insured by a former marriage, given at the trial from which this appeal comes, which tended to show that, in the first suit on the policy, Mrs. Holder had shown that she killed her husband in self-defense. This contradiction presented a question of fact for the jury, and upon this question the court charged the jury as follows:

“The court instructs you that, the contract being an accident policy, and Lillie Ethel Holder, the assured’s wife, being the beneficiary named therein and alive at the time of his death, the plaintiff, as administrator of the estate of James B-ieliard Plolder, cannot recover in this case unless you find from the testimony that he was purposely and unlawfully killed by his wife.; that he himself did not, by his own misconduct, engage in or voluntarily enter the encounter which resulted in the injury causing his death.”

Other instructions given by the court elaborated the proposition that the administrator could not recover unless it Was shown by the testimony that the beneficiary named in the policy had unlawfully killed the insured. We must therefore assume that the jury found the fact to be that the beneficiary unlawfully killed the insured, and that the killing, while intentional, was not justified. Upon this finding was the plaintiff entitled to recover?

Appellant insists that the killing, while intentional, was justified, and'insists that there can be no recovery, and the following cases are cited in support of that contention: Ætna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298; Metropolitan Casualty Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64; State Life Ins. Co. v. Ford, 101 Ark. 514, 142 S. W. 863.

In reply to this contention, it may be said that the jury has found, under the instructions referred to above, that the killing was intentional, but not justified. This being true, the killing was “accidental” within the meaning of the language employed in the policy sued on.

In Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845, it was held that, if an injury occurs without the agency of the insured, it is “accidental,”, even though it may have been brought about designedly by another person. The question was again raised in the case of Harrison v. Interstate Business Men’s Accident Association, 133 Ark. 163, 202 S. W. 34, where it was held, after a review of the authorities, that (to quote a syllabus) : “If an injury occurs without the ag’ency of the insured, it will be held to be ‘accidental,’ even though it may be brought about designedly by another person.”

The case of Henry v. Knights & Daughters of Tabor, 156 Ark. 165, 246 S. W. 17, was a suit upon an ordinary life policy, and the facts were that the beneficiary had killed the insured. It was there held that the beneficiary, having willfully killed the insured, could not recover on the policy, but that a recovery might be had for the benefit of the insured’s estate. This holding was made upon the ground that, while publio policy prevented the beneficiary in a policy, who had willfully murdered the ■insured, from collecting the insurance, public policy did not extend further than was necessary to prevent the felon from reaping the benefit of his crime, and that the proceeds of such a policy are payable to the estate of the insured.

The instant suit is prosecuted upon the theory that, while the beneficiary willfully killed the insured, and that she cannot recover the proceeds because it would be contrary to public policy to permit her to do so; but, as the policy sued on is an accident, and not an ordinary life, policy, it was essential that plaintiff show that the killing was accidental, as that term is defined in thé cases above cited, before the administrator could recover. In other words, there was no liability to anyone unless the showing w'as made that the killing was accidental. The instructions required the jury to make this finding of fact before returning a verdict in plaintiff’s favor, and* as that verdict was returned, we must assume that finding was made, and, as the testimony is legally sufficient to support that finding, the judgment must be affirmed.

It is insisted that no proof of death was made; but, inasmuch as the company, within the time when proof might have 'been made, denied liability under the policy to anyone, it was not necessary to make this proof.

As no error appears, the judgment must be affirmed, and it is so ordered.


text:
    Bell v. Conner.
    Opinion delivered March 5, 1928.
    1. Bridges — notice of grant of franchise. — A franchise to build a toll bridge, granted by the county court, was not void because no notice had been given thereof, since Crawford & Moses’ Dig., § 10255, under which the court acted, does not require that notice be given.
    2. Bridges — grant of franchise — review on certiorari. — The fact' that property owners, informed of the proceeding, might have become parties and appealed from the county court’s order granting the franchise to build a toll bridge, did not preclude the right to review the county court’s order on certiorari.
    3. Bridges — validity of grant of franchise. — In a proceeding by certiorari, the county court’s order and judgment granting a franchise to build a toll bridge under Crawford & Moses’ Dig., § 10255, could not be held void where its invalidity did not appear from the face of the proceedings.
    4. Bridges — invalid franchise — remedy.—Where the invalidity of a county court’s judgment granting the franchise to build a toll ¡bridge did not appear from the face of the record in certiorari proceedings, the remedy of property owners was to institute proper proceeding to cancel the franchise in question.
    Appeal from Woodruff Circuit Court, Northern District; W. D. Davenport, Judg’e;
    writ quashed.

      Hughes & Davis, for appellant.

      J. F. Summers, for appellee.
   Smith, J.

Appellees, who are citizens and taxpayers of Woodruff County, sued out a writ of certiorari from the circuit court of Woodruff County-to quash the order and judgment of the county court of that county granting to Alvin Bell a franchise to build a toll bridge over White River near Augusta, in Woodruff County.

It appears, from the record in this case thus reviewed, that on January 4, 1926, Alvin Bell filed in the Woodruff County Court a petition praying the court to grant him a franchise to build a toll bridge over the White River near Augusta, in that county, and the prayer of the petition was granted on that date, and that on the same date Bell formally accepted the franchise granted.

Upon the final hearing before the circuit court it was held that the order and judgment of the county court granting the franchise was void, and the judgment of the county court was quashed, and Bell has appealed.

At the hearing in the court below, testimony was offered to the effect that the county court had, at its January term, 1925, granted a franchise to R. L. Gaster substantially identical with the one granted a year later to Bell. The location of the bridge was the same in' each instance, and each franchise provided that it should “be exclusive for a distance of ten miles on each side of said bridge, measured along the channel of said river,” and that the county court should not “hereafter, during the life of this franchise, grant to any person, partnership, company, corporation, or association, any right, privilege, franchise or license to construct, maintain or operate another bridge or ferry across White River within said limits.”

In the judgment granting a franchise to Bell it was provided that the franchise should be void and of no effect “if R. L. Gaster, who has a franchise for the construction of this toll bridge under an order of this court granted on the 27th day of January, 1925, complies in full with the ninth paragraph of said franchise, which is as follows: ‘Ninth. The said R. L. Gaster, his successors or assigns, shall begin on actual work of construction within fifteen calendar months from the date of the acceptance of this, franchise, and the said bridge shall be completed within three years from the beginning of actual work of construction, but the time of the completion of said construction shall be extended on showing to the court by the said R. L. Gaster, his successors or assigns, of reasonable cause for extension of time’.”

It was also made to appear from the oral testimony heard by the court below that Bell was a son-in-law of the county judge.

It is first insisted that the franchise granted Bell is void because it appears, from the face of the record, that no notice thereof was given. This contention may be answered by stating that § 10255, C. & M. Digest, under which the court acted, does not require, as a condition precedent to the exercise of this jurisdiction, that notice must be given.

It is further insisted by petitioners that the franchise granted Bell is void for the reason that it conflicts with the previous franchise granted Gaster, which had not then expired, as the fifteen months had not elapsed within which Gaster might begin the actual work of construction allowed for that purpose by the franchise granted him. The case of Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264, 63 S. W. 70, appears to support this contention.

It' is also insisted that the franchise granted Bell was void for the reason that the court was Avithout jurisdiction to make the order, on account of the relation by affinity existing between the judge of the court and the petitioner, and the case of Izard County v. Bank of Melbourne, 123 Ark. 458, 185 S. W. 794, is cited in support of that contention, it having been there held that a county judge is disqualified to allow any claim presented against the county in which he is interested, except his own salary.

It is further insisted that the franchise is void as being unreasonable and unilateral, and, further, that the State Highway Commission has the authority from the Federal Government to erect a bridge at the site in question, which permit would exclude another from doing so, and also that the bridge in question is a part of the State Highway system, over which the county court has no jurisdiction. The cases of Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, and Conner v. Blackwood, ante, p. 139, are cited in support of the last stated contentions.

It is insisted by appellant that petitioners should have appealed from the order of the county court, and. that, as they had a remedy by appeal, they cannot now proceed by certiorari to revieAV the order of the county court.

It has already been stated that no notice of the court proceeding was given or required, and, while a property owner who was ¡advised of 'the proceeding might have become a party and have appealed within the time allowed by law for that purpose, the existence of this remedy does not preclude the right to review the order of the county court on certiorari. But, in a proceeding by certiorari, the validity of the order and judgment of the county court must be tested and determined by an inspection of the record in that case, and such order ¡and judgment will not be held void on a certiorari proceeding unless the invalidity thereof appears.from the face of the proceedings. Cazort v. Road Imp. Dist. No. 3, 175 Ark. 570, 299 S. W. 1014, and cases there cited.

The invalidity of the- judgment of the county court here under review does not appear from the face of the record under inspection, and it will be necessary therefore for petitioners to institute a proper proceeding to cancel the franchise in question, as that relief cannot be granted here.

The writ of certiorari issued by the circuit court must therefore be quashed, and it is so ordered.


author: McHaney, J.

text:
    Clerget v. Williams.
    Opinion delivered March 5, 1928.
    1. Work and labor — contract to pay for services. — The contract which the law ordinarily implies to pay for services and maintenance is not presumed between near relatives living together in the family relation.
    2. Work and labor — promise to pay for another’s services. — As a general rule, where a party accepts the beneficial results of another’s services the law implies a previous request and a subsequent promise to pay.
    3. Executors and administrators — implied promise to pay for SERVICES. — In the trial of a case on appeal from a probate court order disallowing a niece’s claim against her aunt’s estate for her services, evidence held to justify a finding of an implied promise on the part of the aunt to pay for such services.

      4. Executors and administrators — personal services — excessive award. — A verdict for $800 for a niece’s services in waiting on and attending to her aunt during the last six months of the latter’s life, held excessive hy $540; $10 a week, which the niece had earned at employment resigned by her, being sufficient, in the absence of evidence that she was a trained nurse or specially qualified, or that the duties were so much more arduous and trying than her former duties.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    reversed.

      Edward Gordon, for appellant.

      Strait & Strait, for appellee.
   McHaney, J.

For approximately three years before the death of Mrs,. Nancy E. Cowden, appellee, who was her niece, lived in her home at Morrilton, Arkansas, without charge for room and board. During all of this time appellee was employed as office girl in the office of Dr. Gray of Morrilton, at a salary of $10 per week, with the exception of the last six months of Mrs. Cowden’s life. In June, 1925, Mrs. Cowden fell, and so injured herself that thereafter she was 'confined to her room, but not entirely confined to her bed, and was. unable to attend to her usual household duties. She remained in this condition until the latter part of December, when she died. During this time, the last six months of Mrs. Cow-den’s life, appellee remained with her aunt, waited on her, and attended to the usual household duties, and did not work for Dr. Gray after the first of June. Appellee’s father, who was a brother of Mrs. Cowden, was appointed administrator of her estate, and Ms daughter, the appellee, presented a claim to him against the estate for services rendered her aunt in the sum of $3,675, which he allowed, and directed an attorney who had been employed to contest the suit of Charlie Wood against this same estate, to abandon such contest. For the facts in the case of Allnut v. Wood, see the decision in that .case this day filed. Shortly thereafter, the other heirs of Mrs. Cowden filed a petition in the probate court, and caused the removal of Williams as administrator, and appellant, Clerget, was appointed in his place. Clerget thereafter disallowed the claim of appellee, which was then presented to and disallowed by the probate court. Appellee thereupon appealed from the order of disallowance to the circuit court, and upon a trial of the case there, before a jury, she obtained judgment for the sum of $800, and the administrator has brought the case here for our consideration.

The only question raised by this appeal is the sufficiency of the evidence to sustain the verdict and judgment appealed from, it being contended on the part of appellant that, since appellee admitted that she had no express contract, agreement or understanding with the deceased, that she was to receive compensation for her services, and being of near kin to the deceased, the law will not imply a contract to pay for such services, under the rule announced in the cases of Hogg v. Laster, 56 Ark. 382, 19 S. W. 975; Lewis v. Lewis, 75 Ark. 191, 87 S. W. 134; Williams v. Walden, 82 Ark. 136, 100 S. W. 898; and Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540. The rule as stated in the last case is as follows: “It is also an elementary principle of law that the contract which the law ordinarily implies to pay for services and maintenance is not presumed between parent and child, or in any other case of near relationship, where the parties live together and create the family relation.”

As was also stated in the above case, “it is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another’s services, the law implies a previous request and a subsequent promise.” In that case the relationship was brother and sister, and the court told the jury that the plaintiff could not recover without establishing a special or express promise to pay her, and further, that the evidence showed the relationship between the claimant and the deceased to be sister and brother, and that, where this relationship existed, the law' presumed the services were rendered •gratuitously. This court reversed the case on these instructions, and further said:

“No hard and fast rule can be laid down, and every case must be governed by its peculiar circumstances. It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as by direct evidence. All the surrounding- circumstances under which the services were performed may be proved.”

The proof in this case shows that appellee rendered valuable and useful services to her aunt, and that, while there was no express promise to pay, yet it was discussed between them that a hired girl might be obtained for the sum of $3 per week, and her aunt expressed the wish that appellee should attend to and look after her wants and desires; that she discussed adopting appellee and the said Charlie Wood, to the end that they might inherit her estate, and the making- of a will was also discussed, but neither idea was ever carried into execution. Under these circumstances, and others that might be detailed, we think it was quite competent for the jury to infer such a promise from all the circumstances in the case, under proper instructions from the court. No question is raised here regarding the correctness of the court’s instructions, and an examination thereof by us discloses that the case wras properly submitted to the. jury. We are, however, of the opinión that the jury lias rendered a verdict for an excessive amount, an amount not supported by any substantial testimony. At the time she quit work for Dr. Gray, appellee was earning the sum of $10 per week. It is not shown that she was a trained nurse, nor that she had any special or peculiar qualification for this particular work, nor that the duties were so much more arduous and trying as to make the services worth three and one-half times as much as she had been getting per week. It is shown that competent help could have been obtained for $3 per week, and we have .concluded that $10 per week for a period of six months, or twenty-six weeks, is as mulch as the evidence authorizes a judgment to be entered for. If therefore the appellee will enter a remittitur of $54-0 within fifteen days, the judgment will be affirmed for $260; otherwise the cause will be reversed and remanded for a new trial.


text:
    Allnutt v. Wood.
    Opinion delivered March 5, 1928.
    1. Wills — establishment of lost will — sufficiency of evidence. —Under Crawford & Moses’ Dig., § 10542, where the effect of testimony of a witness testifying to the execution of the lost will is to give him the entire subject-matter of litigation relative thereto, a will cannot be established by his testimony.
    2. Wills — sufficiency of evidence to prove lost will. — In a suit under Crawford & Moses’ Dig., § 10542, to establish, a lost will and for an accounting, evidence held insufficient to prove the contents of such will, as required by § 10545.
    S. Wills — suit to establish — laches.—Plaintiff, • suing to establish a lost will, and failing to bring an action until after the death of the life tenant 14 years later and after the death of one of the subscribing witnesses, held barred by laches.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    reversd.

      Edward Gordon, for appellant.

      Strait é Strait, for appellee.
   Smith, J.

Appellee brought this suit to establish the alleged lost will of Dr. S. H. Cowden and for an accounting of the estate of Nancy E. Cowden, the widow of Dr. Cowden. The complaint alleged that Dr. Cowden died testate, and that by his last will he devised all his property, both real and personal, to his widow for life, with remainder to Charles A. Wood. Dr. Cowden died September 19,1911, and was survived by his widow, who died December 25, 1925. Dr. Cowden left no lineal descendants, and, so far as is known, no collateral heirs.

The answer filed by the heirs of Mrs. Cowden denied that Dr. Cowden died testate, and further alleged the fact to be that, shortly before his death, he executed a deed to all his property to his wife, in which he conveyed to her in fee-simple all his real estate, and his personal property also. In the reply to this aoswer it was alleged that the purported deed from Dr. Cowden to his wife was a forgery.

The chancellor found the fact to be that Dr. Cowden executed a will in due form, whereby he devised all his property to Ms wife for her life, with the remainder to Charles A. Wood, except that he devised to Ed Francis, subject to his wife’s life estate, a certain triangular lot constituting a part of the testator’s homestead. The estate of the testator consisted of a valuable lot in the city of Morrilton, containing about two and three-fourths acres, and a time certificate of deposit in the Bank of Morrilton for something over $2,700.

No children were born to the union of Dr. and Mrs. Cowden, but they took two small boys into their family and reared them. One of these was plaintiff, Charles A. Wood, who was Mrs. Cowden’s nephew; the other was Ed Francis. These boys lived with Dr. and Mrs. Cowden as members of the family until they were grown and had married, when they established homes for themselves. The testimony shows that Dr. and Mrs. Cowden regarded these young men with the tenderest affection.

The testimony shows very clearly that Dr. Cowden executed a will, about two months before his death, but the will could never be found after his death. It is the theory of the plaintiff that Robert L. Williams, a brother of Mrs. Cowden, not only destroyed the will by burning it, but that he also forged the deed, and the finding of the chancellor accords with this theory.

Without reviewing the testimony, which we have carefully considered, we announce our conclusion to be that the testimony supports the finding that the will was destroyed and the deed was forged, but, notwithstanding the fact that we concur with the chancellor in these findings, we do not affirm the decree establishing the will as a lost instrument, beloause we do not think its provisions were established with the certainty which the law requires to restore a lost will, and also because we think plaintiff was barred by laches in instituting this suit.

The attorney who prepared the will testified that the will gave to Mrs. Cowden all the property for life, with remainder to Charles A. Wood, except a lot forming a part of Dr. Cowdenls estate was devised to Ed Francis after the termination of Mrs. Cowden’s life estate. This witness testified that the testator gave certain directions about the wife of Charles A. Wood, but he did not remember whether the will as executed gave Mrs. Wood anything or not.

The attesting witnesses to the will were Dr. Charles D. Clark, who died in the lifetime of Mrs. Cowden, and Dr. Martin A. Metzger. The latter, when called as a witness, testified that the entire remainder was given to Charles A. Wood. Neither the attorney who drew the will nor Dr. Metzger remembered whether an executor had been named in the will or not.

Plaintiff Wood, testifying in his own behalf, stated that he was present when the will was executed, and that he heard it read, and he remembered its provisions to be as testified to by the attorney.

Dr. and Mrs. Cowden were frugal, and each kept a savings account, the accounts being kept in different banks. After the alleged forged deed had been placed of record, Mrs. Cowden’s brother exhibited it to the cashier of the bank where Dr. Cowden’s account was kept, and the account was transferred to, Mrs. Cowden’s name. Thereafter renewal certificates were issued annually by that bank in the name of Mrs. Cowden, who never used any of that account except the interest, and not all the interest, as the deposit was slightly more at the time of Mrs. Cowden’s death than it was when her husband died.

It is strongly urged by counsel for plaintiff that the fact that Mrs. Cowden used only the interest on this deposit, when she was authorized by the will to consume the principal, if her necessities had required her to do so, shows that she recognized the fact that her husband had left a will. It appears also that, after the death of Dr. Cowden, his widow executed a deed to Ed Francis for the portion of the real estate which plaintiff testified was the part given Francis by the will, subject to the widow’s life estate, and appellee insists that this was done because Mis. Cowden knew that action accorded with the wishes of her husband as expressed in his will.

The statute provides for the restoration of lost or destroyed wills, and vests that jurisdiction in chancery courts. Section 10542, C. & M. Digest.

Section 10545, C. & M. Digest, reads as follows:

“No will of any testator shall be allowed to be proved as.a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by. at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”

Section 10529, C. & M. Digest, which is relevant to the facts of this case, reads as follows:

“If any person shall be a subscribing witness to the • execution of any will wherein any beneficial devise, legacy, interest or appointment of real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, such devise, legacy, interest or appointment shall be void so far only as concerns such witness, or any person claiming under him, and such person shall be a competent witness, and may be compelled to testify respecting the execution of such will, in like manner as if no devise or bequest had been made to him.”

It is true that appellee was not one of the subscribing witnesses to the will, but, in the effort to prove its loss and to restore it, he becomes such in effect, for the purpose and effect of his testimony was to prove its execution, and, according to his testimony, the will which he seeks to restore gives him all the testator’s property, the life tenant being dead, except the lot conveyed by her to Francis. As appellee, in testifying to the execution of the will, becomes in effect a subscribing witness to its execution, and as the effect of his testimony is to give him the entire subject-matter of the present litigation, the will cannot be established by a consideration.of his testimony.

As no copy or draft of the will was produced, the testimony of two witnesses as to its execution and contents is essential. It is insisted that the testimony of the attorney and that of Dr. Metzger supplies this requirement.

The testimony - of the last-named two witnesses proves the execution of the will, but there is a substantial conflict in their testimony as to its contents. According to the recollection of the attorney, there was possibly a devise to appellee’s wife. The witness stated: “As I now recall, Dr. S. H. Cowden mentioned Mrs. Charles Wood, wife of Charles A. Wood, but as to whether or not any of the property was willed to her in said will, I cannot now state positively.” This witness was very definite in his statement that the remainder interest in a portion of the real estate had been given Ed Francis, the description oif which the witness did not recall. According to Dr. Metzger, the surviving subscribing witness, the entire estate was given to Wood, subject to the life estate of the testator’s widow.

In the case of Rose v. Hunnicutt, 166 Ark. 134, 265 S. W. 651, it was held (to quote' a syllabus) that “it will be presumed that a testator destroyed a will which cannot be found after her death, with intention to revoke it, if she retained custody of it or had access to it, but this presumption may be overcome by proof.”

In the case of Rawlings v. Rerry, 128 Ark. 273, 194 S. W. 249, the court discussed the quantum of proof necessary to overcome the presumption that a lost will had been revoked, and it was there said:

“We think no error was committed in defining the quantum of proóf necessary to establish and prove a lost will. In the case of Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316, Chief Justice Hill, speaking for the court, quoted with approval from the case of Rhodes v. Vinson, 9 Grill (Md.) 169, 52 Am. Dec. 685, the following statement of the law: ‘The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect. them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that, in cases like the present, where the object is to establish the contents of a paper which has been destroyed as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive, and satisfactory proof? Wé think not.’ See also Underhill on the Daw of Wills, vol. 1, § 275, and 14 Ency. of Ev., p. 465.”

Appellee cites and relies upon the case of Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27, as sustaining the decree of the court below in establishing the alleged lost will. But the facts in that case were stronger in support of the will than they are in the instant case. There a carbon copy of the will was' produced, which the statute makes equivalent to one witness. There was no question about the provisions of the will. More than two witnesses proved its execution, and it was clearly shown to have been in the possession of the testator when he left his home for the hospital, from which he never returned, and it was also shown that a person had access to the will who would have profited by its destruction.

The instant case is more nearly like that of Dudgeon v. Dudgeon, 119 Ark. 128, 177 S. W. 402, in which case, as in this, the execution of the will was clearly shown, but its provisions were not. It was there said:

“While it is admitted there was a will, appellant failed to prove its provisions. 'Section 8062 of Kirby’s Digest gives chancery courts jurisdiction to establish lost or destroyed wills, but it is not sufficient simply to establish the fact that there was a will. It is just as essential that the proof show its provisions. 'Section 8065 of Kirby’s Digest provides that no will shall be allowed to be proved as a lost or destroyed will unless, among other requirements, its provisions be clearly and distinctly proved by at least one witness, a correct copy or driaft being equivalent to one witness. ’ ’

We are also of the opinion that plaintiff is barred by laches from prosecuting this suit.

In the case of Dudgeon v. Dudgeon, supra, it was said:

“The right to probate this will would not be defeated merely by the delay in the institution of this suit, although, with full knowledge of all the facts, appellant delayed over ten years in moving for that purpose. Yet this is a circumstance to be considered in determining what action the court should take.”

Here, however, we have something more than mere delay. Dr. Cowden died in 1911, and his wife in 1925, and no effort was made to probate this will until after her death. It cannot be assumed that she was not interested in the devolution of the estate, whatever it was, which she acquired upon the death of her husband.- Dr. Clark, one of the attesting witnesses, was also dead when the suit was filed. It is true that the attorney who prepared the will and one of the attesting witnesses still survived, but such time has elapsed since the death of the testator that one or the other of these last-named persons has become confused about the provisions of the will. During all this time there was of record a deed which apparently conveyed to Mrs. Cowden the entire estate. Appellee insists that the testimony shows that Mrs. Cowden did not claim under this deed, and that he was ignorant of its existence until after Mrs. Cowden’s death. Had this suit been brought seasonably, it might otherwise 'appear. .

Appellee insists that he could not have disturbed Mrs. Cowden’s possession and use of the land or the money, for the reason that the will gave her the right thereto during her life; and this is true if there was such a will as he seeks to prove, but, even so, he could have probated the will during Mrs. Cowden’s lifetime. He was certainly not required to wait until after her death to do so, but this he did, and his delay has thus caused the loss of very material testimony.

In the case of Reese v. Bruce, 136 Ark. 378, 206 S. W. 658, certain heirs questioned the apparent title of which their ancestor was seized at the time of his death, and, in denying them relief upon the ground of laches, the conrt said:

“It appears on the face of the hill that W. W. Tate died on the 29th day of May, 1899. If appellants had instituted this suit in his lifetime, he could have explained the character of his title and possession thereunder. Appellants have waited until conditions have changed and until appellees have been deprived of the evidence of their father. This court said, in the case of Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135, that the true doctrine concerning laches was announced by Mr. Pomeroy, as follows: ‘Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as the parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates' as estoppel against the assertion of the right. This disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes, but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.’ 5 Pomeroy, Eq. Jur. (3 ed.), § '21.”

For the reasons therefore that appellee has failed to prove the provisions of the will with the certainty required by law to restore it as a lost instrument, and because of his laches in instituting this suit, the decree of the court below must be reversed, and, as appellee has no interest in the Cowden estate in the absence of a will, the suit will be dismissed. It is so ordered.


author: Humphreys, J.

text:
    Security Mortgage Company v. Meeks.
    Opinion delivered March 5, 1928.
    Drains — notice to supposed owner. — In a proceeding by constructive service to enforce the benefit assessment of a drainage district, under Acts 1927, p. 417, notice naming the original owner of the land, who had legal title and right of possession, and was believed by the commissioners of the drainage district to be the “supposed owner,” as the “supposed owner,” rather than a commissioner appointed to make a sale on a mortgage foreclosure, held sufficient.
    Appeal from Clark Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      Gustavus G. Pope, for appellant.

      Joseph Callaway, for appellee.
   Humphreys, J.

Appellant brought this suit in the chancery court of Clark County to foreclose a mortgage lien on a .certain one hundred acre tract of land in said county against the mortgagors, James and Lula Bell, and to redeem said land from a foreclosure sale for benefit assessments due the Boss Drainage District from appellee, O. Ó. Meeks, who purchased the land from the grantee, John F. Bevill, of said Boss Drainage District, after it purchased and obtained a deed to the land at its tax or benefit assessment sale.

In addition to setting out appellant’s note and mortgage, and the failure of the Bells to pay the indebtedness, and a prayer for foreclosure, it was alleged in the complaint that the sale by the Boss Drainage District for the delinquent assessments of 1921 was void, because the notice named James Bell as the supposed owner, whereas, at the time of the institution of the foreclosure suit of the Boss Drainage District, a second mortgage, which the Bells had given to the Saunders Mercantile Company and the Citizens’ National Bank, had been foreclosed, and the land ordered sold by Fred Dillard, who was appointed commissioner to make the sale. In other words, it was alleged that, by virtue of his appointment, Fred Dillard, as commissioner, should have been named as the supposed owner in the notice given by the Boss Drainage District in the enforcement of its lien for delinquent assessments.

Appellee filed an answer, claiming ownership to the land by virtue of mesne 'conveyances from the Boss Drainage District, who purchased the land at its foreclosure sale for delinquent assessments of 1921, and denying the alleged invalidity of its tax or assessment sale.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree upholding the validity of the tax or benefit assessment sale of the Boss Drainage District and a dismissal of appellant’s complaint for the want of equity, from which is this appeal.

The facts contained in the record are undisputed. On February 20, 1919, James Bell, jointly with his wife, executed a mortgage on said land to secure an indebtedness James Bell owed appellant, amounting to $2,000. Thereafter they executed a second mortgage on said lands to the Saunders Mercantile Company and the Citizens’ National Bank to secure money Bell borrowed from them. Suit was brought in said court to foreclose the second mortgage, subject to appellants’ mortgage, appellant being made a party thereto, and a decree of foreclosure was rendered and entered on June 8, 1922, in which James and Lula Bell were given until the first day of October, 1922, to pay the debt to the Citizens ’ National Bank and 'Saunders Mercantile Company. James and Lula Bell remained in possession óf the lands during the entire- year of 1922. They did not live upon it, but cultivated it and kept it until they gathered their crop. On June 17, 1922, the Boss Drainage District brought its suit to foreclose its lien for delinquent assessments for 1921, in accordance with the special act No. 92 of the Acts of the General Assembly of 1917 creating the district. The proceeding was quasi in rem, and named James Bell as the supposed owner of the land. The act required that the supposed owner of the land be named in the notice to sell same in the foreclosure proceeding to enforce a lien for delinquent assessments. A decree was rendered in that case on October 3, 1922, ordering that the lands in the Boss Drainage District upon which the delinquent assessments of 1921 had not been paid should be sold by Fred Dillard as commissioner. The district purchased the land at the sale, and the court subsequently confirmed the commissioner’s sale and ordered that he make a deed to the Boss Drainage District, which he did. The drainage district then sold the land to John F. Bevill, and Bevill afterwards sold it to appellee, O. 0: Meeks.

Appellant contends for a reversal of the decree dismissing its complaint because the lands were sold by the Boss Drainage District in a proceeding enforcing its claim for delinquent assessments of 1921 upon constructive service, in which James Bell was named as the supposed owner thereof, instead of naming Fred'Dillard as the supposed owner, who was appointed by the court to sell the land in the foreclosure decree rendered on the 8th day of June, 1922, in favor of the Citizens’ National Bank and the Saunders Mercantile Company against James and Lula Bell. It is argued that the legal title to the land was placed in the commissioner by the decree of June 8, 1922, in trust for the future purchaser, and that he was the supposed owner on June 17, when the drainage district brought this suit to foreclose its claim for delinquent assessments of 1921. The decree of June 8, 1922, did not attempt to transfer the title in the land out of Bell and plaice it in the commissioner.. It simply ordered a sale of the land to satisfy the lien in favor of the Saunders Mercantile Company and the Citizens’ National Bank, if Bell did not pay the debt on or before October 1, 1922. Bell was left in possession of the land, and was in possession thereof, -with a right to remain there and pay the debt, at the time the drainage district brought its suit. There is nothing in the record to indicate that the commissioners of the Boss Drainage District believed, or had reason to believe, that Bell was not the supposed owner. ’ They had every reason to believe that he was the supposed owner, as he was the original owner and still in possession of the land at the time it instituted the suit to collect the delinquent assessments. We think the rule announced in the case of Simpson v. Reinman, 146 Ark. 428, 227 S. W. 15, and in the Security Mortgage Co. v. Herron, 174 Ark. 698, 296 S. W. 363, delivered July 4,1927, rules the issue involved here. The notice met the requirements of the statute under which the district was created, according to the rule announced in both those cases.

No error appearing, the decree is affirmed.


text:
    Kelly v. Kelly.
    Opinion delivered March 5, 1928.

      1. Wills — intention of testator. — The cardinal rule in construing a will is to ascertain and declare the intention of the testator to -be gained from reading the entire will and construing it to give effect to each clause and provision therein, if this can be done.
    2. Wills — term “children” construed. — Primarily, the term “children” is a word of purchase and not of limitation, and for that reason -cannot be construed as equivalent of the words “heirs” or “heirs of the body,” unless the context of the will shows that the testator intended to use the term in the sense of heirs.
    3. Wills — construction.—Under a will devising'a city block to the testator’s son Tom and his children, providing that “the property is not to be mortgaged or sold during the lifetime of my son, Tom, or his children, -but is to be kept as a home for the Kelly family,” held the son and the children were vested with equal estates, the first clause therein vesting a fee simple to devisees and the last clause thereof being in the nature of direction not to sell or mortgage the land during life.
    Appeal from Monroe Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.

      Joe P. Melton, for appellant.

      Bogle & Sharp, for appellee.
   Humphreys, J.

This appeal involves the construction of the first devising paragraph of the will of Bridget Kelly, the mother of appellee, and grandmother of appellants. Appellee brought this suit against the appellants for a partition of the land, under the theory that the fee simple title was devised to him and his children jointly hy the provisions of said paragraph.

Appellants maintain that a life estate only in said real estate was devised to appellee, and that the remainder in fee was devised to them by the paragraph of the will in question. The paragraph of the will is as follows:

“All the property in block twenty-seven in the city of Brinkley, Monroe County, Arkansas, known as. the Kelly Hotel, I give and bequeath to my son Tom and his children. The property is not to be mortgaged or sold during the lifetime of my son Tom or his children’s, but is to be kept as a home for the Kelly family.”

This court announced the following rule with referenee to the construction of wills in the case of Finch v. Hunter, 148 Ark. 486, 230 S. W. 554.

“The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to he gained from reading the entire will and construing it so as to give effect to every clause and provision therein, if this can he done.”

The other parts of the will throw no light whatever upon the intention of the testator with reference to the kind of estate she intended to vest at her death in appellants and appellee under the paragraph in question. For that reason we have not incorporated in this opinion the remaining paragraphs of the will. The intent therefore of the testator must be ascertained, if possible, from the language employed in the paragraph in question. Appellants argue that the terms “children” used in the first clause of the paragraph meant “heirs of the body,” and was an effort to create an estate tail, which, under our statute, would vest a life estate in appellee with remainder in fee to appellant.

Primarily the term “children” is a word of purchase and not one of limitation, and for that reason cannot be construed as the equivalent of the word “heirs” or “heirs of the body,” unless there is something in the context showing that the testator intended to use the term in the sense of heirs. “Children” is a broader term than the word “heirs,” and may include adopted children as well as 'Children of one’s body. There is nothing in the first clause of the paragraph restricting the use of the term “children” to heirs of the body of Tom, the testator’s son. The plain meaning of- the language used in the first clause is that the father and children should be vested with equal estates. The first clause must be construed as vesting a fee simple title to the land in all the devisees mentioned in the paragraph, unless there is something in the additional or last clause indicating otherwise. The last clause is an attempt to abridge the fight of the devisees to sell or incumber the property. If the limitation attempted to prevent the sale or incumbrance thereof during the lifetime of appellee only, it might be argued with much effect that the testator only intended to vest a life estate thereto in appellee, with the remainder in fee to his children. In other words, that the testator used the term children as the equivalent of the word heirs; but the force of the argument is lost when it is observed that the attempted limitation for or abridgment of the right to sell or incumber the property holds throughout the life of the children also. Certainly the testator did not intend to limit the interest of appellants to a life estate by an attempted restriction against the sale and incumbrance of the land under the last clause of the paragraph. If we interpret the last clause as limiting the estate vested by the first clause in appellee to a life estate, the construction necessarily limits appellants’ estate to a life estate also. The last clause does not purport to bequeath either a life or fee simple estate to any of the devisees. It is in the nature of a direction to the devisees not to sell or mortgage the land during their life, but to reside upon it as a home, rather than an attempt to vest any kind of an estate in them to the land. The first clause in unambiguous and definite language vested a fee simple title in the devisees upon the death of the testator.

It follows, that the decree partitioning the land between the devisees in equal shares is correct, and must be and is affirmed.


text:
    Cain v. Songer.
    Opinion delivered March 5, 1928.
    1. Mortgages — delivery of property. — Where a bill of sale of a chattel was intended as a mortgage to secure a debt, delivery of property to- the apparent buyer was not necessary to render the instrument valid or effective as a mortgage.
    2. Trial — instruction presenting plaintiff’s theory. — In a suit to recover possession of described personal property alleging ownership thereof by purchase and delivery under a bill of sale, in which the testimony conflicted as to whether the bill of sale was executed to evidence a sale or to secure an indebtedness, it was error to refuse an instruction presenting plaintiff’s theory that the contract was one of sale.
    Appeal from Woodruff Circuit Court, Northern District'; W. D. Davenport, Judge;
    reversed.

      Roy D. Campbell, for appellant.

      Elmo CarlLee, for appellee.
   Humphreys, J.

Appellant brought suit against appellee in the circuit court of Woodruff County, Northern District, to recover possession of certain sawmill machinery, equipment, wagons, horses and mules, particularly describing the property and alleging ownership thereof by purchase and delivery from appellee under a 'bill of sale executed to him on the 25th day of June, 1924. Appellant executed bond and took possession of the property.

Appellee filed an answer, admitting the execution of the bill of sale, but alleging that it was. intended as a mortgage to secure the indebtedness of $500 which he owed appellant, and which had been paid prior to the institution of this suit.

The cause was submitted to a jury upon the pleadings, testimony, and the instructions of the court, which resulted in a verdict and consequent judgment for the value of the property in favor of appellee, from which is this appeal!

The bill of sale, absolute upon its face, was introduced in evidence. The real issue involved was whether the property was delivered to appellant under the bill of sale or whether the instrument, was intended as a mortgage to secure an indebtedness of $500, which, of course, would not require a delivery of the property, to be valid or effective.

The testimony introduced by appellant tended to show that the bill of sale was executed to evidence an absolute sale and purchase of the' property"; whereas the testimony introduced by appellee tended to show that it was intended as a mortgage to secure an indebtedness of $500. Appellant’s testimony tended to show that, after the execution of the bill of sale, appellant rented the property to. appellee. Appellee’s testimony tended to show otherwise. If appellee rented the property from appellant at the time or after executing the bill of sale, it was proof conclusive of a delivery and complete sale. Appellant asked an instruction presenting this theory of his case, which was refused by the court, over his objection and exception. The instruction is as follows:

“If you find that, after the bill of sale was executed, the plaintiff and defendant entered into an agreement for the use of the property under which the defendant was to pay for the use of the sawmill outfit, then you are instructed that there was. a delivery of the property after the bill of sale was executed, and you will find for the plaintiff.”

This theory of appellant’s case was not covered by any other instruction given by the court, and the court erred in not giving the requested instruction.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.

text:
    North Arkansas Highway Improvement District No. 2 v. Home Telephone Company.
    Opinion delivered March 5, 1928.
    1. Highways — action against highway'district — venue.—Where the domicile of a highway improvement district was fixed by Acts 1917, p. 2181, in Izard County, it was not subject to jurisdiction of the court in Fulton County.
    2. Judgment — when error to render judgment by default.— Where the defendant highway district came into court by attorneys and filed an answer showing no liability for damages done by a contractor as claimed, it was error to render judgment against the district by default.
    3. Judgment — when set aside for mistake or fraud. — A judgment by default will be set aside after the term at which it was rendered if it appears that the judgment was rendered either by mistake or by fraud practiced by the successful party in obtaining it.
    4. Pleading — defective statement of cause of action. — The remedy to reach a cause of action defectively stated is by motion to make the complaint more definite and certain, rather than by demurrer.
    5: Judgment — action to vacate judgment — parties.—Where a judgment was obtained against a highway contractor with a judgment over against the highway district as garnishee, and the person securing the judgment was proceeding to enforce it against the district, it was not necessary, in the district’s suit to vacate such judgment, that the highway contractor be made a party.
    6. Pleading — want of proper verification of complaint. — The want of proper verification of a complaint cannot be reached by demurrer, nor raised in the Supreme Court for the first time on • appeal.
    Appeal from Fulton Circuit Court; John G. Ashley, Judge;
    reversed.

      Coleman & Reeder and S. M. Casey, for appellant.

      H. A. Northcutt and Oscar E. Ellis, for appellee.
   Kirby, J.

Appellant brought this suit, after the expiration of the term, to quash, set aside and vacate a judgment for $686 obtained by appellee against it in the Fulton Circuit Court on August 26, 1925.

The petition alleged that the judgment was obtained without proper service, rendered without jurisdiction and without notice to the district of the pendency of the suit until after the expiration of the term at which it was rendered. It was alleged that the district was created by special act 473 of the Acts of 1917.

“That on the 26th of August, 1925, the defendant obtained a judgment in this court against the plaintiff for the sum of $686 in a suit by the defendant against W. I. Davis Construction Company, in which it took judgment over, as it claimed, against the plaintiff, copy of which judgment is hereto attached, marked Exhibit A and made a part of this, complaint. Plaintiff states that said judgment was taken against it without any proper service, and it had no knowledge that same had been taken until recently, when a garnishment was issued on said judg-' ment against the collector of Pulton County, who had in his hands funds of the plaintiff”; that the court had no jurisdiction to render judgment under the pleadings in the case, and was without jurisdiction also, because, under the act of its creation, the district could only be sued in Izard County, and “plaintiff states that it was not indebted to the ~W. I. Davis Construction Company in any sum, nor to the defendant, Home Telephone Company, and it has a complete and full defense to said cause.”

A general demurrer was interposed to this petition by'the appellee compair^, which the court sustained, its judgment reciting that the cause was heard on the judg’„ment and pleadings in the case of Home Telephone Co. et al. v. W. I. Davis Construction Co., heretofore pending in this 'court, and which judgment is sought to he set aside.

The court, after hearing said demurrer and examining said judgment and pleading, is of opinion that plaintiff’s remedy, if any, is by certiorari and not by proceeding under § 6290, C. & M. Digest, to vacate said judgment, and that the demurrer should he sustained. The plaintiff excepted to the ruling of the court, and, declining to plead further, the complaint was dismissed, from which judgment this appeal is prosecuted.

The judgment sought to be quashed or vacated, attached to the petition as an exhibit, recites that on the 26th day of August, 1925, “the plaintiff, Home Telephone Company, appeared in person and by its, attorneys, H. A. Northeutt and Oscar E. Ellis, and announced ready for trial, and the defendant, W. I. Davis Construction Company, appeared by its attorneys, G-. T. Humphries and J. M. Burrow, and the North Arkansas Highway Improvement District No. 2 failed to appear, and made default, although having been legally served with summons for more than 20 days before the convening of this court.”

The pleading’s upon which this judgment was rendered show that the suit was brought by the telephone company against the construction company in the Fulton Circuit Court for damages to the telephone line and poles of the plaintiff by the defendant in the construction of the highway leading from Batesville to Mammoth Spring, on the section thereof leading from Mammoth Spring to Salem, Arkansas; that defendant company was working and building the road or highway under a contract with the North Arkansas Highway Improvement District No. '2, and that the company had negligently and unlawfully destroyed the telephone line in the construction of the highway, to the damage of the plaintiff. On motion the complaint was made more specific.

The defendant, W. I. Davis, Construction Company, moved to have the highway improvement district made a party, alleging that the commissioners in charge of the district had selected the route for the construction of the highway, and, after the survey was made and approved and notice given for all parties owning property along the right-of-way to appear and make their claim for damages, had contracted with the W. I. Davis Construction Company to build the highway, and put it in possession thereof; that, if any wrong was done to plaintiff, it consisted in the action taken by the commissioners of the improvement district, while acting under the authority of the State Highway Department; alleged that, under the above statement and conditions, the defendant should not be liable to the plaintiff in any sum, and, if the commissioners were made parties, “that they can answer and show wherein this defendant is not liable to plaintiff in any sum whatever.”

Thereupon the district filed a response to said motion, alleging that they had fully and completely paid and remunerated the said W. I. Davis for the work alleged to have been done by the plaintiff, Home Telephone Company, as mentioned and set out in said party’s original and amended complaints, and prayed to be discharged, with costs. This response was filed by Oscar E. Ellis and PI. A. Northcutt, the attorneys who brought suit for the telephone company against the Davis Construction Company.

The court was without jurisdiction to bring 'the highway district into court in Fulton County, its domicile being fixed by law in Izard County, and service being required to be had in all suits against it by service had on the commissioner of that county. Section 4, act 473 of the Acts of 1917.

When attorneys of the district,. the same attorneys who represented plaintiff in the action against it, entered the appearance of the district, it was alleged in the response that the district had fully and completely paid and remunerated the contractor “for the work alleged to have been done by the plaintiff, Home Telephone Company, as mentioned and set out in said party’s original and amended complaint.”

Notwithstanding this answer, denying any liability on the part of the district to the contractor or the Home Telephone Company, the judgment recites that the district failed to appear, and made default, and “thereupon the plaintiff and defendant, W. I. Davis Construction Company, agreed in open court that a judgment should be entered in favor of the plaintiff in the sum of $686, and that the said W. I. Davis Construction Company took judgment over against North Arkansas Highway Improvement District No. 2 by default in the sum of $686."

Judgment was then rendered that the plaintiff Home Telephone Company have judgment against the Davis Construction Company in the sum of $686, that W. I. Davis Construction Company should have judgment against the North Arkansas Highway Improvement District No. 2 in the sum of $686, etc.

When the district came into court by its attorneys and filed an answer, showing that it was not liable to the plaintiff for any damage done by the contractor, having already paid him in full for the work done, the court should not have rendered judgment against the district by default.

The commissioners had the right to rely upon their answer and response, which showed a complete defense to any suit against it by the contractor, and certainly to any allegations of the complaint for damages alleged to have been caused by it or its contractor in the construction of the highway. The complaint itself did not allege a cause of action or liability on the part of the district for the damages alleged to have been done by the contractor in the construction of the highway, and the response or answer of the. district showed it was not liable for any such damages. Such being the case, the allegations of the petitions, with the inferences arising from the recitals of the judgment sought to be set aside and the pleadings upon which it was rendered, exhibits thereto, are sufficient to show the judgment was rendered by mistake, or by fraud practiced by the successful party in obtaining it..

If such pleading, with the inferences arising from the allegations, are to be considered as. stating a cause of action defectively, it should have been corrected by motion to make more definite and certain, rather than by sustaining a demurrer holding it insufficient, which was erroneously done.

It can make no difference that the construction company was not made a party to the- proceedings to vacate the 'judgment, since the allegations showed that the judgment had been rendered against the district, which was proceeding to enforce it against the appellant, and that the construction company had no interest therein. Neither could a want of proper verification of the motion or complaint be reached or taken advantage of by demurrer, nor can the question be raised here for the first time.

The court erred in not so holding, and the judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings in accordance with law and not inconsistent with this opinion.


author: Kirby, J.,

text:
    Board of Directors St. Francis Levee District v. Home Life & Accident Company.
    Opinion delivered March 5, 1928.
    1. Eminent domain — limitation of action for taking of land. — ■ Under Crawford & Moses’ Dig., §§ 3940, 3942, an action to recover damages for the taking of land by a levee or drainage district must be brought within one year after construction of the levee.
    2. Eminent domain — persons bound by condemnation proceedings. — A mortgagee, not included in or notified of proceedings for condemnation of land by a levee district, was not bound nor his lien affected by such proceedings, and hence he was not prevented by payment of damages to the mortgagor from compelling a second payment to himself, although he would be first required to resort to the land remaining after condemnation.
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    reversed.
    STATEMENT OR PACTS.
    This appeal was prosecuted from a judgment recovered against the appellant for damages awarded for lands condemned for levee purposes.
    John N. Schichtl conveyed by deed of trust the Sullivan place, in Lee County, including the lands, condemned, on August 19, 1919, 'to J. K. Sullivan, to secure the payment of three $10,000 promissory notes, the last due January 18, 1923. The notes and the mortgage were assigned to appellee on September 30,1919, and it was the owner thereof on September 20,1922. On April 13, 1920, tlie appellant levee district proceeded to the condemnation of a strip of land 500 feet in width across part of the lands included in the mortgage, for levee purposes.
    Schiehtl, who appeared in the suit, filed exceptions to the report'of the appraisers, and, on April 11,1921, in the trial, judgment was rendered in his favor against the levee district for the sum of $19,580.71 damages for approximately 83 acres of additional right-of-way across the south half of section 27, north half of section 34, and the northeast quarter of section 33, township 2 north, range 5 east.. The district paid said sum, with interest, on February 24, 1922, to said Schiehtl, and the judgment was marked satisfied in full on that day.
    The appellee alleged it was. entitled, being the owner of the indebtedness and the mortgage securing same, to recover damages proportionately for 26 acres of the land condemned, included in its mortgage, of the value of $5,665.75, with interest. Appellee brought suit to foreclose its mortgage on June 22, 1922, and secured a judgment therefor on September 27, 1922, against Schiehtlfor $31,950, with an order of sale. The lands were sold and purchased by appellee for $15,000, which was credited on the judgment against Schiehtl, who has been insolvent since the foreclosure of said mortgage, leaving a balance due on the judgment of $16,950.
    The answer admitted the ownership of the lands by Schiehtl on August 19, 1919, but denied any knowledge of their having been mortgaged and the transfer of the mortgage to appellee; admitted that on April 13, 1920, it proceeded to the condemnation of the lands, but denied that summons was issued for Schiehtl, who appeared and filed exceptions, to the board of appraisers,' and denied that judgment was rendered on April 11, 1921, and that same had been satisfied; admitted that the proportionate part of the land condemned, included in the mortgage, was 15 acres, but denied any indebtedness to the plaintiff; admitted the foreclosure of the mortgage, the sale,.and purchase of the lands by appellee. Appellant denied the insolvency of Schiehtl; admitted that it appropriated or condemned the 500 feet of land and additional width for levee purposes; alleged that, if appellee had any right of action to any of the damages, awarded for the lands condemned, it was barred by the three-year statute of limitations (§ 6950), and the oné-year statute of limitations (§ 3942, C. & M. Digest); also pleaded estoppel against appellant, alleging that it had permitted Schichtl to collect the entire amount awarded for damages, and elected to pursue its remedy against him therefor, and asked that the suit be transferred to equity.
    The case was tried on an agreed statement of facts, showing the execution of the mortgage, the record thereof, the assignment of the notes and mortgage to appellee, the foreclosure thereof, the purchase of the lands, the condemnation of the lands, by the levee district, and payment of the damages to the mortgagor, and the satisfaction of the judgment.
    There was testimony tending to show that appellee, the holder of the mortgage, had knowledge of the condemnation proceedings and judgment rendered, although it was not a party thereto nor sunujioned therein, and from the judgment against it the levee district prosecutes this appeal.

      Wils Davis, Sam Costen and Mann & McCulloch, for appellant.

      Daggett & Daggett, for appellee.
   Kirby, J.,

(after stating the facts.). Appellant insists that the court erred in not holding the claim barred by the statute of limitations, and its contention must be sustained.

Our statute provides the remedy of the landowner where the board of directors of a levee or drainage district have appropriated or condemned lands for the construction or maintenance of levees or ditches, and that all actions for recovery of damages, against such districts for the appropriation of lands shall be instituted within one year after the construction of the levee or drains, and not thereafter. Sections 3940, 3942, C. & M. Digest.

Appellee, the mortgagee of the lands, not having-been included in the proceedings for the condemnation thereof, was not bound thereby, and his lien on the land not affected, not having- been 'given notice of such proceedings, and the payment of the damages by the condemnor, under such circumstances, to the mortgagor, could not prevent the mortgagee from compelling a second payment to himself or foreclosure on the land taken for the improvement, although he would first be required to resort to the land remaining after the condemnation. Schichtl v. Home Life & Accident Co., 169 Ark. 415, 275 S. W. 745.

The mortgagee should have'been made a party to the condemnation proceedings, and notified thereof in the manner provided by statute, and could not be deprived of its superior lien by condemnation and award made without notice, and the payment of any such award was at the peril of the condemnor.

The mortgagee, although not bound by the condemnation proceedings, not being a party thereto and having no notice thereof, could have proceeded, after the foreclosure of his lien and the purchase of the lands, to the collection of the amount of damages for the land condemned for payment of his deficiency judgment. He must have done this, however, within the time provided by law for the bringing of such suits, one year after the construction of the levee, and, not having done so, the suit being brought more than one year and eight months after its construction, the statute being pleaded, his •cause of action was barred, and the court erred in holding otherwise. Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604; Guaranty L. & T. Co. v. Helena, 148 Ark. 56, 228 S. W. 1045.

Having held that the appellee was not entitled to recover, his cause of action being barred by the statute of limitations, we need not discuss the other questions raised.

For the error designated the decree will be reversed, and the cause dismissed for want of equity. It is so ordered.


text:
    Steelcote Manufacturing Company v. Byrnes.
    Opinion delivered March 5, 1928.
    1. Sales — unsigned instrument of guaranty. — In an action on a verified account for paints sold, it was error to admit an unsigned printed form with the seller’s name printed at the bottom as a written guaranty, where an unfilled blank indicated that the instrument was to be executed by the seller’s general manager, and was net intended as a final signature authenticating a guaranty.
    2. Sales — right to recover for breach of guaranty. — Where paint was purchased under an alleged guaranty to keep the surface of a roof in water-proof condition for ten years, the buyer could not recover because of water coming through a leaky roof; where the proof did not show that he notified the seller that the paint was unsatisfactory or demanded that he furnish new paint to make the roof water-proof.
    3. Sales — breach of guaranty — burden of proof. — In an action on a verified account for roofing cement sold, where the buyer admitted delivery of the cement on contract of purchase at agreed price, the burden was on him to show that the material purchased was unfit for the purpose intended.
    4. Appeal and error — refusal to direct verdict. — It was not error to refuse to direct a verdict where the evidence was conflicting.
    Appeal from Washington Circuit Court; J. 8. Maples, Judge;
    reversed.

      W. Irvine Whitty, for appellant.

      J. Wythe Walker, for appellee.
   Kirby, J.

Appellant brought suit in a justice court in Prairie Township, Washington County, on ia verified account for $83.45, for roofing paint sold to A. M. Byrnes,, and recovered judgment by default, from which Byrnes appealed to the circuit court, where, upon the trial, appellee recovered judgment for the sum of $90, from which this apioeal is prosecuted.

It appears from the testimony that appellant sold, on open account, for $83.45, and shipped the paints to appellee on May 7, 1924, and, although it had written many letters about it, no reply had ever been received, and the account remained unpaid when suit was brought on October 31, 1925.

It was usual to make a written guaranty of the paints, when requested, on a standard printed form, but none was made to Byrnes, but an unsigned copy of the printed form of guaranty, upon the back of which the instructions for application of the paints were printed, was sent him.

Appellee testified that he had been la contractor and builder for 50 years, and purchased from an agent of appellant some roofing paint “Niedtcote Liquid Roofing Cement” for repainting his two brick buildings, upon which he was given a guaranty. Offered in evidence a copy of the printed form, which, being objected to as not signed, he then introduced, over appellant’s objection, the copy attached to the deposition of Niedt, a member of appellant firm. The printed form introduced had the words “Steelcote Manufacturing Company” printed at the bottom and a blank, “general manager,’’ but the blank was not filled or signed at all. Said the agent agreed to send the guaranty when he bought the paint, and did so. That he got it by mail afterwards. Stated the paints'were received, and he instructed the man who did the work to put it on according to the directions on the back of the guaranty, and supposed he did so. After it was put on the tenants complained of the roof leaking “right along,” and he went down and examined it,, and found the water was running down on the cars in-the showroom, and he had it fixed twice, the last time at a cost of $46.10 for material, and the first time for $15 or $16, and half of the roof was still in bad condition. The stuff didn’t stand the weather for a year. Said he had not written to the company that the paint was unsatisfactory, but told his daughter to do so,-and didn’t know whether she had done so. That he had told an agent of the company that he had been damaged more than the price agreed to be paid for the paint, and did not owe the company anything. Admitted, on cross-examination, that he bought the paint before he received the guaranty; that the agent told him the company would guarantee it for 10 years, and that he took his word for it.

•Perry stated he was a carpenter; had repaired the roof of the building about three weeks before the trial; found it leaking and full of cracks, and the water Washing the plaster off. Repaired the roof on the east side; stated the amount charged therefor, and that the roof on the west side was not fixed, but needed repairing. The roofing that had been on was not good. Water went -right through it. Said he was a carpenter, not a painter. Had never used the kind of roofing paint purchased from appellant, and knew nothing about it.

Byrnes testified it would cost from $75 to $100 to repair the plastering.

The court refused to direct a verdict for appellant, and from the judgment on the verdict against it the ' appeal is prosecuted.

Appellant rightly insists that the court erred in permitting the unsigned printed form to be introduced in evidence as a written guaranty. The printed name of the firm, followed by “......................._..........., general manager,” with the blank unfilled, indicated that the instrument was to be further executed, and was not intended as a final signature authenticating the guaranty, and the court erred in holding otherwise. Lee v. Vaughan Seed Store, 101 Ark. 68, 141 S. W. 496, 37 L. R. A. (N. S.) 352, 25 R. C. L. 302.

No attempt was made to show that the salesman had any authority to bind the appellant company other than that possessed by an ordinary traveling salesman to receive and transmit orders (Markstein Bros. Co. v. J. A. White & Co., 151 Ark. 1, 235 S. W. 39), and, under the terms of the alleged guaranty, if it had been executed and valid, it only bound the seller, if the paint failed “to give perfect satisfaction for ten years,” to “furnish the user, without charge, a sufficient quantity of Niedtcote liquid roofing cement to keep the surface in waterproof condition until the ten years expire,” and, had the terms been strictly complied with, the purchaser would only have been entitled to demand land receive more paint — “a sufficient quantity * * * to keep the surface in waterproof condition * *

The proof does not show that appellee notified appellant that the paint was unsatisfactory, and he does not even claim to have demanded that he be furnished new paint to make his roof waterproof, and in no event could he recover damages to his building caused by water coming through the leaky roof.

No case was made authorizing the recovery of special damages or damages to the building for a breach of warranty, if there had been such warranty that a breach of it could have entitled plaintiff to recover such damages, and appellee, having admitted the delivery of the roofing cement upon his contract of purchase for the amount agreed to be paid, was bound to the payment thereof, unless he could show that the material was unfit for the purpose for which it was sold and purchased — worthless, in fact — and the burden was upon him to do this.

We cannot say that there is no conflict in the testimony and that the undisputed evidence shows the appellee entitled to recover the contract price of the paints delivered, although such appears to be well nigh the case, and on that account we do not hold that the court erred in refusing to direct a verdict in appellant’s favor.

The judgment is accordingly reversed, and the cause remanded for a new trial.