text:
    Jenkins v. Smith.
    Opinion delivered March 22, 1926.
    1. Fraudulent conveyances—intent to defraud—presumption.— In order for a subsequent creditor to secure the avoidance of a voluntary conveyance, the intention to defraud existing or subsequent creditors must be proved by the facts and circumstances surrounding the transaction, and the presumption of such intention will not be indulged from the execution of a voluntary conveyance.
    2. Fraudulent conveyances—intent to defraud—evidence.—In a suit to set aside a voluntary conveyance as a fraud upon subsequent creditors, evidence held, not to establish the intention to defraud.
    Appeal from White Chancery Court; John, E. Mariinecm, Chancellor;
    reversed.

      J. N. Rachels, for appellant.

      Brwndidge & Neelly, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered in the chancery court of White County against appellants setting aside a deed made by J. R. Jenkins on the 21st day of January, 1922, to 86 acres of land in said county in order to sell same and apply the proceeds thereof and the rents therefrom to the payment of a balance of $969.89 due upon a note executed by J. R. Jenkins and his brother, J. D. Jenkins, upon the ground, that said conveyance was made in fraud of the rights of the creditors of said J. R. Jenkins.

The record discloses that the note in question was executed by J. R. Jenkins and J. D. Jenkins on the 12th day of May, 1922, in settlement of .interest which had accumulated upon a $4,000 mortgage on a 'bottom farm which the Jenkins brothers had made to appellee. This mortgage had been made to appellee some years before, and Belle Jenkins joined her husband in the execution thereof with the understanding that her husband would convey the 86-acre tract in question to her. The 86-acre tract had been purchased with $900, which Belle Jenkins borrowed from her mother, and with the proceeds of land and lots which had been theretofore purchased with money belonging to her. Belle Jenkins and her children were industrious, and made considerable on the farm, and especially out of five acres of strawberries which she and the children had cultivated. Her husband was associated with his brother in several kinds of business, which had not proved profitable. For example, they went into the garage business at one time and incurred an indebtedness of over $5,000. J. R. Jenkins’ son took that business over and assumed and paid the indebtedness against it. At the time J. R. Jenkins made a deed to the 86-acre tract of land, he was not involved beyond his ability to pay. The bottom farm upon which he and his brother had executed a mortgage for $4,000 to appellee w¡as worth anywhere from $6,000 to $10,000. They mortgaged that farm to another party for $4,000 with which to pay appellee’s mortgage, and, at the timé the testimony was taken in this case, they still owned their equity in that farm. When the note sued upon was given in May, 1922, to cover accumulated interest on the $4,000 mortgage, it was understood that J. R. Jenkins would liquidate it out of the rents from the bottom farm. He did collect and apply one year’s rent amounting to $395 on the note.

A garnishment wias issued in this proceeding against F. F. Olds, the tenant of Mrs. Belle Jenkins, who answered that he owed rents in the sum of $456, $406 on the 86-acre tract, and $50 on the portion of the bottom farm he cultivated. He only cultivated three acres on the bottom farm.

The court rendered a decree applying the rents reported by F. F. Olds to the payment of the judgment rendered against J. R. Jenkins ¡and J. D. Jenkins on the interest note, and canceled the deed to the 86-acre tract, and ordered a sale of the land, if the balance of the judgment was not paid in ten days, to satisfy same.

The decree canceling the deed and applying the rents to the payment of appellee’s judgment was rendered on the theory that the conveyance was voluntary, and made with the intent to defraud subsequent creditors. The debt was not created until about four months after the execution of the deed.

This court has ruled that, in order for a subsequent creditor to secure the avoidance of a voluntary conveyance, the- intention to defraud existing or subsequent creditors must be proved by the facts and circumstances surrounding the transaction, and that the presumption will not be indulged from the execution of a voluntary conveyance that he had the intention to defraud future creditors. Henry Quellmalz Lbr. & Mfg. Co. v. Day, 132 Ark. 469; Bunch v. Empire Cotton Co., 158 Ark. 462.

We do not think, under the rules of law thus announced, that the conveyance in the instant case was made with an intent to defraud J. R. Jenkins’ creditors. In the first place, we think the equitable owner of the 86-acre tract was Mrs. Belle Jenkins. According to the weight of the evidence, her money was used in the purchase of the land. In addition, the conveyance was made pursuant to a property settlement agreed upon between the parties several years prior to the execution of the deed. In the second place, the circumstances surrounding the transaction do not indicate that the deed wias made with a fraudulent intent of defrauding existing or future creditors. There were no known existing creditors of J. R. Jenkins at the time he made the conveyance. It is true he testified that he had nothing at the time he made the conveyance, from which it might be inferred that he was insolvent, but the undisputed evidence reveals that he was not insolvent. He must have meant by his statement that he had nothing left after making the conveyance except an equity in the bottom farm. He and his brother owned the bottom farm at that time, and, when the testimony was taken in this case, they still owned it. At the time the Jenkins brothers executed the note sued upon to appellee, there was an understanding that J. R. Jenkins should collect the rents from the bottom farm, and apply them upon the note. He subsequently collected $395 in rents from said farm and paid that amount to appellee upon the interest note.

Under our interpretation of the evidence, the chancellor erred in setting aside the deed and applying the rents upon the 86-acre tract to the payment of the judgment in favor of appellee.

The decree is therefore reversed in these particulars, and remanded with directions to enter ia decree in accordance with this opinion.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Powell v. Jones & Son.
    Opinion delivered March 29, 1926.
    1. Statute of frauds—original undertaking.—Where .several persons agreed to subscribe the money to build a bridge, an agreement by one of the subscribers to assume the obligations of certain other subscribers, in consideration that another subscriber would advance the amount necessary to pay for the bridge, was an original undertaking and not within the Statute of Frauds.
    2. Parties—joint owners of account sued on—evidence.—In an action on an account, evidence tending to prove that plaintiff was not the sole owner of the account, but was a member of the a copartnership which owned the debt, was competent.

      Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Walter Gorman, for appellant.

      C. W. Norton, for appellee.
   McCulloch, C. J.

This is an action'instituted by appellant in the circuit court of St. Fkancis County to recover on an account in the sum of $256.79 against appellees, purchased at a bankrupt sale. Scott Bond & Sons, a copartnership composed of Scott Bond and his two sons, were engaged in operating a gin in the town of Madison, Arkansas, and appellees, another copartnership, became indebted to the former in the amount mentioned in the complaint for the ginning of cotton. The firm of Scott Bond & Sons was adjudged bankrupt, and, at a sale of the-assets by the trustee, appellant became the purchaser of the account against appellees, who, in their answer in this case, admitted the correctness of their account with Scott Bond & Sons for ginning, but they pleaded a set-off against Scott Bond & 'Sons, which, if valid and correct, more than extinguished the account owned by appellant. There was a trial on the issues before a jury, and the verdict was in favor of appellees.

The principal contention for reversal of the judgment is that the verdict was not supported by legally sufficient evidence, in that the claim of appellees against Scott Bond & Sons is within the Statute of Frauds, and therefore unenforceable. The principal item in the asserted accounts of appellees against Scott Bond & Sons is a charge of $340, which constituted a portion of the cost of the construction of a bridge. It appears from the testimony that the two firms of Scott Bond & Sons and L. B. Jones & Son Avere both engaged in the mercantile business at Madison, were the owners of property in the vicinity, and were interested in the general welfare of the community. It became necessary to build a bridge along the public road over 'Crow Creek, and, as the county court would not build the bridge, it was determined by interested parties in the neighborhood to build it -by private subscription. L. B. Jones, a member of appellee firm, was the leader in the movement, and he prepared the subscription list, on which was indicated the names of those who were expected to subscribe, and the amounts of the respective subscriptions. The list was merely an open memorandum without any signatures, and it was handed to W. A. Thorn, another member of the firm, to circulate among the persons expected to subscribe, includ-' ing Scott Bond & Sons. Thorn testified that he went to Scott Bond & Sons with the list, and that he and one of the members of the firm went over the list to determine which of the persons on the list should be seen by the members of the Scott Bond firm, and that it was agreed that certain of the subscribers were to be seen in that way. He also testified that Scott Bond & Sons verbally agreed to contribute $150. Thorn testified further that he subsequently conferred with Scott Bond & Sons, and was informed by a member of the firm that all of the persons named on-the list given to him had agreed to the subscriptions indicated on the list, and would pay the same when called on—that many of them already had money on deposit with the firm. The subscriptions were all verbal, and after the list was complete a contract was made with >a mill concern for the purchase of the lumber, and with another concern for the construction of the bridge. When the bridge had been completed, Thorn, according to his testimony, went back to Scott Bond & Sons to collect the subscriptions, and an agreement was then made between them that L. B. Jones & Son should advance the money to pay for the material and the construction of the bridge, and that, in consideration thereof, Scott Bond & Sons would pay their own subscription as well as the subscriptions obtained by them from other parties, and that the same should be charged to Scott Bond & Sons by L. B. Jones & Son..

There is a sharp conflict in the testimony, but, in ' order to test its legal sufficiency, we must give it the highest probative force of which it is susceptible. Accepting the testimony of Thorn as true, it establishes the fact that L. B. Jones & Son advanced the money for the payment of the bridge upon faith of the agreement with Scott Bond & Son that they would pay the subscriptions amounting to $340. This testimony thus established an' original contract, made upon sufficient consideration, and it was not a contract to answer for the default of another, which is within the Statute of Frauds. The consideration for the promise of Scott Bond & Sons was the undertaking of L. B. Jones & Son to advance the money for the payment of the bridge. The mutual undertakings of the parties afforded sufficient consideration to support the contract of either. The contract was not to answer for the debt or default of another, but an agreement, based upon sufficient consideration, to pay a stated amount. The evidence is therefore sufficient to sustain the verdict.

The only other assignment of error is based upon rulings of the court permitting appellees to introduce testimony concerning the operation of the business at Madison after the purchase of the assets by appellant at the -bankrupt sale. The court permitted appellees’ counsel to interrogate witnesses concerning the method of conducting the business at Madison and the participation therein of the members of the old firm of Scott Bond & Sons. The evidence was sought to be brought out by appellees that appellant was not the sole owner of the account, and that there was an absence of necessary parties. It was competent to prove that appellant was not the sole owner of the debt, but, on the contrary, was a member of the copartnership which owned the debt. It is unnecessary to determine now whether or not the evidence was sufficient to establish that fact, but appellees were entitled to introduce testimony in an effort to prove it. We think there was no error in the rulings of the coirt in this regard.

Judgment affirmed.


text:
    Culberson v. Lakella Iron Works.
    Opinion delivered March 29, 1926.
    1. Mines and minerals—lien for labor on machinery of oil well.—Reservation of title in a sale of an oil-well drilling rig, made prior to the passage of Acts 1923, p. 499, giving a lien to persons “working in or about drilling or operation of any oil or gas well” on the machinery and equipment, was paramount to such lien, as the enforcement of a lien thereunder against the vendor would have the effect of impairing the obligation of the contract with the purchaser.
    2. Sales—reservation of title—remedies of vendor.—One who sells personal property with reservation of title, upon the purchaser’s default may either treat the sale as canceled and bring an action of replevin, or treat the sale as absolute and sue for the purchase money.
    3. Sales—reservation of title—rights of purchaser..—In case of a sale of personal property with reservation of title, the original purchaser or one subsequently acquiring rights therein or liens thereon has the right to pay the balance of the purchase price, so as to prevent the seller from retaking the property.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    reversed.

      L. B. Smead and Harry Meek, for appellant.

      J. Bruce Streett and W. Garland Streett,' for appellee.
   McCulloch, C. J.

Appellee instituted this action in the circuit court of Ouachita County against M. J. Jones to recover on account for repairs made on an oil well drilling rig, and to enforce a lien on the rig, claimed under the statute enacted by the General Assembly of 1923, giving a lien to persons “working in or about drilling or operation of any oil or gas well” on “all the machinery, tools, equipment and implements used in such drilling or operation of such oil and gas well.” Acts 1923, page 499.

The defendant Jones made no defense, and a judgment by default was taken against him.

Appellant, as receiver for Lucey Manufacturing Corporation of Texas, filed an intervention, claiming the right to recover the property involved in the controversy as owner under a conditional sale contract executed by Lucey Manufacturing Corporation to Jones. Appellant alleged, in the intervention, that the property in controversy was owned by Lucey Manufacturing Corporation of Texas, and that the same was sold by- the owner under a contract, whereby the title was reserved in the seller until payment of the note given for the purchase price. A copy of the note and contract was exhibited with the complaint of the intervener. It was also alleged in the complaint of the intervener that the note had not been paid in full, but that there was a balance of $900 due thereon with interest. The prayer of the complaint of the intervener was that he recover possession of the property in controversy free from any lien of the appellee.

The court sustained the demurrer of appellee to the complaint of appellant, and upon refusal to plead further the complaint was dismissed.

Counsel for appellant contend that under the statute appellee is not entitled to a lien -at all, and also urge other reasons why the judgment of the circuit court in dismissing appellant’s complaint should be reversed. But we content ourselves with deciding the case upon the single contention that the sale of the property made by the Lucey Manufacturing Corporation of Texas and the reservation of title to secure the purchase money took place prior to the enactment of the statute under which appellee asserts a lien; -hence the statute is not applicable as the enforcement of a lien thereunder against appellant would have the effect of impairing the obligation of the contract with its purchaser. Whitmore v. Harper, 168 Ark. 1079. The sale was made and the note for the purchase price containing the reservation of title given on December 2, 1922, which was before the enactment of the statute in question. ■ The court erred therefore in sustain- - ing the demurrer.

Appellant, as the receiver for the vendor of the property, has the remedy of treating the sale as canceled and bringing suit for possession of the property, or treating tlie sale as absolute, aud suing for tlie unpaid purchase price. In this instance appellant has elected to pursue the former remedy, and is therefore entitled to recover possession unless the debt is paid. Olson v. Moody, Knight. & Lewis, Inc., 156 Ark. 319.

The original purchaser, or any one else subsequently acquiring rights therein or liens thereon, has the right to pay the balance of the purchase price, so as to prevent the seller from taking back the property under the terms of his contract.

The judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


author: Hart, J.,

text:
    Jonesboro, Lake City & Eastern Railroad Company v. Wright.
    Opinion delivered March 29, 1926.
    1. Master and servant—section hand riding gn motor car.—A section hand riding home from work on one of the master’s motor cars was entitled to be treated as an employee.
    2. Negligence—concurring acts.—Where the negligent acts of two persons concur to produce an injury, the author of either negligent act is liable to the injured party for the damages sustained.
    3. Master and servant—care for servant’s safety.—Where a section hand was riding home from work on one of the master’s motor cars, it was the master’s duty to exercise ordinary care for his safety while carrying him home from work, and it was also its duty to make reasonable inspection to see if the motor car was in safe condition.
    4. Railroads—care in operation of motor car.—While the statutory duty of keeping a lookout applies only to the operation of trains, and not to motor cars operated on a railway track, it is the duty of persons operating such cars to maintain a lookout when approaching a public crossing.
    5. Master and servant—negligence—jury question.—Where defendant’s employee was injured in a collision between an automobile and the motor car on which plaintiff was riding home from work, and the jury might have found from the evidence that the accident was caused by the negligence of the driver of the motor car or by the concurring negligence of the drivers of the motor car and automobile, the case was properly submitted to the fury.
    6. Master and servant—negligence in operation of motor car.— It was proper to instruct the jury, in determining whether the driver of defendant’s motor ear failed to keep a lookout for approaching vehicles at a public crossing, to consider the nature of the public crossing and all of the surrounding circumstances as shown by the evidence.
    7. Master and servant'—instruction as to contributory negligence.—It was not error to instruct the jury that plaintiff, riding home on defendant’s motor oar, was required to exercise reasonable care for his own safety, as the law does not require of him the exercise of the highest degree of care for his own safety.
    8. Damages—permanent injuries—instruction.—Where plaintiff, sixty years old, was confined to his bed for five months after the accident, had a leg crushed and a foot mashed, had his collarbone broken and a depression in his head, and a medical witness testified that, in his opinion, plaintiff’s injuries were permanent, the question of permanent injuries was properly submitted to the jury.
    9. Damages—excessiveness of award.—Upon proof of permanent injuries to plaintiff, and that he suffered excruciating pain for several weeks, that he had an expectancy of thirteen years and had been earning $2.25 per day, an award of $5,000 was not excessive.
    Appeal from Craighead Circuit Court, Lake City District; G. E. Keck, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This is an action by J. W. Wrigbt against the Jouesboro, Lake City & Eastern Railroad Company to recover damages for' personal injuries received by him while riding upon a motor car from work, which was being driven by another employee of the company. Wright and six other employees were riding on the motor car from their place of work on the section to their homes in Blytheville, Arkansas. The injury to Wright was caused by a collision between the motor car and an automobile at a public crossing in Blytheville.
    It appears from the testimony of J. W. Wright and of another witness for him, that lie was working on the section gang for the railroad on the day of the accident. He was sixty years of age, and had been working on railroads most of his life. The section gang was returning home from work on the motor car, which was driven by Charlie Chandler, one of the section hands. The railroad runs through the Chicago Mill yard about a quarter of a mile in the city of Blytheville. The car was going 'between 15 and 20 miles an hour as it approached the crossing at Twenty-first Street, in the city of Blytheville. Just before the car got to the crossing, the plaintiff saw an automobile approaching the crossing and told Chandler, the driver, to be careful. The driver of the motor car never attempted to stop it. The plaintiff saw an automobile pass over the crossing ahead of the motor car, but did not see the automobile which collided with motor car. The plaintiff was watching the shovels and tools on the motor car, and holding them in place.
    Another one of the section hands testified that the motor car had defective brakes on it, and that when it was going fast it would take about three rail lengths to stop it. The motor car did not check its speed after it turned the curve and approached the public crossing at which the accident happened. When the motor car got about forty feet from the crossing, the witness saw an automobile about fifty yards south of the track, going towards the crossing at a speed of between 15 and 20 miles an hour. It looked like it might reach the crossing about the time the motor car did, and the section hands commenced hallooing and waving their hands for him to stop. Both wheels of the automobile struck the motor car near the middle when it was about the center of the crossing. All of the section hands on the motor car, except the witness, were injured, and the plaintiff was hurt worse than any one. According to his testimony, the speed of the motor car was between four and six miles an hour.
    Other witnesses testified that the motor car was running between 15 and 20 miles an hour, and that the automobile was running at the rate of between 15 and 20 miles an hour.

      W. D. Chamblin, the owner of the Ford tonring car which collided with the motor car of the railroad company, was also a witness for the plaintiff. According' to his testimony, the automobile was about five months old, and in good condition. An automobile passed over the crossing just ahead of him, and, just as he started to drive his car over the crossing, the motor car shot out in front of him from the Chicago Mill yard, and struck his car. He did not see the motor car before it got on the crossing. The motor car was running* about 20 miles an hour. It was within three feet of him when he saw it. His brakes were in good condition, but he saw* the motor car too late to avoid a collision. The motor car was running faster than his automobile. It . was getting dark when the collision occurred. It had been raining, and all of the curtains were up on the automobile. The driver of the automobile does not think that he was going more than 15 miles an hour.
    Evidence was adduced by the plaintiff showing the character and extent of his injuries, which will be stated under an appropriate heading in the opinion.
    The defendant adduced evidence tending to show that the accident was caused by the negligence of the driver of the automobile.
    . Prom a verdict and judgment rendered against it, the defendant has duly prosecuted an appeal to this court.

      Eugene Sloan, for appellant.

      Sam Costen and Wils Davis, for appellee.
   Hart, J.,

(after stating the facts). It is first insisted that the judgment should be reversed because the court erred in not directing a verdict for the defendant. We cannot agree with counsel in this contention. At the outset it may be stated that the plaintiff was-a section hand, and riding home from work on one of the defendant’s motor cars, and was entitled to be treated as an employee at the time the injury occurred.. St. Louis S. F. R. Co. v. Barron, 166 Ark. 641, and Arkansas Land & Lbr. Co. v. Cook, 157 Ark. 245.

It is also the settled rule of law in.this State that, where the negligent acts of two persons concur to produce an injury, the author of either negligent act is liable to the injured party for the damages sustained; Jenkins v. Midland Valley Rd. Co., 134 Ark. 1; Bona v. Thomas Auto Co., 137 Ark. 217; Arkansas Land & Lumber Co. v. Cook, 157 Ark. 245; and Johnson v. Mo. Pac. Rd. Co., 167 Ark. 660.

According to the evidence for the plaintiff, he was going home from work in a motor car of the defendant, and was still in its service, under the authorities above cited. It was the duty of the defendant to exercise ordinary care for his safety while carrying him home from work, and it was also its duty to make reasonable inspection to see if the motor car was in safe condition. In this connection it may be stated that, while the statutory duty of keeping a lookout applies only to the operation of trains, and not to motor cars operated on railway tracks, it is the duty of persons operating such cars to maintain a lookout when approaching a public crossing. Cook v. Mo. Pac. Rd. Co., 160 Ark. 523. Bearing in mind these well-settled principles of law, the jury might have found that the driver of the motor car failed in his common-law duty to keep a lookout for vehicles which he might anticipate would cross the railroad track .at a public crossing, and the jury might have found under the evidence that the driver of the motor car was guilty of negligence in this respect, which caused the accident, or that the accident was caused by the concurring negligence of the driver of the motor car and of the driver of the automobile. Therefore the evidence was legally sufficient to support the verdict.

It is next insisted that the court erred in giving instruction No. 2, which reads as follows:

“If you find from a preponderance of the evidence that, at the time of the collision and injury, the operators in charge of said motor car were running same at an excessively high and reckless rate of speed, taking into consideration the nature of the road crossing that they were approaching and all of the circumstances and conditions as they existed there at that time, then the defendant would he guilty of negligence; and if you further find that such negligence was the proximate cause of the injury, your verdict should be for the plaintiff, unless you find that the plaintiff was guilty of contributory negligence as hereinafter defined, in which event your verdict should be for the defendant.”

Special objection was made to the following: “taking into consideration the nature of the road crossing that they were approaching and all of the circumstances and conditions as they existed there at that time,” and counsel for the defendant asked that this portion of the instruction be stricken out, because it permitted the jury to exercise its opinion without testimony in determining what were the circumstances and conditions existing there at the time. We do not agree with counsel in this contention. In deciding whether the driver of the motor car failed in his common-law duty to keep a lookout for approaching vehicles at the public crossing, it was proper for the .jury to take into consideration the nature of the public crossing and all of the surrounding circumstances as shown by the evidence. In no other way could they properly decide whether or not the driver of the motor car had failed in his common-law duty in the matter of keeping a lookout for vehicles approaching the public crossing.

It is next insisted that the court erred in giving instruction No. 9, which reads as follows:

“It was 'the duty of the plaintiff to exercise reasonable care for his own safetythat is, the same degree of care that an ordinarily reasonable, prudent and cautious man would have exercised under the same circumstances; and if you find from the evidence that the plaintiff failed to exercise such reasonable care for his own safety, he would be guilty of negligence, and if you find that such negligence caused or contributed to the injury, then that would be such contributory negligence as would prevent him from recovering in this case, and your verdict should be for the defendant.”

Counsel for the defendant made special objection to this instruction,, because it told the jury that the plaintiff was required to exercise only reasonable care for his own safety, when it should have told the jury that it was his duty to exercise the highest degree of care for his own safety under the circumstances.

There was no error in giving this instruction. The plaintiff was being carried home on the motor car, and under the authorities cited above it was the duty of the defendant to exercise ordinary care in the operation of the motor car. In other words, whether Chandler, the driver of the motor car, was negligent or not depended upon whether he, by the exercise of ordinary care, might have seen and anticipated the approach of the Ford touring car. It was likewise the duty of the plaintiff to exercise ordinary care for his own safety. According to his testimony, he saw an automobile, and told Chandler, the driver of the motor car, to be careful. He was not required to exercise any higher degree of care for his own safety than the defendant was required to exercise in the discharge of its duty to him.

It is next insisted that the court erred in refusing to give instruction No. 1 at the request of the defendant, which reads as follows: “You are instructed that there is not sufficient evidence to show or prove that the plaintiff’s injuries are such that will result in a permanent injury, and you will therefore not consider this item in arriving at the amount of damages that you may fix if-you should find that the plaintiff was damaged. ’ ’

There was no error in refusing to give this instruction. According to the testimony of the plaintiff, he was sixty years of age, and was confined to his bed about five months after the accident happened. One leg was crushed, one foot was mashed or knocked in, and his collar-bone was broken. His leg was broken between the knee and the ankle. He had been injured seven months at the time he testified, and there was still a depression in his head. His heel was still sore, and he was walking on crutches.

According to the testimony of Dr. F.» B. Elliott, the plaintiff was in the hospital six weeks after be was injured, and seemed to suffer a great deal. He examined the plaintiff a few days before the trial, and he seemed to be suffering- at that time. The plaintiff is too old to get a sufficient union and sufficient use of the muscles to get about like he once did. The plaintiff will be in a weakened condition, and the witness did not believe that he would ever walk without the aid of crutches. He believed that his injuries were permanent.

This testimony was sufficient to warrant the court in submitting to the jury the question of permanent injury. ...

... Finally it is insisted that a verdict for $5,000 is excessive. The medical and hospital bills of the plaintiff amounted to something like $350. He was making from $2.25 to $2.50 per day, and in addition to the fact that he was permanently injured, as detailed above, it may be said that the testimony of the plaintiff and that of his physician showed that he suffered excruciating-pain for several weeks. As the plaintiff expressed it, he suffered death for four weeks. He was still, suffering-pain at the time of the trial, which was seven months after he received his injuries. His life expectancy was 13.53 years. Dr. Elliott testified that the plaintiff seemed to suffer about as much as a man could, and that this continued for a period of weeks. Under these circumstances it can not be said that the verdict of the jury is 'excessive.

It follows that the judgment will be affirmed.


author: Smith, J.

text:
    Blackburn v. Blackburn.
    Opinion delivered March 29, 1926.
    1. Executors and administrators—sale of land free from dower—estoppel.—Where decedent’s widow qualified as his administratrix, and to pay his debts procured an order for the sale of his land, which, recited that the widow consented to take her dower in the land out of the proceeds of the sale, and she conducted the sale pursuant to such order, she will be estopped to deny that the land was sold free from her dower.
    2. Witnesses—privileged communication.—In a suit to reform the deed of an administratrix, who was also decedent’s widow, to show that the land conveyed therein was sold free from the widow’s dower, testimony of the attorney of the administratrix that he drew up and had entered an order for the sale of decedent’s land free from the widow’s dower, and that by mistake the relinquishment of dower was left out of the deed executed by her, was competent, not being a privileged communication.
    Appeal from Sebastian Chancery Court; Fort Smith District; J. V. Bourland, Chancellor;
    reversed.

      E. P. Hardin and John Brizzolara, for appellant.

      A. A. McDonald, for appellee.
   Smith, J.

This suit was brought to reform an administratrix’s deed, and at the trial from which this appeal comes the following facts were developed:

W. H. Blackburn died intestate, and at the’ time of his death owned certain lots in the city of Fort Smith, and his wife, Mrs. Grussie Blackburn, qualified as administratrix of his estate. There were two mortgages outstanding against these lots, and certain debts were probated against the estate. The administratrix filed a petition for an order to sell the real estate in satisfaction of the probated demands, and at its July term, 1919, the probate court of the Fort Smith District of Sebastian County made an order authorizing and directing the administratrix to sell these lots. This order recites that the administratrix had no money or personal property on hand to pay the debts, and that no one contested the prayer of the petition. The probate court found that it was necessary to sell the land to pay the debts, and directed what the terms of sale should be. This order recites that, “the widow of the said W. H. Blackburn, consenting thereto and agreeing to take her dower in said real estate out of the proceeds of said sale, said real estate will be sold free of the widow’s dower.”

In another order of the probate court, made at the October, 1920, term,. it was recited that the intestate owned $’250 worth of personalty at the time of his death, and this real estate, incumbered with two mortgages, in the execution of both of which the wife had joined, conveying her dower. The order recited the sale of the land, and what the net proceeds had been, and what the value of the wife’s interest would be in both the personal property and the real estate, and upon this finding assigned dower, the order reciting that the sum declared to be the value of the dower interest “be paid by the administratrix herein out of the estate herein to the widow, Mrs. Gussie Blackburn, in full, final and complete settlement of her dower in this estate.”

After selling the land the administratrix, as such, executed a deed on June 2, 1920, to Malinda Blackburn, who, on May 9,1922, conveyed the lots by warranty deed to Mrs. Icyphenia Ann Blackburn. Mrs. Gussie Blackburn conveyed to Mrs. Malinda Blackburn only as administratrix, and there were no recitals in this deed that the dower interest was being conveyed. After receiving a deed from Mrs. Malinda Blackburn, Mrs, Icyphenia Ann Blackburn brought this suit to reform the deed of the administratrix to her grantor.

After introducing the deeds and the probate judgments referred to, the plaintiff called Mr. G. O. Hardin as a witness, and offered to prove by him that 'he was attorney for Mrs. Gussie Blackburn as administratrix of the estate of W. H. Blackburn, deceased, and that as her attorney he drew up and had entered the orders of the probate court referred to, and that the land was sold free of dower, but, by mistake, the relinquishment of dower was left out of the deed to Malinda Blackburn. Objection was made to the witness testifying, and the court held the testimony incompetent.

Mrs. Gussie Blackburn, testifying in her own behalf, afl-mitted the execution of the deed sought to be reformed, but she testified that she did not know what her rights as widow were, and that those rights were not explained to her, and that she would not have understood, had an explanation been made. .She further testified that she had been requested to sign a quitclaim deed to Mrs. Blackburn, but stated that she refused to do so because her husband had a policy of insurance on his life which he intended for his children to have, but which had been made payable to his mother, who was the plaintiff in this suit. Mrs. Icyphenia Ann Blackburn collected the insurance money, and refused to pay it over as she had agreed to do. Other testimony shows the intention of the insured to change his beneficiary, but he never did so.

We regard the testimony concerning this insurance policy as unimportant. The fact is that the beneficiary was not changed in the policy, and that fact was known when the above recited orders and judgment of the probate court were rendered.

The widow, as administratrix, conducted the sale of the land pursuant to the order which recited the agreement on the part of the widow for the land to sell free of dower. On the plainest principles of equity the widow is therefore estopped to deny that her dower was sold.

We think the facts stated sufficiently appear without the testimony of the attorney, which the court excluded; but we are also of the opinion that this testimony was competent. This was not such a privileged communication as the statute prohibits an attorney from testifying about. Section 4146, C. & M. Digest, provides that all persons except those therein enumerated shall be competent to testify in •civil actions, and by the fourth subdivision of this section it is provided that an attorney shall not be permitted to testify “concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent.” The communication between the attorney and the client on this subject was not intended to be confidential; on the contrary, it was a matter of which the public, and .especially prospective bidders, were to be advised, to the end that the lots, when sold, should bring the highest possible price, and the excluded testimony was not therefore within either the spirit or the letter of the statute quoted. Milan v. State, 24 Ark. 346; Nolen v. Harden, 43 Ark. 307; Vanness v. Vanness, 128 Ark. 543; Kilgo v. Continental Casualty Co., 140 Ark. 336.

The court below denied the relief prayed, and in support of that decision counsel for appellee quote from the opinion in the case of Webb v. Smith, 40 Ark. 17, the following declaration of law by Chief Justice English: “Lands are assets in the hands of an administrator for the payment of debts. But homestead and dower rights are (in the absence of certain special liens) superior to the claims of 'creditors. The application of the administrator for an order of sale must be treated as an application for an order to' sell the real estate to the extent that it was assets in his hands subject to the payment of debts. The question of dower and homestead was not presented to the probate court for ¡adjudication on such application. The widow and minor heirs were not called upon by the public notice of such application to appear in the probate court and set up any right or claim to dower and homestead or either. So much of the order therefore as directed the undivided half interest of the estate in the part lot in question to be sold free of the incumbrance of dower, etc., was the exercise of an excess of jurisdiction by the probate court, and null ¡and void, and the sale made by the administrator under it, and purchased by appellant, did not bar any right of dower which appellee had in the part lot. Livingston v. Cochran, 33 Ark. 306.”

But following this statement of the law it was there also said: “There is no question of estoppel in the case. The answer alleges that appellee bid off and purchased the four homestead lots at the sale. Had it alleged that she was personally present when the administrator offered the part lot for sale, that he proclaimed it to he sold discharged of her dower, that she had heard the proclamation, and was silent, then the question of estoppel, she being at the time a married woman and not sui juris, would have been presented. But such allegations are not made by the answer. See Wood v. Terry, 30 Ark. 385.”

Here there is a question of estoppel. The widow must necessarily have known that the order of the probate court under which she proceeded to sell recited that, with her consent, the land would be sold free from any claim of dower, and having by the sale invited bidders thus to bid, the widow has estopped herself to question the authority of the court to make the order under which the sale was conducted.

It follows therefore that appellant should have been awarded the relief prayed, and the decree of the court below will therefore be reversed, and the cause remanded with directions to reform the deed to convey the dower. Cates v. Cates, 157 Ark. 181.


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

text:
    Pearson v. Humphreys.
    Opinion delivered March 29, 1926.
    Evidence—burden of proof.—Decedent’s widow alleged that she had advanced $300 to defendants in consideration that they would discharge a note of decedent for that sum and would probate a claim against her husband’s estate for that sum and' assign such , claim to her, and that defendants had failed to probate and assign the claim; defendants admitted the alleged agreement, but alleged that they had complied with it. Held that the burden was on defendants to- prove such compliance.
    Appeal from White 'Circuit Court; E. D. Robertson, Judge;
    reversed.

      John D. DeBois, for appellant.

      John E. Miller and Cul L. Pearce, for appellee.
   Smith, J.

Appellant brought suit against appellees to recover the sum of $300, which she alleged she had loaned them. Her testimony supporting the allegations of her complaint was to the effect that she had loaned appellees $300 upon their promise to repay, which they had refused to do upon demand, wherefore she sued.

Appellees alleged in their answer that they had, for accommodation, signed the note of F. W. Pearson, who was appellant’s husband, to the order of B. O. Ward for $300; that Pearson had died, and W. S. Coffman had been appointed administrator of his estate. They admitted receiving the $300, but denied that it was a loan, and alleged in the answer that the facts in regard to the transaction were as follows: That the plaintiff at the time agreed to pay said note, if these defendants would induce the holder to forego payment of interest, and if they would also file a claim against the estate of her deceased husband for said sum, and assign said claim to her, so she would be reimbursed out of the proceeds of her husband’s estate; and that these defendants took her personal check for $300 upon said conditions, delivered it to the holder of said note, taking the note as a receipt for said sum, and filing it with the administrator in the manner provided by law, and thereupon assigned their interest in said note and claim to plaintiff.

Appellee Williams testified that he received the $300 from appellant and paid Ward the note, which at that time amounted with the interest thereon to the sum of $332.50. At the time the note was paid, Ward made the following indorsement on the back of the note: “Aug. 1, 1922. Received payment on the above date by Ernest Williams and Thomas Humphrey. (Signed) B. O. Ward.”

Appellees then made the following additional indorsement on the note: “Bradford, Ark., Aug. 4, 1922. Estate of F. W. Pearson, Dr. Ernest Williams and Thomas Humphreys. Amount paid as securities on this note, $332.50.” This indorsement was signed by both appellees. Attached to the note thus indorsed was an affidavit signed by both appellees that the above account was true, correct, and unpaid.

Appellee Williams, who appears to have acted for himself and his co-appellee Humphreys, testified tha-t, pursuant to his agreement with appellant, he filed the note with the administrator of Pearson’s estate. He did not know what action the administrator had taken after delivering the note to the administrator for allowance, and did not know whether it had ever been assigned, although he testified that' he told appellant he would have it assigned, probated and allowed.

The court gave, at the request of appellant, an instruction telling the jury to find for appellant if they found the fact to be that she had loaned the money to appellees. The verdict returned was in appellee’s favor, so the jury must have found that the transaction was not a loan.

Appellant sought also to have the jury pass upon the question whether appellees had complied with the agreement whereby they received the money if-it were not a loan, and upon this phase of the case requested instructions to the effect that, if appellant let the appellees have the $300 with the understanding that they would pay the note with this money and assign their interest in the note to appellant, and would probate the note after thus paying it, but failed to probate or assign their interest therein to appellant, to find for the plaintiff.

The court refused to give any of the instructions requested by appellant on this issue, but did give the following instruction on the subject: “Number 1. You are instructed that, if you find that the plaintiff agreed to pay the note that had been executed by her husband, and signed by the defendants as sureties in consideration of the waiver of the interest on the note and the agreement on the part of the defendants that they would file a claim against the estate of her husband, that the claim was to belong to her, and that this was done, then, under the law, you should return a verdict for the defendants,”

This instruction did not require the jury to find, before returning a verdict for appellees, all that their answer alleged they agreed to do. The answer alleged an agreement to assign the note to appellant, and to file the assigned, claim with the administrator for allowance, and to have it probated. No attempt was made to show that the claim was assigned to appellant. Williams testified that he supposed appellant knew the claim had been filed for allowance, as that was the agreement, but he did not testify that he had told appellant he had done so. He also admitted that he did not know whether the administrator knew anything about the agreement he had with appellant.

The clerk of the probate court- was called as a witness, and testified that the administrator had made his final settlement, and had been discharged, and that the note in question was found among the papers of the estate which the administrator filed with his final settlement, but the note had never been allowed or rejected as a claim against the estate, either by the court or by the administrator.

Appellant testified that she knew nothing about the filing of the note with the administrator, and had no agreement that this should be done. There was no evidence whatever that appellant was in any manner previously liable on this note, and the evidence is undisputed that the $300 advanced by her was her individual money.

Over the objection of appellant, the jury was instructed that the burden of proof was on appellant.

The statute provides that the burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side (§ 4113, C. & M. Digest), and we are of the opinion that the court was in error in telling the jury that the burden of proof rested upon appellant.

Under the pleadings in the case we think appellant would have been entitled to a judgment under the admissions of the answer if no testimony had 'been offered by appellees to support their allegations of compliance with the agreement under which the money was received. It is undisputed, in fact admitted, that appellees received the money, and it is not contended that it was a gift. Appellees were liable as joint makers of the note to Ward. Appellant was riot liable in any manner. Appellees admit receiving the money under an express agreement on their part to pay the note, for which they were liable as accommodation makers, and to assign and probate it, and the agreement to assign and probate was in the nature of a plea of payment. When appellees received this money, they assumed a legal obligation in regard to it, and the burden was upon them to show a performance of the agreement in consideration of which they received the money. As we have said, the jury has found that the transaction was not a loan, but that finding is not decisive of appellees’ liability. The question remains, under the issues joined, what obligation did appellees assume, in consideration of the payment to them of the $300, and have they discharged the agreement whereby appellant let them have the money?

Having admitted the receipt of the money, the court should have submitted to the jury the questions: (a) What was the agreement whereby appellees were paid this money? (b) Have appellees performed their agreement? Having alleged that the transaction was not what it appeared to be, to-wit, a loan, under an implied, if not express, promise to repay, the burden was upon appellees to show what the transaction was if it were not a loan, and whether they have performed the undertaking on their part which induced appellant to let them have the money.

The judgment of the court below will therefore be reversed, and the cause remanded with directions to submit these issues to the jury.

McCulloch, C.J.,

(dissenting). Appellant sought to recover on the. sole ground that appellees had borrowed $300 from her and failed to repay the same. Appellees denied that they had borrowed the money from appellant. This was the only issue involved in the trial, and it was submitted to the jury in. appropriate instructions.

In instruction No. 1, given at the instance of appellant, the court told the jury that if the plaintiff ‘ ‘ did lend to defendant $300 to apply in payment of a note they owed one B. O. Ward for an indefinite time, and she has demanded payment therefor, before starting this suit, and the same is not paid, you will find for .plaintiff for her debt and interest.” It is true that appellees, after denying that they had borrowed the money of appellant, went further, and stated that it was advanced to them by appellant merely for the purpose of use in payment of the Ward note, and that they were to assign the claim to appellant and probate it against the estate of appellant’s husband, but those allegations were not essential part of the defense, the question at issue being whether or n,ot appellees borrowed the money. It being admitted that the sum of money named was in fact turned over to appellees, the substance of the agreement was the turning point of the question of the liability of appellees for the payment of the money. The real issue was whether or not the money had been borrowed from appellant by appellees, for that was the only theory upon which appellant sought to recover, and upon no other theory was appellant entitled to recover in the present action. She did not sue upon any allegations of loss or damages by reason of the breach of the agreement to probate the claim against her husband’s estate and to assign the claim to her. Indeed, the assertion of such a right of action would have been inconsistent with the right of action actually asserted in the complaint to recover for borrowed money. If appellant had sued for breach of the contract to assign the claim, then other elements might have entered into the defense.

My conclusion is that the court correctly submitted the only issue in the case to the jury, and that there was no error in refusing other instructions requested by appellees.

I am also of the opinion that the majority have reached the wrong conclusion in regard to the burden of proof. The issues in the case being whether or not appellees borrowed the money, the burden of proof rested upon the appellant to prove her case by showing that she lent the money to appellees. It was not a part of appellees’ defense to show what became of the money or whether or not they performed a collateral agreement with reference to the disposition of it. All that appellees had to do was to meet the issue as to the money being borrowed, and the burden of proof on that issue did not rest upon them. No affirmative defense being pleaded, the burden of proof never devolved on appellees.

Mr. Justice Hart concurs in the views herein expressed.


text:
    Lawson v. Barbee.
    Opinion delivered March 29, 1926.
    1. Insurance—certificate op mutual benefit society—change of beneficiary.—The holder of a benefit certificate issued by a mutual benefit society has no power to" change the beneficiaries named therein unless expressly authorized to do so by the policy itself, or by the articles of. association or by-laws of the society, where these are by the terms of the certificate made a part of it.
    2. Insurance—benefit certificate;—change of beneficiary.— Where a benefit certificate is silent on the subject of changing the beneficiary, and the constitution authorizes such change only upon an affidavit of the present beneficiary expressing a willingness, a change without the assent of the original beneficiary is unauthorized.
    Appeal from Jefferson Circuit Court; T. G. Par-ham, Judge;
    affirmed.

      Williams & Holloway, for appellant.

      A. F. Triplett, for appellee.
   Smith, J.

This litigation is between parties claiming to be beneficiaries under a benefit certificate issued by tbe Grand Court of Calanthe, Knights of Pythias, upon the life of Callie Barbee, dated November 29, 1912. The insured died, and the -fraternal order which issued the certificate admitted its liability thereon, and has paid the amount thereof into court. The certificate was payable to the children of the insured, who brought this suit, and Annie Lawson, a niece of the insured, intervened and was made a party, and filed an answer and cross-complaint, in which she alleged that the insured had, before her death, changed the beneficiary in said certificates by designating the intervener as the beneficiary.

The issues in the case were so framed that the case was disposed of on a demurrer to the answer and cross-complaint of the intervener, Annie Lawson. An amended complaint was filed, exhibiting the certificate sued on, and it was alleged in the amended complaint that the certificate was not assignable, and that the only provision in the constitution and by-laws of the defendant fraternal order concerning designation and change of beneficiary in the benefit certificates issued by the order was contained in § 13 of article 16 of the constitution, which reads as follows:

. “Application for policies for new members must be accompanied with a medical certificate approved by the grand medical register, $0.05 for such approvals, $0.50 for new policy and endowment’ for current quarter in which member joins. When a policy is received by local court, name of beneficiary must be inserted in the assignment on the back of policy in the presence of the court with the worthy chancellor and register of deeds as witnesses. Any old member desiring to raise a policy must be examined, and send approval of grand medical register with fifty cents to the office of grand register of -deeds. In making application for duplicate policy when misplaced, lost or destroyed, same must be accompanied by sworn affidavit, acknowledged by notary public, stating- cause for same, and, if assignment is to be changed, by sworn affidavit of the same kind of willingness on the part of the present beneficiary before she can obtain duplicate. Such policies shall bear both date of issue and date of first endowment.”

The alleged change in the beneficiary was made only five days before the death of the insured, but it was not alleged that the original beneficiaries had consented to the change, and no action was taken in regard to the change of beneficiary by the defendant fraternal order, but it is conceded that the attempted change of beneficiary was in form sufficient to support that action if there was in fact a right to change the beneficiary without the consent of the* beneficiaries named in the certificate.

The question presented for decision is. therefore ■ whether the insured had the right to change the beneficiary without the consent of the beneficiaries named in the certificate.

In the case of Johnson v. Hall, 55 Ark. 210, this court, following its previous holding in the case of Block v. Valley Mutual Ins. Assn., 52 Ark. 201, held that “a certificate issued by a mutual benefit society by which it agrees, 'at the holder’s death, to pay a certain sum of money to the holder’s children, constitutes an ordinary policy of insurance; and the holder has no power to change the beneficiaries named in the certificate unless expressly authorized to do so by the policy itself, or by the articles of association or by-laws of the society, where these are by the terms of the policy made a part of it.”

In the case of Caruth v. Clawson, 97 Ark. 50, the court quoted the above language, and proceeded to say: “'Since those decisions were rendered by this court, the adjudged cases on the subject in the courts of the country have multiplied greatly, and the authorities are conflicting. It is unnecessary to determine where the weight of authority on the subject rests at this day; this court deliberately took position on the question, and we deem it inadvisable to change, even though the weight of authority be found now to be against us.”

The certificate sued on is exhibited with the complaint, and it is silent on the subject of changing the beneficiary.

The complaint alleges that the only provision on the subject found in the constitution and by-laws is contained in § 13 of article 16 of the constitution, which we have quoted in full. The relevant portion of this section of the 'Constitution is the part reading as follows: “In making application for duplicate policy when misplaced, lost or destroyed, same must be accompanied by sworn affidavit, acknowledged by notary public, stating cause for same, and, if assignment is to be changed, by sworn affidavit of the same kind of willingness on the part of the present beneficiary before she can obtain duplicate.”

Provision is there made for the issuance of a duplicate policy when the original is misplaced, lost or destroyed. It is there further provided that “if assignment is to be changed,” which may mean if the beneficiary is to be changed, this may be done by making the same kind of affidavit required to obtain a duplicate in case the original certificate is misplaced, lost or destroyed, that is, one acknowledged by a notary public, stating cause, but this affidavit is to be accompanied “by sworn affidavit of the same kind of willingness on the part of the present beneficiary before she can obtain duplicate.”

This language is very ambiguous, but if it be construed to mean that the beneficiary may be changed, the application requesting the change must be accompanied by an assent to the change on the part of “the first beneficiary” before the change can be made by the issuance of a duplicate or a new certificate.

An undenied allegation of the amended complaint is that the original beneficiaries, the plaintiffs in the case, did not assent to the change of beneficiary, and we must therefore hold that there was no authority to make the change. This is true because, as we have said, the only provision of the constitution or by-laws permitting a change of beneficiary authorizes the change only upon the condition that the original beneficiary consents thereto..

The court was correct therefore, under the pleadings in the ease, in rendering judgment for the plaintiffs, and the judgment is therefore affirmed.


author: Humphreys, J.

text:
    Rinke v. Washington.
    Opinion delivered March 29, 1926.
    Drains—enforcement of tax lien—validity of sale.—As the collection of taxes in the Fourche Drainage District was governed by the general law for the enforcement of liens, the owner of a delinquent lot should have been made a party to the proceeding, and a suit in rem against the lot was unauthorized, and a sale thereunder was void.
    Appeal from Pnlasld Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Ben F. Reinberger, for appellant.

      June P. Wooten, for appellee.
   Humphreys, J.

This is an appeal from a decree setting aside a sale of the east ninety feet of lot 9, block 19, Worthen & Brown’s Addition to the city of Little Rock, Arkansas, for the nonpayment of an assessment of three cents levied by the receiver of Fourche Drainage District, and to cancel a commissioner’s deed made pursuant thereto.. The decree was rendered in a direct proceeding attacking the validity of the sale, which was instituted in the chancery court of Pulaski County by appellee, the owner of said lot, against a purchaser thereof, upon the alleged ground that same was made without notice to or knowledge of said appellee. The Fourche Drainage District was created under act 420, approved May 28, 1907, and the supplementary act thereto approved May 6, 1909. These creative acts were expressly repealed by § 1 of act 127, approved May 3, 1913. Section 2 of the repealing act is as follows :

“Jurisdiction is hereby conferred on the Pulaski Chancery Court to wind up the affairs of said district, and to that end all persons having claims against the district are required to present the same to said court for adjudication within three months after the passage of this act. Said court shall adjudicate said claims, and shall appoint its receiver to collect upon the assessment of benefits heretofore made a sum sufficient to pay all claims found to be due, the tax necessary for the payment thereof to be divided into five installments as near equal as possible.”

E. L. McHaney was appointed receiver for the district under the section quoted above, who made an assessment against the lands in the district, the assessment against the lot in question being three cents. He then followed the procedure in act 420 of Acts 1907, in the coiidemnation and sale of -the lots for the payment of the tax assessed against it with a penalty for the nonpayment of same and an attorney’s fee for enforcing the collection thereof. The proceeding was in rem upon notice by publication in a suit styled E. L. McHaney v. Delinquent Lands. After the expiration of the time for redemption, the commissioner of the court executed a deed to appellant for the lot, and this suit followed.

The proceeding against the lot by publication was void, as the old act authorizing such a proceeding had been repealed by § 1 of act 127, Acts 1913. Act 127, Acts 1913, provided no method for enforcing the lien, so the general law governed. In order to enforce the lien under the general law, the owner of the lot, appellee or his grantor, should have been made a party to' the proceeding, and summoned in the manner required by law. This was not done. On the contrary, an unauthorized proceeding in rem was adopted. For this reason the sale of the lot and the deed made pursuant thereto was void.

The decree is therefore affirmed.


author: McCulloch, C. J., Hart, J.,

text:
    McConnell v. McCord.
    Opinion delivered March 29, 1926.
    1. Judgment—when effective.—Where a chancery cause was heard before the chancellor on May 11, 1925, but the decree was not filed with the clerk until November 14, 1925, the decree did not become effective until the latter date, at which also the time for appeal began to run.
    2. Exceptions, bill of — certificate of bystanders.—A bill of exceptions certified by bystanders is not valid, in the absence of a showing in the record that the chancellor refused to certify it.
    3. Exceptions, bill of—who are bystanders.—Witnesses in a case are not “bystanders,” within the meaning of the statute authorizing bystanders to sign a bill of exceptions.
    4. Exceptions, bill of—bystanders’ bill.—Where a bystanders’ bill of exceptions was filed with the clerk before the decree was filed, but it does not appear that it was ever presented to the chancellor or that he took cognizance of it as a part of the record, it will not ibe considered on appeal.
    5. Appeal and error—dismissal of appeal.—Though a motion to strike out the bill of exceptions in a case is sustained, if the appeal was perfected in time, a motion to dismiss the appeal will be denied, as the judgment itself may disclose error.
    Appeal from Sebastian Cbancery Court, Greenwood District; J. V. Bourland, Chancellor;
    motion to strike bill of exceptions granted.

      B. A. Rotve, for appellant.

      Evans & Evans and George W. Johnson, for appellee.
   McCulloch, C. J.,

(on motion to strike out bill of exceptions and to dismiss the appeal). This is an action instituted by appellant against appellees in the chancery court of Sebastian County (Greenwood District), and it was tried before the chancellor in vacation by consent of parties on May 11, 1925, pursuant to statute which authorizes vacation decrees. C. & M. Dig. § 2190. The decree was signed by the chancellor on October 20, 1925, and filed with the clerk of the chancery court on November 14, 1925. The direction in the decree was that it be entered as of May 11, 1925, the day of the hearing. The decree also contained a recital of an order allowing appellants “120 days from May 11, 1925, within which to prepare and file a bill of exceptions.” Tbe case was tried on oral testimony taken -at tbe bar of tbe court, but there was no order of the court conferring- authority to a stenographer to take the testimony and file a transcript thereof as a part of the record. Berry v. McGraw, 152 Ark. 452.

A purported bill of exceptions signed by two individuals was filed with the clerk of the chancery court on November 9, 1925, and the same has been embraced in the transcript as a part of the record. The appeal to this court was granted and perfected on November 23, 1925.

The decree did not become effective until it was filed with the clerk for entry on the record, and the time for appeal did not begin to run until that date. C. & M. Dig., § 2190; Red Bud Realty Co. v. South, 145 Ark. 604. The time allowed in the decree for filing a bill of exceptions had expired when the bill of exceptions was filed on November 9, 1925, but the filing on that day was sufficient, for the reason already stated, that the decree did not become final until filed, and that the bill of exceptions was on file as a part of the record when the decree was filed. If the bill of exceptions otherwise complied with the statute, it would be rightly a part of the record.

But the bill of exceptions certified by alleged bystanders is not valid, because there is no showing in the record that the chancellor refused to certify it. Fordyce v. Jackson, 56 Ark. 594; Pearson v. State, 119 Ark. 152. Moreover, the individuals who certified the bill of exceptions were not bystanders within the meaning of the statute. C. & M. Dig., § 1322. They were witnesses in the case, and were therefore not unconcerned bystanders, such as is contemplated in the statute. Compare Boone v. Goodlett, 71 Ark. 577; Gay Oil Co. v. Akins, 100 Ark. 552; Tarkington v. State, 154 Ark. 365. A witness in a case, one who has no other connection with it, is not directly interested, but his testimony becomes a part of the record to be reviewed on the appeal, therefore is not a mere bystander. He is a participant in the proceedings. The statute contemplates that the bill of exceptions must be certified, if not by tbe trial judge, by two persons wholly out of the proceedings—'persons present but unconnected. For these reasons the majority of this court conclude that the bill of exceptions must be stricken out.

It has been suggested however that, inasmuch as the bill of exceptions was on file when the chancellor filed his decree with the clerk, the presumption should be indulged that he approved the bill of exceptions as a part of the record. This is not so, for the bill of exceptions does not comply with the statute, and no presumption can be indulged that it was presented to the chancellor, or that he took cognizance of it as a part of the record. There was nothing to give authenticity to the bill of exceptions thus filed—it was not before the chancellor when he heard the cause tried, and we think there is no ground for a presumption that the chancellor saw the bill when he filed his decree and approved it.

The motion to strike out the bill of exceptions is sustained, but, inasmuch as the appeal was perfected in apt time, and the record may or may not disclose error in the proceedings, the motion to dismiss the appeal is overruled.

Hart, J.,

(dissenting). I dissert on the ground that, under our practice, oral evidence in chancery cases may be a part of the record by having it taken down in writing-in open court, and by leave filed with the papers in the case. Fletcher v. Simpson, 144 Ark. 436. In the case at bar the oral evidence taken before the chancellor was filed on November 9,1925, but the decree was not entered of record until November 14, 1925. Under the circumstances, I think the filing of the oral evidence taken before the chancellor before the entry of the decree was a substantial compliance with the rule above announced. It was filed when the decree was entered, and the chancellor should have stricken it from the files if he did not intend to allow it to be filed as depositions in the case. In short, by allowing it to be taken down in writing, and filed before the decree was rendered, the chancellor made it a part of the record. ■ ■ ■