author: McCulloch, C. J.

text:
    Myers v. Martin.
    Opinion delivered June 1, 1925.
    1. JURY — drawn jury — objection.—Where the record recites that ■at the request of both parties for a drawn jury a list of eighteen qualified jurors from the regular panel was prepared in the ordinary manner, and furnished to each of the parties, from which list each party struck three names, and the twelve jurors remaining were impaneled, defendant cannot complain, in the absence of a specific showing, that the names were not drawn from the box.
    2. Evidence — proof of other transactions. — Though generally testimony must be confined to the particular transaction under investigation, and evidence of other conduct, statements or transactions is inadmissible, yet where such testimony tends to show motive or design or intention, it is admissible.

      3. FRAUD — evidence.—In an action against a bank president for alleged fraudulent misrepresentations,, inducing the purchase of stock by plaintiff, testimony that he made misrepresentations to other prospective purchasers held competent as tending to ■ show motive and a general scheme to induce people to buy stock in. the bank. •
    4. Fraud — misrepresentations.—lit .is not essential to the liability of a bank president for misrepresentations to plaintiff in regard to the value of bank stock that defendant should have been directly interested in ibhe sale of such stock, as indirect misrepresentations, in the absence of contractual relations with the person to whom the representations are made, create liability.
    5. Fraud — liability for misrepresentations. — Where a bank president, making fraudulent representations in regard to the value of stock to a prospective purchaser, had peculiar knowledge as to the conditions of the hank, the purchaser had a right, to rely cm such representations; and where he did rely thereon, and they were fraudulent, the president is liable, though the purchaser made no further inquiry.
    ,6. Appeal and error — weight of evidence. — The weight of evidence is a matter within the province of the jury and the trial court.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed.

      S. W. Woods, E. G. Mitchell, Karl Greenhaw and Marvin Haihcoat, for appellant.

      Shouse & Roiuland, for appellee.
   McCulloch, C. J.

Appellee instituted this action against appellant to recover damages alleged to have been sustained in the purchase of certain bank stock by fraudulent misrepresentations made to Mm by appellant in regard to the value of the stock. Appellant denied all the allegations of fraud and deceit, and on the trial of the issue the verdict was in favor of appellee.

The controversy relates to the sale and purchase of capital stock of the Farmers’ Bank of Harrison, Arkansas. Appellee purchased stock in the hank of the par value of $1,100 — the purchase of $1,000 of the stock being made by appellee from John Ross, a stockholder, and another purchase of $100 from Ival Presley, and appellee claims that appellant made false and fraudulent misrepresentations to him concerning the value of the stock in order to induce him to purchase it.

It is undisputed that the bank was in a crippled condition, and that appellant, at the request of a State Bank Examiner, and certain other bankers in Harrison, was induced to buy stock in the bank, and become its president, in order to rescue the affairs of the bank from disaster. Appellant purchased $1,000 stock and was made president of the bank and operated the bank for a time. To meet the requirements of the State Bank Commissioner, appellant, as president, and the other members of the board of directors issued a call upon all stockholders for payment of thirty per cent, of their stock. Many of the stockholders complained at this call, and some of them refused to respond. At this time appellee purchased the stock of Ross and Presley, and responded to the call by paying into the bank thirty per cent, of the face value of the stock. He claims that before making the purchase he consulted appellant about the purchase, and that the latter assured him that the payment oka thirty per cent, assessment by stockholders would take care of all the bad paper and put the bank in as good shape as any bank in town. Appellee testified that he relied on this statement, and purchased the stock and paid the assessment on the faith of it, the aggregate sum paid being $880, and that he lost it all by the bank’s subsequent failure. It is undisputed that the bank went out of existence a few months later, the assets being barely sufficient to pay the depositors.

Appellant denied that he made any misrepresentations to appellee or to any one else concerning the financial condition of the bank. He testified that, after appellee purchased stock in the bank, he merely remarked to ap-pellee that he was glad to have him identified with the bank, and that this was all that ever occurred between him and appellee with reference to the latter being a stockholder. Appellant testified that he had no interest in the bank except the investment of $1,000 in stock, and that he was induced to make this investment and take charge of the bank at the request of a 'bank examiner and some of the other bankers in town, in an effort to improve the financial condition of the bank.

Appellee was allowed, over appellant’s objection, to prove by other witnesses that appellant made misrepresentations to other prospective purchasers of stock concerning the financial condition and solvency of the bank.

It is first contended that the court erred in refusing appellant’s request for a drawn jury, in pursuance of the statute. Crawford & Moses’ Digest, § 6383 et seq. The request of appellant was in writing, and is shown in the record to be a request for “a full dravm jury, twenty four in the box, eighteen to be drawn, and the first twelve to serve as a jury in this case. ” It will be observed that the request is not strictly in accordance with the statute, for the request is that the first twelve on the list is to serve on the jury, whereas the. statute provides that after eighteen qualified jurors are drawn, a copy of the list shall be furnished to each party, “from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and first twelve names remaining on said original list shall constitute the jury.” Crawford & Moses’ Digest, § 6384. Tbe record recites that the court overruled the request of appellant, but that “at the request of both parties hereto for a drawn jury, a list of eighteen qualified jurors from the regular panel was prepared in the ordinary manner and furnished to each of the parties hereto-, from which list so prepared each party struck three names, and the twelve jurors remaining on said list after the narties hereto had struck three names each, were empaneled and accepted by the parties as a jury to try said cause.” The record does not recite in so many words that the eighteen names were drawn from the box. The recital is that the eighteen names “were prepared in the ordinary manner,” and the inference is that they were drawn in accordance with the requirements of the statute. ¡We think that appellant is not in an attitude to complain without having made some specific showing' that the names were not in fact drawn from the box.

Tlie next assignment of error relates to the ruling of tlie court in admitting the testimony of witnesses as to alleged misrepresentations made by appellant concerning other sa-les of stock. Tlie general rule is that testimony must be confined to the particular transaction under investigation, and that evidence of other conduct, statements or transactions is inadmissible. There are, however, exceptions to this rule, and they have been recognized in decisions of this court, both civil and criminal. White v. Beal & Fletcher Grocer Co. 65 Ark. 278; Woodward v. State, 84 Ark. 119; Ross v. State, 92 Ark. 481; National Novelty Imp. Co. v. Ellis, 143 Ark. 413. Those exceptions relate to proof of motive and design or intention. Decisions of other courts cited in brief of counsel are to the same effect. The testimony was competent, we think, as tending to show that appellant was generally boosting* the stock of the bank so as to enhance its value, and restore confidence in the bank. It tended to show a motive and a general scheme to induce people to invest in the stock of the bank.

It is not essential to liability that appellant should have been directly interested in the sale of the stock. On the contrary, the authorities are that an indirect misrepresentation or misrepresentations in the absence of contractual relations with the person to whom the misrepresentations are made, create liability. 12 R. C. L. 402; Hindman v. First National Bank, 112 Fed. 931; 57 L. R. A. 108; note to Henry v. Dennis, 85 Am. St. Rep. 365.

Finally, it is insisted that the evidence is not sufficient to support the verdict, but we find that there was a substantial conflict in the testimony, and that the evidence was legally sufficient to support a verdict either way. It is contended that, according to the undisputed evidence, appellee did not use due diligence to ascertain the true condition of the bank, and was not misled by the alleged false misrepresentations. According to the evidence adduced, appellee could have relied, and did rely, oil tlie misrepresentations of appellant; and if there were fraudulent misrepresentations which were relied on by appellee, appellant is liable for damages sustained, notwithstanding the failure of appellee to make further inquiry. Appellant was in position that he had peculiar knowledge of the condition of the bank, and appellee had the right to rely on the representations; therefore appellant cannot he heard to say that appellee should have made further investigation to ascertain the truth, instead of relying upon his statements. Hunt v. Davis, 98 Ark. 44. We are not dealing with the weight of the evidence, hut merely with its legal sufficiency. The weight of the evidence was a matter within the province of the jury and the trial court.

Affirmed.


source: Caselaw Access Project

author: Wood, J. Wool, J. McCulloch, C. J.,

license: Public Domain

text:
    Foster v. Graves.
    Opinion delivered June 1, 1925.
    1. Statutes — extraordinary session op legislature — ^-supplemental proclamation. — Where the Governor, under Const., art. 6, § 19, has issued a proclamation calling for an extraordinary-session of the Legislature to convene, he could before the convening of such session, enlarge his original proclamation by a supplemental proclamation, specifying additional subjects for legislation.
    2. Appeal and error — appointment op stenographer — validity.— Though a special1 statute providing for the appointment of a stenographer to transcribe the testimony in chancery cases did not go into effect until after the trial of a cause, if it was in . effect when the record of the testimony wias made up by the stenographer and filed thereunder, the evidence was properly preserved.
    3. Statutes — remedial acts — application to pending proceedings. —'Statutes in regard to remedies in procedure may he construed to apply to pending proceedings, and will be so applied, unless the language of the statute indicates a contrary intention.
    4. Acknowledgment — forgery—burden op proof. — Where a deed on record purports to have been acknowledged before a notary public, the burden of proving by a preponderance of the evidence that signatures to the deed and the acknowledgment were forged is upon the party attacking the deed.

      5. Mines and minerals — forgery of deed — evidence.—In a suit to cancel oil and gas royalty deeds for forgery, a finding that the deeds were forged held against the weig'bt of the evidence.
    6. Appeal and error — consideration of affidavits. — While the Supreme Court in a chancery case can not on rehearing, consider affidavits filled before it for the purpose of testing the correctness of its decision, or the decision of the trial court, it may consider such affidavits for the purpose of determining whether or not a new trial should be permitted.
    7. Appeal and error — discretion to reopen chancery case. — It is within the discretion of the Supreme ■ Court whether, on reversal of a chancery case, the ease should ibe reopened for a new trial.
    Appeal from Union Chancery Court, Second Division; W. T. S'aye, Special Chancellor ;
    reversed.

      Marsh & Marlin, Pat McNalley and Saxon & Davidson, for appellants.

      George M. Lecroy, appellant, pro se.

      Powell, Smead & Knox, for appellees.
   Wood, J.

Appellee, Buchanan Graves, is the owner of a tract of land in Union County, containing eighty acres, and he and his wife, Jennie, gave an oil and gas lease on forty acres, reserving a royalty of one-eighth of the production of oil or other minerals. This action was instituted by appellees Buchanan Graves and his wife, Jennie, against appellant Foster and his grantees to cancel and set aside two deeds purporting to have been executed by appellees to Foster, conveying one-half of the royalty theretofore reserved by appellees in the aforementioned lease executed by them.

One of the deeds sought to be canceled was dated May 10, 1923, and was filed for record on May 23, 1923, and the other deed was dated May 29, 1923, and filed for record on the same date. The two deeds covered the same property, and the last one was executed, as claimed, to cure a slight defect in the form of the first deed. Foster conveyed certain portions of the royalty to appellees Ratcliff, Wilson, Hawkins, LeCroy and Ellison, all of whom were joined as defendants in this action.

It is alleged in the complaint that the deeds were both forgeries — that neither of the appellees executed tlie deeds or appeared before any officer to acknowledge the same. The answer contained appropriate denials of the allegations of the complaint, and the canse was heard by the court on oral and documentary evidence. .The trial resulted in a decree in favor of appellees canceling the deeds as forgeries. The appeal calls merely for a review of the facts to determine whether or not the findings of the chancery court were against the preponderance of the evidence, but counsel for appellees raise the question in the outset that the testimony of witnesses adduced ore tenus is not preserved in the record so as to properly bring it before us for review, and that we must therefore indulge the presumption that the decree appealed from was supported by the evidence.

It is conceded that the General Practice Statute in regard to preserving oral testimony in chancery cases (Crawford & Moses’ Digest, § 1269) was not complied with, in that there was no order of the court entered designating a stenographer to take down the testimony and transcribe and file the same. Harmon v. Harmon, 152 Ark. 129; McGraw v. Berry, 152 Ark. 453; Sercer v. Hamilton, 155 Ark. 639; Smith v. House, 163 Ark. 423.

The General Assembly at the extraordinary session which convened September 24, 1923, enacted a statute regulating the practice in the Seventh Chancery District and providing for the appointment of a stenographer with authority to take down, transcribe and file the testimony in chancery cases. This statute was approved by the Governor on October 13, 1923. The decree appealed from in this ease was rendered on November 15, 1923, and the evidence was transcribed by the court stenographer appointed in accordance with the terms of this statute and was filed with the clerk of the chancery court on January 15,1924. The terms of this statute were complied with, but it is contended by counsel for appellees that the statute is invalid for the reason thát it was not within the specification of the Governor’s original proclamation convening; the Legislature in extraordinary session, and that, though {unbraced within the specifications of a supplemental proclamation issued by the Governor prior to the convening of the Legislature, the Governor had no authority to supplement his original. proclamation by additional specifications of subjects to be dealt -with by the Legislature. It is also contended that the emergency clause was not voted by two-thirds of the members of each house on separate 'roll call, as provided in Amendment No. 13 to the Constitution, recently declared adopted in the case of Brickhouse v. Hill, 167 Ark. 513, and that the statute had no application for the reason that it did not go into effect until January 10, 1924, which was ninety days after the adjournment of the special session, and has no controlling effect in making the record in this case.

It is conceded that the subject-matter of this statute was not embraced within the original proclamation issued by the Governor on September 8,. 1923, calling the extraordinary session of the Legislature to convene on September 24, 1923, but that on September 17, the Governor issued a supplemental proclamation specifying additional subjects for legislation, and that one of those subjects embraced the statute now under consideration.

In the case of Sims v. Weldon, 165 Ark. 15, we decided that the Governor was. without power, after the commencement of an extraordinary session of the Legislature, to specify additional subjects of legislation so as to enlarge the scope of the original proclamation, and the question now presented is whether or not the Governor has the. power, before the convening of an extraordinary session, to enlarge his' original proclamation calling the session'by specifying additional subjects of legislation. In the case of Sims v. Weldon, we expressly pretermitted the question now before us-by saying: “The question whether the Governor may, before the meeting of the session, amend his c&ll, is not presented in the present controversy, and we expressly refrain from passing upon- that question, but we do hold that, after the session has begun, pursuant to the call of the executive, the power of the executive over that particular session has been exhausted.”

Article 6, § 19' of the Constitution provides: “The Governor may, by proclamation, on extraordinary occasions, convene the General Assembly at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous from an enemy or contagious disease; and he shall specify in the proclamation the purpose for which they are convened, and no other ,business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain'in session not exceeding fifteen days.”

Article 4 §12, of the Constitution of Pennsylvania provides: “He (the Governor) may, on extraordinary occasions, convene the General Assembly, etc.” Article 3, § 25 of the Constitution of Pennsylvania provides: “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of .the Governor calling such session.” ' These provisions of the Pennsylvania Constitution, on the question now under consideration, are similar in substance and legal effect to article 6, § 19 of our own Constitution, supra.

In Pittsburg’s Petition, 217 Pa. 227, one of the objections to the constitutionality of the act under review in that ease, was “that it is not legislation upon a subject designated in the proclamation of the Governor calling the special session.” Among other things, the court said: “Whether the General Assembly ought to be called together in extraordinary session is always a matter foi; the executive alone. How it shall be called, and what notice of the call is to be given, are also for him alone. The Constitution is silent as to these matters, and wisely so, for emergencies may arise, such as riots, insurrections, widespread epidemics, or general calamities of any kind, requiring the instant convening of the Legislature, and, in the power given to the Governor to cali it, no time for the notice is too short, if it can reach the members of the General Assembly; and with telephones and telegraphs the uttermost portions of the commonwealth can at any time be reached between the rising and the setting of the sun. * * * But no form of proclamation is to be followed, and if, after one has been issued, it occurs to the executive that other subjects than those designated in it should be passed upon by the Legislature, he can unquestionably issue another, fixing the same time for the meeting of the General Assembly as was fixed in the first, and designate other subjects for its consideration. This is, perhaps, what ought to be done when other subjects than those designated in the proclamation are to be brought to the attention of the Legislature in special session, and, if it had been done in the present case, the objection of the appellants now under consideration would hardly have been raised. This, however, is not for the judiciary, but for the Governor alone. The proclamation of January 9 is in effect a second proclamation. In it the Governor adopts his original call for the purpose of fixing the time of the meeting of the General Assembly, and then proceeds to designate the additional subjects of legislation. With every presumption in favor of compliance by the executive with the constitutional requirements relating to his calling the General Assembly together in extraordinary session, it would be judicial hypercriticism to declare his second notice or proclamation insufficient to authorize the Legislature to pass the act under consideration.”

We adopt the reasoning and conclusion of the above case in the construction of article 6, § 19 of our Constitution, supra. It follows that the power of the executive over the forth of his proclamation and the subjects to be embraced therein, continues and is plenary until the Legislature has actually convened pursuant to the call contained in the proclamation. See People ex rel. Tenant v. Parker, 3 Neb. 409. The supplemental proclamation of September 17, which included the act under review for consideration by the Legislature, expressly recites in its title that it is “A proclamation supplemental and in addition to the proclamation calling an extraordinary session of the General Assembly dated September 8, 1923,” and in the body of the proclamation it is expressly recited that “the Governor did, on the 8th day of September, 1923, call an extraordinary session of the General Assembly to convene at the capítol building at the seat of government at the hour of 12:00 o’clock, m., on the 24th day of September, 1923,” * * * and that, in addition to the purposes therein enumerated, others were added, including the act under review. The subjects for legislative consideration mentioned in the supplemental proclamation must be taken and considered as much a part of the original proclamation as if they had been expressly enumerated therein. We therefore conclude that the statute was properly enacted.

Since we hold that the statute under consideration was properly enacted, being within the supplemental call of the Governor, we reach the further question whether the statute applies to the making up of the record in the present case. The statute, as we have already seen, did not go into effect until January 10, 1924, by reason of the fact that there was no separate roll call as provided in amendment No. 13 to the Constitution. This omission did not render the act invalid, but merely affected the validity of the emergency clause and rendered it inoperative. Notwithstanding the fact that the statute did not go into effect until after the trial of this cause in the chancery court, it was indisputably in effect when the record of the testimony was made up by the stenographer on January 15, 1924, and filed with the clerk. The statute related merely to procedure, and was applicable to procedure pursued after it went into effect, even though the cause was pending and the decree was rendered prior to that time. The rule established by this court is that statutes in regard to remedies in procedure may be construed to apply to pending proceedings, and will be so applied unless the language of the statute indicates a contrary intention. Green v. Abraham, 43 Ark. 420; Sidway v. Lawson, 58 Ark. 117; Van Hook v. McNeil Monument Co., 107 Ark. 292. At the time the statute went into effect the proceedings in the trial court had come to an end, but this statute related to procedure on appeal and applied thereafter to the method of procedure in perfecting the appeal. No vested rights are disturbed by giving this effect to the statute, for, as we have already said, the statute only related to the remedy and not to any substantive right.

Our conclusion therefore is that the oral testimony has been properly preserved in the record, and we proceed to a review of the evidence for the purpose of determining whether or not the decree of the. chancery court was correct — whether or not it was against the preponderance of the.evidence.

The tract of land in controversy is situated in the oil district of Union County, a few miles from the town of Norphlet. Appellee and his wife resided on the lands in controversy until after the commencement of this action on June 14, 1923. Appellant Foster contends that the first deed was executed on the day of its date, May 10, 1923, in the town of Norphlet; that the deed was acknowledged by appellees, Buchanan Graves and wife, before R. E. Black, a notary public living in Camden, who happened to be at Norphlet on that day, and that Foster paid Graves, as consideration for the conveyance, the sum of $2,000 in currency — twenty bills, each of the denomination of $100. Foster testified further that he left town soon after the execution of the deed and went to Shreveport, Louisiana, without having recorded the deed, and that later, when he made a sale to another person of a portion of the royalty, it was discovered by the attorney examining the title that there was a slight defect in the deed from Graves, and that he thereupon caused a new deed to be prepared by an attorney at Camden, and that the last deed was executed by appellees and acknowledged before the same notary, B. E. Black, at the home of appellees on the land in controversy.

Appellees both testified in the case, and each denied that they had execnted either of the deeds or that they were acquainted with Foster. They denied that Foster and Black, ór either of them, came to their home at any time to obtain the execution of a deed. In fact, they denied that they had ever had any transaction at all with Foster. This was all the testimony introduced by appellees except the testimony of one of their attorneys in contradiction of a statement made in the testimony of Black, the notary public who took the acknowledgments to the deeds.

Foster testified that he began negotiations with Grraves for the purchase of the royalty in the latter part of March, 19:23, and that, two or three days before the execution of the deed, he and Graves reached an agreement for the sale and purchase of one-half of the royalty for $2,000, and that Graves told him that he would bring' his wife to Norphlet on the day named, for the purpose of executing the deed. He testified that he was1 at that time dealing in oil leases, and had had a notary named Wells to take acknowledgments for him, and that, after he met Graves and wife in Norphlet on the morning in question for the purpose of consummating the sale by the execution of the deed, he could not locate Wells, and that he got Black, a notary public from Camden, to take the acknowledgments, and that he paid Graves the consideration in cash in one hundred-dollar bills. He testified that, after failing to find Wells, he saw Black enter a restaurant, that he went into the restaurant and got Black and brought him out, and that the deed was acknowledged on the street, near a certain grocery store. He testified that before closing the deal with Graves he did not get an abstract of title, but called to see an abstract company and was shown a memorandum to the effect that Graves was the patentee of the land from the United States Government, and had not conveyed it away, which satisfied him without obtaining a certified abstract. He testified that, after being told later that there was a defect in the deed, which was unacceptable to the purchaser with whom he had negotiated a sale of some of the royalty, he then procured a new deed, prepared by an attorney, and made an engagement with Black to go back and see Graves and get the new deed signed, which was done by Graves and his wife at their home, on May 29, 1923.

Black’s testimony coincided with that of Foster. He testified that he had no interest in the litigation, but was merely called on to take the acknowledgments while he chanced to be in Norphlet on business, and that later, when it became necessary to get a new deed signed for the correction of errors in the old one, he went with Foster, at the latter’s request, to the home of the Graves and there took their acknowledgment to the new deed. He testified that he was not very well acquainted with Graves at the time of the execution of the deed but had met him and talked with him a few weeks before this transaction, and that he had never met Graves’ wife, Jennie, before that day and was not acquainted with her. He pointed out both Graves and his wife during the trial of the case in the court room as being the two persons who acknowledged the deed. Graves and wife were both illiterate negroes and signed by mark.

Foster and Black both testified that the second deed was executed during-the forenoon of the day mentioned, and that it occurred on the front porch of the home of appellees. They both testified that a man by the name of Gamble was present when the first deed was executed, but that Gamble had been accidentally killed in Louisiana since that time; that a man by the name of Sexton was present when the second deed was executed at the home of appellees, but that Sexton was absent from the trial and then lived somewhere in Florida, his exact whereabouts being unknown to them. Foster testified that on the morning he secured the first deed from appellees he paid a man named Garter Bell for a lot he had purchased from the latter, and still had $600 in money left. Bell testified that, on the morning in question, Foster paid liim twelve dollars, balance due on a lot, and that he saw that Foster had a large roll of one-hundred-dollar hills, apparently as much as $2,500. He testified further that at the time this occurred Foster asked him if he had seen Buchanan Graves in town, and he told Foster that he had seen him there that morning. Neither Foster nor Bell claimed that the latter was present when , the deed was executed.

Foster was subjected to a very rigid cross-examination as to where he got the money he used in paying for the alleged conveyance, and why he had not given checks on the bank instead of using currency. He undertook to give an account of the source of his accumulations, and there are some discrepancies or inconsistencies in his testimony.

It appears from the testimony of witness Black and other witnesses that about the time this suit was commenced Black was arrested for the alleged forgery and put in jail for a time before giving bond. He was asked whether or not he had, in conversation with Mr. Smead, one of the attorneys for appellees, while witness was confined in jail, stated that he did not know Buchanan Graves or his wife. Black’s answer was that he had said to Mr. Smdad that he saw them once before, and that he did not tell Mr. Smead that he did not know them. His testimony was, as before stated, that he had met and talked to Graves once before, but had never seen his wife before, and was not acquainted with her.

H. F. F'locker testified that on or about May 29, 1923, he was at work as a contractor in the construction of a pipe line near the home of Buchanan Graves, and that he saw B..E. Black standing close to the gate talking to another man, and that Foster, with whom he was also acquainted, was standing there with a paper in his hand, and that both Graves and his wife were present. He testified that he was not interested in this controversy and knew nothing about the facts except the mere circumstance of seeing Foster and Black at the home of appel-lees on that morning, that all he knew about it was that he happened to he digging a pit about one hundred yards of Graves’ house that morning and saw the parties there in the yard, as above stated.

Tom Cargile testified that he was acquainted with appellant Foster and also with E. E. Black and appellee, Buchanan Graves, and that he saw Black and Foster at the home of Graves in the latter part of May, about May 30, and noticed that Black had a paper in his hand and was doing some writing. He testified that he and his brother were out there looking for work.

Sam S. Cargile testified to the same effect as his brother Tom. They both stated that this occurred about 9:30 or 10 o ’clock in the morning, and that as they passed they hollered “hello” to Black and saw that he had some papers and was doing some writing. It is to be borne in mind at this point that Graves and his wife both testified that they were not acquainted with either Foster or Black and that neither of those parties were at their house on any occasion.

Clyde Carter testified that he was in Norphlet on May 10, 1923, and while standing in front of a certain cafe or restaurant he saw a man, whom he recognized at the time the testimony was given as appellant, go into the restaurant and speak to E. E. Black and request him to do some notary work, and that appellant and Black left the restaurant together.

The law of this case has been fully settled by a recent decision of this court. Miles v. Jerry, 158 Ark. 314. The purported deeds having been duly recorded, the burden of proof is upon the party challenging their authenticity to prove his case by a preponderance of the evidence. The burden therefore rested on appellees to show by a preponderance of the evidence that the deeds were forged. The only affirmative testimony offered by appellees is that of their own. They are not corroborated by any other witness, while, on the other1 hand, Foster, who is interested to the ■ same extent as each of the appellees, is corroborated in every detail by Black, who is disinterested except to the extent of his interest in the assault that is made upon his own integrity in participating in the alleged forgery; and by witnesses Flocker, Tom Cargile and Sam Cargile, who are apparently disinterested, and who each testified that they saw Foster and Black at the home of the Graves talking to them and apparently carrying on a transaction which called for the execution of papers. This is in positive contradiction of the testimony of. both of the appellees. If the testimony of these witnesses is true, then the. testimony of both of the appellees is false. It is true that there are some inconsistencies in the details of Foster’s testimony, especially with reference to the manner of his accumulation of the money and in paying for the conveyance. It may be said also that there are inconsistencies in' the testimony of both of thé appellees. It is likewise true that witness Black is, to some extent, contradicted by the testimony of Mr. Smead, one of the attorneys for appellees. But it must be remembered that this contradiction related to a conversation while Black was in jail, and the contradiction was so slight that it may be attributed to some misunderstanding as to just what particular words were used. Mr. Smead testified that he went to see Black while the latter was in jail, being then the attorney for appel-lees, and ¡Black told him that he did not know “Buck” Graves and had not seen him to know him in his life, but that he had taken the acknowledgment of somebody. Black testified that he was not acquainted with Jennie Graves at all and had never seen her before the day the deed was executed, but he identified her when he saw her in the court room at the trial as being the woman who had executed the deed as the wife of Buchanan Graves. He testified that he was only slightly acquainted with Buchanan Graves, and that he talked to him once before the .execution of the deed. Under these circumstances it can easily be seen that Mr. Smead may have misunderstood what Black said with reference to his acquaintance with the two persons, Graves and wife.

Making due allowances f of the inconsistencies in all the testimony, we are of the opinion that the testimony adduced by appellees does not preponderate, and that the finding that the deeds were forgeries was clearly against the preponderance of the evidence. In order to sustain that finding, we must, absolutely disregard the material testimony of witnesses not shown in the slightest degree to be interested in this litigation.

The decree of the chancery court was therefore erroneous, and the same is reversed, and the cause is remanded with directions to enter a decree dismissing the complaint for want of equity.

McCulloch, C. J., dissents.

Opinion on rehearing.

Wool, J.

We are asked to reconsider the conclusions reached on the questions involved, both of fact and of law, and, having done so, we adhere to the conclusions expressed in the former opinion. Appellees have filed here since our decision was rendered the affidavit of B. E. Black, one of the material witnesses, repudiating his testimony given at the trial below, and they ask that the judgment of the court be modified so as to allow a retrial of the issues on remand of the cause, instead of directing the entry of a decree. Counter affidavits have been filed by both parties bearing on the question whether the witness did in fact voluntarily repudiate his testmony, or whether he was, as he since claims, coerced or imposed upon. We cannot consider any of those affidavits for the purpose of testing the correctness of our decision or the correctness of the decision of the chancery court, as the record miade in the court below must furnish the sole test. We can, however, consider those affidavits for the purpose of determining whether or not a retrial of the issues should be permitted.

The usual practice on appeals in chancery cases is to end the controversy here by final judgment, or by direction to the lower court to enter a final decree, but there are exceptions, and it rests in the discretion of this ■court to determine, under the circumstances, whether, upon a reversal of a chancery cause, the same should be opened for a new trial. Carmack v. Lovett, 44 Ark. 180; Long v. Chas. T. Abeles & Co., 77 Ark. 156; Gaither v. Gage, 82 Ark. 51; Carlisle v. Carrigan, 83 Ark. 136. Here tlie circumstances are peculiar and unusual.

The fact that there is evidence of a repudiation by such a material witness as Black of 'his former testimony presents a situation which makes it appropriate to permit the facts to be re-examined in the trial court. We are not at liberty to determine here whether or not the witness has in fact voluntarily repudiated his former testimony, but we consider it only for the purpose of determining Whether or not we should vary the usual practice, by sending the case back for a retrial after having reached the conclusion on the record before us, which was made in the lower court, that the evidence is insufficient to warrant the decree of the chancery court.

The former judgment of this court -will therefore be amended so that on remand of the cause to the chancery court for further proceedings the cause will be reopened and the parties on each side miay be permitted to introduce further testimony bearing upon all the issues. The eauise will be retried 'by the chancery court. The petition of appellee for a rehearing is in all other respects denied.

McCulloch, C. J.,

(dissenting). My only difference with the majority of the court relates to that part of the opinion which holds that the G-ovemor has the power, after he has called an extraordinary session of the General Assembly, to enlarge the subjects to be considered. In my judgment the executive has no such power. It is true that in the case of Sims v. Weldon, 165 Ark. 13, holding that the Governor had no right to enlarge the subjects by supplement after the Legislature convenes, we pre-termitted the question whether or not he could do so before the extraordinary session begins. But it seems to me that it necessarily follows from that decision that if the Governor has no power to issue a supplemental call or to enlarge the subjects of legislation after the session- begins, he has no power to do so before them. There is no distinction whatever that I can observe. If his power is not exhausted by the first call, there is no reason why he does not under the Constitution possess the power to continue to enlarge the subjects after the session begins.

The executive authority to call a special session of the Legislature is an extraordinary power, and the Constitution itself specifies in detail how that power shall, be exercised and what authority shall result therefrom to the General Assembly itself. The Constitution (Art. 6, § 19) specifies a single act for the Governor to perform, and that is that he may “by proclamation on extraordinary occasions convene the General Assembly,” and “shall specify in his proclamation the purpose for which they are convened.” Certainly there is no express authority to do anything more than that, and it seems to me that, as the Constitution proceeds at that point to a detailed statement of the powers of the Legislature, it excludes any additional power on the part of the executive. In other words, the Constitution authorizes him to issue one proclamation calling that particular session of the Legislature, and he shall specify in that -single proclamation the subjects of legislation which are to be considered. It is true that there are no limitations upon the number of special sessions that he may call, but there is a clearly implied limitation upon his acts with respect to any one particular session. I think that the executive’s power is exhausted when he issues a proclamation calling a session and specifying the subjects of legislation. By that act he creates the authority for the convening of the Legislature and limits the subject of legislation, and then his power ceases. He has no authority to revoke the call, for the exercise of it has gone beyond his control. Neither: has he any authority to enlarge the scope of the legislation, for the Constitution in express terms leaves it to the General Assembly itself to determine when and under what circumstances other matters may be considered.

The purpose of calling a. special session of the General Assembly is to meet unf orseen emergencies of great import. The Constitution says that such session may he called “on extraordinary occasions,” meaning of course, in great emergencies. The thought that was in the minds of the framers of the Constitution was that when those emergencies arose the Governor would know and would he prepared to state the subjects, which were thought to be sufficient to meet the extraordinary situation then impending. It is true that the chief executive himself is the sole judge of the necessity for the call or the subjects upon which there is to be emergency legislation, but in conceding to him authority to amend his call and to add other subjects ‘of legislation we must assume that he has found that a new emergency has arisen which is sufficient to call into exercise his extraordinary powers. I think that if the framers of the Constitution had intended to confer any such continuing power upon the executive, they would have said so in plain language.


author: Wood, J. McCulloch, C. J.

text:
    Sherwin-Williams Company v. Leslie.
    Opinion delivered June 1, 1925.
    1. Reformation of instruments — mutual mistake. — Where the uneontroverted proof showed that it was the. intention- of the parties to a deed .that certain lands should have been included, and that it was omitted through the oversight of the scrivener who prepared the deed, as between such parties the deed will he reformed.
    2. Reformation of instruments — mutual mistake — subsequent mortgagee with knowledge. — Where a mortgage by mistake of the scrivener omitted a tract of land, and a subsequent mortgage of the omitted land contained a clause that it was subject to a first mortgage to the named mortgagee in a stated sum, the subsequent mortgagee was bound by such recital, and the first mortgagee was entitled to reformation of his mortgage so as to include the omitted land as against the second mortgagee.

      Appeal from Howtard Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      Sleator <£ Slattery and W. C. Rodgers, for appellant.

      A. F. Auer, for appellee.
   Wood, J.

On the 23rd of September, 1920, J. S. Norman and wife executed a deed of trust in favor of Mrs. Kate A. Fowler to secure her in the sum of $5,000. Sam E. Leslie was named as trustee in the deed. The deed embraced the following lands:

SEW of SEW section 25, and Wy2 of NEW of NEW, section 36, township 9 south, range 27 west, except one acre in the northwest corner, in Howard County, Arkansas; and the N% of SEW of section 19, township 9 south, range 26 west in Hempstead County, Arkansas.

On the 26th of December, 1922, the Ozark Nursery & Seed Breeding Farms, a corporation, through its president, J. S. Norman, and M. C. Foster, its secretary, executed a deed of trust to the Sherwin-Williams company, hereafter called company to secure a promissory note in the sum of $2,203.94, which was due April 1, 1923. The deed of trust to the company contained the following land:

“SEW of SEW land the NEW of SEW, section 25, and the WW of NEW of NEW of section 36, all in township 9 south, range 27 west, Howard County, Arkansas, except one acre in the northwest corner of last-named tract. ’ ’

The deed of trust to the company was duly recorded on December 28,1922. It contained the following clause: “This deed of trust is subject to a first mortgage to Mrs. Kate C. Fowler in the sum of $6,000.”

This action was begun by Sam E. Leslie, trustee, in the chancery court of Howard County against Norman and wife, and one J. S. Butt and the company to foreclose the deed of trust in favor of Mrs. Kate C. Fowler. Leslie alleged that in addition to the land actually conveyed and described in the deed of trust to Mrs. Fowler, it was intended to include the following land situated in Howard County: The NEW of SEW of section 25, township 9 south, range 27 west. He further alleged that the company claimed an interest in the land above described by virtue of the deed of trust executed to it. Leslie prayed that the deed of trust to him in favor of Mrs. Fowler be reformed, so as to include the lands last above described and that the trust deed as thus reformed be foreclosed.

The company, in its answer, denied that the mortgage to Mrs. Fowler was prior in date to its mortgage, and alleged, by way of cross-complaint, that its mortgage on the NE]4 of SE]4 of section 25, township 9 south, range 27 west, was senior and paramount to Mrs. Fowler’s mortgage, and the company prayed that its lien on this triaet be declared superior to that of Mrs. Fowler, and that its mortgage be foreclosed on said land.

. The undisputed proof was to the effect that the grantors in Mrs. Fowler’s mortgage intended to include the tract of land in Howard County in controversy, and that the grantors were living on that tract when the mortgage in favor of Mrs. Fowler was executed, and by oversight the scrivener omitted that tract. It was agreed by the parties that the company had no knowledge or notice of an intention on the part of the grantors in the mortgage to Mrs. Fowler to include therein the NE]4 of SE]4 of section 25, township 9 south, range 27 west, in Howard County, Arkansas, unless the clause, “this deed of trust is subject to a first mortgage to Mrs. Fowler in the sum of $6,000,” constituted such notice. It was agreed that, if Mrs. Fowler’s mortgage should be construed to include the lands last above mentioned, then judgment should be rendered and foreclosure had of the mortgage on the lands mentioned in her favor; otherwise, the judgment and foreclosure on the tract mentioned should be in favor of the company.

The trial court, upon the facts as above set forth, found that the mortgage to Mrs. Fowler included the tract of land in controversy as above described, and that her mortgage should be reformed so as to include such tract. The court rendered a decree in her favor, foreclosing tlie mortgage oil such, tract, and from that decree the company prosecutes this appeal.

As between Mrs. Fowler, the beneficiary, and the grantors in the deed of trust from Norman and wife to Leslie, the trustee, Mrs. Fowler was entitled to a ref ormation of the deed of trust so as to include the lands in controversy, under the uncontroverted proof that it was the mutual intention of all parties to that deed of trust that such lands should be included and that it was omitted merely through oversight of the scrivener who prepared the deed of trust. Craig v. Pendleton, 89 Ark. 259. Therefore, the deed of trust from Norman and wife to Leslie, the trustee, in favor of Mrs. Fowler, executed September 23, 1920, should read as if it originally included, in addition to the lands therein described, the NE14 of SE14 of section 25, township 9 south, range 27 west, in Howard County, Arkansas, the same being the tract of land in controversy.

As between the appellant and the appellee, Mrs. Fowler, the only issue is whether or not the latter is entitled to have her deed reformed so as to give her a lien on the land in controversy, which is paramount to the lien of appellant under its deed of trust. We believe the doctrine of the above case is' also decisive of this issue, for, in that case, it is held (quoting syllabus): “Where a mortgage by mistake incorrectly describes land intended to be conveyed, the mortgagee is entitled to reformation thereof as against the mortgagor or any subsequent purchaser with notice of the mistake.” The. notice mentioned in the above excerpt means either actual or constructive notice.

Now, the uncontroverted proof, as we have seen, shows that Mrs. Fowler did have a mortgage on the land in controversy to secure an indebtedness due her from the Normans in the sum of $6,000. The appellant-expressly contracted with the grantors in its deed of trust that its mortgage was subject to the prior deed of trust to Mrs. Kate A. Fowler for the sum of $6,000. This provision was embodied by the grantors in appellant’s deed of trust. It shows that the appellant contracted with its grantors in the deed to make the appellant’s deed of trust subject to Mrs. Fowler’s deed of trust. This provision was for the benefit of Mrs. Fowler as well as for the benefit of the grantors in appellant’s deed of trust. J. S. Norman was the president of the Ozark Nursery & 'Seed. Breeding Farms, and he was also the grantor in Mrs. Fowler’s deed of trust.’ The parties to appellant’s deed of trust were contracting with reference to any first mortgage that embraced the lands in controversy which had been executed in favor of Mrs. Fowler, regardless of whether such mortgage had been placed of record or not. If the parties to appellant’s deed of trust had intended that the clause in controversy should refer only to a mortgage in favor of Mrs. Fowler that had been put of record, it would have been easy and the natural thing to do to refer to such mortgage as of record. But such is not the language of the clause mentioned. By reason of the fact that this clause expressly mentions Mrs. Kate Fowler as having a first mortgage and specifies the amount of same, the appellant must be held to these recitals, and they show that appellant had knowledge of the fact that Mrs. Fowler had a prior mortgage to the land in controversy. If the clause had stopped with the language, “this deed of trust is subject to a'first mortgage,” then appellant’s contention would be more plausible, but since it specifically named the mortgagee in the first mortgage, and specified the amount of that mortgage, and states that the mortgage, to Mrs. Fowler is a first mortgage, and that it is subject thereto, it occurs to us that this language is tantamount to saying that the mortgage to the appellant is subject to the first mortgage of Mrs. Fowler for the same property.

Such recitals bring the case at bar clearly within the doctrine announced by us in Reidmiller v. Comes, 158 Ark. 23, where we said: “This court has also held that, by accepting a mortgage which recites the first mortgage and provides for its payment, the second mortgagee, whose mortgage has been first filed for record, estops himself to deny the existence of the said mortgage and the validity of its lien. * * * Between conflicting mortgages, the one first filed for record will have precedence, m the absence of a recital that it is made subject to another mortgage on the same property.” True, both mortgages in the above case were 'filed for record, but the doctrine of estoppel, which was controlling in that case, was predicated upon the fact that the second mortgage contained a recital that it was subject to' a first mortgage on the same property. We are convinced that it was not in the contemplation of the parties to appellant’s mortgage that appellant should have a first mortgage, or a superior lien on the land in controversy to the mortgage of appellee, Mrs. Fowler, but just to the contrary.

The decree of the court is therefore correct, and it is affirmed.

Dissenting opinion.

McCulloch, C. J.

The writer and Mr. Justice Hast have the view that, while full recognition should be given to the doctrine that acceptance of a deed reciting the existence of a prior incumbrance constitutes notice thereof to the grantee, yet under the facts of the present case the recital in appellant’s mortgage should be treated as having reference merely to the prior recorded mortgage to appellee. Appellant had no notice that the tract of land in, controversy was intended to- be included in the mortgage to appellee, and had the right to assume that the recital referred to the prior recorded mortgage and to none other. Appellant was not, by the recital, put oh notice as to any other incumbrance.


author: Hart, J.

text:
    Babers v. State.
    Opinion delivered June 1, 1925.
    1. Seduction — coreoboeation of peosecutedc. — To sustain a conviction for seduction under a promise of marriage, the prosecuting witness must be corroborated as to the promise of marriage and the fact of sexual intercourse.
    2. Seduction — sufficiency of evidence. — In a prosecution for seduction under promise of marriage, evidence corroborating the prosecutrix held sufficient to sustain a conviction.
    3. Criminal law — instructions singling out evidence.— Requested instructions singling out certain evidence and instructing as to the weight to he given to it held properly refused; the weight of the evidence being a jury question.
    4. Criminal law — admission of accused. — In a prosecution for seduction, a statement of the accused that he was going to marry the prosecutrix held competent as an admission corroborating testimony of the prosecutrix that he had promised to marry her.
    Appeal from Sevier Circuit Court; B. E. Isbell, Jud'ge;
    affirmed.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Willie Babers was indicted and convicted before a jury of seducing Bra Zachary under a promise of marriage. The case is here on appeal.

For a reversal of the judgment it is contended that there is not sufficient corroborating evidence of the prosecuting witness. Under our statute the defendant in a seduction case shall not be convicted upon the testimony of the prosecuting witness, unless corroborated by other evidence as to the promise of marriage, and the fact of sexual intercourse. Lasater v. State, 77 Ark. 468.

According to the testimony of the prosecuting witness, the defendant kept company with her for several months. He promised to marry her, and by virtue of his promise of marriage she had sexual intercourse with him a number of times, and as the result of it a child was horn unto her.

Members of her family testified that the defendant had been waiting on her during the time stated in .her testimony. Other witnesses testified that the defendant told them that he and the prosecuting witness were going to get married. .Still another witness testified that, after the defendant was arrested, he stated to him that if he had known that the prosecuting witness was pregnant he could have gotten away before he was arrested. This evidence was sufficient to corroborate the testimony of the prosecuting witness in both the respects required by the statute.

The action of the court in instructing the jury is also assigned as error calling for a reversal of the judgment. "We have examined the instructions, and find that they fully and fairly cover the respective theories of the State and of the defendant. Moreover, this is the second appeal in the case, and these same instructions were approved on the former appeal. Babers v. State, 164 Ark. 381.

The next assignment of error is that the court erred in refusing instructions Nos. 7 and 8 requested by the defendant. We do not deem it necessary to set out these instructions. Both of them single out certain evidence and in effect instruct the jury as to the weight to be given to it. Under our 'Constitution it is for the jury and not the court to decide upon the weight to be given to the evidence. Bullard v. State, 159 Ark. 435; and Fields v. State, 154 Ark. 188.

Another assignment of error is that the court erred in allowing a witness to testify that the defendant had told him that he was going to marry the prosecuting witness. ,

As we have already seen, under our statute the prosecuting witness must be corroborated both as to the promise of marriage and the fact 'of the sexual intercourse. The admission of the defendant to the witness that he was going to marry the defendant was in the nature of an admission that he had promised to marry her, and was competent testimony to corroborate the prosecuting witness on this point.

No brief has been filed for the defendant, bnt under our rules we have considered the other assignments of error set out in his motion for a new trial. We do not find any prejudicial error in the record, and the judgment will therefore be affirmed.


text:
    Thompson v. Kinard.
    Opinion delivered June 1, 1925.
    1. Deeds — forgery—burden of proof. — The burden of proof is on one who alleges the forgery of a deed to establish it by a preponderance of the evidence.
    2. Deeds — forgery—evidence.—Evidence held to sustain a finding that a power of attorney was not forged.
    3. Principal and agent — power of attorney to execute deed.— Where one known by several names executed a power of attorney authorizing the execution of deeds to real and personal property in such manner as the principal could do, the attorney was empowered to execute a deed toy a name by which the principal was known, though it was not the name that was signed to the power of attorney.
    4. Principal and agent — ratification of agent’s act. — A party giving a power of attorney will1 he held to have ratified a deed by the attorney by receiving a cash payment and accepting the notes for the balance of the purchase money.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    Lena Thompson brought this suit in equity against J. T. Kinard, W. J. Kinard and Lula Payne to cancel and set aside a deed purporting to have been executed by J. T. Kinard, as attorney in fact for Lizzie Oliver to Lula Payne to a lot in the city of El Dorado, Union County, Arkansas.
    According to the allegations of the complaint, Lena Thompson is the mother of Lizzie Oliver, who died intestate in said county and State in January, 1922, and left surviving her her mother as her sole heir at law. The suit was defended on the ground that Lula Payne had acquired the legal title to said property.
    The deed in question purports to have been executed on the 8th day of August, 1921, and is signed ‘4 Lizzie Oliver by J. T. Kinard, attorney in fact.” The consideration recited in the deed is $275. $137 of the purchase price was paid in •cash and the balance is represented by fourteen promissory notes of $10 each, payable respectively on the 10th day of September, 1921, and each year thereafter for the fourteen years. A vendor’s lien was reserved in the deed to secure the payment of said notes. The deed was duly acknowledged 'before W. J. Kinard, a notary public, and a son of J. T. Kinard.
    The power of attorney under which the deed was executed was dated June 14, 1921, and was also duly acknowledged before W. J. Kinard, notary public. The body of the power of attorney reads as follows:
    44Know all men by these presents:
    4 4 That I, Lizzie Alderson, nee Turner, do by these presents constitute and appoint J. T. Kinard of El Dorado, my true and lawful attorney in fact, in my name, place and stead, to execute deeds, leases, receipts and all matters, chattels and goods of any kind, both real and personal, in as true and lawful manner as I myself could do if present, and I hereby ratify and confirm all acts that my attorney shall perform for me and in my name place and stead.”
    Lena Thompson was the principal witness for herself. According to her testimony she was the mother of Lizzie Allison, who is also known as Lizzie Oliver, Lizzie Turner and Lizzie Alderson.
    Lizzie Allison died intestate in Union County, Arkansas, on January 6, 1922. Lena Thompson had another daughter called Sula Henderson. She had two sons named respectively Monroe and Calvin Thompson. She helped her daughter, Lizzie Allison, buy the town lot in question. During the first part of the year 1921, Lizzie Allison lived at Dierks, Arkansas, and came back to El Dorado in Union County in November of that year. Lizzie Allison lived at Dierks during the month of June, 1921. Lizzie Allison could neither read nor white and could not sign her own name.
    Two other witnesses testified that they knew Lizzie Allison, and that she could neither read nor write. They also stated that she could not even write her own name. Monroe Thompson stated that his sister Lizzie Allison lived at Dierks, Arkansas, during the month of June, 1921, and was not in El Dorado during that month. He stated further that she could not read or write.
    W. J. Kinard was a witness for the defendants. According to his testimony he has no interest whatever in the case, and is the notary public who took the acknowledgment of Lizzie Allison to the power of attorney, and of J. T. Kinard to the deed to Lula Payne above referred to. He stated in positive terms that the signature to the power of attorney in question was the signature of Lizzie Allison.
    J. T. Kinard was also a witness for the defendants. According to his testimony Lizzie Allison could neither read nor write, but she had learned to sign her name in the latter part of her life. He wrote letters for her often, and he usually signed her name to the letters. •Lizzie Allison signed the power of attorney in question. The witness collected two of the notes and turned over the money to Lizzie Allison. He transferred and assigned the rest of the notes to Cliff Barton. He executed the deed in question to Lula Payne pursuant to the power given him by the power of attorney. He did not see Lizzie Allison sign the power of attorney; but he wrote it and gave it to Lizzie Allison to be carried to his son, W. J. Kinard, and executed before him as notary public. Pursuant to directions, Lizzie Allison took the power of attorney and left his office. In a short time she returned with the power of attorney. Her name was signed to it as grantor, and it purported to have been executed before W. J. Kinard as notary public.

      Cliff Barton was also a witness for the defendants. According to his testimony, he purchased the twelve notes above referred to from Lizzie Allison and paid her for them.
    Lnla Payne was a witness for herself. According to her testimony both the deed and power of attorney were delivered to her and she filed them for record in the clerk’s office. She admitted that she did not do this until after Lizzie Allison had died. Lula Payne paid $275 for the lot in question. She paid $137.50 cash and gave her notes for the balance of the purchase money. She also built a house on the lot, which together with other improvements, cost about $400.
    The chancellor found the issues in favor of the defendants, and it was decreed that the plaintiff’s complaint be dismissed for want of equity.
    The case is here on appeal.

      I. S. Pinkett for appellant.

      Wilson & McGough, and Jones, Ragsdale & Matheney, for appellees.
   Hart, J.

(after stating the facts). It is first contended that both the deed executed by J. T. Kinard as attorney in fact for Lizzie Oliver to Lula Payne, and the power of attorney executed by Lizzie Oliver to J. T. Kinard were forgeries.

The burden of proof rests upon the person denying that he signed a deed or acknowledged it to show by a preponderance of the evidence that his signature is a forgery. Polk v. Brown, 117 Ark. 321, and Miles v. Jerry, 158 Ark. 314.

To sustain the burden of proof in this respect, the plaintiff testified that her daughter, Lizzie Oliver, did not live in El Doardo, Arkansas, in June, 1921, and that her daughter could neither read nor write. The plaintiff and her son both testified to these facts. Two other witnesses also testified that Lizzie Oliver could neither read nor write. The power of attorney which is claimed to be a forgery purports to have been signed on the 14th day of June, 1921, and to Rave been acknowledged on tbe same day in Union County before W. J. Kinard, as notary public.

Opposed to this testimony on tbe part of the plaintiff is tbe testimony of W. J. Kinard to tbe fact that Lizzie Oliver personally appeared before him on the, day in question and signed and acknowledged tbe power of attorney. This testimony is corroborated by that of bis father, J. T. Kinard. The latter testified that be wrote tbe power of attorney and then gave it to Lizzie Oliver to be carried by her to bis son’s office and there acknowledged. He said that Lizzie Oliver left bis office with the power of attorney and in a short time came back with it signed by herself with a certificate of acknowledgment by W. J. Kinard, a notary public. The witness stated further that, while Lizzie Oliver could not read nor write, during tbe latter years of her life she bad learned to sign her own name.

Neither J. T. Kinard nor W. J. Kinard claim any interest in the lot in controversy, nor do they ever claim to have bad any interest in it. Their testimony is corroborated by the fact that pursuant to the power given, J. T. Kinard executed a deed to said lot to Lula Payne and paid that part of the purchase money received by him to Lizzie Oliver and delivered to her fourteen notes for $10 each given for tire balance of the purchase money. These notes were transferred by Lizzie Oliver to C. f>. Barton, and Barton testified that he paid value received to her for them.

Lula Payne testified that she took possession of the lot in question pursuant to her deed, and built a house on it. She lived in her house for a time with the knowledge of Lizzie Oliver and of the plaintiff. Finally she had a row with the plaintiff about hanging some things on the wire fence between their homes, and this, to her mind, caused the lawsuit.

The chancellor found the issues on the question of forgery of the name of Lizzie Oliver to the power of attorney in favor of the defendants, and it cannot be said that bis finding is against the preponderance of tbe evidence.

On tbe- question of tbe forging of tbe name of J. T. Kinard to tbe deed but little need be said. Both be and bis son before whom be acknowledged tbe deed testified that be signed tbe deed and acknowledged it before bis son. There is no evidence in tbe record to contradict tbeir testimony in this respect.

It is next contended that tbe decree should be reversed because tbe language of tbe power of attorney is not broad enough to authorize J. T. Kinard to execute the deed in question for Lizzie Oliver. Tbe power of attorney is set out in our statement of facts. It will be noted that Lizzie Alderson appoints J. T. Kinard her attorney in fact to execute deeds to both real and personal property in as lawful manner as she could do. ¥e think this language is broad enough to show that J. T. Kinard was given tbe authority to execute tbe deed in question. Tbe undisputed evidence shows that tbe daughter of the plaintiff who executed tbe power of attorney was known under various names. She was called Lizzie Oliver, Lizzie Alderson and Lizzie Turner. Moreover, she ratified tbe deed executed by J. T. Kinard for her by receiving tbe cash payment and accepting tbe notes given for tbe balance of tbe purchase money.

It follows that the decree of tbe chancery court was correct, and must be affirmed.


text:
    McDaniel v. Brandon & Baugh.
    Opinion delivered June 1, 1925.
    1. PARENT AND CHILD — DUTY TO FURNISH NECESSITIES. — A father is bound to supply his minor children wiith the necessities of life, and may be held to pay for such necessities furnished by third persons to a minor child without any control or consent, where he has failed or refused to act, ¡or in ease of some-special exigency.
    2. Parent and child — implied agreement to pay for necessities.— A father’s agreement to pay for necessities furnished to his minor child may be implied from the knowledge on his part that* the child has on former occasions bought goods for which he has paid.
    3 Appeal and error — ¡waiver of error. — Error in an instruction is waived where appellant reauested a similar instruction.
    4. Parent and child — liability FOR necessities, — Where a parent, sued for necessities alleged to have been furnished to his stepdaughter, introduced evidence tending .to establish that he had furnished her with necessities suitable to her condition in life, an instruction to the effect that he was liable for necessities furnished by another unless he notified the other not to supply her was erroneous in ignoring his defense that he had already supplied her necessities, and had not authorized her to 'buy goods on his credit.
    Appeal from St. Francis Circuit Court; E. D. Robertson. Judge;
    reversed.
    STATEMENT OE FACTS.
    Brandon & Baugh brought this suit before a justice of the peace against Henry McDaniel on an account for goods furnished by said firm and charged on its books to said McDaniel for his stepdaughter.
    The plaintiff’s recovered judgment against the defendant for the sum of $78.95, and the defendant took an appeal to the circuit court.
    According to the evidence for the plaintiffs, the account sued on was correct and consisted of wearing apparel sold and delivered to a stepdaughter of Henry McDaniel. Credit was given exclusively to the defendant, and the goods were necessities and suitable to the condition of the purchaser. Said stepdaughter was at the time of the purchase seventeen and a half years of age and a member.of the defendant’s family. She had purchased goods for herself at the store on other occasions, had them charged to her stepfather, and he had paid for the same.
    Henry McDaniel was the principal witness for himself. He admitted that his stepdaughter lived with him as a member of his family. He testified further, that he had always provided her with the necessities of life suitable to his condition; that he had never allowed any member of his family except his wife to purchase goods and charge the same to his account; that he did not authorize his stepdaughter to purchase the goods in question; and that she purchased the same after, she had run away from home. ■ The defendant also admitted that he had told another firm with whom he traded not to sell his stepdaughter anything after she had run away from home. He did this as a matter of precaution, because he was afraid she would attempt to purchase goods and have the same charged to his account. He did not notify the plaintiffs not to sell his daughter goods because he did not think of it. .
    The jury returned a verdict for the plaintiffs, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      W. J. Lamer, for appellant.

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

(after stating the facts). It is insisted that the court erred in giving instruction No. 2 at the request of the.plaintiffs. The instruction reads as follow's:

“If you find that the defendant treated, his stepdaughter as a member of his family, and undertook to supply her wants the same as for his own children, and if you find that the said stepdaughter bought the goods on the account in this case, and if you find that such goods were reasonably necessary for her comfort and support in the station of life in which the family was accustomed, then your verdict must be for the plaintiffs unless you further find that defendant had notified plaintiffs before this bill was made not to sell goods to his said stepdaughter on his credit.”

The law is that a father is bound to supply his minor children with the necessities of life. He may be held to pay for necessities furnished by a third person to a minor child without any contract or consent where there is an omission of duty on his part to furnish necessities. If the need exists and the father refuses to act, or in case of some special exigency, such as illness away frotn home, the father would be liable for articles of the necessary class, which a third person may furnish to his minor child. Such agreement may also be implied from a knowledge on the part of the father that his children had bought goods on previous occasions which the father had paid for. Lufkin v. Harvey, (Minn.) 154 N. W. 1097; Ann. Cas. 1917 D, 583. This general rule has been in effect adopted in this State. Smith v. Gilbert, 80 Ark. 525, and Johnson v. Mitchell, 164 Ark. 1.

But counsel for the plaintiffs invoke the well known rule that the alleged error in the instruction given was waived by reason of the defendant having requested and obtained a similar instruction on the same point. Wisconsin & Arkansas Lbr. Co. v. Ashley, 158 Ark. 379. Counsel for the plaintiffs claim that the alleged error in the instruction given was also contained in instruction No. 2, given to the jury at the request of the defendant. The instruction for the defendant reads as follows:

“The jury is instructed that it must find from a preponderance of the evidence adduced at the trial of this cause that the articles charged in the account of plaintiffs to defendant and purchased by the minor must have been necessities for the minor before you can find for plaintiffs, unless you further find that said articles were purchased from said plaintiffs by said minor by virtue of authority from the defendant. ’ ’

It is true that this instruction also allows a recovery, if the jury should find that the goods charged in the account were necessities for the minor, regardless of the fact of whether the father had furnished his stepdaughter with wearing apparel suitable to her condition in life, still the instruction precludes the plaintiffs from recovery, unless it should also find that the articles were .purchased from the plaintiff by the minor by virtue of authority from the defendant.

In this latter respect instruction No. 2, given at the request of the plaintiffs is deficient. It authorizes the jury to find for the plaintiffs under certain conditions, unless it should further find that the defendant had notified the plaintiffs not to sell goods to his stepdaughter on'his credit, and this without regard to the fact of whether he had authorized her to buy goods on his credit or not. This constituted error which was necessarily prejudicial to the rights of the defendant.

. According to the testimony of the defendant he had furnished his. stepdaughter with necessities suitable to his condition in life, and he had not authorized her to buy goods on his credit. Thus it will be seen that the theory of the defendant that he had not authorized his stepdaughter to buy goods on his credit was submitted in the instruction given at his request, and was omitted from the instruction given at the request of the plaintiffs. Therefore, instruction No. 2, given at the request of the plaintiffs, calls for a reversal of the judgment.

It follows that for the error indicated, the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Lipscomb v. Aulenbacher.
    Opinion delivered June 1, 1925.
    1. DOWER — IN PARTNERSHIP PROPERTY — INTEREST ON ADVANCEMENT.— In a proceeding in chancery to have dower assigned to the widow of a deceased partner held that the widow was entitled to recover a sum advanced by her and invested in a homestead which became part of the partnership assets, hut, since the widow shared the occupancy of the homestead during her husband’s lifetime, she ..is entitled to. interest on her advancement only from the time she removed from the homestead.

      2. DowER — PARTNERSHIP property. — In a proceeding to assign dower to the widow of a deceased partner, where land was purchased with partnership funds for the partnership, but deed was first made to the deceased partner individually, hut, before delivery the name of the other partner was inserted in the granting but not the habendum clause as .one of the grantees, the land was properly held to be partnership land, and reformation was unnecessary to the purpose of assigning dower.
    3. Dower — improvements on partnership land. — In a proceeding to assign dower to a widow of a deceased partner, where the latter had purchased land in his own name, but thereafter the . other partner paid half of the purchase price, and the land was improved with partnership funds, the land as thus improved will be treated as partnership land, and dower assigned therein.
    4. ' Dower — partnership land — trust.—In a proceeding to assign dower to the widow of a deceased partner, where money which was being accumulated by the deceased partner for his grandson was used to build a house on a lot belonging to the partnership, held that the partnership did not hold the lot in trust for the grandson, and the widow was entitled to dower in her husband’s interest therein, but provision must be made for payment from the partnership assets of such grandson’s money.
    5. Dower — advancement to buy homestead — lien.—In a proceeding to assign dower to a widow of a deceased partner, where the widow was entitled to a sum advanced by her to the partnership and used in the purchase of a joint homestead which became part of the partnership property, held that the sum so advanced was properly declared a lien on the homestead, with directions that, if it be not discharged, the homestead be sold, rather than have the widow’s rights postponed by .an allowance from a monthly rental of the homestead.
    6. Dower — partnership property — set-off.—In a proceeding to assign dower to a widow of a deceased partner, where the widow prayed and was allowed a money judgment against the surviving partner, it was proper to credit against such liability indebtedness which the widow admittedly owed to such partner.
    Appeal from Clark Chancery Court, C. E. Johnson, Chancellor;
    modified.

      McMillan & McMillan, for appellant.

      John H. Crawford and Divight II. Crawford, for appellees.
   Smith, J.

Appellee is the widow of Jacob Aulen-bacher, wbo died intestate. Appellant, Lizzie Lipscomb, is Ms daughter and only lieir, and her co-appellant, J. C. Lipscomb, is her husband. At the time of Aulen-bacher ’s death, and for a number of years prior thereto, he and Lipscomb had been partners in the mercantile, cattle and land business in Clark County, and at the time of Aulenbacher’s death the partnership owned a number of tracts of land and some lots in the town of Gurdon. The partnership prospered and was solvent at the time of Aulenbacher’s death, and there was an attempt to wind up the partnership affairs and to effect a division of Aulenbacher’s estate 'between his widow and daughter. There was a satisfactory settlement and division of the personal estate, but there was a disagreement as to their respective rights in certain lands, which led to the institution of this suit.

The suit was brought by Mrs. Aulenbacher against her daughter as the heir of her husband and against Lipscomb as his surviving partner, to have dower assigned her in her husband’s estate, and to recover a sum of money belonging to her which the partnership had used, and to have dower assigned in certain rents on the partnership property which Lipscomb had collected after Aulenbacher’s death.

The first item in dispute is referred to by the parties as the $2,000 claim. Mrs. Aulenbacher owned a home, in which she and her husband had lived for a number of years, but she desired a better one. Finally, the old home was sold for $2,000, and with the proceeds of this sale, together with the sum of $3,500 in cash which was advanced by the firm of Aulenbacher & Lipscomb, a new home was bought. The title to this land was taken in the partnership name, and after its purchase both families moved into the new home, and both families resided there until Aulenbacher’s death. After that event a disagreement arose between Lipscomb and Mrs. Aulen-bacher, which increased in acrimony until Mrs. Aulen-bacher left Lipscomb and his family in possession of the home, and she has since lived apart from them.

The court below found that Mrs. Aulenbaeher had advanced the copartnership $2,000, which should he repaid her, and allowed her interest on that sum from the date she left the house. Appellant insists that the $2,000 was a voluntary contribution by Mrs. Anlenbacher to induce the partnership to buy the home, and that Mrs. Aulenbaeher should not be allowed to recover this money. Appellee has cross-appealed from the decree of the court below on this item, and now insists that she should not only be allowed interest on this money, but that the interest should be calculated from the date the money was advanced, and not from the date of her abandonment of the homestead.

Upon a consideration of all the testimony concerning this item, we have concluded that the decree should be affirmed both on the appeal and the cross-appeal. The testimony is undisputed that Mrs. Aulenbaeher advanced the sum of $2,000 to the partnership, and it now has the homestead as a part of the partnership assets, and we do not think this was a donation or a contribution by the' wife either to her husband or to the partnership to acquire this partnership property. On the other hand, we think that equity will be administered by allowing Mrs. Aulenbaeher the $2,000 and interest thereon, as was done by the court below, from the date she surren-dercMl the home to her son-in-law as her husband’s surviving’ partner, instead of allowing interest from the date the advance was made. She had shared in the occupation of this home during her husband’s lifetime, and after his death until she abandoned it on account of friction which had arisen between herself and her son-in-law, and the decree as to this item allowing interest only from the date of her departure is affirmed.

The next item in controversy is referred to as the 120-acre tract. The testimony shows that this land was bought with partnership funds for the benefit of the partnership, but the deed as prepared was made to Aulenbaeher individually. This deed was typewirtten. This omission was discovered before the delivery of the deed, 'and upon the discovery of this omission an attempt was made to correct this error by writing into the deed with a pen the name of Lipscomb as one of the grantees, but his name was not inserted in the habendum clause.

The court found this was partnership property, and we concur in that finding. Appellee insists that the decree involves the reformation of the deed, and that this relief could not be granted because the grantor in the deed was not made a party to this proceeding. We do not concur in this view. The proceeding is one in chancery to assign dower to the widow of a deceased partner in a solvent partnership whose debts have been paid, and the reformation of this deed was not essential to that purpose. The undisputed testimony shows that this land was, in fact, partnership property, and the court was correct in so holding.

The next item involved is referred to as the 30-acre tract. This land was bought by Aulenbacher for $250, and deeded to him alone. After so purchasing the land Aulenbacher proposed to Lipscomb that the partnership take over this land, and Lipscomb paid Aulenbacher $125 to effect that purpose, but no deed was made by Aulen-bacher to Lipscomb. After Lipscomb had paid to Aulen-bacher one-half of the purchase price, the partnership assumed control of the land and commenced to improve it by clearing, ditching and tiling it, and by building a fence, house and barn on it. The chancellor decreed that the widow should have dower in the thirty acres as the individual lands of the deceased and that her dower right in the improvements thereon was unaffected by the fact that the improvements were made by partnership funds after the trade between the partners, wherein Lipscomb paid the $125 to Aulenbacher.

It is first insisted for Mrs. Aulenbacher that the sum spent by the partnership should not be taken into account, as the testimony shows only the amount spent, and not the enhanced value of the land. But we think it fairly appears that tile value of the land was enhanced to the extent of the sum spent in clearing, fencing, ditching, tiling, and in building the house and barn, so that the value of the thirty-acre tract may be said to equal the $250 paid for it and the $1,500 spent in improving it.

It is insisted, however, on behalf of Lipscomb that the enhanced value of the land, resulting from the improvements, should not be taken into account in assigning dower, and the case of Welch v. McKenzie, 66 Ark. 251, is cited as sustaining that contention. In that case a widow claimed dower in lands which had been conveyed to a partnership by her deceased husband in a deed in which she did not join. This court held that the widow was entitled to recover one-third of the rents after the death of her husband, but that the value of the improvements made on the land by the partnership should be excluded in estimating her dower and the rents to which she was entitled.

Here, however, the husband of the widow did not convey away the land. He had the apparent title to it during his lifetime, and at the time of his death, and in equity it should be treated as partnership land, because it was so intended, and each partner had paid one-half of the purchase price, and the land had been improved with partnership funds. The $1,500 spent by the partnership went into improvements, which became a part of the land, and the land, as thus improved, should be treated as a part of the partnership assets and dower assigned accordingly, and the decree of the court below will be reversed in this respect.

The next item relates to lot 9, block 18, Crescent Heights Addition to the town of Gfurdon. As we have said, Mrs. Lipscomb was the only child of Aulonbacher, and the two families lived together as one until after Aulenbacher’s death. Mrs. Lipscomb had an afflicted son, who had been named for her father and who is referred to as “Little Jake.” It was shown that Mr. Aulenbaeher entertained a feeling of greatest affection for this afflicted grandson, who is now sixteen years old, and Aulenbacher commenced the accnmnlation of a fund for Little Jake’s benefit in the child’s early infancy, which had grown to the sum of $2,000 in 1919, at which time the partnership purchased fifteen lots, of which lot 9 was one. The title to all the lots was taken in the name of the partnership, but lot 9 was always referred to as Little Jake’s lot, and Aulenbacher took the $'2,000 and built a house on it, and the court held that this lot belonged to the partnership, and that Mrs. Aulenbacher was entitled to have dower assigned in it.

It is insisted that this is error, and that the court should have found that the partnership held the title to the lot in trust for Little Jake.

We are of the opinion that the court was correct in not declaring that the’partnership held the title in trust to the lot for Little Jake’s benefit. It was, no doubt, the intention of Little Jake’s father and grandfather to give him this lot, but this intention had not been effectuated. The purchase money was paid by the partners, who took the title' in themselves, and they retained control of the property. But the partnership did use Little Jake’s money, and we perceive no reason why it should be allowed to appropriate the $2,000 to its own use and thus deprive him of it.

It is pointed out that Little Jake is not a party to this proceeding and is not, therefore, bound by any decree which may be entered in this cause. This is true, but it is also true that Mrs. Aulenbacher is asking dower in this lot 9, as well as in the other property, and the court decreed it to her, and we do have before us the question as to what dower should be assigned her.

In the case of Lenow v. Fones, 48 Ark. 557, it was held that, upon the death of a member of a partnership, his widow will take dower in the surplus of the real estate of the partnership which remains after paying the partnership debts, for life as in real estate,, and not absolutely as in personal property, unless there was an agreement between the partners for the conversion and sale of the lands after the partnership affairs were settled, in which case she would take dower as in personalty.

Here there was no such agreement, but all debts have been paid, and the partnership is admittedly solvent, aside from the real estate, and we do not, for that reason, reverse the decree assigning dower with directions that the assignment thereof be postponed until this $2,000 item of indebtedness has been paid. There appears to be no necessity for so doing, but the $2,000 item due Little Jake should be taken into account and provision for its payment made upon the remand of this cause before the rights, of the parties properly before the court are finally adjudged, and the court will enter an appropriate decree in accordance with this opinion.

We are of the opinion, therefore, that dower was properly assigned the widow in this lot 9, but the money belonging to Little Jake which was expended in improvements made on it must first be taken into account, and provision made for its payment out of the partnership assets.

The court found that Lipscomb had collected rents on the property herein referred to, for which he should account, and out of which dower should be assigned.

The court declared that the $2,000 advanced by Mrs. Aulenbacher was a lien on the homestead, and gave Lipscomb twenty days within which to discharge the lien, with directions that if not discharged the homestead should be appraised and sold by commissioners, who were named for that purpose, and to assign dower in the other lands as well as the homestead and that, after said sum had been paid Mrs. Aulenbacher, she should have dower in the balance of the proceeds of the sale of the homestead.

It is insisted, as we have said, that the court was in error in awarding Mrs. Aulenbacher a decree for the $2,000; but we have said that we do not think so. It is further insisted that the court was in error in decreeing a sale of the homestead to assign dower in any event and that the equities of the case would have been better sub-served if the court had found the monthly rental value thereof and ordered that the same be paid by Lipscomb, and that Mrs. Aulenbacher have dower ont of the rents to be thus paid. We do not think, however, that Mrs. Aulenbacher should be thus postponed in the assignment of her dower.

Commissioners were appointed to assign dower in the land referred to as the homestead, and in the other lands herein mentioned, and except in the particulars indicated it is not objected that erroneous directions were given the commiss oners in the discharge of this duty, and except as we have herein indicated the decree of the court below in the matter of the assignment of dower will be affirmed.

It is finally insisted by Mrs. Aulenbacher on her cross-appeal that the court erred in rendering judgment against her for $197.18 in favor of Lipscomb. This indebtedness -of $197.18 to Lipscomb by Mrs. Aulen-bachér is not questioned, but it is insisted that it cannot be taken into account in an action of this character.

We think, however, that no error was committed by the court in this respect. Mrs. Aulenbacher prayed and was awarded a money judgment against Lipscomb for rent which he had collected, and it was proper to credit against this liability the indebtedness which Mrs. Aulen-bacher admittedly owed Lipscomb, and the decree in this respect is therefore affirmed.

The cause will therefore be remanded, with directions to enter a decree in accordance with this opinion.