author: Wood, J.

text:
    Fulcher v. Dierks Lumber & Coal Company.
    Opinion delivered May 12, 1924.
    1. Logs and logging — cancellation op timber deed. — In an action to enjoin interference with the construction of tramways for hauling logs, where the court found that plaintiff’s right to-remove timber from defendant’s land was lost by failure to remove the timber within a reasonable time, it was error not to cancel plaintiff’s timber deed as prayed in defendant’s • cross-complaint.
    2. Logs and logging — time for cutting timber. — Timber must be cut and removed within a reasonable time under a deed permitting its removal at the grantee’s convenience.
    3. Logs and logging — reasonable time. — Twenty years is more than a reasonable time for cutting and removing timber, under a contract permitting its removal at the grantee’s convenience.
    4. Appeal and error — harmless error. — Error in failing to cancel a timber deed was not prejudicial where the decree forever precluded the grantee from asserting a right to cut and remove the timber.
    5. Easements — right-of-way.—It is not essential to the validity of a grant of a right-of-way that it be described by metes and bounds or by figures giving definite dimensions of the easement.
    6. Easements — right-of-way.—Where a right-of-way is reserved or granted, but not defined, the owner of the servient estate, in the first instance, has the right to delimit it, and, in the event of his failure to do so, it may be selected by the grantee of the easement, but, in either case, the location must be a reasonable one, taking into consideration the interest and convenience of both the dominant and the servient estates.
    7. Railroads — failure to file map or profile. — Crawford & Moses’ Dig., §§ 8461-2, requiring railroads to file a map or profile of the right-of-way acquired by them, have no application to rights-of-way acquired for tramroads, though a failure to comply therewith may be considered as evidence on .the question of abandonment, where the grant also included the Tight to operate as a common carrier.
    8. Logs and logging — abandonment op right-of-way for tram-road. — Evidence held to sustain a finding that the owner of timber rights did not abandon a right-of-way for tramway granted in the deed conveying the timber.
    9. Logs and logging — non-user of right-of-way. — Mere nonuser of a right-of-way for a tramway created by deed, for a period however long, will not amount to an abandonment.
    10. Easements — abandonment a jury question. — Whether there has been an abandonment of an easement is a question of fact and not of law, and the acts relied on as evidencing an intention to abandon should be of an unequivocal and decided character.
    11. Easements — -adverse possession. — Mere occupancy and culti- • vation of land were not adverse to the rights of the owner of a right-of-way, as possession must be open, hostile and exclusive.
    12. Vendor and purchaser — notice of recorded instruments.— One acquiring title to an easement must take notice of all recorded instruments in the line of his purchased title.
    13. Easements — adverse possession. — Mere possession by a subsequent grantee of land was not notice of holding adversely to the owner of a right-of-way across the land, since the holding of the grantee’s predecessors in title may have been permissive, and the grantee acquired no greater-rights than they had.

      '■14.' Set-off and counterclaim — when properly allowed. — It was • ' not error to refuse to strike out a so-called amendment to complaint which set up a counterclaim against defendant’s claim for damages for construction of a tramway over land.
    15: Equity — retention for complete relief. — Where the court acquired jurisdiction for the purpose of injunction against inter- ■*" : ference with the construction of a tramway, it was proper for it to retain jurisdiction and grant all relief to which the parties were entitled, including damages for use and occupation of plain- , ' tiff’s land by 'defendant, set up against defendant’s claim for damages against plaintiff.
    -16. Adverse possession — holding by permission. — The holding of land begun by permission will not ripen into an adverse or ■ hostile right until notice of such adverse holding is brought home to the owner, and the holding has continued for the : statutory -period.
    • 17. ■ Adverse possession — tacking possession. — One claiming land by "adverse possession has the burden of proving that his :. . - predecessors in title held adversely, and that the legal owner had notice thereof, before he could -tack his possession on to theirs.
    18. Adverse possession — successive possession. — One seeking to tack his adverse possession on to that of predecessors in possession must prove a privity of estate between himself and such predecessor, as the mere fact of successive possessions does not constitute privity of estate.
    Appeal from Howard Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      W. P. Feaeel, for appellant.
    1. When the court determined that the deed was no longer enforceable as to the timber, it became, and was, its duty to cancel the deed. 130 Ark. 9.
    2. An easement or right-of-way is an interest in land, and its transfer is controlled by the same essentials and requirements necessary to convey the fee. 73 Ark. 293; 112 Ark. 572. And this court has uniformly held that, if a conveyance of land fails to describe the land with sufficient certainty to ascertain its identity and location, .the grantee takes nothing. 3 Ark. 18; 30 Ark. 640; 48 Ark. 419; 35 Ark. 470; 106 Ark. i83; 120 Ark. 69; 117 Ark. 151; Rorer on Railroads, 318. The wise and reasonable requirement of- the statute, C. & M. Dig., §§ 8461-2, as to filing a map or profile of the right-of-way in the clerk’s office within two years after its acquirement, was never complied with in this case. Rorer on Railroads, 330. .
    3. Appellant was an innocent purchaser, and, the court having expressly found that he “acquired title to said land by warranty deed * * * and entered into possession thereof, without notice of plaintiff’s claim of right-of-way except as implied by law from the record of plaintiff’s deed, it is difficult to understand why the court did not decree the grant of right-of-way void and cancel the deed, since the record of the grant furnished him no. notice of the location of the right-of-way whatever. • 131 Ark. 335.
    4. If the grant of the right-of-way was ever valid, the same is now void because of the abandonment and nonuse of them by the appellee' for more than 20 years.

      5. Appellant and his predecessors in title have acquired title to the land over which appellee built its tramway by adverse possession, having had the same inclosed and in actual cultivation for more than 15 years. The law of adverse possession applies to rights-of-way and other interests in land. 127 Am. St. 254; 22 S. W. (Ky.) 353; 87 Am. St. 765; 92 Am. St. 840; 146 Ark. 347.
    6. The motion to strike the amendment to the complaint should1 have been sustained, and it was error to quiet the title in appellee to the 14.53 acres. C. & M. Digest, §§ 1076-1079.

      Abe Collins and Lake & Lake, for appellee.
    1. The easement is not void for indefiniteness of description. It is not essential that an easement be described by metes and bounds in order to make it effective. All that is required is a reasonably accurate description of the right conveyed. 19 C. J. 971; 130 N. Y. 465, 27 Am. St. Rep. 533; 125 Ark. 357; 67 Miss. 579; 75 So. (Ala.) 574, 576; 197 Fed. 611, 616; 216 Mass. 248; 98 Miss. 134.
    2. Crawford & Moses ’ Digest, §§ 8461-8462, requiring railroads to file a máp and profile of rights-of-way, relate to railroads chartered and operated as common carriers, and have no application here. 159 Ark. 484.
    3. There is no merit in the claim that appellant acquired the land without notice of appellee’s claim of right-of-way. The law required him to take notice of the deed of Young to appellee appearing on the record and of the easement thereby conveyed. 19 C. J. 939; 108 Ark. 490; 87 Ark. 490.
    4. Mere nonuser, however long continued, will not be considered an abandonment of a right-of-way. 97 Ark. 234; 19 C. J. 941, 942, and authorities cited; 1 A. L. R. 884..
    5. There is no proof in the record that either appellant or his predecessors in title were claiming adversely to appellee’s easement in the land. 19 C. J. 956; 133 Ark. 589; 147 Ark. 521; 160 Ark. 48. The burden was on appellant .to show that his possession was actual, hostile, ■open and exclusive, continuing without break “for the full period required by the statute. 65 Ark. 422; 82 Ark. 51; 49 Ark. 266; 61 Ark. 464; 110 Ark. 572; 117 Ark. 579; 126 Ark. 86.
    6. Appellant’s contention that the motion to strike the amendment to the complaint because the counterclaim set up did not grow out of the transaction on which the original suit is based, is fully answered by C. & M. Digest, § 1197. 134 Ark. 311; 135 Ark. 531; 147 Ark. 521. Chancery, having jurisdiction for one purpose, will retain it for all purposes and grant all relief, legal or equitable, to which the parties are entitled. 113 Ark. 100; 114 Ark. 206; 92 Ark. 15.
   Wood, J.

This is an action by the Dierks Lumber & Coal Company, hereafter called appellee, against W. F. Fulcher, hereafter called appellant, to restrain the latter from interfering with the appellee in the construction of certain tramways across lands in the possession of the appellant, but over which appellee desired to run its tramways for -the purpose of hauling timber to its mill. Appellee alleged that, in 1904, it purchased of one Thomas J. Young and wife all the pine and oak timber on the west half of the northeast quarter of section 3, township 7 south, range 27 west, and obtained a deed thereto, which it duly filed in the office of the recorder on the 29th day of February, 1904; that, under the provisions of this deed, the appellee, its successors and assigns, were granted a right-of-way one hundred feet in width for the purpose of maintaining, constructing, and operating a railroad thereon, and the full and free right, power and authority,, in addition to the right-of-way, to enter upon said-lands for the purpose of cutting, sawing, hauling, and carrying away said timber; that appellee, by the terms of said deed, was also granted the right to construct and maintain a tramway of such width as it desired for the purpose of removing the timber from said lands, or from any other land to and over which the appellee might construct its tramways, the intention of the grantor being to graht to the appellee the right to •build',', maintain and operate the railroad and tramway across the lands owned by the grantor; that the appellant is the present owner of the above tract of land, having acquired title thereto by mesne conveyance from Young, but that he bought subject to the rights of the appellee under its 'timber deed. The appellee alleged that it was now ready to cut and remove the timber from the above tract of. land, but that appellant refused to permit the appellee to enter upon said land for the purpose mentioned. Appellee alleged that, unless it is permitted to buildthe tramway across the land and remove its timber, it will suffer irreparable injury; that the appellant is ■insolvent, and that appellee has no adequate remedy at law. Appellee therefore prayed that appellant be permanently enjoined from interfering with appellee’s ■rights.

In his answer, appellant admitted that he was the present owner of the lands described in appellee’s complaint, having acquired title thereto by mesne conveyance from Young and wife, as alleged, but denied that he bought the lands subject to the rights of the appellee •under its timber deed. He denied that the appellee, its ■Successors and assigns, were g’ranted a one hundred-foot 'fight-of-Way through and upon the lands described, but ’•admitted that there was an attempt in the deed by Young 'to the ’appellee to grant the right-of-way. He alleged 'that "the deed was now void because the appellee , had failed'fortwenty years to exercise its right'to a right-of--way. over, the lands, and, further,, that the deed was void ■'because there was- lio description of the right-of-way. • claimed to have been granted. He admits that the deed ^granted -to-the appellee,'its successors and assigns, the -H^ht'toí'cOn'structthé tramway, but alleged that the grant -to hbn&trii'et the"trdnaway Was likewise now void for the iréá'sSH'fhát''there-Was mp sufficient description of such Yightkpfiway'imthe' deed, and for the'further reasoh'that ''thd'appel-rée'hád not'attempted to'' use' such grant for •^more'-tha'h.'twenty''yearsV ......• '= :.•"■'■' " v " •"'■

By way of cross-complaint, the appellant alleged that there was no time fixed in the deed for the cutting and removing of the timber from the land by the appellee, and that the deed was now void because the appellee had not exercised its right to cut such timber within a reasonable time, and that it had now forfeited such right, as well as its right to build the tramway across the lands. Appellant alleged that, under the protection of a temporary injunction, the appellee had built two tramways' across a large part of appellant’s cultivated land, to appellant’s damage in the sum of $1,000. He alleged that appellee was threatening to go upon the land to cut the timber growing thereon. He alleged that the appellee did not, within two years after the execution of the timber deed to appellee, file with the clerk of Howard County á map or profile showing the location of the right-of-way of its railroad and tramroads which it intended to construct, and had thereby abandoned and forfeited any right it may have had to such right-of-way. Appellant also set up that he and those under whom he held title had been in open, hostile and actual possession of the lands for more than seven years, and had, for this length of time, paid the- taxes thereon. He also alleged that the appellee was barred by the statute of limitations and' by laches from now locating its right-of-way and from maintaining this action.

The appellee answered appellant’s cross-complaint, denying all of its allegations. Appellee also, by an amendment to its complaint, set up that the appellant, for the last six years, had cultivated 14.53 acres of land belonging to the appellee, of a rental value of $5 per acre, and prayed judgment against the appellant in the sum of $435 for such rental, and for an additional sum of $19.22 on account of timber cut and removed by appellant from appellee’s land, and that it be permitted to offset such judgment against any amount that appellant might recover against it. ...

The appellant answered this amended complaint, and alleged that he had cultivated the fourteen acres of land, for more than fifteen years, believing all the time that his fence was on the true line, and. for that reason that he had acquired title to the fourteen acres by adverse possession. He also moved to strike the claim for this rental from the files, for the reason that it was improperly joined with the original action.

Appellee introduced the deed from Young and wife, dated January 1, 1904, the recitals of which are as follows:

Thomas J. Young and Sarah E. Young, his wife, in consideration of the sum of $100 paid by the Dierks Lumber & Coal Company, do hereby grant, bargain, sell and convey unto the Dierks Lumber & Coal Company, its successors and assigns, forever, all merchantable timber, pine and white oak, now standing, growing or situated on the of the NE1^ of section 3, township 7 south, range 27 west.

“And we, the aforesaid grantors, do hereby, for the consideration aforesaid, grant, bargain, sell and convey unto the said Dierks Lumber & Coal Company, and unto its successors and assigns forever, a right-of-way 100 feet in width in, through, upon, across and along the aforesaid premises and tracts of land, for the purpose of maintaining, constructing, erecting and operating a railroad, which is intended to be chartered, maintained, constructed and operated by said Dierks Lumber & Coal Company, their successors, associates, and assigns; and the full and free right, power and authority, in addition to the right-of-way and other privileges hereinbefore mentioned and set forth, of entering upon said lands at any and all times for the purpose of cutting, sawing, hauling, carrying away, and removing the said timber and operating, constructing, maintaining and erecting the aforesaid railroad.

“And we, for the consideration aforesaid, also grant and convey unto the said Dierks Lumber & Coal Company, its successors, associates and assigns, the right, privilege and permission to build, construct and maintain tramways through, over and across the above described lands, of such width as may be desired by the said Dierks Lumber & Coal Company, its successors and assigns, for the purpose of removing, handling, hauling, carrying away and transporting the timber aforesaid from said lands, or to and from any other lands to and over which the said Dierks Lumber & Coal Company, its successors, associates and assigns, may construct said tramways. The intention of the grantors herein being to give a permanent right-of-way to the said Dierks Lumber & Coal Company, its successors, associates and assigns, to build, maintain, construct and operate the railroad and tramways across the said lands.”

Upon the above and other documentary and oral testimony, which is duly authenticated and brought into this record, the court made its findings and entered its decree permanently restraining the appellant from interfering with the appellee in constructing, maintaining and operating tramways across the lands described in the complaint, and confirming and quieting title in the appellee to 14.53 acres of land which had been inclosed and occupied by the appellant. The court dismissed the appellant’s cross-complaint for want of equity, but denied appellee’s claim for damages on account of the timber cut by appellant on appellee’s land, and also appellee’s claim for rents for the 14.53 acres of land. The court also entered an order requiring the appellee to construct, for the benefit of the appellant, at a point to be designated by him, thirty days from the date of the judgment, a convenient crossing over appellee’s tramways. From this decree 'both parties have appealed. •

In addition to the deed above set forth, we will refer to such parts of the evidence as may be necessary as we proceed.

The appellant, in its cross-complaint, alleged that no time was fixed in the deed for removing the timber from the lands described in the complaint purchased by the appellee from Young, and that the appellee had forfeited all of its rights to remove the pine and oak timber because it had failed to exercise its right within a reasonable time. The appellant prayed, among other things, that the deed from Yonng and wife be canceled and set aside, and that, npon final hearing, it be enjoined from going upon, cutting, and removing any timber standing upon said lands. The appellee denied the above allegation. The court, in its decree, recites “that the plaintiff has conceded that, not having cut the timber on said lands within a reasonable time, said contract is no longer enforceable in so far as said timber is concerned. ”

In view of the issue thus raised by the pleadings and the finding of the chancery court as set forth in its decree, the court erred in not granting the prayer of appellant’s cross-complaint for the cancellation of appellee’s deed to the merchantable pine and white oak timber on the lands described in the deed, and erred in not restraining appellee from cutting and removing such timber. Such decree should have followed, as a necessary result of the court’s finding on this issue in the case. Under the provisions of the deed that the “timber may be removed, hauled and transported from said land at the convenience” of the appellee, appellee was required to cut and remove the timber within a reasonable time. From 1904, the date of the deed under which appellee claims, until the institution of this suit January 19, 1923, was more than a reasonable time. Smith v. Dierks Lumber & Coal Co., 130 Ark. 9.

But, while the court erred in dismissing appellant’s cross-complaint, and in not entering a decree canceling appellee’s deed as to its right to cut and remove the timber, nevertheless this error was not prejudicial to the rights of appellant, because, under the recitals of the decree, the appellee and its successors in title would be forever precluded from asserting a right to cut and remove the timber.

The appellant contends that the grant of the right-of-way for the railroad and tramways is void for indefiniteness and uncertainty. We cannot concur with learned counsel for appellant in this view. In 19 C. J. 971, § 210, the law applicable to easements of the character under consideration is correctly declared as follows: “Where a conveyance of a right-of-way does not describe or define it by metes and bounds, the grantee is entitled to a convenient, reasonable and accessible way. What constitutes a way of this character depends upon the condition of the place and the purposes for which it-was intended and the acts of those having the right of user. However, the location must be reasonable as respects the rights of the grantor as well as the grantee.”

While an easement or right-of-way is an interest in land, and can only be conveyed by deed as land is conveyed, yet it is not essential to the validity of the grant of an easement that it be described by metes and bounds or by figures giving definite dimensions of the easement. On the contrary, the grant of an easement is valid which designates the easement or right-of-way as such, and definitely describes the lands which are made servient to the easement. As is held by the Court of Appeals of New York, “when the right-of-way is not 'bounded in the grant or reservation, the law bounds it by the lines of reasonable enjoyment.” Where such right-of-way is reserved, or expressly granted and not defined, the owner of the servient estate, in the first instance, has the right to delimit it, and, in the event of his failure to do so, it may be selected by the grantee of the easement; but, in either case, the location must be a reasonable one, taking into consideration the interest and convenience of both the dominant and servient estates. 9 R. C. L. 791, § 48, and cases there cited; Grafton v. Mauer, 103 N. Y. 465, and cases there cited; see also U. S. v. Van Horn, 197 Fed. 611-616; 14 Cyc. 1161-1203; Alabama Corn Mills Co. v. Mobile Docks, 75 So. 574; McKinney v. McKinney, 216 Mass. 248.

' Grants of the character .under review are what are sometimes ■ designated'“floating rights-of-way”- which -were expressly recognized as valid by us in the case of St. L. I. M. & So. Ry. Co. v. Stevenson, 125 Ark. 357. In that case the deed to the railroad company granted -a right-of-way “through and over said lands situated as ■aforesaid,” without specifying the width' of-the right-of-way so granted. Speaking of this grant, we said, “the way granted was not fixed by the deed as to place, quantity, or direction. It was, until located, a floating right, exercisable over any portion of the land within the limit or width specified.” The above language was quoted from the Supreme Court of Mississippi in the case of Vicksburg & M. R. R. Co. v. Barrett, 67 Miss. 579, where the grant of the right-of-way “was not to exceed in width one hundred feet, within which limit the officers of the company were to use so much land as they might deem necessary. ’ ’

Sections 8461 and 8462 of Crawford & Moses’ Digest require all railroads to file a map or profile with the county clerk, showing the rights-of-way acquired by them, within two years after said rights-of-way have been acquired. The county clerk of Howard County testified that neither the appellee, nor any one for it, had ever filed in his office a map and profile showing the location of the railroad or tramway on appellant’s land. The above sections of the Digest refer to railroad corporations which are chartered and operated as common carriers. Valley Lbr. Co. v. Westmoreland Bros., 159 Ark. 484. While the appellee alleges in its complaint that it is entitled to a right-of-way one hundred feet wide for the purpose of constructing, maintaining and operating a railroad which is intended to be chartered, and while the appellant in its cross-complaint alleges that the appellee had not filed in the office of the clerk of Howard County a.map or profile showing the location of the right-of-way, yet we do not understand that the appellee was asserting any charter powers as a railroad corporation to operate a railroad over appellant’s lands as a common carrier, and certainly the court’s decree did not award appellee such right. The court’s decree, in this respect, enjoined the appellant from interfering with the appellee in constructing, maintaining and operating its tramways across appellant’s lands. We do not perceive therefore that the hbove sections of the Digest have any application to any issue presented by this record. The testimony showing a failure to comply with these sections of the statute in obtaining a charter to operate a railroad as a common carrier and filing the map or profile, as required, may be considered as evidence on the issue as to whether or not the appellee had forfeited and abandoned by nonnser the rights granted it under the deed. This brings ns to the issue of abandonment.

The appellant contends that, inasmuch as no survey or location was ever made and no map or profile ever filed, in compliance with the above sections of the statute, the appellee had, by nonuser, abandoned both its right-of-way for a railroad and also its right-of-way for a tramway. The court made no affirmative finding as to the right-of-way for a railroad, and, as we have observed, we do not consider that issue is presented by the pleadings, proof, and the decree of the court for decision. It is not germane here, further than as evidentiary on the issue as to whether or not the appellee has abandoned its right-of-way for a tramway by reason of nonuser of such right-of-way for more than twenty years. The deed grants to the appellee, its successors and assigns, the right for a tramway over the lands described therein, for the purpose of removing and transporting timber from that land, or “to and over any other lands to and over which” the appellee, its successors and assigns, may construct said tramway, the intention being to give a permanent right-of-way across the lands mentioned and through and across all lands owned or held by the grantor. ’ ’

A witness, who was working for the appellee at the time these lands were bought, stated that the means of logging the timber purchased in that section was mapped out and investigated before the timber was bought, and the plan contemplated hauling the timber over these lands. In buying the timber, appellee was always looking for tramroads. Appellee had bought between seventeen and twenty million feet of timber to go over this- tram, and there was no other route over which the timber could be moved conveniently. To move appellee’s timber over this tram would require about twelve months. ' This testimony tends strongly to prove that the intention of the appellee was not to abandon its right to a tramway or logging road over appellant’-s lands.

The trial court found that there was no evidence in the record of an intention on the part of the appellee to abandon the right-of-way across the lands, except the bare fact of nonuser; that, during all the time since it acquired the right-of-way, appellee had owned a large body of timber which must be reached by a logging road, and there is no evidence that it had provided, or could provide, a right-of-way to this timber over any other land, and appellee contemplated using the right-of-way across appellant’s land when it became necessary to reach its timber in that locality.

To justify the finding that an easement by grant had been abandoned by nonuser, theré should be something in the testimony, in addition to mere nonuser, indicating an intention to abandon. For the law is that, “unless otherwise provided by statute or by the deed itself, the mere nonuser of an easement created by deed for a period however long will not amount to an abandonment. ” 19 C. J. 942, § 151, and numerous cases there cited. Whether there has been an abandonment of an easement in any given case is a question of fact and not of law, and the acts relied on as evidencing, an intention to abandon -should be of an unequivocal and decided character.' 19 C. J. 940, § 149, and cases,cited in note.

The cases seem to be generally agreed that mere nonuser of an 'easement will not extinguish the same. 1 ,AL. R. 884,.where the cases are annotated. In the case of Gurdon & Ft. S. R. Co. v. Vaught, 97 Ark. 234, on the issue as to whether or not the railroad company had abandoned its right-of-way, which had been conveyed by deed,.because of non-user, we said: “While nonuser does not. alone constitute an abandonment, yet it is some evidence thereof, and when, in .addition to such nonuser, facts 'are proved and-circumstances shown in the testimony evincing that intention, then the abandonment is established.' * *• * To constitute an abandonment of án easement acquired by grant, acts must be shown of,such an unequivocal nature as to indicate a clear intention to abandon. * * * The abandonment of an easement of a public nature, like a railroad right-of-way, is more readily presumed from nonuser. ’ ’

In the present case, as we have seen, the issue of abandonment must be treated, not like the abandonment of an easement of a public nature, as the abandonment of the right-of-way by a railroad, but as an abandonment of an easement of a private nature. It occurs to us that there is no escape from the conclusion that there was no abandonment by the appellee of its right to build tramways over the appellant’s lands, and that appellee’s right is as broad as the terms of the grant set forth in the deed.

The appellant next contends that the appellee has lost its right in the easement by adverse possession of appellant and his predecessors in title. This likewise is purely an issue of fact. The trial court found “that there is no evidence in the record tending to show that the defendant was holding this land adversely to the right of the plaintiff to the right-of-way. * '* There is nothing to show that he ever brought to the attention of the plaintiff that he was holding adversely to its rights.” While the undisputed testimony shows that the appellant and his predecessors in title had inclosed and occupied the lands for more than fifteen years before this action was brought, nevertheless this of itself was not sufficient to prove that the appellee had lost its right to the easement by adverse possession of the appellant and his predecessors in title. For aught that the record shows to the contrary, such occupancy during all these years was not adverse to appellee’s easement. To make such a holding adverse, it was incumbent upon the appellant to prove, not merely that he was occupying and cultivating the land, but that he was holding the same adversely to the rights of the appellee. The burden was upon the appellant to prove not only that his possession was actual, but that it was open, hostile and exclusive. Nicklace v. Dick erson, 65 Ark. 422; Newman v. Peay, 117 Ark. 579; Jones v. Temple, 126 Ark. 86.

The mere occupancy or cultivation by the appellant might have been all the while by permission of the appellee, and, in the absence of proof to the contrary, it must be held that such holding was permissive and not adverse. The mere inclosing and cultivating' the lands for the length of time indicated was not inconsistent with the appellee’s rights, unless appellant, or those under whom he claims, notified the appellee that they intended to hold them adversely. The same rule as to adverse possession applies to easements as to the land itself. 19 C. J. 556; see Britt v. Berry, 133 Ark. 589; Kell v. Butler, 147 Ark. 521; Moyer v. Bailey, 146 Ark. 347. It must not be overlooked that, when appellant purchased these lands, he did so at least with constructive notice that they were burdened with appellee’s easement, because the deed from Young and wife to the appellee was executed January 1,1904, and duly recorded February 29,1904. Appellant acquired his title through mesne conveyance from Thomas J. Young and wife, his immediate grantors being W. G. George and wife, and his deed was dated February 5, 1917. The appellant had to take notice of all prior recorded instruments in the line of his purchased title. White v. Moffett, 108 Ark. 490. Appellant therefore was not an innocent purchaser, and was not relieved of the burden of notifying the appellee that he’ was holding adversely to the rights of the appellee. Appellant’s mere possession was not such notice because the holding of his predecessors in title may have been permissive, and he acquired no greater rights than they had. See Kell v. Butler, supra. Appellant’s grantor, George, when he purchased of Young, had constructive notice of appellee’s right to the easement, because appellee’s deed to such easement was then of record. Collins v. Bluff City Lumber Co., 86 Ark. 202.

In his cross-complaint appellant set up that appellee had damaged him, by building tramways over his lands, in the sum of $1,000. The appellee answered this cross-complaint, denying its allegations, and, on the same day, it filed what it designates as an amendment to its complaint, in which it set np that the appellant had been cultivating 14.53 acres of land which had a rental value of $435.90. Appellee also set up that appellant had cut timber from its land of the value of $19.22, and in its prayer to this pleading it asked that it have judgment for the alleged rents, and that the judgment therefor be offset against any judgment that appellant might recover against it, and also prayed for all other legal, proper and equitable relief. The appellant answered this pleading, setting up title to the 14.53 acres by adverse possession, and also moved to strike this pleading of the appellee from the files on the ground that the counterclaim set up therein did not grow out of the same transaction on which the suit was based. It does not appear that the trial court ruled, or was asked to rule, before the hearing on the motion to strike. At the hearing the court found that the 14.53 acres of land belonged to the appellee, and that the appellant had been cultivating the same for six years; that the rentals due by appellant to the appellee on account of such occupancy of this land would be offset by the damages which appellant had sustained by reason of the construction and maintenance of the tram by the appellee over the appellant’s land.

The court did not err in failing to strike from the files appellee’s so-called amendment to its complaint in regard to the 14.53 acres. Although designated as an amendment to the complaint, it was in the nature of a set-off or counterclaim against appellant’s claim for damages against the appellee in the sum of $1,000. Under the act approved March 1,1917, § 1197 of Crawford & Moses’ Digest, a set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort, and it is properly pleaded whether it arose out of the contract or transaction sued upon or not. Coats v. Milner, 134 Ark. 311: Smith v. Glover, 135 Ark. 531; Huggins v. Smith, 147 Ark. 521. Besides, the court having acquired jurisdiction for the purpose of the injunction, it was proper for it to retain it and to grant all the relief, legal or equitable, to which the parties in the lawsuit were entitled. Merchants’ & Farmers’ Bank v. Harris, 113 Ark. 100-111, and cases there cited. See also Hall v. Huff, 114 Ark. 206.

The finding by the court that the appellant had not acquired title to this 14.53 acres by adverse possession is not clearly against a preponderance of the testimony. The appellant only bought eighty acres from George, and this did not include the 14.53 acres, although it was under fence. Much of what we have already said in regard to the issue of appellant’s alleged title to the easement by adverse possession is applicable to this 14.53 acres. There is nothing in the testimony to show that the holding by George of this tract was adverse to the appellee, nothing to show that such holding was not originally permissive, and that it did not so continue after appellant began to occupy it. If the holding began by the permission of the appellee, it would not ripen into an adverse or hostile right until notice of such adverse holding was brought home to the appellee and. the holding had been continued thereafter for the statutory period. Kell v. Butler, and Britt v. Berry, supra. There is no testimony to prove that appellee had notice of any adverse holding* of this tract by the -predecessors of the appellant, and appellant himself had only had possession thereof for six years. The burden was upon the appellant to prove that his predecessors held this tract adversely, and that appellee had notice thereof, before he could tack his possession on to theirs and thus build up a title by adverse possession. There is no testimony to show that there was any privity of estate between George and the appellant as to this 14.53 acres. “The mere fact of successive possessions appearing would not constitute such privity.” Erck v. Church, 4 L. R. A. 641, and case-note. See also Waller v. Dansby, 146 Ark. 306, and cases there cited. It was within the scope of appellee’s prayer for general relief to quiet its title to this 14.53 acres, and the decree of the court in that respect was not erroneous.

The appellee, on its appeal, contends that the court erred in not rendering a decree in its favor in the sum of $190, made up of $174 for rents for the 14.53 acres at $4 per acre for three years, and $16.29 for 5,432 feet of timber cut from the land of appellee by the appellant at $3 per thousand. The appellee did not pray any judgment over against the appellant for rents. Its specific prayer concerning this was that such judgment as might be awarded it for rents be offset against any judgment that might be rendered against it in favor of the appellant for damages to his lands. The court disposed of this contention by finding that whatever damages appellant had sustained to his lands by the building and maintenance of the tramways were offset by any amount that might be due the appellee for use and occupancy of its land by the appellant. The court might have found, from the testimony on behalf of the appellant, that the manner in which the trams were constructed and maintained had made the cultivation of his lands more inaccessible and inconvenient than it otherwise would have been, and thereby damaged the appellant. The witnesses do not fix the amount of such damages, and the court does not, in its decree, fix any amount. The undisputed testimony shows that a reasonable value for the use of the 14.53 acres was between four and five" dollars per acre. We cannot say that the court erred in finding that the appellant sustained damages by reason of the manner in which the •tramways were constructed and maintained, nor can we say that the court erred in finding that the amount of such damages would offset and equal whatever amount • the appellee might be entitled to recover for the use and occupancy of its 14.53 acres by the appellant. Indeed, it occurs to us that the finding of the court on this branch -'ofthe case was entirely just and equitable, for the burden of’ proof to show that the appellee was entitled to judgment for the use and occupancy of the 14.53 acres Was on the appellee. We do not find any evidence in the record .tendingto.prove that the occupancy of the 14.53-acres by the appellant was not by consent and permission of the appellee. If such were the case, then of course the appellee would not be entitled to recover as for use and occupation.

Appellee does not even allege, much less prove, that such occupancy by the appellant was without its permission. It therefore fails to establish its contention that it was entitled to a judgment for use and occupation of the 14.53 acres by the appellant.

As to the timber, the appellee proves by one witness that he saw the appellant cut only one tree, and saw stumps where other trees had been cut, but does not show that appellant cut these. On the other hand, the appellant admits that he cut one tree, but denies that he cut any other timber, except saplings, and says that the tree he cut was not fit for sawlogs, as it was rotten after it got up a piece from the bottom. Therefore the court did not err in denying the appellee any judgment for the timber.

Upon a careful examination of the whole record we do not find any error prejudicial to appellant, and the decree is therefore affirmed.


source: Caselaw Access Project

author: E. B. Kinsworthy, special Judge. Hart, J.,

license: Public Domain

text:
    Adkins v. Harrington.
    Opinion delivered May 12, 1924.
    1. Highways — disbursement op road funds — validity op special act. — Special Acts 1923, No. 275, providing for payment of three-mill road tax levied on property within a certain improvement district to the treasurer of the district, is not in conflict with Const., art. 7, § 28, granting to county courts exclusive jurisdiction over matters relating to roads and the disbursement of moneys for county purposes, and amendment 3, providing for the levy of a road tax not exceeding three mills, but not designating the agency to receive and disburse the funds so collected.
    2. Taxation — legislative control. — Unless inhibited by the Constitution, the Legislature has full power over all matters of taxation and collection and disbursement of taxes, and may exercise control over all revenues collected by subordinate branches of the State government.

      3. Highways — streets of city. — The streets of a municipality are public roads of the county of which the municipality is a component part.
    4. Highways — legislative control over streets. — The State, in its sovereignty over all public highways, has full power over streets, as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency as it deems best the power of supervision and control over streets.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;

    affirmed.

      W. H. Bonham, for appellants.
    The act is in conflict with § 28, article 7, of the Constitution. It makes no requirement that the commissioners of the street improvement district shall expend the money collected exclusively in the construction and repairing of the street, whereas Amendment No. 3 to the Constitution requires that said money shall be used in “making and repairing public roads and bridges, and for no other purposes.” It is quite clear that a street improvement is not such a “governmental agency” or branch of the government as falls within the meaning of the decision in the case of Sanderson v. Texarkana, 103 Ark. 529.
    The effect of the act, No. 275, is to give the improvement district power to levy a tax of three mills on all real property within the district for the specific purpose of constructing a local improvement. 152 Ark. 573; 158 Ark. 84.

      Sam T. Poe, Tom- Poe and Louis Tarlowski, for appellee.
    The laws of the State regulating the organization of municipal improvement districts and the duties of the commissioners thereof clearly define the manner in which the fund in question may be used. It will be presumed that the commissioners will obey the law. C. & M. Digest, §§ 5647 et seq.; 22 R. C. L. 472, par. 143. Under the State laws, improvement districts terminate when the improvements are completed and the indebtedness paid. In this case, when the indebtedness incurred for the improvements has been paid, the obligation under the act 275, Acts 1923, to pay the three-mill road tax to the treasurer of the improvement district will cease. A local improvement district is a governmental agency created for the specific purpose of constructing and maintaining a local improvement. 152 Ark. 573; 158 Ark. 84. The act is valid. 103 Ark. 529; 122 Ark. 184; 76 Ark. 22; 152 Ark. 573; 158 Ark. 84; 119 Iowa, 619; 30 Mont. 338; 28 Cyc. 832. The effect of the act is not to grant to the improvement district power to levy a tax of three mills on all property within the district for the purpose of constructing a local improvement, but the effect thereof is to contribute to the cost of the construction from a public fund over which the General Assembly has control. Whaley v. Northern Road Improvement District, 152 Ark. 573, relied on by appellants, sustains appellees’ contention as to the effect of the act. See p. 576.
   E. B. Kinsworthy, special Judge.

Street Improvement District No. 340 of the city of Little Rock, Arkansas, and the South Broadway annex thereto, were1 organized under the laws of the State of Arkansas regulating the organization of improvement districts in cities and towns, for the purpose of paving Broadway Street in the city of Little Rock, Arkansas, from Markham Street to Twenty-second Street.

Appellee, Eugene M. Harrington, is a property owner m and treasurer of said improvement district and annex.

Appellants, Homer M. Adkins and J. E. Engstroum, are the' duly qualified and acting sheriff and ex-officio collector of taxes, and treasurer of Pulaski County, Arkansas, respectively.

A majority of the qualified electors of Pulaski County, Arkansas, at the regular general.election for' the year 1922, voted in favor of a road tax. The county court of Pulaski County, Arkansas, together with a majority of the justices of the peace of the county, at its annual meeting in the year 1922, levied a tax of three mills on the dollar on all property in Pulaski County, Arkansas, as a county road tax; this tax being levied under the authority given by Amendment No. 3 to the Constitution of Arkansas, which amendment was adopted on January 13, 1899.

After the formation of said street improvement district and annex thereto, the General Assembly of Arkansas for 1923 passed act No. 275, which act provides for the payment of the three-mill road tax levied on property within said Street Improvement District No. 340’ and South Broadway annex, to the treasurer of said street improvement .district. Said act also provides, in § 4, that compliance with any of the provisions of said act may be enforced by mandamus by any interested property-holder.

The act was passed for the purpose of assisting said improvement district and annex thereto in improving Broadway Street. In other words, the Legislature, by said act, authorized the three-mill road tax, collected on property within the borders of said improvement district and annex, to be used by said improvement district and .annex in.making and paying for said improvements.

Appellee, the treasurer of said improvement district, and also a property owner within the territory of said district, after the said three-mill road tax had been collected, demanded that Homer M. Adkins, as sheriff and tax collector of Pulaski County, and J. E. Engstroum, as treasurer of said county, deliver to him the amount of road tax collected on property in said improvement district, which they refused to do.

Appellee then instituted this action in the Pulaski .Circuit Court, Second Division, asking that a writ of mandamus issue, commanding appellants and each of them to pay over to him, as treasurer of Street Improvement District No. 340 and annex thereto, the three-mill road tax collected from property within said district and annex.

Appellants filed a demurrer to appellee’s petition for writ of mandamus, which demurrer contains two grounds.

First: That the petition did not state facts sufficient to justify the relief sought.

Second: That act No. 275, above referred to, on which said petition is based, is in conflict with § 28, article 7, and Amendment No. 3 to the Constitution of Arkansas.

The court below overruled the demurrer, and, appellants electing to stand upon their demurrer, and refusing to plead further, the court rendered a judgment in favor of appellee, and ordered that a writ of mandamus issue commanding appellants to pay over to appellee the funds in their respective hands which was collected on property included within the bounds of Street Improvement District No.- 340 and annex thereto, that is, the three-mill road tax collected within said territory.

From this judgment of the circuit court appellants have appealed.

There is no question as to the jurisdiction of the court if said act No. 275 above referred to is legal, so the only question in the case is whether or not act No. 275 is in conflict with the Constitution of Arkansas. If it is, the case should be reversed; if it is not, the case should be affirmed.

It is urged that this act is in conflict with § 28 of article 7 of the Constitution of Arkansas, which grants to county courts original exclusive jurisdiction in all matters relating to roads, the disbursement of moneys for county purposes, and in other cases that may be necessary to the internal improvement of the county. Long after the adoption of the Constitution of 1874 and the above mentioned section thereof, Amendment No. 3 to the Constitution was voted by the people of the State, and declared adopted on January 13, 1899. By the amendment it is provided that the county court shall [iave the power to levy a road tax not exceeding three mills, if a majority of the qualified electors of the county shall have voted therefor at the general election preceding such levy. In amendment No. 3 no provision is made as to what governmental agency shall receive or disburse the funds collected from such tax. It is only provided therein that such taxes, when collected, shall be used in the respective counties for the purpose of making and repairing public roads and bridges of the respective counties, and for no other purpose.

Unless inhibited by some constitutional provision, the State Legislature has full power over all matters of taxation -and the collection and disbursement of taxes, and may exercise absolute control over all revenues collected by subordinate branches of the State Grovernment.

The streets of a municipality are public roads of the county of which the municipality is a component part. Texarkana v. Edwards, 76 Ark. 22; Sanderson v. Texarkana, 103 Ark. 529; El Dorado v. Union County, 122 Ark. 184.

The State, in its sovereignty over all public highways, has full power over streets as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency as it may deem best the power of supervision and control over streets. We find that the Legislature that assembled after the adoption of the Constitution granted to municipal councils the power to lay out, open, establish, improve and keep in repair the streets within their corporate limits.

In the case of Sanderson v. Texarkana, 103 Ark., 534, the court,- in passing upon an act of the Legislature appropriating to the city of Texarkana a part of the three-mill road tax, used the following language:

“By virtue of the constitutional provision authorizing the organization of municipal corporations by the Legislature, and the immediate legislation had hereafter, the supervision over public highways or streets within cities and towns was confided to the authorities of the municipalities, and by the constitutional provision of § 28, article 7, and legislative enactments thereunder, jurisdiction over highways or roads in the county, outside of municipalities, was confided to the county court. Both the. streets in municipalities and the highways outside of them are public roads, and any money arising from taxation expended upon the one or the other is used for the purpose of making and repairing public roads within the meaning of the provision of said Amendment No. 5.” (Now called Amendment No. 3). .

And quotes the case of Texarkana v. Edwards, supra, as supporting this doctrine.. And in doing so the court further states in the Sanderson case:

“But it is urged that it was also held in that case that the road tax, when collected, is a county fund, and should be paid into the county treasury, and that the expenditure thereof is under the jurisdiction of the county court. It was, however, said in that case that such ruling was made only in view of the legislative enactments and the law as they then stood, and that, to avoid a conflicting jurisdiction between county, and .city officers, further legislation was required.”

The doctrine as above laid down is fully supported, not only by the case of Texarkana v. Edwards, but the case of Sanderson v. Texarkana, and of El Dorado v. Union County. This doctrine is so well settled by this court that we deem it unnecessary to cite other authorities or to say more on this point.

These cases also hold that the tax collected under Amendment No 2 is not a county fund in the sense that the entire tax belongs to the county and must be expended under the jurisdiction of the county court, and that, in the absence of any constitutional inhibition, the Legislature has full power, not only to apportion said road tax between the counties and municipalities, but also, as therein suggested, it has the power to direct what governmental organization shall handle the fund and have the right to expend that portion of the fund apportioned to it.

It is contended by appellants that, even if the Legislature had a right to apportion this road tax between cities and counties, it would not have the right to the distribution of any part of it to a local improvement district. This contention is in direct opposition to the decisions of this court, for this court holds, in the case of Whaley v. Northern Improvement District, 152 Ark. 573, that a local improvement district is a governmental agency. If it is a governmental agency, then the Legislature would have a right ,to direct distributions to it out of this fund, for the improvement of streets. This court has also held that the Legislature,, by virtue of its reserved authority, may select another agency than the city council to open highways through private property in incorporated towns and cities; in other words, that it may designate what improvement districts may do this. If so, it may order distribution to„ such improvement districts of funds which it can constitutionally distribute. Road Improvement District No. 1 v. McAlpin, 163 Ark. 602.

From the foregoing it is evident that act No. 275, under consideration herein, is in no way in conflict with § 28, article 7, of the Constitution of Arkansas, or Amendment No. 3, and, said act not being in conflict with the Constitution, and the improvement district being a governmental agency established by the laws of the State of Arkansas, we are of the opinion that said act No. '275 is legal and binding, and that the court below was correct in issuing its mandamus.

The judgment of the circuit court is therefore correct, and is affirmed.

Smith, J., disqualified.

Hart, J.,

(dissenting). Judge Wood and myself are of the opinion that the Legislature has no power to direct the payment of the three-mill road tax collected under Amendment No. 3 of the Constitution to a street or road improvement district. We think that the Legislature can only direct this tax to be paid under the direction of the county court to road or street improvement districts, except that in cities and towns the Legislature has the power to direct'whether the municipal council or the county court shall be the agency which shall have the jurisdiction and the right to expend the portion of the fund apportioned to the city, when collected, upon the streets of such municipality, as pointed out in Sanderson v. Texarkana, 103 Ark. 529, and El Dorado v. Union County, 122 Ark. 184.

The Constitution must be.construed as a whole, and, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. Little Rock v. North Little Rock, 72 Ark. 195. In that case it was contended that, inasmuch as the Constitution gave county courts exclusive original jurisdiction over the local concerns of the respective counties, the formation of cities and towns, or the change of their boundaries, was a local concern of which the county courts had exclusive jurisdiction.

The court held against this contention, and pointed out that the Constitution authorizes the creation of municipal corporations and permits the Legislature to confer upon such bodies jurisdiction over the local concerns of such municipality. Hence the court held that the local concerns over which the county court is given exclusive jurisdiction are those which relate especially to county affairs, such as public roads, bridges, ferries, and other matters of the kind mentioned in art. 7, § 28, of the Constitution.

Therefore when a municipal corporation is created with the rights, powers, and duties of a political governmental subdivision, it is but reasonable to conclude that it was intended that the Legislature might give such municipality jurisdiction over its streets, and not thereby interfere with the general jurisdiction over roads given to the county court under the Constitution. The reason is obvious. Jurisdiction over the streets peculiarly pertains to municipal corporations. In allowing the Legislature to create cities and towns, the framers of the Constitution must be deemed to have done so with the knowledge of the general principles which apply to such political subdivisions, and with the expectation that they shall exercise the usual jurisdiction of said subdivisions.

The object of incorporating towns- or cities is to invest the inhabitants thereof with all matters of special municipal concern, and the streets are as much of special and local concern as anything connected with a town or city can well be. The reason is that sewer mains, water pipes, gas pipes, and the pipes of other public service corporations must be laid in the streets of the city, and, if the city council did no.t have jurisdiction over its streets, it could not well carry out the purposes for which it was created.

Therefore when the provisions of the Constitution are read together in the light of the object sought to be accomplished, it seems reasonable that it was intended that the Legislature might give cities and towns exclusive jurisdiction over their streets when it was deemed for the best interest of the inhabitants to do so, and that this would not interfere with the jurisdiction over roads vested in the county courts in another section of the Constitution.

It by no means follows, however, that the framers. of the Constitution intended that the jurisdiction com ferred upon the county courts over roads should be given to any agency which the Legislature might see fit to create. We think that the principles which we have tried to emphasize have been recognized in the cases cited in the majority opinion, and, with all due respect, think the result of the majority opinion is to misapply the principles laid down in the cases cited therein.

If the Legislature has the power to direct the payment of the road tax to street improvement districts, it might also direct the payment of said road tax to road improvement districts, and thus the exclusive jurisdiction over roads given to the county courts by the Constitution could be taken away by the Legislature.


author: Smith, J.

text:
    Perryman v. Abston, Wynne & Company.
    Opinion delivered May 12, 1924.
    1. Bills and notes — fraud—evidence.—Evidence held to show that a note given by a landlord to secure advances made to his tenant was not procured by the payee’s fraud.
    2. Appeal and error — objection not raised below.— Objection that an attachment should not have been sustained because the jurat to the affidavit therefor was not signed cannot be raised on appeal for the first time.
    3. Mortgages — conversion of property by mortgagee. — Where mortgagees took possession of mortgaged chattels, but failed to sell them under the power of sale in the mortgage, they are chargeable with their market value at the time of their conversion.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      W. J. Lanier, for appellants.
    Any act or omission of duty on the part of the creditor, which is injurious to the surety, may be set up as a defense by the latter, in a suit brought against him in equity. 6 Ark. 317; 1 Story, Eq. Jur., 5th ed., § 324; 2 Pomeroy, Eq. Jur., 3d ed. §§ 907-912;. 34 Ark. 44; 5 Ark. 284; 8 Ark. 74; Id. 141; 20- Ark. 309; 31 Ark. 657; 48 Ark. 426; 69 Ark. 126. Plaintiff was trustee of all property in its possession for the indemnity of the surety, and could neither convert it to its own use nor sell it to itself. 27 Am. & Eng. Enc. of L., 2d ed. 516; 34 Am. Dec. 757; 69 Am. Dec. 66; 19 Am. Dec. 311; 51 Id. 122; 41 Id. 685; 98 Id. 49. The surety was entitled to credits for all payments by the principal, and any defense the latter might make on account of payments to the creditor could be made by the surety. The liability of the surety cannot exceed that of the principal. 32 Cyc. 116; 21 R. C. L. 974,1085; 50 Am. St. Rep. 75; 2 L. R. A. (N. S.) 232; 43 Am. Dec. 480. And the extent of the surety’s liability is strictly limited to that assumed by the terms of his contract. 32 Cyc. 109; Id. 73; 21 R. C. L. 975, 976; 6 IT. S. (L. ed.) 189; 38 Am. Dec. 310; 68 Minn. 193; 64 Am. St. Rep. 460; 61 Barb. 552; 174 Mass. 277; 171 Pa. St. 632. .

      Mann & Maim, for appellees.
    1. It is too late to seek to take advantage of the failure of the officer to sign the jurat to the affidavit for the first time on appeal. 47 Ark. 49; 37 Ark. 206.
    2. Albin having admitted the execution of the note sued on, the burden of proving the alleged fraud was on him. 78 Ark. 87. It is a defense which must be proved, and that proof must not only preponderate, but it must also clearly show that a fraud1 was practiced upon the person alleging it, and that he relied upon the representations to his injury. 14 Ark. 79; 92 Ark. 509; 12 R. C. L. Í72,173; 144 Ark. 97; 63 Ark. 16; 126 Ky. 749; 12 R. C. L. 427; 199 N. T. 314. One cannot take advantage of his own negligence and carelessness and then claim fraud. 46 Ark. 347; 11 Ark. 66; 31 Ark. 170; 101 Ark. 603.
    3. Albin having placed his name in blank on the back of the note at the time it was made, in order to give Perryman credit with the payee, became a joint maker of the note, and was not entitled to presentment, demand or notice of nonpayment and protest. 40 Ark. 545; 77 Ark. 53; 116 Ark. 420.
   Smith, J.

This suit was brought by appellees in the circuit court of St. Francis County to enforce the payment of a note signed by Perryman and Albin. Albin resided in Springfield, Illinois, and service against him was by attachment, the writ of attachment having been levied on a tract of land owned by Albin in St. Francis County. Personal service was had on Perryman. Albin and Perryman filed an answer, alleging that the signature of Albin to the note had been procured by fraud, and that there were certain credits upon the note which had not been allowed, and there was a prayer that the cause be transferred to equity, and that an accounting be had and that the note be canceled. The cause was transferred to equity, and a decree was rendered sustaining the attachment, and judgment was rendered against both Albin and Perryman for the amount of the note, with interest, and they have appealed.

A portion of the land owned by Albin was in' cultivation, and Perryman, who had rented it for the year 1919, had contracted to rent it for the year 1920 at $20 per acre. He applied to appellees, who are commission merchants in the city of Memphis, for assistance to make a crop, and, according to his version of . the matter, advances amounting to $1,600 were promised him, on the condition only that Albin waive his lien as landlord.

Perryman testified that he and Albin went to the office of appellees to close the contract for advances, and that Albin was asked only to waive his lien as landlord and' to indorse to appellees the rent notes he had taken from Perryman. Albin did not have these notes, two in number, with him' at the time, but he stated that he could have them present in a short time, and that he Avent to the home of E. C. Cheney,'where he was stopping, for the notes, and that, when he returned with the notes, Cheney accompanied him. Albin, Perryman and Cheney all testified that the note sued on was signed by Albin under the following circumstances: ’ There was indorsed on the rent notes from Perryman to Albin authority to appellees to collect the rent and to apply it to the payment of appellee’s debt, reading as follows: “I hereby appoint Abston, Wynne & Company my agents to collect the within rent note, and agree that they may apply all collected to the payment of any debt or debts that Grant Perryman or myself may owe them. (Signed) C. E. Albin.” W. J. Abston, a member of the firm of Abston, Wynne & Company (appellees), had eharg’e of the matter for his firm, and he had dictated the indorsement which was to be written on the Perryman notes, but he had left the office and was not present when Albin returned. The indorsement which had been dictated was typewritten on the notes by the stenographer in the office, and Albin signed both indorsements, and, after he had signed the indorsement .on each of these notes, he was presented with a third note to be signed. Albin stated that he read the instrument and remarked to Mr. Crook, appellees’ bookkeeper, Avho was in charge of the office at the time, that the instrument appeared to him to be a note, but he was assured by Crook that the writing was a contract agreeing that appellees should be first paid. Albin handed the writing to Cheney, who was unable to read it on account of the indistinct light, but he stated to Albin that he could safely rely on the statement of Crook that the writing was what Crook represented it to be, and Albin, thus reassured, signed the writing. This writing is the note sued on, it being an ordinary promissory note, which was signed by Perryman and indorsed by Albin.

Abston and Crook testified that appellees agreed to furnish Perryman $1,600 to make the crop, but upon the condition only that Albin waive his lien and sign Perry-man’s note, and that .Albin agreed to do this, and that, all the details-having been agreed upon, Abston left the office in charge of his bookkeeper, who secured the signatures of Albin to Perryman’s note and the indorsement of Albin on Perryman’s rent notes.

The note sued on was in fact for $1,691, but it was discounted and the proceeds thereof, amounting to $1,600, .were placed to Perryman’s credit, and advances equaling that sum were made Perryman by the time the crop was ready to be picked.

On October 28, 1920, appellees wrote Albin the following letter: “We are writing you■ with reference to Grant Perryman, and your place over in Arkansas, in which you have turned us over the rent notes and become security for the account. We understand he has a good crop, but has no hands much to gather it. We would suggest that it is very dangerous indeed to not have somebody to look after this crop. As you know, darkeys are not very particular to gather crops if they think there is not much in it for them, and it could dwindle away and not be applied on the indebtedness. You have got a good deal at stake, and we should think it would pay you to drop everything and come here and see to the gathering and1 marketing of this crop, as he will make probably from 15 to 20 bales, and, if he does not gather the cotton, of course you have the debt to pay. So we would advise you to come immediately and look after the matter.” Albín admitted receiving this letter, and, soon thereafter, left his home and went to his farm, and on his way there stopped in Memphis and called on appellees, but he did not at that time question Ms liability on the note sued on, and appears to have done so for the first time after the institution of this suit.

The chancellor found that the execution of the note sued on had not been procured by fraud, and we think that finding is not clearly against the preponderance of the evidence, and it must therefore be affirmed.

The court rendered judgment for the balance due on the note, and sustained the attachment and directed that the attached property be sold if the judgment was not paid.

It is urged that the attachment should not have been sustained for the reason that the affidavit therefor was not sworn to. It appears that the affidavit was signed by the attorney who made it, and his signature is followed by the jurat of the clerk, which, however, was not signed by the clerk.

TMs objection is made here for the first time, and therefore comes too late. Fletcher v. Menken, 37 Ark. 206; Sannoner v. Jacobson, 47 Ark. 31; Bitteck v. State, 67 Ark. 131. Had attention to the defect been called in the court below, it would no doubt have been amended, as it might have been. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49; Kansas City So. Ry. Co. v. State, 98 Ark. 179.

Several items on appellee’s account are questioned; for instance, it is shown that appellees sold Perryman two mules, and that $50 was added to the cost of each of them. It appears, however, that appellees were not acting as Perryman’s agents in the purchase of these mules, but the transaction was a sale of the mules for the sum of $632, and on May 25, 1920, a statement of the account to that date was furnished Perryman, showing the charge of this item, and its correctness was not challenged.

Credit is also claimed for cotton which Perryman testified he shipped to appellees and not accounted for; but we are of tbe opinion that the finding of the chancellor that credit was given for all the cotton received is not clearly against the preponderance of the evidence. ■

About a month after the institution of this suit appellees sent their representatives to the farm, and took charge of all personal property described in the mortgage which Perryman had executed to appellees to secure the note sued on. This property included the two mules sold to Perryman for $632 and another mule and a horse, and also all of Perryman’s farming implements, a wagon and some hay. Three witnesses testified that the property as so taken over at that time was worth $600', and two of these witnesses stated they would have given that sum for it, and one of them testified that he offered Abston $600 for the property, but the offer was declined. Abston stated at the time that he needed this property on his farm in Mississippi, and he would ship it there, and this he did. This was done, notwithstanding the. mortgage provided that the property should be sold at public sale in St. Francis County, where the farm was situated, upon default in paying the debt there secured.

About thirty days after the property had been converted by appellees, Perryman executed a bill of sale therefor to appellees for the recited consideration of $300, and credit for that amount was given. Appellee’s agent, who secured the execution of this bill of sale, testified that it was considered that Perryman had then no real interest in the property, as it was wholly insufficient to pay his debt. Appellees 'knew that Albin was only a surety for Perryman, and that it was at all times their intention to hold Albin for whatever balance might be due on final settlement, and they also knew there would be a balance, and, if Albin had paid this balance, he would have been entitled to be subrogated to the security held by appellees. Under these circumstances we think appellees should have sold the property publicly, under the power of sale in the mortgage, after advertisement, as there provided, and, having 'failed to do so, should be charged with the market value of the property at the time of its conversion, which the testimony shows was $600. Hudson v. Burton, 158 Ark. 619; Jones v. Horn, 51 Ark. 19. The judgment should therefore be reduced to the extent of $300, and it is ordered that this be done, and the decree-will be modified to allow this credit.


author: Hart, J.,

text:
    Hoggard v. Mitchell.
    Opinion delivered May 12, 1924.
    1. Limitation op actions — action by married woman. — An action by a married woman to recover land is barred, under Crawford & Moses’ Digest, § 6942, by lapse of more than seven years after her cause of action accrued, if she failed to bring her suit within one year after passage of the act of February 20, 1919, p. 90.
    2. Limitation op actions — action by heirs op married woman.— Where a married woman died prior to the passage of the act of February 20, 1919, removing the disability of coverture, an action by her heirs to recover land which had been held adversely to her-for more than 7 years was barred by the lapse of three years from her death, under Kirby’s Dig., § 5056.
    3. Limitation op actions — tacking disabilities. — Where, after death of a married woman during coverture, the three-year period after discoverture, allowed by Kirby’s Digest, § 5056, for married women to sue for land, has elapsed, her heirs cannot prolong the suspension of this statute by tacking the disability of their minority to the disability of her coverture.
    Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellees brought this suit in equity against appellant to quiet their title in the land described in their complaint, and to recover possession thereof.
    Appellant answered, denying title in appellees, and claiming title in himself by adverse possession.
    It appears from the record that on the 28th day of November,' 1904, Sandy Foy died intestate in Union County, Arkansas, owning'the land in controversy, and leaving surviving him his widow, Laura Foy, and his children, Pattie Dome, Georgia Mitchell and Lena Moore, as his sole heirs-at-law. Shortly after the d.eath of Sandy Foy in 1904, iWilliam McGraw employed' R. S. Bowers, a lawyer, to draw a deed for him to said land, with the widow and heirs-at-law of Sandy Foy as grantors and Raiford Madison as grantee. McGraw, Bowers, and the Foys were all negroes. The deed contained the signatures of the widow and children of Sandy Foy above named. Bowers carried the deed to the home of the widow, and took the acknowledgment of the widow and of Georgia Mitchell to the deed. In a few days thereafter Bowers met Lena Moore and Pattie Dome on the street, and asked to take their acknowledgments to. the deed. They denied that they had signed the deed, and refused to acknowledge it. Laura Foy died in December, 1904, soon after she executed the deed. Pattie Dome died intestate without issue in 1912. Lena Moore died intestate in 1916, leaving surviving her Fay McKissic and several other minor children, who are plaintiffs in this case. The present suit was commenced June 7, 1922.
    According to the testimony of R. S. Bowers, he was familiar with the signature of Pattie Dome, and her purported signature to the deed in question was her genuine signature.
    Georgia Mitchell was a witness for the plaintiffs. She denied that she signed or acknowledged the deed in question. She also testified that the purported signatures of Pattie Dome and Lena Moore to the deed in question were not their genuine signatures.
    David Moore, the husband of Lena Moore, testified that he was familiar with the signatures of Lena Moore and Pattie Dome, and that their purported signatures to the deed in question were not their genuine signatures. Appellant and his grantor have been in possession of the land ever since the execution of the deed in question, as testified to above. Other facts will be stated or referred to in the opinion.

      The chancellor found that Georgia Mitchell and Lena Moore inherited the interest of Pattie Dome in said land when she died; that Georgia Mitchell was barred of any recovery in said land by the statute of limitations, and that the children and heirs-at-law of Lena Moore were not barred by the statute of limitations and were entitled to recover from the defendant an undivided one-half interest in said land. This included the one-third interest which their mother inherited from her father and one-half of the one-third interest which their mother, Lena Moore, inherited from her sister, Pattie Dome.
    A decree was entered in their favor in accordance with the finding of the chancellor, and the case is here on appeal.

      Flenniken & Sellers, for appellant.
    The deed in question was good between the parties and their heirs and the grantee and his successors in title. 121 Ark. 498; 14 Ark. 286; 29 Ark. 548; 30 Ark. 110; 44 Ark. 520; 61 Ark. 527; 1 E. C. L. 257. The fact of the possession of the deed by appellant, the recording of same, the payment of taxes by appellant for 17 years, creates the presumption that the deed is genuine. ‘121 Ark. 498. Possession of the deed raises a presumption of delivery that can be overcome only by evidence 'Clear' and convincing.' 82 Ark. 492. Eecording the deed raised a prima facie presumption of its delivery. 132 Ark;4.63 ; 61 Ark. 104. Delivery to a third party for the ¡gránteeds-delivery. 121 Ark. 328; 123 Ark. 601; 82 Ark. •■47... Appellees were barred by limitations. C. & M. Dig. .-.6942; '5 S/ W. 329;. 16 Ark. 154; 46 Ark. 438; 115 Ark. 1. Appellees are barred by laches. See 85 Ark. 85; 101 •Ark.230; 8.3. Ark. 385; 75 Ark. 312; 103 Ark. 58; 95 Ark. '178; 101 Ark. 230 ; 55 Ark. 85.

      rArthur p.- -Chavis, for appellee.
    • Where.- the- statute ■ prescribes a method of -convey.-.ance, that.-method- must-be followed -to make the Gon,-veyanee- -valid. -140 Ark. 212. - The only evidence on ■ which-, a deed -can be admitted to record is the certificate of acknowledgment by the proper officer. -25 Ark. 365; 123 Ark. 473.' Question of whether a deed has been delivered is largely one of intention on part of grantor. 140 Ark. 579; 142 Ark. 311. Delivery of a deed conveying real property is essential to its validity. 24 Ark. 244; 77 Ark. 89; 84 Ark. 610. There must be an intention to deliver. 113 Ark. 289. The deed in question was not delivered. See 55 Ark. 633; 98 Ark. 466; 100 Ark. 427; 116 Ark. 142; 126 Ark. 182. A deed which is void in part because of fraud will be void as to the whole. 13 Cyc. 581. The deed should be delivered' during the lifetime of the grantors. 24 Ark. 244; 51 Ark. 530. On the question of laches, see the following authorities: 60 Ark. 50; 22 Ark. 1; 83 Ark. 495; 103 Ark. 251; 52 Ark. 502; 42 Ark. 491; 33 Ark. 490; 55 Ark. 85. The equitable' doctrine of laches is applied only when the party guilty of laches is asking the court of equity for relief.. See 96 Ark. 540; 100 Ark. 399; 70 Ark. 371; 67 Ark. 320; 61 Ark. 527; 89 Ark. 19; 88 Ark. 478. Laches will'not be imputed to a minor until the period of limitations has expired after he has reached his majority. 135 Ark. 205. The right of a married woman to assert her claim in land's of her deceased father, held not barred by laches. 134 Ark. 183. See also 142 Ark. 320; 150 Ark. 594.
   Hart, J.,

(after stating the facts). The chancellor properly held that Georgia Mitchell was barred by the statute of limitations. She was a married woman at the time of the execution of the deed by her mother to Baiford Madison, in December, 1904, and remained'' so until this suit was commenced on the 7th day of June, 1922.

Section 6942 of Crawford & Moses’ Digest,' which is § 5056 of Kirby’s Digest, as amended by the Legislature of 1919, contains a proviso that any feme covert who has a cause of action for the recovery of land upon which she might sue or maintain an action, may bring suit and maintain her action within one year from the passage of the act of 1919.

Pattie Dome died in 1912, and her mother died in December, 1904. During all this’ time, up to the bringing of the present action, appellant and his grantor were in possession of the land in suit. After the death of her mother, Georgia Mitchell had a right to sue for the interest in the lands which she had inherited from her father, and, after the death of her sister, Pattie Dome, she had a right to maintain an action for the interest which she inherited from her. She waited more than one year after the passage of the act of 1919 above referred to before she brought this action. Therefore the chancellor properly held that she was barred of recovery in the land by the statute of limitations.

The chancellor held that the minor children of Lena Moore were entitled to recover her interest in the land, and in this respect we think the chancellor erred. Lena Moore was a married woman at the time her mother executed the deed in 1904, and she remained so after the death of her mother until her own death on January 26, 1916. She died intestate, and left surviving her several minor children as her sole heirs-at-law. At the date of her death, § 5056 of Kirby’s Digest was the statute in force with respect to actions to recover land. Under its provisions a feme covert had three years next after discoverture. within which to bring an action to recover her interest in land. The statute in question contains a saving clause against cumulative disabilities. The disability of coverture-of Lena Moore first occurred, and the three years given her under the statute to bring suit after discoverture did not commence during her coverture; but, when she died, it commenced running against appellees, who were plaintiffs in the court below. The fact that they were minors at the time their mother died did not prevent the running of the statute. They cannot tack their disability to that of their mother in order to suspend or continue the suspension of the operation of the statute. Dowell v. Tucker, 46 Ark. 438, and Freer v. Less, 159 Ark. 509, and cases cited.

Pattie Dome died in 1912 and Lena Moore in 1916. The present suit was not commenced until June 7, 1922. What we have said with regard to the running of the statute of limitations applies -with, the same force to the interest inherited by Lena Moore from her sister, Pattie Dome, as well as to the interest which she inherited from her father. More than .three years elapsed after her death before her childen instituted this action. Under the statute they could not tack the disability of their minority to the disability of coverture of their mother. Therefore they were barfed by the statute of limitations from any recovery in this case, and the chancellor should have so held.

It follows that the decree must be reversed, and the cause will be remanded with 'directions to dismiss the complaint for want of equity.


author: ■Smith, J.

text:
    Johnson v. American Bank of Commerce & Trust Co.
    Opinion delivered May 12, 1924.
    1. Bills and notes — discharge of note. — Where a note was renewed from time to time, and the original note was surrendered only when a renewal note was delivered, Crawford & Moses’ Dig., § 7885, subd. 5, providing that the note is discharged when the principal debtor becomes a holder at or after maturity, has no application.
    2. Bills and notes — burden of proof. — Where the original note was renewed from time to time, and the payee always had an uncanceled note which evidenced the balance due, Crawford & Moses’ Dig., § 7889, providing .that, where a note or signature thereon appears to have been canceled, the burden of proof is on the party who alleges that the cancellation was unintentional, or under mistake, or without authority, was not applicable.
    3. Bills and notes — authority to sign note — evidence.— Evidence held to sustain a finding that one of the original makers of a note signed the name of one of his co-makers to a renewal note with authority.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Minor Pipkin, for appellant.
    It is provided that a negotiable instrument is discharged when the principal debtor becomes the holder thereof at or after maturity in his own right. C. & M. Digest, § 7885, subdv. 5. And the burden of proving an unintentional cancellation, or cancellation by mistake, rests on the party alleging it. Here there is neither allegation nor proof to that effect. C. & M. Digest, § 7889.

      Norwood é Alley, for appellee.
    If the appellant signed' the original note, and it was surrendered upon the acceptance of a renewal note, he is liable for the balance due on the original note, even though his signature to the new note was not authorized. 96 Ark. 268; 106 Ark. 157.
   ■Smith, J.

On January 16, 1920, L. H. Johnson executed to appellee his note for $3,000, and the- names of G. H. Johnson and F. L. Johnson, who are brothers of L. H. Johnson, were also signed to the note as joint makers, although, as between the Johnsons, L. H. Johnson was the principal and his brothers were sureties. The note was renewed from time to time, payments being made at each renewal, until on October 3, 1921, the date of the last renewal, only a thousand dollars remained unpaid, and a note was executed for that amount. This note was signed by the three Johnsons as apparent joint makers, and, not being paid or renewed at maturity, this suit was brought to enforce payment.

The original loan from appellee was made by J. D. Covey, a vice-president of the bank, who acted for it in making the original loan and the various renewals, and he testified that he had no intimation that the note had not been signed by the three Johnsons, as it purported to be. All the transactions in regard thereto were by mail.

L. H. Johnson admitted his liability, and judgment was rendered against him by default, but his brothers defended upon the ground that the signing of their names was a forgery, and that they had not signed the original note or any of the renewals, and had not authorized any one to sign their names.

L. H. Johnson testified that he and his brothers had all signed the original note, but that he alone had signed the renewals, and that he had signed the names of his brothers to the note sued on and to the other renewal notes, bnt he thought he had the authority so to do. He testified that he was cashier of the bank at which he and his brother Gr. H. Johnson carried a partnership account, that he had charge of the partnership business, and in the conduct thereof signed the name of his brother Gr. H. Johnson to numerous notes and checks relating to this business, and that he had authority to do this, but he admitted that the loan evidenced by the original note and the renewals thereof was his private business, and not a partnership affair.

At the request of the plaintiff, and over the objection of the defendants, the court instructed the jury that, if Gr. H. Johnson or F. L. Johnson executed the note for $3,000, and if there remains due thereon the sum of a thousand dollars, to find for the plaintiff, and further, to find for the plaintiff unless they believed, from all the evidence and circumstances, that the defendants did not sign the note or authorize L. H. Johnson to sign their names to it. These propositions were covered by instructions numbered 1 and 2.

At the request of G-. IT. Johnson the court instructed the jury as follows: “1. Unless you find from a preponderance of the evidence that G. H. Johnson signed his name to the original note sued on herein, then you will find for said defendant, G. H. Johnson.”

The court also instructed the jury,' in an instruction numbered 3, that, even though they should find-that G. H. Johnson' did not sign the original note, yet, if they should also find that he signed as a surety, and this fact was known to plaintiff, or its agent, and that said note was renewed from time to time, without his signature being placed on the last renewal note by him or with his authority, and that the renewal was without his consent, to find for him. Similar instructions were given in regard to F. L. Johnson at his request.

The jury returned a verdict against Gr. H. Johnson, but in favor of F. L. Johnson, and Gr. H. Johnson has appealed. The bank has not appealed from .the judgment in favor of F.- L. Johnson.

According to' the testimony of L. H. Johnson, he and his brothers all signed the original note, and his testimony was evidently credited by the jury, otherwise, under the instruction, the verdict would have been for both defendants.

Appellant cites § 7885, subdivision 5, C. & M. Digest, as discharging him from liability on the note, which reads as follows: “A negotiable instrument is discharged: # * * (5) When the principal debtor becomes the holder of the instrument at or after maturity, in his own right.” The language quoted has no application to the facts of this case. The Johnsons did not become the holders of the note within the meaning of this statute. The original note was only surrendered when the renewal note was delivered in lieu of it. The bank was at all times in possession of the note which evidenced the then existing indebtedness.

Appellant also cites § 7889, C. & M. Digest, as discharging him, which provides that, where an instrument or any signature thereon appears to have been canceled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without -authority. This section has no application to the facts of this casé, 'because, as we have said, there was always an uncanceled note which evidenced .the balance due at any given time.

■ We think the instructions fairly submitted the issues "to the jury., The instructions told the jury to find for both Gt. H. and- F. L. Johnson, unless the jury found, from a preponderance - of the evidence, that' they had signed the note, and L. H. Johnson testified that they had done so. The jury had the right to accept this testimony, and the verdict is conclusive of that question. 'Both Gr. H. and F. L. Johnson knew that the note had matured and that they had paid nothing on it, and we think the jury was warranted in finding that they knew that renewals were being made by the execution of notes to which their names were signed. This is true at least as to Gr. H. Johnson, and the jury’s verdict was in favor of F. L. The three brothers were closely associated in the operation of a bank. L. H. Johnson was the cashier, Gr. H. was the president, and F. L. was a stockholder. Gr. H. Johnson admitted that, with his knowledge and permission, L. IT. Johnson had signed his name to numerous notes, representing thousands of dollars, and we think the jury had the right to draw the inference that, if L. H. Johnson had the right to sign Gr. H. Johnson’s name to notes in new transactions, involving thousands of dollars, he had the right to sign his name in renewal of a note which Gr. H. Johnson had himself signed.

Appellant insists that instruction numbered 1 was erroneous in that it ignored the evidence concerning the cancellation of the original note and the presumption that it was thereby discharged. But this defense was presented in instruction numbered 3, given at the request of appellant. In that instruction the jury was told, if they believed that G. H. Johnson was a'surety on the note, and that it was renewed from time to time without his signature being placed on the last renewal note by him, or with his authority, to find for appellant. - The instruction was given as asked, and there was no request that instruction numbered 1, given at the request of appellee, be modified to express the same declaration of law. It was appellee’s theory that all three brothers had signed all the notes, or had authorized the signing of their names, and the case was tried on that theory; but the court gave the instruction requested by appellant, which declared the law applicable to his theory, and, if it was thought to' be in conflict with the instruction given at appellant’s request, that fact should have been pointed out specifically.

Appellant contends that instruction numbered 2 was erroneous in assuming that there was any evidence that G. H. Johnson signed the last note or authorized L. H. Johnson to sign it. We think, however, the question of fact was not assumed, but was submitted to the jury, and that, when read in connection with appellant’s instruction numbered 3, the jury was told to find for defendant Gr. H. Johnson, unless he signed the note or authorized L. H. Johnson to do so.

The instructions were not abstract, as the testimony of Covey and L. H. Johnson warranted them. If any one of the renewal notes was a forgery, there was a failure of consideration for the surrender of the note for which the forged note was substituted, and Gr. H. Johnson, .as a business man and as a banker, must have known that in some way L. H. Johnson was having the paper carried as bankable paper, and we think, from all the testimony, the jury was warranted in finding that Gr. H. Johnson knew this was being done by renewals of the note. Griffin v. Long, 96 Ark. 268; Hamiter v. State Natl. Bk., 106 Ark. 157; King v. Bank of Pangburn, 150 Ark. 138.

It is finally objected that instruction numbered 2, given at appellee’s request, permitted the jury to make their finding from the facts or circumstances in the case. The instruction, however, does not read that way. The jury was told to base their verdict upon the facts and circumstances, which was, of course, proper, as the jury had the right to consider all the facts and circumstances developed by the testimony.

No error appears, and the judgment is affirmed.