text:
    Gould-Galbraith Supply Company v. Triplett.
    Opinion delivered December 22, 1924.
    1. Landlord and tenant- — priority of landlord’s lien. — Under a rent contract with option to purchase, the owner of the land has a landlord’s lien on crops grown thereon which may be enforced against one who furnished supplies to the tenant and who- has received the crop with notice of such lien.
    2. Landlord and tenant — notice of lien. — Where one who furnished supplies to a tenant purchased his crop without making inquiry as to whether there was a landlord’s lien thereon, he could not claim to be an innocent purchaser if inquiry would have advised him of that fact.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Harry T. Wooldridge, for appellant.
    A purchaser of cotton is not liable for landlord’s lien unless he is possessed of facts sufficient to put him on inquiry, which, if pursued with reasonable diligence, would result in the disclosure of the landlord’s lien. 158 Ark. 432. Mere knowledge of the land upon which the cotton is raised is not sufficient to charge the purchaser with knowledge of a landlord’s lien. 158 Ark. 432. In addition to the satisfaction of the account, appellant actually parted with something of value, and the case at 69 Ark. 306 relied on by appellee in the trial court is not decisive of the question.

      A. F. Triplett, for appellee.
    Under a rent contract with option to purchase, the vendor has a landlord’s lien upon the crops grown upon the premises. 156 Ark. 387; 95 Ark. 32; 154 Ark. 612. The cancellation of a debt is not a payment of value if there be.a landlord’s lien on the crop raised. 69 Ark. 306. It was appellant’s .duty to investigate the title, and, having failed to do so, is chargeable with all facts which such investigation would disclose. 103 Ark. 91; 56 Ark. 473; 158 Ark. 432. See also 89 A. S. R. 373; 153 Ark. 599.
   Wood, J.

This is an action by the appellee against the appellant, in the Jefferson Chancery Court, to enforce a landlord’s lien. Appellant is an Arkansas corporation with its principal place of business at Pine Bluff, Arkansas. It is engaged in the business of furnishing supplies to farmers, tenants, sharecroppers, etc., and also in the business of buying and selling cotton and corn. Appellant has done a general furnishing business in the southwestern part of Jefferson County for some years. In the year 1922 Dave Drake was a negro tenant, raising a cotton crop on a certain parcel of land in Jefferson County, and the appellant furnished him the supplies for that year, which, with appellant’s account brought forward from the previous year, amounted to the sum of $583.67. On the 11th of October, 1922, Drake delivered to appellant five bales of cotton grown upon the lands mentioned. On January 15, 1923, appellant disposed of the cotton and, at the direction of Drake, applied $583.67 of the proceeds of such sale to the payment of Drake’s account with appellant, and paid to Drake in cash the remainder of such proceeds, amounting to $19.45.

The appellee alleged that he was the owner of the lands on which the cotton mentioned was grown, and that Drake was his tenant under a written contract of lease; that Drake had not paid the rent for the year 1922, and that appellant had converted the proceeds of the cotton mentioned to its own use with notice of appellee’s lien for rents, and prayed that appellant be required to account to him for such proceeds. The appellant denied generally the allegations of the complaint, and specifically that it had taken the cotton produced by Drake on appellee’s land during the year 1922 and converted the same to its own use with notice that appellee was claiming a landlord’s lien thereon for the year 1922.

The testimony for the appellee tended to prove that the appellee entered into a written contract with Drake in' 1919, which contract provided for a cash payment and yearly rentals, and an option to purchase the same upon the payment of these rentals. Notes were given evidencing the amount to be paid for the rent of each year. The rent for the year 1922 was due on November 1, but was not paid. It was the custom of appellee’s agent to furnish to the mercantile firms who supplied tenants on appellee’s farm a list of those tenants. He furnished such a list to the appellant, and collected from the appellant all the rents due from tenants on all the lands except Dave Drake’s. Appellant had paid the rents due appellee from another tenant under a similar contract of that of appellee with Drake. Appellee’s agent did not indicate to the appellant that appellee would not insist upon his right to collect the rent from Drake for the year 1922. But, on the contrary, appellee’s agent had frequent conversations with appellant’s agent concerning the rent, extending from September until the institution of this action, and he notified the appellant’s agent that Drake owed the appellee the- rent for the land for the year 1922.

The testimony on behalf of the appellant tended to show that it was the custom of appellant to indicate on its ledger sheets the printed word “landlord” opposite the name of the owner of the land whose tenants appellant was furnishing, together with the number of acres the tenant had in cultivation and the rent he was to pay. On the ledger sheets of Drake’s account it is shown that he owned 80 acres of land, and that 50 acres were in cultivation in the year 1922, 35 acres being planted in cotton.

Appellant took a chattel mortgage to secure its account for the supplies furnished Drake for the year 1922. In the fall of 1922 Drake delivered to appellant five bales of cotton, for which appellant allowed him twenty-four cents per pound, amounting in the aggregate to $603.12, and deducted from such proceeds Drake’s account, and paid him the balance in cash, the sum of $19.45. At that time, no one representing the appellee had notified -appellant that -appellee claimed a landlord’s lien for the rent for the year 1922. The first knowledge that appellant had that appellee claimed rent on the land cultivated by Drake for the year 1922 was October 11 of that year, the date when Drake delivered the cotton to the appellant, and in all the dealings that appellant had with Drake from February, 1921, until October 1, 1922, appellee’s name was never mentioned, and was not mentioned until this controversy came up. Appellant’s agent didn’t make any investigation of appellee’s ownership of the land, .because Drake told him that he owned the place, and also 'Caldwell informed appellant’s agent that he had sold the place to Drake. Appellant did not sell the five bales of cotton obtained from Drake until January 15, 1923. Before that time the controversy between the appellee’s agent and the appellant’s agent concerning- the five bales of cotton had arisen. Appellee’s agent and appellant’s agent had repeated conversations concerning the same, and appellee’s agent had written appellant’s agent a letter' claiming the proceeds of the cotton in appellant’s hands.

The testimony on behalf of the appellee and appellant is voluminous, but the above sufficiently presents their respective contentions.

The trial court found that the appellant had no actual notice of appellee’s ownership of the land on which the cotton was grown, but it knew the land, and the record of deeds showed that the ownership of that land was in the appellee, and that therefore appellant had constructive notice of appellee’s right to the cotton grown by Drake in the year 1922. The court thereupon rendered a judgment in favor of the appellee in the sum of $603.12, and declared the same a lien upon the proceeds of the cotton in the hands of the appellant, and directed the appellant, as trustee, to account to the appellee for same. From that decree is this appeal.

Under a rent, contract with option to purchase, such as that under review here, the owner of the land has a landlord’s lien upon the crops grown upon said land, which lien is superior to the lien of one who furnishes supplies to the tenant for the making of crops, and can be enforced against one who has furnished such supplies and who has received the crops of the tenant with notice of such lien. Solomon v. Kesee, 156 Ark. 387; Martin v. Allen, 154 Ark. 612; Murphy v. Myar, 95 Ark. 32; Judge v. Curtis, 72 Ark. 132. In the last case we said: “Where the plaintiff has a lien on the property taken and sold by the conversioner, as in the case at bar, his remedy is in equity, not for the value of the property taken, for he is not, in that ease, the owner thereof, but to fix his lien upon the proceeds of the property in the hands of the conversioner, it being an equitable doctrine that a lieu may be fixed upon the proceeds of the property where the lien on the property itself has been destroyed by the wrongdoer.’’ See also Beavis v. Barnes, 36 Ark. 575.

The decree of the court holding the appellant liable for the proceeds of Drake’s cotton in its hands is correct for several reasons. In the first place, according to the undisputed evidence, the appellant had actual notice of appellee’s claim of a landlord’s lien on the cotton before it sold the same. Notwithstanding this notice, appellant sold the cotton and appropriated the entire proceeds, except the sum of $19.45, to the payment of Drake’s account. This it could not do. Pape v. Steward, 69 Ark. 306.

The cotton was grown near Pine Bluff, and delivered by Drake to the appellant, and the appellant accepted the same, as its agent says, believing that Drake was the owner. But the appellant had no right to purchase and receive the cotton without making some inquiry as to a possible landlord’s lien, and could not claim to be an innocent purchaser when, upon such inquiry, it would have necessarily ascertained the fact that there was a landlord’s lien on the cotton. Walker v. Rose, 153 Ark. 599; Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499; Jacobson v. Adkins, 103 Ark. 91; Van Etten v. Lesser-Goldman Cotton Co., 158 Ark. 432.

We cannot concur in the views of learned counsel for the appellant that the preponderance of the evidence shows that the findings and decree of the chancellor are erroneous. The finding of the chancellor that the appellant had no actual notice, we believe, is against the undisputed evidence, but the decree is correct, notwithstanding such erroneous finding. The other findings of the trial court, which are correct, are sufficient in themselves to justify the decree. Finding no error, the decree is affirmed.


source: Caselaw Access Project

author: Hart J.,

license: Public Domain

text:
    Hays v. Goodwin.
    Opinion delivered December 22, 1924.
    Frauds, statute of — part performance. — It is sufficient part performance to take' an oral exchange of land out of the statute where one party went into possession and caused the land given in exchange to be conveyed to the other party, and it is immaterial that the party going into possession did not retain, actual, continuous or adverse possession.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    This action was instituted in the circuit court by appellants against appellee to recover the possession of lot 10, in block 3, in the town of Norphlet, in Union County, Arkansas.
    Appellee filed' an answer, setting up facts which constituted an equitable defense to the action, and on his motion, and without objection on the part of appellants, the case was transferred to the chancery court.
    The Methodist Episcopal Church South of Norphlet, Arkansas, originally owned the lot in question under a warranty deed from T. M. Stocks. There was a church-house erected on the property, which was subsequently torn down. The church was directly in front of the residence of Francis Goodwin. Some time after the church was torn down, it was decided to build another one. Clay Cook, Bill Hays, and Francis Goodwin were the trustees of the church. Francis Goodwin did not want the church to be rebuilt in front .of his residence, because it cut off his view in that direction. He made an agreement with the other trustees to convey the lot in question to him in exchange for another lot in another part of town. Pursuant to this agreement, Francis Goodwin purchased the other lot, and had the title made direct to the trustees of the Methodist Church. The trustees then proceeded with the erection of a new church on it It was agreed between them that the church conference would arrange for the execution of a deed to Francis Goodwin to the lot in question. Francis Goodwin took possession of tlie lot, and used it as a place on which to store his wagons and tools, and also rented it annually to such shows as came to the little town and made arrangements with him to use it for that purpose.
    After the death of Francis Goodwin, his son, T. C. Goodwin, took possession of the lot in question, and used it in the same way for about eleven years, until just before this suit was brought. No one challenged the right of Francis Goodwin to occupy the lot, and it was generally, considered to be owned by him. After his father’s death, T. C. Goodwin purchased the interest of the other heirs in said property and received a deed thereto from them. The above facts were testified to by T. C. Goodwin and several other persons.
    Some of the witnesses testified that Bill Hays and Clay Cook, the other trustees of the church, told them that they had exchanged the lot in question with Francis Goodwin for another lot which he had purchased and caused to be conveyed directly to the church, and on which the new church was erected.
    On the part of appellants it was shown by two of the present trustees of the church, and a member thereof, that the lot in controversy had not been inclosed by a fence, and that they did not know that either Francis Goodwin or T. C. Goodwin was claiming it until just before the present suit was commenced.
    The chancellor found the issues in favor of appellees, and it was decreed that the complaint of appellants should be dismissed for want of equity. The case is here on appeal.

      Geo. R. Haynie, for appellant.
    The rightful owner is deemed to be in possession until he is ousted or disseized. Possession follows title in the absence of any actual possession adverse to it. 60 Ark. 163; 43 Ark. 469:. 73 Ark. 344.

      Mahony, Yocum & Saye and J. N. Saye, for apnellee.
    Having accepted the benefit of the contract, the church is now estopped to plead the statute of frauds as a defense. 10 E. €. L. 831, § 13i8. Equity will never lend its aid to one who invokes it for the purpose of perpetrating- a fraud. 52 Ark. 207; Bigelow, Est. 557; 69 Ark. 513; 136 Ark. 237; 128 Ark. 390; 96 U. S. 332; 17 Pick. 213; 2 Wash. Eeal Prop., *196, § 21. Where one has permitted another to perform acts on the faith of an agreement, he shall not insist that the agreement is barred, and he be entitled to treat those acts as if it had never existed. 52 Ark. 207; 18 Ark. 539. No particular act or series of acts is necessary to demonstrate an intention to claim ownership. 1 E. C. L. 693; 2 C. J. 51; 30 Ark. 610; 117 Ark. 126; 92 Ark. 321. The statute of limitations began to run on the date of the agreement between the trustees and Goodwin. 128 Ark. 390; 115 Ark. 151; 159 Ark. 509.
   Hart J.,

(after stating the facts). T¡he evidence clearly shows that Francis Goodwin, in his lifetime exchanged a lot owned by him with the Methodist Church for the lot in controversy. The exchange was made in this way: Goodwin purchased the lot, and had the deed made direct to the Methodist Church; the trustees accepted the deed to the lot, and erected a church on it ; possession of the lot in controversy was taken by Francis Goodwin under the agreement, and in this way the exchange was consummated. If is true that no- deed or other instrument in writing was given to Francis Goodwin, but the oral contract for the exchange of the lots was taken out of the statute of frauds by the fact that Francis Goodwin entered into possession of the lot in controversy, and caused the lot which he had given in exchange for it to be conveyed to the Methodist Church. This is sufficient part performance of the contract to take the case out of the operation of the statute of frauds. Carnahan v. Terral Bros., 137 Ark. 107; Newton v. Mathis, 110 Ark. 252; Kilgore Lbr. Co. v Halley, 110 Ark 118; Beattie v. Smith, 116 Ark. 532; and Wilkinson v. James, 161 Ark. 175.

It does not make any difference whether either Francis Goodwin or T. C, Goodwin has remained in the actual continuous and adverse possession of the lot in question so as to obtain the title by adverse possession. The title was obtained by the oral contract for the exchange of the lots, which was consummated by Francis Goodwin’s taking possession of the lot in controversy and paying the consideration therefor, which was done by causing a deed to the lot given in exchange for it to be made to the Methodist Church. After the exchange had been consummated by taking possession of the lot and paying the consideration therefor, it did not make any difference whether either Francis Goodwin or T. C. Goodwin remained in the continuous, adverse possession of the lot for the statutory period. The title by the exchange bad passed out of the church, and it did not make any difference to it or its trustees what the purchaser did with the lot.

It is next objected that T. C. Goodwin did not have title to the lot, and could not maintain this action. On this point T. C. Goodwin testified that the lot belonged to his father’s estate, and that, after his death, be received a deed from the other heirs of his father to the lot. His testimony in this respect was not attempted to be contradicted.

It follows that the decree was correct, and will be affirmed.


author: Smith, J.

text:
    Moore v. Denson.
    Opinion delivered December 22, 1924.
    Execution — estate by entireties. — Heal property owned by husband and wife by entireties is subject to sale under execution to satisfy a judgment against the husband, subject, however, to the wife’s .right of survivorship.
    Appeal from Poinsett Circuit Court; G. E. Keck, Judge;
    affirmed.

      Aaron McMullin and Gautney é Dudley, for appellant.

      Eeal property, owned by husband and wife by entire-ties, is not .subject to sale under execution to satisfy a judgment against the husband. 23 C. J. 338; 61 Ark. 388; 124 Ark. 390; 144 Ark. 159; 118 Ark. 274 ; 44 Ark. 458; 29 Ark. 202; 151 Ark. 161; 147 Ark. 7; 154, Ark. 155; 26 Ind. 424, 89 Am. Dec. 471; 68 Ind. 247. See also 42 L. E. A. (N. S.) 555, 84 Atl. 953; 121 A. S. E. (Md.) 578; 102 A. S. E. (Ind) 252; 42 Am. E. (Ind.)‘ 210; 22 A. S. E. '252; 76 111. 536; 64 Pa. 39; 30 L. E. A. (Tenn.) 315).

      8. T. Mayo and Basil Balter, for appellees.
    It appears that this question has not been directly settled by this court, but, by reason and analogy, we think it has been settled contrary to appellant’s contention. C. & M. Digest, § 4270; 74 Ark. 316; 81 Ark. 70; 94 Ark. 296; 54 Ark. 547. Prima facie .all of a debtor’s property is subject to execution, and the burden is on the party claiming it to show that it is exempt. 52 Ark. 547. See also 56 Ark. 139; 54 Ark. 9. ■ A husband or wife may, without the •consent of the other, voluntarily sell or alienate his or her interest in 'an estate held by entirety. 61 Ark. 388, 393, approved by citation in 63 Ark. 289, 301. Neither spouse can deal with an entirety estate in derogation of the other’s right of survivorship, and it is clear that the grantee of the spouse who dies first has no right against the survivor; but it is certainly true that the grantee of the surviving spouse would take the entire title to the same effect and extent as it would have been taken by his grantor, vendor or predecessor in title. 66 Ark. 305; 124 Ark. 390; 12 Mass. 478; 7 Am. Dee. 87; Id. 76; 20 N. J. Law., 556; 45 Am. Dec. 388. Sales under execution in such cases have been held good. 19 Wis. 362; 88 Am. Dec. 692; 4 Sneed 683; 70 Am. Dec. 269; 120 Atl. 194. Our court has joined with that line of opinions which permit the sale or alienation of the interest by either spouse within the consent or joining of the other, and it is a rule of property here. 13 E. O. L. 1131, § 132; 30 C. J. 572; 30 L. E. A. 324.
   Smith, J.

The question involved on this appeal is this: “Is real property, owned by husband and wife by entireties, subject to sale under execution to satisfy a judgment against the husband?”

At § 106 of the chapter on Husband and Wife in 30 C. J., page 572, it is said: “In some jurisdictions it is a rule that the interest of the husband in an estate in entirety during coverture may be reached by his creditors on execution; and the purchaser at the execution sale takes subject to the wife’s right of survivorship and to her right to possession, where that right is conferred or protected, either expressly or impliedly, by statute. But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other; a conveyance by the husband and wife jointly passes title to the property clear of any claim of creditors of the husband; a judgment against-one spouse alone is not, during the joint lives of the tenants of the estate, a lien on the land; and, during coverture, there can be no sale of any part on execution against either.”

Cases supporting’ both the minority and the majority rule are cited in the notes to the text quoted, and, among the cases cited as supporting what is stated to be the minority rule — that the interest of the husband is subject to sale under execution — is our case of Branch v. Polk, 61 Ark. 388, which is found annotated in 54 Am. St. Rep. 266, and 30 L. R. A. 324.

The question stated as being involved on this appeal was not directly involved in the case of Branch v. Polk, supra, but the reason given for the decision in that case is decisive of the question involved here.

The facts there were that Polk and his wife were tenants by the entirety of a tract of land, and each executed a mortgage in which the other did not join, conveying to Mrs. Branch an undivided half interest in the land to secure a note due from Mr. Polk to Mrs. Branch. Polk died, the note matured, and Mrs. Branch brought suit to foreclose both mortgages.

The trial court held that neither sponse was seized of any interest which could be conveyed unless the other spouse joined in the execution of the conveyance. Upon the appeal this court held that Mrs. Polk, having survived her husband, became the sole owner of the land, and that her mortgage deed was valid and binding as to the undivided half interest in said lands conveyed by her as security for the note executed by her husband.

It was there stated that, at the common law, the hus band had, during marriage, exclusive control of such estates, but that this authority of the husband did not. arise from any peculiarity of the estate, but arose out of the rule of the common law that, during coverture, the husband had the control of the estate of his wife, and the court proceeded to consider the question whether, under the law of this State, the wife had the power, during coverture, by a separate deed, to mortgage her interest in lands held by herself and her husband as tenants of the entirety.

After recognizing the conflict in the authorities, Mr. Justice Riddick, speaking for the court, said:

“In this State a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife; Const. 1874, art. 9, § 7; Sandel & Hill’s Digest, § 4945; Neelly v. Lancaster, 47 Ark. 175; 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions was to give the wife control of all the property owned by her, including her interest in an estate ¡by the entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in the rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the Constitution and statute resting on no valid principle or reason. Riles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate, and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach'of the creditors of either of them, and such is the rule followed in several of the States. McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182, 35 Am. St. Rep. 595, and note.
“But it would seem that this rule is, to a certain extent, illogical, for, under it, the effect of the statutes giving married women control of their own property is also in.this instance to curtail the power of the husband over his own interest in real estate. The object of these laws was not to affect in any way the control of the husband over his own property. Their sole purpose was to give to the wife what she did not have at common law, the right to control and convey her own property as if she were unmarried. Mertles v. Numan, 92 N. Y. 152, 44 Am. Rep. 361.
“While such legislation has taken away the control of the husband over the interest of the wife in estates of entireties, as it has removed his control from her other property, yet it does not seem reasonable to hold that it also affected his right to control his own interest in such an estate, or that it exempted such interest from seizure by his creditors. As was said in Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52: ‘Any device of this character for the protection of the husband’s property from his creditors is unknown to the common law, and so contrary to public policy that it ought not to be ingrafted upon our system of laws, by internretation of the statute, unless the intent to do so is clearly expressed.’
“The rational construction of these provisions of our ’Constitution and statute, which ‘unrooted principles of the common law hoarv with age,’ swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own.interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 762; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52.”

We have quoted extensively from Branch v. Polk in order that the reasoning of.that case may appear, for, as we have said, the legal principles which control the decision of the question here were announced there, although the question arose in a different manner.

We conclude therefore that the reason given for the decision in the case of Branch v. Polk, supra, is decisive of the question raised here, and that the interest of either spouse is subject to sale on execution, and, this being true, we do not stop to inquire whether this is the better rule or is supported by the greater weight of authority.

The court below held that the husband’s estate in the land was subject to execution, and refused to'quash an execution which had been levied upon it, and that judgment is affirmed.


author: Humphreys, J.

text:
    Ward v. Malvern.
    Opinion delivered December 22, 1924.
    1. Criminal law — amendment of record — harmless error.— Where a judgment of acquittal of transporting liquor in its caption erroneously recited defendant’s acquittal of a separately pending charge of “speeding,” a nunc pro tunc order of the court striking out the reference to speeding, though made without notice to the defendant, was not prejudicial, if defendant did not challenge the correctness of the court’s finding.
    2. Criminal law — motion to strike out amendment. — Defendant is not entitled to have a nunc pro tunc order correcting a judgment against him stricken out merely because the order was entered without notice to him, if he does not challenge its correctness.
    3. Criminal law — former acquittal. — Where a judgment of acquittal of transporting liquor erroneously recited defendant’s acquittal of another crime, to-wit, “speeding,” but the reference to speeding was stricken from the judgment by a nunc pro tunc order, defendant was not entitled to plead former acquittal on a trial for speeding.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      E. B. Means and Oscar Barnett, for appellant.
    Where a judgment has been- entered and becomes final, it cannot be opened and a new trial granted at a subsequent term. 168 S. W. 129; 113 Arle 237; 206 S. W. 435. The -court, after lapse of the term, loses control over its final judgments. 116 S. W. 200-; 52 Ark. 316; except as prescribed by § 6292, C. & M. Digest. The court abused its discretion in ordering a new trial. 206 S. W. 435; 136 Ark. 290. The court also erred in overruling defendant’s plea of former acquittal. 76 Ark. 297; 26 Ark. 260.

      John I. McClellan, for appellee.
    The plea of former acquittal was properly overruled. 153 Ark. 93; 130 Ark. 51.
   Humphreys, J.

This is an appeal from a judgment of conviction for speeding in the circuit court of Hot Spring County, on appeal from the mayor’s court of the city of Malvern. Two charges were preferred against appellant in the mayor’s court, this one for speeding, and another for transporting liquor. Appellant’s brother, Cash Ward, and one Bill Hughen were charged jointly with him in the transporting case.

Appellant and his co-defendants were convicted in the mayor’s court upon the charge of transporting liquor, and appellant was also convicted upon the charge of speeding. Each case was duly appealed to the circuit court of said county, and separately docketed. Bill Hughen entered a plea of guilty in the circuit court to the charge of transporting, and was fined. Appellant and his brother were tried upon the transporting charge and acquitted, on November 5, 1923. On November 7, 1923, the charge of speeding pending against appellant was continued for the term, by consent of the parties. On July 21, 1924, it was discovered by the court that, in entering the judgment of acquittal in the transporting charge against appellant and his brother, on November 5, 1923, the clerk had written the word “speeding” following the word “transporting” in the caption of the judgment. When the discovery was made, the court, on his own motion, without a petition by appellee and without notice to appellant or his attorney, made a finding that the clerk erroneously inserted the word “speeding” in the caption of the judgment of acquittal, and ordered the word “speeding” stricken from the caption. The word “speeding” did not appear in the body of the judgment of acquittal. On the following day the court notified appellant’s attorneys of his action in striking the word “speeding” from the caption of the judgment of acquittal for transporting liquor, whereupon the attorneys moved the court to strike the order finding that the clerk erroneously inserted the word “speeding,”' because the correction was made without petition by appellee and without notice to appellant, and entered a plea of former acquittal, making the judgment of acquittal as entered on November 5, 1923, the basis thereof. The court overruled the plea of former acquittal, over appellant’s objection and exception.

The only assignment of error relied upon by appellant in his argument for a reversal of the judgment is the trial court’s action in refusing to sustain his plea of former acquittal. His contention is that the court had no right to make the order without a petition being filed by appellee requesting it, and without notice to appellant. He did not challenge the correctness of the finding of the court that the clerk had erroneously inserted the word “speeding” in the caption of the judgment of acquittal. If the word “speeding” was erroneously inserted by the clerk in the caption, appellant was not prejudiced by the order striking said word. Unless prejudiced by the nunc pro tuno order entered by the court, appellant was in no position to ask the court to strike the order. After the word “speeding” was stricken from the caption, the judgment of acquittal, on its face, did not embrace the charge of speeding and was not available in support of appellant’s plea of former acquittal. There was no. merit in appellant’s motion to strike the correcting order unless he had alleged and offered to prove that the court erred in finding that the insertion of the word ‘ ‘ speeding ’ ’ by the clerk was erroneous. As stated above, appellant did not challenge the correctness of the court’s finding, but simply relied upon the fact that it was entered by the court without petition and notice, hence no prejudice resulted to appellant on account of the nunc pro tunc order.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Russell v. Pagan.
    Opinion delivered January 12, 1925.
    1. Deeds — conditional estate. — A deed from a father to his son, providing that the land should revert to the father’s -estate if the son died single, the condition being expressed in both the granting and the habendum, clauses, held to convey a conditional, and not an absolute, estate.
    2. Descent and distribution — conditional estate. — Where a father conveyed land to his son on condition that the lands revert to the father’s estate if the son should die single, and the son died single, the title passed by inheritance to the grantor’s children.
    3. Descent and distribution — advancement — presumption.— Though a conveyance by a father to -his daughter without consideration is presumed to have been intended as an advancement rather than a gift, the question in any given case is one of intention of the grantor to be determined from the facts.
    4. Descent and distribution — evidence op gift. — Where a father conveyed the bulk of his estate to his- son and one daughter, leaving a second daughter unprovided for, in the distribution of the remainder of his estate a finding that the conveyances were intended as gifts and not as advancements will be- sustained by proof that the father was estranged from the second daughter.
    5. Life estate; — disposition of timber. — Where a father' gave a timber deed with the privilege of renewal, and later conveyed the land to his son on condition that the property revert to his estate if the son died single, the son, while single, had a right to dispose of the timber for the purpose of cultivating the land, if it was good husbandry to do so, but he had no right to give a renewal of the timber deed for 20 years.
    6. Life estate — effect of timber deed by life tenant.' — Where a father gave a timber deed to a sawmill company with privilege of renewal, and later conveyed the land to his son on condition that the land revert to the father’s estate -if the son -died single, and the son renewed the timber deed for 20 years and died while single, the sawmill company took subject to the conditions of the deed.
    7. Life estate — effect of timber deed by life tenant. — Where a father gave a timber deed to a sawmill company with privilege of renewal, and later conveyed the land to his son on condition that the land revert to his estate on the son’s dying unmarried, and -after the father’s death the son renewed the timber deed for 20 years, and died while unmarried, leaving surviving him his two sisters, the son was the owner by inheritance at his father’s death of a one-third reversionary interest in the land, and the sawmill company was entitled to a one-third interest in the timber by virtue of the renewal deed.
    Appeal from Union Chancery- Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Wilson & MoGough, for -appellant.
    The deed made to Mittie Russell, while she was an infant, was legally delivered, and was intended to be an advancement. 51 Ark. 531; 47 Ark. 65; 45 Ark. 481. A purchase of land by a father in the name of a son is presumed to be an advancement. 52 Ark. 188. In the absence of clear evidence to the contrary, a gift of an insurance policy from a father to his daughter will be presumed to be an advancement. 68 Ark. 405. The conveyance of land to a minor at the request of the father who purchased it, constitutes an .advancement. 63 Ark. 374; 69 Ark. 629; 199 N. W. 981.

      Gaughan & Sifford, C. L. Poole and E. 8. Yocum, for appellee.
    There is no legal inhibition preventing a man from giving his property to his children, and he may prefer one over the other. Whether or not the transaction constitutes a gift or advancement must be determined from the intention of the parent. 142 Ark. 214; 152 Ark. 577. A condition inserted in a deed after the granting clause conveying a fee simple title is void. 82 Ark. 209. A receipt for rents from all of the joint lessors is sufficient to show payment under the terms of the lease. 94 Ark. 107; 134 Ark. 396; 205 S. W. Ill; 178 Pac. 658.
   McCulloch, C. J.

Appellant instituted this action in the chancery court of Union County to quiet title to a tract of land containing ninety-seven acres, which she acquired by inheritance or gift from her father, L. C. Burgess. 'She also claimed title by adverse possession for the statutory period of limitations. The action was instituted against the other heirs of L. C. Burgess, who are the children of appellant’s deceased sister, Eula Walton, née Burgess, and against the Union Sawmill Company, a corporation which claims to hold a conveyance of the pine timber on a portion of the lands.

It appears from the pleadings and undisputed proof in the case that the land in controversy was originally owned by L. C. Burgess, who was also the owner of other lands in the same immediate locality. L. C. Burgess had three children — appellant, a daughter, and Eula Walton, another daughter, and E. D. Burgess, a son; he also had a brother named B. M. Burgess. L. C. Burgess executed a timber deed to one Starrett, conveying the pine timber on eighty acres of the land in controversy. Starrett subsequently assigned the deed to appellee, Union Sawmill Company. L. C. Burgess conveyed a tract of his land, containing 120 acres, to his daughter, Eula Walton. It appears also from the evidence that he prepared and1 executed a deed for another tract of 120 acres to appellant, his daughter, but there is some conflict in the testimony as to what disposition was made of the deed — whether or not it was delivered. It is undisputed, however, that the deed was either undelivered or was returned to L. C. Burgess, and that he conveyed the land to his brother, D. M. Burgess. Appellant contends that her father agreed to either give her the proceeds of the sale of the land to D. M. Burgess or to convey to her other land. This was not done, however, and there is testimony to the effect that there was an estrangement between appellant and her father.

On June 21, 1913, L. C. Burgess executed to his son, E. D. Burgess, a deed conveying the land in controversy, which said deed reads as follows:

“Know all men by these presents: That I, L. C. Burgess, of New London, Union County, Arkansas, for and in consideration of the sum of one dollar, to me in hand paid by E. D. Burgess, the receipt of which I do hereby acknowledge, and with the further consideration of the care and love I have for the said E. D. Burgess, who is my only son, do hereby grant, bargain, sell and convey unto the said E. D. Burgess, and unto his heirs and assigns forever, the following- lands lying in the county of Union and State of Arkansas, to-wit: (Here follows a description of the land in controversy). Conditioned, that if the said E. D. Burgess remains single and unmarried he shall have the rights, rents and' profits of the said land when single and unmarried; if single and unmarried at death, then the said lands shall revert to the estate of L. C. Burgess. If the said E. D. Burgess marries and has a family, in addition to the rights, rents and profits of the said lands he shall — the further right to sell and convey or dispose of the said lands as he may consider proper and right. On this condition to have and to hold the same unto the said E. D. Burgess and unto his heirs and assigns forever, with all appurtenances thereunto belonging.”

It appears that these several conveyances herein-before mentioned covered all of the lands mentioned by L. C. Burgess. There is no proof in the case that he left any other estate at the time of his death, which occurred on September 23, 1913.

E. D. Burgess took possession of the land in controversy under the deed from his father, and occupied the same until his death, which occurred on November 5, 1920. After his death, appellant took possession of the land, and has occupied the same up to the present time.

Eula Walton died September 5, 1900, leaving appellees, Clyde Pagan, Zella McClendon, Euretta Walton and C. F. Walton as her children and only heirs at law.

The timber deed executed by L. C. Burgess to Starrett was dated February 28, 1903, and it conveyed the pine timber on eighty acres of the land, and specified eleven years from the date of the deed as the period within which the timber should be removed, and provided that the time might be further extended by payment of an annual rental of twenty dollars. E. D. Burgess entered into a contract with the Union Sawmill Company on February 28, 1915, for an extension of the period for removal of the timber during a period of twenty years from the date of the instrument, and there was paid to him by the Union Sawmill Company a consideration of $400. The Union Sawmill Company was joined as defendant in the suit in a prayer that the timber deed be canceled, and the company answered setting up the original deed from L. C. Burgess and the extension deed from E. D. Burgess, claiming title to the timber and the right to remove the same within the period specified in the contract with E. D. Burgess.

The case was submitted to the chancery court on oral testimony as well as the several documents hereinbefore referred to, and the court rendered a final decree, finding that appellant is the owner of an undivided one-half interest in the lands in controversy, and that appellees, children of Eula Walton, are the owners of the other undivided one-half, all subject to the timber rights of the Union 'Sawmill Company, and that the latter is the owner of the pine timber on an undivided one-third of the eighty acres of' land constituting part of the lands in controversy.

Appellant has prosecuted an appeal, and contends that she is entitled to the whole of the tract of land in controversy, free of any claim of the Union Sawmill Company to timber rights, and the Union Sawmill Company has also cross-appealed, claiming that it is entitled to all of the pine timber on the land under the renewal deed from E. D. Burgess.

The first question for determination relates to the ownership of the land. All of the appellees have joined in the brief, and contend that the deed of L. C. Burgess to E. J). Burgess conveyed the title in fee, and that the renewal timber contract executed by E. D. Burgess to the Union Sawmill 'Company was binding on all the parties to this action who inherited the land from him. On the other hand, it is contended on the part of appellant that the deed to E. D. Burgess did not convey the title in fee, but either conveyed a life estate or a conditional fee, which reverted to the heirs of the grantor on failure of the condition. The contention of counsel for appellees that the deed conveyed the absolute fee to E. I). Burgess is that the condition expressed in the deed is in conflict with the granting clause, and is void. They rely upon the decision of this court in the case of Carl Lee v. Ellsberry, 82 Ark. 209, and they cite that case as controlling the present one. We do not agree, however, with counsel that the case referred to is controlling, for the framework and language of the deed are entirely different. In the present case the condition is expressed in the granting clause itself, and not merely in the habendum, and it is also included in the habendum clause. In this respect.the facts of the present case fall squarely-within the rule announced by this court in McDill v. Myer, 94 Ark. 615, where it was held that a condition expressed in a deed was not void unless found to be in conflict with the granting clause. Our conclusion therefore is that the deed did not convey an absolute fee.

In order to determine the present status of the title, it is unimportant whether the deed be construed as conveying merely a life estate or whether it conveyed the fee with a condition subsequent attached, for, according to the undisputed evidence, the condition stated in the deed was never performed, in that E. D. Burgess died without having married, and the title passed to appellant and appellees, the children of Eula Walton, by inheritance, and this was in accordance with the decree of the chancery court.

The contention of appellant is that the deed to Eula Walton was an advancement, and that, since appellant got nothing else from her father’s estate, she is entitled to this land, because the amount of land conveyed to Eula Walton constituted her full share- in her father’s estate. It is urged that the -conveyance by the father to the daug’hter without other consideration is presumed to have been intended as an advancement rather than a gift. The principle of law contended for by counsel for anoellant is correct, -but, after all, it is a question in any given case to determine whether the facts show that the intention of the grantor was to make an advancement or to make a gift. In the case of Holland v. Bonner, 142 Ark. 214, we said:

“The question as to whether or not a conveyance or transfer of money or property is regarded as a simple gift, or advancement, or a sale, is to be determined by the intention of the parent. The question as to what was the intention is generally purely one of fact, to be ascertained from the circumstances of the transaction. The donor’s intention is the controlling principle, and, if it can be said, from all the circumstances surrounding a particular case, that the parent intended a transfer of property to a child to represent a portion of the child’s supposed share in the parent’s estate, such transfer will be treated in law as an advancement. Conversely, if it appears that the ancestor intended that a gift to his child should not be treated as an advancement, such intention will prevail.”

In that case it was held that the circumstances were such as to warrant a finding that the presumption of advancement was overcome, and that the parent intended the conveyance as a gift. Likewise in the case of Latiner v. Moore, 152 Ark. 577, we announced the same principle of law, and held that the circumstances, about which there was a conflict in the testimony, were sufficient to support a finding of the chancery court that the transfer of the property was intended as a gift rather than an advancement. So we conclude in the present case that the circumstances are such that we cannot say that the chancellor erred in finding that the conveyance by L. C. Burgess to his daughter was a gift rather than an advancement. The circumstances are such as .reasonably warrant the inference that L. C. Burgess was dividing up his property by gifts to his several children, and that he disposed of all of his property by gift without any intention of leaving an estate from which advancements to his children should be deducted. He made a conveyance to his daughter, Eula Walton, and also to his son, and the proof shows that the other tract of land which he owned was first covered by a deed to appellant, but that deed was either undelivered or was surrendered, and the land subsequently conveyed to the brother of L. C. Burgess. All this clearly indicates that the parent was parceling out his property by sale or gift, and was not making an advancement. Moreover, there is proof from which the chancellor might have found, and doubtless did find, that there was an estrangement which arose between L. C. Burgess and appellant, and that he had no intention of reserving any of his property for her, but intended to give it to his other children.

We conclude therefore that the decree, was correct in holding that the conveyances were not made as advancements, and that the children of Eula Walton are not cut out of their inheritance of an interest in the lands in controversy.

This disposes of the question of the title to the property, and there only remains the question of the rights of appellee Union Sawmill Company. We have already disposed of the argument that E. D. Burgess had the fee and the right to convey the timber. It is further contended, however, by counsel for appellees, that, even though E. D. Burgess was merely a life tenant, or the holder of a conditional fee, his timber contract was valid as against others interested in the property. We do not agree with this argument of counsel. If Burgess was a mere life tenant, he had the right, of course, to dispose of the timber for the purpose of cultivating the land, if it was good husbandry to do so. McLeod v. Dial, 66 Ark. 10; Rutherford v. Wilson, 95 Ark. 246; McCarroll v. Fall, 129 Ark. 245; Causey v. Wolfe, 135 Ark. 9. But it is obvious from the length of time given that the intention was not to dispose of the timber in order to open up the land,' but that it was merely a commercial venture, and a long period of time, twenty years, was given for the removal of the timber. This may have been called good business judgment as a commercial venture, but it is not good husbandry to give an extension of twenty years to remove the timber from land which was intended for cultivation by the owner. The effect of the renewal contract executed by E. D. Burgess merely constituted a new sale, and it was dependent entirely upon the right or authority of E. D. Burgess to sell the timber. This contract gained no vitality from the original contract executed by L. C. Burgess. Appellee Union Sawmill Company is not in any better attitude if the deed from L. C. Burgess to E. D. Burgess be treated as a conveyance of a conditional fee, for the company took the conveyance' of the timber right subject to the condition, which has failed. The Union Sawmill Company is like any other purchaser who takes title subject to a condition expressed in a deed of a prior grantor, and must abide by the terms of the deeds in the chain of title. The one-third interest in the timber awarded to the sawmill company by the chancery court is as much interest as it is entitled to under this renewal deed from E. D. Burgess, and our conclusion further is that the company was entitled to that much of the timber. Treating the deed either as conveying a life estate or as a conditional fee, E. D. Burgess was, after the death of his father, the owner by inheritance of one-third of the reversionary interest, the other interest being owned equally by appellant and the other daughter, Eula Walton. Appellant and the other heirs are bound by the timber deed to the extent that it conveyed the interest of E. D. Burgess.

We are of the opinion that the decree of the chancery court was therefore correct in every particular, and the same is affirmed.


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    Farmers' Bank of Dardanelle v. Sellers.
    Opinion delivered January 12, 1925.
    1. Composition with creditors — definition.—A “composition with creditors” is an agreement between an embarrassed debtor and his creditors for the immediate payment of less than is due in satisfaction of the debts, and constitutes an agreement, not only between debtor and creditors, but between the creditors themselves, that each shall receive an equal, sum out of the assets of the embarrassed debtor; and acceptance of the amount offered in compensation, or an agreement to accept the same in full of the debt, is binding upon a creditor in the absence of fraud, and precludes him from suing on the original claim.
    2. Composition with creditors — part performance. — A part performance of a composition agreement does not constitute a satisfaction of the original debt.
    3. Composition with creditors — objection to amount tendered— waiver. — Objection by a creditor that the check mailed to him was for an amount smaller than agreed was waived by the creditor where it accepted the check without objection as to the amount and made no complaint on account thereof until after three months.
    4. Composition with creditors — delay.— A creditor was not entitled to avoid a composition agreement on the ground that the check paid to him in pursuance thereof was unreasonably delayed where he accepted it without objection and retained it for over three months without objection and then did not complain of delay.
    5. Composition with creditors — assent of creditors — The validity of a composition agreement is not dependent upon the assent of all the creditors unless the agreement itself so states.
    6. Composition with creditors — failure of creditors to assent.— Where the claims of non-assenting creditors are so small that in the aggregate they could not have substantially influenced accepting creditors, their refusal to consent is immaterial, and does not avoid the composition agreement.
    7. Composition with creditors — waiver of fraud. — A creditor’s acceptance of a check under a composition agreement, with knowledge that certain small creditors had been paid in full, is a waiver of any fraud in preferring such creditors.
    8. Composition with creditors — preference.—Evidence that a creditor after a composition agreement was entered into secured a judgment against the debtor was insufficient to prove that the creditor did not assent to the agreement or that the debtor was attempting to confer a preference upon such creditor.

      9. Composition with creditors — burden of proof of fraud. — A creditor seeking to avoid a composition agreement on the ground of fraud and misrepresentation inducing his acceptance of the composition has the burden of proof.
    10. Composition with creditors — immaterial misrepresentation. —The fact that a debtor represented that the money to cárry out a proposed composition agreement would be raised by mortgaging his homestead, whereas it was furnished by his attorneys, would not invalidate the agreement.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      Robt. J. White, Anthony Hall, and John M. Parker, for appellant.
    Where a debtor, by false representations as to his financial condition, induces his creditors to accept a composition, it is not binding. C. J. 547, par. 57; Id. 569, § 104; 128 S. W. 855. A prior conveyance in fraud of creditors will invalidate a composition, unless the creditor knew of it when he entered into the composition. 12 C. J. 284, § 73. The law demands the utmost good faith on the part of a debtor in effecting a composition. Any fraud, misrepresentation, concealment or suppression on his part with respect to any material fact will vitiate the composition, and entitle a creditor injured thereby, at his option, to treat it as null and void, at any time within the statute of limitations. 12 Cyc. 283, § 73. If the debtor furnishes a statement as the basis of a composition, he is answerable for its truth. 12 C. J. 284, § 75 and note 89a. Since the letter from Beal-Burrow Dry Gfoods Company required an affirmative answer from all creditors, and their proposition was not submitted to, nor accepted by, all the creditors, there was no composition. 1 C. J. 547, § 57. The composition proposed by this letter was never completed. The tender made by the attorney of the debtor as his agent was not binding. 1 C. J. 549, § 60. The only consideration that could have moved appellant to accept the amount tendered was the attempted composition. 1 C. J. 547, §'56. This consideration having failed, the alleged acceptance of the bank was without consideration and void. 1 C. J. 528, § 14. No sufficient tender was made; 33^ per cent, of the bank's debt amounted to $550, whereas the check was only for $525. Part performance did not constitute satisfaction. 1 C. J. 533, § 21, and notes; Id. § 22, and notes; 12 C. J. 270, § 40; 78 Ark. 304; 115 Ark. 347, 348; 88 Ark. 473, 476; 70 Ark. 215. Plaintiff gave no written release of its claim, and therefore could sue on the original demand, the debt being liquidated and due. 1 C. J. 539, § 40; 55 Ark. 369; 44 Ark. 349 ; 33 Ark. 572; 129 Ark. 82.

      Hays, Priddy & Hays, for appellee.
    The appellant should have objected to the amount stated in the Beal-Burrow Dry Goods Company’s letter as the amount of appellant’s debt, that it was too small. Instead it examined the list of creditors submitted, went to see Sellers, and then accepted the proposal. It is too late now to object to the amount of the check for 33j<3 per cent, of the amount stated in the list as appellant’s debt. 12 C. J. 265, note 68 (a); 119 Mass. 453. Appellee was entitled to a reasonable time in which to send remittances to the various creditors. Certainly a remittance one month and twenty-two days after acceptance of the composition, was, under the circumstances, not an unreasonable delay. Besides, appellant never objected to the alleged delay. 12 C. J. 268. Time is not the essence of the contract. 5 R. C. L. 869. It is not essential that all or even the greater part of the creditors join in a composition, unless it is so stipulated in the agreement itself. 12 C. J. 261. Whether executed or executory, a valid composition is binding until breached. A creditor cannot revoke his assent, or withdraw without the consent of the other parties; and the composition, while in force, is a bar to any action to recover the original debt of any creditor who has joined. 12 C. J. 272. Appellant could not cancel this agreement between itself and the other creditors on its own motion.' 5 R. O. L. 868-9, 870-; 12 C. J. 274, note 60. The failure to list a small indebtedness, which was after-wards paid in full, will not, in the absence of proof of fraudulent concealment, release a creditor from the composition. 144 Ark. 87; 92 Ark. 509. As to the debt of the Durett Flour & Grain Co., whose account was listed, appellant could easily have ascertained that that company refused to sign the composition.
   McCulloch, C. J.

This is an action at law instituted by appellant against appellee to recover on a promissory note executed by the latter to the former, dated January 4,1921, due and payable March 1 after date, for the sum of $1,673.56, with interest. Appellee answered, setting up as defense that he had made a composition with his creditors, which had been accepted by appellant, and that appellant had received and accepted a certified check for its pro rata amount of the composition. Appellant admitted the receipt of the check for the amount named, but contended that its acceptance of the composition had been induced by fraudulent acts on the part of appellee or his creditors. The issues were tried before a jury, but, at the conclusion of the introduction of testimony, the court gave a peremptory instruction in favor of appellee. The question presented on this appeal is whether or not there was sufficient evidence on the part of appellant to call for a submission of the issues to the jury.

Appellee was a merchant at Blaine, in Logan County, and, in the course of his business, executed the note in suit to appellant. Becoming financially embarrassed, appellee applied to his largest creditor, the Beal-Burrow Dry Goods Company, of Little Bock, -for an adjustment, and, through the latter, a proposition was submitted to the creditors of appellee for a composition on the basis of payment of one-third of the debts in full settlement. A letter was sent out to the creditors by Beal-Burrow Dry Goods Company, dated May 7, 1921, stating in substance that appellee was hopelessly insolvent, and offering, on behalf of appellee, the payment of thirty-three and one-third cents on the dollar to all the creditors. The letter was accompanied by a financial statement of appellee showing gross assets inventoried $18,853.32, but of a net value of $4,875.45, in addition to his homestead, and also accompanied by a list of the creditors, showing* an aggregate of $18,011.86. The letter presented argument why it would be to the best interest of the creditors to accept the offered composition, and requested an affirmative reply from each creditor. The letter contained a statement, that, unless all the creditors accepted the proposition, the estate would be thrown into bankruptcy. One of these letters, with accompanying statements, was sent to appellant, and on May 13,1921, appellant’, through its president, wrote a letter to Beal-Burrow Dry Goods Company, accepting the offer. In the list of creditors appellant’s debt was listed at the sum of $1,575, and on June 21, 1921, Beal-Burrow Dry Goods Company mailed to appellant, in satisfaction of its debt in accordance with the composition, a certified check of Hays & Ward, attorneys for appellee, on a bank at Russellville, Arkansas. Appellant did not cash the check, but made no response until September 27, 1921, when it wrote to appellee a letter demanding payment of the full amount of the original debt. Payment was refused, and this suit was instituted about a year and a half later, and appellant, for the first time, offered in its pleadings in the case to return the certified cheek.

There was proof adduced in the case that several creditors in small amounts were subsequently paid the amounts due them in full. Some of those creditors were not embraced in the list, and another creditor — Durett Flour & Grain Company of Fort Smith, Arkansas, whose debt was listed in the sum of $858.23 — instituted suit against appellee and recovered judgment against him for the full amount of the debt. This was subsequent to the composition. It is insisted that there is evidence to sustain the contention of appellant that appellee perpetrated a fraud in several respects, to-wit: in representing his financial condition to be insolvency, when, as a matter of fact, he was not insolvent; in representing that he would comply with the composition, if accepted by creditors, by mortgaging his homestead and raising the money in that way to pay the amount; that he misrepresented the amount of his assets and the amount of his debts, and secretly agreed with his creditors to give a preference. There were other contentions, to be stated in the course of this opinion.

A composition of creditors is an agreement between an embarrassed debtor and his creditors for the immediate payment of a less sum in satisfaction of the whole amount due on the claim, and it constitutes an agreement, not only between the creditors and his debtors, but also one between the creditors themselves, that each shall receive an equal sum out of the assets of the embarrassed debtor. An acceptance of the amount offered in compensation, or an agreement to accept the same in full of the debt, is binding upon a creditor in the absence of fraud, and precludes him from suing on the original claim. 5 R. C. L., p. 868. It has been held, however, that a part performance of the composition agreement does not constitute a satisfaction of the original debt (1 C. J., p. 533, and note), and it is contended, in the first place, that appellant is not bound by the receipt of the certified check, for the reason that it fell short of being one-third of the full amount of the debt. In other words, the contention is that appellant’s debt, iwith accumulated interest, amounted to $1,650, and that the check sent was for $525, which was $25 short of the amount due under the composition. The answer to this contention is that appellant’s debt was listed in the proposition sent out by Beal-Burrow Dry Goods Company in the sum of $1,575, and appellant’s acceptance of the offer constituted an agreement to accept one-third of the amount stated in the list of creditors. If appellant desired to claim a larger amount, it should have qualified its acceptance by stating the amount it was willing to accept. The amount of the check corresponded precisely with the amount that appellant had agreed to accept, and therefore it is too late now to contend that it was entitled to a larger sum.

The next contention is that the check was not’ delivered within a reasonable time. The delay was waived by receiving the check without objection. According to the undisputed proof, the check was sent on June 21, and appellant made no objection to it until September '27, and then the objection was not based on any delay, and the check was retained by appellant until the commencement of this suit, a year and a half later.

The next contention is that the composition agreement was not binding, for the reason that all of the creditors did not assent to it. The rule is that the validity of a composition agreement is not dependent upon the assent of all creditors unless the agreement itself so states. In. other words, there may be a composition of a part of the creditors without invalidating the agreement or affecting the rights of other .creditors (12 C. J., p. 261), but, where the agreement itself states that it is not binding unless all of the creditors accept, then it does not constitute a valid and binding composition .until there is an acceptance by all the creditors. The letter sent out by Beal-Burrow Dry Goods Company on behalf of appellee undoubtedly contemplated an assent from all the creditors, and appellant, in expressing its acceptance, assented under those terms, and, if the fact was secretly withheld from appellant that other creditors had not accepted, then it would defeat the composition, and .appellant would be entitled to recover on the original debt. In examining the testimony in the case we find that the claims of all of the creditors, except one, who failed to accept the composition, were very small in amount — too small to be of sufficient consequence to operate as a fraud on appellant if their non-acceptance was withheld. The theory upon which the rule of law is based that there must be an acceptance of all the creditors is that it constitutes a fraud on those who do accept to permit a secret preference to be given those who do not accept, but, if the amount of the claims of omitted creditors is, in the aggregate, so small that it could not have had any substantial influence upon the action of accepting creditors, it is immaterial, and does not avoid the composition. There is another reason why appellant cannot escape the binding force of its acceptance, and that is that, at the time it received the check, it knew that certain of the small creditors were to be paid in full, and this constituted a waiver of the fraud, if any, in giving preference to the omitted creditors. Knowledge, at the time of the acceptance of the amount paid under composition, of a secret preference to other creditors, or any other fraud, constitutes a waiver of such fraud. 12 C. J., p. 285; Clark v. White, 12 Peters 178; Bowet v. Metz, 54 Iowa 394. The only proof with reference to the other large creditor, Durett Flour & Grain Company, $858.23, is that, subsequent to the composition, that creditor obtained a judgment against appellee for the full amount of the claim. That particular creditor was listed along with the others, and there is no proof introduced as to whether or not there had been an acceptance of the offer. The mere fact that the creditor in question obtained a judgment against appellee is not sufficient to show that there was no acceptance by the creditor of the offer, or that appellee was attempting to confer upon that creditor a preference. It is not explained why the Durett Flour & Grain Company was permitted to sue on the original debt, and, as before stated, it is not shown that there had been no acceptance. It may be that there was an acceptance, but that appellee had failed or omitted to pay the pro rata and had been sued for the original debt on that account. This is far from showing that there had not been an acceptance by the creditor, or that there was a secret preference attempted.

The other contentions in the case are that appellee did not list all of his property, in that there was land in his wife’s name which should have been listed as his property, and also that he was not insolvent at the time, and had not been threatened with bankruptcy. We are of the opinion that the evidence does not sustain these charges and was not sufficient to warrant a submission of the issues to the jury. The burden was upon appellant to show that fraud had been perpetrated, which misled him and induced him to make an acceptance which would not otherwise have been made, and appellant has not sustained that burden by introducing proof tending to show that there was a misrepresentation in any of the particulars mentioned.

Again, it is urged that the representations were false in the statement that the money to carry out the composition would be raised by mortgaging the homestead, whereas the money to pay the creditors was furnished by the appellee’s attorneys. This is unimportant, and does not affect the integrity or validity of the composition. If appellee found other means of raising the money to comply with the composition agreement, it had no bearing on the controversy further than it might show that appellee had other property which was withheld from the statement of assets. But the bare fact that the money was paid into the Russellville bank by appellee’s attorney raises no inference that it constituted funds which belonged to him and was being wrongfully withheld from creditors.

Upon the whole we are convinced that there was no evidence sufficient to warrant a submission of the issues to the jury, and that the court was correct in directing a verdict in favor of appellee.

The judgment is therefore affirmed.


text:
    Bledsoe v. State.
    Opinion delivered January 12, 1925.
    1. Taxation — re-examination of accounts of sheriff. — Under Crawford & Moses’ Dig., § 10165, fixing two years after settlement within which the county court may reconsider and adjust the accounts of county officers, such a proceeding, instituted after two years from a sheriff’s settlement, is too late.
    2. Trial — transfer of cause. — A cause instituted in the county court and appealed to the circuit court may not, even on proper allegations of fraud, he transferred to the chancery court.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      Starbird & Starbird, W. E. Neal, G. M. Wofford, and E. L. Matlock, for appellants.
    The county court lost jurisdiction to reconsider and adjust the collector’s settlement with the expiration of two years from the date of its approval thereof, .and such settlement could thereafter be inquired into only by the chancery court upon allegation and proof of fraud on the part of the collector in making the same. C. & M. Digest, § 10165; 30 Ark. 603; 100 Ark. 571; 137 Ark. 75; 139 Ark. 35; 49 Ark. 311. And the circuit court acquired no jurisdiction on appeal. By going to trial upon the issues, after the motion to dismiss the appeal was overruled, appellants did not waive their right to object here to the jurisdiction of the court below. 59 Ark. 593; 124 Ark. 331.

      Dave Partain, O. D. Thompson, and John D. Arhuckle, for appellees.
    The fault with appellants’ argument against the jurisdiction of the county court is that the proceeding in July, 1923, was not the first attempt to adjust the accounts of the collector; and they overlook the fact that preliminary examination and adjustment could be had of these accounts without notice being given. C. & M. Digest, % 10158 and note; 7 Ark. 162; 11 Ark. 611.
   McCulloch, C. J.

C. M. Bledsoe, one of the appellants, was sheriff and collector of Crawford County from January 1, 1919, to December 31, 1922, and the other appellants were sureties on his collector’s bond during his first term.

On July 5, 1921, Bledsoe filed with the county court his settlement, as collector, for the taxes collected by him for the year 1920, and that settlement was examined and approved by the county court on the day it was filed. On July 16, 1923, the county judge caused notice to be served on Bledsoe and his sureties to the effect that on August 7, 1923, the county court would reconsider the settlement of account of July 5, 1921, and correct any error found therein. Upon the maturity of this notice, appellants appeared in the county court and objected on the ground that the county court was without jurisdiction to reconsider the settlement, for the reason that two years had elapsed since the court had approved the settlement. The county court overruled the protest, and proceeded to a reconsideration of the account, and found that there were errors in the settlement whereby Bledsoe had failed to charge himself with the gross sum of $9,632.84, which should have been properly accounted for in the settlement. The court readjusted the settlement and charged Bledsoe with the additional amount found to be due. There was an appeal to the circuit court, where appellants renewed their motion to dismiss the proceedings on account of lack of jurisdiction. This was overruled, and the circuit court proceeded with the trial of the cause, and, after giving all credits found to be due, found alleged errors in Bledsoe’s settlement in the aggregate of $8,039:24, for which he was chargeable, and rendered judgment accordingly.

There were numerous exceptions saved on the trial of the cause, and there are assignments of error with respect to each. The first assignment, the one which we find to be fatal to the proceeding, is that the county court was without jurisdiction, for the reason that the proceedings were not instituted within two years after the approval of Bledsoe’s settlement. The statute under which the proceedings were instituted is as follows :

“Section 10165. Adjustment of Errors. Whenever any error shall be discovered in the settlement of any county officers made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement, to reconsider and adjust the same.”
“Section 10166. Notice of Re-examination. Before any such settlement shall be re-examined, it shall be the duty of the court to give such officer ten days’ notice of the time and place where such settlement will be adjusted.” Id.

It is undisputed that the settlement was made with the county court and approved on July 5, 1921, and that the notice for re-examination of the settlement was not given until July 16, 1923, which was eleven days after the expiration of the statutory time allowed for reexamination of the settlement in the county court. It has been decided by this court that, under the statute referred to, the county court lost jurisdiction to re-examine the account after the expiration of two years from the date of the approval of the settlement. State ex rel. v. Turner, 49 Ark. 311; State v. Perkins, 101 Ark. 358; Fuller v. State, 112 Ark. 91. It was decided in those cases that the settlement of a collector became final and conclusive after the expiration of two years from the date thereof, except that a court of equity may re-examine such settlement on a charge of fraud

Learned counsel for appellee concede this to be the law, but they contend that the proceedings for re-examination of the settlement of Bledsoe were, in effect, instituted prior to the expiration of two years after the original approval of the settlement by the county court. They base this contention upon the fact that, in November, 1922, the county court employed an auditor to check up Bledsoe’s accounts; that the accountant found the shortage which is now charged, and so reported to the county court; that the commissioners of accounts appointed by the circuit court also filed a report with the county court, charging the same amount of shortage reported by the accountant; and that the county court, upon this report, rendered a judgment against Bledsoe and his sureties for the amount of the alleged shortage. These facts are brought out in the proof, and it is also shown that an action was instituted in behalf of the State against appellants in the circuit court of Crawford County to recover the amount found by the county court to be due, but the circuit court dismissed this action on the ground that there had not been a readjustment of the account upon notice, as required by statute. It is thus seen that all the proceedings prior to July 16, 1923, were ex parte, and that none of the appellants were parties thereto. A mere investigation conducted by the county court, or even on order of the county court, was not binding upon appellants without notice having been given as required by statute. Those proceedings can in no sense be treated as being connected with the subsequent proceedings which were begun by giving the statutory notice on July 16, 1923. It is unnecessary to determine in thi's case whether or not the giving of notice within two years would be sufficient to endow the county court with jurisdiction, for it is undisputed that the notice was not given within a period of two years from the time of the settlement.

It follows therefore that the county court had no jurisdiction and that the circuit court acquired none on appeal. The cause could not be transferred to the chancery court, even on proper allegations of fraud, except in a new action commenced in that court. In other words, there could be no transfer of this cause from the circuit court to the chancery court.

The' facts being undisputed, it is unnecessary to remand the case, so the judgment of the circuit court will be reversed, and the proceeding dismissed. It is so ordered.


author: Hart, J.

text:
    Moore v. State.
    Opinion delivered January 12, 1925.
    1. Criminal law — sufficiency of evidence. — In reviewing the sufficiency of evidence to support conviction, the evidence is viewed in the light most favorable to the State.
    2. Homicide — conviction of manslaughter — evidence.—Evidence held to sustain a conviction of voluntary manslaughter.
    3. Homicide — prejudice removed by verdict. — Where the court allowed defendant to prove threats of deceased tending to reduce the degree of homicide, exclusion of further testimony that defendant had run deceased away from defendant’s home, warning him to let his wife alone, and of similar testimony of another witness, held not prejudicial, in view of the verdict of voluntary manslaughter.

      Appeal from Hempstead Circuit Court; James H. McCollum, Judge;
    affirmed.

      J. S. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   Hart, J.

John Moore prosecutes this appeal to reverse a judgment of conviction against him for the crime of manslaughter.

The case was tried before a jury, which returned a verdict finding the defendant guilty of voluntary manslaughter and fixing his punishment at two years in the State Penitentiary.

In determining the legal sufficiency of the evidence to support the verdict, it must be considered in the light most favorable to the State. Annie Curry, a sister-in-law of the defendant, was the principal witness for the State. According to her testimony, the defendant, his wife, the witness, and another woman were walking along, when they saw Jimmie Jones and Zan Brown approaching them. "When the parties were about to meet, the defendant stepped in front of his wife and said, “Jim Jones has mistreated me long enough.” Just as he finished these words, he shot Jimmie Jones. The latter wheeled and sank down beside a telephone post. The defendant then shot Jones again. After the shooting was over, the defendant remarked that he ought to have killed them all. He was referring to his wife and to the witness. Jimmie Jones did not at any time reach for a gun or knife, or anything of the kind. He did not make any effort whatever to do anything to the defendant. Iñ a few minutes Jones died. There was a bullet-hole in his head and one in his back. All of the parties were colored people, and the killing occurred in Hempstead County, Arkansas. The defendant was a witness for himself, and testified that he shot and killed the deceased because he feared that the deceased was going to kill him. Without further comment, it need only be said that the evidence for the State fully justified the verdict • of the jury.

No brief has been filed in behalf of the defendant. We have carefully examined the instructions given by the court, and, without setting them out, deem it sufficient to say that they fully and fairly cover the respective theories of the State and of the defendant, as developed by the evidence.

Another assignment of error in the motion for a new trial of the defendant is that the court erred in refusing to allow him to testify that he had run the deceased away from his home a number of times, and had told him to let his wife alone.

The court, at the time, expressly stated that the defendant would be allowed to prove any threats made against him by the deceased. He was allowed to testify that he told his wife to make the deceased stay away from there, and that she reported to him that she did tell Jimmie Jones what her husband had said, and that she had told her husband that Jones had replied: “Well, you tell your husband he is a man just like I am; if he don’t like it, he can see me.” The defendant was also allowed to testify that Sam Reynolds had told him that Jimmie Jones had told Reynolds that the defendant was sore at him for going with his wife, and that he (Jones) was going to kill the defendant. The defendant was also allowed to prove the threats by Sam Reynolds, and the further fact that Reynolds had communicated the threats to the defendant.

The court, at all times throughout the trial, stated that the defendant would be allowed to prove previous threats by the deceased. This testimony was admitted for the purpose of shedding light upon the issue as to who was the aggressor. These threats were admitted by the court to show that the defendant had reasonable grounds to apprehend that the attack which he testified was made upon him by the deceased was intended by him to be a deadly one.

The additional testimony that the defendant had ordered the deceased to stay away from his house, if admissible at all, would only be competent to show that the act and conduct of the deceased towards the wife of the defendant had 'Created an irresistible passion of anger in the defendant towards the deceased, which resulted in the killing. The cause from which the passion springs, whether of anger or fear, could only reduce the grade of homicide from murder to manslaughter. Collins v. State, 102 Ark. 180.

As we have already seen, the jury found the defendant guilty of voluntary manslaughter and imposed upon him the lowest punishment for that crime. Hence, if the testimony was admissible for the purpose indicated, the verdict of the jury eliminated any prejudice, that might have resulted to the defendant from the exclusion of the testimony.

Another assignment of error in the motion for a new trial is that the court erred in not allowing Annie Curry to state that she had seen Jimmie Jones at the defendant’s house a number of times.

What we have stated above also applies to this assignment of error. In addition to this, the witness was permitted to answer that Jimmie Jones had visited at the home of the defendant.

We find no reversible error in the record, and the judgment will be affirmed.


author: Hart, J.,

text:
    Oliphant v. Hamm.
    Opinion delivered January 12, 1925.
    1. Municipal Corporations — rights op pedestrians and motorists. — The relative rights of pedestrians and motorists in the public streets are equal, each being obliged to act with due regard to the movements of the other, but neither is called upon to anticipate the other’s negligence.
    2. Municipal corporations — evidence op motorist’s negligence.— Evidence that plaintiff, a twelve-year-old boy, was run over by defendant driving an automobile without giving warning as he was walking along the side of the street, and that defendant saw plaintiff and knew that he was oblivious to the car’s approach, held to sustain a verdict for plaintiff.

      3. Appeal and error — instructions—exceptions in gross..— Exceptions in gross to the giving of several instructions are not sufficient for review unless all of the instructions are incorréet.
    4. Appeal and error — refusal of instruction — harmless error.— In an action for negligently driving over a child walking along the side of a street, refusal to instruct that “the sidewalk in towns and cities is the part of the street set aside for pedestrians, though they are not required under the law to walk on them” held not prejudicial.
    5. Appeal and error — abandonment of exceptions. — Exceptions to the refusal to give instructions requested will be treated as abandoned when not assigned as grounds for new trial in the motion therefor.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Johnnie Hamm, by A. L. Hamm, his father and next friend, instituted this action against O. C. Oliphant and Eobert Oliphant to recover damages on account of their alleged negligence in driving an automobile against him while he was walking along the street.
    Mrs. Myrtle Hamm, an aunt of Johnnie Hamm, was the principal witness for the plaintiff.
    According to her testimony, Johnnie’s mother died when he was an infant, and she took him to raise. He lived with her in the old town of Booneville in October, 1921, at the time he was injured by being run over by an automobile driven by Robert Oliphant. Johnnie went into the kitchen and got a piece of pie from her. He then went out into the street and started west on it. She went into the front part of the house, and saw him going along the street in the beaten roadway where pedestrians usually walked. There was no sidewalk on the street. As Johnnie walked along the street, Eobert Oliphant drove his automobile along the street behind him. He did not give any signal of any kind of the approach of the automobile. Just before the automobile struck him, she saw Lee Austin driving an automobile on the same street, approaching Johnnie, and Austin stopped his car and motioned to Johnnie. Just as Austin did this, Oliphant struck Johnnie with his automobile and severely injured him.
    According to the testimony of Lee Austin, as he drove into the street towards the residence where Johnnie Hamm lived, he saw the latter coming towards him along the beaten pathway of the street, where footmen usually walked. Robert Oliphant was behind Johnnie, driving a Packard automobile belonging to O. O. Oliphant. Austin thought that Oliphant was going to run over Johnnie, and pulled his own automobile to the right of the street and motioned to Johnnie to come towards him. Just at that instant Oliphant’s automobile struck Johnnie and ran over his body. Oliphant gave no signal of any kind of his approach, and the Packard automobile he was driving moved without making any noise scarcely.
    According to the testimony of Johnnie Hamm, he saw Lee Austin driving towards him, and motioned to him after he stopped his car. He started towards Austin, but had not yet taken a step when the car driven by Robert Oliphant hit him and knocked him down. Oliphant gave no warning that he was approaching in his car, and the witness did not know that he was behind him until the car struck him.
    A physician testified that Johnnie had two or three ribs broken and Was otherwise bruised and injured.
    According to the testimony of Robert Oliphant, he was driving slowly, and sounded his horn. as he approached Johnnie Hamm. Lee Austin drove into the same street in an automobile from the opposite direction, and stopped his car near the sidewalk. He motioned to Johnnie to come to him, and the latter did so. The witness thought that Johnnie was going to stand there and talk to Austin; but, just as his car passed them. Johnnie suddenly turned and stepped in front of the car. The bumper knocked him down, but neither of the wheels passed over him.
    The jury returned a verdict in favor of the plaintiff in the sum of $300, and from the judgment rendered the defendants have duly prosecuted an appeal to this court.

      Kincannon & Kincannon, for .appellant.
    While it is a question for the jury to say whether due care had been exercised by appellee (102 Ark. 315), yet the evidence does not warrant the jury’s finding. Instruction No. 3 should have been given. Negligent failure to observe reasonable care will prevent recovery. 7 L. R. A. p. 678. See also 116 Ark. 26.

      Evans & Evans, for appellee.
    There is nothing before this court for consideration, for the reason that appellants did not reserve any exceptions to the action of the trial court in overruling their motion for a new trial. C. & M. Digest, § 1320; 76 Ark. 400; 95 Ark. 62. Exceptions were not saved by appellant to the giving of instructions complained of, and are of no avail now. 73 Ark. 407; 26 Ark. 334; 38 Ark. 246; 78 Ark. 490; 91 Ark. 43; 131 Ark. 121; 135 Ark. 499; 156 Ark. 54. Appellee was not guilty of negligence as a matter of law. 20 R. C. L., § 105; 124 Ark. 1; 142 Ark. 593. Appellee had ,a right to be in the street. Drivers .of cars must anticipate the presence of pedestrians in the street, and exercise reasonable care to avoid injuring them. 102 Ark. 351; 130 Ark. 406; 136 Ark. 23.; 97 Ark. 469; 102 Ark. 354.
   Hart, J.,

(after stating the facts). It is first contended by counsel for the defendant that the evidence is not sufficient to support the verdict.

The relative rights of pedestrians and motor vehicles in a public street are equal, and each is obliged to act with due regard to the movements of the other. Neither is called upon to anticipate negligence of the other. Johnnie Hamm was twelve years of age, and was possessed of the mental and bodily vigor usual to boys of his age at the time he was injured. He had a right to walk along the street, observing such care as children of like age are accustomed to use, while the defendants had the right to drive their automobile along the street, observing such watchfulness for footmen as the circumstances seemed to require. According to the evidence for the plaintiff, Johnnie Hamm was walking along the beaten path on one side of the street, when the automobile of the defendant approached' him, without any signal being given, and struck him with such force as to knock him down and to cause one of the wheels to pass over his body. The jury might have inferred from the evidence for the plaintiff that the driver of the automobile had a clear view ahead of him, that he knew that his car was approaching the boy without making any noise scarcely, and that the boy was oblivious of his approach.'

Under the circumstances as proved by the plaintiff, the circuit court properly held that the question of negligence on the part of the defendants and contributory negligence on the part of the plaintiff were for the jury. Therefore we are of the opinion that, under the principles of law decided by this court in similar cases, the evidence was legally sufficient to support the verdict. Millsaps v. Brogdon, 97 Ark. 469; Minor v. Mapes, 102 Ark. 351; Carter v. Brown, 136 Ark. 23; and Brashears v. Arnett, 144 Ark. 196.

Counsel for the defendants also assign as error the action of the court in giving instructions Nos. 5, 6, 7, 8 and 12. The bill of exception recites the following: “The court then, at the request of the plaintiff, gave to the jury, over the objections of the defendants, the following instructions.” Then follow twelve instructions given by the court.

We have repeatedly held that exceptions to a trial court’s ruling in giving or refusing instructions must be separately made at the time, and that exceptions in gross are not sufficient to bring up the instructions for review, unless the instructions objected to are all incorrect. L. J. Smith Construction Co. v. Tate, 151 Ark. 278, and Dubisson v. McMullin, 163 Ark. 186.

We need not set out all of th¿ instructions referred to, because it is not claimed by counsel for the defendants that all of them are incorrect. In fact, some of them are admitted to be correct instructions. •

It is next insisted that the court erred in refusing to give an instruction asked for by the defendants as fóllows: “The sidewalk, in towns and cities, is the part of the street set apart for pedestrians, though they are not required, under the law, to walk on them.” No possible prejudice could have resulted to the defendants from the failure of the court to give this instruction. Moreover, the same idea was included in the instructions given ¡by the court.

Counsel for the defendants failed to bring forward in their motion for a new trial alleged errors of the trial court in refusing to give other instructions asked by them. Therefore such exceptions to the ruling of the court will be treated as abandoned, under our rules of practice. Myers v. Andre, 161 Ark. 393.

It follows that the judgment must be affirmed.