author: Woon, J.

text:
    Jackson v. Carter.
    Opinion delivered December 21, 1925.
    1. Sales — stolen property — burden of proof. — In a suit on the purchase-money notes given in payment of an automobile, where the defense w*as that the car was stolen and that plaintiff had no title, the burden of proving that the ear was stolen was on the defendant.
    2. Judgment — right to judgment notwithstanding verdict. — Under Crawford & Moses’ Dig1., §§ 6271, 6273, defining the cases in which a. judgment notwithstanding the verdict may be rendered, judgment may not be rendered notwithstanding the verdict because there was no evidence to support the verdict.
    3. Appeal and error — rendering final judgment. — Where it is manifest that a cause has been fully developed, and that if the court had properly instructed the jury plaintiff would have recovered a verdict, the Supreme Court, on reversing the ease, has authority to enter judgment for the plaintiff.

      Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      W. 1. Whiity, for appellant.
   Woon, J.

W. F. Jackson instituted this action in the circuit court of Washington County against B. C. Carter. The foundation of the action is three promissory notes executed by Carter to Jackson for the purchase of an automobile. The notes were dated November 22, 19'20, one for the sum of $833, and two for the sum of $833.50 each, due respectively February 1, 1921, November 22, 1921, and November 2,1922, a total sum of $2,500, bearing interest at the rate of ten per cent, per annum from date until paid. There Was a credit in the sum of $200 paid June ’20, 1923, as shown by the notes, copies of which were made exhibits to the complaint. In his answer to the complaint, Carter admitted that he purchased the automobile of Jackson, and admitted the execution of the notes for the purchase price thereof, but alleged that the automobile was a stolen car at the time the same was sold to him by Jackson, and that therefore the consideration for the notes had failed. The notes were introduced, and Carter admitted their execution and delivery. Carter then testified in substance that he executed the notes to the people from, whom he purchased the car through one Rex Lewis, who conducted the negotiations for Jackson, representing the Paige Motor Company of San Angelo, Texas. The notes were made to the Angelo Motor Sales Company. The car was a big Paige six. Witness took possession of the car at once, and used it in going to church and town for family purposes only. The car had been run for about a year. It had Goodyear tires on it, showing that it had been run considerably, yet it'was in good shape. Witness ran the car with those same tires over a year, and they did not give away. Witness kept the car in his possession about two years. When the first note became due, it was extended to the 22d of February, and on that date witness went to San Angelo with the car, and offered the car to the motor company from which lie purchased same, stating that he could not pay for it. The company took it back. It was to keep the car up a year. The next time a note1 was due, on November 22, 1922, witness went to see^ Jackson, and told him that he could not make a payment. Witness offered to assign Jackson a policy carried by witness with the-Woodmen of the World.' Jackson'did not take the policy, but told witness to carry the car back and have it insured and make the insurance over to him (Jackson). Witness' did not have the car insured. The company never gave witness a bill of sale to the car. Witness heard that the car was a stolen car, and went down to see about it, and the sheriff told witness that he had the ear on his books, and asked witness to keep it until he called for it. What the sheriff meant by having it on his books was that it was stolen proiierty. After the third note became due, Jackson wrote to witness about it, and witness went to see the sheriff of the County and offered to turn the car over-to him, and the sheriff wrote to Jackson, but did not got any answer. About the time the sheriff should' have received an answer, Jackson came with his attorney, and they and witness went to the sheriff’s office together. The sheriff told Jackson that he had' the car on his books as a stolen car which had been reported 'by one Rex Lewis, a salesman of the company, who was theivin jail. • Rex Lewis was the man who sold witness the car. The sheriff said that he got after Lewis so close that he turned State’s evidence and turned in a list of 150 oars as stolen cars, and the car in controversy was on the list. Jackson then wanted to know what witness would do about it, and witness replied, “If they ever straighten it up, I will- pay for it.” The sheriff then said, “Whenever you straighten it up, he is ready to settle with you,” and the sheriff also stated, “If you don’t, he won’t give'you anything. You have got to come clean.” The sheriff then asked Jackson how long he wanted, and Jackson.replied that he Wanted ten days. When the ten days were1 up, witness went to the sheriff and said, “Now, Jim, the ten days is up — what are you going to do about it,” and the sheriff replied, “Oh, yes, you go on, and let me know where you are at. ” • Witness waited until the ten days were up for Jackson to come clean. Jackson did not report at the end of ten days, and witness moved from Texas to Washington County, Arkansas. In Texas they require a 'bill of sale to be issued with a car. They did not give witness a bill of sale with the car, and Jackson’s attorney said, in the presence of the sheriff, that he knew that Jackson had violated the State laws of Texas when he did not giv.e witness a bill of sale for the car.

Olx cross examination, witness stated that when he left Texas he did not notify Jackson that he was leaving.' Witness had left the car in the hands of the sheriff for ten days. When witness bought the car, he did not ask for a bill of sale. Witness told Jackson, in the conversation in the presence of the sheriff, that he would pay for the car if Jackson proved by documentary evidence within ten days that he owned the car at the time he sold it. Jackson did not bring forward the evidence within ten days, and witness was then at liberty. Witness was asked if Eex Lewis, the agent for the company which sold him the car, had not been arrested and completely exonerated of all connection with the stealing of the car, and answered, “Well, I think he was in a few days.” Lewis Avas released about four days after he Avias arrested. The car was never actually taken from the Avitness. The sheriff told witness when he left Texas to leave the car there Avith him. Witness came to Arkansas, and before he did so he took the car up to the garage land turned the key over to the sheriff, and witness supposed that the sheriff had turned it over to Jackson. The car at that time was worth about $1,500. When witness left Norton, Texas, he did not tell J ackson where he was going. While witness was at Norton, Jackson frequently demanded payment of the notes, but witness did not pay them, and informed Jackson of that fact. Witness did not have the car insured for Jackson’s benefit, because he did not have the money to spare for that purpose.

Jackson testified that in the year 1920 lie was in the automobile business in San Angelo, Texas, under the name of Angelo Motor Sales Company, la partnership, composed of himself and one 'L. A. E'llis. The partnership employed Rex Lewis as a salesman, and Lewis sold a Paige automobile to Garter for the partnership for the Consideration of $2,500, evidenced by Carter’s notes for that amount. Witness bought out his partner, and was the owner of the notes. When the first note became due, Carter stated he could not pay the same, and witness granted him an extension of time. When the other notes came due, witness demanded payment, and Carter stated that he was unable to piay them. He made repeated promises to pay the notes, and never disputed the account in any way, but never paid the notes, and left Texas without paying them. Witness had a chattel mortgage on the car, and afterwards obtained possession of -the same. When witness took possession of the car, it was in a depleted condition. Witness advertised and sold the ear under the chattel mortgage after giving ten days ’ notice in the newspapers as prescribed by the mortgage. The car was sold to the highest bidder, and it brought the sum of $200, which was duly credited on Carter’s notes. When Carter sold his farm and left Texas, he did not give witness notice that he was leaving. Witness afterwards met him at Ballinger, Texas, and Carter’s excuse for not paying for the car was that he had found out through the sheriff that the car was a stolen car, and until that was straightened out he refused to make any payment on it. Witness offered to prove to Carter that he and his partner owned the car at the time it was sold to Carter. Witness exhibited a bill of sale to Carter from the Paige Motor Company, which bill of sale witness exhibited to the sheriff at Ballinger, Texas, who had the car in his possession. Carter left Texas without leaving his address with witness, or making any arrangements whatever for the settlement of his notes. Witness located Carter after he had left Texas through the agent of the Frisco Railroad Company at Fayetteville. Witness stated that, in a conversation between witness and the sheriff and Carter before ’Carter left Texas, Carter stated that if. he could get an affidavit from the peoplefromwhomwitness bought the car stating that witness was. the legal owner of the car at the time it was sold, he was ready to make .settlement for it, and that he would stay around Ballinger until witness got the affidavit. Witness got such affidavit, but in the meantime Carter had left Texas without paying his notes. Witness introduced in evidence as a part of his deposition the chattel mortgage executed by Carter to the Angelo Motor Sales 'Company on the automobile purchased by him from said company, and offered to introduce affidavits showing the bill of sale from the Paige Motor Company to the Angelo Motor Sales Company on the car which the latter company sold to Carter, The court excluded these affidavits.

L. A. Ellis testified that he was la partner of Jackson in the automobile business in the year 1920 under the name of Angelo Motor ¡Sales Company at San Angelo, Texas.. He corroborated the testimony of Jackson as to the sale of the car by their agent, Lewis, and that the partnership was afterwards dissolved, and that Jackson has succeeded to witness ’ share, of the assets of the business, including the notes in controversy. Witness stated that the partnership bought the car from the Texas Paige Company of Dallas, Texas, the regular distributing agent for the Paige automobiles,

Bex Lewis testified that he was employed by the Angelo Motor Sales Company, and corroboratedthe testimony of Jackson and Ellis in regard to the sale of the car in controversy by him to Carter. Witness stated that he sold Carter the car, and that Carter took the car and kept it and never paid for it; that he still owes for it.

A witness by .the name of Loveland testified .that he, Jackson and Carter and the sheriff of Bunnels County, Texas, had a conversation in the sheriff’s office, with reference to the legality of the sale of an automobile from the Angelo Motor Sales Company to Carter by Rex Lewis, in which conversation Carter stated that he would pay for the car immediately upon proof being produced that the car was not a stolen car at the time of its sale. Witness, at that time, was the attorney for Jackson. Witness obtained proof from the manufacturers of the car that the same had been sold by them to their Texas agent at Dallas, Texas, and also- proved from the Texas agent at Dallas that he had sold the car in question to the Angelo Motor 'Sales Company. Witness took that proof to the sheriff of Runnels County, who at that time had been put in possession of the car iby Carter before Carter left Texas, and witness then learned for the first time that there was a mortgage on the car in favor of the Angelo Motor Sales Company given by Carter to secure the payment of his notes to the Company, which mortgage was then on file with the county clerk of Runnels County, Texas.

Witness Carter, being recalled, testified that, after they took the car from witness, he never promised to pay them, and had 'no further communication with them about the car after they agreed to furnish the proof that they owned the same at the time of its sale. They never furnished-witness with a bill of sale that they got it from the Paige Motor Company to this day. Witness was down there at his home in Rkmnels County. Witness got the car, and never asked them for a bill of sale, but, under the laws of Texas, they were supposed to give it.

The court instructed the jury in effect that the burden of proof wias upon Carter to show that the consideration of the notes had failed ¡because of the fact that the car was a stolen car'when sold by the Angelo Motor Sales Company to Carter; that, if the jury found from the evidence thiat the notes were given for a stolen car, the verdict should be for Carter, and, if the jury failed to so find, the verdict should be in favor of Jackson; that it was a question for the jury under the facts and circumstances in evidence.

No objections were made by either plarty to the instructions of the court. The jury returned a verdict in favor of the defendant. Jackson filed a motion asking the court to render judgment in his favor, notwithstanding the. verdict, and also a motion for a new trial. The court overruled these motions and entered a judgment in favor of Carter, from which is this appeal.

The testimony is set forth at length above, and it shows clearly that there is no testimony to sustain the verdict. The burden of proof was on the appellee, and he wholly fails to prove that the car for which he executed the notes was stolen property at the time he purchased the same from the Angelo Motor 'Sales Company. The proof is not sufficient to show that the consideration for which the notes in controversy were executed had failed. The court therefore erred in not setting aside the verdict of the jury, and in not granting appellant’s motion for a new trial.

But § 6271 of Crawford & Moses’ Digest provides: “When a trial by .jury has been had, judgment must be entered by the clerk in conformity with the verdict unless it is special, or the court orders the case to be reserved for future judgments of consideration. ’ ’ And § 6273 provides : “Where, upon the statements in the pleadings one party is entitled by law to judgment in his favor, judgment shall 'be so entered by the court, though a verdict had been found against such party.” The facts of this record do not bring the case within either of the above sections of our statute. The verdict was not special, the case was not reserved by the court for future judgment or consideration, and there was no statement in the pleadings to justify the court in entering a judgment in favor of the appellant. Therefore, the appellant was not entitled to a judgment non obstante veredicto. “The motion in arrest of judgment in civil causes is unknown to our system of practice, and, where it does obtain, can 'be maintained only for a defect upon the face of the record, of which the evidence constitutes no part,” Collier v. Newport Water Co., 100 Ark. 47-52; Ryan v. Fielder, 99 Ark. 374. See also Schearff Distillery Co. v. Dennis, 113 Ark. 221-225. However, it is manifest that the cause Fas been fully developed, and, if the trial court had properly instructed the jury in accordance with the‘evidence, the appellant would have obtained .a verdict and judgment in his favor. Under § 2171 of C. & M. Digest this court has the power, when the judgment of the trial court hlas 'been reversed, to remand .or 'dismiss the cause, and enter such judgment upon the record as it may, in its judgment, deem1 just. Under the authority thus conferred 'by the above statute, it seems just to us that the appellant have judgment in his favor without delay and expense of another trial. For the error indicated, the judgment is therefore reversed, and judgment in favor of the appellant will be entered here for the amount found to ibe due on the notes at the time of the entry of such judgment. It is so ordered.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Goldsmith v. First National Bank of Ashdown.
    Opinion delivered December 21, 1925.
    1. , Limitation of actions — open account. — An action on a verbal guaranty of an open account for cotton advances, brought more than three years after the last item of the account, is barred by the statute of limitation of three years (Crawford & Moses’ Dig., § 6950).
    2. Limitation of actions — estoppel.—A defendant is not estopped to plead the statute of limitations unless it can be fairly said that he is responsible for deceiving the plaintiff and inducing him to postpone action upon some reasonably well-grounded belief that his claim will be adjusted if he does not sue, or that defendant will not avail himself of the statute of limitations.
    S. Frauds, statute of — estoppel.—A person is not estopped from pleading the statute of frauds by his conduct in failing to pay the debt of another which he has verbally promised to pay and is ■able to pay, when by his failure to pay no fraud in law has been perpetrated upon the party to whom the promise is made resulting in the latter’s injury.

      Appeal from Little River 'Circuit Court; B. E. Isbell, Judge;
    reversed.

      A. D. DuLaney and James D. Read, for appellant.

      Shaver, Shaver ds Williams, for appellee.
   Wood, J.

This is an action by the First National Bank of Ashdown, hereafter called appellee,, against A. Goldsmith, hereafter called appellant. The appellee alleged that the appellant was a stockholder and member of its board of directors and vice-president of. appellee, and was also, during the cotton season 1919 and. 1920, engaged in the cotton business; that during that season the appellee handled cotton accounts, paying to the buyer's of cotton money on their acceptances and talcing the warehouse receipts theref or, and charging the amounts to their respective accounts; that Julius Winters was. the nephew of the appellant, and also engaged in the cotton business during that season; that Winters was acting for the- appellant, and appellant was interested with him in the cotton business and controlled and distributed all the cotton that Winters bought; that appellant, at the beginning of the cotton season, represented to the 'directors of the appellee that Winters was his nephew and requested the appellee to carry his account during the cotton season of 1920, assuring the board that, if appellee would do so, appellant would give his personal supervision to said account and be responsible therefor; that, acting upon the appellant’s oral representations and statements, the appellee, during the cotton season of 1919 and 1920, furnished Winters a large sum of money to buy cotton; that during December, 1919, Winters sold all the cotton he then had on hand, and paid the advancements made by appellee to that date, and he then desired additional advancements on cotton, but the appellee’s cashier decided it was unsafe to continue advancing to Winters without more security than the cotton purchased, and took the matter up with the appellant. Whereupon the appellant informed the cashier that Winters’ account was all right, and asked the cashier to continue to advance to Winters, saying that the appellee was safe, as the account of Winters was the same as appellant’s own; that, with this assurance, appellee continued to make advances to Winters, and caused the appellant to make to appellee’s board of directors a statement to the effect that he (appellant) would be personally liable for any advances, made to Winters, and that Winters’ account would be the same, as his own; that during the cotton season appellant himself purchased considerable. cotton which was handled by him in the same manner as that of Winters, and appellant obtained large advancements upon cotton purchased by Winters from cotton brokers in Memphis; that the price of cotton declined, and when the cotton purchased by Winters was disposed of in October, 1920, he was owing to appellee a balance of $4,517.25, which remains unpaid, and Winters is wholly insolvent. It was alleged that the appellee would not have made the advances to Winters, had not the appellant personally guaranteed, as before mentioned, that he would pay Winters’ account if any loss occurred; that appellee knew that Winters was insolvent, and the credit was extended solely upon the oral statements of the appellant. The appellee prayed judgment for the amount of the indebtedness and interest.

In his answer appellant denied specifically all the material allegations of the complaint, and alleged that the credit extended by the appellee to Winters was extended to him wholly on his own account. He averred that the alleged promises, if made, were oral and amounted merely to the promise by the appellant to pay the debt of Winters, and therefore the appellant pleaded the statute of frauds. Appellant also alleged that the cause of action was barred by the three-year statute of limitations.

The Cause was tried by a jury, and, after hearing the evidence and instructions of the court, the jury returned a verdict in favor of the appellee in the sum of $4,517. Judgment was entered in favor of the appellee in that sum, from which judgment is this appeal.,

The conclusion we have reached on the, issue as to whether the appellee is barred from maintaining this action, by the three-year statute of limitations makes it unnecessary to discuss the testimony and instructions -of the court on the issues as to whether or not the amount claimed by the appellee was an original undertaking on the part of the appellant. Fior, conceding that the testimony was sufficient to sustain the verdict on that issue, and that there was no error in the court’s charge submitting it, nevertheless we are convinced that appellee’s right of action against appellant as for an original undertaking is barred by the three-year statute of limitations. Section 6950, C. & M. Digest.

This action was*inistituted on October 3,1923. Treating the account in controversy as an original undertaking of the appellant, the testimony of the cashier of the appellee at the time the account accrued shows that the account stood on the books of the appellee in the name of Julius Winters, and that the last cotton acceptance was paid by the appellee for him on February 28, 1920. The cotton acceptances by the appellee for Julius Winters were all acceptances on demand. Therefore, if this account was an original undertaking of the appellant, he was due the appellee the amount thereof on February 28, 1920. As this was an open account, payable on demand, the statute of limitations began to run on that day in favor of the appellant against the appellee. The balance due appellee on cotton acceptances, as shown by the account of Winters on appellee’s books, was $4,288.53, and for this sum Winters executed his note on October 18, 1920. There was a renewal of this first note in the sum of $4,000 executed by Winters to appellee Jime 18, 1921, and another note in the sum of $517.25 executed by Winters to appellee on June 22, 1921. The cashier of appellee testified that these notes were obtained at the request of appellant and of all the board of directors of the appellee. The witness testified that he made every effort in the world to .get Winters to secure the original note and the renewal thereof for appellant’s protection. Witness wrote letters to Winters at the instance of the appellant, and the appellant wrote letters himself to Winters urging a settlement of the account.

There was testimony to the effect that, at a meeting of the hoard of directors of the appellee as late as December 20 or 22, 1919, the board was going over the cotton accounts of the appellee, and some of these accounts were being severely criticised, the appellant making the principal criticisms. It was suggested by one of the members of the board that all individuals having accounts had property back of them except Julius Winters, and that he had no property. Whereupon, the appellant said, “Do not bother about that; I am looking after that; it is just the same as mine.” That was said concerning the Julius Winters account with the appellee at that time, and after that the appellee continued to make advances to Winters on his cotton account.

Allan Winham, the president of the appellee, testified that he attended the annual meeting of appellee’s board of directors on January 10, 1920, and again about February 10, 1920. The appellant had called on him about the first of 1920 or the latter part of 1919, and had explained the status of the cotton accounts of the appellee. When the witness went over to Ashdown about January 10, he and the appellant discussed the cotton accounts of the appellee, and witness insisted that deeds of trust be made securing these accounts by various individuals who bad property, and they were so made. Witness asked the appellant about the property of Julius Winters, and appellant stated that Winters had no property at that time, but that he (appellant) was looking after that account, and that witness need not worry about that — that it would be taken care of, and the appellee would not take any losses on it. Witness felt that the account was safe because appellant was solvent. After that at the meetings of the board this account was discussed, and appellant stated that he was doing all he could to get Winters to pay it; that he had written Winters letters urging him to pay it. Witness had conversations with appellant at practically every meeting of the board until appellant went off of the board as to the best means of securing payment of this account. Appellant was present at these meetings, and seemed to 'be much embarrassed when the account was discussed. In 1923, just before Christmas, in a conversation with witness, appellant stated that he did not owe the account. Until that time he had never disavowed the account until he was sued, but in this conversation just before Christmas, 1923, he said that he didn’t have any account; that it was Julius Winters’ 'business; that it was not appellant’s debt. The witness stated the matter was delayed because appellant was the richest man on the board of directors, and was its vice-president, and had been with the appellee a long time. The country was passing through the period of 1920, and the directors did not feel like they should have a family row, and they wanted to work the account out of Julius Winters. The appellant was making an effort to get Winters to pay the account, and witness desired to give him time to do that. The appellee did not bring suit until Winters went into bankruptcy.,

The testimony of Winters was to the effect that the appellant went after him hard about this matter, and tried to get him to execute notes. Appellant was vice-president of the appellee, and told witness that it was embarrassing to him for the notes not to be paid. Appellant was witness’ uncle.

Now, conceding that the account in controversy was the debt of appellant as an original undertaking on his pant to pay the appellee, the statute of limitations began to run in appellant’s favor, as we have seen, on February 28,1920, ■when the last cotton acceptance was paid by the appellee for Winters. Giving the above testimony its strongest probative force in favor of the appellee, it does not tend to prove any facts sufficient to toll the statute'of limitations. The most that the testimony tends to prove is that the appellant would take care of "Winters’ account; that he would use his ¡best efforts to have Winters pay the -same, and to urge Winters to sign and renew notes for the amount of the account. The testimony tends to prove that the appellant- did all- this, but there is not a particle- of testimony tending to prove that after February 28, 1920, the appellant said or did anything calculated to cause the appellee to believe that the appellant acknowledged the indebtedness as his own, and that, if appellee would not institute action' thereon, the appellant would pay the same. There was not even a verbal promise upon the part of the appellant after February 28, 1920, to pay the account, much' less any written acknowledgment that the debt was his, and a written promise to pay the same. Nor does the testimony justify the inference that, after the statute of limitations began to run, and before the statute bar attached, the acbs- and declarations of the appellant were calculated to mislead the appellee into the belief that appellant would pay the debt for Winters, if he did not, and that by reason of such conduct on the part of the appellant, appellee delayed faction against the appellant until after the three years from the time the debt was due.

Section 6965, C. & M. Digest, (Revised Statutes, c. 91, § 14), provides that “no verbal promise or acknowledgment shall be deemed sufficient in any action founded on simple contract whereby to take- lany case out of the operation of this act, or deprive the party of the benefits thereof.” Unless estopped by his conduct, the ¡appellant has the right to invoke, and is entitled to, the benefit of this statute. In Klass v. Detroit, 129 Mich. 35, it is held that -a defendant is not estopped to plead the statute of limitations unless it can be fairly said that he is responsible for deceiving the plaintiff, and inducing him to postpone action upon some reasonably well grounded belief that his claim will be adjusted if he does not sue.” Mr. Freeman, in 95 Am. St. at p. 411, in an exhaustive note to above case, in which a great array of authorities is collated, states: “Notwithstanding some conflict in the authorities,-the great weight of legal adjudication and the universal trend of modern cases firmly establish the rule that an agreement or promise, whether oral or written, by the debtor not to plead the statute of limitations, made before the expiration of the statutory period, and relied upon by the creditor, until after the statutory period has expired, operates as an estoppel in pais as against the debtor, and precludes him from interposing the defense of the statute to clef eat the action. ’ ’ * * * ‘ ‘ The rule, ’ ’ continues Mr. Freeman, “is thus well stated in 1 Wood’s Limitations of Actions, 2d. ed., § 76, as follows: ‘While a promise not to plead the statute, whether made before or after the debt is barred, does not amount to an acknowledgment thereof or a promise to pay it, yet', if made before the debt is barred, and in consideration of forbearance to sue, and the creditor does forbear to sue upon the faith of the promise, it is binding upon the debt- or, and at least has the-effect to keep the debt on foot until the statutory period, dating from such promise, expires, either by way of estoppel, or as a conditional promise to pay the debt in case the plaintiff proves it. ’ ”

. This court in Baker-Matthews Mfg. Co. v. Grayling Lbr. Co., 134 Ark. 351, at page 355, stated the rule by quoting from 17 R. C. L. p. £4, as follows: “A debtor has frequently been held to be estopped from relying on the statute as a defense where, by ácts of a fraudulent character, he has misled the creditor and inducedhimto refrain from bringing suit within the statutory period. And if a defendant intentionally or negligently misleads a plaintiff by his misrepresentations, and causes him to delay suing until the statutory bar has fallen, the defend7 ant will be estopped from pleading the statute of limitations. And the prevailing view seems to be that the doctrine of estoppel applies where the creditor, before the debt is barred, is lulled into security by the oral promises of the debtor that he will not avail himself of the statute of limitations, and suit is delayed by reason thereof.. It is not necessary that the debtor should intend to mislead, but, if his declarations are such as are calculated to' mislead the creditor, who acts upon them in good faith, an estoppel will be created.”

Applying this doctrine to the facts disclosed by this record, we find that there was no express promise upon the part of the appellant to the appellee not to avail himself of the statute of limitations if the appellee delayed the action beyond that period, nor was there anything in appellant’s 'conduct calculated to induce the appellee to believe that the appellant would settle appellee’s claim, as his own debt, if the appellee refrained from instituting the action, and tending to prove that the failure of the appellee to bring the suit within the statutory period was bottomed upon acts or declarations of the appellant to .the effect that the debt wias his own, and that he would see to its payment. To sustain their contention that the appellant is estopped from claiming the benefits of the statute of limitations, counsel for appellee rely upon a quotation from 17 R. C. L. p. 929 and the cases of Bank v. Parrott, 125 Cal. 472; 58 Pac. 164; 73 A. S. R. 64, and note, and also Mudd v. Harper, 1 Md. 110, 54 Am. Dec. 664. We have examined these authorities, and find that they are all differentiated on the facts from the case at bar, land it would unduly extend this opinion to comment upon them. We conclude, therefore, that, under the facts of this record, the' appellee’s claim, treated as an original undertaking of the appellant, is barred by the statute of limitations.

Learned counsel for- the appellee contend that, even though the claim, in controversy be not the original debt of appellant, nevertheless the appellant is estopped by his conduct from denying liability for such claim, and of availing himself of the plea of the statute of .frauds. Section 4862, C. & M. Digest, provides in part as follows: “No action shall be brought to charge any person upon any special promise to answer for the debt, default or miscarriage of another, unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized. ’ ’

The debt of Winters to the appellee was evidenced by a note signed by Winters. While there is testimony tending to prove that the appellant wrote letters to Winters urging him to pay the debt, and that letters Were written by others at' the instance of appellant urging Winters to sign the notes evidencing the indebtedness to the appellee, yet this testimony does not warrant the inference that the appellant authorized Winters to sign these notes in acknowledgment that the debt was the debt of appellant instead of Winters, .or that it was their joint obligation. .There was testimony in the record tending to prove that, after Winters had gone to the limit of his credit with the appellee on his cotton .account, the appellant, who was then vice-president of appellee, stated to the cashier that Winters might want to buy more cotton, and to let him have the money; that it would be all right to continue the advances to Winters; that his account was just the same as appellant’s, and that appellant was looking after it. After this statement made by appellant to the cashier of appellee and its board of directors, the appellee did make the advances to Winters, which are the subject-matter of this action.

The above testimony is exceedingly pertinent and cogent, tending to prove that the advances made to Winters by the appellee were at the instance and request of the appellant, and that it was an original undertaking on the part of the appellant to pay the same, and justified a verdict to that effect, as we have already stated. But there was testimony also tending to prove, and to justify a finding to- the effect, that the debt to appellee was the debt and original undertaking of Winters, and not that of appellant. Therefore, to test the issue as to whether or not appellant’s plea of the statute of frauds was well taken, we must treat the debt as that of Winters. Giving the above testimony its strongest probative force in favor of the appellee on the issue of the statute of frauds, it only tends to prove thiat there was a verbal promise on the part of the appellant to pay appellee the debt of Winters. The appellant is the uncle of Winters; the testimony shows that he is abundantly able to pay Winters’ debt to the appellee; he was a trusted officer of the appellee, its vice-president, and a member of its board of directors, and had intimate and close business relations with them. It was doubtless because of this situation and of the confidence appellee’s board of directors, and especially its president, had that appellant would fulfill his promise, that caused them not to exact of him a written obligation or promise to pay the debt of Winters. However reprehensible in morals appellant’s conduct may have been under the circumstances, nevertheless it cannot be said that he perpetrated any fraud in law upon the appellee in not making a written promise to pay the debt of Winters. In the eyes of the law appellee’s board of directors had knowledge of the statute of frauds, as well as the appellant. If it had been proved by the appellee that the appellant had derived a personal financial benefit by reason of his promise to pay Winters’ debt, then there would be some plausibility in the contention of counsel for appellee that appellant wias estopped by his conduct' from repudiating such promise. But it occurs to us, in the absence of proof of fraud on the part of the appellant resulting in direct financial benefit to appellant and consequent loss to the appellee, the appellant ■is not estopped from claiming the benefit of the statute of frauds. A person is not estopped from pleading the statute of frauds by his conduct in failing to pay the debt of another which he has verbally promised to pay, and is able to pay, when 'by his failure to pay no fraud in law has been perpetrated upon the party to whom the promise is made resulting in injury to such party. Not to so hold would be in the teeth of the statute of frauds and a nullification of such statute by judicial interpretation.

We have examined the cases cited from our own court, and relied upon by appellee’s counsel in support of their contention that appellant is estopped by his conduct from claiming the benefit of the statute of frauds, and these cases are differentiated by the facts from the case at bar. - ■

We therefore conclude that, treating the appellee’s claim as the debt of Winters, .appellant’s plea of the statute of frauds under the evidence presents a complete defense, because there was no proof that appellant promised in writing to pay such claim. 'So, whether the undertaking be original or collateral, appellee,- it appears from the undisputed facts, is cast on either horn of -the dilemma. Therefore the trial court erred in not granting appellant’s prayer for peremptory instruction in his favor.

The .judgment of the circuit court- is therefore reversed, and, inasmuch as the cause seems to have .been fully developed, judgment will be entered here in favor of the -appellant. ■ ■

Mr. -Justice Humphreys dissented.


author: Hart, J.

text:
    Hays v. State.
    Opinion delivered December 21, 1925.
    1. Criminal law- — improper argument op state’s attorney. — In a prosecution for the statutory crime of carnal abuse, the argument of special counsel for the State that .the prosecutrix was last heard from in a city -on the Mexican ¡border, that defendant had been in Mexico, and that the presumption was that'defendant had • carried her there, was prejudicial error in view of the court’s refusal to reprimand counsel or to interfere 'with - his, argument. ■
    2. Criminal law — impeaching rill o-p exceptions— On- appeal the court is governed by the bill of exceptions signed by the trial judge, which .cannot be impaired by affidavits aliunde.

    Appeal from' Clark Circuit Court; James II. Mc-Collum, Judge;
    reversed.

      T. N. Wilson, Steve Corrigan and Randolph P. Hamby, for appellant.

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

Jid Hays prosecutes this appeal to reverse a judgment against him for the statutory crime of carnal abuse.

The first assignment of error is that the evidence is not legally sufficient to support the verdict.

No useful purpose could be served by setting out the evidence in the record. We deem it sufficient to say that the evidence for the State, if believed by the jury, warranted it in finding that the defendant had sexual intercourse with a girl under the statutory age. Hence this assignment of error is not well taken.

The next assignment of error relates to the argument of the special counsel for the State in his closing argument to the jury. On this point we copy from the record the following: “This girl, who they called the injured party, is now gone. What do the facts show, gentlemen of the jury? That Jid Hays was down in Mexico, and the last time this girl’s sister heard from her she was at El Paso, on the Mexican border. The presumption is that Jid Hays had her carried there. I believe he had her carried down there, ;and that she is somewhere down there now. She may have been thrown in the Rio Grande River. I believe she is down there, and the presumption is that he had her carried down there.”

Counsel for the defendant objectéd to the argument on the ground that there was no evidence whatever tending to show that the defendant had the girl carried off, and asked the court to instruct the jury not to consider the argument on this point. The court said: “Gentlemen of the jury, you remember what the evidence in the case is, and you will try the case according to the evidence of the witnesses.”

Counsel for the defendant again objected, and the court overruled his objections, and told the special prosecutor to go ahead. The action of the court amounted to an approval of the argument of the special counsel for the State, and, we think, was prejudicial to the rights of the defendant.

The defendant was a witness for himself, and testified that he left home and went down into Mexico, and stayed there 18 months because public sentiment was against him. He denied that he knew where the girl with whom he was charged with having sexual intercourse was, or that he knew that she had been away at all. He denied seeing her while he was in Mexico;

The sister of the girl with whom the defendant is alleged to have had sexual intercourse testified that she had a letter from her about a year ago from El Paso, Texas.

Another witness for the State testified that at one time the defendant asked him to send a money order for $20 to the girl in question to Memphis, Tlenn., and that he did so. This was before the defendant went to Mexico.

This testimony was admissible as evidence, which it was the exclusive province of the jury to weigh, and in connection with all the testimony to' determine what degree of weight and credit should be accorded it. The jury was not required to attach any weight or credit to this testimony merely because it had been admitted by the court; but it must determine for itself its credibility and weight in connection with all the circumstances and other testimony in the case. The evidence is not aided by any presumption of the truth of it. The deduction from the facts in the evidence in the whole case was for the jury, and the court, by sanctioning the argument of special counsel for the State, in effect instructed the jury that, under the facts proved, there was a presumption that the defendant had carried the girl in question to El Paso. The special counsel stated further that the girl may have been thrown in the Rio Grande, and that he believed that the defendant had carried her down there, and repeated to the jury that the presumption is that he had carried her down there. From this the jury might infer that there was sufficient proof to show that the defendant had carried the girl to El Paso, and that the burden of proof was upon him to show that he1 had not carried her down there. Now, the 'burden of proof was upon the State to show the guilt of the defendant beyond a reasonable doubt, and presumption of innocence attended him throughout the trial. The girl in question was not present at the trial, and the remarks of .special counsel that, under the circumstances, the «presumption was that he had carried her away was necessarily prejudicial to the rights of the defendant. There is nothing 'whatever to show that he had anything to do with her going to El Paso.

Again special counsel for the State said that the defendant had the money to do it, and that he believed that he did do it. He was again referring to' the fact that the defendant had carried the girl to El Paso.

This court has been very careful to guard the rights of accused persons, and counsel for the State is never allowed to state facts which are not evidence for the purpose of securing- a conviction. Counsel for the State not only stated that he believed that the defendant had carried the girl to El Paso, but that the presumption was that he had carried her there.

As above stated, the court refused either to reprimand the attorney or to interfere with him in any way in making this kind of an argument. This amounted to an approval of the argument, and constitutes such prejudicial error as calls for a. reversal of the judgment. Doran v. State, 141 Ark. 442; Brown v. State, 143 Ark. 523; Crosby v. State, 154 Ark. 20; and Hughes v. State, 154 Ark. 621.

There has been brought to our attention by writ of certiorari an affidavit from special counsel for the State and other persons to the effect' that he did not tell the jury thiat there was a presumption that the defendant carried the girl with whom he is charged to have had sexual intercourse down to El Paso, Texas, or that he believed that he had carried her down there. We cannot consider these affidavits, however. We must be governed by the bill of exceptions which is .signed by ■ the circuit judge trying the case, and which must be taken as the record in .the case. So far as the record discloses, special counsel for the State used the language attributed to him, and we cannot consider his denial that he made the argument.

It follows that for the error in allowing the improper argument to go to the jury as indicated in the opinion, the judgment will 'be reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Masters v. Haynes.
    Opinion delivered December 21, 1925.
    1. Adverse possession. — permissive occupancy. — One already in permissive possession of a part of the land in controversy could not claim adverse possession under a quitclaim deed acquired as color of title until he first relinquished his permissive possession and retook possession under the. deed. ■
    2. Appeal and error — right to complain. — One having no interest in a tract of land will not be heard to complain of a decree reforming a deed to his opponents, though the grantor in such deed was not a party.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Avery Masters brought this suit in equity against Wallace Haynes, Mrs. Wallace Haynes, and Sherman Masters to enjoin them from cutting timber on a certain tract of land in Woodruff County, Ark., and to recover damages for the timber already cut by them on said land* ' ■ '
    The defendants filed an answer in which they set up title in the defendants, Mrs. Wallace Haynes and Sherman Masters, and asked for a reformation of the deed whereby said land was conveyed to her so as to describe it correctly.

      According to the testimony for the plaintiff, on the 23rd day of October, 1913, he secured a quitclaim deed to said land for the purpose of using’ it as color of title, so that he might secure title to the land by adverse possession. The plaintiff, Avery Masters, knew, and the grant- or in the quitclaim deed knew, that the latter had no title whatever to the land. They stated, however, that they did not think the land belonged to any one, and the plaintiff desired to acquire title to it by adverse possession. The land is on the east bank of White River in Wood-ruff County, Ark., and the original plat shows that it only contained about 15 acres. Additional land has been added to the tract by accretion, and it now comprises about 96 acres. The plaintiff lived on an adjoining tract of land at the time he secured the quitclaim deed in question, rand about five acres of the land involved in controversy was in his field, and he cultivated it. He after-wards had about ten acres additional cleared. He denied that he had occupied the land in question by permission from the widow of his brother, who claimed to own it, and said that he had tried to pay' taxes on the land since he had acquired a quitclaim deed to it, but that some one had always paid the taxes ahead of him.
    According to the testimony of Mrs. Wallace Haynes, the land in question had belonged to Wesley Masters, a brother of Avery Masters.- Mrs. Wallace Haynes married Wesley Masters in April, 1884, and at that time he was living on the land in question, and had been living there for several months. Her occupation of the land has been continuous ever since- that time, and her husband paid the taxes on the land until he died in 1896. After her husband’s death, she continued to occupy the land as her homestead, and to pay the taxes- thereon. In 1898 she married Wallace Haynes, and he came to live on the land with her. Prior to his death her husband built a new home on an adjoining tract of land and moved in it, but they continued to claim the- land in question as a part of their homestead. Their homestead had 65 acres of cleared land on it, and a part of the cleared land was on the tract in controversy. They cultivated the cleared land continuously from 1884 up to the present time.
    Wesley Masters received a deed to the land in controversy from M. A. Harris, who lived on the land' at the time he conveyed it to Wesley Masters. Harris then left the country, and has not been heard of for several years. The deed from M. A. Harris and wife to Wesley Masters described the land as being in the S. E. % of section 13, when it should have been in the S. W. % of section 13.
    Mrs. S. E. Hughes also testified that M. A. Harris lived in a small house on the river about 75 or 100 yards from where Mrs. Wallace Haynes now lives. After Harris left the house Wesley Masters moved into it, but she does not know whether he 'bought the place from Harris or not.
    Wallace Haynes corroborated in all respects the testimony of Mrs. iWallace Haynes.
    The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of the plaintiff be dismissed for want of equity. It was further decreed that the quitclaim deed to the plaintiff be canceled as a cloud on the title of Mrs. Wallace Haynes and Sherman Masters, and that the deed from M. A. Harris to Wesley Masters be reformed, so as to describe the land correctly.
    To reverse the decree the plaintiff has duly prosecuted this appeal.

      W. J. Dungcm, for appellant.

      J. F. Summers and J. F. Summers, Jr., for appellee.
   Hart, J.,

(after stating the facts). The decision of the chancery court was correct. According to the testimony of the plaintiff himself, about five acres of the land in controversy was in his field, and he was cultivating it at the time he obtained the quitclaim deed. He acquired the quitclaim deed for the very purpose of using it as color of title fo obtain title to the land by adverse possession. Before he could do this he should have relinquished his possession of the land and have again taken possession of it under his quitclaim deed. Instead of doing this, he continued in possession of the five acres in the same way as before securing the quitclaim deed. According to the testimony of Mrs. Wallace Haynes, he was holding this possession'by permission from her. All the attendant circumstances corroborate her' testimony. Wesley Masters, the brother of Avery Masters, lived on the land from 1884 up to a short time before his death in 1896. He cultivated the cleared land, and paid taxes on all of it. Then he built a new house on an adjoining tract, but continued to cultivate the cleared land, and to pay the taxes on all of it. After his death his widow continued to cultivate the cleared land, and to claim all of it as a part of her homestead. She also continued to pay the taxes on the 'whole tract.

It is true that she first testified that M. A. Harris had conveyed the. land in question to her husband, and afterwards a deed was found on record which showed that Harris had conveyed to Wesley Masters an adjoining tract of land. The evidence, however, shows that Harris did not own the adjoining tract of land, and it is fairly inferable that he intended to convey to Wesley Masters the tract, of land in question, and by mistake described an adjoining tract. This is shown by the fact that Harris lived on the tract in question at the time he executed .the deed to Wesley Masters, and that he moved off of the land when he executed the deed, and Wesley Masters moved into the house which Harris had vacated.

It is true that under the rule announced in Ward v. McMath, 153 Ark. 506, Harris was a necessary party in a suit to reform the deed executed by him to Wesley Masters; but the plaintiff is not in any wise prejudiced by the action of the court in reforming the deed. The reason is that .he had no title whatever to the land, and is in no wise interested in it. Under the evidence presented in the record, M.. A. Harris intended to convey the land in controversy to Wesley Masters, and 'by mistake conveyed Another tract. An equitable estate in the land, however, passed to Wesley Masters, who died intestate. Mrs. Wallace Haynes, his widow, and .Sherman, Masters, his son and sole heir at law, had a right to protect their interests in the land in the present suit. Knight v. Glasscock, 51 Ark. 390.

In order to protect their equitable estate in the land, the chancery court properly dismissed the complaint of the plaintiff for want of equity, and canceled the quitclaim deed which had been executed to him as a cloud upon the equitable title of Mrs. Wallace Haynes and Sherman Masters.

It follows that the decree will be affirmed.


text:
    Bilyeu v. Wood.
    Opinion delivered December 21, 1925.
    1. Appeal and error — conclusiveness of chancellor’s findings.— Chancery cases are tried de novo on appeal, and findings of fact are allowed to stand, unless they are clearly against the preponderance of the evidence.
    2. Deeds — mental incapacity. — To invalidate a deed on the ground of the grantor’s mental incapacity, the proof must show that the grantor was incapacitated to understand and comprehend the nature and consequences of his act.
    3. Deeds — mental incapacity. — In a suit to cancel a deed on the ground of the grantor’s mental incapacity, a finding that the grantor was not mentally incapable held sustained by the evidence.
    4. Deeds — mental incapacity — burden of proof. — In a suit to set ■aside a deed on the ground of the grantor’s mental incapacity, the burden is on plaintiff to prove mental incompetency.
    Appeal from Ouachita Chancery Court, First Division; J. T. Stevens, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Deloris Bilyeu brought this suit in equity against N. N. Wood and others to cancel a deed on the ground that it was executed while she was a minor, and also that she was mentally incompetent.

      Mattie Burris died, leaving surviving her two children, Lola, aged four, and Deloris, an infant. Mrs. Ida Bell, a sister of Mattie Burris, took the children and reared them as a part of her own f amily in Ouachita County, Ark. John Bell, her husband, had mortgaged a part of 'his land to M. P. Watts and T. J. Watts, who were merchants at Camden, Ark. After the death of her husband Mrs. Bell entered into negotiations with M. P. Watts and T. J. Watts' to sell them 160 acres of land belonging to her husband’s estate, and 240 acres belonging to her nieces, Lola and Deloris Burris. Her husband’s estate owed T. J. Watts and M. P. Watts $2,000, which was paid, and the balance of the purchase price and the sum of $1,300 was paid to Mrs. Ida Bell. At the time the sale was made, Lola was 21 years old and Deloris was 16. The disabilities of Deloris as a minor were removed for the express purpose of enabling her to convey the land to M. P. Watts and T. J. Watts. Mrs. Ida Bell raised the girls until they were grown. Lola Burris was sent to a business college at Little Rock, and is working in Little Rock at the present time. She is now 25 years of age, and recognizes that she has conveyed all of her interest in said land by the deed in question. Deloris went through the eighth grade at school, and Mrs. Bell offered to send her to a business college, but she refused to go. She afterwards married a man named Bilyeu, and had two children by him, one of whom is now living. On the 18th day of May, 1922, Deloris Bilyeu executed a quitclaim deed to said land to M. P. Watts and T! J. Watts for a nominal consideration. This was done for the purpose of clearing the title of M. P. and T. J. Watts. The order of the probate court by which the 'disabilities of Deloris Burris as a minor were removed for the purpose of executing a deed to the land in question did not show that the minor was a resident of Ouachita County where the order was made, and for that reason the order declaring the removal of her disabilities was void within the rule laid down in Ilindman v. O’Connor, 54 Ark. 627.

      .The deposition of Deloris Bilyen was taken in 1922, and at that time she said she was 19 ' yeans of age. According to her testimony, she signed -the quitclaim deed to T. J. and M. P. Watts at the instance of her aunt, Mrs. Ida Bell., She 'did not know that she was signing a deed, and supposed that she was signing a paper to show Where she lived in 1918, at the time the order of the probate court removing her disabilities as a minor was made. She did not read the deed over, and signed it because of the love and confidence she had-in her aunt who had raised her. On her cross-examination she stated that she was in the seventh and eighth grades at school when she quit, and then was studying spelling, grammar, arithmetic, geography and history. She was recalled as a witness, and examined as to her mental capacity. ’She could not recollect, or did not know, but few of the prominent men in the current history of the United States. .'She said .she did not know how many states were in the United States, or who was the first president of the United 'States. .She had heard of Woodrow Wilson, but said that she did not know who he was.
    G. S. Murphy was also a witness as to her mental condition. According to his testimony, her mental condition was not very good, and she had the mind of a child about seven or eight years old., The witness has known Deloris all of her life, and based his opinion on hearing her talk and observing her manner.
    J. A. Bilyeu, her father-in-law, was also a witness as to her mental condition. According to his testimony, her mind had not developed more than that of a child seven or eight years of age. ‘His opinion was based upon seeing her daily since her marriage to his son. They lived with him about five months after his son married Deloris.
    Tom Goodwin had known her all of her life, and according to his testimony .she talked more like a child about ten or twelve years of age than a grown person.
    A physician who qualified as an expert, and who had had twenty years ’ experience as a specialist in the treatment of nervous and mental diseases, examined her and testified that she had the mind of a child seven, eight or nine years old. He gave her what is known as the BinetSimon test to determine 'her mental age. He described the test minutely, and said that he was positive that her mind was only developed to about the eight and a half years old period.
    Mrs. Ida Bell was a witness for the defendants on the question of the mental condition of the plaintiff. According to her testimony, Mr. Watts told her that the record did not show .that Deloris lived in Ouachita County at the time the probate court made an order removing her disabilities as a minor • in 1918. Watts wanted Deloris to sign a quitclaim deed to the land in order to make his title good. She told Deloris that this was for the purpose of -correcting the title, and Deloris readily signed it. The mother of Deloris died in 1902, and Mrs. Bell immediately took her two children, and raised them as a part of her own family. Mrs. Bell had six children in all, and testified that Deloris had just as good a mind as any of them. She went through the ninth grade in school, and was just as smart as any of the children. She quit school because she wanted to marry.
    O. C. Hays testified that he knew Deloris Bilyeu well and that he never saw anything wrong with her mind. She was just like the rest of the girls that he knew.
    A daughter of Mrs. Bell also testified that there was nothing wrong with her mind, and that she had as good a mind as any of Mrs. Bell’s children.
    A young lady who had taught her .said that she never knew or heard of anything being wrong with the mind of the plaintiff.
    F. A. Laney, a school teacher, also testified that he never noticed anything wrong with the plaintiff mentally, and that she was a normal girl. He said that she was not very apt to learn at school, but that he did not consider there was anything wrong* with her mind.
    A physician who met the plaintiff when he was called to attend her mother-in-law, and who afterwards attended her in childbirth, testified as to her mental condition. He said that, while he had never made an examination of her as to her mental condition, he had seen and talked with her a great many times, and did not observe any defect in her 'mind- He talked with her frequently, and she appeared absolutely normal to him.
    The chancellor found the issues of fact in favor of the defendants, and it was decreed that the complaint of the plaintiff be dismissed for want of equity.
    To reverse that decree, the plaintiff has duly prosecuted this appeal.

      Martin & Martin and J. W. Warren, for appellant.

      J. T. Sifford, J. E. Gaughan, E. E. Godwin and T. J. Gaughan, for appellee.
   Hart, J.,

(after stating the facts). ' On appeal chancery cases are tried de novo, and the findings of fact by the chancery court are allowed to stand unless they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465.

Tb invalidate a deed on the ground of the grantor’s mental incapacity, the proof must show that the grantor was incapacitated from intelligently comprehending and acting- upon the affair out of which the transaction grew, and that he did not intelligently understand and comprehend the nature and consequences of his act. In other words, the mental capacity at the time of signing a deed Sufficient to comprehend the nature of the transaction is the standard fixed by the law for determining the mental competency of the person signing the deed. Kelly’s Heirs v. McGuire, 15 Ark. 555; Pulaski County v. Hill, 97 Ark. 450; McEvoy v. Tucker, 115 Ark. 430; and Reaves v. Davidson, 129 Ark. 88.

Tested by the principles of lav7, announced above, it can not be said that the chancellor erred in finding the facts to be against the plaintiff.

Mrs. Bell, the aunt of the plaintiff and her sister, took them when their mother died, and raised and educated them as a part of her own family. When her husband died Mrs. Bell formed the idea of selling her husband’s land together with the land which her nieces had inherited from their mother for the purpose of getting out of debt, and moving to another place. The land of the minors was of but little value- The timber had been cut off of it, and none of it was in cultivation. All the lands were sold for $7.50 per acre, but the evidence phows that the part of the lands which belonged to the estate of the husband of Mrs. Bell was much more valuable. The price paid for the lands was an adequate one, and the sale was void as to the plaintiff only because the order removing her disabilities as a minor did not state that she was a resident of the county in which the order was made. To correct this defect in the title, the quitclaim deed in question was executed. The land 'became more valuable on account of the discovery of oil in the vicinity, and the plaintiff seeks to set aside the quitclaim deed on the ground that she signed it on account of the love and confidence she had in Mrs. Bell, and on the further ground that she was not mentally competent to sign a deed. She states that she did not know that she was signing a deed.

On the other hand, Mrs. Bell and Watts testified that she knew she was signing a quitclaim deed for the purpose of curing a defect in the title of Watts. In other words, they explained to her that the probate order removing her disabilities as a minor was void because it did not state that she was a resident of the county in which it was made-

The chancellor made an express finding of fact in favor of the defendants on this phase of the case, and it can not be said that his finding is against the weight of the evidence so that it must be set aside on appeal.

The question which has given us the most concern is whether or not the plaintiff was mentally competent to execute the quitclaim deed in question. According to the testimony of a .specialist in mental diseases, her mind had never developed beyond the mind of a child eight and a half or nine years old, and consequently she did not understand the nature of her act when she signed the quitclaim deed. His testimony is corroborated by that of her father-in-law, and two other witnesses who knew her well. On the other hand a physician who attended her in childbirth, and who knew her very well, testified that while he did not make any mental examination of the plaintiff, he talked with her frequently, and she appeared absolutely normal to him. He said that he had seen her a great many times and talked with her, and did not see any defect in her mind. Mrs. Bell, who raised the plaintiff, and one of her children both testified that the plaintiff had a normal mind, and that her mental condition was as good as that of any other of the children. Several other witnesses who knew her well also testified that her mental condition appeared to be normal.

The undisputed evidence shows that in the first instance the land was sold for an adequate price. The sister of the plaintiff, who was of lawful age and signed the deed, refused to take any part in trying to set it aside. It is true that she was not examined as to the mental condition of the plaintiff; but it must be remembered that the burden of proof was upon the plaintiff to show that she was mentally incompetent to execute the deed. The fact that the sister refused to have anything to do with setting aside the deed is a circumstance tending to show that she did not believe that there was any undue influence used in procuring it, or that the plaintiff was mentally incompetent when she signed it. She testified in positive terms that she had conveyed to Watts her interest in the land, and had no sort of right to invalidate the deed. This tended ho show that she believed the consideration was an adequate one, and that the original transaction was free of fraud.

The result of our views is that, in the application of the rules of law declared above to the facts of the case, it can not be said that the decree of the chancellor was wrong, and it will be affirmed.


author: Smith, J.

text:
    Owens v. State.
    Opinion delivered December 21, 1925.
    1. Homicide — self-defense question for jury. — Where evidence was conflicting .as to whether defendant shot deceased in self-defense, a question for the jury was presented.
    2. Homicide — harmless error. — In a prosecution for murder where defendant offered testimony to show deceased’s bad reputation, but did not put his own reputation in issue, it was error for the State to attack defendant’s reputation, but such error was harmless where the witness who Was interrogated as to defendant’s reputation answered that he- had never heard anything brought against defendant.
    3. Homicide — evidence of threat. — In a prosecution for murder, testimony of deceased’s wife that defendant and deceased had had a quarrel about a letter she had written, and that defendant had threatened to her that he would kill deceased was admissible to show the state of feeling between defendant and deceased.
    4. Criminal law — objection to evidence. — In a murder trial, where deceased’s wife testified that accused and deceased had a quarrel, •and that -accused came to her house in deceased’s absence and threatened to kill him, error assigned in the motion for new trial that the State was permitted to put accused’s character in issue was insufficient to call the court’s attention to any error in admitting this testimony as tending to show accused’s character, as it was not admitted for that purpose.
    5. Homicide — admissibility of evidence to determine aggressor.— In a prosecution for murder, a question asked of defendant as to why he was carrying his gun and about some trouble he had had with another party was proper upon the issue as to who was the aggressor in the affair.
    6. Criminal law — waiver of exception. — An exception to an instruction which was not carried forward in the motion for new trial will not be considered.
    7. Homicide — instruction as to involuntary manslaughter. — In a prosecution for murder, where the testimony would have supported a conviction for a higher degree of homicide, it was not prejudicial error to instruct as to involuntary manslaughter where there was also evidence tending to show carelessness or recklessness on defendant’s part in engaging in the fatal encounter.
    Appeal from Yell 'Circuit Court, Danville District; J. T. Bulloch, Judge;
    affirmed.

      J. W. Wilson, for appellant.

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

Appellant was indicted for murder in the first degree, alleged to have been committed by shooting Jess Allen. He was convicted of involuntary manslaughter, and has appealed. One of the assignments of error is that the testimony shows indisputably that the killing was done by appellant in his necessary self-defense, and that it was therefore error to convict him of any degreé of homicide

The testimony shows that bad blood existed between appellant and deceased, and mutual threats of violence had been made by each against the other. The testimony on the part of appellant is to the following effect: At the time of the killing defendant was in a wagon, driven by a man named Long, and as they were driving along the road deceased was seen in his field with a gun on his shoulder walking towards the wagon. At defendant’s request Long whipped up the team, and drove by deceased before deceased could reach the road.. The men in the wagon drove on by deceased, and discharged their errand, but on their return they found deceased walking slowly in the road ahead of them. . The team was slowed up to allow deceased to keep ahead, but he also slowed up, and was seen to walk across the road. Finally the wagon overtook deceased, and as it did so deceased put his gun to his shoulder, and when appellant saw this he jumped out of the wagon with his gun in his hand, and as he did so deceased fired his gun, and a few of the shot struck appellant, but did him no great damage, as. the shot were bird shot. Appellant was armed with a repeating shotgun, which required only pressure on the trigger to fire it, and he fired, three shots in rapid succession, the third of which struck deceased and killed him. Deceased was armed with a double-barrel shotgun, both barrels of which were fired.

Two women testified in the case, however. They knew there was ill feeling between the men, and when they saw them meet in the road they expected there would be "trouble, as both men were armed with guns, and these women testified that; while the men were three hundred yards from them and they could not see distinctly what happened, they did see appellant jump out of the wagon and advance oil deceased before the firing began. That appellant stopped as if he was going to shoot, and then advanced'again before firing. The testimony on the part of appellant contradicts the testimony of these women, but "this conflict made a question for the jury, and, if the testimony of these women is credited, the encounter was' practically a duel without the usual preliminaries; and, if this is true, á conviction for a higher degree of homicide would be supported."

It is assigned as error that the court erred in permitting the State to introduce evidence putting in issue’ the character of appellant, over his objection. Appellant offered testimony tending to show the bad reputation of deceased, but did not put his own" reputation in issue. It was not proper, therefore, for the ‘ State to offer original and affirmative testimony tending to show appellant’s reputation. We do not think, however, this rule was offended against in ia prejudicial way. The prosecuting attorney did ask a witness for appellant what appellant’s reputation was. The objection to this question should have been sustained, as appellant had not put his" reputation in issue, but the witness answered, “Well,-1 have never heard anything brought against him.” This incompetent testimony did not tend to show that appellant’s reputation was bad, and we conclude, therefore, that there was no prejudice to appellant, although the testimony was incompetent.

Dealing with this same assignment of error, it may be further said that the wife of' deceased testified that there was -bad feeling between her husband and appellant about some whiskey or cows. Concerning this trouble about the whiskey, the witness was asked if she had written a, letter to the prohibition officers about appellant, and she answered that she had. Upon objection being made to this question, the court ruled that the witness could not state the details.of this lett-ef, but could answer whether appellant and her husband “had a row about a, letter, ’ ’ and to. this ruling an exception was saved. The witness then answered that appellant and her husband did have a row, and that the quarrel occurred after the letter had been written, although she did not know whether they quarreled about the letter. But she stated that, after the -letter was written,, appellant came to her house in her husband’s absence, and threatened to kill him.

This testimony was obviously .offered for' the purpose of showing what the men had quarreled about and the state of feeling between them, and was admissible for this purpose. Moreover, the error assigned in the motion -for a new trial, that is, that the State was permitted to put the character of defendant in issue, was not sufficiently specific to call to the court’s attention any error there may have been in the admission of this testimony as tending to show the character of appellant, as it was not admitted for that purpose.

Defendant was asked on his cross-examination why he was carrying his gun around with him and about some trouble he had had with another party- Counsel for appellant asked that the jury be instructed that this testimony-should be considered for the purpose only of affecting appellant’s credibility as a witness. The court properly refused to limit the testimony to this purpose. It was a proper circumstance for the jury to consider in determining, who was the aggressor in the fatal difficulty.

An exception was .saved to an instruction numbered 24, but it does not appear that the giving of-this instruction was assigned as error in the mo ton for- a newtrial.

' It is finally insisted that the- court erred in charging the .jury on the law of involuntary manslaughter. Inasmuch as the testimony would have supported a conviction for a higher degree of homicide, there was no prejudicial error in giving this instruction. The jury might have found, in view of the testimony of the two women, that appellant brought on the difficulty by jumping out of'tlie wagon and advancing on deceased; at any rate, that he was careless and recldess in so doing. Roberts v. State, 96 Ark. 58; Jones v. State, 161 Ark. 242; Johnson v. State, 156 Ark. 459; Freeman v. State, 150 Ark. 387; Webb v. State, 150 Ark. 75; Lasater v. State, 133 Ark. 373; McGough v. State, 113 Ark. 301; Bruce v. State, 68 Ark. 310; Scott v. State, 75 Ark. 142; Ringer v. State, 74 Ark. 262.

There was, therefore, no prejudice in giving this instruction.

Finding no prejudicial error in the record, the judgment must he affirmed, and it is so ordered.


author: McCulloch, C. J.

text:
    Cheeks v. State.
    Opinion delivered December 21, 1925.
    1. Homicide — assault with intent to kill — evidence.—In a ■prosecution for an assault with intent to bill, evidence held to sustain a conviction.
    2. Homicide1 — liability of accomplice. — In a prosecution for an assault with intent to kill a girl riding in a car driven by defendant, a conviction of the latter would be sustained where the evidence justified a finding that he and another were acting in concert in endeavoring to compel the girl to ride with them, though it does not appear which of them struck the blow.
    3. Homicide — acts of accomplice — instruction.—In a prosecution for assault with intent to kill, an instruction on the liability of defendant for the acts of a companion, held not erroneous when its sentences are read together, as allowing the jury to find accused guilty thereby because of his presence, especially in in the absence of specific objection.
    4. Homicide — assault to kill — premeditation.—In a prosecution for assault with intent to kill premeditation and deliberation are not essential elements.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Reed <£ Beard and Trimble & Trimble, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted of assault with intent to kill under an indictment charging him with assaulting and striking Josie Woods with a metal bar with intent to kill and murder her.

Josie Woods is a girl about nineteen years of age, living with her parents at or near the village of Ryan, in Lonoke County. She testified that she had been personally acquainted with appellant, Lee Cheeks, and also with Fred Woosley, two young men in the neighborhood, and that late in the afternoon of Sunday, April 12, 1925, those young men came to her house, and invited her to go to church with them at Coy, a village not far distant, and suggested that she get another girl to accompany Woosley; that she assented to this arrangement, and that she and appellant got into a stripped-down Ford car to drive over to Humnoke to see about getting another girl, and left Woosley there near the home of witness to await their return; that she and appellant went on down to Humnoke, and that, instead of stopping there, appellant drove the car on through the town and into the woods, and stopped and got out and' invited the witness to get out of the car and help him to fill up the radiator, and that upon her refusal he cursed her; that appellant then got back into the car and they drove back home, and as they approached the home of witness, Woosley stepped out into the road ahead of them and gave a signal, and upon the car being stopped he stepped up on the running board, and as the car moved along, witness insisted upon being permitted to get out of the car, but appellant refused to stop the car for her, and as she turned with one foot upon the running board she was struck over the head, and instantly became unconscious. She testified that she was struck by some one while the car was moving along the road with appellant at the wheel and Woosley standing on the right-hand running board, but that she did not know which one of them it was that struck her. She testified that appellant and Woosley both used rough language towards her when she spoke of getting out of the car. The car passed on, and a little while later other persons found Josie Woods lying unconscious on the roadside, and she was taken to the office of a physician, Dr. Ward, at. England, who testified as to the condition of the wound on her head.

The physician testified that Josie Woods had blood all over her head and face and clothing, that there was a gash on her head about three or four inches long, standing open, ¡and that he.sewed up the wound and dressed it. He testified that, in his opinion, the wound was made by a blow of some kind, and.:not from falling out of the car, and that, the gash was about the same size of the edge, of a metal bar which was found inside of the car hy other witnesses. He testified that there were no. evidences on her body of scratches or wounds other than the cut on her head. Another physician testified the. same as Dr. Ward.

Witness Duncan testified that about eleven o’clock on the night of the injury to Josie Woods he found the car in which the parties had been riding at the back end of a certain drug store, and that he found in the car one of the leaves of an automobile axle spring, which was about twelve inches.long, two inches wide and one-fourth of an inch thick, and weighed about three and a half pounds.

According to the testimony, the Ford car in which the parties were riding had a home-made'top, which was low and small, not giving sufficient room overhead for a blow to be struck on the head of a person sitting in the car.

Appellant testified ■ that neither ■ he nor Woosley struck Josie Woods, but that she jumped from the car and fell. The theory of appellant is that it was impbssible for the' girl to have' been struck over the head while she was sitting in the car as she claimed. ■

The testimony shows that' appellant and'Woosley spent the night at the home’ of a negro in the neighborhood, and fled the country early the next morning, going first to Jackson, Mississippi, where .they enlisted in the army, and thence to North Carolina, where they were apprehended, and brought back to Arkansas for trial.

It is earnestly insisted by counsel for appellant that the evidence was insufficient to sustain the verdict, in that no witness testified directly that either appellant or Woosley struck the blow, or that. Josie Woods was struck at all. They contend, as before stated, that she could not have been struck over the head while she was sitting in the car, and that the AVound must have been inflicted after she left the car, or that she hurt herself when she jumped from the car. We cannot agree with counsel in this contention, for the witness Josie Woods testified positively that she was hit over the head while she was sitting in the car, .turned sideways with her right foot on the running board. She testified that she did not know who it was that struck her, but that there was no one else in proximity except appellant and Woosley. If the jury believed the Avitness in her statement. that she was struck ov,er the head, then it was fairly inferable from the testimony that the blow was struck, either by appellant or Woosley. It is undisputed that they were the only two persons in or about the car except the witness Josie Woods herself. -The fact that no blood was found in or about the car, and that the top of the ear was apparently too low to allow sufficient room for a person to wield a piece of iron and strike on the head -the girl while sitting in the car, tended to weaken the force of the State’s contention that the girl was struck while she avus sitting’ in the car. But this affected only the weight of the testimony, and it was a question, after all, for the jury to determine whether or not the girl was telling the truth, when she said that some one struck her over the head while she was sitting -in the car. The testimony showed that it was improbable that the. blow was struck as claimed by the girl, but it does not show, indisputably, that it was impossible for the blow to have been struck under those circumstances. The physician who examined the girl and dressed the wound testified that the gash on the side of the girl’s head was about the -size of the edge of the piece of metal found in the car, and that the wound could scarcely have been inflicted by her jumping or falling from the car to the road.

The immediate flight of appellant and his companion is another circumstance which tends to connect them with the commission of the crime. Appellant undertook to explain it by saying that shortly after Josie Woods sprang out of the car, and he and Woosley drove away, they heard a statement from a passerby that Josie Woods had been found lying unconscious on the road, and that she had 'been ravished, and that that wlas the reason they left the State. Their immediate flight was, as before stated, a circumstance tending to show guilt, and appellant’s explanation to the jury made a question for the jury to determine what his motive was in fleeing.

Again, it is insisted that the evidence is legally insufficient for the reason that it does not show which one of the two parties, appellant or Woosley, struck the blow, and does not show any concert of action between the two so as to make them both guilty. There was proof tending to show concert of action between the parties for the reason that they were on a joint enterprise from the beginning- — not an unlawful one, it is true — but they were -both using -abusive language to the girl and insisting on her'going with them, when she expressed a desire to get out of the ear. The jury had the right to find from these circumstances that both of the parties were work-' ing towards the same end in compelling the girl to accompany them, and that each encouraged the other, so that each was responsible for the act of the other. It is unimportant which one of the parties struck the blow, for, if the other was present aiding and -abetting, 'both were equally guilty.

Error of the court is assigned in giving instruction No. 7, which reads, in part, as follows: ■ :

“While the indictment, gentlemen of the jury, in this case charges that this defendant struck this lick, if his associate, Woosley, struck the lick, if one was struck, and the defendant had knowledge that he was going to so do, then all parties who were present, aiding, consenting, advising, encouraging, assisting or abetting can be indicted and punished as principals. Under the evidence in this case, the law of accomplices does not apply. If any one struck this young woman, all other parties who were present, and there were only two under this evidence besides herself, and they had knowledge of the fact that the lick was going to be inflicted, if one was inflicted, they both would be equally guilty. ’ ’

The objection made to this instruction is, first, that there is no evidence to warrant a finding that appellant struck the blow himself or that he aided and abetted Woosley in doing so, but we have already shown that there was evidence which warranted this inference by the jury. It is .also argued that under the second sentence of this instruction the jury could have found appellant guilty merely because he was present when Woosley struck the blow, even though, he did nothing in aid or encouragement of the commission of the crime. Counsel for appellant made specific objections to the instruction, but not on this ground. When the‘two sentences are considered together, it is evident that the court intended to convey to the minds of the jury the idea that, in order to convict, appellant, if Woosley struck the blow, he must have been present, aiding and abetting, and not merely that his presence would be sufficient to justify a conviction. The two sentences should be read together, and there should at least have been a specific objection made on that ground if it was thought that the jury might understand the instruction to mean that the mere presence of appellant, without anything more, would m'ake him responsible for the unlawful act of Woosley.

Objection is made to another instruction on the ground that it omits the elements of premeditation and deliberation as essential to the crime of assault with intent to kill. It is not essential that those elements should exist, for if the assault was made with specific intent to kill and the circumstances were such that, if death had resulted, it would have constituted murder, either in the first or second degree, the offense is assault with intent to kill. Therefore it is unnecessary that the assault should have been made with premeditation and after deliberation.

We find no error in the proceedings, and the judgment is therefore affirmed.