text:
    Bowers v. Rightsell.
    Opinion delivered April 25, 1927.
    1. Ejectment — prayer for accounting — transfer to equity. — In a suit in ejectment by a tenant in common, a prayer for judg- ’ ment for half of any rents and profits defendant may have received from the land calls for an accounting, and a motion to transfer to equity was properly granted.
    2. Equity — complete relief. — When the chancery court takes jurisdiction of a case for one purpose, it will decide all the issues , raised by. the pleadings.
    3. Tenancy in common — right to make improvements. — A tenant in common has a right to make improvements on the land without the consent of his co-tenants, and, although he has no lien on the land for the value of the improvements, he will he indemnified for them, whether made by him or by those claiming under him, in a proceeding in equity to partition the land between himself and his co-tenants,’ either by having the part upon which the improvements are located allotted to him, or by having compensation for them if thrown into the common mass.

      4. Ejectment — equitable defense. — In ejectment defendant did not have to wait until the title to the land was settled before asserting an equitable right for compensation for improvements.
    5. Trial — transfer of cause. — A defendant, when sued at law, must make all the defenses he has, both legal and equitable, and if any of them are exclusively cognizable in equity, he is entitled to have the cause transferred to equity.
    6. Appeal and error — pleadings amended to conform to proof.— In ejectment, where the undisputed evidence showed tljat defendant had made valuable improvements, the pleadings will be considered on appeal as amended so as to entitle him to compensation for them in equity.
    7. Descent and distribution — new acquisition. — In case of a new acquisition, a surviving widow, in the absence of any children, takes a half interest in her deceased husband’s land, as tenant in common with his heirs at law.
    8. Adverse'possession — grantee of tenant in common. — Where a tenant in common of a half interest jn land conveys the entire estate to another who takes possession under claim of the entire estate, his possession is adverse to the other tenants in common, and he acquires title by occupancy for the statutory period, except as to those under disability.
    9. Adverse possession — co-tenancy.—In order for possession of a co-tenant to be adverse to his co-tenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts that notice may be presumed.
    10. Adverse possession — extent.—Actual possession of a part of land under deed describing a larger tract uninclosed is possession of the entire tract.
    Appeal from Pulaski Chancery Court; John E. Mart'meav, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Wash Bowers instituted an action of ejectment in the circuit court against W. W. Rightsell and W. M. Ramsey to recover an undivided one-half interest in eights’- acres of land and for one-half of the rents and profits.
    According to the allegations of the complaint, both parties claim from a common source of title. Daniel Bowers died intestate in Pulaski County, Arkansas, on the 28th day of February, 1908, owning the land in controversy. He had no children, and, the lands being a new acquisition, one-half went to his widow, Betty Bowers, and one-half to his mother, Melvina Farmer, for life, and then to the collateral heirs of Dan Bowers. Melvina Farmer died in October, 1908, and Betty Bowers and the collateral heirs of said Daniel Bowers became tenants in common of said land. The collateral heirs of Daniel Bowers are his brother, Wash Bowers, the plaintiff in this action, and certain nephews and nieces, who have not conveyed their interest in said land to the plaintiff, and certain other collateral heirs who have conveyed their interest to the plaintiff. The names of all the collateral heirs are set out in the complaint. Betty Bowers executed a deed to said land to W. W. Rightsell, who is now in possession of it and is withholding- a one-half undivided interest in it from this plaintiff. The plaintiff further alleges that said Rightsell has sold, rented or in some manner let a part of said tract of land to the defendant, W. M. Ramsey, who is now unlawfully withholding the possession of same from this plaintiff.
    The defendant, Rightsell, filed an answer, denying the allegations of the complaint and claiming title to the land by mesne conveyances from Melvina Farmer and by adverse possession. He moved for a transfer to ' equity, which was granted, over the objections of the plaintiff.
    The plaintiff introduced evidence tending to prove the allegations of his complaint.
    The defendant, Rightsell, introduced in evidence a deed to said land from Melvina Farmer to Betty Bowers, executed on the 11th day of March, 1908, an$ a deed from Betty Bowers to himself, executed on the 20th day of January, 1912. As soon as Rightsell obtained possession of the land, under his deed from Betty Bowers, he inclosed the same with a wire fence in 1912, and ever since has been in exclusive possession of said, land, claiming it as his own. He owned land next to it, which was occupied by his tenants, and he rented the land in question to them, and they cultivated a part of it. Rightsell has paid taxes on the land ever since be received a deed to it. Tlie plaintiff, Wasb Bowers, helped to inclose the land with a wire fence, and ever since then has lived within two miles of the land, and knew that W. W. Rightsell had possession of it and was claiming it as his own. About three years before the trial of the case, which was in March, 1926, the defendant, Rightsell, erected a filling station on the land at a cost of $1,500, and also a small house. On the part of the plaintiff it was shown that, in 1917, a part of the wire fence was torn down, and was not thereafter rebuilt. Other facts will he stated or referred to in the opinion.
    The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of the plaintiff should be dismissed for want of equity and the title to said land be confirmed in W. W. Rightsell, free from any claim or interest of the plaintiff. To reverse that decree the plaintiff has duly prosecuted an appeal to this court.

      J. F. Wills and Frank Strangways, for appellant.

      Robinson, House é Moses, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for the plaintiff that the decree should be reversed because the plaintiff had a right to maintain his action of ejectment in the circuit court, and that it was reversible error to transfer the case to the chancery court and try it there. It is true that it was held in Trapnall v. Hill, 31 Ark. 345, that, where one tenant in common ousts another, or does some act amounting to a total denial of Ms rights as co-tenant, the latter may maintain ejectment, and, under the statute, may recover his proportion of the rents and profits in the action. It is also held in that case that, in matters of account, especially where a trust exists as between tenants in common, courts of equity exercise concurrent jurisdiction with courts of law. Hence in that case it was held' that, upon a complaint in equity by a tenant in common, alleging an ouster by his co-tenant and praying a.n account of the rents- and profits received by him, and possession of his share of the premises, the court will entertain jurisdiction.

The difference between that case and the ease at bar is that, in the former case, the plaintiff elected to sue in equity, and in the present case he elected to sue at law, and the case went to equity over his objections. It will be noted, however, that the plaintiff in his complaint alleged matters, which gave the chancery court jurisdiction. He did not sue for the rents in a lump sum in the way of damages, but prayed judgment "for one-half of any rents and profits said Rightsell may have received from” said land. This amounted to a prayer for an accounting, and, from the allegations of the complaint, it appears that the defendant has been in possession of the land for several years and that he has sold a part of the land to W. Mi Ramsey and put him in possession of the same. Thus it appears that the accounts would run through several years; and the court, in its discretion, might transfer the case to the chancery court for the reason that the accounting could be better settled in a court of equity than by a jury. It is the settled rule in this State that, when a chancery court takes jurisdiction of a case for one purpose, .it will decide all the issues raised by the pleadings.

Moreover, the plaintiff alleges that Rightsell had sold a part of the land to W. M. Ramsey and had .placed him in possession of it. The proof on the part of the defendant, Rightsell, shows that he had erected a filling station on the land at a cost of $1,500. and also a small house. In this connection it may be stated that we are. testing the question of jurisdiction under the allegations of the complaint and the proof offered to establish them. According to the allegations and proof made bv the plaintiff. he was a tenant in common with the defendant, Rightsell. Tt i's well settled in this State -that, in his relation as tenant in common, one has a right to make improvements on the land without the consent of his co-tenants; and, although lie has no lien on the land for the value of his improvements, he will be indemnified for them, whether made by himself or those claiming under him, in a proceeding- in equity to partition the land between himself and co-tenants, either by 'having the part upon which the improvements are located allotted to him, or by having compensatioin for them, if thrown into the common mass. Drennen v. Walker, 21 Ark. 539; Dunavant v. Fields, 68 Ark. 534, 60 S. W. 420; and Lemly v. Works, 138 Ark. 426, 211 S. W. 362. The undisputed proof shows that the land was situated near the city of Little Rock and on a public road leading into the city. Rightsell built a small house and, in addition thereto, a filling station, at a cost of $1,500. Under the authorities above cited, Rightsell would have the right in equity to be compensated for these improvements if they could be allotted to him in the division of the land, or, if not, he could he compensated for them, if that could be done without doing- injustice to his co-tenant.

It is true that Rightsell was claiming title to the land by adverse possession, and that his claim of title to the wdiole of the land should be first settled. But, in the event that the court should decide adversely to him, he would have been entitled to have the case transferred to equity to assert his rights to compensation for improvements, under the rule stated. He need not wait until the title to the land was settled before asserting his rights. It is well settled in this State' that a defendant, when sued at law, must make all the defenses he has, both legal and equitable, and, if any of them are exclusively cognizable in equity, he is entitled to a transfer to equity. Daniel v. Garner, 71 Ark. 484, 76 S. W. 1063, and Langless v. McCarthy, 169 Ark. 948, 277 S. W. 27.

It is also well settled that the pleadings in a case may be considered amended so as to conform to the proof. Britton v. Meriwether, 166 Ark. 414, 265 S. W. 364. The undisputed evidence shows that Rightsell made these improvements, and the pleadings should be considered amended so as to entitle him to be compensated for them in equity.

The result of our views is that the chancery court had jurisdiction of the case on the question of accounting by Rightsell in his fiduciary relation to the plaintiff under the allegations of the complaint, and also in asserting his rights to compensation in equity for the improvements if the plaintiff should prevail as to his claim of title. Hence there was no error in transferring the case to the chancery court and trying it there.

The defendant, Rightsell, asserted title to the land by adverse possession. Daniel Bowers died, leaving his widow, Betty Bowers, and no children. He also left surviving him his mother, Melvina Farmer, and the plaintiff, his brother, and other collateral heirs. His widow became invested with an undivided one-half interest in the land as tenant in common with his brothers and sisters, after the death of his mother. Avera v. Banks, 168 Ark. 718, 271 S. W. 970. According to the allegations of the complaint, the estate was a new acquisition, and Betty Bowers became a tenant in common with the plaintiff and other collateral heirs of Dan Bowers after the death of Melvina Farmer, the mother. Melvina Farmer executed a deed conveying the title to all the land to Betty Bowers, and she in turn conveyed all of the land to the defendant, Rightsell. A conveyance by a co-tenant of the entire estate to a stranger gives color of' title; if possession is taken thereunder,, and the grantee claims the whole, his possession is adverse to the other tenants in common, and- he acquires title by occupancy for the statutory period, except as to those under, disability. Jackson v. Cole, 146 Ark. 565, 226 S. W. 513, and Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537.

It is also well settled that, in order for the possession of a tenant in common to be adverse to that of his co-tenants, knowledge of the adverse claim must be brought home to him directly or 'by such notorious acts of unequivocal character that notice may be presumed. Singer v. Narron, 99 Ark. 446, 138 S. W. 958; and Oliver v. Howie, 170 Ark. 758, 281 S. W. 17. In tire case at bar, when Rightsell received his deed from Betty Bowers in 1912 he took possession of the entire tract as his own, and erected a woven wire fence forty-two inches high around it. He put two barbed wires above the woven wire. The plaintiff helped him erect the fence, and has lived within two miles of the place ever since. The evidence for the defendant, Rightsell, shows that he has been in the exclusive adverse possession of the land ever since he received the deed to it in 1912 and has paid the taxes on the land since that time.

The evidence for the defendant shows that he took possession of the land under a deed in January, 1912, which constituted color of title, and has held adverse possession of it ever since, which was more than seven years before this suit was brought. It is true that the plaintiff attempts to contradict his evidence on this point by showing that the fence which the plaintiff helped the defendant build when he took possession of the land in 1912 was broken down in places by soldiers from Camp Pike passing through it in 3917, but we do not think the evidence sufficient for that purpose. It has been repeatedly held by this court, that the actual possession of a part of the land under a deed describing the entire tract is in law possession to the limit of the whole land. Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066, and cases cited; and Moore v. McHenry, 167 Ark. 483, 268 S. W. 858. The undisputed evidence shows that the defendant’s tenants cultivated some parts of the land each year after the defendant took possession of it in January, 1912. The plaintiff could not have been, in any event, prejudiced by the action of the court in transferring the case to chau-cery and trying it there. The result should have been the same whether the case was tried at law or in equity.

It follows that the decree of the chancellor was correct, and must be affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Independence County v. Lester.
    Opinion delivered April 25, 1927.
    1. Counties — opening of highways — compensation for land TAKEN. — Crawford & Moses’ t)ig., § 5249, providing for opening of highways by the county court and giving the landowner the right to present his claim to the county court for taking of property for right-of-way, held not in conflict with Const., Amdt. 11, prohibiting cities and counties from making allowance fob any purpose in excess of the revenue from all sources for the fiscal year, in view of Const., art. 2, § 22, providing that property shall not be taken, appropriated, or damaged for public use without compensation.
    2. Eminent domain — compensation for land taken for highway. • — A county had no right to enter upon land appropriated for a highway without paying therefor, though the county fund for the year was exhausted, preventing the county from allowing the claim under Amdt. 11 to the Constitution.
    3. Eminent domain — taking of land for highway — claim against county. — Condemnation of land for highway purposes by the county court under § 5249 creates ipso facto a valid claim for compensation in favor of the landowner against the county.
    Appeal from Independence Chancery Court; A. S. ■Irby, Chancellor;
    affirmed.

      W. K. Ruddell, for appellant.

      Coleman S Reeder, for appellee.
   Wood, J.

This is an action by Desha Lester, the appellee, against Independence County, the appellant, to restrain the latter from taking possession of 6,000 feet of the right-of-way of the Batesville & Iieber Springs Highway,' which was a Federal and State project, until he received compensation therefor. He alleged that his land had been opened and established as part of the State and Federal highway by the county court under § 5249 of C. & M. Digest; that he had presented his claim for damages to the county court, and that the claim was disallowed on the ground that the county court was without jurisdiction to allow the claim because the fiscal year had expired, and the revenue during the fiscal year in which appellee’s claim accrued had been exhausted, and that therefore the county court was prohibited by Amendment No. 11 of the Constitution'from allowing the claim; that, notwithstanding the fact that the county court refused to allow him compensation for his lands condemned by such court, the county judge had entered upon such land, cleared the right-of-way, and is proceeding with the construction of such road, and, unless restrained, the road will be opened to the public. The appellee alleged that § 5249, supra, had been rendered unconstitutional by the adoption of Amendment No. 11 of the Constitution. Appellee prayed that the county be restrained from appropriating his land for use as the highway until he had received compensation for same. The appellee made an exhibit to his complaint the order of the county court condemning his lands and authorizing the Highway Department to go upon the same and construct the road. The appellant demurred to the complaint on the ground that the condemnation order showed that the road had been taken over by the Highway Department of the State and the same was being constructed by such department, and that the complaint was otherwise insufficient to state a cause of action.

The court overruled the demurrer, and tried the cause upon the facts as stated in the pleadings and an agreed statement showing the work that had been done on the highway. The .court rendered a judgment in favor of the appellee, restraining the county .judge", the county of Independence, and all persons acting under the authority of the order of the county court, from taking possession of the appellee’s lands until he had been compensated for same. Prom that judgment this appeal is duly prosecuted.

Section 5249 of C. & M. Digest, under which the land of the appellee was condemned for highway purposes, is not unconstitutional, as held by this court in Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. The above decision, declaring § 5249 valid, was-prior to the adoption of Amendment No. 11 to the Constitution; but Amendment No. 11 to the Constitution, adopted in 1924, does not have the effect of rendering § 5249, supra, unconstitutional. It is clearly the duty of county courts, when establishing neAv roads or laying out old roads under the authority of § 5249, not to ignore any of the applicable provisions of the Constitution. Section 22 of article 2 of the Constitution provides that the right of property is before and higher than any constitutional sanction, and private property shall not be taken, appropriated, or damaged, for public use, without compensation therefor. The county court, in exercising the authority conferred upon it in § 5249, supra, cannot disregard the above provision of the Constitution, nor can it disobey the mandates of Amendment No. 11. To be valid, the official acts of the county court, in exercising its authority under § 5249, supra, must be in conformity with ■ both of these provisions as they have' been interpreted by the decisions of this court. The statute above, under . which the county court was proceeding to condemn the appellee’s lands, provides:

“If the owner of the land over which any road shall hereafter be so laid out by the court shall refuse to give a right-of-way therefor, or to agree upon the damages therefor, then such owner shall have the right to present his claim to the county court, duly verified, for such damages as he may claim by reason of said road being laid out on his land; and, if he is not satisfied with the amount allowed him by the court, he shall have the right to appeal as now provided by law from judgments of the county court; provided, however, no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road; • provided further, that, when such order is made and entered of record laying out or changing any road, the county court or the judge thereof shall have the right to enter upon the lands of such owner and proceed with the construction of such- road. Provided further, all damages allowed under this act shall be paid out of any funds appropriated for roads and 'bridges, and, if none such, then to be paid out of the general revenue funds of the county. ” '

Construing this statute in Sloan v. Lawrence County, supra, we said:

' “The statute under consideration meets every constitutional requirement. It authorizes the county court to determine, without notice, the necessity for taking lands for public use, but contains ample provisions concerning notice and hearing upon the question of compensation, or damage, ■ which mean the same thing in that connection. There is no provision for formal notice, but the order itself and the taking of the property thereunder are, in the very nature of things, acts of such publicity as to constitute notice, and the property owner is given twelve months within which to apply to the county court for an allowance of compensation, and the hearing is then given on that question.'”

In Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782; Nelson v. Walker, 170 Ark. 170, 279 S. W. 11; McGregor v. Miller, ante p. 459, construing Amendment No. 11, we said:

“We think the amendment means just this: that, if a county, city or town avails itself of the provision authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for. an amount in excess of its annual revenues. It must stay out of debt. It means further that, if a city, county or town has any outstanding unpaid warrants which it does not take up by issuing bonds as' authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year.”

In the case of McGregor v. Miller, supra, we held that the fiscal year mentioned in Amendment No. 11 begins on January 1 and ends cm December 31 : and we' also held that Avarrants issued as Avell as obligations incurred AAhich are in excess of the revenues are void, and the action of the court in issuing a Avarrant, or in making an allowance upon Avhich a Avarrant might be later issued, is cor am non judice, and said warrants and allowances are void.

Now, as Amendment No. 11 was adopted after tlie enactment of § 5:149, supra, it is necessary for county courts hereafter, in proceeding upon the authority of the above section, to do so, and they can only do so, provided the finances of their counties will justify making compensation to the landowner for the damages he has sustained by reason of taking his land for public use. County courts cannot claim any authority, or exercise any power, under the statute to condemn private land for public use as a highway, without making provision for compensation to the landowner for the damages he has incurred by the taking of his land. If county judges have not so managed the budgets of their counties that compensation may be made to landowners for lands which may be deemed necessary for use as a public highway, then it is certain that county courts, in such a situation, have no power to condemn the owners’ lands for highways. The county court, according to the pleadings and the agreed statement of facts in this record, had condemned, and the county judge was proceeding to use, appellee’s land for a highway, and, at the same time, refused to allow appellee’s claim for compensation on the ground that the court was without authority to alloAV the claim because the' fiscal year had expired and the revenues were exhausted. Such being the fact, the appel-lee’s land could not be taken for a highway. When the county court condemned appellee’s land for a highway, it ipso facto created a valid claim for compensation in his favor against the county, under the above provision of our Constitution and statute, which claim the owner of the land taken could present to the county court at any time within twelve months after the, date of the order laving out or changing the road. The budget thereafter would have to be so framed and restricted as to provide for the payment of this claim. The fiscal affairs of tlie count}' could not be so manipulated as to deprive the landowner of his property for public use without compensation.

The statute, supra, under which the order of condemnation was made, provides that all damages allowed thereunder shall be paid out of any funds for roads and bridges, and, if none such, then out of the general revenue of the county. What effect subsequent general highway laws may have upon this particular provision we are not called upon to decide in this lawsuit. See, for instance, §§ 30 and 69 of act No. 5 of the extraordinary session, approved October 10, 1923, ánd § 5 of act 116,' approved March 5, 1927; and there may be other pertinent sections. The appellee is not concerned as to what governmental agency exercises the power of-eminent domain, nor as to the particular fund out of which he is to he paid; his only concern here is that he shall receive compensation; he is entitled to it. If the county courts cannot manage their financial affairs so as to provide compensation for damages to landowners for their land taken for public use, then, in such case, these courts are powerless to condemn the land. Under the facts of this record it appears that the county court has condemned appellee’s land and is proceeding to appropriate same for a State highway, without providing any compensation to appellee for damages, and it appears that the county court claims that it has no authority to make such compensation. If not, as already stated, it had no power to condemn, and its order to that effect is absolutely void. Therefore it is obvious that the county court and all those who claim, to be acting under the authority of such order, in appropriating and using appellee’s land for a highway, are doing so without any right whatever. The finding of the chancery court so holding is correct.

The facts of this record, as stated in the pleadings and the agreed statement, show a causé of action to be maintained in the chancery court. Appellee had no adequate remedy at law. The decree restraining the appellant and all others from taking possession of appellee’s land and opening the same to public use and travel until he has been paid for same is therefore affirmed. See Lemon v. Tanner, ante, p. 414.


text:
    Wofford v. Young.
    Opinion delivered April 25, 1927.
    1. Mortgages — petition to set aside foreclosure sale. — Under Crawford & Moses’ Dig., § 2190, the chancery court had jurisdiction to hear and determine, by consent, in vacation, a second petition to set aside a mortgage foreclosure sale, such petition having been filed at an adjourned term.
    2. Mortgages — foreclosure sale — setting aside. — It was error to refuse to set aside a mortgage foreclosure sale, where the evidence showed that the price paid was grossly inadequate, and that the mortgagors were lulled into security by the mortgagee’s assurance that he would buy the property in and give them an opportunity to redeem by paying the debt and cost of foreclosure.
    3. Mortgages — purchaser at foreclosure sale — rents.—On setting aside a purchase of a half interest in land at foreclosure sale, the purchaser was entitled to á half interest in the rents from the date of the purchase to the time when the motion to set aside the sale was made.
    Appeal from Crittenden Chancery Court; J. M. Fut-ren, Chancellor;
    reversed.

      Kenneth Rayner and W. H. Fisher, for appellant.

      S. V. Neely, for appellee.
   Wood, J.

J. L. Mercer, doing business under the name of J. L. Mercer & Company,- was the beneficiary in a deed of trust in which W. S. Ayers was the trustee. The deed- of trust was executed on March 28, 1923, by James L. Wofford and Frances Wofford, covering the northeast quarter of section 4, township 5 north, range 7 east, containing 160 acres, in Crittenden County, Arkansas, and was given to secure a promissory note in the sum of $676, of even date, and other advances made by Mercer to the Woffords. This action was instituted on February 3, 1925, by Mercer against the Woffords to foreclose the deed of trust in the sum of $1,204.63, the amount alleged to be due at that date under the deed. It was alleged that J. L. Wofford owned an undivided half interest in the land and that Frances Wofford owned a life estate therein.

Ill the affidavit for warning order against Frances Wofford it was alleged that she resided in Clay County, Kentucky, and was absent from Crittenden County, Arkansas. Wofford was served with summons, and Frank Berry Avas appointed attorney ad litem for Frances Wofford and a warning order issued for her February 3, 1925. A decree was rendered on March 16, 1925, against J. L. Wofford and against Frances Wofford, the latter by default, for $1,204.63, balance claimed to be due Mercer by the Woffords. The land as described in the deed of trust was described in the decree, and the court declared the amount of the decree “to be a lien against the interests of the defendant in the land described,” and directed that the land be sold. A commissioner was appointed to make the sale upon giving notice of the time, place and terms of the sale. The notice described the land to be sold as contained in the deed of trust. The report of the sale by the commissioner shoAved that he sold the land condemned in the decree and that C. Cl. Young “became the purchaser of the whole of said premises at and for the sum of $1,314.13, he being the highest and best bidder for said lands.” The lands were sold subject to a prior indebtedness in fa\mr of the Federal Land Bank of St. Louis, Missouri. After the report of the commissioner Avas made to the court and confirmed, the clerk of the court interpolated in the report of the commissioner the Avords, “all the interest of the defendants herein,” so as to make the same mean that the commissioner had sold all the interest. of the defendants in the land as described in the deed of trust. Mercer had arranged Avith his counsel to be present at the sale, but failed to get notice and did not attend. His counsel put in a bid for him, but the property Avas sold for the sum of $1,314.13, and Avas purchased by C. G-. Young, as reported by the commissioner.

There was no appeal from the decree of foreclosure. The attorneys for Wofford, on October 19, 1925, filed exceptions to the report of sale by the commissioner and a motion to set same aside on the ground that same had sold for gross inadequacy of consideration; that the lands were worth $14,400; that they were incumbered by liens amounting in the aggregate to about $2,000, and that the rents thereon for the year 1925 amounted to $1,193, and the purchaser bid for same only $1',314.13, the net price of $21,13 an acre, when the lands were worth $90 per acre. The Woffords tendered into court the amount of the indebtedness for which the lands sold, and asked that the sale be set aside. The motion was supported by the affidavits of four landowners, residents of Crittenden County, who were familiar with the land in controversy and who placed the market value thereof at $90 per acre. Each of the affiants stated that they had no interest in the matter.

The purchaser, C. Gf. Young, responded to the motion to set aside the sale, and specifically denied the same. On October 21, 1925, the chancery court heard the report of sale of the commissioner and the exceptions thereto, and the motion by the Woffords to set the sale aside and to redeem the land, and the response thereto, and the oral evidence of Wheeler, Young and Reese, and the court found that the sale was in all respects properly conducted, and that the Woffords had no right to. redeem, and overruled the exceptions to the report of sale, and entered its decree confirming the same and directing the commissioner to make a deed to Young, the purchaser.

On December 14, 1925, which was the first day the court would meet after rendition of the confirmation decree, the Woffords filed their petition to rehear the former motion to set aside the sale, in which they reiterated the, facts substantially as above set forth as grounds for vacating the sale. They said, among other things, that they were misled by the actions of Mercer in the foreclosure suit, who informed them that he had no intention to deprive them of their farm; that he intended to foreclose and bid the land in at the sale, and that all he wanted was his money, and that, if the Woffords would pay him his money in the fall, they should have their lands back; that they were, by these representations, lulled into security, and gave no further attention to the foreclosure proceedings. They set up that the foreclosure proceedings were all misleading as to a description of the property, in ’ that the entire interest was advertised to be sold, whereas the "Woffords only owned a half undivided interest, and a widow’s interest, and the decree failed to declare her interest and to fix the interest of the owner of the other undivided interest; that, as a result, the apparent title to the entire tract had been placed in the purchaser. The Woffords further alleged that they had new evidence which they were unable to produce at the former hearing through no fault of theirs. They again asked that the sale he set aside and that they be allowed to pay the purchaser the purchase money, and asked that he be required to account for the rents.

C. Gr. Young filed a demurrer and response to this additional petition, and alleged that the issue was res judicata, and denied all the allegations of the petition.

There was the following stipulation of facts: “Right after the rendition of the decree of October 21, 1925, appellants engaged other counsel, who went to Marion, Arkansas, to examine the record, and found that the decree had not then been reduced to writing, and that the report of sale indicated that the entire interest in the land had been sold; counsel called the attention of the clerk to this state of 'affairs, pointing out that the decree had clouded the title of the bystander, Jessie May Smith. Counsel was in Marion again on December 14, 1925, and the clerk called his attention to the interpolation which the clerk had made in the report of sale and the decree, by adding the words, “all 'the interests of the defendants herein.’’ Counsel asked to see the published notice of sale, but this could not be found. Counsel later procured a copy of the paper in which the notice of sale was published. and filed it. The notice is copied in the stipulation. It is further stipulated that Mi. Mercer’s attorney was present at the sale and bid for Mr. Mercer the amount of the debt and costs. Also that the petition.for receiver was never presented to the court, but instead, an arrangement was made between counsel, as a result of which W. B. Rhodes, cashier of the local bank, collected the rents as custodian. That Rhodes collected $1,038 of the rents for 1925, and J. L. Wofford collected $155. That G. Gr. Young now claims only two-thirds of the rents, and Rhodes paid over to Jessie May Smith $346, being one-third of the amount he had collected. That there was a Federal Land Bank loan, a prior lien on the land, 'amounting to $1,820 at date of sale. That Col. Berry represented appellants at the trial of the first motion, October 21, 1925, and R. V. Wheeler testified for them. That Col. Berry got a postponement of the hearing from October 19 to October 21, in order to have Mr. Mercer present as a witness, but did not produce him, and, on October 21, the sale was confirmed.

There Avas testimony adduced by the Woffords tending to prove the facts set forth in their petition to set aside the sale. Tavo Avitnesses, Avho had been landoAvn-ers in Crittenden County and Avho Avere familiar with land values there, testified, in effect, that the land in controversy Avas Avorth $90 an acre. Wofford and his sister, Jessie May Smith, the other OAvner of the undivided half interest in the fee of the land, testified that Mercer told them that he Avas going to file suit in the fall to protect his interest, hut stated to them the sale Avould not take place, and that the Woffords Avould have plenty of time to redeem the land. Wofford testified that he Avas not present at the sale and did not knoAV of it until after it occurred. He then employed an attorney, and got the affidavits of landoAvners appraising the land, and turned them over to his attorney. He got up money to make the tender and six affidavits of landoAvners as to the Amine of the land. He Avas present "in court Avhen the petition to set aside the sale Avas heard, but was not familiar with court procedure, and did not knoAV AAdiat avús going on. He stated that Mercer told him that if he sold the laud he Avould buy it in and gWe_Avitness a chance to buy it back.

Mercer testified to the effect that he employed an attorney to foreclose. Tie Avrote. to his attorney, asking when the sale would take place, and had a reply to the effect that the sale had already taken place. Witness then wrote that he was sorry he had not learned of the sale in time to attend. His attorney wrote him, but he did not get the letter. The effect of his testimony in regard to the conversation with Wofford and his sister was that he,assured them that he did not want the land. He told them that the foreclosure proceedings had been started, and it was possible that he might not buy the land, but might have to buy it to protect himself. It was his intention, if he purchased the land and they raised the money; to deed the land back to them upon their payment of his debt, costs and attorney’s fee. He gave Jessie May Smith that impression in his conversation with her. He urged her to get the matter straightened out before the sale. She did not do this, as she continued with the impression that witness would buy and let them redeem, as was in fact witness’ intention. Witness had never seen the land, but was familiar with land values, and placed a value of $75 an acre on the land. Witness did not tell Jessie May Smith that, he would continue the case until fall, because he was always under the impression that he could be the one to buy in the land at the sale, and he did not think it made any difference.

The decree, on the hearing of the final petition, recites that it was heard at chambers in vacation by consent, upon the petition of the Woffords and the demurrer and response of Young and the testimony on file. The court thereupon entered its decree overruling the petition and refusing to set aside the sale, and dismissed the petition of the Woffords, and decreed certain rents to Young, from which the Woffords prayed an appeal.

1. The court had jurisdiction to hear and determine the second petition of the appellees to set aside the sale of June 12, 1925. Although a former petition to that effect had been filed and overruled, this second petition was filed at an adjourned day of the same term of court and on the last day of the adjourned term. The issue was joined by the appellees on this petition, and a hearing thereon was had by consent in vacation. The decree from which this appeal comes so recites. Authority for such procedure is found in § 2190 of C. & M. Digest. See also Bickle v. Turner, 103 Ark. 536, 202 S. W. 203; Davis v. Sparks, 135 Ark. 412, 205 S. W. 803. The court had not adjourned sine die at the time the second petition to vacate the sale was filed, and, even though such petition was filed on the last day of the adjourned term, that was sufficient to give the court jurisdiction to hear and determine the issue joined on such petition, and the statute above confers upon a chancellor authority to try causes by consent of parties and to render decrees in vacation. See Wells v. Baker Lumber Co., 107 Ark. 415, 155 S. W. 122; Mydyett v. Kirby, 129 Ark. 301, 195 S. W. 674; Tire Co. v. McFarlane, 146 Ark. 491, 225 S. W. 632.

2. The trial court erred in confirming the report of the commissioner and approving the sale made by him of the land in controversy on June 11, 1925. We have set forth fully the testimony bearing upon this issue. It speaks for itself; we deem it unnecessary to discuss the testimony in detail. The decided preponderance of the evidence shows that the lands were sold and purchased by the appellee, Young, for a grossly inadequate price. The appellee paid the sum of $1,314.13 for the land. He received rents for the land for the year he purchased, amounting to $692. The lands were thus acquired by the appellee for a net outlay of $622.13. A preponderance of the evidence shows that the entire farm, unincum-bered, was worth $14,400; that the net value of J. L. Wofford’s undivided half interest in the land is $6,290. The testimony of Mercer, the mortgagee, was to the effect that he gave the Woffords, the mortgagors, to understand that it was his intention to buy in the land at the foreclosure sale and to permit them to redeem the same by paying the amount of their mortgage debt and the costs of the foreclosure proceedings. His testimony shows that he would have consummated this purpose if he had received the letter of his attorney advising him of the date of the sale.

Without reiterating the testimony on behalf of the appellants, it tends strongly to prove that they believed that they were secure in the promise of Mercer that, if the land was sold, he would buy it in and give the appellants a chance to buy it back. It cannot be doubted, from the testimony in this record, that the appellants were lulled into security by the conversations with Mercer, in which he assured them that they would have an opportunity to redeem the land by paying their debt to Mercer and the cost of the foreclosure proceedings. We are convinced that, if the appellants had not believed and trusted Mercer to thus protect their interests, as he assured them he would, the appellants would have protected themselves from the sacrifice of their property at the sale through some one else. Because, for aught that appears to the contrary, they experienced no difficulty'in raising the necessary funds to redeem the lands from the sale.

The case in the facts comes well within the doctrine announced by this court, through Chief Justice McCul-loch, in Chaplin v. Quisenberry, 138 Ark. 68, 210 S. W. 341, where we held, quoting syllabus:

“The court properly refused to confirm a judicial sale where the property brought a grossly inadequate price and the sale was attended with circumstances working out a harsh result against the owner’s interests, though the purchaser himself was guilty of no fraud or misconduct. ’ ’ See also other cases cited in that opinion.

. 3. The appellee, Young, as the purchaser of an undivided half interest of the Woffords in the land in controversy, is entitled to an undivided half interest in the rents of the land for the year 1925 from the date of his purchase. .That proportion of the rent of the land for the year 1925 earned prior to the date of the sale should be awarded to the appellants,.and that proportion of the rents for the year 1925 earned subsequent to the date of his purchase should be awarded to the appellee Young. This result necessarily follows as a corollary to the rule announced in North American Trust Co. v. Burrow, 68 Ark. 584, 60 S. W. 950; Gailey v. Rickets, 123 Ark. 18, 184 S. W. 422; Tallman v. Heuck, 152 Ark. 438, 238 S. W. 603.

The decree is therefore reversed, and the cause is remanded with directions to the chancery court to enter a decree, vacating its decree confirming- the sale of the land in controversy to the appellee, canceling the deed of its commissioner to the appellee, and quieting title of the appellants to the lands in controversy upon their payment to the appellee of the amount of the purchase money with interest thereon from the date of his purchase at the rate of six per cent, per annum until paid, and awarding rents to the respective parties as herein directed, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.


text:
    American Railway Express Company v. H. Rouw Company.
    Opinion delivered April 25, 1927.
    1. Constitutional law — jurisdiction in transitory action.— Crawford & Moses’ Dig., §§ 1147, 1151, 1826, 1829, providing for service of process on agents of foreign corporations, held to permit an action to be brought against foreign corporations engaged in interstate commerce for damages for breach of a contract without violating the commerce clause or the due process and equal protection clauses of the Federal Constitution, where plaintiff is a resident and the foreign corporation was doing business in the State, though the controversy arose from a contract of carriage in which the points of origin and destination and all ■ intervening points were outside the State.
    2.- Courts — transitory action. — An action against an express company for damages for failure to deliver strawberries in as good condition as that in which they were received, held a transitory action, not required to be brought in the State where the contract was entered into or performed.
    3. Corporations — transitory actions. — A foreign corporation, doing business in the State and having a designated agent on whom process may be served, may be sued in any county in this State by serving summons on the agent outside the county in which the suit is brought.
    4. Carriers — necessity of notice of damages. — A carrier, sued for damages to strawberries in transit, could not avail itself of the defense that a written notice of the claim had not been given as required by the contract of shipment, where the jury found that the- damage was due to the carrier’s negligence, since negligence was excepted by the terms of the contract.
    5. Carriers — damage to shipment — burden of proof. — In an action against a carrier for damages to a shipment in transit, the burden is on the plaintiff to prove that the goods were in good condition when delivered to the carrier, and that damage resulted while they remained in defendant's possession as a common carrier.
    6. Carriers — damage to shipment — instructions.—In an action against a carrier for damage to goods in transit, an instruction that the burden was on the shipper to show that the shipment was delivered to the carrier in good condition, and that damage resulted while in the carrier’s hands, was not in conflict with another instruction that the proof of delivery to the carrier in good condition and of delivery by the carrier in bad condition established a •prima facie case of negligence.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Warner, Hardin <& Warner, for appellant.

      C. M. Wofford, for appellee.
   Wood, J.

This is an action by the plaintiff, H. Rouw Company, against the defendant, the American Railway Express Company, in the circuit court of Crawford County, begun June 11, 1925, to recover damages in the sum of $489.50.

The plaintiff alleged, in substance, that, on June 17, 1924, it purchased a car of strawberries at Sarcoxie, Missouri, consisting of 480 crates of berries, which was delivered to the defendant, consigned to W. W. Stevens at Kansas City, Missouri; that plaintiff diverted the car to the Becker-Wiel Company at Detroit, Michigan; that the berries ivere in good condition when delivered to the defendant, but, through the negligence of its agents, servants and employees in failing to re-ice the car, the berries were in a decayed condition when they reached their destination, to the damage of the plaintiff in the sum above named, for which it prayed judgment.

Summons was issued for the defendant, directed to the sheriff of Pulaski-County, and was served by delivering a copy to defendant’s agent designated for service in that county. The defendant moved to quash the service, setting up, in substance, that it was a corporation organized under the laws of the State of Delaware' and operating as a common carrier, with a part of its line running through the States of Louisiana and Arkansas ;■ that the shipment mentioned in the complaint was not transported by the defendant through any part of the State of Arkansas ; that the contract of shipment was not made in the State of Arkansas and was not to be. performed in the State of Arkansas; that the witnesses which the defendant must .call and whose personal -attendance at the trial defendant- must have to properly defend the action, are residents of the States of. Missouri and Michigan, and cannot be subpoenaed to appear in the courts of Arkansas; that the defendant cannot adequately develop the facts in evidence by taking the depositions of these witnesses ; that, to take the depositions' of the witnesses necessary to develop the defense, would interfere with-the defendant’s operations and business as an interstate carrier and would impose a heavy burden on interstate commerce; that the statutes of Arkansas, if construed to allow service of summons upon a foreign corporation engaged in interstate commerce under these circumstances, would be unconstitutional and void, being in contravention of the commerce and due process clauses of the Constitution of the United-States.

The defendant alleged that the statute allowing service on foreign corporations was not intended to permit service upon them in causes arising from transactions foreign to the State of Arkansas, such as is involved herein.

At the hearing of the motion the undisputed testimony 'by the defendant was to the effect that the shipment was as alleged in the complaint and the motion to quash the service, and that the defendant was a foreign corporation doing business in Arkansas, as therein alleged. The superintendent of the defendant, residing at Little Rock, testified that the defendant maintained an office and agent in the city of Yan Burén, Arkansas, and his testimony tended to fully sustain the allegations of the motion to quash as to the inconvenience of procuring the personal attendance of the witnesses for the defendant at the trial if had at Yan Burén, Arkansas; that the personal presence of such witnesses at the trial was essential to the defense, and, if such be required, "it will have quite an effect on defendant’s interstate business.” The witnesses for the defendant, when the shipment was made, were residents of the States from and through which the shipment moved. Some of these witnesses have left defendant’s services.

On cross-examination the witness stated that the defendant had attorneys in the various States where the witnesses lived, who could look after the taking of depositions. Witness assumed that it would require as long a time to try the case in the other States as it would in Arkansas.

The court overruled the motion, and, in doing so, found .that "the cause was a transitory action involving the alleged loss and damage to a carload shipment of strawberries from Sarcoxie, Missouri, to Detroit, Michigan, moving in interstate commerce; that the service had in said cause upon said designated agent is valid, legal and binding upon the defendant.” The appellant duly excepted to the ruling of the court. The defendant answered, denying the material allegations of the complaint, and alleged that, if the berries were damaged as alleged, such damage resulted from inherent defects therein; that the same were heated, wet, rotten, and unfit for shipment; that the berries were negligently loaded by the shipper and negligently handled by the consignee at the place of destination.

The testimony adduced by the plaintiff tended to prove that it .delivered' a carload of strawberries at Sarcoxie, Missouri, for shipment to the Becker-Weil Company at Detroit, Michigan; that the berries were in good condition, and properly loaded for shipment; that they should have carried to Detroit in good condition; that, when they reached Detroit, they were in a decayed condition,, resulting from lack of proper refrigeration.

The testimony on behalf of the defendant tended to prove that there were no defects in the car in which the berries were shipped; that it met all the tests required for property carrying perishable goods, and that the ear was property iced at the point of origin and at the point of destination and at all intervening points necessary for the proper icing of the car. In other words; the testimony for the defendant tended to prove that the shipment was handled from the point of origin to the point of destination without negligence on the part of the carrier; The testimony, both on behalf of the plaintiff and the defendant, tending to prove their respective contentions as to negligence, is voluminous, and we deem it unnecessary to set it forth in detail.

At the conclusion of the testimony, over the objection of the defendant, the court granted prayers for instruction by the plaintiff to the effect that, if. the jury found that the berries were delivered in a good condition to the defendant for shipment, and the same were in a damaged condition when they reached Detroit, the plaintiff had established a prima facie case of liability against the defendant, and the burden was upon .the defendant to show that the damaged condition of the berries was due to no negligence on its part. The court also, over the objection of the defendant, gave other prayers of the plaintiff for instructions, which, in effect, told the jury that the defendant, in the absence of express stipulation to the contrary, was liable as the insurer against loss or damage, except such as was caused by inherent defects or weakness in the commodity shipped, and that it was the duty of the defendant to exercise ordinary care to furuisli means of transportation suitable for the shipment of perishable goods, and to exercise ordinary care to keep same properly iced to preserve such goods until the same were delivered at their destination. The court told the jury that ordinary care was such care as an ordinarily prudent person would use under like or similar circumstances, considering the fact that the shipment was of a perishable nature.

The court refused defendant’s prayer for instruction No. 7, which, in effect, told the jury that, before the plaintiff could recover, it must show by a preponderance of the testimony that the berries were in a good condition for shipment at the time they were delivered to the defendant, and that the defendant failed to exercise ordinary care to ice the same in transit, and negligently failed to furnish proper transportation and to transport the same within a reasonable time, and that such alleged negligent acts were the proximate cause of damage to the plaintiff.

Defendant’s prayer for instruction No. •!! would have told the jury that, if the defendant iced the car before the berries were loaded at Barcoxie, Missouri, and that the car was again iced after the berries were loaded and during transit, then the plaintiff could not recover.

The court granted other prayers of the defendant for instructions which, in effect, told the jury that the burden was upon the plaintiff to prove that the berries were in good condition when they were delivered to the defendant at Sarcoxie, Missouri, and that the damage to such berries, if any, result eel while the same were in defendant’s possession as a common carrier.

The court refused several prayers of the defendant for instructions directing the jury to return a verdict in favor of the defendant generally, as well as on the issue as to whether the car was properly iced, and as to whether or not the defendant ivas negligent in delaying transportation. The defendant duly excepted to the ruling of the court in granting and refusing prayers for instructions.

The jury returned a verdict in favor of the plaintiff in the sum of $200. Judgment was rendered in plaintiff’s favor for that sum, from which is this appeal.

1. The court did not err in overruling appellant’s motion to quash the service of summons and in assuming and retaining jurisdiction of the cause of action. Section 1147, C. & M. Digest, provides,' in part, that service of process may he had by service of summons upon the agent or agents o.f such corporations in the same manner that process may be served on railroad corporations 'existing under the laws of this State.

Section 1151 provides: “Where the defendant is a foreign corporation having an agent in this State, the service may be upon such agent.”

Section 1826 provides, in part, that foreign railroad corporations shall file in the office of the Secretary of State a copy of its charter .or articles of incorporation or association, and shall name an agent upon whom process may be served.

Section 1829 reads as follows: ‘ ‘ Service of summons and other process upon the agent designated under the provisions .of § 1826 at any place in this State shall be sufficient service to. give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit is brought or is pending or not.”

The appellee is a domestic corporation, having its domicile and principal place of business at Van Burén, in Crawford County, Arkansas. The appellant is a Delaware corporation, doing a general express business throughout the United States. It operates* as a common carrier, a .line of cars through the States of Mis-_souri and Arkansas and through the city of Yan Burén, Crawford County, in the latter State. The appellant has complied with our statutes, supra, in designating an agent in our State upon whom process may be served, and appellant transacts business in our State, but the shipment involved in this action began- at Sareoxie, Missouri, and ended at Detroit, Michigan, and did not pass through the State of Arkansas. Appellee instituted this action against the appellant in the circuit court of Crawford County, Arkansas, sitting at Van Bur.en, where appellee had its domicile. It is conceded by. the appellant that summons was served upon the agent of appellant duly designated under our statutes for receiving service of process in this State.

• Learned counsel for the appellant contend that it would violate both the commerce and due process and eqtial protection clauses of the Constitution of the United-States to construe our service statute above so as to enable appellee to maintain this action. To sustain their contention counsel rely upon the cases of Davis v. Farmers’ Cooperative Company, 262 U. S. 312, 43 S. Ct. 556; Atchison, Topeka & Santa Fe R. R. Co. v. Wells, 265 U. S. 101, 44 S. Ct. 469; and State of Missouri ex rel. St. Louis, B. & M. Ry. Co. v. Taylor, 266 U. S. 200, 45 S. Ct. 47.

In the first case mentioned the facts, briefly stated, are substantially as follows: Minnesota- has a statute allowing foreign corporations having an agent in the State to solicit freight and passenger traffic, or either, over its lines outside of the State, to be served with summons by delivering a copy thereof to such agent. The Atchison, Topeka & Santa Fe'Railroad Company, a Kansas corporation engaged in interstate transportation, did not own or operate any railroad in Minnesota, but maintained an agent there for the solicitation of trafile. In April, 1920, suit was brought by another Kansas corporation in a court of Minnesota against the Director General of Railroads, as agent, on a cause of action arising under Federal control. Service was made pursuant to the Minnesota statute; the recovery sought was for loss of grain shipped under a bill of lading issued by the carrier in Kansas for transportation over its line from one point in that State to another. So far as it appeared, the transaction was in no way connected with the State of Minnesota or with the soliciting agency located there. The carrier’s line of railroad did not touch Minnesota, and the plaintiff was not, and never had been, a resident of the State of Minnesota. In the opinion the Supreme Court of the United States, among other things, said: “But orderly, effective administration of justice clearly does not require that a foreign carrier shall submit to a suit in a State in which the cause of action did not arise, in which the transaction giving rise to it was not entered upon, in which the carrier neither owns nor operates- a railroad, and in which the plaintiff does not reside.” The facts of that case therefore differentiate it from the case at bar and we find nothing in the decision to support the appellant’s contention.

In the second mentioned case above it was held, quoting syllabus No. 2: “A State statute permitting’ a citizen and resident of another State to prosecute a cause of action which arose elsewhere, against a railroad corporation of another State, which is engaged in interstate commerce and neither owns nor operates a railroad, nor has consented to he sued, in the State where the action is brought, is so far invalid.” The facts in that ease likewise were wholly unlike those of the case in hand.

In the third case mentioned, the facts are stated in the second syllabus as follows: “A Delaware corporation, having a usual place of business in Missouri, brought an action in a Missouri court against a Texas borporation which operated a railroad in Texas only and had no place of. business, nor had consented to be sued, in Missouri, the cause of action being damage, done possibly in Missouri, to freight- shipped to that State from Texas, over defendant’s line, on a through bill of lading, and the basis of jurisdiction in Missouri being the garnishment of traffic balances due the defendant-from a connecting interstate carrier having a place of business there.” It will be observed that the facts of the last case cited are also wholly dissimilar to the facts of the case at bar.

Counsel for appellant argues that the principle underlying all of the above cases is what they term “balance of convenience,” which forbids a resident of the State of Arkansas from .placing a burden upon other users of the appellant's express facilities in order to conserve his own convenience. Counsel contend that that principle applies here. But not so. This is a transitory action, and this court is thoroughly committed to the doctrine that a foreign corporation doing business in the State, and having designated an agent upon whom process may be served, may be sued on a transitory cause of action in any county in this State by serving summons on the designated agent outside the county in which it is brought. Jacks v. Central Coal & Coke Co., 156 Ark. 211, 245 S. W. 483, and cases there cited. Moreover, avo have early held that it is not against the public policy of this State to open her tribunals to foreign litigants where the controversy grows out of a transitory cause of action.

In St. Louis & San Francisco Ry. Co. v. Brown, 62 Ark. 254, at page 261, 35 S. W., 225, wre said: “The common-law rule is that, where the right of action is transi-.torv in its nature, courts everywhere, when the defendant maybe laAvfully summoned to appear therein, liave jurisdiction,; and, AAhen the suit is governed by statute of the State in Avliich the injury is committed, courts of another State, having similar laAvs, or A\here it is not contrary to its public policy, will enforce such law’s, by the rule of comitv.” Citing cases. See also St. L. I. M. & S. Ry. Co. v. Brown, 67 Ark. 295-299, 54 S. W. 865; St. L. etc. Ry. Co. v. Hesterly, 98 Ark. 240-256, 135 S. W. 874; St. L. etc. Ry. Co. v. Haist, 71 Ark. 258-264, 72 S. W. 893; Kansas City So. Ry. Co. v. Ingram, 80 Ark. 269-272, 97 S. W. 55; American Ry. Express Co. v. Davis, 152 Ark. 259-265, 238 S. W. 50.

In the recent case of National Liberty Ins. Co. v. Trattner, ante p. 480, we held that an action could not be maintained in this State by a plaintiff residing and doiug business in a foreign State against a foreign corporation authorized to do business in this State where the plaintiff’s cause of action arose out of the State, the contract of insurance being made out of the State and the loss occurring out of the State. In that case, among other things, avo said: “The State has no especial interest in enforcing the right of citizens and residents of other States on causes of action arising outside of its boundaries against foreign corporations doing business in the State, but is chiefly-interested in administering justice, under the forms of law, to all persons entitled to seek remedies in its courts, for protection and enforcement of their rights, and for redress of injuries and wrongs, promptly and without delay.” That case is not in conflict, in principle, with the above cases and the case at bar, for there the plaintiff was a nonresident of the State, and left the State of his residence and likewise the State in which the defendant was domiciled and doing business and came to Arkansas simply for the purpose of using our judicial forum to carry on his litigation concerning a matter in which our State had not the remotest interest. In that case it did not appear that the nonresident insurance company had any property in this State. In such a state of facts we held that the rule of comity does not require that our courts of justice be put to the inconvenience and our citizens be put to the expense and annoyance of maintaining court machinery for a litigation wholly between nonresidents in which the people of the State could have no possible interest.

In National Liberty Insurance Co. v. Tratther, supra, we held that such course, under the facts of that case, would be against public policy. But certainly it accords with the public policy of the State to conserve the rights of its own citizens and to enable them to maintain ,any causes of action they may have against foreign corporations in our own tribunals, if service can be had upon them in this State. The appellant was doing business in this State, as a common carrier “having lines of road running through the State.” At any rate, it can readily be seen that courts of this State might, in their discretion, entertain or refuse to entertain jurisdiction of transitory causes of action arising out of acts of negligence in another State by a nonresident plaintiff against a nonresident defendant, and yet not be inconsistent if they entertained jurisdiction of such causes of action in favor of resident plaintiffs against nonresident defendants. Refusing jurisdiction in such cases to nonresident plaintiffs against nonresident defendants is one thing; refusing jurisdiction to resident plaintiffs against nonresident defendants is altogether a different thing,

The Court of Appeals of New York, in Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 139 N. E. 223, 32 A. L. R. 1, says:

‘ ‘ The courts of this State may entertain jurisdiction of a negligence case arising' in another State, whether the plaintiff is a resident or nonresident of this State. As to nonresidents, the courts have many times refused to entertain jurisdiction in the exercise of their discretion.' As to a resident, .however, a different question arises and a different law is applicable. Can the Supreme Court refuse to hear a case against a foreign corporation, brought' by one resident of • this State, where the tort occurred outside the State, and entertain jurisdiction for another resident upon the same state of facts? If it has discretion to refuse jurisdiction in the one instance, it must have a like discretion to entertain it in the other. Discretion implies a power to make a choice. We do not think that, as to a resident of this State, the court has any such discretion. ’ ’ • See same case, 32 A. L. R., page 1, with copious annotations on every phase of the subject, and especially page 29, subdiv. 3, “Jurisdiction cannot be declined.”

2. The contract of shipment contains the following:

“Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing, to the originating or delivering carrier, within four months after delivery of property.”

Under the express terms of the contract, thé provision. requiring written notice of damages cannot avail the appellant, because the testimony tended to prove as a fact that the berries were damaged in transit through the carelessness or negligence of appellant, in not properly icing- the car. The positive testimony on this issue ivas sufficient to carry the same to the jury, and the verdict of the jury in favor of the appellee is conclusive here.

The court, at the request of the appellant, correctly instructed the jury that the burden was on the appellee to prove that, the berries were in good condition when delivered to the defendant for shipment at Sarcoxie, Missouri, and that the damage to such berries, if any, resulted while the same were in defendant’s possession as a common carrier. The court instructed the jury, at. the instance of the appellee, that, if the berries were delivered to the appellant, in good condition for shipment, and the same were in a decayed and damaged condition when they reached Detroit, the appellee had established a prima facie case of liability against the appellant, and that the burden was then on the appellant to show that, the damaged condition of the berries ivas due to no negli-. gence on its part. We believe the instructions wore not in conflict, because the trial court- did not, in effect, as a matter of law, tell the jury that the appellant, under the evidence, was guilty of negligence. The charge, taken as a whole, left, the issue to the jury under the evidence, and, as we view.it, instructed the juiy that the-burden on that issue was with the appellee on the whole case to establish negligence. It. did not shift the burden on this issue to the appellant. If this is the correct view of the charge as a whole, it could not. have misled the jury, ivas not prejudicial to the appellant, and was in conformity with the law as announced bv this court in C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 109, 227 S. W. 12; Mo. Pac. Rd. Co. v. Bell, 163 Ark. 284, 259 S. W. 745; Mo. Pac. Ry. Co. v. Wellborn & Watts, 170 Ark. 469, 280 S. W. 18, and cases there cited. Nor is the charge, as we thus construe it, in conflict with the decisions of the Supreme Court of the United States in So. Ry. Co. v. Prescott, 240 U. S. 632-640, 36 S. Ct. 469, and C. & O. Ry. Co. v. Thompson Mfy. Co., 270 U. S. 416. 46 S. Ct. 318. In the last case the Supreme Court -of the United States said:

“The respondent therefore had the 'burden of proving the carrier’s negligence as one of the facts essential to recovery. When he introduced evidence to show delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner (carrier) became subject to the rule applicable to all bailees, that such evidence makes out a prima fade case of negligence. The effect of the respondent’s evidence was, we think, to make a prima fade case for the jury. But, even if this prima fade case be regarded as sufficient, in the absence of rebutting evidence, to entitle the plaintiff to a verdict, the trial court erred here in deciding the issue of negligence in favor of the plaintiff as a matter of lave ’ ’

The trial court in the case at bar made no such mistake as that, but submitted the issue of negligence to the jury under the evidence, and, as Ave have said, placed the burden in the Avhole case on that issue upon the appellee.

There is no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.


author: Smith, J.

text:
    Stout Lumber Company v. Green.
    Opinion delivered April 25, 1927.
    1. Judgment — effect as to strangers. — Judgments establishing laborers’ liens on lumber are not binding on a purchaser of lumber not a party to such suits, who sued in replevin to recover possession of the lumber from a constable holding it under attach- • ments.
    2. Logs and logging — right to laborers’ lien. — Under Crawford' & Moses’ D*g., § 6848, a laborer’s lien on lumber can be acquired only by persons performing services in its manufacture.
    3. Logs and logging — laborer’s lien — lien for purchase price.— Under Crawford & Moses’ Dig., § 6848, the seller of logs has no lien on lumber produced for the purchase price or for services of others in hauling logs paid for by him.
    4. Logs and logging — innocent purchaser — jury question. — In an action to replevy logs from a constable holding under attachments, the question whether plaintiff was an innocent purchaser held properly submitted to the jury.

      Appeal from Ouachita Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      Gaughan é Sifford, for appellant.

      Ilaynie, Parks S Westfall, for appellee.
   Smith, J.

J. H. Willson and three other parties brought separate suits in the court of a justice of the peace to enforce laborers’ liens against a certain car of lumber as the property of M. L. Allen. These suits were begun on September 9, 1925, and attachments were issued and levied upon the lumber the same day. Two days later the Stout Lumber Company brought suit in replevin in the circuit court to recover possession of the lumber.

It was alleged in the complaint filed in the replevin suit, and testimony was offered tending to show, that, on February 6, 1925, the plaintiff lumber company, hereinafter referred to as. plaintiff, entered into a contract whereby the plaintiff bought from Allen all the pine lumber which he should manufacture at his mill up to the first of September, 1925. The contract provided that Allen should cut and stack the lumber on his yard, and the plaintiff would have the lumber checked up by its inspector and would advance to Allen $10 per thousand feet, and that, upon this advance being made, plaintiff should become the owner of the lumber. Allen was to haul the lumber, after the advance was made, and load it in the cars for shipment to plaintiff, and, when the lumber Avas received by plaintiff on its yards, it Avas there scaled and the balance of the purchase money,, if any, was then credited to Allen.

The testimony shoAvs that plaintiff had advanced Allen $10 per thousand feet on all the lumber on'Allen’s vard up to August 8, and that the mill was destroyed by fire some time during that month, and that, at the time the car in question Avas lpaded, Allen Avas indebted to the plaintiff in the sum of $28.

Judgments Ayere rendered in favor of the plaintiffs in the justice court, on October 3, and laborers’ liens in their favor Avere declared, and-these plaintiffs thereafter intervened in the replevin suit in the circuit court, and, in their interventions, set up the judgments rendered in their favor. The plaintiff lumber company was not made a party to the justice suits, and these suits were pending and undecided at the time the sheriff took possession of the car of lumber under the order of delivery which was issued in the replevin suit.

In the trial of the replevin suit in the circuit court plaintiff offered testimony tending to show that the plaintiffs in the attachment cases, hereinafter referred to as interveners, were not entitled to liens on the lumber attached. This testimony was to the effect that the lumber attached had been taken up and advanced upon before the labor was performed for the nonpayment of which the interveners sued, and„ in the case of Willson, the testimony of plaintiff was to the effect £hat Willson had performed no labor whatever, but had only sold logs to Allen at $6 per thousand feet stumpage.

It was shown by interveners that, on the day of the trial in the justice court, an attorney representing the plaintiff was present and attempted, without success, to effect a settlement of these cases. Plaintiff contends there was no other testimony tending to show notice of the demands of the interveners at the time of its purchase of the lumber, if such claim were existent at that time, except the testimony of Willson to the effect that, about the middle of June, he told E. C. Holmes, the inspector of the plaintiff, that he had a claim for hauling against Allen which was at the time unpaid.

Upon the trial of all the issues in the replevin suit in the circuit court the jury returned verdicts in favor of each of the interveners for the several sums claimed bv them for Avhich judgments had been rendered in the justice court, aggregating $107.82, and from the judgment accordingly is this appeal.

Plaintiff sought to have submitted the question whether the interveners were entitled to liens, and to this end requested an instruction numbered 5, AAdiich Avas to the effect that the judgments recovered in the justice court by interveners were not binding on the plaintiff lumber company, and that said judgments should not be considered as establishing a lien upon the lumber in controversy. An exception was saved to the refusal of the court to give this instruction.

We think it was error to refuse this instruction numbered 5. The interveners knew, before the trial of the cases in the justice court, that the plaintiff lumber company claimed title to the lumber attached, and, if they wished to foreclose this claim, they could and should have made it a party to that suit. This they did not do, and, as the plaintiff was not made a party to those suits, it is not bound by the judgments rendered therein, and the court should have so declared the law.

In the case of Beiderman v. Parker, 105 Ark. 86, 150 S. W. 397, it was said: “It is well settled that a judgment is only conclusive between the parties or their privies. (Citing* cases). As wc have already seen, the Robinson Lumber Company was not a party to the attachment suit bef ore the justice of the peace, and it is well settled in this State that a judgment is evidence of nothing in a subsequent action between different parties, except that it had been rendered.” (Citing cases).

The court should therefore have submitted to the jury the question whether the interveners did, in fact, have liens, and, to this end, instruction numbered 5 should have been given.

As the cause must be remanded, we take occasion to say that interveners are not entitled to liens unless services were performed by them in the manufacture of the lumber attached, and, if this lumber was inspected and taken up before their services were performed, as plaintiff contends, they have no liens on that lumber. As to the claim of Willson for a lien, it may be said that he has no laborers’ lien for any part of the purchase price of the logs, nor has he a lien for services performed by others in hauling the logs, although he paid for that labor. The statute does not so provide. Section 6848, C. & M. Digest. An instruction so declaring the law should have been given.

It is insisted by interveners that the court erred in submitting to the jury, in instruction numbered 7, given at plaintiff’s request, the question whether plaintiff was an innocent purchaser of the lumber. This instruction reads as' follows: “You are instructed that if, at the time the car of lumber was purchased by the Stout Lumber Company by virtue of its having checked the lumber and advanced $10 per thousand feet, and you find that the Stout Lumber Company had no notice of the claim for lien on the part of interveners at the time title passed to plaintiff, you will find for the plaintiff.”

In support of this contention the case of Bard v. Van Etten, 72 Ark. 494, 82 S. W. 836, is cited. In that case it Avas held that “one Avho purchases property subject to a laborer’s lien cannot claim to be a bona fide purchaser if he paid the entire purchase money by crediting thé Adnclor Avith the same on his preAdous indebtedness to himself. ’ ’ But such, according- to plaintiff’s contention, are not the facts here. The contract between the plaintiff and Allen required advances to be made upon inspection, these advances being partial payments of the purchase price. The contract provides that the title shall pass upon these advances being made, such being the necessary effect and construction of the contract, and to evidence that fact it was provided that marks or symbols might be placed on the stacks of lumber inspected and advanced upon for purpose of identification. Lee Wilson Co. v. Crittenden County Bank & Trust Co., 98 Ark. 379, 135 S. W. 885.

It Avas proper therefore to submit the question Avhether the plaintiff was an innocent purchaser. Clark v. Wilson, 171 Ark. 323, 284 S. W. 23.

For the errors indicated the judgment must be reversed, and the cause Avill be remanded for a neAv trial.


text:
    Tandy v. Smith.
    Opinion delivered April 25, 1927.
    1. Curtesy — vested estate. — A husband’s curtesy in his deceased wife’s land vests upon her death.
    2. Descent and distribution — father as heir of son dying childless. — Where a son died leaving lands as a new acquisition and no children or creditors,’ his father, as next kin, and his widow eaeh took a half interest therein in fee, under Crawford & Moses’ Dig., §§ 3480, 3536.
    3. Family settlement — validity.—Where a widow and her father-in-law each had vested interests in her deceased husband’s real estate, a family settlement whereby each of them executed- a quitclaim to the other of an interest in such estate was binding, being supported by mutual consideration.
    4. Dower — conveyance by widow before assignment. — Conveyance by -a widow of a dower right in her husband’s property before assignment of dower, though unenforceable at law, is enforce- ' able in equity.
    5. Deeds — recital of consideration. — Where a deed recited the payment of a consideration, the grantor will not be heard, to question the validity of the deed for want of a consideration.
    Appeal from Mississippi 'Chancery Court, Osceola District; J. M. Futrell, Chancellor;
    affirmed.
    ■ Gladish’S Taylor, for appellant.

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

Harry Tandy, who died November 30, 1918, owned, at the time of his death, two small tracts of • land and two lot's in the town of Osceola. He inherited the lands from his mother, but he had bought the town lots. The lots were adjacent, but had been purchased at different times. The first lot purchased had been paid for, but most of the purchase money for the second lot was unpaid at the time of Harry Tandy’s death, and was evidenced by two notes payable to his grantor for $164 each. Harry Tandy left no children, but ivas survived by his father, M. C. Tandy, and his wife, Rosie Tandy, who continued to live on the town lots, which comprised her husband’s homestead at the time of his death.

Rosie Tandy and M. C. Tandy conceived the idea of dividing the estate of Harry Tandy, and they evidenced the agreement reached to that effect by executing deeds to each other. The deed from Rosie Tandy to M. C. Tandy, in addition to a consideration of one dollar, recited the fact that it was executed for the purpose of effecting a division of the estate of TIarry Tandy between his widow and his father, and conveyed to M. C. Tandy the following property, to-wit: A tract of land known as the Harry Tandy woodsland, in the south half of the northeast quarter of section 6, township 12 north, range 10 east. The deed from M. C. Tandy to Rosie Tandy also recited a consideration of one dollar paid, and that it was “executed for the purpose of dividing the estate of Harry Tandy between M. C. Tandy, father of Harry Tandy, and Rosie Tandy, widow of Harry Tandy,” and that, in consideration of the execution of the deed to M. 0. Tandy for the land in section 6, he thereby conveyed to Rosie Tandy a fourteen-acre tract of land in the southeast quarter of the southwest quarter of section 5, township 12 north, range 10 east, known as the Harry Tandy cleared land, and also the Harry Tandy homestead, consisting of the two lots in Osceola. These deeds were executed and delivered on November 1, 1919.

Harry Tandy appears to have owed no debts at the time of his death, except the unpaid purchase money due on one of the town lots, and, after the execution of the deeds described above, Rosie Tandy paid this indebtedness and discharged the lien reserved in the deed to the lots to secure this purchase money.

Rosie Tandy died testate March 13, 1925, and, by her last will and testament, devised all of her property to her sistei', Marie Smith. M. C. Tandy brought this suit against Marie Smith to cancel the deed executed by him to Rosie Tandy and to have partition of the property, and, as grounds therefor, alleged that the execution of the deed from him had been procured by fraud, and that he had no interest in the property conveyed at the time of •the execution of the deed. The complaint was dismissed as being without equity, and this appeal is from that decree. But little testimony was offered in support of the allegation of fraud, and the court below found the fact to be that there was no fraud, and that allegation is not here relied upon. But it is insisted, upon behalf of appellant, that his deed conveyed nothing, for. the reason that he had no interest subject to conveyance, that he had a mere contingent remainder interest, which did not pass as an after-acquired title under his deed when this contingent remainder vested upon the death of the widow of his son.

The deeds were quitclaim deeds, and appellant cites cases in which it was held that,'where one executes a quitclaim deed, he conveys only such interest as he then owns, and that another title subsequently acquired does not pass as an after-acquired title, under § 1498, C. & M. Digest. This section provides: “If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwárds acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance. ’ ’

The contention that appellant had no interest which he could convey may be disposed of by saying that appellant mistakes the interest which he owned in the property conveyed. No debts were probated against the estate of Harry Tandy, and the only debt he owed was paid by his widow. He had no children. Harry Tandy owned land, which was an ancestral estate, and town lots, which were a new acquisition, and constituted his homestead and became the homestead of his wife after his death. Section 5523, 0. & M. Digest. Appellant had an estate by the curtesy in the lands which Harry Tandy had inherited from his mother, appellant’s wife. This estate was in no manner contingent. The town lots were a new acquisition, and, as there were no children or creditors, the widow was endowed of one-lialf of tins property, under § 3536, C. & M. Digest. M. 0. Tandy, as the heir of his sou, took a life estate to the other half of the lots, which, upon his death, descended in remainder to the collateral kindred of his son, Harry Tandy. Section 3480, C. & M. Digest. His right to the possession of this half as life tenant was subject to the homestead rights of Rosie Tandy, the widow, but this postponement of the right to possession did not make his interest a contingent remainder, as appellant contends. liis rights .were vested, and not contingent, although his right to occupy and enjoy was postponed by the widow’s homestead right.

It is true that M. C. Tandy was much older than Rosie Tandy, and therefore had less expectancy of life, although he survived her, but this did not make liis interest a contingent remainder. In the case of McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387, we quoted with approval the following statement of the law from the ease of Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195:

“2. A remainder is contingent where the right of the remainderman to succeed to the possession and enjoyment of the estate depends upon some contingency which may never arise, or where the person who is entitled to succeed to the possession and enjoyment at the. termination of the life tenancy is not, and may never be, ascertained, or is not in being. In general, it is the present capacity of taking in possession, if the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. ’ ’

Here only the life of Rosie Tandy stood between-M. C. Tandy and his right to the possession and occupancy of a half interest in the lots for his life, and only the termination of the right of homestead was necessary to vest the right of possession and occupancy in him. He had this right when he executed the deed to Rosie Tandy: He did not inherit anything from her, nor did he acquire any estate upon her death which he did not previously own. He had a vested remainder during her life, and he cannot therefore be heard to say that he has now an estate which he did not own when he executed his quitclaim deed and which did not pass by, his deed to her.

It is true, as appellant contends, that no order of court had ever assigned dower to Rosie Tandy, and that a widow’s right of dower in her husband’s property cannot, before assignment to her in the manner provided by law’, be conveyed by her to a stranger so as to confer on him-rights capable of assertion in a court of law, but such a conveyance is enforceable in equity, and this is a suit in equity. Flowers v. Flowers, 84 Ark. 557, 106 S. W. 949; Baum v. Ingraham, 141 Ark. 243, 216 S. W. 704; Arbaugh v. West, 127 Ark. 98, 192 S. W. 191; Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Weaver v. Rush, 62 Ark. 51, 34 S. W. 256.

The deeds exchanged between M. C. Tandy and Rosie Tandy are in the nature of a family settlement, and should be upheld as such. She conveyed and relinquished to him whatever interest she had in the-rvoodslands, and, for this consideration, whatever its value may have been, he conveyed to her his interest in the remainder of his son’s estate.

Appellant testified that the dollar recited as paid was not in fact paid, but lie makes no showing that any fraud was practiced upon him in having the deeds recite, as herein shown, that the}7 were executed to divide the estate of Harry Tandy between his widow and father.

In the case of Hampton v. Haneline, 125 Ark. 441, 180 S. W. 40, it was said:

“The grantor makes the deed. The presumption is that he had the real consideration recited therein, and, in the absence of testimony tending to show that the pecuniary consideration named in the deed rvas inserted therein by mutual mistake or by some fraud practiced upon the grantor at the time he signed the deed, neither the grantor nor those claiming under him can be permitted to question the consideration named in the deed for the purpose of invalidating the same. See Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Wallace v. Meeks, 99 Ark. 350-354, 138 S. W. 638.”

Appellant lias here no after-acquired title which he did not own when he executed his deed to Rosie Tandy, and this suit, based upon the assumption that his deed was void and conveyed nothing, was therefore properly dismissed as being without equity. The decree appealed from is therefore affirmed.