text:
    Metropolitan Discount Company v. Flippo.
    Opinion delivered March 31, 1924.
    Bills and notes — innocent purchaser. — -Evidence that a novelty company was engaged in the business of selling worthless jewelry and selling trade acceptances received therefor to plaintiff for 15 years, that plaintiff had bought from the novelty company 40 sets of acceptances during the preceding year, that when payment was refused by defendant they were not protested, and no effort was made to collect them from the novelty company, held to warrant a finding that plaintiff was not an innocent purchaser.
    Appeal from Lawrence Circuit Court, Western District; Bene H. Coleman, Judge;
    affirmed.

      W. E. Beloate, for appellant.
    The court erred in not rendering judgment for the appellant. 128 Ark. 299.

      L. B. Poindexter, for appellee.
    128 Ark! 299, relied upon by appellant, has no application to the facts of this case. The findings of the court were amply sustained by the testimony. 94 Ark. 426; 105 Ark. 281; 90 Ark. 93; 95 Ark. 368; C. & M. Dig., § 7822; 8 C. J., § 811, p. 505; 156 Fed. 525; 20 Idaho 669, Where a manufacturer offers his goods for sale, and the opportunity for inspection is not present, the vendee necessarily relies on his knowledge of his own manufacture, and the law implies a warranty that the articles shall he merchantable and fit for the purposes for which they were intended. 48 Ark. 325; 53 Ark. 155; 72 Ark. 343; 38 Ark. 15.
   Humphreys, J.

This suit was instituted by appellant against appellees in the magistrate’s court in Lawrence County, Western District, upon five trade acceptances dated July 19,1920, arising out of the purchase of goods by appellees from the National Novelty Import Company, of Saint Louis, Missouri. The acceptances were assigned in blank, before maturity, to appellant by the novelty company. Appellant claimed to be an innocent purchaser of the paper.

Appellees interposed the defense that the traveling-salesman of the novelty company misrepresented the kind and class of goods for which the acceptances were given, and that appellant was not an innocent purchaser of them.

The case was appealed from the magistrate’s court to the circuit court of said county, where it was tried by the court, sitting as a jury, upon the testimony introduced by the respective parties, which resulted in a finding that the goods were misrepresented by the traveling-salesman to appellees, and that appellant was not an innocent purchaser of the trade acceptances. A judgment was rendered in accordance with the finding, from which an appeal has been duly prosecuted to this court.

The testimony introduced by appellant tended to show that the goods were purchased under a written con-, tract describing the kind and class thereof, and that the goods shipped conformed in every way to the goods purchased, and also tended to show that appellant was an innocent purchaser of the acceptances for value before maturity. Officers of both companies testified that on August 25, 1920, appellant purchased them for cash and 10 per cent, discount, and that they were assigned in blank to appellant by the novelty company. The written contract was not introduced in evidence. Appellant introduced a letter from R. L. Flippo of date August 12, 1920, immediately after the receipt of the goods, stating that they were O. K., but that the assortment contained too much jewelry, that they could not sell enough of it in such a small town to think of taking it, and requesting that they be permitted to return same.

The testimony introduced by appellees tended to show that the sale was made verbally, without sample, by the traveling salesman of the novelty company. Mrs. R. L. Flippo testified, in substance, that she purchased a set of novelty goods costing $296 upon the representation of the traveling salesman that they would be salable in Powhatan, where she and her husband were conducting business; that the set consisted of cases, purses, men’s pocketbooks, silverware, etc.; that, when the goods came, the set consisted almost entirely of cheap jewelry, such =as $7 diamond rings, etc.; that the lot contained no pocketbooks or silverware, and only one case and seven purses; that it was impossible to sell the cheap jewelry; that they immediately informed the novelty company of the situation, requesting permission to return the goods, which request was refused; that they returned them anyhow, but the novelty company shipped them back; that, in the correspondence ensuing between them, the novelty company claimed to have a written contract signed by herself and husband, and sent a purported copy of same to them; that they never signed such a contract; that on September 1, 1920, Lewis T. Scoville, secretary-treasurer of the novelty company, wrote them that he sold the acceptances to the •Central National Bank of St. Louis, and that proper steps would be taken to collect them unless paid as they matured; that they wrote to appellant on August 30, 1920, informing it that the goods had been misrepresented and advising it not to buy the acceptances, to which they received a reply that it had bought said acceptances from the novelty company on August 25,'1920.

The record , also shows that appellant had bought about forty sets of such acceptances, amounting to over $5,000, from the novelty company during- the year preceding; that it had been buying acceptances from said company for many years; that the acceptances in question were assigned to it in •blank, and that when appellees refused to pay them they were not protested; that they were not charged back to the novelty company, and no attempt was made to collect them from it.

Appellant contends for a reversal of the judgment under the claim that the testimony thus detailed contains no substantial showing that the goods were misrepresented in kind and class,- or that appellant -purchased the acceptances in bad faith. "We think otherwise. The record reflects that appellant sold an assortment of novelty goods to appellees, such as cases, purses, etc., which would be salable in a small town, and shipped them a lot of worthless jewelry, which could not be sold. The verdict upon this issue is sustained by evidence of a substantial nature. The record also .reflects that the novelty company had been engaged in this kind of business for a long period of years, and had been selling* its acceptances received for this worthless kind of stuff to appellant and other St. Louis concerns for perhaps as many as fifteen years; that appellant had bought about forty sets of these acceptances, amounting to -over $5,000, the year preceding this sale; that these particular acceptances were not protested when -appellees refused to pay them, and that no effort was afterwards made to collect them from the novelty company; that the -secretary-treasurer of the novelty company claimed to have sold them to the Central National Bank of St. Louis, when, in point of fact, they had been previously transferred to appellant. W e think the court was warranted in finding, from the long-course of dealing- between appellant and the novelty company, and the loose manner in which they dealt with each other, that appellant was aware of the fraudulent sales being made by the novelty company. The facts and circumstances of the instant case bring it well within the case of Metropolitan Discount Co. v. Fondren, 121 Ark. 250. In that case it was ruled that there was sufficient testimony to support the finding that appellant was not an innocent purchaser of acceptances which had been purchased by it from the National Novelty Import’ Company received in exchange for worthless jewelry.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Bates.
    Opinion delivered March 3, 1924.
    1. Master and servant — negligence op fellow-servant — jury question. — In an action for wrongful death of a roundhouse hostler, killed while oiling a turntable, which was set in motion without warning by a section foreman, evidence as to whether such foreman moved the turntable, in violation of the rule and without permission, held to require submission of the issue to the jury.
    2. Pleading — legal conclusion. — In an action for the wrongful death of an employee, an answer containing merely a general statement that deceased was guilty of contributory negligence, without stating the facts on which the contributory negligence was based, was insufficient.
    3. Appeal and error — question not raised below. — In an action for a wrongful death, objection that the defense of contributory negligence was not sufficiently pleaded could not be raised for the first time on appeal where it was treated below as properly pleaded.
    4. Master and servant — instruction ignoring defenses. — In an action for death of a roundhouse hostler, killed while oiling a turntable which was set in motion by a fellow-servant, an instruction was erroneous which ignored the defenses that the fellow-servant was authorized to move the turntable and not negligent in doing so, and that deceased’s death was caused by his own negligence in leaving the switch connected as a signal that the turntable was ready to be used.
    5. Master and servant — duty to obey rules. — Since it is the duty of a servant -to obey the rules prescribed by the master' for the servant’s protection, it was improper to leave to the jury the question whether it was the servant’s duty to obey such rules.'
    6. Master and servant — contributory negligence — instruction. —In an action for the death of a roundhouse hostler in Oklahoma, where contributory negligence is an absolute defense, it was error to refuse to give an instruction submitting the issue whether . deceased’s negligence in disregarding the master’s instructions caused his death.
    Appeal from Crawford' Circuit Court; James Cochran, Judge;
    reversed.

      W. F. Evans and Warner Hardin & Warner, for appellant.
    1. The plaintiff is barred of recovery by the contributory negligence of the deceased. It is a uniform rule that, if an employee sustains an injury by reason of his violation of the employer’s rules, regulations, orders or commands, he will be barred from any right of recovery from the employer, on the ground of the latter’s negligence. 129 Ark. 520; 124 Ark. 437"; 100 Ark. 380; 82 Ark. 334; 85 Ark. 237; La'batt, Master & Servant, 2d ed., § 1279; 74 Atl. 283; 99 N. W. 220; 49 So. 942; 46 S. E. 17; 96 Ark. 461. The cause of action sued on arose in Oklahoma, wheré. contributory negligence is a defense barring recovery. 129 Pac. 747. And the laws of that State will govern as to liability. 113 Ark. 265; 64 Ark. 291. Contributory negligence should be inferred as a matter of law, whenever the injury results from the servant’s noncompliance with a specific order given by the master or his representative. Labatt, Master & Servant, 2d ed., § 1279; 75 Atl. 970; 86 Pac. 650; 21 Pac. 679; 80 Atl. 565; 120 N. W. 281; 75 Pac. 749. If deceased had obeyed his instructions he would not have been injured. Obedience to rules and regulations intended for his protection was a duty he owed, and failure therein rendered him guilty of contributory negligence. 18 R. C. L. 659, § 152; 23 A. L. R. 309. Choice by the servant of a dangerous way to discharge a duty, with knowledge of the danger, a safe way being available, of which he is advised, constitutes contributory negligexice, precluding recovery. 49 So. 792; 105 111. App. 594; 123 S. W. 22; 61S. E. 657; 71 Atl. 1053; 108 Fed. 747.
    2. Instruction No. 1, given at plaintiff’s request, was erroneous and prejudicial in that it ignored material issuep in the ease supported by abundant testimony. 93 Ark. 564; 149 Ark. 270, 283; 77 Ark. 128; Id. 201; 95 Ark. 108. Being inherently erroneous, a specific objection was not necessary; yet a correct instruction covering these issues requested by the defendant amounted to a specific objection to the erroneous instruction. 153 Ark. 454.
    3. The principle involved in instruction 9 requested by the defendant is sound and correct, and the court erred in refusings it. Labatt, Master & Servant, 2d ed., § 1279; 43 N. E. 181; 7 So. 94; 92 111. App. 74; 56 N. W. 846; 136 Fed. 162.
    4. The modification of instruction 10 requested by defendant, served only to confuse and mislead the jury and completely nullified it. The proposition intended to be submitted was covered by no other instruction, and the modification was clearly erroneous. 98 Ark. 22.

      Sizer & Gardner and G. L. Gramt, for appellee.
    1. It is shown that it was Bates’ duty to operate the turntable, and that Cox had no right to start it up or run it; that, if any employee desired to use the turntable, and Bates was not there, it was the duty of such person to signal for Bates, a regular signal being provided for that purpose, and' to wait for Bates to come and start the turntable, and that employees were under orders to see the hostler or his helper, Bates, if they wanted to use the turntable. The burden of proving contributory negligence whs upon the defendant, and the law presumes the deceased to have been careful until the contrary affirmatively appears. 48 Ark. 460, 475 ; 46 Ark. 423, 437; 78 Ark. 355, 361. Cox’s testimony was not sufficient to overcome this presumption, and insufficient to require the court to take the case from the jury. 165 B. W. (Ark.) 951, 952; 93 Ark. 227; 82 Ark. 86, 89; 114 Ark. 393, 397.
    2. No merit in the objections to instruction No. 1. Other instructions were submitted along with No. 1, which concretely submitted the question of contributory negligence. If appellant was dissatisfied with the concluding part of the instruction, it should have made specific objection and suggested proper changes. 149 Ark. 533.
   McCulloch, C. J.

Appellee’s intestate, Marion E. Bates, was killed while working in the service of appellant at Sapnlpa, in the State of Oklahoma, and this action was instituted, to recover damages sustained by the widow and next of kin of the decedent on account of such death, which, it is alleged, was caused by the negligence of other servants of appellant in the operation of a turntable. There was a trial of the cause before a jury, which resulted in a verdict in favor of appellee for recovery of damages.

Bates was employed as a hostler’s helper at the turntable, his immediate superior being J. T. Horn, the hostler of the roundhouse. The duties of Horn and 'Bates were to put engines in and out of the roundhouse, using the turntable for that purpose, and to keep the machinery in operating condition — among other things, to put grease and oil in the cups through which they were supplied to the bearings of the machinery. The turntable was operated by electricity, and the motor and other machinery were situated in a cab, or housing, on the side of one end of the turntable. In a box inside of the cab there was a switch which turned the electricity on and off. When the door of this box was closed, the switch was connected so as to turn on the electricity, but, when the door of the box was open, the switch was disconnected. The machinery which moved the turntable was put in motion by a lever inside the cab. There was a sliding door in the housing around the machinery, and the grease-cups could be reached by a man getting partially inside of the housing through this sliding door. It was Bates’ duty to grease the cups, and he was engaged in that duty when he came to his death, his body being partially inside of the housing, with his feet and legs sticking out.

There was testimony introduced by the appellant tending to show that it was not necessary for Bates to go inside of the housing to grease the cups, and that they could be reached, some of them, by the worker sitting in the hole or niche in the wall of the table-pit, and that others could be reached while standing in the pit underneath the cab.

When the death of Bates occurred, he had, as before stated, crawled into the housing- to put grease in the cups, and had left the switch open. Cox, a negro foreman of a labor gang,'came up with his gang, and desired to put a push-car on the turntable and thence into one of the stalls of the roundhouse. He caused his men to push the car onto the turntable, and then went into the cab, where the switch-box was found to be open and the switch connected, and,- taking hold of the lever, he set the turntable in motion. After the turntable moved a few feet, it caused a jerk, and Cox, according to his testimony and that of other witnesses, stopped the movement of the turntable by use of the lever, and, after looking around and seeing nothing, started the turntable, again, when there was another jerk, and, on further examination, it was found that Bates’ body had been drawn into the machinery by the movement of the table, and crushed. He died in a very short time, without recovering consciousness.

It was, according to the undisputed testimony, the duty of Bates to move the turntable when he was present. His duties frequently called him away. According to the testimony adduced by appellee, no one else except Bates, Horn, or the electrician, Ford, was authorized to move the turntable, and if any other employee desired the table to be moved, in the absence of either of the three mentioned above, it was his duty to hunt up one of these persons for the purpose of having the table moved.

It is undisputed that Cox set the table in motion, and, according to the testimony of appellee, Cox had no right to do that, in the absence of Bates or the other two persons who had authority to permit the table to be moved. On the other hand, appellant introduced testimony sufficient to warrant a finding that it was the duty of Bates to connect the switch when the turntable was to be used and disconnect it when it was not to be used, that the opening of the switch-box was a signal that the switch was connected and the table ready for use, that any of the gang foremen, including Cox, was authorized to use the turntable when the switch was found to be -connected, and that these foremen frequently used the turntable in that way.

The testimony of appellant tends to show that Bates was instructed by his superiors not to go into the machinery of the turntable for the purpose of greasing the cups without disconnecting the switch, and that the switch was not to be connected except when the turntable was in readiness to be moved by any one who was authorized to use it.

It is thus seen that, according to the undisputed evidence, the switch was connected when Cox set the machinery in motion, and the principal issue of fact in the case narrowed down to the question whether or not Cox was authorized to move the turntable when he needed to do so and found the switch connected.

It is contended by counsel for appellant, in the first p-lace, that the evidence is not sufficient to support the verdict in favor of appellee on the issue of negligence, but we do not think that this contention is sound. The evidence adduced by appellee shows that Cox had no right to move the turntable, in the- absence of Bates, and that it -constituted negligence on his part, for which appellant was responsible, if he moved the turntable in violation of the rules. On the other hand, if, as the evidence adduced by appellant tended to show, there was an established rule that Bates was to connect the switch as a signal for the readiness of the turntable to be used, or disconnect it when the table was not to be used, and the gang foremen had a right to use the table when they found the switch -connected, then, if Bates concealed himself in the housing without disconnecting the switch, there was no negligence on the part -of Cox in moving the machinery, and the death -of Bates resulted from his own negligent act in failing to disconnect the switch. These were issues of fact which should have been properly submitted to the jury, and which the court had no right to take from the jury, either by a peremptory instruction or by omissions from the court’s charge.

It is insisted in the oral argument here, for the first time, that contributory negligence was not pleaded by appellant in its answer — that the language of the answer in regard to contributory negligence was a mere statement of a conclusion and not a statement of facts which constituted contributory negligence on the part of Bates. The answer in this regard was merely a general statement of contributory negligence on the part of Bates, and it contains no statement of facts upon which the charge of contributory negligence is based. We are of the opinion that it is merely a statement of a conclusion, and is not sufficient. The authorities cited by appellee’s counsel in the oral argument sustain this contention. But, as before stated, this question was raised for the first time in the oral argument. There was not only no objection made to the answer in the lower court, but testimony on the issue of contributory negligence was introduced by appellant without objection, and the court gave instructions on that subject, both at the instance of appellant and appellee. One instruction was given by the court, on appellee’s'own motion, referring to this issue in the case and reciting that contributory negligence had been pleaded. There was no intimation given in any form during the trial below that the sufficiency of the plea of contributory negligence was challenged, and to permit the introduction of that question here for the first time would be manifestly unjust. In other words, it would be permitting a masked battery to be opened here for the first time. We must therefore treat the question of contributory negligence as. having been properly presented in the trial below.

The court g*ave the following’ instruction at the request of appellee, over the objections of appellant:

“1. The court instructs the jury that, if you shall believe and find from the preponderance of the testimony that on the 9th day of June, 1922, Marion E. Bates was in the employ of the defendant railway company at Sapnlpa, Oklahoma, and that he was in charge of a certain electrically controlled turntable at the roundhouse in the yards of the company at said place, and if you further find that, on said date, the said Marion E. Bates, in addition to his other duties, was required to grease and oil and care for machinery and appliances which were used in the. operation of said turntable, and you further find that, on the morning in question, the said Marion E. Bates was engaged in greasing or oiling the machinery of said turntable, and that, while so engaged, one Ben Cox, an employee of the defendant, went into the cab of said turntable and negligently and carelessly started the machinery thereof, without notice or warning to the said Marion E. Bates, or without exercising ordinary care to ascertain the whereabouts of the said Marion E. Bates, and if you further find that the machinery of siaid- turntable was thereby started in motion, and that, as a direct result of such negligence, if any, on the part of the said Ben Cox, the said Marion E. Bates was then and there crushed and mangled in the' machinery of said turntable,, and, as a direct result thereof, he died, and left surviving him a widow and a minor child, then your verdict should be for the plaintiff, unless you should find that she is precluded from recovery under the other instructions given you in-this case.”

Exceptions were saved to the giving* of this instruction, and the ruling of the court in giving it is assigned as error. We are of the opinion that this instruction is erroneous in entirely ignoring the defense offered by appellant, that Cox was authorized to move the turntable when he found the switch connected, and was therefore free from negligence in that respect, and that Bates’ death was caused by his own negligence in leaving the switch connected as a signal that .the turntable was in readiness to be used. The concluding language of the instruction does not relieve it of its harmful effect in ignoring appellant’s defense, for it tells the jury that, if Cox “negligently and carelessly started the machinery thereof, without notice or warning to the said Marion E. Bates, appellant would be liable,” whereas, under appellant’s theory of the case, as supported by the evidence adduced, if the switch was connected, Cox had the authority to use the turntable without waiting for Bates’.return, and he would not be guilty of negligence in so using it in Bates’ absence. There is no evidence that Cox was guilty of negligence in the manner in which he started the turntable, the contention being that he had no right to use it at all, in the absence of Bates. It is true that, even if Cox had authority to move the turntable in Bates’ absence, he would be chargeable with ordinary care to see that no one was in a position of danger, but the instruction under consideration does not relate to that question, and, on the contrary, it tells the jury, without qualification, that, if Cox started the machinery without notice or warning to Bates, he would be guilty of negligence. Appellant was entitled to have its theory of the case submitted to the jury, and this instruction entirely ignored it, and was prejudicial.

Error is assigned in the modification of an instruction requested by appellant, the modification consisting in adding' the words in italics and striking out the words in parentheses, of the following instruction:

“10. You are further instructed that, if you find from the evidence that it was the duty of the plaintiff, the defendant had instructed him that, when he left the cab from which the turntable was operated for the purpose of greasing the machinery to open the switch (which was inclosed in a metal cabinet) inside the cab in order to cut off the power, and if you further find that the said Bates disregarded these instructions and duty, and was injured on account thereof, then your verdict should be for the defendant.”

The instruction properly set forth the theory of appellant, and was correct in form and substance. Appellant was entitled to this instruction, and the words interpolated by the court could only have served to eon-fuse the issues in the minds of the jury. If the death of Bates was caused by his own violation of the rules or instructions prescribed, for his own benefit and protection, then there can be no recovery on account of his death. Snellen v. Kansas City Southern Ry. Co., 82 Ark. 334; St. L. I. M. & S. Ry. Co. v. Stewart, 124 Ark. 437; St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520. The effect of the court’s modification was to permit the jury to pass on the question whether .or not it was the duty of Bates to obey the instructions. The law is that .an employee must obey the rules and instructions prescribed for his protection, and it was improper to leave the question to be passed upon by the jury as to whether or not it was his duty to obey such instructions. St. L. I. M. & S. Ry. Co. v. Dupree, 84 Ark. 377; Darling v. Burnett, 96 Ark. 461.

Error is also assigned in the refusal of the court to give the following instruction requested by appellant:

“9. If you find from the evidence that the defendant had instructed the said Marion E. Bates that, in filling the grease-cups on the machinery which operated the turntable in question, he would place the table so that he could fill the cups from the hole constructed in the wall of the pit, and you further find that the said Bates disregarded tli ese instructions, and was injured on account thereof, then your verdict should be for the defendant. ’ ’

■The court gave several instructions requested by appellant on the subject of contributory negligence, but those instructions were only in general terms. None of them covered the subject directly like the one copied above, and appellant was entitled to have this instruction given to the jury, directly submitting the issue whether or not Bates disregarded his instructions with respect to connecting the switch. We think there was prejudicial error in refusing this instruction. The injury occurred in the State of Oldahoma, and the right of action must be controlled by the laws existing in that State at the time. Contributory negligence is an absolute defense there, as there is no statute modifying the common-law doctrine of contributory negligence. Frederick Cotton Oil Co. v. Traver, 36 Okla. 717.

It is unnecessary to discuss the assignments of error with reference to the instructions given by the court on the subject of assumed risk, for there is no question of assumption of risk in this case, except in the sense of an assumption of risk by reason of contributory negligence. There is no testimony tending to show that Bates was aware of the alleged negligent act of Cox in time to rescue himself from danger, therefore the question of assumed risk did not arise.

On account of the errors indicated above, the judgment is reversed, and the cause remanded for a new trial.


author: Wood, J.

text:
    Walker v. Culbertson.
    Opinion delivered March 3, 1924.
    Highways — improvement districts — necessity op election. — Under the terms of act No. 5 of the extraordinary session of 1923, approved October 10, 1923, road improvement districts which were created under the Alexander law (act 338 of Acts of 1915) or whose commissioners had previously entered into construction contracts, were not required to hold an election to determine whether the construction of such improvement should be proceeded with.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Geo. J. Crump, for appellants.

      Worthington & Williams and Ben E. MoFerrin, for appellee.
   Wood, J.

This is an action by the petition of appellants for a writ of mandamus against the appellees to require them to comply with act No. 5 of the extraordinary session of the General Assembly; approved October 10, 1923.

The cause was submitted on an agreed statement of facts which is, in substance, that Road Improvement District No. 6 of Newton County was properly formed under what is known as the Alexander road law (act 338 of the Acts of 1915), before the passage and approval of act No. 5 of the extraordinary session, approved October 10, 1923; that, prior to the passage of said act No. 5, the said Road Improvement District No. 6, through its commissioners, had entered into two construction contracts for the construction of the substantial portion of said improvement, and had entered into a contract for the sale of $43,000 worth of bonds of the district, and had also executed, its promissory note, which is now outstanding, for the preliminary expenses of said road district. It was agreed that each of these contracts are now outstanding and valid obligations against said road improvement district, unless abrogated by act No. 5 of the extraordinary session of the General Assembly, approved October 10, 1923.

The trial 'court entered a judgment dismissing the appellants’ petition, from which is this appeal.

The only question submitted for decision is whether or not appellees, as commissioners of Road Improvement District No. 6 of Newton County, Arkansas, are required by the provisions of act No. 5 of the extraordinary session of the General Assembly, approved October 10,1923, to call an election under the provisions' of §§ 25 and 26 of that act. Section 25 provides, in part, as follows:

“The commissioners or directors of any road improvement districts created by special acts of the Legislature enacted since the session of the General Assembly in the year 1915, except St. Francis River Road Improvement District of Poinsett County, Arkansas, and St. Ffancis River and Bridge Road Improvement District, Poinsett County, Arkansas, that have not, at the time of the passage of this act, let any construction contracts, actually done construction work, or issued, sold or delivered to the purchaser thereof any bonds of the district, shall not proceed with the construction of the improvements under their charge, and shall not issue any bonds to secure funds therefor, unless a majority in number and in value of the landowners in fee simple in such district, voting at the election provided for in this act, shall express by their ballots a desire that the construction of such improvements be proceeded with.

“This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will, or to those districts where actual construction work has been begun or contracts therefor have, been made, or bonds sold and delivered and are outstanding, before the passage of this act.”

Section 26 declares the policy of the State in regard to the road improvement districts already created, but in which no construction contracts had been-entered into, or bonds issued, and also contains certain provisions concerning these districts with reference to an election to be called and held in the manner and after the procedure set forth in § 25, which provisions are unnecessary to set forth, except the following language in § 26:

“It is made plain that this section and § 25 do not apply to districts that have done part of the work of improvement, and the work is unfinished, or have outstanding construction contracts or bonds, but such districts may complete their work of improvement without being affected by this section or § 25 of this act.”

The language of the provisions as above set forth in §§ 25 and 26, in unmistakable terms, declares that §§ 25 and 26 do not apply to districts that have done part of the work of improvement or have outstanding contracts or bonds. Such districts are not affected by provisions of §§ 25 and 26 of the act. Nor does the act apply to any except districts .created by special acts.

The agreed statement of facts shows that District No. 6 of Newton County was properly formed under what is known as the Alexander road law (act 338 of the Acts of 1915), and its commissioners had entered into construction contracts and had issued bonds for the construction of the substantial part of the improvement in the district. It follows that the provisions of §>$> 25 and 26 of act No. 5 of the extraordinary session of the General Assembly, approved. October 10, 1923, do not apply to Road District No. 6 of Newton County, Arkansas. Therefore the findings of the circuit court to that effect are correct, and its judgment dismissing the appellants’ complaint is affirmed.


author: Hart, J.,

text:
    Higgason v. Braswell.
    Opinion delivered March 3, 1924.
    1. Replevin — necessity of affidavit. — Though the affidavit required hy Crawford & Moses’ Dig., § 8640, is necessary to the obtaining of an order of delivery, it is not a prerequisite to the court’s jurisdiction to determine the rights of property without a change of possession during the action, so that defects in such affidavit did not call for a dismissal or invalidate the judgment.
    2. Replevin — sufficiency of affidavit. — An affidavit in replevin brought to recover two bales of cotton, which alleged that the . cotton was not taken as a tax or fine against the plaintiff but was merely stored for safe-keeping, and which alleged that plaintiff ought to recover the cotton or $200 for debt, inferentially shows that the property was not taken under a judgment or execution, as required by Crawford & Moses’ Dig., § 8640.
    3. Abatement and revival — defective affidavit in replevin.— Failure of an affidavit in replevin to state that plaintiff’s cause of action accrued within the period of limitation, as required by Crawford & Moses’ Dig., § 8640, is not ground for quashing the writ.
    4. Replevin — amendment of affidavit. — On trial de novo in the circuit court of an action of replevin originating in the court of a justice of the peace, it was error to refuse to permit plaintiff to amend his affidavit to comply with the statutory requirements.
    Appeal from Bradley Circuit Court; Turner Butter, Judge;
    reversed.
    STATEMENT OE EAOTS.
    This is an action in replevin brought before O. F. Neal, a justice of the peace, by J. W.. Higgason against Frank Braswell, for the recovery of two bales of cotton.
    The complaint was filed on the 14th day of October, 1921, and an order of delivery was duly issued on the same day, returnable on the 29th day of October, 1921. The return on the order of delivery shows that it was served on the defendant, and the two bales of cotton described in the order were taken possession of by the sheriff and delivered to the plaintiff.
    On the 29th day of October, 1921, the. defendant filed a motion for a change of venue, which was granted, and the venue changed to J. D. McLeod, a justice of the peace of another township in Bradley County, Arkansas.
    On the 2d day of November, 19'21, the plaintiff and the defendant announced ready for trial, and the case was heard before a jury. The jury returned a verdict for the plaintiff for the two bales of cotton in controversy, and judgment was rendered upon the verdict by J. D. McLeod, J. P.
    The defendant in due time filed his affidavit for appeal to the circuit court, which was granted.
    In the .circuit court the defendant filed a motion to quash the judgment of the justice of the peace, on the ground that there was no affidavit filed before the justice of the peace, as required by the statute in replevin cases.
    The circuit court then permitted the affidavit for the order of delivery, which was filed before O. P. Neal, J. P., to be supplied in the circuit court and filed as a part of the papers in the case.
    The body of the affidavit, omitting the caption, is as follows: “The plaintiff, J. W. Higgason, states that the claim in this action against the defendant, Prank Braswell, is for 2 B/C cotton of the weight of 500 lb. or 1,000 lb. total; the same was bought and paid for by the plaintiff; that it is a just claim; that he ought, as he believes, to recover thereon the 2 B/C cotton of the defendant of $200 debt dollars and ($50); that he is the owner of 2 B/C cotton, and is entitled to the immediate possession of the cotton; that he is the owner, and is wrongfully detained by the defendant Braswell; that, according to the best knowledge, information and belief of plaintiff, said defendant detains said cotton wrongfully of him the owner thereof; said cotton was not taken for tax or fine against him, but was merely stored for safekeeping, subject to his .command at any time.
    “Wherefore, hé...............pray...............an order of delivery and that he háve judgment for the sum aforesaid, with interest, also for costs of suit, and for other proper relief.”
    The affidavit, was signed by J. W. Higgason, and sworn to before O. F. Neal, J. P.
    The docket of O. F. Neal also showed that the case was transferred to J. W. McLeod, J. P., but, through some mistake, the affidavit was not transmitted to that court with the other papers in the case. The defendant then filed a motion to quash the judgment on the following grounds:
    “1. The affidavit failed to recite that the property was not taken under a judgment or execution.

      “2: That the cause of action accrued within one year before the filing of this suit.
    “3. That the affidavit failed to state the value of the property taken in the action. ’ ’
    The plaintiff filed a response to the motion, in which he stated that the affidavit was in substantial compliance with the statute, and asked to be permitted to amend the same by inserting the allegations claimed to have been left out. The circuit court overruled the motion of the plaintiff to amend the affidavit, and sustained the motion of the defendant to quash the judgment rendered in the justice of the peace court.
    Judgment was rendered accordingly in the circuit ■court, an<|, the plaintiff has duly appealed to this court.

      Bradhmn <& Purloins, for appellant.
    The affidavit was in substantial compliance with the statute, and was sufficient. Section 8640, C. & M. Digest ; 44 Ark. 308; 85 Ark. 73; 111 Ark. 29; 33 Ark. 475; 34 Cyc. 1428; 114 Mich. 260; 37 Mich. 354; 71 N. W. 305; 22 Kan. 122; 119 Mich. 196; 32 Minn. 492. An irregularity in an affidavit upon which a writ of replevin is obtained does not invalidate the writ. 56 A. S. R. 736; 76 A. S. R. 892; 94 Ark. 384; 140 A. S. R. 121. The court erred in refusing to allow plaintiff to amend Ms affidavit. 68 Ark.' 180; 37 Ark. 549; 44 Ark. 309; 46 Ark. 259; 44 Ark. 375.

      Clary S Ball, for appellee.
    The affidavit was fatally defective in failing to allege the statutory requirements. Section 8640, C. & M. Digest; 136 Ark. 512. The failure to state the value of the property was fatal, and the justice of the peace had no jurisdiction. Ill Ark. 29; 94 Ark. 384; 10 Ark. 313; 6 Ark. 41; 43 Ark. 107; 61 Ark. 33.
   Hart, J.,

(after stating the facts). The motion of the defendant to quash the judgment of the justice of the peace is based upon § 8640 of Crawford & Moses’ Digest, which states the requisites of an affidavit in replevin. The office of the affidavit and bond in a replevin suit is to obtain an order of delivery. This court has held that, before an order of delivery can issue for the immediate possession of the property in advance of the trial of the rights of property, the affidavit contemplated by § 8640 of Crawford & Moses’ Digest must be filed.'

The court has further held that the failure to file such affidavit before the issuance of the order of delivery for the immediate possession of the property is ground for quashing the writ, but that it is not a prerequisite to the jurisdiction of the court to settle the rights of property without a change of possession. Schattler v. Heisman, 85 Ark. 73. In that case the court further held that the circuit court could proceed to try the rights to the possession of the property involved without the possession being changed.

Under this decision, the defendant might have moved to quash the order of delivery because a defective affidavit had been filed. The requirements of the statute should be folMwed, in order to obtain a valid order of delivery; but they are not in the nature of jurisdictional facts calling for a dismissal of the complaint, and the circuit court erred in so holding.

It is claimed that the affidavit in the case at bar is defective because it fails to state the value of the property taken in the action, and because it failed to recite that the property was not taken under a judgment or execution. In addition to the fact that this Was not a ground to quash the judgment, it may be said that the affidavit shows, inferentially at least, the value of the property, and that the property was not taken under a judgment or execution. The affidavit alleges that the .cotton was not taken as a tax or fine against the plaintiff, but was merely stored for safekeeping, subject to his command at any time. This is equivalent to saying that the cotton was not taken under any order or judgment of a court against him, or seized under execution. The allegation that it was stored for safekeeping is equivalent to an allegation that the ownership of the property was in the plaintiff, and that he was entitled to the immediate possession of it.

The affidavit contains another allegation that the plaintiff believes he ought to recover the two bales of cotton from the defendant, or $200 for debt. This, taken in connection with the allegation that the plaintiff had stored the cotton for safekeeping with the defendant, is equivalent to an allegation that its value was $200. He asked to recover the cotton, or $200 debt. This, coupled with the allegation that the cotton belonged to him, shows, inferentially at least, that the plaintiff valued the cotton at $200.

It is also claimed that the affidavit was fatally defective because it did not state that the plaintiff’s cause of action accrued within one year. The effect of replevin being to change possession of the property, where an immediate order of delivery is obtained, the Legislature has required the plaintiff to file an affidavit that his cause of action had accrued within a year, in order to rebut the apparent right of the defendant arising from the length of possession. Payne v. Burton, 10 Ark. 53.

But, as we have already seen, the failure of the affidavit to state this fact is not ground to abate the suit, but is only ground to quash the order of delivery. In this connection it may be stated that the plaintiff ashed leave to amend the affidavit in order to supply the alleged defects in it, and his request should have been allowed by the circuit court. The case was tried de novo in that court. The amendment ashed did not change the nature of the claim of the plaintiff, nor was it inconsistent with his original complaint in the justice court. Hence the circuit eourt should have permitted the amendment requested by the plaintiff, and proceeded to try the case de novo. Hanf v. Ford, 37 Arh. 544, and Strode v. Holland, 150 Arh. 122.

It follows from what we have said that the court erred in quashing the judgment of the justice of the peace, and for that error the judgment must be reversed, and the cause will be remanded for further proceedings according to law and in accordance with this opinion.'

      Section 8640 of Crawford & Moses’ Digest contains an error. The period of limitation is three years. See Acts 1887, p. 87, and § 6950 of Crawford & Moses’ Digest. (Reporter).


author: Hart, J.

text:
    Sullivan v. State.
    Opinion delivered March 3, 1924.
    1. Holidays — holding court on thanksgiving day. — It was not error to compel one accused of murder to go to trial on Thanksgiving Day, as the .statute relative to that and certain other holidays has no reference to any other subject than the payment of bills of exchange, drafts or promissory notes.
    2. Homicide — variance between allegation and proof. — Under a charge of murder committed by shooting with a pistol, evidence of shooting with a gun is not materially variant, -since the two weapons are substantially of the same character, capable of inflicting an injury of practically the same character in substantially the same manner. •
    3. Homicide — sufficiency of evidence. — Evidence held sufficient to sustain a 'conviction of murder in the second degree.
    4. Homicide — presumption of malice. — The law implies- malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification or excuse appear at the time of the killing.

      5. Homicide — harmless instruction. — An instruction as to murder in the first degree will not be deemed prejudicial, where the jury found accused guilty of murder in the second degree.
    Appeal from Miller Circuit Court; James H. MoGollum, Judge;
    affirmed.

      Pratt P. Bacon and Louis J osephs, for appellant.

      J. 8. Utley, Attorney General, and Jolm L. Garter, Assistant, for appellee.
   Hart, J.

George Sullivan was indicted for murder ■ in the first degree, charged to have been committed by killing Pete McKellar. He was convicted of murder in the second degree, and his punishment fixed by the jury at imprisonment in the penitentiary for five years. Prom the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

Counsel for the defendant first contend that the judgment should be reversed because the court compelled him to go to trial on Thanksgiving Day,

The Legislature of 1838 provided that, where bills of exchange, drafts or promissory notes shall become payable on Sunday, Fourth of July, or Christmas, the same shall be payable on the day next preceding such Sunday, Christmas, or Fourth of July. This act of the Legislature became § 481 of Sandels & Hill’s Digest.

The Legislature of 1895 amended § 481 of Sandels & Hill’s Digest by adding Thanksgiving Day and some other days to the list of days mentioned in the section. Since that time other holidays have been designated by statute, but they have in no sense amended the act of April 19, 1895. The reading of the act of 1895 shows clearly that it has no reference to any other subject than the payment of bills of exchange, drafts or promissory notes becoming due on the days designated in the statute. Acts of 1895, p. 192. Hence the statute does not even make Thanksgiving Day a legal holiday for any purpose than that named in the act. Therefore the court could try cases on that day as well as on any other juridicál day.

The next assignment of error is that there was a variance between the charge in the indictment and the proof in the case. The indictment charges that G-eorge Sullivan killed Pete McKellar by shooting him with a pistol. The alleged variance between the charge and the proof is that the evidence does not show whether a pistol or gun was used by the defendant in lulling McKellar. This did not make any difference. Where the instrument described in the indictment and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. Proof of shooting- with a pistol will sustain an averment of shooting with a gun, and vice versa. Underhill on Criminal Evidence, 3 ed. § 493; 30 C. J. p. 136; 13 R. C. L. § 207, p. 902; Michie on Homicide, vol. 1, § 142, p. 561; Elliott v. State, (Okla.), 140 Am. St. Repts. 683; State v. Smith (Me.), 54 Am. Dec. 578; State v. Dame (N. H.), 35 Am. Dec. 495; Blankenship v. Commonwealth (Ky. App.), 66 S. W. 994; Brown v. State (Tex. Crim. App.), 65 S. W. 529; Douglass v. State (Tex. Cr. App.), 8 Am. St. Rep. 459; Turner v. State (Ala.), 12 So. 54; and Drummer v. State (Fla.), 33 So. 1008. It follows that the assignment of error is not well taken.

The evidence is sufficient to support the verdict. According to the testimony of the witnesses for the State, Pete McKellar was found dead near Era, in Miller County, Arkansas, on the 4th day of September, 1922. There was one bullet-hole through his nose and two bullet-holes in his back. The wounds thus inflicted caused his death. His body was found early in the morning, lying on the ground. On the evening before the finding of his body, Pete McKellar was seen leaving a store at Era with the defendant, George Sullivan. McKellar remarked to a neighbor who passed them that they were going to a spring near by. About ten minutes afterwards several shots were heard in the direction where the defendant and McKellar went, and McKellar ’s body was found at the same place the next morning. Shortly after the shots were fired the defendant was seen leaving the place by himself. The shooting occurred between sundown and dark. One of the bullets fired into McKellar’s body was extracted from it after his death. A short time before the killing the defendant was heard to say that he was afraid of McKellar and others; that, in some places where he had lived, if a man got to know too much, he would come up missing. The defendant had some whiskey with him at the time, and referred to the fact that, McKellar knew too much about whiskey being made in the neighborhood. McKellar and the defendant lived close together, in the same neighborhood.

The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification or excuse appear at the time of the killing. Young v. State, 99 Ark. 407, and Fields v. State, 154 Ark. 188. The defendant was the last person seen with the deceased before his death. They were going in the direction of a spring, and four or five gun or pistol shots were heard in about ten minutes thereafter. In about ten minutes after the shots were fired the defendant was seen going away from that direction, alone. The body of the deceased was found there the next morning, with three bullet wounds in it. Two of them were in his back. Proof of death under such circumstances fully justified a conviction of the defendant of murder in the second degree.

It is also insisted by counsel for the defendant that the court erred in instructing the jury. One of the instructions complained of was upon murder in the first degree. The jury found the defendant guilty of murder in the second degree, and thus acquitted him of murder in the first degree. Hence this instruction could have been in no manner prejudicial to the defendant at the trial. The other instruction complained of was upon murder in the second'degree, and the only objection made to ‘it is that there was no evidence upon which to base it. It is claimed that the jury could not find that the defendant shot and killed the deceased, as alleged in the indictment, because there is no direct testimony tending to show what kind of gun was used, and the indictment charged that the defendant used a pistol in killing the deceased. As we have already seen, the kind of firearm used was immaterial. Any person of ordinary intelligence would understand that some sort of firearm was used in the shooting, and it could make no difference, under the authorities cited above, whether it was a gun or a pistol.

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


text:
    O’Donnell v. Magnolia Petroleum Company.
    Opinion delivered March 3, 1924.
    1. Attachment — priority op lien. — Where, after the institution of an attachment suit against a nonresident defendant, and the levy by the sheriff on certain property of defendant under writ of attachment, a second suit of attachment was instituted against the same defendant and the same property; attached, the plaintiff in the first suit acquired a paramount lien on the property, which was not lost by his failure to give; the bond required by § 6261 of Crawford & Moses’ Digest, before rendition of the judgment.
    2. Attachment — constructive service — personal judgment. — The erroneous entry of a personal judgment against a nonresident defendant, on whom constructive service only was had, did not defeat the plaintiff’s paramount lien by .reason of attachment of such defendant’s property.
    3. Attachment — defective affidavit. — The paramount lien by reason of a prior- attachment of the property of a nonresident defendant is not defeated by , defects in the affidavit for attachment where such affidavit is substantially in the language of the statute and sufficient to form a basis for the issuance of the writ.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OP PACTS.
    On the 28th day of January, 1922, F. C. O’Donnell brought suit by attachment against Chas. H. Sevick in the White Circuit 'Court. The complaint alleges that the defendant is indebted to the plaintiff in the sum of $1,334.06, and that the defendant is a nonresident of the State of Arkansas. The prayer of the complaint is for judgment against the defendant for said sum, and the issuance of an order of general attachment.
    An order of attachment was duly issued and levied on certain property of the defendant on the 31st day of "January, 1922.
    On the 22d day of April, 1922, the plaintiff filed a petition asking for a sale of the attached property, because part of it was live stock and expensive to feed, and the other attached property was depreciating in value. The circuit judge made an order of sale, as requested in the petition. The attached property was duly advertised for sale by the sheriff, and sold by him to the highest bidder. The sheriff made a report of his proceedings to the circuit court, and the sale of the attached property was duly confirmed on July 25, 1922.
    Subsequently the Magnolia Petroleum Company was allowed to file an intervention in the suit.
    The Magnolia Petroleum Company alleges that the defendant, Chas. H. Sevick, was indebted to it in the sum of $794.68, which was due and unpaid on the 24th day of January, 1922; that on said date it filed a suit in attachment against said Chas. H. Sevick, on the ground that he was a nonresident of the State, and asked for judgment for the amount of said indebtedness; that on said 24th day of January, 1920, an order of general attachment in said suit was issued and delivered to the sheriff of White County; that on the 25th day of January,. 1922, said writ of attachment was levied by the sheriff on certain personal property of the defendant, and that the attachment in the present suit was issued on a later date and levied on the same property.
    The prayer of the intervener is that the sheriff pay over to it the amount of the proceeds from the sale of the attached property, which is less than the amount of the judgment and costs in the attachment suit of theMagnolia Petroleum Company against Chas. H. Sevick.
    The judgment in the case at bar recites that it was submitted to the court upon the pleadings and proceedings in the two attachment suits above referred to, and these pleadings and proceedings are specifically designated in the judgment.
    The circuit court found that the intervener, Magnolia Petroleum 'Company, had a prior lien on the attached property for the amount of its judgment against Chas. H. Sevick. The judgment further provides that, if Chas. H. Sevick shall not have appeared and made defense as' provided by the statute within said time, the sheriff of White County shall then pay to the intervener, Magnolia Petroleum Company, $$00, being the proceeds of the sale of said attached property.
    F. C. O’Donnell, the plaintiff in the present case, has duly prosecuted an appeal to this court.

      Bnmdidge cB Neeily, for appellant.
    1. The defendant was a nonresident. No bond was filed before judgment as required by C. & M. Digest, § 6261, subdiv. 2. The statute must be strictly followed. 63 Ark. 156; 40 Ark. 130.
    2. The affidavit is not sufficiently definite. The law requires that the affidavit shall state what grounds- the plaintiff relies upon to sustain it.
    3. No valid judgment was entered in the case of the Magnolia Petroleum Company, upon which this intervention was based. There being no valid judgment in the face-of the record, and if no errors appear here, the junior attacher has the right to dispute the legality of the first attachment. • C. & M. Digest, § 544; 57 Ark. 546.

      Avery M. Blount and John E. Miller, for appellee.
    There being no motion for new trial in this case, and no bill of exceptions, no review is proper except upon the face of the record, and, if no errors appear there, the judgment must be affirmed. 140 Ark. 218, 230; 129 Ark. 217-18; 139 Ark. 408-16; 154 Ark. 151-55; 150 Ark. 122-26.
   Hart, J.,

(after stating the facts). A reversal of the judgment is first sought on the ground that Chas. H. Sevick is a nonresident of the State, and that the Magnolia Petroleum Company did not file the bond provided by § 6261 of Crawford & Moses’ Digest before it obtained judgment against Sevick in its attachment suit.

The ground of the attachment of the Magnolia Petroleum Company against Sevick was that he was a nonresident of the State, and constructive service was had upon him.

Section 6261 provides that, before judgment is rendered against a defendant constructively summoned, who has not appeared, it shall be necessary that a bond be executed to such defendant by the plaintiff, to the effect that, if the defendant, within the time prescribed by law, shall appear, make defense and set aside the judgment, the plaintiff shall restore to him the property taken under the attachment and pay to the defendant such sum of money as may be awarded him. The bond required by this section of the statute was not given by the Magnolia Petroleum Company before the judgment in its favor against Sevick.in the attachment case, but it was given after the judgment had been obtained.

It is true that the statute should have been complied with and the bond given before judgment, but the Magnolia Petroleum Company did not lose its lien under the attachment because it failed to give the bond at the time required by the statute. The writ of attachment was issued and delivered to the sheriff of White County on the 24th day of January, 1922, in the case of Magnolia Petroleum Company against Chas. H. Sevick. The writ of attachment in the case of O’Donnell against Sevick was not issued until the 28th day of January, 1922. Therefore the writ of attachment of the Magnolia Petroleum Company was a paramount lien on the attached property, and it was not lost by the failure of the Magnolia Petroleum Company to give the bond required by § 6269 before the rendition of the judgment in its attachment case.

Again, it is claimed that the judgment in the present case should be reversed because the court erred in rendering a personal judgment in the attachment case in favor of the Magnolia Petroleum Company against Chas. H. Seviek. Constructive service was had in that case against Seviek, and it is claimed that it was error to render a personal judgment against Seviek in favor of the Magnolia Petroleum Company.

An error in this respect would not cause the Magnolia Petroleum Company to lose its lien secured by the issuance and levy of the writ of attachment in that case. The court sustained the writ of attachment, and the lien, obtained by the issuance and the levy of the writ still continues.

It is next insisted that the affidavit for attachment made by the Magnolia Petroleum Company against Seviek was defective in some respects. It need only be said, in this connection, that, even if the affidavit was irregular, it was substantially in the language of the statute and was sufficient to form the basis of the issiiance of the writ of attachment and its levy upon the property of the defendant in the attachment suit. Hence the lien was not lost on account of any mere defect in the affidavit for the attachment.

It results, from the views that we have expressed, that, even if the pleadings and other proceedings in the attachment suit of the Magnolia Petroleum Company against Chas. H. Seviek are properly in the transcript in this case, the judgment of the circuit court was correct.

It is admitted by counsel for appellee that the proceeding’s in the attachment case of the Magnolia Petroleum 'Company against Chas. H. Seviek are in the transcript, but it is insisted that they have not been properly brought in the record. Without deciding that question, we have treated them as being properly in the record, and are of the opinion that the judgment should be affirmed on the merits of the case.

It is so ordered.


author: Smith, J.

text:
    Buchanan v. Street Improvement District No. 4.
    Opinion delivered March 3, 1924.
    Municipal corporations — improvement district — clerical error in petition. — Where the first petition for a street improvement district correctly described the streets to be included, an error in the second petition describing' one street as west instead of east of certain lots did not render the ordinance creating the district void, as the error was obviously clerical, and reference to the lots was unnecessary to a definite description.
    Appeal from Greene Chancery Court; M. P. Huddleston, special chancellor;
    affirmed.

      Jeff Bratton, for appellant.

      R. P. Taylor, for appellee.
   Smith, J.

This appeal involves the validity of a street improvement district in the city of Paragould. In the initial petition the streets to be improved were properly described. This petition designated West Court as one of the streets to be improved from a point in that street west to Fourteenth Street, and also designated King’s Highway as a street to be improved from a point in that street west to Fourteenth Street. In other words, both West Court and King’s Highway were to be improved to their intersection with Fourteenth Street, the latter being a street connecting the two former. Fourteenth Street was to be improved, and it was designated as follows: “Fourteenth Street, or the street lying immediately east of lots 1, 2, 3, 4, 5, 6 of SE14 of SW/^ of section 36, township 17 north, range 5 east, in Greene County, Arkansas, from West Court street to and including the intersection of King’s Highway, or Cemetery Road.”

The second petition contained the names of the requisite majority of property owners, but it described Fourteenth Street as lying immediately west of lots 1, 2, 3, 4, 5 and 6. The description employed of the streets to be improved in both the first and second petitions was identical, except that, in the first petition, Fourteenth Street was described as lying east of lots 1, 2, 3, 4, 5 and 6, whereas in the second petition Fourteenth Street was described as lying west of said lots.

It is said that the discrepancy in description renders void the ordinance of the city council creating the improvement district. The court below, however, held that the description was sufficiently definite and certain, and upheld the ordinance. The correctness of this holding is the question for decision.

The city limits coincide with the western boundary line of the lots described', and all land lying west of the boundary line of the lots lies without the city limits. There is therefore no street in Paragould west of the lots.

The testimony shows, however, that Sam McHaney, the owner of the land adjoining the lots described, laid off a portion of said land and called' the part so laid off McHaney’s Addition to Paragould, but no plat of the so-called addition was ever filed, and there has been no dedication of the streets and alleys in that addition. After McHaney had laid off his addition he removed the fence along the eastern boundary line of his farm, and there was a passway for wagons running for a short distance near the west boundary line of said lots, but proceeding diagonally therefrom in a northwesterly direction to a point of junction with, the county road running west from the city.

We think the substitution of the word west for the word east is so obviously a clerical error that it may be disregarded. No one would assume that the city, by .an ordinance of its council, was undertaking to authorize the improvement of a street lying without the limits of the city. There is only one street named or numbered fourteenth in the city, and it runs east, and not west, of the six lots described, and it connects West Court and King’s Highway, and makes the improvement of those streets a continuous one. The improvement of West Court and of Kang’s Highway stops at the intersection of those streets with Fourteenth Street, and if Fourteenth Street, which lies east, and not west, of the lots, is not improved, the connecting link between West Court and King’s Highway will be broken, and the improvement will not be a continuous one.

Lots 1 to 6 extend' from ¡West Court to King’s Highway, and they have Fourteenth Street as their eastern boundary, and the reference to those lots was a mere attempt to make more definite a description which was otherwise definite and certain, and the description of that street as lying west, instead of east, of the lots does not, of course, change its position or prevent it from being the necessary connecting link to make the proposed improvement continuous and contiguous.

We think no one could be misled by the obvious error, and that Fourteenth Street between West Court and King’s Highway was sufficiently and properly described, and is a part of the proposed improvement. Jarrett v. Baird, 161 Ark. 31; Castle v. Sanders, 160 Ark. 391.

We conclude that the description of the streets to be improved was sufficiently definite and certain, and that the mere clerical error above referred to did not render it indefinite or uncertain, and the decree of the court below so holding is affirmed.


text:
    Patterson v. Cooper.
    Opinion delivered March 3, 1924.
    1. Parent and child — sufficiency of evidence. — In a contest between divorced parents over the custody of a child, the preponderance of the evidence held to sustain a decree for the mother.
    2. Parent and child — custody of child — former decree of divorce. —In a contest between divorced parents for the custody of a child, the decree of divorce awarding the child to its mother will be assumed to be correct where it was never appealed from or modified.
    3. Parent and child — child’s preference as to custody. — In a contest between divorced parents over the custody of a fourteen-year old daughter, the child’s preference, while not controlling, cannot be ignored, since, under Crawford & Moses’ Dig., § 4897, she could select her own guardian if she had no parents.

      Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      E. A. Williams, for appellant.

      ■Robert Bailey, for appellee.
    The child’s welfare is the paramount issue. In habeas corpus proceedings, in determining the right to the custody of a child the court will consult the inclination of the child, if it is of sufficiently mature age to judge for itself, and consider the child’s feeling, affections and probable contentment in the future. 89 Ark. 501; 117 S. W. 546; 148 Ark. 164; 229 S. W. 15. Where the evidence is conflicting the findings of the chancellor will not be disturbed. 81 Ark. 609; 99 S. W. 106; 86 Ark. 622; 111 S. W. 269; 129 Ark. 197; 195 S. W. 22; 129 Ark. 301; 195 S. W. 674; 129 Ark. 583; 195 S. W. 35.8; 132 Ark. 180; 200 S. W. 805. Where the evidence is conflicting, the Supreme Court will not reverse unless there is an erroneous application of the law. 134 Ark. 211; 203 S. W. 269; 139 Ark. 542; 214 S. W. 68; 144 Ark. 642; 217 S. W. 473; 142 Ark. 609; 219 S. W. 742; 145 Ark. 248; 224 S. W. 486; 148 Ark. 295; 230 S. W. 260.
   Smith, J.

This case presents a contest between the father and mother of Fay Patterson, a fourteen-year-old girl, over her custody. The court awarded the custody of the child to the mother, and the father has' appealed. Testimony was offered 'tending to support the right of each parent to the child’s custody, and we can only decide whether the decree of the court_ awarding the custody to the mother was, according to the preponderance of the testimony, for the child’s best interest.

Appellant and appellee were married in 1904, and lived together as husband and wife until 1914, during which time two children were born to their union, both girls, one named Thelma, who is now sixteen, and Fay, the younger, who is now fourteen years old.

In November, 1914, the wife brought suit for divorce, and a decree was granted her, and she was also awarded custody of both children.

In November, 1917, tbe father married a second wife, and he and this wife are both anxious to have the child live with them. The testimony shows that they are suitable persons to have the custody and control of the child.

In December, 1917, the mother married a man named Cooper, with whom she is now living, and they are both anxious to have the custody of the child. Mr. Cooper testified that he was a brickmason, and that he earned $9 a day when he worked, and that his average wage was $40 per week, and that his wife was desirous of having the children, and that he would care for them properly if their custody was awarded to her.

■ After Mrs. Cooper’s second marriage, she and her husband lived in several different cities, as Mr. Cooper found it necessary to do to secure employment, but they are now permanently located in New Orleans, and are conveniently located near churches and a good school, to which they propose to send the girl.

In 1918, while the war was going on, Mr. Cooper, who was then living- in Nashville, Tennessee, and was within draft age, anticipated that he would be drafted, but he was later sent to Charleston, South Carolina, where he was employed on a government job, and Mrs. Cooper bought tickets for the children to Morrilton, Arkansas, where their father lived when she last heard from him. She provided the children with the necessities for the journey and gave them fifty cents in money, which they spent before arriving in Little Rock. The testimony on the part of the father is to the effect that the children were only provided with tickets to Little Rock, and that, when they arrived there, they had no tickets covering the remainder of the journey, and had no money to buy tickets with, and were only enabled to proceed on their journey through the charity of sympathetic persons to whom their plight was made known. The father was not advised that the children were on their way, and he was not looking for them, and, when the children arrived at Morrilton, they learned that their father' had removed to Atkins, Arkansas, but the children were well known in Morrilton, and readily secured the necessary aid to finish their journey. Upon arriving at their father’s home they found him sick in bed. This was, of course, a thoughtless thing for the mother to do, but she testified that the children had tickets when they were put on the train to Morrilton, where she supposed the children would find their father, and that the children must have lost the portion of their tickets which would have carried them from Little Rock to Morrilton, and that it was her intention to have the children remain with their father until the status of her husband was fixed, and that, as soon as he became permanently located and it was known that he would not have to go to war, she commenced writing letters to the children. She testified that she wrote at least fifty letters to the children, none of which were ever returned or answered, and the testimony tends to show that these letters were intercepted by Mr. Patterson, and were never delivered to the children. Finally she sent a registered letter, which contained enough money to pay the expense of the children’s return to her, but this letter was returned, with a notation made by the postmaster that its delivery had been forbidden by Mr. Patterson. Thereupon Mrs. Patterson brought this suit.

The child Fay testified, and it appears that the older one expressed her preference to live with her father, while the younger one expressed her desire to live with her mother, and the court awarded the custody of the younger child to the mother, and this appeal is from that decree.

There was testimony reflecting on Mrs. Cooper’s moral character, but this evidence was sharply contradicted, and was evidently not credited by the court. It does appear, however, that Mrs. Cooper bore another child before her marriage to Mr. Cooper, but, as we understand this testimony, Cooper was its father, and married his wife with full knowledge of all the facts relating to her history, and the testimony of a number of their neighbors in New Orleans was offered in evidence, showing that Mr. and Mrs. Cooper had led exemplary lives during their residence in that city. These witnesses testified that they had known Mr. Cooper and his wife for varying periods of time, some for as much as fourteen months, and that they were living in a good neighborhood and were respected by their neighbors.

The testimony shows that, just before Mr. Patterson’s second marriage, he urged appellee to again marry him-, but she declined' to do so, and on December 3, 1917, she married Mr. Cooper.

We must assume, of course, that the court properly awarded the custody of the children to appellee in the original decree, as that decree was never appealed from or modified. We think also there was no intention on the part of Mrs. Cooper to abandon the children or surrender their custody to Mr. Patterson permanently. If the children had been younger, it would no doubt have been better for the same parent to have been awarded custody of both children, so that each would have had the advantages of the other’s companionship, but the older child is now nearly a young lady, and they might soon have been separated had the custody of both been awarded to the same parent.

At any rate, the wishes of the children were consulted, and, while their preference is not of controlling importance, it is a circumstance which camiot be ignored, and, as the younger child is now fourteen years old, she has reached an age which would entitle her to select her own guardian, if she had neither father nor mother, subject to the approval of the probate court. Section 4987, C. & M. Digest.

Gfood reasons are shown why the father should have the children, but no good reason is shown why the mother might not have at least one of them, and, as we cannot say that the action of the court in awarding the custody of the younger child to the mother is, according to the preponderance of the evidence, against the child’s best interest, the decree of the court below will be affirmed.


author: Humphreys, J.

text:
    Western Grain Company v. Barron G. Collier, Inc.
    Opinion delivered March 3, 1924.
    Damages — duty to minimize. — Where a contract for the lease of advertising space in street-cars provided that nonuse thereof from the lessee’s act or omission should be the lessee’s loss, and that the lessee could not assign or sublet any privileges under the contract, the lessor was not bound to mitigate the damages from the lessee’s breach of the contract by renting the space to another offering to take it at the same rate, where the rate had been raised since the contract was executed, and there was other vacant space to sell.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizsolam, Judge;
    affirmed.

      Warner, Hardin é Warner, for 'appellant.
    1.' It is true that appellant breached the contract, but the appellee, although it could have protected itself against any damage accruing therefrom, by consenting to the transfer of the contract to the First National Bank, refused to do so. Under these circumstances it was reversible error to direct the verdict for the plaintiff. 102 Ark. 246; 96 Ark. 78; 137 Ark. 397; 134 Ark. 430; 111 Ark. 598; 79 Ark. 484; 78 Ark. 366; 173 S. W. (Ark.) 833. For rule with reference to directing a verdict, see 114 Ark. 397. See also 82 Ark. 86; 88 Ark. 550; 144 Ark. 278; 89 Ark. 233. If there is any evidence tending to establish an issue in favor of a party, it is error to direct a verdict against him. 148 Ark. 74; 120 Ark. 208; 105 Ark. 136; 98 Ark. 334.
    2. Unlike the Eindy case (Minn.) 178 N. W. 584, relied on by appellee, there was in this case a definite, tangible offer to take over the defendant’s contract. Aside from that distinction, however, the decision in that case is in direct conflict with the decisions of this court referred to above, and with the weight of authorities. 11 N. W. 343; 70 S. W. 169.

      •John H. Vaughan, and Geo. W. Dodd, for appellee.
    1. It is clear from the language of the contract that the parties stipulated in regard to the amount recoverable for appellant’s breach of the contract. It provided not only that appellant should pay $13.50 per month, payable at the end of each month, during the term of the contract, but also that “nonuse of space, from advertiser’s act or omission, is advertiser’s loss. The advertiser cannot assign or sublet any privileges under this contract.” Parties may agree in regard to the loss or damages recoverable upon the breach of the contract, and such agreement is enforceable the same as any other stipulation. 8 R. C. L., §§ 110; 111 17 C. J. § 231; Id. 935, § 234; 54 Ark. 344; 17 C. J. 947, § 240. The rule contended for by appellant is not applicable in a case of this kind; it is particularly applicable to cases involving personal services. 8 R. C. L. 445, § 15; 9 Ark. 394.
    2. The Kindy case, 178 N. W. 584, and that of Barron G. Collier, Inc., v. Domino Macaroni Mfg. Co., 248 S. W. 918, are convincing as to the correctness of the judgment in this case.
   Humphreys, J.

Appellee brought this suit against appellant in the circuit court of Sebastian County, Port Smith District, to recover monthly rentals in the total sum of $10i8 alleged to be due for advertising space in the street-cars operated in Port Smith. The suit was based upon a contract which, in substance, provided that appellant should pay appellee $13.50 per month for sixty months for advertising space of 11x21 inches in size in said street-cars, with the understanding- that appellant could not assign or sublet the space, and that its failure to use same should be its loss.

Several defenses were interposed to this suit by appellant. It is only necessary to set out one of them in order to determine the issue presented by this appeal, viz., that it was the duty of appellee to mitigate its damages by renting the space to another when appellant breached the contract.

The cause was submitted upon the pleadings and testimony, at the conclusion of which the court instructed a verdict in favor of appellee, over the objection and exception of appellant.

The facts are undisputed, and are, in substance, as follows: Appellee purchased the whole of the advertising space in the street-cars at Fort Smith for a certain period of time, and divided it into a number of spaces which it rented to parties desiring to advertise their business by inserting advertising cards therein. Appellant rented one of these spaces, and entered into a written contract with appellee for same, the terms and conditions of which have heretofore been sufficiently set out. The contract was dated July 19,1919. It was carried out by both parties until some time in the summer of 1921. Appellant then became dissatisfied, and tried to get appellee to release it from the contract and allow the First National Bank of Fort Smith to take the space at the rate it was paying, which the bank offered to do. Appellee refused to release it, for two reasons, one being that the rates had been raised since the execution of the contract, and the other that it had vacant space of its own to sell. On the third day of September, 1921, appellant refused to use the space or to pay for same. This suit was afterwards instituted for the unpaid rents due up to March 13, 1922.

Appellant contends that the court erred in instructing a verdict against it, because the undisputed facts showed that it could have recouped its damages in full by renting the space to the First Nátional Bank. To uphold appellant’s'contention would, in effect, eliminate provisions of the contract purposely drawn to cover appellee’s damages in case of a breach thereof by appellant. The clauses referred to are as follows:

“Nonuse of space from advertiser’s act or omission ■ is advertiser’s loss.”

“The advertiser cannot assign or sublet any privileges under this contract. ’ ’

The construction of contracts quite similar to the contract in question and the measure, of damages for the breach thereof by the advertiser has been before the Appellate Court of Missouri and the Supreme Court of Minnesota in the cases of Barron G. Collier, Inc., v. Domino Macaroni Mfg. Co., 218 S. W. 981; Barron G. Collier, Inc., v. Kindy, 146 Minn. 279.

In the Missouri case the court said: “The defendant is in no position, when it is the one ■ breaching the contract, to aslc that plaintiff should accept its breach and sell that which it had sold to the defendant in preference to other space owned by the plaintiff which had not been sold at all. And, again, the defendant could not ask that the space which it had refused to take should be sold at a lower price than plaintiff’s regular price to other customers, for, while this might mitigate the defendant’s loss, it would not g-o to make up what the plaintiff was losing, because it would be merely shifting its loss as to a given amount of space to its loss on another given amount of space.”

In the Minnesota case the court said: “We must bear in mind that defendant comes into the case, not in the role of an injured party, but in the role of one who has injured plaintiff by a confessed breach of the contract, and, while plaintiff must nevertheless use such effort as it reasonably may to reduce the damages arising from defendant’s wrong, we think plaintiff could not be reasonably asked to cut its rates for unsold space, with incidental disturbances of its business, in order to save defendant from the loss resulting from his own breach of contract.”

No error appearing, the judgment is affirmed.


text:
    Field v. Tyner.
    Opinion delivered March 3, 1924.
    1. Deed — life estate. — Where the granting clause of a deed contained a condition that the grantor and wife reserve the rights of the rents and profits arising from said lands for and during their natural lives, and at their death the grantee “is to take charge of the same under this deed and to hold the same unto him and his heirs and assigns forever, with all the appurtenances thereto belonging,” the grantor reserved a life estate in himself and wife, with remainder to the grantee.
    2. Homestead — estate in remainder. — A remainderman could acquire no estate of homestead in land where the life tenant survived him.
    3. Dower — seizin op husband.- — -Where a remainderman died during the -life of the life tenant, his widow acquired no estate of dower in the land, since he was never seized thereof.
    4. Executors and administrators — limitation.—To the rule that seven years’ delay after the death of decedent bars an application to sell his land for debts, there is an exception where his estate in the land was that of a remainderman, and the life tenant survived him, in which case the statute did not run until the death of the life tenant.
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    reversed.

      Robert E. Fuhr and J. M. Futrell, for appellants.
    1. The reservation in the deed, as is shown by the undisputed testimony,- was intended only as a charge on the lands for the purpose -of supporting the grantors during their respective lives. 2 Blackstone, chap. 3 pp. 511, 512; 7 Wend. 463, 468; 84 N. T. 16, 19; 2 Washburn on Beal Property, 248.
    2. We think the children of J. B. Field have a homestead interest in this land which they can now assert. This court has held that “when the particular estate is determined and the remainderman is entitled to immediate possession, he may claim his homestead in the premises, if his contingent interest has not been sold in the meantime by his creditors. 123 Ark. 607; 21 Cyc. 503; 15 A. & E. Enc. of L., 2d ed., 556; 5 Modern American Law, 297. The creditors have delayed too long to -assert their rights. This case comes within the rule announced in the case of Roth v. Holland, 56 Ark. 633, and in Baches v. Reidmiller, 157 Ark. 569.

      Bloch $ Kirsch and R. P. Taylor, for appellees.
    1. The granting clause in the deed makes it clear that the grantors reserved a life estate in the lands conveyed. The qualification in the granting -clause must be given full effect. 121 Ark. 99; 93 Ark. 5.
    2. The remainderman could not claim a homestead right in the land before the expiration of the life tenancy. 123 Ark. 607. He must have impressed the homestead character upon the land before the widow and children could claim it as a homestead. 132 Ark. 357.
    3. As to laches, the decisions are not uniform, but attention is called to 54 Ark. 65, and 141 Ark. 48, on the authority of which cases it seems clear that, if the creditors proceeded in a reasonable time after the death of Mary A. Field, and they did not delay unduly after her death, they had the right to a decree of sale.
   Humphreys, J.

Appellees, judgment creditors of J. OB. Field, instituted this suit against appellants in the chancery court of Greene County to subject the NE^, NW% and NW14, NE% section 4, township 16 north, range 4 east, in said county, to the payment of their claims. Letters -of administration were issued to T. B. Kitchens on the estate of J. B. Field on the 24th day of January, 1913, and their claims were probated and allowed in April and May of that year. The assets of the estate which were sold were not sufficient to pay the creditors in full. No attempt-was made, until the institution of this suit on the ’24th day of August, 1921, to subject the lands in question to the payment of said indebtedness. Said lands were owned and occupied by J. C. Field as his homestead, prior to and on the 24th day of February, 1908, on which day he and his wife conveyed same, to their son, J. B. Field, who, with his family, resided with them, incorporating in the granting clause of the deed of conveyance the following condition: ‘‘Whereas the grantors, J ames C. Field and Mary A. Field, reserve the rights of the rents and profits arising from said lands for and during their natural lives, and at their death, the grantee, J. B. Field, is to take charge of the same under this deed, and to have and to hold the same to the said J. B. Field and unto his heirs and assigns forever, with all the' appurtenances thereunto belonging. ”

J. C. Field died the day after the execution and delivery of the deed. J. B. Field, with his wife, Bertha, and their three children, Jewell, Lillian and 'Carrie, continued to live with Mary A. Field, widow of J. C. Field, upon the farm, until his death in 1913. During this time J. B. Field managed the farm, made some improvements thereon, and paid the taxes. After his death his wife and children removed to town, where they could be with her parents and the children could go to school. The grandmother, Mary A. Field, remained upon the farm, and paid the taxes thereon, until her death on the 7th day of April, 1921. This suit was then brought, to which appellants interposed the defenses that said lands constituted their homestead, which exempted them from sale, and, if not, appellees were barred by laches from subjecting them to the payment of their judgments. The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree condemning the lands to sale for the payment of appellee’s judgments, from which is this appeal.

The first contention of appellants, that the lands were exempt from sale because they constituted their homestead, must depend upon whether J. B. Field acquired a fee simple title or a remainder under his deed from his father and mother. Appellants construe the reservation in the deed as relating to rents and profits, and not to an interest in the lands. Appellees construe it as meaning a life estate in the lands. The word “same” throughout the reservation refers to lands as an antecedent, and not to rents and profits. The use of the word “appurtenances” in the reservation indicates that it refers to an interest in the lands, and not to rents and profits thereon, for the rents and profits have no appurtenances. ¡j

J. B. Field, then, being a remainderman during his entire life, could not have impressed the land with a homestead by his occupancy. Brooks v. Goodwin, 123 Ark. 607. ■ Appellants therefore did not derive an estate of homestead in the lands from their husband and father, J. B. Field. Stuckey v. Horn, 132 Ark. 357. Nor was Bertha Field entitled to a dower estate in the lands. To have entitled her to a dower interest therein, it was necessary that her husband, J. B. Field, should have been actually seized thereof during their coverture. He was only a remainderman, and not entitled to the possession of the lands during his life. McGuire v. Cook, 98 Ark. 118.

The only remaining question to determine is whether or not appellees were barred by laches from proceeding against these lands when they instituted this suit. This court is committed to the doctrine that, by analogy to the seven-year statute of limitations to recover real estate, creditors are barred by laches who do not proceed before that time to enforce their claims, unless there is something to excuse the delay. Roth v. Holland, 56 Ark. 63; Brogan v. Brogan, 63 Ark. 405; Black v. Robinson, 70 Ark. 185; Turner Heirs v. Turner, 141 Ark. 48; Backes v. Reidmiller, 157 Ark. 569. In the instant case more than seven years elapsed from the date of the issuance of the letters of administration on the estate of J. B. Field to T. B. Kitchen, before this suit was instituted, hut the intervening definite life estate of Mary A. Field was a sufficient excuse for the delay.- It was held in the case of Killough v. Hinton, 54 Ark. 65, that an assigned dower estate in the lands -sought to be subjected to the payment of the claims of creditors of an estate was a sufficient excuse for delay until the death of the widow. The facts in the case at bar with respect to the hindrance are identical with the facts in the case of Killough v. Hinton, supra, so limitations against the creditors did not begin to run until the death of Mary A. Field on the 7th day of April, 1921. While creditors may proceed at once to collect their claims out of lands subject to a definite life estate, they are not compelled to do so until the death of the owner of the life estate therein. Appellees were not barred by laches when they sought to subject the lands to the' payment of tlieir claims.

The decree is affirmed.