text:
    Akins v. Heiden.
    Opinion delivered May 28, 1928.

      W. A. Singfield, for appellant.

      Carmichael & Hendricks and McMillen & Scott, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted that appellants were not entitled to maintain their cross-complaint because there is not sufficient proof that they were heirs at law of Sam Summers, who originally owned the property involved in this controversy. We do not agree with counsel in this contention. While there are contradictory statements in the testimony of the witnesses introduced by appellants to prove their relationship to Sam Summers, we think that, when the surrounding circumstances are considered, it is fairly deducible from the evidence that Sam -Summers, Peter Sullivan and the fathers and mothers of the appellants were all children of Rebecca or Fairy Bee 'Sullivan. It appears that all of the children of Fairy Bee Sullivan, except Peter Sullivan, were born in the State of Alabama, and were illegitimate. Fairy Bee Sullivan came to Arkansas with her children and lived there with them and with her husband prior to and after 1867. Peter Sullivan was horn after she came to Arkansas. All the children were recognized by Fairy Bee iSullivan and her husband, after they name to Arkansas, as their own children, although all of them, except Peter Sullivan, were children by other men. Under our statute negroes cohabiting as husband and wife and recognizing each other' as such were deemed lawfully married from the passage of an act approved February 6," 1867. See Crawford '' & Moses’ Digest, § 7040. We have construed this act to mean negroes who cohabit as husband and wife and recognize each other as such in the State of Arkansas at the date the act was passed. Gregley v. Jackson, 38 Ark. 487; Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45; Black v. Youmans, 120 Ark. 209, 179 S. W. 335; and Meekins v. Meekins, 169 Ark. 265, 275 S. W. 337. As we have already seen, while there is some inconsistency in the testimony of the witnesses, on this point, we are of the opinion that it fairly establishes the fact to be that Fairy Bee Sullivan and her husband recognized all their, illegitimate children as their offspring in the State of Arkansas, where they were living on and prior to the 6th day of February, 1867. All the witnesses on this point .were ignorant negroes, and it was to be expected that their testimony would he somewhat vague as to the dates of the births of these various children.

It is next insisted that appellants are not entitled to maintain this action because the matter of the title to the property involved in this controversy was settled by the probate of the will of Sam Summers, - and that the whole matter is now res judicata. We cannot agree with counsel in this contention. The property involved in this lawsuit was not included in the will of Sam Summers. It is true, as contended by counsel for appellees, that there is a presumption against partial intestacy; but the will does not in any sense refer to the property in controversy, and it is very plain from its terms that it was not intended to he included in the will. The principle of res judicata extends only to questions of fact and of law which were decided in a former suit or which might have been decided in that suit. Jenkins v. Jenkins, 144 Ark. 417, 222 S. W. 714, and Howard-Sevier Rd. Imp. Dist. No. 1 v. Hunt, 166 Ark. 62, 265 S. W. 517.

Peter Sullivan and Lindsey Hicks contested the probate of the will of Sam Summers, but later dismissed their appeal from the order of the probate court probating the will, and this left the will admitted to probate, and, the time of appeal having expired, under the authority of Jenkins v. Jenkins, 144 Ark. 417, 222 S. W. 714, the probate of the will was conclusive as to all parties as to the property disposed of in the will. The will did not purport to dispose of the property in controversy, and no reference is made to it as being a part of the testator’s estate. Hence the order admitting the will to probate did not in any manner affect the property in controversy, and any order made by the probate court with reference to it could in no sense affect the rights of the persons who claimed title to said property otherwise than as heirs or legatees of Sam Summers. In other words, the rights of third parties could not be in issue by an order admitting the will to probate.

It is next contended that the testimony of Peter Sullivan, which was introduced in part for the purpose of establishing the relationship of appellants to Sam Summers, was not competent, because at the time a guardian had been appointed for him as an insane person. The record shows that the probate court on March '2, 1925, appointed a guardian for Peter Sullivan as an insane person. In June, 1926, an order was made restoring Peter Sullivan to the management of his own affairs. His deposition was taken on June 22, 1925, in this case. It is claimed that his testimony was incompetent because at the time there was an adjudication of insanity against him by the appointment of a guardian on March 2, 1925. We cannot agree with counsel in this contention. The deposition of Peter Sullivan was read to the chancery court, and, notwithstanding there existed an order of the probate court declaring him insane, the chancellor might give such weight to his testimony as he deemed proper under the surrounding circumstances, and upon appeal this court will give such weight to his testimony as the surrounding circumstances as to his mental condition would indicate. In this connection it may be stated that Peter -Sullivan was dead at the time the case was heard in the chancery court. When his testimony is read and considered in the light of the surrounding circumstances and in view of the matters about which he was testifying, we do not think that it can be said that his testimony is not entitled to any weight. On the other hand, it shows that he knew perfectly well what he was testifying about. Of course he was an ignorant, illiterate negro, but he seemed to understand what he was doing and what he was testifying about.

We now come to a consideration of the claim of appellees to the property in question upon the evidence introduced. This court is committed to the rule that an oral gift of land is not enforceable unless there is actual possession delivered, followed by the making of valuable improvements by the donee. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; Brown v. Norvell, 96 Ark. 609, 132 S. W. 922; Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; and Hunt v. Boyce, 176 Ark. 303, 3 S. W. (2d.) 342.

The undisputed facts show that a house costing between $12,000 and $15,000, which rents for $160 per month, was built upon the property involved in this controversy by the Heidens, who were the grantees by mesne conveyances of Lindsey Hicks and Peter -Sullivan; but the'most serious question in the case is whether or not there is sufficient testimony to warrant a finding that there was a parol gift of the land by Sam Summers to Peter Sullivan and Lindsey Hicks. There was a general finding by the chancellor in favor of appel-lees, who were plaintiffs; and the cross-complaint of appellants was dismissed for want of equity. In this view of the matter we do not know upon what theory the decision of the chancellor was based, but we presume that it was based upon the theory that there was an oral gift of said 'lot 2, which is in controversy in this case, by Sam Summers to Peter Sullivan and Lindsey Hicks, whom he recognized as his brothers. Sam Summers had no children of his own, and it is apparent from the testimony of Peter Sullivan and from the other evidence in the case that he recognized Peter Sullivan and Lindsey Hicks as his half-brothers. It does not appear that he had anything to do with his other half-brothers and sisters, and the fact that none of them are given anything under his will tends to show that he did not intend them. to have any of his property. Of course, if he died owning lot 2, which is in controversy, they would be entitled to their share of it.

A careful consideration of the testimony of Peter Sullivan, in the light of the attendant circumstances, leads us to believe that 'Sam Summers gave to Peter Sullivan and Lindsey Hicks the property in controversy in his lifetime, and that Peter Sullivan accepted the gift. It will be remembered that the will of Sam Summers was executed on the 10th day of January, 1919, and that he died on the first day of the following month. Lot 2 in controversy was entirely omitted from the will. No reference whatever was made to it. The will was written by Scipio Jones. Jones testified that Sam Summers told him that Peter Sullivan and Lindsey Hicks were his only heirs. He left each of them a lot in the city of Little.Hock. Sullivan and Hicks claimed to own the lot, and sold it after Summers died, upon the advice of Scipio Jones, a. colored lawyer. Sullivan testified that he was not crazy. We copy from his cross-examination the following:

“Q. You say you were not crazy? A. No sir. Q. You deeded a half lot that you did not own? A. Lawyer Jones told me it was mine. Q. Do you believe everything a colored lawyer tells you? A. No sir — no lawyer. Q. You sold that fellow that lot and gave him a deed to something you did not own, 'but you are not willing to give him a deed to half the lot you do own? A. No sir. You see I didn’t know anything about it except my brother told him it was his — brother Samuel Summers told me it was the first lot he bought in this town, and we was sitting in his house one day, the Christmas before he died, and he showed me where the lines of that property ran — how far it ran in his house. He told me this property would fall to his estate. Brother Summers told me that, and after he died lawyer Jones told me it fell to me, and by him telling me that it fell to me and my brother telling me, I believed it was mine. My brother told me — I said, ‘Now, brother, I don’t understand about no estate. What do you mean by estate?’ ‘You and Bud — he called brother Lindsey Bud— Q. Samuel Summers told you the Christmas before he died that he owned these two lots? A. That lot belonged to him — that he wasn’t going to will it to anybody. Q. That it was going to his estate? A. Yes sir, he said estate; and I asked him who was the estate, and he said ‘You and Bud’ — he meant Bud Lindsey— and Jones told me, after his death, that it belonged to me and my brother, and that is the reason I thought it was mine. Q. How much did they pay you for that lot.?y A. They paid us $3,700,1 believe it was. Q. You got half of it? A. Yes sir.”

We think it is fairly deduci'ble from this testimony that Sam Summers intended to give this property to his two brothers, and 'that he did give it to them when he pointed out the lines of the property on Christmas about a month before he died. It is true that no improvements were made on the property until after the death of Summers, but we think it is fairly inferable that Summers intended to give the property to bis brothers when be pointed out the lines of it on Christmas before be died, and that Peter Sullivan accepted the gift. .

This view of the matter is strengthened when we consider that, some ten days 'later, Summers made a will' and left other lots to his two brothers, and never attempted to dispose of the lot in controversy. He disposed of all his other property by his will. He recognized Peter Sullivan and Lindsey Hicks alone of all his brothers and sisters and their children as objects of his bounty, and it would seem that he did not attempt to dispose of the lot in controversy in his will because he recognized that he had already given it to his brothers when he had pointed out the lines of the property to Peter Sullivan, and that Peter Sullivan had, under the circumstances, accepted the gift in behalf of himself and brother.

In this view of the matter there was a parol gift of the lot, followed by the making of valuable improve- • ments on it. This, under, our decisions’ cited above, is enforceable. , ‘ .

The present suit was instituted on July 18, T924. Sam Summers had died in Little Rock, Arkansas, on February 1, 1919. His will had been admitted to probate, and the property devised under it had been taken charge of by the various legatees. Upon the advice' of their lawyer, Peter Sullivan and Lindsey Hicks claimed title to the lot ’ in controversy, ■ and sold it to • third parties, who made valuable improvements upon it. During all this time appellants made no claim whatever to the property, although it is inferable that they knew that Sam Summers had died, and must have known what property he owned. Thus it will be seen that all the parties recognized that Sam Summers had given the lot in controversy to his half-brothers, Peter Sullivan and . Lindsey Hicks. It is fairly inferable from all the evidence introduced that he delivered the possession of this lot to Peter Sullivan when he pointed out the lines of it on Christmas 'before he died, and that Peter Sullivan accepted the lot as a gift from Sam Summers to himself and his brother, Lindsey Hicks, when the lines were pointed out to him. The property at that time was unimproved and was incapable of any other delivery and possession than pointing out the lines in the manner above indicated.

To sum up, it may be said that, though expressed in varying phraseology, the general rule is that evidence necessary to establish a parol gift of land must be clear and unequivocal. Young v. Crawford, 82 Ark. 33. The statement of the donor was something more than a loose declaration of his intention or a casual conversation of his intention. As above stated, about ten days later he made a will, and devised all of his property except the lots in controversy, and told the attorney to leave it out of the will. This tended to show that the testator believed that he had already given the lot to his brothers. The conduct of the donees was equally positive and definite. Peter Sullivan took the advice of an attorney, and then, in conjunction with his brother, Lindsey Hicks, conveyed the lot to one who erected a valuable business house on it. The testimony shows that this ivas the desire of the testator. He had conveyed in his lifetime the north half of the lot to a person for the purpose of having a valuable business house erected on it. The deed contained an imperfect or indefinite description of the property. The grantee never carried out the intention of his grantor, but recon-veyed the lot to Peter Sullivan and Lindsey Hicks, who deeded it to persons who subsequently carried out the intention of Sam Summers and did erect a valuable business house on the lot.

In conclusion, we again say that we adhere to the rule laid down in the early case of Guynn v. McCauley, 32 Ark. 97, that chancery will not decree performance of a mere voluntary agreement. But, when a donee enters into possession and. makes valuable improvements on the land, the money thus expended on the faith of the gift is a consideration on which to ground a claim for specific performance. This holding is In accord with that of the Supreme Court of the United States in Neale v. Neale, 9 Wall. 1, where this language is used: “And equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied ■by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. ’ ’

Peter Sullivan was a witness for appellants, and they mainly relied on his testimony to show their relationship to Sam Summers; and he, Peter Sullivan, recognized them as children of the deceased, illegitimate brothers and sisters of Sam Summers, and as entitled to a share of his estate. His testimony, as quoted above, was brought out on cross-examination,, and shows clearly, when the situation and condition of the parties are considered in the light of what, followed in a few days, that there was a parol gift of the lot by Sam Summers to Peter Sullivan and Lindsey Hicks, and that, induced by the belief that the lot belonged to them, they sold it to persons who erected a valuable business house upon it, in accordance with the expressed desire of Sam Summers.

The result of our views is that the decision of the chancery court was correct, and it will be affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Frick v. State.
    Opinion delivered May 26, 1928.

      Gordon Emerson, B. V. Wheeler, John Cooper and Wils Davis, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

C. Frick was indicted by the grand jury of Crittenden County, Arkansas, for the crime of murder in the first degree in the killing of one Prentiss Hoop, by shooting him, in Crittenden County, Arkansas, on the 7th of June, 1927. The indictment was valid. The defendant was tried and convicted of the crime of voluntary manslaughter, and by judgment of the Critten-den Circuit Court sentenced to imprisonment in the State Penitentiary for two years, from which judgment he duly prosecutes this appeal.

1. The appellant contends, first, tliat there was no testimony to sustain the, verdict. The testimony -of Mack Hoop was to the effect that lie and his brother, Prentiss Hoop, on the night of June 7, 1927, in 'Critten-den County, Arkansas, were humming their way to the Kansas wheat fields. They caught a freight train on the Harahan bridge, and were riding between two boxcars. They rode about one hundred yards west, when two special agents of the railway company called, “Get off, you sons of b..:.., or we’ll shoot you off.” The Hoops jumped off the train, and started running down the embankment. One of the men who called to them fired two shots, one of which hit Prentiss Hoop in the back. Prentiss Hoop at that time was fifteen years old. Witness saw Mr. Carter down at the bottom of the dump, on the right-hand side. Carter was called by Guthrie, who stated that there was a boy dead up there. Witness and Carter went to the place, and found witness’ brother dead. The train, at the-time witness and his brother jumped off, was going west, and they jumped off on the north side. The men that did ,the shooting were on the walkway on the south side when they told them to get off the train. Witness recognized the defendant by his voice. Witness was interested in a suit that had been brought against the railroad company in Federal court in Memphis for the killing of his brother. There were two railway tracks on the bridge, and the train was on the south track and was going west. Witness saw the special agents when they said they would shoot them off. The train was moving slowly — about three or’ four miles an hour. Witness was running faster than the train was moving.. Witness ’ brother was behind witness.

Pictures were introduced in evidence with the positions marked showing the location of the train on the bridge, the place where witness and his brother jumped off the train, and the positions of witness when the shots were fired. The shooting occurred on June 7, 1927, in Crittenden County, Arkansas.

Witness Guthrie testified, in substance, that lie was the undertaker who took charge of the body of Prentiss Hoop on the night he was killed. His testimony shows that Hoop was shot in the back, three or four inches below the shoulder. The bullet, ranging downward, went through the body at an angle of about forty-five degrees. Witness found the body on the main trestle back towards the Mississippi River, about two hundred feet from the dirt dump on the Arkansas side. It was not a bright moonlight night, nor was it a real dark night. After being notified of the shooting, witness got to the place, and found the body thirty or forty minutes thereafter.

Charlie Martin, a negro, testified, on behalf of the State, that he had been working for the Frisco Railroad as a bridge tester for twenty-three years, and was on the Frisco trestle at the time Hoop was killed, about 150 yards south of the Harahan bridge and about 100 yards from where the shooting took place. Witness saw the shots fired. They were fired from the south side of the bridge next to the Frisco. Witness pointed out the defendant as the one who did the shooting. The Frisco bridge is lighted by electric lights all the way across. Witness was working on the Frisco bridge at the time. There were no electric lights where the shooting occurred. What light witness had came from right at the end of the bridge. The shooting occurred about two barrel lengths from the end of the bridge back toward Memphis — east. Witness heard somebody cursing before the shooting, and immediately after the cursing the shots were fired. The little man was the one who did the shooting. The witness, on cross-examination, finally stated that he would not say positively that the defendant was the man who did the shooting.

J. T. Carter testified that, on the night of June 7, 1927, he was out on the driveway of Harahan Park. He was sitting on the fence on the roadway, and heard some cursing and some one saying, “Get off there, you sons of b., or I’ll shoot you off.” He heard that a couple of times, and two shots were fired. Witness noticed two men dressed in dark suits and two fellows running- — the two shots were fired, and one of the fellows continued running down the hill. Witness flashed a light on him and asked him what the trouble was, and he said that the special agent shot at them. The train rolled on by. Witness saw a man on top of the train, and saw him with his flashlight down in the car after the shooting. Witness had seen two men before the shooting, and saw two flashes of the pistol. When the boy came down the hill, he said his brother was with him. Witness and boy walked up the hill together, and found the dead body of a young boy about fifteen or sixteen years of age. The train was running slowly when the shooting occurred. Witness’ attention was drawn by the cursing and shooting. The train was then rolling. The body was found on the right-hand side of the trade coming west.

Howard Curlin testified that he was a deputy sheriff of Crittenden County. On the morning of the next day after the shooting occurred and the defendants were brought over and put in jail, witness was talking to them at the jail. Both were present at the time the talking was going on. They were discussing the shooting, and the defendant Frick said that he did all the shooting — that Brownlow didn’t fire a shot. He didn’t have anything to do with it, except that he was present. The defendant Frick didn’t say that he shot and killed the boy — he said he did all the shooting. The defendants voluntarily surrendered themselves to the sheriff of Crittenden County.

William Shoate, a witness for the State, testified that he was at his restaurant, which was about sixty feet from the Harahan bridge, on the night of the shooting. He was in his living room, at a table, playing solitaire, when he heard two shots, and jumped up and opened the door, and looked down toward the viaduct to see if there was any trouble down there. He heard loud talking on the bridge, and finally went up there. He saw the body of Prentiss Hoop. Witness illustrated to the jury the location of the wound. The body was about six or seven steps from the dirt end of the bridge. It was a light nig’ht, and while the shooting was going on there was a motor-car, which operated on the Missouri Pacific and which had a very 'bright light, coming up the hill; It was going east.

W. D. Jones testified that he was collector on the viaduct, and was there the night the Hoop boy was shot. It was a bright night; the shooting occurred between ten and ten fifteen o’clock. Witness heard two shots, and saw one of them. He was looking right toward the railroad when the shots were fired — one right behind the other.- Witness was right at the end of the viaduct,-sitting with his back to the wall looking toward the bridge— he was right under the Frisco Bailway trestle. He heard a shot, and looked up and say the flash of a pistol — the second shot. It was impossible to recognize any one at that distance. The man who did the shooting was on the south side, shooting north. The blaze went north. There was no train between witness and the flash which witness saw. Witness was sitting right under the Frisco bridge, looking north.

The testimony on behalf of the defendants tended to show that Frick and Brownlow were “train-riders” employed by the Missouri Pacific Bailroad Company for the purpose of protecting the company’s property, and it was their duty to ride merchandise train No. 265, leaving Memphis shortly after night each night to Wynne. From February 23, 1927, until June 7, 1927, there had been 23 box-car robberies between Memphis and Parkin, Arkansan. on trains out of Memphis. Frick and Brownlow had been riding this train — No. 265 — each night from May 1 or 2.

Frick and Brownlow testified, in substance, that they were riding train No. 265 west on the night of June 7, 1927, and that, when, the train stopped near the west end of the Harahan bridge, they got off the train about thirty-five cars east of the engine, and started walking west .toward the engine on the south side of the' -train, which was composed entirely of box-cars, except f.or two stock-cars next to the engine. ■ They always walked toward the engine, as by so doing they could see objects between them and the engine in the light cast by the headlight and the fire-box. Frick saw two or three men standing on the south side of the train, apparently attempting to open the door to a ear,, and Frick called to Brownlow, who also saw the same thing. Each drew his pistol and ran toward the men,' hollering. Frick shot two shots westward over the heads of the men, for the purpose of frightening them, and the men then ran westward toward the engine and disappeared. They discovered a car door which had been partially opened when they arrived at the place where the men were. Frick deniéd shooting north or at any man.

The defendant ' introduced a photographer, who identified pictures which he took purporting to illustrate the position of Carter and the cars, the defendants, and the Hoops, on the night Prentiss Hoop was shot. These pictures were in evidence.

Dr. McVey testified as an expert that, in his opinion, a man wounded as Prentiss Hoop was could only have taken one or two steps after being shot.

V. E. Murray testified, for the defendants, that he was acquainted with the general reputation of witness Carter for truth and morality, and that it. was bad.

Learned counsel for the appellant contend that, under the above evidence, the court erred in not instructing the jnry, at appellant’s request, to return a verdict finding him not guilty. But the testimony speaks for itself, and is amply sufficient to justify the jury in finding that the appellant fired the shot that killed Prentiss Hoop.

2. The appellant requested the court to instruct the jury as follows: “You are instructed that, in cases of circumstantial evidence, each and every circumstance must be proved beyond all reasonable doubt, and it must show defendant’s guilt 'beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis. In the cases of circumstantial evidence the circumstances must be shown to be consistent with the guilt of the defendant and wholly inconsistent with his innocence.” Prayer No. 1 by the appellant was substantially to the same effect. The court refused these prayers for instruction. The appellant objected, and duly excepted to the ruling of the court in not granting same.

Counsel for the appellant assume that the State in this case relies for conviction wholly upon circumstantial evidence. But we are convinced that counsel are mistaken in this view of the evidence. It is not a case depending wholly upon circumstantial evidence. The jury might have found from the testimony of eye-witnesses that the appellant shot and killed Prentiss Hoop. Manifestly, the jury believed the testimony of the witnesses Carter and Martin, who saw the shots fired and saw the Hoops running, and also the testimony of Jones. Even the testimony of the appellant himself was to the effect that he fired shots, but that he fired above the heads of the fleeing men. It is not disclosed by the testimony that there were any other shots fired that night, so we have the direct testimony of eye-witnesses to the effect that they saw and heard the shots fired, that they were fired in the direction of the fleeing men, and that the man was found dead immediately after these shots were fired. Testimony of this nature could hardly be classified as wholly circumstantial, but it seems to us it was in the nature of direct testimony. Certainly, the most that could be claimed from a consideration of all the testimony in the record is that it consisted partly of direct and partly of circumstantial evidence. It occurs to us that it is a case where the ultimate fact to be proved depends more upon the credibility of the eye-witnesses than upon inferences to be drawn from collateral facts established by the direct testimony. It is not a case calling for the discussion of and the making of a nice discrimination between direct and circumstantial evidence as these two kinds of evidence are defined by standard law-writers on evidence. For, as is said by Mr. 'Burrill in his work on Circumstantial Evidence, page 231, speaking of the relative value of direct and circumstantial evidence:

“They are in practice constantly found to occur in .the closest connection; indeed, they are seldom wholly dissevered, especially so as to exclude the indirect species. It is very rare, as has been often remarked, that any body of evidence presented to the mind as the basis of a judgment is, on examination, found to consist wholly of direct, without any admixture of circumstantial, evidence. Finally, as thus associated, they are constantly found to be mutually consistent, and to cooperate toward the attainment of their common object, with the greatest harmony. That, indeed, may be pronounced the most perfect body of evidence in which strong direct testimony is sustained throughout by numerous and according circumstances.” See also 1 G-reenleaf on Evidence, § 13; Wills on Circumstantial Evidence, p. 16.

But, even if counsel were correct in assuming that this ease depended wholly upon circumstantial evidence, there was no prejudicial error in the ruling of the court refusing the above prayers for instructions, since this court has ruled in numerous cases, some of them quite recent, that it is not error to refuse such an instruction, even in cases depending wholly on circumstantial evidence, where the court, in other instructions, has correctly defined reasonable doubt and declared the law applicable to that subject. The court in this case gave correct instructions on the subjects of presumption of innocence, burden of proof, and reasonable doubt. See Adams v. State, 176 Ark. 916, 5 S. W. (2d.) 946; Barton v. State, 175 Ark. 120, 298 S. W. 867, and cases there cited.

Furthermore, the instruction was inherently erroneous because it told the jury that it was necessary for the State to prove “each and every circumstance beyond all reasonable doubt,” Such is not the law. It is sufficient if tiie State proves the guilt of the defendant in the whole ease beyond a reasonable donht. Lackey v. State, 67 Ark. 426, 55 S. W. 213 Cummins v. State, 163 Ark. 24, 258 S. W. 622; Sullivan v. State, 163 Ark. 11, 258 S. W. 643; Martin v. State, 163 Ark. 103, 259 S. W. 6, 33 A. L. R. 133.

It appeans' from thé bill of exceptions that-the court correctly defined the degrees of homicide contained in the indictment, and in one of its instructions, after defining voluntary manslaughter, told the jury, if they found the defendant guilty of voluntary manslaughter, they should express that finding in their verdict and fix his punishment at imprisonment in the State Penitentiary at a period- from two to seven years. The court directed the reporter to write out, to be given to the jury, the forms of the verdict for the different degrees of homicide included in the .indictment, and the reporter, in writing out the forms, erroneously transcribed the form of the verdict for voluntary manslaughter by inserting the prefix “in” before the word “manslaughter.” When the verdict was returned into court it expressed that the jury found the defendant guilty of involuntary manslaughter. The court thereupon asked the jury if it was their intention to return a verdict finding defendant guilty of involuntary manslaughter or voluntary manslaughter, and requested the jury, if it was their intention to return a verdict finding defendant guilty of voluntary manslaughter instead of involuntary manslaughter, to hold up their hands. All of the jurors, in response to the question of the court, held up their hands, thus affirming that it was their intention to return a verdict finding the defendant guilty of voluntary manslaughter. Thereupon the court, in presence of the defendant, his counsel, and all the jury, corrected the typographical error made by the court reporter, by striking from the form of the verdict the prefix “in” before the word “manslaughter” leaving the words “voluntary manslaughter,” and asked each member of the jury, after the verdict was corrected and read as corrected, if such were his verdict, and each replied in the affirmative. There was no error in this procedure. It was manifest that the word “involuntary” as originally written in the form of the verdict, was a clerical misprision of the court reporter, and that it was the intention of the jury to find the defendant guilty of voluntary manslaughter and to so return their verdict.

The record presents ho error. Let the judgment be affirmed. ' :


author: Smith, J.

text:
    Payne v. State.
    Opinion delivered May 28, 1928.

      Smith .& Blackford, for appellant.

      H. W. Applegate, Attorney General, John L. Garter, Assistant, and Pemx & Barrett, special counsel, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant to the penitentiary for the term of his natural life for the alleged killing of Fred Brandon. Only two assignments of error are argued for the reversal of the judgment, the first being that a child was erroneously permitted to testify on behalf of the State, and the second, that the court erred in refusing to give instruction number 2, requested by appellant.

No witness testified that he saw the killing, and the State relied entirely upon circumstantial evidence to secure the conviction. Two small boys, one Levi Phillips, who was seven years old, and another, Roy Pearson, whose age was eleven, gave testimony which supplied an essential link in the chain of circumstances.

The defendant denied the killing, and undertook to prove an alibi, and offered testimony to the effect that he was far removed from the scene of the killing at the time it was shown to have occurred. According to the testimony of the boys above named, appellant was in deceased’s field, with a gun and dogs, hunting, a few minutes before the shots, three in number, were fired by an automatic shotgun, which killed the deceased.

No preliminary questions touching the competency of Roy Pearson were asked that witness, but, when Levi Phillips was called, he was first interrogated by the prosecuting attorney as follows:

“Q. Tell these men your name? A. Levi Phillips. Q. How old are you? A. Seven years old. Q. When was your birthday? A. On Thursday, I think. I can’t tell you just when it was, but it was on Thursday. Q. Is it wrong to tell a story? A. Yes sir. Q. What becomes of boys that tell stories? A. They lock them up. Q. If you are good and die, where do you go ? A. Go to heaven. Q. Do you know Sam Payne here? Objection by the defendant.”

Counsel for appellant then asked the witness the following questions,:

“Q. Do you know what the punishment is, son, for telling a lie in court — you don’t know that, do you? A. (No answer). Q. Then you don’t know what the penalty for perjury is, do you? A. (No answer).”

Counsel for appellant, after propounding these questions, to which no answer was given, objected to the witness testifying, and saved an exception when his. objection was overruled.

After the court had ruled that the witness was competent to testify, the witness told about seeing appellant in the deceased’s field with dogs and gun, and was then subjected to a lengthy cross-examination by counsel for appellant. The answers of the witness indicated that the boy possessed at least average intelligence for a youth of his age. His answers were responsive to the questions asked him, and showed that he understood all these questions.

It is earnestly insisted that, under the rule announced in the case of Crosby v. State, 93 Ark. 156,124 8. W. 781, the witness was not qualified to testify. In the Crosby case, a colored boy named Will Howard, ten years old, was permitted to testify, over the objection of the defendant. In that case, as. in this, the witness stated that he knew it would be wrong not to tell the truth, but the colored boy answered that he did not know what would be done with him if he did not dó so, while the witness Levi Phillips answered that he would be locked up if he told a story. The witness Will Howard was held to be incompetent, and the admission of his testimony was error calling for the reversal of the judgment. In each case the witness knew it was wrong to tell a story, but the witness Will Howard did not know that any punishment would attend if lie did so, while the witness in the instant case not only knew it was wrong to tell a story, but that persons were punished who did so.

It is true, as counsel for appellant argue, that the witness made no answer to either of the questions asked him on his cross-examination. But we think the ability to correctly answer these questions was not the true test 'of competency. Many persons of sufficient intelligence to 'fully comprehend the obligation of an oath might be unable to answer what the punishment was for telling a lie in court, and who would not know what the penalty for perjury' is.

: In .determining the, competency of a witness testifying in a criminal case, we follow the common law on .that subject,, as announced in the case of Flanagin v. State, 25 Ark. 92, where it was said: .

“As to children, there is no precise age within which they are absolutely excluded, on the presumption that they have not sufficient understanding. At the age of fourteen all persons are presumed to have common discretion and understanding, until the contrary appears, but under that age it is not presumed; hence inquiry should be made as to the degree of understanding which the child offered as a witness possesses.; and if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he should be admitted to testify, no matter what his age may be.”

The common law on the subject of the competency of witnesses in civil cases was changed by the Civil Code, § 663 of which (§ 4146, C. & M. Digest) provides that “infants under the age of ten years, and over that age if incapable of understanding the obligation of an oath,” shall be incompetent to testify in civil cases, but the common law oh the subject of the competency of witnesses in criminal cases was not changed by this statute, and remains as it was announced to be in the Flanagin case, ■supra.

In the case of Wheeler v. United States, 159 U. S. 523, Mr. Justice Brewer, speaking for the Supreme Court of the United States, said:

‘ ‘ That the hoy was not, by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who see's the proposed witness, notice's his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.”

It is, of course, the duty of the trial court to follow closely the examination of a witness about whose competency there is a serious question on account of his youth, and if, during the course of the examination, it appears that the witness does not appreciate the questions asked him and the relevancy of the answers given, because of his youth, it would be the duty of the trial court to exclude the entire testimony of the witness, although his preliminary examination apparently indicated that the witness understood the obligations of an oath; but, as was said by Mr. Justice Brewer in the case above cited, the decision of this question rests primarily with the trial judge.

Under the test stated we think iio abuse of discretion was shown in the admission of the testimony of the witness Levi Phillips, as his entire examination showed an intelligent appreciation of the facts in regard to which the witness was interrogated, as well as the obligation to tell the truth in regard thereto.

The court refused to give instruction number 2, requested by appellant, which reads as follows: “Before the jury would be authorized to find the defendant guilty upon circumstantial evidence alone, the circumstances in proof must be so connected and linked together as to make an unbroken chain, and sufficient to exclude every other reasonable hypothesis for the commission of the offense except by the defendant.”

We think this instruction was objectionable because it is argumentative in form. The trial court might very well, in a case where the guilt of the accused depends entirely upon circumstantial evidence, tell the jury that the circumstances proved should be such that, if true, they excluded every reasonable hypothesis except that of guilt. But it has been several times held that the failure to do so is not error where the court has, in other instructions, fully charged the jury on the presumption of innocence which attends one charged with the commission of a crime and the necessity of showing the guilt of the accused beyond a reasonable doubt.

This exact question was recently very thoroughly considered by us in the case of Adams v. State, 176 Ark. 916, 5 S. W. (2d.) 946, where it was said:

“Even if it could be said that this were a case depending wholly upon circumstantial evidence, nevertheless the court did not err in refusing to grant appellant’s prayers for instructions Nos. 18 and 19, because the court had already fully and correctly instructed the jury on the credibility of witnesses, the weight of evidence, the presumption of innocence, and reasonable doubt. In Barton v. State, 175 Ark. 120, 298 S. W. 867, we said, referring to the refusal of the trial court to give a similar instruction: ‘We have held,, however, that it is not improper to refuse to give such an instruction, even in .eases where conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof resting on the State to establish the guilt of the accused beyond a reasonable doubt, and where reasonable doubt was properly defined. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Bost v. State, 140 Ark. 254, 215 S. W. 615; Cooper v. State, 145 Ark. 403, 264 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 628; Barker v. State, 135 Ark. 404, 205 S. W. 835; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23. The above correctly declares the law, and it is not in conflict with any of our previous decisions.”

In this case the court fully charged the jury on the subject of the credibility of witnesses. and the manner of weighing their testimony, and the presumption of innocence attending the defendant, and the necessity on the part of the State of proving the guilt of the accused beyond a reasonable doubt before convicting him, and we conclude therefore that there was no error in refusing defendant’s instruction number 2.

As no error appears in the record, the judgment must be affirmed, and it is so ordered.


text:
    Evans v. Roberston.
    Opinion delivered May 28, 1928.

      Duty & Duty, for appellant.

      Rice & Dichson, for appellee.
   Smith, J.

On April 4, 1925, J. A. Robertson owned certain lots in the city of Rogers, on which his residence stood and in which he resided with his wife, Zeva Robertson, and their infant son. They were in debt on the place to the extent of about seven hundred dollars, and applied to Ira D. Swearingen for a loan of that amount to discharge the indebtedness. Swearingen declined to make the loan, for the reason that he was unwilling to incur the expense of a possible foreclosure, but he agreed to take a warranty deed to the property and to execute an agreement to reconvey it at any time within one year after the date of the deed for a consideration of $770. This arrangement was consummated, and Robertson and his wife executed and delivered to Swearingen a warranty deed conveying- the property to him, and he, at the time of the delivery of the deed, executed the following contract:

“This agreement certifies that Ira D. Swearingen agrees and binds himself to convey to J. A. Robertson, Jr., or his assigns, the following described lands in Benton 'County, Arkansas, to-wit (describing lots), at any time within one year from, this date, providing the said J. A. Robertson, or his assigns, shall pay to the said Ira D. Swearingen during said time the sum of $770.

“Time is made the essence of this agreement.

“This 4th day of April, 1925.

“ J. A. Robertson, Jr.

‘ ‘ Zeva' Robertson.

“Accepted: Ira I). Swearingen.”

Robertson was addicted to the excessive use of intoxicating liquors, and before the expiration of the year became almost non compos mentis, and suffered from delirium tremens, and so deported himself that his wife was compelled to leave their home and return to that of her father. She did this because she and her father thought it unsafe for her to live with her husband. Bob-ertson’s condition was such that it became certain that be could not and would not redeem the property, and Mrs. Bobertson’s father, acting for her and in her 'behalf,, applied to Swearingen to redeem the property, and offered to pay the'$770 for a deed. This offer was made before the expiration of the year.

Bobertson appeared to be much under the influence of appellant Evans, who, from time to time, loaned him small sums of money and sold him merchandise out of his store on credit. Evans knew that Mrs. Bobertson was negotiating for the redemption of the lots, and she knew that he also contemplated purchasing them, and she offered to permit him to buy the property, which was worth from seventeen hundred to two thousand dollars, provided he would pay her $500, and she testified that she would not agree for Evans to buy the property unless he would pay her that amount of money, 'but this he declined to do.

One year to a day after the date of the deed and the contract to reconvey, Swearingen executed a deed to Evans for the property. Swearingen testified that Mrs. Bobertson’s father came to see him about redeeming the property, and that he would have permitted her to do so but, about the time the contract matured, Bobertson told him to make the deed to Evans, who was Bobertson’s ‘ ‘ assigns. ’ ’ Witness examined his contract, and saw that it read that he should reconvey the property to Bobert-son or his assigns, and he therefore conveyed the property to Evans, who paid him $770 in cash for a deed. The contract to reconvey had not been assigned to Evans by Bobertson. Witness at first declined to execute a deed to Evans, but, when his attention was called to the language of the contract, he made a deed as. directed by Bobertson, because he thought his contract required him to do so.

After executing the deed, Swearingen, on April 8, wrote appellee’s father the following letter;

“Dear friend: Robertson paid me, and as our contract read ‘Robertson, Jr., or Ms assigns,’ be made me make the deed to a man named Evans as his assign. I did not know that was in the contract until today.

“P. S. Am awfully sorry that it was in the contract that way.”

It was shown that Evans borrowed the money with which he purchased the lots, and as security therefor executed a mortgage on the lots.

Robertson died in June, 1928, and on July 1, 1926, Mrs. Robertson and her infant son brought this suit, and alleged that the money procured from Swearingen was a loan, and that the deed executed to him was in fact a mortgage, and that Robertson had procured the execution of the deed to Evans for the purpose of defeating the dower rights of his wife and the homestead rights of herself and their infant child.

Evans filed an answer, alleging that the conveyance to Swearingen was in fact a deed, as it purported to be, and that the contract executed at the time of the delivery of the deed was a mere agreement to reconvey within one year, and that time was made of the essence of the contract to reconvey, and the right to repurchase was. not exercised within the time limited.

The court expressly found the fact to be that Evans was not an innocent purchaser, and the testimony appears to abundantly support that finding. The court further found that the deed was in fact a mortgage, and that it was executed to secure a loan of $700, and it was decreed that the right of redemption existed and might be exercised by plaintiffs paying $770 of the money which Evans ■had borrowed from a third party to pay Swearingen, and to whom he had given a mortg*age, with interest at eight per cent, to date, and this appeal is from that decree.

Appellant earnestly insists, upon the authority of the case of Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027, that the deed from Robertson and wife to Swearing’en was an absolute conveyance in consideration of $700 paid them., and not a mere security for a loan for that amount, and that the agreement to reconvey within a year did not create a mortgage, hut was a conditional sale, which became absolute upon the expiration of the year.

We think the decree was not an erroneous one, even though appellants were correct in the contention stated (a point we do not decide), for the reason that Mrs. Robertson had a very substantial interest in the property if it were redeemed, to-wit, that of dower and homestead, and she regarded that right as of sufficient value to warrant her in redeeming the lots by paying the sum required for that purpose. Within the time limited for that purpose her father, as her agent in her behalf, offered to redeem the property, and would have done so had Swearingen not misconceived it to be his duty, under his contract, to convey the property to Robertson’s “assigns.” All parties knew, when Swearingen executed his deed to Evans, that Robertson could not and would not effect a redemption of the lots. Robertson and his wife were not divorced, and she had left his home only because her husband’s misconduct had made it unsafe for her and her child to live there. Her rights of homestead and dower subsisted, and to protect these rights she was entitled to redeem the property, and especially so when it became apparent that her husband would not exercise the right of redemption.

At § 299 of the chapter on Mortgages, in 19 R. C. L., page 503, it is said that the equitable right to redeem a mortgage, after breach of condition, extends beyond the mortgagor to all who claim through or under him, and that a right of homestead gives the privilege of redemption. The cases collected in the annotator’s note to the case of Mackenna v. Fidelity Trust Co., 6 A. & E. Ann. Cases 471, cited in the note to the above text, fully sustain the text.

Now, although the agreement between Robertson and wife and Swearingen may have constituted a conditional sale, and not a mortgage, there was. a contractual right to redeem within a year, and the holder of a homestead right was entitled to exercise that right. The interposition of Evans, who, as the court found, was, not an innocent purchaser, defeated the attempt to exercise this right, and the court below was correct therefore in-holding1 that the right of redemption had not been destroyed.

The decree of the court below is correct, and is affirmed.


author: Humphreys, J.

text:
    Bodner v. State.
    Opinion delivered May 28, 1928.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of ¡Sebastian County, Greenwood District, for receiving stolen property, and was ■adjudged to serve a term of une year in the State Penitentiary as a punishment therefor.

' Appellant first assigns as reversible error the insufficiency of the evidence to' support the verdict and judgment.

The evidence introduced by the State showed that the store of L. T. Byers at Alma, Arkansas, was burglarized the night before Thanksgiving, in 1926, and that clothing to the amount of $600 was taken; that three woolen dresses, a red sweater, a lumberjack and some other clothing, which was stolen out of the store at the time referred to, was at the home and in the possession of appellant, a part of which was being worn by him; that the articles found, as well as other property, were brought to the home of appellant nearly a year before his arrest, in cotton sacks, and first placed in a cotton-house, and at a later date brought into the house, where the tags were taken off the 'Clothing and burned, and that for a time the clothing was hidden under the floor;that subsequently a part of the property was removed by Frank Thomas and Joe Cook, who had brought same to the house. Although appellant stoutly denied being present when the tags were removed and burned and the clothing hidden under the floor, yet the jury believed the other witnesses, and their testimony is sufficient to support the verdict and judgment.

Appellant next assigns as reversible error the giving of instructions numbered 1, 2 and A. Instruction number 1 is as follows:

“If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Bart Bodner, in the G-reenwoQd District of Sebastian 'County, and within three years next before the filing of this indictment, three woolen dresses, one leather coat and one sweater, of more than the value of $10, the property of L. T. Byers, lately before then unlawfully and feloni-ously stolen, taken and carried away, did then and there unlawfully and feloniously have and receive, with the intent to deprive the true owner thereof, he, the said Bart Bodner, then and there, well knowing that the said property had been so unlawfully and feloniously stolen; taken and carried away, you should convict the defendant; otherwise you should acquit the defendant.”

It will he observed that the instruction required the jury to find, beyond a reasonable doubt, every essential fact necessary to a conviction upon a charge of receiving stolen property before returning a verdict of guilty, and to acquit appellant unless the charge had been established by proof beyond a reasonable doubt. The law applicable to the facts was correctly declared by the instruction.

It is unnecessary to set out instruction number 2 and determine whether it is a correct declaration of the law applicable to the facts, as no objection was made thereto or exceptions saved at the time it was given. It was too late to object and save an exception thereto after conviction.

It is also unnecessary to set out instruction number A and determine whether same is a correct declaration of the law applicable to the facts, as it was given at the request of appellant.

Appellant next assigns as reversible error the refusal of the court to give his requested instruction number '2. An examination of the instructions given reveals the fact that the requested instruction, in so far as same correctly declared the law, was fully covered by instructions numbered • 1 and 3 given by the court at the request of appellant.

Appellant’s fifth, sixth and seventh assignments of reversible error are as follows:

(5) That the court erred in modifying instruction No. 4, requested by defendant. (6) That the court erred in stating to the jury that, at the request of defendant, he had given instruction number 4, as modified, relating to the corroboration of an accomplice, and that he was withdrawing said instruction from their consideration. (7) That the court erred in substituting instruction No. A for instruction No. 4, as modified, previously given.”

Appellant is mistaken as to what the record discloses regarding his requested instruction No. 4, relating to the necessity of corroboration of the evidence of an accomplice before there can be a conviction. There is nothing in the record to show that the court modified the instruction and gave it as modified, or that it was given and afterwards withdrawn, or that the court substituted appellant’s requested instruction No. A for his requested instruction No. 4 after modifying same. "What the record actually reflects is that the court refused to give appellant’s requested instruction No. 4 because he gave his requested instruction No. A, which was a complete, full and correct instruction regarding the necessity for corroboration of the evidence of an accomplice before there can be a conviction upon his testimony. The court is not required to multiply instructions upon the same subject.

Appellant’s last assignment of reversible error is that the court erred in refusing to instruct as to the effect of finding of the value of the property received by appellant, if any, being under the sum of $10. Appellant did not request an instruction upon that point, and is in no position to complain because one was not given. It was appellant’s duty to have asked a correct instruction upon the question. Hays v. State, 129 Ark. 324, 196 S. W. 123.

No error appearing, the judgmentis affirmed.


author: . Humphleys, J.

text:
    Rice v. Milligan.
    Opinion delivered May 28, 1928.

      Golem.an & Reeder, for appellant.

      J. H. Tovmsend and L. B. Poindexter, for appellee.
   . Humphleys, J.

This is a suit brought by appellant against appellee in the eircnit court of Lawrence County, Western District, for alleged balances totaling $735.76 upon five promissory notes, one of which was executed for corn and the others for rent of a bottom farm for the years 1922, 1923, 1925 and 1926. A note was also executed for rent for said farm for 1924, but it had been paid in full, and was not included in the suit. The several rent notes sued upon were originally for $300 each. .One was executed each year for the rent for the farm for that specific year and made payable the following fall. The rent notes were similar in form and substance, so the purport of each may be understood by setting out only one of them. The first one executed is as follows: “$300.00 Jan. 21, 1922.

‘ ‘ On or before Nov. 1,1922,1 promise to pay to W. M. Rice the sum of three hundred dollars, with interest at the rate of 10 per cent, per annum from January 1, 1923, until paid; for.*.value received.

“The consideration for which the above note is given is for rent on the Oaynie Brook farm for the year 1922; east side of Oaynie Creek.

“Signed K. F. Milligan.

Indorsed: “March 29, 1923: Credit by one check given by Mrs. M. Gr. Shaver $300. Balance due May 25, 1925 .....,,.$ 9.12

1.51 Int. 1 yr. 8 mo.

Total.:....$10.63

December 10, 1926. Credit by 10 bu. corn $10. $10.63 paid in full.”

. Credits in different amounts appear on the respective notes.

Appellee interposed the defense to the alleged cause of action that there was an oral contemporaneous agreement to the effect that, should the crop be damaged or destroyed by the floods during any year of the five-year rental period, he should have a credit on the rental note for that particular year in tlie same proportion that the damage bore to the whole crop so damaged, and that under said agreement he was entitled to a credit of $225 •by reason of damage to his crops on said farm by overflow for the year 1923, and the sum of $270 by reason of damages to his crop by overflow on said farm for the year 1925, and that he had made other payments which did not appear as credits upon any of the notes sued upon.

A demurrer was filed to the answer and overruled, to which action of the court appellant objected and excepted.

In the course of the trial appellee was allowed to prove the alleged oral contemporaneous agreement, over the objection and exception of appellant. After he was permitted to introduce proof tending to show such an oral agreement, appellant testified that he did not agree to alloAV a pro rata credit on the rent notes on account of damages resulting to crops from floods.

The cause was sent to the jury, over appellant’s objection and exception, to determine this issue of fact, as well as what other credits appellee was entitled to on the rent notes, the court instructing the jury as follows relative to the issue of damages done by floods:

“Now, if you believe from the preponderance of the testimony in this case that the defendant, Milligan, entered into a contract with the plaintiff, Rice, for the lands that have been testified about in the case, and that it was agreed in said contract that, in case of an overflow and loss or damage to the crops, the defendant, Milli-gan, was to have credit in the event of such overflow for the loss of any of the crops, and further believe that there were such overflows during the term of years that he had this land rented from the plaintiff, Rice, that caused damage to the crop for any such year, then you would be authorized to give the defendant, Milligan, credit for such loss or damage as you believe from the preponderance of the testimony he has sustained from such overflows, if any. ’ ’

Tlie jury returned a verdict in favor of appellee, on which judgment was. rendered dismissing appellant’s complaint at his cost, from which is this appeal.

The trial court erred in sending the case to the jury upon the issue of whether the notes should have been credited on account of damage done to the crops for the years 1923 and 1925 by reason of the floods.

The rent notes were contractual by their terms, specifying a certain and definite amount to be paid by appellee for the rent of the farm in question for each year. No condition that appellant would allow a credit on the rent notes for damage done to the crops on account of floods was incorporated in the notes. The notes purport to be an absolute promise to pay so much rent each of the years for the rent of the farm, and to permit or allow oral proof to the effect that they should be credited pro rata for damages done to the crops by floods.would contravene the rule of law which precludes the admission of parol evidence to.contradict or substantially vary the legal import of the note. Harmon v. Harmon, 131 Ark. 501, 199 S. W. 553; Abbott v. Kennedy, 133 Ark. 105, 201 S. W. 830. It was said by this court in the recent case of First National Bank of Jonesboro v. Snyder Mfg. Co., 175 Ark. 1174, 1 S. W. (2d.) 817, that “parol testimony is not admissible to vary the terms of a written contract, or to show a contrary intention than that disclosed by the instrument itself, unless there is an ambiguity, and this rule is applicable to promissory notes.”

As stated before, the note on its face is contractual, and, as written, was a complete contract within itself, not subject to contradiction by parol testimony of an oral contemporaneous agreement.

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


author: Kirby, J.

text:
    Francis v. State.
    Opinion delivered May 28, 1928.

      R. W. 3me, Jr., for appellant.

      3. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Kirby, J.

These appeals are from judgments of conviction of appellant for possessing a still and manufacturing whiskey. These cases are consolidated here.

It is insisted for reversal that the testimony is insufficient to support the judgment, and that the court erred in compelling appellant to go to trial in the absence of his witnesses.

The testimony shows that the sheriff and his posse had come out to where this still was situated, and found it in operation on the day in question, the appellant being present in and about the still, and pouring water from the branch on the stillworm in the trough. He had on overalls, and was smutty and greasy, as though he had been working about it. Two empty kegs were found in his car.

He testified that he was a farmer, lived 20 miles away, and had come down to the still to get some whiskey. Accounted for his appearance by saying that he had had trouble with his oar before arriving, and had put on his overalls and fixed it, getting grease and dirt on his clothing.

It is argued that a list of Ms witnesses bad been given to the sheriff, but they had not been subpoenaed and were not present at the trial, and that he would have been able to show by them that he did not own the still or have it in possession.

The record does not show that he objected to going to trial, nor did he make a motion for continuance because of the absence of his witnesses, and, such being the case, he is not in position to complain about the matter here Brown v. State, 169 Ark. 324, 274 S. W. 1.

The testimony is meager as to his ownership or possession of the still, but he was present while the still was in operation, was pouring water on the worm and assisting in the manufacture of liquor that was being run at the time, and there was a quantity of mash on hand and enough operatives assisting to complete the manufacture of the mash into whiskey.

The testimony is sufficient to support the verdict, and the judgment in each case is affirmed.


author: Mehaffy, J.

text:
    Hultsman v. Carroll.
    Opinion delivered May 28, 1928.

      Owens •& Ehrman and St. Glair Hultsman, for appellant.

      Tom F. Digby, for appellee.
   Mehaffy, J.

The appellant,' in July, 1927, purchased a gasoline filling- station from the appellee, paying therefor $6,000. Appellant brought this suit, and alleged that, at the time he purchased the property, he informed the appellee that he intended to sell gasoline at a price less than the prevailing prices at other filling stations in the city. That, in all probability, the other companies would try to freeze him out of business by selling gasoline at a nearby station for less than the price set by the appellant. He told appellee that he would not purchase the property unless appellee would agree not to enter into any such combination or sell gasoline at a price equal to' or less.'than the price charged by appellant. The appellee, stated that.he did not care anything about the gasoline business, and. if .appellant would give him $6,000 he would let him have the property which was located across the street from appellee’s garage; and appellee would not sell.gasoline at a price equal to or less than the price charged by appellant. Appellant alleged that, relying on this statement, he paid appellee the money, and began selling gasoline four cents cheaper than the generally prevailing prices. Abont two months later appellee started selling gasoline one cent cheaper per gallon than the price charged by the plaintiff.

This suit was then filed in the chancery court, ashing that appellee be enjoined from a further breach o,f his contract, and for damages. A demurrer was filed to the complaint, which was by the chancellor sustained, and to reverse the order sustaining the demurrer and dismissing the complaint, this appeal is prosecuted.

The demurrer was as follows: (1) That the complaint did not state a cause of action in equity. (2) That the alleged contract upon which the action was based was on its face void and unenforceable. (3) That plaintiff had an adequate remedy at law.

The appellee first contends that the contract or agreement is void because it is in restraint of trade, and therefore contrary to public policy. A contract, of course, is against public policy if it is in any way injurious to the interest of the public or contravenes some established interest of society, or if it contravenes a public statute, or is against good morals, or tends to interfere with the public welfare.

“Public policy requires that every man shall be at liberty to work for himself, and shall' not be at liberty to deprive himself or the State of his labor, skill, or talent, by any contract that he enters into. On the other hand, public policy requires that when a man has, by skill or by any other meáns, obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market; and in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a case the same public policy that enables him to do this does not restrain him from alienating that which he wants to alienate, and therefore enables him to enter into any stipulation which, in the judgment of the court, is not unreasonable, having regard to the subject-matter of the contract. There are several reasons for upholding a covenant on the part of the vendor in all such cases to desist from the business in competition with the purchaser, which do not obtain in other cases. In the first place, the restraint is partial, in the sense that it covers only the time and locality during and in which the vendee carries on the business purchased, and beyond these limitations the seller is at liberty to carry on the same business. Then, too, the vendor receives an equivalent for his partial abstention from that business in the increased price paid him for it on account of his covenant; and his entering into and observance of the covenant not only do not tend to his pauperization to the detriment of the public, but, on the contrary, by securing to him the full value of his business and its good will, a value which he has an absolute right to secure in this way, the covenant operates to his affirmative pecuniary benefit and against his impoverishment, in that, while being paid for desisting from the particular business in the locality covered by it, he may still enter upon other pursuits of gain in the same locality, or upon this one in other localities. Finally, while such covenants preclude the competition of the covenantor, it is ordinarily neither their purpose nor effect to stifle competition generally in the locality, nor to prevent it at all in a way or to an extent injurious to the public, for the business in the hands of the purchaser is carried on just as it was in the hands of the vendor; the former merely takes the place of the latter; the commodities of the trade are as open to the public as they were before, the same competition exists as existed before, there is the same employment furnished to others after as before, the profits of the business go as they did before to. swell the sum of public wealth, the public has the same opportunities of purchasing, if it is a' mercantile business, and production is not lessened if it is a manufacturing plant.” 6 B. C. L. 793.

The demurrer, of course, admits that appellant paid $6,000 for the land 'because the appellee promised that he would not engage in competition with him in his place of business across the street. According to the allegations of the complaint, appellee made this agreement, and would not have been able to sell his place for the $6,000 to appellant if he had not made it. It does not undertake to prohibit him from selling gasoline anywhere else except at the place across the street, at any price he may wish to sell it. It does not seek to prohibit or interfere with the sale of any other person at any locality, but it alleges that appellant desired to purchase it for the purpose of selling gasoline to the public at four cents below the prevailing prices, and expected competition from others, and expected that they would try to destroy his business by selling cheaper than he could afford to sell. He therefore .contracted with the appellee that appellee would not engage in this competition at his place of business just across the street from the property purchased. The contract, if enforced, would in no way injure the public, and is not against public policy.

This court very recently said:

“There is no hard and fast rule in this State as to what contracts are void as being in. restraint of trade, and each case must be judged according to its own facts and circumstances. It is also well settled that a person may legally purchase the business of another for the purpose of removing competition, with an agreement on the part of the seller not to carry on the same business in the same place for a limited period of time. Covenants of this kind operate to prevent the seller from engaging in a business which he sells, so as to protect the buyer in -the enjoyment of what he has purchased and to enable the seller to get the full value of his property, including the good will of his business. In general this does not injure the public, because his business is open to all other persons, and there is little danger that it will suffer harm, the business is profitable. The agreement could in no sense prevent other persons from entering the business, if they should see it was a profitable one.” Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027; Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A. L. R. 247, and cases cited; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694; Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293.

It is not contended that the contract involved is either in violation of law or immoral, hut the contention is that it is contrary to public policy.

The appellee calls attention to and relies on the case of Anderson v. Shawnee Compress Co., 17 Okla. 231, 87 P. 315, 15 L. R. A. (N. S.) 846. In that .ease-the court said that the public welfare is the first consideration to which the courts will look, and then the question of whether the restraint upon the one party is or is not greater than the protection of the other requires. And the court further said:

“The real, the veritable, purpose actuating the officers of the Grulf Compress Company, as disclosed by its plan of organization and mode of operation, and as manifested by the circumstances surrounding the conduct of its business and the results of its management by them, is, beyond reasonable question, to place within their power the control of the compress industry, by purchasing or leasing those plants which are advantageously located in each of the hauling districts or territories established by the carriers in their cotton tariffs. * * * It may be true, as declared upon the witness stand by its .president, that such is not the purpose of this organization; then the intention of its officers, as evinced in the declarations which fall from their lips, is at wide variance from the purposes evidenced by the results they have brought about.”

The facts in that case are so different that the quotation from it by appellee has no application here. But we think a reading of the Oklahoma case will convince one, not only of the difference between the two cases, but that, according to the principles announced by the Supreme Court of Oklahoma, the contract in the instant case is not contrary to public policy.

Appellee calls attention also to the ease of National Phonograph Co. v. Schlegel, 117 Fed. 624. In that case the defendants filed a stipulation agreeing to an injunction. They agreed to be enjoined. But the court said: “Why do defendants agree to he enjoined? Is it simply to save costs ? Is not the contract one that stifles trade ? And if it is such a contract, should this court enforce it by the great writ of injunction? Are the parties to the contract alone concerned in its enforcement?”

Then the court further said:

“Injunctions are not granted as of course, and should not be granted when it is believed, as I do believe, that such a writ would he improperly used. As an injunction is not required to coerce the defendants in this case, they, in effect, having ag'reed to comply with complainant’s demands, for what .can the writ be used? Undoubtedly to intimidate or terrorize others engaged in the like business. It will be used to hold up to others that this court has recognized the validity of the contract. The decree of this court will be used for advertising literature; and, before a decree should be so used, it should be quite certain that such a decree is required as between the parties to the record. Believing that such a decree is not required as between the parties, to the record herein on such grounds, the writ, although agreed to by the parties, should he denied.”

In that case the court found, not only that the parties agreed to an injunction, hut they were already complying with the contract, and that, so far as the parties themselves were concerned, there was no occasion whatever for an injunction, hut it was sought for the purpose of terrorizing others and ■ compelling others to comply with the wishes of the complainant. But there is no intimation or suggestion in the above case that an injunction would not he granted to prevent the violation of a contract which was entered into by the parties and was not in restraint of trade.

Appellee nest calls attention to 22 Cyc. 866. It is true that it is there stated that, before a court will enjoin a breach, there must be no doubt about the validity of the contract and its terms must be clearly proved and the fact of breach established beyond doubt. But we have the facts here stated in the complaint and admitted to be true so far as the demurrer is concerned.

“Where one has made a valid contract restricting the use to which he may put his land, a violation of such restriction by him will be restrained by injunction; such covenants are usually made at the time of a conveyance, the grantee agreeing not to use the land conveyed in certain ways, or the grantor limiting his use of other land retained by him. ’ ’ 22 Cyc. 859.

If the contract is not contrary to public policy and the violations of the contract are continued from day to day, like the selling of gasoline, and the contract is not unreasonable, a court of equity will restrain the violation of the contract.

“The complainants are therefore entitled to a decree restraining the defendant from carting over any of the avenues in the park any stone taken from his lot for any purpose, except such loose stones as it is necessary to remove for the purpose of fitting his lot for building and occupation.” Haskell v. Wright, 23 N. J. Eq. 389.

The Supreme Court of Michigan, where the contract involved was alleged to be in restraint of trade, where it is sought to restrain one from carrying on the ice business, said: ‘ ‘ The rule is that contracts of this nature will be enforced in equity where the restraint is only partial, being limited as to time and place, and where reasonable grounds exist for the restraint, and where it is founded on a good consideration.” Up River Ice Co. v. Denler, 114 Mich. 296, 72 N. W. 157, 68 A. S. R. 480.

The court in the above case also held that the fact that there was no time limit for which the seller must refrain from carrying on the business would not render the agreement invalid.

While, according’ to the allegations of the complaint, there is no time limit in the contract involved in the instant case, yet the restrictions were especially limited by the contract to the lot across the street from the one purchased by appellant. The contract does not undertake to prevent any other persons from engaging in competition with appellant, nor to prohibit appellee from selling gasoline wherever he may wish, and at any price for which he may wish to sell, except at his place of business across the street from the lot purchased by appellant.

We think the complaint states a cause of action, and the decree is. therefore reversed, and remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


author: Mehapfy, J.

text:
    Arkansas-Louisiana Highway Improvement District v. Taylor.
    Opinion delivered May 28, 1928.

      Bose, Hemingway, Cantrell & Loughborough, Ed Trice and William L. Banogh, Jr., for appellant.

      John Baxter, for appellee.
   Mehapfy, J.

This suit was brought by the appellee, Walter E. Taylor, Bank Commissioner, to recover certain notes, assets of the Desha Bank & Trust Company, and pledged by the Desha Bank and Trust Company to the Arkansas-Louisiana Highway Improvement District Commission to secure the public funds which the commission had on deposit in said bank, and alleged that the hypothecation of such assets by the bank to secure the deposit of such funds was illegal and void as against the other creditors and depositors of said bank, and asked that the notes be returned to the appellee, so that collection might be made and the proceeds distributed pro rata to the depositors.

The appellant, Arkansas-Louisiana Highway Improvement District, is a road improvement district created by special act of the General Assembly, and the Desha Bank & Trust Company is a corporation organized under the laws of the State of Arkansas for the purpose of doing a banking business and receiving deposits.

On July 21, 1927, the assets of the Desha Bank & Trust Company were insufficient to discharge its obligations and liabilities, and the Bank Commissioner took charge for the purpose of liquidation. Prior to the closing of said bank, the improvement district had on deposit in said bank approximately $5,000, said funds being placed in said bank as a general deposit and checking account. A short time prior to the time the Bank Com.missioner took charge of the Desha Bank & Trust Company, it delivered to the treasurer of the improvement district certain notes, one for $3,147.40, one for $1,215.25, and one for $3,500. Said notes were listed as the assets of the Desha Bank & Trust Company at the time they were delivered to the improvement district, and they were delivered to the district for the purpose of securing a general deposit in the bank. Demand was made by the Bank Commissioner, and the improvement district refused to return said notes.

Appellee also alleged that the bank was insolvent at the time these notes were given to the improvement district to secure the deposit that was already in the bank, and that the insolvency was known to said district.

The answer of the improvement district denied all of the material allegations of the complaint, and the case was tried upon the following agreed statement of facts:

“It is agreed by John Baxter, representing the plaintiff, and Ed Trice, representing the Arkansas-Louisiana Highway Improvement District, that the only issue to be determined in this case is the right of a bank to secure deposits by pledging its own assets as security for said deposits.

“It is agreed that, on or about the first day of July, 1927, the Arkansas-Louisiana Highway Commission had on deposit in the Desha Bank & Trust Company approximately $6,000. That, prior to June first, the Arkansas-Louisiana Highway Commission had funds on deposit in numerous banks in Southeast Arkansas, and all banks were notified by the commission that they would be expected to file with the commission surety bonds covering said deposits in each respective bank prior to June 10, 1927, when act 182 of the Legislature of 1927 took effect. That for some reason the Desha Bank & Trust Company failed to file the surety bond, as requested, and had not filed the surety bond up to July 1, 1927, and on July 1, in lieu of said surety bond, the bank offered and the Arkansas-Louisiana Highway Commission took the notes described in the plaintiff’s complaint for the deposit the commission had in said bank, said notes being assets of said bank at the time they were hypo-thecated.

“It is further admitted that, if said notes had not been pledged or given to the commission, a draft would have been drawn on said bank for the payment of said funds.

“It is further admitted that the Desha Bank & Trust Company closed its doors by order of the Bank Department on July 21,1927, and that since that time the assets of said bank have been in charge of Walter E. Taylor, as Bank Commissioner for the State of Arkansas.

“It is further agreed that the Desha Bank & Trnst Company accepted deposits and paid cheeks until it was closed by the Bank Commissioner.

“It is admitted that H. Thane was president of the Desha Bank & Trnst Company, and that a resolution was in effect in said bank authorizing the president, vice president or cashier to' hypothecate and pledge notes, mortgages, and other assets as collateral security for loans.

“It is further admitted that the funds deposited in said bank were the property of the Arkansas-Louisiana Highway Improvement District, the same being public funds of said district.”

Appellant’s first contention is that banks in Arkansas have always had a right to pledge that portion of their assets proper to secure depositors; and that, second, whether they did have the right prior to the passage of act 182 of the 1927 Legislature, after the passage of that act the bank had the power. And appellant also states that it and the appellee are agreed in the statement of the very narrow issue involved in this appeal. Both appellant and appellee state that the only issue in the case is: Did the Desha'Bank & Trust Company, on July 1, 1927, have the power to pledge that portion of its assets proper to secure the public funds which the Arkansas-Louisiana Highway Improvement District had on deposit at said bank?

Act 182 of the 1927 Legislature provides that commissioners, treasurers and other officers .of all road, drainage, levee, bridge, .street, sewer, paving and all other improvement districts of this State, having in their charge the moneys and funds of such districts, shall,, before depositing same in any bank, trust company, savings association or with any other person or company, require of such depository a good and sufficient bond, signed by some surety company authorized to do business in the 'State of Arkansas, conditioned for the apt and full and complete payment of all funds so deposited, together with the interest thereon. It is further provided, however, that the said depository may, in lieu of said bond above mentioned, deposit United -States bonds, or notes of the State of Arkansas, the bonds of any legally organized school, levee, drainage, or other improvement district of the State of Arkansas, which bonds and all proceedings concerning the issuing of same have been approved ¡by some reputable attorney, who is recognized by the bond buyers of the United States as such, as collateral security, and such bonds shall be deposited in escrow with some other bank than the depository of the funds of such district, to be delivered to such district only on failure of the depository of such funds to repay the said funds to the district or to pay same on the order of the district.

Said act 182, as will be seen, expressly provides that the depository may, in lieu of giving the surety bonds provided for in the act, deposit United States bonds and other b.onds therein ’ mentioned. The securities authorized by said act are specifically mentioned, and the securities involved in this case are not included in the kind of bonds mentioned in the statute.

It is earnestly urged that the power to contract for guaranteeing or securing depositors arises from the nature of the relation existing between the banks and their depositors. The relation created between the bank and the depositor by the receipt of deposits is that of debtor and creditor. And act 182 expressly authorizes improvement districts, when they deposit money with banks, to require either a surety bond or the kind of bonds mentioned in the act in lieu of the surety bond. The Legislature could have authorized banks to pledge their assets to secure deposits, but it has not done so.

The Kentucky court said:

“When deposits are received, the bank becomes a debtor to the depositor for the amount of the deposits, and, if it agrees to pay interest, for that also. These are the only term's and conditions regulating deposits and the payment of interest, and if, in addition to this, the bank -may pledge its assets to the depositor, then it may • exercise another most extraordinary power, which is not conferred by article 2 and not necessary for the conduct of its business of receiving deposits and paying interest thereon. It would he a dangerous implication to deduce from the words of the statute, which should rather he construed strictly for the benefit of the stockholders and protection for the depositors. The exercise of such a power is therefore clearly 'beyond the terms of the law or any reasonable or necessary implication which the court would 'be authorized to deduce from the language of the statute, and would tend to lessen the usefulness of the banks as great public institutions by destroying public confidence in them. Such a practice, if indulged and authorized, might work great injustice and inflict financial loss, not only on the depositors, but on the stockholders as well. Large depositors, if secured, might absorb the greater part of the assets of the bank and inflict loss upon unsecured depositors and financial ruin upon innocent stockholders under the double liability law.” Commercial Bank & Trust Co. v. Citizens’ Trust & Guaranty Co. of West Virginia, 153 Ky. 566, 156 S. W. 160, 45 L. R. A. (N. S.) 950, Ann. Cas. 1915C, 166.

If a bank could pledge any portion of its assets to secure deposits, it could pledge all of its assets, because, if the authority to pledge its assets exists at all, it is without limit. And a few large depositors might be able to secure the entire assets of the bank as a pledge for their deposits, to the injury of every depositor and the stockholders. The act relied on should be strictly construed for the benefit of the stockholders and protection of the depositors, and the power to deposit assets by a bank should not be held to extend beyond the express authority given in the statute.

Learned counsel have referred to and discussed many authorities, but the authorities are not in harmony, and it would serve no useful purpose to review or discuss the authorities relied on. We adopted.the view expressed by tbe Kentucky court in tbe case above referred to, and it would therefore be useless to discuss tbe authorities taking tbe opposite view.

While it is true that, when deposits are received by a bank tbe bank becomes the debtor to tbe depositor for the amount of the deposit, we think there is a difference between this debt and a debt created by the bank in borrowing money, although in both instances, that is, where one deposits money in the bank and where one makes a loan to the bank, the relation of debtor and creditor exists, and while the bank may pledge its bills receivable to secure loans, it does not follow that it may do so to secure deposits.

“The doctrine that there is no difference between a loan and a deposit we cannot accept in all its implications. It is true that in law the two transactions have many characteristics in common; but so have other business deals which, nevertheless, are not identical in all their legal incidents. The striking fact remains, a fact which this court cannot ignore, that a real difference between a deposit and a loan has always been assumed, as a matter of custom, in the banking business itself, and in all legislation dealing with the subject since statehood.

“We are warranted in taking judicial notice of the fact that, in the banking business, it has been and still is customary to treat loans and deposits as distinct and essentially dissimilar transactions. Without going into details, this fact is evidenced by methods of bookkeeping and of making reports of the financial condition of the bank, both to private individuals, through the press or otherwise, and to the public examiner. Originally, one of the main functions of a bank was to receive money deposits or valuables for safekeeping, and this early concept of a bank’s primary office has, in a large measure, been recognized by custom in the business, and has influenced the course of legislation upon the subject. * * * If the power exist to pledge bills receivable in order to secure a general deposit, it means, in all ordinary circumstances, that its repayment would be insured by the other and unsecured depositors of the bank, for, manifestly, a sale of the pledge, in the event' of insolvency, would reduce the assets available to pay general depositors by the amount or value of the securities. The principle of subrogation would in but few, if any, cases be efficacious to avert this result. It is difficult to discover any principle on which the receiver of the bank could recover from the surety for the benefit of the depositors, after the obligation to pay the public deposit has been discharged by a sale of the pledge; and in case the public depositor proceeds first against the surety on the bond, the surety would have ‘the benefit of every security’ held by the principal, and it would be subrogated to the rights of .the public corporation in the securities. * * * If the power exist, it is without limit or qualification in the statutes; and there is no requirement, legal or administrative, which removes the mantle of absolute secrecy from the transaction. The bank could — as every business man knows has been done on occasion — make the pledge agreement, keep the assets in its possession, and execute its receipt therefor to the favored depositor, all without a trace on the records of the corporation showing the transaction which' actually took place.” Divide County v. Baird, 55 N. D. 45, 212 N. W. 236, 51 A. L. R. 296.

Of course the bank could pledge the assets mentioned in act 182, the Legislature having authorized improvement districts to receive pledges of this kind from the bank, but the power to pledge the assets of the bank should not be extended beyond that expressly authorized by the Legislature.

Having reached the conclusion that the correct view of the law is stated in the decisions to which we have called attention, it would unnecessarily prolong this opinion and serve no useful purpose to review other authorities. We think the law as announced in the two decisions to which we have called attention is the better rule, and, adopting that rule, it becomes unnecessary to discuss the other questions discussed 'by counsel in their brief.

The decree of the ’chancery court is therefore affirmed.