author: Hart, C. J.,

text:
    LeMaire v. Henderson.
    Opinion delivered October 3, 1927.
    1. Schools and school districts — consolidated county school districts. — Acts 1927, p. 531, providing for the establishment of consolidated county school districts in counties having a population exceeding 75,000 persons, held not contrary to Const., art. 14, providing that the Legislature shall provide for the maintenance and support of common schools, as the Legislature has authority to make a legitimate classification of schools.
    2. Schools and school districts — establishment of school districts. — Const., art. 14, requiring the Legislature to provide for the establishment, maintenance and support of a system of common schools, gives the Legislature a free hand in the establishment of school districts and in division of territory of the State among them.

      3. Schools and school districts — establishment of consolidated school districts. — Acts 1927, p. 531, authorizing the establishment of consolidated county school districts in counties voting to accept the benefits of the act, which have a population of 75,000 or over, according to the last Federal census preceding the election, and excepting from the operation of the act school districts in cities having a population of 10,000 persons, is not invalid as making an improper classification of school districts.
    4. Schools and school districts — method of classification. — In classifying school districts, the Legislature miay consider the density of the population, wealth of the country, system of roads, and topography of the country, with reference to whether it is hilly or not.
    5. Schools and school districts — method of electing school trustees. — Acts 1927, p. 531, providing for the establishment of consolidated county school districts- in counties voting to accept the benefits of the act, is not invalid under Const., art. 14, because it. provides a general method for the election of school trustees and for the division of territory into school districts.
    6. Schools and school districts — local and special act. — Acts 1927, p. 531, providing for the establishment of consolidated county school districts in counties having a population of 75,000 or over, according to the last Federal census preceding the election “herein provided for,” is not invalid as in violation of the constitutional amendment forbidding the passage of special or local laws, though its application is confined to one county only, since it may hereafter apply to counties having the requisite population.
    7. Constitutional law — delegation of legislative power. — Acts 1927, p. 531, providing for the establishment of consolidated county school districts in counties having a population of 75,000 or more which vote to accept the benefits of the act, is not invalid as delegating' legislative power to the people, as the statute is complete in itself, but makes its enforcement depend upon an election called for that purpose.
    Appeal from Pulaski Chancery Court; Frank H. Bodge, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    C. J. LeMaire brought this suit in equity against D. T. Henderson and other members of the county board of education to keep them from proceeding’ -with the consolidation of the school districts of this county under the provisions of an act of the Legislature of 1927, commonly known as the county unit school system. The chan-eery court sustained a demurrer to the complaint, and, the plaintiff declining to amend his complaint or to plead further, it was decreed that his complaint be dismissed for want of equity. The case is here on appeal.

      Ed B. Dillon, J. II. Bowen and S. 8. Jefferies, for _ appellant.
    Emerson, Donham & Fullc, for appellee.
   Hart, C. J.,

(after stating the facts). This appeal questions the constitutionality of an act of the Legislature of 1927, providing, by a vote of the people, a county unit school system in counties having a population exceeding 75,000. Acts of 1927, page 531. Section 1 provides that the act shall apply only to counties which, according to the last Federal census preceding the election herein provided for, have a population of 75,000 or over.

Section 2 provides that, upon the petition of not less than one hundred qualified electors of any county in this State, the county hoard of education shall, within thirty days, call an election to be held in said county, at which election the qualified electors shall vote on the question of whether said county, outside of the school districts pertaining to cities with a population exceeding ten thousand inhabitants as shown by the last Federal census, shall be made into one school district. Section 3 provides for the manner of giving notice of said election. Section 4 provides how the election shall be conducted. Section 5 provides that, in ease the county, outside of the districts organized in the cities named, is made into one school district, such district shall become owner of all the property of the former school districts composing it. Special school districts in cities of a population of more than 10,000 inhabitants are not affected by the act. Section 6 provides that the consolidated district shall be a special or single school district with all the powers of a single special school district of the first class. Section 7 looks to protecting the obligations of the contracts of the consolidated districts. Section 8 provides for a bond issue to borrow money for purchasing sites for school buildings and erecting, equipping and repairing the same. Section 9 provides that, for the purpose of administration, the county board of education shall divide the county school district into local divisions and that the duties of the local trustees shall be outlined by the county board of education.

It is first earnestly insisted that the act is in violation of article 14 of our Constitution, relating to the subject of education. That article makes it the duty of the Legislature to provide for the establishment, maintenance and support of a system of common schools in this State. This court has recognized from the beginning that the Legislature must employ aguncies to accomplish that object, and that a school district is a proper agency therefor. To effectuate the purposes of the Constitution, this court has recognized generally that the Legislature has what is commonly called a free hand in the establishment and division of the State into school districts. The power given to the Legislature to classify school districts in any reasonable manner is no longer an open question in this State, and a legitimate classification has been upheld generally, unless it has clearly gone beyond reasonable limits in defining the classification. Such classification has been upheld when applied to both cities and rural territory being organized into single or special school districts and into common school .districts. The Legislature recognizes the difference in population, wealth, and the topography of the country in the organization of school districts. School District of Hartford v. Hartford Special School District, 102 Ark. 261, 143 S. W. 895; Crow v. Sp. Sch. Dist. No. 2, 102 Ark. 401, 144 S. W. 226; Bonner v. Snipes, 103 Ark. 298, 147 S. W. 56; Sp. Sch. Dist. No. 2 v. Sp. Sch. Dist. of Texarkana, 111 Ark. 379, 163 S. W. 1164; and Krause v. Thompson, 138 Ark. 571, 211 S. W. 925.

There is no constitutional objection to the classification of school districts any more than there is to the classification of cities. Classification may become as necessary for school districts as for cities. The needs of school districts, may differ as substantially as those of cities. The density of population,, the wealth of the country, the system of roads and the topography of the country with reference to whether it is hilly or not, may be taken into consideration. This is the legitimate office of classification, and, so long as the Legislature makes a reasonable classification which is uniform in its operation, its power is supreme in the matter. The uniformity of a system of public schools is not interfered with by providing a general method of the election of trustees and the division of the territory into school districts. State v. Long (Mont.), 52 Pac. 645; and Minsinger v. Rau, 236 Pa. St. 327, 84 Atl. 902, Ann. Cas. 1913E, p. 1324. In a note to the case last cited it is said that with the right to create also inheres the right to classify school districts and to enact different provisions for the different classes, providing' the classification is based on distinctions that afford a reasonable ground for the classification, and various decisions of several State courts are cited in support of the text. In the same case-note the substance of the decision in State v. Long, Ann. Cas. 1913E, p. 1332, is stated as follows.

“A law classifying school districts according to population for the purpose of the election of trustees is not violative of a constitutional provision which requires that provision shall be made for the establishment and maintenance of a uniform system of public schools, and that the legislative assembly shall establish and maintain a general, uniform and thorough system of public free common schools. It is sufficient if the law passed -makes a reasonable classification, and is reasonable and uniform in its' operation and effect on all districts within the classification made, although, at the time of the enactment of the statute, the classification may extend to a few districts only.”

Another objection to the statute is that the act, by its terms, is merely confined to Pulaski County, and for that reason is in violation of an amendment to our Constitution forbidding the passage of special or local laws. In making this contention reliance is placed upon, the decision of this court in Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335. In that case the court held that the act was purely local because it could only apply to Mississippi County. It will be noted, however, that the act was not prospective in its operation, and that no county other than Mississippi County could ever fall within its operation. Hence we said that, while the law was genéral in form, the court could not permit the constitutional prohibition to be overruled by enacting a local law under the guise of a general statute. In the case at bar we think that the ease falls within the principles of. law announced in McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707. In that case it was held that, to make a law applicable to municipal corporations general, it is not necessary that it should operate upon all cities and towns in the -State, but that it is sufficient of it applies to such cities and towns coming within the designated class. We recognize that the form of the statute does not control in determining whether it is general or special. We also held that the Legislature may classify counties, cities and towns according to population, where such classification rests upon substantial differences in situation and needs. Here the act is prospective in its operation. It is not. confined to counties having a population of 75,000 or over at the time of the passage of the act. Counties which might have a population of 75,000 or more at any time in the future automatically fall within the terms of the law. Construing the words, “ which, according to the last Federal census preceding the election herein- provided for, ’ ’ according to the general rules of construction,'when taken in consideration with the whole context of the act, we think mean the census next preceding the election which is to be held under the provisions of the act. Hence, as above stated, when any county acquires a population of 75,000 or more in a Federal census, it comes within the terms of the act, and may operate under its provisions and hold an election for the purpose of organizing its school districts into, one district.

Another objection to the constitutionality of the act is that its provisions amount to a delegation of legislative power to the people. It is a rule well established that, while the Legislature may not delegate to the people the right or power to make laws, it may enact a law and consult the people as to the propriety of putting it into effect. The statute does not delegate legislative power so long as it is complete in itself when it has passed the Legislature, even though it is left to a vote of the people when it shall come into operation. In the case at bar the law is complete in itself and declares the result which may come from holding the election under its provisions. It is simply a case where the Legislature passed a complete statute but made its enforcement depend upon the will of the people, to be expressed at an election called under the provisions of the act for that purpose. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Lee Wilson & Co. v. Compton Bond & Mortgage Co., 103 Ark. 452, 146 S. W. 110; State v. Martin & Lipe, 134 Ark. 420, 204 S. W. 622; Van Hook v. Wallace, 143 Ark. 203, 220 S. W. 37; Thompson v. Trice, 145 Ark. 144, 223 S. W. 367; Capps v. Judsonia & Steprock Road Improvement Dist., 154 Ark. 46, 242 S. W. 72; Summers v. Road Imp. Dist. No. 16, 160 Ark. 371, 254 S. W. 696; and Miller v. Witcher, 160 Ark. 479, 254 S. W. 1063.

The result of our views is that the Legislature was within its power in passing the law in question, and it becomes our duty so to declare. It follows that the judgment of the chancery court was correct, and will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Kirk v. North Little Rock Special School District.
    Opinion delivered October 3, 1927.
    .1. Judgment — conclusiveness as to stranger — Where the purchaser or holder of bonds issued by a school district was not a party to an action involving the validity of such bonds, his rights cannot be affected by a decision on the question whether the school district was authorized to issue such bonds.
    2. Appeal and error — moot question. — The Supreme Court will not give opinions upon controversies or declare principles of law which cannot be executed or which could not have any practical effect in settling- the rights of litigants under any judgment or decree rendered.
    • Appeal from Pulaski Chancery Court; John E. Mar-tinecm, Chancellor;
    appeal dismissed.
    STATEMENT OP PACTS.
    Chester A. Kirk brings this suit against the North Little Rock Special School District and the directors thereof to enjoin them from selling school district bonds for the purpose of using the proceeds thereof for current expenses, and that the bonds so issued be declared null and void.
    According to the allegations of the complaint, Chester A. Kirk is ia citizen, resident and taxpayer of. the North Little Rock Special School District, which is a duly organized special school district and one of the defendants in this action. The other defendants are the directors of said special school district. On September 23, 1926,. the defendants sold something over $75,000 of the school bonds of said district. The complaint alleges that the bonds so sold would be used for current expenses. The record shows that no injunction bond was given and that the school bonds were sold and delivered to the purchaser thereof before the suit was filed. This fact inferentially appears from the complaint, because it alleges that the sale of the bonds was to take place on October 13. 1926, and the present suit was not filed until October 15, 1926. The complaint also alleges that there were several bidders for the bonds at the sale, and that the Bankers’ Trust Company of Little Rock, Arkansas, became the purchaser of the bonds. The court sustained a demurrer to the complaint, and, upon the plaintiff electing to stand upon his complaint and refusing to plead further, the complaint was dismissed for want of equity. After the plaintiff had presented his appeal to this court, the secretary of said school board filed an affidavit that the bonds in question had been sold and the proceeds spent by the directors of said school district.

      Melboiorne M. Martin, for appellant.

      Tom Digby and Carmichael & Hendricks, for appel-lee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant claims that he only desires the court to pass upon the question of whether or not the defendant special school district could issue bonds in payment of the current expenses of the schools of the district. To pass upon the question insisted upon by appellant could not possibly result in any benefit to him. It is fairly infer-able from his own complaint that the bonds had been issued and sold to the Bankers’ Trust Company, which is not made a party to the action, before the present suit was brought. The affidavit of the secretary of the board filed in this court shows that the bonds had been sold and the proceeds spent. There is no denial of this fact. The purchaser or holder of the bonds not having been made a party to the action, his rights could not in any wise be affected by any decision we might make. Hence a decision of the question presented by the appeal, even if favorable to the contention of the appellant, could not result in any practical benefit to him. The court could not make any order relative to the bonds which would affect the holder of them. The sum realized from a sale of the bonds has been expended by the district. It could only declare what it believed the law to be upon the issue attempted to be raised by appellant. It has never been the policy of this court with respect to litigated cases to decide cases AVhich, by reason of intervening facts, seemed to be of no practical application to the controversy between the parties. It is the duty of the courts to decide actual controversies by a judgment or decree which can be carried into effect, but not to give opinions upon controversies or declare principles of law which cannot be executed or which cannot have any practical effect in settling- the rights of the litigants under the judgment or decree rendered. Mabry v. Kettering, 92 Ark. 81, 122 S. W. 115; Kays v. Boyd, 145 Ark. 303, 224 S. W. 617; Blakely v. Newton, 157 Ark. 351, 248 S. W. 907; Mills v. Green, 159 U. S. 651, 16 S. Ct. 132, 40 L. ed. 293; Jones v. Montague, 194 U. S. 147, 24 S. Ct. 611, 48 L. ed. 913; Wilson v. Shaw, 204 U. S. 24, 27 S. Ct. 233, 51 L. ed. 351; and So. Pac. Terminal Co. v. Int. Commerce Com., 219 U. S. 498, 31 S. Ct. 279, 55 L. ed. 310.

We do not pass upon the issue attempted to be raised by appellant in this appeal, but, following the principles of law announced in the decisions above cited, we dismiss the appeal without prejudice to the rights of any one. It is so ordered.


text:
    Commercial Credit Company, Inc., v. Hayes-Lamb Motor Company.
    Opinion delivered October 3, 1927.
    1. Mortgages — priority op mechanics’ lien. — Under Crawford & Moses’ Dig., §§ 6866-6874, giving automobile repairmen a statutory lien superior to any mortgage or other obligation against the automobile, except the lien of a conditional seller and the claim of a bona fide purchaser for value, an automobile repairman has a lien thereon superior to a lien of a mortgagee, under a mortgage given to secure payment of part or all of the purchase price, notwithstanding the conditional seller and purchase-money mortgagee occupy similar positions.
    2. Mechanics’ lien — enforcement. — The right to a mechanics’ lien being entirely statutory, not only the right itself, but the method of enforcing it, must depend on the statute.
    3. Mortgages — purchase money op automobile. — A chattel mortgage given for the purchase money of an automobile does not place the mortgagee in the same class as one who sells an automobile reserving the title as security for the purchase money, under Crawford & Moses’ Dig., § 6866-6874, relating to repairmen’s liens.

      Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This is an action in replevin by Commercial Credit Company, Inc., against Hayes-Lamb Motor Company and Lee Tucker to recover a Dodge automobile.
    The Hayes-Lamb Motor Company is a dealer in automobiles and a garage-keeper at DeQueen, Arkansas. On the 8th day of June, 1925, one of its agents sold to Lee Tucker of Broken Bow, Oklahoma, at his residence, a Dodge automobile for $1,135. Tucker paid part of the purchase price in cash and gave his promissory note in the sum of $816, payable in monthly installments, for the balance of the purchase money, and executed a mortgage on said automobile to secure the note. The mortgage was duly recorded in McCurtain County, Oklahoma, in which Tucker resided, and the note and mortgage were at once transferred by Hayes-Lamb Motor Company to Commercial Credit Company, Inc., for value received. No part of the note given for the balance of the purchase money has been paid, and all of the installments are past due. Tucker was allowed to have possession of the automobile, and it was wrecked while in his possession subsequent to his purchase of it. Tucker then carried the automobile to the place of business of the Hayes-Lamb Motor Company at DeQueen, Arkansas, and made an ■ arrangement with said company to repair the same. After the repairs had been made, the automobile was delivered to Tucker, who failed to pay for the repairs. Hayes-Lamb Motor Company foreclosed its statutory lien as repairmen and obtained judgment against Tucker for $745, the value of the materials used and the labor done in repairing the car. In compliance with the terms of the statute, the car was sold to satisfy the amount of the lien, and Hayes-Lamb Motor Company became the purchaser at the sale. It claimed a superior lien in the car to the Commercial Credit Company, Inc. Hence this lawsuit.

      The case was fried before the circuit court sitting as a jury, which adjudged the issue in favor of the Hayes-Lamb Motor Company, and judgment was rendered accordingly. To reverse that .judgment the Commercial Credit Company, Inc., has duly prosecuted an appeal to this court.

      Collins & Collins and Rodgers & Rodgers, for appel-. lant.
    Lake, Lake & Carlton, for appellee.
   Hart, C. J.,

(after stating the facts). The defendant claims title tq the automobile by purchase at the sale foreclosing its lien as an automobile repairman under the provisions of an act of the Legislature, approved February 27, 1919, giving to automobile repairmen and other persons a lien on the production of their labor when any article is repaired by them, and for material furnished, and providing for the enforcement of such lien. The sections of the act are 6866-6874 of Crawford & Moses’ Digest. It will be noted that this act was passed by the Legislature before the sale of the automobile involved in this case was made and the chattel mortgage given to the seller to secure a payment of the purchase price.

Statutes giving liens for services in repairing personal property and purporting to make such liens superior to all others have been construed to create liens superior to previous chattel mortgages, even though the lien claimant has knowledge of the prior mortgage. Such statutes have been held to be constitutional, provided the prior chattel mortgage was taken subsequently to the passage of the statute, and the mortgagor has been allowed to keep possession of the mortgaged chattel. The reason is that, in taking such a mortgage, the mortgagee does so with the knowledge of the lien given by the statute, and by leaving the property, such as an automobile, in the hands of the mortgagor, impliedly consents that he shall make a contract for repairs which are necessary to preserve the property and which enhance its value. Corning Motor Co. v. White, 173 Ark. 144, 293 S. W. 46; Weber Imp. & Auto Co. v. Pearson, 132 Ark. 101, 200 S. W. 273, L. R. A. 1918B, 327; Crucible Steel Co. v. Polack Tyre & Rubber Co, 92 N. J. 221, 104 Atl. 324; Cattell v. Rehrer, 94 N. J. 292, 119 Atl. 384; and New Britain Real Est. & Title Co. v. Collington, 102 Conn. 652, 129 Atl. 780.

The right to a mechanic’s lien being entirely statutory, not only the right itself but the method of enforcing it must depend upon the statute. The statute was complied with in foreclosing the lien, and the question which has the superior lien depends upon the construction to be placed upon the statute. Section 6874 of the Digest provides that the lien shall take precedence over and be superior to any mortgage. It reads as follows:

“The lien herein provided for shall take precedence over and be superior to any mortgage or other obligation attaching against said property in all cases where the holder of such mortgage or other obligation shall permit such property to remain in the possession and he used by the person owing and bound for the amount thereof; provided, that the lien herein provided for shall be subject to the lien of a vendor of automobiles, trucks, tractors and all other motor-propelling conveyances retaining title therein for any claim for balance of purchase money due thereon; provided, further, that said lien shall not take precedence over a bona fide purchaser for value of any such automobile, truck, tractor and other motor-propelled conveyances without notice, either actual or constructive. ’ ’

It is the contention of counsel for appellant that a chattel mortgage given for all or a part of the purchase money of an automobile places the seller of the automobile in the same class under the statute as a seller retaining title for the balance of the purchase money.. We do not so construe the statute. It will be noted that the section quoted expressively reads that the lien provided for shall take precedence over and be superior to any mortgage attaching against the property in all cases where the holder of the mortgage shall permit the property to remain in the possession of'and to he used by the purchaser. It is true that the section contains a proviso that the lien shall be subject to the lien of a vendor of automobiles retaining title for any claim for the balance of the purchase money. If the framers of the law intended to place mortgagees, where a chattel mortgage is given for the purchase money, in the same class as conditional sellers, they should have so expressed themselves in the statute. The statute expressly states that the lien of the repairmen shall be superior to any mortgage. This would include mortgages given for the purchase money as well as other mortgages. The proviso excepts sellers of automobiles retaining title for any balance of purchase money. This language has often been construed by the courts, and has a definite and settled meaning. The lawmakers, having seen fit to except the seller of an automobile who retains title in himself until the purchase price is paid, and having failed to include holders of chattel mortgages for the purchase price in the exception, the courts are powerless to do so. It is our duty to construe the statute according to its terms, and, when we give the language used, its ordinary meaning, we are of the opinion that holders of chattel mortgages given for the purchase price are not the same as sellers who retain title to the automobile until the purchase price is paid.

Therefore the circuit court correctly found the issues in favor of the defendant, and dismissed the* complaint of the plaintiff. It follows that the judgment must be affirmed.


author: Wood, J.

text:
    Vaden v. State.
    Opinion delivered October 3, 1927.
    1. Homicide — sufficiency of evidence. — In a prosecution for murder, evidence held sufficient to sustain a conviction of voluntary manslaughter.
    2. Homicide — proof of instrument with which killing was done. — An allegation of indictment for murder, that deceased was killed with a blunt instrument, exact description of which was unknown to the grand jury, need not be proved where the undisputed evidence shows that death resulted from defendant’s striking deceased with an oak picket.
    3. Criminal law — testimony not objected to. — Admission of testimony as to which there was no objection at the time, or exception saved to ruling of the court thereon, held not to constitute error.
    4. Witnesses — credibility." — In a prosecution for murder, testimony that deceased had paid the house rent for certain witnesses who testified for defendant, held properly admitted for the consideration of the jury in determining the credibility of such witnesses.
    Appeal from Miller Circuit Court,- J. E. McCollum, Judge;
    affirmed.

      J. M. Carter and B. E. Carter, for appellant.

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

Tlie appellant was convicted in the Miller Circuit Court on a valid indictment charging him with the murder of one Lawrence Harris “by striking and beating him, the said Lawrence Harris, with an instrument, the exact description of said instrument being unknown to the grand jury.’’

It is unnecessary to set forth the testimony in detail. It suffices to say there was testimony from which the jury might have found that the appellant acted too hastily in killing the deceased. Appellant killed the deceased on Sunday night. On the Saturday night preceding appellant was in a car across the street from where the deceased had a store. Supposing that a negro woman by the name of Ada Lee Clark (who, the testimony tended to prove, was the paramour of deceased) was in the car with the '¡appellant, the deceased went out to the car armed with a pistol, and asked whether Ada Lee Clark was in the oar, and, on learning that she was not, he abnsecl the appellant and the woman, and stated that if the woman had been in the ear he intended to kill her and any one else in the car. There was no one in the car with the appellant. Appellant said nothing. The following night the appellant, with three other parties, at the request of one of the parties, Tom Sims, drove by Ada Lee Clark’s home. Sims stated to appellant that he owed the Clark woman $1.50. Sims got ont of the car and went upon the porch of Ada Lee Clark’s house, and knocked at the front door. Another woman, living in the house with the Clark woman, answered, and told Tom Sims not to come in the house. She asked Sims who was in the car, and, upon being informed that the appellant was in the car, she told Sims to go back and tell the appellant to get away from there, as the deceased was in the kitchen talking to Ada Lee Clark. Sims left the house and went to the car, and, just as he got to the car, he heard a lick, and saw the deceased and appellant by the side of the car. Sims saw appellant strike deceased, and deceased fell." Sims helped the deceased to rise, and started with him to Ada Lee- Clark’s house. She met them at the front steps, and requested Sims to take the deceased to his store. The deceased beckoned Ada Lee Clark with his hand to come to him. She went to him, and she and Sims started down the sidewalk with the deceased toward his store, and at this time the deceased gave Ada Lee Clark a pistol. She then called another negro man and asked him to help Sims take the deceased to his store, and she went back to her home with the deceased’s pistol.

According to the testimony of the appellant, while he was in his car on the night of the fatal rencounter in front of Ada Lee Clark’s house, when Tom Sims was talking to the other woman at the front door of Ada Lee Clark’s house, the deceased left the kitchen and went out of a south door and came to the ear where appellant was sitting, and, as he got near the car, appellant recognized him, and saw that he was coming to the car with Ms band in his pocket. Appellant jumped out, and, as he did so, his foot struck something. Appellant picked it up — it was a piece of oak picket. Appellant said, “I don’t want you to pull that gun on me,” and hit the deceased on the head, and, when deceased raised his arm,. he hit him again. At that time Sims had arrived, and said to appellant, “Don’t do that — get in the car and get away,” so appellant got in the car and left. Appellant was asked why he struck the deceased with the picket, and he stated that he was scared the deceased was g’oing to shoot him. “He came there like he was g'oing to shoot me — had his hand like he was drawing a gun.” Appellant saw something — he didn’t know whether it was a gun or not, as the deceased never got it out of his pocket. Appellant further stated that he did not know what the deceased was coming out there with — deceased had his hand in his pocket — appellant didn’t know whether he knocked him down on the bridge or not. When he last saw the deceased he was not flat on the bridge. It was shown that the deceased had an insurance policy on his life in favor of Ada Lee Clark. Appellant was asked if he had not been paying attention to Ada Lee Clark, and if he did not know that the deceased had $1,000 insurance on his life. Appellant stated he did not know that deceased had any insurance on his life in favor of Ada Lee Clark. Appellant, in answer to questions by counsel for the State, stated that the deceased pulled a gun on him the night before and threatened him, and that he (the appellant) did not feel good over it, but he didn’t say anything to the deceased. Appellant’s own testimony shows that he met the deceased on the bridge coming towards his car. “That’s where they had the fight.” Appellant stated that he met the deceased on the bridge, but he did not have anything* to do but get out of the car and straighten up. Appellant did not know when he jumped out of the ear that the stick was there. His foot just happened to strike it.

The State was permitted to prove by witness Ada Lee Clark, witness for the appellant, and also by Elzeta McKilliau, a witness for tlie State, tliat the deceased was paying their house rent.

After all the testimony was adduced, the court instructed the jury that the testimony to the effect that the deceased was paying the house rent for Ada Lee Clark and Elzeta MeKillian could be considered by the jury only for the purpose of testing the credibility of these witnesses. The court gave certain instructions at the instance of the State, to which rulings counsel for the appellant objected and duly excepted. • The court also gave certain prayers for instructions at the instance of the appellant, and refused certain other prayers. The jury returned a verdict finding the appellant guilty of manslaughter and fixing his punishment at imprisonment in the State Penitentiary for a period of seven years. The court entered judgment sentencing the appellant in accordance with the verdict, from which judgment is this appeal.

The appellant contends that there is no evidence to sustain the verdict, and that the judgment is excessive. The punishment for voluntary manslaughter is not less than two nor more than seven years’ imprisonment in the penitentiary. Section 2367, C. & M. Digest. There was evidence to sustain the verdict finding the appellant guilty of voluntary manslaughter. The jury might have found from the appellant’s own testimony that he acted too hastily in taking the life of the deceased. The jury were warranted in finding that the appellant voluntarily and unnecessarily engaged in the rencounter with Lawrence Harris which resulted in the death of Harris. It was purely the province of the jury to determine under the evidence the guilt or innocence of the appellant. In Bruder v. State, 110 Ark. 402, 161 S. W. 1067, we said: ‘ ‘ This court has held that, where a jury believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter.” McGough v. State, 119 Ark. 57, 177 S. W. 398.

Since tlie jury lias found the appellant guilty and fixed his punishment at the. maximum period of imprisonment provided by statute, we do not feel that the testimony is sufficient to justify our interference with the verdict of the jury in that respect. We therefore do not reduce the punishment.

The indictment charges that the appellant “feloniously did kill one Lawrence Harris, a human being, by striking and beating him, the said Lawrence Harris, with an instrument, the exact description of said instrument being unknown to the grand jury, against the peace and dignity of the State of Arkansas.”

The appellant contends that the verdict was contrary to the evidence, because the State failed to prove the above allegation of the indictment. The undisputed evidence by the appellant shows that he struck the deceased with an oak picket, and the undisputed evidence shows that this blow resulted in the death of the deceased. The case is ruled on this point by the case of Wells v. State, 151 Ark. 221-227, 235 S. W. 798-800, where we said:

“The indictment charged that the deceased was killed with a blunt instrument, the exact nature of which was unknown to the grand jurors. The contention that it was error not to require proof of this allegation cannot be sustained. The uncontradicted testimony at the trial showed that Trenz was killed with a blunt instrument. The testimony of appellant himself was to the effect that he struck Trenz with a stick. In view of the above undisputed evidence, it is manifest that the above allegation in the indictment was wholly immaterial, and should be treated as surplusage.” See also Rogers v. State, 136 Ark. 161, 206 S. W. 152, and other eases cited on this point in brief of the Attorney General.

Learned counsel for the appellant contend that the court erred in admitting the testimony of Ada Lee Clark and Elzeta McKillian to the effect that the deceased was paying rent on the house occupied by them. To this testimony of Elzeta McKillian, at the time it was admitted, counsel for the appellant made no objection and saved no exception to the ruling of the court in admitting

the same. Counsel for appellant objected to the testimony of Ada Lee Clark, which objection the court overruled, yet counsel for appellant did not except to the ruling of the court in overruling the objection. The ground of the motion for a new trial therefore, assigning as error the ruling of the court admitting the testimony of the above witnesses, cannot be sustained. In Clardy v. State, 96 Ark. 52-57, 131 S. W. 46-48, we said:

‘ ‘ The proper manner in which to make and preserve an objection to the introduction of testimony, is, first, to make the objection at the time the testimony is offered or to ask its exclusion at the time it is given, and to obtain a ruling of the court thereon, and then to except to an adverse ruling.” See also Warren v. State, 103 Ark. 165, 146 S. W. 477, Ann. Cas. 1914B, 698.

At the time the court instructed the jury that the testimony of Ada Lee Clark and Elzeta McKillian, to the effect that the deceased paid their house rent, could only be considered in passing on the credibility of the witnesses, the appellant did not object and did not except to the ruling of the court in so instructing the jury. It follows therefore, from the above authorities, that the court did not err in overruling the grounds of the motion for a new trial assigning as error the admission of the above testimony; and neither did the court err in limit,-ing the consideration of such testimony “for the purpose only of testing the credibility of these witnesses.” But, even if the objection and exception to the ruling of the court had been properly made and saved, still the testimony was proper for the consideration of 'the jury in determining the credibility of these two witnesses. Hollinsworth v. State, 53 Ark. 387, 14 S. W. 41.

Counsel for the appellant do not point out in their brief any alleged errors in the rulings of the court in the granting and refusing prayers for instructions, but they say they would do so if the appellant had the means of printing a more elaborate brief. We have examined the instructions given at the instance of the State, and the prayers for instructions granted as well as those refused at- the instance of the appellant, to determine whether the court erred in the granting and refusing of prayers for instructions prejudicial to the rights of the appellant in the trial of the cause. It would serve no useful purpose, and would unduly extend this opinion, to set out and comment upon the charge of the court. We have examined it carefully, and it suffices to say that the charge was fair, full and correct. The charge was in conformity with the law in such cases, as same has been often announced by this court.

The judgment is correct, and it is therefore affirmed.


author: Smith, J.

text:
    Simpson v. Martin.
    Opinion delivered October 3, 1927.
    1. Navigable waters — accretion — burden op proof. — A landowner, claiming land as an accretion through a change in the course of a navigable river, has the burden of proving that land shown by the original Government survey, the patents from the United States to the State of Arkansas, and from the State to appellee’s predecessors in title, disappeared and later formed as an accretion to his land.
    2. Appeal and error — conclusiveness op chancellor’s finding.— On appeal from a decree based on a finding'of fact made in the chancery court, the Supreme Court tries the case de novo and will affirm the decree unless the chancellor’s finding is found to be contrary to the preponderance of the evidence.
    3. Navigable waters — -finding as to accretion. — In a suit involving the title to certain lands due to the change in the course of a navigable river, the finding of the lower court that the land was not an accretion held not against the preponderance of the evidence.
    4. Adverse possession- — sufficiency of evidence. — Evidence held not to-establish title by adverse possession to land claimed as an accretion through a change in the course of the river.
    Appeal from Pulaski Chancery Court; John E. Mar-tillean, Chancellor;
    affirmed.

      J. A. Sherrill, for. appellant.

      Buzbee, Pugh & Harrison, George M. Heard and Doivnie & Schoggen, for appellee.
   Smith, J.

Four suits were filed in the Pulaski Chancery Court, involving the lands here in question, which were consolidated for trial. The court below rendered a decree in which the rights of the respective litigants were adjudged, and this appeal is from so much only of that decree as adjudicated the rights of Lee, as curator of certain minor heirs, and those of H. G. Martin. These suits involved the title to a portion of the southwest quarter of section 36, township 1 south, range 11 west, and a portion of the north half of section i, township 2 south, range 11 west.

Appellant Simpson has a record title to a tract of land described as the south half of section 36, township 1 south, range 11 west, north of the river. Appellee Martin has a record title to a tract of land described on the plat of the original Government survey as the fractional southeast quarter on the right bank of the river, section 36, township 1 south, range 11 west, and the minor heirs, for whom appellee Lee is curator, have a record title to certain land in section 1, township 2 south, range 11 west.

All these tracts of land are fractional parts of the sections in which they are located, and are made fractional by the fact that, at the time of the original Government survey, the Arkansas River flowed east through the south half of section 36, township 1 south, range 11 west, and made a sharp bend as it flowed into and through section 31, township 1 south, range 10 west, and section 6, township 2 south, range 10 west, and.flowed from the last mentioned section in a southeasterly course through section 1, township 2 south, range 11 west.

The land owned by appellant Simpson was described in the patent from the State and the other muniments of title through which he claims as the southeast quarter of section 36, north of the river. It appears therefore that, at the time of the original Government survey, the land to which appellant Simpson has the record title was north of the Arkansas River, and the lands to which appellees have a record title were south of that stream.

At some time after this survey was made the river changed its course, and now flows in a southeasterly direction through section 1, township 2 south, range 11 west, and section 6, township '2 south, range 10 west, and does not now touch either section 36 or 31 above referred-to at any point, but flows south of both these sections.

It is the contention of appellant Simpson that the south bank of the river gradually caved and washed away until the bend of the river had entirely disappeared, and that, as this was done, the north bank gradually moved southward by the accretions to that shore, and that the original lands to which appellees had a record title gradually disappeared and became a part of the channel of the river, until finally the accretions to appellant’s lands occupied the area which once comprised the land of appellees, together with other lands contiguous thereto and south thereof, all of which appellant Simpson claims as an .accretion to his land.

Upon the authority of the case of Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317, appellees concede that appellant would have title to the land in controversy if it were shown that the land in dispute formed as an accretion to 'appellant’s land, as the river changed its course in the manner stated long before the passage of act No. 127, approved April 26, 1901 (Acts of 1901, page 197), which appears as § 6783, C. & M. Digest, or the decision of this court in Wallace v. Driver, supra.

In this respect the instant case is identical with that of Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028, in which case the act of 1901 is quoted, and it may be said here, as it was there, that the rights of the parties became vested prior to the passage of this act, and it is unnecessary to consider what the effect would be on the titles of these litigants had the facts above recited occurred subsequent to the decision in the Driver case and the passage of the act of 1901.

In .addition to appellant’s claim to the land in litiga - iion as an accretion to his own, he also claims title thereto by adverse possession.

Appellees deny tlxat these lands were an accretion to appellant’s land. On the contrary, they assert their land never disappeared through the action of the river, but has remained as original land at all times since the Government survey, which was made in 1826, ■ and, in addition, they say they have title to certain lands also involved in this litigation a-s an accretion to their own land. They also say that, at some time subsequent to 3 826, the river changed its course as the result of an avulsion or cut-off, and the court below sustained this contention, and entered a decree accordingly, and, upon this finding of fact, apportioned to appellees and certain other riparian owners the accretions to lands which are south of the river according to the survey of 1826. The apportionment of this accretion was one of the subjects involved in the cases consolidated with the cases here appealed, but, as the parties to those suits have not appealed, we need not consider this feature of the case.

The appeal of the appellant Simpson does raise the question of the correctness of the court’s finding of fact, but the appeal presents no other question than this question of fact, except only the question of law as to the burden of proof concerning the manner in which the river changed its course.

The question for decision may therefore be stated as follows: Did the river leave the bend shown by the survey of 1826 by the process of accretion, or by an avulsion or cut-off?

In a case presenting many issues of fact similar to the present case, the Supreme Court of Tennessee, in the case of State v. Muncie Pulp Co., 119 Tenn. 47, 104 S. W. 437, held (to quote a syllabus), that “the presumption is in favor of the permanency of boundary lines, and the burden of proof is on the one averring' that the location of the line has 'been changed by the action of the forces of nature.” See also 9 C. J. 271, and Bissell v. Fletcher, 27 Neb, 582, 43 N. W. 350.

Inasmuch as appellees are in possession of land shown to be land by the original Government survey, the patents from the United States to the State of Arkansas, and from the State to appellees’ predecessors in title, we think the burden was upon appellant to show that the land described as such disappeared and later formed as an accretion to his own land, and this would be true whether he was the plaintiff or the defendant in an action in which that question arose.

Appellant calls attention to the decision of this court in Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028, which •was a suit in ejectment to recover possession of a tract of land described as “the southwest fractional quarter (west of Arkansas River), section 31, township .1 south, range 10 west, containing, according to the Government survey, 15.61 acres.”

The land just described is adjacent to the land here claimed by appellee Martin, being separated from it by the range line between range 10 west' and range 11 west. In the former case the plaintiff claimed that the land described remained as original land as shown by the Government survey, and that the river cut across the bend, so that the land was then on the opposite bank, whereas the defendant claimed the land as an accretion to other lands owned by him.

That case was a suit at law, and the court there found for the defendant, and adjudged accordingly. In other words, the circuit court found that there had been no avulsion, whereas the decree in the instant case is based upon the finding- that there was an avulsion. Appellant insists that, inasmuch as we affirmed the judgment of the circuit court on the former appeal, we should reverse the decree of the chancellor in the present appeal, for the reason that the land involved in the two cases is adjacent, and must necessarily have the same history. This does not necessarily follow, notwithstanding the findings are inconsistent. The parties are not the same, nor is the subject-matter of the litigation identical, although it is similarly situated.

It was there insisted, as the former-opinion reflects, that the judgment of the circuit court was not sustained by the testimony, and that the finding of the circuit court contravened the physical facts, and the opinion recited that we would be required to so hold and reverse' the judgment of the circuit court if the testimony .of the appellant in that case was treated as undisputed. This téstimony'was not undisputed, and we did not pass upon its truthfulness. It was our function only to pass upon the legal sufficiency of the testimony. In the discharge of that duty we held the testimony was legally sufficient to support the finding there made, that the land in^litigation was an accretion. In the discharge of our duty in this respect we affirmed the judgment of the circuit court, as there was sufficient legal testimony to support the finding made.

In this appeal, as in the former case, the testimony is sharply conflicting. The present appeal is from a decree based upon a finding of fact made in the chancery court, and we now try the case de novo, and it is our duty to affirm the decree, unless we conclude that the chancellor’s finding is contrary to the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.

The testimony in the record now before us is both voluminous and conflicting, and much of it is identical with or similar to the testimony offered in the case of Bush v. Alexander, supra, and no useful purpose would be served in setting it out in detail.

The case for appellant rested largely on the testimony of certain civil engineers, who testified as experts, and that of a witness named Allen, whose personal knowledge of the land extended further back than that of any other witness who testified in the case. Allen testified that he had been familiar with the land since 1868, and that there had been no cut-off in the river since he had known it. This testimony merely shows that, if there was a cut-off, it occurred prior to 1868. ■

According to the testimony of the engineers,. the land is an accretion, but these witnesses conceded that this is not true if there is timber on the land as much as seventy-five to ninety years of age, and the testimony on the part of appellees is to the effect that there is timber on the land at least one hundred years old.

Appellee Martin, who is a civil engineer, testified that he was also an expert in determining the age of trees, and that he located the land in 1872, while -making a- survey for the Iron Mountain Railroad, and that his attention was particularly drawn to this land by the circumstance that he expected to find it on the south side o.-f the river, where the, field-notes of the Government survey_ showed it to be, whereas the river was then flowing to the south and west of the land, and that he then noticed large timber growths of cottonwood, gum, ash and sycamore trees.

After this litigation was begun, M-artin, and other witnesses who claim to be timber experts, 'counted the rings in several old stumps, and counted many rings in one old stump which indicated the age of the tree at the time it fell was at least seventy-five years. These witnesses also testified that there were standing trees some of which were five feet in diameter, and that the deep crevices in the bark indicated lan age of at least one hundred years. These witnesses further testified that, while a tree is growing its bark is smooth, but, after it obtains its growth, the bark thickens, and is characterized by deep indentations, and that there were trees with indentations which indicated that they had reached a great age — as much as a hundred years.

There was testimony to the effect that these cut-offs frequently occurred in the river, and, when they did, occur, the river changed its cpurse suddenly, and that a lake was always left where the former bend in the river had been. The engineers who testified on behalf of appellant gave, as one of the reasons for their opinion that there had been no avulsion in this case, the fact that there was no lake where the former bend in the river-ha.d been. But witnesses on behalf of appellees testified to the fact that there had been a lake at this place, although it had practically filled up, and had been drained by the digging of a drainage ditch.

Upon a consideration of all the testimony, we have concluded that the finding of the court below, that the land was not an accretion, is not against the preponderance of the evidence.

Upon the question of the title by adverse possession it suffices to say that the testimony shows only the erection of certain fences across portions of the land, but that the land was not inclosed, and certainly not for a period of seven years.

As the decree does not appear to be against the preponderance of the evidence, it is affirmed.


author: Humphreys, J.

text:
    McDougald v. Special School District No. 43.
    Opinion delivered October 3, 1927.
    Schools and school districts — ratification of employment of teacher. — A teacher discharged before expiration of the term of employment under a written contract, signed by all the directors of the school district except one, wheré the contract was subsequently ratified by all the directors, held entitled to the agreed salary for remainder of the term.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      Marsh, McKay & Marlin, for appellant.

      McNalley & Sellers, for appellee.
   Humphreys, J.

Appellant brought suit in the circuit court of Union County, Second Division, against appellees to recover a balance of $375 alleged to be due her under the following written contract, to-wit:

“State of Arkansas, county of Union.
‘ ‘ This agreement between Gf. F. Dougal, J. R. G-reen, J. H. Norris, Gr. W. Dougal and E. J. Dougal, as directors of the School District No. 43, in the county of Union, State of Arkansas, and Miss Lola MoDougald, a teacher who holds a license in sáid district,'is as follows:
“The said directors agree, upon their part, in consideration of the covenants of said teacher, hereinafter contained, to employ the said Lola MoDougald to teach a common school in said district for the term’ of six months, commencing on the 27th day of July, A. D. 1925, to pay therefor, in the manner and out of the funds provided by law, the sum of one hundred and twenty-five and no/10.0 dollars ($125) for each school month. Said directors further agree that all steps required or allowed by .law to be taken by said district and its officers to secure the payment of teachers’ wages shall he so had and taken promptly, and the requirements of the law in favor of the teacher complied with by said district. The teacher on- her first part agrees to keep said school open eight hours each school day; keep carefully the register required by law; preserve from injury, to the utmost of her power, the district property; give said school her entire time and best efforts during school hours, use her utmost influence with parents to secure a full attendance of scholars, .and generally comply with all requirements of this State in relation to teachers, to the best of her ability. It is further agreed that neither party will break 'or terminate this contract unless by mutual consent of both parties to the contract. Signature: F. Gr. Dougal, J„ R. Green, H. J. Norris, G. W. Dougal, E. J. Dougal, directors. Lola McDougald, teacher.”

It was alleged in the complaint that, after appellant taught the school for three months and received pay therefor, appellees discharged her without cause, and refused to allow her to teach for the remainder of the term or to pay her for the unexpired tim.e, although she was unable to procure employment elsewhere after mak-' ing diligent effort to do so.

Appellees filed an answer, denying the validity of the contract, and interposing the further defense that they discharged appellant because she was incompetent to teach the eighth grade, and because she could not maintain order and discipline in the school.

The cause was heard upon the pleadings and the testimony introduced by appellant, ;at the conclusion of which each party moved for an instructed verdict, whereupon the court instructed the jury to return a verdict for appellees upon the return of which he rendered a judg.ment dismissing appellant’s complaint. Appellant has duly prosecuted an appeal to this court.

Appellant introduced the contract, and testified, in substance, as follows:

That, at the regular annual school meeting in 1925, she met all of the directors except E. J. Dougal, and entered into ¡a contract with them to teach the school for six months, which was to begin when the new school building was completed, at which time the contract introduced in evidence was reduced to writing, executed and delivered to her; that the names of the five directors attached to the contract were signed to it by E. J. Dougal; that she taught the school for three months, and.received pay for the months taught at the rate of $125 per month; that she had a first grade certificate, and was competent to and did teach all of the grades taught in the public schools, and maintained order and discipline in the school; that the directors discharged her at the expiration of three months without cause, claiming* that she was inefficient and unable to maintain discipline in, school.

The trial court directed a verdict for appellees upon the theory that the written contract was ineffective because not made pursuant to a valid agreement previously entered into; and because the name of director Alfred West was not signed to it, and because the signatures of the directors were signed by E. J. Dougal, without an affirmative showing that he had authority to sign their names; and because, under authority of Bald Knob Special School District v. McDonald, 171 Ark. 72, 283 S. W. 22, handed down by this court on May 17, 1926, the ratification only applied to the part of the contract performed and did not extend to the entire contract. The case relied upon by the court was dealing with an oral contract which the directors had no right to make in the beginning, and not a written contract which they had la right to make; hence the rule of non-ratification announced therein was inapplicable to the instant case.

The undisputed facts in the instant case revealed that the contract was in writing, and that the only director whose name was not signed to it subsequently sent his children for a time to the school. The directors paid her for the time she taught under the written contract, in accordance with its terms. It is unnecessary to consider or discuss the invalidity of the written contract, for, according to the undisputed evidence, it was ratified by ¡all the directors, under the doctrine of ratification announced in the cases of Dell Special School Dist. No. 23 v. Johnson, 129 Ark. 211, 195 S. W. 373, and Davis v. White, 171 Ark. 385, 284 S. W. 764.

On account of the error indicated the judgment is reversed, and judgment is directed to be entered herein in favor of appellant in the amount of $375, interest, and costs.


text:
    St. Louis-San Francisco Railway Company v. Oxford.
    Opinion delivered October 3, 1927.
    1. Removal op causes — separate, causes op action. — The rule requiring' the removal to the Federal court of cases constituting one cause of action, split into the separate amounts, less than necessary to give such court jurisdiction, pertains when personal property is damaged, lost, or destroyed through another’s negligence, hut not so when two or more persons are killed through the negligence of another, and the cause of action for each death inures to the same parties.
    2. Removal op causes^-consolidation of cases. — For the purpose of the right to removal to the Federal court, the consolidation for trial of separate causes of action against a railroad company for the death of four persons did not have effect of merging them into a single cause of action, where the identity of each cause of action was maintained throughout the trial.
    3. Death — Recovery ry minor son for mother’s death. — An eight-year-old boy, whose parents, .brother and sister were killed in a railroad crossing collision, leaving him the only heir and next of kin of both parents, could recover for the mother’s death, under Crawford & Moses’ Dig., § 1075.
    4. New trial — bias, of jurors. — To render a fair and impartial verdict, jurors’ minds must be unbiased and free from prejudice.
    5. New trial — disqualification of juror. — The juror who was told the details of a collision, causing the death sued for, in several conversations with eye-witnesses, was so disqualified as to destroy the integrity of the trial.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keck, Judge;
    reversed.

      E. T. Miller, E. L. Westbroohe, Jr., and E. L. West-broohe, for appellant.

      Harrison, Smith & Taylor, for appellee.
   Humphreys, J.

These are appeals from five judgments .rendered in the circuit court of Mississippi County against appellant, four of them for $2,500 each in favor of Florence Oxford, for the death of her four minor children, resulting from a collision of .appellant’s train with an automobile in which the children were riding, through the alleged negligence of appellant’s employees in operating the train, and one in favor of Theodore Oxford .for $1,500, for the death of his father and mother and injuries received by himself in the same collision. The separate judgments were rendered upon five separate complaints and answers in response to five separate verdicts returned in a single trial of the five separate cases, under an order of the trial court consolidating them for the purpose of expediting and saving time and costs, pursuant to the provisions of § 1081 of Crawford & Moses’ Digest, which is as follows:

“When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may he conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”

A motion for a new trial was filed in each case, and, when overruled, separate appeals were prayed and granted, but, by order of court and agreement of the parties, one hill of exceptions was prepared and filed as part of the record to be used on appeal in each case. After the several suits were filed and service obtained, appellant filed a petition and bond in due form in each of Florence Oxford’s cases to transfer them to the Federal court, because of a diversity in citizenship, and upon the alleged ground that said appellee had split her cause of action to reduce the amount for the fraudulent purpose of preventing a removal. The court overruled each petition, over the separate objections and exceptions of appellant. After the trial court consolidated the four cases with the Theodore Oxford case for the purposes set out above, appellant again filed a.petition and bond for the removal of the Florence Oxford cases to the Federal court, for the reason that the consolidated cases constituted one suit for $12,000. The court overruled the motion, to which appellant entered an objection and saved an' exception. The grounds of negligence alleged in each complaint and denied in each answer are as follows:

“ (1) . Failing to keep a lookout as required by law. (2) Failing to give warning of the approach of the train by sounding the whistle and ringing the bell. (3) Failing to signal for said crossing as required by law. .(4) Failing to stop the train after discovering the peril of deceased-. (5) Operating the train at a dangerous and excessive rate of speed over- the crossing and in nearing the station.”

A supplementary motion for a new trial was filed, assailing the integrity of the trial on account of the alleged disqualification of one of the jurors, in part as follows:

“Defendant (appellant), for a further ground upon which the verdict of the jury should be set aside and' defendant (appellant) be granted a new trial, is that' one Ira Crawford was selected as a juror was selected to try this cause of action. While being examined touching his qualifications as a juror, he stated he knew nothing of the facts of the case, had not talked to any one else who knew the facts, and, if chosen as a juror, he would try the case without bias or prejudice. As a matter of fact, ’ defendant (appellant) charges that the said Ira Crawford, on the evening following* the collision, the subject-matter of this suit was' discussed by him with an eye-witness to the said collision, land interrogated said eye-witness, Mrs. Maggie Hawkins, who told the said Ira Crawford the details of the collision as witnessed by her.' Later, lat night, about April 20, 1926, the said Ira Craw-' ford 'again visited the said Maggie Hawkins at her home, at which time he talked over the details of said collision with the said Maggie Hawkins. The said Ira Crawford made two other visits, between his first and last visit above mentioned, to the home of Maggie Hawkins for the purpose of soliciting and receiving detailed information of the said.collision from said Maggie Hawkins.” The allegations relative to the disqualification of the juror were supported by the affidavits of Clarence and Maggie Hawkins and Andrew and Lucy Smith. The attorneys for appellant made and filed affidavits that the matters and things set out in the affidavits of the Hawkins and Smiths were unknown to them and all of them until after the submission of the case to the jury, and that they never obtained definite information until after the verdicts were returned.

Appellant seeks a reversal of the judgments because the trial court overruled its motion to remove Florence Oxford’s four cases to the Federal court. It contends that the four cases were in fact one cause or right of action split in four amounts of $3,000, less than the amount necessary to give the Federal court jurisdiction. The rule contended for by appellant pertains when personal property is damaged, lost or destroyed through the negligence of another. St. Louis & San Francisco Railroad Co. v. Davis, 157 Ark. 27, 247 S. W. 53. Not so “where two or more' persons are killed through the negligence of another, and the cause of action for the death of each inures to the same parties.” Payne v. Moore, 126 Miss. 693, 89 So. 225; King v. Ray Co., 126 Ga. 794, 55 S. E. 965; So. Ry. Co. v. King, 217 U. S. 524, 30 S. Ct. 594, 54 L. ed. 868.

The consolidation of the causes for the purpose of trial only did not have the effect of merging the separate causes of action into a single cause of action. The identity of the separate causes of action was maintained throughout the trial. The complaint, answers, verdicts, judgments and motions for a new trial were all separate.

Appellant also seeks a reversal of the judgments because the trial court refused to instruct the. jury as follows in the Theodore Oxford case: “You. are instructed that Theodore Oxford cannot, even if the defendant was negligent, recover for the death of his mother, for the reason that his right vests in the father or husband only, and does not survive the father or husband.”

Section 1075 of Crawford & Moses’ Digest vests the right of action in children of parents who have been killed through the negligence of others. In the instant case the father, mother, brother and sister of Theodore Oxford were killed in the collision, leaving Theodore, an eight-year-old child,'the only heir and next of kin .of both his father and mother. Of course a child of tender age must necessarily suffer pecuniary loss if deprived of the care and association of his mother.

Appellant also seeks a reversal of the judgments because the trial court overruled the last ground of its' motion for a new trial, to the effect that the juror, Ira Crawford, was disqualified to act. The evidence fully sustains. the charge that the juror was a partisan of appellees: In order to render a fair and impartial verdict, jurors’ minds must be unbiased and free from prejudice, else the stream of justice will be impure. Equal and exact justice cannot be administered to all save by impartial minds. In the instant case the juror’s activity in behalf of appellees revealed a condition of mind clearly precluding him from sitting in judgment on the case. He was wholly and entirely disqualified, and his disqualification destroyed the integrity of the trial. The verdicts and judgments will have to be reversed for this reason, if no other.

The reversal of the judgments will, eliminate the necessity of considering and discussing the alleged exces-siveness of the judgment in favor of Theodore Oxford, and, as there must be a remand of the causes for a new trial on account of the error indicated, we deem it inappropriate to discuss the sufficiency of the testimony to support the verdicts and consequent judgments. There may be additional testimony on a new trial of the cause.

The judgments are reversed, and the causes are remanded for a new trial.


author: Humpheeys, J.

text:
    Ruff v. Womack.
    Opinion delivered October 3, 1927.
    1. States — authority to lend money to school districts. — Acts 1927, p. 358, §§ 2, 3 and 4, authorizing the State to borrow money from permanent school fund on non-interest-bearing bonds, and by §§ 5 and 9, authorizing the State Board of Education to loan money thus „ obtained to needy school districts, is not contrary to Const., art. 16, § 1, forbidding the State to loan its credit for any purpose whatever, since the State merely uses its credit for a proper purpose.
    2. States — assuming debts of corporation. — Acts 1927, p. 358, providing that the State shall borrow money from the permanent school fund, and that the State Board of Education may loan money obtained to school districts on security, even if authorizing the State to assume the debts of school districts, is not contrary to the Const., art. 12, § 12,. prohibiting the State from assuming the debts of any county, town or other corporation, the corporations referred to being private corporations or those engaged in private enterprises.
    3. Schools and school districts — diversion of school money.— Acts 1927, p. 358, providing that the State shall borrow money from the permanent school fund, made up largely of proceeds of the sales of sixteenth sections, and that the State Board of Education may loan moneys obtained to needy school districts, is not contrary to Const., art. 14, § 2, providing that no moneys belonging to the State for the benefit of schools shall be used for other than their respective purposes.
    4. Schools and school districts — authority to districts to vote sinking funds. — Acts 1927, p. 365, § 6, authorizing electors of school districts to vote a sinking fund to be levied each year until the money borrowed is repaid, is not contrary to the Const, art. 14, § 3, as amended Oct. 5, 1926, providing that the General Assembly may authorize school districts to levy by vote of electors a tax not exceeding 18 mills on the dollar in any one year.
    5. Constitutional law — discrimination. — The Revolving Loan Fund Law, Acts 1927, p. 358, empowering the State Board of Education to lend money to some school districts and to refuse to loan to others, and to charge some districts greater rate of interest than others, is not unconstitutional because discriminating, in view of Crawford & Moses’ Dig., §§ 8993, 8999.
    6. Schools and school distRicts — validity of Revolving loan fund law. — Acts 1927, p. 358, providing that the State shall borrow money from the permanent school fund, formed largely by selling land granted to townships for schools by the Federal Government, and that the State Board of Education may lend money so obtained to needy school districts, is not invalid as freeing the State from the obligation to invest the money received by the sale of lands granted to the townships in a productive fund; the State being the sole judge of .the best method of carrying out the purposes of the grant, so long as the proceeds are used for school purposes, it being invested in a productive fund.
    7. Constitutional law — delegation of legislative power. — The Revolving Loan Fund Law providing for the sale of State bonds by the State Debt Board, for the purpose of borrowing money from permanent school fund, and for lending the money obtained to needy school districts by the State Board of Education, is not invalid as delegating legislative powers to either of these boards, as the power conferred is merely that of enforcing the •law after making investigations.
    Appeal from Pulaski Chancery Court; Frank II. Dodge, Chancellor;
    affirmed.

      William L. Baugh, Jr., for appellant.

      H. W. Applegate, Attorney G-eneral, John II. Gold-well, Assistant, and Utley, Hammock & Clark, for appel-lee.
   Humpheeys, J.

This is an appeal from the decree of the chancery court of Pulaski County sustaining the demurrer to and dismissing appellants’ complaint against appellees, which sought to permanently enjoin them from taking any steps or doing anything looking to the enforcement of act No. 119 of the General Assembly of 1927, known as the revolving loan fund law, upon the g'round that said act is void.

The purpose and intent of the act in question is to create a ’revolving loan fund to be borrowed from the permanent school fund and loaned to needy school districts, to repair, erect and equip necessary school buildings, and to pay outstanding indebtedness on buildings already erected and equipment already purchased. The act is lengthy, and we deem it unnecessary to set it out in order to determine the questions involved on the appeal. Section 2 of the act provides that the State.shall sell its own bonds and use the proceeds to discharge its debt to the permanent school fund. Section 3 provides that, immediately after the cancellation of so much of the State’s debt to the permanent school fund as can be retired by the proceeds of the sale of bonds authorized by § 2, the State shall immediately reborrow from the permanent school fund on new non-interest bearing State bonds for the purpose of creating said revolving loan fund. The same arrangement is made in § 4 of the act for the use of the cash on hand to the credit of the permanent school fund the first of July in each year. Section 5 of the act empowers the State Board of Education to make loans out of the revolving fund to needy school districts, under certain restrictions. Section 9 provides that loans made to school districts shall be secured by the bonds of the district which does the borrowing, the whole debt of the borrowing- school district to be secured by mortgage on its physical property, together with the pledge of the sinking fund created for the purpose of paying the loan and interest.

The first reason alleged and urged in support of the invalidity of the act is that it authorizes the State to lend its credit to school districts which secured loans thereunder, contrary to § 1 of article 16 of the State Constitution. The constitutional inhibition is that the State shall not lend its credit for any purpose whatever. There is nothing in this inhibition to prevent the State from using its credit for proper purposes. If the State could not use its credit for governmental purposes, a situation might arise where it could not function. In considering this section of the Constitution, our court has sanctioned the right of the State to borrow money to pay obligations incurred by governmental agencies, as well as money with which to construct a highway system. Hayes v. McDaniel, Treasurer, 130 Ark. 52, 196 S. W. 934; Bank of Commerce v. Huddleston, 172 Ark. 999, 291 S. W. 422; Bush v. Martineau, ante p. 214. Certainly, if it can be said that the construction and maintenance of highways throughout the State is a proper purpose for which the State may use its credit, it may be said, with equal propriety that the education of the children of the State is also a governmental purpose for which the State may use its credit. In fact, article 14 of our Constitution recognizes the importance of the education of the young children of the State, and imposes the duty upon the Legislature to provide for a public school-system. Section 1 of said article is as follows:

“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”

The education of the young people of the State, then, is distinctively a governmental and proper purpose for the use of the State’s credit. In using its credit to obtain money to lend to needy school districts for the purposes mentioned in said act, is not in any sense lending its credit.

The next reason alleged and urged in support of the invalidity of the act is that it authorizes the State to assume and pay debts which are prohibited under article 12, § 12, of the State Constitution. That section prohibits the State from assuming or paying- the debts or liabilities of corporations unless such debts or liabilities shall have been created to repel invasion, suppress insurrection, and to provide for the public welfare or defense. If reborrowing the permanent school fund on non-interest bearing bonds of the State for the purpose of lending the money to needy districts upon security could be characterized as assuming the debt of needy school districts, the prohibition would have no application to school districts. Corporations referred to in the section are private corporations, or corporations engaged in private enterprises. Bank of Commerce v. Huddleston, and Bush v. Martineau, supra.

The next reason alleged and urged in support of the invalidity of the act is that it violates § 2, article 14, of-the Constitution of the State, which is as follows:'.

“No money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.”

The contention is that the permanent school fund is made up largely of proceeds of the sale of the sixteenth section lands which were granted by Congress and accepted by the State for the use and benefit- of the inhabitants of the townships in which said sections were situated, and that in providing that the fund may be loaned to needy school districts indiscriminately constitutes a diversion of the fund and violates said section of the Constitution. The question was settled adversely to the contention of áppellant by this court in the case of Sloan v. Blytheville Special School District, 169 Ark. 77, 273 S. W. 397, in which statutes were upheld as constitutional directing, that the funds arising from the sales of the sixteenth section school lands be credited to the permanent school fund of the State rather than to the fund of the -school district in which the sixteenth section was situated. .

The next reason alleged and urged in support of the invalidity of the act is that it violates the eighteen-mill school tax amendment to the State Constitution, which is as follows:

“The General Assembly shall provide by general laws for the support of common schools by taxes, which shall never exceed in any one year three mills on the ■dollar on the taxable property in the State, and by an annual per capita tax of one dollar, to be assessed on every male inhabitant of this Stale over the age of twenty-one years. Provided,..that the General Assembly may, by general law, authorize school districts to levy by-a vote of the qualified electors of such districts a tax not to exceed eighteen mills on the dollar in any one year, for the maintenance of schools, the erection and equipment of school building's and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”

The contention is that article 14, § 3, of the Constitution, as amended October 5, 1926, contemplates an annual vote and tax levy, whereas § 6 of act 119 authorizes the electors of the school district in their vote, in order to apply for a loan, to vote a sinking fund to he levied for collection each succeeding year until the money borrowed by the district from the 'revolving loan fund, together with all interest thereon, shall be paid. We find no prohibition in the amendment (against the Legislature authorizing the electors in school districts to vote a continuing levy. The prohibition is that the tax shall not exceed eighteen mills on the dollar in any one year.

The next reason alleged and urged in support of the invalidity of the act is that it is discriminating in that it. empowers the Arkansas Board of Education arbitrarily to. grant aid to some districts and to withhold it from others, and to charge one district a greater rate of interest. than it charges another. We find nothing in the Constitution inhibiting. the Legislature from conferring this power upon the State Board of Education. Really there is no discrimination, because the income or interest derived from the loans to the several needy districts must be placed in the common school fund for equal distribution to the school children of the State per capita, as directed in §§ 8993 and 8999 of Crawford & Moses’ Digest, with the exception of a very small per cent, set aside for carrying the act into effect.

The next reasons alleged and urged in support of the invalidity of the act are that it frees the State from the oblig’ation in the grant of the sixteenth section lands to invest the proceeds thereof in some productive fund, and authorizes the State to make a profit on the permanent school fund. Neither contention is tenable. Under the rule announced in the Sloan' case, .supra, the State is the sole judge of the best method of executing the grant, as long as it uses the proceeds for school'purposes. But, aside from this rule, we think lending the principal of the permanent school fund through the route of the -revolving school loan fund on secured interest-bearing bonds amounts t'o an investment thereof in a productive fund in full compliance with the grant. We do not agree with appellant’s interpretation of the act to the effect that it enables the State to make a profit on the permanent school fund.. It is true that the act authorizes the State to substitute its own - bonds for the permanent school fund in order that same may be converted into a revolving loan fund, but the act authorizes the State Board of Education to lend the revolving loan fund thus created to needy school districts upon well secured interest-bearing bonds. The interest derived therefrom, less a small per cent, for the administration of the fund, must be paid, under the provisions of the act, into the common school fund for distribution per capita among the schoolchildren of the State.

In view of wha.t we have said, we think there can be nothing in the contention of appellant to the effect that act 119 makes a gift of the permanent school fund to the various school districts, so we pass that objection without further comment.

The nest and last reason alleged land urged in support of the invalidity of the act is that it constitutes a delegation of legislative powers to the State Debt Board and the State Board of Education. The power or authority conferred upon these State agencies by the act in question is one of enforcement of law after making certain investigations, and is not a delegation of legislative powers. Howard v. State, 154 Ark. 430, 242 S. W. 818.

No error appearing, the decree is affirmed.

Kibby, J., dissents.


author: Kirby, J.,

text:
    Snerly v. Stacey.
    Opinion delivered October 3, 1927.
    Mortgages — ¡future crop. — 'Where the owner of land mortgaged the crop to be produced thereon, but conveyed the land before a crop was planted, and the crop subsequently grown thereon was planted by the grantee’s tenant, the former owner’s mortgagee acquired no interest in such crop by virtue of his mortgage, since the mortgagor could create no lien on property beyond his interest therein.
    Appeal from Arkansas Chancery Court, Northern District; H. B. Lucas, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    This appeal is prosecuted from a decree holding a mortgage given by the owners of the land to the Arkansas Light & Power Company for current furnished for pumping water into pools and containers on the field for raising a crop of rice, entitled to priority of payment out of the crop produced over a prior mortgage given by Bullock, the then owner of the land, of one-third of the rice'crop to be produced thereon; the maker of the first mortgage to Snerly having conveyed the lands to the power company’s mortgagor before any crop was planted thereon.
    There is no real dispute about the facts as found by the chancellor. It appears that, prior to September 10, 1924, A. L. Bullock owned two rice farms in Arkansas County, one in section 34, township 2 south, range 5 west, and the other in section 14, township 2 south, range 5 west, upon which he had given to the appellant, Snerly, a mortgage securing the payment of a promissory note for $17,000. On September 10; 1924, he gave appellant a chattel mortgage on one-third of'all the rice to be grown on the farms in the year 1925, as additional security on the payment of said debt. On the 25th of February, 1925, he executed-to appellant another crop mortgage on an undivided one-half of all rice grown on the farms for 1925, less the one-third interest already mortgaged, which was to secure advances to be made by ¡appellant for making the crop, but no such advances were made, nor is anything claimed by appellant on this mortgage. Thereafter Bullock leased both farms to Beard for the year 1925, agreeing- to furnish one-half the seed rice and the water delivered for irrigation, for which he was to have one-half. the rice crop produced, Beard receiving the other one-half for making the crop.
    On the 20th of April, 1925, Bullock entered into a written contract for the sale of the lands in section 34 to W. 0. Stacey and J. P. Malbry, appellant Snerly having signed said contract, agreeing to release the land from the $17,000 mortgage under its terms. Under said contract of sale Bullock, on the 30th of May, 1925, conveyed by warranty deed to Stacey and Mabry, appellees, the lands in section 34; the tenant, Beard, being in possession of said lands at the time of the execution of both the said contract of sale and the deed of conveyance, but no rice crop had been planted upon the lands at that time.
    After the conveyance, and before the planting of any rice crop, a new lease of the lands was made by the owners, Stacey and Mabry, to Beard, under the terms of which they were to furnish seed rice for planting and deliver the water for irrigation for one-half of the crop produced under this arrangement.
    Bullock produced no rice on the lands in section 34, and furnished no seed rice nor any other supplies for such production, and, having sold and conveyed the land before the crop was planted, had no interest in it.
    On the 30th of May, 1925, Stacey and Mabry executed a mortgage to the Arkansas Light & Power Company on an undivided one-half interest in the rice to be grown on section 34, to secure the payment of its charge for furnishing current for pumping the water for irrigation of the crop. There was produced on the lands in section 34, 3,676.41 bushels of rice, which was delivered to the Arkansas Rice Growers’ Cooperative Association, to be milled and sold pursuant to the terms of the “marketing- agreement” then in force and covering the crop in controversy. All the parties conceded that the tenant, Beard, was entitled to one-half the proceeds of this crop, the other one-half being claimed by appellant, Snerly, by Stacey and Mabry, appellees, and also by tlie Arkansas Light & Power Company, under its mortgage from them.
    The Pice G-rowers’ Association, on the 26th day of February, 1925, filed a bill in chancery against each of the claimants, asking that they be required to prove their claims.
    Stacey and Mabry, on February 27, 1926, answered, claiming the proceeds of the crop, as owners of the land upon which the rice was grown, and with their tenant, Beard, who produced the crop, were entitled to one-half the proceeds, after their debt to the light and power company was paid.
    On March 3,19'26, appellant, Snerly, answered, claiming one-third of all the rice produced under his mortgage executed and delivered to him by A. L. Bullock on the 10th of September, 1924.
    On the 26th day of March, 1926, the Arkansas Light & Power Company answered, claiming, under its mortgage, the right to priority of payment out of the funds derived from one-half the rice crop sufficient to pay its debt.
    The court found the amount due to the power company to be $1,849.24, that it was secured by a mortgage on one-half the crop, which constituted a prior lien thereon, and directed the payment to the company. The court also found that the mortgage executed and delivered by Bullock on the 10th day of September, 1924, to the appellant, Snerly, was valid and constituted a lien on one-third of the rice crop, but was inferior and subject to the prior lien of the mortgage of the Arkansas Light & Power Company for current furnished, and directed only the payment of any balance remaining after the payment of the amount due the power company, from which decree this appeal is prosecuted.

      George C. Lewis, for appellant.

      W. A. Leach and Jolm R. Ingram, for appellee.
   Kirby, J.,

(after stating the facts). The only question for determination is whether the mortgage given on the crop 'by Bullock to appellant, Snerly, constituted a valid and subsisting lien on the rice crop grown on the lands by Beard, a tenant, under Ms lease from Stacey and Mabry, the owners of the land.

It is undisputed that no rice crop had been planted on the lands by Bullock, who, in 1924, mortgaged one-third of the rice crop for 1925 to Snerly, at the time of his conveyance of the lands to Stacey and Mabry on the 20th day of April, 1925; that the crop of rice was planted and produced by their tenant, Beard, no supplies whatever being furnished by Bullock, who had no interest whatever in the crop produced..

Mortgages on crops to be grown in the future constitute no lien upon the land upon which they are to be produced, and the lien formerly did not attach to the crop until it came in esse. The lien then attaches only to such interest as the mortgagor may have in the crop at that time. Jones on Chattel Mortgages, § 143a; Christianson v. Nelson, 76 Minn. 36, 78 N. W. 875; Hall v. State, 2 Ga. App. 739, 59 S. E. 26; O’Connell v. St. Louis Joint Stock Land Bank, 170 Ark. 778, 281 S. W. 385.

Our statutes, C. & M. Digest, §§ 7391-2, provide that mortgages on crops to be planted shall have the same force and effect to bind such crops and their products as other mortgages now have to bind property already in being, requiring only that the crops shall be planted within 12 months after the execution of the mortgage. This statute does not change the .law with reference to the subject-matter of the chattel mortgage, so far .as enlargement of the power of the mortgagor to create a lien on the property in excess of his interest therein is concerned.

In O’Connell v. St. Louis Joint Stock Land Bank, supra, the court said:

“* •* * The fact that the mortgagor was, at the time of the execution of the chattel mortgage, in actual occupancy of the land on which the mortgaged crop was to be grown did not afford grounds under the statute to extend the lien to crops grown by other persons after the mortgagor had been legally dispossessed.”

The mortgage executed by Bullock to Snerly could uot extend to crops raised by the tenant of Stacey and Mabry after the conveyance of the lands to them, said mortgagor having no interest in such crops, which were not raised by him, but were planted and raised by the tenant of his grantees, the then owners of the land.

This holding can make no difference in the decree, however, the lower court having held that the mortgagees Df the owners of the land were entitled to payment of their claim out of the crop proceeds before anything could be realized under the crop mortgage to appellant, since there is not enough of the funds on hand to satisfy the claim of the power company under its valid mortgage.

The decree is accordingly affirmed.