text:
    Van Landingham v. Cruce.
    Opinion delivered March 27, 1922.
    1. Guardian and ward — purchase by guardian op ward’s interest. —Where the purchaser at a partition sale of lands of an estate had a previous agreement with the guardian of an interested minor heir to let him- have a half interest in the land, the sale is voidable within Crawford & Moses’ Dig., § 8115, prohibiting a ' guardian from being interested in the purchase of lands except for the benefit or in behalf of his ward.
    2. Trusts — innocent purchaser. — Where a guardian and another purchased, at partition sale, lands in which his ward was interested, and afterwards resold the lands to an innocent purchaser, they will be held to account as trustees for the profit made by them on the resale of the lands.
    3. Partition — validity op sale. — A sale for partition is not void because the decree of sale did not include all the lands described in the petition for partition.
    Appeal from Drew Chancery Court, D. D. Crenshaw, special Chancellor;
    reversed.

      J. W. Kimbro, and Streett Burnside & Streett, for appellants.
    1. The court had no right or power to order a sale of a part of the minor’s lands for partition, thereby refusing to partition the whole estate. 43 Ky. 210.
    2. The order of confirmation was procured by the fraud of the defendant Cruce, for his own personal benefit, to the detriment of the minors. He was in reality a purchaser at the sale, as evidenced by his course of conduct with Boyd and the acquirement by him of a half interest in the 320-acre tract, and Boyd was aware of his relationship toward the estate and the minor. C. & M. Digest, § 8101.
    3. If Mrs. G-inter is to be protected in her title as an innocent purchaser, then Cruce and Boyd ought to be held to account as trustees for the profit arising from their sale of the lands to her. 96 Ark. 573; 141 Id. 256; 49 Id. 242; 23 Id. 622; 129 Id. 149.

      Henry & Harris, for appellees.
    1. The evidence clearly shows that the forty-acr.e tract omitted from the order of sale was intended to be assigned to the widow, and that all of the lands were considered by the commissioners and the court. As to the rights of the infants, they not only had the right to join in the partition suit, but also were the moving parties in the proceedings. Their status is the same now1, as if they had been adults at the time the decree was rendered. 55 Ark. 22. The sale complained of having been duly confirmed, all irregularities were thereby cured. 126 Ark. 253; 90 Id. 166; 55 Id. 485.
    If Mrs. Ginter was an innocent purchaser, and appellants admit that, then they would not be entitled to recover the land, even though they offered to return the purchase price. 49 Ark. 397; 110 Id. 317; 10 Bush. 61.
    The court had jurisdiction, and might properly have withheld part of the land from sale while ordering another part sold, and under certain circumstances it would have been its duty so to do.
    2. Conceded that Cruce ought to be held to a strict account if he purchased, or was interested in the purchase of, the lands sold. But that is a question of fact to be determined by the preponderance of the evidence. We think the chancellor’s finding was correct and should be sustained.
   Smith, J.

This is a bill of review to vacate a decree of the chancery court ordering and approving the sale of a certain tract of land for purposes of partition. It is alleged that on August 8,1919, an ex parte petition was filed by the widow and heirs-at-law of Charles Richardson, deceased, for the partition of his lands. The parties to this proceeding were the widow, an adult son, and two infant children, a son and a daughter. The infant son, Charles Zack Richardson, was represented by H. P. Cruce, his guardian.

The land described in the petition amounted to 720 acres, and the commissioners appointed to make parti-. tion set aside to the widow and the minor.heirs a homestead consisting of 160 acres; and they also set aside to the widow 200 acres as dower. The commissioners reported that they had found it impracticable to divide or partition the remainder of the land, which they described in their report as containing 320 acres. It thus appears that there was a 40-acre tract of land omitted from their report. The court approved the action of the commissioners in assigning 160 acres as homestead and 200 acres as dower, and ordered the sale of the 320 acres described in the commissioners’ report as the remainder, and made no order in reg’ard to the 40-acre tract which was omitted from the commissioners’ report.

A commissioner was appointed to sell the land, and a sale was made by him pursuant to the directions of the decree. At the sale the commissioner first offered the land in 40-acre tracts, and as thus offered the combined bids aggregated $900. The commissioner then offered the 320-acre tract, and Evie Boyd was the highest bidder and became the purchaser at the sum of $1,010.

It is alleged in the bill of review that this' sale was void because the decree of partition did not include all the lands described in the petition therefor, and because the purchase by Boyd was for the joint benefit of himself and the guardian of the minor son. It was admitted that by mesne conveyances one Mrs. E. Y. (linter had acquired the land from Boyd and Cruce for the sum of $3,200; that she was an innocent purchaser, and had bought without knowledge of any defect in the sale, and that she had paid the full market value for the land. The prayer of the complaint was that the decree of sale be declared void because it did not include all the lands described in the petition for partition, and, in the alternative, if this was not done, that the purchase by Boyd and Cruce be declared to have been made as trustees.

The bill of review was dismissed as being without equity, and this appeal is from that decree.

Cruce was not only the guardian of the infant son, but he was also the administrator of the estate, and at the time of the sale by the commissioner had not made his final settlement as administrator. When the land was first offered in 40-acre tracts, Cruce was the highest bidder for one of them, but he made no bid when the land was offered as an entirety. The sale was made by the commissioner on January 16, 1920, and was confirmed and the deed to Boyd approved on March 3, 1920. On March 10, 1920, Boyd conveyed to Cruce an undivided half interest in the land for $505, which was exactly one-half of the sum bid and paid by Boyd. On March 30, 1920, Boyd and Cruce conveyed the land to Mrs. Ginter for $3,200.

Cruce testified that he had no interest in Boyd’s bid at the time it was made; and Boyd corroborated him in this statement. Cruce further testified that his only concern in the sale was to see that the land brought the highest possible price; but we think his zeal in this behalf caused him to go too far and beyond the limit allowed by law. Cruce admits that sometime before the sale Boyd stated he had some surplus money he would like to invest in real estate, and had asked him (Cruce) to notify him of any bargains he might see along that line, and that he went to Boyd the day the commissioners met and told him that the court would probably order the Richardson lands sold.

One of the commissioners and the grandfather of Cruce’s ward both testified that after the sale they heard Cruce make a statement to the effect that he (Cruce) told Boyd to come over to the sale, and that they would not be hurt at $5 per acre, and that he (Cruce) would go him (Boyd) “halvers,” and that Boyd said, “All right, if you will go me halvers, I will go.” Cruce explains this by saying that his remark was made merely to induce Boyd to buy, and that there was no agreement whereby Boyd was to convey him any interest in the land, and that he did not assume any obligation to buy any interest in the land. Boyd corroborates this statement, but he admitted that Cruce said to him, “Come on and bid on the land, and if you don’t bid over $1,500, I will go you halvers.” He further admitted that he had never seen the land and knew nothing about it except what Cruce had told him.

Cruce himself made the following admission: ‘ ‘ Just about the hour for the sale I walked by the store and asked Mr. Boyd if he was going to bid on that Bichardson land. I insisted that he come over to the sale. Finally, after I saw he seemed to be indifferent, I just remarked to him to come over and bid on that land, and that if you are afraid of it, and if you won’t pay over a certain figure, which I named, I will go you half interest in it.”

Cruce further testified that he supposed Boyd had bought for himself, and that his purchase ended the matter, but a few days after the sale Boyd came to him about taking and paying for a half interest, and that he stated it was not convenient for him at that time to do so, but as Boyd insisted he complied with his request and paid Boyd one-half his bid and took a deed to a half interest in the land.

We think this testimony makes a case coming within the inhibition of section 8115, C. & M. Digest, which provides that “no commissioner, nor any person, for his benefit, shall purchase or be directly or indirectly interested in the purchase of any of the premises sold, nor shall any guardian of any minor or person of unsound mind, party to the proceedings, purchase or be interested in the purchase of any of the lands, the subject of the proceedings, except for the benefit or in behalf of his ward; and all sales contrary to the provisions of this section shall be void.” See also McLaughlin v. Morris, 150 Ark. 347, and the cases there cited.

We think the purchase of Boyd must be held as having been made for the benefit of himself and of Cruce, and, this being true, they must account as trustees for the profit made by them on the sale of the land to Mrs. Grinter.

We think the omission of the 40 acres from the decree of sale did not render that decree void. It is insisted that this 40-acre tract was in fact included in the widow’s dower as assigned to her by the commissioners appointed for that purpose. This may, or may not, be true. If true, it may, by nunc pro tunc order, be made to so appear. It does not appear why the land was not included in the decree of sale if it was not in fact assigned to the widow as dower. There is provision in the statute, however, (§ 8114, C. & M. Digest), where lands are not susceptible of division in kind, for their division and sale in parcels if this is to the advantage of the parties interested. The court below can make appropriate orders concerning this 40-acre tract, if it has not already done so.

The decree of the court below will therefore be reversed, and the cause remanded with directions to require Boyd and Cruce to account for the profits made by them on their sale to Mrs. Ginter as trustees:


source: Caselaw Access Project

author: McCulloch, C. J. McCulloch, C. J.,

license: Public Domain

text:
    Pharr v. South Arkansas Oil & Gas Company.
    Opinion delivered March 20, 1922.
    1. Mines and minerals — fraud in procuring lease. — Where, in obtaining an oil and gas lease, a promoter of a corporation subsequently organized represented to plaintiffs, lessors, that the plan was to obtain leases of 40,00.0 acres of land in a block, and to assign one-half to the corporation and other half to oil men to induce them to drill test wells, and that stock in the corporation would be issued to lessors for leases, the fact that he obtained leases for 30,000 acres in excess of the acreage mentioned, on the same basis, was not a fraud on plaintiffs, entitling them to a cancellation, where there was no agreement that leases in excess of the quantity named should not be taken by the corporation, stock in which was issued to plaintiffs in lieu of rentals, and no showing that acceptance thereof was an unprofitable or undesirable venture, or that it would not be a benefit to all stockholders if the venture was a success.
    2. Principal and agent — ratification of unauthorized act.— where the lessor in a gas and oil lease accepted' and retained stock in the lessee company when he knew or could have known that the stock was intended to be in payment of rentals under the lease, he was not entitled to a cancellation of the lease on the ground that a receipt for the stock was signed by his son without authority.
    3. Mines and minerals — cancellation of lease. — Where, in obtaining an oil and gas lease, a promoter of a corporation subsequently organized represented to plaintiffs, lessors, that the plan was to obtain leases of lands in a block and assign one-half to the corporation and the other half to oil men to induce them to drill test wells, and that stock in the corporation would be issued to lessors in lieu of rentals, the fact that such promoter and his associates withheld leases rightfully belonging to the corporation in accordance with the plan of the stockholders on its organization would not entitle plaintiffs to cancel the lease and withdraw from the corporation, as the corporation and its stockholders have an appropriate remedy to compel the assignment of the leases to the corporation.
    Appeal • from Columbia Chancery Court, J. Y. Stevens, Chancellor;
    affirmed.

      Will Steel, for appellants.
    1. The rule relied on by appellees, to the effect that parol evidence cannot be admitted to enlarge the consideration for the purpose of cancelling the lease, does not apply where fraud enters into the consideration. 71 Ark. 496; 125 Id. 441; 141 Id. 99. It may be admitted that where the allegations of fraud pertain to a promise rather than to an existing’ fact, it is not actionable; but where the promise is made to deceive and with no intention to perform, that affords an exception to the rule. 144 Ark. 429; 113 Id. 517. Wingfield occupied a position of trust and confidence. Webb v. Shea, 148 Ark. 406; 12 It. C. L. 311, par. 72. This court has made no distinction between fraudulent representations and fraudulent concealment where one is under a legal duty to disclose the fact. 131 Ark. 382; 103 Id. 497.
    Appellant is not compelled to rely on parol testimony only, to show that the stock was given as a part consideration for executing the lease. Written evidence of that fact appears by exhibit B to the testimony of Bonnie Davis, being a certified copy of an additional statement made by Wingfield, attached to an application to the State Bank Commissioner to sell stock in the company.

      2. The original receipt was not filed as part of any pleading, neither was it referred to in any original pleading; bnt, if it had been so filed, it would serve only as prima facie evidence of its genuineness, and the other party could contest its genuineness, without first filing an affidavit denying it. 82 Ark. 105; 121 Id. 328.
    There is no evidence that the defendants parted with the stock under the belief that it was given for rentals and renewals. Pharr was ignorant of that contention until suit was brought. How could he be estopped? 10 E. C. L. 694, 695. Appellees admit that they told Pharr that the stock was given him for the lease. If they misrepresented the facts, they cannot take advantage of their own fraud. 12 E. C. L. 395. Mere silence will not estop a party unless the other party is misled to his disadvantage. 100 Ark. 399.

      Mehaffy, Donbam $ Mehaffy, for appellees.
    1. The promises made by Wingfield were promises to be performed in the future, and were not such as could be the basis for an action of fraud. 145 Ark. 311. Yet they were fulfilled, as appears by the testimony of appellant himself. Since his promises were fulfilled, what difference to appellant could it make, that Wingfield and his associates secured other acreage?
    2. It-is not a question of whether appellant signed - the receipt or not. He accepted the stock and retained it nearly two years, without question or inquiry as to the purpose for which it was given.
   McCulloch, C. J.

This is an action instituted by appellants in the chancery court of Columbia County to cancel a gas and oil lease executed by them covering 236 acres of land in that county. Appellants owned the described tracts of land, and on April 10, 1919, executed to the Columbia County Development Company (a co-partnership) a lease of the oil and gas rights on that land. The lease recited a cash consideration of one dollar paid, and stipulated that, if drilling operations should not be commenced within one year from date of lease, lessees would pay a quarterly rental of twenty-five cents per acre for three years, otherwise there should be a forfeiture of the lease.

A corporation was formed, entitled South Arkansas Oil & Gas Company, s.aid corporation being one of the defendants and appellees in this case, and this lease, with leases obtained from other -landowners in the vicinity, was assigned to that corporation. Stock in the corporation of the par value of $236 was issued and delivered to appellants. This stock was issued to appellants in satisfaction and in lieu of the rentals specified in the lease. Stock was similarly issued and delivered to other lessors in amounts equal to one dollar per acre for the respective quantities of land leased. Receipts were taken from each of the lessors to whom the stock was delivered, reciting the consideration for which the stock was delivered. The name of O. D. Pharr, one of the -appellants, was signed to a receipt by his son, but in this action he repudiates the authority of his son to sign his name.

The leases were obtained by W. D. Wingfield, who was made president of the corporation, when organized.

Appellants allege, as grounds for cancellation, that Wingfield, as an inducement to them to give the lease, falsely and fraudulently represented to them that the plan was to obtain the leases in the names of Wingfield, Moody and Cline; that leases were to be obtained on 40,000 acres of land in a block, and assigned, one-half of same to said corporation (to be organized), and the other one-half to certain oil men from Tulsa, Oklahoma, to induce them to put down test wells on the lands, and that stock in the corporation should be issued to the' respective lessors equal in par value to one dollar for each acre of the leased lands in payment for the lease.

It is also alleged in an amendment to the complaint that Wingfield and his associates obtained leases on other lands in excess of the amount of acreage mentioned above and assigned same to the corporation, receiving stock equal in value to one dollar per aere, and that Wingfield fraudulently concealed from appellants his purpose to do that.

There is also an allegation in the complaint to the effect that Wingfield took the lease in the name of the Columbia County Development Company instead of in the name of himself, Cline .and Moody, without the knowledge or consent of appellants, but this fact does not seem important, since the lease was assigned to the corporation as agreed, and that issue seems to have been abandoned.

The answer contains denials of the allegations of fraudulent representations and concealments.

The case was heard oh oral and documentary testimony, and there was a decree dismissing the compaint for want of equity.

The alleged fraud concerning the representations or promises as to the plan to obtain leases to the amount of acreage represented and assign them to the corporation and to the Tulsa people is not supported by the evidence, for the leases were obtained and assigned in accordance with the representations, and the Tulsa people put down the test wells. The fact that Wingfield obtained other leases and turned them over to the corporation, receiving in return shares of stock on the basis the same as other lessors, did not constitute fraud on the rights of appellants. There was no agreement, either express or implied, so far as the evidence discloses, that other leases should not be taken by the corporation in excess of the quantity named. There was no restriction as to the quantity of leases to be obtained. Appellants merely say that Wingfield proposed to obtain leases on 40,000 acres. It is not shown that the acceptance of leases by the corporation in excess of the above specified quantity was an unprofitable or undesirable venture, nor is it shown that the acceptance of such additional leases would not inure to the benefit of all stockholders if the venture proved to be a success. We find nothing in this feature of the case which constitutes fraud.

According to the testimony adduced by appellants, the signature of O. D. Pharr to the receipt by his son was not authorized, but he accepted the stock on the terms named and kept it without objection for nearly two years, when he knew, or could have known, that it was issued in satisfaction of rentals under the lease, the same as stock delivered to the other shareholders. The evidence on this issue is sufficient to support the decree.

Affirmed.

ON REHEARING.

McCulloch, C. J.,

Appellants contend that, according to the evidence, the additional leases obtained by Wingfield were not turned over to the corporation, but that they received the additional stock in the corporation as a bonus for promoting the organization. It is not shown by the evidence with any degree of certainty that the additional leases (30,000 acres) have been withheld from the corporation — at least the intention of Wingfield and his associates to withhold them.

Mr. Bonnie Davis, the only witness who testified on the subject, merely stated his understanding to be that the record disclosed that the Columbia County Development Company was still holding the leases.

The offer to prove the admission of Mr. Harrington, the secretary of the South Arkansas Oil & Gas Company, was properly rejected, for such evidence was not competent. In order to sustain the charge in this respect, appellants should have shown that the additional stock was issued to Wingfield without consideration, and that the additional leases were being withheld from the corporation to deprive the stockholders of the benefits, arising from the ownership by the corporation of these leases.

If the leases are wrongfully withheld by the Columbia Development Company (the co-partnership controlled, as alleged, by Wingfield) the corporation itself as well as its stockholders have an appropriate remedy to compel the assignment of those leases to the corporation. But appellants are not entitled to cancel his lease and withdraw from the corporation merely because Wingfield and his associates are. guilty of wrongdoing in withholding leases which should rightfully go to the corporation in accordance with the plan of the stockholders on its organization.

On reconsideration of the evidence, we are of the opinion that our former conclusion on each feature of the case was correct.

Petition denied.


author: McCulloch, C. J.

text:
    Whaley v. Northern Road Improvement District.
    Opinion delivered March 20, 1922.
    1. Licenses — automobile tax. — The tax imposed by act February 26, 1920, upon the use of automobiles and motor trueks by residents of a road district, is not a property tax, but is a tax on the privilege of using the roads within the district.
    2. Highways — improvement district — taxation of personalty.— For the purpose of constructing local improvements, there can be no direct taxation, either of property or privilege, other than by taxation based upon the benefits accruing to real property for the improvement. •
    3. Licenses — delegation of taxing power to improvement district. — A local improvement district is not a subordinate political agency to which the Legislature, under Const, art. 2, § 23, may delegate its power under art. 16, § 5, to tax privileges; being merely a governmental agency created for the specific purpose of constructing a local improvement.
    4. Taxation — automobile tax. — Act February 26, 1920, imposing a tax on the use of automobiles by residents within a certain road district, is invalid, though sought to be imposed by direct legislation, rather than under delegated authority, as the taxing power, when thus expressed, must be uniform as a State tax, or confined to one or more subordinate political agencies so as to conform to the constitutional rule for the delegation of the taxing power.
    Appeal from Arkansas Chancery Court, John M. Elliott, Chancellor;
    reversed.

      Chapline c§ Morrison, for appellant.
    The levy made by virtue of section 3 of the act, act No. 431 Acts 1920, is not a license, but is clearly a tax upon a certain class of personal property. Berry on Automobiles, 3d Ed. par. 96; Id. par. 95; 61 Ark. 482; 20 Cal. 318. It amounts to the levy of a tax upon personal property for the building of roads, i. e., for the benefit of an improvement upon real property. And personal property cannot be taxed for public improvements. 129 Ark. 542; 142 Id. 351. The case of Pine Bluff Transfer Go. v- N id hoi, 140 Ark. 320, does not apply here. The question involved differed entirely from the questions involved in this case. The Legislature cannot make a valid classification based solely upon residents of a fraction of one of the State’s subdivisions. It is class legislation. 110 Ark. 204; 117 Id. 54; art. 2, § 18, Constitution; art. 16, § 11, Id. A road district does not not constitute a political or a municipal subdivision of State. 55 Ark. 148; 48 Id. 379. It is a mere governmental agency. 59 Ark. 513; 93 Id. 490.

      Robert E. Holt, for appellee.
    1. The privilege tax here imposed is not open to the attack of double taxation. Babbitt, Motor Vehicles, § 69; 73 N. J. L. 529, 64 Atl. 529; 75 N.'J. L. 500, 68 Atl. 110; 105 Miss. 58, 66 So. 745; 70 Ark. 549; 188 Mass. 79; 74 N. E. 255; 85 So. 564. As almost paralleling- this case, see 140 Ark. 320. See also 224 S. W. 168.
    2. The statute does not violate the due process clauses of the 'State and Federal Constitutions. 73 N. J. L. 529; 66 Kan. 710; 72 Pac.-247; 1 L. R. A. (N. S.) 811; 216 111. 31.
    3. Neither does it violate the provision relating to uniformity of taxation. 70 Ark. 549; 140 Id. 320; 85 Id. 509; 102 Id. 131.
    4. There is no merit in the contention that the statute imposes an unjust discrimination, in violation of art. 2 § 18, Constitution. Babbitt, Motor Vehicles, § 45; Berry on Automobiles, § 113; 34 S. D. 271, 148 N. W. 20, 52 L. R. A. (N. S.) 949. See also 102 Ark. 131; 139 Pac. 685; 64 Fla. 726; 18 Ohio Cir. Ct. (N. S.) 488; 135 Pac. 117.

      5. A tax for the privilege of using automobiles upon a street or road is not a tax on personal property. 140 Ark. 320.
   McCulloch, C. J.

Appellants are residents within the boundaries of an improvement district designated as the Northern Road Improvement District of Arkansas County, and they instituted this action in the chancery court of that county attacking the validity of a special statute imposing a privilege tax upon the use of automobiles and motor trucks by residents of the district.

The statute in question was enacted at the extraordinary session of the General Assembly of 1920 and was approved February 26, 1920 (unpublished acts, extra session, 1920). Appellants attack the validity of the statute on several grounds which we consider untenable, and we confine ourselves to the discussion of the single ground on which we conclude the attack is successfully made, namely, on the ground that authority could not be conferred on a local improvement district to levy a privilege tax for the payment of the construction or maintenance of the improvement.

The statute provides that the tax sought to be imposed shall be collected by the tax collector of the county, who shall pay it over to the treasurer of the improvement district.

This is not in any sense a property tax, but a tax on the privilege of using the roads in the district. If it were a property tax, it would fall within the condemnation declared by this court in the case of Snetzer v. Gregg, 129 Ark. 542, where we held that personal property could not be taxed to pay the cost, of a local improvement.

The theory upon which local improvements are authorized to be constructed and paid for out of local taxation is that the real property affected by the district is benefited, and the benefits received constitute the only justification for the special taxation for local improvement. Kirst v. Street Improvement District, 86 Ark. 1.

Personal property cannot be taxed, as we held in the case jnst cited, for the reason that, in the very nature of things, that class of property cannot be benefited by the improvement. It follows, therefore, that not only are the benefits to real estate the only justification for taxation of that class of property, but it is the only method of raising funds for the construction of the improvement. Taxes cannot be levied for privileges or on other classes of property for that purpose.

We do not mean to say that there may not be contributions out of public funds to the cost of the construction of local improvements, but there can be no direct taxation, either of property or privilege, for such purposes, other than by taxation upon the benefits accruing to real property from the improvement. A county or municipality may, under appropriate legislation, contribute of its funds to the construction of local improvements, but the piece of legislation now under consideration is not of that character, and it does not authorize a tax upon the use of automobiles throughout the county, but merely a tax upon the privilege of using automobiles in this district and for the sole benefit of this district. In other words, it is a taxation by and for this particular road district.

Counsel for appellees seek to uphold this statute under our decision in the recent case of Pine Bluff Transfer Co. v. Nichol, 140 Ark. 320, where we held that it was within the power of the Legislature to authorize a county to impose a privilege tax on the use of motor cars used on the public roads. The statute was upheld in that case on the ground that the Constitution (Art. XYI, § 5) provides that the General Assembly shall have power to tax privileges, and that (art. II, § 23) “the General Assembly may delegate the taxing power, with the necessary restriction, to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well-being.” That decision has no application to the present ease, for a local improvement district is not a subordinate political agency of the State, but is merely a governmental agency created for the specific purpose of constructing or maintaining a local improvement. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229. General powers of taxation cannot be delegated to such an agency, for, as we have already said, the only theory upon which taxation of any kind can be justified in the construction of local improvements is that benefits accrue corresponding in value with the cost of the improvement.

The tax sought to be imposed in this instance is by direct legislation and not under delegated authority, but when the power is thus expressed it must be general in its application so as to be uniform as a State tax or it must be confined to one or more of the subordinate political agencies of the State so as to conform to the rule prescribed in the Constitution for the delegation of the taxing power.

The court erred in sustaining the demurrer to the complaint.

Reversed and remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


author: Humphreys, J.

text:
    Latiner v. Moore.
    Opinion delivered March 20, 1922.
    1. Descent and distribution — advancement—evidence.—In partition where the interest of certain parties depended on whether their mother received a conveyance of a tract of land as an advancement from her father or as a gift, the impressions of her brother, who was a small child when the father died, obtained from what the father told him, and not from an inspection of the lost deed, was insufficient to show that the conveyance was intended as an advancement.
    2. Descent and distribution — advancement—presumption.—From the fact that a father conveyed land to his daughter, the law will presume that an advancement was intended.

      3. Descent and distribution — advancement—sufficiency of evidence. — In an action to quiet title, evidence held to show that a daughter received a conveyance of land from her father as a gift and not as an advancement, in view of its character, value and condition.
    Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Lee S Moore and Bogle & Sharp, for appellant.
    Although the land was conveyed to Mrs. Moore by her father as a gift, we think the evidence conclusively shows that she accepted same in full as her distributive share of his estate. 104 'Cal. 570; 30 Ga. 291; 58 111. 105; 59 Ind. 39; 46 Iowa 456; 40 Me. 24; 4 Mass. 680; 15i8 Mich. 256; 17 N. H. 515; 23 N. J. 321; 24 N. T. 627; 5iS N. C. 211; 63 Pa. 443; 4 Tenn. (Sneed) 258; 37 W. Va. 143; 78 Wis. 367. ¿

    A parent has a lawful right to advance to the child the full portion of his estate that it would be entitled to at his death. 41 W. Va. 8.
    An heir who has attained his majority has a right to accept presently in advancement his full share of the estate of the parent. 158 Mich. 256; 4 Mass. 680; 114 111. 603; 4 N. E. 137; 7 N. E. 287; 46 la. 466; 3 Met. (Mass.) 121; 37 Am. Dec. 126; 41 W. Va. 823; 40 Me. 24; 63 Am. Dec. 651; 29 Ont. 609.
    A relinquishment by an heir to his ancestor of his expected inheritance inures to the benefit of the other heirs, after the death of the ancestor. 132 111. 443.
    Equity will enforce an agreement between father and child whereby the father conveys a portion of his estate to the child in full of all future claims against said estate. 84 Ark. 379; 17 N. H. 551; 102 111. 307; 59 Me. 214.

      G. F. Greenlee, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered by the Monroe Chancery Court in a partition suit wherein it was decreed that Charles Moore, Gladys Moore, Thomas Moore, Boy Moore, and Bomey Moore, children and heirs at law of Bachael Moore, deceased, were entitled to an undivided one-fourth interest in the lands sought to be divided. The issue of whether or not they were entitled to any portion of said lands in the division thereof depends upon whether their mother, Rachael Moore, received her share of the estate of her father, J. T. Parker, from him during his life by way of advancement. Prior to his death, about 1890, J. T. Parker owned a farm in said county of about 500 acres, a considerable portion of which was in cultivation. During his lifetime he conveyed 80 acres to Nellie Jane Bullin, one of his daughters, as her full interest in the estate. He also conveyed forty acres of the land, which had not 'been opened, worth about $200, to his daughter, Rachael Moore, which she and her husband moved upon and improved. At the time of his death J. T. Parker left him surviving his widow, Elizabeth Parker, who survived him several years, and six children. Ben Parker claimed no interest in the estate, having sold his undivided interest to Charles McMillan, who afterwards had said interest, consisting of 109 3-4 acres, assigned to him by the Monroe Chancery Court as his share in said estate. The undisputed evidence revealed that Nellie Jane Bullin had received 80 acres as her full part of said estate, and it was ascertained and decreed that her heirs were not entitled to any interest therein.

The testimony tending to show that Rachael Moore received 40 acres in full of her interest in said estate was proof to the effect that a deed thereto was made by her father and delivered to her, which deed was lost and not placed on record, and the statement of her brother, Ben Parker, to the effect that it was his impression that the 40 acres was deeded to his sister, Rachael Moore, as her part in said estate, and that the deed was supposed to have stated that fact. Ben Parker, who was a small child when his father died, stated that his impressions were not obtained from' an inspection of the deed, but from what his father told him. This evidence is insufficient to show that Rachael Moore received the 40-acre tract in question as an advancement of all her interest in the estate of her father, and, we also think, insufficient to show that the conveyance of said tract to her was intended as an advancement at all. The contents of the lost deed were established by the impression only of a witness who received the impression when he was a small child, and who got the impression from what his father told him, and not from an inspection of the deed. The only weight that can be attached to the lost deed, under the circumstances, is that it was executed and delivered to Rachael Moore. From that fact alone the law, in the absence of evidence to the contrary, will presume it an advancement. Watson v. Murray, 54 Ark. 499; Culberhouse v. Culberhouse, 68 Ark. 405; Goodwin v. Parnell, 69 Ark. 629; Cotton v. Citizens’ Bank, 97 Ark. 568. We think, however, that there is sufficient evidence in the case to the contrary tending to show that the conveyance was a gift, and not an advancement. Mrs. D. J. Banks testified that she heard Rachael Moore say that the forty acres in question was land given her by her father. The 40 acres conveyed was wild land and on the outskirts of the farm. The amount of acreage was less than her share; it did not equal her share in value. The conveyance included no part of the lands in cultivation. If J. T. Parker had intended the conveyance of the 40-acre tract as an advancement, there is no reason why lie should not have given her a full share in acreage and value. There was ample land to have done so, for his farm consisted of about 500 acres. When he conveyed his daughter Nellie Jane Bullin her share, he conveyed her 80 acres, or about one-sixth of the 500-acre tract. When the share of Ben Parker was assigned and set off, it consisted of 109 3-4 acres,-more than his full share in acreage, but perhaps an amount in value equal to his share.

Considering the time at which the 40-acre tract was conveyed to Rachael Moore, the small amount, its value, and character, being* wild and no part of the improved or cultivated lands, the conclusion is almost irresistible that the conveyance was intended as a gift, and not as an advancement. The chancellor so found, and, after a very careful analysis of the testimony, we are unable to say that the finding of the chancellor was contrary to. the clear preponderance of the evidence.

The decree is affirmed.

Wood, J., dissents.


author: Per Curiam.

text:
    Pearce v. People's Savings Bank & Trust Company.
    Opinion delivered March 20, 1922.
    1. Appeal and error — separate appeals. — There can be no separate appeal from an order refusing to set aside a decree rendered at the same term; but the appeal must be from the decree, which, if effective, would bring under review the order of the court refusing to set it aside.
    2. Appeal and error — time to appeal. — Under Crawford & Moses’ Dig., § 2140, providing that no appeal shall be granted except within six months after the rendition of the judgment, order or decree sought to be reviewed, pendency of a petition to vacate the decree does not extend the time for granting and perfecting the appeal.
    3. Appeal and error — time to appeal. — Under Crawford & Moses’ Dig., § 2140, providing that no appeal shall be granted except within six months after rendition of the judgment, order or decree sought to be reviewed, the appeal must be perfected as well as granted in that time; section 2135 requiring appellant to file an authenticated copy of the record within 90 days after the. appeal is granted merely restricting the time for filing the transcript, and not extending it beyond the time allowed for granting • the appeal.
    Appeal from Jefferson Chancery Court; John M. Elliott) Chancellor;
    appeal dismissed.
   Per Curiam.

This is an appeal from a final decree of the chancery court of Jefferson County confirming a sale of real estate made by the commissioner under a former decree of the court; and appellee moves for a dismissal of the appeal on the ground that it was not perfected within the time prescribed by the statute.

The decree of confirmation was rendered by the court on July 23, 1921, and during the same term of court appellant, whose exceptions to the sale had been overruled in the decree of confirmation, filed a motion on November 9,1921, praying that the decree of confirmation be set aside. The court overruled the motion on November 19, 1921, which was a day of the same term, and an appeal was then prayed, and was granted by the chancery court. The transcript was not lodged in this court until February 6, 1922, which was more than six months after the rendition of the decree of confirmation, but within ninety days after the appeal was granted by the chancery court.

It is said by counsel for appellant that the appeal was from the order refusing to vacate the former decree as well as from the former decree itself, but this is not so, for there cannot be a separate appeal from an order made during the same term refusing to set aside a decree on a former day of the term. If such an appeal were allowed, it would necessarily bring up for review the correctness of the former decree, even though the appeal was not taken within the time prescribed by law; otherwise, if the application to set aside the decree was made at a subsequent term, that would constitute an independent proceeding from which an appeal would lie. Ayers v. Anderson-Tully Co., 89 Ark. 160. This must therefore be treated as an attempt to appeal from the final decree of confirmation, which, if effective, would bring under review the order of the court refusing to set it aside.-

The pendency of the petition to vacate the decree did not extend the time for granting and perfecting the appeal. Oxford Tel. Mfg. Co. v. Arkansas Natl. Bank, 134 Ark. 386.

The statute provides that an appeal cannot be taken except within six months after the rendition of the judgment, order or decree sought to be reviewed. Crawford & Moses ’ Digest, § 2140.

The record shows that the appeal in this case was granted within six months, but that it was not perfected by filing the. transcript here within the time prescribed by the statute referred to above. The question arises, then, whether the section cited above requires that the appeal be perfected within the time, or whether it merely provides that the appeal must be granted within the time, and that it has no application to the time within which the appeal must be perfected.

The question now under consideration was propounded and answered by Judge Battle in delivering the opinion of this court in the case of Robinson v. Arkansas Loan & Trust Co., 72 Ark. 472: “What is an appeal? ‘The word, when accurately used in law matters, means the removal of a suit in equity, or of an action at law, from an inf erior to a superior court. ’ * * * * When the appeal is granted, and an authenticated copy of the record is filed in the Supreme Court, the suit or action is thereby removed. The filing of the copy of the record is necessary, because it is the source from which the appellate tribunal obtains its knowledge of the facts in the case and of the questions upon which it is its duty to pronounce judgment. When it is filed, the appellate court’s jurisdiction of the subject-matter is complete, and the cause is removed.”

In the opinion of this court in the case of Osborn v. LeMaire, 82 Ark. 490, it is said, “an appeal must be perfected within one year.”

These decisions are conclusive of the question noAv presented, for it is conceded that the appeal was not perfected by filing the transcript with the clerk of this court within six months after the final decree was rendered. But it is insisted 'by counsel for appellant that the statute referred to above has no application to the time for filing the transcript, which is controlled by another statute reading as follows: “It shall be the duty of the appellant to file in the clerk’s office of the Supreme Court, within ninety days after the appeal or writ of error is granted, an authenticated copy of the record, otherwise his appeal or writ of error shall be dismissed; but the Supreme Court may for cause shown extend the time for filing sneh copy.” Crawford & Moses’ Digest, § 2135.

Counsel are mistaken in their contention, for this statute merely restricts the time for filing the transcript, and does not extend it beyond the time allowed for granting the appeal. If the construction of counsel were correct, then an appeal might be obtained from the clerk of this court, as well as from the lower court, at any time within six months after the rendition of the final decree and then file the transcript at any time within ninety days. On the contrary, this court has decided that the transcript must be filed in this court within six months where an appeal was sought to be obtained here. Damon v. Hammonds, 73 Ark. 608; Moore v. Henderson, 74 Ark. 181.

The appeal not being within the time prescribed by the statute, the same is dismissed.


text:
    Saul v. Bass.
    Opinion delivered March 27, 1922.
    1. Frauds, statute op — jury question. — Testimony held to make it a question for the jury to determine whether there was an original undertaking to pay for goods sold or whether the contract was merely an oral contract of guaranty or suretyship, or whether there was any contract with reference to the payment of the account.
    2. Frauds, statute op — original undertaking to pay another's debt — evidence.—In determining whether an oral promise by a defendant is an original or a collateral agreement to pay for goods delivered to another, the intention of the parties at the time it was made must be regarded, and, in determining such intention, the words of promise, the situation of the parties, and all circumstances attending the transaction should be considered.
    Appeal from Arkansas Circuit Court, Northern District; George W. Ciarle, Judge;
    affirmed.

      Harry E. Meek, for appellant.
    The allegations of the complaint and appellee’s own testimony make out a case within the statute of frauds. C. & M. Digest, § 4862. For “original” and “collateral” undertakings — explanation of the terms, — see 20 Oyc. 163. In this case, the test is, did Shoup receive credit as a result of Saul’s agreement? 20 Cyc. 165; Id. 180; Id. 182; 88 Ark. 593; 102 Id. 435.

      Chapline & Morrison, for appellee.
    The evidence on the part of the plaintiff, as appears by the record, was that the account sued on was the debt of Saul. The same having been admitted without objection, the complaint will be treated as amended to conform to the proof. 84 Ark. 37; Jenkins v. International Life Ins. Co., 149 Ark. 257.
    It was an original undertaking. The substance of the evidence is that Saul said to Bass, “Let Shoup have the goods and I will pay the bill, ’ ’ and, acting upon that promise, the account was made. 40 Ark. 429.
    The evidence was conflicting. The verdict will not be disturbed. 76 Ark. 88; 84 Id. 74; 90 Id. 131.
   McCulloch, C. J.

The plaintiff (appellee) sued defendant Saul and one Shoup jointly on an account for goods and merchandise sold by the plaintiff and delivered to Shoup.

It is alleged in the complaint that Shoup applied to plaintiff for credit, which was refused, and that thereafter plaintiff agreed to deliver merchandise to Shoup at the latter’s request upon the agreement of Saul to pay for the same. Shoup made default and judgment was rendered against him, but Saul filed an answer, in which he denied that he had bound himself, either as a guarantor, surety or on original undertaking, to pay for the goods delivered to Shoup, and he pleaded the statute of frauds.

On the trial of the case, plaintiff testified that he was a merchant in Stuttgart; that Shoup applied to him for credit on sales of merchandise; that he refused to credit Shoup, but stated that he would deliver the goods if Saul would agree to pay for same, and that Saul then entered into an oral agreement with him to pay for all the goods and merchandise delivered to Shoup at the latter’s request.

The testimony of the plaintiff was not altogether consistent in its language with reference to the precise agreement made by Saul with him. He testified in one place that Saul told him to let Shoup have goods and to “look to him for the money.” In another place he stated he would not let Shoup have anything on credit, but “looked to Mr. Saul to pay it.” In another place he stated that Saul “guaranteed the account,” and still later he said Saul told him that he would pay the account.

These were various ways of stating the transaction, and it was a question for the jury to determine what the contract was between the parties — whether it was an original undertaking on the part of Saul to pay for the goods, or whether it was merely a contract of guaranty or suretyship.

Plaintiff’s clerk testified, and his testimony was strongly in corroboration of the testimony of plaintiff himself. The witness testified that the goods were all charged to Saul. • This is contradicted by Saul himself, who testified that he made no agreement at all with plaintiff with reference to the sale of the goods, and he produced a few rof the sales tickets showing that they were made out to Shoup. This made a question for the jury to determine the character of the contract between the parties, or whether there was any contract at all between them with reference to the payment of the account.

Shoup’s presence in the case has been eliminated by the default judgment against him. The suit was instituted upon alleged joint liability on the part of Shoup and Saul, and counsel for defendant insists that the proof failed to show joint liability and that there could be no joint liability on the part of the two persons.

Conceding that the proof fails to show a joint undertaking on the part of the two defendants to pay for the goods, this does not affect the question whether or not it was an original undertaking on the part of Haul. The question is not whether Shoup is liable, for, as before stated, he has been eliminated from the case, but, if there was a joint undertaking on the part of the two persons for the purchase of the goods and the delivery thereof to Shoup, it might still be an original undertaking on the part of Saul not within the statute of frauds.

The question now before us is, not whether there is joint liability, but whether there was an original undertaking on the part of Saul to pay for the goods delivered to Shoup, and we are of the opinion that the evidence is sufficient to sustain the finding in plaintiff’s favor on that issue. We have said that, “in determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and in determining such intention the words of the promise, the situation of the parties and all of the circumstances attending the transaction should be taken into consideration.” Millsaps v. Nixon, 102 Ark. 435; Grady v. Dierks Lbr. & Coal Co., 149 Ark. 306. The issue was submitted to the jury upon appropriate instructions, the correctness of which does not seem to be questioned now.

Judgment affirmed.


text:
    Hamilton v. McGill.
    Opinion delivered March 27, 1922.
    1. Partnership — recovery of profits at law. — An action by a partner against his copartner to recover his share of the profits of certain sales may be brought at law where no question of adjustment of accounts is involved.
    2. Partnership — recovery of share of profits — defense.—Where a partner sued his copartner to .recover his share of the profits from a sale of mussel shells, under an agreement whereby plaintiff was to furnish the money and defendant was to buy the shells for resale and divide the profits, it was no defense that plaintiff was representing a button manufacturing concern which was furnishing the money to buy the shells, since, even if plaintiff’s participation in such profit's was a breach of duty toward his employer, the alleged agreement was not on that account void.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jackson, Judge;
    affirmed.

      R. M. Hutchins, for appellant.
    Under the undisputed facts the court ought to have directed a verdict for the appellant. Appellee ought to have no standing in court. It is purely a case of an agent, acting as buyer for his company with authority to pay for the goods he bought, and using his employer’s money for that purpose, seeking to exact a secret profit from sales to his employer. 13 C. J. 492 et seq.; 46 Ark. 420; 13 C. J. 415; Id. 417; 90 Ark. 304; Luke XVI, 13; 21 R. C. L. 827.
    An agreement, the object or tendency of which is to constitute a breach of trust on the part of a person standing in a fiduciary or confidential relation, is void. 6 R. C. L. 719; Id. 720; Id. 816-17-18; 46 Ark. 420.

      E. M. Carl Lee, for appellee.
    Appellant did not plead the illegality of the contract and will not be permitted to raise that question- here for the first time. 94 Ark. 513; 119 S. W. 1121, and cases cited.
    However, there was no illegality in the contract. Nowhere is it shown that appellee used funds which were the subject-matter in his agency in his contract with appellant.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover the sum of $883.40, alleged to be due appellee by appellant as the former’s share of the profits on certain operations between the parties as copartners.

It is alleged that appellee and appellant entered into an agreement whereby appellant should purchase mussel shells on the Ouachita River for resale; that appellee should furnish the money with which to buy the shells, and that the profits should be equally divided between them.

It is alleged that six carloads of shells were purchased and resold to a certain concern engaged in the manufacture of buttons, and that appellant had refused to pay appellee his half of the profits.

Appellant alleged in his answer that he was engaged in the business of buying and re-selling mussel shells; that he was the agent and representative of a certain button manufacturer, to whom he sold the shells, and that, under the agreement between him and appellee, he was to re-sell the shells to the button manufacturers at a certain price and receive a profit or commission of ten dollars per ton. He denied that he was to share that with appellee.

There was a trial of the case before a jury, and the court submitted the two theories of the parties to the jury, and there was a verdict in appellee’s favor for the full amount claimed in the complaint.

Appellee testified that appellant entered into the agreement with him set forth in the complaint, and that he (appellee) furnished the funds to buy the shells; that appellant refused to account to him for one-half of the profit of ten dollars per ton, as agreed. Appellee denied that he was acting as agent for the button manufacturing concern in the dealings with appellant with respect to the purchase of these particular shells.

The evidence was sufficient to warrant the finding that appellee was representing the manufacturing concern in buying shells from appellant, notwithstanding appellee’s testimony that in this particular transaction the button manufacturing company had nothing to do with it.

Appellant asked the court to give an instruction, which the court refused, as follows: ‘ ‘ Gentlemen of the jury, if you find from .the evidence that it. M. "W. McGill was an agent for a shell company on the date of his agreement with the defendant, and that as such agent he used the funds of the company, who was his employer, with which to pay this defendant for the shells sold by the defendant to this plaintiff’s employer, then your verdict will be for the defendant.”

This is not a suit in equity for an accounting between copartners, but an action at law for an amount alleged to be due on settlement of the partnership affairs. There is no question of adjustment of accounts, but the action is merely to recover the amount alleged to be due. The action was maintainable at law. Phillips v. Mantle, 136 Ark. 338.

The instruction copied above was properly refused by the court.

If appellant entered into the agreement with appellee, as the latter claims, he was liable to appellee for the latter ’s share of the profits, notwithstanding appellee’s participation in the enterprise was in violation of his duty to his employer. Appellant is in no position to plead in defense of his obligation the fact that appellee could be held to account as trustee by his employer. In other words, the alleged contract'between appellant and appellee was not void on that account. Appellee was merely subject to be held accountable to his employer for breach of trust, if there was in fact any such breach. Appellee denied that there was any breach of duty to his employer, and stated that in this particular transaction he acted solely for himself. But whether this is true or not, it constitutes no defense for appellant.

The evidence was sufficient to sustain the verdict of the jury.

Affirmed.


author: Hart, J.

text:
    Cook v. Moore.
    Opinion delivered March 27, 1922.
    1. Mechanics’ liens — contractor’s right to lien. — Under Crawford and Moses’ Dig., § 6906, a contractor has no lien for profits made by him in repairing the building of another, his right to a lien being limited to materials actually furnished by him or labor actually performed by him in such repair.
    2. Mechanics’ liens — time op piling. — Where all of the items of materials furnished by a lumber company in repairing a house were furnished during the progress of the work under a single contract, and its claim was filed under the statute within 90 days after the last item was furnished, its lien attached to the house.
    3. 'Mechanics’ liens — priority..—Under Crawford & Mose.s’ Dig., § 6911, providing that the lien for work and materials furnished shall be preferred to all other incumbrances which may he attached to the property subsequent to the commencement of such building or improvement, held that a materialman’s lien was superior to the lien of a mortgage executed after the work of repairing a building was commenced, though, before any materials were furnished therefor, the mortgagor borrowed money from the mortgagee and agreed to execute a mortgage on the property.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed in part.
    STATEMENT OE EACTS.
    John A. Moore filed a suit in the chancery court to enforce a mechanics’ lien as principal contractor in the sum of $1,330.75 on a house and certain lots in the city of Forrest City, Ark., belonging to J. M. Gilliam.
    The Van Houten Lumber Company also filed a suit in the chancery court to assert a lien on said house and lots in the sum of $204.87 for material furnished and used in remodeling said house.
    Mrs. V. T. Cook filed a separate suit in the chancery court against J. M. Gilliam to foreclose a mortgage on said house and lots given to secure the sum of $4,000 which Mrs. Cook had loaned Gilliam to remodel and repair said house. The causes were consolidated and tried together in the chancery court.
    J. M. Gilliam had been cashier of the Planters ’ Bank in Forrest City, Ark., during the year 1920, and for several years prior thereto. He applied to Mrs. V. Y. Cook of Batesville, Ark., through her brother, W. J. Lanier, for a loan $4,000. Lanier was the intimate friend of Gilliam, and the latter told the former that he intended to use the money in buying materials and paying a contractor to enlarge and remodel his home in Forrest City. '
    During the early part of May, 1920, Lanier delivered to Gilliam Mrs. Cook’s check for $4,000 drawn on the Planters’ Bank, and requested Gilliam to execute a note and mortgage to secure the same at once. Through oversight Gilliam neglected to execute the note and mortgage. In the meantime Gilliam proceeded with the work of repairing his house and used the amount of Mrs. Cook’s check in doing the same. Subsequently on July 8, 1920, J. M. Gilliam and wife executed a note in favor of Mrs. V. Y. Cook in the sum of $4,000 and a mortgage oh their home and the lots on which it was situated to secure the same. Neither Mrs. Cook nor Lanier knew that the money had already been used for repairing the house or that work had been begun on the house at the time the note and mortgage in question were executed.
    According to the testimony of J. M. Gilliam, he entered into a contract with John A. Moore to repair and remodel his home. The work was begun on May 12, 1920, and completed in eight weeks. Gilliam was confined to his house during the months of October and November, 1920, on account of a sore foot, and says that no repair work was done on the house during those months.
    Mrs. Louise G. Gilliam corroborated the testimony of her husband. According to her testimony, the tiling on one hearth was changed from red to gray because the red tiling was irregular and defective when it was laid.
    According to the testimony of John A. Moore, he began woi'k on the house on May 15, 1920, by tearing out the porches and old rooms, and continued to work on the house at intervals until November 4, 1920, when the work was finally completed. It was agreed that he should be paid on the basis of eight per cent, commission on the entire cost of work done, labor performed and materials furnished. According to the testimony of Moore, there remained due him on the whole work $1,330.75'. On. November 4, 1920, some screen wire was pnt over tbe gable ventilators, and this was tbe last work done on the house! A part of the painting was done during the month of October. The screen wire that was put over the gable ventilators was bought by Moore from the Yan Houten Lumber Company for the purpose of being placed over them. Moore filed his mechanics ’ lien under the statute of January 12, 1921. The mechanics’ lien on the Yan Houten Lumber Company was filed under the statute on January 14, 1921. An itemized account of the materials furnished by it and used in remodeling and repairing the house was also exhibited and proved in evidence by the Yan Houten Lumber Company. The last item filed by it was the screen wire used on the gable ventilators, and this item was furnished on November 4, 1920. No part of the $4,000 borrowed by Gilliam from Mrs. Cook has been paid.
    Other testimony will be stated or referred to in the opinion.
    • Judgment was rendered in favor of the parties for the sums respectively due them, and a lien was declared in favor of John A. Moore and the Yan Houten Lumber Company which was superior to the mortgage lien of Mrs. Y. Y. Cook.
    The decree provided for a sale of the property with directions to apply the proceeds first to the satisfaction of the mechanics’ liens of John A. Moore and of the Yan Houten Lumber Company, and the remainder to the satisfaction of the mortgage of Mrs. V. Y. Cook.
    To reverse that decree, Mrs. Cook has duly prosecuted an appeal to this court.

      W. J. Lanier, for appellants.
    The account filed by Moore did not comply with the statute. Kirby’s Digest, sec. 4970; 102 Ark. 541.
    Materials furnished must be used and become a part of the building, before a lien can be acquired. 84 Ark. 560; 99 Ark. 293. Liens are creatures of the statute, and must be perfected and enforced according to its provisions. 114 Ark. 1; 117 Ark. 626. The lien must be filed within ninety days after the last delivery. 119 Ark. 461; 119 Ark. 43; 115 Ark. 320; €. & M. Digest, sec. 6922; 32 Ark. 59.
    Plaintiff Moore was only entitled to a lien for work and labor actually performed by him. 23 Ark. 327; 27 Ark. 564; 43 Ark. 168; 50 Ark. 244; 69 Ark. 23; 71 Ark. 334; C. & M. Dig., sec. 6848; 32 Ark. 68; 12 Cyc. 1610; 27 Cyc. 83; 18 E. C. L. 910.

      C. W. Norton, for appellees.
    The contractor’s and materialman’s liens date from the beginning of the contract. C. & M. Dig., § 6911; 56 Ark. 608.
    The deed of trust under which appellant claims became a lien at the time of filing same. Sec. 7381, C. & M. Digest.
    This case is not within sec. 6909, but is within sec. 6911, of C. & M. Digest.
    The contractor is entitled to his lien, not only for his own labor, but for the labor of those under him. 99 Ark. 293; 27 Cyc. 84.
   Hart, J.

(after stating the facts). The chancery court erred in holding that John A. Moore had a mechanics’ lien for $1,330.75. According to Ms own testimony, he made a contract to repair 'Gilliam’s house on a basis of eight per cent, commission on the entire cost- of the labor performed and materials furnished. So far as the record discloses, nearly all of the amount claimed by Moore represents the profits made by him in repairing the house and the amounts paid by him to laborers and mechanics for working on it.

Therefore, he had. no lien under the statute. The court had the precise question before it so far as the repair or construction of railroads is concerned in Little Rock, Hot Springs & Texas Railway Company v. Spencer, 65 Ark. 183. The statute in that case provided that “every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fiitures or other thing toward the equipment, or to facilitate • the operation of any railroad, shall have a lien therefor upon the roadbed, ’ ’ etc. It was held that a contractor who furnished the labor and appliances to build the roadbed and paid for the same, but did not personally labor or work upon said roadbed, was not entitled to a lien thereon.

Sec. 6906 of Crawford & Moses’ Digest provides in substance that “every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work upon, or furnish any material, fixtures,” etc., for any building, erection, improvement upon land, etc., shall have for his work or labor done, or materials furnished, a lien upon such building, erection or improvement, etc.

It will be observed that the same classes ‘of laborers and mechanics are mentioned in each statute, and, if the court should hold in the case of railroads that the statute only gives a summary remedy for the enforcement of mechanics’ and laborers’ liens upon the property in question when the debt is due for the labor actually performed by them and the materials furnished by them, there seems to be no good reason for holding otherwise in the case of the construction of a building or other improvement of that character. In other words, if the contractor who undertakes by contract with the owner to construct a railroad. does not come within the letter or spirit of the act or within any of the classes enumerated therein, for like reason such contractor should not be held entitled to a lien for erecting a building except for' materials furnished by and labor actually performed by himself.

In the one case the court has already held that where the contractor did not labor as a mechanic, but superintended work done by others, or paid for the same, he is not entitled to a lien. It seems then that the object of the statute is not to secure the contractor, who can take care of himself in his contract with the owner, but those who may suffer loss by confiding in the contractor, and who do not stand in any contractual relation with the owner.

The aim and policy of the act in each case seems* to have been to protect the mechanics, laborers, and materialmen from being defrauded by insolvent owners and dishonest contractors. This, too, was the effect of our decision in Royal Theater Company v. Collins, 102 Ark. 539, where it was held that a contractor had no lien under the statute for profits made by him in erecting the building. The court said that the statute only gives the contractor a lien for work done by him or materials furnished by him.

It follows that the court erred in holding that John A. Moore had a mechanics ’ lien superior to the mortgage of Mrs. Cook. As we have already seen, he could only have a lien prior to that of Mrs. Cook’s mortgage lien for materials actually furnished by him and labor actually performed by him in the repair of the building.

This brings us to the question of whether or not the Van Houten Lumber Company had the lien claimed by it. According to the testimony of its employees and of John A. Moore, the Van Houten Lumber Company had a contract to furnish materials to be used in the repair of Gilliam’s house. Pursuant to the contract, the company did furnish materials from time to time which were used in repairing the house. The last item was furnished on the 4th day of November, 1920. The contract was an indivisible one, and the lien was filed within ninety days after the last item was furnished.

It is true that the evidence for the Van Houten Lumber Company was contradicted by that offered in behalf of Mrs. Cook; but the chancellor found this issue of fact in favor of the materialman, and we cannot say that the finding is against the preponderance of the evidence. All of the items were furnished during the progress of the work done under a single contract, and the claim was filed under the statute within ninety days after the last item was furnished. Hence the lien attached. Hill v. Imboden, 146 Ark. 99.

Again, it is claimed that the money was borrowed from Mrs. Cook and an agreement made with her to execute a mortgage on the property in question to secure the same before the materials were furnished. This does not make any difference. Sec. 6911 of Crawford & Moses’ Digest provides that the lien for work and materials furnished shall be preferred to all other incumbrances which may be attached to the property subsequent to the commencement of such building or improvement.

The Yan Houten Lumber Company made the contract to furnish supplies to be used in the building and did furnish the greater part of them before the mortgage to Mrs. Cook was executed. Its lien was perfected in accordance with the terms of the statute, and it was prior to the lien acquired by Mrs. Cook. She did not acquire any lien until her mortgage was filed for record on the i8th day of July, 1920. O’Neil v. Lyric Amusement Co., 119 Ark. 455.

The decree in favor of John A. Moore will be reversed and the cause remanded with directions to the chancellor to hold that he has no lien on the property in question under1 the statute, except for materials actually furnished by him and labor performed by him in the repair of the house. The decree in favor of the Yan Houten Lumber Company is affirmed.