text:
    Nelson v. Forbes.
    Opinion delivered December 13, 1926.
    1. Fraudulent conveyances: — transfer of personalty. — Under-Comp. Stat. of Okla. 1921, § 6021, providing that transfers of personal property shall -be void as to creditors and subsequent purchasers or incumbrancers in good faith, unless followed by immediate delivery and continued change of possession, hSld that ■ the change of possession must be actual and continued and so open and notorious as to apprise the community or those accustomed to deal with the property of such change.
    2. Fraudulent conveyances — transfer of personalty. — Transfer of cotton-by a mortgagor to his landlord in payment of rent before the date of a mortgage, where the cotton was left on the tenant’s premises until after the mortgage was executed, was fraudulent as against the mortgagee, under Okla. Comp. Stat. 1921, § 6021, because unaccompanied by a change of possession.
    3. Appeal and error — former opinion not binding. — Where the court on a former appeal decided that the cotton in question had been delivered, but left open for decision the question of the date of delivery, such decision would not be binding on a subsequent appeal where the facts on the issue of delivery were diiferent from those on the former appeal.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatmn, Judge;
    reversed.

      George W. Johnson and G. L. Grant, for appellant.

      Holland, Holland é Holland, for appellee.
   Wood, J.

L. D. Nelson brought this action in the Sebastian Circuit Court against Forbes & Sons to recover twelve bales of cotton which had been mortgaged to him in the State of Oklahoma by one William Bromley. The cotton was brought into Arkansas and sold to Forbes & Sons at Hackett City, Arkansas, by one Z. R. Smith, to whom it had been turned over by Bromley in payment of an alleged rent note upon a farm sold to Bromley by Smith prior to the maturity of the note. Smith had contracted to sell Bromley the land on which the cotton was grown, and, on November 11, 1919, executed a deed to Bromley for the recited consideration of $7,500 cash in hand. This deed was not then delivered, but was placed in escrow until Bromley could raise the cash payment required. Before the delivery of the deed Smith rented the land to Bromley for $1,000 for the year 1920 and took a note for that amount, dated January 27, 1920, due November 15, 1920. Eighteen bales of cotton were grown on the place in 1920, twelve of which were stored in the barn on the place, and, on August 2, 1921, these twelve bales were mortgaged by Bromley to Nelson. The mortgage was duly executed and filed according to the laws of Oklahoma.

The defendants defended the action on two grounds: First, that they were innocent purchasers; and, second, that Smith was Bromley’s landlord, and, as such, had a lien on the cotton for the year 1920 which was superior to appellant’s mortgage, and Smith had a right to sell the cotton to the defendants and to apply the proceeds thereof to the payment of his rent,

This is the second appeal in this case. See Nelson v. Forbes & Sons, 164 Ark. 462, 261 S. W. 912. The issues and facts as above set forth are fully stated in the opinion in the above case. On the former appeal we said: “The mortgage from Bromley to Nelson was dated August 2, 1921, and one of the disputed questions of fact in the case is whether the cotton so stored had been delivered to Smith prior to the execution and delivery of the mortgage, and the conflict in the testimony makes a question for the jury whether there had been a delivery to Smith prior to August 5, the date the mortgage was filed. Had that been done, this, of course, would be decisive in the case, as the title to the cotton would have passed to Smith upon fits delivery to him. It is insisted, however, that the testimony shows that no delivery of the cotton to Smith had ever been made until after the execution of the mortgage, and that Bromley was in possession of it for himself, holding it to be sold when the market price advanced.” On the former appeal the judgment of the trial court was reversed, and the cause was remanded “with directions to submit the case under an instruction to the effect that a verdict should be rendered in favor of the plaintiff, unless the jury finds the fact to be that, before the filing of the mortgage, the cotton had been delivered to Smith.” On the retrial of the cause in the circuit court, witness Bromley testified in part as follows: That the cotton in controversy might have been rolled from the place where he stacked it in his barn shed in 1920 to a different place. He owed Smith $1,000 for rent. The note was due, and Smith came to see witness in regard to collecting same. Witness told Smith that the only thing he could do was to give him the cotton, which he did. .He was asked if he delivered the cotton to Smith at that time, and answered, “Sure, as near as we can call it delivered. I called it delivered, because I never did claim it any more and never thought about selling it after that.” The cotton remained at witness’ place some time after that. Smith left it there because it was under a shed. He had no place to put it. Smith asked witness to let it remain there until the market got higher. To the best of witness’ knowledge, this occurred when the note came due, November 15, 1920. That was the day that witness sold and delivered the cotton to Smith to pay the note and when Smith asked the witness to let the cotton remain there until he got ready to sell it. Witness was asked if Smith moved the cotton from the place where it was when witness turned it over to him, and answered, “It was never moved from that place until it-was taken by Smith to Hackett, Arkansas, and sold to Forbes. The cotton remained in the same place until January, 1922.”

Smith testified concerning the delivery of the cotton as follows: Bromley owed him a debt and paid it with twelve hales of cotton in November, 1920. He held the cotton in Bromley’s shed, and sold it to Forbes in 1921 or 1922. Witness further described the circumstances of the delivery of the cotton as follows: “He owed me, and says, ‘I got twelve bales of cotton, but the price is down. I will deliver it to you, and you can do what you want to with it.’ I said: ‘We will hold it awhile, and, if it brings more, all right.’ ” Witness took charge of the cotton there as his, and went and got it when he got ready to sell it. This witness’ testimony further shows that Bromley paid witness, on January 13, 1922, $742. That was the date witness sold the cotton to Forbes and gave Bromley credit on his note to witness of that date. That was the date on which the cotton was hauled from Bromley’s place to Hackett. This credit was entered in 1922, because they did not know what the cotton would bring until that time. Witness did not know the amount to indorse on the note until the cotton was sold to Forbes. Witness was asked what he did toward exercising actual ownership over the cotton after October 5, 1920, when he claimed the cotton was delivered to him, and stated that he went to Spiro to try to sell the cotton to cotton buyers and Bromley delivered to him the cotton.

The plaintiff asked the court to instruct the jury to return a verdict in his favor. The court refused plaintiff’s request. The court gave, on its own motion, over the objection of the appellant, among other instructions, the following: “The court instructs the jury that a verdict should be rendered for the plaintiff Nelson, unless the jury finds the fact to be that, before the filing of the mortgage, the cotton had been delivered to Smith, and in that event you should find for the defendant Forbes.”

At the request of the defendants, the court instructed the jury that, “to constitute a delivery of personal prop-, erty, it is not necessary that there be an actual removal of the goods, but if, at the time of the alleged delivery, it was the intention of the parties that the title and ownership of the property should pass from one to the other and the property is put in the control of the party to whom it is conveyed, and is done openly and notoriously, this constitutes a delivery.” At the request of the plaintiff the court further instructed the jury as follows:

“The court tells you that, under the laws of the State of Oklahoma, any transfer of title of personal property, to be valid, must be accompanied with immediate, actual, visible and continuous change of possession. Every transfer of personal property, if made by a person having at the time possession or control of the property, is conclusively presumed to be fraudulent and void unless it is accompanied by an immediate delivery of said property and followed by an actual -and continued change of possession of the things transferred. In this case, before you can find for the defendants, you must find from a preponderance of the testimony that Bromley not only told Smith to take the cotton, sell it, and apply the proceeds of it upon what Bromley owed Smith, but that Smith immediately and actually took possession and continued a visibly changed possession of said cotton, exercising such rights of ownership over it as to-apprise those dealing with Bromley and the cotton that said cotton was the property of Smith and not the property of Bromley prior to Bromley’s giving the mortgage' to the plaintiff, Nelson,”

The jury returned a verdict in favor of the defendants, and from the judgment in their favor is this appeal.

1. Section 6021 of the Compiled Statutes of Oklahoma for the year 1921 reads as follows: “Every transfer of personal property, other than a thing in action, and every lien thereon, other than a mortgage, when allowed by law, is conclusively presumed, if made by a person having at the time possession or control of the property and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent and therefore void against those who are his creditors while he remains in possession, and the successors in interest of such creditors and against any person on whom his. estate devolves in trust for the benefit of others than himself and against purchasers or incumbrancers in good faith subsequent to the transfer.”

Under the above statute of Oklahoma, as construed by the Supreme Court of that State, there must be an actual and continued change of possession which is open, notorious and unequivocal. Such a change as to apprise the community, or those who are accustomed to deal with the property, that the property has changed hands and the title has passed from the vendor to the vendee. See Sankey v. Suggs, 111 Okla. 293, 239 S. W. 149; Ellett-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; Cochran Grocery Co. v. Harris, 28 Okla. 715, 116 P. 185; Swartzburg v. Dickerson, 12 Okla. 566, 73 P. 282; also Israel v. Day, 41 Colo. 52, 92 Pac. 698. In the case of Sankey v. Suggs, supra, it is said: “Where the facts are undisputed, it is for the court to determine as a question of law whether such facts show such an actual and con tinned change of possession as will render a transfer of personal property valid as against creditors of the seller.”

Under the above statute of Oklahoma, we are convinced that the undisputed testimony in this record shows that there had been no delivery of the cotton to Smith before the appellant Nelson filed his mortgage covering the cotton in controversy. Indeed, there had been no delivery of the cotton in controversy such as is contemplated by the Oklahoma law until the cotton was hauled from Bromley’s barn to Hackett, Arkansas, and sold to Forbes, in 1922. The undisputed testimony shows that Bromley’s mortgages to Nelson covering this cotton were duly filed long before that, to-wit, during the years 1920 and 1921, The court therefore, under the undisputed evidence, should have given appellant’s prayer for an instructed verdict in his favor.

2. Learned counsel for the appellee contend that the only question that .could have been submitted to the jury at the second trial was the issue as to the time of the delivery of the cotton. We do not so construe the language of the former opinion. On the contrary, it occurs to us that the issue to be determined in the trial court, under the directions of this court on the former ‘appeal, was whether the cotton had been delivered to Smith bqfore the filing of appellant’s mortgages. This necessarily involved a mixed question of law and fact to be determined under the Oklahoma law, to which our attention was not directed on the former appeal. But, even if this court had decided on the former appeal that the cotton had been delivered by Bromley to Smith, and had left open for decision only the question of the date when such delivery took place, nevertheless such would not be the law of the case on this appeal, because, on the last trial, the facts were different on the issue of whether or not there had been a delivery of the cotton, from- the facts developed on the first trial. Hence the rule of “law'of the case” cannot avail the appellees. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475-479, 96 S. W. 393.

3. The undisputed testimony shows that the value of the cotton in controversy was $1,000. For the error of the court in refusing to grant appellant’s prayer for a directed verdict in his favor, the judgment is reversed. Inasmuch as the cause seems to have been fully developed, judgment will-be entered here for appellant against appellees in the sum of $1,000.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Fort Smith, Subiaco & Rock Island Railroad Company v. Moore.
    Opinion delivered December 13, 1926.
    1. Master and servant — negligence—jury question. — Whether defendant’s engineer negligently hacked a train at unusual speed, so as to cause a sudden jerk and throw the fireman under the tender, held under the evidence to be a question for the jury, in a suit under the Federal Employers’ Liability Act (U. S. Comp. Stat. §§ 8657-8665).
    2. Master and servant — assumed risk — jury question. — Whether the deceased fireman, killed by being thrown from a tender by a sudden jerk in making a coupling, had assuiried, as a risk of his employment, the danger of falling in going hack over the tender with a bucket of compound while the train was moving, held for the jury.
    3. Trial — construction of instructions. — An instruction that deceased fireman assumed the risk of injury from all, ordinary dangers incident to his employment, but not from the danger arising from the negligence of the railroad’s other employees, held not objectionable, when considered with other instructions, as taking from the jury consideration of whether the danger of going back over the tender while the train was in motion was so obvious that he must have known and appreciated it.
    4. Death — widow’s pecuniary loss. — An instruction as to the right of a widow to recover for her husband’s death, under .the Federal Employers’ Liability Act (U. S. Comp. Stat. § § 8657-8665), held properly limited to pecuniary loss.
    5. Evidence — former testimony. — Where one who testified on a former trial has since died, his testimony, on both direct and cross-examination, may be proved.
    Appeal from Logan Court, Northern District; James Cochran, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    William Moore, fireman, was killed while at his work on a mixed passenger and freight train at Ola, Arkansas, on October 11, 1922. This is the second appeal in the case. The judgment upon the former appeal was reversed because the court erred in submitting to the jury the negligence on the part of the brakeman in failing to give proper signals, or negligence in employing an unskillful and incompetent engineer, when there was no evidence upon which to base instructions submitting'these issues to the .jury. Fort Smith, Subiaco & Rock Island Rd. Go. v. Moore, 166 Ark. 459, 266 S. W. 971. After the mandate of the Supreme Court was filed in the circuit court, an amended complaint was filed and the right to recover was limited to the issue of negligence on the part of the engineer in backing the train, at unusual speed, against some box-cars, which caused the fireman to fall from the tender. It was conceded on the retrial of the case that the suit was brought under the Federal Employers’ Liability Act (U. S. Comp. Stat. §§ 8657-8665).
    Fort Smith, Subiaco & Rock Island Railroad Company operates a line'of railroads from Paris to Ola, Arkansas, and connects with the main line of the Chicago, Rock Island & Pacific Railway Company at Ola, and uses the same station and switch-yards at that point.
    The train crew which was operating the train .on the morning of the accident consisted of A. S. Hendrix, the conductor; E. J. Reed, the engineer; William Moore, the fireman; and Roy Scott and P. T. Little, the brakemen. On the morning in question, the west-bound passenger train on the main line of the Rock Island was due at 5:53 a. m. and' the mixed train in question was due to go out at 7:15 a. m. The passeng'er train on the main line was late, and the crew on the mixed train endeavored to make up its train and take water at the tank on the main line of the Rock Island before going on the line of the defendant en route to Paris.
    According to the testimony of the engineer, he backed his train on one of the sidetracks of the main line and fastened on to a string of cars and pulled them out on the main track. This was done for the purpose of setting out two cars which were wanted to be placed in the defendant’s train. The string of cars, consisting of between 10 and 15 box-cars, was then pulled back from the main line onto one of the sidetracks.
    P. T. Little was on.one of the box-cars, giving signals to the switchman.' These signals were repeated to the engineer by Roy Scott, who stood on the ground. The sidetrack on which the string of cars was standing was down grade towards the east, and it was the intention of the train crew to connect them with four other cars attached to the engine and then shove the whole string of cars further east on the sidetrack so as to he in the clear of trains passing on the main track.
    The engineer was looking out on the right-hand side of the cah, watching Scott giving the signals. As he made the coupling with four cars attached to the engine with the string'of the cars on the sidetrack, he saw something at the hack end of the tender drop out of sight, as he expressed it. The engineer immediately set the air-brake and shut off the air in the engine. The engine was going about two or three miles an hour, and did not go over three or four feet after the engineer applied the brake. The engineer then looked to see if he could see his fireman anywhere, and couldn’t see anything of him. He went back to see if the fireman had climbed down the train further back, and did not see him. He then looked under the tender, and saw the fireman, three or four feet from the hack end of the tender, under the first two wheels. The fireman was lying under the tender, against the sand-beam. The sandbeam had caught and twisted him on his side. One wheel had run over his leg just • above the ankle.
    The water in the tank at Ola was dirty and muddy, and a compound was used to keep it from foaming. It was the duty of the fireman to mix this compound in hot water drained from the boiler of the engine and to pour it in the tank on the tender when they took water. There was an opening at the hack end of the tank to put the compound in. It was the duty of the fireman to mix the compound in a bucket on the engine, and, when the engine stopped to take water, to carry the compound in the bucket over the coal in the tender to the place where he would pour it in the water tank. It was the intention of the engineer to pull off of the main track of the Bock Island after he had pushed hack the string of cars in the clear on the sidetrack, and had coupled the engine to the cars on the main track which were to be attached to his train. The engineer oonld take water from the tank either while his train was on the main track or from the sidetrack on the other side of the tank. The bucket of compound was found on the top of the tender, and was within an inch of the top of the bucket. None of it had spilled out when the engineer had coupled the four cars attached to the engine to the string of cars on the sidetrack. No unusual jar or jerk was caused when the coupling was made.
    The testimony of the engineer was corroborated by that of the two brakemen, Scott and Little.
    According to the testimony of other witnesses for the plaintiff, the body of Moore was found under what was called the sandbeam, aibout-six or eight feet from the rear of the tender. He was twisted under it. His body was found right where the main line joined the sidetrack. One of Moore’s gloves, containing’ some of his finger nails and bits of his fingers, was found between fifteen and twenty feet west of where he was taken out from under the tender. The glove was 'on the right side of the rail and south of it. Moore’s body looked to be torn up, and his clothing was badly torn. His body looked like he had been turned over and over. The cinders and dirt had been rubbed into his wounds. Some blood was found on the rails about two and a-half rails’ length west of where Moore’s body was found under the tender.
    Another witness testified that the body of Moore had been dragged down the track through the cinders and dirt. He saw blood about twenty or thirty feet up the track, while he was looking for the fingers which showed to have been cut off of Moore’s hand. He said that Moore was mangled just the same as a dog, and his overalls were like they had been dipped in a tub of blood and cinders. His body appeared to be all covered with cinders, and his face was swollen and black.
    Evidence was introduced by the defendant tending to show that it was dangerous for a fireman to go over a tender filled with coal while the train was in motion. Other evidence was also introduced by the defendant tending to show that there was no negligence in the operation of the train at the time Moore was killed.
    The jury returned a verdict for the plaintiff in the sum of $5,000, and from the judgment rendered the defendant has duly prosecuted an appeal to 'this court.

      James B. McDonough, for appellant.

      Evans <& Evans and White & White, for appellee.
   Hart, J.,

(after stating the facts). As above stated, it was conceded by counsel for the plaintiff that the suit was brought under the Federal Employers ’ Liability Act, and that the plaintiff’s right to recover was based upon that act.

Upon the former appeal it was earnestly insisted that the defendant was not guilty of negligence in any respect. This court, under the facts proved at the first trial, held that, under the evidence of the plaintiff, the jury might find that the negligence of the engineer consisted, in backing the engine and tender with the four cars attached thereto against the string of cars on the sidetrack at unusual speed, which caused a sudden jerk in the operation of the train and threw Moore from the tender, and thereby caused the wheels of it to run over him and crush him to death under the sandbeam of the tender.

The engineer testified on the first trial, as he did on the retrial of the case, that the engine and tender were only running at the rate of two or three miles per hour, and that he stopped the train within three feet after he applied the airbrake. As we said upon the former appeal, the jury might have found that the engineer’s testimony and that-of the brakeman on this point was not wholly true. The evidence shows that Moore was a stout, active man, only thirty-one years of age, and it is not likely that he would have fallen under the wheels of the tender if it had only been going at the rate of two or three miles an hour and had been stopped within three feet. It will be remembered that the engineer testified that he saw something going over the tender, and immediately applied the brake. He then went back to look for his fireman. The jury might have inferred from this that the engineer saw the fireman fall from the rear end of the tender and knew that he would likely be hurt, for he immediately went back to look for him. The condition of Moore’s body and the fact that cinders and earth appeared to have been rubvbed into his wounds indicated that he was dragged for some distance after he fell from the tender. One of his gloves, with the ends of some of his fingers in it, was found about fifteen feet west of where his body was found. Some blood Was found on the rails still further west. This indicated that Moore’s body was carried under the tender for a much greater distance than three feet.

The jury might have accepted that part of the engineer’s testimony which showed that he saw something fall from the back of the tender, and immediately stopped his train and went back to see if it was not his fireman. When he went hack, he did find the body of the fireman, all mangled, under the tender. From this evidence the jury was warranted in finding that the mangled condition of the body of the fireman, the fact that his glove with bits of finger in it was found fifteen feet west of where his body was, and the further fact that blood was found on the tracks still further west, indicated that the train was going* at a much greater rate of speed than that testified to ¡by the witness, and that, on account of the unusual rate of speed, the impact with the string of cars on the sidetrack was much greater. The jury might have inferred from the testimony that the fireman believed that the engineer would make the coupling just as he testified that he did make it, and that he felt that he could, with safety, go back over the tender with the bucket of compound and be ready to pour it in the tank when the engineer was ready to take water, and that, by reason of the coupling being made with an unexpected and unusual jerk or jar caused by the engineer running the engine and tender at an unusual rate of speed, the fireman lost his balance and fell from the tender.

It is contended, however, that the undisputed proof shows that the bucket of compound was filled within an inch of the top, and that none of it had spilled out, which would have happened had the coupling been made at an unusual rate of speed or had it been accompanied by a sudden jerk. While the engineer and other witnesses testified that none of the bucket of compound appeared to have been spilled, this might not have been accepted by the jury as undisputed evidence. The question of whether any of the bucket of compound had spilled depended upon the recollection of the engineer and the other witnesses on that point. The jury might have found from the attendant circumstances that they had testified falsely on that point, intentionally, or perhaps due to a faulty memory. In other words, the undisputed facts show that the fireman was found with his body crushed and mangled under the tender, and that the engineer thought he saw something fall off of the rear end of the tender. In any event, he saw something fall off, and was so of the opinion that it was the fireman that he immediately applied the airbrake and stopped the train. The jury might have inferred,' as above stated, that this was caused by a sudden and unexpected jerk in making the coupling, and that some of the compound did spill out of the bucket, although the engineer testified to the contrary.

It cannot be said as a matter of law that the fireman assumed the risk of going back over the tender, with a bucket of compound while the train was moving. The jury might have inferred that the fireman believed that thé coupling would be made in the usual way and would be attended by no danger to him, but, due to’the fact that he was in a hurry, the engineer ran the engine and tender with the four cars attached to it at a much greater speed than he thought he was, or at least at much greater speed than he testified to, and thereby caused a sudden and unexpected' jar or jerk of violence when the cars ran against the string of cars on the track. Therefore we think the question of the negligence of the defendant and the assumption of risk by the fireman were proper questions of fact to be submitted to the jury for its determination.

It is next contended that the court erred in instructing the jury on the subject of assumption of risk. The court gave instructions Nos. 5 and 6, which are as follows : j

“5. The deceased, Will Moore, by engaging in the defendant’s service, assumed thje risk of injury from all the ordinary and usual dangers and hazards incident to the employment in which he was engaged, but he did not thereby assume the risks of injury from any danger or hazard arising from the negligence of the other employees of the defendant.
“6. Before the deceased-can be held to have assumed the risk of injury from any danger or hazard arising from the- negligence of any of defendant’s other employees, it must appear from a preponderance of the evidence that deceased knew of such negligence and appreciated the danger therefrom to himself, or that the danger from such negligence to deceased was so obvious that the deceased, in the exercise of ordinary care for his own safety at the time, must have known of such negligence, and appreciated the danger to himself therefrom. ”

Counsel for the defendant insists that these should be treated as separate instructions, and that number 5 is erroneous because it takes away from the jury the consideration of whether, under the facts, the danger was so obvious and patent that the fireman must have known and appreciated it. It will be observed that these two instructions follow each other; and, from the language used, it is apparent that they should be read together, and, when so read together, they harmonize with each other. We cannot see how the jury could have been misled when the two instructions were read and considered together. Each one supplements the other, and they were doubtless so understood by the .jury as well as by the counsel for the respective parties in their .arguments to the jury. St. L. I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375; Kelly Handle Co. v. Shanks, 146 Ark. 208, 225 S. W. 302; and St. L. S. F. R. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910.

It is next insisted that the court erred in giving instruction number 12, which reads as follows:

“If you find for the plaintiff, but do not find that the deceased was guilty of contributory negligence, you will fix the amount of her recovery at such sum as, in your judgment, from the evidence, will fairly compensate her, as the widow of the deceased, for the pecuniary loss, if any, which she has sustained by reason of the death of her husband, such amount not to exceed the amount sued for herein. In fixing such amount you may take into consideration her husband’s age, health, expectancy of life, and his earning power, and also the contributions, if any, which she might reasonably expect from her husband had be survived. If you find for plaintiff, and further find that her husband was guilty of some contributory negligence, you will reduce the damages recoverable by the plaintiff in proportion to the amount of negligence attributable to the deceased.”

Counsel for the defendant insists that this instruction is contrary to the rule laid down by the Supreme Court of the United States in Kansas City Sou. Ry. Co. v. Leslie, 238 U. S. 599, and other cases on the subject. We do not agree with counsel in this contention. The language used in the instruction shows 'that the court expressly limited the right of the widow as a beneficiary entitled to recover to her actual pecuniary loss. The instruction is in accord with the rule on the subject laid down by the Supreme Court of the United States in the cases cited in St. L. S. F. R. Co. v. Pearson, 170 Ark. 842, 281 S.. W. 910, to which reference is here made, that the damages to he recovered by the widow are limited strictly to the financial loss sustained by her.

Error is assigned in giving other instructions by the court and in refusing some asked by the defendant. We do not deem these assignments, however, of sufficient importance to warrant a separate discussion. It is sufficient to say that we have carefully considered them, and find them not well taken. The instructions given by the court fully and fairly submitted to the jury the respective theories of the parties.

Finally, it is insisted that the court erred in allowing the plaintiff to give the testimony of Frank S. Johnson as shown by the bill of exceptions on the former appeal. There was no error in this respect. Johnson was a witness for the plaintiff on the former trial, and was examined and cross-examined at length. His testimony was taken down by the court stenographer in shorthand and transcribed by him in the bill of exceptions. Johnson has since died. Where it is shown that a witness is dead, his testimony given at the former trial between the same parties should be received as evidence. Railway Co. v. Sweet, 60 Ark. 550, 31 S. W. 571.

But it is insisted that the court erred in allowing the cross-examination of Johnson to be read to the jury. There was no error in this. Vaughan v. State, 58 Ark. 353, 24 S. W. 885. In that case the cross-examination as well as the examination was held to be competent.

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


text:
    Liveoak v. Hopper.
    Opinion delivered December 13, 1926.
    1. Sales — title acquired. — Where a chattel is sold by the owner to two persons, he who first lawfully acquires the possession will hold it against the other.
    2. Sales — Delivery.—Delivery of a thing sold is a question of intention of the parties, as manifested by overt acts.
    3. Sales — delivery.—A sale of chattels will be treated as complete where any act has been done which was intended by the parties as a delivery.
    4. Sales — CONSTRUCTIVE delivery. — Where the buyer and seller of an automobile went to á garage and notified the keeper that a sale had been made to the buyer and the keeper agreed to hold it for him, held that an actual delivery was effected, which was good as against a subsequent purchaser.

      5. Sale — possession op third person. — Where a chattel at the time of sale was in the possession of a third person, who agreed to keep it for the buyer, his possession thereafter became the possession of the buyer.
    Appeal from Montgomery Circuit Court; Earl Witt, Judge;
    affirmed.
    STATEMENT OP PACTS.
    F. C. Liveoak recovered judgment before a justice of the peace against John F. Hopper for the possession of a Ford touring car. Hopper appealed to the circuit court, and the case was tried anew there.
    According to the testimony of F. C. Liveoak, the plaintiff, C. H. Shields, owed him a board bill of approximately $167. Shields sold him the Ford touring car in question in payment of his board bill, and gave him a written bill of sale for the car, on the 20th day of January, 1925.
    John F. Hopper, the defendant, was a witness for himself. According to his testimony, he purchased the car from O. H. Shields for $110 on the 19th day of January, 1925. Shields owed Hopper $70, and. he advanced him $40 in addition. On the same day the parties went to the garage of W. C. Barton, where the car was stored for the purpose of being repaired, and Barton and Shields showed Hopper where the car was. The car had a tire off, so that it could not be used. Hopper said, “Now, Mr. Barton, this Shields car is my car. Don’t you let it go out of here without my permission in any way. I am responsible for the garage fees. ’ ’ Mr. Barton replied, “All rig’ht.”
    W. C. Barton was also a witness for the defendant. According to his testimony, John F. Hopper and C. H. Shields came to his garage on the 19th day of January, 192-5. Hopper said, “Mr. Barton, I have bought this car from Mr. Shields. I haven’t got any place to put it, and I-would just like to leave it here. ’ ’ Hopper further stated that he would be responsible for the garage bill. After making the statement, Hopper turned around to Shields and said, “That is right?” Shields replied, “Yes sir.” Again, the witness stated that Hopper said that he had bought the car and that it was his. 'He asked the witness to keep the car there in the garage, and the witness agreed to do so.
    Allen Tolleson was present and corroborated Barton as to what was said and done in the garage.
    The court instructed a verdict for the defendant, and from the judgment rendered in his favor the plaintiff has duly prosecuted an appeal to this court.

      C. II. Ilerndon, for appellant.

      Isaac L. Audrey, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the plaintiff that the circuit court erred in directing a verdict in favor of the defendant.

It is a well settled rule of law that, when the same chattel is sold to two persons, he who first • lawfully acquires the possession will hold it against the other. The plaintiff claims under the bill of sale executed to him by Shields on the 20th day of January, 1925, and the defendant claims under a verbal purchase from Shields on the preceding day. It has been uniformly held by this court that delivery is a question of intention of the parties, as manifested by overt acts, and that a sale of chattels will be treated as complete where any act has been done which was intended by the parties as a delivery. Elgin v. Barker, 106 Ark. 482, 153 S. W. 598; Hodges Bros. v. Bank of Cove, 119 Ark. 215, 177 S. W. 925; and Nance v. Bell, 153 Ark. 229, 240 S. W. 8.

In the case at bar it was established by the testimony of the defendant and by that of two disinterested witnesses that the Ford car, which was in the garage of one of the witnesses, was turned over by Shields to the defendant, and that the owner of the garage agreed to hold the car for the defendant and to charge the repairs on it to him. This constituted an actual délivery of the ear. It was the only delivery of the car which could be made under the circumstances. The delivery was made and sale consummated on the 19th day of January, 1925, which was the day before that on which the plaintiff claimed to have purchased the car. Thus it will he seen that the undisputed facts show that the defendant bought the car and acquired the open and exclusive possession of it before the plaintiff claims to have acquired any title to it.

Again, the general rule is that, where the property, at the time of the sale, is in the possession of a third person, and he is notified of the sale, and agrees to keep it for the vendee, his possession henceforth becomes the possession of the vendee. 35 Cyc. 193.

In Field v. Simco, 7 Ark. 269, there was a complete oral contract of sale of chattels in the hands of a bailee who was notified of the sale. The property was seized by a creditor of the seller after the notice to the bailee but before there was any attempt by the purchaser to remove it. It was held that the bailee’s possession became that of the purchaser, and satisfied the law as against the creditor.

It follows that the judgment must be affirmed.


author: TIart, J.,

text:
    McCoy & Son v. Atkins.
    Opinion delivered December 13, 1926.
    1. Replevin — judgment on delivery bond. — Judgment against the surety on a delivery bond in replevin should be for the value of the property in case it is not returned, instead of for a greater amount named in the bond.
    2. Replevin — judgment against dependant — liability op surety.— In replevin by a mortgagee for mortgaged chattels, judgment against the mortgagor is authorized by Crawford & Moses’ Dig., § 7410, in order that he may prevent foreclosure by paying the judgment, but such judgment does not affect the surety on his delivery bond.
    Appeal from Cleveland Circuit Court; Turner Butter, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is an action in replevin by J. E. McCoy & Son against A. Atkins to recover an automobile and three mules under a chattel mortgage executed by the defendant to the plaintiffs. Upon a former appeal in the case the judgment was reversed because the circuit court had erred in holding that the plaintiffs had not complied with the statute in furnishing to the defendant a verified statement of his account, which is required by our statute as a prerequisite to the foreclosure of a chattel mortgage. McCoy & Son v. Atkins, 167 Ark. 250, 267 S. W. 779.
    Upon a remand of the case the plaintiffs proved the amount of their mortgage debt, and also introduced in evidence a bond, filed in the case by the defendant, with W. W. Mitchell as surety, the body of which is as follows:
    “We undertake and are bound to the plaintiffs, J. E. McCoy and B. T. McCoy, composing the firm of J. E. McCoy & Son, in the sum of one thousand dollars, that "defendant, A. Atkins, shall perform the judgment of the court in this action. ”
    The jury returned a verdict for the plaintiffs in the sum of $1,284.23 debt, with the accrued interest. The .jury further found for the plaintiffs for the return of the property sued for or its value in the sum of $225. It was therefore adjudged by the court that the plaintiffs recover of the defendant the sum of $1,284.23 for his debt, with the accrued interest. It was further adjudged that the plaintiffs recover from the defendant the possession of the automobile and the three mules sued for, and that, in case delivery thereof cannot be made, the plaintiffs recover from the defendant and W. W. Mitchell the sum of $225, the value of said property. The plaintiffs have duly prosecuted an appeal to this court.

      George Brown, for appellant.

      Woodson Mosley, for appellee.
   TIart, J.,

(after stating the facts). It is conceded that the sole issue raised by the appeal is whether or not the circuit court erred in rendering judgment against W. W. Mitchell, the surety in the replevin bond of the defendant, for the sum of $225, which the proof showed -to be the value of the mortgaged property, instead of for $1,000 as named in the 'bond.

It is insisted by counsel for the plaintiffs that W. W. Mitchell, the surety on the delivery bond given by the defendant in the replevin suit, is liable for the full amount named in the bond instead of the value of the property, and that the court erred in only rendering judgment against Mitchell for the value of the property as found by the jury. We cannot agree with counsel in this contention. The liability of Mitchell as surety on the delivery bond in the replevin action is fixed by the terms and conditions of his bond. The terms of a delivery bond in a replevin action are fixed by statute, and the bond signed by Mitchell in this action is in conformity with the statute. Section 8655 of Crawford & Moses’ Digest reads as follows:

“In all actions for the recovery of personal property, where the defendant has given a delivery bond as now provided for by § 8649, the court or jury trying the cause may not only render judgment against the defendant for the recovery of the property, or its value, together with all damages sustained by the detention thereof, but ‘also, upon motion of the plaintiff, render judgment against the sureties upon his said delivery bond for the value of the property, and also damages as aforesaid, as the same may be found and determined by the court or jury trying the case.”

Mitchell, by the terms of his bond, bound himself unto the plaintiffs in the sum of $1,000 that the defendant, A. Atkins, should perform the judgment of the court. Under the provisions of § 8655, relating to actions in replevin, it was the duty of the court to render judgment against the defendant for the recovery of the property or its value, and also, upon motion of the plaintiff, to render judgment against the surety on the delivery bond for the value of the property and the damages sustained by the detention thereof. In the case at bar no damages were proved, and the value of the property was fixed by the jury, upon the evidence introduced, at $225. The cir-cult court correctly rendered judgment in favor of the plaintiffs against Mitchell for this amount.

It is true that the jury also found for the plaintiffs against the defendant in the sum of $1,284.23 for their debt, but the surety on the delivery bond was not concerned with the amount of the mortgage debt owed by the defendant to the plaintiffs. This, under our statute, is only done for the benefit of the defendant in order that he may pay the judgment for the balance due on his mortgage indebtedness and thereby prevent a foreclosure of the mortgage. Crawford & Moses’ Digest, § 7410. This part of the .judgment, however, does not affect the surety' on the delivery bond. Judgment can only be' rendered against him for the value of the property in case it is not returned by the defendant as provided in the judgment. Spear v. Ark. N. B., 111 Ark. 29, 163 S. W. 568; Bowser Furniture Co. v. Johnson, 117 Ark. 496, 175 S. W. 516; Barnett Bros. v. Henry, 133 Ark. 531, 202 S. W. 707; and Jones v. Keebey, 159 Ark. 586, 252 S. W. 551.

It follows that the judgment will be affirmed.


author: Smith, J.

text:
    Road Improvement District No. 7 v. St. Louis-San Francisco Railway Company.
    Opinion delivered December 13, 1926.
    1. Railroads — notice to construct highway crossing. — Under Road Acts 1919, No. 292, § 24, imposing upon any railroad running through a road improvement district the duty to construct highway crossings, held that no notice to a railroad company to construct such crossings was necessary where plans for the crossings had been prepared and filed with the county clerk, of which the railroad was required to take notice.
    2. Railroads — construction or highway crossings. — Where Road Acts 1919, No. 292, creating a road improvement district, imposed upon the railroad company the duty of constructing highway crossings, and it failed to discharge such duty, the improvement district, in constructing such crossings, was not a volunteer, and was entitled to recover the cost thereof from the railroad company.

      Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    reversed.

      Otis Gilleylen, for appellant.

      King, Mahaffey £ Wheeler, for appellee.
   Smith, J.

Appellant, Road Improvement District No. 7 of Little River County, filed a complaint in the circuit court of that county which contained the following allegations:

Plaintiff is a corporation created hy special act No. 292, passed at the 1919 session of the General Assembly (Acts of 1919, page 1205), for the purpose of constructing and improving certain roads within the boundaries of the road district. The defendant, St. Louis-San Francisco Railway Company, operates a line of railroad through said district. In the construction and improvement of the roads in the district, it became necessary to construct the improved highway across the tracks of the railway in four places, which were named. The plans and specifications for the proposed improvement which the commissioners of the district were required to have prepared, included plans and specifications for the construction of the road crossings, and these plans and specifications were duly filed with the clerk of the county court as required by said act 292. Section 24 of act 292 imposed upon any railroad running through the district the duty to construct crossings for the highway over its tracks, and provides that such crossings shall be of the same material and shall be constructed in the same manner as the highway crossing the tracks.

The complaint further alleged: ‘ ‘ That on the............day of .................., 1920, the plaintiff notified defendant, orally, through its section foreman, J. A. Howard, and F. F. Stroud, its station agent at Foreman, of its duty to construct said road across its tracks at the aforesaid crossings, and requested it to make, build and construct said crossings according to the plans and specifications for the construction of said highway on either side of its said track, including the plans and specifications for the crossing on said track. That said defendant then undertook to construct said, crossings according to said plans and specifications; that, in furtherance of its said undertaking, it placed the gravel on the aforesaid crossing number one. That thereafter it failed, neglected and refused to complete the making and crossing of its track at crossing number one, and failed, neglected and refused to make, build or construct crossings numbers two, three and four, or any part thereof.”

That, by reason of defendant’s failure, neglect and refusal to construct the crossings, it became necessary for the road district to construct said crossings at it own expense., an itemized statement of which was given, aggregating $1,929.36.

The complaint further alleged that, in order to expedite the work of building the roads, it was necessary that the crossings be constructed without delay, and that to have delayed the construction thereof would have worked a great financial loss and irreparable injury to the district, for which it had no adequate remedy, and that, after the wrongful and unlawful failure and refusal.of the raiLroad company to construct said crossings, the same were made by the district and paid for by it, the payment' being made under compulsion of the circumstances.

Demand for payment of the cost of the construction was alleged, and the refusal’of payment by the railroad company, whereupon the district prayed judgment for the cost to it of the crossings.

A demurrer was filed by the railway company, which was sustained by the court, and, the district standing on its complaint, the same was dismissed as beiixg without equity.

Section 21 of act 292 provides that “whenever any of said highways shall cross the track of any railroad or tramroad, the company owning such track shall make such crossing of the same material and in the same manner as the highway on either side thereof, and shall bear the cost of such crossing and of its maintenance.”

Under this statute it was, and is, the duty of the railway company to construct and maintain these crossings. The validity of the statute and the binding effect of the section quoted is not questioned. If it were, the cases of Hahn & Carter v. Gould S. W. Ry. Co., 113 Ark. 537, 168 S. W. 1064, and St. Louis S. W. Ry. Co. v. Royall, 75 Ark. 530, 88 S. W. 555, fully sustain the statute.

It is insisted; however, that the demurrer was properly sustained because the district was a mere volunteer in the construction of the crossings, and cannot recover on that account. It is argued that the district was a mere volunteer because it gave no valid or sufficient notice to-the railway company to discharge this duty, and it is said that this notice should have been given, and, upon failure to comply therewith, the railway company could .and should have been compelled by mandamus to construct the crossings. We think that no notice to the railway company was necessary to make the duty to construct the crossings binding upon it. This duty was imposed by a statute of the State, of which the railway company must take notice. Little Rock & N. R. R. Co. v. Little Rock, Miss. R. & T. R. Co., 36 Ark. 663, 677; Bevens v. Baxter, 23 Ark. 387; Carroll County v. Reeves Construction Co., 154 Ark. 434, 242 S. W. 821.

The complaint alleges, and the demurrer admits, that the plans for the crossings had been prepared and filed with the clerk of the county court of the county in which the district was situated, pursuant to the requirements of, the statute. The railway company, like all other owners of property in the district, was therefore charged with notice of these plans, and no additional notice was necessary to make the requirements of the statute binding on the railway company.

The complaint alleges that the railway company had knowledge that the work, pursuant to the plans, had so far proceeded that the installation of the crossings had become necessary in the orderly execution of the plans of the district, and it thereafter failed to discharge the duty imposed on it by the statute to construct the crossings. This being true, the district was not a volunteer in constructing the crossing’s. It was compelled, to do so under compulsion of the circumstances, as was said in the case of Hahn & Carter v. Gould S. W. Ry. Co., supra.

If it be conceded, as is insisted by appellee, that the road district might, by mandamus, have required the railway company to construct the crossings, it does not follow that the road district was limited ’to that remedy. The complaint alleges that delay in the construction of the crossings would have delayed other- construction work and have entailed great and irreparable loss to the district, and the district was therefore compelled, by compulsion of the circumstances, to discharge a duty which the law imposed upon the railway company.

In 6 R. C. L., page 588, chapter on Contracts, subtitle Quasi Contract, .or Contract Implied by Law, it is said: ‘ ‘ * * * Certain legal duties, though of a contractual nature,, are not based on consent. These, as has already been stated, are sometimes spoken of as contracts implied in law, but are more properly called quasi contracts, or constructive contracts. They are contracts in the sense that they are remediable by the contractual remedy of assumpsit. In the case of such contracts, the promise is purely fictitious, and is implied, as has already been suggested, in order to fit the actual cause of action to the remedy. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. The intention of the parties in such case is entirely disregarded,, while, in cases of express contracts and contracts implied in fact, the intention is of the essence of the transaction. As has been well said, in the case of consensual contracts the agreement defines the duty, while in the case of quasi contracts the duty defines the contract. The duty which thus forms the foundation of a quasi contractual obligation is frequently based on the doctrine of unjust enrich.ment.”

Here, under the allegations of the complaint, the road district has performed a work essential to its own existence and the performance of its functions, and this was a work which the railway company was required ¡by law to perform, but failed and refused to do. The road district was therefore not a volunteer, and the demurrer to the complaint should have been overruled.

The judgment of the court below is therefore reversed, and the cause will be remanded, with directions to overrule the demurrer.


text:
    Clay v. England.
    Opinion delivered December 13, 1926.
    Drains — construction of additional outlet. — Where a new canal was proposed to furnish an outlet for a drainage system, which outlet was not available until after the drainage improvement, organized under Crawford & Moses’ Dig., § 3607 et seq., had been completed, it was not an extension of a canal originally constructed nor a widening or deepening of ditches that were originally completed, and therefore was not authorized by § 3630, Id.

    Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Ben B. Morris, for appellant.
   Smith, J.

The Keo-E>ngland Drainage District No. 4 of Lonoke County was organized in 1917 under act 279 of the Acts of 1909 ($§ 3607 et seq., C. & M. Digest) and the acts amendatory thereof. The district embraces about 15,000 acres of land, and the benefits assessed totaled $143,970, against which bonds were sold to the amount of $65,000, the proceeds of which were used in paying the construction costs of the improvement. All the construction work contemplated by the original plans, upon which the assessment of betterments was based, was completed in 1919, and no work has been done since that time, except to clean out the canals.

The principal drainage canal begins at the corporate limits of the town of Keo, and extends in a southeasterly direction to the boundary line between Lonoke and Jefferson counties, where it empties into Wabbaseka Bayou. This canal is about seven miles long. In addition, there are certain laterals emptying into the main canal, having a combined mileage of about eight miles, so that the total length of all the canals of the district amounts to fifteen miles.

.After the completion of the improvement, it became apparent that the outlet provided in the Wabbaseka Bayou was insufficient to take care of the water which the various canals carried and emptied into the Wabbaseka Bayou, as a result of which certain lands in the district are frequently overflowed in the spring, during planting time. As a result of this condition, the improvement has not given the expected relief. • On the contrary, considerable land in the district is damag'ed- by 'the improvement rather than benefited by it, as was contemplated and as would have been the case had the outlet proved sufficient.

At the time the original plans were adopted Wabbaseka Bayou was the only available outlet, and was thought to be sufficient, but, from the completion of the improvement, this outlet has been found to be inadequate. Since the completion of the canals a part 'of the headwaters of Plum Bayou, which runs along the west boundary of the district, have been diverted into the Arkansas River, as a result of which the high-water mark of this bayou has been so lowered that it' has been ascertained, by a survey made for that purpose, that this bayou may also be used for outlet purposes for the drainage district, thus diminishing the quantity of surface water carried and poured into Wabbaseka B.ayou.

The facts stated are shown both in the report of the district’s engineer and in his testimony given at the trial from which this appeal comes.

After the engineer had made his survey and report, showing that an additional outlet was available, the commissioners of the district filed a petition with the county court of Lonoke County praying an order authorizing the levy of additional taxes upon the lands of the district to pay the construction cost of the additional outlet into Plum Bayou, and, after due notice to the landowners, the petition was heard and granted.

Thereupon appellant, who is a landowner in the district, brought this suit in the chancery court of Lonoke County to enjoin the commissioners of the district from proceeding with the construction of the new canal, alleging that the county court was without jurisdiction to authorize it.

Under the original plan, a lateral numbered 2 in the northern part of the district ran into the main canal, and it is now proposed to construct the additional outlet from a point in this lateral to Plum Bayou. This new canal would be about 2% miles long, and the estimated cost of the extension is $14,685. It is proposed to issue additional bonds to construct this additional canal, but its cost, added to the cost of the original improvement, would not exceed the betterments originally assessed.

The answer filed by the commissioners admitted all the allegations of the complaint except one, to the effect that the proposed additional canal constitutes an original and independent construction work, but alleged, on the contrary, that this canal was incidental and essential to the original drainage system, and thus, unless constructed, the money already expended would be largely wasted.

The cause was submitted upon the pleadings and the testimony of the engineer. This testimony was to the effect that the main canal’s outlet was never adequate, but was the only one available when the plans for the improvement were made, and-that, because of the inadequate outlet, a large body of land in the district not only derives no benefit from the improvement, but,, on the contrary, is greatly damaged by the overflowing of the canal. • ITis testimony establishes the fact that an additional outlet may now be had by constructing an additional canal draining into Plum Bayou, as stated above.

The court found, from the testimony of the engineer, that the proposed additional canal is incidental and essential, and not original and independent, to the original drainage system, and that its construction was authorized by the drainage law. The complaint of appellant was dismissed as being without equity, and he has appealed.

The proceeding whereby the county court authorized the construction of an additional canal was had under ■§ 3630, C. & M. Digest, and the question for decision is whether that section of the statute conferred jurisdiction on the county court to make the order authorizing this work.

This section of the statute was § 22 of the drainage acts of 1909 (Acts 1909, page 829), and reads as follows: “The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving’ the same, of keeping the ditches clear from obstructions,- and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district. To this end the commissioners may, from time to time, -apply to the county court for the levying of additional taxes. Upon the filing of such petitions, notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the district embraces lands, and any property owner seeking to resist such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county -court.”

This section of the drainage act was thoroughly considered in the case of Indian Bayou Drainage District v. Walt, 154 Ark. 335, 242 S. W. 575, in which case the commissioners of the drainage -district sought to construct an additional canal ánd outlet. In that case it is recited that the canal which the commissioners proposed to dig’ was not an extension of the canal originally constructed pursuant to the plans of the district, nor was it a widening or deepening of the ditches that were already completed. What was there said is equally true here of the proposed new outlet. It was not a part of the plans of the district; on the contrary, it affirmatively appears that the purpose of the new canal is to furnish an outlet which was not available when the original plans were made and approved, on which the assessment of benefits was based, nor did this outlet become available until after the improvement had been completed.

In the Indian Bayou case, supra, it was said that “specific authority for making an improvement of this character must be found in the law, and it is impossible to find in the language of § 3630, supra, giving the words ‘ extending, widening, or deepening, ’ their plain and natural meaning, any authority for the construction of a new and independent improvement * * It was there further said that this section of the statute conferred power upon the commissioners to preserve the drainage system after it had been completed, but that no power was conferred to construct a new and independent drainage canal.

The construction given § 3630, supra, in the Indian Bayou case was reaffirmed in the case of Bayou Meto Drainage District v. Ingram. 165 Ark. 318, 242 S. W. 575. In that case the plans were amended to afford an additional outlet for drainage, and it was contended that this could not be done, once the plans had been made and the assessment of benefits confirmed. After stating that authority was conferred by the statute to make such changes in the plans.as were found necessary to afford drainage to the lands in the district after the approval of the plans and the confirmation of the assessment, it was said: “Viewing the statute in that light, we think that the language of the sections referred to is sufficient to authorize a change of plans and an extension of the boundaries at any time before the completion of the improvement as originally planned, and that if, at any time before that point is reached, it is found that the scheme will prove abortive unless there be an extension, and that other lands will be benefited by sneh extension, further proceedings may be had to that end.”

It was there further said: “If the statute authorizes the change of plans and" extension of boundaries, after the approval of the original plans and the assessment of benefits, then it follows that it may be done at any time before the improvement is completed, for there is no other period in the proceedings at which the authority may be limited.”

It thus appears that, while authority is conferred to make changes in the plans of the improvement (subject to the duty to reassess betterments to. conform thereto), when such changes are found necessary as the work progresses, this authority is at an end, when the plans, original or revised, have been executed.

So here, while the testimony of the engineer shows the necessity for the new outlet to make the proposed improvement a success and to afford the relief contemplated in the organization of the district, it is also shown with equal certainty that this new canal was no part of the plans of the district as originally approved or subsequently revised, and the proceeding in the county court for its construction was not instituted until after the district was a completed project.

The proposed outlet may be necessary and the project without it may be unsuccessful, but this proves only that the original plans, pursuant to which the improvement was constructed, were defective; but this áffords no authority, under the statute quoted, as construed in the cases cited, to dig an additional canal after 1he plans have been fully completed.

It follows therefore that the court was in error in dismissing the complaint of appellant, and the decree is reversed, with directions to grant the relief prayed.


author: Humphreys, J.

text:
    Bank of DeQueen v. Troyer.
    Opinion delivered December 13, 1926.
    1. Judicial sales — recital op condition in deed. — A commissioner’s deed need not recite that the land is sold subject to the lien of a bank as prescribed in the order of sale, since the deed, though absolute in form, conveys no greater title than the order of .sale on which it is based.
    2. Appeal and error — harmless error. — The question whether a commissioner’s deed on sale of land was invalid for failure to recite that the sale was subject to the lien of a bank was immaterial where the supposed paramount lien was disallowed in another case, as, with the disappearance of that lien, an absolute title passed by the sale.
    3. Judicial sales — authority op commissioner in succession. — An order of the court to a commissioner to make a deed on sale of land under foreclosure was binding on his successor, who might make a deed without an additional order of court, under Crawford & Moses’ Dig., § 2196.
    Appeal from Sevier Cbancery Court; C. E. J olmson, Chancellor;
    affirmed.

      Lake, Lake & Carlton, for appellant.

      Abe Collins, for appellee.
   Humphreys, J.

This is an appeal from a decree approving a deed to 217 acres of land, executed on the '27th day of April, 1925, by D. C. Cypert, as commissioner, successor to W. H. Wardlow, commissioner, said deed being- based upon the sale of said lands by W. H. Wardlow, commissioner, to Lillian M. Troyer, the appellee herein, pursuant to a decree of foreclosure and order of sale to satisfy a lien upon said land in favor of said appellee for $604.85. The decree of foreclosure and order of sale was entered of record pursuant to a mandate of this court, in the case of Troyer v. Cameron, 160 Ark. 421, 254 S. W. 688, at the October, 1923, term of the Sevier Chancery Court. The commissioner sold the land on March 15,1924, after due advertisement, and appellee herein became the purchaser for the sum of $800. When the commissioner’s report of sale was filed, one of the appellants herein, the Bank of DeQueen, appeared and filed an intervention asking that it be subrogated to the lien of Henry Moore, Sr., which was a prior lien to that of appellee, and which prior lien had been satisfied by C. W. and Clara R. Cameron with money borrowed from it. The chancery court of Sevier County sustained the intervention of the Bank of DeQueen by declaring the latter !s right to subrogation. Appellee herein appealed from' that decree, and this court, on appeal, in the case of Troyer v. Bank of DeQueen, 170 Ark. 703, 281 S. W. 14, denied the right of subrogation to said bank, and reversed the decree of the chancery court, and remanded the cause with instructions to enter a decree dismissing the complaint of said bank for the want of equity. During the time the case of Troyer v. Bank of DeQueen, supra, was pending in the Supreme Court, the chancery court approved the sale of the land made on the 15th day of March, 1924, to the appellee herein, subject to the supposed prior lien of said bank, and ordered W. H. Wardlow, commissioner, to make a deed to Lillian M. Troyer, appellee herein. Before presenting- the deed, the commissioner was succeeded, as clerk and ex officio commissioner, by D. C. Sypert. At the April term, 1925, of the Sevier Chancery -Court, D. C. Sypert produced in open court his deed to Lillian M. Troyer, appellee herein, for approval. The deed was absolute and unconditional and made no reference to the supposed rights of the Bank of DeQueen. This deed was approved by the Sevier Chancery Court on the day it was presented.

Appellant contends for a reversal of the decree approving the deed, because the deed, made pursuant to a conditional order of sale, did not recite the condition contained in the order, and because the deed was made without any special order of the court directing D. C. Sypert, as successor to W. H. Wardlow, as commissioner, to execute same.

The condition in the order of sale was that the land should be sold subject to the lien of the Bank of DeQueen, but it was not necessary to recite the condition in the deed to make it a valid instrument. The deed, though absolute in form, conveyed no greater title than the order of sale upon which it was based. The form of the deed is immaterial now, however, for the supposed prior and paramount claim of the bank was denied to it in the case of Troyer v. Bank of DeQueen, supra, and, with the disappearance of the aforesaid lien, an absolute title passed under the order of sale and subsequent sale to the appellee herein, who was the purchaser.

The order of the court to W. H. Wardlow, to make the deed as commissioner, was binding upon his successor in office; so D. C. Sypert, his successor, had the right to make the deed without an additional order of the court directing him to do so. Authority was conferred upon him to make the deed by § 2196, Crawford & Moses ’ Digest, which is as follows:

“The clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex officio masters and commissioners thereof in each of the said counties,” etc.

No error appearing, the decree is affirmed.


text:
    Neil v. Neil.
    Opinion delivered December 13, 1926.
    1. Partition — right to use private road. — Plaintiff held under the evidence to have acquired the right to use a private road across defendant’s land as part consideration in a partition of land with defendant.
    2. Frauds, statute of — operation as engine of fraud. — An oral agreement for the partition of lands, including the right of one party to use a private road across another’s land, is not within the statute of frauds, which cannot he used as a means of fraud.
    3. Homestead — abandonment—adverse possession, of right-of-way. — In view of the fact that a husband may abandon his homestead, a right-of-way over it may be acquired by adverse user for the statutory period of seven years.
    Appeal from Benton Chancery Court; Lee Seamster, Chancellor;
    reversed.

      W, 0, Young and Bice (& Bice, for appellant.

      John W. Nance, for appellee.
   Humphreys, J.

Appellant instituted this suit against appellee in the chancery court of Benton County to enjoin him from obstructing a private road on the south side of the south half of the northwest quarter of section 6, township 18 north, range 29 west, in said county. It was alleged in the complaint that appellant acquired the right to the use of said road as a part of the consideration in the division between them of the north half of the northwest quarter and the northwest quarter of the southeast quarter of said section, which was inherited from their father, and used by him from 1892 until November, 1924, when appellee wrongfully and unlawfully obstructed the road by placing stobs and wire across same. .

Appellee filed an answer, denying that appellant acquired an easement in the said road as a part of the consideration in the partition of the three forty-acre tracts aforesaid, which they inherited from their father, or that he acquired a right therein by user for more than seven years; and, ¡by way of further defense, pleaded the statute of frauds, and that said road was upon and across his homestead.

The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties, which resulted in a decree dismissing appellant’s complaint for the want of equity.

An appeal from the decree has been duly prosecuted to this court, and the cause' is here for trial ele novo.

Appellant and appellee, together with their sister, inherited six forties of land from their father, who died in 1892. They conveyed their undivided interest in three of the forties, not herein described, to their sister, as her full share in the estate, in consideration for her undivided interest in the north half of the southwest and the northwest quarter of the southeast quarter in said section. Prior to the death of their father, appellant purchased the west half of the northeast quarter and appellee the south half of the northwest quarter of said section from Mm. They were farmers, who resided upon the respective tracts they purchased from their father. Before and at the time of the purchase a private road was on the south side, adjoining the south line of the south half of the northwest quarter and the southwest quarter of the northeast quarter of said section, used for ingress to and egress from the wire road on the south side of the farm leading* to the town of Lowell, the nearest market place to the farm. Each of the parties herein planted apple orchards on a part of the lands they purchased, and after-wards on a part of the lands they inherited, and used the road in question to haul out their products, in order to avoid the hill pulls on the north road leading* from appellant’s residence on the northwest quarter of the northeast quarter of said section to the wire road. The north road referred to was later converted into a public road and widened by donations of land by appellee and others who owned adjoining lands. In the division of the three forties between appellant and appellee, appellant received the northeast quarter of the southwest quarter, or the middle forty, and the north 30 acres of the northwest quarter of the southeast quarter, and appellee received the northwest quarter of the southwest quarter and the south 10 acres off of the northwest quarter of the southeast quarter of said section. Deeds were made by each to the other in order to effect the division, but no mention was made of the roads in the deeds. According* to this division, appellee received a full forty on the main wire road and ten acres on the back side of the farm, whereas appellant received forty acres in the middle and thirty acres on the back side of the farm. Both appellant and appellee testified that it was agreed in the division that appellee should have a road across the south side of the middle forty, next to the south line thereof, so that appellee might have access over same to the ten-acre tract on the back side of the farm, which road was used by him for that purpose until he sold the ten-acre tract.

Appellant testified that he agreed to the partition in consideration that he be allowed the free use of the road on the south side of the south half of the northwest quarter of said section as a means of ingress and egress to and from his land; that it was and is the only practical way to haul apples from his orchard-to the nearest shipping point; that his orchard produced from -35 to 40 cars of apples a year, yielding in money between eleven and sixteen thousand dollars annually; that he has used the road under agreement since 1892 until appellee closed it up in 1924.

Frank Wilmoth testified that he is acquainted with the road in controversy; that it had been in use for 43 years; that, during’ the year 1892, a short time after the division of the three forties between appellant and appellee, they both told him that the agreement was for each to have a road over the lands of the other; that appellant took charge of the road in question and used it the entire time he lived in the neighborhood, which was about seven years; that, during that period, he heard them make the statement detailed above with reference to the division, on several different occasions.

John Walker testified that he lived on the farm for five years, and during the time heard appellee say, on several occasions, that the road in question was agreed upon in the division of the property; that, on one occasion, he heard appellee tell appellant to work it, as it was his road.

John Neil, a son of appellant, testified he had heard both his' uncle and his father state each had given the other a road through the land in making the division.

Appellee testified that the only road involved in the division of the-three 40-acre tracts between himself and his brother was the road on the south side of the northeast quarter of the southwest quarter which was awarded to him by his brother as a passway to and from the 10-acre tract he got on the south side of the northwest quarter of the southeast quarter of said section; that he never gave appellant free nse of the road in question as part consideration of the division; that occasionally he had permitted him to use the road for a particular purpose, but that his entire use thereof was permissive and not under right.

The first question presented for determination on this appeal is whether appellant acquired the free use of the road in question as part consideration for making the division. The testimony of appellant and appellee is in conflict on this point. Appellant is corroborated by the testimony of his son and two disinterested witnesses, Frank Wilmoth and John Walker. Also by the use of the road for more than seven years. Also by the probability that he would not have accepted the middle and back part of the land in the division if he had not acquired a practical and short route to haul his produce to market, especially in view of the fact that he gave Ms brother an easement across one of his forty-acre tracts to the ten-acre tract he received on the back side of the farm.

The next question presented for determination on this appeal is whether the statute of frauds is applicable to the facts in the case. It cannot be successfully pleaded and applied in the case, because it would amount to a fraud to allow appellee to retain the property he acquired in the division in violation of the agreement, although not in writing. It is not allowable to use the statute of fraud as a means of fraud. Keatts v. Rector, 1 Ark. 391.

The next and last question presented for determination on this appeal is whether a right-of-way can be acquired over a homestead by user. The Homestead Act of March 18, 1887, has reference only and solely to conveyancing. Farmers’ Building & Loan Association v. Jones, 68 Ark. 76, 56 S. W. 1062. Notwithstanding said act, the husband may abandon his homestead. Stewart v. Pritchard, 101 Ark. 101, 141 S. W. 505. In view of the fact that a husband may abandon Ms homestead, it follows, as a related principle, that a right-of-way can be acquired over it by adverse user for the statutory period of seven years.

On account of the errors indicated the decree is reversed, and the cause is remanded with directions to enjoin the obstruction of the road.


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    Louisiana Petroleum Corporation v. Oil Well Supply Company.
    Opinion delivered December 13, 1926.
    1. Estoppel — representation as to title. — Though the seller of a drilling rig, having no lien, represented to another contemplating extension of credit to the purchaser that the latter owned the rig, the seller will not he estopped to claim title under a subsequent repurchase.
    2. Estoppel — representation.—The fact that the purchaser of a drilling rig owed the entire purchase money does not imply that the seller’s representation that the purchaser owned the rig was false, where no lien or title was reserved for the purchase money.
    3. Evidence — weight of testimony. — Courts and juries need not accept the statements of witnesses, but may weigh the testimony and test the credibility in the light of all the facts and circumstances in the particular case.
    4. Appeal and error — remand for new trial. — Where the evidence raised a disputed question as to the ownership of property attached, and the trial court upheld the attachment upon an untenable ground, the cause will be remanded for a finding on the question of ownership.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      Patterson & Rector, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Humphreys, J.

This suit was instituted by appellee against W. E. Hall and H. P. Gann, who composed the partnership of Hall & Gann, in the second division of the circuit court of Union County, for a balance of $7,257.90 due it upon open account; and they sued out an attachment upon the ground of the nonresidence of W. E. Hall, which was directed by the clerk of said county to the sheriff of Clark County, and levied upon a rotary drilling rig and equipment complete, as property belonging to the said partnership of Hall & Gann.

The appellant and Dr. E. A. Sarter filed an interplea in the attachment proceeding, claiming title to said drilling rig and equipment. Dr. E. A. Sarter claimed an undivided one-sixth and appellant an undivided five-sixths interest in the property levied upon, and they executed a retaining bond in the sum of $5,000 in statutory form, conditioned for the return of the property to the sheriff in the event it should be found to be the property of Hall & Gann.

W. E. Hall filed an answer, denying the indebtedness and all other material allegations in the complaint.

Appellee filed an answer to the interplea, denying that Dr. E. A. .Sarter and appellant owned the property and that same was wrongfully levied upon and seized as the property of Hall & Gann, and prayed for a dismissal of the interplea, and for general relief.

When the case was called for trial a judgment was rendered by default against H. P. Gann for $7,257.90, and against W. E. Hall for the same amount, by consent. No appeal has been prosecuted to this court from said judgments. The issue of the ownership of the property levied upon was then submitted to the trial judge, sitting as a jury, which resulted in the finding that appellant was estopped from claiming any interest in the drilling rig and equipment as against appellee, as a creditor of the partnership of Hall & Gann. A decree was rendered, in accordance with this finding, dismissing the interplea and sustaining the attachment as to an undivided five-sixths interest in said rig and equipment, and ordering it sold as the property of Hall & Gann. A decree was rendered, in accordance with this finding, dismissing the interplea and sustaining the attachment as to an undivided five-sixths interest in said rig and equipment, and ordering it sold as the property of Hall & Gann to satisfy the judgment rendered upon the open account, from which is this appeal.

■ Appellant contends for a reversal of the judgment upon the issue of ownership for the alleged reasons:

First, that it did not estop itself from claiming an undivided five-sixths interest in the drilling rig and equipment toy representation of its president and manager that said property was owned toy Hall & Gann.

Second, that the undisputed testimony shows that said property belonged to it at the time same was seized under the attachment.

(1). As we understand the record in this case, the finding of fact was made and the judgment was rendered by the court upon the theory that appellant estopped itself to claim an undivided five-sixths interest in said property through the representation made by W. E. Hall, its president and manager, to appellee, that Hall & Gann owned the rig and equipment, as a basis for obtaining a line of credit for said partnership. The undisputed evidence does show that W. E. Hall made such representation to appellee, but this representation cannot be construed into an agreement not to afterwards sell the rig and equipment. • The fact, if true, that Hall & Gann had purchased the rig and equipment from appellant on credit, and owed the entire purchase money for same, did not necessarily imply that the representation was false, for it seems that no lien was retained for the purchase money, and that, at the time the representation was made, Flail & Gann actually owned the rig and equipment, free from incumbrances. Under this interpretation of the testimony, it cannot be said that appellant estopped itself from claiming title to the rig and equipment by subsequent purchase, if such purchase was in fact made, on account of representations made by its president and manager, W. E. Hall, to appellee in order to obtain a line of credit for said partnership.

(2). We cannot agree with learned counsel for appellant that the undisputed testimony in the record reflects that the resale of the rig and equipment to it by Hall & Gann was a complete sale, or a bona fide sale. Courts and .juries are not compelled to blindly accept the statements of witnesses. In arriving at conclusions they are allowed to weigh the testimony and test the credibility of witnesses, under well defined rules, in the light of all the facts and circumstances in a particular case. Although W. E. Hall testified positively that appellant sold the rig and equipment to Hall & Gann, and that Hall & Gann, being unable to pay for same, turned it back to appellant for the purchase money, yet there are circumstances in the case tending to show that appellant never owned the rig at any time; that, when the rig was first purchased from the Latex Iron Works of Arkansas, a note for $5,000, payable to W. E. Hall, and Hall’s individual notes for $1,000, were given as payment for the rig; that the series of transactions whereby the Louisiana Petroleum Corporation attempts to trace its claim of title to the rig and equipment were individual transactions of W. E. Hall and not transactions for the several corporations in which he owned a majority of the stock, and which he controlled and dominated. In view of the fact that the testimony in the record presents a disputed question of fact as to the ownership of the property, and in view of the further fact that the trial court, sitting as a jury, did not determine this issue, but bottomed the judgment, on the question of estoppel, the judgment must be reversed, and the cause remanded for a finding as to whether there was a complete resale of the property to appellant by Hall & Gann, and, if so, whether it was a bona fide sale.

The judgment is accordingly reversed, and the cause is remanded for a new trial.