text:
    Ross v. Lincoln Savings & Loan Association.
    Opinion delivered February 11, 1929.

      Harrison, Smith & Taylor, for appellant.

      Vincent L. Boiscmbm, Evan W. Crawford and C. A. Cunningham, for appellee.
   Humphreys, J.

This suit was brought upon a note for $3,500 and accumulated interest executed by appellant and payable to the Lincoln Housing Trust, a Missouri business trust, at its home office in St. Louis, Mo., and to foreclose a deed of trust of even date on Blythe-ville property, in Arkansas, which was given to secure said note. The note was non-negotiahle, bore interest at the rate of á per cent, per annum, computed annually in advance. Appellant agreed to pay the note in the following way:

“The sum of $26.25 is to be paid on the 18th day of each month after date hereof until such payments shall repay the said sum of $3,500 (the amount of the loan), and all interest computed as aforesaid. The interest due each year shall, at the end of the year, be deducted from the aggregate ¡of said monthly payments made during the year, and the balance applied in reduction of the unpaid balance of said loan. The maker hereof may at any time anticipate the balance due under this obligation and pay same at once, under the following conditions: He shall be debited with the amount of the loan, together with interest thereon, computed as aforesaid, and credited with the aggregate of his monthly payments, and may pay the balance due in full satisfaction of this obligation.”

. Frank C. Millspaugh, Commissioner of Finance of the State of Missouri, was appointed receiver to take charge of the assets of the Lincoln Housing Trust, by the circuit court, city of St. Louis, Division No. 14, in a proceeding to liquidate its assets for the benefit of its stockholders. The receivership proceeding resulted in a reorganization of the Lincoln Housing Trust and a transfer of 79 per cent, of its assets to its successor, Lincoln Savings & Loan Association, the appellee herein. Along with its other assets, the note and mortgage sued upon were duly assigned by said receiver to appellee in words as follows:

“The within note or mortgage or deed of trust securing same and all rights thereunder are hereby assigned, transferred and delivered to Lincoln Savings & Loan Association, without recourse on me. Frank C. Millspaugh, receiver of Lincoln Housing’ Trust.”

Appellant interposed the following defenses to the action:

(1) That the note and mortgage sued upon by appellee are not oiwned by it; (2) that the note and mortgage are unenforceable because the Lincoln Fiscal Agency was employed by the Lincoln Housing Trust to sell stock in Arkansas, and, pursuant to such employment, sold appellant two certificates of stock in the State, in violation of the Arkansas Blue Sky law, which enabled him to borrow the money on the note and mortgage in question; (3) that the note and mortgage are unenforceable because the sale of the certificates of stock for the purpose of accumulating funds to lend constitutes a lottery, or was a scheme of chance; (4) that the note and mortgage are usurious and void, because 20 per cent, of the face of the loan was deducted by the Lincoln Housing Trust at the time the loan was made.

The cause was submitted to the court upon the pleadings and testimony adduced by the parties, which resulted in a judgment against appellant for $4,192.78, including interest to September 18, 1927, and with interest thereafter at the rate of 4 per cent, per annum, to be computed annually in advance, and a decree of foreclosure of the lien in the deed of trust against the real estate described therein to pay said amount, from which is this appeal.

Appellant’s first contention for a reversal of the decree is that appellee failed to establish ownership of the instruments sued upon. The orders and judgments of the circuit court of St. Louis, introduced in evidence, disclose that, in a receivership proceeding for the benefit of the stockholders of the Lincoln Housing Trust, a reorganization was effected by which 79 per cent, of its assets were sold to appellee herein in consideration that said appellee would assume 79 per cent, of its obligations and liabilities. A part of its assets were the note and mortgage sued upon. The original note and mortgage were introduced in evidence, and it appears that they were duly assigned to appellee by the receiver of the Lincoln Housing Trust, pursuant to the order of the court in which the reorganization was adjudged. Appellee’s ownership of the instruments sued upon was completely established.

Appellant’s next contention for a reversal of the decree is that the note and mortgage are unenforceable because the payee and mortgagee, through its fiscal agents, sold appellant two certificates, of stock, designated as A-100 and A-100-A, in violation of the Blue Sky law of Arkansas. It is conceded that these certificates of stock were sold to appellant contrary to the provisions of Crawford & Moses’ Digest, 750 et seq., known as the Blue Sky law, which prohibits the sale of stocks, bonds and securities except under license issued by the Railroad Commission. These particular certificates of stock, under the constitution and by-laws of the Lincoln Housing Trust, had no borrowing privileges at the time appellant applied for a $5,000 loan nor at the time he obtained the $3,500 loan, and neither certificate was used as a basis for procuring the loan. Appellant had not paid enough at the time in monthly dues or payments to mature borrowing privileges. These certificates were exchanged in the reorganization for stock in the Lincoln Savings & Loan Association, the appellee herein. Under the constitution and by-laws of the Lincoln Housing Trust, a stockholder might purchase borrowing privileges .from stockholders, who had paid enough on their stock to mature such privileges. The stockholder purchasing such privileges might then borrow as much from said company as it would lend upon the real estate security offered. In order to apply for and procure a loan, appellee, through the fiscal agent of the Lincoln Housing Trust, purchased from their stockholders who had bought their stock in Missouri, borrowing privileges entitling him to a $3,500' loan, provided the real estate security offered by him was satisfactory to the fiscal agent. Appellant purchased borrowing privileges on stock certificates numbers E-51, E-54, and parts of E-42 and E-72, in series No. 1, upon which he borrowed $3,500. Since the loan was procured on borrowing privileges acquired by purchase on stock legally sold in Missouri, the loan and securities are disconnected from the illegal transaction of selling stock certificates numbers A-100 and A-100-A to appellant by the fiscal agent of the Lincoln Housing Trust Company. The general rule is that securities may be enforced, although growing out of illegal acts or contracts, if they can be separated from the illegal transaction or transactions, and if in enforcing them it is unnecessary for the plaintiff to rely upon the illegal transaction or transactions in order to establish his case. 13 C. J. 502; 6 R. C. L. 821; 17 R. C. L. 1233; Elliott on Contracts, vol. 2, §§ 277 and 1078. It was not necessary in the instant case, in order for appellee to recover, to prove the illegal sale of the two certificates of stock in violation of the Blue Sky law of Arkansas by the fiscal agent of the Lincoln Housing Trust to appellant, as said certificates bad no borrowing privileges and could not be and were not used in procuring bis loan.

Appellant’s third contention for a reversal of the decree is that the note and mortgage sued on are unenforceable because the entire scheme employed by the Lincoln Housing Trust to sell its stock and accumulate funds with which to make loans was, in effect, a lottery or scheme of ichance. It is argued that the plan is identical with the Home Planters’ Depository, which was condemned by the Supreme Court of Missouri as being a lottery and repulsive to the Missouri Constitution and State laws. In support of the argument, appellant cites the case of State of Missouri ex rel. Home Planters’ Depository v. Hughes, 299 Mo. 529, 253 S. W. 229, 28 A. L. R. 1305. The Home Planters’ Depository had no license to do business in the State of Missouri, and was denied a license by the Commissioner of Finance for Missouri. That suit was one in mandamus to compel the commissioner to issue the Home Planters’ Depository a license. After reviewing the plan, the court ruled that the commissioner rightfully refused it a license because its plan involved the operation of a lottery. Upon a motion for rehearing in that case, the Lincoln Housing Trust filed a brief as amicus curiae, suggesting apprehensions that some of the language used by the court might impugn and stigmatize the plan of the Lincoln Housing Trust. The court took occasion to say, in its written opinion on rehearing, that the Lincoln Housing Trust was operating under a license from the State of Missouri issued under an express statute, § 10263, by the Commissioner of Finance for the State of Missouri. The court further stated that: “There is no impropriety in saying- that this court does not desire to be understood as disposing of either rights or reputations of organizations or individuals not before it.” We think a complete answer to the charge that the entire plan and scheme of the Lincoln Housing Trust to accumulate funds for the ■purpose of lending same and the lending thereof constitutes a lottery, is that it was operating under permission of the State of Missouri by express license under authority of § 10263 of the statutory laws of that State. In view of the license under which the Lincoln Housing Trust was operating, it must be presumed that its scheme and plan were not contrary to the public policy of that State. The plan of the Lincoln Housing Trust, as we gather from the record in this case, was to sell its stock to raise or accumulate a fund for the purpose of lending it to stockholders who had matured borrowing privileges incident to the stock by paying a certain number of monthly payments, thereon, provided the real estate security offered ¡by the borrower was satisfactory to the fiscal agent of the Lincoln Housing Trust. Under the plan or scheme, any stockholder who owned borrowing privileges might apply for and obtain a loan if the fund was on hand, provided the security offered was satisfactory to its fiscal agent. If the stockholder had not sufficiently matured his stock upon which to borrow money, the privilege was accorded him, under the plan or scheme, of buying borrowing privileges from stockholders who had sufficiently matured their stock. There is nothing in the record indicating that the loans were made by casting lots or 'by any other method of chance, or that any discrimination was made in favor of one borrower against another through lot or other method of chance.

Appellant’s fourth and last contention for a reversal of the decree is that the contract was usurious. The argument is made that, because $700 was deducted from the loan and paid to the fiscal agent of the Lincoln Housing Trust, said amount together with 4 per cent, per annum rendered the contract usurious. We do not understand that $700 was deducted from the face of the loan and retained by the Lincoln Housing Trust. Appellant received two checks covering’ the amount of $3,500 borrowed by him. One check was for $2,800 and the other was for $700. Both checks were made payable to him., and there was an assignment of the $700 check, written across the back thereof when he received it, for him to sign and return to the fiscal agent of said Lincoln Housing Trust. Testimony was introduced to the effect that the fiscal agent retained only $70 of this amount for its 'services in purchasing borrowing privileges from other stockholders for appellant in order that he might use said privileges as a basis for borrowing $3,500, and that the balance was used in payment for borrowing privilegies. In other words, all that the Lin-coin Housing Trust or its fiscal agent received or retained out of the loan was $70. The balance went to stockholders who had borrowing privileges to sell. Sev-> enty dollars added to the contract rate of 4 per cent, would not and did not render the contract usurious. Simpson v. Smith Savings Society, ante, p. 921.

No error appearing, the decree is. affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Williams v. Ketchum.
    Opinion delivered February 11, 1929.

      J. G. Burke, for appellant.

      John C. Sheffield, for appellee.
   Smith, J.

Suit was brought by Joe Williams to recover possession of an eighty-acre tract of land in Phillips County, upon the allegation that the land was owned by Henry Williams at the time of his death, and that the plaintiff, Joe Williams, was the only child and sole heir-at-law of Henry Williams. Krow & Neumann acquired such title as Joe Williams owned, and were substituted as plaintiffs.

The testimony on the part of plaintiff was to the effect that Henry Williams came to Arkansas in 1884, and brought with him a small boy, Joe Williams, the original plaintiff in this suit. Henry Williams always referred to the boy as his son, and he was generally regarded as such. Henry married a woman named Lena, in Mississippi; who was the mother of two daughters, but no children were bom to this marriage. Henry and Lena came to Arkansas, and brought the three children with them, all of whom were called Williams, but it was generally known that the daughters were stepchildren, while it was commonly supposed that the boy was the son of Henry.

Henry lived on the land, which had become his homestead, and died in 1911, and his widow continued to reside oh the land as her homestead until her death in 1921. The daughters of Lena Williams took possession of the land, under the claim that they had inherited it from their mother, who had inherited it from Henry by reason of the fact that he was not survived by any direct or collateral kin.

The defendants denied, in their answer, that Joe Williams had any interest in the land, for the reason that .he was not the son of Henry Williams. The chancellor found the fact to be that Joe was not the son of Henry, and dismissed the complaint as being without equity, and this appeal is from that decree.

Appellants invoke the presumption, said to be one of the strongest known to the law, that a child born in wedlock is legitimate, and cite us to oases of our own in which it was held that marriage may be proved in civil cases by reputation, by tbe declarations and conduct of the parties, and by other circumstances usually accompanying that relation, and that the declarations of the parties are evidence tending to establish that relation. We recognize the authority of these cases, but we concur in the finding- of fact of the court below that the testimony does not establish the fact that Joe Williams was born in wedlock or that Henry Williams was his father.

Witness John Crawford testified that he first knew Henry Williams in 1878, and that Henry later married Lena, who was then the mother of two daughters, and in 1884 Henry brought his mother to live with him, and she brought with her a small boy about nine years old, named Joe Moore. Henry gave this boy to witness, in the spring of the year, and witness kept the boy until Christmas, when he returned the child to Henry. Witness was told by Henry that the child was not his, but that he intended to keep the child as long as his (Henry Williams’) mother lived, and that Henry did this, and when Henry’s mother died the child left Henry’s home. Later the boy re-entered Henry’s family as a member thereof.

Louis Allison testified that he knew Henry Williams in Tennessee; that Henry said he never saw the child until he went to bring his own mother to live with him, and that he had heard Henry say that he had been married only one time, and that was to the mother of his stepchildren, the appellees in this case.

Will Wilson testified that he knew Henry Williams in Tennessee, and that Henry was never married until he married Lena.

At § 5 -of the chapter on “Bastards,” in 3 B. C. L., page 725, it is said:

“It has been said that the law presumes that every child in a Christian country is prima facie the offspring of a lawful rather than of a meretricious union of parents, and this is true in one sense. Filiation being established, legitimacy is presumed. However, where the right to inheritance-is claimed, the burden is on the claimant to establish the fact that he is a legitimate heir, though, after proof of filiation, lie will receive the benefits of the presumption of legitimacy.”

See Weatherford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206, and note commencing on page 210; note to case of Wallace v. Wallace, 126 Am. St. Rep. 253.

Here no witness testified that Henry bad ever lived with the mother of Joe. On the contrary, the testimony is to the effect that the child was eight or nine years old when Henry first saw him, and was then known as Joe Moore. It is true Joe was later called Williams, but so also were the stepdaughters, and if it be said that the testimony shows that Henry referred to the boy as his son, the testimony also shows that Henry was never married but once, and then to Lena, the mother of his stepchildren. There is no testimony that Henry Williams ever at any time lived with any other woman as his wife. In this connection it may be observed that Joe Williams was not called as a witness in the case.

Appellants claim only such title as Joe Williams had, and must recover, if at all, upon the strength of this title, and, as it does not appear that Joe Williams had any title, the decree is correct, and must be affirmed. It is so ordered. ■ T¥¡


author: Kirby, J.

text:
    East Arkansas Lumber Company v. Beard.
    Opinion delivered February 11, 1929.

      Fred M. Pickens, for appellant.

      Ira J. Mack, for appellee.
   Kirby, J.

This appeal is prosecuted to reverse a decree adjudging W. T. Davenport, appellee, not liable to the payment of a bill for lumber alleged to have been purchased and used in making improvements for an amusement park in which he was alleged to have been a partner.

It appears from the testimony that he and W. II. Beard were partners in the .construction of a dancing pavilion, upon his land, of certain dimensions, out of some of the lumber purchased from appellant. He admitted that he helped in the construction of the first dancing platform, later enlarged, and that he shared or suffered one-half of the loss for 'certain entertainments held there, before the other buildings were made, and paid his part of the loss. He claimed afterwards, however, that, upon this loss being suffered and settled for, he quit the partnership and told W. H. Beard that he could proceed with the improvements alone, and that he was not going further. The materials were sold to Beard, and charged to him on the books. Witnesses, employees who sold the lumber, testified, however, that they understood at the time of the purchase that appellee, Davenport, was a partner in the venture, and that the company looked to both of them for payment for the lumber furnished.

Beard testified that appellee, Davenport, was a partner with him, and that it was their expectation, on completion of the improvements, to organize a fair association and to construct the buildings for supplying refreshments and amusements with the materials bought.

Two other witnesses testified that it was their understanding that appellee, Davenport, was a partner in the venture, and each of them stated that he had told them he was a partner in the beginning, but that, after he had suffered the loss on the first few entertainments and paid up, he had quit the partnership, and had nothing further to do with the venture and no interest in it, and was not in anyway liable thereafter to the payment of any claims.

Appellee made no claim that he had given any notice to appellant company or any of its agents or any one else of the dissolution of the partnership, and there was no testimony indicating that appellant had any notice whatever of any such dissolution before the materials were furnished. Even though appellee, Davenport, withdrew or attempted to withdraw from the partnership before most of the materials were furnished, as he now insists was the case, he does not claim that there was any notice given or attempted to be given to appellant or any one else of his withdrawal from or dissolution of the partnership. His attempted withdrawal from' the partnership without any notice, actual or constructive, to appellant company of such withdrawal, did not release him from liability for the- payment of the account for materials furnished on the faith of his being a partner at the time. Hinton v. Brown, 174 Ark. 1025, 298 S. W. 198; 20 R. C. L., §§ 190, 194.

The court erred in holding appellee, Davenport, not liable as a partner to the payment of the bill for materials furnished by appellant company, such holding being contrary to the preponderance of the testimony, and the decree is accordingly reversed, and the cause remanded with directions to enter a decree against said appellee therefor, and any other necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Kirby, J.,

text:
    Missouri Pacific Railroad Company v. Hobbs.
    Opinion delivered February 11, 1929.

      Thomas B. Pryor and H. L. Ponder, for appellant.

      Brundidge & Neelly, for appellee.
   Kirby, J.,

(after stating the facts). Equity has jurisdiction to prevent repeated trespasses upon the property of another by injunction, where the remedy at law for damages is inadequate, and also to restrain such trespassing, to avoid a multiplicity of suits, especially where the wrongdoer is insolvent. 32 C. J. pp. 140-144; 14 R. C. L. pp. 422.-455; Sanders v. Boone, 154 Ark. 239, 242 S. W. 66; Dufresne v. Paul, 144 Ark. 94, 221 S. W. 485; Boswell v. Jordan, 112 Ark. 162, 165 S. W. 295; Ellsworth v. Hall, 33 Ark. 63; Fletcher v. Pfeifer, 103 Ark. 225, 146 S. W. 864.

It is said in C. J., supra, 140:

“It is now well settled that an injunction will apply to restrain acts of trespass which are continuously or constantly recurring, where irreparable injury will result, unless they are restrained, and the court will award the relief that the nature of the action demands, and the fact that the injury done or threatened is of a nominal character, or is insubstantial, or that the wrongful acts, when viewed separately, may not have materially impaired the use and enjoyment of the property affected, does not take away the jurisdiction of a court of equity to prevent the continuance of such wrongful act.”

The premises or property of the railroad company is private property as between it and trespassers, as appellee was alleged and by the demurrer conceded to be. In 14 B. C. L., page 455, it is said:

“While courts of equity will not ordinarily enjoin a mere trespass, yet they will interfere for the purpose of preventing a continuing trespass involving a multiplicity of suits at law, and which is both a grievance to the parties and a burden to the public. * * * Thus, the property of the railroad company is to be deemed in every legal sense private property, as between it and those of the general public who have no occasion to use it for purpose of transportation. A court of equity will therefore enjoin such persons from a continuous trespass on the premises used for stations and depots, their only purpose being the meeting of passengers and solicitation of their patronage, the remedy at law, in a case of this character, being manifestly inadequate.” Citing Donovan v. Penn. Co., 199 U. S. p. 279, 26 S. Ct. 91; N. Y. R. R. Co. v. Scovill, 42 L. R. A., p. 157. See also note, 47 A. L. R. 564; Joy v. St. Louis, 138 U. S. 1, 11 S. Ct. 243; Landregan v. State, 31 Ark. 50 ; Graham v. St. L. I. M. & S. Ry. Co., 69 Ark. 562, 66 S. W. 344.

It was the duty of the railroad .company to take such action and make such arrangements as might promote the comfort and convenience of passengers arriving or departing on its trains, as well as for their protection from annoyance while thereon. The allegations of the complaint were sufficient to authorize the granting of the relief prayed, and the court erred in holding otherwise.

The decree is accordingly reversed, and the cause remanded with directions to overrule the demurrer, and for all further necessary proceedings in harmony with the principles of equity and not inconsistent with this opinion.


author: Mehaffy, J.

text:
    Lynn v. Quillen.
    Opinion delivered February 11, 1929.

      Pratt P. Bacon, for appellant.

      Gustavus G. Pope, Will Steel and James D. Head, for appellee.
   Mehaffy, J.

J. J. Lynn and Nancy 13. Lynn were husband and wife, and lived together for more than 40 years, rearing a family of five girls. J. J. Lynn had one son by a former wife. J. J. Lynn had conveyed to his son, Archie Lynn, 160 acres of land, the appellant joining with him and signing the deed. After this 'conveyance to the son, the appellant wanted J. J. Lynn to mate deeds to the five girls to the property that he then owned, so that the son, Archie Lynn, would not inherit any part of it, her contention being that he had already received a deed to 160 acres, and that the girls should have the rest of the land. J. J. Lynn agreed to do this, and, on March 1, 1918, made deeds to Ophelia Quillen, Mabel Barkman, Mary Eliza Dickert, Fannie Stewart and Agnes Hendren to the land in controversy, a part of which was, prior to that time, the property of appellant.

No objection is made to the deeds conveying property which belonged to J. J. Lynn, but the appellant says she did not agree to convey the 160 acres that she owned, that she did not sign the deeds, and that she did not acknowledge the execution of the deeds.

J. J. Lynn delivered the deeds to J. S. Brooks, the circuit clerk, before whom the deeds were acknowledged. J. J. Lynn died January 9, 1920, leaving his widow, the appellant, and the five girls, to whom the land was conveyed, and also one .son, Archie Lynn, surviving him. After his death J. S. Brooks called the parties together and gave them the deeds, the appellant being present at the time. The parties took possession of the lands and occupied them, but appellant testifies that it was a month or two after the deeds, were delivered, which was January 20, 1920, before she learned that her land was included. She knew the deeds were being delivered, but she testified she did not know that it included her land. She was unable to read or write. She testified that she did not sign or acknowledge the deeds, and that when they were delivered she did not know that her name was signed to them. She denied acknowledging the deed before J. S. Brooks, and denied having any knowledge of the deeds until the time they were delivered. Appellant lives on the land deeded to Mabel Barkman. All of the grantees, except Mabel Barkman, were married at the time the deeds were delivered, and she is. now married. Appellant made no objection to the delivery of the deeds, but said she did not know their contents at that time, and did not learn it for two months. She then learned that her name had been signed to them. She also knew that every one of them took the land that was deeded to them and claimed to own it, and that that condition continued until this suit was brought. She testified that she did not know about the mortgages. Appellant claims that when she found out about the deeds she told them she did not sign them, but that if they would pay rent for the land she would let it stand, and that they agreed to do this, and some of them have paid rent.

The testimony is undisputed that they took possession of the land, and claimed to own it, with her knowledge, and continued to claim it and pay taxes on it until the time this suit was brought. She did not, according to her testimony, authorize any one to sign her name or acknowledge the deeds. There is no dispute about the deeds having been signed and acknowledged by Lynn and delivered to Brooks to be delivered after Lynn’s death.

Brooks, the clerk, testified that he did not see the appellant sign the deed, but that he took her acknowledgment ; that he had written the deeds in his office at the request of Mr. Lynn, and he identified the deeds which he wrote. Brooks knew how Mr. Lynn wanted the land divided, and, after writing the deeds and taking Lynn’s acknowledgment, he carried the deeds home with him. And, shortly after that, Brooks went to Mrs. Lynn and asked if she acknowledged sighing it, and she said she did. He then left the deeds in the office, after certifying to the acknowledgment. Mr. Lynn told him to deliver the deeds after his death, and he kept them until Mr. Lynn’s death, in 1920, and then called the children together and delivered the deeds. Mrs. Lynn was present. Witness testified that the appellant said: “You children get all the land; will you agree for me to get the money in the bank ? ’ ’ There was about $600, and they all agreed.

The testimony is undisputed that all of the personal property was given to the appellant. It consisted of money, a Liberty bond, savings stamps, and live stock and farming implements.

The appellant testifies very positively that she not only did not sign the deed to her land, but that she did not know it was included, until about two months after the deeds were delivered. She is 69 years old, unable to read or write, and it is undisputed that she requested her husband to deed the land to the girls, who were her children, as well as his, because the son by a former marriage had already received what she conceived to be his part of the property belonging to her husband.

It is contended by the appellant that the finding of the chancellor is against the preponderance of the evidence, and she insists that she is only required to prove by a preponderance of the testimony that she did not sign or execute the deeds. In this last contention we agree with the appellant. If the preponderance of the evidence is in her favor, this would be sufficient to show that the deed was not executed.

This court has frequently held that the burden of proof rests upon the person denying- that he signed the deed or acknowledged it, to show the falsity of the certificate of acknowledgment, but that the weight of the evidence should hot be affected by any particular rule peculiar to the subject. But it has also many times held that the recitals of the certificates of an officer authorized by law to take such acknowledgment, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated.

A certificate of acknowledgment to a deed duly placed on record makes a prima facie case of the proper execution of the deed. Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Nevada County Bank v. Gee, 130 Ark. 322, 197 S. W. 680; Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30; Miles v. Jerry, 158 Ark. 314, 250 S. W. 34; Hale v. Mitchell, 175 Ark. 641, 1 S. W. (2d) 59. Many other cases might be cited to the effect that the certificate of the officer is prima facie correct, and that one attacking a deed so executed and acknowledged has the burden of proof and is required to show by a preponderance of the evidence that the deed was not, in fact, signed.

In this case we have the positive testimony of the appellant that she did not sign the deed, but we also have the testimony of the officer that she acknowledged it. "We have her admission that she learned about it two months after the deeds were delivered; that the grantees in the deed occupied and claimed to own the land for several years, and practically all of the circumstances corroborate the statement of Brooks, or at least the fact that, when she discovered, according to her testimony, that the deeds had been made, she acquiesced in the making and delivery of the deeds. She was 69 years old, unable to read and write, and the husband who had the deeds written was dead, and the transaction was what she wished and had urged her husband to do, except, as she claims, this did not apply to her 160 acres of land. At any rate, whether she did or did not sign the deed or acknowledge it and ratify the execution and delivery, is a question of fact, and the chancellor’s finding will not be disturbed by this court, unless the finding is against the preponderance of the evidence.

In appeals from the chancery court trials are de novo, but the findings of fact by the chancellor are allowed to stand unless they are clearly against the preponderance of the evidence. Henry v. Erby, 175 Ark. 614, 1 S. W. (2d) 49; Doane v. Rising Sun Mining Co., 139 Ark. 605, 213 S. W. 399; Hyner v. Bordeaux, 129 Ark. 120, 195 S. W. 3; Midyett v. Kerby, 129 Ark. 309, 195 S. W. 674; Houser v. Burchart & Levy, 130 Ark. 178, 197 S. W. 28; Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260.

Appellant calls attention to numerous authorities which hold that, the statute not being complied with, the signatures are not prima facie the signatures of appellant, and that therefore the burden is on appellee to establish by a preponderance of the evidence that appellant did sign these deeds. But, even if the statute was not complied with, appellant ratified the signature and the acts of the clerk when she acknowledged the deed before the clerk. She not only, according to the testimony of Brooks, acknowledged the execution of the deeds before him, but she ratified it when she had a meeting with the grantees and they gave her all of the personal property.

There is some conflict in the testimony with reference to what took place, but the conduct of the parties corroborates the testimony of the grantees and shows very clearly, we think, that appellant ratified the signature and acknowledgment.

Signature, as contended by the appellant, while it includes mark when a person cannot write his name, must be written and witnessed by a person who writes his own name as a witness. But, when the acknowledgment is before a proper officer, although there is no witness to the mark, and the name may have been written by another, it will be considered an adoption of the written name, and especially is this true when the conduct of the party clearly indicates that she acquiesces in the transaction. And this court has said, in substance, that, while the mark of one who is unable to write is not to be considered a signature unless the person writing his name writes his own name as a witness, still it has also said that this only means that such signature is not taken as prima facie true without other proof of the signing, and the statute was not intended to exclude other proof. Ex parte Miller, 49 Ark. 18, 3 S. W. 883; Davis v. Semmes, 51 Ark. 48, 9 S. W. 434; Fakes v. Wilder, 70 Ark. 449, 60 S. W. 260; Ward v. Stark, 91 Ark. 268, 121 S. W. 382.

Although the statute may not be complied with, and the name may be written without authority, still, if the person whose name is signed to the instrument goes before an officer authorized to take acknowledgments and acknowledges the instrument, he thereby ratifies the signature, and it is as valid and binding as if he had written his name himself, or, if he could not write, had signed by mark and the mark was witnessed.

“The signatures of James Hill and Phoebe Hill by marks did not appear to be attested, as provided by our statute. J. H. Hill and Phoebe Hill could not read and write. The method provided by statute for attesting the signature of a person who cannot read or write is not exclusive, but only establishes prima facie the genuineness of the signature without other proof of signing. The grantors in this deed appeared before a justice of the peace and acknowledged the execution of the deed. Their signatures were signed to the deed, and, even if unauthorized, they were ratified by the grantors appearing before the justice of the peace and acknowledging the execution of the deed. ” Naill v. Kirby, 162 Ark. 140, 257 S. W. 735.

Appellant claims that the parties paid her rent, but, even if her contention in this respect is. true, she had already ratified the signature when she went before J. S. Brooks, and did at this time agree, in the presence of all the parties, that the deeds might stand if they would pay her rent. At any rate, she, admits that she agreed they might stand, and says they were to pay rent, but the appellees testify that they did not agree to pay rent, and that they never paid any rent. One of the sons-in-law testified that he gave her some corn, but did not give it to her as rent, but merely gave it to her. Appellant not only knew that the appellees were occupying the land, claiming it as their own and paying taxes thereon, but she stood by for more than seven years without making any claim to the'land at all, and permitted them to exercise ownership, claim it as their own, and she is thereby estopped to claim that the deeds were not properly executed. She also saw the improvements made on some of the property. But when she permitted them to claim it, to exercise ownership, and pay the taxes, knowing-all the time that they were claiming it as their own, she could not have the deeds set aside.

Section 6942 of Crawford & Moses ’ Digest provides, among other things: “No person or persons, or their heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments, but within seven years next after his, her or their rights to commence, have or maintain such suit, shall have come, fallen or accrued.”

As to all the issues involved in this case, that is, whether she signed the instruments or acknowledged them, or stood by and permitted the grantees to claim it as their own, occupy it, mortgage it, pay taxes on it, are all questions of fact, and the finding of the chancellor is supported by the evidence.

The decree is therefore affirmed.


text:
    Woods v. Quarles.
    Opinion delivered February 11, 1929.

      Brewer & Cracraft and Williamson & Williamson, for appellant.

      Wilson & Norrell and W. G. Diiming, for appellee.
   Mehaffy, J.

Appellee brought suit in the Drew. Chancery Court against G. A. Woods and A. S. Woods, alleging that he, Quarles, was a resident of Phillips County, Arkansas; that on the 4th day of April, 192'5, in a cause pending in the Drew Chancery Court, wherein G-. A. Woods and others were plaintiffs and T. ,D. Hunt and others were defendants, a writ of garnishment was issued out of Drew Chancery Court, directed to the sheriff of Phillips County, Arkansas, wherein John M. Quarles was named as garnishee; that, pursuant to said writ of garnishment, on June 10, 1925, judgment for $8,750.35 was rendered against him by reason of his failure to answer in response to said writ of garnishment. A certified copy of the judgment was attached to plaintiff’s complaint as a part of same.

Quarles further alleged that the decree was void because the Drew Chancery Court had no right or authority to issue a writ of garnishment directed to the sheriff of Phillips County, directing him to serve the same upon Quarles, a resident of Phillips County, Arkansas, and that the issuance and delivery of such -writ was wholly void, and the judgment of the Drew 'Chancery Court based thereon exceeded its jurisdiction. He also alleged that said writ of garnishment was not served upon him in any manner, although the same has a return indorsed thereon showing that the same was served by E. Toney, deputy sheriff. He stated that the return was false and fraudulent, and that no service was had upon him, and that he had no knowledge, either actual or constructive, of the garnishment proceeding against him until March, 1927. On the 23d of March, 1927, the appellants filed suit in the Phillips Chancery Court, alleging that they had recovered a judgment against Quarles by reason of the garnishment proceeding, and sought to subject certain funds recovered by Quarles from the .¿Etna Casualty Company to the payment of said judgment; that service o.f summons in the suit in the Phillips Chancery Court was served shortly after March 25, 1927, and that this was the first information, either actual or constructive, which Quarles had of the pendency of any garnishment proceeding in the Drew Chancery Court; that if the writ of garnishment had been served on him, he conld and would have filed an answer to the same, denying that he was indebted to Hunt in any sum whatever. He alleged that Hunt is insolvent, and is, in fact, indebted to the plaintiff.

Plaintiff prayed that the decree of the Drew Chancery Court be canceled and set aside, and for all proper relief.

It was shown that Gr. A. Woods and A. S. Woods were nonresidents of the State of Arkansas, and a warning order was published. The burden was, of course, on appellee to show not only that the return of the officer was false, that no service was ever had on him, but also to show that he had a meritorious defense. He alleged that he was not indebted to- Hunt in any way, but that Hunt was indebted to him, and, if that were true, it would have been a meritorious defense.

Appellants, however, state in the beginning of the argument that the only issue of fact presented by the appeal is the allegation of appellee in his complaint, which was sustained by the lower court, that he, Quarles, was not served with the writ of garnishment involved — that the sheriff’s return is false.

All of the material allegations in the complaint were denied by appellants, and they also denied the jurisdiction of the court, and alleged that his action was stale; that he was guilty of laches; and also pleaded estoppel.

The chancery court held that the writ of garnishment issued on the 4th day of April, 1925, was never served in any manner whatever upon John M. Quarles, and set aside the default judgment rendered on June 10, 1925, in the sum of $8,750.35, together with interest, canceling, vacating, setting aside and holding for naught said judgment.

Quarles himself testified that he lived in Helena, Arkansas, and filed as an exhibit to his deposition the certified copy of the judgment or decree rendered' by the Drew Chancery Court on the 10th day of June, 1925. That the writ of garnishment issued by the Drew Chan-eery 'Court April 4, 1925, was never served on him by Edgar Toney or any one else, and that he never learned anything about the judgment by default until summons was served on him in the Phillips Chancery Court, March 26, 1927; that he had neither actual nor constructive notice; that, if said garnishment had been served, he would have taken steps to prevent any judgment; that he did not owe Hunt anything, and that Hunt was still indebted to him. He further testified that at the time the deputy sheriff claimed to have served the garnishment he was living in Little Bock, with his family; that his wife’s health was not good, and that he did not go back to Phillips County until the 28th day of May, 1925, about 18 days after the date on which the deputy sheriff claimed to have served him in Helena; that he was not in Helena in May until the 28th; that he had no recollection of Toney serving him with papers in .front of the Cleburne Hotel, when he got off the train. That he was never served by Toney, the deputy sheriff, with any papers of the kind in this case, during 1925.

Mrs. Elizabeth Walker, the mother of Mrs. John M. Quarles, who is 69 years old, testified that she lived in the home with Mr. Quarles, and had for the last seven years; was living with them in Little Bock in May, 1925, where they had been all the year, and that they moved away from Little Bock on May 29, 1925; that for ten days or two weeks previous to that, Quarles was in Little Bock all the time, on account of the sickness of his wife; that John M. Quarles was in Little Bock on May 20. He was at home all hours of the day to see his wife, because she was ill, and he did not leave town.

Edgar Toney, the deputy sheriff, testified that he served the original writ of garnishment on John M. Quarles, in Phillips County, Arkansas; that the return was in his handwriting, and that it correctly recited the facts, and that he recollected serving it, and he thought it was in front of the Cleburne Hotel; that he remembered his former testimony, and remembered serving this paper on Quarles, He said he was not testifying that he served it for the reason that the return was written by him, but that his memory about the paper is now clearer than it was when he first testified; that he did not think he testified, on November 16, that he had no personal recollection of having served the paper.

In his former testimony he said: “Well, it seems to me now that about two' years ago I served a paper similar to this, that is, in size, on Mr. Quarles. But, it being so long, I cannot remember, and lots of papers I serve I never read the contents. But I remember serving a paper like this on Mr. Quarles. ’ ’

He also testified in the present case that he read the contents of the writ of garnishment before he served it. Toney was a deputy sheriff, and had been for six years. He said, as deputy sheriff, he had served several papers on Mr. Quarles, but never served but one paper the size of the writ of garnishment. He did not remember ever serving a paper on Quarles at his residence or giving one to any member of the family, but had always caught him down town.

In order to set aside a decree rendered without notice, it is necessary to make a prima facie showing o.f a meritorious defense. The appellee in this case in the court below, in order to have the decree set aside, was required to show a meritorious defense, and that the writ of garnishment was, never served upon him. The testimony as .to a meritorious defense is undisputed, and is sufficient. The evidence shows that Quarles did not owe Hunt anything, and, if that is true, this would be a complete defense. The evidence on the question of whether the writ of garnishment was served is, conflicting. But Quarles testifies positively that the writ was never served, and he also testifies that he was in Little Rock during the entire month of May, or rather, until the 28th day of May, and was not in Helena, and, if this is true, the writ could not have been served on him in Helena.

Mrs. Elizabeth Walker, the mother-in-law of J. M. Quarles, testifies that she lived in the home of Quarles in Little Rock, and testifies to the same, in substance, that Quarles did about his being in Little Rock in May and not being in Helena at the time the deputy sheriff says he served the writ of garnishment.

The return of the officer is prima facie true, but this court has many times held that evidence might be introduced to show that no service was. had.

“This court is committed to the doctrine that an officer’s false return of service of process shall not preclude the defendant from showing the truth, in a proper proceeding to be relieved from the burden of a judgment or decree based thereon. One who is aggrieved by a judgment rendered in his absence must show, not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense. ’ ’ Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743. See also State v. Hill, 50 Ark. 458, 8 S. W. 401; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575; First National Bank of Manchester v. Tu-rner, 169 Ark. 393, 275 S. W. 703.

In passing upon a question very similar to the question in this case, this court said:

“Considering that it does not appear that the judgment was obtained by fraud practiced by the successful party, the court is of opinion that in this case the defendant was prevented, without any fault upon his part, from appearing or making his defense to the action, and that his case comes fairly within the spirit of the seventh subdivision of § 4197, Sandels & Hill’s Digest.” Hunton v. Euper, 63 Ark. 323, 38 S. W. 517.

In the above case the plaintiff brought suit, just as was brought in the instant case, to set aside the judgment, upon the ground that it was rendered without any summons or notice having been served on him. The complaint also prayed for a temporary restraining order to prevent the execution of the judgment until the hearing, which was granted. The return showed that defendant had been served, .just as it does in the instant case. It appeared that it was served by a negro boy 16 or 17 years of age, who testified that he had given the paper to a man lie supposed to be Mr. Euper, and thought it was an account. The evidence also showed that the summons was handed to the negro boy by the attorney for the plaintiff in the action, with directions to give it to defendant Euper, and he handed it to a man who was pointed out to him as Euper. Euper swore positively that he had never been handed a summons in the case by the boy, and had never been served, and knew nothing of the judgment until long after the term of court had elapsed.

Under our decisions, if the negro boy or anybody else had given him a summons, or if he had knowledge that the suit was pending-, he would have been required to answer, and, if he failed to do so, he could not, after the term of court had expired, maintain a suit to set aside the judgment or decree. In the instant case, however, Quarles testifies positively that he not only was not served, but that he knew nothing of the suit, and had never heard of it until March, 1927. When he did find out about it, he immediately brought suit to set aside the decree.

As to whether the writ of garnishment was served on Quarles and whether he had any notice that the suit was pending, were questions of fact, and the finding of the chancellor is supported by a preponderance of the evidence. However, the appellant contends that, even if the summons was not .served, Quarles ’ attorney had notice, and that notice to the attorney was notice to the client, and cites and relies, on § 1334 of Crawford & Moses’ Digest, State v. West, 160 Ark. 419, 254 S. W. 828, and Bank of Hoxie v. Merriwether, 166 Ark. 39, 265 S. W. 642, and numerous other authorities from which he quotes. The section of the Digest relied on reads as follows:

“Where it is not otherwise specially provided, a notice to a party in an action of any motion or proceeding to be made or taken therein, in coui’t or before a judge, may be served upon such party or his attorney; but the service upon the attorney in any such case must be by delivering to him a copy of the notice.” Section 1334, Crawford & Moses’ Digest.

In the case pending in the Drew Chancery Court, Quarles was not a party until the writ of garnishment was issued. He therefore had no attorney representing him in that litigation upon whom a notice could have been served. And certainly notice, if it had been served in the manner provided by statute on some lawyer simply because he had represented him in some other case, would not bind him in that case. It would be no notice whatever. Besides, a writ of garnishment is a summons. Its purpose is not only to prevent the garnishee from paying money to the person to whom he owes it, but it is a summons for him to appear in elourt and answer the interrogatories filed, and it must be served as any other summons. Notice to an attorney that a summons has been issued in a case where a party is defendant would be no notice whatever to the party simply because he had employed the attorney in some other litigation.

In the first case referred to by appellant, the court said:

“It is not denied that Ivie, who was and is her attorney, was served with notice. It is time this attorney accepted the service only for himself and not for his client, but the service upon him was not in his individual capacity but as the attorney for the widow; and it was not denied and is not denied that he was then and is now her attorney in this matter.” State v. West, 160 Ark. 413, 264 S. W. 828.

There is no suggestion in the instant case that the attorney notified was the attorney for Quarles in this matter. He never represented him in this matter, and was not authorized to receive notice, and no notice was served on him. There was some correspondence between the attorney who had formerly represented Quarles and the attorney for the appellant, but the attorney with whom the correspondence was had did not represent Quarles in this matter, and Quarles never had notice, either actual or constructive, according to his testimony, of the writ of garnishment.

In the next case to which attention is called by appellant and on which he relies, the court said:

‘‘Notice to Albright, who was the cashier of the bank, was notice to the bank. The general rule is that the principal is affected with notice of all that his agent knows in the line of his duty or within the scope of his powers. A corporation must necessarily act through agents, and the general rule is that knowledge of an agent acquired in the ordinary discharge of his duties for the corporation is ordinarily to be imputed to the principal.” Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S. W. 642.

There is nothing in the decision in the above case that supports the contention of the appellant in this case. The attorney with whom the correspondence was had was a lawyer in Little Rock, and not an attorney of Quarles in this matter, and nothing he did was within the line of his duty as attorney for Quarles. When a client employs an attorney in a certain litigation, notice to the attorney of motions and actions taken in that particular case ordinarily bind the client. But it has never been held that notice to an attorney in a case in which he had most yet been employed was notice to the party, although he may have represented the party in other litigation.

The evidence in this case fails to show that Quarles had any notice whatever of. the writ of garnishment, other than the testimony of the deputy sheriff that he served it upon Quarles. The notice that it is claimed was given to attorneys might as well have been served on or given to any attorney in Arkansas. 'Service on an attorney means service on the attorney employed in the particular litigation or employed generally. It does not mean service on an attorney who at some time had represented the party. This is no notice at all, and we therefore think that Quarles had no notice of the pendency of the suit, and that there is no evidence tending to show that he had notice, other than the testimony of the deputy sheriff, showing that he served the writ of garnishment.

The appellant next contends that this is not a direct attack, but a collateral attack on the decree, and calls attention to a great many authorities to the effect that, on collateral attack, the question is tried upon the record only. We do not agree, however, with the appellant in this, contention. This is a direct attack, and, as we have already shown, evidence may be introduced that no service was ever had. A direct attack on a judgment is an attempt to amend it, correct it, reform it, vacate it, or enjoin the execution in a proceeding instituted for that purpose. And a motion or petition to vacate a judgment is a direct attack thereon. 15 R. C. L., 839; Continental Gin Co. v. DeBrod, 34 Okla. 66, 123 Pac. 129; Newman v. Mackey, 37 Tex. Civ. App. 85, 83 S. W. 31; Housser v. Bonsal & Co., 139 N. C. 51, 62 S. E. 776. Then the cases decided by this cóurt already referred to show conclusively that this is a direct attack.

Appellant further contends that the motion to dismiss for want of service should have been granted, and that no personal judgment can be rendered on constructive service. It is not necessary to decide these questions, because.the appellants entered their appearance and filed answer, and thereafter the court entered an order setting aside the decree.

Our conclusion is that the evidence shows there was no service, and that Quarles had no notice, either actual or constructive. The decree of the chancery court is correct, and it is therefore affirmed.

Kirby, J., dissents.


author: McHaney, J.

text:
    Kyzer and Lackey v. State.
    Opinion delivered February 11, 1929.

      N. A. McDaniel, X. O. Pindall, Troy W. Lewis and Clayton Freeman, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellants were jointly indicted in two indictments, one for making mash and one for possessing a still. The two cases were consolidated by agreement, and the consolidated trial resulted in a verdict and judgment against them, by which they were sentenced to the penitentiary for one year on each indictment. Several errors are assigned for the reversal of these judgments.

1. That the indictments seek to enforce statutes combining a dual sovereignty, each foreign to the other, making it criminal in one to do an act without complying with the requirements of the other. One indictment charges that they “did unlawfully and feloniously make and ferment a large quantity of mash, wort or wash fit to be used in the distillation, making and the manufacturing of alcoholic, vinous, malt, spirituous and fermented liquors, * * * not being persons then and there authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages or spirits for other than beverage purposes.” The other indictment charges that they “did unlawfully and feloniously have and keep in their possession a certain still for the purpose of using same, and which, when set up, might be used for the production of distilled alcoholic spirits, without having registered said still with the proper United States officers. ’ ’

It is argued that there is no authority in the State to enact act ,324 of the Acts of '1921, page 372, the authority under which these indictments were returned, because neither the Volstead act nor the Eighteenth Amendment to the Constitution of the United States authorizes such legislation. A sufficient answer to this contention is that the State’s right to enact such legislation as contained in the act of 1921 is not dependent upon either the Eighteenth Amendment or the Volstead act. But, even if it were so dependent, the second section of the Eighteenth Amendment specifically provides that “the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. ’ ’

In U. S. v. Lanza, 260 U. S. 377, 43 S. Ct. 141, the Supreme Court of the United States held directly to the contrary of appellant’s contention. It was there held that both the Congress and the several States might pass such prohibitive legislation, carrying into effect the amendment, as might seem proper. Mr. Chief Justice Tart, speaking for the court, said:

“To regard the amendment as the source of the power of the States to adopt and enforce prohibition measures is to take a-partial and erroneous view of the matter. Save for some restrictions arising out of the Federal Constitution, chiefly the commerce clause, each State possessed that power in full measure prior to the amendment, and the probable purpose of declaring a concurrent power, to be in the States was to negative any possible inference that, in vesting the national government with the power of countrywide prohibition, State power would be excluded. In effect, the second section of the Eighteenth Amendment put an end to restrictions upon the State’s power arising out of the Federal Constitution,' and left her free to enact prohibition laws applying to all transactions within her limits. To be sure, the first section of the amendment took from the States all power to authorize acts falling within its prohibition, but it did .not cut down or displace prior State laws not inconsistent with it. Such laws derive their force, as do all new ones consistent with it, not from this amendment, but from power originally belonging to the States, preserved to them, by the Tenth Amendment, and now relieved from the restriction heretofore arising out of the Federal Constitution. This is the ratio decidendi of our decision in Vigliotti v. Pennsylvania, 258 U. S. 403, 66 L. ed. 686, 42 Sup. Ct. Rep. 330. We have here two sovereignties deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government, in determining what shall be an offense against its peace and dignity, is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and State sovereignties is an offense against the peace and dignity of both, and may be punished by each.”

Many convictions have be,en. sustained by this court on indictments drawn under authority of the act of 1921, from Logan v. State, 150 Ark. 486, 234 S. W. 493, down to the present case.

2. It is further argued that the indictments do not charge the statutory offense in the language of the statute, or in language of equal import. One of counsel for appellants, in oral argument, conceded that, as to the indictment for making mash, his • contention was erroneous, for the indictment does charge that the mash so made was “fit for and to he used in the distillation” of liquor. But it is contended as to the other indictment, charging the unlawful possession of a still, that it is defective in charging, as it did, that they had and kept “in their possession a certain still for the purpose of using same, and which, when set up, might he used for the production of distilled alcoholic spirits,” etc., does not charge the offense in the language of § 2 of the above mentioned act, nor in language of equal import. Section 2 of the act reads as follows:

“No person shall keep in his possession any still-worm or still, without registering the same with the proper United States officer, and no person shall set up to be used as a distillery, any stillworm or substitute therefor, and a still or substitute therefor, such as a kettle, washpot, metal tank, or any other vessel of any kind, for the purpose of using same, or which, after being so set uip, may be used for the production of distilled spirits.”

The indictment really charged more than was necessary to be charged in order to state an offense under the above section. The above section makes it unlawful for any person to keep in his possession any stillworm or still without registering’ the same with the proper United States officer. The mere possession of a still, whether set up or otherwise, and regardless of the intent with which it is possessed, is made an offense by said act. But we think the language used in the indictment charges the offense substantially in the language of the statute, or at least in words of equal import, and that appellants’ contention in this regard should be overruled. Rosslot v. State, 162 Ark. 340, 258 S. W. 348; Earl v. State, 155 Ark. 286, 244 S. W. 333.

3. It is next argued that the appellants were substantially prejudiced by being compelled to testify against themselves as to other offenses. Appellants were witnesses in their own behalf, and on cross-examination they were asked if they had not recently pleaded guilty before a United States Commissioner to the offense of possessing or transporting- whiskey. They both admitted that they had, over their objections. There was no error in this regard, as the court specifically stated that it went to their credibility, and their admission could not be used against them as affirmative testimony to prove their guilt of the offense charged. Shinn v. State, 150 Ark. 215, 231 S. W. 636.

Several other contentions are made by appellants for a reversal of the ease, all of which we have examined carefully, and do not find them to be meritorious. We think it would serve no useful purpose as a guide in future cases to discuss these questions separately.

We find no error, and the judgment is affirmed.


text:
    Robb v. Hoffman.
    Opinion delivered February 11, 1929.

      Jeff Bratton, for appellant.

      Block & Kirsch, for appellee.
   McHaney, J.

This case was tried on an agreed statement of facts substantially as follows: On August 9, 1911, R. S. L. Crockett and his wife, Martha, executed to J. C. Honey a mortgage on the 124 acres of land in controversy, to secure an indebtedness to Honey. The land was Crockett’s homestead, and he thereafter died, leaving a widow and eight minor children. At the November term of the chancery court of 1915, Honey foreclosed his mortgage, and Crockett’s widow, who at that time was Martha 'Crockett Finley, became the purchaser at the foreclosure sale, paying therefor $646.42. She borrowed the money to pay the purchase price at the .commissioner’s sale, for which she gave a note and mortgage, which was paid off in April, 1922. Apparently she borrowed the money with which to pay the last mentioned mortgage, for on February 8, 1922, she and her husband mortgaged the land to appellee, E. D. Hoffman, executing at the same time two mortgages, both bearing said date, a first mortgage for $550 and a second mortgage for $55. The second mortgage was payable in annual installments of $11 each, with interest from maturity, only one of which installments was paid, in 1923. Appellee, Hoffman, assigned a one-half interest in the second mortgage to Louis Linke, and at the April term, 1924, of the chancery ■ court, Hoffman and' Linke foreclosed the second mortgage as reformed, the land being incorrectly described therein, and at the commissioner’s sale under said foreclosure, appellant, A1 Robb, became the purchaser of said land, his bid being $1,670, the full value of said land.

Robb did not have actual knowledge of the existence of the first mortgage for $550 on said land, but, before paying the purchase price and before the confirmation of the sale, to-wit, on November 12, 1924, he filed a motion to set aside the sale, because he had discovered the existence of the first mortgage. The court overruled the motion to set aside the sale, hut approved and confirmed it, and on February 5, 1925, appellant paid the commissioner the amount of his bid and received a deed therefor. In November, 1924, four of the adult Crockett heirs intervened in the action, asking for a certain part of the proceeds of the sale to Robb. Martha Crockett Finley died on April 6, 1925, and the Paragould Trust Company was appointed administrator of her estate. Appellee Hoffman probated his first mortgage indebtedness of $550 with the administrator of her estate, which was allowed and approved. The administrator intervened in the action, claiming the fund in court, and all the Crockett heirs were brought into the litigation, who filed answer to the administrator’s intervention, and in December appellant, Robb, filed an intervention, to which an amendment was filed in March, 1926, setting up the facts aforesaid relative to his purchase, in which he claimed the right to have the fund in court used to pay off the first mortgage indebtedness. Thereafter appellee, Hoffman, filed his claim to foreclose the first mortgage for $550 with interest, making appellant, the administrator, and all the Crockett heirs defendants, to which appellant separately answered that he had purchased the land at the former foreclosure sale, and had paid to the commissioner $1,670, which was the full value of the land; that he had no knowledge at the time of his purchase of the first mortgage; that the.first mortgage should be paid out of the fund in court, and that his title to the land be confirmed and quieted in him. The court entered a decree dismissing appellant’s intervention and answer, in both suits, for want of equity, and rendered judgment in appellee, Hoffman’s, favor for the amount of his first mortgage and interest. It was further ordered “that the clerk shall pay to the plaintiff (Hoffman) his judgment and costs, after which the lands herein shall be treated as a substitute fund pending the litigation between M. A. Robb (appellant), upon the warranty of Mrs. Martha Finley and the administrator of the said Martha Finley and her heirs and assigns. The residue of the said fund arising from the sale aforesaid (meaning the sale to appellant), after the payment of plaintiff’s judgment, be distributed” to the Crockett heirs.

It will be seen, from the quotation from the decree first above set out, that the chancery court did not finally determine who was entitled to the land as between appellant Robb and the administrator of the Martha Finley estate. The decree recites that said lands shall be treated as a substitute fund pending the litigation- between appellant upon the warranty of Mrs. Martha Finley and the administrator of her estate, her heirs and assigns. It does not appear from this record that there is any litigation between appellant and the administrator and the heirs of Martha Finley upon any warranty of Mrs. Martha Finley. Appellant bought at a judicial sale, and the rule of caveat emptor applies. There was no warranty in the mortgage executed by Martha Finley to appellee, Hoffman, as against the first mortgage. The second mortgage, under which appellant' -bought at the foreclosure, specifically provides that it is a second mortgage, and the warranty clause provides that the lands are free and clear of incumbrances ‘ ‘ except a first mortgage in favor of E. D. Hoffman of Cape Girardeau, Missouri, for $550 and interest thereon.”

The court did, however, dismiss'appellant’s intervention and answer in both cases for want of equity, which was a final adjudication of the rights set up by him in his intervention and answer. Flanagan v. Drainage Dist. No. 17, 176 Ark. 31, 2 S. W. (2d) 70; Fox v. Pinson, 177 Ark. 381, 6 S. W. (2d) 518.

We are of the opinion that the court correctly decreed that the first mortgage for $550 and the interest thereon should be paid out of the fund in the hands of the commissioner, being the balance left from the sale to appellant under the second mortgage. But we are furthermore of the opinion that the court erroneously refused to determine the question as to appellant’s interest in the land. To reverse the case and remand it with directions to determine that question might cause another appeal, and would be a useless and expensive procedure to all parties concerned. We therefore proceed to determine that question.

In the case of Watts v. Blair, 137 Ark. 143, 208 S. W. 434, this court held that the purchaser of land at a mortgage foreclosure sale under a decree of the chancery court is entitled to the protection which the holder of the mortgage foreclosed enjoyed. In other words, the purchaser at a mortgage foreclosure sale steps into the shoes of the mortgagee in the mortgage foreclosed, axxd is entitled to all the rights such mortgagee had under the mortgage. Turman v. Bell, 54 Ark. 273, 15 S. W. 886; Bogenschultz v. O’Toole, 70 Ark. 253, 67 S. W. 400.

In 42 C. J. 258 it is said: “The purchaser at a sale uxxder foreclosure of a junior mortgage takes title to the land subject to the prior mortgage oxx the premises, even though the prior mortgagee is not made party to the foreclosure proceedings, and even though the prior mortgagee had previously foreclosed without makixxg the second mortgagee a party, and had bought in the property. But his liability is restricted to the extexxt of the ixxterest covered by the prior mortgage and of the claims secured thereby, and is entirely released as soon as the liexx of the prior mortg’age is disehax’ged.”

Had appellee, 'Hoffman, been the purchaser at the foreclosure sale ixxstead of Robb, and had bid the same amouxxt appellaxxt bid, undoubtedly he would have beexx entitled to deduct from the amount paid to the commissioxxer the amount of his first mortgage, axxd satisfy same of record, axxd we therefore fail to see axxy good reasoxx why appellant should xxot be entitled to have the first mortgage satisfied out of the amount of his bid, same beixig largely in excess of both mortgages and the ixxterest thereon. Moreover, the agreed statement of facts shows these two mortgages to Hoffman to be simultaneoxxs mortgages, although oxxe is denominated a first mortgage and the other a second, and although the first mortgage was recorded ahead of the second, and the general rule seems to be that, upon the foreclosure of either one of them, the surplus remaining after sale shall be applied to the satisfaction of the other.

Mr. Jones, in his work on mortgages, vol. 3 (8 ed.) § 2171, states the rule as follows:

“So, if• there be simultaneous mortgages upon the same land, they are in effect one instrument, and, upon the foreclosure of one of them, the surplus remaining after satisfying that is applicable to the payment of the other, althoug’h only part of it is due. When such mortgages are held by different persons, the money arising from the sale of the property should be equitably divided between the mortgages; the fact that one was recorded before the other does not matter, if both mortgages were made under an agreement entered into by the mortgagor at the same time with both mortgagees.”

Appellee, Hoffman, the holder of the first mortgage, cannot complain, as his indebtedness is fully paid. The administrator of Martha Finley’s estate is in no position to complain, since the obligation under the first mortgage was presented to it and allowed, and, even though this fund in its entirety had been turned over to the administrator as an asset of her estate, less the amount of the second mortgage, it would have been under the obligation of paying said claim out of said fund. The Crockett heirs are in no position to complain, because the facts show that the amount of both mortgages involved in this litigation was but a continuance of the mortgage indebtedness due by their ancestor to J. C. Honey.

We therefore conclude that appellant was entitled to have the title to the land in controversy quieted in him as against all of the other parties to this litigation. The decree will therefore be reversed in this regard, and remanded with directions to enter a decree in accordance with this opinion. It is so ordered.


author: Hart, C. J.,

text:
    Reddin v. Cottrell.
    Opinion delivered February 18, 1929.

      Gaughan & Gifford, C. L. Poole and John Baxter, for appellant.

      Compere & Compere and J. R. Wilson, for appellee.
   Hart, C. J.,

(after stating the facts). It is first sought to uphold the decree on the ground that the plaintiff was entitled to the 280 acres of land in controversy, or the proceeds thereof, after the death of Mrs. Eliza P. Hall, which occurred in October, 1924. This contention is made under the provisions of § 3 of the will of John B. Hall, which is copied in our statement of facts, and need not be repeated here. Reference to that section of his will shows that he gave Eliza F. Hall all of his property, after the payment of certain legacies, to have and to hold during her natural life, with the right to sell and convey the ■same without restriction or limitation. The 280 acres of land in question was the property so devised to Mrs. Hall. The section of the will contained a proviso that, if Mrs. Hall died seized and possessed of any part of this property, then it should go to the plaintiff. This court has repeatedly held that, where a testator gives an estate for life only, with power in the life tenant to convey the estate absolutely, the life tenant may defeat the estate of a remainderman by the exercise of such power. Archer v. Palmer, 112 Ark. 527, 167 S. W. 99; Thurman v. Symonds, 126 Ark. 216, 190 S. W. 106; Union Mercantile & Trust Co. v. Hudson, 143 Ark. 519, 220 S. W. 820 ; Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655; and Combs v. Combs, 172 Ark. 1073, 291 S. W. 818.

In the application of the settled rules of construction decided in these cases, Mrs. Hall had the absolute right to convey the property to the defendant, W. R. Reddin, and it was not necessary for him to have procured a quitclaim deed from the plaintiff. IV. R. Reddin was a brother of Ira Reddin, the first husband of the plaintiff, and, according to his testimony, he obtained the quitclaim deed merely because he wished to have the sanction of the plaintiff to the trade. He testified that he went on the place and took charge of it, and cared for Mrs. Hall, with the consent and approval of the plaintiff. According to the testimony of the plaintiff, she executed the quitclaim deed because the attorney for the defendant told her that her interest in the property was recognized, and that she would have the .same interest in the proceeds derived from the sale of the land as she would have had in the land itself. "We need not decide this question of fact, however, for, if Mrs. Hall had the'power under the will of her husband to convey the land to the defendant Reddin, it was not necessary to obtain a quitclaim deed from the plaintiff. The title to the land, under -the authorities above cited, immediately became vested in the defendant Reddin after the execution of the deed by Mrs. Hall and his acceptance thereof. It did not make any difference whether she collected any of the purchase price of the land from the defendant Reddin or not. After her death, whatever was due from Reddin became a part of her estate, to be distributed under the- terms of her will. Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655.

If the conveyance by Mrs. Hall to W. R. Reddin had been a simulated conveyance, then the plaintiff would be entitled to the land upon the death of Mrs. Hall. The reason is that, if the transaction was a simulated one, the title would not pass from Mrs. Hall to W. R. Reddin. There is nothing whatever in the record, however, to show that the transaction was a simulated one. The record does show that Mrs. Hall was opposed to the second marriage of the plaintiff, and for that reason conveyed the land to W. R. Reddin. This fact, however, does not make any difference. Under the will of her husband she had the absolute power and right to convey the land, and it did not make any difference what her motive was. All that the court could concern itself with was whether or not the transaction was real or simulated. We are of the opinion that, under the terms of the will, Mrs. Hall had a right to convey the land to W. R. Reddin, and that he acquired the title thereto by the conveyance to him from Mrs. Hall on the 25th day of June, 1918, and that the plaintiff had no interest whatever in the proceeds which Mrs. Hall might acquire from the sale of the land.

Again, it is insisted by the plaintiff that John B. Hall and his wife agreed to make a will' in favor of the plaintiff in consideration of her support during their natural lives, and that this agreement on her part was substantially performed by her to such an extent that equity should grant her relief equivalent to specific performance, and should impose a trust upon the property for her benefit. If it be conceded that the facts bear out her contention in this respect, she is barred of relief by the statute of limitations, which was pleaded by the defendant Reddin. John B. Hall died on the 21st day of April, 1915, leaving a will in wliicli he devised the land in question to his wife with absolute power of disposal, and the remainder to the plaintiff. This will was duly offered for probate, and Mrs. E. F. Hall became the executrix. The plaintiff and her husband assisted in the probate of the will, and it is fairly inferable that plaintiff knew of the claim of Mrs.-Hall to the property under the terms of the will. In any event, plaintiff was put on notice of the claim of Mrs. Hall when she conveyed the land to W. R. Reddin on the 25th day of June, 1918. The present suit was not instituted by the plaintiff until December 16, 1925, so if will be seen that, under any statute of limitations, the plaintiff would be barred of her relief under this contention. Goff v. Beaty, 157 Ark. 212, 247 S. W. 787.

The main reliance of the plaintiff to uphold the decree is that the facts establish a parol agreement on the part of John B. Hall and Eliza F. Hall to convey the land in question to her .for the services she and her husband should render towards the support of Hall and his wife during the remainder of their lives, and that possession was delivered to her, and that she made valuable improvements in reliance on said parol contract. If it be conceded that the facts establish her contention and bring the ease within the principles of law applicable thereto, as decided by this court in Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896, and Rugen v. Vaughan, 142 Ark. 176, 218 S. W. 205, still plaintiff is barred by the statute of limitations. As we have already seen, Mrs. Eliza F. Hall executed a deed to said land to W. R. Reddin on the 25th day of June, 1918, and W. R. Reddin at once went on the land, and has been in possession of it ever since. Mrs. Hall subsequently recognized the deed to Reddin as binding on her, and gave the plaintiff notice to move away from the place. The plaintiff was put upon notice of the claim of Reddin to the land. The plaintiff moved away from the land on the first of November, 1918. The present suit was not instituted until December 16, 1925. During all this time W. R. Reddin was in possession of the land, claiming' it under the deed of Mrs. Eliza F. Hall to him. This constituted a period of time more than seven years, and, as far as the plaintiff was concerned, W. E. Eeddin acquired title to the land by adverse possession. W. E. Eeddin went into actual possession of part of the land described in the deed from Mrs. Hall to him, ✓and this gave him constructive possession of all the land within the calls of his deed. Moorehead v. Dial, 134 Ark. 548, 204 S. W. 844; Hargis v. Lawrence, 135 Ark. 321, 204 S. W. 755; and Carter v. Stewart, 149 Ark. 189, 232 S. W. 936.

The result of our views is that the chancery court erred in not finding that the plaintiff was barred of relief in this action; and for that error the decree must be reversed, and the cause will be remanded with directions to the chancery court to dismiss the complaint of the plaintiff for want of equity. It is so ordered.


text:
    Wright v. Lake.
    Opinion delivered February 18, 1929.

      M. A. Matloch and J. B. Wilson, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Hart, C. J.,

(after stating the facts). The court •sustained a demurrer to the complaint in each case, and rendered judgment accordingly. The allegations of the complaint are the same, except as to the amounts due, and the demurrer confesses them to be true. 'Contrary to the common-law rule, under our Code every possible intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever. Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923, and Penix v. Shaddox, 169 Ark. 132, 273 S. W. 364.

■Counsel for the defendant first seek to uphold the judgment of the circuit court on the ground that the cause of action is barred by the statute of limitations. We do not agree with counsel in this contention. According to the allegations of the complaint in each case, the defendant concealed from the plaintiff the withholding of certain part of the earnings of the partnership for the three years set out in the complaint. It is alleged that the plaintiff had no voice in the management of the business, and did not actively assist in carrying it on. On the contrary, it is alleged that the defendant Lake was the actual manager of the business, and fraudulently concealed from the plaintiff that he had failed to pay him a part of his earnings for the three years specified in the complaint and that he had converted same to his own use. It is further alleged that notice of the fraud was not acquired by the plaintiff until October 1, 1926. The original complaint was filed on the 8th day of April, 1927, and summons was served on the defendant on the 9th day of April, 1927. The amendment to the complaint was filed on May 26, 1928. Therefore the cause of action is not barred by the statute- of limitations. It is well settled in this ‘State that, where there has been a fraudulent concealment of the cause of action, the statute of limitations does not begin to run until the fraud is discovered. Conditt v. Holden, 92 Ark. 618, 123 S. W. 765; Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 141; Meier v. Hart, 143 Ark. 539, 220 S. W. 819; Greer v. Craig, 165 Ark. 209, 263 S. W. 400; and Valley Planting Co. v. Currie, 173 Ark. 862, 293 S. W. 746.

Counsel for the defendant also seek to uphold the judgment of the circuit court in sustaining the demurrer to the complaint under the well-settled rule that, in a suit for accounting* and settlement of partnership affairs, the jurisdiction of equity is practically exclusive. Short v. Thompson, 170 Ark. 931, 282 S. W. 14; Tankersley v. Patterson, 176 Ark. 1013, 5 S. W. (2d) 309. The reason is that equity has almost exclusive jurisdiction in suits between partners where an accounting is necessary of some equitable relief required, such as opening up a settlement for the purpose of adjusting the accounts between the partners.

There are certain exceptions, however, to the general rule. In the instant case the partnership had been dissolved, and the plaintiff in each case had sold out his interest to the defendant Lake. The wrong complained of does not involve a readjustment of the partnership business or accounts. The contract of dissolution stands, and the partnership relation no longer exists. The ground of action is in no way connected with the state of the partnership business, except that the defendant is alleged to have withheld from the plaintiff a part of the profits for three different years and to have converted the same to his own use. A certain specified and definite amount is alleged to have been withheld by the defendant for three different years, and to have been fraudulently converted to his own use. The alleged fraud and deceit is not asked to be a ground for setting aside the settlement between the partners or for reforming the accounts. The rig'ht of the action in this case is the alleged tort of Lake in fraudulently withholding from the plaintiff in each case a certain part of the profits of the partnership for three different years, and converting the same to his own use. The former partnership between the parties is in no way concerned, and there is nothing in the former partnership relation which prevents the maintenance of this action for the alleged deceit. Crockett v. Burleson 60 W. Va. 252, 54 S. E. 341, 6 L. R. A. (N. S.) 263; Russell v. Grimes, 46 Mo. 410; French v. Mulholland, 218 Mich. 248, 187 N. W. 254, 21 A. L. R. 1, and case-note at 97; and Farnsworth v. Whitney, 74 Me. 370, where fraud was alleged in the settlement lof partnership affairs, which case held that the defrauded partner could bring a.n action on the case for deceit.

This principle was recognized and approved hy this court in Hamilton v. McGill, 152 Ark. 587, 239 S. W. 721, and Phillips v. Mantle, 136 Ark. 338, 206 S. W. 660. The reason is that no reopening or readjustment of the partnership accounts is necessary in such a case, and the plaintiff, having affirmed the dissolution of the partnership except as to the fraud alleged to have been practiced upon him, has a remedy at law for the alleged fraud and deceit.

It follows that the court erred in sustaining the demurrer to the complaint in each case, and for that error the judgment must be reversed, and the cause remanded for- further proceedings. In this connection it may be stated that a defendant sued at law must make all the defenses he has, both legal and equitable; if any of them are exclusively cognizable in equity, he is entitled to a transfer to equity. Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; and Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557.

It follows that the judgments will be reversed, and the causes will be remanded for further proceedings according to law and not inconsistent with this opinion.


text:
    Fox v. Harrison.
    Opinion delivered February 18, 1929.

      Hughes & Davis, for appellant.

      Z. B. Harrison and Frank Berry, for appellee.
   Smith, J.

Appellant brought this, suit against the prosecuting attorney of the Second Judicial Circuit, of which Crittenden County is a part, and the sheriff and other peace officers of that county, to restrain them from interfering with him in the operation of a dog-racing track in that county. A demurrer to his complaint was sustained, and it was dismissed as being without equity, and he has duly prosecuted this appeal.

Plaintiff alleged that he had invested $150,000 in a plant for the .conduct of the races, which were to begin Monday, October 10,1927, at 8 p. m., and to continue until Saturday, November 26, 1927, at 11 p. m., Sundays alone excepted. It was alleged that thousands of people, men,women and children, would attend these races, eight in number each night, which would be conducted in an orderly manlier, if the defendant officers were enjoined from interfering with them. The complaint alleged in detail the manner in which the races are conducted and the sources from which funds are derived to pay the prizes to be awarded to the dogs which run, first, second and third, in each of the races.

It is not contended that wagers are not laid on the chances of the different dogs to win the races in which they are entered as contenders for the' respective prizes, but it is insisted that making wagers upon races other than horse races is not illegal under the laws of this. State, and that the defendants are about to destroy property valuable only as a dog-racing plant, and which is not an unlawful business. In support of this insistence it is pointed out that in the early case of State v. Rorie, 23 Ark. 726, it was held that betting upon a horse-race was not unlawful under the gaming statutes of the State, and that in the case of State v. Vaughan, 81 Ark. 117, 98 S. W. 685, 7 L. R. A. (N. S.) 899, 118 A. S. R. 29, 11 Ann. Cas. 277, it was said that: “It will not do to overrule State v. Borie merely because against the weight of authority; there is good reason to sustain the distinction therein made, and it has been acquiesced in by the State for 45 years, when at any time it could have been changed by legislation. Therefore it must be taken in this case that betting on horse-racing is not a crime of itself.”

It is further argued that, at a session of the General Assembly which convened soon after the opinion in the Vaughan ease was handed down, § 2669, O. & M. Digest, was enacted (act February 27, 1967, page 134), making it unlawful to bet on a horse-race run in or out of this State, and, inasmuch as betting on horse-races was therein prohibited, while other kinds of races were not included, the purpose of the Legislature was manifested to malee betting on races unlawful only when the races were horse-races, and that betting on dog and other races remains innocuous and lawful, and therefore the peace officers should be enjoined from interfering with the plaintiff in affording persons who desire,to indulge in this pleasurable and innocent pastime the opportunity to do so.

We think there are two sufficient answers to these arguments, either of which amply supports the action of the court below in sustaining the demurrer and dismiss.ing the complaint as being without equity. The first is that learned counsel for appellant do not give to the act of 1907 (§ 2669, O. &-M. Digest) its full effect. Immediately prior to the passage of this statute the court had called attention to the fact that for forty-five years the Legislature had refused to enact a statute overturning the decision in the case of State v. Rorie, supra, “that betting on horse-racing is not a crime of itself, ’ ’ although, as was there pointed ont, the decision in the Rorie case, that horse-racing-was a sport, and not a g’ame, was against the weight of authority, which was to the contrary. The Legislature accepted this ¡challenge at its first opportunity, and enacted that betting on horse-races, whether run in or out of this State, should be unlawful.

The effect of this legislation was to completely destroy the authority of the Rorie case on this subject, and that of the Vaughan case, which followed it. We have therefore the liberty — of which the court in the Vaughan case felt itself restrained — to follow the weight of authority, uninfluenced by the doctrine of the Rorie case. Being thus emancipated, we feel constrained by considerations of public morals, as well as by the better reasoning of the adjudged cases, to follow the weight of authority, and we now hold that racing, whether by men, horses, dogs or other animals, or by animals of one kind against those of another, is a game, and one who bets on such a race offends against the statute prohibiting betting on games.

In the case of Mace v. State, 58 Ark. 79, 22 S. W. 1108, it was held that baseball was a game within the meaning of the statutes which makes betting on “any game of hazard or skill” an offense. However, Justices Battle and Mansfield dissented in that case upon the ground that the Rorie case, supra, controlled.

The second reason for affirming the decree appealed from is that it is in exact harmony with the Vaughan case, supra. Notwithstanding the fact that the court held in the Vaughan case that betting on horse-races was not unlawful, it was held in the Vaughan case that the maintenance of a place wherein money is received, won and lost on horse-races is a nuisance at common law. It was there said:

“What is the status of such a house, notwithstanding it is conducted in a quiet and orderly manner, without unusual noise or disorderly conduct? At common law there were no statutes against gaming, yet the maintenance of a gaming house was a criminal nuisance, indictable and punishable as such. Mr. Justice Scott for this court said: ‘Independent of any statute, the keeping of a common gaming house is indictable at common law on account of its tendency to bring together disorderly persons, promote immorality, and lead to breaches of the peace. Such an establishment is thus a common nuisance.’ Vandeworker v. State, 13 Ark. 700. Chief Justice Watkins for this court said: ‘At common law, gaming houses were indictable as <a public nuisance (Vandeworker v. State, 13 Ark. 700), but, unless restrained by express statute, ordinary wagers or betting were tolerated as. being for amusement or recreation.’ Norton v. State, 15 Ark. 71.”

After making it .clear, upon a review of the authorities, “that the fact that betting on horse-racing is not within the gaming statutes does not prevent á house maintained for such business being a criminal nuisance,” it was pointed out that “the punishment for common-law offenses not covered by statute is fixed as a fine not exceeding $100 and imprisonment not to exceed three months. Kirby’s Digest, § 623 and 624,” and that “these statutes have 'been held applicable to a gaming house as a common misdemeanor” (Citing authorities).

The opinion in the Vaughan case concluded by saying:

“It is not only the right, but the sworn duty of every prosecuting attorney, to proceed by information in justice’s or circuit court to close these illegal places when they have information of them; it is not only the right but the duty of every grand jury to find the existence of such places, if they exist, and to indict the keepers thereof. It is also the privilege of any citizen to proceed against them at any time, by affidavit, before a justice of the peace. There is no possible excuse under the law for a pool-room — a place maintained for carrying on or facilitating betting on horse-races or any other sport or game, or .contest, or other event upon which wagers are laid — to exist in Arkansas for one minute. This maintenance is a .crime, nothing more, nothing less. ”

In view of the forceful statement of the duty of the public officers and of the rights of the citizens to proceed in the suppression of such places as appellant proposes to operate, we must hold that the chancellor was clearly correct in refusing to restrain the officers from discharging this. duty.

The decree of the court is therefore affirmed.