author: Hart, C. J.,

text:
    Franklin Fire Insurance Company v. Butts.
    Opinion delivered October 5, 1931.

      D. D. Terry, for appellant.

      J. M. Jackson, Jas. S. MoCo'tmell and J. 8. Butt, for’ appellees.
   Hart, C. J.,

(after stating the facts). It is first con-

tended that A. R. Crumb acquired an interest in the land by the tax sale in 1926 for the taxes of 1925, and that thereafter E. M. Butts was not the sole and unconditional owner of the property, and therefore the fire insurance policy was null and void. We do not agree with counsel for the insurance company in this contention. We set out in our statement of facts the substance of the “sole and unconditional ownership clause” of the policy. We do not deem it necessary to set out the clause in full for the reason that, under the facts of the case, we do not bbink that it has any application. The mortgage foreclosure suit brought by A. R. Crumb against E. M. Butts, is reported in 182 Ark. 286, 31 S. W. (2d) 307. According to the pleadings in that case, as will be seen from an examination of the transcript, Crumb did not claim any interest in the land by virtue of his purchase of the tax title, but only asked that he be allowed the- sum of $448 paid for the conveyance of the tax title. The defendant contested this for the reason that the taxes only amounted to about $35. The defendant also contested the forer closure suit on the ground of usury. Both of these- contentions were found against the defendant Butts by the chancery court, and a decree was entered of xacord accordingly. The decree of the chancery court was affirmed upon appeal. These facts are inf erentially shown by the opinion in that case and are conclusively shown by an examination of the transcript.

But it is claimed that the Franklin. Fire Insurance Company was not a party to that suit and was not bound by the proceedings thereunder. In the first place, t,he insurance company could not claim, any ehang’e of interest or ownership in the property which was not claimed by either of the parties to that proceeding.

In the second place, the record in the present- case shows that the parties agreed that A. R. Crumb is claiming as garnishee creditor and.-not under the mortgage clause or as assignee of the mortgage. This- shows that the parties agreed that Crumb was only asserting a right to garnishment of the proceeds of the insurance -under his deficiency judgment in the foreclosure decree. This is made plain by the allegations of the complaint in the present case. The insurance company cannot claim that Crumb had any other or different interest in the property than that claimed and alleged by himself. .This question was expressly adjudicated in favor of Butts in. the foreclosure proceeding, and. the decree in that case was affirmed upon appeal. Hence we are of the opinion that the policy did not become null and void under the so-called “sole and unconditional ownership clause.”

In the present case, the policy contained a loss payable clause in favor of the John Guthrie Mortgage Company, as its interest might appear, and this showed actual knowledge of the mortgage to that company when the policy was issued. The policy having provided what the effect of that clause should be, it precludes any possible idea that the commencement of foreclosure proceedings under the mortgage should render the policy void. The stipulation that the commencement of foreclosure proceedings should render the policy null and void evidently referred to other foreclosure proceedings than that by John A. Guthrie Mortgage Company or its assignee, for the policy was made payable to that company as its interest might appear, and further provided that the policy should not be invalidated by any foreclosure of the property or by any change in title or ownership under the mortgage.

In the forfeiture clause of the policy, among other things, it is stipulated that, if the property or any part thereof shall hereafter become mortgaged or incumbered, or upon the commencement of foreclosure proceedings, without the written consent of the insurer, the policy shall be void. The connection with which the phrase, ‘ ‘ or upon the commencement of foreclosure proceedings,” is used, indicates that it refers to mortgages to be executed in the future. After inserting clauses relating to lightning and other matters, the policy recites that there is an indorsement attached to the policy which is called the mortgage clause. It provides that the loss or damage to the buildings covered by the policy shall be payable to the John A. Guthrie Mortgage Company as first mortgagee, “as interest may appear, and this instrument, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property,” etc.

It is argued that this means that foreclosure proceedings as to the John A. Guthrie mortgage would invalidate or render void the policy in so far as the mortgagor is concerned. We do not think so. This clause was inserted for the benefit of the mortgagee and was intended to protect its rights, so that, if the mortgagor gave other mortgages after the issuance of the policy with the written consent of the insurance company, a foreclosure of such mortgage, while it would avoid the policy as to the mortgagor under the forfeiture clause, would not affect the rights of the mortgagee. It is the settled rule of law in this State that if any ambiguities appear in an insurance policy which may be susceptible of two reasonable constructions, the one which is most favorable to the insured and which will give life to the policy should be adopted. The reason is that such provisions are inserted in blank forms prepared by the insurance company for its benefit in which the insured has no voice. Importers’ & Exporters’ Ins. Co. v. Jones, 166 Ark. 370, 266 S. W. 286; Connecticut Fire Ins. Co. v. Boydstun, 173 Ark. 437, 293 S. W. 730; National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. (2d) 786; and Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310.

Indorsements on an insurance policy form a part of it, and the policy of insurance with the indorsements or riders thereon must be construed as a whole. American Ind. Co. v. Hood, 183 Ark. 266, 35 S. W. (2d) 353.

We therefore conclude that the policy of insurance did not become void by the commencement of foreclosure proceedings by the assignee of the mortgage executed by the insured to the Guthrie Mortgage Company.

Having decided that the company is liable under the terms of the policy, we now come to the question whether Crumb or Butts is entitled to recover. The clause which we have copied in our statement of facts provides that the policy shall be payable to John A. Guthrie Mortgage Company as its interest may appear. Crumb became assignee of the mortgage and notes which the mortgage was given to secure, and the mortgage company thereafter ceased doing business. The assignment of -the mortgage does not transfer the contract of insurance, where the mortgage clause is not for the benefit of the assignee, but is limited to the mortgagee, and the assignee of the mortgage has no right of action at law as mortgagee to recover for a fire loss. Weinberger v. Agricultural Insurance Co., 8 N. J. 202, 76 Atl. 343; and Newark Fire Ins. Co. v. Simmon Turk, 6 Fed. (2d) 533, 43 A. L. R. 496. See also 14 R. C. L. 1114; and 41 C. J. 682.

The reason is that the clause of a policy providing for payment of indemnity to the mortgagee as his interest may appear is not an assignment of the policy. It creates an agreement between the insurer and the mortgagee binding even after the insured owner has alienated his property. It will be readily seen that an insurance company might be willing to make a contract of this kind with the mortgagee and not with an unknown person as his assignee.

An additional reason why Crumb may not recover is because the parties have expressly stipulated that A. R. Crumb is claiming as garnishee creditor and not under the mortgage clause or as assignee of the mortgage, and the parties must be bound by their agreement.

The most troublesome question in the case is whether or not the proceeds of insurance become substituted for the property itself, and that therefore the insured may claim it is exempt from the deficiency judgment. The property which was insured against loss by fire in the present case was the'homestead of Butts, and the question is does the insurance money take the place under our execution laws of the property destroyed and like it also exempt and not liable to garnishment? It is claimed that this question is answered in the affirmative by the weight of authority. Be that as it may, we think such holding constitutes the better reasoning on the subject. Under our Constitution and statutes, the homestead of a debtor * is exempt from execution and is not subject to the lien of a judgment except in certain specified instances, and the record in the present case does not show that the debt belongs to one of the excepted classes. It is the settled policy of this court that our homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they are intended. Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A, 999.

Not to allow the insurance money to take the place of the property destroyed and be exempt from liability for the debts of the¡ owner would be a mere evasion perverting the object and spirit of the law. The homestead is exempt under the Constitution and statutes from the lien of a judgment in cases like this, and the owner may insure it to protect himself and family from loss. It is well settled that if a mortgagor insure the premises, without any contract with the mortgagee binding him to do so, he is entitled to the insurance in case of loss, and the mortgagee has no lien on it; and we think the insurance represents the property and is exempt from the claims of creditors. Culbertson v. Cox, 29 Minn. 309, 13 N. W. 177, 43 Am. Rep. 204, and cases cited; Bernheim v. Davitt, (Ky.) 5 S. W. 193; Rulo v. Murphy, (Ky.) 51 S. W. 312; Houghton v. Lee, 50 Cal. 101; Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 A. S. R. 742; Ellis v. Pratt City, Southern Ins. Co., Garnishee, 111 Ala. 629, 20 So. 649, 33 L. R. A. 264, 56 Am. St. 76; and cases cited in a note to 45 A. S. R. at 238. See also 13 R. C. L. 585, and 29 C. J 839. These text writers and several of the cases above cited recognize that the weight of authority is in accord with the rule above announced.

In a case note to 45 A. S. R. at 238, it is claimed that those cases which hold that the proceeds of such an insurance policy is not within the homestead laws follow the letter and ignore the spirit of the law. The annotator calls attention to the object of the homestead laws which is to assure heads of a family the comfort and protection of a home. This object may be thwarted if the home may not be protected by insurance; and if, although so protected, when the home is destroyed, the family should be left without a house while the creditor is awarded the proceeds • of the protection made by the debtor for his family. Hence, we hold that the better reasoning is that the proceeds of such an insurance policy take the place of the property itself, are substituted for it in fact, and cannot be reached in garnishment proceedings at the instance of a creditor in cases like this one.

We think this view is in accord with the decision in Probst & Hilb v. Scott, 31 Ark. 652. We call attention to the concluding language of the opinion, which is as follows: “The property being exempt, it is but reasonable that the compensation for: the loss, which represents the property, should also be exempt.” The case of Houghton v. Lee, 50 Cal. 101, is cited in support of the holding. In that case the court expressly held that if a wife declared a homestead on common property and a husband procures a policy of insurance thereon, and the house is destroyed by fire, the sum due from the insurance company is not subject to garnishment by a judgment creditor of the husband.

Finally, it is contended on the part of Butts that the court erred in not allowing him attorney’s fees and penalty under the statute. In this contention we think his counsel is correct. No issue was made at the trial of the right of the company to deduct the outstanding premium note. The company denied any liability under the policy. If it merely wished to be released from the responsibility of deciding which of the two claimants was entitled to the proceeds of the insurance policy, it should have made a deposit of the amount in the registry of the court and thus relieved itself of any further responsibility in the matter. New York Life Ins. Co. v. Adams; 151 Ark. 123, 235 S. W. 412; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366.

The amount of the policy in the present case was $1,500, and we think $150 was a reasonable attorney’s fee and should have been allowed by the court, and in addition the court should have allowed the statutory penalty of twelve per cent. In other respects, the decree of the lower court will be affirmed, and the clerk of this court will be directed to add the attorney’s fee and statutory penalty as indicated in this opinion in favor of the defendant Butts against the insurance company.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Townsend v. McDonald.
    Opinion delivered October 5, 1931.

      A. J. Russell, Osro Cobb, 8am M. Clark, A. J. Russell, Jr., and Robert A. Zebold, for appellant.

      Hal L. Norwood, Attorney General, for appellee.
   Hart, C. J.

Wallace Townsend, for himself and other legal voters, seeks by mandamus to compel Ed. F. McDonald, as Secretary of State, to file a petition for a referendum on act 345 passed by the last Legislature. Act 345 is entitled “An act to provide for the creation of county boards of election commissioners and the appointment of election judges and clerks.” Acts of 1931, p. 1117. The Secretary of State refused to file the petition because there was not a full and correct copy of the act attached to it.

Our Initiative and Referendum Amendment to tile Constitution was adopted at the general election in 1920, and the text of it may be found in the Acts of 1919 at page 481 and in Applegate’s Constitution of Arkansas Annotated at page 203. The amendment commences as follows: “That § 1 of article 5 to the Constitution of the State of Arkansas and Amendment No. 10 thereto be amended so as to read as follows.” Then follows the complete text of the amendment. It provides that the second power reserved by the people is the referendum, and any number, not less than six per cent, of the legal voters, may, by petition, order the referendum against any general act or any item of an appropriation bill, or measure passed by the General Assembly, etc. The amendment concludes as follows:

“ Sele-exectjting. This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the -people. ’ ’
“That this Amendment to the Constitution of the State be, and the same shall be in substitution of the Initiative and Referendum Amendment, approved February 19,1909, as the same appears in the Acts of Arkansas for 1909, on- pages 1239 and 1240 of the volume containing the same; and that the said amendment (and the act of the General Assembly to carry out the same, approvéd June 30, 1911, so far as the same is in conflict herewith), be and the same are hereby repealed.”

The original amendment providing for the Initiative and Referendum above referred to provides that the referendum may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by petition signed by five per cent, of the legal voters or by the legislative assembly as other bills are enacted. The amendment concludes as follows: “Petitions and orders for the Initiative and for the Referendum shall be filed with the Secretary of State, and in submitting the same to the people he and all other qfficers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor.” Acts of 1909, p. 1238.

Pursuant to the. power given by the clause of the amendment to the Constitution just quoted, the Legislature of 1911 passed an act the title of which reads as follows: “An act to provide for carrying into effect the initiative and referendum powers reserved by the people in Amendment No. 10, to the Constitution of the State of Arkansas on general county and municipal legislation, to regulate elections thereunder and to punish violations of this act.” Acts of 1911, p. 582. Section '2 of the act provides the form for the petition and order for a referendum and isi § 9766 of Crawford & Moses’ Digest. Section 7 of' the act provides for printed copies of measures referred to be attached to the petition and is § 9768 of Crawford & Moses’ Digest, which reads as follows:

“Copy of measure to be attached. To every petition for the initiative shall be attached a full and correct copy of the title and the measure proposed, and to every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered. The Secretary of State shall cause every measure approved by the people to be printed with the general laws enacted by the next ensuing session of the General Assembly with the date of the Governor’s proclamation declaring the same to have been approved by the people. ’ ’

The general rule of construction applicable to constitutional amendments is that the later amendment governs to the extent that it is repugnant to or in conflict with the provisions of the former one. Chessir v. Copeland, 182 Ark. 425, 32 S. W. (2d) 301, and cases cited.

At the outset, it may be stated, that substance is more to be desired than form; and the will of the people, as expressed in the amendment, should be declared according to the plain and ordinary words used unless another and different meaning has been plainly expressed. It will be noted that the amendment provides that it shall be in substitution of the Initiative and Referendum Amendment approved February 9, 1909, and that said amendment and the act of the General Assembly to carry out the same approved June 30, 1911, so1 far as the same is in conflict herewith, be and the same are hereby repealed. This manifestly indicates the will of the people to leave in force the act of the General Assembly approved June 30, 1911, which was for the! purpose of carrying out the original amendment, except in so far as it is repugnant to or in conflict with the present amendment. It also indicates a purpose on the part of the people to authorize the Legislature to adopt a procedure in harmony with the amendment to carry out its provisions.. Otherwise the amendment itself would have declared that the act of the General Assembly referred to was repealed. Section 9768 of the Digest, which is § 7 of the act of 1911, expressly provides that to every petition for the initiative shall be attached a full and correct copy of the title and measure proposed, and to every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered. There is nothing in the section which is in conflict with or repugnant to the provisions of the constitutional amendment.

The purpose of the section with regard to petitions for initiative measures is clear. The people could not intelligently act on an initiative measure unless a copy of the measure itself was before them. The same reasoning would obtain in cases of a measure referred to the people. A full and correct copy of the measure attached to the petition would enable the signer thereto to act intelligently in the premises. Of course, he would not be required to read the measure, but it would be his duty to inform himself of its contents, and this would be a certain way for the signer to know that a different petition would not be presented from that signed by him. The signer would know that he was signing the measure passed by the Legislature and was not taking the opinion of any one else as to the meaning of it. Otherwise, those in charge of the petition, either designedly or ignorantly, might inform the petitioners that the meaning of the bill proposed to be referred was essentially and substantially different from tbe one actually passed by the Legislature. If a full and correct copy of the bill is attached to the petition, the voter can decide that question for himself. Hence, a majority of the court is of the opinion that the requirement is clearly jurisdictional, and that the Secretary of State is without power to act in the absence of a substantial compliance with this requirement of the statute.

In determining whether the words of a statutei shall have a mandatory or directory effect ascribed to them, the purposes of the act, the end to be accomplished, the consequences that may result from one meaning or the other, and the context are to be considered. The statute relates to the limits of the power of the Secretary of State to file the petition, which was not in compliance with the requirements of the statute, and does not relate to the manner in which the power is to be exercised. Phillips v. State, 162 Ark. 541, 258 S. W. 403.

The statute was not passed as a mere matter of convenience or direction to be observed either by those circulating the petitions or by the Secretary of State. The act was passed as a safeguard to the rights of the voters to whom the petition was offered for signature. The requirement was intended to secure the voters whose interests were to be affected an opportunity to know what they were signing, and to know that they were not signing something different from those whose signatures appeared on the petition. This is a right of great benefit to the voters, and we do not think the requirement should be regarded as merely directory, but «.that it is a substantial right which is of a mandatory character, and must be complied with or the proceeding will be void.

In short, a majority of the court is of the opinion that the provisions of the act of 1911 above referred to are not repugnant to any of the provisions of the amendment under consideration, and that there is nothing in it which restricts or impairs the exercise of the rights reserved to the people by the amendment. If the framers of the amendment had thought otherwise, as above stated, the simple and natural thing to have done would have been to declare that the act of June 30, 1911, was repealed, and not merely that it was repealed in so far as it conflicted with the provisions of the later amendment to the Constitution.

We do not think there is anything in the case of State ex rel. v. Olcott, 62 Ore. 277, 125 Pac. 303, that is in conflict with this holding; but, on the contrary, we think that the decision in the present case is in harmony with that ease. The court there held that, if the petition for referendum substantially complied with the requirements of the law, that was all that was necessary. The court held that it was not necessary to have a full and correct copy of the title and text of the measure proposed attached to each sheet of the petition. This would make each sheet a separate petition and would be putting form above substance. No matter how many signers there are to a petition and how many sheets are used, they are pasted together and become a constituent part of the same petition. It is only necessary that a full and correct copy of the measure on which the referendum is asked be filed with the petition and attached thereto, in order that the petitioners may have the opportunity to read it and inform themselves as to the act to be referred before signing the petition, if they wish to do so.

Therefore, it is ordered that the petition for mandamus be dismissed.

■Mr. Justices Smith, Humphreys and Kirby, dissent.


author: Smith, J.

text:
    Huffman v. Henderson Company.
    Opinion delivered October 5, 1931.

      E. V. Betts, J. M. Shackleford and Coulter & Coulter, for appellants.

      J. K. Mahony, E, 8. Yocum, W. T. Saye and J. N. Saye, for appellees.
   Smith, J.

Prior to the assessment for the general taxes of 1924, there had been a severance of both the timber and the mineral rights from the north half of the northwest quarter of the northeast quarter of section 8, township 18 south, range 15 west, in Union County, Arkansas, and this severance had been effected by deeds duly executed and of record in that county.

The land above-described was assessed for the year 1924, and, no taxes being paid thereon, the same was sold in June, 1924, to P. M. Betts. On June 30, 1927, the tax purchaser having- died, the county clerk executed his tax deed to H. Y. Betts, the administrator of the deceased tax purchaser. The owners of the separate interests in the above-described land have joined in this suit to cancel the clerk’s deed, and from a decree awarding that relief is this appeal.

In support of this decree, it is insisted that the sale of said land was void because the separate interests in said land were not separately assessed. It is also insisted that there was no authority to execute a deed to the administrator of the tax purchaser, as the statute requires such deeds to be made to the heirs or assigns of the purchaser, and that the court below was correct in canceling the deed to the administrator, whether the sale was void or not.

At the 1897 session of the General Assembly an act was passed for the assessment of mineral rights, which appears as § 9856, Crawford & Moses’ Digest, and reads as follows: “When the mineral rights in any land shall, by conveyance or otherwise, be held by one or more persons, and the fee simple in the land by one or more other persons, it shall be the duty of the assessor when advised of the fact, either by personal notice, or by recording o'f the deeds in the office of the recorder of the county, to assess the mineral rights in said lands separate from the general property therein. And in such case a sale of the mineral rights for nonpayment of taxes shall not affect the title to the land itself, nor shall a sale of the land for nonpayment of taxes affect the title to the mineral rights.” Acts 1897, p. 38. .

“That mines may form a distinct possession and a different inheritance from the surface lands has been long settled in England,” as was said in the case of Caldwell v. Copeland, 37 Pa. St. 427, 78 Am. Dec. 436, and the act quoted was not intended to create these different estates, but to provide for their separate assessment for purposes of taxation. As these estates might be separately owned, the intent of the statute quoted was that they should be separately assessed, so that each owner might pay the taxes upon his own estate, and upon that only. This intent is unmistakably manifested in the provision that “ * * * a sale of the mineral rights for nonpayment of taxes shall not affect the title to the land itself, nor shall a sale of the land for nonpayment of taxes affect the title to the mineral rights.”

Many cases hy this court have settled the law that a valid assessment is essential to a valid sale, of the property taxed for the nonpayment of the taxes, and the description of the property assessed and sold must be such as to apprise, not only the owner, but all other persons, of the property to be sold. Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Cotton v. White, 131 Ark. 273, 199 S. W. 116; Buchanan v. Pemberton, 143 Ark. 92, 220 S. W. 660; American Portland Cement Co. v. Certain Lands, 179 Ark. 553, 17 S. W. (2d) 281.

Here the description employed at the sale described only the surface of the land, and contained no reference to the mineral or timber' rights. Such description is ordinarily sufficient to cover both the timber rights and the mineral rights, as well as the surface rights and an assessment and a sale under a description of the surface only would operate to include both the timber and mineral rights, unless there had previously been a severance of these rights. But the statute quoted has provided that there must be a separate assessment where there has been a previous severance, and that in such case the sale of one does not affect the title to the other.

The State of Minnesota has a statute (§ 1973, Gen. Stat. 1913) which reads as follows: “That whenever any mineral, gas, coal, oil, or other similar interests in real estate are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, such mineral, gas, coal, oil, or other similar interests may be assessed and taxed separately from such surface rights and interests in said real estate, and may be sold for taxes in the same manner and with the same effect as other interests * * * are sold for taxes.”

This statute is similar to ours except that it does not specifically provide, as does § 9856 of our statutes, that a sale of the mineral rights for the nonpayment of the taxes thereon shall not affect the title to the land itself, nor that the sale of the land for the nonpayment of the taxes thereon shall liot affect the title to the mineral rights.

A tract of land was sold in the State of Minnesota for the nonpayment of the taxes thereon, upon which the mineral rights, had been severed by a conveyance thereof, and it was held that: “A tax certificate, based upon tax proceedings in which the property is described by its government description, without mentioning a mineral interest owned separately from the surface, does not cover such mineral interest.”

In the opinion so holding (Washburn v. Gregory Company, 125 Minn. 491, 147 N. W. 706, L. R. A. 1916D, 304) it was said: “But it was the duty of the taxing officers, under the statute, as well as under the common law, to assess and tax separately the interests of plaintiff and those of the owner of the surface. The deed separating the mineral rig’hts from the surface rights was of record at the time the tax was levied and became a lien. It is to be presumed that the taxing officers intended to follow the law. These considerations are helpful in reaching a decision whether the description of the property used in the tax proceedings includes the mineral rights. It contains no mention of any such right or interest. Manifestly it would have been easy -to have described the property taxed as ‘mineral rights,’ as it would have been to describe it as ‘surface rights.’ The description used does neither, but is merely the government description. The interest of plaintiff in the minerals was plainly real estate, and properly taxable separately. The law directed the assessing officers to tax it separately. If the separate interest of the mineral owner is covered by this description, the result is that his property is taxed without notice to him, under the guise of taxing the property of another. The courts do not favor such a result. In Eastman v. St. Anthony Falls Water Power Co., 43 Minn. 60, 44 N. W. 882, the question was as to what land was included in the description used in the tax proceedings. Mr. Justice Vanderburgh said: ‘The title of each party being of record, it will not be presumed that the separate property of different parties is embraced under one general description in tax proceedings, if the same may be applied and limited to the land of one, and not to that of the other. The description, when applied to the subject-matter, * * * is susceptible of the construction claimed for it by the defendant. An opposite construction would be misleading, * * * and ought not therefore to be upheld.’ This language seems particularly appropriate here. The description in the case at bar when applied to the subject-matter, and viewed in the light of the facts and the law as they existed at the time the tax was levied, is fairly susceptible of the construction claimed for it by the plaintiff and adopted by the learned trial court. We therefore decide that the mineral or mineral rights of plaintiff were not covered by the description in the tax proceedings, and were not taxed in those proceedings.”

We have here the identical case except that § 9856 of our statutes declares the conclusions reached and announced by the Supreme Court of Minnesota in the construction of their statute, which is not as broad as ours.

Our statute upon the assessment of timber rights is more nearly like that of Minnesota above quoted. It was passed at the 1905 session of the General Assembly (Act April 7, 1905, p. 3'61), and appears as § 9855, 'Crawford & Moses’ Digest, and reads as follows: “Hereafter all timber in this State which has been sold separately and apart from the land on which it stands shall be classed as personal property, and shall be subject to taxation as such. And the said timber interests shall be assessed and the taxes collected thereon in the county where said timber is located.”

We feel constrained, therefore, to give our statute upon the assessment of timber rights (§ 9855, Crawford , & Moses’ Digest) the same construction as was given by the Supreme Court of Minnesota to the statute of that State above quoted. The statute of this State in regard to the assessment of mineral rights (§ 9856, Crawford & Moses’ Digest) is too unambiguous to admit of any other construction.

We therefore hold that, when there has been a severance of either the timber or mineral rights by a deed duly recorded in the office of the recorder prior to the assessment for taxation purposes, such rights must be assessed separately and apart from the surface rights, and when this has not been done the assessment made will be held to apply only to the surface rights, and a sale under this assessment will operate to convey only the title to the surface rights.

The case of Peterson v. Hall, 57 W. Va. 535, 50 S. E. 603, and other cases following it, which depended upon the construction of the taxation statutes of West Virginia, are cited as having reached the opposite conclusion. A headnote in the Peterson case reads as follows: “When the surface of land is owned by one person, the oil -in place by another, a sale for taxes in the name of the owner of the surface will pass also the oil owned by the other person, his estate not being charged on the tax books, under § 25, chapter 31, Code 1899.”

It was said in the opinion in the case of Peterson v. Hall, supra, that “Chapter 31, § 25, Code, makes a tax deed pass ‘such right, title and interest in and to said real estate as was vested in the person or persons charged with taxes thereon for which it was sold, at the commencement of, or at any time during the year or years for which said taxes were assessed, and all such right, title and interest therein of any other person having title thereto, who have not in his or their own name been charged on the land book of the proper county or assessment district, with the taxes chargeable on such real estate for the year or years for the taxes of which the same was sold, and, having actually paid the same as required by law, shall be transferred to and vested in the grantee in such deed.’ ”

We have no such statute. It was further said in the Peterson case that “A lease for oil confers no actual estate until oil is found, but only a right to explore and produce oil. Urpman v. Lowther Oil Co., 52 W. Va. 501, 44 S. E. 433, 97 Am. St. 1027,” and that “The South Penn Company had only an inchoate right. No taxable estate was then in the South Penn Company (the lessee) for want of development.”

We have held, on the contrary, that a conveyance of the mineral or the timber rights, or a reservation of such rights in a deed conveying the surface rights, creates, in one case and reserves in the other, a separate estate, and the statutes quoted (§§ 9855 and 9856, Crawford & Moses’ Digest) make this estate separately taxable. Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578; Claybrooke v. Barnes, 180 Ark. 678, 22 S. W. (2d) 390, 67 A. L. R. 1436.

The case of State, ex rel. Attorney General v. Arkansas Fuel Oil Co., 179 Ark. 848, 18 S. W. (2d) 906, was a suit for back taxes on certain oil leases which had not been separately assessed for taxation, and we were there called upon to construe § 9856, Crawford & Moses’ Digest, and we said: “We construe this statute to mean that the property conveyed to the lessee in mining lease is taxable separately from the land. This court has recently held that the rights granted to the lessee are not a license, but an interest and easement in the land itself,” and a number of cases to that effect were there cited.

We conclude, therefore, that the Minnesota case, supra, and not the West Virginia case, is applicable to the facts in this case.

In so far as the clerk’s tax deed to the administrator of the estate of the tax purchaser appears to convey title to either the mineral or the timber rights, it was properly canceled, and that decree is affirmed.

As to the form of this tax deed, it may be said that the statute (§ 10,108, Crawford & Moses’ Digest) provides that, upon the expiration of the two years after the sale allowed for the redemption, the clerk of the county court, on the production of the certificate of purchase, shall execute “to the purchaser, his heirs or assigns,”' a deed of conveyance for the land described in such certificate. The deed should therefore have been made to the heirs or assigns of the tax purchaser, and not to his administrator, as was done in this case.

This, however, was a mere error in the exercise of the power and duty conferred by the statute upon the clerk, and did not exhaust the power to execute a deed conforming* to the requirements of the statute, and that officer may yet execute a deed conveying* the land, but excepting from the conveyance the timber and mineral rights, which were not included in the assessment pursuant to the authority of which the land was sold for taxes.

At § 379' of the chapter on Taxation, 26 R. C. L., page 421, it is said: “When there has been a sale for nonpayment of taxes carried out in accordance with law, and all the conditions have been complied with so as to entitle the purchaser to a deed of the premises, the power of the collector to execute and deliver a valid deed is not exhausted by the execution and delivery of an invalid one, and, if the deed first delivered is defective and invalid, the collector may execute and deliver a substitute deed, which, if drawn up in accordance with the statutory requirements, will be as effective to pass the title as if the prior invalid deed had never been delivered. The length of time that has elapsed since the first deed was issued does not affect the right to issue a second one. The collector may make a valid substitute deed even after his term of office has expired, or his successor in office may make it.”

. The decree of the court below is therefore affirmed, and the heirs or assigns of the tax purchaser may yet apply to the clerk of the county court of Union County for a deed conforming to the directions and requirements of the statutes, but excepting the mineral and timber rights.


author: Humphreys, J.

text:
    Hampton v. Dodd.
    Opinion delivered October 5, 1931.

      W. M. Thompson, for appellants.

      MoCaleb & McCaleb, for appellees.
   Humphreys, J.

Appellant brought ejectment in the circuit court of Independence County against appellees to recover lots 1 and 2, block 61, in the School Addition to the city of Batesville, Arkansas, in which he relied upon a tax title purchased from the State as a basis of the action. It was alleged in the complaint that the lots were forfeited and purchased by the State for the nonpayment of the taxes of 1926, and that appellant bought them from the State in March, 1930; that appellees were in possession of the lots and refused to vacate same after notice and demand to do so. These allegations were followed by a prayer for possession and rents.

Appellees answered, attacking the validity of appellant’s tax title upon the following grounds:

First, because the tax collector did not file with the clerk of the county court by the second Monday in May the list of delinquent taxes required by § 10,082 of Crawford & Moses’ Digest.

Second, because the clerk of the county court did not, prior to the thirteenth day of June, 1927, make any record of certification of the publication of the advertisement of said sale, required by ■§ 10,084 of Crawford & Moses’ Digest.

The cause was submitted to the court sitting as a jury upon the pleadings and testimony introduced by the parties from which it was found that appellant’s tax title was void for the reasons set out in appellee’s answer and upon which finding appellant’s complaint was dismissed, from which is this appeal.

It must be presumed on appeal that the finding and judgment were correct unless some error appears on the face of the record as the testimony adduced on the trial has not been brought into the record by a bill of exceptions.

It is argued by appellant that the officers were excused from complying with §§ 10,082 and 10,084 of Crawford & Moses’ Digest because on the 8th day of April, Í927, the Governor of the State of Arkansas issued and filed in the office of the Secretary of State a proclamation extending the day for the payment of taxes until the second Monday in June, 1927. Such proclamation postponed the date of payment and relieved the property owners from penalties for failure to pay same, but did not suspend the mandatory duties imposed upon the officers by said sections preliminary and prerequisite to selling the lands for nonpayment of taxes.

It is also argued by appellant that the decisions of this court construing said sections to be mandatory were rendered prior to the passage of act 129, p. 693 and act 296, p. 1235 of the Acts of the General Assembly of 1929. Neither of the acts referred to undertook to amend or repeal §§ 10,082 or 10,084 of Crawford & Moses’ Digest.

No error appearing, the judgment is affirmed.


text:
    Thomas v. Sewell.
    Opinion delivered October 5, 1931.

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

      .Will Steel and James D. Head, for appellee.
   Humphreys, J.

This is an appeal from a decree .of the chancery court of Miller County dismissing the complaint of appellant, a taxpayer of said, county, for an injunction to restrain appellees from issuing and selling bonds in the sum of $150,000, bearing interest and maturing serially on October first of each year from. 1931 to 1951, to construct a new county jail, said bonds to be-paid by special levy of one and two-tenths mills per annum during said period on each dollar of all taxable property in said county according to the assessed value thereof, the estimated amount to liquidate the bonds being a total of $237,200.

The authority- to issue and sell the bonds was attacked on several grpunds, one. of :which was that the order of the county-.court, signed on October 3, 1930, approving the plans-and specifications for the proposed new cpunty jail and ordering and directing the question of the construction of same to be submitted to the qualir. fied voter's at the general election of November 4, 1930,. was not entered on the judgment record of the county-court prior to said election. This ground of the attack was based upon the language of § 3 of Amendment No. 17 to the Constitution of the .State, providing that court houses and jails may be constructed in counties when-a majority of the electors voting on the question so authorize, which is as follows:

“Section 3. Any and all such plans, specifications and estimates may, when considered, be rejected by the county court and new ones or alterations of the original ones ordered to be made, and when such preliminary set of such plans and specifications and estimates is filed and shall meet the approval of the county court, an order approving the same shall be entered of record, and the court shall order and direct the question of the construction of such building or extensions to be submitted to the qualified electors of such county at the next general election held thereafter; provided, however, that if no general election for county and State officers will, under the law, be held within one year of the making of said order, then the county court may by order entered of record call a special election * * *. ”

The facts responsive to this ground of attack are undisputed. On October third, the county judge signed a precedent for an order approving' the plans, specifications and estimated costs for a new jail which had been prepared and filed by the architects, made notation thereof on its docket and directed the clerk to enter the order on the judgment record. The precedent for the order had been prepared in triplicate, and one copy was certified by the clerk and handed by the judge to the election commissioners of the county. The clerk left a blank space on the .judgment record properly numbered for entry of the order, and left the precedent for same in the book at the proper page to be entered later. It was lost out of the book, and was not entered on the record until February, 1931, and was entered then by mmc pro tunc order of the county court. This was about three months after the election at which the question was presented and approved by a majority vote of the electors.

A majority of the court, in which the writer and Mr. Justice McHaney do not concur, are of opinion that the provision in the amendment to the Constitution requiring the approving order of the plans, specifications, and estimated cost of the county jail to be entered of record is a mandatory prerequisite to the construction thereof. It is their opinion that the only purpose for the requirement was to provide authentic information for the voters concerning the kind, character and cost of the jail to be erected, in order that they might intelligently cast their vote in favor of or against the construction thereof. This being the purpose, it follows that the requirement is mandatory and not merely directory, else the voter could derive no benefit whatever from it. The failure to enter the order on the record a reasonable time before the election was a jurisdictional defect which avoided the authority conferred at the election to construct a new jail and to issue and sell bonds to pay for the construction thereof by special levy. The building thereof is inhibited by the rule of construction announced and applied in the cases of Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344; McAdams v. Henley, 169 Ark. 97, 273 S. W. 355; Venable v. Plummerville, 130 Ark. 477, 198 S. W. 106; and Morris v. Levy Lbr. Co., 103 Ark. 579, 148 S. W. 252.

Oin account of the error indicated, the decree is reversed and the cause- is remanded with directions to the chancery court to enjoin appellees from taking any steps toward the construction of a new county jail.


author: Kirby, J.,

text:
    Ætna Life Insurance Company v. Heiden.
    Opinion delivered October 5, 1931.

      Frcmenthal, Sherrill S Johnson, for appellant.

      Donham <& Fulk, for appellee.
   Kirby, J.,

(after stating the facts). The policy was issued and delivered. The premium was not paid, although twice demanded, but the parties swore to a different understanding about whether it was delivered on the condition that it was to cover the operation of a toboggan slide in the swimming pool. Finally appellant notified insured that it refused to cover this risk, the agent again demanding payment of the premium, and negotiations were begun with another agency for a policy that would cover the risks as desired by appellee. The evidence is in conflict as to what the agreement on this point and the surrender of the policy was; appellee claiming that, upon being informed that no other agency would probably issue a policy to cover the risk of a toboggan slide alone, agreed to procure another policy immediately covering all the risks and to surrender appellant’s policy when this was done. Negotiations were begun with other agencies, and before any policy was issued, this policy having been demanded after insured’s negotiations with other agents and their agreement to issue such policy as desired, was surrendered to appellant company on the morning of August 1, by appellee’s wife; not for cancellation, she said, but to prevent her having to make a trip to town upon receipt of the other policy.

Appellant claimed the policy was canceled on the morning of the day of the accident in the evening and denied any liability under the terms of its policy therefor.

The evidence is in conflict, and a careful examination discloses it is sufficient to support the jury’s verdict against appellant on the question of liability. „

The court is of opinion, however, that, under the terms of the policy, conceding it to have been in force in accordance with the jury’s finding, the lower court erred in refusing to allow the admission of the testimony as to the reasonableness of the fees paid for the defense of the suit and also in instructing the jury that, if they found for appellee, their verdict would be for the amount paid by him to the two firms of attorneys, $1,500 each, less the $100 premium due upon the policy. Appellant company was only bound under the terms of the policy for the defense of the suits, and, having denied any liability and refused to defend them, appellee could only recover reasonable attorney’s fees for making the defense against the claims for damages that appellant had denied liability on, and refused to defend against.

Our statute provides for recovery of reasonable attorney’s fee for the prosecution and collection of the claims under certain kinds of policies of insurance, and in its construction this court has held that it contemplates the employment of only one competent attorney; and that the reasonableness of the fee for the service performed can be shown by testimony of the opinions of experienced attorneys, qualified to make such statements, and the court’s knowledge of such matters may be exercised to some extent in determining the value of such service — the company being required to pay only a reasonable fee for the service and not a speculative or contingent one. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720; Indiana Lumbermen’s Mutual Ins. Co. v. Meyers Stave Mfg. Co., 158 Ark. 199, 250 S. W. 18; Maryland Casualty Co. v. Maloney, 119 Ark. 442, 178 S. W. 387 L. R. A. 1916 A 519; Lilly v. Robinson Mercantile Co., 106 Ark. 571, 153 S. W. 820; Valley Oil Co. v. Ready, 131 Ark. 531, 199 S. W. 915; Shackleford v. Arkansas Baptist College, 181 Ark. 363, 26 S. W. (2d) 124; Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446, 220 S. W. 807.

• The general rule is stated in 36 C. J. 1113, under the title “Liability Insurance” as follows: “Where the insurer does not exercise its right or fulfill its duty to conduct the defexxse of the action by the injured person against ixisured, * * * insured should use reasonable care and diligence in conducting the defense, although the policy provides that he must not interfere with the litigatioxi. In such case assured is under a duty to conduct the defexxse in such a maxxner as to make the loss as small as he reasonably can; axxd insurer has no right to control the defense as coxxducted by insured, and is not entitled to further notice of the proceedings.”

In Shackleford v. Ark. Baptist College, supra, the court said: “The general rule is stated in 2 R. C. L., p. 1048, as follows: ‘In the absence of an express coxitract of employmexxt between axx attorxxey and his cliexxt fixing the amouxxt of the attorney’s compensatioxx, it is generally held that the attorxxey is entitled to what his services are reasonably worth, or what has usually beexx paid to others for similar services’.”

No showixxg was attempted to be made by appellee of the reasoxx of or the xxecessity for the employmexxt of two' attorneys or firms of attorneys ixx this case and the. páymexxt of a fee to each of them of $1,500. The allowance of such axx amouxxt for a fee or rather for compensation to two attorneys ixxstead of one, xxo necessity being showix for the employmexxt of two, was unwarranted and clearly excessive, axxd the court erred in the failure to allow the introduction of the testimoxxy of experienced attorneys that $500 would have been a reasonable fee for the defexxse of the suit; axxd also ixx taking* the question of the reasonableness of the amount paid for such attorneys ’ fees from the jury by its instruction tellixxg the jury to fixxd, if they found appellee exxtitled to recover, for him ixx the amount of the fees paid to both attorneys, $3,000, less the $100 uxxpaid premium due upon the policy.'

Appellant cannot complain of the failure to introduce in testimony the policy sued on as the basis for the action, since it was alleged to be in its possession, and appellee’s complaint requested that it be produced by said company. If the terms o'f the policy sued on were not correctly shown by the testimony, the appellant could have produced the policy, it being in its possession, and doubtless would have done so had it thought its production would be to its interest and its terms more favorable to its contention in the trial. It certainly cannot complain of its non-production, having it in its possession and refusing to produce it upon the request of appellee.

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.


author: Mehaeey, J.

text:
    Kollar v. Noble.
    Opinion delivered October 5, 1931.

      M. F. Elms and W. A. Leach, for appellant.

      Ingram S Moher, for appellee.
   Mehaeey, J.

Anton Rollar, a resident of Christian County, Illinois, was the owner of a rice farm consisting of 490 acres in Arkansas County, Arkansas, and, in order to enable him to make and harvest the crop for 1924, he borrowed from the First National Bank of’ Stuttgart, Arkansas, $1,824.54 and gave his note therefor.

Anton Kollar died at his home in Illinois on the 18th day of February, 1924, and left surviving him Anna Kollar, his widow.

The will of Anton Kollar was filed in the County Court of Christian County, Illinois, and letters testamentary issued to John Gillespie, February 27, 1924.

The appellant filed with the county court of Christian County, Illinois, her deed of renunciation of the will of Anton Kollar. When Kollar died, he owed the First National Bank of Stuttgart, Arkansas, a balance on the note above referred to. The First National Bank was the only Arkansas creditor.

E. H. Noble was appointed by the probate court of Arkansas County as ancillary administrator and filed a bond which was signed by E. C. Benton as surety. Noble took charge of the Arkansas lands belonging to the estate of Kollar and received the rents therefrom. The bank’s claim was allowed and paid. The following is the settlement filed by the ancillary administrator:

RECEIPTS
Rents collected .................................................................................... $3,235.88
DISBURSEMENTS
Paid premium on policy............................................................ $44.61
Attorney’s fee allowed by court.................................... 150.00
Administrator’s fee....................................................................... 211.75
Court costs................................................................................................ 4.85
Paid claim of First National Bank.......................... 2,770.59
3,181.80
Balance on hand ................................................................. 54.08

Appellant’s dower had never been assigned. The .following is a copy of the will of Anton Kollar:

“I, Anton Kollar, of Pana in the County of Christian, and State of Illinois being of sound mind and memory, and considering the uncertainty of this frail and transitory life, ordain, publish, and declare this to be my last will and testament.
“First: I order and direct that my executor hereinafter named, pay all my just debts and funeral expenses as soon after my decease as conveniently may be.
“Second: After the payment of such expenses and debts, I direct my executor hereinafter named to sell at private or public sale all my real estate and personal property not hereinafter disposed - of to the best advantage possible within five years from this date and from the proceeds thereof pay all my just debts which are not paid at the time and then my wife the sum of fourteen thousand dollars which I owe her. The balance of the proceeds to be divided as follows: one thousand dollars to Rose Berniker of Springfield, Illinois. The balance of proceeds to be divided into three parts, one part to my wife, one part to my son, and one part to my daughter. Until said real estate and personal properties disposed of by my executor as above set forth, I empower him with authority to manage said property, to collect rents and to repair and keep property up, and when sold I authorize him to make deeds of conveyance for the real estate and bill of sale for any personal property in case I have now or do in the future deed any property to my said wife, the fair cash value of said property is to be deducted from the sum of $14,000 above mentioned as owing her. The son named above is Dr. John A. Kollar of Chicago, and the daughter is Mrs. Emma Laino, (nee Emma Kollar) of Springfield, Illinois. All household goods I hereby give to my wife for her own use forever.
“Lastly, I make, constitute and appoint John Gillespie to be executor of this my last will and testament, hereby revoking all former wills by me made. In witness whereof, I have hereunto subscribed my name and affixed my seal, the 11th day of February of the year of our Lord one thousand and nine hundred and twenty-four.
“Anton Kollar (Seal)
“This indenture was on the day of the date thereof, signed, published and declared by said testator, Anton Kollar, to be his last will and testament, in the presence of us, who at his request have subscribed our names thereto as witnesses, in his presence and in the presence of each other.
“Ernest L. White,
“John P. Moroney,
“Adolph Fillipitch.”.

The appellant filed her complaint in the circuit court of Arkansas County, describing the lands owned by said Anton Kollar in his lifetime, and alleging the amount collected as rents from said lands and the payment to the bank, and prayed judgment against the administrator and his surety and the First National Bank of Stuttgart, Arkansas, in the sum of $1,628.62 with interest, as her dower in said property.

The case was tried before the, circuit judge, sitting as a jury, and the court found for the defendants and dismissed her complaint. The case is here on appeal.

We deem it unnecessary to set out the evidence because there is practically no dispute about the facts. We do not deem it necessary to set out the plaintiff’s request for finding of fact. Plaintiff’s request for declarations of law are as follows:

“No. 1. Refused by the court.
“The provisions in the will of Anton Kollar, deceased, for his widow Anna Kollar, are a gift of personal property and not real estate.
“No. 2. Refused by the court.
‘ ‘ The provisions in said will made by the said Anton Kollar for his widow, Anna Kollar, are not in lieu of dower, but in addition thereto.
“No. 3. Refused by the court.
“The provisions of said will, being a gift of personal property, are not in lieu of dower, and the said Anna Kollar was not required, under the law, to file, a renunciation in Arkansas on the provisions of the will.
“No. 4. Refused by the court.
“The renunciation filed by the said Anna Kollar in the county court of Christian County, Illinois, was a renunciation of the provisions of said will in full compliance with the laws of Illinois in such cases made and provided. . • ' ' ”
“No. 5. Refused by the court.
“The plaintiff, Anna Kollar, is entitled to one third of all the rents that come off the lands in Arkansas County, Arkansas, free and clear of all expenses of administration, that came into the hands of E. H. Noble as ancillary administrator of the estate of Anton Kollar and'tfie said E. H. Noble and his bondsman, E. C. Benton, are liable to the said plaintiff for the one third of the rents received by such ancillary administrator.”

The court gave all the requests for'findings of fact except one, and that one is as follows: “The said'Anton Kollar left him' surviving no child or children nor descendants of any'child or children.” The court refused to make this finding of fact.

It is conceded under the will there was no real' estate devised, but that the property devised was personal property. It therefore becomes unnecessary to discuss or refer to the many authorities to which attention is called in appellant’s brief.

■ Section 3538 of Crawford & Moses ’ Digest is as follows: “If any husband shall devise and bequeath to his wife any portion of his real estate of which he died seized, it shall be deemed and taken in lieu of dower out of the estate of such deceased husband, unless- such testator shall, in his will, declare otherwise.”

• But, since the property devised was personal property and. not real estate, this section had no application, and is not important except it might be considered in connection with § 3526 for the purpose of properly construing the latter section. This section -reads as follows: “If land be devised to a woman, or- a pecuniary or other provision be made for her by will in lien of her dower, she shall make her election whether she will take the land so devised or the provision so made, or whether she will be endowed of the lands of her husband.”

It is contended by the appellees that the will made a pecuniary provision for the appellant in lieu of dower, and that it was therefore necessary for her to file a deed of renunciation in Arkansas County. If the provisions in the will for the wife were in lieu of dower, she would have no right to dower in the property in Arkansas, and the case should be affirmed.

If the provisions made for the wife were not in lieu of dower, then she was entitled to dower in the Arkansas property, and she would not be required to file any renunciation of the will.

Many authorities are cited and discussed by learned counsel on both sides, but we deem it unnecessary to review them here, the only question being whether the provisions in the will are in lieu of dower.

This court recently said: ‘ ‘ Under the common law the testator will not be presumed to have intended a devise in his will to be a substitute for dower, unless the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat the will. In other words, at common law it is held that where the testator’s intention was not apparent in the will, the devise would be presumed to be in addition to dower.” Gathright v. Gathright, 175 Ark. 1130, 1 S. W. (2d) 809.

Again the court said in the same case: “The will under consideration bequeaths personal property and also contains a devise of real estate. It has been held under the statutes like that just referred to above that a legacy of personal property will not put the widow to her election as in the case of a devise of real estate unless expressly made in lieu of dower. ’ ’ The court cites Booth v. Stebbins, 47 Miss. 161; Pemberton v. Pemberton, 29 Mo. 408, and cases cited in note to 22 A. L. R. 50.

We do not think the claim of dower is inconsistent with the will, or repngnant to its provisions, so as to defeat or disturb the will. Since we hold that the claim of dower is not inconsistent with the will nor repugnant to its provisions, it becomes unnecessary to discuss or review the authorities cited on the question of election.

The declarations of law requested by the appellant should have been given.

It is next contended by the appellees that appellant’s action was barred. We do not agree with this contention. The rents were collected by the ancillary administrator from February 1 to June 7, 1929, and the action was therefore not barred.

The court erred in refusing to make the declarations of law requested by appellant.

The judgment of the circuit court is therefore reversed, and the cause remanded for a new trial.

McHaney, J., dissents.


text:
    Goynes v. State.
    Opinion delivered October 5, 1931.

      Atldns S Stewart, for appellant.

      Hal L. Norwood, Attorney General, and Bat Mehaffy, Assistant, for appellee.
   Mehaeey, J.

The appellant was indicted for murder in the first degree and was convicted of manslaughter, and his punishment fixed at five years in the penitentiary.

It was alleged that he shot and killed one Jesse Campbell. The only assignments of error are as follows : (1) The prejudicial testimony of witness Homer Burke. (2) The error in admitting over appellant’s objection the purported dying! declaration of the deceased, Jesse Campbell.

It would serve no useful purpose to set out the testimony, as there is no contention that the evidence is not sufficient to support the verdict..

The testimony of Homer Burke which the appellant claims was erroneously admitted is as follows: “So he told us, says, ‘Now I want you to lock Yernie Goynes up; he told me he was going home and get his gun and come back and kill me’.”

Appellant contends that, the above testimony having been admitted over his objections, the error was not cured by the court- excluding this testimony and directing the jury that they could not consider it. Appellant admits that the general rule is that, when the court admits incompetent testimony, and afterwards excludes it from the consideration of the jury, this cures the error.

fl.: In the trial of a case in the circuit court, it sometimes happens that incompetent evidence is admitted, and when it appears to the court that any evidence admitted is incompetent, it is the duty of the court to exclude it from the consideration of the 'jury, and to instruct the jury not to consider it.- -

Trial courts must necessarily have large discretion in the .admission and rejection of evidence. Of course, this discretion must be exercised, carefully so as to result in no prejudice to the defendant. If, however, the court has admitted testimony that he .afterwards concludes is incompetent, certainly he should not be required to continue in this error; but it is his duty to correct the error. The trial judge can only do this in the manner done in the instant case, or, at the request of the.defendant, the case might be withdrawn from the jury and tried before’ another jury.

The Texas court said: “We,think the true rule on this subject to be: If the testimony is not of a very material character, it may be withdrawn by the court, and the error thus cured; but if,-on the contrary, the evidence is of a material character, and was calculated to influence or affect the jury, the withdrawal of the same from their consideration would not heal the vice of its admission.-’ Barth v. State, 39 Tex. Cv. R. 381, 46 S. W. 228, 73 A. S. R. 935.

The evidence' objected to in this case is the testimony of Burke, to whom Campbell went after the first difficulty and made the statement testified to by Burke. This same statement was in Campbell’s dying declaration which was introduced in evidence, and no objection was made to the dying declaration of Campbell- on this ground. Moreover, the appellant himself, when the evidence was introduced over his objection, asked the court to exclude it. ... . ...

The dying declaration having already been.introduced, containing the same evidence given by Burke, and no objection having been made to its introduction on this- ground, the evidence of- Burke was cumulative.

.“The admission of objectionable evidence is not cause for reversal where-the same .or. substantially the same evidence has been previously received without or over objection, and it does not appear that the evidence, when admitted the second time, exerts more influence than when admitted the first time, or that other prejudice has resulted.” 38 Cyc. 1418.

“The general rule is that, if evidence erroneously admitted during the progress of a trial is distinctly withdrawn by the court, the error is cured, except in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remains despite its exclusion and influences their verdict.” 38 Cyc. 1440.

“The general rule is that if inadmissible evidence has been received during the trial, the error of the admission is cured by its subsequent withdrawal before the trial closes,” and by an instruction to the jury to disregard it.” 38 Cyc. 1441.

Appellant objects to only a portion of the answer of the witness. The question was: “Well, what was his condition?” The witness answered: “Well, he had a few scratched places on his face and his left eye was blue.”

The witness then volunteered the statement to which appellant now objects. The question was proper and was not objected to. That portion of the answer above quoted was competent. The appellant did not point out that portion of witness’ statement to which he now objects, but after the witness had answered he stated:

“Now, we object to that, your Honor.”

It was his duty to point out the part of the answer of the witness to which objection was. made. No one could have anticipated that the witness would volunteer the statement which is now objected to, and there was nothing the court could do to correct it except withdraw it from the consideration of the jury as he did. If the court could not do this, then any witness might cause a mistrial by making a statement that no one expected him to make, that the court could not have anticipated he would make, in answer to a proper question.

The court not only directed the jury not to consider this evidence, but they evidently did not consider it. Appellant was not found guilty of murder, but of manslaughter.

It is next contended by the appellant that the court erred in admitting the dying declaration of the deceased Jesse Campbell. The only objection made to the dying declaration as evidence, however, is that there was no competent testimony introduced on the part of the State to show that the deceased was mentally competent to make a statement. There is no evidence in the record tending to show that he was unconscious, but the doctor did not know whether he was competent or not, but stated that he was suffering. He also said that he answered the questions, told them how it happened, and made a clear statement of it.

It is the province of the court to determine whether a dying declaration was made under circumstances that, it would justify the court in admitting it, and the weight to be given to the statement is to be determined by the jury. Sanderlin v. State, 176 Ark. 217, 2 S. W. (2d) 11; Adcock v. State, 179 Ark. 1055, 20 S. W. (2d) 120.

It was not the duty of the State to show that the deceased was rational, but the evidence in this case does not tend to show that he was not rational, and whether the deceased was of sound mind when he made the statement was a question of the credibility rather than the admissibility of the declaration. 30 C. J. 278; Underhill on Criminal Evidence 231; Mathis v. State, 15 Ala. App. 245, 73 So, 122.

The admissibility of the declaration was for the court, and it was properly submitted to the jury. It was the province of the jury to determine its weight and the credibility of the witness.

The judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Detroit Fire & Marine Insurance Company v. Helms.
    Opinion delivered October 5, 1931.

      Horace Chamberlin, for appellant.

      B. B. Terry, fur appellee.
   McHaney, J.

Appellant brought this action in the chancery court to cancel a policy of fire insurance issued by it to appellee, Scull, which had a standard mortgage clause attached making the loss, if any, payable to ap’pellee, Commonwealth Building & Loan Association, hereinafter called the association, as its interest might appear, after the property covered by said policy had been destroyed by fire and liability, if any, had accrued. The facts, briefly stated, are as follows: The property is located in El Dorado and was left to Mrs. Helms by her husband. It was mortgaged to a bank in El Dorado by her and insured in appellant with mortgage clause attached. This mortgage was foreclosed, the bank acquiring the property, and the insurance was transferred to it. Mrs. Helms desired to repurchase the property from the bank, which it was willing to sell for its debt, and sought to borrow the money from the Association for this purpose, but it was decided by all parties that she had better not apply for the loan on account of her financial irresponsibility. The Arkansas Finance Company, a corporation of El Dorado, of which Major O. L. Bodenhamer was chairman of the board, was the agent of the Association and also of appellant, and represented all parties to this lawsuit. It was decided that the son of Mrs. Helms apply for a loan of $1,750 to the Association, which he did on August 5, 1929, representing himself to be the owner, intending that the bank should convey to him and he, in turn, execute the mortgage if the loan was granted. This loan was refused by the Association because of an unsatisfied judgment against him. Thereafter, appellee Scull,- a responsible business man of El Dorado made application to the Association for a loan, the application being similar to that of Mr. Helms, which was granted September 6, 1929. The bank conveyed to Mrs. Helms, who conveyed to Scull, and he executed the mortgage to the Association, and the deal was closed on September 10, by paying the proceeds of the loan to the bank and all deeds of conveyance being delivered and recorded. Thereupon the Arkansas Finance Company issued the policy in question to Scull with mortgage clause attached to the Association. Scull, Mrs. Helms and her son, thereafter, on the same day, entered into a written agreement that, if the Helms would pay all expenses incident to the transfers and all installments to the Association, iScull would convey the property to Mrs. Helms or her son as she should direct. This agreement, together with other papers, were left with the Arkansas Finance Company, some of whose officers were cognizant of all the foregoing facts. The September installment to the Association was deducted from the loan. When the October installment became due, default was made, and the Association demanded payment of Scull, who, in turn, demanded same from Mrs. Helms and her son. Not being made, Scull executed a deed to the property back to Mrs. Scull, caused it to be placed of record and delivered it to Arkansas Finance Company, assuming, no doubt, by so doing, he would relieve himself of the embarrassment. On November 13, 1929, the property was totally destroyed by fire, which was reported to appellant, and it, after investigation, decided that fraud had been practiced upon it, that Scull had no title at the time of the fire, that Mrs. Helms had no ■ contract relation with it, and that its policy should be canceled. It thereafter instituted this action for that purpose.

The chancery court took jurisdiction, no question thereto being raised, canceled the policy as to Scull and Mrs. Helms, but rendered judgment against appellant in favor of the Association for the amount of its loan on the property destroyed by fire, with interest, thereby refusing to cancel as to the .Association. The court, however refused to give the Association'judgment for a large sum paid by it for street taxes after the fire and for penalty and attorney’s fees sought to be recovered by it- on cross-complaint, so we have here an appeal and a cross-appeal. Neither Mrs. Helms nor Scull claim any interest in the policy and neither have appealed. The situation as to them is, that Scull had a policy but no property, and Mrs. Helms had property but no policy at the time of the fire.

Appellant insists that the policy is void by reason of the facts heretofore stated; that Scull’s ownership was not sole and unconditional in violation of such a clause in the policy, as shown by the agreement between Scull and Mrs. Helms; that these facts were known to Arkansas Finance Company, and that the Association was affected with knowledge thereof through its said agent. If the knowledge of the Arkansas Finance Company must he imputed to the association, the same rule must apply to appellant for the same agent represented both. So appellant had knowledge of the condition of said title through its agent, and with said knowledge issued and delivered the policy in question, and it is difficult to perceive how it can now be heard to say it has been defrauded, overreached or misled, for its agent knew all the facts. But we think the facts do not justify or sustain the charge of fraud. What Major Bodenhamer and his company did, in an effort to assist Mrs. Helms in regaining possession with the hope of acquiring title to her property, taken under foreclosure by the bank, as shown by the preponderance of the evidence, was. done in good faith, with no purpose to injure or defraud any one. The property was good security for the loan, and the association makes no complaint. The amount of the policy was for a less sum than it had formerly been in the bank’s favor. The record fee simple title was in Scull when the policy was issued, even though he had agreed to reconvey to Mrs. Helms under certain conditions. But, at the time of the fire, Scull had no interest in the property, and Mrs. Helms had no interest in the insurance. The court so held and canceled the policy as to them. But the court correctly held that the association could recover to the extent of its mortgage, as it is well settled that a mortgagee, under a standard mortgage clause, is not affected by the acts or omissions of the insured that would avoid the policy as to him. Natl. Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. (2d) 786.

With reference to the cross-appeal, the record reflects that Mrs. Helms had owned the property covered by the $3,000 policy in controversy and also an adjoining place on which she lived, all of which passed to the bank under foreclosure, and finally to Scull who executed two separate mortgages thereon to the association for $1,750 and $2,750, respectively, the proceeds of which went to pay the bank. It is contended by the association that under a clause in the former mortgage providing that it should stand as security for any other indebtedness due it by the mortgagor, it should have been permitted to recover the full amount of $3,000 and apply the excess over the $1,750 mortgage on the $2,750 mortgage. Further that it had paid subsequent to the fire $551 improvement taxes on all the property and incurred other expenses which it ought, to recover under the policy, as well as penalty and attorney’s fees. The chancery court properly denied .these claims. As to the taxes all rights accrued when the loss occurred, and, even though secured by the mortgage, they were not so secured until paid by the association which was after the .loss. The “other indebtedness” clause does not give the association the right claimed. Under the mortgage clause appellant promised to pay it, in case of loss, as its interest may appear. This means as its interest may appear under the mortgage in question and not under another or wholly different mortgage on different property. The “other indebtedness’’ referred to some other indebtedness arising subsequent to the date of the mortgage and -not indebtedness secured by mortgage on other property under another contract. See Walker v. Whitmore, 165 Ark. 276, 262 S. W. 678; Berger v. Fuller, 180 Ark. 372, 21 S. W. (2d) 419.

Not, having recovered nor being entitled to recover the amount sued for on the cross-complaint, the association is not entitled to recover the statutory penalty and attorney’s fee.

Affirmed both on appeal and cross-appeal.