text:
    Collins v. McClendon.
    Opinion delivered April 30, 1928.

      Sam M. Levine, for appellant.

      E. W. Brockman, for appellee.
   Smith, J.

TJnder the authority of Wood v. Miller, 154 Ark. 318, 242 S. W. 573, appellee brought this suit to oust 'appellant from the office of mayor of the town of Gould, in Lincoln County. According to the returns of the election officers, appellant received 34 votes and appellee 32 for that office. It was alleged that certain illegal votes had been cast for appellant, and that certain legal votes, which would have been cast for appellee, were excluded by the officers of the election, but, as it also appeared that appellant was, at the time of the election, the duly qualified and acting member of the House of Representatives from Lincoln County, the court did not consider and determine whether illegal votes had been cast or legal votes had been excluded. The court found the fact to be that knowledge on the part of the electors of the town that appellant was a member of the Legislature was general, and, upon this finding, the court declared the law to be that “the votes cast for the ineligible candidate are thrown away, not to be counted at all, and leaves the man who received the next highest number of votes as the elected candidate to the office,” and upon this declaration of law appellee was declared to have been elected, although he received a less number of votes than his opponent.

There is very respectable authority to support the declaration of law made by the court below. Indeed, it is asserted by counsel for appellee that the weight of authority accords with the view announced by the court. We have not felt called upon, however, to determine that question, as this court has committed itself to a different rule.

In the case of Swepston v. Barton, 39 Ark. 549, it was contended that ¡Barton was elected sheriff, although Swepston had received the larger number of votes for that office, for the reason that Swepston was ineligible to hold the office of sheriff, in that he had defaulted in the settlement of his accounts in another office. After stating the English rule to be that, if the disqualification of a candidate is notorious, votes cast for him will be deemed to have been purposely thrown away, and the candidate having the next highest number of votes will be elected, the court proceeded to say that, by the weight of authority, the American rule was to the contrary, and that, when a vote for an ineligible candidate is not declared void by statute, the votes he receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must 'be considered as having failed. It was there said:

“The real issue in this cause was, which candidate received a majority of the legal votes cast? If Barton did not obtain such a majority, but his competitor was ineligible, it by no means follows that he, as the next in the poll, should receive the office. ‘The votes are not less legal votes because given to a person in whose behalf they cannot be counted.’ Saunders v. Haynes, 13 Cal. 145. If Swepston was a defaulter, the Governor, if that fact had been properly brought to his notice, might have lawfully refused to sign, his commission. (Haylor v. Governor, 1 Ark. 21). And he may still be ousted upon quo warrmio, for ineligibility relates to the capacity of holding, as well as being elected to an office (Carson v. McPhetridge, 15 Ind. 327). But it is not a matter which is involved in the present contest, for, if true, it does not show Barton’s election. ’ ’

While appellant was ineligible, under § 10, article 5, of the Constitution, as construed in the case of Wood v. Miller, supra, to be elected mayor, we have no statute which, declares the vote for an ineligible candidate to be void, and, this being true, a majority or a plurality of votes cast for an ineligible candidate operates to prevent the opposing candidate from being chosen, in which event the election must be considered as having failed.

The court in the case of Swepston v. Barton, supra, quoted with approval the conclusion of the Supreme Court of California in the case there cited. The reason for that conclusion, as stated in the opinion, was as follows :

“An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in Whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and-more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject.”

We attempt no review of the conflicting authorities on this question, as we think the case of Swepston v. Barton, supra, is conclusive of it in this State.

It follows therefore that the judgment of the court below must be reversed, and the cause remanded with directions to hear appellee’s contest on its merits for the purpose of determining whether appellee did, in fact, receive a majority of the legal votes.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Beichslich v. Beichslich.
    Opinion delivered April 30, 1928.

      Robert L. Rogers, for appellant.

      Carmichael & Hendricks, for appellee.
   Smith, J.

Flora Beichslich, in her own right and as next friend of her two infant children, brought a suit in the Pulaski Chancery Court in which she alleged that she was the widow of August Beichslich, who departed this life September 15, 1924, and was survived by the infant children in whose behalf she sued. For her cause of action she alleged that, about three and one-half years before instituting the suit, the defendant, Sophie Beich-slich, gave to her son, plaintiff’s husband, a ten-acre tract of land, and that, pursuant to this gift, the donee entered upon the land, caused it to be surveyed and to be laid off by plowing around it, and later built thereon a residence at his own cost of between $800 and $900. That, after the erection of the residence, her husband lived there with his family until his death. It was further alleged that, by inadvertence and oversight, no deed was ever made from the defendant, Sophie Beichslich, to her son August, but that he acquired title under the gift and his possession of the land thereunder, and owned the land at the time of his death, and that the children of her husband inherited the title thereto upon the death of their father, subject to her homestead and dower rights, and that the land was the homestead of her infant children. Judgment against the defendant was prayed, divesting the title out of defendant and vesting it in the plaintiffs.

An answer was filed, in which it was alleged that defendant gave her son August permission to erect a residence on the land, with the right to occupy it for his natural life, or so long as he wished. Defendant denied that she gave the fee title to her son, but alleged that she had given him a life estate, or the rigilt to occupy the land as long as he wished to do so.

The testimony is in irreconcilable conflict. The widow herself testified that defendant gave the land to her son, and that he and the witness built the residence with their own money, except some small loans made to the donee by his mother; that her husband expended between $400 and $500 of his own money in the erection of the residence, and that $110 of witness’ money was employed for the same purpose. Witness exhibited various receipted bills for material used in the- construction of the building, which her husband had paid, and carpenters and other laborers testified that they had done work on the building for which they had been paid by August Beichslich. The value of the building was about $800 or $900.

Defendant owned a small tract of land, consisting of 35% acres, through which a railroad ran, cutting off a portion of the land containing 5.61 acres from the remainder, and a plat of a survey, made April 13, 1922, was introduced, showing a survey of ten acres of the main body of the land, and it was on this ten acres that August Beichslich built his house. It was shown that the land was so plowed soon after the survey as to mark the boundaries thereof. A witness named Smith testified that he asked August Beichslich, after thé erection of the building was begun, if his mother had given bim a deed, and Beichslich answered, “No, not yet, but she will,” And a brother of the plaintiff gave testimony of similar purport. Objection was made to the admission of this testimony.

In the case of Waldroop v. Ruddell, 96 Ark. 171, 131 S. W. 670, it was said that, “while it has been held that declarations of a decedent going to show the character and extent of his possession are competent, declarations as to title are not competent, for the reason that they are self-serving declarations. Seawell v. Young, 77 Ark. 309, 91 S. W. 544; Jeffrey v. Jeffrey, 87 Ark. 496, 113 S. W. 27.” See also Parks v. Thomas, 138 Ark. 70, 210 S. W. 141, where a number of cases on the subject are cited; and Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338.

We are of the opinion therefore that the testimony of the witness Smith and that of plaintiff’s brother is without probative value in so far as it relates to the title which the decedent claimed, and there is no controversy about the character and extent of his possession, as he was in the exclusive possession of the ten acres in litigation. The question is, by what title did the deceased hold? And the self-serving declarations of the decéased occupant may not be proved to establish that fact.

Mrs. Cochran, a sister of the plaintiff, testified that defendant told witness that she had given her son the ten acres, and was going to make him a deed to that land.

The testimony on behalf of defendant was to the effect that she was a widow, sixty-six years old, and that she was dependent on her thirty-five-acre farm for her living, and that she had three other children besides her son August. That August was a bootlegger; but his widow testified that he had not made any money out of that business, but that he made money raising and selling hogs. Defendant desired her son to live near her, and, as an inducement, offered to give him the ten acres for his life, or so long as he wished to live there, and offered also to assist him in building a house thereon. Prior to this gift August Beichslich had lived on the five-acre portion of the tract, in a building to which all the witnesses referred as a“ shack. ’ ’ August Beichslich bought one of the buildings at Camp Pike, for which he paid $100, and dismantled it, and the material from that building went into the construction of the residence. Most of the other money used in the building was furnished by defendant, who was shown to have had in bank at all times a deposit exceeding the cost of the building-, and, in addition, she had $390 in a bag at her home, which had belonged to her husband. Defendant testified that she gave her son the money to pay the bills for labor and materials; that at times she gave him money and at other times she gave him checks. She did not produce the checks, as she testified that they were lost or destroyed. Defendant also testified that she never gave or promised to give her son anything- more than a life estate in the land.

Defendant was corroborated by the testimony of her sons, A. H. and Ernest Beichslich, her son-in-law, Raymond Wright, and her daughter, Mrs. Wright, and her daughter-in-law, Mrs. A. EL Beichslich. The testimony of these witnesses is to the effect that the defendant, Mrs. Sophie Beichslich, had given to her son August only a life estate in the ten acres, and it was so understood by -all the members of the family. These witnesses also testified that the erection of the building progressed intermittently, and that, when August had spent the money given him by his mother, the work would be discontinued until she gave him more.

A Mrs. Larch, a neighbor, appears to be one of the few disinterested witnesses in the case whose testimony is material. She testified that she asked August, after one of the periods of suspension of the work, why he did not finish his house, and August answered that he had nothing to finish it with. Witness said to him, “You know your mamma will let you have the money to finish the house,” and August answered that he knew she would, but he had been to her for money so often that he was ashamed to ask for any more.

At the time of August Beichslich’s death, in September, 1924, he was residing in the residence on the ten-acre tract, and Ms wife continued to live there with her two children until February, 1925, when she left. She testified that she received a notice from defendant to vacate, and that she vacated the house in response to this notice, and brought this suit February 28, 1925. Defendant denied that she had given any such notice. A local attorney was called as a witness to explain the confusion about the notice, and he testified that he had been employed by a client, who he supposed to be the defendant, but had never seen before, to write the notice preparatory to bringing- suit to eject plaintiff. His client did not again report to him, and -no suit was brought. The attorney identified the plaintiff herself as the person who had employed him to prepare the letter which he addressed to plaintiff demanding the surrender of the land. Plaintiff denied that she had seen the attorney before the trial, but his identification of her as the person procuring him to write the letter was positive. This is a circumstance which cannot be ignored in testing the good faith and credibility of the witnesses. The date of this letter was February 26, 1925, and soon thereafter plaintiff vacated the property, and on March 7, 1925, she married her present husband.

The court below granted the relief prayed, but declared a lien in defendant’s favor for the amount of certain advances made by her to her son in the construction of the building.

The testimony, which we have carefully considered, leaves us in grave doubt whether defendant ever gave her son this land in fee, and we are therefore constrained to reverse the decree of the court below.

In the case of Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338, which was a controversy between a brother, who was in possession of a tract of land wMch he claimed had been given him by his mother, and his sister, who was the only other heir of their mother, it was said:

“The next question is whether Gr. A. C. Beattie acquired title by a parol gift from his mother. We have set out the substance of the testimony of respective parties on that issue, and it appears to be of about equal weight. Counsel for appellant say that, the testimony being of about equal weight, the defendants should prevail, as the burden of proof is on the plaintiff. But the burden of proof is not upon the plaintiff to show there was no gift to Gr. A- C. Beattie by his mother. This was an affirmative defense, and the burden of establishing it was upon the party who pleaded it, and this burden could not be discharged by a mere preponderance of the evidence. The existence of a parol gift of land is one of those things which cannot be established by a bare preponderance of the evidence. It is required that such a gift be established by evidence that is clear and satisfactory, and the evidence in this case does not meet that requirement. Meigs v. Morris, 63 Ark. 100, 37 S. W. 302; Young v. Crawford, 82 Ark. 33, 100 S. W. 87.”

What was there said is applicable here. The testimony does not measure up to the standard required in the case cited, and the decree of the court below will be reversed and remanded, with directions to dismiss the complaint. It is so ordered.


author: Humphreys, J.

text:
    Simms v. Rolfe.
    Opinion delivered April 30, 1928.

      C. W..Norton, for appellant.

      Marvin v. Norfleet, ifor appellee.
   Humphreys, J.

The sole question presented by this appeal is whether Susie Chew acquired title to all that part of the northeast quarter of section 8 lying west of the St. Francis River, in township 5 north of range 4 east, in the county of St. Francis, containing 40 acres, more or less, by quitclaim deed from S. H. Mann, for a consideration of $150, of date March 28, 1918, who had purchased same at a levee tax sale on December 5, 1914, for delinquent levee taxes. The forty-acre tract in question was owned by William Simms, the first husband of Susie Chew, when he died in the year 1901. She subsequently married a man by the name of Griggs, and they, with appellants herein, minor children of William Simms, deceased, were in possession of and cultivated said forty-acre tract when same was sold for delinquent levee taxes. The tract was assessed in the name of Lulu Griggs, the mother of appellants, and in the levee tax foreclosure as “W of R NE%, Sec. 8, Tp. 5 north, range 4 east. ’ ’ After the death of Griggs, the mother of appellants married Ben Chew, who joined her in a deed of trust to S. S. Hargraves, as trustee for Ralph Turley, doing business as Turley & Company, embracing this forty-acre tract and other lands and personal property, securing an indebtedness of $2,797.51, evidenced by five notes, which they owed Turley & Company. They defaulted in the payment of $2,223.61 of the indebtedness. The notes and deed of trust were assigned to E. A. Rolfe on the 3d day of September, 1926, and on the next day he and the trustee named in the deed of trust instituted this suit to foreclose said deed of trust in the chancery court of St. Francis County and subject the forty acres in question, along with the other property described in the mortgage, to the payment of the balance due upon said indebtedness. Some of the appellants were in possession of the forty-acre tract in question, so they were made parties to the foreclosure, on allegation that they were claiming some interest in the land. They interposed the defense that their mother, Susie Chew, acquired no title to the land under the delinquent levee sale, because same was assessed, forfeited and sold under an insufficient description, and because she was in possession thereof and cultivating same at the time of the forfeiture' and sale. The cause was submitted upon the pleadings and testimony, resulting in a decree upholding the validity of the sale for levee taxes, and a foreclosure and order of sale of the forty-acre tract in question, along with the other property described in the deed of trust, to satisfy the indebtedness.

We agree with appellants that the sale for levee taxes was void as against this forty-acre tract of land for the lack of a legal description, and that their mother did not acquire title thereto under' quitclaim deed from S. H. Mann, who had bought same at the void tax sale. The letter “R” or “r” is the proper abbreviation for range within the meaning of government surveys when used with reference thereto. When used otherwise in an attempted description of land, it means nothing. We so ruled in the case of Brinkley v. Halliburton, 135 Ark. 592, 204 S. W. 213, and in so doing stated that proof alixmde could not be used to cure or perfect the following void description in the tax deed: “N.'of R. R. frl. SW^ T. 6 N. R. 7 E,” because the letters “R. R. ” furnished no key or suggestion through which the land might be located. The letter “R” or “r” in the description before us could as well refer to ridge or road as river, or to any natural or artificial monument, where such letters were used in spelling the monument in mind. The description is void on its face, just as the description was in the tax deed involved in the case of Brinkley v. Halliburton, supra.

It is unnecessary, in this view of the case, to discuss the other ground upon which the tax title is assailed.

On account of the error in upholding the validity of the levee tax sale the decree is reversed, and the cause is remanded with directions to cancel the trust deed as to the forty-acre tract in question.


author: Mehafey, J.

text:
    Greer v. Davis.
    Opinion delivered April 30, 1928.

      W. E. Beloate, for appellant.

      Smith & Blaclcford, for appellee.
   Mehafey, J.

The appellees borrowed $1,000 from the appellant on September 15, 1926, and executed four promissory notes in the sum of $250 each, due and payable one every three months, beginning December 15, 1926, with interest at 10 per cent, per annum from date until paid. To secure the payment of said indebtedness, appellees executed to the appellant a mortgage conveying lot 6, in block 8, in the original town of Hoxie, Arkansas, and also stock of dry goods and groceries located on lot 2, in block 19, in the original town of Hoxie, Arkansas. The plaintiffs also had fire insurance on their house, with a mortgage clause in favor of appellant as his interest might appear, the insurance policy being for $2,000.

When appellees signed the note and mortgage for $1,000, appellant gave them a check for $950, retaining $50, but charging 10 per cent, on the $1,000. The evidence on the part of the appellees showed that the $50 was given as a bonus in addition to the 10 per cent, interest on the $1,000, and that when the property of appel-lees was destroyed by fire and the insurance collected, appellant insisted on the payment of the $1,000 and interest.

The testimony on the part of the appellant is to the effect that he agreed to lend $1,000, and that when he went to make out the check appellee said $950 was all he needed at that time, and appellant thereupon told him he would give him a check for $950 and retain $50, as appel-lee did not need it at that time, and appellant told him that, if agreeable, appellant would defer the payment of it until he could make some collections. That he himself could use the -$50 to good advantage, but that when the appellee wanted it he could have it.

It would serve no purpose to set out the testimony in full, the appellees ’ testimony tending to show that the $50 was a bonus and the appellant’s testimony tending to show that he did not intend to charge him more than 10 per cent, interest.

The chancellor found the contract to be usurious, and entered a decree in favor of the appellees, and appellant prosecutes this appeal.

The Constitution provides: “All contracts for a greater rate of interest than 10 per cent, per annum shall be void as to principal and interest. And the General Assembly shall prohibit the same by law; when no rate of interest is agreed upon, the rate shall be 6 per cent, per annum.” Art. 19, § 13, Constitution of the State of Arkansas.

Section 7362 of Crawford & Moses’ Digest is a copy of the article of the Constitution above set out. Section 7363 provides:

“All bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved, any greater sum or greater value for the loan or forbearance of any money, goods, things in action, or any other valuable thing, than is prescribed in this .act, shall be void. ’ ’

And § 7364 provides, among other things, that liens created or arising out of a deed of trust to secure the payment of a usurious contract shall be void.

Appellant’s first contention is that the chancellor erred in overruling the demurrer to the complaint. The complaint alleges, among other things, that, at the time of the execution of the notes and mortgage, the appellant, Greer, executed four notes for $250 each, and that the appellee loaned plaintiffs only $950, retaining $50 as additional interest to the said ten per cent, per annum provided in said notes and mortgage, whereby the said notes, mortgage and the interest of the said Greer in the same and the said check and voucher were void because of the usurious interest charged for the loan of said money.

We think the complaint sufficiently alleged that this was a contract whereby Greer reserved, took or secured a greater sum or greater value for the loan or forbearance of money than is prescribed by law. And it sufficiently stated a cause of action charging usury.

It is next contended by appellant that the chancellor erred in permitting in evidence the testimony of Silphey Davis, the wife of D. E. Davis. She was one of the makers of the note and of the mortgage, and of course had a right to testify in her own behalf. Some of the testimony of Mrs. Davis was incompetent, but the presumption'is that the chancellor considered only the competent testimony.

“But chancery cases are tried upon ¡appeal de novo. It is presumed that the chancellor heard the case only upon evidence that was competent and relevant to the issues made. Upon appeal in chancery cases, errors which relate .to rulings upon the introduction of evidence will not be passed upon; but, in the trial of such chancery cases upon appeal, any evidence that was improperly excluded below will be considered, and evidence that was improperly received will be disregarded, and the case will be decided here solely upon competent evidence.” Cox v. Smith, 99 Ark. 218, 138 S. W. 978; Niagara Fire Ins. Co. v. Boon, 76 Ark. 153, 88 S. W. 915; Latham v. First National Bank of Fort Smith, 92 Ark. 315, 122 S. W. 992.

Appellant’s next contention is that the chancellor erred in permitting the introduction in evidence of the answer of appellant per se. We do not agree with the contention of the appellant. The answer was properly admitted in evidence.

“It is not necessary to the competency of the answer as against the party pleading it that it be sworn to by him. It is a declaration, and competent as an admission, whether verified or not. * * * The competency of an answer as evidence does not depend upon its being a valid and subsisting pleading. It is competent as a declaration of the party against interest, although it has never been filed, or where it has been withdrawn or superseded by an amended answer.” Encyclopedia of Evidence, vol. 1, 449.

Pleadings in a cause sworn to are not only competent in evidence but are .said to be judicial admissions and a waiver of proof on all matters outside these lines of dispute.

“Such intrinsic pleadings, being upon their face direct and plain assertions made for a serious purpose, would naturally be supposed to be available as admissions ; and the inquiry plausibly arises, why should they not be? Viewed in the light of the principles of the present subject, there can be but two conceivable objections; one is the objection that they were not made by the party himself, nor by any one authorized to speak for him; the other is that they are conventional or hypothetical only, and not intended to be taken as sincere or absolute assertions.” Wigmore on Evidence, vol. 2, 539.

This same author says, on page 548 of the same volume:

“When a pleading is amended or withdrawn, the superseded portion disappears from the record as a judicial admission limiting the issues and putting certain facts beyond dispute. Nevertheless, it exists as an utterance once seriously made by the party.”

“But it does appear in the petition of Mrs. Walton to the Jefferson Probate Court for dower in the estate of Solomon Walton, deceased, that she (Mrs. Whitley) was dead when it was filed, and it was filed before the land belonging to Walton’s estate was sold by his ad-ministratrix. The petition was verified by Mrs. Walton, and was admissible as evidence in this action in the nature of an admission that Mrs. Whitley was dead at the time it was filed in court, subject to rebuttal and explanation.” Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589, 29 Am. St. Rep. 17.

“It is insisted that appellee is bound by his statement contained in an answer filed by him in another action between the same parties, to the effect that appellant agreed to furnish him a house to live in for ‘twelve months from and after January 1, 1908.’ Appellee’s answer in that case was competent evidence in this case as an admission, but it is not conclusive, and is subject to explanation. It was considered by the jury along with the other testimony in determining the terms of the contract.” Valley Planting Co, v. Wise, 99 Ark. 1, 123 S. W. 768, 26 L. R. A. (N. S.) 403.

Declarations of parties to suits, whether written or oral, whether made in court or out of court, may be introduced as declarations or admissions against interest.

It is next contended that the evidence is insufficient to support the finding of usury. We think that the evidence sustaining the chancellor’s finding is clear and convincing, and the decree is therefore affirmed.


author: Mehaffy, J.

text:
    Jackson County Gin Company v. McQuistion.
    Opinion delivered April 30, 1928.

      Pickens & Ridley, for appellant.

      Appellee pro se.

   Mehaffy, J.

The appellee began snit in the justice of the peace court in Jackson County, Arkansas, on a contract, alleging that the appellant had agreed to sell him 50 bales of cotton, and that appellant had breached the contract and damaged him in the sum of $118.15. The case was tried in justice court, and appealed to the circuit court, where it was tried, and the jury returned a verdict for the appellee for $118.15. Appellant filed its motion for a new trial, which was overruled, exceptions saved, and it prosecutes this appeal to reverse said judgment.

The plaintiff testified that he made a contract with the defendant to buy 50 bales of cotton, and that the following is a confirmation of the contract:

“CONFIRMATION OF SALE

Sign and return at once.

“Newport, Ark., 10-30-26.

“R. P. McQuistion,

“Newport, Arkansas.

“For account of H. C. McGown & Co.

“We hereby confirm the sale of 50 bales of merchantable cotton to you at 12.26 cents per pound, basis ., delivery to be made within ten days, and weights guaranteed to be correct upon delivery to you at the compress at Newport. Compress weights to govern.

“Jackson County Gin Co.

“By James..

“Description of cotton: :St. low 11-16 — 125'off; 150 off; !St. good ord. 8c; good ord; 7^20; low mid. 101 16-300 off; low mid. 1, 350 off.”

Indorsed on back in pencil: ‘ Market day be bought. ’ ’

Plaintiff further testified that the basis for middling on the day of the contract was 12.26; that the defendant delivered 33 bales within ten days under this contract. Plaintiff had sold the cotton to EL C. McGown & Company and delivered to them 33 bales, but could not get any more to deliver of the color and quality at that time of year. It bad been raining, and the cotton had reduced in grade and color.

Appellee had been in the cotton business 22 years. The defendant tendered him 17 bales of cotton in January, 1927, and there 'were 4 bales that were up, and the rest of it was too low. Witness sent the cotton to Memphis to H. C. Me Grown & Company, and the Memphis firm, declined to accept the cotton. It was off color, and had shale in it, some snaps, and roughly picked. A blue color made a difference in price of one cent a pound. Witness had Tom Hutson to class the cotton.

There was conflict in the testimony as to whether the cotton was the grade specified in the contract, and it would serve no useful purpose to set out the entire testimony. The testimony- of appellant tended to show that the cotton sent to appellee was the kind specified in the contract.

The appellant requested the court to instruct a verdict in its- favor, which the court refused, and the court thereupon instructed the jury as follows:

Instruction No. 1. This is an action ¡by the plaintiff, E. P. McQuistion, against the Jackson County Gin Company, in which McQuistion seeks to recover the sum of $118.15, which he alleges he is entitled to, due to the failure of the defendant to comply with a certain contract whereby they had agreed to sell and deliver to him fifty bales, of cotton. The first question, gentlemen, for you to determine is whether or not the cotton, the seventeen 'bales of cotton tendered by the Jackson County Gin Company, complied with the class and grades called for in the contract which has been introduced as evidence in the case.

“Instruction No. 2. The burden is on the plaintiff, McQuistion, to- show by a preponderance of the testimony that the defendant, Jackson County Gin Company, failed to deliver and tender to him seventeen bales of cotton of the grades and color called for in the contract of purchase.

Instruction No. 3. Now, if you believe from a preponderance of tbe testimony that tbe defendant, Jackson County Grin Company, failed to tender and deliver, to tbe plaintiff, ft. P. McQuistion, seventeen bales of cotton of tbe grade standard called for in tbe contract of purchase entered into with tbe plaintiff on tbe date mentioned in tbe contract, then your verdict should be for tbe plaintiff for the amount sued for, or $118.15; and, unless you so believe, your verdict should be for tbe defendant.”

Instruction No. 4 was an instruction to the jury about tbe credibility of witnesses and weight to 'be given to their testimony, and instruction No. 5 directed them as to the form of their verdict.

None of the instructions were objected to by appellant except No. 3. ■

Appellant’s first contention is that the verdict of the jury was not responsive to tbe law given by the court and the evidence introduced in the case. It is insisted that tbe suit was upon a written contract for tbe sale of 50 bales of cotton, and Tom Hutson, who classified it, classified it as strict good ordinary and good ordinary cotton. And appellant insists that there was. nothing said in the written contract about color, and for that reason the contract could not have been construed to mean that the cotton should be white, unless the same had been specified in the contract; that the cotton was up to the grade and standard specified in the written contract; and it is argued that that contract could not be changed by .the introduction of oral testimony, and that it was error to admit testimony as to the color of the cotton, or to admit any oral testimony about the cotton..

Even if the contract was entered into as alleged, and appellant breached the contract, it would of course be liable in damages for a breach of the contract. And there seems to be no serious controversy about the amount of damages. The appellee testified that he bought the cotton himself and sold it to’ the Memphis concern, and that he was damaged $118.15. If appellant is correct, and the testimony as to the color and grade of cotton was inadmissible, a verdict should have been directed for appellant. It is a matter of common knowledge that the price of cotton is affected by its color, and^that cotton that has been colored or stained or damaged in that way will not sell for the same price that white cotton would. And, while it is a general rule that parol evidence is not admissible to vary or contradict the terms of a written contract, it is admissible to show the intention of the parties, and the terms of a written contract are not contradicted or Varied by showing the real intention of the parties. Davis v. Reynolds, 154 Ark. 101, 241 S. W. 379.

The parol testimony introduced in this case does, not violate the rule making parol evidence inadmissible to vary or contradict the terms of a written contract. The contract in this case provided for a certain grade of cotton. The testimony on the part of the appellee shows that the cotton offered did not measure up to this grade, and that, when cotton was sold as this cotton was, it was understood between buyer and seller that it should be of certain quality, and that both parties understood this contract to mean that the cotton should not be off color, and that this was the intention of the parties. While parol evidence is not admissible to vary the terms, of a written contract, it is admissible to show what the parties intended to express by the language adopted.

“Parol evidence is admissible to show a general and uniform custom or usag'e in the trade or business to which a contract relates, at the place where it was made or is to be performed, in those cases where the instrument is silent, or the terms and language employed are of doubtful import, or where such evidence is essential in order to give effect to the writing. * * * Where a word or phrase has, by reason of a custom or usage, a particular or technical meaning in a particular neighborhood or locality, and is used in an instrument made at that place or in that locality, the meaning of such word or term may be shown by parol evidence. And to authorize the admission of such evidence it is not necessary that the custom or usage should have existed for any considerable length of time, it being sufficient if known to the parties at the time they entered into the contract.” Enc. of Ev., vol. 9, 360.

It is true that, where a contract is in writing, clear and unambiguous upon its face, and purports to contain the complete agreement of the parties, parol evidence is not admissible to show that the actual or secret intent of the parties was different from that expressed in the writing. Parol evidence cannot be introduced to vary or contradict the written contract. But this rule, like all other rules, has exceptions.

“The general rule that parol evidence is not admissible to contradict or vary the terms of a written contract is neither invariable nor inflexible, but adapts itself to the manifold and shifting exigencies of human affairs. * * * The law takes into consideration the fact that most agreements are drawn up by unskilled persons, ignorant of the legal rules of construction, who very frequently do not embody the entire agreement, or else express it vaguely or ambiguously; and the fact that, even where agreements are drawn up by legal experts, the same faults and defects are attributable, sometimes from insufficient instructions from the client, sometimes from error of the counsel himself. A great deal of judicial leniency should be and is extended to uninstructed persons, where experience has demonstrated that some of the wisest lawyers who have ever lived have not known enough law to draw their own wills. * # * The body of the exceptional law that has thus, sprung up is much larger than that of the corroborative law. ” Browne on Parol Evidence, 2.

The original contract in this case was oral, and what the parties now refer to as the contract was a confirmation of the oral contract, and is incomplete, and evidently does not undertake to set out the complete contract. It would hardly be contended that it would be a compliance with the contract to send blue cotton or cotton that was damaged in any other way, although the contract itself says nothing whatever about color.

It is insisted that the 'court erred in permitting the plaintiff to introduce in evidence Exhibit E. Exhibit E was a receipt given the appellee by II. Y. McG-own & Company, showing the amount of money paid by the appellee on account of the breach of his contract. This receipt was not admissible in evidence, but it 'could not have been prejudicial, because the undisputed testimony showed that the appellee paid the Memphis concern the amount for which the receipt was given.

Appellant next contends that the court erred in refusing to instruct the jury to return a verdict for appellant. The testimony was 'conflicting, and it was not error to refuse this instruction. The court properly instructed the jury that they must determine from the evidence whether or not the 17 bales of cotton complied with the class and grades called for in the contract, and that the burden was on the appellee to show by a preponderance of the testimony that the appellant failed to deliver and tender to him 17 bales of cotton of the grades and color called for in the contract.

The weight of the testimony and credibility of witnesses were questions for the jury, and their finding is conclusive here, there being substantial evidence to support the verdict.

We find no prejudicial error, and the case is therefore affirmed.


author: Kirby, J., Mehafey, J.,

text:
    Thane v. Merchants’ & Farmers’ Bank of Dumas.
    Opinion delivered February 20, 1928.

      E. E. Hopson and Coleman .& RiddicJc, for appellant.

      Palmer Danaher and Mike Danaher, for appellee.
   Kirby, J.,

(after stating the facts). It being conceded, as well as shown by the undisputed testimony, that the stock of the appellee bank owned by appellant was turned over to the bank and sold and the proceeds thereof deposited in the bank, to which appellant was in no wise indebted, the burden of proof was upon the bank to show that it was not indebted to or liable for the payment to the appellant, the owner of the stock, for the amount realized from the sale thereof and received by the bank.

The testimony discloses that there was no intention on the part of appellant to make a gift or donation of his stock or its proceeds to the directors of the bank or to the bank itself, and that the transaction did not constitute a gift or donation to either the directors or the ■bank, as the chancellor correctly held.

While there is no conflict in the testimony as to what was actually done so far as the stock being turned over to the Bank Commissioner, the sale thereof for the par value, aiid the deposit in the bank of the proceeds realized therefrom, are concerned, the evidence is in sharp conflict as to the intention of the parties in'concluding the transaction.

The other directors apparently had in mind the intention not to attempt to rehabilitate the bank or restore its reserve so long as appellant, to whom some of them were unfriendly, was connected therewith in an official capacity. They refused to assist appellant in borrowing any money to restore the reserve, well knowing that he had exhausted his credit and resources in procuring funds to keep the other banks, which he had organized and been connected with, in operation. They insisted that he surrender his stock to the bank, and told the Commissioner, and through him the appellant, that, unless it was done, they would make no effort to keep the bank open and in operation, and that it would be closed by the Commissioner, as he had notified them would be done. They also knew that the appellant had refused to turn over his stock to the Commissioner or the bank as a gift or donation, or to consider the proposal of one of the directors, made at the Dumas meeting, that hé might be allowed fifty per cent, of the value of the stock upon compliance with this request or demand of the directors.

Appellant states lie never bad any intention of making a gift or donation of Ms stock or its proceeds to either the bank or the other directors, and that, in surrendering it for sale that the proceeds might he used in restoring the reserve for the continued operation of the •bank, he made no such gift or donation, and that the bank was liable for the repayment to him of the value of the proceeds of his stock deposited therein.

The directors contend, on the other hand, that but for their understanding that the stock was surrendered to be sold and the proceeds deposited in the profit and loss account for the bank’s benefit, without any liability on its part for the repayment of the value thereof to appellant, the owner of the stock, all of which was known to appellant, they would not have sold or purchased it and continued the operation of the bank, and that appellant is estopped by his conduct about the transaction to claim any liability against the bank for payment of the proceeds realized from the sale of his stock.

There is sharp conflict in the testimony about the intention of the parties, but, as already said, the burden of proof was upon appellee, having received the proceeds of the sale of appellant’s stock in its bank, to show that it was done under such conditions as relieved it from liability therefor, or to return the amount thereof to appellant. It cannot be said that it has discharged such burden. After the negotiations had proceeded to the point of delivery of the stock to the Bank Commissioner, upon agreement to be sold at not less than par and the proceeds deposited in the bank, increasing the reserve' to the legal requirement, one of the directors insisted that the agreement be reduced to writing, which was done by the Bank Commissioner, and signed by the appellant.

The other directors claimed that the Bank Commissioner was their agent, or represented them as well as the bank, in his negotiations with the appellant for the delivery of the stock, and the transfer thereof was written by him at their request, and signed and executed by the appellant in their presence. This writing, under the usual rule, should he construed most strongly against the party by whom it was prepared, and, in any event, it must be held to contain the agreement of the parties aibout the transfer.

The claim of the officers of the bank and the bank itself that the proceeds of the stock sold should be deposited in the bank in the profit and loss account, without liability for its repayment, is certainly not supported by the written memorandum or assignment, which appears to be complete and free from ambiguity, and the parol testimony should not have been heard to engraft a condition upon such a writing not expressed therein. In any event the finding of the chancellor that the agreement was made by appellant to allow the proceeds of the sale of his stock to be deposited to the profit and loss account, without liability on its part to the owner of the stock, and that the conduct of appellant in making the transfer of the stock under the conditions was such as to mislead the -appellee bank and its officers and estop appellant from claiming any of the proceeds from the sale of his stock deposited in the bank, is contrary to the preponderance of the testimony.

Appellant’s continued refusal to agree to any terms by which his -stock was to be used as a gift or donation to the bank or its directors, his statement that no such agreement was made, and the written memorandum or assignment of the stock in accordance with the agreement, shows a preponderance of the testimony in appellant’s favor, in our opinion.

The chancellor erred in holding otherwise, and the decree is reversed, and the cause remanded with directions to enter a decree for appellant in accordance with this opinion.

Mehafey, J.,

(on rehearing). The facts are stated in the original opinion, which was handed down February 20, 1928. A majority of the court has reached the conclusion that a rehearing should be granted and that the decree of the chancellor should be affirmed.

The appellant, Mr. Thane, was president of the Farmers’ & Merchants’ Bank of Dama®, and the Bank Commissioner, after an appraisal of the assets, determined that the hank had losses considerably in excess of their surplus and undivided profits account and a large number of slow and doubtful papers. And on the 6th day of March the directors of the bank stated to the Bank Commissioner that they were unable or unwilling to finance the bank. Mr. Thane, the appellant, owned a large amount of stock, $17,000. A number of directors and other witnesses stated that, if Mr. Thane’would turn over his stock to them, they would pay par for it and place the proceeds of the sale of the stock in the bank to the profit and loss account. Or, if Mr. Thane did not wish to do this, that they would turn over their stock to him if he would finance the bank. They were endeavoring to make some arrangements to finance the bank because, as they stated, they did not want another bank failure in Dumas. And if Mr. Thane would turn over his stock to them they would finance the bank, or, if he would finance- it, they would turn over their stock to him.

It is true, as stated in the original opinion, that the appellant was not indebted to the bank, but, if the bank were insolvent and some arrangements were not made, according to the testimony of some of the witnesses, the condition of the bank was such that it would not pay more than 25 per cent, of its debts, and the stockholders would not only have nothing of value in their stock, but would be called upon to pay an assessment of 100 per cent. No one, of course, regarded the stock as having value.

Mr. Thane himself testified that he attended a meeting of the board of directors, and learned the condition of the bank from the statement submitted by Mr. Byrne, and stated that the directors could get whatever money they wanted on a joint note of all the directors, which he proposed to sign with them. This proposition was submitted to each of them individually and personally, and all of them declined to sign the note with him. They then said if appellant would give them his stock they could get all the money they needed, and he declined to do this. He further testified with reference to the board of directors: “They wanted me to give them my stock. They said if I would give them my stock they could raise the money that they needed — that the 'bank would need — ■ and I declined to give them my stock. ’ ’

Mr. Thane testified'that he afterwards had -a meeting at Little Rock, first with Mr. McKee, and he told Mr. McKee he would not give up his stock. He said that the directors were demanding either money or his stock, and Mr. McKee-told him, ,so he testified, that he was satisfied the directors meant what they said; that, if Mr. Thane would not find them some money or give them his stock, they would close the bank, and Mr. McKee was very anxious to avoid anything like that. Also Mr. McKee told appellant that he was satisfied that there was a feeling at Dumas among the directors that appellant should disconnect, himself or sever himself from the bank. Appellant then testified as follows:

“.So, after discussing — talking the matter over in a general way, I concluded that I would let them have the stock, because, if I found the money, which I think I could have done, the only — the question at once occurred to me, if I help them out with money this time, when will the next demand — when will a similar demand be made upon me? So I made up my mind to let them have the stock and sever .my connection with the bank.”

After the conference between Mr. McKee and appellant, according to appellant’s testimony, they went out and met the other parties, and Mr. McKee told them that he had got the stock, and some one insisted that it be reduced to writing, and the. following is a copy of the writing. “Little Rook, Ark., 2/15/1922.

“I hereby turn over to Chas, McKee, Bank Commissioner, 660 .shares of stock of the Merchants’ & Farmers’ Bank of Dumas, to be delivered to new and old stockholders, on the payment by them of the par value of said stock into the Merchants’ & Farmers’ Bank of I)umas- “H. Thane.”

It is true, as stated in the original opinion, that appellant stated he never had any intention of making a gift or donation of his stock or its proceeds, either to the bank or to the directors, but the undisputed proof is, ■when they held their meeting at Dermott, that they demanded his stock, and Mr. McKee told him the directors meant what they said, and, unless he gave them his stock, the bank Avould close. Of course he knew that if it did his stock was not only worthless, but he would probably have to pay an assessment on his stock. The directors were demanding this, or that they would turn over their stock, give it to Mr. Thane, if he would finance it. There had never been any offer or suggestion that, whether Mr. Thane gave up his stock or the directors gave up theirs, there would be any amount paid. Mr. Thane says that one of the directors told him at one time that, if he would give his stock, they might be able some time thereafter to work it Out and pay him 50 per cent. But, at the meeting of the board of directors and at all other times, it was understood by all that the directors were proposing to give their stock, not sell it, but give it to Mr. Thane if he would finance the bank, or, if he did not do that but would give his stock to them, not to the bank, they would finance it. This stock, after being turned over to Mr. McKee, was sold, most of it to persons who were not stockholders at the time, and they paid par for it, and this money was put into the bank to the profit and loss account.

The undisputed proof shows that, unless one or the other of these methods had been adopted, the bank would have failed, and the delivery of his stock with the understanding that he was to get par for it would have left the bank in as bad condition as it was. The stock would have been a liability. And certainly no one could believe from the testimony in this case that the stock was worth par at that time. In fact, according to the testimony, it was worthless unless the bank received assistance immediately, or, as Mr. McKee told Mr. Thane, unless he either took the directors ’ stock and financed the bank or turned Ms stock over to them and 'let them finance it, the bank would have to close, and if it closed it would have been able to pay 'but 25 per cent, on its debts, and every stockholder would have been assessed 100 per cent, on the stock he owned.

These persons that purchased approximately $14,000 or $15,000 of the stock turned-over to the Bank Commis-si oner paid par for it. They purchased it with the understanding that $17,000 went into the bank as a part of its assets, to the profit and loss account. If they take that out, these persons who paid par for stock that was worthless if the bank failed would now lose all they paid after putting up the money, and Mr. Thane would get par for his stock. Certainly no one understood that Mr. Thane was to get any pay for his stock except Mr. Thane, and, even if he understood it, he would, as the chancellor held, be estopped.

When we consider the testimony of Mr. Thane when he said, “They wanted me to give them my stock. They said if I would give them my stock they could raise the money that they needed, that the bank would need, and I declined to give them my stock,” it appears that, at the first meeting, the directors wanted Mr. Thane to give the bank his stock. Nothing was said about paying for it; and then when he came to Little Rock and had a private conversation with Mr. McKee, the Bank Commissioner, and Mr. McKee and Mr. Thane came out together, where the other directors and other persons interested were, and Mr. McKee stated to them that he had got Mr. Thane’s stock, and it must be remembered that this was after he had told Mr. Thane that the directors meant what they said — he would either have to give his stock or take the other directors ’ stock and finance the bank or it would be closed — we are forced to the conclusion that the directors and other persons who purchased the stock understood that there was to be no payment for the stock, but it was to g’O into the bank to the profit and loss account, and the persons who purchased it did it with that understanding. So, whether- Mr. Thane intended it or not, we think he is estopped, as held by the Chancellor, and cannot now claim pay for his stock, the proceeds of which went into the bank. The decision of the chancellor should be upheld, unless it is against the preponderance of the evidence.

We think the decree is supported by the preponderance of the evidence, and the petition for rehearing* is granted and the decree of the chancellor is affirmed.

Hart, C.J., and Kirby, J., dissent.


author: Kirby, J.

text:
    Pate v. Bryan.
    Opinion delivered February 27, 1928.

      Saxon, Wade & Warren, for appellant.

      Powell, Smead' & Knox, for appellee.
   Kirby, J.

Appellant, Pate, brought this suit in the chancery court, Second Division, against J. W. Bryan, alleging that defendant was indebted to him in the sum of $1,549.38 on account for materials furnished defendant, in the sum of $622, and on account of a lien fixed on plaintiff’s property by reason of purchases made by defendant while constructing a certain bouse for plaintiff, in the sum of $927.83.

Plaintiff executed :a bond at the institution of the suit, and named in his complaint as garnishees the First National Bank of El Dorado, Farmers’ & Merchants’ Bank of Bearden, and Gus Keating of Eli Dorado, and writs were issued on the 8th day of July, 1926, ¡and served on the First National Bank of El Dorado, on Gus Keating on the 9th day of July, 1926, and on the Farmers’ & Merchants’ Bank of Bearden on the 12th day of July, 1926.

Bryan answered on July 29, 1926, denying any indebtedness to plaintiff, and, by cross-complaint, sought to recover $2,600 which he alleged plaintiff owed him.

Plaintiff alleged in his complaint that, in the con. struction of the house for him, defendant had purchased material from J. P. Wright, which was used in the building, for which he owed $927.83, and for which Wright had'filed a lien against plaintiff’s property.

Defendant ¡answered, admitting the purchase of material from Wright, that it had not been paid for, and prayed that Wright he made a party defendant, which was done.

Wright, on December 3, 1926, filed an answer to defendant’s cross-complaint, alleging the sale of the material to defendant, used in construction of plaintiff’s house, that he had filed a materialman’s lien theréfor, as prescribed by law, and prayed judgment and foreclosure thereof.

On July 10 the First National Bank, garnishee, answered that it had in hand money, credit and .effects belonging to defendant in the sum of $1,286.05.

On December 6,1926, Gus Keating intervened, claiming that the funds garnished in the First National Bank belonged to him, and had been deposited in the bank by him to the credit of Bryan, defendant, for convenience in payment of claims for labor and material furnished in construction of the house, and could not be used for any other purpose.

On the 23d day of March, 1927, the court entered a decree for J. P. Wright for his debt, and fixed a lien against plaintiff’s house for payment, and in - favor of plaintiff against Bryan for $964.35. The decree ¡adjudged Gus Keating, intervener, to be the owner of the funds held by the El Dorado bank to the credit of J. W. Bryan, and that there was no liability of1 the bank to plaintiff under the garnishment against it. Refused to enter judgment against the other garnishee, the Farmers’ & Merchants ’ Bank of Bearden and Gus Keating*, who had been served with a garnishment and failed to answer, holding in the Keating garnishment the pleadings amended to conform to the proof.

Plaintiff appealed from that part of the decree adjudging Gus Keating to be the owner of the funds first garnished in the El Dorado hank to the credit of defendant, Bryan, and from that part of the decree refusing to enter judgment against the Farmers’ & Merchants’ Bank of Bearden and Gus Keating, garnishees, for want of ¡an answer.

It is urged that the court erred in holding* the money deposited in the El Dorado bank, garnishee, to the credit of appellee, Bryan, the contractor, was the property 01 Keating, and not subject to garnishment, and the contention must 'be sustained.

The undisputed testimony shows that the money was deposited in the garnishee hank by the owner for whom the building was being constructed, to the credit of the contractor, a general deposit, without restrictions, so far as the bank was concerned, creating the relation of debtor and creditor between the appellee bank and Bryan, the contractor, who was neither agent of nor trustee for Keating, the owner.

This -case is unlike Hine v. Brown, 135 Ark. 393, 205 S. W. 657, and Geyer & Adams Co. v. Bank of Central Arkansas, 170 Ark. 1016, 282 S. W. 358, which appellees insist are in point and controlling here. In the H-ine ease there was no apparent general deposit of money in the bank to Brown’s credit, but he was given a cashier’s check for a specified amount for a particular purpose, under an express direction or agreement that it should be returned to Hine if not used for this purpose for -which it was given, of redeeming- certain of the lands from a mortgage.

In the other case the bank was advancing the money-to Hicks to enable him to make a crop upon which it held a mortgage, and gave credit on its books to the mortgagors, against which they were only permitted to check for expenses of raising the rice crop, the bank reserving the right to refuse to pay' any check not drawn for this specific purpose.

Neither Keating, who deposited the money to the credit of the contractor, Bryan, nor the bank in which it was deposited, had or retained any control over the fund advanced. It follows that the chancellor erred in holding the money to be the property of Keating, and not subject to the g-arnishment.

No error was committed in refusing to render judgment by default against the other garnishees, who had not answered until the trial of the issues in the case, and, no judgment having been rendered against them for want of an answer, the court could have granted them further time to answer, upon proper request made therefor, as had been done already in the first instance. It was within the discretion of the court to permit the answer to be filed, under the conditions existing; and we cannot -say that the court abused its discretion in so doing. Geyer & Adams Co. v. Bank of Central Arkansas, 170 Ark. 1016, 282 S. W. 358.

Since the answer of the garnishee bank disclosed it had in its possession a small amount due the defendant, judgment should of course have been rendered therefor.

It follows that the judgment must be reversed, and the cause remanded with directions to subject the money in the hands of the garnishees, the First National Bank of El Dorado and the Farmers’ & Merchants’ Bank of Bearden, to the satisfaction of any amount remaining unpaid upon the judgment, and for further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.


author: Kirby, J.,

text:
    Estep v. Blue Ribbon Coal Company.
    Opinion delivered April 16, 1928.

      G. L. Grant, for appellant.

      White & White and Evans & Evans, for appellee.
   Kirby, J.,

(-after stating the facts). The appeal involves the construction of the statutes giving liens to miners as to whether such liens are superior to prior mortgages, the appellants insisting that the miners ’ liens are only subject to the mortgage of the leasehold interest in any event, and that their liens upon the machinery, material, supplies and specific improvements at the mine are superior to the bank’s mortgage, notwithstanding it was executed and recorded before their labor was done at the mine.

Appellants claim under the statutes, § 7293, C. & M. Digest, which is silent as to the priority of the time given, and act 615 of the Acts of the G-eneral Assembly of 1923, the first section of which gives laborers and materialmen who, under contract with the owner or lessee, perform labor or furnish material, machinery, supplies, etc., for operating, equipping, maintaining or repairing any mine, a lien on the land or leasehold interest therein, except the lien does not attach to the fee in the land when the labor is performed or material is furnished to a leaseholder.

Section 4 deals with the priority of the lien given, declaring that it ‘ ‘ shall, be prior and paramount to and in preference of any and all subsequent liens, incum-brances or mortgages, and * * *. The lien herein provided for shall attach to the machinery, material, supplies and the specific improvements made, in preference to any prior lien, or incumbrance, or mortgage upon the land or leasehold interest upon which the said machinery, material, supplies and specific improvements are placed or located; provided, however, that any lien, incum-brance, or mortgage upon the land or leasehold interest at the time of the inception of the lien herein provided for shall not be affected thereby; and the holders of such liens upon such land or leasehold interest shall not be necessary parties in suits to foreclose the lien hereby created.”

The statutory lien given to the miners for work done in operating the mine could not become paramount to a prior recorded mortgage unless the statute creating the lien manifests an intention to give it preference. In Easter v. Goyne, 51 Ark. 22, a case wherein the question involved was whether a statutory lien would take precedence over a prior recorded mortgage, executed after the passage of the act giving the statutory lien, the court said: “The statute under consideration does not evince the intention to give preference to the statutory lien, and, in the absence of a legislative intent to that effect, the courts have not, unless in exceptional instances, permitted the lien created by the statute to become paramount to a prior recorded mortgage. Jones on Liens, <§,§ 691-3, and cases cited; Jones on Chattel Mortgages, § 474.” See also the New Mexico case of Eccles, Artesian Well Supervisors, etc., v. Will, 170 Pac. 748, L. R. A. (N. S.) 1918C, 1022. In a note to this case, found on page 1024 L. R. A. (N. S-) 19180, it is said: “The view taken in the Eccles case, that, where the statute creating the lien is silent on the question, the lien does not take priority over an existing mortgage, is in accord with the general rule declared in such cases,” many of which are cited, and among them our case of Easter v. Goyne, supra.

It is true it is expressly provided that the lien given the laborers shall attach to the machinery, material, etc., in preference to any prior lien, incumbrance, or mortgage upon the land or leasehold interest upon which the said machinery, material, supplies and specific improvements are placed or located, provided that any lien, incum-brance or mortgage upon the land or leasehold interest at the time of the inception of the lien herein provided for shall not be affected hereby. The inception of the statutory lien could not have been before the material and supplies were begun to be furnished and the labor done, and it was not the intention of the statute to make the lien of the laborer or materialman superior to the lien of the prior mortgage upon the leasehold interest and equipment of the mine before the inception of the lien given the laborer by the statute, which expressly declares that such mortgage lien shall not be affected thereby. It was obviously not intended that the laborer or material furnisher should have a superior lien upon the leasehold and equipment of the mine to the lien of the mortgage existing at the inception of the statutory lien. In other words, at best, the statute, under a fair construction, cannot be held to intend the giving of a hen to laborers and material-furnishers on the materials, improvements and equipment of the mine already installed and covered by a valid mortgage of the leasehold at the inception of the statutory lien, which could attach only to such machinery, material, and specific improvements thereafter installed becoming superior to the mortgage lien therefor.

Since the testimony does not show that the machinery, equipment and specific improvements upon which the lien was claimed by appellants were installed in the mine after the miners began their operations and the materialman furnished such equipment, no error is shown in the decree as rendered, which must be affirmed. It is so ordered.


text:
    Great American Casualty Company v. Williams.
    Opinion delivered April 23, 1928.

      Trimble & Trimble, for appellant.

      Chas. A. Walls, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of recovery of benefits or indemnities under an accident insurance policy. The policy provides indemnity for accidental injury to insured “while actively engaged in farming, by actual contact with and while 'operating a threshing, mowing, reaping or binding machine, harrow or plow.”

Appellee was operating a binding machine, harvesting rice; was down under it, making .some adjustments or repairs, when a sledgehammer in the seat fell off and struck his foot, so injuring it that he was taken to the hospital, where his toe was amputated, and loss of 15 weeks’ time from total disability on account of the injury resulted.

The policy is written .in sections or divisions, and contains many separate provisions, in one of which it is expressly provided: “No recovery may be had under more than one of the provisions hereof, and in no event shall the company be liable for more than one of the specific losses named herein.”

Appellee alleged the right to recover on one of the provisions for the weekly indemnity -of $25 for total loss of time during 15 weeks, under another provision for payment of certain weekly indemnity for time spent in the hospital on account of the accident, not to exceed 4 weeks, and for $10 damages for the specific loss of his toe.

Appellant filed general and special demurrers to each clause of the complaint alleging the right to recovery, all of which were overruled. Denied any liability for the injury at all, and alleged that claiming the payment of the specific loss or indemnity in any'one provision of the policy precluded a recovery on every other provision thereof.

Appellant requested an instruction for a directed .verdict, which was refused, and the court found in favor of the appellee for $10 for loss of large toe, $'25 per week for 15 consecutive weeks for lost time for total disablement, $375, and $25 per week for three consecutive weeks and a fractional part of a week during which appellee was confined in the hospital, $82.14, and from the judgment rendered in the aggregate of $467.14 this appeal is prosecuted.

Appellant insists, first, that the accidental injury was not covered by the terms of the policy, claiming that the injury was not shown to have resulted from actual contact with the binding machine while operating it.

The repairing or readjustment of the machine was necessarily done as a part of its operation, and the accidental injury resulting from the falling of the sledgehammer out of the seat on the binder, where it was carried for use in repairing the machine, on the foot of appellee, while he was so engaged, was necessarily caused by actual contact with and while operating the binding machine, notwithstanding it resulted from the falling of the hammer carried for mailing such repairs, which was no part of such machine.

It is further insisted that, under the express terms of the policy, appellant was not entitled to recover under more than one of its provisions, and especially that he could not recover indemnity for the time spent in the hospital for treatment of the injury and amputation of his toe, since, in the clause of the policy making provision for payment of hospital benefits, it is expressly provided: “Where such confinement results from injury caused by any accident in or out of business for which no other indemnity is provided by the policy,” etc. We think this contention must be sustained, since provision in the policy is made for payment of a weekly indemnity for loss of time for total disablement caused by accidental injury, and also for the specific loss of the toe resulting therefrom, and the court erred in holding otherwise.

In .the policy it is expressly stated, under the heading “Important,” that it is a limited accident and sickness policy, paying indemnity for loss of life, limb, sight, or time, by accidental means, etc. It expressly provides that appellee is insured for the term of one year, subject to the provisions and limitations 'herein contained, against “the effects of bodily injuries caused directly, solely, and independently of all other causes, by external, violent, and accidental means,” etc.

Under part 3 of the policy a provision is made for payment, of a weekly indemnity of $25 for total disablement of the insured for not exceeding 15 consecutive weeks on account of any one accident, and under part 4 for specific losses for fracture of bone of the toe $10, and also, if the insured shall have inore than one fracture of those designated, he must elect which one he prefers payment for, since the company is only bound to the payment for one of those specified.

Appellant insists that, even though appellee was injured by-corning in contact with the binding machine while engaged in operating it, one of the hazards expressly covered in the policy by clause 12 of part 2, he cannot recover the weekly indemnity provided for accidental injuries, since it is not included in said part 3 of the policy, which attempts to limit the payment of such weekly indemnity to injuries expressly covered by clauses 1 to 9 of part 2.

This policy was prepared by the insurer, and purports to provide a weekly indemnity for injuries resulting from hazards insured against, and, where there is any doubt as to the meaning of the language employed, the policy must be construed strictly against the insurer and favorably to the insured. Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245, 203 S. W. 698; Home Mutual Benefit Assn. v. Mayfield, 142 Ark. 240, 218 S. W. 371; Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300, 247 S. W. 379; Benham v. American Central Life Ins. Co., 140 Ark. 612, 217 S. W. 462.

.A reasonable construction of the terms of the policy will not allow the insurer to escape liability for the payment of the weekly indemnity provided for accidental injuries resulting from a hazard expressly insured against, by numerous exceptions and contradictory and ambiguous provisions.

The court erred, as already said, however, in allowing a recovery of the hospital benefits, since, under the plain terms of the policy, no recovery can be had under more than one provision of the policy for the accidental injury, and for one of the specific losses designated resulting therefrom.

If the appellee will enter a remittitur within 10 days of the amount recovered for hospital benefits, $82.14, the judgment will be so modified, and affirmed, otherwise it will be reversed and remanded for a new trial. It is so ordered.


author: Wood, J.

text:
    Venable v. State.
    Opinion delivered April 30, 1928.

      Edward Gordon, for appellant.

      II. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Wood, J.

The appellant was convicted on a valid indictment of the crime of carnal abuse, and was sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of two years, from which judgment he duly prosecutes this appeal.

1. The indictment charged that the offense was committed in the county of Pope and in the State of Arkansas, “on the first of February, 1927.” .The ¡bill of exceptions shows the following:

Objection made by attorney for defendant during opening statement of the case by the State: “Do you state that this indictment does not state that this is the date? By the court: The court tells the jury that the date alleged in the indictment is not material. By Mr. Gordon: I want to state now that the prosecuting attorney, or hired counsel for the prosecution, has stated to the jury that, from the acts of intercourse, the prosecuting witness became pregnant, and is some time soon to become a mother; that the allegations in the indictment are material, because the defendant could not go to trial and make a proper defense if a fictitious date was used, and if the prosecuting attorney had another date and deliberately used this one, that we have been met by surprise, and ask that the case be withdrawn from the jury and be continued.’ Court: The court holds the objection is not well taken. Mr. Gordon:- We save our exceptions. The record will show that she had been called as a witness in the lower court, when the case was tried there, and that she swore it occurred just after Christmas. Court: Objections overruled, and your exceptions saved.”

Counsel for appellant contends that the court erred in not granting a continuance of the cause, stating that he was able to show by competent physicians and by the physical facts, that the child not having been 'born at the time of the trial, it was physically impossible for the alleged act of intercourse to have occurred just after Christmas in 1926, or the first of February, 1927; that the prosecutrix had testified in the justice court that the acts of intercourse with appellant by which she became pregnant occurred just after Christmas, 1926; that the prosecutrix had testified on the trial of the cause that the first act of intercourse occurred about March 25,1927, and the last some time in June. . Counsel urge that appellant was taken by surprise, under the above facts, and that the court erred in not granting a continuance on that ground. A complete answer to this contention as to the time alleged is contained in the statute, which provides that:

“The statement in the-indictment as to the time at which the offense was committed is not material, further than as a statement that it was committed before the time of finding the indictment, except when the time is a material ingredient in the offense.” C. & M. Digest, § 3019.

Time was not a material ingredient of the offense in the case at bar, except to show that, at the time the alleged offense was committed, the prosecutrix was under sixteen years of age. The prosecutrix testified that she was fourteen years old at the time .of the trial. The trial court did not err in declaring the date alleged in the indictment was not material. See State v. Gill, 33 Ark. 129-133; Marquardt v. State, 52 Ark. 269, 12 S. W. 562; Oakes v. State, 135 Ark. 221, 205 S. W. 305; Taylor v. State, 169 Ark. 589, 276 S. W. 577. The motion was not well taken as to what appellant expected to prove.

The statement of counsel in his brief that he was able to prove by physicians certain physical facts, and by other witnesses other facts which would show that his guilt was impossible, would not justify this court in reversing the ruling of the trial court in overruling appellant ’s oral motion for continuance. To be sure, the trial court may, in its discretion, grant an oral motion for continuance, under §§ 3129 and 3130, C. & M. Digest, because there is no requirement in these sections that such motions shall he reduced to writing. Nor does § 1270, C. & M. Digest — which, by § 3130, supra, is made applicable to criminal cases — require that the motion for continuance be reduced to writing and supported by affidavit, unless the opposite party demands it. Nevertheless, where the trial court overrules ail oral motion to continue or postpone a cause on the ground of surprise, the party who complains of such ruling, in order to make the error, if any, appear to this court, should set forth in the record or bill of exceptions the facts constituting such surprise. He should bring to the attention of the trial court, and then of this court, a statement of the testimony or evidence which he claims would show that he was surprised. In Dixon v. State, 46 Neb. 298, 64 N. W. 961, the Supreme Court, speaking of an oral request for continuance on the ground of surprise, says:

“In the showing made it was not' disclosed in what respect the defense expected to be able to meet the new phase of the evidence, or the names of the witnesses by whom it was to be met. In order to procure a continuance it should be shown that the party seeking the continuance expects to be able to procure material testimony, and the nature of such testimony. ’ ’

The mere statement of appellant that he could prove certain facts, if given an opportunity, is not sufficient, where the court refuses to accept the statement, to show that the court erred. Such a statement is too general. Appellant or his counsel should follow up such statement by detailing the testimony that could be had and the names of the witnesses who would so testify, and then verify the statement. See 'Standard Ency. Procedure, p. 471.

This court, in Bourland v. State, 158 Ark. 37, 249 S. W. 591, said: “Appellant filed an unverified motion for contimiance. It was not error to refuse to grant a continuance where the motion was not sworn to by appellant or his attorney.” Citing Brickey v. State, 148 Ark. 197, 231 S. W. 549.

2. The appellant next contends that the court erred in refusing to permit the introduction of the testimony of the prosecuting witness given in the justice court at the examining trial.

The Attorney General answers this contention as follows:

“The court did nof refuse to permit the introduction of any testimony taken at the examining trial which was in conflict with that given by the witness in this case. Moreover, the court went further than this by giving permission to counsel for defendant to call the prosecuting witness back for further cross-examination, and, upon re-examination of the witness, she admitted having testified to that part of the testimony previously given, and, notwithstanding this, the court held that the defense might introduce any part of the testimony previously given which contradicted her testimony in this case.”

We find that the statement of the Attorney General is borne out by the record. Therefore the above assignment of error cannot be sustained.

3. It is last insisted that “the testimony is insufficient to sustain the .verdict.” The prosecutrix, at the time of giving her testimony, was between fourteen and fifteen years of age. She testified that the appellant had sexual intercourse with her the first time about March 25, 1927, and the last time in June, 1927. The acts of sexual intercourse were in Pope County, Arkansas, at the home of her brother-in-law, Jim Venable, who was a brother of the appellant. The appellant at the time was living with his brother Jim. It is unnecessary to set forth the testimony of the prosecutrix as to the manner of the alleged sexual intercourse. If it occurred as she described, it was done forcibly, and against her will. But it is obvious that the grand jury did not believe her testimony to the effect that the acts of sexual intercourse were against the will of the prosecutrix, else the indictment would have been for rape instead of for carnal abuse. And we may say that the testimony of the pros-ecutrix at the trial as to the circumstances and manner of the alleged intercourse was so unreasonable and unbelievable as to make it highly improbable, if not impossible, that the acts of sexual intercourse took place in the manner detailed by her.

The learned counsel for appellant therefore argues that the jury were not warranted in finding that appellant had sexual intercourse at all with the prosecutrix. That is a manifest non sequitur. The prosecutrix was not yet fourteen years of age when the alleged acts of sexual intercourse occurred. That the prosecutrix had sexual intercourse was proved by the physical fact that at the time of the trial she was enceinte. This fact, established by the testimony of the prosecutrix and her mother, was undisputed. The prosecutrix, in testifying that the appellant had intercourse with her by force and against her will, was evidently endeavoring to shield her own conduct as far as possible from any censure, because of what had happened. At least, the jury might have so found. The jury might have discredited her testimony as to the manner of the sexual intercourse, and still have believed that sexual intercourse took place with appellant. Such was the exclusive province of the jury, as the sole judges of the credibility of the witnesses. The jury could accept and believe such parts of her testimony as they believed to be true and discard, such parts of her testimony as they believed to be false. If appellant had intercourse with the prosecutrix, since he was indicted and convicted of carnal abuse it is wholly immaterial whether the intercourse was with or without her consent.

The law was correctly declared by the trial court. Therefore the guilt or innocence of the accused, under the evidence, was purely an issue of fact for the jury.

Counsel for appellant relies upon the case of People v. Benson, 6 Cal. 222, Am. Dec. 507, where it is said:

“The case before us is supported alone by the evidence of the prosecutrix, a young, ignorant girl, thirteen years of age, and is so improbable of itself as to warrant us in the belief that the verdict was more the result of prejudice or popular excitement than the calm and dispassionate conclusion upon the facts by twelve men, sworn to discharge their duty faithfully.” But the doctrine thus 'announced has no application to the facts of this record. Under the rule of our own numerous decisions the case on the facts was peculiarly one for the jury. In one of our very latest cases it is said: ‘This issue of fact was one for the jury, and not for the courts to determine on appeal. It was not necessary for the statement of the prosecutrix to be corroborated upon the charge of carnal abuse. We cannot agree with the view expressed by learned counsel for appellant, that the testimony of the prosecutrix was so unreasonable and contrary to human experience that juries and courts shoidd disregard her statement.’ ” Head v. State, 175 Ark. 69, 297 S. W. 828. That is the doctrine applicable here.

Therefore let the judgment be affirmed.


author: Mehaeey, J.

text:
    Webb v. Smith.
    Opinion delivered April 30, 1928.

      Walter L. Pope, for appellant.
   Mehaeey, J.

This action was begun in the justice of the peace court in Randolph County, was appealed to the circuit court, and, after the evidence was introduced, the court directed a verdict for the appellee. Motion for a new trial was filed, overruled, and exceptions saved, and appeal prayed and granted.

The appellee testified in substance: That appellant’s two mares were bred to appellee’s jack, and that the fee was $10 each; that he had a notice on the barn door reading: “Terms $10 to insure a living colt. If mare is traded after service, fee becomes immediately due.”

The appellant testified that there was no notice on appellee’s barn, and that the only contract he had with appellee provided that appellee would guarantee a living colt, and, if a living colt was born, the fee would be $10 for .each colt. He proved that'the mares did not get in foal at all, and several months afterwards he traded the mares. Appellant did not claim that he had appellee’s consent to trade the mares.

Tim Knotts, who traded for the mares, testified that they were not in foal and they never did get in foal.

The appellant asked the court to give the following instruction:

“You are instructed that, if you find that the contract between the plaintiff, Smith, and the defendant, Webb, was that the plaintiff guaranteed a living colt born to each mare, and that this was the only contract between them, and if you further find that the defendant’s. mares did not get in foal from the service by the plaintiff’s jack, you will find in favor of the defendant.”

The court refused to give this instruction, and directed the jury to return a verdict for the plaintiff, which was done.

This court has said, in a case where the contract was that there should be no charge unless there was a foal, provided the owner of the mare did not sell or trade her daring the period of gestation, that that justified the court in finding that the contract was. one of insurance upon icondition. Pitchcock v. Donnahoo, 70 Ark. 68, 66 S. W. 145.

It is true that persons could make a contract of that kind, and, if they did, each party would he hound by it. They could make a contract that the fee would he due when the mares were traded or if the mare died, or that it might become due upon the happening of any other contingency, but in the instant case the appellant testifies that there was no such contract. The appellee, to be sure, says there was a sign on his barn- door announcing his terms, but the appellant testified that he did not see any notice, and that the only contract made was that the fee was to be due when there was a living colt.

If appellee’s contention is correct, the party claiming the fee could bring a suit two or three years after the service if the mares were traded, although they were never in foal. It may be in this case that the contract was as testified to by appellee, but the appellant testified to a different contract, and he had the right to have the question submitted to the jury and let the jury determine whether he was correct or whether the appellee was correct.

“Where a contract for service of a stallion insures conception, but provides for the payment of the fee when the mare ‘foals or is traded,’ the fee is due and collectable when the mare is sold during the ordinary period of gestation, although she is known to be with young, the sale operating to forfeit the insurance.” 3 C. J. 48.

But the appellant testifies that this was not the contract that he made. And they had a lawful right to make the contract that appellant says was made, and it was the duty of the court to submit the question to the jury, and the instruction requested by appellant was proper.

In the case of Snyder v. Slatton, 92 Ark. 530, 123 S. W. 640, the court said: “The uncontroverted testimony shows that J. P. Step sold the mare to William Snyder, and the -court holds that this amounted to trading the mare.” And the court further said in that case that, under the undisputed evidence in the case, therefore the mare ;was traded, and the debt was due.

The facts in the above case were, as stated by the court, that, under the contract, a colt was insured, and that the debt was due when that fact was ascertained or when the mare was traded. That was the uneontroverted proof in that case. That is not the proof in the instant case.

The Supreme Court of Indiana said, in a case involving’ a contract of this kind:

“Appellees ‘insured’ the mares to get with foal; but it was also agreed between them and Moddy, the decedent, that, if he parted with the ownership of the mares before the expiration of eleven months from the date of the service of the horse, he should forfeit the insurance, and pay the.agreed sum of $40. 'Within the'eleven months Moddy died, and the appellant, as executor, sold the mares. * * * The insurance or warranty on the part of appellees was conditional, the condition being that Moddy should not part with the ownership of the mares before the expiration of- eleven months from the date of the service of the horse. It is not clearly apparent why this con dition was annexed, nor how it could be of much importance, but it was a condition which the parties had a right to couple with the insurance, and one therefore by which they and their representative were and are bound. * * * The stipulated condition has not been complied with, and that releases appellees from their insurance! Moddy might have stipulated that the condition be dispensed with in the event of his death, but he did not do so.” Cummings v. Peed, 109 Ind. 71, 9 N. E. 603.

In the case at bar the appellee could have declined to make any contract unless appellant would agree to his conditions, and, if he did, appellant would have been bound. If the contract was that the fee was to be due when the mares were traded, then it would be immaterial whether they were with foal or not, but, if the contract was as contended for by appellant, then he would owe nothing.

The court therefore erred in its refusal to give the instruction requested by appellant, and for this-error the judgment is reversed, and the case remanded for new trial.


author: McHaNey, J.

text:
    Schalchlin v. Corney.
    Opinion delivered April 30, 1928.

      Price Shofner, for appellant.

      J. F. Wills, for appellee.
   McHaNey, J.

This appeal comes from a decree of the Pulaski Chancery Court sustaining a demurrer to appellant’s complaint, which alleged that the appellee is the administrator of the estate of Bettie Bowers, deceased, and that on February 5, 1923, by order of the Pulaski Probate Court, the appellee sold to him all the right, title and interest of the deceased in and to lot 5, block 5, MnDiarmid’s -addition to the city of North Little Bock, to provide funds to pay the debts against the said estate, for the sum of $1,185 in cash, which sale was confirmed by the probate court, and deed executed to appellant; that appellant and appellee thought a fee simple title was conveyed by said sale, and that the appellee represented to him that he was selling' a fee simple title; that he had a right to rely upon appellee’s representations in this regard, and that they both thought, for about two years thereafter, that the fee had been conveyed; that thereafter the collateral heirs of Wash Bowers brought suit against him to recover an undivided one-half interest in said land, .and did recover such interest; that he paid the sum aforesaid for the fee, and, by reason of a mutual mistake on the part of both him and appellee, he should recover $592.50, one-half the purchase price paid.

Other allegations are contained in the complaint regarding the claims filed, and an amendment to the complaint was filed, setting up other allegations, which are not necessary to detail.

We think the court correctly sustained the demurrer and dismissed the complaint for want of equity. The administrator was ordered to sell all the ‘ ‘ right, title and interest” of Bettie Bowers in and to said lot for the purpose of paying her debts, and only such interest was conveyed by the deed which was executed by the administrator, and no warranty of title was made. There is no allegation of fraud on the part of any one in the complaint, but the substance of the charge is that both he and the administrator thought a fee simple title was conveyed. But the fact that they were both mistaken in this regard does not make the estate liable for one-half the purchase price of said land. He made no investigation of the records of Pulaski County to determine whether the deceased owned the title to said property in fee, but says that he relied upon the representations of the administrator. When he discovered that he did not have the fee simple title, but only an undivided one-half interest therein, he made no offer to rescind the transaction, but elected to keep whatever interest he acquired therein, and to-sue for one-half the price paid.

This was a judicial sale. Sales made by executors, administrators and guardians under orders of the probate court are judicial sales, and, as a general rule, purchasers at such sales, as in all other judicial sales, act at their peril. In the case of Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102, this court said: “An administrator’s sale to raise money to pay debts is a judicial sale, according to all the tests that can he applied.”

And in Black v. Walton, 32 Ark. 321-324, this court said:

“A sale by a guardian of his ward’s land, under an order of the probate court, is a judicial sale, and, as a general rule, a purchaser at such sale acts at his peril. The guardian sells such estate only as his ward has, and the purchaser must make inquiry as to the title and the authority of. the guardian to sell. The guardian makes no warranty of title, and, if he covenants for title, he only binds himself personally. The rule caveat emptor applies to such sales.”

In that case the court cited McCauley v. Guynn, 32 Ark. 97, where it is said: “The rule caveat emptor applies to judicial sales. Gfuynn, in accepting a deed from one claiming to sell as guardian, was obliged to inquire, and he had the' means of ascertaining, by what authority he acted, and he took the conveyance at his peril. Borer-on Judicial Sales, § 450; Washington v. Roberts, 9 Ala. 297; Bingham v. Maxey, 15 Ill. 295.”

We do not think Black v. Walton, sup fur, gives appellant any comfort in his contentions, fc" the reason that' the facts are wholly different. There the guardian, Walton, attempted to sell land of his wards to which they had no title, at which sale Black became the purchaser, but, before paying the purchase price, he discovered that the wards had no title to the land, and refused to pay his bid, and this court very properly held that Black could not be made to pay his bid, since the wards for whose interest the sale was made had no title whatever to the land. But here, appellant acquired an undivided one-half interest in fee, entered into possession of the whole estate, .kept it for two years, when the heirs at law of the husband of Bettie Bowers took from him their one-half interest therein. The rule of caveat emptor applies with all its vigor and strictness to judicial sales, and, this being a judicial sale, it applies here.

We find no error, and the decree is affirmed.