text:
    Steele v. Rural Special School District No. 15.
    Opinion delivered October 7, 1929.

      George Steel, Will Steel, Reed & Beard and Chas. W. Mehaffy, for appellant.

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

(after stating the facts). The undisputed testimony shows that after improvements were made and the school established on the ground in controversy, several school districts were consolidated in 1924, and a larger schoolhouse, centrally located, was erected, containing four rooms, and adequate to the needs of the district ; only three of the rooms of the new building being occupied for school purposes, and a teacher living in the fourth. 'The school that had been held in the house in controversy was moved on the 1st otf January, 1925, to the new building in the consolidated district, the old building remaining vacant from January, 1925, until the summer of 1926, when appellant, after serving notice on the district, re-entered the premises and boarded up the old building, which was in a very bad condition, it being necessary to repair it in order to prevent its total destruction. No objection was made by the district when appellant took possession of the premises, which remained boarded up in the condition as already said until the summer of 1926, nor anything done before or afterwards indicating a waiver of his right, at which time extensive repairs were made on the building by appellant, and his tenant placed therein. Thereafter the president of the school board suggested that appellant should pay the board something for the building, and appellant stated that this was the first intimation that he had that appellee had expected to claim any pay for the building. The insurance on the building had been allowed to lapse by the district, and it was in a very dilapidated condition when appellant gave notice that he would take possession, some of the posts of the gallery having fallen down, and the roof was sagged down, the window casings broken around, and all the blackboards had been detached from the walls and removed along with all the school apparatus and equipment to some of the other school buildings.

The directors testified, Dr. Bowers, chairman of the board, stating that it would have cost more to repair the building than it was worth, and it would not take care of the pupils in the district, “so the board conceived the idea of abandoning this building and building a larger one near the center of the district. * * * We consolidated the district, and decided t© build a larger schoolhouse near the center of the district, and after the new building was completed we moved into it. ’ ’ He admitted that the insurance had been allowed to lapse, and no other insurance taken out, that the building was in bad repair, and no school had been held in it for 18 months, as already stated, but said the board had not taken any official action in abandoning the site for school purposes, and, over objection, that he had in mind, when they quit holding school in/ that building and consolidated the schools in the new building, that they might use it again, “but the board never had any definite plan for using the Steel building. We had no use for it, and that is why we did not keep it up. We conceived the idea of using the building later. We moved all the school supplies to the negro school. We thought several months thereafter we might have some use for it.”

Another director stated that they intended to keep the Steel building for church purposes, if it was needed, but that he never knew of any church services being held there, and that the school board had not authorized or permitted the holding of any; that no effort had been made to use the building since January, 1925, and the board had no idea of using the building in January, 1927.

The court refused to give a peremptory instruction in appellant’s favor, and gave and refused other instructions that were objected to.

Appellant contends that the court erred in not directing the verdict in his favor, and, after a careful examination of the testimony, we have concluded that the contention must be sustained. It was not necessary to show official action by the board declaring the property abandoned to prove abandonment. This was done by the undisputed evidence showing the school was moved out, and no longer held on the premises after the district was consolidated, and the new and more commodious and centrally located schoolhouse was erected, and all of the school apparatus and equipment removed from this building to the negro .school. The insurance policy too was allowed .to lapse, and the house left so long unoccupied as to fall into such disrepair that it could not be used f.or any purpose without expensive repairs being made; nor was objection from the school board made upon appellant’s giving notice that he would resume possession because of abandonment of the premises until more than six months after he had done so and boarded up- the dilapidated old building, and finally completed the improvements thereon.

It is undisputed that he took possession of the building after he had notified the school board that he would do so, claiming it to have been abandoned, and a reversion thereof to himself under the express terms of his grant. This completed a vestiture of the title in him which cannot have been divested or affected by notice from a member of the school board six months thereafter, when the extensive repairs were- about completed, that he might have trouble with the board for resuming possession. St. L. S. W. Ry. Co. v. Curtis, 113 Ark. 92, 167 S. W. 489; Terry v. Taylor, 143 Ark. 209, 229 S. W. 42.

The court does not therefore find it necessary to pass upon any other of the questions raised, and does not do so. For the error in refusing to give the peremptory instruction the judgment must be reversed, and, the case appearing to have been fully developed, will be remanded with directions to enter .judgment in favor of appellant, and dismiss appellee’s cause of action. It is so ordered.

Mehafey, J., disqualified, and not participating.'


source: Caselaw Access Project

author: Mehafey, J.

license: Public Domain

text:
    Moore v. Wilson.
    Opinion delivered October 7, 1929.

      Berry, Berry S Berry, for appellant.

      J. G. Brookfield, for appellee.
   Mehafey, J.

The appellees brought suit in the Crittenden Circuit Court against the appellant, James Moore, and Mrs. J. 'C. Moore, for damages which they alleged were caused by the negligence of James Moore in driving his automobile, and running into and striking the automobile in which the plaintiffs were riding.

It is unnecessary to set out the evidence, because the record fails to show that James Moore, a minor, was served with process. The record shows that complaint wias filed and summons issued and directed to the sheriff, but it does not show that the appellant had been served with process. ■ ■

‘ í There is no recital in the judgment of the court or in the record showing that the appellant had been duly served with process in the last action instituted against him, No. 72. Taking all the recitals of the record together, there is no showing that the appellant was ever properly served with process in the last action instituted against him. The court therefore erred in allowing this cause to be consolidated with action No. 40 and in proceeding to the trial olf the consolidated causes without the presence of the minor defendant. Under the showing made in the answer of the guardian ad litem in action No. 72, in which he expressly reserved ‘to the defendant, Jack Ross, all his rights herein of reasonable notice and opportunity to defend,’ we are convinced that the trial court should have granted the motion of the guardian ad litem for a continuance of the cause. There is nothing in the record to show proper service on the minor defendant, Jack Ross.” Ross v. Stroud, 173 Ark. 66, 291 S. W. 996.

“An infant oan neither acknowledge nor waive the regular service of process upon him, though in some instances a regular service of summons slightly irregular in form was held to he a substantial compliance with the statute, and sufficient to give jurisdiction. * * * It is held in most of the cases that the lack of service of the infant is a fatal, because jurisdictional, defect, and cannot be cured by the appointment of a guardian ad litem and his making actual defense for the infant; and this ruling seems consistent with the lack of power on the part of the guardian to bind the infant by his admissions or stipulations. A few courts have held, however, that even a lack of legal service does not render the judgment void, if the infant appeared, a guardian was appointed, and a proper defense was in fact made. ” 14 R. C. L. 284.

“It seems that the minor joined in the application here (for an appeal, but, if not sui juris, he cannot be bound by that, and probably his name was included pro forma. The decrees must be reversed and the cause remanded to give the defendant, ftobt. L., day in court. He must be served by some appropriate mode, have a guardian ad litem appointed after service, who must put in an answer, denying all material allegations of the bill.” Freeman v. Russell, 40 Ark. 56.

“But there is nothing in the record to show that there was any service of summons upon these minor defendants. This being a direct attack upon the .judgment by appeal, the same presumptions in favor of the regularity of the judgment do not arise as in a collateral attack. If the record does not recite or show service upon the minor defendants, we must take it that no summons was issued to or served upon them. The court had no right to appoint a guardian ad litem until after service of summons upon the infant defendants; and the guardian ad litem had no right to enter their appearance by filing an answer in the absence of such service.” Gannon v. Moore, 83 Ark. 196, 104 S. W. 139.

“The rights of infants can in no case be judicially affected, except upon proper issues and proof, and upon statutory service, where they are defendants, and ought not to be upon their own application by next friend or guardian, without reference to the master or the chancellor’s own careful examination, to ascertain whether or not the thing asked be really for the benefit of the infant.” Evans v. Davies, 39 Ark. 235; Haley v. Taylor, 39 Ark. 104.

“No judgment should be rendered affecting the interests of an infant until after defense by guardian, and this defense should not be a mere perfunctory and forma] one, but real and earnest. He should put in issue, and require proof of, every material, allegation of a complaint prejudicial to the infant, whether it be true or not. He is not required to verify the answer, and can make no concessions on his own knowledge. He must •put and keep the plaintiff at arm’s length.” Pinchback v. Graves, 42 Ark. 222.

A guardian ad litem was appointed by the court to defend in this case, and specifically denied every material allegation, and did all that he was required under the law to do or'that could be expected of him. In fact, there is no doubt but that a genuine defense was made. But the statute authorizing the appointment of a guardian ad litem, among other things, provides: “The appointment cannot be made until after the service of summons in the action.” Section 1114, Crawford & Moses’ Digest.

It will be observed that the statute says “until after service.” The only way we can tell whether service was had is by the record, and there is no recital in the record showing service of summons in this case. 31 C. J. 1130.

It may be that summons was served on the appellant. It probably was, but there is no such recital in the record, and the court cannot assume that summons was served because the record shows that one was issued. In fact, no guardian ad litem can be appointed under our statute until the summons has been served. However, this court has decided that, since the purpose of the appointment is to have a real defense made for the infants, although the guardian ad litem was appointed before service had on the infant, the case will not be reversed where it appeared that the guardian filed a sufficient answer after service on the infants. Bostleman v. Hinkle, 152 Ark. 628, 239 S. W. 30.

It is next contended by the appellant that infants are not liable for torts in cases of this character. It has been many times held by this court, as well as other courts, that a minor is liable for injuries caused by his negligence. 31 C. J. 1093.

“It is well established that an infant is liable for his torts in the same manner as an adult. Hence infancy is no defense to an action ex delicto for assault, etc. Neither will infancy constitute a valid defense to an action for libel, for slander, for negligence, for seduction, or for trespass.” 22 Cyc. 618; 31 C. J. 1090; Lytle v. State, 17 Ark. 608; Watson v. Billings, 38 Ark. 281; Worthen v. Ratcliff, 42 Ark. 330.

Appellant, however, contends that an infant cannot be liable for punitive damages, and quotes from 8 R. C. L. 595, as follows: “Exemplary damages are not recoverable against infants or persons of unsound mind, even though such persons are liable in compensatory damages for their torts.”

But in a note to the above section we are referred to “Infants”' in 14 R. C. L., and we find the rule there stated as follows:

“As the general rule applicable to contracts is that the infant is not liable thereon, so the general rule in the law of torts is that he is liable. Liability in a civil action is imposed not as a mode of punishment, but of compensation. If property has been destroyed or other loss occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than on that of a guiltless third person, and that without reference to the question of moral guilt. Consequently, for every tortious act of violence or other pure tort, the infant tort-feasor is liable in a civil action to the injured person.” 14 R. C. L. 259, § 36.

And while infants are not usually liable for punitive damages, it is because they are not criminally responsible. But an intelligent young' man the age of this young man may be responsible for punitive damages the same as an adult person.

A majority of the court are of the opinion that the evidence is insufficient to justify a verdict for punitive damages. The law as to the sufficiency of the evidence on the question of punitive damages is, however, well settled by the decisions of this court.

“We think error was committed in submitting the question of liability for punitive damages, and the judgment therefor must be set aside. The testimony warranted a finding of the grossest negligence; but this court is thoroughly committed to the doctrine that negligence alone, however gross, is not sufficient to justify the award of punitive damages.” St. L. S. W. R. Co. v. Owings, 135 Ark. 56, 204 S. W. 1146; St. L. I. M. & S. R. Co. v. Dysart, 89 Ark. 261, 116 S. W. 224.

The court directed a verdict in favor of Mrs. Coates, and from that there is no appeal. Therefore Mrs. Coates is no long’er a party to the suit.

Because the record does not show that the minor was served, the judgment is reversed, and the causes remanded for a new trial.


author: Mehaeey, J.

text:
    Alger v. Beasley.
    Opinion delivered October 7, 1929.

      Duke Frederick, for appellant.

      G. H. Herndon, for appellee.
   Mehaeey, J.

The appellees, on the 30th day of July, 1928, filed in the. Montgomery Chancery Court a complaint, and summons was issued, and on the 31st of July served on the defendants. The complaint is as follows: Comes the plaintiffs, H. Y. Beasley, trustee for P. J. Ahearn, Robert Buchanan, H. Y. Beasley, Mrs. Irene Offenhauser and W. L. Hickman et al., and W. Spear Hariris, and respectfully state: That all of the above plaintiffs, except the said W. Spear Harris, are the owners of the following claims in Montgomery and Polk counties, Arkansas: Nos. 1 and 2 east, and Nos. 1 to 8, inclusive, in sections 8-9-10, township 4 south, range 27 west, and also one placer claim No. 1 east on south; that all work has been done to perfect patents therefor. Also one upright boiler and piping; cars and tracks for carrying ores; pipe wrenches and cables; buildings located thereon; also six tunnels, and other property. That on June 1, 1927, .the last-mentioned plaintiffs leased said property to said W. Spear Harris for a period of ten years; that said W. Spear Harris entered into possession thereof and went to work; that the defendants, Alger, whose given name is unknown to plaintiffs, and Reinhart, whose given name is also unknown to plaintiffs, came on to said lands, without plaintiffs’ permission, placed notices thereon, took possession of the buildings located thereon, and have destroyed plaintiffs’ railroad track, ordered plaintiff W. Spear Harris off said property, and cussed and used abusive language about said W. Spear Harris; that said defendants, Alger and Rein-hart, had no claim or right to said lands, premises or property; that said defendants are threatening and about to destroy other property, and are- irresponsible, and a judgment against them would be of no value. Plaintiffs have no adequate remedy at law.

“Wherefore plaintiffs pray that said defendants be forever enjoined from trespassing thereon or from interfering with plaintiffs ’ claim thereto, and for other relief, including all damages sustained by plaintiffs.’’

At the same time that summons was served a notice was served on appellants that an application would be made for an injunction .on August 6.

The appellants appeared on August 6, but did not file any answer or any pleadings except a motion to require appellees to give bond. This application and motion was heard before the circuit judge, and the injunction issued returnable to the chancery court. Bond was filed on August 13. On August 15 defendants were cited to appear in court for violating the order of the court. On September 22 the defendants were given ten days in which to file answer, but they did not file any answer or any pleadings. The regular term of the chancery court began in Montgomery County at Mt. Ida on the 5th of November. The defendants not having answered, the cause was submitted upon the pleadings, oral testimony and proof of service of summons. The court gave judgment against the appellants for $210.25 damages, and enjoined the appellants and their agents, employees and servants from going on the premises except by consent of plaintiffs.

Thereafter the appellants filed a motion to set aside the decree, and allege, among other things, that they had no knowledge that court would convene on the 5th of November, and were not advised that the cause was set for trial or would be subject to trial, and they had no knowledge tfiat a judgment had been rendered until an execution had been issued and placed in the hands of the sheriff. Appellants alleged that they resided at Mena, Polk County, and had engaged the services of W. L. Parker as their attorney, and understood that he would file an answer and advise them when court would convene; that he failed to file such answer, and appellants did not know of such failure until after judgment had been rendered and execution issued. They alleged that they had no knowledge of the order of the court giving them 10 days to answer, and believed their attorney was taking such steps as were necessary to protect their rights. They further alleged that they were each seriously ill and unable to attend court during the month of September, and also from the 15th of August to the 10th of October. They also alleged that the petition for injunction did not contain any allegations of damages to plaintiffs, and that the appellants therefore had no notice of any kind that a money judgment for damages against them was being sought. They deny that they violated the injunction, or that their employees did with their knowledge or consent. They alleged that they immediately, after the service of the injunction, removed from the property and have remained away ever since, and deny that they destroyed the railroad track, or that the appellees suffered any damage because of anything they did. They also alleged that the judgment for damages was rendered without any complaint being filed, and was rendered prematurely, and before the expiration of 90 days after the pleadings had been completed. Appellants alleged they had a meritorious defense, and set up in their motion their defense.

The chancery court overruled the motion, and defendants excepted, and prayed an appeal to the Supreme Court, which was granted.

Appellants in their brief state that the only questions to be determined are, first, whether or not sufficient facts are alleged in the complaint to constitute a cause of action entitling the plaintiffs to injunetiye relief; second, whether or not the allegations of the complaint are sufficient to warrant a default judgment or decree for damages.

It will be observed that the complaint alleges that appellants came on to said lands, placed notices thereon, took possession of the buildings located thereon, and have destroyed the railroad track, and ordered appellees off said property. It further alleged that appellants were threatening and about to destroy other property, and that they are irresponsible, and a judgment against them would be of no value.

On demurrer or default the complaint was sufficient not only to authorize the court to take proof on the question of the injunction, but also as to damages. The complaint states specifically that a judgment against appellant would be of no value. That means, of course, that they are insolvent, and this allegation is not denied.

The complaint also alleged that they had already destroyed the railroad track, and were threatening and about to destroy other property. These were sufficient allegations to permit evidence to be introduced on both allegations. And, since the evidence taken by the court is not brought up in the record, it will be presumed that there was sufficient evidence to -sustain both allegations.

This court has said recently: “It is true that a complaint must state something more than mere conclusions, but the fraud charged by plaintiff, we think, is a sufficient statement of the facts constituting the fraud to justify the court in overruling the demurrer. This court has frequently held that, in testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it; and that, where-facts are defectively stated, the remedy is by motion to make more definite and certain, and not by demurrer. It is also true that, while the Code forbids the allegations of mere conclusions of law, its spirit and object require that the facts constituting the cause of action shall be stated according to their legal effect. The rule requires the statement of fact, and not the evidence of fact.” Driesbach v. Beckham, 178 Ark. 816, 12 S. W. (2d) Series 408. See also Ellis v. First National Bank, 163 Ark. 471, 260 S. W. 714; Cox v. Smith, 93 Ark. 371, 125 S. W. 437, 137 Am. St. Rep. 89; Bruce v. Benedict, 31 Ark. 301; Turner v. Tapscott, 30 Ark. 312; Farrell v. Elkins, 159 Ark. 31, 251 S. W. 380.

The court also said in the case of Driesbach v. Beckham: “The allegations of the bill, which are confessed by the demurrer, control in this case. 'Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. ’ ’

Tested by these rules, the complaint was sufficient both for an injunction, and for damages for the destruction of property. Complaint was filed on the 30th of July, service was had on the 31st of July, and in September the appellants were given ten days to answer, and, as we have already said, no pleadings were ever filed.

Court met at Mt. Ida on the 5th of November. This was the beginning of the regular term. Appellants say that the case was not properly for trial until 90 days after the pleadings were made up, but the pleadings were not made up. No pleadings were ever filed by appellants. Section 1285 of Crawford & Moses’ Digest provides: “Judgment by default shall be rendered by the court on any day of any regular or adjourned session in any case where the defense has not been filed within the time allowed by §§ 1208 and 1209, provided that the court may for good cause allow further time for filing a defense.”

Section 1208 of Crawford & Moses’ Digest provides that “the defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session after service: (1) Where the summons has been served twenty days in any county in the State; (2) where the summons has been served thirty days outside of the State; (3) in the case of constructive service,” etc.

There is no complaint about the service in this case, and there is no dispute about the fact that the appellants were given ten days to answer, and that they never filed any answer. To be sure, they say that they did not know this, but their attorney did.

“It is the general rule that an attorney, acting within the scope of his authority, represents his client, .and his acts of omission as well as of commission are to be regarded as the acts of the person he represents, and therefore his neglect is equivalent to the neglect of the client himself. In accordance with this view, courts of equity will not usually relieve a party against the fault or negligence of his attorney, and the rule is frequently applied in the case of application few relief against judgments, thoug'h in some States the negligence or mistake of an attorney is not imputable to his client, and does not debar him from obtaining- relief from a judgment due thereto. So also it has been held that the negligence of an attorney in failing to bring suit within the statutory period is the neglect of the client, and therefore that such negligence is no excuse for the failure to bring the suit in time.” 2 R. C. L. 965.

The above rule is the rule in this State. The attorney did not testify, and, so far as this court knows, there is no reason why he should not have filed the answer within the time given by the court.

The case was heard by the chancery court on Aral testimony which is not brought into the record, and this court will presume that the chancery court had evidence sufficient to justify the order made.

The decree of the chancery court is affirmed.


author: M cHaney, J.

text:
    Ellis & Lewis v. Warner.
    Opinion delivered October 7, 1929.

      Chas. A. Walls, for appellant.

      Trimble, Trimble & McCrary and Reed $ Beard, for appellee.
   M cHaney, J.

Ellis & Lewis, a partnership composed of A. O. Ellis and C. S. Lewis, appellants, were contractors engag-ed in tbe construction of a rock road from Lonoke, in Lonoke County, to Beebe, in White County. They employed about thirty persons with trucks for the purpose of hauling crushed rock or gravel from Lonoke to be distributed along the public highway as and where directed by appellants. These haulers furnished their own trucks, paid all expenses of their operation, worked as and when they desired, and were paid twenty cents per ton per mile haul. Among those so employed was one Jack 'Cooper, who, in September, 1928, was seventeen years .of age. On .September 27, 1928, while driving his empty truck south back to Lonoke for another load, and while driving through loose rock or gravel on said highway at a speed of about thirty miles per hour, said Cooper ran his truck against appellee, causing serious bodily injuries. This suit was brought against said Cooper and appellants to recover damages for said injuries, but before the trial appellee dismissed as to Cooper. The trial proceeded against appellants, resulting in a verdict and judgment against them for the sum of $2,000.

The first question we are called upon to decide is whether, under the facts, the court should have told the jury that Cooper was an independent contractor, as a matter of law, and therefore that appellants were not liable for his negligent acts.

“An independent contractor,” says Judge Elliott, “may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of his work.” 3 Elliott on Railroads, 3d ed., § 1407, page 70. This definition was quoted with approval in St. L. I. M. & So. Ry. Co. v. Gillihan, 77 Ark. 117, 92 S. W. 793, and in J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117, 205 S. W. 302. Continuing the quotation from the above section, the learned author says: “Generally, when an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the' company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor, and, in order that the company shall be liable in such a ease', it must appear that it either exercised, or reserved the right to exercise, control over the work, or had the power to choose, direct and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control aind direction of the work.”

In 14 R. C. L.,page 75, it is said that: “Cartmen, truckmen and draymen are generally held to be independent contractors, though the contrary view is sometimes taken of their employments where their employers exercise considerable control over them.” A case cited to support this statement of the law is Burns v. Michigan Paint Co., 152 Mich. 613, 116 N. W. 182, 16 L. R. A. N. S. 826, where ‘ ‘ a licensed expressman, who delivered goods for defendant for $15 a week, furnishing a horse and wagon, not being bound to do the w¡ork personally, being free to do similar work for others, and placing defendant’s sign on his wagon when working for it, was an independent contractor, and not defendant’s employee, and hence defendant is not liable for injury to a third person caused by his negligence.”

A number of our own cases have been cited by appellant’s counsel, which we have carefully considered. We have reached the conclusion that the trial court did not err in refusing to instruct a verdict for appellants, and in refusing to declare as a matter of law that Cooper was an independent contractor. But we have also reached the conclusion that the court did err in refusing to submit this question to the jury.

In the case of Wheeler v. Fitzpatrick, supra, the court quoted with approval from Overhouser v. American Cereal Co., 128 Iowa 580, 105 N. W. 113, the following:

“The expression ‘an independent contractor’, within the popular understanding which the words import, is wholly descriptive. The expression serves merely to point out one of a class, and when so used it may be conceded that no words of definition are needed. But in the law of negligence the expression is used, not merely in a descriptive sense, but as well to designate a relationship, in the presence of which, when established, the law undertakes to prescribe distinctive rights and liabilities. It is for the court then as a matter of law to define the relationship, and for the jury to make finding of the fact as to its existence.”

So here the court should have declared the law defining the relationship, and have left the question of its existence to the jury. Even though the jury should find that this relationship did exist, still appellant might he held liable, if the jury should further find that appellants were negligent in employing Cooper as an independent contractor to do this work. He was only seventeen years old, was driving rapidly in loose rock over an important highway, which appellants knew — one much used by the public, and which the public had the right to use. The jury would or should take into consideration all the facts and circumstances in the case in determining this question.

Other questions are argued in the brief of appellants, including the improper questions asked the physicians as to who paid his ¡bill, and whether the insurance company paid him. We think they were improper, and should not have been asked. It was ■sufficient for the jury to know that the bill had been paid, and that it was not an item of expense incurred and paid by appellee. The record shows, however, that the court sustained counsel’s objection to the question regarding payment by the insurance company, and instructed the jury not to consider it. No objection was made to the previous questions, and we would not reverse the case on this account. Nor do we think appellee was guilty of contributory negligence as a matter of law, but that it was a question for the jury. The court properly submitted this question.

For the error indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.


author: McHaney, J.

text:
    McCullough v. East Arkansas Lumber Company.
    Opinion delivered October 7, 1929.

      Cimmingham ■<& Cutmvmgham, for appellant.

      Smith <& Blackford and G. M. Gibson, for appellee.
   McHaney, J.

On October 27, 1925, G. H. Stanage was granted a judgment against E. E. and Fairbelle Mitchell in, the Lawrence Chancery Court for $729.03, and a decree foreclosing a mechanic’s lien on two houses and one acre of land surrounding each house located on the north half northeast quarter section 1, township 15 north, range 1 west, lying south of Village Creek. At the foreclosure sale, January 9, 1926, Stanage became the purchaser of the houses and two acres of land for a sum less than the amount of the judgment, leaving a deficiency of $323.90, with interest from that date at 6 per cent. On March 5, 1926, the Mitchells executed and delivered to Pender and Cunningham two notes amounting to $750, which were indorsed by appellant, who, to secure him on this indorsement, took a mortgage from the Mitchells on the land above described, also lot 1, block 18, town of Minturn, and other lands. The Mitchells defaulted in the payment of said notes, and appellant paid same, as also some other indebtedness of the Mitchells for which he was secondarily liable. On October 8, 1926, appellee obtained judgment in the circuit court against the Mitch-ells for $829.72.

This suit was instituted by Sharum-Benningfield Company against the Mitchells, appellants, appellee Stan-age, and others, to foreclose a mortgage given it by the Mitchell's, in which all parties having or claiming liens were made defendants. Appellant filed an answer and cross-complaint, setting up his mortgage as above stated, and made all others cross-defendants. He claimed a prior lien to all parties other than Stanage, who filed answer and cross-complaint claiming a prior lien to all parties by reason of his judgment.

On July 21,1927, Stanage sold and conveyed to Gage & Company the two acres of land and houses he had acquired under the foreclosure sale. Either on May 23 or July 27, 1927, an execution was issued by the clerk on the deficiency judgment of Stanage in the sum of $354, delivered to the sheriff, who levied on the two pieces of property above described, advertised it for sale, and on August 27, 1927, sold it to Stanage for the amount of his judgment, interest and costs, for which a certificate of purchase was issued by the sheriff • to Stanage. On August 30, 1928, after the period of redemption had expired, Stanage sold and assigned to appellee his certificate of purchase, and on the same day the sheriff executed and delivered to appellee his deed to said land. Thereafter appellee filed its answer and cross-complaint against appellant and all others claiming liens, setting up these facts. It further alleged that, by error of counsel for appellant, the execution issued on the Stanage judgment recited the judgment was obtained in the circuit instead of chancery court, and that it was obtained on May 23, 1927, instead of October 27, 1925,- and that like errors were made in the certificate of purchase and deed, as also error in the description of the land in said deed. The prayer was for reformation, and that the sale be confirmed, and quieted in it.

After hearing all the testimony, including nearly all the lawyers on both sides, the court found for appellee, and entered a decree in accordance with the prayer of its cross-complaint.

Appellant says there was no valid sale to Stanage, and that appellee acquired nothing by reason of the assignment of the certificate of purchase from him and the sheriff’s deed. He admits that “Stanage had a valid decree of the chancery court rendered October '27, 1925, and upon which there was a balance of some $354 with interest, unpaid. That the clerk of the chancery court issued an execution on the 23d day of May, 1927, and that an advertisement was published August 11, 18 and 25, 1927, advertising the property in controversy in this suit for sale on August 27, 1927, under the execution above referred to.” Appellant also concedes the rule that the sheriff’s deed was prima facie evidence of a valid sale, which is correct, and, when this fact is considered in connection with all the other evidence, we are unable to say that the finding of the court that the sale was valid is against the preponderance of the evidence. "We do not set this .evidence out, as we can see no useful purpose to be served, and, while we are left in some uncertainty regarding the sale, we find that the evidence supports the court’s decree.

But appellant says, even if the .sale was made under the execution exhibited, it was void for ,the reason the execution was dated May 23, 1927, and the sale held August 27, 1927, which was more than thirty days after the return day of the execution. Here appellant assumes as a fact that the execution was dated May 23. In this we agree with the trial court that he is in error. An execution appears in the transcript dated July 27, 1927, which we think correctly reflects the true date thereof. It is true the clerk testified that his record showed the execution to have been issued May 23, and the notice of sale recites such to be .the fact, yet there are so many facts and circumstances which contradict this evidence, including the errors of the date of the judgment and the court in which it was secured, we think the 'chancery court was justified in disregarding it' and in holding as he did against the appellant.

Other questions are argued which we have considered, but do not discuss. "We find no error, and the decree is accordingly affirmed.


author: MoHanby, J.

text:
    Fitzpatrick v. Hankins.
    Opinion delivered October 7, 1929.

      J. H. Carmichael, Jr., for appellant.

      C. V. Holloway and Morris & Barron, for appellee.
   MoHanby, J.

At Paris, Texas, on March 13, 1922, appellee and his brother, R. L. Hankins, executed and delivered to appellant their promissory note for $2,500 for money borrowed, payable one year after date at 8 per cent., and to secure same gave appellant! a mortgage on their undivided two-thirds interest in certain filling station equipment, they being engaged as wholesalers in the distribution of oil and gas and each owning a one-third interest in the business. In February, 1925, the note not having been paid, appellant, secured judgment against R. L. Hankins for the amount of the note and interest and a decree foreclosing the mortgaged property. The property was sold, the sale price credited on the note, and there was left a balance of $800 remaining unpaid. This suit was instituted by appellant against appellee to recover said amount as either joint maker or surety on said note.

Appellee denied that he was indebted to appellant in any sum, although he admitted the execution and delivery of the note and mortgage. He further alleged by way of defense that, by agreement with appellant, a short time after execution and delivery of said note and mortgage, he turned over to R. L. Hankins all his interest and equity in the mortgaged property on condition that he was to be released from all further liability on said note. On a trial to a jury there was a verdict and judgment for appellee.

Appellee testified, in accordance with his answer, that, sometime after the execution and delivery of said note and mortgage, he had an agreement with appellant whereby he should .turn over to R. L. Hankins for the benefit of appellant all his equity in the mortgaged property and would be released from all further liability thereon; that the mortgaged property was worth $7,500 which would make his one-third interest in the property of the value of $2,500. This would give appellee an equity in the one-third interest in the property of $1,250. He further says that in pursuance of this agreement, he surrendered his equity in the property to R. L. Hankins, moved from thence to England, Arkansas, in 1922 and heard no more .about the note until 1926, about three years after the note was due, when appellant's counsel wrote him demanding payment. Appellant denied that he had any such agreement with appellee, but a jury has determined this issue against him. Appellant says that there was no consideration to support such agreement, and no accord and satisfaction, and that the court should have therefore (given his request for a peremptory instruction.

This court, in Feldman v. Fox, 112 Ark. 223, 164 S. W. 766, stated the correct rule as follows: “If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter of the original one.” Citing Thompson v. Robinson, 33 Ark. 44; 1 Brandt on Suretyship and Guaranty, § 387; 1 Page on Contracts, § 312. The Feldman cáse was distinguished in Johnson v. Aylor, 129 Ark. 82, 195 S. W. 4, in Easley v. Vaughn, 170 Ark. 887, 281 S. W. 670, and in Nakdimen v. First National Bank, 177 Ark. 303, 6 S. W. (2d) 505.

Under the rule announced we cannot say as a matter of law that there was no consideration for the new agreement testified to by appellee. The court submitted this question to the jury in the following instruction:

“The defendant admits signing the note in controversy, but contends that he was released from same by plaintiff by turning over to his brother, under the directions of the plaintiff, the property that was put up by him and his brother as security for the loan. Now, before the defendant can be released on this note, he must have had this agreement with the plaintiff, and further, it must have been for a valuable consideration. The burden is upon the defendant to establish this fact.”

Appellant might have thought that it would be to his advantage to have appellee’s equity in the mortgaged property in R. L. Hankins’ control. True, he had the same security for his debt after the agreement testified to by appellee as he had before, but by consolidating the two undivided interests in one person, especially when appellee was removing from the State, he might have considered it to his advantage to release appellee. Nor can we say that appellee surrendered nothing by reason of the agreement, as the proof shows that he had a valuable equity in his undivided one-third interest in the property over and above one-half of the indebtedness. The court therefore correctly submitted this question to the jury, and did not err in refusing to give a peremptory instruction as requested.

Appellant also argues that the court incorrectly instructed the jury. The court first told the jury that: “If you find the defendant turned over this property to his brother, this will be sufficient consideration, and you should find for the defendant.” However, the record shows that the court withdrew this instruction from the jury, and gave the one hereinabove set out. We do not think that the jury could have been -misled by this action of the court, arid, if appellant was not satisfied with the instruction as finally given, for the reason that it did not define what would constitute a sufficient consideration, he should have submitted to the court a correct declaration on the subject, which was not done.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Teal v. Thompson.
    Opinion delivered October 7, 1929.

      Paul Grumpier, for appellant.

      Henry Stevens, for appellee.
   Butler, J.

Plaintiff, Willie Teal, appellant here, filed in the Columbia Chancery Court, on the 5th day of April, 1927, a complaint in which he alleged that he was the owner of certain promissory notes given for the purchase money of forty acres of land in Columbia County, and that the deed executed retained a vendor’s lien to secure their payment, the defendant, Needie Thompson, being the maker of them, and the grantee in the deed. The notes were described in the complaint, their dates given, when due, with the allegation that plaintiff had paid the same at the request of the defendant, Needie Thompson. Plaintiff also alleged that in 1921 he had advanced to defendant on three separate occasions money to be applied to the payment by her of her purchase money notes, which sums amounted to $165.70, and that defendant had agreed to apply this to the payment of the notes. He also alleged that he had paid the taxes on the land. Plaintiff prayed tfor judgment against the defendant for the sums loaned the defendant, and for the amounts expended in the payment of the notes and for the taxes paid, in a total sum of $461.01, with interest, and that he be declared to have a lien upon the land to secure the payment of said judgment et cetera.

The defendant answered, denying that plaintiff had paid the notes and that he had paid the same at her request; denied that she had borrowed any money from plaintiff in 1921; denied that he had paid any taxes on the land, or that he had done so at her request; admitted the purchase of the land and the execution of the deed with the notes for the purchase money recited therein, and that a vendor’s lien was retained for the payment thereof. Defendant admitted that she had not paid the purchase money notes due November 1, 1924, to and including November 1, 1928, the same being five notes which plaintiff alleged that he had paid at defendant’s request. 'Further answering, defendant pleaded in bar for the debt made in 1921 the statute of limitations.

A motion was filed by the defendant to make the complaint more specific, but no action seems to have been taken by the court thereon. Proof was taken by the parties, and the cause submitted to the court for its decision. After the submission, and before the court had made its decision, plaintiff became aware that on March 20, 1928, Needie Thompson executed to W. B. Stevens a deed of trust to secure payment of a small indebtedness due Henry Stevens, and that she had executed a deed of trust to Will Rushton, as trustee for Walter Kearney, to secure an indebtedness due by Needie Thompson to Walter Kearney in the sum of $200, and asked that the submission be set aside and that his motion be treated as an amendment to his complaint, and that the said Stevens and Kearney be made parties defendant, and that the canse be continued, et cetera.

The motion to withdraw submission and to make 'Stevens and Kearney parties was denied, and a decree was rendered dismissing the complaint for want of equity.

It appears that the parties to this case are both negroes, Needie Thompson, the defendant, being a resident of Magnolia, Arkansas, and Willie Teal, the plaintiff, living at Homer, Louisiana, about twenty-five miles from Magnolia. These persons had become acquainted about eight years previous to March 9, 1928, the date upon which the deposition of Willie Teal was taken. The testimony adduced on the part of the plaintiff was to the effect that in 1921 he loaned Needie Thompson $165 at different times, which sums she was to apply to the payment of the purchase money notes, and that after this she asked him to pay the notes remaining, which he did. The first nóte he paid was for $56, with interest at eight per cent, from November 1, 1924, until paid. This note he paid on November 5, 1924, and was indorsed on the back, “Transferred to Willie Teal without recourse to me, November 4, 1925. (Signed) 'Calvin R. Mower.” ((Mower was the grantor in the deed to Needie Thompson). Plaintiff also paid the note due November 1,1925, amounting to $52.80, and this note was indorsed, “Transferred to Willie Teal without recourse,” and bore date of May 9, and was signed, ‘ ‘ Calvin R. Mower Estate, by Clarendon Mower, attorney in fact for the executrix.” A note for $49.60, due November 1, 1926, one for $46.40, due November 1,1927, and one for $43.20, due November 1, 1928, all bore indorsements on the back, * ‘ Transferred to Willie Teal, without recourse,” dated November 4, 1925, .and signed by Calvin R. Mower, the last'three notes being evidently paid before their maturity. These notes were introduced and filed as exhibits. On several occasions plaintiff demanded payment of these notes, visiting the defendant for that purpose. Plaintiff paid the taxes for the year 1925, in the sum of $4.44, for the year 1926 in the sum of $4.02, for the year 1927 in the sum of $3.95, the total amount for money advanced to plaintiff, money paid on the notes and taxes being $436.71.

The banker who handled these notes testified that they were sent by Calvin R. Mower to the bank for collection, and that with the notes was sent a copy of a letter written defendant, notifying her of the deposit of the note with the bank for collection; that he had had conversations with the defendant regarding the notes and their payment, and that she had told him that plaintiff had paid part of the notes for her; that he took care of the notes for her, and that he had advanced her money to pay off some of the notes. She made no statement as to the number of the notes that plaintiff had paid.

The defendant testified, admitting that she had borrowed money from the plaintiff, as néarly as she could remember, to an amount something like $105, and admitted that a part of the money borrowed was to be used in paying off some of the purchase money notes; that she did take some of the money thus obtained, and with her own paid some of the notes which were then due. She also testified that she had never requested plaintiff to pay the last five notes that were mentioned in his testimony and in his complaint, and that she knew nothing about his paying them; that the .conversation she had with the hanker was that she called on him for her notes, and was told that Willie Teal had paid them; that she asked the hanker to telephone to Homer to Willie Teal and direct him to send the notes back — that she conld take care of them — and that the banker replied that if Willie Teal wanted to pay them off she ought not to worry about it. Defendant also testified that she had never authorized plaintiff to pay any taxes for her; that she had endeavored to make payment herself, but was informed by the collector that the taxes were already paid. She denied that Mr. Mower had ever written her any letters or that plaintiff had ever requested her to repay him the money expended by him in satisfaction of the notes, but that he demanded that she make him a deed to the land.

This was all of the material testimony in the case.

The appellee insists that the complaint was not sufficient to entitle appellant to a declaration olf a lien in his favor on the five notes mentioned in his complaint and testimony, not having alleged ownership of the notes in himself or that the vendor’s lien retained in the deed and notes was assigned to him. Courts regard substance rather than form, and we are of the opinion that the complaint, taken in connection with the testimony of plaintiff, introduced without objection, fully and fairly presented the issues to the trial court, and neither it nor the defendant could have been deceived in any particular.

The real question in the case, as we see it, is whether or not Willie Teal was á mere volunteer in these transactions, or whether he was acting in behalf of the defendant. Willie Teal and the defendant were both interested parties. One affirmed, and the other denied. Therefore the chancellor might have considered that their testimony was evenly balanced. But there is other testimony in the case tending to show that Willie Teal paid the notes and retained them in his possession, that he secured the in: dorsements upon them, and these facts support him in his testimony; and he is further corroborated by the testimony of the hanker to the effect that defendant told him that "Willie Teal would pay the notes for Needie Thompson. We think this is sufficient to outweigh the bare denials of defendant, and that the finding of the chancellor was ag’ainst the preponderance of the testimony.

The point is made that the indorsements were made at a different time from the date of payment, and that the purported assignments were not sufficiently proved. This is immaterial. The preponderance of the evidence warrants the conclusion that plaintiff paid off the notes at the request of defendant, and his conduct in retaining the notes in his possession manifested an intention to keep the lien alive for his protection. He was therefore entitled to be subrogated to the lien of the vendor, and was entitled to the relief prayed. Rodman v. Sanders, 44 Ark. 504. The chancellor should have set aside the submission and made the subsequent mortgagees parties to the proceeding. The deeds of trust under which they claimed, having been executed and filed for record pending this case, are inferior to the lien of plaintiff.

The decree of the chancellor is reversed for further proceedings in conformity with the principles of equity, and not inconsistent with this opinion.


text:
    Fox v. Pinson.
    Opinion delivered October 7, 1929.

      Powell, Smead <& Knox and Coulter <& Coulter, for appellant.

      Marsh, McKay & Marlin and Joiner <& Stevens, for appellee.
   Butler, J.

A decree was rendered in this case by the chancery court by which judgment was rendered on two mortgages given ¡by Tetta C. Fox to J. W. Pinson. The mortgages were foreclosed, the property described therein ordered sold, and a commissioner appointed to make said sale. An appeal was prosecuted to this court from the judgment and decree, without the same having been superseded. Pending the appeal in this court, the commissioner appointed by the chancery court proceeded to carry out the decree by advertising the property for sale on a stated day, and on the day fixed in the decree and notices the property was offered for sale, and appellant, George W. James, became the purchaser for the sum of $24,500, which was paid. The commissioner made report to the court, the sale was approved, and a deed to the purchaser executed and delivered. The purchase money was ordered paid into the court, with an order and directions to the clerk to make distribution. The money was paid into the court, and the clerk distributed it as directed. There were no exceptions filed to the report of the commissioner or objections made to the order of distribution, all the parties appellant and appellee being parties to the proceedings hereinbefore recited, except appellants Anders, Samuels, Coleman, McGlasson, Coulter and McNeil.

Subsequent to the sale, confirmation, payment of purchase price and its distribution, the judgment and decree of foreclosure was reversed, and the cause remapded. Fox v. Pinson, 172 Ark. 449, 289 S. W. 329. After the remand, plaintiff Yetta C. Fox filed her cross-bill against appellants Pinson and James. A demurrer was sustained, and an appeal taken from the order sustaining the demurrer, which was by this court reversed, Fox v. Pinson, 177 Ark. 381, 6 S. W. (2d) 518, and, after the second remand, additional testimony was given. At the conclusion of .the testimony, and before the submission, Yetta C. Fox took a voluntary nonsuit as to her cross-complaint. The court rendered its judgment and decree, and this case is here on its third appeal.

By reason of the number of parties to the action and their conflicting claims, the decree is voluminous and involved, and will not be copied here in its entirety, but such portions of it and the facts established necessary for the determination of the rights of the parties will be hereinafter stated.

At the threshold of this appeal the question arises, what are the rights of George W. James, purchaser at the sale made by virtue of the orders contained in the first decree of the chancery court? Appellant Fox and others say he has no rights and no interest in the property, because the decree was a nullity, being void ab initio, and they cite as authority an expression of this court in Fox v. Pinson, 177 Ark. supra, in which reference is made to the sale to James as “a void foreclosure sale.” The question of the validity of the decree or the sale made pursuant thereof was not before the court, nor was the court attempting to pass thereon. The language was clearly descriptive in its character, and related to James, a new party to the action. It is clear also that the word “void” was not used in its meaning of nullity, but in the sense implying error, which use is well recognized by courts and lexicographers. Words & Phrases, p. 876; Bouv. Law Dict. Rawles 3d Rev. *3406; Mobbs v. Millard, 106 Ark. 563, 153 S. W. 821; U. S. v. Winona, etc. Co., 67 Fed. 948; State v. Richmond, 26 New Hamp. 232-237. This was the only sense in which ,the word could have been used in 177 Ark. supra, because the court had in mind its decision in 172 Ark., supra, where the reasons for reversal are stated and where the decree was held “erroneous,” as such in fact it was, because the trial court had jurisdiction of the subject-matter and the parties, so thafi the decree was not coram non'judice and void, but because of errors committed, the decree was merely one which might be avoided. Hudson v. Union Mercantile Trust Co., 148 Ark. 254, 230 S. W. 281, and cases cited.

James was a stranger to the suit, and, having purchased at a sale made in due conformity to a decree in full force, unsuspended and unreversed, is protected in Ms purchase as against all persons parties to the proceedings, though the decree was afterward set aside. Moore v. Woodall, 40 Ark. 42. All the parties to this proceeding, except the six hereinbefore named, were parties to the litigation resulting in the decree. Neither they nor any one of them obtained a supersedeas of the decree. They failed to object to the sale, its confirmation, the execution oif the deed to James, a stranger to the proceeding, or to the distribution of the money paid by him, and, having elected to prosecute their appeal without obtaining a suspension of the decree, it would be inequitable for them, having suffered James to part with his money, to now divest him of the land, and he is fully protected as to them. Boyd v. Roan, 49 Ark. 397, 5 S. W. 704, and cases cited; Hudson v. Union Merc. Trust Co., supra.

In passing on the rights of the appellee Chas. O. Austin, Bank Commissioner, successor to the First State Bank of Texas, it will be necessary to discuss the facts existing prior in point of time to the institution oif this proceeding. Whatever rights he had came through John T. Finn, who, appellant Austin claims, was the owner of a one-half interest in the property, and whose mortgage to the First 'State Bank of Texas was executed and recorded prior to the mortgage of Pinson to the First National Bank of El Dorado and prior to the deed from Pin-son to Fox, and is paramount to the claims of the other parties to this suit. The correctness of this conclusion will depend upon the interest Finn owned in the property at the time of his mortgage, which is conceded to be the elder of the various conveyances and transactions upon which the claims oif the other parties are based. Before and until July 19, 1922, Finn was the owner of a leasehold covering the east 75 feet of lot 4, block 17, in the city of El Dorado. A suit was brought by various creditors of Finn wherein liens were claimed against the property, which suit, after having been pending for about a year, was terminated by a judgment and decree rendered July 19, 1922, awarding judgments for large sums against Finn, declaring a lien on the property, and barring and foreclosing his equity of redemption in said leasehold interest in and to the property described above, appointing a commissioner, and ordering sale of the “leasehold interest” to satisfy the said .judgments.

On the 29th day of August, 1922, Finn executed a mortgage to the State Bank of Paris, Texas, conveying “a third mortgage and all rights, claim, title and interest owned by him in the Franklin Hotel building, now known as The States Hotel, situated on the east 75 feet of lot 4, block 17, in the city of El Dorado, together with the ground lease on the said described tract of land, ’ ’ to secure an indebtedness of $......................... On October 10, 1922., sale of the property by virtue of the aforesaid decree was made, and W. J. Pinson became the purchaser, the sale being confirmed on the 13th of the same month, and deed executed and delivered to him, thus merging the leasehold interest with the fee of which he was and had at all times been the owner. The execution of the mortgage to the Texas State Bank was made at a time when Finn had no interest in the property, as that had been foreclosed by the decree of July ante, of which the bank was bound to take notice. After the foreclosure sale and purchase by W. J. Pinson, he entered into an agreement with John T. Finn as to the management of the property and its disposition. The building on the land was constructed and operated as a hotel, aiid was still incomplete in some of its details. Finn was a builder, and had in fact constructed the hotel, and doubtless had lost considerable money in the transaction. Pin-son was desirous of disposing of the property, and agreed with Finn that the latter should finish the building, procure a purchaser, and out of the proceeds Pinson, after having deducted the value of the lot, which was fixed at $10,000, and the sums he had paid for the property at the foreclosure sale and other expenses he had incurred, would give Finn one-half of the remainder. Finn did procure, through the appellant Dielman, a real estate broker, a purchaser, Mrs. Yetta C. Fox, who paid Pin-son $5,000 in cash, and for the remainder, $50,000, executed 25 notes for $800 each, becoming due monthly, the first! due January 1, 1929, secured by a first mortgage, and sixty notes for $500 each payable monthly, the first falling due January 1, 1924, secured hy a second mortgage on the property. A settlement was made between Pinson and Finn by which twelve of the first mortgage notes and eight of the second mortgage notes were delivered to Finn, thirteen of the first mortgage notes and forty-eight of the second mortgage notes remaining in the hands of Pinson. It seems that before 'the settlement between Pinson and Finn four of the second mortgage notes had been paid, h> whom and how the proceeds thereof were divided is not shown. There was an additional number of the second mortgage notes which would have gone to Finn, but Pinson being Finn’s indorser on a note to a Drew County bank for four or five thousand dollars, these second mortgage notes were retained by Pinson to protect him as the indorser on said note. Finn is not now complaining of this settlement and has passed out ,of the case.

After the delivery of the first and second mortgage notes to Finn as aforesaid, he sold ten of the first mortgage notes to the Globe Petroleum Company and delivered two to the State Bank of Paris, Texas, which accepted same and applied them ás a credit on Finn’s note. The eight second mortgage notes passed into the hands of appellants, Anders, Coulter, and others. At no time was Finn’s interest greater than the leasehold which was extinguished by the foreclosure of July, 1922, and consequently Finn had no interes! to convey at the time of the execution of the mortgage to the Texas bank and intended to convey only such interest as he then had. For he expressly limited the interest conveyed by the words “now owned by me.” Blanks v. Craig, 72 Ark. 80, 78 S. W. 764. The conveyance could not, therefore, be extended so as to cover any after acquired interest. Bunch v. Johnson, 138 Ark. 396, 211 S. W. 551. It is clear that the only right of Austin is to the proceeds of the two first mortgage notes now in the custody of the clerk of the court below, and the court below erred in decreeing otherwise. All ,the other notes in the possession of Finn had passed into the hands of innocent purchasers for value before the institution of this suit, to which Austin’s predecessor was a party, and, having acquiesced in the sale and distribution of its proceeds, he cannot now assert a claim inconsistent with such action.

The facts relating to the transactions of W. J. Pinson with Yetta C. Fox are sufficiently set out in the case of Fox v. Pinson, 172 Ark., supra, in which the court held that she was entitled, before Pinson could foreclose his mortgage against her, to have her title cleared as to outstanding prior incumbrances, and that foreclosure could not then be had except as to notes due, there being no acceleration clause contained in any .of said notes, and that the chancellor erred, and the case was remanded for further proceedings in conformity with the opinion rendered. However, Yetta C. Fox, by failing to maintain the status quo ante otf the property, has made it impossible to obtain the relief granted her. She failed to supersede the decree appealed from, permitted the property to be offered for sale, the sale to be made without objection, and suffered the money to be distributed. She must therefore be remitted to some other and further proceeding to assert her rights and recover for her injury, if any.

Having disposed of the contention of the appellant Austin, it follows that the rights of the First National Bank of El Dorado were paramount to that of all the parties to this litigation. The mortgage executed to it by W. J. Pinson was prior to the deed to Mrs. Fox, and contained a parcel of land in the city of El Dorado in addition to the property conveyed by Pinson to Mrs. Fox. This mortgage was made to secure a note of $20,000, ■which, at the time of the institution of this suit, had been reduced to the sum of $......................... It is contended that it should first exhaust its security as to other property not involved herein before being allowed to participate in the proceeds of this litigation. On the last trial of this case the court so found, but its finding and decree in that particular were not based on any evidence taken on trial, and the decree was afterwards corrected. ¥e think this decree of the court was correct, because, as before stated, the decree in that particular was not based on any testimony given, and further, all those complaining were parties to the suit from its beginning, and participated in the distribution of the proceeds arising from the sale to James, and the motion for the marshaling of the securities was not made until long thereafter, and until after the First National Bank had been fully paid.

W. J. Pinson has died since the beginning of this suit, and the case was revived in the name of his administrator and heirs, and by the decree of the trial court appellant F. M. Dielman was awarded judgment against John T. Finn, and against the administrator of W. J. Pinson. The preponderance of the testimony establishes the fact that the connection Dielman had with the transactions involved in this case grew out of a contract between him and Finn for the sale of the Pinson property, and that Finn, at the time of his conversations with Dielman, represented himself' to be the owner of the property. Pinson knew nothing of the arrangement between Finn and Dielman — had no connection with it. ■Certain of the notes of Mrs. Tetta O. Fox were given to Finn as commission for making- the' sale. These were delivered by Finn to Dielman, who claimed $2,000 commission. There was credit given by Dielman on his claim, and he sued for the balance of $650, with interest at six per cent, from February 13, 1925. Pinson did not agree with Finn or Dielman to pay Dielman any part of his commission, and the decree of the chancellor awarding judgment against Pinson was against a preponderance of the testimony.

The trial court held that appellants M. J. Samuels, J. A. Anders, C. R. Coleman, E. H. McGlasson, E. H. Coulter and F. McNeil were entitled to judgment against Yetta C. Fox as follows :

M. J. Samuels.....'.....................................$ 703.44
J. A. Anders................................................ 70344
C. R. Coleman............................................. 703.44
E. H. McGlasson....................... 1,406.88
E. H. Coulter............................................. 1,406.88
F. McNeil.....-...................................... 703.44

The aforesaid appellants were not parties to the suit at the time of the rendition of the first decree, but, after the remand, they intervened, claiming the ownership of eight of the second mortgage notes for the sum of $500 each, with accrued interest, and asserted their right to judgment against Mrs. Fox and W. J. Pinson, and that their claims should have priority over James as to any fund derived from the sale of the property under the Fox second mortgage; that judgment should be rendered against John H. Pinson on all notes involved in this action, and executed or indorsed in blank by the decedent, and that they have priority over James as to any funds derived from the sale of the west five feet of the property in controversy under the Fox second mortgage. It appears that all of the notes held by them, except perhaps two or three, were indorsed by Pinson without recourse. W. J. Pinson died, and John H. Pinson was duly appointed administrator, gave the necessary notices, and none of these several notes were presented to the administrator for allowance or rejection within a year after the. grant of the letters of administration. So that, in any event, these notes would not be claims against the estate of W. J. Pinson, and are barred by virtue of the statute of nonclaim. Davis v. Kramer, 133 Ark. 224, 202 S. W. 239; Crawford & Moses’ Digest, § 97 subdiv. 5.

As we have seen, James is the owner of the land involved in this suit as against all the parties to the original proceeding, all of' whom are parties to this suit, except Anders and others above named. By reason of the sale and purchase by James he became the equitable assignee of the rights of the parties to the original suit, and by the deed executed to him he acquired the title and interest of all the incumbrances which the sale discharged. Therefore, as to the appellants Anders and others, while not the owner of the title as against them, he will be deemed to have acquired the notes mortgaged to the National Bank of El Dorado, and the first and second Fox mortgage notes owned by the parties to the-first suit. While appellants Anders and others are entitled to a judgment against Yetta C. Fox, and for foreclosure of the property on which said notes are a lien, the proceeds of the sale, before being applied to the satisfaction of their notes, should be applied to the payment of the 25 first mortgage notes, the payment of the sums due and collected by the First National Bank of El Dorado on the balance due it under its mortgage from W. J. Pin-son, with interest on a-11 of said sums according to the face of the note, and the remainder, if any, should be divided proportionately between James, owner of forty-eight second mortgage notes under his aforesaid purchase, and Anders and others, owners of eight of the second mortgage notes.

It seems that, under the original decree ordering a distribution of the proceeds of the sale to James, a portion of it was paid as accrued taxes on the property and costs of the proceeding, and the remainder distributed as follows: $4,593.75, sum due First National Bank of El Dorado, with accrued interest; $9,015.23, amount of ten first mortgage notes to G-lobe Petroleum Co.; $8,589.39 to W. J. Pinson as his distributive share; $1,801.63 to First State Bank of Paris, Texas. Each of these parties have received said sums, and the evidence shows that they were entitled to same as their share of the distributive fund arising from the purchase by James, but appellant Austin, under the court’s order, returned the amount received by his predecessor bank to the clerk of the court, to which sum he is now entitled.

We have concluded that this cause should be reversed, and remanded with directions to the chancellor to order the return of the money in the hands of the clerk to the appellee Austin, and that his intervention be then dismissed; that Yetta C. Fox take nothing in this action, and that James, Anders, Coleman, Coulter, Samuels, MeGlasson and McNeil have .judgment against her, each for the amount of the second mortgage notes now due held by them, or to which James is entitled by reason of his purchase; that Dielman have judgment against John T. Finn for $650, and his complaint as to Pinson, administrator, be dismissed; that the interventions of Anders and others, interveners, parties since the second remand oif this cause, be dismissed as to Pinson, administrator; that the said appellants Anders and others, owners of the eight second mortgage notes, may have a lien declared, subject to the rights of James under the mortgage of Pinson to the First National Bank of El Dorado, and may have a decree of foreclosure, subject to the aforesaid rights of James, and the proceeds shall be paid to James, and to the said interveners propQrtionately; that all the interventions as to and against the First National Bank of El Dorado, the Globe Petroleum Company, and the estate of W. J. Pinson be dismissed for want of equity.


text:
    Bell v. State.
    Opinion delivered October 7, 1929.

      W. J. Lanier and Roy D. Campbell, for appellant. •

      Marvin B. Norfleet, Special Counsel for State, for appellee.
   Butler, J.

Robert Bell and G-rady Swain, two negro boys, were indicted for the murder of Julius Mc-Cullom by drowning. The crime is alleged to have been committed in St. Francis County, and, on a trial in the circuit court of that county, they were convicted of murder in the first degree, sentenced to death, and, on appeal to this court, the case was reversed and remanded. 177 Ark. 1034. Afer the reversal, the- case was transferred to the circuit court of Woodruff County, on change of venue,' where the cases were severed, and Robert Bell was placed upon trial. That trial resulted in a verdict of guilty of murder in the first degree, with a sentence to the penitentiary for life, from which an appeal has been duly prosecuted to this court.

In the opinion rendered in the case of Bell and Swain v. State, supra, the facts were stated, and therefore there will be no restatement of the facts here, except such as are necessary for the consideration of the case now before us.

On the first appeal there were two assignments of error pressed upon the court for a reversal of the judgment. It was insisted, first, that the confessions introduced in evidence were obtained by coercion, and were not freely and voluntarily given; and, in the second assignment of error, it was insisted that the evidence was not legally sufficient to warrant the verdict. The court reversed the case on the second ground of error, holding that there was no independent evidence, aside from the confessions, that any one drowned Julius MoCullom and Elbert Thomas, and that the evidence was not legally sufficient to warrant a verdict of guilty. The court said:

“For the reason that we have reached the conclusion that the evidence is not legally sufficient to support the verdict, it will not be necessary to decide whether or not the confessions were extorted from the defendants by whipping them. In this connection, however, we again call attention to the fact that this court is committed to the rule that confessions used in evidence against the defendant must be free and voluntary, and they must not be extorted from them by whipping them or by any inquisitorial method.”

On the second trial of this case there was additional testimony introduced on the part of the State tending to establish the corpus delicti. One German Jones, a negro man, who was not a witness in the case of Bell and Swain v. State, was introduced, and testified to the fact that, on the day when Julius McCullom and Elbert Thomas were drowned, he was hunting in the afternoon oif that day along the shores of the bayou in which the bodies of the two boys were later found, and, hearing a splash in the water, thought it might be ducks, and slipped through the bushes to where he had a view of the bayou, and saw two colored people standing in a boat, facing each other, and in the act of throwing, and did throw, a white “human” in the water; and, seeing this, witness turned and ran away.

Another witness, who was not a witness at the first trial, one A. H. Davidson, gave testimony in the case. He testified that, some time in the afternoon of the day the boys were drowned, he had taken Mrs. McCullom to her home in his ear. This appears to have been around three o’clock in the afternoon, and, in something like a half or three-quarters of an hour, he returned to the store, where he saw Bell and Swain going toward the bayou. This testimony, together with the other testimony in the case, is perhaps sufficient to warrant the submission to the jury, so that it is necessary to pass upon the admissibility of the confession made to Campbell and McCollum and detailed by them to the jury, over the objections and exceptions of defendant, and which was assigned as error in the motion for a new trial.

On the 29th of December, 1927, at some time in the afternoon — probably between three o’clock and sundown —.Julius MoCullom, a white boy about twelve years old, and a negro' youth about nineteen or twenty years of age, were drowned at a point directly in front of the store of the white boy’s father, in a small bayou, which at that time contained a great deal of water. Little Julius was discovered missing about dusk, and a search made for him. He had been seen going toward the bayou with Elbert Thomas, and the waters of the bayou were searched, where, about eight or nine o’clock that night, the body of Julius was found. It developed later that the body of Elbert Thomas was lying in deeper water, and several feet away from the body of Julius. It was first thought that Elbert Thomas had drowned Julius, and an active search was made for him throughout the country, Grady .Swain, one of the defendants, having stated, after having been whipped at the jail, and asked if Elbert Thomas had not drowned Julius, that Elbert Thomas had in fact drowned Julius, and that he (Swain) had assisted him. About ten days later, after the water had gone down somewhat, the body of Elbert Thomas was found. In the meantime both Robert Bell and Grady Swain had been arrested and put in jail, and, when the body of Elbert Thomas was found, they were conveyed to the State Penitentiary at Little Rock for safekeeping. Shortly after having been placed in the penitentiary, Bell made a confession, in which he professed to have been in company with Swain, and that the two of them had drowned Thomas and Julius MoCullom, stating that he had drowned the negro, Thomas, and that Swain drowned the white boy. Swain, on the other hand, stated that he had drowned the negro, and that Bell had drowned the white boy. Bell gave the details as to how the acts were committed, and this confession was at a later date written down and signed by Bell, while he was still in the penitentiary. On a trial of the case this written confession was offered in evidence, but excluded by the court. W. J. Campbell, the sheriff of St. Francis County, and B. McCullom, the father of Julius, however, were permitted to testify before the jury as to an oral confession made to them by Bell substantially the same as the written one.

The defendant claimed that all of' the confessions made to Warden Tedhnnter and to Sheriff Campbell and to Mr. M&Cullom were extorted from him through and by means of whipping, administered to him by Warden Todhunter while defendant was confined in the penitentiary, and that the confessions were not true, and that he did not drown or assist in the drowning of either Julius or the negro, Elbert Thomas; that he knew nothing about it; didn’t know that Julius had been drowned until after his body was discovered and brought to the store of Mr. McCullom. Bell described the manner in which he was whipped and the instrument of torture applied to him, and insisted in his testimony that he denied and continued to deny for a while any knowledge of the alleged murder, but that, little by little, in answer to repeated questions and statements made to him that he did murder Julius and drown him, in order to escape the torture he confessed to the commission of the crime. He told how he was made to lie upon the floor, clad only in a thin shirt and trousers, and was whipped with a leathern strap attached to a handle — the strap was three and a-half feet long and three inches wide. This testimony is virtually uncontradicted. The warden who administered the whippings stoutly averred that the confessions were freely and voluntarily made, and, while admitting the whippings, stated on his direct examination that Bell was beaten to make him tell where the money —some fifteen or twenty dollars which Bell had confessed to having taken from the body of Julius — was hidden or disposed of, and that he whipped him also for insubordination; that “he^was a mean, hard-headed nigger.” But, after a time, the -warden stated that the whippings were begun in a day or two — or some three days — after Bell was brought to the penitentiary, and, while the warden said that Bell was not beaten very severely, he stated that he “whipped until he conquered.” He stated that he began to question Bell soon after his admission into the penitentiary as to his connection with the drowning of Julius and Thomas, and that this was at the request of the sheriff, Mr. Campbell; that the whippings were given upon Bell’s failure to talk and to answer questions regarding the drowning, and that “he finally told me little by little — until he finally told me all.” While at one time the warden stated that he whipped Bell not to make him confess about the drowning, but only because he was insubordinate and to make him tell where he' had put the money, he was asked this question :

“Q. Did you whip him at any time because he wouldn’t confess and give details? A. I whipped him to try to make him tell where the money was. Q. Not about the killing of Julius MeCullom? A. Well, I don’t know — probably I might have done that. I don’t know; maybe it was in connection with the case. Q. Did he make a free and voluntary confession or not? A. Well, I don’t know that I could say Bell ever made a free and voluntary confession. I got a confession out of him by piecemeal — it was never very free. There never was any voluntary confession coming from this big nigger.”

The following questions were asked him by the court and answers made in response thereto:

“Q. Did you get this statement by persistent questioning from time to time ? A. Yes sir. Q. The whippings you gave him were based upon his failure to talk to you and answer questions when you propounded to him questions relating to this matter as well as to his conduct? A. Yes sir. Q. After defendant told you what he did about this confession, whom did you advise that the confessions were made? A. The sheriff, Mr. Campbell.”

The sheriff, J. M. Campbell, testified also as to a confession made to him. He stated that Bell was transferred to the penitentiary by his (the sheriff’s) son, and afterward he went over to the penitentiary and talked to Bell about it; that he made two trips to the penitentiary; that the first trip when he talked with Bell he was not able to get anything from him, but on. the second trip Bell confessed, saying, “I am going to tell you the truth about this,” and then proceeded to detail his confession, and Swain also made a confession at that time; that this confession was obtained within the walls of the penitentiary, and the only persons present were himself and Mr. McCullom.

The sheriff was asked the following questions:

“Q. At what time did you get this statement? A. What do you mean — what day? Q. How long after Bell had been taken to the penitentiary? A. I guess somewhere about ten days or two weeks. Q. You don’t know when Todhunter whipped him — before or after you got the confession? A. No sir, I don’t know.”

It is contended that, although a confession might have been extorted from Bell by whipping him, a subsequent confession was made to Sheriff Campbell in the presence of Mr. McCullom, and that these confessions were admissible because made later in point of time, and that there were no’ threats made to him at the time of the confession or whippings administered to him, and that the confession was free and voluntary. The trial court adopted this view, and the testimony was admitted, although, as we have stated, the written confession, made subsequent' to that made to Mr. Campbell, was excluded.

It is clear that the confessions made to Todhunter were the result of coercion, and that the whippings were, anterior to any confession, for the warden admits that these whippings were begun within a few days — perhaps the first day, and not later than the fourth day of Bell’s incarceration — while the confession to Campbell, according to his testimony, could not have been obtained earlier than ten days or two' weeks afterward. The environment of Bell had not been altered; he was still within the penitentiary, surrounded by the white man’s walls, guarded by the white man’s guns, and in terror of the white man’s lash, when the confessions to Campbell were made.

In the case of Love v. State, 22 Ark. 336, which is the leading case in this State on the admissibility of confessions, the rule is laid down that confessions are not admissible against the party charged with crime, unless freely and voluntarily made, and the onus is upon the State to prove them of this character; and, when the original confession has been made under illeg'al influence, such -influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown. That was the case where a murder had been committed, and a crowd of more than a hundred persons had gathered where the dead body was found, with the avowed purpose of ascertaining the murderer. A committee of twenty was formed to give shape and concert to the efforts to be made for the discovery of the perpetrator of the crime; by these a special committee of three was detailed to prosecute the inquiry. Suspicion was fixed upon the defendant, Love; he was sent for, brought to the place -of assemblage, and put in charge of the committe of three. He was taken away from the crowd, was told that the committee was satisfied that he had killed deceased, and that it would be better for him to confess; that his brother had confessed, and a written statement of his was read to him. He was told that the committee would do all they could to save him, although they did not know that they could do so; that he was not the person they were after, but that such person was one Ackridge, who, they believed, had instigated the defendant to commit the murder. Up to this time the defendant denied the charge, when he was confronted with his brother, who had made the written statement mentioned, and who said to the defendant concerning it, “Jarrett, you know it is true.” Then the defendant confessed the murder, after having for a half or three quarters of an hour protested his innocence, and after he had been assured of protection by the committee. Defendant appeared to be afraid of Ackridge, from whom the committee promised he should be protected, as also from everybody else who might be incensed at him or should desire to injure him on account of his confessions.

These confessions were made the day before the defendant was taken to Fayetteville, where he was confined for a month in default of bail. During the month the defendant was confined.at Fayetteville, he made frequent confessions like the one he made to the committee, always admitting that he shot the deceased, that he did it at the instance of Ackridge. These confessions are spoken of by the persons to whom he made them as being made freely, without any promise or threat from them, but without caution by them to the defendant against the consequences of the confessions. The court said:

“These latter confessions made at Fayetteville, if the only confessions that had been made by the defendant, would have been evidence against him, although the defendant was not warned that his confessions would be used against him. The confessions made to the committee were inadinissible. The confessions made at Fayetteville were incompetent evidence on account of the inoompetency of the first confessions, unless it had been clearly shown by other evidence that the influences which induced the first confessions had ceased to operate upon the mind of the defendant. In this case there were no circumstances, such as length of time, an interval for reflection, a criminal accusation, information or warning* not to depend upon the promises of protection the defendant had received, or anything else tending to break the uniformity of the confessions he had made to the committee; but the natural effect of his condition, and of all the attendant facts disclosed in the transcript, was bo induce him to a continuance of the confession, his fears of a summary punishment from an exasperated community, and of private injury from Ackridge, and his hopes of protection from all these impending evils, had extorted from him. Hence in this case the subsequent confessions, after proof of the original confession and its circumstances, should have been excluded from the jury.

“It is in precisely such cases, where the atrocity of the crime makes the criminal abhorrent, that the safeguards of .the law must be well protected, that the just punishment of the guilty may not be a precedent or excuse for the illegal conviction of the innocent. Doubtless an adherence to such rules of law as the court below failed to observe, and as we are called upon to enforce, may sometimes screen the undeserving from merited punishment,- but there is no safety for the greater portion of society, that is, the observers of the law, without preserving with strictness the integrity of legal rules that protect against perjury and wickedness, as well as against the weakness of those who are wrongfully suspected or accused of criminal acts.”

This case has been approved and uniformly followed by a long line of decisions, and we hold the principles therein announced to be the settled rule of evidence in this State. Smith v. State, 74 Ark. 397, 85 S. W. 1123; Turner v. State, 109 Ark. 332, 158 S. W. 1072; Pearrow v. State, 146 Ark. 201, 225 S. W. 308; Greenwood v. State, 107 Ark. 568, 156 S. W. 427; Dewein v. State, 114 Ark. 472, 170 S. W. 582.

We think the facts in the case at bar stronger than those in the case of Love v. State, supra. Here we have a negro boy, whom the testimony of Mrs. McCullom, the mother of the unfortunate little Julius, characterizes as ‘ ‘ a good Christian boy, if ever there was one. ’ ’ Her testimony showed that he had been the humble friend and companion of her children for six years; that he was obedient, lánd and helpful; that he shared his horse,- the pride of his heart, with Julius, whom he loved like a brother; that he would carry the little children around on his horse, and in every way manifested a gentle and affectionate spirit. This is the “mean, hard-headed nigger” of whom Mr. Todhunter spoke. This negro boy was taken, on the day after the discovery of the homicide, while he was at his usual work, and placed in jail. He had heard them whipping Swain in the jail; he was taken from the jail to the penitentiary at Little Bock, and turned over to the warden, Captain Todhunter, who was requested by the sheriff to question him. This Todhunter proceeded to do, day after day, an hour at a time. There Bell was, an ignorant country negro boy, surrounded by all of those things that strike terror to the negro heart; he was told that he had drowned Julius MoCullom, and that he must admit it, and asked if he hadn’t done so; when he denied it, he was whipped by the warden, who “usually conquered when he began,” according to the warden’s own testimony. Under these conditions Bell finally made his confession. Then the sheriff came, and again he told of how he had drowned Julius and taken $20 from his person, and where he had hidden the money. When search was made, no money was found; he was visited again, and again whipped; he told of another place where the money was hidden, and, when it was not found at that place, he was whipped again, until he told of another place, saying that he had been lying, and not to whip him any more, and he would tell them where the money was; he told them another place, and yet the money was not found.

As in the case of Love v. State, supra, there was no change in the circumstances or anything else tending to break the uniformity of the conditions under which he had made the confessions to Todhunter, but the natural effect of his condition and all the attendant facts disclosed was to induce him to a continuation of his confessions; he was still in the penitentiary, and might justly fear further punishment from the man who “whipped until he conquered;” his hope to escape from the stingingi blows of the leathern strap, and the terror of the dread presence of one before whom he must have quaked as in the face of death itself must have powerfully influenced him and impelled him to repeat the confession already made.

It was the duty of the State to affirmatively show that the confessions made to the sheriff and MoCullom were given free from the undue influence under which the prior confessions were made, and this it has wholly failed to do. The only reasonable inference, from all the facts, is that such influence did remain and produce the confession to Sheriff Campbell' and Mr. McCullom, and is on a parity with the written confession later made, and should also have been excluded by the court.

For this error the case is reversed, and the cause remanded.