text:
    Robinson v. Florence Sanitarium.
    Opinion delivered June 27, 1921.
    1. Specific performance — fraud—weight of evidence. — In a suit by a vendor for the specific performance of a contract for the purchase of real estate, a finding of the chancellor that the officers of the vendor who negotiated the sale were not guilty of misrepresentation held to be supported by preponderance of the evidence.
    2. Frauds, statute of — completed contract. — In a suit by a vendor to enforce specific performance of a contract of sale of real estate, where the statute of frauds was not pleaded, it must be taken as conceded that the written bid of the vendee for the property, accompanied by his check, and its acceptance by the officers and stockholders of the vendor, constituted a completed executory contract for the sale of the. property.
    3. Specific performance — to whom granted. — The remedy of specific performance may be granted to a vendor, as well as to a vendee, of real property.
    4. Specific performance — when contract enforced. — A contract for the sale of real estate will not be specifically enforced unless it is free from fraud, misrepresentation, mistake, • or illegality, and_ is fair and just in its terms.
    5. Specific performance — misrepresentation.—An untrue statement of a material fact will prevent specific performance, irrespective of the party’s intent to deceive, where the other party relied upon such misrepresentation.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Bridges & Wooldridge, for appellant.
    Appellee does not come into court with clean hands, but comes trying to enforce a contract that was obtained by unfair methods,. Fairness, and honesty in business. dealings is demanded, especially in chancery courts. Specific performance is within the sound discretion of the court, and if the contract is inequitable it will not be enforced. One seeking equity must come into court with clean hands. The contract must he free from fraud, mistake, misrepresentation, or illegality. 25 R. C. L., p. 223, % 21; Pomeroy’s Eq. Jur. (3 ed.), vol. 4, § 1405; 86 Ark. 600; 125 Id. 572; 75 Id. 46. Misrepresentation is material. 100 Id. 144; 82 Id. 20. Deceit is fatal, as is misrepresentation. 30 Ark. 535; 109 Id. 297; 115 Id. 297; 43 Id. 464; 115 Id. 304. An executory contract will not be specifically enforced where the vendor has made farudulent material misrepresentations. 175 N. W. 329; 53 S. E. 593; 12 R. C. L. 283-4; 35 L. R. A. (N. S.), p. 185 and notes, and p. 189. The decree is against the clear preponderance of the testimony and should be reversed. 143 Ark. 307.

      Coleman & Gantt, for appellee.
    The appeal presents only a question of fact and the finding is amply supported by the evidence. The alleged misrepresentations had nothing to do with the contract itself but only with the amount bid, so any possible injury done appellant was removed by reducing the bid. 2 Pom., Eq., §§ 889, 899. But under the testimony appellant voluntarily offered to pay $30,000 for the property and he should be required to pay it.
    A statement, to make it a misrepresentation, must be a positive affirmation of a fact and not a mere expression of opinion. 36 Cyc. 600. Niven’s statement was a mere expression of opinion. The mere fact that Niven was president of appellee did not authorize him to sell its property or make admissions binding it. 14 C. J. 444, 476.
    When all the testimony is considered, the contract was fairly entered into and should be suecifically enforced. 224 S. W. Pi84; 140 Ark. 384; 137 Id. 414. So far as the terms of payment.are concerned, the decree conforms verbatim to appellant’s proposal; the deed tendered is also in accordance with the contract, but, if not, appellee stood ready to correct it and had the right to do so. 73 Ark. 491; 83 Id. 340. The decree is right, and no error is shown.
   Wood, J.

The appellee instituted this action against the appellant in the Jefferson Chancery Court, alleging that it was owner of a certain half block of land with the improvements thereon in the city of Pine Bluff, Arkansas; that it agreed to sell the land to appellant for the sum of thirty thousand dollars, as evidenced by a written bid or offer from the appellant to the appellee of that sum for the purchase of the property. With the offer was a certified check for $4,500 cash, and the balance to be paid in three years at eight per cent, per annum, payable semi-annually, with the privilege of paying the sum of $500 or any multiple therof at any interest-paying period. Appellee alleged that it accepted the proposition, and on August 26, 1920, it executed and delivered to the appellant its warranty deed conveying the property to him in accordance with the agreement; that appellant had stopped the payment of the check given to the appellee as earnest money and had refused to accept the deed which appellee tendered, and prayed that the appellant be required to specifically perform the contract.

The appellant answered, and, after denying all the material allegations of the complaint, set up that, if the offer alleged was made, it was made because of the representation of the president of the appellee, who assumed to represent it in conducting the negotiations for the sale of the property; that he represented that the proposed sale embraced everything: -in the building execept groceries,' one chair, and a few surgical instruments; that the appellee discovered, bef ore concluding the purchase, that there were many other valuable furnishings of the building which did not belong to the appellee, and which ap-pellee could or would not include in the conveyance; that these furnishings which did not belong to appellee were worth two or three thousand dollars or more; that, after making this discovery, anpellant notified the appellee that he would not purchase the property. Appellant further alleged that on or about the 7th of August, 1920, he did offer to the president of the company the sum of $29,000 for the property, including all the furnishings and contents ; that the president on the same day informed the appellant that another person had offered $30,000, and that it would require $30,000 to purchase it; that it was upon this representation that appellant delivered to the president of the appellee an offer to purchase the building and its contents for the sum of $30,000, but appellant learned that the appellee had not had an offer for $30,000 for the property, and he thereupon notified the appellee that he would not purchase. The appellant also alleged that he gave the appellee a check for the sum of $4,500, which had not been paid by the drawee bank, but was withheld from the appellant. He prayed that the appellee be required to surrender the check.

The appellee also instituted an action against the drawee bank to recover judgment for the amount of the check which the bank had refused to pay. The bank answered and alleged that, before the check was presented, the drawer of the check had notified it not to pay the same. It asked that Robinson, the drawer of the check, be made a party, and that, in order to avoid a multiplicity of suits the cause be transferred to the chancery court and consolidated with the suit of appellee against the appellant pending therein. The transfer and consolidation were made.

The appellee is a domestic corporation and owns the property in controversy on which it maintains and conducts, as its name indicates, a hospital or sanitarium. D. B. Niven testified that he was the president of the ap-pellee ; that the appellant delivered to him a written proposal to purchase the hospital, which he identified, and the same was introduced in evidence and is substantially as set forth in the complaint. He further testified substantially to the facts as they are alleged in appellee’s complaint. He testified that he told appellant that certain doctors had some surgical instruments in the hospital that were not the property of the appellee; that witness did not know anything about these instruments, but that the only personal property that the appellee could sell to the appellant was contained in an invoice that the appellee had obtained from Doctor Jordan, from whom it had purchased the property. Witness called appellant’s attention to this invoice. Witness told appellant that the appellee paid for the stuff on the inventory the sum of $10,000. Witness did not know anything about the surgical instruments, but did undertake to tell the appellant about the furniture. He told appellant that the furniture was worth $2,500; that he could realize as much out of the furniture as it would cost him to change the sanitarium into an apartment house as appellant contemplated doing. It had been furnished and was being operated as a hospital. The witness stated that the appellant, the day before the board of directors were to receive bids, came into witness ’ office, and, after they had gone over the value of each department in detail, appellant made a bid of $29,000. The next morning one of the directors, Doctor Jordan, asked witness if anybody had sent in any bids, and witness informed him that there had been a bid of $29,000; whereupon Doctor Jordan said that it was no good — that he had a better one. Witness felt interested in appellant, inasmuch as he had discussed the proposition in a confidential way with witness, and witness thought that he wanted to purchase the property. It wasn’t time for the board meeting. Witness went over to appellant’s office and told him that witness understood there would be a better bid than his and asked appellant to come to the meeting as he was a stockholder any way; that witness would be glad for him to come and protect his bid. Appellant asked witness to take care of his bid, and witness replied that he did not want to do that, and asked appellant to bid whatever he wanted to give. Appellant then asked witness for his bid and changed it from $29,000 to $30,000. When the board met witness presented appellant’s bid, and it was accepted. Witness notified appellant, and he did not make any objection to it at the time, and never had made any objection to witness. Witness did not know what the amount of the other bid was, and did not tell appellant that there would be a bid of $30,000. He told him that he had been informed that there was a better bid, and that appellant would have to raise his bid. The furniture had cost the appellee six or seven thousand dollars. Witness was sure that appellant was misled probably by the fact that witness told him that it had cost $10,000. He may have thought that witness told him it was worth that; witness knew that appellant could not get $10,000 for it because appellee had sold it to Howard for $7,000 and afterward bought it back. Witness had told the appellant that he thought $29,000 would buy the property, and, after Doctor Jordan told witness that he had a better bid, witness then informed the appellant of this fact and as already stated asked him to go to the board meeting. Witness told the directors he wished they would make the price $29,000 to the appellant because witness was the cause of appellant’s raising his bid. Witness told them that he felt a little guilty, but he was entirely innocent in it. It was witness’ unintentional misrepresentation that caused appellant to bid $30,000 for the property. Witness was sure that appellant would have got it for $29,000 and went to the board two or three times and tried to get them to take off the $1,000, but they wouldn’t do it. Witness felt bad over it, and thought appellant ought to have it for $29,000 and wanted him to have it for that price as far as witness was individually concerned. Appellant afterward told witness that he did not want the property. Witness'was only a small stockholder, and did not care personally whether appellant took it or not. In the conversations witness had with appellant he had acted as president of the appellee. In the conversation with reference to the personal property appellant did not seem to lay any stress on the furniture and stuff at all. He said that it was the kind of stuff that could not be used. Witness did not represent to the appellant that Doctor Jordan’s surgical instruments in the hospital were contained in one case. Witness never discussed the title with appellant at all. Witness did not expect appellant to take it unless the title was good. The board had their attorney to prepare the deed and tendered it to the appellant. The deed was introduced in evidence.

The attorney who prepared the deed testified that when he tendered the deed to appellant, appellant said that he did not know whether he wanted to take it or not because he was not getting all the personal property he expected to get, and that he had been caused to bid more for the property than he thought was necessary. Witness saw appellant again' in a few days, and he still had not made up his mind, but after several weeks appellant finally told witness that he would not accept the deed. The deed was a warranty deed conveying the land with all improvements thereon and all furniture and furnishings belonging to the grantor and now in the building on said land, and contained recitals showing the terms of the purchase money in accord with the appellant’s bid.

Mrs. Harris testified that she was a tenant in one of the houses on the sanitarium property at the time she heard that appellant had bought the same. It was reported in the paper. After that appellant came out and was looking around at the property, and witness asked him if he was the man who had bought the same, and he replied that he was. He told witness that he was about to tear the house down that she was living in, and said he would be glad if witness would look around for a new house. Appellant and Doctor Jordan had been out before that day.

Another witness, a Mrs. Reynolds, testified that she was also a tenant in one of the houses on the property and stated that, after she saw in the paper the statement to the effect that the appellant had purchased the property, the appellant was out looking at the house, and she asked him if he was the man who had purchased the property, and he said yes. He discussed with witness certain improvements that he contemplated making on the house in which she lived and discussed the amount of rent that witness was paying and asked witness what amount she could afford to pay. Afterward two of appellant’s plumbers came out and did certain work that was necessary to be done. Appellant went through the house in which witness lived and discussed with her the changes he was willing to make.

Doctor Jordan, one of the stockholders and a vice president and director of the appellee, testified that on 'Friday preceding the stockholders’ meeting on the next day, appellant came to his office and asked if the sanitarium was for sale. Witness informed him that it was, and told him that the board wanted $35,000 for it; that for a speedy sale it might be had for thirty thousand, and witness and appellant began to figure it on that basis. Witness wrote out a proposition which he laid before the appellant as a tentative offer for the property at $30,000 with the terms specified. Appellant said that it was all right except for the cash payment of $5,000. Appellant stated that if the cash payment could be made $4,500, it was all right. Witness told him that could be arranged. Appellant stated that he would see his attorney and have him prepare the proposition in legal form, and appellant would bring it around in the morning with his check for $4,500. Appellee did not own any surgical instruments. The doctors furnished their own instruments, although they sometimes kept them at the hospital. On Tuesday following the Saturday on which the sale was made appellant and witness went all over the building together, and witness showed appellant all of its contents except the boiler room.and showed him what witness claimed as his own property. The appellant then said, “I don’t know what I am going to do with this doctor’s junk.” Witness replied, “Give me ten per cent, and I will sell it for you.” Appellant replied, “The job is yours.” Appellant meant by doctor’s junk the tables, sterilizing plant and things of that kind which were considered hospital furniture proper. There were two cases containing surgical instruments worth several thousand dollars. Besides these, two or three doctors had small packages left on the operating tables. There were two of these tables. The appellant did not give the witness a written bid of $30,000. Witness was requested by Harry Hanf to, let him bid on the property, and the stockholders ’ meeting was called for the purpose of negotiating with him. He had bid $27,500. Another man, Mr. Leo Andrews, one of the directors, said he would not let the property go for that. He was at the meeting but made no offer. Niven, the president of the appellee, had stated to witness that he had a proposition form appellant of $29,00, and witness told Niven that appellant had agreed with witness on $30,000; that he and appellant had talked it over, and that appellant said that $30,000 was all right.

The appellant testified that, in company with Doctor Jordan, he looked at the property in controversy on the afternoon of Friday, the 5th of August; that Doctor Jordan showed him all the rooms and their contents and told him that it had cost between eleven and twelve thousand dollars to furnish the building. While they were looking at it, Jordan asked witness, who was in the plumbing business, to send a man out to fix a certain defect in the sewer connecting one of the cottages. Witness talked with Niven in regard to the purchase and consulted with him about converting the building into an apartment house. Witness asked Niven if he had a list of the contents of the building, and Niven told witness that he thought there was one. Niven told witness that there were some groceries and a chair and some surgical instruments that Doctor Jordan had in one of the cases; that this was all that would not be included in the sale. After receiving this information from Niven and talking again with Doctor Jordan, witness went back to see Niven and asked him what he thought about an offer of $28,000. Niven informed witness that he could not get the building for that, but he could get it for $29,000. Niven told witness that he could get six or seven thousand dollars out of the contents. Niven assured witness that he could get $2,500 or $3,000 out of the furniture. Witness stated that on Saturday morning, August 6, Doctor Jordan had left a memorandum of figures on witness ’ desk showing the amount and terms that witness could buy the property for by assuming a building and loan mortgage of $13,000. The total amount as shown by the memorandum was $17,000, and by including the mortgage this made $30,000. On the morning of August 7, upon receiving positive assurance from Niven that he could obtain the property for $29,000, appellant made the written bid for that amount. This amount was raised to $30,000 in the afternoon. In a conversation with Niven that afternoon, Niven told appellant that the other parties had bid the sum of $30,000, and he wanted witness to raise this. Witness told him that he had .already raised his bid $1,000 more than he thought the property was worth, and then Niven told him that the stockholders were his friends,' and that if he would make his bid $30,000 he would see that the building was knocked down to him at that price. After discussing it for some time and Niven assuring him that he could get seven or eight thousand dollars for the contents, appellant, being ignorant of the cost of the doctor’s stuff, thought maybe Niven was right, and then changed-his bid from $29,000 to $30,000. Appellant then detailed a conversation which he had with Doctor Jordan on Tuesday evening thereafter when he went with Doctor Jordan to look over the building and other houses on the lot. He stated that Doctor Jordan claimed so much of the stuff that Niven hadn’t told appellant about that he (appellant) “felt kind of sore,” but didn’t say anything. On the next day appellant was informed that there were only two bids for the property; one, his bid of $30,000, and the other a bid for $27,500. Appellant took the advice of his lawyer, found that the check he had given had not yet been paid, and he then arranged to stop the payment. Appellant then instructed his lawyer to inform the attorney and agents of the appellee that he would not take the property. Appellant also informed the appellee’s attorney that he would not take the property and gave his reasons. About six or seven weeks thereafter the appellee’s attorney came with some papers and asked appellant if he was ready to close up the ' deal. Appellant informed him that he thought the deal was over. The attorney requested appellant to see Niven again. Appellant saw Niven, and he said that he was very sorry that he had raised appellant $1,000 on the hid and felt mighty mean about it. He told appellant that he had done everything he could with the board of directors to get them to take the $29,000, but could not succeed. Witness further stated that on his first trip with Doctor Jordan to examine the building and its contents, Doctor Jordan made no reservations, and that witness understood that all of the things that Doctor Jordan was pointing out went with the sanitarium, the surgical instruments, hospital equipment and other things; that he would not have made the proposition to purchase the building at $30,000 if he had known or had been told that Doctor Jordan claimed all the things which he afterward claimed, as they were the best and most valuable of the contents that Niven had represented that he would get seven or eight thousand dollars for. Appellant was influenced to raise his bid to $30,000 because of the statement of Niven that other persons had offered that sum for the property. Appellant denied that he had told Doctor Jordan that he would give $30,000 for the property, and he had not said anything which would lead Jordan to believe that he would make an offer of that amount. The greatest amount appellant had offered was $28,000. Appellant had known and done business with Niven a long time, and had confidence in his judgment and reputation. When Niven told him he had been offered $30,000 by other persons, he believed him. Appellee had never given him any notice of the acceptance of his offer except the verbal statement of Doctor Jordan and Mr. Niven. Witness further testified on cross-examination that he did not know why Niven wanted him to raise his bid to $30,000 when he had already made a bid for that amount, but supposed that Niven was doing him a favor. When appellant went through the building with Doctor Jordan on Tuesday after appellant had been informed that his bid had been accepted, when Doctor Jordan pointed out the things that he claimed, appellant did not challenge the claim of Doctor Jordan because he thought perhaps Doctor Jordan was right and owned all he claimed. Appellant also stated that his plumbing records showed that he had repaired a sewer on the property before purchasing the same.

The above are substantially the facts upon which the chancellor rendered a decree in.favor of the appel-lee against the appellant for specific performance of the contract according to the prayer of appellee’s complaint, and against the bank for the payment of the check given by the appellant to the appellee as a cash payment on the purchase. From that decree is this appeal.

The chancellor found the facts to be as they were set forth in the apellee’s complaint. There is a sharp conflict in the testimony upon some of the material issues of fact, and we are convinced that the preponderance of the evidence shows that the chancery court was correct in its findings.

The statute of frauds was not pleaded, and it must therefore be taken as conceded that the written bid of the appellant for the property, accompanied by his check and its acceptance by the board of directors and stockholders of the appellee in a meeting duly called for that purpose, constituted a completed executory contract for the sale of the property in controversy. “The remedy of specific performance may be granted to a vendor of real estate.” Wilkins v. Eanes, 126 Ark. 339-340-342. The appellee therefore had the right to call upon the appellant to spécifically perform this contract unless the appellee, through its duly authorized agents who were conducting the negotiations in its behalf, made fraudulent representations concerning the property, or such representations as, even though not fraudulent in fact, were nevertheless of such character as to deceive and mislead the appellant, and such as would constitute a fraud in law against the rights of appellant and render it inequitable to compel him to perform his contract. “The contract must be free from fraud, misrepresentation, mistake, or illegality. It must be perfectly fair, equal and just in its terms and in its circumstances.” 4 Pomeroy’s Equity Jur. 1405; Cleavenger v. Stearnes, 53 S. E. 593.

An untrue statement of a material fact will prevent specific performance, irrespective of party’s intent to deceive, where the party relied upon such misrepresentation. Taliaferro v. Boyd, 115 Ark. 297; Grant v. Led-widge, 109 Ark. 297.

Applying the above well-established principles to tht facts of this record, we are convinced that the appellant had no right to refuse to perform his contract. Neither Doctor Jordan nor Mr. Niven, who conducted the negotiations on the part of the appellee with the appellant leading to the latter’s bid and acceptance thereof, by appellee, occupied any legal relation of confidence and trust to the appellant. He was dealing with them at arm’s length. True, appellant and Niven testified that appellant 'had consulted Niven as a trusted friend and in a confidential way, but that did not create any legal relation of trust and confidence between them. Appellant knew that Niven was the president of the appellee. Niven and Jordan were representing the appellee, and, according to their testimony, which we are unwilling to discredit, they made no representation to the appellant which was false in fact, and it is clear to us that they did not intend to mislead or deceive him. We do not discover any collusion between them to have the appellant increase his bid from $29,000 to $30,000. It appears that Niven had told appellant that he thought $29,000 would buy the property, and upon that suggestion appellant lodged a bid with him for that amount. It appears also that appellant had told Jordan that he was willing to pay $30,000 for the property. Jordan asked Niven on the morning of the day of the sale if he had received any bids and Niven replied in the affirmative and told him that he had received a bid fox $29,000. Whereupon Jordan stated that he had a better bid, but, according to Niven, Jordan did not inform Mm who had made the hid for the amount thereof. Upon receiving such information from Jordan, Niven went back to the appellant, thinking that he wanted the property, and in good faith believing that some one else had bid more than appellant, informed the latter that there was a better bid. Appellant then requested Niven to act for him, which Niven refused to do, and asked appellant (himself a member of the board) to attend the meeting and take care of Ms own bid. Thereupon, the appellant increased his bid to $30,000.

It is true that Jordan testified that Niven told him on Saturday morning that appellant had offered $29,000, and that he thereupon informed Niven that appellant had offered him $30,000. It is quite immaterial as to which of these witnesses was correct, but it occurs to us that the testimony of Niven was more reasonable; that is, that he was not informed that appellant was the man who had offered Jordan the $30,000. For immediately after he was informed that there was a bid of $30,000, Niven went back to the appellant and informed him of that fact in order that appellant might increase his bid, if he wanted the property. It was the duty of Niven and of Jordan, representing the appellee, to get the best price possible for the property, and if, without taldng any undue or- unfair advantage of the appellant, he was induced to bid $30,000 for the property, he should not be allowed to repudiate his contract to purchase for that sum simply because he ascertained afterward that he might have obtained the property for $29,000, if Niven had not understood from Jordan that there was a better bid and so informed appellant. Niven states that he was perfectly innocent in this transaction, and we are disposed to believe him. Since he thought he was the innocent cause of appellant’s raising his bid, we can readily understand how he was anxious for the board to accept appellant’s bid of $29,000. But the board was not willing to do this, and it was justified in not doing it, because, according to the testimony of Jordan, appellant had before expressed a willingness to buy the property for $30,000.

Such being the case, Niven, not knowing that it was the bid of appellant himself and honestly believing that it was the bid of some one else, did not misrepresent a fact when he informed appellant that there had been a better bid. Appellant himself, according to the testimony of Jordan, had made a better bid. We do not see that the board was at fault in this transaction or that the appellant has the right to complain of it for the reason that he was invited by Niven who gave him the information to be present at the meeting and take care of his own bid, which he failed to do. It occurs to us, under the circumstances, that when appellant increased his bid from $29,000 to $30,000 he was willing to pay that price for the property, and that no imposition whatever was practiced upon him. It is clear that the property was worth around that figure, and the price he agreed to pay therefor was not excessive or oppressive. So far as any misrepresentation concerning the personal property is concerned, the decided preponderance of the evidence shows that nothing was said by Niven or Jordan that was untrue in fact, and nothing concrning the occurred that was calculated to deceive or mislead appellant.

Wo conclude, therefore, that, upon the making and tendering by appellee to appellant of a warranty deed convoving perfect title to appellant, he should 'be required to fulfill his contract.

The decree of the chancery court so holding is correct, and it is therefore in all things affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Estes v. Lamb & Company.
    Opinion delivered June 27, 1921.
    1. Sales — parol reservation of title. — A parol reservation of title in personal property, made at the time of its sale, is valid, and is effectual as against a bona fide purchaser for value, to the same extent as such a reservation in a written contract.
    2. Sales — conditional sale — effect of executing note. — The giving of a note to represent the purchase price, with sureties, does not change a verbal contract which would otherwise be one for a conditional sale with reservation of title to one of absolute sale.
    3. Sales — conditional sale. — While the buyer in a conditional sale acquires an interest in the property which he may sell or mortgage, without the seller’s consent, the latter’s right to recover the property if the purchase money was not paid could not be prejudiced by such sale or mortgage.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    Appellees brought this suit in equity against appellants to obtain judgment for an account due them and for the foreclosure of a chattel mortgage given to secure the same.
    In their complaint they alleged that Albert Estes executed a chattel mortgage on two mules to secure an account for merchandise and supplies to be furnished him in 1919; that subsequently Estes sold the mules to J. A. Coward; that J. A. Coward sold the mules to J. H. Coward, and that said mules are now in the possession of J. H. Coward.
    Appellants defended the suit on the ground that, prior to the execution of the mortgage by Estes to appel-lees, J. A. Coward had sold the mules to Estes and had reserved title in them until they were paid for.
    According to the testimony of appellees, they constitute a mercantile firm at Bono, Ark., and on March 11, 1919, Albert Estes executed a mortgage on the mules in controversy to them for supplies to be furnished him in making a crop. Estes did not inform them that Coward had sold him the mules and had reserved title in himself until they were paid for. On the other hand, Albert Estes testified that, at the time he executed the mortgage, he told appellees that he had purchased the mules from Coward, and that Coward had retained title in them until they were paid for, and that he had paid nothing toward the purchase price thereof.
    Both Albert Estes and J. A. Coward testified in regard to the execution of the contract, and their testimony is in all essential respects the same. According to their testimony, J. A. Coward sold to Albert Estes the mules in controversy, a wagon, harness and tools for $730 and retained title in the property until the purchase price was paid. It was a part of the agreement that Estes should execute a note for the purchase price to be signed by Arthur Smith and Joe Smith.
    Pursuant to the agreement, in a few days Estes brought back and delivered to Coward his note for the purchase price of the property signed by Joe and Arthur Smith. The note is as follows:
    “$730.00 ‘ 1-22-1919.
    “Ten months after date, we promise to pay to the order of
    J. A. Coward,
    seven hundred and thirty dollars, for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of ten per cent, per anuum, and if the interest be not paid annually to become as principal and bear the same rate of interest.
    “Albert Estes, A. D. Smith, Joe Smith.”
    Arthur Smith was present when the contract was made and corroborated the testimony of Coward and Estes. He stated that he and his brother would not have signed the note if Coward had not retained title in the property until the purchase price was paid. Estes was unable to pay the note when it became due, and by agreement with Coward, turned over to him the mules in question. J. A. Coward then sold the mules to his brother, J. H. Coward, who had possession of them at the time ap-pellees sought to foreclose their mortgage and recover possession of them for that purpose.
    On April 25,1919, J. A. Coward transferred the note copied above as collateral security to the Jonesboro Trust Company.
    The chancellor found the issues in favor of appellees, and a decree was entered in their favor for the amount sued for and for a foreclosure of their mortgage on the mules.
    The case is here on appeal.

      H. W. Applegate, for appellants.
    I. The right of a vendor to retain title by verbal contract, and if he so desires to take additional security, has long been well established. 47 Ark. 365; 68 Id. 230 (234); 48 Id. 160; 108 Id. 442 (446); 123 Id. 132, ■
    2. The proof is conclusive that J. B. Lamb & Company took their mortgage with notice that J. A. Coward had retained and still owned the title to the mules and eliminates any doubt of the fact. Lamb & Company knew of the mortgage and took with notice of it and subject to it. 11 C. J. 522; 5 A. L. R. 391; 20 R. C. L. 346. Lamb & Company had plenty of time to make inquiry, because the note and mortgage which they took from Albert Edwards was not for value immediately paid but was for supplies to be furnished from time to time in the future.
    It is true that where one purchases personal property and the vendor retains the title until the purchase money is paid, the vendee has the right to sell or mortgage his equity, but here the vendee, Estes, never had any equity, as he never paid anything upon the purchase price of the mules. But it is also true that vendor’s right to recover the property, if the purchase money is not paid, is not prejudiced by sale or mortgage. 108 Ark. 442. The assignment as collateral security of a note given as additional security for the purchase price of property conditionally sold does not affect the right of a seller to take possession of his property in case of default or failure of the payment of the purchase price. 38 Ark. 2i85; 50 Id. 256; 29 A. & E. Ann. Cases (1916 A) 265; 70 Miss. 649; 12 So. Rep. 857; 48 Ark. 160. The law of this case is plain and well established and the court erred in its declarations of law.

      Sloan & Slo.cm, for appellees.
    1. Since a note was given for the purchase money, a contract for the retention of title by parol can not be established. An oral conditional sale is valid in Arkansas, but it is only when the entire transaction was oral. If the transaction be reduced to writing, other conditions can not be shown by parol evidence. 6 Ind. 300; 29 Ark. 438.
    2. After having indorsed and transferred the purchase money note as collateral security to the bank, Coward- had no authority to either accept payment or to discharge it by retaking the property. J ones on Coll. Sec. (3 ed.), § 89; 41 Ark. 419; 94 Id. 387; 136 Ark. 215; 127 Id. 545; 120 Id. 616; 111 Id. 263; 105 Id. 152; 118 Id. 316; 113 Id. 585; 72 Miss. 608; 18 So. Rep. 364; 38 Ark. 285.
    3. Estes, after having executed the mortgage to Lamb & Company, did not have the right to contract with Coward for a discharge of the purchase money note by return of the property and the payment of one hundred dollars. The vendee in a conditional sale contract acquires an interest in the property sold that he may either sell or mortgage subject to the prior interests of the conditional vendor. 108 Ark. 442; 163 S. W. Rep. 157; 97 Id. 432. See, also, 117 Ga. 919; 43 S. E. Rep. 982.
    4. The transfer of the note as collateral security by Coward to the bank constituted an election on his part to affirm the sale and treat the debt as absolute. 66 Ark. 240; 65 Wash. 650; 118 Pac. 817; 37 L. R. A. (N. S.) 71.
    5. Coward is estopped, after having indorsed the note to the bank as collateral security, to assert any alleged rights under an alleged oral retention of title, and this was a fraud on the bank. 177 Pac. 340; 3 A. L. Rep. 235, 239; 37 L. R. A. (N. S.) 71; 118 Pac. 817.
    The lower court was unquestionably right in holding that Estes and Coward,- who had parted with their interest in the subject-matter, could not enter into an agreement destructive of the rights -of their transferees.
   Hart, J.

(after stating the facts). Following the rule of the common law, this court has held that a parol reservation of title in personal property made at the time of the sale is valid, and that such oral reservation of title is effectual as against a Iona fide purchaser for value to the same extent as such a reservation in a written contract. Jones v. Bank of Commerce, 131 Ark. 362. To the same effect see Begrist v. Crabtree, 131 U. S. 287.

Counsel for appellees recognize this to he the rule, but claim that the 'rule is not applicable in the present case because, at the time the agreement for the oral reservation of title was made, it was also agreed that the purchaser should execute his note for the purchase price, and that the note executed pursuant to the agreement is a plain note of hand signed by the purchaser with two sureties.

It is generally held that the giving of a note to represent the purchase price does not change a contract which would otherwise be one for a conditional sale to one of absolute sale. International Harvester Co. v. Pott, 32 S. D. 82, Ann. Cas. 1916 A, p. 327 and note at p. 331.

In Bierce v. Hutchins, 205 U. S. 340, it was expressly held that the taking of notes for the purchase price and the taking of collateral security did not in any way qualify the conditional sale features of such contracts. In that case the court said: “Parties can agree to pay the value of goods upon what consideration they please, * * * and when a purchaser has possession and the right to gain the title by payment he can not complain of a bargain by which he binds himself to pay and is not to get the title until he does.”

The giving of a promissory note for debt is no payment unless by agreement of the parties the notes are taken in payment of the debt. Triplett v. Mansur-Teb-betts Implement Co., 68 Ark. 230. In that case the court held that where goods were sold on condition that the title shall remain in the vendor until the purchase notes are paid, the execution of renewal notes for the debt is not a payment unless by agreement of the parties the notes are taken as such.

It is true that in all the cases above cited the contracts of conditional sale were in writing, but the courts do not seem to have made any point of that fact. The cases all turn on tlie rule that the giving of the promissory note does not discharge the debt for "which it was given unless snch be the express agreement of the parties. It only operates to exténd the time of payment nntil the note is due. Our own court has not recognized any difference in this respect between oral and written contracts for the reservation of title for the conditional sale of personal property.

In Rex Buggy Co. v. Ross, 80 Ark. 388, Boss bought a carload of buggies from the Bex Buggy Company with the understanding that the title to the property should remain in the vendor until the purchase price was paid. Boss agreed to execute his promissory note for the price of the buggies upon receipt thereof payable in four months after date. The court held that, upon executing the notes, he was entitled to the possession of the buggies and to retail them in due course of trade until he failed to comply with the conditions of the sale to him. The statement of facts does not show whether the contract for the conditional sale of the buggies was a written or oral one.

The undisputed evidence establishes the oral contract of sale in the instant .case with the reservation of title in Coward until the property , was paid for. The undisputed evidence also shows that Estes did not pay for the mules and by agreement turned them back to Coward. The evidence also shows that the agreement t.o execute the note was made at the same time the oral contract for the conditional sale was made.

The mortgage to appellee was executed subsequent lo the contract of conditional sale between Coward and Estes. Estes acquired an interest in the property which he could sell or mortgage to appellees without the consent of Coward, but Coward’s right to recover the property if the purchase price was not paid could not be prejudiced by such sale or mortgage. Clinton v. Boss. 108 Ark. 442. Neither was the right of Coward affected by the fact that he transferred to the bank as collateral security the note given by Estes for the purchase price of the property. The reservation of title in the instant case appears from the oral contract for the conditional sale, but not in the purchase money notes. In such cases the seller may transfer the notes as collateral security and on default of the buyer retake the property. The reason is, he is interested in the payment of the notes so as to relieve him from liability as indorser and he therefore has the right to retake possession of the property. 35 Cyc. 702; McDonald Automobile Co. v. Bicknell (Tenn.), Ann. Cas. 1916 A, 265, and McPhearson v. Acme Lumber Co., 70 Miss. 649, 12 So. R. 857.

No complaint is made that a judgment is rendered in favor of appellees against Estes for the amount he owes them.

From the views we have expressed, it follows that the chancellor erred in rendering a decree for appellees, and for that error the decree must be reversed and the cause will be remanded with directions to enter a decree in favor of J. H. Coward for the possession of the property and for further proceedings not inconsistent with this opinion.


author: Hart, J. McCulloch, C. J.

text:
    Ferrell v. Wood.
    Opinion delivered June 27, 1921.
    Vendor and purchaser — breach of contract to convey homestead. — One is not liable in damages for breach of his contract to convey his homestead, where the wife refuses to join in the conveyance.
    Appeal from St. Francis Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Mamm & Mann, for appellant.
    Crawford & Moses’ Digest, § 5542, does not apply to an executory contract for a future sale of a homestead, but only to formal instruments which pass some title to the homestead at the time .of execution. Conveyances and mortgages are specifically set out, and the general words, “or other instruments,” calls for the application of the doctrine of “ejusdem, generis.” It is an old and settled rule of statutory construction which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong. It can not he said that an executory contract is of the same class as instruments which by their very nature affect the title to the property described in them. Conveyances and mortgages are evidences of consummated and executed contracts which pass title, or least place liens on property, while contracts such as the one in question only contain promises to perform certain acts in the future and do not in any way affect the actual title to the property which is the subject of the contract. This court has accepted the doctrine of “ejusdem gen-eris” in a number of cases, and it is the settled rule of law in this State. 95 Ark. 114; 74 Id. 510; 114 Id. 47. The rule is especially applicable to the statute in question, as the Legislature especially limited ‘ ‘ other instruments” to those affecting the homestead.
    Had the husband abandoned his homestead before the date set for the consummation of this contract and the deeding of the property, there can be no question but that the contract could be enforced. This he could do without his wife’s concurrence, and she need not join in the conveyance of an abandoned homestead. 101 Ark. 101; 68 Id. 76; 104 Id. 313; 137 Id. 309. The evident intention of the statute quoted is to protect the wife in the homestead right, so that the title to the sanie could not be affected by any instrument executed by her husband in which she did not join. This purpose is not defeated by this suit, as a judgment obtained against the husband c'ould not affect the homestead and would not be a lien on it.
    At common law a husband could convey the homestead without the concurrence of the wife, and the fact that she did not join in the alienation of the homestead did not affect the validity of the sale. The statute does not apply to executory contracts, and the old rule still holds good. 37 Ark. 29i8. Such a contr act is not void and has been sustained by this court. 224 S. W. Rep. 484. The Alabama statute is similar to ours and the courts of that State hold that the statute only applies to instruments which are perfected by delivery and operate as conveyances. 66 Ala. 345; 158 Ala.; 132 Am. St. R. 25. See, also, 168 N. W. 1101; Stet.; 185 Mo. App. 45; 171 S. W. 983. Other courts follow the rule and require the husband to answer for .damages for breach of contract. 234 Ill. 276; 84 N. E. Rep. 906; 28 Tex. 523; 94 S. W. 115. The case should be reversed.

      C. W. Norton, for appellee.
    A majority of courts hold contracts like this are void and the case is settled by 4 A. L. R. 1272.
   Hart, J.

H. A. Ferrell made a contract in writing with Fletcher Wood to purchase the homestead of the latter. Wood’s wife did not sign the contract. Upon the refusal of Wood to carry out the contract, Ferrell instituted this suit in the circuit court against him to recover damages.

The judgment of the circuit court was in favor of Wood, and Ferrell has appealed.

A majority .of the court is of the opinion that the .judgment of the circuit court was correct. This court has uniformly held that, under our statute, a deed or mortgage purporting to convey the homestead by a married man is void unless his wife joins in the execution of the conveyance. Pipkin v. Williams, 57 Ark. 242, and Oliver v. Routh, 123 Ark. 189, and cases cited.

This court has never decided the precise question ■raised by the appeal. The courts are divided on the question of whether an action for damages may be maintained against a husband for a breach of contract to convey his homestead where his wife did not sign the contract. The authorities on both sides of the question are cited and to some extent reviewed in a case note to 4 A. L. R. at page 1272. Courts favoring liability for a breach of such a contract say that it is not unlawful for a person to contract to sell and convey something lie does not own but expects to acquire, and that, if he unquali-fiedly undertakes to do that which later he finds he can not perform, he must respond in damages. There is a difference between such a contract and a contract to convey the homestead.

In the first instance, if the contracting party should acquire the land which he had agreed to convey to another, he could carry out the contract, and therefore should respond in damages for a failure to do so. A contract by a husband to convey his homestead is a mere nullity unless the wife signs the contract. This court expressly held in the case of Waters v. Hanley, 120 Ark. 465, that the husband can not make a contract to convey the homestead which will be binding unless his wife signs it. The court pointed out that if such a contract would be obligatory upon the wife the statute prohibiting the sale of the homestead without the consent of the wife could be easily evaded and would be of no force.

Again, it is urged that to hold that the husband can not be made to respond in damages for the breach of a contract to convey his homestead unless signed by his wife would have the effect to embarrass him in the sale thereof. We can not see how the failure to make him respond in damages would embarrass him any more than to hold that his contract to convey the homestead is not valid unless his wife signs the same. If any embarrassment is 'Caused in either event, it is caused by the passage of the statute, and not by placing a construction on it which its language clearly imports. If a man can not make a contract agreeing to convey his homestead that will be valid or binding without his wife’s concurrence, it is difficult to see upon what reason he should be made liable to respond in damages for a breach thereof.

As said by Judge Carland in Mundy v. Shellaberger, 161 Fed. 503, the reason for holding that a contract to convey the homestead without the concurrence of the wife is null and void and can not be used as a basis for the recovery of damages, is clearly and forcibly stated by Judge Mitchell in Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817. We quote from his opinion as follows :

“But, notwithstanding some respectable authority to the contrary, it seems to us that to hold that a person is liable in damages for the nonperformance of a contract which he is under no legal obligation to perform would be illogical, and without analogy or precedent in the law. The very proposition involves a legal inconsistency. We think that on legal principles such a contract must be held void for all purposes, and not to constitute the basis of any action against the obligor. There are also strong practical considerations in favor of this view. While it is true, as counsel suggests, that to hold the husband liable for damages would not deprive him or his family of their homestead, yet to force him to the alternative of securing his wife’s signature to the conveyance, or of being mulcted in damages for not doing so, and to place the wife in the dilemma of either having to sign the deed or see her husband thus mulcted in damages might, and naturally would, often indirectly defeat the very object of the statute. There is nothing unjust to the obligee in holding such a contract absolutely void for all purposes. He is bound to know the law, and he always has actual notice, or the means of obtaining actual notice, of the fact that the land with which he is about to deal is a homestead.”

But it is insisted that this rule is contrary to the principles announced in Branch v. Moore, 84 Ark. 462. That was a case where a broker sued .the owner of a homestead to recover commissions for effecting a sale thereof, and the court held that it was no defense to the action that the land constituted the defendant’s homestead. Upon this branch of the case we quote from the opinion as follows:

“Appellant contends that the land constituted his homestead, and he could not lawfully authorize the appel-lee to sell it without his wife joining him in executing an instrument for that purpose, hut this contention is not tenable. Appellee is not seeking to enforce any contract to sell or convey the land, or any lien thereon. ■ The land has been sold. No party is seeking to avoid the sale. Appellee is asking only for compensation for services rendered.”

There the broker was suing for services he had performed in effecting a sale of the homestead, and his contract was collateral to the contract of the husband to convey the homestead without the concurrence of the wife. Here the breach of the contract of the husband to convey the homestead is made the basis of the suit. As above stated, if the contract is a complete nullity, it was void from its inception and can not be made the basis of the cause of action.

It follows that the judgment will be affirmed.

McCulloch, C. J., and Smith, J., dissent.

McCulloch, C. J.

(dissenting). The authorities on the question involved in this case are nearly equally divided, which leaves us free to follow our own views, uninfluenced by the precedents established by other courts. Two cases which may be selected as leading unes on this subject are Weitzner v. Thingstad, 55 Minn. 244, supporting the conclusion now reached by the majority of this court, and White v. Bates, 234 Ill. 276, announcing the contrary conclusion. I think the reasoning of the Illinois court is sound.

The statute' (C. & M. Digest, $ 5542) does not declare that an executory contract for the sale of a homestead is void. It merely declares that a “conveyance, mortgage or other instrument affecting the homestead of any married man” shall not be valid “unless his wife joins in the execution of such instrument and acknowledges the same.” Such a contract does not involve moral turpitude in its performance, nor does it offend against any public declared policy, though the statute fixes a limitation on the husband’s right to convey the homestead. He can do so only with the consent of the wife. A conveyance of the homestead without her consent is void, but, since the statute itself does not declare invalid the husband’s executory contract to sell the homestead, I fail to see the force of the contention that the contract is void because a conveyance in performance of a contract is invalid unless the wife joins in it. It would be different, of course, if the contract was one involving moral turpitude, for no rights can accrue under a contract to do an unlawful or immoral act. Such is not the effect of a contract to sell and convey the homestead. The obligor merely undertakes in such a contract to sell and convey certain property in a manner prescribed by law; and if he fails to comply, he should be held liable for all damages resulting from his breach of the contract. The effect is the same as if the contract were one to sell and convey property to which the obligor had no title at the time. Though beyond his power to perform the contract, he is liable in damages for its breach. The fact that such a contract would embarrass the wife and cause her unwillingly to join in the conveyance of the homestead, rather than to see her husband mulcted in damages, affords no sound reason for the court to declare the contract void, though it might appeal strongly to the Legislature on a proposal to enact such a law.

This court has heretofore decided that a contract to pay an agent’s commission under a contract for sale of the homestead is valid. Branch v. Moore, 84 Ark. 469; Chandler v. Gaines-Ferguson Realty Co., Ark. 262.

The conclusion now announced by the majority is, I think, in conflict with those eases, for, if a contract for the sale of the homestead is void, then a contract for payment of a commission on such sale is likewise void. Both contracts should be controlled by the same principles.

I do not think it is important whether or not the wife joins in the contract to sell the homestead. She is not required to join in such a contract to make it valid. She must, in order to make such a contract offective, join in the execution of the conveyance a,nd acknowledge the s.ame,


author: Símit-h, J.

text:
    Martin v. Hargrove.
    Opinion delivered June 27. 1921.
    1. Equity — appointment of receiver of road district. — On a complaint by landowners in a road improvement district against the commissioners of such district, alleging that the commissioners had suspended work on the road improvement, an order of the chancery court substituting receivers for the commissioners and directing such receivers to take charge of the affairs and funds of the district and to complete the road is void on its face for want of jurisdiction.
    2. Certiorari — review' of void judgment. — Where the chancéry court exceeded its jurisdiction in substituting its own receivers for the commissioners of a road improvement district, certiorari is an appropriate remedy to bring such order before the Supreme Court for review.
    Certiorari to Franklin Chancery Court; J. V. Bour-land, Chancellor;
    orders quashed.

      Dave Partain, G. C. Carter and G. L. Grant, for petitioners and appellants.
    The law as announced by this court in 142 Ark. 21-28 settles this case, and the chancellor was without power to oust the commissioners and turn the district and its affairs over to receivers. The general rule is that' the appointment of receivers must be ancillary to the main cause. 23 R. C. L. 16; 178 Pac. 438. The commissioners are the duly and legally constituted officers of the district, and should have charge of its affairs, and are the only ones authorized to act for the district, create debts, execute obligations and manage its affairs. Act No. 588, Acts 1919, vol. 2, p. 2157. No fraud or misconduct is charged or shown, and the law is settled in 142 Ark., pp. 21-28; 166 Pac. 770. This court is authorized to grant certiorari and quash vacation orders and decrees of the chancellor, and its orders are final and can not be appealed from, and certiorari is the only remedy. 146 Ark. 314; 139 Id. 402-3; 103 Id. 571.

      J. D. Benson, J. P. Clayton and Evans & Evcms, for respondents and appellees.

      The chancellor had jurisdiction, and 142 Ark. 21-28 is not in point. The cases cited by petitioners (116 Ark. 314; 139 Id. 402 and 103 Id. 571) do not aid petitioners in this case.
    Courts of chancery have inherent power over trustees and the administation of trusts, and may make the necessary orders in vacation. The court had jurisdiction. C. & M. Digest, § 8600. This has been the law for sixty years and can not be questioned. See, also, C. & M. Digest, § 8606; 23 R. C. L., p. 32; "Wkitehouse, Eq. Practice, vol. 1, § 479; Clark on Receivers, vol. 1, p. 119. The appeal should be dismissed, and the petition for cer-tiorari denied.
   Símit-h, J.

This is a petition for certiorari by the commissioners of Road Improvement District No. 1 of Franklin County, Arkansas, to bring up the proceedings in a certain cause now pending in the- chancery court of Franklin County. The suit in chancery was commenced by certain landowners in Road Improvement District No. 1 of Franklin County, and the complaint contained substantially the following allegations: Road Improvement District No. 1 was created by special act No. 588 of the Acts of the General Assembly of 1919. The commissioners of the district let a contract for the construction of the improvement within 240 working days from the 1st day of July, 1919. The commissioners had issued and sold $210,000 in bonds, and had expended the proceeds of the sale thereof without completing the road in the western end of the district after having fully completed the roads in the eastern end thereof. Enough work had been done on the road in the western end of the district to make the existing road impassable. The commissioners had promised to repair the road and make it passable, and had promised to complete the road within a specified- time, but neither promise had been redeemed, and the commissioners had failed to institute suit against the sureties on the bond of the contractor for the breach of his contract to complete the road. There was a prayer that receivers be appointed to take over the affairs of the district and complete the road.

The commissioners filed a demurrer and an answer. In the answer they denied they had been guilty of any fraud, mismanagement, or improper conduct, and denied that they had abandoned the construction of the road. They admitted work had been suspended, but alleged that this was temporary, and was due to the failure to receive promised State and Federal aid, and that the improvement would be completed when this aid was received. Attached to this answer was a detailed statement of the district’s finances and a tender, for examination, of all its hooks, papers and vouchers.

On March 21, 1921, the chancellor, sitting in chambers in the city of Fort Smith, heard the application for the appointment of receivers for the district and granted it. This application was heard on the pleadings and exhibits and on oral evidence. After appointing the receivers, the court made an elaborate order for their direction. This order directed the receivers to proceed as a hoard and for a majority to act, and to receive from the commissioners all papers and records of every kind, and to have an audit thereof made, and to issue and sell receiver’s certificates hearing interest at a rate not to exceed 7% per cent., and to create indebtedness and make contracts of not more than $250’ without applying to the court for authority so to do. The receivers were further ordered to locate the contractor and to notify him by registered mail to complete the road, to make immediate arrangements to carry on the work independent of the contractor if the contractor did not resume work under his contract. As a means to this end, the receivers were especially directed to assume control of the road machinery and other equipment of the contractor until the further orders of the court. The contractor was not made a party to this proceeding. The receivers were directed to apply for, to receive and to expend the State and Federal aid apportioned to this road district. In fine, the receivers were substituted for the commissioners, with general directions to complete the improvement as authorized by special act 588 under the directions and supervision of the chancery court.

After the institution of this proceeding to cancel the above order of the court, which, as has been stated, was made on March 21, 1921, the court made a supplemental order amending the order of March 21. This last order was made on June 2, and it has been brought up by certiorari. This last order elaborates, to some extent, the directions of the first, but is important chiefly because of its recital that the court’s orders in the premises were made with the consent of the commissioners. The commissioners seek, by affidavit, to show that this last order was made without notice to them, and that all the orders which have been made by the court were made without their consent and over their protest.

' These questions of fact can not be considered by us in this proceeding as we look only to the face of the orders which the proceeding seeks to quash. The orders themselves are void on their face. The question presented is conclusively decided by the case of Paving District No. 5 v. Fernandez, 142 Ark. 21.

In that case the chancery court made an order directing its receiver to take charge of the affairs and funds of Paving District No. 5 of the city of Fort Smith. We reversed that decree, and in doing so held that the chancery court was without authority to remove these commissioners by appointing a receiver. The reasoning of that case applies with full force here and need not be repeated.

Inasmuch as the orders of the court exceed its jurisdiction, certiorari is an appropriate way to bring them before this court for review. Monette Road Imp. Dist. v. Dudley, 144 Ark. 184; Reed v. Rradford, 141 Ark. 201; Rudd v. Burnett, 138 Ark. 80; Hilger v. Watkins Medical Co., 139 Ark. 400.

The orders and decrees of the court below are therefore quashed.


text:
    Cox v. State.
    Opinion delivered June 27, 1921.
    1. Indictment and information — charging several acts as one offense. — Where the statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered as representing a phase of the same transaction, they may be charged conjunctively in a single count, as constituting but a single offense.
    2. Intoxicating liquors — indictment.-—Under Crawford & Moses’ Digest, § 660, the manufacturing and the being interested in the manufacture of intoxicating liquors constitute different phases of the same transaction, and may be charged conjunctively in the same indictment'.
    3. Intoxicating liquors — aiding and assisting in manufacture. —On a trial for manufacturing or being interested in the manufacture of intoxicating liquors, an instruction that accused was guilty if he was assisting in the manufacture of such liquors, or if he was not assisting in the manufacture, but was present and ready and consenting to aid and abet the manufacture, was proper, under Crawford & Moses’ Digest, § 2311, as the offense charged is a felony under .§ 6160, Id.

    4. Criminal law — argument of prosecuting attorney. — Argument of the prosecuting attorney that it was inferable from defendant’s failure to impeach a State’s witness that defendant was unable to impeach him was not prejudicial error, as the inference might be drawn, although an extravagant one.
    Appeal from Pike Circuit Court; James S. Steel, Judge;
    affirmed.

      W. T. Kidd, for appellant.
    1. The indictment charges more than one. offense, and it was error to refuse the motion to require the State to elect. 84 Ark. 136; 201 S. W. 845; 135 Ark. 245; 37 Id. 408. An indictment must charge hut one offense. C. & M. Digest, § 3016; 118 Ark. 35. The State should have been required to elect which charge she will proceed under to prosecute. 33 Ark. 180; 32 Id. 203; 36 Id. 55; 58 Id.(By. Go. v. State).

    The indictment was defective under section 3028, C. ' & M. Digest; 5 Words and Phrases, p. 4344,

      ' ■ 2. Instruction No. 1 for the State was error, as it submitted two issues, .one of making and manufacturing liquor, and another of being interested in the making-and manufacturing of liquor. 112- S. W. 956.
    3. Instruction No. 2 for th'e State was unfair and prejudicial, as there was no evidence to sustain it. It is argumentative. Defendant was indicted as a principal, and not as an aider and abettor, and could not be convicted as a principal. 37 Ark. 274; 96 Id. 62; 22 Cyc. 455; 41 Ark. 173; 55 Id. 593.
    4. There is no testimony showing defendant’s guilt; that he was ever at the still, or even had knowledge that a still was in the vicinity, and he could not be indicted as a principal, and it was error to give the instruction asked by the State. 37 Ark. 274; 109 Id. 389; lb. 498.
    5. There were errors in the other instructions given for the State.
    6. The prosecuting attorney’s argument was improper, and was prejudicial. 101 Ark. 147.
    7. There is no evidence to sustain the verdict. Giving the evidence its strongest probative force, it is not sufficient.

      J. 8. Utley, Attorney General,, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. The indictment charges only one offense. 135 Ark. 245. The proper motion to require the State to elect was not made. 37 Ark. 408; 84 Id. 136; 201 S. "W. 845; 37 Ark. 410.
    2. There was no error in the instructions given for the State. They state the law. All persons aiding or abetting the crime are guilty as principals. 0. & M. Digest, § 2311; 104 Ark. 245.
    3. There is no error in the other instructions given for the State.
    4. The verdict is sustained by the evidence. All the facts and circumstances show that appellant was at least guilty of being interested in the manufacture of intoxicating liquor. 0. & M- Dig., § 2311; 104 Ark. 245,
   Hart, J.

Horace Cox prosecutes this appeal to reverse a judgment and sentence of conviction against him for a violation of our liquor laws.

The indictment charges that Horace Cox on the 15th day of January, 1921, “did unlawfully and feloniously make and manufacture, and was unlawfully and feloni-ously interested in the making and manufacture of ardent, vinous, malt, spirituous, intoxicating and alcoholic liquors,” etc.

The defendant filed a motion to require the State to elect upon which count it would proceed, and assigned as error the refusal of the court to require the State to make such election.

Counsel for the defendant relies upon the case of Oramlieh v. State, 135 Ark. 243. That case is not authority for the defendant, because the court reserved a ruling on the point now under consideration.

Again counsel rely upon the case of Chronister v. State, 140 Ark. 39. In that case the court held that the manufacture of wine is a separate and distinct offense from the sale thereof. It is true that the prohibition against manufacturing, selling and giving away intoxicating liquors, or being interested in the manufacture, sale or giving away thereof, is 'Contained in the same section of the statute. Crawford & Moses’ Digest, § 6160. But it does not follow that the holding in the Ghronister case just cited controls here. It is manifest that the manufacture of intoxicating liquors is a separate and distinct offense from the sale thereof, and they do not necessarily constitute parts of the same transaction. For instance, it would be unlawful to manufacture intoxicating liquors, reg*a.rdless of the fact of whether the maker intended to sell them, or to use the liquors himself. Again a person might be guilty of selling intoxicating liquors and have nothing to do with the manufacture thereof. On the other hand, while the offense of manufacturing intoxicating liquors consists of a series of acts, and the same person might be guilty of being interested in the manufacture thereof and yet not be guilty of manufacturing them, the different acts, where they are all parts of the same transaction, may be charged conjunc-tively in the same indictment. Where the statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered as representing a phase of the same transaction, they may be charged conjunctively in a single count as constituting but a single offense. Davis v. State, 50 Ark. 17. In that case the court held that an indictment under our statute which alleges that the defendant “unlawfully did sell and was unlawfully interested in the sale of one pint of alcoholic, ardent, and vinous liquors and intoxicating spirits, without having first procured a license,” is sufficient and charges but one offense. The rule applies here, and we hold that an indictment alleging the unlawful making and being interested in the manufacture of intoxicating liquors charges but one offense.

It is earnestly insisted that the evidence is not legally sufficient to support the verdict.

The defendant was a witness for himself. He denied having manufactured any intoxicating liquors, or being interested in the manufacture thereof. His testimony was corroborated by that of other witnesses. The legal sufficiency of the evidence to support the verdict must be tested by the evidence for the State.

According to the evidence for the State, the sheriff found a still about 250 yards from the house of the defendant. There were barrels there, but the still did not appear to have been operated recently. There had been a fire under it, and other evidences that it had once been operated. The sheriff watched this still at intervals for a week, and it was moved during his absence. The sheriff then found another still about a quarter of a mile from the defendant’s residence. After the defendant had been arrested, he admitted to the sheriff that he had hauled the still away, but denied having operated it.

A coca-cola dealer testified that the defendant had bought a coca-cola barrel from him along about this time. One of tlie barrels found at the still was a coca-cola barrel.

Another witness testified that he rode out of town with defendant along about this time, and that he had four sacks of sugar and some shorts. When they got a few miles out of town, the defenadnt got out of his wagon and went out to the side of the road and brought in some whiskey in a fruit jar which he had hidden there.

Another witness testified that he had seen the defendant with some whiskey about this time. It was also shown that the sugar and shorts were ingredients used in the manufacture of whiskey.

Still another witness testified that on one occasion he started in the direction of where the still was found, and the defendant warned him away.

This evidence was legally sufficient to establish the guilt of the defendant. It shows that there was a still near his residence which he admits that he hauled away. He had in his possession a large amount of sugar and some shorts, and these ingredients wore generally used in the manufacture of whiskey. It was fairly inferable that the still was operated and the ingredients purchased for the purpose of making whiskey. The defendant on one occasion warned persons from approaching the place where the still was located. After the sheriff commenced watching the still, he hauled it away during the absence of the sheriff. This at least tended to prove that the defendant did not wish the location of the still to be discovered, or the sheriff to find any one working at it. This testimony also tended to make him an interested party if the evidence showed that whiskey was manufactured. The fact that whiskey was found in his possession on two occasions about this time tends to show that whiskey was manufactured by some one, and the series of acts were so connected in point of time as to make it fairly inferable that whiskey was manufactured by some one in that locality at about that time, and that the defendant at least was interested in the transaction.

At the request of the State, the court instructed the jury that it might find the defendant guilty if he was at the still at the time the intoxicating liquor was being manufactured and was assisting in its manufacture, or, if he was not assisting, that he was present and ready and consenting to aid and abet in the manufacture of the liquor.

There was no error in giving this instruction. The manufaeure, or being interested in the manufacture, of intoxicating liquors is now a felony in this State. Crawford & Moses’ Digest, § 6160. All persons being present aiding and abetting, or ready and consenting to aid and abet, in any felony shall be deemed principal offenders and indicted and punished as such. Crawford & Moses ’ Digest, § 2311.

But it is insisted that the evidence does not show that the defendant was present when the liquor was made. The still was situated near his house. On one occasion he warned away some persons who wer.e about to approach it. He bought sugar and shorts in sufficient quantities to be used in making liquor. He admitted that he found the tracks of the sheriff leading to the still on one occasion. The sheriff was watching the still to see if any one made liquor there. The defendant after his arrest admitted that he hauled the still away. Liquor was found in his possession about that time. As above stated, all these acts connected together make it legally infera-ble that some one made liquor in that locality, and that the defendant was present aiding and abetting the act.

Objection is also made by the defendant to the court’s modifying certain instructions asked by him. We do not deem it necessary to set out the instructions. In the form asked by the defendant, they were argumentative, and the court properly modified them so as to eliminate this feature.

Error calling for a reversal of the judgment is also assigned to certain remarks made by the. prosecuting attorney in his argument to the jury. The remarks excepted to are as follows: “As stated to you in the open-bag statement of this case, I understand the defendant would undertake to impeach the witness, Welch Kelley, and you gentlemen noticed the host of witnesses that were sworn in this case, and realizing the diligence with which the attorneys for the defendant have presented his defense, it is only fair for me to argue and for you to infer that, if there was any witness in that territory who would testify that this witness was not worthy of belief, they would have produced him, and, since they have not done so, it is then fair for me to argue and you to infer that they could not do so.”

We do not think the remarks were prejudicial. The evidence shows that several witnesses were introduced in behalf of the defendant. The prosecuting attorney did not argue that the only inference that could be drawn from this fact was that if the defendant could have impeached the testimony of one of the State’s witnesses he would have done so. He only stated that it was fair to argue that the defendant could not do so because he had not done so. This was an inference to be drawn, extravagant though it might be. It is one thing to say that a legal inference may be drawn from a certain state of facts, and quite a different thing to say that such inference must necessarily be drawn from the given state of facts. The jury must be accredited with common sense, and it is not to be supposed that they were swept off of, their feet by the extravagant inference sought to be drawn by the prosecuting attorney.

We find no prejudicial errors in the record, and the judgment will be affirmed.


author: Humphreys, J.

text:
    O’Leary v. Lane.
    Opinion delivered June 27, 1921.
    1. Wills — contest op PROBATE. — The question whether a will was properly probated can be raised only on an appeal from the judgment of the probate court admitting it to probate, and such question can not be raised in a collateral proceeding.
    2. Wills — INCORPORATION op independent instruments by referENCE. — Independent instruments, though testamentary in character, can not be incorporated in wills as a part thereof by reference only, as the statutes require that the entire will shall be authenticated as specified; but if the language of the will itself is insufficient to effect a conveyance of the lands, reference to an extraneous instrument for the description' is sufficient where the will sufficiently designates the extraneous instrument so as to identify it with certainty.
    3. Wills — identification of deeds. — A will which merely refers to deeds theretofore executed to certain heirs as being in a safety box in a certain bank does not sufficiently describe the deeds so as to effect a testamentary disposition of the lands.
    Appeal from Prairie Circuit Court, Northern. Dis-. trict; George W. Clark, Judge;
    reversed.

      Emmet Vauglicm, for appellants.
    1. The will is void for uncertainty, (1) because it does not designate specific existing deeds with sufficient definiteness as to admit of the incorporation of said deeds in the will; (2) because the will is indefinite and uncertain as to whom the testator desired to leave his property to, or as to whether the deeds probated with the will were all the deeds that were in the lockbox. Uncertainty in a will as to either the subject or object of a devise is fatal to its validity. 116 Ark. 328.
    2. The deeds being absolute upon their face, not testamentary in character, and not attached to the will or identified by it, can not be made effective as part of the will.
    3. The will is,inoperative as a conveyance, because the deeds mentioned are without sufficient identification to become part thereof. Borland on Wills, 51; 58 A. 748; 77 Conn. 240; L. R. A. 335;'107 Am. St. Rep. 24. A letter testamentary in character and not being executed as a will is ineffective as part of a will. 60 A. 266; 77 Con. 604; 107 ’Am. St. Rep. 64. Where a will is properly executed and proved, it must be admitted to probate, though it contain not a single provision capable of execution, or valid under the law. 101 Mo. 168; 77 Pac. 825; 144 Cal. 121; 141 Id. 121. See, also, 163 Atl. Rep. 754. The court erred in overruling the motion to require cross-complainant to complete exhibit “A” by attaching the testimony upon which the will was admitted to probate, and also in .overruling appellants’ demurrer to the cross-complaint.

      F. E. Brown, for appellee.
    There was no error in overruling the motion to require appellee to complete exhibit “A” to the answer and cross-complaint, nor in overruling the demurrer to that part of the corss-complaint which relies upon the will of W. H. Brock as a conveyance of real estate. As to the motion, at law an exhibit is not part of a complaint unless the action is founded upon the written instrument exhibited. 32 Ark. 131; 85 Id. 223.
    The evidence upon which the will of Brock was admitted is no part of the will, and attaching it to the will served no useful purpose. C. & M. Digest, § 10537; The demurrer was a collateral attack on the final judgment of a court of record, which is not allowed. There was a final judgment, and no appeal was taken, and it is final on appeal. 40 Ark. 91; 31 Ark. 175; 64 Id. 350; 66 Id. 623; 75 Id. 146; 109 Id. 119. No error is pointed out -in the court’s judgment.
   Humphreys, J.

Appellants and appellee are the sole heirs of W. H. Brock, deceased. Appellants instituted suit against appellee in the Prairie Chancery Court, Northern District, for partition of the lands in said county, owned by the said W. H. Brock at the time of his death, alleging that W. H. Brock, deceased, died intestate and that they were tbe owners, as tenants in common, of said lands by inheritance from him.

Appellee filed an answer, denying that W. H. Brock, deceased, died intestate, and that appellants and appellee inherited said lands, as tenants in common, under the law of descent and distribution, from W. H. Brock, deceased; but, on the contrary, alleged that W. H. Brock, deceased, died testate, devising a part of the lands, sought to be partitioned, to appellee, another part thereof to Ellen O’Leary, another part thereof to Willie Riddle, and another part thereof to Clarice Reid, by reference for tlie particular description of the lands devised to warranty deeds theretofore executed to each, and referred to in the will as being in deceased’s safety deposit box in the Farmers’ ^Merchants’ Bank of Des Arc, Arkansas, and that each acquired and owned in severalty the particular tracts thufe devised to each. Appellee attached to her answer, as a part thereof, Exhibit “A” which embodied the last “will and testament of W. H. Brock, deceased, and four warranty deeds from him to the heirs aforesaid, conveying to each a part of the lands sought to be partitioned.

Appellee also filed a cross-bill, requesting the court to construe certain clauses of the will of W. H. Brock, deceased, and made Exhibit A to her answer an exhibit to her cross-bill.

The chancery court, upon its own motion and over the objections of both appellants and appellee, transferred the cause to the circuit court.

Appellants filed a motion in the circuit court to require appellee to attach to exhibit “A” to the answer and cross-bill the proof adduced in admitting the will to probate. The motion was overruled, to which ruling of the court appellants objected and excepted.

Appellants then demurred to appellee’s cross-complaint, upon the ground, among others, that the will and deeds, attached as Exhibit A to the answer and cross-complaint, did not operate as a devise of the real estate of W. H. Brock, deceased. The demurrer was overruled, to which ruling appellants objected and excepted.

Later, the cause was submitted to the court, sitting as a jury, upon the complaint, the answer and cross-complaint, evidence of witnesses, a certified copy of the will of W. H. Brock, deceased, and the order of the probate court admitting the will to probate, which resulted in a finding and judgment that the will was legally probated, and that it operated as an effective conveyance of the entire estate, both real and personal, of 'W. H. Brock, deceased, from which judgment is this appeal.

No assignments of error were brought into the record by bill of exception, so that the only questions presented to the court on this appeal are the rulings of the trial court upon the motion to complete Exhibit A by adding thereto the proofs adduced for the probate thereof, and the demurrer to the cross-complaint in alleging the will and deeds to be a testamentary disposition of the real estate described in said deeds.

The question as to whether the court erred in overruling the motion to complete Exhibit A is immaterial and eliminated, as the record made in this case upon its face show,s a judgment in the probate court probating the will. The question as to whether properly probated was one for determination on appeal from that judgment. The only material issue joined on the answer, cross-bill and demurrer thereto, appearing on the face of the record for determination on this appeal, is whether the will and deeds are effective as a testamentary disposition of the property described in the deeds to the grantees therein. The will and deeds probated as the last will and testament of W. H. Brock, deceased, are as follows:

“W. H. Brock, Last Will and Testament:
“In the name of God. Amen.
“I, W. H. Brock, of the town of Des Arc, in the county of Prairie, and State of Arkansas, being of sound and disposing mind and memory and over the age of twenty-one years, knowing the certainty of death, and the uncertainty of the hour thereof, and being desirous of having my estate managed, controlled, used and disposed of at my death in accordance with my wishes, 1 do hereby make, publish and declare this my last will and testament, hereby revoking all former wills and codicils, by me heretofore made; also revoking any and all contracts or instruments of writing designating heretofore any ¡one as executor, administrator, agent or attorney or representative in any manner in winding up the affairs of my estate after my death.
“First. It is my will and desire that all of my Just debts and funeral expenses be paid as soon as same can be conveniently done out of'any money I may have on band or on deposit at my death.
“Second. It is my will and desire that the deeds heretofore by me executed to the heirs of my estate, deeding to them real property that I desire each to have at my death, which are now in my safety deposit box in the Farmers’ & Merchants’ Bank of Des Arc, Arkansas, be by my executor and executrix, hereinafter named, delivered to said heirs mentioned in said deeds, which property I give and bequeath to each of said heirs as conveyed in said deeds.
“■Third. After paying my just debts and funeral expenses and the delivery of deeds hereinabove mentioned, by my executor and executrix, hereinafter named, to my heirs, vesting in them title to the property as conveyed in said deeds, the remainder of my estate, real, personal or mixed property, I give, devise, and bequeath to my heirs, as their interest appears in my estate, said heirs being Emmet Vaughan, Percy Vaughan, Clarice Reid, who are the heirs' of my sister, Mrs. Martha Vaughan, deceased; Alora Lane, heir of my brother, James Thomas Brock, deceased; Ellen O’Leary, heir of my sister, Mrs. Caroline Bledsoe; and Mrs. Willie Riddle, heir of my sister, Mrs. Emily Francis Porter, they being my sole and only heirs.
“Fourth. I hereby name and nominate and appoint, as the executor of this, my last will and testament, my friend, R. A. Richmond, and as executrix of same- my niece, Mrs. Willie Riddle, and it is my will and desire that no bond be required of them, and that they carry out my wishes as herein made.
“In witness whereof, I, W. H. Brock, have to this, my last will and testament, subscribed my name, on this the 17th day of August, in the year of our Lord, one thousand nine hundred and fourteen.
“W. H. Brock (Seal).
“Signed, sealed, declared and published by the said W. H. Brock, as and for his last will and testament, in the presence of us, who at his request and in his presence and in the presence of each other, have subscribed our names as witnesses hereto.
“A. Y. Harris,
“Erwin Bethell.”
“Exhibit A to Will.’'’
“Warranty deed from W. H. Brock to Alora Lane conveying lot 11 in block 22 and lot 11, and 10 feet of west side of lot 12 in block 15, Watkins’ survey of Des Arc. Deed acknowledged on the 29th day of July, 1914.
“Warranty deed, W. H. Brock to Ellen O’Leary, lots 1, 2, 10, 11, in block 16, lot 7 in block 15, lots 7,-8, 9 and west half lot 10, in block 27, in Watkins’ survey of the town of Des Arc. Deed acknowledged 29th day of July, Í914.
“Warranty deed, W. H. Brock to Willie Riddle, east half lot 5 in block 26, Watkins’ survey of Des Arc. Acknowledged 29th day of July, 1914.
“Warranty deed, W. H. Brock to Clarice Reid, lot 9 in block 16 in Watkins’ survey of Des Arc. * * * Deed acknowledged 29th day of July, 1914.”

W. H. Brock died on the 21st day of March, 1916, and the will was probated on the 26th day of October, 1917.

Independent instruments, though testamentary in character, can not be incorporated in wills- as a part thereof by reference only in this State, for the statutes here require that the entire will shall be authenticated in the manner specified in the statutes. In the case of Bryan v. Bigelow, 77 Conn. 604 (107 Ann. St. Rep. 64), a sealed letter, testamentary in character, found in the same receptacle with the will, referred to in the will and otherwise identified, was treated as ineffective as a part of the will, not being executed in the manner required for the execution of wills. Under the rule thus announced, the separate deeds referred to in the will now under construction are ineffective as testamentary dispositions of the lands described therein — not being testamentary in character and authenticated as required by the laws of this State. Under the rule thus announced there could be no objection, however, in devises of real estate, if the language of the will itself is sufficient to effect a conveyance of the lands, to refer to an extraneous instrument for the description merely, if the will sufficiently designates the extraneous instrument so as to certainly identify it. By reference to the latter part of section 2 of the will before us for construction, this language appears : “Which property I give and bequeath to each of said heirs as conveyed in said deeds.” This language refers to deeds in the testator’s safety deposit box in the Farmers & Merchants Bank of Des Arc, Arkansas, at the time the will was executed, and, if the instrument referred to is sufficiently identified, the language quoted was sufficient to effect a conveyance of the real estate. The will was executed on the 17th day of August, 1914. The deeds exhibited as a part of the answer and cross-complaint in the instant case were acknowledged on the 29th day of July, 1914. They purport on their face to be warranty deeds conveying lands described in each to a part of the heirs mentioned in the third .paragraph of the will. There is nothing in the will to definitely identify these deeds as the deeds which were in the safety vault at the time the will was executed. The will does not identify the deeds by their dates or in any other manner. The reference in the will is to deeds theretofore executed to a part of the heirs mentioned in section 3, and therefore does not identify those deeds any more definitely than other deeds he may have theretofore executed to different lands to the same parties, or deeds executed to other heirs mentioned in the third paragraph of said will. We do not think that the deeds probated as a part of the will are sufficiently identified in the will to effect a testamentary disposition or conveyance of the lands in question as specific devises to the grantees in the deeds. It follows tbat the lots described, in the deeds are a part of the residue of the estate and pass to the heirs under the residuary clause of the will. The court should have sustained the demurrer to that part of the cross-complaint which relies upon the will of "W. H. Brock as a conveyance of said real estate.

For the error indicated, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.