author: Hart, J.,

text:
    Parrish v. Parrish.
    Opinion delivered December 19, 1921.
    1. Husband and wipe — tenancy by entirety. — Provisions of the Constitution or of statutes whereby married women are enabled to hold property to their separate use or to sue and be sued and to contract and be contracted with do not apply to an estate granted to husband and wife and have no effect upon real estate conveyed to husband and wife jointly.
    2. Husband and wipe — estate by entirety. — A conveyance to husband and wife jointly creates an estate by the entirety, though they are not mentioned in the deed as husband and wife.

      Appeal from Sebastian Chancery Court, Port Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Emma Parrish brought this suit in equity against Willie Parrish and others to reform a deed to real estate in Port Smith, Ark.
    According to the allegations of the complaint, on the 11th day of November, 1919, Alice Taylor Callahan, by a quitclaim deed conveyed the two lots in controversy to Joseph E. Parrish and Emma Parrish for the consideration of $1600, $250 of which was paid in cash, and the balance was evidenced by promissory notes executed by Joseph E. and Emma Parrish, who were husband and wife at the time the deed was executed. Before the delivery of said deed, it was discovered that it did not correctly describe the property intended to be conveyed, and on the 19th day of November, 1919, Alice Taylor Callahan executed a new deed to the property intended to be described, to Joseph E. Parrish for the purpose of correcting the misdescription in the first deed. Upon the delivery of the last deed the plantiff was assured that the mistake had been corrected, and she did not examine the deed and discover that her name as one of the grantors had been erroneously omitted therefrom until after the death of her husband.
    Por some time prior to the purchase of the property, the plaintiff and her said husband occupied the same, and plaintiff had conducted thereon a grocery store which was her individual' business. The cash payment was made out of her earnings and profits in conducting the grocery store. It was the intention of plaintiff and her husband that the title to said property be vested in them as tenants by the entirety,
    The prayer of the complaint is for a reformation of the deed by the insertion of the plaintiff’s name therein as one of the grantees in said deed and as one of the purchasers of the property.

      According 'to the allegations of the answer, Willie Parrish is the son of Joseph E. Parrish and Emma Parrish. Joseph E. Parrish died on the 8th day of December, 1920, leaving Willie Parrish and Earl Parrish, his sons and sole heirs at law. They deny that Alice Taylor Callahan intended to convey the property in question to their mother and father as husband and wife in such manner as to create an estate by the entirety. They admit, however, the execution of the deed as set out in plaintiff’s complaint. They admit that the description of the property was incorrect as described in the first mentioned deed.
    The plaintiff filed a demurrer to the answer, which was sustained by the court.
    The defendants declined to plead further, and a decree was entered in favor of the plaintiff.
    The defendants have appealed.

      James B. McDonough, for appellant; Davis é Ashby of Chillicothe, Mo., of counsel.
    1. The married woman’s act of 1919 destroyed estates by entirety. The holding in 147 Ark. 7 is erroneous and should be overruled. In Ohio a conveyance to a husband and wife creates a tenancy in common. 45 Ohio St. 152. The Illinois married women’s act was held to destroy an estate by the entirety. 133 111. 65. So in Tennessee. 205 S. W. 416; 221 S. W. 189. And in Maine. 33 Atl. 652. See 56 N. H. 105; 15 So. Rep. (Ala.) 823; 60 Neb. 663; 44 S. E. (W. Va.). The married women’s act destroyed the unity of husband and wife.
    2. The deed to Joseph and Emma Parrish, if they were .unmarried, would create a tenancy in common, and not an estate by the entirety. 124 Ark. 167.
    3. The deed was to Joseph and Emma Parrish, but not to them as husband and wife. See 76 Ark. 57; 133 111. 65.

      George F. Youmoms, for appellee.
    A deed to a husband and wife conveys an estate by entirety. 37 Ind. 391. 147 Ark. 7 has become a rule of property.
   Hart, J.,

(after stating the facts). According to the allegations of the complaint, which are to be taken as true upon demurrer, Joseph E. Parrish and Emma Parrish were husband and wife when the first deed to the property in question was executed to them, and it was the intention to convey them an estate by the entirety. A mistake was made in the description of the property which was corrected by a new deed executed to Joseph E. Parrish alone. It was represented to Emma Parrish that the new deed was to her husband and herself as in the first instance, and she did not know any difference until after the death of her1 husband.

It is the contention of counsel for the defendants that our Married Women’s Acts have abolished estate by the entirety, and several cases from the Supreme Courts of other States are cited in support of their contention.

It must be admitted that the authorities on his question are divided. The leading cases bearing upon each side of the question are cited in Baker v. Stewart, 40 Kan. 442. In that case the majority opinion holds that neither the statutes relating to married women, nor the statutes relating to descents and distributions, have changed the rule of the common law with respect to the rights of the survivor in estates by the entirety.

The contrary view is maintained in the dissenting opinion, and the leading authorities on that side of the question are cited. The statute under consideration, in most of the cases cited on either side of the question, is very similar to the provision of our Constitution of 1868, and of our present Constitution relating to married women and giving them the right to control and manage their own separate property.

In Robinson v. Eagle, 29 Ark. 202, it was held that at common law the husband and wife are seized of the entirety in land conveyed to them jointly; and, upon the death of one of them, the estate remains to the survivor. It was further held that the rule of the common law was not changed by our statute, or the Constitution of 1868. It was said that the constitutional provision only relates to the separate property of the wife and was intended merely to preserve it from liability from the debts of the husband.

The provision in our1 present Constitution is similar, and estates by the entirety have been upheld under it. Branch v. Polk, 61 Ark. 388; Simpson v. Biffle, 63 Ark. 289; Roulston v. Hall, 66 Ark. 305, and Davies v. Johnson, 124 Ark. 390.

But it is contended that the rule of the common law has been changed by an act of the Legislature of 1919, entitled “An Aot to B-emove the Disabilities of Married Women in the State of Arkansas.”

The section referred to is sec. 5577 of Crawford & Moses’ Digest, which reads as follows:

“Every married woman and every woman who may in the future become married shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a feme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common-law disabilities such as the disability to act as executrix or administratrix as provided by par. 6 of Kirby’s Digest, and all other statutory disabilities.”

' The statute does not pretend in direct terms to change or modify the common law in any particular with respect to an estate by the entirety. It is claimed, however, that the act impliedly changes this rule of the common law. We cannot understand how the act changes the rule of the common law in this regard. The Legislature passed the act for the benefit of married women, ■ and not to take away from them any of their rights and privileges. Without the act, a married woman holding with her husband an estate by the entirety, would, when he dies, take the entire estate if she was the survivor. The act in question has nothing to do with the estate which either the husband or the wife should hold, but only with the control by married women of their own separate property and of their right - to contract and to sue and be sued and act in other respects, as if a feme sole. The common-law incidents of marriage are swept away by express statutes only. For instance, a husband still hqs his common-law rights of tenant by the curtesy.

Provisions of the Constitution or statutes to enable married women to hold property to their separate use or to sue and be sued and to contract and be contracted with do not in terms apply to an estate granted to husband and wife, and have no effect upon real estate conveyed to husband and wife jointly.

It is also contended 'by counsel for the defendant that the deed in question did not convey an estate by the entirety to Joseph E. Parrish and Emma Parrish because they are not mentioned in the deed as husband and wife.

We do not think that this makes any difference. The complaint alleges that the parties were husband and wife at the time the deed was executed, and it is the conveyance of the property to the husband and wife jointly which creates the estate by the entirety. Chandler v. Cheney, 37 Ind. 391; Hulett v. Inlow, 57 Ind. 413; 26 Am. Repts. 64, and case note; and 15 A. & E. Ency. of Law, 846-7. See also Davies v. Johnson, 124 Ark. 390.

In Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, the court expressly said that our statutes enfranchising married women were not intended to and do not affect estates by the entirety.

Counsel for the defendants urge us to overrule this case in this respect; but, as we have already seen, the holding is in accord with onr previous decisions hearing on the question, and we adhere to it. Tenancy hy the entirety is a joint tenancy modified hy the common-law doctrine that husband and wife are one person in law, and can not take by moieties. The rule has not been ■changed by our statute enacted to enhance the rights of married women; for the reason that such acts do not expressly change or modify the common-law rule, and, having been passed to accomplish a different purpose, do not do so by necessary implication. These acts no more destroy her union with her husband than does a settlement of property upon her for her separate use.

It follows that the decree must be affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Huckins Hotels v. Smith.
    Opinion delivered December 19, 1921.
    1. Innkeepers — depositaries for hire. — Under Crawford & Moses’ ■ Dig., § 5567, an inn- or hotel-keeper is liable as a depositary for hire as to personal property placed by his guests under his care, and is held merely to the exercise of ordinary care and diligence.
    2. Innkeepers — liability for guest’s property. — Though, under Crawford & Moses’ Dig., § 5567, an inn- or hotel-keeper is liable as bailee for articles placed by a guest under his care only so •long, as the latter remains a guest of the hotel, the parties may enter into a special contract for the care of the guest’s property during his absence from the hotel.
    3. Innkeepers — bailment—consideration.—The agreement of plaintiff to stop at defendant’s hotel in the city was a sufficient consideration for an agreement on defendant’s part to keep plaintiff’s property in his absence.
    4. Inkeepers — baggage check as evidence. — Where a guest at a hotel deposited certain articles with the hotel-keeper and accepted a check therefor which stipulated that the hotel-keeper would not be responsible for a longer period than ten days, the check was evidence of the contract, and the plaintiff could not vary its terms by parol evidence.
    5. Innkeepers — liability for lost baggage — instruction.—Where a guest at a hotel deposited certain baggage with the hotel-keeper and accepted a check which stipulated that the latter would not be liable for a longer period than ten days, it was error to instruct the jury that if the baggage was lost while in custody and possession of the defendant, the latter would be liable for its value, regardless of the time when it was lost or whether the hotel keeper was negligent.
    6. Innkeepers — lost baggage — jury question. — Where a hotel-keeper was placed in exclusive possession of certain baggage belonging to a guest, it devolved upon the hotel-keeper to explain its subsequent loss; but where the evidence showed that the baggage was placed in a check-room, to which only the bellboys were permitted to have access, and that the baggage was left in the check-room five or six weeks before the plaintiff called for it, the question of the hotel-keeper’s negligence was for the jury.
    Appeal from Miller Circuit Court; George R. Haynie, Judge;
    reversed.

      Frank 8. Quinn, for appellant.
    The evidence was not sufficient to sustain the verdict of the jury.
    The court’s instruction making the hotel an insurer of the articles checked was erroneous. 103 Ark. 593; act 217 of Acts of 1913, p. 934; 136 Ark. 503.
    The hotel was a gratuitous bailee and not responsible except for gross negligence. 22 Cyc. 1087-1088; 52 Ark. 364; 93 Ala. 342; 12 L. E. A. 382; 9 So. 250; 47 Colo. 57; 107 Pac. 222; 28 L. E. A. (N. 8.) 495 ; 82 Pac. 529; 2 L. E. A. (N. S.) 100; 22 Fla. 627; 1 So. 137; 41 Ga. 65; 70 Ga. 449; 81 N. T. Supp. 291; 2 Lea 312; 9 Colo. 482; 59 Am. Eepts. 152; 13 Pac. 589; 13 Colo. App. 59; 56 Pac. 188; 133 Mich. 163; 103 Am. St. Eepts. 444; 94 S. W. 750.
   Hart, J.

George A Smith brought this suit in the municipal court of Texarkana, Ark., against the Huck-ins Hotels to recover the value of certain articles checked by him at the defendant’s hotel in Texarkana, Ark., alleged to be of the value of $132.50.

In the municipal court judgment was rendered in favor of the defendant. Upon appeal to the circuit court, there was a trial before a jury and a verdict for the plaintiff in the sum of $85. From the judgment rendered this appeal has been prosecuted.

According to the testimony of Geo. A. Smith, the plaintiff, he was a traveling shoe salesman with headquarters at Texarkana, Ark. He stayed at the Hnckins Hotels when he was in Texarkana. He told Pañi G. Hnckins, the manager of the hotel, that he wanted to get a room permanently at a lower rate in which to leave his clothes and other personal effects while absent from the city. Huckins replied that he could not do that, but he suggested that the plaintiff should make a bundle of his effects and check it when he left and have the porter bring it to his room when he returned. This understanding was had to avoid the payment of the regular rates while the plaintiff was absent on his trips. The plaintiff checked three different packages with the defendant. These packages contained a suit of clothes, some leather samples, three silk shirts and some felt slippers. The articles were in three different packages and Smith received three checks for them. The checks were in the following form:

“The Huckins Hotels”

“Oklahoma City,

“Fort Worth,

Grip,

Texarkana.

We will not be responsible for articles checked when holder of check ceases to be a guest or in any event for more than ten days.

“No. 67009.

The Huckins Hotels.”

The witness presented these checks to Mr. Huckins and demanded his packages, but did not receive them. On cross-examination he stated that at the time he left the packages and received the checks, he was getting ready to leave town. He left on Sunday night and returned the following Friday, but did not ask for his property then. He did this for three weeks before he asked for his packages. The hotel maintained a checkroom for its guests, and the plaintiff did not pay the defendant anything for keeping the three packages. The consideration for keeping them was that he should be a guest of the hotel when in town. Huckins did not make any agreement with the plaintiff different from the statement contained in the checks, but assured him that the packages would be all right.

Paul G-. Huckins, the manager of the hotel, testified that the articles had been left there for five or six weeks when the plaintiff presented the checks; that the boy tried to find the articles, but could not do so; that he does not recall any conversation with plaintiff about the matter, and made no agreement with him except what the checks stated.

The court instructed the jury that the special agreement under which the defendant agreed to take care of the articles in consideration of the plaintiff becoming the guest of the hotel when he was in the city of Texarkana was a sufficient consideration to bind the defendant to take care of the property.

The court further instructed the jury that if such a contract was entered into between the parties, and the property was lost while in the custody and possession of the defendant, the defendant would be liable for the value of it. The latter part of this instruction was wrong.

In Turner v. Weitzel, 136 Ark. 503, the court held that, under our statute making an inn- or hotel-keeper liable only as a depositary for hire as to personal property placed by his guests under his care, the keeper of a hotel is no longer liable in such case as an insurer, but is held to the exercise of ordinary care and diligence.

Under this statute, the hotel-keeper is a bailee for hire for the articles placed by a guest under his care, so long as the former is a guest of the hotel. This statute would not prevent the parties from entering into a special contract for the care of the guest’s articles during his absence from the hotel on his trips as a traveling salesman. This is what the plaintiff says was done in the instant case, and we think that the agreement of the plaintiff to stop at the defendant’s hotel while in the city of Texarkana, Ark., was a sufficient consideration on his part to make the agreement binding on the hotel-keeper. The parties, however, saw fit to reduce their agreement to writing and this constituted and defined their respective rights and liabilities.

The cheek given by the defendant to the plaintiff for the articles, in plain terms stated that it would not be responsible when the holder of the check ceased to be a guest or in any event for more than ten days.. As we have already seen, the statute made the defendant liable for the baggage of the plaintiff during the time he was a guest of the hotel, but the check limited the liability in any event to not more than ten days, meaning thereby ten days after the plaintiff ceased to be a guest of the hotel. The instrument was contractual in its nature, and the plaintiff could not vary its terms by parol evidence. His own evidence shows that he left the articles at the hotel for three or four weeks after he ceased to be a guest thereof before he demanded them.

Under the special agreement the hotel company was a bailee for hire, and was liable for the value of the goods lost only when the loss resulted from its negligence. Hornor Transfer Co. v. Abrams, 150 Ark. 8.

It follows that the court erred in telling the jury that, if the baggage was lost while in the custody and possession of the defendant, the defendant would be liable for the value of it, regardless of the time when it was lost, or of whether the defendant was negligent in keeping the property.

It is true that, the defendant having been placed in the exclusive possession of the property, it devolved upon it to explain the loss before the plaintiff could be put upon proof as to negligence. It cannot be said, however, that there was no evidence adduced by the defendant tending to show that the property was lost without negligence on its part. According to the testimony of the manager of the hotel, the articles sued for had been placed in the check-room of the hotel, which was located next to the elevator in the lobby. The checkroom was for the use of the guests of the hotel, and has a window in it without any glass, and a sill door. Only the bellboys are permitted in there. The articles had been left in there five or six weeks before the plaintiff called for them. This was sufficient to carry to the jury the question of the defendant’s negligence. Hornor Transfer Co. v. Abrams, supra.

For the error in giving instruction above referred to the judgment must be reversed and the cause remanded for a new trial.


author: Smith, J.

text:
    Salley v. Michael.
    Opinion delivered December 19, 1921.
    Landlord and tenant — foreiture of lease — waiver.—Although there was testimony to sustain a finding that there was such a change in the use of leased premises which was contemplated by the parties and evidenced by the lease as to amount to an abandonment of the lease, the right to a forfeiture for such abandonment is waived by the landlord where, with knowledge of a right to such forfeiture, he subsequently accepts rent from the tenant.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor; reversed and
    affirmed.

      Powell & Smeacl, for appellants.
    There is no provision in the lease for forfeiture, and the lessor is remitted to a suit for damages to the property. Should there be an implied covenant for rescission,still the landlord’s remedy would be a suit for damages, and not an action for rescission of the contract. 86 Nev. 382; 62 Nev. 143; 24 Cyc. 1348 (d); 41 Ark. 532; 71 Ark. 494.
    • A tenancy cannot be terminated for a breach of covenant by the lessee where there is no provision in the lease for a forfeiture or right of re-entry on.the occurrence of the breach. 24 Cyc.' 1349 (b).

      Michael waived the forfeiture, if there was any, by accepting rents after he knew*, of the conditions complained of. 90 3ST. Y. 594; 56 N. Y. 157; 33 N. W. 76; 62 N. W. 139; 60 N. W. 597.
    Appellee cannot complain that his insurance was canceled by reason of the acts of appellants, as the evidence shows that the insurance companies placed the whole of the district in which his property is located in a restricted district and canceled all insurance on all the property located in the district.

      J. B. Moore and J. W. Warren, for appellee.
    Appellants have violated their implied obligation to use the property in a tenant-like manner. 118 Ark. 239-; 24 'Cyc. 1061; 50 Kan. 478. They violated their obligation to refrain from exposing it to ruin or waste, and their obligation not to put the property to a use materially different from that in which it had been usually employed. 162 Mass. 176; 4 Gray 222; 109 S. W. 1014; 131 S. W. 639; 26 La. Ann. 402. Their present holding is not under the contract but by force.
    "Where, by the conduct of the lessee, he has rescinded and abandoned the contract, the lessor has three remedies; (1) suit in equity to cancel the contract and recover any incidental damages; (2) suit at law for breach of contract, (3) or treat the contract as rescinded and sue at law for possession. Millar v. Mauney, 150 Ark. 161. See also 41 Ark. 532; 86 Ark. 489.
    Appellee is not estopped by reason of receiving the February rent, for appellants ’ use of the property was a continuing breach of the covenants and obligations of the contract. 24 Cyc. 1362. See also 41 Ark. 532.
    Appellee is not restricted to a suit for damages, for he has the fundamental right to have his property preserved in its original condition. . Const. Bill of Bights, sec. 22.
   Smith, J.

This suit was brought by appellee Michael to cancel a lease of a certain lot in the city of El Dorado executed by Mm to appellants, L. L. and 0. T. Salley. The court granted the relief prayed, and this appeal is from that decree.

The lot leased is 75 by 75 feet, fronting on Washington Street, one of the principal streets of El Dorado. There was a 5-room brick building on the lot at the time the lease was made, 4 rooms of which were used as a residence and the 5th room was used as a store. The building is in the residential portion of the city, and is in the shape of an L. The lease was dated October 18, 1920, and ran until August 1, 1921, with the right of renewal for a period not exceeding one year. The rent was $115 per month, payable in advance. The lease provided that the lessees should “use said premises so as not to damage or permanently injure the same, reasonable use, wear and tear and unavoidable accidents and casualties excepted.” But there was no clause providing for a forfeiture for non-performance of the provisions of the lease.

On January 10, 1921, oil was discovered in El Dorado, and immediately a great boom commenced. Many buildings of a temporary character were erected, and tents were put up to accommodate the influx of people who rushed there.

Appellants cut down the shade trees and flowers on the lot in litigation, and proceeded to erect, on one side of the brick building standing thereon, a 2-story sheet-iron building, and, on another side of the building, a 2-story frame building. These buildings were of an inexpensive and temporary character, and Michael testified that, on account of these buildings, he had been notified that his insurance would be canceled, and that he would be unable to procure other insurance. Before the lease Michael had occupied a part of the brick building standing thereon as his residence, and one of the rooms as a store. After the erection of the additions by appellants, the property was used as a short-order restaurant and a rooming house, and meals were served daily to a large number of transient people.

It was shown that, immediately after the discovery of oil, people rushed in from all directions, and hurried efforts were made by many property owners to accommodate these visitors and reap the harvest of profit afforded by their incoming. Buildings sprang up like mushrooms around Michael’s property. For a few days after the oil well came in leases were in great demand, and Michael undertook to lease the vacant space on his property to another tenant. When the Salleys refused to consent to this, Michael sought to obtain the release of a portion of the yard. The Salleys refused to grant this request and proceeded with the erection of the buildings then under construction. The testimony shows that nearly all the houses that were constructed on the lot were placed there within seven or eight days after the well came in.

On January 17, 1921, Michael caused a written notice to be served on appellants, warning them not to place structures or buildings, of any kind or character, upon the lot in question, and advising that appellant’s action in doing so was contrary to the intention of the parties at the time the lease was made. At the time this notice was served appellants were nearly through with the construction of the buildings except the building on the south side.

We think the testimony warrants the finding that these buildings destroyed the insurability of the brick building. It is insisted that other buildings of similar character adjacent to this lot would have accomplished this result, even though appellants had not built at all. This may be true, but, if so, it did not justify appellants in so using the property as to increase the fire hazard.

It is the insistence of appellee Michael that appellants have so far changed the character of the property and the uses for which it was let, as contemplated by the parties, as to amount to an abandonment of the lease and to be tantamount to a possession not authorized by the lease, The court so found and canceled the lease as having been abandoned, and awarded damages in the sum of $700, which the court found would be the cost of restoring the property to its-condition at the time the lease was made.

The lease contains no clause providing- for a forfeiture for breach of any express or implied covenant of the lease; and appellants’ first insistence is that appellee should be remitted to a suit for damages, as the right to declare a forfeiture was not reserved in the lease, and they are tendering, each month, the rent provided for by the contract.

Without further reciting the testimony, we have concluded that, although the testimony may support the court’s finding that there was such a change in the use of the premises contemplated by the parties and evidenced by the lease as to amount to an abandonment thereof, the right to claim an abandonment has been waived.

Michael was fully advised of the conditions on January 17th, when he gave the notice set out above, yet, on the first of February thereafter, he collected the rent for that month. This rent was not actually paid to Michael, but was paid to his wife; but it was a custom of Michael to have these rents paid his wife. It was evidently the opinion of Michael that, having’ given the notice, he had the right to continue to collect .rent, as is evidenced by the following question and answer: “Q. At the time this rent was paid, did you make any objection whatever to the way he was using the property, about these houses and things being on it? A. I had already sent him notice.” Michael appears to have later been advised to refuse the rent, and has since declined all tenders thereof, which were made him regularly.

Appellee Michael insists that there was no waiver of the right to claim an abandonment, because of the written notice which had been served, and because, in the language which he quotes .from 24 Cyc., p. 1362, “The receipt of rent is not a waiver of a continuing breach of covenant, such as the breach of a covenant as to the use of the premises, a covenant to insure the premises, or a covenant to repair.”

The defect in this answer to the assertion of the claim of waiver is that a mere breach of a covenant is not, in the absence of a stipulation in the lease to that effect, a ground of forfeiture. Parties may stipulate for forfeitures for non-performance of the provisions of a lease, and the courts give effect to and enforce these ..tipulations; but, in the absence' of a forfeiture clause, the lessor is remitted to an action for damages for a mere breach of a covenant, Buckner v. Warren, 41 Ark. 532; Williams v. Shaver, 100 Ark. 565; Sells v. Brewer, 125 Ark. 108; 16 R. C. L., p. 1115, § 633 of the article on Landlord & Tenant, and cases cited in the note, to that text.

But, as we have said, this action is not maintainable upon the theory that there has been a.breach of some covenant but on the theory that there has been an abandonment of the lease. Millar v. Mauney, 150 Ark. 161. And we have concluded that, if there was an abandonment of the lease, there was also a waiver of that fact by the collection of the February rent. In 16 R. C. L. p. 1132, § 653, of the article on Landlord & Tenant, the law is stated as follows:

“The most familiar instance of the waiver of the forfeiture of a lease arises from the acceptance of rent by the landlord after condition broken, and it is a universal rule that if the landlord accepts rent from his tenant after full notice or knowledge of a breach of a covenant or condition in his lease for which a forfeiture might have been demanded, this constitutes a waiver of forfeiture which cannot afterward be asserted for that particular breach or any other breach which occurred prior to the acceptance of the rent.”

Our oases are to the same effect. L. R. Granite Co. v. Shall, 59 Ark. 405; Wales-Riggs Plantations v. Banks, 101 Ark. 461.

The decree of the court below, canceling the lease, is therefore reversed; 'but the part thereof awarding damages for the restoration of the property to its original condition is affirmed.


text:
    Morrilton Cotton Oil Company v. Imboden.
    Opinion delivered December 19, 1921.
    1. Landlord and tenant — waiver of lien. — The fact that a landlord agreed that a firm who were furnishing supplies to his tenant, and who held a mortgage on the latter’s crop, should receive and dispose of the crop, on condition that they would pay the rent, did not constitute a waiver of the landlord’s lien.
    2. Landlord and tenant — liability for rent. — Where a firm which was furnishing supplies to a tenant assumed liability to the landlord for the rent, they cannot deduct from the rent the expense of preserving and marketing the crop.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.
    Appellant did not buy the cotton grown by Carden, and the fact that Carden turned over to appellant the money he received for his cotton sold to other. parties would not make it liable to the landlord. To become liable appellant must have received the property itself, with knowledge of the landlord’s lien. 72 Ark. 132; 56 Ark. 499; 70 Ark. 79.
    Imboden waived his landlord’s lien on the portion of the crop which he asked the oil company to look after and see that it was properly gathered and handled. He thereby appointed the oil company his agent for this purpose. 69 Ark. 581; 103 Ark. 91; 60 Ark. 357. And consented to the sale of the crop upon which he had a lien, thereby waiving said lien. 60 Ark. 357; 65 Ark. 222.

      Edward Gordon, for appellee.
    The consent on the part of Imboden that the oil company receive the crop and look out for the proceeds and protect him in his rent did not amount to a waiver of his landlord’s lien. 69 Ark. 584.
    On who wrongfully takes and sells property upon which there is a landlord’s lien is liable to the landlord. 95 Ark. 32. ¡jij ;J
   Smith, J.

This is a suit for the conversion of a crop of cotton by the Morrilton Cotton Oil Co., grown by J. Gr. Carden as a tenant on the farm of J. H. Imboden. The suit was brought upon the theory that the oil mill had converted the crop of cotton upon which Imboden had a landlord’s lien. The rent due Imboden was for the year 1920 and amounted to $2500. The oil mill contracted to furnish Carden the supplies and money to make and gather the crop, and as security for these advances took a mortgage on the crop. A number of lawsuits grew out of these relations. Imboden attached the crop of Carden, and served a writ of garnishment upon the oil mill, which filed an answer admitting it had received cotton and hay subject to Imboden’s lien in the sum of $1468.24, and paid this sum into court. Carden sued the oil mill for damages for the alleged failure to pay the rent to Imboden pursuant to an agreement so to do. The oil mill sued in equity to foreclose the mortgage given it by Carden. The suits brought at law were transferred to equity and all were consolidated. In the trial of this consolidated case, judgment was rendered against Carden for damages against the oil mill; and a decree was entered in favor of the oil mill against Carden for the debt due by him to the oil mill, and a foreclosure of its mortgage was ordered. Imboden’s attachment was sustained, and judgment rendered for the rent, and the residue of the crop which had not passed into the hands of fhe oil mill was ordered sold, and was sold.

The court found that Carden.was indebted to Imboden in the sum of $2500 for rent; and that the oil mill had received the gross proceeds of the crop, amounting to something Over $2600; and that the proceeds of the crop which had been sold under the attachment amounted to $403.09. After allowing credit for the proceeds of the sale of the attached cotton, and the sum paid into court, the court gave judgment for $628.67, the balance due on account of rent; and this appeal is from that order.

The oil mill concedes that this court has several times held that one who buys or receives cotton with the knowledge that it is covered by a landlord’s lien is chargeable with the value or proceeds thereof in his hands in a suit in equity for the conversion of such property; but it insists that it did not receive any of the crop from Carden. This insistence, if true, would excuse the oil mill from liability for the cotton sold by it amounting to $1468.24, and for which it admitted liability in its answer in the garnishment case.

J. J. Scroggins is the president of the oil mill, which is a copartnership; but he also buys cotton on the streets of Morrilton for his own account; and it is the insistence of the oil mill that the cotton of Carden was so purchased; and the testimony of Scroggins is to the effect that he bought the cotton for his own account, but he also testified that he told Carden to go to the mill and settle down there, and that Carden went to the mill and made settlement for his cotton, and that Carden told him that he did not want anything paid on the rent to Imboden until he (Carden) had had a settlement with Imboden, as he expected a deduction of at least a thousand dollars on the rent, and he admits that he told Car-den that the oil mill would hold the proceeds of the cotton until a settlement had been made of the rent.

Imboden testified that J. S. Moose, the manager of the oil mill, stated to him that the oil mill wanted to handle the cotton, and that Moose promised to pay the rent, and, in reliance upon this promise, he allowed the oil mill to control and sell the cotton.

Mr. Moose .testified that “we agreed to collect the rent, for the reason that Mr. Carden owed us, and it suited our plans to be in touch with the matter and know how much of the crop was sold and where the proceeds went.”

Carden testified that when he gave the mortgage, he transacted the business with Mr. Scroggins, who acted for the oil mill, and that in the fall he sold the cotton on the streets to Scroggins, and when he sold a bale of cotton he would take the check which Scroggins gave him to the bank, and “the bank gave me a statement of how much the cotton brought, and I took it down to the oil mill; when I would sell a bale of cotton I would take the check to the bank, and they would give me a ticket and show on it the price the cotton brought, and I would take it down to the oil mill and get credit for it. The oil mill received the funds.”

We think this testimony supports the court’s finding that the oil mill converted the cotton; and we are of the opinion that the transaction between Scroggins and Cardón was merely a method by which they agreed upon the price with which the oil mill should stand charged as each particular lot of cotton was converted to the account of the oil mill, and that the transactions were had pursuant to the agreement between Imboden and Moose that the oil mill would pay the rent. This agreement that the oil mill should receive, handle and dispose of the crop and pay the rent was not a waiver of the landlord’s lien. Bigham v. Cross, 69 Ark. 581.

What we have just said disposes of the case except three items aggregating $90.32, which represented advances made by the oil mill for picking the crop, and for which it says it should be paid as expense of preserving and marketing the crop, which constituted the security for both its mortgage and Imboden’s lien. Two answers may be given to this claim. The first is that the proceeds of the crop converted by the oil mill exceeded the rent by more than $90.32. The second answer is that, under the agreement between Moose and Imboden, the oil mill company assumed the burden and cost of gathering and disposing of the crop for the privilege of appropriating to the payment of its demand against Carden any sum remaining after the rent was paid.

Decree affirmed.


text:
    Felder v. Hall Brothers Company.
    Opinion delivered December 19, 1921.
    1. Landlord and tenant — covenant to renew lease. — A lease for a term of eight years which stipulated that the lessees should “have the right to renew this lease for the term of ten years from the expiration thereof,” contemplated that the lease should expire at the end of eight years, and that thereafter a new lease might be made for ten years.
    .2. Landlord and tenant — right to renew lease. — Where a lease for a term of years stipulated that it might be renewed for a further term, and covenanted that the lessee should keep the fences and improvements in good repair and should deliver the same at the expiration of the lease “in as good condition as the same is now,” the lessors had a right to refuse to renew the lease upon the lessee’s failure to keep its covenant to maintain the repairs.
    Appeal from Lee Circuit Court; B. J. Williams, special Judge;
    reversed.

      H. T. Boleson, B. D. Smith & C. W. Norton, for appellant.
    The use of the words “to renew” in the lease puts it within the line of decisions which requires a new lease. The right to renewal was conditioned on performance by the lessees of their covenants. 134 Ark. 505; 143 Ark. 559; 99 Ark. 193; 93 Ark. 472; 44 Ark. 532.

      Daggett dk Daggett, and Mann & McCulloch, for appellees.
    140 Ark. 619 holds that the lease expressly states that a new lease shall be executed, or1 that the additional term shall be on terms not defined and settled by the original lease, then the provision relative to the additional term will he construed as granting to the lessee the optioii to extend his term.
    Breach of covenant in lease, except covenant to pay rent, is no ground for forfeiture unless lease so provides. 44 Ark. 532; 100 Ark.' 565; 135 Ark. 531.
   Smith, J.

This is an action of unlawful detainer; and while this is the second appeal in the case (Felder v. Hall Bros. Co., 146 Ark. 94), the opinion in the former appeal has no hearing on the issues now presented for decision.

The litigation arises out of the construction of a lease contract. Omitting formal parts and certain recitals which admittedly have no bearing on the points in issue, the contract reads as follows:

“That the said Jonas Felder and wife hereby lease to said Hall Bros. Co. for a period of eight years beginning January the first, 1912, and terminating Dec. 31, 1919, upon the terms, conditions and stipulations hereinafter set forth, seventy-five acres of land, * * * * known as the Chalmers place.

“ (1). Said party of the second part hereby agrees to pay said first parties the sum of five dollars ($5) per annum for each acre of said land, said rent shall be paid on the first of November of each year.

“(2). Said second parties shall have the right to renew this lease for the term of ten years from the expiration hereof.

“(3). Said first parties shall not be required to make any repairs of. any kind or character, but said second party shall keep the fences and improvements on said property in good repair, and shall deliver the same at the expiration of this lease in as good condition as the same is now.” '

At the trial the lessor offered testimony to. the effect that the provision in regard to repairs and improvements had not been complied with; and we must assume the testimony would have established that fact, inasmuch as the court took the view that the contract was a present demise for a period of eighteen years, and that failure to repair and keep up the improvements did not warrant the maintenance of this suit, as the contract had not provided for a forfeiture in case of failure to repair and improve, and directed the jury to return a verdict in favor of the lessees.

Was the court correct in holding the lease contract, set out above, a present demise for a period of eighteen years? and, if not, did the lessees forfeit the right fo renew the lease for the additional term, because of their failure to keep the improvements in good repair?

Appellees cite and rely upon the case of Neal v. Harris, 140 Ark. 619, as supporting the ruling of the court below and as conclusive of the points in issue.

There the clause of the contract construed by the court reads as follows: “Said party of the first part agrees to give party of the second part the refusal of the above place for the years 1919 and 1920, at the above price, $7 per acre.”

Our discussion of the subject in that case commenced with the statement that both the textwriters and the adjudicated cases make a distinction between a covenant in a leáse for a renewal and a provision therein for an extension of the time, at the option of the lessee, and we said: “In the latter case upon the exercise of the option by the lessee there is granted a present lease for the full term to which it may be extended and not a lease for the lesser period with the privilege of a new lease for the extended term.” In support of this proposition we quoted from Underhill on Landlord and Tenant, § 803. In further support of that proposition we also cited 16 R. C. L., § 389, p. 885; Tiffany on Landlord and Tenant, § 218-219, and pp. 1517-1518; Jones on Landlord and Tenant, § 340, and 24 Cyc. 1019.

We said the rule itself is well settled, and the only difficulty is in the application of it to a given leasa Construing the clause of the lease quoted, we said: <<:So in the present case no new contract was provided for in the lease itself. The formal covenant of renewal usually provides specifically for the execution of a new lease. The extended term in the lease under consideration was fixed by and was a part of the original lease. When the lessee exercised his option and gave the required notice, the parties were bound for the two. additional years.”

We think the lease here to be construed is essentially different from the one construed in Neal v. Harris, supra. There the lease contract provided for the refusal for the additional years at the same price. One definition of the word “refusal,” as given in Webster’s New International Dictionary, is: “The choice of refusing or taking, especially as to a purchase, as, to give one the refusal of a house,” and it was in this sense that the word “refusal” was used in the case of Neal v. Harris.

Here the language of the parties is that “said second party shall have the right to renew this lease for the term of ten years from the expiration hereof.” And we think the natural, usual and ordinary meaning of this language is that the contract was to expire in eight years, but might thereafter be renewed for ten years.

In the case of Neal v. Harris, supra, there appears, in the paragraph quoted from Underhill on Landlord and Tenant, in support of the proposition that there is a distinction between a covenant in a lease for a renewal and a provision therein for an extension of the term at the option of the lessee, the statement that, “In the absence of an express provision that a new lease is intended to be executed, the presumption is that no new lease is intended, but that the lessee is to continue to hold under the original lease. The lease must clearly and positively show that the making of a new lease was intended. This must appear from the express, language of the parties. The reason for the presumption is the fact that the making of a new lease will involve trouble and expense which should be avoided by the courts, if possible, unless it is very clear that the parties had expressly agreed to incur such trouble and expense.”

But this is stated as a mere presumption, and we did not there recognize the presence or absence of an express provision that a new lease should be written as conclusive of the question. The only comment of this court on that feature of the case was that “the formal covenant of renewal usually provides specifically for the execution of a new lease.”

This contract will be construed for the purpose of extracting the meaning of the parties, and in doing so we will give the language they have employed its usual, customary and ordinary meaning, as there is nothing about the contract, in its entirety, which indicates that it was otherwise used; and, as so construed, we think it appears that the parties contemplated that a new lease would be made at the end of the eight-year period; and, if such is its meaning, then there is, in the case, no question of presumptions,

In vol. 1, p. 406, Taylor on Landlord and Tenant, it is said: “Although it is held that an additional term, granted under the covenant to renew, is not a new demise, but an extension of the original term, yet, under the ordinary form of lease, there is a distinction between a stipulation to renew the lease for an additional term and a stipulation to extend it for an additional term, since the former requires the making of a new lease, and the latter does not.”

In 2 Wood on Landlord and Tenant, § 413, p. 942, it is said: “A covenant by the landlord to renew the lease for a second term, being a contract to give a new lease, does not give the tenant a right at law to retain possession of the premises demised after the expiration of the original term.”

A similar statement of the law appears in 16 R. C. L. at § 392 of the article on Landlord and Tenant. See numerous annotated cases cited in the note to that text.

In 24 Cyc. p. 1007, it is said: “A covenant to renew is a covenant to grant an estate. It is not a present demise (as distinguished from a covenant to extend) so as of itself and alone to continue the tenancy for the renewal period, but calls for a new lease, without which the tenant cannot strictly retain possession as against the lessor in a court of law, by relying merely upon the covenant to renew.”

In the case of Grant v. Collins, 157 Ky. 36, 162 S. W. 539, the headnote reads: “There is a distinction between a stipulation in a lease to renew it for an additional term and one to extend it, in that a stipulation to renew requires the making of a new lease, while one to extend does not.” This case is annotated in Ann. Cas. 1915D, page 249.

In the case of Leavitt v. Maykell, 203 Mass. 506, the lease there construed contained the clause: “It is further agreed, in consideration hereof, that the lessees shall have the privilege and right to renew this lease after its expiration, for the further term of two years, upon the same terms and conditions of this lease.” Of this clause the court said: “We are of opinion that the defendant’s construction of the quoted clause is correct. It gave the lessees a right to have a renewal of the lease for two years more, but without a formal renewal, or something equivalent to it, it did not extend the term through this additional period. In Cunningham v. Pattee, 99 Mass. 248-252, the court said of ‘renew:’ ‘The word ex vi termini, imports the giving of a new lease like the old one, with the same terms and stipulations and at the same rent and with all the essential covenants.’ ”

See also Fair v. Hartford Rubber Works, 111 Atl. 193; Sheppard v. Rosenkrans, 85 N. W. 199; Kol lock v. Scribner, 98 Wis. 104, 73 N. W. 776; Swank v. St. Paul City Ry. Co., 63 N. W. 1088; Strousse v. Bank, 49 Pac. 260; Orton v. Noonan, 27 Wis. 272; Whalen v. Manley, 69 S. E. 843; Drake v. Board of Education, 123 A. S. R. 448; Helena L. & R. Co. v. N. P. Ry. Co., 186 Pac. 702; Howell v. City of Hamburg Co., 131 Pac. 130. Numerous cases, in which the principle under consideration is discussed, are collected in the notes to the annotated cases of Crenshaw-Gary Lbr. Co. v. Norton (72 Sou. 140) L. R. A. 1916-E 1227; Luthey v. Joyce, 157 N. W. 708, L. R. A. 1916-E 1235; and Kuhlman v. W. J. Lemp Brewing Co., 126 N. W. 1083, 29 L. R. A. (N. S.) 174.

See also, definitions of the word “renew” in Words and Phrases.

We conclude, therefore, that the parties did not contemplate an automatic extension of this lease, but that it might be thereafter extended for a period of ten years, if the lessees so desired, unless they had forfeited their right to this extension.

If, as we have concluded, the lease was not a present demise for a period of eighteen years, have the lessees forfeited the right to hold possession of the premises for an additional term, because of the failure to keep the improvements in good repair?

A consideration of this feature of the case confirms us in the correctness pf the conclusion we have just stated. Eight years, of itself, is a lease of more than ■ordinary length for farming lands; and eighteen years is about the lifetime of ordinary farm improvements. The lease recites that it is “upon the terms, conditions and stipulations hereinafter set forth.” And one of these terms, conditions and stipulations is that the lessees “shall keep the fences and improvements on said property in good repair, and shall deliver the same at the expiration of this lease in as good condition as the same is now.” It will be observed that the lessees are not required merely to deliver the premises, at the expiration' of the lease, in as good condition as the same were at the time the lease was made, but that it was required that they should be kept in that condition during the continuance of the lease. It is conceded that the lessees paid the rent, but we assume for the purpose of this appeal that they did not keep up the repairs. We think it fair to assume that the parties contemplated there would be no default in this respect if the lessees sought to renew the lease, and that they would not seek to exercise that right if they had failed to keep their covenant to maintain the repairs. The case of Jones v. Epstein, 134 Ark. 505, is against the assertion of that right by the lessees under the state of this record. See also, the cases of Hallbrooks v. Rosser, 143 Ark. 559; Tedstrom. v. Puddephatt, 99 Ark. 193; Berman v. Shelby, 93 Ark. 472; Buckner v. Warren, 41 Ark. 532; 16 R. C. L. sec. 194 of the article on Landlord and Tenant.

The judgment of the court below will therefore be reversed, and the cause will be remanded for a new trial.


author: Humphreys, J.

text:
    Norris v. Johnson.
    Opinion delivered December 19, 1921.
    1. Wills — construction.—Where a will provided that the testator’s debts and funeral expenses should be paid by his executors provided his decease comes after that of his wife, devised all of his property to his wife, after his wife’s death directed his executors to sell all of his property, except a watch bequeathed to a nephew, and devised the proceeds to his brother and sisters or their heirs, held that, though the will imposed upon the surviving wife the • duty of paying the testator’s debts, the devise to his wife carried merely a life estate, with the remainder to the other devisees mentioned.
    2. Wills — construction.—The true rule governing the construction of wills is to ascertain the intention of the testator from the language used, giving consideration, force and meaning to each clause in the instrument.
    3. Wills — jurisdiction to construe.— Where a will imposed upon the executors the duty of selling the testator’s property and, after paying his indebtedness, of dividing the funds between his brother and sisters, the effect of the will was to create a trust, and the chancery court properly assumed jurisdiction to construe the will.
    4. Pleading — issues, proof and variance. — Where liability for the rents upon lands of an estate was not made an issue in a suit to construe a will, and was not fully developed in the evidence, it was error to render judgment for such rents.
    Appeal from Lincoln Chancery Conrt, John M. Elliott, Chancellor; reversed and
    affirmed.

      A. J. Johnson and E. W. Brochman, for appellants.
    The chancery conrt was without jurisdiction. 3 Pomeroy’s Equity, (3 ed.) par. 1156; 88 Ark. 1; 70 Ark. 432; 128 Ark. 420.
    The objection that equity has no jurisdiction of the subject-matter cannot be waived. 88 Ark. 1. The suit was not properly begun. C. & M. Digest, sec. 1049.
    The court erred in its construction of the will. The proof offered 'by the plaintiffs to ascertain the intention of the testator cannot be considered. 22 Ark. 278; 90 Ark. 152. The fee was vested absolutely in the wife. 72 Ark. 296; 81 Ark. 480; 82 Ark. 209; 135 Ark. 412.
    The law favors an early vesting of an estate. 90 Ark. 155.

      Taylor & Jones, for appellee.
    Wills are always to be construed so as to carry into effect the manifest intention of the testator, and are to be construed, if possible, to give force and effect to each clause of the will. 112 Ark. 531; 115 Ark. 403; 104 Ark. 445; 3 Peters 346; 116 Ark. 332; 1 Jarman on Wills, 453; 2 Jarman on Wills, 2205; 126 Ark. 58; 98 Ark. 553; 112 Ark. 527.
    The chancery court had jurisdiction. 113 Ark. 405.
   Humphreys, J.

Appellees instituted suit against appellants in the Lincoln Chancery Court to secure the construction of the will of James S. Johnson, deceased, and to recover certain real estate in said county claimed by them under the will.

Appellants Enoch E. Norris and W. E. Norris answered disclaiming any interest in the lands devised in the will. Appellants Grace and Idel E. Chance filed an answer claiming the lands as the sole heirs of Maggie A. Johnson, the wife of the deceased testator, who they alleged was the devisee of the lands in said will.

The case was submitted to the court upon the pleadings, the will and the evidence, which resulted in a finding that Maggie A. Johnson, the wife of the testator, took a life estate only under the will, and a decree pursuant thereto directing the executors to proceed to sell the real estate and distribute the proceeds among the appellees. From the finding and decree an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

The will being susceptible of construction without resort to parol testimony,, it is unnecessary to set out the substance of the evidence.

The clauses of the will necessary to determine the issues involved are as follows:

“Know all men by these presents: That I, James S. Johnson, of the county of Lincoln and State of Arkansas, being in reasonable health and sound disposing mind and memory, do make and publish this my last will and testament. And, as to my wordly estate and all the property, real, personal or mixed, of which I shall die seized with and possessed or to which I shall be entitled at the time of my death, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: All my just debts and funeral expenses shall first be by my executors, hereinafter named, be paid out of my estate as soon after my decease as shall be found convenient, provided my decease comes after that of my wife, Mággie A. Johnson.

“Second: I give, devise and bequeath to my beloved wife, Maggie A. Johnson, all my estate, real, personal and mixed, of which I shall die seized with or possessed or which I shall be entitled at my decease.

“Third: After the demise of both myself and wife, Maggie A. Johnson, I want my executors to sell all of my property I am possessed of, real, personal and mixed, at either public or private sale as they think best and to the best advantage (except one watch which I hereafter bequeath) and to devise the proceeds of sale as hereinafter mentioned.

“Fourth: I give, devise and bequeath .to my nephew, Oscar Slidel McKinney, one double-case silver watch, with initials of my father ‘W. B. J.’ thereon.

“Fifth: I give, devise and bequeath to my brothers and sisters, or their heirs, equally the proceeds of said sale as follows: Thomas J. T. Johnson, Fannie Jones, Jane McKinney.”

Appellants insist that the court erred in interpreting the will as devising a life estate in the real estate to Maggie A. Johnson, contending that the only way to give consideration, force and meaning to each clause in the entire instrument is to interpret the will as devising a fee simple title in the real estate to said Maggie A. Johnson. It is argued that the first clause inferentially defines the character of estate intended to be vested by the testator in his wife in the second clause of the will. This inference is drawn from the use in the first clause of the following phrase: “Provided my decease comes after that of my wife, Maggie A. Johnson.” It is true that by the use of this phrase the duty was imposed upon Maggie A. Johnson to pay the funeral expenses and debts provided she survived her husband, instead of im- ' posing that duty upon the executors. But it does not follow, as a necessary conclusion, that because such duty was imposed upon her she took a fee simple title to the real estate devised under the second clause in the will. The first clause of the will provides for the payment of the testator’s funeral expenses and debts out of his estate by the executors, if the testatpr should survive his wife, Maggie A. Johnson, but by Maggie A. Johnson if she should survive her. husband. The first clause does not deal with the devolution of the property, real, personal or mixed. It deals exclusively with the question of paying the 'funeral expenses and debts. The only clauses in the will dealing with the devolution of the testator’s property are the second, fourth and fifth. These three clauses could not be reconciled if a fee simple estate in the testator’s property was intended to be vested in his wife by the second clause. In that event the second clause would be in conflict with the fourth and fifth clauses. Repugnancy between the clauses can be avoided by interpreting the second clause as vesting in the devisee a life estate in the property of the testator upon his decease. While the language in the second clause is sufficient if no limitations were placed upon it to vest a fee simple estate, the language does not necessarily do so. Such language may be used in vesting a life estate as well. The language, therefore, standing in the clause separate .and apart from other clauses, does not, in terms, vest a definite estate; but, when read in connection with the fourth and fifth clauses, it is manifest that the testator intended in the second clause to vest a life estate in the devisee, Maggie A. Johnson, and the remainder in the other devisees mentioned.

This court ruled in O’Connor v. Rowland, 73 Ark. 422, in the construction of a will, that (quoting syllabus) “Where, in a devise of land, no definite estate is in terms given to the first taker, a limitation over upon his death is construed as indicating an intent that such taker shall have a life estate.” In thus'construing the will, effect is given to every clause in it. The first clause provides for the payment of the testator’s indebtedness; the second clause devises a life estate to his wife; the fourth clause bequeaths his nephew a silver watch; the fifth clause devises the remainder of the estate to his brother and sisters or their heirs; and the third clause provides the manner in which the remainder of the estate shall be divided.

The true rule governing the construction of wills is to ascertain the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument. Parker v. Wilson, 98 Ark. 553; Booe v. Vinson, 104 Ark. 439; Archer v. Palmer, 112 Ark. 527; Gist v. Pettus, 115 Ark. 400.

Appellants next contend that the court erred in assuming jurisdiction to construe the will for the reason that the testator did not create a trust over which courts of equity have jurisdiction. The testator in the will imposes the duty upon the executors of selling the property of the testator, and, after paying his indebtedness, dividing the fund among his brother and sisters and their heirs, which, in effect, created a trust. The court did not err in assuming jurisdiction over the trust and construing the will incident thereto.

Lastly, it is insisted that the court erred in rendering a judgment against appellants Enoch E. Norris and William R. Norris for $4,000 for the rents on the property involved for the years 1916, 1917, 1918, 1919 and 1920. The use of the lands and the rents therefrom was not made an issue in the pleadings, and was not fully developed in the evidence. The rendition of this judgment constituted reversible error.

The decree will be affirmed in all matters except the rendition of the judgment for rents. In that particular it is reversed and remanded for further proceedings on the issue of rents, if desired, with permission to the parties to introduce evidence upon that issue.


text:
    Cunningham v. J. S. Kimbro Lumber Company.
    Opinion delivered December 19, 1921.
    Mechanics’ lien — time op piling lien. — Where the construction of a house according to the original plans and specifications was completed, a materialman’s lien must have been filed within 90 days after the last item of materials was furnished, and the time of filing such lien is not extended by the fact that the owner subsequently purchased from the materialman materials for an additional improvement to the house.
    Appeal from Pulaski Chancery Court; J. E. Martinecm, Chancellor;
    reversed.

      Frank H. Bodge and Jno. W. Newman, for appellants.

      Geo. F. Jones, for appellee.
   Humphreys, J.

This suit was instituted in the Pulaski Chancery Court by appellee against appellants to recover from J. C. Cunningham an alleged balance of $1,783.11 due by him upon account for materials furnished by appellee to construct a residence on lot 16, block 2, Pulaski Heights Addition to the City of Little Pock, and to enforce a materialman’s lien claimed against said property for the amount prior and paramount to two mortgage liens, in the total sum of about $6,000, acquired by the Southern Trust Company after the materials aforesaid had been furnished.

Appellant J. C. Cunningham filed an answer denying the correctness of the account, alleging that it contained charges for extra materials not included in the original contract, and that he owed appellee a balance under the contract of $1,039, instead of the balance claimed by appellee; also alleged that appellee did not file its lien for materials furnished in the clerk’s office within ninety days after the last item under the contract was furnished, and by such failure lost its right to a lien against the property.

The Southern Trust Company filed an answer denying the allegations of the complaint and setting up its mortgages as paramount to the materialman’s lien claimed by appellee.

Ada Cunningham filed an answer denying the allegations of the complaint, and setting up that for a valuable consideration she purchased the property from J. C. Cuningham on August 26, 1920, free from the materialman’s lien claimed by appellee.

The cause was submitted upon the pleadings and ■ evidence, which resulted in a personal judgment against appellant, J. C. Cunningham, for $1,783.11 and a decree declaring a lien against the property for said sum paramount to the claims of the other appellants, from which an appeal has been duly prosecuted to this court.

Appellant J. C. Cunningham contends that the court erred in rendering a personal judgment against him in excess of $1,037. A careful analysis of the testimony has convinced us that every item charged in the account was received and used in the construction of the residence on the property in question. The books of appellee, the dray tickets, and the testimony of O. 0. Wheelis, manager of appellee, and of the several contractors employed by appellant to construct the residence confirm this fact. The account contains items of extras totaling about $550, with which appellant, J. 0. Cunningham, contends he should not be charged under his original contract or order for material. He bases this contention upon two letters written by appellee to him, the first being of date November 4th and the second of date December 6th, 1919. The first letter (omitting the address and signature) is as follows:

“We have entered your order for mill work as per our estimate No. 30, dated October 30, to be delivered to your contractor, Mr. Hardy, for the sum of $1,037. Terms of this will be statement of material delivered to be made every 15 days and collected.”

The second is as follows:

“Wo are pleased to enter and confirm your order for lumber on our estimate No. 40, to be delivered to 519 Cedar Street for the sum of $1017.28, also twelve thousand lath for one hundred and forty-four dollars, or a total sum of $1761.28, as per our list and estimate No. 40, given your contractor, Mr. Hardy. We have started delivery of this and will make deliveries as material is called for by your contractor, Mr. Hardy, and will present Mr. Hardy with hill of material delivered on contract every fifteen days for his O. K., and will then present same to you for payment.”

The letters did not contract to furnish the lumber according to plans and specifications, but to furnish a list of lumber attached to each of the letters for a certain sum of money. Extras to be used in the construction of the house were not included in the lists of material. According to the letters, the lists were estimates of the amount of material necessary to complete the building. These letters cannot be regarded as a contract to furnish all materials necessary to complete the building according to plans and specifications for a specific sum. We think they show the contrary on their face. The finding of the court as to the amount-due by appellant, J. C. Cunningham, to appellee was responsive to the great preponderance of the evidence.

Appellants’ next and last contention is that the verified account for the materials was not filed in the circuit clerk’s office within ninety days after the date upon which the last material was furnished, and because of such failure appellee lost its right to a lien against the property. The lien was filed on the 28th day of August, 1920.

Appellants contend that the last material furnished to complete the contract was delivered on the 9th day of April, 1920, 147 days before the lien was filed. Appellee contends that the last material furnished to complete the contract was delivered on the 2nd day of June, 1920. The building was begun in the fall of 1919 and material, therefor was ordered and delivered several times during each month down to and including the 9th day of April, 1920. The first contractor, E. E. Hardy, only remained on the work a short time, due to labor complications. He was succeeded by Johnson & Dickerson, who turned it over to appellant as a completed job the latter part of March or early in April. The house was placed by appellant in the hands of J. R. Connor to rent. Connor went to look at it, and testified that lie thought it was completed at that time. His record shows that he rented it to N. A. Adler on the 14th day of May. N. A. Adler, who rented the property, requested appellant, J. C. Cunningham, to do some work on the floors, put some extra shelves in one or two closets and to fix a little space between the screens and windows. J. C. Cunningham employed L. T. Farmer and his son, W. E. Farmer, to do this work. They ordered material from appellee to the amount of $8.49 with which to do the work. This material was charged on appellee’s books and delivered on June 1st and 2nd, 1920, on the premises and received by the Farmers. L. T. Farmer testified that he was the contractor who succeeded Johnson & Dickerson on the house, and that he went to work about the 1st of June, 1920; that he scraped and waxed some oak floors that had been previously laid, hung a back screen door, and put little strips between the screen and window sash, about three-quarters of an inch wide, to keep the flies out. He and his son testified that they ordered the material necessary to do this work from appellee at the instance of J. C. Cunningham. J. C. Cunningham testified that he directed them to use the material under the house in doing the work he directed them to do and did not authorize them to order the material from appellee, and did not know any material had been ordered from appellee until after this suit was instituted.

A complete statement of the account was presented to J. C. Cunningham on April 21, 1920, after the house had been turned over to him, and at the time it was occupied by a tenant. J. C. Cunningham disputed the extras in the account, contending that he only owed a balance of $1037. He claimed that balance was due and promised to pay it as soon as he could arrange to get the money. Appellee contended that he owed it for the extras included in the account, the amount of about $550, in addition to the amount admitted by said appellant.

The evidence of appellee tended to show that, while appellant disputed the account all the time, he kept putting them off from time to time, stating that he was trying to borrow money to pay them what he owed them; that his promise from time to time to borrow the money caused them to delay filing their lien.

The fact that Johnson & Dickerson turned the building over to appellant, J. C. Cunningham, as a completed job, that it was rented to and occupied by a tenant, that a complete account for all materials furnished was presented to appellant, J. C. Cunningham, by appellee on April 21, 1920, which became a matter of dispute between them, and that about two months had elapsed between the date of the last item on the main account and the entry of the items of June 1st and 2nd, has convinced us that the material furnished on June 1st and 2nd by appellee was not material covered by or included in the original contract. We do not think that the Farmers can be regarded as contractors in succession to construct or build the house. They were merely employed to do a little work about the screens to keep the flies out, and the material they purchased seems to have been for the purpose of filling in a space between the screen and the window sash, and hinges, hooks and eyes to hang a screen door. It nowhere appears that the work done by the Farmers was included in the original plans and specifications or embraced in the original contract for the construction of the building. The amount of material ordered by them was inconsequential.

We do not think the time for filing the lien was extended, under all the circumstances in this case, on account of the small items purchased on June 1 and 2, 1920. In our view, appellee lost its right to a lien against the property for the main account for failure to file its account in the circuit clerk’s office within ninety days from the date of the last item furnished thereon, to wit, April 9, 1920. It follows that it was error for the trial court to declare a lien upon the property to pay the personal judgment rendered against J. C. Cunningham, except to the amount of $8.49, for the items of materials furnished on June 1st and 2nd, the lien having been filed within ninety days from the date this material was furnished and delivered.

The decree, in so far as personal judgment was rendered against J. C. Cunningham, is affirmed; but, in so far as a lien was declared against the property to pay the same, the decree is reversed and remanded with directions to the trial court to render a decree for a lien against the property in favor of the appellee for $8.49 to cover the material purchased and delivered on June 1 and 2, 1920.


text:
    Taylor v. Martin.
    Opinion delivered December 19, 1921.
    Sales — reservation op title. — Where personal property was sold with reservation of title, the consideration to be paid in work to be furnished by the seller, it is a good defense, in replevin by the seller, to show that the buyer had offered to comply with- the contract but the seller failed to furnish the work.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.

      C. F. Greenlee, for appellant.
    Replevin is not an action for the collection of a debt. 11 Ark. 29.
    The jury erred in failing to render a verdict according to law in an action of replevin. C. So. M. Digest, §§ 8653 and 8654.
   Humphreys, J.

This suit, in replevin,' was instituted by appellee against appellant • to recover three horses, particularly described, two wagons and four sets of harness, all valued at $800. The complaint alleged the ownership of the property in appellee under the terms of an oral contract of sale by appellee to appellant in which the title to the property was retained until the purchase money should he paid by work of appellant with the teams, which payment had not been made. The answer denied appellee’s ownership of the property, and alleged ownership thereof by appellant under the terms of an oral contract whereby appellant purchased the property outright for $750, to be paid by hauling logs for appellee, which contract had been fully complied with.

On motion of appellant appellee filed an itemized account covering items of charge and credit during the period appellant hauled logs for appellee under the contract, which showed on its face charges for advances to the total amount of $1752.43, and credits to the total amount of $997.05, leaving a balance due from appellant to appellee of $755.38. According to the face of the account it ran from August 3, 1918, to December 10, 1919; but appellee testified that a mistake was made in entering the year 1919, as all entries were made in 1918. Appellee further testified that the account was correct and represented the entire hauling or logging transaction. Appellant testified that a part of the account was incorrect and represented duplicate charges. Also testified that he hauled logs for appellant about four months in 1919 after crops were laid by, for which no credit was allowed in the account.

The testimony was in conflict as to whether the sale was. with or without reservation of title, and whether appellee breached the contract by failing and refusing to give appellant work, or whether appellant breached it by failing and refusing to work when requested to do so. The real issue joined by the pleadings and evidence was whether appellee or appellant was entitled to the possession of the property, dependent, first, upon whether the title to the property was reserved in appellee by contract until the purchase money should be paid, and, if so, was it to be paid in work? Second if the title was reserved until the purchase money should be paid in work, then was the contract breached by appellee himself in failing and refusing to furnish appellant with work, or by appellant in failing and refusing to work when requested to do so? and, third, was the property paid for, or had appellant offered to pay for it in accordance with the contract at the time the suit was instituted? In other words, appellee was not entitled to recover possession of the property unless he retained the title, complied with the contract himself, and appellant breached it.

Appellant insists that the issue as thus defined was not clearly presented in the instruction given by the court in submitting the case to the jury. The instruction covers five or six printed pages, and for that reason we shall not attempt to incorporate it in this opinion. No useful purpose could be served by doing so. Suffice it to say that the instruction had a tendency to mislead the jury because it embraced matters and explanations not responsive to the pleadings which obscured the real issue in the case. Again, the instruction assumed that the itemized account was correct, and that appellant owed appellee $755.38 on the hauling or log transaction, a little more than the purchase price of the property. This fact was in dispute. Appellant testified that the statement was incorrect on account of duplicate charges and the failure to give him credit for four months’ hauling in the fall of 1919. This question of fact should have been submitted to the jury for determination.

We deem it unnecessary to discuss all objections urged by appellant to the instruction given, as the law governing the issue made by the pleadings has been declared, and no doubt the instructions given upon new trial will conform to the law as declared upon the issue joined.

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


author: McCulloch, C. J.

text:
    State v. Bond.
    Opinion delivered December 24, 1921.
    1. False pretenses — construction of statute. — Crawford & Moses’ Digest, § 2449, defining the offense of obtaining a signature of any person to any written instrument by color of any false token or writing or by and other false pretense, creates a new offense, and its definition must be found in the language of the statute creating it.
    2. False pretenses — indictment.—An indictment for false pretense which alleges the fraudulent obtaining from the prosecuting witness of a certain warranty deed to land sufficiently alleges that the signature of such witness was obtained.
    3. Indictment and information — statutory offense. — -An indictment which states a statutory offense “with such a degree of certainty as to enable the court to pronounce judgment upon conviction according to the rights of the case,” and which states the acts constituting the offense “in ordinary, and concise language in such manner as to enable a person of common understanding to know what is intended,” as provided by Crawford & Moses’ Dig., §§ 3013, 3028, is sufficient, even though the facts alleged to constitute the offense are not couched in the precise language of the statute creating the offense.
    4. False pretenses — sufficiency of indictment. — An indictment is sufficient which charges that defendant, by means of a certain false pretense, procured from the prosecuting witness a certain-deed of designated value.
    Appeal from Baxter Circuit Court; Archie House, Judge on exchange;
    reversed.

      J. 8. Utley, Attorney General, Elbert Gockvin and W. T. Hammock, Assistants, for appellant.
    The indictment follows the statute. C. & M. Digest, § 2449. The rule governing the description in larceny cases is applicable to this nature of case. 2 Bishop, Crim. Proc. § 173; 33 Ind. 159; 20 Grat. 716; 37 Ark. 443; Id. 445; 58 Id. 43; C. & M. Dig. § 2483; Id. § 2484. Under the last-named statute, a deed to realty is a subject of larceny. It is a chattel or personal property. 8 R. C. L. 923, § 3. See Shelton v. State, 96 Ark. 237.

      G. W. Rogers, for appellee.

      Tbe statute is not intended to apply tb a case oí .this kind, nor is it broad enough to cover the act of obtaining a deed to realty by means of false representations. The words “obtains a signature to any written instrument” refer to personal property, and do not apply to land or to a deed conveying land. 46 Pac. 284.
   McCulloch, C. J.

The State appeals from the .judgment of the circuit court of Baxter County sustaining a demurrer and dismissing the' indictment against defendant for the statutory offense of false pretenses and fraud.

The indictment, omitting the caption, reads as follows :

“The said T. J. Bond, in the county and State aforesaid, on the 15th day of January, A. D., 1921, with the intent to defraud and cheat one J. R. Cline, did then and there unlawfully, falsely and fraudulently and feloniously obtain from the said J. R. Cline a' certain warranty' deed to certain lands in said county and State of the value of eighteen hundred dollars, the property of the said J. R. Cline, by then and there falsely pretending and representing to the said J. R. Cline that he, the said T. J. Bond, was the owner of a certain time deposit for the sum of one thousand dollars in the Farmers’ State Bank of Fordland, Missouri, and by delivery to said J. R. Cline certificate and draft to said time deposit and obtaining deed aforesaid; whereas, in truth and in fact, the said T. J. Bond was not then and there the owner of said time deposit as aforesaid, as he well knew, and the pretenses and representations aforesaid were false and known by the said T. J. Bond to be false at the time they were so made, and were made with the unlawful and fraudulent intent to cheat and defraud the said J. R. Cline, and were believed and relied on by the said J. R. Cline and by means of said false and fraudulent representations the said J. E. Cline was induced to part witli the deed to said real estate aforesaid, against the peace and dignity of the State of Arkansas.”

The statute under which the indictment was preferred reads as follows:

“Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished accordingly.” Crawford & ' Moses’ Digest, § 2449.

It will be observed that in the indictment it is not charged in express words that the signature of J. R. Cline, the injured person, was obtained, nor is it in express language charged that the deed itself was of any value, the allegation in that respect being confined to the value of the lands. The decision of the court in sustaining the demurrer is defended by counsel for defendant on the ground that in each of these respects the indictment was defective.

The offense of obtaining personal property by false pretenses and fraud was unknown at common law, and it does not fall within the common-law definition of the offense of cheating, which was generally held to involve a conspiracy; nor is the statute creating the offense an expansion or extension of any common-law offense, but it creates a new offense, and its definition must be found in the language of the statute creating it. 2 "Wharton on Crim. Law, § 1393. These statutes are common to nearly all the American States, but they vary in terms. Our statute seems to have been copied almost literally from the New York statute and introduces the words, “obtain a signature of any person to any written instrument,” which is not generally found in similar statutes. In construing this statue, the New York courts have held that the language with reference to obtaining a signature to a written instrument applies to the execution of an instrument, and such is undoubtedly its true meaning. People v. Galloway, 17 Wend. (N. Y.) 540. While it is true that he indictment in the present case does not in express language allege that the signature of Cline was obtained, it is specifically stated that Cline was the owner of certain lands and that the defendant obtained from Cline, by virtue of the false pretense, a warranty deed to the lands in question. This is tantamount to a specific allegation that the defendant procured from Cline the execution and delivery of a deed of conveyance to the lands mentioned, which were owned by Cline. This is so clear that the meaning cannot well be misunderstood, and our statute provides that an indictment shall be sufficient if it can be understood therefrom “that the act of omission charged as the offense is stated with- such a degree of certainty as to enable the court to pronounce judgment upon conviction according to the rights of the case” (Crawford & Moses’ Digest, § 3013, sub. 2), and that an indictment is sufficient if it contains a statement of the acts constituting the offense, “in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended.” Crawford & Moses’ Digest, § 3028, sub. 2. An indictment which conforms to these two provisions of the statute is sufficient', even though the facts alleged to constitute the offense- are not couched in the precise language of the statute creating the offense. State v. Bunch, 119 Ark. 219.

The statute declares that upon conviction of this offense the accused “shall be deemed guilty of larceny and punished accordingly.” It is necessary, therefore, to show the value of the thing obtained in order to fix the degree of the offense. It must be conceded also that this statute is directed at obtaining personal property and not realty, but the value of a deed of conveyanee is necessarily measured by the value of - the property conveyed by it, for the writing itself has no intrinsic value, and to hold otherwise would be to nullify the provision of the statute about obtaining a signature to a written instrument. So, when we interpret the language of the indictment according to its ordinary acceptation, we have language which charges that the defendant, by means of the false pretense set forth in the indictment, procured from J. R. Cline, the owner of certain lands, the execution and delivery of a warranty deed of the value of $1700, and this constitutes. a good indictment under the statute. Nor can it be said that this charge brings the offense within the terms of another statute (Crawford & Moses’ Digest, § 2453,) directed against fraudulent conveyances of real estate “to defraud any prior or subsequent purchaser, or to hinder, delay or defraud creditors or other persons,” which constitutes a misdemeanor. That statute is wholly different and involves a different state of facts. Shelton v. State, 96 Ark. 237.

Our conclusion, therefore, is that the court erred in sustaining the demurrer to the indictment, and the judgment is reversed, and the cause is remanded with direction to overrule the demurrer, and for further proceedings.