text:
    Straub v. Capps.
    Opinion delivered December 17, 1928.

      J. H. Black and W. G. Riddick, for appellant.

      Elmer Owens, for appellee
   Humphreys, J.

Appellee brought this suit against appellant in the chancery court of Marion 'County, to quiet his title to an eight-tenths undivided interest in the southeast quarter of the southeast quarter of the northwest quarter of section 10, township 17 north, range 15 west, in said county. It was alleged in the complaint that appellee was the owner thereof, and that, through mistake, the land was included in a deed executed by George W. Chase and wife to appellant on April 3, 1920, and filed for record on May 2, 1921, and that appellee only recently discovered the execution of the Chase deed. It was also alleged in the complaint that the Chases had no title to the land whatever at the time the deed was made, and that appellant acquired no title under the deed from them.

Appellant filed an answer, denying that appellee owned the land, or that it was included in the Chase deed through mistake. Appellant interposed the further defenses that he and his grantors had paid the taxes thereon for more than seven years under color of title, and that he purchased the land at public sale ordered in a partition suit in said court, wherein J. W. McDaniel was plaintiff and Arthur J. Miller, Lizzie Capps and A. B. Capps were defendants, and obtained a commissioner’s deed therefor, purporting to convey the entire title thereto; that the decree was rendered on April 28, 1925, and contained a recital that each of the parties to the suit owned an undivided three-fifteenths interest therein.

The cause was submitted upon the pleadings and testimony adduced by the respective parties, which resulted in the following findings and decree of the court: The court found that George W. Chase had no interest in the land when he included it in the deed he made to appellant; that Straub had paid taxes on the land for the years 1922 to 1927 inclusive] amounting to $126.12; that, at the time of the partition suit in 1925, appellee actually owned an eight-tenths interest in the land, but was not made a party to the suit; and, pursuant to this finding, the court set aside the decree in the partition suit, canceled the commissioner’s deed, quieted appellee’s title to an eight-tenths interest in said tract of land as against appellant, and adjudged that appellee pay appellant $126.12 to cover the amount of taxes paid by him, together with interest on each tax payment from the date he paid same; from which findings and decree an appeal has been duly prosecuted to this court.

By agreement the parties filed an abstract of the title to the real estate in question as a part of the evidence in the case. Although contained in appellant’s abstract of the testimony, it is too long to incorporate in this opinion. It is not necessary that it should be, in order to determine the question involved on this appeal. According to the abstract, Chase acquired an undivided one-fifth interest in the land on February 13, 1917, and retained it until January 17, 1924, at which time he conveyed it to Bell Beid. The abstract reveals that on June 25, 1921, A. B. Capps conveyed his interest in the land to Frank Capps, and that at that time a four-fifths undivided interest was owned by Frank Capps, Lizzie Capps and Arthur J. Miller, and the other one-fifth interest by J. W. McDaniel. The quitclaim deed from A. B. Capps to Frank Capps was not acknowledged in accordance with the law relating to acknowledgments in Arkansas. The acknowledgment failed to contain the word “consideration.” The abstract reveals that the Capps family acquired a three-tenths interest in the land on April 5 and October '16, 1899, and subsequently other interests, until they owned between them a four-fifths interest therein, either in their own names or in the names of others for them, down to and including the year 1921. The abstract does not disclose what became of the lands after that time.

The record reflects that from 1917 to 1927, inclusive, the land was assessed for taxes' to Bell Reid et al., and that the taxes for 1917 and 1918 were paid by them; that they were paid by J. W. McDaniel et al. for 1919; by C. B. Capps for 1920; by Morning* Star Mining* Company for 1921; and by Theo Straub for all the years thereafter.

The record also shows that on May 1, 1916, Gfeorg*e W. Chase leased the land from Frank L. Wilder, A. B. Capps and Mrs. Bell Reid. This lease recites that Frank L. Wilder owned two-fifths interest, A. B. Capps owned two-fifths, and Mrs. Bell Reid owned one-fifth interest. The lease was for three years, and, according* to its terms, expired on May 1, 1919. The lease required Chase to operate the mine and pay certain royalties to the lessors. It was provided in the lease that, any time during the life thereof, Chase might purchase the land for $12,000, and that, in the event he exercised the option to buy same, he should receive a credit on the purchase price for the amount of royalties paid by him under the lease.

Arthur J. Miller testified that in 1916 and 1917 he held a power of attorney from Lizzie and A. B. Capps to collect the royalties from Chase, and that from March, 1916, to February 10, 1917, he collected approximately $3,500 gross in royalties; that at the time Frank L. Wilder was acting as attorney for Frank Capps, and was holding a title in his own name to the land for Frank Capps, Lizzie Capps and A. B. Capps; that at the time Lizzie .and A. B. Capps claimed to own an eight-tenths interest, and that G-eorge W. Chase did not claim to own any part of the land.

Quitclaim deeds were introduced from Arthur J. Miller and wife to appellee, dated March 17, 1928, and from Lizzie Capps to appellee, dated March 14, 1928.

Appellee testified that he acquired an eight-tenths interest in the land on June 25, 1921, by quitclaim deeds from A. B. Capps, Lizzie Capps and Arthur J. Miller; that the deed from A. B. Capps was filed for record in 1921, but the deeds from Lizzie Capps and Arthur Miller were not filed for record, but were lost; that deeds from them had been .recently obtained and filed for record in place of the ones that were lost.

The abstract also shows that George 'W. Chase, by quitclaim deed dated April 3, 1920, conveyed the land to the appellant, Then Straub.

According to the testimony of a number of witnesses, Chase opened a mine upon the land, and operated same for about twenty years, claiming to be the owner thereof prior to the date on which he conveyed it to Straub; the land adjoined the Morning Star Mining Company’s land, upon which Chase resided. Chase never lived upon the land in question, and it was never fenced. After Chase executed the deed to Straub, he procured a watchman to visit the mine occasionally and see that the machinery and tools used by Chase were not moved away, but he did not operate the mine. After obtaining his deed, Straub paid the taxes for six years before this suit was instituted, amounting to $126.12.

The record reflects that in the year 1925 J. W. McDaniel brought a suit in partition against Arthur J. Miller, Lizzie Capps and A. B. Capps, and obtained an order for the sale of the property; that the decree of partition contained a recital that each of the parties owned an undivided three-fifteenths interest in the land; that at the sale Theo Straub, the appellant herein, purchased the land for the sum of $400, and that, pursuant to the purchase, he received a commissioner’s deed thereto, which was approved by the court; that McDaniel accepted his pro rata share of the $400, and that the remainder is in the hands of the clerk, amounting to $251.14. Appellee was not made a party to the suit.

Appellant’s first contention for a reversal of the decree is that appellee had no title to the land on June 25, 1921, nor acquired any title'after that time. It is argued that, although A. B. Capps conveyed appellee an undivided four-fifteenths interest therein on that date, and that, although the deed was placed of record, it did not constitute notice to the public, because it was not entitled to record, on account of being defectively acknowledged, in that the word “consideration” did not appear in the acknowledgment. It is true that the deed, not being entitled to record, would not protect appellee against a subsequent transfer of the property by A. B. Capps, but it was good as between him and appellee, and passed the title to him. Appellee testified that on the same date Arthur J. Miller and Lizzie Capps conveyed their interest in the land to him, but that the deeds were lost without being- placed of record, but that recently he had obtained deeds from them in lieu of the lost deeds, and placed them of record. Although the original deeds from Arthur J. Miller and Lizzie Capps to appellee were lost, the title passed under the deeds to appellee. Appellant argues that, because the A. B. Capps deed was not entitled to record and that the original deeds of Arthur J.-Miller and Lizzie Capps were not recorded, such title as appellee acquired in them could not prevail over the title he acquired at the sale in the partition suit, in which A. B. Capps, Lizzie Capps and Arthur' J. Miller were defendants. In other words, that, on account of appellee’s failure to record his deeds, he placed it in the power of A. B. Capps, Lizzie Capps and Arthur J. Miller to partition the lands and sell them to parties who had no actual or constructive notice of his title. We do not think appellant is correct in this contention. The only title he obtained at the judicial sale was such title as J. W. McDaniel, Arthur J. Miller, A. B. Capps and Lizzie Capps had. Appellant was in no sense an innocent purchaser for value. He bought it at a judicial sale, and courts do not warrant titles. Appellee was not made a party to the partition proceeding, and was not bound by it. As far as the record.reflects, appellee’s grantors, Arthur J. Miller, Lizzie Capps and A. B. Capps, may not have appeared in the partition suit. The suit was instituted by J. W. Mc-DanieL against them. It may be that the reason they did not appear was that they had conveyed the lands to appellee, and had no interest therein. They have never claimed the proceeds from the sale. The consideration Straub paid for the land at the judicial sale is still in the hands of the clerk. McDaniel is the only one in the partition suit who accepted any part of the' consideration paid by Straub. We do not think that one’s title to real' estate can be affected by a partition proceeding and sale thereunder to which, he was not a party and of which he had no knowledge, whether his title papers be entitled to record or recorded. According to the undisputed evidence, appellee owned an eight-tenths undivided interest in the land at the time same was sold in the partition suit, and his title was not affected thereby, because he was not made a party thereto and had no ¡knowledge of the pendency thereof.

Appellant also contends for a reversal of the decree on the ground that the Chase deed to him constituted color • of title, and that he and his grantors had paid the taxes continuously upon the land for more than seven years. Chase had no actual interest in the land, as far as the record discloses, save and except as a holdover lessee at the time he made the deed to Straub. He therefore conveyed no title to Straub. Treating the conveyance, however, as color of title, Straub only paid the taxes for six years before the institution of the suit. His immediate grantor in the conveyance did not pay the taxes in 1921. According to the testimony, the taxes were paid by the Morning Star Mining Company in 1921, by A. B. Capps in the year 1920', and by J. W. McDaniel in 1919. It would have been necessary for Cfeorge W. Chase to have paid the taxes in 1921 in order for ¡Straub to bring himself within the statute authorizing one who has paid taxes continuously upon wild land under color of title for seven years to have' his title quieted. We do not think that the proof is sufficient to show that Straub and his grantors acquired title to the land by seven years’ adverse possession. The most that it showed was that Straub engaged a watchman to go upon the property occasionally and ascertain whether any of the -mining machinery which had been used by Chase had been disturbed or removed. This act did not constitute the character of possession necessary to acquire title by adverse holding.

No error appearing, the decree is affirmed.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Kinney v. North Memphis Savings Bank.
    Opinion delivered December 17, 1928.

      Hawthorne, Hawthorne & Wheatley, for appellant,

      E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellee.
   Kirby, J.

It is conceded that the decree from which this appeal comes correctly recites the material facts out of which this litigation arises. They are as follows :

On January 10, 1920, John R. Hirschmann, being then the owner of two lots in the town of Lepanto, conveyed them, by separate deeds, to H. S. Portis. In each deed notes were given in part payment of the purchase money, and to secure the payment of these notes, $450 in one deed and $400 in the other, a vendor’s lien was reserved. These deeds were duly recorded February 2, 1920. On February 6, 1920, which was prior to the maturity of any of the notes, Hirschmann, for value, indorsed these notes to the North Memphis Savings Bank as collateral security for certain indebtedness to it, but no assignment of record of the lien retained by Hirschmann was made.

Portis, the grantee in the deeds, became insolvent, and receivers were appointed, who took over the assets, and he executed to them a deed for the lots in question, and the receivers conveyed the lots, on February 19,1923, to 'Charles E. Kinney, for the consideration of $710. Prior to the execution of this deed to Kinney, a deed releasing the vendor’s lien above mentioned had been executed by Hirschmann to the receivers. Hirschmann, at the time of the execution of this release deed, was the record owner of the lien it released. This deed was executed and delivered by Hirschmann on the 25th day of-March, 1920, without the knowledge or authority of the bank, and was not recorded until April 30, 1926. The North Memphis Savings Bank, for the benefit of its assignee, the Union & Planters’ Bank & Trust Company, brought suit in 1924 upon the notes to foreclose the vendor’s lien, and Kinney answered, and denied that the bank had a lien.

Upon these facts the decree recites that: ‘ ‘ The court finds that, through the deed of John R. Hirschmann to H. S. Portis, defendant, Charles E. Kinney, as a matter of law, had notice of the transfer of the notes in question to the plaintiff bank, and that Hirschmann was not the owner thereof at the time he executed the release mentioned, and that under settled principles defendant, Kinney, was not an innocent purchaser of the property, the subject-matter of this action, and that the plaintiffs are entitled to enfor'ce the liens claimed by them.”

It is conceded that the decree herein appealed from accords with the law as announced in the case of Driver v. Lacer, 124 Ark. 150, 186 S. W. 824, but it is earnestly insisted that the law of that case has been changed by §§■ 2 and 3 of act 374 of the Acts of 1917, which appear as §§ 7399 and 7400, C. & M. Digest. Section 2 of this act, which became § 7399, C. & M. Digest, reads as follows:

“Section 7399. Satisfaction of any mortgage, deed of trust, vendor’s lien, or lien retained in deed or note made and indorsed on the margin of the record where snch instrument is recorded, by the mortgagee, trustee, beneficiary, agent of the owner of record of such indebtedness, or by the owner of record thereof, shall be full and complete protection for any subsequent purchaser, mortgagee, or judgment-creditor of the mortgagor or grantor, unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby, has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving the name of the transferee or assignee, together Yidth the date of such transfer or assignment, said signature to be attested and dated by the clerk. Provided that, where it shall appear from a memorandum indorsed upon the margin of the record and attested as hereinbefore provided, that the said mortgage, deed of trust, vendor’s lien or other evidence of indebtedness has been transferred, satisfaction shall be made by the party appearing therein as the transferee.”

By § 3 of the act, which became § 7400, O. & M. Digest, it is provided that the effectual discharge of any lien, etc., may be made by a separate release deed or instrument, duly executed, acknowledged and recorded, which instrument, when so recorded, shall be of the same effect as a marginal entry.

In the -case of Hebert v. Fellheimer, 115 Ark. 366, 171 S. W. 144, it was held that, where a deed reserving a vendor’s lien to secure the payment of purchase money notes was recorded, an innocent purchaser of the notes was entitled to enforce the lien retained for their payment, and that this right was not defeated by a subsequent re-conveyance by the buyer to the seller, and that all subsequent purchasers of the land took subject to the vendor’s lien thereon, and it was further held that a notation on the margin of the record was unnecessary to show an assignment of the notes in order to reserve to the purchaser of the notes the lien retained in the deed.

The case of Driver v. Lacer, supra, was somewhat similar, except that Billy, the original grantor in the Driver case, in whose favor the vendor’s lien was reserved securing the unpaid purchase money notes, obtained a reconveyance of the land to himself ¡before he had transferred the notes. It was held, however, that this fact did not prevent the case.from being ruled by the decision in the case of Hebert v. Fellheimer, supra, the applicable and controlling principle of law being that one is bound by whatever affecting his title is contained in any instrument through which he traces title, even though it be not recorded and he had no actual notice of its provisions. As the purchaser of the notes in the Driver case paid value for them, before maturity, and without notice of the reconveyance of the land to the original grantor, it was held that the purchaser of the notes had the right to enforce the equitable vendor’s lien reserved in the original conveyance.

Obviously, act 374, as well as act 371 of the 1917 General Assembly, was intended to change the- rule as announced in these cases, act 371 applying only to instruments -of record prior to February 5, 1917.

'Section 2 of act 374 of 1917 gives to any person who, according to the face of the record, is the owner of any of the liens there mentioned, the right to satisfy the liens of record by indorsements on the margin of the record where the instrument is recorded, and, when this is done, the subsequent purchaser, mortgagee, or the judgment-creditor, is protected against -such lien, “unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby, has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving* the name of the transferee or assignee, together with the -date of such transfer or assignment, said signature to be attested and dated by the clerk.” Thereafter follows the proviso that, when this memorandum is indorsed upon the margin of the record, satisfaction of the record can only be made by the transferee. In other words, the assignee of the note or debt secured by the lien takes, by the assignment, the lien securing the debt, but, if he neglects to have indorsed on the margin of the record the memorandum showing that the lien has been transferred to him, he is subject to have his lien defeated if satisfaction of the lien is indorsed on the margin of the record by the apparent owner of the lien.

That was done here. The bank took the notes as an innocent purchaser, but the court found that “no assignment of record of the lien retained by Hirschmann was made to the bank. ’ ’ ¡Subsequently Portis executed a deed to the receivers of his estate, and Hirschmann, while apparently the owner of the vendor’s lien, so far as the record reflected, executed the release deed. It is true the bank then held the notes, but it held them without having caused the notation to be made on the margin of the record, which would have protected its lien under the statute. In other words, unless and until the statute is complied with, one may deal with the person who, from the face of the record, is the owner of the lien, as if he were the owner, and will be protected in so doing.

It follows therefore that the decree of the court below must be reversed, and it is so ordered, and the cause will be remanded with directions to deny the bank the right to foreclose the lien, but judgment will be rendered on the notes for the amount thereof.


author: Mehaffy, J.

text:
    Spears v. Spears.
    Opinion delivered December 17, 1928.

      Gaughan & Sifford, Marsh, McKay & Marlin and Mahony, Yocum & Saye, and I. H. Spears, for appellant.

      G. E. Snuggs and Powell, Smead & Knox, for appellee.
   Mehaffy, J.

The appellee, Lesser Lee 'Spears, filed this suit in the Ouachita Chancery Court against Buena B. Spears, Isaiah H.' Spears, D. W. Chenault, T. W. C'henault, Humble Oil & Befining 'Company, Standard Oil Company of Louisiana, Standard Pipe Line Company, Southern Crude Oil Purchasing- Company and the Lion Oil Befining Company. Appellee thereafter filed an amended and substituted -complaint, naming other parties as defendants. She alleges in her substituted complaint that she is a citizen and resident of Florida, and that the defendant, B. B. Spears, is a resident of Jefferson County, Arkansas; that the defendant, Isaiah H. -Spears, is a resident of the State -of Oklahoma; that the corporations named as defendants are nonresident corporations, authorized to do business in the State of Arkansas, and that the other defendants are nonresidents of Arkansas, -except the defendants C. H. Murphy, Mrs. C. H. Murphy, Bruce Hunt, Mamie Smith MeCurray, J. A. Bowland, Mrs. J. A. Bowland, C. E. Murdock and Mrs. C. B. Murdock, and alleges that they are citizens -of Union County, Arkansas.

She alleges that she and A. W. Spears, now deceased, were lawfully married in January, 1898, in Jackson County, Florida; that A. W. Spears is now deceased; and that, in pursuance of said marriage, they lived and cohabited together as husband and wife, in Jackson Comity, Florida, for about four years, when tbe said A. W. Spears deserted her, left the State of Florida, and later located in the city of Pine Bluff, Arkansas; that there were two children born to them 'before Spears deserted her, one of whom died, and the other now lives in Jackson County, Florida. She alleged that Spears at all times knew the whereabouts of plaintiff, or could have known by inquiry; that at the time of the desertion she was, and has been at- all times since their marriage and until the death of said A. W. Spears, his lawful wife, and that .she is now his widow.

'She alleges that Spears, during his lifetime, owned an interest in certain property, describing it, in Ouachita County, Arkansas, and Union County, Arkansas, and that the deeds conveying to him certain property are recorded in said -counties; that she is entitled to dower rights in the property described in her complaint; that the conveyances made by Spears of the property, oil, gas and mineral leases, were made without her knowledge or consent, were not executed or acknowledged -by her, and that her dower right and interest in the property was never relinquished.

She then alleges the leasing and assignment of leases and transfers to other persons by said A. W. Spears, and claims that all the transfers were made without her knowledge or consent, and not executed by her, and that the parties holding the same have refused to account to her for her dower interest,’and she prays for an order and decree for her interests in all of said property, as mentioned in her complaint. She also propounds certain interrogatories -to certain of the defendants.

The defendants, answering, denied all the material allegations of the plaintiff’s complaint with reference to her residence, her marriage with A. W. Spears, and that Spears knew of her whereabouts; alleged that she was not the lawful wife of A. W. Spears, and that she had no right, title, 'claim or interest in any of the property.

It is also stated in the answer of the defendants that A. W. Spears and Roena Spears were married at Pine Bluff, Arkansas, in November, 1912, and that plaintiff knew of this marriage many years prior to the death of Spears, and 'knew that A. W. Spears and Roena Spears were living and cohabiting together in the State of Arkansas as man and wife from the time of their marriage in 1912; that she also knew that A. W. Spears was practicing law in Arkansas, and knew that he was transacting business in general, buying and selling real estate, and that Roena Spears was joining with him in his conveyances for many years prior to his death. It is also alleged that plaintiff knew about the execution of the mining leases.

Defendants further allege that in September, 1925, the plaintiff filed a petition in the Jefferson County Court, alleging that, at the time of the death of Spears, she was his lawful wife, and at the time of filing his petition she was his widow, and that she had a dower interest in his estate, and alleged that the marriage between A. W. Spears and Roena Spears was bigamous and void. She' asked that Roena E. Spears be discharged as administratrix, and a competent person appointed.

Roena Spears filed an answer, denying the allegations of plaintiff, and the probate court made an order discharging Roena Spears as administratrix, and appointed Coy M. Nixon as administrator. Roena Spears appealed to the circuit court, and the circuit court reversed the judgment of the probate court, and removed Nixon as administrator, and reinstated Roena. E. Spears. This .judgment is pleaded in bar of this action.

The issue in this case is whether the plaintiff, as the widow of A. W. Spears, is entitled to dower rights in the property.

The evidence shows that the plaintiff and A. W. Spears were married on the 26th day of January, 1898, in Jackson’County, Florida, near the town of Cottondale. They lived together as husband and wife in Jackson County, Florida, for about two years, when A. W. Spears left the plaintiff, and afterwards began the practice of law at Pensacola, and practiced law there until some time in August or September, 1902, when he left there, without any intimation to his wife that he intended to leave, and without obtaining’ a divorce from her. He visited his wife and his people a time or two while he lived at Pensacola.

After Spears left Pensacola he settled in Pine Bluff, Arkansas, and began to practice law there. There were a few months between the time he left Pensacola and the time he located in Pine Bluff, Arkansas, that his whereabouts were not known, but he wrote a letter indicating that he had been in several States. He could not, however, have remained very long in any one of them.

After locating in Pine Bluff, in the year 1909 Spears married Minnie Temple, and they had four children, but it appears from the evidence that two of them were born before their marriage in 1909, Spears and Minnie Temple having lived together before they were married. There was never any secret about their living together, even before 1909, but he lived with her as- his wife, and it is argued that it was very probable that there had been a prior marriage discovered to be illegal in some respect, and that this was the cause of the marriage in 1909. This, however, is not material, because he lived with her as his wife until she died in 1911.

About a year after Minnie Temple died, Spears married Poena Lyles, and they lived together as man and wife from 1913 until Spears died in 1925, Poena taking care of his children and living with him openly as his wife during’ all that time, about 12 years. The marriages, both to Minnie Temple and Poena Lyles, were at Pine Bluff, Arkansas, and were public, and they continued to reside there openly and publicly as man and wife, and Spears’was engaged in the practice of law during that time.

The appellee knew of Spears’ marriage for several years, but she did not notify the woman who was living with him that she- was his wife, and never made any claim upon him, although she knew where he was, but claims that she burned the letters that she had received from Spears. The appellee’s contention, however, is that Spears could not have obtained a lawful divorce except in Jackson or Escambia County, Florida, and that the proof showed that he did not obtain a divorce at either of these counties, and there can be no presumption that he attempted to unlawfully obtain a divorce from her.

The first question presented and argued- by counsel is whether the presumption that the marriage of A. W. Spears to Minnie Temple and his marriage to Eoena Lyles were lawful, and not criminal. The appellant contends that appellee has not overcome this presumption.

Appellee testified that, after she and Spears were married in 1898, they lived together in Florida as husband and wife until the year 1900, when Spears went to Pensacola and began the practice of law there; that he practiced law there until the latter part of August or the first of September, 1902, when he left Pensacola, and the State of Florida for no apparent reason, and without any notice or intimation to appellee that he intended to leave, and without obtaining a divorce. That during the time he stayed at Pensacola he visited his wife and family at intervals, and frequently contributed to their support. While in Pensacola he stayed with appellee’s brother most of the time. She also testified that she had given Spears no cause for divorce or for deserting her,-and had never done any of the things for which a divorce might be granted in Florida; that she had never been summoned in any divorce case brought by Spears; that she had never filed any suit for divorce herself, and that she had at all times been ready to move to the residence of Spears, but that he requested her to wait until he got his business straight and he would send for her.

The appellee has also proved that no divorce was granted in the county of Jackson or Escambia County, Florida, the only places where it is shown that Spears lived in Florida.

The proof further shows that Spears went to Memphis and stayed a while, and also to Covington, and that no divorce was granted in either of those counties. The proof also shows that no divorce was granted in Jefferson County, Arkansas, and that no divorce was granted in St. Bernard Parish, Louisiana.

Appellee contends that this overcomes the presumption that Spears’ second marriages were innocent, because he could only have been absent or away from the places mentioned for a few months, and not long enough to establish a residence in any other .State. However, the proof does not show that Spears did not obtain a divorce in some county in Florida besides the one whose records were searched; it does not show that he did not get a divorce somewhere in Tennessee in some county 'other than Shelby or Tipton, and the proof does not show that he did not get a divorce in some county in Arkansas.

While the law requires a residence in a State for a certain length of time, it is not required that the party bringing the suit reside in the county where he brings the suit for this length of time. One might reside in Jefferson County, Arkansas, a year or more, and then establish a residence in Cleveland County, or some other county in Arkansas, where he could obtain a divorce, and then move his residence back to Pine Bluff, It is not at all impossible that he could do this without the people of Pine Bluff knowing anything about it or recalling it after so long a time. In fact, it appears very much more probable that he did something’ of this sort than that he would marry a woman in Pine Bluff, live with her as his wife, openly, raise children, and then, when she died, marry another woman publicly in Pine Bluff, Arkansas, and live with her many years, when, if he did not have a divorce, he would, of course, be guilty of a felony. The probability that he would not do. this is strengthened by the fact that he was a lawyer, and knew that he was guilty of a felony if he did not have a divorce from his first wife. He knew that his first wife knew all about what he was doing in Pine Bluff, and knew that her people knew it. It would be entirely unreasonable to suppose that a man would incur the guilt of felony and the danger which attends the guilt of felony by marrying another woman, living openly with her as his wife for a number of years, and then, after her death, marrying another woman and living openly with her, when he knew what the penalty of violating the law was.

We think the presumption that the marriages of Spears were innocent is also strengthened by the conduct of appellee and her people. Her brother visited at the home of Spears in Pine Bluff several years before his death. He was at that time living with a woman -in the city of Pine Bluff, whom he claimed as his wife. At one of the visits of appellee’s brother to the home of Spears, Spears himself was absent at El Dorado, where he was spending some portion of his time after the development of oil in Union County. The brother returned home, where the appellee lived, and she admits that she knew about the situation at Pine Bluff, and knew that A. W. Spears was living with a woman as his wife and raising a family; she knew he was dealing in Union County, and yet she never called on him for any assistance or made any claim whatever. Her conduct, as well as the conduct of her people, is a very strong circumstance tending'to show that she had no claim on Spears, and it supports the presumption that Spears’ conduct was not unlawful, but that he had obtained a divorce somewhere, and that his marriages in Pine Bluff were lawful.

Appellee cites and quotes from the case of King v. Twyning, 2 B. & Ald. 384. The quotation is as follows:

“The law always presumes against the commission of crime; and therefore, where a woman, twelve months after her first husband was last heard of, married a second husband, and had children .by him, held, on appeal, that the sessions did right in presuming prima facie that the first husband was dead at the time of the second marriage, and that it was incumbent on the party objecting to the second marriage to give some proof that the first husband was then alive.”

Appellant contends that this first announcement of the law, or the first decision to which she has referred, was thereafter construed and modified, and quotes the following:

“There is no absolute presumption of law as to the continuance of life, nor any absolute presumption against a party doing an act because the doing of it would make him guilty of an offense against the law. In every instance the circumstances of the case must be considered. ” Lapsley v. Grierson, 1 H. L. C. 489.

The court also said, in the case of King v. Twyning, supra:

“It is not necessary for the court in this case to impugn the authority of the cases which have been cited nor to vary the ordinary presumptions which exist both in civil and criminal cases; for this is a case of conflicting presumptions, and the question is which is to prevail. The law presumes the continuation of life, but it also presumes against the commission of crime, and that even in civil cases, until the contrary be proved.”

The court then, after calling attention to the cases with reference to presumption of life and presumption of innocence, continued:

“The cases cited only show when the presumption of life ceases, even where there is no conflicting- presumption. The facts of this case are that there is a marriage of the pauper with Frances Burns, which is prima facie valid. But, the year before that took place, she was the wife of Richard Winter, and if he was alive at the time of the second marriage, it was illegal, and she was guilty of bigamy. But are we to presume that Winters was then alive? If the pauper had been indicted for bigamy, it would clearly not be sufficient. In that case Winters must have been proved to have been alive at the very time of the second marriage. It is contended that his death ought to have been proved, but the answer is that the presumption of law is that he was not alive when the consequence of his being so is that another person has committed a criminal act. I think therefore that the sessions decided right in holding the second marriage to ha.ve been valid, unless proof had been given that the first husband was alive at the time.”

It will therefore be seen that the case to which attention is'called by appellee holds that the presumption of innocence overcomes the presumption of life. In the instant case, there was a marriage between Buena Lyles and A. W. Spears. But, many years before that time, A. W. Spears had married the appellee, and, if no divorce had been granted at the time of the second marriage, it was illegal, and Spears was guilty of bigamy. The presumption is that he was not guilty of bigamy, and, as said in the case referred to, the appellee must prove that no divorce was granted, or, at any rate, make sufficient proof that there was no divorce granted at any place to overcome the presumption of innocence.

In the next case referred to by appellee, the legitimacy of the children claiming* the property was an issue. It was claimed that the mother of these children was never married to John Lapsley, and the closing* paragraph of that case reads as follows: “This is a case entirely of fact, and the evidence satisfies me that in fact these parties did-not live together as man and wife.”

The court in the last case also discusses the case of King v. Twyning and other cases. The court also used the language quoted by appellee, but we do not think that the decision there is in conflict with the principles herein announced, nor is it against the decision in the Lathan case. It states plainly that in every instance the circumstances of the case must be considered.

"When we consider the circumstances of the instant case, we think no other conclusion can be reached than that the presumption of innocence of Spears at the time of the two marriages must prevail. And all that was held in the case of Brokeshoulder v. Brokeshoulder, Okla. 204 Pac. 284, as we understand it, was that a presumption of the legality of marriage is not a conclusive presumption. A presumption of innocence is not a conclusive presumption.

“It has been seen that, where a person has been twice married, it may be presumed in favor of the second marriage that at the time thereof the first marriage had been dissolved (by divorce or by death of the former spouse. This presumption, however, is not conclusive; the party against whom it operates may rebut it by any competent evidence tending to show that at the time of the second marriage the first marriage was subsisting. The presumption may nevertheless be reinforced by proof of such facts as will establish a dissolution of the prior marriage; and on an issue as to the validity of a marriage, hearsay evidence that the husband had previously been married to another woman is offset by hearsay evidence that he was subsequently divorced from her. ’ ’ 26 Cyc. 896.

We think the presumption in this case is reinforced by all the facts and circumstances in evidence. The fact that appellee, with her two children, knew all about where Spears was and what he was doing, and for more than twelve years had no communication with him; never called on him for alimony or support of any kind; the fact that she knew that he was living with another woman and raising a family; the fact that her brother would go to see Spears and visit in the family; the fact that Spears was a lawyer and knew the penalty of marrying a second time if he had no divorce — are all facts reinforcing the presumption of the validity of the second marriage.

“It is a well established principle that the presumption is always in favor of innocence, and this presumption, although rebuttable, remains good and must be acted on until it is disproved. While this, principle is most important in criminal cases, it is frequently invoked-and relied on in civil cases, in which it restates the alleged presumption against illegality, etc., as' a regulation of the burden of evidence, and applies whether the question of innocence or guilt is directly or only collaterally involved.” 22 C. J. 144.

“Where a man and woman have openly cohabited as man and wife and had the reputation of being such, it will be presumed that they were lawfully married; and where a marriage is proved, it will be presumed that it was regular and valid. There is also a presumption in favor of the legitimacy of a child.” 22 C. J. 145.

Appellee has called attention to many authorities to sustain her contention, but we think it would serve no useful purpose to review all these authorities. We think, in fact, that this question is settled by this court in the case of Lathan v. Lathan, 175 Ark. 1037, 1 S. W. (2d) 67. The facts in that case tending to prove that no divorce had been granted, we think, are stronger than in the instant case. Among other things, the court there said, quoting from another authority: “There was also a presumption that appellant’s marriage with Jane Honeycutt was lawful, innocent, and not criminal. It is supposed that a man will not incur the guilt of felony and danger which attends it by marrying another woman during the life of one to whom he has previously been lawfully married. ’ ’

This court, in the same case, also quoted with approval the following:

“So strong’is the presumption, and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains, even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage .is established by proof, it is not sufficient to overcome the presumption of the' validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.’’ See Lathan v. Lathan, 175 Ark. 1037, 1 S. W. (2d) 67, and authorities cited there.

We think the decision in the Lathan case is conclusive here. And, since we hold that the presumption of the validity of the second marriage is not overcome by the evidence, it becomes unnecessary to discuss the other questions raised and discussed by learned counsel.

Our conclusion is that the appellee failed to overcome by proof the presumption of the validity of the. subsequent marriage and the presumption of innocence of Spears, and that the case shall therefore be reversed and remanded, with directions to dismiss appellee’s complaint.


text:
    Missouri Pacific Railroad Company v. Edwards.
    Opinion delivered December 17, 1928.

      Thos. B. Pryor and H. L. Ponder, for appellant.

      S. C. Knight, for appellee.
   Mehaffy, J.

The appellee brought suit against the appellant for damages for killing two dogs. One count of appellant’s complaint alleged that a dog of the value of $100 was killed in August, 1927, and one dog of the value of $250 was killed in January, 1928. After the evidence was introduced and. the jury instructed, the plaintiff dismissed the cause of action for the dog killed in August, 1927, because of tbe failure of proof, and the jury returned a verdict for. $250 for killing the second dog.

Appellant filed motion for a new trial, which was overruled, exceptions saved, and the case is here on appeal.

The evidence shows conclusively that the dog was killed in January, 1928; the plaintiff himself testifies to the killing, and Rogers, witness for the defendant, testifies as to the killing by the train. Moreover, defendant, in its answer, admitted killing the dog.

"Whenever an animal is killed by the operation of a train, the presumption is that the company was guilty of negligence, and there is no proof offered by the appellant in this case to overcome this presumption. Neither the engineer nor the fireman that operated the train that killed the dog testified. There was an engineer who testified in the case about the killing of the first dog’, and he also testified about the condition of the track at the place this dog was killed, but he was not on the engine that killed this dog’, and knew nothing about the circumstances of its killing. Both the engineer and Rogers, a witness for the appellant, testified that this dog was killed near la curve, and that, in approaching the place where the dog was killed, the engineer could not see ahead at the place where the dog was killed. But both of them admit that the fireman, who was on the other side of the engine, could see. They say, however, it was probable that he was not keeping a lookout, ‘but was performing some other duty. This, however, they do not claim to know anything about, and the fireman did not testify.

'This court has often held that, while the engineer and fireman both are not required to keep a lookout, yet the company is required to keep an efficient lookout, and, at places where it would be useless for the engineer to keep a lookout, of course it is the duty of the fireman to keep a lookout.

The appellant argues that the complaint was insufficient, and that its demurrer should have been sustained. The complaint alleged the killing of the dog by the operation of the train, and that was a sufficient allegation. Of course, if the complaint did not state sufficient facts to enable the appellant to prepare for trial, it was its duty to file a motion to make the complaint more specific. The court doubtless would have required the plaintiff to state, if he could, what train killed the dog, so that the railroad company could have the persons operating that train present at the trial, and would probably have required the plaintiff to state what acts of negligence the railroad company committed, if he knew. But the appellant did not file any motion requesting any more information, but its answer indicates that it knew all about it, because it stated that in each instance the dog ran on to the track immediately in front of the engine, and ran down the track. And having this knowledge is probably the reason that it did not ask for any more specific statement in the complaint.

Appellant complains about a portion of the proof because he says there is no allegation in the complaint that the railroad company failed to keep a lookout, etc.; but when the appellee alleged that the dog was negligently killed by the operation of the train, it stated a cause of action under which it might offer proof of any negligent act that caused the killing of the dog.

Appellant also argues that the railroad company owes a trespasser no duty until his peril is discovered, and calls attention to some cases holding this. These cases, however, were decided prior to the passage of the statute under which this suit is brought. Under the present statute the railroad company is required to keep a lookout for persons and property on its track, and if it fails to keep that lookout, the burden is upon it to show that, if the lookout had been kept, the injury could not have been avoided. And this is true whether the animal or person on the track is a trespasser or not. The duty is to keep a lookout for all persons and property on the track.

“In other words, the statute makes it the duty of the railroad company to keep a lookout for property upon its tracks, and it makes it liable for all injuries that occur by reason of its failure to perform this duty. Under the lookout statute, when the plaintiff has proved facts and circumstances from which the jury might infer that his property had been injured on account of the operation of the train and that the danger might have been discovered and the injury avoided if a lookout had been kept, then he has made out a prima facie case, and the burden is on the defendant to show that a lookout was kept as required by the statute.” Kelly v. DeQueen & Eastern R. Co., 174 Ark. 1000, 298 S. W. 347.

In the instant case there is no showing that any lookout was kept, and the plaintiff testified that the track was straight and even when they got to the curve. All of the testimony shows that, while the engineer could not have seen the dog, the fireman could.

Appellant cites and quotes from C. R. I. & Pac. Rd. Co. v. Jones, 124 Ark. 523, 187 S. W. 436, but all the court in that case said was that the company owed a trespasser no duty until he was discovered, or, by the exercise of ordinary care, could have been discovered. It necessarily means that they must keep a lookout. Ordinary care requires a constant lookout, and, if the lookout is kept and the property on the track is not discovered, the company would owe no further duty. That is, it must keep a constant lookout, and if such lookout is not kept, then the burden is on the railroad company to show that, if the lookout had been kept, the injury could not have been avoided.

Appellant argues and cites authorities to show that the testimony of the engineer and fireman cannot arbitrarily be set aside by the jury. We agree with the appellant in this statement of the law, but in the instant case neither the engineer nor the fireman testified at all. It is argued, however, that there is no allegation in the complaint that the railroad company had failed to keep a lookout. This is a statutory duty, and when the plaintiff alleged that the dog was negligently killed by the operation of the train, and no motion to make more definite and certain was filed, it was proper to permit the introduction of the proof about lookout, or proof that, if a lookout had been kept, the dog could have been seen.

The instructions are as favorable to appellant as it had any right to have given, and the question of negligence is a question of fact, and it was the province of the jury to determine all the questions of fact.

It is argued that the verdict is excessive. The appellee himself testified that-he dealt in dogs, and knew a good deal about them and their value, and that in his judgment the dog killed was of the market value of $250. We think this was sufficient evidence on which to base the verdict. The introduction of the testimony about the dog taking prizes and about the ribbons, we think, was not prejudicial, and tended to show the value of the dog.

The verdict of the jury as to facts is conclusive here, although we might think that the verdict was against the preponderance of the testimony. The question here is, was there any substantial evidence to support the verdict? We think there was.

The ease is therefore affirmed.


author: McHaney, J.

text:
    Griffin Grocery Company v. Thaxton.
    Opinion delivered December 17, 1928.

      Malcolm E. Rosser and Daily £ Woods, for appellant.

      Warner & Warner and Cravens & Cravens, for appellee.
   McHaney, J.

Appellee had for many years been in the employ of appellant, and, on October 1, 1927, at the time he was discharged, w~as a director, vice president and manager of the Fort Smith branch house of appellant company. He had been the manager of this branch house since its establishment. During the year 1926 he was paid a salary of $300 per month, and was given a bonus of $530, consisting of five shares of preferred stock in appellant company, and $30 in cash. No new contract was made with the company for his services- in 1927, appellee testified,, until the latter part of April, when Mr. J. T. Griffin, president of appellant, was in Fort Smith, and agreed with him that his salary for 1927 should be the same as for 1926, except that, if the company made net earnings of $75,000 or more for that year, he would be paid an additional sum of $1,400 as salary. After returning to his home in Muskogee, Oklahoma, and on May 3,1927, Mr. Griffin wrote appellee the following letter confirming their agreement:

"Referring to my conversation with you last Saturday evening, it is agreed and understood that in the event the net earnings of this company for this year equal or exceed the sum of $75,000, you are to be paid an additional salary of $1,400 in cash, as soon after the first of January, 1928, as the statement is figured and made up. I am confident that the company will earn that amount, or more. If it don’t, I will be. .grievously disappointed. I know that you are going to do your full part in helping it earn all possible.

"Please file this letter away so that you will have a record of it, and can refer to it in case of necessity. I am filing my copy in my personal file. None of us know what might happen to us during the year, and while I hope to live a long, long time, of course life is uncertain.

"Yours very truly,

"Griffin Grocery Company,

"J. T. Griffin. ’ ’

Mr. Griffin and appellee had for years been the best of friends, but, early in September, 1927, they became estranged, which grew out of reciprocal caustic criticisms in frequent and lengthy letters written by each to the other, finally resulting in the discharge of appellee on October 1,1927. .Appellee brought this suit to recover his salary for October, November and December, $900, and for the bonus or additional salary of $1,400, the net earnings for the year being in excess of $75,000. There was a verdict and judgment for $1,400 only, and the case is here on an appeal and cross-appeal.

Appellant’s first contention for a reversal is that the court erred in denying its request for a directed verdict, on the ground that the undisputed evidence justified appellee’s discharge. The undisputed evidence referred to consists very largely .of the correspondence between appellee and Griffin heretofore referred to, which is too lengthy to be set out in this opinion. We have read these letters carefully, and have reached the conclusion that the letters of appellee constituting the alleged acts of insubordination and insolence were provoked, in a measure, by letters from appellant’s president. At least we do not think the court would have been justified in directing a verdict. The court properly submitted this question to the jury, under instructions not complained of, which were perhaps more favorable to appellant than the situation in this ease justified. These instructions told the jury, in substance, that it was the duty of the employee to refrain from acts or conduct of insubordination and the use of disrespectful language towards his employer, and that a violation of such duty would justify his discharge, unless reasonably provoked or brought about by the employer’s conduct. This is undoubtedly the correct rule as between master and servant, employer and employee. Here the employee was not a mere servant or employee, but was a stockholder, director, vice president, and manager of a branch house. He had, to the amount of his stock, the same interest in the business the president had, although the president owned the majority of the stock and was the dominating head of the company. In Hale Hardware Co. v. Ragland, 165 Ark. 258, 263 S. W. 962, we said:

“The general rule is that any person may lawfully refuse to continue in his employ a servant who has shown himself to be negligent, incompetent, inefficient, or dishonest. Ragland was impliedly bound by his contract of employment to serve the Hale Hardware Company faithfully and to refrain from doing any act knowingly and willfully which might injuriously affect the business of his employer. This court has expressly held that a servant, while engaged in the service of his master, has no right to do any act which may injure his trade or undermine his business. McMurray v. Boyd, 58 Ark. 504, 25 S. W. 505.”

There is no charge that appellee was “negligent, incompetent, inefficient or dishonest,” but only insubordination or effrontery to the president and the failure of that branch office to prosper were charged.

In Lábátt on Master & Servant (2d ed.), p. 932, it is said:

“As tbe various kinds of language and behavior which constitute a breach of the duty now under discussion are described by terms which are not susceptible of any precise legal definition, the question whether, in any given instance, a breach was committed, is essentially one of fact, and therefore primarily for the jury. In determining this question, the nature of the occupation to which the given service has relation, and the social status and environment of the parties, are material elements for consideration.”

Several assignments of error relate to the giving and refusing to give certain instructions, over appellant’s objections and exceptions. We do not set them out and discuss them separately. Suffice it to say that we find these assignments not well taken. Instruction No. '2 requested by it was to the effect that the bonus offer in the letter heretofore quoted was without consideration and that appellee could not recover same. The evidence on this question was in conflict. The president testified that he made the contract with appellee about the first of the year 1927 to pay him $300 per month, and that he wrote the letter in Ma}^ thereafter. Appellee testified that the contract for 1927 was made the last of April, and in this he is somewhat corroborated by the letter. At any rate, this was a question of fact for the jury, which was property submitted in instruction No. 9.

It is finally insisted that the court erred in refusing to permit appellant to offer the appellee’s complaint in evidence. It was offered to show that the contract for the salary and that for the bonus were separate and distinct contracts, and that the bonus contract was therefore void for want of consideration, or at least contradicted appellee’s testimouy regarding the contract. The proof showed that the allegations in the complaint in this regard were made by counsel under a mistake of fact; that appellee did not so state the matter; that he did not sign, it, and had never seen it until it was offered in evidence. In this respect this case is ruled by Taylor v. Evans, 102 Ark. 640, 145 S. W. 564; Henry Wrape Co. v. Barrentine, 129 Ark. 111, 195 S. W. 27.

Appellee, on liis cross-appeal, says that tbe verdict of tbe jury is inconsistent; that by rendering a verdict for the bonus it was necessary for tbe jury to find that he was wrongfully discharged, and, if so, be was entitled to the $900 salary. We are asked to enter such a judgment here. We do not agree with appellee. Tbe jury might have -found that be was rightfully discharged, but, having worked nine months of the year, was entitled to the $1,400 as additional salary. But, even though the verdict is inconsistent, we would not feel justified in setting it aside, on the authority of the recent ease of Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49.

The judgment will be affirmed both on the appeal and the cross-appeal.


text:
    McIlroy Banking Company v. Mills.
    Opinion delivered December 17, 1928.

      John Mayes, for appellant.

      J. S. Combs and J. B. Harris, for appellee.
   McHaney, J.

Appellant secured a judgment against Boyd & Phipps, in the Madison Chancery Court, on October 25, 1924, in the sum of $700 and interest. It did nothing to collect said judgment until July 7, 1927, when it caused an execution to be issued by the clerk of said court and delivered to the sheriff, who promptly went to the vicinity of the residence of the judgment debtors and made inquiry as to what property, if any, they owned, and was, advised that they did not own anything of value. One of them had become a nonresident of the State. On July 9 the sheriff returned the execution to the clerk, indorsed that he had served the writ but found no property, real or personal, out of which to collect the debt, which was in fact a true return as conditions then existed. As a matter of fact, Boyd & Phipps were the owners of certain lands in that county at the time said judgment was rendered, hut which they had sold and conveyed to the appellee, Mills, on May 20,1925, at a time when the lien of said judgment was an incumbrance thereon.

On September 27, 1927, appellee, John A. Phillips, the sheriff, wrote appellant he had examined the records and found that Boyd & Phipps had sold the land to Mills after the bank’s judgment, and that he would advertise and sell the land as soon as he could give notice to the parties. An alias execution was issued by the clerk on November 16, and the sheriff made a levy on the land and advertised it for sale. Mills then broug’ht this action to enjoin the sale, setting up, his title, and that the lien of appellant’s judgment had expired on October 25,1927. Appellant filed an answer and cross-complaint, making the sheriff, Phillips, and his. bondsmen parties defendant, and prayed judgment against them for the failure, refusal and neglect of the sheriff to promptly levy the execution of July 7 on said land. It was charged that the failure of said officer to levy said execution was willful and with the intent to let the lien of the judgment expire as a result of a conspiracy with said Mills, and to prevent appellant from collecting its debt.

The court found that Mills purchased said land for a valuable consideration, in good faith, and without actual notice of said judgment, and permanently enjoined the sale thereof under the levy made in November. On the cross-complaint the court further found that the sheriff had used due diligence, was guilty of no negligence in the matter, and that appellant had given no directions to the sheriff as to what property to levy on, and that, after it discovered that a sale of land had been made by the judgment debtors after said judgment was rendered, it neglected to cause an alias execution to issue before the lien of its judgment expired. The court therefore dismissed the cross-complaint for want of equity..

This action against the sheriff is based on § 4360, C. & M. Digest, which reads as follows:

“If any officer to whom any execution shall be delivered shall neglect or refuse to' execute or levy the same according to law, or shall take in execution any property, or if any property be delivered to him by any person against whom an execution may have been issued, and such officer shall neglect or refuse to make sale of the property so taken or delivered according to law, or if any such officer shall not return any such execution on or before the return day therein specified, or shall make a false return thereof, then, and in any of the cases aforesaid, each officer shall be liable and bound to pay the whole amount of money in such execution specified, or thereon indorsed and directed to be levied; and it shall be the duty of the clerk of the court from which any execution may be issued to indorse theréon the time when such execution was returned.”

It has been held by this court that this section is highly penal. Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, and the same case, 97 Ark. 149, 133 S. W. 590.

In Wilkerson v. Mobley, 152 Ark. 124, 237 S. W. 726, it was said: ‘ ‘ The statute in question is highly penal, and a party invoking it must bring himself within both the letter and spirit of it. Therefore he can do nothing which directly or indirectly contributed to the omission of the duty complained of and still hold the sheriff answerable under the statute.” Citing Bickham v. Kosminsky, 74 Ark. 413, 86 S. W. 292, 4 Ann. Cas. 978.

As was said by the Supreme Court of Alabama, in Governor v. Campbell, 17 Ala. 566:

“It is the duty of a sheriff to use due diligence in the execution of process, whether final or mesne. If he does this, he discharges his duty, and cannot be held liable, although he has failed to execute the writ. Thus, if a defendant in execution be not in the possession of any property, and the sheriff has no knowledge that he has any, nor by ordinary diligence can ascertain that he has, and none is pointed out or shown to him as the property of the defendant, if he returns the writ no property, under such circumstances he could not be liable, although it might afterwards appear that the defendant had property liable to .be sold under the writ. To hold the rule otherwise would be to hold the sheriff liable at all events, if the defendant had property, although the sheriff could not ascertain the fact or find the property.”

We think this is undoubtedly the correct rule to be. applied to sheriffs and other officers who receive process for execution. The undisputed facts in this case show that neither Boyd nor Phipps owned or had in their possession any of the real estate on which it is claimed the execution could have been levied at the time it was delivered to the sheriff. They had, more than two years prior thereto, sold and conveyed to appellee Mills, who had it in his possession, and, at the time the sheriff made the nulla bona return of the execution of July 7, neither of them were in possession of any property ont of which the sheriff might have collected the debt. Testimony on behalf of appellant tended to show that the sheriff was directed to levy on this land, although the witness who testified in this regard was not positive, direct and certain that he did so instruct the sheriff. On the other hand, the sheriff testified positively that he had no information that Boyd & Phipps had ever owned this land, or that they had conveyed it to Mills subsequent to the judgment against them. It was not the duty of the sheriff to run the records to ascertain what property, if any, the judgment debtors owned, or whether they had conveyed any property subsequent to the date of the judgment. At the date of the writing of the letter by the sheriff to the bank, hereinbefore mentioned, the execution had already been returned, and the sixty days within which the sheriff had to make a levy and return the execution had expired. About that time appellant had caused another person to examine the records, and at that time found out that Boyd & Phipps had owned this land and had conveyed it to Mills subsequent to the date of the judgment. It then became the duty of appellant to cause an alias execution to issue, with specific directions to the sheriff to levy on the land in the possession of Mills. The land being in the possession of another than the judgment creditor, the sheriff might reasonably have required the appellant to give an indemnifying bond to protect him in case of illegal levy. We are therefore of the opinion that the failure of appellant to collect its judgment was due primarily to its own negligence in failing to direct the sheriff to levy on the particular land, and to cause an alias execution to issue for such purpose.

As said by this court in Wilkerson v. Mobley, supra: “The reason is that, where the failure of the sheriff to make the return is caused by the plaintiff himself, he ought not to be permitted to obtain any advantage by it.” And that “he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute. ’ ’

We are therefore of the opinion that the decision of the chancellor is supported by the preponderance of the evidence; at least we cannot say that it is against the preponderance of the evidence. The decree is accordingly affirmed.


author: Hart, C. J.

text:
    Merchants' & Planters' Bank v. Hammock.
    Opinion delivered January 7, 1929.

      Joe S. Harris and Bridges & McGaughey, for appellant.

      J. G. Williamson, A&rimi Williamson, Lamar Williamson and John Baxter, for appellee.
   Hart, C. J.

(after stating the facts). The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bandy, Judge, 177 Ark. 694, 8 S. W. (2d) 448, and cases cited. It is well settled that, where the jurisdiction is disputable, the granting or refusal of the writ is discretionary. American Casualty Co. v. Lea, 56 Ark. 539, 20 S. W. 416; Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977; Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74; State v. Stevens, 159 Ark. 666, 252 S. W. 900.

In Rush v. Denhart, 138 Ky. 245, 127 S. W. 787, Ann. Cas. 1912A, 1199, the court said:

“If we should lay down the rule that .application by original proceedings might be made to us to stay the hand of the inferior jurisdictions, whenever, in the opinion of counsel, the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts, would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.”

If the making of the Bank of Commerce of McG-ehee a party to the original action brought by the McG-ehee Special 'School District against the Merchants’ & Planters ’ Bank and others was a fraud upon the jurisdiction of the court, then such chancery court would have the power •to determine this fact. It is well settled that if the existence or non-existence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition'will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightly determined, would have ousted the jurisdiction. The chancery court in the original action had jurisdiction of the- subject-matter, and it had jurisdiction to inquire into the fact whether the Bank of -Commerce of McG-ehee had been fraudulently made a party for the purpose of giving the Desha Chancery Court jurisdiction in the premises. In this controversy we must take the cause- of action as it was alleged by the school district in its original complaint; otherwise we would try the merits of the controversy for the purpose of determining whether or not we have power to try them. In other words, the contention now made by counsel for petitioners involved the whole merits of the plaintiffs’ original case against petitioners. If the allegations were true, it would defeat the plaintiffs’ complaint in the original case and should -have been pleaded in bar in that case and evidence given under the general issue to sustain the plea.

That this view was at first taken by counsel for the petitioners is shown by the record in the original case, which is exhibited with their petition. This record comprises over 60,0( pages of typewritten matter. Numerous depositions -were taken by both parties, and a decision had been actually rendered by the chancellor and announced to the parties. Nothing remained to be done except to enter the decree upon the records of the chancery court in accordance with the findings of the chancellor.

The response of the chancellor shows that all parties submitted to the jurisdiction of the court and agreed that he should taire the case under advisement and render his decision in vacation. All the parties prepared written briefs in the case, and after the chancellor had made an exhaustive study of the case and had prepared and announced his written findings of fact, the present petition for a writ of prohibition was filed in this court. It is not plain that there was an absence of jurisdiction in the chancery court, for the question depended upon the proof which should he made by them in the chancery court. If there was a joint liability on the part of the Merchants’ & Planters’ 'Bank and the Bank of Commerce of MeGrehee, the school district had a right to sue both of these parties and to establish its claim against the Bank of Commerce, notwithstanding its insolvency. It would have a right to do this in .order to- receive its pro rata share of the dividends from it as an insolvent bank under the winding-up proceedings by the State Bank Commissioner.

Since the circumstances and conditions surrounding the parties depend upon proof, we think the case is one in which to refuse the writ of prohibition would be a proper exercise of discretion. Therefore the petition for the writ of prohibition will be denied.


author: Smith, J.

text:
    Jonesboro Compress Company v. Hall.
    Opinion delivered January 7, 1929.

      Bloch & Kirsch, E. P. Mathes, Aline Murray and N. F. Lamb, for appellant.

      Frank Pace, Gordon Frierson and Caraway, Baker & Gautney, for appellee.
   Smith, J.

Separate complaints were -filed by W. A. Hall and fifty-five other persons against the Jonesboro Compress 'Company to- recover the value of certain cotton stored -by the plaintiffs in the warehouse of defendant, in the city of Jonesboro. These oases were consolidated and tried together. A stipulation covered the value of the cotton, and that question was not -submitted to the jury. There was a verdict in favor of all the plaintiffs, and judgment accordingly, from which is this appeal.

The cotton was destroyed by a fire which was -discovered about no.on December 8,1927, and the complaints filed by the owners of the cotton alleged numerous acts of negligence as the cause of the fire. After much testimony had been -offered to -sustain the various allegations of negligence, the court held that the -only ground of alleged negligence upon which there was enough testimony to go to the jury was that of the failure by the compress company to keep a watchman on the premises during the noon hour, and the jury was told to find for the defendant if this ground of negligence was not established by the testimony.

At the time of the fire, cotton of the value of $500,000 was stored in the compress. The- -service rendered by the compress company was that of compressing the cotton and storing it, subject to sale. The compress was divided into four sections, in each of which cotton was stored, and the cotton here in question was stored in section A, there being, at the time of the fire, 2,980' bales of cotton in this section; however, only 319 bales of the cotton is involved in this litigation. Although all the cotton stored in section A was destroyed, the fire department, while unable to extinguish the fire, was able to confine the fire to the section in which it originated.

The testimony on the part of the plaintiffs was to the effect that the switch tracks of the Cotton Belt Railroad ran on one side of the compress and those of the Frisco Railroad on the other, and that switch engines ran all day. Particles of loose cotton were lying on the floor of the section of the compress where the fire originated, and the day was dry and windy, and at least one door was left open, this being a door 16 feet wide. Adjacent to this section A was the engine room, where a coal fire was burning under the boilers, but there was no opening from the boiler room to the compress.

The testimony is conflicting as to where the fire originated, that on the part of the plaintiffs being to the effect that the fire was first discovered on the floor of the compress, along which it ran until some bales of cotton were reached and ignited. The testimony on the part of the defendant compress company was to the effect that the fire was first discovered on top of a bale of cotton, and from there it was soon communicated to other bales, and that the fire spread with such rapidity as to amount almost to an explosion.

Testimony was offered by the defendant to the effect that it was not customary to employ watchmen about compresses, except at night and on Sundays and holidays, when the compress was not in operation; that at all times when the compress was in operation no special watchmen were employed, as every employee was a watchman. Negro laborers had been at work in section A until the noon hour, but none of them were present in this section when the fire was discovered. They were in a small office inside of section A, eating their lunch, when the fire started.

It is earnestly insisted that no case was made for the .jury, and that a verdict should have been directed in defendant’s favor. It is insisted that'there was no testimony as to any negligence on the part of the defendant, except the failure to keep a watchman on duty, and that the undisputed testimony shows that it is not customary to employ watchmen at compresses during the noon hour on days when they are being operated. As presenting this theory of the case, defendant requested instruction numbered 10, reading as follows: “* * * If you find from a preponderance of the evidence that, throughout the States in which compresses are operated, it is not the practice or custom to have such watchmen during the noon hour or on days when the plant is being run, then the defendant was not guilty of negligence in not having a watchman during the noon hour on the day of the fire.”

The defendant offered the testimony of several witnesses to the effect that it was not customary to keep watchmen at compresses during the noon hour when they were being operated. Such testimony is admitted, not for the purpose of permitting persons engaged in the kind of business out of which the damage arose to artificially, and without the supervision of the courts, determine what does or does not constitute negligence, but is admitted as bearing upon the degree of care which an ordinarily prudent person would use under the circumstances of a particular case. If one whose conduct was called into account as having caused an injury was shown not to have used the care which an ordinarily prudent person would and should have used under the existing circumstances, then he is negligent, although it may be shown that others were equally as negligent.

In the case of Elmer v. Mutual S. S. Co., 114 Minn. 257, 130 N. W. 1104, evidence was offered as to the custom of keeping hatches closed in the Duluth Harbor at night, and, in holding the testimony competent, the Supreme Court of Minnesota said:

“This evidence was admitted over defendant’s objection that the custom was not pleaded, and its admission is assigned as error. We think the objection was not well taken. Evidence of custom in negligence cases is admitted, not on the theory that a breach of custom is negligence per se, or observance of custom necessarily conclusive that there was no negligence. It is admitted as evidence of negligence, or of due care, as the case may be, and it is no more necessary to plead it than any other purely evidentiary facts.”

To render the testimony as to a custom admissible as tending to show the care that an ordinarily prudent person would use, there should be a preliminary showing of substantially identical conditions. As a practical matter, the value of such testimony would depend upon the identity of conditions. However, as we háve said, these axe jury questions, unless the testimony is such that only one conclusion may be reasonably or fairly deduced from the circumstances of the particular case.

The court charged the jury that: “If you find from the evidence that defendant took such care of plaintiff’s cotton as an ordinarily prudent person would have taken for the purpose of guarding it against fire, then your verdict will be for the defendant.”

After a careful consideration of the testimony, we are unwilling to say, as a matter of law, that the failure of the defendant to keep a watchman at the "compress during the noon hour was not negligence, although this was not the custom of other compresses. The jury may have concluded that the fire hazard required the presence of a watchman at the Jonesboro compress. In addition to the testimony stated, it was shown by the undisputed testimony that, excepting only the explosives, cotton is one of the most inflammable substances, and that a fire in cotton spreads with great rapidity. The testimony also shows that, during the noon hour, at least two persons unloaded cotton into section A of the compress, and that no employee of the compress was present at the time. The compress was open to any one who wished to enter, and there were doors on both the north and south sides of the building. No employee of defendant was in charge of the compress at the noon hour.

There was some conflict in the testimony as to the length of time which elapsed after the discovery of the fire before it got out of control, and appellant insists that the absence of a watchman was not the proximate cause of the damage, for the reason that the fire could not have been extinguished had a watchman been present, and it is insisted that it is mere surmise and conjecture for the jury to have found otherwise. We do not think so. The care employed should have been commensurate to the attending danger. A watchman employed for the purpose would have known the portions of the compress which were open and exposed to danger, and might have directed his attention to the sections where there was reason to apprehend danger, and he might have discovered the presence of the fire earlier than those who did discover it, and who- were under no duty to look for fires. He might have also employed the agencies at hand to extinguish the fire in its ineipiency with which others were not familiar, and he might also have given the fire alarm sooner than was done. The persons who discovered the fire attempted to call the fire department over the telephone, but the office of the compress company, where the telephone was located, was locked, and they were unable to enter and use the company telephone until the door of the principal office had been forced open.

Under these 'circumstances we do not think it must be said, as a matter of.law, that the failure to keep a watchman was not the proximate cause of the fire loss.

The compress company was not an insurer of the cotton. On the contrary, the receipts given for cotton delivered at the compress recited that: “Said cotton is not insured by the undersigned warehouseman against loss or damage by fire or lightning.” The liability of the compress company was that of a warehouseman, and it was liable for the loss of the cotton by fire in the event only that its negligence was the proximate cause thereof. Section 10365, C. & M. Digest; Gulf Compress Co. v. Harrington, 90 Ark. 260, 119 S. W. 249, 23 L. R. A. (N. S.), 1205.

The court refused to give, at appellant’s request, an instruction numbered 12, reading as follows: “If you find from the evidence that the origin of the fire is unknown, then in that event it will be impossible for you to trace the fire to any act of negligence on the part of the defendant, and your verdict will be for the defendant. ’ ’

It is pointed out that the giving of an instruction substantially to the same effect was approved by this court in the case of Clark v. St. Louis, I. M. & So. Ry. Co., 132 Ark. 257, 201 S. W. 111. That was a case in which a railroad company was charged with kindling a fire on its right-of-way, which spread and consumed the plaintiff’s property, or, if not so caused, that the fire was kindled from sparks from one of defendant’s trains. There was a question of fact in that case whether the fire had originated in either of the ways alleged. The question there was that of liability for kindling or starting the fire. That is not the negligence upon which the plaintiff’s cause of action is predicated in the instant case. The negligence here complained of is the failure to have a watchman to discover the presence of the fire, however caused, and that, regardless of the origin of the fire, its occurrence and the danger of spreading should reasonably have been anticipated and provided against by the presence of a watchman. There was therefore no error in refusing instruction numbered 12.

Appellant company cites and relies upon the case of Oktibbeha County Cotton Warehouse Co. v. Page & Co., 117 So. 834, in which the Supreme Court of Mississippi held as a matter of law that the failure of the compress company to maintain a night watchman was not negligence. We think, however, that the instant case is distinguished from that case on the facts, in that there were fire hazards in the instant case which were not present in the Mississippi case, which made the question one of fact whether a watchman should have been employed. The case of Gulf Compress Co. v. Harrington, supra, is more nearly in point.

The real and difficult question in the case is whether the testimony is legally sufficient to support the verdict, and, as we have concluded that it is, the judgment must be affirmed, and it is so ordered.


text:
    Harrison v. Bank of Fordyce.
    Opinion delivered January 7, 1929.

      Scipio A. Jones, for appellant.

      T. D. Wynne and Charles A. Miller, for appellee.
   Smith, J.

Appellee, Bank of Fordyce, filed a complaint against appellants as trustees for the Grand Lodge of Masons- (col.) in this State and the worshipful master and secretary -of the grand lodge, in which it alleged that it had brought a suit to foreclose a mortgage given it by S. J. Anderson on a lot in Fordyce, Dallas County; that it obtained a decree of foreclosure, pursuant to which the mortgaged property was sold to it as the purchaser, and the commissioner’s deed was duly approved by the court. Thereafter the plaintiff bank discovered that Anderson had executed to the defendants, as trustees for the Sovereign Lodge of Masons, jurisdiction of Arkansas, a second mortgage on the same property, of which fact the bank was not advised when its suit was brought and the decree thereon taken. There was a prayer that the grand lodge be 'required to redeem from the foreclosure sale within a reasonable time, to be fixed by the court, or that, failing so to do, its right to redeem be foreclosed and barred.

Service of summons was had on the persons named as defendants. On February 23, 1928, a motion to quash the service of summons was filed on behalf of the grand lodge for the reason that it had not been served with process as required by § 6091, <C. & M. Digest, which" section provides that organizations similar to the Masonic Grand Lodge should appoint in writing the ¡Commissioner of Insurance as its lawful attorney upon whom all legal process should be served, and there had been no service on the Insurance Commissioner. In this motion it was recited that the grand lodge appeared for the sole purpose of making this motion, and no other.

Before this motion had been passed upon by the court, the grand lodge filed another “motion to quash summons” on May 7, 1928, in which there was no recital that the appearance was special. In this motion the allegations of the former motion were repeated to the effect' that the service should have been had on the Insurance Commissioner but was not.

In this second motion to quash it was further alleged that the principal place of business of the grand lodge was not in Dallas County, where the mortgaged property was located and the suit was pending, but was in Jefferson County, and it was alleged that under § 1176, C. & M. Digest, its suit should have been'brought in Jefferson, and not in Dallas, County. Section 1.176 reads as follows: Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” It was alleged that none of the defendants were summoned in Dallas County.

' The court overruled this last motion on the day it was filed, and entered a decree giving the grand lodge twenty days in which to redeem from sale, and this appeal is from that decree.

We think there was no error in the decree. It is true that one not properly summoned may appear specially for the purpose' of questioning the jurisdiction of the court over his person, and when he limits his appearance to this purpose the court does not acquire jurisdiction over his person. In the case of Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 416, 95 S. W. 776, one of the questions presented was whether the defendant had entered its .appearance. It was there said:

‘ ‘ This question is ruled by Union Guaranty & Trust Co. v. Craddock, 59 Ark. 593, 28 S. W. 424, where we held that Wilder the code of practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment.’ There is no doubt but that, where a party who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person, and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest, he cannot be said to have waived his objection to the jurisdiction of his person.”

Here the defendant, in its second motion, filed a plea in the nature of a plea in abatement, but contained in this motion is a plea in the nature of a demurrer. It was therein recited, and is here insisted, that this suit should have been brought in Jefferson County for the reason that the city of Pine Bluff, in that county, is the situs of the grand lodge, and none of its trustees were summoned in Dallas County, where the suit was brought. This plea is an appearance for the reason that, if sustained, the service of the summons would not only be quashed but the cause of action would be dismissed.

' In 4 C. J., page 1333, chapter “ Appearances, ” § 27, it is said: “Broadly stated, any action on the part of a defendant, except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance. * * * A general appearance is also made * * * by arguing a dismissal of a cause in addition to a motion to quash the summons.” Cases are cited in the note to the text quoted which support it.

The motion to dismiss the cause of action was properly overruled, as § Í176, C. & M. Digest, quoted above, does not apply here. The applicable statute determining the venue of this action is § 1164, C. & M. Digest, which reads as follows: “Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated: * * * Third. For the sale of real property under a mortgage, lien or other incumbrance or charge.”

This is a suit to foreclose a mortgage on a town lot situated in Dallas 'County, and the suit was therefore properly brought in that county.

It is also insisted for the reversal of the decree appealed from, that a resale of the property should have been ordered, for the reason that at a sale foreclosing both the liens the land might have brought a larger sum than that for which it did sell and a sum in excess, of the debt secured by the first mortgage, in which event appellant, as second mortgagee, would be entitled to this excess.

This question was considered in the case of Dickinson v. Duckworth, 74 Ark. 138, 85 S. W. 82, 4 Ann. Cas. 846, and there decided adversely to the contention of appellant. In that case, as in this, a first mortgage was foreclosed without making the second mortgagee a party. It was there said:

“It must be conceded that appellants were necessary parties to the foreclosure suit under which appellee Duckworth obtained title, and their rights in the property were not cut off by the sale. Having been omitted from the foreclosure proceedings, what remedy therefore remained to them in the assertion of their rights? A right merely to redeem from the lien which had been foreclosed upon the payment of the debt, or the right to require a foreclosure order and a sale thereunder? While there is some conflict in the authorities, we think that, by the decided weight of authority it is settled that a subsequent lienor, or holder of the equity of redemption, after foreclosure against the original mortgagor, can only claim the right to redeem where he has been omitted from the foreclosure suit.”

We conclude therefore that there is no error in the' decree appealed from, and it is affirmed.