author: Humphreys, J.

text:
    Blanks v. American Southern Trust Company.
    Opinion delivered July 2, 1928.

      Compere & Compere and Coleman & Riddick, for appellant.

      B-mbee, Pugh & Harrison, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant in the circuit court of Pulaski County, Second Division, upon a renewal note executed by him and others to recover $83,313.70. Appellant filed an answer, admitting the execution of the note, but denying liability thereon for the alleged reasons:

(1) That it was. executed pursuant to a transaction prohibited by § 8, article 12, of the Constitution of the State, §■§ 750 to 771, inclusive, of Crawford & Moses’ Digest, and §§ 1703, 1727, of Crawford & Moses’ Digest; also § 13 of article 19 o,f the Constitution of the State of Arkansas, and §§ 7354 and 7355 of Crawford & Moses’ Digest; (2) that the note was. a renewal note of one given in the first instance by appellant upon appellee’s promise that he would not be required to pay it; (3) that the note was an accommodation note, and without consideration; (4) that appellee .released some of his co-obligors without his knowledge and consent, which had the effect of releasing him.; and (5) a payment of the note in full.

By consent the cause was tried by the court sitting as a jury. A verdict was returned for appellee and a consequent judgment rendered in its favor for the face of the note and accumulated interest, from which is. this appeal.

On February 16, 1920, the Doyle-Kidd Dry Goods Company, a corporation engaged in the wholesale dry goods business, entered into a written contract with the American Bank of Commerce & Trust Company, a banking institution organized under the laws of Arkansas, to sell said bank $250,000 of its 7 per cent, preferred stock of the par value of $250,000 for $230,000, with the understanding that, at the expiration of three years after the delivery of the stock, the dry goods company would either buy or find a purchaser at $92 per share for any of the stock the bank should be unable to sell to third parties at par. The faithful performance of the contract on the part of said.dry goods company was personally guaranteed by T. N. Doyle, as trustee for the T. N. Doyle estate, B. P. Kidd, and appellant, all of whom were large stockholders, directors and officers in said dry goods company. T. N. Doyle and appellant were stockholders and directors, at the time of the execution of the contract, in the American Bank of Commerce & Trust Company. The contract for the sale and repurchase of the stock and the personal guaranty of appellant and his associates that the dry goods compainy would carry out its contract was negotiated by the vice president of the bank, Ed Cornish, and the president of the Doyle-Kidd Dry Goods Company, T. N. Doyle, but the contract was signed for the company by appellant. Pursuant to the agreement, on the 28th day of February, 1920, preferred stock in the amount of $250,000 par value was issued by the Doyle-Kidd Dry Goods Company to Ed Cornish, trustee for the American Bank of Commerce & Trust Company, which was delivered to the bank on the faith of the agreement and guaranty aforesaid, and the bank paid the dry goods company the sum of $230,-000 in cash. Neither the dry goods company nor the bank complied with the requirements of the Blue Sky Law contained in §§ 750 to 771, inclusive, of Crawford & Moses’ Digest, nor received any certificate of authority to sell the preferred stock of the dry goods company prior to the sales thereof by the dry goods company to the bank and by the bank to third parties. The dry goods company sold the stock below par to the bank, contrary to § 8, article 12, of the Constitution of the State, which is as follows:

“No private corporation shall issue stocks or bonds except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void; nor shall the stock or bonded indebtedness of any private corporation be increased, except in pursuance of general laws, nor until the consent of the persons holding the larger amount in value of stock shall be obtained at a meeting held after notice given for a period not less than sixty days, in pursuance of law.”

The dry goods company and its guarantors agreed to repurchase the unsold stock, at the expiration of three years, below par, and the guarantors did so contrary to % 1703 of Crawford & Moses’ Digest, which prohibited the repurchase of same below par. The bank succeeded in selling only $82,550 of the stock to third parties at par within the three-year period. In the meantime the Doyle-Kidd Dry Goods Company changed its name to the Doyle Dry Goods Company. The guarantors were notified in January, 1923, that the bank was being criticized for carrying the stock in the manner it was, and that they must redeem the balance of the stock under the guaranty contract for $92 a share.

A short time before the expiration of the three-year period, the Doyle Dry Goods Company paid the bank $45,000 on the repurchase of the stock, and appellant and his co-obligors executed to the bank their note for $113,825.10, due in six months, in redemption of the stock, and retired 552 shares of the stock, and pledged 1,1223/2 shares thereof as collateral security for the payment of the note. The amount due at the time for the redemption of the stock was $109,054, but 6 per cent, advance interest was figured and included in the note, totaling $113,825.10. The amount of the note was arrived at by deducting 8 per cent, from the amount of the unsold stock, amounting to $167,450, then deducting- from that amount $82,500 for the stock sold by the bank and $45,000 paid by it, and adding to the remainder six months’ interest. When the note was signed by appellant and his associates, the 'Doyle Dry Goods Company was released from its original contract with the bank to redeem or find a purchaser for the stock.

After the execution of the note, the American Bank of Commerce & Trust Company consolidated with the Southern Trust Company, and the consolidated institu-tiou took the name o,f the American Southern Trust Company, and became the owner of the note of appellant and those who signed it with him at the time of said consolidation. The renewal notes were subsequently executed by appellant and his associates to appellee. The indebtedness was reduced from time to time from sales of stock which was attached as collateral, until the last renewal note upon which this suit was brought, and which was executed on the 23rd day of January, 1926, for $82,318.07. Appellant continued as director of the American Bank of Commerce & Trust Company until its consolidation with the Southern Trust Company, and then became director of the appellee, and continued in that capacity until January, 1927. He also continued as director and active vice president of the Doyle Dry G-oods . Company until January, 1927.

The note.sued upon was dated January 23,1926, due six months after date, bearing interest at the rate of 8% per cent, per annum, and was signed by W. B. Smith, H. W. Doyle, it. A. Doyle, and the appellant, J. P. Blanks. T. N. Doyle had signed the original and some of the notes executed pursuant to the guaranty contract, and did not sign the note sued upon, as he was dead at the time. The notes, when taken up by renewal notes, were turned over to appellant, except, perhaps, the last renewal note signed by T. N. Doyle, which was retained by the bank. W. B. Smith died after the execution of the note sued upon, and the representative of his estate was not made a party defendant on account of an agreement .or an arrangement similar to the one made between the bank and the Doyles, who were not made parties defendant in the action. The 'bank entered into an agreement with A. H. Treeman of Ithaca, New York, not to sue the Doyles upon the renewal note and another note upon payment to it and the Union Trust Company of $17,136.28 to be applied on the renewal note and other notes, reserving the right to proceed in any manner against appellant, James P. Blanks, and, in the event suit should be brought against the Doyles by appellant for contribution, the said bank would immediately return the money so paid to the Doyles. It does not appear how much of the amount paid by A. H. Treeman was applied as a credit on the renewal note.

Appellant offered to testify that, at the time he signed the original note executed pursuant to the guaranty contract, he signed it under agreement with Ed Cornish, vice president of the American Bank of Commerce & Trust Company, that he would not be required to pay it. This testimony was excluded and not considered by the trial court, over the objection and exception of appellant.

During the three-year period in which the bank agreed to sell the stock to third parties at par, it tentatively or- conditionally sold El Dorado parties $64,000 of the stock. According to the testimony of W. A. Hicks, the stock was turned over to customers as-a temporary investment until the bank could acquire other securities which its customers wanted. The bank treated the sale as an absolute one in making up its report to the State officials. The stock had been returned to it and was in possession of the bank at the time it called upon appellant and his associates to redeem the stock under the guaranty contract.

We deem it unnecessary to set out the substance of the testimony at greater length in order to determine the questions involved on this appeal.

The main contention of appellant for a reversal of the judgment is that the note sued upon was without consideration and void, because executed pursuant to a contract made in violation of the Constitution and statutes of the State. Although there is nothing in the record tending to show any intentional violation o.f the Constitution or Blue Sky Law in the transaction by either the Doyle-Kidd Dry Goods Company or the bank, yet the fact remains that the stock was sold below par in violation of the Constitution, and without obtaining authority from the Banking Department to sell same, contrary to the statutes of the 'State.

The general rule is that courts will not enforce contracts made in violation of the law, but will leave the parties to such contracts where it finds them, if they were in pari delicto. The penalties, however, incident to a violation of the Blue Sky Law are visited upon the seller of stock unless the buyer is in pari delicto with the seller. If the buyer is not in pari delicto with the seller, the general rule is that the buyer may, within a reasonable time, recover his money by tendering back the stock received by him. The rule against the enforcement of such contracts does not apply to directors and officers of business corporations who have obtained funds for the benefit of such corporations upon illegal agreements from 'banking institutions in which they are also directors. If the rule were applicable in such cases, it would open an avenue by which directors and officers could borrow the funds upon illegal contracts for themselves or corporations in which they are interested, and, after the funds have been spent, or perhaps lost in business transactions, defend, in case suit is brought against them or their corporations, upon the ground that the transaction is illegal. It was the duty of appellant to expend the bank’s money in legitimate transactions, and he cannot be heard to say that he is not responsible because he expended the bank’s money in purchase of stock contrary to law. Appellant cannot escape because he did not personally participate in the transaction on the part of the bank. He knew his company was getting the bank’s money of which he was a director, for preferred stock which his company had no right to sell below par, and without obtaining authority to do so from the proper State official.

Appellant interposed, among other defenses to the note, a plea of usury. He was not dealing at arm’s length with the bank, but in effect was dealing with himself in a dual fiduciary capacity. If the transaction was usurious, he should not have countenanced it in order to aid his company in selling a large block of its preferred stock to the bank of which he was a director. He is estopped from setting up illegality of the contract in which he participated, as a defense to the suit upon the renewal note.

Appellant next contends for a reversal of the judgment upon the alleged ground that the original note was given without consideration, and that the renewal note upon which suit was brought is also void for that reason. It was a part of the original agreement in which appellant’s company received $230,000 that he and his associates would guarantee the performance of the contract on the part of his company by redeeming the stock the bank was unalble to sell during the three-year period at $92 a share. Instead of redeeming under the contract for cash, appellant and his associates elected to give a note to the bank in redemption or repurchase of the stock. At the time the original note was executed, the contract with the dry goods company was satisfied in full. Satisfaction of the contract with the dry goods company, which had been guaranteed by appellant and his associates, was a valid consideration for the original and all the renewal notes executed by appellant and his associates.

Appellant next contends for a reversal of the judgment because the court excluded his testimony to the effect that he agreed to sign the note under the promise that he would not be called upon to pay same. His evidence was in contradiction of the note which he signed, and tended to vary its terms. The court properly excluded the testimony. Even if the evidence were admissible, he could not interpose it as a defense to the suit upon the note, because it was his duty as a director not to entertain such a promise and act upon it to the detriment of his bank.

Appellant next contends for a reversal of the judgment on account of the contract made between the bank and A. H. Treeman not to sue the Doyles, and on account of a similar agreement made between the bank and the representative of W. B. Smith’s estate not to sue the estate. We set out the substance oif the agreement with Treeman, and it does not amount to a release of the Doyles. The agreement provided specifically that if J. P. Blanks should sue for contribution, the bank would immediately return the money paid to it by A. H. Tree-man, and expressly reserved the right in the agreement to proceed against appellant. If appellant at any time pays more than his pro rata share of the note, he will have the right, notwithstanding the agreement between the bank and A. H. Treeman, to proceed against the other makers of the note for contribution. He is not in any way injured by payment of a part of the note by A. H. Treeman.

Appellant next contends that he has paid the note if he had been given proper credits. He bases his claim of payment in full upon the failure of the bank to account for $64,000 of stock which it delivered to parties in El Dorado. The finding of the court that the delivery of the stock was conditional and not an absolute sale of the stock is sustained by the weight of the evidence. According to the testimony of W. A. Hicks, the delivery of the stock to the El Dorado parties was a temporary arrangement to take care of its customers, until it could find or obtain securities which its customers wanted. It is true that, after the delivery of the stock, the bank treated it as a sale in its report to the State official, but this act is not conclusive that the delivery ofi the stock constituted a bona fide sale thereof. No transfer of the stock was ever made on the books to the El Dorado customers, and, as soon as the bank found securities, which its customers wanted, the stock was returned to the bank, and the bank had it in possession as its. own property at the time it called upon appellant and his associates to redeem the stock under the guaranty contract. The other claim of payment of appellant was based upon interest in excess of 10 per cent, alleged to have been paid by the Doyle-Kidd Dry Goods. Company and the Doyle Dry Goods Company to the bank. If, as a matter of fact, interest in excess of 10 per cent, was paid in carrying out .the transaction, it cannot be credited- as a payment on a renewal note, as appellant had no right to interpose the plea of usury as a defense.

No error appearing, the judgment is affirmed.

Hart, O. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Goodrich v. Mitchell.
    Opinion delivered July 2, 1928.

      Strait & Strait, for appellant.

      Sellers <& Eddy and E. A. Williams, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Conway County by appellant against appel-lee to quiet and confirm the title and possession in her against appellee to that part of the west half of the southwest quarter of section 14, township 6 north, range 18 west, in said county, lying north and east of Mountain Bluffs, consisting of about six acres of bottom land in a V shape, adjoining and immediately within the north 'boundary line of said tract.

Appellee filed an answer, denying appellant’s title and right of possession to said six-acre tract of land, and alleging title and the right of possession thereto in himself through open, continuous, notorious and adverse possession of himself and his grantor for more than seven years, claiming to be the owner thereof.

The cause was submitted, to the court upon the pleadings and depositions of witnesses, resulting in a finding that appellee acquired title to said six-acre tract of land by adverse possession thereof for more than seven years, and a consequent decree dismissing appellant’s complaint for the want of equity, from which is this appeal.

The undisputed testimony showed that the six-acre tract in question is that portion of the west half of the southwest quarter of said section, township and range situated north and east of Mountain Bluffs and lying in a V shape on the north part of said tract, and which 80-acre tract of land, including the six-acre tract in dispute, was inherited by appellant and her brothers and sisters on November 15, 1889, and that appellant purchased the interest of her brothers and sisters therein on November 28, 1919. It also appears from the undisputed evidence that the lands immediately north of the Ellen C. Goodrich 80-acre tract were owned and had been owned for a number of years by H. James, who sold it to appellant in the year 1916. At the time of the purchase of the James tract by appellee, the south portion thereof was inclosed by fences on the east, west and north sides, and by the bluff, with wire fences across the ravines and gulches intersecting same on the south side. In other words, the bluff with the wire across the ravines and gulches served as the south side of the inclosure to keep the stock out. When appellee acquired the James tract, the bluff which served as a fence on the south side was pointed out to him as the south line of the James land. A part of the inclosed land was in cultivation at the time of the purchase, and a part of it was cleared in 1924, plowed in 1925, and put in cultivation in 1926. Appellee remained in the open, notorious, continuous and adverse possession of all the land north of Mountain Bluffs, which was pointed out to him as the south line of the lands he purchased from H. James, claiming title to the bluff under his purchase from James.

On June 6, 1922, appellee wrote the following letter to appellant:

“Miss Ellen C. Goodrich,

“Elm Terrace,

“Rocky Hill, Conn.

“Dear Madam: I am a neighbor of yours, owning the most of 14-6-18, of which the Goodrich heirs own the west half of the southwest quarter. Besides this, I own what is known as the Pawpaw Bend, lying in section 13, and 24-6-18, and 18 and 19-6-17. The Goodrich heirs also own the south half of 15-6-18, which lies on the side of the mountain, then I join you again on the west, having recently bought fractional 16 and 17-6-18. I am inclosing herewith a map showing the Goodrich land by cross, lying between my lands in section 14 and 16. I am also inclosing a picture of a part of my farm in section 13 and some of my stock.

“Wife and I start next week for our Winchester Club’s convention, which meets at New Haven, Conn., from June 26 to 29. We will stop at the Taft Hotel. I do not know how far you live from New Haven, but I would like to meet you or some one representing you while I am up in Connecticut this time. Mr. Drew, vice president of the Winchester Repeating Arms Company, can tell you who I am. If you should ever care to offer your interest in your land in sections 14 and 15.at a price I can afford to pay, I would like to consider buying it.

“I trust you will pardon this abrupt letter, but I thought if we knew each other I might be of some service to you some time, whether we make any land deal or not.

“Yours very truly,

(Signed) “E. E. Mitchell.”

In 1924 and again just before the institution of this suit, E. A. Woolverton surveyed the Goodrich 80-acre tract, locating the northeast and the northwest corner's thereof. The north line of the north 40 ran through the field or cultivated lands of appellee, taking about six acres, of the inclosed land or field. The record does not reflect the exact time James purchased the land he sold to appellee north of the Goodrich 80-acre tract, hut it does reflect that he used the bluff with the wire across the ravine and gulches as his south inelosure, and rented the inclosed land several years before selling same to appellee.

The only questions arising on the appeal, upon trial de novo, are the sufficiency of the bluff as an inclosure on the south side, and, if so, whether the letter written by appellee to appellant broke the continuity of his possession so as to destroy his claim of ownership under the seven-year statute of limitation.

Appellant contends that the trial court’s finding upon both questions is contrary to the weight and preponderance of the evidence.

The bluff with the wire across the ravines and gulches was used as a south fence or inclosure of the field, and served to keep stock out of the crops raised therein. We think it was a sufficient inclosure upon which to base a claim of the lands by adverse possession.

Appellant interprets the testimony of appellee to mean that he only intended to claim such land as was embraced in his deed from James, or to the true lines according to the government caffs in said deed, whenever they might be located by correct survey. We do not so interpret his testimony. He testified that, when he bought from James, his south line was pointed out as the bluff line, and that he thereafter occupied and intended and actually claimed title to all land up to the bluff.

Appellant argues, however, that appellee’s letter to her offering to buy her 80-acre tract indicated very clearly that he was claiming no lands adversely beyond the true boundary lines of his own land. The letter was written in 1922, and would have indicated that he was claiming no part of appellant’s land, had he known that a part of the 80-acre tract was inclosed in his field. There is nothing in the letter to indicate that he was cognizant of that fact when he wrote the letter. He referred in the letter to government calls or description to the adjoining lands owned by each of them, and said nothing whatever concerning the location of the division line between them. There is nothing in the letter inconsistent with his open, adverse, continuous possession and claim of title to all the land north of the bluff.

The decree is affirmed.


text:
    Light v. Federal Land Bank of St. Louis.
    Opinion delivered July 2, 1928.

      W. H. Bengel, for appellant.

      J. R. Crocker, for appellee.
   Humphreys, J.

On August 11, 1927, appellant purchased the northeast quarter of the northwest quarter o.f section 26, township 12 north, range 3 east, in Poinsett County, Arkansas, from F. B. Pipkin, subject to a mortgage Pipkin executed to appellee thereon, November 1, 1921, to secure the sum of $100, evidenced by a note bearing interest at the rate of 6 per cent, per annum, due and payable in equal semi-annual installments as follows : Fourteen dollars due and payable on the 1st day of May and November of each year from May 1,1922, to May 1, 1954, inclusive, and one installment of $11.69, the last to mature, being due and payable on November 1, 1954, at which, time all of the installments would have fully matured. It was declared in the mortgage that,, upon the failure of the mortgagors, to pay the indebted-nóss or any interest or installment or partial payment thereof when same should become due, or any taxes, liens, judgments or assessments against said laud, the whole indebtedness might be declared due at the option of the mortgagee. On May 1, 1927, prior to the sale of the property to appellant, Pipkin breached the contract by failing to pay the installment of $14 due May 1, 1927, and by failing to pay the Drainage District No. 8 taxes for the years 1924, 1925 and 1926, and the State and county taxes, for the years 1924, 1925 and 1926, whereupon appellee brought this suit to' foreclose for the installment due and the unpaid taxes, subject to the remaining indebtedness of $360.38. A copy of the note was attached to the complaint and marked Exhibit A. The mortgage was attached to the complaint and marked Exhibit B. A separate demurrer of O. L. Light was filed to the complaint. The gist thereof is contained in the second and third paragraphs as follows:

“2. That the indebtedness referred to in the petition as Exhibit A (the note) is but one obligation payable in semi-annual installments, and that appellee does not have the right to foreclose upon any of said installments without declaring the entire indebtedness due.

“3. That appellee cannot, as it is seeking to do, foreclose the lien created and existing Under Exhibit B (;the mortgage), as to the payment on said note (Exhibit A) which is due, and yet have the lien declared to continue and exist as to the remainder of said note; that said note is but a single obligation, and is not severable for the purpose of foreclosure; that the extinguishment of the lien 'by foreclosure of the payment due, if permissible, would be an extinguishment of the entire lien.”

F. B. Pipkin and his surety, the Harrisburg National Farm Loan Association, were made parties defendant in the action. Pipkin made default, and the Harrisburg National Farm Loan Association consented to a decree in accordance with the prayer of the complaint.

The canse was submitted to the court upon the complaint, the note and mortgage, which were introduced in evidence, and the demurrer to the complaint, resulting in a judgment against F. B. Pipkin and his surety for the due installment of $14 with interest thereon at 8 per cent, per annum from May 1, 1927; and a decree of foreclosure against the land, together with the amount due for taxes, and an order of sale to satisfy same, subject to a continuing lien on said land in favor of appellee to secure payment of the remaining mortgage indebtedness, from which is this appeal.

Appellant contends for a reversal of the decree because the trial court ruled that it was not necessary to declare the entire indebtedness due in the accelerating clause in order to foreclose for the amount due; and that the extinguishment of the lien by foreclosure of the installment due would not extinguish the lien for the undue installments, or the balance of the indebtedness.

Appellant’s contention for a reversal of the decree is refuted by the rule announced in the cases of Land v. May, 73 Ark. 415, 84 S. W. 489, and Fox v. Pinson, 172 Ark. 449, 289 S. W. 329. In the Land case this court said that the mortgagee “was entitled to have foreclosure for such as were due, in dealing with a number of notes which were executed by the mortgagor, some of which were due and some not.” In the Fox case this court said: “The mortgagee can foreclose upon installments only which have matured, subject to the continuation of the lien upon the property to secure the unma-tured installments.” In each of these cases the installments were evidenced by separate notes, and there was no accelerating clause either in the notes or mortgages. We do not think that the instant case can be distinguished from the cases cited on that account. In sound logic there is no difference in a single note payable in installments and an indebtedness represented by-several installment notes. • The accelerating clause in the mortgage in the instant case was inserted for the benefit of the mortgagee, and, under its provisions, was entirely optional on its part. There is nothing in the clause or mortgage requiring the mortgagee to declare the entire indebtedness due upon the failure to pay an installment when same should become due. We think that, notwithstanding the fact that the indebtedness in the instant case is represented by a single note, payable in installments, instead of a series of notes, and that an acceleration clause is contained in the mortgage, the principle of law announced in the Land and Fox cases, supra, is applicable, and controls the instant case. Of course, if the appellee should purchase the land at the foreclosure sale, then the lien would be extinguished in its entirety, since the title of the property would then be in appellee, otherwise not.

No error appearing, the decree is affirmed.

Kirby, J., dissents.


author: Kirby, J.,

text:
    New England Securities Company v. West Helena Consolidated Company.
    Opinion delivered July 2, 1928.

      Bowersock, Fi&gell & Rhodes, Roy D. Campbell and Moore, Walker & Moore, for appellant.

      W. R. Satterfield and J. G. Burke, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted, first, that the court erred in sustaining the demurrer to the complaints, and also in holding that the deeds of trust could not be reformed to show the -correct description of the lands intended to be conveyed as against appellee Afflick, who claims to be an innocent purchaser, and both of these .contentions are correct.

The descriptions appearing in the deeds of trust were not so indefinite as to be void, as shown from the exhibits themselves and the allegations olf the complaints, and, so far as the description of the -Spanish Grant is concerned, although the number of the grant was incorrect, it could be located by being north of the Little Rock road and other landmarks and the only land within any Spanish Grant belonging to the mortgagor company. In Snyder v. Bridewell, 167 Ark. 8, 267 S. W. 561, the court said :

“The general rule as to the sufficiency of a description to pass title to land under -deed or mortgage in this State is that it shall be described with sufficient certainty to identify it. If not particularly and certainly described in the deed, the deed itself must make reference to something tangible by which the land can he located. Doe ex dem. Phillips Heirs v. Porter, 3 Ark. 18; Tolle v. Curley, 159. Ark. 175, 251 S. W. 377. The deed itself must Ifurnish a key by which the land sought to be conveyed may be identified.” See also Darnell v. Bibb, 143 Ark. 580, 221 S. W. 1061.

It is true that the words ‘‘corporation line” were used in some of the descriptions, indicating some municipal corporation, and that the town of West Helena had not ibeen incorporated when the deeds of trust were executed, hut the dedication deeds had been made and recorded, showing the lands platted, which were later incorporated as the town of West Helena, and the description in the trust deed in case No. 509 expressly states “except portions platted as a part of West Helena.” Then, too, the town had been incorporated, including virtually the platted lands, as shown by the dedication deeds, long before appellee had acquired any interest therein. They were described with sufficient certainty, the deed itself making reference to tangible landmarks and to portions of the lands “platted as a part of West Helena;” the dedication deeds and plats of West Helena within the sections of lands described therein being of record, thus furnishing a key by which the lands conveyed could be identified.

The burden of proof was upon appellee to show himself an innocent purchaser of the lands under the pleadings herein, and no testimony was introduced on his part conducing to prove it. He purchased at a judicial sale only the equity of redemption in the lands, expressly recognizing in his bid his knowledge that they were mortgaged to secure the loans of $50,000, made by appellant company, and could not have acquired any right as an innocent purchaser. The rule caveat emptor applies to judicial sales, and a purchaser at such sales takes only such title as the debtor had, his purchase being subject to claims of which he had actual or constructive notice. Rorer, Judicial Sales, § 50; Guynn v. McCauley, 32 Ark. 112; and Black v. Walston, 32 Ark. 324.

Appellee had actual notice of the description of the land in the deeds of trust and constructive notice by their record, as well as constructive notice of the dedication deeds and plats of the lands as West Helena, made before the execution o'f the mortgages, and of the incorporation of the town of West Helena virtually as platted in the dedication deeds, long before his attempted purchase of any interest in these lands. Tie could not therefore claim to be 'such an innocent purchaser as would prevent the court from reforming the deeds to more exactly describe the lands conveyed by the deeds of trust to conform tq the intention o'f the parties in the making.thereof, as shown by the undisputed testimony. Tanner v. Manos, 160 Ark. 293, 254 S. W. 676. The chancellor erred in holding otherwise.

There was no dispute as to the correctness of the amounts due as claimed in the several suits for foreclosure of the deeds of trust, nor of the right of appellants to recover such sums.

The decree is accordingly reversed, and the cause remanded with directions to overrule the demurrer and order a reformation of the deeds o'f trust in accordance with the prayer of the complaint, and for foreclosure thereof for the amounts claimed to 'be due, and for other necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Kirby, J.

text:
    Wysinger v. Taylor.
    Opinion delivered July 2, 1928.

      Pat McNalley and Jordani Sellers, for appellant.

      Joe Joiner, for appellee.
   Kirby, J.

Appellant contends that the foreclosure and sale of the lot in controversy, under the deed of trust from the church to Pinson, grantor in her bond for title, to whom the purchase price of the lot had been fully paid, conveyed an equitable title to her in possession, which was superior to any right of appellees to redeem, notwithstanding the substitute trustee’s name was not indorsed npon .the deed of trust or the record of it in accordance with its terms.

Appellant was in possession of the lot, claiming to be the owner thereof, and had been since January 1, 1912, under the bond for title executed by Pinson, the beneficiary in the deed of trust, to whom she claims the lot had been turned over in settlement of the church’s indebtedness to him. The testimony shows that she had been in possession of this lot continuously from the time of its purchase from Pinson until the bringing of this suit, and had paid all the agreed purchase price therefor, and was holding same under a trustee’s deed regular on its face and sufficient to establish her title to the lot and to have the same quieted in her but for the attack made thereon and proof of its invalidity because of the sale having been made and the deed executed by a substituted trustee, whose name had not been indorsd on the trust deed or record of it in accordance with its terms.

The foreclosure and sale by the substitute trustee, after appraisement and advertisement duly made in accordance with the terms of the trust deed, for more than two-thirds of the amount of the appraisement, to Pinson for appellee, and the conveyance thereof, vested in her an equitable title, the purchase money having been paid, notwithstanding the trustee’s deed was void because the appointment of the substitute trustee was n.ot in writing. In Daniel v. Garner, 71 Ark. 484, 76 S. W. 1063, a case where it was contended the sale made nnder the deed of trust was void because the appointment of the trustee who made it was not in writing, the court said, quoting syllabus:

“Where a sale by a substituted trustee was in accordance with the law and the terms of the trust deed, it vested in the purchaser an equitable title upon the payment of the purchase money, although the trustee’s deed was void because the appointment of such trustee was not in writing.” The court held there that, if the sale was in accordance with law and the deed of trust, it vested in the purchaser an equitable title, although no deed was made, and that such defense was both legal and equitable, and, if maintained, sufficient to defeat the action.

In Arkansas Insurance Co. v. McManus, 86 Ark. 120, 110 S. W. 798, the court said: “The equitable title, coupled with actual possession, bears with it all the incidents of legal title. This' constitutes in effect the legal title for all practical purposes. Under such a title, the possessor may defend his possession at law as well as in equity.”

It is true that was a case involving the construction of an insurance policy, wherein it was stated that the interest of the insured must be “unconditional and sole ownership, both legal and equitable,” but appellees herein would have had no right under the terms of the deed of trust, under which this foreclosure and sale was attempted to be made, if in fact it had been made by the trustee designated therein, or had the name of the substitute trustee been indorsed thereon in accordance with its terms, since the purchaser at the sale was. in possession of the lot, had paid the full purchase price thereof at the foreclosure sale, and would have acquired the legal title to the lot upon the conveyance thereof, except for the failure of the name of the substitute trustee to be indorsed upon the trust deed. She would, nevertheless, acquire the equitable title thereto, against which appellees have no more right to redeem from than they would have had if the foreclosure had been regularly had and a conveyance made by the trustee named in the deed or the substitute trustee regularly indorsed thereon.

Appellant being in the actual possession of the lot, with the equitable title thereto, was entitled to have her title quieted as against appellees, who were without right to redeem from the attempted foreclosure at the time of the bringing of the suit, and the court erred in hold-holding otherwise. The decree is accordingly reversed, and the cause remanded with directions to quiet the title to the lot in controversy in appellant in accordance with the prayer of her cross-complaint.


author: Mbhafty, J.

text:
    Pyland v. Gist.
    Opinion delivered July 2, 1928.

      Caraway, Baker S Gautney, for appellant.

      Bloch & Kirsch, for appellee.
   Mbhafty, J.

The appellees brought suit against J. E. Yaughan and Belle Vaughan, his wife, and Minnie Pyland, alleging that J. E. Vaughan and Belle Vaughan executed and delivered to J. P. Gist their promissory note for the sum of $1,000, due three years after date, and bearing interest at the rate of 8 per cent, per annum from date until paid, and that, to secure the payment of said note, J. E. Vaughan and wife made, exe-cuterl and delivered tó Roy Grim, as trustee for J. P. Gist, a deed of trust conveying the northeast quarter of the northwest quarter of section 26, township 16 north, range 7 east, in the Eastern District of Craighead County, Arkansas. It was alleged that Minnie Pyland, a niece of J. P. Gist, induced him to deliver the note to her for the purpose of collecting only. That she failed and refused to surrender the note and deed of trust, but claimed that Gist had given it to her.

Vaughan and his wife filed answer, admitting execution of the note, and their readiness and willingness to pay, hut that they were unable to determine to whom payment should be made, and refused to pay until the rightful ownership and possession of the note was determined. Minnie Pyland answered, admitting the relation between herself and plaintiff, Gist, admitted that she had the note and mortgage in her possession, but denied that it was given her for the purpose of collection, and asserted that it was given to her as a gift, and that it was duly assigned to her as such.

J. P. Gist, who was more than 80 years old, testified, in substance, that he lived in Dunklin County, Missouri; that he could not read and write, never went to school a day in his life; that Minnie Pyland was his niece, the daughter of his brother; that he gave her the note so she could collect it; that she asked him to give it to her, and that he did not care who collected it, just so it was collected. 'She was to collect it and pay it over to him, and had never done that. He had lost his hearing, or could not hear very well.

J. P. Miller testified that he knew Polk Gist, and had known him for more than 30 years; that he could not hear well for several years, and for the last four or five years had been very deaf, and that for the last few years his mind had not been very good; that this had existed for six or seven years. Witness also knew Minnie Pyland, and was present when there was a conversation between her and Senator Ely and his son. Ely and his son are practicing lawyers in Missouri, and had a case in Missouri against Mrs. Pyland. Mr. Ely asked Mrs. Pyland about the land deal, and asked her how she happened to have the note, and she told Mr. Ely that her uncle, Polk Gist, lived in Missouri, and had turned it over to her to collect because she lived in Arkansas, and instructed her to deposit it in the Bank of Monette after she had collected it.

J. E. Vaughan testified that he owed the debt, and that Minnie Pyland, in a conversation with him, had said the note was in the bank, and that it belonged to her, and that no one was going to beat him out it. That she further said they have been taking his money just as fast they could get it, and this is one time they are not going to beat him out of it. Witness’ wife was Gist’s niece, the same relation to Gist that Mrs. Pyland is.

Allen Cluster testified that he was present when J. E. Vaughan had a conversation with Mrs. Pyland, and that Mrs. Pyland said: “Whenever it is to be paid, it is to be paid in my name, so he will not be beat out of it”; and further said, “he gave it to me for collection.”

Tom Ely, Jr., testified that he was present when his father had the conversation with Minnie Pyland, and that Mrs. Pyland said that Mr. Gist lived in Missouri, and this land was in Arkansas, and he gave her .this note to collect.

Robert Braden testified that he had known Gist practically all his life, and that he helped to make the transfer of the note by Mr. Gist to Mrs. Pyland; he identified the note, and at the time of the transfer he wrote the typewritten part and his name there, and that Mr. Gist said he wanted to give the note to Mrs. Pyland; that Gist could not write; there was very little conversation; Gist was hard of hearing. Mrs. Pyland and Gist came into the bank, and she stated that Mr. Gist wanted to transfer the note to her, and witness wrote the indorsement on it and explained it to Mr. Gist. Gist asked the witness if he could give the note to Mrs. Pyland, and witness asked him if that was what he wanted to do, and he said it was. He could not write, and witness wrote Ms name. Mrs. Braden and Braden witnessed the mark.

Mrs. Braden testified abont witnessing the mark, and that nothing was said about taking the note for collection.

Maeey Pyland testified, in substance, that her husband was Mrs. Pyland’s son; she knows Mr. Gist, and knew abont the note from Vaughan, and knew that Vaughan had taken the bankrupt law, and Mr. Gist said that he had given the note to Minnie and she could make Vaughan pay it because she had a deed of trust to the land. She heard the conversation between Vaughan and Mrs. Pyland. She was also at Mrs. Pyland’s when Mr. Ely and Mr. Miller came there, and heard that conversation, and Mrs. Pyland did not say she had the note for collection; she did say that “for collection” is not on that note.

Mrs. Minnie Pyland testified that Gist gave her the note, signed it over to her at the bank, and gave it to her, and that she left the note at the bank. That when he gave her the note she thanked him and told him that he would not want for a penny of it, that she would collect it. There was nothing said and no agreement or understanding that she would collect it for him or give it back to him. That at the time he signed the note over, Mr. Braden asked him did he understand that he was transferring the note, and he said yes.

There were some other witnesses who testified, but the evidence is conflicting, and we deem it unnecessary to set it out in full.

A promissory note or any. chose in action or other evidence of debt, together with security, may be the subject of a gift inter vivos, and appellant contends that the proof conclusively shows that this was a gift inter vivos; that it is shown by the indorsement of the note and by the testimony of the Bradens and Mrs. Pyland, and that none of them are contradictory as to any fact, circumstance or detail of the transaction that took place at the time the gift was completed.

Gist testified that he gave the note to his niece for collection, and his testimony is corroborated by other witnesses. Mrs. Pyland testified that it was given to her absolutely and not for collection, and there is some corroboration of her testimony. It is therefore a question of fact, and the finding of the chancellor is conclusive here, unless it is against the preponderance of the evidence. This court has said: “While the numerical weight of the testimony is against the appellee, we do not think there is a preponderance of the evidence against the finding of the chancellor in holding that there was not a delivery of the deed with the intent to pass title. We have said that the question of delivery is generally one of intention as manifested by acts or words, and that there is no delivery unless, there is an intention on the part of the actors in the transaction to deliver the deed in order to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. As we have already said, we do not think the evidence in this case shows a delivery of the deed with the intention that the grantor shall not thereafter have any control or dominion over it. It is. a question largely of intention, to be determined by the evidence, and we think the chancellor’s finding is supported by a preponderance of the evidence.” Harden v. Russell, 175 Ark. 30, 298 S. W. 481.

“In appeals from the chancery court trials are de novo, but the findings of fact made by the chancellor are allowed to stand unless they are clearly against the preponderance of the evidence. ’ ’ Henry v. Irby, 175 Ark. 614, 1 S. W. (2d.) 49; Doane v. Rising Sun Mining Co., 139 Ark. 605, 213 S. W. 399; Hyner v. Bordeaux, 129 Ark. 120, 195 S. W. 3; Midyett v. Kerby, 129 Ark. 301, 195 S. W. 674; Houser v. Burchart & Levy, 130 Ark. 178, 197 S. W. 28; Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260.

As. this court has repeatedly held, to make a valid and effective gift inter vivos there must be an intention to transfer title to the property as well as a delivery by the donor and an acceptance by tbe donee. There must be an intention on the part of the donor to relinquish the right of dominion on the one hand and to create it on the other, and delivery must be not only of possession but also of the dominion and control of the property, and it must appear that it was the intention of the donor to transfer the title. In this case Grist swears positively that he did not intend to give the note to Mrs. Pyland, but that he gave it to her for collection, and the chancellor found that it was not a gift, and his finding is supported by a preponderance of the evidence, and the decree is therefore affirmed.


author: Mehaeey, J.

text:
    Supreme Lodge Woodmen of Union v. Montgomery.
    Opinion delivered July 2, 1928.

      J. DeWitt Shackleford and John D. Shackleford, for appellant.

      Scipio A. Jones, for appellee.
   Mehaeey, J.

The appellee brought suit in the Pulaski Circuit Court to recover $500' on an insurance policy issued by the appellant to Mary Martin Montgomery, mother of appellee.

.The defendant admitted issuing the policy, and admitted that the assured paid the premiums, and that it was indebted to the appellee in the sum of $250, less amounts already paid. Appellant, however, contends that the insured was not entitled to recover $500 because she knowingly misrepresented her age, and the amount should be one-half of the $500, because it is alleged she gave her age as 42, when her correct age was 47. Mary Martin Montgomery had paid premiums for eight years. Defendant alleged in its answer that the age limit in the grade in which the insured was, was 45, that persons must be between 15 and 45 years, and above 45 they would be entitled to one-half the benefits. The policy was issued in December, 1918, and the insured died in September, 1926. There is no dispute about her being in good standing at the time of her death, and the only controversy or dispute as to liability is the claim that she misrepresented her age, and for that reason is only entitled to half the benefits. Since this is the only issue in the case, except questions as to the admissibility of evidence and instructions of the court, it is unnecessary to set out the provisions of the policy or the evidence, except as it relates to the question of her age.

.The appellant requested the court to give the following instruction:

“The court instructs the jury that, if they find from the testimony that a policy for $500 would not have been issued by the defendant except on the representation in the application that the insured was 42 years, old, and if you further find from the testimony that, as a matter olf fact, the age of the applicant at the time of making the application was 47 years of age, and the amount permitted would have been only $250, then your verdict will be for the defendant, and you will so find.”

Appellant insists that the court erred in refusing to give this instruction. The instruction was improper, in the first place, because it directed the jury to find for the defendant if they found that her age was 47 instead of 42, although appellant admitted in its pleading that she was entitled to $149, that is $250, less the amounts which had been paid. Therefore it was improper, in any view of the case, to direct them to find for the defendant. The instruction was also improper for another reason. There is no testimony in the record tending to show that there was any misrepresentation as to her age, and the court properly directed a verdict for the plaintiff for $500, less the amounts which had been paid. It is conceded that, if her age was correctly stated in the application, she was entitled to $500, and the undisputed proof in this case shows that her age was correctly stated, or rather, there is no proof tending to show that it was not correctly stated.

The appellee testified that her mother said she was 38 at the time she entered the lodge. The proof of death, sworn to by several persons, showed that she was 45 years of age at the time of her death, eight years after she became a member of the lodge.

Appellant complains of the action of the court in refusing to permit it to introduce what it claimed were copies of the constitution and laws of the order. Section 6097 of Crawford & Moses’ Digest provides for amendments to constitutions and laws to be filed, and further provides as follows: “Printed copies of the constitutions and laws as amended, changed or added to, certified biy the secretary or corresponding officer of the society, shall be prima facie evidence of the legal adoption thereof. ’ ’ This proof was not offered. Appellant insists, however, that, while this was the best evidence, secondary evidence is admissible where the same is offered without proper objection. Appellant offered to introduce what the witness said were copies of the constitution and by-laws. They were not certified, and the witness offering them was not the secretary, and there was no competent evidence offered by the appellant as to the provisions of the constitution or laws of the order.

The appellant states that it relies on the case of Supreme Lodge Knights of Pythias v. Robbins, 70 Ark. 364, 67 S. W. 758, which it states would be in point had proper objections been made to the testimony offered. In that case the court said: “The rejected evidence, that is, the copy of the constitution and by-laws, was not attached or set out in the bill of exceptions, and the court was not able to get a clear idea as to what this document was or purported to be, and is not able to say that the court erred in excluding it. ’ ’ The court further said, in that case: “But, even' if the pamphlet had been included in the bill of exceptions, we would probably still have to hold that it was not shown to be a true copy by one having knowledge of the fact.” The court also said in the same case: “With reference to evidence of a witness as to what the law was, that the laws of the order were matters of record on the books of the order, and that they could not he proved by parol. * * * As it would he inconvenient to produce the original hooks, they should have been proved hy an examined or an authenticated copy. ’ ’

•The objections to the testimony in the instant case were sufficient. The testimony offered was wholly incompetent.

Appellant also insists that the court erred in excluding the cards which were exhibits 1 and 2. The undisputed evidence shows, that these cards were copied from the application, and the witness who offered to testify to them admitted that he did not make the copy, and he could not say that it was an exact copy; he had not examined it, and there was no evidence that the application itself could not be introduced. It is true the witness says the application was probably lost when they moved, but there is no testimony offered that any search had been made for it, and no offer to introduce a copy by any person who knew that it was a copy. There is therefore no competent evidence in the record that tends to show that the age of Mary Martin Montgomery was misstated in her application, and, since it is admitted in the pleadings that she had been a member, paying her dues for eight years, and admitted that, but for the misrepresentation as to her age, she would be entitled to the $500, there was nothing to submit to the jury.

Another reason why the exclusion of the cards was not error, is that it showed the payments made, and those payments were not disputed, and were deducted from the $500, and a verdict directed for the difference. Appellant claims that it had paid $149, being the difference between $250 and the amount paid, but the undisputed proof shows that the appellee never received the check, and it is also admitted in the evidence of appellant that, some time afterwards, the check was redeposited by the appellant, and, according to its own admission, it owed $149.

Appellant does not set out the testimony it offered, but simply calls attention to it in its motion for new trial, and, in order to have it passed on by this court, it would be necessary for appellant to abstract the testimony. The answer in this case admits liability, admits that the assured paid premiums for eight years, that she was in good standing at the time she died, and that its only defense is that she misrepresented her age, and there is no competent evidence offered tending to show that there was a misrepresentation as to her age; on the contrary, the competent evidence that her age was correctly stated is undisputed. The court therefore did not err in directing the verdict for plaintiff for $500, less the amounts which had been paid, and the judgment of the circuit court is affirmed.


author: McHaNey, J.

text:
    Bragg v. Thompson.
    Opinion delivered July 2, 1928.

      Davis £ Costen and Berry, Berry ■£ Berry, for appellant.

      Cecil Shane, for appellee.
   McHaNey, J.

On December 4, 1926, appellant, Zac T. Bragg, and 33 others applied by petition in writing to the county court of Crittenden County, describing the territory proposed to be embraced, for the incorporation of the village of West Memphis. The territory described is rather elongated and odd shaped, running from its northern boundary south along both sides of State Highway 61 to its intersection with State Highway No. 70, a distance of one mile, thence east along both sides of 70 for ia distance of one mile, thence south across the levee to the Mississippi River, a distance of about 1% miles:

According to the map filed in this court, practically all of the land south of No. 70 and north of the Chicago, Rock Island & Pacific Railway has been platted with streets, lots and blocks. The land east of No. 61 has not been platted, and includes a 65-acre tract belonging to appellee, Thompson, and a tract on which appellant, Bragg, has his mill. All the Thompson land is very valuable, he having sold a one-acre tract at the intersection of the two concrete highways for $10,000, and other tracts for large sums of money. The remaining 65 acres are conceded to be worth not less than $65,000. Although this land has been planted in cotton, its chief value lies in the fact that it is adjacent to the two State concrete highways, the village called West Memphis, and is also near the metropolitan city of Memphis, Tennessee. The territory included south of the Chicago, Rock Island & Pacific Railway to the river is not so valuable, but was included to give the town a location on the river to enable it to get better freight rates. The owner of this territory is not objecting to its inclusion in the corporate limits of the proposed town. The petition contained all the necessary allegations as prescribed by § 7664, C. & M. Digest, and contained tlie signatures of 34 persons who claimed to be inhabitants and qualified electors. The county fixed January 10, 1927, for a bearing on the petition, by an order requiring notice to be published as required by the statute. No hearing was had on the date set, but was adjourned from time to time until March 21, when the petition was granted and an order made incorporating the town of West Memphis. This order was not actually entered on said date, but was made. By an order nunc pro tunc, on August 19, the order of incorporation made March 21 was entered on that date for the former. It is as follows:

“An order incorporating the town of West Memphis. The above,-styled cause came on to be heard on the 21st day of March, 1927, the same being an adjourned day of a special term of said court, duly and legally called, and the matter was heard upon the petition of Z. T. Bragg and thirty-three others, and was heard upon evidence in open court. And it appears to the court that said petition prays for the organization of a town in Crittenden County, Arkansas, under the name of West Memphis; and it further appears that said petition is signed by at least twenty qualified voters residing within the limits of the proposed town, as described in said petition; and it further appears that the limits of said town have been accurately described in said petition, and an accurate map and plat thereof has been made and filed in this court; and it further appears that the name proposed for said town is proper and sufficient to distinguish it from others of like kind in this State; and it further appears to be right and proper, in the judgment and discretion of this court, that said petition be granted. Wherefore it is considered, ordered and adjudged that the town of West Memphis be and is hereby organized and said petition for same granted, and the limits of said town are described as follows” (describing it).

The order actually entered on March 21 is: “This cause coming on to be heard on this 21st day of March, 1927, the same being an adjourned day of the ¡special term duly and legally called, and the. court having granted the petition in this matter, and the remonstrants having duly excepted and prayed an appeal to the circuit court, said appeal is hereby granted.”

The precedent based on this order was not actually entered until August 19. Thereafter appellants and appellees discussed the matter otf officers for said town, and politics entered into the matter. Thompson had neglected to pay his poll tax, and was ineligible for mayor. At the election held, Bragg was elected mayor and the other appellants to various offices of the town. This election was held July 5, and on the 12th,' long after the time for appeal had expired, this suit was brought to enjoin the incorporation of the town and to prevent the officers from functioning as officers thereof. A. temporary order was issued, and on final hearing it was made permanent.

A reading of the record in this case is convincing that the appellees were fully aware of- every step taken in the organization of this little municipality. This being so, they had a full, complete and adequate remedy at law. -Section 7668, C. & M. Digest, is as follows:

“One month shall elapse from the time such transcripts are forwarded and delivered before notice shall be given olf an election of officers in such incorporated town, and any person interested may, at ¡any time within the said one month, make complaint in writing, in the nature of an application for an injunction to the circuit court, or the judge thereof in vacation, having given at least five days’ notice thereof, and furnished a copy of the complaint to the ¡agent or agents of the petitioners, for the purpose of having the organization of such proposed incorporated town prevented.”

This statute affords persons who desire to prevent the organization of a town, or for testing the legality thereof, a quick and adequate remedy for doing so. On the other hand, it is a short statute of limitations in favor of those who propose the organization. This remedy was not pursued in this case. Instead, appel-lees waited for more than 90 days — -until after the election of officers — to bring this action, and then in the chancery court. It is therefore a collateral attack on the judgment of the county court. In Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 108, this court said that “the county court is a court oif superior jurisdiction, and its judgment, rendered in pursuance of such jurisdiction rightfully acquired, cannot he attacked collaterally.” Sharum v. Meriwhether, 156 Ark. 331, 246 S. W. 501. Of course a .judgment void ab initio may be so declared on collateral attack.

The judgment of the county court in this case is not void on its face. The matter in hand was clearly within the jurisdiction, made -so by statute. Appellees argue that it is void because the corporate limits of the town include agricultural land, hut not so. This case is wholly different from that of Waldrop v. K. C. S. Ry., 131 Ark. 453, 199 S. W. 369, L. R. A. 1918B, 1081. There they attempted to organize a town taking in seven miles of territory along the railroad, where there was not even a village. The order was void for two reasons there: (1) because it was made at a time court was not in session, by the judge and not the court; and (2) it was an arbitrary abuse of discretion to incorporate a town where there was no semblance of any necessity 'for it. Here we have a thriving little village of a few hundred people, located on two railroads, the Mississippi River, and two hard-surface State highways, near the city of Memphis, Tenn. It has a compress covering 30 acres, electric lights, waterworks, hotels, rooming houses, ice plant, wood-working plants, various stores, meat markets, garages and oil stations, just as are found in any growing town. From 2,500 to 3,000 lots have been sold in the corporate limits, and houses are being built rapidly. Land values in the vicinity are very high, not because of their agricultural value, .but solely because of the other matters herein mentioned. The facts in this case meet every test laid down in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778.

We find it unnecessary to discuss all the points raised. While appellees alleged fraud in the procurement of the judgment, none is shown by the evidence. The conclusion we have reached is that the chancery court was without jurisdiction, and that the decree must‘be reversed, and remanded with directions to dismiss the complaint for want of- equity. It is so ordered.


author: Mehadey, J.

text:
    American Insurance Union v. Rowland.
    Opinion delivered July 2, 1928.

      Caraway, Baker & Gautney, for appellánt.

      Jeff Bratton, for appellee.
   Mehadey, J.

Tlie People’s Mutual Life Insurance Company, an assessment company, organized under the laws of the ¡State of Arkansas, with its home office at Jonesboro, Arkansas, in the. year 1916 issued a policy upon the life of Mrs. Jane Vandment of Paragould, Arkansas. Mrs. Vandment was placed in roll 3, and held certificate No. 869. The name of the company was after-wards changed to Mutual Life Insurance Company of Jonesboro. In June, 1900, the Jonesboro company entered into a contract with appellant, whereby appellant took over the membership of the Mutual Life Insurance Company, and the American Insurance Union became liable to the same extent ¡on every policy issued until it had reached its highest assessment. The highest assessment in Mrs. Vandment’s case was $1.49. After- the merger, her payments were $1.74, twenty-five cents of this being for chapter dues. iShe paid her dues according to the contract from 1916 to 1926. 'She paid the same dues after the merger as before. The policy issued by the People’s Life Insurance Company provided for the payment of assessments by members, and provided that, if death occurred within six months, the sum agreed to be paid was $100, but after six months the policy was to increase in value $12.50 on the first day of each calendar month for seventy-two consecutive months, until it reached its full value of $1,000, provided that the premiums were paid according to- the contract. The policy had a disability clause, one of the provisions of which was that, in the event the insured became insane or disabled by reason of insanity, premiums or assessments should cease during such disability.

When the appellant took over the Mutual Life Insurance Company of Jonesboro, it wrote to the members and certificate holders of the Mutual Life Insurance Company of Jonesboro, as follows:

“Dear Friend: Appended hereto is a rider to attach to the certificate or policy issued to you by the Mutual Life Insurance Company of Jonesboro, Arkansas. All you need to do is to attach this rider to your policy, and pay all assessments as usual. When this letter and rider is attached to your policy it is assumed by the American Insurance Union in accordance with the contract. You need not send us your policy.

“You are now a member of the American Insurance Union, entitled to all the rights and privileges of such members. Continue to send your assessments or premiums to the same place until further notice.

“'Congratulating you upon your admission to membership in this splendid association, we are,

“Fraternally yours,

‘ ‘ American Insurance Union. ’r

The rider which was inclosed, and which was to be attached to the policy, is as follow’s:

“The American Insurance Union hereby assumes the attached certificate of membership issued to the holder thereof by the Mutual Life Insurance Company of Jones-boro, Arkansas (or other company merged or affiliated therewith), and agrees to receive the holder thereof into membership in the American Insurance Union under said certificate in accordance with the terms and conditions of said certificate, the constitution and laws of the American Insurance Union, and the terms and conditions of the contract between the Mutual Life Insurance Company of Jonesboro and the American Insurance Union, dated June 1, 1920, a copy of which contract is on file in the Insurance Department of the State of Arkansas.

“Executed at 'Columbus, Ohm, this the 25th day of June, 1920. “John J. Sentz, President.

“Attest: Geo. W. Goglan, Secretary.”

Mrs. Yandment was adjudged insane on June 27, 1926, by the prohate court of G-reene County, but her dues were paid up to and including August, 19*26. Jane Vandment died-in the State Hospital for Nervous Diseases at Little Rock, in December, 1926.' The dues were paid and received by the American Insurance Union after the merger just as they were before the merger, until 1924, when the appellant sent a policy for $197 to Oail Rowland, and when he received same, he wrote the following letter:

‘1 American Insurance Company,

Mr. C. L. Jordan, Cashier.

“Dear sir: I received the new policy March 24, on Jane Vandment for the amount of $197, but the policy I taken out in 1916 with the Mutual Life Insurance Company was for $1,000 after 72 months, so I have paid on it for 92 months now. So you can give me a policy for $1,000 or refund the amount I have paid in, so let me hear at once.

“Yours truly,

“'Cail Rowland;”

In reply to Rowland’s letter, the appellant wrote as follows:

“Dear sir: In reply to your letter of recent date, we beg to advise that the officers of the Mutual Life Association found that the rates théy were charging were inadequate to purchase the amount of insurance promised in the policies. They therefore merg-ed with the American Insurance' Union. This society agreed to carry the policies until they reached maximum assessment dates and then give each member choice of two options for continuing insurance in the American Insurance Union.

“A circular letter was sent her describing the different options from which she could select the type of policy she desired. She continued to pay maximum assessments of $1.49, which purchases at her attained age $197 effective insurance. This is the amount that will be paid in the event of death of this member

‘ ‘ There is no provision in these policies for cash settlement or return of premiums paid by the members. The member has had protection for the time she paid the premiums.

“Trusting this will he satisfactory, we are,

“Your very truly,

American Insurance Union. ’ ’ “Medical Department.”

There was also introduced in evidence a copy of the contract between the Mutual Life Association and appellant and the testimony of witnesses as to the rules and regulations of the American Insurance Union, and also its constitution and by-laws. It is unnecessary to set out the testimony in full, hut so much of the evidence as is necessary to call attention to will be set out in the-opinion.

Appellant insists that an interpretation of thp contract made between the American Insurance Union and the Mutual Life Insurance 'Company will settle almost all the disputed questions in this suit. It is insisted that it was under no obligation to take over the members of the Mutual Life Insurance Company of Jonesboro, and when it did take them over it was under conditions of a contract dated June 1, 1920. If this contract was the only contract, and if the insured had agreed to it, appellant’s contention would be correct. However, after making this contract, appellant wrote to the insured and inclosed the rider. The letter stated: “Appended hereto is a rider to attach to the certificate or policy issued to you by the Mutual Life Insurance Company of Jonesboro, Arkansas. All you need to do is to attach the rider to your policy and pay your assessments • as usual. When this letter and rider' is attached to your policy, it is assumed by the American Insurance Union in accordance with the contract. You need not send us your policy.” Prom the statement in the letter, ‘ ‘ assumed in accordance with the contract, ’ ’ the assured had the right to believe that it meant the contract or policy issued by the Jonesboro Company. The rider referred to in the letter has been set out above. It states:

“The American Insurance Union hereby assumes the attached certificate of membership issued to the holder thereof by the Mutual Life Insurance Company of J onesboro, and agrees to receive the holder thereof into membership in the American Insurance Union under said 'certificate, and in accordance with the terms and conditions of said 'certificate, the 'Constitution and laws of the American Insurance Union and the terms and conditions of the contract between the Mutual Life Insurance Company of Jonesboro and the American Insurance Union, a copy of which contract is on file in the Insurance Department.”

Appellant did not send copy of its contract to the insured, but it contends that there is no liability, because an assessment was not paid in time. The clause exempting a member from paying assessments when insane is as- much a part of the contract as any other provision in the contract, and the undisputed evidence shows that Mrs. Vandment was insane at the time appellant claims the assessment was not paid in time. Both parties to the contract áre bound by it, but they are bound by all the provisions. The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and give effect to that intention, if it can be done consistently with legal principles. In order to ascertain the intention of the parties, this court has said :' ‘ Courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same 'situation as the parties who made the contract, so as to view the circumstances as they view them and so as to judge of the meaning of the words and the correct application of the language to the things described.” Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. (2d.) 801; Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258; Loudenbeck Fertilizer Co. v. Tenn. Phosphate Co., 121 F. 298, 61 L. R. A.402; Hoffman v. Moffioli, 104 Wis. 630, 80 N. W. 1032; Rockefellow v. Merritt, 76 F. 909, 35 L. R. A. 633; Minn. Milling Co. v. Goodnow, 40 Minn. 497, 42 N. W. 356, 4 L. R. A. 202.

Policies of insurance 'should receive a liberal and reasonable construction in favor of the beneficiaries. Pfeiffer v. Mo. State Life Ins. Co. 174 Ark. 783, 297 S. W. 847; Conn. Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730; Lord v. Des Moines F. Ins. Co., 99 Ark 476, 138 S. W. 1008; Great Southern Fire Ins. Co. v. Burns, 118 Ark. 22, 175 S. W. 1161.

This court has said: “Appellant is the author of the policy, so its provisions must be liberally construed in favor of the insured or beneficiary. Another way' of stating the rule is that the limitations or restrictions upon the liability contracted for should be construed strictly and most strongly against the insurer. Another well settled rule of construction is that, if the limitations or restrictions against liability contain ambiguities, they should be resolved against the insurer rather than the insured or beneficiary.” Life & Casualty Ins. Co. of Tenn. v. Ford, 172 Ark. 1098, 292 S. W. 389.

“A written contract should, in case of doubt, be interpreted against the party who has drawn the contract. 'Sometimes the rule is stated to be that, where doubt exists as to the construction of an instrument prepared by one party thereto, upon the faith of which the other has incurred an obligation, that construction will be adopted which will be favorable to the latter. * * * To state the same proposition conversely, it may be said that everything is to be taken most strongly against the party on whom the obligation of the contract rests.” 6 R. C. L. 854.

“It is also a well.settled rule in construing a contract that the intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument and not merely on disjointed or particular parts of it. The whole Context is to he considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should he rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review, for one clause may modify, limit or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. 'Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions.” 6 R. C. L. 837-8.

Viewing this contract as a whole and keeping in mind the above rules, we see no difficulty in holding that the meaning of the contract is that the assessments shall be paid monthly, unless the insured becomes insane, and then the assessments cease. In the instant case, the insurer made the contract, and, even if the insured had an opportunity to read the merger contract, we still think the disability clause was valid and binding, and that during the period of insanity no assessments are required to be paid, and the policy did not lapse because of failure to pay.

It is also contended by the appellant that the amount of premiums which the insured paid purchased a policy for $197.35 and not a policy for $1,000. We think appellant has misconstrued the contract, and that it does not mean that, when members of the Mutual Life Insurance Company under the circle plan pay monthly assessments provided in their certificates until such time as said payments or assessments shall reach the maximum, said member shall then have a policy for which said assessments are sufficient to pay, hut, on the contrary, the clause in the contract says: “And thereafter said members shall pay to the American Insurance Union each and every calendar month, a sum sufficient to meet the cost of their insurance and their proportionate share of the expenses of operation,” etc. Under the contract the insured had a right, when payments had been made for seventy-two months, to pay such assessments as she was called on by the company to pay to keep in force the policy of $1,000. The insured in this case had reached the maximum in 1922, had at that time been paying two years to the appellant company. It was then the duty of the appellant company, if it intended to increase the assessments, if it was necessary to increase them in order to keep in effect the $1,000 policy, to notify the insured of the amount of the assessments. Instead of doing this, it continued for two years more to send notices of assessment of the same amount, and the insured continued to pay these assessments. In fact, there was never at any time any change in the assessments, and the insured had a right to believe that she was still paying on the old certificate in accordance with the terms of .the letter and rider mailed to the insured to be attached to and become a part of the original certificate.

It is, however, insisted that a new policy of $197 was sent to the insured, and that she retained this policy, and is thereby estopped or is bound by a new policy for $197, and appellant quotes from and relies on the case of American Insurance Union v. Benson, 172 Ark. 1043, 291 S. W. 1007, and the case of Knight v. American Insurance Union, 172 Ark. 303, 288 S. W. 395. In the Benson case, above referred to, it is said by the court:

“The appellee bottoms his action against the appellant on the ground, under .the merger contract, that the appellant had assumed the liability on her policy of insurance. The case in this particular is ruled by the recent case of Knight v. American Insurance Union, 172 Ark. 303, 288 S. W. 395, where we -said: The conclusion is irresistible that the insured member did receive the rider for a continuance, after the merger contract, until his death, to pay his assessments to the appellee. The undisputed testimony therefore justified the trial court in finding that Horace Knight, the assured member, received a copy of the consolidation contract and accepted its provisions. The appellant predicated his cause of action upon such contract, and, having accepted the same, he is bound by these terms. ’ ’

One-difference between the case of Knight v. American Insurance Union and the instant case is that in the Knight case the undisputed facts showed that the assured was notified of the terms of the merger contract, to be attached as a rider to his certificate of insurance. The undisputed evidence in that case was that the American Insurance Union at the time of the merger sent a copy of the contract as a memorandum to each and every memlber of the Home Protective Association, with a receipt attached to the rider for acknowledgment by the member. In the instant case the undisputed proof is that the appellant did not send to the insured a copy of the merger contract, and that it was not attached to the policy, but the letter sent stated that the appellant assumed the original contract, and that contract had the disability clause, and the insured was never notified until two- years after the maximum assessment had 'been reached, and in the instant case the suit was based on the original certificate. In the Knight case it was based upon the merger contract. The Knight case and the Benson case are not in conflict with the decision in this case. This case is like the case of American Insurance Union v. Robinson, 170 Ark. 767, 281 S. W. 393, in which the court said: ‘ ‘ The rider attached to the certificate of insurance issued to Mary S. Robinson by the American Mutual Benefit Association of Jonesboro was an absolute assumption of liability under certificate No. 908, class 4, issued by the latter fraternal organization to Mrs. Robinson.” Mrs. Robinson never received the merger contract and never beard of it. In the instant case, Mrs. Vandment never received it, and the only thing* she ever heard about it was that the letter stated it was on file with the Insurance Department.

It is contended that Rowland paid on the new policy, and that it had the number of the new policy .and not the number of the old 'Certificate, but he was advised in the beginning that he would, pay his assessments as usual, and that, when the letter and rider were attached to the policy, it was assumed by the American Insurance Union in accordance with the contract. That necessarily meant the contract of insurance or certificate to which the rider was to be attached. The insured was under no obligation or duty to accept the new policy, and the policy did not lapse because of the failure to pay the premium on it, the insured at the time being insane.

Bach party requested a peremptory instruction, and requested no other instructions. This amounted to a submission of the question of liability to the court, and the court’s finding under such circumstances is as effective as the verdict of a jury. If there is any substantial evidence upon which to base the finding, it will not be disturbed. Webber v. Rodgers, 128 Ark 25, 193 S. W. 87. We think the evidence was ample to justify the court in finding for the plaintiff in the sum of $1,000 and interest, and the judgment is affirmed.


author: Méhaeey, J.

text:
    Wilson v. State.
    Opinion delivered July 2, 1928.

      Watkins & Pate, for appellant.
    . H. W. Applegate, Attorney- G-eneral, and Walter L. Pope, Assistant, for appellee.
   Méhaeey, J.

The appellant was indicted, tried and convicted for unlawfully, feloniously and carnally knowing and abusing a female under the age of 16 years. Appellant filed his motion for a new trial, which was overruled, exceptions saved, and he prosecutes this appeal to reverse the judgment of conviction.

Opal Sutton testified that she was 16 years old on March 24, 1928; that she knew W. A. Wilson; met him in December, 1927, and later, in December, met him again at Mrs. Carmack’s house, and that other persons at Mrs. Carmack’s went away and left her and Wilson alone. That, after they were left alone, they went back into the bedroom, and Wilson had intercourse with her; that she has had no improper relations with him since that time; that she and Wilson were in bed together from about 2' o’clock to 4 o’clock in the afternoon.- She admitted that she had made statements to others that she had had no improper relations with Wilson; that she made these statements because she was scared. She testified that she had never had such relations with men before that time; before the trial she made a sworn statement that she had never had improper relations with Wilson. She had sworn in the municipal court in North Little Rook that she had such improper relations, and also had sworn to the same facts -before the Pulaski County Grand Jury. Sbe bad made tbe statement tbat ber statement tbat sbe bad bad improper relations with Wilson was not true to a number of persons, and bad signed and sworn to a written statement tbat Wilson bad at no time ever bad intercourse with ber.

Her mother, A. Sutton, testified that Opal Sutton was 16 years of age on March 24, 1928; tbat Wilson came to ber bouse and wanted Opal to go to a show, but sbe did not permit her to go. That Mrs. Carmack came to ber bouse and begged ber to let Opal go to ber bouse, saying tbat they were giving a little party, and sbe let Opal go.

Henry Niehaus bad known Opal Sutton for about four months; did not know Wilson; took Opal Sutton to Mrs. Carmack’s bouse on Sunday.

Juanita Holland knew Opal Sutton, and knew Mrs. Carmack; bad seen Opal Sutton with May 'Carmack.

Arlene Snow testified tbat sbe bad known Wilson something more than a year; also knew Mrs. Carmack, and had been to Mrs. Carmack’s house; that Wilson lived at bis filling station on Park Hill, and May Carmack lived in a residence near tbe filling station. Sbe bad been on one of tbe parties; sbe was then at tbe industrial school under tbe care of the probation officers, and bad been there since tbe trouble arose.

Opal Sutton was recalled, and testified tbat no one tried to get ber to leave town; some one told ber tbat money bad been offered to take ber out of town, and that sbe bad better watch ber step. That Jack Ives told ber tbat Wilson offered him money to take Opal out of town, or marry ber, or something; tbat sbe bad no idea of going away with Ives; tbat Jack Ives was a bootlegger.

Tbe appellant, Wilson, testified tbat he ran a filling .station north of Park Hill, where he lived; that Opal Sutton went to tbe home of May Carmack, which was bis former home, in December, 1927, and be was there, but tbat be bad no improper relations with ber. Tbat May Carmack was appellant’s former wife, and Jack Carmack, May’s husband, and Henry Hodges were there at the time, and appellant’s wife was with him. Appellant testified at length about the bouse party and about being at May Carmack’s; be testified positively that be bad never had any improper relations with Opal Sutton. He also testified that Opal Sutton wanted to talk to him, and that be met her, and that she wanted to make it right and get right herself. That he was afraid to talk to her, and got her to go to Mr. Plate’s house, and then to Mr. Pate’s office next morning, and Mr. Pate was not there, but Mr. Watkins was, and the girl made this statement, and signed it and swore to it before Mr. Longstreth.

Appellant urges that the .judgment of conviction should be reversed on two grounds. (1) It is insisted that the court erred in permitting certain questions to be asked appellant on cross-examination. He was asked, “You have had lots of parties at your present place?”' and he answered “No.” . Then he was asked the question, “When did you quit?” These questions were objected to, and the court stated that it would be competent to show his habits, associations, etc. The prosecuting attorney asked him also, on cross-examination, in speaking of Arlene Snow, “Hasn’t she spent the night upstairs over your filling station in your room?” Appellant objected to this question. The prosecuting attorney was then permitted to ask the same question about Catherine Johnson, and asked the appellant, “Hasn’t she spent the night up there?” The court stated: “He has a right to cross-examine him and to inquire into his habits, his associations and associates. His association with young girls, and old girls, for that matter, to inquire into his past life and habits, but not as proof of this particular charge or any charge at all, but only as going to his credibility as a witness, and the jury will so regard it as only going to his 'Credibility as a witness, and not as proof of this particular charge. ’ ’ The prosecuting attorney then asked appellant if he had had intercourse with Catherine Johnson, and also asked him if he had ever had intercourse with Arlene 'Snow. He asked the same question as to Pearl Valentine. All these questions were objected to by appellant, and the court again said: “The jury will understand that this cross-examination only goes to the credibility of the witness, and it is to be considered for nothing else and has no bearing upon the guilt or innocence of the defendant on this charge.” Prosecuting attorney was also permitted to ask appellant: “Arlene Snow and Holland, this Holland woman, all came out there?” He then asked appellant: “All three of these girls have been at your house, upstairs, upon a party, or whatever you call it?” He was also asked: “Did you ever run Wood out of the room so you could have intercourse with Pearl Valentine?” He was then asked by the prosecuting attorney: “Didn’t you have him (Buddie Wood) out there selling liquor at $2 a pint?” The prosecuting attorney then asked him: “Have not you had so many parties out there that you are now under a charge of running a disorderly house?” All of these questions asked the appellant were objected to and exceptions saved, and appellant now urges that it was error to permit appellant to be asked these questions, land for that reason the case should be reversed.

It was not error to permit the prosecuting attorney to ask the witness the questions objected to. This court has said, quoting from Stephens on Evidence, “When a witness is cross-examined he may (be, in addition to the questions hereinbefore referred to, asked any questions which tend, (1) to test his accuracy, veracity, or credibility; or (2) to shake his credibility by injuring his character.” After the court quoted the above it continued: “We are not-called to approve the rule stated so broadly, but it is always competent to interrogate a witness on cross-examination touching his present or recent residence, occupation and associations, and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility. That such a life tends to discredit the testimony of the witness, no one can deny; when disclosed on cross-examination, it is exclusively for the jury to determine whether any truth can come from such source, and if so, how much. The right to impair the evidence of a witness by cross-examination must not be confounded with the right to impeach a witness by evidence introduced by the opposite party. * # # Yet it is held that, for the purpose of discrediting his testimony, the witness may be asked upon cross-examination as to specific acts.” Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41.

The court in this case told the jury that this testimony only went to the credibility of the witness, that it could be considered for nothing else, and that it had no bearing upon the guilt or innocence of the defendant on this charge. Under the instructions of the court, the jury could not have considered this evidence as proof of the charge against him, but they could only consider it as affecting his credibility as a witness. This court, in a recent case, quoted with approval the following:

“It has always been held that, within reasonable limits, a witness may, upon cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility.” Bowlin v. State, 175 Ark. 1115, 1 S. W. (2d.) 553. See also Whittaker v. State, 171 Ark. 762, 286 S. W. 937; Barton v. State, 175 Ark. 120, 298 S. W. 937; Garrison v. State, 148 Ark. 370, 230 S. W. 4.

This court has uniformly held that a defendant, on cross-examination, may be asked questions which affect his credibility as a witness, and that it is not improper to do so, although the questions may be about specific acts. Of course it is proper for the court to tell the jury, as was done in this ease, that such evidence is not proof of the charge for which he is being tried, but that it can be considered only as affecting the credibility of the 'witness, and that they cannot consider it for any other purpose.

It is next insisted that the evidence is not sufficient to sustain the verdict. The court gave the following instruction to the jury: i£In this case the defendant, like any other defendant charged with a crime, is presumed to be innocent. This is the presumption that begins with the commencement of a trial and continues throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt, and that the offense was committed in this county and State within three years next before the finding of the indictment. ’ ’

The jury therefore, under the instructions • of the court, could not convict the defendant unless they believed from the evidence beyond a reasonable doubt that he was guilty. The prosecuting witness testified positively as to their relation, and the appellant testified positively that no such relation ever existed. The weight of the evidence and credibility of the witnesses were questions for the jury. This court does not pass upon the credibility of witnesses nor upon the weight of the evidence. If there is competent evidence of a substantial character, the verdict of the jury is controlling here. The testimony of the prosecuting witness was sufficient to warrant a conviction. “It is well settled in this State that, in the prosecution for carnally knowing a female under 16 years of age, a conviction may be had upon the uncorroborated testimony of the prosecutrix alone.” Seaton v. State, 151 Ark. 240, 235 S. W. 794.

The judgment of the circuit court .is affirmed.