text:
    Arlington Hotel Company v. Fant.
    Opinion delivered March 12, 1928.
    1. Appeal and error — decision on former appeal. — A decision of this court on former appeal, that the State court had jurdsdic- . tion of actions to enforce the liability of innkeepers, accruing in the territory ceded to the United States, and that Crawford & Moses’ Dig., § 5567, enacted by the State subsequent to the cession of jurisdiction over such territory, is inapplicable to causes of action * * * arising in such territory, held the law of the case on the second appeal.
    2. United states — state laws in force upon reservation. — The laws of Arkansas in existence when the State ceded the territory constituting the Hot Springs Reservation to the United States remain in effect upon such reservation, in so far as'they are not inconsistent with the laws of the United States and have not been abrogated.

      8. United states — operation of state statute on reservation.— Crawford & Moses’ Dig., § 5567, restricting the liability of innkeepers for the loss of baggage of guests, held not operative in territory ceded to the" United States as the Hot Springs Reservation, since the statute was enacted after cession .of .the territory.
    Appeal from Carland Circuit Court; Earl Witt, Judge;
    affirmed.

      Martin, Wootton & Martin, for appellant.

      Cockrill & Armistead and Murphy & Wood, for appellee.
   Mehaffy, J.

Three suits were begun in the Car-land Circuit Court against the appellant, and were consolidated by order of the court, and tried together. The suits were to recover compensation for loss of baggage which was destroyed in the fire on April 5, 1923, when the .Arlington Hotel was burned.

This is the second appeal in this case. The decision on the former appeal is in 170 Arkansas 440, 280 S. W. 20. When the suits were first brought in the Garland Circuit Court the court sustained a demurrer to the complaints of the plaintiffs, and, when the case was here before, the court said that the demurrers presented a question, first, whether or not the courts of this State have jurisdiction to enforce civil liability which accrued within territory over which exclusive jurisdiction has been ceded by the State to the United 'States Government,-* and second, whether or not ,a statute regulating civil liability, enacted after a cession of jurisdiction, is applicable to causes of action arising within that territory. And on the questions above mentioned, which were passed upon by this court in the former appeal, the decision on the former appeal is the law of the case on second appeal.

The court on the former appeal, after stating the questions raised by the demurrer, said:

“Our conclusion in regard to the first question is that the courts of this State are not deprived, by the State’s cession to the General Government of exclusive jurisdiction, of the right to exercise judicial power in the enforcement of rights of action in civil matters which accrue in the ceded territory. We are not dealing with a local action, such as one which concerns the title to real estate, and what we say now must, of course, be confined to the character of action involved in these appeals. These are transitory actions which may be enforced anywhere that jurisdiction can be acquired over the person of the defendant. * * * The power of the State and General Government over ceded territory has been discussed at length by the decisions of the Supreme Court of the United States in several cases.”
The court then cites the cases that have discussed this question. Again the court said: “The next question presented is one which necessarily arises, but which counsel for appellee disclaims being presented in the present status of the case.”

This second question is whether or not the statute regulating civil liability enacted after the cession of jurisdiction is applicable to causes of action arising •within that territory. The court, it will-be observed, held that this question necessarily arose, and it was stated: “We think it is equally clear that the statute was inoperative. The cession of jurisdiction was necessarily one of political power, and it took • away the authority of the State Government to legislate over the territory ceded to the General Government.” Fant v. Arlington Hotel Co., 170 Ark. 440, 280 S. W. 20.

Appellants also rely on the case of Williams v. Arlington Hotel Co., decided by the United States District Court for the Eastern District of Arkansas. This suit grew out of the same fire, and after appellant’s argument in this case was decided by the Court of Appeals, and the Court of Appeals reached the same conclusion that was reached by this court in the case above referred to. The district court, in the case of Williams v. Arlington Hotel Co., sustained ;a demurrer to the petition, and the Court of Appeals said:

“We think the trial court was in error, under the 'authority of the three so-called Leavenworth Reservation cases” (citing the cases), and the court then said of the cases relied on: “The above quotations show clearly that those cases involved portions of the reservation not being then used for military or other governmental purposes. Therefore we think they are.directly in point here as to the validity of the cession made by the State of Arkansas. The McGlinn case (114 U. S. 542, 5 S. Ct. 1005, 29 L. ed. 270), is direct authority for the contention made by plaintiff in error, that the laws of the State in existence at the time of the cession continue upon the reservation, where not inconsistent with the laws of the United States or where not abrogated by Congress after the cession.” Williams v. Arlington Hotel Co. (C. C. A.), 22F. (2d.) 669.

It therefore seems settled by the above authorities that the laws in existence in the State of Arkansas at the time of the cession are still in effect upon the reservation, as they are not inconsistent with the laws of the United States and have not been abrogated, and that the law of 1913 relied on by appellant is not operative.

Since we hold that the questions of law are settled by these authorities, it becomes unnecessary to decide any other question discussed by counsel.

The judgment of the G-arland Circuit Court is therefore affirmed.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Sharp v. West.
    Opinion delivered March 12, 1928.
    1. Brokers — weight of evidence. — The weight of evidence was a question for the jury in a real estate broker’s action for a commission.
    2. Trial — credibility of witnesses. — The credibility of witnesses was a question for the jury in a real estate 'broker’s action for commission.
    3. Appeal and error — conclusiveness of jury’s finding. — A jury’s finding, if supported by substantial evidence, is conclusive on appeal.
    4. Brokers — when agency not exclusive.- — An owner’s agreement to pay a real estate broker a specified commission if he would find a purchaser, held not to create an exclusive agency for the sale of the property.
    5. Brokers — right to commission. — A broker, in order to be entitled to- a commission, is bound to procure a purchaser ready, able, and willing to buy the property.
    6. Brokers — procurement of purchaser — evidence.—Where a real estate broker procured a purchaser, and this purchaser bought the land, this was the best possible proof that the broker procured a purchaser -who was ready, able, and willing to buy the property.
    7. Brokers — procurement of purchaser — evidence. — Evidence held sufficient to sustain a finding that a real-estate broker procured a purchaser to whom the land was sold.
    8. Appeal and error — remarks of court — prejudice.—Remarks of the court in ruling on a question put to- a witness, that, if defend■ant’s broker procured a purchaser and sale was made to him, the fact that it was made by canceling’ defendant’s contract with the bank and letting the bank convey to the purchaser would not prevent the broker from recovering his commissions, held not prejudicial.
    . 9. Brokers — instruction.—An instruction that the burden was upon a real estate broker suing the owner of land for a commission to show that he did procure a purchaser, held not error.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      W. R. Morrow, for appellant.

      L. A. Hardin, for appellee.
   Mehaffy, J.

The appellee brought this suit, alleging that he prooured a purchaser for certain property of appellant, under a contract by which he was to be paid a commission of $75 for procuring a purchaser at a price of $2,500, terms to be agreed on between appellant and purchaser. The appellant had purchased the property from the Bankers’ Trust Company for $2,100, paying $200 cash and agreeing to pay $20 a month. He was • behind in his monthly payments, and wanted to sell the property, and agreed with appellee that, if appellee would find him a purchaser, he would pay him, as commissions, $25 cash and $12.50 a month for four months.

There was some conflict in the evidence, but the weight of the evidence and the credibility of the witnesses were questions for the jury, and if the jury’s finding is supported by any substantial evidence it is conclusive on this court.

Appellant contends, first, that, as there was no exclusive agency for the sale of the property and no definite time within which West was to find a purchaser, the authority was revoked. He contends that, before an agent is entitled to commissions, he must procure a purchaser ready, able, and willing to buy.

Appellant is correct in his statement that there was no exclusive agency, and he is also correct in his statement that an agent, in order to be entitled to commissions, must procure a purchaser ready, able, and willing to buy. The proof shows that appellee did procure a purchaser, and that this purchaser bought the property. There could be no better evidence of one’s being ready, able and willing to.buy than the fact that he did actually buy, as the purchaser secured by West did in this case. Appellant, however, contends that the evidence is not legally sufficient to show that appellee procured the purchaser to whom the property was sold.

The undisputed evidence shows that there was a contract, and that the commission was to be $75. Appellee testified that he advertised the property in the Democrat, and showed it to two or three persons, one. of them being Mr. Warrington, and that Mr. Browning came with Mr. Warrington and looked at the property. Appellee also testified that Browning told him he was ready to buy the place; that he wanted to close the deal, and appellee then got in touch with Mr. Sharp. Browning corroborates appellee in this. The undisputed proof shows that the property was sold to Browning. Sharp had bought from the bank, was behind with his payments, and, after West had'got Browning interested, Sharp went, to the bank and requested the bank to refund the money that he had paid and take a new contract with Browning. The bank declined to do this, but finally agreed with Sharp that it would give him credit for the amount he had paid on the price of some lots on the pike. This was done, and the contract between Sharp and the bank was canceled, and the bank made a contract with Browning by which Browning was 'to pay $2,500 for the property. The cancellation of the Sharp contract and the sale by the bank to Browning was all one transaction, and the sale was made to a purchaser procured by West, and Sharp received the benefit exactly as he would if he had sold directly to Browning'. This testimony about the transaction with the bank is' undisputed.

The appellant also complains of the remarks made by the court. Appellant’s attorney asked a question of Risley, and the court stated: “I do not think that is material in this case; it is taking up unnecessary time. ’ ’ Whereupon the attorney stated: “I am trying to prove how the property was sold, and by whom.” The court -then said: ‘ There is no dispute about to whom it was sold, is there?” and then stated: “As far as that is concerned, if the sale was made to Browning, and the plaintiff procured the purchaser and brought about the sale, I am going to instruct the jury to find for the plaintiff if they find those facts. I will not allow any such defense that the sale was made to the bank, so far as this case goes.” Appellant insists that the above remarks of the court were prejudicial.

We do not think so. We have already said that the cancellation of Sharp’s contract and the sale to the bank was but one transaction. The remarks of the court amounted to no more than saying that, if West procured a purchaser, and the sale was made to him, the fact that it was made by canceling Sharp’s contract and letting the bank convey to Browning would not prevent West from recovering his commissions.

Of course, the court could not charge the jury with regard to matters of fact, but these are facts about which there was no dispute, and it was therefore a question of law and proper to tell the jury that the manner in which the contracts were made was immaterial; that, if West procured a purchaser, and the purchaser bought the property, the fact that it was made in the manner in which it was was immaterial. The court properly instructed the jury, telling them that, before a real estate broker was entitled to a commission for selling real estate or procuring a purchaser, he must procure a purchaser, and must, by his efforts, bring about a sale of the property, and that the burden was upon the plaintiff to show that he did procure a purchaser, and this must be shown by a preponderance of the evidence.

The court fully instructed the jury, and- we find no error, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Eisenmayer Milling Company v. George E. Shelton Produce Company.
    Opinion delivered March 12, 1928.
    Corporations — foreign corporation doing business in state.— Where a foreign corporation shipped flour into the State for sale by brokers and stored the flour with a produce company, retaining the title to the flour, and thereafter, on failure of the brokers to sell the flour, arranged with the produce company to sell it, the transaction being nothing more than an agency contract, held that the corporation was “doing business in the State,” within Crawford & Moses’ Dig., §§ "1825-1832, regulating foreign corporations doing business within the State, and, not having complied therewith, was precluded from'maintaining an action within the State.
    .Appeal .from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Rogers, Barber & Henry and J. A. Tellier, for appellant.

      John E. Miller and Charles W. Mehaffy, for appellee.
   McHaney, J.

The only question necessary for our determination in this case is whether. the appellant, a Missouri corporation, not having complied with the laws of this State relating to foreign corporations, was doing business in this State in violation of such laws, and therefore not authorized to maintain this action. The circuit court held against appellant in this regard, and it has appealed. The facts are substantially as follows:

Appellant shipped a carload of flour to Sevier & Linthicum, brokers, in Little Rock, and had same stored with appellee for a stipulated fee of 30 cents per barrel for storage and delivery, and invoiced same to Sevier & Linthicum at a stipulated price, to be sold by them at such price above the invoice price as they might add by way of profit, and requested appellee to furnish appellant with copies of dray tickets in order that they might check deliveries. Appellant also instructed appellee to have said flour insured in the name of appellant, and have the policy sent to it,, and it would pay the premium. In other words, appellant shipped and -invoiced a carload of flour to Sevier & Linthicum, and, by its own arrangement, stored same with appellee, insuring it in its own name, was the owner of the property, and authorized Sevier & Linthicum to peddle the flour out to purchasers at their own price, and to settle with it for the invoice price. A letter from appellant to appellee regarding these matters is as follows:

“Please confirm by mail to the Eisenmayer Milling Co., Springfield, Missouri, arrangement we made yesterday for you to store and deliver our flour in Little Rock on basis of 30 cents per barrel. We will be represented in Little Rock by Sevier & Linthicum, and you will please make deliveries in accordance with their instructions, and mail the mill once a week copies of all dray tickets; these dray tickets will enable the mill to keep track of the flour in your warehouse, as well as the sales made by Sevier & Linthicum. I will also ask that you kindly attend to the insurance as soon as the first car arrives, have policy issued for $2,000 in favor of Eisenmayer Milling Company, Springfield, Missouri. Please instruct agent to mail policy direct to the mill, and they will remit to cover.”

This arrangement between appellant and the brokers lasted only three or four weeks, during which time the brokers sold only eleven or twelve barrels of this carload of flour, and paid appellant therefor. Sevier & Linthicnm then dissolved partnership, and, as a result, were unable to continue to dispose of appellant’s flour. Upon being advised of this fact, appellant arranged with appellee to sell the remainder of this carload of flour, and to remit to it as the flour was sold, appellee to receive 30 cents per barrel selling charge, in addition to the 30 cents per barrel for storage and delivery, and a charge made for re-sacking some of the flour, sacks for which were furnished by appellant. In other words, the arrangement made with the 'brokers, and, subsequent thereto, with appellee, was nothing more than an agency contract with the brokers and appellee to sell appellant’s flour and to remit therefor as the same was sold. There was no outright sale of said flour either to the brokers, Sevier & Linthicum, or to appellee. Such flour' was not the property of the brokers or appellee, could not have been levied upon by creditors as their property, but, on the contrary, according- to the undisputed testimony of appellant’s witnesses, said flour had at all times belonged to it, and was being sold for its account by the brokers and appellee. Appellee failed to pay for a portion of said flour, and this suit resulted.

As heretofore stated, the circuit court held that appellant was doing- business in this State in violation of the foreign corporation laws of this State, and was therefore not authorized to maintain this suit. Sections 1825 to 1832 inclusive, C. & M. Digest, provide the terms and conditions under which foreign corporations may do business in this State, and the penalty for doing such business without compliance therewith, a part of the penalty therefor being the making unenforceable of any contract by such foreign corporation in this State, and prohibiting its enforcement in any of the courts of this State.

In the recent case of Kansas City Structural Steel Co. v. State, 161 Ark. 483, 256 S. W. 845, the steel company, a foreign corporation, contracted to build a bridge in this State, and sublet the work to the Yancey Construction Company. It thereafter shipped the structural steel into this State, consigned it to itself, and furnished the subcontractors with bolts, reinforced rods and other material, although the actual work of construction was done by the Yancey Construction Company as independent contractors, and this court held that these transactions constituted “doing business” in this State within the provisions of C. & M. Digest, §§ 1825-1832, regulating-foreign corporations doing business in this State as aforesaid. In that case, as in this, the contention of appellant was that these transactions were wholly interstate in character. They relied there, as here, upon the case of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, 236 S. W. 825, and L. D. Powell Co. v. Roun tree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414. We there held, as we now hold, that the facts in those cases do not control here. To illustrate, in the case of L. D. Powell Co. v. Rountree, supra, the L. D. Powell Company is a lawbook company, a foreign corporation, not having complied with the laws of this State, and, through its traveling salesman, took an order from a party in this State for the sale of certain law-books, which were shipped to the purchaser under a contract retaining title until the purchase price was paid. The purchaser thereof, having failed to pay for the books, later turned them over to an attorney in payment of a fee. The book company claimed the books under its reservation of title, and the attorney having them in possession admitted the validity of the claim and offered to deliver the books to the agent , of the company. The agent thereupon, by agreement with the attorney, resold the books to him, under a contract similar to the one under which they were first sold. This court held that the first transaction was interstate in character, and that the latter was but a continuation of the original transaction, and did not constitute the doing of business in this State in violation of our laws. It was there said:

“The books were not shipped into the State as sole and independent property of áppellant for the purpose of selling them to the appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of'the interstate transaction.” Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58.

In the latter case this court differentiated between an interstate and intrastate transaction- as' follows:

“One test laid down by tbe Arkansas cases differentiating an interstate transaction from an intrastate transaction is tbe ownership of the property after it arrives in the State. An interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.”

We think the facts in the case at bar are much strong-er to show an intrastate transaction than were the facts in the cases just quoted from. Here there was no sale of the flour to Sevier & Linthicum. On the contrary, it was shipped and invoiced to them, stored with appellee by an arrangement made between appellant and appellee to pay 30 cents, per barrel for storage and delivery while Sevier & Linthicum were peddling the flour to such purchasers as they might induce to buy same. This arrangement lasted about three weeks, during which time Sevier & Linthicum sold only about twelve barrels of flour, for which they paid appellant, and then dissolved their partnership-. Thereupon appellant employed appellee to sell its flour, and agreed to pay him an additional 30 cents per barrel for making sales thereof. The facts in this case are altogether different from those in the recent ease of Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609, where many of the decisions of this court pertaining to this subject are collected.

It would serve no useful purpose to set out the facts in that case and ¡attempt to distinguish it from this. Suffice it to say that the undisputed facts here show that the shipment of the flour into this State in the first instance was not a sale to Sevier & Linthicum, and that the arrangement between appellant and appellee was not a sale thereof in continuation of the former arrangement between appellant and Sevier & Linthicum. It amounted to no more than a storage of the flour in this State as its own, ¡and the employment of an agent to make sales thereof from time to time, as purchasers could be found therefor. Had it been a sale in the first instance, with title retained, and the flour retaken and a resale thereof made to appellee, the facts would be wholly different, and the result would be a transaction in interstate commerce, as held in the case of L. D. Powell Co. v. Rountree, supra.

We therefore hold that the undisputed facts show the transactions in this State were intrastate in character, which constituted the doing of business in this State in violation of law, and that appellant cannot maintain this action. Judgment affirmed.

Mehaeey, J., disqualified, and not participating.

Kirby, J., dissents.


author: Hart, C. J.

text:
    Walker v. Ferguson.
    Opinion delivered March 12, 1928.
    1. Constitutional law-impairment op obligation op contract.— Where lands are sold at a tax sale, and are struck off to a private purchaser, the sale for the delinquent taxes constitutes a contract between the purchaser and the State or the instrumentality of the State, the obligation of which cannot be impaired by subsequent legislation extending the period for redemption.
    2. Constitutional law — impairment op obligation op contract.— The title acquired by the State or an instrumentality thereof at a tax sale is not the same as that vested in a private purchaser, since the object of the purchaser is not the acquisition of the property, but rather the collection of the taxes, and the period of redemption may be extended by subsequent legislation without impairing the obligation of the contract.
    3. Taxation — extension op time for redemption. — The Legislature may bind the State and its assignee 'by an act extending the time for redemption from a tax sale to the State, such extension being without the State’s consent, while the subsequent assignees of the State’s title take subject to the conditions imposed by existing statutes.
    4. Highways — effect op road district’s deed. — A quitclaim deed, executed by a road improvement district which purchased lands conveyed at tax sale, carried only such title as the district had when the deed was executed.
    5. Highways — tax sale to road district — redemption.—Under Acts 1925, p. 1033, § 1, the owner of land sold for taxes in 1923 to a road improvement district, which executed a quitclaim deed to another in 1926, had three years in addition to the two years allowed by Acts 1921, p. 296, to redeem; a grantee having acquired no greater rights than the district had.
    Appeal from Grant Chancery Court; William B. Duffie, Chancellor ;
    affirmed.

      Isaac McClellan, for appellant.

      Brouse & McDaniel, for appellee.
   Hart, C. J.

On May 24, 1926, the appellees brought suit in equity against the appellants to cancel a deed by appellant road district to appellee Ferguson, and also to redeem the lands embraced in the complaint from the t)ax sale, if it should be held that the sale was valid. The suit was defended on the ground that the sale was valid and that the appellees’ time for redemption had expired.

The facts necessary to a decision of the issues raised by the appeal may be briefly stated as follows: Road Improvement District No. 9 of Grant County, Arkansas, was duly organized under the provisions of what is commonly called the Alexander Road Law. A. L. Ferguson had been the former owner of the lands involved in this suit, and had sold them to J. R. Kern. The lands were forfeited for the nonpayment of the road taxes for the years 1922 and 1923, while J. R. Kern owned them. Kern failed to pay the purchase price of the lands, and reconveyed them to A. L. Ferguson. The improvement district commissioners foreclosed in -equity the lien of the road district, and the lands were struck off to it at the foreclosure sale for the nonpayment of the road taxes for the years 1922 and 1923. On April 8, 1924, the lands were redeemed by A. L. Ferguson for the taxes for the year 1923. On December 19, 1925, a deed was executed by the commissioner who conducted the foreclosure sale to the commissioners of the road improvement district. On January 11, 1926, the road improvement commissioners executed a quitclaim deed to said lands to J. S, Walker. Other facts will be stated or referred to in the opinion.

The chancellor was of the opinion that the appellees were entitled to redeem said lands, and were allowed to do so upon the payment, within thirty days, of the delinquent road taxes found to be due. A decree was accordingly entered of record permitting’ the appellees to redeem said lands in accordance with the finding of the chancellor, and to reverse that decree the appellants have duly prosecuted this appeal.

The principles of law applicable to cases of this sort and numerous decisions announcing them are cited and reviewed in Northern Road Improvement District v. Meyerman, 169 Ark. 383, 275 S. W. 762, and no useful purpose could'be served by again extensively reviewing these principles. Where lands are sold at a tax sale and are struck off to a private purchaser, the sale for the delinquent taxes constitutes a contract between the purchaser and the State, or the instrumentality of the State, the obligation of which cannot be impaired by subsequent legislation extending the period of the right to redeem. ' Hence this court has held that the right to redeem in such cases from a tax sale is governed by the statute in existence at the time the sale is made, and no subsequent statute extending the period of time for the right to redeem is constitutional.

The title acquired by the State, or an instrumentality thereof, at a tax sale is not the same as that vesting in a private purchaser, since the object of the purchase is not the acquisition of the property, but rather the collection of the taxes. 37 Cyc. 1355, and Commissioners v. Lucas, 93 U. S. 108, 23 L. ed. 822. Hence the rule that a statute extending the time to redeem from a tax sale is not constitutionally applicable to sales made before its enactment is subject to an exception where the State or one of its instrumental subdivisions was the purchaser.

The Legislature may bind the State and its assignee by an act extending the time of redemption from tax sales, because, as to the State, the grant of additional time to landowners to redeem is with its ¡consent, and, las respects subsequent assignees of the title acquired by tbe State, they, of course, take subject to the conditions imposed by the existing statute. Case-note to 1 A. L. R. 145, 38 A. L. R. at 229; State v. Smith, 36 Minn. 456, 32 N. W. 174; Adhin v. Pillen, 136 Mich. 682, 100 N. W. 176; Pace v. Wight, 25 N. M. 276, 181 Pac. 430; Warner v. Pile, 105 Kan. 724, 185 Pac. 1041.

As we have already seen, the road district in question was organized under the general laws of the State, 'and the statute applicable at the time the lands were struck off to the district at the foreclosure sale for the nonpayment of the road taxes for the year 1922 was act No. 223 of the Acts of 1921, page 296, amending § 5440 of Crawford & Moses’ Digest. Under this act the period of redemption was two years, and it is claimed by counsel for the appellants that this act ¡applies. The record shows that the lands were struck off to the district and that it executed a quitclaim deed to J. S. Walker on January 11, 1926. This deed carried only such title as the road improvement district had at the time it was executed. St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, 51 S. W. 68. Thus it will be seen that the right of appellees to redeem depends upon whether or not the statute of 1925 extending the time to redeem the property sold for delinquent taxes in road improvement districts applies. See Acts of 1925, page 1033. Section 1 of that act reads, as follows:

“That the time for the redemption of any land or real property situated in any road improvement district in this State, on which default has been made in the payment of any annual assessment or installment upon the assessed benefits or betterments, shall be and is hereby extended for a period of three years, in addition to the period of redemption heretofore fixed by law for the redemption of lands for the nonpayment of such annual assessment in any and all improvement districts. ’ ’

Under the principles of law above announced, it cannot be questioned that it was competent to extend the time for redemption for property sold for the nonpayment of road taxes, so far as the rights of the State or its instrumentalities are concerned. This brings us, then, to the question of whether or not the Legislature has expressed an intention to that effect in 1925. It will he noted that the language of the act is very explicit. It provides that the time for the redemption of any land situated in any road improvement district in the State on which default has been made in the payment of any annual assessment shall be and is hereby extended for a period of three years, in addition to the period of time heretofore fixed for the redemption of such land. The Legislature could not have more plainly manifested its intention to extend the period of redemption for a period of three years longer than that already given to the landowners. Under the statute in existence at the time the sale was made, in 1923, the landowner had a period of two years. ,Add to this three years, and this gave him five years within which to redeem his land. The period of redemption had not expired at the time this suit was brought. The purchaser from the road district stood in its shoes, under the principles of law ■above announced, and J. S. Walker, having purchased after the passage of the act of 1925 extending the period of redemption, acquired no greater rights than the road improvement district had. Hence the chancellor correctly held that the appellee- had a right to redeem, and the decree of the chancery court will therefore he affirmed.


author: Smith, J.

text:
    Parks v. Gray.
    Opinion delivered March 12, 1928.
    1. Mortgages — effect of prior sale. — One who takes a mortgage with notice that the mortgagor -had previously sold the mortgaged land, takes no title, though the mortgage was recorded before the deed.
    2. Equity — bill of review. — Where a decree has become final, and no error of law appears on the face of the record, the decree will not be subject to review in proceeding by a ibill of review.

      3. Equity — relief by bill of review. — Relief against a decree because against the preponderance of the evidence will not be ■granted in a proceeding by bill of review, which cannot be resorted to' as a substitute for appeal to bring up for decision questions as to preponderance of the evidence.
    Appeal from Logan Chancery Court, Northern District; J. V. Bourlcmd, Chancellor;
    reversed.

      W. L. Kincannon, for appellant.

      Holland & Holland, for appellee.
   Smith, J.

This is a proceeding hy bill of review to modify a decree of the Logan Chancery Court, Northern District, from a portion of which decree an appeal was prosecuted to this court. First National Bank of Paris v. Gray, 168 Ark. 12, 268 S. W. 616. In the decree thus sought to be reviewed the court had made the following findings of fact:

That on October 1, 1917, George Heim had conveyed to A. L. Gray a tract of land, containing 160 acres, for the consideration of $1,400, and that a balance of $795.30 was then due and evidenced by notes given for the purchase money, which were secured by-a vendor’s lien; that Heim had assigned these notes to H. Bollwig, then deceased, and the same were held by A. P. Niemier, as executor of Bollwig’s estate; that on February 13, 1920, A. L. Gray conveyed to J. M. Cauldwell a 160-acre tract of land, which included 40 acres of the land bought by Gray from Heim, for the consideration of $500 cash and five notes for $500 each, and that Gray had in due course assigned these notes to the First National Bank of Paris as collateral security for certain indebtedness due the bank; that on September 12, 1921, A. L. Gray had executed a mortgage to T. C. Gray, conveying 120 acres of the land sold Cauldwell by Gray, to secure the payment of a note for $1,000, due December 1, 1922; that on February 16, 1920, A. L. Gray conveyed to H. J. Pistole and H. Cowden a quarter-section of land for a cash consideration and six notes for $500 each, ¡and these notes were also indorsed by Gray to the bank. One hundred and twenty acres of the land conveyed by Gray to Pistole and Cowden were embraced in the deed from Heim to Gray, and the court held that this conveyance was subject to the vendor’s lien reserved by Heim for the balance of unpaid purchase money, as was also the 40 acres sold Cauldwell by Gray which was included in the deed from Heim to Gray.

The court declared a lien on the 120 and 40 acre tracts last mentioned in favor of Bollwig’s executor, and directed that these lands be sold in satisfaction of these liens. And, subject to the prior lien in favor of Heim, which Niemier, as executor, had acquired, it was decreed that the bank, as the holder of the purchase money notes given Gray by Pistole and Cowden and Cauldwell, had a lien upon the lands in partial payment of which the notes had been executed. It was iadjudged, however, that, inasmuch as the mortgage from A. L. Gray to T. C. Gray, securing the thousand-dollar indebtedness due from A. L. Gray to T. C. Gray, had been placed of record before the deed from Gray to Cauldwell had been recorded, Cauldwell had taken title subject to the mortgage lien. Sales of the lands were ordered, and it was decreed that, from the proceeds thereof, the indebtedness be paid in the order of priority as the same had been adjudged in the decree.

No objection appears to have been made by any one to this decree, except that it concludes with the following recital:

‘ ‘ To the findings of fact and declaration by the court that the defendant, T. C. Gray, is an innocent purchaser for value, without notice, and by reason of prior filing of his A. L. Gray mortgage to the filing of record of the A. L. Gray warranty deed to J. M. Cauldwell, held prior and a first lien to cross-plaintiff, First National Bank of Paris, Arkansas, at the time excepted, and prayed an appeal to the Supreme Court of Arkansas, which is granted, and 90 days given to file bill of exceptions.”

This appeal was duly prosecuted, and the only question presented for our decision on the appeal from this decree was the question whether the deed from A. L. Gray to Cauldwell was subject to the mortgage on the same land from A. L. Gray to T. C. Gray.

We reversed the portion of the decree appealed from. See Bank v. Gray, supra, in which case it was held (to quote the syllabus) that “the possession of a tenant or lessee is not only notice as against a subsequent mortgagee of all his rights and interest connected with or growing out of the tenancy or lease, but is ialso notice of all interests he may have acquired through subsequent or collateral agreements.” The necessary effect of this holding was to declare the mortgage from A. L. Gray to T. C. Gray invalid, for the reason that A. L. Gray had, prior to the execution of the mortgage, previously conveyed the land to Cauldwell.

G. W. Parks, as administrator of the estate of C. S. Parks, deceased, had intervened in this suit, and he alleged that, as administrator of the C. S. Parks estate, he was entitled to be subrogated to the bank’s collaterals after the bank had been paid in full, for the reason that his intestate had paid certain portions of the indebtedness due the bank from A. L. Gray, for which his intestate, C. S. Parks, Was- security to the bank for Gray. The relief prayed by the administrator was granted, and it was “ordered and decreed that the said G. W. Parks, as the administrator of the estate of the said C. S. Parks, deceased, be and is hereby subrogated to the rights of the said First National Bank to said notes, after the said First National Bank is paid in full.” This last adjudication was embraced in a separate decree, but both decrees were rendered at the same term of the court.

The opinion of this court on the appeal of the bank was delivered February 16, 1925, and’ thereafter the attorneys for T. C. Gray obtained from the court below permission to file a ‘ ‘ supplemental answer and a petition in the nature of a bill of review,’’’ in which it was alleged that there was an error of law apparent on the face of the record in subrogating G. W. Parks, administrator, to the rights of the bank to the notes pledged to the bank to secure indebtedness due tbe bank, it being alleged that C. S. Parks was neither the maker, surety nor indorser, nor in any other manner liable thereon or bound by the same, and it was denied that the said C. S. Parks had in fact paid anything thereon. It was further alleged that such sums as were paid by C. S. Parks had been paid on an indebtedness for the security of which the notes indorsed by Gray to the bank had not been pledged as collateral.

To this supplemental answer and petition a demurrer was filed, for the reasons: (1) “As a supplemental answer, it does not state fact or facts, and does not raise ¡any question that has not been adjudicated by this court; (2) as a bill of review, it does not state any new matter or facts or cause as will entitle this court to set aside the decree rendered herein on the 25th day of September, 19'23.” The demurrer was overruled, whereupon Parks, as administrator, filed an answer, setting up certain payments made by his intestate for Gray, which it was alleged the collateral notes secured.

The court appointed a receiver to take charge of the collateral notes and collect them, and to make a report thereof. The court also referred the testimony taken on these supplemental pleadings to a master, with directions to make findings of facts. This report was made, but exceptions were sustained to these findings. The master found that the mortgage lien claimed by T. C. Gray was void; that the five $500 notes of Cauldwell to A. L. Gray were the property of Gray, “subject to the orders of subrogation to the position of the bank to the extent of $2,589.65 judgment and accrued interest obtained on September 14, 1922, by said bank against A. L. Gray and G. W. Parks, administrator.” That said notes carry a reservation of title in A. L. Gray to the quarter section of land sold Cauldwell, and that Parks, as administrator, has a lien on said land by reason of “being subrogated to the position held by the First National Bank of Paris under assignment by A. L. Gray, for collateral security, subject to said sum due T. C. Gray for taxes advanced.” Gray having paid certain taxes, the master found that the amount thereof constituted a first lien on the land.

The master further found that the vendor’s lien on the Cauldwell land should be foreclosed, and that the proceeds of the sale and other assets in the hands of the receiver should be first applied to the payment of the costs of the suit; second, to reimburse T. C. Gray for taxes, paid; third, to the payment of any balance due the bank on the Gray Mercantile Company notes as security for which the Cauldwell notes had been pledged; fourth, to G. W. Parks, as administrator, in satisfaction of the judgment recovered against his intestate, “which judgment is the basis of the right of subrogation order heretofore made- by this court of equity; ’ ’ fifth, balance, if any, to be applied on the satisfaction of judgment rendered in this court in favor of T. C. Gray.

The decree denied the right of .subrogation as found by the master, and further found that the mortgage for a thousand dollars from A. L. Gray to T. C. Gray was a valid and subsisting lien, “subject, however, to any balance that may be remaining due the First National Bank of Paris.” The court found that this mortgage lien had been foreclosed by a commissioner appointed to make sale, and that T. C. Gray was the purchaser at this sale. It was ordered that this sale be approved, and that the commissioner execute his deed to T. C. Gray.

This decree must be .reversed, and it will be so ordered. As has been said, the necessary effect of the opinion of the court in the case of First National Bank of Paris v. Gray, supra, is to hold the mortgage from A. L. Gray to T. C. Gray void, for the reason that A. L. Gray had previously sold the mortgaged land to Cauldwell. No title could therefore have passed by this mortgage, and, upon the remand of this cause, a decree will be entered canceling it.

We are also of the opinion that the court was in error in reopening the question of the right of Parks, as administrator, to subrogation, as that question had been adjudicated in Ms favor in tbe portion of tbe original decree from which no appeal was ever prosecuted by any one. That decree therefore became and is final, and, as no error of law appears upon the face of the record in which that decree was entered, the decree was not subject to review in this proceeding.

It was held in the case of Rayburn v. Kirk, 134 Ark. 605, 204 S. W. 611, that a bill of review could not be resorted to as a substitute for an appeal to bring up for decision questions as to preponderance of evidence, it being there said:

“Of course, a proceeding by bill of review could, not be resorted to as a substitute for an appeal to bring before us for decision some question of the preponderance of evidence. "We could not decide in this proceeding, if we had the testimony heard at the former trial' before us, any question dependent upon a finding of preponderance of the testimony, for that was a proper question to raise by appeal.”

Parks, administrator, had prayed relief by subrogation in the original proceeding, and that relief had been granted, and the master found, on the resubmission of the question, that he was entitled to this relief. But, whether the preponderance of the evidence supports that finding or not, the right of subrogation was decreed on the original submission, by a decree from which no appeal was prosecuted, and relief against that finding, although it may not,.in fact, be supported by the preponderance of the evidence, cannot be granted in this proceeding. The report of the master should therefore have been approved, as it accords with the original decree of the court, and, upon the remand of the cause, a decree to that effect will be entered, and the funds herein involved will be distributed in accordance with the master’s findings.

The decree of the court below will therefore be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.


text:
    Lee v. Lee.
    Opinion delivered March 12, 1928.
    1. Marriage — duress.—Duress in the procurement of a marriage was shown where the father of the woman who gave birth to a child approached carrying a rifle and said plaintiff would have to give the baby a name, and plaintiff’s fears that he would be killed had he not consented to the marriage were well founded.
    2. Marriage — effect of duress. — Where plaintiff was approached by the father of the woman who gave birth to a child, and stated that plaintiff would have to give the child a name, and plaintiff’s fears that he would ibe killed had he not consented to a marriage were well founded, the fact that the woman whom he married was not cognizant of. the duress was immaterial.
    Appeal from Lafayette Chancery Court; J. T. Stevens, Chancellor;
    affirmed.

      Steve Carrigan, Allen H. Hamiter and Edwin Upton, for appellant.

      Searcy & Searcy, for appellee.
   Smith, J.

Appellant, Ida M'oncus Lee, gave birth to a child without being married, and, following its birth, she became delirious, and remained so for several days. Upon recovering consciousness she told her father, R. E. Moncus, that appellee, Fred Lee, was the father of the child. The following day Mr. Moncus took his rifle, and, accompanied by his son, Oce Monlcus, drove to the home of Jim McDaniel, who was his brother-in-law and an uncle of appellant. The three drove some miles in an automobile to Lewisville, to a garage where appellee was employed. Upon reaching the garage the three men left the car, and Mr. Moncus, with rifle in hand, walked up to appellee and told him that he had ruined his daughter, who had given birth to a child, and that he would have to go and give the baby a name. Appellee asked Mr. Moncus if his daughter had said that he was the father of the child, and Moncus replied that she had. Appellee then said, “I am ready.” No other conversation occurred between the parties, except that McDaniel had been crying, and said to appellee, “Grod damn you, I will kill you.”

E. T. Laster, who is a justice of the peace, testified that he observed that something unusual was happening, and that he went to the garage, and, upon arriving there, he said to Mr. Moncus, “Eichard, do not be rash; you have .enough trouble,” and Moncus answered, “Uncle Bob, I am not going to do any wrong; all I want is for Judge (a nickname by which appellee was known) to give that baby a name.”

As the parties got in the car, appellee said that he would like to change his clothes, and he was driven to the house where he roomed. Appellee’s nephew, Howard McClendon, was at the McClendon home when the party arrived, and appellee and McDaniel went to appellee’s room. Nothing was said while they were there, but McDaniel kept his hand in his bosom until they left. The services of a minister had been secured, without appellee’s knowledge or consent, and the minister was waiting at the office of the county clerk when the party arrived there. Appellee procured from the clerk a marriage license, and paid the fee therefor with a check drawn by himself. The party then entered the car, and drove twelve miles to the home of Mr. Moncus. Appellee was placed on the front seat, and Mr. Moncus, with his rifle, sat on the rear seat. When the party arrived at the home of Mr. Moncus, appellee said that he wanted to speak to appellant, and for about five minutes he was in the room with her alone, but during that time Mr. Moncus stood near the door with his rifle. McDaniel and Oce Moncus were present in the house.

Appellee told the minister that he was ready, and the party went into the room where appellant was lying in bed. The minister directed appellee to take appellant’s hand, and he did so, and the ceremony began, when the minister observed that appellee had released appellant’s hand, and he again told appellee to take her hand. When finally the minister asked appellee if he would take appellant as his wife, there was a perceptible pause, but appellee answered “I will.”

The minister testified that he was aware that an unusual ceremony was being performed. He saw Mr. Moncus had his rifle, but no demonstration was made with it. About fifteen minutes after the ceremony, appellee, without having any further conversation with his bride, asked to be carried back to town, and this request was complied with. Appellee did not pay the minister for his services, and was not asked to do so. Appellant testified that she had not seen appellee since the wedding.

Appellee brought this suit for divorce, alleging as ground therefor that he had married appellant under duress, and, in support of that allegation, offered the testimony set out above.

Appellant testified that she knew nothing of any duress, and that she supposed appellee had consented to marry her to right, in part, the wrong done her, as she also testified that appellee had seduced her'under a promise of marriage. The granting of the divorce was opposed upon the ground that there had been no duress.

Mr. Moncus testified that all he asked appellee to do was to give the baby a name, and that he had his rifle for the purpose only of defending himself in the event appellee assaulted him.

Mr. McDaniel admitted that he was armed, but he testified that was a deputy sheriff, and had his pistol because he had certain papers to serve, and that he went along to keep the peace. He admitted, however, that he went with appellee to appellee’s room, but stated that he did this because he did not know but that appellee would icome out with a gun, and he knew there would be bad times if he did so. He admitted cursing appellee at the garage, but said he did this because of his indignation, and that he did not threaten to kill appellee or to do him any violence.

The testimony did not show that either the gun was ever pointed at appellee or that McDaniel ever drew his pistol.

It appears that, when the party entered the automobile, the sheriff was standing by, and it is insisted that, if appellee was unwilling to marry appellant, lie liad only to call the sheriff for protection.

A decree was granted appellee, and for the reversal of that decree it is insisted that duress was not shown, and, if so, that appellant was not a party to it.

We think duress was very clearly shown. Appellee testified that he offered no 'protest, as he feared he would he killed had he done so, and we think his fears were well founded. From the testimony set out above it appears very highly probable that, if there had not been a wedding, there would have been a funeral. It may be true that appellant was not cognizant of the duress. Indeed, her physical condition at the time of the wedding strongly indicates that she was not, but it was not essential that she should have been.

In Nelson on Divorce and Separation, vol. 2, § 622, page 592, it is said:

“It is immaterial from what source the threats emanate, or who is the active instigator o'f the proceedings at law which constitute the duress. If others have so frightened the complainant that his consent is involuntarily given — ‘a yielding of his lips, but not of his mind’ — the marriage is voidable for want of consent. If the woman was ignorant of the actions of her friends in procuring his consent by duress, this would not render the marriage valid. The lack of consent is vital in all cases of duress, and therefore the complicity of the other party or her ignorance of the duress is immaterial.” See also Marks v. Crume (Ky.), 29 S. W. 436.

In the case of Honnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39, it was held that, if one, having seduced a woman, marries her through fear of the'natural- and probable consequences of his crime, it would not, in the absence of force or threats of bodily harm at the time, be such duress as would avoid the marriage, and appellant insists that the testimony here shows nothing more; but we do not concur in this contention. We think the testimony very clearly shows such duress as warranted the court below in finding that the marriage was not a voluntary act on the part of the appellee, and that there has been no subsequent ratification thereof on his part. Fowler v. Fowler, 13 Ala. 1088, 60 Sou. 694; Sheppard v. Sheppard, 174 Ky. 615, 192 S. W. 658; Marsh v. Whittington, 80 Miss. 400, 40 Sou. 326; Cooley’s Tiffany on Domestic Relations (3d ed.), page 13; Simmons v. Stevens, 132 La. 675, 61 Sou. 734; 1 Bishop on Marriage, Divorce and Separation, § 538, page 231; Bassett v. Bassett, 9 Bush (Ky.) 696; Willard v. Willard, 65 Tenn. 297, 32 Am. Rep. 529, 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6th ed.), § 1149, page 1408; 18 R. C. L., chapter Marriage, § 38.

The decree of the court below is therefore affirmed.


author: Humphreys, J.

text:
    Honea v. State.
    Opinion delivered March 12, 1928.
    1. Gaming — evidence.—In a prosecution for gaming by playing poker, the sheriff’s testimony as to the similarity as to arrangement and equipment in the boat where the raid took place and other poker games which he had raided, held .admissible.
    2. Criminal law — repetition op instructions. — Refusal of the court to give requested instructions was not error, where the instructions were fully covered by the instruction given.
    3. Criminal law — abstract instructions. — A requested instruction to disregard whatever knowledge the jury had, or whatever proof had been introduced concerning defendants’ character, was properly refused where there was no testimony in the record concerning their bad character.
    .Appeal from Crawford Circuit Court; J. O. Kin-cannon, Judge;
    affirmed.

      C. M. Wofford, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee:
   Humphreys, J.

Appellants were arrested for gaming, upon information of the prosecuting attorney, filed before a justice of the peace in Crawford County. The information charged them with unlawfully and willfully betting the sum of one dollar in a certain game of hazard and skill with cards, and commonly called poker. They were fined $10 each, and appealed to the circuit court, where, upon a trial de novo, they were again convicted, and fined $10 each, from which is this appeal.

Their first assignment of error for a reversal of the judgment is that the evidence was insufficient to sustain the verdict and judgment. The sheriff and one of his deputies had observed a number of 'boys frequenting a houseboat on the river, to the right of a little island in said county. He and one of his deputies entered the boat to ascertain the cause. As they entered, Albert Honea saw the sheriff, snapped his fingers at the other boys, and said two or three times, “Let’s go. to town.” The boys were shuffling around, and one of them threw a deck of cards into the river. Others were putting money into their pockets. The sheriff found two or three unopened decks of cards on a shelf in the boat. Albert Honea asked the sheriff who had tipped them off.

Over the objection and exception of appellant, the prosecuting attorney was permitted to ask the sheriff whether the arrangement and equipment in the boat were the same he had found when he had raided other poker games. The sheriff answered that they were identical. The admission of this testimony is urged as a ground for reversal of the judgment. We think the testimony of the sheriff was admissible as to the similarity of the paraphernalia in the boat to that he had discovered when he raided other poker games.

This testimony, together with the circumstances detailed above, was substantial evidence tending to show that appellants were guilty of playing poker,, contrary to the statute inhibiting same.

Appellant also assigns as reversible error the refusal of the court to give- instructions numbered 1, 2 and 3 requested by him. Instructions 1 and 2 are fully covered by the court in instruction No. 5. There was no testimony introduced concerning the bad character, of appellants, so requested instruction No. 3, telling the jury to disregard whatever knowledge they had or whatever proof had been introduced relative to the character of appellants, had no place in the case, and was properly refused.

No error appearing, the judgment is affirmed.


text:
    J. H. Phipps Lumber Company v. Phipps.
    Opinion delivered March 12, 1928.
    1. Corporations — power to lease or sell land. — A corporation which was authorized to 'buy timber lands had the inherent power to lease of sell such lands, although no such provision was contained in its charter.
    2. Corporations — authority op president to make contracts. — • In an action ag’ainst a corporation for breach of a contract for lease and option of certain lands, the question whether the president of the corporation, who owned the majority of the stock and dominated the corporation, acted as agent for it in making the contract of lease and option, held for the jury.
    3. Corporations — evidence as to contract. — In an action against a corporation for breach of a contract for lease and option of lands entered into by the corporation through its president, testimony as to .the contract and its terms was properly admitted, where there was testimony from which the authority of the president to act as agent of the corporation could be implied and tending to show a subsequent ratification of the contract by accepting benefits from it.
    4. Evidence — value op lumber. — In an action for breach of a contract for lease and option by a sale of land to another, whereby plaintiff was denied the right to remove improvements, testimony as to the original bill of lumber used by plaintiff in constructing a house was admissible as a basis for estimating the value thereof as second-hand lumber in the knockdowii.
    5. Evidence — breach of contract. — In an action for breach of a contract for the lease and option of land by sale of the land to the government, which prohibited plaintiff from removing improvements, a letter from the government inspector directing plaintiff not to remove such improvements held properly admitted as a circumstance tending to show a breach of the contract.
    6. Corporations — instruction on ratification. — In ah action against a corporation for alleged breach of a contract, evidence that the corporation accepted benefits under the contract was sufficient to authorize a court to instruct a jury upon the law of ratification.
    7. Venue — action for breach of contract. — An action for breach of a contract for the lease and option to buy land is transitory and not local, and was properly brought in the county of defendant’s domicile, rather than in the county where .the land is situated.
    Appeal from Washington Circuit Court; J. S. Maples, Judge;
    affirmed.

      J. W. Grabiel and W. N. Ivie, for appellant.

      Walker & Walker, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in £he circuit court of Washington County for ■$2,500 damages on account of the alleged breach of a contract for lease and option to appellee by appellant of certain lands in Franklin County, Arkansas, when it got ready to sell same, and, if appellee should not then desire to purchase said lands, that he should have the right to remove such improvements as he had made thereon.

Appellant filed an answer, denying the material allegations in the complaint.

The cause was submitted upon the pleadings, testimony introduced by the respective parties, and the instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for $700, from which is this appeal.

According to the undisputed testimony, appellant is a domestic business corporation, and in 1919 owned 9,000 acres of timber land in Franldin County. It was engaged in the hardwood lumber business, railroad and mercantile business, the two latter being incidental to the manufacture of hardwoods for the market. Jay Fulbright was its president, and J. H. Phipps its vice presir dent and manager. Jay Fulbright controlled a majority of the stock, and dominated the corporation. In the fall of 1919 Fulbright, acting for the corporation, but without any express authority under charter or specially delegated to him by the board of directors, entered into a contract of lease and option to appellee of about one hundred acres of said land, with the privilege to appellee to remove his improvements off the land if he should not choose to buy same when appellant decided to sell its lands, or this particular land. The directors and officers of appellant knew of the contract, but never approved it in a formal way. The minutes of the meeting’s of the board are silent on the matter, and the.directors and officers who testified in the case had no recollec-. tion of the matter ever having been reported to the board or acted upon by them. Appellee testified that he talked to some of the directors about it, but made no formal report to the board relative to the contract or its terms. He said that, in making the contract, he regarded and treated Pulbright as the corporation itself.

Pursuant to the agreement between Fulbright and appellee, he built a house upon the land, which cost $2,000, and built a hog-proof wire fence around same at an expense of $500. The improvements were completed in the spring of 1920, and appellee’s son moved on the property to farm it and look after the hogs and herd of cattle, wdiich appellee bought from Pulbright. At the expiration of two years appellee’s son moved away, and the house was unoccupied most of the time prior to the purchase of the land, in 19'24, by the United States Government, from appellant. The Government purchased said tract of over 9,000 acres from appellant for forest reserve purposes, at $2.75 per acre, and refused to allow appellee to remove his improvements. This sale was made after Jay Pulbright died, and after he was succeeded as president of appellant by his son, Jack Pulbright. When appellee heard of the sale to the Government, he consulted Jack Pulbright with reference to removing his improvements, and was informed that he would have to take the matter up with the United States Government. He did so, and was notified by the United States Government not to remove the improvements.

The original charter conferred authority upon it to purchase, lease and sell real estate. The charter, as amended in 1913, authorized the purchase of real estate, hut contained no provision authorizing it to lease or sell same.

Learned attorneys for the respective parties differ in their interpretation of the testimony relative to the agreement to pay rent for the land upon which the improvements were made. Appellants’ attorneys interpret the evidence to mean that the agreement to pay rent was a separate contract, and wholly disconnected from and not growing out of the contract of lease and option made between Fulbright and .appellee; whereas appellee’s attorney interprets the evidence as meaning that the agreement was to pay $100 per year for the use of the land as a part of the lease and option contract. The testimony shows, without dispute, that the rent was paid directly to appellant corporation for two years, 1920 and 1921, during which time appellee occupied and used the house and land which he had fenced. Appellee testified, on page 37 of the transcript, that he paid rent in 1920 and 1921, in connection with his statement that his son moved out of the house after occupying it two years.

Mr. Jeter, who was in charge of appellant’s mills, and who was interested in the corporation, testified, on page 50 of the transcript, relative to the lease and option contract made hy Fulbright and appellee at Combs, as follows :

“Q. Mr. Jeter, was there anything said in that conversation as to how much land Mr. Phipps was to rent or use? A. "Well, I do not know that there was any more than to use all there was in that country for grazing purposes; he had that privilege from the company. Q. Was there anything said in that conversation about Mr. Phipps paying rent? A. I do not remember as to that. Q. You do not remember as to that? A. No, that was settled, I think, in the office here; however, I understand that he did pay rent. Q. Do yon know whether Mr. Phipps paid rent at the rate of $100 a year? A. That is my understanding that he did.’"’

Appellant’s first contention for a reversal of the judgment is that the court should have instructed a verdict in its favor, under the undisputed facts in the case. It requested a peremptory instruction, which the court refused, over its objection and exception. It argues that-the contract was in excess of the charter powers, and ultra vires, because the amended charter of 1913 did not authorize the corporation to lease or sell its real estate. The amended charter authorized it to purchase and hold real estate in connection with its business. The charter, prior to being amended, authorized it to lease and sell its real estate. This provision was omitted from its amended charter. Although omitted from the charter, the power was inherent in the corporation to lease or sell its real estate which it bought in connection with its business; else how could it realize on its assets? Especially is this true of lumber concerns, which buy large tracts of timber land to obtain raw material for manufacturing the lumber. It would be indeed a strange doctrine that such corporations could not dispose of their cut-over lands or could not lease them for agricultural purposes, simply because express authority was not conferred in their charters.

We cannot agree with appellant’s contention that the contract was ultra vires. It argues, however, that the president of the corporation had no right to make the contract without authority conferred by charter or by the board of directors. It is true that the general inherent power of a president of a corporation does not include the authority to make contracts for the corporation, but this cause .was sent to the jury upon th’e theory that the president, Jay Fulbright, had authority to lease and option the lands on account of holding a majority of the stock and dominating the business affairs of the corporation. The issues 'submitted to the jury were whether Fulbright had implied authority to act for the corporation, by virtue of owning most of the stock and being permitted to dominate its affairs, and whether the corporation was bound under the contract by accepting benefits under it. Tbe testimony tended to show that the corporation was a one-man corporation, being controlled and dominated by its president, who was also the owner of most of the stock, and also tended to show that the corporation," through its officers and directors, accepted rents for the use of the land, and subsequently sold same to the United States without reserving the improvements for removal by appellee. The improvements were substantial and valuable. The inference may have been drawn by the jury that these ■improvements enhanced the value of the land and that appellant received benefits from them in the sale thereof. It is true that, it does not affirmatively appear in the record that the Grovernment and appellant took the improvements into consideration in agreeing upon the purchase price, yet the Grovernment refused to allow the improvements to be removed, and appellant did not reserve them when it sold the land. In the state of the record the jury may have concluded that the agreement to pay rent of $100 a year was a part of the consideration for the lease and option contract. .If so, then the corporation received $200 in rents on account of the lease and option. Certainly appellee would not have paid $200 for the purpose of grazing cattle and hogs on open or range land owned by the corporation, when .he or any one else could have let his stock run at large on the land without paying anything for the privilege; but, to say the least of it, the issue was one for the jury.

Appellant contends for a reversal of the judgment because Phipps and Jeter were permitted to testify relative to the contract and terms thereof without first showing that Jay Pul'bright had express authority to act for the corporation. The testimony of both was admissible, because testimony was- introduced from which such authority might be implied, and because there was testimony tending to show a subsequent ratification of the contract by receiving benefits therefrom or thereunder.

Appellant also contends for a reversal of the judgment because' appellee and his witness, Duncan, were permitted to testify to a bill of lumber bought from T. J. Gillstrap Lumber Company and to identify and introduce the bill of lumber as an exhibit, which lumber was used in the construction of the house. This bill of lumber amounted to $557.21. It was admissible to introduce the original bill of lumber used in the house as a basis for estimating the value thereof as second-hand lumber in the knockdown.

Appellant also insists upon reversal of the judgment because appellee was'permitted to testify relative to receiving a notice or letter from the Government inspector at Russellville in 1924, directing him not to remove the improvements. The basis of the suit was the refusal of appellant to allow appellee to remove the improvements, and appellee was told by appellant’s president to take the matter up with the United State Government, to whom it had sold the land. This piece of evidence was a circumstance to show a breach of the contract, and was clearly admissible, the notice and letter purporting to come from a representative of the United States Government.

Appellant also contends for a reversal of the judgment because the court gave instruction No. 1. The objection urged to the- instruction is that it assumed that Fulbright acted as agent for the corporation in making a contract of lease and option with appellee. It does not assume agency. It submitted that issue to the jury, and properly so, for testimony was introduced in the case tending to show that Fulbright owned and dominated the corporation, in which event the jury might have drawn a reasonable inference that he was acting for the corporation.

Appellant also contends for a reversal of the judgment because the court instructed the jury upon the law of ratification and the refusal to give its requested instructions because they omitted any reference to the law of ratification. The argument is made that no evidence was introduced tending to show a ratification of the contract toy the corporation. We think there was. The testimony tended to show that the corporation accepted benefits under the contract. Appellant pleaded the statute of frauds as a defense to the action, and contends for a reversal of the judgment because the contract had relation to the lease and sale of lands, and, to be binding, should have been written. The contract was partially performed, which removed it from the operation of the statute of frauds.

Appellant also contends for a reversal of the judgment upon the ground that the circuit court of Washington 'County had no jurisdiction to try the cause of action. It is argued that the action is local, and should have been brought where the land is situated. This is not a suit for specific performance of the contract, but for a breach of contract for lease and option to buy, and is transitory and not local. The Arkansas domicile of the corporation is in Fayetteville, hence the suit was properly 'brought in Washington County, of which Fayetteville is the county seat.

There being no reversible error in the record, the judgment is affirmed.


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    Etheridge v. Bird Brothers.
    Opinion delivered March 12, 1928.
    Landlord and tenant — lien for advances. — Under Crawford & Moses’ Dig., § 6890, a landlord is not entitled to a lien on his tenant’s crop for money advanced to make a pleasure trip.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      J. A. Eades, for appellant.

      Strait & Strait, for appellee.
   McHaney, J.

Appellees, plaintiffs below, brought this suit in the justice court against appellant and one Melvin Mitchell, tenant of appellant, to recover $45.63 alleged to be due on an account for merchandise furnished by appellees to Mitchell., An order of general attachment was issued out of the justice court, and three bales of cotton seized. Appellant gave a forthcoming bond for the attached cotton. It was agreed that Mitchell had turned over to appellant, his landlord, his crop,including the attached cotton, in settlement of his indebtedness to appellant, and that this crop was in possession of appellant at the time of .filing the suit. A writ of garnishment was also issued and served upon appellant upon the usual allegations and interrogatories. On the day of trial Mitchell made default, but appellant appeared and defended his right to the property. Judgment was rendered in the justice court against both defendants, and the attachment and garnishment sustained. An appeal was prosecuted by appellant only, to the circuit court, and, at the conclusion of the testimony, a verdict was instructed against appellant, Etheridge, and he has appealed.

It is first contended for a reversal of the case that, since Mitchell was the tenant of appellant during the year 1925, and was indebted to him in excess of the value of the crop produced, lacking $23.30 of paying appellant’s account, he had a prior lien for the amounts furnished by him to Mitchell. It is shown that appellant had an account against Mitchell amounting to $331.83, which began January 1, 1925, and terminated October 10, 1925. In the account filed by appellant there is one item of $60 cash advanced, and it is agreed that this $60 was furnished Mitchell by appellant to make a pleasure trip to visit his kinsfolk in Oklahoma. This being the fact, appellant had no lien on the crop for this item The advances covered by the statute, § 6890, C. & M. Digest, for which the landlord has a lien, must be made to enable his tenant to make and gather the crop, therefore the lien given by the statute did not attach to the crop in favor of appellant as to this item, and, although the crop had been turned over to appellant at the time the suit was brought, the lien of the attachment was ahead of appellant’s claim for this item. Since, as we have already seen, the attachment lien was superior to appellant’s claim with reference to this $60 item, and since this amount is more than sufficient to cover appellee’s debt, we do not decide the other questions raised in the brief, including the question of usury, in appellant’s account with Mitchell.

The judgment of the circuit court directing a verdict against appellant was therefore correct, and it is accordingly affirmed.


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    Dozier v. Missouri Pacific Railroad Company.
    Opinion delivered March 12, 1928.
    1. Master and servant — contributory negligence — assumed risk. —In an action for personal injuries under the Federal Employ-, ers’ Liability Act, a section foreman operating a motor car, who violated the railroad’s rules hy failing to put out a flag to signal trains, to get a line-up from the station agent on all overdue or extra trains, or to maintain a lookout at the time of collision with an extra train, held as matter of law to have assumed the risk of injury and to have been guilty of negligence, which alone caused the injury.
    2. Master and servant — contributory negligence. — Under the Federal Employers’ Liability Act, there can be no recovery when the employer is guilty of no negligence, and the injuries result solely from the negligence of the employee.
    Appeal from Marion Circuit Court; J. F. Koone, Judge;
    affirmed.

      J. H. Black, for appellant.
   McHaney, J.

Appellant brought this action under the Federal Employers’ Liability Act to recover damages for personal injuries received by him early in the morning of October 12, 1925, while working for appellee in the capacity of section foreman, at or near Buffalo, Arkansas. Appellant was an experienced section man, having been employed by appellee in such capacity for eight years, six of which he had been its foreman, and had never had an accident.

On the.morning of October 12, about 8 o’clock, he took his motor-car from the tool-house, with a helper, to go over the track on his section, to ascertain if there were any washouts or obstructions on the track, a heavy rain having fallen, which was still continuing at the time. The motor on his car was operating badly on account of the rain, and it was necessary for his helper to push the car a distance before it started to run. He had gone only a short distance when he had a head-on collision with another motor-car operated by appellee’s superintendent, receiving severe and-painful personal injuries. The superintendent’s car was much larger than the section foreman’s car, and could not be removed from the track, as could appellant’s car. On this account the superintendent’s ear was operated under orders of the dispatcher, and, on this particular morning, was running as an extra, just as if it had been a train. The collision occurred on a sharp curve. Appellee had a rule applicable to appellant, to the effect that he should expect trains at any time, without warning or notice, and from any direction, and, in order to protect himself, to put out ¡a flag each way, in front and behind. This rule was not complied with. Appellant admitted also that he did not get a line-up, that is, that he did not go to the station agent at the station of Buffalo and get a line-up on all trains overdue or any extra trains. Appellee had a rule that required this to be done when practicable. Appellant says he did not comply with this rule for the reason that the station agent was always late, and went on duty at 8:30, ¡although the station agent lived in the depot at Buffalo, from whom he could have got a line-up on all trains, including the superintendent’s motor-car running as an ¿xtra train, if he had asked for it, as it is not disputed that the station agent always had train orders by 8 o’clock in the morning. Rule 148 also provides that all hand and motor-cars must be run with care and caution, carefully protected by signals when necessary, and must not be used on main track in foggy weather, and requires the keeping of a constant lookout for trains while such hand and motor-cars are being operated. Said rule further requires that the foreman or man in charge shall stop and send flagmen ahead around all obscure curves to prevent the possibility of colliding with trains or other motor-cars.

Appellant frankly admits that he violated all these rules, but contends that it was not practicable under the circumstances. He admits that he did not keep a lookout and did not .see the car in which the superintendent was traveling until he was within five or six feet of it, for the reason that he had his head down, adjusting the needle-valve on the carburetor in order to adjust same so that it would hit regularly. Neither appellant nor his assistant was keeping a lookout, and. the assistant says that the superintendent’s car had slowed up and was not running over ten miles an hour at the time of the collision. Under this state of the evidence, without setting out more of it, the court directed a verdict against appellant, and he has appealed.

We think the court was correct in directing this verdict. The undisputed evidence shows that there was no negligence on the part of appellee in the operation of the car in which the superintendent was riding. On the other hand, the proof shows conclusively that appellant was guilty of the grossest kind of negligence in the operation of his motor-car, in violation of every rule on the subject; and, in taking the car.out and in leaving the station without getting a line-up, as the witnesses call it, giving him all information concerning movement of trains or motor-ears operated under orders over his section, he assumed the risk of any injury he might receive by reason thereof. There was no negligence in the operation of the car of the superintendent, as it was being operated under orders of the dispatcher, just as a train, and, by calling at the station in Buffalo, appellant would have known of the movement of this car as an extra over his section.

While it is true, under the employers’ liability act, contributory negligence is not a complete .defense, assumption of risk is, and, when the employer is guilty of no negligence and the injuries result solely from the act or negligence of the employee, there can be no recovery.

No error appearing, the judgment is affirmed.


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    Conley v. State.
    Opinion delivered March 19, 1928.
    1. Intoxicating liquors — possessing still — evidence.—Evidence held to sustain a conviction of possession a still.
    2. Intoxicating liquors — admissibility of evidence. — Where defendant and his wife were found near a still, it was not error to admit in evidence a fragment of goods which matched the wife’s dress, found among the rags apparently used in wiping out the still, since the jury could infer that the fragment was SO' used by appellant because it was a piece of his wife’s dress goods.
    3. Witnesses — competency of wife. — In a prosecution for possessing a still, where a fragment of cloth which matched the defendant’s wife’s dress was found among the rags at a still, and was apparently used to wipe the still, it was not error to refuse to permit defendant’s wife to testify that such fragment did not come from her dress, and that tracks leading from the still were not -her tracks, since she was not a competent witness for or against her husband.
    4. Witnesses — competency of wife. — Crawford & Moses’ Dig., § 6178, providing that no one ¡shall be excused from testifying in prosecutions for violating the act relating to intoxicating liquor, held not to change or repeal the rule regarding exclusion of testimony of the husband or wife for or against each other.
    5. Criminal law: — instructions.—In a prosecution for possessing a still, refusal of defendant’s instruction that, before the jury could convict, all facts and circumstances must together be inconsistent with any reasonable hypothesis except that of guilt, was not error, where the court instructed on reasonable doubt and presumption of innocence, and stated that the jury must find beyond reasonable doubt that the defendant owned the still or exercised control over it, before he can be convicted.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    affirmed.

      Pratt P. Bacon, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, C. J.

L. A. Conley prosecutes this appeal to reverse a judgment of conviction against him for the statutory crime of possessing a still.

The first assignment of error is that the evidence is not legally sufficient to support the verdict. According to the evidence for the State, two Federal prohibition agents met L. A. Conley and his wife on the main road, just before they got to Boyd, in Miller County, Arkansas. It was late in the evening, and the Conleys were going towards home. There had been no other cars along the road, and the prohibition agents backtracked the car of the Conleys, or followed its tracks .back to where it had come from. Where the car had stopped there was a turn-around which had been used in turning the car around on other occasions. Near where the car had been stopped and turned around the officers found a complete two-hundred-gallon copper still with a 3-ply 16-foot copper worm. The worm was lying in a branch near by, and the branch had been dammed up. The still was complete except for the cap. The officers returned to the place on the next morning and discovered L. A. Conley and his wife within 15 or 20 feet of the still. They approached them and arrested them when they had got about 50 yards or more away from the still. The officers found that the still had just been wiped out with some rags. Among the rags they found a piece of cloth that matched the dress of Mrs. Conley. They followed a woman’s tracks leading from the. still, and found a cap which just fitted the still. They went back to the Conleys ’ house, and found some sheet copper under it. They also found a workbench in some open woods about 50 yards from his house, and on it were some pieces of sheet copper. About 16 barrels of mash were found by the officers at the still, and the still had been wiped out, evidently for the purpose of making a run. This evidence was legally sufficient to support a verdict of guilty.

It is true that, according to the evidence for the defendant, he and his wife were hunting work, and did not own the still or have it in their possession. The jury, however, were the judges of the credibility of the witnesses, and might have believed, under the attendant circumstances, that the defendant was in possession of the still. He was seen by the officers going from the direction where the still was found, late one evening, and his car tracks led to a place near the still, and the ground indicated that the car had been turned around there several times. Early the next morning the defendant and his wife were found within 15 or 20 feet of the still, and a piece of goods which matched his wife’s dress was found among some rags which appeared to have been used in wiping out the still.

■Counsel for the defendants claim that it was prejudicial error to admit as evidence testimony to the effect that the piece of goods found near the still appeared to have been a piece of his wife’s dress. We do not think so. This was evidence of a substantive fact, and the jury might have inferred, from the fact that the piece of dress goods was found among other rags which had been used by some one in wiping out the still, that it was so used by the defendant, for the reason that it was a piece of the dress goods of his wife.

It is next contended that it was error for the court to refuse to permit the defendant’s wife to testify that the piece of cloth did not come off her dress, and that the tracks leading from the still to the place where the cap was found were not her tracks. The wife was not a competent witness for or against her husband, and there was no error in excluding her evidence from the jury. Woodard v. State, 84 Ark. 119, 104 S. W. 1109; Padgett v. State, 125 Ark. 471, 188 S. W. 1158; and Gin Fuey Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. ed. 214.

But it is claimed that the general rule has been ■changed by % 6178 of Crawford & Moses’Digest, which provides:

“No'person shall be excused from testifving before the grand jury or on the trial in any prosecution for any violation of this act; but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”

This act was passed by the Legislature of 1917, and Was part of an act prohibiting the shipment of intoxicating liquors into the State and the transporting of the- same within the State, and for other purposes regulating and prohibiting the sale and storage of intoxicating liquors. It was not intended to repeal, change or alter the rule with regard to the admission or exclusion of the testimony of husband and wife for or against each other. The purpose of the statute was simply to prevent the testimony given on any prosecution for a violation of the act from being used against the person giving it in any criminal trial which involved the matters disclosed. Hence we hold this assignment of error is not well taken.

It is next contended that the court erred in refusing to give instructions Nos. 5 and 9 asked by the defendant. Instruction No. 5 in effect told the jury that, before it could convict the defendant, it must find from the evidence, beyond a reasonable doubt, that the defendant was present when the crime was committed, and had the still in his possession. In other instructions given by the court the jury was told that, if it should find from the evidence, beyond a reasonable doubt, that the defendant, in Miller County, Arkansas, at any time within three years before the indictment was returned, had in his possession a still, it would be its duty to convict the defendant. Thus it will be seen that the matters embraced in instruction No. 5 were contained in the instructions given by the court.

In instruction No. 9, requested by the defendant, the jury was asked to be instructed that, before it could convict the defendant, all the facts and circumstances considered together must be inconsistent with anv reasonable hypothesis except that be is guilty. The court instructed the jury fully and fairly on the question of reasonable doubt and the presumption of innocence which accompanies the defendant throughout the trial, and expressly told the jury that it must 'find, beyond a reasonable doubt, that the defendant was the owner of the still, or exercised control over it, before he could be convicted. This was sufficient. Bost v. State, 140 Ark. 254, 215 S. W. 615.

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


author: Hart, C. J.,

text:
    Fears v. Farmers' & Merchants' Bank.
    Opinion delivered March 19, 1928.
    1. Equity — when decree premature. — Since a cause does not stand for trial in equity until 90 days after issues joined, it was error in a suit to cancel a conveyance by a debtor to his children alleged to be in fraud of creditors to enter a decree on pleadings on the same day the answer of the guardian ad litem for the minor defendants was filed.
    2. Appeal and error — premature decree prejudicial when. — In a suit to cancel a conveyance by a debtor to his children as in fraud of creditors, it was error to enter a decree against minor defendants on the day on which their answer was filed, no proof having been taken in the case.
    3. Appeal and error — parties to appeal. — Where, in a suit to set aside a conveyance as in fraud of creditors, defendants had a common defense, and the prayer of appeal was in general terms and for defendants generally, without limiting it to individual defendants, the appeal must be deemed as taken for all.
    Appeal from Baxter -Chancery Court; A. S. Irby, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    Appellees brought this suit in equity against appellants to recover judgment for the balance due on certain promissory notes and to cancel a conveyance by J. H. Cunningham, one of the appellants, to his children, other appellants, to certain lands as having been made in fraud of their rights as creditors. The complaint alleges that said conveyance was made with the intent of defrauding appellees in the collection of their debts, and that the consideration recited in it is the sum of one dollar and the love and affection he has for the grantees, who are his heirs at law.

      Some of the appellants are adults, and some of them are minors. The appellants who signed the notes sued on denied that the conveyance was made with the intent of defrauding appellees in the collection of their debts. They denied that appellants who signed the notes with J. H. Cunningham had no property out of which the notes might be collected. A guardian ad litem was appointed for the infant appellants, and he- filed an answer for them, in which all the allegations of the complaint were denied. , ■. (
    The complaint was filed on the 21st of February, 1927, and the answer of the guardian ad litem for the minor defendants, who are appellants, was filed on May 7,1927; and on the same day the chancery court rendered a decree for the respective amounts due appellees by appellants, as shown by the complaint, and it was further decreed that the deed executed by J. H. Cunningham, conveying the land in question to his children, was fraudulent as to appellees, who were his creditors, and that the same should be set aside.
    On the 6th' day of October, 1927, an appeal was granted upon a prayer for appeal, which is as follows:
    “Come the defendants by their attorney, J. H. Black, and pray the clerk of the Supreme Court of Arkansas for an appeal herein. This the 4th day of October, 1927. ’ ’

      J. H. Black, for appellant.

      Dyer & Dyer, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellants ask for a reversal of the decree upon the authority of Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654, where it was held that a cause does not stand for trial in equity until ninety days after issues joined, and that a decree prematurely rendered will be set aside on appeal. That case controls here. A decree was entered upon the pleadings upon the same day the answer of the guardian ad litem for the minor defendants was filed.

It is conceded by counsel for appellees that the decree was prematurely rendered, but they insist that the error was harmless, for the reason that the answer tendered no defense. Some of the appellants who were defendants in the chancery court were minors, and it was the duty of the guardian ad litem to deny all the allegations of the complaint and to require strict proof thereof. The guardian ad litem did file an answer denying the allegations of the complaint, but no proof was ever taken in the case, and a decree was entered before the minor defendants had any opportunity to take proof. In this connection it may also be stated that it was taken within ninety days after the 'adult defendants had filed an answer.

The prayer of appeal has been copied above, and purports to pray gn appeal for all the defendants by their attorney. The language of the prayer for appeal does not limit it to any defendant, as was the case in Camden National Bank v. Donaghey, 145 Ark. 529, 237 S. W. 457. Appellants all had a common defense, and the prayer for appeal, being* in general terms and for the defendants generally, without limiting* it to any individual defendant or defendants, the appeal must be deemed as taken for all.

The result of our views is that the decree must be reversed, because it was prematurely rendered, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.