author: Smith. J.

text:
    American Investment Company v. Wardlow.
    Opinion delivered June 15, 1925.
    Mortgage — priority oyer vendors’ lien.- — Where vendors, in consummation o-f a contract for -the exchange o-f land, gave a warranty deed to enable a loan to be made thereon, and the mortgage company which subsequently made the loan knew that the vendors had conveyed for that purpose, and were not relying upon their vendors’ lien, although it knew that the ptrehase money had not been paid, held that the vendors were estopped to claim that their lien was superior to that of the mortgage.
    Appeal from Benton Chancery Court; 8am Williams, Chancellor;
    reversed.

      McGill & McGill, for appellant.

      Floyd (& Beasley, for appellee.
   Smith. J.

T). D. Wardlow, owned a 77-acre tract of land in Benton County, Arkansas, and in the spring of 1922 he and his wife went to Hidalgo County, Texas, on an excursion train conducted by T. W. McÑear, Jr., and a Mrs. Sands, who were the agents of the United Farms Company, a corporation engaged in selling real estate in Texas. The Wardlows were shown, upon their arrival in Texas, a farm of 22.61 acres, which they contracted to buy at the price of $450 per acre, which totaled $10,174.50. They executed a note for $7,700 and another for $474.50, both payable on demand, and agreed to pay the $2,000 balance of the purchase price by assuming the payment of vendor’s lien notes for that amount, payable in five equal installments, against the Texas lands.

By the terms of the contract of sale the farms company agreed that, on or before May 1, 1922, or within a reasonable time thereafter, it would deliver to Wardlow a warranty deed of date February 8, 1922, to the 22.61 acres, with an abstract showing a good and merchantable title, the same to be passed upon by any reputable licensed attorney in the lower Bio G-rande valley, and a reasonable time was to be allowed the farms company to meet and answer any requirements made by the examiner in regard to the title.

The contract of sale provided that the farms company should have the right at any time within fifteen days to inspect and reject the Benton County land in lieu of the $7,700 cash payment, and, if the land were rejected as the payment, the contract was to be treated as canceled and all papers relating to the deal were to be returned. If and when consummated, Wardlow was to be entitled to the landlord’s share of the crop then growing on the Texas land* and the landlord’s share of the crop on the Arkansas land was to go to the farms company.

McNear and Mrs. Sands returned with Wardlow and his wife to this State, and on February 11, 1922, they went to Wardlow’s house to inspect the 77 acres. They took with them E. W. Ford, of Siloam Springs, to take the acknowledgment of Wardlow and his wife to a deed for the 77 acres. Ford was a notary public and the agent for procuring loans of the American Investment Company, of Oklahoma City, Oklahoma.

The land was inspected and accepted by McNear, and he directed Wardlow and wife to execute and deliver to him a warranty deed, in which one J. B. Lamerre was named as grantee, and this deed recited a consideration of $3,000. Wardlow testified that the deed was made to Lamerre, instead of the farms company, for the reason that McNear explained that it was better to have the title in the name of an individual so that they could more easily procure a loan on the land and pay off the vendor’s lien on the Texas land, which was stated to be $2,000. Wardlow further testified that McNear agreed that he would take the deed and the contract to Kansas City and have them approved by the farms company, and that not more than thirty days would be required for that purpose, after which the farms company would pay off the lien on the Texas land and send Wardlow a deed to the Texas land and an abstract of the title thereto. Upon the execution of the deed by Wardlow to Lamerre, McNear surrendered to Wardlow the $7,700 note.

Soon afterwards the farms company wrote Ward-low requesting payment of the note for $474.50, and on Feburary 27 Wardlow remitted to cover this note, which was returned to him marked paid on March 8.

In the meantime Wardlow went to Kansas City to see if he could get the farms company to rescind the contract of sale, but that company declined to do so. Wardlow then announced his willingness to proceed with the contract and asked that it be completed at once and advised the farms company that he could get the money to pay the $2,000 note, but was advised that the company was arranging to make a loan with the Benton Countv land as security to pay off the vendor’s lien notes against the Texas property.

The testimony establishes the fact that the proceeds of the mortgage loan, application for which had been made in the .name of Lamerre, was to be applied to the satisfaction of the outstanding vendor’s lien on the Texas land, which was represented to be $2,000 but which proved to be something over $3,000 with the interest and costs of the foreclosure proceeding which was had in Texas to enforce that lien. This proceeding in Texas appears to have resulted from the delay in discharging that lien.

We think the testimony supports the appellees’ contention that the mortgage company knew that the Ward-lows had conveyed to Lamerre for the purpose of obtaining money to apply on the vendor’s lien on the Texas land, and that the consideration of $3,000 recited in the deed from the Wardlows to Lamerre had not in fact been paid. For some reason, which is not made plain, Lamerre conveyed to Mrs. B. W. McNear, and the loan was finally made to her. This loan was for only $1,500, and it does not appear from what source the balance needed to discharge the lien on the Texas land was to be secured. We think it may also be said that, notwithstanding this conveyance from Lamerre to Mrs. McNear, the mortgage company remained charged with notice of the fact that the consideration recited in the deed from the Wardlows to Lamerre had not been paid.

It was,' of course, impossible to close the original contract of sale after the Texas land was sold under the decree foreclosing the vendor’s lien, and the Wardlows brought this suit to cancel this contract of sale and to have a vendor’s lien declared in their favor for the $3,000 consideration recited in their deed to Lamerre, less a small amount of rent which the Wardlows had collected on the Texas land.

The relief prayed was granted, and the court decreed a lien in favor of the Wardlows for $3,000, and adjudged that this lien was superior to the mortgage lien for $1,500 and directed a sale of the property in satisfaction thereof.

To affirm this decree, appellees invoke the rule, and cite cases supporting it, that a subsequent purchaser or incumbrancer who has knowledge of the fact that a portion of the purchase money due on a sale of land remains unpaid is not protected against the equitable lien of the vendor. Appellant concedes the correctness of this rule, but contends that it does not apply here for the reason that the testimony shows that the vendors were not relying on this lien as security for the consideration recited in the deed from them.

As we have said, we think the testimony is sufficient to charge the mortgage company with notice of the fact that the $3,000 had not been paid the Wardlows, but the testimony fails to establish the fact that the mortgage company had any notice that the proceeds of the mortgage loan should not be paid to the mortgagor to whom the loan was made.

Had the loan gone through as the parties contemplated, the Wardlows would have acquired the Texas property and their conveyance to Lamerre would have operated to completely divest them of the title to the Benton County land.

The testimony is very clear that the purpose of the deed to Lamerre was to enable him, or his vendee, to negotiate a loan on the Benton County land. To clear up the title to this land so that the loan could be made, it became necessary to meet certain objections which the examiner of the title made thereto, and Wardlow assisted in meeting these requirements.

We conclude, therefore, that the mortgage company, although it knew the $3,000 had not been paid, was warranted in believing that the Wardlows were not relying upon the equitable lien to secure' its payment. Indeed, we think the Wardlows are estopped from asserting that their vendor’s lien is superior to the mortgage lien after they had conveyed the apparent title for the purpose of enabling their vendee to procure a loan, knowing, as we think the testimony shows, that the mortgage company was asked to make the loan upon the assumption that the mortgage lien would be the first lien. We think there is no testimony upon which to base a finding that the mortgage company would have made this loan except the assumption that the mortgage lien would be the first lien when the loan had been closed.

The loan which was made was made to the person who held the record title, and we think, under the circumstances, the mortgage lien is superior to the lien of the Wardlows, although the mortgage company had notice that the $3,000 had not been paid the Wardlows.

The testimony does not show that the Wardlows ever directed the mortgage company not to proceed with the loan.

We conclude, therefore, that the court below was in error in decreeing that the Wardlows’ equitable vendor’s lien was superior to the mortgage lien, and that decree is reversed and the cause will be remanded with directions to enter a decree adjudging the mortgage lien to be superior to the lien of the Wardlows.

Only the mortgage company has appealed from the decree of the court below, and we therefore consider only the question raised on its appeal — that of the priority of its mortgage lien.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Taylor v. Williams.
    Opinion delivered June 15, 1925.
    Highways — “maximum of federal aid” construed. — The term “maximum of federal1 aid,” in Acts 1925, No. 215, § 2, providing that road improvement districts which cannot obtain the máximum of federal aid without issuing additional bonds or making additional assessment of benefits, shall be entitled to the benefits of such act, held to mean the highest amount which will be awarded to a given district, and does not mean that the district cannot proceed unless it is awarded aid which will equal as high per cent, oí the construction cost as has been awarded any other district.
    Appeal from Mississippi Chancery Court, Osceola ■ District; J. M. Futrell, Chancellor;
    affirmed.

      Bruce Ivy, for appellant.

      J. T. Coston, for appellee.
   Smith, J.

The question involved in this appeal is the meaning of the phrase, “maximum of Federal aid,” found in § 2 of Act 215 of the 1925 session of the General Assembly, approved March 27, 1925.

This is an net entitled “An act to enable certain road improvement districts to receive Federal aid, and on petition of a majority in numbers, acres or value of the property owners therein make additional assessments of benefits, issue and sell additional bonds, construct, improve and maintain the public roads and bridges in said districts.”

It is alleged in the complaint filed by appellant, who is a landowner in the -Osceola and Little Eiver Eoad Improvement District No. 1, that the district is about to issue additional bonds to complete the improvements for the construction of which the district was organized, and will do so unless enjoined, and that relief is prayed.

It is alleged that, pursuant to the requirements of this act, a majority of the land owners have petitioned the commissioners of the district to issue bonds and complete the improvement, but it is alleged that the authority so to do does not exist, for the reason that the maximum allowance of Federal aid has not been made to this distri-ct as required by [act 215 before- any district can avail itself of the provisions of the act.

Section 2 reads as follows: “Section 2. Be it further enacted: That in all -cases where road improvement districts heretofore or hereafter organized could not obtain the maximum of Federal aid, but for this act, and all road improvement districts heretofore or hereafter organized that cannot obtain or procure the maximum of Federal aid without issuing additional bonds or making additional assessments of benefits, shall be entitled to the benefits of this act, and when the State Highway -Engineer or his deputy files with the board of any district his certificate, stating therein that such district could not receive the maximum of Federal aid without the benefit of this act, such certificate shall be final, conclusive and binding on all the world, and such district shall then have the right, power and jurisdiction to proceed under this act.”

Pursuant to the provisions of this act the State Highway Engineer has prepared a certificate reciting that the district is entitled to avail itself of the provisions of this act,, and that Federal aid mounting to $80,000 has been allotted to this district. But it also appears, from the certificate and from the allegations of the complaint, that no additional Federal aid can be allowed, and that the sum -allowed constitutes a much smaller per cent, of the total construction cost than has been allowed other districts receiving Federal -aid.

In other words, it is the insistence of appellant, the landowner, that no district can avail itself of the provisions of act 215 unless an allowance o.f Federal aid is made to such district equal to as large per cent, of the total cost of construction as has been made to any other district receiving Federal aid.

We do not think, however, that such was the legislative intent. The Highway Department determines what aid may be given a particular district, and the largest sum. allotted the particular district is the maximum of Federal aid for that district within the meaning of the act. The certificate of the State Highway Engineer determines the amount of aid, the district may receive, and the landowners, knowing what aid -will be allotted, determine whether they will have the commissioners proceed witli the construction of the improvement after being* thus advised what the maximum aid will be which their district will receive. The balance of the cost must, of course, he derived from other sources.

We conclude, therefore, that the meaning of the phrase, “the maximum of Federal aid,” is the highest amount which ■ will be awarded a given district, and does not mean that the district cannot proceed under the act unless it is awarded aid which will equal as high per cent, of the construction cost as has been awarded any other district.

This construction of the statute is strengthened when the provisions of § 5 of the act are read. It is, of course, essential to procure the certificate of the engineer of the State Highway Department, and the assent of the majority in numbers, acres or value of the property owners within the district, before the commissioners may proceed under act 215; but when these jurisdictional requirements have been met, the commissioners may proceed, and § 5 authorizes the board of commissioners to “borrow a sufficient amount of money for that purpose.”

Of course, the act must be construed subject to the constitutional limitation that the cost shall not exceed the betterments, but subject to this limitation the commissioners may proceed when the landowners have consented in the manner provided by the act after being advised by the certificate of the State Highway Engineer what aid will be allotted, and the aid allotted for that district' is the “maximum of Federal aid” within the meaning of the act.

The chancellor so construed the act and sustained a demurrer to the complaint and dismissed it as being without equity, and that decree is affirmed.


text:
    Herring v. Hunt.
    Opinion delivered June 15, 1925.
    1. Corporations — officer diverting corporate funds. — ■ One receiving a check from an officer of a corporation, drawn against the corporation’s bank account in payment of an individual debt of the officer, with knowledge that the corporation’s funds are being thus misappropriated, becomes liable to the corporation for money thus received.
    2. Corporations — knowledge of diversion of corporate funds.— Though acceptance of a check against corporate funds in payment of an individual debt of an officer of the corporation raises a presumption of knowledge that the corporation’s funds are being misappropriated, such presumption may be rebutted, and the burden of proving knowledge of such appropriation is on the party asserting such fact, and before one accepting a check would be liable .to creditors of the corporation he must have had knowledge that the money received was property of the corporation.
    Appeal from Sebastian Circuit Court, Fort Smith District; JohnE. Tatum, Judge;
    affirmed.

      Irving G. Neale, for appellant.

      Chew & Ford, for appellee.
   Smith, J.

- The Hunt-Cain Hardware Company, a corporation which had been engaged in business at Miami, Oklahoma, made an assignment on February 20, 1922, under the laws of that State, for the benefit of its creditors, and L. B. Herring was named as assignee. After his appointment and qualification the assignee wound up the affairs of the corporation and collected its assets, which were by him distributed to the corporation’s creditors, and which, according to his testimony, were sufficient to pay only about 35 per cent, of the claims of the creditors. The assignee then brought this suit, and alleged that E. C. Cain, a stockholder and officer of the corporation, had misappropriated the assets of the corporation by paying to appellee R. T. Hunt funds known to belong to the corporation in satisfaction of a personal obligation due Hunt by Cain.

The testimony offered in the case in support of these allegations was to the following effect: Hunt had been engaged in the hardware business at Miami, and sold a half interest in the business to Cain, after which the business was incorporated as the Hunt-Cain Hardware Company. Later Hunt sold to Cain his remaining half interest in the corporation, and in payment of the balance due on the sale of this stock Cain remitted to Hunt three checks payable to Hunt’s order as follows: One dated June 15, 1921, for $350; one dated August 5, 1921, for $864.61; and one dated August 27, 1921, for $204. These checks were drawn on a bank in Miami, Oklahoma, and were signed: “Hunt-Cain Hardware, by Edgar Cain, Secy. & Tireas.” These 'checks were indorsed by Hunt and deposited by him in a bank in Fort Smith, where Hunt was then living and in business, and were paid by the bank upon which they were drawn, and the cashier of that bank testified that when paid the checks were charged to the hardware company’s account.

The name of this corporation appears to have been signed both as the Hunt-Cain Hardware Company and as Hunt-Cain Hardware, but the identity of the corporation under both names does not appear to be questioned.

Hunt testified that, after having been in business in Van Burén thirty-five years, he removed to Miami in 1918, and engaged there in the hardware business, in which he invested $15,000. Soon thereafter he sold Cain a half interest in the business for $7,500, of which $2,000 was paid in cash and the balance of $5,500 was divided into monthly payments, the number of which was not stated. The business was then incorporated with a capital stock of $14,000, but the assets of the company amounted at that time to about $19,000, of which $5,000 was invested in fixtures, $3,000 in accounts, and the balance in a stock of hardware. At this time Hunt and Cain regarded themselves as equal owners of the business, although the wife of Cain had stock to qualify her as an incorporator.

Two months after the sale of this half interest Hunt sold Cain the remaining half for $7,500, of which $5,000 was paid in cash, and the balance was evidenced by notes. He admitted that he received and cashed the checks in question, but testified that he paid-no attention to them except the amounts thereof and did not know where the money was coming from with which they were' paid. Hunt further testified that he supposed that both Cain and the corporation were solvent, and he did not realize or know that Cain was using corporate funds with which to pay the individual debt of Cain due him. In other, words, if Hunt’s testimony is to be credited — and its truth was, of course, a question for the jury- — he assumed that Cain was in effect and in fact the sole owner of the business of the Iiunt-Cain Hardware Company, and further assumed that both Cain and the hardware company were solvent and cashed the checks without having his attention called to the manner in which they had been drawn.

The court charged the jury at the request of the plaintiff that a person who accepts a check which, on its face, purports to be drawn on the funds of a corporation by an officer thereof in payment of the personal debt of the officer drawing the check must ascertain whether such officer liad authority to so divert and use the corporate funds, and that the payee of such a check receives and cashes it at his peril and is subject to be required to account for the proceeds thereof if the check was drawn without authority and the funds of the corporation were thus misappropriated.

The plaintiff requested an instruction numbered 3 reading as follows: “You are instructed that an officer of a corporation has no right to use the funds of the corporation to pay his -personal debts, and any one accepting the funds of said corporation from an officer in payment of the officer’s personal debt does so at his peril.” The court gave this instruction after adding, at the end thereof, a qualifying clause reading as follows: “but he must have known that the money was the property of the corporation before he would be bound thereby.” An exception was saved to this modification, and the correct-' ness thereof presents what we regard as the controlling cuestión in the case, although other questions are argued.

It is the law that if one receives from an officer of a corporation a cheek drawn against the corporate bank account, in payment of the individual debt of the officer drawing the check, with knowledge that the funds of the corporation are being thus misappropriated, he becomes liable to the corporation for the money thus received. And the court so instructed the jury. Section 642, chapter on Corporations; in 7 R. C. L., p. 640; Rochester, etc., Turnpike Road v. Paviour, 164 N. Y. 281, 52 L. R. A. 790, and cases cited in the annotator’s note,.

The court also charged the jury in the first instruction from which we have quoted that one receiving the check of a corporation in payment of the personal obligation of ’the officer of the corporation drawing it is put upon notice that he may be held liable for receiving misappropriated funds. But we think the court was not in error in modifying instruction numbered 3 by requiring the jury to find that Hunt knew the funds of the corporation were being misappropriated.

One who is the beneficiary of such misappropriation maybe called upon to restore the funds so received. And, if it be said that the acceptance of a check drawn as were the checks in question raises the presumption that the party accepting it knows that the funds are being misappropriated, this is a rebuttable presumption, and the burden upon the whole case to show that the payee in the check has knowledge of the misappropriation is upon the party asserting that fact. It was not error, therefore, for the court to modify the instruction numbered 3 by adding the clause that Hunt must have known that the money which he received on the checks was the property of the corporation before he would be bound thereby, and this is true, although the form of the checks prima facie imputed such knowledge.

Having concluded that the testimony is legally sufficient to support tfie finding of the jury that Hunt did not know that the funds of' the Hunt-Cain Hardware Company were being misappropriated, it follows that the judgment should be affirmed, and it is so ordered.


text:
    Miller v. Watkins.
    Opinion delivered June 15, 1925.
    1. Executors and administrators — recovery of land — parties.— The -administrator of a deceased wife’s estate cannot sue to establish title to land, and to recover possession thereof from the administrator of the deceased husband’s estate, without making the heirs of the husband and of the wife parties to the suit.
    2. Executors and administrators! — right to recover land. — Under Crawford & Moses’ Dig., § 152, an administrator cannot sue to establish title to and recover possession of, land without showing that the land was needed to pay debts.
    Appeal from White Chancery Court; John E. Martinecm, Chancellor;
    affirmed.

      Tom W. Campbell, for appellant.

      Brundidge & Neelly, for appellee.
   Smith, J.

This is a suit by the administrator' of the estate of Mrs. Nellie T. Rogers against the administrator of the estate of T. B. Rogers. The intestates, who were first cousins, were married about thirty years ago, Mrs. Rogers died in 1913, and her husband died March 1, 1922. No children were born to them.

T. B. Rogers in 1909 purchased from J. H. Franklin a lot in the city of Searcy. The testimony is undisputed that the consideration recited in the deed was paid by T. B. Rogers, but the testimony is conflicting as to whether the deed was made to him, or to his wife, or to both as tenants by the entirety.

This deed was never placed of record and was lost, and, upon this representation being made to Franklin, the grantor, he executed a second deed on March 1, 1921, this deed being made to T. B. Rogers.

Prior to the execution of this deed, and after the death of Mrs. Rogers, a dispute had arisen between Rogers and the heirs of his wife over the title to this land and certain personal property which the heirs claimed belonged to Mrs. Rogers.

While suit for this property was threatened during ihe lifetime of Rogers, it was not actually commenced until after his death, and when commenced the administrator of Rogers’ estate was the sole defendant, his heirs not being made parties, and the administrator of Mrs. Rogers’ estate was the sole plaintiff, her heirs not being made plaintiffs.

The suit was (brought to recover both the land and the personal property, or its value, the same having been sold by the administrator of T. B. Rogers’ estate. The complaint alleged plaintiff’s appointment as administrator, and that there were debts due two of the sisters of Mrs. Rogers; but this allegation was specifically denied, and no testimony was offered to show that Mrs. Rogers was indebted to any one. A nonsuit was taken by the plaintiff in so far as the recovery of the value of the personal property was concerned, and the cause was tried as one to establish title to the lot and to recover possession thereof. The court found the fact to be that the deed from Franklin had been made to Mrs. Rogers, but that her heirs were barred from recovering the lot by the adverse possession of her husband, and the plaintiff has appealed.

This appeal may be disposed of by saying that the plaintiff shows no authority to sue. The suit was brought as one to establish title and recover possession, and neither the heirs of Mrs. Rogers nor those of her husband ■were made parties to this litigation.

Moreover, no showing, was made that the administrator of Mrs. Rogers’ estate required possession of the land to pay debts, even though Mrs. Rogers’ title had not been disputed, and the administrator of Mrs. Rogers bad no right to sue, for this reason. § 152 C. & M. Dig; Hopson v. Oxford, 72 Ark. 272; Doke v. Benton County Lbr. Co., 114 Ark. 1; Jones v. Jones, 107 Ark. 402; Campbell v. Smith, 167 Ark. 633.

Without considering, therefore, the question whether the finding of the court below on the issue of fact as to adverse possession is against the preponderance of the testimony, the 'decree of the court below will be affirmed on account of the incapacity of the plaintiff to maintain the action. It is so ordered.


author: McCulloch, C. J.

text:
    Cook v. Jeffett.
    Opinion delivered June 22, 1925.
    1. Wills — jury question — competency of testatrix. — Whether a testatrix was mentally incompetent held under the testimony to be a question for the jury.
    2. Wills — instruction as to appointment of guardian. — An instruction authorizing the jury to consider, on the issue of mental1 incapacity, the appointment of a guardian of testatrix by the clerk, which the court had previously excluded as incompetent as made without jurisdiction, held reversible error.
    3. Insane persons — adjudication of incompetency as evidence.— An adjudication of incompetency for the purpose of issuing letters of guardianship is merely prima fade evidence of mental incapacity in a collateral proceeding.
    4. Insane persons — adjudication of incapacity as evidence. — A judgment adjudicating mental incapacity in guardianship proceedings which is void for want of jurisdiction is inadmissible in collateral proceedings on the issue of mental capacity to execute a will.
    5. Insane persons — authority of clerk to issue letters of guardianship. — Clerks of the probate court have no authority to issue letters of guardianship for incompetent persons in vacation.
    6. Insane persons — order approving letters of guardianship.— Where the probate court made no adjudication of the insanity of a person alleged to be mentally incompetent, and did not attempt to comply with the statute with reference to bringing such person before the court, the alleged incompetent having in the meantime died, its order merely approving the letters of guardianship issued by the clerk of the court during vacation was void.
    7. Wills — change by interlineation- or obliteration. — An attempt to make a different disposition of an estate by interlineation or obliteration of a will is abortive if made without the attestation required by law, and the will as originally drawn will be given effect.
    8. Wills — partial erasures.- — -Partial erasures made by a te-statrix--or by her direction operate only as a revocation of parts of the will thus obliterated, and do- not affect the remainder of the instrument.
    9. Wills — spoliation.—-An unauthorized erasure or -obliteration of a will by a stranger is ineffective for any purpose, constituting merely a spoliation of the instrument.

      10. Wills — proof to establish obliterated part. — Oral proof is •admissible to restore the obliterated portion of a will if obliteration renders the obliterated part unintelligible.
    11. Wills — burden of proving revocation. — The burden of proving the revocation of a will rests on the person asserting the revocation.
    12. Wills — presumption of revocation. — Where a will is found in custody of a deceased testator, and is mutilated and obliterated to a degree sufficient on its face to revoke it, it will be presumed that such mutilation or obliteration was done by the testator with intent to effect a revocation of the will.
    Appeal .from Woodruff Circuit Court, .Southern District; E. D. Robertson, Judge;
    reversed.

      Roy D. Campbell and W. G. Dinning, for appellant.

      Ross MatMs and Jonas F. Dyson, for appellee.
   McCulloch, C. J.

This proceeding is unusual in that it involves contests of two wills proved to have been executed by the same testatrix. No question is raised about the peculiarity of this feature of the proceeding.

The testatrix, Mrs. Nannie L. Jeffett, who was a childless widow, executed a last will and testament on July 17, 1917, and after her death, which occurred'on December 21, 1920, appellees presented that instrument for probate in Woodruff County, where the testatrix resided. Mrs. Jeffett executed another last wall and testament in due form, dated November 2,1920, and appellants presented it for probate at the same time that .the other will was presented. The proponents of each of the wills contested the admission to probate of the other will, and all' questions relating to the right of probate of each of the wills were treated in the single proceeding in the probate court, as well as in’ the circuit court on appeal. The trial in the circuit court resulted in a verdict against the will executed on Nevember 2,1920, and in favor of the will executed on July 17, 1917. The two instruments will be referred to in this opinion as the will of 1917 and the will of 1920. Each of the instruments was, as before stated, executed in due form and properly attested by two witnesses. *

The will of 1920 contained a clause expressly revoking any other such instrument theretofore executed, and the contention of the proponents of that instrument is that it revoked the will of 1917. On the other hand, the contention of the proponents of the will of 1917 is that at the time of the execution of the will of 1920 the testatrix was not possessed of sufficient mental capacity to make a will, hence the instrument was invalid and did not operate as a revocation of the prior will. That issue was tried before the jury on conflicting evidence.

On the face of the will of 1917 there appear certain interlineations or obliterations of clauses in the will, which the proponents of the will of 1920 contend operated as a revocation of the will of 1917. They are the heirs at law of the testatrix and will, if both wills be rejected, inherit her property. All of these questions are presented on this appeal.

It is contended in the first place that the evidence is not sufficient to sustain the verdict against the will of 1920 on the ground that the testatrix was lacking in mental capacity. Mrs. Jeffett resided in the town of Cotton Plant, in Woodruff County, and was about seventy years of age at the time of her death. She was the widow of Dr. F. A. Jeffett, a Methodist minister, who died prior to the execution of the will of 1917. There were no children born by Mrs. Jeffett, hut Dr. Jeffett left several children, the issue of a former marriage. There is no question as to the mental condition of the testatrix at the time she executed the first will, though there is testimony tending to show that, after the execution of that will, she frequently expressed herself as being dissatisfied with its contents. The testimony adduced by appellants as the proponents of this will showed that Mrs. Jeffett got a friend and neighbor of hers to employ a lawyer to prepare the last will, and that the will was prepared under her direction. The proof shows that the attorney went to the home of Mrs. Jeffett and took from her the data and full instructions from which the will was prepared, and that it was typewritten by tbe attorney and carried back to her home, where it was duly executed in the presence of two witnesses. Both of these witnesses testified- that they were well acquainted with Mrs. Jeffett, 'and that she was perfectly rational at the time she executed the will. There is abundant testimony to support the contention of appellants that Mrs. Jeffett, though feeble in health and at times irrational on account of fever, was rational at times, and was perfectly rational at the time she executed the will. It is conceded, however, that she had been in very poor health for a number of months, and that, while she had spells of fever, which occurred frequently, she was rational at other times. The physician who treated her for months before her death testified as an expert and from observation of her condition that she was not of sufficient mental capacity to transact business. He qualified this statement by saying that he only saw her when she had fever, but the whole trend of his testimony was that her condition had become such that for many months before the execution of this will she was lacking in mental capacity. There were several other witnesses who testified that Mrs. Jeffett was not of sound mind. These witnesses referred to were not experts, but they stated the facts upon which .they based their conclusions, and stated their conclusions to be that Mrs. Jeffett was not of sound mind. There is no specific proof by eye-witnesses who were present at the execution of the will to the effect that Mrs. Jeffett was irrational at that time, but the proof tends to show that her mental condition was very much weakened long before the execution of the will and continued to grow worse for several months before she died. We are of the opinion that there is enough testimony either way to submit that issue to the jury.

Appellees offered to introduce in evidence the record of the probate court of Woodruff County showing that on September 25, 1920, H. C. Argo, a friend and neighbor of Mrs. Jeffett’s, who was one of the witnesses to the will of 1917, filed a verified application with the clerk of the probate court for appointment of a guardian for Mrs. Jeffett as a person of unsound mind, and that the clerk, in vacation, issued letters of guardianship. The record also shows that an order was entered by the probate court on January 18, 1921 (which was after the death of Mrs. Jeffet), approving the action, of the clerk in issuing the letters and approving the bond in vacation. The order reads, as follows:

‘ ‘ On this day comes H. C. Argo with his petition and prays the court that he be appointed guardian of Mrs. Nannie Jeffett, and it appearing to the court that the clerk in vacation did issue letters of guardianship upon the petition, filing a good bond, it is thereupon considered and ordered that the action of the clerk in issuing the letters in vacation and the bond filed herein stands approved. ’ ’

The court sustained the objection of appellants to the introduction of this evidence, and appellees saved exceptions. However, the court in charging the jury gave the following instruction over the objection of appellants:

“No. E-2. You are instructed that the appointment of a guardian for the deceased, Mrs. Nannie Jeffett, by probate court on the ground that she was feeble-minded is a circumstance you may consider in determining whether the deceased was competent or incompetent to execute a will at the time the last will was executed. ’ ’

The giving of this instruction is assigned as error. The position taken by appellants’ counsel is that the court correctly excluded the evidence concerning the record of the probate court, but thereafter, in the submission of the case, erroneously let it go to the jury for consideration. The contention of counsel for appellees is that the court first excluded the evidence and later admitted it without objection from appellant. An examination of the record discloses that the court excluded the probate court record and maintained that ruling. Counsel for appellees were permitted to ask questions so as to get the matter into the record and afford appellees an opportunity to save an exception, but the court always adhered to its ruling that the testimony was incompetent. However, the instruction was given, and we think that this constituted prejudicial er*oi\ The court was correct in excluding from the evidence the record of the probate court concerning the appointment of a guardian. An adjudication for the purpose of issuing letters of guardianship is, in a collateral proceeding, only prima facie evidence of mental incapacity. Eagle v. Peterson, 136 Ark. 72. But, if the court making the adjudication is without jurisdiction, the judgment has no probative force at all, and is not admissible in evidence in a collateral proceeding. The clerk of the court had no authority to issue letters of guardianshir in vacation. Watson v. Banks, 154 Ark. 396. As the record affirmatively shows that the court made no adjudication of insanity of Mrs. Jeffett — did not attempt to comply with the statute with reference to bringing her before the court — the order of the probate court merely approving the letters of guardianship issued by the clerk was void. Monks v. Duffle, 163 Ark. 118. The order is void for another reason, i. e., that it wias made by the court after the death of Mrs. Jeffett.

The cause must, on account of the error in giving the instruction quoted above, be reversed and remanded for a new trial. If the will of 1920 is sustained, it constitutes a revocation of the former will, and that would end the controversy. In view, however, of another trial, it becomes necessary to discuss the effect of the alleged erasures in the will of 1917. That instrument, showing the erasures, reads as follows:

'1 ‘ LAST WILL AND TESTAMENT OF NANNIE JEFFETT. ’ ’
“I, Nannie L. Jeffett, being of sound and disposing mind and memory, but of an advanced age, hereby make, publish and declare this to be my last will and testament, specially revoking all former wills by me heretofore made, if any such there be.
“Item 1. I desire that all my just debts be paid.
“Item 2. I give, bequeath and devise to my two Bioooay Mary Cook and--Margaret Crobo, my-homootead in tbe-tewa of "Cotton Plant; - Woecbrafi: County, xlrkanoas, which-said pr-operty io desoribod-ao followa-: — West lb feat of lot 3 and all of.ioAd.bloqk-fy 65 faai.
“Item 3. I give, bequeath and devise to my two step-children, Fannie McKelvy and Sidney J. Jeffett, the property in Cotton Plant, Arkansas, that stood in the name of their father at his death, and which said property has been quitclaimed to me by said two stepchildren and Dr. W. F. Jeffett, they to take said property subject to the incumbrances thereon and to pay off and discharge the incumbrances, holding my estate harmless against any liability by reason of same.
“Item 4. It is not my intention by this, my last will and testament, to devise my personal property, consisting of jewels, wearing apparel, and household and kitchen furniture. As to this property I will dispose of hereafter by such verbal directions as to me may seem proper. I have some money in the Planter’s National Bank of Cotton Plant. After the payment of my debts out of this fund I desire that my brother, R. B. Cook, be paid the sum of two hundred ($200.00) dollars, and the remainder, if any, to be paid to iay....niaca, Margara! G'roboy"Fainnie’'MeK«í?y;-Sidnoy-J&ffott and- Janie Winc^
‘ ‘ Signed, published and declared as and for my last will and testament, in the presence of the persons whose names appear below as witnesses hereto, and signed by them in my presence and the presence of each other as such witnesses, this the day and year first above written.”

There is no direct evidence as to the custody of the will during the lifetime of Mrs. Jeffett, and no direct proof as to who made the erasures, and the -circumstances under which the same were made. As the case does not appear to have been fully developed on that issue, we express no opinion as to what inferences, if any, may be drawn from the circumstances proved. The weight 'of the proof on that issue will be left to the complete development of the issue in the next trial. It will be observed from a perusal of the instrument that the erasures, or rather, speaking more definitely, the obliterations relate to two clauses of the will — one devising a certain lot of real estate, and the other a residuary bequest of a certain fund in bank. No other change was made in the will itself by the erasures. It is not a case of an omission by erasure which substitutes one bequest for another, but it is merely an instance of the obliteration of bequests, which, if sustained, would result in intestacy as to those provisions which were changed by alterations or erasures. Our statute on the subject of the revocation of wills is as follows:

“Section 10501. No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than 'by some other will in writing, or some other writing of the testator, declaring such revocation and alteration., and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some other person, in his presence, by his direction and consent, and when so done by another person the direction and consent of the testator, or the fact of such destruction, shall be proved by at least two witnesses. ” Crawford & Moses ’ Digest.

. In 28 R. C. L. 185 there is a pertinent and complete statement of the law as to the effect of obliterations of clauses in a will by erasures, as follows: “But except where statutes are in force to which this construction has been or must be given, the obliteration of a will may be partial as well as total, and where any clause is by any means so obliterated that it can no longer be read, it is' revoked, and the will must be admitted to probate without it. * * * Obviously every erasure of an effective part of a will constitutes a change in the testamentary disposition. • Nevertheless the courts, in deciding whether a will must he reattested after the making of the erasures draw a distinction between an erasure which merely indicates an intention to expunge a clause or portion of the will and one which gives a new meaning to the words not erased. In the latter, but not in the former, case a reattestation is required. The general rule, therefore, is that when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect. * * * It has been held that an erasure of a specific legacy from a will with the effect of increasing the residuary bequest is not a sufficient revocation of such legacy since it is in effect the making of a new testamentary disposition. An obliteration of an exception to a general clause in a will does not restore the operation of such clause, without a republication, this being considered a new devise. * * * When parts of a will have been effectively erased by a testator they are no more a part of such will than if they had never been written therein.”

The authorities cited fully support the text. The case of Bigelow v. Gillott, 123 Mass. 102, is particularly in point because the Massachusetts statute on the subject of revocation of wills is almost identical with our own. In that case the court held that, quoting from the syllabus, “An erasure by a testator of certain clauses in his will, with the intention of revoking them only, is a valid revocation of such clauses, but not of the whole will * * It will be observed that in the case just cited it was held that-the property covered by the obliterated clause passed under the general residuary clause. In that respect the case is in conflict with other authorities on the subject, which seem to be in the majority. The rule supported by the weight of authority is, as is stated in the text of Ruling Case Law, supra, that “when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect.” Eschbach v. Collins, 61 Md. 478; Wells v. Aells, 4 T. B. Mon. (Ky.) 152; Miles’ Appeal, 68 Conn. 237; Pringle v. McPherson, 2 Brev. (S. C.) 279. Under the authority of these cases it is apparent that if the proof warrants the finding that these erasures were made by the testator or by her direction, they operate only as a revocation of the parts of the will thus obliterated and do not affect the remainder of the instrument. The authorities are plain that an erasure or obliteration by a stranger without authority from the testator or testatrix is not effective for any purpose. Such an act constitutes a spoliation, and proof may be made orally, if the obliteration is complete so as to make the part obliterated unintelligible, to re-establish the obliterated part. 28 R. C. L. 186.

The law seems to be well settled on the subject as to the burden of proof in the case of alleged revocation, and it may be well, in view of another trial, to state here the 'correct rule as announced in 28 Ruling Case Law, p. 399, as follows: “The burden of proof of showing that a will has been revoked rests as a rule on the person who asserts that such revocation has taken place, and one who asserts that a second will contained a clause of revocation of a prior will has the burden of establishing that fact. After the death of a testator whose will is found in a mutilated condition there is rarely any evidence accessible to show when or how the will came to be in the condition in which it was found. In this dilemma, the courts have adopted the rule that when a will was in the custody of the decedent and is found after his death bearing upon its face evidence of such acts of mutilation or of obliteration as are sufficient to revoke it, its condition will be presumed to have been the work of the testator done with the intent to effect its revocation.” Numerous authorities support the text.

The Supreme Court of the United States in Throckmorton v. Holt, 180 U. S. 552, speaking on this subject through Mr. Justice Peckham, said: “There must be some evidence of an act of the deceased, or under his direction, which would be sufficient to show the fact, or the instrument must have been found among the papers of the deceased, mutilated, torn or otherwise defaced, and under such circumstances that the fact of revocation might be presumed. ’ ’

In Williams on Executors (vol. 1, p. 97) it is said: “So where a will and codicil were in the testator’s custody, and the will is found mutilated after his death, in. the absence of evidence the presumption is that it was mutilated by the testator after the execution of the codicil.”

In Redfieldon Wills (vol. 1, p. 307) the author said: “The rule of evidence in the ecclesiastical courts in regard to presumptive revocation, from the absence or mutilation of the will,, seems to be, that if the will is traced into the testator’s possession and custody, and is there found mutilated, in any of the modes pointed out in the statute for revocation, or is not found at all, it will be presumed that the testator mutilated it, animo revoeandi; but, if it was last in the custody of another, it is incumbent upon the party asserting revocation to show the will again in the testator’s custody or that it was destroyed or mutilated by his direction.”

The New York Court of Appeals in the case of Re Hopkins, 172 N. Y. 360, laid down the rule broadly that “the finding of the will in the testator’s desk, with his signature cancelled, raised the presumption that the cancellation was done by him with the intent of revoking it.”

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


author: Hart, J.,

text:
    Heathcock v. Brooke.
    Opinion delivered June 22, 1925.
    1. Trial — jurisdiction—law and equity. — An answer to a suit on a note setting uip the defenses of wiant of consideration, and release presents purely legal defenses, which are triable at law and not in equity.
    2. Continuance — absent witness. — Refusal of a continuance for the absence of a witness who would testify that he saw a letter from plaintiff which confirmed defendant’s contention, held, not error, in the absence of a showing that the letter was lost, since otherwise the letter would be the best evidence. ,
    3. Continuance — absent witness. — Refusal of continuance for absence of a witness was not an abuse of discretion where his testimony would be merely cumulative, and where there is no showing as to where he was or that there was any probability of obtaining his testimony.
    4. Bills and notes — proof of execution. — In a suit on a promissory note, where defendant admitted its execution, and two other witnesses testified thereto the proof of execution was sufficient.
    5. Bills and notes — presumption as execution. — In view of Crawford & Moses’ Dig., § 4114, in the absence^ of an affidavit of the purported maker of a note denying the genuineness of his signature, the note is prima facie evidence of its execution.
    Appeal from Deslía Circuit Court; T. G. Parham, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Ou the 27th day of November, 1923, Gunter Brooke sued G. G. Heathcock in the circuit court to recover the sum of $400 with the accrued interest alleged to be due upon a promissory note.
    The defendant first filed an answer in which he denied the execution of the note sued on. Subsequently the defendant filed a substituted answer and motion to remove the case to the chancery court.
    According to the allegations of his answer, on or about the first day of October, 1919, Gunter Brooke shipped a carload of apples to him under an agreement that they were sound and hand-picked, and Heathcock agreed to pay therefor the price of $1.25 per bushel. When the car of apples arrived, many of them were rotten and unsalable, and out of the entire car, there were only 175 bushels of marketable apples. Heathcock notified Brooke of the condition of the apples, and he agreed to stand the loss for any bad apples. Brooke admitted that the defendant was not liable for the unmarketable apples; but stated that he wanted to make a showing to his partner, and that in order to carry out this purpose Heathcock gave him his note for $400. Brooke said that he would never present the note for payment, but would cancel it at an early date. As a part of the agreement, Brooke was to ship a carload of young Jersey cows to Heathcock and guaranteed that the latter would make at least $10 on each cow.
    It was further agreed that the note in question for $400 should be considered as a balance on the purchase of the cows and should be paid out of the proceeds of the sale. Brooke failed to ship the cows and refused to cancel the note. JT-he answer further alleges that the note is void Jor want of consideration and was procured by fraud.
    The court refused to transfer the case to the chancery court, and it was tried before a jury.
    The plaintiff introduced the note sued on. It was dated October 22, 1919, and was due ninety days after date. • It was payable to the order of Gunter Brooke for $400 with interest from maturity at the rate of 10 per cent, per annum, payable semi-annually and was signed “G. G. Heathcock.”
    The defendant was a witness for himself and testified to a state of facts substantially as set forth in his answer. The matters therein set forth may be considered as an abstract of his testimony given at the trial. The facts testified to by him were corroborated by other witnesses. In addition to this it may be stated that Heathcock admitted that he signed the note sued on. The person who wrote the note also testified that Heath-cock signed it.

      Gunter Brooke was a witness for himself. According to his testimony G. G. Heathcock executed the note sued on hi part payment of a car of apples which had been shipped to him. The price of the carload of apples amounted to $708.75. Heathcock paid $308.75 on the purchase'price of the apples and gave his note for the balance of the purchase price amounting to $400. This is the note sued on in this case. None of the apples were rotten, and all of them were in a marketable condition when shipped to the defendant by the plaintiffs. Brooke never agreed to 'ship any cows to Heathcock, and the note sued on was executed solely for the balance of the purchase price of the apples.
    Another witness for the plaintiff testified that the apples were in good condition when they arrived at their destination and were received by Heathcock.
    The jury returned a verdict for the plaintiff and from the judgment rendered, the defendant has duly prosecuted an appeal to this court.

      Poff é Smith, for appellant.

      P. S. Seamans, for appellee.
   Hart, J.,

(after stating the facts). .At the outset it may be stated that the court did not err in refusing to transfer the case to equity. In Weaver v. Arkansas National Bank, 73 Ark. 462, it was held that an answer to a suit on a note setting up the defenses of a want of consideration and a release presents purely legal defenses which are triable in law, and not in equity.

It is next insisted that the court erred in overruling the defendant’s motion for a continuance. The motion set up that if Perry Jones was present he would testify that about the latter part of October, 1919, he saw a letter from the plaintiff addressed to the defendant in which plaintiff stated that if he could not ship the cows he would cancel the note in question. The motion further recites that if Dillard Lackey was present he would testify that he had heard the conversation between the plaintiff and the defendant as to the purpose in view and heard the former tell the latter that he simply wanted him to execute the note in question to enable him to make a showing to his partner and that he never expected to collect the note. The plaintiff stated that if the defendant would accomodate him by executing the note he would ship the carload of Jersey cows to him, and that he could make a profit from the sale of them to more than offset the amount of the note.

There was no error in refusing to grant the motion for a continuance. There is no showing that the letter which Perry Jones would have testified about had been lost, and the letter itself would have been the best evidence as to its contents.

As to the witness Dillard Lackey, there was no showing as to where he was or that there was any probability of obtaining his testimony in the future. Moreover, his testimony was merely cumulative, and for that reason the court did not abuse its discretion in refusing to grant the motion. Texarkana & Ft. Smith Ry. Co. v. Adcock, 149 Ark. 110, and Finley v. Clift, 164 Ark. 190.

It is next insisted that the court erred in allowing the note sued on to be introduced in evidence without proof of its execution. A sufficient answer to this contention is that the defendant in his own testimony admitted that he signed the note sued on. Its execution was also testified to by the plaintiff, and by the person who wrote the note, and who was present when the defendant executed it.

In the second place, the defendant did not file an affidavit denying the genuineness of his signature to the note, and for that reason the note was prima facie evidence of its execution. Crawford & Moses’ Dig., § 4114, and Gardner v. Hughes, 136 Ark. 332.

The respective theories of the parties' to this lawsuit were fully and fairly covered by the instructions given to the jury. We find no reversible error in the record, and the judgment will be affirmed.


text:
    Sloan v. Blytheville Special School District No. 5.
    Opinion delivered June 22, 1925.
    1. Courts — construction of opinions. — The language used in any opinion of the court must foe construed as a whole, and read in the light iofl issues presented.
    2. Schools — grant of sixteenth section. — The effect of the grant to the State by Congress of the sixteenth sections of land for the benefit of the inhabitants of the congressional township for school purposes was to vest the legal title to such lands absolutely in the State without limitation of its power to dispose of the lands, though there is a sacred obligation imposed on the good faith of the State to use the lands for the benefit of the public schools.
    3. Schools — distribution of funds from sale of school lands.— Acts 1899, No. 159, § 1 (Crawford & Moses’ Dig., § 9285) and Acts 1919, No. 344, § 5 (Crawford & Moses’ Dig., § 9108), directing that the funds arising from the sale of the sixteenth section school lands be credited to the permanent school fund of the iState, rather than to the fund of the school district in which the sixteenth section is situated, held constitutional.
    Appeal from Pulaski Chancery Court; John E. Martinecm, Chancellor;
    reversed.
    statement of eaots.
    Appellees brought this suit in equity against appellant to restrain him as treasurer of the State of Arkansas from placing certain money derived from the sale of sixteenth section school lands to the credit of the permanent school funds of the State of Arkansas. The answer admitted the allegations of the complaint that certain sixteenth section school lands in Mississippi County, Arkansas, were sold by order of the county court, and the proceeds thereof are now in the hands of the sheriff of Mississippi County, for payment into the treasury of the State of Arkansas, and that the State Treasurer declines to receive said funds as State Treasurer for any purpose other than as a credit to the permanent school funds as provided by section one of Act 159, approved May 18, 1899, and appearing in Crawford & Moses’ Digest as § 9285, and § 5 of act 344, approved March 22, 1919, and appearing in Crawford & Moses’ Digest as § 9108.
    The appellant denies that the act of Congress approved March 8, 1898, and the acts of the Legislature above referred to are unconstitutional. In this connection it may be stated that they authorized and directed the credit of funds arising from the sale of sixteenth section school lands to the permanent school funds of the State.
    Appellees filed a demurrer to the answer of the appellant, which was sustained by the chancery court. Appellant declined to plead further and elected to stand upon his answer. It was therefore decreed that appellant be enjoined from crediting to the permanent school funds of the State the proceeds of the sale of the sixteenth section school lands in question, and appellant was ordered and directed to credit said funds to the inhabitants of the special school districts in which the lands sold were situated. The case is here on appeal.

      II. W. Applegate, Attorney General, Brooks Hays, Assistant, and XJtley & Hammock, for appellant.

      Little, Buck $ Lasley, for appellee.
   Hart, J.,

(after stating the facts). The sole question raised by the appeal is whether the funds derived from the sale of sixteenth section school lands under the statute should be credited to the inhabitants of the school district in which the land is situated as provided by the earlier act.

The contention of appellees, who were the plaintiffs in the court below, is that the statute providing that the proceeds arising from the sale of sixteenth section lands shall be a part of the permanent school funds of the State is invalid because inconsistent with the act of Congress granting the school lands to the State of Arkansas and the act of the State accepting the grant. In short, it is the contention of appellees that this compact created a trust in favor of the inhabitants of the school district in which the sixteenth section lands are situated which could not be abrogated by an act of the Legislature, or by an act of Congress.

Since Cooper v. Roberts, 18 How. (U. S.) 173, and Mayers v. Byrne, 19 Ark. 308, contain a complete history of sixteenth section school lands, their legal status, and the beneficent motive that caused said lands to be devoted to educational purposes, we need not repeat these matters here. While the precise question raised by this appeal was not decided, the effect of those cases is to hold that under the compact between the United States and the State of Arkansas there was a grant to the State directly of these lands without any limitation of its power, and that no application to Congress was necessary to direct the appropriation of their proceeds. It will be noted that, under the original compact, the section numbered sixteen in every township was granted to the State for the use of the inhabitants of such township for the use of schools.

It is true that the Legislature memorialized Congress to allow it to change the funds to the credit of the general school funds of the State, and that such permission was given by the act of Congress of March 8, 1898, which resulted in the passage of the act of the Legislature approved May 18, 1899.

As stated by the Supreme Court of the United States in the case last cited, the consent of Congress Was not necessary, and the application for it was but evidence of the strong desire of the Legislature to act in good faith and to keep within the pale of the law.

In Mayers v. Byrne, 19 Ark. 308, the sale of a sixteenth section was sought to be set aside on the ground of fraud and illegality ini the sale, and the court sustained the sale under an act of the Legislature confirming it. Upon appeal, it was held that the act of the General Assembly confirming the sale was valid and effectual, and that the decree of the court below dismissing the bill for want of equity must be affirmed. The court held that flic title to the land vested absolutely in the State under the compact 'between the United States and the State. In discussing the question, Chief Justice English said: ‘ ‘ The State accepted the grant, however, charged with the trust, that the land was to be appropriated to the use of the inhabitants of the township in which it was situated, for the use of schools. The State, as a sovereign, not as an individual, took upon herself a trust, which she was to execute, and could only execute, by such municipal legislation as her General Assembly might deem necessary and expedient to carry into practical effect the’ objects of the grant. The land was to be appropriated to the support of schools for the benefit of the inhabitants of the township in which it was to be situated, but whether this was to be effected by leasing the land, or selling it, and putting the proceeds upon interest, was not prescribed by the act of Congress making the grant, and of course was left to the. discretion and good faith of the State.”

Again in Widner v. State, 49 Ark. 172, it was held that the legal title to said lands is in the State, and that it is held in trust for the support of schools for the inhabitants of the township in which it is situated. There the right of the State to sue a trespasser on school lands for the inju^r complained of was upheld.

In State v. Burke, 63 Ark. 56, it was held that the statute of limitations could not be pleaded against an action by the State to foreclose a mortgage given to secure a loan of money belonging to the sixteenth section school funds, and held by the State 'in trust for the •use of schools. In discussing the question the court said that it was held in Mayers v. Byrne, 19 Ark. 308, that the effect of the act of Congress and the acceptance of the proposition therein contained was to vest the title to the sixteenth sections therein granted absolutely in the State, and that the State as a sovereign and not as an individual took upon herself a trust which she could only execute by such legislation as her Legislature might enact to carry into practical effect the object of the grant.

In discussing- the question the court said: “While the State has always recognized the inhabitants of each township as the beneficiaries of the grant of the sixteenth sections in their township, it has never abandoned the trust it assumed, but has always made and treated the individuals or corporations placed in control of the same as component parts of a general system of education, and at the same time as instruments in its hands for the performance of that trust.”

Again in School District No. 36 v. Gladish, 111 Ark. 329, the court expressly recognized that, while the effect of our earlier decisions was to hold that the State held the legal title to the sixteenth sections in trust for the support of schools for the inhabitants of the township in which the land was situated, it was for the Legislature to determine how and by whom these lands shall be managed and sold, and how the trust should be executed.

In Special School Dist. No. 5 v. State, 139 Ark. 263, the court again quoted with approval from Mayers v. Byrne, 19 Ark. 308, to the effect that the State as a sovereign, and not as an individual, took upon herself a trust which she was to execute and could only execute by such legislation as her General Assembly might deem necessary, and expedient to carry into practical effect the objects of the grant. It was there held that the funds derived from the sale of sixteenth section school lands could not be reinvested in a building and equipment to be used for high school purposes.

In Brooks v. Wilson, 165 Ark. 477, it was held that while the trust created by the compact between the United States and this State that sixteenth section lands should be used for school purposes is a sacred obligation imposed on the good faith of the State, the obligation is lionorarv. and that, the legal title to such lands being vested in the State, its power over the same is plenary and exclusive. In that case an inhabitant of the school district brought suit against the sheriff to enjoin him from issuing a certificate of purchase of sixteenth section school lands situated within the limits of said school district. The chancellor dismissed the complaint for want of equity, and the decree was affirmed.

While the question raised by this appeal was expressly reserved from decision, it is manifest from the reasoning of the court and the cases cited that the court held that the legal title to said lands was intended to be vested in the State, and was so vested by the acceptance of the conditions by the Constitutional Convention under which the State was admitted into the Union.

The language used in any decision must be construed as a whole and read in the light of the issues presented. It is manifest from all these decisions that the trust reposed by the United States is in the State of Arkansas; that it is in the nature of a personal trust in the public faith of the State, and not a property trust fastened by the terms of the grant upon the land itself. The effect of all our decisions is that the grant by Congress was to the State directly of these lands, without any limitation of its power, and that no application to Congress was necessary to direct the appropriation of their proceeds.

This holding is in conformity with the rule adopted by the Supreme Court of the United States. In discussing a similar compact between the United States and the State of-Michigan in Cooper v. Roberts, 18 How. (U. S.) 173, the court said: “The trusts created by these compacts relate to a subject certainly of universal interest, but of municipal concern, over which the power of the State is plenary and exclusive. In the present instance, the grant is to the State directly, without limitation of its power, though there is a sacred obligation imposed on its public faith. We think it was competent for Michigan to sell the school reservations with out the consent of Congress.

Again in the State of Alabama v. Schmidt, 232 U. S. 168, the court held that the act under which Alabama became a State vested the legal title of section sixteen of every township in the State absolutely, although the statute declared that it was for the use of schools. It was held further that, while the trust created by^a compact between the States and the United States that sec-^ tion sixteen be used f-or school purposes i£ a sacred obligation imposed on the good faith of the State, the obligation is honorary, and the power of the State, where the legal title has been invested in it, is plenary and exclusive.

In King County v. Seattle School District No. 1, 263 U. S. 361, the court had under consideration an act of 'Congress directing that a certain per cent, of all money from each forest reserve shall be paid to the State in which the reserve is situated to be expended as the State Legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated, and held that the act does not create a trust, although a sacred obligation is imposed on the public faith of the State. The decision expressly recognized that there is no limita.tion upon the power of the Legislature to prescribe how the expenditures shall be made for the purposes stated.

A similar construction has been placed upon the act of Congress granting to the State of Arkansas certain swamp and overflowed lands to construct necessary levees and drains to reclaim such lands. Branch v. Mitchell, 24 Ark. 431; Hagar v. Reclamation District No. 108, 111 U. S. 701; and United States v. Louisiana, 127 U. S. 182. See also Board of Supervisors of Whiteside County v. Burchell 31 Ill. p. 68, Dunklin County v. District County Court 23 Mo. 449; and Gaston v. Scott, 5 Ore. 48.

The necessary result of all these decisions arising in various ways is to hold that the nature of the trust raised by the compact between the United States and the States in eases of this sort is a mere personal trust, and that its execution is a matter exclusively within the control of the Legislature. They hold that the trust is not fastened to the land and does not run with it.

Of course, while the power of the Legislature to deal with the land is not affected by the compact, it would be affected by any constitutional ^limitation of the State. Article 14 of our Constitution provides for the establishment and maintenance of common schools in this State and their support by taxation. The supervision of public schools and the execution of the laws regulating the same is vested in and confided to such officers as may be provided by the General Assembly.

Section 2 provides that no money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.

As we have already seen, this court and the Supreme Court of the United States have uniformly held that the title to these sixteenth section lands is vested absolutely in the States, and that the Legislature has exclusive control over the funds. The provision of the Constitution just referred to is mandatory in its nature and would prevent the Legislature from using the proceeds from these school lands for any other purpose than the support of the common schools. The language of the Constitution, however, does not limit the funds to the use of the particular district in which the sixteenth section lands are situated. The only restriction in the Constitution is that the money shall never be used for any other than school purposes. This was the dominant purpose guiding the court in the decision of Special School District No. 5 v. State, 139 Ark. 263.

While that decision does state that the State is under a sacred obligation to carry out the purposes of the grant, expressed in the act of Congress, yet, it clearly recognizes that the trust is a personal one; and that the manner of its execution is exclusively within the power of the Legislature. In short, it recognizes that the manner of the execution of the trust is a matter of public policy of tlie State, which can only be exercised by the Legislature, and which is a question that does not at all address itself to the courts.

The result of our views is that the grant of the sixteenth section lands submitted to the State by the act of Congress and .accepted by the State was of the fee to the lands without limitation upon the power of the State. It is true that the grant imposed a trust which was accepted by the State; but the trust was of a personal nature and to be exercised by the State as a sovereign and was not a trust fixed upon the land itself and running with it.

Reliance is placed by counsel for appellees upon the case of the State of Indiana v. Springfield Township in Franklin County, 6 Ind. p. 83, but we think the trend of that decision is contrary to the reasoning of our own eases, and those of the Supreme Court of the United States cited above, and its reasoning does not appeal to our minds.

It follows that the decree of the chancellor will be reversed, and the cause will be remanded with directions to dismiss the complaint for want of equity.

Smith, J., dissents.


text:
    Wilson v. Anderson.
    Opinion delivered June 22, 1925.
    Dismissal and nonsuit — reinstatement.—Where an appeal by a defendant from the judgment of a justice of the peace was dismissed for want of prosecution, and on the same day a motion to reinstate was filed, alleging that defendant had employed an attorney to prosecute his appeal, and had not been informed by such attorney that he would not represent him, held that the dismissal should have been set aside.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    reversed.

      Saxon <& Davidson, for appellant.
   Smith, J.

This suit originated in the court of a justice of the peace, and the appellant here was the defendant there. A judgment was rendered by the justice of the peace for the plaintiff, from which the defendant appealed to the circuit court. This appeal appears to have been perfected on September 8, 1923, and the cause was placed on the docket of the circuit court. On'the 24th of April, 1924, the following order was made in the circuit court: “Now on this day this cause being reached on the court’s docket and, same being called for trial, said appeal is by the court dismissed for want of prosecution.”

On the day on which this order was made a motion was filed to reinstate, which contained the following-allegations. There were recited facts which, if true, constituted a highly meritorious defense to the plaintiff’s cause of action. It was recited in this motion that the cause was set for trial Thursday, April 24, 1924, and that defendant ivas present for the trial. He had employed a regular practicing- attorney to represent him at the trial. The court.proceeded to sound the docket to ascertain what cases were ready for trial, and when the instant case was called for that purpose appellant’s attorney was not present, and the cause was dismissed for the want of prosecution.

Appellant immediately advised the attorney he had employed to represent him of the court’s action, and was then, for the first time, informed that the attorney had retired from practice and would not appear in any case. This attorney was not present in court when the cause was dismissed and did not appear for half an hour thereafter, but, as soon as the attorney did appear and hiad advised appellant that he would not represent him, appellant immediately employed another attorney and announced ready for trial and prayed the reinstatement of the cause. Appellant was not advised by his original attorney that he would not appear for him until after the order of the court had been made dismissing the appeal.

Defendant’s new attorney prepared and filed at once a motion to reinstate, which was duly sworn to, and the facts herein recited are copied from this motion.

It was there further recited, “that defendant is old and infirm and knows nothing whatever about court procedure, and when the case was being called he did not know it was for dismissal and was not informed by the court nor any one for the court that his case was being called up for the purpose of determining whether it would be ready for trial, and that if he failed to announce ready for trial the cause would be dismissed.”

This motion was heard the day it was filed, and the court entered the following order: “Now on this day comes the parties herein by their respective attorneys and the motion filed in this cause asking that the order of dismissal had in this cause be set aside and said cause be reinstated, and, said motion coming on to be heard and same being submitted to the court, the court, after being well and sufficiently advised in the premises and after hearing argument of counsel for both plaintiff and defendant, is of the opinion that said motion to reinstate should be and same is by the court overruled and denied.”

This appeal is from the order of the court refusing to reinstate the cause for trial* and, as we understand the judgment from which we have copied, the matter was heard on the motion. No testimony appears to have been-offered on the hearing of the motion, and it was apparently disposed of as if it had been heard on demurrer to the motion.

When thus considered, it appears to us that a prima fade showing was made that appellant did not fail to prosecute Ms appeal with diligence. He was present ready for trial except only that his attorney had retired from practice without advising his client of that fact, and within half an hour after being so advised appellant had employed other counsel, and had announced ready for trial. Upon this showing we think there was no lack of diligence on the part of appellant in prosecuting Ms appeal from the judgment of the justice o:f the peace, and the order dismissing the cause for want of prosecution should have been set aside, unid a trial of the cause on its merits ordered.

For the error indicated the judgment will be reversed, and the cause remanded with directions to set aside the order of dismissal and to redocket the cause for trial on its merits.


author: ÍSmith, J.

text:
    Wilson-Ward Company v. Fleeman.
    Opinion delivered June 22, 1925.
    1. Appeal and error — presumption prom absence op instructions. —Where instructions are not set out in the appellant’s brief, it will1 be conclusively presumed that the case was submitted under instructions which correctly declared the law.
    2. Factors — negligence—damages.—Where a factor fails or neglects to comply with his principal’s instructions to sell cotton- of the latter in his possession at a certain time for the best available price, he is liable for the difference between the price then obtainable and the- amount actually received at a later date, though the market price could not then have been obtained, as the factor had no right to withhold the cotton to assist in supporting the market.
    3. Appeal and error — harmless error — admission op evidence.— In a suit against a factor for failure to -sell his principal’s cotton at the Memphis market, where a witness testified as to- the market price at Memphis, it was not reversible error to permit the witness to testify as to the market prices at two neighboring towns, whose Markets were controlled 'by the Memphis market.
    4. Trial — sufficiency op verdict. — A verdict is not so uncertain that judgment can not he entered on it if, when read in connection with the answers to special interrogatories, and the admitted facts, the verdict is for a sum at least equal to the judgment rendered.
    Appeal from Mississippi Circuit -Court, Chickasawba District; W. W. Bandy, Judge;
    affirmed.

      C'has. M. Bryan, Prewitt tiemmes and Arthur G. JJrode, for appellant.

      Little, Buck cfi Lasley, for appellee.
   ÍSmith, J.

Appellant, a corporation engaged in business in Memphis, Tennessee, as a cotton factor, sued appellee for a balance alleged to be due on advances made on consignments of cotton shipped to appellant by appellee, to be sold for appellee’s account.

Appellee admitted the correctness of the account sued on, but filed an answer and cross-complaint, in which he alleged that he did not owe appellant anything, but that appellant was indebted to him, for the reason that appellant had negligently failed to sell appellee’s cotton when directed, and appellee prayed judgment on account of such negligence in the sum of $1,523.21.

Special interrogatories were submitted to the jury, and there was a general verdict in favor of appellee, and from the judgment pronounced thereon is this appeal.

Appellee is a farmer at Manila, Arkansas, and on December 27, 1919, he shipped appellant sixteen bales of cotton, to be sold on commission. At the time of this shipment appellee was not indebted to appellant in any amount, but he drew a sight draft on appellant for the sum of $2,000, with bills of lading attached, and this draft was paid as an advance on the cotton. In January, 1920, appellee shipped six additional bales of cotton, and drew $500 against this shipment. These twenty-two bales of cotton weighed 11,388 pounds. Appellee had, in addition, in appellant’s hands one bale of cotton, which was a part of a shipment made in May, 1919. This last bale of cotton was sold on February 6, 1920, for forty cents per pound. In October, 1921, appellee shipped appellant five additional bales of cotton, making twenty-eight bales in all. These five bales were promptly sold, land no question is made about them.

About the 1st of March, 1920, appellee, accompanied by J. M. Hutton, who was also a farmer at Manila, went to Memphis to see appellant about the sale of his cotton.

It was explained to appellee by the president of the appellant company and appellant’s cotton salesman that the warehouses in Memphis were crowded with cotton for which there was but little demand. Appellant itself had on hand at that time something over thirteen thousand bales of cotton, on which the banks had loaned $100 per bale, with warehouse receipts for the cotton as collateral. Appellee was told that the farmers would have to assist in supporting the market or it would collapse, as it was impossible to sell any considerable quantity of cotton at the prevailing quotations, and that, if the sale of cotton was forced, it would have to be sold at a price considerably less than the quotations. It appears, however, that, notwithstanding these assurances, appellee directed that his cotton be sold for the best price obtainable and without reference to the quotations.

Sales of cotton were made by displacing samples taken from the bales, which were placed on tables in the salesroom. No samples of appellee’s cotton were on display, but the samples which were taken from appellee’s bales were found under a table by the office boy. Appellee’s salesman explained that this fact did not indicate that proper effort was not being made to sell the cotton, as the cotton was sold by grades, and other cotton of the same grade as that of appellee was on display.

Appellant’s salesman told appellee that appellee’s cotton was worth an average of thirty-five cents per pound, and would bring that price if the quotations could be obtained, but he stated that there was no demand for it at that price. Appellee then told the salesman to sell his cotton at the best price obtainable. -

The president of appellant company admitted that the cotton could have been sold for twenty or twenty-one cents per pound at the time appellee ordered it sold; but appellee insists that the testimony of this witness and that of the salesman shows that a sale of the cotton might have been made for as much as twenty-nine and one-half cents per pound at the time appellee ordered it sold. In any event, we are unable to say that the testimony in its entirety is insufficient to support the finding that it could have been sold March 1st, when the direction to sell was given, at twenty-five cents per pound. In response to an interrogatory specially submitting this question, the jury found that the cotton could have been sold at that time for twenty-five cents. By the testimony of appellant’s officers the cotton was then worth thirty-five cents per pound according to the quotations in the Memphis market.

The instructions given in the case are not set out in appellant’s brief, and it will therefore 'be conclusively presumed that the case was submitted to the jury under instructions correctly declaring the law.

Appellant insists that a verdict should have been directed in its favor under the undisputed evidence, and asserts that the case is analogous to and should be controlled by the decision of this court in the case of Wynne, Love & Co. v. Bunch, 157 Ark. 395.

There is, however, a very important distinction between the two cases. In the former case Bunch, the owner of the cotton, directed the factor to sell his cotton, 'but the direction contemplated a sale at the market quotations, a thing which could not be clone because there was no demand for the cotton at the quotations then prevailing. Here the testimony is that the owner of the cotton gave explicit and peremptory instructions to the factor to sell at the best price obtainable, whatever that might be, and the president of appellant company expressly admitted that a sale could have been made after directions to sell had been given for a price sufficient to repay the advances made on the cotton. The cotton was finally sold by appellant at prices ranging from 11% cents to 17% cents per pound.

Appellee liad the right to order his cotton sold under these circumstances. He was under no obligation to assist in supporting the market by withholding his cotton because the market price could not be obtained, and appellant should have obeyed the direction to sell. This appears to be the essence of this case, and the testimony shows that the factor disregarded his principal’s express instruction. Indeed, the chief question of fact appears to be whether the factor could have sold the cotton for as much as twenty-five cents per pound, and the answer of the jury to the interrogatory submitting that issue is conclusive of the question, as the testimony is legally sufficient to support the finding made.

It is insisted that there was no testimony to show the grade or staple of the cotton; but the testimony of Hutton, who examined the cotton in appellant’s office and who was familiar with grades and staples, sufficed for that purpose. Witness Hutton was asked on his direct examination if he knew “whether or not cotton of a similar grade was being sold by other people in Memphis during January, February and March, 1920” and answered, “As I remember, cotton was selling for around thirty-two up to thirty-eight and forty cents.” Upon his cross-examination the witness was asked if he did not have reference to the Blytheville and Manila markets, and he answered, ‘ ‘yes ’ ’. The appellant then moved to strike the former answer of the witness from the record. This the court declined to do, and an exception was duly saved. We think there was no prejudicial error in the ruling of the court for the reasons: (1) the president and salesman of appellant company had testified that cotton was selling in Memphis at prices equaling those stated by the witness when sales were made; (2) the witness further stated that the markets at Blytheville and Manila were regulated by and dependent upon the Memphis market where the cotton was stored for sale; (3) the answer of the witness did not relate to the Blytheville and Manila markets alone, lint included the Memphis market as well.

It is finally and earnestly insisted that the answers of the jury to the interrogatories submitted were not sufficiently definite to form the basis of the jury’s verdict, and that they are in conflict with the general verdict.

The interrogatories were submitted for answers by the jury at the request of appellant, and there were three of these. The first required the jury to say whether the appellant was guilty of negligence in the sale of the cotton; and the jury answered, “yes.” The second directed the jury to find, if appellant was found guilty of negligence, at what price the cotton could have been sold, and when. The jury answered, “At twenty-five cents per pound, on the day when it was ordered sold. ’ ’ The third interrogatory required the jury to find what quantity could have been so sold; and the jury answered, “11,388 pounds.”

The court submitted two additional interrogatories over the objection of appellant. The first of these, which was numbered 4, asked what the amount of appellant’s account was on the day appellee ordered his cotton sold; and the jury answered “$2,500.” The next interrogatory, which ivas numbered 5, prepared by the court, asked what the last five bales of cotton shipped to appellant sold for; and the jury answered, “$221.18.” Appellee’s attorney then stated that he did not question appellant’s account, and the jury returned a general verdict in favor of appellee for $2,847, “less his account with the plaintiff at the time the cotton was ordered sold,” and upon this general verdict and the answers to the interrogatories the court rendered judgment in favor of appellee for the sum of $250, this being done after appellee had entered a remittitur in the sum of $318.18.

We do not agree with counsel for appellant that the verdict of the jury was so uncertain that no proper judgment -could be entered thereon. We think, when this verdict is read in connection with the answers to the interrogatories and the general verdict and the undisputed and admitted facts, no error prejudicial to appellant was committed in rendering judgment for appellee for $250. In the first place, it does not lappe-ar that the jury took into -consideration the bale of cotton sold February 6,1920, at forty-cents per pound, about which there was never -any dispute. The answer to interrogatory No. 5 gave the proceeds of the five bales of -cotton shipped in 1921 at $221.18. There was no controversy about this item.

In answer to interrogatory No. 4 the jury answered that appellant’s account on the day appellee ordered the cotton sold was $2,500. This was the amount of money advanced to appellee, but did not include interest, or the commissions on the sales, nor the carrying charges, such as storage and insurance, and it was for this reason that appellee remitted $318.18 of the judgment, this sum being in excess of those items.

Had the sale been made when the jury found that it might have beén made at twenty-five cents per pound, the proceeds of the sale would have more than paid appellant the sum then due it, including interest and charges, and if interest were calculated from that day it would only result in increasing the amount of appellee’s judgment.

Under the facts recited, we think the account may be-stated from the general verdict and the answers to the interrogatories as appellee has stated it in his brief, to-wit:

March, 1920 — To cash advanced to defendant.................. $2500.00

March, 1920 — By 11388 lbs. cotton at 25c......................$2847.00

Obt., 1920 — By 5 bales, net.................................................. 221.18

Balance due defendant.......................................................... 568.18

$3068.18 $3068.18

From this balance of $568.18 a remittitur was entered and judgment was rendered for the balance then remaining of $250. In other words, appellee has removed all uncertainty by resolving all doubts against himself and entering a remittitur for a sum sufficiently large to cover all interest and carrying charges which appellant might claim under any circumstances.

The case of Russell v. Webb, 96 Ark. 190, was a suit in ejectment, and the verdict returned was meaningless except when read in connection with a survey of the land which was in evidence. In upholding the judgment pronounced upon this verdict and which could have been prepared only by reference to this survey, the court said: “A verdict should be definite and certain and free from obscurity, but it is not necessary that there should be any absolute precision in the wording of the verdict. If the meaning of the jury can be clearly collected from the verdict, it ought not be set aside. It is the settled rule that the verdict should be construed liberally, with the view of ascertaining the meaning of the jury and supporting their verdict. And if the issue presented by the pleadings has been substantially decided by the jury, and their meaning can be satisfactorily collected from their v-ordict, then it is the duty of the court to mould it into proper form by its judgment.”

Under that rule, as applied here, we think it clearly appears that the jury found for appellee in a sum at least equal to the judgment rendered.

Upon a consideration of the whole case we think no error prejudicial to appellant was committed, and the judgment of the court below is therefore affirmed.


author: Per Curiam.

text:
    Margay Oil Corporation v. Applegate.
    Opinion delivered June 22, 1925.
    Appeal and error — former appeal — law of case. — ;W'h©re a cause is submitted on the abstract and brief filed on the former appeal, it •being conceded that only questions decided on the former appeal •are involved, the judgment of the lower court entered in pursuance of the order of this court will be affirmed; the decision on the former appeal being the law of the case.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Bose, Hemingway, Cantrell ■& Loughborough, for appellant.

      H. W. Applegate, Attorney General, and Sam M. W ass ell, of counsel, for appellee.
   Per Curiam.

On the former appeal in this case the decision, rendered February 2, 1925, reversed the decree of the chancery court and remanded the cause for further proceedings not inconsistent with the opinion, and on the remand there was a judgment in favor of appellee, against appellant, for recovery of the sum of money found to be due under the law as declared by this court. An appeal has been prosecuted to this court, but the case is now submitted upon the abstract and brief filed on the former appeal, it being conceded by the attorneys on both sides that the questions decided on the former appeal, and none other, are involved on the present appeal. That being true, an affirmance of the judgment below necessarily results from a consideration of the case on the present appeal. Our decision on the former appeal 'became the law of the case, and is a final ladjudication of the rights of the parties.

Decree affirmed.