author: Wood, J.

text:
    Chicago, Rock Island & Pacific Railway Co. v. Sims.
    Opinion delivered March 21, 1927.
    1. Carriers — carrying passenger beyond station — evidence.—In •an action against a railway company for injuries to the health of a passenger walking to her destination over a wet, muddy road at night, after being carried beyond her station and brought back, plaintiff’s testimony that she had made arrangements with her son-in-law and daughter to meet her held not inadmissible as hearsay; being a statement of facts explaining how she knew of arrangements with them to transport her to destination.

      2. Carriers — negligence.—Testimony held sufficient to sustain verdict for passenger against railroad company on issue of negligence in allowing her to board train without informing her that it would not stop at her station.
    3. Carriers — duty to notify passenger of inability to stop— INSTRUCTIONS. — In an action against a railway company for injuries to a passenger resulting from its failure to stop its train at her station, instructions that it was the duty of defendant’s employees to notify plaintiff, when she undertook to board the train, that it did not stop at her station; held authorized by evidence.

      4. CARRIERS — FAILURE TO NOTIFY PASSENGER — DAMAGES.—Failure of defendant railway company to notify plaintiff, when she undertook to board the train, that it did not stop at her station, held to entitle her to recover the damages proximately caused thereby.
    5. Carriers — modification of instructions. — In an action for injuries to passengers as the result of a failure to stop the train at her station, refusal of defendant’s request for instructions that the conductor was not required to stop the train there, though he and brakeman promised plaintiff to do so, if it was not scheduled to stop, and that it was plaintiff’s duty to find out whether it stopped there before boarding the train, and giving such instructions as modified by the provisos, “or had not been accustomed to stop there,” and “unless she already had this information” held not prejudicial error.
    6. Carriers — damages excessive when. — A verdict for $400 for injuries to a passenger carried beyond her station, and thereby forced to walk over a wet road at night, held excessive by $200, in absence of proof that it was necessary to take the walk that night.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      George B. Pugh, for appellant.

      I). 1). Glover} for appellee.
   Wood, J.

This action was instituted by the appellee against the appellant to recover damages for personal injuries. The appellee alleged that she was a passenger on appellant’s train from Reyburn to Opitz; that the appellant, through the negligence of its agents, servants and employees, carried her by her destination, which was Opitz, on to Haskell, and that, after some delay at Haskell, the appellant brought her back to Opitz. On the occasion mentioned the appellant was going to Opitz, a station on appellant’s line, to visit a sick man who lived about two miles from Opitz; that, on account of the delay occasioned by being carried by her station, when she finally reached Opitz it was night-time, and she could make no arrangements for transportation to the home of the sick man, and had to walk there, over a road that was wet and muddy, causing her to be ill, and resulting in damage-to her in the sum of $1,500, for which she prayed judgment. The answer was á denial of all the material allegations of the complaint.

Tie testimony, giving it its strongest probative force in favor of the verdict, is substantially as follows: The appellee was 64 years of age, and had been afflicted for about two years with high blood pressure and a nervous ailment. High blood pressure is not itself a disease, but a symptom of some other disease. Any exercise on the part of a persSn 64 years old would elevate the blood pressure and increase the nervous condition. Excitement and exercise are injurious to a person having high blood pressure. Absolute rest, so far as possible, is essential to one in that condition. On the occasion of the alleged injury the appellee was a passenger on appellant’s train from Reyburn to Opitz, going to" see a sick man by the name of Westbrook, who was related to her family. He was sick unto death, and died during this illness. Appel-lee had been going there before this visit to him. A nephew of the appellee by marriage was with her. When the train stopped at Reyburn the auditor came out to receive them, and asked where the appellee was going. She replied “Opitz,” the auditor said “Opitz,” and the appellee replied, “Yes sir.” ' The auditor then took, appéllee by the arm, led her up the steps, and she went in the car and took her seat. Her nephew was going to Haskell. He got on the train behind the appellee. After “some little bit” the train official came along and asked appellee where she was going, and she told him to Opitz, and he took her fare to Opitz, 28 cents. He went on, and, after “some little bit,” came back and said, “I can’t put you off at Opitz.” The appellee protested, and told the official that she was going to see a sick man, and it would be after dark if they took her on to Haskell. They carried her on to Haskell, and there appellee tried to get some connection with her folks by telephone, but could not do so. The appellant kept appellee at Haskell about an hour, and 'then brought her back to Opitz. When she arrived at Opitz it was dark. After getting off the train, appellee went up to Mrs. Opitz’ house to ’phone.to see if she could get in touch with her son-in-law, who lived in the neighborhood of the sick man, but she could not get him. Then she went to a man’s house by the name of Smith, and tried to ’phon,e her son-in-law from there, hut failed. They had a telephone at the sick man’s home, hut had plugged the same, as he was very low. Appellee was accompanied by her nephew. It was dark, had been raining, and was muddy. If appellee had been put off at Opitz, as she contemplated, she would have had some one to meet her there. After the train had passed her people had gone to the sick man’s house to sit up with him that night. Appellee had had high blood pressure for about two or three years. Before this occurred she had been some better. The walk she had to take exhausted heir. She had to give up, and was nervous, and had to go to bed shortly after she arrived at the house of the sick man. Since then her condition has been a whole lot worse. She has been reduced in weight, and had been, treated ever since, and had to take medicine all the time. She suffered pain on account of the walk. If appellant’s trainmen had told her when she started to get on the train that they could not put her off at Opitz, she would not have boarded the train at all.

Appellee’s nephew corroborated substantially the testimony of the appellee as above set forth, and, in addition, he testified that the train they boarded at Eeyburn that day was being run in the motor car’s place. It was not a fast train, and stopped anywhere. It was a dark night, the road was muddy, and holes were in the road. When they arrived at Westbrook’s, that night, the appel-lee was “played out” and had to lie down. On cross-examination this witness testified that he had been going to Opitz every Sunday night for a month. He knew that the train would stop there, whether it was scheduled to stop or not. ' The train that evening was making the same connection that the motor-car did. It would have required about a minute or two to put the appellee off at Opitz.

The conductor of the appellant’s train on this occasion testified to the effect that it was not his regular run. It was a local passenger train on this run, because the motor-car was being held for repairs. This train was runing on the motor-car schedule. It was supposed to stop at every place that the motor-car stopped. Witness was standing right there on the platform when the appellee got on, and he had a man there whose business it was to load the passengers. It was the brakeman’s duty to load the passengers on the proper train, and it was his duty, if the train didn’t stop at Opitz, to keep the appel-lee from getting on for that station, and the brakeman did not do this. Appellee got on. The train should have stopped every place the motor-car stopped. Opitz was not a regular stop, but witness stopped the train as an accommodation for the traveling public. It would have taken about five minutes to stop and start the train. This witness stated that he told appellee, when she told him she wanted to go to Opitz, that Opitz was not a stop for that train, and the best that he could do for her would'be to take her on to Haskell and to return her to Opitz on the next train, and that he would only charge her the one •fare from Beyburn to Opitz. Witness stated that the appellee said “All right,” but requested witness to stop at Opitz, if possible, and witness told appellee he would do so if he could, but he looked at his time card and found that he was making a close connection with another train, and the best he could do was to carry her on to Haskell and bring her back.

The brakeman testified, and corroborated the testimony of the conductor of the train. He testified that the train was not scheduled to stop at Opitz, and they could not stop on that particular day for accommodation because the train was late, and they had to make connection at Haskell with two other trains. He denied that this particular train had stopped at Opitz, and denied that the motor-car stopped there.

Witnesses Mr. and Mrs. Opitz testified' that Mrs. Sims came to their house on the night mentioned to get transportation to Westbrook’s, but they were unable to take her. One of them also testified that it was suggested to appellee that she might get a car over there at the church, where they were having a singing.

Tlie appellee, over the objection of the appellant, testified that she had made arrangements with her son-in-law and daughter, who were going back about that time, to meet her at Opitz, or to telephone them. They had told her at any time she would come, get on the train and telephone, they would come to meet her. After the train didn’t stop at Opitz, appellee’s daughter went on over to the sick man’s house, and, when appellee got to the sick man’s house, her daughter was there.

The court instructed the jury, in effect, over the objection of appellant, that it was the duty of the appellant’s agents, servants and employees in charge of the train to have notified the appellee, when she undertook to board the train, that it did not stop at Opitz, unless they intended to stop for her to get off there, and, if they negligently failed to perform that duty and appellee was damaged by reason of their negligence in failing to stop the train and let her off, the verdict should be in favor of the appellee. The court refused appellant’s prayer for a directed verdict, to which appellant duly excepted.

The appellant asked the court to instruct the jury, in effect, that, if the train was not scheduled to stop at Opitz, the conductor-was not required to stop the same there, even if the conductor and brakeman had promised the appellee to do so. The court granted prayers to this effect, after modifying same, and instructed the jury, in effect, that the conductor was not required on this occasion to stop the train at Opitz if the same were not scheduled to' stop there or had not been accustomed to stop there. The appellant asked the court to further instruct the jury that it was the duty of the passenger to find out whether the train stopped at a given destination before boarding the train. The court, over the objection of appellant, modified this instruction, and instructed the .jury that it was the duty of the appellee, as a passenger, to inquire where the train stopped, unless she already had this information beforehand. -The jury returned a verdict in favor of the appellee in the sum of $400. Judgment was entered in her favor for that sum, from which is this appeal.

1. It was not error to permit the appellee to testify that she had made arrangements with her son-in-law and daughter to meet her at Opitz; that they told her to telephone them and they would come to meet her. This was not in the nature of hearsay testimony, but was the statement of facts, explanatory of how she knew she had made arrangements for them to transport her to her destination.

2. The undisputed testimony by appellant’s own conductor is that it was the duty of appellant’s brakeman not to permit the appelleé to hoard the train at Rey-burn for Opitz if the train was not allowed to stop at the latter station. The testimony shows that the brakeman did this after the appellee had notified the officials that she wished to stop at Opitz. The negligence in this particular consisted in' allowing the , passenger then to go upon the train without informing her that the train would not stop at Opitz. It is unnecessary to discuss the testimony on the issue of negligence. The testimony is sufficient to sustain the verdict on that issue:

3. The court did not err therefore in giving appel-lee’s prayers for instructions telling the jury that it was the duty of appellant’s employees in charge of the train to have notified the appellee, when she undertook to hoard the train, that the train did not stop .at Opitz. The undisputed evidence, as we have seen, shows that appellee had notified appellant’s employees before she boarded the train that she wished to stop at Opitz. In view of the undisputed testimony proving negligence on the part of the appellant, which was the proximate cause of some injury and damage to appellee, she was entitled to recover. There was no prejudicial error in the rulings of the court in refusing appellant’s prayers for instructions as asked and in modifying and giving the same as modified.

4. While appellee was entitled to recover some damages, yet, under the circumstances developed by the proof, the verdict was clearly excessive. It occurs to us, from the amount of the judgment, that the jury enhanced the damages beyond what she was entitled to receive by reason of the fact that the night was dark and the road was muddy. But there is nothing in the proof to warrant the seemingly irresistible impulse of the appellee to walk the distance between Opitz and where her sick friend lived, in the dark and through the mud, rather than to wait overnight at Opitz and make the journey the next morning, under more favorable conditions.

The proof does not disclose that her presence in the sick-room that night would have been even necessary, much less indispensable. To be sure, appellee was entitled to compensation for the actual damages which she sustained by reason of appellant’s negligence, but, under the proof, we are convinced that the sum of $200 would be most liberal compensation for all her actual damages, both physical and mental, growing proximately out of the negligence of appellant in permitting her to board its train for Opitz.

The judgment will therefore be reversed, and remanded for a new trial, unless appellee enters a remit-titur in ten days of $200. In that case the judgment will be affirmed for that sum.


source: Caselaw Access Project

license: Public Domain

text:
    Missouri State Life Insurance Company v. Brooks.
    Opinion delivered March 21, 1927.
    1. Insurance — payment of premium — jury question. — In an action on a life insurance policy, under evidence that insured remitted a cash payment and extension note for the balance of the pre-' mium, in conformity with the insurer’s offer to extend time of payment of premium, the issue as to whether the insurer received the cash and note before the policy lapsed for nonpayment of the premium was properly submitted to the jury.
    2. Appeal and error — conclusiveness of verdict. — A verdict on conflicting evidence is conclusive on appeal.
    3. Insurance — forfeiture—waiver—In an action on a life policy, evidence from which the jury might have found that, after lapse of a policy for nonpayment of the second premium, the insurer received cash in part payment thereof and that insured mailed an extension note for the balance, together 'with an application for reinstatement, which were retained by the insurer for several months without complaint until after insured’s death, held to present the issue ^whether the insurer waived a forfeiture of the policy for nonpayment of the premium.
    4. Insurance — forfeiture—estoppel.—Any agreement, declaration or course of action on the insurer’s part which leads insured to believe that, by conformity therewith, a forfeiture will not be incurred, followed by conformity therewith, will estop the insurer from insisting on a forfeiture.
    Appeal from Hot Spring’ Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      Allen May and Rose, Hemingway, Cantrell S Lough-borough, for appellant.

      D. D. Glover, for appellee.
   Wood, J.

On July 2, 1924, the Missouri State Life Insurance Company, hereafter called the appellant, issued its policy in the sum of $1,000 to one Ora Brooks on which she paid the annual premium of $17.42. The next premium on the policy was due July 2, 1925. T. B. Brooks, the husband of Ora Brooks, also carried a policy with the appellant. These policies were taken out at Maugham, Louisiana, where they lived. The agent of the appellant at that place was Alex Watson. In May, 1925, Brooks made application to appellant through its agent at Mangham for permission to pay a part of the next premium due on the polic3r of Ora Brooks and to give a note for the remainder. On May 14, 1925, the agent wrote the company as follows:

“T. B. Brooks wishes to give his note to cover premiums on policies of himself and wife, Ora Brooks. His personal address is Malvern, Arkansas. ” In answer to this letter the company wrote Ora Brooks on May 19 to the effect that she would have until August 2, 1925, to make settlement of'the premium and inclosed in the letter an extension note for her to sign in the sum of $13.46, which note was to become due January 22, 1926, and appellant requested in the letter that, if she was unable to pay the amount of the premium in cash on August 2,1925, she sign the note and inclose a remittance of $3.96. T. B. Brooks signed the extension note for his wife, and returned it to the company in May, 1925. This note recites, in part, that ‘ ‘ although the annual premium due the second of July, 1925, had not been, paid, the insurance was continued until midnight of the due date of the note, January 2, 1926.” It further recites that, if the note were paid on or before that date, such payment, together with the cash, will then be accepted by the company as a payment of the premium, and that all rights under the policy would be continued, the same as if the premium had been paid when due, and, if the note were not paid when due, it should cease to be a claim against the maker, and the company would retain the cash as a compensation for the earned premium for the extended insurance granted to the assured up to the date of the maturity of the note. The company kept the note -from May until August 21, 1925. A letter was written to the company by Brooks on August 15, 1925, in which he states that he is inclosing money order for $6.50 in half payment of Ora Brooks’ policy, and that he had overlooked the fact that the premium was due July 2, -and thought it was due August 2, and that he would sign up his notes and his wife’s note and would pay in full with interest on October 15, 1925. On August 21, 3925, the company wrote Mrs. Brooks, stating in substance that it had received the remittance of $3.96 in cash, with the signed note, • and that it was sending her a new note to be signed by her, instead of her husband, and also inclosing the original note. The letter further stated as follows: “Since this policy is in a lapsed condition at this time, we are inclosing an application for reinstatement. This matter will have our immediate attention upon receipt of the application for reinstatement and the note properly signed and witnessed. Kindly give the above your immediate attention.” On the same day the company also wrote Brooks, in which letter it stated that it had received the remittance from him of $6.50 and that it was deducting $3:96 for the policy on the life of- Mrs. Brooks, leaving the sum ofo$2.24 to apply on Brooks’ individual policy. In addition to the $3.96 that had been sent in May, the $6.50 was sent to the appellant to pay on the policy of Mrs. Brooks. There is a postal money order in the record, dated August 12, 1925, for $6.50.

Mrs. Ora Brooks died on November 1, 1925. After her death, Brooks reported the same to the appellant. Appellant sent to Brooks a check for $3.96 on the First National Bank of St. Louis, dated Oct. 21, 1925, payable to the order of Ora Brooks. Brooks received this check between the 6th and 8th of November. The appellant also, on the 28th of December, 1925, wrote Brooks a letter in which it inclosed to him checks for $13.96 and $3.96, which he, at the suggestion of his counsel, had sent the appellant after the death of Ora Brooks, and in this letter the appellant stated that it had sent its check for $3.96 in the letter of October 26, 1925, prior to the death of Mrs. Brooks, and its files' in the matter were closed at that time, and appellant further stated that the policy had no value whatever and that it was not liable thereon. There were cashiers’ checks in the record on the First National Bank at Malvern, Arkansas, dated December 21, 1925, for $13.96 and $3.96, respectively, in favor of the appellant. These checks, as stated, were sent by Brooks to the appellant. The company had never paid anything on the policy.

This action was instituted by T. B. Brooks, hereafter called appellee, as administrator of the estate of Ora Brooks, against the .appellant, to recover on the policy. The appellant answered, denying liability, and the above are substantially the facts in favor of the appellee, which the testimony, giving its strongest probative force, tended to prove. The cashier of the appellant testified in substance that the second annual premium on Mrs'. Ora Brooks’ policy was due July 2, 1925; that he wrote on May 14, 1925, as above set out, notifying the appellant that Brooks wished to give his note to cover the premium on the policies of himself and wife, and he identified the further correspondence set out above between the appellant and Brooks. He .stated that the policy on the life of Mrs. Brooks lapsed on August 2,1925, and that the first appellant heard from any one concerning the policy was the letter of August 15, 1925, written by appellee to the appellant, inclosing the money order for $6.50. This letter was thirteen days after the expiration of the period of grace. This letter also contained the extension note which was signed by T. B. Brooks. The note was returned in the appellant’s letter of August 21, 1925, referred to above, and appellant had heard nothing further from either of them with reference to Mrs. Brooks’ policy. After a policy lapsed it required an application for reinstatement submitted to the company, which could only be approved by a committee'appointed at the home office. Appellant sent letters to Mrs. Brooks on September 8, 1925, and.again on September 18, 1925, calling her attention to the fact that the appellant had not received the new note which was to be signed by her and the application for reinstatement, and notifying her that her policy was in a lapsed condition, and requesting her to give an early reply advising the company as to what she intended to do. The witness stated that a properly executed note by Ora Brooks and her application for reinstatement was never received at the home office, and therefore the policy was never really reinstated. The $3.96 which Ora Brooks had sent to the appellant was not accepted by the appellant as a consideration for reinstatement, but was held by it awaiting a properly signed note and application for reinstatement. The money was not received at the home office until August 17, 1925, and appellant returned the same to Mrs. Brooks October 26, 1925, by a check payable to her order, issued from the home office of the appellant, in this letter of October 26, 1925.

The court told the jury, in its first instruction, in substance, that, if it found that Oria Brooks, during her lifetime, complied with the conditions of the policy, and that the same was a -valid policy at her death, the verdict should be in favor of the plaintiff, appellee. In other instructions the court further submitted to the jury the issue as to whether or not tlie appellant had accepted in cash a part of the second premium due on the policy and an extension note for the balance, after the policy lapsed for the nonpayment of the second premium, and told the jury, if they so found, their verdict should be in favor of the plaintiff, appellee. The court submitted to the jury the issue as to whether or not, after the time for the payment of the second premium, the appellant had next waived a forfeiture of the policy by acceptance of a . part of the premium in cash and the signing’ and returning to the appellant of an extension note for the balance of the premium in accordance with appellant’s instructions. Instruction No. 5 is as follows:

“You are instructed that, if you should find that the policy sued on had at any time lapsed, and you further find that the defendant company sent her an application for reinstatement, and that she filled it out, as required by the forms sent her, and that she paid part of the premium in money, and signed a note for the remainder of the premium, and that it was accepted by it, then you are told and instructed that the plaintiff would be entitled to recover in this suit.”

The appellant duly excepted to the rulings of the court in the granting of appellee’s prayers for instructions and in refusing the appellant’s prayer for a directed verdict. The jury- returned a verdict in favor of the appel-lee in the sum of $1,000. Judgment was entered in appel-lee’s favor for that sum, from which judgment is this appeal.

3. The provision in the policy as to reinstatement is as follows: “If any premium is not paid on the date when due or within the period of grace, and this policy has not been surrendered, the company will reinstate the policy of said due date at any time thereafter, upon evidence of insurability satisfactory to the company, and payment of all arrears of premium, with interest at the rate of six per cent, per annum.” •

The jury might have found from the testimony, supra, that the appellant, as early as May 19, 1925, offered to extend the time of the payment of the second premium if the assured would remit the sum of $3.96 and sign an extension note for the balance of $13.96, due January 2, 1926; that the assured attempted to comply with this request by remitting the cash of $3.96 and a note signed by her husband for the balance. There is a decided conflict in th'e evidence on this point. The testimony of the appellee tends to prove that he signed the note for his wife, which the company sent to her to be signed, and returned the same, and that this was done in May, 1925. His testimony and the testimony of his daughter tends to prove that the note was signed by him and sent back immediately. The testimony of the appel-lee also tends to prove that he mailed to the appellant the sum of $3.96 in cash in compliance with the appellant’s request about that time. The testimony of appellant’s cashier tends to prove'that, after writing the letter of May 19, 1925, the appellant did not hear anything further concerning Ora Brooks’ policy until August, 1925. While the cross-examination of the appellee disclosed some indefiniteness and uncertainty as to whether the money was sent by postoffice order, check or cash, he finally testified that he sent $3 in greenbacks and the rest in stamps and through the mail about the time he mailed the letter with the extension note signed b}7 himself for his wife, which was in May. The jury therefore might have found from the testimony on behalf of the appellee that the appellant received a part of the second premium in cash and the extension note for the balance before the policy lapsed because of the nonpayment of premium due August 2, 1925, and that the policy had not lapsed, and was therefore not forfeited at that time. The court correctly submitted this issue to the jury.

2. The jury might have found, from the testimony of the appellee, that the appellant kept the first extension note signed by him for his wife from May, 1925, till August, 1925, before it requested that another note be executed by Mrs. Brooks individually, and before it requested her to sign an application for reinstatement. The testimony of the appellee tends to prove that this request of the appellant was promptly complied with by Ora Brooks signing the new extension note and application for reinstatement, and by having the same witnessed, and then mailing the same to appellant in the self-addressed envelope furnished Mrs. Brooks for that purpose. In the meantime, on the 15th of August, 1925, the appellee wrote to the appellant remitting the sum of $6.50, which he states was' half the premium on Ora Brooks’ policy. The appellant, in its letter of August 21, 1925, acknowledged the receipt' of that amount and credited the sum of $3.96 on premium due on Ora Brooks ’ policy and the balance on T. B. Brooks’ policy. In this letter of August 21, 1925, the appellant likewise admits that it had received the note signed by Brooks for his wife, and states that it was returning a new extension note and application for reinstatement to be signed by Mrs. Brooks, and that the policy was in a lapsed condition at that time. Again the testimony is conflicting. Brooks and his daughter testified that Ora Brooks signed the new extension note and application, and that same was witnessed as requested by the appellant, and that the letter inclosing this new extension note and application was properly mailed to the appellant in an envelope self-addressed, while the appellant’s cashier testified that neither the note nor the application for reinstatement had ever been received at the home office. And, again, appellant’s cashier testified that, on September 8, 1925, appellant properly mailed a letter addressed to Mrs. Brooks, notifying her that it had not received the extension note and application for reinstatement signed by her, and requesting her to sign and return the same immediately, and another letter to the same effect on September 18, 1925, and, having received no answer, the appellant wrote the letter of October 26, 1925, to Ora Brooks, inclosing to her a check for $3.96, and concluded by stating that appellant would be glad to reinstate her policy upon receiving satisfactory application for reinstatement, together with a settlement of arrears. But the appel-lee, Brooks, testified concerning these letters that, after he had written the letter of August 15, 1925, he never heard from the appellant any more. He stated that, prior to the death of his wife, there was no complaint from the appellant concerning the extension note she had sent to the company; that she died believing that her policy was valid. Appellee testified that the appellant had never returned the $6.50 which he had sent to the appellant to pay on Mrs. Ora Brooks’ policy. But the testimony for the appellant tended to prove that the appellant accounted for that amount by crediting $3.96 on the policy of Mrs. Brooks and the balance on T. B. Brooks’ premium.

Now, the jury have settled the above conflicts in the testimony in favor of the appellee, and the verdict of the jury on these issues of fact is conclusive here. The jury might have found from the above that, after the time had elapsed when the payment of the second premium was due, the appellant received of Ora Brooks the sum of $6.50 in cash as a part of the premium due on her policy, and that she executed an extension note for the balance, which would not be due until January 2, 1926; that she inclosed this extension note, with the application for reinstatement, in an envelope self-addressed to the appellant, which it had sent her for that purpose, and stamped and mailed the same, and that appellant made no complaint thereafter, as long as she lived, that the extension note had not been properly signed, and that Ora Brooks died believing her policy was valid and in force; that the $3.96 which Ora Brooks had sent in cash to the appellant in May as a part payment on the second premium was not returned by appellant and received by the appellee before the death of Mrs. Brooks, and that appellant had never returned the $6.50 in cash which the appel-lee had sent appellant in the letter of August 15, 1925, and that the extension note signed by the appellee and sent through the mail to the appellant had never been returned to the appellee.

Therefore it was for the jury, under the evidencé, to determine whether or not the policy had lapsed because of the failure of Ora Brooks to pay the second premium, and whether or not the rights of the appellee thereunder, as administrator of Mrs. Brooks, had been forfeited. • The court submitted these issues under instructions in which {here are no prejudicial errors to the appellant.

In American Life Association v. Vaden, 164 Ark. 75, 261 S. W. 20, we said: “The doctrine is firmly established by the highest courts "in this country, and approved by us in numerous cases, that ‘forfeitures are not favored in law,’ and that ‘courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, • on which the party has relied’ and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop, and ought to estop, the company from insisting on a forfeiture, though it might be claimed under the express letter of the contract. ’ As is said in 14 R. C. L. 1181, § 357, “waiver of a forfeiture, though in the nature of an estoppel, may be created by acts, conduct, or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture.” See also American Ins. Union v. Benson, 172 Ark. 1043, 291 S. W. 1007.

The above doctrine is applicable to the facts as found by the jury under the evidence. There was evidence to sustain the verdict. The trial court therefore did not err in refusing appellant’s prayer for a directed verdict, and its judgment entered in favor of the appel-lee is correct, and it is affirmed.


text:
    American Railway Express Co. v. Reeves.
    Opinion delivered March 21, 1927.
    1. Limitation of actions — commencement of suit. — Under Crawford & Moses’ Dig-., § 1049, both the filing of a complaint and the issuance of summons thereon are necessary to the commencement of an action.
    2. Limitations of actions — transportation act. — A cause of action under the Transportation Act (Act Cong. Feb. 28, 1920, § 206a) which accrued in 1920, was barred by limitation where summons was not issued until 1925.
    Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    reversed.

      E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      T. A. Turner and Denver L. Dudley, for appellee.
   Wood, J.

On the 2d, 13th and 23d of February, 1920, J. I. Kratzmeyer delivered to the American Railway Express Company, hereafter called Express Company, three separate lots of furs for shipment from points in Arkansas to St. Louis, Missouri. On January 15, 1921, an action was instituted in the circuit court styled “J. R. Reeves, trustee of the estate of J. I. Kratzmeyer, bankrupt, plaintiff, against the Express Company, defendant.” The complaint alleged that Kratzmeyer, oir May 8, 1920, had filed a voluntary petition in bankruptcy, and that J. R. Reeves had been appointed trustee by the creditors of Kratzmeyer. It was alleged that there was a loss in the shipment caused by the defendant in. the total .sum of $632.25, fox which the plaintiff prayed judgment. An answer was filed on September 7, 1921, denying the material allegations of the complaint. On September 6, 1921, the attorney for the plaintiff filed a motion in which he suggested that J. R. Reeves had departed this life and that J. D. .Reeves had been appointed trustee to succeed him, and moved that the cause be revived in the name of J. D. Reeves, trustee. On September 5, 1923, the Express Company filed a motion to dismiss the suit, alleging that the real party in interest had not. sued as plaintiff. 'Attached to the motion was a certified copy of the record of the Federal court of the Eastern District of .Arkansas, showing that no trustee in bankruptcy had been appointed. The court heard the motion on the same day, September 5, 1923/ and sustained the motion, and dismissed the causé as to J. D. Reeves, trustee. The court noted in its order that "the complaint was amended by making J. I. Kratzmeyer a plaintiff, and the cause continued for service.”

On the 12th of February 1925, a summons was issued out of the Craighead Circuit Court commanding the sheriff to summon the express company to appear at the next September term of the First Division of the Craig-head Circuit Court, Jonesboro District, to answer the complaint of J. D. Reeves, trustee of the estate of J. I. Kratzmeyer, bankrupt, and J. I. Kratzmeyer. The Express Company was duly served with summons on February -13, 1925. On March 24, 1925, the Express Company appeared and moved the court to require the plaintiffs to make their complaint more specific. On the 5th of September, 1925, an answer was filed, denying the material allegations of the complaint and setting up in defense the statute of limitations. On September 8, 1925, the Express Company filed a motion setting up the various steps that had been taken in the cause, and moved the court to declare that the action was instituted on February 12, 1925, and that same was barred by the statute of limitatioiis, and therefore asked the court to enter a judgment in its favor. The plaintiff thereupon moved the court to enter a judgment in its favor, which request the court granted, and entered a judgment in plaintiff’s favor, from which is this appeal.

The only question presented by this appeal is whether or not the plaintiff is barred from maintaining the action by the statute of limitations. The statute of limitations applicable to appellees ’ alleged cause of action which accrued on the 2d, 13th and 23d of February, 1920, § 206 (a), (Fed. Statutes Ann. Supplement 1920, Act, approved February 28, 1920. The appellant was being operated under Federal control during the timé the alleged loss occurred. The Government control terminated on March 1, 1920. The statute of limitations, in part, provides as follows: ‘ ‘ Such actions, suits or proceedings may, within the periods of limitation now prescribed by State or Federal statutes, hut not later than two years from the date of the passage of this act, be brought in any court which, but for Federal control, would have had jurisdiction of the cause of action had it arisen against such carrier.” Act of Congress Feb. 28, 1920, § 206 (a), Fed. Statutes Ann. Supplement 1920, page 77).

The contract of carriage under which the shipments were made provides, in part, that “suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.” The record shows that the original complaint in this action was filed January 15, 1921. The appellant moved to dismiss on September 5, 1923, on the ground that the real party in interest had not sued as plaintiff. The court granted this motion on the same day, in the following order: “On this day, September 5, 1923, motion filed to dismiss for defective parties. Motion heard and sustained, and dismissed as to J. D. Reeves, trustee for estate of J. I. Kratzmeyer, bankrupt, as plaintiff. Complaint amended by making J. I. Kratzmeyer plaintiff, and cause continued for service.” The record shows that a summons was issued on February 12, 1925, in which the sheriff was commanded to summon the appellant to answer the complaint against it by J. D. Reeves, trustee of the estate of J. I. Kratzmeyer, and J. I. Kratzmeyer, and to make due return of the summons on the first of September, 1925. The summons was returned duly served February 13, 1925.

As we construe the order of September 5,1923, it was tantamount to the dismissal of the action of J. D. Reeves, trustee for the estate of Kratzmeyer in bankruptcy, and then there was substituted as plaintiff J. I. Kratzmeyer. It was ail original action so far as Kratzmeyer was concerned, and was equivalent to filing’ a complaint on that day by Kratzmeyer against the appellant and continuing the cause for service on the appellant. The summons was issued and served on the appellant as if on an original complaint.

Under our statute, § 1049, C. & M. Digest, a civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon. An action is commenced when the complaint is filed and summons issued thereon. The mere filing of a complaint is not the commencement of a civil action. It takes both the filing of the complaint and the issuance of a summons thereon to commence a civil action. Burleson v. McDermott, 57 Ark. 229, 21 S. W. 222; Railway Co. v. Shelton, 57 Ark. 459, 21 S. W. 876; Wilkins v. Worthen, 62 Ark. 401, 36 S. W. 21; Barker v. Cunningham, 104 Ark. 627, 150 S. W. 153; Clemmons v. Davis, 163 Ark. 452, 260 S. W. 402.

In the last ease the cause of action arose under the Transportation Act, and the appellant in that case contended that the action was barred unless commenced within the two-year period of limitation. We sustained the contention of the appellant, saying:

“In the case of Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477, it was decided that the filing of ¡a complaint does not constitute a commencement of an action, but that a process must also be issued, and that, until then, the running of the statute of limitations is not arrested.” Therefore, in the case at bar, the action of J. I. Kratz-meyer against the appellant was not commenced until the summons was issued on the 12th day of February, 1925. That was more than two years after March 1, 1920. It follows that the trial court erred in not holding that the appellee, Kratzmeyer, was barred by the statute of limitations, land in not entering a judgment in appellant’s favor, dismissing the complaint.

For the error indicated, the judgment is reversed, and the cause is dismissed.


text:
    Pletner v. Southern Lumber Company.
    Opinion delivered March 21, 1927.
    1. Wills — construction—testator’s intention. — The intention of a testator must be ascertained from the language of the will, • and must be given effect unless at variance with the recognized rules of law.
    2. Wills — construction as a whole. — In ascertaining the intention of a testator, the will must be construed as a whole.
    3. Wills — technical words. — Generally,, technical words in a will should be construed in their technical sense.
    4. Wills — presumption..—It is presumed that the testator intended to dispose of his entire estate unless the language of the will shows to the contrary, and that he intends to vest the estate at the earliest possible moment.
    5. Wills — life estate. — A devise to a wife of a homestead with all the stock and household goods for life “and, if that is not- sufficient, out of the remainder of my estate, for her own special benefit,” held to be a devise to her of a life estate in all of the testator’s property, both real and personal, excepting a specific bequest.
    6. Wills — remainder—construction.—A devise to a wife for life with remainder to another and her bodily heirs held to create a fee simple estate in the remainderman after the wife’s death; Crawford & Moses’ Dig., § 1499, relating to fees tail, not being applicable.
    Appeal from Bradley Chancery Court; E. G. TJam-mocl', Chancellor;
    affirmed.

      B. L. Beasley, for appellant..

      Fred L. Purcell, for appellee.
   Wood, J.

This is an action instituted September 15, 1925, by Grillis Pletner, Moree Herring, Catherine McNew and Sam Boh Herring (hereafter called appellants) against the Southern Lumber Company (hereafter called appellee) to quiet the title to a tract of land in Bradley County. John C. Gillis was the owner of the land. He executed a will, which, omitting* formal parts, is as follows: “I wish my wife, Artemus P. Gillis, to have the benefit of the homestead, together with all the stock and household goods, during her life,' and, if that is not sufficient, out of the remainder of my estate for own special benefit. And the one thousand dollars m gold now m the hands of S. W. Godfrey to go to Mary Elmira Godfrey, with the remainder of my estate to the said Mary Elmira Godfrey and her bodily heirs, and should the said Mary Elmira Godfrey die leaving no bodily heirs, I wish that portion of my estate to be turned over to my nephew, John M. Gillis, and his children, of Perry County, Alabama, Marion P. 0.”

. The land in controversy was sold for the nonpayment of taxes for the year 1894, and was purchased by W. B. Watson, who, by mesne conveyances, transferred the same to the appellee. It was alleged in the complaint that the appellants are the bodily heirs of Mrs. Mary E. Herring, who is still living; that the tax sale under which the appellee claims through mesne conveyances is void, and that the deeds based on such sale were likewise void and clouds upon the appellants’ title; that the appellants are the owners of a remainder interest in the lands as the heirs of Mrs. Mary E. Herring; that Mrs. Gillis died in 1911, leaving Gillis Pletner, who was born November 16, 1897; Moree Herring, who was born January 29, 1899; Catherine MeNew, who was born-May 18, 1904; and Sam Bob Herring, born August 12, 1915; that the deeds based on the tax sale be canceled, and that the appellee be restrained from cutting timber thereon, and that they be allowed to redeem the lands.

The answer admitted that John G. Gillis was the owner of the lands and that he executed the will above set forth, which was duly probated. The answer denied that the appellants were remaindermen under the will of Gillis, and denied that they had any right to redeem the land from the tax sale under which the appellee claims title. The appellee alleged that, on August 6, 1902, a confirmation decree was entered confirming the title to the lands in Hackney & Hume, under whom appellee claimed by warranty deed. The appellee, further alleged that the will created a life estate in the lands of Artemus F. Gillis, the wife of John 0. Gillis, and that a fee simple title passed, under the will, to Mary Elmira Godfrey, now Mary E. Herring, who was living at the death of Mrs. Artemns F. Gillis in the year 1911. The appellee further alleged that, before Mrs. Gillis died, she terminated her life estate by selling to Mrs. Mary Elmira Godfrey such estate in* 1897. The appellee further alleged that it, and those under whom it claimed, had paid taxes under color of title continuously since the tax sale in 1895. Appellee alleged .that the appellants had not, before bringing the suit, filed an' affidavit setting forth that they had tendered the amount of the taxes, costs and interest paid by the appellee for the land prior to the tax sale, nor the amount paid by it for taxes since the sale, with interest thereon, and 'had not tendered to the appellee the value of the improvements made thereon, and that same had been refused by the appellee.

There was a stipulation in the record to the effect that Mrs. Mary Elmira Godfrey is the same person as Mollie E. Herring; that Mollie E. Herring and the heirs of her body are the only lineal descendants of John 0. Gillis, the testator; that Artemus F. Gillis was the wife and widow of John C. Gillis; that the lands in controversy were assessed in the name of Mrs. Fannie Gillis, and were forfeited for the taxes of 1894 and sold, in 1895 ; that, in 1897, an agreement was entered into whereby, in consideration for a certain sum of money, Mrs. Artemus F. Gillis sold to Mollie E. Herring, the mother of plaintiffs, all her interest in the estate held by Mrs. Gillis under the will of her husband, and terminated such interest. It was agreed that the appellee acquired title to the land under mesne conveyances from those who purchased at the tax sale, and that the taxes had1 been regularly paid by the appellee on the lands since the sale, and that the lands were wild and unimproved. It was agreed that the record of wills and the confirmation decree should be considered in evidence. It was further agreed that the tax sale was void.

The cause was heard upon the pleadings, the stipulation, the exhibits to the pleadings, and the record and documentary evidence, and the trial court entered its decree in favor of the appellee against the appellants, from which is this appeal:

The following are familiar rules in the construction of wills which have been often recognized by this-court: The intention of the testador must be ascertained from the language of the will, and such intention, unless at variance with recognized rules of law, must govern and ■be given effect. In ascertaining the intention of the testator, the will must be taken and construed as a whole. Technical words used in a will should be construed generally in their technical sense. The presumption will be indulged that the testator intends to dispose of his entire estate in his will, uliless something in the language of the will shows to the contrary. It will also be presumed, in the absence of language to the contrary, that it is the intention of the testator to vest the estate disposed of by the will at the earliest possible moment. See Gregory v. Welsh, 90 Ark. 152, 118 S. W. 404; Fields v. Cline, 161 Ark. 418, 256 S. W. 355; Wooldridge v. Gillman, 170 Ark. 163, 279 S. W. 20; Gaines v. Arkansas National Bank, 170 Ark. 679, 280 S. W. 993.

Mr. Alexander, in his commentary on Wills, vol. 2, page 1408, says: “Practically every will is dictated under the influence of family relationship, and the courts, in construing wills, lay hold of slight circumstances to raise a gift in favor of children rather than impute to the testator the intention of leaving them unprovided for. * * * In every instance all the facts and the provisions of the will are to be considered, and the intention of the testator will prevail if not contrary to the established principles of law and public policy, and such intention is at least inferentially expressed.”

Now, applying these familiar rules to the language of the will under review, it appears that it was the intention of the testator, in the first clause, to dispose of all the “earthly goods of which God had blessed him,” and evidently he used the terms “goods” in the sense of all his possessions, both real and personal. In the first sentence of the second clause he expresses the purpose to give Ms wife, specifically, the homestead, with all the stock and household goods, evidently meaning the livestock, and the personal effects of the household, i. e., all ” personal property connected with the housekeeping. Then, apprehensive that this provision might not he sufficient to properly care for his wife, he concluded the bequest to her as follows: “And, if that is not sufficient, out of the remainder of my estate for her own special benefit.” This provision, made for the benefit of his wife, was' to continue “during her life.”

It occurs to us therefore that the testator intended by this first sentence of the second paragraph of his will to bequeath to his wife a life estate in all hi's property, real and personal, except the one thousand dollars in gold mentioned in the next sentence as a specific bequest to Mary Elmira Godfrey.

This brings us to the construction to be given the second sentence of the second paragraph of the' will, in which the testator makes a specific bequest of $1,000 in gold to Mary Elmira Godfrey, and makes the further devise to her and her bodily heirs of the remainder of his estate. This court has often ruled that, where land is conveyed, or devised, to a person and the heirs of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which, under our statute (§ 1499, C. & M. Digest) becomes an estate for life only in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue'of such devise,, grant or conveyance. Horsley v. Hilburn, 44 Ark. 458: Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950; Wheelock v. Simons, 75 Ark. 19, 86 S. W. 830: McDill v. Meyer, 94 Ark. 615, 128 S. W. 364: Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540; Rogers v. Ogburn, 116 Ark. 233, 172 S. W. 867; Georgia St. Savings Assn. v. Dearing, 128 Ark. 149, 193 S. W. 512; Gray v. McGuire, 140 Ark. 108, 215 S. W. 693; Bell v. Gentry, 141 Ark. 486, 218 S. W. 194; Eversmeyer v. McCollum, 171 Ark. 117, 283 S. W. 379.

But this familiar doctrine cannot have application hrere, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her bodily heirs under the. statute supra. The life estate, as we have seen,, was previously devised to Mrs. Artemus P. Gillis, and the remainder of the estate, after such life estate, was devised to Mary, Elmira Godfrey and her bodily heirs.

If the testator had intended to vest only a life- estate" in Mrs. Mary Elmira Godfrey, to take effect immediately upon the death of Mrs. Gillis, he doubtless would have designated the estate to be thus cast on Mrs. Godfrey as a “life estate” instead of as a “remainder.” After he had carved out of the fee a life estate, and then vested the “remainder” in Mrs. Godfrey, he evidently meant to devise to her what remained of the estate in fee simple, which was all of it. The fee took it all, and there was nothing left to devise. To construe the will so as to vest the life estate in Mrs. Gillis and a life estate also in Mrs. Elmira Godfrey would be to make these clauses of the will repugnant and inconsistent. This could not have been the intention of the testator, and such construction must therefore be avoided in order to effectuate his purpose. Therefore, construing all the provisions of the will, it occurs to us that the testator intended to vest in Mrs. Gillis a life estate at his death, and at that time to vest in Mrs. Godfrey an estate in remainder (using the latter term in its technical sense), and, by so doing, to dispose of his entire estate.

Mr. 'Washburn, in his great work on Beal Property, defines a remainder as “an estate or interest in lands or tenements to take effect in possession or enjoyment immediately upon the termination of a prior estate, which is created at the same time and by the same act or instrument and upon which such first-mentioned estate is made to depend.” 2 Washburn on Beal Property, p. 504. Further along the learned author says: “Whether vested or contingent, it is essential to a remainder * * * and is an imperative rule of law, that it should take effect immediately on the termination of the prior estate, the particular estate and remainder together forming one continuous ownership. * *■ * Prom the doctrine above stated, that the particular estate and remainder form together, when united, but one estate of the extent or duration of the two, it follows that, while ever so many remainders in succession may be carved out of a fee simple if -each is less than a fee, no remainder can be limited after a fee; for, when a fee has once been created, there can be nothing left by way of remainder to give away.”

We are convinced, from a consideration of the language of the whole will, that it was the intent of the testator to vest a life estate, as mentioned, in his wife, Artemus F. Gillis, and the remainder or fee simple' estate in Mary Elmira Godfrey. The term ‘ ‘ remainder, ’ ’ as used in the clause containing the devise to Mary Elmira Godfrey, must be construed in its technical sense to prevent repugnancy and to carry out the manifest intention of the testator to dispose of his entire estate, vesting a life estate in his wife and the remainder in fee simple in Mary Elmira Godfrey. The will, in other words, should be construed in legal effect as if it read, “I give, devise and bequeath to my wife, Artemus F. Gillis, for her life, my entire estate, except $1,000, and, at her death, the remainder to Mary Elmira Godfrey.” If such were the plain language of the will, it would clearly mean that the testator vested a life estate in his wife, Artemus F. Gillis, and in Mary Elmira Godfrey at the same time a vested estate in the remainder, which bequests and devises disposed of his entire estate. Under this construction of the will, the life estate ended with the death of Mrs. Gillis, at which time Mary Elmira Godfrey took the fee as remainderman. As is said in Bell v. Gentry, supra, “we are led to the conclusion announced, not only by a consideration of the language set out above, but by the settled rule of construction, that the law favors the vesting of estates as early as possible, and we think the construction given this will effectuates the intent of the testator.” The undisputed testimony shows that Mrs. Herring is still living. She is the only party in interest, and is not made a party to this action. The conclusion we have reached makes it unnecessary and improper to discuss, much less to decide, the other questions presented in the interesting briefs of counsel. The decree of the trial court is in all things correct, and it is affirmed.


author: Smith, J.

text:
    Simpson v. First National Bank of DeWitt.
    Opinion delivered March 21, 1927.
    Mortgages. — registration in wrong district. — Where plaintiffs, residing in the Northern District of Arkansas County, executed chattel mortgages which were recorded in the Southern District, defendant mortgagee was not liable for the statutory penalty under Crawford & Moses’ Dig., § 7396, for failure to satisfy them when paid, as the mortgages constituted no lien on plaintiff’s property, even as against persons with actual notice.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Botts d> O’Daniel, for appellant.

      John L. Ingram, for appellee.
   Smith, J.

Appellants are farmers and stock raisers, and resided in the Northern District of Arkansas County. On August 13,1921, they borrowed $433.90 from the First National Bank of DeWitt, and, to secure the payment thereof,_ executed a chattel mortgage on a lot of cattle owned by them. Payments were made on the indebtedness thus secured, and upon each renewal of the note a new chattel mortgage was taken. In this manner a fifth chattel mortgage to the bank was executed on June 23, 1923, to secure the balance then remaining unpaid. In each case there was a failure to cancel and satisfy of record the prior mortgage upon the execution of the subsequent one, so that, -when the indebtedness secured by the last mortgage was paid, none of them had been satisfied of record.

Appellants made demand that the bank satisfy and cancel of record these mortgages, pursuant to § 7396, C. & M. Digest. This section reads as follows: “If any person thus receiving satisfaction do not, within sixty days after being requested, acknowledge satisfaction as aforesaid, he shall forfeit to the party aggrieved any sum not exceeding .the amount of the mortgage money, to be recovered by civil action in any-court of competent jurisdiction. ’ ’ The demand to satisfy was not complied with, and this suit was. brought to recover damages for this failure.

Appellant offered testimony tending to show that they had been damaged in a very substantial amount on account of their inability to sell the mortgaged cattle, which they were unable to do because of the outstanding mortgages.

There was a verdict and judgment in appellant’s, favor for the sum of $12.50, and they seek by this appeal to reverse that judgment upon the ground that the undisputed evidence shows that they sustained damages in a very much larger amount.

The briefs discuss the question whether the statute quoted is penal or remedial, the significance of that issue being that, in one case, the statute of limitations is two years and in the other three years. We find it unnecessary to decide this question, for reasons hereinafter stated.

By act No. 63, Acts 1913, page 192, Arkansas County was divided into two judicial districts, which were designated as the Northern and Southern districts, and it was there provided that, for all the purposes of the act, these districts should be considered as separate and distinct counties. The clerk and recorder is required by the act to maintain an office in each district and “to record all deeds and other instruments in writing required by law to be recorded in their respective offices,”

As we have said, appellants reside in the Northern . District of Arkansas County, and the mortgages executed by them to the bank were filed for record in the Southern District of that county. This being true, the mortgages were not recorded instruments within the meaning of the statute under which this suit was brought.

In the case of Beaver v. Frick Co., 53 Ark. 18, 13 S. W. 134, a per curiam opinion reads as'follows': “The mortgagor resided in the Western District of Carroll County. The court found that the plaintiff’s mortgage wias never recorded or filed in that district. It was therefore not a lien on the property of the mortgagor as against a subsequent mortgage filed and recorded in the district where the mortgagor resides. Under the act creating separate districts for the record of deeds and mortgages in Carroll County (act March 12, 1883), the two districts stand in that respect as 'separate counties.”

Section 7381, C. & M. Digest, provides that “every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage.”

The mortgages to the bank were therefore not recorded, and it is settled law that an unrecorded mortgage constitutes no lien upon the mortgaged property as against strangers, even though they have actual notice o’f its existence. Smead v. Chandler, 71 Ark. 505, 76 S. W. 1066; Ruddell v. Reves, 146 Ark. 259, 225 S. W. 316.

Not having been properly recorded, the mortgages in favor of the bank were not liens on the property, even as against persons having actual notice thereof, and, for this reason, we conclude that the statute sued on does not create a cause of action in appellants’ favor.

Appellee has not cross-appealed, but asks that the judgment be affirmed, and it is so ordered.


text:
    Inter-Ocean Casualty Company v. Warfield.
    Opinion delivered March 21, 1927.
    1. Insurance — accident policy — dwelling house. — A quarter-boat used by government employees, while engaged in river improvement work, as a place of abode where they ate and slept, was a “dwelling house” within the meaning of a policy insuring an employee against loss of time from work by burning of a dwelling house.
    2. Insurance — statutory penalty — foreign policy. — The penalty of 12 per cent, and attorney’s fee should not be allowed in a judgment on a policy written and maturing outside the State.
    Appeal-from Cliicot Circuit Court; Turner Butler, Judge;
    modified.

      William Kirten, for appellant.

      W. W. Grubbs, for appellee.
   Smith, J.

Appellee resides in Cliicot County, Arkansas, but for some years Has been employed by the United States Government in its improvement work on the Mississippi River. Appellee and other men similarly employed lived,' during the time of their employment, in a boat known as a quarter-boat, which was so equipped that the men ate and slept therein. As the name’of the boat indicates, it was the living “quarters” of the men employed by the Government, and was their home during the period of their employment. The quarter-boat in question was stationed or anchored against the bank about eight miles north of Greenville, on the Mississippi side of the river.

Appellee' read in a newspaper the advertisement of an accident and casualty company, having a local agent at Memphis, Tennessee, and he applied for a policy of insurance in the company. The application for the policy was transmitted by the local agent at Memphis to the home office of the company in Cincinnati, Ohio, where, on March 7, 1922, a policy was issued to appellee, it being mailed to him at his home address in Chicot County.

The policy insured the holder thereof against loss of time from work in the sum of $10 per week, for a period not to exceed three months, resulting from injury received in the following manner, to-wit: “By the burning of a dwelling-house, hotel, theatre, office building, lodge room, club house, school building, store, church or barn, while, the insured is therein, and provided the insured is therein at the beginning of the fire, and is burned by such fire, or suffocated by the smoke therefrom, but this clause shall not apply to nor cover the insured while acting as a watchman, policeman, or a volunteer or paid fireman.”

On December 14, 1924, while the policy was in force, appellee was employed by the Government and was living in the quarter-boat, wherein he ate his meals and slept at night. The boat caught fire, and appellee was severely burned, and he brought suit to recover the indemnity provided for in the policy. He recovered judgment for the sum sued for, together with a 12 per cent, penalty and an attorney’s fee. No question is made as to the amount recovered, except the penalty and attorney’s fee, if the insurer is liable under the policy. -

The liability of the insurer depends on the answer to the question whether the quarter-boat was a dwelling-house within the meaning of the policy.

In 19 0. J., 843, many definitions are given -of the word “dwelling”'or “dwelling-house,” under that title, and many cases are cited holding that certain structures were or were not dwelling-houses. It is there said: “Many definitions have been given in adjudicated cases, and they are not entirely harmonious. The usual line of demarcation has been the use to which the building is devoted as a habitation for man; but the particular meaning* intended to be expressed by it, when used in a given instance, may be rendered obvious by the context or attending circumstances; and usually resort must be had to those aids to interpretation to ascertain what is meant. * * * The term has been defined as one which is wholly or in part usually occupied by persons lodging therein at night, although other parts or the greater part may be occupied for an entirely different purpose; one designed to be occupied as a place of abode by night as well as by day, and which is-constructed with a special reference to that object; a house usually occupied by a person lodging therein at night; a house or other edifice usually occupied by persons lodging therein at night; any house in which a person sleeps at night; any house where any person habitually sleeps; a house in which one regularly and habitually sleeps in the night-time; any house within which some person habitually sleeps or eats his meals; a house intended for human habitation; any house inhabited by man; an inhabited house; any house in which people dwell; the house in which one dwells; a house or structure in which people dwell; a house in which human beings usually stay, lodge or reside; a house designed to be occupied as a place of abode; * * * the building in which one lives; a habitation for man, usually occupied by some person lodging in it at night.”

In the case of Davis v. The State , 38 Ohio State Reports, 505, it is said: “Whether a building is or is not a dwelling-house depends upon the u,se to which it is put. A barn may be converted into a dwelling-house, or a dwelling-house into a barn, by a change of uses; so an infirmary may or may not be a dwelling-house, depending in no wise upon the question of its ownership or the purposes of its original construction, but upon outside facts and circumstances. ’ ’

Tii the case of State of Iowa v. Mullen, 35 Iowa 199, it was held that the words “house of ill-fame,” as used in the statute punishing the keeping thereof as a nuisance, included a boat on the Mississippi River when used as a habitation for such purposes.' The court there said: “It is suggested that the keeping of a boat or vessel of ill-fame does not constitute the crime of nuisance as defined in § 1411 of the Revision, which punishes the keeping’ of houses of ill-fame for the purpose of prostitution and lewdness. But the noint seems not to be relied unon with any degree of confidence, and it needs but a passing notice. The evidence shows that the structure in question is a flatboat with a cabin built on it, well finished and protected from the water; that men and women lived in it, and that the defendant and others ate and slept there. The following is Webster’s definition of a house: ‘In a general sense, a building or shed intended or used as a habitation or shelter for animals of any kind; but appropriately, a building or edifice for the habitation of man; a dwelling-place, mansion or abode for any of the human species. It may be any size, and composed of airy materials whatever.’ ”

In the case of Corey v. Schuster, 62 N. W. 470, the Supreme Court of Nebraska said:. “The second argument is that the building on the homestead premises was and is not a ‘dwelling-house’ within the meaning of the statute. We think this argument wholly without merit. The law does not contemplate, by the words ‘dwelling-house,’ airp particular kind of house. It may be a ‘brownstone front,’ all of -which is occupied for residence purposes, or it may be a building part of which is used for banking or business purposes, or it may be a tent of cloth. All that the law requires on the subject is that the homestead claimant and his family should reside in this habitation or dwelling-house, whatever be its character, on the premises claimed as a homestead.”

We conclude therefore that the quarter-boat, being a place of abode for appellee and other employees during iheir employment, was, during that time, a dwelling-house within the meaning of the policy. The structure was designed and used for the purpose of abode, and its character as such was not destroyed by the fact that it was floated up or down the river as the work of the Government required.

Appellant insurance company • insists that it was error to allow the insured the statutory penalty and attornev’s fee, under § 6155, C. & M. Digest, and we concur in this view. Upon this point the case is ruled by the decision in the case of Business Men’s Accident Assn. v. Cowden, 131 Ark. 419, 199 S. W. 108. In that case, as in this, the policy sued on was written by a foreign insurance company, and the accident in each case upon which liability was predicated occurred in another State. It was there said: “* * * we hold that the statute (§ 6155, C. & M. Digest) was not intended to penalize a company on policies which were written and which matured in another State.”

The judgment of the court below will therefore be modified by striking’ out the allowance of the penalty and attorney’s fee, and, as modified, will be affirmed.


author: Humphreys, J.

text:
    Nix v. Kirkland.
    Opinion delivered March 21, 1927.
    1. FRAUD — evidence.'—Evidence held to support a finding that a valuation of $4,000 put on land by the owner at the time of exchanging it for other land was not' fraudulent, though the land subsequently sold for less than $2,000. .
    2. Fraud — reliance on representation. — One who, in negotiating for an exchange of lands, had his own agent to make inspection and report as to its value, cannot complain of fraudulent misrepresentation as to such value by the other party, since he did not rely upon such representations.
    3. Exchange of property — deficiency judgment on foreclosure. —In an exchange of lands, one who transferred an equity in land and $2,000 which he borrowed, giving a mortgage on the land which he transferred, held not entitled to personal judgment against the transferee, who took subject to the mortgage, for an amount of a deficiency judgment against the former when the land was subsequently sold to satisfy the mortgage.
    Appeal from Arkansas Chancery Court, Northern District; II. R. Lucas, Chancellor;
    reversed in part.

      T. W. M. Boone and John L. Ingram, for appellant.

      A. M. Dobbs, for appellee.
   Humphreys, J.

Appellant owned property in Fort Smith, Arkansas, consisting of equities, notes and unin-cumbered lands, of the total value of $4,000.

Appellees owned a farm of 80 acres near Stuttgart, Arkansas, valued at $4,000, upon which a loan had been approved for $2,000 by the Missouri Life Insurance Company. Negotiations for an exchange of the properties were commenced between said parties on February 26, 1923, and agreed upon the next day, provided appel-lees could complete the loan and would pay appellant the money which they procured and convey the farm to him subject to the mortgage.

Appellant required appellee, Frank Kirkland, to make an affidavit as to the value of the farm, which he did, placing the value at $4,000.

On the night of the 27th appellant telephoned to J. W. McCuen, at Little Rock, to go over and inspect the farm. He paid McCuen’s expenses. McCuen made a report to him. On February 28,1923, deeds carrying out the exchange were executed and placed in escrow in the First National Bank, Fort Smith. The deeds were delivered on March 34, 1923. The proceeds of the loan, amounting to $2,000, were paid by appellees to appellant on April 13, 1923. The'interest on the mortgage loan to the Missouri Insurance Company fell due in January, 1924, and appellant carried on quite a correspondence with the company in an effort to get it to include the interest and make a new loan on the farm. The effort proved futile. Appellant then sold his equity in the farm to Fred W. Loy for $100. On February 24, 1925, the Missouri Life Insurance Company instituted foreclosure proceedings against the farm, and asked for a personal judgment against appellees, J. F. and Annie L. Kirkland. It made appellant, Fred Loy, his grantee, and S. Kirkland, to whom appellees executed a gas and oil lease, parties defendant. No defense was interposed to the foreclosure suit. Appellees filed a cross-complaint against appellant, seeking to recover any deficiency judgment they might have to pay, in the event that the farm did not sell for enough to pay the mortgage debt. Appellant filed an answer to the cross-bill of appellees, denying liability on account of any deficiency judgment, and a cross-bill against him for $2,000 damages on account of alleged fraud and deceit practiced upon him in the exchange of properties. Fred W. Loy and S. Kirkland filed disclaimers of any interest in the farm.

'The mortgage was foreclosed, and the farm ordered sold to satisfy the mortgage indebtedness. The sale was made pursuant to the order, but the amount realized was insufficient to pay the indebtedness, the deficiency amounting to $470.78, which appellees paid.

The issues between appellant and appellees arising out of their respective cross-bills and answers were submitted to the court upon the testimony introduced by each, which resulted in the dismissal of appellant’s cross-bill for want of equity and a judgment in favor of appel-lees on their cross-bill for payment of $470.78, the amount of the deficiency judgment appellees were compelled to pay to the Missouri Insurance Company, from which is this appeal.

Appellant contends for a reversal of the decree on the ground that the weight of the testimony discloses that he was defrauded .by appellee, Frank Kirkland, in the exchange of the properties in the sum of $2,000. The only possible support in the testimony for such a contention arises out of the value placed on the farm in the affidavit made by Frank Kirkland. Frank Kirkland is strongly supported as to the value he placed upon the farm by the loan which was negotiated at the time the deal was made. The Missouri Insurance Compairy did not make loans upon real estate for over 50 per cent, of the value thereof. It loaned $2,000 upon this farm after appraisement. Several other witnesses testified that the farm was worth $4,000 at the time the deal was made. It is true that a number of witnesses testified that the farm was not worth $4,000 at that time, and, when sold under mortgage, it did not bring as much as $2,000. We are not inclined to attach much importance to the last circumstance, because property often brings much less than its actual or market value at forced sale. Yalues upon real estate are largely matters of opinion. We are unable to say, after a careful reading and consideration of tbe testimony, that the 'finding of the chancellor was contrary to a clear preponderance of the evidence upon this point. There is another reason, however, why the chancellor was correct in. dismissing appellant’s cross-bill against appellees. Appellant did not rely upon the statement contained in the affidavit of Frank Kirkland. He telephoned to his agent at Little Bock to inspect the property, and received a report from him before the deeds were finally delivered. Even if deceit and fraud had been practiced upon him in the exchange of the property, he must have relied upon the representations in consummating and completing the deal before he could recover damages.

Appellant also contends for a reversal of the deficiency judgment of $470.78 rendered against him in favor of appellees by way of subrogation to the alleged rights of the Missouri Insurance Company. The Missouri Insurance Company had no right to recover against appellant on account of the mortgage indebtedness. It did not ask for a personal judgment against him, although he was made a party defendant to its suit. The farm was purchased by appellant from appellees subject to the mortgage. The deed so recited. If Kirkland had purchased the mortgage from the Missouri Insurance Company and had attempted to foreclose the same upon the theory that the loan was procured by appellant through them, they could not have recovered a personal judgment against him, for the reason that the ‘$2,000 obtained on the mortgage was a part of the consideration paid by them for the Fort Smith properties. According to the records, appellees obtained $4,000 or more out of the Fort .Smith properties. The effect of the exchange was that appellees paid $2,000 in cash and an equity in the farm for Fort Smith properties of the value of $4,000. Having gotten $4,000 out of the Fort Smith properties, they certainly could not be heard to say they were also entitled to a personal judgment against appellant for $2,000 which they paid as a consideration for the Fort Smith properties. Appellees argmed that this deficiency judgment must he affirmed under the doctrine announced in the. case of Kay v. Castleberry, 99 Ark. 619, 139 S. W. 645. The facts in the instant case are materially different from the facts in the Kay case. In the Kay case an even exchange of properties was made. After the deal was closed, Castleberry, at the request of Kopelman, his grantee, negotiated a loan of $3,000 on property he had traded to Kopelman, and Castleberry and his wife signed the notes and mortgage for the loan. Kopelman received the money, which amount was in addition to the consideration in the deal and not a part of the consideration for the deal, as in the instant case.

The trial court committed reversible error in rendering a personal judgment against appellant on the cross-bill of appellees. The decree is therefore affirmed in dismissing appellant’s cross-bill against appellees, and reversed in adjudging a deficiency judgment in favor of appellees against appellant in the sum of $470.78.


text:
    Beasley v. Hornor.
    Opinion delivered March 21, 1927.
    1. Highways — collection of improvement taxes. — Since Acts 1921, p. 573, relating to the collection of delinquent highway improvement taxes, does not outline the method of procedure to foreclose liens for the taxes, it did not impliedly repeal Acts 1921, p. 296, which provided that such taxes should he collected in the manner provided by Acts 1909, pp. 844-847, § 23, 24.
    2. Highways — foreclosure of tax lien — complaint.—-A complaint seeking the foreclosure of a tax lien in a road improvement district which alleged briefly the organization of the district and the nonpayment of the tax, with a description of the delinquent land and the amount due thereon, held sufficient, under § 24 of Act 279 of Acts of 1909.
    3. Highways — foreclosure of tax lien. — Under Acts 1921, p. 573, a road improvement district could sue for delinquent road taxes, though the collector had not filed the delinquent list, and- though a copy thereof was not made a part of the complaint.
    4. Highways — redemption from tax sales. — The act of March 23, 1921, fixing- the period of redemption from sales for delinquent road taxes, was not repealed by act of March 26, 1921, No. 534; • there being no repugnancy between the two acts.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;

    affirmed.

      J. G. Burke, for appellant.

      Brewer & Gracraft, for appellee.
   Humphreys, J.

Appellant and appellee have made statements in-their respective abstracts and briefs of the substance of the pleadings as well as the facts, much of which we will appropriate word for word, on account of the correctness and brevity contained therein, in making a complete statement of the case before us on appeal.

This is a suit involving the title to lot 13, block 74, in the city of West Helena, Phillips County, Arkansas. Appellee, Fannie M. Hornor, claims the title to said property by virtue of a deed from the commissioner in chancery, dated and approved March 24, 1925, which deed was issued by the commissioner in compliance with a decree entered in a cause pending in the chancery court under the style of Road Improvement Dist. No. 2 of Phillips County, Arkansas, v. Delinquent Lands. The decree was based upon the following complaint, omitting caption and other formal parts:

“ Comes the plaintiff, Road Improvement District No. 2 of Phillips County, Arkansas, by its attorney, Skipwith Adams, and for its cause of action herein states: That Road Improvement District No. 2 of Phillips County, Arkansas, was duly created a~nd organized by the county court of Phillips County, on the. day of ., 1918, under and by virtue of an act of the General Assembly of the State of Arkansas, approved March 30, 1915, which said act, among other things, authorized an ■assessment of benefits on all of the real property and railroads situated within the boundaries of said district for the purpose of improving and constructing a designated road within said district. That, pursuant to the provisions of said act, the commissioners of said district caused an assessment of benefits to be made, which would accrue to the various tracts and parcels of land and railroads situated within said district, and caused said book of assessments to he filed in the office of the county clerk of Phillips County, Arkansas, and after-wards delivered to the sheriff and collector of said county, for the purpose of collecting the taxes due on each tract of land within said district for the years 1920 and 1921. That the sheriff and collector of Phillips County, pursuant to act No. 534 of the General Assembly of the State of Arkansas for the year 1921, duly certified to the clerk of the chancery court of said county a list of the lands so delinquent for the said taxes for the years 1920 and 1921, showing the amount of taxes due and penalty due on each tract or parcel therefor. That the clerk of the chancery court of said county, as is provided by said act No. 534, certified to the commissioners of said improvement district No. 2 a list of delinquent lands so certified to him by the sheriff and collectors of said county and remaining unredeemed, which said certified lists of delinquent lands are filed herewith; the list showing the said lands delinquent for the taxes for the year 1920 being marked Exhibit A, and the list showing the lands delinquent for the taxes for the year 1921 being marked Exhibit B, and made a part of this complaint, said lists showing the amount of taxes and penalty of each tract and parcel of land and railroad, agreeable to law.”

The appellant is the owner of the record title to said lands, having acquired title by and through one Jim Simms, who was the owner of said property at the time of the institution of said suit by the Road Improvement District No. 2 to foreclose its tax lien thereon. Prior to the filing of the suit for delinquent taxes, Jim Simms had .mortgaged said property to the appellant, which mortgage was afterwards foreclosed by -proceedings in chancery, and, at the commissioner’s sale in the foreclosure proceedings, the appellant became the purchaser thereof, and was the legal owner of the record title at the time of the execution of the deed to appellee. On the 11th day of November, 1925, appellee, Fannie M. Iiornor, filed a petition in the Phillips Chancery Court, praying the court that a writ of assistance be issued against the appellant and his tenants to place her in possession of the -property in controversy. The appellant filed his response to the petition of the appellee, and also asked that he be made a party to the proceedings, for the purpose of redeeming the lot from the said alleged tax sale, and tendered into court the necessary amount to perfect thé redemption. The response filed by appellant alleges that the proceedings brought by Road Improvement District No. 2 to foreclose its lien for the nonpayment of taxes for the year 1920 were void in that the said road improvement district elected to prosecute its suit under the terms and' provisions of act 534 of the Acts of the G-eneral Assembly at its session for the year 1921. That the requirements of act 534 were mandatory in order to give the chancery court jurisdiction.

' The appellant, in his pleadings, also prayed that he be permitted to redeem from said alleged tax sale, for the reason that the deed from the commissioner to Fannie M. Hornor was prematurely executed and confirmed by the court, for the reason that he, as the owner of said lands, had five years from the date of sale within which to redeem said property. The appellee moved to dismiss the response filed by the appellant, for the reason that it was predicated on a right to collaterally attack the decree • upon which the sale was predicated and the commissioner’s deed subsequently issued. The appellee further moved to dismiss the intervention to redeem the lot because of the fact that the two-year statute of redemption applied, instead of five years, and that the two years had passed. The motion to dismiss was overruled, to which action the appellee duly excepted, and, upon a hearing of the causes, she presented the complete record in the foreclosure proceedings, consisting of the original complaint, heretofore set out, with the delinquent list' attached, the notice of the pendency of the cause, proof of publication, decree ordering- s’ale of the lands, notice of sale, proof of publication of same, report of sale, order of confirmation of sale, and the commissioner’s deed to said appellee. Appellant introduced in evidence the list of delinquent lands for the year 1920, as certified to by the sheriff, and the certificate of the chancery court showing the recording of same, which revealed that the list of delinquent lands was not filed by the collector within the time and manner required by § 1 of said act 534. Act 338 of March 30, 1915, under which said district was created and organized, appears as § 5399, Crawford & Moses’ Digest, et seq. Section 5540 of Crawford & Moses’ Digest, which,is a part of act 338, provides the time for redemption as one year from the date of sale. Said act 338, under which Road Improvement District No. 2 was organized, specifically repealed all acts in conflict Avith it. Sections 5642 to 5644 of Crawford & Moses’ Digest, which were a part of act 43 of the General Assembly of 1915, approved February 9, 1915, enacted nearly two months before the passage and approval of said act 338, provides the time for redemption as five years from the date of sale.

Appellant’s first contention for a reversal of the decree is that the proceedings brought by Road Improvement District No. 2 to foreclose its tax lien were irregular and void, because the collector failed, on or before the second Monday in June of 1920, to make out and file with the clerk of the chancery court a list of the delinquent lands, including the lot in question,' and that the list so filed Avas not supported by the collector’s affidavit, and that the said list Avas not recorded by the chancery clerk in a book kept for that purpose, on or before the first day of July following. The contention is based upon the theory that act 534 of the Acts of 1921 repeals by implication all prior acts AAdth reference to foreclosing liens for delinquent taxes in road improvement districts, and that a failure to comply with said act in any particular renders the sale void. The act does not outline the method of procedure to foreclose liens for taxes, hence it did not repeal act No. •223 of the Acts of the General Assembly of 1921, which made provision for the foreclosure and collection of delinquent taxes in road improvement districts in the manner provided by % % 23 and 24 of act 279 of the Acts of 1909. Section 24 of said Act 279 reads as follows:

“In such suits it shall be sufficient to allege generally and briefly the organization of the district and the nonpayment of the taxes, setting forth a description of the lands proceeded against and the amount chargeable to each tract, with prayer for foreclosure.”

By reference to the complaint of Road Improvement District No. 2, copied at length herein, it will be seen that it is broad enough to meet the requirements of the statute. The fact that it alleges a compliance with said act 534 and that the allegations were not sustained by the proof, does not render the sale void, unless the requirements were jurisdictional. The requirements of said act were before this court in the case of Moore v. Long Prairie Levee District, 153 Ark. 85, 239 S. W. 380, and it was alleged that the filing of the delinquent list by the collector and the furnishing thereof to the clerk to be attached to the complaint was not a condition precedent to the right to sue. The court had jurisdiction of the subject-matter and parties, under act 223 of the Acts of 1921, so that failure to comply with said provision under act 534 of the Acts of 1921, not being jurisdictional, could not have the effect of defeating the foreclosure judgment for delinquent taxes on collateral attack; such ■ irregularities could only be corrected, if necessary to correct them at all, under a direct attack. McCarter v. Neil, 50 Ark. 188, 6 S. W. 731; Collier v. Smith, 132 Ark. 309, 200 S. W. 1098.

Appellant’s second and last contention for a reversal of the decree is that the court erred in ruling that the two-year statute of limitations applied, and denying his offer to redeem the lot. The sale occurred on the 17th day of February, 1923, and the petition to redeem was not filed until November 23, 1925, more than two years after the date of the sale. Appellant concedes that, unless act 223 of the Acts of 1921 was repealed by act 534, passed at the same session, the right to redeem only existed for.two years from the date of the sale. As stated before, no period of redemption was provided in the latter act, hence there is no repugnancy between it and act 223. We think upon this point the instant case is ruled by the case of Northern Improvement District v. Meyerman, 169 Ark. 383, 275 S. W. 762.

No error appearing, the decree is affirmed.