text:
    C. A. Rees & Company v. Pace.
    Opinion delivered January 15, 1923.
    1. Appeal and error — bringing oral testimony por review. — To bring evidence taken o?’e terms in an equity suit before the Supreme Court for consideration, it may be included in a bill of exceptions approved by the court or agreed to by the parties or made a part of the record by having it taken down in writing, in open court and by permission filed with the papers in the case or by having it reduced to writing and embodied as a recital in the decree, or the method provided by Crawford & Moses’ Dig-., § 1269, should be followed.
    2. Appeal and error — bringing oral testimony for review. — • Inserting purporteed testimony in the transcript under a certificate of identification from a stenographer not designated or appointed by the court to take, transcribe and file the evidence was not sufficient to bring oral testimony into the record.
    3. Appeal and error — absence of testimony. — The Supreme Court cannot determine issues on their merits where the testimony has not .been properly preserved and incorporated in the record.
    4. Trial — transfer of cause.' — As the fund sought to be subjected in equity to a subcontractor’s debt against the contractor in a road improvement district could not be reached by' a suit at . law, and was only available in a proceeding known as an equitable garnishment, it was not error to refuse to transfer the suit to the circuit court.
    5. Garnishment — bond.—The bond required by Crawford & Moses’ Dig., § 4906, providing that where garnishment is issued before judgment plaintiff must give bond in double the amount for which the garnishment is issued, applies only to garnishment proceedings prosecuted thereunder, and has no application to an equitable garnishment.
    Appeal from Little Eiver Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      A. B. BuLaney, for appellant.

      Johnson & Shaver, for appellee.
   Humphreys, J.

Appellee instituted this suit against appellants in the chancery court of Little Eiver County to recover an alleged balance of $5,378.06 for work done by him as a subcontractor of appellants in Eoad Improvement District No. 7, in said county. Judgment was prayed against appellants, and an equitable garnishment against Eoad District No. 7.

Appellants filed an answer denying the allegations of the bill.

The cause was submitted to the court upon the pleadings, exhibits thereto, and the depositions of H. K. Pace, Luther Carson, R. R. Cox, Joe Jackson, and Fred Latham, taken orally before the court. The aforesaid testimony, taken ore terms before the court, was not brought into the record by a bill of exceptions approved by the court or agreed to by the parties or their attorneys, nor was it made a part of the record by having it taken down in writing in open court and by permission filed with the papers in the case, -nor by having it reduced to writing and embodied as a recital in the decree. One of said methods should have been adopted, or else the method provided by the Practice Act of 1915 (Crawford & Moses’ Digest, § 1269) should have been followed, in order to bring the evidence before the Supreme Court for consideration de novo. Fletcher v. Simpson, 144 Ark. 436; Desha Road Improvement District No. 2 v. Stroud, 153 Ark. 587. The method adopted was to insert the purported testimony in the transcript, under a certificate of identification from a stenographer not designated or appointed by the court at the beginning of the trial to take,' transcribe, and file the evidence. This was not sufficient to bring the oral testimony into the record. Blackford v. Gibson, 144 Ark. 240.

. Appellee insists that this court cannot determine the issues upon their merits, because the testimony has not been properly preserved and incorporated in the record. The contention of appellee is correct, and must be sustained under the rules of practice announced in the cases cited above.

Appellants contend, however, that reversible error appearing upon the face of the record was committed by the trial court in overruling their motion to transfer the cause to the circuit court, and to require appellee to file a bond under § 4906 of Crawford & Moses’ Digest.

Under the allegations of the bill, Cobb and Junkins, operating as partners under the firm name of Rees & Company, were nonresidents, insolvent, and without any property in the State, except an amount due them by said Road District No. 7, a public corporation, for constructing a road; that said Rees & Company were the principal contractors and appellee their subcontractor: that the work done by said appellee was for the special benefit of said road district.

The fund herein sought to be subjected to appellees' alleged debt against the contractor could not be reache;, by a suit at law. It was only available in an equitable proceeding known and characterized as an equitable garnishment. Riggin v. Hillard, 56 Ark. 476; Plumber v. School District No. 1 of Marianna, 90 Ark. 236; Sallee v. Bank of Corning, 134 Ark. 109; Bayou Meto Drainage District v. Chapline, 143 Ark. 446; Hayes-Thomas Grain Co. v. Wilcox Contracting Co., 144 Ark. 621; Henslee v. Mobley, 148 Ark. 181; Road Improvement District No. 4 v. Southern Trust Co., 152 Ark. 422.

The bond required by § 4906 of Crawford & Moses’ Digest has no application to a proceeding of this character. It only applies to proceedings prosecuted under said statute.

No error appearing on the face of the record, the decree is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J. Hart, J.,

license: Public Domain

text:
    Black v. Lenderman.
    Opinion delivered January 15, 1923.
    1. Judgment — res judicata. — Where the father of three children . brought suit in name of the State for the benefit of himself and the children to compel the directors of a school district to permit his children to attend the school provided by the district for white children, a decree denying relief upon the ground that the children were properly excluded on the ground that they had a trace of negro blood was a bar to a subsequent action in equity by the children against the school directors to restrain the latter from denying such privilege to them; the issues and the parties being practically the same.

      ■2. Schools and school districts — right op colored children to attend white school, — Under Crawford & Moses’ Dig., § 8915, requiring that separate schools be maintained for white and colored children, colored children are not entitled to attend a school for white children, though it is the only school maintained in the district.
    Appeal from Montgomery Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      R. G. Davies, for appellant.
   McCulloch, C. J.

Appellants, Black and Ills children of school age within the statutes of the State, instituted this action in the chancery court of Montgomery County against the directors of the school district in which they resided, to restrain the directors from denying them the privilege of attending the only school maintained in the district, being a school maintained for white children. The children were denied the privilege of attending the school on the ground that they are not of the white or Caucasian race; that they have a trace of negro blood, and are “colored children” within the meaning of the statute. Appellants claim, and allege in their complaint, that the children are of the white race, with a trace of Cherokee Indian blood.

Appellees put in a plea of res judicata on the ground that, in an action instituted by appellants in the circuit court' of Montgomery County against the school district of which appellees are directors, to compel tlm district, by mandamus, to receive the children into il school, tiie circuit court rendered a decision against them and that hhe judgment of the circuit court was affirmed by this court. State v. School District No. 16, 154 Ark. 176. The chancery court sustained the plea, and rendered a decree dismissing the complaint, from which decree an appeal has been prosecuted to this court.

Appellants now present a motion for a temporary injunction, and it is submitted upon the motion and briefs upon the merits of the case.

Since the only issue in the case necessarily arises on the motion for a temporary injunction, it is deemed expedient to decide it now in passing on the motion.

We are of the opinion that the only issue in the case was decided adversely to appellants in the mandamus case, and that the former adjudication is a bar to any further litigation on that issue. The parties are the same in each case, except that in the former case the suit was instituted against the district itself in the name of the State on the relation of appellants, whereas the present case' was'instituted by appellants in their own name against the directors of the district. But in each case the issue was practically the same, and the parties were really the same. The court decided in the former case that there was substantial evidence to sustain the action of the directors in refusing the admittance of these children into the school for white children, on the ground that they had a trace of negro blood in their veins, and that the action of the directors should not be controlled by the court.

Conceding that, a suit in chancery would have been an appropriate remedy, in the first instance, to secure the relief sought, it is too late, after having the same relief denied in the other action, to resort to this remedy. An adverse adjudication of the same asserted right in either form of action bars any further action to secure the same right.

It is argued that appellants, whether of the white or negro race, have the right to attend the only school in the district, even though it is maintained for white children, but this argument is unsound. It is the policy in this State, expressly declared by statute, that separate schools be maintained for white and colored' children. Crawford & Moses’ Digest, § 8915. There is no effort in this case to compel the directors to establish another school to accommodate these children, but the effort is to compel the directors to receive these children into the school for white children. If, as determined by the directors upon sufficient evidence, thesie children are not of the white race, they are not entitled to attend the school for white children, and the court decided in the other case that there was substantial evidence to sustain the finding of the directors.

The temporary injunction is therefore denied, and the decree of the chancery court is affirmed.

Hart, J.,

dissents on the ground that the former decision was erroneous.


author: McCulloch, C. J.

text:
    Fort Smith v. Midland Valley Railroad Company.
    Opinion delivered January 22, 1923.
    Municipal corporation — occupation tax exemption. — A municipal ordinance imposing an occupation tax upon railroad companies “operating railroads entering the city, maintaining and operating a passenger and freight depot, it not being the purpose to tax any interstate, foreign or United States business,” exempts from its operation a railroad company engaged exclusively in interstate business.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge;
    affirmed.

      Fad jo Cravens, for appellant.
    The ordinance was valid. 125 U. S. 183.

      O. E. Stvan and Pryor S Miles, for appellee.
    As the ordinance itself excepts the appellee and those engaged in interstate commerce from its provisions, the tax does not apply to appellee. 58 U. S. law. ed. 483; 141 U. S. 47; 120 U. S: 489; 127 IT. S. 640; 129 IT. S. 141; 203 IT. S. 507; 217 IT. S. 91; 221 IT; S. 229; 226 IT. S. 205; 227 IT. S. 389; 230 IT. S. 352, 62 IT. S. law. ed. 298.
   McCulloch, C. J.

The city of Fort Smith has an ordinance enacted under the supposed authority of the statute empowering cities to impose occupation taxes (Crawford & Moses’ Digest, § 7618), and a section, or clause, of that ordinance imposing’ a tax on the operation of railroad depots reads as follows:

“Railroad companies, receivers, individuals or associations operating railroads entering the city, maintaining and operating a passenger and freight depot, it not being the purpose to tax any interstate, foreign or United States business, $150 per annum.”

Appellee railroad corporation maintains a passenger and freight depot in Fort Smith, and, having failed to pay the occupation tax prescribed by the section quoted above, this proceeding was instituted against it by the city in municipal court to recover the amount of the tax. On appeal to the circuit court the city was denied recovery, and it has prosecuted an appeal to this court.

The case was tried on an agreed statement of facts, that the appellee “maintains and operates in the city of Fort Smith a freight and passenger depot for the purpose of receiving and discharging freight and passengers, but that it owns no line of railroad entering the city of Fort Smith; that it has trackage arrangements with the Frisco whereby its trains from Wichita, Kansas, through the State of Oklahoma are operated into Fort Smith over the Frisco tracks from Rock Island, Oklahoma, a point about thirty-five (35) miles southwest of Fort Smith, in the State of Oklahoma; and that all the business, both passenger and freight, carried or handled by the defendant, Midland Valley Railroad, into or out of the city of Fort Smith, is interstate traffic; that it handles no intrastate traffic of any kind or character whatever in the city of Fort Smith.”

Counsel for appellee contend that, under the language of the ordinance in question, its business of operating a depot is expressly exempted from the tax, and we concur with them in this contention. The decision will therefore be confined to that single question, without deciding what the effect of an ordinance would be as to the imposition of a tax on the business of appellee, even if it did not contain the exemption clause.

It is difficult to discover any other meaning intended by the language used in the ordinance than that the tax shall not apply to the operation of a depot for the transaction of interstate business. It is the business, or occupation, upon which the statute authorizes the tax, and, since this ordinance declares that it is not the purpose to tax interstate business, it necessarily means that the exaction does not apply to a depot operated in that character of business. According to the stipulation of facts, appellee is not engaged in the city of Fort Smith in any business other than interstate in its character.

Judgment affirmed.


text:
    Sledge & Norfleet Company v. Hughes. J. T. Fargason Company v. Lovewell.
    Opinion delivered January 22, 1923.
    1. Landlord and tenant — conversion op crop — what law governs. — In a suit by a landlord against a mortgagee to enforce his statutory lien, and to hold the mortgagee liable for having converted the crop, where it was a question whether the conversion took place in this or an adjoining State, held, if the conversion took place in the other State, the law of that State governs as to the mortgagee’s liability.
    2. Landlord and tenant — place op conversion of crop. — -Where cotton upon which the statutory lien existed was mortgaged by the tenant, and, according to pre-arrangement, the cotton was delivered in this State -to a carrier to be shipped to the mortgagee in another State, who subsequently sold the cotton, the conver- . sion took place in this State, and liability therefor was to be de- - termined by the laws of this State.
    3. Landlord and tenant — mortgagee not merely a factor when. —Where a cotton gr.ower agreed with a mortgagee to ship his cotton out of the State to be sold by the mortgagee, the proceeds to be applied on shipper’s account, the mortgagee was not merely a factor, but he had an interest in addition to his interest as factor, as against the holder of a landlord’s lien.
    4. Landlord and tenant — conversion op crop — liability.—Where a mortgagee of cotton arranged with a tenant to ship his cotton out of the State, having notice of plaintiff’s lien thereon as landlord, it was liable to the landlord on the ground of the destruction of the lien.
    5. Landlord and tenant — waiver of lien. — Where a mortgagee of cotton arranged with a tenant to ship it out of the State, and thereby defeat a landlord’s -lien on the cotton, mere knowledge on the landlord’s part that the shipment was made did not constitute a waiver of his lien.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Mann S Mann, for appellants.
    The conversion of the cotton having occurred in the State of Tennessee, the lien created under the laws of Arkansas did not apply. 16 R. C. L. 505; 82 Miss. 740; 75 Miss. 150; 24 Cyc. 1259; Jones on Liens, vol. 1,. p. 74, sec. 111. The general rule is that the statutes of a. State have no extraterritorial effect.- 16 R. C. L. 989.

      ' Moore, Smith, Moore & Trieber and Jas. R. McDowell, for appellants.
    The landlord’s lien statute has no effect beyond the limits of the State. 75 Miss. 150;'21 So. 663; 73 Miss. 434; 16 So. 910; 73 Miss. 410; 19 So.' 210; 16 R. C. L. 989; 19 Am. & Eng. Ene. of Law, 24; 24 Cyc. 1259; 2 Underhill on Landlord & Tenant, 1446; Jones on Liens, p. 103, sec. Ill; 37 Ala. 85. There was no conversion of the cotton by appellant in Arkansas. 48 Am. Dec. 754.

      R. D. Smith and C. W. Norton, for appellee Hughes.
    The landlord’s lien for rent comes into existence-with the coming of the crop into existence, and exists uninterruptedly thereafter as a presently vested right and species of property. 25 Ark. 417; 25 Ark. 609; 27 Ark. 1; 95 Ark. 32; 139 Ark. 318; 213 S. W. 741. Actual knowledge is not necessary to constitute notice; the purchaser is put on notice by any facts such as would put a man of ordinary prudence upon inquiry that would lead to a knowledge of the landlord’s lien. 69 Ark. 306; 63 S. W. 47; 56 Ark. 478; 72 Ark. 132; 78 S. W. 746. A lien created by contract is not lost by the subsequent removal of the property to another State, although the law of that State with reference to the preservation of liens is not complied with. Wharton, Conflict of Laws 717; 173 Fed. 478; 109 N. C. 10; 13 S. E. 721; 13 L. R. A. 740; 29 Fed. 156; 10 So. 846.

      Randolph & Randolph, for appellee Lovewell.
   McCulloch, C. J.

In each of the cases under consideration the appellees sued in the chancery court to recover the proceeds of cotton grown during the year 1920, on which they asserted liens as landlords: and in each case the appellant* defendant below, is a Tennessee corporation doing business in the city of Memphis, and the cotton in controversy in each case was shipped by a common carrier from the State of Arkansas, where the cotton was grown,- to the appellant at its place of business in Memphis. The similarity of the facts.in the two cases brings them within the operation of the same controlling principles and justifies the disposal of them in one opinion.

The facts of the first case mentioned in the caption, as found by the chancery court, in accordance with the preponderance of the testimony, are as follows:

Appellee, Mrs. C. A. Hughes, oavus a plantation in St, Francis County, and rented it for the year 1920 to Tucker & Friar, a copartnership, for a stipulated rental price of $7,500, to be paid in money. In the early part of the same year the tenants, Tucker & Friar, executed a mortgage to appellant, Sledge & Norfleet Company, on all of the crops produced by them, including those grown on the farm of appellee, Avhich were specifically described in the mortgagé. The mortgage was executed to secure notes aggregating $50,000, and further advances of money to be made during the year. The mortgage contained a stipulation that the mortgagors should, during the harvesting season of 1920-21, ship to appellant, as commission merchants, all of the cotton described in the mortgage. Pursuant to the stipulation in the mortgage, Tucker & Friar shipped their crops of cotton to appellant by common carrier, including 152 bales grown on the farm of appellee, the proceeds of which were to be credited to their account. In addition to this, Tucker & Friar shipped 47 bales, to be applied on the rent, to appellee, which were so applied, leaving a balance unpaid, Avhicli appellant subsequently refused to pay out of the remainder of the proceeds. The court rendered a decree in favor of. appellee against appellant for the recovery of $4,573.26, the balance of the rent.

In the other case the appellees rented a farm in Mississippi County to W. W. Driver for a series of years, including the year 1920, the rental price per annum being about $29,000, the amount of the decree in favor of the appellees against appellant. During the year 1919, Driver mortgaged the crop to appellant and shipped his cotton to appellant, pursuant to a stipulation in the mortgage, and the rent was paid out of the proceeds. Appellant carried over a large debt balance against Driver, and made further advances during the year 1920, but no mortgage was given on the crop produced that year. The testimony establishes the fact, however, that it was verbally agreed between Driver and appellant that the cotton should be shipped to appellant as during the previous year. It was shipped to appellant by common carrier, and was sold and the proceeds applied on Driver’s debt to appellant, leaving a large balance. Appellant refused to pay the rent out of the proceeds of the cotton.

In each of the cases the testimony supports the finding that the appellant knew, when it received the cotton, that it had been grown on the farm of appellees, and that the rent had not been paid. There was testimony, at any rate, to show that the appellant in each case was cognizant of facts sufficient to afford notice of a lien on the crop.

The contention of appellant is that the cotton was received in Memphis and that the conversion occurred there, and they invoke the rule announced by some of the authorities that a statutory lien has no extraterritorial force so as to create liability for conversion in another State.

If the conversion took place in Tennessee, the law of that State must govern the question of liability. Security Bank & Trust Co. v. Bond, 132 Ark. 592; Wilson-Ward Co. v. Farmers’ Bank, 153 Ark. 368.

In an unpublished opinion of the Supreme Court of Tennessee, recently delivered (Kirk v. Bailey-Ball-Pumphrey Co.) which has been brought to our attention by counsel, the court declared the law of that State to be that the statutory landlord’s lien of another State (Arkansas) has no extraterritorial effect and cannot be enforced against colton removed to the State of Tennessee.

The opinions in those cases are not in conflict with the decisions in F. E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, and Wray Bros. v. H. A. White Auto Co., 155 Ark. 153, nor with the reasoning of the opinions- therein, for in the latter cases we held that the lien of a chattel mortgage given and recorded in another State in accordance with the laws of that State should, even against an innocent purchaser for value, be enforced here by comity when the mortgaged chattel has been removed to this State without the consent of the mortgagee. In the one class of cases the right of action for conversion arose in another State and was enforced here under the rule of comity, whilst in the other class the lien of a foreign mortgage was also enforced here under the comity rule because the property was here or á conversion occurred here.

We need not decide where the weight of authority lies on this question of extraterritorial effect of statutory liens, but must accept the declaration of the Tennessee Supreme Court as the final arbiter concerning the laws of that State.

If, however, the conversion occurred in the State of Arkansas, our laws control, and the lien is effective, unless waived. Or if the eoitton was -transported out of this State by the connivance here of appellant so as to destroy the lien and prevent its enforcement, this established liability on account of the violation of the rights of the landlord. Walker v. Rose, 153 Ark. 599.

The delivery and acceptance of the cotton bv appellants occurred in this State by delivery to a common carrier, according to prearrangement between the parties, and the conversion was complete here. May v. McGaughey, 60 Ark. 357; Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Equitable Mfg. Co., 79 Ark. 456; Main v. Jarrett, 83 Ark. 426: Josey v. State. 88 Ark. 269: Bray Clothing Co. v. McKinney, 90 Ark. 161; Roberts Cotton Oil Co. v. Grady, 105 Ark. 53.

There was an express agreement in each case for the shipment of the cotton by public carrier, and delivery to the carrier constituted delivery to the consignee. It is contended on behalf of.the appellant in each case that, while the rule applies in an ordinary instance of sale and delivery of goods, it does not apply so as to constitute a conversion of the property at the time of the delivery to the public carrier. We perceive no ground for this distinction. As between the parties, the delivery became complete for all purposes when it passed - into the possession of the carrier for transportation to the consignee. Nothing else remained to be done to complete the delivery to the consignee, and the conversion was then consummated.

But it is also argued that the consignee in each of these cases was a factor — the agent of the shipper. Not so. The proof shows' that appellant had an interest in addition to that of factors. The cotton was shipped to them for sale and application on their several accounts against the shippers. Moreover, their prearrang-ement with the tenant to ship the cotton out of the State with notice of this lien of the landlord'Constituted a destruction of the lien, if the lien was thereby destroyed, and they are liable to the landlord on that ground. Walker v. Rose, supra.

Our conclusion therefore in each of these cases is that appellants are liable for the value of the cotton to the extent of the liens of the respective landlords.

In the Fargason case it is contended that, as a portion of the cotton was shipped to appellant by the tenant after appellant’s refusal to pay the rent out of the cotton already shipped, this constituted a waiver of the lien to the extent of the value of that portion of the cotton. The landlords did not consent to the shipment of cotton. Mere knowledge of the shipment did not constitute consent so as to operate as a waiver. They had the right, in .the absence of express consent, to stand upon this lien which they had already asserted, and no waiver can be implied from the mere fact that they failed to commence an action to enforce the lien on the cotton before it was shipped out of the State. It is not a case where the landlord stood by and permitted a sale of cotton to an innocent purchaser without notice of the lien. Appellant was aware of the lien, and knew that the landlords were claiming under it.

The decree in each case is correct and is affirmed.

Hart and Smith, JJ., concur.


author: McCulloch, C. J. Hart, J.

text:
    Bank of Commerce of Earle v. Tubb.
    Opinion delivered January 22, 1923.
    Landlord and tenant — landlord’s lien — conversion op crop.— Where a tenant, after having grown a crop of cotton, shipped it to a factor out of the State and subsequently sold it to defendant out of the State, there was no liability on the purchaser’s part for defeating the landlord’s lien, in the absence of prearrangement or connivance on the purchaser’s part, though both the tenant and the purchaser were residents of the State at the time of the conversion of the crop in another State. .
    Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    reversed.

      A. B. Shafer, for appellant.
    The record discloses that appellant had nothing to do with shipping the cotton to Memphis and knew nothing about such shipment until the event actually occurred, which state of facts distinguishes this case from that of Walker v. Bose, 153 Ark. 599. There is here no question of comity as there is in 132 Ark. 592. The Arkansas statute giving a landlord a lien on his tenant’s crop does not have extraterritorial effect so as to preserve that lien after the cotton is shipped out of the State. Nor does the fact that Tennessee has a similar statute help the ’Arkansas landlord. 75 Miss. 150; 82 Miss. 747; 129 U. S. 355; 16 R. C. L. p. 989; Kirk v. Bailey-Ball-Pmnphrey Co. (Tenn.) ms. op.

      Hughes & Hughes, for appellee.
    Equity acts in personam and not in rem. 1 Pomeroy’s Eq. Juris, sec. 429.

      Where a court has jurisdiction of the person, it may-render an appropriate decree acting directly upon the person, although the subject-matter may be without the jurisdiction, compelling the performance of a contract, or prevent the prosecution of an action outside the jurisdiction. Without regard to the situaion of the subject-matter, courts consider 'the equities, and enforce obedience to their decrees by process in personam. 21 C. J. p. 150-151. See also 53 Ark. 71. A purchaser who contrives with a tenant to destroy a lien is liable for the value of the property which has come into his hands. 34 Ark. 691; 67 Ark. 362; 69 Ark. 551; 72 Ark. 132; 95 Ark. 32; 103 Ark. 91. A mortgage or lien created under the statutes of Arkansas still exists, although the property, which is the subject-matter thereof, has been removed from the State 1 Wharton, Conflict of Laws, p. 717; 173 Fed. 471; 72 Ark. 132; 129 II. S. 355; 96 Ala. 214; 99 Fed. 187; 29 Fed. 156; 52 Am. St. Rep. 780; 132 Ark. 592. While no extraterritorial operation of our statute- is claimed, it is also true that other States give effect to rights acquired under foreign statutes, within certain known limits. This case is not within any of the exceptions. Dicey, Conflict of Laws, XOIII; 241 Fed. 690; 114 Tenn. 344.

      A. B. Shafer, for appellant, in reply.
    There is a distinction between contract and statutory liens. A contract lien is not limited to any particular jurisdiction, whereas a statutory lien is only enforceable within its jurisdiction. 3 Barb. (N. Y.) 89.
   McCulloch, C. J.

The plaintiff, Mary E. Tubb, owns a plantation in Crittenden County, and rented it for .the year 1920 to Manly Fox for the stipulated -rental price of $8',000. Fox mortgaged his crop on the plantation to the defendant, Bank of Commerce of Earle, a domestic banking corporation doing business at the town of Earle, in Crittenden County. Of the crop of cotton srown and gathered by Fox, he sold five bales to the defendant at the latter’s place of business in Arkansas, and he shipped twenty-nine bales to the Nebhnt Cotton Company, of Memphis, Tennessee, as his factors. After the shipment had reached the warehouse of the factors in Memphis, the defendant, acting through its vice-president, met Fox in Memphis and purchased the cotton from Fox and credited the proceeds on the latter’s indebtedness to the defendant. The whole transaction occurred in the city of Memphis, where the cotton was then situated.

The defendant knew at the time that it purchased the five bales of cotton from Fox in Crittenden County, as well as when it purchased the twenty-nine bales from Fox in Memphis, that the cotton was grown on the plantation of Mrs. Tubb, and that the rent was unpaid.

This is an action instituted by Mrs. Tubb against the defendant asserting a landlord’s lien on the cotton sold to defendant and seeking to hold the latter liable by reason of having received and converted the cotton upon which the lien is claimed. The material facts are undisputed.

The principles which control the present controversy are stated in another opinion of the court handed down this day. Sledge & Norfleet Co. v. Hughes, ante, p. 481. In that case we stated the law to be that “ if the conversion took place in Tennessee, the law of that State must govern the question of liability,” but that, if the conversion occurred in the State of Arkansas, our laws control, and the lien is effective, unless waived, or if the cotton was transported out of the State by the connivance here of appellant so as to destroy the lien and prevent its enforcement, this establishes liability on account of violation of the rights of the landlord.

In each of the two cases in which the law was declared as above quoted we found from the undisputed facts that the conversion took place in Arkansas and that there was liability for the conversion under the laws of this State. In the present case, however, the facts are undisputed that the conversion took place in the State of Tennessee, and, as shown in the opinion in the other cases just referred to, the- Supreme Court of Tennessee has declared the law to be that the statutory lien of another State has no extraterritorial effect, and there can be no recovery under the laws of Tennessee under such a lien created by the laws of another State.

In the present case the cotton was shipped by the tenant, not to the defendant or its agents, but to a cotton factor of the tenant’s own selection. There is no evidence of any prearrangement between the tenant and defendant in this case to ship the cotton, or that the defendant advised or connived at the shipment. The full extent of the facts, as shown by the proof in the record, is that the cotton was shipped to Memphis, and subsequently the defendant’s agent met Fox, the tenant, in Memphis and purchased the cotton from him. There is therefore no case made of connivance between the parties or any conduct that would constitute a destruction of the lien before the cotton was sold by Fox to the defendant in Memphis. The facts in the case do not, in other words, bring it within the decision of this court in the recent case of Walker v. Rose, 153 Ark. 599. In that case the defendant, with knowledge of the landlord’s lien, advised the tenant to ship the cotton to Memphis and sell it there and turn over the proceeds to the defendant, and this was done. We held that this was a wrongful act committed by the defendant upon the rights of the plaintiff as landlord, and resulted in destruction of the latter’s lien, which rendered the defendant responsible.

Learned counsel for the plaintiff seek to maintain the right of recovery against the defendant on the theory that, even though the cotton was situated in Tennessee, equity acts in personam with power to compel obedience to its mandate, and that the conversion of the cotton in another State did not deprive plaintiff of this remedy. The remedy may have been available if sought before the sale of the cotton which constituted the conversion, but we must, as before stated, test the validitv of the act of conversion by the laws of the State of Tennessee, and if the act was lawful there, there was no remedy here to be enforced against the defendant by the courts of this State. The fact that both parties were residents of this State and amenable to its laws at the time of the conversion in Tennessee does not affect the question of liability for an act committed in another State.

We conclude therefore that there is no liability on the part of the defendant for the value of the twenty-nine bales of cotton purchased from Fox in Tennessee. It is conceded that there is liability for the value of the five bales of cotton purchased in Crittenden County.

The decree is therefore reversed and the cause remanded, with directions to render a decree in plaintiff’s favor against the defendant only for the five bales of cotton converted in this State.

Hart, J.

(dissenting). In saying that the decisions of the court of Tennessee must govern in this case, the majority opinion proceeds upon the theory that it is a case calling for the application of the doctrine of comity.

Judge Smith and myself recognize that comity will enforce rights not in their nature local, and not contrary to the policy of the government of the tribunal.

In the application of the doctrine of comity, "the courts of this State have always enforced the rights of property arising under contracts in another State when such enforcement neither violates our own laws nor infringes on the rights of our own citizens. F. E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, and Wray Bros. v. H. A. White Auto Co. But we do not think that comity has any place under the facts disclosed by the record in the present ease.

The enforcement in our courts of the laws of another State depends upon our own consent. That consent is given under the doctrine of comity,- the scope and the extent of which each State has the right to determine for itself. It has never been the policy of this State to be governed by the decisions of another State, when by so doing it would neglect the duty it owes to its own citizens to enforce its own statutes and laws according to its own decisions. In short, the courts of this State have always been open to all its citizens to enforce their rights under the statutes of the State, as well as those rights arising under the common law, or founded in equity or natural justice.

If the present suit had been instituted in the State of Tennessee, then the courts of that State would have determined whether they would have recognized the doctrine of comity, as was done in Newsum v. Hoffman, (Tenn.) 131 S. W. 490, or whether they would have settled the rights of the parties according to their own decisions, as was done in the case of Kirk v. Bailey-Ball-Pumphrey Co. (Tenn.) ms. op.

The cotton in controversy was grown in Arkansas on the land of the plaintiff, and she had a lien on it under our statute for the rent which had not been paid to her. The cotton was shipped to cotton factors at Memphis, Tenn., by the tenant without the landlord’s consent. Then the cotton was sold without the landlord’s consent to a bank in Arkansas which had notice of the landlord’s lien. Under our own decisions in «uch cases, where the property has been wrongfully sold, equity fixes a lien on the proceeds in the hands of a purchaser with notice of the landlord’s lien. Reavis v. Barnes, 36 Ark. 575, and Judge v. Curtis, 72 Ark. 132.

The plaintiff’s rights are secured by the statutes of this State, and the defendant resides in the State. The court had jurisdiction of the person of the defendant and the proceeds of the cotton in his hands. In such cases the rights and remedies are determined by our own laws and the decisions of the courts of this State.

As said in discussing a precisely similar question in Atkinson v. Jones, 96 Ala. 214, 10 So. 846, it would be a strange principle of law which would hold the defendant liable if the cotton had been purchased by it in Arkansas and removed by it into Tennessee, and yet exempt it from liability if it should buy the cotton in Tennessee with notice of the lien and bring the proceeds of the sale of it back into the State of Arkansas.

The precise question here involved was decided by this court in this way in Judge v. Curtis, 72 Ark. 132, In that case the cotton was raised in Arkansas and shipped by the Arkansas tenant to a Tennessee factor. The landlord brought suit in Arkansas against the tenant and the Tennessee factor. Personal service was had upon the tenant, and the factor filed an answer after being constructively summoned. The court held that, while the remedy of the absolute owner of property converted by another is at law, a mere lienor’s remedy in such case is in equity to fix a lien on the proceeds in the wrongdoer’s hands. The court further held that a purchaser of a tenant’s crop takes it charged with notice of the landlord’s lien if he knew that the relation of landlord and tenant had existed during the previous year, and had no reason to believe that such relationship had ceased to exist.

Therefore, it was held that the landlord had a right to recover the proceeds of the cotton from the merchant in Memphis to whom it had been shipped in part payment of a mortgage executed by the tenant to such merchant. It is true that no point was made in that case about the property being shipped into Tennessee, and the court did not consider that fact in rendering its opinion. The reason was that the rights of the parties were being adjudicated in a court of this • State which was enforcing a lien given by a statute of this State against persons who had come under the jurisdiction of an Arkansas court. Therefore it did not make any difference what had been done with the cotton. It was held that an Arkansas court could enforce a lien given by the statutes of Arkansas to its own citizens against persons in another State who had submitted themselves to the jurisdiction of the Arkansas court. This is the ordinary way in which courts decide cases, and the doctrine of comity has no place in such cases.

Comity, in the very nature of things, means that the courts of one State will enforce the rights of parties arising under the laws of another State where the property in question has been brought into the jurisdiction of the former and such enforcement does not violate its own laws.

To sustain its position that the law of Tennessee must govern on the question of liability in the presen! case, the majority opinion relies upon Wilson-Ward Co. v. Farmers’ Bank & Trust Co., 153 Ark. 368. In that case an Arkansas farmer executed a chattel mortgage on a crop of cotton to be grown in Arkansas to an Arkansas bank, 'and the mortgagor, without the consent of the mortgagee, shipped the cotton to cotton factors in Memphis, Tenn. The mortgage was a valid one, and the mortgage debt was due and unpaid. The cotton factors answered the suit brought against them- in a court of this State for the conversion of the cotton, and this court properly affirmed the judgment of the circuit court; but it seems gave the wrong reason therefor. It relied upon the case of Newsum v. Hoffman, decided by the Supreme' Court of the State of Tennessee and reported in 124 Tenn. 369, 137 S. W. 490, where the court held that the rights of the parties under a chattel mortgage given in another State would be enforced under the doctrine of comity according to the laws of such State where the property was removed to Tennessee without the consent of the mortgagee.

If the mortgagee in the case of Wilson-Ward Co. v Farmers’ Bank & Trust Co., supra, had sued the cotton factors in Tennessee, the case of Newsum v. Hoffman, supra, would have applied, and by comity the rights of the mortgagee under the Arkansas mortgage on cotton grown in Arkansas and removed to Tennessee without the consent of the mortgagee would have been enforced by the courts of Tennessee. But, instead of considering and discussing what the courts of Tennessee would have done had the suit been brought in that State, this court should have applied the laws and decisions of the State of Arkansas to the case.

The other case relied upon by the majority opinion is that of the Security Bank & Trust Co. v. Bond, 132 Ark. 592. In that case the courts of this State were enforcing the rights of the parties arising under the statutes of Mississippi to property brought from Mississippi into Arkansas. That was a ease of comity, and, as we have attempted to show, has no application to cases where the Arkansas courts are enforcing the rights of parties under an Arkansas statute. In short, our opinion is that, as long as the wrongdoer in cases of this sort submits himself to the jurisdiction, or is found and summoned in this State, the Arkansas courts should administer the laws of Arkansas in the Arkansas way, according to our own decisions.

It will be time enough to say that the decisions of another State must govern when our citizens are compelled to resort to the courts of such State to enforce their rights under our statutes. We have not found any case which holds that, in interpreting or enforcing the rights given by its statutes to protect its own citizens, the courts of one State should yield to the decisions of the courts of another State, instead of applying the decisions of its own courts. Therefore we respectfully dissent. •


text:
    Emerich v. Bourland.
    Opinion delivered January 22, 1923.
    1. Municipal corporations — improvement district — territory included. — Special Acts 1921, p. 675, authorizing the organization of an improvement district embracing “all the real estate in the city of Fort Smith” was not invalid for insufficient description of the territory included,

      2. Municipal corporations — improvement district. — Special Acts 1921, p. 675, authorizing the organization of an improvement district to acquire and own a waterworks system already constructed by two other districts, and to enlarge and extend it, was not invalid as conflicting with art. 19, § 27, of the Constitution, relating to assessments on real property for local improvements in cities and towns, on the ground that an improvement already made through another agency does not constitute a local improvement within the meaning of the Constitution.
    3. Municipal corporations — waterworks improvement district.— Special Acts 1921, p. 675, authorizing the organization of an improvement district covering the entire city of Fort Smith for the purpose of acquiring, operating and extending a waterworks improvement system constructed by two other improvement districts, and providing for the consent of a majority in value of the property owners of the entire city, is not invalid in failing to provide for the consent of a majority in value of the property owners in each of the other improvement districts.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    affirmed.

      James B. McDonough, for appellant.
    1. Act No. 336, Special Acts 1921, p. 675, is in contravention of § 27, art. 19, of the Constitution, providing for assessments oil r.eal property for local improvements in cities and towns. The Constitution does not authorize the formation of improvement districts for refinancing and purchasing or otherwise acquiring the bonds and obligations of existing districts. It limits the power of the Legislature to providing for local improvements# 98 Ark. 543; Page & Jones, Taxation by Assessment, § 242 and cases cited; Id., §§ 286, 287; 114 Ark. 324; 113 Ark. 590; 115 Ark. 194; 74 Pac. 869; 149 Mich. 536; Page & Jones, Taxation by Assessment, §§ 368, 370, 377, 386; Id., §§452, 458, 461; 230 111. 80; 246 111. 43; see also §§ 6, 7, 8, 18, 19, 20, 35 and 36 of the act.
    2. The effect of the following recent decision of this court is to sustain the unconstitutionality of this act. 242 S. W. (Ark.) 547. Moreover, the act is unconstitutional in that it permits a new district to be formed without the consent of the majority in value of real property owners in each of the old districts. 125 Ark. 57.
    3. The act is void because it does not give with certainty the boundaries of the district. 116 Ark. 167; 113 Ark. 566; C. & M. Dig., §§9736 and 1501; 95 U. S. 242; 19 Johnson, 73; 97 Ala. 465; 46 N. Y. S. 492; 66 Atl. 1099; 22 Am. and Eng. Enc. of L., 300 “Chattels Real.”

      Facljo Cravens and Daily & Woods, for appellee.
    1. The Constitution is not a grant or enumeration of powers vested in the legislative ■ department, but a limitation upon the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution. 1 Ark. 511; 60 Ark. 343; 59 Ark. 513, 528, 530; 99 Ark. 100. The act under consideration complies in every particular with art. 27, § 19, Constitution, in that it provides in express terms that the “consent of the majority in value of the property owners, owning property adjoining the locality to be affected” must first be obtained. 131 Ark. 59.
    2. The act, § 2, authorizes the physical acquisition of an existing system and the construction of improvements and extensions thereto, and an assessment of benefits against all the real property benefited to pay for this improvement. This was within the power of the Legislature. 121 Ark. 105. To say that it is not a local improvement of a public nature is to deny the binding force of Crane v. Siloam Springs, 67 Ark. 30. Sembler v. Water S Light Improvement District, 109 Ark. 90, settles the real issue in this case.
    3. The bqundaries of the district are given with certainty by section 1 of the act, and that section is a-definite description of the lands embraced within the limits of the district. 90 Ark. 29, 36; 96 Ark. 413; 70 Ark. 451; 138 Ark. 344.
   McCulloch, C. J.

During the year 1907 an improvement district, known as Waterworks Improvement District No. 1, was formed in the city of Fort Smith, pursuant to general statutes, for the purpose of acquiring and operating a waterworks plant which had theretofore been built and operated by a private corporation. ■ There was a special statute expressly authorizing such acquisition by the district thus formed. The territory of that district was coextensive with the city limits as then existent, but the city limits were subsequently extended, and a large territory added to the city.

Later, another district, known as Waterworks Improvement District. No. 2, was formed, embracing a portion of the new territory added to the city, and this was for the purpose of extending the waterworks over the territory of the new district. These two districts were taken over and have been operated by the city in accordance with the provisions of the statute. Crawford &-Moses’ Digest, § 5737 (act No. 158 of the session of 1911).

The General Assembly of 1921 (Special Acts 1921, p. 675) enacted a special statute authorizing the organization of a district in Fort Smith covering the whole of the city’s territory, as now existing, into an improvement district to “acquire and own the waterworks system and plant heretofore purchased, constructed and improved by Waterworks Improvement District No. 1 and Water District No. 2 of the city of Fort Smith, and to enlarge, improve, extend, repair and maintain said system, as in this act provided.” The statute provides that the district can operate only after the consent of a majority in value of the owners of real property in the district is shown by a petition filed with the city clerk. The statute provides for the formation of plans for the enlargement, improvement and extension of the Avater system so as to serve all of the territory in the district, and authorizes the issuance of bonds to pay for the improvement. It also appears that bonds were issued by Water works Improvement District No. 1, which are still immature and outstanding, and that there are immature assessments outstanding in both of the old districts.

The statute referred to creating the new district provides for the assessment of benefits, and that the new district shall assume all the obligations of the old districts, but that none of the rights and remedies of the creditors of the old districts shall be displaced until payment is made by the new district in accordance with the terms of the statute.

Appellants, owners of real property in the district, instituted this action against the mayor and other members of the board of improvement of the new district to restrain proceedings under the new statute, alleging that the statute is void.

It appears from the pleadings in the case that a majority in value of the owners of real property in the district have expressed their consent to the new organization in the manner prescribed by the statute.

One of the grounds on which the validity of the or- • ganization of the new district is assailed is that.the territory is not properly described in the statute.

The statute describes the limits of the district as ‘ all of the real estate in the city of Fort Smith. ’ ’ There is no doubt about the meaning of that language, and it seems sufficiently clear and definite to accurately describe the territory to be included. Boles v. Kelley, 90 Ark. 29; Board of Improvement v. Carman, 138 Ark. 339. We see nothing in this contention to justify us in holding that the district is void.

The principal contention of appellants is that a statute authorizing the formation of an improvement district in a city or town for the purpose of acquiring a system of waterworks already constructed is in conflict with § 27, article 19, of the Constitution in relation to “assessments on real property for local improvements in towns and cities.” The contention is that, the acquisition of an improvement already made through another agency does not constitute a local improvement within the meaning of the Constitution. This is a very narrow view of the constitutional provision, which was intended only to place a restriction upon the formation of improvement districts in cities and towns by requiring that it be done upon the consent of a majority in value of the property owners, and that the assessments “shall be ad valorem and uniform,” but there was no attempt to define what would constitute a local improvement. It is true that the statutes of this State, as originally enacted pursuant to the terms of the Constitution, did not authorize formation of districts for the acquisition of property, but we have decided that it is within the power of the Legislature to confer such authority, and no doubt on that subject was expressed by the court. Sembler v. Water and Light Imp. Dist., 109 Ark. 90.

An improvement may be a benefit to the property in a given locality, whether it is constructed through the agency of a district created for that purpose or by acquisition from some other agency by which it was constructed. Moreover, the purpose- of the formation of this district was not merely the acquisition of the system, but to extend it and to repair and improve it. The validity of a similar district was upheld by this court in a recent decision, though the point was not discussed. Lewis v. Forrest City Special Improvement District, ante, p. 356.

It is also contended that the act is unconstitutional because the aufhonzing of the acquisition of the water system owned by the old districts without the consent of the property owners in the old districts places a burden upon them without their consent. In other words, it is argued that this statute does not provide for obtaining the separate consent of the owners of property in each of the old districts, but merely for the consent of a majority in value of the owners of-property in the new district.

There is nothing- in the-Constitution which requires the consent of each individual property owner, or a majority of any particular group of property owners, except that there must he obtained the consent of a majority in value of the owners of property affected by the improvement. The constitutional requirement was therefore complied with by obtaining a majority of all the owners of property in the district. The extent of the benefits to any particular property is not involved in the expression of consent of a majority of the whole. The legislative branch of the government, without constitutional restrictions, confers the authority to dispose of the improvement to another agency for the pupose of extending it or maintaining it, and this imposes no additional burden on the owners of the property except for benefits which may be derived and to be ascertained in the proper way.

The rights of the property owners as well as creditors of the old districts are fully protected by the' provisions of the statute imposing upon the new district an assumption of the debts of the old ones and by leaving-unimpaired the obligations of the old districts and the rights of creditors until their satisfaction by payments to be made by the new district.

We are unable to find any phase of this statute which offends against the Constitution — at least none have been brought to our attention — and we are of the opinion that the chancery court was correct in dismissing the complaint of appellants.

The decree is therefore affirmed.


text:
    Sale v. Road District No. 16 of Woodruff County.
    Opinion delivered January 22, 1923.
    1. Highways — road improvement district — deviation prom established road. — Where a special statute authorizing- the improvement of a highway particularly described the route of the road, in some places designating it as the route of a public road and in other places designating- it by section lines and corners, but the evidence shows that the route runs along an established public road, the fact that in two or three instances the public road has been slightly shifted for the convenience of travel does not amount to such a deviation from a public road as would affect the validity of the improvement project.
    2. Highways — eoad improvement — discrimination.—Where a road improvement district created by special statute was bounded on one side by a river having sharp bends, so that certain territory outside of the district, being on the opposite side of the river was much nearer to the road than territory included within the district, the statute authorizing the improvement was not for that reason arbitrary and discriminatory.
    3. Highways — road improvement discrimination. — Inclusion within a road improvement district separated from other land contiguous to the road by a body of water was not arbitrary where such land was accessible from the road by a bridge at one place and a ferry at another.
    4. Highways — zone system of assessment.' — The zone system of of assessing the benefits of a road improvement will be upheld where it appears that the assessors considered all the elements affecting the benefits.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.

      R. M. Hutchins, Mehaffy, Donham & Mehaffy and E. L. Boyce, for.appellants.
    The whole of the route of the road as laid out by the Legislature does not traverse a public highway, and no proper steps to declare such portion of the route a public highway have been taken. 138 Ark. 549; 147 Ark. 160; 91 Ark. 274; 118 Ark. 125; 89 Ark. 513. Act 183 is void because it includes a portion of White County in the district .without providing machinery for the levy and collection of taxes thereon. There are certain lands tying in the district which are not taxed.
    The assessments were void and not made in accordance with rules heretofore declared fair and just in 141 Ark. 164; 139 Ark. 322; 64 Ark. 265; 86 Ark. 15.

      Roy D. Campbell, Harry Woods and Coleman, Robinson & House, for appellees.
    The Legislature has discretion in determining the boundaries of a road district. 139 Ark. 1.53; Id. 431; 213 S. W. (Ark.) 726.. The route of the road is along the public highway in its entirety. The assessments were made on the zone basis, taking into consideration all the elements going to show actual benefits, and is in accordance with numerous cases upholding this manner of mailing assessments. See 141 Ark. 164; 143 Ark. 341; 139 Ark. 322; 135 Ark. 155. .
   McCulloch, C. J.

The road improvement district involved in this controversy is one created by special statute (unpublished) of the extraordinary session of-the General Assembly held in January, 1920, authorizing the improvement of a road running from a certain designated street corner in the town of Augusta to the north boundary line of' Woodruff County. The route of the road is particularly described, in some instances being designated as the route of a public road, and in other places merely designated by section lines and corners.

This suit was instituted in the chancery court of Woodruff County by appellants, who are the owners of real property in the district, attacking the validity of the organization and also the validity of the assessment of benefits. One of the points of attack is that the route of the road described does not follow the established public road, but the evidence in the case does not bear out this contention. While the calls in the description of the route of the road do not in each instance refer to the road as a public road, the evidence in the case is sufficient to show that it is, in fact, a public road running along the designated route, but that in two or three places the route of the public road has been very slightly shifted for the convenience of travel. These shiftings of the route, however, are slight and are not sufficiently material to be treated as a substantial deviation from the route designated in the statute. In fact, the evidence shows that the designated route conforms to the original route of the public road which will be adhered to as a public highway, notwithstanding the slight shiftings in the places mentioned for the convenience of travel. At any rate, this is not such a deviation of the route of the road as would affect the validity of the project authorized by the statute. Crawford v. Pulaski Road Improvement District No. 10, 154 Ark. 311.

The next ground of attack on the validity of the orr ganization is that a small tract of land on the west side of White Biver, and in White County, is included in the boundaries of the district without providing any method for supervision of the assessments in that county.

The boundaries of the district are described in the statute by following section lines or lines of section subdivisions and by following the meanderings of White Biver at the place where the district is bounded by that stream. White Biver is the boundary line between White and Woodruff counties, and this district is created as a Woodruff County district, the road to be improved being entirely in Woodruff County, and all of the proceedings are to be conducted in that county. The small tract of land which it is claimed is within the district and in White County, according to the designated boundaries of the district, contains about an acre and a half in area, and the evidence shows that this is merely a sandbar formed in the bend of the river and is submerged at any stage of water above ordinary. However, it is clear from an examination of that part of the statute which describes the boundaries of the district that, if this sandbar be deemed a tract of land, and is in White County, it is an obvious mistake in the designation of the boundary at that place, for the language of the statute unmistakably indicates that it was not the intention to include any lands west of White Biver.

There are sharp bends in White Biver where it bounds this district on the west, and one of these points is opposite the town of Augusta, which is situated on the east bank of the river. The bend of the river, at the place, forms almost a complete loop across from the town of Augusta, and the area embraced in this loop, being west of the river, is not included in the district. Another double bend to the westward leaves a large area in the district east of the river, but due west of the lands in the loop just mentioned. It is contended that these lands in the loop west of the river are closer to the improvement than the lands across the river but west of the loop, and that this presents an instance where lands close to the road are omitted. from the district whilst lands further removed are included. A consideration of the location of these lands makes it obvious that there is no discrimination, for the lands within the loop mentioned are on the west side of the river, while the other lands are on the east side. Therefore the determination that one of the areas mentioned — that on the west side, of the river — will not be benefited and that the other area on the east side will be benefited, is not arbitrarjL This feature of the case is ruled by our decision in Sadler v. McMurtrey, 152 Ark. 621, and Neterer v. Dickinson, 153 Ark. 5. This attack upon the validity of the statute as being arbitrary and discriminatory is therefore unfounded.

Again, it is urged that thp statute is void because it includes lands that are west of a certain stream or body of water which completely separates these lands from the area which are contiguous to and may be benefited by the improvement.

Taylor’s Bay, the body of water mentioned, runs north and south, parallel with White River, and empties into that stream at a point where.it forms the boundary of the district. About two and a half sections of land in the district lie west of Taylor’s Bay and is subject to overflow from White River. It is contended that these sections of land are cut off from the district and cannot possibly receive any benefit from the road, which is situated several miles east of Taylor’s Bay. The evidence in the case shows that these lands, while subject to overflow, are of considerable value, especially for grazing purposes, and that the value can be enhanced by draining and leveeing, and that they are accessible from the road to be improved by reason of a ferry at one place on Taylor’s Bay and a bridge at another place. The principle announced by this court in Rogers v. Highway Improvement District, 139 Ark. 322, is controlling in determining whether or not the inclusion of these lands in the district was arbitrary and without justification.

Finally, it is contended that the assessment of benefits is arbitrary and without any foundation in reason, and that it should be set aside. There was considerable testimony adduced on this subject, and there is a conflict in the opinion of witnesses as to the justice of the assessment. The assessors adopted what is termed the zone system, dividing the territory into four zones, according to the distance of the lands from the road, and fixing a flat rate for each zone, except that the assessments on lands subject to overflow west of Taylor’s Bay were fixed at one-half of the rate fixed upon other lands in the same zone.

The testimony warrants the conclusion that the assessors did not act arbitrarily in adopting the zone system, but that, on the contrary, they considered all of the elements which might enter into the question of benefits, and reached a conclusion after consideration of those elements. It is not a case, according to the evidence, of an arbitrary adoption of a certain method of appraising benefits in disregard of all other considerations which might affect the question. We have upheld, in a number of cases, this method of assessment where the proof showed that it was adopted upon proper consideration of the elements affecting benefits. If there was any error in the adoption of the zone system, it was, according to the evidence, an error of judgment, and did not result from an arbitrary disregard of all the elements which should have been considered.

We'find that all of tlie attacks upon the validity of the district and upon the assessment of benefits are unfounded.

The decree of the chancery court dismissing the complaint for want of equity is. correct, and the same is in all things affirmed.


author: Wood, J. McCulloch, C. J.,

text:
    Gaster v. Dermott-Collins Road Improvement District.
    Opinion delivered January 22, 1923.
    1. Statutes — time of taking effect. — Under Const, art. 5, § 1, as amended by amend. No. 7, and act No. 2 of Ex. Sess. 1911, carrying such amendment into effect, held, an act without an emergency clause does not become operative until 90 days after the adjournment of the. Legislature.
    2. Highways — election to approve creation of district — validity. — -Under act 240 of Sp. Sess. of 1911, creating the DermottCollins Road Improvement District, which provided that it should not become operative until approved at a special election, held that an election conducted before 90 days had expired after the adjournment of the Legislature, at which time the act went into effect, was premature and void.
    3. Evidence — judicial notice of special elections. — The courts cannot take judicial notice as to when elections are held under special acts of the Legislature.
    4. Statutes — referendum—legislative power. — It is not within the power of the Legislature to deprive the voters of the right under the Constitution to have all laws referred to them except those necessary for the immediate preservation of the public peace, health or safety, and therefore it cannot be held §§ 36 and 37 of act 240 of Sp. Sess. of 1911, providing for a special election by voters of the district for the adoption or rejection of the act was a referendum pursuant to Crawford & Moses’ Dig., § 9767.
    5. Highways — improvement district — limitation.—'Where an election was held under act 240 of Sp. Sess. 1911 before the act became operative, § 11 of such act limiting the time for attacking assessments was inapplicable to assessments made pursuant to such premature election; such assessment being void.

      Appeal from Chicot Chancery Court; E. P. Toney} special chancellor;
    reversed.

      Golden £ Golden, for appellant.
    The act in question has never become operative because .the election called for the approval thereof was unauthorized and void. 104 Ark. 583; 110 Ark. 528; 117 Ark. 266; 151 Ark. 369. The commissioners had no right to change the plans and specifications after the petitions were filed. 150 Ark. 379; 230 S. W. 11; 135 Ark. 102; 120 Ark. 277; 142 Ark. 509; 133 Ark. 491.

      John Baxter, for appellee.

      Henry £ Harris, amici curiae.

   Wood, J.

This is an action by the appellant, a resident taxpayer in Dermott-Collins Road Improvement District, against the district and its commissioners to restrain them from collecting assessments, selling bonds, and from proceeding with the construction of the improvement for which the district was created. The district and its commissioners will hereafter be called appellee.

The appellant, after alleging that he is a landowner and taxpayer within the boundaries of the district, set up that the appellee was attempting to collect the first installment of assessment of benefits that had been levied by the appellee against his land. Appellaut challenged the authority of the appellee to collect the assessment on the following grounds, to wit: “ (1). The act creating the district has never become operative. (2). The district lias no right to spend more than $200,000 in the construction of the road. (3). If the plans and specifications are changed, the assessments already made will be void. ’ ’

After a consideration of the record the conclusion we have reached makes it unnecessary to consider any but the first ground.

Appellee district was created by act No. 240 of the extraordinarv session of the General Assembly of the State of Arkansas, approved Februarv 20, 1920. The last two sections of the act are as follows:

“Sec. 36. This act shall not become effective until the same has been approved by a majority of the qualified electors residing within the district and voting at a special election to be called by the chancery judge of the Second Chancery District of the State of Arkansas. Said chancery judge shall have full power to call said election on a day to be fixed by him, and he shall designate the polling precincts, appoint judges and clerks, and make such other order? as are necessary. for the proper conduct of the election. Returns from said election shall be presented to said chancery judge within three days after said election, and any contest of the election shall be heard before him, provided same is filed within ten days after the election, and his certificate of the return of the election filed with the chancery clerk of Drew and Chicot Counties shall be conclusive proof upon all parties as to the result of the election.”
‘ ‘ Sec. 37. Ail laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after its adoption at the special election hereinbefore referred to.”

It will be observed that the emergency clause is not attached to the act.

Under article 5, § 1 of the Constitution of the State of Arkansas as amended by Constitutional Amendment No. 7 (Crawford & Moses’ Digest, p. 131) and put into effect by act No. 2 of the General Assembly of the State of Arkansas, approved June 30, 1911, no act becomes operative, unless the emergency clause is attached thereto, until ninety days after the adjournment of the General Assembly. “All legislative enactments except those necessary for the immediate preservation of the public peace, health and safety, are subject to the operation of the initiative and referendum and do not go into effect until the expiration of ninety days after final adjournment of the Legislature.” Ark. Tax Com. v. Moore, 103 Ark. 48; Amend. No. 10, digested as Amend. No. 7, Crawford & Moses’ Digest, supra; Fenolio v. Se bastian Road Dist., 133 Ark 380. Until the expiration of such time, the voters, under the referendum clause of the Constitution, had the power to refer the act to the-people as a whole for approval or rejection thereof at the next general election. Crawford & Moses’ Digest, p. 131; Const, article 5, § 1, and amend. No. 7; Thompson v. State, 151 Ark. 369. See also Hodges v. Dawdy, 104 Ark. 583; Tomlinson Bros. v. Hodges, 110 Ark. 528; Hodges v. Board of Imp., 117 Ark. 266.

It is conceded -by counsel for the appellee that the election under which the act creating the district was to become operative was held on March 27, 1920. This election was without authority of law and therefore void, because, at the time it was held the act authorizing such an election itself had not become a law. Since the act itself which authorized the people to approve the same by an election did not go into effect until after such election, it is manifest that the chancery judge had no authority under the act to call the election for March 27, 1920, and that the election held under such call was premature and void. Van Hook v. Wallace, 143 Ark. 203. In Thompson v. Trice, 145 Ark. 143, we held that “the Legislature cannot delegate to another its power to enact laws, but may make the enforcement of the law dependent upon a condition or contingency. The law'was made by the Legislature to become operative upon condition of its adoption by a majority of the qualified voters in the district.” In that case the constitutionality of the act now under review was challenged; also the constitutionality of the act and the. validity of the assessments thereunder were attacked in the recent case of Bulloch v. Dermott-Collins Road Imp. Dist., 155 Ark. 176. But the issue here raised was not drawn to the attention of the court in those cases.

In Fenolio v. District, supra, we had under review an act creating an improvement district and containing provisions for an election to be held within two years from the passage of the act for the approval of the act by the people of the district. In that case the court said: ‘ ‘ The act was approved February 26, 1913, but it did not declare the existence of an emergency, and therefore went into- effect ninety days after the adjournment of the Legislature, according to the referendum clause of the Constitution.”

This court cannot take judicial knowledge of the time when elections are held under special acts of the Legislature. Therefore, since our attention was not called to the time when the election was held for the approval of the act now under review by the people of the district, the former cases in which we upheld the validity of the act are not decisive of the issue here for the first time presented.

But the appellee 'Contends that the Legislature itself ordered the referendum on the act; that sections 36 and 37, providing for the special election for the adoption or rejection of the act by the majority of the voters of the district, were tantamount to a referendum of the act by the Legislature. Section 9767 is as follows: “The General Assembly may order the referendum upon any measure enacted thereby, and the same shall be voted upon and the result of the vote thereon declared in the same manner as measures upon which the referendum has been ordered by petition, or at such time and in such maimer as the General Assembly may direct.” The act under review, of which sections 36 and 37 are a part, was the subject of a referendum to the voters of the whole State under Amendment No. 7, supra, of the Constitution, because the emergency clause was not attached to the act. Thompson v. State, supra. It is not within the power of the Legislature to deprive the people of the right under the Constitution to have all laws referred to them, except those laws necessary for the immediate preservation of the public peace, health or safety. Since the emergency clause was not attached to the act showing the existence ' of an emergency, the act was the subject of a referendum under Amendment No. 7 of the Constitution, supra, and did not become operative until ninety days after the Legislature adjourned.

To hold that sections 36 and 37 were equivalent to a referendum by the General Assembly would render the whole act unconstitutional.

Appellee further contends that appellant cannot maintain this action because of section 11 of the act, which reads as follows: “Any party who may have complained in writing of any of said assessments of benefits or damages, and who feels aggrieved by the action of the commissioners after the hearing herein provided for, and any other person whomsoever who may have any objection to any assessment of benefits or damages, or to any other proceedings under this act, or action of the commissioners, shall file his complaint thereof in the chancery court’ having jurisdiction within thirty days after the hearing by the commissioners herein provided for, and any party not complaining within that time shall be deemed to have waived any objection he may have thereto of any assessment of benefits or damages, and shall not be heard to complain in law or equity thereafter; and no suit shall thereafter be brought in any court attacking (he validity of any of said assessments of benefits or damages.”

This section can not avail appellee as a defense to appellant’s action because, as we have shown, the act itself has not yet become effective. 'Before the act can become operative, there must be an election held at which a majority of the qualified electors residing within the district approve the act. Such an election has not yet been held. The holding of an election before such time and before there was any law under which an election could be held was not a mere irregularity, but a fundamental step whollv unauthorized by law, and therefore not binding on the taxpayers of the district upon whose property assessments have been levied to pay for the contemplated improvement.

We conclude therefore that the assessment which the appellee is attempting to collect from the appellant is without authority of law and void. The decree of the chancery court holding otherwise is reversed and the causé is remanded, with direction to enjoin the appellee from collecting any assessment against appellant and from further proceeding under act 240 until sáme shall have become effective in the manner therein provided.

McCulloch, C. J.,

(dissenting). The holding of the election before the statute became effective was a mere irregularity, and was too late, after the approval of assessments and notice thereof, to raise the question of the election not having been properly held. The manifest purpose of the lawmakers was to base the operation of the statute upon obtaining the consent of the electors, and an election held before the expiration of the referendum period was just as effective for that purpose as one held thereafter.

Smith, J., concurs.


author: Wood, J.

text:
    Tunstill v. J. T. Fargason Company.
    Opinion delivered January 22, 1923.
    1. Factors — right op action against principal. — Evidence held sufficient to establish the relation of debtor and creditor between a factor and his principal, so that a suit on the indebtedness was not premature, even if the rule that a principal owes no debt to the. factor except for the balance due after sale of the goods were adopted.
    2. Factor — duty to account to principal. — A factor cannot maintain an action against his principal without accounting for all of the goods shipped to the factor.
    3. Fraudulent conveyances — evidence.—Evidence held to sustain a finding that a debtor’s conveyance of all of his property to his wife for a nominal consideration was in fraud of his creditors.
    4. Factors — notice that principal was acting as agent. — In an action by a factor to recover advancements made to his principal upon drafts drawn in the principal’s name and attached to bills of lading covering shipments in his name, evidence held to sustain the chancellor’s finding that the factor and the bank which cashed the drafts had no knowledge that the principal was acting merely as agent for others.
    Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      John W. Scobey, for appellant.
    The relation of debtor does not exist until after the goods held by the factor has been disposed of and applied to a payment of advances. 3 A. L. R. 287; 5 L. R. A. (N. S.) 1147; 214 Pa. 258 ; 63 Atl. Rep. 745. Proof of the insolvency of the defendant should have been proved. 66 Ark. 486.

      Cooley é Adams, for appellee.
    While the lien attaches, he does not have to pursue that remedy; he may maintain an action 'against the principal before the lien attaches. 60 Ark. 357; 117 Ark. 180; 134 Ark. 580; 11 R. C. L. p. 774, § 28. The fact that somebody offered thirty cents for the cotton at Lepanto does not establish its market value in Memphis. By shipping* the cotton he tacitly ag’reed to be bound by the Memphis market. 78 Ark. 402; 11 R.. C. L. p. 766, sec. 17; 25 C. J. pp. 357-358, § 33. Conveyances made to members of a household and near relatives of an embarrassed debtor are looked upon with 'suspicion, and scrutinized with care. 74 Ark. 174; 133 Ark. 250; 134 Ark. 241; 136 Ark. 115.
   Wood, J.

This action was begun by the appellee in the circuit court against the appellant to recover the sum of $1,448 alleged to be due the appellee for money advanced to O. L. Tunstill and to set aside a conveyance executed on January 6, 1921, from Tunstill to his wife, which, it is alleged, was made to defraud the creditors of Tunstill. All of the material allegations of the complaint were denied by the appellant, and they set up that the real estate conveyed was the homestead of appellants, and that the cotton shipped by Tunstill to the appellee was owned by others, and that the credit extended by the appellee to Tunstill was upon the value of the cotton at the time and not to Tunstill. On motion of the appellee, and over the objection of appellants, the cause was transferred to the chancery court.

The testimony adduced by the appellee tended to prove that the appellee is a corporation engaged in the business of cotton factors at Memphis, Tennessee. Tun-still shipped cotton to the appellee for sale, and drew against it. It was the custom of appellee, as factor, to advance money against cotton shipped to it. Tunstill shipped to the appellee nine bales of cotton and drew on the appellee in favor of the First National Bank of Lepanto, during the month of January, 1920, for sums amounting in the aggregate to $1,275, which amounts were paid to appellee.

At the time the cotton was shipped and the drafts of Tunstill were paid, the appellee had no knowledge of the fact that the cotton did not belong to Tunstill. Appellee knew, in a general way, that Tunstill was rated as a fair man. “It considered him a reliable, straightforward sort of man, and the cotton that he shipped in at the time was also an additional security.” Appellee thought it was safe in making him the advance, whether the cotton paid the account or not. It extended credit both on the security of the cotton and the personal standing and financial responsibility of Tunstill. The manner of dealing with Tunstill was the usual one for cotton factors like the appellee. The appellee sold one bale of the cotton February 2, 1921, for five cents per pound, realizing the sum of $20.04, and sent Tunstill notice of the sale. On February 16, 1921, he replied that.he did not want any more of the cotton sold at such price. On February 19, 1921, the appellee wrote to Tunstill telling him that his cotton was of a class that it would be almost impossible to dispose of it, calling his attention to the condition of the world market, and suggesting that it would be a better policy “to realize whatever possible on this cotton of extremely low grade, and not to be particular about the price.” Tunstill made no reply to this letter. On May 14, 1921, appellee sold three more, of the bales of cotton at the sum of $54.27. The four bales of cotton brought the sum of $74.31. The account of Tunstill with appellee was made up of the advances and interest thereon at the rate of eight per cent, per annum, freight and charges, and the sum of $40 advanced to Cooley & Adams as lawyers’ fee and -court costs, which, after deducting the sum of $74.31, left the sum of $1,548.99 the amount claimed to be due the appellee. The testimony on behalf of the appellee further tended to prove that this cotton was of such a low grade that there had been demand for it only at five and six cents, and some cotton of such low grade had sold for three cents.

The uncontroverted testimony on behalf of the appellants was to the effect that Tunstill did not own the cotton shipped to appellee and had no interest in it. It was in his name, but was owned by one T. E. Maynard and one E. C. Taylor. They owned the .cotton, and Tun-still shipped it in his name to accommodate them. They received from Tunstill the money on the drafts drawn by Tunstill on the appellee in favor of the Bank of Lepanto. The appellant did not get the money. It came in his name, but the owners of the cotton, received it. The owners went to the Bank of Lepanto, presented the bill of lading with the draft attached, and the bank paid the money to Tunstill, and Tunstill paid it over to the owners of the cotton. There was testimony on behalf of the appellants tending to prove that the owners of the cotton were offered thirty cents a pound for the cotton in Le-panto before shipping it, which they refused.

The cashier of the First National Bank of Lepanto testified to the effect that the appellee honored drafts drawn by anybody against cotton that was recommended by the First National Bank of Lepanto, and that, if this cotton had been shipped in the name of the owners, drafts would have been paid anywhere from $75 to $125 each per bale. This witness, on cross-examination, testified that Tunstill was good for any financial obligations he incurred. He had been in Lepanto a long time, and witness would not say that Fargason Company did not know his standing.

There was testimony on behalf of the appellee lend ing to show that the value of the real estate conveyed by Tunstill to his wife was from $1,000 to $2,500. The consideration named in the deed conveying the property was $1. After the institution of the suit, on the petition of the appellee, the remaining cotton in appellee’s hands was sold by order of the court.

The above are substantially the facts from which the court found that Tunstill was indebted to the appellee in the principal sum of $1,184.34. The court further found that the conveyance of the real estate from Tunstill to his wife was fraudulent and void. The court rendered a decree in favor of the appellee in the sum of $1,1,84.34, and directed that, unless the same be paid within silty days from the date of the judgment, the real estate described in the conveyance and set forth in the decree be sold to satisfy the decree. From this decree appellants prosecute this appeal.

1. The appellants contend that the suit was prematurely brought on the ground that the relation of debtor and creditor did not exist between Tunstill and the appellee; that the relation was only that of shipper and factor; and that under such relation no action .could be instituted until all the cotton in the hands of the appellee had been disposed of and the proceeds thereof applied as a credit on the amount advanced. To sustain their contention, appellants cite the cases of Newberger Morris Co. v. Talcott, 219 N. Y. 505, 114 N. E. 846, 3 A. L. R. 287, and Re Jos. D. Murphy Co., 214 Pa. 258, 5 L. R. A. (N. S.) 1147. In the New York case it is said: “The rule in this State is? that, in the absence of some agreement to the contrary, the consigned goods are the primary fund to which, a factor must look for reimbursement.” And in the Pennsylvania case it is held that an agreement by which goods are consigned for sale to persons who are to make advances on the consignment and hold the goods as collateral against the advances does not render the consignor a debtor for the amount of the advances before sale of the goods, but only for the balance unpaid from the proceeds of the sale. Even if it be conceded that the rule is as announced by the Court of Appeals of New York or the Supreme Court of Pennsylvania, still the facts which the preponderance of the evidence tend to prove in the instant case would clearly differentiate it from those cases. Here the chancery court was justified in finding that the appellee made the advances to Tunstill on his financial standing and personal credit as well as on the cotton shipped by him. The testimony for the appellee, which was undisputed by the appellants, shows that, after the sale of the first bale of the cotton, and after Tunstill had objected to a further sale of the cotton by the appellee at such price, the appellee rendered to Tunstill a statement of his account, showing a debit balance, and requested him to settle the same by a note secured by real estate or personal indorsement.

Furthermore, the undisputed testimony of the appellee was to the effect that Tunstill, long before this suit was instituted, acknowledged his indebtedness to the appellee, and offered to pay the same. At one time he offered to pay $300 and allow the appellee to sell the cotton, and offered to give his personal security for the remainder. At another time he offered to give his note for $500 for security and let the cotton stand for the balance. The testimony in the . record ' fully warranted the court'in finding that Tunstill, before this suit was instituted, acknowledged that he was indebted to the appellee for the advancements it had made to him, and that the proceeds of the sale of the cotton he had shipped to the appellee would not be sufficient to liquidate. Even if the New York or Pennsylvania rule applies, under the facts of this record the trial court was fully justified in finding that at the time of tlie institution of this action the relation of debtor and creditor existed between Tunstill and the appellee. Tunstill refused to settle the amount of his indebtedness, the correctness of which he did not dispute, and virtually acknowledged, as we have stated, that the appellee could not reimburse itself from the proceeds of the sale of the cotton. Therefore the relation of debtor and creditor did exist between the appellee and Tunstill at the time of the institution of this action, and such action was not premature.

“But it has been held that, unless there is an agreement to the contrary, a factor who makes advances on goods consigned to him may maintain an action against his principal personally before the goods are sold, upon the ground that, where an advance is made to the principal, the factor becomes the creditor of his principal and holds as collateral, for the sum or sums due'him, the goods which are consigned. ” Note to Estate of Murphy, 6 Ann. Cases, p. 311; Upham v. Lefavour, 11 Metcalf (Mass.) 174, and other cases there cited; Beckwith v. Sibley, 11 Pick. (Mass.) 482; see also Doran v. Thompson, 126 Mass. 183, and other authorities cited in note. But, to be sure, “in any jurisdiction the factor cannot maintain an action for his advances without accounting for or showing what has become of the principal’s goods.” 19 Cyc. 165. See Mertens v. Nottlebohms, 4 Gratt. (Va.) 163. The appellee fully accounts for the cotton consigned to it.

2. The appellants contend that the action to set aside the fraudulent conveyance cannot be maintained because there was no proof of the insolvency of Tun-still. Two witnesses testified as to the value of the. property conveyed by Tunstill to his wife. One of them was on the assessment board, and stated that he knew Tun still well, and that he knew of no other property owned or controlled by Tunstill except that described in the conveyance to his wife. 'The other witness testified that he was familiar with property values in Lepanto, and was familiar with the property described in the conveyance, and that it was not -worth more than $2,700; that Tunstill did not own any other property that he. knew of.

It occurs to us that this testimony was sufficient to warrant the trial court in finding that Tunstill was insolvent. That is to say, after conveying the property described in the deed, he was wholly unable to pay the debt due the appellee. The deed was executed upon the nominal consideration of $1. At the time the conveyance was made Tunstill was indebted to the appellee in a sum which the latter claimed to be over $1,500, which sum Tunstill has not challenged by Ins evidence and does not dispute in his brief, his only contention as to this being that he was not insolvent. The .court was warranted in finding that Tunstill was in debt in a large amount to the appellee, and that this conveyance would render him utterly unable to pay this debt. There was ample testimony to justify the court in finding that the conveyance from Tunstill to his wife was a voluntary conveyance and made to defraud creditors. See Howard v. Howard, 152 Ark. 387; Harteman v. Lafargue, 140 Ark. 563; Quisenberry v. Davis, 136 Ark. 115, 122; Harris v. Smith, 133 Ark. 250; Wilkes v. Vaughan, 74 Ark. 124.

3. Appellants contend that Tunstill was onty act-’ ing in the capacity of agent for Maynard and Taylor in shipping the cotton, and that the First National Bank of Lepanto was the agent of the appellee, and that the bank had knowledge that the cotton belonged to Maynard and Taylor, and that the knowledge of the bank was the knowledge of the appellee. This contention does not find any support in the testimony. At least the finding of the trial court to the contrary was not clearly against the preponderance of the evidence. In- his dealings with the appellee with reference to the cotton, Tunstill certainty treated the same as his own. We do not find anything in the record to justify the conclusion that the bank,, know, or had notice of such facts as would bring home to it knowledge, that Tunstill was acting as the agent of others. The cotton was shipped in his name, and the drafts were drawn by him in favor of the bank, and the money was paid over to him, and was by him paid to Maynard -and Taylor, the owners of the cotton. .But this did not charge appellee or the bank with knowledge that Maynard and Taylor owned the cotton. On the contrary, practically the undisputed evidence shows that Tunstill, all the way through the transactions, dealt with the appellee and the bank as if he were the owner of the cotton. He did not disclose the fact that he was acting as the agent of Maynard and Taylor until after the institution of this suit.

These were issues of fact which the trial court resolved in favot of the appellee, and its finding is sustained by preponderance of the evidence.. The decree of the chancery court is in all things correct, and it is therefore affirmed.