text:
    Yockey v. St. Louis-San Francisco Railway Company.
    Opinion delivered April 13, 1931.

      PartainS Agee, and G. L. Grant, for appellant.

      E. T. Mille,r and Warner & Warner, for appellee.
   Hart, C. J.,

(after stating the facts). It is sought to uphold the judgment upon the authority of National Liberty Insurance Company v. Trattner, 173 Ark. 480, 292 S. W. 677, and Davis v. Farmers’ Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556.

In the case first cited, this court held that, under our Constitution and statutes relating to foreign corporations doing business in the State and providing for service of process on the Insurance Commissioner in actions against foreign insurance corporations, an insurance corporation of another State can not be sued in Arkansas on a contract of insurance made in another State with a resident of that State covering property located therein. The court recognized the general rule that where -a foreign corporation consents, on coming into a State to do business, service on a designated State officer shall be a valid service on the company in all actions relating to any business done by the company while in the State, but said that it does not extend to business transacted in another State with persons living outside of this State; and we construed our statute to extend only to business done by the foreign corporation in this State and held that the statute did not operate to give service on such foreign corporation in suits relating to business transacted by it in another State with persons living there. In other words, the court held that the statutory service upon a State official or agent of a foreign corporation amounted to an agreement between the State and the foreign corporation for the benefit of the citizens of the State having business with the corporation, and that it did not relate to business transacted by the corporation in other States with people living there.

In the last case cited, the Supreme Court of the United States said that the statute compelled every foreign interstate carrier to submit to suit there as a condition of maintaining a soliciting agent within the State, although it did not operate any kind of railroad in the State. The statute did not limit the jurisdiction to suits arising out of business transacted in the State of Minnesota, but made the service on the agent sufficient for business transacted outside of the State with nonresidents of the State. The court recognized in that case that, ordinarily, effective administration of justice did not require that a foreign corporation should submit to a suit in a State in which the cause of action did not arise, in which the transaction giving rise to it was not entered upon, in which the carrier neither owned nor operated a railroad, and in which the plaintiff did not reside. Hence the court said that such general submission to suit unreasonably obstructed and unduly burdened, interstate commerce.

In the instant case, the facts are essentially different. The defendant owns and operates a line of railroad in this State, and has voluntarily placed agents here in the conduct of its business who are authorized to receive service of summons under our statute. It has become in all essential respects a domestic corporation, in so far as transacting business in this State is concerned. The right of action to the plaintiff was transitory, and it is not a question whether the laws of the State of Arkansas have any extraterritorial force.

In St. Louis & San Francisco Railway Company v. Brown, 62 Ark. 254, 35 S. W. 225, it was held that a nonresident may sue a domestic corporation in the courts of this State on a transitory cause of action arising’under a statute of another State, where such statute does not conflict with the public policy of this State; and the fact that there is a similar statute in this State is evidence that the statute in question is not against public policy.

In St. Louis, Iron Mountain & Southern Railway Company v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. 65, it was held that a section of the Civil Code of Louisiana giving to a minor child the right to recover for the wrongful killing of its parents creates a cause of action of a transitory nature which is similar to that created by our statute and may be enforced in this State. The plaintiff in that case was a minor residing in the State of Nebraska and brought suit to recover damages for the negligent killing of her father in the Stale of Louisiana. There, as here, the railroad sued had become a domestic corporation by operating a part of its line of railroad in this State and by becoming amenable to the laws of this State.

Again, in Kansas City Southern Railway Company v. Ingram, 80 Ark. 269, 97 S. W. 55, an action against a railroad company for killing stock in the Indian Territory was held to be transitory in nature and might be enforced wherever jurisdiction might be had of the defendant company.

In St. Louis-San Francisco Railroad Company v. Coy, 113 Ark. 265, 168 S. W. 1106, the plaintiff, as in the instant case, alleged in his complaint that he was a citizen and resident of the State of Missouri, and that he was negligently injured by the defendant on its switch-tracks in the State of Missouri. There, as here, the plaintiff brought suit in Crawford Circuit Court, and it was held that, the injury having occurred in the State of Missouri, the laws of that State govern as to the liability; but the remedy to recover damages on account of the injury must be pursued according to the laws of the State of Arkansas, where the suit was brought.

The same general rule was recognized and applied in the case of an action based on negligence in the shipment of freight in American Railway Express Company v. H. Rouw Company, 173 Ark. 810, 294 S. W. 401, where it was held that a transitory action is not required to be brought in a State where the contract was entered into or performed. The court further held that a foreign corporation, doing business in the State and having a designated agent on whom process may be served, may be sued in any county in the State by serving process on the agent outside the county in which the suit is brought.

So, too, in Texarkana & Fort Smith Railway Company v. Adcock, 149 Ark. 110, 231 S. W. 866, it was held that an action for personal injuries is transitory and may be brought in a State other than that in which it arose. i !

The distinction between the two classes of cases is clearly stated by the Supreme Court of Massachusetts in Reynolds v. M. K. & T. Ry. Co., 228 Mass. 584, 117 N. E. 913; affirmed by the United States Supreme Court in 255 U. S. 565, 41 S. Ct. 446, 65 L. Ed. 788, upon the authority of St. L. S. W. Ry. Co. v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486.

It is next insisted that the judgment must be affirmed because there is no bill of exceptions. This was not necessary. We have copied the judgment in our statement of facts; and by reference to it it will be seen that it recites all the facts upon which the court based its opinion. This court has uniformly held that no bill of exceptions is necessary where the judgment of the lower court, reciting the facts upon which it is based, shows error on its face. Hisey v. Sloan, 180 Ark. 797, 22 S. W. (2d) 1005, and cases cited.

It follows that the court erred in quashing the service of summons upon the defendants; and for that error; the judgment must he reversed, and the cause will be remanded with directions to overrule the motion to quash service of summons, and for further proceedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Cain v. State.
    Opinion delivered April 13, 1931

      J. II. O’Neal, Sheffield $ Goales, Winstead Johnson and S. S. Hargraves, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Hart, C. J.

G. O. Cain prosecutes this appeal to reverse a judgment of conviction against him for the crime of accessory before the fact for assault with intent to kill, charged to have been committed by advising and encouraging O. H. Lindsey to shoot W. N. Gregory with the intent to kill and murder him.

It is first insisted that the judgment should be reversed because the special term, at which Cain was indicted and. convicted, was not called in the manner prescribed by statute. The jurisdictional requirements in calling a special term are: that the person to be tried is confined in jail upon a criminal charge; that the holding of the special term shall not interfere with any other court to be held by the same judge; that the special term shall not be held within twenty days of a regular term of the c ourt; and that the order calling the term of court shall be made out and signed by the judge and entered on the records of the court. Crawford & Moses’ Digest, § 2218 et seq.; and Sease v. State, 155 Ark. 130, 244 S. W. 450.

The order of the circuit judge calling the special term in the instant case was filed with the clerk of the circuit court on the first day of October, 1930, and was entered of record by him. The special term was called for October 20, 1930, but it is insisted that the record does not contain an affirmative recital that notice was served on the prosecuting attorney ten days before the commencement of such special term as provided by % 2220 of the Digest. The statute does not require that the record should show that the notice was given to the prosecuting attorney, but the court will presume that it was given unless the contrary was shown. Dixon v. State, 29 Ark. 165; and Hill v. State, 100 Ark. 373, 140 S. W. 576.

As we have just seen, the order for the special term was filed with the clerk of the court in ample time to have had the notice required by statute served upon the prosecuting attorney. The main object of giving the notice is to enable the prosecuting attorney to be present at the special term of the court. The record in the present case shows that the prosecuting attorney signed the indictment which was returned against Cain at the special term and that he was present and conducted the trial for the State at said special term. Therefore, we hold that this assignment of error is not well taken.

It is next contended that the judgment should be reversed because the court erred in refusing the defendant a change of venue. Section 3087 of the Digest provides that any criminal cause pending in any circuit court may be removed to the circuit court of another county whenever it shall appear in the manner hereinafter prescribed that the minds of the inhabitants of the county in which the case is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Section 3088 provides that the order of removal shall be made upon the petition of the defendant, verified by affidavit, supported by the affidavits of two credible persons who are qualified electors,- actual inhabitants of the county, and not related to the defendant in any way.

It is only in special cases that this court will reverse the decision of the trial court as to change of venue. The reason is that the question whether the minds of the inhabitants are so prejudiced against -the defendant that a fair and impartial trial cannot be had in that county is of necessity one of opinion, and, as such, addresses itself to the sound discretion of the trial court who occupies a much better position than we do to judge of the credibility of the supporting affiants to the prejudice existing against the defendant which will prevent him receiving a fair trial. Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130.

There were three supporting affiants to the petition of the defendant for a change of venue. One of them stated that he did not know anything about the sentiment of the inhabitants of the county as to their prejudice against the defendant. He thought that he was signing an affidavit for the change of venue for a man who was jointly charged with the defendant. Another supporting affiant testified that he did not know anything about the prejudice against the defendant except in Augusta Township, and did not know anything about the sentiments for or against the defendant in the remainder of the Northern District of Woodruff County. If it be conceded that the remaining affiant was a credible person, a question which we do not decide, the court did not err in refusing to grant a change of venue because there were not two supporting affiants as required by statute.

The next assignment of error relates to the admission of evidence against the defendant. Counsel for the defendant do not specifically set out this testimony, but it relates to the declaration of O. H. Lindsey and another person who the evidence shows to have conspired with the defendant to perpetrate the crime for which the defendant was tried and convicted. It is well settled that any act or declaration made by one of two conspirators in furtherance of the conspiracy, although in the other’s absence, may be shown in eAddence against him, Lesieurs v. State, 170 Ark. 560, 280 S. W. 9, and cases cited. All of the testimony complained of by the defendant Avas concerning the acts and declarations of his co-conspirators in furtherance of their concerted plan to extort money from W. N. Gregory or to take his life.

It is next insisted that the court erred in giving instruction No. 2 at the request of the State, Avhich, it is contended, is in conflict Avith instruction No. 4, given at the request of the defendant. The two instructions read as follows:

“Instruction No. 2. You are instructed if you believe from the evidence in this case beyond a reasonable doubt that the defendant, G. O. Cain, and O. IT. Lindsey did combine and agree to obtain money from W. N. Gregory by force or intimidation, and that the said O. H. Lindsey, while acting in pursuance of said combine and agreement and while proceeding according to the common plan of the two, did assault the said W. N. Gregory with intent to kill him, at a time when the defendant, G. O. Cain, was not actually aiding and abetting the said O. H. Lindsey, you will find the defendant guilty as charged in the indictment. ’ ’
“Instruction No. 4. You are instructed that before the defendant, Cain, can be convicted you must believe from the evidence beyond a reasonable doubt that there was a specific definite agreement between the defendant, Cain, and O. II. Lindsey to commit the specific crime alleged in the indictment, that Cain advised or encouraged such act on the pail of Lindsey, in the Northern District of Woodruff Couuty, Arkansas, and that Lindsey proceeded in accordance with said specific common plan and attempted to kill said Gregory as alleged in the indictment. ’ ’

A comparison of the language used in the two instructions will show that they are in. harmony with each other and not conflicting in any sense of the word. Instruction No. 2 makes the guilt of the defendant depend upon his acting in pursuance of a combine and agueement with O. H. Lindsey for the latter to assault W. N. Gregory with intent to kill him. Instruction No. 4 tells the jury that there must have been a definite agreement between him and Lindsey to' commit the specific crime alleged in the indictment, and that Cain advised and encouraged Lindsey to proceed in compliance with the common plan when he attempted to kill Gregory. Hence we hold that this assignment of error was not well taken.

It is next contended that the court erred in its rulings with reg’ard to receiving the verdict. The jury returned a verdict finding the defendant guilty as charged in the indictment and fixed his punishment at five years in the penitentiary. Whereupon the court amended the verdict so that it reads as follows:

“We, the jury, find the defendant guilty of accessory before the fact of assault with intent to kill as charged in the indictment and fix his punishment at 5 years in the penitentiary.”

The court then read the verdict as modified to the jury; and each juror, after his name ivas called by the clerk, was asked if this ivas his verdict, and each one answered that it was. As said in Gilchrist v. State, 100 Ark. 330, 140 S. W. 260, to hold that this was reversible error would be to put form above substance. Each member of the jury answered that the amended verdict was his own. The indictment returned against the defendant was for the crime of accessory before the fact for assault with intent to kill, charged to have been committed in advising and encouraging O. II. Lindsey to kill W. N. Gregory. There can be no doubt by comparing the original verdict with the one amended by the court that the jury intended to find the defendant guilty of the crime of accessory before the fact of assault with intent to kill. Therefore, we hold this assignment of error is not well taken.

The most serious question in the case is whether or not there ivas sufficient corroboration of the testimony of O. H. Lindsey to warrant the jury in finding the defendant guilty; and, in determining this assignment of error, we have carefully considered the whole testimony, although we shall attempt to set out here only the substance of it. According to the testimony of W. N. Gregory, he lived in Augusta, Arkansas, and on Sunday night about eight o’clock on the 21st day of September, 1930, he was sitting- with members of his family on his front porch when O. H. Lindsey came up to the steps and told him that he wanted to talk to him privately. Gregory ivas well acquainted with Lindsey, and on the night before had refused to lend him $150. On the Sunday night in question, however, Gregory went out and took a seat in the car with Lindsey; and, after refusing to go to a private place with him, Lindsey demanded of Gregory $25,000. Gregory refused to let him have it. Lindsey asked Gregory if Ms young son hadn’t gone to the air school in Little Rock and received a telephone call from some one a few nights before. Gregory said that he did not know anything about this, bnt Lindsey said that it was true. Lindsey then told Gregory that he was going to have $25,000. Gregory refused to let Mm have it. Lindsey pulled out a pistol and threatened Gregory with it. Gregory tried to distract his attention by talking to him. Gregory did distract Lindsey’s attention, so that he turned the gun to one side a little, and Gregory then grabbed the cylinder in his hand and threw the pistol towards the front of the car. Lindsey shot one time, and Gregory pushed him out of the car and jumped on him and scuffled with him. Gregory’s wife and others came up and assisted him in arresting Lindsey who was then carried to jail. On the Friday before the assault, Gregory, who had just returned from Little Rock, drove out to the airport at Augusta and there watched his son fly his airplane. When Gregory started too leave the airport, some one stopped him and asked Mm if his name was Gregory. The man said he would like to have a talk with Gregory; that he knew something that would be of interest to him. The man asked Gregory if he had a boy in Little Rock in the air school, and, upon receiving an affirmative answer, said that he got a ’phone call, didn’t he. Gregory replied that he did. The man then said that he knew where the ’phone call came from. He said further: “It’s a blackmail. I know of a blackmail plot against you.” Gregory asked what it would cost Mm. The man replied: “Well, it is for $100,000, and I think $5,000 ought to be plenty.” Gregory asked him what about $2,500. The man replied, “No, that wouldn’t do, there might be a killing in it somehow,” and he had to have more money to get out of the way. The man then made an appointment with Gregory to meet him at the office of an attorney in Memphis a few days thereafter. The man was at the time unknown to Gregory, but he recognized the defendant as the man with whom he had the conversation.

O. H. Lindsey turned State’s evidence and related in detail how the defendant, Gf. O. Cain and Thomas McCloud and himself had formed the plan somewhere in Mississippi during the summer of 3929 to extort a large sum of money from W. N. Gregory. Pursuant to this plan, the parties conferred together at various times which resulted in them meeting at Searcy, Arkansas, where Lindsey had opened a barber shop and planning to obtain money from W. N. Gregory of Augusta. They first formed the plan of kidnapping the son of W. N. Gregory, who was a student at the airport in Little Eoek. Lindsey became intoxicated while they were in Little Eock, and this plan fell through. They next met in Woodruff County, Arkansas, and devised a plan whereby Lindsey was to make a demand upon Gregory at his home in Augusta for $25,000, and, if he refused, to kill him. Lindsey specifically stated that the defendant and others told him to go down there to Aiigusta and make Gregory sign the check or to kill him. Lindsey testified that it was a definite understanding between the defendant and himself and their associates that they were to kill Gregory if he did not pay as required.

The evidence of other witnesses tended to show that the defendant had registered at the Hotel Mayfair in Searcy, as testified to by Lindsey, and that he was in this State for several days in company with Lindsey before the assault was committed by Lindsey. After Lindsey was arrested, he made a confession, and the defendant was arrested in Memphis.

After they were on the train in Arkansas, the deputy sheriff tojd Cain about the newspaper account of the assault. Cain asked the deputy sheriff if he had one of the papers on the train and remarked that Lindsey had squealed. The deputy sheriff said that Lindsey had told the whole thing. Cain then said, “You didn’t tell me that in Memphis. ’ ’

Lindsey told in detail of the circumstances leading up to the assaxdt, and the jury was warranted in finding that it was a part of their plan to extort a large sum of money from W. N. Gregory at Augusta., Arkansas, or to kill him upon his refusal to pay them. There was a definite and concerted plan participated in hy Lindsey, Cain, and Thomas McCloud to commit the crime in question. We think the fact that Lindsey and the defendant were in company with each other for several days before the commission of the crime, coupled with the admission of the defendant to the deputy sheriff that Lindsey had squealed, and the further fact that Gregory testified that a few days before the assault was made on him by Lindsey a man whom he identified as the defendant approached him at the airport in Augusta and told him that there was a plan on foot to blackmail him and thereby secure from him a large sum of money, was sufficient corroboration of the testimony of Lindsey as required by our- statute. Middleton v. State, 162 Ark. 530, 258 S. W. 995.

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


author: Smith, J.

text:
    Moss v. State.
    Opinion delivered April 13, 1931.

      G. T. Bloodworth and O. T. Ward, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehajfy, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment of the Clay Circuit Court, Eastern District, sentencing appellant to a term in the State penitentiary for selling* intoxicating liquor. A reversal is asked upon two grounds, first, the insufficiency of the evidence, and, second, the admission of certain testimony alleged to be incompetent.

The first assignment of error is disposed of when it is said-that Richard Benson, a barber in Rector, testified that on ■Christmas day, a year before the trial, which occurred at the January, 1931, term of the court, he bought from the defendant, at the defendant’s home in Rector, a half-pint of whiskey, for which he paid the defendant 75 cents.

The testimony the admission of which is assigned as error is to the following effect. Gr. N. Deniston, the marshal of the city of Rector, testified that he had searched the home of defendant under the authority of search warrants, and on one occasion found a pint of liquor in a tea-kettle, and on another some empty bottles which had once contained beer.

It is insisted that the admission of this testimony is error, for the reason that it was not shown -when the searches were made, and that they may, therefore, have been made at a time so remote from the alleged sale as to have no bearing* upon that transaction. The defendant admitted that he had no occupation, and that he had only lived in Rector for about two years. The alleged sale was made December 25, 1929, and the trial was had in January, 1931, so that the searches, whenever made, were made within less than a year of the date of the sale.

The prosecuting* attorney should have interrogated the marshal as to the dates of the searches, and the court should not have admitted testimony showing what was found as, a result of the searches unless it had been shown that the searches were so related to the sale in point of time as to have some probative bearing upon the question as to- whether the defendant had liquor for sale at about the time of the alleged sale. But, while this showing* was not directly made, as it should have been, it was indirectly made in the testimony above recited to the effect that appellant had lived in Rector for only about two years, and lie was tried in January, 1931, for an offense alleged to have been committed on December 25, 1929, and a search of appellant’s house at any time prior to the date of the alleged sale would be within a 3rear thereof, and we are unable to sa37 that it is so remote in point of time as to have no probative value.- We are of the opinion, therefore, that no prejudicial error was committed in admitting this testimony, and, as no other error is assigned, the judgment must be affirmed, and it is so ordered.


text:
    Standard Oil Company of Louisiana v. Dumas.
    Opinion delivered April 13, 1931.

      T. M. 'Milling and Gamghcm, Sifford, Godwin <$> Gaughan, for appellant.

      Mcjsf alley $ Sellers, for appellee.
   Smith, J.

On November 17, 1928, a suit was filed in the Union Circuit Court by the next friend of Medford Dumas, an infant six years of age, to recover damages to compensate a personal injuiy which he had sustained. The cause was removed to the Federal District Court, where a demurrer to the complaint was heard and sustained, and the following order entered:

“The demurrer of the defendant to the complaint of the plaintiff in the above entitled cause having- been argued by counsel and submitted, the court, being well and sufficiently advised in the premises, doth sustain said demurrer.
“Whereupon plaintiffs, by leave of court, enter a voluntary nonsuit herein without prejudice, and upon the entry of said nonsuit it is by the court ordered that said cause be and the same is hereby dismissed without prejudice, and that the defendant have and recover of and from the plaintiff all costs by the defendant in this behalf laid out and expended, for which execution may issue.”

Thereafter, and within one year from the dismissal of the first suit, the plaintiff brought this action in the Union Circuit Court, based upon the same injury but containing allegations of negligence somewhat amplified, wherein the prayer for damages was reduced to $3,000. To this last suit the defendant therein interposed a plea of res judicata, based upon the order of the court set out above. This plea was overruled, and there was a trial before a jury, which resulted in a verdict and judgment for the plaintiff, from which is this appeal. For the reversal of this judgment it is insisted that the plea of res judicata should have been sustained, and that a demurrer to the complaint should also have been sustained, and that the testimony is insufficient to support the verdict.

We think the plea of res judicata was properly overruled. It is true the demurrer to the complaint was sustained by the learned judge of the Federal District Court, but it is true also that the plaintiff did not stand upon the sufficiency of his complaint. On the contrary, he obtained leave of the court to enter a voluntary non-suit without prejudice, and the cause was thereupon dismissed without prejudice to another action. In other words, while the court did find that the demurrer should be sustained, the court permitted a voluntary nonsuit to be taken, and the judgment of the court was that the cause be dismissed because the nonsuit had been taken, and that without prejudice.

At § 1204 of the chapter on Judgments, 34 C. J. 786, subtitle “Voluntary Dismissal or Discontinuance,” it is said: “A voluntary discontinuance of a cause by plaintiff, or the dismissal of the action on his motion, does not as a rule amount to a judgment on the merits, and therefore will not bar a new action on the same subject-matter, especially if expressed to be without prejudice; and the same rule applies to the voluntary dismissal of a cross-bill, petition in intervention, or equitable defense. But an entry on the record that the debt has been paid and the suit ended is a bar to another action on the same debt.

“Time of dismissal. Even after the sustaining of_a demurrer to the declaration or complaint, plaintiff may voluntarily dismiss his action, and, if he does so, the dismissal will not bar a new suit. ’ ’

The allegations of the complaint are to the following effect. On October 7, 1927, the defendant, for the purpose of making and repairing tools and equipment used in the production of oil and gas, maintained and operated a machine and blacksmith repair shop at Kenoya, Union County, Arkansas. The shop was housed in a one-story frame structure, with corrugated metal sidings, and the equipment thereof consisted in part of forges, lathes, motors, drilling devices, and other machinery for repairing’ oil field equipment. In the front of said building were three large doors, which opened upon an open concrete floor or platform, which was on the same level or grade as the land surrounding it and was about twenty feet square. The limits or edges of the concrete floor or platform were unmarked, and there was nothing to indicate to pedestrians where the boundaries of the traveled way ceased and those of defendant’s platform begun.

The plaintiff and his mother and next friend lived directly opposite the shop and about 120 feet distant therefrom, and the intervening space was level and open to and used by the public generally as a driveway and passageway. On the west side of said machine shop and said concrete floor, and extending from the west wall and edge thereof was also an open passageway, used by the defendant and the public generally as a driveway.

There was no railing, bar or other structure about said open concrete floor to deter or prevent any one from passing* along said traveled way.

The operation of the lathes, forges, drills, and revolving* machinery, with their whirring noises and flying sparks was attractive to small children and lured them to the concrete floor for the purpose of playing with the machinery and watching the revolving* machinery and the flying* sparks within .said shop, and was especially attractive and inviting to the plaintiff, Medford Dumas, all of which was known to the defendant.

Notwithstanding defendant knew of the attractiveness of the concrete floor to small children, it left a solid steel shaft, about 4% inches in diameter and about 6 feet long*, in a partially uprig’ht position, with one end resting upon the concrete floor and the other end leaning against the front wall of the shop. Because of the length of said shaft and the small' diameter thereof and the leaning position in which it was placed, it required but little pressure to cause it to fall, which fact was, or should have been, known to the defendant, and when the infant, Medford Dumas, pressed against the shaft it fell upon and severely injured him.

The testimony sufficiently sustains the allegations of the complaint to .support the finding that the defendant was negligent in the particulars alleged, if the allegations charged actionable negligence, and this is the most serious question in the case.

In sustaining the demurrer to the complaint, which contained the allegations set out above but somewhat less amplified, the learned judge of the Federal District Court filed an able opinion in which he gave his reasons for that action, and among the cases cited by him as requiring that holding was the case of United Zinc & Chemical Co. v. V. Britt, 258 U. S. 268, 66 L. Ed. 615, 42 Sup. Ct. Rep. 299, 36 A. L. R. 28.

The opinion in that case was written by Mr. Justice Holmes, but there was a dissenting opinion written by Mr. Justice Clarice, in which Chief Justice Taft and Mr. Justice Day concurred, and there is a most exhaustive annotation of the case, extending from pages 34 to page 294 in 36 A. L. R. The division in the authorities is pointed out by Justice Clarke in his dissenting opinion, and is accentuated in the countless cases cited in the annotator’s note, supra.

The learned district judge, was, of course, bound by the majority opinion in a manner that we are not, and we do not follow the majority opinion, as he was required to do, for the reason that the minority opinion more nearly accords with the decisions of this court on the subject.

In the case of Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S. W. 12, the Van Britt case supra was cited as being conclusive of the question there raised. We there said: “In the case of United Zinc & Chemical Co. v. Britt, 258 U. S. 266, the court applied the rule £as to attractive nuisances’ in such manner as to withdraw its protection from children who were not attracted upon the land of another by the nuisance itself,” and the reasoning of our Porter case shows our unwillingness to follow that rule. We there adhered to the rule announced in our earlier cases, that of Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 301, being one of them. In this last cited case, at page 91 it is said:

“The doctrine (attractive nuisance) was recognized and approved by this court in Brinkley Car Co. v. Cooper, 60 Ark. 545, 31 S. W. 154, where Judge Riddick, speaking for the court, said:

“ 'The owner of land, is not required to provide against remote and improbable injuries to children trespassing thereon, but he is liable for injuries to children trespassing upon his private grounds when it is known to him that they are accustomed to go upon it, and that from the particular nature and exposed and open condition of something thereon, which is attractive to children, he ought reasonably to anticipate such injury to children as that which actually occurs.’ See same case in 70 Ark. 235, 67 S. W. 752. (Brinkley Car Co. v. Cooper.) Again in quite a recent case, St. Louis-San Francisco Ry. Co. v. Williams, 98 Ark. 72, 135 S. W. 804, 33 L. R. A. (N. S.) 94, the Chief Justice, speaking for the court, after stating the general rule as to trespassers, says: ‘What is known as the doctrine of the “turntable eases” forms an exception to the rule.’ And then he succinctly state the rule of the ‘turntable cases’ as follows: ‘Where am owner permits to remain unguarded on his premises something dangerous which is attractive to children and from which an injury may reasonably be anticipated,” he may be liable; quoting from Brinkley Car Co. v. Cooper, as set out above. Under the doctrine of Lynch v. Nordin, or the doctrine of the ‘turntable cases,’ it was for the jury to determine whether the machinery was dangerous and known to be such because it was attractive to and known to be frequented by children, and whether the appellant was guilty of negligence in leaving the machinery uncovered and unprotected. ‘Whether or not premises are sufficiently attractive to entice children into danger, and to suggest to the defendant the probability of accident, is a matter to be determined by the jury.’ 29 Cyc. 636; Brinkley Car Co. v. Cooper, supra.”

Under the testimony sustaining the allegations of the complaint, the jiiry could have found that the injured child was too young to understand and avoid the danger; that the defendant had reason to anticipate the presence of the child because of the attractiveness of the place to children; that there was the likelihood of an accident from the leaning and insecure position of the shaft; and that a reasonably prudent person would not have so placed the shaft under the circumstances.

These issues of fact were submitted to the jury under instructions which are not complained of except that it is insisted that, under the undisputed evidence, there was no question for the jury, We think, however, that a case was made for the jury, and, as no error appears, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    O’Berg v. Bank of Sulphur Springs.
    Opinion delivered April 13, 1931.

      Rice <$> Dickson, for appellant.

      Vol T. Lindsey, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of Benton County by appellee against W. T. Armstrong and Nina Armstrong to foreclose two past-due mortgages upon a certain forty-acre tract of land in said county, one for $1,100 of date February 14, 1929, and one for $200 of date March 19, 1929, executed by the Armstrongs to it, in which appellants were made parties defendant because they were asserting a lien thereon under a mortgage of date July 31, 1928, executed by the Armstrongs to them to secure the payment of the purchase money for said forty-acre tract. It was alleged that appellants released their mortgage lien for the purchase money by the execution of a release deed to the Armstrongs on the 12th day of February, 1929.

Appellants filed an answer and cross-complaint denying that they had released the mortgage lien for the purchase money due them, and alleging that the release deed referred to in appéllee’s complaint was stolen from them by W. T. Armstrong and placed on record without their authority.

The cause was submitted to the court upon the pleadings and testimony adduced by the parties, resulting in a finding that appellee’s mortgage liens were superior to appellant’s mortgage lien on the said forty-acre tract, and a decree of foreclosure and order of sale to satisfy same, from which is this appeal.

The facts reflected by the record material to the issue involved on this appeal are as follows:

On July 31, 1928, appellant sold a forty-acre farm near Sulphur Springs in Benton County, Arkansas, to W. T. Armstrong and his wife Nina M. Armstrong, for $2,350 and took a mortgage thereon to secure the payment of the purchase money. On February 12, 1929, W. T. Armstrong prepared a mortgage to appellants' on the 400-acre tract of land he owned in Oklahoma to secure said indebtedness and a release deed from appellants to him releasing their mortgage on the Benton County forty in Arkansas and proceeded to the home of appellants near Chelsea in Oklahoma for the purpose of exchanging the mortgage on the Oklahoma land for the release of the mortgage on the Arkansas land. Appellants agreed to the proposal if W. T. Armstrong would furnish an abstract showing good title to the Oklahoma land and would have the mortgage on the Oklahoma land recorded and mailed to them. In order to accomplish the purposes without delay, appellants went to Chelsea with the Armstrongs and executed a release deed to the Arkansas land. They then returned to appellants’ home where appellants handed W. T. Armstrong a long envelope containing the mortgage on the Arkansas land and the release deed they had executed for comparison of the land description to see that the release deed correctly described same. In making the inspection, Armstrong spread the original mortgage and the release deed out on the table with his other papers, and, when he returned the envelope, failed to inclose therein the original mortgage and release deed. Appellants put the envelope away thinking the original mortgage and release deed were in same for safe keeping until W. T. Armstrong should record and return the mortgage and abstract on the Oklahoma land. In looking for some other papers five or six days thereafter, appellants discovered that the original mortgage and release deed on the Arkansas land was not in the envelope. They wrote to the clerk of Benton County and ascertained that Armstrong had recorded the release deed to the Arkansas land, which he had stolen from them, and had mortgaged the land to appellee for $1,100. The mortgage to appellee was executed and filed on February 14, 1929. Appellants then went to see Armstrong, and he promised to get the mortgage on the Oklahoma land and send to them at an early date. On March 19, thereafter, the Armstrongs borrowed $200 additional from appellee and gave it a second mortgage on the Arkansas land to secure the payment of same. W. T. Armstrong never sent the mortgage and abstract to the Oklahoma property to appellants.

According to the facts thus stated, appellants voluntarily delivered the original mortgage to the land to W. T. Armstrong for comparison of the description contained therein. When the envelope containing them was handed back, appellants neglected to examine the contents thereof. Had they examined the contents, they would have discovered that the original mortgage and’ release deed had been retained or stolen by Armstrong. Their failure to make the examination placed it in the power of Armstrong to have the release deed recorded and sell or mortgage same to a third party as unincumbered property.

This court is committed to the doctrine that “where two parties to a fraudulent transaction are equally innocent, and the loss must fall upon one, it should fall upon the one who, in law, most facilitated the fraud. Cureton v. Farmers’ State Bank, 147 Ark. 312, 227 S. W. 423; Mo. Pac. Ry. Co. v. M. M. Cohn Co., 164 Ark. 335, 261 S. W. 895. It is said by Mr. Jones in his work upon Mortgages, 7th Ed., vol. 2, p. 568, p. 967, that: “If the mortgagee is in any way responsible for the mortgage being released of record or if the release of record is produced through the neglect, incaution, credulity or misplaced confidence of the mortgagee, a different rule will govern in determining the equities between the mortgagee and one who" has innocently dealt with the property in the belief that the mortgage is satisfied. In such case the mortgagee is estopped in equity from asserting the priority of his mortgage. Such is the case when the mortgagee has permitted the mortgagor to have the custody of the mortgage whereby the latter was enabled to produce it for cancellation on the record.”

Appellants, by an act of negligence on their part, placed it within the power of Armstrong to dispose of the property to a third party under the belief that the mortgage was satisfied. They did this without compulsion, and their neglect in obtaining* a return of the release deed brings the case clearly within the rule announced above.

No error appearing, the decree is affirmed.


author:
Humphreys, J.
      Hart, C. J.,

text:
    Katzenberg v. Katzenberg.
    Opinion delivered April 13, 1931.

      Partain & Agee and G-. L. Grant, for appellant.

      Fred S. Armstrong, for appellee.
   Humphreys, J.

This appeal involves the single question of whether a married woman may sue her husband for an injury received through his negligence. The complaint alleges that appellant was riding in an automobile being’ driven bjr appellee, her husband, and, through negligent- operation thereof, he drove it off the highway, turned it over, and pinned appellant underneath it, thereby seriously and permanently injuring and damaging her.

Appellee filed a demurrer to the complaint upon the ground that appellant was without capacity to sue and that the facts stated in the complaint failed to constitute a cause of action.

The demurrer was sustained, and the complaint dismissed over appellant’s objection and exception.

The statute relied upon by appellant as a basis for her action is act 159 of the Acts of the General Assembly of 1915, entitled 1 ‘ An act to remove the disability of married women in the State of Arkansas,” as amended by § 5577 of Crawford & Moses’ Digest, which reads as follows:

“ Every married woman and every woman who may in the future become married shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State as though she were a feme sole; provided, it is expressly declared to be the intention of this act to remove all statutory liabilities of married women as well as common-law disabilities, sncb as disability to act as executrix or as administratrix as provided by ^ 6 of Kirby’s Digest, and all other statutory disabilities.”

This court ruled in the case of Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, following the construction of the Supreme Courts of Connecticut and Oklahoma of statutes not so broad and comprehensive as our statute of 1915, that the purpose and intent of act 159 of the Acts of the General Assembly of 1915 was to complete the work of emancipation of married women so that they might enjoy all the rights in law and equity accorded a feme sole, and that in respect to those rights they may even sue their husbands for torts. The Fitzpatrick case was cited with approval by the North Carolina and Wisconsin Supreme Courts in construing their respective statutes removing statutory and common-law restrictions imposed upon married women. Roberts, v. Roberts, 185 N. C. 566, 118 S. E. 9, 29 A. L. R. 1479; Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 48 A. L. R. 276. Appellee argues that in the Fitzpatrick case the rule applies to willful torts only, but no such distinction appears in the decision or the statute construed. If an inference could be drawn that, under the statute of 1915 and the rule announced in the Fitzpatrick case, supra, a married woman could not sue her husband for damages resulting from involuntary acts of negligence, certainly it cannot be said any statutory or common-law restrictions prevent her from bringing such a suit after the amendatory act of 1919 emancipating a married woman from all disabilities was passed. Under both the act of 1915 and 1919, married women became wholly independent of the doctrine v of marital unity. They can now enter into marriage contracts without fear of their property or personal rights being lawfully abridged by an antagonistic public policy.

On account of the error indicated, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Hart, C. J.,

(dissenting). Judge Butler and I think that basing the majority opinion on Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, is an apt illustration of the adage that reasoning- by analogy is oftentimes dangerous. By the common-law the husband and wife were deemed to be one person, and no suit at law of any character could be maintained by one against the other. Countz v. Markling, 30 Ark. 17; and Peters v. Peters, 156 Cal. 32, 103 Pac. 219; 23 L. R. A. (N. S.) 699.

The husband, however, was liable in equity in certain cases to the wife where he was attempting to defraud her in her property right; and he was also liable to punishment criminally for a felonious assault upon her.

In Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, the question presented was as to the liability of the husband for a felonious assault upon his wife, resulting in her death. The husband was held liable on the ground that our Married Woman’s Act gave her the right in a civil action to damages, since-she already had the right to have her husband punished criminally. In other words, at the time the statute was enacted, it was illegal for a husband to assault his wife; and the Married Woman’s Act gave her a remedy to sue at law where before her only remedy was to have her husband arrested and punished criminally. His act was just as illegal before as after the passage of the act; and the act gave her a civil remecty where she had none before.

We do not think the act, as construed in that case, is broad enough to allow the wife the right to maintain an action against the husband for negligence merely. As said in Newton v. Weber, 194 N. Y. Supp. 113, the maintenance of an action of this character, unless the sole purpose be a raid upon an insurance company, would not add to conjugal happiness and unison, which it is the policy of the law to further and to promote. That this view is in accord with the weight of authority may be seen from reference to 6 A. L. R. 1038; 29 A. L. R. at 1492, and 33 A. L. R. at 1406.

The common-law incidents of marriage are swept away by express statutes only; and the common-law unity of husband and wife still exists in this State except in so far as expressly changed by statute. Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198; and Parrish v. Parrish, 151 Ark. 161, 235 S. W. 792. Broad as our statute is, as already construed, we do not think that it was the intention of the Legislature, as expressed in the Married Woman’s Act, to give her the right to sue her husband with whom she is living in lawful wedlock for a negligent tort committed by him, such as the one under consideration in this case. Therefore, we respectfully dissent.


author: Kirby, J.,

text:
    Miller v. Moncrief.
    Opinion delivered April 13, 1931.

      J. M. Brice, for appellant.

      G. W. Botts, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in refusing to retransfer the cause to the- chancery court and in the refusal to give certain instructions requested.

The undisputed testimony shows that appellee had refused to surrender the $1,000 note that was claimed to be a part of the consideration, and also that she had brought suit thereon and recovered judgment therefor in a court of competent jurisdiction against appellant from which no appeal was taken, and that, as a defense in that suit, appellant here alleged the note was paid or satisfied by this conveyance. The court properly held this matter res ptdicata upon the plea setting it up, and declined to submit the question to the jury.

Of course, appellant could not recover damages for breach of or refusal to perform the contract for personal service, such damages being altogether remote and speculative, as well as any damage for breach of partnership agreement alleged to be a part of the unexpressed consideration for the deed, and no error was committed in the court’s refusal to give the instruction requested on that point. 'Certainly appellant could not collect damages for value of improvements put upon the lands conveyed by the deed long after the conveyance was made and appellee had refused and declined to carry out the partnership agreement, and it is not even claimed that such improvements or the value thereof was any part of the unexpressed consideration for the deed or conveyance of the lands. The improvements were made upon the lands long after appellant had conveyed them and without any agreement for repayment of their value to him and any right on his part to expect such repayment under the circumstances of this case.

Since there were no questions for determination of exclusively equitable cognizance, no error was committed in transferring- the cause to the circuit court for trial upon the questions of fact by a jury. Upon the whole record, the majority is of opinion that no errors were committed, and that the judgment must be affirmed. It is so ordered.


text:
    Little Rock Branch of Federal Reserve Bank of St. Louis v. Taylor.
    Opinion delivered April 13, 1931.

      James G. McConkey and Bose, Hemingway, Cantrell id Loughborough, for appellant.

      Robinson, House S Moses, for appellee.
   Kirby, J.,

(after stating the facts). It is well-established law that a bank receiving a draft for collection merely is the agent of the remitter, drawer or forwarding bank, and takes no title to the paper or the proceeds when collected, but holds same in trust until remitted. Darragh Company v. Goodman, 124 Ark. 532, 187 S. W. 673.

It is also true that no lack of diligence was shown by appellant bank in handling the items by sending the checks for collection direct to the bank on which they were drawn, nor in said drawee bank in charging the amounts of said checks against the account of the drawer thereof. Rainwater v. Federal Reserve Bank, 172 Ark. 631, 290 S. W. 69; Lister v. First National Bank of Van Buren, 181 Ark. 140, 25 S. W. (2d) 26.

The forwarding of the amount of the checks collected by the Bank of Bauxite to the appellant, the sending bank, of its check on its correspondent bank in Little Rock, the American Exchange Trust Company, did not constitute a payment of the money collected, since the correspondent bank had closed its doors before presentation of the checks in due time as did the collecting bank, both of which were insolvent and not able to re-open at the end of the five days of suspension allowed by law and were taken charge .of by the Bank Commissioner. It is insisted therefore that under the statute, act 107 of 1927, p. 298, that, since the Bank of Bauxite, on which the checks were drawn, had made the collection by charging the amount of said checks against the account of its customer or depositor, the drawer, and had forwarded its check or draft therefor against its correspondent bank at Little Bock, and had returned and surrendered the paid checks to the drawer thereof prior to the Bank Commissioner’s taking charge, he could not reverse the entries upon the books of the bank as to the collections made and return the checks to the bank sending them for collection and that, therefore, the transaction was completed, and the collecting bank’s claim for priority of payment must be sustained, since it cannot be extinguished by the reversal of the entries on the bank’s books and the return by the collecting bank of the checks.

The statute provides: “A prior creditor shall be: * * * (7) The owner of a remittance of the said bank, the proceeds of a collection made by said bank by honoring a cheek or other order upon itself, or by a charge against the account of its depositor, although the said collection has not had a distinctive identity in the hands of said bank, has not actually increased its cash assets, and has resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor, in instances where the said remittance has been presented with due diligence for payment to said bank or its drawee and is not paid, and where the instrument collected cannot be returned by the Commissioner to the person who had transmitted the same to said bank for collection, the said instrument having been surrendered by said bank upon its collection in such manner prior to the Commissioner taking charge, it being hereby made the duty of said Commissioner to reverse the entries upon the books of said bank as to all collections made in such manner in all instances where the said unpaid remittance has been so presented with due diligence and where the said instrument remains in said bank unsurrendered, by which said reversal of entries the said instrument shall be deemed to be from its inception unpaid, and thereupon the said Commissioner shall return the said instrument to the person who had transmitted the same to said bank, which return shall be in extinguishment to the extent thereof of the said remittance. * * *” Act 107 of 3927.

It is true that this statute provides that all creditors of a hank of which the commissioner has taken charge are classifiable, etc., and where the instrument collected cannot be returned by the commissioner to the person who transmitted the same for collection, the said instrument having been surrendered by said bank upon its collection in said manner “prior to the Commissioner taking charge,” etc., but the majority is of opinion that the act of insolvency by the bank in suspension of payment of checks on demand for the alleged protection of the stockholders and creditors without reopening the bank at the end of the time of suspension and the Bank Commissioner’s taking actual charge thereof is sufficient within the meaning of the act, and his authority relates back and begins from the time of the suspension of payment or act of insolvency, so far as the right to make reversal of entries upon the books as to the showing of collections made against depositors during such suspension, and certainly that, since the bank should not have surrendered these checks after charging off the amount thereof against the account of its depositor during the period of suspension of payment of checks, its having done so could not deprive the Bank Commissioner of the right to reverse the entries on the bank’s books about the collections to show the checks uncollected. The checks having been wrongfully surrendered and returned to the drawer without any intent, it is true, of in any way conducing to a preference of the claim for payment or constituting it a priority, it could not have such effect. The Bank Commissioner therefore was authorized to reverse the book entries showing the payment of this claim, and, the checks having been wrongfully returned to the drawer, no payment thereof was constituted, and the drawer still remains liable therefor.

The decree is affirmed accordingly.

Mr. Justice Smith dissents.


author: Mehaffy, J.

text:
    King v. Goode.
    Opinion delivered April 13, 1931.

      W. P. Smith, George'T. Humphries and Cole S Poindexter, for appellant.

      W. A. Jaclcson, W. E. Beloate, Jr., and W. E. Beloate, for appellee.
   Mehaffy, J.

Appellee brought this suit in the circuit court of Sharp County against the appellant for a breach of marriage contract.

The appellant answered denying that he had ever promised to marry appellee, and denied all the material allegations in her complaint.

The evidence is voluminous, and it is unnecessary to set it out here, but we have carefully considered the entire evidence tending to show promise of marriage and have reached the conclusion that there was sufficient evidence to submit this question to the jury. The evidence is not very definite, and most of it relates to the conduct of appellant with reference to his management of appellee’s business and affairs as attorney, but she testifies that he promised to marry her, naming the time and place where the promise was made.

Numerous letters written by the parties were introduced in evidence, and none of them, either appellant’s or appellee’s, indicated any promise of marriage at all; still the credibility of witnesses and weight to be given to testimony is a question for the jury, and we think there was substantial evidence to submit this question to the jury.

Appellee testified that she was forty years old, the mother of four children living, the oldest one being nearly twenty-one years old; that she employed D. L. King, the appellant, after her husband’s death, to look after the interests of the estate and defend and save the home and to represent her and her children in certain litigation. She testified that there was no date set for. the marriage, but that it was to be when appellant got all her matters straightened out, property in shape, etc.

Her testimony as to the appellant’s breach of the contract is also indefinite. When asked why she did not marry him, she said that he came down there some time after the promise and commenced demanding payment for the money he had put up for them, and before that he said nothing to her about it, and she had been making repairs on the place and paying taxes, and when she told him she did not have the money he said he would take the land. She was then asked if he made known to her that he would not marry her, and she said, “Yes, sir; he made it very plain to me that he no longer loved me, and that he would no longer look after my interests.”

When appellee was asked when Senator King refused to marry her, she said: “When he came down there and said he was going to take our farm and everything we had from us and put us out. ’ ’ She was then asked, ‘ Did you broach the subject of marriage at that time to him?” She answered: “No, sir; indeed not, after he had told me what he was going to do. ’ ’ She was then asked; “ You did not want him to marry you?” and she answered, “Not if he did not want me; his actions and statements showed clearly that he did not intend to marry me.” She further stated that at the time she married Mr. Goode, Senator King had not told her that he was not going to marry her. She. said that he said he was going to take the farm and all that they had and put them out, but that she did not discuss marriage with him.

It therefore appears from appellee’s own evidence that the appellant never did refuse to marry her; that they never discussed the subject; but she claims that, because he wanted to take her property after having paid a judgment of $7,000, that was a breach of his promise of marriage. However, if his conduct and what he said about the property could be treated as a refusal to marry, her evidence and conduct shows that she acquiesced in it. She stated that she did not want to marry him if he did want to many her. She never requested him to carry out his promise to marry her, never discussed it with him, and she further testified that at the time she married Mr. Goode appellant had never told her he was not going to marry her. She also testified that a short time after this she married Mr. Goode, although the things that she said were to be done before she and appellant were to be married had not been done, and she had never requested appellant to marry her and never discussed the marriage with him.

She married Mr. Goode on the 12th of August, not a great while after she says the appellant told her he was going to take her property. She testified that the appellant came to see her two days before she married Mr. Goode and furnished her money to buy some land. She told him she had to spend what money she had on account of sickness, and that she was borrowing it from her mother, and she says he told her there was no use to do that, and that he had the money ready for her. Now this, according’ to her own testimony, was only two days before she married Mr. Goode, and the relations of appellee and appellant were such that he was still visiting her and furnishing her money, and he had never refused to marry her.

Evidently when he wanted her to pay back what he had advanced, she concluded that she did not want to marry him.

An agreement to marry, like any otlier contract or agreement, may be dissolved or rescinded by the mutual consent of the parties; and where one party seeks to repudiate the promise, the consent of the other party may be inferred from circumstances indicating an evident intention to abandon the contract. 2 Black on Rescission & Cancellation 937; 9 C. J. 331; Dean v. Skiff, 128 Mass. 174; Kellett, v. Robie, 99 Wis. 303, 74 N. W. 781; Mabin v. Webster, 129 Ind. 430, 28 N. E. 863; Shellenberger v. Blake, 67 Ind. 75.

We do not deem it necessary to set out or call attention to the evidence, a great portion of which was with reference to property and with reference to the conduct of appellant in the management of appellee’s property. We have set out the substance of all the evidence tending to show a breach of the promise by appellant and appellee’s acquiescence or agreement to the rescission.

We have reached the conclusion that, if there was a contract made and violated by appellant, the evidence conclusively shows that it was rescinded by mutual agreement.

The judgment will therefore be reversed, and, since it appears that the ease was fully developed, it will be dismissed.


author: Butler, J.,

text:
    Gage v. Chastain.
    Opinion delivered April 13, 1931.

      Evans & Evans and T. A. Pettigrew, for appellant.

      D. L. Ford and Ilardin S Barton, for appellee.
   Butler, J.,

(after stating the facts). It is admitted that the deed executed to Colvard was without consideration and merefy for the purpose of placing the legal title to the property in B. A. Gage, it being her contention that the conveyance to her was to cany into effect a pre-existing agreement by which her husband was to convey the property to her, the consideration being an advance made by her to him of $1,450 and the interest her son, E. Gage, had therein, which had been previously given by him to her. The appellee contends that the deeds vesting legal title in B. A. Gage were colorable and executed with the intent to defraud him and prevent the collection of his debt.

After hearing the testimony in the case the chancellor-found in effect that the transaction was such as alleged by the appellee, and the question now is, was his finding and judgment against the preponderance of the testimony? The answer to that question renders it unnecessary to discuss other questions raised as these become unimportant. 5

'Certainly, it is true that an embarrassed debtor may convey his property to one of his creditors in satisfaction of a debt, even though the effect of the conveyance would defeat the remainder of his creditors in the collection of their debt. The case of Baker v. Gowers, 180 Ark. 1110, 25 S. W. (2d) 438, and tlie cases therein cited are conclusive on this question, hut, in order for the conveyance to be upheld, it must be made in good faith and for a valid and subsisting indebtedness; and, where the value of the property is not out of proportion to the debt, such transaction is not fraudulent. It is also the rule, however, that conveyances made to near relatives of an embarrassed debtor are looked on with suspicion and scrutinized with care, and when they are voluntary they are ■prima facie fraudulent and become conclusive as to existing creditors when the embarrassment of the debtor proceeds to that point where he is insolvent. Smith v. Wheat, ante p. 149, and cases therein cited.

Applying these principles to the testimony in the case at bar, we have reached the conclusion that the decision of the trial court holding that the conveyance was colorable and in fraud of the rights of the appellee was not against the preponderance of, but is sustained by, the evidence. Appellee and her husband and son all testified that the appellee advanced $1,450 as a loan to R. Gage, her husband. This alleged transaction, however, occurred in 1923, if at all, and none of the witnesses testified with any degree of particularity as to the source from which she derived the money. The general statement only is made that she earned it selling vegetables, milk and butter, and that she liad some property in Texas. How much property or the nature of if is not shown, nor what disposition, if any, was made of it. Appellee’s son testified that appellee kept her money in the Bank of Ozark, but no canceled checks were introduced in evidence nor any contemporaneous memoranda tending to corroborate the testimony of the witnesses. The evidence is to the effect that at the time of the construction of the building on the lot in question the means of R. Gage were ample for that purpose. He had paid $1,550 for the lot, and in his application for the last loan he secured he gave the value of the property as improved at $6,500. Therefore he expended not more than $5,000 on the property. He paid $2,200 for liis home, and he had in cash -when he purchased the lot the sum of $2,000, and from the proceeds of the loan and the sale of a farm he obtained $7,500 — in all $9,500. The total value of the business property as improved and his home was $8,700. There was therefore no necessity for the alleged loan from the appellee to her husband. Appellee also claimed that her son, E. Gage, had an interest in the property, variously estimated at from twelve to sixteen hundred dollars, which he gave her by letter written from California, in 1924. E. Gage testified that $500 of this was for work done by him on the building and $75 in cash which he had paid for equipment in the garage, but in the letter relied on by the appellee, there was no specific statement as to any interest he had or claimed in the property itself. He and his father had been in the garage business located in the building which necessarily needed equipment, and it is likely such equipment was purchased by the partnership of Gage & Son. The statement in the letter is: “I don’t think I will be able to finish paying out my part of the garage, so I will give my part to you, which is about $1,200.” It is significant that when Mrs. Gage first filed her intervention the sole claim made as to the consideration of the conveyance to her was the alleged loan of $1,450 made in 1923, and it was not until several months after that claim was made by amendment to the intervention of an interest by reason of the gift from her son. He was then married, and is not shown to have had any source of income while engaged in business with his father except from the business itself, out of which he testified he lived. No claim was ever made by him for an interest in the property, and he permitted his father to deal with it as his own.

This case is quite different from that of Baker v. Gowers, supra, relied on by the appellant, for in that case it was conclusively shown that the grantee in the deed alleged to be fraudulent was a person of large means and had advanced money to assist her grantor in the conduct of his business for which the canceled checks were exhibited and notes were given to evidence the different amounts borrowed, all of these contemporaneous with the loan of the money, which did not long precede the conveyance of the property. It was also shown that the value of the property conveyed was much less than the debts due her. In the instant case, as we have seen, there is no evidence of any contemporaneous writing evidencing the transaction in any way or that the appellee had the means to enable her to make the alleged loan. She permitted her husband for more than five years from the time he first made the purchase of the lot to deal with it as his own, and a few weeks before the conveyance to her he had made an application for a loan in which he stated that he was the sole owner of the property, and just a few days before the execution of the deed to her she had signed and acknowledged the relinquishment of dower in the property, her husband mortgaging it to secure the loan for which application had been made; also, it was not until suit against R. Gage became imminent that the conveyance was made, and up until that time no claim for interest in the property had been made. These all were circumstances tending to cast doubt upon the bona fules of the transaction, and no effort was made to explain the same except the general statements heretofore mentioned. The trial court had a right to regard these circumstances as against the appellant, for, where the circumstances under which a transfer of property by a debtor is made are suspicious, the failure to give explanatory evidence is a badge of fraud. Miller v. Jones, 32 Ark. 337; Burke v. Napoleon, etc., 134 Ark. 580, 202 S. W. 827; Gallup v. St., etc., Ry. Co., 140 Ark. 347, 215 S. W. 586; Ramey v. Fletcher, 176 Ark. 196, 2 S. W. (2d) 84.

When all the attendant circumstances are considered, we think the chancellor properly found that there was no consideration passing between R. Gage and the appellee for the conveyance of the property, and that the transaction should be treated as a voluntary conveyance. The evidence preponderates that, when the conveyance was made to appellee, R. Gage had no other property out of which his debts could be met except forty acres of land which sold for $55. It is doubtful in whose name is the homestead. Gage testified that the title was in him, and the appellee testified that it was in her, but whether in one or the other would make no difference in this case, for it could not be reached under execution. These circumstances were sufficient to justify the chancellor in his finding that the transaction was fraudulent. Norton v. McNutt, 55 Ark. 59, 17 S. W. 362; Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Crampton v. Schaap, 56 Ark. 253, 19 S. W. 669; Smith v. Wheat, ante p. 149.

It follows that the decree of-the trial court dismissing the intervention for want of equity and canceling the appellee’s deeds was correct, and it is therefore affirmed.


text:
    Federal Land Bank of St. Louis, Missouri, v. Blackshear.
    Opinion delivered April 20, 1931.

      E. H. Tharp and J. R. Crocker, for appellant.

      W. P. Smith and O. C. Blackford, for appellee.
   Hart, C. J.

This was an appeal by J. T. Blackshear from a decree of the chancery court postponing the sale of mortgaged premises under a decree of foreclosure for eleven months and thirty days. The Federal Land Bank of St. Louis, Missouri, filed a suit in equity against J. T. Blackshear and others to foreclose a mortgage of $1,800 on a tract of land in Lawrence County, Arkansas. The mortgage was duly acknowledged and recorded, and was in the usual form of mortgages provided for under the provisions of the Federal Farm Loan Act, 12 USO A, § 771. The proceedings for foreclosure were had and carried on according to the usual chancéry practice. A decree of foreclosure was in due time entered of record. Judgment was rendered in favor of the plaintiff against the defendants for the amount of the mortgage indebtedness, together with the accrued interest. The decree recites, among other things: ‘ ‘ That, if said sum of money and interest thereon, as herein adjudged to be due plaintiff, shall not be paid within eleven months and thirty clays from this date, together with all costs of suit herein adjudged to be paid by said defendants, * * * the commissioner of this court hereinafter named is ordered to sell said lands, ’ ’ etc.

The only error relied upon for a reversal of the decree is that the time allowed by the court to the mortgagor to pay the mortgage indebtedness before a sale could be had under the foreclosure decree was unreasonable.

According to the usual chancery practice, a sale of the mortgaged premises is directed to be made by a commissioner appointed for that purpose if the mortgage indebtedness is not paid within a limited time fixed by the court which, according to the chancery practice, does not usually exceed six months, or at any rate does not extend beyond the beginning of the next term of the court. Daniell’s Chancery Pleading & Practice, (6th ed.) vol. 2, * pages 999 and 1000, and * page 1266. Ib. (8th ed.), vol. 2, page 1230.

A reasonable time in cases like this has been recognized by the Supreme Court of the United States to be ninety days or six months, or until the next term of the court, in the discretion of the court. Howell v. Western Railroad Co., 94 U. S. 463.

In the application of this well-established rule in equity to the present case, we are of the opinion that the time allowed by the chancery court within which to pay the mortgage.indebtedness after the decree of foreclosure was unreasonable and is calculated to disturb tbe equity practice in cases libe this. Therefore the decree will be reversed, and the cause will be remanded with directions to the chancery court to fix a period of time for the payment of the mortgage indebtedness before the land is advertised for sale in harmony with the equity practice laid down in this opinion and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Hart, C. J.,

text:
    Scott v. Carnes.
    Opinion delivered April 20, 1931.

      G. M. Martin and II. G. Wacle, for appellant.

      L. B. Smead and Gaughan, Sifford, Godivin & Gaughan, for appellee.
   Hart, C. J.,

(after stating the facts). Appellee seeks to uphold the decree in this ease upon the authority of Cramer v. Remmel, 132 Ark. 158, 200 S. W. 811, on the ground that he is a bona fide purchaser for value without notice of the land in question. The evidence introduced by appellee shows clearly that he is a purchaser for value in good faith of the land in question. This much is conceded by counsel for appellant, but it is strongly insisted that appellee had notice of the rights and equities of appellant.

Where a purchaser shows that he has paid a valuable consideration in good faith, the burden of showing that he purchased with notice is on the one alleging it or who relies on the notice to defeat the claim of bona fide purchaser. Osceola Land Co. v. Chicago Mill & Lumber Co., 84 Ark. 1, 103 S. W. 609; and Oil Fields Corporation v. Dashko, 173 Ark. 533, 294 S. W. 25.

Since appellant relies on notice, actual or constructive, to defeat the claim of appellee as a bona fule purchaser, it devolved upon her to show that appellee had notice. It was shown, by appellant that she had received a deed to a one-half interest in the land from Rogers, the owner of it in 1911, but the deed was never acknowledged or recorded until after the present suit was instituted. Appellant resided on the land at the time the deed was executed to her and moved into a house on the part of the land claimed by her in this suit in 1915 and has resided there ever since. Rogers, who executed the deed to her, resided in a smaller house near the one in which she lived.

Appellant invoked the rule that possession by a person under a deed, though unrecorded, is notice of his rights and interest in the property. The reason is that actual possession is evidence of some title in the possessor and puts the subsequent purchaser or mortgagee on notice as to the title which the occupant holds and claims in the property. Hence it is said, that actual, visible and exclusive possession is notice to the world of the title and interest of the possessor in the property, and it is incumbent upon the subsequent purchaser or mortgagee to make diligent inquiry to learn the nature and interest of the claim of such possessor; and if he does not do so, notice will be imputed to him. American Building & Loan Assn. v. Warren, 101 Ark. 163, 141 S. W. 765; and Naill v. Kirby, 162 Ark. 140, 257 S. W. 735. Many other cases in support of the rule might be cited, but it is too well-settled in this State to need any further citation of authorities.

We do not think, however, that the general rule has any application under the facts of this case. In all the cases on the question, it is said that the possession of land which will impart notice of title thereto must be adverse, exclusive, unequivocal, and must be inconsistent with the claim of any other person. The possession must be sufficiently distinct and unequivocal so as to put the purchaser on his guard and such notice that is not likely to be misunderstood or misconstrued. Townsend v. Little, 109 U. S. 504, 3 S. Ct. 357.

Tested by this well-settled rule, it is plain that the physical occupancy by appellant was not such possession as to put a purchaser on inquiry and charge him with constructive notice. In February, 1911, W. L. Rogers, who had been the owner of the land for many years, executed a deed to Eller Scott to an undivided one-half interest in the land. Rogers was a white man and Eller Scott a negro woman who had lived on his farm for many years. In Walden v. Williams, 128 Ark. 5, 193 S. W. 71, the court said that, in order that actual occupancy be constructive notice of ownership, it must be apparently exclusive. Otherwise, the possession is presumed to follow the true title, and those who deal with the owner of the record title are warranted in treating him as being the exclusive owner. There, as here, the parties owned the land as tenants in common, and both occupied the land. The court said that the occupancy, being a joint one, was referable to the owner of the record title, and that the purchaser for value was not charged with constructive notice of the adverse interest of the tenant in common who had no record title. Among the cases cited is Roderick v. McMeekin, 204 Ill. 625, 68 N. E. 473. In that case the court said:

“The mortgagee had a right to suppose, not only that he (mortgagor) was the owner because the record showed him to be the owner, but that he was in possession because he was using the money paid to him b3r her to build the house. If it be a fact that Mrs. Roderick (claiming a joint interest with her brother) was upon the premises setting out shrubbeiy or superintending the construction of the cellar, or cleaning the windows, her possession, as indicated b3>r such acts, cannot be regarded as anything more than a joint possession with her brother. Possession to be notice must be not only open and visible, but exclusive. A possession, which is held jointly with another person, is not such a possession as is exclusive, or operates as notice, or to excite inquny.”

So, in the present case, the mortgagee had a right to deal -with Rogers, the mortgagor, as the exclusive owner of the land because he had the record title to it. The fact that appellant had lived on the land for many years and had borne him three children did not. make it the duty of the mortgagee to go to her and inquire what interest she had in the land. The mortgagee did ask his lawyer if she could be considered Rogers’ common-law wife; and, when he was informed that she could not, he made no further inquiry about the matter. He had a. right to assume that she was merely living on the farm of Rogers and illegally cohabiting with him as she had been doing for many years. There was nothing whatever that -would make it the duty of appellee to make any inquiries as to whether Rogers had executed to her a deed to any interest in the land. After Rogers had executed a deed to her to a one-half interest in the land, they held it as tenants in common, and Eller Scott had no exclusive or apparently exclusive possession of the land because Rogers continued to reside upon it and manage it as he ha.d done before.

This brings us to the question of whether or not appellee had actual notice of the rights of appellant in the land. Here the burden was upon appellant to show such notice, and whatever was sufficient to put appellee on inquiry amounts to notice of such inquiry would lead to a knowledge of the facts by the exercise of ordinary diligence. Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985, and cases cited.

The chancellor found the general issue in favor of appellee, and it cannot be said that his finding is against the preponderance of the evidence. The testimony on the question of actual notice is in irreconcilable conflict. On the one hand, Eller Scott testified in positive terms that when Dr. Wooldridge and his associates took the option contract on the land, he came to see her and she told him that she had a deed to an undivided one-half interest in the land. The land was situated within a mile of Camden, and Dr. Wooldridge testified that soon after the option contract was executed Eller Scott told him of her interest in the land. He then went back to town and told his associates in the option contracts, Luther Ellison and appellee Carnes, what Eller Scott had said to him about having a deed to an undivided one-half interest in the land. Both Carnes and Ellison denied that Dr. Wooldridge told them that he had received information that Eller Scott had an undivided one-half interest in the land by deed which she had received from W. L. Rogers. Carnes acted for Mrs. Umsted when she took the mortgage on the land and when she received the deed to it from Rogers. His knowledge would then be imputed to his princ-ipal. While he might be considered an interested person, Ellison was not. He had no interest whatever in the transaction. The transaction with Mrs. Umsted and Rogers was not based upon the option contract at all. Carnes simply acted as agent for Mrs. Umsted in the matter and subsequently obtained a deed from her to the property. . The option contract was not considered in the transaction at all. As we have just seen, the testimony on the question of actual knowledge was in direct conflict, and the chancellor was justified in finding for appellee on this point.

It is insisted, however, that the attendant circumstances turned the scale in favor of appellant. It is pointed out that Carnes knew that appellant had been living on the land for many years with Rogers and had borne him three children. This is true, and the further fact is that, at the time of the transaction, appellee asked if the signature of Eller Scott should not be obtained to the mortgage given to Mrs. Umstéd by Rogers on the g’round that she might be considered the common-law wife of Rogers. He was informed by his lawyers that the negro woman could not be the common-law wife or any other kind of wife of a white man in this State, and that her signature to the mortgage was not necessary. We do not think that it was his duty to inquire any further. Her actual occupancy of a house on the premises was not such possession as to put a purchaser on inquiry as to whether she had acquired an interest in the property by purchase or deed or gift. On the contrary, her occupancy was calculated to mislead a mortgagee. He would attribute her occupancy of the premises to the fact that she was living there in order 'to be near Rogers and illegally cohabit with him.

The option contract from W. L. Rogers to W. B. Wooldridge, J. S. Carnes, and Luther Ellison is dated January 14, 1927, and recites that it is subject to the rights of Mrs. Edna Umsted and other named parties under a certain deed of trust executed on the same day. According to the testimony of Dr. W. B. Wooldridge, he went to see Eller Scott as a physician shortly after the option contract was executed, and while at her house told her about the option they had to sell the land, and she then told him about her deed. When he got back to town, he told Carnes and Ellison Avhat she had said about having tlie deed. In another part of his testimony Dr. Wooldridge said that he did not know anything abont the deed to Eller Scott until she told him about it on the occasion when he was at her house. The chancellor might have found from his testimony that Carnes did not know about the deed from W. L. Rogers to Eller Scott until after the mortgage to Mrs. Umsted and other persons had been executed. Carnes obtained title from Mrs. Umsted, and he acquired whatever title she had.

It follows that the decree will be affirmed.