text:
    McClain v. Sorrels.
    Opinion delivered March 6, 1922.
    1. Prohibition — when remedy lies. — Where the circuit court is without jurisdiction to remove a court officer upon information filed by the prosecuting attorney, the appropriate remedy is prohibition against the court to restrain further proceedings.
    2. Officers — jurisdiction to remove. — Under Const. 1874, art. 7, § 27, providing that “the circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office,” held that a proceeding to remove a county officer for an indictable offense must be by indictment, and the offense set forth in the indictment must be one which necessarily includes the grounds for removal, since otherwise the removal could be accomplished without giving the accused the benefit of a trial upon the issue as to the grbunds for removal.
    3. Officers — removal—gross immorality. — An indictment and conviction of a county officer for the statutory offense of being drunk on a public highway does not, regardless of circumstances, involve moral turpitude so as to constitute “gross immorality,” within the meaning of the Const. 1874, art. 7, § 27, and Crawford & Moses' Dig., § § 10335-6, authorizing the removal of county and township officers for “gross immorality.”
    4. Officers — removal—information.—An information will lie against a county officer to remove him for gross immorality, but the accused is entitled to a hearing upon that charge.
    Prohibition to Lincoln Circuit Court; W. B. Sofreís, Judge;
    writ awarded.

      W. F. Kirby and R. W. Wilson, for petitioner.
    Respondent pro se.

   McCulloch, C. J.

The petitioner, John G-. McClain, is the sheriff of Lincoln County, and has filed a petition here for a writ of prohibition to restrain the circuit court of that county from summarily entering a judgment removing him from office.

The petitioner was indicted by the grand jury of Lincoln County at the September, 1921, term of the circuit court for the statutory offense of being intoxicated on a public highway. He was tried and convicted at that term of court, and a judgment was rendered imposing a fine of $25 in accordance with the verdict of the jury. He appealed to this court, and the judgment of the circuit court was affirmed. McClain v. State, 151. Ark. 266.

Upon the convening of the circuit court of Lincoln County for the February term, 1922, the prosecuting attorney of the circuit filed a petition setting forth the indictment and conviction of petitioner, as above recited, and moved the court for an additional judgment in that proceeding removing the petitioner from the office of sheriff. Petitioner appeared and made objection to the court proceeding in the matter, and, upon his objections being overruled, he filed his petition here for prohibition.

If the court is without jurisdiction to enter an order of removal from office at this time in the criminal proceeding' against petitioner, as sought by the prosecuting attorney, then the appropriate remedy is prohibition against the court to restrain further proceedings. Speer v. Wood, 128 Ark. 183.

Justification is sought for the attempted exercise of jurisdiction under the statute, which reads as follows:

“Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant. Act March 9, 1877, p. 64, § 1.” Crawford & Moses’ Digest, § 10335.
“Upon conviction of any such officer for any such offenses, a part of the sentence of the circuit court having jurisdiction shall be to remove such officer from office, and the clerk of the court, at the close of the term, shall transmit to the Governor a certified transcript of the presentment or indictment, with the judgment of the court thereon, and the vacancy shall be filled as may be prescribed by law at the time the same occurs.” Id. § 10336.

The contention of petitioner is that the statute quoted above does not authorize removal from office as a part of the judgment of conviction of a criminal offense, unless the charge in the indictment necessarily includes the charge of the commission of one of the grounds for removal stated in the statute, and that the charge in the in-dictment against petioner, being merely a statutory one for being drunk on a public highway, does not involve any of the grounds of removal set forth in the statute.

It is also contended by counsel for petitioner that, even if the statute authorizes removal as a part of the judgment of conviction, such a judgment cannot be entered after the lapse of the term at which the judgment of conviction was entered.

"We are of the opinion that the first contention of counsel is correct, and that the court has no power to render a judgment of removal from office upon the indictment against petitioner. There is a provision of the Constitution on this subject, which reads as follows:

“The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office.” Art. VII, § 27, Constitution of 1874.

This court, in the case of Haskins v. State, 47 Ark. 243, construed the above quoted provision of the Constitution to mean that “when an alleged cause of removal from office is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State’s attorney may proceed upon his own motion, by information filed under oath; but if it is for an indictable offense, the proceeding must be by indictment.” It results from this interpretation of the Constitution that, in case the removal is to be accomplished under an indictment for an offense involving one of the grounds for removal stated in the Constitution, the offense set forth in the indictment must he one which necessarily includes the grounds for removal, otherwise the removal would be accomplished without giving the accused the benefit of a trial upon the issue as to the existence of the grounds for removal.

In the Haskins case, supra, the charge against the sheriff was for permitting prisoners to go at large, which necessarily constituted official misconduct, and the court held that the charge must be brought by the grand jury, and not by information filed by the prosecuting attorney. The converse of that rule is equally true, and if the charge does not involve one of the grounds of removal stated, then the removal must be sought on information containing the accusation of facts that constitute grounds for removal.

In the present instance the petitioner was charged with the statutory offense of drunkenness on a public highway, and the inquiry under that indictment was confined to the single fact charged, which did not necessarily involve any of the grounds for removal stated in the Constitution. It did not relate to any official misconduct, nor did it necessarily include the charge of either “incompetency, corruption, gross immorality” mentioned in the statute. A single act of drunkenness on a public highway does not necessarily,, regardless of circumstances, involve moral turpitude so as to constitute gross immorality within the meaning of the Constitution and statute. It would be a question of fact for court or jury under the given circumstances of a case.

In the case of Winfrey v. State, 133 Ark. 357, we held that an indictment against an officer for transporting liquor did not fall within the statute authorizing a summary judgment of removal. Of course, this does not preclude the institution of proceedings by information charging, as grounds for removal, gross immorality, but the accused is entitled to a hearing on that charge, so that there may be a determination of the question whether or not his conduct amounted to gross immorality or incompetency within the meaning of the statute, but in the proceedings under the indictment the court had no jurisdiction under the charge to enter a summary judgment.

Having reached this conclusion, it is unnecessary to determine whether the court could, under an indictment authorizing removal, enter such an order after the lapse of the term at which the judgment of conviction was entered.

• The writ of prohibition is therefore awarded in accordance with the prayer of the petition.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Magnolia Petroleum Company v. Smith.
    Opinion delivered March 6, 1922.
    Damages — permanent injury to well. — Testimony that on two occasions defendant permitted gasoline to flow into plaintiff’s well and to damage the water therein did not justify a finding that the well was permanently injured; there being no testimony that the well was permanently injured, or that the flow of gasoline was continuous, and it being undisputed that gasoline is a volatile liquid which quickly evaporates and is absorbed by the earth.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    reversed.

      Gochrill & Armistead and John W. Newman, for appellant.
    There was no evidence to connect any negligence on the part of the defendant with any injury to the plaintiff’s well, but the evidence shows that it was contrary to the physical facts. 79 Ark. 608.
    Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. 133 Ark. 353. The injury was only temporary. 63 Ark. 536; 95 Ark. 297.

      Pole McPhetrige, for appellee.
    The findings of fact by a court sitting as a jury are conclusive if there is evidence to support them. 90 Ark. 512; 91 Ark. 108; 92 Ark. 41; 100 Ark. 166; 86 Ark. 504.
    The findings of a court on conflicting evidence is conclusive on appeal. 104 Ark. 154; 96 Ark. 606; 84 Ark. 359; 88 Ark. 587.
   Wood, J.

The appellee instituted this action against the appellant. The appellee alleged that he was the owner of a certain lot in the city of Mena, Arkansas, on which was situated a dwelling house; that there was a well on the premises that cost about $200, which furnished good and pure water for use on the place; that the appellant erected two large oil tanks upon the right-of-way of the Kansas City Southern Railway about eighty feet from appellee’s well; that the slope of the ground and drainage from the tanks was towards the well; that the appellant while transferring gasoline from oil cars to its tanks by means of pumps; negligently permitted several hundred gallons of gasoline to be spilled upon the ground, which ran into appellee’s-well, rendering same wholly unfit for use; that the appellant by the wastage of the oil and gasoline has caused the ground around to be so saturated that the water in appellee’s well is contaminated; that the appellee has made every effort to clean the well, but has been unable to do so; that the appellee, through the negligence of the appellant as above set forth, has been compelled to abandon the use of the well on his premises; that he has sustained damages by reason of appellant’s negligence as alleged in the sum of $400, for which he asked judgment.

The appellant, in its answer, admitted that it had erected the tanks on the right-of-way as alleged for the purpose of storing oil, petroleum and gasoline, but denied all the other allegations of the complaint. By the consent of parties the cause was tried before the court sitting as a jury.

The appellee testified that he was the owner of the property described in his complaint; that there is a well on the lot 32 feet deep, walled the first eight feet from the bottom with dry brick and the balance of the way to the top with brick cemented together, extending to about two feet above the surface of the ground. About the 8th of August, 1918, the appellee discovered gasoline overflowing from the appellant’s tanks, and so informed the pumper'. The second day the well was saturated with gasoline, so that it was unfit for use for anything — the chickens and calves would not use it. The appellee had. no way of estimating the amount that was wasted, but there was quite a lot of it. Prior to that time the appellee had never had any trouble with his well. It furnished good water. The appellee drew the water out of the well for several days and employed a man to help. After they had lowered the water, appellee let a man down in the well to finish dipping it out, and the man could not stay in there on account of the gasoline. Again about the 22nd of July, 1920, a pump or pipe connecting with the pump burst, and 'by gravity the gasoline overflowed from the railroad car or tank. The gasoline overflowed considerably around their pump-house, and the well was affected worse at that time than it was before. Still another time appellee discovered that coal oil was wasting, but he had never looked in the well since then. On the morning of the second or third day after the discovery of the wastage of the gasoline the second time appellee drew a lot of water out of his well and had it filtered, and out of the seven gallons of water there was filtered four gallons of gasoline. Appellee had never drawn all of the water out of the well since 1920. When appellee first noticed the gasoline, it was running about twenty feet away from the pump on top of the ground, and the ground was entirely saturated for quite a distance around the pump. Appellee’s well was about 115 or 120 feet from where the gasoline was overflowing. The gasoline would come into the well anywhere from the bottom up to about eight feet. It could go behind the wall where it is loose and get into the well by penetration. The gasoline would have to go down about twenty-four feet to get under the cemented and brick wall. It couldn’t get into the well from the top of the ground. Appellee didn’t know what it cost him at the time he fixed up the well. The lowest estimate that he received from well diggers was $150. He did the work principally himself. He did not live on the property but rented the same to a tenant, and the tenant used water from a neighbor’s well about 115 feet away. It was claimed that gasoline also got in this well, but they kept bailing it out, and it got all right. There is a dwelling house on the lot, with three rooms. The appellee rented the same for $4 per month. When appellee first discovered gasoline in the well, the property was renting for about half what it now rents for.

Appellee was asked what it would cost to draw all the water out of the well at one time and stated that he guessed it would cost about $5. He further stated if they would get the gasoline out of the brick and ground all around it would be pure water, he supposed. Witness further gave it as his opinion that the oil and gasoline could not get into the well from any other tanks than those of the appellant. There had never been any oil in the well of the description that the railroad companies used. In digging the well appellee went down eight or ten feet through dirt and shale before he struck the solid rock.

Another witness testified that he assisted the appellee at the time indicated in drawing the water out of his well. The water was not fit for use. They drew the water out of the well and witness went down to dip up some, but could not breathe because there was either coal oil or gasoline in the well. The fumes were like the fumes of gasoline — affected witness’ eyes. Witness offered to dig a well for the appellee about thirty-three feet deep for $150 and cement the top and not wall it. Witness did not know whether it was gasoline or coal oil in the well. Some kind of white oil.

A witness, who was the tenant of the appellee, testified that he lived on the place previous to the time the gasoline got in the well and used the water out of it all the time until August, when the gasoline got in the well, and witness stopped using it and had not used it since because it had been unfit for use. Witness knew when appellee drew the water out of the well and filtered it and got gasoline out of it. Witness knew it was gasoline because he used it to run his car. The well got worse after that,- and it was worse along in July, 1920.

Another witness testified that he lived on the place in 1918; that gasoline got in the well in 1918, and then it cleared up and got a little better. They drew it out several times, but never did draw it all out at once. Witness knew that they had filtered gasoline out of the water.

Another witness testified that he was passing the appellee’s place on one occasion two or three years before and saw that the gasoline tanks were leaking. He called the attention of the party living on the place to this fact. It was about three o ’clock in the afternoon. There was no one at the tank at the time. Witness judged that it was overflowing at the rate of four or five hundred gallons a minute. Witness did not notice any on the ground except what was under the tank. The next day the tenant called witness’ attention to the well, and there appeared to be oil or something in the well. Witness did not know what it was:

The State manager of the appellant testified that he investigated the condition of the ground around the tanks of the appellant at Mena. He measured the place from where the gasoline cars were unloaded to appellee’s well, and it was approximately 138 1-2 feet, which would make it about 118 feet from the pump where appellee claimed the gasoline overflowed to his well. The drainage from the point where the overflow had occurred was not in the direction of the appellee’s well, but was toward the curve in the road, which was situated between the pump and the well, and there was a ditch on each side of the road approximately five inches — that is, the road bed was five inches higher than the ditch. The gasoline, if enough of it should overflow, would go down toward the curve of the road and into the trench around the front of the house and down the hill. If five or six hundred gallons of gasoline should spill at the pumping station, it would not be enough to soak through the ground and get into a well 118 feet away. It would flow off and evaporate. If the ground was real sandy it might penetrate an inch, but it would soon be out of there. The soil there is sandy loam mixed with rock. If 550 gallons of gasoline had spilled, it would be absorbed by the earth and evaporation before it ever got into the well. Gasoline evaporates a great deal faster than oil. Gasoline is a thinner product than oil. Oil would penetrate a little deeper than gasoline because it would not evaporate as rapidly. Witness- examined the ground where it was reported that the gasoline had soaked in. He could not find any indications of oil except around the edges of the pump house where the pipes go into the pump. There might be a natural drip. Witness took up soil five or ten feet away from there, and he could hardly find a trace of oil, and in about fifteen feet from, the pump toward the well witness couldn’t find anything at all. They dug down about twelve inches. They took samples from several points around the pump house. Witness took these tests to see if oil had entered the ground around there. The oil that had been dripping there for some time had penetrated six or eight inches. They didn’t find anything there that amounted to anything — not even a trace. It was a physical impossibility for any oil or gasoline to have gotten over in that well from an earth stratum or from the surface. From witness ’ idea -and experience in the gasoline business, he contended that no pure gasoline could have gotten over to that well through the strata of earth unless there was a pipe or something else. If it was wasted or poured out there, it would flow off of the surface and down the ditch and evaporate. Gasoline will not penetrate more than an inch or two on account of evaporation. Coal oil would stay longer and penetrate deeper. Witness, in answer to a question, stated that he didn’t think it was possible for gasoline to have soaked down- in the ground and to have struck a vein and flowed down into the well. Witness was positive about that.

Another witness testified on behalf of the appellant that he was the agent in charge of the appellant’s plant at Mena in 1919 and 1920, on the occasion that the pump broke. At that time they lost about ten gallons of gasoline. All that spilled was what was in the pumps after they took them apart to repack them. The gasoline hardly got the ground wet around there. The pump was on a cement base, and it just-barely ran off of the cement base. On another occasion there were about twenty-five or fifty gallons of oil spilled around the pump. It was not close to the time when the gasoline was wasted. Witness was not there in 1918, the two years prior to July, 1920, when they claimed that gasoline was wasted. But in July, 1920, witness knew that not exceeding ten gallons of gasoline were wasted when the pumps got out of fix.

Other witnesses also for the appellant testified that in 1920 a very small amount of gasoline escaped when the pumps were being repaired.

• In rebuttal the appellee testified that in July, 1920, appellant’s pump or some part of it burst and the natural flow of the gasoline from the tank to the pump was running out on the concrete at the pump and spattering off on the ground. There was no one there to take charge of it, and appellee did not know how long it had been running. The pump ran all night. Part of the time there was no one there. Appellee in passing saw that the door was shut and locked, and the pump was running. The next morning at the time the appellee saw the gasoline flowing around there was no one there.

.La rebuttal a witness for the appellant in charge of the pump testified, denying that the pumps were left running at night without any one in charge; that they never pumped there at night. The trial court visited the premises.

Upon substantially the above facts, the court found that the well was ruined by a flow of gasoline into it, and that the only source from which the gasoline could have flowed into the well was from appellant’s tanks, and the only way in which it could have gone into the well was by penetrating and going down through some vein into the well. The court found that the appellee had been damaged in the sum of $200, and rendered judgment in his favor for that sum, from which is this appeal.

The court erred in finding that appellee’s well was ruined by the flow of gasoline into same and in giving the appellee damages as for a permanent destruction of his property. The fact that on two occasions the gasoline flowed into appellee’s well from the defects in appellant’s pumping machinery, which rendered the water in the well at those times unfit for use, would hardly justify the court in finding as a matter of law that the well was permanently destroyed. While the proof was to the effect that on the first occasion the appellee endeavored to remove the gasoline from his well, and was unable to do so, and on that occasion the party who was sent down into the well to dip out the water from the .bottom was overcome by the fumes and had to desist, yet these facts are not undisputed proof of a permanent damage to the well. The testimony on behalf of the appellant is undisputed that gasoline is a volatile liquid and would quickly evaporate in the air and foe readily absorbed by the earth into or over which it flows. Therefore, even though the testimony would have justified a finding that the well on the two occasions mentioned was rendered unfit for use by the overflow of gasoline from the appellant’s pumps, there was no testimony to warrant a finding that this condition was permanent. There was no testimonv to warrant a finding that the defect in the appellant’s pumps was a permanent condition. On the contrary, the testimony only tended to prove that the overflow of gasoline into the appellee’s well took place on two occasions, and something like two years intervened between the first and second overflows.

Since, under the undisputed testimony, gasoline is a volatile liquid and one readily absorbed in the earth, and since it had flowed into the appellee’s well only on two occasions, and since the defect in the appellant’s pumping machinery was not such as to cause a constant flow of gasoline into appellee’s well, it was obviously con-' trary to the laws of nature and the physical facts, as shown by the testimony, to conclude that the injury and damage to appellee’s property were permanent and continuous, and to allow damages on the theory that the well was wholly destroyed. Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 8 A. L. R. 798, N-2, and other cases in note to Kelly v. Jones, 8 A. L. R. 792. It appears from the testimony, as already stated, that the inherent physical nature and quality of gasoline is such that it would soon evaporate into the air or be absorbed in the ground; that it is a lighter liquid than water. Therefore, unless the source of its flow was perennial, it could not have permanently destroyed appellee’s well, because when the water was drawn off the gasoline also would be drawn off. Hence the measure of appellee’s damage was not as for a total destruction of Ms well and the cost of digging another one, as the learned trial judge found, but the expense which appellee would necessarily have to incur in order to restore his well to its former use. We are convinced that the testimony did not justify the court in finding as a matter of fact that appellee’s well was wholly destroyed, and in declaring as a matter of law that he was entitled to damages as for a permanent and total destruction of his property.

The judgment is therefore reversed, and the cause remanded for a new trial.


text:
    Missouri Pacific Railroad Company v. Gregory.
    Opinion delivered March 6, 1922.
    Trial — direction of verdict. — In an action against a railroad company for an assault committed by a night operator where there was evidence tending to prove that the assault was committed by defendant’s agent while in the prosecution of the master’s business, it was not error to refuse to direct a verdict for the defendant.
    Appeal from Clay Circuit Court, Western District; R. II. Dudley, Judge;
    affirmed.

      Gordon Frierson, for appellant.
    Davis, the servant, was not acting for or on behalf of the appellant in making the assault upon appellee, but was acting either in what he conceived to be self-defense, or from motives of personal anger toward appellee. In neither case was the appellant liable. Americcm Ry. Exp. Go. v. Machley, 148 Ark. 227.

      J. N. Moore, for appellee.
    The assault was committed by the servant of appellant acting in the line of his duty, as testified by him, and appellant is liable therefor. 42 Ark. 553; 58 Ark. 386; 131 S. W. 971; 88 S. W. 582.
   Wood, J.

This is an action by the appellee against the appellant for personal injuries. The appellee alleged in substance that the night operator of the appellant at its station at Kno'bel, Clay County, Arkansas, acting in the line of his employment, assaulted the appellee with a deadly weapon, to-wit, a pistol; that the appellee was lawfully on the platform of the appellant when the appellant’s night operator and acting station agent, without any cause or provocation, struck the appellee with a pistol, inflicting upon him serious personal injuries; that on account of the unlawful, wrongful, wilful, and negligent act of the appellant’s agent in thus assaulting the appellee and in using vile epithets and insulting language toward him, he had been actually damaged in the sum of $1,500. He prayed judgment for this sum and also for punitive damages in the sum of $1,000. The appellant denied all the material allegations of the complaint.

The appellee testified in substance that on November 29, 1920, he was at the depot of appellant at Knobel, Arkansas; that he was watching for appellant’s train No. 18 to come in and was near the northwest door of the depot. Davis, appellant’s depot agent, came out of the station and passed to appellee’s right. Appellee paid no attention to what he was doing — saw that lie was at work. Appellee next noticed Davis when he ran up against the appellee. Appellee did nothing and had said nothing to Davis that night. Davis before that had said nothing to him. Davis said to appellee: “What in the hell are you doing here?” and turned around and said, “Get,” and struck appellee with a pistol. Davis kept saying, “Get” and held out the pistol. Appellee retreated, and Davis followed him fifteen or twenty feet below the south end of the depot. On the night before the occurrence appellee was at the depot talking to a fellow he knew, and Davis came in with a poker to fix the fire, and turned around to the appellee and said, “Have you any business here, Gregory?” and appellee replied, “Nothing in particular,” and Davis stepped to the door and said, “Get out of here.” Appellee replied, “What is the idea?” and Davis said, “Get out,” Appellee stepped out and said, “Old man, you get off the railroad premises, and I can whip you on less ground than you are standing on.” Davis said nothing but shut the door and went-back. Appellee did nothing to cause the assault. Appellee occasionally met women who came in on the train. Some of them were nice women. There was other testimony corroborating the testimony of the appellee as to the manner of the assault.

It was shown by the testimony on behalf of the appellee that it was the duty of the station agent to maintain order, prevent trespassing in and around the station house to the best of his ability; that telegraph operators were required to prevent loafing in the office and in waiting- rooms, but not to do the policing of platforms. Night. operators are expected to protect the company’s property, but are not expected to keep people off of the premises unless they are suspicious characters or chronic loafers. If brought to his attention that a man is a trespasser, it would be within the scope of his authority for the operator to order him off of the premises.

Davis, the station agent, testified that he was the telegrapher for the appellant at Knobel on November 29, 1920. About five minutes after twelve he went out to load baggage on the train. Appellee was standing between the waiting room door and the coach. "Witness had to go around him. Witness unloaded the baggage and had to go around the appellee again as he went back to the office. Witness struck the appellee, and appellee struck witness. Witness stated that his mind was on his business, but that he was expecting to be assaulted by the appellee on account of an occurrence the night before, and witness wheeled and struck the appellee with a pistol. The occurrence the night before was in the waiting room, where the appellee was cursing, and witness had ordered him out. Appellee went out cursing. On other occasions appellee had come to the station swearing and talking' with indecent women, and, if there were any decent women in there, they would be insulted. This got to be a frequent occurrence. The reason witness ordered appellee off the premises was because complaint was made by the passengers about his conduct.

On cross-examination witness stated that he made up his mind before he went out that he would run the appellee off of the ground if the appellee assaulted him. He put a pistol in his pocket to defend himself. He used it for that purpose. The reason he struck the appellee was because appellee struck him — gave witness a jab of some kind, and witness struck him. Witness did not strike the appellee out of any malice toward him. Witness was asked the following question: “You don’t tell the jury you were out there beating him through any malice you had towards him, do you?” Answer, “No, sir.” Question: “Were you in the discharge of your duty when you went out there and asked him to get out of the station house?” Answer: “Yes, sir.” Question: “Were you in the discharge of your duty to the company when you went out there and tried to get him off the platform?” Answer: “Yes, sir.” Question: “You were just carrying out the duty of your employer, that is what you said?” Answer: “Yes, sir,” and also “I had a report from one of those boys that morning about what he said. ’ ’

The appellant asked the court to instruct the jury to return a verdict in its favor. The court refused to so instruct the jury, to which ruling of the court the appellant duly excepted. The court, on its own motion, instructed the jury in effect as follows: “The question for your determination from the evidence in the case is whether or not at the time of the alleged assault by Davis upon Gregory he was in the line of the discharge of his duty as agent for the defendant company. Should you find from the evidence that he was in the discharge of his duty as agent of the defendant company, the further question as to whether or not the striking of the plaintiff by Davis was in his necessary self-defense and therefore justified; and if you find from a preponderance of the evidence that it was the duty of the agent Davis to keep order and to protect the company’s premises from persons trespassing thereon, and to rid the premises of loafers or persons there without business with the company; and if you further find that on the night of the alleged assault the plaintiff was present in or about the depot without any business, and if you further find from the evidence that the assault of the plaintiff by the said Davis was in an effort by him to make the plaintiff leave the premises of the company, and that in doing so he was acting in the discharge of his duty, you will find for the plaintiff.’’

The court further instructed the jury that if the trouble between the plaintiff and Davis was due to, and on account of, a previous difficulty between them and not on account of or connected with the duties required of Davis at the time of the assault, then plaintiff cannot recover and you should find for the defendant.

The jury returned a verdict in favor of the appellee in the sum of $200, and from a judgment in that sum in favor of the appellee is this appeal.

The only contention of the appellant is that the court erred in refusing to grant its prayer for a peremptory instruction. In American Ry. Express Co. v. Mackley, 148 Ark. 227-232, after citing many cases of this court dealing with the liability of the master for the unauthorized tort of the servant committed during the course of his employment, we said: “The doctrine of all these cases is that the test of the master’s liability is not whether a given act is done during the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business.” See also American Ry. Express Co. v. Davis, ante p. 258.

Under the evidence it was an issue for the jury as to whether or not the assault upon the appellee was committed by the appellant’s agent while in the prosecution of appellant’s business. This issue was submitted to the jury under correct declarations of law. Therefore, there was no error in the ruling of the court in refusing to grant the appellant’s prayer for peremptory instruction.

The judgment is affirmed.


author: Hart, J.

text:
    Carter v. Greenway.
    Opinion delivered March 6, 1922.
    1. Gifts — necessity of delivery. — To consummate a gift, whether inter vivos or causa mortis, the property must he actually delivered, and the donor must surrender the possession and dominion thereof to the donee.
    2. Gifts — requisites of gift causa mortis. — A gift causa mortis must be made under the apprehension of death from some present disease or some other impending peril, and it becomes void by recovery from the disease or escape from the peril, and is revocable at any time by the donor, and becomes void by the death of the donee in the donor’s lifetime.
    3. Gift — presumption of acceptance. — Where a gift causa mortis is made to one person for another, there is a presumption of acceptance if the gift is beneficial.
    4. Gifts — of check.' — Where the rights of creditors are not involved, the delivery of a check, coupled with an intent to transfer a present interest in the money and in the absence of a revocation, is binding - as a gift causa mortis, and the donee has the right to the payment of the check after the death of the donor.
    5. Gift — sufficiency of evidence. — Evidence held sufficient to establish delivery as a gift causa mortis of certain checks and notes.
    Appeal from Independence 'Circuit Court; Dene H. Coleman, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    J. H. Greenway and Cora B. Smith, instituted separate suits in the circuit court against the First National Bank of Batesville, Ark.? to recover the sum of $2,000 each, alleged to be due on certificates of deposit.
    The b.ank filed an answer in which it admitted the execution of the certificates of deposit, and that they were past due. It averred that the certificates were issued upon certain checks purported to have been drawn by C. H. Greenway during his lifetime on an account kept by him. in the bank. After the death of C. TI. Greenway, certain persons claiming to be his heirs at law notified the bank not to pay said certificates of deposit, and that they intended to contest the validity of the same. The bank alleged that it was ready and willing to pay the amount of said certificates to the parties entitled to receive the same. The bank asked that the parties claiming the money be made defendants to the action.
    Malissa C. Carter, Berdie Fulk, Sarah Maxey and Martha Newberry, claiming to be heirs at law of C. H. Greenway, deceased, then intervened in the action. The two suits were then consolidated for the purpose of trial. The case then resolves itself into a contest between them as rival claimants of the money.

      C. H. Greenway was a bachelor about forty years of age when he died, at the residence of Mrs. Cora B. Smith, his sister, during the month of April, 1920, in Independence County, Arkansas.
    According to the testimony of Mrs. Cora B. Smith, one of the appellees, she is a widow with two children, and her brother, C. II. Greenway, had lived with her for nine years before he died. About Christmas 1919, C. H. Greenway, who was a bachelor, gave to her a little box and told her to take it and keep it and put it away where its contents would not get destroyed. The box was wrapped up in paper, and Mrs. Smith put it in a satchel. She kept the box, but did not open it until after her brother’s death, which occurred on April 5, 1920. He died on Monday, and she opened the box the following Saturday in the presence of her 13-year-old daughter. When she opened the box, she found two checks signed by her brother, C. H. Greenway. Both were drawn on the First National Bank of Batesville, Ark. One of them was for $2,000 payable to herself, and the other was for $2,000 payable to J. H. Greenway, their youngest brother. There was also in the box a check signed by C. H. Green-way to her son for $158. The cheeks with the indorsements on them are marked exhibits “A” and “B” and are as follows:
    "exhibit ‘a’.

    “No............................... Batesville, Ark. Nov. 25, 1919.
    “The First National Bank 81-115
    “Pay to the order of J. H. G-reenway $2,000.00 (two thousand) dollars.
    “C. IT. Greenway.”
    Indorsed: “This is the way I want this to go.”
    “C. H. Greenway.”
    J. H. Greenway.
    “Punched: Paid 4-15-20”. 81-115.

      “exhibit ‘b\
    “No...............................Batesville, Ark., Nov. 25, 1919.
    “The First National Bank 81-115 “Pay to the order of C. B. Smith $2,000 (two thousand) dollars.
    “C. H. Greenway.”
    Indorsed: “This is the way I want this to go.”
    “C. H. Greenway.’’ .
    “Cora Smith.
    “Punched: 4-13-20. 81-115.”
    When Mrs. Smith opened the box, besides the checks she found two notes, which, together with the endorsements thereon, she identified as exhibits “C” and “D”, which are as follows:
    “exhibit ‘o’..

    “$100.00 12-2-1919.
    “One day after date we promise to pay to the order of Chas. Greenway, one hundred no-100 dollars. For value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 10 per cent, per annum, and if interest be not paid annually, to become as principal, and bear the same rate of interest.
    “J. T. Hollandsworth and
    “C. B. Hollandsworth.”
    Note attached: “This note will be paid to J. H. Greenway. I mean for him to have this note. C. H. Greenway.”
    “exhibit ‘b’.

    “$75.00 1-12-1919.
    “One day after date we promise to pay to the order of C. H. Greenway, seventy-five no-100 dollars. For value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 10 per cent, per annum, and, if interest be not paid annually, to become as principal, and 'bear the same rate of interest.
    “O. F. Copeland.
    “A. G. Byler.”
    Note attached: “Pay this note to J. H. Greenway. This is the way I want this to go, this way.. C. H. Green-way.”
    Mrs. Smith first showed the contents of the box to George Green way, an older brother. On Monday next after finding them she saw J. H. Greenway and delivered to him the notes and certificates of deposit which were payable to him. On the following Wednesday, Mrs. Smith and J. H. Greenway went to the First National Bank and presented the cheeks for payment. They were required to indorse the checks, and the bank then paid them by issuing to each of them a certificate of deposit for $2,000, payable at the end of six months, on the return of the certificate properly indorsed, with interest at the rate of four per cent, per annum.
    C. H. Greenway was not friendly towards his brothers-in-law, Fulk and Carter. He was more intimate with J. H. Greenway than with his other brothers. J. H. Greenway was the youngest of the boys, and came to see C. H. Greenway nearly every day during his last sickness.
    According to the testimony of Dr. J. H. Kelley, he knew C. H. Greenway and was called to see him as a physician on the 23rd day of November, 1919. Green-way was suffering- from an enlarged liver and a bad heart. Dr. Kelley told Greenway that he was likely to die, and that he was going to die unless he got relief. He had waited on Greenway previously, and beicause of Greenway’s obstinacy about taking medicine he felt like he ought to tell him his real condition. He did not tell him of his serious condition to scare him, but in an effort to make him take the treatment he prescribed for him. He thought possibly he might get better if he would do so.

      Mrs. Smith’s 13-year-old daughter, Edna, corroborated her testimony about the finding of the checks and notes in the box.
    Other evidence for appellees tended to show that O. H. Greenway was not on good terms with his brothers-in-law, Fulk and Carter, and that he thought more of his youngest brother, J. H. Greenway, than he did of his other brothers. .
    On the part of appellants it was shown that C. H. Greenway had settled his differences with his brothers-in-law and was on friendly terms with them' during his last illness. There was also evidence adduced by appellants tending to show that the signature to the checks was not the genuine signature of O. IT. Greenway.
    Inasmuch as there was a verdict for appellees, and its sufficiency must be tested b3^ the evidence adduced in their favor, it is not necessary to more particularly abstract the testimony for appellants.
    Judgment was rendered in favor of appelleds, and to reverse that judgment appellants have duty prosecuted tliis appeal.

      John B. <& J. J. McCaleb, for appellants.
    The verdict is not supported by the evidence. In order to uphold a gift causa mortis the proof must be clear and convincing. 93 Ark. 548; 72 Ark. 307;' 44 Ark. 42.
    The evidence was not sufficient to show that it was the intention of O. IT. Green way to make a gift of the certificate of deposit to Mrs. Smith, or that she was to act as the agent of J. H. Green way. 44 Ark. 42.
    To constitute a valid gift, there must be a complete delivery of the subject of the gift. 12 R. O. L. 495. To establish a gift causa mortis, there must be an intention to pass the title, and this intention must be carried into effect by delivery. 44 Ark. 42; 72 Ark. 307; 43 Ark. 307; 132 Ark. 54.
    The delivery of a check not to be used until after the death of the maker does not constitute a gift inter vivos.
      27 L. E. A. (N. S.) 308. A check of itself does not operate as an assignment of the funds. C. & M. Digest, § 7955.
    One cannot make his own check or note the subject of a gift so that in the absence of payment it can be enforced. against the donor. 105 Cal. 143; 69 Conn. 404; 70 111. 647; 39 Ind. App. 108; 124 Ky. 512; 17 La. 144; 90 Me. 468; 96 Md. 609; 111 Mass. 24; 13 Mich. 282; 60 Ark. 169; 93 Ark. 548; 131 Ark. 501.

      Samuel M. Casey, for appellees.
    The delivery of a gift may be made to the donee, her agent or trustee. 59 Ark. 195.
    ' "When a gift is made by one stricken with a fatal malady and has no hope of recovery, the presumption is, that it is a gift causa mortis. 1.31 Ark. 501.
    If the gift is absolute, a mere postponement of the enjoyment until the death of the donor is not material. 14 A. L. E. 702, and note to 3 A. L. E. 902.
    There was a valid gift causa mortis. 36 S. E. 74; 93 Ark. 548. It was not necessary that the certificate of deposit should be indorsed. 12 E. C. L. 966; 99 Am. St. Eep. 912. The evidence was sufficient to show delivery. 211 S. W. 127.
    The law presumes an acceptance of a gift beneficial to the donee, Gordon v. Clark v. Clark, 149 Ark. 173.
    Mrs. Smith took the gifts to her brother as trustee for him. 101 Va. 414; 44 S. E. 721; 117 Am. St. Eep. 694; 105 S. C. 459; 3 A. L. E. 891.
    The gifts should be sustained. 100 Minn. 331; 111 N. W. 269; 10 Ann. Cas. 473; 8 L. E. A. (N. S.) 828.
   Hart, J.

(after stating the facts). The theory upon which appellees brought this suit and upon which it was tried in the lower court was that they were entitled to the amounts of the checks on the ground of a gift causa mortis. The law on this question has been clearly and concisely stated by the New York Court of Appeals in Ridden v. Thrall, 11 L. R. A. 684. Judge Earl, speaking for the court, said:

Gifts causa mortis, as well as inter vivos, are based apon the fundamental right every one has of disposing of his property as he wills. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is accomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was abundant time and opportunity for him to have made a will. These are the main features of a valid gift causa mortis, as they are set forth in many text-books and reported cases.”

The language used is in accordance with our own holdings on the subject. Ammon v. Martin, 59 Ark. 191; Hatcher v. Buford, 60 Ark. 169; Lowe v. Hart, 93 Ark. 548; Harmon v. Harmon, 231 Ark. 501, and Gordon v. Clark, 149 Ark. 173.

It is equally well settled under these authorities that an acceptance may be implied where the gift, otherwise complete, is beneficial to the donee. It was also held in the case of Gordon v. Clark, supra, that where a gift causa onortis is made to one person for another, there is a presumption of acceptance where the gift is beneficial.

The evidence shows that at the time C. H. Greenway delivered the box containing the checks to his sister, and also at the time of his death, he had on general deposit in the First National Bank of Batesville $2,000, and also had there $2,000 on time deposit. His estate was solvent, and the money was not needed, to pay debts.

. It is earnestly insisted by counsel for appellants that a check can not be made the basis of a gift causa mortis. There is some conflict and confusion in the authorities on this question. But we think that the better reasoning and the trend of our own authorities, where the rights of creditors are not involved, is that when the delivery of the check is coupled with an intent to transfer a present interest in the money, and no revocation is attempted, the intent of the donor should be given effect, and that the donee has the right to the payment of the check after the death of the drawer as well as before. This is a part of the reasoning in Lowe v. Hart, 93 Ark. 548, although the precise point was not involved and was not decided. See also Gordon v. Clark, supra.

We think that the rule laid down in Morse on Banks and Banking (5 Ed.) vol. 2, par. 549, p. 198, to the effect that there may be a gift of a check causa mortis is the correct one. After saying that, in order to complete the gift, there must be such a delivery by the donor as to clearly indicate his intent to transfer the property from himself, and an actual transfer of the rightful control of the property, the learned author continues as follows: “But this, we contend, is done when he gives a cheek to the donee, or to another to give to the donee, and does not revoke before the delivery is made according to instructions. In this peculiar case of a check, the donor could revoke during his life; but as against the rest of the world it is a clear delivery of control of the money, and no one but the creditors of the donor have a right to object. They have a superior equity to the donee, but, if the donor is solvent, and continues in the same mind till his demise, what right has any one else to interfere with his clear intent? A bill of exchange may be the subject of a donatio causa mortis, and the death of the drawer of a bill does not operate to change the duty of the drawee to accept it; why should it be different in the case of a check? The rule that has grown up is a child of the error that the drawer’s death is a revocation of the bank’s authority to pay his checks, and should be banished with its parent. It does not seem sensible to say that a donatio causa mortis is a gift to take effect in case of death, and then to say that the donor did not intend it to be good unless it took effect before his death. And if he intended it to take effect after death, why not give life to his intent? If it is said that the formalities of the wills act must be conformed to in order to guard against fraud, then let the law be consistent, and deny the possibility of any gift causa mortis, by savings bank book, or any delivery, actual or constructive. If he had given bank bills, or the same money .that is on deposit in the bank, to some person, D, to keep, and in case the donor died to give it over to the donee, it would surely be held a good gift; in such case, it could not be properly said that the agent’s authority was revoked by his principal’s death, for it is clear that, instead of ceasing at the donor’s demise, it is then only that the agent’s authority arises. Where a donor delivered to B for the donee, it has been held that a delivery by B to the donee after the death of the donor is good. And if an agent’s authority does not always die with his principal, then is it not common sense to hold that a bank’s authority does not cease, at any rate in relation to checks that the donor delivered with the very intent that the fund should go to the donee in case of his death? The donor has a right to do with his property as he chooses, and his intent, clearly indicated, should be respected, and his personal representative has no right to frustrate his wish. The continuous progress of legal thought on this subject of gift points to the conclusion set forth above, viz., that, although a gift of a check cannot give an action against the donor himself, nor prefer the donee to creditors, yet it should be held otherwise good. And if the donor is solvent and does not revoke during his life, it ought, we think, to be good against the d^pnsii, and against his personal representatives when they have obtained possession of the deposit on which the check was drawn; for in this respect the theory that said personal representatives are identi-. cal with the deceased is groundless; any action they may take against the donee profits, not the deceased, but his heirs and legatees, and therefore the executor or administrator in reality represents said heirs or legatees, and as against them the donee has the superior equity.”

To the same effect see Varley v. Sims (Minn.) 8 L. R. A. (N. S.) 829; May v. Jones (Iowa) 54 N. W. 231; Phinney v. State, (Wash.) 68 L. R. A. 119; Murphy v. Bor dwell (Minn.) 85 Am. St. Repts. 454, and Mill v. Escort (Tex. Civ. App.) 86 S. W. 367, and cases cited.

Error is predicated upon the action of the court in giving certain instructions asked by appellees and re-fusing others asked by appellants. With regard to these assignments of error, we only deem it necessary to say that the instructions given -by the court are in accordance with the principles of law announced and approved in this opinion. The instructions asked by appellants were either not in accordance with the principles of law herein declared, or they were peremptory in their nature. Therefore, the assignments of error with respect to the instructions are not well taken.

Finally, it is insisted that the evidence is not sufficient to support the verdict. We do not agree with counsel for appellants in this contention. According to the evidence for appellees, O. H. Greenway had resided with his widowed sister, Mrs. Smith, for nine years prior to his death. He was a bachelor and thought more of his youngest brother, J. H. Greenway, than any of his other brothers. Here, then, is shown the motive for making the gift to his widowed sister and his youngest brother, but of course there must have been not only an intent to give, but also a deliverv of the thing given. According to the testimonv of Mrs. Smith, her brother gave her the box and told her to keep it and put it away where it would not get destroyed. After- he died, she opened the box in the presence of her daughter and took therefrom the checks, which are copied in our statement of facts, as well as some notes. On each check was indorsed the following: “This is the way I want this to go.” Bach check was drawn on the First National Bank of Batesville, Ark. One of them was for $2,000 payable to'the order of J. H. Greenway. The other was for a like amount and payable to the order of C. B. Smith. The checks were dated Nov. 25, 1919. Just a few days before this, C. H. Greenway’s physician told him that he was going to die and that there was very little probability of his getting well. It seems that he kept his checks in his own possession until about Christmas, when he gave them to his sister. He died the following April. There were also in the box which he gave to his sister two notes, and on one of them was the following notation: “Pay this note to J. H. Greenway. This is the way I want this to go, this way.” On the other note was the following: “This note will be paid to J. H. Greenway. I mean for him to have this note. ’ ’ The notations on the notes and checks signed by C. H. Greenway, when coupled with the other testimony, makes it fairly inferable that he intended to make a gift ccmsa mortis to his sister and youngest brother, when a box and its contents were ' delivered to her. He had been told that he was going to die, and signed the checks a few days thereafter. It is inferable that he became more thoroughly convinced of his impending death when he gave the box to his sister about Christmas. He did not check against either account after signing the checks. It has been aptly said that when a chattel or chose in action has been given causa mortis, possession delivered, and death has performed the condition subsequent on which it depended, no title whatever descends to the heirs of the donor, and his administrator has no right to the possession of the same for the purpose of administration.

Upon the authority of Lowe v. Hart, 93 Ark. 548, it is fairly inferable that there was an actual delivery of the checks to Mrs. Smith for her use and for J. H. Green-way’s use. An expectation of death at the time of delivery, the death of the donor following, the subsequent delivery of one of the cheeks to J. H. Greenway, and the presentation to the bank of the checks for payment after C. H. Greenway’s death, warranted the jury in finding for the appellees. In such a case, as we have already seen, the law implies an acceptance of the gift, although at the time the box was delivered to Mrs. Smith neither she nor J. H. Greenway knew what it contained. The circumstances under which it was delivered, however, indicate that there was something of advantage to her or some trust reposed in her of some kind by her brother, C. H. Greenway.

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


text:
    Robertson v. Collier.
    Opinion delivered March 6, 1922.
    Covenants — breach op warranty — liability op covenantor. — Where a vendor executed a deed with covenant of warranty to forty acres of land, when in fact he had no title to five acres thereof, he is liable to the purchaser for the consideration paid for the five acres.
    Appeal from Hempstead Chancery Court; James D. Shaver, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    Mattie Belle Smithey and her two daughters brought this suit against A. H. Andres and wife and Ed B. Collier for the purpose of reforming a deed made by A. H. Andres and wife to J. H. Smithey, deceased, who was the husband of Mattie Belle Smithey and the father of her two daughters.
    The complaint alleged that the five acres of land mentioned in the complaint was omitted from the deed by mistake, and that J. H. Smithey went into possession of the land and continued in possession of it until his death ;.'that Mattie Belle Smithey has been in possession of the land ever since the death of her husband.
    Ed. B. Collier was made a defendant to the suit because the record title was in him. Collier filed an answer in which he denied the material allegations of the complaint and filed a cross-complaint against W- J. Robertson and I. E. Robertson, his wife. As grounds of action, he stated that he had title to said land by a warranty deed executed to him by ~W. J. Robertson, and asked that, if the court should reform the deed executed to J. H. Smithey by said A. H. Andres, he should recover judgment against W. J. Robertson on his breach of warranty.
    According to the evidence of Mrs. Mattie Belle Smithey and her two daughters, on the 12th day of March, 1907, J. H. Smithey purchased the five acres- of land in controversy from A. 11. Andres. The reason for the purchase was that he owned an adjoining tract of land and bought the land in controversy to square up his north boundary line. He received a warrant}? deed from A. H. Andres and wife, but the land was ínisdescribed so as to place it in another subdivision, according to the United States land survey. J. II. Smithey went into possession of the land when he purchased it, and held possession of it as a part of his cultivated field until he died in May, 1918. He also paid the taxes on the land. Since his death, his widow and daughters have held possession of the land and paid the taxes on the same.
    According to the testimony of A. H. Andres, he sold to Smithey the land in controversy, and by mistake the deed described it as being in another section. Smithey took possession of'the land and held possession of it as a part of his field until he died. His widow and daughters have been in possession of it ever since.
    Other evidence tended to corroborate him, but, inasmuch as there has been no appeal from that part of the decree granting a reformation against A. IT. Andres in favor of Mattie Belle Smitliey and her two • daughters, it is not necessary to abstract the testimony on this point more at length.
    Ed. B. Collier was a witness for himself. According to his testimony, he purchased 67 acres of land in all from W. J. Bobertson and was to buy it at so much an acre, amounting in the aggregate to $6,400. Bobertson told him that he would get all of the forty in which the land in controversy is situated, except three acres out of the southwest corner. After Collier purchased the land he talked with Smitliey about running a line between them, but it was never done. After Smitliey’s death he had said forty acres of land surveyed and found that he only got possession of 29 acres. Nearly all of the land that he bought from Bobertson is cleared and under fence. The rest of the land is in an adjoining forty. He never learned that there was less than 37 acres in this particular forty until after the survey was made. He got thirty acres in an adjoining forty, which was also described in the deed.
    The deed from W. J. Bobertson and wife to Ed. B. Collier was introduced in evidence. It is dated Dee. 4, 1918, and recites a consideration of $6,400 cash in hand. The description in the deed is as follows: “All the SW 1/4 of the SW 1/4 of sec. 35, in twp. 12 S., B. 24 W. (except 3 acres in the southwest corner of same), being all of said tract of land north of the public road known as the Hope and Centerville public road; also, about 3 acres in the northeast corner of the NW 1/4 of NW 1/4 of sec. 2, twp. 13 S., B. 24 W., being all of that part of said tract of land lying north of the public road known as the Hope and Centerville public roads; also the following described land, to-wit: Beginning at the southwest corner of the SE 1/4 of SW 1/4 of said sec. 35, in twp. 12 S., B. 24 W., and run thence north 3 chains to a stake; thence east 20 chains to a stake on the east line of the said SE 1/4 of SW 1/4 of sec. 35; thence south 3 chains to a stake at the southeast corner of said SE 1/4 ohSW 1/4 of said sec. 35; thence west with the south boundary line of said section and township 20 chains to the point of beginning, containing 6 acres, more oy less; also the following tract of land, beginning at the northeast corner of the NE 1/4 of NW 1/4, sec. 2 twp. 13 S., R. 24 W., and run south 9 chains and 9 links to a stake at the northeast’corner of the parcel and lot of land deeded to P. A. Tharp on the 11th day of May, 1909; thence west with P. A. Tharp’s land line 15 chains to a stake at his northwest corner; thence south 3 chains and 50 links to a stake at the said P. A. Tharp’s southwest corner ; thence west 25 degrees north 6 chains and 6 links to a stake at the southwest corner of the land deeded to. one Jone L. Kelly by A. H. Andres and wife on April 2,1909; thence north 10 chains and 27 links to a stake 35 links west of the northwest corner of the N. E. 1/4, N. W. 1/4, sec. 2, twp. 13 S., R. 24 W.; thence east 20 chains and 70 links to point of beginning, containing 21 acres, more or less, and all the land conveyed by this deed, aggregating 67 acres, more or less.”
    The deed is in common form and contains a covenant of warranty as follows: “And we hereby covenant with said Ed. B. Collier that we will forever warrant and defend the title to the said lands against all.lawful claims whatever.”
    According to the testimony of W. J. Robertson, he sold a tract of land containing 67 acres, more or less, to Ed. B. Collier and received $6,000 for the place. Nothing was said about how much per acre he was to receive for the land. Robertson had purchased the land from R. N. Berry. Berry had purchased the land from Burt Tidwell, who had in turn purchased it from A. H. Andres. Robertson knew that Smithey owned some land adjoining the land he conveyed to Collier, but he did not represent to Collier that he had 37 acres in the forty-acre tract. He just sold Collier 67 acres, more or less, including what land he owned in this particular forty and in an adjoining forty-acre tract. '

      R. N. Berry and Bnrt Tidwell both testified that when they bought the land the strip of land in question was fenced and in the possession of J. H. Smithey.
    The chancellor was of the opinion that there should be a reformation in favor of the plaintiffs, Mattie Belle Smithey and her daughters, against A. H. Andres, so as to vest the title in them to the land in controversy.
    The chancellor also was of the opinion that Ed. B. Collier should recover from W. J. Robertson the value of said five-acre tract of land in the sum of $95.52 per acre, or the sum of $477.60 in the aggregate, with 6 per cent, interest per annum from the date of the execution of the deed to him from Robertson until paid.
    A decree was entered accordingly, and to reverse that decree W. J. Robertson and I. A. Robertson, his wife, have prosecuted an appeal to this court.
    No appeal was taken from the decree of the chancellor granting a reformation in favor of Mattie Belle Smithey and her daughter to the five-acre tract in controversy and investing in them the title thereto.

      J. D. Montgomery, for appellant.
    The Smithey parcel of land was included in the deed by mistake, as appellant laid no claim to this land. It is the policy of courts of equity to grant relief against, such mistakes. 121 Ark. 578; 50 Árk. 179; 144 Ark. 23; 96 Ark. 512.
    There was no breach of covenant or warranty as to the number of acres to be conveyed, and the appellee could not recover the value of any alleged shortage unless it was sufficient to amount to a material or gross mistake. 95 Ark. 375; 19 Ark. 102; 146 Ark. 223.
    The sale was in gross for a stipulated sum. and not a sale by the acre, and there was no misrepresentation or fraud, upon which appellee could recover. 112 Ark. 134; 95 Ark. 375; 71 Ark. 91.

      James H. McCollum, for appellee.
    Appellee is entitled to recover upon either of two grounds, viz., misrepresentation as to the quantity of ground owned by appellant, or the warranty contained in the deed.
    A chancellor’s findings will be sustained unless clearly against the preponderance of the evidence. 142 Ark. 73; 142 Ark. 104; 145 Ark. 247. '
    The difference in the amount of land conveyed and the amount received by appellee is too great, and he is entitled to relief on the ground of gross mistake. 19 Ark. 102; 100 Ark. 28; 61 Ark. 120; 142 Ark. 189; 101 Ark. 95; 141 Ark. 363.

      J. D. Montgomery, for appellant, in reply.
    Appellee has not shown that the land which he purchased — 67 acres more or less — is short to any material extent. 61 Ark. 120; 112 Ark. 134. He has contended for a shortage in only one 40-acre tract, whereas the whole number of acres conveyed should be taken as the basis for comparison as to whether or not there was such a material shortage as to amount to gross mistake.
   Hart, J.

(after stating the fasts). The court found that W. J. Robertson and I. A. Robertson by their warranty deed conveyed to Ed. B. Collier this same five acres of land, and that they did not have title thereto; that Ed. B. Collier had paid to W. J. Robertson the sum of $95.52 per acre, aggregating $477.60, for said five-acre tract of land. It was therefore decreed that he should recover this sum as damages for breach of warranty.

Counsel for W. J. Robertson seek to reverse the decree on the ground that Robertson sold to Collier 67 acres of land for the gross sum of '$6,400, and insist that the concluding part of the description in the deed shows that a shortage of five acres was not material. In other words, they claim that, the concluding part of the description, “and all the land conveyed by this deed aggregating 67 acres more or less”, implies that the acreage had been estimated, and that the words “more or less” were merely descriptive of the property conveyed.

The trouble about this contention is that counsel have not taken into consideration the description of the land by metes and bounds or by government subdivisions. It will be remembered that the theory of the appellees in filing their cross-complaint was not that Collier liad been induced to purchase the land 'by the false representations of Robertson in respect to the quantity which the tract contained.

The chancellor, who tried the case, granted the relief on the ground that Robertson had conveyed to Collier five acres of land, being the land in controversy, which he did not own, and that,, having executed a warranty deed to Collier, he was liable on his breach of warranty. The chancellor did not find that the actual quantity of land obtained by Collier was substantially less than lie supposed he was purchasing; but he found for him on a breach of warranty contained in the deed executed to him 'by Robertson. The parties are bound by their contract. The description in the deed from Robertson to Collier commences as follows: “All of the SW 1/4 of the SW 1/á of sec. 35, township 12 south, range 24 west, except three acres in southwest corner of same, being all of said tract lying north of the public road known as the Hope and Centerville public road.” The five acres in controversy, for which Mrs. Smithey was granted a decree of reformation, is included in the description just recited. Therefore, Robertson by his deed conveyed five acres of land to Collier which he did not own. He executed to Collier a warranty deed to said land, and is liable to Collier for breach of warranty. According to Collier’s testimony, he purchased the land at $95.52 an acre. It is true this statement is denied by Robertson, who testified the consideration was in gross, but the chancellor made a specific finding on this point in favor of Collier, and it'cannot be said that his finding is against the preponderance of the evidence.

The decree of the chancellor is correct, and will therefore be affirmed.


text:
    Shannon v. Western Union Telegraph Company.
    Opinion delivered March 6, 1922.
    Telegraphs and telephones — interstate message — damages for mental anguish. — The transmission of a telegram between two points in the same State over a customary route passing out of the State was an interstate message, so as to prevent the addressee from recovering damages for mental anguish because of negligence in the transmission, although it would have been physically possible to send a message over a route wholly within the State.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.
    STATEMENT OE PACTS.
    Pay Shannon, sued the Western Union Telegraph Company to recover for mental anguish caused by its negligence in transmitting a telegraphic message. The message, which was delivered to the plaintiff at Dardanelle, Ark., was as follows:
    “Lincoln, Nebraska, 11 A. M.
    “February 6th, 1921, 9-1 exa. Bush
    “Miss Fay Shannon, Dardanelle, Ark.
    “Tour father bad sick. Come at once. Answer.
    (Signed) J. A. Miller. 11:55 A. M.”
    The message should have been dated Lincoln, Ark. The plaintiff immediately wired J. A. Miller at Lincoln, Neb., that she .would leave on the first train for that place. She purchased a ticket for Kansas City, Mo., and proceeded on her way. While on board the train in the State of Kansas, she received a message from a friend in Dardanelle advising her that a mistake had been made in the telegram and for her to return to Lincoln, Ark. She immediately returned to Lincoln, Ark., but arrived there twenty-six hours later than she would have done had the mistake not been made. She suffered great mental anguish on account of the delay. She found her father seriously ill, and he died in a few days. She paid out in extra railroad fare the sum of $30. ■

      According to the testimony of T. D. Daniel, the chief operator of the Western Union Telegraph Company at Muskogee, Oklahoma, the message in question was received through his office. The message was sent from Lincoln, Ark., to Muskogee, Okla., and was relayed to Kansas City, Mo. From Kansas City, Mo., it went to Little Eock and from Little Eock, Ark., to Eussellville, Ark. It then was sent by telephone by the company from Eussellville to the plaintiff at Dardanelle. The message followed the established route of the company, which had been customary for a large number of years. The Western Union Telegraph Company has a line of poles from Lincoln, Ark., to Fayetteville, Ark., but it has no connection out of Fayetteville. It has a line of poles from the north running through Fayetteville to Ft. Smith, Ark., but there is no connection between the two lines. It also has wires on poles from Ft. Smith, Ark., to Eussellville, Ark., but they are cut out of the board at Eussellville. If the message had been sent from Lincoln, Ark., to Fayetteville, it would still have been transmitted to Muskogee and through Kansas City and Little Eock to Eussellville. There is no physical connection between Eussellville and Ft. Smith. The routings that are fixed and used for messages are for the purpose of facilitating or expediting the amount of traffic for the benefit of all the offices concerned, and also to save operating expenses. It was also shown by the manager of the Western Union office at Lincoln, Ark., that all messages from that place, except local business, take the route through Muskogee.
    The court directed a verdict for the plaintiff in the sum of $30, being the amount tendered to the plaintiff by the company. From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      John B. G.rownover, for appellant.
    The court erred in directing a verdict in favor of the defendant. 95 Ark. 561; 71 Ark. 447. The evidence was not sufficient to support the verdict. 76 Ark. 522; 73 Ark. 561; 82 Ark. 222; 89 Ark. 372; 63 Ark. 94; 77 Ark. 556; 36 Ark. 451; 35 Ark. 146; 62 Ark. 63; 84 Ark. 507.
    Damages should have been assessed under § 7947, C. & M. Digest.
    This was an intrastate message. 1 L. it. A. 232; 17 L. E. A. 443; Id. 646; 27 L. E. A. 843; 22 L. E. A. 570.

      Francis R. Stark, Calvin Sellers and Rose, Hemingtoay, Cantrell & Loughborough, for appellee.
    The message transmitted from Lincoln, Arkansas, through Oklahoma and Missouri, to Eussellville, Arkansas, over the customary route of the company, was an interstate message, and controlled by the case of Western Union Tel. Co. v. Speight, 254 TJ. S. 17; and no recovery for mental anguish could be had. See also, 240 U. -S. 612 ; 187 U. S. 617; 236 U. S. 568; 89 So. 299; 106 S. E. 507; 91 S. E. 158; 98 S. E. 645.
    Messages between two points within, but transmitted over lines passing without the State, constitute interstate commerce, and are subject to Federal control, and State laws must give way, whether such laws take the form of judicial decisions or -legislative enactments. Cooley’s Const. Lim. 7th Ed. p. 31; 5 E. C. L. 705, sec. 17.
    Decision of -all questions arising under the laws of the United States rests finally with the Federal court. Cooley’s Const. Lim. 7th Ed. p. 31; 5 E. C. L. 705
   Hart, J.

(after stating* the facts). The judgment was correct. It is true, as insisted by counsel for appellant, that the telegram w-as for transmission between two points within the State of Arkansas. But, according to the Federal decisions, we must look to the whole evidence to ascertain, by the act of its transmission through other States by several relays, if it was an act of interstate commerce.

In the recent decision of West. Union Tel. Co. v. Speight, 254 U. S. 17, it was held by the Supreme Court of the United States that the transmission of a telegram between two points in the same State over a route passing out of the State was none the less an interstate message, so as to prevent the plaintiff from recovering damages for mental anguish because of negligence in the delivery, although it would have been physically possible to have sent the message over a route lying wholly within the State. In that case the message was from Green-ville to Rosemary, both in the State of North Carolina, and it was transmitted through the State of Virginia through relay offices there. This was the route ordinarily used by the company for years. The court said that the transmission of a message through two States is interstate commerce as a matter of fact, and that the fact must he tested by the actual transaction. The court further said that the course adopted was more convenient and less expensive for the company, and there was nothing to show motives except the facts. It also said that the message was sent in the quickest way.

The facts in the present case are in all essential respects precisely similar to the facts in that case, and it is our duty to follow the decisions of the Supreme Court of the United States in the construction of the interstate commerce act passed by Congress. The ruling of the trial court was in accord with the rule announced by the Supreme Court of the United States, and damages for mental anguish are accordingly not recoverable.

Therefore the judgment will he affirmed.


author: Smith, J.

text:
    Stephenson v. Lewis.
    Opinion delivered March 6, 1922.
    1. Depositions — transmission to clerk — presumption.—Undei Crawford & Moses’ Dig., § 4236, requiring depositions to be sealed up and delivered or mailed to the clerk, where depositions were taken by defendant’s attorney unsealed and delivered to the clerk, they are prima, facie inadmissible, and, in the absence of an affirmative showing that their integrity had been preserved, will not be admitted in evidence.

      2. Witnesses — husband and wipe. — Testimony of defendant’s wife as to a conversation’ between plaintiff and her husband was incompetent.
    3. Landlord and tenant — lien.—Where a lease stipulated that the landlord should receive a proportion of the crop grown and a money rent on lands not cultivated, the contract is an entire one, and the lien of the landlord exists on all of the crops to secure all the rent.
    Appeal from Woodruff Chancery - Court, Northern. District; A. L. Hutchins, Chancellor;
    reversed.

      R. M. Hutchins, for appellant.
    The depositions of appellee and his wife were both •inadmissible because not transmitted by the notary to the clerk in the manner provided by statute. 115 Ark. 448; 99 Ark. 265; C. & M. Digest, § 4236. The statute is mandatory. The deposition of -appellee’s wife was inadmissible in any event, as she was incompetent, to testify for her husband in a suit between her husband and a third party. Witham v. State, 149 Ark. 324.
    Appellee has not overcome the burden of showing the abrogation of the written contract, by a fair preponderance of the evidence. 13 C. J. 762; Id. 780.
    The doctrine of estoppel relied upon by appellee does not apply in this case.

      Harry M. Woods, for appellee.
    The deposition of appellee was properly admitted, as after a hearing the chancellor found that the purpose of see. 4236, C. & M. Digest, had not in this case been defeated. 115 Ark. 453.
    Appellee concedes that the deposition of Mrs. Lewis was improperly admitted, but there is ample evidence without this to support the decree.
    Appellant by his actions is estopped to demand of Lewis any greater amount of rent than he represented that Lewellen would be required to pay.
   Smith, J.

Appellant-Stephenson was-the plaintiff below, and brought this suit in equity to enforce his lien as a landlord against the proceeds of certain cotton received and sold by appellee Lewis (defendant below) wbo is a merchant, and who furnished Lewellen, the tenant, the money and supplies to make the crop grown during the year 1920 upon the demised premises. The parties occupied the same relations to each other during the year 1919, except that the rental contract for that year provided for an agreed share of the crop. Stephen-' son testified that Lewellen failed to cultivate a portion of the land in 1919, and he therefore changed the 1920 contract on that account to provide for an agreed share of the cotton and corn and for $8 per acre rent on any land not cultivated by the tenant. Lewis carried over a large indebtedness due him by Lewellen during the year 1919, and there is a sharp conflict between his testimony and that of Stephenson as to the terms of the 1920 rental contract. Lewis testified that he refused to advance Lewellen until after Stephenson had modified the rental contract to make it the same as the 1919 contract had been, that is, that the rent should be only an agreed share.

The deposition of Lewis’ wife was taken, and she testified that she heard the negotiation between Stephenson and her husband and corroborated her husband as to the modification of the 1920 contract. A motion was made to suppress this deposition upon the ground that Mrs. Lewis, as the wife of the defendant, was incompetent to testify; but this motion was overruled.

There was a motion to suppress the deposition of Lewis himself and that of his wife, upon the ground that the notary public who took the depositions gave them to defendant’s attorney, who took them, unsealed, and delivered them in that condition to- the clerk of the court. The order of the court made on the hearing of this motion recites the admission of the attorney for the defendant' that the depositions had been transmitted by him and delivered unsealed to the clerk. The motion to suppress was overruled; but it does not appear what showing, if any, was made to warrant the order. In the absence of an affirmative showing that the integrity of the depositions had been preserved, the depositions were prima facie inadmissible. Section 4236, C. & M. Digest, directs how depositions shall be directed and forwarded to the cleric of the court in which they are to be read. The action of the attorney in delivering these depositions to the cleric unsealed was in violation of this statute and rendered the depositions prima facie inadmissible; and there appears in the record no showing which removes this presumption. St. L. I. M. & S. R. Co. v. Webster, 99 Ark. 265; Mo. & N. Ark. Rd. Co. v. Johnson, 115 Ark. 448.

It is conceded that the deposition of Mrs. Lewis is incompetent, and that the court should have excluded it; but it is insisted that the competent testimony in the case sustains the finding made by the court below that the complaint was without equity. This is not true, for, with the deposition of Mrs. Lewis suppressed, as it must be, and in the absence of a showing validating the deposition of Lewis himself, the decree is without evidence to support it and must therefore be reversed.

In view of the reversal which must be ordered, we take occasion to announce the law applicable to the only question of law which appears to be involved in the decision of the case upon its merits, and that is, the extent of the landlord’s lien.

Before the crop was gathered, the tenant abandoned it. Stephenson at the time claimed a balance on rent of $238.48. Stephenson gathered the remainder of the crop and applied the proceeds thereof, amounting to $62.51, to his demand, and sued for $175.97, the balance due after this credit was allowed. Lewis admits that he received cotton of much greater value than this balance claimed.

This balance is claimed as rent upon the land which the tenant did not cultivate pursuant to the written contract of tenancy to that effect. As has been said, Lewis claims this contract was modified so as to provide that the rent should consist wholly in an agreed share of the crop, and that the provision for the payment of money rent on lands not cultivated was expressly abrogated. If the court should find the facts thus to be, then the finding and decree should be for the defendant, as it is admitted that Stephenson was given his share of the proceeds of the crop actually produced. Few v. Mitchell, 80 Ark. 243.

But what about the claim of a lien on the crop which was grown for the rent due on the lands which were not cultivated? Our answer to this question is that the hen of the landlord exists on all the crops to secure all the rent. The statute provides that every landlord shall have a lien upon the crops grown upon the demised premises in any year for rent that shall accrue for such year. Sec. 6889, C. & M. Digest. The contract was an entire one. The rent reserved was an agreed share of the crop grown on the lands cultivated and money rent for the remainder of the land. The lien as certainly exists to secure the payment of money as it does to secure the payment of an agreed share of the crop, and the statute gives a lien upon all the crop for all the rent.

In the case of Von Berg v. Goodman, 85 Ark. 605, a tenant agreed to make certain repairs on the demised premises as part of the rent. The tenant failed to make the repairs, and this court held that the landlord had a lien on the crop for the value of those repairs. It was there said: “But, as it (cost of repairs) was.in fact stipulated for as a part of the rent, we hold that a lien existed for that as well as for the value of the part of the crop stipulated in the contract. * * * * The parties cannot put into the contract that which is not rent and by calling it rent create a lien on the crop for the amount (Roth v. Williams, 45 Ark. 447); but, if it is in fact a part of the rental price, its character as such is not changed because the liability therefor attaches upon the happening of some contingency, such as the failure to make repairs.”

It is true the repairs in that case constituted a part of the rent for the whole of the demised premises; but the case is express authority for our holding that the claim for money rent is not defeated because liability therefor attached upon the happening of the contingency contracted against — the failure of the tenant to cultivate a portion of the land. The money to be paid in this contingency was made a part of the rent and furnished a part of the entire consideration for the whole of the land demised.

In 2 Wood on Landlord & Tenant, p. 1032, it is said: “But, if an entire rent is reserved, although it is in a subsequent part of the lease distributed to each tenement in several distinct sums, each tenement is charged with the whole rent. ’ ’

The case of Thompson v. Mead, 67 Ill. 395, is a case directly in point. The law of Illinois giving liens to landlords appears to be identical with the law of this State, except that, instead of reading that “every landlord shall have a lien upon the crop grown upon the demised premises, * * * * ” as the law of this State reads, the law of that State reads that “every landlord shall have a lien upon the crops growing or grown upon the demised premises.” This difference is, of course, unimportant in its application to the point now under consideration. The tenant in the Illinois case, agreed to pay as rent one-third of the crop raised, payable when the same should mature. The crop grown was a corn crop. A house on the same land was rented at the same time for $4 per month, payable in money. Rent was paid on the land, but not on the house, and a lien was claimed on the crop for this rent. The court said: “The proof was, the premises were an entirety — a part of one farm — and, though the rent of the house was payable in monejq the law gave to the landlord a lien on the corn, or other crop, growing on the same premises.” After the third of the corn called for by the rental contract had been given the landlord, a creditor of the tenant attached the balance of the crop for debt, and the trial court told the jury that “although a landlord might distrain for any rent due for any premises upon crops grown upon any other premises, or any other property of the tenant, yet he has no lien upon crops grown upon certain premises except for rent due for said particular premises; and, unless the landlord has a lien upon a crop, he stands in no better condition than any attachment or execution creditor, and, as between him and such creditor, priority of levy gives precedence.” This instruction was condemned in the following language: “This is so different from the first instruction given for plaintiff, that it seems irreconcilable with it, and must have misled the jury, and was not proper, in itself, on the facts of this case. Each and every part of the premises demised was subject to the lien for the rent of any one part, and the preference of the landlord does not depend on the levy of a distress warrant, or any proceeding. The law creates the lien, and from its very nature, and under the statute, must have precedence unless it has been waived, or the landlord been guilty of laches, neither of which was, or could be, set up in this ease. There was but one contract, but one demise, and of one premises. The lien of the landlord covered each and every part of the crops growing- upon it.”

What was there said is applicable here. If the written contract was not modified, the rent payable in money was as much a part of the rent as any other part, and is secured by the lien given by law to the landlord to secure payment of the rent which accrued for the year for which the premises were demised.

The decree of the court below is therefore reversed, and the cause remanded for a new trial.


text:
    Pride v. Gist.
    Opinion delivered March 6, 1922.
    1. Taxation — time of filing list of delinquent lands. — Crawford & Moses’ Dig., § 10082, requiring the collector to file with the clerk “by the second Monday in May in each year” a list of delinquent lands, is mandatory and jurisdictional; and failure to file such list within time renders void the sale for the taxes of that year.
    2. Taxation — time to sue tax claimant. — Crawford & Moses’ Dig., § 10119, providing, inter alia, that actions to avoid tax sales “shall be commenced within two years from the date-of sale,” does not apply to jurisdictional defects, such as the failure of the collector to file the list of delinquent lands “by the second Monday in May in each year.”
    3. Taxation — adverse possession of tax land — limitation.—Crawford & Moses’ Dig., § 6947, providing that no action for the recovery of lands sold for taxes “shall be maintained unless it appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the lands in question within two years next before the commencement of such suit or action,” where there was a conflict as to whether defendant’s possession had been continuously adverse, it was error to direct a verdict for the defendant.
    Appeal from Little River Circuit Court; James 8. Steel, Judge;
    reversed.

      A. D. DuLaney, for appellants.
    1. The tax sale of 1915 is void. Under the statute, C. & M. Digest, § 10082, the collector must verify the delinquent real estate list and file it with the clerk by the second Monday in May in each year. In this instance that was not done. 84 Ark. 569 Id. 423.
    2. The court was not justified by the evidence in charging the jury to the effect that appellant was barred by the two-years statute of limitation. To effect a bar, the possession under the tax deed must have been actual and adverse. 67 Ark. 412; 77 Id. 326; 84 Id. 43; 109 Id. 286; 57 Id. 527.

      Johnson & Shaver, for appellee.
    1. The irregularity as to the date when the collector verified and filed the delinquent list, is one which cannot be asserted after the lapse of two years from the date of purchase from the State. C. & M. Digest, § 10119. It is not a jurisdictional defect such as would be prejudicial and misleading to the landowner. 46 Ark. 96; 86 Id. 32.
    2. Appellants are barred under the provisions of C. & M. Digest, § 6947. 1 O. J., Adverse Possession, p. 55; Id. §§ 61, 62; 77 Ark. 326; 84 Id. 140; 76 Id. 447; 58 Id. 151; 59 Id. 460; 67 Id. 411; 71 Id. 390; 75 Id. 514; 195 B. W. (Ark.) 673.
   Smith, J.

Appellants sued in ejectment to recover an eighty-acre tract of land described in the complaint. They acquired the original title to said land on the 30th day of May, 1919, but prior thereto, to-wit, on May 7, 1919, appellee had purchased said land from the State and had received from the State Land Commissioner a tax deed therefor. This tax deed was based upon a sale for the taxes of 1915 made in June, 1916; and it is stipulated that the collector of taxes did not file the delinquent list of that year with the clerk of the county court until May 19, 1916. The law required that “the collector shall, by the second Monday in May in each year, file with the clerk of the county court a list or lists of all such taxes levied on real estate as such eollecter has been unable to collect.” Sec. 10082, C. & M. Digest.

In the case of Boles v. McNeil, 66 Ark. 428, Judge Battle said: “Taxpayers are allowed by the act of March 28th from the first Monday in January to the tenth day of April in each year to pay taxes on all classes of property without penalty. After that time the collector may distrain to pay taxes on personal property, which have not been collected, and a penalty of twenty-five per cent, thereon, and may make out a list of the real property on which the taxes have not been paid. He is required to file such list by the second Monday in May of each year. Owners of land may pay taxes thereon at any time before the list is filed, without paying a penalty, but there is no duty upon the collector to keep the taxbooks open for that purpose after the tenth day of April. He can file a list of the lands on which the taxes have been collected at any time after the tenth of April, and On or before the second Monday in May.”

We think the provision requiring the delinquent list to be filed 'by the second Monday in May is mandatory and therefore jurisdictional; and the failure to file the list for the year 1915 by that time renders void the sale for the taxes1 of that year. Quertermous v. Walls, 70 Ark. 326; Boyd v. Gardner, 84 Ark. 567; Martels v. Wyss, 123 Ark. 184; Oliver v. Scott, 117 Ark. 275.

It is insisted, however, that the right to7 recover possession of the land does not follow an adjudication that the tax sale was void, for two reasons. First, that the cause of action is barred under section 10119 of C. & M. Dig-est; second, that the cause of action is barred under section 6947, C. & M. Digest.

■Sec. 10119, 'O. & M. Digest, provides that “all actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this chapter, in the assessment, appraisement, levying of taxes or in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this chapter, or irregularity or neglect of any kind by any officer having any duty or thing to perform under the provisions of this chapter, shall be commenced within two years from the date of sale, and not afterward. ”

This suit was instituted May 31, 1921, and it is apparent that more than twa years had elapsted' prior to its institution since the date of the tax sale. It is apparent also that two years and twenty-four days had elapsed between the date of the tax deed and the institution of this suit.

The court below charged the jury that “this lawsuit must be brought within two years from the date of the deed of Mr. Gist (the defendant), and in this case they did not bring this suit within those two years, and because of that fact the statute of limitations bars them from bringing it,” and upon that ruling the court instructed a verdict for the defendant, from which is this appeal.'

It has been several times held that § 10119, C. & M. Digest, does not apply to jurisdictional defects; and as we hold herein that the requirement of the statute, that the delinquent list be filed by the second Monday in May, is jurisdictional, it follows that section 10119 has no application to a suit raising that question. Hewett v. Ozark Lime Co., 120 Ark. 528; Radcliffe v. Scruggs, 46 Ark. 96; Taylor v. VanMeter, 53 Ark. 204; Townsend v. Martin, 55 Ark. 192; Ross v. Royal, 77 Ark. 324.

Section 6947, C. & M. Digest, reads as follows: “No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs or assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or Commissioner of State Lands, Highways and Improvements, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any act providing for the sale of lands forfeited to the State for nonpayment of taxes, or who may hold such lands under the donation deed from the State, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the lands in question within two years next before the commencement of such suit or action. ’ ’

Under this section two years actual adverse possession under the tax deed would bar the action of the owner of the original title to recover the land; but the testimony is 'by no means undisputed that defendant had possession for that length of time; indeed, appellants insist that there has never been anything except a few fitful acts of possession, between which acts there was no continuity to make the possession continuous. This is, of course, a question of fact, and therefore a question for the jury; but, as has been said, the question was not submitted to the jury.

This section of the Digest has been construed by this court in numerous cases, and the character of possession required to give the holder of the tax deed immunity from suit by the owner of the original title is well defined and need not be repeated here. See following cases: Chicot Lbr. Co. v. Dardell, 84 Ark. 140; Wagner v. Head, 94 Ark. 490; Woolfolk v. Buckner, 67 Ark. 411; Boynton v. Ashabranner, 75 Ark. 421; Carpenter v. Smith, 76 Ark. 447; Ross v. Royal, 77 Ark. 324; Kennedy v. Burns, 140 Ark. 367; Radcliffe v. Scruggs, 46 Ark. 96.

The judgment of the court below will therefore be reversed, and the cause remanded for a new trial.