text:
    Simpson v. Teftler.
    Opinion delivered April 16, 1928.
    1. Elections — time for holding. — When the Legislature names the day on which an election .shall be held, holding the election on any other day is unauthorized, and the election so held is void,
    2. Elections — authority of legislature. — The Legislature alone has authority to provide for an election, and any election held without authority is void.
    3. Elections — time of holding, — Where -the time of holding an election is fixed by statute, the election officials have no authority to change the date, such provision being mandatory.
    4. Elections — submission of measure to peo>plb. — Acts 1925, p. 324, providing for a stock law effective from the date of the order of Monroe County Court after approval by a majority of the voting electors, violates the provision of" the constitutional amendment for 1920, that no measure shall be submitted to the people by the General Assembly except proposed constitutional amendments.
    5. Statutes — curative acts. — The Monroe County Stock Law, Acts 1925, p. 324, being a local law, an election held thereunder on a different date from that specified therein was not validated by Acts 1927, p. 227, validating irregular “no-fence” law elections, since the Legislature, being prohibited from passing local acts by constitutional amendment (Acts 1927, p. 1215), cannot make effective a void local act theretofore passed.

      Appeal from Monroe Circuit Court; W. J. Wag-goner, Judge;
    reversed.

      X. O. Pindall, Peyton D. Moncrief, A. G. Meehan and John W. Moncrief, for appellant.

      S. S. Jefferies, for appellee.
   Mehaffy, J.

In 1925 the Legislature passed an act to provide a stock law and to regulate the operations of the same in Monroe County, Arkansas. Section 1 provides for the establishment of the district, embracing the whole of Monroe County, and § 2 makes it unlawful for the owner or manager of the stock described to permit said stock to run at large beyond the limits- of his own land or lands leased, -occupied or controlled by him within the territory -of Monroe County. Section 3 provides for impounding the stock, giving notice, and for the sale of the property and for the charges for keeping. It also provides, in addition to the charges for keeping the .stock, that the owner ,be liable for all damages committed by the stock while running at large. Section 4 provides that the owner permitting the stock to run at large shall be guilty of a misdemeanor, etc. Section 6 is- as follows:

“On Wednesday, the first day.of April, 1925, there shall be held an election at the usual voting places in the various townships in Monroe County, at which election there shall be submitted to the landowners of Monroe County the question of ‘For stock law’ and ‘Against stock law,’ at which election persons shall be eligible to vote as hereinafter provided.”

The act then provides- for the sheriff.giving notice of the election; and also provides for the election commissioners to appoint judges, and the judges -are required to take, the oath as in the general election laws. The act also provides that the election commissioners, not later than 10 days -after the election, shall proceed to ascertain and declare the result of said election, and within 15 days after the date of the election shall file in the office o'f the county clerk of said county a certificate, and in the event a majority of the voters vote for the 'stock law, the county court of Monroe County shall, on the first day of its July term, 1925, enter an order upon the county court records' of said county, declaring the act adopted and in full force and effect. And it is further provided that this act shall, from and after the date of said order of said county court, to-wit, the first Monday in July, 1925, take effect and be in full force and effect.

There was no emergency clause, and the act could not take effect until 90 days after the adjournment of the Legislature, which was the 12th day of March, 1925. No election was held on April 1, 1925, but an election was held on the 11th day of August, 1925, and the county court acted upon the report of the commissioners on the 5th day of October, 1925.

The appellant, whose hogs had been impounded, brought a suit in replevin to recover four head of hogs that had been impounded. There was a verdict against appellant, motion for new trial was filed and overruled, and the appeal is prosecuted to this court to reverse said judgment.

There was no effort to enforce the stock law in Monroe County until after passage of act 84 in 1927. Act 84 is an act to validate special elections held for creation of no-fence laws, and it provides that all elections heretofore held in the State of .Arkansas where the question of the creation of no-fence law or stock law has been submitted to the vote of either the electors of said no-fence district or the landowners of said district, as prescribed by said acts, where the majority of the voters in said elections voted in favor of said law, notwithstanding the fact that said elections so held were irregular by reason of same being held on a different day from the day named in said acts or other causes, that said no-fenee law or stock law be, and the same are hereby declared to be, valid, effective and binding, and shall be in force and effect from and after the passage of this aot as if said elections were held in strict conformity with the law creating the districts.

The first question to be determined is whether the election held on August 11, 1925, was void, the act requiring the election to be held on the first day of April, 1925.

■ When the Legislature fixes the time, names the day on which an election shall be held, said election must be held on that day. The holding of an election on any day other than that named by the Legislature is not authorized, and the election is void.

“For the purpose of organizing the system of government hereby established and putting the same into operation in the first instance, the selectmen of the town of Fall River, for the time being, shall, within -30 days after the- acceptance of this act, issue. their warrants, seven days at least previous to the day so appointed for calling a meeting of said citizens, at such place and hour, as they may deem expedient, for the purpose of choosing a warden, clerk, and inspectors for each ward, and all other officers whose election is provided for in the preceding sections of this act. The selectmen issued their warrant, warning the electors to hold their first meeting, under the statute, for the choice of ward and city officers, and for the election of a ■county treasurer. It was held by the Supreme Court that, as to the office of county treasurer, the election was illegal and void.” Paine on Elections, 268.

“But statutes prescribing the days for holding an election are generally mandatory, and elections held on different days will be void. * * * Where it is provided by law that an election shall be held within 50 days after the presentation of the petition therefor, an election held after the expiration of the 50 days will be void. ’ ’ Paine on Elections, § 310.

“It is, of course, essential to the validity of an election that it be held at the time and in the place provided by law.” McCrary on Elections, 4th edition, 153.

Again, it is said in § 176 of McCrary on Elections: “It must be conceded by all that time and place are of the substance of every election, while many provisions which appertain to the manner of conducting an election may be directory only. ’ ’

‘ ‘ Those provisions of a statute which affect the time and place of the election and the legal qualifications of the electors are generally of the substance of the election, while those touching the recording and manner of conducting the mere details of the election are directory.” McCrary on Elections, 228.

This court said, in deciding when a law went into effect:

“No public act shall take effect, or be in force, until ninety days from the expiration of the session at which the same was passed; and consequently the act did not take effect, and was not in force., until ninety days after the 10th of April, 1869; so that, in fact, on the 3rd of November, 1868, ten months before the act took effect, when, it is claimed, an election was held and a majority vote taken in favor of railroads, the act authorizing the same was not in force; and if not, then the election was held without authority of law, and was void. ’ ’ State v. Little Rock, Mississippi River & Texas Ry. Co., 31 Ark. 701.

The Legislature alone had authority to provide for an election, and any election held without authority is a nullity.

“It is-claimed by plaintiff that the ordinance under question by its own terms could not have taken effect until the 11th day of March, and that no step could have been legal under it until that time. That by its terms the election, even if legal, could not be held until 30 days after the 11th of March, or until the 12th of April, instead of the second of April, as the day for election; it was an impossibility which could not be accomplished, and therefore any action held under it was void.” Hensley v. Hamilton, 2 Ohio Circuit Decisions, 114

“When therefore the day of election for town officers was changed by law, we are of opinion the law necessarily changed the day for the election of trustees. The change followed as a logical result. The provisions of acts 1867 and 1869, when considered with the Constitution and the township organization law, clearly lead to this conclusion.” Kelley v. Cabu, 112 Ill. 23, 1 N. E. 167.

In the above case the town had held two elections, but by the general law it was provided that the election for officers contemplated by this act shall be held on the second Tuesday in April. The important question in the case was whether the election held on the first Tuesday in April was held on. the day provided by law. Prior to the act under discussion by the court there had not been uniformity, elections in some places being held on one day and others on a different day, but the court held the day named for the election was the only day on which an election could be held.

The Kansas court said:

“And, having fixed the time within which such an election must be held, it seems to us it intended that compliance with this requirement should be essential to its validity. It may perhaps be worthy of notice, though only a slight circumstance, that the requirement of notice and the limitation of 50 days are both in the same section and couched in the same terms of obligation. The publication of notice comes plainly within the decision in 1 Kansas 273, as essential to the validity of the election. Does it not seem reasonable that the Legislature intended that both should be essential? We are led to the conclusion that the district court erred in its ruling, and the case will be remanded with instructions to reverse the order refusing a temporary injunction, and proceed further in accordance with the views herein expressed.” Gossard v. Vaught, 10 Kansas 162.

In Missouri an election was held to remove a county seat, and the order for an election was made upon the 5th day of April, calling the election for the 14th day of June following, a space of 70 days. The Court said:

“The commissioners had the power, upon the establishment of the fact that three-fifths of the legal voters of the county so petitioned, to order an election to decide the matter of the removal of the county seat from one point and its location at another; but such election they must cause to be held within fifty days from the establishment of such fact, and in time to afford thirty days notice of the election. The right to order being thus circumscribed, the board could only so proceed, unless, as is suggested, the time prescribed was simply in the nature of a direction, and not a mandate. As has been frequently decided by this court, when the language-of a statute is plain, its intention must be deduced from such language, and the court has no right to go beyond it. * # * 'So here the commissioners, ‘within fifty days thereafter shall cause an election to be held.’ It would be straining the meaning of words to say that the natural, ordinary interpretation of such language was that, -sometime within fifty days, the commissioners should order an election to be held at any future time their discretion or caprice might dictate; and yet this is the conclusion urged by counsel for defendants, in substance. He claims that, jurisdiction once acquired by the presentation of the petition, the subsequent order in the case at bar was what the statute contemplated, or at most an irregularity. * * * When the Legislature has said to this board of special limited powers, You shall cause an election to be held within a certain time, who shall say that the matter of time is immaterial? The intention may have been to protect the petitioners; for, if the construction urged be adopted, the board could place the election at such a distance of time as to- render the order a practical nullity; and there would then be no redress, as that would be simply an error under the regular pursuit of authority, not subject to review by this or any other court; or the intention may have been something other, or for multiple purposes; but there stands the plain language, and it should not be frittered away.” State v. McGinnis, 6 Nev. 101.
“After the passage of this act, the general election, by the new Constitution, was changed to November; and it is now insisted that the true interpretation of the act fixed this election to be holden annually, at a general election. We put a different construction upon, the provision. The word ‘general’ was merely descriptive of the election, the time of holding which was fixed on the ‘first Monday in Angust,’ 1847, ‘and every year thereafter,’ which would fall again on the first Monday of August succeeding. Had it been the intention of the Legislature to make the-‘general’ election day the time, instead of the (first Monday in August,’ the date of the month and the day of the week may well have been omitted, without leaving the least ambiguity, in case'of any change in the laws; or the same thing would have been accomplished by repeating the terms, and at the ‘general’ election ‘every year thereafter.’ * * * Much additional technical verbiage might have been added, the proofs could not have been enlarged, nor essential facts multiplied. He would have a right to show that the election had not been held by persons authorized to hold it, or that proper returns had not been made, evidencing and declaring that election.” The People ex rel. Dixon v. Shaw, 14 Illinois Rep. 476.
“By the Constitution (art. 10, § 2), the power of fixing the times for the election of county officers is vested in the Legislature. When a time has been so fixed, any election held at a different time is unauthorized and void. The act of April 18, 1870, having repealed all prior laws on the subject, its first section contains the only provision fixing the time for the election of county auditors. The single question in the case therefore is, what time does that section fix for the election? * * * fiayg plainly fixed the election on the second Tuesday of October, 1871. It is therefore useless, and it would be going out of the case, and in effect deciding the rights of parties not before us, to inquire whether the Legislature had the constitutional power to prolong the .old terms of office. Whether they had or had not -this power, they have fixed the election for October, 1871. And we can see no force or logic in the argument by which it is attempted, first, to strike from the section the words of the proviso prolonging the term,' and then, by a literal rendering of the remaining words of the section,, by themselves considered, to determine the time fixed for the election. This would be to mutilate the ‘section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. * * * The meaning of the Legislature must be gathered from all they have said, as well from that which is ineffective for want of power as from that which is authorized by law. Read in this way, the meaning of the section admits of no controversy. It fixes the election on the second Tuesday of October next preceding the expiration of the term as so prolonged, which will be the second Tuesday in October, 1871.” State v. Dombaugh, 20 Ohio 167.

The act in question fixes the date of the election on the first Monday in April. The meaning of this admits of no controversy. The Legislature had the power, in fact it was the only branch of the government that did have the power, to fix the date, and it fixed the date so that there can be no question about it. And elections must be held on the day fixed by law, and those elections held at other times, at times not fixed by law, are void. The Legislature fixes the time for the election-of State and county officers. The Legislature only can change that time. The law fixes the time for primary election in Arkansas. If no election was held on that day, would it be contended that the sheriff could give notice of an election three of four months thereafter, or any time thereafter?

This.court said, in-a case in replevin for possession.'of hogs: “The point in the case is whether the statute in question was ever put in force in the territory where appellant’s hogs were found running at large.

“The act provides for submission to the voters, either at a special or general election, of the question whether or not it shall be put in force in the given territory, and that, if it shall appear that a majority of the votes cast on the question are in favor of the law, it shall be the duty of the county court or county judge to make and enter an order declaring the law to be in force in the territory. * * * The question of adopting the statute was submitted to the voters of Hempstead County at the general election in 1902, again at the general election in September, 1904, and at the presidential election in November, 1902, but did not receive a majority of the votes on the question at either of these elections. It was again voted on at the general election in 1906, and received a majority of the votes, whereupon the county judge made an order declaring the statute to be in force in the territory named.

“It seems clear to us that the statute contemplated a submission of the question to the voters at a special election to be called by the county judge, or, in the event of his failure to call the election, that it be submitted finally at the next succeeding general election for State and county officers. The language of the statute does not reasonably admit of any other construction. It says that, “in the event such special election be not ordered and held prior to the next general election for State and county officers, the question shall then be submitted to the electors.” * * * Therefore it cannot be presumed that the Legislature intended that the question might be submitted every time and as often as the election commissioners might see fit to print the question on the tickets at a general election.

“It was doubtless within the power of the Legislature to provide for resubmission of the question of adoption of the statute by the voters, but a consideration of the language of the statute convinces us that such was not the intention.” Hood v. Bell, 86 Ark. 366, 111 S. W. 801.

“But the specification of time in a statute may be imperative and may operate as a limitation upon the power of those who are to act under it. This will depend upon the intention of the Legislature; and an intention to make time of the essence of the thing to be done may :be disclosed either by the express language of the law or by necessary implications from its terms.” Black on Interpretation of Laws, 2 edition, 547.

It may be conceded that the authorities are not in entire harmony on the question whether the provision in the statute fixing a day for an election is mandatory or directory. Some courts have held that it is directory.

Appellee calls attention to an Oklahoma case which holds that the provision in the statute is directory. In that case, however, it was' impossible to hold the election on the day fixed by the statute. Board of Directors of School District 27 of Okla. County v. Board of Excise of Okla. County, 31 Okla. 553, 122 Pac. 520.

Appellee also calls attention to the same case in Annotated Cases 1913E, 639, and calls, attention to the note dealing with various phases of elections held on the wrong date. But the notes referred to state that the statutory provision as to the time for holding an election is ordinarily mandatory.

Appellee also calls attention to 9 R. C. L. 998, and quotes from § 19, on page 998. But the section quoted from begins with the announcement of the general rule as follows: “It may be stated as a general rule that the election of a person to an office at a time not authorized by law is void.”

The section also contains the following: “From these decisions the rule may be deduced that, where the date of the election is not left to the determination of the officials, but is unequivocally fixed by statute, the election officials have no authority to change the dh'te. In other words, such a statutory provision is ordinarily to he regarded as mandatory. ’ ’

The same section also contains the following statement: “And so it has been frequently held that, where an election is not held within the time limited, it cannot be held afterwards, and, if so held, is void.”

While there is authority for holding the statute fixing the day of election as directory, the weight of authority, and, we think, the better rule, is that such provisions are mandatory.

Another question discussed by counsel is whether the Legislature had authority to submit the question to the people. The constitutional amendment adopted in 1920, before the passage of the act, contains, among other things, the following: “But no measure shall be submitted to the people by the General Assembly except a proposed constitutional amendment or amendments as provided for in this Constitution.”

Appellee contends that the Legislature had authority, and states that the identical question was brought before this court in Lemaire v. Henderson, 174 Ark. 936, 298 S. W. 327. The court there construed the act of 1927, which provided for the establishment for consolidated school districts in counties having a population of 75,000 or more, etc. The court said in that case:

“The statute does not delegate legislative power, so long as it is complete in itself when it has passed the Legislature, even though it is left to a vote of the people when it shall come into operation. In the case at bar the law is complete in itself. It declares the result which may come from holding the election under its provisions. It is simply a case where the Legislature passed a complete statute, but made its enforcement depend upon the will of the people, to be expressed at an election called under the provisions of the act for that purpose.”

That act, however, provided that it should take effect and be in force from and after its passage. It was a complete act, and went into effect without regard to any election, but it simply provided that, upon the petition of not less than 100 qualified electors of- any one county, the board might call an election of all the legal voters in the county. And if a majority voted for the county school district, the county board of education should then enter an order, etc.

But act No. 108 of 1925, providing for a stock law in Monroe County, provides: “In the event the majority of thé .voters voting at said election shall vote ‘For stock law,’ as shown by said certificates of said election commissioners, the county court of Monroe County shall, on the first day of its July term, 1925, enter an order upon' the county court records of said county, declaring this act adopted and in full force and effect, and this act shall, from and after the date of said order of said county court, to-wit, the first Monday in July, 1925, take effect and be in full force and effect, and all laws and parts of laws in conflict herewith be and the same are hereby repealed.”

This act did not go into effect merely by its passage by the Legislature, but it is expressly stated that it shall go into effect when a majority have voted for the law and the county court has made an order. That from and after that date it shall go into effect. This law violates that provision of the Constitution which says no measure shall be submitted to the people by the General Assembly except a proposed constitutional amendment or amendments as provided for in this Constitution.

The amendment also defines the word “measure” to mean any bill, law, resolution, ordinance, charter, constitutional amendment or "legislative proposal or enactment of any character. Certainly that covers the bill submitted to the people of Monroe County. The Constitution prohibits the Legislature from submitting any measure. Here was a measure submitted to the people, a bill to become a law only when a majority of the people had voted for it and there had been an order of the eonnty court, as provided for in the act. The provision of the Constitution is plain and unambiguous, and that provision prohibits submitting measures like this to the people to become effective as a law only when adopted by the people. The law therefore never became effec- ^ tive, the election held at a time different from the date fixed by the Legislature was void, and the law itself a nullity. And the law of 1927 declaring elections under no-fence laws valid could not affect this election, if it was void.

“A curative statute is only intended to cure defects in the execution of a mortgage, and cannot, in the very nature of things, render valid an act which was absolutely void in the beginning. # * * The curative act in question did not purport to cure anything except defective instruments, and does not purport to render valid and effectual an act which had never been done.” Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d.) 59.

Act 84 of 1927 was a curative act, and undertook ¿ to cure defects or cure acts that were irregular, but there is no irregularity about the proceedings with reference to the Monroe County stock law. The election was void, and the act therefore never became effective.

. The 1927 act could not be effective for another reason. The amendment adopted at the general election October 5, 1926,. provides:

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

The Legislature, under this amendment, could not pass a special act. And if a special act had been passed before the adoption of this amendment, but had not gone into effect, the act of 1927, undertaking to cure a defect, would, in effect, be passing a local act. If the election, held at'the time it was, had been valid, then the act of 1927 would have been wholly unnecessary and would have had no effect at all. If the election was' invalid-, then the law was void, and if the 1927 law was intended to render a local law valid, then it was in effect the passage of a local law, and this it could not do under the amendment to the Constitution above referred to. If the Legislature could, not pass a local act it could not make effective a local act that was void. It could not do indirectly what the Constitution prohibits it from doing directly.

This case is reversed, and remanded with directions to enter a judgment for the plaintiff.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Edlin v. Moser.
    Opinion delivered April 16, 1928.
    .1. Partnership — interest in profits of real estate deal. — Where parties entered into a joint enterprise for the purpose of acquiring and reselling real estate for their mutual benefit, each to share equally in the profits, they became partners in the particular deal.
    2. Partnership — profits from exchange of real estate. — In an action by a partner for an interest in the profits realized in an exchange of lands, evidence held to show that defendant partner secured title to land in the name of a codefendant without plaintiff’s knowledge, through connivance with such codefendant and with fraudulent intent to deprive plaintiff of an interest in the profits.
    3. Trusts — resulting trust. — Where title to property is taken in ithe name of one for the benefit of partners, a resulting trust not within the statute of frauds (Crawford & Moses’ Dig., §§ 4862, 4866) was created against him in favor of such partners.
    4. Trusts — constructive trust. — Where a partner took title to real estate received in exchange for partnership realty in the name of a third party, without his copartner’s knowledge, with fraudulent intent to deprive the latter of any interest in profits, the transaction constitutes a constructive trust, 'to which the statute of frauds (Crawford & Moses’ Dig., §§ 4862, 4866) does not apply.
    5. Partnership — oral contract for dealing in lands. — Under an oral contract to acquire and resell real estate for mutual benefit of a partnership, a partner may recover his interest in the partnership real estate-, title to which had -been fraudulently taken in the name of another for the purpose of defeating his interest therein.
    Appeal from Garland Chancery Court; W. B. Duffle, Chancellor;
    affirmed.

      George P. Whittington, Robinson, House <& Moses, Prank Pittard and Harry E. Meek, for appellant.

      E. P. Toney, James E. Huff and Martin, Wootton & Martin, for appellee.
   McHaney, J.

There is a very large record in this case, more than 1,100 pages, in two volumes. It will therefore be impossible to do more than state in a general way the substance of this controversy and the conclusions of law to be drawn therefrom, and at the same time confine this opinion within reasonable limits.

Appellants, Abraham Edlin and his son, J. Kenneth Edlin, are residents of Chicago, and engaged in the real estate brokerage business, while appellee is a resident of Indianapolis, Indiana, and engaged in the real estate brokerage business there, and has been for the past fourteen years. It appears from the evidence that he is a man in good standing’ with financial institutions in his own city, but of comparatively small means. In May, 1925, appellee and appellant, Kenneth Edlin, associated themselves together for the purpose of engaging in the real estate business for their joint benefit, each to share the profits and losses therefrom equally. After thus associating themselves, they engaged jointly in certain real estate transactions, the first being the purchase by them of an undivided one-half interest in a farm in Fayette County, Indiana, in which appellee already owned the other undivided one-half interest. In aqquiring the outstanding undivided one-half interest appellee paid $2,500 cash, and Kenneth Edlin executed and delivered his note for the other $2,500, indorsed by appellee, which note has never been paid. After thus acquiring the equity in said farm, they traded it for a Chicago' apartment building’, known as the James Court, assuming a $200,000 mortgage thereon, and took the title thereto in the name of one Frank J. Smidl, a straw-man, who was the chauffeur of appellant, Abraham; Edlin. They thereafter made diligent efforts to sell or exchange the James Court property, and in other real estate efforts traveled extensively through Indiana, Illinois, Louisiana, Mississippi and Arkansas. They finally traded the James’ Court property for a plantation in Louisiana of 5,500 acres, together with all the personal property, live stock and crops on said plantation, subject to a mortgage of $35,000, and, as a part of the consideration, were given a third mortgage on the James Court property in the sum of $12,500. In their attempts to dispose of the James Court property they negotiated with Harry Daley, of Hot Springs, son of James E. Daley, the owner of a long-term lease on the Broadway Hotel in Hot Springs, for the exchange of this property for the lease on the hotel, both going to Hot Springs and negotiating personally with Harry Daley there. Daley interested his father in this matter, and they went to Chicago, at the invitation of Kenneth Edlin and Moser, to investigate the James Court property. In the meantime they had exchanged same for the Louisiana plantation, and they undertook to interest Mr. Daley in other property in Chicago, and he finally agreed to exchange his hotel property, free from any liens or incumbrances thereon, for a. certain property in Chicago, known in the record as the "Croninger property, subject to an incumbrance of $200,000.

On the 15th day of August, 1925, they entered into a written contract with James E. Daley for this exchange of property, the contract being signed by James E. Daley and the same Frank J. Smidl, the straw-man for Moser and Kenneth Edlin. At the time this contract was entered into they had not acquired the Croninger property, so as to he able to effect an exchange, but, on August 18, three days after the execution of the contract by Daley and Smidl, they procured the execution of a contract by the owner of the Croninger property, by which he agreed to convey same to the said Smidl for $25,000 in cash, subject to outstanding incumbrances in the sum of $200,000, the cash consideration to be paid within ten days, or not later than August 28, and the whole deal to be consummated as of September 15, through the Chicago Title & Trust Company. In both of these contracts it is undisputed that Moser, and Edlin were the real parties in interest, and that 'Smidl held the naked legal title for their use and benefit. Appellant, Abraham Edlin, was thoroughly familiar with the two contracts above mentioned. Immediately after securing the contract on the Croninger property, Kenneth Edlin and Moser left for Hot Springs, stopping at the Broadway Hotel, for the purpose of securing a loan of $25,000 on the hotel property to enable them to pay the $25,000 cash called for in the contract for the Croninger property. On their arrival in Hot Springs, Kenneth Edlin attempted to negotiate this. loan. He applied to the Security Bank in Hot Springs for a loan of $30,000 to be secured'by a first mortgage on the Broadway Hotel property, but did not get any loan or the promise of one. He then applied to the Arkansas Trust Company for a loan of $30,000 with such security.

Up to this point there is no disagreement in the evidence, of a substantial nature, but here the parties differ as to what occurred, appellee stating that Kenneth reported to him that the Arkansas Trust Company would make a loan of $30,000, and that all that was necessary was to get the papers in shape, show a clear title to the Broadway property, execute the note and mortgage therefor, and thus consummate the deal for the exchange of such properties; while Kenneth Edlin testifies that he reported to Moser that the Arkansas Trust Company would make the loan provided their financial and moral responsibility was shown to be good, upon an investigation to be made by Mr. Henderson, the president of the trust company, and that they both then agreed that they would have no chance of securing the loan; that they then left Hot Springs without undertaking to secure the loan from any other bank there, although there were three- or four others, and returned to Chicag’o. "While in Hot Springs on this mission, and shortly before their departure for Chicago, Moser sent the following telegram to his wife in Indianapolis: “Deal financed. Fine. Leave here for Chicago tomorrow. Home Saturday some time. Mail Florida abstracts in my desk to me, Great Northern Hotel, Chicago, immediately. This matter same as completed. ’ ’

. They arrived in Chicago August 22, where a settlement was had with appellant, A. Edlin, relative to the James Court property, in which Moser was paid $3,352 as his share of the profits. Moser then returned to his home in Indianapolis, and shortly thereafter went to Louisiana and Mississippi in furtherance of their joint enterprises, leaving Kenneth Edlin in Chicago to close up the Broadway Hotel deal, and on the 2d or 3d of September was ’joined by Kenneth Edlin in the prosecution of their real estate work. Moser says the settlement relative to the James Court property was friendly, whereas appellants testify that appellee was very much dissatisfied with it, and became very angry, but finally accepted it. They both testify that A. Edlin asked them how the Hot Springs deal was getting along, and that they both told him it could not go through, as they had been unable to secure the loan of $30,000, and that A. Edlin, at that time, stated that he might take it over. A. Edlin says that they both told him that they were through with the deal, and that he went into it with the understanding that they were both out of it; that they gave it up because they were unable to finance the $25,-000 cash payment for the Croninger property. Either on the 22d or 23d of August, after Moser had gone, Kenneth Edlin communicated with Mr. Daley, who was then in Chicago, and informed him that the deal was going through, and asked him to take immediate steps for its consummation. He told Daley that he and Moser were partners in this and other matters. Upon receiving this advice, Daley telegraphed two parties in Houston, Texas, who were interested with him in the Broadway Hotel, to meet him at Hot Springs at once, and that he left immediately for Hot Springs, arriving there on the 24th, and that Kenneth Edlin arrived on the same train with him. He prepared a deed to be executed by the corporation holding the record title to the Broadway Hotel to James E. Daley, and another deed conveying the same property from Daley and wife to appellant, Abraham Edlin. Mr. Daley thought he was dealing with Kenneth Edlin and Moser all the time, that they were partners in this transaction, and that he executed the deed to A. Edlin at Kenneth Edlin’s suggestion. The deed from Daley and wife to A. Edlin had to be mailed to Mrs. Daley at Houston, Texas, for her signature and acknowledgment. It was acknowledged by her on the 27th day of August. On the 24th Kenneth Edlin received assurance from the trust company that they would make the loan for $30,000 on the hotel. He also had the title to the Broadway Hotel property examined. Both of the above mentioned deeds were dated August 25. He returned to Chicago, and was there on the 28th, when the $25,000 was due to be paid for the Croninger property. On August 27, Mr. Henderson, president of the Arkansas Trust Company, wrote the Drexel State Bank of Chicago, the following letter, and received the following reply thereto:

“Mr. J. Kenneth Edlin, of the brokerage firm of Abraham Edlin & Company of your city, is now in Hot Springs and is negotiating the purchase of a hotel here. In connection with the purchase he has made application to us for a loan of $30,000, which we are willing to advance. However, before doing so, we desire to obtain some definite information as to the financial responsibility of the firm and of Mr. Edlin, their business methods, etc. The title to the property will be taken in the name of Abraham Edlin, and he will execute the mortgage and note to us.
“We will very much appreciate it if you will give us whatever information you may have as to the Messrs. Edlin. Any information yon may furnish, us will be held in strict confidence, and we will be glad to reciprocate the favor at any time we can serve you. ’ ’
“August 31, 1925.
“Arkansas Trust Co.,
“Hot Springs National Park, Ark.
“Gentlemen: Attention Mr. Henderson.
“We are in receipt of your favor of the 27th inst., inquiring regarding Mr. J. Kenneth Edlin of the brokerage firm of Abraham Edlin & Co.
“In reply beg to say that we do not have an account under the name of J. Kenneth Edlin, but J. Y. Edlin has carried a small checking account with us. Mr. Abraham Edlin has banked with us since February, 1924, is carrying a good four-figure balance at the present time. Dealings satisfactory.
“Yours very truly,
“................................................................, Cashier.”

On the 28th day of August, after Kenneth had returned from Hot Springs, knowing that the loan would be made, Croninger came to the office of A. Edlin for his $25,000 cash payment. By agreement with A. Edlin, and on the payment by him of $1,000, the time was extended to pay the balance until a later day. Within the time the loan from the Arkansas Trust Company was consummated by Kenneth Edlin, in the name of A. Edlin, who signed the note and mortgage, and all' the papers were forwarded to the Chicago Title & Trust Company for the purpose of having it deliver all deeds, the money on the loan, and settle the transaction between all parties concerned, which was accomplished on September 15,1925.

On the back of Exhibit D to the deposition of A. Edlin, which is an application prepared by the Chicago Title & Trust Company, Frank J. Smidl on that day executed an order, indorsed thereon as follows: “Pay

amount payable to me to order of J. Kenneth Edlin.” Appellee testified that he had no knowledge of any change in their plan to have the title to the Broadway Hotel taken, in their joint names, or in the ñamé' of Smidl for their joint benefit, until the 9th day of September, when he was in the office of A. Edlin’s attorney, adjoining that of A. Edlin, where he saw a deed lying on the desk, conveying the Broadway Hotel to A. Edlin, and that he at that time objected, and insisted on his rights being protected in and to said property; that they had quite an angry discussion between them regarding the matter, and that at this meeting he was, for the first time, advised that it was the intention of appellants to exclude him from any interest in the deal. He thereafter instituted this action in the G-arland Chancery Court to recover his interest in the profits of this deal.

On March 2, 1927, the court entered an interlocutory decree in favor of appellee to an undivided one-half interest in and to the Broadway Hotel property, subject to the mortgage aforesaid, and divesting a one-half interest out of appellants, and investing same in appellee, and directing the execution of a conveyance thereof to appellee, in which decree the court retained jurisdiction to state an account between the parties for the rents and profits accruing' subsequent to October 1, 19*25. This decree was later made final, alnd, in addition, appellee was given judgment for $5,024.64 against appellants, for which a lien was fixed upon the property for the payment thereof. From these decrees this appeal is prosecuted.

The diligence of learned counsel on both sides, in the preparation of briefs and citation of authorities for our assistance in deciding this ease, is commendable. These briefs raise many questions we do not find it necessary to discuss or decide. We think the principal question is one of fact, that is, whether the relations existing between Kenneth Edlin arid appellee constituted a partnership, and whether, under the facts in this case, the primary object of the suit was to recover an interest in land, and, the agreement therefor not being in writing, would be barred by the statute of frauds, §§ 4862 and 4866 of O. & M. Digest, or whether a suit for the recovery of an interest in partnership profits, which would not be barred by the statute of frauds. We think a decided preponderance of the evidence shows that the parties entered upon a joint enterprise as partners, for the purpose of acquiring and reselling real estate for their mutual benefit, each to share equally in the profits, and that they are therefore partners in this particular deal; that they acquired the Croninger property in the name of Smidl with the view of trading it for the Broadway Hotel, which contract was also taken in the name of Smidl, and that Smidl held same as a trustee for the benefit of J. Kenneth Edlin and Moser; that Kenneth Edlin secured the loan of $30,000 from the Arkansas Trust Company in the name of A. Edlin without appellee’s. knowledge or consent, and, furthermore, took the title to the Broadway Hotel in the name of A. Edlin without the knowledge, consent, or even acquiescence of appellee, but through connivance with his father, and with a fraudulent intent to deprive appellee of any interest in the profits of the transaction. The proof showed the Broadway Hotel to 'be worth, on a conservative estimate, $100,000, which represented a net profit to them, after deducting the mortgage, of $70,000. This represented the profit, to the partnership in the whole transaction, by which they exchanged the Croninger for the Broadway property. It did not cost A. Edlin one penny. True, he advanced on the Croninger property $1,000 on August 28, but he got it all back on September 15, plus about $2,500 in cash on account of the excess loan from the Arkansas Trust Company over the cash payment on the Croninger property, and expenses. It is true that A. Edlin incurred some expenses, approximately $2,500, in getting the transaction closed, all of which was returned to him out of the loan. Upon delivery of the instruments aforesaid to Smidl, a resulting trust was created as against Smidl, in favor of Kenneth Edlin and Moser, and, if the deal had been finally consummated through Smidl, but for their use and benefit as contemplated, it is not even contended by appellants that the statute of frauds would be applicable, because a suit to enforce a resulting or constructive trust is specifically exempted from the statute of frauds.

We do not think that Moser abandoned his interest in the transaction, as contended by counsel for appellants, but, on the contrary, we are of the opinion that a preponderance of the evidence shows that he did not abandon, and that the taking- of the title to the property in the name of A. Edlin, under the circumstances in this case, constitutes a constructive trust, or trust ex maleficio, and that the statute of frauds has no application under such a situation. In Bray v. Timms, 162 Ark. 247-271, 258 S. W. 338, 345, it was held that parol evidence is admissible and competent under § 4868, C. & M. Digest, to establish a resulting or constructive trust, and said: “But the statute also wisely provides that, where any conveyance shall be made of any lands or tenements by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by the above rule. See § 4868, C. & M. Digest. Were the rule otherwise, a statute which was intended to prevent fraud would, in many cases, be a potent instrument of fraud. ’ ’

The court in that case quoted from 1 Pomeroy’s Eq. Jur., § 155, as follows:

“The second great division of trusts, and the one which in this country especially affords the widest field for the jurisdiction of equity in granting its special remedies, so superior to mere recoveries of damages, embraces those which arise by operation of law from deeds, wills, contracts, acts or conduct of parties, without any express intention, and often without any intention, but always without any words of declaration or creation. They are of two specie's, ‘resulting’ and ‘constructive,’ which latter are sometimes called trusts ex maleficio; and both these 'Species are properly described by the generic term ‘implied trusts.’ Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner. * * * If one party obtains the legal title to property not only by fraud, or by violation of confidence or of the fiduciary relations, but in any other unconseientious manner, so that he cannot ' equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the 'beneficial owner. ’ ’

In that case the authorities are collected and reviewed at length, and it was there said, again quoting from Mr. Pomeroy, that the law is well established that trusts ex maleficio will be declared whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealment, or other undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means, or under any other similar circumstances, which render it unconseientious for the holder of the legal title to retain and enjoy the beneficial interests.” 3 Pomeroy’s Eq. Jur., § 1053. We therefore conclude on this point that A. Edlin holds the legal title to the Broadway Hotel property for the benefit of Moser and himself, or Moser and Kenneth Edlin.

Appellants rely upon the cases of Beebe v. Olentine, 97 Ark. 390, 134 S. W. 936, and O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347, as authority preventing appellee from-recovering an interest in the Broadway Hotel, for the reason that it is a suit to recover an interest in land or real estate on an oral agreement, which is prohibited 'by the statute of frauds. We do not think these cases are authorities in point here. In the Olentine ease, a partnership agreement for the purchase and resale of lands was involved, but the lands had been sold at a profit, and the court was dealing with money, and not with land. In O’Bryan v. Zuber, a partnership existed for- the purpose of operating* an orchard and dividing the profits. Zuber contended that he was entitled to a one-half interest in the land, which was to be paid for out of the profits of operating the orchard. He contributed nothing to the purchase of the land, and relied upon a parol agreement with O’Bryan, in which O’Bryan was to advance the purchase price, and was to be repaid out of the profits of operation. Here the facts are different. Here, from the result of their joint efforts, there is a profit from partnership activities, both in money and land, or a lease on land. They both contributed jointly to the acquisition of such property. By their joint efforts the Croninger property was acquired and traded for the Broadway property, which resulted in a profit to them of the Broadway property, subject to the mortgage. There was a surplus fund realized from the mortgage, over and above the cash purchase price for the Croninger property, and we think this suit primarily is to compel a division of profits realized from a partnership activity. We are furthermore of the opinion that they acquired the Broadway property for the purpose of reselling it, and we know of no rule of law that would prevent a partner from recovering his interest in partnership real estate, the title to which had been fraudulently taken in the name of another for the purpose of defeating his interest therein. Toll v. Lewis, 136 Ark. 318, 206 S. W. 442.

Finding no reversible error, the decree of the chan-. eery court is affirmed.


text:
    Taylor v. Simpkins.
    Opinion delivered April 16, 1928.
    1. Banks and banking — insolvent bank — proof of claim. — Crawford & Moses’ Dig., § 722, as amended by Acts 1923, p. 520, § 5, requiring proof of claim within one year after the Bank Commissioner takes over an insolvent bank’s assets, held inapplicable to a claim of a nonresident depositor without notice of the bank’s insolvency or notice to file claim where the Commissioner had the full amount of the deposit in his hands for payment on demand from funds loaned by other banks for the payment of depositors.
    2. Banks and banking — bank commissioner trustee when. — The Bank Commissioner, in accepting money loaned to an insolvent bank by other banks and turned over to him for payment of all depositors, became a trustee, whose duty it was to apply such funds to the purposes of the trust.
    Appeal from Jefferson'Chancery Court; II. R. Lucas, Chancellor;
    affirmed.

      R. W. Wilson, for appellant.

      Rowell & Alexander, for appellee.
   McHaney, J.

Appellant has correctly stated the case as follows:

“On January 5, 1925, the Citizens’ Bank of Pine Bluff, Arkansas, was found to be insolvent, and the Bank Commissioner, Charles McKee, took charge of its affairs, and appointed C. A. Fullinwider, special deputy, in charge. On the same day the bank and the directors thereof entered into a contract with five other banks' of Pine Bluff for sufficient money to pay all depositors, etc., not exceeding $2,300,000. The assets of the Citizens’ Bank, including the money borrowed, were turned over to the Bank Commissioner for the purpose of liquidating the affairs of the Citizens’ Bank. All local depositors were taken care of by the five banks, but the intervener’s (being a nonresident, and not being located) deposits remained in the hands of the commissioner. The Bank Commissioner complied with the statutes in giving the various notices, but the intervener did not make proof of her cláim or demand payment until August 26, 1926, when same was refused.

“Intervener claims that the contract supersedes the statute of limitations as set out in § 722 of C. & M. Digest and amended by § 5 of the act 627 of the General Assembly of 1923. Appellants contend that payment is prohibited by the provisions of the above statute, and that the contract does not prevent the running of the statute of limitations; that the fund obtained by the Citizens'’ Bank and its directors was not a trust fund, but only for purpose of paying* the depositors, etc., in accordance with the law, the same as if no funds had been borrowed.

“The chancellor found that the one-year statute of limitations for presenting* and making proof of her claim and the additional six months for filing'suit after her claim was rejected did not apply, and that the intervener, Doshia 'Simpkins, is entitled to recover, and from that decree the 'Bank Commissioner has appealed.”

The only question for our determination is whether the appellee is barred by the one-year statute of limitations, as contained in. § 722, C. & M. Digest, as amended. by § 5 of act 627 of 1923. A part of this section is as follows:

“The commissioner shall cause notice to be given by advertisement in such newspapers as he may direct, weekly for four consecutive weeks, calling* on all persons who may have claims against the said estate, to present the same to him and make legal proof thereof, at a place and at a time to be fixed by the said commissioner in said notice. At or after the expiration of said time the commissioner shall give, either personally or by depositing in the mail, a further ten days’ notice to all creditors who have not yet then proved their claims and whose names and addresses are known to him. No claim shall be allowed unless proof thereof has been presented to the commissioner within one year from date on which the commissioner takes over the assets of the liquidated bank. If the commissioner doubts the justice or the validity of any claim, he may reject the same and serve notice of such rejection upon the claimant, either by depositing the same in the mail or personally. An affidavit of the service of such notice, as also of any .such ten days’ notice, which shall be prima facie evidence thereof, shall be filed with the commissioner. An action upon a claim so rejected must be brought within six months after such service.”

She did not present her claim within that time. She in fact presented it about six months later, and the Bank Commissioner, although having the money in his brands which had been turned over to him by the five other banks in Pine Bluff for this purpose, declined to pay same, and refused her claim, on the ground that he was prohibited from so doing by the above statute.

This act of 1923 amended and changed the banking laws of this State in many respects. The above section, which is quite lengthy, and too long to. set out in full herein, prescribed the procedure for the commissioner to take in winding up the affairs of an insolvent bank in the ordinary way, that is, where he takes over the assets and liabilities and proceeds to liquidate it by collecting the assets, turning them into cash, and paying its debts. It provides for the payment of dividends on the claims filed from time to time as cash is accumulated in his hands for this purpose. In such a case it would be necessary for the Bank Commissioner to determine, within a reasonable time, what the provable claims against the bank were, in order that he might make distribution of the funds by way of dividends. The statute of limitations, as fixed in the act, therefore very properly applies to such a case, as otherwise the Bank Commissioner would not know the amount of dividends he might declare and pay at any given time. But the facts in this case are wholly different. Here the Bank Commissioner is not proceeding under the statute to liquidate the affairs of the Citizens’ Bank of Pine Bluff, but by virtue of a contract between it and the other five banks in Pine Bluff. Funds to the extent of the total deposits in the bank were turned over to bim for the express purpose of paying all depositors. It was not contemplated that dividends would be declared and paid to the depositors from time to time until the assets of the bank were exhausted, but each and every depositor became immediately entitled to the full amount of his deposit on demand. Appellee, being a nonresident, did not know of the insolvency of the Citizens’ 'Bank, and received no notice from the Bank Commissioner directing her to file her claim. The exact amount of her deposit was shown upon the books of the bank, and he knew she was a depositor and entitled to the sum allowed her by the court in this action. The concluding sentence in the above section of the act of 1923 reads as follows: “The commissioner may pay over any such unclaimed deposits or dividends when the same are claimed within apt time, as aforesaid, to the person respectively entitled thereto, upon evidence satisfactory to himself or upon order of the chancery court.”

This clause has no particular application, except that it shows that there is some discretion left to the commissioner and the court to pay unclaimed deposits, even after the time provided for. That part of the contract between the Citizens’ Bank and the other five banks in Pifie Bluff which is peculiarly apropos here reads as follows:

“At the request of the parties of the first part, the parties of the second part have agreed and do hereby agree to lend to the Citizens’ Bank of Pine Bluff such amount as may be necessary, together with the cash which said Citizens ’ Bank has on hand, to pay all deposits, bills payable, outstanding drafts, acceptances and current bills of said Citizens’ Bank, not exceeding $2,300,000, the proceeds of such loan to be used for said purposes and as may be agreed upon and directed by the said parties of the second part. The Citizens’ Bank of Pine Bluff hereby agrees to repay to the parties of the second part the amount so loaned, on demand, with interest thereon at the rate of six per cent, per annum from date until paid. ’ ’

'By taking charge of the Citizens’ Bank the same day the above agreement was made, the money was turned over to the commissioner for the purposes indicated, and in accepting it he became a trustee, whose duty it was tb apply the funds received by him to the purposes of the trust. It is not claimed that the fund has been exhausted by the payment of deposits and other liabilities of the bank, so that this claim cannot be paid, but, on the contrary, it is admitted that the Bank Commissioner has in his hands the funds with which to pay .same. It could not lawfully be paid to any one else, and the manifest justice and equity of the case is that it be turned over to her.

We are therefore of the opinion that the statute of limitations has no application to the facts in this case, and that the Bank Commissioner is under the same duty to pay this deposit on demand as the Citizens’ Bank of Pine Bluff would have been had it not been taken over by the Bank Commissioner. The judgment of the chancery court is'therefore correct, and it is affirmed.


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    Grayson v. Mixon.
    Opinion delivered April 16, 1928.
    1. Landlord and tenant — suit for rent premature when. — A landlord’s suit to recover a month’s rent due under a contract was premature, where it was brought before the expiration of ■the 10' days’ grace allowed by the contract for the payment of each month’s rent.
    2. Landlord and tenant — suit for rent premature when. — A landlord’s suit for the whole amount of rent due under a five-year contract was premature, when it was brought before the expiration of the time for which the contract was to run.
    3. Landlord and tenant — abandonment of premises. — Upon the tenant abandoning the premises, the landlord’s right of action to recover the full amount of rent due accrues only at the end of the term when all of the installments of rent have matured.

      4. Landlord and tenant — acceptance of tenant’s abandonment. —Where a landlord accepts the abandonment by the tenant of the leased property and rents the property on his own account, the tenant is not liable for future rent.
    5. Landlord and tenant — abandonment of lease — right of action. — A landlord may refuse to accept the abandonment of the premises by the- tenant and sue him for the rent as it falls due each month; or if he so elects, he may treat the lease agreement as at an end and sue immediately for damages for breach 1 of the contract and recover the difference between the amount of rent reserved and the reasonable rental value for the remainder of the term, if the rental value be less than the amount reserved in the lease; or the landlord may wait until the end of the term and sue for the difference «between the rent reserved and the actual amount of rent received from the subletting on the tenant’s account.
    6. Landlord and tenant — liability op tHnant on abandonment of lease. — Where, on the abandonment of leased premises by the tenant, the landlord is unable to rent the premises, the tenant is liable for the full amount of the rent reserved.
    7. Landlord and' tenant — lien on tenant’s furniture. — Where a contract between the landlord and the tenant provided for a lien on the tenant’s furniture to secure the prompt payment of the rent, the court could not extend such lien to recover damages for the breach of the lease.
    Appeal from Columbia Chancery Court; J. Y. Stevens, Chancellor;
    reversed in part.

      Gaughan & Sifford, for appellant.

      McKay & Smith, for appellee.
   McHaney, J.

This appeal is from a decree sustaining a demurrer to appellant’s complaint against the appellees, and dismissing it for want of equity. The complaint states, in substance, that, on January 1, 1926, the appellant entered into a lease contract with appellee, Mixon, whereby he leased to him a certain hotel property situated in the town of Stephens, Ouachita County, Arkansas, for a term of five years, for the annual rental of $3,000, payable monthly in advance at $250 per month; that appellee entered into possession of the property and operated it until the first day of May, 1927, paying the rental therefor in accordance with his contract; that on the 11th day of April, 1927, Mixon gave appellant notice in writing- that he would not occupy said building-, or pay any rental subsequent to May 1, 1927, and that he did vacate the hotel on that date, thereby breaching his contract to pay the rental for the remainder of said five-year period; that the amount of rental due by him under said contract, or that he was to pay under the same, is the sum of $11,000, and the plaintiff prays judgment against said defendant for said sum.

It was .further alleged that the lease contract was in writing, and by its terms gave the appellant a lien on all the furniture in said hotel belonging to the lessee to secure the payment of said rental, and that the instrument was acknowledged and filed for record in the recorder’s office of Ouachita County; that the furniture has been removed from the hotel, stored in a warehouse in the town of Stephens, with A. Foster, and that it is now in his possession as bailee for hire, a copy of the lease agreement being- attached to the complaint.

A further provision is in the lease to the effect that the lessee should have ten days of grace in which to pay the rent before the lessor could declare a forfeiture.

The appellee, People’s Bank, was made party defendant because it claimed a lien upon the furniture, to the end that their respective rights therein might fie determined. The prayer was, in addition to the judgment for balance due on rent, that appellant’s lien on the furniture be foreclosed and applied to the satisfaction of said indebtedness.

Mixon did not plead, answer or demur to the complaint. Appellee, People’s Bank, demurred to the complaint, which the court sustained, and, as heretofore stated, dismissed the complaint for want of equity.

This suit was brought on May 5,1927, five days after the rental for May accrued, and five days before the expiration of the ten days of grace allowed. It was therefore prematurely brought, if the complaint be treated as a suit for rent, for which it specifically prays judgment. Appellant could not sue for the whole amount of the rent due under the contract at that time, as the agreement was, it should be paid monthly in advance, with ten days of grace from the first of each month, and the full amount of rent had not accrued. And if the complaint be treated as a suit for one month’s rent, it was premature, for the reason that the ten days allowed in which to pay had not expired at the time of bringing this suit. Meyer v. Smith, 33 Ark. 627, is the first case in our own decisions relating to the subject. It was later cited in Williamson v. Crossett, 62 Ark. 393, 36 S. W. 27, where, referring to that case, it was said: “It was held in that ca^e that, when the tenant abandons the premises, refuses to pay' rent, and repudiates the tenancy before the expiration of the lease, the landlord may take possession, and rent for the benefit of whom it may concern, and hold the tenant liable for any portion of the rent unpaid at the end of the term.” In Meyer v. Smith it was further held that the landlord, by retaking possession under the circumstances in that case, did not, as a matter of law, accept surrender of the lease, and that a recovery could be had at the end of the term for the difference between the rent reserved and that realized by renting for the benefit of the tenant.

In Williamson v. Crossett it was held that, under the circumstances in that case, the surrender of the lease had been accepted, and that there was therefore no liability for the future rent after surrender and acceptance.

In Hayes v. Goldman, 71 Ark. 251, 72 S. W. 563, this court said: £ £ Now, any acts which are equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to assume possession of the demised premises on his own account, amount to a surrender of the term, by operation of law.” Citing cases.

“An express agreement to accept the surrender need not be shown, for the landlord’s assent may be implied by operation of law from the manner in which he uses the property after its abandonment by the tenant.” 2 Wood, Landlord & Tenant (2 ed.) 1173.

“If the landlord takes charge of the property after the tenant has abandoned it merely to protect it from injury, or if, knowing that the tenant does not intend to return, he rents it for the account of the tenant, these acts may not show assent on his part, but if, after an abandonment, he takes possession, and rents the premises on his own account, this is conclusive evidence of a surrender.” Citing cases.

In that case, the court quoted from 2 McAdam, Land, & Ten. (3 ed.) 1283, as follows:

“"When a tenant abandons premises, and returns the keys to the landlord, the latter may accept the keys as a surrender of possession, thereby determining the tenant’s estate, and relet the premises on his own account, or he may accept the keys and resume possession conditionally by notifying the tenant or other person returning the keys that he will accept the keys but not the premises, and relet them on the tenant’s account, in which case the tenant may be held for any loss in rent caused by his abandonment and the subsequent reletting. ’ ’

Under these cases it would appear that the landlord’s right of action on the lease against his tenant for an abandonment of the leased premises for the whole amount of the rent reserved would only mature at the end of the term, when all the installments had matured, and when he would know that the full amount of rent reserved in the lease had been lost. Also it would appear that, if he takes possession of the property and sub-rents it for the benefit of the lessee, his right of action will mature at the end of the term, when he has ascertained the full amount of difference between the rent reserved ■and that obtained by the subletting.

Of course if he accepts the abandonment and rents the property on his own account, the tenant is not liable for future rent. It would appear also that the landlord could refuse to accept the abandonment, let the premises lie idle, and sue the tenant for the rent as it matured under the lease, in this case, on the 10th day of each month. In Bradbury v. Higginson, 162 Gal. 602, 123 Pac. 797, it was held that, although the tenant abandon the premises, the landlord has no right of action for the rent until it falls due. If the landlord so elects, he may treat the lease agreement as at an end and sue for damages for breach of the contract, in which case he could bring his action immediately on the breach and recover the difference between the amount of rent reserved and the reasonable rental value for the remainder of the term, if the rental value be less than the amount reserved in the lease, or he could wait until the end of the term and sue for the difference between the rent reserved and the actual amount of rent received from a subletting on the tenant’s account.

If the landlord is unable to rent the premises, the tenant would be liable for the full amount of the rent reserved. Authorities sustaining the rules of law as herein announced may be found in extended notes to the case of Higgins v. Street (Okla.), 14 Am. & Eng. Ann. Cases, 1086, and 13 L. R. A. (N. S.) 398.

In the case now before us there is nothing in the record to show whether the appellant has retaken possession of the premises, but we announce these rules in view of the disposition we make of this case.

If the complaint in this case be treated as a suit for the recovery of damages for a breach of the contract, the lien retained in the lease contract to secure the payment of the rent does not secure the amount to be recovered in damages for breach. If appellant elects to treat the contract between him and Mixon as at an end, the relation of landlord and tenant has ceased -to exist, and there is no provision in the contract giving appellant a lien on the furniture for damages, for the breach for the term, but only to secure the payment of the rent.

In New v. Mitchell, 80 Ark. 243, 96 S. W. 983, New rented land to certain tenants, who mortgaged the crop to Mitchell for supplies. In a contest between New and Mitchell as to the priority of their respective liens, New sought to recover damages and collect same under his landlord’s lien for neglect of the crop and for rental value of lands not cultivated, in violation of the contract, and this court said: “The landlord’s lien is primarily for rent alone, and has been extended by statute to advances of necessary supplies, money, etc. Kirby’s Digest, §§ 5032-3. It cannot be extended beyond the terms of the statute, and the claims here asserted áre not within the statute.” See also Kaufman v. Underwood, 83 Ark. 118, 102 S. W. 718, 119 Am. St. Rep. 121.

While the lien here involved is by contract and not by statute, we think by analogy the same rule applies, and that we could not extend the lien in the contract to cover damages for the breach thereof, as the contract itself provides that the lien is given “to secure the prompt payment of the rent.”

Since, as has been seen, if the complaint be treated as a suit for rent, even for one month, it was prematurely brought, and if it be treated as an action for damages, there is no lien on the furniture, the decree of the chancery court will be affirmed as to the People’s Bank. As to appellee Mixon, however, the decree will be reversed, and remanded for further proceedings according to law and the principles of equity and not inconsistent with this opinion.

Kirby, J., dissents.


author: Smith, J.

text:
    Crowe v. Security Mortgage Company.
    Opinion delivered April 16, 1928.
    1. Highways — assignment by road* district of certificate of purchase for taxes. — A road improvement district organized under Road Laws 1919, vol. 1, p. 1071, is authorized to assign a certificate of purchase issued under a decree foreclosing a lien of the district'for unpaid taxes, in order .that the lands may be placed again on the taxbooks and bear their proper share of the cost of improvement.

      2. Highways — time for redemption from tax sale. — Acts 1925, p, 1033, extending for 3 years the period of redemption of lands for nonpayment of assessment in improvement districts, did not become a law until 90 day-s after adjournment of a session pursuant to Constitution, Amendment 13, as it did not contain the emergency clause, and therefore it did not prevent the operation of Acts 1921, p. 296, limiting the period of redemption to 2 yeans, which period expired before the later, statute went into effect.
    3. Statutes — retroactive effect. — Where a statute does not indicate that it was intended to have a retroactive effect, a presumption is to the contrary.
    4. Evidence — judicial notice of legislative records, — The courts take judicial notice of the records of both branches of the Legislature.
    5. Highways^ — statute relating to publicity for tax sales.— Acts 1923, p. 445, relating to additional publicity for tax sales of land and sale of land for nonpayment of local improvement •assessments, not being retroactive in operation, held inapplicable to a commissioner’s sale made before the date on which the act became effective.
    Appeal from Arkansas Chancery Court, Northern District; II. R. Lucas, Chancellor;
    reversed.

      Floyd Wingo and W. A. Leach, for appellant.
   Smith, J.

This action involves the title to the north half of the southwest quarter land the southeast quarter of the southeast quarter of section five, township two south, range four west, lying in the Northern District of Arkansas County.

The Northern Road Improvement District was organized under special act No. 247, passed at the regular 1919 session of the Greneral Assembly (Special Road Acts 1919, page 1071, volume 1), and benefits were duly assessed under the authority of the.act against all the lands in the district, including the lands above described. The taxes were not paid on the above-described lands for the year 1921, and both tracts were duly returned by the collector of taxes as delinquent on April 11, 1922. Thereafter suit was brought by the district to enforce payment of the delinquent taxes, and on February 13, 1923, a decree was rendered foreclosing the lien of the improvement district for the 1921 taxes, and the lands were ordered sold by a commissioner appointed for that purpose.

This suit was brought under the authority of § 13 of the act creating the district, which provides that the county collector shall not sell the land returned delinquent for the nonpayment of the improvement taxes, but shall report such delinquency to the board of commissioners of the improvement district, who, after adding a penalty of 25 per cent., are required to enforce payment of the delinquent taxes by proceeding in the manner provided by §§ 23 and 24 of act 279 of the Acts of 1909 (Acts 1909, page 829), but it was there provided that the landowner might redeem his land at any time within five years from the time “when his lands have been stricken off by the commissioner making the sale.”

Section 23 of the act of 1909, Supra, provides that the proceeding to enforce payment of delinquent taxes shall be in the nature of a proceeding in rem, and by § 24 of that act it is provided that if, at the sale by the commissioner, no one offers to bid the taxes, penalty, interest and costs due on any tract of land, the ‘ ‘ commissioner shall bid the same off in the name of the said board of directors, # * * bidding therefor the whole amount due as aforesaid, and shall execute his deed therefor, as in other cases under this act, conveying such land to such * * * board.”

On April 5, 1923, pursuant to the decree of sale, the lands above described were offered for sale, and, there being no bidder therefor, the same were struck off to the road improvement district, and a certificate of purchase was issued to it. This sale was duly reported to and confirmed by the chancery court, and the commissioner was directed to execute deeds to the vai’ious purchasers at the .sale.

On April 5, 1925, the commissioners of the improvement district assigned its certificate of purchase to J. E. Duncan, and on January 5, 1926, a commissioner’s deed was duly executed to Duncan as such assignee, and on April 24, 1926, Duncan conveyed the lands to appellant, J. R. Crowe,- who now claims title thereto by virtue of such deed.

. Appellee, Security Mortgage Company, is the owner of the original title to the lands here in controversy, and in January, 1927, brought this suit to redeem from the sale for the 1921 taxes and to cancel the deed to appellant Crowe as a cloud on its title. The court granted the relief prayed, but held that, inasmuch as Crowe and Duncan had redeemed the lands from separate decrees of sale for other taxes, appellant Crowe was entitled to a lien on the lands for the amount expended to effect these redemptions, and from that part of the decree there was no appeal (Turley v. St. Francis County Road Imp. Dist. No. A 171 Ark. 939, 287 S. W. 196), but Crowe has appealed from that part of the decree holding that the right of redemption from the 1921 sale existed.

, The act of 1919 creating the improvement district provided, as has been stated, that the proceedings to enforce payment of the delinquent taxes shall be in accordance with the procedure provided by act 279 of the Acts of 1909, but that the owner 'Should have the right to redeem at any time within five years from the date of sale. Later, by act No. 223, passed at the 1921 session of the General Assembly (Acts 1921, page 296), the period of redemption was shortened to two years, and the validity of this last-mentioned act was upheld by this court in the case of Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 E. W. 762, which case arose under a commissioner’s sale made under the authority of special act No. 247 of the Acts of 1919, supra.

At the 1925 session of the General Assembly, act No. 346 was passed (Acts 1925, page 1033), extending for a period of three years, in addition to the time then allowed by law, the right to the landowner to redeem, and it was the opinion of the court below that this act applied to the sale here in question, and gave the owner the right to redeem at the time that application was made. The court below was also of the opinion that, as the act creating the improvement district did not, in express language, authorize the commissioners of the district to sell lands struck off to it by the commissioner, it could not assign the certificate of purchase nor otherwise dispose of any lands struck off to it.

The court below was also of the opinion that the right of redemption existed because of the noncompliance with the provisions of act No. 445 of the Acts of 1923 (General Acts 1923, page 395), entitled “An act to require additional publicity to tax sales of lands and sale of land for local improvement assessments.”

Section 1 of this act provides that: “When any lands are sold under the decree of chancery court for delinquent taxes or assessments levied by any special or local improvement district, * * * the clerk of said court shall, within ten days after the filing in his office of the report of the court’s commissioner making any such sale, prepare and file with the county clerk of the county in which the lands are situated, a certified list of the lands so sold; said list to contain a description of each tract under which the same was sold, the name of person or persons in whose name each tract was assessed and sold, the date of the sale, the name of the purchaser of each tract at such sale, and the amount of taxes, including penalty and costs, for which each tract was sold.”

It was the opinion of the court below that the statute limiting the right of the delinquent owner to redeem Ms property from the sale did not begin to run until this statute had been complied with, and that, inasmuch as there had been no compliance with this statute, the right of redemption had not been barred.

The first question presented is that of the right of the improvement district to assign the certificate .of purchase issued it under the decree foreclosing the lien of the district for the unpaid 1921 taxes. • "We think the district had this right. The act creating the district imposed upon the commissioners the duty of collecting all delinquent assessments, and they were required to institute suits for this purpose, and the act provided that, if no bids were offered for any particular tract of land, the same should be struck off to the commissioners for the amount of the taxes, penalty, interest and costs, and, if a redemption was not perfected within the time limited by law, a fee-simple title vested in them for the use of the district.

If thereafter these lands were not required to bear their proportionate part of the burden of the cost of the improvement, the burden on other lands not delinquent would necessarily be increased until the full amount-of the betterment, assessed against such lands would be required to be levied against them in order that the obligations of the district might be discharged. This could be avoided only by selling the lands as the district acquired them, in order that they might again be placed on the taxbooks and thereafter bear their proportionate part of the .cost of the improvement.

In reviewing previous decision on this question in the case of Chicago Mill & Lbr. Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810, it was said:

“It was pointed out in those cases that the lien of the district continued until the taxes were paid, or until the lands themselves were acquired by the district through sales for the nonpayment of the taxes, and that, when the delinquent taxes were paid, they became available, and should be used in paying the ohligations of the district; and further, that, if the lands were sold to the district, and not redeemed, then the entire value of the lands to be realized by a sale thereof would be available for this purpose. So that, while a delay would be entailed in obtaining and applying revenues from the delinquent lands, these revenues would finally be obtained and applied, and thus no unequal burden would be imposed. ’ ’

In the case of Blanton v. Jonesboro Bldg. & Loan Assn., 176 Ark. 315, 3 S. W. (2d.) 964, it was expressly held that an improvement district might sell, for such sum as it could obtain, lands the title to which had been acquired by the district through a sale to it for delinquent taxes, even though the act creating the district did not expressly confer that power.

So therefore it must follow that the improvement district had the right to assign certificates of purchase for lands sold it for a sum not less than the taxes, penalty, interest and costs for which the lands were sold. Therefore when, on April 5, 1925, the commissioners of the district assigned the certificates of purchase issued to them to Duncan, under the sale made April 5, 1923, pursuant to the decree of foreclosure, Duncan acquired the same rights he would have acquired had he himself been the original purchaser at the commissioner’s sale.

As we have said, it was the opinion of the court below that the right to redeem existed under both act 346 of the Acts of 19'25 and act 445 of the Acts of 1923; but we do not concur in the view that either act gave that right.

Act 346 provides that the time for redemption of any land upon which default has been made in the payment of improvement district-taxes shall be “extended for a period of three years in addition to the period of redemption heretofore fixed by law for the redemption of lands for the nonpayment of such annual assessment in any and all improvement districts.” This act was approved April 1, 1925, and on that date the improvement district had not assigned the certificate of .purchase issued to it on the sale made by the commissioner on April 5, 1923, and that certificate was not assigned until April 5, 1925, which was just two years after the date of the sale. If therefore act 346 was in effect as a law on the date of its approval,- the period of redemption was extended; as it might have been, inasmuch as the certificate of purchase on that date was outstanding in the name of the district. We have held that, while the period of redemption may not be extended after there has been a sale to an individual, as such legislation would impair the obligation of the contract arising out of the sale (Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 S. W. 762; Smith v. Spillman, 135 Ark. 279, 205 S. W. 107, 1 A. L. R. 136; Hogg v. Nichols, 134 Ark. 280, 204 S. W. 211), such legislation is valid where the sale was to the district itself, as no contractual right arose in the latter case. Walker v. Ferguson, 176 Ark. 625, 3 S. W. (2d.) 694.

The amendment to the Constitution submitted as Amendment No. 13, and commonly referred to as having that number, was in effect when act 346 of the Acts of 1925 was passed by the General Assembly (Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865), but it contained no emergency clause, and it did not therefore become effective, under Amendment No. 13, until ninety days after the final adjournment of' the session at which the act was passed. Fenolio v. Sebastian Bridge Dist., 133 Ark. 386, 200 S. W. 501; Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199.

Before the expiration of this ninety-day period the two years allowed by act 223 of the 1921 session for redemption from- sales had expired. Northern Road Imp. Dist. v. Meyerman, supra.

It is true, as we have said, that act 346 of the 1925 session had been approved at the time the commissioners of the improvement district assigned to Duncan the certificate of purchase, and it was the theory of the court below that, as this act had been approved, all persons must have known that ninety days after the adjournment of that session the right of redemption would he extended for a period of three years, and that parties purchasing lands held by an improvement district were bound by such notice, and, having taken the lands with notice that the time of redemption would be changed, they stand in the same relation they would have been in if they had taken the assignment after the act went into effect. But this does not follow. No rights could be predicated upon act 346 until it became a law, and prior to that time all parties had the right to contract under the then existing law.

In the case of St. Louis, I. M. & So. Ry. Co. v. Roddy, 110 Ark. 161, 161 S. W. 156, the facts were that Roddy was killed by the defendant railroad-company three days after the amended lookout statute was passed (act No. 284, page 275, of the Acts of 1911), and an instruction was given at the trial of the suit of his administrator for damages for his death, based upon this statute. This was held to be error, for the reason that the statute contained no emergency clause, and did not become a law until ninety days after the adjournment of the session at which that act was passed.

In the case of Thompson v. State, 151 Ark. 369, 236 S. W. 608, the facts were that the General Assembly had passed a special act detaching territory from one school district and attaching' it to another. The act contained no emergency clause, and it was held not to apply to the action of the school directors, who, after the passage of the act, but before it became a law, tore down and removed a school building from the detached territory.

In the case of Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S. W. 2, the electors in a road improvement district undertook to hold an election under the provisions of a special act which did not become effective until ninety days after the adjournment of the session of the General Assembly which had passed it, for the reason that it contained no emergency clause, and the election was there held to be premature and void. It was there s'aid: “Since the emergency Clause was not attached to the act showing the existence of an emergency, the act was the subject of a referendum under Amendment No. 7 of the Constitution, supra, and did not become operative until ninety days • after the Legislature adjourned.”

So here we conclude that, as act 346 of the Acts of 1925 did not contain the emergency -clause, it was not a law for any purpose until ninety days after the adjournment of the session of the Legislature at which it was passed, and did not therefore prevent the operation of act 223 of the Acts of 1921, supra, then the law barring all rights of redemption within two years from the date of the commissioner’s sale, as the act of 1921 provided. Under the 'act of 1921 the right to redeem expired April 5, 1925, and act 346 did not become a law until after that date. See also Wilkes County v. Coler, 180 U. S. 506, 21 S. Ct. 458, 45 L. ed. 643.

As it is conceded that the provisions of act 445 of the Acts of 1923, supra, were not complied with, it remains to determine what effect this failure had on the sale here under review.

It may be first said that there is nothing about the act of 1923 to indicate -that it was intended to have a retroactive effect, and the presumption is, of course, to the contrary. So strong is this presumption that (to quote a syllabus in the case of Mosaic Templars of America v. Bean, 147 Ark. 24, 226 S. W. 525), “all statutes are to be construed as having only a prospective operation, unless the Legislature expressly declares, or otherwise shows a clear intent, that it shall have a retroactive effect.”

This act of 1923 was approved March 20, 1923, which was prior to the date of the commissioner’s sale, which, as we have said, occurred April 5, 1923, and it contained an emergency clause which sufficiently declared an emergency to make the act immediately effec- ■ tive under the original I. & R. amendment, commonly referred to as Amendment No. 9. But this amendment had been superseded by the later initiative and referendum amendment, herein referred to as Amendment No. 13, under which last-named amendment it was required that a separate vote he taken upon the emergency clause, and that this clause receive a two-thirds vote of all the members elected to each house of the General Assembly.

We take judicial notice of the records of both branches of the General Assembly, and we thus know that no separate vote was taken on the emergency clause contained in the act, and, this being true, the act did not immediately go into effect. Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825. It did not therefore become effective as a law until ninety days after the adjournment of the session at which it was passed, and prior to that time the commissioner’s sale was made, and the act did not apply to that sale, as it was not retroactive in its operation.

In the case of Foster v. Graves, 168 Ark. 1033, 275 S. W. 653, it was held that the fact that a separate roll-call was not had on the emergency clause did not invalidate the statute, hut only rendered that clause inoperative. So that, while act 445 was valid, notwithstanding the emergency clause was not, it did not, through the lack of a valid emergency clause, become a law until after the commissioner’s sale had been made, and, for this reason, did not apply to that sale, as the act of 1923 was not retroactive in its operation.

We conclude therefore that the court was in error in canceling the deed of the commissioners to Duncan, based upon the commissioner’s sale, and also the deed from Duncan to appellant Crowe, and in according the original owner the right to redeem from the sale under which they claim, as that right was barred under act 223 of the Acts of 1921, supra. Northern Road Imp. Dist. v. Meyerman, supra.

It appears that appellee expended the sum of $312.42 in the redemption of the lands here in litigation from sales for the 1922 and 1923 taxes, and it should be reimbursed for those expenditures.

The decree of the court below will therefore be reversed, and the canse dismissed in so far as the cancellation of the deeds from the commissioners to Duncan and from Duncan to appellant is concerned, but a decree will be rendered in favor of appellee for the amount of the 1922 and 19'23 taxes, with the interest thereon, and a lien therefor will be declared in its favor, to be enforced by appropriate orders of the court.

Kirby, J., dissents.


author: Humphreys, J.

text:
    Union & Planters’ Bank & Trust Co. v. Elder.
    Opinion delivered April 16, 1928.
    Appeal and error — judgment on supersedeas bond. — On affirming a judgment for a certain proportion of the assets in the hands of a receiver, the judgment on the supersedeas bond should not he for a specific sum, hut should fix liability and remand the case wiith directions to ascertain the amount of such liability.
    Appeal from Prairie Chancery Court; Frank E. Bodge, Chancellor;
    judgment modified.

      Emmet Vaughan, for appellant.

      Daggett & Daggett, for appellees.
   Humphreys, J.

This case was affirmed (Purvis v. Elder, 175 Ark. 780, 1 S. W. (2d.) 36), whereupon appellee moved for judgment on the supersedeas bond, which was granted. In keeping with the order, the clerk of this court entered a judgment for $2,592, using as his guide the amount shown by the receiver’s report in the record. The judgment rendered in the trial court was not for a specific sum. Our attention has been called to the fact that the judgment was not for a specific amount but for a portion of the assets in the hands of the receiver, and that the receiver’s report appearing in the record was not his final report but, on the contrary, was his first report, which did not show all legal disbursements. In view of this fact it was error to enter a judgment here for a specific sum on the supersedeas bond, but tbe same should have fixed the liability on the bond, and the ease should have been remanded with direction that the amount thereof be ascertained by the trial court ■after allowing* the receiver such amounts as have been paid out >by him on order o'f the trial court.