author: Mehaeey, J.

text:
    National Union Fire Insurance Company v. Henry.
    Opinion delivered April 21, 1930.

      Dudley é Dudley, for appellant.

      C. D. Frierson and Cooley & Adams, for appellees.
   Mehaeey, J.

This action was brought to recover on an insurance policy issued by the National Union Pire Insurance Company to W. I. Henry. On October 8, 1926, W. I. Henry was the owner of a tract of land situated in Greene County, Arkansas, on which there was a dwelling house. The policy issued by appellant insured the building' for $700, and the furnishings which were in the building for $300. Henry had given a mortgage on the real property to the American Trust Company for $500, and there was a clause in the policy which provided that the loss or damage, if any, should be payable to the American Trust Company as interest may appear. Henry and wife, on January 1,1929, sold the real estate to E. N. Calhoun. Thereafter, on April 10, 1929, the house was struck by a tornado, and it was alleged that it was damaged in the sum of $830. The personal property was alleged to have been damaged in the sum of $100. After Henry sold the house, he retained one room for his use, and kept some of the property described in the insurance policy in this room, and it was in this room at the time of the tornado. The American Trust Company assigned and transferred to Mrs. Fannie Blum the notes and mortgage which had been executed by Henry to the American Trust Company, but it guaranteed the payment of the notes and mortgage to Mrs. Blum, and guaranteed that if foreclosure was necessary, it should be made without cost to her. This suit was brought by Henry, American Trust Company and Calhoun. Henry claimed that his personal property had been injured to the extent of $100, and asked judgment for that amount. He did not claim any interest in the building; he had already sold that to Calhoun. Calhoun claimed damage to the building, and the mortgage company sued for the amount due on the mortgage. The insurance company answered, admitting the issuance of the policy as stated by plaintiffs in their complaint, and that there was a mortgage clause in favor of the American Trust Company. It denied the extent of the damage, both to the building and the furniture, and denied the right of the plaintiffs, or either of them, to recover any sum whatever. It alleged that'in the policy special reference was made to the assured’s application, and the agreements therein, which were made part of the policy. The facts are practically undisputed. There was a judgment in favor of the American Trust Company for the amount of its mortgage, with interest, 12 per cent, damages and $100 attorney’s fee; there was also a judgment in favor of Henry for $100,12 per cent, damages and attorney’s fee of $50; and a judgment in favor of the. insurance company as against Calhoun. The insurance company prosecutes this appeal to reverse said judgments.

Appellant does not controvert the fact that the policy when issued was valid, nor does it deny that there was a mortgage clause in favor of the American Trust Company. It is conceded that the premiums had been paid, and that proof of loss had been made. Appellant contends, however, that the case should be reversed because Henry, to whom the policy had been issued, had sold the real property prior to the damage done to it, and that he was for that reason not entitled to recover, and that no one else was entitled to recover. Appellant cites and relies on Langford v. Searcy College, 73 Ark. 211, 83 S. W. 944. This case, however, has no application. It is true that the contract of insurance was said in that case to be a personal contract, but in that case there was no clause in the policy for the benefit of any person other than the insured. A purchaser of property, which has been insured, acquires no interest under the insurance policy, because, as said in the above case, it was a personal contract, and it did not run with the title to the property.

Attention is next called to the case of Lett v. Guardian Fire Ins. Co., 125 N. Y. 82, 25 N. E. 1088, which also holds that a policy of insurance is a personal contract, and that the obligation does not pass to the purchaser. Attention is also called to 14 R. C. L. 1114 and 1115. All of these authorities are to the same effect, and all hold that the obligation of the insurance company does not pass to the purchaser'of the insured property, but that is not the question here. Here the policy itself expressly provided that the loss or damage, if any, under this policy,-shall be payable to the American Trust Company of Jonesboro, Arkansas, as first mortgagee, as its interest may appear. It therefore appears that the loss was made payable to the American Trust Company, made for its benefit, and it was the proper party to maintain the suit. Our statute provides “that every action must be prosecuted in the name of the real party in interest,” etc. Section 1089, C. &. M. Digest. Burlington Ins. Co. v. Lowery, 61 Ark. 108, 32 S. W. 383.

The policy also provides that the insurance as to the interest of the mortgagee only therein shall not be invalidated by any act or negligence of the mortgagor or the owner of the within described property, nor by any foreclosure or other proceedings, or notice of sale relating to the. property, nor by any change in the title or ownership in the property, etc. It will therefore be seen that the policy itself provides for a recovery or authorizes a recovery by the mortgagee, notwithstanding the mortgagor had sold the property. The fact that the mortgagor by selling the property or conveying it will make the policy void as to the mortgagor does not make the policy void as to the mortgagee, especially where the contract expressly provides that it” shall not do so, as it does in this case. But the appellant contends that the mortgagee deprived itself of the right to maintain the suit by selling the note and mortgage to Mrs. Blum. In this case, however, it appears that, while the mortgagee had sold the notes and mortgage to Mrs. Blum-, it had guaranteed the payment and was still liable to Mrs. Blum, and it was the only party which could have maintained the suit. Mrs. Blum had no interest in the policy, and its obligation did not run with the title to the property, and it was not insured for her benefit. This feature of the case is exactly similar to those cases relied on by appellant, beginning with the 73 Ark., supra, where it is.held that the contract is a personal one and does not run with the title to the property. Mrs. Blum acquired no interest in the policy by reason of purchasing the notes and mortgage, and the American Trust Company did not deprive itself of the rights under the policy by selling the notes and mortgage and guaranteeing to Mrs. Blum the payment. In other words, it was still liable, and there was nothing in the transaction that would deprive it of the right to maintain the suit. Mrs. Blum was not mentioned in the mortgage, it was not made for her benefit, and she was not a proper party and could not have maintained the suit. The mortgagee alone had the right under the policy to sue, and the transfer of the notes and mortgage under the circumstances in this case did not deprive it of that right. There was no change that was detrimental to the insurer, and this court has held that changes referred to in the policy mean changes detrimental to the insurer. National Fire Ins. Co. v. Avant, 167 Ark. 307, 268 S. W. 20.

“Under modern practice acts, however, requiring all actions to be brought in the name of .the real party in interest, it is the general rule that, where the mortgage equals or exceeds the loss under a policy containing a loss payable clause, the mortgagee is the proper person to bring suit, even though he has assigned the mortgage, if he has guaranteed payment. ’ ’ 14 R. C. L. 1427. Phenix Ins. Co. of Brooklyn v. Omaha Loan, etc., Co., 41 Neb. 834, 60 N. W. 133, 25 L. R. A. 679.

Appellant contends, however, that the mortgagee is not entitled to recover, because it did not notify the insurance company of the change in ownership. The mortgage clause in the policy contains the following provision: “The mortgagee shall notify the insurance company of any change of ownership or occupancy or increase of házard which shall come to the knowledge of the mortgagee, and that fact shall be noted on the policy, and the mortgagee shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise, this policy shall be null and void. The mortgagee did not notify the insurance company. The clause requiring notice of change clearly indicates that a change increasing the hazard was meant. It is not contended that the change increased the hazard. His failure to give such notice would have been material only where it would have caused prejudice or increased the risk to the insurance company, and there is no pretense of such a thing here.” Whitney v. American Ins. Co., 6 Cal. Unrep. 220, 56 Pac. 50; Russell v. Cedar Rapids Ins. Co., 78 Iowa 216, 42 N. W. 654, 4 L. R. A. 538.

The property insured was sold by Henry to Calhoun. Calhoun also joined as plaintiff and sought to recover, but the court properly held that he was not entitled to recover. The company was under no obligation to him, and when he purchased the property he did not thereby acquire any rights in the insurance contract, and Henry by selling the property deprived himself of any right to maintain a suit for damage to the real property.

It is also contended by the appellant that Henry is not entitled to recover damage to personal property, because he had sold the real property. While the policy was written upon one paper and bore one number, it covered two separate pieces of property, insuring each in separate amounts against loss by fire or tornado. The building was insured for $700. The personal property in the house was insured for $300.

As said by this court: “In effect the policy constituted two contracts of insurance embraced in one paper. The cancellation and surrender of the one did not affect the other.” Globe & Rutgers Fire Ins. Co. v. Chisenhall, 162 Ark. 231, 258 S. W. 135.

•Sale of the real property therefore in this case did not avoid the policy as to the personal property. There was certainly nothing done which would in any way increase the risk. There might be some justification to argue that the sale of the dwelling would increase the risk as to the personal property against loss by fire, but it would certainly have nothing to do with increasing the risk as to a tornado.

Insurance contracts are to be construed like other contracts, and are construed most strongly against the insurance company which makes the contract. The purpose of providing in the policy against any change in interest or ownership of the property is for the benefit of the insurance company, and it is necessarily meant a change that will be detrimental to the insurance company.

The next contention is that the court erred in allowing damages and attorney’s fees. The statute provides that: “In all cases where loss occurs and the fire, life, health or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, 12 per cent, damages upon the amount of such loss together with all reasonable attorneys’ fees for the prosecution and collection of said loss,” etc. Section 6155, C. & M. Digest. It will be observed that the statute does not mention tornado insurance.

This court said: “But the provisions of the act only apply in cases where the loss occurs and a fire, life, health or accident insurance company-is liable therefor. It does not provide for the allowance of such damages and attorneys’ fees in case where a loss is caused by a cyclone, -and a cyclone insurance company is liable therefor. The act is highly penal, and it should not be held to apply to any loss or company that is not therein expressly named. It therefore should not be held to apply to cases where the loss is caused by cyclone and a cyclone insurance company is liable therefor.” Home Fire Ins Co. of Okla. v. Stancell, 94 Ark. 578, 127 S. W. 966.

Since the loss in the instant case was caused by a tornado, and the statute does not provide for the allowance of such damages and attorney’s fees in cases where the loss is caused by a tornado, it is not liable for such damages and attorney’s fees. The court properly instructed the jury, and under the policy no act of Calhoun or Henry could affect the rights of the American Trust Company. The policy itself provided that the American Trust Company’s rights should not be affected by any act of the insured. There was nothing done in this case by any one in any way which increased the risk.

It follows that the judgment in favor of the American Trust Company and the judgment in favor of Henry must be affirmed, but the judgments for 12 per cent, damages and attorney’s fees will be reversed, and the claim for such damages and attorney’s fees be dismissed. It is so ordered.


source: Caselaw Access Project

author: McHanbv, J.

license: Public Domain

text:
    Free v. Harris.
    Opinion delivered April 21, 1930.

      E. W. Brockman, for appellant.

      R. W. Wilson, for appellees.
   McHanbv, J.

Appellees are the widow and heirs at law of W. H. Harris, now deceased. In January, 1927, W. H. Harris and Julia Harris, his wife, executed and delivered a note, secured by deed of trust on 220 acres of land, to O. P. Schnyder for an indebtedness amounting to $4,525.30 at the date of foreclosure, June 17,1929. The deed of trust contained provisions by which dower and homestead were released, and waived the right of ap-praisement and redemption under the laws of this State. In December, 1927, Will Harris died intestate, leaving surviving him the appellees, the widow and five children, four of whom are minors. Julia was appointed adminis-tratrix of said estate.

The indebtedness represented by the note and deed of trust not having been paid, foreclosure proceedings were begun in November, 1928, in which the widow and all the heirs were made defendants. G-uardian ad litem was appointed for the minor defendants, who filed answer for them in January, 1929. The widow made no defense. On June 17, 1929, the complaint was amended so as to make the administratrix a party, and on the same day she filed, an answer admitting the plaintiff’s lien, and that it was prior to her claim as administratrix, and consenting that decree might be taken at any time. On the same day, June 17, decree was entered giving judgment against Julia Harris in the sum of $4,525.30 and costs, which was declared a first lien on the 220 acres of land. A sale of the land was ordered, a commissioner being appointed for this purpose, if the judgment should not be paid in five days, after advertisement, and upon terms fixed by law. A sale was had pursuant to the terms of said decree on July 31, 1929, and appellant, Free, being the highest bidder, became the purchaser on a bid of $7,000. Several other bidders were present, including Mr. C. H. Ilolthoff, who bid up to $6,600 for the land. The concluding clause in the decree is, “That the court does retain jurisdiction of this cause for the purpose of making such other and further orders as may he necessary for the protection of the rights of the parties hereto, and such others asmay become proper parties.”

Thereafter, on September 24, 1929', nearly two months after the sale to appellant, but before report of sale and confirmation, Julia Harris, as administratrix of said estate, filed "motion to set aside commissioner’s sale and to permit redemption,” in which it is alleged that the land was sold for an inadequate price, being worth $12,-500; that only the homestead and dower interest of Julia Harris were sold; that she, as administratrix,.was able, ready and willing to pay Schnyder his judgment, interest and all court costs, which amount she tendered in open court. She therefore prayed that the sale be set aside, confirmation be denied, and that she, as administratrix, be permitted to redeem. The court granted the prayer of this motion, and the purchaser at the sale has appealed from this latter decree.

It will be seen that the only ground alleged for setting* aside the sale and refusing’ confirmation was the inadequacy of the price for which the sale was made. There is no allegation of fraud or other inequitable conduct attendant upon the sale, and the court specially found from the evidence adduced on the motion that "there was no fraud or unfairness in the conduct of the sale,” which finding is supported by all the evidence. Mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other inequitable conduct in connection with the sale, is of itself insufficient to justify the court in setting the sale aside and refusing confirmation. Marten v. Jirkovsky, 174 Ark. 417, 295 S. W. 365; Alexander v. American Bldg. & Loan Assn., 180 Ark. 251, 21 S. W. (2d) 156, and cases cited in both. In Marten v. Jirkovsky, supra, this court quoted from George v. Norwood, 77 Ark. 216, 91 S. W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171, the following: "When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it. * * * There is a uniform current of decisions settling’ that official sales will not be opened on mere representations that more may be obtained for the property. This well known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry, to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding- than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial.”

While it is alleged that the sale price was inadequate, the preponderance of the evidence is that such is not the case. Mr. Holthoff and others testified that the land was worth $45 to $50 per acre, but on cross-examination admitted that '$7,000 was a fair price. Appellant testified that his bid was all the land was worth, and the reason he wanted to buy was that it joined his land, and he would get the benefit of the trade from the tenants thereon. He also said that since $7,000 was the full value of the land, he would not lose anything- if the sale were set aside. Whatever he may have meant by that remark, he is here insisting on his rights as purchaser. Therefore, we find and hold that the consideration was not only not grossly inadequate, but that it was fair and reasonable.

Counsel for appellees seek to uphold the decree on several grounds:

1st. That, under the decree of foreclosure, only the dower and homestead rights of Julia Harris were sold. The decree gave judgment against Julia Harris only, and ordered a sale of the land in satisfaction thereof. No judgment was taken against the heirs, and properly so, as they did not execute the note. The amount of the judgment was declared to be a first lien on the land, for the satisfaction of which a sale was ordered. We are therefore of the opinion that the whole title passed by the sale, and not merely the dower and homestead rights of the widow, as the deed of trust conveyed the whole title as security for the debt.

2nd. That the foreclosure decree was premature by reason of the provisions of § 1288, C. & M. Digest. All the parties to the action were served, and had answered more than 90 days or were in default before the decree, except the administratrix. She answered that she had no claims prior to thé lien of the plaintiff and consented of record that decree be taken at once. She cannot therefore complain now because she consented then for an immediate decree.

3rd. The inadequacy of the price bid has already been discussed. Julia testified that she thought the mortgage covered only a part of the land, and that 401 acres were left out. But she does not say That appellant or any one else connected with the sale so advised her. She knew of the suit, was served with summons, filed an answer as administratrix, knew the land covered by the deed of trust was to be sold, and herself signed the deed of trust.

4th. That the court had full control of the cause because of the concluding language of the decree above quoted. The court had full control to make all necessary or proper orders, but not to refuse to confirm a valid sale held pursuant to the decree, for a fair consideration, and without fraud or unfairness in the conduct of the sale. Judge Battle, in Colonial & U. S. Mortgage Co. v. Jones, 65 Ark. 152, 45 S. W. 60, announced the true rule, that confirmation will not be denied where “the property sold has brought its market value, and the purchaser and those conducting or controlling it have committed no fraud, unfairness or other wrongful act injurious to the sale, and there is no occurrence, or special circumstance affording, as in other cases, a proper ground for equitable relief. ’'

5tli. Anpther ground relied on is that a portion of the property is the homestead of the widow and minors, and that this fact is sufficient to justify the court in refusing confirmation. We cannot agree. The mortgage or deed of trust was signed and acknowledged by the father and mother, which they had a lawful right to do without regard to the children. As heirs and as minors, they have no. greater right than he would have if living. The homestead right was released, and the right to redeem waived.

6th. It is finally said appellant has suffered no loss, according to his own testimony. This may or may not be true if the decree appealed from is permitted to stand. Be that as it may, as wo have already shown, appellees have shown no ground why confirmation should be denied.

The decree is therefore reversed, and the cause remanded -with directions to overrule the motion, confirm the sale on the payment of the sum bid with interest. Costs will be adjudged against the appellees.

Humphreys and Mehaeey, JJ., dissent.


author: Butler, J.

text:
    McCaskey Register Company v. McCurry.
    Opinion delivered April 21, 1930.

      V. D. Willis, for appellant.

      Shouse 3 Rowland, for appellee.
   Butler, J.

Appellee executed a note to appellant payable in installments for the purchase price of an article referred to in the exhibits and testimony as a “register” and again as a “filing cabinet.” Appellee defended in an action to enforce the payment of the note on the ground of failure of consideration. From an adverse verdict appellant has appealed, and assigns as error the action of the trial court in refusing to exclude from the jury a part of the opening statement of ap-pellee’s counsel.

1. In the bill of exceptions appears the following: “Plaintiff’s objection to the opening statement of counsel for the defendant. The plaintiff desires to object to the statement of counsel for the defendant which he has just made to the effect that the MeCaskey Register Company is one of the crookedest concerns operating in this section of the State, and his statement to the effect that a number of witnesses will swear that they have been crooked out of money by the said McCaskey Register Company, and ask the court to exclude such statements upon the ground that if the said witnesses were to swear to the statement it would be incompetent and irrelevant and immaterial to the issues involved in this case.” The motion was overruled by the court, and the appellant saved his exceptions.

This court has been called upon in many cases to determine whether remarks of counsel were improper, many of which have been reversed and others sustained as properly within the privilege of counsel.

Because of the infinite variety of the alleged improper remarks complained of in the adjudicated cases, no hard and fast rule can be laid down on the subject. The control of the conduct of the trial is within the sound judicial discretion of the trial judges, and a wide range of discretion must necessarily be allowed them in dealing with the subject, for they can best determine at the time the effect of any improper conduct or the alleged unwarranted language of counsel. This discretion, of course, is not an arbitrary one, but a judicial discretion, the exeivcise of which is a matter of review.

In determining whether the conduct or language permitted to be indulged in is ground for reversal, the true test appears to be whether an undue advantage has been secured which has worked a prejudice to the losing party not warranted by the law and evidence of the case.

This subject has been considered from time to time by this court, and a number of cases in which these questions were raised may be found cited by the court in the case of Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256-8, 85 S. W. 428.

In view of the lack of conflict in the evidence and its nature, we are unable to see how the statement complained of could have been prejudicial.

It will be noticed in the instant case that the language complained of is not set out in the bill of exceptions, bnt only appellant’s conception of its purport and meaning, which is not sufficient to call for a review of the trial judge’s holding, because he might have concluded the language used not susceptible of interpretation placed upon it by appellant’s counsel.

2. Appellee contended that the register purchased was worthless because it could not be opened. A deposition of a witness was taken in which there was testimony that the witness had examined the register in question, and had found that it could not be used for any purpose because the drawers could not be withdrawn. This testimony was relevant and competent.

The appellant filed a general objection to the admissibility of the deposition, and assigns as error action of the court in permitting the deposition to be offered in evidence over his objection. In this the court did not err. As said in St. L. I. M. & S. R. Co. v. Taylor, 87 Ark. 334, 112 S. W. 745: “If it be conceded that certain portions of it were hearsay and improper, the appellant did not object specifically to any parts of the evidence. Its motion to exclude was general, and, as the testimony was competent, and some portions at least were relevant to the issue, appellant’s objection cannot avail.” See also St. L. I. M. & S. R. Co. v. Bryant, 92 Ark. 425, 122 S. W. 996; Clardy v. State, 96 Ark. 57, 131 S. W. 46; Martin v. Monger, 112 Ark. 394, 166 S. W. 566.

3. In the deposition to which general objection was made the witness testified that he had examined other registers of the same make which had been purchased for use as that of appellee, and that neither of these could be used because of defects similar to that complained of by appellee. There was no objection made to the introduction of this testimony except the general objection to the entire deposition, so that there was no error on the part of the court in permitting this testimony to be read, besides, we think it was competent under the rule that other transactions may be testified to, if they are of the same nature ánd character, as tending to show a plan or general conduct. Meyers v. Martin, 168 Ark. 1028, 272 S. W. 856, and cases therein cited.

4. The testimony in this case tends to show that the register or filing cabinet was purchased by appellee for use in his business; that it was purchased from a traveling salesman who exhibited a picture of the device, and the appellee purchased without having an opportunity of inspecting or trying out the article. When it reached Mm, he discovered that he could not open it and called in several to assist him. None were able to pull out the drawers, and the handles were broken in attempting to do so. Complaint was made to the seller, who promised to send some one to condition it, but this was never done. When the first installment fell due, appellee refused to pay, and this suit was brought to recover the face of the note. It provided that all of its installments should become due in default of the payment of any one of them.

It is well settled that where a chattel is sold to be used for a particular purpose, and vendee has not had the opportunity to inspect it, he must necessarily trust to the judgment and good faith of the vendor that the article purchased is reasonably fit for the purpose for which it is intended, and the law implies the warranty that it is of such character. In this case, if the register was for use in appellee’s business and to aid him in keeping his accounts, and if it could not be opened, it was worthless for the only use to which any one could put it. This principle is announced in a number of our cases which are approved and cited in Western Cabinet & Fixture Mfg. Co. v. Davis, 131 Ark. 382, 181 S. W. 273; and in Dike v. Magdalina, 171 Ark. 225, 283 S. W. 374.

In the instant case the court charged the jury in accordance with the principles announced in the cases supra, and the verdict was in accord with the charge to the jury, and supported by the evidence. No error appearing, the judgment is therefore affirmed.


author: Kirby, J.,

text:
    First National Bank v. Russell.
    Opinion delivered April 21, 1930.

      Lake, Lake c& Carlton, for appellant.

      Abe Collins, for appellees.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in not directing a verdict in its favor since there is no substantial conflict in the testimony, and we have concluded that the contention must be sustained. Appellees do not deny having discounted the Thomas note with appellant bank -without disclosing to it any information of the contract binding them to the crediting of $1,000 on the note upon the furnishing of an abstract by the Thomases showing a clear title to the 40-acre tract of Missouri land during the life of the deed of trust securing the payment of the note, nor that appellant bank duly entered the credit of $1,000 claimed by the Thomases upon showing the clearing of the title to the 40-acre tract of land; their contention being that the crediting of such amount on the note was unwarranted, since the completed abstract did not show a clear title to the 40-acre tract of land within the meaning- of their contract.

The abstract of title as first made was presented to appellees and their attorney, Mr. Jackson, who pointed out three alleged substantial defects in it, and refused to approve same. Other attorneys were employed by the Thomases to clear the defects in the title, one of which was done by a successful suit to quiet the title, the others were shown to be without merit because of curative statutes of the State of Missouri, and another by the execution of a deed from one of the parties grantor in one of the conveyances who lacked a few days of being of age when the first conveyance was made, which fact however did not appear in the abstract of title, there being nothing on the face of it indicating the minority of this grantor.

The Thomases were only bound under the contract to furnish an abstract showing a merchantable or marketable title to the 40-acre tract of land, the expression “clear title” in the contract meaning no more than that, one free from material defects. Since the abstract of title as corrected does not disclose any defect in the record title which could be cured only by parol proof or a title dependent upon parol proof, the question of whether the title is a marketable one was one of law for the court to determine — a question of legal construction. 27 R. C. L. 491; Townsend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 739; Mead v. Altgeld, 136 Ill. 298, 26 N. E. 388; note 52 A. L. R. 1462.

The court erroneously submitted the question to the jury. The record discloses that the objection (3d) made to the decree to quiet title did not arise out of the proceeding, but was attempted to be interposed by an affidavit disclosing that one of the heirs of the deceased grantor was a resident of the county where the suit was brought and constructive service duly had — an attempted collateral attack or showing that a judgment duly rendered upon constructive service was invalid. The question of this conveyance relative to its invalidity on account of the acknowledgment shown to have been taken by a justice of tbe peace of -the 'State of Arkansas, an officer not authorized to take acknowledgments under the statutes of Missouri, was probably cured any way by the curative statute of 1919.

The. objection No. 1 to the abstract to entry No. 13 was that the conveyance from Ira Thomas and wife was not on a uniform blank as provided by the Missouri statute for a warranty deed. Appellee’s attorney, however, stated in making- this, objection that he did not examine the opinions of the appellate court of Missouri to ascertain whether this was material or only a matter of form. The operative words in the deed are “do hereby grant and warrant to Clara R. Thomas, a widow, the real property described” and 'were sufficient to convey the title. 18 C. J. 178; State v. Kelliher, 49 Ore. 77, 88 Pac. 867; Horton v. Murden, 117 Ga. 72, 48 S. E. 786; San Francisco, etc. R. Co., v. Oakland, 43 Cal. 502; McDill v. Meyer, 94 Ark. 615, 128 S. W. 364.

The defects complained of in the other conveyances shown in the abstract were all cured by the statute of Missouri, § 368, Revised Statutes of Missouri, 1919, having been recorded more than a year prior to the commencement of the suit in the circuit court. 1 R. C. L. 292; 1 C. J. 877-78; note 19 A. L. R. 1080.

Appellee’s attorney upon his last examination of the abstract abandoned his- objeqtipn to entry No. .19, admitting it was sufficient..........

Appellees-contend that this suit was-premature, having been brought before the corrected abstract was submitted to and passed upon by them, but they insist that the-appellant’s authority under- the• assignment of the note was broad enough to include the entering of the credit for the $1,000 in the event the Thomases furnished clear title to the land, and it is unquestioned that the corrected abstract was furnished to appellant bank with a demand made for the credit of the $1,000 on the note purchased by it from appellees, and that- the-credit was entered thereon by the bank before this suit was brought. It could make no difference in appellee’s liability under the circumstances of the case that suit was 'brought before presentation of the corrected abstract showing a clear title to the land in controversy since appellant was bound to enter the credit upon the making of such showing, and appellant could enter the credit on the note as appellees were bound to do, taking no risk in doing so, other than correctly deciding that the abstract presented showed the title clear in accordance with the contract.

The court having held that the abstract showed such title, appellees cannot escape their liability under the contract nor avoid the repayment of the amount credited on the note which was sold to or discounted with appellant bank without the disclosure of any right upon the part of the makers to a reduction of the amount of the note as made and paid for.

It follows that the court erred in not directing a verdict for said amount sued for, and the judgment is reversed, and the cause will be remanded with directions to enter a judgment in appellant’s favor accordingly. It is so ordered.


author: Hart, C. J.,

text:
    American Disinfecting Company, Inc. v. Franklin County.
    Opinion delivered April 28, 1930.

      J. G. Benson, for appellant.

      R. 8. Wilson, for appellee.
   Hart, C. J.,

(after stating the facts). Section 1976 of Crawford & Moses’ Digest reads as follows:

“No county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended, and in no event shall any county court or agent of any county make any contract in excess of any such appropriation made, and the amount of such contract or contracts shall be limited to the amount of the appropriation made by the quorum court. ’ ’

This section of the Digest applies to Franklin County, and the sheriff had no authority to purchase the disinfectant from appellant. There was no showing made that an appropriation had been made which would warrant the purchase of the disinfectant; and, in the absence thereof, the purchase could not be made. Madison County v. Simpson, 173 Ark. 755, 293 S. W. 34.

In the absence of an appropriation for the purchase, the county judge could neither have made such a contract on his own motion, nor have ratified the contract made by the sheriff. In Leatham & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, it was held that the county court might ratify an unauthorized contract made in behalf of the county, if the contract was one the county could have made i.n the first instance. The object of providing in advance for the appropriation was to prevent an expenditure for county purposes of an amount greater than the current income. Amendment No. 10, Constitution of Arkansas; State use of Prairie County v. Leathem, 170 Ark. 1004, 282 S. W. 367; Dixie Culvert Co. v. Perry County, 174 Ark. 107, 294 S. W. 381; and Polk County v. Mena Star, 175 Ark. 76, 298 S. W. 1002.

' It follows that the judgment of the circuit court was correct, and it will be affirmed.


author: Smith, J.

text:
    Osburne v. State.
    Opinion delivered April 28, 1930.

      Coleman & Reeder, for appellant.

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

Appellant seeks by this appeal to reverse the judgment of the court below sentencing’ her to a term of nine years in the penitentiary upon the charge of murdering Maurice Osburne, her husband. The errors assigned are that the testimony is insufficient to support the verdict, and that error was committed in giving and in refusing to give certain instructions.

As to the sufficiency of the testimony, but little need be said. That the deceased was murdered — assassinated —is certain, and that his wife was present and participating in the atrocious crime appears equally so. She admitted that an illicit relation existed between herself and one J. P. Barber, and that her husband carried a $2,000 insurance policy on his life, with double liability in case of accidental death, of which she was the beneficiary.

Deceased and his brother, Charles, worked for their father in a store, and on the night of July 1, 1929, they closed the store and drove home in a car belonging to deceased. Charles jumped off the running board of the car at his own home, which was about 260 yards from that of his brother, who continued on to his home. Charles had been at home only a few minutes when he heard three shots fired, the second and third in rapid succession, following a short interval after the first. ‘Charles left at once for the scene of the shooting, and overtook his mother, who was also on the way. They went into the house, and found Maurice lying on the kitchen floor dead.3 He had been shot in the face and twice in the back, and his murderer had beaten him over the head with a gun, the stock of which had been broken. There were powder burns in the back, which indicated that those shots had been fired at close range. Appellant was lying on the floor of a front room, and when deceased’s mother asked, ££My Hod, Norma, did you do this?” appellant answered, ££No, he was cleaning his gun.” Appellant made conflicting statements as to the manner in which her husband met his death, all of which were obviously false, and at the coroner’s inquest admitted that Barber might have been at her home when the killing occurred, and that he might have shot her husband. Barber, who was seen at the home at about sundown, fled the community, and had not been arrested at the time of the trial from which this appeal comes. The testimony was also to the effect that the furniture in the house had been rearranged to afford the assassin an unobstructed shot at deceased as he came into his home, and it was only poor markmanship which made more than one shot necessary. Had the first shot been fatal, as was, no doubt, intended, the story that deceased had shot himself while cleaning his gun would have been more plausible. This was, no doubt, the story appellant had planned to tell to explain the death of her husband, but the deceased’s brother and mother arrived on the scene before time was afforded to adjust the story to the unexpected circumstances. Appellant did not testify in her own behalf at the trial from which this appeal comes, and the implication is that she fainted when her husband was shot, and was still unconscious when the deceased’s brother and mother arrived; but, even so, tbis does not explain the conflicting and untrue statements made by appellant as to the circumstances attending the killing of her husband.

Appellant requested, but the court refused to give, an instruction numbered 4, which was to the effect that “where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis except that of the guilt of the accused.”

This statement of the law has been approved by this and many other courts, and it would be well to give such an instruction in a proper case. But it may be doubted whether the State relied upon circumstantial evidence alone in the instant case. It is true that no witness who testified in the ease saw the killing, but numerous statements of appellant herself relating thereto were offered in evidence, and the inferences deducible therefrom were of an incriminating character. The. inference:is fair and reasonable from appellant’s own admissions that she must have known how her husband met his death, and her improbable and untrue statements in regard thereto support the conclusion that she was a party to his murder. There was therefore no error in refusing the instruction.

Moreover, we have' held that, while an instruction of the character of the one requested should properly be given in a case where the State relies entirely on circumstantial evidence, yet the failure so to instruct the jury was not error where the jury had been instructed fully and fairly on the question of reasonable doubt and the presumption of innocence which accompanies the defendant throughout the trial, and that a conviction could not be had unless the jury found beyond a reasonable doubt that the defendant was guilty as charged. Payne v. State, 177 Ark. 413, 6 S. W. (2d) 832; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946; Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980; Whitney v. State, 176 Ark. 771, 4 S. W. (2d) 9; Barton v. State, 175 Ark. 120, 298 S. W. 867; Bost v. State, 140 Ark. 254, 215 S. W. 615; Thompson v. State, 130 Ark. 217, 197 S. W. 21; Jones v. State, 61 Ark. 88, 32 S. W. 81; Reed v. State, 54 Ark. 621, 16 S. W. 819; Green v. State, 38 Ark. 304. Instractions to this effect were given in the instant case, and we conclude therefore that no error was committed in refusing to give instruction numbered 4.

Exceptions were saved to the giving of instructions numbered 6, 7 and 9. Instruction numbered 6 declared the law if appellant herself fired the fatal shots, while instructions numbered 7 and 9 declared the law if it were found that Barber fired them. The objection to these instructions is that they are abstract. We do not think so. The instructions go to the very heart of the case. No one could know whether appellant herself fired the fatal shots, or stood by and aided Barber to do so, but she was equally guilty in either event, and it was proper for the court to so declare the law, and this the instructions did. The instructions were not abstract, as we think it sufficiently appears, from the facts already stated, that, if appellant did not kill her husband — and she may not have done so— she was nevertheless present, aiding and abetting the person who did.

No error appears, and the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Carter, Blevins and Burks v. State.
    Opinion delivered April 28, 1930.

      W. R. Donham, for appellants.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellees.
   Humphreys, J.

The appellants were separately indicted in the circuit court of Saline 'County for perjury, and the cases were consolidated for trial, which resulted in verdicts and judgments of conviction of each, imposing a penalty of one year in the State penitentiary upon them, from which is this appeal.

A reversal of the judgments is first sought upon the grounds that the' indictments '-contained no negation • of the truth of the alleged false testimony, and no facts showing the materiality of the alleged false testimony.

The alleged false evidence of each appellant set ont in the respective indictments is, with sliglit variances, the same. Copying from the Blevins ’ indictment the alleged false testimony is as follows: * * * “did then and there unlawfully, willfully, feloniously, falsely and corruptly swear and testify that he, the said Troy Blevins, on a Sunday around the first of August, 1929, saw Ira Bucka-lew and Mart Ogle firing the woods; that Mart Ogle had a fire built up around a pine stump; that Ira Buckalew did not have anything in his hands at'first, but he took up a pine torch, and, when he, the said Ira-Buckalew, saw him, the said Troy Blevins, the said Ira Buckalew dropped the torch and left; that he, the said Troy Blevins, positively identified the said Ira Buckalew and Mart Ogle, and knows they were setting the woods on fire, and that the fire was on the Burks property.”

The rule is that it is not necessary to negative the truth of the alleged false testimony in an indictment if the alleged false testimony itself necessarily implies that its Converse is true, and what the converse is. In that event the implication is equivalent to such an allegation. Loudermilk v. State, 110 Ark. 549, 162 S. W. 569. The necessary implication from the allegation in the instant case is that appellant did not see Ira Buckalew and Mart Ogle fire the woods back of Billy Burk’s property in Saline County, and that said parties did not fire the woods. The averment in the indictment was sufficient without an express negation therein as to the truth of the alleged-false testimony.

The contention that the indictment is fatally defective for failure to set out facts showing the materiality of the alleged false testimony is based upon the failure to set out therein the crime with which Ira Buckalew and Mart -Ogle were charged before E. T. Holliman, a justice of the peace in and for Saline township, Saline County, in which appellants testified, and the alleged fals.e. testimony concerning an offense committed in Saline County. The indictment alleged false testimony in a certain criminal case in the justice court of E. T. Holliman in Saline township, Saline County, who had jurisdiction to try said case, wherein the .State of Arkansas was plaintiff and Ira Buckalew and Mart Ogle were defendants, and also alleged that the false testimony given hy them was to the effect that they saw said defendants, Ira Buckalew and Mart Ogle, firing the woods back of Billy Burks’ place. The necessary inference from these allegations was that the defendants were charged with firing the woods within Saline township, Saline County. The justice of the peace would not have had jurisdiction to try the case, had the offe'nse charged been committed outside his territorial jurisdiction. There was an affirmative allegation in the complaint that the alleged false testimony was material in the case, so, when each indictment is read as a whole, it is apparent that appellants were charged with falsely swearing in the case in which Ira Buckalew and Mart Ogle were charged with the crime of-setting fire to the woods back of Billy Burks’ place in Saline County. The crime charged against Ira Buckalew and Mart Ogle was inferentially set out in the indictments, and the venue was sufficiently alleged.

Appellants also contend for a reversal of the judgments on the ground that the evidence was insufficient to show that the crime charged against Ira Buckalew and Mart Ogle, in which it was alleged appellants testified falsely, occurred in Saline County. The record reflects that the affidavit in the case of State v. Ira Buckalew and Mart Ogle alleged they committed the offense of firing the woods back of Billy Burks’ property in Saline County, and all of the testimony was to the effect that the offense was committed back of Burks’ property. This testimony was sufficient to establish the venue of the crime in which Ira Buckalew and Mart Ogle were tried in Saline County.

It is also contended that the judgments should be reversed because the court allowed T. E. Holliman and Elizabeth Oanaday to testify concerning the nature of the offense for which Ira Buckalew and Mart Ogle were tried, but this contention is based upon the erroneous assumption that there was no allegation in the indictments as to the offense against them having been committed in Saline County.

Appellants also contend that the trial court erred in giving instructions numbered 2, 3 and 4 submitting the question of the materiality of the alleged false testimony to the jury. This contention is based upon the erroneous assumption that there was no allegation of fact in the indictments to show that the alleged false testimony was material, and no evidence in the record to show what the defendants testified to seeing occurred in Saline County. As there was no dispute about the facts sworn to, the court should have told the jury that the testimony -was material. Foster v. State, 179 Ark. 1084, 20 S. W. (2d) 118. In submitting the question of materiality to the jury, m> prejudice therefore resulted to appellants.

Appellants also contend for a reversal of the judgments because the court refused to give instruction No. 6 requested by appellants, which is as follows: “The mere fact that the prosecuting attorney may have inserted in the information filed in the justice of the peace court that the offense of firing the woods happened on the fourth day of August cannot be considered by you as evidence in this case for any purpose whatever.”

This instruction was not requested until after the jury had retired to deliberate upon the case, and it was in the discretion of the court at that time to refuse to give the instruction. Without deciding the correctness of the instruction as a matter of law applicable to the facts, appellants should have requested it before the cause was submitted, and cannot complain because the court refused to give it after the cause was submitted to the jury.

No error appearing, the judgment is affirmed.

Mr. Justice Btttler dissents.


text:
    Winton v. Bartlett.
    Opinion delivered April 28, 1930.

      W. E. Spence, for appellants.

      Holifield S Upton and Harrison, Smith & Taylor, for appellees:
   Humphreys, J.

This is an appeal from a judgment of the circuit court of Clay County, Eastern District, First Division, sustaining a demurrer to a complaint filed therein by appellants and, upon their failure to plead further, dismissing same. It was alleged in their complaint that they were duly appointed and qualified commissioners of Central Clay Drainage District in said county, which was organized by special act 317 of the Acts of 1911, having been appointed thereto by orders of the county court of Clay County on April 21,1929, and June 15,1929, which appointments were authorized under the provisions of acts 227 of the Acts of 1927 and 256 of the Acts of 1929; and it was further alleged that appel-lees had usurped the offices of directors of said district and excluded appellants therefrom, and, without authority of law, were withholding from appellants the books, papers and other things pertaining to said district and wrongfully and without right or authority were excluding appellants from the office of directors of said Central Clay Drainage District and precluding each of them from performing his duties — with a prayer for judgment against appellees for the possession of said office and all books, papers and effects pertaining thereto.

Appellees, claiming to be directors of said district under the provisions of the act creating same and amendments thereto, passed by the General Assembly prior to said acts 227 of 1927 and 256 of 1929, filed a general demurrer to the complaint of appellant attacking the constitutionality of said acts 227 of 1927 and 256 of 1929.

The ground upon which appellees attack act 227 of the Acts of 1927 is that the act offends against article 5, § 23, of the Constitution of 1874, which provides that “No law shall be révived, amended, or provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended or conferred shall be re-enacted and published at length. ’ ’ Said act is not in conflict with said section of the Constitution, as same did not attempt to revive, amend or extend the provisions of the special act .creating’ said drainage district, nor any other special act creating drainage districts in the State. The title thereof shows that it was intended to be and was an act in aid of drainage districts formed under special law and not an effort to amend or extend the provisions of any of them. The preamble thereto recites in so many wrords that under the restrictions of the Constitution it was impossible to amend special laws theretofore enacted by the Legislature.- The act in question is a general law placing drainage districts, created by special acts with reference to procedure therein and thereafter under the terms of the general law as provided in act No. 279 of the Acts of 1909, as incorporated in Crawford & Moses’ Digest in §§ 3607-56, inclusive. The act within itself was an independent complete act, and adopted by reference to the procedure outlined in general act number 279 of the Acts of 1909, among other things, empowered the county court or the county judge in vacation to appoint commissioners of any drainage district. The act comes within the class of statutes, known as reference statutes, which do not impinge upon the constitutional limitations contained in article 5, § 23, of the Constitution of 1874. State v. McKinley, 120 Ark. 165, 179 S. W. 181; Rouse v. Road District, 154 Ark. 218, 242 S. W. 68.

Our attention is called to tlie latter clause in the proviso of § 1 of act 227 of the Acts of 1927 to the effect that commissioners and directors of special drainage districts in office at the time of the passage of the act should not he displaced. This, of course, could only mean that their offices could not be filled by an order of the county court until the expiration of their respective terms or until a vacancy occurred. The complaint in the instant case alleged that the appellees were usurpers of the district, and were acting without authority of law.

For the purpose of the instant case, it is unnecessary to pass upon the validity or invalidity of act 256 of the Acts of 1929 as the procedure for the appointment of commissioners in special drainage districts is the same under that act as under the provisions of act 227 of 1927, which we have ruled is not unconstitutional.

On account of the error indicated, the judgment is reversed, and the cause remanded with directions to overrule the demurrer to the complaint.


author: Kirby, J.

text:
    Morris v. Mullins.
    Opinion delivered April 28, 1930.

      WilUamson $ Williamson, for appellant.

      George W. Paries, for appellee.
   Kirby, J.

This suit was brought by 'appellant to recover the value of a $2.50 hog, costs and expenses, sold to him by appellee.

Appellee sold and delivered to appellant 3 liogs for $2.50 each, and Dave Nichols replevied one of the hogs after appellant had kept it and fed it for about 60 days. Appellant herein notified appellee Mullins of the suit, and was told by him to hold the hog and defend the suit. Appellant insisted that the hog was not worth a lawsuit, and appellee assured him that his title had been good, and that he would defend the lawsuit, and if appellant lost he would pay the costs. Appellant insisted that Mullins would better hire a lawyer, and that he did not do so and attempted to defend the suit himself. Mullins did not ask to be made a party to the suit, and appellant, not knowing that it could be done, did not ask to have him made a party. Upon losing the suit appellee insisted that appellant should appeal the case to the circuit court assuring him that he would sell some cotton, and repay the costs. Appellant replied that he would take the appeal if appellee would pay the costs and make an appeal bond, as he did not care to assume the liability. Ap-pellee did not make the appeal bond-or pay the costs, but did leave one dollar -with the justice of the peace to pay for the transcript when the affidavit for appeal was made. No appeal was taken, and appellant paid the costs in that suit, and brought this suit- in the justice court against Mullins for the price of the hog, and costs, etc., and recovered judgment there, from which an appeal was taken to the circuit court, and from the judgment against him there appellant prosecutes this appeal.

The facts are virtually undisputed, and appellant insists that the court erred in giving over his objections for appellee instructions Nos. 2, 3 and 4. By these instructions the court told the jury that defendant in this case had a right to have the replevin suit for the possession of the hog prosecuted in the circuit court, and it was his duty after being notified of the suit to appear and defend it; that if Mullins had agreed to pay the costs of the replevin suit, and the suit went against Morris, appellant here, “and if there was no demand or request made on him that the case be appealed to the circuit court,” then Morris would be entitled to recover. In instruction No. 4, the jury were told that if they found that Mullins had agreed with Morris that he would pay the value of the hog and the expenses of the replevin suit if he lost it, and that Mullins, after the suit went against Morris in the justice court, had assisted in the trial “and demanded that Morris take an appeal to the circuit court” and paid the dollar for the transcript, and agreed to execute an appeal bond, and Morris failed to make the affidavit and take the appeal, the jury should find for defendant, appellee here.

The court erred in giving these instructions, which were peremptory in effect. Appellee was liable to repay to appellant the price of the hog sold him to which he had no title, recognized this liability, and insisted upon appellant resisting the replevin suit for its possession, agreeing to pay the costs of the suit if the judgment was against him. The judgment was rendered against him, and he had to pay the costs. Appellee could have made himself a party to this suit if he had desired to do so, and appellant could have had it done upon proper motion made, but he was not made a party.

Appellant was not bound to prosecute the replevin suit further than the justice court to determine his right to the ownership or possession of the property sold to him by appellee here, who was adjudged in that suit to have no title thereto, nor could appellee avoid his liability to repayment of the price of the hog, to which he had no title, sold by him to appellant, and the costs of the suit for determination of the title, which he agreed to and failed to pay, because appellant refused to prosecute an appeal in that case to the circuit court.

The court erred in instructing the jury otherwise, and for this error the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Louisiana & Arkansas Railway Company v. Muldrow.
    Opinion delivered April 28, 1930.

      Steve Carrigan and B. E. Carter, for appellant.

      JohnP. Vesey, for appellee.
   Kirby, J.,

(after stating* the facts). Appellant first contends that the evidence disclosed that appellee had assumed the risk, and that the court erred in not directing a verdict in its favor. It is conceded that the action was brought under the Federal Employers’ Liability Act, which it is correctly claimed did not abolish the defense of assumed risk. The evidence shows that, Avhile the men A\rere engaged in loading* the rails, four at each end thereof, the three men carrying the end of the rail with appellee turned loose without direction of the “caller” allowing all the weight of it to fall on appellee, resulting in or causing his injury. 'Certainly he had no means of knoAving or any intimation that they were going* to turn the rail loose, leaving the weight of it on him, in time to have protected himself against the negligence, this notwithstanding they were laughing and talking' while doing the work, and might not have heard or heeded the direction of the “caller.” This could have constituted no notice to him nor caused him to realize that they might negligently turn the rail loose before time or without throwing it on the car, leaving the whole weight to fall upon and be supported by him, and he1 could not, as a matter of law, be held to have assumed the risk of such negligence.

The court told the jury that one of the defenses was assumption of risk, and that, if it should be .found that appellee was injured because of the negligence of some agent or employee of appellant which contributed to or caused the injury, such negligence was one of the ordinary and usual risks of plaintiff’s employment, and was assumed by him. In the latter part of instruction No. '2, the court told the jury that appellee assumed the ordinary risks incident to his employment, but not the negligence, if any, of appellant or its employees, “unless he knew of such negligence before he was injured, if he was.” He also told the jury that, if they found he was injured in the manner alleged or claimed in the complaint, etc., they could find for him damages, “provided you do not find that his injuries, if any, arose from his having assumed the risks incident to his employment.” The court did not take from the jury, as contended, consideration of the defense of assumption of risk, and the authorities relied upon have no application here.

Neither vras error committed in giving appellee’s requested instruction No. 1, complained of, which told the jury that where the term “preponderance of evidence” and “greater weight of evidence” was used in the instruction, it did not mean a greater number of witnesses on one side or the other. These terms were defined properly in instruction No. 2, complained of, by saying “Does not mean necessarily the greater number of -witnesses, but means evidence which in your judgment is entitled to greater weight in respect to its credibility. ’ ’

It is next insisted that the verdict is contrary to the weight of the testimony, and, conceding this to be true, it was a matter to be addressed to the trial court and furnishes no grounds for reversal here, there being substantial testimony in support of it. Newhouse Mill & Lumber Co. v. Keller, 103 Ark. 538, 146 S. W. 855; St. L. Sw. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768.

No error was committed in refusing- to allow the witness Greene to state the full conversation that occurred in appellee’s attorney’s office in his presence relative to the cause of the accident. Appellant attempted to show indirectly that appellee had made a different statement as to the cause of his injury in stating the case to his attorney by showing’ that his attorney stated that if such was the case there was no liability. This was not a contradictory statement of the witness, nor a statement of his at all. Neither was it competent, since there was no relation of the entire statement of the facts by appellee to his attorney, nor an attempt to show any contradictory statement made by him there. ITis attorney might have been mistaken as to the law and liability in making any such statement, if he did make it, and it cannot be presumed that, because witness made a statement of the facts of the jury to his attorney, who expressed the opinion that there was no liability, that the witness had made a different statement to the one related on the stand.

It may be that appellee did not suffer the particular technically alleged injury as a result of the negligence of his fellow workmen in releasing the end of the steel rail and letting the entire weight fall or rest on him, but there was substantial testimony from which the jury could have found that he had suffered an injury to his back therefrom that caused the pain and physical disability complained of, and it was sufficient to show7 the injury and support the verdict. We find no error in the record, and the judgment is affirmed.


text:
    Merchants’ & Planters’ Bank v. Ewan.
    Opinion delivered April 28, 1930.

      Bogle £ Sharp, for appellant.

      June P. Wooten and Lee £ Moore, for appellees.
   Butler, J.

On the 6th day of March, 192'2, appel-lee, Parker C. Ew7an executed a note to the Merchants ’ & Planters’ Bank, appellant, in the sum of $15,000, due December 15, 1922, with eight per cent, per annum interest from date until paid, and to secure the payment of same, executed and delivered his mortgage of even date with the note to the bank covering certain real property in Monroe County, Arkansas. The mortgage wTas duly recorded in said county on March 8,1922. Payments beginning in 1923 were made and credited on the note each year down to and including the year 1928: None of these payments w7ere indorsed or noted on the margin of the record of the mortgage. There appeared, however, on the margin of the record of the mortgage this endorsement:

“For value received, we hereby release all of Block PP, Parker Ewan’s Subdivision, Clarendon, Arkansas. Signed, Merchants’ & Planters’ Bank, by "W. H. Brown, Cashier. 1-3-25. Attest John W. Hooker, Clerk.”

The appellees, Keesee, Moore, and Mnrphey, hold judgments against Ewan, and were proceeding to enforce the same by levying executions on the lands contained in the mortgage aforesaid when this suit was instituted by the appellant bank to foreclose its mortgage, and to enjoin the judgment creditors from further proceeding against said lands. The appellee judgment creditors defended on the ground, that the mortgage which appellant sought to foreclose and the lien thereof were barred by statutes of limitation.

The trial court found that the indorsement upon the margin of the record was not sufficient to toll the statute, and that the mortgage, so far as the same affected the rights of the judgment creditors, was barred by limitation. The court also by its decree settled the priorities of liens of the appellees, and that part of the decree is before us for review. The principal question to be decided is, “Was the indorsement made on the margin of the record a compliance with the statute authorizing the extension of maturity of a mortgage debt.”

The suit of appellant bank was instituted on the 28th day of June, 1929, more than five years after the .due date of the note secured by the mortgage, so that, as to appellees, the judgment creditors, the lien would be barred unless the notation on the margin of the record was made within five years of the due date, and which would be a sufficient compliance with § 7408, Crawford & Moses’ Digest. This section is as follows: “In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given, provided, when any payment is made on any such existing indebtedness, before the same is barred by the statute of limitation, such payment shall not operate to revive said debts, or to extend the operations of the statute of limitation, with reference thereto, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, indorse a memorandum of such payment with the date thereof on the margin of the record where such instrument is recorded, which indorsement shall be attested and dated by the clerk.”

The appellee contended, which contention was upheld by the court below, that the indorsement supra did not comply with the statute just quoted, in that it failed to show a payment on the mortgage debt, and if a payment was shown it fails to state the date such payment was made, both of which are required by the statute. This court has had occasion to construe this statute a number of times, and has held that when a debt secured by a mortgage is apparently barred by limitation, and no payment which would stay the limitation is indorsed on the margin of the record, it becomes as to third parties an unrecorded mortgage, and constitutes no lien upon the mortgaged property as against them, notwithstanding they have actual knowledge of the execution of the mortgage, and notwithstanding the fact that payments might have been made on the note which it secured.

In Clark v. Lesser, 106 Ark. 207, 153 S. W. 112, cited by appellee, the following indorsement on the margin of the record was held not to be sufficient compliance with the statute, the indorsement being-, “There beinga balance due on the within .D'/T of $118 this November 4-. 3902. M. Lesser &Co., Attest: F. H. Govan, Clerk.” The court in that case used this language: “It will be observed that the statute .requires that the date of the payment shall be indorsed on the margin of the record. The indorsement above set out does not show the date on which the payment was made. Conceding that the indorsement shows that a payment had been made, it falls far short of showing that such payment was made within five years before the beginning of the suit to foreclose. It is not the fact of payment, but the date on which payment is made, that tolls the statute. The in-dorsement only shows that there was a balance of $118 on November 4, 1902, but it does not show that the payment which left such a balance was made on November 4,1902. For aught that the indorsement shows to the contrary, such payment might have been made even before the note became due on October 15, 1899, or so soon thereafter as not to bring- the date of the payment within the period of five years before the institution of the suit to foreclose. The date of the payment must be indorsed on the margin of the record in order that third persons examining the same may know whether or not the mortgage or deed of trust is barred by the statute of limitations.”

The testimony of the cashier who made the indorsement is to the effect, and it is undisputed, that there were $420 paid the bank on January 3, 1925, from the sale of the property named in the indorsement, which had been sold by Ewan to the School Board, and the release was executed in order that the School Board, the purchaser, could receive clear title to the lot.

It is the opinion of the majority that the expression, “for value received,” is equivalent to the statement that a sum of money had been received by the mortgagee dn the debt secured by the mortgage, and that the date affixed to the signature of the cashier refers to and is the date of the transaction which the memorandum records, and of its indorsement, and is therefore a compliance with the ■ requirement of the statute, and was sufficient to apprise any one that examined it that a portion of the indebtedness had .been paid on the mortgage debt sufficient to warrant the bank in releasing a part of its security, and that it is distinguished from the case of Clark v. Lesser, supra, for the reason that the indorsement in that case was not sufficient to indicate a payment, had been made on any definite date, so that third persons examining the record could have no information as to whether any payment had been made within the time that would prevent the mortgage from being barred by limitation, while in the instant case the date affixed to the signature of the mortgagee would reasonably refer to the date when the consideration for the release was received by it, and was within five years from the due date of the note.

The majority are strengthened in the conclusion reached by the fact that all of the transactions by which Ewan became indebted to the appellees, his judgment creditors, were had at a time when the mortgage was in full force and virtue, of which mortgage they were presumed to have knowledge, and the indorsement was sufficient to put them on inquiry as to the continued existence of the mortgage lien.

We think the judgment and decree of the court in adjudging the priorities of the judgment creditors with respect to each other is correct, and they would be entitled to share in any residue remaining from a sale of the land after the mortgage debt has been satisfied in amount, and to the extent found by the court below. In view of the conclusion reached, the decree of the chancery court is reversed, and the case remanded for further proceedings consistent with the principles of equity, and in conformity with the views hereinbefore expressed.


text:
    (1) State ex rel. Attorney General v. Wilson. (2) State ex rel. Attorney General v. Kent.
    Opinion delivered April 28, 1930.

      Hal L. Norwood, Attorney General, and Coleman $ Riddick, for appellant.

      Lemley & Lemley, 0. A. Graves and L. E. Monroe, for appellees.
   Butler, J.

As the two cases depend upon the same state of facts, they have been consolidated, the question in both cases being the validity of a sale of a sixteenth section school in Hempstead 'County, Arkansas. The sale was ordered and made pursuant to authority contained in §§ 2, 3, 4 and *5 of act No. 344 of the Acts of the General Assembly of 1919, the provisions of which that are material to issues involved are as follows:

“Section 2. It shall be lawful for the county court of any county in which any permanent school lands and lots, as defined in the preceding section, are situated to order the same sold at public auction by the sheriff: in legal subdivisions upon the application of any person who may desire to purchase the same, and who will deposit with the clerk of said court a sum sufficient to pay the costs of the appraisement, the estimate of the timber thereof, if any of commercial value, the survey thereof if one is necessary, and the advertisement and other cost of sale. Such applicant shall also file a written guarantee that he will bid at said, sale at least two and 50/100' ($2.50) dollars per acre, if it is land, the full appraised value if it is lots; * * *
“Section 3. The county court shall appoint three disinterested householders of said county who are familiar with real estate value to view and appraise said lands and lots, and cause the timber, if any, on said land to be estimated. Each of said appraisers shall take an oath which shall be filed in said court, that he does not desire or intend to buy said land or lots or any part thereof, and that he will not directly or indirectly be or become interested in the purchase thereof, at the sale to be made by the sheriff. Said appraisers shall each receive for his services the sum of one dollar and fifty cents ($1.50) per day for each day they are engaged in such services.
“Section 4. The sheriff shall give notice by publication in some newspaper published in the county where the land is situated at least four weeks before the day of sale, that he will sell said land or lots at the courthouse door. Upon the day of the sale the sheriff shall offer the lands or lots at public auction in separate legal subdivisions, if land, and by separate lots, if town lots. # # *
“Section 5. The sheriff shall without delay report all sales to the county court, which may reject or confirm the same. * * * If any sale be rejected the county court may direct the sheriff to again advertise, and offer the land or lots for sale. If the sale be confirmed by the court, the sheriff shall execute and deliver to the purchaser a certificate showing that he has purchased the land, * * *. Upon the presentation of the certificate of purchase to the Commissioner of State Lands, Highways and Improvements, the purchaser of the lands or lots as the case may be, his heirs or assigns shall be entitled to a deed from the said commissioner for the land or lots described in said certificate, and the said commissioner is hereby authorized to make conveyance of any lands or lots sold under and by virtue of this act.”

As provided hy said act the Arkadelphia Milling Company filed a petition in the Hempstead County Court asking for the sale of section 16, township 13 south, range 25 west, mailing the deposit and bond required. Pursuant to the petition, the court made an order on the 7th of June, 1920, directing the sale of the land, and appointing appraisers as required, and on the 14th day of July following the sheriff filed his report of the sale with the county court which on September 6, 1920, made an order approving and confirming tire sale which is as follows:

“In the County Court oe Hempstead County, State oe Arkansas.
'‘Instrument, report of sale. Date, September 6, 1920. Record Book, County Record Z, at page 37.
‘‘In the matter of the sale of lands in section 16, township 13 south, range 25 west.
“Now on this day is presented to the court the report of R. L. Keel, sheriff of Hempstead County, Arkansas, of his sale of lands located in section 16, township 13 'south, range 25 west, in Hempstead County, Arkansas, together with the petition, the report of the appraisers, and the proof of publication filed herein, from which the court finds that a petition in due form of law was presented and approved by the court; that the court appointed three disinterested householders of said county to appraise said lands, who were familiar with real estate values, and to cause the timber on said lands to be estimated, and after subscribing the oath as prescribed by law, said appraisers did view and appraise said lands and estimate the timber thereon as prescribed by law, and afterwards caused their said appraisements to be filed with this court. And the court further finds that the sheriff of Hempstead County did give notice of said intended sale by publication in the manner prescribed by law, at least four weeks before the day of sale, and that upon the day advertised for said sale at the courthouse door of said county in separate tracts of 40 acres each between the hours of ten o’clock in the forenoon and three o’clock in the afternoon, and at said sale so had and made by said sheriff, the following parties became the purchasers of said lands at the prices set opposite their respective names, to-wit: * * * and it further appearing to the court that the price received for said land was adequate and not less than the market value thereof and more than two dollars and fifty cents per acre, and that said sale should be in all things confirmed and approved by the court.
“It is therefore ordered, considered, and adjudged by the court that said sale so made by the sheriff be and the same is hereby in all things approved by the court, and the sheriff of Hempstead County is hereby ordered to issue to each purchaser of said lands a certificate of purchase, to the end that they may receive a deed for same as in such cases provided by law.”

On the 18th day of April, 3929, the appellant filed this complaint in the Hempstead Chancery Court against J. H. Kent, the original purchaser of four of the 40 ’s of the said sixteenth section, and by amendment later the subsequent purchasers of land from Kent were made parties to the suit. In this complaint it was alleged that the sale of the land to Kent and the order of the court confirming the sale were void, and it prayed for cancellation of the deed from the Commissioner of State Lands to Kent, and for cancellation of deeds from Kent to those holding under him, and for judgment for the value of timber cut and removed from the land.

The defendants (appellees) interposed a demurrer, which deniurrer was sustained, and from the order sustaining same plaintiff (appellant) appealed to this court. Subsequently plaintiffs filed a petition for a writ of certiorari in the Hempstead Circuit Court in which it prayed that the judgment of the county court confirming the sale to defendant Kent be declared to be void. To this petition the subsequent purchasers were made parties defendant on their petition, and the purchasers of the remaining eight 40-acre tracts were also made parties defendant on that petition. Thereupon, all of the parties defendant demurred to the petition for certiorari, which demurrers were sustained by the court. An appeal was prosecuted therefrom, which, as before set out, has been consolidated in this court with the chancery court proceedings.

The contention of plaintiff in the court below and here is that the sale and judgment of the county court is void, (3) because the appraisers did not take the oath of office required by law; (2) tlie appraisers did not file tlie oatli in the county court as required by law; (3) the appraisers did not file the appraisement in the county court as required by law; (4) each tract of land and the timber thereon were sold for less than one-fourth of the market value thereof as ascertained by the appraisers; and (5) the county court in its confirmation order did not find that the market price received for the land sold was the market value as shown by appraisement.

A county court acting within the powers conferred by the Constitution and statutes is a court of superior jurisdiction, and, where by statute special powers have been conferred and such special powers exercised judicially, its judgment cannot be impeached collaterally except for want of jurisdiction or errors apparent on its face. Stumpff v. Louann Prov. Co., 173 Ark. 192, 292 S. W. 106; Bragg v. Thompson, 177 Ark. 870, 9 S. W. (2d) 24. But when the act under such powers is ministerial only and not judicial, its decision must be regarded as that of a court of limited and special jurisdiction, and in such eases all of the facts essential to the exercise of the special jurisdiction must appear upon the face of the record. Morris v. Dooley, 59 Ark. 433, 28 S. W. 30, 430.

Under the statute quoted supra, it will be noted that the sale is one made when ordered by the court, and is not consummated until the proceedings have been re-AfieAved and confirmed by it. It will, therefore, be seen’ that the court in ordering’ and confirming the sale was acting judicially and not ministerially, and therefore the effect of its judgment Is that of a court of superior jurisdiction, and AA7'here it has acquired the jurisdiction all Avho may claim an interest in the land are concluded by the judgment, valid on its face, unless they have assailed it by a direct proceeding in the action or by appeal. Reeves v. Conger, 103 Ark. 446, 147 S. W. 438.

This court has often held that Avhere jurisdiction is conferred on a court by special statute which is to be exercised in a special manner therein prescribed, tbe record of such court must show the facts essential to give the court jurisdiction, otherwise no presumption as to its jurisdiction will be indulged. The statute in such cases must be strictly pursued, and the jurisdiction must be made to appear in the mode pointed out by the statute. ¡But such cases have no application here.

The essential fact to give the court jurisdiction in the instant case was the filing of the petition asking for sale, which fact is shown by the recitals in the judgment, and is conclusive of the jurisdiction. As this was a judicial sale, it was not essential that all of the facts necessary to the validity of the sale be shown of record, but the court had jurisdiction to inquire concerning these matters. Upon the presentation of the report of sale, the county coui't was empowered to inquire into the proceedings in order to determine whether the statutory requirements had been observed, and the confirmation is conclusive as to all such matters upon collateral attack unless the contrary affirmatively appears in the judgment itself. Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Clay v. Barnes, 121 Ark. 474, 181 S. W. 303; Jones v. Ainell, 123 Ark. 532, 186 S. W. 65.

Except in those cases where an attack upon the judgment is authorized by statute, it is necessary, in order to constitute a direct attack upon a judgment, that some step be taken to impeach its validity in the action itself, 'such as by appeal taken from it or by motion to vacate m modify on account of some irregularity; any other is a collateral attack. This action is a collateral attack.

The first three reasons assigned by appellant for contending that the sale and judgment of the court was void was that the appraisers did not take the oath required by law, and did not file the oath in the county court as required ]oy law, and did not file their appraisement. These were irregularities which were cured by the confirmation of the sale, for the doing of none of these acts was necessary to give the court jurisdiction, but were incident only to the conduct of the proceeding which the court must he presumed to have inquired into, and determined that they were done in compliance with the statute.

In § 1 of the act there is a provision that ho State school land shall, be.sold for less than two dollars and fifty cents ($2.50) per acre, nor for less than the market value, which value shall be ascertained by appraisement. It is insisted, as the fourth reason given why the sale is void, that this provision of the statute was not complied with, as the land was not sold for its market value as shown by the appraisers, and, lastly, that the judgment is void because the court did not find that the price received for the land .sold was the market value “as shown by appraisement.”

We think the recital in the judgment, “And it further appearing to the court that the price received for said land was adequate and not less than the market value thereof, and more than two dollars and fifty cents ($2.50) per acre,” in the judgment was sufficient. The market value was the essential fact, the appraisement merely being the evidence by which that fact was established, and we must presume on collateral attack that the finding was based on proper evidence. Appellant insists that the requirement of a sale for the appraised value is jurisdictional, and cites a number of cases to the effect that the sale of land and the order confirming the sale is void where the land does not bring the amount required by the statute. In those cases, however, the statute expressly made such sales void, which the statute under consideration does not do, and, also, there is nothing in the judgment of the court in the instant case to indicate that the value named was not received. As we have seen, granting that a sale for the appraised value was necessary, unless the fact was not shown by the judgment itself, no advantage could be taken of it in this action. The proceeding for the sale of the school land was an action in rent-, jurisdiction of the subject-matter having been obtained by the filing of the petition, and the finding of the court, acting in a judicial capacity, that the land was sold for its market value was tantamount to a finding that the requirements of the statute had been met. Reeves v. Conger, supra.

Where a judgment is sought to be.impeached upon collateral attack, the only question that can be inquired into on which an examination of matter extraneous to the judgment itself can be made is to determine whether the court had jurisdiction of the person or subject-matter of the suit, and where this is found, other questions affecting the validity of the judgment must be determined from it alone. The appellant takes the position that the court is not limited to an examination of the judgment record alone in determining whether the judgment is void, but may look to other parts of the record which may contradict the recitals of the judgment. To sustain this view, appellant cites Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344; McClain v. Duncan, 57 Ark. 49, 20 S. W. 597; Champion v. Williams, 165 Ark. 328, 264 S. W. 972; Quertermous v. Bilby, 144 Ark. 101, 221 S. W. 856; Van Etten v. Daugherty, 83 Ark. 534, 103 S. W. 837; but all those were cases where such an examination was permitted for the purpose of determining the jurisdiction of the court with respect to the person or the subject-matter.

We have found no declaration of this court that would warrant the conclusion that on collateral attack, where the court is shown to have had jurisdiction, its judgment can be impeached by controverting its recitals by evidence aliunde.

It follows that the chancery court properly sustained the demurrer to the appellant’s complaint, and that the action of the circuit court in sustaining the demurrer to the petition for writ of certiorari was also correct. We have uniformly held that the writ of certiorari (in cases where an appeal might have been prosecuted) will lie only where the examination of the judgment itself shows it void on its face. Cazort v. Road Imp. Dist. 175 Ark. 570, 299 S. W. 1014; McCrory Special Sch. Dist. v. Curtis, 174 Ark. 343, 295 S. W. 971; Kenyon, Excr., v. Gregory, 127 Ark. 525, 192 S. W. 887.

As appellant has shown no reason for his failure to appeal, and, as we have seen, the judgment of the court is regular on its face, and not void, it follows that in case No. 1524 the decree of the chancery court and in No. 1525, the judgment of the circuit court, must he affirmed, and it is so ordered.


author: Per Curiam.

text:
    Williamson v. Mitchell Auto Company.
    Opinion delivered April 28, 1930.

      J. P. Machen, for appellant.

      McKay é Smith, for appellee.
   Per Curiam.

Without determining whether or not the circuit court exceeded its jurisdiction in the respect complained of, the court will deny the writ of certiorari. The writ is not one of right, but will be granted or denied in the discretion of the court, according to the circumstances of each case a.s justice may require. The court has held that an appeal will lie from a void judgment. Taylor v. Bay St. Francis Drainage Dist., 171 Ark. 285, 284 S. W. 770.

It is also well settled in this State that error apparent on the face of the record may be reviewed on appeal without any bill of exceptions or motion for new7 trial. Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002.

Under the authority of the case last cited, when the time for appeal, as is the case here, has not expired, we will treat the proceedings as an appeal from the judgment of the lower court; and it is ordered that the case take its place on the calendar.


author: Peb CuRIam.

text:
    Mutual Benefit Health & Accident Association v. Hunnicutt.

      Robinson, House <$> Moses and Chas. Q. Kelley, for appellant.

      II. G. Wade, for appellee.
   Peb CuRIam.

Mutual Benefit Health and Accident Association has been granted an appeal on January 16, 1930, from a judgment rendered against it in the circuit court on the 22d day of July, 1929, in favor of James E. Hunnicutt for $2,740. On August 6, 1929, James E. Hunnicutt transferred said judgment to H. G-. Wade for value received. The transfer or sale was duly signed by said James E. Hunnicutt, and acknowledged by him before a justice of the peace on the same day. The said written assignment of the judgment was filed for record in the circuit clerk’s office on the 18th day of January, 3930, and duly recorded. The original assignment was placed in the files of the case in the circuit court which rendered the judgment.

James E. Hunnicutt died intestate on October 15, 1929. Letters of administration were duly granted by the clerk of the probate court upon his estate on the 8th day of April, 1930.

Upon motion of appellant to revive the case in the name of the proper party succeeding to the interest of James E. Hunnicutt in the judgment, each of these parties claimed to be the successor in interest. -Said adminis-tratrix denies the validity of the assignment to Wade. The latter alleges that the administratrix has no interest in the matter, and that she was divorced from Hunnicutt when the assignment was made.

We cannot try this disputed question of fact. Section 6303 of the Digest provides for the transfer or sale of judgments. Its provisions were complied with, and Wade thereby became the real party in interest in the action before the death of Hunnicutt, and before the appeal was taken; and thereby became the successor itj interest to James E. Hunnicutt.

Where the interests of a party to an appeal devolve upon another, whether by operation of law or 'by act of the parties, a person acquiring such interests will usually be allowed to be substituted, and to prosecute or defend I he appeal in place of the original party, if the proper steps are taken in accordance with the practice in the particular jurisdiction. 3 C. J. p. 1031.

Under our Code, actions must be .prosecuted in the name of the real party in interest. Crawford & Moses’ Digest, § 1089. Here Wade succeeded to the rights of Hunnicutt before his death, and is entitled to defend on the appeal. Of course, the administratrix may proceed by action in a court of competent* jurisdiction to have the assignment to Wade set aside on the ground of fraud; but,- until that is done, Wade has the right to be substituted as a party to the appeal. It is so ordered.


text:
    Dunn v. Forrester.
    Opinion delivered May 5, 1930.

      Duke Frederick, for appellant.

      W. A. Bates, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Hart, C. J.,

(after stating the facts). The rights of the parties under the timber deeds depends upon the construction to be placed upon that clause which provides for the trees and timber “to be cut and paid for within two years after the completion of a railroad down Mill Creek.”

The timber deeds were executed on the 7th day of January, 1907. It is well settled in this State that in a sale of standing timber, when there is no time fixed in the contract within which the purchaser is to remove the timber, the purchaser shall have a reasonable time, considering all the facts and circumstances surrounding the transaction, within which to remove the timber. Liston v. Chapman & Dewey Land Co., 77 Ark. 116, 91 S. W. 27; Hall v. Wellman Lumber Co., 78 Ark. 408, 94 S. W. 43; Garden City Stave & Heading Co. v. Sims, 84 Ark. 603, 106 S. W. 959; Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801; Smith v. Dierks Lumber & Coal Co., 130 Ark. 9, 196 S. W. 481; Young v. Cowan, 134 Ark. 539, 204 S. W. 304; Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645; and Ozan-Graysonia Lumber Co. v. Swearingen, 168 Ark. 595, 271 S. W. 6.

This is in application of the fundamental principle that where .a time is not specified for the performance of a contract, it should be performed within a reasonable time. In the present case, the expression in the timber deeds or contracts that the trees and timber were to be cut and paid for within two years after the completion of a railroad down Mill Creek near which the land was situated indicates that the contracting parties did not intend that the right to cut and remove the timber should continue in perpetuity, but rather that it was to come to an end sometime in the future. What that time was cannot be declared to be other than would be a reasonable time for the removal of the timber according to the circumstances of the case. The parties thought a railroad would be constructed in the near future which would afford a suitable means of marketing the timber after it was cut. Only two years were given for cutting and removing the timber after the cutting began, and payments were to be made monthly. The railroad had already obtained a number of right-of-way deeds in that locality. This fact not only indicated the direction of the railroad, but pointed to the fact that construction work would begin in the near future.

All these facts and circumstances negative an intention on the part of the grantors to convey to the grantee a perpetual right to enter upon the land and out and remove the trees growing thereon, but clearly manifests an intention to limit the right to cut and remove the trees to two years after a railroad is completed down Mill Creek, provided that should be done within a reasonable time. The grantee waited over 20 years before beginning to cut and remove the timber. Such a length of time was unreasonable. It does not make any difference that it would not have been profitable to have begun operations sooner. While uo hard and fast rule should be laid down, and each case must, depend upon its own particular facts, we are of the opinion that 20 years were too long to wait in the present case. The record shows that one tract comprised 80 acres, and the other 159.49 acres. The parties lived on their respective tracts of land, and a part of them was cleared. It is unreasonable to presume that the parties intended that the clearing and putting in cultivation the lands should be delayed for such a length of time. To hold otherwise would enable the grantee to cut and remove the timber when his convenience or market conditions required it, without regard to the interest and convenience of the owner of the land, or any injury that might result to him by reason of delay in cutting and removing the trees.

We are of the opinion that the grantee waited too long in the present case, and .the title to the timber was thereby forfeited. Therefore, the chancery court erred in giving the grantee further time within which to cut and remove the timber; and the decree will be reversed and the cause remanded with directions to the chancery court to grant the prayer of the complaint in each case, and for such further proceedings as may be necessary according to the principles of equity. It is so ordered.