author: Wood, J.

text:
    Lewis v. State.
    Opinion delivered October 16, 1922.
    1. Homicide — conclusiveness op verdict. — In a prosecution for murder, where the issue whether defendant was guilty of voluntary manslaughter under the evidence was one of fact, the verdict of the jury is conclusive.
    2. Criminal law — excusing juror — harmless error. — In a criminal prosecution where the jury panel was completed before defendant exhausted his peremptory challenges, and the court excused a juror who testified that he could try the case solely according to the law and evidence, but that he was an intimate friend of defendant and might be biased in his favor, it cannot be contended that a biased or incompetent juror was forced upon defendant.
    3. Homicide — threats by dependant. — In a prosecution for murder, admission of evidence of threats made by defendant within the preceding year against deceased was not error.
    4. Homicide — threats op dependant. — In a prosecution for murder, it was competent to prove that defendant had stated that he was going to send deceased to the penitentiary as a bootlegger and moonshiner, or that he would like to see him go to the penitentiary.
    5. Homicide — threats.—In a prosecution for murder where there was evidence of threats by defendant to deceased as to what he would do if deceased trespassed on his land, it was not error to permit evidence that defendant nailed a notice on a tree that trespassers would be dealt with right on the spot.
    6. Witnesses — cross-examination op accused. — In a -prosecution for murder, it was not error to permit defendant to be cross-examined as to whether he had not bought whiskey from a certain person, and furnished him money to operate a still.
    7. Homicide — threats by deceased. — In a prosecution for murder it was not error to reject evidence of a threat by deceased, as follows: “If I ever catch him just right, I am going to give him a good clouting,” where the witness understood that deceased referred to defendant, but would not swear that he was talking about defendant.
    8. Criminal law — necessity of specific objection. — An instruction which, after defining manslaughter, stated that “unless it appears from the evidence that there was a provocation sufficient to make passion irresistible,” the crime would not be reduced from murder to manslaughter, was not open to a general objection, as the omission of the word “apparently” before the word “sufficient” should have been called to the court’s attention specifically.
    9. Criminal law — instructions construed as a whole. — In a murder trial, an instruction that if deceased assaulted defendant, but there was no cause for defendant to believe that he was in any danger of being killed or seriously injured, but defendant, because of ill feeling or malice, and not an honest effort to protect himself, killed deceased, he would be guilty of murder in the second degree, was not oo’jectionable as excluding from the jury any state of facts which may have seemed to defendant to be true when taken in connection with other instructions.
    10. Criminal law — failure to instruct as to lower degree of homicide. — In a prosecution for murder, the court’s failure to charge on the difference between voluntary and involuntary manslaughter was not error where no request therefor was made, and where an instruction as to involuntary manslaughter would have been abstract.
    11. Criminal law — repetition of instructions. — Refusal of a prayer for instruction partly incorrect was not error, especially where the correct portion'was covered by instructions given.
    12. Homicide — newly discovered evidence. — Where defendant was convicted of voluntary manslaughter, and one of the grounds for new trial was newly discovered evidence that hatred existed between deceased and defendant, and that deceased intended to kill defendant, it was not error to refuse a new trial, if the court might have found that this evidence could have been produced at the trial.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      Martin, Wootton S Martin, for appellant.
    J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

The appellant was indicted by tbe grand jury of Garland County of tbe crime of murder in the first degree in the killing of. one' Tom Fielder. He' was tried, and, from a judgment of conviction for voluntary manslaughter and sentence fixing his punishment at six years’ imprisonment in the State Penitentiary, he duly prosecutes this appeal.

1. The testimony for the State, giving it its strongest probative force in favor of the verdict, tended to prove substantially the following facts: During the month of October, 1921, John Lewis (hereafter called appellant) at about the hour of 12:30 was in the wagon yard of one Fulfer, in the city of Hot .Springs, Garland County, Arkansas, negotiating with Fulfer for the purchase of a shotgun. A few minutes after .appellant went into the wagon yard, one Fielder (hereafter called deceased) walked in.. The deceased walked up to where appellant and Fulfer were standing. Two other gentlemen were standing off to one side, and the deceased said to them, “I want you two gentlemen to walk up here 'and hear what I have to say to this man. ’ ’ They stepped up within something like six or eight feet of the deceased and the deceased then said: “What have I ever said or done that you are telling my neighbors that you are going to put me behind the walls?” and appellant said, “If I knew enough, or I know enough, I will damn sure put you there.” When appellant said that deceased made a grab at appellant’s arms and caught him by one of them. Appellant jumped back and turned around — “sort of turned his back” to deceased — and deceased still held to appellant. After deceased grabbed the appellant, the latter drew his gun and shot right under deceased’s left arm. After the first shot they went about ten or twelve feet backwards — sort of turned as they went. Then appellant fired the second time. When the second shot was fired deceased had hold of appellant’s arm — the arm in which he held the gun — -and was pushing the arm back. Appellant pushed this arm around under the deceased’s side and shot the second time. When appellant pulled the trigger the gun was right up against deceased’s body. As appellant brought his arm. around the deceased’s body Fulfer hollered at appellant “Don’t do that,” but the appellant shot the deceased. After the deceased was shot appellant said to him, “Tom, turn me loose,” and the deceased replied, “I will when I am dead.” These remarks were made just before appellant shoved the deceased loose from him. The deceased spoke no more, and expired in a short time thereafter.

The deceased was about fifty years old and weighed between 150 and 160 pounds. The appellant was thirty-four years old and weighed about 200 pounds.

There was testimony for the State tending to show that the deceased had incurred the ill-will of appellant about a year before the killing, which continued down to the time thereof. That was evidenced by certain threats and remarks in the nature of threats made by the appellant concerning the deceased, which we will refer to later.

The testimony for the appellant tended to prove that while he and Fulfer were talking about the sale of the shotgun the deceased walked up and said he wanted to know why appellant had been talking about him. He then called to men standing by to walk up and hear what he had to say to appellant. Appellant asked the deceased what he 'bad said 'and deceased replied, “You said you know enough to put me behind the bars.” Appellant replied “I don’t want to have any trouble with you.” Deceased then walked up closer to appellant and repeated what be had said. Appellant replied, “You know what I know about you; I have got to go to Little Rock as a witness and if I am asked I will tell the truth about what I know. ’ ’ Deceased was then five or six feet away from the appellant, and appellant turned aWay from him, and as he did so, deceased struck appellant a lick, staggering him back some four or five feet. Before appellant straightened deceased grabbed him over the right shoulder and struck him four to six times. Appellant could not tell what the deceased was striking him with, but deceased struck him twice in the same place. Appellant tried to pull loose, and they went something like fifteen- feet. After deceased struck appellant the latter pulled his gun out of his pocket and fired. He did not shoot at deceased that time, but told deceased two or three times to turn him loose. Appellant thought after he fired the first shot that deceased would turn him loose, but deceased held on to appellant. Appellant pulled deceased almost back to the end of the wagon yard, going as far -as he could, then came back the same way ten or fifteen feet. They must have gone fifty or sixty feet altogether. Then appellant fired the second time!

The appellant testified that after he had tried to get away every way he could, the thought struck him that deceased wanted to prevent appellant from telling what he -knew about the whiskey business. The wagon yard, where the shooting occurred, had the reputation of being “a sort of headquarters for the bootleggers.” Appellant had seen a load of whiskey started to that yard one time that belonged to a man who helped run the yard. The testimony of the appellant tended to prove that in June previous to the killing a horse had run away with him and he had broken his arm; that he had not had much use of that arm since, and that at the time of the encounter he was not -able to do any hard physical work. Appellant had ascertained that the deceased was in the whiskey business before the deceased moved from the country to Hot Springs. There was testimony that when he was killed, deceased had on his person a beer bottle about one-third full of corn whiskey; that he whs a powerful man physically, and had the reputation of being quarrelsome and overbearing. There was testimony for the State in rebuttal tending to prove that the deceased had the reputation of being a man of peace and quietude. The above is substantially the testimony for the State and the appeallant upon which the verdict was rendered.

The appellant contends that the evidence was not sufficient to sustain the verdict and that this court should so declare as a matter of law, but we are convinced that the issue as to whether or not appellant was guilty of the crime of which he was convicted was one of .fact and not of law. The verdict of the jury is conclusive on this issue of fact.

2. Jesse Rowe, one of the regular panel of the petit' jury, on his voir dire examination, stated that, while he had formed and expressed an opinion as to the guilt or innocence of the defendant from reading the newspapers, yet he could discard such opinion and try the case solely according to the law and the evidence. He further stated that he had been an intimate friend of the appellant for a number of years, and that for that reason he might possibly be biased in appellant’s favor. The court excused him from service on the jury for cause.

Appellant contends this was reversible error. The record shows that out of the regular panel the court excused nine for cause. Four were peremptorily challenged by the State, and seven were challenged by the appellant: Four were accepted by the parties. The regular panel being then exhausted, the court ordered a special venire of fifty names to be drawn from the names of the tales-men who were selected by the jury commissioners. Of these, ten were excused by the court for cause, seven were peremptorily challenged by the-appellant, and eight were accepted by the parties, which completed the trial panel.

It thus appears that appellant exhausted only fourteen of the twenty peremptory challenges allowed him by law. Appellant therefore does not show that any incompetent juror was thrust upon him. In Decker v. Laws, 74 Ark. 286, we said: “But, since appellants were not entitled to have any -particular juror, the erroneous rejection of the talesman was not prejudicial, in the absence of a showing that some biased or incompetent juror was thrust upon them. Vaughan v. State, 58 Ark. 353.”

3. The State was permitted to prove, over the objection of the appellant, that in the spring of 1921 the appellant, in speaking of the deceased and Wash Lewis, the .brother of appellant, said,- “Well, by Gr-, I ought to go and have them arrested. No; I just ought to take my gun and go and kill them like damn dogs.” The witness was further permitted to testify that when appellant met the deceased and Wash Lewis he also said to the deceased, “Mr. Fielder, by Gr — —, I don’t want no trespassing or anything like that on my land. You be sure 'and keep the road. ’ ’ On this occasion appellant followed deceased 12 or 15 steps with his shotgun. Deceased replied to appellant, “Now, John, we don’t want no trouble.” Witness further testified that appellant nailed a notice up on a tree, which, according to witness’ recollection, read as follows: “No trespassing, in no way regardless, or any one will be dealt with right'on the spot.”

A witness, over the objection of the appellant, was also permitted to testify that, in a conversation about six months prior to the killing, appellant stated that he was going to send Wash Lewis and Tom Fielder to the penitentiary, and the court refused to'permit the appellant, on cross-examination, to elicit from this witness the fact that the deceased was a bootlegger and moonshiner. Over the objection of appellant, the court permitted another witness to testify that he heard appellant say that there were only two men he would like to see go to the penitentiary and they were the deceased and Wash Lewis. The court also, over the objection of appellant, permitted Wash Lewis to testify that appellant tacked a notice on a tree, which notice contained the numbers of the land on which it was posted, and stated that anybody trespassing or coming over the line would be dealt with on the spot. The court, also over the objection of appellant, permitted the prosecuting attorney to ask appellant on cross-examination whether or not he had bought whiskey from one Greorge Mulhollan, and also whether or not he had furnished Mulhollan money to put up and operate his distillery,

The appellant duly saved his exceptions to the rulings of the court above mentioned and preserved his exceptions in his motion for a new itxial. There was no reversible error in any of the above rulings.

In McIlroy v. State, 100 Ark. 301-311, we said: ‘ ‘ Testimony of threats made by the defendant against the deceased prior to the homicide are admitted for two purposes : They are admissible for the purpose of throwing light upon the defendant’s motives, and in proof of malice and premeditation on the part of the defendant. * * * "When other facts and circumstances have been adduced in evidence connecting the defendant with the commission of the crime, then threats made by him against the deceased prior to the homicide become links in the chain of evidence showing his guilt.”

Now, there was testimony tending to prove that the ill-will and hostility which existed between the appellant and the deceased had not abated, but had continued down to the time of the killing. Of course, the direct threats and the declarations in the nature of threats, under the rule announced above, were admissible. “Every declaration,” says Mr. Wharton, “which indicates, however vaguely and indefinitely, an intention upon the part of the person making it to inflict violence upon another is a threat within the meaning of these rules; and a threat to prosecute for a violation of law has been held to be an admissible threat. * * * So, language used by the accused against the deceased expressing hostility and dislike is admissible in a prosecution against him for killing the deceased, though it did not amount to threats.” Wharton on Homicide, § 602, p. 931. Under the above rule the testimony in regard to sending the deceased to the penitentiary and to the effect that appellant would like to see the deceased go to the penitentiary was relevant and therefore admissible. The testimony concerning the posting of the notice could not have prejudiced the rights of appellant, in view of the proof of direct threats.

The court did not err in permitting the prosecuting attorney, on cross-examination of the appellant, to ask him whether or not he had bought whiskey from one Mulhollan and whether or not he had furnished Mulhollan with money to buy and 'operate a distillery. ‘ ‘ The accused in a criminal case may, for the purpose of testing his credibility, be questioned on cross-examination as to his having been a gambler, and as to other offenses and immorality.” Second syllabus, Shinn v. State, 150 Ark. 215, and cases there cited. When the appellant took the witness stand in his own behalf, he became subject to the above rule.

4. Appellant offered to prove by witness E. E. Burke that at the home of appellant the summer before the killing he heard the deceased and the wife of appellant talking, and deceased said, “If I ever catch him just right, I am going to give him a good clouting.” Witness understood that the deceased was talking about the appellant, although he would not swear that he heard him mention appellant’s name. Witness stated that the deceased did not call appellant’s name directly but that it was understood that deceased was talking about the bunch of people. It was witness’ understanding that deceased was talking about the appellant. It will be observed that the witness would not swear that the deceased was talking about the appellant. Therefore, the court did not err in rejecting the testimony. Deal v. State, 82 Ark. 58; Hobbs v. State, 86 Ark. 360.

5. In instruction No. 8 the court, after correctly defining manslaughter in the language of the statute, told the jury in the concluding portion of the instruction that “unless it appears from the evidence that there was a provocation sufficient to make the passion irresistible” the crime could not be reduced from murder to manslaughter. The appellant urges that this instruction was erroneous because it omitted .the word “apparently” before the word “sufficient” in the portion above quoted. There was no specific objection to the instruction, and when the first part of the instruction correctly defining voluntary manslaughter is read in connection with the concluding portion quoted, it is clear that the instruction was not inherently erroneous. The appellant therefore should have called attention to the incorrect phraseology of the concluding portion quoted by specific objection. The same likewise applies to instruction No. 11 , of which the appellant here complains. Guerin v. State, ante 50.

The appellant objected to the ruling of the court in giving instruction No. 9 on the ground that it excluded from the consideration of the jury any state of facts that may have seemed to the appellant to be true. The instruction, taken in connection with the other instructions, could not have misled the jury.

The appellant objects to instruction No. 13, his objection being that the instruction was abstract, but we do not so regard it. It is unnecessary to set the instruction forth at length. It correctly declares the law relating to self-defense and manslaughter in conformity with many rulings of the court on that subject, and is not abstract.

The appellant also urges that the court erred in failing to instruct the jury explaining the difference between voluntary and involuntary manslaughter. Appellant did not ask the court to give such an instruction. See Guerin v. State, ante p. 50; Price v. Greer, 29 Ark. 300.

Besides, an instruction nn involuntary manslaughter would have, been clearly abstract because there was no testimony to warrant such instruction. '

The court did not err in refusing to grant appellant’s prayer for instruction No. 3 . This instruction was not a correct statement of the law of self-defense, and such portions' of it as were correct were covered in other instructions which the court gave on that subject.

6. One of the grounds of "appellant’s motion for a new trial was the newly discovered evidence of his brother, McKinley Lewis, and his sister-in-law, Hattie Lewis, to the effect that violent hatred existed on the part of the deceased toward the appellant, and that the deceased intended to “get him,” meaning thereby to kill the appellant. The court might have found that this evidence of appellant’s brother and sister-in-law could have been discovered and produced at the trial if proper diligence had been exercised. The court did not abuse its discretion and did not err in refusing appellant’s motion for a new trial on the ground of newly discovered evidence. Adams v. State, 100 Ark. 203; Young v. State, 99 Ark. 407; Osborne v. State, 96 Ark. 400.

After a careful consideration of the record, we are convinced that there are no errors in the rulings of the trial court which call for a reversal of the judgment. Therefore, let the judgment be affirmed.

       “11. If you are convinced from the evidence beyond a reasonable doubt that the killing was not done in self-defense as explained in these instructions, but you believe that it was done under a sudden heat -of passion or on a sudden impulse caused by terror or fear on account of an assault by the deceased, and the circumstances were sufficient to make the passion or the impulse irresistible, you should find the defendant guilty of manslaughter.” (Rep.)

       “9. If you believe from the evidence, beyond a reasonable doubt, that Tom Fielder assaulted the defendant, but there was no cause, under the circumstances of the case at the time, for the 'defendant to believe that he was in any danger of being killed or of receiving serious bodily injury at the hands of Fielder, but you believe from the evidence beyond a reasonable doubt that the defendant, on account of ill feeling or malice towards the deceased, and not in an honest effort to protect himself, shot and killed the deceased, he would be guilty of murder in the second degree.” (Rep.)

       “3. In order to justify the killing of Fielder by defendant, it is not necessary that the danger to defendant should have been real. If you find that the defendant believed it to be real, was justified as a reasonable man in so believing, your verdict should be not guilty.” (Rép.)


source: Caselaw Access Project

license: Public Domain

text:
    Jackson v. Croom.
    Opinion delivered October 16, 1922.
    1. Pleading — demurrer treated as motion to make definite.— A complaint in replevin which alleges that defendants have in their possession certain bales of cotton raised upon plaintiff’s farm upon which plaintiff holds a landlord’s lien is not demurrable, and defendants’ demurrer, which should b.e treated as a motion to make the complaint more definite and certain, and an amendment to the complaint subsequently filed, as having been filed in response thereto.
    2. Replevin — amendment of complaint. — An amendment to a complaint in replevin alleging more specifically a special ownership in the property is not objectionable as pleading a new cause of action.
    Appeal from Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge;
    reversed.

      Marcellus L. Davis and Jolm B. Crownover, for appellant.
    The amended complaint stated a cause of action. 36 Ark. 525; 38 Ark. 415; 45 Ark. 449 ; 47 Ark. 386; 52 Ark. 129; 61 Ark. 519; 67 Ark. 138; Strode v. Holland, 150 Ark. 122.

      Lee é Scott, for appellees.
    The court was correct in sustaining the demurrer to the original complaint. 36 Ark. 572; 38 Ark. 413; 132 Ark. 592.
    Courts do not permit amendments, when the amendment is inconsistent and contradictory to the original complaint. 70 Ark. 319; 105 Ark. 406; 120 App. Div. 250; 113 N. Y. Supp. 779; 132 Ark. 368.
   Wood, J.

This is an action in replevin instituted by the appellant against the appellees to recover the possession of five bales of lint cotton. In his original complaint the appellant alleged that the appellees “had in their possession, without right, five bales of lint cotton which were raised on plaintiff’s farm, that plaintiff had a landlord’s furnisher’s lien thereon amounting to the sum of $700 for money, goods, wares and merchandise furnished by him to Wilson Davis in order to enable the said Wilson Davis to make and produce the said five bales of cotton.” Appellant prayed “for the possession of the said five bales of cotton, to the end that he may sell the same to pay said furnisher’s lien.”

The appellees demurred to the complaint, and the court sustained the demurrer and rendered judgment in favor of the appellees. At a later day of the same term of court the appellant amended his complaint by adding the following: “That, prior to the time said defendants came into possession of the said cotton and prior to any attempt on their part to foreclose any mortgage on said five bales of cotton, the said Wilson Davis had turned over and delivered to plaintiff the said five bales of cotton in payment of the sum of $500 of his said indebtedness to the plaintiff, and that the said five bales of cotton were at the time, by virtue thereof, the property of this plaintiff, and the same were in his possession on his farm, when same were converted by the said defendant. ’ ’

The appellees renewed their demurrer to the amended complaint. The court sustained the demurrer and entered a judgment dismissing the complaint in favor of the appellees and for the return of the cotton by the appellant to the appellees, or, in default thereof, the sum of $500, its value, and for their costs. From that judgment is this appeal.

This case is ruled by the case of Climer v. Aylor, 123 Ark. 510, where the complaint filed in the justice court and as amended in' the trial court was in substantial particulars the same as the complaint under review, only that the complaint in. that case did not allege special ownership. In that case, among other things, we said: “The plaintiff could not have been entitled to the possession of the property, and defendant could not have any possession thereof and'have detained the property from plaintiff without right, unkss the plaintiff had general or special ownership in the property. # * * The complaint was at least sufficient on general demurrer, and the court erred therefore in dismissing the same. The defects therein could and should have been reached by a motion to make more specific. Under our liberal rules of pleading, the appellant should have been allowed to amend his cause of action defectively stated.” The court should have treated appellee’s general demurrer as a motion to make more specific, and the amendment to the complaint as having been filed in response to such motion, Strode v. Holland, 150 Ark. 122; Moore v. Ford, 146 Ark. 227.

Here the original complaint, was defective in not stating the grounds upon which the special ownership of the appellees was based, but that defect was remedied by the amendment. The cause of action set forth in the original complaint was one for the possession of the property. The allegations of the amendment do not change the nature of the cause of action from one for possession to one for conversion and damages therefor, as in the cases upon which the- appellees rely to sustain their contention. The allegations of the amendment to the original complaint were only an addition, and supplementary thereto'. The action all the way through was for the possession of the property.

The court therefore erred in sustaining the demurrer and in dismissing appellant’s complaint. For the error indicated, the judgment is reversed, and the cause remanded with directions to overrule the demurrer.


text:
    Johnson v. Borders.
    Opinion delivered October 16, 1922.
    1. Habeas corpus — custody of infant. — A father is entitled to the custody of his infant child, as against the infant’s maternal grandparents, notwithstanding his religious belief as to divine healing, where there was no reason to believe that he would not procure medical attention for the child if it should become ill.
    2. Habeas corpus — custody of infant. — As between the father and other persons, even the mother, where. there are tender sympathies on each side that may be relied upon, the custody of an infant will generally be awarded to the father.
    Appeal from Cleburne Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      J. Allen Fades, for appellant.
   Wood, J.

On the petition of the appellant, the chancery court of Cleburne County issued a writ of habeas corpus directed against the appellees, to determine whether or not they were entitled to the custody of Cessal Johnson, the infant son of appellant. At the hearing of-the writ the appellant, in his own behalf, testified that he was father of the infant, who was about fourteen months old. He stated that he had 120. acres of land and a good team of mules, a wagon, a buggy, two -cows, chickens and hogs, and that he was abundantly able to maintain his child. When his wife died on October 6,1921, the child was sick, and his mother-in-law, Mrs. Vena Borders, wanted to take the child to her home, and the appellant allowed her to do so on the 11th day of October, and the child had been sick ever since.' On the 27th of October the appellant went by to see the baby and bring it home if it were well. They told him it was well, but refused to let him take it home, and they had continued to refuse, and he sought to obtain possession of the child through this writ of habeas corpus. He testified that he had affection for his child and wanted to keep it, and that the child knew him and seemed greatly attached to him. His testimony tended to prove that he let Mrs. Borders, his mother-in-law, who was at his home at the time his wife died, take charge of the child; that she told him that the doctor who had been in attendance-on the 'child’s mother said that the child would have to have a trained nurse or she would have to take it, and appellant told her that she could keep it and care for it herself. Appellant believed that she would take good care of the baby, and she asked appellant to come to see it at any time, and told him to go home with her and stay with the baby, and appellant told her that he- could not do so. His testimony further showed that when he went to get the child, B. B. Borders, the child’s grandfather, met appellant at the gate and abused him, called him “hard names,” and assaulted him and did not permit him to go in and see the baby, and he had to leave without getting the child. He further' stated that if the court awarded him the custody of his child he would give it medical treatment, should it become ill. He stated that he was a member of the Church of God; that he believed in divine healing. He also believed in doctors, and stated that doctors were all right, but he believed that the Lord could heal, too, if any one has faith enough to trust Him. He stated that all his people believed the same way. At that time he was living at the home of his father. His mother and sister would assist him in taking care of the baby.

Appellant’s sister corroborated the testimony of appellant to the effect that B. B. Borders called appellant bad names and assaulted him when he went to get the baby, and would not allow him to see or take the baby. Her testimony, and the testimony of appellant’s mother, corroborated his testimony to the effect that lie was well able financially to take care of the child, and that if the custody of the child were awarded to the appellant they would look after it, care for it, and assist in giving it medicine if it needed it.

The testimony of all these witnesses was to the effect that appellant did not refuse to have a doctor for his wife in her last illness, and that he did not refuse to give her medicine, but that on the contrary he had the doctor and endeavored to get his wife to take the medicine left by the doctor for her, which she finally refused to take. Their testimony tended to prove that they were members of the Church of God; that they believed in divine healing in a way. Mrs. Johnson, appellant’s mother, testified that she gave her own children medicine, and that she was filling to give Prank’s baby a mother’s attention if she were awarded its custody.

There was testimony on behalf of the appellant tending to prove that he bore a good reputation for honesty and morality. There was also testimony to the effect that the Borders regularly attended the meetings of the Church of God, and that B. B. Borders would speak in these meetings and ask the prayers of the people. There was some testimony to the effect that Borders acknowledged, in one of these meetings, that he had family troubles; that it was the wrong way to live, and asked the members of the congregation to pray for him. It was in evidence on behalf of the appellant that there was no tenet-of the religion of the Church of God that prohibited its members from getting a do'ctor or using medicine.

On the other hand, the testimony on behalf of the appellees tended. to prove that the appellees did not let the appellant take the child in controversy for the reason that he had refused to give his wife the proper medical attention during her last illness, and they were apprehensive that he would, on account of his religious fanaticism, fail to give the baby the proper -medical attention should it become ill. The testimony on behalf of the appellees tended to show that the appellant stated, in the presence of the doctor, during the last illness of his wife, that she did not need any medicine, and that the appellant’s mother, who was in attendance at the bedside, also stated that the patient didn’t need any medicine, and other people also who were there stated that the appellant had complied with the law, and they didn’t want the doctor’s medicine.

But it could serve no useful purpose to further set out in detail the testimony adduced at the hearing to support the respective contentions of the parties. It suffices to say that the testimony on behalf of the appellant tended to prove that he had not failed to give his wife the necessary medical attention during her last illness, while the testimony on behalf of the appellees tended to show that he had failed to give her such attention. It is clear from all the testimony adduced on behalf of the appellees, that they would -have been willing to allow the appellant to take and keep his child except for the reason that they were fearful that he, on account of his belief in divine healing, would not give the child the proper medical attention should it become ill.

After hearing all the testimony, the court found “that the interest of said infant child, Cessal Johnson, will be best served by remaining in the custody of respondents.” The court entered a decree allowing the appellees to retain the custody and care of the child until further orders of the court, with permission to the appellant to visit the child at the home of the respondents at all reasonable times, and retained “control of the child for such future action as may be for its best interests.” From that decree is this appeal.

Conceding that the preponderance of the evidence warrants the conclusion that appellant, during the time of his wife’s last illness, did not give her the proper medical attention, and also did not give his infant child the proper medical care immediately after the death of its mother, nevertheless we are convinced, from all the testimony of this record, that such treatment of his wife and baby at that time did not justify the chancery court in awarding the custody of the infant to the appellees, its maternal grandparents. For the undisputed evidence shows that the appellant is a inan of good character, and that he is abundantly able financially to care for his child. The appellant lived with his father. His mother and sister both testified that they would assist him in looking after the child. They would give it “a mother’s care. ’ ’

Now, while the undisputed testimony showed that appellant and his mother and sister believed in divine healing, yet the testimony also showed that no tenet of their religion required that they should not have a doctor or take medicine in cases of illness. On the contrary, they all testified that the children of Mrs. Johnson took medicine when they needed it, and they further testified that, if the child were brought to their home and should become ill, they' would at once give it medicine. Mrs. .Johnson had seven living children and had lost one, and she stated that she gave her 'children medicine when they got sick and needed it. It therefore appears that, notwithstanding their 'belief in divine healing, the appellant and his mother and sister, who were to stand in the place of a mother to this infant, asserted that there was nothing in their religion to deter them from giving the child medical attention, should it become ill, and that they would give it such treatment.' Under this testimony, if the father should be denied the custody of his child, it would be purely, because of his religious belief and the apprehension that because of such belief the child would not have the proper care and attention during any illness that might befall it. But the learned trial court was not justified in indulging such' apprehension, in view of the testimony of appellant and his mother and sister that their religious belief would not stand in the way of medical aid for the child should it become necessary.

In Lipsey v. Battle, 80 Ark. 287, we said: “The courts may remove the child from the custody of its parents, but this should only be done when it is plainly necessary to secure the present'and future well-being of the infant.” And in Verser v. Ford, 37 Ark. 30, we said: “As between the father, too, and the mother, or any other near relation of the infant where sympathies on either side of the tenderest nature may be relied on with confidence, the father is generally to be preferred. ’ ’ See, also, Wofford v. Clark, 82 Ark. 461; Baker v. Durham, 95 Ark. 355.

For the error indicated, the decree is reversed and the cause will be remanded, with directions to the chancellor to enter a decree giving to the appellant the custody of his child, and also with directions to enter an order giving to the appellee the privilege at all reasonable and convenient, times to visit the child. The chancery court was correct in retaining the jurisdiction of the cause, and will still retain same, to make such orders as it may deem necessary at any time to protect and preserve the rights of the infant and the parties hereto, as above indicated.


text:
    Anderson-Tully Company v. Gillett Lumber Company.
    Opinion delivered October 16, 1922.
    1. Corporation — powers.—The powers of business corporations are derived from the State, by compliance with the laws of its incorporation and the receiving of its charter.
    2. Corporations — powers op officers. — The powers of officers of a corporation are derived from the corporation itself through the action of the stockholders and managing board.
    3. Corporations — lack of authority to make contract. — Where a corporation, sued on an alleged contract, seeks to avail itself of the defense of ultra vires, it must plead that defense; but where it relies on the lack of authority of its officer to make such a contract, it may deny that it made the contract and place upon the plaintiff the burden of showing the officer’s authority.
    4. Corporations — authority of officer — evidence.—Evidence held to show that a corporation’s secretary was without authority to sell a tract of its standing timber.
    5. Principal and agent — authority of special agent. — One dealing with an agent not clothed with general authority nor with apparent authority to act is bound to discover whether the agent had authority to bind his principal.
    6. Corporations — authority of secretary — The secretary of a corporation has no authority by virtue of his office to sell the corpus of the corporation; to do so he must be authorized by the directors and stockholders, and a purchaser dealing with him must ascertain his authority.

      7. Corporations — authority of secretary — evidence.—The authority of the secretary of a corporation, as special agent, to sell its property cannot be proved by his acts and declarations.
    8. Corporations — unauthorized act of agent — ratification.— Evidence held not to show ratification by a corporation of the unauthorized act of its agent in disposing of its property.
    Appeal from Arkansas Chancery Court, Southern District; John M. Elliott, Chancellor;
    affirmed.

      H. B. Anderson and A. G. Riley, for appellant.
    A contract entered into must be specifically performed. 143 Ark. 97.
    The appellees cannot be held to be ixmocent purchasers. C. & M. Dig. sec. 6979; 132 Ark. 158; 98 Ark. 105; 87 Ark. 60; 75 Ark. 228; 84 Ark. 203. The plea of innocent purchaser was not available, as notice of lis pendens was duly filed. 27 Ark. 6.
    The rule against Sunday contracts is not applicable. 29 Ark. 386; 44 Ark. 74.
    The defexrse of the lack of authority of the officers to make the contract was not specially pleaded. 80 Ark. 67; 89 Ark. 435.
    The authority of the officers was established and their act ixx making the contract was the act of the corporation. 62 Ark. 7; 74 Ark. 190; 86 Ark. 287; 79 Ark. 45; 79 Ark. 338; 89 Ark. 435; 90 Ark. 301; 103 Ark. 283; 105 Ark. 641; 116 Ark. 520; 132 Ark. 371; 115 Wise. 583; 92 N. W. 234; 95 Am. St. Rep. 254; 2 Thompson on Corporations (2nd Ed.), Art. 1465; 7 R. C. L. par. 616, p. 621, par. 620, p. 623.

      T. J. Moher and Jno L. Ingram, for appellee.
    There was no contract betweexx appellant and appellee. Balmer had no authority to enter into the contract. 103 Ark. 283. •
    Sunday contracts are void. 29 Ark. 386; New York Life Ins. Co. v. Adams, 151 Ark. 123.
    Appellees, having fully performed the contract, are entitled to protection as bona fide purchasers. 39 Cyc. 1697.
    Bills for specific performance are addressed to the sound discretion of the chancellor. 12 Ark. 421; 19 Ark. 51; 34 Ark. 663.
   Wood, J.

The appellant instituted this action against the appellees. The. appellant alleged that the GHllett Lumber Company was the owner of Spanish grants Nos. 2358 and 2407, and that on the 12th day of August; 1919, said company, by written contract, sold to the appellant all the merchantable timber located and growing on said land, except the pecan and hackberry, for the sum of $6,000; that S. S. Colvin, S. R. Williams and J. L. Williams claimed interest in the merchantable timber purchased by the appellant, under a contract entered into between them and the Gillett Lumber Company; that the alleged purchase was subsequent to, and with full knowledge of, the purchase of the timbér by the appellant and after notice of lis pendens which had been duly given by the appellant. Appellant prayed for specific performance of the contract and for damages on account of tin! - her cut and removed by the acts of the appellees.

The appellees answered, denying all the material allegations of the complaint, and denying the existence of any contract to sell the timber to appellant. Appellees, Colvin and Williams, set up that they purchased the land in good faith from the Gillett Lumber Company upon a valuable consideration, and without any notice whatever of appellant’s alleged purchase.

B. C. Tully, who was secretary of the Anderson-Tully Lumber Company, testified that he conducted the negotiations for his company with one Cal Balmer, who was the secretary -and treasurer of the Gillett Lumber Company. Appellant received a letter from Balmer on July 10,1919, offering for sale the timber on the land in contróvesy. On the 10th of August thereafter the appellant wired Balmer, “Accept your proposition of $6,000 cash for all merchantable timber.” On the same day Balmer wired appellant, “O. K. timber sold, will forward abstract to DeWitt at once. Letter follows.” On August 13th Balmer wrote appellant affirming telegram of the 10th, and stated in the letter that he had instructed Swineheart, president of the company, to deliver the abstract to W. N. Carpenter for examination, and directing the appellant to close the deal with Swineheart. In the letter Balmer requested the reservation of certain timbers. Appellant replied on August 25th stating that it would be satisfactory to reserve the timbers mentioned, and also stating that it was instructing its agent to make reservations in the deed. On August 27th Balmer wrote appellant stating that Carpenter, appellant’s agent, had been'instructed to close the deal, and requested appellant to signify the size of the trees to be classed as merchant-' able. On September 12th Tully received a letter from Balmer, canceling all previous communications with him, and' advising appellant to take the matter up with Swine-heart, president of the Grillett Lumber Company, since his (Balmer’s) authority had ceased. On September 17th appellant wrote to Balmer acknowledging receipt of his last letter, and stating that appellant had sent its representative to see Swineheart, and that Swineheart had advised appellant that Balmer' had charge of the sale, and that appellant would have to deal with him, and also advising Balmer that it had accepted his proposition for the sale and purchase of the timber on the terms proposed by him in all good faith, and had expended time and money in making the negotiations, and that, as soon as its attorney approved the title, proper deed, with draft attached, would be forwarded for the lumber company to execute. The appellant, through its agent Carpenter, had the title examined and approved, and forwarded a deed to the bank at Bluffton, Ohio, with its certified check, and also with instructions to the bank to deliver the deed to Balmer, and upon execution of the same to pay over the purchase price agreed upon. The deed was not signed by the Grillett Lumber Company, nor was the purchase price of $6,000 paid to it, but the appellant tendered and was ready to pay that amount at any time upon the execution of the deed.

Tully further testified as to the quantity and value of the timber removed from the land after the appellant’s purchase and as to the damages sustained by reason thereof. The witness stated that Balmer’s correspondence was not written on the stationery of the Grillett Lumber Company, but that Balmer was the secretary of that company and had authority to act for it, according to information contained in his letters. Witness understood that he was dealing with the authorized agent of the Gillett Lumber Company; that Swineheart, the president of the companjr, had indirectly about the same time offered to appellant the timber for the same amount. Other witnesses testified on behalf of the appellant, and their testimony tended to prove that Swineheart had made an offer of the timber to the appellant upon the same terms as those made by Balmer. It was shown that Swineheart had offered the timber in controversy to other parties for $6,000, and had stated that he had authority to sell the same.

On behalf of the appellees, Colvin testified that he and the Williamses were in the cooperage business. They purchased the timber on the land in controversy. The contract for the purchase was entered into in writing on September 15, 1919. This contract was introduced in evidence. Witness stated that they had paid $32,500 on the contract; that at the time they entered into the contract for the purchase of the timber they had no knowledge or information of any claim of appellant to the timber. They first heard that appellant claimed some interest in the land about October 1,1919. Witness stated that he had-been negotiating’ for the purchase since September 12, 1919; that neither he nor the Williamses were interested in the Gillett Lumber Company. Their purchase was made in good faith. They purchased the timber from H. A. Strode, who conducted the negotiations for the Gillett Lumber Company. The deed which the contract of purchase called for was executed and delivered between the 1st, 2nd and 3rd of October, and the cash payment of $32,500 was -made at the time of the delivery of the deed. Before the cash payment was made witness had heard rumors to the effect that the appellant had filed suit against the Gillett Lumber Company in regard to the purchase of the timber. Witness made no effort to verify the rumors, as he and his associates knew nobody in the transaction except the Gillett Lumber Company. Witness, at the time he made the first deposit, knew that the appellant was making a claim, but they did not know of any claim of the appellant to the timber in controversy before entering into the contract for the purchase of the same. The contract was not fully executed and the same delivered until after October 1st, but witness considered the deal fully consummated before then, except the delivery of the deed.

The testimony of S. R. and J. L. Williams on behalf of the appellees was substantially to the same effect as the testimony of Colvin. The written executory contract for the purchase of the timber was introduced in evidence, showing that the same was executed on the 15th day of September, 1919, and was signed by Strode, as agent for the Gillett Lumber Company, and by Colvin 'and the two Williamses.

Witnesses who were directors and stockholders of the Gillett Lumber Company testified to the effect that there was never any resolution of the board of directors of the company, a corporation, authorizing its secretary and treasurer, Balmer, or the president, Swineheart, to sell the timber in controversy; that there had 'been no meeting of the stockholders or the board of directors for the purpose of considering the sale of timber in controversy to the appellant. The corporation was under the control of five directors; that the last meeting of the directors was held in 1919 for the purpose of surrendering the charter of the company and closing up the business; that the last meeting prior to that time was in February, 1918.

Swineheart, the president, among other things, testified that Balmer, the secretary and treasurer, who lived at Bluffton, Ohio, had written him to the effect that he was offering the timber for sale. At first he did not protest, but after he found what Balmer was trying to do he did protest. He called on Carpenter, the agent of the appellant, on- August 27th, with the abstract and intended, to leave it yith hipa, but ub soon as he found opt the terms upon which Balmer had offered the timber he would not sign such a contract; that Strode, a real estate man, sold the timber to Colvin and the two Williamses. He stated that Balmer had never discussed with him the sale of. the timber. He testified that the sale of the land to Colvin and the two Williamses was in good faith, and the contract was not the result of conspiracy between the Gillett Lumber Company and them to cheat and defraud the appellant. -

Balmer testified that he was not authorized by resolution of the board of directors to enter into a contract for the sale of the merchantable timber to the appellant, and that he never discussed the matter with any of the members of the board. He and two of the directors lived at Bluffton, Ohio, and Mr. and Mrs. Swineheart, the other two directors, lived at Gillett, Arkansas. He stated that Wise and the other directors did not have any knowledge of the letters and telegrams that passed between witness and the appellant. He denied that there was ever any conspiracy between the directors of his company and Colvin and the two Williamses to cheat and defraud appellant in the sale of the timber. Witness had never seen Colvin or the Williamses. The sale was made to them in good faith. Witness had made an offer to sell the timber to other parties beside the appellant, but none of the directors knew about it. Other directors testified substantially corroborating the testimony of Swineheart and Balmer to the effect that there was no meeting ,of the directors to authorize either the president or the secretary to sell the timber in controversy, and their testimony was also to the effect that Balmer had never discussed the contemplated sale of the timber to the appellant with any of them. Their testimony shows that there was a meeting of the directors and a resolution passed by the ¡board September 22, 1919, authorizing the president to employ H. A. Strode to make the sale of the land in controversy, and also a resolution authorizing the president and secretary to make a deed conveying the timber in controversy to Colvin and the two Williamses, and there was still a third resolution of the board on the first of October, 1919, authorizing the president and secretary to execute a corrected deed to the same parties.

Upon substantially the above facts, the court found that Balmer had no authority to sell the timber and no authority to execute the contract which .appellant seeks to have specifically performed; that the letters and telegrams upon which the appellant relies to prove the con-» tract were sent by Balmer without the knowledge and consent and without the authority of the board of directors of the Gillett Lumber Company; that such company was not bound by the acts of Balmer. The court found further that the contract entered into between the Gillett Lumber Company and Colvin and- the two Williamses was a good and valid contract, entered into without any knowledge on the part of Colvin and the Williamses of the letters and telegrams that had passed between Balmer and the appellant; that Colvin and the Williamses had fully performed their contract. The court thereupon entered a decree dismissing the appellant’s complaint for want of equity, from which is this appeal.

1. The appellant contends that the appellees have not, in their separate answers, specifically raised the issue that the secretary and treasurer of the Gillett Lumber Company was-without authority to enter into the contract for the sale of the timber in controversy; nor have they specifically raised the issue that the Gillett Lumber Company, a corporation, itself had not decided upon and authorized a sale of its timber. Appellant contends, that, before proof could be made upon these issues, it was necessary for the answer to specifically set them up. Appellant relies upon the cases of Simon v. Caffe, 80 Ark. 67, and Winer v. Bank of Blytheville, 89 Ark. 435, to sustain its contention. But the facts of those cases clearly differentiate them.from this case.

In Simon v. Caffe, a corporation was sued -on a note indorsed by it. There was no denial of the existence of the corporation, and no denial of the indorsement, and we merely held that where a business corporation is sued upon an indorsement by it of a promissory note and seeks to avail itself of the plea of ultra vires, or want of power on the part of the corporation or its officers or agents to make such indorsement, then it is necessary to set up in its answer that the corporation had no power to make such indorsement and that its officers or agent acted without power in making the same. In discussing this question in Simon v. Caffe, supra, we said: “But a corporation cannot avail itself of a want of power or lack of authority of its. officers to bind it unless the defense is made on such grounds. ’ ’ Citing Thompson on Corporations, 7617, 7619. These citations are repeated in Winer v. Bank of Blytheville, supra, and in the latter case what the author stated is quoted and the quotation clearly shows that the author was discussing the defense of ultra vires. That is what this court had in mind in the case above mentioned, and the words “or lack of authority,” used by Chief Justice Hill in Simon v. Caffe, supra, were used synonymously with the words “want of power.”

The powers of a business corporation are derived from the State by compliance with the laws of its incorporation and the receiving of its charter. The power of its officers is derived from the corporation itself through the action of the stockholders and managing board. Sec. 1717, C. & M. Digest. The powers of the corporation itself and of its officers must not be confused with the authority of its officers or agents. In City Electric Street Ry. Co. v. First National Exchange Bank, 62 Ark. 33-41, we held that “whatever power the president and secretary of business corporations have to act for the corporation in business matters must be delegated and special. The ministerial affairs of a corporation “are presumptively special, and the directors are the only general agents when acting as a board. The officers of a corporation, as such special agents, have no power to bind it except within the limits prescribed by the charter and by-laws; and persons dealing with such officers are charged not only with notice of the authority conferred, but also of the limitations and restrictions contained in the charter and by-laws.” 2 Thomp. Cor., sec. 1600.

Now, if a corporation seeks to avail itself of the defense of ultra vires, or a want of power to make a contract, it must plead that special defense; but if a corporation seeks to avail itself not of the defense of a want of power, but that it did not enter into the contract upon which it is sued, and that therefore there was no such contract, it may avail itself of such defense by denying the existence of such contract and pleading in its answer that it did not enter into any such contract. Such answer raises the issue that there was no contract, and places the burden upon the plaintiff to prove it, and when the issue is thus joined the corporation may show the lack of authority upon the part of its officer or agent to enter into such contract.

This is' the second appeal in this case (see 143 Ark. 97). On the first appeal we held that the complaint stated a cause of action for a specific performance, and that such a decree could be awarded if the proof showed that Balmer had authority to bind the Gfillett Lumber Company 'by his letters and telegrams to the appellant. On the former appeal we said: “It is true, the exhibits to the complaint do not disclose who Balmer is, nor what authority he had to act for and bind the defendant. But that is a matter of proof. The complaint alleged a valid contract for the sale of the timber, and the exhibits do not conflict with that allegation. When the case has been developed, these exhibits may or may not prove sufficient to bind the defendant. That will depend on Balmer’s authority tQ act for it.”

At the trial from which this appeal comes the proof as to Balmer’s authority to bind the Gillett Lumber Company was fully developed, and we are convinced that -a decided preponderance of the evidence shows that Balmer had no authority to bind such company. The preponderance of the evidence, indeed, the undisputed evidence, shows that Balmer, on his own motion, without the knowledge or consent of the other directors, issued and sent the letters and telegrams upon which appellant relies to prove a binding contract between it and the Gillett Lumber Company for the sale of the timber in controversy. These letters and telegrams were not signed by Balmer as secretary of the company, and were not on the company’s stationery. There is an utter absence of proof on the part of the appellant to show that Balmer had any authority to make the sale in controversy, except as might be gathered by what Balmer himself did and said in the premises.

But no principle is better established than that one dealing with an agent is .bound to ascertain the extent of his authority. Oliver Construction Co. v. Erbacher, 150 Ark. 549. “One dealing with an agent not clothed with general authority, nor with authority to act, is bound to discover whether the agent had authority to bind his principal.” Pierce v. Fioretti, 140 Ark. 306. A secretary of a corporation has no authority, by virtue of his office, to sell the property, the corpus of the corporation. That must be done by authority of the directors and stockholders. If Balmer, therefore, had any authority to make the sale of the timber in controversy, it must have been special authority conferred upon him by the stockholders and the board of directors. It was incumbent upon the appellant to ascertain the extent of his authority to make the contract upon which it grounds its action. City Elec. Ry. Co. v. First Nat. Exchange Bank, supra; Grant v. Burrows, 139 Ark. 16. Appellant could not prove Balmer’s authority as special agent by his acts and declarations in the premises. The fact that he assumed to act does not show that he had authority to act, and there was no testimony other than his own statements in the letters and the assumption by him of authority to act in the negotiations.

The undisputed testimony shows that Balmer was not authorized by the stockholders or board of directors to sell the timber in controversy. There was no testimony to prove that the Gillett Lumber Company clothed him with apparent authority to make such a contract. There was no testimony in the record to prove ratification by the Gillett Lumber Company of the unauthorized contract between Balmer and the appellant. The testimony is to the contrary. Therefore let the- decree be affirmed.


author: Hart, J.,

text:
    Greer v. Greer.
    Opinion delivered October 16, 1922.
    1. Trusts — evidence to establish resulting trust. — A resulting trust in land may be established by parol evidence, but the evidence must be clear, positive and satisfactory.
    2. Trusts — sufficiency of evidence. — In a suit to declare a resulting trust in favor of children for realty taken in exchange for their deceased father’s homestead, evidence held sufficient to establish the trust where title to the new property was taken in their mother’s name without their consent.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Eard Greer and Beulah Huett brought this suit in equity against Ted Greer, -Jewel Rainbolt, Lafayette Greer, Nina Greer -and Ed Rainbolt, to establish a resulting trust in their favor in certain property situated in the town of Morrilton, Arkansas, which is described in the complaint.
    The defendants asserted title in themselves, and denied the trust.
    The plaintiffs and defendants, except Ed Rainbolt, were the children and heirs at law of W. L. Greer, deceased. Ed Rainbolt is the husband of Jewel Rainbolt, one of the defendants. At the time of his death, W. L. Greer owned a farm in Conway County which constituted his homestead. lie died in 1908, leaving q will in which he devised his homestead in bis widow, Lee R. Greer, for and during her natural life, and at her death to go in equal parts to his children, who are the parties to this action and his sole heirs at law.
    By a subsequent clause of his will, the testator directed certain other property to be sold and divided among his children. He stated in his will that he had already made an advancement to his son, Eard Greer, in an amount of about $100 more than he had given his other children, and directed that this should be taken into consideration in distributing the proceeds of the property directed to be sold under his will. After his death his widow continued to reside on the homestead with her minor children.
    In February, 1912, the widow desired to move to the town of Morrilton, and with the consent of her children exchanged the homestead for the house and lot in controversy in this case. The homestead comprised 120 acres and was worth at the time about $2,000 or $2,500. She exchanged the property for a house and lot in town owned by J. S. Nichols, which was of about the same value. On the 5th day of February, 1912, the widow, Lee R. Greer, Eard Greer, Beulah Huett and Lafayette Greer executed a deed conveying said homestead to J. S. Nichols. The deed recited a consideration of $1 and other good and valuable considerations. On the same day Nichols executed to Mrs. Lee R. Greer a deed to the town property involved in this suit. In 1914 a petition was filed in the chancery court for the removal of the disabilities of Nina Lee Greer and Vance Montague Greer, minors, to enable them to make a deed to their interest in said rural homestead. The petition states that Nina Lee Greer was sixteen years of age and that Vance Montague Greer was twenty years of age. The chancery court removed their disabilities for the purpose of conveying their interests in said homestead.

      It was further decreed that their mother should hold the' town lot with remainder over to said minors. The plaintiffs, Eard Greer and Beulah Efuett, were not parties to the proceeding’s.
    The proceeding’s for the removal of the disabilities of the minors was had in chancery court on the 18th day of May, 1914. On the same day Yance Montague Greer and Nina Greer and Esther Jewel Greer, now Jewel Bainbolt, executed a deed to J. S. Nichols conveying their undivided interest in said rural homestead of 120 acres. The consideration recited in the deed was $1 and other good and valuable considerations. Mrs. Lee Greer died in the latter part of the year 1915. Thus far the facts are undisputed.
    The plaintiff introduced evidence tending to show that it was the intention of the parties that they should have the same interest in the town property as they had in the rural homestead.
    On the other hand, the defendants introduced evidence tending to show that it was understood that their mother should have a life interest in the town property and at her death that the remainder should go to the minor children. This evidence will be stated in detail in the opinion.
    The chancellor found the issues in favor of the plaintiffs, and decree was entered accordingly.
    To reverse that decree the defendants have duly prosecuted an appeal to this court.
    J. Allen Eacles, for appellants.
    An express trust cannot be proved by parol evidence. 103 Ark. 174; 45 Ark. 481.
    The Settlement was, in fact, an amicable family settlement and was binding on appellees. 98 Ark. 98. Amicable family settlements are to be encouraged. 15 Ark. 275; 41 Ark. 270; 102 Ark. 243; 64 Ark. 22.
    An express trust must be established by proof that is clear, convincing and satisfactory. ' 79 Ark. 425; 71 Ark. 373; 75 Ark. 451; 3 Pom. Jur. sec. 1040.

      Strait S Strait, for appellees.
    Equity will decree a constructive or resulting trust on behalf of a person who furnishes the purchase money. 54 Ark. 499; 64 Ark. 155; 9 Ark. 518; 13 Ark. 187; 47 Ark. 470; 80 Ark. 379; 72 Ark. 456; 51 Ark. 351; 92 Ark. 55; 84 Ark. 160; 34 Ark. 212; 72 Ark. 456; 101 Ark. 451.
    The decree of the chancellor was correct, and it should be affirmed.
   Hart, J.,

(after stating the facts). The chancellor found a resulting trust in favor of the plaintiffs in the town property in the same proportion as their interest was in the rural homestead. This was on the theory that it was the intention of the parties at the time the exchange of the real property was made that they all should have the same interest in the town property as they had formerly had in the rural homestead. In this connection it may be said that a resulting trust in land may be established by parol evidence, but the evidence must be clear, positive and satisfactory. Spradling v. Spradling, 101 Ark, 451, and Harbour v. Harbour, 103 Ark. 273.

Tested by this rule, we do not think that the finding on this point in favor of the plaintiffs is against the clear preponderance of the evidence.

Eard Gree^ and Beulah Huett are the principal witnesses for the plaintiffs, and Nina Lee Greer and Jewel Rainbolt are the principal witnesses for the defendants. The principal witnesses are all parties to the suit, and as such are vitally interested in the result.

The plaintiffs testify in clear and positive terms that they éxecutéd the deed conveying the rural homestead to Nichols because their mother wished to exchange it -for the house and lot in Morrilton in order that she might move to town with her minor children. They further stated they did not intend to relinquish their re? mainder interest in the property; that they intended to have the same interest in the town property as they had held in the homestead in the country, and did not know to the contrary until sometime after their mother’s death.

On the other hand, the two defendants last mentioned are equally positive that it was the intention of the parties that the plaintiffs should have no interest whatever in the town property. The defendants gave as a reason for this that their father had made certain advancements to the plaintiffs in his lifetime and that this was done for the purpose of equalizing their respective interests in their father’s estate.

They also testified that the plaintiffs were present when their disabilities were removed, and understood that the chancery court in that proceeding decreed their mother an estate for life in the town property with the remainder over to the minors. Ed Rainbolt attempts to corroborate their testimony in this respect.

We think that the testimony of the defendants is whollyinconsistent with the other facts and circumstances in the case. The chancery decree removing the disability of the minors and establishing- their interest in the town property was not rendered until about two years after their mother and the plaintiffs had executed their deed to Nichols, to the rural homestead.

The chancery decree recites that the mother was present and agreed that the town property should 'be decreed to her for her natural life, with the remainder to her minor children. If the plaintiffs had been present and had agreed to this proceeding, it is likely that their consent also would have been recited in the decree and their appearance entered to the proceeding just as in the case of their mother. The fact that this was not done, and that the chancery decree was made two years after the plaintiffs had executed their deed in the exchange of the lands, are strong circumstances tending to show that the plaintiffs were not present when the chancery proceedings were had, and did not agree that their interests in the town property should be divested out of them. Thd plaintiffs could not be bound by the chancery decree unless they were present and knew of its rendition*

Again, it is contended by the defendants that the deed was made for the purpose of equalizing the respective shares of the children in their father’s estate. They claimed that their father had made certain advancements to the plaintiffs in his lifetime and that the plaintiffs had relinquished their claim in the homestead in order to compensate the defendants for the advancements that they had already received at the hands of their father. Their father’s will, however, contradicts their testimony in this respect. He had other lands which he directed in his will to be sold and the proceeds to be divided among his children, taking, into consideration the fact that he had already made a net advancement to Eard Greer, one of the plaintiffs. This showed that it was not necessary for the plaintiffs to relinquish their interest in the homestead in order to equalize the respective shares of the children in their father’s estate.

Therefore, we think that the attending circumstances strongly corroborate the testimony of the plaintiffs, and that the evidence establishing a resulting trust in their favor is clear and satisfactory.

It follows that the decree must be affirmed'.


author: Hart, J.

text:
    Hess v. A. L. Ferguson Lumber Company.
    Opinion delivered October 16, 1922.
    1. Appeal and error — conclusiveness of chancellor’s finding.— A chancellor’s finding not against the preponderance of the evidence will not be disturbed on appeal.
    2. Mechanics’ liens — notice before filing lien. — Under Crawford & Mioses’ Dig., § 6917, providing that subcontractors, wishing to avail themselves of the mechanics’ lien act, shall give 10 days’ notice to the owner before filing their liens, one who furnished materials under a direct contract with the owner was not required to give such notice.
    3. Mechanics’ liens — parties.—Where materials were sold di.réetly to the owner of land, and he was liable to the person furnishing them as upon an original undertaking, it was the owner’s debt, and it was unnecessary, in a suit to enforce a material man’s lien, to make the contractor a party.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Appellees brought this suit in the chancery court to enforce a lien upon certain real estate of appellant in the sum of $2,379.45, alleged to be due for materials sold to appellant and used by him in the construction of a dwelling house.
    J. H. Anderson, the manager of the Ferguson Lumber Company, was the principal witness for appellees. According to his testimony, he sold to Wallace V. Hess lumber and other building supplies to be used by him in the construction of a dwelling house in the city of Fort Smith, Arkansas. Hess called Anderson over the telephone before he commenced to build his house and asked him if he knew B. M. Wallace, a carpenter. Anderson replied that he did. Hess then asked Anderson what kind of a man Wallace was. Anderson replied that he had not known Wallace very long, but so far as he knew he was a very good man. Anderson stated further that Wallace was building some other houses in the city and seemed to- be getting along very nicely. Hess then said that he was figuring on getting Wallace to build him a house, 'and Anderson replied that he did not know how Wallace was financially. Hess then said, “That will not make any difference; I have got to pay the men for their work every Saturday night, and I want to pay the material bill myself.” After some further conversation Hess said that he would give the job to Wallace, and was figuring on buying the material from appellant.Hess told Anderson that Mr. Wallace would be around in a day or two to get some of the material. Anderson furnished materials for appellees to Hess for building his dwelling house and garage. The lumber furnished amounted to $2,679.45 and there was a balance due and unpaid of $2,379.45 at the time this suit was brought. Appellees filed a mechanics ’ lien within the time allowed by the statute, but no notice of filing same was given to Hess. Hess repeatedly promised, to pay the bill, and acknowledged that he had bought the materials and owed for the same. After putting off the payment of the bill from time to time on account of not having the money, Hess finally told Anderson that the time for filing the lien had expired and that he did not intend to pay for the materials. The materials were charged on the books of appellees to Wallace Y. Hess, by B. M. Wallace.
    George P. Meadows was also a witness for appellees. According to his testimony, he kept the books of appellees, and knew .Wallace Y. Hess. He had a conversation with Hess about the account sued on. He came into the office one day to see Anderson about the account. Anderson was not in, and Hess told Meadows to tell Anderson that he would pay the account as soon as he could get the money due on some property which he was selling. This was in July or August, 1920, after the materials had been furnished.
    Wallace Y. Hess was a witness for himself. According to 'his testimony he made a contract with B. M. Wallace to construct the house and furnish the materials to be used in erecting it. Hess did not buy the material from appellees. Hess denied having told Anderson that he owed for the materials and would pay for the same. The contract between Hess and Wallace for the construction of the house was exhibited in evidence, and it showed that Wallace was to furnish the materials.
    Wallace was a witness for Hess, and testified that he purchased the materials from appellees. He also stated that he paid $300 of the purchase price. Hess gave him a check for the $300, and he indorsed the check to appellees.
    The chancellor found the issues in favor of appellees, and the case is here on appeal.

      John II. Vaughcm, for appellant.
    The court epred in overruling the demurrer to the complaint.
    The testimony was not sufficient to show that there was a contract between Hess and the lumber company, whereby Hess was to pay for the lumber. 38 Conn. 445; 27 Cyc. 51. Consent alone is not sufficient. 27 Ont. App. 364; 27 Cyc. 51.
    The contractor was a necessary party, and should have been made a codefendant. 122 Ark. 141; 144 Ark. 464; 51 L. R. A. 76; 114 Ark. 468; C. & M. Digest, sec. 6928.

      Hill & Fitshugh, for appellee.
    The demurrer should have been overruled. No defect of parties was pleaded. C. & M. Digest, secs. 1189-1192. This can only be raised by special demurrer, and is waived of not taken advantage of. 95 Ark. 32; 33 Ark. 497 ; 44 Ark. 202: 49’ Ark. 277.
    Where an original contractor brings suit there is no necessity for notice of a lien. 93 Ark. 277. The lien grows out of the material furnished that goes into the building. 51 Ark. 302; 30 Ark. 568; 49 Ark. 475.
    The fact that Hess had a contractor who agreed to furnish the material and erect the building did not release Hess from liability. 93 Ark. 277; 76 Ark. 292; 40 Ark. 429; 42 Ark. 285; 20 Cyc. 182; 20 Am. & Eng. Ency. Law (2nd Ed.), 448.
   Hart, J.

(after stating the facts). The chancellor found that Hess purchased the materials for the construction of his house from appellees and agreed to pay for the same. This finding is in accord with the testimony of Aaderson, the manager of appellees. The materials were charged on the books to Hess by Wallace. The bookkeeper of appellees testified that Hess admitted to him that he owed the account and would pay the same as soon as he collected some money due him on the purchase price of some property he was selling.

Hess denied having agreed to pay for the materials, and is corroborated by Wallace. The original contract was made over the telephone. The testimony of Anderson and Hess as to what the contract was is in direct and irreconcilable conflict. Each one is corroborated by facts and circumstances introduced in evidence.

The finding of the chancellor in favor of appellees is not against the clear preponderance of the evidence, and for that reason, under the settled rules of this court, it will not be disturbed on appeal!

It is next insisted that the decree should be reversed because appellees did not give ten days ’ notice before the ■filing of their lien, as required by sec. 6917 of Crawford & Moses’ Digest. The material was furnished under a direct contract with the owner, who was liable as on an original undertaking, and the notice required by the statute was not necessary. ,

Sec. 6935 of the Digest provides that all persons furnishing things or doing work provided for by this act shall be considered subcontractors, except such as have contracts therefor directly with the owner, proprietor, or his agent, or trustee. So it has been held that if a person enters into a contract with the owner of the land to furnish material by which the owner becomes liable therefor, such person furnishing the material is not a subcontractor and is entitled to recover judgment therefor against the owner of the land, and also to a lien on the building constructed thereon. Leifer Manufacturing Co. v. Gross, 93 Ark. 277.

It is also contended that the judgment should be reversed because Wallace, the contractor, was not made a party to the suit, and reliance is placed upon Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, and Cruce v. Mitchell, 122 Ark. 141. In each of these cases the goods were sold to the contractor, and suit was brought against the owner without making such contractor a party.

In the present case the materials were sold directly to the owner, and he was liable to the person furnishing the materials upon an original undertaking. It W-as his debt, and no useful purpose could bave been served by making the 'contractor a party. Then, too, the record shows that the contractor had become a nonresident of the State, and service could not be had upon him, although he was named as a party defendant in the complaint.

It follows that the decree must be affirmed.