author: Mehaffy, J.

text:
    Hardin v. Russell.
    Opinion delivered October 17, 1927.
    1. Deeds — manual delivery. — Manual delivery of a deed need not be made by the grantor, but delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance; the question being one of intention on his part.
    2. Appeal and error — conclusiveness of chancellor's finding.— The finding of the chancellor relative to the grantor’s intention to part with a deed as an effective conveyance will be sustained, unless against the preponderance of the evidence.
    3. Deeds — loss of control. — Unless the grantor actually loses, control and dominion over his deed, there is no delivery sufficient to effect a conveyance of title.
    4. Deeds — intention to lose control. — In a suit to have certain deeds declared void, evidence held sufficient to sustain the chancellor’s finding that the deed was not delivered with intention to lose control or dominion over it.
    Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Tessie M. Billings and G. 0. Patterson, for appellant.

      J. J. Montgomery and Webb Covington, for appellee.
   Mehaffy, J.

The appellees, plaintiffs below, brought suit in the Johnson Chancery Court to have certain deeds declared void and canceled. They alleged that William N. Russell, on the 18th day of March, 1924, made deeds to certain property to Susie Hardin and Olivia Acord; that, at the time he made said deeds, said Russell was afflicted with Bright’s disease, had been for some time, and was feeble in body and mind and incapacitated to transact any kind of business, and that, while he was in this condition, the defendants took advantage of his feeble and weak condition and induced him to sign the deeds. In other words, they alleged that he was mentally incapacitated, and also alleged undue influence.

The defendant answered, admitting the making of the deeds, but denying all other material allegations of the complaint.

At the trial, proof was introduced on the question of the delivery of the deed. Russell died a few days after the execution of the deed, and tlie chancellor found that it had never been delivered. The facts with reference to the delivery of the deed are substantially as follows: L. J. McMillan testified that Mr. Mayfield did the writing; he wrote the deeds.* When they were drawn, Mayfield had Mrs. Russell to come in. When both deeds were written, Mr. Russell doubled the will up and stuck it back in the envelope, and then got up and signed the deeds.

B. W. Hardin, the husband of Susie Hardin, testified that he was not present when the deeds were made, and that he delivered the deeds to the parties after Mr. Russell’s death. That he was obeying instructions at the time he made the delivery. He said that Mr. Russell told him to tend to his will and tend to his business. The deeds were sent out there to be put in the safe and be locked up. None knew the combination but witness and Mr. Russell. Witness knew what he had done with the deeds, because he put them back in the envelope. Mr. Mayfield brought them out there.- He also testified: “Mr. Russell told me to tend to his will and tend to his business. He told me about the deeds several times.”

Witness put the deeds in the safe, according to Mr. Russell’s directions, and they were there until his death. They were with the will. The seal had not been broken. They were in a large envelope with the indorsement on the back, “This is my will and deeds.”

N. A. Mayfield, justice of the -peace, who wrote the deeds, testified that he drew the deeds under the direction of Mr. Russell, and took Mrs. Russell’s acknowledgment. She could not write, but touched the pen while witness made a cross-mark. “After the deeds were finished Mr. Russell had me lay them back, and called for a piece of paper, and had that addition to the will drawn. He called for an envelope, and. some one went to the store and brought back a long blank envelope, and he took the instrument he had in his hand, those deeds and the addition to his will, and folded them up and put them all in that envelope, and sealed it up. He asked me to write on there, his will and deeds, and I did. He asked me to lake them over there and give them to Mr. Hardin and put them in the safe and lock them up. I took them and delivered them to Mr. Hardin.”

Olivia Aeord testified that the deeds were signed on the 18th day of March, and that Mr. Russell died on the 5th day of April.

There was testimony introduced by both parties as to Mr. Russell’s capacity and also as to undue influence. There was also testimony to show that Mr. Russell could scarcely read or write, and Mrs. Russell could neither read nor write. But this testimony about undue influence, incapacity and the condition -of the parties need not be set out,- because we think the important question, and the one that determines this case, is whether or not the deeds were delivered. It has been repeatedly held that a manual delivery need not be made by the grantor, but the delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance, and the question of whether the deed had been delivered is largely one of intention on the part of the grantor. This question of intention is to be determined from the evidence, and unless the finding of the chancellor is against the preponderance of the evidence, his decree will be affirmed.

In this case we do not think the finding of the chancellor is against the preponderance of the evidence. Appellant calls attention to a number of oases,- but we do not think that this case comes within the rule announced by either of them. In one of the cases cited by appellant the court said, quoting from another decision of this court:

“To constitute an instrument an escrow, it is absolutely necessary that the deposit of it should be irrevocable; ‘that is, that when the instrument is placed in the hands of the depository it -should be intended to pass beyond the control of the grantor for all time, and that he should actually lose control of ánd dominion over the instrument; for, in case the deposit is made in furtheranee of a contract between tlie parties, the contract must be so complete that 'it remains only for the grantee or obligee or another person to perform the required condition, or for the event to happen, to have the instrument take effect according to its import’.” Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C 385.

In this case it is true that B. W. Hardin, one of the appellants, testified that Russell requested him to deliver the deeds to the grantees after Russell’s death. In explaining how he gave him these instructions, however, this witness said:

‘ ‘ Q. How were you directed ? ’ ’ And he answered: “Mr. Russell told me to attend to'his Vill and attend to his business. Told me time and again. Q. To attend to his business? A. Yes sir. Q. This is the instructions you had? A. Yes sir.”

The instructions that he gave to the justice of the peace who wrote the deed were, not to deliver to the grantees or any person for the g’rantees, but to deliver them to Hardin to be put in the safe. Russell himself put his will and the deeds together in an envelope and sealed them up and directed that they be put in the safe, and we do not think that this showed the intention of the grantor that the papers should pass beyond his control for all time. We do not think it shows that he actually lost control of and dominion over the deed, and if he did not, hen, according to the decisions of this court and the decisions relied on by appellant, there was ho delivery.

Another case referred to and relied on by appellants is the case of Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497, 24 Am. St. Rep. 326. In that case, while the court says that the grantor does not have to put it out of his physical power to procure possession of it again, yet it holds that it must be delivered to the third person for the grantee without reservation and with the intention that it shall take effect and from that time operate as a transfer of title.

We do not think that the facts in this case show that the deeds in question were so delivered.

Another case relied oil by appellants is Standiford v. Standiford, 97 Mo. 239, 10 S. W. 837, 3 L. R. A., 299. The court in that case said: “To make a deed effective, there must be a delivery, actual or constructive, to the grantee or to some person for his use during the lifetime of the grantor. Whether a deed has been delivered or not is a mixed question of law and fact, dependent largely upon the intention of the parties. * * * Each case must stand on its own peculiar facts. It may be actual or constructive, by word or act, to the grantee directly or to another for him, and a delivery may sometimes be made without the grantee parting with the custody of the instrument. It*is sufficient if, after the grantor has signed, sealed and acknowledged the deed, he make some disposition of it from which it clearly appears that he intended that the instrument should take effect as a conveyance and pass title.”

In the case last referred to the deed was signed, handed to a third person, and he was directed to file it for record. And when it was suggested that it might not be prudent to do this, the grantor then said, ‘Take the deed and keep it safely.’ And the facts clearly showed that it was his intention that it be delivered-to the grantees.

The next case is Foster v. Mansfield, 37 American Decisions 154, 3 Metc. (Mass.) 412, and in that case the deed was handed to a third person to be delivered to the. grantee at a. future time.

Here the only testimony in any way tending to show that it was the intention of the grantor that these deeds should be delivered is the .statement of Hardin, and in explaining how the grantor instructed him, he shows clearly that he did not instruct him to deliver the deeds.

This court has said: “Manual delivery of a deed by the grantor and a formal acceptance by the grantee is not necessary to constitute a delivery of an instrument in law. The delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance. * M. M. Johnson executed this deed and placed it of record, and the original deed remained in the-clerk’s office for sixteen years.,” Lee Hardware Co., Ltd. v. Johnson, 132 Ark. 462, 201 S. W. 289.

■ This court said in a case involving the delivery of a deed: “"While the numerical weight of the testimony is against the appellee, we do not think there is a preponderance of the evidence against the finding of the chancellor in holding that there was not a delivery of the deed with the intent to pass title. We have said that the question -of delivery is generally one of intention, as manifested by acts or words, and that there is no delivery unless there is an intention on the part of the actors in the transaction to deliver the deed in order to pass the title immediately to the land conveyed, and that the g’rantor shall lose dominion over the deed.” Bray v. Bray, 132 Ark. 438, 201 S. W. 281.

As we have already said, we do not think the evidence in this case shows'a delivery of the deed with the intention that the grantor shall not thereafter have any control or dominion over it. It is a question largely of intention to be determined by the evidence, and we think the chancellor ’is finding is supported by a preponderance of the evidence, and the decree is affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Chicago, Rock Island & Pacific Railway Company v. Robinson & Company.
    Opinion delivered October 17, 1927.
    1. Carriers — sufficiency of evidence of negligence. — In a suit by á shipper against the carrier to recover damages to an interstate shipment of potatoes resulting from delay in transit, evidence of carrier’s negligence held sufficient to go, to the jury.
    2. Carriers — notice of claim as condition precedent. — In a shipper’s suit against the carrier to recover damages to an interstate shipment of potatoes, resulting from the carrier’s negligence in transit, no notice of the claim' or filing of such claim was required as a condition precedent to recovery, but the shipper must prove negligence to recover.

      3. Carriers — notice of claim for damages. — Under the act of Congress regulating interstate shipments, where the giving of a notice of claim! is required, such notice is a condition precedent to recovery, but in such case plaintiff need not prove negligence or fault on the part of the carrier, since he is an insurer.
    4. Carriers — burden of proving negligence. — -In a shipper’s suit against the carrier to recover damages for negligence in transporting an interstate shipment of potatoes, the burden of proving negligence was on the shipper, so that an instruction that the initial carrier is an insurer, and liable for all damages, except as result from fault of shipper of goods, or the act of God, or public enemy, was erroneous as permitting recovery without negligence.
    5. Courts — conclusiveness of federal decisions. — State courts, in construing the act of Congress regulating interstate shipments, are governed by the construction placed on the act by the United States Supreme Court.
    6. Pleading — interstate shipper — evidence as to market value.— In a shipper’s action against a carrier to recover damages to an interstate shipment resulting from the carrier’s negligence, it was within the discretion of the court to admit testimony as to its market value, and to permit the complaint to be amended to include an allegation as to a decline in the market.
    7. Appeal and error — right to complain of surprise. — Defendant on appeal cannot complain of an amendment of the complaint as taking it by surprise, when it failed to request a postponement of trial in order to secure new evidence.
    Appeal from Sebastian Circuit Court, Greenwood District; JoJm E. Tatum, Judge;
    reversed.

      Thos. 8. Buzbee and Geo. B. Pugh, for appellant.

      Boy Gean, for appellee.
   Mehaeey, J.

The plaintiff, appellee here, brought suit against the appellant in the Sebastian Circuit Court, alleging that, on or about tbe 24th day of June, 1924, appellees delivered to appellant’s station agent at Abbott, Arkansas, two carloads of Irish potatoes to be shipped in interstate commerce to Holman Produce Compairy, St. Louis, Missouri. That, at the time they were delivered for shipment, they were in good, sound and first-ela.ss condition and quality, but, when delivered at St. Louis, they were decayed and had to be sold at a loss, and that tbe damage occurred by reason of delay in transit.

Defendant answered, denying- the material allegations of the complaint.

S. L. Robinson, one of the partners of Robinson & Company, testified that, in June, 1924, he inspected the two cars of potatoes in question at Abbott, Arkansas. Did not look at all of them. This was while they were being loaded. Mr. Fulgium had grown the potatoes, and Robinson said that they had bought them from him. That he was not present when the hills of lading were issued. The potatoes were loaded in stock-cars, the kind of cars that plaintiffs usually ship in. They were good potatoes, and, if transported in the usual method and manner to St. Louis, they should have arrived there in good condition. Did not know where they were to be shipped when inspection was made. That he knows nothing about their condition in St. Louis. Witness had full authority to represent Robinson & Company. After the inspection witness left, and they afterwards bought the potatoes by telephone. He gave Mr. Fulgium no instructions. They told the agent that the potatoes would have to go by Hulbert. That was the usual and customary route for shipping potatoes from that point.

J. Gr. Fulgium testified, in substance, that he lived at Abbott, Arkansas; was a grower of potatoes, and loaded the two cars in question. That they were shund and in good condition, and thinks that there was nothing about the potatoes that would prevent them being shipped to St. Louis if properly handled. That he had the bill of lading issued, and signed it. Does not know what time of day on the 24th they finished loading-, and does not know what time the potatoes left Abbott. Had shipped potatoes to St. Louis before, and they were shipped by way of Hulbert and the Frisco over the Rock Island. Sold the potatoes over the telephone and was directed by Mr. Robinson to ship them out. June 24th is about the time they wind up the summer crop of potatoes. That he does not know the people to whom the potatoes were 'shipped. Just directed to ship them to Holman Produce Company at St. Louis. The potatoes were taken to the station in sacks. They were plowed up that day and sacked in the field. The sacks were lianled to the station in wagons, twenty to thirty sacks in each load. Witness thinks they had one car loaded and another one started when Mr. Robinson left. Had shipped potatoes in stock-cars before. They are not exposed to the sun to amount to anything, and would not be while standing in the railroad yards, as there would be other cars by the side of them. 'Most of the time it takes three days and sometimes it takes four to go to Chicago. Has seen potatoes in Chicago that came through all right over the Rock Island. Potatoes will keep three or four days without damage. They were all right when loaded on the 24th and ought to have been all right on the 28th. That is not too long to keep them in the cars.

Lem Robinson, recalled, testified that potatoes in the condition these were should remain in good condition for three or four days. But they will not remain in good condition if permitted to stand in the heat without moving.

Sid L. Robinson testified, in substance, that he had had experience in shipping fruit and produce, and kept up with the approximate running time of various trains from one place to another. The customary time used in carrying a shipment of potatoes from Abbott, Arkansas* to St. Louis, Mo., over the Rock Island by -way of Hulbert and the Frisco, is thirty-six hours. Cars arrived at St. Louis Saturday morning. That he saw the cars there Sunday morning. The wholesale markets are open at twelve o’clock at night and close by early morning — • something like seven or eight o ’clock. This was carload stuff, to be handled on the wholesale market. If the cars arrived at St. Louis at seven or eight or ten o’clock Saturday morning it would be too late for the Saturday market. Potatoes in good condition were worth around $2.50 to $2.75 to $3 per hundredweight Saturday morning. That he examined the potatoes, and they showed they had been out too long’ and shrunk a good deal, and there wore a few spots on the sacks where rotten potatoes had wet the sacks. He testified that lie did not authorize any carrier or agent to hold these cars for orders. They were sold to Holman Produce Company, and were rejected on account of their condition. That he went to St. Louis and sold them to the Holman Produce Company. Made the best disposition possible. The potatoes in their damaged condition were worth about $1.90. Loss on one car was $232.78, on the other $234.37. It was necessary to sort the potatoes. Mr. Keys sold these potatoes to the same man he had-shipped them to. That was done after he had had his loss, and it had to be done to get them accepted. The difference between the price at which he bought them and what he paid represented the damage. -If the .potatoes had not been damaged, one car would have been worth $623.26, and he got for that car $486.40. The other car would have been worth $614.92, and in its damaged condition its fair market was $480.70'.

He also testified that he does not know how long it takes to get a car from Abbott, Arkansas, to Booneville. Does not know what time the train ran nor what time the cars were loaded. Bill of lading was dated the 24th, but the cars could have gone out -on the 25th and not been damaged. He -opened some of the -sacks at St. Louis. Thinks it was Monday when he first saw them, and they were still in the cars. That they had sold the potatoes to Holman Produce Company as good potatoes, and agreed -on the price by wire. May have sent a wire. The Holman Produce Company refused to accept the draft. He could have taken the potatoes without paying the draft, but he did not do so. That they were trying to dispose of the potatoes to the best advantage. They were damaged some between Saturday and Sunday, and the longer they would stay the worse they would get. It is usual to ship potatoes in cattle-cars, and potatoes shipped in cattle cars ought to ke'ep three or four days. Ought to keep four days if you keep them moving. Shipped these potatoes on the theory that they would be in St. Louis on the second morning after they were shipped. Never authorized anybody to hold car-s for orders. The carrier is supposed to make delivery or notify the shipper. 'Was not notified by the railroad company. Went to, St. Louis after, receiving- a wire from Holman or Keys. Does not know wliat condition the potatoes were in on their arrival in ¡St. Louis. Did not see them Saturday, and did not know when they left Abbott. Knows they were damaged from decay Monday morning, and knows that if cars are left on the track and not moving they will decay.

H. Gr. Snyder, general agent of the Frisco Railroad, testified about the movement of the cars, and several witnesses testified for the defendant as to the movement of the cars, but it is unnecessary to set out their testimony.

Appellant’s first contention is that there was not sufficient evidence to justify the court in submitting the case to the jury, and that the court should have given a peremptory instruction for the appellant. We do not agree with the appellant in this contention. We think there was sufficient evidence of negligence to require the submission of the case to the jury.. These shipments, however, were interstate shipments, and the plaintiff alleged in this complaint that the damages resulted from delay in transit.

This court said in a recent case, decided on May 16,1927, in speaking of the provisions of the bill of lading: “Where the plaintiff brings suit under the proviso and alleges negligence on the part of the carrier in transit, the burden of proof is upon him to prove negligence alleged.” St. Louis-San Francisco Ry. Co. v. Rouw Co., 174 Ark. 1, 294 S. W. 414.

This court said in another recent opinion: “This is an interstate shipment, and the law, as declared by the Supreme Court of the United States, must govern.” St. Louis-San Francisco Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 359.

In each of the above cases the case of Barrett, Pres. of Adams Express Co., v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. ed. 857, decided by the United States Supreme Court April 13, 1925, was discussd and relied on as controlling in suits involving interstate shipments. The United States Supreme Court, in discussing the act of Congress, among other things said:

“It will he noted that both the Cummins Amendment and the bill of lading provision make a double classification of claims, to-wit, (1) those for loss due to decay or damage while being loaded or unloaded or damaged in transit, which we will call transit claims; and (2), those for loss otherwise sustained, which we will call non-transit claims. The Cummins Amendment permitted the carrier to require, as a condition precedent to recovery, the filing of a non-transit claim within four months, and in such cases, to require suit to be instituted within two years. In the case of transit claims it forbade the carrier to require the filing of a claim as a condition precedent to recovery, but authorized a requirement that suit be instituted within two years. ” * * * It must bo assumed that Congress intended to make the classification on a reasonable basis, having regard to considerations deemed sufficient to justify exceptions to the rule. The element of carelessness or negligence is important.” Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. ed. 857.

The Supreme Court in the above case also called attention to the proviso, which is as follows: “Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. * * * We hold that the second clause must be read as above indicated, that carelessness or negligence is an element in each case of loss, damage or injury included therein, and that, in such cases, carriers are not permitted to require notice of claim or filing of claim as a condition precedent to recovery.”

So in this case there was no notice required. Plaintiff in this case does not rely on any damage or injury due to delay or damage while being loaded or unloaded, but he relies solely on damage in transit by carelessness or negligence.

Under the act of Congress regulating interstate shipments in the cases that require notice, the giving of the notice is a condition precedent to recovery. 'But in those cases the plaintiff, having given notice, does not have to prove any negligence or fault on the part of the carrier. The carrier is an insurer. But in this case, as it is alleged that the damage was caused by the delay in transit, no notice is required, but the right of recovery depends upon negligence.

As we have already said, we think the evidence sufficient on the question of negligence to entitle plaintiff to have the question of negligence submitted to the jury, and for that reason appellant’s peremptory instruction was not proper. But, since this action is based on negligence, and the burden is upon the plaintiff to prove negligence, it follows that plaintiff’s instruction number 'one was erroneous. That instruction reads as follows:

“You are instructed that the initial carrier of freight in interstate commerce is an insurer of the goods, wares or merchandise delivered to, and accepted by, such carrier for shipment, and as such insurer is liable to the shipper for all damage or decay occurring to such goods, wares or merchandise while being transported by such carrier, except such damage or decay as results from the fault of the shipper, the inherent nature of the goods shipped, an act of God, or the public enemy. ’ ’

This instruction would permit a recovery without any negligence. And, since we hold that the action is based on negligence, and negligence must be proved, we -think that, instead of giving' that instruction, the court should have instructed the jury that the plaintiff would have to show that the injury or damage was the result of the negligence of the carrier.

We deem it unnecessary to set out the other instructions because, from the view we fake of this case, it is one based entirely on negligence of the carrier. We are governed by the construction of the act of Congress by the United States Supreme Court, and that court holds that, in cases like the one at bar. no notice is required. but that the plaintiff must prove negligence in order to recover.

The appellant also contends that the court erred in permitting- plaintiff to introduce evidence of market value. It was within the discretion of the court to permit this testimony, and permit the complaint to he amended so as to in chide an allegation as to the decline in the market. If defendant was taken by surprise and unable at the time to meet this new evidence as to damage, it would have had a right to have a postponement of the trial until it could be prepared to meet it, hut this it did not ask and it cannot now complain of the introduction of this testimony. Before one can complain of the introduction of testimony on the ground that it was without opportunity to take testimony or prepare its defense on that issue, one must ask the court for a postponement for that purpose.

It is unnecessary to discuss the other questions argued in briefs of counsel, and, for the errors above mentioned, the case will be reversed and remanded for a new trial.


author: Humphreys, J.

text:
    Robb v. Woosley.
    Opinion delivered May 30, 1927.
    1. Master and servant — liability for employees’ act — instruction. — In an action against the owner of a farm and his manager for the death of a tenant and son, alleged to have been shot by the manager during or after an altercation which arose over the manager’s attempt to cut hay, an instruction that, if the manager, returning with a gun, did not renew the effort to cut hay and engaged with the tenants in a new encounter, the owner would not be liable held not erroneous as assuming the abandonment of the contest as to the right of possession of the hay field.
    2. Trial — repetition of instructions. — The trial court is not required to duplicate or repeat instructions.
    3. Trial — argumentative instruction. — In an action against the owner and manager of a farm for the wrongful death of a tenant and son, alleged to have been shot during an altercation concerning the cutting of hay, an instruction that if the manager at the time of the killing had ceased to pursue his employment for the owner, the latter would not he liable unless he aided or encouraged the commission of the homicide, held not erroneous as argumentative.
    4. Master and servant — liability for acts of employee — jury question. — In an action for the death of a tenant and son against a farm manager, who killed them, and the owner of the farm, whether the manager had ceased to pursue his employment at the time of the killing held for the jury.
    5. Witnesses — conversations with decedents. — In an action for a wrongful killing, testimony of defendants as to conversations and transactions had with decedents was admissible where the estates of decedents were not involved; otherwise if their estates are involved.
    6. Trial — general objection to testimony. — In a consolidated suit for a wrongful killing brought for the widow and next of kin, and on behalf of the estate of decedents, admission of testimony of defendants as to conversations and transactions with decedents over general objection held not error, where no restriction or limitation of the testimony to eases brought for benefit of the widow and next of kin was asked.
    7. Trial — consolidated suits — restriction of testimony. — On the trial of two consolidated suits, evidence admissible in one of the suits but not in the other should, on request, be restricted to the suit in which it is admissible.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, Judge;
    affirmed.

      Gautney & Dudley and M. P. Huddleston, for appellant.

      Bloch $ Kirsch, for appellee.
   Humphreys, J.

Two suits were brought to tbe October, 1925, term of the circuit court of Greene County, First Division, by the administrator of the estates of S. E. Piety and Noble Piety against appellees to recover damages . for shooting and killing the Pietys. S. E. Piety was killed instantly, and suit was brought for the benefit of his widow and next of kin under § 1075 of Crawford & Moses’ Digest. Noble Piety lived for an hour after he was shot, and suit was brought for the widow and next of kin under § 1075 of Crawford & Moses’ Digest and for the benefit of his estate under § 1070 of Crawford & Moses’ Digest. Woosley was joined as a defendant, on the theory that, at the timo the shooting occurred, Stepp was engaged in cutting hay for him, and that the killing of the Pietys occurred while he was acting for Woosley as his servant and employee in attempting to cut the hay. The suits were tried together, resulting in a judgment in each case for appellee, H. W. Woosley, and a judgment against Stepp in favor of appellant for $300 for Noble Piety’s estate and a judgment in favor of appellant for $1,000 for the benefit of the widow and next of kin of S. E. Piety, from which appellant has prosecuted an appeal to this court.

W. W. Stepp was the manager of a farm in Greene County owned by H. W. Woosley, upon which S. E. Piety resided as a tenant, with his wife and four children, Noble being twenty-one years of age, and the oldest child. S. E. Piety had about one hundred acres of the farm rented, and claimed to have rented the meadow or hayfield on the place known as the Collins hayfield. Woosley and Stepp claimed that Piety had not rented the Collins hayfield and was not entitled to cut the grass on same. Stepp, as manager and employee of Woosley, attempted to cut the hay with a team and mower, and, after he had made three rounds, S. E. Piety and his sonj Noble, came to the field and protested against Stepp cutting the hay. A fight ensued between Stepp and S. E. Piety, each knocking the other down, after which Stepp hastily retreated to the house occupied by Mrs. James F. Sanders, in a woods-lot near the hay-field. Stepp was boarding there. After he left the Pietys they unhitched the team and drove it into the woods-lot and tied the horses. Stepp procured a single-barrel shotgun and went to the place where the Pietys had tied or were tying the horses. Mrs. S. E. Piety testified that Stepp was gone only a short time, and, when he came back, he started around the horses toward Mr. Piety, at which time Noble stepped out and begged him not to shoot his father, whereupon he shot the boy; that, when he shot the boy, Piety ran toward Stepp, who started back toward the house, working with the gun all of the time, and, when they got up towards the woods, Stepp turned toward Piety, who then turned to run, and shot him in the back, and, as quick as he could reload the gun, shot him again in the shoulder; that, after going to the house again, he returned and got the team.

W. W. Stepp testified that S. E. Piety ordered him out of the hay field, and, while discussing the matter, struck him; that he got up and backed away, Stepp following ; that he got an opportunity to knock Piety down; that, when Piety got up, he reached back and got the hoe out of Noble’s hand, whereupon witness ran across the cotton patch and jumped a fence; that S. E. Piety struck at him a time or two with the hoe, and he ran on to the house; that he looked back and saw the Pietys unhitch the team and drive it into the woods-lot; that they went back toward.the mower, so he decided to go get the team and come back home; that he procured a gun, and that when he got within one hundred feet of the team, he requested the Pietys to leave him alone, as he was going to get his team and go home; that the Pietys lined up, S. E. Piety in front, Noble in the center, and Mrs. Piety in the rear; that the father and mother advised Noble to cut witness in two; that, when witness reached for his lines, Noble struck at him with a hoe, at Avhich time he shot Noble, and ran toward thehouse; that Piety followed, and, when close upon Avitness, he turned and shot Piety; that witness then got his team, and that he and his son went to town.

In the course of the trial Woosley Avas permitted, over the objection of appellant, to testify to transactions and conversations occurring between S. E. Piety and himself relative to the hay and hay field Avhich Piety claimed to have rented. W. W. Stepp was permitted, over the objection of appellant, to testify relative to transactions and conversations had Avith both S. E. Piety and Noble Piety'in reference to the hay field and the hay.

Appellant’s first contention for a reversal of the judgment is that the court erred in giving instruction number 1, on its oavu motion, which is as follows:

“It is conceded that Stepp was in the employ of Woosley, and that he was acting for Woosley as his servant and employee in attempting to cnt the hay. If you find, from a preponderance of the evidence, that, while attempting to cut the hay, Piety and his son, or either of them, claimed the hay land and attempted to resist Stepp or prevent him from cutting the hay, and that, as a result of this attempt to cut the hay and as a result of this renewal and in pursuance of his effort to cut the hay, shot and killed father and son, and that the shooting and killing of father and son was the direct result of the resistance or attempted resistance on the part of Piety and his son to prevent Stepp from cutting the hay or taking possession thereof, then your verdict will he for the plaintiff against the defendants Stepp and Woosley, unless you find that the killing was done in the necessary self-defense of Stepp; however, if you find from the proof in the case that, when Stepp returned with his gun, he did not renew his effort to cut the hay and was not engaged in cutting the hay, and that he and the Pietys entered into a new encounter, even though you may find that the now difficulty grew out of anger or ill will and hatred occasioned by the first difficulty, still your verdict should he for the defendant Woosley, and you will also find for the defendant Stepp if you find that he acted in his necessary self-defense.”

Appellant assails the instruction upon the ground that it does not present the real issue to the jury. Appellant’s theory of the case is that Stepp killed Piety while acting for Woosley as his servant and employee in attempting to cut the hay; while appellee’s theory is that Stepp had abandoned his intention to cut the hay and was attempting only to remove his team from the scene of the action at the time he killed the Pietys. Appellant argues that the instruction assumes that there was an abandonment of the contest as to who had a right to the possession of the hay field, and a renewal.

We do not think the instruction susceptible to the interpretation placed- upon it by appellant. We agree with the construction placed upon it by appellees to the effect that it told the jury that, if Stepp shot and killed Piety while he was cutting the hay and as a part of the first encounter or a renewal thereof, both he and Woosley were liable; on the other hand, that, if he was not engaged in the cutting of the hay, which was the service for which he was employed, then Woosley was not liable. The instruction presents the real issue in the case to the jury for determination. Since the instruction presents both appellant’s and appellees’ theory to the jury for consideration, it was not error to refuse to give appellant’s requested number 4, which covered his theory of the case. The trial court is not required to duplicate or repeat instructions.

Appellant’s next contention for a reversal of the judgment is that the court refused instruction number 1-, requested by him, defining the phrase “within the scope of his employment.” The phrase was sufficiently defined in instructions numbers 8 and 10 given by the court.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give his requested instruction number 3, which is as follows:

“You are instructed that the employer who puts his agent or employee in a place of' trust or responsibility, or commits to him the management of his business, is responsible when the agent, acting within the scope of his authority, through lack of judgment or discretion, or under the influence of passion, inflicts an unjustifiable injury upon another, even though he go beyond the strict line of his duty or authority.”

This instruction is fully covered by instructions numbers 6, 9 and 10 given by the court.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 8, which is as follows:

“You are instructed that no particular time is required in which a servant may cease to be in the employ of his master, and in this case, even though you may find that the time intervening between the first difficulty and the killing was short, yet, if you further find that Stepp, at the time of the killing, had ceased to pursue his employment for Woosley, then the defendant Woosley would not be liable, and your verdict will be for him, even though you may find that the killing was not in Stepp’s necessary self-defense, unless you further find that the defendant Woosley advised, encouraged, aided and abetted Stepp in said killing.”

It is suggested by appellant that the instruction is erroneous, (a) because it is argumentative, (b) it left to the jury the determination of the question as to whether Stepp had ceased to pursue his employment for Woosley. We do not think the objections are tenable.

We have examined the objections made by appellant to the other instructions, and find no reversible error in them.

Appellant’s last contention for a reversal of the judgment is that the court erred in admitting the testimony of both Woosley and Stepp as to conversations between them and transactions had by each of them with each of the decedents, S. E. Piety and Noble Piety. The record reflects that Woosley had no transactions or conversations ■ with reference to the hay field with Noble Piety, but only with S. E. Piety. It shows, however, that Stepp had conversations and transactions with both in reference thereto. Two of the consolidated cases were suits by the administrator for the benefit of the widow and next of kin in which neither of the estates were interested. Under the principle announced by this court in the case of St. L. & S. F. Rd. Co. v. Fithian, 106 Ark. 491, 155 S. W. 88, the testimony was admissible in the consolidated suits for the benefit of the widow and next of kin. The third suit consolidated with these two was for the benefit of the Noble Piety estate. The testimony of the witnesses was not admissible, in so far as it might affect the result in the suit on behalf of Noble Piety’s estate, but a general objection only was made to the admission of the testimony. Appellant did not request the court to restrict or limit the testimony to the two cases in which it was. admissible. Had such request been made, it would have been the duty of the court, upon the admission of the testimony, to restrict its application to the two cases brought on behalf of the widow and next of kin. Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S. W. 885.

No error appearing', the judgment is affirmed.


author: Wood, J.

text:
    Norris v. Scroggins.
    Opinion delivered June 20, 1927.
    1. Mortgages — power of sale. — While the power of sale contained in a mortgage or deed of trust is valid, and a sale thereunder may confer a good title, the powers of the trustee foreclosing thereunder are limited and defined by the instrument under which he acts, and he has only such authority as is thus expressly conferred upon him, together with the incidental and implied powers necessarily included therein.
    2. Mortgagors — power of sale. — Where several deeds of trust were executed by different persons to the same trustee, covering the same property, maturing at different times and for different amounts, the trustee, upon default, was not authorized to sell the property under all the deeds as if there were only one indebtedness; no such power being conferred by any of the deeds.
    3. Mortgages — mortgagee in possession under void foreclosure sale. — A mortgagee who enters into possession of the mortgaged premises under a void foreclosure sale is presumed to hold as mortgagee in possession.
    4. Mortgages — adverse, possession. — A mortgagee in possession cannot acquire title by adverse possession against his mortgagor.
    5. Estoppel — infants.—Even th.ough a life tenant estopped herself to question the title to land sold at a void foreclosure sale by permitting the purchaser to make valuable improvements, such estoppel has no application to infant remaindermen.
    6. Mortgages — redemption from void foreclosure sale. — One or more tenants in common have a right to redeem property after a void foreclosure sale for the benefit of themselves and their co-tenants, even if the latter are estopped to make such redemption.

      7. Mortgages — mortgagee in possession — redemption.—So long as the relation of mortgagee in possession under a void foreclosure sale exists, the property is subject to redemption by owners and persons having a right to redeem.
    Appeal from Union Chancery Court, First Division ; J. Y. Stevens, Chancellor;
    affirmed.

      Mahowy, Yocum & Saye, for appellant.

      Pat McN alley and Jordan Sellers and Coulter <C Coulter, for appellee.
   Wood, J.

The property involved in this controversy is two lots in the city of El Dorado, Arkansas, one 100 feet by 282 feet, and the other 28 feel by 100 feet. For convenience we will designate the larger lot as the ‘ ‘ Scroggins lot ’ ’ and the smaller lot as the ‘ ‘ Church lot. ’ ’

In 1912 Bill Scroggins and his wife executed a deed of trust to J. L. Wallace, trustee, covering the two lots and other property to secure an indebtedness of $104.25 owing to T. H. Norris, which indebtedness matured October 17, 1913. Bill Scroggins died in October, 1913, testate. His will provided that, after payment of his debts, his wife, Catherine Scroggins, should have all of the property he possessed at the time of his death for her natural life. At her death the property was to pass to their three grandchildren, Oscar Staples, Estelle Staples Ward and Ethel Staples Galbert, until they became of age, and then the property should be divided equally between Oscar Scroggins, Della Scroggins Jenkins, Mollie Scroggins Manley, William Scroggins, the same being the children of the testator and the grandchildren mentioned. It was mentioned in the will that, in the event the property could not be divided satisfactorily between the parties named, it should be sold and the proceeds equally divided between them. The will was admitted to probate on March 20, 1925.

At the time of the death of Scroggins all of his children were living and of age, and he and his wife and several of the beneficiaries under the will were living-on the Scroggins lot, and those -surviving, and residing thereon, continued to do so. In January, 1914, Catherine Scroggins, Will Scroggins, Oscar Scroggins, Della Scrog-gins Jenkins and Mollie Scroggins Manley, beneficiaries under the will, executed a deed of trust to J. M. Wallace, trustee, to secure an indebtedness to T. H. Norris in the sum of $162.50, which matured in October, 1914. This deed of trust covered also the two lots and other property. The deeds of trust mentioned were in the usual form. There is a provision in each of the deeds of trust to the effect that, in case of default in payment of the indebtedness, the trustee is authorized to take possession of the property, and, “on giving ten days’ notice of publication on the courthouse, in the county of Union, may and shall sell said property for cash in hand, ’ ’ etc. There is also a provision to the effect that the sale shall be made at such place as the trustee may designate, and also that the trustee may sell the property at private sale without notice, and a provision to the effect that the trustee shall make deed to the purchaser.

On November 25,1914, default having been made, the trustee sold both lots at one sale, and executed a deed to the purchaser, T. H. Norris. The deed made by the trustee to the purchaser, among other things, recites:

“And whereas, default having been made, the said premises were, on the 25th day of November, 1914, after fully complying with the conditions of the said deed of trust, sold at public auction to the said party of second part for the sum of $468, being the highest sum bid for said property, the said property having been duly appraised and said sum being more than the two-thirds appraised value thereof, the notice of the time and terms of said sale having been first given by published notice in the Union County Tribune. Now therefore I, said party of the first part, for and in consideration of the premises and the said sum of $468 to me in hand paid by the said party of the second part, do hereby grant, bargain, sell and convey unto the said party of the second part, and to his heirs and assigns forever, the said premises, to-wit:” (Then follows a description of the property and the date of the deed, June 21, 1916).

The widow and two or three of the children and several of the grandchildren were living on the Scroggins lot at the time of the foreclosure sale, and all of the children were living and were of age at that time. Immediately following the sale, in 1914, T. II. Norris, the purchaser, took possession of the property. The widow and adult heirs recognized the sale, and the widow and two or three of the children rented the property from Norris and remained on the same for something like a year, when they moved away. Norris - continued in possession of the property, renting the same to different parties. He made improvements thereon after his purchase — spent about $1,500 in repairs on the premises. Norris paid the taxes on the property each year, beginning with the year 1916. On June 14, 1909, Scroggins and wife executed a deed to the trustees of the M. E. Church of El Dorado, covering the lot designated as the church lot. The consideration named in the deed was $500, and on the same day the trustees of the church executed a deed of trust in favor of W. J. Pinson in the sum of $500, W. R. Morgan being named as trustee in the deed of trust. On November 25, 1921, W. R. Morgan executed what is designated as a trustee’s deed to Rhoda Wysinger, which recites that there was a default in the payment of the indebtedness secured by the deed of trust; that the property was sold at public auction under the authority contained in the deed of trust, by the substituted trustee, W. R. Morgan, and was purchased by Wysinger, who paid therefor the sum of $880. The deed recites that the property was first duly appraised and that the sum paid for same was more than two-thirds of the value thereof.

This action was instituted by the plaintiffs, the widow and heirs of Will Scroggins, against T. H. Norris, on the 30th of August, 1924, for the purpose of setting aside the trustee’s deed to Norris. Plaintiffs alleged that they were the owners of the property under the will of Scrog-gins; that T. H. Norris was in possession of the same under a trustee’s deed, which they alleged was void for the following reasons: (1) The purported foreclosure sale was had after'tlie death of the mortgagor. (2) No statement of any alleged debt was furnished to plaintiffs, and no demand was made of them. (3) No notice of any kind was given plaintiffs.- ' (4) No appraisers were appointed as required by law. (5) No appraisal was made as required by law. (6) No notice of sale was given as required by law. The plaintiffs set up that the possession of Norris was that of a mortgagee in possession, and asked that he be required to account to the' plaintiffs for the rental value of the-property. The plaintiffs, Estelle Staples Ward and Oscar Staples, set up that they were minors at the time of the sale of the property under the deed of trust, and that one of them was still a minor, and that they should be allowed to redeem the property for the benefit of themselves and their cotenants. The prayer of the complaint was for a redemption of the property and an accounting, and for all proper relief.

Rhoda Wysinger, by order of the court, was made a party defendant. She answered, and made her answer a cross-complaint against the plaintiffs and the defendant Norris, alleging, in substance, that she had no knowledge sufficient to form a belief as to the alleged claim of title of the plaintiffs under the will of Scroggins. She admitted that William Scroggins at one time did acquire title to all the land described in the complaint. She alleged that she was the owner and in possession under the trustee’s deed to the lot in controversy, designated as the church lot, and had been in adverse possession under color of title for more than fifteen years. She deraigned title from the 'Scroggins through mesne conveyances. She prayed that the plaintiffs’ complaint be dismissed so far as it seeks to recover the lot claimed by her, that her title be quieted, etc.

The defendant, Norris, answered, denying all the allegations of the complaint of plaintiffs and the cross-complaint of Rhoda Wysinger, and set up title under the trustee’s deed as above set forth, and title by limitations. •He also pleaded laches and estoppel against the widow and heirs of Scroggins.

The above are the issues raised by the pleadings. The court heard these issues upon the exhibits set forth and the depositions of witnesses, and found in favor of the plaintiffs and rendered a decree in their favor as to the Scroggins lot, and appointed a master to state an account between the plaintiffs and Norris. The court found in favor of the defendant, Bhoda Wysinger, on her cross-complaint as against the plaintiffs and the defendant, Norris, as to the church lot claimed by her, and entered decrees according to its findings, retaining jurisdiction for a final accounting.

The defendant, Norris, prosecutes this appeal.

1. The appellant claims title by his trustee’s deed, and by adverse possession thereunder. The appellant did not acquire title under the trustee’s deed, because the trustee, in making the sale of the property in controversy, did not pursue the power contained in the deeds of trust. These deeds of'.trust are separate instruments, and, although they cover the same property and name the same person as trustee, nevertheless, they were executed by different persons on different dates for different indebtednesses maturing- at different times. Neither of these deeds of trust confers authority upon the trustee,, in default of payment of the amounts due under the separate instruments, to treat these amounts as one indebtedness and to proceed to sell the property as if there were one indebtedness due by the same persons covered by one and the same instrument. In a court foreclosure there might be, upon proper showing, a consolidation of causes and all rights and equities of the parties worked out and adjusted prior to the order of sale, and one sale would be valid and binding, when effectuated under the orders and directions of the court. But, certainly, unless such power is conferred by the deed of trust, a trustee has no right to exercise such power, and in doing so he causes legal complications which necessarily would deter bidders at the sale, and thus be a legal fraud upon the makers or mortgagors in the deeds of trust or mortgages thus sought to be foreclosed.

In 19 it. C. L., page 592, § 407, it is said: “While the power of sale contained in a mortgage or trust deed is valid, and a sale thereunder may confer a good title on the purchaser, the powers of the person foreclosing thereunder are limited and defined by the instrument under which he acts, and he has only such authority as is thus expressly conferred upon him, together with the incidental and implied powers that are necessarily included therein.” See also 19 R. C. L., § 402, page 587.

There is no incidental or implied power to be derived from the power expressly conferred upon the trustee in these separate deeds of trust under review that would authorize the trustee to conduct the sale in the manner indicated by the recitals in his deed to the appellant.

In Littell v. Grady, 38 Ark. 584, speaking of the powers to be exercised by trustees in deeds of trust, this court said, at page 589:

“Parties who execute these powers are properly held to ‘uberrima fides,’ in view of the danger of oppression, and the courts of chancery have been used to interfere to prevent any unnecessary sacrifice, or unfair disregard of the rights of the debtor. Where the trustees or beneficiaries do not wish to become the subjects of this jealousy, and are diffident of enduring the test, they may always invoke the aid of equity, and- foreclose under its supervision. It is always the safe plan for all parties.. ‘Sales under powers,’ says Mr. Perry (Trusts, § 602, X), ‘in deeds of trust, or mortgages, are a harsh mode of foreclosing the rights of the mortgagor. They are scrutinized by courts with great care', and will not be sustained unless conducted with all fairness, regularity, and scrupulous integrity. Upon very slight proof of fraud, or unfair conduct, or of any departure from the terms of the power, they will be set aside’.”

In Badgett v. Keating, 31 Ark. 400, it is said: “The general rule is rightly adhered to, that the power can only be executed in the mode, at the time, and upon the conditions prescribed in the deed according to its provisions.” And in Stalling v. Thomas, 55 Ark. 326, 18 S. W. 184, we said: “The right to foreclose a mortgage at private sale is derived from the power conferred by the mortgage, and, independent of it, does not exist. The instrument creating such a power determines its extent, as well as the manner and conditions of its exercise; and those relying on such a sale must show that it was made in obedience to this power.” Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585. See also Lesser v. Reeves, 142 Ark. 320-329, 219 S. W. 15.

It is wholly immaterial whether the makers of these deeds of trust were actually defrauded by the method pursued by the trustee in treating the deeds of trust as one instrument. It is simply a case where appellant acquired no title under his purchase at the trustee’s sale, because no power was conferred upon the trustee by the deeds of trust to make the sale as the same was conducted by him. As we have seen, the sale and the trustee’s deeds were void unless the deeds of trust conferred upon the trustee the power to make the sale as he did make it, which is not the case. The appellant therefore acquired no title by the trustee’s sale and deed made thereunder.

2. The appellant testified that he took possession of the property following the foreclosure of the deeds of trust in 1914 and he had been in possession ever since, making improvements on the premises to the extent of fifteen or sixteen hundred dollars. His first tenant, after taking possession of the property, was Catherine Scrog-gins, the widow of Bill Scroggins, and some of the Scrog-gins children. They rented the property for about a year after Bill Scroggins died, and appellant has continued to occupy the property through tenants since that time. But this possession of appellant, under his void trustee’s deed, does not vest him with title under the seven-year statute of limitations.

“Where a mortgagee enters into possession of the mortgaged premises under a void foreclosure,' he is presumed to hold as mortgagee in possession, and limitation does not run in his favor, or in favor of his grantee, against a suit by the mortgagor. * * * The mortgage relation still continues between the purchaser at such void sale and the owner of the equity of redemption, the right of redemption continues, and the statute of limitations does not begin to run against the right until actual notice is given to such owner by the party in possession under such void sale, that he claims to hold in some other right than that of mortgagee or assignee of the mortgage, or he clearly makes it known by his acts that he holds adverse to the mortgage.” 2 Jones on Mortgages, page 781, § 1152.

We have recognized the above doctrine announced by Mr. Jones in Swift v. Ivery, 147 Ark. 141, 227 S. W. 600, where we said: “Appellants therefore, being in the attitude of a mortgagee in possession, acquired no title by adverse possession,'as pleaded and claimed by them.” That doctrine is as applicable to the facts of this record as it was. in the above case, which is quite similar. Begardless therefore of what may be the rule in other jurisdictions, this court is committed to the doctrine that a mortgagee in possession cannot acquire title as against the mortgagor. Therefore the appellant had no title by adverse possession to the .Scroggins lot.

We deem it unnecessary to determine, under the facts of this record, whether the widow and four adult children of Bill Scroggins would be estopped by their conduct from maintaining this action to redeem the Scroggins property, even if this were a suit by them alone against the appellant for that purpose. For, if it be conceded that these adult plaintiffs would be estopped by their laches from maintaining an action to redeem the Scroggins lot from appellant, it is certain that the plea of estoppel by conduct could not avail the appellant as against the minor plaintiffs, who had a vested interest in the property under the will of their grandfather, Bill Scroggins, as we construe such will. Conceding’, then, without deciding, that the widow and adult heirs estopped themselves from maintaining’ this action against the appellant by their conduct in permitting the appellant' to take possession of the property under the trustee’s deed and in allowing him to make valuable improvements thereon and paying the taxes and as the landlord and owner, nevertheless this conduct on their part would not operate to divest their title and interest in the property and vest the same in the appellant. Most assuredly, then, this conduct on the part of the adult devisees would not operate to divest the title of the devisees of Bill Scroggins who were minors at the time of such conduct, nor preclude or estop them from maintaining their action to redeem the Scroggins property from the mortgage. They were devisees under the will, owners of an undivided interest in such property.

In 31 C. J. 1005, § 33, it is said: “As a general rule the doctrine of estoppel has no application to an infant, even though he had reached the age of discretion.” One of the plaintiffs, Oscar Staples, was still a minor, and appears by his next friend, and another, Estelle Staples Ward, had just reached the age of 21 when this action was instituted. They asked to redeem the property for the benefit of themselves and their cotenants. They unquestionably had the right to do so. Mr. Pomeroy says:

“Any person who holds a legal estate in the mortgaged premises, or in any part thereof, derived through, under, or in privity with the mortgagor, and any person holding either a legal or equitable lien on the premises, or any part thereof, under or in privity with the mortgagor’s estate, may also in like manner redeem from the prior mortgage. No such redemption, however, is possible unless the mortgage debt is due and payable, nor unless the mortgage is wholly redeemed by payment of the entire amount of the mortgage debt. The debt being a unit, no party interested in the whole premises, or in any portion of them, can compel the mortgagee to accept a part of the debt, and to relieve the property pro tarto from the lien. Furthermore, if the person redeeming lias only a partial interest in the premises, and there are other partial owners also interested in having the lien of the mortgage removed from their estates — such as co-owners, life tenants, reversioners, remaindermen, and the like — he cannot compel them, in the first instance, to adv'ance their proportionate shares for the purpose of paying off the debt; he must himself redeem the whole mortgage, and his only equity against them consists in his right to enforce the mortgage upon their estates as a security for obtaining a subsequent contribution.” 3 Pam. Eq. Jur., § 1220.

The trial court decreed that the appellant be repaid for the cost of his improvements, with interest, as a part of the terms of the redemption from the mortgage. Appellees are not complaining of the decree in this respect, and surely the appellant has no right to complain. Appellant is still a mortgagee in possession, and, as long as that relation obtains, the property is subject to redemption by those having that right, under the doctrine announced by Mr. Pomeroy, supra.

3. Concerning the church lot, the plaintiffs below, the appellees here, the widow and heirs of Scroggins, have disclaimed any title or interest in the church lot, leaving the controversy as to that lot to be determined between her and the apxxellant. In view of what we have already said, it becomes unnecessary to give the controversy between appellant and appellee, Rhoda Wysinger, any sexoarate treatment. We have already held that appellant, being a mortgagee in possession of both lots, could not acquire title thereto by adverse possession, and he had no title thereto under his trustee’s deed. Appellee, Wvsinger, has title under a trustee’s deed, regular on its face, and sufficient, in the absence of any attack made thereon and proof of its invalidity, to establish her title to the church lot and to have the same quieted in her. There is no plea or proof of laches as to her.

The decree is therefore’correct in all respects, and the same is affirmed.


author: Kirby, J.

text:
    Sanders v. State.
    Opinion delivered July 4, 1927.
    1. Witnesses — age op infant. — A girl 14 years old is presumed to have common discretion and understanding, and an objection to her competency to testify was properly overruled after her testimony was concluded and a rigid cross-examination made.
    2. Witnesses — competency—discretion of court. — The question of the competency of a child as a witness is addressed largely to the discretion of the trial judge, and his discretion is not reviewable in the absence of clear abuse or manifest error.
    3. Criminal law — harmless error. — In a prosecution for rape, error in an instruction as to rape was harmless where the jury convicted defendant of the offense of carnal abuse.
    4. Criminal law — improper argument op prosecuting attorney.— In a prosecution for rape, the error of a statement of the prosecuting attorney that a letter which was excluded would “stick” defendant was not cured by a general instruction that the jury should not allow argument to influence them unless supported by law and testimony.
    Appeal from Saline Circuit Court; T. E. Toler, Judge;
    reversed.

      Brouse & McDaniel, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Kirby, J.

Appellant prosecutes this appeal from a judgment of conviction against him of carnal abuse upon Ms trial upon an indictment for rape. He urges that the evidence is not sufficient to support the verdict; that the court erred in not withdrawing from the jury the testimony of the prosecuting witness for incompetency, she being incompetent to testify; in the giving of instruction No. 9, and in permitting the unwarranted and prejudicial remarks of the prosecuting’ attorney in his closing* argument.

~We do not regard it necessary to set out the testimony at length, hut it will suffice to say that, after a careful consideration of the evidence, we think the jury was warranted in finding that the defendant had carnal knowledge of the girl, under the age of consent, and its verdict will not he disturbed on that ground.

No error was committed in refusing to exclude the testimony of the prosecuting witness on the ground that she did not know and understand the obligations of an oath. • She was over 14 years of age, and presumed to have common discretion and understanding, and, no objection having been made to her examination on the ground of incompetency to testify until after her testimony was all introduced and a rigid cross-examination made, the right to have the testimony excluded was waived, the objection being untimely. Flanagin v. State, 25 Ark. 92, 28 R. C. L. 450, par. 37.

Then, too, the question of the witness’ competency was addressed largely to the discretion of the trial judge, and, in the absence of clear abuse or manifest error, the judicial discretion is not reviewable. Crosby v. State, 93 Ark. 158, 124 S. W. 781, 137 Am. St. Rep. 80, and Wakin v. Wakin, 119 Ark. 514, 180 S. W. 471.

Neither can appellant complain of the error in the giving of instruction number 9, relative to the offense of rape, since the jury acquitted him of that crime and convicted him of the lesser offense of carnal abuse, in which the questions of resistance and outcry of the female are not involved, and any error-committed in the giving of said instruction was harmless. James v. State, 161 Ark. 389, 256 S. W. 372.

The court has concluded, however, that error was committed in permitting the remarks of the prosecuting attorney complained of in the closing argument. The record recites: “This note we were not permitted to introduce in evidence to show you what was in the note, I wish we could have; I believe at the time she went to Little Rock and got these witnesses and wrote this note they were laying plans to have Coon Young present and in the car on that night that this heinous crime was committed. Coon Young was not there, I know he was not there, you know he was not there. They knew this was ihe evidence that would stick them, and they did not want it before you. They have done everything in their power to prevent justice being done. That is the kind of a mother this is.”

Much of the testimony was directed to proving that Coon Young came to the dance in the car with defendant, the girls and their mother, contradicting the testimony of the prosecuting witness and her little sister, that he did not come to the dance, nor ride in the car with them; notwithstanding the mother of the girls had also testified that he did accompany them to the dance and took the two little girls out of the car and into the dance hall, leaving her and the defendant in the car a few minutes until they could follow.

It was shown that the mother had written a note to the girl which the court would not permit introduced in testimony, and the majority think that the argument and comments of the prosecuting attorney upon the fact, with the statement of his belief that the mother had come to Little Rock and got witnesses and had written the note or letter making plans to have Coon Young present in the car on the night the crime was committed out there, and his positive statement that, “Coon Young was not there, I know he was not there, you know he was not there. They knew this was the evidence that would stick them, and they did not Avant it before you, ’ ’ — was unwarranted, and necessarily prejudicial. It is true that the court gave an instruction to the jury telling them they should not alloAV any argument of the counsel to influence them in any Avay, unless it Avas supported by the Mav and testimony, but this instruction was given along with the others, the improper argument having been allowed to be made, over the objection of the defendant, and, not •haAdng been withdrawn nor the jury specially admonished not to consider it, the said .instruction could not operate to remove the prejudice against the rights of the defendant in erroneously permitting the prosecuting attornev to make the argument. Hays v. State, 169 Ark. 1175, 278 S. W. 15; Hughes v. State, 164 Ark. 621, 243 S. W. 70.

For the error designated the judgment is reversed, and the cause remanded for a new trial.


text:
    Head v. State.
    Opinion delivered July 11, 1927.
    1. Rape — relevancy of testimony. — In a prosecution for rape upon a girl under 16 years of age, testimony of a doctor that, in his opinion, when the prosecutrix left the room where the alleged offense occurred she would have been crying, held properly excluded as irrelevant.
    2. Indictment and information — carnal abuse included in rape. —An indictment charging that defendant committed the crime of rape on a female under the age of 16 years embraced the charge of carnal abuse of a female under that age.
    3. Criminal law — repetition of instructions. — It was not error to refuse a requested instruction on reasonable doubts where it was substantially the same as a given instruction.
    4. Criminal law — harmless error. — Where an instruction was on the subject of rape, dealing with the question of consent, and did not attempt'to declare the law of carnal abuse, and defendant was convicted of carnal abuse, whether the instruction was erroneous was immaterial.
    5. Criminal law — argumentative instruction. — An instruction that if any reasonable view of the evidence is or can be adopted which admits of reasonable doubt of the guilt of the defendant, it is your duty to adopt such view and acquit the defendant, is erroneous as argumentative .and improper.
    6. Criminal law — sufficiency of evidence. — 'Evidence held sufficient to sustain a conviction of carnal abuse of a girl under the age of 16 years, over the defense of alibi.
    7. Rape — corroboration of female. — In a prosecution for rape of a female under 16 years of age, it is not necessary for the testimony of the prosecutrix to be corroborated.
    Appeal from Pike Circuit Court; B. E. Isbell, Judge; affirmed.

      Tom Kidd land Pinnix & Pinnix, for appellant.

      II. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant ivas indicted in the circuit court of Pike County for the crime of rape, committed the first day of May, 1926, upon Ruby Sain, a female person of the age of sixteen years. On the 31st day of March, 1927, he was tried under the indictment and convicted of carnal abuse, for which crime he was adjudged to serve a term of four years in the State Penitentiary. He has duly prosecuted an appeal to this court from the judgment of conviction, relying upon four assignments of error for a reversal of the judgment.

The first assignment of error is the refusal of the court to allow Dr. T. P. Alford to testify “that, in his opinion, when the prosecuting witness left the room after the alleged attack, and went into the other room, she would have been crying. ’ ’ The request for this piece of testimony was predicated upon the theory that the pain and suffering endured by a young girl during the first act of sexual intercourse through physical force of a male would necessarily cause her to cry. Great pain and suffering is frequently endured without a tear, so the offered testimony was highly speculative. The temperament of a girl would have much to do with reference to the outward manifestations of having passed through such an ordeal. The testimony was irrelevant for the reason assigned, and therefore properly excluded.

The second assignment of error is that there was a fatal variance between the charge in the indictment and the proof, the contention being that appellant was indicted for the crime of rape and was convicted, under the evidence, for the crime of carnal abuse. It is argued that the crime of carnal abuse was not embraced in the charge of rape, and that therefore the court erred in instructing upon the crime of carnal abuse. The indictment charged that appellant committed the crime of rape upon a female under the age of sixteen years, which necessarily embraced the charge of carnal abuse of a female under sixteen years of age. Henson v. State, 76 Ark. 267, 88 S. W. 965; Powell v. State, 149 Ark. 311, 232 S. W. 429.

The third assignment of error is that the court erred in refusing to give appellant’s requested instructions numbers 7 and 12. Instruction number 7 requested by appellant was, in substance, the same as instruction number 4 given by the court. Both related to the law of reasonable doubt. The court is not required to multiply instructions upon the same subject. Instruction number 12 requested by appellant is an instruction on rape, and deals with the question of consent. It is unnecessary to decide whether the instruction was correct or incorrect, as appellant was acquitted of the charge of rape. The instruction did not attempt to declare the law of carnal abuse, hence did not in any wise prejudice the rights of appellant upon the charge for which he was convicted. In connection with this assignment of error appellant contends the court erred in modifying instruction number 4 as requested, and in giving the instruction as modified. Instruction number 4 as requested is as follows:

“The court instructs the jury that the burden rests upon the State to prove the defendant guilty as charged in the indictment, and, if the evidence fails to satisfy your minds beyond a reasonable doubt of his guilt, then it is your duty to give him the benefit of such doubt and acquit him. If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, it is your duty to adopt such view and acquit the defendant.”

The court modified the instruction by striking out the last sentence and gave the instruction as modified. The last sentence is as follows: “If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, it is your duty to adopt such view and acquit the defendant.”

The excluded portion of the instruction has been condemned by this court in a number of cases as being argumentative and improper. Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 301, 284 S. W. 734; Purcell v. State, 174 Ark. 656, 296 S. W. 59.

Appellant’s fourth and last assignment of error is that the evidence is insufficient to support the verdict and judgment. Appellant argues that the testimony of the prosecutrix was. so improbable and contrary to human experience that courts and juries should not believe or attach any importance to it. The prosecutrix gave birth to a child, and testified that appellant was its father. She was sent to the home of appellant’s mother very frequently for milk and water, where appellant resided, having separated from his wife. The opportunity for sexual intercourse existed. Although her story of the particular act resulting in her conception is not entirely satisfactory, yet it could have happened just as the girl testified. It is true that appellant’s sister was in the next room, churning, but she was blind. It is admitted that appellant’s mother was not at home at the time, and that the other members of the household, including a visitor or two, were at the barn, some distance from the house. Appellant denied that he committed the crime, and testified that he was at the barn with the others at the time the crime was supposed to have been committed. His alibi was supported by other witnesses, but the jury accepted the statement of the girl as true and refused to believe the statements of appellant and his witnesses. This issue of fact was one for the jury and not for the court to determine on appeal. It was not necessary for the statement of the'prosecutrix to be corroborated upon the charge of carnal abuse. We cannot agree with the view expressed by learned counsel for appellant that the testimony of the prosecutrix was so unreasonable and contrary to human experience, that juries and courts should disregard her statements.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    American Investment Company v. Sager.
    Opinion delivered October 10, 1927.
    1. Appeal and error-keffect of former opinion. — Where an opinion on a former appeal adjudged that the answer to which a demurrer had been sustained alleged a cause for setting aside a decree of foreclosure, the trial court on a second hearing should have overruled the demurrer and heard the case on the merits.

      2. Appeal and error — reversal—amendment of pleadings. — Where the cause was reversed on former appeal for error in sustaining a demurrer to the answer, it was error on a second appeal to refuse to permit the plaintiff to amend his pleadings where he had not been given an opportunity on a former trial to develop all the issues in the case.
    Appeal from Arkansas Chancery Court, Southern District; H. R. Lucas, Chancellor;
    reversed.

      Thomas J. Moher and Evans & Evans, for appellant.

      George G. Lewis, for appellee.
   Smith, J.

William Sager owned a tract of land in Arkansas County, upon the security of which he desired to obtain a loan of $5,500, and he employed the American Investment Company to negotiate the loan. The loan was obtained, and Sager executed a note for $5,500, due ten years after date, with interest at six per cent, per annum from date until paid, and, as security therefor, a mortgage was executed and recorded from Sager on the land. At the same time sixteen notes were executed by Sager to the American Investment Company, and, to secure the payment of these notes, a second mortgage was executed and recorded. Two of these notes matured each year, one being for $165, the other for $55, totaling $220, which is four per cent, of the original loan. These notes and the mortgage securing them contain an acceleration clause, which provided that, upon failure to pay any one of them at maturity, all should mature, at the option of the holder. Default was made in the payment of the first two notes at maturity, and the investment company declared them all due, and brought suit to foreclose the mortgage securing them.

Sager and his wife, who had joined him in the execution of the notes and mortgage, were both dead at the time of the institution of this suit, which was brought against the heirs of Sager. Only one of these heirs, a son, answered, and in this answer it was alleged, in effect, that the original loan was on a basis of ten per cent, interest per annum, six per cent, of which was payable to the lender and the remaining four per cent, to the American Investment Company as agent in negotiating the loan, and it was alleged that, if the payments were accelerated as prayed for, the result would be the exaction of usurious interest. The investment company filed a demurrer to this answer, which the court sustained, and, as the defendant refused to plead further, a decree was rendered foreclosing this second mortgage. Judgment was not rendered for the $1,760, the total of the sixteen notes as prayed, but for the sum of $1,348.24, and a commissioner was appointed to sell the land in satisfaction thereof, and the heir, who had filed an answer, appealed.

The opinion rendered on the decision on this appeal appears in 170 Ark. 568, 280 S. W. 654, and we there stated the facts as they were alleged to be in the answer. This we were required to do, as we were considering the sufficiency of the answer when tested by the demurrer thereto, and a demurrer to this answer had been sustained. Upon the facts alleged in the answer we held that the indebtedness due the investment company should not be declared void as usurious, as the answer prayed it should be, for the reason that, if it was paid according to the terms of the loan contract, only ten per cent, interest would be paid, and we also said that the attempt to accelerate the payments, which the answer alleged to be interest, would not make the loan usurious, as the court of equity should have treated the acceleration clause as a stipulation for a penalty, and should have refused to fore- • close the instrument, except upon the waiver of this penalty.

Under the allegations of the answer the decree should have been rendered for only $220, the amount of the two notes then due, whereas the decree rendered was for $1,348.24. But we also stated that the decree of foreclosure should not be treated as a decree for the foreclosure of the $220 due, as a redemption might have been effected had the degree been for only that amount. Upon these facts we stated:

“It appears that the land has been sold under this decree. There remains therefore nothing to do except reverse the decree, because it was rendered for an excessive amount, and the cause will be remanded for further proceedings in accordance with this opinion.”

It was there also held that the decree had been prematurely rendered.

Upon the remand of the cause the defendant moved for a decree on» the mandate, to which motion the investment company filed a written response. In this response the investment company set out a contract, under which it had been employed by William Sager and his wife to negotiate the original $5,500 loan. This contract recites the agreement of the investment company to negotiate a loan at six per cent, and to guarantee that the title of Sager was merchantable, and that the answers contained in the application for the loan were true, and to guarantee the prompt payment of said loan and the interest thereon at maturity, if necessary to procure the loan, and to collect for and remit to the mortgagee the maturing payments of principal and interest, to keep certain insurance in force at Sager’s expense, and perform certain services in connection with the examination of the abstract of title.

Defendant filed a motion to strike the response of the investment company, and renewed the motion for a decree on the mandate, which motion and response reads as follows:

“Comes now the defendant, Andrew Sager, and moves the court to strike out the pleading filed herein,, and which the plaintiff denominates as a ‘response of plaintiff to defendant’s motion for decree on mandate.’ For cause defendant says that the said pleading is simply an attempt to reopen and retry the issues already disposed of upon the original hearing of' this cause, that this court has neither jurisdiction nor authority to rehear the said cause, but simply limited to the rendition of such decree upon the present state of the record as is ordered by the mandate filed herein. That it appears from such record that the real estate in controversy was sold to a stranger to this record for the sum of $1,450 on the............................day of..............................................................................192........., and that this defendant has been damaged in such sum, because of such sale under the erroneous decree heretofore entered herein, together with lawful interest on said sum from date of said sale. That, under the terms of the mandate aforesaid, the plaintiff is entitled to recover the sum of $220 and no more, and that such sum should go as a credit on the aforesaid amount. That, since the rendition of said decree, by virtue of partition proceedings instituted in this court, this defendant has acquired all the interest of the heirs of William and Rebecca Sager in and to the land in controversy, and that the amount due from the plaintiff as aforesaid is due and owing to him. A complete transcript of the said proceedings last referred to is hereto attached, marked Exhibit A, and asked to be made a part hereof. Wherefore defendant prays a decree against the plaintiff for the aforesaid sum of $1,230 with interest thereon from the date of said sale, and for all other proper relief.”

It was stipulated that the defendant had acquired the interest of all the other heirs of William Sager and Rebecca, his wife, the mortgagors.

The court granted the prayer of the motion set out above, and the decree recites that it was rendered upon the mandate of the Supreme Court remanding the cause, and the-motion and'response, and stipulation above referred to, from all of which the court found that the land in controversy was sold under the original decree on October 25, 1924, for the sum of $1,450, that the costs of the sale amounted to $74.45; that, at the time of such sale, there was due the investment company the sum of $220 only, 'and, because of the sale for the excessive amount wrongfully claimed to. be due, the defendant was damaged in the difference between what the land actually sold for, or $1,524.45, and the sum of $220, which was the amount rightfully then due, and judgment for this difference was awarded defendant, and the plaintiff has appealed.

Appellee here, defendant helow, seeks to uphold the decree of the court upon the theory that the former opinion adjudged the rights of the parties, and left nothing for the court below to do but enter a decree in accordance with the findings made.

Learned counsel is mistaken in the effect of the opinion of this court on the former appeal. We did not 'adjudicate the rights of the parties. For the purpose of testing the sufficiency of the allegations of the answer to constitute a defense, and for that purpose only, we .assumed the truth of the facts there alleged, and adjudged merely that a defense had been alleged which made it erroneous for the court below to render a decree in excess of $220. We said, however, that the decree rendered should not be treated as having been rendered for only the amount due, to-wit, $220, for the reason that the sale had been ordered under the decree, whereas, if it had not been for aii excessive amount, a redemption might have been effected.

The effect of the former opinion is that the court below should have overruled the demurrer to the answer and should have heard the cause on its merits.

It is admitted here that no testimony has ever been heard in the court below, and the cause will be remanded with directions to overrule the demurrer to the answer and to hear the cause on its merits.

Appellee insists that appellant investment company should be held restricted to the allegations in its original complaint, and should not be permitted to enlarge or change these allegations, for the reason that the former opinion granted no such right, and, in support of this contention, the case of Felker v. McKee, 154 Ark. 104, 241 S. W. 378, among other cases, is cited and relied upon. In that case, however, as the opinion reflects, the cause had been submitted upon its merits, and the appellant had been given ample opportunity to fully develop his case upon all the issues presented by the pleadings, and we held that, no authority having been given so to do, the appellant could not, on the remand, further develop the issues joined.

We there decided, however, that this- rule would have no application where a demurrer had been sustained to a bill and the bill dismissed without an inquiry into the. merits of the case. Nor would the rule apply in a case like this, where a demurrer to the answer had been sustained and a decree rendered on the pleadings. This is true, because the issues joined were not developed by the testimony, and parties are entitled to have a trial upon the merits, and there has been no such trial in the instant case.

Neither party questions the sale made under the original decree, and appellant asks now only the right to subject the proceeds thereof to the satisfaction of the indebtedness due it, whatever that may be, and upon the remand of the cause that right will be accorded.


author: McHaney, J.

text:
    Foster v. Dierks Lumber & Coal Company.
    Opinion delivered October 17, 1927.
    1. Cancellation op instruments — right to relief. — Equity will cancel or reform written instruments, either where there is a mutual mistake, or there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the other.
    2. Cancellation of instruments — sufficiency of proof. — To justify cancellation or reformation of a written instrument the proof must be clear, unequivocal and convincing'.
    3. Logs and logging — cancellation of timber deed — evidence.— In a suit to cancel a timber deed on the ground that plaintiff had been induced to execute it by misrepresentations, evidence held insufficient to justify cancellation.
    4. Cancellation of instruments — laches.—In a suit to cancel a timber deed on the ground that plaintiff had been induced to execute it by misrepresentations brought by an unlettered person, unable to read or write, 10 years after ascertaining what the terms of the deed were, held barred by laches.
    5. Contracts — rescission.—One induced by misrepresentations to enter into a contract must sue to rescind within a reasonable time after learning of such misrepresentations.

      Appeal from Howard Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      W. C. Rodgers, for appellant.
    ' Collins & Collins, Lake, Lake & Carlton and John S. Kirkpatrick, for appellee.
   McHaney, J.

This action was instituted by appellant against appellee, by which it sought to cancel a timber deed executed by appellant to appellee in June, 1910, conveying all the merchantable pine timber then standing on the lands described in the complaint, which gave the appellee twenty years within which to remove the timber from the land. The principal complaint appellant makes is to this clause in the deed, which gives twenty years to remove the timber, although complaint is made of a number of other clauses in the deed, appellant claiming that the agreement between him and Mr. J. H. Murray, agent of appellee, who purchased the timber from appellant, was that the timber was to be removed within three years, and that the price was agreed upon on that basis. Appellant says that he would not have executed the deed if he had known that the twenty-year clause was contained therein, and that he did not know of the other clauses of which he complains, being in the deed, nor would he have signed same with them in it if he had known it. Appellant is an unlettered person, who cannot read or write. Some time in 1913 or 1914, after the death of Mr. Murray, appellant says he had a conversation with Mr. Fred Leeper, who had succeeded to the position of Mr. Murray after his- death, in which Leeper stated, in substance, that the time was out for them to cut the timber on appellant’s land, and that they wanted to buy it again. On a trial of the case, the court entered a decree dismissing the plaintiff’s complaint for want of equity, and in the course of its opinion the court said: “Again, the record shows that ten'years ago plaintiff was fully advised of the instrument, its duration and terms, yet he serenely sat by for his own memory to fade and the evidence of other witnesses to get beyond the reach .of the courts before bringing this suit. As I view the record in this, case it would be extremely inequitable to permit plaintiff to profit by Ms own negligence.”

From this decree appellant brings the case here for review.

It is well settled under the former decisions of this court that equity has jurisdiction to cancel or reform written instruments, either where there is a mutual mistake or where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the other party, but, before it will do so, there must be something more than a mere preponderance of the evidence. It has been uniformly held under such circumstances that the proof must be clear, unequivocal and convincing. American Alliance Insurance Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Welch v. Welch, 132 Ark. 227, 200 S. W. 139. Under this rule we agree with the chancery court that the evidence does not rise to that degree of certainty that would justify a cancellation of the deed in question. Moreover, as heretofore stated, appellant knew, for a period óf ten years or more, what the exact terms of this deed were, and took no affirmative action to cancel same. The party with whom appellant made his trade has long since been dead and is unable to either affirm or deny appellant’s statements. We think it is well settled by the former decisions of this court, as said in the case of New York Life Insurance Co. v. Adams, 151 Ark. 123, 235 S. W. 412, that “one induced by misrepresentations to enter into a contract must, within a reasonable time, take advantage of his right to rescind.” His deed was dated June 11,1910. He was fully advised by Mr. V. L. Massey, acting for appellee, of the terms of the deed in 1916, and he waited until May 10, 1926, to institute this action. We therefore hold that appellant was guilty of such laches as bars his right to maintain' this ■ action. The decree of the chancery court is therefore correct, and it is in all things affirmed.