text:
    Meador v. Weathers.
    Opinion delivered January 19, 1925.
    1. Adverse possession — evidence.—Evidence held insufficient to establish title by adverse possession.
    2. Adverse possession — possession acquired under license. — To establish title by adverse possession in one who acquired possession under license, he must have given notice that he was holding adversely or his possession must have been so notoriously hostile as to' constitute notice.
    S. Reformation of instruments — Evidence.—Evidence held insufficient to warrant reformation of description in deed.
    4. Reformation of instruments — evidence.—Though parol evidence is admissible in a suit to reform a deed for fraud or mistake, the evidence to warrant reformation must be clear, convincing and decisive.
    5. Pleading — amendment.—Refusal of a petition for leave to amend an answer so as to include a prayer for reformation of a deed was not an abuse of discretion where such leave was not sought until all the evidence had been taken and the case was ready for submission.
    Appeal from Hot Spring Chancery Court; J. P. Henderson, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    Appellees brought this suit in equity against appellant to enjoin him from erecting a fence on the land described in their complaint and to quiet their title to said land. Appellant filed an answer in which he claimed title to the land in question by adverse possession.
    William A. Trigg was the original source of title under which both parties claim. William A. Trigg conveyed said lands to Sabina C. Trigg, his wife. After his death, Sabina C. Trigg, by warranty deed in common form, executed on the 6th day of June, 1901, conveyed to E. E. Meador the following land lying in Hot Spring-County Arkansas, to-wit: “Commencing 2.50 chains west of SE corner of SE% of NW%, section 33, township 6 S. and in range 19 W., and running west to Ouachita Hiver, thence south 6.50 chains, thence east to center of Half Moon Lake, thence up the center of lake to place of beginning, making in all twenty-one arid 7%/100 acres of land, more or less; being a part of the north half of southwest quarter of section 33, township 6, range 19 west.”
    After the warranty clause the deed contains the following: “and I also agree that said Meador shall join the fence with me on the bank of the Half Moon Lake.” The deed recites a consideration of $210.75 cash in hand paid by E. E. Meador.
    W. A. Trigg died in 1888, and Sabina C. Trigg in 1916. Prior to her death Sabina C. Trigg conveyed by deed to her daughter, Mrs. Fannie Weathers, all of the land which she owned in section 33, township 6 south, range 19 west, in Hot Spring County, except 60 acres, which she reserved for the purpose of selling to her son, J. H. Trigg. The consideration recited in the deed was $1,370, which was paid by Mrs. Fannie Weathers. The deed contained a misdescription, and, for the purpose of correcting it, the children and heirs-at-law of Sabina C. Trigg, who bad died interstate, executed a deed to said land under the .correct description to Mrs. Fannie Weathers, on the 26th day of September, 1921. The other appellees claim title under Mrs. Fannie Weathers, and joined with her as plaintiffs in bringing this suit.
    It appears that Half Moon Lake has to a great extent filled up, and that there are now about 50 acres of land north of it in the quarter-section above described. In July, 1921, C. D. Nelms, county surveyor of Hot Spring County, was employed by representatives of appellees to make a survey of the land described in the deed from Sabina C. Trigg to E. E. Meador. He took the description in the deed and made a survey and plat of the land, and the land covered by the description comprises about 20 acres. Soon after E. E, Meador obtained his deed from Sabina C. Trig’g, he erected a fence from the fence on his land on the north side of Half Moon Lake in a southerly direction across said lake to the fence of Mrs. Sabina C. Trigg on the south side of said’ lake. By connecting his fence with her fence in this manner he included a tract of land a part of which,was in the lake, and used it for a hog pasture. The fence has been maintained ever since that time, and E. E. Meador has used said inclosure as a hog pasture.
    According to the testimony introduced by appellees, this fence was erected under license given in the deed from Mrs. Sabina C. Trigg to E. E. Meador, and the use by him of the inclosure was permissive.
    According to the testimony introduced by appellant, he occupied the land so inclosed adversely to all others, and has continued to so hold it since the execution of the deed to him by Sabina C. Trigg on the 6th day of June, 1901. Appellants also introduced testimony tending to show that Mrs. Sabina C. Trigg agreed to convey to him all of her land north of Half Moon Lake in said north half of the SW^ of section 33, township 6 south, range 19 west, and by mistake only conveyed to him the 20% acres described in said deed.
    The testimony for appellees tends to show that the deed contained a correct description of all the land intended to be conveyed by Sabina C. Trigg to E. E. Meador. The testimony on both of these points will be ■set out and referred to more particularly under appropriate headings in the opinion.
    After the evidence in the case had all been taken, appellant asked to amend his pleadings by praying for a reformation of his deed so as to correct the description therein and give him all of said land north of Half Moon Lake in said quarter section above referred to. The chancellor refused to allow him to amend his pleadings in this respect, and found the issues in favor of appellees. A decree was entered of record in accordance with the finding of the chancellor, and it was specifically decreed that the title to the land in dispute be quieted in appellees, and that appellant be restrained from building a fence on said land.
    The case is here on appeal.

      D. I). Glover and H. M. Halbert, for appellant.

      B. W. Hme, Jr., and W. H. Mieell, for appellees.
    A deed cannot be contradicted by parol evidence, neither can one amend and ask for reformation after a submission of the case and the court has indicated what his findings will be. 158 Ark. 10, 249 S. W. 371. Parol evidence may be admitted, where the description is ambiguous, for the purpose of making it clear, but never to contradict a description. 30 Ark. 513. The deed here correctly describes the land conveyed, by metes and bounds, and defendant obtained title only to the land within the description. 95 Ark. 150. Where one enters into possession of land by permission from another, he is estopped from denying the title of that other. 84 Ark. 220; 102 Ark. 380; 98 Ark. 234. The status of permissive holding could not be changed except after notice to the real owner of adverse holding, or by overt acts indicating claim of ownership adverse to the owner. 133 Ark. 589.
   Hart, J.,

(after stating the facts). In the first answer filed by appellant, he claims title to the land in dispute by adverse possession. According to the testimony of J. H. Trigg, his mother, Sabina C. Trigg, sold to E. E. Meador about 20 acres of land and made him a deed to it under correct description. J. H. Trigg lived at Arkadelphia, Arkansas, at the time, and was looking after the farm which his mother owned near Half Moon Lake. He knew personally about the trade that was made between them and why it was made. He talked the matter over with both his mother and with E. E. Meador. He remembered why the provision was put in the deed about the fence. According to his testimony, E. E. Meador owned some land north of the land that he was buying from Mrs. Sabina C. Trigg. The latter had a fence which was built on the high ground on the south and east sides of Half Moon Lake, and the fence turned with the lake and ran up north to the north side of Mrs. Trigg’s land on the east side of the lake. The fence was not built along the section line, but was built on the high ground from Ouachita River so as to inclose the cultivated land of Mrs. Trigg on the south and east sides of Half Moon Lake. This left a strip of land of about 40 acres which was between the horn of Half Moon Lake and the river and above the south bank of the lake. The lake at this time was filled with water, and the south,end of it went west and emptied into the river, as indicated on the plat made by the county surveyor. E. E. Meador wished to ‘buy about 20 acres which adjoined his land on the north side of Half Moon Lake, and his mother agreed to sell it to him. This was a strip of land 6y2 chains wide extending from Ouachita River to the center of Half Moon Lake on the east. In other words, it was a strip of land 6y2 chains wide running south from the south boundary line of the lands already owned by E. E. Meador towards the northern boundary of Half Moon Lake. The northern boundary of the strip runs east and west 34.70 chains, and the southern boundary therefore was 28.50 chains in length. The southern boundary line of the strip extended from the Ouachita River in an easterly direction to the center of Half Moon Lake. Half Moon Lake extended from the Ouachita River in an easterly direction, and then turned north, so that both the southeastern and northeastern corners of the strip sold by Mrs. Trigg to Meador were in the center of Half Moon Lake. After Meador purchased said strip from Mrs. Trigg, he extended a fence from the southern boundary line of said strip across said Half Moon Lake and joined it with the fence of Mrs. Trigg on the south side of Half Moon Lake. This left a strip of ground inclosed in which he kept his hogs, and called it his hog pasture. According to his own testimony and that of his brother, he has held possession of this hog pasture since the execution of the deed to him by Mrs. Trigg in June, 1901. He had at all times claimed to own the hog pasture as Ms own. He admits, however, in Ms testimony, that at the time he purchased the land it was surveyed, and that he paid so much per acre for it. Under these circumstances it-cannot be said that the chancellor erred in holding that appellant had not acquired title to the hog pasture ¡by adverse possession. In the first place, the deed from Mrs. Trigg to him gave him license to join his fence with that of Mrs. Trigg on the bank of Half Moon Lake. After the execution of the deed he built a fence from his own land across Half Moon Lake and joined it to the fence of Mrs. Trigg on the south side. This fence was built under the license given him in the deed, and his use of the strip of ground called the hog pasture was permissive. It is true that he testified that he held possession of the hog pasture adversely to all persons, and in this respect he is corroborated by the testimony of his brother.

On the other hand, as we have just seen, he is contradicted by the attending circumstances and by the testimony of J. H. Trigg. He admits himself 'that he bought the land at so much per acre, and the number of acres recited in his deed and the consideration recited therein corroborate the fact that he bought the land at so much per acre. The number of acres described in the deed is about 20% acres and the consideration is $210.75. This would make a price of about $10 per acre.

Moreover, the possession of appellant having been acquired by the license given him in the deed, it devolves on him to show that he had given notice to Mrs. Trigg that he held the land adversely to her. There is nothing t.o show that he ever gave her any such notice, and his possession of the hog pasture, under the circumstances, was not sufficient to put Mrs. Trigg upon notice that he was claiming the land by adverse possession.

The construction of the fence which made the hog pasture, being permissive and being done under the license given Meador in the deed from Mrs. Trigg, in order to obtain title by adverse possession he must have given actual notice to Mrs. Trigg that he was claiming the land adversely, or his possession must have been in such a notoriously hostile way as necessarily to put the owner of the land upon notice. In other words, his actual use of the land must have been of such unequivocal character as to reasonably indicate to the owner, visiting the premises during such statutory period, that such use and occupation indicated an appropriation of ownership in another. Dowdle v. Wheeler, 76 Ark. 529, and Norwood v. Mayo, 153 Ark. 620.

The case is entirely different from Chicot Lumber Co. v. Dardell, 84 Ark. 140. There a camp was erected upon the land, and, during the whole of the statutory period, the occupant was engaged with a large force of employees in cutting the timber and manufacturing it into staves'. This was done openly, and the staves were hauled from the land to the railroad. These circumstances would clearly indicate to the owner that the occupant was holding the land adversely under claim of ownership.

In the case before us, as we have already seen, the erection of the fence was permissive, and the use of the woodland só inclosed was not sufficient to put the owner upon notice that Meador was claiming the land as Ms own.

It is next insisted that Meador was entitled to have his deed reformed so as to include, in any event, all of the land north of Half Moon Lake. We cannot agree with counsel in this contention. It is true that E. E. Meador testified that it was the intention of Mrs. Trigg to convey to him all of the land owned by her north of Half Moon Lake and that his testimony on this point is corroborated, to an extent, by that of three other witnesses. On tMs point Edward Orrell was asked if he did not know that, when E. E. Meador purchased this land from Mrs. 'Sabina O. Trigg, he bought all of the land north of the Half Moon Lake. His answer was, “Yes sir, it was the understanding.” We quote from the testimony of J. A. Holmes the following: “Q. Did Mr. E. E. Meador purchase from her (Mrs. Trigg) all .of her land north of Half Moon Lake in 1901? A. Yes sir.”

On this point we quote from the testimony of William Hart as follows: “ Q. Did Mr. J. H. Trigg or Mrs. Sabina C. Trigg ever point out to you where the hue was between Mr. Meador’s land and the Trigg land? A. Mrs. Trigg has not, but Mr. Trigg has spoken concerning that. Q. Did you understand that the lake was the line between them? A. No, he pointed out a spring that it came close to. Q. That is, that it come across the lake at the lower end and joined to this fence and then run back and hit the center of the lake? A. Yes.”

In the first place, the evidence introduced by E. E. Meador to corroborate his own testimony on this point is very general and indefinite, and lacks that clear and unequivocal character which is necessary for a reformation of a deed.. On the other hand, this testimony is flatly contradicted by J. H. Trigg and the attending circumstances. J. H. Trigg acted for his mother in the premises, and says that both Meador and his mother told him that it was the intention to embrace in the deed only the land that was described in it. He is corroborated in this respect by the description in the deed. A survey was made of the tract intended to be conveyed, and it was described in the deed by metes and bounds. This clearly indicates that there was an intention'to convey only the land which had been surveyed and described in the deed. There would have been no use in measuring the land and giving a particular description of it by metes and bounds unless that description was to- govern.

It is well settled in this State that, while parol evidence is admissible in an action to reform a deed on the ground of fraud and mistake, or either of fraud or mistake, the evidence to warrant such reformation must be clear, convincing, and decisive. Welch v. Welch 132 Ark. 227, and cases cited, and Beneaux v. Sparks, 144 Ark. 23.

Moreover, no reformation of the deed was asked until after all of the evidence had been taken and the ease was ready to be submitted to the chancellor. The chancellor refused to allow the pleadings to be amended in this respect, and, under the circumstances, there was no abuse of discretion on his part.

It follows that the decree will be affirmed.


source: Caselaw Access Project

author: Wood, J. McCulloch, C. J.

license: Public Domain

text:
    Carter v. Thompson.
    Opinion delivered January 19, 1925.
    1. Vendor and purchaser — vendor’s lien — evidence.—In a suit upon a note given in consideration of a conveyance of land, the preponderance of the evidence held to show that the deed, which was lost, contained a reservation of a vendor’s lien.
    2. Mortgages — notice of reservation of vendor’s lien. — A vendor’s lien expressly reserved in a deed will toe enforced against the purchaser’s mortgagee, though such deed is not on record, if the mortgagee claims through such deed.
    3. Mortgages — priority of vendor’s lien. — Where an heir conveyed his interest in land reserving a vendor’s lien, such lien will not be subordinated to the lien of mortgagees of his vendee who relied upon recitals in deeds of other heirs that they were the only heirs and upon an ex parte affidavit to the same effect.
    4. Vendor and purchaser — enforcement of vendor’s lien. — A vendor conveying his interest in lands with reservation of a vendor’s lien for the balance of the purchase money could not be deprived of his right to enforce such lien against his purchaser’s mortgagee toy the failure of the purchaser to disclose the vendor’s rights under the vendor’s deed which was not recorded.
    Appeal from Clark Chancery Court; C. E. Johnson, Chancellor;
    reversed.

      Culbert L. Pearce, John E. Miller and J. H. é D. H. Crawford, for appellant.
    The deed contains sufficient and proper recitals to create a vendor’s lien in favor of appellant, and this lien is not .subordinate and inferior to the mortgage liens. 27 R. C. L. 605, 606, 608; 23 L. R. A. 743; 29 Ark. 650; 37 Ark. 571; 43 Ark. 464; 50 Ark. 322'; 21 IT. S. (Law ed.) 587; 35 Ark. 103; 103 Ark. 429; 23 L. R. A. (N. S.) 1180; 118 Ark. 199; 152 Ark. 99; 27 R. C. L. 668.

      J. O. Rhyne, for appellee.
    The appellees were innocent purchasers and should be protected. 95 Ark. 582; 118 Ark. 516; 122 Ark. 445; 132 Ark. 158; 49 Ark. 207, 214; 1 Jones on Mortgages, §§ 458, 459, 710; 4 Ark. 296; 57 Ark. 427;. 1 Perry on Trusts, § 239. The deed under which appellant claims was not recorded and did not retain a vendor’s lien, as appears by Thompson’s testimony and the copy of the deed introduced in evidence. The chancellor’s finding on the facts ought not to be disturbed unless contrary to the clear preponderance of' the evidence. 121 Ark. 309; 84 Ark. 429; 91 Ark. 149. Where the defense of innocent purchaser is involved, and the party pleading it has shown that he has paid a valuable consideration, the burden rests on the other party to show that he purchased with notice. 145 Ark. 121; 108 Ark. 490; 123 Ark. 432; 84 Ark. 1; 27 it. C. L. 718; 137 Ark. 538.
   Wood, J.

On the 28th of April, 1923, Douglas Carter instituted this action against Obe S. Thompson and his wife, Eula Thompson, to which action the 'Security Mortgage Company and the Mclver Abstract Company were also made defendants. Carter alleged that on the 18th day of May, 1918, he was the owner of an undivided two-sevenths interest in 188 acres of land in Clark County, which he sold to Obe S. Thompson and Eula Thompson, his wife, on that date, for the consideration of $750, $50 of which was paid and $700 evidenced by a promissory note, payable December 1, 1918. Carter alleged that the note was secured by a vendor’s lien which was reserved in the deed to Thompson and wife; that, for reasons unknown to plaintiff, the defendants, Thompson and wife, withheld the deed from record. The plaintiff alleged that the mortgage company and the abstract company and others were claiming liens on the property, and he asked that they be required to answer and set up the nature and the extent of their claims and liens, if any, and he prayed that he have judgment against Thompson for $987.47, with interest, and that the same be declared an equitable lien upon the lands mentioned, superior to the rights of any of the defendants, and, unless the debt of Thompson was paid, that the lands be sold to satisfy the same.

The mortgage and abstract companies answered jointly, setting up their respective mortgages, and denied the allegations of the complaint. They set up that they were claiming an interest in the property under valid and subsisting mortgages executed to them by Thompson and wife; that the mortgage to the mortgage company was executed April 5, 1919, to secure a promissory note for the aggregate sum of $4,000, due April 1, 1919, which mortgage was duly recorded on April 19, 1919, that the mortgage to the abstract company was executed to secure notes in the aggregate sum of $1,117.78, due from April 1, 1920, to April 1, 1926; that the mortgage to the abstract company was subject to the mortgage to the mortgage company; that, by reason of the mortgages to them and the advances made by them to Thompson and wife, they were the purchasers and owners of the property, having acquired the same without notice, actual or constructive, of the interests of the plaintiff Carter. They set up that they had become owners in fee simple of the lands, and had held continuous, adverse and hostile possession for seven years, and pleaded the statute of limitations in bar of plaintiff’s claim.

The plaintiff testified substantially to the effect that he inherited a one-seventh interest in the lands in controversy from his mother, Melissa E.- Carter, who, at her death, left seven living children. Plaintiff bought the interest of one of his sisters, and therefore he owied a two-sevenths interest in the lands. He sold this two-sevenths interest on March 18, 1918, to Obe S. Thompson, who married witness’ sister, Eula Carter. The consideration was $750, $50 being paid in cash and the balance of $700 evidenced by a promissory note payable December f. 'The note contained the recital that “this note is based upon a land deed of even date. This note is given for a ’2/7 undivided interest in land containing 188 acres, all in sections 19 and 20, township 7, range 20.” The note was signed by Obe S. Thompson. The witness did not execute the deed on the day the note was executed, but the next week he sent Thompson a deed by mail. Witness executed to Thompson a warranty deed, which showed on its face that lien was retained for the balance due on the purchase money. Thompson had never paid the note. On cross-examination, a paper was handed to witness, and he was asked if that was a copy of the deed, and he .answered that it was, except that the deed witness signed did not have the words “for which a vendor’s lien is retained” scratched out. The paper, thus identified, was introduced, and it recited, in part, as follows: ‘ ‘ That D. Carter and wife, Allie M. Carter, for and in consideration of the sum of $50 to us in hand paid by Obe Thompson, the receipt of which is hereby acknowledged, and the further sum of $700, to be paid as follows, for which vendor’s lien is retained: seven hundred dollars, December 1, 1918, at 8 per cent, interest per annum from date, do hereby grant, bargain, sell and convey unto the said Obe Thompson and unto his heirs and assigns forever the following lands, lying in the county of Clark and State of Arkansas, to wit.” Then follow the habendum and warranty clauses, with the relinquishment of dower. There was a line drawn with red ink through the words “for which a vendor’s lien is retained.” The deed was dated March 18, 1918, and acknowledged on April 6, 1918. Witness testified'that the words through which the line was run were not stricken out when the deed was delivered to Thompson through the mail, and at the same time he also delivered to Thompson the deed that had been executed to witness by witness’ sister to her 1/7 interest.

It was shown by several witnesses, and it is undisputed, that the plaintiff was one of seven children of George W. and Melissa E. Carter. Thompson testified that he executed the note above mentioned to the plaintiff Carter for the 2/7 interest he .claimed in the lands. Carter executed a deed to witness for this interest. The deed was misplaced. Carter also delivered to witness a deed from his sister to him for her 1/7 interest. The 2/7 interest conveyed to witness by Carter is covered by a mortgage which the witness gave the mortgage company and the abstract company, and this is the same land mentioned in the note witness executed to Carter for the land. Witness had paid nothing on this note.

J. O. Ehyne testified that he was the attorney for the mortgage company and the abstract company, -and had in his hands a deed sent him by Obe S. Thompson in May or June, 1923. After looking over the deed and making a copy thereof, he mailed it back to Thompson. Witness had not had in his possession the deed from Lola Bridges to the plaintiff, dated March 15, 1913. The first time witness learned of the existence of the deed from Carter and wife to Thompson was when he read a copy of the complaint. The deed referred to was received by witness one day and mailed back to Thompson the next.

The testimony of the president of the mortgage and abstract companies was to the effect that he didn’t know of any outstanding claims of the plaintiff against this property at the time the loans were made to Thompson. If he had, he would not have closed same. He first learned of it on April 27, 1923. Thompson submitted an abstract of title to the companies in order to obtain the loan. The abstract was turned over to the title examiner of the companies. The examiner testified that the common source of title to the lands in controversy was in Melissa E. Carter, who died about the year 1893; that Obe S. Thompson claimed title under deeds executed by John H. Carter and wife, W. A. Garmaney and wife, George Wilson and wife, dated May 20, 1916, and which recited that the grantors were the only heirs at law of Melissa E. Carter, deceased, except Eula E. Thompson, wife of the grantee; that there was a second deed, dated May 29, 1916, from the same grantors to Obe S. Thompson, containing the same recital as to the grantors being the only heirs at law of Melissa E. Carter, deceased. The examiner of the abstract asked that an affidavit be produced, showing when Mrs. Carter died, the names and ages of her children. An affidavit was made by one John L. Bozeman, who stated that he was 67 years of age, and had known the 'Carter family for many years. He knew Melissa E. Carter in her lifetime. She died at the home of her husband, on June 24, 1893. Eula Carter Thompson, Emma Carter Garmaney, Georgia Carter Wilson, John H. Carter, and Will Carter were the only heirs at law of Melissa E. Carter, deceased. Upon the affidavit of Bozeman, after rechecking the title and basing his opinion on the abstract brought down to date, including the affidavit of Bozeman, the examiner approved the title. The abstract showed the mortgage from Thompson and wife to the mortgage company, and the companies thereupon advanced to Thompson the money secured by the mortgages.

On cross-examination the examiner of title stated that the abstract did not show any conveyances from Carter and Lola Bridges to Obe S. Thompson. The first witness heard of Carter’s claim was when Rhyne showed witness a copy of the complaint in this case. Witness did not see the deed from Douglas Carter to Obe Thompson, but saw a copy of what purported to be a copy of that deed in the hands of the companies’ lawyer. He did not recall reading any portion of it. Witness saw it about two or three weeks before testifying, when Rhyne came to witness ’ office to see him about testifying in the case.

Mclver, the president of the mortgage and abstract companies, being recalled, testified that he did not know that Thompson had sent the original deed to his attorney, Rhyne, after the suit was instituted. Witness never at any time or place saw a purported copy of the deed.

Thompson, being recalled by the companies, stated that he had a conversation with McIver, the president of the companies, in April, and told him that there was no vendor’s lien on the land in favor of Carter; that the note he gave said nothing’ about a lien, and that if there was a lien shown, it was a forgery. Witness and his wife executed the mortgages to the companies in 1919, and intended it to be a first and second lien on the property.

"Upon the pleadings and the testimony, the court found that the mortgages given by Thompson and wife to the mortgage and abstract companies, dated April 5, 1919, and upon the entire interest in the lands in controversy, were superior and paramount to the equitable vendor’s lien held against /an undivided 2/7 interest therein by the plaintiff by reason of the balance due him on the purchase money for said interest; that the rights of the plaintiff were superior in equity to all the rights and claims of all the defendants, except the mortgage and abstract companies, and that plaintiff was entitled to a judgment in the sum of $1,005.66, with interest, for the balance due him for an undivided 2/7 interest in the lands in controversy, subject to the rights of the mortgage and abstract companies; and ordered the lands sold to, satisfy the judgment of the plaintiff, and entered a decree in accordance with such findings. The plaintiff appeals from that part of the court’s decree subordinating his lien on his 2/7 interest in the lands in controversy to the liens of the mortgage and abstract companies.

1. The appellant testified unequivocally that the deed of himself and wife to Obe Thompson to the lands in controversy, dated March 18, 1918, at the time the same was delivered to Obe Thompson, had in it the words, “vendor’s lien is retained.” These words were not stricken out at that time, and, if they were stricken out thereafter, it was without any authority from the appellant.

Thompson testified that he did not have the deed that was delivered to him by the appellant; that the deed had been lost or misplaced. He could not find it; he could not say where he last saw it; he did not remember whether he sent it to the Mclver Abstract Company or to its attorney. The attorney for the abstract company testified that he had in his possession a deed from Carter and wife to Thompson, dated March 18, 1918, which conveyed the lands in controversy; that the deed was sent to Mm M May or June, 1923, by Thompson, after the institution of this action, and witness made a copy of it, but witness did not testify that the words, “vendor’s lien is retained,” were erased by having a red line run through them at the time he made a copy of the deed. He did not remember the exact description, nor whether it was signed by 'Carter and wife, or just by Douglas Carter. After looking it over he mailed it back to Thompson the same day or the next after receiving it. Thompson testified that he agreed to give the appellant a plain note, without any lien whatever against the land, and none was to be in the deed; that the note he gave said nothing about a lien, and that, if there was a lien shown in the note, it was a forgery.

The note was introduced, dated March 18, 1918, for $700, with the recital that the note was based upon a land deed of even date and given for two-sevenths of an undivided interest in land containing 188 acres, the land in controversy. Thompson testified that the note bore Ms signature.

It will thus be seen that the testimony of the appellant is consistent, while the testimony of Thompson as to the note is contradictory, and, as to the loss of the original deed executed by appellant to him, is unsatisfactory. The deed itself, if produced, would have been an absolute demonstration of the truth or falsity of appellant’s testimony to the effect that this deed contained the words “vendor’s lien is retained,” when the same was delivered by him to Thompson. "We are convinced that the testimony of the appellant concerning this is true, and that a decided preponderance of the evidence shows that, in the deed of the appellant to Thompson conveying the lands in controversy, there was an express reservation of a vendor’s lien. Such being the fact, the appellees were bound to take notice of appellant’s vendor’s lien, because it was in their chain of title. The appellees claimed title to the lands in controversy through Thompson, and Thompson’s title was derived through the appellant. If Thompson, at the time he executed the mortgages through which the appellees claimed, had no title, then appellees acquired none. Thompson, at the time he executed the mortgages to the appellees, April 5,1919, had acquired no title by adverse possession as against the appellant, for, within less than a year before that, he had recognized appellant’s title by accepting the deed with the vendor’s lien reserved for the balance of the purchase money evidenced by his note. The appellees were not innocent purchasers, because the law is well settled that a vendor’s lien “will be enforced against all persons having either actual or constructive notice of its reservation, and a subsequent purchaser or incumbrancer necessarily takes subject to a lien for the purchase money expressly reserved in the deed conveying the legal title to his grantor or remote grantor, as he is bound to take notice of the provisions and reservations in his immediate grantor’s chain of title; and it is immaterial that the deed reserving the lien is not recorded if the persons against whom the lien is sought to be enforced must claim through such deed.” 27 R. C. L. p. 608, § 361.

In Stephens v. Shannon, 43 Ark. 464-467, we said: “A vendor of land, who has parted with the legal title, has, nevertheless, in equity, a lien for the purchase money as against the vendee and his privies, including subsequent purchasers with notice. The deed of Shannon, which contains the reservation of the lien, was not placed on record. But Stephens was affected with notice of all recitals in the title deeds of his vendor, whether they were of record or not.” See also Stidham v. Matthews, 29 Ark. 650; Stroud v. Pace, 35 Ark. 103; Gaines v. Summers, 50 Ark. 322; Abbott v. Parker, 103 Ark. 429; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 199.

2. Notwithstanding this doctrine, learned counsel for the appellees contends that they are innocent purchasers because, in preceding conveyances to Thompson, certain grantors had stated that they were the sole heirs of the record owner of the land, and the examiner of the abstract of title, before he approved the title upon which the appellees relied, required an affidavit to be furnished showing who were the sole surviving heirs of the record owner. But the undisputed evidence shows that the appellant was an heir of the record owner of the title, and had acquired through inheritance a one-seventh interest and through purchase from his sister another one-seventh interest, and that he was the real owner of a two-sevenths interest of the lands in controversy, at the time he conveyed the same to Obe Thompson and reserved the vendor’s lien, and that he had such lien at the time Thompson executed the deed of trust to the appellees under which they claimed. Therefore the contention of counsel for appellees cannot be sustained, for the reason that the appellant, as the real owner of the land in controversy, could not be deprived thereof by recitals in deeds of other heirs and owners that they were the only heirs, backed up by an ex parte affidavit to that effect. The ex parte affidavit and the recitals in the deeds of other joint owners to the effect that they were the only owners were wholly incompetent to prove that the appellant was not an heir of Georg’e W. and Melissa E. Carter, the original owners of these lands, and that certain others, whose deeds Thompson held, were the only heirs. A vendor, as against those holding joint and equal rights, can convey only such rights as he in fact has, and his vendee takes 'Subject to the right and title of such other persons. Thompson, as the vendor or mortgagor, could convey to the appellees only such title as he had. The appellees, as mortgagees, had no greater rights than vendees. And the vendor, as against third persons having a joint and equal right, can convey only such right and title as he has, and the purchaser takes subject to such rights of other persons.

As is well said in 27 R. C. L., p. 668 § 431, “he who has no title can convey none, and a bad title is not made good by the ignorance of the purchaser of its defects, or his want of knowledge of the better title. ’’ The appellant, 'being the owner of the land in controversy, and having conveyed the same to Thompson, with a reservation of his vendor’s lien, cannot be deprived of the benefits of such lien through the failure of Thompson, by recitals in his mortgage or otherwise, to disclose appellant’s rights. If Thompson had forged deeds from the other heirs of Melissa E. Carter to himself, containing the recitals that they were the .only heirs, and had placed these deeds of record, this would not have affected the rights of appellant as a co-heir of Melissa E. Carter. It would be an anomalous and dangerous doctrine to hold that one who sold his land, expressly reserving a vendor ’s lien, could be deprived of his rights to such lien by any such fraudulent conduct on the part of his vendee or any third party. Titles and rights in lands cannot be vested and divested in any such manner. See 27 R. C. L. p. 674, § 438, 439, and cases cited in note.

It follows that the trial court erred in holding that the mortgages of the appellees were superior and paramount to the right of the appellant under his vendor’s lien. For this error the judgment is reversed, and the cause is remanded with directions to enter a decree declaring the appellant’s rights in the lands in controversy under his vendor’s lien superior to the rights of the appellees, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.

DISSENTING OPINION.

McCulloch, C. J.

The undisputed evidence is' that the ancestor of appellant and of appellee Thompson died about twenty-six years before the execution of the mortgage to appellee, Security Mortgage Company; that Thompson was in exclusive possession of the property, claiming title by inheritance as to an undivided interest, and from the other heirs under recorded deeds, and that the mortgage company made inquiry concerning the numher and identity of the heirs of the ancestor, and received evidence in the form of an affidavit that Thompson and his grantors in the recorded deeds were the only heirs. The chancery court found that the inquiry made by the mortgage company was sufficient, and that the company was an innocent purchaser for value.

All of the authorities mention, as the elements of a bona fide purchase of land, “a valuable consideration, the absence of notice, and the presence of good faith.” This is the definition adopted by this court in Manchester v. Goeswich, 95 Ark. 582. Notice which will defeat the claim of innocent purchase may be either actual or constructive. It must be conceded that in the present case the mortgage company had no actual notice of appellant’s adverse claim, for there is no evidence of any information conveyed to the mortgage company on that subject or any information which would lead to a discovery of appellant’s claim. But the opinion of the majority holds, as I understand it, that the inheritance of the land from a common ancestor who was the holder of the record title constituted constructive notice of the number and identity of the heirs who inherited. That is the point of my disagreement with the majority. I concede that the devolution of the estate from the ancestor who held the record title constituted constructive notice to all subsequent purchasers from the heirs, but the matter of the identity of the heirs is not one of constructive notice, and rests upon evidence aliunde and depends upon actual notice, or notice of such facts as would put a purchaser upon inquiry. The identity of the heirs is a matter in pais, and necessarily depends upon actual knowledge, therefore there is no constructive notice of such identity.

Professor Pomeroy in his work on Equity Jurisprudence (4th ed., vol. 2, § 607) says:

“It may be stated as a general proposition that, in all instances of constructive notice belonging to this class, where it arises from information of some extraneous facts, not of themselves tending to show an actual notice of the conflicting right, but sufficient to put a prudent man upon an inquiry, the constructive notice is not absolute; the legal presumption arising under the circumstances is only prima facie; it may be overcome by evidence, and the resulting notice may thereby be destroyed. Whenever, therefore, a party has merely received information, or has knowledge of such facts sufficient to put him on an inquiry, and this constitutes the sole foundation for inferring a constructive notice, he is allowed to rebut the prima facie presumption thence arising by evidence; and, if he shows by convincing evidence that he did make the inquiry, and did prosecute it with all the care and diligence required of a reasonably prudent man, and that he failed to discover the existence of, or to obtain, knowledge of, any conflicting claim, interest, or right, then the presumption of knowledge which had arisen against him will be completely overcome; the information of facts and circumstances which he had received will not amount to a constructive notice. What will amount to a due inquiry must largely depend upon the circumstances of each case.”

We have here a typical case of the application of the doctrine. The mortgage company was dealing with one who was in actual occupancy of the land in controversy under record title, and there was nothing to constitute notice of an adverse claim. The ancestor had been dead twenty-six years, and, to protect itself, the mortgage company made inquiry as to the number of heirs. There is an element of estoppel involved in the application of the doctrine, and of this Professor Pomeroy (in § 735) says:

“When the original legal owner has done or omitted something by which it was made possible that his property should come into the hands of a bona fide holder by an apparently valid title, it may be just to regard him as estopped from asserting his ownership, and thus to protect the subsequent purchaser. But, when the prior legal owner is wholly innocent, has done and omitted nothing, it certainly transcends., even if it does, not violate, the principles of equity to sustain the claims of a subsequent and even bona fide purchaser.”

Appellant, by yielding possession to his cotenant, Thompson, clothed the latter with the highest evidence of ownership, and he thus made it possible for a subsequent purchaser to be deceived. He could have retained possession as evidence of his ownership, or he could have preserved his security in the form of a mortgage so that it could be put upon record as constructive notice. He did neither, and as he was, to that extent, in the wrong, he should be the sufferer instead of the subsequent purchaser, who was innocent of any notice of his claim.

The majority base their conclusions upon a statement from the textbook that “a bad title is not made good by the ignorance of the purchaser of its defects or his want of knowledge of a better title. ’ ’ This is far from being a correct statement of the law, as is evidenced by many decisions of this court. See Crawford’s Digest, subject, “Vendor and Purchaser,” vol. 4, § 81 et seq. See especially Case v. Caddo River Lumber Co., 126 Ark. 240, where the opinion was written by the justice who now speaks for the majority. A bad title has, in fact, been often made good under certain circumstances by the ignorance of a subsequent purchaser. The books are full of cases where this rule has been recognized, for, if the statement of the law quoted by the majority is correct, then the doctrine of innocent purchaser is completely obliterated.

In Stubbs v. Pyle, 137 Ark. 538, we said: “Pyle had possession and the record title at the time he mortgaged the property to Brun, and at the time he subsequently executed the deed to Durham, and the parties who dealt with him had the right, in the absence of notice to the contrary, to assume that he was the owner. They were not bound to make inquiry concerning the prior possession of Jones under his unrecorded contract. The parties so dealing with Pyle had the rigid to treat this possession as referable to his record title,”

I am unable to perceive why the identity of an heir of a deceased former owner of land should constitute absolute constructive notice any more than any other fact in pais. It is a fact which may or may not rest upon doubtful evidence, and if a purchaser, in accepting a conveyance from one in actual possession of land, makes such inquiry as a reasonably prudent person would make under the circumstances, then he is entitled to protection as an innocent purchaser. The extent of the inquiry, of course, depends upon the facts of a given case. "Where the descent has been recently cast, the fact may be deemed so plain that there is no ground upon which a claim of innocent purchase can be rested; but where, as in this ease, the ancestor has been dead a great length of time, and the heirs are scattered and their identity uncertain, I see no reason why the purchaser should not be protected, as well as from any other secret adverse claim. I do not contend that the real owner of land could “be deprived thereof by recitals in deeds of other heirs and owners that they were the only heirs,” nor that a vendor could be deprived of his right to a lien merely on account of the fact that his deed of conveyance is unrecorded. I do contend, however, that, where one has no. record title and for a long lapse of time permits his property to be held under circumstances which completely obscure his interest, one who buys for a valuable consideration and without lmowledge of his claim should be protected as an innocent purchaser.


author: Wood, J.

text:
    Johnson County v. Patterson.
    Opinion delivered January 19, 1925.
    1. .Counties — employment of attorneys — A county judge is authorized to contract with attorneys to represent the county in resisting a claim based on alleged fraudulent road warrants.
    2. Attorney and client — employment—construction op contract. — A contract employing attorneys to “do and perform any and all matters necessary to defend against and defeat” a certain claim against the county “in the courts or otherwise” held broad enough to cover legal services, whether in defending suit or otherwise, by which the claim was finally defeated.
    3. Attorney and client — right to compensation. — An attorney advising the county judge to cancel certain road warrants and thereafter allowing the matter of claims thereon to rest in order that the payee might not be stirred to take an appeal or bring suit before the statute of limitation expired, held to have given correct advice, and to be entitled to compensation under a contract to perform all matters necessary to defeat such claims.
    Appeal from Johnson Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Sam Rorex, for appellant; J. J. Montgomery, of counsel.
    If the contract involved here can be said to be valid, it simply means that counsel were employed and paid a retainer, future remuneration contingent upon the institution of suits by the company. The testimony however discloses another and entirely different purpose from that expressed in the contract, and discloses that the motive for canceling the warrants of the company was purely political, thus bringing case within the rule announced in the case of Oglesby v. Fort Smith, 119 Ark. 5>67. See page 573 on the question of employment of additional counsel.

      Tessie Mae Billings, for appellees.
    It is said in the case cited by appellant that the county court has power to employ counsel when, in his judgment, the interests of the county demand it. 119 Ark. 567. See also 128 Ark. 498. The employment of Patterson is not denied, nor that he made numerous investigations of the facts and issues involved, advised with. Judge Baskin in relation thereto, nor that, after his employment, he refused employment by the adverse party, and at all times held himself in readiness to represent the county’s interest whenever necessary. The proof is undisputed that Basham advised with refereneo to the cancellation, and that road warrants such as these are “warrants” within the meaning of the statute providing for calling in county warrants. 163 Ark. 455. And that warrants were barred five years after maturity. 54 Ark. 168. The services were rendered, but ‘ ‘ readiness to perform is sometimes equivalent to performance.” 39 Ark. 340.
   Wood, J.

This is an action by the appellees, Basham and Patterson, against the appellant for the sum of $1,015, which claim is bottomed on the following contract:

“As county judge of Johnson County, Arkansas, hereby retain and employ Hugh Basham and G. O. Patterson as attorneys for Johnson County, Arkansas, to represent said county in a claim held against it by the Dixie Culvert Company, and hereby fully authorize, empower and direct my said attorneys to do and perform any and all matters necessary to defend against and defeat said claim. And for their services in that behalf hereby pay untó them the sum of $25 each as a retainer, and further agree that the county of Johnson will also pay said attorneys, in addition to the retainer, a sum equal to one-fourth of the claim held- by said company, for their further services as such attorneys in making defense to said claim in the courts or otherwise. And the said Hugh Basham and G. O. Patterson hereby accept said employment, acknowledge receipt of said sum of $25 retainer, and agree to give to the defense of said claim their best attention. (Signed) C. H. Baskin, county judge of Johnson County, Arkansas.”

The action was instituted by the filing of the claim, duly verified, and exhibiting therewith the above contract. The answer denied that the appellees had rendered any services thereunder, and set up that, prior to August, 1916, the Dixie Culvert Company furnished the appellant certain materials amounting in the aggregate to more than $4,000; that, in August, 1916, road warrants were issued covering the indebtedness, which were subsequently called in by C. H. Baskin, the then county judge, for reissue, which warrants were by him declared fraudulent and canceled on August 11, 1917; that these warrants, at the time of their cancellation, were a valid and subsisting claim against the appellant, but no suit had been instituted against the appellant for the amount thereof; that, approximately eight months after the cancellation of the warrants, the alleged contract of the appellees was signed by the then county judge; that there was no consideration whatever for such contract; that the claim for services growing out of such contract was filed for allowance on April 13, 1923, more than five years after the alleged contract was entered into, and that therefore such claim is barred by the five-year statute of limitation, which appellant pleads.

The testimony of Judge Basham, for the appellees, was to the effect that he was retained by Judge Baskin, county judge of Johnson County, soon after his election in 1916, to recover what Judge Baskin considered a lot of fraudulent scrip that had been issued. He was employed because the prosecuting attorney could not give those matters the attention they needed. Witness’ contract with the county judge was that he was to have one-fourth of the amount recovered, and the resistance of the payment of the warrants that had been issued to the Dixie -Culvert Company was included in his employment. These warrants were identified by the witness, and introduced in evidence. They were drawn on the general road fund, and amounted in the aggregate to the sum of $4,167.62. They were presented to the county court, under an order that had ¡been made by Judge Baskin, calling in all the county scrip for reissue. Each of the warrants had indorsed on its face, “Canceled as fraudulent, August 11, 1917. C. H. Baskin, County Judge.” At the time the warrants were issued, Judge Montgomery was the county judge, and they were issued a short time before his retirement from office, two of them about the close of his term. Witness was employed by Judge Baskin to resist the payment of these and other warrants claimed by him to be fraudulent, because witness had been county judge eight years, and Baskin thought witness was pretty well posted in regard to such -matters, and wanted the services of witness to assist him in resisting payment of what he deemed fraudulent county warrants. Witness ’advised Judge Biaskin that the warrants issued in favor of the Dixie Culvert Company were embraced within his order calling in the county warrants, and that their presentation in obedience to the call gave the county court jurisdiction over the subject-matter, and that the order canceling these warrants was within the court’s jurisdiction. The county judge consulted with witness a number of times during his administration concerning these warrants. The culvert company was talking about bringing suit to 'try to establish and reinstate these warrants that had been declared fraudulent and canceled. Its agent came in a time or two to investigate concerning the reinstatement of these warrants before its right to appeal had expired. Judge Baskin talked to witness concerning it, and witness told him not to bother anything about it until the time for the appeal was up. Witness wanted the time for the appeal by the culvert company to expire, as he feared that a suit might be- brought against the county before the five-year statute of limitation had run. Witness did not consider that the appellees had any claim against the county for the resistance of the payment of these warrants until the expiration of the statute- of limitation. He was holding himself in readiness all the time to defend any suit that might be brought after the five-year statute had run. When the five years expired, witness decided that the fee due him under the contract had been earned, because he claimed these warrants had, at that time, been defeated. Witness was asked if Judge Baskin had entered into a written contract of employment with him, and witness answered that Judge Baskin had informed witness that he had employed Patterson to assist witness in the matter of resisting the claim of the culvert company and signed the written contract on April 21, 1918, supra, which witness identified and introduced in evidence. This contract was executed something like a year and a half after Judge Baskin went into office: It was delivered by the county judge to witness and Patterson and was accepted by them. Witness and Patterson had been ready and willing, at all times since they had been retained by Judge Baskin, to do anything necessary, in witness ’ judgment, to defeat the allowance of the claim, and had advised with the county judge all the time about the matter. No appeal was ever taken from the order of the county court canceling the warrants of the culvert company, and no suit was ever brought. Attorneys on different occasions would come to Clarksville and investigate it, and, upon investigation, decided they didn’t have a case, for some reason, and no- suit was brought. Witness’ contention was .that the claim of the culvert company was barred after five years from the date of the warrants, and absolutely barred at the expiration of one year for appeal from the order of cancellation. Witness didn’t want any suit brought about it until the five years was out, and therefore said very little about it, except in conference with Judge Baskin. Suit was not brought on the contract of employment with witness and Patterson prior to April 13, 1923, because witness didn’t consider their fee was earned until the claim was absolutely barred. Witness’ services were being continuously rendered, but were not fully rendered until that time, and witness didn’t have anything done that might cause the matter to be stirred uo and to cause the culvert company to bring suit until the five-year statute had run. That was witness’ idea of the best way to proceed to defeat the claim. Judge Baskin’s contention in regard to the claim of the culvert company was that the property purchased from the company a short while before he went into office, upon which property its claim ag’ainst the county was founded, was worthless; that he couldn’t use it, and it was never used for the county. He denied that the county owned it, and refused to have anything to do with it.

Witness Patterson testified that he was employed by Judge Baskin to assist Judge Basham in resisting the claim and in preventing its allowance in the court. Judge Baskin informed witness that he had agreed with Judge Basham to pay him one-forth of the amount of the claim for his services in resisting payment of same. Witness told Judge Baskin that, if it was agreeable with Judge Basham for witness to assist him, he would accept employment on the terms mentioned, and split the fee with Judge Basham. After the scrip had been canceled by the county court, and before the time ran out for the appeal, witness received a letter from a firm of attorneys in Little Rock, wanting to retain witness to represent the culvert company and take an appeal, or whatever steps witness thought necessary to protect its rights. Witness replied that he had been employed ¡by the county to resist the allowance of the claims, and therefore could not accept the employment by the culvert company. Witness and Judge Basham and Judge Baskin discussed the matter two or three times before the time for appeal ran out. Witness and Judge Basham held themselves in readiness at all times to represent the county, and liad made it known to everybody having an interest in it that they were representing the county. Witness had advised other attorneys, who had been to Clarksville looking into it, that he was representing the county. Some time in 1918 Judge Baskin had opposition, and it was suggested that it would be better to put their contract in writing, as Judge Baskin might go out of office, and that Judge Basham would have nothing but a verbal contract for their employment. The contract in evidence was then reduced to writing about six months after witness’ employment. Witness was spoken to by a banker in Little Rock, asking if witness would assist in getting tbe claim of tbe culvert company allowed, and agreeing to pay witness a nice fee if he would do so, but witness informed this banker and every one else, that be was employed to resist tbe claim. He and Judge Basham had advised with tbe county judge, and informed bim of their views and what proceedings they would take if suit were brought to establish tbe validity of tbe scrip. Tbe payment of the fee called for by' the contract, in addition to the retainer, was not contingent upon the claim being filed and contested in court; it was contingent upon the claim being disallowed or finally defeated — never being allowed as a claim against the county. Witness was asked if he had a conversation with Judge Montgomery, after he bad filed his claim for a fee, in which witness stated that he never did anything in tbe matter — that be had almost forgotten about it, or words to that effect. Witness replied that be didn’t think be bad any such conversation, but did have a number of conversations with Judge Montgomery, trying to get bim to allow witness’ claim'or to pass on it.

Judge Montgomery testified, for tbe appellant, that he had been county judge of Johnson County up to the latter part of 1916, and again since the first of January, 1921. Tbe first be knew of tbe contract with Judge Basham and Patterson was when they filed their claim. Patterson talked with witness soon after it was filed, and witness told Patterson that he would disallow the claim. Patterson told witness that he didn’t do anything in tbe matter, and bad forgotten about it until Judge Basham called his attention to it a short time before tbe contract was filed. Two carloads of metal culverts were bought from tbe culvert company by witness in tbe spring of 1916. Tbe county bad no money to pay warrants at that time, and tbe company was told it would have to wait. After witness went out of office, tbe culverts purchased from tbe culvert company were hauled out and used by Judge Baskin on the highways. Witness knew of his own personal knowledge that those culverts were used by the county. No claim had ever been filed, but attorneys for the company had been to ‘Clarksville several times, wanting the claim allowed. The canceled warrants were sent to the county clerk in a letter, which is as follows:

“As per our ’phone conversation today, I am inclosing herewith Johnson County warrants as follows (giving numbers and amounts). Kindly file these for reissue, and mail us a receipt. Thanking you in advance for your kind attention to this matter, we are, yours very truly, Dixie Culvert & Metal Company, by W. J. Hearn. ’ ’

There had been no suit filed in any of the courts for any claim- — no action brought to collect them in any of the courts that witness knew of. The first that witness knew that Basham and Patterson were interested in the claims was when they filed their claim against the county for their fee for services. On cross-examination witness was asked: “After this claim was filed, I will ask you if two representatives of the company didn’t come up here and ask you to allow the- claim and discuss the matter with you? A. I think they have been here since this claim was filed. They have been here several times, and written me letters about it. Q. I will ask you if you didn’t tell those men that you wouldn’t allow it, for the reason that the county attorneys here had been hired to resist it? A. No sir. I didn’t tell them that; I told them that you and Judge Basham had a claim filed over here for services in resisting that. Q. Was that one of the reasons why? A. I told them to go over there to the clerk’s office and look it up and see for themselves. That is about all that was said. Q. How did you happen to tell them that attorneys had been employed to defend the matter, to resist the claim? A. I told them that because that claim was pending in the county court. Q. Were they interested in our claim? A. Not that I know of. * * * Q. Did vou explain t-o them what our employment was? A. Nothing further than the contract. I showed them the contract. That it all I knew about it. Q. How did you happen to advise them or what was your purpose in advising them that we had been employed in resisting the claim? A. My purpose was that I didn’t want to pay them for the culverts and then pay lawyers a thousand dollars for resisting it. Instead of having a claim of $4,000, run it up to $5,000.”

No suit was ever brought, and no record of any kind has ever been made except what is on the face of those road warrants. On being recalled, Judge Basham testified that he went to the clerk of the county court and told him, if any claim were filed against the county to re-establish the warrants of the culvert company, to let witness know; that witness intended to defend against it, and, if they were allowed, witness intended to take an appeal. Witness got the' impression that Judge Montgomery would be friendly with the other side, and that was his reason for going- to the clerk and talking with him about it, and not to Judge Montgomery.

Upon substantially the above facts the trial court, sitting as a jury, found in favor of the appellees against the appellant, and rendered a judgment in their favor in the sum of $1,015, from which is this appeal.

The testimony of Judge Basham shows that he was employed by the county judge to resist the payment of certain claims against the county, which the county judge considered fraudulent. Among the outstanding-warrants was the claim of the Dixie Culvert Company, amounting in the aggregate to over $4,000. The county judge desired to resist the payment of this claim, and therefore employed the appellees, under the contract, which is the foundation of this action, to resist the payment of such claim. Judge Basham states that his employment grew out of the fact that the prosecuting attorney could not give these matters the attention needed.. The amount and character of the claim involved were sufficient to show that it was one of more than ordinary importance, and, as the prosecuting attorney, in the performance of his duties, could not give the claim the attention needed, the county judge was authorized to enter into the contract with the appellees to represent the county in the resistance of this claim.

The court was correct in finding, from the testimony of Judge Basham, that the contract was valid. Oglesby v. Fort Smith, 119 Art. 567-572; Spence & Dudley v. Clay County, 122, Ark. 157; Buchanan v. Fanner, 122 Ark. 562; Sumpter v. Buchanan, 128 Ark. 498. We cannot concur with learned counsel for appellant in their statement “that every line of this contract shows conclusively that the sole purpose and intention of the county judge in making such contract was to pay the appellees for any future services rendered in making a defense to the claim in the event suit was brought.” Such a construction of the contract is entirely too narrow, and would defeat its manifest purpose. Taking the contract by “its four corners,” it was contemplated that the appellees, on their part, “should do and perform any and all matters necessary to defend against and defeat said claim” of the Dixie Culvert Company “in the courts or otherwise,” and the county, on its part, in addition to the $25 paid the appellees as a retainer, was to further pay them a sum equal to one-fourth of the claim held by the culvert company. The contract was broad enough to cover whatever services the appellees rendered the county toward defending against and defeating this claim, whether those services were rendered in defending a suit brought to establish the claim, or otherwise, that is, in any other manner by which the claim was finally defeated.

Now, the testimony of Judge Basham shows that he advised the county judge the course to pursue with reference to these warrants, and the result proves that, by following his advice, these claims were finally defeated. Judge Basham, after investigating the matter, advised the county judge, in the first place, that these warrants were embraced in his order calling in county warrants for cancellation and reissue; that this gave the court jurisdiction to make the order, and that, when such warrants were presented, the court then had jurisdiction of the subject-matter, and could make the order canceling the warrants. This advice was correct. Wilkes. v. Bank of Augusta & Trust Co., 163 Ark. 455; Allen, v. Banster, 33 Ark. 740. This advice was most important and exceedingly valuable from the viewpoint of defeating the claim of the culvert company. Likewise, after the order of the county court was made canceling the warrants, and after the warrants were marked canceled, it may also have been the part of wisdom for the county to let the matter rest and be forgotten, as far as possible, in order that the culvert company might not be stirred to action and an appeal taken from the decision of the county court canceling the warrants, and in order, if possible, that no suit be brought before the expiration of the five-year statute of limitation. The advice of Judge Basham along this line was also correct. Crudup v. Ramsey, 54 Ark. 168. The testimony of Judge Basham further shows he considered that his services in the way of directing the course of the county judge were continuous from the time of his employment, and that he did not consider his services ended and the contract performed until the warrants were barred by the five-year statute of limitation. He and Patterson at all times were ready and willing to defend any action that might be brought against the county to establish these claims, and to do all things necessary looking toward the repudiation of such claims, in compliance with the terms of their contract. To this end the testimony of Patterson shows that he refused offers of employment to represent the culvert company in the establishment of the claim, and that he informed all those who made inquiry concerning same and all who manifested an interest in the establishment of such claims that he and Judge Basham had been employed by the county to resist them, and would do so in fulfillment of their contract.

In Jacks & Company v. Thweatt & Quarles, 39 Ark. 340, Thweatt & Quarles, attorneys, had entered into a contract with Jacks & Company whereby they were to advise Jacks & Company in a case which the latter had against Phillips County, and they agreed to pay the attorneys a fee of ten per cent, on all amount collected of the county on account of the county money, whether collected by suit or compromise. In an action by the attorneys against Jacks & Company, one of the defenses set up was. a failure of consideration, in that the attorneys had never rendered any services under such contract. Upon this issue the proof was that the attorneys had at all times held themselves in readiness to perform their contract, but had never been called upon by Jacks & Company for any advice or assistance in the court. The adjustment of the matter between Jacks & Company and the county court was in the main upon the court’s own motion. In that case we said: “In cases of this nature readiness to perform is sometimes equivalent to performance. ’’

That principle would apply here, even if the appellees had atually rendered no service in the performance of their contract, but the testimony warranted the court in finding that they had actually rendered the services contracted for. The appellees earned their fee under the contract, and they must be paid. The trial court ruled correctly in so holding, and its judgment is therefore affirmed.


author: Hart, J.,

text:
    Scales v. Scales.
    Opinion delivered January 19, 1925.
    1. Divorce — indignities to the person. — To warrant a divorce under the statute, indignities to the person must be habitual and systematically pursued to the extent of rendering intolerable the life of the one upon whom they are imposed.
    2. Divorce — uncorroborated testimony of party. — A divorce will not be granted upon the uncorroborated testimony of either party, even if admitted by the other.

      3. Divorce — indignities.—sufficiency of evidence. — Evidence held sufficient to sustain a finding that a wife offered such indignities to her husband’s person as to-warrant a divorce.
    Appeal from Union Chancery Court, Second Division j George M. LeCroy, Chancellor

    affirmed.

      STATEMENT OF FACTS.
    On June 13, 1923, Annie Scales .brought suit in equity against Joe Scales to obtain a divorce from him on the statutory ground that he had offered such indignities to her person as to render her condition in life intolerable.
    On July 17, 1923, Joe Scales filed an answer in which he denied the allegations of ill treatment contained in the complaint of his wife, and also filed a cross-complaint in which he asked for a divorce from her on the same statutory ground. Annie Scales did not introduce any proof in support of her bill.
    Joe Scales was a witness for himself.
    According to his testimony, he lived in Union County, Arkansas. His wife deserted him for the third time just before she filed the complaint in this case. The first time she deserted him she stayed away three months, and returned of her own free will. She begged him to take her back. Subsequent to this time their relations as husband and wife were not at all congenial, because of the fact that she exhibited a tendency to he quarrelsome, headstrong, and unwilling to give way to the most reasonable request that he might make of her. He always treated her as kindly and generously as he knew how, and always provided for her well, according to his financial circumstances, and never gave her any cause for the abuse that she heaped upon him. This treatment continued until the 4th day of June, 1923, at which time a discussion came up, and his wife was unable to control her temper. She swore and cursed at him, calling him a “God damn son of a bitch,” and refused to stay all night at his home. He did not do anything at this time, except to make emphatic statements concerning his rights, and did not' run her away or invite her to leave. Since she left, she has remained away of her own accord. His wife alwavs took occasion, when they were with others, to humiliate and embarrass him, and exhibited a total disregard for his feelings or welfare. He had always been diligent in keeping a decent home for her and at all times had peacefully tried to settle the quarrels that came up.

      Hazel Gray, a girl eleven years old, was a witness for the defendant. According to her testimony, she was at their house on the night of the 4th of June, 1923. We quote from her testimony the following:
    “Q. Will you tell what occurred between Mr. Scales and Mrs. Scales? A. Well, a man had been boarding there, and he paid them six dollars. Q. Did Mr. and Mrs. Scales have a fuss that night? A. I don’t know whether they did or not. It was about a board bill, and he said it was six dollars in all, and she said she was going to get the other three dollars next day. Q. Did she call him names? A. Yes, she called him that word. Q. What was it? A. She called him a son of a bitch. ’ ’
    She further stated that Mrs. Annie Scales left there that night.
    W. M. Ramsey was also a witness for the defendant.
    He lived one and a-quarter miles from Joe Scales. He had known Annie Scales since 1914 and Joe Scales all of his life. According to his testimony, she had left Joe Seales before the last separation took place. In 1914 he went to their house, and Annie Scales said something to her husband that caused the witness to notice her as being unpleasant, and he mentioned it to the husband. She was nagging him the first time he ever saw her. This impressed the witness that she was a woman who was not very congenial to live with. When she would get in company, she would try to throw it into him. She never missed a chance. The witness remembered the occasion when Mrs. Scales left her husband in June, 1923. His cook had bought an organ from Mrs. Scales, and Joe had told him to keep out the money to pay on it. The witness drove up to the Scales home on Sunday morning to carry a mule, and asked Mrs. Scales where Joe was. The latter was not at home, and the witness put up the mule. Mrs. Scales then went to the gate and asked the witness if he would pay her the money for the organ. She said that she was going away, and was not coming back. The witness asked her where she was going, and she said, that she was going to leave Joe. The witness told her that he was sorry about that. She said that they could not get along, and that she was going to leave. The witness advised.her not to go; but she said she was going. She said the trouble came up about one Mr. Jim Tom Barnett, who was boarding there. On Monday afternoon after that, possibly the following week, the witness was in his field, and, just about sundown, he and his boys heard some one roaring and cavorting at Joe Scales’ house. The witness said to the boys, “Old lady Scales is raising sand with Joe.” They stood there and listened several minutes until the noise was hushed. The witness could not hear Joe at all. He was about a quarter and a-half away from them. Mrs. Scales was raising some sand, but he could not tell what she said. He knew that she was talking to Joe Scales, and this was the same evening that she left him that night. She was cursing, but the exact words would be hard for the witness to say. The witness had lived as a neighbor to Joe Scales about thirty years, and had never heard him quarrel when he was in the presence of him and his wife. We quote from his testimony the following:
    “Q. Have you heard her quarrel at him more than one time? A. Yes, I have. Q. Did she use vile language or abusive words? A. Well, you know how a woman can nag at you. She just crossed him on everything — -would not agree with him on anything. ’ ’
    No cross-examination of Joe Scales and his witnesses was made by the attorney for Ajmie Scales. It appears from the certificate of the notary public that the depositions of these witnesses were taken on the 5th day of November, 1923, and that on the 6th day of November, 1923, a decree of divorce was granted Joe -Scales on his cross-complaint.
    The decree recites that Annie Scales refused to introduce testimony to support the allegations of her complaint, and refused to cross-examine the witnesses introduced by her husband.

      The case is here on appeal.

      Oscar Barnett, for appellant.
    A divorce should not be granted upon the complaint of one party to a marriage and the admissions of the other. 240 S. W. 410; 102 Ark. 54; 104 Ark. 381; 122 Ark. 276. It was error to grant appellee a divorce without proof of his citizenship in this State for one year next before the bringing of the action. C. & M. Digest, § 3505; 128 Ark. 548.

      Goodwin £ Goodwin, for appellee.
    The proof in the record is ample to establish the fact of residence in the State for the statutory period and longer. The chancellor’s finding as to the facts in the case will not be disturbed unless there is a preponderance of the evidence against it. 149 S. W. 89.
   Hart, J.,

(after stating the facts). It is the well settled rule of this court that the indignities offered which entitle one to a divorce, under the statute, must be habitual and systematically pursued to an extent that would render intolerable the life of the one upon whom the indignities are imposed. Simpkins v. Simpkins, 136 Ark. 588; Pryor v. Pryor, 151 Ark. 150; and Davis v. Davis, 163 Ark. 263.

It is also well settled by these decisions that divorces will not be granted upon the uncorroborated testimony of either party, even if admitted to be true by the other party. While we have not copied the testimony in full, we have set it out in detail in the language of the witnesses as it appears in the record. Upon a consideration of this testimony, a majority of the court is of the opinion that the chancellor was warranted in rendering a decree for the husband on his cross-complaint.

According to the testimony of the husband, his wife had left him twice before, and he had treated her as well as his condition in life would allow. According to his testimony and that of Hazel Graves, his wife called him a son of a bitch on the night she left him. This occurred on Monday night, the 4th of June, 1923.

According to the testimony of William Ramsey, he was at their house on the Sunday before, and Mrs. Scales told him then that she was going’ to leave her husband. She said the trouble came up about one Mr. Jim Tom Barnett, who was boarding with them.

It is also inferable from the testimony of Hazel Graves that they quarreled about a man who had been boarding there, and who had p'aid them six dollars. According to the testimony of Ramsey, Mrs. Scales was continually nagging her husband, and when they would get in company ‘‘ she would try to throw it into him. ’’ He stated further that she crossed him in everything and would not agree with him in anything.

The majority of the court is of the opinion that this testimony, when taken in connection with her cursing him, shows that the nagging and cursing her husband was of the same character as her conduct on the night she left. They think that the language" used on that night was indicative of the language she used towards her husband when Ramsey said that she would “nag him” and “throw it into him.” Therefore they think that the chancellor was justified in granting a decree of divorce to the husband on the statutory ground alleged in his cross-complaint.

On the other hand, Judge Wooo and the writer think that this corroborative testimony was too indefinite, and that the witness should have been required to state what was meant by “nagging” and “throwing it into her husband.” "We think they meant petty fault-finding. These expressions and the further expression that “she crossed him in everything and would not agree with him in anything,” amounted to no more than an expression of opinion on the part of the witness. Hence we think that the chancellor erred in granting the divorce.

It results, however, from the views of the majority of the court that the decision of the chancellor was correct, and it will therefore be affirmed.


author: Smith, J.

text:
    Mason v. Mason.
    Opinion delivered January 19, 1925.
    1. Boundaries — location—sufficiency of evidence. — The question at issue being the location of the dividing line between the lands of plaintiff and defendant, evidence held to sustain a verdict in favor of plaintiff’s contention.
    2. Evidence — -hearsay.—In ejectment, testimony as to a survey previously made by the county surveyor was properly excluded as hearsay where neither the testimony of such surveyor nor that of any other person who was present at the survey was offered, and no offer was made to introduce any record of the alleged survey.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    affirmed.

      Henry Stevens, for appellant.
    If the line is where the appellant claims it is, then appellee has no title to the strip of land, and the burden was on the plaintiff to prove that he was entitled to the possession of the land. 76 Ark. 529; 76 Ark. 615; 77 Ark. 244; 87 Ark. 185. It devolved upon plaintiff to definitely locate his' property. 5 Ene. Ev., p. 27; 5 S. W. 638.

      McKay & Smith, for appellee.
   Smith, J.

This is a suit in ejectment brought by appellee, who owns the northeast quarter of section 31, township 19 south, range 22 west, in Columbia County, Arkansas, against appellants, who own the southeast quarter of that section, it being alleged in the complaint that appellants, the defendants below, are in the unlawful possession of a portion of the northeast quarter, which the complaint described by metes and bounds. The correct location of the true line between these two quarter sections of lands is determinative of the question at issue. There was a verdict for the plaintiff, the effect of which was to sustain his contention as to the location of this line. A judgment was pronounced upon this verdict, which awarded to the plaintiff the possession of the land in litigation, and the defendants seek by this appeal to reverse that judgment. As grounds for reversal, it is insisted, (1), that the testimony does not sustain the verdict, and (2), that error was committed in excluding testimony offered on behalf of defendants.

This dividing line was in dispute between the parties, and the defendants employed J. L. Pope, a surveyor, to run the line. Pope performed this service, and his survey established the line as contended for by plaintiff. Pope made a plat of his survey, which he offered in evidence in explanation of his testimony, and with this plat in hand he testified as follows: “This is the line right here, a straight line, the land line. Here is the northeast quarter, and here is the southeast quarter. The southeast quarter is owned by L. D. Mason, and the northeast quarter by J. M. Mason, and this is the line between them, and Mr. Luther Mason’s fence (one of the defendants) is fifty-eight feet north of this corner, and runs at an angle for one hundred and twenty feet, and right here it crosses this quarter a quarter of a mile to here, and then runs due north, and thence northwest to the public road, and then it turns back here and back to this line.”

Witness checked the description on the plat of the land in litigation, and showed that it was correctly described by metes and bounds in the complaint, and was, in fact, north of the dividing line between the two quarter sections, and therefore a part of the land owned by the plaintiff.

The witness testified that the survey was made after locating the government corners. Another surveyor, named Puska, verified this survey, except that Puska’s survey gave plaintiff twelve feet more land than Pope’s survey did.,

Both these surveyors admitted that they had made former surveys to locate this dividing line, and that the former surveys sustained defendant’s contention as to the location of the dividing line, but they testified that, in these former surveys, they had accepted as a corner a point located by defendants as 'such, and had proceeded upon the assumption that the point shown them as the corner was the true corner, whereas the last surveys had. been made after they had located the true corner at another point.

This testimony is sufficient to support the verdict.

L. D. Mason, one of the defendants, offered to testify that he knew of another survey, made in 1882 by Andrew B. Johnson, who was the county surveyor at that time, and that the trees showing the government corner were then in existence, and that Johnson located the line between the two quarter sections north of the tract of land in controversy. The court excluded this testimony, and that action is assigned as error.

Appellants cite authorities to the effect that the surveyors who made the survey, the chain carrier who assisted him, and other non-experts, may testify as to the location of the line of the survey upon the ground, the placing or marking of the original monuments, and the order in which the lines were run. But the rejected testimony does not come within the rule contended for. Johnson was not offered as a witness, nor was the testimony of any other witness offered who was shown to have been present at the survey, nor was there any offer to introduce any record of a survey which Johnson had made as county surveyor. Section 1897, C. & M. Digest.

The testimony offered was hearsay, pure and simple, and no error was committed in excluding it.

As no error appears, the judgment is affirmed.