text:
    Less v. Less.
    Opinion delivered February 14, 1921.
    1. Dower — right to rents before assignment. — Under Crawford & Moses’ Dig., § 89, a widow was entitled to rents on her husband’s real estate in proportion to her interest therein from her husband’s death until dower has been assigned to her.
    2. Estoppel — to claim forfeiture of rent. — Administrators of a husband’s estate, having filed their report of rents collected from and disbursements on land in which the widow was entitled to dower, were estopped to claim that the wife had forfeited her right to such rents by failure to pray for her share of the rents in her bill for assignment of dower.
    3. Executors and administrators — deductions from dower.— Where a widow accepted a building in its completed .condition as part of her dower, the administrators were not entitled to deduct the expenses of completing the building from the rents accruing to her.

      4. Executors and administrators — disbursements on dower property. — The court, in passing upon disbursements of administrators, made on property assigned to the widow as dower, should either allow or disallow items claimed, instead of refusing to pass upon them.
    5. Appeal and error — harmless error. — Refusal of the court to pass upon items of credit claimed in an administrators’ account was harmless where the administrators were not entitled thereto.
    6. Executors and administrators — allowance for payments of alimony and mortgage liens. — Where the property out of which dower was assigned was subject to mortgage and alimony liens, the administrators, having paid such alimony and interest on the mortgage, were entitled to credit therefor.
    7. Dower — assignment out of mortgaged property. — Assignment of dower may be made out of mortgaged property, in which case the widow takes the dower subject to the payment of a just proportion of the indebtedness.
    8. Executors and administrators — reimbursement of expenditures on dower property. — Administrators were entitled to be reimbursed for expenditures for taxes, insurance and necessary improvements upon property assigned as dower prior to its actual assignment, where such amounts were expended pending an appeal from the decree assigning dower.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    reversal in one case, affirmance in the other.

      W. A. Cvmmmgham and Beloate & Anderson, for appellant.
    1. The record shows that there was left by Isaac Less landed interest in the sum of $136,078.40, and it was error to hold that the rents accruing from the time Isaac Less died down to December 6, belonged to the estate and not to Ida Less. The records show that there had only been accounted for to the widow the rents on the dower lands collected from date of death down to and including the time the action was in the Supreme Court. 131 Ark. 237. The widow is entitled to one-third of the rents collected between the time of the death of the husband and the assignment of dower. 40 Ark. 393; 60 Id. 477.
    As the rents on one-third of the estate were accounted for by defendants, Jake Less and Morris Less, adminis-

      trators, the widow was entitled to same without deductions. She should have been allowed her one-third of these rents under the law as the widow of Isaac Less, deceased. New causes of action can not be filed after the passing on same by the superior courts. Items paid after the decree setting aside dower fall within the rule. 59 Ark. 147, and are not chargeable.
    2. The court erred in refusing to allow appellant rents from the death of I. Less until the decree assigning dower. The decree should be modified and decree entered here for the additional amount, $1,531.62, with interest from December 12,1917, with costs, in addition to the $659.92 found due, and the decree on the second branch of the case reversed and dismissed or the second part of the decree be modified as that part of the second decree was not within any issue raised.

      A. S. Irby and Ponder & Gibson, for appellees.
    1. Was Ida Less, the widow, entitled to rents off the lands afterward assigned to her from the date of the death of I. Less until the date of the assignment of dower? This question was not raised nor settled in 130 Ark. 232. The case in 40 Ark. 393, settles this. See, also, 60 Ark. 461; Kirby’s Digest, § 77. Appellant, having acquiesced in the assignment of dower and having made no claim for rent, waived her rights as to rents and can not recover. 8 Gill (Md.) 207.
    2. If the widow is entitled to dower in the rents collected before assignment, this would be subject to repairs, taxes and insurance, etc., and should be deducted. 132 Ark. 69. The entire record shows acquiescence by the widow. 132 Ark. 69; 127 Id. 98.
    3. The second subdivision of this case only 'embraced and presented the question of payments by appellant of the sum already found to be due by the court. The decree of the chancellor was for $985.82, and it is sustained by the evidence. Appellees are entitled to credit for repairs, taxes and insurance, and these should be ascertained by. reference to the clerk and the amount found should be allowed.
   Humphreys, J.

The correctness of two decrees is challenged by appellant in this ease. The first was rendered by the Lawrence Chancery Court in the case of Ida Less v. Miriam Less after an affirmance of said cause by this court. The opinion affirming this cause will be found in 131. Ark. 232. The second was rendered by the same court in the case of Miriam Less et al. v. Ida Less, filed in the latter part of the year 1920, for amounts paid by the plaintiff in the cause, the appellees herein, to liquidate mortgage and alimony liéns adjudged against the dower properties in the original case of Ida Less v. Miriam Less et al., and which accrued after the affirmance of the case in the Supreme Court on November 26, 1917.

After affirmance of the case of Ida Less v. Miriam Less et al., Jake and Morris Less, two of the appellees, as administrators of the estate of I. Less, deceased, filed a statement in the cause, of all rents collected by them on the lands assigned to appellant as dower, from the 30th day of January, 1917, the date I. Less died, until December 6,1917, the date appellant acquired possession of her dower properties under the decree of assignment, of date May 21, 1917; also a statement of disbursements made by them upon said properties during the same period.

Upon the issues joined by exceptions to the statement of disbursements, the answer to said exceptions and the evidence adduced, responsive to the issues, the court decreed that appellant was not entitled to rents collected by the administrators from the date of the death of I. Less until the date of the decree assigning dower on May 21, 1917. This is the first decree from which appellant appealed. The court also decreed that appellees were entitled to only two items contained in the account of-disbursements. These items were $400 paid as interest to the Commonwealth Farm Loan Company and $373.22 paid to Mrs. Gussie Less on account of alimony which had been charged against the dower property. In the decree the court found that it was unnecessary to determine whether other disbursements were chargeable against the dower interest in order to determine the cause. The account of disbursements contained other items of interest paid by appellees to the Commonwealth Farm Loan Company as interest on the mortgage against the property; additional items paid to Gussie Less on account of the alimony lien against said property; items of cost entering into the completion of the garage which was in the course of construction at the time I. Less died, on lot 12, block 3, assigned to appellant as a part of her dower property; items paid out for taxes, insurance and repairs on the dower properties after the decree of assignment of dower on May 21, 1917, and before the delivery of said dower properties to appellant on December 6, 1917, a short time after the decree for assignment of dower was affirmed in this court. As to this part of the first decree, appellees prosecuted and perfected a cross-appeal.

Appellant insists that the court erred in refusing to allow her rents from the date of the death of I. Less until the decree assigning dower, of date May 21, 1917. The amount of rents collected during that period was $1,531.62. There can be no question that a widow is entitled to rents on the real estate of the deceased in proportion to her interest therein before the assignment of dower. Section i89 of Crawford & Moses’ Digest provides that, “Until the widow’s dower be apportioned, the court shall order such sums to be paid to her out of the rents of the real estate as shall be in proportion to her interest therein.” Appellees insist, however, that appellant forfeited her rights to such rents by not praying for them in the bill filed by her for the assignment of dower. We pretermit a determination of that question, for appellees are not in a position to raise it. After the affirmance of the decree assigning dower, appellees filed their report of the rents collected from, and the disbursements made on, the properties, and, in doing so, presented the issue of rents and disbursements themselves. They are estopped to claim a waiver on the part of appellant. The court erred in disallowing appellant’s claim for rents on the dower properties from the date of the death of I. Less to the date of the decree assigning dower.

. Appellees, upon their cross-appeal, insist that the court erred in refusing to pass upon the expenditures made by them in relation to the dower properties from the date of the death of I. Less until December 6, 1917, the date the dower properties were delivered to appellant. The undisputed evidence showed that all the items entering into the completion of the garage, which was in the course of construction at the time I. Less died, except the amounts expended on the ceiling, had been made at the time the garage property was assigned .to appellant as a part of her dower; that the widow accepted it at its appraised value in its completed condition as a part of her dower. This being true, appellees received, payment for the improvements they made on this property in completing the garage in the value of property received by them at the time the dower was assigned. If these items had been allowed by the court, appellees would have received double pay for the improvements. While the court should have ruled one way or the other on the items,' the failure to allow them is not in any sense prejudicial to the rights of appellees, and they can not complain. The court, however, did err in failing to pass upon and allow all items paid by appellees' on account of interest due upon.the mortgage of the Commonwealth Farm Loan Company and for alimony items due Mrs. Gfussie Less, from the date of the death of I. Less, because these were burdens in the nature of liens against the entire real estate of which I. Less died seized and possessed, and out of which dower assignments were made. The rule has been established by this court that assignments of dower may be made in mortgaged property, and that the widow takes dower subject to the payment of a just proportion of the indebtedness. Hewitt v. Cox, 55 Ark. 225; Crosser v. Crosser, 121 Ark. 64; Less v. Less, 131 Ark. 232; Mayo v. Ark. Valley Trust Co., 132 Ark. 69. The court also erred in failing to pass upon and allow the items for taxes, insurance and necessary improvements and repairs upon the dower properties after the decree of May 21 assigning dower and the date the dower properties were actually delivered to appellant. Appellant’s insistence is that appellees had no right to expend any amount for any purpose upon the dower properties after the decree of assignment. An appeal was prosecuted from the decree of the assignment of dower, and her right to the possession of the lands assigned as dower was riot decided by the Supreme Court until November 26, 1917. She did not receive possession of the dower properties until December 6,1917. It was during the interim that these expenditures were made on the dower properties', and at the time appellees were collecting rents thereon. ' We think a proper interpretation of section 89 of Crawford & Moses’ Digest is that the widow shall receive her proportionate part of the net rents after the payment of all necessary expenses, such as repairs, taxes, etc., during the time the administrator or heirs continue in possession of the lands and are held to account for the rents.

For the error indicated, the decree will be reversed and the cause remanded with directions to the court to either state, or appoint and have a master state, an account between the parties in accordance with this opinion.

Appellant assails the decree rendered in the last action filed and treated as a part of this suit, upon the ground that the following part of the decree was not within the issues and proof: “It is further ordered and decreed by the court that Ida Less make all future payments on amount to G-ussie Less as alimony, her part, $46.66 per month, to the clerk of this court, each month and all interest items which may be due the Commonwealth Farm Loan Company, or any other party.” The question whether or not appellant, Ida Less, should take her dower interest in the lands of I. Less, deceased, subject to these burdens became the sole issue in the original suit after it became an adversary one. The evidence shows that the lien in favor of the Commonwealth Farm Loan Company was a mortgage lien covering the entire property, out .of which dower was assigned. Likewise, the lien in favor of Grussie Less for alimony was a lien upon certain tracts of land belonging to I. Less at the time of his death, out of which dower was assigned. Appellees could not pay two-thirds of either lien and clear the property which they receive in the division. It was necessary to pay the whole lien in order to clear their part of the property. Appellant was assigned dower in the lands subject to the payment of one-third of the Gf-ussie Less lien for alimony and one-third of the Commonwealth Farm Loan Company’s mortgage lien. They were continuing liens until liquidated, and we think the order within the reasonable inferences deducible from the allegations of the original bill. In no event could the rendition of such a decree be prejudicial to appellant unless the payments required to be made to the clerk are misappropriated or unless appellant is required to pay the amounts directly to the owners of the liens. Upon the happening of either event, appellant could apply for a modification of the order.

The decree of the court rendered upon the second branch of this case is therefore affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Newman v. Neel.
    Opinion delivered February 14, 1921.
    1. Creditors’ suit — remedy at law. — A judgment-creditor had a complete and adequate remedy at law by execution to enforce his judgment at law against the judgment-debtor’s equity in lands, and a creditors’ bill will not lie for that purpose,
    2. • Creditors’ suit — extension op judgment lien. — A creditors’ bill will not lie to extend a judgment-creditor’s lien; the remedy of scire facias being provided therefor.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Miller (& Ymgling and John D. D&Bois, for appeUant.
    1. The chancery court did not have jurisdiction of the suit instituted May 5, 1919, against J. W. and Ellen Matthews, Challdey and J. Gr. Howard, which was in the nature of a creditor’s bill, for the reason that Neel had not exhausted his remedy at law, and J. W. Matthews was insolvent, and the judgment might .have been collected out of his personal property or other property than the land in question. It is well settled equity will not assume jurisdiction where an adequate remedy at law exists, 27 Ark. 157. Here the judgment-creditor sought to subject the land of his debtor to a sale under a decree of chancery without giving his debtor the statutory right to select and point out the property upon which an execution might be levied. This right was given to J. W. Matthews, and he- had the right to expect that Neel would pursue the remedy at law provided for collection of judgm'ents at law. Neel was nof attempting to reach any equitable assets of J. W. Matthews in this suit, but simply trying to subject the land to the payment of the debt, without showing that J. W. Matthews was insolvent. This was requisite and ought to have been shown and would have been shown if it had been a fact. The agreed statement of facts shows that Neel brought this suit without any attempt to collect his common-law judgment. A creditor’s bill can not be sustained until the remedies at law are exhausted. 5 Pom. Eq. Jur. (2 2ed.), § 2309; 99 Cal. 271; 37 Am. S't. R. 50. It is admitted that at the time Neel brought suit in chancery and while it was pending Matthews and his wife were actual residents of White County, Arkansas, and their home was upon said land. No summons was ever issued or served, and neither Matthews nor his wif e ever entered their appearance. Therefore no suit was pending, and they are not bound by the decree. The decree against Matthews and his wife was an absolute nullity and should have been restrained.

      2. No lien existed at the time appellant purchased the land. The lien had expired as three years had passed ■and the lien was not revived. 101 Ark. 408 ; 24 R. C. L. 665, 685. See, also, 15 R. C. L., p. 904, § 382; 130 Ind. 33; 21 Utah 126; 60 Pac. 305; 30 Am. St. Rep, 194; 81 Id. 670.
    3. Appellant was an innocent purchaser. The proceeding adopted here is proper. 101 Ark. 404.

      Culbert L. Pearce, for appellees.
    1. The chancery court had jurisdiction of the suit which was a creditors’ bill and a lien existed. 101 Ark. 404; 53 Id. 568; 13 Id. 259; 24 R. C. L., pp. 666-685, §§ 1-2-12-25. Having jurisdiction for one purpose, it was proper to assume jurisdiction for all purposes. 1 Pom., Eq. Jur., pp. 218-258; 10 R. C. L. 265-288. See, also, 5 Pom., Eq. Jur., pp, 5087-5140, §§ 871-2-6-9-882, 890-1-5; 8 R. C. L.-, pp. 2-35; §§ 4-5,1123-4-5-9 and 38; 32 Ann. Cas. 942, 945, 953.
    2. The money was tendered in court and is now on deposit. 28 Am. & Eng. Enc. Law (2 ed.), p. 15; 26 R. C. L. 648-650.
    Upon the question of appearance, see 2 Ark. 26; 2 R. C. L., pp. 322, 335, §§ 7 and 16; 2 A. & E. Enc. PI. & Pr., pp. 632, 644-6; 16 L. R. A (N. S.) 177; 15 Mont. 503.
    3. Newman was not an innocent purchaser, as he purchased with full knowledge.
    4. On the question of lis pendens, see 57 Ark. 230; 75 Id. 230; 118 Id. 139; 98 Id. 105; 38 L. R. A. 772.
    On question of bona fide purchaser, see 1 Words & Phrases, p. i825; lb. 470.
   Humphreys, J.

This suit was instituted in the White Chancery Court by appellant against appellees to enjoin a sale of lands by the commissioner in chancery in a suit instituted on May 5, 1919, by R. P. Neel against J. W. Matthews, Ellen Matthews, H. C. Chalkley and J. G. Howard, which was in the nature of a creditor’s bill, for the purpose of subjecting the lands of J. W. Matthews to the payment of a common-law judgment which had been obtained by R. P. Neel against J. W. Matthews in the White Circuit Court on August 2, 1916. Appellant alleged ownership of the lands by purchase from A. P. Matthews, who had obtained them from J. W. Matthews, and further alleged, as ground for .the injunction, that it. P. Neel had not exhausted his remedy at law to collect his judgment, and, for that reason, a court of equity had no jurisdiction of the creditors’ bill instituted by him.

The allegations of the bill were controverted by appellees, and the cause was submitted to the court upon the pleadings and an agreed statement of facts which resulted in a decree dismissing appellant’s bill for injunction. From the decree of dismissal an appeal has been duly prosecuted to this court.

The agreed statement of facts, upon which the cause was submitted to the court, is as follows:

“That on the 25th of February, 1916, J. W. Matthews and Ellen Matthews, his wife, were the owners of 224 acres of land in White County, Arkansas, on which their homestead was located; that on said date they executed a mortgage to Minnie Biggs, conveying said lands to secure a note for fifteen hundred dollars, which mortgage was properly recorded.
“That on the second day of August, 1916, B. P. Neel obtained a judgment in the White Circuit Court against the said J. W. Matthews for the sum of $248.70' -and ten per cent, interest from May 15, 1916, and for costs, amounting to $6.80.
‘ ‘ That on the 8th day of August, 1916, the said J. W. Matthews and Ellen Matthews, his wife, executed a second mortgage to Minnie Biggs, conveying the said lands to secure notes amounting to six hundred dollars, which deed of trust was also properly recorded.
“That thereafter, default having been made in the payment of said notes, as aforesaid, judgment was obtained in the White Chancery Court, and a lien was declared on the said land, and, in order to pay said judgment and prevent foreclosure of said lien, the said J. W. Matthews and Ellen Matthews, his wife, on November 22, 1918, borrowed from H. G. Chalkley, through his agent, J. P. Howard, four thousand dollars and executed a mortgage to secure same, conveying the 224 acres which they then owned and 200 acres which was then being purchased by them from D. Gr. Pence.
“That the said four thousand dollars was used in satisfying the judgment of Minnie Biggs and part of the purchase money due Pence on the 200 acres as aforesaid; that, after the said four thousand dollars was so used, the said J. W. Matthews and Ellen Matthews, his wife, on the 15th day of March, 1919, executed a warranty deed to J. Gr. Howard, conveying to him all of the lands owned by them, consisting of 424 acres, which deed was intended as an equitable mortgage to secure the said J. Gr. Howard for the remainder of the purchase money due Pence and such other indebtedness as the said J. G. Howard might pay, or be compelled to pay, for the said J. W. Matthews, not to exceed, however, the sum of twelve hundred dollars, and said deed was also properly, recorded.
“That, at the time of the execution of the aforesaid warranty deed, the said J. G. Howard and J. W. Matthews entered' into the following written contract:
“ ‘This agreement made and entered into by J. W. Matthews of Romance, Arkansas, and J. G. Howard of Searcy, Arkansas, whereby said J. W. Matthews has on this 15th day of March, 1919, deeded to said J. G. Howard 424 acres of land in White County, Arkansas, fully described in said deed of said date; the consideration of same being $1,200 and acceptance of $4,000 mortgage made payable to H. G. Chalkley. •
“ ‘It is understood that said J. W. Matthews shall have the right to redeem said land upon the payment of all expenses, commission on loan of $4,000, interest, costs and judgments and taxes on said land that are at present date a lien on said property with 10 per cent, interest on all amounts paid by said J. G. Howard.
“ ‘The redemption of said property shall be made on or before December 1, 1919, and if not redeemed by that date the said deed to remain in full force and effect. In case said land is redeemed before December 1, 1919, said J. Gr. Howard agrees to quitclaim all Ms interest in said property to any person designated by said J. W. Matthews, and to deed the land in lots or parcels as may be requested by said Matthews.
“ ‘ J. W. Matthews.
“ ‘ J. G. Howard.’ ”

And at the time said deed was executed, the said J. W. Matthews and A. P. Matthews, his son, entered into a written contract, on the opposite side of the paper on which the contract was written, as follows:

“As a part of this contract it is understood that A. P. Matthews has an interest in the following lands described in the within-named contract on opposite side of this sheet, viz.: In the Pence 200 acres, and when said land is released, as set' out in the within contract, then the said J. G. Howard is instructed, and it is agreed that ho shall deed to said A. P. Matthews the following described lands, viz.: ■ The southeast quarter of the southwest quarter of section 4, and the north half of the south half of the southeast quarter and the north half of the south half of the south half of the southeast quarter of said section 4, all in township 7 north, range 10 west, as the owner' of said 100 acres, and the remainder of said Pence land to A. P. Matthews, be conveyed by said J. G. Howard to Dorris Matthews, the following land: The east half of northeast quarter, section 4, 84.55 acres, and also the south half of the southwest quarter of the southwest quarter of section 34, all in township 7 north, range 10 west, White County, Arkansas.
“This the 15th day of March, 1919.
“J. W. Matthews.”
“That the said B. P. Neel had no knowledge of the warranty deed from Matthews to Howard being given as an equitable mortgage, neither did he have knowledge of the aforesaid written contract, until pleaded by Howard on May 19, 1919, in a suit filed by said Neel as hereinafter set forth.
“That prior to the first day of December, 1919, A. P. Matthews redeemed the said land from the said J. G. Howard and received a quitclaim deed from Howard to J. W. Matthews; and on the 15th day of December, 1919, the said J. W. Matthews and Ellen Matthews, his wife, executed a warranty deed to the said A. P. Matthews, conveying all of their lands consisting of 424 acres and which included their homestead.
“That on the same day the said A. P. Matthews conveyed said land to the plaintiff, D. W. Newman, the consideration being the assumption of the four thousand-dollar mortgage through Chalkley, and the exchange of other lands then owned by Newman, and the said Newman went into possession of said land immediately under his deed made by Matthews.
“That subsequent to the execution of the warranty deed from J. W. Matthews and wife to J. G. Howard, the said J. W. Matthews and A. P. Matthews continued in possession of said land under an agreement to pay rent in the event that they failed to redeem from the warranty deed or equitable mortgage.
“That on the 5th day of May, 1919, the said R. P. Neel filed a complaint in the White Chancery Court against J. W. Matthews and Ellen Matthews, his wife, H. G. Chalkley, J. G. Howard and others, which suit was in the nature of a creditor’s bill, for the purpose of subjecting all of Matthews’ 424 acres of land to- a lien to secure his common-law judgment hereinbefore mentioned, and prayed that his rights be investigated, determined and declared, and, finally, that he have a lien against said lands to secure the payment of said judgment, and, if said judgment be not paid within a reasonable time, that said lands be sold to satisfy same.
“That, at the time of the filing of the complaint by the said R. P. Neel, the said Ellen Matthews, the wife of J. W. Matthews, was an actual resident of White County, Arkansas, and was residing upon the lands involved herein; and that her husband, J. W. Matthews, was at the time temporarily absent from the State as a fugitive from justice, but the said J. W. Matthews was returned to White County before the submission of said cause and no summons was ever issued on the complaint for either the said Ellen Matthews or J. W. Matthews; and service of process was attempted to be had upon them by the publication of a warning order, issued upon the following affidavit:
“Cul L. Pearce upon oath says: That he is a licensed and practicing attorney at law and solicitor in chancery, and that he is authorized to file and prosecute this action; that the statements of fact in the foregoing complaint are true and correct, according to the best of his knowledge and belief; and that he has made diligent inquiry, and that it is his information and belief that the said Minnie Biggs, J. W. Matthews, Ellen Matthews and H. G. Chalkley are nonresidents of the State of Arkansas, and that personal service can not be had upon them.
‘ ‘ That at the time of the making of said affidavit by the said Cul L. Pearce, the plaintiff in said suit, R. P. Neel, was not absent from the county and was not mentally incapable of making the same or was not physically unable to attend before the officer and make said affidavit.
‘ ‘ That the said J. W. Matthews and Ellen Matthews in no wise entered their appearance in said cause.
“That the said cause proceeded to a hearing in White Chancery Court upon the issues made by the complaint of the plaintiff, R. P. Neel, the answers of J. G. Howard and H. G. Chalkley and the testimony of witnesses, and the court on December 6, 1919, rendered a decree in which, among other things, it is said:
“ ‘It is therefore considered, ordered, adjudged and decreed that plaintiff, R. P. Neel, has a lien upon said lands (meaning the 200 acres purchased from D. G. Pence as heretofore set out), by virtue of the common-law judgment hereinbefore set out; that said lien is prior and paramount to any and all rights, interests, equity and claim of any of the defendants, their heirs or assigns, or any one claiming or holding under them, except as to the amount of purchase money advanced by the defendants, Chalkley and Howard, with the interest thereon, and that he is now entitled to have said land sold if necessary for the purpose of satisfying said judgment now amounting to $358.75, with interest from this date at the rate of ten per cent, per annum.’
“That the above decree was not entered of record by the White Chancery Court until the 6th day of January, 1920, on account of the details of the same not being agreed upon by the attorneys on the 8th day of December, 1919, at which time it was formally rendered.
“That at the time of the execution,of the warranty deed by J. W. Matthews and wife to J. Gr. Howard, in lieu of a mortgage, as aforesaid, the said J. Gr. Howard held back the sum of $248.70 with which to satisfy the judgment rendered in favor of R. P. Neel against J. W. Matthews, as aforesaid, which amount he later tendered into court with which to satisfy said judgment, which said tender was refused on the ground that it was only for the face of the judgment, exclusive of interest and costs.
“That on December 1, 1919, when the said J. G-. Howard reconveyed said lands to the said J. W. Matthews by quitclaim deed, he required an agreement from the said A. P. Matthews to indemnify him, the said Howard, against the rendition of a personal judgment against him in the suit that was then pending, filed by the said Neel as aforesaid.
“That at the time D. W. Newman purchased said lands on December 15, 1919, he was advised that the suit of Neel as aforesaid was pending, and knew that the said J. Gr. Howard had required A. P. Matthews to deposit the sum of $300 in the Bank of Searcy to indemnify him (Howard) against a personal judgment as aforesaid, and he purchased said lands, relying upon said indemnity as a protection to him, and the advice of his counsel that no lien at that time existed against said lands.
“That the said R. P. Neel took no steps to renew his judgment-lien upon his common-law judgment, obtained August 2, 1916, as aforesaid, by writ of scire facias or other method pointed out by the statutes for the renewal of judgment-liens, and filed no lis pendens at the time, or subsequent thereto, of the filing of his suit in the chancery court to subject said lands to the payment of his judgment.”

Appellant insists that, under the agreed statement of facts, R. P. Neel had a complete and adequate remedy at law, by execution, to enforce his judgment against the equity of J. W. Matthews in said lands, during the continuance of the lien of said judgment, and ample remedy by scire facias to renew the lien of said judgment from time to time, and that it was unnecessary, in order to reach the equity of J. W. Matthews in said land, to resort to a court of equity to declare the priority of liens. According to the statement of facts, R. P. Neel obtained a judgment for $248.70 against J. W. Matthews in the circuit court of said county on the 2d day of August, 1916. At that time, there was only one mortgage antedating the judgment upon the 224-acre tract in said county owned by J. W. Matthews. The validity of that mortgage was not questioned in the creditors’ bill filed by R. P. Neel on May 5, 1919, against J. W. Matthews and others in the White Chancery Court. Any mortgages or conveyances of that tract of land, or land subsequently acquired by_J. W. Matthews, were necessarily made subject to the judgment-lien in favor of Neel for $248.70 during its life as a lien. The equity of J. W. Matthews in all the lands could have been sold under execution on the judgment without reference to subsequent conveyances or incumbrances. All subsequent grantees stood in the place of J. W. Matthews, and their rights could not rise to a higher level than his during the existence of the judgment-lien. It was not necessary, before the expiration of the judgment-lien, to go into equity to set aside subsequent incumbrances or conveyances in order to reach the equity of Matthews. The remedy being complete at law, It was improper for a court of equity to assume jurisdiction of the cause for the purpose of declaring priorities of liens. The court of equity, having no jurisdiction for this purpose, could not assume jurisdiction to extend the lien of the judgment upon the theory that, having taken jurisdiction for one purpose, it would exercise jurisdiction for all purposes. The remedy to extend the lien beyond the three-year period from the date of the rendition of the judgment under the statute was by scire facias. This court, in -the recent case of Waldstein v. Williams, 101 Ark. 404, said: “The lien of a judgment upon real estate commences upon the day of the rendition of the judgment and continues for three years, subject to be further continued or revived by suing out a scire facias and taking judgment for that purpose.” Having ruled that the chancery court had no jurisdiction of the suit instituted on May 5, 1919, in the nature of a creditors’ bill to enforce a common-law judgment against the equity of J. W. Matthews in said lands, it is unnecessary to determine the other questions urged for reversal of the decree dismissing appellant’s bill for injunction.

For the error indicated, the decree of the chancellor, dismissing appellant’s bill is reversed and the cause remanded with instructions to reinstate it and to enter a decree in conformity with the prayer thereof.


author: McCulloch, C. J. Hart, J.

text:
    McKee v. English.
    Opinion delivered February 21, 1921.
    1. Highways — power to create separate districts by one statute. — It was competent for the Legislature by one statute to create three separate road districts in one county.
    2. Statutes — construction of amendatory and repealing act. — - Where the Legislature, in amending a statute, adopted the form of rewriting the sections amended and repealing the original sections, it can not be contended that the Legislature intended to repeal the sections as amended.
    3. Statutes — special session of legislature — governor’s call.— Where the Governor called an extraordinary session of the Legislature for “ratifying, confirming and validating special or local improvement districts,” etc., a statute attempting to cure irregularities in proceedings for- the formation of certain road improvement districts was authorized.

      4. Highways — invasion of county court’s jurisdiction. — 2 Road Acts 1919, p. 2034, creating a road improvement district, as amended by acts extraordinary session 1920, No. 520, § 6, subject-1 ing the district to the general supervision and control of the county court, held not void as invading the jurisdiction of such court.
    5. Highways — assessments—limitation to attack. — Landowners in a road improvement district can not attack as invalid for failure to assess telephone lines in the district where they have not brought action for that purpose within the time expressed in the statute creating the district.
    6. Highways — limit of assessments. — Where the assessments of the road tax on lands within a specail road improvement district is within the 30 per cent, maximum fixed by the statute creating the district, it is immaterial that the benefits are appraised at a sum in excess of that amount.
    7. Highways — effect of excessive assessment.- — If an assessment of road tax exceeds the maximum prescribed by a statute, it would not avoid the whole assessment, but would merely result in a proportionate reduction down to the maximum prescribed by the statute.
    Appeal from Washington. Chancery Court; B. F. McMahan, Chancellor;
    affirmed.

      E. P. Watson, for appellants.
    1. Act 529, Acts 1919, named three persons as commissioners for each of the three districts. The curative act did not amend this act by declaring that three commissioners should constitute the board in the future of district No. 3. The court erred in holding the curative act constitutional and the organization of district No. 3 valid.
    2. The contracts for building the roads in district No. 3 were illegally entered into by this pretended board of commissioners. No legal notice was given, and all advertisements for bids were without authority of law. Full thirty days’ notice is required, and time is essential in such matters. Page & Jones on Assessments, § 777-821, act 527, Acts 1919, p. 2048, § 9.
    3. The district is- laid off without regard to benefits to a large portion of the district. It is arbitrary and unjust. The act is unconstitutional, arbitrary and unjust.

      4. Section 7 of this amendatory act expressly repeals sections 6, 8 and 27 of the original act No. 529. Black on Construction of Laws, §§, 130-1. If an act he passed subsequent to the amendatory act repealing the original act, the amendment incorporated in the original act is repealed. 21 Mo. App. 587; 73 Mo. 88; 22 Tex. 588; 90 Mo. St. 627; 36 111. 162., By repealing sections 6 and 8 of the original act the heart of it was cut out, and the entire act became inoperative.
    5. But, if not repealed, sections 6, 8 and 27 are in full force, and the assessments are invalid, as property required to be assessed was left off the assessment rolls and the assessments are discriminatory and void. Page & Jones on Assessments, §§ 880-4; lb., §§ 639 to 645.
    6. Under the original act creating district No. 3, the assessors were not limited as to the amount of benefits ; the amendatory act, § 8, limits the assessment to 30 per cent, of the assessed value, and- it is a legislative determination of benefits. Page & Jones on Assessments, §§ 668 and 728, p. 1263. See, also, § 777. A failure to object to an assessment which is void is not a waiver of such defense.. Page & Jones, § 91i8; 34 Pac. Rep. 691. The statute is void, and the assessments exceed, the maximum limit provided by statute and laying out the road is arbitrary and void.

      Hill & Fitzhugh, for appellees.
    1. The act provides for only three commissioners. Even if nine commissioners had been appointed by the original act, and the district had acted through three commissioners, their acts would be validated by the act February 23, 1920, which ratifies and confirms all acts, proceedings and contracts of the commissioners. Section 5, act February 23, 1920; 134 Ark. 30.
    2. More than thirty days’ notice was given of the letting of the 'Contracts, and all irregularities were cured by the amendatory act. 134 Ark. 30.
    3. The roads were not laid off in an arbitrary manner. Authorities need not be cited as they are numerous.

      4. There was no unconstitutional interference with the jurisdiction of the county court. Both the original and amended acts fully recognize the jurisdiction of the county court. 130 Ark. 507; 125 Id. 375; 137 Id. 362.
    5. The amended act does not repeal itself.
    6. Failure to assess telephone and telegraph lines in the district does not render void the assessment on the balance of the property. The presumption is that the assessors did their duty, and the burden of proof was on appellants and they have failed to meet it, and (2) the presumption is that if these companies owned any real property that the same would have been assessed if they were benefited. 83 N. W. 183; 1 Page & Jones on Assessments, § 593.
    7. Benefits in excess of 30 per cent, have not been levied as the proof shows.
    8. All prior defects and irregularities were cured by the amendatory act of February 23, 1920.
    9. Plaintiffs are barred .by limitation, as the suit was not brought until after the twenty days’ limit had expired.
   McCulloch, C. J.

Appellant owns real estate situate within the-boundaries of Road Improvement District No. 3 of Washington County, an improvement district which was created by special act of the General Assembly of 1919, at the regular session (Yol. 2, Road Acts, 1919, p. 2034), and they instituted this action against the board of commissioners of said district attacking the validity of the statute, as well as certain proceedings of the board of commissioners.

The statute in question created three separate and distinct road improvement districts in Washington County numbered, respectively, 3, 4 and 5, and named three commissioners for each district, described the separate improvements to be constructed in each district and authorized the construction of the same and the assessment of benefits and levy of assessments, issuance of bonds, etc.

It was competent for the Legislature to adopt this form of creating by one statute numerous separate and distinct districts. Cumnock v. Alexander, 139 Ark. 153; White v. Ark. & Mo. Highway Dist., ante p. 160. This statute does not in express terms declare that each of the districts shall be separate and distinct, but such is the necessary effect of the language used in conferring authority on the commissioners to proceed with the construction of the improvements.

There was an amendatory statute enacted at the extraordinary session of the General Asesmbly in February, 1920 (unpublished act No. 529), which attempted to cure irregularities in the proceedings and also amended sections six, eight and twenty-seven in the original statute. The form adopted was to rewrite those sections anew, and the old sections were repealed. It is eon-tended that the amendatory statute repealed itself as well as the three sections mentioned in the original statute. The statement of the argument affords the best answer, for we can not assume that the lawmakers intended to do the absurd thing of expressly re-enacting certain sections with the intention at the same time to repeal them. What was clearly meant was to repeal the old sections as originally written and to substitute the new sections as rewritten.

It is also contended that the amendatory statute is void for the reason that such legislation was not embraced within the call of the Governor in convening the General Assembly in extraordinary session. If it be conceded that we are at liberty to go behind the action of the Legislature for the purpose of determining whether or not the statute in question fell within the scope of the call of the Executive, we find by examination of the Governor’s proclamation that it was sufficiently broad in its language to cover this statute. The purposes of the call, among other things, was for “ratifying, confirming and validating special or local improvement districts, organized under general laws or special or local laws, and enlarging the powers thereof.”

It is next contended that the statute is void because the authority to construct the improvement ..constituted an invasion of the jurisdiction of the county court. Section 6 of the section as amended contained the following provision: “Subject only to the general supervision and control of the county court of Washington County, Arkansas, as provided by the Constitution of said State, said boards of commissioners shall have exclusive jurisdiction over the construction and maintenance of the improvement herein provided for.”

We think that the language of this particular statute constitutes much stronger recognition of the jurisdiction of the county court and affords less ground for holding that it is an invasion of the jurisdiction of that court than does the statute under consideration in other cases where we held that there was no such invasion. Sallee v. Dalton, 138 Ark. 549; Cumnock v. Alexander, supra; Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168; McClelland v. Pittman, 139 Ark. 341; Bush v. Delta Road Imp. Dist., 141 Ark. 247.

This statute declares in express terms that the authority of the commissioners over the construction and maintenance of the improvements shall be subject to the jurisdiction of the county court. That is to say, that the county court shall .have the supervision and control of the action of the commissioners. We can scarcely sec how the authority of the county court could be more emphatically expressed.

The proceedings of the board of commissioners are attacked in several particulars, some of which are barred by the period of limitation provided in the statute for bringing suit to invalidate the assessment of benefits. It is contended that the assessments are invalid because of the failure to assess telephone lines in the district. It is not alleged in the complaint that the telephone companies owned property in the district subject to assessment. There is an allegation that there are telephone lines in the district, but' it does not allege that they constitute property of the character which is subject to assessment. ¿However, this is a matter of which appellants are barred by the failure to bring an action within the time expressed in the statute.

There is also an attack on the validity of the assessments on the ground that they exceed the maximum limit provided in the statute. The statute provides that the “entire assessments levied upon the property of the districts for the construction and completion of the improvements herein provided for shall not exceed 30 per cent, of the assessed valuation of the real property within the districts according to last assessment for taxation, exclusive of interest on bonds, and overhead or contingent expenses. ’ ’

It is neither alleged nor proved that the commissioners are about to levy assessments in excess of the maximum limit prescribed by the statute. According to the undisputed evidence, the valuation of the real property in the district for general taxation purposes aggregates $1,852,566, and $539,000 is the contract price for the cost of construction of the improvements. This is within the limit of thirty per centum prescribed by the statute. It is true that the assessors have appraised the benefits in excess of this amount, but the thing prohibited by the statute is the levying of assessments in excess of the prescribed maximum — that is to say, the imposition of a tax in excess of that per centum. There is a difference between the appraisement of benefits and the levy of assessments, and the fact that the benefits are appraised in excess of the prescribed maximum does not affect the validity of the assessments if there is no levy in excess of the statutory maximum. Moreover, if it.be conceded that the assessment ■ of benefits exceeded the maximum, it would not avoid the whole assessment, but would merely result in a proportionate reduction down to the maximum prescribed in the statute.

It is also contended that laying out the road to be improved as prescribed in the statute is arbitrary, and that this renders the statute void, but this constituted a legislative determination as to the feasibility of the prescribed route -of the road or laterals, and there is no showing in the pleadings or proof that this determination was arbitrary and unreasonable.

Lastly, it is contended that'the contract for the construction of the improvement was void for the reason that notice was not published for thirty days as provided by the original statute. It does not satisfactorily appear from the record that the notice was not published for a sufficient length of time before the letting of the contract; but, even if such were true, that is one of the irregularities which was cured by the amendatory statute.

Our conclusion is that none of the attacks upon the validity of the statute or the proceedings thereunder is well founded, and the decree of the chancery court is therefore affirmed.

Hart, J.

(dissenting). There is no use in threshing over old straw, and while it must be admitted that there is a far cry from Road Improvement District No. 1 v. Glover, 89 Ark. 513, where it was held that the county court might form improvement districts in parts of the county for the purpose of improving the public roads and then taking over the roads to be maintained as part of the highway system of the county, to Dickinson v. Reeder, 143 Ark. 228, where it was held that a statute authorizing the perpetual continuance of the board of commissioners for the purpose of repairing and maintaining the road after its improvement was not violative of the Constitution, and other cases holding valid statutes providing for the organization of the whole county in separate improvement districts and the inclusion of the same land in several districts. Judge Wood and myself think that the present case is another attempt by the Legislature to wrest from the county courts the jurisdiction over roads conferred upon them by our Constitution.

The statute under consideration provides that, subject only to the general supervision and control of the county court, as provided by the Constitution, the board of commissioners shall have exclusive jurisdiction over the construction and maintenance of the improved road. The use of the words, “exclusive jurisdiction,” conferred upon the commissioners was an evident attempt to arrest any active participation by the county court in the matter. By the use of the words, ‘ ‘ general supervision and control of the county court,” the Legislature evidently intended to define what the framers of the Constitution meant by giving the county courts exclusive original jurisdiction in all matters relating to roads, bridges, etc., in section 28, article 7 of the Constitution of 1874. This is shown, not only by the language used in the section just referred to, but in the other sections of the act.

Other sections of the act confer upon the commissioners power to make the improvements, to levy assessments for the construction of the same, and also to levy assessments for the maintenance of the roads after the improvements are finished. To give the commissioners exclusive jurisdiction over the construction and maintenance of the improvements, subject only to the general supervision of the county court, as provided by the Constitution, is an attempt on the part of the Legislature to take away from the county court all its jurisdiction except to approve the action of the commissioners, and, in exercising its power of approval or supervision, the county court could only say, “Well done, thou good and faithful servant,” regardless of its better judgment. If the commissioners can exercise exclusive jurisdiction to construct and maintain the road, what is left for the county court to supervise?

The framers of the Constitution did not confer upon the county courts power to supervise the action of other tribunals in all matters relating to roads, but it conferred exclusive jurisdiction in the county courts in all matters relating to roads. They evidently meant by the exercise of jurisdiction that the county court should act in the matter, and did not intend that exclusive jurisdiction to act should be given to another body or tribunal, and that the mere supervision over that body should be left to the county court. There is a marked difference between jurisdiction over a matter and supervision over the same matter. Jurisdiction confers the power to act, and supervision the power to inspect or approve merely. The difference is vital.

Where the county courts have exclusive jurisdiction in matters relating to roads, the public roads of a county would be laid out, vacated, improved and maintained by one tribunal. The whole system would be under one head. That the people understood this to be the meaning •of the Constitution is shown by them adopting an amendment to the Constitution giving the county courts of the State, together with the majority of the justices of the peace, in addition to the amount of county taxes allowed to be levied, the power to levy not exceeding three mills on a dollar on all taxable property to be known as the county road tax and to be used for the purpose of making and repairing public roads and bridges..

A county road is devoted to the public use and may be used by the general public as well as by the adjacent landowners. Indeed, it is a matter of common knowledge that roads are used for the purpose of hauling freight by persons who own no land, and that such use is more injurious to the roads than the use of them by the landowners in carrying their products to the nearest market town. Hence the necessity of placing the jurisdiction over all matters relating to roads in one body or tribunal, to the end that the public interest should be best served, is apparent.

The evils of placing the jurisdiction over public roads in different tribunals or bodies are manifest. Interested parties may organize road improvement districts and impose the expense thereof upon the adjoining landowners. It is comparatively easy to organize such improvement districts ostensibly for the special benefits to be derived by the landholders from the enhanced value to their lands, when in reality the purpose of the organization is for the gain of the promoters, and the local taxes imposed, in many instances, amount to practical confiscation of the landowners’ property. To illustrate: A promoter may organize a road improvement district and put lands in it situated miles away from the road, knowing that the traffic from the lands will never go over the road, and a special tax is thus levied upon the lands upon the theory that the lands will he ultimately enhanced in value by the proposed improvement. Again and again the same lands may be placed in road improvement districts where the roads are miles away from the lands and do not afford any passageway to and from them to the lands. The sum total of these special taxes will eventually amount to so much that they will be very burdensome.

It will be remembered that each improvement district may be organized by different people, and that no regard for the relation between the proposed improvement ( will be considered. Even if they were considered apii , projected at the same time, the divergent views of honest promoters and the selfish views of dishonest ones would place local taxes upon the lands which would be very burdensome to the owners.

Finally it may come to pass that the road next to the landowner’s farm, and which he uses to market his produce, will 'be made the subject of an improvement district. By that time the owner has reached almost the limit of his endurance in paying the special taxes; and, as the improvements may all he separate improvements, there is no provision for adjusting the assessments between the several separate districts and the landowners. Indeed, vested rights have sprung up in the meantime which would prevent this. Therefore, the landowner of small means must of necessity sacrifice his land and move away to another place where the taxes are less burdensome. Of course, it is well settled in law that a local improvement is one that shall benefit the property on which the cost is assessed in a manner local in its nature, and that such assessments should be limited to the amount of henefits received. The question of benefits has been construed to be so much a matter of opinion that a local improvement system of constructing, improving and maintaining roads in this State has proved exceedingly burdensome to property owners and in numerous instances has reached a point well nigh to confiscation. In such cases the property is sold to pay special taxes and will be purchased by speculators at a price which amounts to no more than the special taxes imposed and the costs and penalties which have accrued. As has been said by an eminent judge, “The victim of this'vicious system of taxation will be left houseless and homeless, with the miserable consolation that, although without home or shelter, he is rich in supposed benefits, which never were and never could have been reasonably expected to be realized.”

Our present Constitution was written at a time when extravagant taxation was prevalent in the State, and doubtless the framers of it had in mind to prevent a system so readily open to abuses when they declared that the county courts should have exclusive original jurisdiction in all matters relating to roads. This was an express and unequivocal mandate of the people that only one tribunal should exercise jurisdiction over the public roads. It was not intended that other bodies with divergent minds should actively exercise the jurisdiction, and that the county courts should only have supervision over their actions.

The present system has destroyed the freedom of action guaranteed the county courts under the Constitution. The whole system is opposed to every principle of equitable apportionment of taxes and has been well said in many instances “to be arbitrary exaction in its most odious form.”

Therefore we respectfully dissent.


author: McCulloch, C. J.

text:
    State v. Gloster Lumber Company.
    Opinion delivered February 21, 1921.
    1. Taxation — corporate property in another state. — Where a domestic corporation is actively engaged in business in this State, having its tangible property situated partly in this and partly in another State, in the estimate of value of its stock for taxation in this State the value of the tangible property in another State should be included; the above rule not being changed by Acts 1917, p. 1355.
    2. Taxation — corporate property in another state. — In assessing under Kirby’s Dig., § 6910, the stock of a domestic corporation operating its business and having all of its tangible property in another State, the value of such tangible property should be included in fixing the taxable value of its corporate stock.
    3. Taxation — domestic corporation. — Under Kirby’s Dig., § 6910, providing that the aggregate value of the stock of “all corporations doing business in this State,” after deducting the assessed value of its real estate and other tangible property, shall be “listed and assessed by the corporation as agent for its shareholders, such tax is assessable against domestic corporations not actively operating business in this - State.
    Appeal from Ouachita Chancery Court; J. M. Barker,- Chancellor;
    reversed.

      John D. Arbuckle, Attorney General, and George Vaughan, Special Counsel, for appellant.
    The sole question presented grows out of the fact that the active business of the defendant corporation is carried ¡on outside of the State of Arkansas. The court erred in holding that the complaint was without equity and in dismissing it. The complaint was sufficient and stated a cause of action and sufficiently alleged that defendant corporation was “doing business” in Arkansas.
    Although appellee’s tangible property situated in another State where its active business is being conducted can not be taxed in this State, its shares of stock can and should be taxed here, and the value of its tangible property in another State can be included in the estimate of the value of the stock to be taxed here. The law is settled. 128 Ark. 505; 198 S. W. 692, see page 515, also 517-18. 'See, also, lb. § 6396; Acts 1919, p. 244; 105 Ark. 370; 106 Id. 552; 131 Id. 40.
    The Arkansas law does not seek to assess both the property of the corporation and the shares of stock. It reaches out only for the latter in the hands of the shareholder — in solido at the corporation’s domicile. Since there is no tangible property of the corporation which the State can reach in Arkansas, there is no deduction permissible from the share value.
    The State in which a corporation is organized may provide in creating it for the domestic taxation of all the corporation’s shares, whether owned by residents or nonresidents. 232 U. S. 1; Am. Cas. 1916 C 842; 204 Mass. 138; 90 N. E. 415; 196 IT. S. 466; 53 Atl. 942; 64 IT. S. (Law. Ed.) 572; 40 Sup. Ct. Rep. 558.
    This is a property tax, not a privilege tax. See Joyce on Franchises, §§ 6-)S; 2 Fletcher, Cyc. of Corp., § 1149. It is property, and its taxation as property is specifically provided for by statute. Kirby’s Dig., § 6936 et seq.; act 262, Acts 1917, pp. 135-9.
    The shares are within the jurisdiction and taxable. 1 Dewing, “The Financial Policy of Corporations” (1920), page 7.
    Corporate shares are property, and the State has power to tax. 150 N. Y. 1; 44 N. E. 707; 54 L. R. A. 238; 55 Am. St. 632. See, also, 145 la. 1; 123 N. W. 743 - Gleason & Otis on Inheritance Taxation, p. 318; Ross on Inheritance Taxation, 246, § 182; lb., pp. 246-8; 186 N. Y. 220; 78 N. E. 939; 10 L. R. A. (N. S.) 1010; 173 Miss. 375-7; 76 N. E. 16.
    Arkansas has jurisdiction over the corporation and the property of its shareholders and can levy a'valid tax. 64 N. Y. 542; 51 Hun 312; 21 Utah 324; 56 L. R. A. 346; 186 U. S. 556; 129 N. Y. 558; 122 Tenn. 279.
    As illustrative cases from other States, see 170 N. W. 863; 40 Sup. Ct. Rep. 558; 21 Utah 324; 61 Pac. 560; 182 U. S. 556; 153 Cal. 549; 156 Id. 617; 10 N. E. 442; 102 Kan. 334; 170 Pac. 33. These authorities sustain the
      Bode,aw decision of this court. The true construction of the act comprehends all corporations. The intention and purpose of the act was to tax all intangible property. Kirby’s Dig., § 6936, was expressly repealed by the act,- and its plain purpose was to substitute a more efficacious and working formula for segregating intangible property. There certainly was no intention to reach and tax intangible property. Words in a statute which have previously been judicially interpreted are presumed to be used in that sense in the absence of anything to indicate a contrary intent. 36 Cyc. 1118; 72 Ark. 601, 610; 84 S. W. 224; 84 Ark. 316-320; 21 Ark. 5-8; 138 Id. 549. The phrase, “doing business,” has been often defined. 60 Ark. 120; 114 Id. 155; 125 Id. 413; 128 Id. 211; 136 Id. 417; 217 S. W. 1. The phrase ‘ ‘ doing business ’ ’ is employed in our Constitution in only one place. Art. 12, § 11. The Legislature in passing the act used the phrase as a limitation applicable only to foreign corporations, and section 2 of the act only applies to foreign corporations, leaving'section 6936, Kirby’s Digest, to take care of domestic corporations, and only that part of section 6936 which is in conflict, viz., that portion which relates to foreign corporations, will be held repealed. 11 Ark. 481, 490-8, 502; 80 Id. 203; 85 Id. 346; 86 Id. 343; 97 Id. 322; 112 Id. 101. An act should be construed so as not to conflict with the Constitution. 58 Ark. 407, 438; 69 Id. 376-8, etc. Technical terms used in a technical sense. 4 Crawford’s Digest, p. 4682, col. 2. Statutes must be construed as a whole. Black on Int. Laws, § 99; Endlich Int. of Stat. 258; Potter’s Dwarris on Stat. 197, 201; 2 Ark. 229, 250; 115 Id. 194; 140 Id. 398.
    The annulment of section 2 of the act upon constitutional grounds does not necessarily destroy the validity of section 1, which, it is conceivable, would have been enacted alone. Cooley, Const. Lim. (7 ed.), p. 246; 130 Ark. 70; 138 Id. 381; 216 S. W. 289.
    The title of the act and its context should be construed together as determining the meaning. 82 Ark. 302; 124 Id. 61, 20, 24. Any interpretation of act 262 tending to the unlawful result of relieving corporate property from its just burden of taxation ipso facto destroys the act and renders it invalid. Hence this court will not give the act such construction as to bring about an unconstitutional result, but will construe section 2 so as to include within its purview “all domestic corporations whatever and all foreign corporations doing business in this State,” etc. 37 Ark.- 356; 53 Id. 490. If section 6396 is applicable, it was repealed by act 262 of 1917.

      Oaughan S Sifford, for appellee.
    Under act 262 of 1917 the shares of stock of a corporation, .after allowing credit for the assessments of all tangible property in the State of Arkansas of the corporation, shall be assessed against the corporation and shall be paid by it as the agent for its shareholders. There is no other authority or power from the legislative branch of our government which authorizes a corporation tt> pay taxes on the shares of stock except this act. This act applies to no other corporations, whether foreign or domestic, except those doing business in this State; and if a corporation is not doing business in this State, it does not come within the terms of this act. The statute is plain and unambiguous and needs no construction. 93 Ark. 42; 65 Id. 521; 46 Id. 159; 59 Id. 237; 11 Id. 44; 56 Id. 110; 74 Id. 302. The Bodcam case does not decide this case. Our construction of the statute does not violate our Constitution. The repeal of section 6396 has the effect of nullifying the law as if it had never existed. 36 Cyc. 1224. The repealed statute is considered as a law that never existed except for the purpose of those suits which were commenced whilst it was an existing law. 30 Ark. 184. See, also, 134 !Cal. 316; 66 Pac. 322. The repeal of a statute giving a right destroys the remedy.
   McCulloch, C. J.

Appellee is a domestic business and manufacturing corporation organized under the laws ol the State in the year 1914, and is domiciled at Camden, Arkansas. It owns no tangible property of any kind situated in the State, and its assets consist of a sawmill, lumber, logs, merchandise, standing timber and timber lands situated in the State of Mississippi, where it operates the business of manufacturing and selling lumber. It has paid no property tax in the State of Arkansas since its organization; none has been assessed against it in this State; and the present action is one instituted by the Attorney General to recover taxes on the stock of said corporation, which, it is alleged, has thus far escaped taxation. The case was tried below on an agreed statement of facts, in which it is stipulated that if appellee is liable at all the sum of $500 is the proper amount to be recovered.

The contention of the. Attorney General is that, although appellee’s tangible property situated in another State where its active business is being conducted, can not be taxed in this State, its shares of stock can and should be, under the statutes of this State, taxed here, and that the value of its tangible property in another State can be included in the estimate of value of the stock to be so taxed here.

In the case of State v. Bodcaw Lumber Co., 128 Ark. 505, where the corporation involved was actively engaged in operating business in this State and its tangible property was situated partly in this State and partly m another State, we held that in the estimate of value of the stock of the corporation for taxation in this State the value of the tangible property in another State should be included. In the opinion in that case we said: “The valuation of the property outside of the State must be omitted when the property of the corporation itself is sought to be taxed; but when the effort is to assess the values of the shares of stock, it should not be deducted, for those shares of stock have a separate valuation existing here within the jurisdiction of the State, and upon which the State has a right to take its toll of taxation. ’ ’

That decision was rendered on March 12, 1917, and another statute on the subject was enacted by the General Assembly and approved by tbe Governor on March 17, 1917 (Acts 1917, p. 1355, Crawford & Moses’ Digest,' § 9965), which, it was contended in another case (Crossett Lumber Co. v. State, 139 Ark. 397) changed the rule announced with respect to the taxation of stock of corporations; but we held that this statute did not change the rule .announced in the Bodeaw case, supra.

The contention of learned counsel for appellee in this case is that the statute referred to which authorizes the taxation of shares of stock in a corporation against the corporation itself as the representative of the shareholders applies only to a corporation conducting its visible and overt business activities in this State, and that it does not apply to a domestic corporation which operates its business in another State where all of its property is situated. The statute applies in express words to “all corporations doing business in this State” (except certain ones enumerated); and requires them to annually file with the tax assessor “of the county wherein its principal office is situated” .a list or statement showing the number of shares of stock and face value thereof, the market value of each share, the aggregate market value or actual value of all stock, the total bonds of the corporation secured by mortgage on the corporation’s property and the value of such bonds, the assessed value of 'all real estate owned by the corporation, and the assessed value of all tangible personal property owned by the corporation and assessed under Kirby’s Digest, § 6910 (■Crawford & Moses’ Digest, § 9904).

The statute further provides that the aggregate value of all the stock of the corporation and its bonds,, after deducting the assessed value of its real estate and other tangible property, shall be “listed and assessed by the corporation as agent for its • shareholders, under the heading, 'intangible property.’ ”

The theory of counsel for appellee is that a corporation organized under the laws of this State and domiciled here does not come under the requirement of the statute if it has no tangible property here and is not visibly operating some kind of business here in. this State. That is not, we think, the correct interpretation of the statute. The words used in the statute are very broad. “All corporations doing business in this State” is the language used. A corporation organized and domiciled here is necessarily doing business here if it is doing business at all. Its life and existence are here, and all of its business activities necessarily emanate here primarily, if if functions at all. Its domicile is the fountain head of all its activities. We are speaking now of a domestic corporation, for none other is dealt with in this case.

The obvious purpose of the statute makes it very clear that the meaning of its framers was to include all corporations whose corporate stock is within the jurisdiction of this State in the exercise of its taxing power. To exclude a corporation situated as appellee is would be to make an exception which the law makers did not intend. It can not. be doubted that it is within the power of the State to tax, against the corporation itself,- the shares of stock of a corporation circumstanced like appellee. The fact that all of the tangible property of the corporation is situated outside of this State does not differentiate the case from prior decisions in which the tangible property of the corporations involved was situated partly in this State and partly outside.

Counsel for appellee argue that since the purpose of the statute was to tax the shares of stock against the corporation as the representative of. the shareholders, it is not unreasonable to assume that the law makers meant to omit all corporations not actively operating business here, leaving the shares of stock in all other corporations to be taxed against the individual shareholders. But this interpretation is against the policy obviously adopted by the framers of the statute to assess the shares of stock against all corporations existing here as the representatives of their respective shareholders. No reason is discernible for providing a different method of taxation merely because the corporation conducts its business elsewhere.

The conclusion is that the State is entitled to recover the taxes on appellee’s shares of stock. The decree of the chancery court is therefore reversed, and judgment will be entered here for the amount stipulated in. the event of recovery.


text:
    Pettit v. Anderson.
    Opinion delivered February 21, 1921.
    New TRIAL — VERDICT AGAINST PREPONDERANCE OP EVIDENCE. — Where, in overruling a motion for a new trial, the trial judge announced that he would not disturb the verdict though it was against the weight of the evidence, the cause will be reversed and remanded for a new trial.
    Appeal from Randolph Circuit Court; J. B. Baker, Judge;
    reversed.

      Pope & Bowers, for appellants.
    1. The court erred in refusing to give appellants’ instructions. 89 Ark. 24; 97 Id. 438; 110 Id. 571; 171 S. W. 869. The evidence clearly established adverse possession in appellants.
    2. The statements of the trial judge show that the verdict was contrary to the evidence and that a new trial should have been granted. 126 Ark. 427; 129 Id. 448; 130 Id. 374; 132 Id. 45.
   McCulloch, C. J.

Appellee was the plaintiff below, and instituted this action against appellants to recover possession of a small tract of land in Randolph County. Appellee pleaded adverse possession for the statutory period of seven years, and that presented the sole issue for the trial before a jury, which resulted in a. verdict in favor of appellee. There was a conflict in the testimony, but there was testimony on each side of the case legally sufficient to warrant a submission of the issue to the jury.

One of the grounds for the motion for new trial was that the verdict was not supported by sufficient evidence, and it therefore became the duty of the court to set aside the verdict if he concluded that the verdict was against the preponderance of the testimony. In passing on the motion for a new trial, the trial judge made the following announcement: “I will state to you frankly, gentlemen, that I do not.understand how the jury arrived at their verdict in this case. It seemed to me that the evidence in the case clearly showed adverse user of the tract of land in controversy for the statutory period of time before the filing of the complaint. But I have a very great respect for the finding of a jury on a question of fact, and am not disposed to overturn the verdict of the jury. I will not disturb the verdict of the jury, and the motion is overruled. ’ ’

The language thus used necessarily constituted a finding by the court that the verdict of the jury on the issue of adverse possession was against the preponderance of the evidence. If the testimony “clearly showed adverse user of the tract of land in controversy for the statutory period,” as stated by the court, then the verdict was necessarily against the preponderance of the evidence, and a new trial should have been granted. Twist v. Mullinix, 126 Ark. 427; Spadra Creek Coal Co. v. Callahan, 129 Ark, 448; Spadra Creek Coal Co. v. Barger, 130 Ark. 374; Mueller v. Coffmam, 132 Ark. 45.

There are other assignments of error, which we deem it unnecessary to consider, in view of the fact that the failure of the court to grant a new trial necessarily results in a reversal of the judgment.

The judgment is therefore reversed and the cause remanded for a new trial.


text:
    Sikes v. Douglas.
    Opinion delivered February 21, 1921.
    1. Highways — description op road. — Where 1 Road Laws 1919, p. 400, as amended by unpublished act of 1920, No. 228, described the road as a public road beginning at a point in a certain section of land where the road intersected an existing road, and running in a southwesterly direction through certain towns and to the south county line, and provided that the improvement is to be made upon the described route, or substantially so, "as the same may be designated and determined by the board of commissioners of said road improvement district and the county court,” the commissioners were authorized to adopt substantially the route indicated, when approved by the county court.
    2. Highways — general direction of road — deviations.—Where a statute creating a road improvement district described the termini and general direction, and authorized the commissioners to make the improvement upon the described route or substantially so, the commissioners, with the consent of the county court, were authorized to adopt the most practical route between the points designated, though it involved deviations from the general direction.
    3. Highways — notice of assessment. — -Under 1 Road Laws 1919, p. 400, creating a road improvement district, and providing in § 11 that, after the assessors shall have delivered to the president of the board of c&mmissioners their report or list of assessments, the president shall cause a notice to be published describing the land assessed and calling on the landowners aggrieved by reason of the assessments to appear on a day therein named, etc., notice is sufficient though signed by the president, nor is it material that the land is not described as the same was described in the report of the assessors, nor that the amount of the assessments was not stated in the notice.
    4. Highways — validity of assessment — failure to show adjournment. — An assessment on a road improvement district is not void because there is no record, showing the final adjournment by the board of commissioners after the completion of hearings on the assessments.
    5. Highways — attack on assessments — limitation.—An attack on the assessment of benefits in a road improvement district, on the ground that the asssessments were, unjust and made on the wrong basis, must be made in a suit instituted' within the time allowed by statute.
    6. Highways — unreasonable compensation to engineer — attack by property OWNER. — A landowner within a road improvement district may sue to prevent the enforcement of a contract made, by the road commissioners to pay the engineer of the district a grossly excessive and unreasonable compensation; and a paragraph ■ of the complaint alleging that the contract allowed the engineer 5 per cent, of the contract cost of $1,000,000, when 1 per cent, would have been adequate, is not demurrable.
    7. Highways — amendatory act — ratification of contract. — Act of January, 1920, No. 228, .amending 1 Road Laws 1919, p 400, creating a road improvement district, in ratifying “all proceedings of the commissioners,” referred merely to the regularity of the proceedings; the question of the fairness of the contract of employment of an engineer not being ratified.

      Appeal from Benton Chancery Court; Bern, F. McMahan, Chancellor;
    reversed.

      B. P. Watson, W. W. Sikes and W. O. Young, for appellant.
    1. Act No. 149 creating Boad District No. 2, Acts 1919, p. 400, is unconstitutional .and void. None except public roads can be improved under the powers given road improvement districts, and these roads must be in existence at the time the district is created,.and such roads must be well defined in the act or power given the commissioners to lay out the road and that by consent of the county court, and the facts alleged in the complaint entitle appellant to relief. The Legislature could not pass a special act laying out a road from Garfield to Brightwater. Const., art. 5, §§ 24-5.
    2. The act does not describe the road specifically.
    3. The proclamation of the Governor calling the special session did not specify that one of the purposes for which it was convened was to amend the special act, nor to ratify and validate the illegal acts of the commissioners.
    4. The act takes from the county court jurisdiction over county roads and is void.
    5. Notice to the landowners was not given as required by law, and it was signed by proper authority. Page & Jones on Special Assessments, § 752. Nor did the notice specifically describe the tracts of plaintiff’s lands that benefits had been assessed against. See section 11 of the act.
    The commissioners did not, prior to September 30, 1919, provide by resolution and place of record a resolution that the assessments should be paid in consecutive annual installments and fix the per centum of benefits to be paid for the year 1920. Assessment statutes and proceedings thereunder must be strictly construed and followed. Page & Jones on Taxation, §§ 229, 776.
    Plaintiff’s lands were not assessed according to the benefits and is arbitrary and void. Page & Jones on Taxation by Special Assessments, §§ 665-7. Tbe assessment is void. Ib., § 665. Tbe contract for engineers’ fees was exorbitant and void. Upon tbe facts alleged in bis complaint, appellant was entitled to be beard upon tbe merits of the case and the chancellor erred in dismissing the complaint.

      Duty, Duty <& Nance and Tom Williams and McGill <& McGill, Lee Seamster and Sám Peasley, for appellees.
    1. Tbe validity of these two improvement districts is settled in 218 S. W. 381. Act No. 28 validated and cured all defects and irregularities in tbe formation and organization of tbe districts attacked. Tbe notice was sufficient. 103 Ark. 452. It was properly signed. 26 R. C. L. 346; 186 U. S. 458; 111 Id. 701; 201 Id. 245.
    2. The suit was brought in time. 3 Sup. Ct. Reporter 863; 213 S. W. 733; Act 149, % 18. See, also, 218 S. W. 381; 130 U. S. 177; 265 Ul. 39; 26 R. C. L. 355 (§ 312); Ann. Cases 1916 A 707.
    All other irregularities were cured by tbe validating act. 83 Ark. 344; lb. 54; 98 Id. 113; 112 Id. 357. Tbe remedy provided by the statute must 'be followed. 134 Ark. 292; 137 Id. 587; 220 S. W. 56. See, also, 139 Ark. 424 ; 224 S. W. '622. Appellant can not question tbe validity of tbe contract. 222 U. S. 251; 89 Ark. 522. The contract was entered into long before tbe passage of tbe curative act and all irregularities were validated. 217 S. W. 258; 134 Ark. 30. As to tbe manner of assessments the contention of appellant has been adversely decided against him. 125 Ark. 325.
    The curative act amounted to a legislative determination that tbe assessment was fair. Appellant was given bis day in court and bis remedy was clear under tbe statute. 139 Ark. 277; 186 U. S. supra. •.

   McCulloch, C. J.

Appellant is the owner of real estate in a road improvement district in Benton County, designated as Road Improvement District No. 2 of Benton County, created by a special statute enacted by the Beneral Assembly of 1919, at the regular session (vol. 1, Road Acts 1919, p. 400) and lie instituted this action in the chancery court of that county against the board of commissioners of the district, and against the engineer of the district and the tax collector, to restrain proceedings under the statute. He attacks the validity of the statute itself and also the regularity of the proceedings thereunder in assessing benefits and in the employment of the engineer.

This is one of the districts, the validity of which was assailed in the case of Easley v. Patterson, 142 Ark. 52, wherein we upheld the statute. Most of the points of attack made by appellant on the validity of the statute were determined adversely to his contention in that case. The complaint, to which the chancery court sustained a demurrer, contains twenty-six (26) paragraphs, each attacking the statute or proceedings thereunder on various grounds. Many of the points of attack are abandoned here by failure to argue them in the brief. We will discuss only those points not deemed to have been expressly determined in the former case cited above.

It is first contended that the statute is void because the road to be improved is not- definitely described, and because it was not, as alleged, a public road at the time of the enactment of the statute. This point was decided against appellant’s contention in Easley v. Patterson, supra.

The amendment enacted at the extraordinary session in January, 1920 (unpublished act No. 228), described the road as a public road beginning at a point in a certain section of land “where said road intersects the Eureka Springs-Seligman road and running in a general southwesterly direction through G-arfield, Brightwater, Avoca, Rogers, Lowell and to the south county line ’ ’ on the line between two described sections of land. The statute further provides that the improvement is to be made upon the described route or substantially so as to the same may be designated and determined by the board of commissioners of said road improvement district and the county court of Benton County, Arkansas, and upon the most practical route between the points designated.”

This gives authority to the commissioners to adopt- and follow substantially the route indicated and calls into action the judgment of the county court in approving it.

But it is alleged that there is no public road running in a southwesterly direction from Garfield to Brightwater; that the public road from Garfield runs in a westerly direction north of west from Garfield and connects with a public road at Elk Horn Tavern, north of Bright-water; and that the county court has not opened a public road running in a southwesterly direction from Garfield to Brightwater. It will be observed that the statute does not describe the specific direction of the road from Garfield to Brightwater nor any other, section of the road, but it describes the general direction of the road from one terminus to the other. There may be deviations from the general direction which would not nullify the description. The commissioners are authorized, with the consent of the county court, to adopt the most practical route between the points designated. There is no allegation that the commissioners have, without the approval of the county court, adopted a route along which they are about to construct a road not opened as a public road. The contention of appellant on this point is-therefore unfounded.

It is next contended that the assessment of benefits is void because proper notice was not given so as to afford property owners an opportunity to object thereto. Section 11 of the statute creating the district provides that, after the assessors shall have delivered to the president of the board of commissioners their report or list of assessments, “the president shall cause a notice to be published in a newspaper published in said county of Benton, for two weeks, describing the land assessed and calling ■on the landowners aggrieved by reason of the assessments to appear on a day therein named, ’ ’ etc.

It is alleged that the notice was signed by the president himself, and the contention is that under the statute the notice should have been signed by the assessors — that (he president was merely authorized to “cause it to be published.” This contention is not sound. The statute does not require the assessors to do more than to “place in the hands of the president” the list or report of assessments. The president is required to ‘ ‘ cause a notice to be published,” which means that he shall give notice by publication in the manner prescribed. It is also alleged that the published notice “did not describe the lands assessed as the same was described in the report of the assessors” and that the notice “did not set forth the amount assessed against each particular tract or parcel of land. ’ The statute requires merely that the land assessed shall be described in the notice. .No form of description is prescribed, and it is not essential that the description be in the form adopted by the assessors. All that the statute requires is that there be such description of the land in the notice as is reasonably sufficient to put the owners on notice that their lands have been assessed. The statute does not require that the amount of the assessments be stated in the notice.

It is next argued that these assessments are void and unenforcible because there is, as alleged in the complaint, “no record showing the final adjournment by the board of commissioners'” after the completion of hearings on the assessments. The absence of a record of the adjournment does not prevent the assessment from becoming final and complete. In the absence of fraud or concealment, the mere fact that no record of the adjournment was entered on the minutes of the board would not affect the validity of the assessments.

The assessments of benefits are attacked on the ground that they are unjust and were made on the wrong basis; that the assessments on certain railroad property were reduced by the assessors to a sum which operated as discrimination against other property owners and that the amounts exceed the true benefits. These are matters which could only be raised in a suit instituted within the period of time prescribed by the statute. It is too late now to challenge the correctness of the assessments on those grounds.

In paragraph 25 of the complaint an attack is made on the contract with the engineer, and one of the prayers of the complaint is that the contract be canceled. That paragraph reads as follows: “That part of the overhead expenses for which said excessive assessments of benefits were made to pay, said board of commissioners of district No. 2, on March 7, 1919, at its first meeting and before any plans, specifications or estimates of costs of the proposed improvements had been made, and before said board fully understood the costs of said improvements, said board entered into a written contract with defendant, R. D. Alexander, by which they employed him, as chief engineer of said district, and agreed to pay him five per cent, of the actual cost of construcing the improvements aforesaid, not exceeding the cost of $1,000,000, and four per cent, on all cost of improvements in excess of $1,000,000. That said sum so agreed to be paid said engineer was an exorbitant price. That one per cent, of the amounts aforesaid would be an ample sum for his labor, material and skill.”

We are of the opinion that this paragraph states a cause of action to which objections, if anv, should have been made by a motion to make more definite and certain, rather than by demurrer. It is stated, in substance, that the contract is for the payment of a grossly excessive fee — that the contract is for payment of five per centum on the contract cost of $1,000,000, whereas, a reasonable fee would be one per centum of such cost.

Appellee, as a taxpayer, has a right of action to prevent the performance of such a contract if it be found to be grossly excessive and unreasonable. Seitz v. Merriwether, 114 Ark. 289. The commissioners had no authority to enter into a contract for payment of an unreasonable fee to an engineer. Sain v. Bogle. 122 Ark. 14; Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446.

Learned counsel for appellee contend that the snecial statute (act No. 228) constituted a ratification of the contract with the engineer and a determination by the Legislature of the fairness and validity of the contract. Not so. The statute only purports to ratify and confirm “all proceedings of the commissioners of road improvement districts.” The question of fairness and providence of the contract does not fall within the term “proceedings of the commissioners,” which refers merely to the regularity of the proceedings — to the thing which the lawmakers in the first instance might have dispensed with. If it had been intended to approve the substance of the contract made by the commissioners, more appropriate words would have been used.

The demurrer to this paragraph should have been overruled, and, upon answer filed putting in issue the question of reasonableness of the contract, the court should have tried that issue on the testimony presented. For the error indicated in sustaining the demurrer to paragraph No. 25 of the complaint, the decree is reversed and the cause is remanded with directions to overrule the demurrer. In all other respects the decree is affirmed.