author: McCulloch. C. J.

text:
    Bodcaw Lumber Company v. Goode.
    Opinion delivered June 25, 1923.
    1. Deeds — reservation in granting clause. — Where a reservation or exception from an absolute estate is contained in the granting clause, it must be read in connection with the grant as a limitation thereon, and is not void as being in conflict with the grant, though the rule is otherwise where it is contained in the habendum or any subsequent clause of the deed.

      2. Mines and MINERALS — reservation of mineral rights. — Though, there is a clear distinction between a “reservation,” which refers, to some new thing issuing out of the thing granted but not in esse, and an “exception,” which relates to a part of the thing granted, the terms are often used interchangeably, and where the word “reservation” was used when “exception” was intended, the courts will give effect to the intention qf the parties, so that a deed of land reserving mineral rights will be construed as excepting them.
    3. Mines and minerals — separate ownership. — Minerals- in land, including oil and gas, are part of the. land until' severed, and subject to ownership, separate from the ownership of the surface, and the mineral rights may be the subject of separate sale.
    4. Mines and minerals — adverse possession. — Where the title to minerals is separated from the title to the surface, the statute of limitations does not run against the right to the minerals, unless there is an actual adverse holding which constitutes an invasion of these particular rights; it being insufficient that the surface is possessed 'by a subsequent grantee under a de,ed not excepting the minerals.
    5. Mines and minerals — removal within reasonable time. — The rule that the owners of timber on another’s land must remove same within a reasonable time or lose the right to enter for that purpose, being based upon the impossibility of using the surface so long as the timber remains thereon, does not apply to the ownership of minerals, which does not interfere with the use of the surface, so that no lapse of time impairs the right of the owner of the minerals to enter to remove same.
    6. Mines and minerals — failure to pay taxes on separate ownership. — Failure of the owner of minerals in lands, the surface of which belongs to others, to list same for taxation and to pay taxes thereon did not injure the owner of the surface where the mineral rights were not separately assessed.
    Appeal from Columbia Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      Henry Moore, Jr., for appellant.
    The reservation in the granting clause of the deed of the mineral rights in the land conveyed will be construed to be an exception thereof from the grant to effect the intention of the grantor to carve out and retain all the mineral rights," including oil and gas. 98 Ark. 9; 99 Ark. 247. The reserving clause is not repugnant to the grant, hut only a limitation thereon. 94 Ark. 618; 78 Ark. 230; 112 Ark. 525. The owner of land in fee simple can convey the land to another and reserve to the grantor, or retain, excepting from the grant, the minerals, oil and gas that may he under the surface. 103 Ark. 180; 107-Texas 226; 215 S. W. (Ky.) 80. The Congress of the United States recognized this principle, act approved August 24,1912, Compiled Statutes, § 4638; also act approved July 17, 1914, 38 Statutes at Large, 309, 310; § 4640-B, Compiled Statutes; 155 U. S. 667; Tiedeman, Beal Property, 843. See discussions of question by Hon.'T: J. Gaughan before Arkansas Bar Association, 1922 session. Different estates may be created; there may be a severance of the mineral estate from the estate in the lands, which may be accomplished by an exception in a deed or by sale and conveyance. 4 L. B. A. (N. S.) 480; 152 Pa. 286; 18 L. B. A. 706; 141 W. Va. 559, 31 L. B. A. 128; 94 N. Y. 595; 93 Mo. 107,' 5 S. W. 605; 93 Va. 332, 24 S. É. 1020; Anderson’s Dictionary Law, 667; 2 Bapalge and Lawrence’s Law Dictionary, 723; 55 N. Y. 534, 14 Am. Bep. 132; 31 Pa. 427, 78 Am. Dec. 436; 60 L. B. A. 798; 143 Pa. 293, 13 L. B. A. 627, 24 Am. Bep. 544; 233 Pa. St. 540; Ann. Cas. 1913-iB. The State of Texas recognizes that there may be a severance of the mineral estate from the estate in the lands. Session Acts 1907, 490, Acts 1917; 150 S. W. 1151. Louisiana likewise, .act 31. Acts 1910, and also ¡a statute of our State, C. & M. Digest, § 9856. Oil and gas, like other minerals, belong to the owner of the soil. 28 Texas C. App.' 292, 69 S. W. 169; Neil v. Martin, 75 S. W. 430; 18 B. O. L., § 85; 27 Cyc. 681; Thornton, Law Belating to Oil and Gas, 32, §§ 19, 20, 52; 231 IT. S. 353, 34 Sup. Ct. 62, 58 L. ed. 264. Severance may be by conveyance of' the mines or minerals only, or by a conveyance of the land with reservation or exception as to the mines or minerals. 20 Am. & Eng. Enc. of Law, 772; 57 W. Va. 278, 50 S. E. 236. It is held that oil and gas have the power of self-transmission, but the later oases-hold that there is no analogy between the moving of these .minerals and animals ferae naturae in their tendency to wander at will. 177 U. S. 190; 49 N. E. 399; 176 S. W. (Texas) 717; 84 N. E. (Ill.) 46; 75 Pac. (Ean.) 995; 146 S. W. (Ark.) 122; 57 N. E. 912; 95 N. E. 225; 76 N. E. 525; 100 N. E. 681; 104 N. E. 983. ■ The overwhelming weight of authority supports the rule that a fee owner, or the owner of a separate estate in the oil and gas, holds an absolute title to these minerals while in place to the same extent and legal effect as though minerals involved where coal, iron ore, or any other solid mineral. 177 U. S. 190, supra, is the leading case in opposition to this rule. 49 N. E. 399; 43 S. W. 355; 27 S. E. 411; 43 W. Ya. 286; 28 S. E. 781; 45 W. Ya. 806. 32 S. E. 216; Lindley on Mines, § 859-B; 65 W. Ya. 636; Williams v. Oil Co., 52 W. Ya. 181; Thornton, § 619; 62 ~W. Ya. 167, 58 S. E. 915; 63 W. Va. 317, 61 S. E. 307; 166 Mich. 320, 120 N. W. 818; 51 Pa. 375; 57 W. Ya. 535, 50 S. E. 603; 41 W. Ya. 559; 23 S. E. 664, 56 Am. St. Pep. 884, 31 L. B. A. 128; 115 Minn. 239; 4 L. B. A. (N. S.) 477; 231 IT. S. 62, L. ed. Discussion of history of jurisprudence of the oil-producing States on fugacious character of oil and gas. James A. Yeasy. April number Michigan Law Beview. Concludes oil and gas in situ not fugacious, but form as much a part of the realty as iron, coal, sulphur, salt or any other mineral. The Louisiana case, Frost-Johnson Lumber Co. v. Sailings, 150 La. 756, 91 So. 207, holding contrary to the great weight of authority that mineral rights are not subject to separate grant, is little entitled to favorable consideration here. The exception of the mineral rights, if not valid in perpetuity, should certainly be held effective for a reasonable time. 77 Ark. 116; 127 Ark. 121; 237 IT. S. 101; 145 Ark. 310; 148 Ark. 301.

      Joe Joiner, for appellee.
    Oil and gas cannot be owned separate and apart from the land. 103 Ark. 180; 233 Ill. 9; 84 N. E. 53; 130 Pa. 235 ; 5 L. B. A. 731; 131 Ind. 277, 31 N. E. 59; 53 W. Va. 501, 44 S. E. 433; 1 Thornton on Oil and Gas Law, 43, par. 24; 239 Fed. 933; 177 U. S. 190. The reservation in the deed is repugnant to the grant, and void. 82 Ark 212; 98 Ark -570; 118 Ark 522; 131 Ark 103; 94. Ark 618; 195 Ill. 181, 62 N. E. 809; 22 Ky. L. Rep. 814, 64 S. W. 413; 24 Ky. L. Rep. 1364, 70 S. W. 1062; 103 Md. 696, 63 Atl. 965; 214 S. W. (Tex.) 537. 82 Ark. 212 has not been overruled, as contended by appellant, and was cited in 131 Ark 103. The clause in this deed is a reservation and not an exception. 141 Iowa 438; 99 Ark. 244; 241 Fed. 581. Appellant has lost its right, if any it had, by abandonment. 205 S. W. (Ark.) Ill; 169 S. W. (Ark.) 957; 97 Ark. 167; 192 S. W. (Ky.) 79; 225 S. W. (Ark.) 347. Appellant did nothing in all the time, more than 10 years, it claimed to own the mineral rights, to indicate its ownership. It did not have same separately assessed nor pay taxes thereon, as required in C. & M. Digest, 9857, while appellee was assessing and paying taxes on the land which included these minerals. Its claim is barred. C. & M. Digest, 6942; 1 Thornton, Law of Oil and Gas, 77, 111.
   McCulloch. C. J.

This controversy involves the gas, oil and other mineral rights in and under a certain tract of land, containing forty acres, in Columbia County. Appellant, a corporation, formerly owned the land in fee simple, and in the year 1912 it conveyed the land to appellee by warranty deed but the granting clause contained a reservation (or exception) of the oil, gas and other mineral rights, in the following language:

“Reserving to the grantor, its successors and assigns, all of the gas, oil and minerals and mineral rights in and under said land, with the right to prospect for and exploit the same, and use sufficient surface therefor, and the right to lay, maintain and operate pipe lines for oil and gas; and the right to erect, maintain and operate telephone and telegraph lines, with the right reserved to remove any building, machinery, pipe lines or other property erected or placed on said land in connection therewith; and reserving to said grantor, its successors and assigns, a right-of-way for railroad or tramroad not exceeding one hundred feet in width across said land, if same shall he necessary for, or desired by it, its successors or assigns, such pipe lines for oil and gas 'and such telephone and telegraph lines and such right-of-way, however, not to infringe upon or interfere with any improvements upon said land without payment of a reasonable amount for damages caused thereby.”

Appellee instituted this action against appellant in the chancery court of Columbia County to cancel the reservation clause in said deed, and to quiet his title. In the complaint he alleged that appellant had not explored this tract of land for oil, gas or other minerals, nor any other land in that county, and that appellant had not paid any taxes on the mineral rights in the land. Ap-pellee also pleaded the statute of limitations in bar of the right of appellant to assert any mineral rights in the land, and also pleaded in his 'Complaint that appellant was barred by laches in not proceeding more expeditiously to explore the land for minerals.

Appellant answered, but the answer really tendered no issue of fact, and attempted to raise questions of law upon the facts pleaded in the complaint. The court sustained a demurrer to the answer, and appellant elected ■ to stand upon it, and the court rendered a final decree in favor of appellee, canceling the reservation clause in the deed, and quieting appellee’s title as against any claim of appellant to mineral rights.

It is first contended that the reservation clause is void as being in conflict with the grant. It will be observed, however, that the clause in question is a part of the granting clause of the deed, and must therefore be read in connection with the grant 'as a limitation thereon, rather than as being in conflict with it. This is the rule where an exception or reservation is found in the granting clause of a deed. Fletcher v. Lyon, 93 Ark. 5. It is otherwise where the clause attempting to limit the grant is contained in the habendum, or any subsequent clause of the deed. McDill v. Meyer, 94 Ark. 615.

There is another preliminary to the main question in the case with respect to the language of the clause in using the word ‘ ‘ reservation, ’ ’ instead of ‘ ‘ exception. ’ ’ There is a clear distinction, of course, between a reservation and an exception in a deed, in that there may be a reservation to the grantor of some new thing issuing out of the thing granted but not theretofore in esse, whereas an exception relates to a part of the thing granted. These terms are too often used interchangeably, however, to be material, and it always becomes a question to determine what the real intention of the parties was with respect to the thing granted. Parker v. Parker, 99 Ark. 244. There are many authorities on this subject in other States, and it is uniformly held that where the word “reservation” is used, and it is clear that the intention of the grantor was to create an exception to the grant, the clause will be construed so as to carry out the obvious intention of the partlies. Tiedeman, Real Prop. 843; Thornton, Oil & Gas, § 303; 20 Am. & Eng. Ency. of Law, p. 772; Poston v. White, 57 W. Va. 278.

It is evident from the language used in the present deed that it was the intention of the grantor to carve Out and retain all of the mineral rights, including oil and gas. This was clearly and necessarily the intention of the parties, because, treating the word “reserving” in its technical sense, it is wholly inapplicable, for the mineral rights were part of the land, and not a new thing like an ordinary easement, such as a right-of-way, to be reserved. We therefore treat .the deed as having properly attempted to create an exception of all mineral rights from the grant and to retain those rights in the grantor.'

The real question involved in the case is whether or not mineral rights in and under land can be severed from the fee' to the surface and the title in perpetuity be retained by an exception, or whether snch an exception, in whatever language it may be couched, amounts to no more than a mere servitude in the form of a license to use the surface for the purpose of enjoying the mineral rights.

The further question arises whether or not, if the exception operates as a retention of the title to the severed mineral rights, enjoyment of those rights can be ' barred by adverse occupancy of the surface of the land.

There has been a wealth of discussion on the subject whether or not there can be a severance of the surface and mineral rights in land so as to uphold a sale or reservation of the latter, and there is not entire harmony in the discussion, but it appears to us to be in accordance with the great weight of authority to say that there! may be such separation, and that mineral rights, even those including gas, a volatile substance and generally referred to as being of a vagrant character and liable to escape, may be the subject-matter of a separate sale or reservation so as to' create or reserve a right in perpetuity. That principle was clearly recognized by this court in the case of Osborn v. Arkansas Ter. Oil & Gas Co., 103 Ark. 175. This precise question was not involved in that case, but the language of the court was an essential part of the reasoning in determining the question involved. It involved an interpretation of a sale or lease of mineral rights with respect tó the distribution of the royalties among different owners. In that case we said:

“It has been said that natural gas is a fluid mineral substance, subterraneous in its origin, possessing in a restricted degree some of the properties of underground waters, and resembling water in some of its habits. It is found in the land, but has the power to escape without the volition of the owner of the land. It has, however, been well settled, we think, that natural gas is a mineral, and while in place of any particular land it is a part of the land itself. Until severed from the -réálty, it is as much ¡a part of it as coal or stone; and, so long as it remains under the ground, it is treated as a part of the realty itself under the surface of which it lies. It therefore belongs to the owner of the land in which it is found, and, as long as it remains in the particular tract of land, the owner of the surface is the owner of the gas beneath it. It has been uniformly held that conveyances of gas in its natural state in the land require all the formalities of a conveyance of any other interest in the same real estate, and that the ownership of the gas passes to the grantee of the land itself, in event the right to the same is not expressly reserved in the deed conveying the land. ’ ’

In-two of our neighboring States (Texas and Oklahoma), where there are extensive gas and oil fields, it has been decided by the courts of last resort in accordance with the views now expressed. The Supreme Court of Texas, in the case of Texas Company v. Daugherty, 107 Tex. 26 (quoting from the syllabus), held:

“The fact that oil and gas, from their fluid and fugitive character while in the ground, are capable of escaping from its owner or of being drawn off by an adjoining proprietor, while qualifying the title in them held by the owner of the soil, does not prevent them from being treated as minerals and a part of the realty, capable, as such, of transfer and separate ownership, the purchaser assuming the risk of reducing them to possession and absolute ownership.”

The Chief Justice, speaking for the court in that ' case, after discussing the peculiar attributes of oil and gas as minerals and the comparison made by some authorities of those minerals to things ferae naturae, said:

“The possibility of the escape of the oil and gas from beneath the land before being finally brought within actual control may be recognized, as may also their incapability of absolute ownership, in the sense of positive possession, until so subjected. But, nevertheless, while they are in the ground, they constitute a property interest. If so, what is the nature of it in the hands of the original owner? It embraces necessarily the privilege or right to take them from the ground. But is that its extent, or sole character? While they lie within the ground as a part of the realty, is the ownership of the realty to he denominated, as to them, a mere license to appropriate, as distinguished from an absolute property right in the corpus of the land? With the land itself capable of absolute ownership, everything within it in the nature of a mineral is likewise capable of ownership so long as it constitutes a part of it. If these minerals are a part of the realty while in place, as undoubtedly they are, upon what principle can the ownership of the property interest which they constitute while they are beneath or within the land, be other than the ownership of an interest in the realty?”

The Supreme Court of Oklahoma has held in several cases that mineral rights may be severed so as to be the subject of a conveyance or an exception in a grant, that the title to that extent may be conveyed or retained, and that adverse occupancy of the surface for the statutory period of limitation does not bar the right to separate enjoyment of such mineral rights. Barker v. Land Co., 64 Okla. 249, L. R. A. 1918-A, 487; Ramey v. Stephney, (Okla.) 173 Pac. 72; Rich v. Donaghey (Okla.), 177 Pac. 86.

In Rich v. Donaghey, supra, the Oklahoma court said:

“¿But, with respect to such oil and gas, they had certain rights designated by the same courts as a qualified ownership thereof, but which may be more accurately stated as exclusive right, subject to legislative control against waste and the like, to erect structures on the surface of their land, and explore therefor by drilling wells through the underlying strata, and to take therefrom and reduce to possession, and thus acquire absolute title as personal property to such as might be found and obtained thereby. This right is the'proper subject of sale, and may be granted or reserved.”

In the present case we are not dealing with the question of merely a gas lease and the effect of a gas lease, and we express no opinion on that subject, so far as the question in this case is concerned, further than to refer to cases like Mansfield Gas Co. v. Alexander, 97 Ark. 167, and cases following it, where we held that, in the case of a mere lease for the purpose of exploring for gas and the production of same, there could be an abandonment'of the rights unless work began within a reasonable timé. There are several other cases, which it is unnecessary to cite, in which we have dealt with the question of gas leases, or at least what were instruments of writing which were conceded to be gas leases, but in the present case we deal solely with what is undeniably a conveyance with the intention to introduce an exception which would carve out and retain the mineral' rights in perpetuity.

The Supreme Court of Louisiana has decided contrary to the view:» we now express and those expressed by the Oklahoma and Texas courts. Frost-Johnson Lumber Co. v. Sallings, 150 La. 756, 91 So. 207. The opinion of the Louisiana court is not only instructive as an elaborate discussion of the subject, but it is very interesting because of the fact that the court made two changes in its decision, first holding that oil and gas rights could not be severed so as to constitute a separate sale, and on rehearing it was decided to the contrary, but on a second rehearing the court returned to its original view .and held that a grant or reservation of oil and gas “carried only the,right to extract such minerals from the soil;” that the right granted or reserved in such case is a servitude, which is lost by non-user for a period of ten years, in accordance with the terms of a governing local statute with reference to chattel interests and with reference to the duration of such servitude. On the last rehearing the court based its conclusion on what was conceived to be a rule of property established by a long line of decisions in that State, though the majority opinion declared that those cases were in harmony with the weight of authority in other States. There was a dissenting opinion by the minority, holding, as we do, that such mineral rights are subject to separate grant.

We are of the opinion that the great weight of au-| thority supports the view that mineral rights are sub-! jéct to separation from the surface rights so as to be ' the subject of separate sale. What we think is the pre- 1 vailing rule is stated in 18 R. C. L. p. 1175, as follows:

“The severance of a mine and the surface of lands may be accomplished by a conveyance of the mines and minerals, or by a conveyance of the land with a reservation or exception as to the mines and minerals. There is no substantial difference between these two methods in the result accomplished; for a reservation will be construed as an exception where there is the plain intent, and the grantor will retain himself a fee simple estate in the portion served. And so the fact that, subsequent to the severance of the minerals from the surface estate, a conveyance of the land is made in which no reservations or exceptions of the minerals are set forth, does not extinguish the rights of the mineral owner nor vest any of the mineral rights in the grantee of such a conveyance. Either a grant or exception of ‘minerals’ will include all inorganic substances which can be taken from the land, and, to restrict the meaning of the term, there must be qualifying words or language evincing that' the parties contemplated something less general than all substances legally cognizable as minerals.”

Another text-writer on this subject (Thornton on the Law of Oil & Gas,( vol. 1, § 342) states the rule as follows:

“A reservation or exception of all the mineral in a tract conveyed is a separation of the estate in the mineral from the estate in the surface. ‘A reservation of minerals and mining rights is construed as is an actual .grant thereof.’ ‘A reservation of mineral and mining rights from a grant of the estate, followed !by a grant to another of all' that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had first been granted to him with a reservation of the surface. ’ Of course, what is true of a reservation is also true of an exception. In case of either a reservation or an exception, the grantor has a right to enter on the surface with all the usual necessary appliances, to remove the mineral, without any express authority reserved to that effect. In cáse of a reservation of minerals, such mineral descends to the grantor’s heirs.”

The same writer states the rule to be that oil and gas are included within the term “minerals,” ‘though that question is not involved here, inasmuch as the exception in the deed before us expressly includes oil and gas. There are too many authorities on this subject to justify a citation of them all, but we find that the weight of authority supports our contention, and the following cases are cited: Scott v. Laws, 185 Ky. 440, 13 A. L. R. 369; Crowe v. Atkinson, 85 Kas. 357, 25 Ann. Cas. 1196; Hyde v. Raney, 233 Pa. St. 540, 27 Ann. Cas. 726; Moore v. Griffin, 72 Kan. 164, 4 L. R. A. (N. S.) 475; Murray v. Allred, 100 Tenn. 100, 39 L. R. A. 249; Northcut v. Church, 135 Tenn. 541, Ann. Cas. 1918-B, 545; Gill v. Fletcher, 74 Ohio St. 295; Lovelace v. Southwestern Pet. Co. (Circuit Court of Appeals, 6th Circuit) 267 Fed. 513; Sult v. Hochstetter Oil Co., 63 W. Va. 317; Weaver v. Richards, 166 Mich. 320; Buck v. Walker, 116 Minn. 239.

Most of the cases which declare what we think it is correct to term the minority rule make an exception as to gas, and seem to be influenced by the character of that fluid, and hold that it is of such a vagrant nature that it cannot be the subject of absolute ownership.- This seems to be the fact that influenced the Supreme Court of the United States in the case of Ohio Oil Co. v. Indiana, 177 U. S. 190, applying the law of Indiana as declared by the Supreme Court of that State.

According to many writers on this subject, the view most generally entertained by geologists at present is that gas and oil are not of a vagrant character and do not migrate, but maintain their situs until they are drawn out or expel themselves by pressure through artificial openings in the surface, and the tendency of later decisions is to hold that oil and gas, while in place and before being drawn out by artificial openings, are as much a part of the realty as fixed minerals, such as coal' or iron.

Our conclusion on this subject is that the majority rule is sound, and that it works out a more definite result than the rule that mineral rights cannot be separated and that a conveyance thereof merely creates a servitude. It necessarily follows, from the adoption of this view, that the separate title to the minerals is retained in perpetuity and that the statute of limitations does not run against these rights unless there is an actual adverse holding which constitutes an invasion of these particular rights. Such is the unanimous view in all the authorities which hold that there is a right of separation and separate conveyance. This subject is thoroughly discussed in the Tennessee cases cited above, also in the case of Scott v. Laws, supra, and in that case note in 13 A. L. R., and there is little left to be said on the subject. The rule of those authorities is that the title to minerals beneath the surface is not lost by nonuser nor by adverse occupancy of the owner of the surface under the same claim of title, and that the statute can only be set in motion by an adverse use of the mineral rights, persisted in and continued for the statutory period.

As presenting an analogous question, our attention is called to the case of Liston v. Chapman & Dewey Land Co. 77 Ark. 116, where we held that a deed to standing timber which specifies no time for removal “conveys to the grantee an estate in the timber which runs with the land, and goes on forever, but that the right to enter upon the land for removing the timber exists for only a reasonable time after the execution of the deed, and that, if the grantee thereafter enters upon the land to remove his own timber, he will he guilty of trespass.” It is insisted that, in order to he consistent, we should follow that rule with respect to minerals. We think, however, there is a broad distinction between a sale of timber and mineral rights, for the use of the former necessarily creates a burden upon the owner of the surface which is not consistent with use by the latter, whereas the use of the surface for mining purposes is only incidental and does not necessarily impair, to a serious extent, the enjoyment of the surface rights. In the Liston case, swpra, we expressly recognized the anomaly and apparent contradictions in that phase of the law with reference to the absolute title to the timber and yet the requirements that the right thereunder must be exhausted within a reasonable time, but we have no hesitancy in saying that the reason for that rule as applied to the removal of timber has no application to the enjoyment of mineral rights where there is no interference with the enjoyment of surface rights during the period of delay. Since there was an independent and separate right to the minerals, no lapse of time would impair the continuance of the right or bar its enjoyment on account of laches.

In the complaint it is alleged, as grounds for the application of the doctrine of laches, that appellant had not paid taxes on the land, but the answer is that appellant was not required to pay taxes on the land unless there was a separate assessment of the mineral rights, and the owner of the surface rights suffered no injury by-the failure of the owner of the mineral rights to separately pay taxes.

'Counsel for appellee also discuss the question of public policy involved in the separation of mineral rights from surface rights, but we perceive no question of public policy involved, in the absence of an express statute declaring such policy.

The decree of the chancery court, which is in direct conflict with the law as now declared, is reversed, and the canse is remanded, with directions to dismiss the complaint of appellee for want of equity.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    First National Bank of Mineral Springs v. McKee.
    Opinion delivered June 25, 1923.
    1. Trial — direction op verdict. — Where the testimony on the material facts is conflicting, it is error to direct a verdict for either party.
    2. Pledge — effect of surrender by pledgee. — Where a hank pledged warehouse receipts, of which it was the legal holder, to another bank for payment of a loan to it, or delivered them to such bank to secure a loan to another by whom they were originally pledged to it, the bank could redeem its pledge; but where it surrendered possession of the receipts to the original pledgor, it lost the pledge and could not redeem same, retention of pledged chattels being essential to preservation of the pledge.
    Appeal from Howard Circuit Court; James 8. Steel, Judge;
    reversed.

      Lake & Lake and J. G. 8am, for appellant.
    The evidence was in conflict upon the material facts of the case, and the court erred in directing a verdict. 107 Ark. 158; 148 Ark. 66; 120 Ark. 208; 105 Ark. 130; 98 Ark. 334; 105 Ark. 526. Thomason was the owner of the cotton for which appellee had warehouse receipts to secure its advances and took said receipts and pledged them with appellant bank for money he paid to appellee. If the appellee held the cotton as a pledge, it lost its right by surrendering the receipts to Thomason and allowing them to be pledged to appellant bank. 98 Ark. 379; 31 Cyc. 817; 142 Ark. 132. The Bank Commissioner made no offer or attempt to redeem the pledge within 60 days. C. & M. Digest, 728. Appellee is estopped from claiming these warehouse receipts.

      ■ W. P. Feasel and A. D. DwLaney, for appellee.
    The appellant was a creditor of both appellee and Thomason. Appellee was the principal debtor, primarily liable upon the acceptance, and Thomason, the drawer, was secondarily liable. Appellant held possession of the pledged chattel as security for the $5,000 debt only, and when it was paid its rights in the collateral ended. Appel-lee surrendered this pledge only as collateral for the $5,000 debt, and, when it was paid, had the right to return of the pledge. 32 Ark. 56; 65 Ark. 548; 74 N.' Y. 233; 142 Mass. 76; 136 N. Y. 152. There is no question of estoppel here. Appellee bank’s failure to pay the acceptance constituted neither a waiver nor an estoppel. The draft shows on its face that 125 bales of cotton were put up as collateral. Bank of Mineral Springs became principal debtor on acceptance of draft. 7 Barb. N. Y. 752; C. & M. Digest, § 7828 ; R. C. L. 1144; 1 L. R. A. 648 ; 37 U. S. 13 Peters, 136, 10 L. ed. 95. Appellant admits it refused to accept the tender in payment of the draft and surrender the collateral. It makes no difference that appellee did not offer to redeem collateral within 60 days, since the status was not changed before offer made.
   McCulloch, C. J.

This is an action at law, instituted by the State Bank Commissioner, as receiver of the defunct Bank of Mineral Springs, to recover from appellant sixty-nine bales of cotton held by the latter as a pledge for the security of a debt.

It is alleged in the complaint that a portion of the debt for the payment of which the pledge was made has •been paid, and tender was made of the balance of the debt in redemption of the pledge. The answer contains a denial of the allegations of the complaint with respect to the manner in which the pledge was made and appel-lee’s right to redeem. There was a trial of the issues, and the court directed a verdict in favor of appellee; judgment was rendered accordingly, and an appeal has been prosecuted.

The uotton in controversy was of the crop of the year 1920. T. J. Thomason was engaged in the business of buying and selling cotton at Mineral Springs, and conducted his banking business with the Bank of Mineral Springs. In the operation of his business it was his custom, as well as that of other cotton buyers, when he bought a hale of cotton on the street to place his tag on it, then the purchaser would deliver it to a public warehouse at that place and receive a warehouse receipt showing the weight of the hale, on which, when brought hack to Thomason, he would indicate the price to he paid the purchaser, and place his- O. K. Thoma-son had an arrangement with the Bank of Mineral Springs to pay for his purchases, and the seller would then take the warehouse receipt, with Thomason’s O. K. thereon, to the hank, which would serve as a draft, or voucher. The hank would pay the amount of the- price of the hale of cotton and retain the warehouse receipt.

The evidence is sufficient to show that the hank, under its arrangement with Thomason, held the warehouse receipt as a pledge for the amount of money paid to the seller, hut the proof shows that Thomason was permitted to control the sale of the cotton, and when he negotiated the sale of a given number of hales he would take the warehouse receipts out of-the hank and ship the cotton out hy carrier, and deliver to the hank a draft on the purchaser with hill of lading attached.

In the early part of the year 1921, while Thomason was indebted to the Bank of Mineral Springs, the cashier requested Thomason to sell a lot of the cotton and use the money in reducing Thomason’s indebtedness to the hank. On -the 23rd of February, 1921, an arrangement was made with appellant, First National Bank of Mineral Springs, to loan the sum of $5,000 and receive as pledge 125 hales of the Thomason 'cotton, -as evidenced hy the warehouse receipts then in the hands of the Bank of Mineral Springs. This arrangement was consented to all around, and was carried out by the delivery to appellant of warehouse receipts representing 125 bales of cotton, and appellant’s cashier issued two drafts, aggregating the sum of $5,000, each payable to Thomason, and Thomason indorsed these drafts over to the Bank of Mineral Springs, which were applied on Thomason’s indebtedness. As evidence of the loan, Thomason drew his draft on the Bank of Mineral Springs in favor of appellant, payable thirty days after date, and this draft was accepted by indorsement made thereon by Kent, cashier of the Bank of Mineral Springs. After maturity of this draft it was renewed for ten days by another draft, indorsed as the first one, and the last draft was not paid at maturity. Demand was made, upon the Bank of Mineral Springs, but, according to the testimony, it declined to pay, and insisted that the cotton be sold to pay the draft.

Thomason sold a portion of the cotton, by consent of appellant, and the purchase price was applied on the debt to appellant for which the cotton was pledged, reducing the debt to the sum of $1,795. After the sale • was made it left sixty-nine bales of cotton still in the hands of appellant, and this is the cotton now in controversy. The affairs of the Bank of Mineral Springs were shortly thereafter taken over by the Bank Commissioner as receiver, and subsequently the Bank Commissioner, acting through his special deputy in charge of the affairs of the Bank of Mineral Springs, tendered to appellant the sum of $1,795 and demanded possession of the cotton. On refusal to deliver, this action was instituted to recover the cotton.

Thomason was indebted to appellant in a large sum of money in addition to the amount for the payment of which the cotton was originally pledged, and appellant held the cotton as security for this additional amount, and refused to surrender it to the Bank Commissioner on demand.

The facts thus recited are undisputed, but there is a sharp conflict in the evidence as to the manner in which, the cotton was pledged to appellant. The contention of appellee was, and is, that the warehouse receipts, as evidence of the title to the property, were in the hands of the Bank of Mineral Springs as a pledge, and that the hank borrowed money from appellant and pledged the cotton to appellant as security for that particular debt, the draft evidencing the loan being drawn by appellant in favor of Thomason, and Thomason drawing a draft on the Bank of Mineral Springs for the amount of the loan being a matter of form. In other words, the contention of appellee is that the money was loaned by appellant to the Bank of Mineral Springs, and that that bank pledged the cotton for the security of this debt, and is entitled to redeem the cotton by the payment,of the balance of the debt. Mr. Kent, cashier of the bank, testified in support of this contention of the bank, and stated that he negotiated the loan from appellant bank, carried the warehouse receipts for the cotton over to appellant bank, and delivered the same to the cashier. There is other testimony in the record tending to support him in that contention. On the other hand, there is abundant testimony that the loan made by appellant was to Thomason direct, that Thomason negotiated the loan, obtained the warehouse receipts from the Bank of Mineral Springs, and delivered them to appellant as security for the loan. The cashier of appellant bank, the president and some of the directors and employees who participated in the transaction, all testified that Thomason came to the bank and arranged for the loan, and when the directors agreed to make the loan and so indicated to him, he obtained the warehouse receipts and brought them over and delivered them to the cashier of appellant bank, received the two checks for the amount of the loan, and indorsed them over to the Bank of Mineral Springs to be credited on his debt. Thomason himself testified that the loan was made to him, and that he took the warehouse receipts to appellant bank and delivered them as security for the loan. Thomason also testified that he was not indebted to the Bank of Mineral Springs in any sum at the time this suit was commenced. He testified that, on a proper accounting between him and the Bank of Mineral Springs, it would be shown that he was not indebted to the bank in any sum.

There being a conflict in the testimony upon ,the material facts in the case, it was error' for the court to direct a verdict in favor of either party.

If the Bank of Mineral Springs was the legal holder of the warehouse receipts evidencing the ownership of. the cotton, and did not surrender the receipts to Thomason, but obtained the loan from appellant and pledged the warehouse receipts for the payment of the debt; or, even if the Bank of Mineral Springs itself delivered the warehouse receipts to appellant bank as a pledge for Thomason’s debt, then the Bank of Mineral Springs, or its successor, the State Bank Commissioner, had the right to redeem the pledge. On the other hand, if the Bank of Mineral Springs, even though it held the warehouse receipts as a pledge for Thomason’s debt, surrendered possession of the receipts to Thomason for any purpose, it lost the pledge, and has no right to redeem, for retention of possession of pledged chattels is essential to the preservation of the pledge. Lee Wilson & Co. v. Crittenden County B. & T. Co., 98 Ark. 379.

Counsel for appellee cite decisions of this court holding that the acceptance of a draft or indorsement of a note as collateral security makes the party primarily liable for the debt, and that the holder of the collateral, or pledge, is a trustee, and must account for the property. Key v. Fielding, 32 Ark. 56; City Electric Street Ry. Co. v. First National Bank, 65 Ark, 543. The principles announced in those cases have no controlling effect in the present case, unless the pledge to appellant was in fact made by the Bank of Mineral Springs. It is true that the Bank of Mineral Springs made itself primarily liable to appellant by the acceptance of the draft, but this did not confer upon the Bank of Mineral Springs the right to redeem the property from the pledgee. The right of subrogation is not involved, for appellee has not paid the whole of the debt. It merely claims the right now to pay the balance on the debt and redeem from the pledge, thus depriving appellant of the right to hold the security for other debts. The Bank of Mineral Springs waived this right by parting with possession of its pledge, according to substantial testimony adduced by appellant, and the rights and equities of the subsequent pledgee are superior.

For the error committed in giving a peremptory instruction, the judgment is reversed and the cause remanded for a new trial.


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    Willis v. State.
    Opinion delivered June 25, 1923.
    1. Homicide — assault with intent to kill — evidence.—In a prosecution for assault with intent to kill, evidence held sufficient to warrant a finding that defendant did not act in self-defense, and was guilty of assault with intent to kill.
    2. Homicide — assault with intent to kill — evidence.—In a prosecution for assault with intent to kill, evidence that the assaulted person had been warned not to come to the house where he was shot and that he was in the habit of carrying a pistol, was properly excluded when offered before any testimony tending to prove justification was introduced.
    3. Homicide — INSTRUCTION.—In a prosecution for assault with intent to kill, it was not error to refuse to charge that “the intent in this case is one of the most important ingredients of the offense,” as this element of the offense was no more important than the other essential elements.
    4. Homicide — refusal of instruction — harmless error. — Where, in a prosecution for assault with intent to kill, the court charged the jury as to aggravated assault, and the jury found accused guilty of assault with intent to kill, and fixed the penalty at more than the minimum, refusal of an instruction as to simple assault was not prejudicial,. even though warranted by the evidence.

      5. Homicide — Refusal of INSTRUCTION. — In prosecution for assault with intent to kill, defendant’s requested instruction which assumed that the assaulted person forced his way into the house where he was shot with intent to commit a felonious assault on defendant, was properly refused.
    6. Homicide — instruction as to justification by appearance of danger.- — In a prosecution for assault with intent to kill, an instruction that defendant was justified in acting in self-defense upon the appearance of imminent danger was properly refused where it failed to incorporate the idea of due caution and -circumspection.
    Appeal from Howard Circuit Court; B. E. I shell, Judge;
    affirmed.

      J. G. Sam and Ben Sain, for appellant.
    The court erred in not permitting appellant to show that Hutchinson, the injured party, had been warned to stay away from the Wallace home, where the shooting occurred, and also in not allowing the testimony that Hutchinson was in the habit of carrying a pistol. The court erred in modifying appellant’s requested instruction No. 2, and in giving same as amended. 115 Ark. 572; 34 Ark. 275; 49 Ark. 156; Bishop, Criminal Law, <§>§ 729-31, 735; 54 A.rk. 282; 91 Ark. 505. Also in refusing to give appellant’s requested instruction 4, defining simple assault. 102 Ark. 180; 109 Ark. 424. The court erred in refusing to give appellant’s requested instructions Nos. 13 and 14. 55' Ark. 606. Also in refusing to give 19. 82 Ark. 74.

      J. S. Utley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    No error was committed in refusing to permit the introduction of testimony which, if competent at all, certainly could not be introduced at the time it was offered. The refusal to give instructions defining a simple assault was not erroneous, the jury having found appellant guilty of assault with intent to kill. 74 Ark. 462. If instruction 13 was erroneous, it should have been corrected by specific objection. 66- Ark. 264; 73 Ark. 315; 74 Ark. 43; 110 Ark. 402. The court could well have rejected instruction 2, which, as requested, did not state the law correctly, and no error was committed in amending it. 67 Ark. 416; 92 Ark. 71; 86 Ark. 456; 62 Ark. 543; 140 Ark. 520. Appellant’s requested instruction No. 14 was properly- refused. The case of 55 Ark. 604, has no application to the facts of this case.
   McCulloch, C. J.

Appellant, Dave Willis, was indicted for the crime of assault with intent to kill by shooting Merle Hutchinson with a pistol. On the trial of the cause appellant was convicted of assault with intent to kill, and his punishment was fixed at five years in the penitentiary.

Hutchinson and his wife had separated, but were not divorced, and she was living at the home of her father, J.oe Wallace, where the shooting of Hutchinson by appellant occurred.

It is undisputed that appellant fired three shots at Hutchinson, all of which took effect in his body and there was further testimony on the part of the State that appellant fired three more shots. It is undisputed, also, that Hutchinson did not fire any shots at appellant, though the latter testified that Hutchinson had a pistol when he came into the room.

Hutchinson went to the house of Joe Wallace, and when he entered the house he found appellant there in the -same room with his (Hutchinson’s) wife, and the shooting occurred as soon as Hutchinson entered the room.

Hutchinson testified that on the night of the shooting he went to see his wife at the house of Joe Wallace, to deliver a letter which he had received for her, and that, before getting off his horse, he called out, and some one answered; that he went to the front door, found it locked, and, having seen and heard persons in the house, he walked into the open door, through the kitchen and dining room, into his wife’s room; that, as soon as he walked into the room, appellant began to fire at him, and that three shots took effect, one in his jaw, one in his left shoulder, and one in his leg. He testified that, after the first shot was fired, he ran to the door and tried to make his escape, and appellant kept shooting- at him; that appellant cursed him, and that after he had crawled under the bed appellant shot him the last time.

. Appellant testified in the case, giving an account of the shooting, and he claimed that Hutchinsqn forced Ms way into the room with a pistol in his hand, exclaiming, ‘ ‘ God damn you, I have got you just where I want you! ’ ’ and that he at once began shooting, and shot three times in rapid succession. He claimed that the pistol he had was a small automatic that he had picked up during the afternoon in his peanut house, when he got ready to leave home. Appellant does not claim that Hutchinson fired the pistol, or attempted to do so. Appellant testified that, at the time Hutchinson broke open the door and came into the room, he (appellant) was at the front door of the room, trying to make his escape.

Hutchinson’s wife also testified, at the instance of appellant, as did Joe Wallace and his wife. Their testimony tends to corroborate appellant in the claim that Hutchinson forced his way into the house, or at least into the room where appellant was standing. The testimony of these witnesses was' to the effect that' Hutchinson’s wife was living there with her father, and on the night in question she was engaged in teaching her child, when appellant came there to make a visit. She testified that she had had considerable trouble with Hutchinson and had attempted to keep him away, but that he had several times forced himself upon her, and had beaten her. She téstified that on the night in question Hutchinson first came to the front door and called out, and she told him to go away, that she did not want to see-him, and told him to leave and not come into the house, but that Hutchinson went around to the side entrance and forced his way into the room where appellant was.

The testimony warranted a submission to the jury of the question whether or not appellant acted in necessary self-defense, but there was sufficient testimony to warrant a finding that be was not acting in self-defense, but that be fired tbe shots at Hutchinson with the specific intent to kill, 'and without any justification. In other words, the testimony is sufficient to warrant the finding of the jury that appellant was guilty of assault with intent to kill.

The first assignment of error relates to the ruling of the court in refusing to permit appellant to prove by Hutchinson himself and by other witnesses that he had been warned by Wallace not to come to the house. This testimony was offered before there was any attempt to prove any facts in justification of the shooting by appellant, and the court refused to allow the testimony to be introduced at that time. Later, when the State introduced as a witness Joe Wallace, he was permitted to testify that he had notified Hutchinson not to come to the house. There was no error in refusing to admit the other testimony concerning the notice to Hutchinson. Until there had been some testimony introduced tending to show justification for the shooting, it was immaterial whether Hutchinson’s visit to the house was rightful or not. If he had subsequently offered such testimony, a different question would have been presented.

It is also contended that the court erred in refusing to permit appellant to prove by Hutchinson’s wife that he was in the habit of carrying a pistol. The court also refused to permit that, on the ground that no testimony had been introduced tending to show justification for the shooting, and that it was immaterial at that time. The court was also correct in that ruling.

Appellant later testified, in his own behalf, that when he fired the shot Hutchinson had forced his way into the room with a pistol in his hand. It is unnecessary to determine whether or not the testimony about the habit of Hutchinson with respect-to carrying a pistol was competent at that time, but it certainly was not competent at any prior stage of the trial.

There are numerous assignments of error with respect to the ruling's of the court in its charge to the jury, and in refusing to give instructions requested by appellant.

In several instructions the court told the jury that there must be a specific intent to kill in order to constitute the offense of assault with intent to kill. Appellant presented an instruction on that subject, and the court modified the first sentence, which reads as follows: “The intent in this case is one of the most important ingredients of the offense.” The court struck out that sentence, but gave the remainder of the instruction, which was correct in its terms, telling the jury that, in order to convict of that offense, they must believe beyond a reasonable doubt that at the time of the attack appellant “had malice in his heart and he had a specific intent .in his mind at that time to take the life of the witness, Merle Hutchinson.” The instruction was complete after striking out the first sentence, and there was no prejudice in the ruling of the court; however, the sentence itself was inaccurate in stating that the “intent in this case is one of the most important ingredients of the offense.” This element of the offense is no more important than the other essential elements, and it was not proper to tell the jury so.

It is contended that the court erred in refusing to give appellant’s instruction No. 4, which defined the offense of simple assault. The court gave appellant’s instruction No. 3, which defined aggravated assault, and we think there was ho error in refusing the fourth instruction. The question of simple assault was net involved in the case, and, even if there was any testimony to support such an instruction, the refusal to give it was harmless, for the reason that the court gave an instruction on the next highest offense, aggravated assault, and the jury disregarded that and found appellant guilty of a still higher offense. Moreover, the jury not only found appellant guilty of the highest offense under the indictment, but fixed the penalty at more than the minimum. There was certainly no error therefore in refusing to give an instruction on simple assault, and there was no prejudice in refusing to give an instruction on simple assault, even if there had been evidence to warrant it.

Finally, it is contended that the court erred in refusing to give instruction No. 14, requested by appellant, which reads as follows:

“The court instructs the jury that, if you believe from the evidence that the defendant, Dave Willis, was a welcome visitor at the home of Joe Wallace, and that the witness Merle Hutchinson was not, and that he forced his way into the home of Joe Wallace, against his will and repeated warnings, with the intent to commit a felony, which in this case would be a felonious assault upon the person of Dave Willis, and that there was imminent danger of such design being carried into effect, and that the defendant shot the witness, Merle Hutchinson, to prevent such an act, then, under the law, the defendant would be justified in shooting the witness, Merle Hutchinson, even though the danger was unreal.”

This instruction is erroneous for at least two reasons, and it is unnecessary to further analyze the instruction to discover whether it is in other respects correct. In the first place, it assumed that if Hutchinson went to the home of Joe Wallace and forced his way into the house it was for the purpose of committing a felonious assault upon appellant. Even if he forced his way into the house, the jury might have found from the testimony that it was for the purpose of assaulting his wife or some other person. In the next place, the instruction is erroneous because it deals with the question of appellant acting on the appearance of danger, and fails to incorporate the idea of his acting upon due caution and circumspection.

There are other assignments. of error in regard to the rulings of the court on instructions, hut we do not deem them of sufficient importance to discuss.

Finding no error in the record, the judgment is affirmed.


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    Grayson-McLeod Lumber Company v. Duke.
    Opinion delivered June 25, 1923.
    1. Deeds — after-acquired title. — An after-acquired title, under Crawford & Moses’ Dig., § 1498, inures to the benefit of the grantee and all subsequent grantees.
    2. Mines and minerals — adverse possession. — Adverse occupancy of the surface -of land does not put the statute of limitations into operation as against the retained mineral rights of a prior grantor.
    3. Adverse possession — after-acquired title of grantor. — A subsequent grantee acquiring title by virtue of an after-acquired title of his immediate grantor takes with notice of such title and is presumed to hold under it unless he shows adverse occupancy independent of that chain of title.
    Appeal from Pike Chancery Court; James D. Shaver, Chancellor;
    reversed.

      W. V. Tompkins, D. L. MoRae and Chas. H. Tomp-kms, for appellant.
    The authorities uniformly hold that there may be a severance of the mineral estate from the estate in the land, which may be effected by a reservation in the conveyance .of the land. 18 R. C. L. Mines, §§ 83-5; C. & M. ■ Digest, § 9856, recognizes it; 1 Thornton, Oil and Gas, § 342; 267 Fed. 513. This the necessary effect of decision in 103 Ark. 175. The severance was effected by the reservation in the deed, and possession by appellee and his grantors of the surface of the lands thereafter was not adverse to the owner of the mineral rights, whose interest was not lost by non-user. 215 S. W. (Ky.) 81, 13 A. L. R,, 369, and note; 74 Ohio Stal 295, 78 N. E. 433; Ami. Cas. 1912-D, 1196; 35 Am. Dec. (Mass.) 305; (Okla.) L. R. A. 1918-A, 487-491; 39 L. R. A. (Term.) 249; 1 Thornton, Oil and Gas, § 336. Payment of taxes by the owner of the surface could not affect an adverse holding of the mineral rights any more than an actual holding of the surface would do so. The reservation in appellant’s recorded deed was notice to all subsequent grantees. C. & M. Digest, 1536. Appellant was not, however, chargeable with deeds made without reservation by its grantee and successors in title. 99 Ark. 446; 1912-D Ann. Cas., 1198. The confirmation proceeding, C. & M. Digest, § 8368, with payment of taxes for 7 years, was not an adverse proceeding. C. & M. Digest, § 8371; 140 Ark. 367; 87 Ark. 494; C. & M. Digest, 8370. Payment of taxes under the statute is effective only when the lands are unimproved and uninclosed. 132 Ark. 14. Non-user is associated with and akin to laches, but title is not invested by laches, and laches cannot be pleaded against the legal title set up by appellant. 94 Ark. 127; 88 Ark. 404. Reservation not contrary to public policy. 191 U. S. 497; 171 IT. S. 655; 176 U. S. 505; 40 Ark. 261; 74 N. J. Eq. 457. Louisiana is not a common-law State, and the decision in 91 So. (La.) 207 should have no weight in determining a question of public policy in this State.

      W. T. Kidd and T. W. Rountree, for appellee.
    Appellee had a right to have his title confirmed and the reservation of the oil and gas mineral rights canceled as a cloud on his title to lands of which he had been in actual possession and paying taxes thereon for 17 years. C. & M. Digest, § 6942. The statute, when applicable in equity, is as binding as at law. 47 Ark. 25. A vendor’s lien reserved in the face of the deed is barred when the debt is barred by limitation. 53 Ark. 367. 43 Ark. 464. Seven years’ adverse possession bars the action to enforce the claim of the owner against the land or to enjoin a railroad company from using it until just compensation is made. 51 Ark. 271. Appellee and those under whom he claims have been in actual adverse possession of the lands for 17 years, and the warranty deeds given by Key, appellant’s grantee, and subsequent grantors did not contain the reservation, and were recorded, and notice to appellant. C. & M. Digest, § 1536. 99 Ark. 446, cited by appellant, bas no application to the facts of this case. Land includes not only the soil but everything above and below the surface, whether attached by nature or the hand of man. 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889; 225 Mo. 414, 125 S. W. 486. Coal and minerals in place, oil and natural gas. 59 Atl. 991; 44 S. E. 533. 86 S. W. 740; 98 Tex 597; 60 L. E. A. 986; 82 Pac. 317; 147 Cal. 659. Title to wild or unimproved land can be confirmed and title granted by proceeding under the statute. C. & M. Digest, §§ 8362, 8363. Payment of taxes under color of title for 7 years constitutes prima facie title. C. & M. Digest, § 8368. Prima facie title. 124 N. W. 853; 94'S. W. 869; 73 Atl. 827; 197 Mo. 319; 152 Fed. 192; 12 L. E. A. 199. Appellee and his grantors have been in the continuous and peaceable possession of, and paying taxes on, the lands for more than 7 years. Appellant’s claim is barred by laches. 3 Bro. C. C. 640; 148 IT. S. 370; 75 Ark. 312; 110 Ark. 24; 105 Ark. 663; 101 Ark. 230; 83 Ark. 385; 103 Ark. 251, 58; 81 Ark. 296; 95 Ark. 178. Reservation void as against public policy. 66 Ark. 190; 19 Ark. 16; 75 Ark. 40.
   McCulloch, C. J.

The principal question involved in this case is the same as that decided in the case of Bodcaw Lumber Co. v. Goode, ante, p. 48, concerning the separate sale and conveyance of land excepting mineral rights. There is, however, in the present case an additional question to be decided with reference to the effect of the statute of limitations in bar of excepted mineral rights.

Appellant owned the land involved, and conveyed it on April 1,1905, by warranty deed, to one Key, the deed containing in the granting clause an exception in the following language:

“Reserving, however, all coal, oil and mineral deposits in and upon said lands, and the right of said party of the first part, its successors and assigns, at any and all times to enter on said lands and to mine and remove any and all coal, oil and mineral deposits found thereon or thereunder, without .any claims for damages by the party of the second part, his heirs or assigns.”

Key conveyed to one Stark, by warranty deed dated January 23, 1904, and appellee holds under mesne conveyances, the deed from his immediate grantor having been executed to him in the year 1915, there being no exception of mineral rights in any of the deeds subsequent to that of appellant to Key.

This action was instituted by appellee against appellant in the chancery court on July 7, 1922, to cancel the exception in the deed from appellant Key and to quiet his title as against any rights asserted under the exception. Appellee pleaded the bar of the statute of limitations as against the assertion of those rights, and the chancery court decided the case in his favor, giving him the relief prayed for in the complaint.

The cause was heard on an agreed statement of facts to the effect that neither party had taken any steps to develop minerals, that appellant had “exercised no acts of ownership, paid no taxes” since the execution of said deed to Key, and that “the possession of appellee and those under whom he holds has been continuous and peaceable, and that the land had been under fence and in cultivation for more than seven years, and that said possession would be adverse to appellant but for the reservation in said deed.”

The additional question in this case relates to the fact that Key conveyed to Stark, appellee’s remote grantor, about a year prior to the deed of appellant to Key. No explanation appears either in the pleadings or proof why Key conveyed to Stark before he received his deed from appellant. Nor is there any showing that either Key or Stark claimed any title independent of the conveyance from, appellant. There being no proof of any independent claim, tbe presumption must be indulged that Key and all tbe subsequent grantees beld under tbe title conveyed by appellant and in subordination thereto, unless it be shown that Stark held adversely under an independent claim prior to the deed of Key to him. Key’s after-acquired title under the deed from appellant inured to the benefit of Stark and all subsequent grantees, by virtue of the statute. Crawford and Moses’ Digest, § 1498.

It follow® therefore that adverse occupancy of the surface of the land did not put the statute of limitations into operation as against the retained mineral rights of appellant. Bodcaw Lumber Co. v. Goode, supra.

The conveyance from appellant to Key was, by operation of the statute, in the line of appellee’s title, and he was bound to take notice of it, notwithstanding the fact that it was executed prior to the deed from Key to Stark. Appellee had no other chain of title, and he is presumed to have held under it, unless he shows adverse occupancy independent of that chain of title.

We find one authority holding that “if the occupant of the surface claims under a deed which purports to convey a complete title to the entire property, his possession should be characterized by the terms of the instrument under which he holds, and he should be deemed to be asserting dominion over the whole.” Crowe Coal & Min. Co. v. Atkinson, 85 Kas. 357, Ann. Cas. 1912-D 1196. But the other authorities are practically unanimous against this rule.

It follows that the decree in appellee’s favor is erroneous, and it is therefore reversed, and the cause is remanded, with directions to dismiss the complaint for want of equity.


author: 'Smith,, J.

text:
    Beattie v. McKinney.
    Opinion delivered June 25, 1923.
    1. Partition — possession op cotenant. — The rule that partition cannot be had of lands held adversely does not apply in a suit by a tenant in common against a eotenant.
    2. Trial — waiver op objection to jurisdiction op chancery.— Where an action at law for partition was by agreement transferred to equity, and the jurisdiction of the court was not questioned, a motion to dismiss for lack of jurisdiction in equity was properly refused.
    3. Partition — adverse possession op cotenant — burden op proof. —In a suit by an heir against a co-heir for partition of land descended from a common ancestor, defendant’s claim of ownership of the entire estate by a parol gift from such ancestor was an affirmative defense as to which he had the burden of proof by clear and satisfactory evidence.
    4. Tenancy in common — adverse possession. — The fact that a tenant in common of land listed it as his own and paid the taxes on it, sold timber, and caused timber to be deadened preparatory to cultivation, and built houses which he rented to tenants, did not constitute adverse possession as against his co-tenant, in the absence of any notice to the latter of the hostile character of the possession.
    5. Equity — laches.—The doctrine of laches is not applicable as against one claiming the legal title.
    Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      G. W. Norton, for appellant.
    The court erred in not dismissing suit for want of jurisdiction. It was for partition and the lands claimed to he held adversely. Great preponderance of the testimony shows a verbal gift of the lands to her son, Geo. A. C. Beattie, by the mother, and his assuming possession thereof in 1886, prior to execution of her will in 1887, and the chancellor’s finding is clearly against-the preponderance of the testimony. Appellants have had possession of and held adversely the lands since 1892.- 30 Ark. 598; 49 Ark. 266; 2 C. J. 67; IN. C. L. Adverse Possession, §§ 8 and 10; 99 N. W. (Wis.) 1027; 1 Am. & Eng. Enc. of Law, 827; 40 Ark. 243; 30 Ark. 655; 92 Ark. 321. Appellee’s claim is barred by laches.

      L. P. Berry and R. V. Wheeler, for appellee.
    The cause was transferred to equity and defenses cognizable in equity were set up, and the court had jurisdiction to dispose of all matters. 99 Ark. 84; 137 S. W. 552; 49 Ark. 75, 4 S. W. 167. The burden to show a parol gift of the lands to appellant was on him, and he failed to discharge it by the required clear and satisfactory evidence. 63 Ark. 100, 37 S. W. 302. The lands were owned in common, and appellant failed to show an adverse holding as against appellee cotenant. His possession was fitful and broken, lacked continuity, and the cases-cited are not applicable to the case made here.
   'Smith,, J.

Appellee was the plaintiff below, and for her cause of action alleged that she and the defendant were tenants in common of a tract of land there described. She alleged that she and her brother, Gr. A. C. Beattie, were the only children and heirs at law of their -father, Madison Beattie, and their mother, Martha Beat-tie, and that her brother, Gr. A. O. Beattie, died intestate, leaving his children, the defendants, as his sole heirs at law. She alleged her ownership of an undivided half interest in said lands, and that the defendants owned the other half, and she prayed that partition be made.

Defendants denied that plaintiff owned any interest in the land, and alleged the facts to be that Madison Beattie and his wife, Martha, were the owners of said lands as tenants by the entirety; that Madison Beattie died in 1885, and his wife took the whole title as surviving tenant, and that on the.day of..., 189 , the said Martha Beattie made a verbal gift of said lands to her son, Gr. A. C. Beattie, and placed him in possession thereof, and that he, claiming under such gift, and in reliance on it, entered upon said lands, cleared them, and made valuable improvements thereon. That plaintiff was advised of the gift, and permitted her brother to assume the burden of taxes and to im-piWe the same, and defendants pleaded both limitations and laches.

Mrs. McKinney, the appellee, testified that she knew her brother was paying the taxes in his own name, and that he had sold some timber, and had cleared a portion of the land, but she assumed he was doing so for their joint benefit, and in a conversation with her brother he told her that he knew she owned an undivided half interest in the land, and that if she would pay him one-half the cost of the improvements and the taxes they would divide the land, and that she intended to make this payment, but did not press the matter, as she had confidence in her brother, and that one of the conversations with him occurred in March or April, 1918, and later he called at her home in Virginia, where they both resided, and told her that he hoped she did not think he would try to hold individually property which they had inherited from their mother. She further testified that her brother’s health failed, and he died before the matter was adjusted, and that after the death of her* brother she discussed the matter with her nephew, the defendant, W. M. Beattie, who had charge of the lands of his father, and he told her the equities would be adjusted and the land divided, but he failed to take any action in the matter, and finally denied that she owned any interest in the land, whereupon she brought this suit.

Mrs. McKinney’s son, Chas. F. McKinney, a man thirty-six years old, substantially corroborated his m'other.

W. M. Beattie testified that he removed to Critten-den County, where the land is situated, in 1906, and had charge of his father’s Arkansas lands for sixteen years. That his grandfather died in 1885, and his grandmother in 1897, and his father in 1919. That his grandfather disposed of his estate by his will and devised to his son, Gr. A. C. Beattie, his lands in Arkansas, and after his grandfather’s death his grandmother gave the land in litigation to his father, and directed him to put the land on his tax list, and that his father did so, and commenced paying the taxes in the lifetime of Ms mother, and continued to do so until Ms death. According to this witness, Mrs. McKinney admitted to him that she had no interest in the lands, but she made a claim to an interest in them because her children insisted that she do so. W. M. Beat-tie was substantially corroborated by'his brother and his sister.

Much testimony was taken on the extent and value of the improvements made by Beattie, and the cause was referred to a master to state an account, but, as no objection is now urged to the master’s finding, we make no statement of the facts on those issues.

The decree recites that “at the conclusion of the reading of the testimony the defendants moved the court to dismiss the cause for the want of jurisdiction, which motion was by the court overruled.” The ground of the motion was that the suit was one for partition, whereas the possession of the defendants was adverse to the plaintiff.

Except on the question of taxes, etc., the finding was in favor of the plaintiff, and the defendants have appealed.

For the reversal of the judgment it is first insisted that the court was without jurisdiction to order partition of the land, for the reason that it was adversely held by the defendants at the time of the institution of the suit for partition.

The suit was originally brought at law, and the defendants demurred upon the ground that “it is shown in the complaint that defendants were in actual possession.” The court sustained the demurrer, and granted time to the plaintiff to amend her complaint, and the cause was then, by agreement of the parties, transferred to the chancery court.

It is, of course, well settled that partition cannot be had of lands which are held adversely. Hill v. Cherokee Construction Co., 99 Ark. 84, and cases there cited. But we think that doctrine has no application here. The ownership of the land by Martha Beattie is admitted, and the plaintiff and her brother were her only heirs. Presumptively, the brother and sister each inherited an undivided half interest from their mother; there was no question about that. The question in this case is whether one of the cotenants acquired the whole title. The answer alleged this to be a fact, and this was the question developed by the testimony and tried by the court. The answer alleged parol gift, among other defenses, and also the defense' of laches, and this latter defense is here strongly insisted upon. The plaintiff sought to recover upon her legal title; the defendants resisted recovery by denying plaintiff’s title, and by setting up, as one of their defenses, a defense cognizable only in equity, and the jurisdiction of the court does not appear to have been questioned until the case was submitted to the court. There was no motion that the cause be transferred to law, which should have been done, had that request been made; but the motion was that the cause be dismissed. Sledge-Norfleet Co. v. Mathins, 154 Ark. 509. Under these circumstances we think the motion to dismiss was properly overruled, and that the court properly proceeded to try the issues raised by the pleadings and the testimony, which were the question of the parol gift and that of limitations and laches.

The next question is whether Gr. A. C. Beattie acquired title by a parol gift from his mother. We have set out the substance of the testimony of respective parties on that issue, and it appears to be of about equal weight. Counsel for appellants say that, the testimony being of about equal weight, the defendants should prevail, as the burden of proof is on the plaintiff. .But the burden of proof is not upon the plaintiff to show there was no gift to G. A. C. Beattie by his mother. This was an affirmative defense, and the burden of establishing it was upon the party who pleaded it, and this burden could not be discharged by a mere preponderance of the evidence. The existence of a parol gift of land is one of those ■ tilings which, cannot be established by a bare preponderance of the evidence. It is required that such a gift be established by evidence that is clear and satisfactory, and the evidence in this case does not meet that requirement. Meigs v. Morris, 63 Ark. 100; Young v. Crawford, 82 Ark. 33.

Did the defendants acquire the title by adverse possession, and is the plaintiff barred by laches? The testimony shows that Gr. A. C; Beattie placed the land on his separate tax lists and paid the taxes in his own name until this litigation was begun. It also appears that he sold the timber thereon in 1909. It does not appear when the timber was removed, but in 1911 Gr. A. C. Beattie caused the timber to be deadened as a preparatory step to cultivation of the land. There was no other act of possession by Gr. A. C. Beattie until 1916, at which time he built some houses on the land, and gave leave to several.- negro tenants, who entered upon the land and proceeded to clear and cultivate it. This suit was brought in October, 1920.

It will be remembered that G. A. C. Beattie and Mrs. McKinney were tenants in common, and, as such, they each had the right to the possession of the land, and there is a presumption that the possession of one cotenant is in subordination to the cotenancy. One tenant in common might acquire the title of his cotenant by adverse possession, but to do so it is not sufficient that he occupy the land exclusively, and that he intends his possession to be adverse. The ousted tenant must have notice that the holding is adverse, or the hostile character of the possession must be so openly manifest that notice will be imputed. Jackson v. Cole, 146 Ark. 565, and cases cited.

Having concluded that Gr. A. C. Beattie did not acquire the title by a parol gift from his mother, it remains to be determined, under the tests stated, whether title was acquired by adverse possession. It is shown that Madison Beattie devised his Arkansas lands to his son, Gr. A. C. Beattie, and lie gave to liis daughter, Mrs. McKinney, property located elsewhere. It also appears that Madison Beattie and his wife owned the land in litigation as tenants by the entirety, and that the wife survived the husband, and it is argued that the gift from Mrs. Beattie to her son merely effectuated the intention of her husband to give the son the Arkansas lands which his father had owned. But this is a mere deduction from the circumstances stated, there being no positive testimony that Mrs. Beattie had any such intentions, except the testimony of W. M. Beattie that his father had told him that the land was a gift from his mother, which testimony was, of course, incompetent. The fact is that Mrs. Beattie acquired the title to this land as surviving tenant, and owned it as completely as ,she did a large body of other lands which she owned in Crittenden County. Mrs. Beattie died testate, and by her will divided her other lands equally between her son and her daughter. This will was executed in 1887, and Mrs. Beattie died in 1897, but she permitted both her son and her' daughter to assume control of the lands devised to them respectively, and they thereafter paid taxes individually on separate tax lists. They had the same agent in this State, who paid taxes for them both, but their lists were separate, and the lands in question never appeared on Mrs. McKinney’s tax lists.

It is shown that in 1911 Gr. A. C. Beattie caused the timber to be deadened, but it was not until 1916 that he put tenants in possession to clear and cultivate the land, and during all this time Mrs. McKinney resided in Virginia, as did also her brother, both of whom owned large tracts of land in Crittenden County, and, while she knew he was paying taxes in his individual name, she testified that she did not know he was doing so under a claim of individual ownership. But, as we have said, the presumption is that Gr. A. C. Beattie’s acts of ownership were those of a tenant in common, and we think they were not so inconsistent with that relationship as to charge Mrs. McKinney with notice that her joint ownership was being disputed prior to 1916.

About seven acres of this land were in cultivation prior to 1909, but, except this seven acres, there was no actual possession prior to 1916, and the finding of the court was that these seven acres were not adversely occupied; or, if so, that notice thereof had not been brought home to appellee, and that the title had not been acquired even to these seven acres.

Appellants insist that the adverse possession should be computed from 1911, when the timber was deadened, and not from 1916, when tenants were put in possession; but we do not think so. If the deadening of the timber be treated as an entry, then the lapse of five years thereafter before the tenants were put on the land must be treated as a break in the continuity of possession. Scott v. Mills, 49 Ark. 266; John Henry Shoe Company v. Williamson, 64 Ark. 100; Wagner v. Head, 94 Ark. 490; Briggs v. Jones, 132 Ark. 455.

Upon the question of laches, it may be said that the plaintiff is not seeking equitable relief, but only to enforce a legal title, .and the doctrine of laches does not apply. Davis v. Neal, 100 Ark. 399; McFarlane v. Grober, 70 Ark. 371; Rowland v. McGuire, 67 Ark. 320; Berg v. Johnson, 139 Ark. 243.

The decree appears to be correct, and it is affirmed.


author: Hart, J.

text:
    Harrison v. Campbell.
    Opinion delivered July 2, 1923.
    1. Municipal CORPORATIONS — passage of ordinances at special meetings. — An ordinance passed at a special meeting of the council of an incorporated town is valid if all members of the council were voluntarily present at the meeting and participated in the proceedings.
    2. Municipal corporations — place of meeting of council.— Where there was no regular meeting place of the town council provided by ordinance, and it was the custom of the council for the most part to meet at the mayor’s office, a special meeting- held at such office, at which the ordinance in controversy was passed, was not held at an irregular place.
    3. Municipal corporations — place of meeting of council.— When all the members of a town council were present' at a certain meeting and participated in the proceedings, ordinances passed at such meeting cannot be attacked on the ground that the meeting was held at an irregular place.
    4. Municipal corporations — powers of councils. — The common councils of cities and incorporated towns are creatures of the statutes, which must be looked to in order to ascertain the extent or limit of their powers.
    5. Municipal corporations — right to vote in town council.— Under Crawford & Moses’ Dig., § 7671, providing that the corporate authority of incorporated towns shall vest in a mayor, a recorder and five aldermen, who shall constitute the council, the mayor and recorder are as much members of the council and entitled to vote on the passage of ordinances as are the aldermen.
    Appeal from Baxter Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Allyn Smith and Owen Kendrick, for appellants.
    The appellants, as citizens and taxpayers, had the right to maintain- the action. Section 13, art. 16, Constitution ; C. & M. Digest, § 6514; 64 Ark. 489. As councilmen, they had a right to maintain it. 69 Ark. 606. The meeting at which ordinances 77 and 78 were passed was a special meeting upon verbal notice, and the ordinances passed thereat are void. 64 Ark. 489; 84 Ark. 540. The meeting at which said ordinances were passed was not held in the town hall, rendering same void. 92 S. W. 564. Under the law a recorder is not entitled to compensation, and he could not draw a salary raised to $25 a year after his election. C. & M. Digest, 7675-7676. Ordinance 78 relates to more than one subject, § 7502, C. & M. Digest, and authorizes mayor to fill vacancy in marshal’s office, contrary to statute. C. & M. Digest, § 7677. Mayor and recorder have no right to vote as members of the council. Three aldermen must vote for to pass an ordinance. Quorum. C. & M. Digest, §§ 7671-74, 7502. ■ A concurrence of four aldermen is necessary to making of contracts and appointments. Sections 7528, 7518, C. & M. Digest. The mayor and recorder have no right to vote with the aldermen. 49 S. W. (Ky.) 456; 37 L. R. A. (Mont.) 205; 61 S. W. (Ky.) 15; 35 Kan. 36; 83 Miss. 95, 35 So. 337; 52 Ark. 541, 13 S. W. 130.

      McCaleb & MoCaleb, for appellees.
    Ordinances 77 and 78 are not invalidated by reason of being passed at a special meeting of the council. 118 Ark. 166. In this case all members of the council had notice, and all were present and voted. Both the mayor and recorder have the right to vote as members of the town council. O. & • M. Digest, 7671. MeQufdlin on Municipal Ordinances, 158; Dillon on Municipal Corporations, §§273, 309; 1 A. L. R. 498. The authorities cited for appellants do not show any right to injunctive relief. Council had right to provide salary for recorder. Meeks v. Texarkana, 50 Ark. 81. No allegation or proof that said salary is larger or smaller than comes within provisions of § 7521, C. & M. Digest.
   Hart, J.

Appellants brought this suit in equity against appellees to enjoin them from paying a salary to the recorder and marshal of the town of Cotter, and to enjoin two of the defendants from acting as mayor and recorder, respectively, of the town of Cotter.

Appellants are citizens and taxpayers of the town of Cotter. The basis of their suit is that the mayor and recorder of an incorporated town have no power to vote on the passage of ordinances, and also that the ordinances in question in this case, creating the office of city marshal and providing a salary for the recorder, were not legally passed.

The chancellor found the issues in favor of the ap-pellees, and dismissed the complaint of appellants for want of equity. The case is here on appeal.

An ordinance was passed by the town council of the incorporated town of 'Cotter providing for a "salary of $25 per year for tbe recorder. The ordinance came up for final passage at a special or called session of the common council, at which the mayor, the recorder, and all five of the aldermen were present. Four of them, including the mayor and the recorder, voted in favor of the passage of the ordinance, and three of the aldermen voted against it. The ordinance providing for the election of a town marshal and the election of the marshal was passed in the .same way. That is to say, the ordinance was passed at a called session at which all of the members of the common council were present and all of them voted. Four of them, including the mayor and the recorder, voted for the passage of the ordinance and the election of the city marshal, and three aldermen voted against it. The meetings were held at the office of the mayor, and that was the place where the council meetings were usually held. There was no ordinance providing for any special place for the common council to hold its meeting.

It is first earnestly insisted by counsel for appellants that the two ordinances in question are void because they were passed at a special meeting of the council. This contention, under the facts just stated, has been decided against appellants in the case of Mena v. Tomlinson Bros., 118 Ark. 166. In that case it was held that, when all the members of a town council are voluntarily present at a meeting and participate therein, it is a legal meeting for all purposes, in the absence of a statute to.the contrary. There is no statute in' this State invalidating such a meeting.

It is insisted that this holding in the case just cited is obiter dictum. We do not think so. While the decision might have been placed wholly on another ground, still that course was not pursued. A part of the reasoning of the court was that the meeting was fully attended by all the members of the council, and that they all participated in its Proceedings. This is in application of the maxim “illegality will not he presumed, but the contrary.” The object of the notice is that all the members of the city council may be present and participate in the discussion and transaction of the public business. If they are present and .all participate in the particular business transacted, the end of the law has been fully accomplished.

There is nothing- in the contention that the meeting was held at an irregular place. There was no regular meeting place provided by the town ordinance, and it was the custom of the city council to meet for the most part at the mayor’s office. Besides, the reasoning-referred to above applies with equal force here. All of the members were present and exercised their duties as councilmen in the passage of the ordinances. It seems clear to us that, when all the members of the council ■meet .and act as a body, they may at such meeting- transact any business within the powers conferred by law upon them.

Again, it is insisted that the mayor and recorder had no right to vote upon .the passage of the ordinances. The common councils of cities and incorporated towns are creatures of the statutes, and the statutes conferring the powers must be looked to to ascertain the extent or limit of such powers.

In this State the provisions with regard, to the members of the common council of cities and incorporated towns are different. Cotter is an incorporated town. Hence we must look to the statute relating to the common council of incorporated towns to find out who shall constitute members of the council.

Sec. 7671 of Crawford & Moses’ Digest defines the corporate authority of incorporated towns. It reads as follows: “The corporate authority of incorporated towns organized or to be organized for general purposes shall vest in one mayor, one recorder and five aldermen, who shall be qualified electors residing within the limits of the corporation, and shall hold their office for one year and until their successors are elected and qualified, and such, mayor, recorder and aldermen shall constitute the council of the incorporated .town, any five of whom shall he a quorum for the transaction of business.”

Thus it will he seen by its express terms that the section of the statute provides that the mayor, recorder and aldermen shall constitute the council. The mayor and the recorder are named as members of the council as much so as the aldermen. By force of .the statute they become members of the council, and are entitled to vote upon the passage of .all ordinances which come before the council for its action.

Having determined that the ordinances in question were legally passed at a special meeting, and that .the mayor and recorder are members of the council, the other questions argued by counsel for appellants pass out of the case.

Therefore the decree will be affirmed.