author: McCulloch, 0. J.

text:
    Gordon v. Camden Curb & Gutter District No. 1.
    Opinion delivered November 15, 1926.
    1. Municipal corporations — improvement districts — -liability.— The rule that improvement districts are not liable for damages from changes in the grade of streets is applicable to gutters and ' sidewalks, which are included in the generic term “street.”
    2. Municipal corporations — improvement districts — liability.— Improvement districts are not liable to an abutting property owner receiving personal injury while removing furniture and fixtures from a building flooded from the street, as such injury did not result directly from improper construction of the paving or curb and gutter.
    3. Municipal corporations — improvement districts — liability.— Improvement districts are not liable for negligence in failing to provide sufficient openings for flow of water and in selecting particular places where openings are to be made.
    4. Eminent domain- — property damaged for public use. — Where property is taken or damaged for public use, compensation from the public must be awarded; but where the damage results from the negligence of those who are acting for the public, there is no remedy for compensation except as against the wrongdoer.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Ilardy & Mad bin, for appellant.

      Gaibghan & Sifford, for appellee.
   McCulloch, 0. J.

Two separate improvement districts were formed in the city of Camden, one for the purpose of paving Adams Street, and the other for the purpose of constructing curb and gutter. Appellant is the owner of a lot in -the district, on which there is a two-story business building fronting on Adams Street, and each of the districts instituted an action in the chancery court of the -county to foreclose liens for delinquent taxes on property in the district, including the property of appellant, who appeared in each case and filed an answer, traversing the allegations of the complaint with respect to the right to recover delinquent assessments, and also filed a cross-complaint seeking to recover damages from each of the districts. All of the questions with respect to the recovery by the several districts of delinquent taxes have passed out of the case, but the court sustained a demurrer to the cross-complaint of appellant, and dismissed the same. The cases were tried together, and are presented here in the same brief.

The cross-complaint in each of -the cases is identical in language, and the material part is as follows:

“That the plaintiff, in constructing the curb and gutter on said street, carelessly and negligently selected the point in front of the said lot and place of business as the lowest level for the curb and gutter on said street; that south of his said lot and place of business is' a gradual elevation to where the Iron Mountain Bailroad crosses said street, and the surface of the street at said railroad crossing is eight feet higher than the surface of the street in front of his said lot, house and place of business; and that Adams Street north of his said lot, house and place of business has a gradual elevation for a distance of two hundred yards to Jackson Street, and that the surface of’Adams Street at the intersection of Jackson Street is twenty-five feet higher than the surface of the pavement in front of the place where his said lot, house and place of business are situated, and that, by and through the careless, negligent and wrongful manner in which said curb and gutter was constructed, without necessary openings or outlet for drainage of water, when a rain occurs the water flows in such volume and with such rapidity down said street from the-intersection of said Jackson Street, and in such volume from the crossing of the Iron Mountain Railroad, as to overflow said lot, house and place of business, and that by reason thereof he has suffered great injury to his property and business, to his great damage in the sum of two thousand dollars. That, in the year 1923, said plaintiff, without the consent of the said defendant, had Adams Street paved and a curb put down on either side of said street in front of his said building occupied by him at that time as a place of business, and is still occupied’ by him.
“Defendant further states that said injury to his property, as above stated, is continuing damage, and he will continue to suffer damage to his property and business so long as said pavement, curb and gutter remain in its present condition. That by reason of the careless and negligent manner in the construction of said curb and gutters on said street, causing his house and place of business to overflow as stated, while he was engaged in removing his furniture and fixtures in said building, in order to try and save and protect his stock of merchandise from loss or damage, he sustained an injury to his person by becoming ruptured; that from said injury he has suffered great pain, and that he has been partially disabled to do his work that he could do before said injury; and, by and through the negligence of the said plaintiff, as above stated, he has been damaged in the sum of twenty-five hundred dollars.”

All reference in the cross-complaint to the grade of the pavement and of the curb and gutter comes within the decision of this court in Eickhoff v. Street Improvement District, 120 Ark. 212, 179 S. W. 367, holding that improvement districts are not liable for damages resulting to property owners from changes in the grade of a street. The court held in that case that the same rule applied to gutters and sidewalks, for the reason that they are included in the generic term “street.”

Of course, there could be no liability of either of the districts under the charge in the cross-complaint that appellant sustained personal injuries in removing his personal property out of the building when it was flooded with water, as that injury could not be said to have directly resulted from improper construction of the paving or the curb and gutter.

The only other ground for recovery set forth in the complaint-is that the districts were guilty of negligence in failing to provide sufficient openings for the flow of water, and in selecting the particular places where the openings were to be made. These allegations constitute merely charges of negligence on the part of the districts, and this court has held that an improvement district is not liable in damages on that account. Moreland v. Board of Imp. of Sewer District, 94 Ark. 380, 127 S. W. 469, 21 Ann. Cas. 957; Wood v. Drainage District, 110 Ark. 416, 161 S. W. 1057.

It is contended that, upon the facts stated in the complaint, the districts are liable on the ground that the property was “damaged for public use” within the meaning of the Constitution (art. 2, § 22), and that compensation for this damage must be awarded. The allegations are sufficient to show no more than that the damage resulted from negligence, and not for public use. The distinction is that, where property is taken or damaged for public use, compensation from the public must be awarded; but, where the damage results from the negligence of those who are acting for the public, there is no remedy for compensation except as against the wrongdoer. This is the doctrine of our decisions, and they apply with force to the facts of this case as set forth in the cross-complaint. No cause of action was stated against either of the districts, and the court properly sustained the demurrer.

Affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    People's Life Insurance Company v. Britt.
    Opinion delivered November 15, 1926..
    1. Appeal and error — review-—direction of verdict. — Where both parties moved for a directed verdict, the only question for deci- • sion is whether the testimony was sufficient to sustain the court’s findings of fact, and whether the testimony was sufficient to sustain the court’s action.
    2. Insurance — question for jury. — Evidence, in action on a life insurance policy, held sufficient to sustain findings 'that general agents of the insurer were authorized to accept notes fqr the first . life insurance premium, and that the policy was not invalidated though the notes were never paid.
    3. Insurance — payment of premium — burden of proof. — Where the plaintiff in a suit on a policy of life insurance "alleged that, at the time of insured’s death, the premiums were paid, which defendant denied, the burden of proof was on the plaintiff.
    4. Insurance — payment of premium — sufficiency of proof.— Plaintiff’s burden of proof, in a suit on a life insurance policy, that the first year’s premium was paid, was sufficiently met by proof of issuance of policy, of payment of part of the premium in cash by the insured, and of the execution of a note for the balance thereof as net premium to insurer’s general agents.
    5. Insurance — authority of general agents. — General agents of life insurance companies are authorized generally to transact their business, collect premiums, accept notes to themselves in lieu of cash, and to bind the insurer thereby, and, when a note is accepted and cash payment waived by general agents, the insurer is bound, even though the general agents never pay it.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keek, Judge;
    affirmed.

      Little, Buck <& Lasley, for appellant.

      G. W. Barham, for appellee.
   Wood, J.

This is an action by M. R. Britt, administrator of the estate of W. A. Carroll, against the People's Life Insurance Company to recover on a life insurance policy issued December 14, 1923, by the Century Life Insurance Company of Indianapolis, Indiana, insuring the life of W.' A. Carroll in the sum of $2,000. The plaintiff set up the policy, and alleged that the assured died on July 13,1924; that the defendant succeeded to the rights and liabilities of the Century' Life Insurance Company, and that the terms of the policy had been complied with on the part of the assured and the plaintiff. The defendant denied that it succeeded the Century Life Insurance Company, and denied that it was liable under the terms of the policy. It alleged that the policy had been forfeited and canceled for the nonpayment of-the first premium. The facts which the testimony of the plaintiff tended to prove are substantially as follows:

W. A. Carroll died on July 13,1924, and the plaintiff was duly appointed administrator of his estate. He held the life insurance policy in controversy issued by the Century Life Insurance Company of Indianapolis, Indiana, which company’s business the defendant took over. Lester & Lester of Memphis, Tennessee, were general agents for the Century Life Insurance Company. T. C. Carroll was its local soliciting agent under them at Blytheville, Arkansas. The policy was issued December 14, 1923, sent to Lester & Lester, who, on December 21,1923, inclosed the same to T. C. Carroll for delivery and settlement. They stated in their letter that the premium was $70.84, composed of a commission of $46.05 and “net” $24.79. The letter expressed the hope that the local agent would be able to get a settlement in cash of at least enough to cover the “net” to the company. The assured paid all in cash except $24.79, for which amount he executed his note payable to Lester & Lester at the First National Bank of Blytheville, Arkansas, with interest at the rate of six per cent, per annum from maturity until paid. The note was dated January 15,1924, and was due April 4, 1924. The policy was delivered and was in the hands of the assured at the time of his death on July 13, 1924. Proof of death was made, and payment on the policy was refused. The policy was introduced in evidence, and it contained, among other provisions, the following:

“Payment of Premiums: All premiums are due and payable annually in advance at the home office, of the company in the city of Indianapolis, Indiana, or to a designated collector, on or before date due, but, in any case, only in exchange for the company’s receipt therefor, signed hy the president or secretary of the company and countersigned by such collector. Upon default in payment of any premium, or any note or interest thereon, whether such note be given for the first or subsequent premium, this policy shall be null and void and all premiums forfeited to the company, except as herein provided. After the first year, premiums may be paid in semi-annual or quarterly installments in advance at the company’s rates therefor, but, except as herein provided, the payment of any premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable.”
“ Reinstatement: At any time after any default in premium payment, upon written application by the insured and presentation at the home office of evidence of insurability satisfactory to the company, this policy, unless previously surrendered for its cash value, may be reinstated upon the payment of arrears of premiums, with compound interest thereon at the rate of five per cent, per annum, and the payment or reinstatement of whatever indebtedness to the company existed hereon at the date of such default, with interest from that date.”
• “Policy in Force: No obligation is assumed by this company upon this policy until the first premium hereon has been actually paid during the lifetime and good health of the insured.”

The local soliciting agent testified that it was the custom for him to deliver and collect the premium and make the settlement. He was to get as much money as possible and take a note for the balance, payable in sixty or ninety days, and that was done in this case. This witness further testified that he received the following letter from Lester & Lester, at Memphis, Tennessee:

“February 12, 1924.
“My dear Mr. Carroll:
“Hoped to hear from you with reference to the two policies that you promised you would either get the policy or the settlement on same. The company is demanding either the policy or the money, and I had hoped that, when the weather got better, you would be able to get in touch with these parties and clean up the past due business. You remember, I accepted the notes of your brother’s ‘nets’ in order to help you along. Now, Mr. Carroll, be candid with me, and if you feel that they will not be able to pay these notes, when they are due, I positively will not be able to advance the money to the company as they demand, unless I have the assurance that I will get the money back. The company has sent me your policy, and, owing to the condition of your account and you having gone with another company, I feel that you should send me the ‘net’ on your policy, and I will gladly forward same to you, or send me an indorsed note that I can handle. Your net amounts to $15. If you will send me a check for $15, or authorize me to draw on you for the amount, I will gladly forward the policy. Hoping to hear from you with some good news by return mail.
“Yours very truly,
“Lester & Lester,
“By E. C. Lester.”

C. T. Tuck testified that he was the secretary and, manager of the Century Life Insurance Company at the time the company issued the policy in controversy. Lester & Lester accepted the note of W. A. Carroll as evidence of the deferred part payment of the premium. No payment whatever was made to the company on this ’ premium. Witness did not understand that the note was accepted as payment of the premium, but only as evidence of payment to be made in future. The company would expect the assured to pay the note if he wanted his policy to continue in force. The annual premium on this’policy was not paid to the life insurance company or any one else for them. The witness was asked why the company issued and delivered the policy to Carroll without such payment having been made, and answered, “because, under the terms of the policy, the same was void if the first premium was not paid by the insured.” •This witness further stated that the policy had been lapsed and canceled by nonpayment of the premium before the business was actually transferred to the defendant company. The policy was canceled in this way: the policy record was kept on card system. When a policy was canceled, the card was taken from the files of policies in force and placed in the file of cards of. lapsed policies. The card for this policy was taken from our file and placed in canceled and lapsed policy files prior to April 4, J924, and notice given by letter to the insured on that date to that effect, and urging the assured to reinstate the same. The policy in controversy was not taken over by the defendant, for the reason that it had forfeited for the nonpayment of the first premium and had been canceled by the Century Company on its books prior to the purchase of the assets of that company by the defendant company. There was in evidence a letter 'dated September 8, 1924, and addressed to W. A. Carroll, Blytheville, Arkansas, as follows:

“Dear sir:
“On August 28 I mailed you a letter with reference to a note given by you to Lester & Lester, insurance agents. Amount $24.79, with interest of 6 per cent, from January 15. No further indulgence will be given you in this matter, as you have not even shown us the courtesy of a reply to our courteous letter, and I will expect a remittance not later than five days from the date hereof.
“Yours truly,.
“Universal Detective Bureau,
“By W. D. Carpenter.”

There was also introduced in evidence a letter dated September 11, 1924, as follows:

“Memphis, Tennessee, September 11, 1924. “People’s Life Insurance Company,
Frankfort, Ind.
“Attention !Mr. C. T. Tuck.
“G-entlemen: Yours of the 5th received, also copy of letter with reference to Wm. A. Carroll’s policy. This man, W. A. Cairoll, was written by T. C. Carroll, his - brother, and he mailed me a note for the net, $24.79, which was due April 1, 1924. T. C. Carroll failed in business at Blytheville, and, after writing his brother and several others, mailed me a batch of notes for the nets and skipped the country without paying anything.
“I am inclosing you the note which was mailed to this office, and I have been unable to get any satisfaction from W. A. Carroll or C. T. Carroll, his brother, that wrote it. I am confident that he never paid a cent to his brother. If he did, his brother has never paid a cent to this office. You remember, I returned T. C. Carroll his policy for cancellation.
“I hope there will be no liability on this policy, because it was certainly an outrage the way this fellow has acted. If there is any other information that I can get to evade the payment of this claim, I shall do my utmost in the matter. It might be well for you not to mention to the lawyer about this note, as it was only mailed to me after I had mailed the policy to him for delivery, collection and settlement, and immediately after receiving this note covering the net, as per his contract, he skipped the country. I see now where a bond is necessary on these agents, and I shall insist on a bond from every one from now on.
“Very truly, yours,
“Lester & Lester,
“By E. C. Lester.”

These letters were introduced by stipulation of the parties, to the effect that W. D. Carpenter and the Universal Detective Bureau were acting under the direction of Lester & Lester, insurance agents, and that the letter was written for the purpose of attempting to collect a note signed by Wm. A. Carroll; that the note was executed and delivered to Lester & Lester in part payment of an insurance premium growing out of and due on a policy of life insurance, the application for which was taken by Lester & Lester and the policy was issued on the life of Wm. A. Carroll; that W. A. Carroll mentioned in the letter of September 8 is the same as Wm. Abner Carroll, tbe assured. C. T. Tuck testified that the note of the assured which witness sent to Lester & Lester was not returned to him, nor was a return of the policy demanded, because they could not locate the insured.

Upon the above testimony the plaintiff and the defendant each asked a directed verdict in their favor. The court thereupon discharged the jury, and the defendant asked the court to find certain facts and to make certain declarations of law and to enter a 'judgment in its favor. The court refused the defendant’s motion, and, on its own motion, found the facts as follows:

“The court finds that the deceased died within one year after the issuance of the policy sued on. The court further finds that the present defendant has taken over the business of the Century Life Insurance Company, and is liable upon all policies that the other life insurance company would be liable upon. The court finds that the first year’s premium in this case was paid unconditionally, and that the policy was_in force for the term of one year, and was in force at the time of the death of the deceased. The court finds that there was nothing on or about the note given that would indicate that it was a part payment of the policy; that the note was given to and accepted by Lester & Lester, and was not given to or accepted by the company; .that Lester & Lester and the soliciting agent had a right to take notes of this kind; that this note wag not an obligation to the company, but was an obligation to Lester & Lester, and therefore the company had no right to cancel the policy, and their effort to do so could have no effect upon the same. The policy was in full force and effect at the date of the death of the deceased, and the plaintiff in this case is entitled to recover the amount sued for. The court further finds that M. R. Britt was, at the time of the institution of this suit, and at the time of the trial of same, the duly appointed and acting administrator of the estate of William Abner Carroll, deceased.” And, on motion of the plaintiff, the court gave the following declaration of law: “Where general agents of a life insurance company are clothed with authority generally to transact the company’s business in the State, and to collect premiums and to accept notes to themselves in lieu of cash, the company looking to them instead of the policyholder for the cash, they are authorized to bind the company by accepting notes in lieu of cash; and, when they accept a note and waive cash payment, the company is bound by the act of such general agents, whether these general agents ever pay the company or not.” The court thereupon rendered a judgment in favor of the plaintiff, from which is this appeal.

The appellant and the appellee moved the court to take the case from the jury by each moving for a directed verdict in their favor. The only question therefore for decision is whether or not the testimony was sufficient to sustain the court’s findings of fact, and whether, upon such findings, the court erred in its declaration of law. We are convinced that there was substantial testimony to sustain the court’s findings of fact. It could serve no useful purpose as a precedent to comment upon the testimony in detail. It is set forth above, and speaks for itself.

The appellee alleged in his complaint that, at the time of the death of the assured, all premiums that were due upon said policy had been paid. The appellant denied this allegation. The burden of proof therefore was upon the appellee. Appellee has sufficiently met. this burden by testimony showing that the policy' was issued and delivered to the assured; that the assured paid part of the premium in cash and executed his note to Lester & Lester, general agents of the company issuing the policy, for the balance of the premium. It will be observed that the policy provides that “all premiums are due and payable annually in advance at the home office of the company.” While there is a provision in the policy which would authorize the execution of a note in payment of the first premium, yet the testimony in the record was sufficient to warrant the trial court in finding that the first premium due on this policy was not paid by tbe assured’s note to the company. The note itself, executed by the assured in part payment of the premium on the policy, was in the name, not of the company issuing the policy, but of the general agents of the company, Lester & Lester. The note was not executed in the full amount of the first premium. It was taken in the exact amount of the “net” sum demanded by the company as indicated by the letter of Lester & Lester of December 21, 1923, to Carroll. This letter shows that the amount of premium was $70.84, and that of this amount $46.05 went as commission to Lester & Lester and the balance of $24.79 was the “net” to be paid to the company. The court was warranted in finding that this sum, designated as “net” in the letter of Lester & Lester, represented the amount of cash which the company was to receive out of the first premium. This letter of December 21,1923, of Lester & Lester, taken ‘in connection with the letter of February 12, 1924, fully warranted the court in finding that the company issued the policy and that the same was delivered to the assured with the understanding that he had paid the first year’s premium when he paid the amount of the general agent’s commission in cash and executed his note to the general agents for the balance of such premium. The court was fully warranted in inferring from these letters that the company was demanding the “net” (the amount for which the note was executed) in cash. Now, the note' itself which Lester & Lester had accepted in part payment of the premium was not due until April 1, 1924. Therefore the company could not have been demanding a payment of the note, but, as indicated by the letter of February 12, the company was demanding a return of the policy or the money. This clearly shows that the company had issued the policy and delivered the same, expecting its agents,. Lester & Lester, to pay in cash the net sum due it out of the first premium, after deducting their commission. In other words, the trial court had the right to infer from these letters that Lester & Lester, its general agent's, had undertaken to collect the first premium and had themselves become responsible to the company for the payment of the first premium. If such was not the arrangement, why would the company be demanding of them the return of the policy or the payment of the net or cash before the note was due, which the appellant now claims was taken in part payment of the premium? Certainly, the above was the only legitimate inference to be drawn from the letters of the Century Company’s general agents. The fact that the notes were executed in the name of the general agents and that they were attempting, long after" the death of the assured, to collect these notes, as indicated by their letter of September 11, 1924, and their stipulation in the record, tends further to prove that the above was the arrangement between the general agents, Lester & Lester, and the Century Company. If such was not the arrangement, certainly it called for some explanation on the part of the appellant showing that such was not the arrangement between the Century Company and its general agents at the time the policy was issued and delivered to the assured. If such was not the arrangement, Lester & Lester knew that fact. They have not testified. There is no testimony on the part of the appellants to show that the note was not what it purported to be — an obligation to Lester & Lester. The court was warranted in finding that the note was not an obligation to the Century Company, but was an obligation to Lester & Lester, and that the first premium was paid. If the premium was paid, the company had no right to cancel the policy.

The court therefore correctly declared the law applicable to the facts which the testimony above set 'forth tended to prove. The case cannot be distinguished in principle on the facts from the case of Mutual Life Insurance Company v. Abbey, 76 Ark. 328, 88 S. W. 950, where we announced the law' which the trial court followed in its declarations of law as above set forth. That case rules this.

The judgment is therefore correct, and it is affirmed.


text:
    Spencer v. Pierce.
    Opinion delivered November 15, 1926.
    1. Evidence — parol contradicting writing. — A witness will not be permitted by parol evidence to contradict his own deed.
    2. Evidence — secondary evidence.- — A witness will not be permitted to testify as to the contents of a deed not produced, where it is not shown to have been lost or destroyed or that it could not be produced.
    3. Evidence — hearsay.—Testimony of a witness as to what his uncle told him concerning a certain conveyance held hearsay and inadmissible in a suit to recover possession of the land.
    4. Ejectment — common source of title. — -Where the parties to ejectment claim from a common source, it is unnecessary for the plaintiffs to trace their title beyond such common source.
    5. Ejectment- — common source of title. — Where the parties to ejectment claim from a common source, plaintiffs are entitled ■ to recover if they prove the better title fro-m the common source.
    6. Ejectment — common source of title. — Plaintiffs in ejectment held, under the evidence, to have established the better title to the land from the common source, and to be entitled to judgment for possession and damages.
    7. . Tenancy in Common — right of action. — Plaintiffs, entitled to recover a half interest in land, may maintain an action against defendants wrongfully in possession, which inures to the benefit of their cotenants.
    Appeal from Baxter Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      II. J. Denton, for appellant.
   Wood, J.

This is an action by the plaintiffs below, appellants here, against the defendants below, appellees here, to recover the possession of all that part of the northwest fractional quarter of section 11 in township 18 north, range 12 west, lying north and east of what is known as Dry Branch. The appellants alleged that they were the owners of the land and other lands adjoining the same. They deraigned title from the Government- by mesne conveyances from the patentee of the land, J. H. Wolf, to J. L. Spencer, and by the last will and testament of Spencer to the appellants. They alleged that the appellees were in unlawful possession of the land in controversy, and had been, to appellants’ damage in the sum of $1,000. They prayed judgment for possession and damages, and that their title be ‘ ‘ established, quieted and confirmed. ’ ’

The appellees answered denying the material allegations of the complaint, and deraigned title from J. H. Wolf through mesne conveyances to them. The appellees alleged title by adverse possession of the lands for a period of more than twenty years. They also alleged that appellees’ predecessors in title and the appellants’ predecessors had Only an undivided interest in the lands; that the lands had been divided between them by deed, which was lost; that the appellants and appellees therefore elected to take a certain agreed line as set out in the deeds, which gave to the appellees the lands claimed by the appellants in this action. They prayed that the appellees’ title to the lands be “established, quieted and confirmed.” The cause was begun in the law court and was, without objection, transferred to the chancery court. It was conceded by counsel for the appellees in the court below that the Government survey and plat of the land in question would take the land from the appellees. The .appellees claimed the land in controversy by adverse possession under lines which they alleged had been agreed upon by the predecessors in title of the appellants and the appellees.

The testimony on behalf of the appellants tended to prove that, by agreement between F. F. Pierce, the predecessor in title of the appellees, and Guy W. Spencer, representing himself and the other appellants, a survey of the lands was made to locate the section line between sections 2 and 11. Guy Spencer testified on behalf of the appellants, in substance, that the appellants acquired title to the lands in controversy by purchase and warranty deed to the northwest fractional quarter of section 11, township 18 north, range 12 west, Baxter' County, Arkansas, and that F. F. Pierce, predecessor in title of the appellees, acquired title by purchase to part of section 2, township 18 north, range 12 west, adjoining the land of appellants. After the death of witness’ father, witness entered into an agreement with F. F. Pierce to have the dividing line legally surveyed. This was in the fall of 1919, in F. F. Pierce’s store in Norfolk, in the presence of Dick Martin and J. N. Ware. Pierce accused the witness of cutting some of his timber. Witness agreed to have the survey made to establish the line between them, and Pierce agreed to pay half the expense and to abide by the result of the survey. Pierce refused to abide by the survey, and -he held possession of the lands in dispute about nine years, and the land is worth seven dollars per acre. The appellants had paid taxes on the land in controversy. The appellees had not paid the taxes on any part of this land. Pierce’s renter cultivated the land on both sides of Dry Branch in 1922 and 1923.

The testimony of a surveyor shows that there were nine acres of land in section 11, township 18, range 12 north, and east of Dry Branch. Witnesses Martin and Ware corroborated the testimony of Guy Spencer to the effect that F. F. Pierce and Guy Spencer agreed to have a survey made so as to establish the line between their lands. Ware testified that Pierce and Spencer were willing to have the survey made and to abide by it. The survey was made, and Spencer got about eight acres off Pierce’s land, worth from fifty to sixty dollars per acre, and Pierce got three acres off of Spencer’s land. Pierce and his estate had been in possession of the land for about eight years, and the Spencers had been in possession of and cultivating for the past eight years that part of the southeast quarter of section 2 west of Dry' Branch. Witness cultivated the land in section 11 west of Dry Branch claimed by Spencer, but did not tend the land west of Dry Branch, in the southeast quarter of the southwest quarter of section 2, township 18, range 12, because Spencer told witness to leave that out— that they did not claim it after the survey was run. Spencer was cutting some cedar timber a half mile west of Dry Branch, on a line between the Spencer place and the Bud Jones place, owned by Pierce. The dispute over the line between Pierce and Spencer arose about the cutting of- this cedar.

The testimony on behalf of the appellants shows that Pierce was with the surveyors and Guy Spencer at the time the survey was being made. Will Bryant, a witness on behalf of the appellees, testified that he. moved on the land in controversy in 1901. Three years of the time T. J. Baker owned it, and then J. L. Spencer bought it, and witness stayed one year after that. He cultivated the land afterward owned by J. L. Spencer, and did not cultivate any land east of Dry Branch. Jake Wolf owned that land. He sold it to J. H. Caldwell, and Caldwell had the land east of Dry Branch cultivated. Witness showed J. L. Spencer the line when he bought the land. He did not show him any land east of Dry Branch. -Jeff Baker had witness put in a fence on Dry Branch, and later another fence was put on the other side. Two fences divided the two farms. Baker told witness that the creek was the fine between them. At the time witness showed Spencer the line, witness had no description of the land to go by. Witness cultivated a part of the land in section 2 west of Dry Branch on the Spencer farm. Lewis and Caldwell did not cultivate any land in section 2 west of Dry Branch while witness was over there.

S. C. Pierce testified that he was the administrator of the estate of P. P. Pierce, and had charge of the lands belonging to the Pierce estate in the northwest fractional quarter of section 11 east of Dry Branch. He had not authorized any one to cultivate lands west of Dry> Branch, in the southeast quarter of the southwest quarter of section 2.

Over the objections of the appellants, J. H. Wolf was permitted to testify that he sold to T. J. Baker, in 1899, that part of the northwest fractional quarter of section 11, township 18, range 12 west. of Dry Branch, and pointed out Dry Branch as the line. Witness retained possession of the land east of Dry Branch and exercised the right of ownership over it for three years thereafter. Witness sold the lands in controversy to James Caldwell in 1902, and pointed out to him, among other lands, all that part of the northwest fractional quarter of section 11, township 18, range 12 west, east of Dry Branch, and put him in possession. Witness remembered seeing a deed for part of section 2 from L. J. Wolf to M. J. Wolf, in which Dry Branch was made the line. Witness’ uncle told witness that Dry Branch was the line between the lands conveyed to T. J. Baker and J. H. Caldwell. Dry Branch was not mentioned in the deed to T. J. Baker as the line. Witness told him that Dry Branch was the line.

Witness Schoggin testified that he saw a deed from Wolf to T. J. Baker conveying the northwest fractional quarter in section 11, and other lands. The deed did not mention Dry Branch as the line. It conveyed the northwest fractional quarter in full and without any reservation. There was never a legal survey of the land between the Spencer and Pierce lands up to the time of the institution of this suit. Theo Bryant testified that he was familiar with the lands in controversy. Pierce was in possession of it when he first knew it. During the eight years that -witness knew the lands and cultivated part of them, no legal survey was made of the lines.

It was t shown that the deed from Baker to (Ranee) J. L. Spencer calls for an undivided half interest of the lands in controversy.

The trial court found that the appellants failed to show a record title, and entered a decree dismissing the appellants’ complaint, for want of equity, from which is this appeal.

1. The testimony of J. H. Wolf, to the effect that he sold that part of the northwest fractional quarter of section 11, township 18 north, range 12 west, lying west of Dry Branch to T. J. Baker, is incompetent and cannot be considered. Likewise, his testimony to the effect that, in 1902, he sold the land in controversy to James Caldwell and pointed ont to him all that part of the northwest fractional quarter of section 11, township 18 north, range 12 west, east of Dry Branch, and put him in possession thereof, is incompetent and cannot he considered. This testimony tended to contradict the deed from Wolf to T. J. Baker, which does not mention Dry Branch as the dividing line between the land conveyed to Baker and the land conveyed to Caldwell. The terms of the deed are controlling. The testimony of this witness to the effect that'he saw a deed from his uncle, Jake Wolf, to M. J. Wolf in which Dry Branch was made the line, is incompetent for the reason that, if such deed was in existence, it was the best evidence. It was not shown that this deed was lost or destroyed, nor that it could not be produced. The testimony of this witness that his uncle, M. J. Wolf, told witness that this Dry Branch was the line between these lands conveyed to Baker and Caldwell was pure hearsay and cannot be considered.

Since the appellants and appellees claimed from a common source, it is unnecessary for the appellants to trace their title beyond this common source. Naill v. Kirby, 162 Ark. 140, 257 S. W. 735. The appellants therefore are entitled to recover if they have proved a better title to the lands in controversy from J. H. Wolf than the title of the appellees through the same source. 19 C. J., p. 1061, § 39 (8).

The appellants adduced in evidence a deed from J. H. Wolf to T. J. Baker in which Wolf conveyed to Baker an undivided half interest in the northwest fractional quarter of section 11, township 19 north, range 12 west, and a deed from T. J. Baker to J. L. Spencer conveying the same lands, and the will of J. L. Spencer devising these same lands to the appellants. While the appellees assert that there has been a complete chain of title from J. H. Wolf to the land in controversy, they fail to show a record title from J. H. Wolf through mesne conveyances to F. F. Pierce, under whom they claim. Appellees exhibit no mesne conveyances in which lands embracing the lands in controversy are described conveying title from J. H. Wolf to P. F. Pierce under whom appellees claim. The appellants therefore have shown a superior title to that of the appellees.

But the appellees also claim title by adverse possession. A preponderance of the testimony tends to prove that there was a dispute between F. F. Pierce and Guy Spencer concerning the boundary between .their adjoining lands and that they entered into an agreement to have a survey made to determine the true boundary line between them. According to the boundary line established by this survey, the lands in controversy were included in the northwest fractional quarter of section 11, township 18 north, range 12 west, described in the deed from Wolf to Baker and from Baker to Spencer. The land in controversy was not wild land, and the proof is not sufficient to show that the appellees had been in adverse possession thereof under color of title for seven years. The appellees therefore were trespassers, and the appellants are entitled to judgment against them for possession and for whatever damages they have sustained at the hands of the appellees. See White v. Cotton, 131 Ark. 273-282, 199 S. W. 116.

2. The appellants are entitled to recover an undivided one-half interest in the lands in controversy, and this right of possession and for damages in the appellants enables them to maintain the action against the appellees, which inures also to the benefit of the owners of the other undivided half interest. One tenant in common may maintain an action for the recovery of real property against a third person and trespasser which will inure to the benefit of all his cotenants. 2 Thompson on Real Property, § 1893, and cases cited in note 31. See also Newman v. Bank of Cal., 80 Cal. 368, 222 P. 261; Hooper v. Bankhead, 171 Ala. 626, 54 So. 549; Winborne v. Lbr. Co., 131 N. C. 32, 40 S. E. 825; Mitchell v. Mitchell, 80 Tex. 101, 15 S. W. 705; 19 C. J. 1038; 38 C. J. 12, subdivision III, B, and other authorities cited in brief of counsel for the appellant. See also Burgett v. Williford, 56 Ark. 187-192, 35 S. W. 96.

The judgment is reversed, and the cause is remanded with directions to the trial court to enter a decree in favor of the appellants against the appellees for the possession of the property, and for further proof, if the parties so elect, as to the amount of appellant’s damages. It appears to ns that that feature of the case is not fully developed.

       The following additional authorities are cited by appellant’s counsel: Keith v. Keith, 39 Tex. Civ. App. 363; Allen v. Gibson, 4 Rand. 468; LeCroix v. Malone, 157 Ala. 434, 47 So. 725; Blakely v. Du Bose, 167 Ala. 627, 52 So. 746; Simmons v. Spratt, 26 Ala. 499, 8 So. 123; King v. Hyatt, 51 Kan. 504, 32 Pac. 1105; Horner v. Ellis, 75 Kan. 675, 90 Pac. 275; King v. Bullock, 9 Dana (Ky.) 41; Compton v. Matthews, 3 La. 128; Hutchins v. Bacon, 46 Tex. 408; Read v. Allen, 56 Tex. 176; Sowers v. Peterson, 59 Tex. 216; Moore v. Stewart, 7 S. W., 771; Thomas v. Jones, 97 N. C. 121, 1 S. E. 693; Hardy v. Johnson, 1 Wall. 371; Foster v. Hackett, 112 N. C. 546, 17 S. E. 426. (Reporter).


text:
    Finney v. State.
    Opinion delivered November 15, 1926.
    1. Highways — dedication.—A public road can be established, not only by an order of the county court, but also by dedication ón the part of an owner of the land and the assent thereto and use thereof by the public.
    2. Highways — obstruction.—One who purchases land over which a public road has been dedicated by former owners by bill of assurance on file will be held to have notice thereof and to be liable for obstructing same.
    Appeal from Pulaski Circuit Court, First Division; Abner McOehee, Judge;
    affirmed.

      W. R. F. Paine, for appellant.

      H. W. Applegate, Attorney General, and J. S. Abercrombie, Assistant, for appellee.
   Wood, J.

On April 30, 1925, the owners of the land over which the Batesville cut-off road was built executed a bill of assurance and dedication, with a plat annexed thereto, dedicating to the public for a public road a right-of-way fifty feet wide. This dedication and assurance was filed by the owners in tbe office of the recorder of Pulaski County, Arkansas. Thereafter the landowners, during the months of May, June and July, 1925, cleared, grubbed and graded the right-of-way and built concrete tile culverts, permanent bridges with stone and concrete head-walls, on the location as shown by the bill of assurance and plat. The landowners opened up the road to the public travel on August 1, 1925. The road was constantly used by the public as a highway. On May 10, 1926, Harry Cooper purchased a portion of the land over which the highway runs, and, under his direction, P. E. Finney inclosed this land with a wire fence, and, by so doing, obstructed the public travel over the land that had been dedicated to the public by previous owners for a highway. The Batesville cut-off road shortens the length of the old road from a point where it reaches the old road at the east end of Little Pock one and three-fourths miles. It also lessens the maximum grade of the old road, traveling toward Little Pock, from seventeen per cent, to six per cent. That is, the maximum grade on the old road, traveling toward Little Rock, was seventeen per cent, whereas the grade on the cut-off road toward Little Rock is only six per cent. •

P. E. Finney was convicted by judgment of the circuit court of Pulaski County on the above facts of the crime of obstructing a public, highway, from which judgment 'he prosecutes this appeal.

The only question for decision is whether or not the road obstructed by the appellant was a highway.

In Patton v. State, 50 Ark, 53-57, 6 S. W. 227, we said: “It is not absolutely necessary to establish a public highway that its boundary lines be surveyed and that it be opened and appropriated to public use under an order of the county court. It Can be established by a dedication on the part of the owner of the soil over which it runs and the assent thereto and use thereof by the public. ’ ’ Act No. 666 of the General Acts of 1923, p. 568, provides as follows: Section 5. Any street or road heretofore dedicated to the public as a public thoroughfare is hereby declared a public road, and any street or road that may hereafter be dedicated to the public as a public road shall become a public road on being dedicated to the public as a public road, when the bill of assurance making such dedication is properly recorded.”

Thus it will be seen that the principle announced by the court in Patton v. State, supra, in 1887, was enacted into statutory law by the above act. Harry Cooper purchased the land over which the highway had been dedicated by its former owners under the above statute. He therefore purchased with notice of such dedication, and had no authority to direct the appellant to obstruct the highway, and appellant, by so doing, violated the provision of § 2754 of C. & M. Digest, which makes it a misdemeanor for any person to “ obstruct any public road by felling any tree or trees across the same, or placing any other obstruction therein. ’ ’

The judgment is therefore correct, and it is affirmed.


author: Hart, J.,

text:
    Southern Bauxite Company v. Brown-Pearson Cash Feed Store.
    Opinion delivered November 15, 1926.
    1. Principal and agent — evidence of authority. — Evidence held to sustain finding that an agent had authority to represent the defendant corporation.
    2. Corporations — liability for acts of agents. — Where a corporation clothes a particular agent with the apparent authority to act for it in a particular business or transaction as to the person dealing with him in good faith, it will be bound the same as if such apparent authority were real.
    3. Frauds, statute of — collateral undertaking. — A verbal agreement by defendant’s agent that an account should be charged to the defendant for the use of. a third person is not a collateral undertaking within the statute of frauds.
    4. Frauds, statute of — collateral undertaking — instruction.— Where there was evidence tending to prove that defendant’s agent verbally authorized an account to be charged against defendant for the benefit of an employee, it was not error to instruct that, where a party undertakes to pay for goods to be furnished to his employees, it is an original undertaking and not within the statute of frauds. '
    5. Sales — liability of buyer. — Where a corporation agreed to pay for mule feed furnished to one paid for his work by it, it is liable for the price, whether he was working as independent contractor or as employee.
    6. Trial — instruction singling out part of witness’ testimony.— An instruction which singled out a portion of the testimony of a witness and made a recovery to depend on it, to the exclusion of other, parts of his testimony, was properly refused.
    7. Trial — modification of instruction. — Where appellant asked an incorrect instruction, it cannot complain of a modification which contains nothing prejudicial to appellant, and would have been proper if a correct instruction had been requested.
    8. Appeal and error — scope of objection. — Where appellant made specific objections to instructions, it will be deemed to have waived other objections.
    Appeal from Saline 'Circuit Court; Thomas E. Toler, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Brown-Pearson Cash Peed Store, a corporation, sued the Southern Bauxite Company, a corporation, to recover the sum of $655.62 for merchandise alleged to have been sold to the defendant. The defendant denied that it was indebted to the plaintiff, and denied that it purchased any of the merchandise in question from the plaintiff.
    Chester Carter, the manager of the Brown-Pearson Cash Peed Store at Benton, Arkansas, was the principal witness for the plaintiff. In June, 1924, Clem Gaunt, who was working for the Southern Bauxite .Company, came into the store of the plaintiff and wanted to buy some feed, and proposed to start an account. Carter agreed to sell him some feed for the plaintiff, and also agreed upon the price of the feed. The first order was delivered by the plaintiff to the defendant on June 25, 1924. Payments were made every three or four days at first, and then it was agreed between the parties that payments should be.made every two weeks. -
    About two weeks after the first order was delivered by the plaintiff to the defendant, Carter went back to the store of the defendant for the purpose of selling it some bats and also a mixed feed called Omalene. Gaunt told him that J. J. Ferrell was coming down there to take charge of their mules and was also going to bring some more mules. Gaunt said that Ferrell would need some feed for his mules, and that “we [referring to the defendant] will feed them and will get what he wants.” Again, Carter was asked what Gaunt said about feeding Ferrell’s mules, and said: “He said, send this feed on the bill as the rest, but write under it ‘By J. J. Ferrell,’ what he gets, and that is the way I have done it all. If I sent them bills, I would send them to the Southern Bauxite Company, by J. J. Ferrell.” Carter further stated that he did this under the instruction of Clem Gaunt, who was working for the defendant.
    Payments were made from time to time until November 10, 1924. At this time the sum of $655.62 was the balance due plaintiff for the feed furnished. Gaunt, at that time, notified the plaintiff not to furnish any more feed, and no items were furnished after that except upon a special order, which was paid by the defendant.
    On cross-examination, Carter was asked if Clem Gaunt did not tell him that the defendant was going to sell its teams to Ferrell, and that the plaintiff could g-et his business just as it had been selling to the defendant, and he answered: “Well, Clem told me they were going
    to sell to them. I said, ‘You will stand good for the feed?’ and he said, ‘Yes, run it through just like it had been.’ ” Later on he stated, on cross-examination, that he understood that he was selling the feed in question to the Southern Bauxite Company, and did not understand that he was selling the feed to Ferrell. When payments were made on the account, he supposed that they were made by the defendant.
    Another salesman, who represented the manufacturer of the Omalene feed, was present when Carter and Gaunt had the conversation about- the plaintiff furnishing feed to Ferrell and charging the same to the defendant, and corroborated the testimony of Carter. He said that the sale was made to the Southern Bauxite Company, and that the negotiation took place with Clem Gaunt, the bookkeeper.
    J. J. Ferrell was also a witness for the plaintiff. According to his testimony, he carried seventeen or eighteen mules with him' and took over eighteen mules from the Southern Bauxite Company when he went to work for it. He executed a mortgage to the ■ Southern Bauxite Company for the mules purchased from it. When his feed would run out, the Southern Bauxite Gompany would order feed for him with its own feed. Ferrell never had any transactions with the plaintiff.
    Clem Gaunt was the principal witness for the defendant. According to his testimony, he was the defendant’s bookkeeper, and purchased some feed from the plaintiff for the defendant in June, 1924. About the first of June, 1924, the defendant sold its mules to J. J. Ferrell, and did not buy any more feed from the plaintiff. Gaunt told Carter that Ferrell had purchased the mules from the defendant, and was going to get out ore for it. He further told Carter that he would deduct the price of any feed that Ferrell might buy from the plaintiff from his pay. ■ He denied that he agreed with Carter that the feed which should be furnished by the plaintiff to Ferrell should be charged to the defendant. He said that he had no authority to make such an agreement and no authority to buy feed, except such authority as was given him by the manager of the company. He admitted that the feed which he had bought in June from the plaintiff for the defendant was purchased by the authority of the defendant.
    Other evidence was introduced by both parties, but the above is sufficient to show the issues raised by the appeal. The jury returned a verdict in favor of the plaintiff, and from the .judgment rendered the defendant has duly prosecuted an appeal to this court.

      Brouse & McDaniel, for appellant.

      W. A, TJtley, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict.

Counsel first insist that the evidence is not sufficient to show that Gaunt had any authority to act for the defendant in the purchase of the feed in question. According to the testimony of Carter, Gaunt had been working for the defendant about two months before it opened any account with the plaintiff. Gaunt was known as the bookkeeper of the defendant, and acted for it in opening an account for the purchase of feed in the month of June, 1924. Gaunt admitted that he bought the items on the account in June, 1924, and that he had authority from the defendant to make the purchase. He said, however, that he had special authority from the manager of the company to make the purchase. According to his testimony, he never authorized the plaintiff to furnish feed to Ferrell and .charge the same to the plaintiff. According to the testimony of Carter, he did make such an agreement. The jury found in favor of the plaintiff and, by its verdict, accepted the testimony of Carter as true. This would make a case where the undisputed evidence shows that Gaunt had the authority to open an account with the plaintiff for the purchase of mule feed from it. The defendant sold its mules to Ferrell about the first of July, 1924. The plaintiff continued to furnish feed to Ferrell, and charged the same to the defendant by Ferrell. This was pursuant to an agreement between Carter and Gaunt, according to the testimony of the former. Under these circumstances, the jury might have found that Gaunt was acting within the apparent scope of his authority in purchasing the mule feed. The defendant knew that Gaunt had opened an account with the plaintiff for the purpose of the purchase of mule feed by it in June, 1924. If it intended to limit or restrict his authority as to the purchase of feed after the first of July, 1924, it should have notified the plaintiff of that fact. Carter’s testimony brings the case within the rule that, where a corporation clothes a particular agent with the apparent authority to act for it in a particular business or transaction, as to the person dealing with him in good faith, it will be bound the same as if such apparent authority were real. Moore v. Ziba Bennett & Co., 147 Ark. 216, 227 S. W. 753; Thompson v. Collier-Reynolds Grocery Co., 155 Ark. 355, 244 S. W. 355; Austin Western Rd. Mch. Co. v. Grant Co., 164 Ark. 228, 261 S. W. 283; Empire Rice Mill Co. v. Stone, 155 Ark. 623, 245 S. W. 16; Arkadelphia Milling Co. v. Green, 142 Ark. 565, 219 S. W. 319; and Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508.

It is next insisted that the evidence is not legally sufficient to support the verdict, because, under the testimony of the plaintiff, it was a collateral undertaking. In making this contention, counsel rely upon the testimony of Carter, in one place, where he asks Gaunt if the defendant will stand good for the feed. Carter, however, explained what he meant by this expression, and said that it was his understanding that the account was to be charged to the defendant, and that it alone would be liable to the plaintiff. The account was charged to the defendant, by J. J. Ferrell, because Gaunt asked Carter to charge it that way, and that, under their agreement, the defendant alone was liable to the plaintiff for the feed purchased and sued for in this action. Hence we hold that this assignment of error is not well taken.

The next assignment of error is that the court erred in giving instruction No. 5, which reads as follows: “You are instructed that, where a party undertakes to pay for goods to be furnished to his employees, it is an original undertaking and not within the' statute of frauds as a promise to pay another’s debts.”

In their brief, counsel say that there was no evidence that Ferrell was an employee of the defendant, and that the evidence shows that he • was an independent contractor and not an employee of the. defendant. At the trial of the case the counsel for the defendant made a specific objection to the instruction, .on the ground that all the evidence showed that Ferrell was an independent contractor, and that the undisputed evidence showed that, even though the defendant promised to pay the account, it was not an original undertaking. As we have already seen, there was evidence upon which the jury might find that the promise of the defendant to pay the feed account of Ferrell was an original undertaking.

It is also fairly inferable that Ferrell was an employee of the defendant. At one place in his testimony '¡he stated that he worked for the Southern Bauxite Company. The tmdisputed evidence shows that he was engaged in getting out bauxite ore for the defendant. As far as this case is concerned, it does not make any difference whether hé was getting it out as an independent contractor or as an employee. The undisputed evidence shows that he was being paid for his work by the defendant. It would be equally liable whether he was working as an independent contractor or as an employee. The sole question was whether or not the defendant agreed to pay for the mule feed in question. Its defense was that no such an agreement was made, or that, if such an agreement was made, it was void under the statute of frauds. Hence we hold that this assignment of error is not well taken.

The next assignment of error relates to a modification of instruction No. 5, asked by the defendant. The instruction, as requested, reads as follows: “You are instructed that, even though you may find from the evidence in this case that Clem Gaunt told the manager of plaintiff herein that the company would stand good for the feed, this would not be sufficient to bind the defendant company, and you will so find.”

The court modified the instruction by adding to it the following: “Unless you further find that the said Clem Gaunt was acting within the scope of his authority. ’ ’

The instruction as requested by the defendant was erroneous, because it tells the jury that, even though it may find from the evidence that Gaunt told Carter that the defendant would stand good for the feed, this would not be sufficient to bind the defendant, and the jury should so find. The instruction as requested would lie erroneous, because it does not take into consideration the other testimony of Carter, which, if believed by the jury, would make the undertaking of the defendant an original and not a collateral one. The instruction, as requested, was faulty because it singles out a portion of Carter’s testimony and makes the right of the plaintiff to recover to depend upon this isolated portion of the testimony. The modification placed upon the instruction by the court was not erroneous if it had been tacked on to a proper instruction. If the defendant had requested the court to instruct the jury, that, even though it might find from the evidence of Carter that the company would-pay for the feed, this would not be sufficient to bind the defendant, unless it should further find that Gaunt was acting within the scope of his authority, this would have been a proper instruction, and should have been given. As we have just seen, the deféndant was not entitled to the instruction as requested at all, and it cannot complain of the modification which did not add anything prejudicial to the defendant’s case, and which would have been proper if the defendant had asked a correct instruction. Harrington v. Los Angeles Railroad Co., 140 Cal. 514, 74 P. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85; and Southern Railway Co. v. Howell, 135 Ala. 636, 34 So. 6.

In this connection it may be stated that neither of the instructions quoted above are in proper form, but the defendant made specific objections to each of them, and, on that account, will be deemed to have waived other objections to them. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048.

;We find no reversible error in the record, and the judgment will therefore be affirmed.


text:
    Karnes v. Ramey.
    Opinion delivered November 15, 1926.
    1. Process — impeachment of false return. — An officer’s false return of service of process does not preclude the defendant from showing the truth in a proper proceeding to be relieved from the burden of a judgment or decreei based thereon.
    2. Judgment — relief against default decree. — One who is aggrieved by a judgment rendered in his absence must show, not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense.
    3. Process — evidence as to service.- — A recital in a default decree that defendants were duly served with summons in time and manner provided toy law, tout made default, is prima fade evidence of such facts, but defendants may introduce testimony to contradict the recital of the decree, the burden of proof being upon them.
    4. Process — nature of officer’s return. — An officer’s return showing that defendants were duly served with summons as required by law constitutes his official oath as to facts stated therein.
    5. Process — evidence as to service. — In a suit to set aside a default decree in a mortgage foreclosure suit, defendant’s evidence held insufficient to overcome the sheriff’s official return reciting service of the summons in time and manner prescribed by law, where it was shown that the summons was served by leaving a copy with a member of his family over 15 years of age at his usual place of abode, as provided by Crawford & Moses’ Dig., § 1144, sub-div. 3.
    6. Judgment — relief against default decree. — Where defendants fail to show facts sufficient to overcome the return of service of summons on them in a foreclosure suit and the recital of due service in the decree, they cannot have the decree set aside, although they have a meritorious defense.
    Appeal from Carroll Chancery Court, Eastern District ; Lee Seamster, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    J. W. Karnes and Mary Karnes brought this suit in equity against R. C. Ramey to set aside a decree of foreclosure against them on a real estate mortgage. The complaint alleges that the foreclosure decree was obtained without service of summons upon them, and also alleges facts which, if established by a preponderanee of the evidence, would be a meritorious defense to the foreclosure suit.
    It appears from the record that John H. Minick, the son-in-law of the plaintiffs, and his wife, executed a mortgage on real estate in Carroll County, Arkansas, to secure a debt which they owed R. C. Ramey. J. W. Karnes and Mary Karnes, his wife, executed a mortgage on their homestead in Carroll County, Arkansas, to R. 0. Ramey to secure the indebtedness of J. H. Minick to said Ramey in the sum of $1,000. The mortgage debt was not paid when it became due, and R. C. Ramey instituted an action in the chancery court against John H. Minick and his •wife and J. W. Karnes and Mary Karnes, to foreclose the mortgages on their respective lands.
    A decree of foreclosure was entered of record, and judgment was rendered against John H. Minick for the amount of the debt secured by his mortgage, and against J. W. Karnes for the debt secured by his mortgage. The foreclosure decree recites that the defendants had been served with personal summons in the way, time and manner provided by law, but made default. The decree provided that, if the judgment was not paid in twenty days, the commissioner nf the court.be directed to sell said land for the satisfaction of the judgment, in the manner and under the terms provided in the decree.
    J. W. Karnes especially appeared to file exceptions to the report of the commissioner of the sale of his land. The return of the sheriff in the foreclosure suit shows that J. W. Karnes and Mary Karnes were duly served with summons by delivering a copy of same and stating the substance thereof to the within named J. W. Karnes and Mary Karnes as commanded. The return was signed E. L. McShane, sheriff, by Jack Walker, D. S. According to the testimony of J. W. Karnes, no service of summons was had upon him. He admitted that his wife had told him that the sheriff had left a paper with her, but did not say that any was left for him, and that he never saw the paper. The record contained a stipulation that the papers and exhibits in the foreclosure suit may be used as evidence in this case. According to the testimony of Mary Karnes, upon exceptions to the commissioner’s report of sale in the foreclosure suit, deputy sheriff Walker served papers on herself and her daughter, Mrs. John Minick, in Berryville, Arkansas.
    The chancellor found the issues in favor of the defendant, and it was decreed that the complaint of the plaintiffs be dismissed for want of equity. To reverse that decree the plaintiffs have duly prosecuted an appeal to this court.

      Festus 0. Butt, for appellant.

      G, A. Fuller, for appellee.
   Hart, J.,

(after stating the facts). This court is committed to the doctrine that an officer’s false return of service of process shall not preclude the defendant from showing the truth, in a proper proceeding, to be relieved from the burden of a judgment or decree based thereon. One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense. State v. Hill, 50 Ark. 458, 8 S. W. 401; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575; and First National Bank of Manchester v. Turner, 169 Ark. 393, 275 S. W. 703.

As will appear from our statement of facts, the mortgage foreclosure decree which is sought to be set aside in this case recites that the defendants were duly served with summons in the time and manner provided by law, but made default. This recital is prima facie evidence of the facts stated, but, under the principle of law decided in the cases above cited, the defendants may introduce testimony to contradict the recital of the decree; but the burden of proof is upon them. The return of the officer in the foreclosure suit shows that the defendants in that action, J. W. Karnes and Mary Karnes, who are the plaintiffs in the case at bar, were duly served with summons in the time and manner prescribed by law. This constituted the official oath of the officer as to the facts stated in his return.

We are of the opinion that the plaintiffs in this action have not satisfactorily met the burden laid upon them in contradicting the return of the officer as to the service of summons upon them. Mary Karnes, the wife of J. W. Karnes, admitted that she was served with process by the deputy sheriff at her residence in -Berryville, Carroll County, Arkansas. J. W. Karnes admits that his wife told him that the sheriff had left a paper with her, but that she did not say that any was left for him, and that he never saw the paper.

Thus it will be seen that Mrs. Karnes admits in her testimony that service was had upon her, and J. W. Karnes admits that he was informed by his wife that a paper had’been served upon her. If he had used reasonable diligence, this fact would have put him in possession of the fact that he had been made a defendant in the foreclosure suit. In any event, ,the evidence offered by the defendants is not sufficient to overcome the official return of the sheriff. At most, it only shows that, instead of serving the summons upon J. W. Karnes personally, it was served upon him by leaving a copy at his usual place of abode with some person who was a member of his family, over fifteen years of age, as provided in the 3rd subdivision of § 1144 of Crawford & Moses’ Digest.

It follows that the plaintiffs did not’show facts sufficient to overcome the return of the service of summons upon them in the foreclosure suit and the recital contained in the decree that they were duly served with summons; and they are therefore not entitled to set aside the foreclosure decree, regardless of the fact of whether or not they might have a meritorious defense to that action. It follows that the decree must be affirmed.


text:
    Williams v. Courton.
    Opinion delivered November 15, 1926.
    1. Deeds — designation of grantee. — An instrument purporting to be a deed which left the grantee’s name a blank does not ¡become operative until the name of the grantee is inserted.
    2. Frauds, statute of — conveyance of land — signature by agent. —An agent to fill in the name of the grantee in a deed must have written authority from the principal.
    3. Homestead — joinder of wife in conveyance. — A homestead cannot be conveyed by a husband without his wife joining in the deed.
    Appeal from Benton Chancery Court; Lee Seamster, Chancellor;
    affirmed.
    statement by the court.
    Clarence C. Courton and Izora B. Courton, his wife, brought this suit in equity against Clyde V. Seale and Leo Williams to cancel and set aside a deed purporting to have been executed by them to said Clyde V. Seale and a quitclaim deed to the same land executed by Clyde Y. Seale to Leo Williams.
    The material facts are as follows: Clarence C. Courton and Izora B. Courton were husband and wife, and they owned, as their homestead, the forty acres of land in controversy, in Benton County, Arkansas, thé title to which was in the name of Clarence C. Courton. The latter also owned two farms in Oklahoma, containing ninety and sixty acres, respectively. In June, 1923, Courton and his wife temporarily moved from their home place in Benton County, Arkansas, to his Oklahoma farm, which was some sixteen miles away. The two Oklahoma farms were incumbered by mortgages.
    On June 5, 1923, Courton and his wife went to the office of a lawyer in Oklahoma, in a town near where his farms were situated, and had him prepare three deeds, using Oklahoma forms. One deed was made in favor of Clarence C. Courton, purporting to convey to him the forty acres of land in controversy in Benton County, Arkansas. This deed was signed by Izora B. Courton, and neither the deed nor the certificate of acknowledgment contained any reference to her homestead or dower in the land. Another deed purported to convey ninety acres of the Oklahoma land to Clarence C. Conrton. This deed was also signed by Izora B. Courton. A third deed was executed by Clarence C. Courton to Izora B. Courton, conveying to her the remaining sixty acres of the Oklahoma land. Courton and wife took all three of these deeds home with them, and that night it was decided that all the lands 'referred to should be traded for land in Kansas, where the'Courtons had formerly lived. To carry out this plan, it was decided to erase the name of the grantees as written in the deeds, and Clarence Courton was given verbal'permission by his wife to insert the name of the grantee when he should trade for the- Kansas land near their old home. Pursuant to this plan, all three deeds were turned over t-o Clarence C. Courton, and he carried them to Kansas with him, and stayed there about a month without trading for any land. In. the meantime his wife remained on their-farm in Oklahoma.
    In the early part of July, 1923, Clarence Courton left Kansas in an automobile with L. E. William's and J. R. Lloyd, and went to Flagler, Colorado. After they arrived at Flagler, Lloyd introduced Clarence C. Courton to Clyde V. Seale, and Courton agreed to trade his Benton County land for a tract of land in Colorado. In order to carry out the trade, Courton delivered to Seale the deed for- the Benton Countv land, in which the name of the grantee had been left blank, and, signing the deed himself, authorized the notary who took his acknowledgment to insert the name of Clyde V. Seale as grantee in the deed. This was done. LI03ml and Williams were present, and knew about the trade between Seale and Courton for the Benton County land. On the next da3g which was the 12th day of July, 1923, Williams purchased the Benton County land from Seale and received a quitclaim deed therefor.
    Mrs. Izora- B. Courton refused to give up possession of their homestead in Benton County to Williams, and repudiated the transaction entirely. She joined with her husband in bringing this suit to cancel the two deeds to the Benton County land above referred to.
    Other facts are shown in the record, but, inasmuch as they have no bearing on the issue raised by the appeal, they need not be stated.
    The chancellor, among other things, found that the deed to the Benton County land, delivered by Clarence C. Courton to Clyde Y. Seale, had no g*rantee named in it, and that it was delivered without the knowledge or consent of Izora B. Courton, and that said land was at the time the homestead of Clarence C. Courton and Izora
    B. Courton, his wife. The court held that the deed was void because it had the name of no grantee written in it at the time of its delivery. A decree was entered of record in accordance with the findings of the chancellor, and to reverse that decree L. E. Williams has duly prosecuted an appeal to this court.

      Williams S Williams and Tom Williams, for appellant.

      A. L. Smith, for appellee.
   Hart, J.,

(after stating the facts). The record shows that the forty-acre tract of land in controversy in Benton County, Arkansas, was the homestead of Clarence C. Courton and Izora B. Courton, his wife. Izora B. Courton first signed a deed conveying said land to her husband, and an Oklahoma form, which neither mentioned her homestead nor her dower, was used. Subsequently it was decided to erase the name of Clarence C. Courton as grantee in the deed and to leave the name of the grantee blank. When Clarence C. Courton made the trade with Clyde Y. Seale and delivered the deed to him, the deed was blank as to the grantee. This court has held that an instrument purporting to be a deed, in .which a blank has been left for the name of the grantee, is not operative, and that written authority to fill in the blank is necessary.

In Adamson v. Hartman, 40 Ark. 58, the court said: “An instrument of writing, purporting to be a conveyanee, signed and acknowledged by the grantor, and otherwise in good form, does not become his deed until the name of■ the grantee and the amount of the ■ consideration are inserted therein. And an agent cannot fill such blanks in the grantor’s absence, unless his authority is in writing. ’ ’

Numerous cases are cited in support of the decision, and, whatever may be the rule elsewhere, it is settled in this State that the instrument in question could not become the deed of the grantor unless the name of a grantee was inserted, and that that act could not be performed by an agent, in the absence of the principal, unless his authority was in writing. It is not claimed that Clarence C. Courton had any written authority to insert the name of Clyde V. Seale as grantee.

The chancellor found that the forty-acre tract of land in question was the homestead of Clarence ,C. Courton and his wife. His finding in this behalf is supported by the evidence in the record. Under our statute, Clarence C. Courton could not convey the homestead without his wife joining in the deed. Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433; Ferrell v. Wood, 149 Ark. 376, 232 S. W. 577, 16 A. L. R. 1033; and Miles v. Jerry, 158 Ark. 314, 250 S. W. 34.

It follows that the decree of the chancellor was correct, and it will be affirmed.


author: Smith, J.

text:
    Coleman v. Wegman.
    Opinion delivered November 15, 1926.
    1. Trusts — agreement to purchase for another. — The general rule is that a mere verbal agreement by which one of the parties thereto promises to buy in at judicial sale lands of the other and hold the same for his benefit does not create a resulting or implied trust, the agreement itself being- within the statute of frauds, but such rule is subject to the exception that, where the purchaser buys land in which another is interested, under such a state of facts as would make it a fraud to permit him to hold on to his bargain, a trust will be raised.
    2. Trusts — sufficiency of evidence. — To create a trust in favor of' , plaintiff in property purchased by defendant under oral agreement to take title and permit plaintiff to repurchase it, the evidence must be clear, satisfactory and convincing.
    3. Trusts — sufficiency of evidence. — Evidence held insufficient to establish a constructive trust.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    affirmed.

      Cravens & Cravens, for appellant.
   Smith, J.

Appellant filed a complaint against appellee, in which she alleged that, prior to the 19th day of September, 1924, she was the owner of a certain house and lot in the city of Fort Smith, upon which she had executed a mortgage to secure an indebtedness of $350 due by her to the Lyman Real Estate Company, hereinafter referred to as the company. This indebtedness matured, and was not paid, and the mortgagee had obtained a decree of foreclosure, pursuant to which the commissioner appointed by the court in the foreclosure proceeding sold the property on the date above named. The mortgagee was the purchaser at the commissioner’s sale, and, after the sale had been confirmed and a commissioner’s deed executed, conveyed the land to appellee, Mrs. Wegman. It was alleged that appellant had agreed with Mrs. Wegman that this should be done, and that the company had agreed that it would bid in the lot and, after, obtaining the commissioner’s deed, would convey to Mrs. Wegman, who would then convey to appellant, for the amount of the mortgage debt and interest and the costs of the foreclosure proceeding and sale, and that, pursuant to this agreement, the company conveyed to Mrs. Wegman. Thereafter appellant tendered to Mrs. Wegman the sum agreed upon, but Mrs. Wegman declined to accept the tender. There was a prayer that Mrs. Wegman be declared a trustee for the benefit of appellant, and that she be required to convey to appellant upon payment of the agreed amount of money. Appellant offered testimony which supported the allegations of her complaint, and she was corroborated by Mr. Lyman, the president of the real estate company, who testified that it was agreed that, after purchasing the lot, the company would then convey the property to Mrs. Wegman and take a mortgage back from her to secure the purchase price, and that Mrs. Wegman would, then convey to appellant.

In addition to this testimony, John Bennett, a witness for the appellant, testified that, before the sale, appellant came to him to have witness buy in the property for appellant, and he told her that he would do so if she could not procure some one else to buy it in.1 Witness did not have the money necessary to do so, but could have procured it, and would have done so, had appellant renewed her request.

Mrs. Wegman was given by the company what was called a payment book, in which payments were noted when made to the company. Mrs. Wegman turned this book over to appellant, who collected one or more month’s rent on the property from the tenant who was in possession, and paid the same to the-company.

Mrs. Wegman denied that she had told Lyman that she would buy the property for appellant, and testified that, on the morning of the foreclosure sale, she told appellant that she had better attend the sale and protect her interests. Witness did not attend the foreclosure sale, but, when she found that the mortgagee had purchased the property,' she bought it for herself, because she thought it was worth more than she paid for it. She testified that she gave the payment book to appellant to collect the rent on the property. Appellant was a colored woman, and the property was located in a neighborhood occupied by colored people, and she paid appellant a commission to collect the rents and turn them over to the company, to be credited in the payment book as part payments on the purchase'price secured bj^ the mortgage.

Daisy Jones, a colored woman, testified that she was employed by Mrs. Wegman as a servant in her home, and that, on the day the property was sold, she heard a conversation between appellant and Mrs. Wegman, in which Mrs. Wegman told appellant that she had better attend the sale and protect her interests, for the reason that she (Mrs. Wegman) was not going .to buy the place for her, and if appellant did not buy it she would lose it forever.

The court below delivered a written opinion in the case, in which the testimony is reviewed, and a finding of fact was announced that Mrs. Wegman had bought the property from the company after the sale, “just as any other person would or could have done in her own right,” and, upon this finding, the complaint was dismissed as being without equity.

For the reversal of this decree appellant relies upon the case of Strasner v. Carroll, 135 Ark. 34, 187 S.W. 1057, in which ease it was said: “It is true the general rule'is that a mere verbal agreement by which one of the parties thereto promises to buy in, at a judicial sale, lands of the other and hold the same for his benefit, does not create a resulting or implied trust, the agreement itself being within the statute of frauds. There are, however, several well recognized exceptions to the rule, and one of them is that where the purchaser of lands in which the other is interested becomes such under such a state of facts as would make it a fraud to permit him to hold on to his bargain. Trapnall v. Brown, 19 Ark. 39; McNeil v. Gates, 41 Ark. 264; LaCotts v. LaCotts, 109 Ark. 335, 159 S. W. 1111. In the first two mentioned cases the principle is announced that it would be a fraud in a purchaser, who obtained property at a price greatly below its value by means of a verbal agreement, to keep the property in violation of the agreement.”

We have concluded, however, that, while appellant would be entitled to the relief prayed if the testimony was sufficiently certain to warrant it, the relief here prayed must be denied because the testimony does not measure up to the standard essential to grant such relief.

In the recent case of Kavanaugh v. Morgan, ante p. 11, it was said: “Appellant contends for the reversal of the decree because the evidence is not full, clear and convincing enough to have warranted the trial court in decreeing a trust 'eco. maleficio. The requirements of the rule in such cases announced in Tiller v. Henry, 75 Ark. 446, and recently approved in Eason v. Wheeler, 167 Ark. 320, are as follows: ‘Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. ’ Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring it ‘to be clearly established.’ * * * Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting-sands. ” '

It appears therefore that appellant would not be entitled to the relief prayed unless the showing had been made by testimony which was clear, satisfactory and convincing that Mrs. Wegman had agreed that she would take the title in her own name, with the understanding that appellant might repurchase the same, and that, because of this agreement and in reliance upon it, appellant did not make an arrangement which she otherwise would have made to protect her interests in the land. The court below found the facts against appellant’s contention, and we are unable to say that appellant has sustained her contention by testimony which is clear, satisfactory and convincing, and for this reason the decree of the court below will be affirmed.