author: Wood, J.

text:
    O’Bryan v. Zuber.
    Opinion delivered April 20, 1925.
    1. FRAUDS, STATUTE OF — NECESSITY OF PLEADING. — Where plaintiff sued on an alleged contract of partnership between himself and defendant, whereby defendant was to take title to land in his own name, for the benefit of himself and plaintiff as partners, and defendant specifically denied the existence of such a contract, it was unnecessary for defendant to .plead the statute specially, as it devolved on plaintiff to prove that the contract was in writing.
    2. Frauds, statute of — contract to buy land. — An oral contract whereby defendant was to take title to land in his own name and hold same for the benefit of himself and plaintiff, plaintiff paying no money, was within the statute.
    3. Frauds, statute of — contract to buy land. — In a suit toy plaintiff on an alleged oral contract of partnership by which defendant was to take title to land in his own name and hold same for the benefit of himself and plaintiff as equal partners, evidence held not to establish such a partnership as to the ownership of the land as would take the contract out of the frauds.
    4. Trusts — resulting trust. — An oral contract by which defendant was to take title to land in his own name for «the benefit of himself and plaintiff, under which the land was purchased •in defendant’s name and with his money, and plaintiff executed no written obligation to defendant for his half of the purchase money, held not to. create a resulting trust.
    5. Frauds, statute of — agreement to cultívate land. — An oral agreement between plaintiff and defendant that certain land purchased in defendant’s name was to toe operated and cultivated by them for their joint benefit was not within the statute of frauds to that extent, though within the statute so far as it provided that plaintiff should have an interest in the land.
    Appeal from Pike Chancery Court; C. E. Johnson, Chancellor;
    reversed in part.

      Snodgress & Snodgress and J. C. Marshall, for appellant.

      W. T. Sage ¡and J. N. Sage, for appellee.
   Wood, J.

This is an action by the appellee against the appellant in the Pike Chancery Court. The appellee alleged in his complaint that, on or about April first, 1923, he and the appellant associated themselves together as partners for the purpose of buying, cultivating and operating certain lands in Pike County, Arkansas, consisting of 123.95 acres; that each should pay one-half of the purchase price of the land and share equally in the expense and profits in the cultivation and operation of the lands; that, pursuant to the agreement, the lands were purchased by them, title being taken in the name of the appellant in trust for the partnership; that, during the year 1923, peach orchards on the lands produced peaches of the gross value of $11,100; that the expenses incurred in cultivating the orchards and gathering and marketing the crop amounted to $3,200, leaving a net profit accruing to the partnership of $7,900; that appellee was entitled to receive one-half of such profit, amounting to the sum of $3,950; that appellant had repudiated appel-lee ’s interest in the partnership and had thus converted to his own use appellee’s share of the profits. Appellee further alleged that he borrowed from appellant the sum of $1,500 at the time the lands were purchased, for which he agreed to pay the appellant eight per cent, interest from April 1, 1923, until the same was paid; that appellant was entitled to a set-off in the sum of $1,500 at eight per cent, interest from April 1, 1923, against the $3,950, appellee’s share of the profits, leaving a balance due appellee from the appellant in the sum of $2,450. Appellee prayed for an accounting and a sale of the lands mentioned, and a division of the proceeds as their interests might appear, and for judgment against the appellant in the sum of $2,450, and that same be declared a lien upon the appellant’s interest in the partnership. The appellant in his answer denied the allegations of the complaint.

The appellee testified substantially as follows: He and the appellant were both employed by the American Refrigerator Transit Company. Appellee and appellant agreed to associate themselves together for the purpose of buying 123 acres of land in Pike County, about thirty-three acres of which was a peach orchard. In pursuance of such agreement, they purchased the land about April 1, 1923, from the Caddo River Lumber Company, for a consideration of $3,000. Tbe agreement between the appellant and appellee concerning the purchase of the land was oral. The appellee did not have the money to pay his part of the purchase price, and the appellant suggested that he would let appellee have the sum of $1,500, for which the appellee was to pay interest at the rate of eight per cent. The agreement between them was that they should purchase the land and each one own an undivided half interest in it. Appellant was to pay $1,500 and appellee $1,500. The deed was made out in appellant’s name. Appellee further testified in detail to the effect that he had agreed to superintend the application of the spraying material on the orchard, and that he did so until the time the appellee’s son came down on his vacation in June and relieved the appellee of supervision. There was no agreement between appellee and appellant to the effect that appellee was to be paid a salary for his services in connection with the peach crop. There was no agreement as to the time that either party would devote to the crop. On July 3,1923, appellee had an operation for appendicitis, and, a few days after his release from the hospital, appellant advised appellee that the latter had not fulfilled his part of the transaction, and that appellee could either accept the pro rata payment of the amount he had put in on the orchard for expenses or drop out of it altogether. This occurred the day before the crop started moving. Appellee stated that the approximate value of the land was the sum of $3,000. On cross-examination he stated that appellant loaned him the $1,500 when the deed was made over in appellant’s name. Appellant did not take any note or written memorandum as evidence of the loan. Appellant never gave the money representing the purchase price of the land into appel-lee’s hands. The appellant purchased appellee’s part of the land, and appellee was to pay him from the proceeds of the crop the principal sum of $1,500 plus eight per cent, interest, after the crop was harvested. If the crop had lost $10,000, appellee considered himself morally obligated to fulfill Ms part of the agreement. Appellee did not claim that appellant actually loaned him $1,500 to pay for his half of the property. Appellee was to pay the appellant the $1,500, after the crop had been sold, out of appellee’s half of the net proceeds of the crop. Appellee gave no security to appellant except his moral obligation to pay from appellee’s half of the net proceeds or profits. The appellee was present when the arrangements were made for the purchase of the farm in controversy, but was not present when the appellant paid the cash for the land and the deed was turned over to appellant. Appellee had seen the deed. The appellee had no information about the cost of producing the crop or the gross or net return, except that given him by the appellant. All appellee had actually put into the farm or the peach orchard in actual cash was the sum of $338, which appellant had returned to the appellee. If appellant had not suggested to appellee that he would advance the $1,500 for appellee, appellee would have arranged otherwise to secure the money.

John T. Stinson testified that he was director of agricultural development for the Missouri Pacific Eailroad Company, and that he was acquainted with the parties to the action and with the land in controversy. He made a trip with the parties, inspecting the orchards and strawberry fields. At that tim& they inspected the orchard in controversy. Previous to that time witness had an arrangement with the appellee by which they hoped to purchase the orchard jointly, and witness and ap-pellee had made an offer for the same, but afterwards witness found that he could not raise the money to pay for his half. On the day witness and the parties to the action went to inspect the orchard, witness remained at the motor car while appellee and appellant made the inspection. After the inspection, appellee and appellant went into the office of the Caddo Company, and, when they came out, witness asked appellee, in the presence of the appellant, if they had purchased the farm, and appellee answered in the affirmative. “Witness then) asked appellant if lie was going in with the appellee on the purchase, and talked with the appellant about the prospects of the peach crop, etc., and the appellant answered that he was going in with the appellee on the purchase. Witness had conversed with the appellant a number of times since the purchase, during the summer, in his office, because witness was interested in the proposition. He had endeavored to purchase a half interest in it, and was naturally interested in the outcome. He never lost an opportunity to ask appellant how things were coming. Witness was asked the following question: “In speaking to him (appellant) about that orchard after that, did you refer to it as the property which he and Mr. Zuber had purchased?” Witness answered, “I never dreamed of anything else. Q. Well, did he (appellant) ever deny that to you? A. Oh, never. Q. Or did he ever claim to you that Mr. Zuber didn’t have any interest in it? A. No, no.” Further on the witness stated that the appellant furnished appel-lee half of the money at six per cent, to purchase the land, under an iron-clad agreement that appellant would carry the appellee, so that appellee would not have to go outside to get the money. The iron-clad agreement witness referred to was a “gentlemen’s agreement.” Witness didn’t know of any agreement in writing between the parties. It was a verbal agreement. Witness was under the impression, from his conversation with the appellant, as well as with the appellee, that it was a company orchard. Witness knew the appellee to be a man on the square, who could go out in Little Rock and get the money, and who would carry out his agreement.

Kelley testified that he was a lawyer. He had no interest in the subject-matter of the litigation. His opinion concerning the agreement between the appellant and the appellee as to the purchase of the land in controversy came from a statement made by them in his presence about the middle of July, 1923. Witness, at the appellee’s request and in his interest, went with him to see the appellant. Witness penciled the memorandum of the agreement as it was stated by the appellee and admitted by the appellant. Appellee stated that he could pay his half of the purchase price the next day if necessary, as he did not intend to lose his half interest. It was agreed that this was not necessary, as appellee’s half of the purchase price and the expenses would be taken from the returns of the fruit crop, and the balance was to he divided pro rata 'between them, and thereupon the appellant was to make the appellee a deed to appellee’s half interest in the property. It was agreed that appellant should furnish the appellee the money at eight per cent., and appellee should repay him and attend to the orchard. It was stated in the conversation that it was the previous agreement between the parties that each should have a half interest in the property. Appellant admitted that the property was purchased in that way. The appellee and the witness had made arrangements to borrow $1,500 cash from Mr. Sterling Tucker, president of Fones Hardware Company, to pay appellee’s part of the purchase money. Witness jotted down a statement of the prior agreement reiterated that day, for the purpose of future reference. At the time of this conference one carload of peaches was ready for shipment, and the parties estimated that there would be eleven or twelve cars.

Lee Cazort testified that he was acquainted with the parties to the action; that he was in appellant’s office about the first of June, 1923; that he went there to carry a piece of a spraying machine that appellee had asked him to bring down. Witness and appellant conversed for some time about the orchard. Appellant stated that he and appellee had bought the orchard in partnership. The details of the transaction he did not relate to the witness. Witness understood from the conversation that appellant' and appellee had bought the ■orchard .jointly. In another conversation with appellant, the day before witness testified, appellant stated to witness that the appellee had no interest as a partner; that they had only bought the crop together.

The appellant 'categorically denied the testimony of the appellee and his witnesses as to the purchase of the land jointly by appellant and the appellee. The appellant testified that he alone purchased the land and paid for it; that appellee had nothing to do with the purchase. There was no agreement between them as to the place whatever. The appellee agreed to go down and look after the spraying and cultivation of the peach crop. He was to be paid for this work in proportion to the money he put up. He was not to receive any interest in the property, but only an interest in the net proceeds of the crop, if there were any. If there had been no net proceeds, then appellant and appellee would have lost what they spent on the crop. Appellant reimbursed appellee for what he put in, and appellant owed him about ten per cent, of the net proceeds. Appellee gave the correct figures as to the proceeds of the crop. The appellee did not faithfully perform his contract to look after the spraying and cultivation. The orchard was not properly cared for; it did not get the proper spraying during the month of May. Appellant sent his son down on June 6, 1923.

The testimony of appellant’s son, and also of a witness by the name of Oscar Raines, who was in the employ of the appellant, in looking after the orchard, cor-robated the testimony of the appellant to the effect that the appellee did not properly spray the orchard; that, on account thereof, the orchard did not yield the crop it would have done had it been properly sprayed.

The court found that the appellant and the appellee, on the first of April, 1923, associated themselves together as partners for the purpose of buying the land in controversy and that they did so purchase the land; that the deed, on the 19th of April, 1923, was executed to the appellant, and he was vested with the legal title in trust for the partnership; that it was agreed that each should own a half interest in the land; that appellant paid the purchase price for $3,000 and loaned the appellee $1,500 to pay his part of the purchase price, on which appellee was to pay interest at the rate of eight per cent, per annum; that the crop for the year 1923 netted the sum of $4,900, and that the appellant owed the appellee $2,450, with interest, of $41.08, leaving a balance due the appellee, with interest, from the date of the decree in the sum of $884.27. The court thereupon entered a decree in favor of the appellee against the appellant for that sum, and declared the same a lien on the real estate described in the complaint, and decreed that the partnership he dissolved and that the lands mentioned in the complaint he sold and the proceeds be equally divided between the parties; that appellant pay the expenses and costs and also pay the appellee the sum of $884.27 out of his half of the proceeds of the sale. From that decree is this appeal, and the appellee cross-appeals.

The appellee, by the allegations of his complaint and the testimony adduced in his behalf, seeks to establish an interest in certain lands described in his complaint, which he claims were purchased under a contract of partnership between appellant and appellee by which the appellant was to take the title in his own-name for the benefit of himself and appellee as equal partners. The appellant, in his answer, specifically denies that there was any such contract.

In Stanford v. Sager, 141 Ark. 458-466, we said: “Where a defendant in his answer denies making the contract which plaintiff declares on and seeks to have specifically performed, it is not necessary in such case for the defendant to specifically plead the statute of frauds, for the reason that it devolved upon the plaintiff to show that he had a valid contract as alleged.” We cited the cases of Wynne v. Garland, 19 Ark. 23, and Trapnall’s Admr. v. Brown, 19 Ark. 39. In the latter case we held, quoting syllabus: “Where the defendant denies the agreement or contract relative to the real estate alleged in the bill, it is not necessary for him to insist in his answer upon; the statute of frauds as a bar.”

Taking the allegations of the complaint as a whole, it was tantamount to an action for a specific perform-anee of an alleged partnership agreement by which the appellant and the appellee were to parchase a certain tract of land in Pike County, Arkansas, as partners, and operate and cultivate the same as such. The complaint, in effect, alleged that the contract had been performed in part by the purchase and cultivation of the lands, but that the appellant refused to further carry out the partnership agreement by recognizing appellee’s right and title to a half interest in the land as well as in the net proceeds of the fruit crop produced thereon; and appellee prayed in effect that the chancery court require appellant to complete the performance of his contract by an accounting and a sale of the lands, and that the appellant be required to pay over to appellee a half interest of the proceeds from the sale of the lands, and also that appellee have a decree for his half interest in the net proceeds of the fruit crop, and that this decree be declared a lien upon the appellant’s half interest in the land. The appellant, having denied specifically in his answer that there was any contract of partnership for the purchase of the land in controversy, it was unnecessary for him to plead the statute of frauds, because it devolved upon the appellee to prove that the alleged contract was in writing under which he claims the appellant had agreed to advance the purchase money for the joint benefit of himself and the appellee, in order to establish his title to a half interest in the land. The contract, so far as appellee’s alleged half interest in the lands is concerned, was clearly within the statute of frauds, and the appellant, under the issue raised by the pleadings, as well as the proof, had a right to avail himself of the statute. There is no testimony in this record to warrant a finding that the parties had entered into a contract of partnership for the purchase of the land in order to share in the profits and resale of the land itself. There is nothing to show that the parties contemplated a resale of the land. According to the testimony of the appellee himself, they were to own the land jointly and to share as partners in the operation and cultivation of the land.

The ease therefore does not fall within the doctrine of Beebe v. Olentine, 97 Ark. 390, so as to remove the case, as far as the ownership of the land is concerned, ont of the operation of the statute of frauds. In the case of Schultz v. Waldons, 60 N. J. Eq. 71, 47 Atl. 187, it is held that: “Where there is no previous partnership or joint enterprise between two parties, A and B, and they agree, by parol, that B shall purchase and take title in his own name to a single piece of real estate, and hold the same for the benefit of both, and A contributes no money to the enterprise, and there is not written proof of the contract, the statute of frauds prevents A from successfully claiming an interest in the land.” See also Scheuer v. Cochem, 126 Wis. 209, 4 L. R. A. 427, and case note in which the above case of Schultz v. Waldons is cited, and also the leading case on the subject of Smith v. Burnham, 3 Sumn. 435, Federal Cases No. 13,019. See also McClintock v. Thweatt, 71 Ark. 323.

Now, there was no previous partnership between the appellant and the appellee for the purchase and sale of lands and to share equally in the profits from such transaction. There were no partnership funds created for that purpose. On the contrary, the purchase of the land was the first and only transaction for which it is alleged the partnership was formed. The evidence is not sufficient to establish a partnership, so far as the ownership of the land is concerned, so as to take the case out of the statute of frauds. See Nestor v. Sullivan, 111 N. W. (Mich.) 85, 9 L. R. A. 1106; Norton v. Brink, 110 N. W. (Neb.) 669, 7 L. R. A. 945.

Nor, under the facts of this record, can it be said that the appellee had established a resulting trust in his favor to an undivided half interest in the lands. The most that the appellee’s own testimony proves in regard to the purchase and ownership of the real estate is that he and appellant were to purchase the land jointly as partners; that appellant was to advance the money to pay appellee’s half of the purchase price, for which he was to pay interest at the rate of eight per cent.; that the land was purchased in appellant’s name and with his money, and that the deed was taken in appellant’s name; that appellee executed no note or other written obligation ■ to appellant for his half of the purchase money. At one place in his testimony the appellee, in answer to a question, stated that he did not claim that appellant actually loaned him the money to pay his half of the purchase price of the land. Appellant paid the purchase price, and the appellee was to repay him, with interest from his half of the net proceeds of the crop of 1923. It will thus be seen that the appellee neither paid any money nor entered into any written obligation evidencing a contract to pay money to the appellant for his alleged half of the purchase price before or at the time the deed to the appellant was executed; nor was there any agreement between them to the effect that appellant, when the deed was taken in his name, should have a lien on appellee’s alleged half interest in the lands as security for the money alleged to ..have been advanced by appellant for the appellee. The appellee himself testified that he was only under a moral obligation to pay out of his half of the proceeds of the crop. Such ¡security was in futuro et nubibus, and was no security at all. This testimony was not sufficient to constitute a resulting trust in favor of the appellee to an undivided half interest in the land.

In Reeves v. Reeves, 165 Ark. 505, it is said: “In order to constitute a resulting trust, the purchase money, or a specified part of it, must be paid by another, or secured by another, at the same time or previously to the purchase, and must be a part of that transaction.” See also Pumphrey v. Furlough, 144 Ark. 219; Bland v. Talley, 50 Ark. 71. A succinct statement of the doctrine is found in McGovern v. Knox, 21 Ohio St. 547-552, where it is said: ‘ ‘ The foundation of a resulting trust is the payment, or the securing to be paid, by the cestui gue trust, out of his own means, [of] the consideration of the conveyance, or some part thereof, at its completion.” 15 Am. & Eng. Enc. (2nd. ed.) p. 1145; Furber v. Page, 143 Ill. 622; De Roboam v. Schmidtlin, 50 Ore. 388.

It does not follow, however, that, because there was no resulting trust in favor of the appellee for an undivided half interest in the lands and no enforceable contract of partnership between the appellant and appel-lee whereby appellee had title to an undivided half interest in the land in controversy, there was likewise no enforceable contract of partnership between appellee and appellant whereby the appellee was entitled to a half interest in the net profits of the products of the land for the year 1923. The contract was a severable one. See McClintock v. Thweatt, supra. As we have seen, the statute of frauds precludes the appellee from enforcing’ the alleged contract of partnership by which he was to acquire an undivided half interest in the fee to the lands in question. But the trial court found, not only that there was a partnership entered into between the parties for the purchase of the land, but also that “it should be cultivated and operated by the partnership for the joint benefit of both parties. ” We are convinced that.. these finding’s of fact are sustained by a preponderance of the evidence, and that the contract is enforceable as to the operation and cultivation of the land.

In Personette v. Prynne, 34 N. J. 26, it is held that a parol agreement of partnership for working lands is not within the statute of frauds. In Everhart’s Appeal, 106 Pa. 349, it was alleged that there was a partnership business in the buying and selling of lands for the purpose of carrying on a farm, and the prayer of the complaint was that one of the alleged partners be required to account to the other for a “one-half part of the net profits and gains arising from said business and to convey one-half part of the lands remaining unsold.” The court held that one of the partners could not establish his interest in the lands by parol evidence, where the statute of frauds was set up, requiring agreements relating to lands to be in writing, and further held that that rule did not apply to an agreement for a division of the profits arising from a sale of the lands so purchased by the partnership. We have recognized this doctrine where there was a partnership established for the purchase and sale of lands. McClintock v. Thweatt, supra; Beebe v. Olentine, supra. In both these cases we held that a contract of partnership to divide the profits arising from the sale of lands was not within the statute of frauds, and could be enforced. The doctrine of the above cases is applicable here to that part of the complaint of the appel-lee which seeks an accounting and a specific performance of the contract to divide the profits arising out of the cultivation and operation of the lands in controversy during the year 1923. See also Bates v. Babcock, 16 L. R. A. 745, and cases cited in note. The authors of the note in that case, speaking of an oral agreement for a partnership in the profits of buying and selling real property, say: “As a rule, contracts for such partnership are held valid, and all suits recognizing the existence of the partnership and seeking relief, which may be legitimately sought by a partner, are upheld, while, on the other hand, parol contracts for an interest in land are ignored and suits brought to enforce them dismissed, although they may constitute a part of the partnership agreement.”

The trial court found, and the finding is sustained by a preponderance of the evidence, that the net profits accruing to the partnership from the peach crop produced on the land for the year 1923 was the sum of $4,900, and that therefore appellant was due the appellee the sum of $2,450 for his share of such crop, and that appellant should have paid to the appellee his proportion of the profits not later than September 1, 1923. While this is not an action for the profits derived from the partnership in the buying and selling of lands, it is an action for the profits derived from a partnership in the operation and cultivation thereof. If an accounting for the former is authorized, and it is according to the doctrine of the above cases, then, a fortiori, is an accounting in the latter authorized.

It follows that the trial court erred in entering a decree the effect of which was to hold that the appellee had an equal interest with the appellant in the lands in controversy and in directing an accounting between the parties pursuant to such holding. The trial court instead should have entered a personal decree in favor of the appellee against the appellant for his half interest in the net profits from the peach crop of 1923, which, according to the testimony abstracted by counsel for both parties, was the sum of $4,900. The decree therefore should have been in favor of the appellee for the sum of $2,450, with interest'at the rate of six per cent, from the first of September, 1923. The decree is therefore reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Kellar.
    Opinion delivered April 20, 1925.
    Appeal and erroR — admission op incompetent evidence — harmless error. — Error of the court in admitting the testimony of a child under ten years of age, in violation of Crawford & Moses’ Dig., § 4146, is cured by emphatic and unmistakable direction to the jury to disregard such testimony for all purposes, where there was other testimony sufficient to sustain the verdict.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge; affirmed.

      Thomas B. Pryor and. Vincent M. Miles, for appellant.

      Edward Gordon, for appellee.
   Wood, J.

This is an action by the appellee, the father and next friend of Cecil Faye Kellar, a minor, against the appellant, to recover damages for a personal injury. Cecil Faye Kellar was offered by his counsel as a witness. Thereupon counsel for appellant stated that he was not familiar with the statute, and asked counsel for appellee what was the age of the witness. Counsel for the appellee then asked the witness his age, and witness stated that he was nine years old. The court then read the statute prescribing that “infants under the age of ten years, and over that age if incapable of understanding the obligation of an oath, shall be incompetent to testify. Section 4146, Crawford & Moses ’ Digest. The court then asked the attorney for the appellee if he insisted on talcing the testimony, and, upon an affirmative answer, the court instructed him to proceed. Counsel for appellant thereupon objected, and the court stated that he was of the opinion that the testimony was incompetent, hut he would reserve a ruling until later, and, in the meantime, the witness might proceed with his testimony.

Several other witnesses testified on behalf of the appellee and the appellant. At the conclusion of all the testimony the record shows the following occurred:

“Mr. Miles, attorney for defendant: Here is what I want. At the conclusion of the testimony, counsel for the plaintiff agreed with the court that the court should exclude the evidence of this witness (Cecil Faye Kellar), and that they would not save an exception to the action of the court in that regard. The defendant stands on its former objection and exception to the testimony of Cecil Faye Kellar.
“By Mr. Gordon, for plaintiff: Let the record show that the defendant did not, at the conclusion of the testimony, request the court to rule upon the question of whether the testimony of Cecil Faye Kellar was admissible or ask any instruction of the court upon that question.
“By Mr. Miles: The defendant, at the conclusion of all the testimony in the case, asks the court, if it changes its former ruling and holds that the testimony of Cecil Faye Kellar is incompetent, to withdraw the case from the jury and declare it a mistrial, because the testimony of Cecil Faye Kellar is incompetent. The defendant has objected and saved its exceptions. If the court lets the case go to the jury with the exception, the defendant is satisfied. If the court withdraws the testimony from the jury, the error already committed cannot be cured, and the defendant asks the court to declare a mistrial and continue the case for the term.
“Puling by the Court: Gentlemen of the jury, the court reserved a ruling on the admissibility of the evidence of the little boy, who was shown to be nine years old, I believe, by some of the testimony; and Mrs. Kellar his mother, testified that he was eight years old when he was injured, but he is nine years old now. The law provides that, in civil cases, an infant under ten years of age is not capable of testifying. The court has notified the attorneys .of his opinion on that; and the attorney for the defendant in this case asks the court to declare a mistrial, and the court overrules that request, and instructs you not to consider that testimony at all for any purpose, because it is inadmissible. It isn’t the law. And if it were to go to you without this admonition, why, the court is of the opinion that the Supreme Court would reverse the case if you found a judgment in favor of the plaintiff — that it would be reversible error, and the court made a mistake in permitting it to be introduced until he further investigated it. And, on further investigation, the court is convinced that he was right in his first impression, declaring it incompetent. There may be some difficulty some time to eradicate from the mind the impression that is made from testimony that is already introduced. The court tells you now to disregard everything that the little boy who was injured, or alleged to have been injured — disregard everything that he said in his testimony, because it was a mistake in admitting it in the first place. ’ ’

The jury returned a verdict in favor of the appellee in the sum of $500. The court rendered judgment against the appellant for that sum, from which is this appeal.

Two witnesses testified, corroborating the testimony of young Kellar, to the effect that he was at the railroad •crossing, waiting for the train to pass, when the employees on the engine caused the steam tobe emitted therefrom that caused the injuries to young Kellar. If there had been no other testimony than that of young Kellar himself as to the place and manner of his injury, then, to be sure, the rulings of the trial court, as disclosed by the above record, would be prejudicial error. But the erroneous ruling of the trial court in permitting* the witness to testify, and any effect that such testimony might have had on the minds of the jury in favor of the appellee, were completely eradicated by the emphatic and unmistakable direction of the court to the jury to disregard everything that young Kellar had said, and not to consider his testimony at all for any purpose. To hold otherwise, it occurs to us, would be to impeach the jury of a lack of that intelligence and impartiality which the ordinary .juror always is presumed to possess.

We see nothing in the conduct of the counsel for appellee or the trial court that is calculated to prejudice the rights of the appellant. The error was not of that flagrant character which could be said to have inflamed the minds of the jurors and aroused their passions or prejudice so as to cause them to disregard the trial court’s instructions, which they were sworn to obey. The facts do not bring* the case within the doctrine of the exceptional class of errors at the trial recognized in the case of Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256-70, relied upon by appellee. The judgment is therefore correct, and it is affirmed.


text:
    Maloy v. Maloy.
    Opinion delivered April 20, 1925.
    Appeal and ERROR — conglusiveness of chancellor’s findings_ Where the Supreme Court finds that it is wholly unable to determine Where the preponderance of the evidence lies, it treats the findings of the chancellor as persuasive and adopts such findings as its own.
    Appeal from Stone Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      J. Paul Ward, for appellant.

      Ben F. Williamson and Ben B. Williamson, for appellee.
   Wood, J.

This is an action by the appellant against the appellee in the Stone Chancery Court. The appellant alleged that he and the appellee were the sole owners of certain tracts of land in Stone County, amounting in all to 283.61 acres, which are described in the complaint. The appellant alleged that he owned an undivided three-fourths and the appellee an undivided one-fourth ,• that it would be to the interest of the parties to have the lands partitioned, and prayed that this be done by a division in kind, but, if this could not be done, the lands be sold and the proceeds divided between them in proportion to their respective interests.

In his answer the appellee admitted the allegations as to the ownership and that it would be to the best interest of the parties to have the lands divided, and that they were .susceptible of subdivision. Appellee, by way of cross-complaint, alleged that there was due him the sum of $900 for improvements on and care of the farm for five years.

The court entered an order for a partition of the lands according to the respective interests of the parties, and appointed commissioners to make the partition. The commissioners made their .report to the court, setting up a description of the lands as divided between the parties respectively. They allotted to the appellant 211.61 acres and to the appellee 72 acres. A plat containing a description of the respective allotments was filed as a part of the report of the commissioners. Exceptions were filed by the appellant to the report of the commissioners, setting forth, first, that the lands were divided in quantity without taking into consideration the quality of the lands; second, that the lands allotted to appellant were in seven fields, on which there were four water-gaps, and that the lands were washed and worn, whereas appellee’s lands were in one fertile field with fewer water-gaps; third, that none of the uplands susceptible of cultivation were given to appellant, while fifteen acres of such lands were given to the appellee; fourth, that the lands allotted to the appellant were fenced with “old rotten rails,” while that allotted to the appellee was fenced with woven wire with barbed wire at the top, which was comparatively new; fifth, that appellant was entitled to lands of three-fourths the total value and appellee to one-fourth, but the commissioners gave the appellant only two-thirds of the total value and the appellee one-third. The appellant further alleged in his exceptions that the lands were not susceptible of division giving to each one his proportionate part, taking quantity and quality into consideration. The appellant prayed that the report of the commissioners be set aside and that the lands be sold and the proceeds divided.

The appellee responded to the petition setting forth appellant’s exceptions, and denied all the allegations thereof. Appellee set up that appellant was not living on the lands, and that appellant wanted to have the lands sold in a body because he realized they would bring a better price if so sold. Appellee alleged that he made his home on the lands, with his four little orphan children, and that, if the lands were sold from under him, he could not take the money realized from his share of the proceeds and purchase another place of the same kind. He alleged that the division made by the commissioners was fair and equitable, and prayed that their report be in all things confirmed.

The appellant and the 'appellee are brothers. The lands in controversy originally belonged to the ancestral estate of their deceased father. Each of the parties joined in the original application for a partition, stating that the land was susceptible of division in kind, but, when the report of the commissioners was made, the appellant filed his exceptions thereto, and stated that the land was not susceptible of division in kind, and prayed that the same be sold and the proceeds divided in proportion to their respective interests. Each of the brothers testified to facts tending to sustain their contentions, as shown in the exceptions to the report of the commissioners and the response to the exceptions. The appellant testified to the effect that the commissioners gave the appellee twenty acres in cultivation off of the west end of the farm, which was about one-fourth of the lands in cultivation, and that these twenty acres were much better land than the tillable land allotted to the appellant; that the lands set apart to appellant are washed in ditches, which is not the case with the lands allotted to the appellee; that, while there were three houses on the land allotted to the appellant, they were all not worth more than the sum of $300; that there were only about nineteen or twenty acres of timber lands worth anything for cultivation, and that of this the commissioners allotted to the appellee fifteen acres, and four or five acres to appellant, whereas the allotment should have been just the reverse; that, during the ydar 1922, appellee raised on the lands allotted to him 342 bushels of corn and the appellant raised on the lands allotted to him 482 bushels; that the appellee gathered 3% bales of cotton and appellant 5y2 bales.

Several witnesses testified to the effect that they had known the land for many years — some of them for more than fifty years; that the lands allotted to the appellee on the west end of the farm were far more valuable than the lands on the east end. One of these witnesses stated that there were only twenty-three acres of fertile land allotted to appellant and seventeen acres of good land allotted to appellee; that twenty acres of the land allotted to the appellant were so poor that they were almost worthless, and that the house, the main building, allotted to appellant was not worth more than $175; that of the uplands three acres were allotted to appellant and fifteen acres to appellee, suitable for cultivation; that appellant got less than two-thirds, whereas he should have had three-fourths of the total value. One of the witnesses stated that he would just as soon have the land allotted to the appellee as all of the land allotted to the appellant. One witness stated that the buildings were worth $250. These witnesses stated that they did not believe the lands could be equitably divided; tbat the lands allotted to the appellee adjoined Ms homestead, which was to the detriment of appellant, resulting in 25 or 30 acres of good land to appellant and 18 or 20 acres to appellee, and about thirty acres of poor land to appellant.

Appellee and his witnesses testified to the effect that the one main building on the place allotted to appellant was worth about $1,000; that the lands adjoining the homestead of the appellee were allotted to him, and, unless it had been so allotted, his homestead would have been of little value. Other witnesses for the appellee testified to the effect that the allotment was fair. They corroborated the testimony of the appellee to the effect that the main house allotted to appellant was worth $1,000; that the other two houses on the farm were worth $300. Another witness testified for the appellee to the effect that all the buildings were worth the sum of $1,100. The effect of the testimony of the witnesses for the appel-lee was that appellant got all the improvements and a fair division of the land in cultivation and in the woods.

The appellee testified in detail concerning the value of the lands and the buildings, and stated that the main building on the land allotted to appellant, including the barn, orchard and garden, were worth $1,000; that, if the commissioners had not given to the appellant the improvements on the land in question, the value of ■appellant’s land would have been lessened by reason of losing the improvement.

The above is a summary of the salient features of the testimony developed at the hearing. After hearing the testimony, the court approved the report of the commissioners and entered a decree approving and confirming same, from which decree is this appeal.

After a careful consideration of the testimony, we are convinced that the findings and decree of the trial court are not clearly against the preponderance of the evidence. It is most difficult, in cases of this kind, where there is a decided conflict in the testimony, to determine where the preponderance lies, and, where this court finds that it is wholly unable to determine where the preponderance lies, it treats the findings of the trial court as persuasive, and adopts such findings as its own. See Leach v. Smith, 130 Ark. 465-470, and cases there cited.

The decree is therefore correct, and it must be affirmed. • It is so ordered.


text:
    Hudson v. State.
    Opinion delivered April 20, 1925.
    1. Homicide — admissibility op dying declaration. — Admission of s. statement of deceased as a dying declaration in a murder case was not error where it was shown that he realized that he was in a dying condition.
    2 Homicide — .harmless error. — Admission of dying’ declaration tending to show murder, if erroneous, was not prejudicial where the jury found defendant guilty of involuntary manslaughter.
    3. Homicide — abstract instruction — prejudice.—Where the evidence in a murder case tended to show that defendant was guilty either of murder or voluntary manslaughter, an abstract instruction on involuntary manslaughter could not have prejudiced the defendant.
    Appeal from Union Circuit Court; L. S. Britt, Judge;
    affirmed.
    If. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Wood, J.

In December, 1924, J. N. Hudson was indicted in the Union Circuit Court for the crime of murder in the first degree in the'killing of one Louie Primm, in Union County, Arkansas. He was tried and convicted of the crime of involuntary manslaughter, and sentenced by judgment of the court to one year in the State Penitentiary, from which judgment he appeals.

The testimony adduced by the State tended to prove that the appellant and Primm had a fight about eight o’clock on Thanksgiving night. The appellant was arrested, and, while he was being carried to the police station, he said to the officer, “Primm jumped on the wrong- boy. I don’t bother nobody, and I will get the son of a b-.” Afterwards, about ten o’clock, the appellant was seen walking back and forth in the space between the sidewalk and the curbing for thirty or forty minutes. As Primm came along, the appellant fired upon him with a pistol. Primm ran, and appellant followed, shooting him until Primm entered the Central Hotel, and appellant fired one shot after Primm got into the hotel. Appellant began shooting at Primm when the latter was about twenty or twenty-five feet from the entrance of the hotel. The appellant fired four shots. Primm did not have a pistol on his person at the time the appellant fired upon him.

The testimony, in brief, for the State tended to prove that, after the fight, which occurred about eight o’clock, between the appellant and Primm, the appellant armed himself and stationed himself on the street, waiting for Primm to come along, in order to kill him. Primm was shot in the back and right side. He died the next morning about five o’clock. A witness, who was called to attend Primm after he was shot, stated that Primm asked witness what he thought of his condition, and witness told Primm that it was pretty bad. Witness was asked: “ Q. Do you know whether or not he had been informed by you or Dr. Niehuss, in your presence, that his wounds were fatal?” Witness answered, “Yes sir; I remember of telling him that he was in a serious condition.” Primm asked witness a time or two if witness thought there was any hope for him. Primm said he hoped there was a chance.

The justice of the peace was requested by the prosecuting attorney to attend at the bedside of Primm to hear his dying declaration. The prosecuting attorney asked Primm if he realized that he was fatally shot, and Primm answered that he did. Witness then wrote down the statement of Primm, which was to the effect that appellant shot him twice with a pistol. They were in a fight about forty-five minutes before, and Primm was only fighting with Ms fists. Primm. started ont of the hotel on the street, and met appellant, who shot him before he oonld get away. Appellant had threatened to whip Primm abont three or fonr days before the fist fight. When Primm started ont of the hotel, he met appellant; and when he saw appellant go for his pistol, Primm ran.

The testimony of appellant and the witnesses in his behalf tended to show that the appellant shot Primm in self-defense; that he heard, after he and Primm had the fight in the early part of the evening, that Primm was looking for him with a knife, and that Primm came aronnd the corner.and had his right hand dropped down by his side. Appellant saw something bright in his hand, which he took to be a knife, and began to shoot. He shot to protect himself. He shot fonr times.

The conrt gave instructions on the degrees of criminal homicide and on the law of self-defense. The appellant, in his motion for a new trial, objected to the giving of several of these instructions, which we have examined, and find that they correctly declared the law in accordance with many previous decisions of this court. It is therefore unnecessary to comment further upon them.

One of the grounds of appellant’s motion for a new trial is that the court erred in admitting the dying declarations of Primm. There was no error in the ruling of the court in admitting such declaration, and, besides, the verdict of the jury finding the appellant guilty of only involuntary manslaughter shows conclusively that the dying declarations had no weight with the .jury. If appellant was guilty at all, and the jury found that he was guilty, then, under the evidence, he could not have been properly convicted of a lower grade of homicide than murder in the first or second degree, or voluntary manslaughter. The killing of Primm, under the circumstances, could not have been involuntary manslaughter, because the appellant shot him with the intent to kill him. The instruction on involuntary manslaughter. under the undisputed testimony, was abstract. But this error was not prejudicial to the appellant, hut, on. the contrary, the ruling was in his favor, and therefore he has no right to complain of it.

Finding no reversible error in the record, the judgment must be affirmed.


author: Habt, J.,

text:
    Bratton v. Union Sawmill Company.
    Opinion delivered April 20, 1925.
    1. Homestead — abandonment.—Removal from a homestead without an intention to return and preserve it as a homestead amounts to an abandonment.
    2. Limitation of actions — payment of taxes. — Where the statute of limitations began to run before the owner’s death by payment of taxes on uninclosed and unimproved land, it continued to run against his minor children after his death.
    3. ADVERSE POSSESSION — UNIMPROVED AND UNINCDOSED LAND.— Evidence held to justify finding that land originally inclosed and partly improved had returned to the state of unimproved and uninclosed land before the owner’s death and at the time the statute began to run against him tby virtue of the payment of the taxes thereon.
    Appeal from Union Chancery Court, First Division ; J. Y. Stevens, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    Appellants brought this suit in equity to quiet their title to certain land and to cancel certain deeds to said land to appellee as a cloud on their title.
    Appellee defended the suit on the ground that the land was unimproved and uninclosed, and that it acquired title to the same by the payment of the taxes for more than seven years in succession, under § 6943 of Crawford & Moses’ Digest.
    The record shows that Y. A. Bratton was the owner of eighty acres of unimproved land in Union County, Arkansas, and, on the 5th day of December, 1906, S. N. Stow conveyed to him an adjoining eighty acres of land, which was also uninclosed and unimproved. Bratton executed a mortgage to Stow to secure the purchase money in the sum of $400, and the further sum of $100 which he had borrowed from Stow. On the 19th day of December, 1909, S. N. Stow and wife executed a mortgage on said land, together with other land belonging to him, to John W. Harmon, as trustee, to secure the sum of $2,000 which he owed Mrs. A. L.' Alphin. One of the tracts of land belonging to V. A. Bratton was in section eight and the other in section nine.
    According to the evidence of Mrs. Y. A. Bratton, her husband, V. A. Bratton, died February 9, 1914, leaving surviving him his widow and five children. Two of these children were minors at the time this suit was instituted, on the 14th day of October, 1922. V. A. Bratton cleared eight acres of each eighty-acre tract. A small log house was erected on the eighty acres, in the section nine, which was the tract that Y. A. Bratton purchased from S. N. Stow in December, 1906. Y. A. Bratton lived on the land in question for two years, and he constituted it his homestead. He then left the land and resided elsewhere with his family until the date of his death. His family has never returned to the land. No one has occupied it since V. A. Bratton left, about the first of the year 1910. The land was sold for taxes on the 13th day of June, 1910, for the nonpayment of taxes for the year 1909, and J. 8. Alphin having become the owner of the certificate of purchase, received a tax deed to said land on the 14th day of June, 1912. The Union Sawmill Company became the owner of said land by mesne conveyances from J. S. Alphin. The Union Sawmill Company and its predecessors in title have paid the taxes on said land from the year 1910 to 1922 inclusive. Other facts will be stated in the opinion.
    The chancellor found that appellants were barred of recovery by the statute of limitations, and their complaint was dismissed for want of equity, and the title to said land was quieted in appellee.
    The case is here on appeal.

      Harry W. Stewart, Hamp P. Sruead, W. T. Saye and J. N. Hayes, for appellant.

      Gaughan & Sifford, for appellee.
   Habt, J.,

(after stating the facts). The record shows that the land in question was sold in 1910 for the nonpayment of the taxes of 1909, and that, two years thereafter, a tax deed was executed to J. S. Alphin, who had become the owner of the certificate of purchase issued to the purchaser at the tax sale. The clerk’s tax deed was executed to him on the 14th day of June, 1912. Y. A. Bratton had moved away from the land with his family, at the beginning of the year 1910, and lived away from there until his death in February, 1914. Thereafter Bratton did not pay the taxes on the land and did not exercise any act of ownership whatever over it. He owed S. N. Stow $500, $400 of which was for the purchase price of one of the eighty-acre tracts of land in question, and he made no effort whatever to pay off this mortgage on the land. After his death, his widow and children continued to remain away from the land, and have not attempted to exercise any acts of ownership over it until about the time this suit was instituted.

The effect of the decree of the chancellor was to hold that Bratton had abandoned his homestead. We think the facts and attendant circumstances show that, when Y. A. Bratton left his homestead, he had no intention whatever of returning to it and preserving it as a homestead. Under such circumstances his removal from the land constituted an abandonment of it as a homestead. Stewart v. Pritchard, 101 Ark. 101; Whipple v. Keith, 134 Ark. 202; and Puckett v. Glendenning, 135 Ark. 551.

It is conceded that the clerk’s tax deed to said land to J. S. Alphin constituted color of title under our decisions. Wheeler v. Foote, 80 Ark. 435; Moore v. Moore, 118 Ark. 516; and Lightle v. Laws, 123 Ark. 537.

The record shows that a clerk’s tax deed was executed to J. S. Alphin in June, 1912, and that Y. A. Brat-ton did not die until February, 1914. The proof also shows that appellee and its predecessors in title commenced to pay taxes on the land in 1910, and continued to pay them each successive year thereafter until, and including, the year 1922. It is true that neither appellee nor its predecessors in title ever had actual possession of the land, hut they paid the taxes for more than seven , years in succession, under § 6943 of Crawford & Moses’ Digest, which provides that unimproved and uninclosed land shall be deemed to be in the possession of the person who has paid the taxes thereon, if he has color of title thereto. This court has held that, when the statute of limitations in such cases begins to run 'before the death of the owner, it continues to run against his minor children after his death. Bender v. Bean, 52 Ark. 132, and Freer v. Less, 159 Ark. 509.

Counsel for appellants concede the correctness of the principle of law above announced, and seek to reverse the decree mainly on the ground that the land in controversy is not uninclosed and unimproved land within the meaning of § 6943. In making this contention they rely upon the case of Fenton v. Collum, 104 Ark. 624, where the court held that the statute providing that one who, having color of title, pays taxes for seven years upon unimproved and uninclosed land, acquires the title thereto by limitation, does not apply to land cleared, fenced, or in cultivation. In discussing the question in that case the court said:

“It may be that, when fields, once cleared and cultivated, have been abandoned and permitted to go to waste and grow up in briars and brush and the fences become delapidated and destroyed, the lands will be regarded as unimproved and uninclosed, as though they had never been, but we think this condition must be shown before the title to lands, once improved and inclosed, can be acquired by the payment of taxes in accordance with said law. In ether words, if the lands are shown to have been improved or inclosed during any of the seven years, the successive payment of taxes for which would have conferred title upon the person paying the taxes if they had .been unimproved and uninclosed, it would defeat the claimant’s title thereto.

This brings ns to a consideration of whether the land was unimproved and uninelosed land within the meaning of § 6943 of Crawford & Moses’ Digest at the time V. A. Bratton died, so that the statute of limitations had commenced to run against him.

It appears from the record that V. A. Bratton cleared eight acres of land on each eighty-acre tract, and inclosed the same under one fence. He built a little log house on the cleared land in section nine, and occupied it with his family as a homestead. He made one or two crops on the cleared land, and then left the land, and never after-wards returned to it. At the time he left there was a mortgage of $500 on the land, and Bratton never attempted to pay any part of the mortgage debt. He never paid the taxes nor exercised any acts of ownership over the land. S. N. Stow, who held a mortgage on the land, never exercised any acts of ownership over it after Bratton left the land. Bratton left the land during the latter part of 1909, or the first part of 1910. He died in February, 1914. Thus it will be seen that, for four years, no attention whatever was paid to the land, and no one attempted to exercise any ownership over it.

When we consider the smallness of the clearing compared with the whole 160 acres, and the fact that there was only a little log house built on it, we think the chancellor was justified in finding that it had returned to a state of nature before V. A. Bratton died, and that the land was unimproved and uninelosed within the meaning of the statute. The surrounding circumstances indicate that the land would soon grow up with briars and bushes after it was abandoned, and the chancellor was justified in finding that one payment of taxes at least was made before the death of Bratton, after the land had returned to a state of nature, and became unimproved and uninelosed land within the meaning of the statute. The undisputed evidence shows that more than seven successive payments of taxes were made, and the chancellor was justified in finding that appellants were barred by the statute of limitations.

Therefore the decree will be affirmed.


author: Hart, J.,

text:
    Williams v. Petty.
    Opinion delivered April 20, 1925.
    1. Forcible entry ani> detainer — when unlawful detainer lies. —The action of unlawful detainer will not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist in order to maintain the action.
    2. Forcible entry and detainer — unlawful detainer not remedy when. — Where lessees failed to show that they were ever in possession of the land, or that the defendant held under them by virtue of any contract, or that the relation of landlord and tenant existed between them and defendant, they were not entitled to maintain unlawful detainer, but might bring ejectment or pursue their remedy against the landlord.
    3. Forcible entry and detainer — damages.—Where lessees though entitled to possession, failed in unlawful detainer, the defendant, though having no right to possessin, was entitled to recover the land and his costs, but not to recover damages for being wrongfully dispossessed
    Appeal from Marion Circuit Court; J. II. Shinn, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is an action of unlawful -detainer brought by Ambrose Williams and ;iA.rvie Ingram against W. J Petty.
    The suit was defended on the ground that the plaintiffs had never been in possession of the land, and that the relation of landlord and tenant had never existed between the plaintiffs and the defendant.
    The record shows that Ambrose Williams and Arvie Ingram rented a farm in Marion County, Arkansas, for the year 1923, known as the Hill Fontaine land. For two years prior thereto the land had been rented to J. F. Williams, the father of Ambrose Williams. J. F. Williams had rented a part of the farm to W. J. Petty for the year 1922. After the plaintiffs rented the land they gave Petty a written notice to quit for the time provided by the statute.
    W. J. Petty was a witness for himself. According to his own testimony, he went into possession of a part of the Hill Fontaine farm, about the first of the year 1922, as a tenant of J. F. Williams. He admitted that he held oyer for the year 1923 until he was dispossessed, and that he informed the plaintiffs that he was holding under J. P. Williams, and that this holding was under the contract which he had made with J. P. Williams. He knew that J. P. Williams had not rented the land for the year 1923. Petty also testified as to the amount of damages suffered by him when he was dispossessed of the land.
    The court instructed the jury that the plaintiffs wore not entitled to recover, and submitted to the jury the question of damages suffered by Petty on account of being wrongfully dispossessed of the land.
    The jury returned a verdict for $50' in favor of the defendant, and from the judgment rendered the plaintiffs have duly prosecuted an appeal to this court.

      J. H. Black, for appellant.
   Hart, J.,

(after stating the facts). The circuit court was right in holding that the plaintiffs were not entitled to maintain the action. The action of forcible entry and unlawful detainer lies only in the cases pointed out by the statute, and the main purpose of the statute is to give a speedy remedy to a landlord against his tenant, who holds possession without right.

In this case the facts do not show that the plaintiffs were ever in the possession of the land, or that the defendant held under them by virtue of any contract, or that the relation of landlord and tenant in any manner, express or implied, existed between them.

We have held that the action of unlawful detainer will not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist in order to maintain the action. Dortch v. Robinson, 31 Ark. 296; Necklace v. West, 33 Ark. 682; and White River Land & Timber Co. v. Hawkins, 128 Ark. 277.

The plaintiffs, under the evidence, were entitled to the possession of the premises, but should have brought ejectment instead of unlawful detainer, or should have demanded that their landlord put them in possession of the premises, and, if he failed to do so, they might have maintained an action against him for a breach of their rent contract.

The case of Cherry v. Kirkland, 138 Ark. 33, has no bearing on this case, and is not in conflict with the 'views we have expressed. In that case the plaintiff in the action acqnired title from the lawful owner, and stood in his shoes as owner of the land for all purposes. The court expressly recognized that the relationship of landlord and tenant must exist, but said that the statute was broad enough to include the grantee of the owner. In other words, by acquiring the legal title to the property, the grantee took the place of the original owner, who was the landlord, and succeeded to his rights under the statute. Not so with the lessee of the original landlord, who, as we have already seen, only acquired the right of possession during the term of his lease, and did not become owner of the legal title to the land.

Therefore we are of the opinion that the court was right in dismissing the action of the plaintiffs.

The court was wrong, however, in submitting the question of damages to the jury. In the case of White River Land & Timber Co. v. Hawkins, 128 Ark. 277, it was held that, under our statute, the defendant in an action for unlawful detainer, where his occupancy is without right, cannot recover’ damages from the true owner. The reason is that the statute does not authorize such recovery, and the court said that it is only where the defendant disputes the right of possession that he can introduce before the .jury evidence showing damages he has sustained by reason of being dispossessed.

According to the uncontradicted evidence, the defendant was not entitled to the possession of the land in controversy, and the failure of the plaintiffs to recover possession was due entirely to the form of the action in which they sought relief.

It follows that the judgment in the defendant’s favor should only have been for the restitution of possession of the land and for the recovery of the costs of the action. To that extent only will the judgment be affirmed, and the judgment for recovery-of damages will be reversed and dismissed. It is so ordered.


text:
    Murrell v. Exchange Bank.
    Opinion delivered April 20, 1925.
    1. Venue — county having two districts. — Under Crawford & Moses’ Digest, § 1176, providing that transitory actions may be brought in any county in -which the defendant, or one of several defendants, resides, or is summoned, a suit on a promissory note against ithe maker and payee may be brought in the Northern District of Arkansas County, where the payee resides, and the maker be sued in the Southern District, though Acts 1913, p. 192, establishing the two districts provides that residents of one district shall not ibe sued in the other, as the latter act refers only to actions in which all the defendants are residents of the same district-.
    2. Judgment — effect o-f discontinuance as to co-defendant.— Where suit was brought against the maker and the payee of a promissory note, in the Northern District of Arkansas County where the payee resided, the maker being summoned in the Southern District where he resided, held, upon the suit being discontinued as to the payee upon his death, no judgment could thereafter be had against the maker, under Crawford & Moses’ Digest § 1178.
    3. Bills and notes — negotiability.—Promissory notes, to be negotiable, must be payable unconditionally and at all events and at some fixed period of time, or upon some event which must inevitably happen.
    4. Bills and notes — negotiability.—The negotiability of a note is not destroyed by the fact that it contains a provision for retention of the title to the property for which the note is given until the note is paid.
    5. Bills and notes — negotiability.—The element of certainty is not wanting in a promissory note where it contains a clause making it payable before the due date at the option of the maker, or where it gives the holder the right to declare all of the series of the notes due when the maker iails to pay the principal or interest of any note when due.
    6. Bills and notes — negotiability.—Negotiable paper for all practical purposes passes by delivering as money and is representative of money.
    7. Bills and notes — negotiability.—A promissory note given for the purchase price of a pump with retention of title ¡in the payee until the note is paid, and providing that the payee, if he deemed the property unsafe, might take possession of the property, whether the note was due or not, and sell same, the maker agreeing to pay the balance remaining unpaid after ¡application of the net proceeds of the sale, held non-negotiable, since the maker’s obligation was not ¡absolute and unconditional for the payment of a definite sum of money at all events and without any_ contingency.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clarh, Judge;
    reversed.
    STATEMENT OF FACTS.
    The Exchange Bank sued-A. D. Murrell, National Pump & Well Company and J. C. Lloyd, to recover $1,193.15 and the accrued interest alleged to he due it upon a promissory note. A. D. Murrell defended the suit on the ground that the note was given by him to the National Pump & Well Company, for the purchase money of a pump, and that the pump failed to furnish the quantity of water which the company warranted it would furnish. The note sued on is as follows:
    “ Stuttgart, Arkansas, April 13, 1920.
    “$1,193.15
    “On or before the 1st day of December, 1920, for value received, I promise to pay to the order of National Pump & Well Company eleven hundred ninety-three and 15/100 dollars, with interest at the rate of 8 per cent, per annum from date until maturity, and 10 per cent, from maturity until paid, payable annually, if not so paid to become principal and bear the same rate of interest.
    “It is expressly understood that this note is given for the purchase money of pump, well and appurtenances thereto, title and right of possession to which is reserved in the payee until this note 'be fully paid. If at any time the payee shall deem the said property to be in any way unsafe, he may take possession thereof at once, whether this note be due or not, and sell same at public or private sale, and, in consideration and use of said pump, well and appurtenances thereto, I hereby agree to pay the balance of note remaining unpaid after net proceeds are applied. This note is one of a series of one (1) notes, and, in the event default is made in the payment of this note at maturity, all remaining notes shall be and become due at once, at the option of the holder. The maker hereof and all indorsers hereby waive demand, protest and notice. A. D. Murrell.”
    The note contained indorsements as follows: “National Pump & Well Co., by J. C. Lloyd; J. C. Lloyd.” The National Pump & Well Company was the trade name under which J. C. Lloyd operated.
    The note was assigned to the Exchange Bank in June, 1920. It was given to it, along with a lot of other notes of J. C. Lloyd, as collateral security for money owed by him to the bank. The bank did not at the time know of any defense to the note.
    According to the testimony of A. D. Murrell, he purchased a pump from the National Pump & Well Company, and agreed to pay $4,772.60 for the pump and its equipment. He paid all of the purchase price, except $1,193.15, and executed the note sued on for that sum. There was a written contract for the sale of the pump and its equipment, and the seller warranted that, when it was installed under the contract, it would furnish not less than 1,000 gallons of water per minute. The highest amount of water that was ever furnished by it was 700 gallons, and it ordinarily threw from 500 to 600 gallons of water per minute. J. C. Lloyd was informed of this fact.
    One of the representatives of the National Pump & Well Company testified that he saw the pump after it was installed, and that it produced, in his judgment, in the neighborhood of between 700 and 800 gallons of water per minute. It did not come up to the contract under which it was sold.

      Other witnesses corroborated the testimony of Mur-rell to the effect that the pump would not throw more than 700 gallons of water per minute. Other facts will be stated in the opinion.
    The jury returned a verdict in favor of the plaintiff, and the defendant Murrell has duly prosecuted an appeal to this court.

      John W. Moncrief, for appellant.

      Pettit <& Leach, for appellee.
   Hart, J.,

(after stating the facts). The first assignment of error is that the court erred in not quashing the service of summons upon A. D. Murrell. The suit was filed on the 6th day of July, 1922, in the circuit court for *the Northern District of Arkansas County, Arkansas. Summons was duly issued and served upon A. D. Murrell and J. C. Lloyd. J. O. Lloyd lived in the northern district of Arkansas County, and transacted business under the trade name of National Pump & Well Company. A. D. Murrell lived in the southern district of Arkansas County. The Legislature of 1913 established two judicial districts in Arkansas County, called the Northern and the Southern districts. Acts of 1913, p. 192.

Section four of the act provides that the authority and territorial jurisdiction of the circuit and chancery courts shall extend over the northern district in the same manner as if said district was a constitutional county, and that the circuit and chancery courts shall have original and exclusive jurisdiction of all such cases as are now vested by law in' the circuit 'and chancery courts of the State. The section also contains the following: “ Provided, that no citizen or resident of the northern district shall be liable to be sued in the southern district; nor shall any citizen or resident of said southern district be liable to be sued in the northern district in any action whatever.”

Section six provides that, in order to ascertain in which of the respective districts actions cognizable in the circuit and chancery courts shall be tried, the said districts shall be considered as separate and distinct counties, and the mode and place for trying suits shall be determined by the general law applicable to different counties.

When all the provisions of the act are considered together, it was the evident purpose of the Legislature to prevent the inhabitants of each district from being sued ontside of their district, where one or more of the inhabitants of the same district were made defendants in the same suit. In other words, the proviso copied above has reference only to actions where all the defendants are residents of the same district. Pryor v. Murphy, 80 Ark. 150.

It is manifest from the provisions of the act that, where two persons are sned .jointly and one of them lives in the northern district and the other in the southern district, the venue may be laid and the service of summons had under the general statutes.

Section 1176 of Crawford & Moses’ Digest provides that transitory actions may be brought in any county in which the defendant or one of several defendants resides or is summoned.

J. C. Lloyd resided in the northern district of Arkansas County. A suit on a promissory note is a transitory action. Hence the plaintiff might bring the suit in the northern district of Arkansas County and serve Lloyd with summons in the northern district, where he lived, and Murrell in the southern district, where he resided.

Judgment was rendered in favor of the Exchange Bank against A. D. Murrell on February 20, 1924. J. C. Lloyd had died-during the first part of November, 1923.

Section 1178 of Crawford & Moses’ Digest is as follows: “Where any action embraced in § 1176 is against several, defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.”

The section provides that, when any action embraced in § 1176 is against several defendants, the plaintiff shell not he entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where the action is discontinued or judgment is rendered in favor of the defendants summoned in the county where the action is commenced. As we have already seen, the two districts in this respect are treated as separate counties, and judgment could not be rendered in the northern district against Murrell, who was a resident of the southern district, where the action was discontinued as to Lloyd, who resided in the northern district, and was summoned there, or where judgment was rendered in his favor. J. 0. Lloyd died before judgment was rendered against Mur-rell. This caused a discontinuance of the suit as to him. In law, discontinuance means to abandon or terminate an action. No revival of the action was had against the administrator of J. C. Lloyd after his death, and this operated as a discontinuance of the action against him. Hence the plaintiff was not entitled to judgment against Murrell.

In this connection it may be stated that, if the suit should be revived against the estate of J. C. Lloyd, no judgment could be rendered against Murrell if there should be a judgment in favor of the administrator of the estate of J. 0. Lloyd, deceased.

The reliance of Murrell for a reversal of the judgment on the merits is that the note sued on is non-negotiable, and that the court erred in instructing the jury that it was negotiable. In this contention we think counsel is correct. In the first place, it mav he stated that this court has held that the negotiability of a note is not destroyed by the fact that it contains a clause merely providing for the retention of title to the property for which the note is given until the note is paid. Exchange National Bank v. Steele, 109 Ark. 107. That this holding is in accord with the great weight of authority will be seen by reading the decisions! cited in the case-note t.o 14 Ann. Cas. at p. 1129, and 28 A. L. R. at p. 699. The reason is that the agreement reserving the title of the property in the seller until it is paid for does not affect the note in the least, nor make the time of payment or the amount to be paid in any wise uncertain. It is a distinct and independent agreement, incidental to but not a part of the note. In other words, the clause retaining title in the seller until the property is paid for only relates to the security and not to the indebtedness itself.

In Chicago Ry. Equipment Co. v. Merchants’ Bank, 136 U. S. 268, it was held that a contingency under which a note may become due earlier than the date fixed is not one that affects its negotiability. In that case a series of notes was given for the purchase price of property, and they provided that, upon the failure of the maker to pay the principal or interest of any note in the whole series, the other would become due and payable. That is to say they were due and payable at the option of the holder; but the notes were nevertheless'for the payment of money at a fixed period of time, or at least upon an event which must inevitably happen.

Again, in Ackley School Dist. v. Hall, 113 U. S. 135, it was held that municipal bonds issued under a statute providing that they should be payable at the pleasure of the district at any time before due, were negotiable. The court said that, by their terms, they were payable at a time which must certainly arrive, and that the holder could not exact payment before the day fixed in the bond. Therefore the debtor incurred no legal liability for nonpayment until’ that day passed, and’ the option of the debtor to pay sooner was nothing more than a payment in advance of its legal liability.

It is well settled that a promissory note, in order that it may be negotiable in accordance with the law merchant, must be payable unconditionally, and at all events, and at some fixed period of time, or upon some event which must inevitably happen. The element of certainty is not wanting in a promissory note where it contains a clause making it payable before the due date at the option of the maker, or where fit gives the holder the right to declare all of the series of notes due when the maker fails to pay the principal or interest 'of any note when due. In either event, there is no time in which the precise amount due on the note and the time when the maker was compelled to pay could not have been determined by an inspection of the instrument itself.

In the case first mentioned, the additional promise of the maker to pay the money before the date fixed in the note does not abrogate or interfere with his absolute promise to pay at the date fixed. In other words, if the conditional promise is not performed, the absolute promise remains in full force. The option to pay before due, if exercised by the maker, would only be a payment in advance of the legal liability to pay on the date due. In like manner, the right given the payee to declare all the notes of the series due upon the failure of the maker to pay any one of them, does not make the time of payment uncertain and render the note non-negotiable. The maker of the note knows in advance that, if he fails to pay any of the notes or the interest as it falls due, the whole amount may be declared due. His compliance with his unconditional promise to pay would prevent the notes from falling due. In either event the maker of the note could tell from the face of it the exact date upon which he must pay it.

Such is not the case where the note, in addition to a provision for the retention of title, provides that the payee may declare the note due at any time that he deems himself insecure, before maturity, and sell same at public or private sale. This clause renders a note not only payable upon a contingency, but renders the time of payment uncertain. The note not only recites that it is expressly understood that it is given for the purchase price of a pump, and that the title and right of possession is reserved in the payee until the note is paid, bnt it also provides that if, at any time, the payee shall deem the property to be in any way unsafe, he may take possession of it at once, whether the note is due or not, and sell the same at private sale. The note further provides that the maker agrees to pay the balance of the note remaining unpaid after the net proceeds are applied.

It is clear that the maker’s obligation is not then an absolute and unconditional one for the payment of a definite sum of money at all events and without any contingency. By the law merchant, negotiable paper, for all practical purposes, passes by delivery as money, and is the representative of money. People’s Saving Bank v. Bates, 120 U. S. 556. Therefore a note providing that the vendor may retake possession of the property at any time that he deems himself insecure and sell the same and apply the proceeds to the payment of the note is non-negotiable. An obligation of this character is too uncertain to serve the purpose of commercial paper. By the weight of authority it is held that a condition of this sort introduces an element of uncertainty as to the time of payment and the amount to be paid, and renders the note non-negotiable. The maker cannot at any time tell from the face of the instrument how much he wil-1 be compelled to pay, or at what time his liability becomes absolute. Kimpton v. Studebaker Bros. Co. Idaho 552, 14 Ann. Cas. 1126, and note at p. 1130; Moyer v. Hyde, 35 Idaho, 204 Pac. 1068, 28 A. L. R. 695, and note at p. 703; Third National Bank of Syracuse v. Armstrong, 25 Minn. 530; Killam v. Schoeps, 26 Kan. 310, 40 Am. Rep. 313; Smith v. Marland, 59 Iowa 645, 13 N. W. 852; South Bend Iron Works v. Paddock, 37 Kan. 510, 15 Pac. 574; W. W. Kimball Co. v. Mellon, 80 Wis. 133; Lincoln Nat. Bank of Lincoln, Ill., v. Perry (Circuit Court of Appeals, Eighth Circuit), 66 Fed. 887; First National Bank of Port Huron v. Carson, 60 Mich. 432; First National Bank of New Windsor v. Bynum, 84 N. C. 24, 37 Am. Rep. 604; and Carroll County Sav. Bank v. Strother, 28 S. C. 504, 6 S. E. 313.

There is some conflict in the authorities upon this point, but we think the holding that a condition of this character renders a note non-negotiable is in accord with the weight of authority. It is true that, under the law merchant, many rules respecting negotiable paper may be classed as arbitrary, but they have always been rigidly enforced. It has always been held to be a necessary quality of negotiable paper that it should be certain, unconditional, and not subject to any contingency. There is nothing in our negotiable instrument act which ' changes the rule established by the law merchant as above set forth.

Having reached the conclusion that the note sued on is not negotiable, and for that reason the judgment must be reversed, it becomes unnecessary for us to pass upon other assignments of error'which will not likely be in the record upon a retrial of the case.

For the errors indicated in the opinion the judgment will be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Meekins v. Meekins.
    Opinion delivered April 20, 1925.
    1. Evidence — declarations op GRANTOR. — Where plaintiff’s grantor and his cotenant divided the land held by them in common, declarations of the grantor and cotenant that the former took the ■south half of the tract in the division was competent in a suit to reform the grantor’s deed, which by mistake undertook to convey the north half.
    2. Reformation of instruments — sufficiency of evidence. — To justify reformation of a deed for a mutual mistake in description, the evidence need not be undisputed, but is sufficient if the testimony in its entirety clearly shows that a mutual mistake was made.
    Appeal from Union Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    .affirmed.

      Goodwin £ Goodwin, for appellant.
   Smith, J.

Appellee was the plaintiff below, and, for his canse of action, alleged that on Jnne 15, 1907, Reuben Meekins was the owner of the southwest quarter of the southwest quarter and the south half of the northwest quarter of the southwest quarter of section 33, township 15 south, range 16 west, Union County, Arkansas, and, for the consideration of a hundred dollars, sold and agreed to convey these lands to appellee. A deed was prepared, hut, by a clerical error in the preparation of the deed, the lands were erroneously described as the southwest quarter of the northwest quarter and the north half of the northwest quarter of the southwest quarter of section 33, township 15 south, range 16 west. Reuben Meekins was dead at the time of the institution of this suit, but was survived by a son, named William, who was the father of appellee, and by a number of other grandchildren besides appellee. These other grandchildren resisted the granting of the relief prayed, and filed an answer in which they denied that any mistake had been made, and, in addition, alleged that Reuben Meekins, by reason of his advanced age and feeble health, did not have mental capacity to execute the deed.

The court found that the allegations of the complaint were sustained by the testimony, and decreed accordingly.

Appellants correctly contend that the relief prayed could only be granted upon testimony showing clearly that a mistake had been made, and they insist that the testimony offered in behalf of appellee did not measure up to this requirement of the law.

It appears, from this brief statement of the case, that the question presented by this appeal is one of fact.

On behalf of appellee the testimony was to the following effect: Reuben Meekins and one Charles G-oodwin owned, as tenants in common of equal interests, 120 acres of land, consisting of three 40-acre tracts, described as follows: Southwest quarter of the northwest quarter, northwest quarter of the southwest quarter, and southwest quarter of the southwest quarter, 'section 33, township 15 south, range 16 west. Reuben Meekin.s and Charles Goodwin divided the land, and, by the terms of the division, Meekins took the south half of the tract and Goodwin the north half. ' By the terms of this division Meekins took title in severalty to the south half of the northwest quarter of the southwest quarter and southwest quarter of the southwest quarter, which was the south half, and Goodwin took the title to the north half of the northwest quarter of the southwest quarter and southivest quarter of the northwest quarter, which was the north half, and they went into possession of their respective parts, and Meekins remained in possession of the south half until the time of the execution of the deed sought to be reformed.

One of the grounds upon which reversal of the decree below is sought was the refusal of the court to exclude certain testimony given by M. J. Goodwin. This witness testified that he had lived in Union and an adjoining county for sixty-five years; that his father had furnished Meekins and Goodwin, who were both colored men, for a number of years; that Meekins and Goodwin bought the 120 acres together from a man named Roseman, and witness’ father advanced the money to nay for it. The land was bought about 1870, and Meekins and Goodwin lived on it together until they divided the land. This witness was asked: “Do you know anything about the division made between Charles Goodwin and Reuben Meekins,” and answered: “Only what they said. They said Charles Goodwin took the north end and Reuben Meekins the south end.” This testimony was competent, as it was permissible to prove the declarations of the parties that a division had been made and what the division was.

This witness further testified that, after the division, Goodwin bought some other land and moved awav, and that Meekins remained in possession of the south half of the land and cultivated a portion of it. This wifopss was on the land frequently to see about the crops, on which his father was making advances, and, after the division, Reuben Meekins was in exclusive possession of the south half, and did not claim to own any other land.

Reuben Meekins paid taxes in his own name down to 1908 on all of the south half only, and did not pay on any other land, and, after 1908, the taxes were paid in the name of appellee.

The witness, M. J. Goodwin, further testified that Reuben Meekins told him he had deeded this land (the south half) to his grandson, Robert Meekins, who was taking care of him.

The testimony of several other witnesses makes it appear certain that Reuben Meekins and Goodwin had divided the land, and that Meekins had taken the south half as his part, and that he owned no other land except the south half at the time he executed the deed describing the north half.

William Meekins, the father of appellee and the son of Reuben, testified as to the division of the land between his father and Goodwin, and the subsequent convevauee to his son of the portion assigned on the division to his father, and the circumstances of the execution of the deed. A justice of the peace was called in £o prepare the deed, and he was given the tax receipts to secure the description, and, after the deed had been executed and acknowledged, it was delivered to the appellee. None of the parties appear to have been familiar with the land descriptions, and the error was made by the justice of the peace. At the time of the execution of this deed Reuben Meekins owned no land except the south half of the 420-acre tract, according to the testimony of William Meeldns and other witnesses who testified on behalf of appellee.

On behalf of appellants there was some testimonv to the effect that Reuben Meekins did not have mental canac-itv to execute the deed, but this defense is not relied upon. The chief defense of appellants is that the testi-monv is not sufficiently clear to reform the deed, and that the testimonv does not show that appellee claimed fftle to this land, and that he and certain other heirs at law of Reuben Meekins occupied the land jointly.

Without setting out all the testimony, we think it clearly appears that Goodwin and Reuben Meekins divided the 120-acre tract; that Meekins took the south half thereof, and that he intended to convey this land to appellee, his grandson; that appellee accepted the deed describing the north half as a conveyance of the south half, and that he has since occupied it as sole owner, and not as tenant in common with the other heirs.

These findings are not established by the undisputed evidence; but it is not required that the mistake be established by testimony that is undisputed. It suffices if the testimony, in its entirety, clearly shows that a mutual mistake was made, and we think the testimony, in its entirety, meets that requirement.

The decree of the court below will therefore be affirmed.