author: Smith, J.

text:
    Webb v. Spann.
    Opinion delivered February 26, 1923.
    1. Appeal and error — findings of trial court. — Findings of the trial court sitting as a jury must he accepted on appeal if the testimony is legally sufficient to support them.
    2. Limitation of actions — effect of pendency of another suit. —Where a suit to recover land and quiet title was begun within seven years after defendants took possession of plaintiff’s land, its pendency would prevent the running of the statute of limitations as against it, hut would not prevent the statute from running against an action of ejectment where there was no connection between the two suits, and no nonsuit had been filed in the first suit.
    3. Limitation of actions — agreement tolling limitations.— Where, after a suit to quiet title was begun, the parties agreed to let the ownership abide the decision of the Department of the Interior, the agreement operated to prevent the running of the statute of limitations till the decision of the Interior Department was made, and plaintiff’s action brought within time thereafter was not barred.
    4. Ejectment — plaintiff’s possession under color of title.— Plaintiff, having possession of land under color of title, can maintain ejectment against mere trespassers.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      T. J. Crowder, for appellants.
    J. T. Coston, for appellee.
    1. Prior possession, with or without color of title, is sufficient to sustain a judgment against a mere trespasser. 199 S. W. 119; 62 Ark. 56.

      2. Appellants are in no position to plead the statute of limitations (1) because of the pendency of the suit against them in chancery, and (2) because they ag'reed to vacate the premises in case the Department of the Interior decided adversely to them. However, appellee really owned the land in controversy, as was demonstrated to the lower court from a map which has not been brought into the record here. It must be presumed that the trial court was correct in its finding. 30 Pac. 1089; 8 Ark. 436; 1 Peters, 23; 28 N. E. 747; 20 S. W. 539; 38 Ark. 481; 58 Ark. 135; 34 Ark. 313.
   Smith, J.

Appellee brought separate suits in ejectment against appellants, to recover certain parcels of land situated in section 22, township 14 north, range 12 east. The cases are identical, and were tried together and disposed of as a single case. The court made findings of fact, on all the issues raised, in appellee’s favor, and the recital of these findings will explain and state the case. They were as follows:

“1. That the defendants are living upon and occupying land in the W½ of section 24, township 14, range 12 east, and have been occupying and claiming the same since the year 1911, without color of title thereto.
“2. That the lands occupied by them are situated within the meander line of what is known as Hudgens Lake.
‘ ‘ 3. That the plaintiff had color of title to and was claiming, clearing up and had actual possession of the lands occupied by the defendants at the time of and prior to the occupancy of the defendants.
“4. That after the defendants took possession of said lands, and within seven years, the plaintiff commenced an action in the chancery court of the Osceola. District of Mississippi County, Arkansas, against them to recover said land from them and quiet his title thereto, which action is still pending and undetermined.
“5. That after said action was commenced by the plaintiff in the chancery court, and within seven years after defendant took possession of said lands, the plaintiff and defendants entered into an agreement, whereby plaintiff and defendants agreed to let the ownership of the land abide the decision of the Department of the Interior, the defendants agreeing, in case the Department of the Interior decided in favor of the riparian owners, to vacate said lands immediately.
‘ ‘ 6. That the Department of the Interior decided, in the year 1920, that there was no error in the original survey of Hudgens Lake and, including the lands claimed and occupied by the defendants, belonged to and were owned by the riparian owners, including the plaintiff.”

Inasmuch as the case was heard by the court sitting as a jury, these findings must be accepted if the testimony is legally sufficient to support them, when given its highest probative value in appellee’s favor, and we think it is sufficient for that purpose.

It is undisputed that appellants were squatters, who entered upon and occupied the land on the theory that it was government land and did not belong to the riparian owners. At the time of their entry it was insisted by them that the government survey was in error in showing the land which they entered upon to be a lake; and the Government Land Office was induced to verify this survey. A finding was made by the Department that no error had been made in the original survey. The Department of the Interior reviewed this finding, and affirmed it. The effect of that action was, of course, to conclusively determine the fact that at the time of the government survey the land in litigation was a lake, and was therefore owned by the riparian proprietors.

It is insisted by appellee that if the lake bed was apportioned among the riparian proprietors in accordance with the rules for such apportionment, the land in litigation would fall within the boundaries of appellee’s land; but the court-made no finding to that effect — -the finding being merely that the lands covered by Hudgens Lake were owned by the riparian owners, including appellee — and we do not feel called upon to attempt to determine whether the land would fall to appellee in this apportionment. Indeed, the determination of that question would involve the validity of appellee’s title as a riparian owner — a question which, we do not decide,' as the case must be affirmed upon other grounds.

Appellee had color of title to the land in litigation; and we think the testimony shows he had actual possession thereof at the time appellants entered; in fact, he had cleared about one hundred acres of land in the south half of the section, and had it about ready for the plow when appellants entered upon it.

It is undisputed that, after appellants took possession of the land, and within seven years, appellee commenced an action in the chancery court to recover the land from them and to quiet appellee’s title thereto; and this action is pending and undetermined. This was the court’s fourth finding of fact, and it is insisted that it is conclusive of the case.

We think, however, this fact is not of controlling importance, and would not operate to prevent the running of the statute of limitations against this suit, considered by itself; and, while the pendency of that suit would prevent the running of the statute of limitations against it, its pendency would not prevent the running of the statute of limitations against this one, as there was no connection between the two cases, and- no nonsuit had been filed in the first one. Such is the effect of the holding of this court in the case of Hill v. Pipkin, 72 Ark. 549, and Wallace v. Swepston, 74 Ark. 520.

In 25 Cyc. p. 1290, it is said: “The defense of the bar of the statute of limitations applies strictly to the particular action to which it is pleaded, and hence if that suit be not brought within the statutory period, the bar of the statute cannot be avoided by showing that another action had been brought by plaintiff against defendant on the same cause of action within the period limited by the statute.” Numerous cases are cited in support of the text quoted, including- the two cases from this court mentioned above. See also 2 Wood on Limitations (4th ed.) p. 1197; 8 C. J., sec. 166.

The fifth finding- of fact is, however, decisive of the question of limitation'; and we think there was testimony legally sufficient to support that finding. Appellee testified that, after the suit in chancery had been brought, he discussed the suit with appellants, who insisted that they made no claim to the land except that it was government land and was subject to entry for homestead purposes, and appellee stated to them that, if the land was government land, he had no claim to it, and was willing for appellants to perfect their homestead claims, and with this understanding, and because of it, he did not press the suit until the character of the land had been finally determined by the Federal Government. This finding of the Department of the Interior was made on December 18,1920; but appellants refused to vacate, and thereafter these suits were brought in the spring- of 1921.

We think this agreement — which the court found the parties hád made-^operated to prevent the running of the statute of limitations until the character of the land had been determined by the Department of the Interior; •and, with the period of time covered by this agreement excluded, the statute of limitations could not have run against this suit. Shirey v. Whitlow, 80 Ark. 444; Hudson v. Stilwell, 80 Ark. 575.

Appellee had possession under color of title. He was therefore entitled, as against appellants (who, under the facts of this record, were mere trespassers), to maintain this suit. Cotton v. White, 131 Ark. 273. The^ judgment of the court below is therefore affirmed.


source: Caselaw Access Project

author: Sriith, J.

license: Public Domain

text:
    National Fire Insurance Company v. Pettit-Galloway Company.
    Opinion delivered February 26, 1923.
    1. Assignments — assignor as necessary party. — Where a fire insurance policy provided that if insurer claimed that a fire loss was caused by act or neglect of a third person, the insurer, on pyament of the loss, shall be subrogated, to the extent of such payment, to the insured’s right of recovery, in an action by the insurer against a person whose negligence is alleged to have caused a fire loss which the insurer paid, the insured was a necessary party, as the cause of action was not assignable at law.
    2. Parties — refusal to permit new party to be brought in.— Refusal of the court to permit a new party to be brought in was not error where the cause of action as to him was barred.
    Appeal from Pulaski Circuit Court, Second Division ; Guy Fulk, Judge;
    affirmed.

      Coleman, Robinson & House, for appellant.
    1. Under the facts in this case, tbe right of the insurer to maintain this action in their own name is not open to question. Crawford & Moses ’ Digest, § 1089; 41 Fed. 643; 26 C. J. 465; Ann. Cases, 1917-A, 1302; 99 Ark. 460.
    2. We think the insured was not a necessary party; but, if so, appellant, in view of .the fact that appellee did not raise the question until after the testimony was all in, should have been permitted to make him a party.

      J. H. Carmichael, for appellee.
    1. The insured was a necessary party. Causes of action of this kind are not assignable under our statute, and must be brought in the name of the assignor. Crawford & Moses’ Digest § 475; 26 C. J. 467; 60 A.rk. 325; 80 Ark. 167; 127 Ark. 590; 151 Ark. 207. .
    2. . Action against the insured, at the time the request was made to make him a party, was barred bv the .statute, and the court properly refused to permit it. C. .& M. Dig., § 6950. Moreover, the request came too late. The case was .ready to submit to the jury. 93 Ark. 609,
   Sriith, J.

J. F. Jones held policies of insurance in the appellant fire insurance companies on his dwelling for $1,500, and another policy on his household furniture for $600. On December 13', 1917, during the life of the policies, the dwelling and household furniture were damaged by fire, and in the settlement of the loss the insurance company paid Jones $1,826.90.

Each of the policies contained the following provision: “If this company shall claim that fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on the payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.” .

The companies took an assignment of the claim from Jones, and on August 10, 1918, brought this suit against Pettit-Galloway Company, engaged in business as plumbers, alleging that the fire and loss was caused by the negligence of that company in thawing some frozen pipes in the house, and at the trial testimony was. offered from which the jury might have found that the fire was- caused by the negligence of an employee of the plumbing company. At the trial, however, the court directed a verdict in favor of the defendant on the ground that the insurance company could not maintain the action without making Jones a party. When the court indicated the action it was about to take, the plaintiff asked to be allowed to make Jones a party, but the court refused to permit this to be done, and judgment was rendered for the defendant.

For the reversal of the judgment it is insisted, first, that Jones was not a necessary party; and, second, that, if Jones was a necessary party, the court should have permitted the plaintiff to make him a party under the facts of the case. These facts were that the defendant had filed a motion to make the complaint more specific, and a motion to require the plaintiff to give bond for costs,.but did not raise the question of a defect of parties until shortly before the trial.

Jones was a necessary party. This is true because the cause of action here sued on is one not assignable at law. The case of Chicago, R. I. & P. R. Co. v. Cobbs, 151 Ark. 207, is similar to, and is decisive of, this case. Property 'belonging to -Cobb was destroyed by fire by the railway company. Insurance thereon covering only a part of the loss was paid by the insurance company, which took an assignment of Cobbs ’ cause of action against the railway company to the extent of the amount paid by it, and suit was brought by the insurance company for the sum .paid by it, and by Cobbs for the value of the property in excess of the insurance. There was a motion to remove the cause to the Federal court on the ground of diversity of citizenship. The motion to remove was overruled by the trial court, and in affirming that action this court said: “It is not shown in the petition or in the complaint that these are separable causes of action, nor is it contended that the causes of action asserted by the different plaintiffs are separable, and it is clear that they are not separable. The insurance companies, by virtue of the assignment to them of a portion of the right'of actions, are possessed of an interest in the subject-matter in controversy, and are therefore necessary parties. Cobbs, the other plaintiff, was a necessary party, not only from the fact that he was the owner of an interest in the subject-matter of this controversy, but also for the reason that he was assignor of that part of the cause of action which was assigned to the insurance companies, and since it is a right of action not assignable under our statute (Crawford & Moses’ Digest, § 475), the assignor was a necessary party to a suit to recover. St. Louis, I. M. & S. R. Co. v. Camden Bank, 47 Ark. 541. Under the statute cited above, only agreements or contracts in writing are assignable, and the cause of action in the present instance was not based on an agreement in writing. The insurance companies succeeded, by the assignment, to the right of action by Cobbs for the recovery of unliquidated damages on account of the wrongful act of the railway company. ’ ’

"We think, under the circumstances, the court'should have permitted Jones to be made a party plaintiff, imposing terms as to costs if thought proper so to do, but for the fact that at the time of the trial the cause of action in Jones’ favor was barred by the statute of limitations, and making him a party at the time that request was made would have been unavailing.

The judgment is therefore affirmed.


author: Humphreys, J.

text:
    Henry Quellmalz Lumber & Manufacturing Company v. Briney.
    Opinion delivered February 26, 1923.
    1. Sales — evidence as to breach of contract. — A finding that plaintiff had not broken his contract to manufacture and deliver lumber on board cars at specified prices held not contrary to a clear preponderance of the evidence.
    2. Logs and logging — estoppel to claim forfeiture. — Where vendors conveyed timber rights to a vendee with reservation of a vendors’ lien and stipulation that, upon default, all rights should cease, and the vendee conveyed same to defandant, who contracted with plaintiff to manufacture the timber into lumber and deliver same to plaintiff, held, in a suit by plaintiff to recover a balance due by defendant under such contract, the vendors were estopped to assert by cross bill their right to enforce a forfeiture as against defendant where they permitted him to purchase and manufacture the logs after default in payment of the purchase money, and also made continuous efforts to collect the purchase money.
    3. Equity — dismissal of cross bill. — It was not error to dismiss a cross bill against a party not shown to have any interest in the litigation and who in his answer disclaimed any interest therein.
    4. Equity — cross bill. — A cross bill to make vendor in a quit- ’ claim deed a party to a suit was properly dismissed, although the deed provided that the vendor would defend all suits brought by the representative of the original owner for the purpose of defeating title to the timher conveyed-; the expense of defending the suit not being an issue in the case.
    Appeal from Clay Chancery Court, Western District ; Archer Wheatley, Chancellor;
    affirmed.

      G. T. Bloockvorth, for appellant.

      F. G. Taylor and Fuhr & Futrellfor appellees.
   Humphreys, J.

This suit was commenced in the Western District of the Clay Circuit Court by appellee, J. R. Briney, against appellant to recover an alleged balance of $2,410.29 upon a written contract entered into on the 23rd day of July, 1919, by and between appellant and appellee, J. R. Briney, for the manufacture and delivery of different kinds of lumber oh board cars at Tipperary, Arkansas, at prices specified in the contract.

Appellant filed an answer admitting the execution of the contract, but alleging breaches thereof by said appellee, in failing to manufacture grades contracted for, and in failing to deliver same as per contract. By way of further defense, appellant pleaded that it was compelled to purchase a superior title to that of appellee to said lumber from George A. Burr and W. O. Poole, who had a lien thereon for the purchase money of the timber out of which the lumber was manufactured, and asked to be subrogated to the rights of Burr and Poole. It also alleged that Burr and Poole warranted the title thereto and agreed to hold it harmless. It also alleged that George Booser was the real party in interest, instead of J. R. Briney, and asked that Booser, Burr, and Poole be made parties defendant in its cross bill against them and Briney, in which it was alleged that said appellant sustained $5,000 damages on account of a failure to deliver the lumber to it.

George A. Booser filed an answer denying any interest in the litigation.

George A. Burr and W. O. Poole filed an answer denying that they guaranteed a title to the lumber when they sold same to appellant, but asserted a right to sell same under a vendor’s lien, retained by them in their timber- deed of date September 19, 1918, to F. C. Mullinix as trustee in bankruptcy of George A. Booser, bankrupt, from whom said appellee, J. R. Briney, purchased the logs out of which the lumber in question was manufactured. They asked and obtained a transfer of the cause to the chancery court of the Western District of said -county for the purpose of enforcing their alleged lien rights against the timber and lumber.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismissal of appellant’s cross bill and a judgment against appellant in favor of appellee, J. R. Briney, in the sum of $839.43 with interest, from which is this appeal.

The record reveals that on the 19th day of September, 1918, George A. Burr, W. O. Poole, and his wife, Dora C. Poole, conveyed the timber on 1,566.42 acres of land in the said county to F. C. Mullinix, trustee in bankruptcy of George A. Booser, bankrupt, for $20,000, $1,000 cash, and the balance in deferred payments, evidenced by said trustee’s certificates. The deed contains the usual granting, habendum and warranty clauses appearing in deeds of real estate. It also contains the following clauses:

“If default be made for a period of thirty days in the payment of principal and interest, the entire remaining purchase money and interest to become immediately due and payable,- and at such time all cutting, removing and manufacturing of the timber herein sold shall immediately cease. “And in consideration of the foregoing grant the said F. C. Mullinix, as trustee in bankruptcy, agrees that he will pay every sixty days for all timber removed by him from any lands, at the rate of two dollars per thousand feet for all soft wood, and five dollars per thousand feet for all hard wood, the amount of such payments to be credited on the notes first falling due after payments. Said W. O. Poole and George A. Burr retain a lien on all timber herein conveyed, except as herein provided, until said notes and interest be fully paid.”

The timber deed was placed on record immediately after execution and delivery. F. C. Mullinix cut and removed a large amount of timber, and cut quite a little which he did not remove. The down timber was principally in section 24. Mullinix sold the down timber in that section to J. R. Briney, who manufactured about 362,000 feet of it into lumber. Briney produced his returned check for $886.06, payable to F. C. Mullinix, evidencing that he had paid the contract stumpage price for the timber. George A. Booser testified that he kept the books for F. C. Mullinix, trustee, showing the amount of all timber cut and all money paid by Mullinix to Burr and Poole under the timber deed. According to his testimony, which was undisputed, Mullinix cut 1,365,157 feet of soft wood, and 352,546 feet of hard wood, paying therefor the stumpage price of $2 per thousand for soft wood and $5 per thousand for hard wood, or a total of $4,358.02, in .addition to $1,000 cash paid by him when the contract was entered into. Prior to the time Burr & Poole declared a forfeiture for the nonpayment of the purchase money due by F. C. Mullinix. trustee, J. R. Briney purchased the down logs in said section 24. During the period of default on the part of Mullinix, and before the forfeiture was declared, J. R. Briney entered into a written contract with appellant which is made the basis of this suit, and manufactured 275,589 or more feet of lumber which was stacked on the mill yard and marked by appellant’s agent, upon which appellant advanced $544.39, and afterwards expended $1,237.36 in hauling and placing same on board cars at Tipperary. This contract provided, in substance, for the cutting of not less than 200,000 and not more than 1,000,000 feet of lumber of different kinds by Briney. for appellant, at fixed prices; that the lumber should be log run No. 2, common and better; that the lumber should average not more than 20 per cent. No. 2; that said lumber .should be first stacked and dried at a sawmill on the land. and. after inspection, hauled to ,Tipperary and placed oil board cars by. Briney at Ms expense, when directed to do so by appellant; that advances shoMcl be made to Briney every two weeks, as the lumber was being manufactured, at the rate of $14 or $15 per thousand, balance to be paid when loaded on cars; that appellant should be allowed 2 per cent, discount on cash advanced.

Long after the lumber had been manufactured and stacked, to-wit: in the month of March, 1920, Burr & Poole declared a forfeiture because Mullinix defaulted in the payment of the purchase money certificates, and served notice on all parties that they claimed a lien on all the timber, including the lumber stacked on the mill yard. Thereupon appellants purchased the timber and lumber from Burr & Poole, and obtained a quitclaim deed thereto from them. Immediately after obtaining the deed, appellant took charge of the lumber, inspected, sold, and shipped same to its customers.

The testimony adduced by appellant tended to slow that it gave appellee every opportunity to haul and place the lumber on board cars at Tipperary, and that he refused to do so, and abandoned his contract. The testimony adduced by said appellee tended to show that he requested* appellant to permit him to haul and place the lumber on board cars, and that appellant refused to let him do so. We deem it unnecessary to set out the testimony upon this issue. Suffice it to say that, after a careful reading thereof, we cannot say that the finding of the chancery court, to the effect that Briney did not breach the contract is contrary to a clear preponderance of the evidence.

Appellant contends that the chancery court erred in holding that it obtained title to the lumber in question from Burr & Poole through Mullinix and Briney. It is argued that because Mullinix made default in the payment of the purchase money he automatically forfeited all right to cut the standing timber and to sell' or remove the down timber. In support of this argument appellant relies upon the following clause in the timber deed of date September 19, 1918:

“If default be made for a peifiod of thirty days in the payment of principal and interest, the entire remaining purchase money and interest to become immediately due and payable, and at such time all cutting, removing and manufacturing of the timber herein sold shall immediately cease.”

Appellee Briney made the contention that the clause quoted had no application to down timber which had been paid for according to the stumpage prices fixed in the deed. In support of this contention appellee relies upon the following clause in said timber deed:

“And in consideration of the foregoing grant the said F. C. Mullinix, as trustee in bankruptcy, agrees that he will pay every sixty days for all timber removed by him from any lands, at the rate of two dollars per thousand feet for all soft wood, and five dollars per thousand feet for all hard wood, the amount of such paym'ents to be credited on the notes first falling due after payments.”

Our interpretation of the evidence makes it unnecessary to determine, under the terms of the contract, whether down timber which had been paid for according to the fixed stumpage prices had been released from the vendor’s lien retained in the deed. At the time Briney purchased the logs from Mullinix and during the time he manufactured, the lumber, no forfeiture was declared by Burr & Poole. On the contrary, after default in the payment of the purchase money, they made continuous efforts to collect same. They permitted Briney to manufacture the down logs, which he had purchased from Mullinix, into lumber for appellant. We think Burr & Poole clearly estopped, by this contract, from asserting a lien upon the down logs for which it had been paid according to stumpage prices. Appellant acquired the right to the possession of the lumber, upon which it had made advances, from Briney. It was therefore unnecessary for appellant to purchase the pretended claim from Burr & Poole to the lumber in order to get possession thereof.

Appellant also contends that the court erred in stating the account between it and Briney. The alleged error consists in the fact, first, that the court made no allowance to appellant on account of there being more than 20 per cent, of No. 2 common, in the lot of lumber. The record fails to show that appellant sustained any damage on this account; second, -that the court charged appellant $15 per thousand for No. 3 lumber. The contract did not specify any price for No. 3 lumber. Testimony adduced was conflicting as to the value of that grade of lumber, and the court’s finding that it was worth $15 per thousand is not contrary to the clear preponderance of the evidence.

Appellant’s last contention is that the court erred in dismissing his crossbill against George A. Booser, George A. Burr and W. O. Poole. The record does not show that Booser had any interest in the litigation, and he disclaimed any. The timber deed procured by appellant from Burr & Poole to the lumber in question was a quitclaim deed. It is true, it contained an agreement to defend all suits which might be brought by Mullinix, or his assignees, for the purpose of defeating title to the timber conveyed. The expense of defending the suit was not made an issue in the case. The crossbill against all three of the parties was properly dissmissed.

No error appearing, the decree is affirmed.


text:
    Continental Casualty Company v. Hawkins.
    Opinion delivered February 26, 1923.
    Insurance — change of occupation — reduction of amount of insurance. — In an action on a policy of life insurance a provision in the policy that where insured changed his occupation to one classified by the company as more hazardous than his former occupation, the amount payable should be only the amount of insurance the premium would' have bought for him in the more hazardous occupation, is valid.

      Appeal from Pulaski Circuit Court, Third. Division; A. F. House, Judge;
    reversed.

      Roscoe R. Lynn, for appellant.
    1. There can be no recovery at all, for the reason that appellee breached his warranty in his application, in describing his duties as “Ice checker in factory, not handling, ’ ’ whereas he admits that he did handle ice and was really a laborer. 65 Ark. 298.
    2. He cannot recover the amount sued for because he had actually changed his occupation. He is entitled to recover only the amount the premium paid would buy in the more hazardous occupation. 64 So. 732.

      G. Denison Cherry, for appellee.
    1. The term “occupation,” as used in an application for accident insurance, is a comprehensive one, and comprehends the incidental as well as the main requirements of one’s vocation, etc. 218 Fed. 582, 585; 121 S. W. 785, 786; 55 Hun. Ill, 8 N. T. S. 202.
    2. Forfeitures, especially in the case of insurance policies, are not favored in law. 113 Ark. 174, 181; 132 Ark. 546, 549.
    3. The materiality and truth of the statements in the application is usually for the jury to determine, as is also the question whether a statement was made with intent to defraud. 1 C. J. 509, § 338; 150 Fed. 92, 80 C. C. A. 46; 133 Ark. 220. Statements should be construed with reference to the time made, unless they expressly-or impliedly refer to the future. 90 Ark. 264; 106 Ark. 91. Where the applicant makes a true and full statement of his occupation to the insurer’s agent, the company is bound, after loss, by the classification given him by the agent. 92 S. E. 8iS, 89.
    4. • The burden of proof was on the insurer! 1 C. J. 496, § 286; 131 Pac. 1084, 1086.
    5. Appellant did not plead a forfeiture nased on breach of warranty in the application, but in fact relied on the provisions of the pro-rate clause. It cannot maintain any such defense here. 95 Ark. 593; 83 Ark. 575, 582; 151 Ark. 554, 557.
    6. The application of the pro-rate provision of the policy was properly refused. 1 C. J. 436, § 83, 3a; 321 N. E. 296, 298; 190 N. W. 97; 96 Wis. 304, 71 N. W. 601; 58 Fed. 342, 7 O. C. A. 264; 1 C. J. 437, § 85c; 121 S. W. 785.
    7. The injury was received while the appellee was at Ms home after he had been discharged, and while he was out of employment altogether. His last employment should not be considered as having continued to date of injury. 180 Pac. 200, 202; 172 Pac. 106; 11 Tex. Civ. App. 273; 33 S. W. 133; 37 Pa. Super. 299; 82 Iowa 107; 47 N. W. 783; 31 A. S. R. 466; 11 L. R. A. 299.
   Humphreys, J.

Appellee instituted suit against appellant in the Third Division of the Pulaski Circuit Court, upon a personal accident policy, to recover $500 for the accidental loss of an eye. The issue joined by the pleadings was whether appellee was entitled to $500 or $150. This was dependent on whether appellee’s change in occupation from an “ice checker, not handling” to that,of a “laborer in foundry, not handling hot metal,” changed his classification from “C” to “XD” within the meaning’ of the standard pro rata clause contained in the policy, which clause is as follows:

“This policy includes the indorsements and attached papers, if any, and’ contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing an act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreations, in which event the company will pay only such portion of the indemnities provided in the • policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation. ’ ’

The cause proceeded to a hearing upon the pleadings and evidence, at the conclusion of which appellant requested the court to instruct the jury to return a verdict for $150 which it had tendered into court. The court refused to give the instruction over the objection and exception of appellant, and, over the objection and exception of appellant, sent the case to the jury to ascertain whether employment at the foundry was. more hazardous than at the ice company, and, if not, to return a verdict for appellee. The court, over the objection and exception of appellant, had, during the course of the trial, admitted evidence tending to show that the employment at the foundry was less dangerous than that at the ice company.

The jury returned a verdict in favor of appellee for $500, and a judgment was rendered in accordance therewith, from which is this appeal.

Appellant’s insistence for reversal is that the court erred in not construing the contract, under the undisputed evidence, to mean that the classification of appellee had been changed from ‘ ‘ C ” to ‘ ‘ XD ’ ’ by changing his occupation to one classified by the insurer as more hazardous than the one stated in the policy. The undisputed facts show that appellee stated, in his application, which was copied into and made a part of the policy, that he was employed by the ice company in the capacity of “ice checker, not handling;” also that the rate and classification manual, which became a part of the policy by express terms therein, shows that a laborer in a foundry, not handling hot metal, was rated and classified as class “XD;” also that appellee changed his occupation from that specified and classified in the policy as class “C” to that of a laborer in a foundry, not handling hot metal; also that appellant classified the occupation to which appellee changed as more hazardous than his occupation with the ice company.

The contract entered into between appellee and appellant provided that appellant might determine the relative danger between occupations. This being true, and appellee having changed his occupation from one specified and classified in the policy to one classified by appellant as more hazardous than the one stated in the policy; the pro-rate clause in the policy is applicable, and appellee was only entitled to recover the benefits which would have been provided in his policy if he had paid the same amount of premium and had been engaged in the occupation of laborer in foundry, not handling hot metal. Under the undisputed facts and terms of the policy appellee’s claim must be pro-rated from class “C” to class “XD,” entitling him to a recovery of $150. The trial court should have instructed a verdict for that amount.

On account of the error indicated the judgment is reversed, and judgment is directed to be entered here in accordance with the tender heretofore made.


author: McCulloch, C. J.

text:
    District Grand Lodge No. 11 v. Stevens.
    Opinion delivered March 5, 1923.
    1. Insurance — payment op dues to local secretary. — Where the •by-laws of a fraternal society provided that all endowment dues must be paid to the endowment secretary, the fact that the members of a branch lodge paid their dues to a local secretary, who in turn forwarded the dues to the endowment secretary, did not establish a general custom or course of conduct on the part-of the endowment department so as to abrogate the by-law requiring payment by the member and to confer authority on the local secretary as agent to collect.
    2. Insurance — custom as to payment op dues — jury question.— Whether there was a general course of conduct for the secretary of a local lodge to act for the fraternal society within the knowledge of the superior body as to show authority of the local secretary to collect dues held for the jury.

      Appeal from. Lee Circuit Court ; J. M. Jackson, Judge;
    reversed.

      J. F. Jones and Mann & McCulloch, for appellant.
    There was a disputed question of fact as to whether or not the assessment and dues had been paid by the insured prior to his death, and within the terms of the policy. It was error therefore to direct the verdict for the plaintiff. The constitution and laws of a mutual benefit society constitute a part of the contract of insurance. 142 Ark. 132. The facts in this case are not such as to constitute the local secretary the agent of the insurer. 2 C. J. 432.

      Albert P. Smith and Frank P. Fitzsimmons, for appellee.
   McCulloch, C. J.

Appellant is a fraternal society organized under the laws of the State of Arkansas and bearing allegiance to a national organization known as the “Grand United Order.of Odd Fellows in America.” There is a department of appellant organization designated in the constitution and by-laws as the district grand lodge endowment department, which furnishes insurance to members in good standing of the local lodges upon the payment of a small admission fee and the payment of quarterly dues. The policy is issued in the sum of three hundred dollars, and the present action is one to recover on a policy issued to Pittman Stevens,' a member of one of the local lodges of the organization.

The by-laws provide that the endowment department shall be under the control of the endowment board, consisting of the district grand master, the endowment secretary, and the endowment treasurer. A section of the by-laws reads as follows:

“Sec. 6. The endowment secretary, on receipt of the said first payment, shall issue to the member of the lodge a policy stipulating such payment. All endowment dues must be paid to the Endowment Secretary within thirty days after the beginning of the quarter.”

Another by-law provides for automatic forfeiture in the event of nonpayment of dues within the time prescribed. These provisions are indorsed upon th'e policy itself.

The provisions indorsed on the policy with reference to forfeiture in case of nonpayment of dues reads as follows: “The failure of a member to pay quarterly dues to the endowment secretary within thirty days after the beginning of each quarter will forfeit this policy without notice.”

It was the custom in the lodge to which Pittman Stevens belonged for the members to pay their quarterly dues to the secretary of that lodge, who remitted the same to the endowment secretary with a list showing the names of the members who had paid and the amounts. In July, 1921, three of the members of this local lodge, including Stevens, were unable to pay their dues, which were payable not later than July 31, and the lodge decided to make each of them- a loan of sufficient amount to pay their dues, and the secretary of the lodge was instructed to send in the amount to the endowment secretary with the payments made by other members. This was done, but, in making out the list of those who had paid, the lodge secretary erroneously omitted the name of Stevens, and instead thereof put in the name of a member named Martin, who had not paid. The endowment secretary, on receipt of the list, credited the amounts to the respective members who were named on the list. This payment was -made to the endowment secretary on the last day for payment, and the mistake was not discovered until after the death of Stevens, which occurred on August 27, 1921, and the proofs of loss were subsequently sent in.

Liability was denied on the ground that Stevens forfeited-his policy by failure to pay the July dues within the time required by the laws of the association.

At the conclusion of the trial the court gave a peremptory instruction in favor of appellee and judgment against appellant was accordingly entered for the full amount of the policy.

The ruling of the court in taking the case irom the jury is defended under authority of the case of Sovereign Camp v. Newsom, 142 Ark. 132, 14 L. R. 903, when the court held that where the clerk or secretary of a local branch of a mutual benefit society is charged with the duty of collecting and forwarding monthly assessments and is subject to suspension or removal for failure to discharge his duties, he is, in fact, the agent of the superior organization in the collection of such dues, “notwithstanding a rule or.by-law of the order recites that such officer in collecting or forwarding assessments shall be the agent of the members of the subordinate lodge. ’ ’ Thg facts in the present case are quite different, however, from those recited in the opinion in the case referred to above. In that case the by-laws of the organization provided that it should be the duty of the clerk or secretary of the local organization to collect and forward the dues, and that for failure to discharge his duties the superior body might remove him. In the present case there is no authority conferred by the by-laws upon the secretary of the local lodge to collect the dues. On the contrary, the 'by-laws distinctly provide that payments shall be made by the members to the endowment secretary within the time prescribed. The by-laws confer no authority whatever on the part of the endowment department or any of the officers thereof to control the local secretary, and there is proof tending to show that there was no attempt to exercise any control over him. The most that is shown in the proof is that it is a custom in this particular lodge for the members to pay the local secretary and for the latter to forward the amount to the endowment secretary. The case is therefore not controlled by the former decision referred to. In that case, as in many other cases,, we have decided that the by-laws constituted a part of the contract between the members and the society.

The mere fact that the members of this particular lodge paid their dues to the local secretary, who, in turn, forwarded the sum to the endowment secretary, does not establish a general custom or course of conduct on the part of the endowment department or its governing officers so as to constitute an abrogation of those provisions of the by-laws which require the payment to be made by the member and to confer authority upon the local secreaary as the agent of the endowment department to collect the dues. Sovereign Camp W. O. W. v. Barnes, 154 Ark. 486.

The testimony in the case at most only made it an issue for the jury to determine whether or not there had, in fact, been established such a general course of conduct within the knowledge of the governing officers as to show authority to the local secretary to collect the dues for the superior body.

The fact that a mistake was made in omitting Stevens’ name from the list of members who had paid and inserting in lieu thereof another member who had not paid is not a material factor as to the question of liability under the policy, for the case turns upon the question whether or not the local secretary was the agent of the superior body in collecting and forwarding the dues. If he was only the agent of the local lodge or of the local members, and not of the superior body, the latter was not responsible for the mistake, and the forwarding of the money for the payment of Martin’s assessment did not constitute a payment of Stevens’ assessment, notwithstanding the mistake.

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

Hart, J., dissents.


text:
    Blakely v. Newton.
    Opinion delivered March 5, 1923.
    1. Appeal and error — final decree- — time for appealing. — Where a -final decree was rendered in a case, and it was not appealed from within six months, the appeal will be' dismissed.
    2. Appeal and error — moot case. — An appeal involving the right of appellee to an -office in -a fraternal society will be dismissed where the term of appellee’s office has expired.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    appeal dismissed.

      Scipio A. Jones, R. S. Bowers, L. J. Brown and Thomas J. Price, for appellants.
    When an order such as this has a complete system of procedure for redress of grievances, and the courts of that order have in good faith passed upon and decided a case presented, such decision is conclusive. 225 S. W. (Ark) 335; 2 Daly (N. Y.) Com. 329, 357, 359; Yes. & B. 154; 144 Mass. 175; 129 Mass. 70; 137 Mass. 368; 52 111. 128. The laws of such an order are binding on the members, and to them the members must look for redress of grievances rather than to the courts. 110 N. W. 358, 100 Minn. 87; 116 La. 270, 40 A. S. R. 700; 92 S. E. 730, L. R. A., 1917-E, 995; 111 Mass. 185; 8 Mo. App. 148. The courts will not interfere with the decisions of a tribunal within an order in admitting, disciplining,, suspending or expelling members, further than to ascertain whether or not the proceeding was in accordance with the rules and lawts of the society, was in good faith, and not in violation of the laws of the land. 19 R. C. L. 1235; 75 Cal. 308, 17 Pac. 217; 58 Conn. 552, 20 Atl. 671; 2 Whart. (Pa.) 309, 52 Pa. St. 125. See also notes: 30 Am. Dec. 265; 59 A. S. R. 208; 25 L. R. A. 149; 49 L. R. A. 355.

      J. F. Jones, W. Leon Smith, and Rowell & Alexander, for appellees.
    1. The appeal should be dismissed. The decree of May 18, 1921, was final, and no appeal therefrom was taken within six months. C. & M. Digest, § 2140; 152 Ark. 581; 145 Ark.. 303; 122 Ark. 255; 134 Ark. 386; 108 Ark. 523.
    2. So far as pertains to.the decree of January 25, 1922, the case should be affirmed. There was oral evidence heard on the part of the plaintiffs below, which is not set out in the transcript. 129 Ark. 193.
   McCulloch, C. J.

The Grand United Order of Odd Fellows in America is a fraternal society composed of negroes, and the branch of the organization in Arkansas is incorporated under the laws of this State under the name of “District Grand Lodge No. 11 of the Grand United Order of Odd Fellows in America.” The Arkansas branch of the order bears allegiance to the national organization, and is subject to its constitution and bylaws.

The district grand lodge meets biennially, and at the meeting at Hot Strings in August, 1919, T. L. Newton, one of the appellees, was reelected district grand master, and the other appellees were elected to other offices in the district grand lodge. The next meeting was held in the city of Pine Bluff in August, 1921, and Newton was reelected, but, according to a special plea filed 'Since the present case came here on appeal, Newton, since his election, ceased to be grand master and another, one Taylor, has been elected, or appointed, in his stead.

Shortly after the Hot Springs meeting at which Newton was elected district grand master, charges were preferred against him by two members of one of the local lodges for alleged personal and official misconduct, and Newton was put upon trial before the executive board of the district grand lodge on these charges, and was acquitted. The individuals who preferred the charges took an appeal to what is termed the “-subcommittee of management,” which seems to be, under the by-laws of the national organization, a governing board of the national organization. The subcommittee of management entered an order finding Newton guilty of the charges and removed him from office. Another order made by tlie subcommittee of management appointed J. I. Blakely, one of the appellants, as district grand, master in the place of Newton. The order contained a specification that Blakely’s tenure should extend no longer than to the next meeting of the Grand Lodge of Arkansas, which, under the by-laws, was to convene in August, 1921.

Appellees instituted this action in the chancery court of Jefferson County on January 16, 1920, against Blakely and the other appellants who were associated with him in the controversy which had arisen between the Newton party and the Blakely party. In the complaint it was alleged that Newton had been regularly reelected grand master at the Hot Springs meeting for the ensuing term of two years; that a resolution was adopted at that meeting, in accordance with the by-laws of the order, fixing the next biennial .meeting to be held at Pine Bluff in August, 1921; that Newton had been tried and acquitted of the charges against him, and that the order of the subcommittee of ¡management was void for the reason that the hy-laws did not provide for an appeal to that body by the prosecutors of charges, and that the appellants were wrongfully interfering with Newton and the other grand lodge officers in the discharge of their official duties, particularly with reference to the holding of the next biennial meeting at Pine Bluff. The prayer of the complaint was that appellants be restrained from the aforesaid interference with Newton and the other officers of the grand lodge, and the chancellor granted a temporary injunction in accordance with the prayer of the complaint.

The appellants, or some of them, had instituted an action against appellees in the chancery court of Garland County to enjoin the latter from attempting to exercise the functions of office in the grand lodge, but the prosecution of that case was restrained by an order made by the Jefferson Chancery Court.

Appellants appeared in the Jefferson Chancery Court and filed an answer and cross-complaint .asking for the same relief which they had asked for in the Garland Chancery Court. The feature of the case which related to the adoption of the resolution of the grand lodge at Hot Springs calling the next meeting to 'be held at Pine Bluff was separately heard by the Jefferson Chancery Court on May 18, 1921, on oral testimony, and a decree was rendered finding that the next ensuing meeting to be held at Pine Bluff in August, 1921, had been fixed by resolution adopted by the grand lodge at Hot Springs in accordance with the laws of the association, and dismissing the cross-complaint of appellants for want of equity, and restraining them from “further interfering with Thomas L. Newton as grand master in the discharge of his duties as such, and calling the grand lodge to convene in Pine Bluff, Arkansas, in 1921. ’ ’

There was no separate appeal from that decree, but another decree was rendered by the court on January 25, 1922, restraining appellants from interfering with Newton and the other officers in the discharge of their official duties.

A transcript of the whole record in the case was filed here on July 24, 1922, and the clerk granted an appeal.

The decision of the case upon the merits of the controversy turns primarily upon the right of the prosecutors of the charges against Newton to appeal to the subcommittee of management and the authority of that body to hear the cause on appeal, but appellees have filed a motion to dismiss the appeal on the ground that the decree of May 18,1921, was final, and that the appeal was not prosecuted within six months, and also that since Newton was reelected as grand master at the Pine Bluff meeting and has since retired from that office, the question of the legality of his incumbency of the office for the term beginning with the Hot Springs meeting and ending with the Pine Blnff meeting has become a moot one.

We are of the opinion that the contention of appellees is correct, and that the appeal should be dismissed. The decree of May 18, 1921, was final, in form as well as in substance, as to all the matters adjudicated. It was not merely an interlocutory order granting or continuing an injunction, but it finally adjudicated the question of the legality of the meeting to be held at Pine Bluff.

In the recent case of Road Improvement District No. 1 v. Cooper, 150 Ark. 505, we said that “an order or decree extending an injunction for a fixed time, or until the happening of a certain event, may be final, but it appears clearly from the recitals in the decree that the court meant to continue control over the injunction granted in this case and over the subject-matter of the litigation.” The court did not retain control over that feature of the case, but finally adjudicated it, and the adjudication related to a matter which was to occur at a fixed time. It was necessarily final in its nature, for it completely covered the subject-matter of that part of the litigation.

Now, since we find that that part of the decree was final, and no appeal was prosecuted from it, it follows that the question of interference as adjudicated in the last decree has become moot. The litigation be-, tween the parties only related to the validity of the order of the sub-committee of management in deposing Newton from office and appointing appellant Blakely for the remainder of that term. That term expired, and an election was held for the next term at a meeting the legality of which was adjudicated by the decree, from which no appeal was prosecuted. We are of the opinion that this phase of the. case is controlled by the decision of this court in Kays v. Boyd, 145 Ark. 303.

The appeal is therefore dismissed.


text:
    McKinney v. Beattie.
    Opinion delivered March 5, 1923.
    1. Tenancy in common — adverse possession. — Where the land of intestate ascended to his father for life as a new acquisition, with reriiainder to his brother and sister, and the father died, devising it to the brother, who occupied it as his own, adversely to the sister, for more than seven years, his adverse possession constituted such disseizin as set the statute of limitation in motion.
    2. Limitation op actions — -effect of mistake of law. — Mere ignorance on the part of a cotenant concerning her right to land adversely occupied by another tenant, or even a joint mistake of law on the part of both cotenants as to their respective rights to the land, does not affect the running of the statute of limitations, under which title by adverse possession is claimed, the mistake not being caused by fraudulent concealment or misrepresentation.
    Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Berry & Wheeler, for appellant.
    This was a new acquisition. Appellant and George A. C. Beattie became the owners in fee simple of the lands at the death of their brother, their possession being postponed until the death of their father. 15 Ark. 555; 34 Ark. 590; 75 Ark. 19. They became tenants in common at the death of the brother, in 1881, the mere right of possession being postponed. If, however, their title was postponed until the death of the father, appellant is still entitled to judgment. Actual notice of adverse holding was never brought home to her, and the will of Madison Beattie did not amount to constructive notice of ouster. 69 Ark. 95; 76 Ark. 525; 99 Ark. 446; 103 Ark. 425. This will did not convey color of title. It states: “I give to my son * * * the farm * * * which was owned by my son William * * thereby limiting the quantity and extent of the estate devised. A life tenant has no interest in land that he can devise by will. 25 R. I. 332, 55 Atl. 889; 50 N. W. 143; 104 Ark. 439; Id. 600. The -source of title goes back to William. This is in effect an attempt to assert title under the will against an older title derived, by descent, which cannot be done. 8 Ohio 87, 31 Am. Dec. 432; 49 Am. Dec. 379; 23 N. E. 225; 49 Ark. 242; 150 Ark. 347. All the parties were residents of Virginia. Their ignorance of the Arkansas statutes pertaining to descents and distributions, or their mistaken idea as to the descent, was a mistake of fact and not of law. As to mistakes of law, and when the courts will grant relief, see 13 Ark. 129; 10 Am. Dec. 323, note; 51 Me. 140, 81 Am. Dec. 564; 1 Storey, Eq. § 122-130; I Head 77. If George A. C. Beattie was not mistaken as to the law, and knew that appellant was entitled to a half-interest in the lands, his withholding this knowledge from his sister was an active fraud against her, and neither he nor his heirs could claim or reap the benefits of such fraud. 2 Pomeroy, § 894, note 2, 3d edition; Id. § 901. The doctrine of constructive notice from possession is applied only to protect him who has equitable rights, and not for the benefits of one who is without equity. 48 Ark. 409. The burden of proof is on him who asserts title by adverse possession, and he must show every element necessary to constitute title under the statute. 65 Ark. 422; 76 Ark. 426; 82 Ark. 51; 94 Ark. 118; 99 Ark. 446.

      C. W. Norton, for appellee.
    Ignorance of the right of action does not avoid the statute of limitations. 25 Cyc. 1212; 17 R. C. L. 831; 85 Ark. 584; 116 Ark. 198, 172 S. W. 1006; 61 Ark. 527, 33 S. W. 953. Non-residence does not avoid it. 96 Ark. 448. Mistake does not avoid it. 66 Ark. 452, 51 S. W. 321; 25 Cyc. 1112.
   McCulloch, C. J.

Appellant instituted an action in the circuit court of Crittenden County to recover possession of an undivided half interest in a tract of land in that county, title to which appellant claims as tenant in common of appellees. The statute of limitation was pleaded as one of the defenses, and the cause was transferred to the chancery court on motion of appellees, apparently without objection on the part of appellant; at least there is no objection urged here.

The facts are undisputed with respect to the origin of the title asserted by the respective parties. The land in controversy was originally owned and actually occupied as a farm by William F. Beattie, who died intestate and without issue in the year 1881, leaving surviving his father, Madison Beattie, and sister and brother, Mary B. McKinney and George A. O. Beattie, respectively. The land was a new acquisition, and under the statutes of this State (Crawford & Moses’ Digest, § 3480) ascended to his father, Madison Beattie, for life, and then descended in remainder to the collateral kindred of the intestate.

Immediately after the death of William F. Beattie, his father, Madison Beattie, took possession of the land and occupied it until he died on July 31, 1885, leaving a last will and testament, by which he undertook to devise the whole of the land to his son, George A. C. Beattie. The will of Madison Beattie was probated in Virginia, where he resided, and also in Crittenden County, Arkansas, and his son, George A. C. Beattie, immediately took possession of the land and occupied it until his death in the year 1919. The appellees are the children and only heirs at law of George A. C. Beattie.

According to the undisputed evidence, George A. C. Beattie was the sole occupant of the land from the time he took possession immediately after the death of his father, and he occupied it as his own and did not share the rents and profits with his sister, the appellant. She testified that she made no claim to the land for the reason that she believed, until after the death of her brother, George A. C. Beattie, that her father, Madison Beattie, had inherited the land in fee simple from William F., and that the title passed to George A. C. Beattie under the will of hér father.

We think that the evidence justified the finding by the chancery court that the possession of the land by the father of appellees was adverse for more than the statutory period, and that such possession constituted an investiture of title. The evidence shows that the possession of George A. G. Beattie was, from the start, adverse and not in recognition, either expressly or impliedly, of the rights of any one else. It is true that, according to the testimony of appellant, both she and her brother were resting under the belief that the latter had acquired title under the will of their father, Madison Beattie, but this does not alter the fact that the possession was in fact adverse to the rights of the cotenant, and constituted in law an ouster, which put the statute of limitation in motion. We say this in full recognition of the rule that possession of one of the cotenants is possession of both, but in this case the adverse occupancy was brought home to appellant as one of the cotenants, and constituted such disseizin as put the statute of limitation in motion.

The facts in the case were sufficient, we think, to completely satisfy the rule stated by this court in Singer v. Naron, 99 Ark. 446, as follows: “In order therefore for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be 'brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed.”

Mere ignorance on the part of appellant concerning her inheritance, or even the joint mistake of law on the part of appellant and her brother as to their respective rights to the land, did not affect the operation of the statute. Ignorance of the law, or even of facts, afford no- immunity from the operation of the statute unless the mistake is caused by fraudulent concealment or misrepresentation. McKneely v. Terry, 61 Ark. 527; Hibben v. Malone, 85 Ark. 584; Conditt v. Holden, 92 Ark. 618, 135 Am. St. 206.

Finding that the court was correct in its decree in favor of appellees on the ground of the bar of the statute of limitation, it is unnecessary to discuss the other grounds upon which the decree is sought to he upheld.

Affirmed.


author: Wood, J.

text:
    Wells v. McKay.
    Opinion delivered March 5, 1923.
    Principal and agent — -power op agent to rent land. — A power of attorney which authorized an agent to collect rent, sell crops, make settlements concerning the property or “do any other thing that may seem to him best in the premises,” held not to authorize the agent to lease the premises, the general language quoted referring to the particular facts specifically mentioned.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    affirmed.

      Davis, Costen & Harrison, for appellant:
    1. Under the uncontroverted evidence in this case, there is the plain inference that Mrs. -Stacy knew of Allee’s contract with the appellant, and that he .acted as her agent in the transactions with him. Such being the -case, it was her duty to repudiate his agency in the matter of the rental contract. 21 R. C. L. 919, § 99; 80 Ark. 302; 96 Ark. 505; 124 Ark. 360; 96 U. S. 648.
    2. The power of attorney -of itself gave Allee authority to rent -the land; but, if there is -any doubt as to the import of the language used, it should be construed most strongly agains-t the grantor of -the power, where the interests of third parties intervene. 79 A. S. R. 127; 98 Id. 553.

      R. A. Nelson, for appellees.
    Allee was authorized to collect rents, but he was not authorized by the power o-f attorney to enter into rent or lease contracts. 4 Elliott on Contracts, § 2868.
    Appellant having been -advised by Allee himself that he was the agent of Mrs. Stacy, it was appellant’s duty, at his own peril, to ascertain the scope of the agent’s authority. 62 Ark. 3; 105 Ark. Ill; 119 Ark. 53. See also 66 Ark. 256; 31 Cyc. 1049; Id. 1053; Id. 1073; Id. 1075.
   Wood, J.

This action was instituted by the appellees against the appellant to recover the possession of a certain tract of land in Mississippi County. The appellees alleged that appellant rented the land for the year 1919, and took possession thereof and cultivated the same for that year, and that his rent contract expired January 1, 1920, but that appellant refused to surrender possession, although duly notified in writing so to do. The appellant answered denying that he unlawfully retained the premises, but set up that he was holding the same under a written contract with the owner executed by her attorney in fact, which contract he set out and made an exhibit to his answer, the material part of which is as follows: “I hereby authorize the said Sam Wells to gather and market the third of the corn and the fourth of the cotton if he should deem it best to do so. I have also agreed that he shall have the place for 1920 on the same terms he now holds it, or, if we later agree to a money rent, he shall have the place for $8 per acre.”

The undisputed testimony shows that the appellant on September 17, 1919, entered into a written contract for the rent of the land in controversy for the year 1920 with F. M. Allee, who signed the same as “attorney in fact for Mrs. Abigail Stacy.” The authority of Allee is contained in a power of attorney signed by Mrs. Stacy, which constitutes Allee her attorney in fact and prescribed his authority as follows: ‘ ‘ * * * for the purpose of collecting my rent, and selling any or all crops of any description or making disposition of the same, and that- any act or acts done by my said attorney I hereby ratify and confirm the same by these presents. * * * And he, my said attorney, is lawfully authorized and employed to make any and all settlements concerning the same property, or any interest therein, in my name, or do any and all things that I could do, pay the taxes, or bring any suit to protect the title to the same, or do any other thing that may seem to him best in the premises. To sell or contract for the sale of the growing timber on said farm [describing same] * * * Said attorney to have full power to do anything whatsoever requisite and necessary to be done in the premises as fully as I could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that F. M. Allee, or his substitute, said attorney, shall do or cause to be done by virtue hereof.”

Soon after the rent contract -was entered into, the appellees purchased from Mrs. Abigail Stacy, as evidenced by her warranty deed of October 19, 1919, the land in controversy. The negotiations for the purchase of the land were conducted with Mrs. Stacy by correspondence. The deed was brought to the appellee by F. M. Allee, and the appellees paid to him the consideration for the land. The appellees knew that the appellant was in possession at the time they purchased the land, and made it a condition of the sale that Mrs. Stacy deliver possession to them.

The testimony of Mrs. Stacy was to the effect that she did not authorize Allee or any one else to rent the land to the appellant for the year 1920, and that he had no contract with, her to rent the land that year. The testimony on the part of the appellant showed that Allee collected the rents from the lands and directed the improvements that were made on the lands by the appellant while he was occupying the same. Upon the above facts the court directed a verdict in favor of the appellees. Judgment was entered in accordance with the verdict, from which is this appeal.

The only question on this appeal is whether or not Allee had authority, under the power of attorney in evidence, to rent the land for the year 1920. The court correctly construed the power of attorney as not giving Allee any such authority. The authority conferred upon Allee is dearly expressed in the instrument, and nowhere in it do we find, that he is given the authority to rent the land. His authority is to collect rent, sell crops and growing timber, make all settlements concerning the property, pay the taxes, bring suit to protect the title, or “do any other thing that may seem to him best in the premises.”

The words, “do any other thing that may seem to him best in the premises” do not confer a general authority upon Allee to do anything not connected with the particular acts of authority previously designated. These words refer to the doing of anything that may be necessary to effectuate the particular acts of authority previously expressed. The objects of the power conferred upon Allee having been definitely expressed, the instrument cannot be construed to include other powers and objects not connected with these specifically mentioned. See Welch v. McKenzie, 66 Ark. 256-58. As we construe the instrument, it does not confer authority upon Allee to act generally in all matters concerning the land in controversy, but only the authority to act in the particulars mentioned, which, as we have said, nowhere mentions authority to rent. See 4 Elliott on Contracts, § 2868. Therefore Allee exceeded his authority in renting the land to the appellant for the year 1920. The facts do not warrant the inference that Mrs. Stacy was estopped from challenging the authority of her agent to rent the land. Appellant therefore in renting the land for the year 1920 dealt with Allee at his peril. See U. S. Bedding Co. v. Andre, 105 Ark. 111; Bank of Home v. Hadley Milling Co., 119 Ark. 53.

The court was correct in its interpretation of the power of attorney, and did not err in directing a verdict for the appellees. Therefore let the judgment be affirmed.