text:
    Richardson v. Fowler.
    Opinion delivered May 29, 1922.
    1. Sales — consignment to shipper’s order — delivery.—Where grain was consigned to shipper’s order with directions to notify buyer, a delivery to carrier did not pass title to buyer, there being no evidence that the parties intended such delivery to have that effect.
    2. Sales — necessity op delivery. — Actual or constructive delivery is necessary to complete a sale of chattels.
    Appeal from Randolph Circnit Court; Bene H. Coleman, on exchange, Judge;
    reversed.
    STATEMENT OP PACTS.
    H. T. Fowler, doing business as the Fowler Commission Company at Kansas City, Mo., sued H. L. Richardson to recover $1,055.83, the balance alleged to be due for the purchase price of a car of corn.
    The contract sued on was made by letters and telegrams. On the 12th day of June, 1920, H. L. Richardson sent a telegram from Reyno, Ark., to the Fowler Commission Company at Kansas City, Mo., asking the price on No. 3 mixed corn in bulk and date of delivery. The Fowler Commission Company sent a telegram to Richardson on the same day as. follows: “Bulk three mixed com, dollar ninety Reyno, prompt shipment, answer quick.” On the same day the Fowler Commission Company wrote a letter to Richardson in which the above telegram was copied 'and was confirmed as follows: “Bulk No. 3 mixed corn, dollar ninety per bushel delivered at Reyno.” Richardson received the above telegram and letter. Upon receipt of the telegram, Richardson wired back, “Accept your offer any size car at once, @ dollar ninety, c bu. ’ ’
    On June 14, 1920, the plaintiff shipped a car containing 1,625 bushels of No. 3 bulk corn over the St. Louis & San Francisco Railroad to the Fowler Commission Company at Reyno, Ark. This was the only railroad company from Kansas City, Mo., to Reyno, Ark. The car of No. 3 mixed bulk corn was inspected by a licensed grain inspector of tbe United States, whose inspection certificate shows the car’of corn to have been as represented when delivered to the railroad company.
    On June 14, 1920, plaintiff also drew a draft on defendant for the sum of $2,876.61, being the purchase price of the corn at $1.90 per bushel, less the freight from Kansas City, Mo., to Reyno, Ark. The Fowler Commission Company was the consignor in the bill of lading and the car of corn was consigned to order of Fowler Commission Company, destination, Reyno, Ark., notify H. L. Richardson at Reyno, Ark. At the bottom of the bill of lading appears the signature of the agent of the railroad company and also that of Fowler Commission Company as shipper'. The car of corn reached Reyno on June 22,1920. It was hot and souring and had so deteriorated that it would not have graded No. 3 and was worth only about $1.45 per bushel in its damaged condition. Richardson refused to accept the car of corn on account of its damaged condition, and it was shipped back to Kansas City, Mo., to the plaintiff. The plaintiff then-sold the car of corn at $1.45 per bushel, which was the best price obtainable in its damaged condition. The plaintiff credited the defendant-with the amount received' for the car of corn in its damaged condition and sued the defendant for the balance of the purchase money. The defendant refused to accept the corn or to pay the balance of the purchase money and defended the suit on the ground that he had a right to reject the com because it was damaged when it reached Reyno.
    The case was tried before the circuit court sitting as a jury. The court was of the opinion that under the facts recited above, the delivery of the corn by the plaintiff to the carrier at Kansas City, Mo., constituted a delivery to the defendant, and that the defendant was liable for the balance of the purchase price.
    Judgment was accordingly rendered in favor of the plaintiff, -and the defendant has appealed.

      Schoonover & Jackson, fox- appellant.
    This case differs from the case of Roberts Cotton Oil Co. v. Grady, 105 Ark. 53, in that the corn was consigned to the seller’s own order, and not to the order of the buyer. Where that is done the carrier is not authorized to treat the person to be notified as a coxxsignee. It cannot, without liability to the true owner of the goods, deliver the consignment to the party to be notified without the production and surrender of the receipt or the bill of lading. 10 C. J. 259; 116 Ark. 198. See also 4 R. C. L. 842, § 294; 125 Tenn. 658. Under the admitted facts appellant is not liable to the appellee in any amount.

      W. L. Pope and M. D. Bowers, for appellee.
    Delivery of goods to a common carrier, in pursuance of the directions of the purchaser, is delivery to the purchaser. 44 Ark. 558; 53 Id. 200; 79 Id. 603; 98 Id. 482; 105 Id. 56; 106 Id. 477; 137 Id. 397; 138 Id. 350.
   Hart, J.

(after stating the facts).

The law in the case has been settled in favor of the defendant by several decisions of this court, and we cite the following: Gibson v. Inman Packet Co., 111 Ark. 521; Georgia Marble Finishing Works v. Minor, 128 Ark. 124; McGehee v. Yunker & Ronk, 137 Ark. 397.

In the last mentioned case the court said that the delivery of goods by the seller to the carrier duly consigned to the purchaser constitutes a delivery to the purchaser and consummates the sale. The court also said that the converse of the rule is, that where the seller consigns the shipment to his own order, thus manifesting his intention to reserve his dominion and right of disposition over the property, nothing else appearing to manifest an intention to pass the title, such consignment does not constitute a delivery to the purchaser. In that case the testimony tended to show that the parties agreed on a method of delivery of the potatoes by delivery to the carrier and that the bill of lading was made out in the name of the seller to be changed as soon as the consignment reached Ft. Smith. The court said that the eiroumstances warranted the inference that the parties intended that the sale would be complete, and that the title to the potatoes should pass by delivery to the carrier. In such cases oral proof may be admitted to show the real intention of the parties to the transaction with respect to the question of delivery.

In the present case there is nothing in the record tending to show that the parties agreed that the corn should be consigned to shipper’s order when the contract for its purchase was executed. The defendants purchased from the plaintiff a car of corn of a certain grade for a stipulated price. The plaintiff on his own motion consigned the corn to himself at the place where the defendant lived, with directions on the bill of lading to notify the defendant. Thus it will be seen that the plaintiff reserved his dominion ever the corn until the purchase price was paid by the defendant. There was no agreement between the parties or anything else in the record tending to show that the plaintiff intended to pass the title to the corn to the defendant when it was delivered to the carrier.

There being nothing in the record from which it could be legally inferred that the sale was complete when the plaintiff delivered the corn to the carrier, the court erred in finding for the plaintiff. A delivery, either actual or constructive, is essential to complete a sale of chattels, and the title does not pass untilthere has been such a delivery.

As we have said, the plaintiff having consigned the corn to shipper’s order without any agreement in this respect with the defendant, and there being nothing else in the record from which it could be legally inferred that plaintiff intended to pass the title when he delivered the corn to the carrier, the circuit court should, as a matter of law, have found for the defendant and rendered judgment accordingly. ‘

Therefore the judgment will be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Brewer.
    Opinion delivered May 29, 1922.
    1. Exceptions, bill of — certification.-—Special act No. 163 of 1921, p. 270, applicable to the First Judicial Circuit, does not render sufficient the approval and certification of a bill of exceptions by the official stenographer, without the approval of the presiding judge-
    2. Appeal and error — presumption.—Where the trial court, by overruling a demurrer to a complaint, decided that the complaint stated a cause of action, it will not be presumed on appeal, in the absence of a -bill of exceptions, that a cause of action was proved and the complaint amended to conform to the proof-
    3. Pleading — when demurrer to complaint overruled. — If the facts stated in a complaint, with every reasonable inference therefrom, constitute a cause of action, a demurrer to the complaint should be overruled.
    4. Railroads — failure to drain right-of-way. — A railroad company had a right to remove earth from its right-of-way with which to construct its tracks and repair its embankment, and, though it voluntarily dug a ditch to drain a hole thereby created, its failure to continue draining it gave no right of action to a contractor subsequently contracting to construct a highway across such hole.
    Appeal from "White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Thos. B. Pryor and Ponder £ Gibson, for appellant.
    Tlie complaint' did not state a cause of action. It was rainfall and surface water that filled tbe borrow-pit. Not even a property owner would bave bad tbe right to complain, much less tbe plaintiffs, wbo were mere contractors. 39 Ark. 463, 471-47-6; 27 Id. 572; 29 Id. 569; 66 Id. 275; 95 Id. 349; 125 Id. 372; 123 Id. 1; 75 Me. 284; 101 5. W. 934; 40 Cyc. 579. Appellant bad tbe right to use the dirt on its right-of-way and to dig tbe borrow-pit; also to ditch tbe same, though not compelled to do so, for tbe purpose of drainage, without incurring liability for failure to keep it up, even to a property owner. 39 Am. St. Rep. 344; 43 N. W. 849; 78 Mo. 504; 86 Am. Dec. 216; 53 Am. Rep. 581.

      Bnmclige <& Neelly, for appellee.
    The complaint states a canse of action. The authorities cited by appellant favor the appellee’s contention rather than that of 'appellant. We call special attention to 39 Ark., cited by appellant, and to the rule as laid down at page 472. See also 66 Ark. 275; 95 Ark. 345; 123 Ark. 1, 6. Under the testimony, it was a question for the jury whether or not this was surface water that caused the damage, and whether or not the railroad company was negligent in not keeping the ditch open. If the complaint did not sufficiently state a cause of action, it should be treated 'as having been amended to conform to the proof.
   Smith, J.

Appellees, who were the plaintiffs below, filed a complaint containing substantially the following allegations: That on or about the-day of April, 1920, plaintiffs contracted with the commissioners of North Arkansas Highway Improvement District No. 1 to construct several miles of highway, commencing near the town of Bradford and running parallel with the tracks of the defendant, Missouri Pacific Railroad Company, in a northerly direction. That the railroad company, in constructing its double track and repairing its embankment, dug a hole, commonly known as a borrow-pit, on the west side of said railroad track, said hole being about 150 feet long, 100 feet wide, and 5 feet deep. That the highway, as laid out 'by the engineers and adopted by the commissioners of the road district, passed very nearly over the center of said hole, and that it was necessary to fill up said hole to construct a base for said road.

Plaintiffs further allege “that after said railway company had dug the hole above referred to, on account of the rains the same' became filled with water. That the railway company dug a ditch running- from said water-hole north to a creek, said ditch being along and upon the right-of-way of the said defendant railway company, for the purpose of draining said hole. That the said ditch performed the purpose for which it was in: tended up until sometime in the spring of 1920, when the said ditch became filled by the negligence of the said defendant company in allowing dirt to slough from the dump of the said railroad company, and the ditch to become clogged with trash and dirt until it was impossible for the water to drain from the pond or hole. That said water has stood in the said pond from the time that it was stopped up until the present time.

“That on October 22, 1920, plaintiffs gave notice to the agent and employees of the said defendant company that they had reached said pond in the construction of the roadbed, and that it would be necessary that the said ditch be opened and the pond drained, in order that they could complete the building of the dump over the pond, and for the further purpose of allowing them to pass over to complete the work on the other side of the creek, as there was no way by which plaintiffs could get across other than by following the old road which went through the pond and hole.

It was alleged that the railroad company failed and refused to open said ditch and allow the water to drain out of said pond, and that, by reason of the carelessness and negligence of the defendant companjr in failing to open said ditch and keep the same open, these 'plaintiffs have been damaged by having to lay their teams off from October 31, 1920, to January 1, 1921, and by having to build the road across the hole.

There was a prayer for damages in the sum of $5,000.

A motion was filed to make this complaint more definite and certain in the following particulars: First, by alleging to which employees notice was given to open the ditch; second, by alleging how many teams were laid off and on what days; third, by alleging the items making un the damage for which judgment was prayed; and by alleging whether the plaintiffs were original contractors or sub-contractors. The motion to make definite was overruled.

Whereupon the defendant railroad company filed a demurrer. This demurrer was also overruled, and at the trial which thereafter occurred there was a verdict and judgment for plaintiffs in the sum of $1,200, from which is this appeal.

We have before us a bill of exceptions signed only by the official court stenographer of the First Judicial Cir^ cuit of which White County, where the trial occurred, is a part.

In the case of Chaffin v. Lee County National Bank, 151 Ark. 106, we held that act No. 163 of the Acts of 1921 (Special Acts 1921, page 270), which applies only to the First Judicial Circuit of the State, was not intended to deprive the presiding judge of the right and duty of passing upon and approving the bill of exceptions in a casé tried before him, and that a bill of exceptions approved and certified to by the stenographer only was insufficient.

We have no bill of excetions in the instant case and cannot, .therefore, consider any assignments of error except those which appear from the face of the record.

For reversal of thej judgment it is insisted that the complaint does not state a cause of action. In response to this contention counsel for plaintiffs insist,’ first, that the complaint does state a cause of action, and that, if a cause of action is not stated, it will be presumed that a cause of action was proved and that the complaint was amended to conform to the proof.

There is no room, however, for such a presumption in this case, as the court, by overruling the demurrer to the complaint, held that a cause of action was stated in the complaint, and it is not to be assumed that the court required anything more to be- proved than was alleged in the complaint.

The case of Rowe v. Allison, 87 Ark. 206, defines the practice where a cause is appealed without a bill of exceptions bringing the testimony into the record. In that case it was said that “a conclusive presumption must prevail that the evidence sustains the decree of the court, so far as it is possible for a decree based on the complaint to be sustained by evidence. If the decree is without the issues, or the complaint does not state a cause of action, this presumption cannot aid the appellee. Jones v. Mitchell, 83 Ark. 77. Where the decree is not responsive to the issues, it is void. Rankin v. Scofield, 81 Ark. 440; Cowling v. Nelson, 76 Ark. 146.” See also Fletcher v. Simpson, 144 Ark. 436; Wiegel v. Moreno-Burkham Construction Co., 153 Ark. 564.

It becomes necessary, therefore, to determine whether a cause of action is stated in the complaint.

In testing the sufficiency of a complaint on demurrer, the rule is that, 'if the facts stated in the complaint, together with every reasonable inference therefrom, constitute a cause of action, the demurrer should be overruled. Kilgore Lbr. Co. v. Halley, 140 Ark. 448, 215 S. W. 653; Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227. Does the complaint in this case, under this test, state a cause of action?

Counsel for appellee review the authorities on the right to impound surface waters, thereby overflowing adjacent lands. But we do not think the complaint set out above presents any such issue. The allegations of the complaint are that “the railroad, in constructing its double track and repairing its embankment, dug a hole, commonly known as a borrow-pit, on the west side of said railway track, said hole being about 150 feet long, 100 feet wide, and 5 feet deep,” and that “the road, as laid out by the engineers and adopted by the commissioners of the State Highway Department, passed very nearly over the center of said hole, that it is necessary to fill up said hole and to construct abase for said road.” It is further alleged that for a time the railroad company drained this hole or pool by means of a ditch on its right-of-way, and the basis of the suit appears to be that the railroad company had ceased to keep the ditch open after notice so to do.

The railroad company had the right to remove earth from its right-of-way with which to construct its double track and to repair its embankment. Yol. 2 Elliott on Railroads (3d Ed.) page 617.

Its action in digging the ditch appears to have been voluntary so far as draining the borrow-pit or hole is concerned, and its failure to continue draining the borrow-pit affords plaintiff no cause of action.

Plaintiffs’ contract to build the highway across the borrow pit was made on or about the-day of April, 1920, at which time the borrow-pit and ditch had been dug, as the complaint alleges “that the said ditch performed the purpose for which it was intended up until sometime in the spring of 1920, when the said ditch became filled by the negligence of the said defendant company in allowing dirt to slough from the dump of said railroad company, * * *

The complaint does not, therefore, allege the breach of any duty owing to the plaintiffs by the railroad company; and the demurrer to the complaint should have been sustained, and the judgment will therefore be reversed and the cause remanded, with directions to sustain the demurrer, with leave to the plaintiffs to amend their complaint if they are so advised.


author: Humphreys, J.

text:
    Davis v. Reynolds.
    Opinion delivered May 29, 1922.
    1. Evidence — varying written contract. — The terms of a written contract are not contradicted or varied by showing the real parties in interest.
    2. Evidence — varying written contract. — Plaintiff, suing on a written contract on its face purporting to have been made by a third person, may show by parol evidence that the third person made the contract as plaintiff’s agent.
    Appeal from Randolph Circuit Court; J. B. Baker, Judge;
    reversed.

      W. L. Pope and M. D. Bowers, for appellant.
    Appellee is bound by the act of her agent in signing the contract. 147 Ark. 226; 141 Ark. 25; 117 N. E. (Ind.) 526; 15 N. E. 345; 37 N. E. 355; 31 Cyc. 1263-1274; Mecbem on Agency, chap. 5, Ratification.

      Schoonover & Jackson, for appellee.
    The demurrer was properly sustained. 87 Ark. 97; 120 Ark. 472; 38 Ark. 127; 108 Ark. -362; 91 Ark. 400.
    A contract should be construed most strongly against the person who writes it. 73 Ark. 338; 74 Ark. 41; 84 Ark. 431; 90 Ark. 88; 97 Ark. 522; 105 Ark. 518; 112 Ark. 1; 115 Ark. 166.
    A court of equity only has power to reform a contract. 23 R. C. L. 354.
    A contract must be construed according to its terms. 84 Ark. 349. A court of equity cannot add parties to or substitute other parties for those named in the contract. 34 Cyc. 934. Parol evidence is not admissible to alter or vary the terms of a written contract. 4 Michie' on Contracts, 371; 146 Ark. 127; 144 Ark. 279. Parol evidence is admissible where there is doubt as to the meaning of the instrument. 139 Ark. 507.
   Humphreys, J.

This suit was instituted by appellant against appellee in the Randolph Circuit Court to recover $8,350 on account of an alleged breach of a written contract for the sale and purchase of 1,400,000 feet of timber, to be severed from lands belonging to appellee and delivered by her on the skids at the sawmill sold by her to appellant. The contract was executed on the 17th day of March, 1921, and recited that it was between Elmer Reynolds, party of the first part, and E. W. Davis, party of the second part. It was signed by Elmer Reynolds, party of the first part, and E. W. Davis, party of the second part. The contract was made the basis of the suit, but it was alleged in the complaint that, while signed by Elmer Reynolds, it was, in fact, the contract of appellee; that appellee was the owner of the sawmill and timber which appellant purchased, and that appellee constituted Elmer Reynolds her agent to sign the contract in her stead and to carry out the terms thereof; that, pursuant to the terms of the contract, appellee placed appellant in possession of the sawmill and received a consideration therefor, and permitted Elmer Reynolds to deliver' to appellant a part of the timber in accordance with the terms of the contract.

Appellee filed a general demurrer to the complaint, which was sustained by the court, over the objection and exception of appellant. Appellant declined to plead further and elected to stand upon his complaint; whereupon the court dismissed the complaint, over the objection and exception of appellant. Appellant has prosecuted an appeal to this court from the judgment sustaining the demurrer and dismissing his complaint.

The trial court sustained the demurrer .upon the theory that it did not appear on the face of the contract that appellee was a party thereto or interested therein, and that to allow this fact to be established by oral evidence would contravene the principle that the terms of a written contract cannot be contradicted or varied by parol testimony. It is frequently the case that agents enter into contracts with third parties without disclosing their principals; but, if authorized to act, their principals are bound by their agents’ contracts. This rule would be of little avail unless the name of the undisclosed principal could be shown by oral evidence. The terms of a written contract are not contradicted or varied by showing the real parties in interest. In the case of Arkadelphia Milling Co. v. Campbell, 141 Ark. 25, this court, in passing upon a contract similar to the one in the instant case, ruled that it was proper to submit the question of whether the agent who signed his own name to the 'contract had actual authority to bind his principal to the terms thereof, although the name of the principal did not appear therein. The rule announced in that case is applicable and controlling in this. The court erred in sustaining the demurrer to the complaint, and for that reason the judgment is reversed and the cause remanded, with direction to overrule the demurrer.


text:
    Felker v. McKee.
    Opinion delivered May 29, 1922.
    Appeal and error — proceedings on remand. — A direction to the trial court, on reversing' and remanding a case, to overrulé a demurrer and proceed according to the principles of equity not inconsistent with the opinion, means that the trial court should render a decree in accordance with the record already made, and not that appellant might further develop his case.
    Appeal from Benton Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.

      Duty é Duty, for appellant.
    The chancellor misinterpreted the mandate of this court. In its order of reversal the court intended that the demurrer be overruled and to proceed to try the issue of facts. The chancellor has jurisdiction to proceed on any question not presented or settled by the decision. 16 Ark. 181; 54 Ark. 278; 72 Ark. 162; 102 Ark. 542; 82 Ark. 51; 72 Ark. 156. The case was not fully developed, due to a .misconception of the law by the trial court. 88 Ark. 318; 110 Ark. 31; 99 Ark. 500.
    The use of the words “for further proceedings” contemplated that there was to be a new trial. 122 Ark. 500; 92 Ark. 554. Where, on an appeal or writ of error, a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court. 122 Ark. 500; 79 Ark. 475.
    The opinion of this court upon facts is not binding-on the trial court, where a cause is remanded for further proceedings. 52 Ark. -473; 124 Ark. 545.

      E. H. Thomas, McGill & McGill, for appellee.
    If appellant conceived that the former decision was arrived at under a misapprehension of the evidence, his remedy was by motion for rehearing, filed with proper time. 10 Ark. 186; 56 Ark. 170; 81 Ark. 440; 85 Ark. 158; 92 Ark. 484; 99 Ark. 218; 135 Ark. 372; 137 Ark. 341; 142 Ark. 434.
    If it had been intended that a new trial was to be had upon the whole or any part of the case, specific directions to that effect would have been given. Deason é Keith v. Rock, 149 Ark. 401.
    Although the chancery court only passed on the demurrer, the case was heard upon the merits, and appellant could not appeal upon one branch and develop new evidence on a second trial. 85 Ark. 101; 93 Ark. 394; 4 C. J. 1116-17.
   Humphreys, J.

This is tlxe second appeal in this case. On former appeal the case appears under the style of Maxwell v. Felker, and may be found reported in 148 Ark., p. 393. Reference is made to that case for a statement of the issues involved on the former appeal.. The case was reversed and remanded, with directions to overrule the demurrer, and for further proceedings, to be therein had according to the principles of equity and not inconsistent with the opinion of the court. Originally the cause had been submitted to the chancery court upon the pleadings and evidence. The court did not pass upon the demurrer to the 'bill until the evidence had been concluded. At that time the demurrer to the bill was sustained, treating the bill as amended to conform to the facts, because the bill did not state sufficient facts to constitute a cause of action either in law or equity. This court, however, upon the record made, on consideration of the pleadings, exhibits and evidence, held that the instrument made the basis of the suit was a promise on the part of J. E. Felker to the Citizens Bank of Rogers to pay $15,400, with interest at eight per cent, per annum, for the redemption of $15,400 of the preferred stock of Jones Brothers & Co. which had been pledged by Felker to said-bank to secure said sum. Upon reversal and remand of the cause J. E. Felker, appellant herein, requested the trial court to permit him to offer proof on the market value of Jopes Brothers & Co. stock, and further .proof under his plea of payment. This request was refused, and the court proceeded to hear the case upon the record as originally made, over the objection and exception of appellant.

The only question presented for determination on this appeal is whether the court erred in overruling* appellant’s motion to permit him to offer further proof upon two of the issues presented by the pleadings in the cause. His case was submitted upon the merits in the original trial. Ample opportunity was given him to fully develop his case upon all issues presented by the pleadings. To construe a reversal and remand of a cause for further proceedings, which had 'been submitted originally upon the merits, to mean that appellant might further develop his cause would enable him to proceed in his case by piecemeal and try it over every time he secured a reversal ad infinitum. No suggestion wias made to this court after the reversal of the cause, by motion for rehearing or otherwise, that all the issues joined had not been fully developed. The interim between the reversal of the cause and the issuance of the mandate was the time to suggest that all or certain of the issues had not been fully developed. Had this been done, and had the court been of the opinion that appellant was entitled to further develop the case, specific directions to that effect would have been included in the mandate. The language used upon the remand of this cause was similar to the language used in the case of Deason & Keith v. Rock, 149 Ark. 401. It was said by this court in that case that “unless the direction for a new trial is specifically made upon a part or all of the issues involved, a direction for further proceedings, according to law and not inconsistent with the opinion, can mean nothing more than to render a decree in accordance with the record made. * * * * We think a direction to a trial court, upon reversal and remand of a chancery decree for further proceedings according to law and not inconsistent with the opinion, means nothing more than to render a decree in accordance with the record made.” It is true that the Deason ease did not go off on demurrer, but there is no difference in principle between that and the instant case, as in the instant case the cause was submitted to the court upon the pleadings and evidence for determination upon the merits. The dismissal of the suit on the ground, that the bill, treating it as amended to conform to the facts, did not state facts sufficient to constitute a cause of action, either in law or equity, was, in effect, a hearing find dismissal of the cause of action upon the merits, notwithstanding that at' the conclusion of the evidence the court sustained the demurrer to the bill. It was held by this court in the case of Remmel v. Collier, 93 Ark. 394, that where the whole case was submitted to the chancery court for a final hearing upon the pleadings and evidence, and the court sustained the demurrer and dismissed the cause, it was a hearing upon the merits, and it was the duty of appellant to bring up the whole record. This rule, of course, would have no application where a demurrer had been sustained to a bill and the bill dismissed without an inquiry into the merits of the cause. It only has application where the testimony is taken and the cause submitted upon the pleadings and evidence. In the instant case no directions were given to hear further testimony upon the issues involved, nor was a new trial ordered. The only direction given was to overrule the demurrer and proceed according to the principles of equity not inconsistent with the opinion. This meant that the court should retry the ease upon the record already made and render a decree in accordance therewith.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Kern v. Booneville and Sanatorium Highway District.
    Opinion delivered June 5, 1922.
    1. Highways — improvement district — contracts.—Where, after an engineer, employed to do the preliminary and constructive work in building a highway for five per cent, of the cost of construction, had done the preliminary work, it was found impracticable to construct the highway, the engineer was entitled to recover, not under the contract, which was premature, but on quantum meruit.

    2. Highways — engineer’s compensation. — Where an engineer was employed to prepare the plans and specifications for building a highway 4% miles long at a cost not to exceed $75,000, and, instead of doing so, he prepared plans for a highway to cost over. $200,000, a finding of the chancellor that he did not act in good faith in preparing the plans, and therefore was not entitled to any compensation, will be sustained.
    Appeal from Logan Chancery Court, Southern District; J. V. Bourland, Chancellor;
    affirmed.

      S. L. White, for appellant.

      Kincmnon & Kincannon and Joseph M. Hill, amicus curiae, for appellee.
   McCulloch, C. J.

The General Assembly, at the extraordinary session in February, 1920, by special statute created a road improvement district designated' as the Booneville and Sanatorium Highway District, in Logan County, for the purpose of improving the public road from Booneville to the State tuberculosis sanatorium.

The statute provided that the improvement should be constructed of ‘ ‘ asphaltic macadam, warrenite, asphaltic concrete, or of some similar durable, tried and proved materials consistent with the permanency of the improvement contemplated and the economical upkeep of the same, as the judgment of the commissioners may indicate as being for the best interest of the district. ’ ’

The commissioners of the district entered into a contract with appellant, who was a professional engineer, for the purpose of doing the engineering work, both preliminary and constructive. Appellant did the preliminary work and furnished plans for and estimates of the cost of the construction of the improvement, showing a cost of $204,968, and the further sum of $106,405 for' improving the streets in three adjoining blocks in the city of Booneville.

The- estimates of the cost far exceeded the probable benefits, though the point of assessing benefits was never reached in the progress of affairs, and it was found impracticable to construct the improvement. In fact, an action was instituted by the property owners in the ■chancery court against the commissioners, and a final decree was rendered enjoining the commissioners from constructing the improvement.

In appellant’s contract with the district it was stipulated that he was to receive five per centum of the total cost of construction as compensation for his services, payable in installments. The contract was in the usual form, such as has come before us in recent cases dealing with the subject of engineer’s fees. The contract was premature, and appellant’s compensation for the work done is to be determined upon the quantum meruit rule. Bowman Engineering Co. v. Arkansas-Missouri Highway Dist., 151 Ark. 47.

Appellant claimed compensation in the sum of $6,-222.28, which was two-fifths of five per centum of the total estimated cost of the improvements, including the improvement of streets in the city of Booneville, but during the progress of the trial he reduced this claim to $4,752.28. A hearing before the chancery court on oral and documentary evidence resulted in a finding that appellant was not entitled to any compensation for his services, and the court dismissed his complaint for want of equity.

According to the evidence, the promotion of the enterprise originated in a conference between the trustees of the State tuberculosis sanatorium and certain citizens of Booneville, and plans, were discussed for the improvement of the road in question, a distance of about four and one-half miles. It was suggested that the trustees would use an available fund of $6,000, that the county would contribute $1,000 from its funds, and a district would be formed for taxation to raise $6,000 more, and that the balance would be furnished out of the State road fund, making a total estimated cost of about $25,000. Later it was concluded that it would cost more than that — approximately $60,000 or $75,000.

The statute finally passed creating the district was prepared in the office of the State Highway Commission, and, according to the evidence, the original promoters of the road had nothing to do with its details.

There were other bidders for the engineering contract, but it was let to appellant, and he went to Boone-ville to close the contract. The evidence shows that in the conferences with the commissioners, particularly at a certain meeting mentioned by some of the witnesses, information was communicated to appellant that it was understood that the road would not cost more than sixty or seventy-five thousand dollars.

Appellant prepared plans and estimates for a cost of $204,698, in addition to the cost of improving the streets in Booneville, which was not included in this district.

Appellant directed his proof to the question of amount of compensation for preparing the plans and specifications which he furnished to the commissioners, but the first question which confronts us for determination is whether or' not the chancery court was correct in its finding that appellant was not entitled to any compensation at all. Therefore, for the present it is unnecessary to decide what compensation appellant would be entitled to if he'should be allowed anything at all.

. The contention is that appellant is not entitled to any compensation because he did not perform the services in good faith, and that his services did not produce results of any value whatever to the district.

The statute under which the commissioners and the engineer were proceeding prescribed the type of. construction to be employed in improving the road, and; according to the evidence adduced before the court, appellant was informed concerning the expense to be incurred, which implied the limit of resources of the district, and the conclusion is justified that he did not act in good faith in proceeding with the preliminary work of preparing the plans and specifications, when he must have known in advance that it.was not possible to construct the improvement within the limits outlined by the commissioners. Some of appellant’s own witnesses testified that any person with technical knowledge on the subject would have known, by casual observation, in advance, that the improvement could not be made within the limit of cost expressed by the commissioners.

Appellant’s skill as an engineer is unquestioned, and the fact that he had information of the plans and notions of the commissioners with respect to the cost of the improvement leads irresistibly to the conclusion that in continuing with the work, which he must have known would go far beyond their expectations in point of cost, he did not act in good faith, and, since his work had not been of any value to the district, there is no reason why he should be paid compensation.

There is a conflict in the testimony as to what information was imparted to appellant, but we think that the finding of the chancellor on this i§sue was not against the preponderance of the evidence. One of the commissioners, and also the attorney for the district, testified that at the preliminary conferences appellant was informed as to the maximum cost of the improvement, and the inference is justified that appellant knew before he proceeded to any substantial extent with his work that the road could not be built within the limit of cost announced by the commissioners or within the maximum resources of the district.

There is other testimony from disinterested sources that appellant in preparing the plans adopted unnecessary methods, particularly with reference to the grade of the road, which called for more expensive improvement than was necessary.

Our conclusion, upon the whole, is that the testimony does not preponderate against the finding of the chancery court that appellant did not perform his work in good faith, so as to produce results of any value to the district.

The decree is therefore affirmed.


text:
    Higginbotham v. Road Improvement District No. 3.
    Opinion delivered June 5, 1922.
    1. Pleading — mere conclusion.' — In a suit to restrain highway improvement commissioners from building a lateral highway, an allegation that plaintiff’s land will receive no benefit is too general, and amounts to no more than a mere conclusion.
    2. Highways — inequitable assessment — remedy.—Under special act of 1913, p. 864, as amended by unpublished special act of 1920, § 6, where the assessment of benefits for the construction of lateral roads is inequitable, the remedy of a property owner is by petition to the commissioners for a reassessment, and not by a proceeding to restrain the commissioners from constructing the road.
    3. Highways — authority to maintain and repair construed.— Under special act of 1913, p. 864, as amended by unpublished special act of 1920, § 2, requiring the commissioners of a certain road improvement district to maintain and repair the roads constructed under their supervision, it was not beyond their authority to regrade and widen the roads, shape up ditches, put in culverts, and drain and re-surface the roads with seven inches of gravel.
    Appeal from Lonoke Chancery Court; Jolm E. Martineau, Chancellor;
    affirmed.

      Morris & Morris, for appellant.
    1. The right of the commissioners to maintain the roads in the district is not denied. 140 Ark. 381; 143 Id. 228. But, in this instance, it is not maintenance or repair work that is in contemplation, hut reconstruction. That, we think, was not intended by the act. 7 Words and Phrases, 6100. It cannot be that the Legislature intended to empower the commissioners to expend for repairs a sum so nearly equal the initial cost of the improvement. 'See § 2 of the amendatory act.
    2. Section 3 of the amendatory act is invalid and unconstitutional in requiring the commissioners to construct five miles of new road within their district,, because the construction of this lateral road will not benefit the lands of the plaintiffs. 83 Ark. 54.

      Chas. A. Walls, for appellee.
    1. So far as pertains to the right to maintain and repair roads is concerned, 140 Ark. 381 and 143 Ark. 248, cited by appellant, and 144 Ark. 494, are controlling. The language employed by the Legislature in the act in question amounts to a legislative finding that the lands in the district are benefited to the extent of the repairs and maintenance. This finding should be conclusive. 83 Ark. 54; 112 Ark. 357; 140 Ark. 381; 144 Ark. 494; 147 Ark. 112; 83 Ark. 334; 47 Pa. St. 362; 142 Ky. 46. See 7 Words and Phrases, 6096-6101, and 4 Id. 2nd Series, 271-275 for definition of “repair” and “repairs”. It is generally held that the words “maintain and repair” are synonymous terms and mean the same thing. Ill Iowa 310; Webster’s Diet.; 155 Mo. 391.
    2. That the act is invalid in authorizing the construction of the lateral road is not supported by the previous decisions of this court. Both by the original act, act 212 Acts 1913, §§ 15, 18, and by the amendatory act, act 133, Acts 1920, § 6, the property owner is amply protected, and is afforded ample remedy to correct any injustice or inequalities in assessments or reassessments.
   McCulloch, C. J.

Appellee is a road improvement district created by the county court of Lonoke County pursuant to the terms of a special statute applicable to lhat county (Acts 1913, p. 64), and the road specified in the organization of the district was improved at a cost of $105,000, exclusive of interest on bonds.

The General Assembly, at the extraordinary session. held in February, 1920, enacted another statute amending the former statute referred to above by conferring authority upon the districts formed under the original statute to provide for the repair and maintenance of the roads constructed, and also to improve certain lateral roads running out from the main road which had been improved.

The section of the new statute containing the authority to provide for the repair and maintenance of the road reads as follows:

“Section 2. The board of commissioners of Road Improvement Districts Number One (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7), Eight (8), all of which were created under the terms and provisions of act 212 of the Acts of 1913, and the hoard of commissioners of any district which may be hereafter created in Lonoke County, under the terms and provisions of said act, or under the terms and provisions of any general act applicable to the county, are hereby required to maintain and repair the roads constructed under their supervision, subject to the approval of the county court, and, in order that said roads may be properly maintained and repaired, it shall be the duty of the board of commissioners of said districts to cause a competent engineer to make an estimate of the cost thereof from time to time, which shall be reported to the county court. If the county court finds the cost of said maintenance and repair to be reasonable and to the best interest of the district, it shall authorize the board of commissioners of said district to borrow money for the purpose of maintaining and repairing said roads, and shall enter a levy upon the property previously assessed for a sum sufficient to maintain and repair said roads, which levy shall be added to and collected with the annual tax already levied for the original improvement. All lands and other real property in said districts are hereby declared to be benefited in proportion that the cost of said maintenance and repairs bears to the present assessment of benefits now in force in said districts; provided, that nothing in this act shall be construed as prohibiting a reassessment of benefits when ordered; provided further, that if any district shall have issued interest-bearing obligations, the total amount of the assessed benefits in any district shall never be reduced.”

The section of the new statute authorizing appellee to construct a lateral is as follows:

“Section 5. The board of commissioners of Road Improvement District No. 3 of Lonoke County, Arkansas, are hereby authorized and empowered to improve, by grading, draining’ and surfacing the following described public road in said district, to-wit: Beginning at or near the northeast corner of the northeast quarter of the northeast quarter of section fifteen (15), township two (2) south, range nine (9) west, where a public road joins the macadam road already constructed in said district, and running thence in a southeasterly direction following said public road to about the southwest corner of the southeast quarter of section 23, township 2 south, range 9 west; thence continuing along said public road in a southerly direction to the northwest corner of the northeast quarter of section 35, township 2 south, range 9 west, thence east along the public road to the northeast corner of section 36, where Indian Bayou drainage ditch in Indian Bayou Drainage District Number 2 intersects said public road.
“That the commissioners of Road Improvement District Number 3 of Lonoke County, Arkansas, are hereby authorized and empowered to borrow such sums of money that may be required to construct the five miles of road above described, and when said money is so borrowed, the ■commissioners shall call upon the county court to levy a tax upon the present assessment of benefits in force in said district sufficient to pay the cost thereof, which levy shall be added to and collected with the annual tax alr eady levied for the original improvement.”

Section 6 of the new statute is as follows:

“If any owner of real property finds-that, by reason .of the construction of the road set out in sections three (3) and four (4) and five (5) of this act, that the assessment of benefits previously made has become inequitable by reason thereof, they shall file a petition with the commissioners of the district affected, asking that the benefits be reassessed, and the board of commissioners shall order a reassessment of the lands affected, or if the commissioners of said districts find that any assessment has become inequitable, they shall order assessors for said district to reassess the benefits upon the lands or other real property affected, which assessment shall be made, advertised and confirmed in accordance with the methods set out for the original assessments, and, as assessed, shall'be final and binding on the property owners, unless an appeal is taken therefrom within ten (10) days after the order is made by the county court confirming' said assessment.”

. Appellant is the owner of real property in the district, and instituted this action in the chancery court of Lonoke County to restrain the commissioners of the district from proceeding to improve the lateral road, and also from proceeding under the contract to repair the road.

There is an attack upon the validity of the statute with respect to the provision for improving the lateral road, and there is an attack upon the validity of the proceedings about to be attempted by the commissioners with respect to the repair and maintenance of the road. The court sustained the demurrer to the complaint, and we will discuss the several attacks in the order mentioned.

The lateral road to be improved runs off from the main road originally improved, several miles southeast of England, and it is alleged in the complaint, in general terms, that the lands of appellant, which are situated several miles northwest of England, will receive no benefit from the construction of the additional improvement, that is to- say, the lateral, and that the statute is void in providing for the improvement of the lateral road to be paid for by taxation upon the benefits originally assessed for the road already improved.

The allegation in regard to there being no benefits to appellant’s land is too general to amount to more than a mere conclusion. Salmon v. Board of Directors of Long Prairie Levee Dist., 100 Ark. 366; The allegation does, however, present a question as to the validity of the statute in providing for the payment of the cost of construction of the lateral road by taxation based upon benefits accruing from the original construction of the main road.

This assessment of benefits was made at a time when the addition of the lateral road was not contemplated, and there might be a difference in the accrual of benefits from the added improvement. The enactment of the statute necessarily implies a determination by the lawmakers that benefits to the lands in the district from the improvement of the lateral road will accrue to all lands in the district in the same proportion as the benefits from the original improvement of the main road accrued. It is not shown by proper allegations in the complaint that this determination of the lawmakers is obviously wrong. Mere distance from the lateral road to be improved does not necessarily determine the question of benefits. In addition to that, the rights of property owners are amply protected by the provisions for a reassessment of benefits in the whole district by reason of the construction of the lateral. Under the section of the statute providing for a reassessment there is a complete remedy to the property owners by a reassessment — not a mere readjustment or equalization of assessments, but a new assessment to meet the conditions arising by reason of the construction of the new part of the improvement. Under this section there is authority for this, either upon application of the property owners or on the initiative of the commissioners themselves. It is not merely a provision for the correction of individual assessments, but calls for a complete reassessment, upon proper application.

We are of the opinion, therefore, that the statute was valid in regard to the improvement of the 'lateral road, and that if appellant has any grievance in regard to the assessment of benefits, the remedy provided by the statute itself is adequate.

It is alleged in the complaint that the commissioners of the district have prepared' plans and specifications for “regrading, widening,-shaping-up the ditches, and putting in culverts, proper drainage, and re-surfacing the road with seven inches of gravel, or about fifteen hundred tons per mile, which, in fact, is reconstruction work”; that the proposed cost of such improvement is to he $85,-250, and that, unless restrained, they will let a contract for the improvement of the road to that extent. But the contention is that this contract sought to be made by the commissioner's is beyond the scope of the authority contained in the statute to “maintain and repair” the roads.

The question presented by this allegation in the complaint, which, for the purpose of testing the correctness of the court’s ruling, must be taken as true, is whether or not the commissioners are about to exceed their authority, which is limited to maintenance and repair of the road.

To repair means, according to the lexicographers, “to mend, add to, or make over; to restore to a sound or good state.” Standard Dictionary. “To restore to a sound or good state after decay, injury, dilapidation or partial destruction; to restore or reinstate as in former standing. ’ ’ Webster.

A fair interpretation of the meaning of the word, as used by the lawmakers in this statute, is that it means restoration to the original state of the road after the former improvement was completed. Not exact, but substantial restoration was intended. It was not intended that an entirely new improvement should be constructed in disregard of the original plans, but only restoration of the improvement according to the original plans, with mere incidental changes allowable.

The same principle is applicable as that announced by this court in the cases of Rayder v. Warrick, 133 Ark. 491; Hout v. Harvey, 135 Ark. 102, and Carson v. Road Imp. Dist., 150 Ark. 379, in dealing with the power of commissioners of improvement districts to make changes in the plans of improvements.

Applying this principle to the allegations of the complaint in the present case, we do not think that the language employed amounts to a charge of substantial departure from the original plans of the improvement. The regrading of the road may be essential for the purpose of restoration; the widening of the road does not necessarily imply a substantial change, nor does the increase in the depth of the surfacing necessarily constitute a substantial charge, when considered in the light of thó total cost of the improvement. This all may be done, and yet the improvement be confined substantially to repair or restoration wort, using that part of the old improvement which still remains. We see nothing in this charge which could be held to constitute a departure from the language of the statute. The chancery court was therefore correct in sustaining the demurrer to the complaint.

Affirmed.

Hart, J., dissents.


author: Hart, J.

text:
    Jackson v. State.
    Opinion delivered June 5, 1922.
    1. Jury — disqualification.—It was not error to refuse a new trial for disqualification of one of the petit jurors, though witnesses testified that one B. had stated that one of the jurors told him that he knew all about the case, and that they were going to convict defendant, where B. testified that one of the grand jurors had made such a statement to him.
    2. Seduction — instruction as to corroboration. — In a prosecution for seduction it was proper to instruct the jury that whether the testimony of the prosecuting witness has been corroborated by other testimony which, unconnected with that of the prosecuting witness and independent of her testimony, tends to establish the guilt of the defendant, was a question for the jury.
    3. Seduction — necessity and sufficiency of corroboration. — In a prosecution for seduction, where there is no evidence to corroborate the prosecutrix, the court should take the case from the jury; but where there is corroborating evidence, its weight is for the jury.
    4. Seduction — evidence—letters.—In a prosecution for seduction, the admission in evidence of letters containing terms of affection and endearment, written by accused to the prosecutrix two or three years before the alleged offense, and while accused was keeping company with the prosecutrix, was proper, as the letters tended to prove the love existing between the defendant and prosecutrix, which might subsequently be a basis for their engagement to marry.
    5. Seduction — sufficiency of evidence. — In a prosecution for seduction, evidence held sufficient to support a verdict of guilty.
    Appeal from Bradley Circuit Court; Turner Butler, Judge;
    affirmed.

      D. A. Bradham and Clay & Ball, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Hart, J.

Wesley Jackson prosecutes an appeal to this court to reverse a judgment against him for the crime of seduction.

It is first insisted by counsel for the defendant, that the judgment should be reversed on account of the disqualification of one of the jurors. This assignment of error is based upon the testimony of the sheriff and of an uncle of the defendant to the effect that Julius Beasley came into one of the offices in the courthouse, while the jury was deliberating upon its verdict in the present case, and stated that he had heard one of the jurors say that he knew all about the case and that they were going to send the defendant to the penitentiary.

Julius Beasley testified that he did state that he heard one of the jurors say that the defendant would be sent to the penitentiary, and started to explain his remarks, but the witness would not listen to him. Beasley testified that the qualifications of his remarks would have been that one of the. grand jurors had told him that the boy was in a close place and that they (meaning the grand jury) had held the case open to hear his side of it, and that he did not see any chance for the boy.

The court overruled the motion for a new trial on this account, thereby finding that no member of the petit jury made the statements attributed to Beasley by the witnesses and that no prejudice had resulted to the defendant 'by reason of the disqualification of any member of the petit jury. It cannot be said that the court abused its discretion and acted arbitrarily in the matter. Therefore this assignment of error is not well taken. Hamer v. State, 104 Ark. 606, and Sneed v. State, 143 Ark. 178.

It is next insisted that the court erred in instructing the jury that it was a question for it to say whether the testimony of the prosecuting witness had been corroborated by other testimony, which, unconnected with that of the prosecuting witness and independent of her testimony, tends to establish the guilt of the defendant, etc.

There was no error in giving this instruction. Of course,where there is no corroborating evidence, it is the duty of the court to take the case from the jury, because there could be no conviction unless the prosecuting witness is corroborated both as to the promise to marry and the fact of the intercourse. But where there is corroborating evidence, the weight of it is for the jury, and it is within the province of the jury to determine whether the evidence of the prosecuting witness has been sufficiently corroborated by the other evidence in the case, both as to the promise of marriage and the sexual intercourse. Brooks v. State, 126 Ark. 98.

It is next contended by counsel for the defendant that the court erred in allowing the introduction of certain letters of the defendant to the prosecuting witness.

Counsel for defendant specifically object to these letters because they were written during the first part of the year 1917, and the witness testified that the crime was committed in September, 1920.

With regard to the general objection to the introduction of the letters, it may be stated that the prosecuting witness testified that she knew the handwriting of the defendant and identified the letters as having been written by him. They were dated in January, March, and April, 1917, and one of them the prosecuting witness says was written during the first part of 1918. The prosecuting witness testified that the defendant kept company with her during the whole of the time from the first of the year 1917 to the fall of 1920, when he seduced her. The letters of the defendant to the prosecuting witness are full of endearing terms to her, and each one assures her of his great love for her. He tells her that he will love her forever, and wishes for the same kind of affection from her. Under the circumstances these letters were competent as tending to prove the - love existing between the prosecuting witness and the defendant which might subsequently be a basis for their engagement to marry.

Finally, it is insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. The prosecuting witness testified in positive terms that she was 19 years of age on the 20th day of December, 1921, and that the defendant began coming to see her during the first of the year 1917 and continued to visit her regularly until the year 1921; that she loved the defendant and became engaged to be married to him; that in September, 1920, she had sexual intercourse with him in Bradley 'County, Ark., on their way home from camp meeting; that she yielded to the defendant because he promised to marry her, and that she relied on such promise; and that, as a result of their intercourse, which occurred several times, a baby was -born unto her on the 19th of June, 1921.

The defendant was a witness for himself, and denied that he had ever been engaged to marry the prosecuting witness. His counsel insists that there is not sufficient corroborating evidence in the case.

In addition to the love letters referred to above, the testimony for the State shows that an uncle of the prosecuting witness went to a school in the neighborhood at which the defendant attended and told him that the prosecuting witness was pregnant and had said that the defendant had promised to marry her, and had requested the witness to ask the defendant what he was going’ to do about it. According to the testimony of the witness, when he broached the subject to the defendant, the latter replied that he knew the prosecuting witness was in that fix. The witness asked the defendant what he was going to do about it, and he replied that he did not have any money with which to purchase a marriage license. The witness advised him to talk the matter over with his father, but the defendant replied that his father would not let him have the money. Finally it was agreed between them that the defendant should go home and get some other clothes and come back and marry the prosecuti jLg witness. The defendant went home, but failed to return and marry the prosecuting witness as he had promised. On the other hand, he left the country and did not return for some time.

The father and mother of the prosecuting witness both testified that during 'all of this time the defendant had visited her regularly at their home.

According to the testimony of the uncle of the prosecuting witness, the above statements of the defendant were made to him voluntarily. It is true that the defendant was only twenty years of age, and testified that he acted under a sense of fear; but the court found otherwise by admitting his testimony to go before the jury. The jury, by convicting the defendant, found that his statements were voluntarily made. They were in the nature of a confession and were sufficient corroboration of the testimony of the prosecuting witness. Lind v. State, 137 Ark. 92; Oakes v. State, 135 Ark. 221; Patrick v. State, 135 Ark. 173; and Smedley v. State, 130 Ark. 149.

We find no prejudicial error in the record, and the judgment will be affirmed.


text:
    Patterson v. Miller.
    Opinion delivered June 5, 1922.
    1. Deeds — interest op grantor conveyed. — The effect of a deed which does not limit the grantor’s interest conveyed is to convey his entire interest, but he may convey a particular interest; and when this is done only that interest is conveyed, and the grantor reserves to himself all he has not conveyed.
    2. Tenancy in common — adverse possession op co-tenant. — The grantee of an undivided .one-half interest in land could not acquire title by adverse possession to any part of the land except that of which he had actual pedal possession as against his co-tenants.
    3. Tenancy in common-co-tenant in possession to pay taxes.— A tenant in common in possession of the land, who has received rents enough to keep the taxes paid, was required to pay the taxes for the benefit of himself and his co-tenants.
    4. Tenancy in common — adverse possession. — Entry on the land by a tenant in common is presumed to be in subordination to the rights of his cotenants, and his occupancy, for whatever length of time continued, is not adverse to his co-tenants until affirmative knowledge has been brought home to them that his possession is hostile and adverse.
    5. Tenancy in common — adverse possession — evidence.—Evidence held insufficient to overcome presumption that owner of undivided half interest, in occupying same, did not hold adversely to his co-tenants.
    6. Taxation — purchase of one who should have paid taxes.— Where a bank neglected its duty as agent of a taxpayer to pay the taxes on land, and permitted the land to be sold for nonpayment thereof, its purchase at the tax sale amounted merely to the payment of the taxes.
    7. Tenancy in common — adverse possession. — Where a tenant in common conveys the whole title, the grantee by adverse possession for the requisite period can acquire title by limitation, the conveyance of the whole title constituting an act of ouster.
    Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    reversed on cross-appeal, affirmed on appeal.

      Randolph $ Randolph and Hughes & Hughes, for appellants.
    1. The finding's by the chancellor lead, we think, to a decree of broader scope in favor of the' Hill title than the decree actually rendered. Hill did have color of title, and his title by adverse possession ought not to have been confined to the tracts actually occupied, and to that extent the court took an erroneous view of the deed under which he held. 50 Ark. 340, 345; 63 W. Va. 623, 129 Am. St. Eep. 1024, 1031-1032; Freeman on Co-Tenants, § 328; 27 Calif. 549 ; 55 Mich. 111.
    2. The title of appellants was good to the whole of the lands under the seven years’ statute; but if not, it was good under the two years’ statute. The tax' deeds to Beck and his deed to Mrs. Hill were admittedly void; nevertheless they were color of title under the statute of two years.
    It is true -that a co-tenant buying in an outstanding tax title while the co-tenancy exists, does not hold adversely, but takes for the benefit of all; but the case is different where the co-tenancy no longer exists because of a previous ouster, and the holding is already adverse. In the latter ease he may acquire a tax title and set it up in himself. 38 Cyc. 50-51, 7 E. C. L. 861; 21 Wis. 331; 28 Am. Dec. 86; 8 Am. and Eng. Am. oases, 990.
    3. The appellees are barred by laches from setting up the claim they now assert. The chancellor, on the authority of Taylor v. Leonard, 94 Ark. 122, declined to apply this doctrine to the whole claim, though applying it to the claim for rents and profits. It should have been applied to exclude appellees from all relief. They do not set up a legal title, but, if any, an equitable title only. Moreover, their claim is not divisible.
    4. If the deed made in 1889 by Apperson to Hill is properly construed as conveying to Hill an undivided half interest in the land described, the court is justified in presuming from the long continued possession and use of the land by Hill, his representatives and tenants, that he acquired in a lawful manner the entire title to the tract. 92 Term. 753-754; 120 U. S. 534; 175 U. S. 520; 138 Fed. 772; 135 Ark. 232; 2 Corpus Juris, 288-291.

      B. J. S.emmes and Berry & Wheeler, for appellees.
    1. There is no evidence, either direct or circumstantial, of an ouster.
    It is not disputed that one who holds open, notorious and hostile adverse possession of land for the requisite time without title is entitled to the land so held, but to enlarge the limits thereof beyond that in actual occupancy, there must be color of title. 80 Ark. 82. As to co-tenants, the rule is that if the deed conveys only 'an 'undivided interest, it is color of title only as to the interest conveyed. 2 C. J. 185; 7 R. C. L. 856; 77 N. E. 142; 102 Ark. 611, 145 S. W. 537.
    2. The theory that, even though the tax deed to Beck was void, it still constituted color of title, and that therefore appellants are entitled to relief, is not tenable. 55 Ark. 104; 128 Id. 605; 133 Id. 441; 7 R. C. L. 824; 94 Ark. 122.
    On the cross-appeal:
    1. The burden of establishing the ouster was upon Patterson and McGehee. The making of leases, sale of timber, payment of taxes and collection of rents introduced by them as evidence, are all presumed to be under the true title, and not hostile. The ouster must be clearly proven.
    2. No title to the tract of land vested in Bates et al. by virtue of the deed of W. W. Miller and wife, Minetry Myers Miller. The deed explains itself simply as intending to determine the estate in reversion caused by a condition broken in a deed from S. U. Apperson. Years before Apperson had died, and there was no title to revert to Mrs. Miller. 2 O. J. 290; 30 N. E. 96.
   Smith, J.

This suit originated as a bill in equity to quiet title to the north half and the fractional southwest quarter section 31, township 8 north, range 6 east, Crittenden County, Arkansas. The plaintiffs are Geo.' W. Patterson and H. A. McGhee, who purchased the lands from Mrs. Olivia Hill Grosvenor, who had, in turn, acquired them from her mother, Mary M. Hill, the widow of Napoleon Hill. The defendants, among others, included the heir of D. E. Myers, deceased, viz., his daughter, Mine-try Myers Miller, and the heirs of ¥m. M. Sneed, deceased, viz., Mary B. Neely, Louise Sneed Hill, Bichard Sneed, and Hampton Fenton Sneed. The complaint deraigned title and prayed that title to the lands' be quieted in the plaintiffs. 1

The defendant, Minetry Myers Miller, filed an answer and cross-complaint, in which she sought, as the sole heir of D. E. Myers, deceased, to assert an undivided one-fourth interest in said lands. She prayed that her interest be established and that partition of the land be made in kind.

Minetry Miller, a daughter of Minetry Myers Miller, filed an intervention and cross-complaint, in which she averred that under the will of D. E. Myers she was entitled to a remainder interest in the land sought to .be' recovered by her mother, and she adopted the answer and cross-complaint of her mother. As an additional cross-complaint she averred that Mary N. Hill and Olivia Hill Grosvenor had collected rents and profits for which they should account. The heirs of Sneed averred their ownership of an undivided one-fourth interest in the lands, and adopted the answer and cross-complaint of Minetry Myers Miller. They also prayed judgment for rents and profits. All other defendants defaulted.

Mary M. Hill and Olivia Hill Grosvenor filed an answer to the several cross-complaints in which defenses are set up which will later be discussed, The plaintiffs Patterson and McGhee adopted as their answer to the several cross-complaints the answer thereto of Mrs Hill and Mrs. Grosvenor.

The cause was heard by the chancellor on the very .voluminous record now before us, and a recovery of a certain part of the lands was awarded Mrs. Miller and her daughter, and the Sneed heirs were also awarded a recovery of a certain interest in the lands; but the court denied any recovery against Mrs. Hill and Mrs. Grosvenor for rents and profits. The plaintiffs’ title was quieted against the other defendants as. to all parts of the lands not recovered under the cross-complaints.

Under the finding thus made the parties stipulated as to the taxes and improvements, the claim for rents being disallowed; but this stipulation does not suffice for us to render a final decree here, because we do not concur in certain of the chancellor’s findings, as will later appear, and the parties may, if they are so advised, take further testimony on the question of rents and profits and betterments. Prom the findings and decree of the chancellor all parties whose interests in the litigation have been set out have appealed.

The chancellor prepared an opinion in which he recited a number', of facts. Such of these as are essential to a statement of the case are as follows:

On April 18, 1870, E. N. Apperson acquired as trustee the title to about 40,000 acres of swamp land lying in Crittenden and other counties in Arkansas, the land in litigation being the first tract described in his deed. The equitable title to the lands at that time was held as follows: E. N. Apperson, 3/8; Gr. Y. Eambaut, 1/8; Napoleon Hill, 2/8; W. H. ’Wood, 2/8. Eambaut sold Ms 1/8 interest to Apperson. • The deed under which Apperson held as trustee gave him power to convey the fee title, the beneficiaries being interested only in the proceeds of the sales of the lands. These titles became incumbered with tax sales, and Apperson employed D. E. Myers and W. N. Sneed, law partners as Myers & Sneed, to discharge these liens and to straighten up the titles to the lands. This contract was evidenced by a deed dated July 18, 1887, which recited that it was to take effect as of October 28, 1882.- This deed conveyed to Myers & Sneed an undivided half interest in all the lands there described as compensation for services performed and to be performed. This deed was not filed for record until June 13, 1890.

■ On January 28, 1888, Apperson, as trustee, executed to Napoleon Hill a deed conveying an undivided half interest in certain of these lands, including all of section 31, township 8 north, range 6 east. We quote from this deed, as we think it has a very important hearing on the litigation. The grantor recites that, for the consideration of $1,401.75, he has “this day sold and do by these presents alien and convey unto Napoleon Hill aforesaid, an undivided one-half interest in the following real estate.” Following a description of the lands, it is recited that “all of said lands herein conveyed being an undivided one-half of all the same. * * * But I, the said E. M. Apperson, do hereby convey not only such claim as I own or have in said undivided half of said lands in my own right, but likewise any and all claim or title vested in me as trustee. It being my intention to make to said Hill, and his heirs and assigns, a clear deed to one-half of said real estate as trustee and otherwise.* * *” It will be borne in mind that at the time of the execution of this deed the trustee owned only an undivided one-half, as he had previously conveyed an undivided one-half to Myers & Sneed. The deed to Hill was filed for record June 16, 1888.

W. M. Sneed died testate in 1895, and devised the bulk of his estate to his executrix as trustee, and through a bill filed by D. E. Myers, as attorney for the executrix, in the chancery court of Shelby County, Tennessee, the estate was administered in insolvency; and it is insisted that neither in the will nor in the insolvency proceeding was any reference made to the deceased’s claim of an interest in the lands here in litigation.

In 1899 D. E. Myers, as his own attorney, brought suit against all persons for whom Apperson (who was then dead) had been trustee. This suit did not include the land in section 31-8-6, for the reason, no doubt, that the trustee had previously divested himself of the title by his deed to Myers & Sneed and the deed to Napoleon Hill. The lands involved in the suit by Myers were sold, and the bulk of them was purchased by Noland Fontaine as trustee for those interested in a syndicate, the decree reciting the beneficiaries and their interests. Fontaine was the business associate of Hill, and Myers represented Hill as attorney in many matters, particularly in the management of the Arkansas lands, and the testimony shows that a close and intimate friendship existed between Hill and Myers. It is also shown that Myers frequently borrowed money from Hill, and on one occasion at least had given Hill a deed of trust on his Tennessee property, to secure such advances, but the deed of trust was not placed of record. Fontaine, as trustee, managed the lands vested in him as trustee under the supervision of Myers until 1910, when the trust was finally settled.

Myers.died testate in 1910, and by his will vested his estate in the Union & Planters Bank & Trust Company of Memphis, as trustee, to manage the estate and to pay the income thereof to his daughter, Mrs. Miller, for her life, with remainder to her children. The trustee accepted the trust, and was engaged in managing the estate at the time this litigation was begun. A son of Napoleon Hill has for some years been president of the Union & Planters’ Bank & Trust Company.

It is insisted that Mrs. Miller recognized that she had no interest in the land here involved, because she had, in 1911, executed a deed to the. defendants, Bates, Stratton and Buchanan, conveying an undivided two-thirds of an undivided one-fourth part in a large quantity of land formerly belonging to the syndicate, including the land in suit, which she pretended to own through another chain of title said to be antagonistic to the chain of title set up in her cross-complaint. The lands had been conveyed by E. N. Apperson prior to the execution of a declaration of trust by Apperson in 1870 to the St. Louis & Memphis Railroad Company by a deed containing the condition subsequent that the grantee build a railroad, and that condition had never been performed.

The deed to Bates et al. has this caption: “Quitclaim Deed to Lands conveyed by E. N. Apperson and Susan B. Apperson to the St. Louis & Memphis Railroad Company by conditional deed, said company having forfeited said lands. Ee-entry is hereby made, determining said estate in reversion.” Following this caption the deed has the following recitals: “Know all men by these presents: That we, W. W. Miller and wife, Minetry M. Miller, née Minetry Myers, sole surviving heir-at-law of Emma Myers, deceased, née Emma Apperson, wife of D. E. Myers, deceased, and daughter of E. N. Apperson and Susan B. Apperson, and one of the four heirs-at-law of the said E. N. Apperson and Susan B. Apperson, deceased, late of the County of Shelby and State of Tennessee, reserving to ourselves one-third net of an undivided one-fourth part of the hereinafter described lands. * * * ”

The purpose of this deed was to make re-entrv determining the estate in reversion created by the deed from Apperson to the railroad.

There is a presumption, of course, that a grantor intends to convey his entire interest by his deed, and such is the effect of a deed which does not limit the interest conveyed. But a grantor may convey a particular interest, and when this is done only that interest is conveyed, and the grantor reserves to himself all he has not conveyed. Cocks v. Simmons, 55 Ark. 111.

The deed to Bates et al. is, by its express terms, a quitclaim deed. It contains no covenants of warranty. It describes all the lands contained in the deed from Apperson to the railroad and, for the purposes of making reentry, conveys the undivided one-fourth interest of Mine-try Myers Miller as the granddaughter of Apperson. The other three heirs of Apperson made similar conveyances. After defining the purpose of the deed and the extent of the interest of Mrs. Miller as an heir of Apperson, she proceeds to convey this interest, “reserving to ourselves one-third net of an undivided one-fourth part of the hereinafter described lands.” In other words, this is a quitclaim deed to the interest of Mrs. Miller in the estate of her1 grandfather, less a third of that quarter which she reserved to herself; but, as has been shown, Apperson owned no interest in the land in suit at the time of his death.

It is contended, and the chancellor fonnd the facts to be that, after Fill obtained his deed from Apperson, he proceeded to have the land pnt in cultivation under leases signed by him as owner; that he paid the taxes in his own name, and collected the rents for his own benefit, for a period of thirty years; and that he sold the timber thereon for his own account. The chancellor found that this possession g’ave Hill title to the land which he had actually occupied, but that, as his deed conveyed only an undivided one-half interest, his possession could not be enlarged to the extent of the boundaries of the lands described in the deed so as to include the undivided half interest of his cotenants which was not embraced in his deed; in other words, that Hill had no title or color of title to the half interest of his cotenants, and he could not, therefore, acquire title to any part of the land except that of which he had actual pedal possession.

In addition to the facts stated, Mrs. Grrosvenor claims title to the land as follows: After the death of Napoleon Hill, the Union & Planters’ Bank & Trust Company, as the agent for his estate, permitted the land to sell in 1912 for the taxes of 1911, at which sale J. O. E. Beck became the purchaser. Beck obtained a tax deed from the clerk, and on May 17, 1915, executed to Mrs. Hill a quitclaim deed. As this suit was not filed until December 24, 1919, it is said that the four years’ possession under' this tax deed has ripened into title.

It is pointed out that the deed from Apperson to Hill was recorded before the deed from Apperson to Myers and Sneed was recorded, and it is insisted that, as the deed was intended to convey the whole title, it should be given that effect because it was first placed of record. We think, however, there is no conflict in the deeds. The deed to Hill, by express language, purports to convey only an undivided one-half interest, and it is not contended — indeed, under the recox-d before us it could not well be contended- — that Hill was unaware of the deed to Myers & Sneed made prior to his deed and pursuant to a contract by which the trustee was to convey to Myers & Sneed an undivided half interest in all the lands in consideration of services rendered and to be rendered by Myers & Sneed. We regard it as a fact beyond dispute that Hill knew of the prior deed to Myers & Sneed at the time the deed was executed to him.

It is undisputed that Hill and those claiming under him have paid all taxes, and that receipts therefor were taken in Hill’s name.

One Throgmarten testified that in 1889 he cleared about ten acres of this land, although he had no deed or other claim to it, and that about the time he finished his clearing one G. W. Scott made some claim to the land. Throgmarten knew Scott had no title to the land, but to avoid trouble he surrendered its possession. However, he shortly after this reported to John R. Chase, at Marion, who was an abstracter of land titles, and also Hill’s agent, what had occurred between himself and Scott. Soon thereafter Chase prepared a lease to Scott in which Hill was designated as owner, but in a letter to Hill from Chase on this subject Hill is advised by Chase that he owned an undivided three-fourths interest in the land.

It does not appear to be a fact that no Arkansas lands were included in the Sneed administration. In a general creditor’s bill filed by the executrix there was listed in the assets of the estate “an undivided five-sixths interest with D. E. Myers and Napoleon Hill, in several thousand acres of wild and timbered land in Arkansas; also a one-half undivided interest with D. E. Meyers in several thousand acres of like lands in Arkansas, value unknown. ’ ’

The will of I). E. Myers is in the record, and no land is mentioned in his will specifically. He disposed of his estate in general terms.

So far-as the deed from Mrs. Miller to Bates et al. is concerned, it may be said, that the decree was entered against those defendants for want of an answer, and we may treat any interest there conveyed as canceled; but the execution of that deed and its cancellation by the decree herein has no effect on the title here sought to be asserted, for the reason, as shown above, that it undertook to convey an interest acquired through her grandfather, E. N. Apperson. The interest which Mrs. Miller here seeks to assert is through D. E. Myers, her father, and not Apperson, her grandfather, and she did not purport to convey the interest she now seeks to assert.

While cross-appellants concede that Hill paid the taxes in his individual name, there appears to be no evidence that Hill had them assessed in his individual name; and, while the findings of the chancellor recite the fact to be that the lands were assessed in Hill’s name individually, we find no testimony upon which that finding could be based. It is not admitted by cross-appellants that no contribution was made by Myers and Sneed for the taxes paid by Hill. It is their insistence that the conduct of the parties in regard to other tracts of land indicate they must have contributed. This may or may not be true, and-this question may be more fully developed on the remand of the cause if the parties are so advised. It is insisted, however, that, if no contributions were made by Myers and Sneed, Hill received enough rents to keep the taxes paid; and this appears to be true; and, if true, it was Hill’s duty to keep the taxes down for the benefit of himself and his cotenants.

The designation of Hill as the owner of the land in the leases prepared by Chase is not shown to have been known to Hill’s cotenants; but it is shown to have been an untrue designation, according to the letter from Chase, the man who employed that term in the leases he prepared, as he advised Hill that he was the owner of an undivided three-fourths interest.

It is admitted that Hill sold some timber on this land; but the claim is made by appellees that Hill used the proceed^ of such sales in the payment of taxes; but it is not affirmatively shown in the testimony that he made any such use of the proceeds of the timber sold by him. It is admitted that the land was known as the “Hill land”, bnt it is said it was so called from the fact that Hill was interested in and had charge of its management.

It may here be said that if Myers 'and Sneed and Hill had owned as cotenants only the land here sued for, the chancellor’s finding that Hill had held adversely to his cotenant could not be set aside as contrary to the preponderance of the evidence. But this was not the only land owned by them, and the conduct of the parties with reference to the other trusts must be considered as explanatory of Hill’s possession of the land in litigation.

The deposition of M. T. Roush was taken, from which. it appears that he was stenographer and clerk for Hill, and that he prepared under Hill’s direction a list of Hill’s Crittenden County lands. Of the twenty-eight tracts of land in Crittenden County conveyed to Napoleon Hill by E. M. Apperson, eleven are shown on page twelve of Roush’s land-book as being lands claimed by Hill at the time the book was made.

It will be remembered that these eleven tracts, including the land in suit, were all. in a deed from Apperson to Hill; and it is stipulated that Hill had no other deed to any of these lands except the deed from Apperson. He had the same interest, therefore, in all these lands, and the disposition of the other tracts is significant in determining the interest claimed by him in the land in suit. It is admitted that the first of these tracts was never sold by Hill, and that the title was lost by the adverse possession of a third party.

A notation at the bottom of the page containing this list of lands shows that the second and third tracts were deeded to J. T. Barton on January 2,1900, and the testimony of Barton is peculiarly significant. An objection to the title was made, and Barton went to Meyers, who ‘ ‘ claimed an interest in the land, ’ ’ as testified by Barton. The deed to Barton shows a consideration of $800 paid on January 2, 1900. There is in the record a deed dated March 15, 1906, from Myers, individually and as surviving partner of Myers & Sneed, and the executrix of Sneed, to Napoleon Hill, conveying an undivided one-half interest in these second and third tracts on Hill’s land-book, for the consideration of $548.87, cash in hand paid by Napoleon Hill. Attention is called to the fact that six years, two months and thirteen days elapsed between the date of the deed from Hill and the one to him, and that six per cent, interest on $400, or one-half of the consideration paid by Barton, for the time Hill had the whole consideration in his possession, amounts to exactly $548.87, the consideration recited in the deed to Hill.

As to all the other tracts of land in the land-book, it is shown that all the land was sold except the land in litigation. These sales were made to witnesses Shaver, McBee and Morrison. These witnesses testified 'that in negotiating the purchases of these tracts of land they went to Myers and made their 'contracts with him. These contracts were made in the. lifetime of both Hill and Myers, and deeds were signed by both of them and by the Sneed heirs, and the proceeds divided in proportion to the record title. The last of these sales was made in 1909, just four months before Hill died, and the consideration therefor was divided between the owners in proportion to their record title in June, 1910.

It thus appears that Hill had the same title to all eleven tracts of land, and that all the land was sold in Hill’s lifetime and in the lifetime of Myers, or lost by adverse possession, except the land in suit, and the proceeds divided in accordance with the paper title.

Hill died November 2,1909, and Myers a few months later. They had many transactions together, and were close personal friends, according to the undisputed evidence; and upon the death of Myers his estate was administered, and is now being administered, by the same agency which has charge of the Hill estate.

As has been said, we do not think the title of Hill to the land in litigation can be correctly determined without taking into account the conduct of the parties in regard to all the lands described in Hill’s Arkansas land-book. It is not claimed that he had any title except that derived from Apperson, and he had the same interest in all the lands, and as the lands were sold the proceeds of the sales were divided.

It is said that, in view of Hill’s long continued possession of the land in suit, the presumption should be indulged that Myers and Sneed conveyed their undivided half interest to Hill, and that for some reason the deed was lost or destroyed. We do not think so, 'because the conduct of the parties in regard to the other lands rebuts the presumption of a grant to Hill. Besides, Hill, as a tenant in common, had the right to enter and take possession of the land. The presumption is, of course, that Hill’s entry was in subordination to the rights of his cotenants, and his occupancy of the land, for whatever length of time continued, was not adverse.to his cotenants until the affirmative knowledge had been brought home to them that Hill’s possession was hostile and adverse.

It is said that Hill’s possession was adverse, and that, being adverse, the possession extended to the boundaries of the deed under which he had entered, and gave him constructive possession of and title to the entire tract; but we do not consider this question, as we have reached the conclusion that Hill’s actual possession was not adverse.

In the recent case of Jackson v. Cole, 146 Ark. 565, we said: “It is the law, as was stated in the case of Wilson v. Storthz, 117 Ark. 418, that one entering upon the possession o'f land, under a deed of conveyance to him, is presumed to occupy, and intends to claim, only the interest named in his conveyance.” In the case just cited we quoted with approval from 7 R. C. L. pp. 854, 855 (Title, “Cotenancy”), the following statement of the law; “In ■considering this question the familiar principle is recalled that, when one enters upon land, he is presumed to enter under the title which his deed purports upon its face to convey, both as respects the extent of the land and the nature of his interest.”

In that case the entry was made under a deed purporting to convey the whole title, and, indulging the presumption just stated, we held the possession was adverse. We did so upon the theory that the occupant •claimed the interest conveyed to him.

In 2 C. J., p. 185, at section 355 of the article on “Adverse Possession,” it is said: “Where real estate is held in common, and one tenant assumes to convey the entire estate and does convey it by metes and bounds, the deed will give color of title as to the whole tract, and an entry by the purchaser thereunder claiming title to the whole will operate as an actual ouster and disseizin of the co-tenant. If, however, the deed conveys only an undivided interest it is color of title only as to the interest conveyed. ’ ’

This accords with our holding in the case of Jackson v. Cole, supra.

The presumption is that Hill claimed only the interest conveyed to him, and that was an undivided half interest. This deed made him tenant in common with Myers and Sneed, and gave him the right to enter upon the land, and, having done so, the further presumption arose that his occupancy was not adverse to his cotenants. Wilson v. Storthz, supra; Parsons v. Sharpe, 102 Ark. 611; Singer v. Naron, 99 Ark. 446; Bayles v. Daugherty, 77 Ark. 201; Goodwin v. Garibaldi, 83 Ark. 74; McKneely v. Terry, 61 Ark. 527.

When the conduct of the parties is considered, not with reference alone to the land sued for, but that of all the land in which Hill had an undivided interest, we do not think these presumptions have been overcome.

As to the possession under the tax title acquired by purchase from Beck, but little need be said. The sale was void. Moreover, it was the duty of the Union & Planters ’ Bank & Trust Company, as agent for Mrs. Hill,- to pay the taxes, and the omission to do so was an inadvertent one. This hank was also the trustee for the Myers estate. This purchase by the bank for Mrs. Hill amounted to no more than a payment of the taxes, and Mrs- Hill is entitled to a credit only for the sum required to effect a redemption by purchasing the land from Beck. Inman v. Quirey, 128 Ark. 605.

Under the case of Jackson v. Cole, supra, the deed from Mrs. Hill to Mrs. G-rosvenor, conveying the whole title, was an act of ouster, and possession under that conveyance would have ripened into title had it been continued for the requisite period; but this deed was not made until September 6, 1918, and the cross-complaints herein were filed in January and February, 1920.

As has been stated, the court below found that there had been an ouster by Hill of his cotenants as to the lands which he had actually occupied for a period of more than seven years before the filing of the cross-complaints herein ; but, as we do not think the testimony shows an ouster by Hill of his cotenants, even as to the lands actually occupied, that decree will be reversed. It is therefore ordered that the cause be remanded, with directions to the court below to enter a decree awarding to the heirs of D. E. Myers an undivided fourth interest and to the heirs of Wm. M. Sneed an undivided fourth interest, after stating the account between the parties as to rents, taxes and improvements.