author: Wood, J.

text:
    Price v. Street Improvement District No. 335.
    Opinion delivered November 9, 1925.
    Municipal corporations — improvement district — annexation op territory. — Under Crawford & Moses’ Dig., § 5733, a city council may annex contiguous territory to an improvement district already organized, if the improvement in the annexed territory is of the same general character, though the method of construction and material to be used may be different; but where the original improvement was to drain, curb and pave certain streets, the council could not under such statute provide for “grading, draining and curbing” certain additional and contiguous streets in annexed territory by one ordinance, and for “paving” such streets by another ordinance.
    Appeal from Pulaski Chancery Court; John E. Martineau, 'Chancellor;
    reversed.

      Abner MeGehee, for appellant.

      S. L. White, for appellee.
   Wood, J.

On November 20,1922, Improvement District No. 335 was created by ordinance of the city council of the city of Little Rock, Arkansas, for the purpose of “draining, curbing and paving with an asphaltic pavement, and in such manner as the commissioners of said district should determine to be for the best interest of the distinct, certain specified and designated streets ill said district. * On the 3'lst of August, 1925; Annexes No. 2 and No. 3 to Improvement District No. 335 were established. Annex No. 2 was for the purpose of grading, draining and curbing, in a manner that the commissioners of said Improvement District No. 335 shall deem to he for the best interest of the territory annexed,” designating certain streets. Annex No. 3 was established for the purpose of “paving” with concrete in the -manner that the commissioners of said district shall deem for the best interests of the territory annexed to said Street Improvement District No. 335, certain designated streets being the same streets as those to be improved in the manner specified in Annex No. 2 to said district.

The commissioners of District No. 335 were proceeding to make the improvement specified in the Annexes Nos. 2 and 3. This action was instituted by appellant, a taxpayer and owner of real property in the district, against the commissioners of the district to perpetually restrain them from making the improvement. He alleged that the ordinance establishing Annexes 2 and 3 to District No. 335 were void under the above facts, which he set out in his complaint. The commissioners answered admitting the facts to be as alleged in the complaint, and made the answer a general demurrer to the complaint. The court sustained the demurrer to the complaint, and entered a decree dismissing the same. The appellant stood on. his complaint, and duly prosecutes this appeal..

The ordinance creating the annexes Nos. 2 and 3 to District No. 335 were passed under § 5733 of Crawford & Moses’ Digest, which provides for the annexation of contiguous territory to any improvement district in city or town, -upon petition of a majority in value of the owners of real property in such territory, describing the territory tobe annexed and the character-of the improvement desired after notice is given as therein prescribed. When the contiguous territory is thus annexed to the original improvement district, the commissioners of that district shall make the improvement contemplated by the annexation ordinance on the same basis as if the territory were included in the original district. The concluding part of § 5733, supra, is as follows: “If petitioned for, the improvement in the territory annexed may be of different material or of a different method of construction from that in the original district.”

In the case of Miller v. Seymour, 156 Ark. 273, we said: “The annexation of territory is tantamount to the creation of a new district without the imposition of new burdens on the original district, or the assumption of any burdens on the annexed territory for the cost of the original improvement, and property affected by both improvements may be embraced legally in both creations.” Under our law “more than one and different improvements can be united and treated as one and .undertaken by the creation of an improvement district for that purpose, but, on the other hand, where there is really but one improvement it cannot be divided into separate parts and improvement districts created for the completion of the work of these separate parts.” Bottrell v. Hollipeter, 135 Ark. 315, and cases there cited.

In Johnson v. Hamlen, 148 Ark. 634, two improvement districts were created in the city of Little Book, one for the purpose of grading, draining, curbing and guttering certain streets, and the other for the purpose of paving the same streets. An attack was made upon the districts, it being alleged, among other things, that the organization of the two districts for the one improvement was in violation of the law. The commissioners of the districts denied that the improvements contemplated were in their nature essentially a single improvement, and alleged that the improvements contemplated by the two districts were separate improvements, each of which could be done without the other. The demurrer to the answer, was overruled, the court quoting at length from the case of Bottrell v. Hollipeter supra, a part of which quotation is as follows: “The petition of the property owners for, and the ordinance pursuant thereto creating, the two districts are at least prima facie evidence that the petitioners and the town council considered that the improvements provided for did not constitute a ‘single’ improvement, as designated in the statute. The facts stated in tlie answer and admitted by the demurrer of appellant to be true- sli-ow that they were not essentially one improvement.” The court affirmed the judgment, of the trial -court, overruling the demurrer to the answer, holding that the answer was sufficient to show that the districts -contemplated two separate improvements.

In Brown v. Board of Commissioners, 165 Ark. 585, we liel-d that “while the power to pave may include the co-st of curbing and guttering, yet they are not convertible terms, and do not necessarily include each other so as to constitute a single improvement.” See also Meyer v. Board of Com. etc., 148 Ark. 623.

In Poe v. Imp. Dist., 159 Ark. 569, we held that when a -territory is -once annexed it i-s governed by identically the same laws as apply to the -creation of the original district.

Counsel for ap-pellees rely up-on the -above cases to sustain the contention that the ordinance creating Annexes Nos. 2 and 3 were valid, but in none of the above cases was the question now before the court presented. In th-e case of Bottrell v. Hollipeter, supra, and Johnson v. Hamlen, supra, we sustained ordinances creating two improvement districts for the purpose- of improving the same -street because, under the allegations of the pleadings, two -separate- and distinct improvements were contemplated and undertaken, although covering precisely the same territory. But the-se case-s have no- application to the annexation of contiguous territory under authority of § 5733, C. & M., supra. Under that statute annexation -o-f contiguous territory to -improvement districts already organized may be made where the improvement contemplated, of the annexed territory, i-s of the same general character as that in -the original improvement district to which the territory is annexed. The improvement contemplated in the contiguous territory annexed do-es not have to- be precisely the- same- improvement as. that of the -original district, ’ as is shown by the concluding paragraph of the above statute which expressly provides that the “improvement in the territory annexed may be of .different material or of different method of construction from that in the original district.” The above language clearly implies that the general character of the improvement must be the same; that is to say, if the original district was organized, as this was, for the purpose of “grading, draining, curbing, and paving,” then the improvement in the contiguous territory proposed to be annexed must also be for the purpose of “grading, draining, cubbing and paving;” though the method of construction and the material used may be different from that of the original district. Now, the two ordinances, taken together, creating the annexes under review provided for precisely the same character of improvement as contemplated in the original district, to-wit:£ 1 grading, draining, curbing and paving. ’ ’ But, instead of providing for this improvement in the annexed territory as a single annexation and by a single ordinance, the council provided for the annexation in two separate ordinances as if two different and separate improvements were contemplated. Under the annexation statute above if the original improvement of grading, draining, curbing and paving is declared and undertaken as a single improvement, then the same character of improvement in the contiguous territory annexed must be undertaken as a single improvement and not as separate and distinct improvements.

Under the authority of Bottrell v. Hollipeter, and Johnson v. Hamlen, supra, the city council might have declared the work contemplated by the original Improvement District No. 335 as two separate and distinct improvements and undertaken the same as such by the creation of separate improvement districts, but it did not elect to do so. On the contrary, it established an improvement district to make the improvement therein designated as a single improvement. Precisely the same general character of work was undertaken by the ordinances establishing the annexation of contiguous territory as was undertaken bv the ordinance establishing the original district. But this could not be done by separate ordinances creating’ two improvements instead of one; it should have been done by an ordinance creating a single annexation for the purpose of making a single improvement, such as was undertaken in the creation of the original district.

It follows that the ordinances establishing the annexations Nos. 2 and 3 to the original improvement district are void, and the court erred in not so holding, and erred in sustaining the demurrer to appellant’s complaint. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Vassar v. Mitchell.
    Opinion delivered November 9, 1925.
    1. Easements — right-of-way.—If one sells to .another a tract of land surrounded by other land of the grantor, a right-of-way across such land ds necessary to the enjoyment of the land granted, and is implied from the grant made.
    2. Easements — implied grant of right-of-way — rebuttal.—The inference of an implied grant of a right-of-way across land of a vendor as a way of necessity may be rebutted by parol proof showing the contrary.
    3. Appeal and error — conclusiveness of chancellor’s findings. —On appeal chancery cases are tried de novo, and findings of fact by the chancellor are allowed to stand unless they are clearly against the preponderance of the evidence.
    4. Easements — right-of-way—evidence.—In an action to establish a right-of-way across land originally owned by plaintiff’s grantor, evidence held to sustain a finding of the chancellor that the right-of-way was not granted.
    Appeal from Washington'Chancery Court; Sam Williams, Chancellor;
    affirmed.

      John Mayes, for appellant.

      C. B. A thin son, for appellee.
   Hart, J.

A. Z. Vassar prosecutes this appeal to reverse a decree dismissing his complaint for want of equity iu a case in the chancery court wherein he sought to compel J. 0. Mitchell by a mandatory injunction to remove a fence along* the side of his property over which the plaintiff claimed that he had acquired an easement for a private driveway.

The undisputed evidence shows that N. H. White formerly owned both lots or parcels of ground which are situated in Fayetteville, Ark. On the 8th day of July, 1921, N. H. White conveyed by deed to A. Z. Yassar a strip of land 100 feet long north and south, and 79 feet wide east and west off of the west side of a parcel of ground owned by him in said city. The eastern part of the whole parcel of ground so owned by White contained two dwelling houses. These two dwelling- houses fronted on a public street, and there was a private driveway extending on the line between the two lots from the street to the rear end of the property which White conveyed to Yassar. This private driveway was the only means of access to the parcel of ground sold to Yassar except over the right-of-way of the St. Louis & San Francisco Railway Co. The roadbed of the railroad in front of the Yassar lot was raised 4 or 5 feet above the level of the ground adjacent to it. Subsequently White conveyed one of the lots along which the private driveway extended to J. 0. Mitchell, and the other one to J. I. Graves. The only -means of access to the parcel of ground sold to. Yassar, except over the righffof-way of the- railway company, was along the private driveway between the lot sold to Mitchell and the one sold to Graves.

If one sells to another a tract of land surrounded by other land of the grantor, a right-of-way across such other land is a necessity to the enjoyment of the land granted, and is implied from the grant made. Belser v. Moore, 73 Ark. 296. The principle from which the doctrine of implied grants of easements over other lands of the grantor springs is said to be found in the maxim that “one shall not derogate from his g*rant”, and the Idndred one, that the purchaser takes the land bought, and whatever right in the hands of the grantor as is necessary to its enjoyment. Bonelli Bros. v. Blakemore, 66 Miss. 136.

In the case before ns, while there is evidence from which it 'might be inferred that Vassar was entitled to the outlet in question as a way of necessity, it was not conveyed to him by the deed he received from White, and the inference shown'by the parol proof from which the implied grant is inferred may be rebutted by parol proof showing to the contrary. Golden v. Rupard (Ky. Ct. of Appeals) 80 S. W. 162; Lebus v. Boston (Ky. Ct. of Apeals) 51 S. W. 609, 47 L. R. A. 79, 92 Am. St. Repts. 333; and Ewert v. Burtis, (N. J. Eq.) 121 Atl. 893.

There is a direct conflict in the evidence as to whether this private driveway or outlet from the premises purchased by Yassar was excepted from the sale to Vassar by the contract of the parties. There was a finding against Vassar by the chancellor, and this brings us to a consideration of the weight to be given to his finding.

It is well settled in this State that on appeal chancery causes are tried de novo, and that the findings of facts by the chancellor are allowed to stand, unless they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465.

As we have already seen, an easement of necessity of a private way ordinarily arises where one conveys to another land entirely surrounded by the land of the grantor, or the land of the grantor and that of a stranger. In such a case, parol proof of the way of necessity gives rise to an implied grant of an easement or right of way across the grantor’s land, although none is expressly granted by the deed.

In the case before us, there was no express grant of a right-of-way over the grantor’s land in the deed, and the chancellor found that the implied grant of a right-of-way by necessity was overcome by the proof on the part of appellee to the effect that at the time of the conveyance it was expressly agreed between Vassar and White that the former was only to have the use of the private way so long as the land over which it extended was owned by White.

■On this point, N. H. White was a witness for the defendant. According to his testimony, when he sold the property to Yassar, he told him that it was worth $500 with the road to it; but that there was no road to it, and that if Vassar wanted it for $3-60 he conld have it for that price. White told Yassar that he would knock off the $140 so as to help him buy a road out. He expressly told Yassar that he was not getting a roadway out from the house, and Yassar so understood the agreement.

The testimony of White was corroborated by that of E. E. Trippe, who wrote the contract between Yassar and White for the purchase and sale of the lot in question. J. 0. Mitchell testified that before he built the fence in question Vassar asked him if he was going to fence in his land; and that he, Mitchell, replied that he was going to- do so when he got able. Yassar made no objection, but did object when Mitchell began to build the fence.

A. Z. Vassar was a witness for himself. According to his testimony, he agreed to buy the property in question if White would guarantee* him a road to it. White agreed to this, and he bought the property. He denied that White told him that he could make use of the private road only so long as he owned the property; and that he would have to buy a road out from his property when White sold the lots along which the private way extended.

In addition to this testimony is the evidence to the effect that a private way was necessary to give Yassar an outlet from his property to the street.

Under this state of the record, it cannot be said that the finding of the chancellor is clearly against the weight of the evidence. While his finding results in a hardship to Vassar, still it would not be equitable to require Mitchell to furnish a private way for an outlet to Yassar’s land, if the latter purchased it for a lower price because it had no such outlet. In other words, if Vassar acquired title to the property for a lower price because it had no outlet, he' was in no position to claim rights which amount to a burden upon a subsequent grantee of White, which he, Vassar, had expressly renounced in order to secure such conveyance.

It follows that the decree must be affirmed.


author: Hart, J.,

text:
    District No. 21 United Mine Workers of America v. Bourland.
    Opinion delivered November 9, 1925.
    1. Prohibition — scope of writ. — The office of the writ of prohibition is to restrain an inferior tribunal from1 proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no' other protection against the wrong that will be done by such usurpation.
    2. Receivers — pendency of suit as prerequisite. — Pendency of a suit is a prerequisite to the appointment of a receiver.
    3. Receivers — necessity of party defendant. — Since equity acts on the person, and not against property, and the appointment of -a receiver is an equitable proceeding, the court cannot appoint a receiver where there can be no legal service of summons against the defendant.
    4. Associations — right to sue. — An unincorporated body of men, or a voluntary association of persons, cannot be sued in their society name, in the absence of a statute to that effect.
    5. Common law — binding nature of rules. — In the absence of statute on the subject, the courts are bound by a rule of the common law.
    6. Equity — jurisdiction of torts. — Equity-will not by an original action take jurisdiction of a case involving a question of unliquidated damages arising from a tort.
    7. Associations — service of process. — Under Crawford & Moses’ Dig., § 1098, providing that where a matter is of common or general interest, or the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, held that, in a suit by coal operators to recover unliquidated damages for injuries to their property by wrongs of members of an unincorporated association, the court was without jurisdiction to appoint a receiver of such association, where no service was had on the members of such association.

      8. Prohibition — unauthorized appointment op receiver. — Members of an unincorporated association were entitled to a writ prohibiting the chancery court from impounding funds of such association, in which they had an interest, where the court had no jurisdiction over members of such association.
    Prohibition to Sebastian Chancery Court, Pt. Smith District; J. V. Boivrlandj, Chancellor;
    writ awarded.
    STATEMENT OE PACTS.
    This is an application by District No. 21, United Mine Workers of America and certain individuals, who are members of said association, for a writ of prohibition to the chancellor of the Tenth Chancery District of Arkansas to restrain proceedings on a receivership.
    The facts upon which the application is-made as stated in their petition and admitted are the following:
    On the 19th day of June, 1925, the Greenwood Coal Company, Mammoth Vein Colliery Company, ’and the Backbone Coal Company filed a complaint in the Sebastian Chancery Court for the Pt. Smith District 'against District No. 21, United Mine Workers of America, certain locals of said Association in Sebastian, Franklin, Johnson, Logan and Pope counties in the State of Arkansas, and certain individuals who are members of said locals.
    According to the allegations of the complaint, District No. 21, United Mine Workers of America, is a voluntary unincorporated association which embraces the States of Arkansas, Oklahoma and Texas; said district is a subdivision of the United Mine Workers of America, a voluntary unincorporated association, international in its scope; said district is subdivided into locals which are designated by numbers; each of the individual defendants is a member of said association, and belongs to some one of the numerous locals composing said district; William Dalrymple is president of the defendant district, Gomer Jones, vice-president, M. N. Henson, secretary-treasurer, and Robert Kindrick, James Douglass, James Bell, Prank Manning, and Lawrence Santi, are board members composing what is commonly called the district executive ¡board. Robert Kendrick is a citizen of Franklin County, Ark., James Douglas and M. N. Henson are citizens of Sebastian County, and the other officers and board members are residents of Oklahoma.. The membership of said district in the three States named aggregates several hundred. Said defendants and all other members of said association are engaged in mining coal and working around ¡coal mines in said ¡States.. They mine coal and work around coal mines under a contract with the ¡coal operators and their agents and representatives. The members of said association pay dues and assessments which are divided into various funds, known as a general fund, defense fund, etc. The plaintiffs in the original suit are engaged in operating coal mines, and the members of said association have been engaged in mining coal and otherwise working in their coal mines. The members of the association went-on a strike and have resorted to threats, intimidations, coercion, violence, and lawlessness to compel the owners of the coal mines to accede to their demands. The members of said association have assaulted and severely injured some of the servants of the plaintiffs. They have damaged and destroyed a large amount of mining property of the plaintiffs.
    The prayer of the complaint of the plaintiffs in the original suit is that the defendant district, the individuals named in the complaint, and all other members of said district, ¡and those associated with them, be enjoined from destroying any of the property of the plaintiffs, and from going upon their property and interfering in any manner with their agents and employees. A temporary restraining order, as prayed for in the complaint, was issued by the chancery court on the 19th day of June, 1925.
    An amendment to the complaint was filed by the plaintiffs on August 31, 1925. It is alleged in it that; since the issuance of the temporary restraining order, the defendants and their associates have daily violated the injunction order and have destroyed the property of the plaintiffs.
    The Backbone iCoal -Company states that the defendants and their associates have burned and destroyed the tipple at its mine in Sebastian County, and that it has been compelled to abandon the operation of its mine. It alleges that, by reason of the destruction of its property, it has been damaged in the sum of $30,000.
    The Mammoth Vein Colliery Company alleges that it is prevented from operating its mine in Sebastian County, A^k.; that by violence and threats the defendants and other associates prevented the plaintiff from procuring employees to operate its mine,, and to prevent the destruction of its property by the accumulation of water; that by reason of said threats it has been prevented from protecting its machinery and pumping the water out of its mine; that the accumulated water has destroyed large quantities of its machinery and mine tracks, and that by reason of the loss of its property it has been damaged in the sum of $35,000.
    The Greenwood Coal Company alleges that its officers and employees have been assaulted by the defendants and their associates, and some of them have been forced to leave its employment. Asa result of this intimidation, its daily tonnage has been greatly reduced, and it has suffered damages as the result of these lawless acts in the sum of $25,000.
    The amendment to the complaint concludes with a prayer, which is as follows:
    “Wherefore, premises considered, plaintiffs pray: First: ‘That the court appoint a receiver to -take charge of all the funds belonging to said district and due and payable -to it by the parties named, and any others not named, and any and all funds belonging to the locals as named, or due and payable to them or either of them.
    ‘ ‘ Second: That each of the banks and each coal company named herein be required by proper order to turn over any sum or sums in their hands belonging to the defendant district or any of the locals named herein, also to turn over to such receiver any sums coming to their hands in the future belonging to the defendant district or any of the locals named herein.
    ‘ ‘ Third: That upon final hearing plaintiff Backbone Coal 'Company prays that it be given judgment for damages in the sum of $30,000; plaintiff Mammoth Vein Colliery Company prays for judgment in the sum of $35,000; plaintiff Greenwood Coal Company prays for judgment in the sum of $25,000.
    “The plaintiffs pray that the sums in the hands of the receiver, or so much thereof that may be necessary, be applied in payment of the judgment here prayed for and cost of this action.”
    On the same day the chancellor of the Sebastian Chancery Court, Ft. Smith District, appointed a receiver as prayed for by the plaintiffs.
    In the order appointing him, the receiver was directed to take charge of any and all sums held for and in behalf of the defendant district or the locals in all banks and coal companies.
    The officers of the defendant district and locals named in the amendment to the complaint are ordered to turn over to the receiver all sums in their hands belonging to the defendant district and locals and all sums that may come to their hands in the future.
    The receiver is directed to hold these funds until further orders of the court. The receiver is also directed to take charge of the property belonging to the district and the locals and to preserve the same until further orders of the court.
    On September 24, 1925, the defendants filed a motion in the chancery court to vacate and set aside the order made by the chancellor in vacation appointing a receiver as aforesaid.
    The chancery court overruled said motion, and the defendant excepted, to the ruling of the court. Sfibsequently the application for a writ of prohibition was filed in this court, and the chancellor given due notice thereof.

      8. P. Freeling, C. E. B. Gutter and Dave Partain, for appellant.

      Webb Covington and Evans & Evans, for appellee.

      G. L. Grant, amicus curiae.

   Hart, J.,

(after stating the facts). The case not being here on appeal, but upon prohibition, our consideration must be confined to the question of the power of the chancery court to appoint a receiver in a case of this sort. The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation.. Russell v. Jacoway, 33 Ark. 191; and Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, and cases cited.

In the latter case it was also held that the writ of prohibition lies where an inferior court is proceeding in a manner beyond its jurisdiction, and where the remedy by appeal, though available, is inadequate. The court said that the litigant is not bound to submit to the exercise of jurisdiction not authorized by law, even though he has the right of appeal after the exercise of the jurisdiction has been consummated and has resulted in a judgment from which he can appeal. The reason given was that, if the absence of the right of appeal was essential to the issuance of a writ of prohibition, then that remedy would be entirely unavailing in any case; for under our Constitution the right of appeal is granted in all judicial proceedings. In the same section of the Constitution giving the Supreme Court appellate jurisdiction, it is also invested with a general superintending control over all inferior courts of law and equity with power to issue writs of habeas corpus, prohibition, mandamus, quo warranto and other remedial writs and to hear and determine the same. The writ of prohibition is an appropriate remedy to restrain the exercise of jurisdiction by an inferior court over a subject-matter when, it has none, and over parties where it can acquire none.

It is a principle of elementary law that the pendency of a suit is an absolute prerequisite to the appointment of a receiver, and, unless made in a suit pending, the court is without jurisdiction and the order appointing the receiver is void. Standard Encyclopedia of Procedure, vol. 22, pp. 320 and 323 and cases cited; High on Receivers, 4 ed. § 17; Alderson on Receivers, § 107; 23 R. C. L. §§ 5 and 6; 34 Cyc. p. 28; Clark, The Law of Receivers, vol. 1, § 644; Harwell v. Potts, 80 Ala. 70; Merchants & M. Nat. Bank v. Circuit Judge, 43 Mich. 292; Guy v. Doak, 47 Kan. 236, 27 Pac.. 968; Pressley v. Harrison, 102 Ind. 14, I. N. E. 188; Winona, W. E. & S. B. Tract. Co. v. Collins, 162 Ind. 693, 69 N. E. 998; Baltimore Bargain House v. St. Clair, 58 W. Va. 565, 52 S. E. 660; Jones v. Bank of Leadville, 10 Colo. 464, 17 Pac. 272; Baker v. Backus, 32 Ill. 79; Stone v. Wetmore, 42 Ga. 601 ; Gold Hunter M. & S. Co. v. Holleman, 3 Idaho 99, 27 Pac. 413; State v. Ross, 122 Mo. 435, 25 S. W. 947, 23 L. R. A. 534; Popp v. Daisy Gold Min. Co., 27 Utah 83, 74 Pac. 426; Gray’s Harbor Com. Co. v. Fifer, 97 Wash. 380, 166 Pac. 770; and People v. Denver Dist. etc., 33 Col. 293, 80 Pac. 908.

In this connection we are not unmindful that this court has held that in exceptional oases a court of equity may appoint a receiver before service of summons upon the defendant and without notice to him. Excelsior White Lime Co. v. Rieff, 107 Ark. 554. This is done on the same principle that an injunction will sometimes be issued before actual service and before actual notice of the application is given. In other words, in such case it must appear that the relief and protection can he given in no other way. Since equity acts on the person, and since the appointment of a receiver is an equitable proceeding, and since equity does not act directly against the property, the court cannot appoint a receiver where there can be no legal service of summons against the defendant.

In the case at bar an attempt was made to sue District No. 21, United Mine Workers of America and the locals which are unincorporated associations by their society or company names. This court has held, however, that an unincorporated or voluntary association of persons has no legal entity and cannot be sued by its society name. Baskins v. United Mine Workers of America, 150 Ark. 398.

This is the rule at common law, and it is also conceded that there is no statute in this State changing the common law and authorizing an unincorporated association of persons to be sued in its society name. We are asked to overrule the case last cited under the authority of United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344.

There is no Federal question involved in the matter, and consequently no reason why we should overrule our own opinion, except that it is wrong. We think the reasons assigned by the learned Chief Justice for a change of the rule addressed themselves to legislative bodies rather than courts. In the absence of a statute on the subject we are bound 'by the rule of the common law, which is in no sense opposed to any public policy of the State and which has become a part of the laws of the State. Hence we adhere to our former opinion that an unincorporated body of men or a voluntary association of persons can not be sued in their society name, in the absence of a statute to that effect.

An attempt was also made to obtain service on the defendant under § 1098 of Crawford & Moses’ Digest. That section provides that where the question is one of common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.

It will be remembered that this suit originated as an equity proceeding, and it may be here stated that the section of the statute just referred to is so far as equity is concerned an adoption by the Legislature of the doctrine of virtual representation, which was in accordance with the existing practice of courts of equity, at the time of the adoption of our Constitution.

The case at bar as a primary matter involves tort. This suit was brought in equity by certain coal operators to recover unliquidated damages for personal injuries to their servants and for injuries to their property, which they allege was caused by the wrongs of the members of the unincorporated associations named in the bill and by the individuals named therein. Equity will not by an original action take jurisdiction of a case involving a question of unliquidated damages arising from a tort. Brown v. Wabash Railway Co., 96 Ill. 297.

The doctrine is well stated in Story’s Equity Jurisprudence, 14 ed., vol. 2, § 108s2, as follows:

“It maybe stated, as a general proposition, that for breaches of contract, and other wrongs and injuries cognizable at law, courts of equity do not entertain jurisdiction to give redress by way of compensation or damages where these constitute the sole objects of the bill. Flor wherever the matter of the bill is merely for damages, and there is a perfect remedy therefor at law, it is far better that they should be ascertained by a jury than by the conscience of an equity judge. And indeed the just foundation of equitable jurisdiction falls in all such cases, as there is a plain, complete, and adequate remedy at law.”

Professor Pomeroy states the rule as follows:

“Where the primary right of the plaintiff is purely legal, arising either from the non-performance of a contract or from a tort, and the money is sought to be recovered as a debt or as damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as fraud, mistake, accident, trust, accounting, or contribution, and the like, full and certain remedies are afforded by actions at law, and equity has no jurisdiction; these are cases especially within the sole cognizance of the law.” Pomeroy’s Equity Jurisprudence, 3rd ed., vol. 1, § 178.

The text of these learned writers has been followed by this court. In Dugan v. Cureton, 1 Ark. 31, it was held that the question of damages is purely legal, and that parties can not come into chancery to have their unliquidated damages assessed and set off against a judgment at law. Chief Justice Ringo in discussing the question said: “In this ease the appellees do not seek to rescind or avoid the contract of sale, but expressly affirm it, and ask a compensation in damages for the alleged breach of the contract on the part of the appellant, without showing any obstacle whatsoever to their recovery in a court of law, or even alleging that they will suffer a great or irreparable loss or injury by being obliged to resort to a court of law to recover their damages. The question of damages is purely legal, and, if the appellees are warranted in coming into a court of chancery to have their unliquidated damages assessed and set off against the appellant’s judgment at law, the like resort may be had to the courts of equity in every case of mutual and independent covenants, especially if one of the parties should sue and recover a judgment at law which the adverse party might pray the court to enjoin and set off with his damages sustained by reason of the breach of covenant or agreement in his favor, and thus the jurisdiction in that class of cases might be effectually taken from the courts of law and transferred to the courts of equity, contrary to what is understood to be the well-defined limit of the jurisdiction of courts of equity. ’ ’

The distinction between law and chancery was again recognized in Ewell v. Tidwell, 20 Ark. 136, where it was held that under our Constitution and laws a court of chancery had no jurisdiction to declare a will void for fraud in obtaining it.

Again in Hester v. Bourland, 80 Ark. 145, the court said that our Constitution divides and parcels the judicial power of the State among the courts named, and that under it the Legislature can vest chancery courts only with jurisdiction in matters of equity. Hence it was held that, election contests for nominations n,ot being matters of equity, an act of the Legislature attempting to vest chancery courts with jurisdiction as to them was unconstitutional and void. See also Gladdish v. Lovewell, 95 Ark. 618; and Walls v. Brundidge, 109 Ark. 250.

There is nothing in the'principles decided in Horstmann v. LaFargue, 140 Ark. 558, which conflict with the above. In that case, the court held that claimants for damages arising from torts are within the protection of statutes against fraudulent conveyances, and are regarded as creditors within the meaning of such statutes. The suit in that case was in the nature of a creditor’s bill, and its primary object was to set aside a fraudulent conveyance. The court pointed out that chancery courts always had had jurisdiction to set aside fraudulent conveyances, and that our statute dispensing with the necessity of obtaining a judgment before commencing a suit to set aside a fraudulent conveyance simply provided another means of proving the insolvency of the debtor, which is an indispensable prerequisite to the granting of the relief sought. A creditor’s bill has always been one of the favorite subjects of equity jurisprudence, and in. a case where the setting aside of a fraudulent conveyance is the primary object of the bill, equity, having acquired jurisdiction of the case for that purpose, will settle all the issues involved and afford complete relief.

As a primary matter, the cause was to set aside a fraudulent conveyance at the suit of a creditor, and the assessment of damages was made under the principle that where a court of equity acquires jurisdiction for any purpose it will determine the whole cause, although in so doing it may decide a question which, standing alone, would furnish no basis of equitable jurisdiction.

The result of our views is that the gist of the action is a suit in tort for unliquidated damages, and the chancery court had no jurisdiction, and that § 1098 of our statutes, which is but an adoption of the old chancery doctrine of virtual representation, is unavailing as a method of obtaining service in a case in equity where there is no jurisdiction of the subject matter..

It follows as a consequence that no service was had or could be had upon the members of District No. 21, United Mine Workers of America and the local union, and the appointment of a receiver in an action against them was a nullity. It cannot well be seen how a court can take from a defendant the possession of property unless it can acquire jurisdiction by service of process.

The next question is whether or not the relators in the petition for the writ of prohibition are in a position to obtain the writ. They are members o,f an unincorporated association and have an interest in the funds sought to be impounded by the appointment of a receiver. Some of them have been intrusted by their associates with the care and custody of these funds. Hence as interested parties they would have the right to invoke the power of this court in granting a writ of prohibition to prevent the chancery court from impounding its funds by the appointment of a receiver in an action where it could acquire no jurisdiction over the members of the association.

It follows that the writ of prohibition asked for will be granted and the receivership ordered by the chancellor vacated.

Smith, J., concurs.


author: Smith, J.

text:
    Bearden v. McCracken.
    Opinion delivered November 9, 1925.
    Damages — breach op contract. — In an action for damages for breach of plaintiff’s contract to erect a building to ¡be leased to plaintiff for a restaurant, money which plaintiff might have earned in other employment declined by him in reliance upon above contract and expenses incurred by plaintiff in moving to town were too remote to be recoverable for breach of such contract; the measure of damages .being the loss of profits from the restaurant business, which plaintiff admitted that he could ■not show.
    Appeal from Marion Circuit Court; J. M. Shinn, Judge;
    affirmed.

      J. II. Black, for appellant.

      Elmer Owens, for appellee.
   Smith, J.

Appellant filed a complaint in which, he alleged that on the 1st day of February, 1924, he aud the defendant entered into a contract whereby the defendant agreed to erect a business building in the town of Flippin, Arkansas, to be used and occupied by the plaintiff as a restaurant, and for which plaintiff agreed to- pay a monthly rental of $10 for a period of one year. The building w!as to be adequate for the purpose named, and was to be erected within ten days from February 1, 1924. Belying up-on the defendant’s -agreement to erect the building plaintiff declined an offer of employment at $80 per month for a period of a year, and moved his family and household goods to Flippin, and was ready and willing to rent the building -and operate the restaurant. Defendant failed to comply with h-i-s agreement to erect the building, whereby plaintiff was thrown -out of employment from the 1st day of February, 1924, until the 1st day of July, 1924. Plaintiff sued for the time thus lost and $20 as expenses incurred'in moving to Flippin.

A demurrer to this complaint was sustained, and, plaintiff electing to stand thereon, the -cause was dismissed, and from that order is this appeal.

Appellant concedes in -his brief that he cannot prove any damages flowing from the alleged breach of the contract by way of profits lost from defendant’s failure to erect the building; and, unless he is allowed to recover the sum he would have received by accepting the employment which he declined in order that he might enter the restaurant business, he will he without redress for the breach of the contract. In other words, he concedes that the only damages he can prove -are the loss of the employment he declined and the expense of moving to Flippin.

These damages are not recoverable under the allegations of the complaint. There is no allegation that the rental value of the building was more than plaintiff agreed to pay, and there is an admission that no loss of profits could be shown. The business had never been established, and plaintiff concedes that he cannot show that. any profits would have been earned had he conducted the restaurant business for the period contemplated.

In the case of Black v. Hogsett, 145 Ark. 178, the facts were that Black, who owned and operated a confectionery store and cold-drink stand, sold the business to Mrs. Hogsett, and rented her a soda fountain. Black claimed that Mrs. Hogsett bad failed to exercise an option to purchase the soda fountain, and he sold it to another party. Mrs. Hogsett alleged a breach of her contract and recovered a judgment for damages for the profits lost by being deprived of the use of the fountain. It was contended on the appeal to this court that damages for the profits were not recoverable, but in sustaining the recovery we said: ‘ ‘ The principle touching the question of profits as an element of damages is well settled. The rule is that, where one party to a contract is prevented from performing the same by.the fault of the other party, he is entitled to recover the profits- which the evidence makes it reasonably certain he would have made, had the other party carried out his contract. The rule that damages which are uncertain or contingent cannot be recovered does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover” (citing cases).

Here plaintiff proposed to embark in the restaurant business for the purpose, of course, of earning the profits to be derived from the conduct of that business, and defp-i-idant was to furnish the building in which that business was to be conducted. The measure of damages for the breach of such a contract is the profits lost. At section 65 of the chapter on Damages in 8 R. C. L. page 505, it is said: “Where the profit to be made was the inducement to the contract, such profit is the measure of damages. So a recovery may be had for the loss of profits which are the direct and immediate fruits of the contract itself. Such profits are not to be regarded as consequential, remote, or speculative in character, but are regarded as part and parcel of the contract itself, entering into and constituting a portion of its very elements, something- stipulated for, and the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation.”

If it be true, as plaintiff concedes, that he cannot prove the loss of any profits as the result of defendant’s ■breach of -the contract, then he has failed to state a cause of action, for the amount of such profits constitutes the measure of his damages.

The money plaintiff might have earned had he not contracted to engage in the restaurant business, and the expense he incurred in moving to Flip pin, are too remote to be recoverable as damages for the breach of the contract set out in the complaint, and the demurrer to the complaint was properly sustained under the admissions contained in appellant’s brief. The judgment of the court below is therefore affirmed.


text:
    Collier Commission Company v. Redwine Brothers.
    Opinion delivered November 9, 1925.
    1. Principal and agent — undisclosed principal. — Where a sale of potatoes was not for the account of a Commission Company, but for the owner subject to the liability of the seller to account to the Commission Company for a commission, the Commission Company, having no knowledge of the sale or of the purpose for which they were brought, was not liable, in an action for breach of warranty, as agent for an undisclosed principal.
    2. Sales — instructions.—Error of the court, in an action for breach of implied warranty in the sale of seed potatoes, in refusing, to instruct that, if the failure of the potatoes to germinate was caused by the manner in which they were handled, the verdict should be for defendants was not cured by giving an instruction to find for defendants if the failure to germinate was due to weather or soil conditions.
    3. Principal and agent — undisclosed principal. — Where a commission firm was mere agent for the sale of potatoes, but did not disclose the name of the principal, they will be liable to the buyer for breach of a warranty in such sale.
    4. Sales — breach of warranty — jury question. — Evidence held to make it a question for the jury whether there was an express or implied warranty in the sale of potatoes.
    5. Sales — breach of warranty — jury question. — Where a buyer alleged that potatoes were bought for seed, the question whether a statement of the seller’s agent that they could be used for planting was a mere expression of opinion on which the buyer had no right to rely and did not in fact rely, held under the testimony for the jury.
    Appeal from Sebastian Circuit 'Court, Fit. Smith District,* John E. Tatum, Judge;
    reversed.

      Hill & Fiizhugh, for appellant.

      Warner, Hardin & Warner, for appellee.
   Smith, J.

Appellees, who were the plaintiffs below, alleged that they are merchants at Spiro, Oklahoma, and that they bought a carload of seed Irish potatoes from the Collier Commission 'Company, which company was the agent of John Witherspoon & Company; that said potatoes were bought for the specific purpose, of being planted as seed potatoes, but the potatoes were unfit to be used for that purpose. There was a prayer for damages, and upon the trial judgment was rendered against both Collier Commission Company and Witherspoon & Company.

These defendants filed separate answers, in which they denied that the potatoes were sold for seed purposes, and there was a denial that the Collier Company was the agent of Witherspoon & Company. It was alleged by the Collier Commission Company that the potatoes were bought after inspection and without warranty, express or implied, and that, if there was a failure of the potatoes to germinate, the failure was attributable to the manner in which‘they were handled after they had been purchased, or to the improper planting thereof, in conjunction with a spell of freezing weather after they had been planted.

Without setting out the voluminous testimony in the record, it may be said that plaintiffs offered testimony tending’ to support the allegations of the complaint and legally sufficient to support the recovery as against the Collier Commission Company, on the grounds, (1) that there was an implied warranty resulting from the fact that the potatoes had been sold as seed potatoes, and (2) that there was 'an express warranty that the potatoes were fit for planting as seed potatoes, and there was testimony to support the finding that the potatoes had lost their germinating power.

Collier Commission Company and Witherspoon & Company are ¡both produce brokers in Fort Smith, and the oar of potatoes in question had been shipped to Witherspoon & Company for sale for the account of C. C. Whitnack & Company, from Lincoln, Nebraska. The testimony shows that the car of potatoes in question was sold by Collier Commission Company to Redwine Brothers November 22, 1921, and the potatoes were billed out as being seed potatoes. The testimony also shows that it was unusual to buy seed potatoes at that season of the year, on account of the difficulty in keeping them through the winter. Usually potatoes for seed purposes are shipped in from the North in January and February, and it was the contention of Collier Commission Company that the potatoes in question had been shipped in as eating potatoes, and that this fact was known to Redwine Brothers at the time they purchased them.

The instructions given in the case at the request of the plaintiff were to the effect that, if Collier Commission Company and Witherspoon & Company sold potatoes without disclosing the principal for whom they were acting, they were liable as principals, and we think the testimony warranted the submission of this question to tlio jury, so far as the Collier Commission Company is concerned, hut we do- not think a recovery can he sustained against Witherspoon & Company on that theory. Witherspoon .& Company was itself the agent of the owner, and had the potatoes for sale on commission. Witherspoon & 'Company did not own the potatoes, and did not sell them, 'and had no knowledge of the purpose for which Redwine Brothers bought them or that they had bought them, and the sale made by Collier Commission Company was not for the account of Witherspoon & Company, hut for that of the owner of the potatoes, subject probably to the duty to account to Witherspoon & Company for a part of the agent’s commission in making the sale, as- the potatoes were in the possession of Witherspoon & Company for sale.

The judgment against Witherspoon & Company will therefore be reversed, and the cause of action against that company dismissed.

We have said that, a case was made for submission to the jury against Collier Commission Company, and we find no error in the instructions given on behalf of the plaintiffs as against Collier Commission Company.

We are of opinion, however, that the court erred in refusing _to give an instruction numbered 11 requested by Collier Commission Company, which reads as follows: “11. If you believe from the evidence in this case that the failure of the potatoes to germinate was caused on account of the manner in which the same were handled or kept by the plaintiffs after plaintiffs bought said potatoes, or on account of the heat or cold to which such potatoes were subjected after such purchase, if any, that the germinating powers were destroyed or impaired, then your verdict should be for the defendant.”

The court did give at the request of Collier Commission Company an instruction numbered 8 reading as follows : “8. If you believe from the evidence in this case that a failure' of the potatoes to germinate was due either to the condition of the weather or the condition of the ground or soil or the combined condition of the soil, weather, or the manner in which said potatoes were planted, then the court instructs you that the plaintiffs cannot recover in this action, and your verdict should be for >the defendants.”

Appellees insist that the giving of instruction numbered 8 cured any error in failing to give instruction numbered 11. We do not agree with counsel in this'com tention. The defense was interposed that the land in which the potatoes had been planted was not properly prepared, and, further, that after they had been planted there was a protracted spell of cold weather, during which time the thermometer registered 24 degrees on February 28th and 27 on March 4th, and on March 2nd the temperature was as low as 19 degrees, this being 13 degrees below freezing. Of course, if the potatoes failed to germinate on this account the defendant Collier Commission Company could not be held liable, and instruction numbered 8 submitted this question. But the defendant Collier 'Commission Company interposed the further defense that the potatoes had not been properly kept in storage by the plaintiffs Redwine Brothers during the winter, that the potatoes had been exposed to changes from heat and cold in the basement where they were stored, and had been kept in sacks saturated with salt, and there was testimony that contact with salt destroyed the germinating properties of potatoes. Instruction numbered 11 would have submitted tiffs question to the jury, and should have been given, as No. 8 did not cover this theory of the defense, and for the refusal to give instruction numbered 11 the judgment must be reversed.

Counsel for Collier Commission Company earnestly insist that the .judgment should not only be reversed, but that the cause of action should be dismissed for three reasons.

First. It was known by Redwine Brothers that Collier & Company were mere brokers, offering potatoes which were not shipped to be sold as seed potatoes. It is true 'Collier & Company were mere agents, and were known to be such only, but they did not disclose the name of the principal for whom they were acting, and Redwine Brothers had the right to hold Collier & Company as principal. . Cooley v. Ksir, 105 Ark. 307; Beatrice Creamery Co. v. Garner, 119 Ark. 558.

The second insistence of Collier & Company for the dismissal of the action is that there was no warranty, express or implied, that the potatoes were fit to be used for planting purposes. ¡We have said, however, that there was testimony from which the jury might have found that there was an express warranty, although this was a disputed fact. Instructions given submitted the question whether there was an express warranty. In addition, the testimony warranted the submission of the question of an implied warranty arising’ from the fact that the potatoes were sold for seed purposes, and other instructions submitted that issue.

In the case of J. S. Elder Grocery Co. v. Applegate, 151 Ark. 565, we considered the question whether there was an implied warranty of germinating power on the sale of seeds for planting, and while we recognized that there was a division in the authorities on the subject, we adopted the view of the courts holding that there was an implied warranty that seed sold for planting are fairly and reasonably suited for that purpose, and that this implied warranty is breached if the seed sold for planting purposes are unfit for that use because they have no germinating power.

The third insistence for the dismissal of the action is that the undisputed testimony shows that all parties knew that the potatoes had been shipped to be sold as eating potatoes, and that any statement made by any representative of Collier & Company that the potatoes could be used for planting purposes was a mere expression of an opinion, upon which Redwine Brothers had no right to rely and did not, in fact, rely. We think, however, that these were questions for the jury, and that the testimony, in its entirety, made a case for submission to the jury.

For the refusal to give instruction numbered 11, the judgment of the court below must be reversed, and it is so ordered.


author: McCulloch, C. J.

text:
    Brewer v. Yancey.
    Opinion delivered November 16, 1925.
    1. Appeal and error — conclustveness op chancellor’s finding.— A chancellor’s finding of facts upon testimony evenly balanced will not be disturbed on appeal.
    2. Vendor and purchaser — innocent purchaser. — Where the owner of the fee in land, after making an absolute conveyance to a bank, remained in possession, one who, after ascertaining that the record title was in the bank, made inquiry of the grantor in possession and was informed that the land belonged to the bank, and thereafter bought the land from the bank, was entitled to protection as an innocent purchaser, though the owner of the land at the time inquiry was made stated that the fee was in his children because his deed was to him “and his heirs.”
    3. Mortgages — absolute conveyance as mortgage — accounting.— Where a deed in form an absolute conveyance is treated as a mortgage, equity will require the grantor as a condition of redemption to pay the whole of his debt to his grantee, and not merely the consideration expressed in the deed.
    Appeal from Conway Chancery Court; W. E. Athwu son, Chancellor;
    affirmed.

      Coulter, McHamey é Coulter, for appellant:

      M. H. Dean and Calvin Sellers, for appellee.
   McCulloch, C. J.

This case has been here on a former appeal, and in the opinion of the court (159 Ark. 257) the facts are set forth in detail. It is only necessary to make a very brief outline now of those facts in order to understand the questions presented on the present appeal.

William Brewer, an old negro, was the owner of a tract of farm land in Conway County, containing* 627 acres, and on February 1, 1910, he mortgaged the land to the Bank of Plumerville to secure a note in the sum of $4,500, which included money advanced to pay off an antecedent debt to a. business concern in Plumerville and for estimated future advances to be made during the crop season. Brewer was unable to pay the debt, and on March 4, 1911, he and his wife executed to the Bank of Plumerville a deed with full covenants of warranty conveying the land to the Bank of Plumerville for a recited consideration of $4,000. The deed was in absolute form 'and purported to convey the title in fee simple. Brewer remained in possession of the land for several years, and finally the Bank of Plumerville sued him at law to recover possession, and the canse was transferred to equity on Brewer’s cross-complaint alleging that the deed, though absolute in form, was in fact executed as a mortgage to secure the original debt due to the bank. In the meantime the Bank of Plumerville had sold and conveyed to J. B. Yancey a part of the land containing 267 acres, and during the pendency of the action in the chancery court Yancey resold the land to Sam M- Yancey, one of the appellees. The -bank also sold another portion of the tract to M. 0. MeKindra. It was the contention of the bank that the deed was an absolute conveyance, and that Brewer remained in possession as the bank’s tenant. On the trial of the issues, Yancey and MeKindra both claimed to be innocent purchasers without notice of any of Brewer’s alleged equities. On the final hearing the chancery court rendered a decree finding that the deed to the Bank of Plumerville was intended as an absolute conveyance according’ to its purport, and was not intended merely as a mortgage, and entered a decree in favor of the Bank of Plumerville and its grantees. There was no finding made upon the question of Yancey ¡and MeKindra being innocent purchasers. Brewer’s sons claimed an interest in the lands and were parties to that action, likewise Coulter and Williams, who claimed interests under conveyances from Brewer. All of them, together with Brewer, prosecuted an appeal to this court, and it was decided here that the evidence established the fact that the deed was executed as a mortgage, and not as an absolute conveyance, and tbe decree of the chancery court was reversed with directions to “render a decree to the effect that the‘deed in question is in fact a mortgage; to determine whether M. C. Mc-Kindra- and Sam M. Yancey are innocent purchasers of the particular parcels of land purchased by them out of the 627-acre tract in controversy, and to state an account between William Brewer and the Bank of Plumerville, with permission to the parties to adduce additional testimony, if desired, upon'the undecided issues.”

Additional testimony was taken by the parties and submitted to the court, together with the original proof in the case, and upon final hearing the chancery court decided that McKihdra was not an innocent purchaser, but that J. R. Yancey was an innocent purchaser of the 267-acre tract, and that his purchase inured to the benefit of his grantee, Sam M. Yancey, and the cause was then referred to a master to state the account between William Brewer and the Bank of Plumerville. Proof was taken before the master with reference to the state of the account, and on the report of the master the court overruled exceptions and rendered a final decree quieting the title of appellants to the land, except the 267-acre tract held by Yancey, and subject to the lien in favor of the Bank of Plumerville for the sum of $4,384.70, the balance found to-be due on the mortgage debt to the bank.

The first and principal contention of appellants in urging a reversal of the decree is that the evidence does not support the finding that J. R. Yancey was an innocent purchaser. It is not contended that >Sám M. Yancey bought without notice of the pending litigation with respect to the title, but his rights are based upon the claim that Ms grantor, J. R. Yancey, was an innocent purchaser, and that the purchase inured to his benefit. The question presented, then, is whether or not the evidence is sufficient to sustain the finding that J. R. Yancey was an innocent purchaser.

it is conceded that Yancey purchased the land from the bank prior to the commencement of this action and long after- tlie conveyance was executed by 'William Brewer to the bank, and that he paid the bank the sum of $3,200 as the purchase price. . It is ¿he contention that the price paid by Yancey to the bank was inadequate. This is urged as a circumstance to show that in fact he was not an innocent purchaser. That feature of the case will be discussed later when reached in determining the question whether or not the court allowed Brewer in the settlement a sufficient credit for the amount received by the bank in the sale .of this land.

Yancey testified that he has lived in the community for a long time, was familiar with the land, . and acquainted with Brewer, and knew that Brewer had been in possession of- the land for a long time. He testified that, before he purchased the land from the Bank of Plumerville, he made inquiry as to the record title and inquired of the officers of the bank, and also the attorney who had represented the bank in the dealings between it and Brewer, and that he also had several conversations with Brewer, one of which took place on the land about a month before the purchase, and that Brewer informed him that the land belonged to the bank. - Yancey’s statement of the conversation between him and Brewer is as follows: “I went to him in the cotton patch about a month before I made the trade for this land and asked him what he was going to do about the land. He said he wasn’t going to do anything so far as he was concerned, that the land belonged to the Bank of Plumerville, or they claimed it that way. He said.: ‘As far as I am concerned, I am not going to do anything.’ He said: ‘When I die, my children will get the land if anybody buys it’. I asked him what plea his children would get this land back on, and he said that their dead mother hadn’t-signed the deed, that the old original deed was made to him and his heirs.” Yancey testified to other conversations with Brewer prior to that time, in which Brewer -made the statement to him that- he had deeded the land back to the Bank of Plumerville,’ and that the bank was the owner. This is denied by Brewer, and there is no other testimony in the record concerning these conversations except that of Yancey and Brewer. Counsel for appellants concede that thé testimony concerning these conversations is evenly balanced, and this concession is, we think, fatal to their case. On that state of the case it becomes our duty to leave the finding of the chancellor undisturbed. We only reverse chancery cases when it is found that the finding of the court is contrary to the preponderance of the evidence. The decisions of this court establishing that rule are very numerous, and it is unnecessary to cite them.

It is contended that there are inconsistencies in Yancey’s testimony which render it untrustworthy, and that we should not accept it. The same claim is made by appellees’ counsel with respect to the testimony of Brewer. It is true that there are slight inconsistencies in the testimony of each of those witnesses, but they are not irreconcilable, and are not sufficient, we think, to break down the testimony of either: The testimony on this particular feature of the case seems to be so evenly balanced that we would not feel at liberty to disturb a finding of the chancellor either way. This calls for the application of the rule stated above, that a finding of the chancellor on disputed issues of fact will not be disturbed unless it is against the preponderance of the evidence. But it is contended by appellants that even if the conversation occurred as contended by Yancey, the statement made to him by Brewer was not, when considered with all the other testimony in the case, sufficient to constitute him an innocent purchaser. The contention is, as we understand, that Brewer’s possession was sufficient to charge Yancey with notice of his equities, and that this was not overcome by the alleged statements made by Brewer to him before the purchase. It may well be asked, what more could Yancey have done to justify himself in purchasing the land? Yancey was aware of the f'aat that Brewer "was the original owner, was then in possession and had been for a long time, but he was also apprised of the fact that Brewer had conveyed tlie land to the Bank of Plumerville. It was a matter of common repute in the neighborhood that Brewer owned the land but lost it — conveyed it to the bank. Yancey made inquiry and found that the record title was complete in the Bank of Plumerville. He made inquiry of the Bank of Plumerville as to their holding, and was assured that the title was good. He inquired of the attorney who had handled the affair for the bank, and received assurances that there was a complete title. Now, in order to make sure of his rights in purchasing the land, he made inquiry of the original,owner, who was still in possession, and was told that the land belonged to the Bank of Plumerville. We ask, again, what more could he have done, to whom could he have applied for further information, and why was he not justified in accepting as true the statement made to him by Brewer? He knew that the record title was in the Bank of Plumerville, and was informed by the officers of the bank that the title was good, and the natural thing for him to do was to inquire of Brewer, who was in posr session, and he did so, asking Brewer what he was “going to do about the land.” Whatever information he had received from other sources, he found Brewer in possession, and the proper inquiry for him to make was, “what are you going to do about this land?” This was an inquiry calculated to elicit a statement from Brewer as to whether or not he was claiming the land, and, if so, what his claim was. The reply he received from Brewer was, “I am not going to do anything.” It is true that Brewer qualified his statement by saying that when he died his children would get the land, and, upon further inquiry, explained that this would be so because the original deed was “made to' him and his heirs.” It seems that he had a crude idea that his interests was limited to a life estate on account of the use of the word “heirs” in the deed, and that upon his death the land would g’o in remainder to his children: Yancey took pains to submit this question to an attorney and received assurance that such was not the effect of the deed, and that the record title in the Bank of Plumerville was perfect. The fact that Brewer made an unfounded statement to Yancey concerning the rights of his children does not lessen the effect of the other part of Ms statement to Yancey that he had deeded the land back to the Bank of Plumerville, and that the latter was the owner.

Counsel rely upon the decision of this court in Moore v. Oats, 143 Ark. 328, as sustaining their contention that the effect of Brewer’s continued occupancy was not overcome by his statement to Yancey. That case does not, we think, support the contention of counsel, for the facts were that no inquiry was made at all of the person known to be in possession of the property in controversy. We said in that case that, notwithstanding the fact that Oats found the record title complete in Ms grantor, Howell, and was informed by Howell that Buckner, the occupant, was a mere tenant, he had no right to rely upon that information, but should have inquired of persons in possession as to what their equities were, if any. The difference between that case and this is marked, for, as we have seen, Yancey did the very thing that Oats failed to do, made inquiry of the occupant.

It is argued that, in view of our decision that Brewer had not conveyed the land to the B>ank of Plumerville in fee, but that he intended the deed to operate as a mortgage, it is unreasonable that he should have made the statement to Yancey attributed to Mm, and that for that reason the chancellor’s finding should be overturned. We cannot'say that this circumstance renders it so inconsistent and unreasonable as to make Yancey’s testimony as to this statement unbelievable. It is not impossible to reconcile Brewer’s apparently conflicting statements with respect to the land. Notwithstanding his present contention, which has been sustained by the decision of this court, that he intended the conveyance to operate as a mortgage, yet he had intrusted the absolute title to the Blank of Plumerville, and it is not unreasonable to suppose that he was willing to hold them out as the absolute owners of the land. He had been unable to pay the debt and may have been willing for tbe bank to sell some of tbe land to reduce tbe debt. "Whatever bis reasons may have been for making the statement which conflicts with bis present claims, tbe chancellor was warranted in believing Yancey’s testimony that he did make it — at least it was within tbe province of the chancellor to accept tbe statement that he believed to be true, and, as before stated, we cannot overturn the finding unless it is against the preponderance of the evidence.

Our conclusion is that the court was justified in deciding that Yancey was an innocent purchaser, and the decree in favor of Sam M. Yancey, quieting his title, is affirmed.

There is no appeal by McKindra from the decree against him; hence bis claim has been eliminated from the case.

There are various assignments of error with respect to the items of the court’s statement of the account between Brewer and tbe Bank of Plumerville. Tbe appeal is also from that part of the decree.

It is contended that the court erred in directing the master to begin the statement of account from the date of the original mortgage instead of March 4, 1911, the date of tbe deed from Brewer to tbe bank. This contention is based upon the fact that tbe deed recited a consideration of $4,000, which is urged as conclusive of tbe amount of tbe debt at the time, and also that in the opinion of this count on tbe former appeal there is a statement that tbe deed “expresses the correct amount of ■ tbe existing indebtedness, ’ ’ and that that was a conclusive finding by this court of the fact that the account should be stated from the date of the deed. Neither of these arguments is sound. In the first place, the recital of the consideration in the deed purporting to convey absolute title was not conclusive of the amount of the indebtedness. A court of equity in permitting a grantor to disregard the terms of his absolute deed and treat it as a mortgage, must require him to do equity by paying the whole of the debt. The court in disregarding the form of the conveyance must necessarily do complete equity between the parties, and this can only be done by requiring payment of the whole of the'original debt which the mortgage was given to secure. The. mention in our former opinion as to the amount of the debt was a mere narrative of a fact not in issue on that appeal, and therefore there was no decision. The court expressly refrained from directing any decree as to the amount to be paid to the bank in redemption of the land from the mortgage, but the case was remanded with directions to permit the parties to adduce further testimony. Neither the trial court nor this court had made any finding as to the amount of the debt. We think the court was correct, therefore, in directing the master to hear testimony and ascertain! the amount of the total indebtedness of Brewer to the bank at the time of the execution of the deed in controversy.

It is contended that the court erred in failing to allow rents on the land for certain years, but the answer to this contention is that the proof is not satisfactory that the rents were paid as credits on the debt. Brewer continued to do business with the bank and incurred further indebtedness and gave a chattel mortgage on his crops. The crops'were turned over to the bank, but it Was not shown that the. proceeds should properly have been credited on the old indebtedness, rather than on the debt for current advances.

It is alleged also that, as Brewer was entitled to credit for the amount of the value of the land wrongfully sold to Yancey, the court failed to allow sufficient credit. In other words, there is a controversy as to the market value of the land, and the contention is that the land was worth more than the bank received from Yancey, and that therefore Brewer is entitled to credit for this excess. There was a sharp conflict in the testimonAr as to the market value of this land. The witnesses were very numerous, and they differed widely. It is unnecessary to set forth the testimony of the various witnesses, as it is sufficient ‘to say that the finding of the chancellor was not against the preponderance of tlie evidence. In fact, it appears to us from consideration of the testimony that there was a decided preponderance in favor of the chancellor’s finding on that issue.

There are other assignments in regard to items of the account, but we answer the contention in regard to these items by saying that we have considered them fully and are of the opinion that, upon every issue presented, the evidence supports the finding of the chancellor — at least that the finding is not against the preponderance of the evidence.

Decree affirmed.


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    Missouri Pacific Railroad Company v. Hendrix.
    Opinion delivered November 16, 1925.
    1. Removal op cause — employers’ liability act. — Under the Judicial Code, § 28, providing that no case under the Employers’ Liability Act ¡brought in a State court of competent jurisdiction ' shall be removed to any court of the United States because of diversity of citizenship, a railroad company, sued for an injury to an employee alleged to have occurred in interstate commerce, cannot, on motion i» remove the case to the Federal Court, raise an issue as to the injury having occurred in interstate commerce, as the character of plaintiff’s action must he tested by the allegations of the complaint.
    2. Master and servant — negligence and proximate cause — sufficiency of evidence. — Evidence held sufficient to show that defendant railroad company was negligent in permitting a shaker bar in a locomotive engine to get out of repair, and that such negligence was the proximate cause of injury to plaintiff’s hand when attempting to shake fire grates.
    3. Master and servant — jury questions. — Whether a shaker bar on a locomotive engine is an appliance so simple in its appearance and use that there was no duty of inspection on the part of the railroad company, and whether an employee in using it assumed the risk or was negligent in using the shaker bar, held for the jury.
    4. Master and servant — assumed risk — contributory negligence. —An employee who had no opportunity to inspect tools furnished and no choice as to what tools he would use was not chargeable with assumed risk or contributory negligence, unless danger from the use of a particular tool furnished was so oibvious that a naan of ordinary prudence would not use it.
    5. Trial — denial of request for inspection. — In an action for injury to an employee’s hand, sustained in attempting to shake clinkers and ashes from the firebox of an engine, denial of defendant’s request that the jury inspect a similar engine was not error, there being no statutory authority for such inspection, as Crawford & Moses’ Dig., §1295, relates to inspection of real property only.
    6. Appeal and error — conclusiveness of verdict. — In an action for personal injuries, the element of pain and suffering is one which must be left largely to the sound judgment of the jury; and their conclusion as to the proper amount should not be disturbed unless the amount is clearly excessive.
    7. Damages — award—excessive amount. — Where an injury to an employee’s hand caused infection, incapacitating plaintiff from performing manual labor over a period of almost two years and up to the time of trial and causing great pain, an award of $7,500 held not excessive.
    Appeal from Lawrence Circnit Court, Eastern District; Dene II. Coleman, Judge;
    affirmed.

      Thomas B. Pryor and H. L. Ponder, for appellant.

      W. P. Smith, Pace & Davis and Tom W. Campbell, for appellee.
   McCulloch, C. J.

Tlie plaintiff, Charles Hendrix, received personal injuries while working in the service of the defendant, and he instituted this suit to recover compensation, alleging that his injuries resulted from negligence on the part of defendant in failing to exercise ordinary care to furnish reasonably safe appliances with which he was required to work. It was alleged in the complaint that the defendant was an interstate carrier of freight and passengers, that the locomotive engine on which plaintiff was working at the time he received his injuries was in use in interstate commerce, and the right of action was predicated on the federal employers ’ liability act.

Defendant, in apt time, filed its application and bond for removal of the cause to the federal court on the ground of diversity of citizenship, but the court denied the petition, whereupon defendant filed its answer denying the allegations of negligence and pleading contributory negligence and assumed risk on the part of the plaintiff, and the cause went to trial before a jury. The trial resulted in a verdict in favor of plaintiff, assessing damages in the sum of $7,500, from which judgment the defendant has duly prosecuted this appeal.

It is first contended that the judgment should be reversed because of the court’s ruling in denying the petition for removal to the federal court. The federal statute (Hopkins’ Judicial Code, § 28) expressly provides that no case under the employers’ liability act brought in a State court of competent jurisdiction shall be removed to any court of the United States because of diversity of citizenship. This provision of the statute has been upheld by the Supreme Court of the United States in Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599. The defendant, in its petition for removal; traverses the allegations in the complaint with respect to plaintiff’s injury having occurred while engaged in interstate commerce, and it is contended now by counsel that this raised an issue of fact which should have been tried by the United States District Court on a motion to remand. This argument is unsound for the reason that the character of the plaintiff’s cause of action must be tested by the allegations of the complaiut, and no issue of facts can be raised concerning the same except appropriate allegations of fraud on the part of plaintiff’ in misjoining defendants in order to defeat the right of the petitioner to remove to the federal court because of diversity of citizenship. In other words, the defendant had no right to try out the issues arising on the merits of the case for the purpose of obtaining a removal of the cause. Southern Ry. Co. v. Lloyd, 239 U. S. 496; Frazier v. Hines, 260 Fed. 874.

It is next contended that the evidence is not sufficient to sustain the verdict, in that it fails to establish negligence ou the part of the defendant, and, on the contrary, shows that the plaintiff assumed the risk and was guilty of contributory negligence which barred Ms right of recovery. Plaintiff, at the time of his injury, was regularly employed by defendant as engine watchman at the roundhouse -at Hoxie, Arkansas, and on the night of June 16,1922, he was sent by his foreman to take charge of an engine near Neelyville, Missouri. The engine in question was pulling a passenger train en roiote to St. Louis, and it was halted behind a wrecked freight train, and had to remain there all night. Plaintiff, pursuant to the orders of his foreman, went to Neelyville on another train and took charge of the engine to watch it during the night, and the engineer and fireman left the engine as soon as plaintiff reached it. Plaintiff received injury to one of his hands in shaking down the cinders and ashes in the engine in order to keep the fire going, and it was a part of his duty to do that. It is explained in the testimony that the fire grates are in four sections, and that each of the sections has to be shaken in order to relieve the congestion of clinkers and ashes. There is attached to each of the sections an extension called a brake staff, which extends up through the floor of the cab about ten inches, and an iron bar, called the shaker-bar, is used by attaching it to the brake-staff in order to move the grate back and forth when shaking down its contents. The allegations of negligence relate to the condition of the shaker-bar, it being alleged that it had become worn and cracked so that when in use it slipped and became disconnected from the brake-staff.

Plaintiff testified that when it became necessary for him to shake down the ashes and clinkers he attached the shaker-bar, which was four or five feet long and about two inches wide, to one of the brake-staffs and proceeded to move it, when, on account of the defective condition, it became suddenly disconnected from the staff, and his hand was thrown against the boiler and mashed. He testified that afterwards he examined the end of the shaker-bar and found that the cuff on the end of it, which served the purpose of slipping clown over the end of the staff and holding the bar in place, was worn on the underside and cracked.

According to the evidence, there was in use on some of the engines of the defendant a shaker-bar with a pin attached thereto by a chain, and there was a hole through the cuff of the bar and a corresponding one on the brake-staff, so that the pin could be inserted and the bar held secure on the staff. This was, according to the testimony, rather a recent appliance, and was only in use on some of the engines. It was not in use on the engine of which plaintiff was placed in charge. There was an allegation of negligence in failing to have any pin on the shaker-bar, but we need not determine whether or not this constituted negligence, for we are of the opinion that the evidence was sufficient to show that defendant was guilty of negligence in permitting the shaker-bar to get out of repair. There is a conflict in the testimony as to whether the worn condition of the shaker-bar was the cause of its slipping off the staff. The witness introduced by appellant testified that the more the bar was worn the further down it would work on the staff, thereby preventing slipping, but according to the testimony of plaintiff the worn and cracked condition of the shaker-bar was the cause of it becoming disconnected with the staff. This conflict must be treated as settled by the verdict of the jury, and it is sufficient to show that the defect was the proximate cause of the injury.

Counsel for defendant invoke what is generally referred to las the simple tool doctrine, and contend that the shaker-bar was an appliance or tool so simple in its appearance and use that there was no duty of inspection on the part of the master. We do not agree with counsel that the so-called doctrine, to whatever extent it has generally been applied, has any application to the facts of the present case. C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Wisconsin-Arkansas Lbr. Co. v. Ashley, 158 Ark. 379. It was a question for the jury to determine whether the danger arising from the defective condition of the appliance, which formed a part of a somewhat complex equipment, was such that it was reasonably to be anticipated that injury might result. It is not for the court to say that the simplicity of the appliance was so obvious that an inspection for defects, was unnecessary. Nor can it be said as a matter of law that plaintiff either assumed the risk or was guilty of contributory negligence.

Plaintiff testified that there was no light on the engine, and that, though he could have procured his torchlight and examined the bar before using it, he did not consider it necessary to do so. He testified further that the injury occurred when he attempted to shake the first one of the grates. The evidence was sufficient to warrant a finding that there was a discoverable defect in the shaker-bar — a defect which could have been discovered upon reasonable inspection — and the duty of inspection rested upon the master, not upon the servant. The standard of care in discovering defects is different as to master and servant, and it cannot be said that the plaintiff was guilty of any negligence or that he assumed the risk in failing to make such an inspection as was sufficient to discover the defects, whereas the evidence warranted a finding that there was a failure to make such an inspection as the master should have made.

In testing the duty of the plaintiff as to his use of the shaker-bar in performing his labor, the fact must not be overlooked that he was out on the road with an engine and not only had no reasonable opportunity to inspect the tools furnished him, but he had no choice as to what tools he would use. Under those circumstances he is not chargeable with the assumption of risk or contributory negligence unless the danger from the use of the particular tool was so obvious that a man of ordinary prudence would not use it. Fordyce v. Edwards, 60 Ark. 438; L. J. Smith Construction Co. v. Tate, 151 Ark. 278.

There are numerous assignments of error with respect to refusals to give instructions requested by defendant’s counsel. There is no objection made to the charge of the court upon its own motion and on requests for instructions made by the plaintiff. The instructions of .the court were full and complete on all branches of the case and embraced several instructions requested by the defendant.. Most of- the refused .instructions were in conflict with settled principles of the law, and the court’s ruling was correct. Others were fully covered by the court’s charge. We find it unnecessary to set out these instructions in detail.

The defendant introduced as a witness Tom Harris, the chief foreman of its shops in North Little Eock, and in connection with his testimony exhibited to the jury the grates, levers, staffs and handle-bar ordinarily in use on the engines.. Harris testified with respect thereto and explained to the jury the use of each part. These appliances were not from the engine on which plaintiff was working when injured, but the exhibits were merely used as illustrations to the jury in explanation of the method in which the work in which plaintiff was engaged was ordinarily performed. At the conclusion of Harris ’ testimony the defendant’s counsel asked that the court miake an order directing the sheriff to take the jury out to-inspect an engine on one of the tracks in Walnut Eidge, where the case was being tried. Plaintiff’s counsel then inquired whether or not the engine in question was the one on which plaintiff was hurt, and counsel replied that it was not the same engine, but that it contained the same kind of equipment. The court denied the request, and this ruling is assigned as error. We do not think, however, that there was any error committed. There is no. statute providing for such an inspection, as the only statute on that subject (Crawford & Moses’ Digest, § 1293) relates to inspection of real property by a trial jury in a law case. There was certainly no abuse of discretion by the court in refusing this request. It is unnecessary for us to decide whether or not it would have been a proper exercise of discretion to permit it to be done. It was certainly unnecessary to do so, and there was no prejudice, in the refusal because the equipment had been fully explained and similar equipment had been exhibited to. the jury.-

Finally, it is contended that the verdict is excessive. According to the testimony in the case, the injury to plaintiff’s hand was thought at first to be slight, and the next morning he reported to this foreman that his hand was slightly hurt, and he had it wrapped up at that time. Shortly afterwards it became infected, and according to the testimony the injury was very painful and continued to be so up to the time of the trial, and the condition of plaintiff’s hand was such that he was totally incapacitated from performing manual labor. He worked for a short .time in the service of defendant, but soon quit that work, and it was difficult for him to find employment. The injury occurred on June 16, 1922, and the serious condition of plaintiff’s injury continued up to the time of the trial in March, 1924. Plaintiff testified that his hand was in worse condition from March, 1923, up to the time he went to' the hospital in September, 1923, but began to get better then. Plaintiff was in vigorous health up to the time of his injury, and was earning more than four dollars a day, with steady employment, and on account of the injury he was totally disabled. He testified that he was only able to earn thirty or thirty-five dollars during the two years from the date of the injury up to the time of the trial, 'and that he was still under this disability. His hand in the damaged condition was exhibited to the jury, and was closely observed by the members of the jury. Considering plaintiff’s loss of earning capacity and the pain resulting from the injury, extending- over so long a period of time, we cannot say the award of damages was excessive. According to the testimony, the loss of earnings up to the time of the trial amounted to about $2,500, and the testimony reasonably warranted .the inference that the loss would continue for a considerable length of time thereafter, though the injury was not permanent. The element of pain and suffering is one which must be left largely to the sound judgment of a- trial jury, and the conclusion reached by the jury as to' the proper amount should not be disturbed unless the award is clearly excessive. Considering the testimony as a whole, we are unable to say that the award is excessive.

Judgment affirmed.