author: Butler, J.

text:
    Berger v. Fuller.
    Opinion delivered November 11, 1929.

      Chas. D. Frierson, for appellant.

      Caraway, Baker & Gautney, for appellee.
   Butler, J.

Henry Fuller and Lizzie Fuller, husband and wife, being indebted to the appellant, Alex Berger, executed several promissory notes evidencing the indebtedness, and, to secure the same, executed and delivered to Berger a mortgage on forty acres of land in Craighead County. Afterwards Henry Fuller and one Reynolds executed to appellant a promissory note for $240, the same being for the purchase price of certain timber, vendor’s lien to which was retained by Berger to secure the payment of the note. At about the same time Fuller was having his transactions with the appellant he was also doing business with the American Trust Company, and from time to time gave them notes in small amounts, which were secured by mortgage on eighty acres of land in Craighead County, the homestead of Henry and Lizzie Fuller. This eighty acres of land included no part of the forty-acre tract mortgaged 'by the Fullers to the appellant, Berger. Later on the Fullers executed another note to the American Trust Company for $560, which was merely to consolidate and be in lieu of the notes before then executed to the trust company. This last note was secured by the same eighty acres of land mortgaged to the trust company, and was executed on a collateral note form.

The Fullers were negroes. They made payments to the trust company which reduced their indebtedness to it on the notes to the sum of $361, to which was .added certain taxes paid by the trust company for Fuller. Alex Berger purchased this note from the trust company, and procured an assignment of it and the mortgage securities to himself. He then brought this suit, asking for foreclosure of the mortgage given by the Fullers to him and of the vendor’s lien contained in the timber contract, and also for foreclosure of the mortgage given by the Fullers to the American Trust Company. In his suit he prayed for foreclosure on the mortgage purchased by him from the trust company for not only the debt of Fuller and wife to the trust company, but also for all other debts due Berger arising out of other and separate transactions, contending that he was entitled ta this relief, 'because of a’ stipulation in the mortgage to the American Trust Company, which is as follows:

“It is also agreed that this debt herein secured shall include not only the notes above recited, but also whatever sums may be due from mortgagors to mortgagee at the time of foreclosing this mortgage, whether such sums be for payment of taxes on these lands, for release of liens or incumbrances, for fire insurance premiums, for protecting the title and possession of the premises, for the debts not incurred in respect of this land, such as personal account, or unsecured note, or a judgment or any indebtedness of whatsoever sort or nature that may be due from mortgagors to mortgagee at the time of foreclosing this mortgage,” and because of an identical clause contained in the mortgage from the Fullers to Berger upon the separate forty acres of land.

The appellees admitted the execution of the various notes and mortgages and the balances due as claimed by Berger, and admitted his right, as assignee of the American Trust 'Company, to the debt due by them to that company, and the right to have the mortgage to said trust company foreclosed. They denied the right of Berger to foreclose said mortgagee for any other debts than those owing by Fuller to the American Trust Company at the date of the assignment of the note and mortgage by it to the appellant, Berger. This issue was submitted to the court, which, after making’ the findings about which there is no dispute, concluded as follows:

“And upon the note above set out, signed by Henry Fuller and Lizzie Fuller, to the American Trust Company, and by it indorsed to the plaintiff, Alex Berger, the court finds that Alex Berger is entitled to the balance of principal and interest due upon the note, together with interest according to the terms thereof, and also to the taxes and special assessments above recited, which were paid upon the land embraced in the mortgage to American Trust Company; and. that, default having been made in said -mortgage, the said Alex Berger is entitled to a foreclosure of the mortgage executed to American Trust Company by the said Henry Fuller and Lizzie Fuller, et cetera * * *. But the court finds that, as to any and all other indebtedness due to the said Alex Berger by thg said Henry Fuller and Lizzie Fuller, there is no lien upon the land described in the said mortgage from Henry and Lizzie Fuller to- the said American Trust Company, and that the first series of notes above set out as due originally to the said Alex Berger cannot be declared liens on the land described in the'mortgage to American Trust Company, but that only such debts as become due originally to the- American Trust Company are collectable as against the lands in the mortgage to the American Trust Company, and that the said Berger, by the purchase of said mortgage and notes, did not acquire the right to tack his other indebtedness onto the indebtedness of the American Trust Company which he purchased, nor to make the same a lien against the lands described in said mortgage to American Trust Company, and that portion of the complaint is dismissed for want of equity, and the finding is in favor of the defendants in that regard only, but otherwise for the plaintiff.”

From that part of the decree hereinbefore recited Berger prosecutes this appeal. He contends that he is entitled to recover his entire indebtedness, of whatsoever nature, due from Fuller, and, under the mortgage which appellant purchased from the American Trust Company, is entitled to foreclose for the sum of all debts of whatsoever nature. He argues that the language of the mortgage is sufficiently broad to support this contention, and cites the case of Hollan v. American Bank of Commerce & Trust Co., 168 Ark. 939, 272 S. W. 654, to uphold this view.

In that case- Hollan executed a mortgage to the bank to secure' the payment of two notes, each for $2,000, payable one year after dat§, with interest. The mortgage contained the following clause: ‘ ‘ This deed of trust shall be security for any other indebtedness of whatever kind or character that may be owing by grantor to said American Bank of -Commerce & Trust -Company up to the time of foreclosure of this deed of trust, whether then matured or not. ” Hollan became further indebted to the appellee as indorser on two negotiable promissory notes executed by one Williams to him, and by Mm sold and indorsed over to the appellee. Liability on these two notes was established by a judgment rendered in favor of the bank, and subsequently thereto the bank brought its action to foreclose the mortgage both as to the notes specifically mentioned therein, and also for the indebtedness represented by the Williams, notes and the judgment therefor. The court said: “The only point at issue in the case was whether or not the indebtedness described above, in addition to the two notes specifically mentioned in the mortgages, fell within the terms of the mortgage and were secured thereby. * * * Each instrument, of course, must be interpreted according to its particular language * * *. We must interpret the language of this mortgage to mean just what it says — that it secures any indebtedness incurred up to the time of the foreclosure.” The court then decided that all of the indebtedness before mentioned was included in the mortgage, and in concluding its opinion the court distinguished the phraseology of the mortgage in the case then before it from that in the case of Lightle v. Rotenberry, 166 Ark. 337, 266 S. W. 297, saying: “The language in the present case is far broader, for it reads, ‘other indebtedness of whatever kind or character that may be owing.’ It is difficult to imagine how more appropriate language could have been used by the parties with the intention of accurately describing the particular kind of indebtedness involved in the present case. It is clear that the parties meant to include every kind of indebtedness or liability of appellants to the appellee, whether if arose directly or indirectly. The chancery court was therefore correct in holding that the mortgage of appellants to appellee embraced and secured, as against the appellants as mortgagors, the additional indebtedness heretofore' described.”

It will be observed that in this case and in the case of Myers v. Chain Lumber Co., 178 Ark. 174, 10 S. W. (2d) 20, relied upon, the mortgages construed were made to secure indebtedness due by the mortgager to the mortgagee, and it was in none of these cases held that indebtedness secured by another and different mortgage upon other and different property could be embraced and secured in another and independent mortgage. Nor did the court in the case of Hollan v. American Bank of Commerce & Trust Company, supra, so hold. The language in the conclusion of the decision above quoted was merely illustrative in its character, and in no wise essential to a decision of the question before the court.

The language of the mortgage under consideration— “or any indebtedness of whatsoever sort or nature that may be due from mortgagors to mortgagee at the time of foreclosing this mortgage” — is clearly referable to the character of indebtedness named in the language of the clause preceding, and cannot be extended to include the class of indebtedness other than those specifically mentioned. This language, as we construe it, has reference only to the debts due primarily from the mortgagor to the mortgagee, and does not include debts which might be purchased from third parties. Mortgages of this character have been denominated ‘ ‘ anaconda mortgages,” and are well named thus, as by their broad and general terms they enwrap the unsuspecting debtor in the folds of indebtedness embraced and secured in the mortgage which he did not contemplate, and to extend them further than has already been done would, in our opinion, be dangerous and unwise; for, if this should be done, some one who might have been engaged extensively in business, and by reason of financial reverses become largely indebted, and who had selected from his property a small portion upon which he and his family might dwell as their homestead, and from that vantage point begin the battle of life anew, might be deprived of it by grasping and unconscionable creditors. He might apply to some one for a loan of a small sum in order to enable him to make his crop, only such sum as was necessary for his direst necessities, and, to secure it, place a mortgage on his home. The mortgagee might then buy up for some small price the debts before then incurred by his mortgagor, and when, at the end of the year, that mortgagor should have brought to him the money he had borrowed, might find that his home was incumbered by all these outstanding debts, and the last refuge of himself and family be swept away. No such principle can be implied from the language of the learned justice in Hollan v. American- Bank of Commerce & Trust Co., supra, nor did he intend to lay down any such rule.

We hold that the decree of the chancellor in the.instant case is supported on every principle of reason and equity, and is correct, and that a mortgagee buying up claims held against his mortgagor by third persons cannot have them embraced in, and secured by, his mortgage, or included in a foreclosure decree, unless the language of the instrument provides in the clearest and most unmistakable terms for their inclusion, and that such stipulation was expressly called to the mortgagor’s attention, and, after having fully understood the same, he assented thereto. 20 Am. & Eng. Enc. 964, and cases cited; Provident Mutual Bldg. & Loan Assn. v. Shaffer, 2 Cal. App. 216, 83 Pac. 274; Perrin v. Kellog, 38 Mich. 720.

The decree is affirmed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    School District No. 38 v. Board of Education of Clay County.
    Opinion delivered November 18, 1929.

      Hunter ■<& Hunter and Holifield S Upton, for appellants.

      Arthur Sneed, for appellees.
   Hart, C. J.,

(after stating the facts). It appears from the record that Piggott Special School District No. 52 was created by special act of the Legislature. Subsequently, another Legislature passed act 48, amending the original act under which the district was created. Special Acts of 1923, p. 98. That special act gives the county board of education of Clay County the authority to make changes in the boundary line of the Special School District of Piggott under certain conditions, which are recited in the act. It is not necessary to set out in detail the provisions olf special act No. 48, because the record shows that they were carried out in annexing the territory from Common School District No. 38 to the Pigg'ott Special School District.

It is earnestly insisted, however, that the special act has been repealed by implication by act 156 of the act of 1927, amending § 8823 of Crawford & Moses’ Digest. We cannot agree with counsel in this contention. There is no irreconcilable repugnancy between the special act in question and the later general act on the same subject. The general clause in the later act, repealing all laws in conflict with it, does not operate to repeal any law not in conflict with it, and especially is this true where there is a prior special act on the same subject which is not irreconcilably inconsistent or repugnant to the general act. Jones v. Oldham, 109 Ark. 24, 158 S. W. 1075.

In that case, it was held that the general act passed by the Legislature of 1913, creating the Department of State Lands, Highways and Improvements, does not repeal a special act of-the same Legislature creating certain road improvement districts in Lonoke and Prairie counties. See too the case of Baugher v. Rudd, 53 Ark. 417, 14 S. W. 623, where it was held that the road law of 1871 for an appeal from a final decision of the county court opening a county road is not repealed by the general act, although of later date, regulating appeals from final orders and judgments of the county court. The reason is that the more specific provisions of the specific act controls the terms of the general act. The two acts are interpreted as operating together, the specific provisions furnishing exemptions and qualifications to the general act. Again, in State v. Adams, 142 Ark. 411, 218 S. W. 845, it was held that a special act of 1919, regulating the taking of fish in certain lakes in Chicot County was not repealed by the general act passed at the same session of the Legislature amending the law creating a game and fish commission. Other oases applying the rule according to the particular facts of each case are Martels v. Wyss, 123 Ark. 184, 184 S. W. 845; Ward v. Wilson, 127 Ark. 266, 191 S. W. 917; Bartlett v. Willis, 147 Ark. 374, 227 S. W. 596; and Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550.

The Supreme Court of the United States has held that the presumption against implied repeals has peculiar and special force when the conflicting provisions which are thought to work .a repeal are contained in a local or special act and a later general act. Petri v. Creelman Lumber Co., 199 U. S. 487, 26 S. Ct. 133. See also Washington v. Miller, 235 U. S. 422, 35 S. Ct. 179.

Here there is no irreconcilable inconsistency or repugnancy between the two acts, and the changes in the boundary lines of the Piggott Special School District No. 52 can be carried on under the provisions of the special act without the necessity of applying any of the provisions of the general law except those expressly provided for in the special act for holding the election.

"What we have said with regard to the provisions as to notice applies with equal force to the other provisions of the general school act with regard to the reducing the number of pupils in Common School District No. 38 to less than thirty-five, as provided in the general acts on the subject. In this connection, however, we desire to call attention to the decision in the case of Chicago Title & Trust Co. v. Hagler Special School District, 178 Ark. 443, 12 S. W. (2d) 881, which holds that, while the Legislature has full and complete power to .create and change the boundaries of school districts, it is a violation of our own Constitution, as well as the Constitution of the United States, to pass a law impairing the obligation of a contract. The record in this case does not show that any existing contract of Common School District No. 38 will be impaired by the act of the county board oif education under consideration, and we merely refer to this in a cautionary way. To the same affect see Ancient Order United Workmen v. Paragould Special School District; 143 Ark. 498, 222 S. W. 368.

There is no merit whatever in the allegation of the complaint that the same person is a director of Special School District No. 52, and is also a member of the county board of education. In any sort of consideration of the matter he would be a de facto member of the county board of education, and his acts as" such would be legal and binding.

Therefore the judgment of the circuit court will be affirmed.


author: Hart, C. J.

text:
    Denham v. State.
    Opinion delivered November 18, 1929.

      Wm. H. Glover, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Hart, C. J.

Brady Denbam prosecutes this appeal to reverse a judgment of the circuit court revoking a suspension of sentence against him for unlawfully selling intoxicating liquors. On the 17th day of January, 1927, at a regular term of the Hot Spring Circuit Court, Brady Denham entered a plea of guilty to the crime of selling intoxicating liquors. The court, upon the request of the prosecuting attorney, and because it appeared that the defendant had already served seven months in the Federal prison for the same offense, granted him a suspension of sentence conditioned on his making a new bail bond in the sum of $500, and upon good behavior. It was, therefore, ordered and adjudged that the suspension be granted upon the conditions above set forth.

On the 30th day of July, 1929, at a regular term of court, upon motion of the prosecuting attorney and after hearing the evidence of witnesses, the court found that the suspension of sentence should be revoked, and an order to that effect was entered of record.

Upon a hearing of the motion to revoke the suspended sentence, two revenue officers of the United States and a deputy sheriff of Hot Spring County were introduced as witnesses 'by the State. According to their evidence, they went to the house where Brady Denham and Clyde Otts were living in Hot Spring County, and looked around the, woods trying to find signs of a still being operated. They finally came to a spring near the house, and, at a little distance from it, they found a still set whichj from the circumstances around it and from their experience as revenue officers, they thought had been operated a day or two before. The spring near which it was situated had plain tracks from there to the house where Brady Denham and Clyde Otts lived. From the appearance of things around there, Denham and Otts got their drinking and using water from the spring, and also washed their clothes there. In a little out-house, which was locked up, they found two barrels of mash and a cap and stillworm. The barrels of mash had been put down into a hole in the ground, and then covered up. They waited there for a while and saw Brady Denham and Clyde Otts coming towards the house. When they arrested them, Denham told Otts that this would mean Tucker Farm (meaning the penitentiary farm) for them and also exclaimed, “Oh, my God! what will become of my wife and children now?” WTben the officers first saw Denham and Otts coming towards them, they turned around and started to go back in the direction from which they came; but the officers stopped them and then arrested them.

According to the testimony of Clyde Otts, the still belonged to him, and Denham was not in any way interested in its ownership or operation. He said that he had only made one run. with the still, and that Denham had nothing to do with it.

It was first contended that, because more than a year had elapsed between the date of the suspension of sentence by the circuit court and the order of that court revoking the suspension of sentence, that the order of revocation was void. This is Ibased on the fact that, under § 6161 of Crawford & Moses’ Digest, any person convicted of selling* intoxicating* liquors shall be guilty of a felony and imprisoned in the State Penitentiary for one year.

In Davis v. State, 169 Ark. 932, 277 S. W. 5, this court held that the circuit court had no authority to suspend execution of sentence indefinitely in the absence of a statute conferring it. It was held that the act conferring the authority upon circuit courts by the Legislature of 1923, did not have the effect to stay the execution of sentences already pronounced. In that case it was also said that the defendant, while at large under void orders of the circuit court to which he had assented, was in the same situation that he would have been had he escaped from custody. Therefore, the court said that the sentence of imprisonment was not satisfied by the lapse of time after it was pronounced, but could only be satisfied by suffering the imprisonment imposed by the sentence.

The Legislature of 1923 passed an act authorizing the circuit courts to suspend sentences under certain conditions, and also giving them the power to revoke the suspension of sentences for certain reasons. Acts of 1923, p. 40, and Castle’s Supplement to Crawford & Moses’ Digest, §■§ 3229a and 3229b. The first section provides that the circuit court shall have authority, if it shall deem it best for the defendant and no harm to society, to postpone the pronouncement of final sentence and judgment upon such conditions as’ it shall deem proper and reasonable as to probation of the person convicted. The second section gives the circuit court the power to revoke the suspension, and postponement of sentence, and to pronounce, sentence and enter final judgment in each cause whenever that course shall be deemed for the best interests of society and such convicted person. The statute itself does not confine the time within which the court may revoke the suspension of sentence.

In Ketchum v. Vansickle, 171 Ark. 784, 286 S. W. 948, the court held that, where the circuit court, without authority, suspended the execution of a sentence for one year in the penitentiary, to which suspension the defendant consented, the court had authority, more than a year later, to direct that the sentence be enforced. Again, in Stocks v. State, 171 Ark. 835, 286 S. W. 975, it was held that, where a sentence of imprisonment was suspended in 1910 with the defendant’s consent, and was imposed in 1926, the sentence was not barred by the statute of limitations. The court recognized the rule laid down in the *Davis case that a sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by the actual suffering of the sentence imposed by it. The reason is that the time during which a sentence may be carried into execution is not provided by statute, and forms no part of the judgment of the court. That rule applies here in the absence of a statute limiting the time within which the court may revoke the suspended sentence.

In the case at bar, the sentence was suspended during good behavior. It will be remembered that the statute gives the circuit court the power to postpone final sentence and judgment upon such condition as it shall deem proper and reasonable as to probation of the convicted person. The court had the right to impose this condition.

In Huyser v. Commonwealth, 116 Ky. 410, 76 S. W. 174, it was contended that so much otf the liquor statute as empowered the court, after two convictions for a violation of its provisions, to require of the convicted person a bond for his good behavior, was void for uncertainty because it failed to indicate in express language what was meant by the words "good behavior.” The Court of Appeals of Kentucky held against that contention, and said the defendant was placed in a state of trial with respect to the subject-matter, of the statute, and that he must for a given time so conduct himself as to be amenable to the statute. The court further said that the defendant must keep himself within the letter and spirit of the statute by refraining from any further violation of its provisions during- the period of probation.

In State v. Greer, 173 N. C. 759, 92 S. E. 147, the court said that, when judgment is suspended in a criminal action upon good behavior or other conditions, the proceedings to ascertain whether the terms have been complied with are addressed to the reasonable discretion of the judge of the court, and do not come within a .jury’s province.

This would also result from our own decisions holding- that a statute authorizing and empowering circuit courts to suspend sentences under certain conditions to be constitutional. It would seem that the language of the statute authorizing the suspension of the sentence and also giving- the circuit judge the power to revoke the suspension of the sentence when that course shall be deemed for the best interest of society and for the convicted person, expressly conferred upon the circuit court the power to pass upon the question without the aid of a jury.

It cannot be said that the finding of the circuit court that the suspension of the sentence should be revoked was either unreasonable in itself or without evidence to support it. According- to the testimony of the revenue officers, the still was found about 150 yards away from the house in which the defendant lived. It was close to a spring where he and another person who lived in the house with him got water for family use, and where their family washing was done. The cap and worm to the still were found in an outhouse nearby, which was locked up, and two barrels of masb ready for distillation were also buried in the ground in the outhouse. When be was arrested, Denham stated to Otts that this meant the Tucker Farm (the penitentiary farm) for them. This was in the nature of a confession, and the circumstances surrounding- the whole transaction showed that the defendant realized that he was at least guilty of having a still in his possession. This was a kindred crime to the one he had been convicted of, and warranted the court in setting aside or revoking the suspension of sentence.

Therefore, the judgment will he affirmed.


text:
    Baker v. Hill.
    Opinion delivered November 18, 1929.

      B. E. Wiley and Jolm F. Park, for appellant.

      Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellees.
   Hart, C. J.

This is an appeal by a taxpayer from a decree of the chancery court sustaining a demurrer to and dismissing for want of equity a complaint filed by him seeking to restrain the members of the Arkansas Construction Commission from carrying out the provisions of an act of the Legislature of 1929 to provide adequate buildings for the Hospital for Nervous Diseases and for the Tuberculosis Sanatorium and the issuance of State bonds therefor.

The Legislature of 1929 first passed an act to provide for the levying and collecting of a tax on incomes, which was to be known as the Income Tax Act of 1929. The same Legislature subsequently created the Arkansas Construction Commission for the purpose of constructing and equipping adequate buildings for the Hospital for Nervous Diseases, and buildings for the Tuberculosis Sanatorium. The first act referred to is No. 118, and was approved March 9, 1929. The later act is No. .180, and was approved March 22, 1929. The Income Tax Act of 1929 contains 44 sections, and its constitutionality was sustained in Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000.

The constitutionality of act 180 is assailed in the case at bar. Section 9 of the act provides that, for carrying out the purposes of the act, the State shall borrow not exceeding the aggregate sum of $3,250,000, and shall issue the bonds of the State for the amount so borrowed, provided not more than $750,000 shall be issued in 1929. Section 10 provides that the bonds shall be known as State Construction Bonds, and contains regulations for their issue. Section 11 provides for the annual payment of the bonds from the revenue from act 118, Income Tax Act of 1929, and that the remainder shall go to reduce the State property tax under the regulations contained in the section. Section 12 defines the nature and terms of the construction bonds. It also provides that the bonds shall be negotiable paper, notwithstanding they are payable out of a special fund. Section 13 provides for the sale of the bonds, and the prices thereof. Section 14 provides for the registration of the bonds in the office of the State Treasurer. Section 15 provides for an appropriation for two years of a designated sum for construction and equipment for the State Hospital for Nervous Diseases. Section 16 contains a similar provision for the State Tuberculosis Sanatorium. Section 20 contains an emergency clause which provides that: “It is found as a fact that the State Hospital for Nervous Diseases is not adequate to take care of the patients now in the institution; the buildings at the Tuberculosis Sanatorium are insufficient to properly house and otherwise take care of those who are entitled to be admitted to that institution; the foregoing needs are so pressing- that delay in responding to them may result in loss of life, prolonged sickness, and impairment of the efficiency of these institutions; and that the immediate operation of this act is essential for the protection of the wards of the State. ’ ’ Acts of 1929, vol. 2, p. 884.

In Stanley v. Gates, 179 Art. 886, 19 (2d) S. W. 1000, the emergency clause was held valid as to- the Income Tax Act of 1929, and the court said that the act took effect from and after its approval by the Governor, which was March 9,1929. The court held that the action of the Legislature in declaring when an emergency exists, under Constitutional Amendment 13, is supreme, and that, if it states facts constituting an emergency so that its action cannot be said to be arbitrary, courts cannot say that it has not performed its constitutional duty, even though they might disagree with the Legislature as to the sufficiency of declared facts to constitute a sufficient reason for immediate action. That decision controls here, and it may 'be said the emergency in the act under consideration is stated in a plain and concise as well as comprehensive manner; therefore we hold that the act took effect March 22, 1929, the date of its approval.

The principal ground relied upon for a reversal of the decree is that the act violates § 8, art. 16, of our Constitution, which reads as follows:

“The General Assembly shall not have power to levy State taxes for any one year to exceed in the aggregate one per cent, of the assessed valuation of the property of the State for that year. ’ ’

The basis o-f the contention is that, -under the allegations of the complaint, which are admitted to be true by the demurrer, our severance tax, cigar and cigarette stamp tax, the inheritance tax, and the income tax of 1929, when added to the general property tax for State purposes of 8.7 mills on the dollar for each dollar of the assessed value of property in the State for taxation, exceeds in the aggregate one per cent, of all the assessed valuation of the property of the State for one year. We do not agree with counsel for appellant in the construction they have placed on this section of our Constitution. The provisions of § 8, art. 16, containing a restriction or limitation as to the amount or rate of taxation, refer exclusively to a property tax, but there is nothing in the section which prevents the Legislature from selecting other subjects of taxation and prescribing the amount or rate of tax that it may see fit to levy thereon. According to our construction of our Constitution, other sources of revenue for State purposes than property tax may be resorted to. If the Legislature has power to raise revenue for State purposes by a property tax, it may also levy a tax for that purpose upon any other legitimate subject of taxation. There is a marked distinction in our Constitution as recognized in our adjudicated cases, between property and other subjects of taxation. The phrase, “subjects of taxation,” embraces all property as such, and all other items on which a tax rate may be laid as a source of revenue for the support of the State Government. Since the Constitution contains no restriction on the power of the Legislature to- levy taxes except as to property as such, the Legislature has full and complete power in the levy of taxes for State purposes as to-other recognized subjects of taxation. The -section under consideration is a part of article 16 of the Constitution on the subject of “Finance and Taxation.” Section 5 of the same article is commonly called the equality and uniformity clause of the 'Constitution, and has been uniformly construed by this court as relating to property only.

In Fort Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 58 L. R. A. 921, 91 A. S. R. 100, the court held that the Legislature had the power to authorize -cities to impose a tax upon the privilege of driving vehicles upon the public streets of the city, and that, -because the ordinance does not attempt to tax property but to tax a privilege, the provisions of § 5, art. 16, of the Constitution, requiring that all property “shall be taxed according to its value,” and in such manner as to make the same equal and uniform throughout the -State, do not apply, since they refer to taxes upon property only.

In State v. Handlin, 100 Ark. 175, 139 S. W. 1112, an inheritance tax law was upheld on the ground that inheritance taxes are not laid upon property, but upon the privilege or right of succession thereto, and are not subject to the same tests with respect to equality and uniformity under § 5, art. 16, of the Constitution as taxes levied upon property. The same rule was laid down as to a tax on corporate franchises. St. Louis S. W. Ry. Co. v. State, 106 Ark. 321, 152 S. W. 110, affirmed in 235 U. S. 350, 35 S. Ct. 99.

In Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S. W. 450, 32 A. L. R. 84, the court sustained the validity of a severance tax law, and in doing so necessarily held that it was not a property tax, and therefore did not violate § 5, art. 16, of the Constitution, that all property subject to taxation shall be taxed according to its value.

In Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720, it was held that, while the act under consideration subjecting all persons and corporations to a gross income tax was void because it necessarily operated in a discriminatory and arbitrary manner, still it was within the power of the Legislature to pass a properly classified net income tax law. This rule was reaffirmed in Stanley v. Gates, 179 Ark. 886, 19 (2d) S. W. 1000. In that case the court again held that an income tax was- not a property tax, and that the act therefore was not violative otf the equality and uniformity clause of § 5, art. 16, of the Constitution, which relates exclusively to property taxes.

It necessarily results from these decisions that there are other sources of revenue for State purposes than that derived from the taxation of property. If the.equality and uniformity clause of § 5, art. 16, refers exclusively to property taxes and not to other subjects' of- taxation for State purposes, such as inheritance taxes, severance taxes, income taxes and privilege taxes, we can perceive no good reason why the limitation of the rate of taxation referred to in § 8, art. 16, should not also be confined exclusively to property taxes. Judge Cooley expressly recognizes that the amount of tax authorized by State Constitutions to be levied on property as such has no reference to specific taxes. The learned author says that tax limitations on rate or amount generally apply only to those taxes usually classified as property taxes as distinguished from excise or license taxes. Cooley on Taxation, 4 ed. vol. 1, § 168. Among the decisions cited in support of the text are* cases from Alabama construing sections of the Constitution of that State similar to §§ 5 and 8 of our Constitution. In Ex parte City Council of Montgomery in re Knox, 64 Ala. 463, it was held that the General Assembly, not being restrained by any constitutional provision, may delegate to a municipal corporation the power to tax occupations, trades, employments and professions; and that the constitutional provision which limits municipal taxation on property to “one-half of one per cent, of the value of such property as assessed for State taxation during the preceding* year” has no reference to specific taxes which may be imposed on privileges.

In Western Union Telegraph Co. v. State Board of Assessment, 80 Ala. 273, 60 Am. Rep. 99, it was held that the constitutional provisions which declare that “all taxes levied on .property shall be assessed in exact proportion to the value of such property,” and inhibit the levy of “g*reater rate of taxation than three-fourths of one per centum of the value of taxable property within this State,” prescribe a rule and limit of taxation on property, but do not include all the legitimate subjects of taxation, some of which are not susceptible of determinate value. Again in Goldsmith v. Mayor and Aldermen of Huntsville, 120 Ala; 182, 86 So. 56, 11 A. L. R. 300, it was held that the amount of tax authorized by the Constitution and laws of the State to be levied upon property as such, real and personal, has no reference to specific taxes which may be imposed on occupations and privileges.

It is true that in Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 11 A. L. R. 300, the Supreme Court of the State of Alabama held that the term “property” as used in the Constitution of 1901, § 214, providing that the Legislature shall not have the power, to levy a greater rate of taxation than sixty-five one-hundredths of one per centum of the value of taxable property within the State, includes incomes as defined and taxed by the Revenue Act of 1919, but the holding’ was based upon the determination that income was property within the meaning of the constitutional provision limiting the tax rate to a certain percentage of the value of the taxable property of the State as above set forth.

Prom reading the Alabama decisions it will be seen that the Supreme Court of that State always adhered to the view that a property tax and income tax were one and the same thing, as distinguished from an occupation or privilege tax. We have taken the contrary view, as will appear from our cases cited above, and have expressly held that an income tax and a property tax are not one and the same thing. It is perfectly evident that, if the Alabama Supreme Court had been of the opinion that an income tax was not a property tax, it would not have held that the imposition of taxes upon incomes by the Revenue Act of 1919 was void, because it exceeded the constitutional rate which might be levied on the value of the taxable property in the State.

In Magnes’ Estate, 32 Colo. 527, 77 Pac. 853, the Supreme Court of Colorado held that a State inheritance tax law did not contravene art. 10, § 3, of their Constitution requiring uniform taxation, for the reason that the section of the Constitution related only to taxes on property, while the inheritance tax was a privilege and not a property tax. In that case it was further held that, because the inheritance tax was a tax on privilege only, it did not contravene art. 10, § 11, of the Constitution limiting the rate of taxation on property for State purposes. These principles control here, and we hold that § 8, art. 16, of the Constitution is a limitation upon the taxing power, so far as the same applies to taxation of property, and only limits the percentage rate or amount which may be levied upon property for State purposes for any one year.

Section 11 of the act under consideration provides for the payment of the “'State Construction Bonds” in annual payments from revenue under act 118, Income Tax Act of 1929, and regulates the manner of payment and the disposal of the fund remaining. In this respect the act is valid and falls squarely within the rule announced in Grable v. Blackwood, ante p. 311, and cases cited.

It is next insisted that act 180 was repealed hy acts 271 and 272 passed at the same session of the Legislature. Act 180, as will appear from its title and from the language of the act itself, was passed for the purpose of constructing and equipping adequate buildings for the Hospital for Nervous Diseases and buildings for the Tuberculosis Sanatorium, and authorizing the commission created to issue bonds in payment of same. Acts 1929, vol. 2, p. 884. Act 271 was an act making appropriations for purchasing site and erecting and equipping buildings for the Arkansas Tuberculosis Sanatorium. Act 1929, vol. 2, p. 1158. Act 272 was for the same purpose for the State Hospital for Nervous Diseases. Neither of the later acts contain any express repeal of act 180. Implied repeals are not favored. It is only where there is an invincible repugnancy between the two acts, as where it is evident that the last act is a substitute for the first act, or where the last act takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute, that a repeal by implication is accomplished. Massey v. State, 168 Ark. 174, 269 S. W. 567; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; and State v. White, 170 Ark. 880, 281 S. W. 678. Here there is not only no repugnancy between the first act and the two later, but it is manifest that the two later acts were passed in aid of the first act, and not as a substitute therefor, or with the implied intention of repealing it.

Finally it is insisted that the source of revenue provided for the payment and retiring of the bonds under act 180 is exclusively the fund from act 118, the Income Tax Law of 1929, and that this renders the act uncertain and void. We do not think so. Section 9 provides that the State shall borrow a sum of money to carry out the requirements of the act, not to exceed a designated amount, and shall issue the bonds of the State for the amount so borrowed. Section 10 provides that the bonds shall be known as “State Construction Bonds,” and shall be signed by the Governor, the State Treasurer and the chairman of the commission, and shall be attested by the Secretary of State under the Great Seal of State. It further provides that the bonds shall state on their face that the full faith and credit of the 'State is pledged for their payment. Section 12 provides that the bonds shall be negotiable paper, notwithstanding* they are payable out of a special fund. Section 14 provides that, when any bonds shall have been issued, they shall be registered in the office of the State Auditor, in a book to be provided for that purpose; and the Auditor or deputy auditor, shall indorse on each bond a certificate that in the issuance thereof all the conditions of law have been complied with. Thus it will be seen that the General Assembly, by legislative enactment, the most solemn and binding way in which it could act, pledged the full faith and credit of the State to the payment of the bonds, as well as provided a special fund to insure their payment.

The Legislature had the power to authorize the issuance of the bonds, and also to levy a tax for their payment upon any legitimate subject of taxation. This branch of the case is thoroughly settled by the principles of law decided in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.

The result of our views is that the decree of the chancery court was correct, and it will be affirmed. It is so ordered.


author: Smith, J.

text:
    Calhoun v. State.
    Opinion delivered November 18, 1929.

      Chas. D. James, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was tried and convicted under the following indictment: “The said Charley Calhoun, on or about the 3d day of February, 1929, in the said Western District of Carroll County and State of Arkansas, Eli Cox, who was in custody, after lawful ar-*rest and before conviction for a felony, knowing and being informed that the said Eli Cox was lawfully arrested, did unlawfully and feloniously, by unlawful means set at liberty the said Eli Cox, and did unlawfully and feloniously and voluntarily and corruptly and of purpose let the said Eli Cox escape.”

He filed a demurrer before his conviction, and a motion in arrest of judgment afterwards, questioning the sufficiency of the indictment. For the reversal of the judgment it is also insisted that incompetent testimony was admitted, and that the testimony is insufficient to sustain the conviction.

It is true, as appellant insists and as the statute provides, that the indictment must be direct and certain as regards “the particular circumstances of the offense charged where they are necessary to constitute a complete offense” (paragraph four, § 3012, C. & M. Digest), and that the language of the indictment must contain ‘ ‘ a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended” (paragraph two, § 3028, C. &. M. Digest). But it is also true that the indictment is sufficient if it can be understood therefrom that it was properly found, and that the offense charged was committed within the .jurisdiction of the court, and that “the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction according* to the right of the case.” Section 3013, C. & M. Digest. The statute also provides that “no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Section 3014, C. & M. Digest.

Here the offense charged is a statutory crime, and it is charged in the language of the statute, which is ordinarily sufficient, unless the circumstances of the case are such as to make a more particular statement of the facts necessary to enable the person accused to properly prepare his defense, and to plead an acquittal or conviction as a bar to a further prosecution for the same offense.

At § 18 of the chapter on Escape, 10 R. C. L., page 591, it is said: “An indictment for an escape, prison breaking or rescue, or If or permitting a prisoner to escape, is of course to be governed generally by the ordinary rules of law which govern indictments and informations. Generally speaking, an indictment is sufficient if it contains a statement of the acts constituting the offense, in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended, and if the act or omission charged is stated with such a degree of certainty as -to enable the court to pronounce judgment of conviction according to the rights of the case. ’ ’ The language quoted is substantially identical with that of the statutes of the State which we have cited. In the note to the text quoted the case of Houpt v. State, 100 Ark. 409, 140 S. W. 294, is cited, and the case is annotated in Aim. Cas. 1913C 690.

In the Hbupt case it ivas said: “An indictment for a statutory offense must state all the ingredients essential to. constitute such offense, but it is sufficient ordinarily to follow the language of the statute in charging the statutory offense. One of the essential elements constituting the crime of escape is that the prisoner was in the lawful custody of the officer, and this must appear from the allegations of the indictment. It is, however, sufficient to meet this requirement by general averments in the language of the statute that the prisoner was in the lawful custody of the officer.”

Here the indictment alleges that the prisoner rescued was in lawful custody, charged with the commission of a felony, and that appellant was aware of that fact. The indictment does not allege what felony was charged; but this was entirely immaterial.

The indictment does not allege the means employed to effect the rescue; but this was not required. The case of State v. Embrey, 135 Ark. 262, 204 S. W. 1139, was a prosecution for obstructing process, and it was there said:

“It is insisted that the indictment is defective because it does not charge the particular circumstances of the offense. The indictment charges that H. W. Finger, who was sheriff of Polk County, was attempting to arrest Julius Carden and Bettis Alston in said county for a felony on the 16th day of November, 1917, and that appellee did unlawfully, knowingly and willfully obstruct and resist him when attempting to make the arrest. The indictment stated all the ingredients essential to constitute the offense of obstructing a peace officer in an attempt to arrest a party for a felony. This is all that is required in charging statutory crimes. The manner and mode of resisting the officer is a matter of evidence. Putman v. State, 49 Ark. 449, 5 S. W. 715; Houpt v. State, 100 Ark. 409, 140 S. W. 294.

The majority are therefore of the opinion that the indictment sufficiently charges the crime of which appellant was convicted.

The assignment of error, that the testimony is not sufficient to support the verdict, may be disposed of by a brief review of the testimony offered on the part of the State. It was to the following effect: Davidson, a justice of the peace, testified that an affidavit for a warrant of arrest was made before him by some one, and it was his recollection that the affiant was George Garrison, Jr.,'although he was not sure, as the affidavit had been lost; and that the warrant, when issued, was delivered to either the constable of the township or the chief of police of the city of Eureka Springs, who was also a deputy sheriff, as these officers were together when the warrant was issued, but the warrant had been lost. The constable testified that he made the arrest under the warrant which Davidson had issued, and the chief of police had assisted him in doing so, and these officers put Cox in jail. Other witnesses testified that appellant effected, the rescue of Cox by breaking off the lock on the door of the jail.

Objection was made to the testimony of Davidson that an affidavit had been made before him, upon which he had issued the warrant of arrest, and to the testimony in regard to the warrant itself, for the reason that the best evidence of these transactions would have been the production of the affidavit and the warrant. But the loss of these writings was shown, and parol eivdence was admissible of that fact and to show the nature and character of the lost instruments. Leake v. State, 149 Ark. 621, 233 S. W. 773.

The judgment must, therefore, be affirmed,'and it is so ordered.


author: Mehafey, J.

text:
    Hill v. Ætna Insurance Company.
    Opinion delivered November 4, 1929.
    J. G. TJvmeatt & Sons, for appellant.

      W. L. Jean and Clayton & Cohn, for appellee.
   Mehafey, J.

On March 21, 1928, the appellees filed their complaint in the common pleas court against the appellants, asking judgment in the sum of $191.42 and interest.

Roy F. Hill, one of the appellants, had entered into a contract with appellees whereby he agreed to write fire and tornado insurance as agent, and was to receive as his commission 20 per cent, of the premium- on all policies written; it was the contention of appellee that, according to the contract, appellant would return to plaintiff any unearned commission paid on that part of the premium returned to assured, either on a policy or application for same after cancellation. It was also alleged that a bond was executed by Roy F. Hill, as principal, and the other appellants, Joe K. Hill and Glynn P. Hill, as sureties.

The defendant answered, and denied there was anything- due under the contract and bond.

The case was heard on the 14th day of May, 1928, and the court found for appellants, and judgment was entered on that date. The court adjourned on the afternoon of May 14. Before the court adjourned, however, attorney for appellee prayed an appeal in open court to the circuit court of Prairie County, and the court granted the appeal. The undisputed facts, however, show that he did not enter the order or mark his record showing the appeal granted, but he testified that he meant to do so. The court also told the attorney for the appellee that it would be all right for him to go back to Little Rock, and prepare his motion and affidavit for appeal and mail them back to DeV'alls Bluff to be filed of record. The attorney for appellee came to Little Rock, prepared the affidavit, and on the same day, the 14th of May, wrote a letter to the clerk of the common pleas court of Prairie County, DeValls Bluff, Arkansas, inclosing the affidavit for appeal. The clerk, however, did not get this affidavit from the postoffice until the morning of the 15th. The attorney for appellee told the court that he would go to his office and fix up the affidavit and mail it right back, and the court said that would be all right. He immediately -went to Little Rock, prepared the motion, and sent it back to the clerk. This was done about 1:30 in the afternoon of the 14th, and, in the ordinary course of the mails, should have reached the clerk’s office at DeValls Bluff that afternoon.

The clerk testified that court met on May 14 and closed the same day, and that that was the day that the case was tried, and that the records did not show any motion and affidavit by the HDtna Insurance Company on that day. It does show that it was filed on the 15th. He testified that he received it in the morning’s mail May 15. He said he did not know whether it came to DeValls Bluff about 3:30 or 4 o ’clock on May 14, but it might have done so. He did not get it until next morning.

The -transcript was filed in the circuit court, and, when the case was called in circuit court, appellants moved to dismiss'the appeal on the ground that a written motion for appeal was not filed, and the appeal was not granted by the common pleas court at the term when the cause was tried. The court heard evidence, and sent the case back to the common pleas court, directing the common pleas court to enter a nunc pro tunc order as of May 14, 1928. The common pleas court had the order entered, and it showed the granting of the appeal on the 14th day of May to the circuit court. When the ease came on for hearing again in the circuit court, after this nunc pro Pune order was entered, the appellants again filed a motion to dismiss, which the court overruled, and, after hearing the evidence, directed a vérdict in favor of appellee.

The appellants first contend that the motion to dismiss the appeal should have been sustained. The common pleas court of Prairie 'County was created by act 61 of the Acts of 1875, and this act prescribes the procedure for taking an appeal from a judgment of the common pleas court. The act provides that any person aggrieved may appeal upon complying with the following requisites: (1) The applicant (appellant) or agent shall make and file with the clerk an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done. (2) The appellant, or some person for him, together with one or more securities, to be approved by the clerk, must enter into an obligation to the adverse party in a sum sufficient to secure the payment of such judgment and the costs of appeal. (3) The appeal shall be granted by the court as a matter of right, upon motion filed at the same term of the court at which the judgment was rendered; and the entering of the order granting the appeal shall be sufficient notice to the adverse party that an appeal has been taken. (4) In order to make the appeal effectual, the affidavit and bond for appeal must be filed with the clerk within thirty days after the appeal is granted; and, upon the filing of said affidavit and bond, all further proceeding's in said court shall be suspended; provided, that either party may appeal without' giving any bond, but in such cases the judgment shall not be superseded.

It is the contention of the appellants that the appeal was not properly taken, and he cites and relies on the case of Ferguson v. Doxie, 33 Ark. 663. In that case, however, the court said: “Appellants made no motion for an appeal, and none was granted at the term. But they filed with the clerk in vacation, and within thirty days after the judgment was rendered, an affidavit and bond for an appeal, and he transmitted the original papers’ with the affidavit and bond and a certified transcript to the clerk of the circuit court as in cases of appeal.”

In that case no appeal was granted by the court, and no request was made, and no motion was made during the term. The act provides that the court, and not the clerk, may grant the appeal, and in that case the court did not grant the appeal, and ño motion was made for an appeal during the term of court. In the instant case, immediately after the decision of the common pleas court, and in open court, the appellee made a motion, and the court granted the appeal, and on the same day the affidavit was mailed to the clerk, and should have reached there about 3:30 or 4 o ’clock, although the clerk did not get the affidavit until next morning.

In the case in the 33d Arkansas, as we have said, there was no motion for appeal, and the court never granted any appeal. The appellant in that case filed a motion with the clerk after the adjournment of court, and of course the clerk had no authority to grant an appeal. In the instant case the appeal was granted by the court during the term, although no record was made of it. But a party could not be deprived of his right to appeal simply because the officer failed to note it on the .record. The appeal was granted when the motion was made.

We said in a recent case: “The judgment of the court is the pronouncement of the judge upon the issue submitted to him. When spoken, it is the court’s judgment. Necessarily, the giving of the judgment must precede its historical engrossment. The clerk of the court executed the mechanical act of recording in some manner so as to give permanence to the evidence of the judgment that the court has delivered. ’ ’ McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.

The same thing may be said with reference to the court in granting the appeal in this case. The pronouncement of the judge, when the motion was made granting the appeal, was all that was necessary for him to do.

We also said in the above case: “It has been said that it must be manifest that the record is not the judicial act. It is only historical. Its practical use is evidential. * * A decree ¡becomes effective from the day of its rendition, and not from the day of its entry on record. Where a judgment or decree has been actually rendered but not entered on the record, in consequence of an accident or mistake, or the neglect of the clerk, the court has power, at a subsequent term, to order that the judgment or decree be entered of record nunc pro tunc, provided the fact of its rendition is satisfactorily established.”

The undisputed proof in the instant case shows that the appeal was actually granted. Therefore it was proper to require the judge of the common pleas court to enter it of record nunc pro tunc.

The appellant next calls attention to the case of Katz v. Goldman, 64 Ark. 395, 42 S. W. 901. In that case the court said that the requirement of the statute that a motion be made and filed (implying that it be in writing) is directory to the court, for when the affidavit and bond for appeal are filed and the court’s attention is called to them, the appeal goes as a matter of course. And in the Katz case, above referred to, the court said, in reference to the case of Ferguson v. Doxie, supra: “The appellants in that case made no motion for appeal in the common pleas court.” And the court further said, in speaking of the dismissal: “Obviously there is but one way of taking an appeal provided, and it must be moved for and taken at the term at which judgment is rendered. This not having ¡been done, the circuit court acquired no jurisdiction. The clerk could not grant the appeal under the act, and only the common pleas court could, and in the case at bar the appeal was granted by the court at the term at which the judgment was rendered. The circuit court erred in dismissing the appeal.”

The same is true in the instant case. The clerk could not grant the appeal, but the appeal was granted by the court at the term at which the judgment was rendered. We think there was a .substantial compliance with the statute, and that the appeal was properly taken.

The fourth paragraph of the act providing for an appeal in act 61 of the Acts of 1875 provides: “In order to make the appeal effectual, the affidavit and bond for appeal must be filed with the clerk within thirty days after the appeal is granted. ” The appeal might have been granted by the court as it was in this case and the affidavit and bond filed any time within the thirty days.

Appellant next calls attention to the case of Drainage Dist. v. Stuart, 104 Ark. 113, 147 S. W. 460, as authority to sustain his contention that the circuit court could obtain no jurisdiction unless an appeal was actually granted. This is true. Unless an appeal was actually taken, the circuit court would of course acquire no jurisdiction.

Appellant argues that the court cannot extend the time for filing the motion. But it is of course immaterial in this case whether that is correct or not, because time to make the motion for an appeal was not extended, and the appeal was granted on the day the judgment was entered, and time was given merely for filing the affidavit, which the statute itself says may ibe filed within thirty days.

It is next contended by the appellant that the court should have directed a verdict for him. There is no dispute about the contract entered into between Boy F. Hill and the appellee, and no dispute about the bond. There is a dispute about the indebtedness; that is, about the construction of the contract. The contract in regard to the cancellation of policies and the return commission reads as follows: “In case of cancellation of any policy, the party of the second part agrees to return to the party of the first part any unearned commission paid him on that part of the premium returned to the assured on such canceled policy or the application for same; said unearned commission to be paid to party of the first part on or before the 15th of the month next following the month in which such policies or applications are oánceled.”

It is contended by the appellant that, by the terms o.f the contract, appellant was not to return unearned commissions on policies canceled by the appellee, but he was to return unearned commissions on the part of the premiums that had been returned to the assured, and that, unless such parts of premiums had been returned and until the same had been returned, there could be no duty on appellant to return any commissions. The obligation under the contract was upon the appellee to return the premiums, and it is admitted by appellant that, if it had returned the premiums to the assured, that the appellant would have to return the unearned commissions. We think that under the contract the appellant, Boy F. Hill, was liable for the unearned commissions which he had collected.

The testimony showed that when the policy was canceled they returned to the insured $32.40, and the $6.48 which was due from Hill, 80 per cent, going to the company and 20 per cent, to Hill. Only one policy was introduced, and the court asked if there was any dispute as to the amount due the company. The attorney for the defendant stated: ‘ ‘ The amount is correct. But we contend that we don’t owe it. ’ ’ The attorney for the appellee said: “The total amount we claim due. the company is $191.42.”

It is unnecessary to set out all the testimony here, but we think the testimony'was sufficient to justify the court in directing a verdict for the appellee.

The judgment of the circuit court is therefore affirmed.


author: Mehaeey, J.

text:
    Scott v. State.
    Opinion delivered November 4, 1929.

      H. B. Means, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaeey, J.

The appellant was convicted for malicious mischief in the justice of the peace court on June 15, 1929. It was charged that he unlawfully, willfully and maliciously cut and tore down a wire fence, the property of C. C. McGrew. He appealed to the circuit court, where he was tried, found guilty by a jury, and fined $50, and he has appealed to this court for a reversal of the judgment.

His first contention is that the court erred in refusing to give instruction No. 1 requested by the defendant. Said instruction was as follows: “You are instructed that under the law and testimony of this case you should find the defendant was not guilty. ” It is contended that there was no legal evidence upon which to base the verdict.

C. C. McGrew testified that on the 3d day of June, 1929, he was informed that his hogs were out of the pasture; that he went down to the pasture, and found that the net-wire' fence was cut, and saw hog tracks where the hogs went out, and that there were also a man’s tracks there. It had rained the night before, and he could see the tracks. He could find the man’s tracks and hog tracks all along at different places, and tracked them down to the road that turns down to John Scott’s house. He looked in Scott’s pasture, and found hog tracks going out of his lot into his pasture. He did not find his hogs, but they returned home on the third day after his fence was cut.

Oscar Deal testified that on the same day he saw Roy Scott tolling two hogs; that he turned down the railroad.

Mrs. Jonah Hartsell testified that she saw Roy Scott on, the third day of June tolling two hogs, and that he tolled them up toward John Scott’s (appellant’s father’s) house.

Mrs. John Henson testified that on the same day she saw Roy Scott tolling hogs, and he carried the hogs in the direction of his father’s house, and the next day the same hogs came to her house. A son of Mrs. Henson testified to the same effect.

Joe Pilcher testified that on the 3d day of June he passed McGrew’s pasture, and saw his fence had been cut, and saw a man’s tracks and hog tracks where the fence was cut.

■Shorty Nugent also testified that he saw Roy Scott tolling hogs, and the defendant did not testify, but his father, John T. Scott, testified that he had two hogs that got out on the 3d of June; that Roy Scott found the hogs, and tolled them home and put them in his pasture; that one of the hogs was the mother of the two that McGrew had, and the other was the sister that was marked the same as the two McGrew had.

It will be seen therefore that the testimony tending to show that the appellant cut the fence was circumstantial, but we think the testimony that the fence was cut, the hog-s missing, and that Roy Scott was seen tolling hogs of the description of MoGrew’s hogs, was sufficient to submit the question to the jury as to whether Roy Scott cut the fence.

This court has said repeatedly that the jury are the judges of the credibility of the witnesses and the weight to be given to their testimony, and in testing the legal sufficiency of the evidence to warrant the jury in returning a verdict of guilty it must be viewed in the light most favorable to the State v. Campbell v. State, 170 Ark. 936, 282 S. W. 4.

Appellant next contends that instruction No. 2 given at his request, and instruction No. 8 given at the request of the State, are in hopeless conflict. We do not agree with appellant in this contention. Instruction No. 2 given at the request of the defendant was as follows: “You are instructed that a defendant, at his own request, but not otherwise, shall be a competent witness on the trial, but his failure to make such request shall not create any presumption against him.”

No. 8 was an instruction telling the jury that they were the sole and exclusive judges of the weight of the evidence and credibility of witnesses, and it tpld them that, in weighing a -witness’ testimony, they might take into consideration certain things. But it also told them that the defendant’s testimony must be weighed by the same rule as the testimony of other witnesses. This instruction was the usual instruction given in cases where the defendant testifies, and doubtless the court overlooked the paragraph in it with reference to the testimony of the defendant. But it was a correct instruction as a whole, and the defendant did not make any specific objection nor call the court’s attention to- the fact that the instruction mentioned -defendant’s testimony. The-re is -certainly no conflict between it and No. 2 given at defendant’s request. No. 2 simply told the jury that the defendant might testify, but that his failure to do so should not create any presumption against him. Certainly that cannot be said to be in conflict with a statement to the jury that they should weigh a defendant’s testimony by the same rules they do the testimony of other witnesses. At any rate, no specific objection was made, and, for that reason, appellant cannot urge the error here. But he says it was prejudicial because it necessarily called the jury’s attention to the fact that the defendant had failed to testify in his own behalf. The fact is that the appellant himself had asked the instruction calling the jury’s attention to this fact.

Appellant also contends that the court erred in giving instruction No. 7. This is an instruction frequently given, and no specific objection was made to that part of it of which the appellant now complains. The instruction reads as follows: “You are instructed that a reasonable doubt is not any possible or imaginary doubt hatched up for the purpose of an acquittal, because everything that depends upon human testimony is susceptible of some possible doubt. To be convinced beyond a reasonable doubt is that state of the case which, after entire consideration of the testimony, leaves the minds of the jurors in that condition that they fee-1 an abiding conviction to a moral certainty -of the- truth of the charge.”

The appellant says that this was a reflection on the ■witnesses in the case, the defendant and the attorneys, to use the expression “hatched up for the purpose of an acquittal.” We do not think so. It was not a reflection on any one, but it was a statement to the jury that the doubt referred to as a reasonable doubt was not any possible or imaginary doubt hatched up for the purpose of an acquittal. We think this expression, “hatched up for the purpose of acquittal,” should not have been used in the instruction, but the appellant made no specific objection. If he had called the court’s attention to it, it would have doubtless been corrected, and he failed to do this.

The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. They are bound by their oaths' to render a verdict upon all the evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of the fact may be inferred. Nichols’ Applied Evidence, vol. 2, § 4,1065; Underhill’s 'Criminal Evidence, pages 14 and 16.

We think the evidence was sufficient to warrant the jury in finding the defendant guilty, and that there was no reversible error committed by the court, and the judgment is therefore affirmed.


text:
    St. Louis-San Francisco Railway Company v. Williams.
    Opinion delivered November 18, 1929.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.
   Smith, J.

Appellee recovered a judgment against the appellant railway company to compensate a personal injury sustained by her. The circumstances of the injury were as follows: She was walking between the main line, and a sidetráek at a point where there is a sharp curve. No road or street crossed the tracks near the place of her injury. The main line track was the outer one, and there were seven or more cars on the curve of the sidetrack, which ran parallel with the main line track, and at the usual distance from it. A person could have stood in the space intervening between the cars on the sidetrack and a passing train on the main line track without being struck by the train. Appellee was walking around the curve when a train approached from behind her, without ringing the bell or blowing the whistle, according to the testimony offered in her behalf, and, before she was aware of the approach of the train, it passed her, and in doing so threw her violently to the ground and inflicted a painful injury.

It is apparent from the facts stated that appellee was a trespasser at the time of her injury, and, under the principles of the common law, the railroad company was under no duty to anticipate her presence and give her warning of the approach of the train by ringing the bell or blowing the whistle; nor was there any duty to maintain a lookout to discover her presence. The only duty owing to her, as a trespasser under the common law, was to exercise ordinary care under the circumstances to avoid injuring her after discovering her presence on the track and consequent peril. But, by an act of the G-eneral Assembly approved May 26, 1911, which appears as § 8568, C. & M. Digest, it is made the duty of all persons running trains in this State to keep a constant lookout for persons and property upon the track, and it is therein provided that, if any person or property shall be killed or injured by the failure to keep such lookout, the railroad company operating’ the train is made liable and responsible for all damages resulting from such neglect, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the person charged with the duty of keeping it could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, and the burden is imposed upon the railroad to establish the fact that the duty to keep such lookout had been performed.

This statute has been construed and applied in numerous cases .arising under it, and no useful purpose would be served by reviewing them.’ In one of the latest of these — that of Kelly v. DeQueen & Eastern R. R. Co., 174 Ark. 1000, 298 S. W. 347 — we said: “We do not think the railroad company is liable for hitting a trespasser on the track, unless the plaintiff shows that the injury might have been avoided if a proper lookout had been kept,” by -which was meant, as is made plain by other portions of the opinion from which we have just quoted, that it must be shown by the person asserting liability that the injury complained of was inflicted at such a place and under such circumstances that the presence of the injured party or property would have been discovered had the lookout required by the statute been kept. Upon such a showing being made, the burden then shifts to the railroad company to show that the duty to keep a lookout'had been performed, and, to escape liability for the injury complained of, the railroad company must also show that the injury was unavoidable by the exercise of ordinary care. Numerous cases have defined the measure of this duty under particular facts.

The engineer testified that he was keeping a lookout, but, on account of the curve in the tracks and the presence of the box-cars on the sidetrack, he did not, and could not, see appellee until he was within about forty feet of her, and that the train was running at a speed of only twelve or fifteen miles per hour, as it had entered the limits of the city of Blytheville, and that he immediately applied the emergency brake, and the front of the train, which was a motor-car, rolled up to appellee without striking her, but, before the train could be stopped, some portion of it, probably a ladder running up the side of the car, struck her, and the train stopped within fifty feet after striking her. There is no contradiction of this testimony in that of any of the numerous witnesses who testified in the case, or in any fact or circumstance dedueible therefrom appearing in the evidence.

As there was no fact or circumstance in evidence substantially contradicting the testimony of the engineer, it was an arbitrary act on the part of the jury to disregard his testimony. St. L. S. F. R. Co. v. Harmon, 179 Ark. 248, 15 S. W. (2d) 310. If the engineer’s testimony is accepted as true, as it should have been in the absence of any contradiction thereof, or if his testimony did not appear of itself to be so unreasonable or improbable as not to be worthy of belief, then there was no' negligence on his part, and consequently no liability on the part of the railroad company can be predicated under § 8568, C. & M. Digest, supra.

Nor can any liability be predicated upon § 8575, C. & M. Digest, which provides that, in suits against railroads for personal injury or death, contributory negligence shall not prevent a recovery where the negligence of the person killed or injured is of less degree than that of the employees of the railroad company causing' the damage complained of, it being- provided in such case that the amount of the recovery shall be diminished in proportion to such contributory negligence. This is true because, as was said in the case of St. L. S. F. R. Co. v. McClinton, 178 Ark. 73, 9 S. W. (2d) 1060, “the undisputed testimony is such that it must necessarily appear that appellee’s negligence was greater than that of the operatives of the train, and, this being true, a recovery is not authorized by § 8575, C. & M. Digest. ”

A verdict should therefore have been directed in favor of appellant, and the judgment in appellee’s favor must be reversed, and, as the case appears to have been fully developed, it will be dismissed.


author: Humphreys, J.

text:
    Dudney v. Wilson.
    Opinion delivered November 18, 1929.

      ' Marsh, McKay <& Marlin and Patterson $ Rector, for appellants.

      R. E. Wiley, for appellee.
   Humphreys, J.

This suit was brought by appellants against appellee, in the Second Division of the Chancery Court of Union County, to charge with a trust the one-half interest acquired by him in the east one-half of the northeast quarter of the northeast quarter of section 16, township 17 south, range 16 west, in Union County, Arkansas, under a redemption deed from the State of Arkansas to Mary E. Benton and Susan R. Perry, as sole heirs of W. H. Tatum, deceased.

The gist of the complaint is that, after accepting employment from them to procure the sale of said land by proceedings in the county court of said county provided by statute for sales of sixteenth section lands, and, after filing the petition for that purpose in said court, he redeemed same for the Tatum heirs, under prior employment by them, from the State of Arkansas, that had acquired title thereto under the overdue tax sale in Union County in 1883, upon information acquired by him as to the State’s title in the course of his employment by appellants, and thereby defeating or preventing the accomplishment of the purposes for which they employed him.

Appellee interposed the defenses that he accepted the employment to procure a judicial sale of the said land through a mutual mistake that it was a part of the sixteenth section school lands which had never been sold,, and that, after filing a petition for the public sale thereof under his employment, he discovered from an independent source that it was State land acquired under the overdue tax sale of 1883, and land in which he owned an interest by virtue of a contract to recover same for Mary E. Benton and Susan R. Perry as heirs of their father, W. H. Tatum, and that, immediately after making the discovery, he notified appellants of his employment by. the Tatum heirs, severed the relationship of attorney and client with them, and redeemed the land for said heirs. The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties, which resulted in a dismissal of appellants’ complaint for the want of equity, from which is this appeal.

The record reflects that, at the time of the employment of appellee by appellants, the land in question was not a part of the unsold sixteenth section school lands of the State, but had been sold prior to the Civil War to W. H. Tatum, who allowed it to forfeit for taxes, and that th'e State acquired title thereto under the overdue tax sale in Union County in 1883.

The testimony is in conflict as to whether the employment was to obtain a public sale of the land provided it was a part of the unsold sixteenth section school lands, or whether broad enoug’h to include the procurement of a public sale thereof if acquired by the State under the overdue tax sale of 1883. Appellee proceeded, however, by petition under § 9104 of Crawford & Moses’ Digest, providing for sales of original sixteenth section school lands.

The testimony is also in conflict as to whether, after filing the petition, appellee obtained the information that the State acquired title thereto under the overdue tax sale of 1883 in the course of his employment by appellants, or whether he acquired the information from an independent source.

The testimony is also in conflict as to whether, immediately after discovering the source of the State’s title, to the land, and that it was the particular land Mary E. Benton and 'Susan R. Perry had employed him to redeem for them prior to his employment by appellants, appellee fully revealed all the information he had acquired, and that he at once severed his connection or fiduciary relationship with them. Appellants admit that he told them that the land was not a part of the original sixteenth section school land, and that it was land that he had theretofore been employed to redeem for the Tatum heirs, but they disputed his claim that he severed his fiduciary relationship with them; they also admit that they suggested that he procure a deed to the land from the Tatum heirs to them in order that they might redeem it themselves. Appellee testified that, after revealing the source of the State’s title to them and informing them that he intended to redeem the land for his other clients, he agreed to their proposal to get a deed from his other clients to them, provided they would pay his other clients the fair market value thereof, and that they all drove out to view the land in order to determine, if possible, the fair market value thereof; that, after inspecting it, Dudney offered $12,000 for it, stating that he had tentatively sold the land, if they acquired it at the sale, for that sum; that he told Dudney the land was worth from $500 to $1,000 an acre, which price appellants refused to consider. Dudney does not dispute appellee’s testimony in this particular. It stands in the record as an undisputed fact. We deem it unnecessary to decide where the weight is as to the disputed facts, as the undisputed fact just related is sufficient within itself to sustain the decree of the trial court. The rule of law governing one under fiduciary relationship or duty is succinctly and tersely stated in the case of Trice v. Comstock, 121 Fed. 620, as follows :

“Every agency creates a fiduciary relation, and every agent, however limited his authority, is disabled from using any information or advantage which he acquires through his agency, either to acquire property or to do any other act which defeats or hinders the efforts of his principal to accomplish the purpose for which the agency was established.”

Under this rule any violation or miscarriage of the trust must defeat or prevent the purpose of the trust before the principals can follow any property derived therefrom by their agent who claims same. The purpose of the trust in the instant case was that appellants might gain or obtain the privilege of buying the particular land in question at a public sale. This meant that they would have to bid something like the value of the land if they procured it in that way, for the land was valuable as an oil prospect. Appellants were offered the land for the fair market value, and refused to consider the offer* This fact differentiates the instant case from the Comstock case, supra, upon which appellants rely for a reversal of the decree of the trial court.

No error appearing', the decree is affirmed.


text:
    Robertson v. Evans.
    Opinion delivered November 18, 1929.

      Rice •& Dickson, for appellants.

      Duty & Duty, for appellees.
   Humphreys, J.

This suit was brought in the chancery court of Benton Oounty, on June 28, 1929, by appellants against appellees to recover rents for and damages to a residence property in Rogers, Arkansas, occupied by appellees from the 4th day of April, 1926, to July, 1928, under deed, which was construed by this court in the case of Evans v. Robertson, reported in 177 Ark. at page 419, 6 S. W. (2d) 536, to be a mortgage, from which the appellants herein might redeem the property by the payment of the mortgage indebtedness. Reference is made to the case cited for a full statement of facts leading up to the institution of this independent suit for rents and waste.

Appellees interposed the defense of res judicata to the independent suit for damages on account of cutting shade trees on the property, and for rents on account of the occupancy of same from August 12, 1927, the date of the original decree in the redemption suit, and tendered the rents from and after that date to July, 1928, when they vacated the property, as the correct balance due them on the mortgage indebtedness.

The cause was submitted to the trial court on the pleadings and testimony adduced by the respective parties, as well as the entire record in the original redemption suit, with the result that the plea of res judicata was sustained, and a judgment rendered in favor of appellees for $357.30, balance due upon the mortgage after deducting the rents, which amount was declared a lien against the real estate involved, from which is this appeal.

The only question presented by the appeal is whether appellant’s claim for rents and waste was within the issues in the original redemption suit referred to above. Appellants contend that their claim for rents and waste was not pleaded in their original suit for a redemption of the property, and that they were not awarded anything upon their claim for either item in the decree in their redemption suit. Appellants have fully abstracted the pleadings and decree rendered in the redemption suit, the record of which was introduced in this case, but have not fully abstracted the evidence therein. It may be that the issue for rents and waste was presented by the evidence introduced in the redemption suit. The probability is that it was, as appellees herein have abstracted testimony introduced in the original case relative to cutting down the shade trees on the property, and to the effect that they were cut down before the redemption suit was tried in the lower court. The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such'matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. (2d) 735. A suit for the redemption of property necessarily includes any claim for rents on account of the occupancy thereof or waste committed during said time. Bents and waste follow right to redeem property.

Under the rule announced the trial court did not err ru sustaining the plea of res judicata interposed by the appellants herein to the action for rents and waste brought by appellees.

The decree is therefore affirmed.


author: Kirby, J.,

text:
    Western Union Telegraph Company v. Chappelle.
    Opinion delivered November 18, 1929.

      Elmer L. Lincoln and Rose, Hemingway, Cantrell S Loughborough, for appellant.

      DuLaney & Steel, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that, since the telegram erroneously transmitted was an interstate message, there is no liability on its part, since no claim for damages for its erroneous transmission was made in writing within 60 days after it was filed for transmission. It is true that no claim for the damages suffered because of the negligent transmission of the message was presented the appellant company in writing within 60 days after the message was filed for transmission, but it is also true that the appellee had no knowledge or information that the message had not been correctly transmitted, as it was the duty of the appellant company to do, until he went to collect the reduced rent, when due from his tenant, as fixed by him in the message filed and agreed to be paid by the reply thereto, and there was no intimation of any mistake made in the transmission of the message in the reply thereto received, nor any cause for appellee’s making an investigation to ascertain whether appellant company had transmitted correctly the message filed with it, as was its duty to do. Although it is not claimed that appellant company did anything to mislead the appellee, or that it was through its fault that appellee had no information or did not know of the incorrect transmission of the message until the 60 days had passed, but only that appellee is held to a literal application of the 60-day rule of filing his claim for damages, regardless of the fact that he had no intimation that his message had been incorrectly transmitted, resulting in his damage, until after the 60 days for making claim therefor had expired. Having duly received a reply to his message accepting its terms, without any indication therefrom of any mistake made in its transmission, and having no information of any circumstances that might lead a reasonable person to believe that such was the case and make investigation to determine it, he was not bound by the rule to present his claim in writing within 60 days after the filing of the telegram with the company for transmission.

We think a proper interpretation of this rule would allow a reasonable time for presentation of the claim for damages after the fact became known, nor do we understand that it has been held otherwise in Western Union Telegraph Co. v. Czizek, 264 U. S. 281, 44 S. Ct. 328, or in any other of the Supreme Court’s decisions relied upon by appellant, as contended. The claim was presented in writing immediately upon ascertainment of the fact of the incorrect transmission of the message and the suit brought shortly thereafter, and, under the circumstances, we hold that it was presented within a reasonable time, and that appellee’s claim is not barred by his failure to comply with the literal terms of the 60-day rule'.

The appellant company was the agent of the appellee in transmitting his message making the reduction in the rent, and he was bound by the mistake made in its transmission or by the terms in which it was delivered to the sendee, and he could not compel the payment of a greater sum than he had agreed in such message to accept for the rent. Des Arc Oil Mill Co. v. Western Union Tel. Co., 132 Ark. 335, 201 S. W. 273, 6 A. L. R. 1081.

The testimony of Eae, the tenant, that he would have accepted the reduction and paid the amount of rental as correctly designated in the telegram filed, was not incompetent. He had already agreed and was bound to the payment of a greater amount for rent, and there was nothing unreasonable in his saying that he would have paid the amount designated, and his refusal to pay more than the amount he agreed to pay by accepting the terms of the telegram as erroneously delivered is in no wise contradictory thereof or inconsistent therewith.

We find no error in the record, and the judgment is affirmed.


author: Kirby, J.

text:
    Lichty v. Faisst.
    Opinion delivered November 18, 1929.

      I. J. Friedman and Dean, Moore & Brasil, for appellant.

      G. B. Colvin, for appellee.
   Kirby, J.

(alfter stating the facts). Appellant insists that the court erred in not directing a verdict in his favor, and the contention should be sustained. Appellee admitted the execution of the conditional sales contract for the machine sold him by Lichty reserving the title to the ice-plant machine until paid for, and default made in the payment, and made no allegation of any defense' to the claim for possession further than to deny that appellant was the party from whom he purchased the machine, and entitled to the possession of the property under the contract made. He alleged no defense to the suit, obviously one to collect the balance of the purchase money due under the contract of sale, by way of counterclaim or set-off, as he had the right to do (§ 8654a, C. & M. Digest; Brunswick-Balke-Collender Co. v. Culberson, 178 Ark. 957, 12 S. W. (2d) 903; Boddy v. Thompson, 179 Ark. 71, 14 S. W. (2d) 240), and admitted having made default in the payment of the purchase money under the terms of the contract he executed. In other words, he admitted making the purchase of the property, the execution of the conditional sales contract retaining the title by the seller until paid for, having made payments of the purchase money under its terms, and only claimed that it had not been executed to Lichty as it appeared to have been in the signature upon the original contract.

The undisputed testimony showed that Lichty had purchased and paid for the plant or machine sold by him to appellee, that it was invoiced and delivered to the appellee ‘by Lichty under the name of one of his trading companies, and that no one else had any interest in or claim upon the property under the conditional sales contract with appellee at the time of the suit brought, and that appellee had made default in the payments under the contract warranting the recovery of the property in the replevin suit by the owner for the collection of the balance of the purchase money due.

The court should have granted a peremptory instruction in appellant’s favor, and for his failure to do so the judgment will be reversed, and the cause remanded with directions to enter a judgment for appellant for the possession of the property or its value, the amount of the purchase money still dne under the sales contract. It is so ordered.