author: McHaney, J.

text:
    Jacobs v. American Bank & Trust Company.
    Opinion delivered November 21, 1927.
    1. Compromise and settlement — effect of settlement. — Where the assignee of a mortgagee claiming title to land refused the mortgagor’s tender of the amount due, and brought action in unlawful detainer against the mortgagor’s tenants and dispossessed them, and the mortgagor intervened in the action, asking for damages, the mortgagor’s subsequent payment of the sum due to the assignee, and his acceptance and surrender of possession to the mortgagor, without mention of the claim for damages, held a complete settlement.
    2. Compromise and settlement — enforcement of settlement.— Amicable settlements of lawsuits are to be encouraged, and where a settlement has been made, and agreed upon by both parties, accepted and acted upon, it will be enforced by the court.
    Appeal from Logan Circuit Court, Northern District; J. 0. Kincaimon, Judge;
    affirmed.

      Anthony Hall, Dave Partain and Cochran <B Arnett, for appellant.

      Rhyne <£ Blair, White S White and Evans é Evans, for appellee.
   McHaney, J.

This is an action of unlawful detainer brought by appellee, being four separate suits against four defendants, who were tenants of appellant. Appellee claimed to be the owner of the land described in the complaint, on which the defendants resided as tenants, and brought this action to dispossess them. Appellee’s title to the property consisted of a mortgage thereon, which it had purchased from the Bank of Ratcliff, and transferred to it in due course by said Bank of Ratcliff, on the 26th day of April, 1926, securing an indebtedness of $3,500 and interest. Appellant had acquired the fee to the property, on which appellee held the mortgage, and, on the 27th day of April, 1926, the day after appellee acquired said mortgage, he tendered to plaintiff a certified check for the principal and interest due on the mortgage, which was refused by appellee, and, two days later, on April 29, he made a legal tender of money in the sum of $3,616.56, which, it is admitted, was the correct amount of principal and interest due at that time to appellee, hut it was again refused. Thereafter, on May '22, appellee brought these suits, in which appellant intervened, setting up these facts, and claimed damages against appellee on account of loss of rents by the wrongful action of appellee in bringing these suits and dispossessing his tenants, appellant claiming that he had been damaged not only thereby, but had been unable to sell or rent tlie property on account of appellee refusing to accept tlie money tendered, and release the mortgage, and in bringing this action, claiming right of possession. Thereafter, on October 30, appellee notified appellant that it was willing to accept the money tendered, and appellant paid his original tender, and it thereafter conceded appellant’s right to the property, and released all claim it had thereto. At the conclusion of the testimony the court instructed a verdict for appellee on the ground that the payment of the amount due on the mortgage while the suit was still pending, without reserving any part thereof for damages, was a settlement of the whole matter as between appellant and appellee. Judgment was entered accordingly, from which comes this appeal.

We think the court was right in holding that the whole matter had been settled between the parties by the payment of the amount of the mortgage and the surrender of the property to appellant by appellee. Amicable settlements of lawsuits are to be encouraged, and, where a settlement has been made, agreed to by both parties and accepted and acted upon, it will be enforced by the court. So, when appellant paid appellee the whole of its mortgage and it surrendered to him all its rights, claims or interest in or to said property, he said nothing about insisting upon any damages, but, by his silence, led appellee to believe that the payment and release ended the whole matter. We think the court correctly so held, and the judgment is accordingly affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Maynard v. Brown.
    Opinion delivered November 21, 1927.
    1. KEFORMATION OF INSTRUMENTS — WHEN RELIEF GRANTED. — Where,’ in reducing an agreement or transaction to writing, either through a mistake common to both parties, or 'through a mistake of the plaintiff accompanied by fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction, the instrument will be corrected, só that it shall truly represent the agreement or transaction according to the purpose and intention of the parties.
    2. Reformation of instruments — sufficiency of proof. — In a suit for reformation of an instrument, the proof to support the relief must be clear, unequivocal and decisive.
    3. Reformation of instruments — relief from inequitable conduct. — Where a note given for the purchase price of land bore interest from maturity, instead of from date, as intended by the parties, the note will be corrected to carry out the intention of the parties, where the purchaser alone noticed the mistake and failed to call the vendor’s attention thereto.
    Appeal from Pulaski Chancery Court; Frank 11. Dodge, Chancellor;
    affirmed.

      Rose, Hemingway, Cantrell $ Loughborough, for appellant.

      John W. Newman, for appellee.
   Mehaeey, J.

The appellee, plaintiff below, filed suit in the Pulaski Chancery Court, alleging that they sold to the defendant the land described in the complaint for $3,200, $500 of which was paid cash and the remainder evidenced by notes. It is alleged that it was first agreed that the deferred payments should be evidenced by 90 notes of $30 each, bearing interest from date until paid at the rate of 7 per cent, per annum. That these notes were evidenced by the deed, which was recorded. That it was afterwards agreed that the deferred payments should be evidenced by one note of $1,500, due and payable March 20, T927, and one note of $1,200 payable in installments of $30 per month, all bearing interest at the rate of 7 per cent, per annum from date until paid; that, in drawing the notes and deed to conform to the latter agreement, error was made in both the note and the deed, in that said $1,500 note w7as drawn to bear interest from maturity instead of from date; that said error was a mistake and oversight by all parties, and now appears in the deed which is recorded in the records of Pulaski County.

Plaintiffs state that they still own and hold the note and hold a lien against the land to secure the payment, and they ask for reformation of the note and deed so as to show that the note hears interest from date instead of maturity. ■

The defendants answered, denying that it was first agreed that the deferred payments should he 90 notes of $30 each and bear interest from date until paid; denies that it was afterwards agreed that the deferred payments should be evidenced by one note of $1,500, due and payable March 20, 1927, and one note for $1,200, payable in installments of $30 per month, all bearing interest at 7 per cent, per annum from date until paid; denies all the material allegations in the complaint, and states that the deed of January 20, 1923, constituted the final and only complete transaction of sale, and that, so far as the defendant was concerned, it was not error or mistake. Alleges that plaintiffs were not in error, and no mistake was made. Asked that the complaint be dismissed.

The chancellor found for the plaintiffs, and decreed that the deed and note be reformed so as to show that the note for $1,500 bears interest at 7 per cent, per annum from date until paid.

The appellant, defendant below, testified, in substance, that he lives on the property; that he is now and for 14 years has been the chief engineer for the Arkansas Cold Storage Company. He had known Sullivan for years, and had inquired of Sullivan for residence property for sale. He was finally told of the property where he now lives, and he inspected the premises and decided that he would take it. That, at his request, Mr. Rose looked at the place, and advised that it was a good buy. This was between Christmas and New Tear, 1922. A few days thereafter Sullivan was notified that witness would take the property. Sullivan called Brown, and, after a day or1 so, in which the papers were drawn, Maynard visited Brown and closed the deal. Witness asked Sullivan whether there had been any one with contagious diseases living in the house, and this was mentioned at the conference that night before Mr. Brown, and both Sullivan and Brown laughed, and answered in the negative. This was a few minutes after the cash payment had been made. There Maynard agreed to pay $500 cash and $30 per month until the property was paid out. After the $500 in cash was paid, Sullivan told witness that Brown would like an arrangement whereby a loan would be obtained in a building’ and loan association when witness had paid down to $1,500, and in this way give Brown the $1,500. Witness had never had much dealing in real estate, and thought this as good a tiling-as he could do, and agreed thereto, signing- an agreement with Sullivan that he was to carry $1,700 fire insurance, and, when it was paid down to $1,500, it should he put in building and loan association and get him his money. Witness identified the original agreement of January 23, 1922, stated that he signed it and presented it to Mr. Brown, and this was introduced in evidence and is as follows:

“M. J. Sullivan & Son Dealers in Beal Estate Little Bock, Arkansas.
“January 23, 1923.
“I agree to carry at least seventeen hundred and fifty dollars ’ fire insurance on house number 2322 Schiller Avenue, being lot 5, block 8, O. F. Shelton’s addition to the city of Little Bock, Arkansas. In case of fire, John Brown and Amelia Ellen Brown are to receive the benefits of the insurance, as their interest may appear. I further agree that, when my notes are paid down to $1,500, to pay John Brown and Amelia Brown in full.
“Alex H. Maynard.”

Witness did not sign ninety notes for $30 each at that time or any other time. If they were drawn he never saw them. No notes whatsoever were signed for the first transaction. The first deed was delivered to him for his inspection before the money was paid over, and he had same at such time. After the delivery of the first deed and the conference, Brown stated that •he would give possession of the premises as soon as he could locate elsewhere. In the meantime some of the neighbors told him that Mrs. Brown had tuberculosis.

“Well, I had closed the dicker, so that kind of upset me, and I went to Mr. Rose with it, and Mr. Rose said, well, the best thing I could do would be to bring suit and have the deal void on that.”

Mr. Sullivan was told, in the meantime, that we were figuring on getting the money back, and that Mrs. Brown had tuberculosis. Sullivan replied that ho had asked about it, and was told that nobody had tuberculosis. Witness visited Mr. Brown, at his place of business, where he was taking freight in at a wholesale house, and was told what witness had heard, and Brown laughed and replied, “Why, no, we haven’t any disease like that,” and stated that he would not mind witness calling Mrs. Brown’s physician, Dr. Green, at the State Hospital. Witness returned to the cold storage plant and called Dr. Green, and was told that Mr. and Mrs. Brown were good friends of his, but that he couldn’t tell a story for Mr. Brown or anybody else in a case of that kind; that Mrs. Brown had an old chronic case of tuberculosis, which she had had ever since her last child was born, about fifteen years ago. That Mrs. Brown had been very careful with herself, and that there was not much danger, but that it would be a good idea to have the house repapered. Witness replied, “No, I just figured on bringing suit to get my money back.”

Either that day or the next, when witness was busy with some repair work, Sullivan came to the cold storage plant with this second deed and note, and Mr. Rose had not been told anything about this agreement relating to the time when witness had paid the contract down to $1,500. In the meantime he had seen Sullivan at' the Eagles’ Club, and had talked about the first transaction, for there had been no second one at the time. Mr. Rose was displeased when he learned witness had signed the agreement mentioned above. When the second deed and note were handed to him, he saw that the note didn’t bear interest for four years. “Under that- condition- — • condition to me, I figured I could fumigate the house and repaper it and paint it inside and make it fit to live in.”

This second deed and note were already prepared, and brought to the cold storage company for his signature, and Sullivan insisted very much that that deed was the very thing that witness should take. "Witness stated that there was no dissatisfaction on his part, but there was with Brown. Sullivan explained that Brown wanted a note that he could take to the bank and get the money. Of course, the agreement witness signed was not bankable paper, and that was the reason Brown was dissatisfied with his first transaction. Witness signed the note at that time, and, before doing so, conferred with Mr. Rose only in a general way. Myers, the bookkeeper, in the office with Sullivan and Maynard, picked up the deed and note, and read both, and gave it to Mr. Rose, telling the latter how the note was drawn, and that witness was saving four hundred — the interest for four years. Witness went ahead and signed it as they advised. All of his dealings other than the conversation with Brown about his wife were with Sullivan, and witness did not know Mrs. Brown, Miss Brown, Biggs or Farris. After the note was signed, and the second deed accepted, witness and Sullivan went to the courthouse, where the latter paid for having the deed recorded, and witness returned to work. Several months after the transaction, in a conversation with Sullivan, witness told him that the note did not bear interest, and if it had borne interest, it would never have been signed.

Cross-examination: It was two or three months afterwards that witness told Sullivan that the note did not bear interest. Mr. Rose had a private office at the cold storage plant. Witness did not go into Mr. Rose’s office to talk to him about the transaction, and was in the office with Mr. Sullivan. All three were in the same office, talking. Witness had one room repapered, and all the woodwork scrubbed and repainted with a solution 'recommended by Dr. Gebauer, who first suggested that all the paper be torn off, and the walls scrubbed and repapered, but, being financially unable to do that, witness replied, “If I have to do that, I can’t take it.”

Dr. Gebauer stated that this renovating might make it safe, but that he wouldn’t like to live in it himself. Witness took a solution of chloride of lime and hot water, and hired a man for a week, scalding the house and repainting, and repapered one room, and burned candles recommended for fumigating houses, before his family moved in. Witness would not have gone to the expense of repapering a room and painting the woodwork inside if it was in good shape. Witness did not say that Sullivan and Rose were in the same room when the matter was discussed, but said that Sullivan, Myeris and himself were in Myers’ office. Witness did not discuss it with Rose, but Myers walked in his office, and showed him the note and deed, and Rose replied, “Well, tell him to sign it.” Nothing was said to Sullivan about the note not bearing interest there. Sullivan brought the note and .deed, and did not even read it, and asked witness to sign it. At that time witness had made objections to them about the first transaction.' He had told Sullivan that he was going to have the first transaction set aside. Witness had not seen any lawyer at that time about it, but had just talked to Rose and Sullivan.

Redirect examination: “Since the conversation with Sullivan, about two months after the transaction, about the note bearing interest, nothing was heard until my last payment on the $1,200 note, which was payable in monthly installments, that is, in May, 1926, when I got a letter from Mr. Newman. When the twelve hundred dollar note was paid out, about May 20, 1926, of course no more payments were made, for the $1,500 note wasn’t due until January 20, and I was figuring on taking this up when it came due. ’ ’ That was the first time witness had heard from Brown or any of them about the note. Witness saw the note at the bank when he paid off the $1,200 note, and saw that it had the notice attached to it that it did not draw any interest.

C. E. Eose testified, in substance, that Mr. Maynard had an incurable throat trouble, and that he had advised him to be very careful against tuberculosis. Witness went out and looked at the house, and it looked like a good house for the money. He told Maynard to be sure there was not any tuberculosis around the house to get into his bad throat. So he told witness that both Sullivan and Brown said there had been no tuberculosis, and he bought the house. A few days later he told -witness that things had -been misrepresented, and he had learned that Mrs. Brown had had tuberculosis for twenty years. Witness advised him to bring suit for the return of his money, and witness told Sullivan that he would get a lawyer and bring suit. But witness stated that Mr. Maynard -wanted the house very badly, so he went to see Mr. Brown, and reported, and Mr. Brown again told him that there had been no tuberculosis in the house. Witness said he never saw the first' papers, but, when the last papers were brought to him, Mr. Myers brought them in, and he saw the note bore no interest, and' Mr. Sullivan and Mr. Maynard were out in Mr. Myers’ office, and he called Mr. Maynard in and told him that he would save $400 or $500, and,for him to sign the note, and Maynard signed it. ■

M. J. Sullivan testified that he negotiated and closed the deal for the property, and that Maynard agreed to pay $3,200, $500 cash and assume a mortgage of $1,500, and the balance in notes of $30 a month, notes on or before, each note to bear its own interest. A deed was executed on these terms. Witness identified the first deed, which was introduced, and that deed, which had been recorded, recited a consideration of $3,200; $500 was acknowledged as having been paid cash and $2,700 evidenced by a note of even date, with 90 installments of $30 per month, each installment to bear interest from date at the rate of 7 per cent, per annum.

The above deed was executed, delivered to Maynard and put on record. Thereafter, the record does not show how long, Brown’s daughter went to the bank, and, because of some suggestions made to ber about the notes, the Browns concluded to get Maynard to give a note for $1,500 instead of the monthly installments of $30 per month. Witness took the matter up with Maynard. His understanding was that the interest would be paid when the note became due. He took it to Maynard, and, after consultation with .Mr. Rose, Mr. Maynard signed the note. About a month afterwards witness was told by Maynard that the note did not bear interest. Witness identified certified copy of the second deed, which was to the same land and for the same amount of money, being a $1,500 note bearing interest from maturity instead of the installments of $30 per month. This deed was executed, delivered and put on record.

Brown testified, in substance, that the trade was made, agreed to, and that there were 90 notes made and signed by Maynard, and that they bore interest from date. Witness had nothing’ to do with the handling of the second transaction; his daughter did it entirely.

Appellant contends, in the first place, that there, was no mutual mistake. Our conclusion from the evidence is that there was a mutual mistake in the sense of the law, and also inequitable conduct on the part of the defendant. It is said: “Reformation is appropriate, when an agreement has been made, or a transaction has been entered into or determined upon, as intended by all the parties interested, but, in reducing such agreement or transaction to writing-, either through the mistake common to both parties, or through the mistake of the plaintiff accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction actually made or determined upon according to the real purpose' and intention of the pai’ties.” Pomeroy’s Equity Jurisprudence, § 870.

We agree with learned counsel for appellant as to the nature of proof necessary to support the contention that the proof must be clear, unequivocal and decisive. We think the proof in this case meets the rule announced by the cases referred to by appellant.

This contract wais> made by the parties, and about its terms there is no controversy and no conflict in the evidence. It is true Mr. Maynard says he did not sign ninety notes, but he does agree that there was to be a note given, payable in monthly installments of thirty dollars each, and that these installments were to bear interest at the rate of seven per cent, per annum from date. He received the deed to the property with this recital, and it was placed on record. He does not dispute any of the facts contained in that deed, so that was the contract or agreement made between the parties. After-wards Brown’s daughter learned they could not use the note at the bank in that form, and Sullivan went to Maynard and suggested the giving of a $1,500 note instead of the thirty dollar notes, or note with $30 installments. Nobody claims that there was anything said about the interest or about any change in the interest, so that, when that agreement was reached, both parties understood that the interest would be the same as in the original notes. Mr. Maynard’s testimony shows he believed that, because no contention is made that anything was said about the interest, but he says, after he saw the note, he discovered that it did not bear interest until maturity, but that he did not tell Sullivan, and Sullivan had not read the note. According to Mr. Maynard’s own testimony he discovered this mistake, knew that Sullivan did not know it, knew that Sullivan was transacting business for Brown, and he did not tell Sullivan anything about the interest until some months afterwards. Mr. Maynard went to ■ Mr. Bose, who was Maynard’s adviser, and Bose discovered that it bore interest from maturity instead of date. Sullivan and Maynard were in the adjoining office, and Bose had Maynard called in, but not Sullivan, and told Maynard he was making four or five hundred dollars in this way, and for him to sign the note. Still Sullivan knew nothing about it, and Mr. Maynard, according to bis own testimony, knew tbat Sullivan did not know it, because he said Sullivan bad not read tbe note. It is contended, however, tbat some one told Mr. Maynard tbat persons bad lived in tbe bouse who bad tuberculosis. Mr. Maynard’s own testimony on this, however, shows tbat be had tbat in mind when be made tbe trade, tbat is, long before this second transaction, and be asked both Sullivan and Brown at tbe time be paid the five hundred dollars, after be bad consummated tbe deal. There was no misrepresentation. Maynard said Brown told him at the time to call Dr. Ponder, which be did. Mr. Rose testifies tbat be advised Maynard to bring suit to recover bis five hundred dollars back, but this was all after they bad • discussed the tuberculosis, but be said Maynard wanted tbe place very badly. Tbe whole testimony shows tbat Maynard intended to take it anyhow; be thought be was getting a bargain, at any rate he wanted tbe place under tbe contract be bad made, so it appears that the tuberculosis had nothing to do with the failure to put in tbe note interest from date.

As we have already said, Mr. Maynard did not know but what it was in there until be came to sign it, and no one testifies tbat the subject of interest from maturity was ever mentioned. Mr. Biggs drew tbe note and tbe last deed, and Mr. Brown’s daughter told him be was to pay tbe interest when tbe note became due, and Mr. Biggs took tbat to mean interest from maturity. Miss Brown meant from date, but not payable until tbe note became due.

When Sullivan went to Brown with the proposition to make tbe larger note for several small notes, if be bad wanted to rescind the trade because be learned about the tuberculosis, be would not have said, “I am satisfied, Brown is tbe one who is dissatisfied,” and if he bad intended to have a change so as to pay interest from maturity and not from date, be would have mentioned that, but the matter was not mentioned.

We therefore conclude, according to tbe testimony, there was never but one agreement made with reference to interest, and that both parties agreed to this, and tbat a mistake was made in writing tlie instrument. This being true, when Mr. Maynard discovered that the note bore interest from maturity instead of date, and knew that Mr. Sullivan did not know it, and knew he had not read the note, and after being told by Mr. Rose that he would make four or five hundred dollars by that transaction, and signed the note without ever telling Sullivan about the mistake, this was, we think, inequitable conduct, and would entitle the plaintiff to a reformation, and we think the proof was clear, unequivocal and decisive, and that the chancellor’s finding was correct.

The decree is therefore affirmed.


text:
    Adams v. McCombs.
    Opinion delivered November 21, 1927.
    Courts — appeal prom court op common fleas. — Acts 1915, p. 1438, creating- the Ashley County Court of Common Pleas, does not require, by § 9, the giving of a bond as a prerequisite to- the right of appeal to thei -circuit court, failure to give such bond not depriving the court of jurisdiction.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    reversed.

      G. P. George and II. II. Hays, for appellant.

      U. J. Cone, for appellee.
   McHaney, J.

Appellants, S. L. Adams and Cf. A. Lindsey, are partners, doing business under the firm name of Adams & Lindsey, and brought a suit in the common pleas court of Ashley County against appellee io recover for certain losses in weights of cotton. The complaint was made more definite and certain on appellee’s motion, and, on his demurrer to the complaint being overruled, appellee filed an answer and cross-complaint. On a trial of the case on November 16, 1926, the common pleas court entered judgment in f-avor of appellants in the sum of $307.14 on their complaint, and in favor of appellee on Ids cross-complaint against appellant in the isnm of $288.82, from which both parties prayed and were granted an appeal to the Ashley Circuit Court. Within the time alloAved by law appellants filed with the clerk of the common pleas court an affidavit for appeal to the. circuit court, and the clerk made an indorsement thereon, allowing' the appeal. No appeal bond was filed by appellants, and no supersedeas Avas issued staying the judgment of appellee on his cross-complaint. Also, within the time, the appellee perfected his appeal to the circuit court by filing his notice of appeal, affidavit for appeal and appeal bond, but no question is raised as to the regularity of his appeal. On January 17, 1927, that being a day of the regular term of the Ashley Circuit Court, appellee filed a motion to dismiss the appeal of the appellants, for the reason that no appeal bond had been filed, as required by the act creating the Ashley Court of Common Pleas, and same was submitted to the court on said day, whereupon the court sustained the motion to dismiss the appeal of appellants, and a judg'ment was entered, dismissing said appeal, for the' reason that the court held that the filing of the bond was essential to give the circuit court jurisdiction on appeal from the court of common pleas. From the .judgment of dismissal appellants have appealed to this court.

Only one question is presented by this appeal, and that is, Avhetlier the act creating the Ashley County Court of Common Pleas, .same being act No. 339 of the (leneral Assembly of 1915, pago 1438 of said Acts, requires the giving of a bond as a prerequisite to the right of appeal, and this is to be determined,by á construction of § 9 of said act, which reads as folloAvs :"

■ ‘ ‘ That any person aggrieved by any final judgment rendered by said court, except as to judgment of dismissal for want of prosecution, may take an appeal to the circuit court, within thirty days after rendition of said judgment, by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeal from justices’ courts to the circuit court. Provided, that the affidavit for appeal may be made by the party, his agent or attorney; and provided further, that, if the court has adjourned, the appeal shall be allowed by the clerk, when notice of the appeal, in such case, shall be served upon the appellee, his agent or attorney of record, but, if allowed by the court in open session, upon motion of the appellant, and the filing of the affidavit and bond before the final adjournment of the court, no further notice to the adverse party shall be necessary.”

We do not think it was the intention of the Legislature, by enacting said act, to make it impossible for the poor and unfortunate, or persons who may be parties to actions in their fiduciary capacities, such as executors, administrators, guardians, etc., to take an appeal to the circuit court from an adverse judgment of the court of common pleas, which is the necessary effect of said act, if the construction placed upon it by the circuit court is correct. If an appeal from such court can only be taken by giving a supersedeas bond, then á large class of persons will be denied the right of appeal. The con-struction placed on the act by the circuit court would require an arbitrary classification of litigants, one of whom could appeal, being able to make the appeal bond, and the other of whom, on account of poverty or fiduciary capacity, oouíd not, the fiduciary class not being required to -give a bond under the general law 'and many holdings of this court, whereas, on the other hand, the rich or well-to-do' could appeal from aln adverse decision of such court, but the poor could not. Therefore we hold that the provision of this statute requiring a bond is directory merely, and that the failure to give the bond does not deprive the circuit court of jurisdiction on appeal.

This court had this same statute under consideration in the case of Brown v. Kirkland, 156 Ark. 542, 246 S. W. 851, but the question now presented was not involved there.

By following the procedure for appeals allowed from the courts of justices of the peace, appellant could have appealed without giving the bond, but, of course, his failure to supersede the judgment against him would not stay execution. For the error in sustaining the motion to dismiss and in dismissing the appeal, the cause will be reversed and remanded, with directions to overrule said motion, and for further proceedings not inconsistent with this opinion.


text:
    Ætna Like Insurance Company v. Alsobrook.
    Opinion delivered November 21, 1927.
    Insurance — evidence of suicide. — In an action on a life insurance policy, evidence showing that the barrel of a shotgun must have been ljeld in the insured’s mouth at the time it was fired, the location of insured when found, the fact that no other person had been near, and that he had just been arrested, charged with a felony, held to establish a suicide, rendering 'the court’s refusal to instruct a verdict for insurer error.
    Appeal from Ouachita Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      Geo. W. Hays and Owens & Ehrwum, for appellant.

      Fred Morton, T. J. Gaughan, J. T. Sifford, J. E. Gaughan and Elbert Godwin, for appellee.
   McHaney, J.

On March 18, 1925, the appellant issued and delivered to B. B. Alsobrook, son of appellee, a policy of life insurance, insuring the life of said B. B. Alsobrook in the sum of $2,000, in which appellee was named as beneficiary, which policy contained the following provision: “If the insured shall commit suicide within one year from the date hereof, while sane or insane, the company will be liable only for an amount equal to the premiums paid in cash thereunder.”

On Miarch 1,7, 1926, less than one year from the date of said policy, said B. B. Alsobrook, having theretofore been a mail carrier, was arrested by a United States Marshal on a warrant charging him with embezzlement of United States mail. This was about 6:30 in the morning. The marshal informed Alsobrook that he would take him to Pine Bluff on this warrant, and Alsobrook asked permission of tlie marshal to get a car to go in, stating- that he could do so in a few minutes, wliieli permission was granted by the marshal. Pie left the marshal, and went immediately to the room of his friend, Bale Garrett, and borrowed his car, stating- that he was going to Pine Bluff, and appeared to be in quite a hurry. A short time later he drove the car to the home of his friend, J. W. Crosley, and there borrowed a double-barrel breech-loading- sixteen gauge shotgun, stating* that he wanted the gun to go hunting, and was in quite a hurry, promising to bring- the gun back that evening. Crosley cautioned him about the gun, as it was loaded. Alsobrook was perfectly familiar with the gun, as he had often borrowed it before. The gun was placed in the rear end of the Ford touring car. Alsobrook was not seen thereafter until about 7 :30 that morning, when he was found on a by-road, which was not frequently traveled, not being- a regularly traveled road, lying beside the car, across the stock of the gun, with his head to the rear of the car, dead. Ilis face was bloody, and a Mr. Lea, who discovered him, although well acquainted with him, did not at first recognize him. He made an examination, and found that Alsobrook was shot in the mouth, the shot ranging from the roof of the mouth toward the back of the head, without any visible wounds or powder-burns on the outside of his mouth or his face anywhere; that the skull was torn to pieces by the shot, the back of his head being-soft and mushy, but the skin on the outside of his head was not broken, none of the shot passing- through the head to the outside; 'that one of his front teeth was missing. On an examination of the gun it was found to be the same gun he had borrowed from Mr. Crosley, the right-hand barrel of which had been fired, and the hammer on the other barrel cocked,' and that the barrel of the gun wa-s about 28 inches in length. It could not be told whether the roof of the mouth showed powder-burns, on account of the excessive amount of blood. The front door of the car was open,- and there were no tracks around the car except his own, and no sign to show that any one else had been there, that there had been a struggle-with a coid ending enemy, ryor were there any powder-burns on his clothing. The territory he was found in was hot good for squirrel hunting, and it was the closed season on quail. It was shown that Alsobro-ok was a man of a happy disposition, and the witnesses who saw him on this fateful morning agree that he showed no signs of worry or trouble. Expert evidence was introduced to show that powder from a sixteen-gauge shotgun will burn anywhere from six to eight feet from the. muzzle of the gun, and that the shot begin to scatter immediately after leaving the barrel; that the closer the barrel of the gun is to the object, the more the powder would burn, and the narrower the spread of the load. The expert answered a hypothetical question that, assuming that the entire load of the shot entered the roof of the mouth with no powder burn, wound or mark on the face, and the whole top of the head was soft, and stated that in his opinion the gun was in the deceased’s mouth at the time of its discharge.

At the conclusion of the evidence appellant requested the court to instruct the jury to find for the appellee in the amount of premiums paid by the insured, $96.12, and costs to the time of filing the answer, offering to confess judgment for that amount, and for the appellant for the costs incurred subsequent thereto, which the court refused to give, and submitted the case to the jury on appellee’s theory of an accidental death, which returned a verdict against appellant for $2,000, and it has appealed.

We think the court erred in refusing to give appellant’s requested instruction No. 1. Under the clause of the policy already quoted, the company’s liability was limited to the amount of premiums paid by the insured in case of suicide within one year from the date of the policy. We think the undisputed evidence, in fact all the evidence, clearly establishes the fact that the insured committed suicide, and that it overcame the presumption of law against suicide and the presumption that he was killed accidentally, rather than by suicide. As was said by this court in the case of Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742, cited with approval in New York Life Ins. Co. v. Watters, 154 Ark. 569-570, 243 S. W. 831: “In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was self-inflicted; it is presumed to have been accidental until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being*.” Here we think the contrary does appear, and that it is undisputably shown that death was intentionally self-inflicted. And, as was said in the case of Watters, supra, “after a careful consideration of the facts and circumstances in the instant case, we are unable to account for the death of the insured upon any other reasonable hypothesis than suicide. ’ ’ And, as was again said in the same case, “reasoning upon the undisputed physical facts in the case, we are unable to evolve any reasonable theory by which the insured could have been accidentally shot.”

It was shown conclusively, we think, that, unless the barrel of the gun had been in Alsobrook’s mouth at the time it was fired, he could not have received the wound he did receive without also receiving a wound on the outside of the face, and, if the gun were close enough, would have been burned by. the powder. We think the muzzle of the gun must, of necessity, have been in the insured’s mouth at the time it was fired. And, taking into consideration his location, the fact that no other person had been about there, the fact that he had .just been arrested, charged with a felony, and all the other facts and circumstances heretofore set out, we think the conclusion is irresistible, and much stronger even than the Watters case, that he committed suicide.

The judgment will therefore be reversed, and judgment will be rendered here against appellant for $96.12.


author: MoHaney, J.

text:
    Watson v. Keebey.
    Opinion delivered November 21, 1927.
    Replevin — validity of bond. — In an action of replevin in Which defendant was arrested, the bond obtained from defendant by-duress, by which he agreed to return the property or pay its value, held not to sustain a judgment against the surety thereon, as the bond did not comply with Crawford & Moses’ Dig., § 8645, providing for a bond conditioned on abiding order of judgment of the court.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed in part.

      W. G. Adamson, for appellant.

      Melbourne M. Martin, for appellee.
   MoHaney, J.

Keebey brought replevin in the Little Rock Municipal Court against Watson, alleging that he was the owner and entitled to the possession of a diamond stud of the value of $130; that the defendant was in possession thereof, and unlawfully detaining the same, and set up the other jurisdictional matters in replevin suits. He further alleged that he believed the diamond stud had been concealed with intent to defeat this action. An order of delivery was issued, commanding the sheriff to take the stud from Watson and deliver the same to Keebey upon his giving bond as required by law, and further directing the sheriff, in the event he could not find said diamond stud, to take the body of said Watson and have him before the court on the return dáte to answer the claim of plaintiff. The sheriff served the order of delivery, .and arrested appellant, not being able to find the property. Appellant executed to the sheriff, with one Johnson as surety, the following bond: “We undertake and are bound to Homer M. Adkins, sheriff of Pulaski County, Arkansas, and P. Gr. Keebey, plaintiff herein, in the sum of two hundred and sixty and no-hundredths dollars ($260), that the defendant, Walter Watson, shall abide the order and judgment of the court in this action, and that he will deliver to the plaintiff the property sought to be replevied in his complaint, or, in lieu thereof, will pay to him the value of said property, as the court may direct, if the plaintiff prevails in this action, and that said defendant, Walter Watson, shall render himself amenable to the order of the court, and that he will not depart from said court "without exoneration from this bond and the order of the court.”

This bond was prepared by counsel for appellee and delivered to the sheriff, to be signed by appellant and surety satisfactory to the sheriff, before appellant should be released. We think it clearly appears from the evidence that appellant and his surety were required to execute the foregoing bond before' his release by the sheriff. The municipal court rendered judgment against appellant for the stone or its value, but refused to render judgment on the bond, and both parties appealed to the circuit court, where the case was tried de novo, and a verdict rendered by the jury for the plaintiff for possession of the property, or its value, which was fixed at $80. Thereupon the court entered a judgment in favor of appellee against appellant, and against Johnson, surety on the cross-bond, for possession of the stone or its value, $80, from which comes this appeal.

Appellant contends that, under the statute, § 8645, C. &. M.' Digest, he was only required to give an appearance bond, and that the bond which he did execute was a bond net' only for his appearance, but a forthcoming bond, by which he agreed to- return the property or pay its value, and that he was required to execute this bond' by duress in order to obtain his release from arrest. Section 8645 of the Digest reads as follows:

“The defendant" shall be, entitled to be discharged from such arrest'at any time before final judgment had in the cause, upon executing to the officer who shall have made such arrest, with. the. addition of his name "of office, a bond in a penalty of at least double the value of the property described, as sworn to in the affidavit, with such security as shall be approved by such officer, conditioned that such defendant shall abide the order and judgment of tlie court in such action, and that he will cause special bail to be put in, if the same be required. ’ ’

This section has been many times construed by this court. Appellee relies for an affirmance of the case upon O’Brien v. Alford, 114 Ark. 257, 169 S. W. 774, where a bond identical in form and effect was upheld by this court; but the distinction between this case and that is, that the bond in that case was voluntarily entered into by the defendant, whereas in this case, as above stated, it is shown to have been entered into unwillingly, and under duress or coercion, in order to obtain his release.

In the case of Daniels v. Wagner, 156 Ark. 198, 245 S. W. 487, this court held that the above section of the statutes only requires a bail bond where the defendant is arrested under a capias attached to the order of delivery, and after analyzing the situation-in that case,'the court said: “We conclude therefore that this bond is a bail bond under the provisions of § 8645, Crawford & Moses’ Digest, and not a delivery bond under the provisions of § 8649, Crawford & Moses’ Digest.” See also Jones v. Keebey, 159 Ark. 586, 252 S. W. 591, and Lane v. Alexander, 168 Ark. 700, 271 S. W. 710.

Since appellee and the officers had no right to demand of appellant a bond other and different from that prescribed by the above section of the Digest, the defendant being in custody under the capias, and since we have concluded that the execution of the bond in this case was procured by duress, we think the court was in error in rendering judgment against'the surety on the bond. For this error the case will have to be reversed. It is so ordered.


author: Hart, C.-J.

text:
    Graham v. Graham.
    Opinion delivered November 28, 1927.
    1. Wills — fraud—jurisdiction.—Equity has no jurisdiction to set aside a will for fraud or undue influence in its making, the legal remedy in such cases toeing adequate.
    ■2. Wills — fraud in procuring probate. — Evidence held not to establish that fraud was perpetrated on the probate court in procuring a will to be admitted to probate.
    3. Wills — validity of order admitting will to probate. — An order of the probate court admitting a will to probate is not void in failing to contain an affirmative statement of all facts necessary to admit the will to probate, as it will be presumed that the court acted within its jurisdiction.
    4. Wills — collateral attack on probate. — Where an order of the probate court admitting a will to probate was at most erroneous and not void, and no appeal was taken, a proceeding to set aside the order admitting the will to prolbate for fraud was a collateral attack.
    5. Court — jurisdiction of probate court. — The probate court is a court of superior jurisdiction, and, within its jurisdictional rights, its judgments import absolute verity.
    6. Wills — validity of order admitting will to probate. — An order of the probate court admitting a will to probate was not rendered void by failure to recite all the facts upon which the court acted, as the court, in admitting the will, was acting within its ordinary jurisdiction and upon the performance of prescribed conditions.
    Appeal from Sebastian Circuit Court, Greenwood District; J. Sam Wood, Judge;
    affirmed.
    statement by the court.
    These two oases were consolidated on appeal because the same issues are involved in each case. In No. 113, Renaldo Earl Graham, a minor, by his mother and next friend, Sadie Graham, filed a petition in the probate court against W. B. Graham to set aside the judgment of the probate court allowing the will of W. E. Graham, deceased, to be admitted to probate. The petition to set aside the judgment admitting the will to probate was filed more than a year after the judgment of the probate court admitting the will to probate. The will was made an exhibit to the petition, and the body of it is as follows:

      “Know 'all 'men to whom these presents may come, that I, W. E. Graham, being of sound and disposing mind and memory, knowing the uncertainties of life, and in my crippled condition it may come at any time, and desiring to dispose of my worldly affairs as I think right and just, do make and declare this to be my last will and testament.
    “ (1). I direct that at my death my executor hereinafter named pay my just debts, including my funeral expenses, with such protection and ornament to my grave as he may think right. (2). I give and bequeath to1 my former wife, Sadie Graham, one cent, and to her child, Renaldo Graham, born to her during the time we were husband and wife, I give and bequeath the sum of one dollar, in full of all demands against my estate. (3). I give and bequeath to my brother, R. A. Graham, one cent, and to my sister, Mrs. M. P. Spessard, the sum of $10, to be in full of all demands by them against my estate. (4). To my dear father, W. B. Graham, and my brother, L. 0. Graham, I give and bequeath the residue of my estate, real, personal and mixed, for them to share and share alike, and suggest that my father control the same until my brother becomes twenty-one years old. (5). I nominate, constitute and appoint my father, W. B. Graham, the executor of my estate, and direct that he see that the bequests heretofore made be carried out.
    “In testimony whereof I have hereunto set my hand this 29th day of September, 1917.”
    The judgment of the probate court admitting the will to probate reads as follows:
    “On this day comes on for probate an instrument of writing purporting to be the last will and testament of W. E. Graham, deceased. And it appearing to the court from the testimony of Alvin NoNabb, the surviving subscribing witness to said will, that said instrument, was signed at the time and place and by the person therein named, and that same was signed by the testator in the presence of both attesting witnesses to said instrument, and that said witnesses signed said instrument in the presence of said testator and in the presence of each other, and that said testator declared it to be his last will and testament; that said testator, at the time of signing said instrument, was upwards of twenty-one years of age, and of sound and disposing' mind and memory; and it further appearing that the testimony of B. L. Ware and Jess McConnell is sufficient to prove that the signature of Ezra Meek, .deceased, the other attesting witness to said instrument of writing*, is genuine; and it further appearing* to the court that W. B. Graham, father of the testator, is named in said last will and testament as executor, and that he has filed a bond with good and sufficient security, the court being well and sufficiently advised in the premises. It is therefore considered, ordered, adjudged and decreed that said instrument be and the same is this day admitted to probate in common form as the last will and testament of W. E. Graham, deceased, and it is ordered that bond of said W. B. Graham be and the same is this day approved and hereby approved by the action of the clerk of this court, in vacation, of the 19th day of May, 1925, in issuing*letters testamentary unto W. B. Graham.”
    The grounds relied upon in the petition to set aside the order admitting the will to probate will be stated under appropriate headings in the opinion. Other facts appearing in the record will also be stated or referred to in the opinion. The probate court refused to set aside its order admitting the will to probate, and an appeal was duly prosecuted to the circuit court. The circuit court Was of the opinion that the said petition should be dismissed, and judg'inent was entered accordingly. The ease is here on appeal.
    Oase No. 114 was a petition by the same parties to quash the judgment of the probate court admitting said will to probate. The petition contains precisely the same allegations as the petition in No. 113. The circuit court sustained a demurrer to the petition, and it was adjudged that the petition should be dismissed. This case is also here on appeal.

      John I). ArbucMe and Dobbs £ Young, for appellant.

      Holland £ Holland, for appellee.
   Hart, C.-J.

The record shows that the petition filed to set aside the judgment of the probate court admitting the will of ~W. E. Graham, deceased, to probate, was filed more than one year after said will was admitted to probate in common form.

In Jenkins v. Jenkins, 144 Ark. 417, 222 S. W. 714, it was held that a judgment admitting a will to probate in common form, as was done in the case at ibar, is a final order or judgment, 'from which an appeal lies within twelve months after rendition thereof. It walsi further held that an infant heir will not be permitted to appeal from the probate in. common form of his ancestor’s will after the year provided by statute to appeal has expired, the statute containing no saving clause in favor of infants. In this connection it may be stated that the statute relating to appeals from the probate of wills contains no saving clause in favor of nonresidents or persons absent from the State or under disabilities. See also Morris v. Raymond, 132 Ark. 450, 201 S. W. 116. In the recent case of Dunn v. Bradley (Ark.), 299 S. W. 370, it was held that a probate court is a court of record, and its judgment, under the statute, is, after the lapse of the term, a final judgment until vacated or set aside in some manner authorized by law.

The force of these decisions is recognized by counsel for appellant in the case at bar, but it is claimed that the order of the probate court in question should be set aside because the probate of the will was obtained by fraud practiced upon the court. The fraud alleged in the petition is that the testator did not have the mental capacity to execute a will at the time the purported will was signed by him. It is further alleged that the instrument so probated was the result of undue influence upon the testator by his father, W. B. Graham, one of the principal beneficiaries in the will. It is alleged that the undue influence consisted in W. B. Graham falsely representing to his son that Renaldo Earl Graham was not his -son, but was the offspring of the adulterous conduct of his mother, Sadie Graham, while she was living with the testator as his wife. Even a court of equity could not set aside a will on the grounds alleged. The reason is that equity has no jurisdiction to set aside a will for fraud in obtaining it. Ewell v. Tidwell, 20 Ark. 136. In Gray v. Parks, 94 Ark. 39, 135 S. W. 1023, it was again held that a court of equity has no jurisdiction to determine the validity of a will. The court said that the remedy at law for setting aside a will on account of any fraud or undue influence in procuring it was complete. The reason is that, under our Constitution, such jurisdiction is vested in probate courts. This rule was recognized in Dunn v. Bradley, supra, where it was held that equity had jurisdiction to set aside the judgment of a probate court admitting a will to probate only where fraud was practiced upon the court in obtaining the judgment.

In a case-note to 18 Ann. Cas., at page 807, it is said that it is a well established rule that, in the absence of statutory provisions therefor, a court of equity has no jurisdiction to set aside a will or its probate on the ground of fraud, and many cases are cited in support of the text.

In Broderick’s Will, 21 Wall. (U. S.) 503, a comprehensive statement of the reasons for the rule was given by Mr. Justice Bradley as follows:

“Whatever may have been the original ground of this rule (perhaps something in the peculiar constitution of the English courts), the most satisfactory ground for its continued prevalence is that the constitution of a succession to a deceased person’s estate partakes, in some degree, of the nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded, as upon res judicata, by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and consequently that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud, and that the result attained should be firm and perpetual. The courts invested with this jurisdiction should have ample powers both of process and investigation, and sufficient opportunity should be given to check and revise proceedings tainted with mistake, fraud, or illegality. These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings. And one of the principal reasons assigned by the equity courts for not entertaining bills on questions of probate is that the probate courts themselves have all the power and machinery necessary to give full and adequate relief. ’ ’

Again, it is contended that a fraud was practiced upon the court in obtaining the probate of the will by concealing from the court that Renaldo Earl Graham was a child of the testator, and that he and his mother were not residents of the State of Arkansas, and knew nothing about the application for the probate of the will by W. B. Graham. We have copied the will in our statement of facts, and item 2 expressly states that he gives to his wife, Sadie Graham, one cent, and to her child, Renaldo Earl Graham, born to her while she and the testator were husband and wife, the sum of one dollar, in full of all demands against his estate. Item 4 of the will gives to W. B. Graham and L. 0. Graham, a brother of the testator, the rest of his property. Thus it will be seen that the will on its face shows the existence of Renaldo Graham, and the will of the testator that he should not participate in his estate. Then, too, there appears in the record a petition filed by Renaldo Earl Graham in the probate court, which admitted the will to probate, for a guardian to be appointed for said minor. The petition states that he is a minor of the age of eleven years, and resides .with his mother in the city of Birmingham, in the State of Alabama. It is also alleged that Walter Graham was appointed executor of the estate of Earl Graham, deceased, and that he appears to be unfriendly to the child, Renaldo Earl Graham. This petition was filed on tlie 17th clay of May, 1926. The will was admitted to probate by order of the probate court, on June 15,1925. Thus it will be seen that the petition for the appointment of a guardian was filed with the probate court before the expiration of a year from the time that the will was admitted to probate. Under these circumstances, it cannot be said that the existence of the minor was concealed from the probate court, and that fraud in this respect was practiced upon the court in procuring- the will to be admitted to probate.

The principal contention of counsel for the appellant is that the order of the probate court admitting- the will to probate was void because it does not contain an affirmative statement of all the facts requisite to admit a will to probate. The will was dated at Midland, Arkansas, September 25, 1917, and purports to have been witnessed b3r Alvin McNabb and Ezra Meeks. The affidavit of Alvin McNabb appears in the record to prove the will. Ezra Meeks had died, and proof was made of his signature. At most it could only be said that the order admitting the will to probate is erroneous, and not void. No appeal was taken from the oidor admitting- the will to probate within the time prescribed by law, and this becomes a collateral attack on the judgment. It is well settled in this State that the probate court is a court of superior jurisdiction, and, within its jurisdictional rights, its judgments import absolute verit.v, the same as other superior courts. The rule in such cases is that, where the record is silent with respect to amr fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction. Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. 183; Flowers v. Reece, 92 Ark. 611, 123 S. W. 773, and cases cited; and Massey v. Doke, 123 Ark. 211, 185 S. W. 271.

This rule with respect to probate courts being, in general, courts of superior jurisdiction, is also recognized, but it is contended that the facts alleged in the petition bring the case within the exemption to the rule. In Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490, the court quoted with approval from Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. ed. 959, the following:.

“Bid, where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such oases upon the record.”

In the application the court said that the power to remove the disabilities of minors is a special power conferred upon the circuit court, and is to be exercised in a summary manner and. not according to the course of the common law. Hence it was held that the order removing the disabilities in that case was void because it did not show that they were residents of the county in which the circuit court making’1 the drder was held. Again, in Oliver v. Routh, 123 Ark. 189, 184 S. W. 843, it was held that the authority of the probate court to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court by statute, and such power is to be exercised in a special manner, and not according to the course of the common lawr. Hence it was said that, in all such cases, the facts essential to the exercise of the special jurisdiction must appear from the record.

Again, in Ex parte Tipton, 123 Ark. 389, 184 S. W. 798, the court said that, under our Constitution relative to homesteads, it was intended to preserve for the minor the homestead exemption of the parents after their death and to prevent the sale thereof for the debts of the parents during the minority of the children. Hence it was held that the probate sale of the homestead by the-guardian, in cases where there were debts, is absolutely void. In other words, the court held that the jurisdiction of the probate court to sell the homestead of the minor should show that there were no debts, and that, the record being silent on that point, the order of sale was void. The reason is that, when the provision of our Constitution relative to the exemption of homesteads from sale for the payment of debts was considered in connection with our previous decisions on the question, the court considered that the probate court was acting in the premises upon the performance of prescribed conditions, and that the record should affirmatively show that there were no debts. In short, it was held that a finding that there were no debts was a condition precedent to the exercise of jurisdiction by the probate court in the sale of homesteads, and that the facts essential to the exercise of the jurisdiction must appear upon the face of the record.

In the case at bar the probate court, in admitting the will to probate, was acting under the powers given it by the Constitution, and over a question within its ordinary jurisdiction and upon the performance of prescribed conditions. Hence it was not necessary that all the facts upon which the court acted should appear upon the face of the record. If the court acted erroneously in the premises, the remedy would be by appeal; but, under the principles of law above announced, it could not be said that the judgment was absolutely void. The matters involved in the appeal and in the application for a writ of certiorari to quash the judgment of the probate court have been decided adversely to the contention of counsel for appellant in Dunn v. Bradley, supra, and no useful purpose could be served by again entering into a review of our former decisions cited and referred to in that case.

The result of our views is that the judgment of the circuit court in each case was correct, and will therefore be affirmed.


author: Hart, C. J.,

text:
    Curtner v. Bank of Jonesboro.
    Opinion delivered November 28, 1927.
    1. Damages — duty to minimize damages. — Where a party is entitled to the benefit of a contract, and can save himself from loss arising from a breach of it at a trifling expense or with reasonable exertion, it is his duty to do so, and he can charge the delinquent only with such damages as, with reasonable endeavor and expense, he could not prevent.
    2. Vendor and purchaser — breach op contract — damages.— Where, upon an exchange of lands, an agreement was made to furnish abstracts, but one grantor failed to do so, whereupon his grantee, by reason of having no abstract, lost a prospective sale of the land received by him, which sale would have netted him a profit of approximately $1,000, held, that such grantee’s damages were the cost of the abstract, which could have been obtained for $65.
    Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    affirmed.
    STATEMENT OF FACTS.
    The only issue involved in the appeal in this case is the correct measure of damages for a breach of contract to exchange lands, under the facts proved by the plaintiff in the case.
    A. W. Curtner sued the Bank of Jonesboro to recover $11,500 for ia breach of a contract to exchange lands between the parties. In 1922 A. W. Curtner owned a seventeen-acre tract of land near the city of Jonesboro, in Craighead County, Arkansas, and the Bank of Jonesboro owned a 320-acre tract of land near it. The bank valued its tract of land at about $8,000, and Curtner valued his tract at about $4,000. The parties, traded on this basis, and the remainder of the purchase price was to be paid by Curtner in deferred payments. In the contract for the exchange of lands each party agreed to furnish the other an abstract. The bank had an abstract to its land, but failed to furnish the same to Curtner. The abstract cost the bank $65. After the exchange of lands had been completed, Curtner went into the possession of the land conveyed to him by the bank. Before he had completed his payment -of the purchase price, he made an agreement with- a third party to sell the land to him at a profit of more than a thousand dollars. Pie told the bank about the prospective purchaser, and said that he could not complete the contract unless the bank would deliver the abstract to him. This the bank failed to do, and Curtner lost the prospective sale. The bank represented to Curtner at the time the exchange of land was made that its land was worth twice the sum it was valued at in the exchangee.
    The court instructed the jury that Curtner was only entitled to recover damages in the sum of $65 in any event. In respect to an interrogatory propounded to the jury,- it found that the bank agreed to furnish Curtner an abstract; whereupon the court found that Curtner was entitled to recover only the sum of $65 as his damage», and judgment was rendered accordingly. To reverse that judgment Curtner has duly prosecuted an appeal to this court.

      Cooley, Adams & Fuhr, for appellant.

      Hawthorne, Hawthorne & Wheatley, for appellee.
   Hart, C. J.,

(after stating the facts). Curtner relies for ia reversal of the judgment upon the rule in Hampton Stave Co. v. Gardner (C. C. A.), 154 Fed. 805, where it was. held that, upon a breach by a vendor of a covenant to furnish an abstract of title in a contract which grants a time option to purchase land, the measure of damages is the difference between the contract price and the value of the land, and the issue whether or not the vendee would have bought the land if the vendor had furnished the abstract is speculative and immaterial. Without approving that decision as to option contracts for the sale of land, we are of the opinion that it has no application to the facts of the present casé and is wholly opposed to the rule governing executed contracts of sale, as decided by our own and other courts of last resort.

It was clearly the duty of the plaintiff to use reasonable effort» to lessen any damage that might result from defendant’s breach of its contract in.a case like the-present one, where this could have been done at a trifling expense compared to the whole value -of the land. In Warren v. Stoddard, 105 U. S. 224, 26 L. ed. 1117, the rule was laid down as follows:

“That, where a party is entitled to the benefit'of a contract, and can save himself from a loss arising from the breach of it, at a trifling expense or with reasonable exertions, 'it is- his duty to do it, and he can charge the delinquent with isiuch damages -only as, with reasonable endeavors and expense, he could not prevent.”

The rule as -settled -by the decisions in this State is ■that, where a party is entitled to the benefit of a contract, 'and can save himself from loss arising from a breach thereof at a small expense or with reasonable exertions, it is his duty to do so, and he cam only recover -such damages as he could not thereby prevent. Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (N. S.) 977; Western Union Tel. Co. v. Ivy, 102 Ark. 246, 143 S. W. 1078; St. Louis Southwestern Ry. Co. v. Reagan, 79 Ark. 484, 96 S. W. 168, 7 L. R. A. (N. S.) 977; and Lisko v. Uhren, 134 Ark. 430, 204 S. W. 101.

The undisputed evidence shows that Curtner could have procured -a-m abstract -of title to the land in question for the sum -of $65, and we are of the opinion that this was a trifling expense when compared with the whole value of the land, which, at the time of the exchange, was valued by the bank at $8,000, and which Curtner now says the bank told him waisi worth at the time twice that amount.

It follows that the judgment of the circuit court, was correct, and it will therefore be affirmed.


text:
    First National Bank of Helena v. Mays.
    Opinion delivered November 28, 1927.
    1. Garnishment — public officers. — State and county officers are exempt on grounds of public policy from the process of garnishment, as far as the public funds intrusted to them are concerned.
    2. Garnishment — fees of sheriff. — On grounds of public policy the judgment creditor of a sheriff is not entitled by equitable garnishment to impound moneys due to the sheriff for feeding county prisoners; such fees being necessary and provided by law to enable the sheriff to discharge his official duties.
    3. Garnishment — fees to sheriff after resigning. — Since the county court has a right to settle with sheriffs and readjust their settlements after their terms expire or they cease to be officers, fees due to a sheriff for feeding prisoners after he has resigned the office are not subject to garnishment.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against appellees to subject a certain sum of money due from Phillips County to J. D. Mays for feeding the county prisoners to the payment of a judgment against J. D. Mays. The suit was defended on the ground that the fund in question was not subject to garnishment.
    The record shows that, on the 13th day of November, 1925, appellant obtained judgment in the circuit court of Phillips County against J. D. Mays in the sum of $6,204.66; that an execution issued on said judgment was returned wholly unsatisfied, and that said Mays is insolvent. The record also shows that said J. D. Mays had been sheriff of Phillips County for several years prior to November 29, 1926, at which time he resigned. On December 7, 1926, J. D. Mays filed three claims against Phillips County, aggregating $2,011, for feeding the prisoners confined in the county jail during the months of October and November, 1926, while he was sheriff of Phillips County.
    The present suit was filed on December 1, 1926, and summons served on appellees, who were the defendants in the suit.

      The undisputed evidence shows that the claim for feeding the county prisoners is just and correct, and that Phillips County owes Mays said sum of $2,011. No order of allowance has been made in the county court, on account of the pendency of this suit. The chancellor found the issues in favor of appellees, and the complaint was dismissed for want of equity. The case is here on appeal.

      Breiver & Cracraft, for appellant.

      W. G. Dinning, for appellee.
   Hart, C. J.,

(after stating the facts). The sole issue-raised by the appeal is whether moneys due a sheriff for feeding the county prisoners by a county may be impounded by equitable garnishment, by a judgment creditor, after the sheriff has gone out of office, upon proof of his insolvency.

In a case-note to 17 Ann. Cas., at p. 525, it is said that the rule is well settled by the weight of authority that the compensation of public officers cannot be reached for the payment of their debts by garnishment, and among the numerous cases cited is McMeekin v. State, 9 Ark. 553. In that case, a judgment having been obtained against one of the Judges of the Supreme Court, and the same remaining unpaid, a garnishment was served upon the Auditor to compel the amount due the Judge of the Supreme Court as his salary to be paid towards the satisfaction of the judgment. The relief was denied, and Scott, J., speaking for the court, said:

“Looking, then, to the whole record, the question is distinctly presented whether or not the salary due from the State to one of her public officers can, by garnishment, be seized before being paid to him, and appropriated to the payment of his judgment debts. And this seems to be absolutely forbidden by consideration of public policy. In every enlightened community, public policy must ever be paramount to individual convenience and private interests, and it cannot be doubted that the most efficient administration of the Government in general, and the free course of the stream of .justice in tribunals, are the very highest of these considerations. To interpret the will of tlie Legislature as in conflict, in any degree, with these great public objects, could rarely, if ever, be done; as to do so would be abhorrent to every legal idea of civil liberty, and that the proper and efficient administration of the State Government in all its departments would be endangered by the establishment of the doctrine contended for by the plaintiffs in error cannot, for a moment, be doubted, as it would, at all times, in its practical operation, >be embarrassing, would .frequently be mischievous, and, under some circumstances, might prove fatal to the public service. ’ ’ To the same effect is Rollo v. Andes Ins. Co., 23 Gratt. (Va.) 509, 14 Am. Rep. 147.

In Pruitt v. Armstrong, 56 Ala. 306, it was held that a public officer, who has public moneys in his custody for disbursement in satisfaction of demands of Government, cannot be summoned as the garnishee of one having a legal right to demand and receive from him such moneys. Brickell, O. J., speaking for the court said:

“The exemption does not rest only, on the ground that the technical relation of debtor and creditor is not existing between the Government and the person who may be entitled to receive the money, which relation is the foundation of the process of garnishment, or kindred legal process, for the subjection of choses in action to the payment of debts. It is founded on considerations of public policy — the embarrassments in the administration of Government which must result if, by judicial process, the public moneys could be diverted from the specific purposes to which by law they are appropriated. Between the Government and its officers and agents, or its creditors, if those having claims on it are thus termed, individuals cannot be permitted to intervene, suspending the disbursement of the public revenue, and deferring the adjustment of the accounts of public officers, until their judicial controversies may be terminated. The law determines the character of the voucher the disbursing officer must produce to relieve himself from liability for the money committed to his custody. The officer cannot be compelled to receive any other, nor can the officer to whom, and with whom he must account, receive from him any other evidence of the proper and legal disbursement of the public moneys.”

In Fort Smith v. Quinn, 170 Ark. 54, 278 S. W. 625, the court again said creditors of public officials and employees are not permitted to garnish their salaries. Hence, whatever may be said of the public policy of exempting officers ’ salaries from the process of garnishment, the doctrine has obtained too long in this State to be overturned by the courts.

The same considerations of public policy that exempt officers of the 'State from the process of garnishment and the like, as far as the public funds intrusted to them are concerned, applies with equal force to counties and their officers. In Boone County v. Keck, 31 Ark. 387, it was held that a county is not subject to the process of garnishment. The court said:

“Public policy, indeed, public necessity, requires that the means of public corporations, which are created for public purposes, with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected, to satisfy the demands of others than the parties contracted with.”

It is earnestly insisted by counsel for appellant that the doctrine of these cases has been modified in Riggin v. Hilliard, 56 Ark. 476, 20 S. W. 402, 35 Am. St. Rep. 113, and Plummer v. School District, 90 Ark. 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 Ann. Cas. 508; and that the ease at bar, under the facts in the record, falls within the modification to the general rule announced in the two cases last cited.

In the Hilliard case it was held that, while a county is not subject to the ordinary process of garnishment, yet in equity, when the interest of the public will not be injuriously affected, the claim of an insolvent creditor of the county maybe subjected by equitable garnishment to the payment of his debts. It was expressly stated in the opinion, however, that the remedy is allowed in no case where it is adjudged that the public will be injuriously affected.

In that case Hilliard had made a contract to repair and reconstruct a courthouse. The work had been completed under the contract, and a fixed amount was due Hilliard as contractor under it. Nothing- remained to be done except to pay him the amount due under the contract, and there was no dispute as to the amount due. Hence the court said that there was no longer any public interest to be subserved by withholding payment from the contractor, and no reason for withholding the debt from the reach of the remedy of equitable garnishment.

In the Plummer case the schoolhouse had been completed according to contract, and a fixed and definite sum was due the contractor by the school district, and nothing remained to be done except to pay the contractor the amount due. The court said that the public interest muid not be injuriously affected by allowing the equitable garnishment.

Here the facts are essentially different. By statute the sheriff is made jailer of the county prisoners, and certain fees are allowed him for feeding them. Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768, and Mays v. Phillips County, 168 Ark. 829, 274 S. W. 5; 279 S. W. 366. The fees are allowed by way of compensation, and are not a matter of contract. The principle is announced in Buchanan v. Alexander, 4 How. (U. S.) 20, 11 L. ed. 857, where it was said that money in the hands of a disbursing officer belongs to the United States, and, until paid over -by the agent of the Government to the person entitled to it, the fund is not a part of his effects, in a legal sense. Under our statutes, sheriffs and other officers are required to account to and settle with the county court at each regular session thereof. Crawford & Moses ’ Dig., § 10153. The county court may employ an expert accountant to audit the books of county officers. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917B 438.

Under present statute the county judge may apply to the State Auditorial Department for an audit of the accounts of county officers. Marable v. State, use of Columbia County, post p. 589.

Under § 10165 of the Digest, the county court may at any time correct errors in the settlements of any county officer. Garnishment proceedings might result in many vexatious and harassing suits.. The garnishment proceedings would necessarily suspend payment until the decision of the case. This would necessarily embarrass the officers whose duty it was to settle with officers whose salary or compensation might be the subject of garnishment. Their attendance at court might be frequently required, and these* and other vexatious and harassing questions which might arise would materially embarrass them in the performance of their official duties.

In cases where the salaries of officers like clerks and sheriffs, whose compensation consists in fees, settlements with the county courts would be held up until the garnishment proceedings were terminated. It is not like a case where the county owes a debt on a contract, and nothing remains to be done except to pay the contractor the amount admitted to be due him. In such cases the county merely owes an ordinary debt to a third person, and in tlie Hilliard and Plummer cases, cited above, this court has held that the mere inconvenience of answering a garnishee summons would not prevent the remedy by equitable garnishment, because in no • sense could the public interest be injuriously affected.

As we have just seen, it is a part of our public policy to adjust and settle the accounts of sheriffs and clerks, "and the public interests as. well as the public service might be seriously embarrassed and injuriously affected if the unpaid salary or compensation of public officers, and especially sheriffs, could be reached by his creditors by garnishment proceedings of any kind. The difference in the two classes of cases is clearly explained by Judge Mitchell in Roeller v. Ames, 33 Minn. 132, 22 N. W. 177.

In Webb v. McCauley, 4 Bush (Ky.) 8, it was held that allowances made by county courts to jailers for fees and services, as such, cannot be attached in the hands of the sheriff. It was further held that, fees and allowances to jailers being necessary, and provided by law, to enable them to discharge their official duties, publhj policy will not permit a creditor to attach these fees and allowances in the hands of the sheriff.

Finally, it is sought to distinguish this case from the principles above announced by the fact that the garnishment proceedings in the present case were not commenced until the sheriff had resigned his office, and ceased to be an officer. The difference is one of degree merely. The right of the county court to settle with sheriffs and readjust their settlements continues after their terms expire or they cease to be officers. This question is also discussed by Judge Mitchell in his usual clear manner in Orme v. Kingsley, 73 Minn. 143, 75 N. W. 1123, 72 Am. St. Rep. 614. The learned Justice said that he had not found any case where the question ivas alluded to, and said that in some of the cases it does not appear what the fact was.

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