text:
    Washington v. Hamer.
    Opinion delivered November 17, 1924.
    1. Appeal and error — order granting new trial. — An order granting a new trial will not be reversed on appeal where there is substantial conflict in the evidence.
    2. Appeal and error — -assignment op error. — Where, on conflicting evidence, a judgment rendered in favor of plaintiff was set aside on the ground assigned in the motion for a new trial that the evidence was insufficient to support the verdict, the contention of ■plaintiff on appeal that excessiveness of the verdict was waived by not being specified in the motion for new trial was without ■ merit.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Cravens & Cravens, for appellant.
    The basis of the order of court granting a new trial was that the verdict was excessive. That the damages were excessive, was not alleged in the motion for new trial, as one of the grounds thereof. A failure to set up any ground ruled upon in the motion for new trial constitutes a waiver of .such ground. 75 Ark. 534; 149 Ark. 55; 42 Ark. 528; 39 Ark. 387; 25 Ark. 49.

      B. H. Howell, for appellee.
   McCulloch, C. J.

Appellant sued appellee to recover the sum of $212.50, alleged to be due for services rendered under contract. He alleged in his complaint that appellee entered into a contract with him to pay him fifteen dollars per month for feeding and caring for stock on appellee’s farm for a period of one year, and also for certain other items alleged to be due for other services performed — for two days spent in hunting a mule, and for two days’ work on the public road in place of appellee, and for certain services performed as a blacksmith. Appellee filed an answer denying that he had contracted with appellant to pay him by the month for looking after stock on his farm, or that he was indebted to appellant for the other items set forth in his complaint.

Appellant testified at the trial that he and appellee met in front of the postoffice at Alma, and that appellee entered into an oral contract with him to work on appellee’s farm for twelve months at fifteen dollars per month,, to feed and care for the stock. He testified that he uerformed the services according to the contract, and had not been paid therefor. Appellant did not testify concerning the other items set forth in his complaint, but, on cross-examination, stated that appellee paid him' five cents per hour more than he paid other hands on the place. Other witnesses introduced by appellant’ testified that they heard the alleged contract between the parties, and that appellant’s version of the contract was correct.

Appellee testified asa witness in the case, and denied that he had hired appellant to work on his farm or to pay him by the month. He testified, in substance, that appellant went on his (appellee’s) farm under an agreement to make a share-crop, and that he agreed to pay appellant twenty-five cents per hour for all work performed while not working in his own crop, and that this was five cents per hour more than he paid other hands on the place, and that this extra amount was for appellant caring for the stock in the pasture or changing them from one pasture to another. He stated that he furnished two mules to appellant to work in the crop, and that appellant did not care for the other mules on the place.

The jury returned a verdict in favor of appellant for the recovery of $180. Appellee filed a motion for a new trial, and, on the hearing of the motion, the court held that the motion should be sustained unless appellant would enter a remittitur down to fifty dollars, which appellant refused to do, and the court then made an order setting aside the verdict and granting a new trial. Appellant took an appeal to this court, and filed a stipulation in accordance with the statute (Crawford & Moses’ Digest, § 2129) consenting that, “if the order be affirmed, judgment absolute shall be rendered against the appellant. ’ ’

There was a sharp conflict in the testimony upon the issues presented in the pleadings, and it was within the province of the jury, in the first instance, and with the court in passing upon the motion for a new trial, to determine the weight of the evidence. In neither case will this court on appeal disregard the finding of the jury or court on conflicting evidence. We have decided that, on appeal from an order of court granting a new trial, “this court will not reverse the ruling of the lower court, in setting aside a verdict, where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance.” Taylor v. Grant Lumber Co., 94 Ark. 566; Blackwood v. Eades, 98 Ark. 304; McDonnell v. St. L. S. W. Ry. Co., 98 Ark. 334.

There was a sharp conflict in the testimony, appellant contending that the contract was for payment for services at fifteen dollars per month for a year, whereas appellee testified that, under the contract, he was only to pay appellee by the hour for extra services rendered. The court, in effect, found against the contention of appellant that, under the contract, he was entitled to compensation by the month, but that he had earned a certain amount of compensation under the contract for payment for services by the hour, as contended for by appellee, and, in accordance with this finding, the court offered to overrule the motion for a new trial if appellant would enter a remittitur, which was refused. There was nothing left then for the court to do, under its findings that the verdict was against the preponderance of the evidence, except to set aside the verdict and grant a new trial.

It is contended by counsel for appellant that the excessiveness of the verdict was waived by not being specified in the motion for a new trial. This contention is based upon the statute ('Crawford & Moses’ Digest, § 1311), which provides that excessive damages “appear-, ing to have been given under the influence, of passion or prejudice” may be assigned as grounds for a new trial. The question of excessive damages is not involved, for this is a suit on a contract for services rendered. It is a question of the sufficiency of the evidence, and this was duly assigned in the motion for a new trial.

It follows from what we have said that the order of the court granting a new trial should not be disturbed, there being a conflict in the testimony. The order is therefore affirmed, and judgment absolute will be rendered here against appellant’s right to recover in the action.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Hill v. Walthour.
    Opinion delivered November 17, 1924.
    Municipal corporations — limit of cost op improvement. — Under Crawford & Moses’ Digest., § 5666, as amended by Acts 1921, p. 416, where the petition for a street improvement stipulated that the cost should not exceed 50 per cent, of the value of realty in the district, as shown by the last county assessment, held that the value of such realty must be determined solely from the last county assessment roll, and since, under § 9928, each lot is assessable as a unit, lots of irregular size and shape partly within and partly without' the district cannot be valued by extrinsic evidence of the value of the part included, nor by showing that the value of the substantial part excluded was small or negligible..
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Jean & Jones, for appellant.
    The assessors and commissioners in making assessments are limited to the county assessment, and-each lot must be assessed as a unit, and not in parts. C. & M. Dig., § 9928. Only such lots as lie wholly within the district can be included for assessment, and when done the estimated cost of the improvement exceeds even the total valuation of property in the district.

      Rogers, Barber & Henry, for appellee-
    It is equitable to compute the assessed valuation of all property which lies in the district, whether the whole of the tract or lot is included or not. •
   McCulloch, C. J.

The city council of Little Rock passed an ordinance, on petition of ten of the owners of real property in the affected area, creating a street improvement district for the purpose of paving parts of certain connecting streets, and, within three months after the publication of the-ordinance, a petition, signed by a majority in value- of the owners of real property in the district, asking for the construction of the improvement, was presented to the city council. The last petition contained a stipulation that the cost of the improvement should not exceed fifty per centum of the value of the real property in the district as shown by the last county assessment. The city council found that the last petition contained a majority in value of the owners of real property in the district, and thereupon passed the second ordinance, appointing the board of commissioners of the district authorized by statute to construct .the improvement. Plans were formed for the improvement, and the cost thereof was estimated to be $29,385.65. The commissioners, according to the allegations of the complaint in this action, have proceeded to assess benefits, ,and are about to proceed with the construction of the improvement.

Appellant is the owner of real property in the district, and instituted this action to restrain further proceedings on the ground that the estimated cost of the improvement will exceed fifty per centum of the value of the real property in the district as shown by the last county assessment.

An answer was filed by the commissioners of the district denying that .the estimated cost would exceed the percentage stipulated in the petition of the property owners. There was a trial on this issue, and the court sustaiiied the contention of the commissioners, and dismissed appellant’s complaint for want of equity.

The decision of the case involves an interpretation of the statute enacted by the General Assembly of 1921 (Acts 1921, p. 416) amending § 5666, Crawford & Moses’ Digest, the amendatory act reading, in part, as follows:

“The petition for such improvement, signed by a majority- in value of the owners of the real property in the district, shall -specify what percentage of the value of -the real property in the district, as shown by the last county assessment, the said improvement shall not exceed in cost; and any improvement may be undertaken which in cost does not exceed the percentage of the value of the real property in the district specified in the petition.”

The boundaries of the district included all land abutting on- either of the streets to be improved and within one hundred and fifty feet of either of said streets, and it appears from the allegations of the complaint, and the plat of the affected area, that most of the lots in the district are irregular in size and shape, so that some of them are more than one hundred and fifty feet deep and some less, and the result is that parts of some of the lots are beyond the boundaries of the district. This situation is more fully and accurately described in the opinion of this court in the recent case involving the validity of the organization of this district. Hill v. Walthour, 165 Art. 243.

It appears, from the iast assessment book of the county, that the aggregate assessed value of the lots lying wholly within the boundaries of the district is $24,080, which is less than the estimated cost of the improvement; but appellees introduced witnesses to prove that a fair apportionment, according to the last county assessment, of the parts of lots situated in the district, added to the assessed value of all of the lots lying wholly within the district, would amount to the aggregate sum of $64,400, which is more than double the estimated cost of the improvement.

It is the contention of appellant that, under the statute, the last assessment for county taxation affords the sole test of value without considering extraneous evidence, whereas the contention of counsel for appellees is that the statute means only that the county assessment list shall be accepted as the basis for ascertaining the value, and that, where a whole lot assessed as a unit lies partly inside and partly outside of the district, evidence may be taken to ascertain the proportionate value of that part of the lot lying inside of the district on the basis of the value of the whole as fixed by the county assessor.

We are of the opinion that the contention of appellant is sound and that the statute does not admit of any test of value other than the face of the assessment rolls. Similar language is used in the statute with reference to ascertaining the majority in value of property owners asking for the improvement ('Crawford & Moses’ Digest, $ 5653), and we have decided that it means that the investigation must be confined to the face of the assessment, without considering omitted property or property hearing a double assessment. Improvement Dist. No. 1 v. St. Louis S. W. Ry. Co., 99 Ark. 508; Malvern v. Nunn, 127 Ark. 418.

In the case first cited above, the court, after reviewing the method of assessing property for county purposes, said:

. “The valuation of the various properties thus made and placed upon the county- assessment list gives, we think, with greater approximation, the true and uniform, valuation of all the real property in an improvement district than any other mode of procedure. It is true that property may escape from the county assessment, but, under any other system or investigation, juridical or otherwise, this can and will occur. On account of the great divergence in the testimony of witnesses as to the value of property, 'the county assessment is a better criterion for determining the true valuation of all the property in any proposed district than a determination dependent upon such divergent testimony. If it is said that we should take the values of the real property, as shown by the county assessment list, and then find the real property which has been omitted therefrom to be added thereto, and, by the testimony of witnesses, determine the value of this omitted property, then it will be necessary to determine, from the conflicting testimony, the true value of such omitted real property, and, in order to equalize this value with that upon the county assessment, it will be further necessary to find and determine the actual value of all the property appearing upon the county assessment in comparison with • its assessed value, so as • to make equal and uniform the value that shall be placed upon the omitted property. Taking into consideration the care, diligence, and safeguards that are provided for in making the county assessments, we are of the opinion that, in comparison with any other system' of procedure, it will give with greater approximation the true and uniform value of all the real property in any proposed improvement district. The provisions of the statute prescribing that the city council shall be governed by the valuation placed upon the property as shown by the last county assessment, in fixing the value of property in a proposed improvement district as a basis for determining whether a majority in value of the property owners have signed the petition, does not, we think, contravene any constitutional requirement.”

It was the manifest design of the lawmakers, in making the last assessment list the sole evidence of value, to adopt a definite and certain test not dependent upon the judgment or discretion of any one except the assessing authorities of the county. The difficulty in the present case grows out of the unusual size and shape of the lots - in the district, and this unusual situation could not have' been in the minds of the framers of the statute. We take notice of the almost universal custom of laying out lots and blocks of uniform size in cities and towns, and our statute in regard to the duty of assessing officers for ordinary tax purposes to assess each lot separately as a unit: Crawford & Moses’ Digest, § 992'8.

The statute now under consideration was passed, doubtless, with reference to the provisions of the other statute just referred to, and there was no thought in the legislative mind of it becoming necessary to break up a unit of value adopted by the county assessor pursuant to statutory directions, in order to ascertain the proportionate value of a lot lying partly outside of an improvement district. It may result that the adoption of the face of the assessment list as the sole test of value of property in a district will thwart the plan for constructing the improvement, and might, as to property similarly situated, prevent the formation of a district. But that results, not from a defect in the law, but from the extraordinary and unusual circumstances affecting this particular district. The formation of a district is the voluntary act of the owners of property, under authority of the statute, and, in order to form such a district, they must bring themselves and the affected property within the provisions of the statute. If the situation of a given area is so peculiar that the law does not admit of it being organized into an improvement district, the difficulty is, as before stated, not with the law, but arises from the peculiar facts. We must therefore construe the statute to mean that, in determining the percentage of value, the face of the assessment list must be looked to as the sole test, and that the value of a lot constituting a single unit of value for assessment purposes, lying partly inside and partly outside, cannot be considered and its proportionate value ascertained by evidence aliunde.

It is further contended that, according to the evidence adduced, the value of the parts of lots lying outside the district is negligible, and for that reason should be discarded and not considered. It is true that a witness testified that, in his opinion, the value of the lots outside the district was negligible, but that is a mere matter of opinion, and it was the design of the statute not to leave the question of value to the opinions of witnesses in an investigation by the court to determine that value, the statute having made the assessor’s list the sole test. It certainly cannot be said that the area constituting the parts of lots outside the district should be excluded on the doctrine of de mimmis. It is shown that substantial portions of the lots lie outside of the district, in some instances as much as fifty feet of the back end of the lots.

Our conclusion is that, according to the only test afforded by the statute, the cost of the improvement will exceed more than fifty per centum of the valuation of the real property in the district according to the last assessment, and that the commissioners have no power to proceed with the improvement.

The decree of the chancery court is therefore reversed, and the cause remanded with directions to enter a decree in accordance with the prayer of appellant’s complaint.


author: Hart, J.

text:
    Lipsmeyer v. State.
    Opinion delivered November 17, 1924.
    1. Rape and carnal abuse — evidence of criminal intimacy. — In a prosecution under Crawford & Moses’ Dig., § 2720, for carnally knowing a female under the age of 16 years, it was not error to exclude an alleged letter of the prosecutrix tending to show her criminal intimacy with another person than defendant.
    2. Witnesses — cross-examination as to collateral matter. — In a prosecution for carnal knowledge of a female under 16 years of age, it was competent, for the purpose of discrediting her, to ask the prosecutrix on cross-examination whether she had written certain letters showing criminal intimacy with another than defendant, and whether she had had such intimacy, but her answers could not be contradicted.
    Appeal from Perry Circuit Court; Jolvn W. Wade, Judge;
    affirmed.

      J. H. Bowen, G. B. Colvin, for appellant.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Appellant prosecutes this appeal to reverse a judgment of conviction against him for the crime of carnal abuse.

It is conceded that the evidence is sufficient to support a verdict of guilty, and the only ground relied upon for a reversal of the judgment is that the court erred in refusing to allow to be read to the jury certain letters claimed to have been written by the prosecuting witness to a man other than the defendant.

The letters in question were exhibited to the prosecuting witness on her cross-examination, and she denied having written them, or that they were in her handwriting. She was asked to sign her name and transcribe certain portions of the letters, and did so. The defendant then offered to introduce the letters in evidence, and excepted to the ruling of the court that they were not competent. The letters tended to show that the prosecuting witness had been criminally intimate with a man other than the defendant.

The gist of the offense of which the defendant was convicted was that he carnally knew a female person under the age of sixteen years, in violation of the provisions of § 2720 of Crawford & Moses’ Digest. The question therefore of whether another man had been guilty of carnally 'knowing the prosecuting witness was collateral to the issue of whether or not the defendant was guilty of carnally knowing her.

It was competent to ask her, on cross-examination, whether or not she had written the letters, and also to ask the witness herself if she had not been criminally intimate with another man, for the purpose of discrediting her as a witness; but her answer in the negative should have been the end of the matter. The general rule is that, when a witness is cross-examined on a matter collateral ■ to the issue, his answer cannot be subsequently contradicted. Howell v. State, 141 Ark. 487; Rowe v. State, 155 Ark. 419.

It is next contended that the court erred in not admitting certain letters claimed to have been written by the prosecuting witness to Conway Lively, and the cases of McDonald v. State, 155 Ark. 142, and Rowe v. State, 155 Ark. 419, are relied upon.

In these cases it was held that a prosecution for carnal abuse of a girl under the age of consent, in which the prosecutrix exhibited to the jury a child to which she claimed to have given birth as the result of intercourse with the defendant, and was allowed to testify as to the particular qccasion*and time of the intercourse with the defendant when conception took place, exclusion of testimony that, about the same time, she was associating with others in a manner warranting a conclusion that they had opportunities for and may have had intercourse with her, was reversible error.

"We do not think, however, that the excluded letters brought the case before us within the limits of the rule. It is true that the prosecuting witness testified that she only had intercourse with the defendant one time, and that was oil the 24th of July, 1921, and that she never had intercourse with any other man.

It is also true that the child was horn on April 24, 1922, just nine months thereafter, and that the prosecuting witness was allowed to exhibit the child to the jury. The excluded letters, however, were dated in February, 1922, and, while they contained lascivious expressions upo,n the part of the writer, they do not refer to any act of intercourse at a time near that at which the child was conceived. Therefore the letters were not admissible as independent evidence to contradict the testimony of the prosecuting witness.

It follows that the judgment must be affirmed.


author: Hart, J.,

text:
    Union & Planters’ Bank & Trust Company v. Simmons.
    Opinion delivered November 17, 1924.
    1. Vendor and purchaser — equitable lien. — A vendor who has parted with the legal title has in equity a lien on the land for the unpaid purchase money, as against his vendee and subsequent purchasers with notice.
    2. Vendor and purchaser — notice op recitals op title deeds.— One who purchases land will be affected with notice of all recitals in the title deeds of his vendor, whether recorded or not.
    3. Vendor and purchaser — constructive notice. — Where anything appears in title deeds sufficient to put a prudent man on inquiry which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that which he is ■about to purchase, the purchaser will be charged with such notice.
    4. Vendor and purchaser — notice op unpaid purchase1 money.— Notice in title deeds of a purchaser’s vendor that .part of the purchase money remained unpaid was sufficient to put the purchaser on notice.
    5. Vendor and purchaser — mistake in abstract of title. — A mistake in an abstract of title does not relieve a purchaser from making inquiry suggested by a title deed of his vendor'.
    6. Vendor and purchaser — reliance on vendor’s representation. ■ — -A purchaser may not rely upon representations of his vendor as against recitals in the vendor’s title deeds.

      Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Union & Planters’ Bank & Trust Company brought this suit-in equity against L. D. Williams and wife to foreclose a mortgage on land.
    A. N. Simmons instituted an action in the same chancery court against J. W. Thomas and wife and L. D. Williams and wife, and the Maxwell Investment Company, a corpqration, to foreclose an equitable lien for the purchase price of said land. Both cases were consolidated and tried together. So far as this appeal is concerned, A. N. Simmons is the original source of title of the land in question.
    On the 17th day of October, 1917, A. N. Simmons and wife executed a warranty deed to J. W. Thomas to certain land, including the land in controversy. The deed recites that it is executed by A. N. Simmons and Ella H. Simmons, his wife, “for and in consideration of the sum of $6,666.66, to us in hand paid and to be paid by J. W. Thomas.” The deed was duly acknowledged on the 19th day of October, 1917, and filed for record on the 24th day of October, 1917.
    On the 3rd day of December, 1918, J. W. Thomas and wife executed a warranty deed to eighty acres of said land to L. D. Williams. The deed recites that it is executed in consideration of the sum of $8,000, “one-third of which is paid in cash, and the remainder secured by deed of trust on land, to us in hand paid by L. D. Williams, and the assumption of $3,333.33, same being two-thirds of a mortgage, the balance due on which is $5,000 in favor of A. N. Simmons, with all interest notes. ” This deed was duly acknowledged on the 3rd day of December, 1918, ap.d filed for record on Jánuary 13,1919.
    On the 17th day of October, 1917, J. W. Thomas and wife executed a mortgage or deed of trust to E. O. McDermith on said land to secure an indebtedness which the said J. W. Thomas owed A. N. Simmons, in the sum of $5,250. This mortgage was duly acknowledged on the day of its execution, but was not filed for record until tbe 11th day of April, 1922.
    On the 1st day of November, 1920, L. JD. Williams and wife executed a mortgage to the Maxwell Investment Company, a corporation, to secure an indebtedness to it in the sum of $3,000, evidenced by promissory notes. This mortgage was duly acknowledged on the 4th day of December, 1920, and filed for record on the 7th day of December, 1920.
    On the 12th day of September, 1921, the said Maxwell Investment Company, for a valuable consideration, duly assigned said mortgage and the notes secured thereby to the Union & Planters’ Bank & Trust Company in due course of trade, and' said assignment was made before said notes and mortgage were due.
    Other facts will be stated or referred to in the opinion.
    The chancellor was of the opinion that a vendor’s equitable lien on said land existed in favor of A. N. Simmons which was superior to the mortgage lien of the Union & Planters’ Bank & Trust Company.
    A decree was entered of record in accordance with the finding of the 'chancellor, and the decree expressly recites that the Union & Planters’ Bank & Trust Company recovered of the defendant, L. D. Williams, the amount of his mortgage indebtedness with the accrued interest, and that the same be declared a lien upon the land in controversy, subject, however, to the prior lien held by A.' N. Simmons as herein decreed. .
    Union & Planters’ Bank & Trust Company has duly prosecuted an appeal to this court.

      Guy P. Long, G. G. Gillespie and B. V. Wheeler, for appellant.

      H. P. Maddox, .for appellee.
    The deed from 'Simmons to Thomas, reciting a consideration paid and to be paid, was recorded long before the execution of the mortgages held by the appellant, and amounted to notice to the appellant of the vendors’ lien. Likewise the recitals as to the consideration in the deed from Thomas to Williams were notice to appellant. 47 Art. 301; 63 Ark. 268; 37 Ark. 571; 126 Ark. 420; 120 Ark. 167; 144 Ark. 79. This lien is enforceable against any one purchasing with notice thereof. 130 Ark. 167; 21 Ark. 202; 29 Ark. 357. See also 35 Ark. 100; 50 Ark. 322; 103 Ark. 425.
   Hart, J.,

(after stating the facts). A vendor of land who has parted with the legal title has in equity a lien cm the land for the unpaid purchase money,- as against his vendee and subsequent purchasers with notice; and a subsequent purchaser will be affected with notice of all recitals in the title deeds of his vendor, whether recorded or not. If anything appears in such deeds sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and, if he does not make it, he is guilty of bad faith, or negligence, and the law will charge him with the actual notice he would have received if he had made it. Notice that part of the purchase money remains unpaid is sufficient notice. Gaines v. Summers, 50 Ark. 322; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192; and Madden v. Suddarth, 144 Ark. 79.

Our statement of facts shows that A. N. Simmons conveyed this land by a warranty deed to J. S. Thomas on the 17th day of October, 1917.. The deed recites a consideration of $6,666.66, “in hand paid and to be paid by J. W. Thomas.”

On the 3rd day of December, 1918, J. W. Thomas and wife executed a warranty deed to said lands to L. D. Williams. The deed recites a consideration of $8,000, “one-third of which is paid in cash, and the remainder secured by a deed of trust on land, to us in hand paid by L. D. Williams, and the assumption of the sum of $3,333.33, same being two-thirds of a mortgage, the balance due on which is $5,000 in favor of A. N. Simmons.” The mortgage of L. D. Williams and wife to the Maxwell Investment Company, which was transferred to. the Union & Planters’ Bank & Trust. Company, was not executed until the 1st day of November, 1920;

The deeds from A. N. Simmons and wife to J. ¡W. Thomas and from J. W. Thomas and wife to L. D. Williams were both in the line of title of the Maxwell Investment Company, and that company transferred its mortgage from L. I). Williams to the Union & Planters’ Bank & Trust Company: The mortgagee and its assignee were subsequent purchasers and affected with notice of all recitals in the title deeds of their vendors.

L. D. Williams, when he purchased the land in controversy from J. W. Thomas, knew that the latter still owed A. N. Simmons a balance for the land, and gave Thomas his obligation for the amount. The deed recites that Williams assumed the sum of $3,333.33 which Thomas owed Simmons. The amount'Williams assumed to pay was a part of the consideration of his purchase, and was at the time a lien on the lands.

The Maxwell Investment Company could have ascertained this fact from inquiries suggested by the' recitation of the consideration in the deed from Thomas to Williams and by the deed from Simmons to Thomas. It will be remembered that the latter deed contains the recitation that it is for a consideration of $6,666.66, paid and to be paid by J. W. Thomas. An inquiry of Thomas or of Simmons would have revealed the fact that there was a balance of the purchase money due Simmons.

It is true that the abstract of title furnished the Maxwell Investment Company recited that the consideration to Simmons had been paid; but this recitation in the abstract of title necessarily could not control. If the Maxwell Investment Company was affected "with notice of all recitals in the title deeds of its vendor, it could not ignore these recitals and rely upon a recital in the abstract of title. In other words, a mistake in the abstract of title would not relieve it from making inquiries suggested by the deed in the line of its title. Neither would the fact that Williams made the statement that there were no liens on the land when he made his application for a loan relieve it from (mailing' the inquiries suggested, in the deeds just referred to. Any inquiry made by the Maxwell Investment Company to Thomas or Simmons would have disclosed the fact, that there was a balance of purchase money due Simmons, and that Williams had expressly agreed with Thomas to assume a part of this, and that the amount he assumed to pay was a part of the consideration of his purchase from Thomas. •

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Jones v. State.
    Opinion delivered November 17, 1924.
    1. Intoxicating liquors — sufficiency of evidence. — Evidence held sufficient to support a verdict that defendant was guilty of, or interested in, the manufacture of intoxicating liquors.
    2. Criminal law — remarks of court. — Where defendant’s counsel offered to make certain admissions “in order to facilitate this matter,” a remark of the court, “Yes, facilitate like a crawfish does, backwards,” was erroneous and prejudicial.
    3. Jury — peremptory challenge — time of exercise.. — Where, after a juror has been accepted by both parties, but, before the jury is completed, defendant asked that he be permitted to challenge such juror peremptorily, because he had discovered that he would not be competent, the court did not abuse its discretion in refusing, in the absence of any statement of some fact or circumstance which caused the defendant to believe the jurors were not acceptable.
    4. Intoxicating liquors — evidence.—In a prosecution for the unlawful sale of liquors, testimony concerning the offer of defendant to sell a half-pint of liquor, was admissible, as this tended to show the business in which defendant was engaged.
    5. Intoxicating liquors — aiding in manufacture — instruction.— In a prosecution for manufacturing liquor, an instruction that defendant was guilty if he was present while a still was in operation, aiding, abetting or assisting in the operation, was correct.
    6. Intoxicating liquors — instruction.—Since defendant would be guilty if he aided or assisted in the manufacture of intoxicating liquors, a requested instruction that he could not be convicted unless the jury found that he was engaged in making such liquors was properly refused.
    7. Criminal law — repetition .op instructions. — Requested instructions which, in so far as they correctly declared the law, were covered by instructions given by the court were properly refused.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    reversed.

      J. S. Utley, Attorney General, and Barden Moose, Assistant, for appellee.
   Smith, J.

Appellant was convicted under an indictment which charged that he had manufactured and was interested in the manufacture of intoxicating liquors.

Officers of the law testified that they had been advised that a still was in operation on an island in the L’Anguille River, and they went in search of it. Their search was aided by an ascending smoke which they saw through the trees and the sound of some one cutting wood, and they came upon a still which had only recently been in operation. The still was complete, except that some one had carried off the worm. The officers had separated in their search, and the two who first found the still saw two men leaving the place, and one of the officers positively identified one of the men as appellant, and the other officer testified that one of the men he saw leaving limped like appellant did when he walked.

The State was proceeding to prove other circumstances identifying appellant as one of the men seen at the still, when the following colloquy occurred between the court and counsel for appellant, which we copy from the record:

' ‘ ‘ Counsel ; In order to facilitate this matter, I am willing to admit that this man was down there, that his horse was there, and— Court: The motion is overruled. Counsel: I am just trying to facilitate matters. Court: Yes, facilitate like a crawfish does, backwards. Counsel: I object to the remark of the court. Court: Yes, I understand it. Counsel : All in the world I Avant, in my humble way, is to defend this man the best I can, and I have a right to get these things in the record.” To which said remarks in the presence of the jnry counsel for defendant objected, which said objections were by the court overruled; to which ruling of the court defendant at the time excepted, and caused said exceptions to be noted of record.”

Appellant testified in his own behalf, and admitted his presence at the still, but explained that he was looking for a cow, and that he had heard there-was a still located near his house, and he decided that he would find that too, if he could, for the purpose of reporting it to the officers.

The two officers who saw appellant at the still did not offer to arrest him at the time, as they decided to wait until the sheriff with another officer came up, but, after waiting about five minutes for these officers, they went up to the still, and the men they had seen there were gone.-

After making the remarks quoted above, the court permitted the witnesses to detail what they had seen; that .appellant’s horse was hitched to a tree near the still, and a boat was found on the island side of the river bank, where the still was; that some whiskey had been poured on the ground, which burned when a match was applied to it, and that the fire had been recently scattered and water poured on it. The island was a small body of land, and no other persons were seen near the still except appellant and the man who was seen with him.

Appellant admitted that he was the man seen at the still, and that his brother was with him; but he stated that his brother was assisting in the search; and he also admitted that they turned over one of the barrels, but he said they did this to destroy its contents. Appellant also admitted that he carried away from the still a spade, but he said he did this because the spade had -been stolen from his home, and, as he recognized it, he took it away with him.

Before the jury was completed, appellant asked to be allowed to challenge two jurors who had been accepted. His attorney said: “If the court please, since accepting Y. O. Turner and H. B. Slrumacker as jurors .in this ease, and before the jury is completed, the. defendant now discovers reasons to believe that the said V. O. Turner and H. B. Shumacker would not be competent jurors, and therefore asks permission to exercise a peremptory challenge on the said jurors. ’ ’ The court ruled as follows: “It will be refused, for the reason that no cause is given, and for the further reason that .the. court announced at the beginning of the term to attorneys that, at the time the jury was being made up, counsel both for the State and the defendant must at the time accept or reject jurors.” An exception was duly saved to this ruling.

Over appellant’s objection the State was permitted to prove that two officers were watching appellant some time after the discovery of the still, and they saw some negroes drive down the road in an automobile, and the officers heard a conversation between appellant and the negroes about the purchase of a half-pint of whiskey, Which appellant agreed to sell for a half-dollar. The officers thought the sale had been made, and they came out of their hiding place and arrested appellant, but, after searching him and the car, they failed to find any whiskey.

Exceptions were also saved to action of the court in giving and in refusing to give certain instructions.

Appellant was found guilty, and has appealed.

We think the testimony set out above was legally sufficient to support the finding that appellant was guilty as charged. The jury evidently did not accept as true the explanation made by appellant concerning his presence and purpose at the still.

But we are also of the opinion that the remark of the court about appellant backing out like a crawfish was erroneous and prejudicial. It tended to discredit his explanation. He was not guilty if his explanation was true, and its truth was wholly for the jury, and the court should have permitted the jury to consider and pass upon this question uninfluenced by any comment of the court tending to discredit his explanation.

It is the opinion of the majority that no error was committed in refusing to allow appellant to challenge peremptorily the two jurors who had been accepted. This question was recently considered in the case of Brust v. State, 153 Ark. 348, and we there quoted from the case of Allen v. State, 70 Ark. 337, as follows: “Under the statutes of this State persons summoned as jurors, when, called to serve in criminal cases, may be examined under oath touching their qualifications. As each one. is called, he is first examined by the State, and then by the defendant, and, after each examination is completed, if the juror is found by the court to be competent, the State shall challenge him peremptorily or accept him; if accepted by the State, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Bach party must challenge or accept in the order named when the court declares him competent. After he is accepted by both parties, he cannot be challenged peremptorily, without permission.. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., §§ 2202-2217.”

It is the opinion of the majority that appellant should have stated to the court the reason why he desired to challenge the jurors, after having accepted them, and that it was not sufficient to state merely that he had discovered reasons for believing that the jurors would not be competent. The court has a discretion in these matters, and a reversal will be ordered only where an abuse of this discretion is shown, and no abuse is shown when the accused fails to apprise the court of some' fact or circumstance which has caused him to believe that an accepted juror is not acceptable. Where this is not done the court cannot know that appellant is not acting capriciously.

It is the opinion of the writer, however, that a good cause is shown when the court is advised that appellant has concluded that the juror is not competent or acceptable, even though he does not state the reasons for this conclusion, as the question at issue is the right to exercise a peremptory challenge given him by the law.

We think no error was committed in admitting testi- . mony in regard to the sale of a half-pint of liquor, as this testimony tended to show the business in which appellant was engaged; that he had whiskey to sell, and therefore has some probative yalue to show his connection with the liquor which had, only a short time before, been manufactured on an island in the river. Lowery v. State, 135 Ark. 159; McMillar v. State, 162 Ark. 45; Morris v. State, 165 Ark. 452.

We find no error in giving or in refusing to give instructions. The instructions were to the effect that the State was not required to show that appellant owned the still, or would have owned the manufactured product; but that it was necessary to show, and would have been sufficient, if shown, that appellant was present while the still was in operation, aiding, abetting or assisting in its operation.

Appellant asked an instruction to the effect that he could not be convicted unless the jury found that he was engaged in making liquor. The State was not required to show that this was his employment, or that he had- previously made whiskey. As we have said, the State was not required to show that he owned the still, or would have owned the manufactured product. It was only necessary for the jury to find that he was present, aiding, abetting or assisting in making the liquor, and the court so instructed the jury.

Other instructions requested by appellant, in so far as they correctly declared the law, were covered by instructions given.

No error appears in giving or in refusing to give instructions, but the judgment must be reversed for the comment of the court, set out above.

Hart and Humphreys, JJ., dissent.'


author: Humphreys, J.

text:
    Lynn v. Martin.
    Opinion delivered November 17, 1924.
    1. Evidence — declaration of donor. — In a suit, by a surviving husband to quiet his title to land alleged to have been orally given to him by his deceased wife, evidence of statements made by the wife with reference to his title, made in his absence but while she was residing on the land, held admissible.
    2. Frauds, statute of — parol gift of land — part performance.— A parol gift of land will not be enforced unless followed by possession and valuable improvements made by the donee, or unless there are some very special facts which would render the failure to complete the donation peculiarly inequitable and unjust.
    3. Frauds, statute of — parol gift — exclusiveness of possession. —Possession, to take a parol gift out of the statute, must be exclusive, evincing the birth of a new estate, as distinguished from the continuation of an old one, and must not be referable to an antecedent right.
    4. Frauds, statute of — possession of husband not exclusive where. — A husband, moving on land with his wife and occupying it with her until her death, obtained no estate therein by parol . gift from-her, his possession not being exclusive.
    Appeal from Ouachita 'Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed in part.

      Smead & Meek, Powell é Smead, and C. L. Johnson, for appellants.
    The statute of fraud is not applicable. The allegation that at the time the parol gift was made appellant and his wife were in possession of the land, living thereon as husband and wife, is not borne out by the undisputed testimony. On the contrary, the testimony shows that the two essentials, necessary to enforce a parol gift of land, viz., possession and the placing'of valuable.and substantial improvements thereon by the donee, are present, and bring this case within the rule laid down in Yowig v. Crawford, 82 Ark. 33. See also 135 Ark. 9; 15 Ark. 628. Declarations against interest are admissible against all who succeed to the declarant’s interest, or who claim under him. 150 Ark. 55; 103 Ark. 183; 93 Ark. 190. Declarations of a donor against the title of 'the donee, made in his absence, are not admissible in evidence to defeat title of the donee. 11 Ark. 249 ; 96 Ark. 589.

      J. W. Warren and Gaughan & Gifford, for appellee.
    In the absence of any writing evidencing a transfer of land, or an interest in land, the evidence required must be most conclusive. This is particularly true of a parol gift, and especially so of a gift by a wife to a husband. Such transfers are scrutinized by the courts with g-reat care, and enforced with reluctance. 170 S. W; 1024 (Ark.); 95 Ark. 523; 116 Ark. 142. The evidence should be of equal quality with that required to establish a resulting trust (104 Ark. 311); or in the case of reformation of a deed. Bishop on Contracts, par. 708; 71 Ark. 614; 79 Ark. 262; 81 Ark. 425; 91 Ark. 162; 94 Ark. 200; 17 Oyc. 771, 778, “Evidence.” The fact that appellant took possession with his wife cannot be construed as a corroborating circumstance, such action being the reasonable and natural thing to do, without reference to any gift of land. And, as to the making of improvements, the presumption is that improvements placed by a husband on his wife’s lands are for her benefit, and intended as a gift to her. 86 Ark. 448, 451; 104 Ark. 311. The grant was void under the statute of frauds. The joint possession of husband and wife, living together as such, is not such possession on the part of the husband as to take the case out of the. statute. Such possession is not exclusive nor does it evince the birth of a new estate. 136 Ark. 326; 142 Ark. 176, 179; i82 Ark. 33. Until a contract or agreement for the sale or gift of lands is proved, proof of the placing of improvements thereon will not take the case out of the statute of frauds. 137 Ark. 464.
   Humphreys, J.

This suit was brought in the second division of the chancery court of Ouachita County by appellant against appellee to quiet and confirm title to 200 acres of land in said county in himself. He alleged that he acquired title to said land by oral gift from Ins wife, Lula Lynn, who was appellee’s sister; that he immediately entered into possession thereof -and had made valuable improvements thereon; that Lula Lynn died in the year 1921, and that appellee was claiming title to said tract of land by inheritance from his'wife.

Appellee filed an answer denying that her sister had made an oral gift and put appellant in possession of the land in her lifetime, and that pursuant thereto he had made valuable improvements thereon. She alleged that her sister died intestate, leaving appellee as her sole and only heir, and, by way of further defense to the alleged oral gift, pleaded the statute of frauds in bar of appellant’s alleged cause of action. -

Appellee also filed a cross-bill as administratrix of the estate of her deceased sister, claiming rents upon the land for the year 1922 and thereafter.

'The cause was submitted to the court upon the pleadings and testimony adduced by the parties, which resulted in a finding that Lula Lynn, in' her lifetime, gave the lands to appellant for and during his life, and a decree dismissing the bill of appellant and the cross-bill of appellee.

From the finding and decree both appellant and appellee have prosecuted an appeal to this court.

In determining the issues presented by this appeal it will not be necessary to set out the testimony at length. A summary thereof will suffice.

Some time prior to 1915, the father of appellee and appellant’s wife, John .Dunlap, died, leaving his widow, Clara Dunlap, and his two daughters, Lula Lynn and Cora- Martin, surviving him, who were the legatees in his will. He devised his home place, consisting of about 600 acres of land* to his two daughters, subject to a life estate therein to their mother, Clara Dunlap. Appellant and his wife moved to the Dunlap homestead for the purpose of taking care of Clara Dunlap.' Appellant assumed the management of the place, and appropriated the income to the use of himself and family. Mrs. Dunlap subsequently died, and the farm was divided in kind between Lula Lynn and appellee. In the division appellee got the house and Lula Lynn 360 acres on the west end of the tract-. Immediately thereafter Cora Martin moved into the old home, and appellant rented the Carter place, near by, until he could build a house on the lands awarded to his wife. They were in debt, and borrowed $500 on 160 acres of the land, which was used to pay the debts and conduct the farm. Appellant took charge and managed the land assigned to his wife just as he had done before the division. He testified that,-while living on the Carter place, his wife gave him the 200-acre tract with the understanding that he would improve and reside upon it, retaining for herself the other 160 acres; that he bought a house for $100, moved it in sections, and put it up on the 200-acre tract which his wife had given him, and, when it had been completed, he and his wife moved . to and resided upon the farm; that, during the time they resided upon it, he expended about $900 in making permanent improvements thereon. In the management of the farm' appellant appropriated the income from the 360-acre tract to the use of himself and family, rendering no separate account to his wife for the income off of the 160-acre tract. Later on they mortgaged the’ 160-acre tract to the Federal Land Bank for $1,250, out of which they paid the $500 mortgage. The balance of the money was used by appellant in conducting the farm "and in making the necessary repairs and improvements thereon. The 360-acre tract remained upon the taxbooks in the name of Lula Lynn, and the taxes were paid by appellant in her name, out of the income from the farm. Appellant testified that he never asked his wife for a deed to the 200-acre tract because he felt a delicacy in-doing so.

A number of witnesses testified to diverse statements concerning the land made by Lula Lynn to them during the time she and appellant resided upon the farm.; Some of them testified that she said she intended to will¿ appellant a life estate in the tract, others that ’she hád' given him a life estate therein, and still others that she had given the land outright to him. Objection was made by appellant to the introduction of statements made by her in his absence reflecting upon his title. We think the evidence was properly admitted, as she was residing upon the land at the time she made the statements. We shall refrain from analyzing this testimony, because, in our opinion, the plea of the statute of frauds is applicable and controlling in this case.

The record reflects that appellant and his wife moved upon the 200-acre tract as soon as the house was ready for occupancy. They moved there at the same time and occupied the premises as husband and wife until her death.- It was a joint possession of husiband and wife, and not an exclusive possession by appellant. In the cáse of Young v. Crawford, 82 Ark. 33, this court adopted the following rule with reference to the sufficiency of a parol gift of lands, announced by Prof. Pomeroy in his work oh Specific Performance of Contracts (2d ed.) § 130: “A parol gift of land will not be enforced unless followed by possession and valuable improvements made by the donee, or unless there are some very special facts which would render the failure to complete the donation peculiarly inequitable and unjust.” -

The possession referred to in this rule means an exclusive possession, for it was said, in the case of Rugen v. Vaughan, 142 Ark. 176, that “the court has held that possession, to have the effect to take the case out of th¿ statute, must be exclusive, evincing the birth of a new estate, and distinguished from the continuation of an old one; and must not be referable to an antecedent right.”

In view of this well settled principle of law, the court erred in finding that appellant had obtained a life estate in the 200:acre tract of land by parol gift from his wife and in dismissing appellee’s' cross-bill for an accounting of rents and profits, after appellee made a d'einahd for the possession of the land. It is not disclosed’just’when this demand was made. The' court properly dismissed appellant’s bill to quiet'his title, and to that extent the decree is affirmed. In all other respects the decree is reversed, and the canse remanded with directions to quiet the'title to the 200 acres in appellee and to place her in possession thereof. Also to ascertain the rental value of the tract after appellee demanded possession of the land from appellant, or,- if she did not demand possession, from the date of the institution of this suit to date, and to render a personal judgment against appellant for the amount.


author: ‘ Humphreys, J.

text:
    McKee v. Waters.
    Opinion delivered November 17, 1924.
    1. Homestead — exemption prom execution sale. — Under Const. 1874, art. 9, § 3, and Crawford & Moses’ Dig-., § 5539, a judgment debtor’s homestead is exempt from exegution sale, except for the debts mentioned in the constitutional provision.
    2. Homestead — debtor not estopped by silence. — Though a judg- . ment debtor was present at an execution sale of his homestead and failed to object or protest, he is not estopped thereafter from attacking the validity o.f such sale.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor.

      Grmette & Bayner, for appellants.
    The indebtedness for which the judgment was obtained became fixed and determined, and therefore,- in legal contemplation, incurred, subsequent to April 10, 1920, the date Waters received notice of final proof, and before the issuance of his patent, and the land -is liable for the satisfaction of the debt. 80 Colo. 93; 36 Am. St. Rep. 266. Waters is estopped by.his standing by and remaining silent at the sale under «the execution. 35 Ark. 365, 376; 39 Ark. 131, 134; 147 Ark. 555, 228-S..W. .51$ 51 Kansas, 233; 37 Am. St. Rep. 273. ...
   ‘ Humphreys, J.

Appellee filed suit in the chancery court of the' Chickasawba District of Mississippi County against appellants, to set aside an execution sale of the SW14 of section 30, township 16 N., range 10 E., to satisfy a judgment in favor of Charles McKee, State Bank Commissioner, which had been assigned to Harry L. Johnson. One of .the appellants, J. T. Alford, purchased the land at the execution sale. The basis of appellee’s suit was that the land in question constituted his homestead, and that same was exempt from sale under execution of the judgment against him in favor of said Bank Commissioner. , * - '

Appellants filed an answer denying the allegations of the complaint, and, by way of further defense, pleading an estoppel.

The cause was submitted to the court upon the pleadings, testimony adduced by the respective parties, and certain stipulations filed by them, which resulted in a decree voiding the execution sale and removing same as a cloud upon the title of appellee.

The record reflects that appellee acquired a patent for the land from the United States G-overnment on April 25,1921, and continued to reside thereon after procuring the patent; that on June 21 thereafter said judgment was obtained by the Bank Commissioner in the circuit court of said district and county, and afterwards assigned to Harry T. Johnson, who had the land sold under execution to satisfy the judgment; that the judgment represented a 'balance due from appellee to the Bank of Blytheville, upon checks drawn by appellee on said bank, and which had been paid by it before closing its doors; that J. T. Alford made the highest competitive bid, and purchased the land; that appellee was present at the sale, but entered no objection nor protest.

Appellant’s first contention for a reversal is that appellee’s homestead was subject to sale under execution. Under the Constitution of this 'State, a debtor ’s homestead is exempt from levy and sale under execution issued out of any court, upon the decree or judgment, unless same is for an ■ indebtedness excepted under the provisions of the law. Const, of 1874, art. 9, § 3; Crawford & Moses’ Digest, § 5539'. The indebtedness for which, the judgment was rendered in the circuit court and upon which execution was issued did not come within the exemption specified in the Constitution and statute.

Appellant’s next contention for a reversal of the decree is that appellee was estopped from attacking the validity of the sale by his silence or failure to object or protest when the sale was being made in his hearing and presence. This contention is not sound, as § 5543 of Crawford & Moses’ Digest permits a debtor “to select and claim his homestead after or before its sale on execution.” The law goes further and permits the debtor “to set up his right of homestead when suit is brought against him for the possession thereof by the purchaser at the sale.” Dean v. Cole, 141 Ark. 177; Spurlock v. Gaikens, 146 Ark. 50. It is unnecessary to discuss whether the indebtedness represented by the judgment accrued before or after appellee was entitled to a patent to the land, for the homestead was protected from sale under execution by the homestead exemption laws of the 'State of Arkansas.

No error appearing, the decree is affirmed.


author: Woon, J.

text:
    Cartier v. Hengstler.
    Opinion delivered November 24, 1924.
    1. Limitation of actions — suspension by fraud. — Fraud in obtaining the title to land will not suspend the operation of the statute of limitations against an action to set aside the'title any longer than it is concealed from the plaintiff’s knowledge.
    2. Equity — laches.—A party who sets up a fraudulent misrepresentation of fact as a ground of relief or defense in equity must not be guilty of laches.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.

      Gaughan <& Sifford, for appellants.
    1. The parties were tenants in common, not partners nor joint adventurers in the purchase and sale of the lands in controversy, and, such' being the case, appellee had no cause of action. Appellee cannot contend that'there was a written agreement between him, Rath and. Cartier, that neither of them should sell or dispose of his interest in the lands without the consent of the others, _and an oral agreement to that effect would have been void as in violation of the statute of frauds. C. & M. Dig., § 4862. 'Before the purchasers would have become partners or joint adventurers, there must have been some agreement, either expressed or implied, to do something more than merely to purchase the lands. As to joint adventures and limited partnerships, see 27 N. Y. Supp. 285; 101 N. Y. Supp. 22; 30 Cyc. 751-752; 23 Cyc. 453. The facts in this case do not create the relationship of partners any more than the facts in the case of Punvphreys v. Fwrlow, 144 Ark. 219. See also 97 Ark. 390; 91 Ark. 26.
    2.- .Appellee’s allegation that Lucy Rath is not an innocent purchaser, that the conveyance by her and the German Lutheran Synod to Cartier, and 'by the latter to her, were without consideration, and was merely a scheme to place title in her, is denied by the appellant, and the burden therefore is on the appellee to prove by a clear preponderance of the evidence that she is not an innocent purchaser. 35 Ark. 100; 4 Ark. 296; 132 Ark. 158; 39 Cyc. 1785,1786; 23 Ark. 735. .

      James F. Lawrence, G. W. German, and Lee G. Hull, for appellee.
    If the parties were mere tenants in common, which is denied, that would not be any justification for practicing upon Hengstler a fraud such as the record discloses. These parties were, however, joint adventurers, as is amply supported by the following authorities: 88 Ark. 373> 114 S. W. 714; 36 Nev. 623; Am. Cases, 1916A, 1202; • 121 Minn. 192,141 N. W. 108; 65 W. Ya. 493; Am. Cases 1018, and note: 146 Wis. 130, 131 N. W. 339; 133 N. W. 288; 110 Pac. 705; 68 W. Ya. 317, 69 S. E. 1000; 47 W. Ya. 63; 15 R. C. L. 500-508; 27 N. Y. Supp. 785. The contention that the heirs or legatees of William Bath could take title to, or an interest in, these lands, as innocent purchasers for value, under the facts in evidence, is not worthy of" consideration. See to the contrary 121 Minn. 192, 141 N. W. 108, Am. Cases 1914C 689; 78 N. J. Eq. 270, 79 Atl. 419; 122 N. Y. S. 680. Differing .materially from a partnership, the rule as to co-adventures is that it is not necessary to prove a partnership agreement, but the only prerequisite is that the individuals associate themselves together for a common purpose for their common good. 15'2 N. W. 43. And the co-adventurers are bound to exercise the highest degree of good faith toward one another. 227 S. W. 370; 76 N. J. Eq. 592; 74 Atl. 130; 27 Wyo. 423, 200 Pac. 96; 117 Minn. 235, 135 N. W. 820; 130 Minn. 450, 153 N. W. 874; 212 N. Y. 507, 106 N. E. 321; L. B. A. 1915B, 160; 194 Fed. 577.. The law not only exacts the utmost good faith, but it also forbids the accrual of any profit or advantage to one member of the adventure that is not shared by all. 165 la. 703; 194 Fed. 534; 121 Minn. 192; 152 N. W. 43; 212 N. Y. 507, 106 N. E. 321, L. B. A. 1915B, 160. A joint adventurer has the right to assume that his co-adventurer has acted in good faith in reporting the cost or sale of property, and is not chargeable with negligence if he relies on the latter’s statements. 165 la. 703,147 N. W. Í64. He may recover from his associates secret commissions or rebates on purchase price retained by them, his proportionate share. 28 S. Dak. 239, 133 N. W. 288; 36 Nev. 623, 134 Pac. 461, 50 L. B. A. (N. S.) 1046; 78 So. 160.. A joint adventure cannot be terminated at the will of a member. If no date is fixed for the joint adventure’s termination, the agreement remains in force until its purpose is accomplished. 152 N. W. 43; 60 So. 591; 155 N. Y. S. 230. Where an agreement is made for the purchase and sale of real estate, it is not material whether the title is taken in the name of one adventurer or all. If it is taken in the name of one or more of the adventurers, it is impressed with, a trust for the benefit of the joint adventurers and so continues until it passes into the' hands of a bona fide purchaser. 121 Minn. 192, 141 N. W. 108; 117 Minn. 235,135 N. W. 820. Where an enterprise has been launched and contributions made by parties who subsequently become delinquent, active steps to determine the undertaking must be made by those not in default, to exclude the delinquents from further participation, if it is intended to deny their right to share in the subsequent profits. 67 So. 591; 202 111. App. 563; 72 So. 365; 81 W. Ya. 1, 94 S. E. 388; 129'Wis. 524, 109 N. W. 576.
   Woon, J.

On the 24th.of .February, 1921, the plaintiff below (appellee here) instituted this action in the chancery court of Ouachita County against the defendants below (appellants here). The appellee alleged that all parties to the action were residents of Ludington, Mason County, Michigan. The appellee seeks to recover a one-third interest in about four thousand acres of land situated in Ouachita County, Arkansas, about three thousand of which he alleged in his complaint were purchased by himself, Warren A. Cartier and William Eath, all of the city of Ludington, Michigan, under parol partnership agreement entered into between them in January, 1902, for the purpose of purchasing the lands, and that about one thousand acres were purchased by Cartier and Eath in their own names. The lands are described in the complaint. The appellee alleged that on the 5th .of June, 1912, Cartier and Eath, with the intent to defraud the appellee, negotiated a sale of the timber on the .lands with one T. S. Grayson of Magnolia, Arkansas, for the sum of $95,000. Cartier represented to the appellee that, on the 12th of June, 1912, he had received an offer of $67,500 for the lands; that Cartier and Eath made representations to the effect that the partnership would receive a good profit by accepting the offer, and that, if they failed to accept it, it would result in a great loss, because the price of the timber would go down, and it was subject to be destroyed by fire, which representations Cartier and Rath, knew to be false, and that they were made for the purpose of misleading the appellee; that the appellee had no special knowledge of the timber and lands, and relied upon these representations of Cartier and Rath, and joined with them in the execution of a deed to T. J. Gaughan for the express consideration of $67,500, which deed bore date of June 12, 1912, and was duly recorded June 17, 1912; that on June 12, 1921, Gaughan reconveyed the lands to Cartier for an alleged consideration of $95,000, which deed was also recorded on June 17, 1912; that on June 24,1912, Cartier conveyed to Rath an undivided half interest in all the lands for the consideration of $47,500, which deed was recorded July 3, 1912; that the sale of the timber by Cartier to Grayson, negotiated on June 5, was finally consummated and'the deed executed for the same on June 26, 1912, which deed, at' the request of Cartier and Rath, Grayson did not- have recorded; that,'after these transactions, Rath died, September 13, 1916, and appellant Ostendorf was named as executor of his will; that the will devised Ratli’s interest in the lands to the German Lutheran Synod of certain States, subject to a life estate in his wife; that these lands were- conveyed by the synod and his wife to Cartier on July 18, 1918, and Cartier, on the 8th of August, 1918, conveyed an undivided half interest to Lucy Rath for the alleged consideration of $5,000, all of which deeds were duly recorded in Ouachita County; that Cartier deliberately misled the appellee by representing that all the lands described in the complaint were to be included in the deed to Gaughan, whereas some 1,000 acres which had been purchased in the name of Cartier and Rath were not included in the deed, but were conveyed in a separate deed to Gaughan for an alleged consideration of $27,500 on June 12, 1912, which deed was also recorded on June 17, 1912; The appellee further alleged that he had no knowledge of the circumstances surrounding- the conveyances to Gaughan and the negotiations for sale of the timber to Grayson until these circumstances were brought to his knowledge by the reprcsentatives of a certain oil company, during the latter days of September, 1919. The appellee further alleged that the title to the lands appeared in Cartier and Lucy Rath, and that they were about to sell the same, and would do so unless restrained; that they were indebted to the appellee in the sum of $5,000, balance due him from the partnership on account of the sale of the timber. Appellee prayed for an accounting of the partnership dealings and transactions,' that he have his proportion of the proceeds of the sale of timber found to be partnership funds, that Cartier and Mrs. Rath be required to convey their interest in the lands, and that the lands be partitioned according to the interests of the respective parties, and that they be enjoined from con.veying or incumbering the lands .in any manner, and for such other and further relief as in a court of equity he was entitled to.

The appellants denied that there was any partnership between Cartier, Rath, and the appellee. They admitted the purchase of a large body of the lands in controversy by them with the appellee, but alleged that these lands were not purchased by them as partners, but were held and purchased by them as tenants in common. They alleged that the certain other lands described in the complaint were afterwards purchased by Cartier and Rath as tenants in common, in which the appellee was not interested. They denied specifically all of the' allegations of the complaint as to fraud and as- to the partnership. They alleged that on the 25th of May," 1912, the appellee executed an option to Cartier agreeing to convey to him an undivided one-third interest in the lands within sixty days for the price of $23,333.33, less a commission of five per cent; that, before the expiration of the option, appellee agreed to, and did, accept the sum of $22,500 for an. undivided one-third ■ interest in the lands, and agreed to pay a commission of five per cent, on the sale;-that, on the 24th of June, appellee executed his receipt to Cartier-in full for the sale of the lands and-commission, in- the sum of $21,37-5. Appellants alleged that appellee had knowledge of all the circumstances and facts concerning the conveyance of the. lands to Gaughan.- They admitted the purchase of the lands by Cartier from Gaughan, and the sale of the timber by him to Grayson, and stated that said lands, after the removal of the timber, could not have been disposed of on the market for $1 per acre; that the present value is speculative, depending on- the prospects for the discovery of gas and oil thereon. They denied that appellee had any interest in the lands, and denied that he was entitled to any accounting as of a partnership between appellee, Cartier and Rath. Appellants set up that plaintiff, in the year 1912, or soon- thereafter, had full knowledge of the matters' and things complained of in his complaint, or, by the exercise of reasonable diligence, could have had knowledge of all matters and things set forth in his complaint; and that his suit herein was not brought within three years after the discovery by him of the acts and things complained of, or. within three years of the time within which, by reasonable diligence, he might have had knowledge of the matters and things complained of.” There was a reply by the appellee to the answer which he asked to be taken as an amendment to his original complaint, hut the allegations of which we deem it unnecessary to set forth, as the issues are sufficiently stated in the complaint and answer.

The court, after hearing the evidence, which consisted of testimony taken in open court, and which was afterwards reduced to writing, duly authenticated and brought into the record, together with various documents, which were introduced in evidence, found that the.appellee was the owner of an undivided one-third interest in all the lands purchased in the names of Warren A. Cartier, William Rath and Andrew Hengstler _ during the years 1902 and 1903, and held by them as partners, amounting, in the aggregate, to about 3,000 acres; a decree was rendered in favor of the appellee to that effect, subject to a chárge of $1,477.93 as appellee’s part of the taxes and expenses incurred with, reference to thé lands in favor of the appellants.

This decree of the court was bottomed on the findings of fact that the lands were purchased by the appellee, Cartier and Eath, as partners and joint adventurers of appellee, and that afterward Cartier arid Eath, by fraud, deceit and misrepresentation practiced upon the appellee, induced him to join with them in the sale of the lands to Gaughan, and that the subsequent conveyances of the lands by Gaughan to Cartier and by Cartier to Eath of a half interest, and by Cartier, acting for himself and Eath, of the timber thereon to Grayson, were the result of the deceit and fraud practiced upon the appellee; that the real facts with reference to these conveyances were concealed from appellee, and that he was thereby defrauded out of a one-third undivided interest in all the lands described.

From the decree of the court the appellants have prosecuted their appeal, and the appellee has cross- ■ appealed.

The record of the testimony bearing upon the issues ■as to whether the lands were purchased, by appellee, Cartier, and Eath, as partners or joint adventurers, and whether Cartier and Eath perpetrated a fraud upon the appellee by which he was deprived of his interest in the lands, is voluminous. But the conclusion reached by a majority of the court on the issues of the statute of limitations and laches makes it unnecessary, to set out arid discuss the testimony bearing upon the other issues.

It appears from the evidence that, on the 25th of May, 1912, appellee executed an instrument to Cartier, giving Cartier an option to purchase appellee’s one-third interest in the 3,000 acres of land at the price of $23,333.33, less a ■commission of five per cent., the option to continue for sixty days. On June 12, 1912, appellee, Cartier and Eath and their wives joined in a deed conveying the lands in controversy to T. J. Gaughan for the consideration of $67,500, which deed was recorded on June 17, 1912. On June 24, 1912, appellee, executed a receipt in which he acknowledged he received from Cartier the sum of $21,375 in full for the sale, of lands owned jointly by appellee, Cartier and Bath, consisting of 3,000 acres in Onachita County. Nearly nine years therefore had elapsed from the date of these transactions which appellee claims were the result of fraud and misrepresentation practiced upon him by his partners or associates in the joint adventure, and by which he was induced to sell his interest in the lands in controversy. Appellee claims and testifies that he found out that a fraud had been perpetrated upon him soon after.oil had been discovered in that locality. One Omar Farrell told him about it. This was in 1919, at which time Farrell secured from appellee an oil and gas lease on 3,240' acres of the lands in controversy. Appellee also testified that he didn’t know the different ones who told him about it; that he filed this suit when he found it out. He was asked, “Did Mr. Omar Farrell get you to bring this lawsuit?” and answered, “He spoke to me about it; yes sir.”

The testimony of Omar Farrell was to the effect that he told the appellee about' the condition of the title in 1919. After he procured the lease from the appellee, he agreed with the appellee to bring this lawsuit in his name, and that he would bear the expenses of the litigation.

Judge Tate, the agent of the appellee and of Bath and Cartier, through whom the original negotiations for the purchase of the lands were conducted, and who looked after the lands for them after the purchase, in the paying of taxes, purchases, sales, etc., was asked in regard to the sale of the lands, among other questions, the following :

“Q. Did he (Hengstler) know.and was he aware of the fact that this land was going to be returned to Bath and Cartier? A. He certainly did, or knew about it afterwards; maybe he did or didn’t — I don’t know myself, I didn’t know myself right at the time. Q. You don’t know whether Hengstler knew what was being done at the time or not? A. I told him that I would put his lands' in and have them sold. Q. The deed that Hengstler signed showed that he was selling the land and all? A. Yes sir. Q. Yon do not know at all that lie (Hengstler) had any knowledge that Rath and Cartier were to get the land back by reconveyance from Mr. G-aughan? A. If he did not know it then, he acquired that knowledge afterwards. Q. How do yon know he acquired that knowledge? A. I wrote him. Q. Where is that letter? A. I don’t know. Q. How many days afterwards? A. Oh, about a week,-1 guess. Q. That has been eleven years ago? A. Yes sir; and he wrote me a letter and bragged about that trade. Q. Where is that letter? A. I don’t know. Q. You told him that Rath and Cartier were to get his land for nothing? A. I told him that he got the money and they got the land and paper. Q. You told him that Rath and Cartier got it back through Mr. Gaughan? A. Hengstler knew, all about it. Q. You are testifying as strong as you can for Rath and Cartier, and you represented Hengstler? A. I treated him exactly fair — I told him we got the money, and he congratulated me. Q. You told him that all he gut was one-third of the money that Rath and Cartier gut for the timber? A. No sir; I told him what it sold for. Q. You told him what the land for? A. I told him they took the lands and paper and we got the money. Q. What lands ? A. They got the lands back to hold with this paper as part of the security. Q. You told Mr. Hengstler that, in the different deeds here, that Rath and Cartier gut as much money as he did and gut the land in addition?. A. Yes sir; got it all, but the consideration was that -he and I get the money; he knew about that. Q. I asked you that question a while ago, and you evaded it. A. I did n ot intend to. ”

He further testified that cut-over lands in 1912 generally sold from fifty cents to one dollar per acre. The lands were hardly worth paying taxes on. Two-thirds of the lands was slashy creek bottoms, unfit for cultivation.

Cartier testified as follows:

“Q. You paid Mr. Hengstler for his interest in the land and timber out of what you gut for the timber, and you aud Rath got the land? A. That is the way it is —we got the land. Q. Did you tell Mr. Hengstler that you were making these different conveyances, and that you were paying him one-third of what you got out of the timber, and that you and Rath had gotten the land for nothing? A. To the best of my recollection I did after he received his money, $20,000, I told him that the land did not go, and asked him if he cared, and he says, ‘No, I am satisfied,! got an excess profit, and I am satisfied! Q. Why didn’t you tell him that beforehand? A. I had the option to do as I pleased. Q. You were all partners? A. No sir. ,Q. You felt that you had a perfect right to sell his land and timber and pay him for what you got out of the timber, and then not disclose the facts to him? A. When he gave me the option, I could do as I pleased as long as he got his money. Q. When he gave you the option, you did not have any idea of selling the timber to Grayson? A. There had been some negotiations, but nothing definite. Q. There was so little chance that you did not even mention it to him? A. Might have, but I don’t remember. Q. After-it was all done and you had sold his interest in the land and conveyed it around so you and Rath got all of the land and paid him out of his interest in the timber on his own land, then you told him that you done that? A. I think I did. Q. Why did you? A. To give him his interest in the land if he wanted to assume the liability.’ Q. You wanted him to have the land if he wanted to assume the liability? A. Yes sir. Q. W7hat liability was there to assume? A. To care for the land for ten years, which was covered by the timber deed, and take care of the cost, pay the taxes. Q. What has it cost to care for this land which was off of the market? A. Taxes on the land and the incidental expenses run up pretty close to $5,000.”

It is unnecessary to decide, and we do not decide, whether the lands, including the 3,000 acres purchased in the names of apnellee, Cartier and Rath, and the 1,000 acres purchased in the names of Cartier and Rath, were all purchased as partnership lands or under agreement for joint adventure. Nor is it necessary to decide whether Cartier and Eath defrauded the appellee in the manner in which they obtained the title to his lands. For, if it be conceded that Cartier and Eath perpetrated a fraud upon the appellee in the manner alleged in the complaint, nevertheless it is proved by a preponderance of the evidence, above set forth, that appellee had knowledge of the fraud soon after the documents were executed consummating the alleged fraudulent transaction of which he complained. The testimony of Tate and Cartier shows that he had such knowledge. Tate .testified that appellee had visited the lands in May, 1912, the month before they were sold to Gauglian, and had ascertained their value, and he and Cartier both testified that they informed appellee of the facts concerning the sale of the timber on the lands to Grayson. We are convinced, from the above testimony, that appellee had full knowledge of the facts soon after they occurred, which he-now claims constituted deceit and fraud on'the part-of Cartier and Eath, and which resulted in depriving* him of his interest in all the lands in controversy. Such being the case, appellee and cross-appellant is barred -from maintaining this action by the three-year statute of limitation, and also by laches.

In McGaughey v. Brown, 46 Ark. 25, we held (quoting syllabus): “Fraud in obtaining title to property will not suspend the operation of the statute of limitations against an action to set aside the title any longer than it is concealed from the knowledge of the plaintiff.”' See also McNeely v. Terry, 61 Ark. 527; Salinger v. Black, 68 Ark. 449; Meier v. Hart, 143 Ark. 539; 2 Wood on Limitations, p. 1381, § 276.

The statute of limitations was properly pleaded by the appellants, and it must avail in bar of appellee’s action. .Appellee and cross-appellant is also barred by laches. He is seeking affirmative relief in a court of chancery. Inasmuch as fraud renders a transaction voidable at the election of the person defrauded, the law requires that the exercise of this election shall he in a reasonable time after the discovery of the fraud. “A party who sets up a fraudulent misrepresentation of fact as a ground of relief or defense must not be guilty of laches.” Smith on Law of Frauds, p. 269, § 249. See Davis v. Harrell, 101 Ark. 230; Board of Levee Inspectors of Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467, and numerous other cases in 2 Crawford’s Dig’est, p. 1875, “Laches and Stale Demands.”

The testimony set out above shows that appellee and cross-appellant is guilty of laches. The court erred in its‘decree, and the same is therefore reversed, and the cause will be remanded with directions that the chancery court enter a decree dismissing appellee’s complaint.