author: Smith, J. McCulloch, C. J.,

text:
    McCarroll v. Grand Lodge of the I. O. O. F. of Arkansas.
    Opinion delivered June 26, 1922.
    Charities — cy pres doctrine applied. — Under Stat. 43 Eliz., c. 4, establishing the cy pres doctrine applicable to charitable bequests, where a testator disinherited his heirs and devised certain' land as a site for an orphans’ home to be under the direction of a certain benevolent order, and the rest of his property to establish and maintain a sanitarium to be under the control of the same lodge, aíter a compromise of a contest of the will by which the lodge obtained land and property insufficient to carry out the purposes of the devise, in view of the fact that the land was bringing in a small income and depreciating in value, a decree of specific performance of a contract of sale of the land and that the proceeds-be applied to the upkeep of a home for widows and orphans maintained by the same order for charitáble purposes was proper.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      W. E. Beloate, for appellant interveners.
    The will creates two charitable trusts, first, a sanitarium fund for treatment of diseases, and, second, a site for an orphans’ home by providing certain described lands, known as the Robbins farm, as the situs. These are recognized by our courts as “charities” and entitled to protection as such. 97 Ark. 532.
    Under a will ordered to trustees for a public charity, with or without prohibition therein against a sale, if a sale would defeat the object of the charity, the trustees would have no power to sell. Id; 17 Ark. 483; 79 Ark. 550; 86 Ark. 218.,
    The decree with reference to the charity for sanitarium purposes should be reversed for want of proper parties, as there is no one in court representing them or asking any relief. 34 Ark. 391.
    When trustees, with knowledge of the charitable use, and there being no reasonable excuse for mistake, have misappropriated the whole or any part of the income, they will be held to account for it during the whole period of the misappropriation. The trustees must carry out the scheme outlined by the donor. 10 Allen, 98; 128 Mass. 258.
    The cy pres doctrine is not now recognized in many of the States, and where recognized it applies only where an apparent charitable intention has failed. It is not applicable so long as the original scheme of the testator is applicable. 87 Me. 414; 3 Gray 280; 151 Mass. 364.

      The collateral heirs had no interest. There was no condition that would warrant their intrusion. 5 Wall. (IT. S.) 119; Í7 Ark. 483; 2 Barb. Ch. (N. Y.) 242-290. Nonuse of the trust property does not forfeit to the grantor heirs. 5 A. & E. Enc. 915, sub. 2 Y.

      Z. M. McCarroll, pro se.

    Adopts brief of intervener pertaining to the Bobbins farm, and says that the May Bryant judgment of $10,000, pleaded by the plaintiff, is one of the probate court, and as Shirey has been dead for more than 12 years, the same cannot be asserted against the lands. 37 Ark. 155; 79 Id. 570.

      A. E. Rowell, E. W. Applegate and Samuel M. Casey, for appellees.
    1. The chancery court had jurisdiction because (1st) this is a suit for specific performance against Z. M. McCarroll, and (2d), it calls for a construction of the will of W. A. Shirey.
    2. The decree of the court below may be justified on either of two grounds, viz: (1) The decree of the chancery court in 1910 wherein these lands were set apart to the grand lodge in a suit where all the heirs of A. W. Shirey, and the widow, were parties, in which decree these lands to the grand lodge to be used as it deemed best. (2) Under the cy pres doctrine. This doctrine is well established in the jurisprudence of this country, and has received the favorable recognition of most of the States which have had occasion to pass on it. Perry on Trusts, 6th ed., § 723; Id. 725; 2 Story, Equity Jurisprudence, 14th d. §§ 1557, 1571; I Words and Phrass, 1189; 79 Atl. 837, 76 N. H. 96; 82 Atl. 435; 109'Me. 32; 95 S. W. 369, 375, 196 Mo. 234; 3 L. B. A. (N. S.) 237-238; 217 N. Y. 454, 112 N. E. 177; Ann. Cases, 1917-E, 853; 5 B. C. L. “Charities” 364-370, § 113; 11 C. J. 358-364.
   Smith, J.

This appeal involves the construction of the will of A. W. Shirey, the relevant portions of which are as follows:

‘ ‘ JKnow all men by these presents :
“That I, Arthur W. Shirey, being of sound and disposing mind and memory do make, publish and declare the following to be my last will and testament, hereby revoking all testamentary dispositions heretofore made viz:
“1. It is my desires and will that all my just debts be paid by my executors.
“2. I give, devise and bequeath to all persons who upon my death if dying intestate would be entitled under the law to any share or interest in my property, either real or personal, each the sum of one cent in money, and no more.
“3. I give devise and bequeath to Fair Bell Shirey who is now my wife one cent and no more.
. “4. I give and bequeath to each child born or hereafter born of said Fair Bell Shirey the sum of one cent and no more and more particularly I give, devise and bequeath to her child now born, the sum of one cent in money and no more, this child not having been begotten by me and it being unknown to me by whom begotten and the name so far as its Christian surname, nomen or cognomen is concerned of said child being to me unknown and said child is identified and named as fully and completely as above mentioned or my information can furnish a basis for so doing.”
The testator then names the persons who would have been his heirs had he died intestate, and he gave to each of them “one cent and no more, to be paid in money.”

After having thus disposed of all persons who would have taken an interest in his estate had he died intestate, the will reads as follows:

“8. Subject to the payment of the foregoing bequeaths, I will, devise and bequeath to the Independent Order of Odd Fellows of the State of Arkansas all my property, boath real and personal, that I may have title to or any interest in at the time of my death in trust perpetually for the following uses and purposes, to-wit: (a) All my property, boath real and personal, and the revenue and income thereof except the real estate hereinafter particularly described shall be used and devoted to the establishing- and maintenance of a sanitarium under the perpetual management and control of said Grand Lodge of the Independent Order of Odd Fellows of the State of Arkansas. It is my will and dessies that this sanitarium be located and established and maintained at the city of Hot Springs, Arkansas, if that is expedient and practical, or otherwise at such place as shall be expedient and practicable in the judgment of said fraternal order herein named for the following purposes, in said sanitarium, I will and devise that all kinds of diseases be treated (except veneral diseases, such shall be excluded), under the controle of one electic physician and surgeon authorized by the board of the State of Arkansas to practice in said said State this physician and surgeon may be one and the same person, and he shall be acquainted with and approve the following methods of treating diseases and the magnetic treatment and the Yogi phylosophy and the Hindew Oriental phylosophy of curing diseases, electic treatment of diseases and Hypnotism as a treatment of diseases and Hydrophy cure in all its forms of baths and nature cure, cold and hot and all other forms and methods that are successful without drugs and medicines to be added and all future and newly developed methods of treating diseases without the use of drugs. I feel sure that humanity will be largely benefited as soon as these methods of treatment are adopted and the drug treatment abandoned. To this end I have appropriated all my life earnings, and I desire it to be so carried out and to the foregoing method of treatment I desire that baths of all kinds and descriptions be added to assist in eradicating the practitce of drug treatment for the human system. I believe that when my immortal self is in the Great Future Existence that I can and will return to earth to see whát I have left for the good of humanity and to assist in purfeeting my plans which, originated in me while in the body, and I have confidence in the Brotherhood of the Fraternal Order of I. O. O. F. that they will carry out my desier.
“ (b) The following real estate situate in Lawrence County, Arkansas, to wit: All of the Roben farm the SW14 section twenty-two (22), W% N"W)4 section 27, E% NE sec 28 SW NE sec. 28, and NE SE sec 28, all in township 17 N. range 1 E. 400 acres and this is to be used as a location and site for an orphan’s home to be established and maintained thereof under the perpetual controi of said Grand Lodge of the Independent Order of Odd Fellows of the State of Arkansas and for such purposes as may be expediently connected with said orphans’ home for the good of that order, to-wit: To care for orphan children and learn them to work and economize, and that they may be educated for a practical business life a school in said home and that widows of sixty years old and been the wives of odd fellows in good standing be admitted to its fraternal protection all for the good of that order to carrie out and execute my expressed intentions herein above witnessed.
“It is my will, intention and devise that the executor or executors of this my last will and testament shall be such person as may be proposed by the Grand Lodge of the Independent Order of Odd Fellows of the State of Arkansas, and I do hereby appoint as the sole executor of this my last will and testament the person who shall at the time of my death be the Grand Master of said Grand Lodge of the Independent Order of Odd Fellows, and he shall act as such executor until said fraternal order shall in its discretion recommend and appoint some other person or persons as such executor or executors.”

The will was signed and duly attested, and there appeared thereon the following notation:

“I Desier and request each and every Odd Fellow in the State of Arkansas to pay into this sanitarium fund not less than one nore more than Ten Dollars as a nominal sum merely to connect this entier fraternity with the interest and progress of this great institution set up for the health and longevity of our people and for the future good and well fair of all their families and for the future generation. I respectfully solicit you all.”

The will was dated June 23, 1905, and on March 8, 1910, Shirey was assassinated. Shirey left an estate which at the time of his death was supposed to he worth approximately $300,000, and had this sum been realized both the hospital and the orphanage mentioned in 'his will could have been established.

The widow promptly repudiated the will; and the collateral heirs, who had each been given one cent, prepared to contest the will on the ground that Shirey lacked testamentary capacity. After a time the widow, the heirs, and the Grand Lodge of the Odd Fellows compromised their conflicting interests by a decree, under the terms of which the widow took 40 per cent, of the estate; the heirs 20 per cent.; and the Grand Lodge 40 per cent. The widow, by a bill of review, sought to set aside this decree. Byrkett v. Grand Lodge, 131 Ark. 476.

Many vicissitudes have attended this estate since this compromise decree was entered, and its appears there have been more than fifty lawsuits of different kinds concerning this property. It appears that title to some of the lands has failed, and one very substantial judgment was- recovered against the, estate. Josephs v. Briant, 115 Ark. 538; Josephs v. Briant, 108 Ark. 171.

The testator was assassinated, and the grand lodge undertook to discover the assassin, and for that purpose employed a well-known detective agency to investigate the case, and acting upon the investigation and report of that agency, caused the reputed assassin to be prosecuted. This prosecution resulted in an acquittal, but a large expense was incurred in this investigation and prosecution.

The affirmative showing is made that the litigation in regard to the estate was unavoidable on the part of the grand lodge, and resulted from its effort to protect the estate and hold it intact.

At present the grand lodge claims title to about 2,100 acres of land, of which about 500 acres are in cultivation, and at the annual meeting of the grand lodge in 1921 a resolution was adopted directing the trustees of the grand lodge to sell these lands.

The' lands were advertised in the newspapers of several cities, and after receiving and considering all the bids it was decided that the offer of Z. M. McCarroll was the highest and best bid, and a contract was entered into with him for the purchase of these lands. An abstract of the title was furnished, and upon an examination thereof McCarroll’s attorney raised the objection to the title that the grand lodge had no right to sell.

Thereupon the officers and trustees of the Grand Lodge brought this suit in the chancery court to enforce the contract of sale. The jurisdiction of the chcancery court is predicated upon the ground, first, that this is a suit for specific performance of a contract, which is, of course, an established ground of equity jurisdiction. The court was asked also to assume jurisdiction upon the ground that it involved the construction of a will and sought to determine the scope of a trust, which is also a well recognized ground of equity jurisdiction. Morris v. Boyd, 110 Ark. 468.

The suit made the widow of one Odd Fellow and the orphan of another parties defendant as representatives of two of the classes of the beneficiaries under the will. These parties and all others filed answers, putting in issue all of the allegations of the complaint. Before the final submission of the cause one J. A. McCarroll, a member of the Grand Lodge of Odd Fellows, filed an intervention, and thereafter the lawsuit lost its characteristics as a friendly suit to try out the title.

J. A. McCarroll alleged in Ms intervention that the grand lodge, as trustee under the will, had been guilty of neglect of duty; that it had made no effort to carry out the trust, and had used funds derived from the Shirey estate for purposes not authorized by the will; that a contract had been made to sell the lands at a grossly inadequate price. He further alleged that it was practicable and feasible to erect the orphanage on the Robbins farm, and he prayed that the trustees be required to do so.

These issues were all inquired into and numerous witnesses testified, and we have a voluminous record before us, and it would protract this opinion to an undue length to attempt to review the testimony.

The decree contains a recital of the findings of fact made by the court, and we think the testimony supports these findings. We summarize them as follows: Shirey devised all of his estate to the Grand Lodge of the Independent Order of Odd Fellows as trustee for the purpose of erecting a sanitarium at Hot Springs and an orphans’ home for indigent orphans and widows on lands known as the Robbins farm. Through no fault of the grand lodge, the larger part of this estate was lost to the grand lodge. On account of the small amount of property realized from said estate, the grand lodge, as trustee, is unable to carry out the provisions of the will of the testator by erecting either the sanitarium or the orphanage. The court found that before the death of the said Shirey the grand lodge had erected and was maintaining at Batesville, Arkansas, a home for widows and orphans of the same class and character as that mentioned in the will, and that it is still maintaining the same and intends to do so. That it is a charitable institution exclusively devoted to charity. That after the death of the said Shirey, in a certain proceeding and decree, as well ás by a contract previously made with the .collateral heirs the grand lodge was awarded the lands involved in this litigation, and all interest of the heirs and the widow was divested.

Tlie court further found that at the annual meeting of the Grand Lodge a resolution was passed authorizing the sale of the lands, as the same were paying no dividends, with the intention and purpose of using the proceeds of the same for the support of the widows’ and orphans ’ home at ¡Batesville, and that it is the intention to use the proceeds of the sale to Z. M. McCarroll for that purpose.

The court found that the trustees of the grand lodge were duly authorized and empowered to sell the lands, and that, pursuant to this authorization, they had entered into a contract with Z. M. McCarroll for the sale of said lands for the sum of $52,000, and that the lands which are there described barely yield enough income to pay for the repairs and taxes and other expenses necessary to keep them up, and that they are depreciating in value, and will likely be lost to the grand lodge unless sold.

The court specifically found that, on account of the failure of the grand lodge to receive the title to all of the property devised to it, it is impossible to carry out the terms of the will as to the erection of a home on the Robbins farm, or a sanitarium at Hot Springs. But the court found that, if said property is used by the grand lodge for the support of the orphanage at Batesville, it will be used for a similar bounty and kindred charity to that designated in the will, and will be applied as near as possible to the objects and purposes intended by the said Shirey, and the court found this should be done.

The court decreed that the property could be sold and a good and fee simple title made thereto, and directed the defendant, Z. M. McCarroll, to comply with his contract by making the payments therein required. To this ruling and decree Z. M. McCarroll, the widow and the orphan who had been made parties as representatives of the classes to which they belonged, and J. A. McCarroll, the intervener, excepted, and have all appealed.

These findings of fact, in which we concur, dispose of the questions of fact raised in the pleadings; but the examining attorney insists that, notwithstanding these findings of fact, the court was without authority to direct the completion of the contract of sale when it was alleged and proved that the grand lodge did not intend, with the proceeds of the sale of the lands, to erect either the sanitarium at Hot Springs or the orphanage on the Robbins farm, but intended to consume the estate by expending the proceeds thereof on the orphanage at Bates-ville.

We have here a case where an estate, which the testator probably thought was worth $300,000, proves to be worth less than a fifth of that sum so far as its use for the purpose intended is concerned. It has become impossible to erect either the sanitarium or the orphanage. What becomes of the property devised to the grand lodge? And can the grand lodge sell the lands as it proposes to do? As has been shown, the compromise decree vested in the collateral heirs 20 per cent, of the estate as their share thereof, and in the widow and her son 40 per cent, thereof as their share, and the grand lodge took the remaining 40 per cent., and the necessary effect of this decree was to vest this 40 per cent, in the grand lodge free from any claim of the widow or the collateral heirs.

It is quite obvious that this compromise decree gave to both the widow and the collateral heirs an interest which the testator did not intend them to have. It is equally obvious that the testator intended to devote his entire estate to charity; but for the reasons stated this cannot be done. Shall the devise to charity wholly fail because the intention of the testator cannot be wholly performed? Or shall the manifest purpose of the testator to devote his estate to charity be executed “cy pres,” or as nearly as may be?

In the case of Matter of MacDowell (Westchester Trust Co. v. Gibson), 217 N. Y. 454, 112 N. E. 177, a testatrix had attempted to create a charitable trust which could not be carried out because the fund provided was not sufficient for that purpose. Seabury, J., for the Court of Appeals of New York, said: “The money that she directed be devoted to this purpose may be inadequate to carry out her purpose in the precise manner contemplated, but that fact of itself furnishes no reason why the class that she intended to aid should not receive the benefit of the aid which it was her intention to give. (Jackson v. Phillips, 14 Allen [Mass.] 539, 586; Atty. Gen. v. Ironmongers’ Co., 2 Beav. [Eng.] 313; Norris v. Loomis, 215 Mass. 344, 102 N. E. 419).

“No general rule can be enunciated as to the manner in which the cy pres doctrine will be applied. Each case must necessarily depend upon its own peculiar circumstances. Inadequacy of the trust fund to accomplish the purpose of the testator in the manner originally intended may, however, justify the scheme of the charity being changed. If the Supreme Court cannot cause this trust to be carried out in the precise manner contemplated by the testatrix it will apply the trust fund to other charities as nearly as possible like that specifically mentioned in the will. (Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286, 300, 105 N. E. 543).”

The case is annotated in Ann. Cas. 1917-E, 853, and at page 870 the note deals with the question of the inadequacy of the gift to maintain the charity attempted to be created. The case note is that “the inadequacy of a charitable trust fund for the establishment of a home for persons of a particular class does not in any way affect the validity of the gift,” and among the cases cited is the case of Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256, which case is itself found annotated in 122 Am. St. Rep. 169, where it was said: “In this State the statute of 43 Elizabeth, chapter 4, is a part of the common law (Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 Ill. 223), and the efforts of the courts of this State have always been to sustain a gift for charity if it can be done, and while the courts of this State do not assume to exexcise the prerogative powers which the courts of England have at times exercised, if a trust for charity is sufficiently certain to 'enable the courts, in the exercise of their ordinary chancery powers, to carry out the donor’s charitable intent, they will not allow the trust to fail (Welch v. Caldwell, 226 Ill. 488, 80 N. E. 1014); and the fact that the fund will be depleted one-half by reason of the fact that the widow has taken under the law and not under the will, will not defeat the trust (Gilman v. Hamilton, 16 Ill. 225), as other means may be donated toward the erection and maintenance of said orphans’ home and the testator’s object thereby fully accomplished.”

This statute of' 43 Elizabeth, chapter 4, was entitled: “An act to redress the misemployment of lands, goods and stocks of money heretofore given to certain charitable uses.”

Judge IT. M. Rose, as special judge in the case of Fordyce v. Woman’s Christian National Library Association, 79 Ark. 550, said: “The English statute of 43 Eliz., c. 4, is in force in this State. In it schools and free schools are mentioned, but not libraries. The statute was, however, only remedial and ancillary, and did not affect in any wise the jurisdiction of the chancery court as it previously existed. Ould v. Washington Hospital, 95 U. S. 303; Biscoe v. Thweatt, 74 Ark. 545.”

This English statute mentions the education and preferment of orphans and gifts for or towards their relief.

In the opinion by Judge Rose, supra, it was also said: “Devises for charitable purposes that are void at law are often sustained in chancery. 2 Story, Eq., sec. 1170. Where a literal execution of a charitable devise becomes inexpedient or impracticable, the court will execute it as nearly as it can according to the original purpose. Id., sec. 1169. The court will supply all defects of conveyances where t'he donor has capacity to convey, unless the mode of donation contravenes some statutory provision. Id., sec. 1171.”

There are a vast number of cases which discuss and apply what is commonly called the cy pres doctrine, and the annotated cases herein cited collect many of them. See sec. 113 of the article on Charities in 5 R. C. L. at p. 370; Tincher v. Arnold, 147 Fed. 665. See also, note c, par. IV, to the case of Hadley v. Forsee, 14 L. R. A. (N. S.) 49; sec. 74 et seq. of article on Charities in 11 C. J. 358; Grand Prairie Seminary v. Morgan, 49 N. E. (Ill.) 516; Grimke v. Malone, 91 N. E. 899; 2 Perry on Trusts (6th Ed.) secs. 723, 725; 3 Story’s Equity Jurisprudence, (14th Ed.) secs. 1557, 1571; Mackenzie v. Trustees of Presbytery of Jersey City, 3 L. R. A. (N. S.) 227; Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286, 105 N. E. 543.

A case in which the facts are very similar to those of the instant case is that of Weeks v. Hobson, 150 Mass. 377. In that case the donor had devised a certain lot of land “to be used as a site for a hospital,” and the reasoning of that case is so applicable to the facts of this; that we quote the following paragraph: “The original bill alleges that the land devised is not a suitable site for a hospital building. We can think of causes which may have come into existence since the will was made, or even since the death of the testator, which, combined with other causes inherent in the land, make it now an unsuitable place for a hospital, even though the testator might well have thought it suitable when he made his will. We must treat this allegation, and the decree founded on the evidence in support of it, as establishing the proposition that it is now impracticable to carry out the purpose of the testator in the precise mode which he contemplated. Since the trustees cannot properly build a hospital on the land devised, the question presented to the court is whether the charity must fail, and the property revert to the residuary legatees, or whether the court can apply the doctrine of cy pres and change the mode of disposing of the property so as to -carry out the general purpose and intent of the testatqr. That depend^ upon what we find to have been his intent in making the devise. It is to be noticed, first, that he makes a single gift of land and money, to be used for the establishment and maintenance of a hospital. The land is to be used as a site, and the money is to be expended in the erection of buildings and in defraying the current expenses of the hospital. His obvious purpose was to provide, and, to the extent of his gift, to maintain a hospital for the sick and maimed of the city of his residence. We cannot believe that he intended to make his gift dependent on the occupation of a particular lot as a site for the buildings, so that if it became impracticable or impossible to use that lot he would utterly fail to accomplish his purpose. His language indicates that he had in mind a charitable scheme of great importance to the people of the neighborhood, which involved the occupation of a lot by hospital buildings, but to which the location of the buildings in the place named, instead of some other proper place, was of no consequence.”

We have concluded therefore that the chancery court had jurisdiction to make the order directing the specific performance of the contract of sale, and that, pursuant to its right to supervise and control the administration of trusts, and to prevent the failure of the testator’s purpose to devote his estate to charity, a proper order was made, and the decree is therefore affirmed.

McCulloch, C. J.,

(dissenting). All of the authority which the Grand Lodge, as trustee, possesses in regard to the property in controversy, and any interest which it has in the property is derived solely from the last will and testament of Shirey. Under the compromise with the widow and heirs the Grand Lodge was shorn of a great deal of its interest in a considerable portion of the property, but it derived no interest or benefit other than a settlement of the lawsuit. It received, under the terms of the agreement, no new interest in the land devised in trust by the will.

In the Shirey will there are two purposes clearly expressed; one to create a trust in the four hundred acres of land known as the Bobbins farm, which was “to be used as a location and site for an orphans’ home to be established and maintained thereof under the perpetual control of said grand lodge”; and the other te create a trust in the remainder of the property of the testator for the purpose of establishing a sanitarium to be located and maintained at the city of Hot Springs for the purpose of the treatment of certain diseases by certain methods and without dhe use of drugs.

There are now 2,100 acres of land held by the grand lodge under the will, including the four hundred acres constituting the Bobbins farm. The declared purpose of the trustee now is to sell all of the property and devote the. proceeds to the maintenance of an orphans’ home at the city of Batesville, which prior to the death of Shirey had been established by-the Grand Lodge. The right to dispose of the property for the purpose mentioned is the point at issue in the present litigation, and the majority of the court now sustain the asserted authority of the Grand Lodge under the principles known as the cy pres. doctrine — the doctrine of nearness or approximation.

The doctrine of cy pres originated in the common law of England as a part of the royal prerogative which the chancellor exercised by the sign-manual, and for ob-. vious reasons this phase of the ancient doctrine has never obtained in America. The other, or judicial, phase of the doctrine, which was merely one of construction by courts .of equity in order to effectuate the real intention of a testator, has always been admitted and freely exercised by the courts of this country. There are- many decisions which give an interesting account of the origin, progress and limitations of this doctrine, notably the case of Jackson v. Phillips, 96 Mass. 539, which is cited in the majority opinion.

“This power of disposal by the sign-manual of the crown in direct opposition to the declared intention of the testator,” said the Massachusetts court in the case cited above, “whether it is to be deemed to have belonged to the king as head of the church as well as of the State, * * * or to have been derived from the power exercised by the Roman Emperor, * * is clearly a prerogative and not a judicial power and could not be exercised by this court; and it is difficult to see how it could be held to exist at all in a republic, in which charitable bequests have never been forfeited to the use or submitted to the disposition of the government, because superstitious or illegal.”-

Another interesting discussion of the subject may be found in the opinion of the New Jersey court in Mackenzie v. Trustees, 67 N. J. Eq. 652, 3 L. R. A. (N. S.) 227.

The substance of the doctrine, as récognized by the American courts, is that the dominant purpose of the testator in the creation of a charitable trust will not be permitted by a court of equity to fail merely because of impossibility of its execution in the manner literally prescribed by the testator, and that other methods will be adopted in order to effectuate the general and dominant purpose of the testator.

In Jackson v. Phillips, supra, the Massachusetts court stated the scope of the enforcement of this doctrine in the following language:

“It is accordingly well settled by decisions of the highest authority, that when a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is expressed to limit it to a particular institution or mode of application, and afterwards, either by change of circumstances the scheme of the testator become impracticable, or by change of law become illegal, the fund, having once vested in the charity, does not go to the heirs at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of its jurisdiction in equity, as near the. testator’s particular directions as possible, to carry out bis general charitable intent.”

The same court, in a later case (Teele v. Bishop of Derry, 168 Mass. 341), stated the doctrine and its limitations as follows:

“If it appears from the will that the intention of the testatrix was that her property should be applied to a charitable purpose whose general nature is described so that a general charitable intent can be inferred, then if, by a change of circumstances or in the law, it becomes impracticable to administer the trust in the precise manner provided by the testatrix, the doctrine of cy pres will be applied in order that the general charitable intent which the court regards as the-dominant one may not be altogether defeated. * * * But if the charitable purpose is limited to a particular object or to a particular institution, and there is no general charitable intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, the doctrine of cy pres does not apply, and, in the absence of any limitation over or other provision, the legacy lapses.”

In a decision of the Kentucky Court of Appeals, Chief Justice Robertson, speaking for the court, said:

“We as satisfied that the cy pres doctrine of England is not, and should not be, a judicial doctrine, except in one kind of case; and that is, where there is an available charity to an identified or ascertainable object, and a, particular mode, inadequate, illegal, or inappropriate, or which happens to fail, has been prescribed. In such a case a court of equity may substitute or sanction any other mode that may be lawful and suitable, and will effectuate the declared intention of the donor, and not arbitrarily and in the dark, presuming on his motives or wishes, declare an object for him. A court may act judicially as long as it effectuates the lawful intention of the donor. But it does not act judicially when it applies his bounty to a specific object or charity, selected by itself merely because he had dedicated it to charity generally, or to a specified purpose which cannot be effectuated. ” Moore v. Moore, 4 Dana (Ky.) 354.

In the New Jersey case cited above (Mackenzie v. Trustees), the court said this:

“In all of these instances it is to be observed that the underlying principle is this: Where the testator or donor had two objects in view, one primary or general, and the other secondary or particular, and these are, literally speaking, incompatible, the particular object must be sacrificed in order that effect may be given to the general object according to law and ‘as near as may be’ to the testator’s or donor’s intention.”

According to the test prescribed in these decisions of courts of the highest respectability, and upon which the majority seem to rely in reaching their conclusion, the cy pres doctrine is inapplicable to the facts of the present case. There cannot be discovered in the langauge of the testator or a general purpose other than in the manner expressed in the will, to create a charity in the way of caring for the widows and orphans of members of the fraternity. The only declared purpose is the specific one of establishing a home upon a particular tract of land. There is no general provision for the establishment of an orphans’ home, nor is there any provision at all for the maintenance of the home. The language of the devise is susceptible only to the interpretation that the testator had in mind solely the location, of an orphans ’ home upon the site in question, to be operated and' controlled by the fraternity mentioned, as trustee; therefore, there was no general charitable intent to which the specific intent with regard to methods or means for its performance must yield. It is not a case like the one relied on by the majority (Weeks v. Hobson, 150 Mass. 377), where not only the location of the home was provided, but the means for its operation were also provided, and. the court held that the trust did not fail merely because the selected location was-unsuitable. In the present case the testator merely provided for the location, and his design ended with that provision. The sale of the property and the devotion of the proceeds to another purpose, even though it be a .charity of the same general nature, was not within the design of the testator, and therefore it is not within the power of the court to set at naught his design and use the funds for some other purpose of the. same general nature. The facts of the case, I think, fall squarely within the limitation placed upon the doctrine by the Massachusetts court in Teele v. Bishop of Derry, supra.

What I have said has reference solely to the application of this principle to the four-hundred acre tract known as the Robbins farm. But, conceding that the doctrine applies as to that part of the property so as to permit the sale for use in the maintenance of an orphans’ home, it is entirely beyond me to discover any proper application of the doctrine which would permit the trustee to dispose of the property which was specifically devised by the testator for the purpose of establishing a sanitarium at Hot Springs and devote the proceeds to an orphans’ home in Batesville. It seems to me that the decision, to that extent, goes the full limit of the ancient doctrine of cy pres which the English chancellor long ago exercised under the royal prerogative. No American court has ever gone that far, and I am therefore unable to join the judges in the decision which holds that the Grand Lodge has the authority to use this property or to dispose of it for any purpose other than that prescribed in the Shirey will.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Watson v. Banks.
    Opinion delivered July 3, 1922.
    1. Insane persons — evidence of commitment. — In an action on account for goods sold, defended on ground of buyer’s insanity, where part of the goods were bought prior to his commitment to the State Hospital, and the rest after his discharge therefrom,, defendant cannot complain because, after admitting proof of a record of the county court committing defendant to the State Hospital as being insane, the court held that such record was admitted merely as a circumstance tending to show that defendant was insane.
    2. Sales — burden of proving insanity — instruction.—In an action by a seller of goods against a buyer to recover on an account, defended on the ground that the buyer was incapable of making a valid contract because of insanity, a charge that the burden rested on the buyer to establish the fact that at the time he entered into the contract he was insane was correct.
    3. Insane persons — issuance op letters of guardianship by clerk. —Under Const., art. 7, § 34, conferring upon probate courts exclusive jurisdiction in matters relating to persons of unsound mind, and their estates, and the statutes providing for appointment of guardians of estates of insane persons by probate courts after an adjudication of insanity, issuance of letters of guardianship by the county clerk without an order of the probate court was unauthorized and void, and raised no presumption concerning the mental incapacity to contract of the person concerning whom the letters were issued.
    Appeal from Desha Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      Poe, Gannaway & Poe, for appellant.
    Appellant was legally declared an insane person under §§ 9403-9405, C. & M. Digest. Such adjudication is not required "by statute to be recorded at all, and the fact that it was recorded in the county court records does not invalidate same.
    After lawful adjudication, appellant is presumed to remain insane until his disability is removed by competent authority. One dealing with a supposed insane person must show that he had mental capacity to enter, into the contract. 136 Ark. 72; 139 Ark. 223; 14 E. C. L. 622.

      It was the province of the jury to find whether or not appellant was insane, and the court erred in taking away this question from them by the instructions given.

      Danaher & Danaher, and Moore & Hester, for appellee.
    The adjudication of insanity was made by the county court, and not the judge thereof, and was done under authority of secs. 5826-5629, C. & M. Digest. The probate court made no finding whatever. The sections of the Digest relied on by appellant had no reference to the regulation of the business affairs of appellant, but refer only to the manner of gaining admission to the State hospital.
    A valid adjudication of insanity is prima facie evidence, but the burden of proof is upon the one asserting insanity. 304 Mass. 173; 22 C. J. 79; 119 Ark. 179. Appellant failed to request the court to give an instruction to the effect that the adjudication of the county court was prima facie evidence of continuing insanity at the time the contract was made, and he cannot now complain.
   McCulloch, C. J.

Appellee is a merchant doing business in Desha County, and he instituted this action in the circuit court of that county against appellant to recover on account for merchandise sold and delivered to one Harvill, upon written orders given by appellant.

In the answer filed in the case, appellant denied the allegations of the complaint with respect to the giving of the orders for the sale of merchandise, and the answer also contained a plea that appellant was insane at the time of the alleged sale of the merchandise, and on that account incapable of executing a contract.

There was a trial of the .issues before a jury, which resulted in a verdict in favor of appellee.

It is conceded that the evidence was sufficient to support the finding of the jury in favor of appellee upon the issues whether or not appellant gave the written orders and whether or not the account of appellee was correct. It is also conceded that these issues were properly submitted to the jury, and there is no assignment of error in regard to that feature of the case.

'The only assignments of error relate to rulings of. the court with respect to the issue as to appellant’s mental capacity at the time the contract is alleged to have been entered into.

The transactions occurred during the year 1920. Appellant was residing in Desha County, and was the owner of a farm. Harvill was his tenant. Appellant gave orders to appellee to make advances to Harvill.

The testimony tends to show that during the month of February, 1920, appellant suffered a nervous breakdown, and on March 21, 1920, he was taken to the State Hospital for Nervous Diseases, at Little Rock. He remained in that institution until April 1,1920, when he was discharged, and returned home.

One of the orders given by appellant for a small amount was given prior to the time he went to the hospital, and all of the others were given after his return.

There is a conflict in the testimony as to the mental condition of appellant before and after he went to the hospital. There was sufficient evidence to support a verdict either way on that issue.

Appellant offered to introduce in evidence a certified copy of a written order, or judgment, signed by the county and probate judge of the county and entered upon the records of the county court, on March 21, 1920, declaring that appellant was insane and committing him to the State Hospital. The county clerk was introduced as a witness by appellant, and testified that the probate court was not in session on that date and had not been in session since March 10, 1920, but that the county court was in session, and that he placed this order on the records of the county court pursuant to the custom in that regard which had theretofore prevailed in that county. The court admitted the record in evidence as a circumstance tending to show that appellant was insane, and instructed the jury to that effect. The court also charged the jury that the burden of proof rested upon appellant to establish the fact that at the time he entered into the alleged contract with appellee he was insane, or lacking in sufficient mental capacity to make a contract. The court refused to give an instruction, requested by appellant, telling the jury that the burden was upon appellee to show by a preponderance of the testimony that appellant was mentally capable of making the contract and binding himself at the time he gave the alleged orders.

The contention of counsel for appellant in their argument for a reversal of the case is that the order signed by the “county and probate judge” and entered upon the records of the county court was sufficient to constitute an adjudication of appellant’s insanity, irrespective of the question whether it was entered on the records of the proper court, and that it constituted prima facie evidence of appellant’s insanity, which placed the burden upon appellee to overcome. Counsel for appellee, on the other hand, contend that the order of commitment to the State Hospital was void for the reason that it was not made by the probate court while in session, and that exclusive jurisdiction is vested in the probate court by the Constitution. We deem it unnecessary to go into a discussion of this question for the reason that wé do not consider it material to a decision of this case.

None of the orders were given by appellant during the period from his commitment to the State Hospital to his discharge therefrom, and the order of commitment, either by the county and probate judge in vacation, if it be held that the statute confers authority upon him to make such an order; or the county court, if it be held that the court had jurisdiction to make the order, created any presumption of insanity after the discharge from the State Hospital.

The statute governing the admission of patients into the State Hospital for Nervous Diseases provides for an order of commitment by the county and probate judge, made after hearing testimony on the subject (Crawford & Moses’ Digest, sec. 9404), and the statute also provides that patients may be discharged from that institution by the superintendent. Crawford & Moses’ Digest, see. 9421. Therefore any presumption arising from the mere commitment was removed by the discharge in the manner prescribed by law.

No evidence was introduced with respect to the method of appellant’s discharge from the State Hospital or the circumstances thereof, but the proof is undisputed that he returned home on April 11, 1920, and was not in custody thereafter. Therefore the presumption must be indulged that, he was regularly discharged. There is therefore no presumption that he labored under insanity after the time of his discharge or before the date of his admission, regardless of the question of the validity or regularity of the commitment to the State Hospital. It is true that on the day that the county and probate judge made the order of commitment the clerk of the court issued letters of guardianship as for an insane person, but there was no order of the probate court authorizing the issuance of such letters, nor was there any approval of the same by the probate court.

The Constitution (art. VII, sec. 34) confers upon the court of probate exclusive jurisdiction in matters relating to persons of unsound mind and their estates, and the statutes of the State provide for the appointment of guardians of the persons and estates of insane persons by the probate court after an adjudication of insanity. Crawford & Moses’ Digest, sec. 5836 et seq.

The issuance of letters of guardianship by the county clerk was unauthorized and void, and raised no presumption concerning the mental incapacity of appellant.

We are of the opinion that the court was correct in limiting the purpose for which the record of insanity was introduced, and was also correct in the instruction telling the jury that the burden was npon appellant to establish his lack of mental capacity at the time the contract in question was entered into.

Judgment affirmed.


author: Hart, J. Humphreys, J.,

text:
    Crabtree v. Crabtree.
    Opinion delivered June 26, 1922.
    1. Divorce — single act of cruelty. — Where a single act of physical violence is relied on for divorce, under Crawford & Moses’ Dig., § 3500, as cruel and barbarous treatment, the evidence must show that the life of the complaining party was endangered.
    2. Divorce — cruelty.-—-Where a wife, without warning, attempted to cut her husband’s throat, and did cut a gash five inches long, and, on his running away from her, followed him and cut his hand severely while he was trying to hold a door between them, his injuries confining him to the hospital for 10 days, he was entitled to a divorce on the ground of cruelty.
    3. Divorce — discretion in granting absolute or limited divorce.— Under Crawford & Moses’ Dig., § 3500, providing that the chancery court may, for causes enumerated, set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, the discretion of the chancellor is not one to be exercised at his will, but is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case.
    4. Divorce — grant of limited divorce — abuse of discretion.— Where, in an action by a husband for divorce for cruelty, the chancellor found that plaintiff was without fault, and that defendant was guilty of cruelty, the chancellor abused his discretion in granting a limited divorce, instead of an absolute one.
    5. Divorce — custody of children. — In a husband’s action for divorce in which he established the ground of cruelty, it was not error to give to the mother the custody of two children, one nine and the other six years old, where they were being properly cared for by her.
    Appeal from Sebastian Chancery Court; J. V. Bow-land; Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    Marvin M. Crabtree brought this suit in the chancery court against Josephine Crabtree to obtain an absolute ■divorce from her. He also asked for the custody of their "two children.
    His ground for divorce was, that his wife had been guilty of such cruel and barbarous treatment as to endanger his life.
    According to the plaintiff’s testimony, his wife and himself lived with her mother, and he tried to persuade his wife to leave there and establish a home of their own. He did this because his wife’s mother meddled with their marital affairs and made their home life with her unpleasant. On the day in question in this case, his wife’s mother accused him of doing things that he had never thought of doing. He went back to his work at noon and returned home about six-thirty or seven p. m. After eating supper he started to go down town. His wife and the children came out of the house with him. He advised his wife that he was not going to live there in a continual row on account of her mother. His wife requested him to come back into the house, and he did so. Shortly after returning to the house, the telephone rang and one of his drivers asked him to come to the office. He told his wife that he had to go to town, and why. He told her she could go with him if she wished. The car was something like- 200 feet from the house, and his wife had the switch-key. He was accustomed to turn the switch with a piece of metal on his key-ring. He walked in front of the car and set the crank to start the motor. At this time his wife stepped up behind him and laid her left hand on his left shoulder. She-’asked him if he would come back, and he replied that he was not making any promises. At this instant his wife cut his throat with a rázor. He jerked loose from her and jumped over a big gate. Then, seeing a light in the rear of McCann’s residence, about 100 feet away, he hastened there for help, and his wife followed him. He saw her coming, and she showed that she had not accomplished her purpose: He had to act quickly. He grabbed a swinging door and tried to keep her from getting to him-by holding the swinging door with his hand. His fingers stuck out on the side of the door next to his wife, and^when she could not push the door open she slashed his hands, cutting four fingers on one and one finger on his other hand, practically severing the leaders in all of them. The cut in his throat was five inches long. He then turned loose the door and ran through the house into the kitchen, where Mc: Cann was sitting, and called his attention to what had just happened to him. His wife entered, the room, and •McCann caught her from behind and held her by the arms. His wife made two desperate attempts to assault him again, but was prevented by McCann. He grew very weak from loss of blood. Finally he sat down on the porch in a swing. His wife begged McCann to let her get to him. She got a little closer to him and struck at him again, hitting him across the face, but by some means the razor turned and only peeled the skin. He then started to run. His wife jerked loose from McCann and slashed him in the back, cutting three holes in his coat.' She caught him, and all three of them fell on the floor. Mr. Shaffer came up at this time, and the plaintiff was released. Finally he started off of the porch and his wife ran at him, striking at him with the razor. Shaffer caught her. The plaintiff then got into his car and requested a man to drive him to the hospital. He was in the hospital ten days. The day after he left the hospital his wife called him over the telephone and said, “Well, good morning, old scout, how are you?”
    Mrs. Crabtree was a witness for herself. .According to her testimony she did most of the ironing and washing for the family, made most of the children’s clothes, did the household work, and mowed the yard. When she had spare time she worked in her husband’s place of business.
    She claimed that her husband was of a sullen disposition and mistreated her in various ways, which she. stated. She admitted cutting him on the occasion in question. When her husband was called to his office over the telephone that night, she asked to go with him, and he replied that she could. She went to the sideboard to get the switch-key to give to her husband. She had on an apron, and dropped the switch-key in one of its pockets. When she got to the car she put her hands in her pocket to get the key, and felt the razor. She had been using it that day in ripping some of her children’s clothes. She does not recall anything from the time she felt- the razor in her pocket until some time after the assault on her husband was made. She supposed she attempted to cut her husband’s throat with the razor, but had no recollection of it.
    The plaintiff denied that the defendant was compelled to do any ironing and washing, and sthted that the washing had been hired to be done for five years. He admitted that his wife sometimes mowed the yard, but not at his request. He said that he did not want to live with her people, and constantly tried to get his wife to move to another house, but she refused to do so. He denied categorically that he had ever mistreated his wife in any way.
    By agreement of counsel, certain evidence which had been used in the trial in the circuit court on the charge against his wife for assault with the intent to kill her husband was made a part of the record in this -case.
    J. A. McCann was one of the witnesses. He told about the wife following her husband to his house with a razor in her hand. He held her about twenty minutes while she struggled to get away. She appeared very nervous and struggled to get free from him. She had a wild look in her eyes and stared into vacancy. In his. opinion she was temporarily insane.-
    Several witnesses who saw her later in the evening and on the next day testified that .she did not appear normal and was very nervous and had a peculiar look. They said that she had always been -a peaceable woman before that time, and they regarded her as temporarily insane when she attacked her husband with the razor and cut his throat.
    On the day of the final hearing, the defendant testified that she wanted the plaintiff to become reconciled to her and that she was willing to do anything to bring about a reconciliation. The plaintiff was questioned by the court and said that he would not live with the defendant again; that her assault upon him was without provocation, and that he would not risk his life by living with her again.
    The chancellor entered a decree of divorce from bed and board in favor of the plaintiff against the defendant, but refused to grant him an absolute divorce. Their two children were awarded to the custody of the defendant, and the parties settled their property rights by agreement.
    The plaintiff has duly prosecuted an appeal to this court:

      Earl U. Hardin and Webb Covington, for appellant.
   Hart, J.

(after stating the facts). "What constitutes a cause of divorce is a matter of law. Whether such conduct exists is a matter of fact to be proved by competent evidence. One of the grounds for divorce under our statute is where either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other. Sec. 3500 of Crawford & Moses’ Digest.

While a single act of physical violence does not always justify a divorce under the statute, still it may be of such violence and danger to the life of the complaining party as to constitute a ground of divorce. Much depends upon the character of the violence and upon the presence or absence of provocation. A serious blow given intentionally and without any provocation will generally give rise to the inference that it is likely to be repeated and thus create a reasonable apprehension of danger for the future. The evidence must show that the life of the complaining party was endangered.

The question was discussed at length in the case of De Coito v. De Coito, 21 Hawaii, 339. It was there held that to constitute extreme cruelty there must be such violence or such a course of conduct as tends to endanger life, limb, or health, or create .a reasonable apprehension of such result, thus rendering continued cohabitation unsafe.

In Ford v. Ford, 104 Mass. 198, it was held thatwhere the evidence relied on is that of blows given on a single occasion, the violence must be of such a character as to endanger life, limb, or health, or as to create a reasonable apprehension of such danger.

In Beyer v. Beyer, 50 Wis. 254, it was held that a single assault and battery constitutes cruelty when committed under circumstances which indicate that the defendant has so little control over his passions that he will be likely to repeat personal violence on any provocation.

In May v. May, 62 Pa. 206, the court held that a single act of cruelty may be so severe and attended with such corresponding circumstances of atrocities as might, under a fair and liberal construction of the act, justify a divorce. But the court said that no single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce.

As we have said, our statute names as one of the causes for divorce that either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other.

While the chancellor did not grant an absolute divorce, still he found the facts for the plaintiff and granted him a divorce from bed and board on the ground that he had the power to grant either kind of divorce under the statute on the same testimony.

It cannot be said that the finding of facts made by the chancellor is against the weight of the evidence. The husband testified that his wife, without warning, attempted to cut his throat and did cut a gash in it five inches long. He ran away from her, and she followed him to a neighbor’s house, where she severely cut his hand while he was trying to keep away from her by holding a door between them. Even after the neighbor caught hold of her, she made repeated attempts to again cut her husband with the razor. She cut him in the back as he ran away from her. His injuries were so severe that he was confined for ten days in a hospital. He made no attempt whatever to strike his wife or in any way to injure her. He merely tried to run away from her.

The husband’s testimony is corroborated by that of the neighbor to whose house he ran to escape from his wife. Indeed, the wife admits the cutting, and only seeks to excuse it on the ground that her- reason was temporarily dethroned. She introduced witnesses who testified to that fact. However, they all described her appearance, and it is fairly inferable from the surrounding circumstances that she attacked her husband in a sudden fit of anger. In any event, her attack was so severe that she endangered his life, and it would seem that under the circumstances he is justified in not living' with her again. There was but little, if any, provocation for the assault.

. It is true that the wife testified in á general way about indignities suffered by her at' the hands of- her husband, but he specifically denied any ill treatment of her, and said that whatever marital' troubles they’had’ arose from the fact that she would not live away'from her mother in a home which he offered to prepare for her. It was her duty to live with her husband, and the circumstances attending the assault do not show any provocation for it.

Hence we cannot say that the finding of fact made by the chancellor in favor of the plaintiff is' against- the-’ preponderance-of the-evidence.- ' • \ ".....■

It appears from the record, however, that the chancellor refused to grant an absolute divorce to the plaintiff, not because he was not entitled to such a divorce under the facts, but because the chancellor believed that under the statute he had a right to grant an absolute or limited divorce upon the same testimony as he might deem proper.

In this respect we think the learned chancellor erred. It is true that § 3500 of Crawford & Moses’ Digest provides that the .chancery court shall have the power to dissolve and set aside a marriage contract, not only from bed and 'board, but from the bonds of matrimony, for the causes specifically enumerated in the statute. This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case.

The subject was thoroughly discussed by Judge Field, while a member of the Supreme Court of California, in the case of Conant v. Conant, 70 Am. Dec. 717. The statute construed in that case provides that the several district courts of the State shall have exclusive jurisdiction to grant a divorce from bed and board and from the bonds of matrimony. Wood’s Digest of the Laws of California, Art. 2635.

It will be noted that the statute, in so far as it relates to the discretion of the court in granting an absolute or limited divorce, is substantially the same as our statute. In- that part of the decision bearing on this question, the learned justice said:

“The statute says divorces may be granted from bed and board, or from the bonds of matrimony, but it was never intended that either should be indifferently granted, according as the prayer of the applicant asked for one or the other modes of relief. It was intended that a certain discretion should be exerteised by the courts, according to the special circumstances of each suit, acting upon the settled principles of the common law as applicable to this class of cases. And the true rule which should govern the court in the exercise of its discretion in this respect is this, that, to entitle to a decree for an absolute divorce from the bonds of matrimony, the applicant must be an innocent party — one who has faithfully discharged the obligations of the marriage relation, and seeks relief because really aggrieved or injured by the misconduct of the other; and, on the other hand, where there are circumstances showing a disregard of those obligations, though not carried to such a degree as to constitute itself a ground for divorce, the decree should be only for a divorce from bed and board. To obtain a release a vinculo matrimonii, the applicant must be without reproach, and, however guilty the defendant, if the applicant is chargeable either with similar guilt or an offense to which the law attaches similar consequences, the relief must be denied; and if the applicant, though not thus guilty, is still not blameless, the relief must be limited to a divorce a mensa et thoro.”

But it is claimed that this decision is contrary to the rule laid down in Crews v. Crews, 68 Ark. 158. In that case the chancellor granted the defendant on her cross-complaint a divorce from bed and board, and in discussing the question Chief Justice Btjnn said:

“The decree from bed and board and the divorce from the bonds of matrimony both rest upon the same ground, and.the same evidence will sustain either, with this qualification: Upon the evidence the chancellor has a sound discretion to grant the one kind of divorce or the other as he may deem best under the circumstances. The text writers generally, and many jurists, declaim against divorces from bed and board as useless, if not absolutely wrong in principle, but we cannot enter upon a discussion like that. The law authorizes divorces of that kind, and the implication, at least, is that circumstances must determine when they should be granted. The chancellor has exercised his discretion, and we cannot say that his discretion has been abused. His decree is therefore affirmed.”

A,majority of the court is of the opinion that the rule laid down in that case is in accordance with and not contrary to the principles announced by Justice Field. Every opinion must be construed with reference to the facts under discussion.

In Crews v. Crews, supra, the chancellor found that both parties were to a degree in fault, and that neither was entitled to an absolute divorce, but that a decree of divorce from bed and board should be rendered. It was contended by counsel that this finding was tantamount to a finding that both parties were equally at fault, and that therefore neither was entitled to a divorce. This court said that it did not think that the language of the chancellor had that meaning, but rather that, while neither was blameless, there was a difference in their guiltiness in degree.

The language quoted above shows that this constituted the basis of the affirmance of the decree of the chancery court. It will be noted that the court said that the decree from bed and board and an absolute divorce rests upon the same ground, and that the same evidence will sustain either, with a qualification.

The qualification was that the chancellor has a sound discretion to grant the one 'kind of divorce or the other, as he may deem best under the circumstances. The circumstances under which the chancellor exercised his discretion in that case were, as we have already seen, that both parties were to a degree in fault, and on that account neither was entitled to an absolute divorce. The defendant was granted divorce from bed and board because the chancellor deemed that she was the less guilty of the two parties. It will be seen from the language quoted that this court will reverse the chancellor where he abuses his discretion in the matter. If the chancellor had the right to grant an absolute or limited divorce indifferently, it is plain that he eonld never abuse his discretion.

On the other hand, if his discretion is to be exercised according to the principles expressed in Conant v. Conant, supra, and in accordance with the acts of the chancellor in Crews v. Crews, supra, it is manifestly an abuse of discretion for the chancellor to grant a divorce from bed and board where the complaining party is without fault and has established his or her grounds for divorce.

Therefore, the chancellor, having found the facts in favor of the plaintiff, abused his discretion in refusing to grant him an absolute divorce, and in granting him a divorce from bed and board.

The property rights of the parties arising from the marital relations were settled by agreement, and that phase of the case is not before us.

Complaint is also made by the plaintiff that the court erred in not granting him the custody of their two children. The court granted the custody of the children to the mother with the right of visitation to the father. One of the children was a boy, age six, and the other a girl nine years old. While the plaintiff asked for the custody of the children, he does not assign any reason why he should have them, and the court can perceive none. -It does not follow that, because the wife tried to kill him in a fit of anger, she did not have any parental affection for the children. Oh the contrary, the record discloses that she loved them and was properly caring for them. The court looks mainly to the comfort and happiness of the children and gives them to the keeping of that parent who can best look after them.

On account of their tender years, it cannot be said that the chancellor erred in giving them to the custody of the mother, with the right of visitation to the father at all proper and reasonable times. Therefore, the decree in this respect will be affirmed.

It follows from the views expressed above that the chancellor erred in not granting an absolute divorce to the,plaintiff, and for that error the decree will be reversed and the cáuse remanded, with directions to grant him an absolute divorce.

Humphreys, J.,

(dissenting). After a careful reading of the facts in this case, my conclusion is that the attack made upon appellant by appellee was due to temporary insanity. They had lived together for a number of years in peace and harmony. No serious friction existed between them at the time the attack was made. The infliction of the injuries was an isolated act of cruelty, out of keeping with the current of their lives, and without excuse upon any other theory than momentary insanity. The undisputed evidence tended to show that appellee was beside herself, when she so unexpectedly and viciously attacked her husband. She herself testified that she knew nothing of the occurrence until it was all over. The evidence is wanting to show intentional cruelty, so a decree of divorce should have been refused.

I also think the majority have incorrectly construed the statute and, in effect, overruled the case of Crews v. Crews, 68 Ark. 158. In that ease the divorce statutes were interpreted as conferring a sound discretion upon the chancellor to determine whether a divorce absolute, or from her bed and board only, should be granted in any particular case. The effect of the majority opinion in the instant case is to withdraw that power from the chancellor.

For the reasons given, I am impelled to dissent from the majority opinion..


author: Smith, J.

text:
    Missouri Pacific Railroad Company v. Coca Cola Bottling Company.
    Opinion delivered June 26, 1922.
    1. Railroads — negligence at crossing — questions for jury. — In an action for damages to a truck struck by a train at a crossing, where the testimony was conflicting as to whether the statutory signals were given and a lookout kept, the issue was for the jury.
    2. Railroads — discovered peril — ;Question for jury. — Whether a truck, struck by a train at a crossing, was in a perilous position when discovered, whether there was any negligence after such peril was discovered, and whether the driver was oblivious to the approach of the train when seen driving the truck, held for the jury.
    ■3. Negligence — what law governs. — The rights and liabilities of parties to an action for injuries at a railroad crossing in Oklahoma are governed by the law of that State.
    4. Railroads — discovered peril.. — Where a traveler at a crossing was guilty of contributory negligence in Oklahoma, the railroad company was not liable unless, after actually discovering his peril, it failed to use ordinary care to avert the injury, and an instruction which made the company’s liability to depend on whether the trainmen discovered, or ought by the exercise of ordinary care to have discovered, the peril of the traveler, was erroneous.
    5. Trial — instruction—general objection. — Error in giving an instruction on discovered peril in conformity to the laws of this State, instead of in conformity to the laws of Oklahoma where the injury occurred, was not waived by failure to make a specific objection on the ground that the laws of Oklahoma govern, where the place of injury and the application of the laws of that State were obvious and undisputed facts.
    Appeal from Sebastian Circuit Court, Port Smith District; John Brizzolara, Judge;
    reversed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    The court erred in submitting the issue of discovered peril to the jury. 48 Okla. 553; 33 Cyc. 1049; 24 Okla. 764; 198 Pac. 97; 24 Okla. 764; 108 Pac. 361. The court erred in modifying defendant’s requested instructions on the .question of contributory negligence. 62 Ark. 164; 62 Ark. 235; 48 Ark. 124; 94 Ark. 524; 77 Ark. 401.

      Daily & Woods, for appellee.
   Smith, J.

A truck belonging to appellee, the plaintiff below, was struck and completely demolished by a passenger train of the defendant at a public crossing. •The complaint charges the defendant was negligent in that the train was operating at a dangerous rate of speed; that the defendant failed to keep a proper lookout for travelers at the crossing; that the defendant failed to give the statutory signals; and failed.to stop the train after discovering the peril in which plaintiff ?s truck was placed.

The testimony is conflicting as to whether the statutory signals were given as the train approached the crossing; and this conflict in the testimony makes a question for the jury on that issue.

It is earnestly insisted that the undisputed evidence shows that a proper lookout was kept and does not show any negligence after the peril in which the truck was placed was discovered. We think, however, the testimony does present these issues.

The testimony shows that for a mile or more a much traveled road, known as the Albert Pike Highway, paralleled the railroad tracks, and that at the crossing where the collision occurred the road turns at a right angle across the railroad track. The train approached this crossing at a speed of about forty-five miles per hour, and there was a whistling post a quarter of a mile back from the crossing. The engineer testified that he could not see the truck from his side of the cab, but that, as the train came to within about three hundred feet of the crossing, he received warning from the fireman that they were about to strike a truck, and that he immediately blew three short blasts of the whistle and applied the emergency brake, but that the velocity and momentum of the train made it impossible for him to stop the train before striking the truck. The fireman testified that he observed tlie truck at the whistling-post, which, as has been stated; is a quarter of a mile from the crossing, and that he immediately communicated that fact to the engineer as soon as he saw that the driver of the truck was attempting to cross the track in front of the train. The testimony of the driver of the truck was that the train did not whistle until it was within a rail and a half of the crossing, and the testimony shows that the train only struck the front wheels of the truck.

Prom this testimony the jury might have found that the fireman did not warn the engineer promptly, or that •the engineer did not promptly heed the warning, and that, had he done so, he might have averted the collision either by blowing the whistle or stopping the train.

Exceptions were saved to the action of the court in submitting the question of discovered peril, upon the ground that the testimony, viewed in its light most favorable to the plaintiff, would not support a finding of liability on that issue. But we do not agree with counsel in this contention.- The jury might have found, under the testimony of the fireman, that the driver of the truck was in a perilous position when the fireman first observed him, and, the driver was oblivious of the approach of the train, and was in the act of driving upon the track when the fireman first saw him.

It appears that the issues stated were submitted to the jury over the objections of the defendant under instructions declaring the law of this State applicable thereto. But the collision occurred in the State of Oklahoma, and the law of that State, of course, governs as to the rights and liabilities of the parties.

The instructions asked by the defendant, dealing with the contributory negligence of the driver, left out of account the question of discovered peril; and defendant insists that issue should not have been submitted, for the reason that the testimony did not warrant it.. But, •as we have said, the jury might have found that the truck was in a perilous position when the fireman first observed it, and that there was negligence thereafter on the part of the fireman in warning the engineer or on the part of the engineer in not acting upon the warning. The question of discovered peril should therefore have been submitted to the jury; but it should have been done in instructions -conforming to the laws of the State of Oklahoma, where the collision occurred. The court, however, amended the instructions asked by defendant by adding the words, “unless -defendant’s servants discovered, or, by the exercise of ordinary care should have discovered, plaintiff’s driver in a perilous position in time to have avoided the injury.” This modification appears to have been made by the court on its own motion, without suggestion from the plaintiff.

It appears that the law of Oklahoma on the subject of discovered peril is the same as was the law of this State prior to the passage of act 284 of the acts of 1911 (Acts 1911, p. 275; sec. 8568, C. & M. Digest). Prior to this statute railroads were not’liable for injuries of this character where the traveler was guilty of negligence contributing .to the injury, unless, after discovering the peril of the traveler, the railroad might have averted the injury by the use of ordinary care. Barry v. K. C., Ft. S. & M. R. R. Co., 77 Ark. 401, and cases there cited. The act of 1911 imposed liability, not only in those instances where the peril was actually discovered, but in those instances also where, if a proper lookout had been kept, “the employee or employees in -charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by. the exercise of reasonable care after the discovery of such peril.” The amendment to the instructions made by the court set out above conformed to our amended lookout statute; but, in doing this, a liability was'imposed on the defendant which does not exist under the laws of the State of Oklahoma. St. L. I. M. & S. R. Co. v. Gibson, 48 Okla. 553; Clark v. St. L. S. F. R. Co., 24 Okla. 764; Thrasher v. St. L. & S. F. R. Co., 206 Pac. 212.

It is said defendant waived the error by failing to make a specific objection at the trial that the laws of Oklahoma, and not the laws of this State, governed. The modification of the instructions was objected to, although it does not appear that the specific objection was made that the laws of Oklahoma governed. But this was one of the obvious and undisputed facts in the case. The complaint alleged that the truck was being operated over and along a traveled public highway in Sequoyah County, Oklahoma, and all the witnesses testified that the accident occurred near Hansen, Oklahoma.

Appellee cites Fourche R. V. & I. T. Ry. Co. v. Tippett, 101 Ark. 376, as authority for insisting that the absence of a specific objection that the accident had occurred in Oklahoma, and that the laws of that State, therefore, applied, is a waiver of the error in the instructions. In that case, as in numerous others in which we have held that specific objections were required, we have said that the reason of the rule requiring specific objections in certain cases is to prevent the party making the objection from being allowed the benefit of a “masked battery” and to prevent the court from committing some inadvertence which obviously would have been remedied had attention been called thereto. But the modified instructions in this ease are not of that character. The place of the injury and the laws of the State where it occurred applicable thereto was one of the obvious undisputed facts in the trial, and we think the modification was sufficiently objected to.

For the error indicated the judgment is reversed, and the cause rmanded for a new trial.


text:
    Rachels v. Russell.
    Opinion delivered July 3, 1922.
    1. Attorney and client — lien for fees. — A lien for attorney’s fees on a judgment under Crawford & Moses’ Dig., § 6304, with proof that the fees were for services in various suits but without showing what fees were recoverable in the particular litigation, cannot prevail against- the .right of the judgment debtor, under § 6323, to set off against the judgment against him a judgment rendered for him against the client.
    2. Attorney and client — effect op judgment conditionally consented to. — Where consent to a judgment was given by the debtor on condition that a previous judgment in favor of the debtor against the creditors be set-off against the consent judgment, attorneys for the creditor who agreed to the condition cannot dispute the right to set-off under Crawford & Moses’ Dig., § 6323, nor assert a lien or assignment in conflict therewith.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. N. Rachels and II. A. Midyett, for appellants.
    Appellee had knowledge for many months that the cause of action had been assigned to appellants and it was not necessary that the assignment -be filed with the papers or noted of record. -Sec. 6303, C. & M. Digest; 74 Ark. 552; 98 Ark. 529. In cases of the nature prescribed by statute, an attorney recovering a judgment for his client, where his lien is duly preserved, has such an interest in the judgment that he cannot be deprived thereof on motion. 92 Ark. 388; 117 Ark. 504. His lien cannot be affected by any settlement between the parties before or after final judgment. 120 Ark. 389; 5 Civ. Pro. (N. Y.) 146, 98 N. Y. 660; 128 Ark. 471; 133 Ark. 294; 135 Ark. 22; 140 Ark. 180; 146 Ark. 174; 141 Ark. 369.

      B rundid ge & Neelly, for appellee.
    Appellant did not comply with sec. 6303, C. & M. Digest. Judgment was confessed by appellee with the understanding that same was to be credited on the prior judgment. The finding to the effect that Bussell had no actual notice of the alleged assignment is not against the weight of the evidence. 80 Ark. 185.
   McCulloch, C. J.

This is a proceeding instituted under the statute (Crawford & Moses’ Digest, § 6323) by appellee to set-off a judgment rendered in favor of appellee against one Blasingame for the recovery of the sum of $2,276, against another judgment rendered in favor of Blasingame against appellee in the sum of $250. Blasingame was brought into court by proper notice, and appellants appeared and intervened for the purpose of resisting the order setting-off the two judgments, one against the other, and as grounds for the intervention they alleged that the cause of action, upon which the judgment in favor of Blasingame against appellee was rendered, had been duly assigned to them by written instrument prior to the rendition of the judgment.

The cause was heard on oral testimony, and an order was entered in accordance with the petition of appellee setting-off the two judgments as prayed for.

According to the testimony adduced at the trial, appellants, who are attorneys at law, represented Blasingame in his litigation with appellee, which involved several different lawsuits, and that Blasingame assigned to them his cause of action against appellee, on which judgment was rendered, in payment of the amount he owed appellants as fees in the various suits. The assignment was in writing, but was not filed and noted on the record, as provided by statute, so as to become notice to third parties. Crawford & Moses’ Digest, sec. 6303.

Appellants urge now that they have a lien under sec. 6304, Crawford & Moses’ Digest, on the judgment recovered in favor of Blasingame for their fees as attorneys in the litigation, but the proof in the case does not show what amount of fees they were to recover in that particular litigation. The proof merely goes to the fact that Blasingame was indebted to them in the sum of $250 for fees in various suits between him and appellee. It is unnecessary therefore to discuss the question of the right of set-off in favor of appellee as against appellant’s statutory lien on the amount recovered in the judgment. Appellants’ claim in this case is nothing more nor less than that of ownership of the canse of action, and the judgment rendered thereon, by assignment under the terms of the statute.

The judgment in favor of Blasingame against appellee was rendered by consent, and the testimony adduced by appellee tended to show that this consent to the rendition of the judgment was given on the express condition that appellee’s judgment against/ Blasingame should be set-off against the judgment to be rendered. There is a conflict in the testimony on this point, as one of the appellants testified that he notified appellee before this judgment was rendered that they owned the cause of action and would assert their rights under the judgment. But it cannot be said that a preponderance of the testimony is against the finding in appellee’s favor. If, as shown by appellee, the judgment was rendered by consent upon condition that the two judgments were to be set-off and that this condition was agreed to by appellants themselves, they are in no attitude to dispute appellee’s right of set-off under the statute, or to assert a lien or assignment in conflict therewith.

The decree is therefore affirmed.


text:
    Morgan Construction Company v. Pitts.
    Opinion delivered July 3, 1922.
    1. Highways — repeal op statute creating district — allowance op claims. — Where, under authority of a special statute creating a road improvement district, the commissioners let a contract to plaintiffs, and the above statute was subsequently repealed, the ■ repealing act providing that all claims should be adjusted and paid if filed within 90 days after passage of the repealing statute, a claim presented after the time allowed was properly disallowed.
    2. Constitutional law — impairment op obligation op contract.— A statute abolishing a statutory road improvement district before performance of an executory contract for construction of the improvement and making provision for the discharge of all contract obligations, held not invalid as impairing the obligation of the contracts, though it constitutes a breach thereof.

      Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      G. E. Garner and Neill Bohlinger, for appellant.
    Eights once vested, privileges once granted or sanctioned by law, may be forfeited, but cannot be arbitrarily divested or withdrawn by future legislation. 3 Ark. 285. The contract was binding on each of the parties alike, and the obligations could not be impaired by subsequent legislation. 115 Ark. 437; 6 E. C. L. sec. 314; 3 Elliott on Contracts, § 2096. The reserved right of alteration and repeal does not authorize the Legislature to impair or destroy contracts of third persons with the corporation. 3 Elliott on Contracts, § 2733. A statute which deprives a party of all remedies as to existing contracts when the statute was enacted is void. 3 Elliott on Contracts, § 2732. A city charter cannot be so amended as to impair the obligation of a contract previously made by the city without violating the contract clause of the Constitution. 3 Elliott on Contracts, § 2724.

      Tomplúns, McRae & Tomplúns, for appellee.
    The intervention does not show that appellant has a valid contract. 106 Ark. 39; 119 Ark. 188; 232 S. W. 434. The Legislature had the right to repeal the act creating the drainage district, but could not deprive appellant of an opportunity of presenting its claim. 115 Ark. 437. The right to a particular remedy is not a vested right, and the State has control over the remedies it offers to suits in the courts. Cooley’s Const. Lim. 361. One must pursue the remedy provided 'by law for the redress of his grievance. 113 Ark. 371; 104 IT. S. 675. The Legislature has the power to pass or shorten the statute of limitations. 159 N. Y. 188; 45 L. E. A. 118; 3 Elliott on Contracts, 2732; 27 Ark. 425.
   McCulloch, C. J.

The General Assembly of 1919, by special statute, created a road improvement district in Garland County designated as Southwest Arkansas Eoad Improvement District No. 1. Authority was conferred by the statute upon the commissioners of the district to construct the improvement described, and for that purpose to employ engineers and let a contract for the construction.

Pursuant to the terms of the statute, appellants, a copartnership under the style of Morgan Construction Company, entered into a contract with the commissioners of the district for the construction of the improvement. But the General Assembly of 1921 (Special Acts 1921, p. 334) repealed the former statute creating the district, and provided for winding up the affairs of the district by a receivership in the chancery court of Garland County.

The statute provides that all claims against the district shall, be adjusted upon the same being filed within ninety, days after the passage of the statute, and that when the indebtedness of the district is thus adjusted, assessments shall be levied upon the real property in the district to raise the funds to pay the indebtedness.

Appellants presented a claim after the expiration of ninety days from the passage of the statute, and the court refused to allow the same — sustained a demurrer and dismissed the plea.

The statute required, as before stated, the filing of all claims within ninety days. This is a reasonable provision, and the court was correct in refusing to allow a claim not filed within the time specified. The statute does not authorize the allowance of any claim, except those filed within .the time allowed.

It is contended that the statute abolishing the district constitutes an impairment of the obligation of the contract between appellant and the district, and for that reason is void.

The abolishment of the district before the performance of an executory contract for the construction of an improvement was, in effect, a breach of the contract — . a refusal, in other words, to perform the contract — but' it did not impair the obligation, for the reason that ample and reasonable provision was made for the discharge of the obligations of all contracts by the payment thereof" when presented in accordance with the terms of the statute.

There is a distinction between the breach of a contract and the impairment of the obligation of a contract, and where the State enacted a statute which had the effect of annulling or breaking the contract, but contained a provision for payment of the obligation, it does not constitute an impairment of the obligation of the contract. Caldwell v. Donaghey, 108 Ark. 60; Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437.

It does not appear from the abstract of the record whether the claim of appellants was based upon earned compensation under the contract, or for damages on account of the breach of the contract, but it is unimportant to discuss that feature, for the reason that, whatever the nature of the claim is, the statute required that it must be presented within ninety days, which was not done, and this was a reasonable provision for discharge of the obligations and constituted no impairment of the obligation of any contract.

Affirmed.


author: Hart, J.

text:
    Whittington v. Hooks.
    Opinion delivered July 3, 1922.
    1. Trial — instruction as to undisputed facts. — Where the evidence of the parties to an action on a certain point was the same, it was not error to tell the jury that the evidence on that point was undisputed.
    2. Exchange of property — reservation of title — priority.—Where a mortgagee consented to an exchange of the mortgaged chattel for another chattel, and the third party retained title to the chattel he traded to the mortgagor until the difference in price was paid, the purchaser can enforce his title against the purchaser under the mortgage, notwithstanding an agreement between the mortgagor and mortgagee that the chattel received in the trad» would be subject to the mortgage.

      3. ' Replevin — necessity of demand before suit. — Where plaintiff and another party traded mules, and the other party sold the mule before paying the balance of the purchase money, for which • title-was. received by plaintiff on the mule exchanged by him, it was not necessary for plaintiff to demand possession from one claiming ownership before bringing suit in replevin.
    Appeal from Bradley Circuit Court; Turner Butler, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This was an action in- replevin commenced in the justice court by W. H. Hooks against J. J. Whittington to recover a buckskin mule. There was a judgment in favor of the plaintiff in the justice court, and the defendant appealed to the circuit court. On a trial de novo in the circuit court there was again a verdict and judgment for the plaintiff.
    It appears from the record that F. F. Brunson bought two mules from W. H. Hooks and Sam Quimby, who are dealers in livestock. Brunson mortgaged the mules to the Tobin Mercantile Company. Subsequently Brunson found that one of his mules would not work to suit him, and he obtained permission from the Tobin Mercantile Company to trade the mule for another one. It was agreed between them that the mule he should trade for should be substituted in the mortgage for the one traded off. Brunson then traded mules with Hooks and Quimby.
    According to their testimony, Brunson agreed to pay them $37.50 difference between the two mules, and it was agreed between them that the title to the mule they traded to Brunson should remain in them until the $37.50 was paid. They also testified that the $37.50 had not been paid, and that Brunson had turned the mule over to the Tobin Mercantile Company in part payment of his indebtedness to it, and that company had sold.the mule to J. J. Whittington.
    On the other hand, Brunson testified that there was no.reservation of title in the mule at the time he traded for it from Hooks and Quimby. He admitted that he agreed to pay them $37.50 as the difference between.the mules in the trade, and that he still owes them that amount.
    The evidence also shows that the title to the mule in question was in Hooks at the time it was traded to Brunson.
    The case is here on appeal.

      D. A. Bradham, for appellant.

      J. C. Clary, for appellee.
   Hart, J.

(after stating the facts). One of the assignments of error is that the court erred in instructing the jury. The court told the jury that the undisputed evidence showed that Brunson was indebted to Hooks in the sum of $37.50, and that the only question for them to decide was whether or not it was understood by both parties that Hooks should retain the title to the mule until the $37.50 was paid.

The court instructed the jury that the burden of proof was on Hooks. The court also instructed the jury that, if the mule was traded merely on an agreement with Brunson to pay the sum of $37.50 without any reservation of title in Hooks, the latter was not entitled to recover the mule.

The instructions given were correct. The evidence of both parties to this lawsuit shows that Brunson agreed to pay Hooks $37.50 as the difference when he traded another mule for the mule in question, and that he has not paid that amount to Hooks. Hence there was no error in telling the jury that the evidence on this point was undisputed.

The point in dispute between the parties was whether or not Hooks retained title to the mule in question until the $37.50 was paid, and this question was submitted to the jury under proper instructions.

It is true that Brunson had mortgaged the mule he traded to Hooks, but this did not make any difference, for two reasons. In the first place, he received permission from the Tobin Mercantile Company to trade the mule, and in the second place, the title to that mule is not involved in this suit. The title to the mule which Hooks traded to Brunson alone is involved in this lawsuit.

As between the Tobin Mercantile Company and Brunson, the agreement that the mule traded for should be substituted for the one already included in the mortgage was a valid and binding contract.

In Howell v. Walker, 111 Ark. 362, it was held that an agreement for substitution in a chattel mortgage is valid in equity between the parties, under the maxim that equity treats that as done which the parties intended to be done.

Hooks was not a party to this agreement, and it had no effect whatever on his rights in the premises. He had title to the mule he traded to Brunson, and under numerous decisions of this court he had a right to retain the title to his own property until he was paid therefor.

The jury by its verdict found that Hooks retained the title to the mule he traded to Brunson until the $37.50 balance due on the purchase- price was paid. When Brunson turned the mule over to the Tobin Mercantile Company in part payment of his mortgage indebtedness and failed to pay Hooks, as he had agreed to do, the latter had a right to replevin the mule. The Tobin Mercantile Company sold the mule to J. J. Whittington, who claimed the same at the time the present suit was instituted. Therefore it was not necessary for the plaintiff to make demand for the mule before bringing the suit. Sibeck v. McTiernan, 94 Ark. 1.

It follows that the judgment must be affirmed.