text:
    First National Bank v. Duvall.
    Opinion delivered January 8, 1923.
    1. Landlord and tenant — notice op landlord’s lien. — Where a bank, upon taking oyer the affairs of another bank, employed the cashier of the closing bank to settle its accounts, and there-, after through him came into possession of cotton warehouse receipts which, at the time they were accepted-by him as cashier' of the closing bank, were known to be subject to a landlord’s lien, the second bank was chargeable .with notice of the landlord’s lien, and liable therefor.

      2. Landlord and tenant — release op lien — evidence.—Evidence that one holding a landlord’s lien on a cotton crop had in effect permitted a substitution of 'one tenant for another upon the substituted tenant’s agreement to pay the rent and supply bill held insufficient to prove a release of his lien.
    Appeal from Conway Circuit Court; J. T. Bullock, special judge;
    affirmed.

      Strait & Strait, for appellant.
    The court was without jurisdiction to hear and determine the cause. It was error to withdraw the case from the jury. 67 Ark. 362; 60 Ark. 357; 67 Ark. 455; 31 Ark. 131; 52 Ark. 158. The consent by appellee to the removal of the crop waived his landlord’s lien. 60 Ark. 357; 34 Ark. 691. The court should have sustained the motion to dismiss. 122 Ark. 141.

      Edward Gordon, for appellee.
    The landlord has a lien upon the crop grown upon his land for the rent and supplies furnished the tenant. Crawford & Moses ’ Digest, §§ 6889-90; 34 Ark. 691.
   Wood, J.

This is an action in justice court by S. A. Duvall, hereafter called appellee, against the First National Bank, hereafter called appellant, and others. The appellee in his complaint alleged that he rented certain lands to one L. Kibby for the year 1920, for which Kibby agreed to pay one-fourth of certain bales of cotton, describing the same by the ginner’s and warehousemen’s numbers. The appellee alleged that the cotton was stored in the Morrilton Cotton Warehouse Company, and that the appellant held the warehouse receipts. The appellee further alleged that, in addition to one-fourth of the cotton due as rent, he had furnished to Kibby, in order to enable him to make the crop for the year 1920, supplies in the sum of $85. The appellee prayed for an order for specific attachment of the cotton and judgment for the amount due him for rents and supplies, and that the cotton be subjected to the payment of the same. The attachment was duly issued and levied and a forthcoming bond executed by the appellant. In his complaint the appellee named L. Kibby, the appellant, .and the Morrilton Cotton Warehouse Company as defendants. He did not name W. A. Duvall, but before the cause was heard in the justice court W. A. Duvall, by written petition, asked to be made a party. He waived service. In his petition he set up that he rented the land upon which the cotton in controversy was grown, and that the appellee furnished him supplies to make the crop, and admitted that the appellee had a valid and subsisting lien on the cotton and for his rents and supplies. He further alleged that before he had completed gathering the crop he sold his interest to L. Kibby. He prayed that, if the cause were appealed by the bank, he be relieved from all costs.

The appellant demurred in the justice court, setting up that the complaint did not state a cause of action against it, and that the court was without jurisdiction. The trial in the justice court resulted in a judgment in favor of the appellee against the appellant for his claim, and sustaining the attachment. The cause was appealed to the circuit court. The testimony at the trial was substantially as follows:

The appellee testified that he rented the land upon which the cotton was grown to his son, W. A. Duvall, for the year 1920, who was indebted to appellee in the sum of $243 for supplies and for rent. Kibby bought the crop in the first part of the fall from W. A. Duvall and agreed to settle his debt to the appellee for the supplies and rent. W. A. Duvall owed the appellee for supplies the sum of $85 and the sum of $45 for rent, one-fourth the value of the three bales of cotton,- which amounts were due and liad not been paid. Appellee instituted this action and had the attachment issued and levied on the cotton, which had been stored in the warehouse by Kibby, and for which the appellant held the warehouse receipts. The appellee did not mention the matter to the bank himself, but had another to do so for him. Appellee knew where the cotton was all the time.

L. Kibby testified that lie bought, the crop from (Bud) W. A. Duvall; that he gathered the cotton and placed it in a -warehouse and.turned the receipts over to Mr. Massey of the Citizens’ Bank, and told him at the time that there was a landlord’s lien against one-fonrtlv of the cotton. The cotton was stored in the name of Duvall and Kibby. It was the understanding between witness W. A. Duvall and the appellee, at the time of the purchase, that witness was to pay the supply bill and the rent. He paid part of the supply bill, leaving something like $85 unpaid.

Massey testified that the warehouse receipts for the cotton in controversy were transferred by Kibby to the Citizens’ Bank, and the Citizens’ Bank later sold them and transferred them, along with other assets, to the appellant. The Citizens ’ Bank had a mortgage on the cotton crop grown by W. A. Drivall on the land of S. A. Duvall for the year 1920. When Kibby bought the crop from W. A. Duvall, he assumed the payment of W. A. Duvall’s notes to the Citizens’ Bank. The warehouse receipts transferred to the appellant were put up with the Citizens’ Bank as collateral to secure the bank for money advanced to Kibby. The Citizens’ Bank thought it owned the receipts. It never had authority from Kibby or Duvall to apply this collateral to Kibby’s debt. The bank only held them as collateral. It borrowed money on them two or three times in Little Rock. The receipts were negotiable instruments. They were first transferred to the Citizens’ Bank, and the Citizens’ Bank transferred them to the American Bank of Commerce & Trust Company "at Little Rock. When the Citizens’ Bank sold out to the appellant, the latter paid off the indebtedness of the Citizens’ Bank to the Little Rock bank and got the receipts in that way. When the appellant took over the- assets of the Citizens’ Bank, witness went with the appellant as its employee. Witness’ duties were to look after the affairs of the Citizens ’ Bank which the appellant had taken over. He ivas a clerk of the appellant, and assisted it in collecting the indebtedness due the Citizens1 Bank. "When the transfer was made of all of-the assets of the Citizens’ Bank to the appellant, nothing was said about the names in which the warehouse receipts were' issued. The cotton was stored in the warehouse in the first part of 1921, and was sold by the appellant for twenty and five-eighths cents per pound, less expenses.

Clifton Moose testified that he was the cashier of the appellant. That the appellant became the owner of the cotton through the warehouse receipts. The appellant did not know anything about any landlord’s lien on the cotton, or.the claim of a lien. None of the bank’s officials knew about that. Witness transacted the business of making the transfer. .The Citizens’ Bank had transferred all of its assets to the appellant. Witness saw the receipts, but paid no attention to the name, as the appellant bought them by number. Warehouse receipts are negotiable instruments.

At the conclusion of the testimony the court withdrew the cause from the jury and declared that under the testimony, as a matter of law, the appellant was liable to the appellee in the sum of $130. Judgment was rendered in appellee’s favor for that sum,' from which is this appeal.

While Moose, the cashier of appellant, testified that he negotiated the transaction for the appellant resulting in the transfer of the cotton in controversy to the appellant, and that the appellant knew nothing of the appellee’s claim for rents and supplies, nevertheless it occurs to us that, under the undisputed facts established by the evidence, appellant was charged with notice of the appellee’s claim. The undisputed testimony shews that Massey was the cashier of the Citizens’ Bank at the time it acquired the warehouse receipts as collateral. These receipts were issued in the name of Duvall and Kibby. At that time the Citizens’ Bank had a mortgage on this cotton, Avhich specifically stated that the cotton Avas grown on the land of the appellee. Massey Avas also informed at the time of the transfer of the warehouse receipts to the Citizens’ Bank that there was a landlord’s lien upon the same. Massey testified that when the assets of the Citizens’ Bank, including the warehouse receipts, were transferred to the appellant, he was employed by the appellant to look after the business of the Citizens’ Bank that had been taken over by the appellant.

The testimony of Massey was not disputed. His testimony, taken in connection with the warehouse receipts themselves, and the mortgage showing that the cotton was grown on the land of the appellee, and the testimony of Kibby, which was undisputed, that, at the time of the transfer of the warehouse receipts for the cotton to the Citizens ’ Bank, he informed its cashier, Massey, that there was a landlord’s lien, all together certainly constituted notice to appellant of the lien of the appellee. Moreover, notice to Massey, under the circumstances, was notice to appellant, because Massey was specially designated by appellee to collect the Citizens’ Bank accounts. The undisputed testimony shows that the appellee had not released his lien. His consent that Kibby purchase the crop, ungathered in the field, from W. A. Duvall, upon the agreement of Kibby to pay appellée his rents and supply bill, was but tantamount to the substitution by appellee of one tenant for another. It did not constitute, on the part of the appellee, a waiver or relinquishment of his lien.' He brought his action to enforce his lien by specific attachment, pursuant to the provisions of §§ 6897 and 6899 of Crawford & Moses’ Digest. Both Kibby and W. A. Duvall were parties. The court had jurisdiction. See Ferniman v. Nowlin, 91 Ark. 20, and cases there cited.

The appellant, as we have seen, was not an innocent purchaser of the cotton. When the attachment was levied and it executed a forthcoming bond and sold the cotton, it became liable to the appellee for the amount due him for rents and supplies. The court was correct in so declaring as a matter of law. See §§ 6889 and 6890, C. & M. Digest, and Volmer v. Wharton, 34 Ark. 691.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Hart, J., (after stating the facts).

license: Public Domain

text:
    Caldwell v. Caldwell.
    Opinion delivered January 8, 1923.
    Divorce — custody op children — Under Acts 1921, No. 257, providing that, where the husband and wife are living apart, there shall be no preference as to the custody of the children, but that the welfare of the child must be considered first in determining the custody of such child, held that where parents were divorced, and the husband applied for an order giving him custody of their son, upon proof that the mother was of excellent character and in every way fitted to train the child morally, a decree that' each parent have the child one-half of the time until he becomes six years of age, at which time the mother shall have custody of the child during the school term and the father during the vacation period, will not be disturbed on appeal.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    Charles E. Caldwell prosecutes this appeal to re-' verse a decree awarding the custody of their infant child to the mother, who had been divorced from him.
    It appears from the record that on the 6th day of January, 1921, the Pulaski Chancery Court granted a decree of divorce to Lois H. Caldwell in a suit wherein she was the plaintiff and Charles E. Caldwell was the defendant. It was decreed that the custody of their infant child should be divided between the husband' and wife, each having the custody for two months at a time until the child should become six years of age. The decree further provides that if the parties fail to agree at that time as to which of them shall have the custody of the child, during the school term, the matter of his custody, shall be again submitted to the court.
    On January 13, 1922, Charles E. Caldwell filed his petition in the Pulaski Chancery Court in which he stated that their said child would soon be of school age, and asked that the custody of the child be awarded to him during the school term of each year.
    The father resides in the town of Searcy, Ark., with his jnother. The mother of thé- child married again in the first part of January, 1922, and resides with her husband in the city of Little Bock. Both parties are of good moral character, and wish the custody of the child.
    According to the testimony of Charles E. Caldwell, he resides with his mother in Searcy, Ark., close to the public school. They have excellent public schools there. The witness is engaged in selling and repairing typewriters, and earns about $85 on an average per month. He has not remarried, and lives with his mother. His mother has no other child, and has property which brings her in an income of about $100 per month. She has a good home, and is devoted to her son and grandson. The mother of Charles E. Caldwell in every respect corroborated the testimony of her son, and said that she loved him and his child devotedly. She wished her son i.o have the custody of his child, and promised to help rear him. Charles E. Caldwell is 27 years of age, and his mother is 50.
    Other witnesses who live in Searcy testified that Charles E. Caldwell and his wife resided there before they were divorced. They said that while she was away from home the mother of Charles E. Caldwell took care of her grandson, and seemed very devoted to him. They knew Mrs. Caldwell, the grandmother of the child, and the mother of the child quite well. They expressed tire opinion that it would be better for the child’s interest to live .with his grandmother.
    The mother of the child married F. B. Michell.on. January 7, 1922, and they lived at his home in Little Rock, Ark. Her husband works in his father’s office in the Fair Store Corporation, and earns $125 per month. She works in the same store as a stenog'rapher, and earns $75 per month. While the witness is working she leaves her little son with her mother or with her married sister. It is her purpose to send her son to school as soon as he is old enough. Her husband has stock in the Fair Store Corporation, and. his dividends amount to between $500 and $1,000 per year. The husband corroborated the testimony of his wife, and wanted her to have the custody of the child.
    Other witnesses testified that the mother of the child was of excellent character and in every way fitted to train him morally. The above is the substance of the testimony introduced before the chancellor.
    It was decreed that the father and the mother should each have the child one-half of the time until he- became six years of age. At that time the decree provides that the mother shall have the custody of the child during the school term and the father during the vacation period.
    To reverse this decree the father has duly prosecuted an appeal to this court.

      John E. Miller, C. E. Yingling and Brundidge & Neelly, for appellant.
    The procedure adopted by appellant to obtain the custody of his child has been approved in the following oases: 95 Ark. 355; 118 Ark. 582; 124 Ark. 579. The decree was final and appealable. 124 Ark. 579. The father is generally preferred over all others if he be of good moral character and able financially to support the child. Sec. 4991, C. & M. Dig.; 37 Ark. 27; 82 Ark. 461; 95 Ark. 355; 32 Ark. 96; 21 Enc. Law, 1036-37. The best interests of the child are to be considered in awarding its custody. 78 Ark. 93; 117 Ark. 90; 80 Ark. 287; 89 Ark. 501. See also 20 R. C. L. p. 601, sec. 15. The appellant offers every inducement for -the wellbeing of the child in the way of home, schooling and parental care. ■

      J. II. Carmichael, for appellee.
    There was no appeal by appellant from the original decree, nor has he shown a change in circumstances of the appellee which would warrant a change in the custody of the child. See 124 Ark. 579; Jackson v. Jackson, 151'Ark. 9. The cases cited by 'appellant were before the passage of act 257 of the Acts of 1921. The best interest of the child would be served by allowing the mother to keep it. The child has not yet arrived at the age contemplated in the decree when a further order as to its custody might become necessary, and is still in need of that mother’s care and control which the court found was necessary in 64 Ark. 518. See also 118 Ark. 591.
   Hart, J., (after stating the facts).

The Legislature of 1921 passed an act providing, where the husband and wife are living apart, that there shall be no preference between them as to the custody of their children, but that in each case the welfare of the child must be considered first in determining the custody of such child.

Under this statute the chancellor must keep in view primarily the welfare of the child, and, in case of divorce or separation of the father and mother, will confidents custody to the parent most suitable therefor, as the right of each to its custody is of equal dignity. Jackson v. Jackson, 151 Ark. 9.

It follows that the father has no preferential right to the custody, as contended for by his counsel.. In the instant case both the father and mother are of good moral character and love the child. The child is not yet six years of age, and is at that tender age where he requires the attention which a mother can better bestow upon him. In cases like this the custody of the child is not awarded for the purpose of gratifying the feelings of either parent or with any idea of punishing or rewarding either parent. The fitness of the respective parties Of this suit to care for the child is not challenged.

It is urged that the grandmother loyes the child, and is better able to care for him because she is not engaged in any work which, takes her from home, while, on the other hand, the mother of the child, is engaged at work and is away from home during the day. In answer to this it may be said that the child will, soon be of school age and will be at school during most of the day. Besides this, while she is at work he will be looked after by the sister of his mother, or his grandmother • on his mother’s side; and the mother stated that she would quit work, if necessary, to look after her child. If she should neglect the child, or if her condition or situation in life should be changed- so as to make it to the best interest of the child, his custody could at any time be transferred to his father.

Therefore, considering all the surrounding circumstances, it cannot be said that the finding of the chancellor on the facts and his award of the custody of the child is against the preponderance of the evidence and should be disturbed on appeal.

Therefore the decree will be affirmed.-


author: Hart, J. (after stating the facts).

text:
    Solomon v. Keesee.
    Opinion delivered January 8, 1923.
    1. ' Deeds — construction of instrument.. — Whether an instrument is a deed or bond for title must be determined by the parties’ intention as derived from the whole instrument.
    2. Deeds — construction of instrument. — An agreement for sale of land for $3,600, payable $300 cash and $330 yearly for 10 years as evidenced by 10 notes, deed to be held in escrow until the notes were -paid, although using the words “grant, bargain and sell,” held not a conveyance, but an agreement to convey.
    3. Vendor and purchaser — agreement to sell with rental clause. — An agreement for sale of land for $3,600, payable $300 cash and $330 yearly for 10 years, authorizing the purchaser to take immediate possession at an agreed rental of $330 per annum, said sum when paid to be applied upon the principal, held to create the relation of landlord and tenant until all of the purchase money is paid.
    4. Landlord and tenant — lien for rent. — Where cotton was grown on land held by a purchaser under an executory contract with a rental clause, the vendor or landlord had a lien thereon, enforceable against one purchasing the cotton with notice thereof.
    Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    Louis Solomon and M. L. Hicks brought this suit in the chancery court against B. J. Stewart, T; W. Keesee Sr., and T. W. Keesee Jr., partners doing business under the firm name of T. W. Keesee & Co., to recover the possession of three bales of cotton sold by Stewart to his codefendant and on which the plaintiffs claim a landlord’s lien.
    On the 18th day of December, 1919, Louis Solomon and M. L. Hicks entered into a written contract with B. J. Stewart as follows:
    ‘ ‘ This agreement, made and entered into on this date by and between Louis Solomon and M. L. Hicks, as parties of the first part, and B. J. Stewart, as party of the second part,, witnesseth:
    “That for and in consideration of the sum of $3,600 to be paid by B. J. Stewart as follows: $300 cash in hand paid, receipt of which is hereby acknowledged, and the execution of ten promissory notes each for the sum of $330, bearing interest from date at the rate of ten per cent, per annum, interest payable annually, and due on or before one, two, three, four, five, six, seven, eight, nine, and ten years after date.
    “And, for the above consideration parties of the first part do hereby grant, bargain, sell and agree to convey unto the party of the second part the following described land, lying in the county of Phillips, State of Arkansas, to-wit:
    “The southeast quarter of the northeast quarter of section thirty-one, township one south, range three east, containing forty acres, more or less.
    “Parties of the first part agree to convey said land by good and sufficient warranty deed, free from all incumbrances, and furnish an abstract for inspection, showing a good and merchantable title to same. Said deed to be placed in escrow with the Security Bank & Trust Company and held by said bank until the above notes have been paid.
    “Party of the second part agrees to take said land and make said payments at the time and manner above set forth, and to pay all taxes on the land during the life of this contract.
    “It is agreed that the second party shall take imm.fidiate possession of said land at an agreed rental of $330 per annum, said sum, however, when so paid to be applied upon the above principal.”
    The lands described in the contract were cleared and the cotton in controversy was grown upon them during the year 1920 by B. J. Stewart. On the first day of March, 1920, B. J. Stewart executed to T. W. Keesee & Co. a chattel mortgage on all of the crop of cotton he might raise on said land during the year 1920, for the purpose of procuring supplies for - that year. The cotton in question was grown by Stewart on the land, and was turned over to the mortgagees in part satisfaction of their mortgage indebtedness. None of the notes given by Stewart to Solomon and Hicks, under the instrument copied above, were paid; nor did Stewart pay them any rent or recognize them as his landlord.
    The chancellor was of the opinion that the instrument in question created the relation of vendor and vendee, instead of landlord and tenant. Whereupon the complaint was dismissed for want of equity, and the plaintiffs have duly prosecuted an appeal to this court.

      J. G. Burke, for appellants.
    The contract created a sale upon condition, and, upon default in making the payments as stipulated therein, the relation of landlord and tenant existed. 48 Ark. 413; 78 Ark. 574, 578; 18 Am. & Eng. Enc. of L. 168-169; 76 Ark. 578; 95 Ark; 32,

      John I. Moore, and John 1. Moore, Jr., for appellees.
    Tlie contract is an absolute conveyance, — a consummated sale of land, with no provision for terminating tlie same upon failure to pay the purchase money notes and converting the relation to that of landlord and tenant. The two relations, vendor and vendee and landlord and tenant, are inconsistent and cannot exist .at the same time. Where the relation of landlord and tenant 'does not exist, merely denominating the debt as rent in certain contingencies will not make it rent. 92 Ark. 324; 39 Ark. 560; 51 Ark. 218; 54 Ark. 16; 61 Ark. 515; 82 Ark. 209; 78 Ark. 230. '
   Hart, J. (after stating the facts).

It iis first sought to uphold the decree on the theory that the instrument copied in our agreed statement of facts was an absolute conveyance, and that the relation of landlord and tenant did not exist between the plaintiffs and the defendant, Stewart.

This court has held that whether an instrument of writing is a deed or bond for title must be determined by the intention of the parties derived from the whole instrument, and, in the application of the rule, has held that instruments of a similar character are bonds for title or agreements to convey land, and not a present conveyance of it. Kelly v. Doolling, 23 Ark. 582, and Mays v. Blair, 120 Ark. 69.

In this case Solomon and Hicks executed and delivered to Stewart an instrument binding themselves to make a deed upon the performance of the conditions mentioned, and Hicks on his part signed the same instrument to perform the terms which constituted the price of the land or the payment of rent. It would hardly seem probable that the vendors intended this as a present conveyance when only $300 out of $3,600, the amount of the purchase money, was paid. Although the instrument uses the words, “grant, bargain, and sell,” they are coupled with the added words, “and agree to convey”. When construed -with reference to these words and the surrounding circumstances, it would seem to have been their intention to execute an executory instrument.

This view is strongly supported by the last clause of the instrument which binds Stewart to pay an agreed rental of $330 per annum. Then, too, the instrument binds the vendors to execute a warranty deed to the land, to be placed in escrow with a designated bank until the purchase price was paid. If the instrument is to he construed as a present conveyance, then there was no use to provide for the payment of rent or for the execution of this deed in escrow.

When the contract is read from its four corners, in connection with the attending circumstances, we think the instrument was not a present conveyance, but was an executory contract to convey the land.

Again it is sought to uphold the decree on the theory that the contract in question created the relation of vendor and vendee, instead of landlord and tenant.

We do not agree with counsel in this contention. This court has held that by an agreement of this sort, the relation of landlord and tenant is created, with all its rights and incidents, referable to the time provided in the contract for that relation to exist. Murphy v. Myar, 95 Ark. 32, and Martin v. Allen, 154 Ark. 612.

In the instant case -the contract contained the following: “It is" agreed that the second party shall take immediate .possession of said land at an agreed rental of $330 per annum, said sum, however, when so paid, to be applied upon above principal.”

Pursuant to the contract, Stewart did take immediate possession of the land, and raised a crop upon it. If the section just quoted does not have the effect to create the relation of a landlord and tenant between the parties, it has no meaning whatever, and had just as well been left out of the contract. It was evidently placed in the contract for some purpose, and it would seem that the only purpose it could legitimately serve would be to create the relation of landlord and tenant between the parties until tlie whole purchase price was paid. In this way the vendor could secure himself the payment of the purchase price, and without it he would have but little security. There appears to have been no dispute that the cotton was grown on the premises, nor as to its purchase by Keesee & Co. with knowledge of that fact.

From the views we have expressed, it follows that the court erred in dismissing the complaint for want of equity; and for that error the decree will be reversed and the-cause remanded for further proceedings in accordance with this opinion, and not. inconsistent with the principles of equity.


author: Hart, J.

text:
    McGuffin v. State.
    Opinion delivered January 8, 1923.
    1. Intoxicating liquors — possession of unregistered still. — In a prosecution for possessing- a still without registering- it, evidence held sufficient to warrant conviction.
    2. Indictment and information — amending record nunc pro tunc. — On a motion to quash an indictment on the ground that the records did not show that it was returned by the grand Jury or filed in open court, it was not error, upon a proper showing, to amend the record nunc pro tuno to show such return and filing.
    3. Continuance — showing of diligence. — Where one continuance was granted to defendant to procure the attendance of absent witnesses, and six weeks’ later a second continuance was asked for the absence of the same witnesses, there was no abuse of discretion in refusing the second continuance where defendant did not show that he exercised any diligence to procure their attendance, or that he could procure. same at any time in the future.
    • L Continuance — list of witnesses. — Though the names of the witnesses for the State were not indorsed on the indictment, as required by Crawford & Moses’ Dig., § 3010, where the court told defendant he could by motion have a list of witnesses for the State furnished him, it was not error to refuse a continuance until he could investigate them.

      5. Criminal law — statements of conspirator. — Any act done or declaration made by one of two conspirators in furtherance of the conspiracy, though in the other’s absence, may be shown in evidence against the other.
    6. Criminal law — evidence.—In a prosecution for possessing a still just after Christmas in 1921, evidence that a witness purchased liquor from accused on April 1, 1922, was competent.
    7. Criminal law — expert testimony. — In a prosecution for possessing a still, the sheriff, being experienced in such matters, was competent to explain the various parts of the.still and to show how' they were put together.
    8. Criminal law> — instruction—harmless error. — In a prosecution for possessing a still, there was no prejudicial error in an instruction which stated the whole of section 2 of the act defining the offense, part of which related to other offenses, where in other instructions the court stated what offense defendant was charged with.
    9. Criminal law — instruction—objection.—Where the 'court gave an instruction as to the credibility of witnesses and as to reasonable doubt, which was incorrect as to reasonable doubt, a correct instruction as to the credibility of witnesses, asked by defendant and given by the court, was not a specific objection to the reasonable doubt feature of the former instruction.
    LO. Intoxicating liquors — instruction as to possession of still. —In a prosecution for possessing a still, refusal of an instruction that the. term “keep in his possession” as used in the act means ownership of such property right in the still as would give him control over the disposition or operation of the still was not error, as the statute is directed against possession of a still by two persons jointly as well as by one alone.
    Appeal from Craighead Circuit Court, Lake City District; B. E. L. Johnson, Judge;
    -affirmed.

      J. H. Johnson, Oliver Hurst and T. A. Turner, for appellant.
    J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Hart, J.

Lonnie McGuffin prosecutes this appeal to reverse a judgment of conviction against him for the offense of keeping in his possession a still without registering the same as required by law.

While the defendant denied having in his possession the still in question, two witnesses for the State testified that they went to the still just after Christmas in 1921, and saw the defendant and George King in possession of the still and manufacturing whiskey with it. This occurred in the Lake City District of Craighead County, Ark. We do not deem it necessary to set out the evidence in detail. It is sufficient to say that the evidence for the State warranted the verdict.

Counsel for the defendant insists that the court erred in refusing to quash the indictment. The ground therefor is that the records of the circuit court do not show that the indictment was returned by the grand jury or that it was filed in open court in the presence of the grand jury. Upon the hearing of the motion it appears that the indictment was returned at an adjourned day of the circuit court on July 11, 1922. The indictment is indorsed as follows: “Returned into open court by the foreman of the grand jury, in the presence of all the members thereof, and filed this 11th day of July, 1922. ” The indorsement was duly signed by the clerk.

According to the testimony of the foreman of the grand jury, the indorsement was correct, and the indictment was returned by the grand jury at an adjourned term of the court which began on the 10th day of July, 1922. Upon this evidence the court made a nunc pro tunc order amending its record to show that the indictment was returned into court by the foreman of the grand jury, in the presence of the grand jury, on July 11, 1922, and -ordered to be filed by the clerk. There was no error in this. The court has the power at any time, on sufficient showing, to amend its records so as to make them speak the truth. James v. State, 41 Ark. 451.

It is next insisted that the court erred in refusing to grant the defendant’s motion for a continuance on account of the absence of two of his material witnesses. It appears from the record that the defendant filed his motion for a continuance on the 11th day of July, 1922, and the court postponed the case to Aug. 21, 1922, to enable the defendant to procure the attendance of his witnesses. On tlie 21st day of August, 1922, the defendant renewed his motion for a continuance because of the absence of the same witnesses. The defendant did not show that he had exercised any diligence to procure the attendance of the absent witnesses, or that he could procure their attendance at any time in the future. It appears from the sheriff’s return that they were not within the jurisdiction of the court when the defendant filed his first motion for a continuance. Having failed to show that he exercised any diligence whatever in trying to locate the witnesses, or that he could ever obtain service of process upon them, there was no abuse of discretion in the court’s refusing to grant his continuance. Striplin v. State, 100 Ark. 132; Hopper v. State, 151 Ark. 299, and Laster v. State, 151 Ark. 608.

It is next insisted by the defendant that he was entitled to a list of the State’s witnesses, under § 3010 of Crawford & Moses’ Digest. This section provides that, when an indictment is found, the names of all witnesses who were examined must be written at the foot of or on the indictment. In this connection it may be said that the testimony of the two witnesses who saw the defendant in possession of the still and making liquor with it were indorsed on the indictment.

The court told the attorneys for the defendant that lie could, by motion, have a list of the witnesses for the State furnished him, but refused to grant a continuance to the defendant until he could investigate the witnesses for the State. No exceptions were saved to the ruling of the court, and besides this, there was no error in the court’s ruling in this respect. Snow v. State, 140 Ark. 7; Cole v. State, ante p. 9.

It is next insisted that the court erred in refusing to withdraw from the consideration of the jury the testimony of Andrew Halfacre as to what George King had said to him in the absence of the defendant. Andrew Halfacre and Willie Williams were the two witnesses who went to the still and saw the defendant and George King in possession of the still and manufacturing liquor with it. These witnesses went to the still for the purpose of obtaining some liquor. They found the defendant and George King in possession of the still, and they were in the act of manufacturing liquor with it. The liquor had not yet run through the worm when they first got there. The witnesses engaged King in conversation about the still and about procuring some liquor, and it is claimed that some of the testimony was incompetent because the defendant was out gathering wood and did not hear all of the conversation. This did not make any difference. The defendant and King had .possession of the still and were both engaged in manufacturing the liquor. The testimony shows a conspiracy on their part to keep and operate the still. Any act done or declaration made by one of two conspirators in furtherance of the conspiracy, though in the other’s absence, may be shown in evidence against the other. Parker v. State, 98 Ark. 575; Butt v. State, 81 Ark. 173; and Hearne v. State, 121 Ark. 460.

It is next insisted that the court erred in allowing Cecil McDuffey to testify that he had purchased liquor from the defendant on a certain occasion. The particular occasion was about the 1st of April, 1922, and the witnesses testified that the offense in question was committed just after Christmas in 1921. Therefore the testimony was competent. Casteel v. State, 151 Ark. 69.

It is next insisted that the court erred in admitting other witnesses to testify 'that they had bought moonshine Avhiskey from the defendant. This testimony was admissible, under the rule just stated.

The next assignment of error is that the court erred in permitting the sheriff to testify how a still was set up and operated. The sheriff was experienced in such matters, and was competent to explain the various parts of a still and show how they were put together. McGarity State, 151 Ark. 423.

It is next insisted that the court erred in giving instruction No. 2 to the jury. It is claimed that the error consisted in reading the whole of section two of the act defining the offense to the jury, when he was only charged with violating that part of it which prohibits any person from keeping in his possession a still without registering the same with the proper United States officer. In other instructions the court specifically told the jury what offense the defendant was charged with, and, when all the instructions are read together, it is apparent that the jury could not have been misled about the particular offense for a violation of which the defendant was being tried. Hence we do not think that any prejudice resulted to the defendant in this regard. McGarity v. State, 151 Ark. 423.

It is next insisted that the court erred in giving to the jury instruction No. 4. This is a very lengthy instruction, and combines in it a part of the court’s-charge relative to the credibility of the witnesses and the question of reasonable doubt. The part of the instruction to which the objection is made reads as follows: “While you cannot arbitrarily disregard the evidence of any witness, yet if you find any witness has wilfully sworn false as to any material fact, then it is within your province to disregard all the evidence of such witness, or you can, if you see fit, give regard to such portion as you believe to be true and disregard that portion which you believe to be false.”

This court has held that, while an instruction in this form is faulty, it is not reversible error to give it, in the absence of a specific objection to it. Seaton v. State, 151 Ark. 240, and Murchison v. State, 153 Ark. 300.

But it is claimed by counsel for the defendant that a specific objection was made to the instruction, because they asked the court to give instruction No. 1, which reads as follows:

“If you should find that any witness has sworn falsely as to any material matter of fact in issue in this case, then yon may disregard such portions as yon believe to be not true, or may reject it all, if yon do not believe any of it to be true and the testimony -wholly unworthy of credence.”

This instruction was correct, and was given by the court. It did not serve as a specific objection, however, for the reason that it only covered the question of the credibility of the witnesses, and the instruction given by the court covered not only the question of credibility of the witnesses, but also that of reasonable doubt. Hence it cannot be said that the court’s mind was particularly directed to the fault of which complaint is now made. The instruction was a very long one, and the court’s mind should have been specifically directed to the fault which it is now insisted that the instruction had. If this had been done, doubtless the court would have changed the language of the instruction to meet the objection offered. The reason that a correct instruction asked by one party on a specific point amounts to a specific objection to an instruction given by the court at the request of the other party is because the mind of the court in reading them is directed to their inconsistency. The instructions, being on the same point, necessarily call the court’s attention to their inconsistency. This is not the case where, one of the instructions is long and involved and covers more than one point. Such is the ease here, and we think that, in the absence of a specific objection, the court did not err in giving the instruction in question.

It is next insisted that the -court erred in refusing to give instruction No. 3, which reads as follows: “You are instructed, that the term ‘keep in his possession,’ as used in this act,- means ownership of or such property right in as would give control over the disposition or operation of the same. ”

There was no error in refusing to give this instruction. The language of the statute is directed against the possession of a still by two persons jointly as well as by one person alone. Ring v. State, 154 Ark. 250.

Other assignments of error are urged upon us by counsel for the defendant for a reversal of the judgment, but we do not deem them of sufficient importance to merit a detailed discussion. It is sufficient to say that we have considered them, and find no reversible error in the record.

Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Crutcher v. State.
    Opinion delivered January 8, 1923.
    1. Larceny — value of cow. — Under Crawford & Moses’ Dig., § 2490, in a prosecution for grand larceny, for stealing a cow, it was unnecessary to state the value of the cow.
    2. Larceny — sufficiency of evidence. — In a prosecution for grand larceny, evidence that the accused sold a cow which he had placed in his pasture to one who took her away, held to support a finding of taking and asportation.
    3. Criminal law — character witness. — In a prosecution for larceny, after the accused had testified in his own behalf, where a witness was asked as to accused’s general reputation for truth and honesty, and another was asked as to accused’s general reputation for truth and veracity, and accused moved to strike out the testimony of both witnesses, it was not error to overrule such motion, as the second question was proper.
    4. Criminal law — opinion of witness as to accused’s reputation. —In a prosecution for larceny where accused testified in his own behalf, it was not error to permit a witness for the State to testify that in his opinion the reputation of accused for truth and veracity was bad.
    Appeal from Cross Circuit Court, Second Division; B. E. L. Johnson, Judge;
    affirmed.

      B. B. Bond, for appellant.

      J. S. TJtley, Attorney General, Elbert Godwin and Win. T. Hammock, Assistants, for appellee. ••
   Smith, J.

Appellant was indicted and convicted of tlie crime of grand larceny, alleged to have- been committed by stealing a cow, the property of Joe Pearson. He demurred to the indictment on the ground that the value of the cow was not alleged. Value is immaterial in cases of this character. Sec. 2490, C. & M. Digest.

It is insisted that the testimony does not support the verdict. Witness Block testified that he bought the cow in question, and four other animals, from appellant for $40. The purchase was made, and the price paid, and a bill of sale taken, late Saturday afternoon, and the cow at the time was in appellant’s pasture, where she was left by Block until the following Monday morning, at which time he came to the pasture and drove the cow away. Appellant was not present on Monday when this was done. Appellant stated to Block at the time of the sale that he had raised all the cattle which he then sold. Block testified that the cow in question was branded JI on the right hip. The testimony shows that he was mistaken in this, and that the cow was branded on the left hip and the brand was JP. He did not testify that he made a close examination of the brand, and the hair may have covered the loop of the P. This, however, was a question for the jury, as was also his mistake as to the hip on which the brand was found. Block drove the cow to his own pasture, and a few days afterwards saw Pearson, who asked him if he had seen a cow which Pearson then described. Block told Pearson about the cow he had bought from appellant, and Pearson identified the cow when it was shown to him, and Block turned her over to Pearson. Appellant left the neighborhood shortly after this time and remained away until the adjournment of the next term of court.

Appellant testified that the gates to his pasture were not in good repair, and cattle could get in and get out without difficulty. He testified that Block did not drive away the cow which he sold, but got another cow which had strayed into his pasture, and that the cow which he sold Block was in the pasture at the time Block got the wrong cow.

Block testified that after lie surrendered the cow to Pearson he went to appellant’s place to see him about the sale. Appellant was not there, but one Ogden was in charge, who paid Block $15 by way of refund of purchase money, this being the agreed value of the cow, which was the most valuable animal of the lot bought. Block insisted that, notwithstanding his mistake about the brand, he drove away the cow which appellant sold him.

We think the testimony recited is legally sufficient to support the finding that appellant knowingly sold a cow which did not belong to him.

It is earnestly insisted that there was no asportation, and the case of Ridgel v. State, 110 Ark. 606, is cited in support of that contention. In the case cited Ridgel, the defendant, had been placed in possession of the animal which he was charged with having stolen, by the owner thereof, with direction and authority to look after the animal for the owner. Here, the animal was in appellant’s pasture without the owner’s knowledge or consent, and a completed sale thereof was made. There was such a delivery as is usual in sales of this kind. The possession of the animal which appellant had by reason of having it in his pasture was transferred to Block, and by virtue of this sale, and pursuant to the authority it conferred, Block drove the'cow from appellant’s pasture to his own.

We think the testimony which we have set out supports the finding both of a taking and an asportation. See cases cited in the opinion in Ridgel v. State, supra; see, also, sec. 21, article on Larceny in 17 R. C. L.; note to case of Rex v. Taylor, 21 Ann. Cas. 854; Long v. State, 32 Sou. 870; 25 Cyc. 21.

After appellant had testified in his own behalf, S. R. Curtis was called as a witness for the State, and was-asked if he knew appellant’s general reputation for truth and honesty. The witness answered that it was bis private opinion that appellant’s reputation was bad. H. H. Stafford was also called and^was asked if he knew appellant’s reputation for truth and veracity. The witness answered that it was his personal opinion that appellant’s reputation was bad.

No objection was made to these questions at the time they were asked; but at the conclusion of all the testimony appellant asked the court to direct the-jury “to disregard the testimony of S. R Curtis and H. H. Stafford as regards reputation of defendant, ’ ’ and the court overruled the motion.

The question asked Curtis was not properly framed. Appellant had not put his reputation for honesty in issue, and his reputation in that respect should not have been included in the question. Stafford was asked about appellant’s reputation for truth and veracity; and this was a proper question, as appellant had testified in the case and was subject to impeachment as any other witness would have been.

The first objection to the testimony of either witness was the motion to exclude the testimony of both as regards the reputation of appellant. This motion did not call the court’s attention to the fact that the same question had not been asked both witnesses, and, as the question asked Stafford was a proper one, the court did not err in overruling the motion.

It is true one of these witnesses stated that it was his private opinion that appellant’s reputation was bad, and the other said it was his personal opinion that his reputation was bad. If it was thought the answers given were based upon the personal knowledge of the witnesses, rather than upon appellant’s general reputation, that objection should have been made. The questions asked the witnesses were in proper form so far as the source of the opinion-was concerned. This is shown, not only by the phraseology of the question, but also by the cross-examination of the witnesses as to the persons -whom- they had heard discuss appellant’s reputation.

We think the witnesses were merely stating their Gonelnsions as to what appellant’s general reputation was, and this they had the right to do.

No error appearing, the judgment is affirmed.


text:
    Murchison v. Murchison.
    Opinion delivered January 8, 1923.
    1. Trusts — resulting trust — evidence.—Evidence that a wife purchased a lot and built a house thereon, paying for same out of her own savings, held to warrant a finding of a resulting trust in favor of her heirs, as against a second wife claiming the property under the husband’s will.
    2. Trusts — -resulting trust — sufficiency of evidence. — Proof establishing a resulting trust should be clear, satisfactory and convincing, but it need not be undisputed.
    3. Gift — advancement by husband. — A contribution by a husband to the building of a house being erected by his wife is presumed to have been a gift.
    Appeal from Clark Chancery Court; James D. Shaver, Chancellor;
    reversed.

      R. W. Hide, Jr., for appellant.
    The court erred in dismissing the complaint of the plaintiffs. Where the cash payment on the purchase of land is made by the wife, a trust arises in her favor to that extent, though the husband takes the conveyance to himself for the unpaid purchase money. 47 Ark. Ill; 14 S. W. 474; 101 Ark. 451;. 142 S. W. 848.

      John H. Crawford and Dwight H. Crawford, for appellee.
    The finding of the chancellor was correct. There was no resulting trust in the transaction. 55 Ark. 414; 145 Ark. 161; 147 Ark. 575. To establish a resulting trust by parol, the evidence must be full, clear and convincing. 44 Ark. 365; 114 Ark. 128.
   Smith, J.

Appellants Olando Murchison and Code Young, Who were the plaintiffs below, are the children and heirs-at-law of Amanda Murchison, who, sometime prior to 1899, married Henry Murchison. G-ocie Young was' Amanda’s child by a former marriage; ' while Orlanda Murchison was'her child by Henry Murchison. Amanda died in 1902, and Henry married again. He died testate in 1921, and by his will devised to his second wife, Narcissa, the property which forms the subject-matter of this litigation — a- lot in the city of Arkad'elphia. The purpose of the suit is to have a resulting trust declared in favor of the plaintiffs. The court denied the relief prayed, and this appeal is from that decree.

It is conceded by appellants that they are not entitled to the relief prayed unless by testimony that is clear, positive and satisfactory they have shown themselves entitled to the relief prayed. Have they met this burden? We think they have by the following testimony.

. Amanda was employed as cook by J. H. Abraham, who for many years was sheriff of Clark County. Henry Murchison was a section-hand, and lived for a large part of the time in railroad boarding-cars.

Felix Ivy testified that he was a neighbor and friend of Amanda, and he negotiated a trade with Mrs. Lucretia Jamison, who owned the lot in question, whereby Mrs. Jamison' agreed to sell, and afterwards sold, the lot to Amanda for $50. Amanda built a house on the lot, in which she lived for three or four years before her death. Witness paid for a bill of lumber used by Amanda in building the house, amounting to $30. This was repaid witness by Amanda in small payments made from time to time. Witness knew the lot which he bought for Amanda by number, and he bought an adjoining lot for his sister-in-law. Amanda and Henry did not always get along well together, and he spent much of his time away from her home.

Pearl Ivy, the wife of Felix, substantially corroborated her husband. In addition, she testified that Amanda and Henry disagreed about buying the lot, and ,flenry refused to assist her, but she got Felix to make the trade for her and gave him $5 to make the initial payment. Henry got mad when Amanda bought the lot, left home and remained away for three or four months, during which time Amanda commenced the house, but Henry returned before the house was completed. Amanda lived in the house until she died. A short time before Amanda’s death witness heard a conversation between her and Henry in which she told Henry to get her the deed, and Henry assured her that Mr. Abraham would make the deed, and Henry always referred to the house as Amanda’s.

Grocie Young is a woman now thirty-six years old, and she related the same circumstances about which Felix Ivy and his wife testified. In addition, she produced the following note:

“ $25.00 Arkadelphia, Ark., April 15, 1899.
‘ ‘ Twelve months after date we promise to pay to the order of James H. Abraham the sum of forty-five dollars. This note is given for the purchase money of lot 48 in Trigg’s Addition to the city of Arkadelphia, and bears 10% interest from date until paid.
“Amanda Murchison.”

Grocie Young further testified that her mother paid Abraham the note by having him deduct from time to time portions of her wages as cook. She saw this done on several occasions. She also testified that Henry Murchison gave her the note set out above, that he got it out of his trunk and told her that he had saved it for her.

A son of Abraham testified that Amanda paid his father on the lot in dribbles. He saw several of these payments made, and heard the matter discussed between Amanda and his father and mother when payments were made. If Henry ever made any payment, witness knew nothing about it.

Richard Wingfield, a nephew of Henry Murchison, testified that he was employed by Henry to build the house and was paid $25 for doing so, and that Amanda paid him nothing at all for his work, and that he never saw her at the house while he was working there. He testified that Amanda would go to the jail, where she was cooking, before witness began work in the morning, and would not return until he had quit in the afternoon.

Joe Meekins testified that he built the chimney, and Henry paid him $25 for doing so, and Amanda paid him nothing for work which he did.

Two deeds were offered in evidence. One of these was dated April 4, 1899, and is a deed from Lucretia Jamison to J. H. Abraham, and conveys the lot in litigation. It recites a consideration of $65 cash in hand.paid. The other deed is dated May 14, 1903, and is a warranty deed from Nancy J. Gordon and Lucretia Jamison to James II. Abraham, and recites that for the consideration of $37 cash in hand paid the grantors have conveyed a. lot twenty-five feet wide adjoining the lot in controversy.

In addition, there was an agreed statement of facts, from which we copy the following recitals. The lot in litigation was assessed on the taxbooks in the name of Henry Murchison for the years 1900,1901, and 1902, and all subsequent years until his death in 1921. That in 1899 the taxes were paid by Mrs. Jamison, in whose name the lot was then assessed.

J. H. Abraham was collector in 1899 and for ten years thereafter. The two deeds to Abraham set out above were found by his executor on April 4, 1915, in the office of the recorder of Clark County, in a box where deeds were kept when the owners did not have the money to pay the recording fees. There was a memorandum on the back of the deed dated April 4, 1899, in the handwriting of Abraham as follows: “This man owes me $47 with interest 10% from date of last deed, which is the 14th day of May, 1903. When this paid, make Henry Murchison deed. ’ ’

On March 25, 1908, Abraham and his wife executed to Henry Murchison a deed to the land described in the deeds to Abraham, and as Abraham delivered the deed he said to Henry Murchison: “You have paid for your place, and here is your deed, and you should have it recorded. ” Murchison was not able to pay for recording the deed, and left it with the recorder to keep until the fee was paid, and it remained with him until found by Abraham’s executor. That appellee, Narcissa Murchison, has collected the rent on the land in contro'vérsy 'since September 25,1921, amounting to $4 per month, and has made repairs amounting to $16, and has paid taxes amounting to $4.87.

We think, from the testimony recited, that the finding should be made that Amanda purchased the lot, and the deed therefor made to Abraham should be treated as in effect a mortgage which he took to secure the payment of the money he advanced for her. Camden v. Bennett, 64 Ark. 155.

While it is necessary that the proof to establish a resulting trust should be clear, satisfactory and convincing, it is not essential that it be undisputed; and while the testimony of Wingfield does not entirely harmonize with that of Ivy and his wife, we accept the testimony of the two last-named witnesses in so far as there is a con ■ flict. They have no interest in this litigation, are not related to any of the parties, and their testimony accords with other testimony which is practically undisputed.

There appears to be no question that the purchase of the second lot was made by Henry Murchison; in fact, it was made after Amanda’s death, and Abraham appears to have bought this lot for Henry Murchison, just as he liad bought the first lot for Amanda, and he was evidently holding both deeds as collateral for all that Henry Murchison owed him.

We think it fairly appears that Henry Murchison assisted in building the house and paid as much as $50 of its cost; but there is a presumption of law that this was a gift from him to his wife, and that presumption is not overcome by the testimony. ‘ Johnson v. Johnson, 115 Ark. 416; Mayers v. Lark, 113 Ark. 207; Hubbard v. McMahon, 117 Ark. 563; Hall v. Cox, 104 Ark. 303; Jones v. Jones, 118 Ark. 146.

It may be true that Henry Murchison paid, after his wif.e’s death, some balance of purchase money to Abraham, although that fact does not clearly appear; but, if so, the same presumption of a. gift would apply to that payment.

It is true that Henry Murchison made a will and devised the land to his second wife, thereby disinheriting his son Olando, one of the appellants here; but this will was made long after Amanda’s death and after her interest in the lot, whatever it is, had vested, and nothing that he subsequently did could change that interest.

We conclude therefore that a resulting trust should be declared in favor of Amanda Murchison, which inures, of course, to the benefit of these appellants, her sole heirs-at-law; and the cause will be remanded, with directions to the lower court to enter a decree according with this direction. The court will also state an account as to the rents collected and taxes paid and repairs made, and additional testimony may be taken on those questions, if the parties are so advised.


text:
    Jordan v. Hargis.
    Opinion delivered January 8, 1923.
    1. Appeal and error — conclusiveness of verdict.- — An issue of fact submitted to the jury under concededly correct instructions need not be considered on appeal.
    2. Lis pendens — tenant taking possession under defendant in foreclosure suit. — A tenant going into- possession of land under a defendant in pending mortgage foreclosure proceedings, without actual notice of such proceedings and in the absence of constructive notice thereof, as required by Crawford & Moses’ Dig.,- §§ .6979-6984, is entitled to hold the land under his rental contract.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Starbird S Starbird, for appellant.
    The defendant in foreclosure had been summoned, and the pendente lite was notice to all the world. No notice to the subsequent tenants of the defendant in foreclosure was necessary. They were in court and bound by the proceedings. 9 Enc. PI. and Pi\ 339; 84 Ark. 214; 57 Ark. 229; 31 Ark. 491. Crops growing on mortgaged land at the time of the sale (and a fortiori under a lease pendente lite) belong to the purchaser at the sale. 27 Cye. 729-30; 8 A. & E. Ency. 307. See also 21 Ark. 130.

      J. E. London, for appellee.
    A verdict will be upheld if there is evidence legally sufficient to support it. 51 Ark. 467. Where there is a conflict in the testimony, the Supreme Court will not disturb the verdict. 23 Ark. 308; lb. 32; 13 Ark. 72; 12 Ark. 43; 46 Ark. 542. The damages fixed by the jury should not be disturbed. 73 Ark. 377; 75 Ark. Ill; 67 Ark. 531; 65 Ark. 116; 67 .Ark. 433.
   Smith, J.

About January 1, 1921, appellees rented certain land from J. H. McLain for the year 1921, and entered into possession thereof. The land so rented was a part of a tract of land owned by McLain, which .was described in a decree rendered against McLain foreclosing a mortgage which he had executed on the land. McLain was in possession of the land at the time of making his contract with appellees. The decree of foreclosure was rendered at the November, 1920, term of the Crawford Chancery Court, and a sale was had thereunder by the commissioner on December 10, 1920. This sale was confirmed at the May, 1921, term of the court, at which time a writ of possession issued, under which appellees were ejected. Appellees were never made parties to the foreclosure proceedings, and they testified that they offered to attorn to the purchaser, but he demanded possession of the land.

After being ejected, as-stated, appellees were out of possession for several days, when they reentered and proceeded with the cultivation of the crops. Appellees sued and recovered judgment to compensate the alleged wrongful ejection, and this appeal is from that judgment. There is a controversy about the condition under which appellees reentered, it being the contention of appellant that the right of reentry was given in settlement of any claim of' damages for the eviction; but that issue was' submitted to the jury under instructions conceded to be correct, and need not be considered.

The question for decision is whether the court erred in giving instructions numbered 3, 4 and 5 at the request of appellees, and in refusing to give instructions numbered 1, 2, 3 and 4 requested by appellant.

The law, as announced by the instructions given, was that, if appellees had rented the land in good faith, they were entitled to hold it for the year, even though the rental contract was made after the decree of foreclosure and the sale thereunder. The instructions refused announced the converse of the proposition stated, and declared the law to be that “a person going into possession of land under the defendant in a foreclosure, after judgment and sale of the land, is in possession without right and without title, and if you find the plaintiffs’ only right to possession of the land in controversy was that they rented the same from J. H. McLain after judgment and sale of the land by the chancery court, in foreclosure proceedings, to the defendant, and they were evicted by the sheriff under' order of the chancery court, and no appeal was taken from said order, then you will find for the defendant.” The other instructions refused amplified the proposition contained in' the instruction quoted.

It will be observed that this case does not involve the rents for the year 1921, but is a suit for damages for the alleged wrongful eviction of the tenants of the mortgagor.

In stating the issues and the question to be decided on this appeal, appellant says that the theory of the court below was that, even though the plaintiffs rented from a defendant in a foreclosure suit after a decree of sale and a sale thereunder, but before confirmation, and so rented in good faith, they were entitled to hold the land for the year covered by the rental contract; whereas appellant contends the question of good faith cuts no figure, for the reason that, the mortgagor having been duly summoned, the pending case was notice to all persons who dealt with the mortgagor concerning ihe subject-matter of the litigation, and that they were bound. by the provisions of the decree.

Appellant cites cases decided by this court which support his contention; but they were rendered prior to the enactment of the lis pendens statute passed in 1903, and which is found at sections 6979-6984, C. & M. Digest.

Construing this statute in the case of Hudgins v. Schultice, 118 Ark. 144, we said: “It was evidently the purpose of the statute to abrogate the lis pendens rule, since it requires the filing with the recorder of deeds in the county in which the property is situated [of] a.notice of the pendency of any suit at law or in equity affecting the title or any lien on real estate, to render the filing of such suit constructive notice to a bona fide purchaser or mortgagee of any such real estate. Section 5149, Kirby’s Digest. Before its passage all such purchasers of real estate were affected by constructive notice of suits commenced affecting the title or a lien thereon and con-" eluded by the decree against the vendor, and necessarily bound to investigate the records of all courts in which suits could be brought that would affect such title, in order to ascertain the condition of the title to any real property' purchased. Now the would-be purchaser or mortgagee .goes to the recorder’s office, where all the instruments of title thereto are necessarily found; and if no notice of a suit pending is on file with the recorder, he is not affected with constructive notice of any such suit, and is only bound by actual notice thereof.” This construction is in harmony with the following cases, which also construe that statute: Steele v. Robertson, 75 Ark. 231; Reaves v. Coffman, 87 Ark. 60; Jennings v. Bouldin, 98 Ark. 105; Henry Wrape Co. v. Cox, 122 Ark. 445; Jones v. Ainell, 123 Ark. 532; Zeigler v. Daniel, 128 Ark. 403; Cramer v. Remmel, 132 Ark. 158.

In Wiltsie on Mortgage Foreclosure (3d ed.), sec. 177, it is said: “Every tenant who takes a lease from the o'wner of the equity of redemption in mortgaged premises, subsequent to the execution and delivery of the mortgage, is a necessary defendant to a foreclosure. The occupant or person in possession of the premises at the time of the commencement of the foreclosure is also indispensable, no matter how or under what circumstances he came into possession. A tenant or occupant not made a party is not bound by the decree, and, if omitted, he cannot be ejected till the expiration of his tenancy.”

It is true that here appellants entered into possession of the land after the institution of the suit, and they could not therefore have been made parties originally, and they were bound by the result of the foreclosure suit if they had knowledge' thereof, either actually or constructively. But no contention is made that the Us pen-dens ’notice provided by section 6979, C. & M. Digest, was given, and the jury has found that the tenants had no actual notice of the pending suit until after they had moved on the land pursuant to their contract.

The contention is (and the refused instructions presented that contention) that the pendency of the foreclosure suit was itself constructive notice, and that appellees were charged with notice thereof, and could not therefore be heard to say that they had in good faith rented the land for the year 1921 from the mortgagor, who was then in possession. The cases cited are against this view, and the situation of appellees is similar to that of tenants in possession under a lease at the institution of a foreclosure suit who were not made parties thereto; and their rights as such are not foreclosed by the decree against the mortgagor.

It follows, from what we have said, that the court did not err in giving or in refusing to give instructions, and the judgment is therefore affirmed.


text:
    Carter v. Bartholomew Road Improvement District.
    Opinion delivered January 8, 1923.
    1. Interest — unliquidated demand. — In an action against a road improvement district for engineer’s fees, the court properly refused to allow interest where there was no fixed time for the payment of the fees, and the claim therefor was for an unliquidated demand, which required litigation to determine the amount.
    2. Highways — abandonment op improvement — compensation op engineers. — Where a road improvement project was abandoned before the assessment of benefits was made, on account of the excessive cost of the improvement, engineers who did preliminary work under contract for a percentage commission are entitled to recover therefor under the quantum meruit rule.
    ¿5. Highways — claim for engineers’ services. — A claim against a road improvement district of $50 a day for services as contracting engineers held under the evidence to be excessive.
    4. Highways — engineers’ pee. — A contracting engineer’s fee, like that of an attorney, is a single fee, though it may be shared by several persons.
    5. Highways — compensation to state highway engineer. — One could not recover for services rendered by him under contracts made with road improvement districts while he was State Highway Engineer.
    6. Highways — compensation op engineers. — An engineering firm which, together with the State Highway Engineer, contracted to perform the engineering services for a road improvement district, was not disqualified to recover compensation by reason of their connection with the State Highway Engineer, though the contract with the district did not recite the respective interests of the parties in the compensation to be earned by them, there being no collusion between the engineering firm and the State Highway Engineer, and no partnership relation between them.
    Appeal from Drew Chancery Court; E. G. Hammock, Chancellor;
    judgment modified,-.

      Williamson & Williamson and Coleman, Robinson é House, for appellant.

      R. W. Wilson and J. W. Kimbro, for appellee.
   Smith, J.

The Bartholomew Road Improvement District was created by a special act of the 1919 session of the General Assembly, and the commissioners named in the act entered into a contract with H. R. Carter and Pritchett & Hight, as engineers, to build the road. This contract was dated March 17, 1919. Pritchett & Hight were partners, while Carter operated individually; but before bidding’ for the engineering contract they made an agreement whereby they apportioned the work and the compensation therefor between themselves. According to this agreement, Carter was to receive twenty-five per cent, of the compensation and Pritchett & Hight seventy-five per cent., and this suit was brought by them to recover the value of the services rendered by them under their contract with the district. The contract with the improvement district provided for a compensation equal to five per cent, of the actual construction cost of the proposed improvement not exceeding in cost one million dollars, and four per cent, of all such cost in excess of a million dollars, of which fifty per cent, of the entire fee was to be paid when final plans, specifications and estimates of cost were completed, and the balance as the work progressed. The contract was in writing, and was in the form prepared by the State Highway Department and customarily used throughout the State.

The plans, specifications and final estimates of cost were made by the engineers, but the district was abandoned before any assessment of benefits was made, on account of the excessive cost of the improvement, which the engineers estimated at $1,187,560.33. On this basis the engineers claimed the sum of $57,502.41 would have been due under the contract had the district proceeded with the work under the contract; but that was not done, and it is conceded that, under the decisions of this court, the recovery must be on a quantum meruit basis.

As the basis of the claim of the engineers against the improvement district for services performed by them, an itemized statement has been filed. The itemized statement covered the following charges:

Materials used by field party........................$ 693.30
Expense of organizing field party............ 476.50
Salaries paid engineers in the field...... 1,321.00
Office payroll.................................................................. 5,762.05
Cost preparing estimates................................. 750.00
Blue-prints........................................................................ 200.00
Stenographer.................................................................. 150.00
Federal aid paper...................................................... 250.00
Automobile hire ......................................................... 331.14
Railroad fare.................................................................. 130.17
Cas and oil........................................................................ 17.50
Teams...................................................................!................... 247.85
Hotel, etc............................................................................ 302.20
Labor....................................................................................... 430.50
Drainage engineers ..._........................................... 375.00
Total........................................................................$11,437.21

After a careful consideration of the testimony in regard to these items, we have -concluded that they are all proper charges against the district, and -should be allowed. The above items appear to represent actual expenditures by the plaintiff, except the item of $375 for work of drainage engineers; but, as we understand it, this is an item for which the plaintiffs are themselves indebted to the drainage engineers who performed the services charged for. The services were necessary, and the charge appears to be reasonable, and credit will therefore be allowed for it.

In addition to the above items, which we think are proper and therefore allow, the account filed by the plaintiffs included the following items:

Cost of preparing- bridge designs...............$ 2,815.00
Furniture and fixtures ....................................... 780.00
Interest................................................................................. 1,575.25
Prorata overhead charge.................................... 4,426.17
Compensation for plaintiffs for time actually devoted to the Work.................... 8,500.00
Total.................................=............................$18,096.42

In explanation of the item for preparing bridge designs it is shown that the length of the proposed road was 92.5 miles, and that there were more than 200 openings in the road for which bridge designs were necessary, and these were all made by plaintiff Pritchett. This appears to he a proper expense, hut the court below allowed the item, “office payroll, $5,762.05”, and specifically found that, having allowed that item, it would amount to a double allowance to allow the item of $2,815 for bridge designs; and we have concluded the court below was correct in this finding. The plaintiffs submit an office payroll for the months from April 1, 1919, to January 1, 1920, amounting to $5,762.05, and explain that the men to whom that money was paid worked in the office of plaintiffs, and that it was their business to formulate the data furnished by the field forces into plans and specifications for the improvement. It is admitted that the above item is an estimate, as the plaintiffs each had numerous other road districts under contráct at the same time, and those figures were arrived at by prorating this expense, which appears not to have been an improper Way to arrive at the sum to be charged. Carter was the engineer for a number of road districts, and maintained his office in Little Rock; Pritchett & Hight were engineers for other road districts, and maintained a separate officé in Little Rock; in fact, there appears to have been no connection between these engineers except in the construction of the improvement out of which this litigation arose, and it was necessary to estimate and prorate the office expense which should be charged against the defendant district. The testimony is not very clear or satisfactory as to just what work was done by the office force to incur the charge against the district of $5,762.05, if it did not include the formulation of bridge designs and other office work of that character; and we have concluded that the sum allowed by the court for office work was sufficient to include the charge for bridge designs, and the action of the court in disallowing that item is approved.

We think the court properly disallowed the items for furniture and fixtures and pro rata overhead charges, as, in our opinion, other items which were allowed compensated any charge of that kind which might properly be taken into account.

We think the court properly disallowed the item for interest. This charge begins with the commencement of the work in April, 1919, and continued until the filing of this suit. There was no fixed time for the payment of the engineers’ fees, and the amount thereof is an unliquidated demand, and it has required this litigation to determine the amount due plaintiffs. The court below has found that the sum demanded is largely in excess of the amount to which the plaintiffs are entitled, and we concur in that view, although we do find that suffix cien compensation was not allowed by the court below.

Plaintiffs admit they must recover on a quantum meruit basis, and it is on that basis that we are making our finding of the amount the plaintiffs should recover. Bowman Engineering Co. v. Arke, & Mo. Highway Dist., 151 Ark. 47.

The item, “compensation for plaintiffs for time actually devoted to the work $8,500,” was disallowed by the court. This item was arrived at by charging $50 per day for the time that the contracting engineers devoted to the supervision of the work. We think some allowance should be made in this respect, although we are of opinion that the sum demanded is excessive.

As we have said, the plaintiffs each had a number of other districts under contract while they were supervising the work for which they charged the defendant district, and it is a mere estimate on their part that the time spent by them in the supervision of the defendant district was the equivalent of 170 days; but, assuming this estimate to be correct, we think the sum charged is excessive. The engineer’s fee, like that of an attorney, is a single fee, although it may be shared by several persons. Sain v. Bogle, 122 Ark. 14.

We have concluded that an allowance of $2,500 should be made on account of this item; but, in our opinion, any allowance over that sum would be excessive. It will be borne in mind that other engineers did the actual field and office work, and proper allowance therefor has been made. It is true that a period of about two years elapsed from the day of the beginning of the work under plaintiffs’ contract until the enterprise was abandoned, but, as has been said, this was one of a number of enterprises which plaintiffs were supervising, and they only claim to have devoted 170 days to that service.

The items allowed by the court below total $9,202.02, all of which we approve, while the additional items which we approve amount to $4,735.19.

After finding the total sum earned under the contract, the court denied Carter the right to recover his proportionate share, for the reason that at the time of making the contract with the improvement district he was the State Highway Engineer; but the court also found that Pritchett & Hight were under no disqualification, and that it would be inequitable to deny them a recovery of the portion due "them because of Carter's disqualification.

We have recently held that Carter could not recover anything to compensate services rendered by him under contracts which he had made with road improvement districts while he was State Highway Engineer, and the court therefore properly rejected his claim. Carter v. Bradley County Road Imp. Dist., 155 Ark. 288.

We think, however, the court was correct in not rejecting the claim of Pritchett & Hight on that account. So far as they were concerned, the contract was a severable one, although the contract of the plaintiffs with the district did not recite the respective interests of the parties in the compensation to be earned by them. There is no claim of collusion between Pritchett & Hight and Carter, nor did their contract with him make them partners. They did the work jointly for an agreed share of the compensation, but it was not a partnership undertaking between them, and the public policy which forbids any recovery on the part of Carter does not apply to Pritchett & Hight, because they were under no disqualification. Hoge v. George, 200 Pac. 96; St. L. I. M. & S. R. Co. v. Matthews, 64 Ark. 398, 20 R. C. L., p. 1018.

There is an appeal and a cross-appeal, and the decree of the court below is affirmed as to all of the allowances made, and will be modified as indicated in this opinion by allowing the plaintiffs additional credits to which they are entitled, and a decree for three-fourths thereof will be rendered in favor of Pritchett <& Hight.


author: Humphreys, J.

text:
    Neal v. State.
    Opinion delivered January 8, 1923.
    1. Homicide — admissibility op dying declarations. — The admissibility of a dying declaration does not necessarily depend upon a statement of deceased that death was impending, and that he had no hope of recovery, as his knowledge of impending death may be inferred from his manner, conduct or circumstances attending- him at the time the declaration is made.

      2. Homicide — dying declaration. — Where deceased, after being-shot and after he was informed that he was mortally wounded, stated that defendant and two others shot him, such statement was admissible as a dying declaration. ,
    3. Criminal law — objectionable remarks not included in record. — Alleged prejudicial remarks of the prosecuting attorney and rulings of the court thereon which do not appear in the bill of exceptions, are not reviewable on appeal.
    Appeal from Saline Circuit Court; W. II. Evans> Judge;
    affirmed.

      N. A. McDaniel, for appellant.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the Saline Circuit Court for the crime of murder in the first degree for killing W. E. Thompson, and upon trial was convicted of murder in the second degree and adjudged to serve a term in the State Penitentiary as punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court. It is urged that the trial court committed reversible error in admitting the dying declaration of the deceased in evidence. The declaration was made to the attending' physician immediately before being removed from the scene of the tragedy to St. Joseph’s Hospital at Hot Springs, Arkansas, and is as follows: “Everett Neal, George Iiuges and Alf Neal were all present, and cussed him and shot him.” The objection made to the admission of the declaration was that it was made without indication from deceased that death was impending and that he had no hope of recovery. The admissibility of a dying declaration does not necessarily depend upon a statement of a deceased that he is confronted with death and cannot recover. A knowledge of deceased of impending death may be inferred from his manner, conduct, or circumstances surrounding him at the time the declaration is made. If made to appear that a dying declaration was made under a realization of impending death, and if relevant -to 'the issue, then it is admissible as evidence in the case. Rhea v. State, 104 Ark. 162. Tlie record in the instant, case reflects that immediately before W. R. Thompson made the statement he was informed by his physician that he was mortally wounded and in a dying condition, and that just after making the statement Thompson said that he was going to die. Thompson was removed to the hospital, where he died two days after making the statement. These facts and circumstances reveal that the statement was made in contemplation of death, and it-tended to show malice on the part of the accused. The statement was therefore admissible as a dying declaration.

It is also urged that the prosecuting attorney made remarks in his argument which were unwarranted and prejudicial to the rights of appellant. The remarks complained of, and the rulings of the court thereon, do not appear in the bill of exceptions, so that they are not reviewable on appeal. Patrick v. State, 104 Ark. 255; Nardin v. State, 143 Ark. 364.

No error appearing, the judgment is affirmed.


text:
    Mitchell v. State.
    Opinion delivered January 8, 1923.
    1. Intoxicating liquors — statute construed. — Each of the acts denounced in the first four sections of General Acts 1921, No. 324, relating to making mash, keeping a still without registry, setting up a still, or manufacturing a still worm without paying the tax, etc., is a separate offense, and the punishment provided by § 6 of the act is applicable to each of such offenses.
    2. Criminal law — responsiveness of verdict. — In an indictment for setting up a distillery for the purpose of manufacturing distilled spirits for beverage purposes, and for manufacturing such spirits, a verdict finding the accused “guilty of setting up a distillery as charged in the indictment” is responsive.
    3. Criminal law — custody of jury. — Where no objection was made because the sheriff had charge of the jury during its deliberation, the question whether the sheriff was a partisan of the State .will not be considered on appeal.
    4. Criminal law — instruction already given. — The refusal of an instruction on reasonable doubt which was fully covered by instructions given at appellant’s request was not error.
    5. Criminal law — instruction—weight of evidence. — In a prosecution under General Acts 1921, No. 324, for setting up a distillery for manufacturing spirits, wherein it was a disputed question whether accused had a shotgun in his hand for lawful purposes when, arrested, an instruction that the. law presumed that accused’s possession of the gun was for a lawful purpose was properly refused, being on the weight of the evidence.
    6. Intoxicating liquors — instruction.—In a prosecution for setting up a distillery for manufacturing distilled spirits for beverage purposes, and for manufacturing such spirits, an instruction which defined the two crimes was correct; and, if it had .been incorrect, it would not have been prejudicial to accused.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      G. P. George and Frank Strangways, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Ashley County for setting up a distillery for the purpose of manufacturing distilled spirits for beverage purposes, and with operating said distillery unlawfully and feloniously in the manufacture of said spirits. He was subsequently tried, convicted, and adjudged to serve a term of two years in the State Penitentiary as punishment therefor, from which is this appeal.

Appellant was indicted for two separate offenses under act 234 of the General Assembly of 1921. The. punishment fixed by § 6 of said act was imposed upon appellant. It is insisted that the punishment provided by said section is applicable in the event only that an accused is charged and convicted of violating §§ 1, 2, 3, and 4 of said act. The act in question was construed in the recent ease of Clark v. State, 155 Ark. 16, to mean the acts denounced in each of the first four sections constituted separate and complete offenses, and that the punishment provided by § 6 of the acts is applicable to each offense. We think the interpretation placed upon the act in that case correctly reflected the intent of the Legislature.

Appellant also insists that the judgment must be reversed because the verdict is not responsive to either one of the two offenses charged in the indictment. The verdict is as follows: “We, the jury, find the defendant guilty of setting up a distillery as charged in the indictment, and assess his punishment at two years ’ imprisonment in the State Penitentiary.” The indictment contains only one charge, for setting up a distillery, and embraces the purpose for which it was set up, so, when the verdict specified that the distillery was set up by appellant' as charged in the indictment, it was responsive to the charge, and definitely and certainly meant that appellant set up a distillery for the purpose of manufacturing distilled spirits for beverage purposes.

Appellant’s next insistence for reversal is that the court erred in permitting the sheriff, L .W. Dew, a State’s witness, to have charge of the jury during its deliberation on the case. No objection was made or exception saved at the time to the sheriff taking charge of the jury, so it is unnecessary to consider or determine whether the sheriff was a partisan of the State.

Appellant’s next insistence for reversal is based upon the court’s refusal to give his requested instruction No. 3, relative to the application of the doctrine of reasonable doubt. This instruction was fully covered by appellant’s requested instruction No. 2, which was given by the court.

Appellant’s next insistence for reversal is based upon.the court’s refusal to give the following instruction requested by him:

“You are instructed that the defendant had a legal right to be where he was at the time of the arrest, and the law presumes that he was there for a lawful purpose; that he had a legal right to be there armed with a shotgun loaded in any manner, and the law presumes that he had the gun for a lawful purpose. You are therefore instructed that you will indulge the presumption that the defendant was where he was for a lawful purpose, and that he was there for a lawful purpose; this presumption is 'and remains with the defendant until overcome by evidence on the part of the State which convinces your minds to the contrary beyond a reasonable doubt. ’ ’

It was a disputed question of fact, under the record made, whether appellant had the gun in his hand when arrested, for lawful or unlawful purposes. The refused request was a declaration upon the weight of the evidence upon this issue, and was properly refused.

Appellant’s next and last insistence for reversal is that the court erred in giving the State’s requested in-, struction No. 1. This instruction defined two crimes, and did not, as contended by appellant, treat the setting up and operating a distillery as a single crime. If it had told the. jury that setting up and operating a distillery constituted a single crime instead of two offenses, it would have redounded to the benefit rather than to the prejudice of appellant, for then it would have been necessary for the State to prove both a setting up and operation of a distillery in order to obtain a conviction.

No error appearing, the judgment is affirmed.