text:
    Little Rock v. Galloway.
    Opinion delivered February 11, 1924.
    1. Adverse possession — possession op alley. — Adverse possession of an alley in a city by the owner and his grantors for more that the statutory period prior to Acts 1885, p. 92, barred the city and public from asserting any right to open up and use it without condemnation, even if there was an original dedication.
    2. Municipal corporations — prescriptive right to alley. — -Evidence held insufficient to show that the city acquired a right to an alley by prescription.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      A. B. Gypert, for appellant.
    A street or alley is not abandoned by delaying the opening of it, after acceptance and dedication. 88 Ark. 533. The fact that the owners inclosed and obstructed the property did not show adverse possession. 58 Ark. 142.

      Bose, Hemingway, Gantrell & Loughborough, for appellee.
    Testimony that the owners were in possession and claimed title to the full 150-foot lot and expressly denied that there was an alley in the block was admissible and sufficient as showing boundaries and extended possessions. 77 Ark. 309; 101 Ark. 409. Property dedicated to public use may be accepted by the representatives of the public or by use by the public. 127 Ark. 364. The owners did not open tjie public alley, and the public acquired no right in the private way. 47 Ark. 431; 50 Ark. 53: 51 Ark. 270; 58 Ark. 494; 62 Ark. 415; 146 Ark. 300. Where there is a doubt as to the character' of the use, the implication that it was adverse cannot be made. 59 Ark. 41; 105 Me. 529; 75 Atl. 51; 111 S. W. 977; 152 , 111. 561; 38 N. E. 768; 39 N. E. 1024; 72 Wash. 99; 129 Pac. 884; 54 N. E. 850; 2 Metcalf (Ky.) 98; 74 Am. Dec. 400; 169 N. W. 263; 101 Ind. 509; 11 N. B. 484; 241 111. 566; 89 N. E. 653.
   McCulloch, C. J.

Appellee, D. F. S. Galloway, is, and for many years has been, the owner of certain lots, all in the same block, in the city of Little Rock, and he instituted this action in the chancery court of Pulaski County against tlie city of Little Rock, alleging that there is a private alley through the middle of said block, that the alley is not public, and has never been dedicated to public use, but that the city claims that the alley is public, and asserts the right to throw it open for public use. The city answered, denying that the alley through the block in question is private, and alleging that, on the contrary, the alley in question was dedicated to the public by being shown on tlie recorded plat and lots sold with reference to the plat, and also that the public had obtained the prescriptive right to use the allejr by reason of long and continued usage for more than the statutory period of limitation. The city therefore insisted on its asserted right to keep the alley open to the public. On the trial of the cause there was a decree in favor of appellee, and the city has appealed.

The lots owned by appellee áre situated in block 7, according to the plat of the city of Little Rock, and the block is. bounded on the west by Main Street, on the east by Scott, on the north by Sixth, and on the south by Seventh. Appellee owns the east half of the block, being-six lots, numbered 7 to 12, inclusive, fronting on Scott Street, and lots 1 and 2, fronting on Main Street. These lots are next to Sixth Street, and the next two lots, which are numbered1 3 and 4, are owned by the Fulk estate. George "W. Donaghey owns the other two lots facing on Main Street, numbered 5 and 6. All of the lots fronting on Main Street are built up with business buildings, and there is a business building fronting south on Seventh Street, on the lot owned by appellee at the corner of Seventh and Scott. The other portions of the lots owned by appellee, fronting on Scott Street, have been built np as residence property. There is now an alleyway running north and south through the center of the block, and the controversy in the case is' whether or not this is a public or private alley.

It is the contention of the city that the alleyway along the route in question was dedicated to the public use by the filing of a plat in the early days of the city, showing an alley at that- place, and by a ratification of the plat under a covenant executed by plaintiff’s remote grantor, Roswell Beebe. The contention is that Beebe, by his covenant, executed at the time he received a patent from the United States, ratified the original dedication, and is bound by it under the law announced by this court in the case of Beebe v. Little Rock, 68 Ark. 39.

It is the contention of appellee, however, that there was no dedication by appellee’s predecessors in title, for the reason that block 7 was not within the boundaries described in Beebe’s covenant, and that the facts of this case do not fall within the decision in the case cited above. It is also contended by appellee that, even if there had been a formal dedication, the right of the city and of the public to use the alley has been barred by actual adverse possession for more than the statutory period of limitations.

We deem it unnecessary to discuss the question of original dedication, for it appears very clearly from the testimony, which is practically undisputed, that appellee and the other owners of lots in block 7 have obtained title to the alley in question by adverse possession of their respective grantors for more than seven years, and that the city and the public in general are barred by the statute of limitations from asserting the right to open up and use the alley.

Under the statute now in force, limitations do not run against the right of a city to open up a street or alley acquired by dedication or prescription. Crawford & Moses’ Digest, § 7570. The first statute exempting cities from the statute of limitation as to streets and other public places applied only to cities of the first class, and was approved March 21, 1885. Acts 1885, p. 92. The enactment of the statute was doubtless prompted by the decision of this court in Fort Smith v. McKibbin, 41 Ark. 35, where it was decided that a city of the first class was barred by adverse possession for the period of limitations from opening streets and alleys. That statute, however, acted prospectively, and did not affect the title completely acquired by adverse possession before the enactment of the statute. The evidence in the case shows that there was an actual adverse occupancy by appellee’s predecessors in the title for more than seven years prior to the statute referred to above.

Appellee deraigns a clear title to his lots in block 7 to a patent issued by the United States to Roswell Beebe, on September 25, 1839. There were numerous witnesses introduced, whose testimony showed the condition of the property for a great many years prior to the enactment of the statute referred to above — one of the witnesses was conversant with, its condition as far back as the year 1865. In those days the two lots now known as the Donaghey lots were owned by Mrs. Schader, and the two lots fronting on Main Street, in the west half of block 7, were owned by W. B. .Wait. Mrs. Schader’s dwelling-house was situated on the two lots owned1 by her, and she resided there. Her son, C. H. Schader, testified that his recollection ran back to 1865, when he was a small boy, and lived at the place with his mother. All of the lots in the block were 150 feet deep, and there was no alley between them. There was a fence built entirely through the block on the line between the lots facing on Main Street and those facing on Scott Street, which was along the center of the alley as it now exists. Mr. Schader testified that the fence was an old one at the time he first remembered it, in the year 1865, and was built solid of boards. Appellee’s ancestor, Miss Elizabeth Shall, who devised the property to appellee, built a residence on the lots fronting on Scott Street, about the year 1878, and occupied it until she died. There was another small building on the lot at the corner of Seventh and Scott Streets, which was rented to tenants by the owner; and there was another building on the Shall property, facing on Seventh Street, which was situated within a few inches of the division fence, and occupied a part of what is now the alley. The lots facing on Scott Street were fenced all round. Mrs. Schader also had a small building on the back part of her lot, near the division fence, and there were trees of considerable size along the division fence, in the center of what is now the alley. There was a lumber-yard on the Shall property, at the northeast corner, and this was also fenced in. The other lots facing on Main Street were covered by cheap business buildings. This condition existed until the year 1903, when Judge F. M. Fulk, who had purchased from W. B. Wait the two lots in the middle of the west half of the block, erected a building, which was known as the Jones House Furnishing Building, and which was the full width of the two lots and 140 feet deep. This left a space of ten feet between the rear end of the Fulk building and the center of the alley. There was no alley there at the time, and the occupant of that building secured a written agreement from Miss Shall, the then owner of the other property, permitting the private use of the space from the alley of the building out to the street. Mr. 'Claudius Jones, the president of the Jones House Furnishing Company, testified that there was a written agreement permitting him to use the space as ingress and egress for private purposes, and that it expressly stipulated that it was not to be used 'by any one else. Conspicuous signs were put up at the entrance of the way, showing that it was a private "alley, and a portion of the time the space was closed by a gate and was not used by the public at all. In the year 1906 Mr. Donaghey bought the two Schader lots and erected a business building thereon, the full width of the two lots and 140 feet deep, leaving* a space of ten feet for an alley, the same as was done in regard to the Fulk property. At that time the old building on the rear of the Shall lot, facing on Seventh Street, was still standing, and Mr. Donaghey testified that it appeared to have been there thirty-five or forty years. This is the building that extended over to the fence, as before stated.

In the year 1908 Miss Shall caused' to be erected a business building, fronting on Seventh Street, on the rear of her lots in the east half of the block, at the location of the old building referred to, which was then torn down. These buildings left a space of ten feet for an alley, which made the space between that building and the Donaghey building twenty feet. There was then a building owned by Miss Shall on lots 1 and 2, which ran back 140 feet, and left a space of ten feet. The alley was thus thrown open for private use entirely through the block, and it was not of a uniform width of twenty feet, for the reason that a brick stable on Miss Shall’s home lot extended a part of the way out into the alley. All the witnesses testified that the alley was a private one, and that at each entrance there was continuously maintained a conspicuous sign showing that it was a private alley. The testimony is undisputed that these signs were maintained, that the alley was not used by any one except occupants, of the buildings, and that it was not used at all for any public purpose, such as the laying of water mains.

All of this evidence establishes indisputably that the locus in quo was adversely occupied by the owners for more than seven years prior to the enactment of the statute exempting the city from the operation of the statute of limitations. Even if there had been a prior dedication, the adverse occupancy constituted a complete investiture of title under the statute of limitations. The statute enacted in 1885, supra, did not and could not operate as a divestiture of the title thus acquired. This evidence also establishes the fact that the public acquired no prescriptive right after the fence was torn away and the alley opened, about 1903. It was opened as a private way and' maintained solely as such, with conspicuous notices to the public that it was not a public alley, that it was only a private way. The undisputed evidence is that the city never attempted, during all the intervening years, to exercise any authority over the alley. The city engineers whose terms of office covered the period in question testified that there were no records in the engineer’s office showing that it was a public alley, and witnesses testified that there was never any permission' applied for at the engineer’s office, when excavation was done in the alley, for any purpose. If there was ever any use of the alley at all by the public, it was of a fitful nature, and was clearly permissive, and was not sufficient to amount to a prescriptive right. Howard v. State, 47 Ark. 431; Jones v. Phillips, 59 Ark. 35. The city has the power, of course, to open the alley at any time, as a public way, by proper condemnation proceedings, but it has not seen fit to do so, and the alley is not a public one now.

The decree of the chancellor was therefore correct, and the same is affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Washington County v. Davis.
    Opinion delivered February 11, 1924.
    1. Clerks of courts — compensation.—Although the office of circuit clerk is created by the Constitution, the Legislature has power to fix the amount of compensation, within constitutional limitations, to be paid either by fees or salary.
    2. Clerks of courts — extra compensation — constitutional limit. • — An extra allowance made by the Legislature to a clerk was not unconstitutional where it, added to his salary, did not exceed $5,000 per annum, the limit fixed by Const., art. 19 § 23.
    3. ’ Clerks of courts — construction of statute. — Under the rule that the word “may” is construed to mean “shall” whenever the rights of the public or third persons depend on the exercise of the power or the performance of the duty to which it refers, Special Acts 1921, p. Ill, § 2, providing that the county court “may” refund to the circuit clerk of a certain county one-half of the fees received by him for oil leases, is mandatory.
    4. Evidence — judicial notice. — Judicial notice is taken that Washington County is one of the largest counties in the State.
    5. Statutes — construction of “may.” — It is a maxim of the law that where a statute directs the doing of a thing for the sake of justice, the word “may” means “shall.”
    6. Statutes — construction of power given to officers. — Where power is given to public officers for the benefit of individuals, the language used, though permissive in form, is in fact peremptory.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Nance & Sea/mster, for appellant.
    To construe the act to be mandatory, and hold that the word “may” means “shall” constitutes an invasion of the jurisdiction of the county court and is in conflict with § 28, art. 7, of the Constitution. 114 Ark. 278; 25 L. R. A. 770.

      J. V. Walker, for appellee.
    The word “may” means “shall” when used in an act whenever third persons or the public have an interest in having something done or have a claim ele jure that the power shall be exercised. 102 Tex. Rep. 304; 5 Ark. 82. 1 L, R. A. (N. S.) 656; 76 Am- Dec. 736. See also 68 Tex. 468; 95 Tex. 268; 94 Tex. 62; 9 Md. 174, 66 Am. Dec. 326; 4 Wall. 435, 18 L. ed. 419; 28 Ala. 28; 17 Ala. 527; 95 N. C. 68; 105 Mo. App. 98; 95 S. W. 98; 7 Fla. 13; 24 Sou. 589; 2 Sou. 400; 154 Mo. App. 540; 55 Wash. 1; 136 Iowa 573; 234 111. 583. Arkansas decisions are in accord with the above. See 77 Ark. 412; 85 Ark. 232. Where an office is created by the Constitution, but the compensation is left to the discretion of the Legislature, it may be increased or diminished so as to affect the incumbent. 40 Ark. 100.
   Hart, J.

J. L. Davis filed a claim in the county court against Washington County for $1,200, which he claims to be due him as extra compensation for official services rendered as circuit clerk of Washington County. His claim for compensation is based upon § 2 of act 83 of the Acts of 1921, which is as follows:

“Section 2. That the county court of Washington County may refund to J. L. Davis, late clerk of the circuit court of Washington County and recorder, twelve hundred dollars, one-half of the amount received by him and paid into the county treasury for recording I, 634 oil and gas leases during his term of office, less the county tax.” Special Acts of Arkansas 1921, p. 111.

Tliis act was amendatory of act 259 of the Acts of 1919, which fixed the salary of the circuit clerk at the sum of $3,420 per annum, together with the fees and allowances made to him as commissioner in chancery. Special Acts of 1919, p. 399.

The county court refused to make the allowance to J. L. Davis, as provided by the section of the act quoted above, and Davis duly prosecuted an appeal to the circuit court. The circuit court found that Washington County was indebted to J. L. Davis in the sum of $1,200, under the act of the Legislature above referred to, and judgment was rendered accordingly.

To reverse that judgment, Washington County has duly prosecuted an appeal to this court.

Although the office of circuit clerk is created by the Constitution, the Legislature has full power to fix the amount of compensation, of course observing all constitutional limitations, and it makes no difference whether the compensation is by fees or salary. Humphrey v. Sadler, 40 Ark. 100; Powell v. Durden, 61 Ark. 21, and Buga v. Sebastian County, 64 Ark. 515.

It does not appear from the record that the extra allowance to the circuit clerk, under the act in question, together with the salary already allowed him, made his net profits more than $5.000 uer annum, and was therefore violative of ^ 23, art. 19, of the Constitution, as construed in Griffin v. Rhoton, 85 Ark. 89, and Williams v. Buchanan, 86 Ark. 259.

Tn this connection it may be also stated that the bill under consideration was passed by two-thirds of the members elected to each branch of the General Assembly. Therefore we need not decide whether the act under consideration falls within the provisions of art. 5, § 27, of the Constitution, which provides that no extra compensation shall be made to any officer after the services shall -have been rendered, unless such compensation be allowed by a bill passed by two-thirds of the members elected to each branch of the General Assembly. There is no constitutional limitation against the passage of the act under consideration, and we hold it to be a valid act.

We do not think that the case of Board of Education of Marion Township v. State (Ohio), 25 L. R. A. 770, has any application to the facts in the case at bar. There the treasurer of the school funds of Marion Township, Ohio, lost a school warrant, which he paid to the person entitled to it, and was'charged with the amount thereof in his settlement with the county auditor. Subsequently he found the warrant, and asked that the amount thereof be refunded to him. The board of education refused to do so, on the grounds that it had no power to go behind its previous settlements. Whereupon he secured the Legislature tó pass an act allowing him the amount of said lost warrant and directing’ the board of education to levy taxes for the payment thereof. The court held that, because there was a dispute about the facts out of which the claim grew, between the township treasurer and the board of education, the contention fell within the province of the court under the distribution of governmental powers prescribed by the Constitution.

Here there was no contention between the parties as to the facts. Davis had made no claim in the county court or elsewhere that he was due extra compensation. The Legislature simply allowed J. L. Davis, as clerk of the circuit court, extra compensation for services which he had already rendered, and this it had the right to do, for the reasons stated above.

It is next contended that the allowance of the extra compensation, by the terms of the act, was in the discretion of the county court. In making this contention, reliance is placed by the county upon the language of § 2 of the act quoted above, which provides that the county court may refund to J. L. Davis $1,200. We think that the act is mandatory, notwithstanding the use of the word “may” instead of “shall.”

In Pirani v. Barden, 5 Ark. 81, Spratley v. La. & Ark. Ry. Co., 77 Ark. 412, and C. R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232, this court has recognized that the word “may” is often interpreted to mean “shall.” The general rule of construction is that the word “may” is construed to mean “shall” whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to which it refers. Wheeler v. Chicago (Ill.), 76 Am. Dec. 736; Smalley v. Paine, 102 Tex. 304, 116 S. W. 38; People v. Board of Supervisors, 68 N. Y. 114; People v. Board of Supervisors, 51 N. Y. 401, and Supervisors v. United States, 4 Wall. (U. S.) 435.

All of these cases, and many more of like import, recognize that the word “may” is constantly used in statutes without intending that it shall be taken literally, and that, in its construction, the object evidently designed to be reached limits and controls the literal import of the word. They recognize that, in determining whether “may,” as used in acts like the present one, is merely permissive or is mandatory, not only the language of the act but the circumstances surrounding its passage and the object had in view must be considered.

Davis, as circuit clerk, had a claim, based upon natural justice and equity, that a part of the fees derived from the recording of gas and oil leases during his term of office, and paid by him into the county treasury, should be refunded. This is shown by the surrounding circumstances. The court will take judicial notice that Washington County is one of the largest counties in the State. The salary of the circuit clerk, fixed by the Legislature of 1921 and. by the act of 1919 which it amended, was $3,420 per annum.

Section one of the act under consideration gives the circuit clerk, in addition to a salary of $3,420 per annum, all fees for recording oil and gas leases. In § 2 of the same act it was provided that the county court may refund to Davis $1,200, which is one-half of the amount received by him and paid into the county treasury for recording oil and gas leases. The Legislature recognized that Davis had a moral claim against the county for his services, and intended to provide for its allowance like other claims against • the county. The purpose of the act, as well as natural justice to Davis, requires that it should be construed as mandatory. It is a maxim of the law that, where a statute directs the doing of a thing for the sake of justice, the word “may” means “shall.” Where the power is given to public officers for the benefit of an individual, the language used, though permissive in form, is in fact peremptory. The substance of the holding in the case above cited is that what public officers are required to do for a third person the law requires shall be done.

It follows that the judgment of the circuit court is correct, and will be affirmed.


text:
    Rosslot v. State.
    Opinion delivered February 11, 1924.
    1. Intoxicating liquors — stillworm defined. — The word “still-worm” means the tube or coil used for condensation of the vapor which is passed through it from the boiling mash for the purpose of being distilled into whiskey.
    2. Intoxicating liquors — registration of stillworm — burden of proof. — In a prosecution for unlawfully possessing a stillworm, the burden was on the defendant to show that a stillworm found in his possession was registered.

      3. Indictment and information — surplusage.—In a prosecution for having an unregistered stillworm in his possession, an indictment was not rendered invalid by charging that the stillworm was to be used in the manufacture of distilled spirits; such allegation being surplusage, since the statute makes it an offense -to keep an unregistered stillworm, regardless of intention.
    4. Criminal law — repetition of instructions. — The trial court was not required to multiply instructions on. the same point.
    5. Criminal law — argument of prosecuting attorney. — Where the court instructed the jury as to reasonable doubt, remarks of the prosecuting attorney as to inferences to be drawn from defendant’s attorney’s harping on reasonable doubt, without stating any fact not in the record, held not prejudicial to defendant.
    6. Criminal law — argument of counsel. — The argument of counsel1 is largely within the discretion of the trial court.
    7. Criminal law — argument of counsel. — In a prosecution for possessing an unregistered stillworm, remarks of the prosecuting attorney on matters which were in evidence as to the duty of the jury to reward -the efforts of the officers in locating the still-worm found in defendant’s possession, and as to their duty as good citizens, held not prejudicial.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    affirmed.

      W. P. Smith and Schoonover & Jackson, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   Hart, J.

Alfred Rosslot prosecutes this appeal to reverse a judgment of conviction against Mm for the crime of unlawfully having in his possession a certain stillworm.

The first assignment of error is that the evidence is not sufficient to have warranted the jury in returning a verdict of guilty.

Two deputy sheriffs were the witnesses for the State. According to their testimony, in March, 1923, in company with two other persons, they went out on Cache River to hunt for a still which they had been told was out there. While watching along the river bank, they heard the paddling of a boat about a hundred yards out in the river from them. They called to the parties in the boat to come to the bank, and they did so. They found three or four barrels floating behind the boat. The parties had a stillworm in the boat, about a half bushel of meal and chops, about fifty pounds of sugar, and a 30-30 "Winchester rifle. The defendant and a companion were in the boat, and the defendant had charge of it. When arrested, the defendant told the .deputy sheriffs that, while hunting, they ran into a man making whiskey, and that they took possession of his outfit, including the stillworm, and were carrying it to town for the purpose of turning it over to the sheriff. The stillworm which they took from the possession of the defendant and his companion was designed for use in making whiskey. They poured something out of it that smelled like “white mule” whiskey. The boat also had some fruit jars in it. This all happened in the Eastern District of Lawrence County, Arkansas.

The evidence was sufficient to support the verdict. The word stillworm applies to the tube or coil used for the condensation of the vapor which is passed through it from the boiling mash for the purpose of being distilled into whiskey. Hodgkiss v. State, 156 Ark. 340. It was also decided in that case that it is unlawful, under our statute, to have in possession either a stillworm or a still, without registering the same, regardless of the purpose of having them in possession.

The burden was on the defendant to show that the stillworm was registered. Clark v. State, 155 Ark. 16.

, It is true that the indictment in this case charged the defendant with having a stillworm in his possession for the purpose of using it in the manufacture of distilled spirits. The statute makes it an offense for any one to keep an unregistered stillworm in his possession, regardless of his -intention as to its use. But the additional charge, that it was kept" for the purpose of being used in the production of distilled spirits, was mere surplusage, and did not affect the validity of the indictment for keeping an unregistered stillworm. Earl v. State, 155 Ark. 286.

It follows that the evidence for the State was sufficient to support the verdict.

The next assignment ol' error is that the court erred in refusing to instruct the jury, at the request of the defendant, that he would not he guilty if he had the still-worm in his possession for the purpose of turning it over to the officers.

We do not think this assignment of error is well taken. The court instructed the jury, in substance, that, if the defendant, in good-faith, found the stillworm, and, not knowing its owner, was carrying it to the officers, he would not be guilty. This was all that the defendant was entitled to on this point, and the court was not required to multiply or repeat instructions on the same point.

The next assignment of error is that the court erred in allowing the prosecuting attorney, in his closing argument, to make certain prejudicial remarks to the jury. The court had correctly instructed the jury on the question of reasonable doubt, and defendant insists that the court erred in allowing the prosecuting attorney, in his closing argument, to say the following:

“When the jury heard Mr. Smith harping on a reasonable doubt, and when you hear a lawyer doing that, you know that his client is in the grips of guilt, and I submit to you, gentlemen of the jury, that that don’t mean every doubt, it don’t mean any doubt, it don’t mean ■ all doubt. ’ ’

The argument of counsel is largely within the discretion of the trial court, and we can see nothing in the remarks quoted above calculated to prejudice the defendant in the minds of the jury. The prosecuting attorney was not stating to the jury any fact which was not in the record, but was merely expressing, his opinion from facts which had been proved at the trial.

The next remarks objected to are the following:

‘ ‘ I say to you that these officers went out and watched for them, and spent their time and money, and I don’t know how much energy, in trying to locate this contraption that is in this lawsuit. I say to you that when the effort is put forth in trying to do away with such transactions as that, they should be rewarded, because it strikes deep at the citizenship of the land. I say to you, gentlemen of the jury, that you are the judges of this situation; you are jurors who sit impartially upon this case; and when you go out to make up your verdict in this ease, I say, I believe you will give this man a penalty that is commensurate with the crime he has committed.”

We do not think any prejudicial error resulted from these remarks. Two deputy sheriffs had testified that they had gone down on Cache River to look for a still which had been reported to them. They secured two other persons to go with them. It is fairly inferable that this cost .something, and, of course, they spent some time in going and returning. The rest of the argument was merely an admonition to the jury as to what their duties as good citizens required them to do, and remarks of a similar character have frequently been held not to call for a reversal of a judgment of conviction.

We find no reversible error in the record,'and the judgment will be affirmed.


author: Smith, J.

text:
    Peel & Company v. Mooney.
    Opinion delivered February 11, 1924.
    Justice of the peace — appeal bond — liability of sureties. — Where the circuit court, on defendant’s appeal from an order of a justice of the peace dismissing the schedule of defendant claiming property levied on as exempt from execution, affirmed the judgment of the justice of the peace and directed defendant to restore the property levied on or to account for its value, plaintiff was not entitled to summary judgment for the amount of the judgment rendered for him on defendant’s appeal bond, exeeuted under Crawford & Moses’ Dig., § 6531, since the appeal was not from the money judgment of the justice of the peace, but was from the order of a justice allowing the claim of exemptions, and the sureties were liable only for the satisfaction which plaintiff would have obtained, had the bond not been executed and the property then released.
    Appeal from-Craighead Circuit Court, Lake City District; W. W. Bandy, Judge;
    affirmed.

      J. F. Johnston and Gautney & Dudley, for appellant.
    The court erred in refusing- to render judgment against the sureties on the appeal bond. C. & M. Digest, § 6531.

      Appellee pro se.

   Smith, J.

Appellant recovered judgment in the court of a justice of the peace for $86.42 against appellee Mooney, on January 20,1923. An execution was issued on the judgment, and, on February 17, 1923, Mooney filed a schedule, claiming the property levied on as exempt. A motion to dismiss the schedule, as having been filed without notice, was made and sustained. Thereupon Mooney filed an affidavit for appeal, and executed a bond conditioned as follows: “We, the undersigned, Jim Mooney and......................................................, acknowledge ourselves indebted to Hal H. Peel & Company in the sum of $200, to be void upon this condition: whereas Hal H. Peel & Company has obtained judgment against said Jim Mooney, in the sum of $86.42, before the above named justice of the peace, and whereas defendant filed his schedule of exemptions, which was by the court refused, and from which order defendant has appealed; now, if said appellant shall prosecute his appeal with due diligence to a decision, and if, upon such appeal, the order of the court rejecting said schedule he affirmed, or if his appeal be dismissed, he shall pay the judgment of the justice of the peace, together with the costs of the appeal, then this bond shall be null and void, otherwise to remain in full force and effect.” Signed by John B. Walker and E. M. Stotts as sureties.

The cause came on for trial on the appeal in the circuit court, and the defendant made default, whereupon the court, on motion of the plaintiff, affirmed the judgment of the justice of the peace, but denied the plaintiff’s motion for judgment against the sureties on the bond, and the plaintiff has appealed.

Plaintiff, the appellant here, insists that the judgment should have been rendered against the sureties, under the authority of § 6531, C. & M. Digest, which reads as follows: “Section 6531. In all cases of appeal from a justice of the peace, if the judgment of the justice be affirmed, ■ or if, on trial anew in the circuit court, the judgment be against the appellant, such judgment shall be rendered against him and his securities in the appeal bond.”

In the case of Fultz v. Castleberry, 81 Ark. 271, a judgment was recovered against Castleberry in the court of a justice of the peace, and a bale of cotton was levied on, which he undertook to claim as exempt from the levy of the execution. His claim of exemptions was not allowed by the justice of the peace, and he appealed from this order to the circuit court, but gave no appeal bond, and the cotton was sold under the execution. The excess which the cotton brought over the judgment was tendered Castleberry, but he declined to accept it, and, after the circuit court had sustained his claim to the cotton as exempt, which it did upon final hearing, he sued the officer for the value of the cotton. The court held that Castleberry could only hold the officer for the sum in excess of the judgment which the cotton brought, as he had given no supersedeas bond, and that only the plaintiff in the judgment was liable for the value of the cotton. In holding this the court pointed out that the statute regulating appeals from judgments of justices of the peace aioplied, and that the exemption laws permitted the debtor to execute a supersedeas bond in such cases (Kirby’s Digest, § 3908), and that Castleberry could not stay an execution in such cases without giving the bond ■which the statute requires one to give who wishes to stay the enforcement of a justice’s judgment pending the appeal. Section 5551, C. & M. Digest.

There was statutory authority therefore for the execution of the bond set out above, and the sureties thereon are liable according to its terms. But it will be observed that the bond was not conditioned to perform or to pay the judgment of the justice. It was sought only by the appeal to perfect the claim of exemptions, and, as the claim of exemptions was not allowed, the sureties have become liable to the plaintiff in the judgment.

But for what are they liable? The purpose and effect of the bond was to secure the release of the property which the constable had taken into custody under the execution. The bond took the place, of the property, and it is for the property, or its value, that they became liable upon the rendition of the judgment of the circuit court disallowing the claim of exemptions. There appears to have been no authority for the circuit court to render judgment for the original debt, as no appeal had been prosecuted from that judgment. But the judgment of the circuit court fixed the liability of the sureties on the bond, and that liability is to restore the property or to account for its value. Of course, this liability to the plaintiff cannot exceed the -amount of the judgment, whatever the value of the released property may have been, as the plaintiff is entitled to nothing more than the sátisfaction of the judgment.

As was said'in the -case -cited, the judgment debtor might have appealed from the order of the justice refusing to allow his claim of exemptions without executing the bond, and, if this claim had been allowed by the circuit court, on appeal, he could have held the plaintiff in the judgment liable for the value of the property wrongfully sold. Fultz v Castleberry, supra. But he had the right to give bond, which operated to release the property from the officer’s levy, and this is what the defendant in the instant case did, and the effect of this bond, under the circumstances -of the case, is to make the sureties liable for the property so released, or its value, not exceeding the amount of the judgment.

Plaintiff is not entitled, however, to a summary judgment against these sureties, for the reason that the statute does not so provide. In Cook v. Cramer Cotton Co., 155 Ark. 549, the facts were as follows: The cotton company recovered judgment against Matkin in the circuit court, and an appeal was prayed to the Supreme Court, and a supersedeas bond, as provided by statute, was executed, with Cook as surety. The appeal was never perfected, and the plaintiff cotton company caused notice to be served on the sureties that a motion for summary judgment against them would be made at the next term of the court. Pursuant to this notice, judgment was rendered as prayed, and an appeal was prosecuted by the sureties to this court. We reversed this judgment, and, in doing so, said: “Proceedings, for summary judgment are in derogation of the common law, and such judgments can be rendered in those cases only in which express authority therefor-is found in the statute, and, as we have said, we know of no statute authorizing the judgment rendered herein. (Citing cases).” We there said that, if the plaintiffs had perfected an appeal but had 'thereafter failed to prosecute it, judgment’ could have been rendered here on the supersedeas bond for the failure to prosecute the appeal, but, as this was not done, the plaintiffs’ only remedy was an ordinary suit at law on the bond.

So here, if an appeal had been prosecuted to the circuit court from the judgment of the justice for debt, the circuit court should and would have rendered judgment against the sureties on the bond upon dismissing the appeal; but the appeal was from the order of the justice disallowing the claim of exemptions, and the sureties are liable only for the satisfaction which the plaintiff would have obtained, had the bond not been executed and the property thus released. This satisfaction cannot be had summarily, for the statute has not so provided, and can only be obtained by an ordinary suit at law on the bond.

As plaintiff was not entitled to the judgment prayed for in the circuit court, the judgment of that court must he affirmed, and it is so ordered.


text:
    Ferguson Lumber Company v. Scriber.
    Opinion delivered February 11, 1924.
    1. Mechanics’ lien — priority over mortgage. — Where the owner of a 50-foot lot contracted for materials for improving a barn on the south 22 feet, the materialman filed an affidavit claiming a lien on the north 22 feet, which was unimproved, the misdescription was not misleading, and did not invalidate the lien.
    2. Mortgages — priority of mechanics’ lien. — Under Crawford & Moses’ Dig., § 6911, providing that a mechanic’s or materialman’s lien relates back to the commencement of the building or improvement, held that where plaintiff, under contract to furnish materials for a building, began to furnish such materials on March 24, its lien took precedence over a mortgage filed for record on March 26, though some of the materials were furnished 'later.
    3. Mechanics’ liens — time of filing. — A lien for materials furnished for a building was filed within time under Crawford & Moses’ Dig., § 6922, where the last item of materials was furnished within 90 days of the date of filing the sworn account with the circuit clerk.
    4. Mechanics’ liens — time of filing. — The test to determine whether the last item debited for materials or labor is to be included in a lien for materials furnished for a building is whether it is embraced in the contract to furnish the materials for which the lien is claimed.
    Appeal from Benton Chancery Court; B<en F. McMahan, Chancellor;
    reversed.

      Duty & Duty, for appellant.
    Appellant was entitled to a lien on the entire lot on which the building was located. C. & M. Digest, 6906. The description of the land in the affidavit was sufficient.' 90 Ark 340. A substantial compliance with the statute is sufficient. 119 Ark 43; 56 Ark. 544; 90 Ark. 108; 107 Ark. 245; 116 Ark. 44; 124 Ky. 251; 14 Ann. Cas. 688; 24 Pa. St, 507; 14 Wyo. 455; 96 Ala. 346; 13 Ind. App. 432; 77 Neb. 833. Tbe lien when filed dates back to tbe time of furnishing the material. 32 Ark. 59; 56 Ark. 640; 71 Ark. 35.

      Sulims & Ivie, for appellee.
    The mortgage was filed before any -claim of lien was . filed by appellant and is therefore prior to his claim. 178 S. W. 40'6; 244 S. W. 348. The purchase of a small amount is not sufficient to extend the time for filing the claim for lien. 235 S. W. 416.
   Smith, J.

This is a suit to enforce -a materialman’s lien on a lot in the city of Rogers, Arkansas, which arose on the following facts: On March 15,' 1920, Scriber purchased and received a deed from Hudspeth, conveying the south 22 feet of lot 3, block 12, in the -original town of Rogers, and on March 17, 1920-, he executed a mortgage thereon, which was filed for record March 26, 1920. At the time of the execution of the deed from Hudspeth to Scriber, Hudspeth owned the entire lot 3, which was an ordinary town lot 50 by 140 feet, and on April 16, 1920, Huáspeth conveyed to Scriber the remaining- 28 feet of the lot.

On September 22, 1921, Scriber conveyed to Clouston, by warranty deed, 25 feet off the north side of the lot, and by subsequent deeds conveyed the remainder of the lot to Clouston, who himself subsequently conveyed to -Cady the north 28 feet of the lot.

Oil March 24, 1920, Scriber contracted to purchase from the Ferguson Lumber Company lumber and material with which to improve and remodel a galvanized iron barn situated on said lot 3, to be used as a veterinary hospital. These materials were furnished over a period of time from March 24, 1920, to June 22, 1920, the last item being some cement furnished to put around a flue which was leaking, and this item of cement is the only item -on the account which was furnished within ninety days of the time when the claim for a lien was filed with • the clerk of the circuit court.

On September 9, 1920, which was within ninety days of the date of the last item furnished, the lumber company filed with, the clerk of the circuit court a verified account of the articles furnished, as required by § 6922, C. & M. Digest, and a lien was .claimed on the north 22 feet of the lot. On December 6, 1921, the lumber company filed a suit to foreclose the lien against the barn and the lot on which it was located.

It appears that the barn was not located on the north side of the lot, but was, in fact, located on the south side, and the court took the view that, inasmuch as Scriber had acquired title to the respective portions of the lot by separate conveyances, they should be treated as separate lots, and, as the notice described the barn as being on a portion of the lot which was, in fact, vacant, the court held that the land had not been correctly described.

Cady was made party defendant, and it appears that he had actual knowledge of the facts set out above, but he assumed there was no lien on the south part of the lot, because it was not described in the account and demand for a lien filed with the clerk, and the court so found, and refused to decree that the lumber company had a lien on the land on which the barn was located, but did.render judgment against Scriber for the amount sued for, and the lumber company has appealed.

We think the court was in error in holding the description insufficient. It is true Scriber owned only the south 22 feet of the lot when he contracted for the purchase of the materials, but he became the owner of the entire lot, as shown above. The lot was only 50 by 140 feet, and there was no other barn or other building on the north part of it. There appears to be no reasonable doubt that the plaintiff lumber company was attempting to claim a lien on the land on which the building stood. The building appears to have extended from the east end to the west end of the lot, and to have occupied all of the south 22 feet thereof. It would, no doubt, have been better to have described the improvement as being on lot 3, without the unnecessary particularity employed. Sections 6906 and 6908, C. M. Digest. ' But we do not think the mistake made defeated the claim for a lien.

The question of the sufficiency of the description to be employed to perfect the claim of a materialman’s lien has been several times considered by this court, a very recent case being that of Arkmo Lumber Co. v. Cantrell, 159 Ark. 445. There materials had been furnished to repair buildings on a plantation, and the land upon which it was asked that a lien be declared was described as consisting of 1,380 acres in Jefferson County, Arkansas. We held that this description did not describe any particular tract or acre on which the buildings were situated, nor any particular building or buildings upon which the lien was sought to be established. It was held — but not by a unanimous vote — that this description was not sufficient. In the opinion it was said: ‘ ‘ The majority does not mean to say that either the acre of land on which the lien is sought, or the building thereon, must necessarily be described in any particular form. All that is essential is that the acre of land or the building be designated in such language as will afford information concerning the situation of the property to be charged with the lien. Of course, if the building be described so as to properly designate its location, this is sufficient, for the statute itself fixes the quantity of land to be charged.”

The authorities were reviewed in the case of Barnett Bros. v. Wright, 116 Ark. 44, and we there said: “Mr. Phillips, in his work on Mechanics’ Liens (3 ed. § 379), discussing the rules of law established by decisions of court with reference to the essential of a description of property sought to be charged with a mechanic’s lien, says: ‘Among those laid down, and probably the best rule to be adopted, is that if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic’s claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises, so that, by applying it to the land, it can be found and identified. A description that identifies is sufficient, though inaccurate. If the description identifies the property by reference to facts, that is, if it points clearly to a piece of property, and there is only one that will answer the description, it is sufficient.’ ” 0

The description of the land here employed was inaccurate, but it was not misleading. Its defect was that, in attempting to describe the land with exact but unnecessary particularity, a mistake was made, but no one could be, or was, misled by it.. The barn was a large structure, and was the only building on the lot, and no one could have believed that the materialman was claiming a lien on the part of the lot only on which there was no building of any kind into the construction of which his material had gone, and was claiming no lien on the land on which the building- itself stood.

In support of the finding of the court below, it is also insisted that the mortgage is superior to the material-man’s lien, because it was, in fact, filed for record before all the material, or, for that matter, before most, of the material was furnished. But, as we have said, the plaintiff began to furnish the material on the 24th day of March, which was two days before the mortgage was filed for record, and by statute the right to a lien relates back to the commencement of the building- or improvement.

Section 6911, C. & M. Digest, reads as follows: “Section 6911. The lien for work and .materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such buildings, bridges, boats or vessels or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements. ’ ’

The section quoted is identical with § 4408, Mans-' field’s Digest, so far as the point now under consideration is concerned, although that section of Mansfield’s Digest had been several times amended, and that section was construed in the case of Apperson v. Farrell, 56 Ark. 608. A mechanic and. a mortgagee liad liens on the same .land, and the question involved was that of priority. The owner commenced the erection of a mill June 1,1890, and employed a mechanic to perform work on the mill until about October 1, 1890, for all of which he was fully paid, when he quit the job and did no more work until the 19th of February, 1891. The owner executed a mortgage on the property on July 12, 1890, which was duly recorded, and the work for which the mechanic claimed a lien was done, as is stated in the opinion, nearly six months after the mortgage had been filed for record. The court held that the statute gave the mechanic a lien for the wages due him from the time his work commenced, and that his lien was superior to the mortgage.

Under the amended statute, quoted above, the materialman has the same lien as the mechanic, and, as he began to furnish the material before the mortgage was filed for record, his lien is superior to the mortgage, although a portion of the material for which that lien is claimed was furnished subsequently to the filing, of the mortgage. See also White v. Chaffin, 32 Ark. 59.

We are of the opinion also that the date on which the cement was furnished is to be considered in determining whether the account was filed within the time required by § 6922, C. & M. Digest. This section requires -that the lien claimant shall, within ninety days after the work has been done or the materials have been furnished, file with the clerk of 'the circuit court a just and true account of the demand due or owing to him, after allowing all credits. The statute contemplates that the items will bear different dates; in other words, that there will be items of debit and credit, and the requirement of the statute is that, within ninety days of the date of the last item debited, the account shall be filed. Mitchell v. Schulte, 142 Ark. 446; Hill v. Imboden, 146 Ark. 99; Burel v. East Ark. Lbr. Co., 129 Ark. 58; Cunningham v. Kimbro Lbr. Co., 151 Ark. 194.

Was the cement a part of the account? Mr Blackburn testified that he was the carpenter who finished the job, and that Scriber told, bim, when he began work, to get what he needed from the lumber company, whose lumber yard was only a short distance away, and that he just went over there when he needed anything, and that two, three or four days after the job was apparently completed he was notified that a flue leaked, and that he went to the lumber company yard and got the cement to stop the leak. We think this item should be included in the bill for the materials. The amount of the item is not the test; the test is whether the item, large or small, is embraced in the contract to furnish the material for which the lien is claimed, and, as we think the cement should be so included, it follows that the account was filed within the time limited by law.

The decree of the court must therefore be reversed, and the cause will be remanded with directions to declare a lien in appellant’s favor, as prayed for in the complaint.


author: Humphreys, J.

text:
    Climer v. State.
    Opinion delivered February 11, 1924.
    Witnesses — carnal abuse — impeachment of prosecutrix. — In a prosecution for carnally knowing- a female under the age of sixteen, where the State, to corroborate .the prosecutrix, showed that a child was born to her 9 months after the alleged intercourse, it was error to exclude evidence tending to prove that another man had intercourse with her about the time of conception.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    reversed.

      G. G. Carter and Dave Partain, for appellant.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. ‘Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Franklin County, Ozark District, for carnally knowing Vernie Yocum, a female under the age of sixteen years, and adjudged to serve a term of one year in the State Penitentiary as punishment therefor. Prom that judgment he has duly prosecuted an appeal to this court.

The testimony introduced by the State showed that appellant had sexual intercourse with Vernie Yocum, in said district and county, on or about September 1, 1922, and thereafter. In corroboration of the testimony of the prosecutrix to that effect, the State showed that a child was born to her on June 3, 1923.

In order to break down the credibility of the prosecuting witness, appellant offered to prove that, on or about the time of conception, she had sexual intercourse with another man in the depot toilet at Alix. Over the objection and exception of appellant, the court ruled that such testimony was inadmissible. Learned counsel for the State contends that the exception to the ruling of the court was not properly preserved in the motion for a new trial, because no ground set out in the motion was responsive to this testimony. In this contention they are mistaken. The twelfth ground in the motion refers to this testimony and the exception by appellant to the ruling of the court on its inadmissibility. It is as follows:

“12. The court erred in refusing to permit the defendant to prove by the witnesses, J. D. Jackman and J. D. Brown, that, about the first of September, 1922, they saw the prosecuting witness, Vernie Yocum, go with a man into a toilet near the depot at Denning Yards, and stay for a few minutes, and then came out, fastening up their clothes, and that they engaged in sexual intercourse in the toilet.”

This court said, in the case of McDonald v. State, 155 Ark. 151: “That where the State undertakes, on direct examination, as was done here, to corroborate the testimony of the prosecutrix by introducing a child which she testifies was the result of the sexual intercourse with the accused, then testimony introduced by him in rebuttal, tending to prove that another might have been the father of the child, is competent and relevant. The logical tendency of such testimony would be to break down the credibility of the prosecuting witness on an issue which the State had elected to bring forward as material to the cause.”

It was also said by this court, in the case of Rowe v. State, 155 Ark. 419, that: “If the State elects to attempt to corroborate the prosecuting witness by showing that a child was begotten'by illicit intercourse charged in the indictment, then the defendant may show acts of sexual intercourse with other persons, about the time conception took place, for the purpose of rebutting this testimony. The State made that effort here, and the defendant should therefore have been allowed to rebut that testimony by showing that some other person was the father of the child.” Under the rule of evidence announced in the cases cited above, it was error to exclude the testimony offered by appellant, tending to attribute the paternity of the child to another.

On account of the error pointed out the judgment is reversed, and the cause is remanded for a new trial.


author: McCulloch, C. J.

text:
    Witt v. Churchwell.
    Opinion delivered February 18, 1924.
    Vendor and purchaser — estoppel.—Where a vendee of land resold it to others and they paid him therefor, the fact that the vendor, holding notes for the purchase money, subsequently mentioned to some one that the vendee had agreed to give him a mortgage upon another tract of land to secure the purchase money notes, did not estop the vendor from enforcing his lien as against the purchasers of the land, where the vendee died without executing his agreement to give other security.
    Appeal from White Chancery Court; John E. MartineaUj Chancellor;
    affirmed.

      John E. Miller and G. E. Yingling, for appellant.
    This case calls for the application of the doctrine of equitable estoppel. It was not necessary for the appellant to show actual fraud on the part of appellee, or to show acts done by him with the actual intention of deceiving appellant. 2 Pomeroy, Eq. Jur., 4th ed., § 803, pp. 1639-1642; Id., § 805, pp. 1643-1652; 97 Ark. 43; 125 Ark. 146; 131 Ark. 77. Appellee, with full knowledge, placed his father-in-law in a position to commit a fraud upon appellant. 27 Cyc., p. 1237, § 3; 19 R. C. L. 411, § 191. See also 27 Cyc., p. 1225, § H.

      Brunclidge & NeeMy, for appellee.
    The law cited by appellant has no application in this case. There is no contention, neither was there any attempt to prove, that there was any fraudulent design on the part of appellee to procure the purchase of the land by appellant from Pearson; and there was no conduct shown that was intended or calculated to cause appellant to alter Iiis condition, or do any act, to his detriment. 150 Ark. 570.
   McCulloch, C. J.

This is an action instituted by appellee to foreclose the vendor’s lien on a tract of land1 in White County. Appellee owned the tract of land in question, and sold it to F. W. Pearson for the total consideration of $1,600, of which the -sum of $300 was to be paid in cash, and three promissory notes were executed by Pearson to appellee for the balance of the price, one note for $300 and two notes for $500 each. It is conceded that the note for $300 was paid, and this action is to recover on the other two notes, aggregating $1,000 and interest. Pearson sold and conveyed the land to appellant Witt and one Taylor. Taylor subsequently died, and appellant, who was one of the defendants below, claims tb at the land was purchased as the property of a copartnership between himself and Taylor, and that they bought the land primarily to get the timber, and had 'cut the timber and .removed it. . The consideration for the deed executed by Pearson to appellant and1 Taylor was paid partly in cash, and notes were executed for' the remainder, which notes were subsequently paid.

Appellant defends against the right of appellee to foreclose the lien on the ground, first, that appellee’s conduct estopped him to assert a lien on the land as against the subsequent purchasers, and second, that he had actually released the lien by agreeing with Pearson, when the latter offered to pay the notes, to treat it as a payment and reloan the money to Pearson.

The issues of fact were tried, before the court on oral testimony, which has been properly preserved in the record, and the chancellor found against appellant on the issues, and rendered a decree in favor of appellee, foreclosing the lien for the full amount claimed. Pearson was appellee’s father-in-law, and died shortly before the commencement of this action.

Appellant’s brother testified that, about a month before Pearson’s death, lie met appellee on the street, and that the latter stated to witness that Pearson offered to pay him the money on the notes, but’ that he had not actually received the money, and had loaned the money back to Pearson “in some way,” and that Pearson was to' give him a deed of trust on another tract of land to secure the debt. Witness testified further that he did not tell his brother about this conversation until after the commencement of the present action.

It is undisputed that appellant and Taylor paid off their notes to Pearson nearly two years before Pearson’s death. Appellant testified that, when he paid the money to Pearson, the latter promised to pay it on the notes to appellee and discharge them, and he further stated that he “kept after” Pearson, but neglected to see that the money was thus paid and the notes of appellee discharged.

Pearson’s widow testified that, shortly after her husband’s death, she had a conversation with appellee, in which he stated to her that Pearson had offered to pay him the money on the notes, but that he did not take it, and also that appellee told her that Pearson had agreed to give him other security in the form of a mortgage on a tract of land. ' >

Appellee testified in his own behalf, and denied that he had any conversation witli appellant’s brother, or that lie made the statements to Pearson’s wife as testified to by her. •

Even if we should treat the testimony of appellant’s brother and1 Mrs. Pearson, concerning the statements of appellee, as preponderating evidence against the- denial of appellee himself, we do not think that the testimony is sufficient to warrant a finding that appellee’s conduct was sufficient to work an estoppel, or that it amounted to a payment of the notes by Pearson to appellee and a relending of the money by the latter back to Pearson. The testimony of appellant’s brother on this subject is too vague. Here is his precise language in testifying'on the subject: “I met Mr. Churchwell on the street at Bradford, and he came up to me and told me about Mr. Pearson owing a note on this land that my brother and Taylor had bought over there, and the way I understood it, Mr. Pearson had offered him the money, and he did not receive the money on this note, and he loaned it back to him some way, and he was to give him a deed of trust on eighty acres of land farther up in the bottom somewhere, and he came down that day to get this deed, and Mr. Pearson was in a condition that he could not make it.” Further on in his testimony he made this statement: “Q. Did I understand you to say he said Mr. Pearson had offered him the money before? A. Yes, but lie didn’t take the money, or loaned it back to him.' I didn’t pay much attention to it.” ■This conversation, according to the testimony, occurred about a month before Pearson died, which was long after the payment of the notes to Pearson by appellant and his partner, and they were not misled in any way, for the reason that the witness says he did not mention it to his brother until after Pearson’s death and until after the present action was instituted. There was no injury resulting from the conversation, and therefore there could lie no estoppel. Neither are the statements of the witness sufficient to prove that the money was paid and was re-lent to Pearson.» There is no evidence in the case that the notes were ever surrendered or that any new notes or additional security was ever given.

The testimony of Mrs. Pearson as to iippellee’s admission to her merely tends to show that there was an unperformed agreement between appellee and Pearson, that appellee was to take other security from Pearson and release the liens on the land in controversy. There is no pretense that such an agreement, if made, was ever carried out; therefore the ag'reement did not constitute a release of the lien.

One of the notes sued on has been lost, and the action was originally instituted on the other note, but the complaint was subsequently amended so as to include the lost note. It is insisted that the court erred in decreeing recovery on the lost note as well as the other one.

Appellee explained his failure to inform his attorneys about the lost note and include it in the action as originally instituted, by'stating that he did not think that he could recover on a lost note, and was afraid that he would not be able to find the note, but that later he mentioned the matter to his attorneys, and the lost note was included in the complaint.

Appellant’s brother and Mrs. Pearson both testified that, in their conversations with appellee, he only mentioned having one note and only claimed a debt of $500 against the land. If there was any testimony tending to' show that the lost note claimed by appellee was never, in fact, executed, or that the note had been paid, appellee’s conduct in failing to inform his attorney about it and to include it in the suit, together with other testimony tending to show that he had made no mention to the witnesses of the lost note, would be cogent circumstances against appellee in his contention that he is the owner of the lost note and that it is unpaid. But it is undisputed that there were two notes for $500 each. The deed executed by appellee to Pearson recites the two notes, as well as the $300 note, Avhich the evidence shows was paid. There is no testimony tending to show that the lost note was ever paid. Appellee himself testified positively that he lost or misplaced the note and had never been able to find it, and that it was unpaid. We are of the opinion that the chancellor was justified in finding from the evidence that the note had been executed and had never been paid.

Decree affirmed.