author: McHaNey, J.

text:
    Hollowoa v. Buck.
    Opinion delivered June 20, 1927.
    1. Wills — family settlement — consideration. — An agreement of a devisee to divide land given him under his mother’s will with his sisters, for which cash payment was to be made, held not void for want of consideration, where based on the promise of the sisters not to contest the will, regardless of whether such cohtest might have been successful.
    2. Compromise and settlement — family settlement. — Family settlement of .property rights, fairly made, will not. be set aside except for very strong and cogent reasons, and the consideration and prior legal rights of the parties will not be closely scrutinized.
    3. Specific performance — necessity of tender. — In a suit by sisters against a' brother for specific performance óf a family settlement by which the brother, as vendor, was to divide property received under his mother’s will, failure of the sisters, as vendees, to make tender of the amount agreed to be paid wás no defense, where the brother had repudiated the agreement and ordered the sisters off the premises, as a tender would have been useless.
    4. TENDER — when useless. — The law does not require that á tender be made under 'circumstances where it would be vain and useless. ■
    5. Frauds, statute of — part performance. — Where vendees took possession of land which the vendor agreed to convey in consideration of a family settlement, and fenced and pastured it with the vendor’s knowledge and consent, it was heldl sufficient performance -to bake a parol contract out of the statutes.
    6. Frauds, statute of — part performance. — A parol contract taken out of the statute as to one of several vendees by part performance is taken out of the statute as to all.
    Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Robert Bailey, for appellant..

      Hays, Priddy & Rorex, for appellee.
   McHaNey, J.

Appellant, 8. W. Hollowoa, and appellees are the children and heirs at law of W. E. and Betty Hollowoa, who were the owners of 35 acres of land inside the corporate limits on the west side of the city of Russellville. The father had purchased 20 acres thereof from Lawrence Russell, $233 of the purchase price thereof remained unpaid at the time of his death in 1896. The mother owned 15 acres adjoining in her own right, and, after the death- of her husband, paid off the balance of the purchase price .on the 20-acre tract and took title thereto in her own name. Their residence was located on this 20 acres, and the mother continued to live thereon until her death on October 21, 1921. The mother had g"ven three of her children an acre of land each for a home, and all the children, except appellant, had married, he continuing' to live with his mother and look after her in her old age. The proof shows appellant to be without education,-being unable to read and write, but can sign his name with difficulty. Three days prior to her death the mother made a will, which was not properly attested, in which she gave all her property to appellant, except $1 to each of the appellees, and the request that appellant convey an acre of land to her daughter, Stella Burke, in order to equalize matters among all the appellees. An exact copy of the will is as follows: .

“I, Bettie Hollowoa, do make this my last will and testament, hereby revoking all former wills by me made.
“First: To my beloved son, J. W. Hollowoa, and my beloved daughters, Irene Buck, Stella Burke and Lizzie Moore, I give one ($1) dollar each, and no more; I have heretofore given them out of my estate; that is all, except Stella Burke, which I will hereafter provide for to make her equal with the others.
“Second: I give, devise and bequeath all the rest of my property, personal, real and mixed, to my beloved son, Sullivan Hollowoa, he having stayed at home and cared for me in my last day; it is my request that he pay the debts incurred by my last illness, my funeral expenses, and all my other just debts, out of my property, and that he deed Stella Burke one acre for a home and to make her equal with the other children.
‘ ‘ Third: I hereby appoint my beloved son, Sullivan Hollowoa, as executor of this my last will and testament.
“This October 18, 1921.
. “Bettie Hollowoa.
‘‘Witness:. W. D. Yance, J. W. Hollowoa, Irene Buck. ’ ’

This will was probated October 28, 1921. Appellant continued to live on the land from the death of his mother, and in March, 1922, married a wife who was objectionable to some of the appellees. A day or two after his marriage, appellee, Irene Buck, advised appellant that they were going to contest the will unless he made a settlement with the other heirs. He then went home with Irene Buck and, in the presence of appellee, Lizzie Moore, and in the hearing of appellee, Stella Burke, agreed that, in order to avoid litigation, they would make a division of the land, employ a surveyor, and lay off the tracts in substantially equal parcels, be to retain tbe residence and seven acres of ground, and eacb appellee was to pay appellant $60., Pursuant to this agreement, a surveyor was employed, tbe tracts laid off, in wbicb appellant assisted, eacb appellee took possession of bis or ber respective tract, appellees Buck and Moore fencing their tracts with the knowledge, consent and without objection from appellant. They engaged counsel, who prepared deeds, conveying tbe respective tracts in accordance with tbe agreement, wbicb were signed by all the heirs except appellant. The final closing up of the matter dragged along until the year bad expired in which to appeal from tbe order probating tbe will, whereupon appellant refused to carry out tbe agreement by executing the deeds, and, in December, 1922, tore down tbe fences placed there by bis sisters, with bis knowledge and consent, in pursuance of such settlement agreement, and took possession of said lands. Suit was thereafter brought against appellant to enforce this agreement, as a family settlement, for specific performance. Tbe chancery court entered a decree carrying out the settlement, from which comes this appeal.

Appellant insists that, although be entered into the agreement and settlement heretofore set out, it was without consideration and void, for the reason there was no valid ground on which to base a contest of his mother’s will. In 5 R. C. L., § 6, page 881, it is said: “A doubtful or disputed claim, sufficient to constitute a good consideration for an executory contract of compromise, has been defined as one honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he has a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be whollv unfounded.”

Again, on page 883, it is said: “Hence it is a general rule in this country that comuromises are to be favored, without regard to the nature of the controversy compromised, and that they cannot be set aside hecanse the event shows all the gain to have been on one side and all the sacrifice on the other, if the parties have acted in g-ood faith, and with a belief of the actual existence of the rights which they have respectively waived or abandoned; and, if a settlement be made in regard to such subject, free from fraud or mistake, whereby there is a surrender or satisfaction, in whole or in part, of a claim upon one side in exchange for.or in consideration of a surrender or satisfaction of a claim in whole or in part, or of something of value, upon the other, however baseless may be the claim upon either side or harsh the terms as to either of the parties, the other cannot successfully impeach the agreement in a court of justice. If the settlement is characterized by good faith, the court will not look into the question of law or fact in .dispute between the parties and determine which is right, even though it ultimately appear that the claim was unfounded in the law; provided, however, it is not wholly without leg’al basis or upon an inherently illegal and void consideration.”

Then, again, this was a family settlement of property rights, fairly made, and will not be set aside except for very strong and cogent reasons; neither will the consideration for the settlement nor the prior legal rights of the parties be minutely inquired into. As was said in Pate v. Johnson, 15 Ark. 275: “Amicable and" family settlements are to be encouraged, and, when fairly made, * * * strong reasons must exist to warrant interference on the part of a court of equity.”

The above was quoted in Martin v. Martin, 98 Ark. 93, 104, 135 S. W. 348, 353, where it was said:

“This was, in effect, a family settlement of the interests of these members of the family in these two remaining tracts of land which came from these two estates of the family. Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. The motive in such cases is to preserve the peace and harmony of families. The consideration of the transaction and the strict leg'al rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourag’e and enforce them.” Campbell v. Hopkins, 15 Ark. 51; Turner v. Davis, 41 Ark. 270; Giers v. Hudson, 102 Ark. 232, 143 S. W. 916; Felton v. Brown, 102 Ark. 658, 145 S. W. 552; Dudgeon v. Dudgeon, 119 Ark. 128, 177 S. W. 402.

It is therefore not necessary for us to determine whether a contest of the will might have been successful. The forbearance of appellees in this regard was sufficient consideration to support appellant’s agreement to settle. '

There is no merit to the contention that, since appel-lees failed to make tender to him of the $60 each agreed to pay, he was justified in refusing to execute the deeds. The proof shows he tore down the fences and notified them to stay off the premises, and refused to carry out the agreement. It would have been a vain and useless thing to have made a tender under such circumstances, which the law does not require. Moreover, the proof shows that, if he had executed the deeds and deposited them in the bank, as he was requested and directed to do, for delivery on payment, same would have been paid.

The only other question of sufficient importance to consider here is, was it necessary, under the facts in this case, for the settlement or agreement to be in writing, since it involved the conveyance of real estate? This question must also be decided against appellant. The undisputed proof shows that at least two of the appellees actually entered into possession of their tracts, fenced them, pastured them, and exercised other acts of ownership over them with appellant’s full knowledge and consent. They were therefore in the same attitude as a vendee who has been put in possession by the vendor under a parol contract to purchase, which takes the contract out of the statute of frauds, and, if taken out as to one, it is out as to all. In Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896, it is said:

“It lias been held by this court that delivery of possession of land to tbe vendee nnder a parol contract of purchase takes the case out of the operation of the statute of frauds; and that possession alone is sufficient part performance of an oral contract for the sale of land to sustain a decree for a specific performance.”

The above language was quoted with approval in Central Bank v. Downtain, 162 Ark. 46, 257 S. W. 746, and the same rule has (been adhered to in a long line of cases.

We find no error, and the decree is accordingly affirmed.


source: Caselaw Access Project

author: McHaNEY, J.

license: Public Domain

text:
    Cordell v. Kent.
    Opinion delivered June 20, 1927.
    1. Statutes — implied repeal. — Acts 1927, p. 388, authorizing all local improvement districts to refund their indebtedness, which was a permanent measure designed to provide for improvement district debts in the future, held not to repeal Acts 1927, p. 338, which was a specific emergency measure passed at the same session authorizing road districts to refund their indebtedness.
    2. Statutes. — implied repeal. — A general affirmative statute does not repeal a prior particular statute or particular provisions of a prior statute on the same subject, unless there is an invincible repugnancy between the two.
    3. Statutes — contemporaneous acts. — Contemporaneous statutes enacted at the same session of the Legislature should be so construed as to give effect to both of them, if such construction is possible.
    Appeal from Howard Chancery Court; C. E. Johnson, Chancellor;
    reversed.

      Robinson, House & Moses and Jas. 8. McConnell, for appellant.

      Charles Jacobson, for appellee.
   McHaNEY, J.

Appellee brought this suit to enjoin appellants, as commissioners of the Howard-Sevier Road Improvement District, from refunding its past due bonded indebtedness and interest under the provisions of act number 114, Acts of 1927, on the ground that said act- had been rejjealed by act 126 of 1927. Appellants demurred to the complaint, which was overruled, and, on declining* to plead further, the injunction issued. To determine the.correctness of this action of the court this appeal is prosecuted.

Act 114 is entitled, “An act to authorize road improvement districts in the State of Arkansas to refund present indebtedness, and for other purposes,” and was approved March 4, 1927. Act 126 is entitled, “An act to provide for the refunding .of the indebtedness of local improvements districts,” and was approved March 7, 1927. These acts will be found on pages 337 and 338, respectively, of the Acts of 1927. Act 114 applies to road districts only, whereas act 126 applies to all local improvement districts, including road districts, levee and drainage districts. Act 114 is a specific declaration of the Legislature, authorizing, not requiring, road districts to refund their bonded indebtedness which became due prior to January 1, 1927, whereas act 126 is a general declaration of the Legislature, applicable to all improvement districts, authorizing them to refund their “bonded or other indebtedness” becoming due at any time, either prior or subsequent to January 1, 1927. Act 114 is rather in the nature of an emergency measure to provide a quick and easy method of refunding* past due and pressing debts in defaulting districts, whereas act 126 is a permanent measure, designed to take care of improvement district debts at any time in the future. We have made this comparison of these acts as a premise for .our conclusion that 114 is hot repealed by 126. We do not deem it necessary to set these acts out, nor to pursue a further comparison of their provisions.

This court, in McPherson v. State, 29 Ark. 225, quoted with approval:

“ ‘A statute,’ says Dwarris, ‘can be repeáled only by an express provision of a subsequent law, or by necessary implication. " To repeal'a statute by implication, there must be such a -positive repugnancy between the provisions of the hew law'and the old that they cannot. stand together or be consistently recognized.’ Dwar. Stat. 155. And Sedgwick says: ‘A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent.’ Sedg. Stat. Law.”

In the same case it is further said:

“There is, however, another rule of construction sometimes employed, which we should perhaps notice, which is that, where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect.”

In Baugher v. Rudd, 53 Ark. 418, 14 S. W. 623, this court said:

“The rule of construction is that a general affirmative statute does not repeal a prior particular statute or particular provisions of a prior statute upon the same sxibject, unless there is an invincible repugnancy between the two.”

This case was cited in Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 486, and the above quotation was cited with approval.in Ward v. Wilson, 127 Ark. 266, 191 S. W. 917.

There are numerous cases in this court holding to the same rule of construction and none to the contrary. Under this rule it is manifest that act 126 does not repeal act 114. The repealing clause in act 126 does not expressly repeal act 114. It merely recites that all laws in conflict are repealed, and to hold that the one repeals the other we would have to say that there is such a repugnancy in the later act that the earlier is necessarily repealed, or that the Legislature took up the whole subject-matter anew in the later act and evidently intended to enact the later as a substitute for the earlier, which we cannot do under the rule announced.

Both acts were passed by the same session of the Legislature, and approximately at the same time, 114 being finally passed through the Legislature on March 3, and approved by the Governor on March 4, and act 126 was finally passed through the Legislature on March 4 and approved by the Governor on March 7.

And there is another rule of construction, that contemporaneous statutes enacted by the same session of the Legislature should be so construed as to give effect to both of them as to come “within the reason of the rule governing the construction of statutes in pari materia.”

In Arkansas Railroad Commission v. Stout Lumber Co., 161 Ark. 164, 225 S. W. 912, this court quoted with approval from Smith v. People, 47 N. Y. 330, as follows:

“Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.”

In 25 Ruling-Case Law, 930, it is said:

“Effect should be given, if possible, to statutes in pari materia, enacted at the same legislative session, and where two acts relating to the «ame subject were under consideration and enacted at the same session of the Legislature, the courts, it has been said, will exhauist all the resources of interpretation before coming to the conclusion that there is an irreconcilable repugnancy between them and that one repeals the other. Acts passed at the ,same legislative session are construed as one act on the same subject. And, instead of holding such acts repugnant, the courts will give effect to both, although, in order to dp so, it becomes necessary to engraft one on the other, or incorporate the earlier into the later act, as an exception to its provisions * *

And this rule has been long adhered to in the decisions of this court, for, in McFarland v. Bank of the State, 4 Ark. 410, it is said:

“This view of the case is strengthened by considering that both the general and special law of interest were before the Legislature at one and the same time, •and that there were only four days between their respective dates. The proximity of these dates raises a violent presumption, if it does not amount to full proof, that the term ‘corporation’ used in the general law of interest was never intended to embrace or apply to the transactions of the bank.”

Under this rule we cannot say that act 126 repeals act 114.

We do not deem it necessary to discuss the other questions raised in the complaint of appellee, as the case was decided by the chancellor on the ground that act 126 repealed act 114 by implication. However, we may say that we have examined carefully the provisions of act 114 and do not find it subject to the criticisms' set out in appellee’s complaint.

It necessarily follows, from what we have said, that the court erred in overruling appellant’s demurrer to the complaint. The cause will be reversed, and remanded with directions to sustain the demurrer to the complaint, and for other proceedings according to the principles of equity and not inconsistent with this opinion. It is so. ordered.


author: Hart, C. J.,

text:
    Haynie v. Surplus Trading Company.
    Opinion delivered June 27, 1927.
    1. Taxation — personal property on military reservation. — Personal property privately owned within Camp Pike Military . Reservation in Pulaski County, held not exempt from taxation by that county under Acts 1903, p. 346, §§ 1, 2, under which the reservation was acquired by the United States.
    2. Taxation — personal property omitted trom tax roll. — Personal property not placed on the tax roll was properly valued by the assessor under Crawford & Moses’ Dig. § 9910, when notified of the omission, without the assistance of a township board, under Acts 1919, p. 132.

      3. Taxation — listing op property erroneously omitted prom tax roll. — Crawford & Moses’ Dig. § 99Í0, relating to the manner of listing property erroneously left off the tax roll, held not repealed by Acts 1919, p. 348, creating boards of equalization in all counties.
    4. Taxation — action to recover personal property taxes. — In a suit to collect taxes on privately owned personal property located within a military reservation' and erroneously omitted from the tax roll and valued by the assessor under Crawford & Moses’ Dig. § 9910, the taxpayer, having failed to pursue the statutory remedy, held not entitled to complain of overvaluation.
    5. Taxation — state property. — Where surplus personal property within the Camp Pike Military Reservation was sold by the United States to an honorary commission appointed by the Governor for the benefit of the Arkansas National Guard, and where such commission appointed a particular trading company to sell the property, under contract entitling , it to one-half of the profits as compensation for its services, and for advancement of the purchase price, held that the property so sold was not taxable as property of the trading- company.
    Appeal from Pulaski Oban eery Court; John E. Mar-tineau, Chancellor;
    reversed in part.
    STATEMENT BY THE COURT.
    This suit was brought by the sheriff and collector of Pulaski County, Arkansas, against the Surplus Trading Company to recover certain taxes for the years 1922 ■ and 1923, which the complaint alleges were due by it upon personal property situated in Pulaski County, Arkansas, which it had failed to assess for the years 1922 and 1923, and which the assessor had assessed as property erroneously left off the tax-rolls and to which he had attached the statutory penalty.
    ■ The facts necessary to determine the issues raised by the appeal may be briefly stated ah follows:
    The Surplus Trading Company is a partnership composed of various firms, corporations and individuals. It was organized for the purpose of dealing in military supplies of various kinds owned by the United States and left over after the World War. On April 21, 1922, the Surplus Trading Company paid the United States the sum of $138,492.65 for 87,143 blankets situated on the Camp Pike Military Reservation in Pulaski County, Arkansas. It subsequently sold these blankets for a profit to various firms in the State of Arkansas and in other states. It failed to assess its property for taxation for the years 1922 and 1923, and the assessor of Pulaski County duly assessed the property of said firm at an amount which he had been informed was the value of the property owned by said firm and situated in Pulaski County during the time for assessing said property in said years. The Governor of the State of Arkansas appointed an honorary commission to handle and sell property belonging to the United States-situated in said Camp Pike Military Reservation. This property was sold at a reduced price by the United States to said honorary commission for the benefit of the Arkansas National Guard. The honorary commission employed the Surplus Trading Company to hándle and sell said property for it. The Surplus Trading Company, as part of the consideration for its employment, agreed to advance the purchase price of said personal property upon the condition that it should be repaid from the sales of said property.
    Such other facts will be stated or referred to in the opinion as may be necessary for a determination of the issues raised by the appeal. ' -
    The chancellor found the issues in favor of the defendant, and it was decreed that the complaint should be dismissed for want of equity. The case is here on appeal.
    ' H. W. Applegate, Attorney General, and Sam T. & Tom Poe, for appellant.

      Rose, Hemingway, Cantrell <& Loughborough, for appellee. '
   Hart, C. J.,

(after stating the facts).l"!

The Camp Pike Military Reservation lies within the boundaries of Pulaski County, Arkansas, and the principal question presented for decision by this appeal relates to the power of the State and its subordinate taxing agencies to levy and collect taxes pursuant to the State laws upon personal property situated within said military reservation.

Counsel for appellee seek to uphold the decree of the chancellor denying the right of the State and its subordinate agencies to levy and .collect such taxes upon the authority of Concessions Co. v. Morris (Wash.), 186 Pac. 655. In that case it was held that the Camp Lewis Military Reservation, which was donated hy Pierce County to the United States by consent of' the State Legislature, excepting only the right to serve criminal and civil process therein, from the exclusive control of Congress, is without the State in both a jurisdictional and territorial sense, and personal property located thereon is not taxable under the State laws.

We do not agree with the reasoning of the court in that case, and are of the opinion that'it is contrary to the trend of the decision of the United States Supreme Court bearing on the question as well as to the weight of authority in the State courts. The true rule governing cases of this sort is stated by the Virginia Supreme Court of .Appeals in Nikis v. Virginia, 131 S. E. 236, 46 A. L. R. 219. In that case the court held to be subject to ia State license tax a mercantile business carried bn in a railroad station situated on land ceded to the Federal Government for an approach to an interstate bridge. It was there recognized that the State could not tax land or buildings situated thereon which had been ceded by the State to the United States, but it was expressly held that personal property situated in buildings upon said land owned by third parties was liable to be taxed by the State and county in which it should be found. In discussing the question' the court said:

"That, the right of a State to tax the property of others located upon lands owned by the United States, although it cannot' tax such lands, will not be held to be abandoned by the State except for the most compelling reasons, is quite manifest from several decisions of the Supreme Court of the United States.”

In that case the G-eneral Assembly of Virginia ceded the land to the United States for abutments and approaches of a proposed bridge across the Potomac River. The State retained concurrent jurisdiction with the United States over such lands for the execution- of legal process and the discharge of such other legal functions within the same as may not be incompatible with the consent given in the act. The act also, provides, that the land acquired and the abutments and approaches of. the bridge should be exempt from taxation by the. State and county in which they were situated.

The Camp Pike Military Reservation was acquired by the United States under the provisions of an act of the Legislature of 1903. Acts of 1903, page 346. Section 1 of the act provides that the State of Arkansas consents to the purchase to be made by the United States of any site or ground for the erection of any armory or arsenal, etc., and that the jurisdiction of the State within and over all grounds thus purchased by the United States is ceded to the United States. The section provides that the grant of jurisdiction shall not prevent execution' of any process of the State, civil or criminal, upon any person who may be upon said premises. Section 2 .provides that the State releases her right to,tax any such site, grounds or real estate and all improvements which may be thereon and thereafter erected thereon, during the time the United States shall be and remain the owner thereof.

Thus it will be seen that, by the terms of the act itself, it was not intended by the State to part with jurisdiction for the purpose of listing personal property of third persons in the reservation for assessment and taxation: The grant by the State expressly cedes its right to tax the land and buildings granted to the United States, and this of itself indicates an intention to reserve jurisdiction for taxation over the property of third persons located on such reservation. The United States accepted the grant upon the terms indicated and, by its acceptance, acknowledged that there was no occasion for the State to cede exclusive jurisdiction to the United States or to éxempt from State taxation tlie property of third persons situated upon the reservation, which was not used by the United States as a public agency or instrumentality for carrying out the purpose of the grant.

In Noble v. Amoretti, 11 Wyo. 230, 71 P. 879, it was held that State taxation of the stock of goods of a licensed Indian trader located upon an Indian Reservation is not a tax upon an agency of the general Government and is not a burden upon commerce with an Indian tribe. It was further held that personal property, including the stock of goods of a licensed Indian trader, located within the limits of the Shoshone Indian Reservation, and employed in the business of' such trader, is subject to taxation under the laws of the State in the same manner and to the same extent as all other like property within the county.

In Oscar Daniels Co. v. Sault Ste. Marie, 175 N. W. 160, 208 Mich. 363, the Supreme Court of Michigan held that a statute of that State ceding all right and title of the State of Michigan to a canal and public works thereon to the United States, and retaining jurisdiction for the service of civil and criminal process, cedes less than exclusive jurisdiction, and the ceded territory is not out of the State, in so far as taxation of private property is concerned. We think this holding is in accord with our own decisions and the trend of the decisions of the Supreme Court of the United States bearing on the question.

In Ex parte Gaines, 56 Ark. 227, 19 S. W. 602, it was held that the estate of the lessee of land belonging to the United States situated on the Hot Springs Reservation was not exempt from taxation. The court said that the interest of the lessee in the land was not the property of the United States and was not a means employed by Government to obtain a governmental end. It is true that, in that case, the decision was also based upon an act of Congress giving the consent of the United States to the taxation of personal property under the laws of the State of- Arkansas on the Hot Springs Reservation. It will be noted, however, that the trend of reasoning in that case is in accord with the reasoning in the- Virginia and Wyoming cases above cited.-

In Cassels v. Wilder, 23 How. 61, it was held that property on a United States military reservation is subject to taxation by, a. Territory. In Thomas v. Gay, 169 U. S. 264, 18 S. Ct. 340, 42 L. ed. 740, it was held that an •act of the Legislature of Oklahoma Territory providing for the taxation of personal property of persons other than Indians was-a legitimate exercise of the Territory’s power of taxation, and, when enforced in the taxation of cattle belonging to persons not resident in the Territory, grazing upon Indian reservations therein, does not violate the Constitution of the United States. In Wagoner v. Evans, 170 U. S. 588, 18 S. Ct. 730, 42 L. Ed. 1154, in Foster v. Pryor, 189 U. S. 325, 23 S. Ct. 549, 47 L. Ed. 835, and in Catholic Missions v. Missoula County, 200 U. S. 118, 26 S. Ct. 197, 50 L. Ed. 398, this decision was approved and followed. To the same effect, see Rice v. Hammond, 19 Okla. 419, 14 Ann. Cas. 963, 91 P. 698; County of Cherry v. Thacher, 32 Neb. 350, 49 N. W. 351, and Cosier v. McMillan, 22 Montana, 484, 56 Pac. 965.

The doctrine of these cases sustains, we think, the authority of Pulaski County to tax the personal property of third persons situated on the Camp Pike Military Reservation, where the property, is not used as a governmental agency, and where it would be otherwise subject to taxation under the laws of the State.

It is also claimed by counsel for appellee that the tax cannot be collected because the assessment was not made in the manner provided by law. It is urged that the assessment was not made by- the assessor -with the assistance of the township board in accordance with the provisions of act 147 of the Acts of 1919, providing for the taxation and valuation of taxable property in the State as construed in Hutton v. King, 134 Ark. 463, 205 S. W. 206. The act has been incorporated in Crawford & Moses’ Digest, commencing with § 9887. Section 9910 of Crawford & Moses ’ Digest, which is § 16 of said act 147, provides for the manlier of listing property erroneously left off the tax-roll. The property in question was not assessed by the 'Surplus Trading Company for the year 1922 and was left off the tax roll. Subsequently the tax assessor was notified of the omission to list the property by the clerk, and placed a value of $100,000 on the personal property of the Surplus Trading Company, and designated the same as delinquent. Under the provisions of the section of the statute last above referred to it was the duty of the assessor to place a value upon prbpertv which, for any reason, had been omitted from the tax-roll, and the township board had no duty to perform in the matter.

Again, it is insisted that said act 147 was repealed by act 477 passed by the Legislature of 1919'. This act contains twelve sections, and it is only necessary to say that it had nothing whatever to do with the original or primary assessment of property. ■ The only power given is with reference to the equalization of the valuation of all property which has been properly assessed.

• Again, it is contended by counsel for appellee that there was an overvaluation placed upon the property of the Surplus Trading Company for the year 1922. The record shows that, on April 21, 1922, the Surplus Trading Company purchased from the United States 87,143 blankets situated on the Camp Pike Military Reservation in Pulaski County, Arkansas, and paid therefor the sum of $138,492.65. These blankets were sold afterwards by the Surplus Trading Company to various persons at a profit. It was the duty of the Surplus Trading Company to assess its property situated in Pulaski County, Arkansas. Beal-Doyle Dry Goods Co. v. Beller, 105 Ark. 370, 150 S. W. 1033. Not having done so, it became the duty of the assessor to assess the property under the provisions provided for the manner of listing property erroneously left off the tax-roll. The valuation placed - upon the property by the assessor Avas $100,000. If tlie Surplus Trading Company thought that the assessor had placed an excessive valuation upon the property, when -.compared' with the value placed upon similar property, it should have pursued the remedy provided for its relief under the statute. Having failed to pursue this remedy, the courts cannot give any relief. Clay County v. Bank of Knobel, 105 Ark. 450, 151 S. W. 1013, and eases cited. In State v. Little, 94 Ark. 217, 126 S. W. 713, 29 L. R. A. (N. S.) 721 we quoted with approval from well-known authorities on taxation the following: “The courts, either of common law or equity, are powerless to give relief ag’ainst the erroneous judgments of assessing bodies, except as they he especially empowered by law to do so.”

■ It-was-there said that the text quoted is a rule of general application. Under the principles of law above decided, we are of the opinion that the assessment of 1922 must stand, and that the sheriff had a right to institute an action for the collection of the assessment and penalty.

The case with reference to the assessment for 1928 stands on a different footing. The testimony in the case with reference to the ownership of the property is very voluminous, but we are of the opinion that the record plainly shows that the United States sold all the rest of the property belonging to it, situated on the Camp Pike Military Reservation, to an honorary commission' appointed by the Governor of the State of Arkansas for the benefit of the Arkansas National Guard, and that said honorary commission appointed the Surplus Trading Company as its agent to sell said property. The title' to the property was in said honorary commission, and the Surplus Trading Company was to advance the money necessary for the payment of the purchase price to the United States. After the Surplus Trading Company bad been reimbursed for the purchase money advanced by it, it was to receive half of the profits for selling the property .and for advancing the purchase price. This is the effect of our decision upon the same state of facts in Adkins v. Kalter, 171 Ark. 1111, 287 S. W. 388. The assessment was made by the assessor in 1923 on certain moneys deposited in various banks in tlie eity of Little Rock to the credit of said honorary commission. The assessment was made by the assessor upon the theory that - part of the money belonged to the Surplus Trading Company and it had failed to assess the same as required by law. Under the facts stated, as we construe them, this money deposited in the various banks in Little Rock to the credit of the honorary commission did not belong to the Surplus-Trading Company at the time the assessment wás made. It belonged to the honorary commission, as trustee for the benefit of the Arkansas National Guard, and was, on that account, the property of the State.- It is true that, the Surplus Trading Company had earned a portion of it by its services in the matter, as above stated, but it did not actually have any right to the money until the honorary commission settled with it and paid it for its services. Until that was done, the case would stand like that of any other agent who had performed services for his principal and had collected money for him, but had not yet been paid for his services. Under this state of the record we have the case of an illegal assessment and not one of excessive valuation or an erroneous assessment. The assessment being absolutely void,- the assessor had no right to make it. ■ As we have already seen, the suit was brought by the collector to recover taxes from the Surplus Trading Company, and it was proper for the chancellor to grant all relief, legal or -equitable, to -which the parties in the lawsuit were entitled. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645.

The result of our views is that the chancellor should have held the assessment for the year 1923 to be illegal and void, and properly restrained the sheriff from collecting any amount of taxes from the Surplus Trading Company under it. The chancery court, however, erred in holding that the sheriff and collector was' not entitled to. recover the taxes for the year 1922 and the penalties provided by the statute, as indicated in the opinion. -

Therefore the decree will be reversed, ánd the cause will be remanded with the directions to allow the sheriff and collector to recover against tlie Surplus Trading Company the amount of taxes and penalties for the year 1922. It is so ordered.


author: Hart, C. J.

text:
    Dunn v. Dunn.
    Opinion delivered June 27, 1927.
    Divorce — voluntary property settlement. — Where a wife was granted a divorce and decreed one-third of her husband’s personal property absolutely, and one-third of his real estate for life, and she afterwards agreed to accept $1,200 in lieu of the property rights under the decree, it was error to refuse to confirm such settlement, in the absence of «any showing of false representations or coercion.
    Appeal from Woodruff Chancery Court, Northern District; Jonas F. Dyson, 'Special Chancellor;
    reversed.

      J. F. Summers, for appellant.
   Hart, C. J.

Buhe Dunn prosecutes this appeal to reverse a decree of the chancery court refusing to confirm the settlement of the property rights of himself and Cora Dunn.

It appears from the record that Cora Dunn brought an action for divorce against her husband, Rube Dunn, and for a division of property under § 3511 of Crawford & Moses’ Digest. The court granted a decree of divorce against the defendant from bed and board, and granted her the custody of the girl children and her husband the custody of the boy children. It was further decreed that she should have one-third of his personal property absolutely and one-third of his real estate for her life, and a commissioner was appointed for the purpose of making a division of the property. By agreement Mrs. Cora Dunn accepted $1,200 in lieu of her property rights under the decree. This sum of money was paid to her by her husband, and a receipt was given in accordance with the terms of the settlement.

Subsequently Mrs. Cora Dunn filed objections to the report of the commissioner and asked for a division of the. property in accordance with the terms of the. original decree. • The property was dnly appraised at a total value of $4,274. The fee of the land in the appraisement was valued at $3,200. Thus it will he seen that Mrs. Cora Dunn, if she had been entitled to receive one-third of the value of the fee in the land, would not have received more than $1,424. There is no showing that she was induced by false representations or coerced into • accepting the: sum of $1,200 in lieu of her property rights under tha decree. She accepted the sum of $1,200 of her own free will, and there is no proof in the record tending to show that she was in any wise deceived.

The parties were- capable of contracting with reference to their property rights, and no proof is shown which warranted the chancellor in refusing to confirm their- settlement, which had ¡been voluntarily agreed to and which had been executed by payment of the amount agreed upon by the husband to the wife.- Therefore.the chancellor erred in refusing to* confirm .the settlement and in ordering a division of the property between the parties in accordance with the terms of the original decree.

: The result of our views is that the decree of the chancellor will be reversed, and, inasmuch as the case seems to have: been fully developed, the chancery court will be directed to enter a decree approving and confirming the settlement of the parties as to their property rights and vesting the title to the real estate in Rube Dunn, free from any interest or claim of Mrs. Cora Dunn. It is so ordered.


author: Hart, O. j.,

text:
    Board of Improvement Street Improvement District No. 349 v. Little Rock.
    Opinion delivered June 27, 1927.
    1. Municipal corporations — annex-to improvement • district— mode of assessment of benefits. — .Crawford & Moses’ Dig., § 5733, providing for annexation of territory to a street improvement district and for assessment of benefits by the' commissioners on the same basis', as if the territory were included in the original district, does not contemplate that the board of commissioners should make the assessment, but requires the commissioners ito cause the property in the annexed district to be assessed by the same instrumentality, and in the same way that the property was assessed in the original district.
    2. Municipal corporations — improvement district — appointment of assessors. — Where a city council appointed a new board- of assessors to make assessment for street improvement in' a district annexed to an original improvement district,.it would .be presumed that the council considered that the old board of assessors for the original district had finished its work, and ceased to exist, except for purpose of revising the assessment under Crawford & Moses’ Dig., § '5664; there being no provision for retention of the old board of assessors for any other purpose.
    3. Municipal corporations — annexation district — appointment of assessors. — Under Crawford & Moses’ Dig., § 5657, providing that the board of improvement, after completing plans, shall report to the city council, which shall appoint a board of assessment, it is intended that, when plans for the annexation district are forméd by the commissioners, the council shall have power to appoint'd new board of assessors to make assessment for the annexation district, if the old board has finished its original assessment, and its action in the matter will not be reviewed.
    4. Municipal corporations — validity of assessment of benefits.— An assessment of benefits in an improvement district will be held to be valid and binding, in the absence of a showing that it was arbitrarily made, or was unequal, or confiscatory, of the like.
    Ajppeal from Pulaski Chancery Court; Frcmk H. Dodge, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    Board of commissioners of Street Improvement District No. 349 of the city of Little Rock, Arkansas, brought this suit in equity against the city of Little Rock, Charles E. Moyer, mayor, and the members of the city council, to enjoin them from doing any act which might hinder or delay the construction of the Marshall Street Annex to said improvement district, and also to review the acts of the Little Bock City Council in regard to its action in appointing assessors to assess benefits in said Marshall Street Annex and to compel it to approve the assessment of benefits filed and caused to be filed by the board of commissioners of said improvement district.
    The facts, so far as they are material to the issues raised by the appeal, may be briefly stated as follows:
    Street Improvement District No. 349 was legally organized for the purpose of improving certain streets in the city of Little Bock. On May 28, 1923, upon application of the commissioners of the district, the Little Bock City Council appointed A. B. Davis, J. M. Murphy and J. A. Peters as a board of assessors of the benefits for each parcel of land within the district by reason of the proposed local improvements. After the construction of the original improvement was finished, the Marshall Street Annex was created pursuant to the provisions of § 5733 of Crawford & Moses ’ Digest. The record shows that a majority of the owners in value of the real property in the territory contiguous to the original improvement district signed a petition in writing to the city council to be annexed to said District No. 349.
    The validity of the organization of the Marshall Street Annex was sustained by this court. Little Bock v. Bouillon, 171 Ark. 245, 284 S. W. 745; and Board of Comm, of St. Imp. Dist. No. 349 v. Little Bock, 172 Ark. 544, 289 S. W. 478. In neither of these appeals, however, was the question presented by this appeal considered or decided. After the validity of the organization of the Marshall Street Annex had been finally settled in this court, the city council appointed J. A. Brooks, J. G-. G-oodwin and J. S. Laird as a board of assessors to assess the benefits in said Marshall Street Annex. After the assessment of benefits filed by this board was rejected by the council and the action of the council sustained upon the appeal in the case last cited, upon the theory that no assessment had been made by said assessors as a board, J. A. Brooks and J. P. Goodwin resigned, and the city council appointed Sol. Alley and J. M. Wells in their stead. J. S. Laird refused to act with Alley and Wells in making an assessment of benefits for said Marshall Street' Annex. Whereupon Alley and Wells, after due notice to Laird of their intention to make an assessment of benefits, proceeded in the matter and filed an assessment of benefits with the city council. The amount of said assessment of benefits was less- than the estimated cost of the improvement, and the city council has taken no action on the same. The assessors of the original district made an assessment of benefits for the Marshall Street Annex and filed it with the city council of Little Bock. Their assessment of benefits showed that the estimated cost of the improvement was less than the total amount of the assessment of benefits. The board of commissioners of the original district also took the oath required by the statute for the board of assessors and signed a duplicate assessment of benefits, which is the same as that filed by the assessors of the original district. The city council heard protests against the assessment of benefits filed by the commissioners and the board of assessors of the original district, and found the assessment of benefits to be invalid because the board of assessors allowed the commissioners of the district to participate in making the assessment of benefits.
    Upon the filing of the present suit in the chancery court, proof ivas made of the facts as above stated, and it was decreed by the chancery court that the appointment by the city council of Alley, Wells and Laird as a board of assessors for the Marshall Street Annex be vacated, and that the city council should recognize the board of assessors of the original district*as a duly constituted board of assessors for the Marshall Street Annex. The chancellor was of the opinion that the assessment made by Davis, Murphy and Peters, composing the board of assessors of the original district, was void for the reason that the commissioners of the original district were allowed, to participate in making said assessment.
    Prom this decree the appellant has dnly prosecuted an appeal to this court, and the appellees have been granted a cross-appeal.

      Melbourne M. Martin, for appellant.

      Pat L. Robinson, for appellee.

      Louis Rhpton, for interveners.
   Hart, O. j.,

(after stating the facts). From our state-3nent of facts it will be seen that the question to be determined upon this appeal is whether or not the board of assessors, of District No. 349 was authorized to make the assessment of benefits for the Marshall Street Annex or whether the new. board, composed of Alley, Wells and Laird, was authorized to make such assessment. The issue as to whether the assessment made by either of the boards is correct in amount is not raised by the appeal.

It is the contention of counsel for appellant that, under our statutes, the assessment of benefits for the Marshall Street Annex should either have been made by the bóárd of assessors- of the original district or by the commissioners thereof. We do not agree with counsel for appellant in his contention in either respect. While the precise question has not been passed upoii by this court, the trend of our decisions bearing on the question is against the contention of the counsel for the appellant. The Legislature of 1909 passed an act providing that, whenever a majority in value of the owners of property adjoining any improvement district now existing or hereafter created in any city or town shall desire to be added to any such improvement district, it shall 'be lawful for the council of the city or town, upon a petition signed by a majority in value- of the owners of the property in such territory proposed to be annexed, to pass an ordinance annexing the same. Acts of 1909, page 744.

This act was -before this court for consideration in White v. Loughborough, 125 Ark. 57, 188 S. W. 10. The validity of the statute was attacked upon the ground that it did not provide for a hearing of the landowners upon tlie assessment of benefits, and, for that reason, deprived them of their property without clue process' of. law. - The court said that the annexation act ivas an instance of the Legislature declaring; a right and referring- to-other existing laws for the¡ remedy, which method of legislation does not' offend against that provision of' the Constitution which declares that “no law shall be revived, amended, or, the provisions thereof extended or .conferred by reference to its title only.” '

The Legislature of 1919 again passed a statute providing for the annexation of territory to improvement districts in cities and towns. Q-en. Acts of 1919, p. 218. This act is § 5733 of Crawford & Moses’ Digest. It read's, in part as follows:

“The finding of the council shall be expressed in an ordinance, in case it is in favor of the petitioners, and in that event the territory sought to. be annexed shall become a part of the improvement district,' and the improvements petitioned for shall be made by the commissioners. The commissioners shall make the assessment for said improvement on the territory annexed under the provisions of this act on the same basis as if said territory was included in the original district.”

This act came -up if or consideration before us in Poe v. Street Improvement District No. 340, 159 Ark. 569, 252 S. W. 616. It was there contended that the act was ia reference statute and violative of the clause of the State Constitution just referred to. The reason for the constitutional provision ■ in' question was that-a legislative act which purports-only to- insert certain words or to-substitute one phrase -for another is calculated to confuse1 and mislead. An act, however, which is complete in itself and by its language grants some power, is not in conflict with “the constitutional provision, although it may refer to some other existing-statute f.or the purpose of pointing-out the procedure in executing the power. Hence it was said' that the annexation act of 1919 was not violative of this provision of the Constitution because it referred to the act relating to the formation of original improvement districts for the carrying out of the power conferred by the annexation act. It was pointed out that the annexation act was not a reference act, and, because of the fact that provision is made in the statute referred to for the landowners to have a hearing upon the assessment of benefits, the annexation act is not in violation of the State or Federal Constitution.

In the Poe case just referred to the court used this language:

“In other words, when the territory is annexed under the provisions of act No. 280 (5733 supra), then the improvements in the annexed territory are to be made by the commissioners of the district according to the provisions relating to municipal improvement districts as contained in §§ 5656-5701 of Crawford & Moses’ Digest. These provisions meet all the objections enumerated in the complaint and urged by learned counsel for the appellant in their brief to the statute under review as not constituting due process. They afford ample protection to the property owners of the annexed territory.”

Again, the court said:

“The appellant contends that, under the doctrine of these cases, the act under review is likewise void. But not so, because this act does make provision for the assessment of benefits in the annexed territory, under the same provisions of law as are applicable to the territory in the original district. The act contemplates that the commissioners, after the territory is annexed, shall cause the assessors of the district to make the assessment for the improvement of the territory annexed on the same basis as the original territory was assessed. This act does not have the effect of creating a new district, but only annexes territory to the original district and makes such territory, when so annexed, a part of the original district, and provides- for the assessment of benefits in the annexed territory according to the provisions of the law applicable to the territory in the original district. Where such is the case, it cannot be said that no provision is made for the assessment of benefits in the territory annexed. McCord v. Welch, 147 Ark. 363, 227 S. W. 765.

The language used by the court in the eases in construing both the annexation act of 1909 and , that of 1919 shows that the court had in mind that the due process clause of the State or of the Federal Constitution was not violated because the annexation act intended that the assessment of benefits should be made under the provisions of the statute relating to the formation of original improvement districts, and that this statute affords the landowners ample opportunity to have a review of the assessment of benefits made by the board of assessors.

After due consideration of the whole matter, we are of the opinion that the language quoted above from § 5733 of the Digest does not mean that the board of commissioners of the original district must make the assessment of benefits for the annexation district. If the language' quoted should be given this restricted and literal interpretation, it is evident «that no provision would be afforded the landowners for review of the assessments^ If it should be said that it was the intention of the lawmakers that the provision of the statute relating to the formation of improvement districts iii the beginning-should apply to the annexation of territory to the original district, then it would be more in conformity with their intention to say that the annexation statute intended to apply the whole of the act relating to the. assessment of benefits for the original district to the annexation district. There is nothing in § 5733 from which it might be inferred that the framers of the statute intended that the' commissioners should make the assessment, but they should.be governed by the statute relating to the original formation of districts in so far as obtaining a review of the assessments of benefits for the landowners. We think it is more in accord with our previous decisions and with the intention of the lawmakers to hold that the language quoted from § 5733 means that the commissions shall1 cause the assessment- of benefits for said annexation improvement to be made on the same basis as if said territory was included in the original district. In other Avords, it meant that the commissioners of the district should cause the property in the annexation district to he assessed by the same instrumentality and in the same Avay that property was assessed in the original district.' Under the statute relating to the formation of improvement districts, provision is made for revision of assessments by the board of assessors upon the requirement of the commissioners. Crawford & Moses ’ Digest, § 5664. [

No provision of the statute, however, provides for the retention of the board of assessors in office for any other purpose. In the case at bar the city council appointed a new board of assessors to make the assessment for the Marshall Street Annex. It is presumed that they did this with the knowledge that the board of assessors for the original district had finished its work and was no longer in existence. Under § 5657 of. Crawford & Moses’ Digest, as soon as the board of improvement shall have formed its plan and shall have-ascertained the cost of the improvement, it shall report the same to the city or town council, which shall appoint three electors of-the city or town, who shall constitute a board of assessment of the benefits to be received by the land in the district. In like manner it is contemplated that, when plans for the annexation district are formed by' the commissioners, the council would have power to appoint a new board of assessors to make an assessment for the annexation district if it should find that the old board had finished the original assessment, and its action in the matter will not be reviewed. The conclusive presumption is that it considered that the old board of assessors had performed its function and had ceased to exist, except for the purpose of. revision under § 5664. Hence the city council had the authority to appoint a new board, and the assessment of benefits made by the new board Avould be valid and binding in the absence of a showing that it was arbitrarily made or was subject to review for inequality, or is confiscatory or tlie like.

Our conclusion of the whole matter is that the chancellor erred, under the facts presented by this record, in holding that the assessment of benefits made by Alley, Wells and Laird should be vacated. It follows therefore that the decree upon the cross-appeal must be reversed, and the case will be remanded with directions to dismiss the complaint for want of equity. It is so ordered.


author: Smith, J.

text:
    Cole Furniture Company v. Jackson.
    Opinion delivered June 27, 1927.
    1. Judgment —conclusiveness op prior judgment. — Where an adverse judgment has been rendered against lessees holding under written and verbal leases in an unlawful detainer case, such lessees could not in a subsequent suit litigate their rights in the property by reason of the erection of buildings on the premises, since these rights were necessarily within the issues and might have been litigated in the former suit.
    2. Appeal and error — conclusiveness of verdict. — The verdict of the jury on conflicting evidence is conclusive.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    affirmed.

      John 8. Mo.sby, for appellant.

      8. A. Gooch and Killouyh, Killouyh & Killouyh, for appellee.
   Smith, J.

On January 1,1914, E. J. Jackson entered into a coutract of lease with H. L. and S. W. Cole, who were partners, doing business as the Cole Furniture Company. The lease covered lot 11 in block B of the town of Trumann, and it was there agreed that the. Cole brothers, as lessees, should erect a business house on the lot and pay a monthly rental of $20, and should have the right to use and occupy the building for the period of ten years, at the end of which time the lessees were to surrender possession of the building. The lessees erected a building, and, after occupying it for- about three years, they entered into a verbal contract with Jackson under which they erected several smaller business houses. The terms of the contract under which these last and smaller buildings were erected are in dispute. The lessees insist that the contract provided that they should have the free use of these buildings until the termination of the original written lease, and, at the end of that time, should be paid the salvage value of the buildings. The lessees defaulted in the payment of the rent, and an unlawful detainer suit 'was brought by the lessor to recover possession. A judgment was rendered in that case, which recites that the defendants announced not ready for trial, but that a jury was impaneled, and, after testimony was offered, a verdict was returned in favor of the plaintiff lessor for the possession of the property and for $855.12 as rent.

Later this suit was brought by the Cole Furniture Company, and the complaint alleged their version of the contract under Avhich the additional buildings had been erected, and at the trial they offered testimony tending to sustain these allegations. Testimony was offered by Cole Brothers that Jackson had bought certain furniture at another store owned by them at Parkin, Arkansas, and that Jackson had failed to credit the purchase price thereof on the account between the parties. This was denied by Jackson. •

At the conclusion of all the testimony the court ruled, in effect, that the judgment in the first suit was conclusive of all the issues in controversy except the'purchase piice of the furniture, and the jury was directed to find for the plaintiff for the purchase price of the furniture, unless it was found that the account had been paid and settled, and that the^burden was on the defendant to show payment. A verdict was returned in favor of the defendant, and judgment was rendered accord-' ingly, and this appeal is from that judgment.

Several questions are raised which we find it unnecessary to discuss. The court correctly held that the first judgment was conclusive of the rights of the parties under both the written and verbal leases. As the lessees might have litigated their rights to the lot and the property thereon in the unlawful detainer case, they are barred by the judgment there rendered from litigating them in the second case. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 684, 290 S. W. 577.

The lessees cannot, in a subsequent case, litigate matters which were necessarily within the issues pre sented in the first case. Nothing remained which was not concluded by the judgment in the first case, except the sale of the furniture, and the verdict of the jury at the trial from which this appeal comes is conclusive of that question.

As no error appears, the judgment must be affirmed, and it is so ordered.