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(248 S.W.) of his stock not to engage in the same business again in the same city as the corpora- WILSON et al. V. CHISHOLM. (No. 210.) tion wbich purchased his stock. Assuming

(Supreme Court of Arkansas. March 5, 1923.) (without deciding the question) that a contract in partial and reasonable restraint of 1. Taxation Ouw697 (4)-One possession trade, such as a covenant not to engage in claiming title in good faith under void donaa particular business within a designated tion certificate may redeem from tax .fore

closure sale. territory, is assignable, still we do not think that the contract in question is valid under

One going into possession of, and claining the particular facts and circumstances in title to, land in good faith under a void dona

tion certificate may redeem it from a tax forethis case, as shown by the record.

closure sale under Act March 12, 1881 (Acts According to the testimony of Crabtree, 1881, p. 63), as against any one other than the which is corroborated by that of Moore, he true owner. made and executed the contract for the sale 2. Taxation 810(1)-Persons paying taxes of his stock to tue corporation which issued and holding uninterrupted possession pre. it before he made or assigned the contract

sumed to have redeemed from overdue tax

foreclosure sale. not to engage again in the transfer business in the city of Ft. Smith. His sale of the

Where one, who went into possession of stock was completed on the evening of June land in good faith under a void donation cer

tificate in 1882, made the necessary improve23, 1914. This is shown by the minutes of ments to procure a donation deed in 1881, the board of directors of the corporation and his successors in title paid the taxes held on that evening and nothing is shown which were assessed to them each year, beginof any agreement on Crabtree's part not to ning with those for 1885, and held actual, peaceagain engage in the same business. It is ful, and uninterrupted possession, it will be true that the stock was not delivered to the presumed that one of them redeemed the land

from an overdue tax foreclosure sale in 1883 corporation or the notes of the corporation before the issuance of a patent based thereon delivered to Crabtree until the next inorning. in 1919, though they were not absolute owners, This occurred, however, because the stock of a mere possessory right being sufficient. Crabtree had been deposited in the bank as collateral security. The stock was delivered Appeal from Union Chancery Court; J. Y. to the corporation by Crabtree and the notes Stevens, Chancellor. of the corporation were delivered to Crab Suit by J. Chisholm against T. E. Wilson tree for the stock before anything was said and others. Decree for plaintiff, and defendto Crabtree about making an agreement not ants appeal. Affirmed. to engage again in the business. Crabtree

Joe Joiner, of Magnolia, for appellants. at first declined to sign the agreement, but, Marsh & Marlin, of El Dorado, for appelupon the representative of the corporation in- lee, sisting on it, he did sign it, but received no consideration for so doing. His testimony in

HUMPHREYS, J. Appellee, J. Chisholm, this respect is corroborated by that of o. c. instituted suit in the Union chancery court Moore. Hence the chancellor was warranted against appellants to cancel a state deed to in finding that the contract for the sale of T. E. Wilson for the following described the stock by Crabtree to the corporation and real estate in said county: N. W. 44 section the contract by him with the corporation not 33, township 19 S., range 18 W., and to quiet to engage again in the transfer business in and confirm the title to said real estate in the city of Ft. Smith were separate and dis

him as against said appellants. In the bill tinct contracts, with no consideration for through mesne conveyances from the state of

filed, appellee deraigned his title to said land the latter.

Arkansas, the origin of his alleged title be[3] It was competent to show by parol evi- ing a certificate of donation of date August dence that the two instruments were wholly 19, 1882, and deed issued thereon of date independent and separate agreements, and March 21, 1884, which were based upon an that there was no consideration between the alleged forfeiture of said land to the state parties to support the agreement of Crabtree of Arkansas, for failing to pay the taxes, not to again engage in the transfer business due and assessed for the years 1869 and 1870. in the city of Ft. Smith. Kimbro v. Wells, It was also alleged that appellee, and those 112 Ask, 126, 165 S. W. 645, and Kimbro v. through whom he claimed, had been in the Wells

, 121 Ark. 45, 180 S. W. 342. The chan- actual possession of said land, making imcellor found the issues in this respect in fa- provements thereon continuously since Auvor of the defendant Crabtree, and it can- gust 19, 1882, and had paid the taxes each not be said that his finding of fact is against and every year from and including the year the preponderance of the evidence.

1885, the year following the date of the doIt follows that the decree will be affirmed. I nation deed. CFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

248 S.W.-18

Appellants interposed the defense in an , and uninterrupted possession thereof down answer and cross-petition that the land in to the present time. On December 20, 1919, question was included in an overdue tax pro- the state issued patent for said land to T. Ceeding instituted on July 15, 1882, in the E. Wilson, based upon the overdue tax prochancery court of Union county; that in said ceeding. The record fails to show that suit the alleged forfeiture was declared by James M. Owen or his successors in title the court to be void and of no effect, and ever redeemed the land from the overdue tax that said land be sold for taxes, due and un- foreclosure. paid, for the years 1869 and 1970; that pur [1] The only question presented by this apsuant to said order of sale the land was solu peal is whether the presumption will be inon the 15th day of June, 1883, and that dulged that the land was redeemed from the thereafter the sale was duly confirmed by the overdue tax foreclosure for the taxes of 1869 court; that the donation certificate relied and 1870 by James M. Owen or his successors upon by appellee was issued by the state in title. Appellants take the position that after the institution of said suit, and that James M. Owen and his successors in title the donation deed executed in pursuance had no right to redeem the land, because thereto was delivered prior to the expiration they acquired no interest therein under the of the period of redemption allowed in the donation certificate, and the donation deed Overdue Tax Act of March 12, 1881 (Acts made pursuant thereto. The case of St. 1881, p. 63), under which the overdue tax Louis Refrigerator & Wooden Gutter Co. v. suit aforesaid was instituted; that the lands Langley, 66 Ark. 48, 51 S. W. 68, is cited in were sold and certified to the state in the support of their contention that they acquiroverdue tax suit, and on December 20, 1919, ed no interest whatever in said land under the state issued a patent to appellant, T. E. said certificate and deed. That case does hold Wilson, for said land, based upon the over- | that the state, by purchase at such a sale, acdue tax proceeding; that on December 22, quired no title which the state land com1921, said patent was recorded; that subse missioner had power to convey until after quent thereto T. E. Wilson conveyed said the redemption period expired, and that durland to appellant A. J. Marsh. Appellants ing the pendency of the overdue tax suit the prayed for a dismissal of appellee's bill, and commissioner of state lands had no authorpossession of the land.

ity to issue a donation certificate and deed A demurrer was filed to the answer and based upon a forfeiture of land for the noncross-petition, which was sustained by the payment of taxes, and also that after-acquired court, and, upon failure of appellants to titles had no application to conveyances plead further, the decree was rendered can- made by the state. It is true that James M. celing the state deed to T. E. Wilson and Owen and his successors in title acquired no quieting and confirming the title in appel- interest in the land as against the true owner lee as against appellants. From that decree under the donation certificate, but it served an appeal has been duly prosecuted to this the purpose of showing that he went into court.

possession of the land in good faith, and not The facts, as gleaned from the pleadings, as a squatter or mere trespasser. His posare as follows: The land in question was session and claim of title in good faith concertified to the state under a void forfeiture stituted such an interest in the land as gave of 1869 and 1870. On July 15, 1882, a suit him a right to redeem the land from the was filed in the chancery court of Union sale in the overdue tax foreclosure against county under the Overdue Tax Act of 1881, any one other than the true owner.

It was in which this land was included. On August held, in the cases of Woodward v. Campbell, 19, 1882, the state issued a certificate of do- 39 Ark. 580, and Sanders v. Hill, 42 Ark. nation for said land to James M. Owen. 215, and reaffirmed in the case of Hodges v. James M. Owen took immediate possession Harkleroad, 74 Ark. 343, 85 S. W. 779, thatthereof and made the necessary improvements to procure the donation deed, which perfect or inchoate, in possession or in action,

"Almost any right, either at law or in equity, he obtained on March 21, 1884. During the or whether in the nature of a charge or incumtime of his occupancy it was adjudged in the brance on the land, amounts to such an ownoverdue tax suit that the tax forfeiture to ership as will entitle the party holding it to the state upon which the donation deed was redeem.” based was void and of no effect. The land was thereupon ordered sold for the taxes of [2] The facts in this case bring it well 1869 and 1870 and on June 15, 1883, was sold within the rule of a presumptive redemption under the overdue tax decree to the state, from an overdue tax forfeiture announced in which sale was confirmed by the court. In the cases of Wallace v. Hill, 135 Ark. 353, 1885, after the issuance of the donation deed 205 S. W. 699, and Lloyd v. Thornton, 147 to James M. Owen, the land was assessed to Ark. 247, 227 S. W. 396. Appellants insist James M. Owen, and he and his successors that the rule in those cases relates to real in title paid the taxes each and every year owners only, and that a redemption will not on said land after and including the taxes for be presumed in favor of any other than abso

(248 S.W.) this contention. Those cases had in mind, Texarkana office purchased from appellants, siedemption laws, when they used the word who were engaged in the mercantile business "owner," and used it as a generic term, em- at the town of Foreman, Little River county, bracing eren a possessory right. The trial 809 bales of cotton to be delivered at the court was correct in indulging a presumption compress at Hope, Ark. The agreed price that James M. Owen or his successors in title for the cotton was 3042 cents per pound, the redeemed the land from the overdue tax price to be paid in advance on the basis of foreclosure before appellant T. E. Wilson what the parties termed "country weights," procured a patent to said land from the that is to say, the book weights kept by the state.

appellants, and there was to be a final setThe decree is therefore affirmed.

tlement according to the compress weights. The cotton was in damaged condition on account of exposure to weather, and it was agreed that the cotton was to be "condition

ed," that is to say, the bagging and ties were HAWKINS BROS. V. LESSER-GOLDMAN to be removed and the damaged cotton reCOTTON CO. (No. 186.)

moved, appellants to pay th cost of labor,

and that the “pickings," that is to say, the (Supreme Court of Arkansas. Feb, 26, 1923.) damaged cotton, removed were to be taken by 1. Trial Coll(2) - Action held one to sur. appellee at the highest prices paid at that charge account and within equity jurisdic- time for such cotton. tion,

The gross weight of the cottton, as inAn action to recover an additional amount voiced by appellants, was 427,075 pounds, alleged to be due on an account already stated and appellee paid for the cotton in advance and settled held an action to surcharge the set on the basis of that weight. The cotton was tlement on account of fraud and to recover the shipped to Hope as agreed, and was there amount alleged to be actually due, and, as such, "conditioned" and repacked, and on January one within at least the concurrent jurisdiction of an equity court, in view of Crawford & Mo. 30, 1919, appellee furnished to appellants an ses' Dig. $ 1045, permitting the transfer to itemized statement of the amount of cotton chancery courts where "all the issues are such according to the compress weights aggregatas heretofore were cognizable in chancery, ing 422,689 pounds, which, at the stipulated though none were exclusively so," rather than price of the cotton, made a debit of $1,337.73 one merely to recover damages for deceit. against appellants. Another statement fur2. Account stated 19(1)-Plaintiff, seeking nished on the same date showed the cost to surcharge account stated, has burden. of labor of handling the damaged cotton, the

In an action to surcharge an account stat- price of the bagging, and also the weights ed and settled, and recover a balance, the bur- of the pickings at 13,661 pounds, and the den is on plaintiff to impeach the accounts al- price at 442 cents aggregating $614.74, which ready furnished and accepted.

amount was credited to appellants after 3. Account stated Paw 8-Agreement on price of charging them with the cost of handling, damaged cotton held binding in subsequent leaving a credit of $S5.69. Appellants imaction to surcharge account stated.

mediately repaid the amount due to appellee Where in settling an account a price is according to these statements, but later agreed upon for certain damaged cotton, those claimed that they had received information accepting such price are bound thereby, and that the compress weights of the cotton were cannot afterward object to it in an action to falsely understated in the account furnished surcharge the account stated and settled.

to appellants, and that the price of the pickAppeal from Little River Chancery Court; ings should have been 9 cents a pound inJas. D. Shaver, Chancellor.

stead of 412 cents.

After communications between the parAction by Hawkins Bros. against the Les- ties, extending over a period of several ser-Goldman Cotton Company. From a judg- months, appellants instituted this action in ment for defendant, plaintiff's appeal.


the circuit court of Little River county to

recover on account of the alleged false repPaul Jones, Sr., and Jas. D. Head, both of resentations the additional amount claimed Texarkana, for appellants.

for the price of the cotton. C. E. Johnson and A. D. Dulaney, both of It is alleged in the complaint that appelAshdown, for appellee.

lee's agents misrepresented to appellants the

amount of the weights, and, instead of their McCULLOCH, C. J. Appellee, a foreign being a shortage of 4,356 pounds in the corporation with its principal place of busi- weights as shown in the statement furnished ness at St. Louis, is engaged in the cotton to appellants, there was, in fact, a gain of business, and has branch offices at various 1,277 pounds, and that appellants were enpoints in Arkansas, including Texarkana, and titled to recover the sum of $1,728.16 on this on December 23, 1918, appellee, through its account, as well as an additional sum

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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account of the difference in the price of the | are of the opinion that the evidence preponpickings, making a total of $2,020.95 sought | derates in favor of the findings of the chanto be recovered.

cery court. The burden was on appellants to Appellee answered the complaint, denying successfully impeach the accounts furnished all the allegations with respect to the false by appellee and accepted by appellants. representations concerning the weights of They offered no direct testimony as to the the cotton, and also denying the allegations correct weights of the cotton, but the testiwith respect to the price to be paid for pick- mony they introduced merely tended to show ings.

that the weights had not been correctly stated. There was a cross-complaint, in which it On the other hand, appellee adduced direct was alleged that there was even a greater testimony by at least two witnesses that the loss than that set forth in the statement, as weights furnished were correct. subsequently ascertained, and there was a [3] As to the issue concerning the price prayer for the recovery of the additional of the pickings, there was also testimony amount of $250 from appellants.

preponderating in favor of the finding of Appellee also moved to transfer the cause the chancellor. Appellants admitted that to the chancery court, which was done over at the time a settlement was made for appellants' objections. On final bearing of the pickings the price offered by appellee the cause, the court dismissed the complaint was discussed, and at first objection was and also the cross-complaint, and appellee made to it, but the price was finally accepted accepted the decree and has not cross-ap- and settlement was made accordingly. Aftpealed.

er acceptance of the price under those cir[1] It is first insisted that the chancery cumstances, it is too late for appellants to court is without jurisdiction, that the cir- object that the price was insufficient. They cuit court erred in transferring the cause, knew then all that they know now concerning and that the chancery court erred in refusing the price of the pickings, and the acceptance to remand it. The contention is that the of the price offered by appellee was binding action is nothing more nor less than one to on the parties. recover damages on account of alleged fraud Our conclusion is that the decree is supand deceit, and that the remedy at law is ported on both branches of the case by suffiadequate.

cient testimony, and it is therefore affirmed. According to the pleadings in the case, to which we must look for the purpose of determining the jurisdiction of the court and in testing the correctness of the court's ruling in transferring the cause to equity, there

WELLS v. McKAY et al. (No, 200.) was an account stated between the parties and settled, and this is an action to sur

(Supreme Court of Arkansas. March 5, charge that settlement on account of fraud

1923.) and to recover the amount alleged to be actually due. It is not merely a case to recover Principal and agent Om 100(2)-Power of at. damages on account of deceit, as in case, for torney held not to authorize the renting of instance, where a sale of property is induced

land; "do anything that may seem best in

the premises." by fraud. The correction of accounts stated and settlement thereof for fraud or mistake

In an action by purchasers of leased prem

ises against the tenant to recover possession, is within the original common-law jurisdic- the tenant claiming to hold under an agreetion of courts of chancery. It is unneces- ment executed by the vendor's attorney in fact, sary to determine whether or not the juris- held, that the power of attorney under which diction of the chancery court is exclusive, for he acted was insufficient to authorize him to undoubtedly the jurisdiction is, at least con- rent the land, where it merely gave him aucurrent, and under our statute it is proper thority to collect rent, sell crops and growing to transfer a cause from the law court to the timber, make all settlements concerning the chancery where “all of the issues are such property, pay the taxes, bring suit to protect

title, or "do any other thing that may seem to as heretofore were cognizable in chancery, him best in the premises"; the quoted words though none were exclusively so." Crawford merely referring to the doing of anything that & Moses' Digest, $ 1045.

might be necessary to effectuate the particuThe only issue related to the alleged fraud lar acts of authority previously expressed. in the account furnished to appellants by appellce, and, as we have seen that this was at

Appeal from Circuit Court, Mississippi least within the concurrent jurisdiction of County; W. W. Bandy, Judge. the chancery court, the case was properly transferred to that court.

Action by Virgil McKay and others against [2] The evidence was to some extent con- Sam Wells. Judgment for plaintiffs on a flicting as to the correct weights of the cot-directed verdict, and defendant appeals. Af-. ton when reweighed at the compress, but wel firmed.

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(248 S.W.) Davis, Costen & Harrison, of Blytheville, , correspondence. The deed was brought to for appellant.

the appellees by F. M. Allee, and the appelR. A. Nelson, of Blytheville, for appellees. lees paid to him the consideration for the

land. The appellees knew that the appellant WOOD, J. This action was instituted by was in possession at the time they purchased the appellees against the appellant to recover the land and made it a condition of the sale the possession of a certain tract of iand in that Mrs. Stacy deliver possession to them. Mississippi county. The appellees alleged The testimony of Mrs. Stacy was to the that appellant rented the land for the year effect that she did not authorize Allee or any 1919 and took possession thereof and culti- one else to rent the land to the appellant for vated the same for that year, and that his the year 1920, and that he had no contract rent contract expired January 1, 1920, but with her to rent the land that year. that appellant refused to surrender posses The testimony on the part of the appellant sion although duly notified in writing so to showed that Allee collected the rents from do. The appellant answered denying that he the lands and directed the improvements that unlawfully retained the premises, but set up were made on the lands by the appellant that he was holding the same under a writ- while he was occupying the same. ten contract with the owner executed by her Upon the above facts the court directed a attorney in fact, which contract he sets out verdict in favor of the appellees. Judgment and makes an exhibit to his answer, the ma- was entered in accordance with the verdict, terial part of which is as follows:

from which is this appeal. "I hereby authorize the said Sam Wells

The only question on this appeal is whether to gather and market the third of the corn

or not Allee had authority under the power and the fourth of the cotton if he should deem of attorney in evidence to rent the land for it best to do so. I have also agreed that he the year 1920. The court correctly construed shall have the place for 1920, on the same the power of attorney as not giving Allee any terms be now holds it, or if we later agree to a such authority. The authority conferred upmoney rent, he shall have the place for $8.00

on Allee is clearly expressed in the instruper acre."

ment, and nowhere in it do we find that he is The undisputed testimony shows that the given the authority to rent the land. His appellant on September 17, 1919, entered in- authority is to collect rent, sell crops and to a written contract for the rent of the land growing timber, make all settlements con. in controversy for the year 1920 with F. M. cerning the property, pay the taxes, bring Allee, who signed the same as "Attorney in suit to protect the title, or "do any other . Fact for Mrs. Abigail Stacy." The authority thing that may seem to him best in the premof Allee is contained in a power of attorney ises." signed. by Mrs. Stacy, which constitutes Allee The words, "do any other thing that may ber attorney in fact and prescribed his au seem to him best in the premises," do not thority as follows:

confer a general authority upon Allee to do For the purpose of collecting my anything not connected with the particular rent, and selling any or all crops of any de- acts of authority previously designated. scription or making disposition of the same, These words refer to the doing of anything and that any act or acts done by my said that may be necessary to effectuate the particattorney I hereby ratify and confirm the same ular acts of authority previously expressed. by these presents.

And he, my said The objects of the power conferred upon Alattorney, is lawfully authorized and employed lee having been definitely expressed, the into make any and all settlements concerning the same property, or any interest therein, instrument cannot be construed to include othmy name, or do any and all things that I could er powers and objects not connected with do

, pay the taxes, or bring any suit to protect these specifically mentioned. See Welch v. the title to the same, or do any other thing McKenzie, 66 Ark. 256-258, 50 S. W. 505. As that may seem to him best in the premises. we construe the instrument, it does not conTo sell or contract for the sale of the growing fer authority upon Allee to act generally in timber on said farm

(describing same). *. Said attorney, to have full power to all matters concerning the land in controto anything whatsoever requisite and necessary versy, but only the authority to act in the to be done in the premises as fully as I could particulars mentioned, which, as we have do if personally present, with full power of said, nowhere mentions authority to rent. substitution and revocation, hereby ratifying See + Elliott on Contracts, $ 2868. Therefore and confirming all that F. M. Allee, or his Allee exceeded his authority in renting the substitute, said attorney, shall do or cause to be done by virtue hereof."

land to the appellant for the year 1920. The

facts do not warrant the inference that Mrs. Soon after the rent contract was entered Stacy was estopped from challenging the auinto

, the appellees purchased from Mrs. Abi- thority of her agent to rent the land. Appelgail Stacy, as evidenced by her warranty lant, therefore, in renting the land for the deed of October 19, 1919, the land in contro- year 1920 dealt with Allee at his peril. See versy. The negotiations for the purchase of | U. S. Bedding Co. v. Andre, 105 Ark. 111, 150 the land were conducted with Mrs. Stacy by S. W. 413, 41 L. R. A. (N. S.) 1019, Ann. Cas.

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