Ark.) (248 S.W.) of his stock not to engage in the same busi ness again in the same city as the corpora- WILSON et al. v. CHISHOLM. (No. 210.) tion which purchased his stock. Assuming (Supreme Court of Arkansas. March 5, 1923.) (without deciding the question) that a contract in partial and reasonable restraint of trade, such as a covenant not to engage in a particular business within a designated territory, is assignable, still we do not think that the contract in question is valid under the particular facts and circumstances in this case, as shown by the record. in possession 1. Taxation 697 (4)—One claiming title in good faith under void donation certificate may redeem from tax ⚫foreclosure sale. One going into possession of, and claiming title to, land in good faith under a void donation certificate may redeem it from a tax foreclosure sale under Act March 12, 1881 (Acts 1881, p. 63), as against any one other than the true owner. 2. Taxation 810(1)-Persons paying taxes and holding uninterrupted possession presumed to have redeemed from overdue tax foreclosure sale. Where one, who went into possession of land in good faith under a void donation certificate in 1882, made the necessary improvements to procure a donation deed in 1884, and his successors in title paid the taxes which were assessed to them each year, beginning with those for 1885, and held actual, peaceful, and uninterrupted possession, it will be presumed that one of them redeemed the land from an overdue tax foreclosure sale in 1883 before the issuance of a patent based thereon in 1919, though they were not absolute owners, a mere possessory right being sufficient. According to the testimony of Crabtree, which is corroborated by that of Moore, he made and executed the contract for the sale of his stock to the corporation which issued it before he made or assigned the contract not to engage again in the transfer business in the city of Ft. Smith. His sale of the stock was completed on the evening of June 23, 1914. This is shown by the minutes of the board of directors of the corporation held on that evening and nothing is shown of any agreement on Crabtree's part not to It is again engage in the same business. true that the stock was not delivered to the corporation or the notes of the corporation delivered to Crabtree until the next inorning. This occurred, however, because the stock of Crabtree had been deposited in the bank as collateral security. The stock was delivered to the corporation by Crabtree and the notes of the corporation were delivered to Crabtree for the stock before anything was said to Crabtree about making an agreement not to engage again in the business. at first declined to sign the agreement, but, upon the representative of the corporation insisting on it, he did sign it, but received no HUMPHREYS, J. Appellee, J. Chisholm, consideration for so doing. His testimony in 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. 1⁄4 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 the latter. Crabtree Appeal from Union Chancery Court; J. Y. Stevens, Chancellor. Suit by J. Chisholm against T. E. Wilson and others. Decree for plaintiff, and defendants appeal. Affirmed. Joe Joiner, of Magnolia, for appellants. Marsh & Marlin, of El Dorado, for appellee. filed, appellee deraigned his title to said land through mesne conveyances from the state of 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 Ark. 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 do It follows that the decree will be affirmed.nation deed. For 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 answer and cross-petition that the land in question was included in an overdue tax proceeding instituted on July 15, 1882, in the chancery court of Union county; that in said suit the alleged forfeiture was declared by the court to be void and of no effect, and that said land be sold for taxes, due and unpaid, for the years 1869 and 1870; that pursuant to said order of sale the land was sold on the 15th day of June, 1883, and that thereafter the sale was duly confirmed by the court; that the donation certificate refíed upon by appellee was issued by the state after the institution of said suit, and that the donation deed executed in pursuance thereto was delivered prior to the expiration of the period of redemption allowed in the Overdue Tax Act of March 12, 1881 (Acts 1881, p. 63), under which the overdue tax suit aforesaid was instituted; that the lands were sold and certified to the state in the overdue tax suit, and on December 20, 1919, the state issued a patent to appellant, T. E. Wilson, for said land, based upon the overdue tax proceeding; that on December 22, 1921, said patent was recorded; that subsequent thereto T. E. Wilson conveyed said land to appellant A. J. Marsh. Appellants prayed for a dismissal of appellee's bill, and possession of the land. A demurrer was filed to the answer and cross-petition, which was sustained by the court, and, upon failure of appellants to plead further, the decree was rendered canceling the state deed to T. E. Wilson and quieting and confirming the title in appellee as against appellants. From that decree an appeal has been duly prosecuted to this court. The facts, as gleaned from the pleadings, are as follows: The land in question was certified to the state under a void forfeiture of 1869 and 1870. On July 15, 1882, a suit was filed in the chancery court of Union county under the Overdue Tax Act of 1881, in which this land was included. On August 19, 1882, the state issued a certificate of donation for said land to James M. Owen. James M. Owen took immediate possession thereof and made the necessary improvements to procure the donation deed, which he obtained on March 21, 1884. During the time of his occupancy it was adjudged in the overdue tax suit that the tax forfeiture to the state upon which the donation deed was based was void and of no effect. The land was thereupon ordered sold for the taxes of 1869 and 1870 and on June 15, 1883, was sold under the overdue tax decree to the state, which sale was confirmed by the court. In 1885, after the issuance of the donation deed to James M. Owen, the land was assessed to James M. Owen, and he and his successors in title paid the taxes each and every year on said land after and including the taxes for the year 1885, and held the actual, peaceful, and uninterrupted possession thereof down to the present time. On December 20, 1919, the state issued patent for said land to T. E. Wilson, based upon the overdue tax proceeding. The record fails to show that James M. Owen or his successors in title ever redeemed the land from the overdue tax foreclosure. [1] The only question presented by this appeal is whether the presumption will be indulged that the land was redeemed from the overdue tax foreclosure for the taxes of 1869 and 1870 by James M. Owen or his successors in title. Appellants take the position that James M. Owen and his successors in title had no right to redeem the land, because they acquired no interest therein under the donation certificate, and the donation deed made pursuant thereto. The case of St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, 51 S. W. 68, is cited in support of their contention that they acquired no interest whatever in said land under said certificate and deed. That case does hold that the state, by purchase at such a sale, acquired no title which the state land commissioner had power to convey until after the redemption period expired, and that during the pendency of the overdue tax suit the commissioner of state lands had no authority to issue a donation certificate and deed based upon a forfeiture of land for the nonpayment of taxes, and also that after-acquired titles had no application to conveyances made by the state. It is true that James M. Owen and his successors in title acquired no interest in the land as against the true owner under the donation certificate, but it served the purpose of showing that he went into possession of the land in good faith, and not as a squatter or mere trespasser. His possession and claim of title in good faith constituted such an interest in the land as gave him a right to redeem the land from the sale in the overdue tax foreclosure against any one other than the true owner. It was held, in the cases of Woodward v. Campbell, 39 Ark. 580, and Sanders v. Hill, 42 Ark. 215, and reaffirmed in the case of Hodges v. Harkleroad, 74 Ark, 343, 85 S. W. 779, that "Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the land, amounts to such an ownership as will entitle the party holding it to redeem." [2] The facts in this case bring it well within the rule of a presumptive redemption from an overdue tax forfeiture announced in the cases of Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, and Lloyd v. Thornton, 147 Ark. 247, 227 S. W. 396. Appellants insist that the rule in those cases relates to real owners only, and that a redemption will not be presumed in favor of any other than absolute owners. We cannot agree with them in (248 S.W.) this contention. Those cases had in mind Texarkana office purchased from appellants, who were engaged in the mercantile business at the town of Foreman, Little River county, 809 bales of cotton to be delivered at the compress at Hope, Ark. The agreed price for the cotton was 302 cents per pound, the price to be paid in advance on the basis of what the parties termed "country weights," that is to say, the book weights kept by the appellants, and there was to be a final settlement 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 "conditioned," that is to say, the bagging and ties were to be removed and the damaged cotton removed, appellants to pay the cost of labor, and that the "pickings," that is to say, the damaged cotton, removed were to be taken by appellee at the highest prices paid at that The decree is therefore affirmed. HAWKINS BROS. v. LESSER-GOLDMAN COTTON CO. (No. 186.) (Supreme Court of Arkansas. Feb. 26, 1923.) tion. An action to recover an additional amount alleged to be due on an account already stated and settled held an action to surcharge the settlement on account of fraud and to recover the amount alleged to be actually due, and, as such, one within at least the concurrent jurisdiction of an equity court, in view of Crawford & Moses' Dig. § 1045, permitting the transfer to chancery courts where "all the issues are such as heretofore were cognizable in chancery, though none were exclusively so," rather than one merely to recover damages for deceit. 2. Account stated 19(1)—Plaintiff, seeking to surcharge account stated, has burden. In an action to surcharge an account stated and settled, and recover a balance, the burden is on plaintiff to impeach the accounts already furnished and accepted. The gross weight of the cottton, as invoiced by appellants, was 427,075 pounds, and appellee paid for the cotton in advance on the basis of that weight. The cotton was shipped to Hope as agreed, and was there "conditioned" and repacked, and on January 30, 1919, appellee furnished to appellants an itemized statement of the amount of cotton according to the compress weights aggregating 422,689 pounds, which, at the stipulated price of the cotton, made a debit of $1,337.73 against appellants. Another statement furnished on the same date showed the cost of labor of handling the damaged cotton, the price of the bagging, and also the weights of the pickings at 13,661 pounds, and the price at 42 cents aggregating $614.74, which amount was credited to appellants after charging them with the cost of handling, leaving a credit of $85.69. Appellants immediately repaid the amount due to appellee according to these statements, but later claimed that they had received information that the compress weights of the cotton were falsely understated in the account furnished to appellants, and that the price of the pickAppeal from Little River Chancery Court; ings should have been 9 cents a pound in 3. Account stated 8-Agreement on price of damaged cotton held binding in subsequent action to surcharge account stated. Where in settling an account a price is agreed upon for certain damaged cotton, those accepting such price are bound thereby, and cannot afterward object to it in an action to surcharge the account stated and settled. Jas. D. Shaver, Chancellor. Action by Hawkins Bros. against the Lesser-Goldman Cotton Company. From a judgment for defendant, plaintiffs appeal. firmed. Af stead of 42 cents. After communications between the parties, extending over a period of several months, appellants instituted this action in 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. C. E. Johnson and A. D. DuLaney, both of Ashdown, for appellee. McCULLOCH, C. J. Appellee, a foreign corporation with its principal place of business at St. Louis, is engaged in the cotton business, and has branch offices at various points in Arkansas, including Texarkana, and on December 23, 1918, appellee, through its for the price of the cotton. It is alleged in the complaint that appellee's agents misrepresented to appellants the amount of the weights, and, instead of their being a shortage of 4,386 pounds in the weights as shown in the statement furnished to appellants, there was, in fact, a gain of 1,277 pounds, and that appellants were entitled to recover the sum of $1,728.16 on this account, as well as an additional sum on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes account of the difference in the price of the pickings, making a total of $2,020.95 sought to be recovered. are of the opinion that the evidence preponderates in favor of the findings of the chancery 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. There was a cross-complaint, in which it was alleged that there was even a greater loss than that set forth in the statement, as subsequently ascertained, and there was a prayer for the recovery of the additional amount of $250 from appellants. that the weights had not been correctly stated. On the other hand, appellee adduced direct testimony by at least two witnesses that the weights furnished were correct. [3] As to the issue concerning the price of the pickings, there was also testimony 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 hearing 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. [1] It is first insisted that the chancery court is without jurisdiction, that the circuit court erred in transferring the cause, and that the chancery court erred in refusing to remand it. The contention is that the action is nothing more nor less than one to recover damages on account of alleged fraud and deceit, and that the remedy at law is adequate. er acceptance of the price under those circumstances, it is too late for appellants to object that the price was insufficient. They knew then all that they know now concerning the price of the pickings, and the acceptance of the price offered by appellee was binding on the parties. Our conclusion is that the decree is supported on both branches of the case by sufficient testimony, and it is therefore affirmed. WELLS v. McKAY et al. (No. 200.) (Supreme Court of Arkansas. March 5, Principal and agent 100 (2)-Power of attorney held not to authorize the renting of land; "do anything that may seem best in the premises." 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 was an account stated between the parties and settled, and this is an action to surcharge that settlement on account of fraud and to recover the amount alleged to be actually due. It is not merely a case to recover damages on account of deceit, as in case, for instance, where a sale of property is induced by fraud. The correction of accounts stated and settlement thereof for fraud or mistake 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 undoubtedly the jurisdiction is, at least concurrent, and under our statute it is proper to transfer a cause from the law court to the chancery where "all of the issues are such as heretofore were cognizable in chancery, though none were exclusively so." Crawford & Moses' Digest, § 1045. The only issue related to the alleged fraud in the account furnished to appellants by appellee, and, as we have seen that this was at least within the concurrent jurisdiction of the chancery court, the case was properly transferred to that court. In an action by purchasers of leased prem he acted was insufficient to authorize him to rent the land, where it merely gave him authority to collect rent, sell crops and growing timber, make all settlements concerning the property, pay the taxes, bring suit to protect title, or "do any other thing that may seem to him best in the premises"; the quoted words merely referring to the doing of anything that might be necessary to effectuate the particular acts of authority previously expressed. Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge. 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 we firmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ark.) WELLS v. MCKAY Davis, Costen & Harrison, of Blytheville, | correspondence. for appellant. The deed was brought to the appellees by F. M. Allee, and the appei R. A. Nelson, of Blytheville, for appellees. lees paid to him the consideration for the WOOD, J. This action was instituted by the appellees against the appellant to recover the possession of a certain tract of iand in The appellees alleged Mississippi county. that appellant rented the land for the year 1919 and took possession thereof and cultivated the same for that year, and that his rent contract expired January 1, 1920, but that appellant refused to surrender possession although duly notified in writing so to do. The appellant answered denying that he unlawfully retained the premises, but set up that he was holding the same under a written contract with the owner executed by her attorney in fact, which contract he sets out and makes an exhibit to his answer, the material part of which is as follows: "I hereby authorize the said Sam Wells to gather and market the third of the corn and the fourth of the cotton if he should deem it best to do so. I have also agreed that he shall have the place for 1920, on the same terms he now holds it, or if we later agree to a money rent, he shall have the place for $8.00 per acre." The undisputed testimony shows that the appellant on September 17, 1919, entered into a written contract for the rent of the land in controversy for the year 1920 with F. M. Allee, who signed the same as "Attorney in Fact for Mrs. Abigail Stacy." The authority of Allee is contained in a power of attorney signed. by Mrs. Stacy, which constitutes Allee her attorney in fact and prescribed his authority as follows: land. The appellees knew that the appellant The testimony of Mrs. Stacy was to the effect that she did not authorize Allee or any one else to rent the land to the appellant for the year 1920, and that he had no contract with her to rent the land that year. The testimony on the part of the appellant showed that Allee collected the rents from the lands and directed the improvements that were made on the lands by the appellant while he was occupying the same. Upon the above facts the court directed a verdict in favor of the appellees. Judgment was entered in accordance with the verdict, from which is this appeal. The only question on this appeal is whether or not Allee had authority under the power of attorney in evidence to rent the land for the year 1920. The court correctly construed the power of attorney as not giving Allee any such authority. The authority conferred upon Allee is clearly expressed in the instrument, and nowhere in it do we find that he is given the authority to rent the land. His authority is to collect rent, sell crops and growing timber, make all settlements concerning the property, pay the taxes, bring suit to protect the title, or "do any other. thing that may seem to him best in the premises." The words, "do any other thing that may seem to him best in the premises," do not confer a general authority upon Allee to do For the purpose of collecting my anything not connected with the particular of authority previously designated. rent, and selling any or all crops of any de- acts 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 particular acts of authority previously expressed. attorney I hereby ratify and confirm the same # * And he, my said The objects of the power conferred upon Alby these presents. attorney, is lawfully authorized and employed to make any and all settlements concerning lee having been definitely expressed, the inthe same property, or any interest therein, instrument cannot be construed to include othSee Welch v. my 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. 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 all matters concerning the land in controversy, but only the authority to act in the particulars mentioned, which, as we have said, nowhere mentions authority to rent. See 4 Elliott on Contracts, § 2868. Therefore Allee exceeded his authority in renting the 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. timber * on said same). farm (describing Said attorney, to have full power to to anything whatsoever requisite and necessary to be done in the premises as fully as I could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that F. M. Allee, or his substitute, said attorney, shall do or cause to be done by virtue hereof." |