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those included in the plat, and that this invalidates the formation of the district."

A very recent case is that of McRaven v. Clancy, reported in 171 S. W. 88. It was there held that the publication of an ordinance establishing an improvement district must be according to the statute, which is mandatory and compliance with which is jurisdictional, so that, one of the lots not being included in the publication, though lots on both sides of it, and owned by the same parties, were included, the district was not

created.

[1] Does the description given measure up to the requirements of the cases quoted? The map filed with the report shows that Big creek runs near, but not to, the corner designated in the call found in the engineer's report, but in the notice as published the

call is to the corresponding corner in the northwest quarter instead of the northeast quarter of the section. If this call controls the description in the published notice, the west half of the northeast quarter and the west half of the northeast quarter and the east half of the northeast quarter, which are embraced within the district, are omitted from the notice. It is urged that there are It is urged that there are two fatal defects in the description, one of these being in the designation of an erroneous corner to which the line should run from the bank of Big creek, and that the other is the designation of a portion of the boundary

in the following terms:

"Thence in a southwesterly direction along the east, south, and west bank of Big creek.

The map accompanying the engineer's report shows the course of Big creek, and if that creek was made the boundary of the dis

trict, the district would include lands lying east, south, and west of the creek, and that part of the description would therefore be reasonably certain if the point was correctly designated to which the boundary line should run from the bank of the creek. But this description does not show from what point the boundary line of the district departs from the bank of the creek, and because of that fact the error in the description of the point to which the line should run is material and fatal. Even though it be assumed that this line should be a straight one, it does not appear from which point on the bank of the creek the line should be drawn, and the point named is more than a half mile from the bank of the creek.

[2] It is settled by the decisions of this court that, in defining the boundaries of a tract of land, where the descriptions given are uncertain and conflicting, distances yield to courses, and courses to monuments. Here neither the course nor the distance from the bank of the creek to the fixed point is given, but, even though they were, they would have to yield to the location of the fixed point.

It is argued that, if the description in question was contained in a private contract between the parties, it would be sufficient, and we are cited to the case of Central Irrigation District v. De Lappe, 79 Cal. 351, 21 Pac. 825, in which the Supreme Court of California appears to take that view. We are not cited to any other case in the excellent briefs filed in this cause, but this case is not in harmony with our own cases on that subject. We are committed to the rule that the description contained in the published notice must be such that the landowner reading it may easily ascertain whether or not his lands are included, and a clear statement of the reason for the rule is contained in appellant's brief Parties to a contract understand the subject with respect to which they are dealing, and any description which with certainty identifies it should be sufficient to bind them by any agreement they make with respect to it. To any proceedings of this which the landowner has. He does not read character notice is the first information the description contained in it with knowledge that his lands are the subject-matter with respect to which the notice is given, and his only information comes from the notice itself; and it is proper that this notice should be such as easily ascertains the subject of the notice. He should not be required

to speculate as between pertinent clauses whether the courts will hold that the one or

the other shall prevail, and he should not be penalized in case he undertakes such speculation for reaching the wrong conclusion.

Counsel for appellees urges that, if the calls

defining the boundaries of this district were read in reverse order, there would be no uncertainty about the point intended to which the line should run from the creek. Even if this be true, that fact would not meet the objections which we have urged. As has been said, the landowner does not know in advance what lands are intended to be improved, and the district in question was defined by numerous calls of direction and distance to various fixed points, and the possibility that the boundary of the district might be correctly known by tracing the calls in reverse order is not sufficient to meet the requirement that a notice be published from which the landowner may easily ascertain whether or not his lands are included.

We conclude, therefore, that the published notice was insufficient because of the error indicated, and that the court was without jurisdiction in all proceedings had subsequent to that date.

The decree will therefore be reversed, and the cause remanded, with directions for the entry of a decree in accordance with this opinion.

SMITH et al. v. MINTER et al. (No. 160.) (Supreme Court of Arkansas. Oct. 11, 1915.)

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VACATION

PRO

In order to vacate a judgment for fraud practiced by the successful party, it is necessary that the defense to the action be sufficiently alleged, and that such defense be adjudged a valid

one.

that the defense to the action be sufficiently alleged, but that it shall be adjudicated that the defense to the action is a valid one, before the judgment is vacated or set aside; the court determining first whether the grounds to vacate exist, and then the validity of the defense alleged.

[2] The court found that all the interested parties had notice and opportunity to make defense, that the parties to the suit "were present each by his attorney of record, with 907-REVIEW-PRE- full power to act, and that the judgment was a subsisting good and valid judgment."

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 752; Dec. Dig. 391.] 2. APPEAL AND ERROR

SUMPTIONS.

In an action to set aside a judgment for fraud on the part of defendants' attorney in confessing it, in the absence of a bill of exceptions, it will be presumed that the court's finding that the attorney was authorized to confess judgment was sustained by the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. 907.]

Appeal from Circuit Court, Benton County; Jos. S. Maples, Judge.

Suit by Adelaide L. Smith and others against W. L. Minter and others to enjoin the collection of a judgment. From a judgment for defendants, plaintiffs appeal. Affirmed.

Testimony could have been introduced show-
ing that the attorney consenting to the judg-
ment was authorized to do so, and if ap-
pellant introduced any testimony tending to
show a valid defense, it was not preserved
by a bill of exceptions, and this court cannot
review the question. In London v. Hutchens,
88 Ark. 467, 114 S. W. 919, the court said:
"The appeal is one from the order refusing to
set aside the dismissal of his proceedings for
vacation of the judgment for want of prosecu-
*** London had proceeded under the
tion. *
* * * The record
statute to have it set aside.
entry indicates that the court had evidence be-
fore it, and the presumption is always indulged,
in the absence of evidence being brought here,
that the evidence would sustain the action of
the court."

In Young v. Vincent, 94 Ark. 115, 125 S.
W. 658, it was said:

"Where the record does not contain the evidence adduced at the trial, 'every intendment is indulged in favor of the action of the trial court, ceptible of proof that could have aided appeland this court will presume that every fact suslee's case was fully established. The salutary rule of law is that every judgment of a court of competent jurisdiction is presumed to be right, unless the party aggrieved will make it appear

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Appellants brought this suit to enjoin the collection of a judgment of the circuit court, rendered against them as sureties on the retaining bond of E. G. Nelson, in an unlawful detainer suit, and asked also for a vacation of the judgment for a fraud, alleging that the attorney for the defendant in the suit had confessed judgment without authority to do so, and that one of the sureties had been released and no judgment taken against her. A demurrer interposed was treated as a motion to transfer, and the cause was accord-affirmatively that it was erroneous.' ingly transferred to the circuit court. tion was then made to dismiss upon the ground that the matter was res adjudicata, and upon a hearing the motion to dismiss was treated as one to vacate the former judgment, and the court held said judgment to be valid, and that no defense was at tempted to be interposed now that did not exist and was known to the parties having the right thereto at the former adjudication. It further adjudged that, since one of the sureties on the bond had been released in the judgment rendered, the others should only be bound to the payment of two-thirds of the judgment, and reduced it accordingly. There

In Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104, the court said:

was no bill of exceptions in the record.

"The motion to vacate the judgment under section 4431 [Kirby's Dig.], supra, was heard on evidence, and, the evidence which the court heard and on which it acted in setting aside the the record, we must presume that every fact judgment in question not being brought into necessary to sustain the finding and judgment of the court was proved that could have been proved."

"In the absence of a bill of exceptions, it will be presumed that the court's findings of fact were based on the evidence, where there is nothing in the record to rebut that presumption." Swing v. Brinkley Car Works & Mfg. Co., 78 Ark. 198, 94 S. W. 54.

The allegations of the answer of the defendant, Nelson, in the first suit are not W. N. Ivie, of Rogers, for appellants. Ap- proof of the facts therein set up, and, as alpellees, pro se.

KIRBY, J. (after stating the facts as above). [1] Appellants contend that the court erred in refusing to vacate the judgment and insist that the allegations to the complaint were sufficient and that a good defense was shown to exist. In order to vacate a judgment for fraud practiced by the successful party obtaining it, it is necessary, not only

ready said, the court in this proceeding found that the judgment attempted to be vacated was valid and subsisting, and that the attorney confessing it had authority to do so, and it must be presumed, in the absence of a bill of exceptions, that the court's findings of fact were based on the evidence; there being nothing in the record to rebut that presumption.

The judgment is accordingly affirmed.

ST. LOUIS & S. F. R. CO. v. STATE. (No. 149.)

(Supreme Court of Arkansas.

Oct. 4, 1915.) 1. RAILROADS 9-RAILROAD COMMISSION

ORDER-PETITION-SUFFICIENCY.

An order of the Railroad Commission of Arkansas, based upon a petition signed by 17 corporations and partnerships and 1 natural person, requiring one railroad to establish a connection with another is void, as not being signed by 15 bona fide citizens residing within the territory affected, within the direct terms of Acts 1907, p. 357, § 1, since "bona fide citizens," as there used, means permanent residents, as distinguished from mere sojourners, and refers to individuals, to the exclusion of corporations and copartnerships.

9.]

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. 2. CITIZENS 2-CORPORATION.

A "citizen" ordinarily means only a natural person, and will not be construed to include a corporation, unless the general purpose and import of the statute in which the term is found seems to require it (quoting Words and Phrases, Citizen).

[Ed. Note. For other cases, see Citizens, Cent. Dig. §§ 1, 13-16; Dec. Dig. 2.] 3. RAILROADS 9 RAILROAD COMMISSIONSTATUTE-CONSTRUCTION.

It being presumed that the petition would not be signed without consideration of its proposed demands, the word "citizen" will not be construed to include corporations, in the absence of a provision in the act creating a means by which the assent of a corporation may be evi

tition for such order, signed by 15 bona fide citizens residing within the territory affected by the petition was ever filed, and as we agree with appellant in this contention we have found it unnecessary to consider any of the other defenses set out in the an

swer.

Appellant's demurrer was overruled, but upon the trial before the court sitting as a jury considerable evidence was offered, at the conclusion of which the court found appellant guilty as charged, and this appeal is prosecuted from the judgment, of the court imposing a fine against appellant.

[1] It is conceded by counsel for the state that, although there are 18 names signed to the petition, all these signers are corporations and copartnerships, except one; but it is argued that the provisions of the statute in regard to the number of signers is directory, and that the statute was substantially complied with when 15 names of individuals, corporations, and copartnerships were signed to the petition. Section 1 of Act 149 of the Acts of 1907, under which the Railroad Commission proceeded in making the order in question, provides that the Commission shall be empowered to hear and consider all petitions for train service, depots, stations, spurs, side tracks, platforms, and the establishment, enlargement, equipment, and discontinuance of the same upon the right of way of any railroad in this state: Provided, said petitions shall be signed by at least 15 bona fide citizens residing in the territory sought to be affected by said petitioners. In the case of St. Louis, I. M. & S. R. Co. v. Bellamy, 113 Ark. 384, 169 S. W. 322, it was decided that a petition "signed by at least 15 bona fide citizens Moore, Smith, Moore & Trieber, of Little residing within the territory sought to be Rock, W. F. Evans, of St. Louis, Mo., and B. affected by said petition' is essential to give R. Davidson, of Fayetteville, for appellant. the Commission jurisdiction" to act upon Wm. L. Moose, Atty. Gen., and Jno. P. the matters mentioned in the act quoted Streepey, Asst. Atty. Gen., for the State.

denced.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. 9.]

Appeal from Circuit Court, Washington County; Jos. S. Maples, Judge.

The St. Louis & San Francisco Railroad Company was convicted and fined for failure to obey an order of the Railroad Commission, and it appeals. Reversed.

from.

It has been many times decided that a corporation is not a citizen, within the meaning of the equal privileges and immunities clause of the federal Constitution; and this court has decided that section 18, article 2, of the Constitution of this state, containing the same provisions as those of the federal

SMITH, J. An information was filed before a justice of the peace of Washington county, in which it was charged that the appellant railroad company had failed and refused to comply with order No. 3085 of the Railroad Commission of Arkansas, which said order required appellant to establish Constitution, does not apply to corporations. and maintain a joint interchange track at C., R. I. & P. R. Co. v. State, 86 Ark. 423, Fayetteville with the Kansas City & Mem- 111 S. W. 456. And while it is held that phis Railroad Company, and to do switching corporations are persons within the meaning thereon. Judgment was rendered by de- of the fourteenth amendment to the federal fault in the justice court, and an appeal Constitution, which provides that no state was prosecuted to the circuit court, in which shall deprive any person of life, liberty, or court a demurrer and an answer were filed. property without due process of law, nor Various grounds of defense were set up in deny to any person within its jurisdiction the answer, which we need not consider the equal protection of the law, it has been here; but, among other defenses, it was al- as often decided that corporations are not leged that the order of the Railroad Com- included in that portion of the same amendmission upon which the prosecution was ment which provides that no state shall based was void, for the reason that no pe- make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States. A number of the cases so holding are cited in the opinion of this court in the case of Chicago, R. I. & P. R. Co. v. State, supra.

[2] A number of definitions of the word "citizen" are found in volume 1 of Words and Phrases, and we quote the following definition there given:

"Citizen' ordinarily means only a natural person, and will not be construed to include a corporation, unless the general purpose and import of the statute in which the term is found seem to require it. International & Life Assur. Ass'n v. Haight, 35 N. J. Law, 279, 282.”

grant the relief prayed until the signer has concluded that the relief prayed for should be granted. If the rule were otherwise, the requirement of a petition would be futile. For a corporation to exercise this function would require investigation and consideration by its directors and a conclusion to be reached by them. No mere stockholder or officer of a corporation, upon his own initiative, would have the right to declare the corporate will. Some other officer or stockholder might be of a contrary opinion, and to avoid this conflict a corporation, if authorized to act at all, would have to act in some manner permitted by statute. But the Legislature having made no provision by which the assent of a corporation might be evidenced, but, upon the contrary, having used language which in its ordinary accep

have concluded that the petition was not signed as required by law, and that the Railroad Commission was therefore without jurisdiction to make the order upon which this prosecution is based, and the cause will therefore be reversed and dismissed.

In the case of School Dist. No. 11 v. School Dist. No. 20, 63 Ark. 543, 39 S. W. 850, the court considered the meaning of the word "citizen" as employed in the statute authorizing petitions for change of boundaries of school districts. The court, through tation would refer only to individuals, we Bunn, C. J., said that, from the common understanding of the meaning of the word "citizen," and from the fact that some other word than "citizen” is employed in the statutes authorizing these changes, whenever persons other than electors were included, the word "citizen," as there used, meant an "elector." It is not customary to speak of corporations or of copartnerships as residing in a particular locality. They must, of course, have their situs, or, as is sometimes (Supreme Court of Arkansas. Oct. 11, 1915.) said, their "domicile," in a particular locality; but it would not be said that they were residents of that locality.

as was

Moreover, the use of the qualifying words "bona fide" is significant. Evidently the Legislature did not intend to burden the Railroad Commission with the consideration of petitions for the things authorized to be petitioned for unless at least 15 bona fide citizens residing in the locality to be affected were sufficiently interested to petition therefor. It is no doubt true that a corporation or a copartnership might be interested and greatly benefited by relief such prayed for in the petition in question; but these are questions which the Legislature apparently has left for the action of "citizens residing in the locality to be affected," which language we construe to mean permanent residents, as distinguished from mere sojourners, and as excluding corporations and copartnerships, and including only individuals. If corporations or companies were taken into account, the question of the authority of the officers signing the names of such corporations or companies would arise, where the statute did not provide what officers should sign for such companies or corporations.

W. B. THOMPSON & CO. v. LEWIS. (No. 152.)

1. FIXTURES

4-ANNEXATION-INTENT.

It will be presumed that the owner of land who attaches chattels thereto intends that they shall become a part of the realty, and the intention in attaching is the test of whether the chattel becomes an irremovable fixture.

4.]

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. 2. FIXTURES 33-ANNEXATION BY TENANT -SUBSEQUENTLY ACQUIRED FEE.

he placed fixtures on the land, his leasehold estate merges in the fee which he afterwards acquired by purchase, so that fixtures already attached are thereafter irremovable.

Although defendant had only a lease when

[Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 64, 65; Dec. Dig.

3. FIXTURES

33.]

35-ANNEXATION-INTENT

EVIDENCE-SUFFICIENCY.

Evidence held sufficient to show intention of owner that trade fixtures attached to the land should become a part of the realty. Cent. Dig. 88 67-79; Dec. Dig. 35.] [Ed. Note.-For other cases, see Fixtures,

Appeal from Circuit Court, Union County; Chas. W. Smith, Judge.

Action by W. B. Thompson & Company against S. J. Lewis. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

J. B. Moore and Geo. M. Le Croy, both of El Dorado, for appellant. S. J. Lewis, pro se.

[3] The presumption is not to be indulged that petitions will be signed upon mere pres- MCCULLOCH, C. J. Appellants obtained a entation; but upon the contrary, the pre- judgment in the circuit court of Union county sumption of law must be that signers will against appellee for debt due by contract, and not seek to put in motion the machinery of sued out execution on the judgment, which the law to require a railway company to was by the sheriff levied on a small tract or

parcel of real estate on which was situated a steam cotton gin plant. Appellee filed a schedule claiming the machinery in the gin plant as exempt from sale under execution. The circuit court allowed the claim of exemptions, and an appeal has been prosecuted to this court.

[1] The facts in the case are undisputed. Appellee leased the lot from one Bolding in the year 1903 and erected the gin plant, which consisted of a frame two-story building, and placed therein the machinery consisting of engine and boiler and gin stand and cotton press, together with necessary shafting and belting. The machinery was placed in the building in the customary way, the boiler resting upon the ground under the shed of the building, and is incased in what the witnesses termed a mud casing. The cotton gin and press are placed upon sills resting upon the surface of the lot. Appellee purchased said lot from Bolding in the year 1907, and Bolding conveyed the title in fee to him. Appellee has continued to own and operate the gin since that time.

[2] Appellee was not the owner of the soil at the time he established the gin plant thereon, but by the purchase of the fee his leasehold estate in the soil became merged in the greater estate, and the principle announced in Ozark v. Adams, supra, applies.

Mr. Ewell lays down the rule, which appears to be overwhelmingly supported by the authorities, that:

"As against one who is the owner of the estate in fee as well as of the fixtures, they are part of the freehold and cease to be goods and chattels, and therefore may not be seised as goods and chattels by the sheriff under a fi. fa. as against the owner of the fee." Ewell on Fixtures (2d Ed.) p. 537.

Indeed, the same author lays down the rule that the owner of the fee cannot establish by parol his claim that fixtures attached to the soil are chattels for the purpose of requiring a levy thereon as that character of property. The learned author states the proposition as follows:

"Nor can the execution debtor by parol turn out as chattels for purpose of levy growing grass, fruit, or trees, or fixtures annexed to his land, nor without a severance, authorize the levy of execution thereon as chattels; and, if attempted to be done, the levy is void." Page 542.

Our conclusion is that the machinery constituting the gin plant did not constitute removable trade fixtures at the time of the levy of the execution and could not be claimed as exempt. This court, in the case of Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, laid down the rules for ascertaining whether an article is a chattel or an irremovable fix-fact, used the property since he became the ture, the principal test being stated as fol

lows:

"The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made."

[3] The machinery involved in this case was attached to the soil in the customary way in which that character of machinery was attached for use. The owner has, in

owner of the soil, for a period of about eight years, so the conclusion is unavoidable, even if no conclusive presumption were to be indulged under those circumstances, that there was no intention to treat the machinery otherwise than as a part of the realty.

The circuit court reached the wrong conclusion in the case, so the judgment is reversed, and the cause remanded, with direc

In the later case of Ozark v. Adams, 73 tions to quash the supersedeas. Ark. 227, 83 S. W. 920, we said that:

"Before the aforesaid rules can be applied the primary question is 'the relation of the parties.'"

And in that case the court approved the rule that:

"Where a chattel annexed to the soil is sold to the owner of the realty, that fact changes its prior personal character into an irremovable fixture."

The court cited with approval the case of Curtis v. Riddle, 7 Allen (Mass.) 185. The intention of the party who annexes the chattel being the real test whether or not it remains a chattel or becomes an irremovable fixture, the inference is strong, where the party attaching the fixture is the owner of the soil, that it was intended to become a part of the soil, and not a removable fixture, and all of the authorities hold that, under those circumstances, there must be strong evidence of a contrary intention manifested by some overt act or circumstance. Bemis v. First National Bank, 63 Ark. 625, 40 S. W. 127.

FEDERAL REALTY CO. v. EVINS.
(No. 162.)

(Supreme Court of Arkansas.
1. VENDOR AND PURCHASER
-CONSTRUCTION.

Oct. 11, 1915.) 3-CONTRACTS

A contract in which one party agrees to sell lands and lots at a stipulated price, and the is a contract for the sale of land, and not creother party agrees to pay the stipulated price, ating an agency for the sale, although other provisions indicate that sales by the purchaser are contemplated by the contract. Purchaser, Cent. Dig. § 3; Dec. Dig. 3.] [Ed. Note.-For other cases, see Vendor and

2. CONTRACTS 278-RIGHTS AND OBLIGATIONS OF PARTIES.

Where defendant entered into contract with plaintiff imposing certain obligations upon it and conferring certain rights, he is not entitled without the performance of his obligations. to insist upon the enforcement of his rights [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dec. Dig.

278.]

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