COOKSEY v. HARTZELL. (No. 164.) (Supreme Court of Arkansas. Oct. 18, 1915.)

1. LOGS AND LOGGING 2-BONA FIDE PURCHASER-NOTICE-EVIDENCE.

Evidence held to show that defendant bought land with notice of plaintiff's prior purchase of the standing timber.

[Ed. Note. For other cases, see Logs and Logging, Cent. Dig. §§ 1-5; Dec. Dig. 2.] 2. LOGS AND LOGGING 2-BONA FIDE PUR2. LOGS AND LOGGING 2-BONA FIDE PUR

CHASER-NOTICE-EVIDENCE.

That after defendant bought land he not only conceded plaintiff's ownership of the timber thereon and agreed to cut and remove it for him, but did so as to part of it, is corroboration of the testimony of defendant's vendor that defendant before he bought was informed of the prior sale of the timber.

[Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 1-5; Dec. Dig. 2.] 3. LOGS AND LOGGING 3 PURCHASE OF STANDING TIMBER-TIME TO REMOVE-INTERFERENCE.

The time limited to a purchaser of standing timber to remove it does not run during interference with his operations by the owner of the

land.

[Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. 3.]

Appeal from Sevier Chancery Court; Jas. D. Shaver, Chancellor.

prior sale of the timber to appellant. The chancellor decided the issues in appellee's favor, and dismissed the complaint for want of equity.

we

[1-3] We recognize the rule that on a disputed issue of fact in a chancery cause the finding of the chancellor should not be disturbed, unless found to be against the preponderance of the evidence, but in this case We are of the opinion, after a careful analysis of the testimony, that it preponderates clearly against the finding of the chancellor. Young testified positively that the day before he sold the land to appellee he told the latter that the timber had previously been sold and was owned by the Neal Springs Lumber Company. He explained that the reason he made that statement was because appellant wanted the deed made to the Neal Springs Lumber Company, and that he understood that appellant was operating in some way through or with that company. At any rate, he states positively that he told appellee that the timber had been sold. Appellee denied that, but admits that Young told him that the timber on a three-acre tract of land just across the creek from the timber in controversy was owned by the Neal Springs Lumber Company. Young has no interest in this controversy, so far as appears from the rec

A. D. Du Laney, of Ashdown, for appe! lant. Steel, Lake & Head, of Texarkana, for appellee.

MCCULLOCH, C. J. Appellant was engaged in the timber business in Sevier county, Ark., and on October 4, 1912, purchased from one J. G. Young the timber on a certain quarter section of land. Young and his wife executed a deed on that date conveying the timber to appellant and giving the right to cut and remove the same for a period of two years. The deed was not filed for record until May 17, 1913, and in the meantime Young sold and conveyed the land to appellee on February 18, 1913. This is an action instituted by appellant in the chancery court of Sevier county to secure an injunction against appellee's interference with appellant's employés in cutting and removing the timber. It is alleged in the complaint that appellee had notice at the time he purchased the land from Young of the prior sale of the timber to appellant, and that in August, 1913, he entered into an oral agreement with appellant's agent whereby he agreed for a stipulated price to remove the timber for appellant, and also agreed that, if he failed to do so within the period of two years prescribed in the deed of Young to appellant, the time should be extended for another year. Appellee in his answer denied that he had any notice when he purchased the land of the

corroborated by other testimony which shows that in August, 1913, appellee conceded appellant's ownership of the timber and entered into an agreement with the appellant, through his agent, Cleveland, to cut and haul the timber for a stipulated price. This was

about two months after the appellant's deed had been put on record. Appellee did, in fact, cut and haul a lot of the timber for appellant and received pay for it. Some of the payments were as late as December 10, 1913. Appellee undertakes to explain this by stating that at the time he made the concession as to appellant's ownership he thought the deed had been placed of record before his purchase; but the fact remains that he not only conceded appellant's ownership and agreed to cut and remove the timber for the latter, but that he afterwards did cut and haul a lot of it, and this must be taken as corroboration of the testimony of Young to the effect that appellee knew when he purchased the land that the timber had previously been sold; in other words, he was put upon notice of appellant's ownership, and, even though the deed was unrecorded, his grantor's prior conveyance to appellant must prevail over his subsequent purchase. The timber deed, even though unrecorded, was good between the parties and against subsequent purchasers with notice. The testimony shows, furthermore, that after appellee had failed to carry out his oral agreement to remove the timber, appellant sent a crew of men, in the summer of 1914, on the land to

The decree is reversed, and the cause remanded, with directions to enter a decree in favor of the appellant in accordance with his complaint.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 309-312; Dec. Dig. 95.]

2. HIGHWAYS 95-ROAD OVERSEERS-PowERS AND DUTIES.

Kirby's Dig. § 7314, which is a part of the statute providing an optional system of working roads, provides that at the time the county court meets to levy taxes it shall consider whether the roads shall be worked and bridges built as provided by that act, and if it shall so order, the order shall stand for 12 months, and that at the end of 12 months, when the taxes are again to be levied, if the court desires to continue to work roads and repair and build bridges thereunder, another order shall be made. Section 7318, which is a part of the same law, provides that no contract shall be made by the county judge or county court for the building of bridges or the working of roads until after the county court has levied the taxes for roads and bridges, and not until an estimate shall be made of the amount of money that will be raised, and that all contracts made and to be made within one year from the date of the levy of the taxes shall be in amount not to exceed the estimated levy. Held, that no indebtedness should be made by a district which cannot be met during the year in which it was incurred and while the law is in operation, and therefore a road overseer has no authority to incur an indebtedness for work on the roads of his district in excess of the district's revenues.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 309-312; Dec. Dig.

Appeal from Circuit Court, County; James Cochran, Judge.

95.]

Franklin

Proceeding by T. C. King against William Weaver, County Judge, on a claim against the county. Judgment for the claimant, and the county appeals. Reversed and remanded, with directions.

Geo. W. Barham, of Ozark, for appellant. Robt. J. White, of Paris, for appellee.

SMITH, J. Appellee was overseer of road district No. 24 of Franklin county, and filed a claim against that district at the October, 1914, term of the county court for the sum of $313.97. This amount was made up of

There is no material dispute as to the facts in the case. The roads of Franklin county are worked under the optional system of working roads set out in sections 7290 to 7323 of Kirby's Digest, known as the "Cotton Road Law." At the July, 1914, term of the county court a meeting of all the road overseers in the county was called, and this meeting was attended by appellee. At this meeting each road overseer was advised of the amount of money in the county treasury to the credit of his district, and appellee was advised that there was $142.99 to the credit of his district, and each road overseer was directed not to expend any sum in excess of the amount in the treasury to the credit of his district. The roads in district No. 24 were in such condition that they could not be properly worked with the said sum of $142.99, and appellee continued working said roads and repairing them unti! he had expended the full amount set out in the claim, which he filed with the county court for allowance.

[1] It is urged that the directions in the statute to road overseers to keep their roads in good condition contained, and was sufficient, authority for appellee to incur the indebtedness evidenced by the items set out in the claim filed for allowance. do not agree with appellee in this contention. The directions to road overseers to keep their roads in good repair cannot be construed to confer upon the overseers the unlimited authority to incur any expense necessary for this purpose. This direction must be held to mean that he shall use all the facilities granted him by law for that purpose, and his actions must be governed by the law under which he operates.

[2] This system of working the roads known as the "Cotton Road Law" is an optional system, and does not obtain in any county unless that county shall, at the meeting of the county court for the purpose of levying taxes, make appropriate orders for putting this law into effect. Such order, when so made, stands only for a period of 12 months, and unless this order is renewed at the following meeting, the provisions of this Cotton road law are no longer effective, and the roads must thereafter be worked under the general road laws. Section 7314 of Kirby's Digest.

In other words, by the testimony elicited from him on his direct examination and crossexamination the jury were fully informed as to the character and kind of building erected and the probable damage thereto.

There was the added circumstance that the witness had testified as to other material issues, and had been flatly contradicted by the evidence adduced in behalf of the defendant. The jury were the sole judges of the credibility of the witnesses, and in weighing their testimony had a right to believe all or a part of the testimony of any witness. They had the right to receive that part of the testimony which they believed to be true, and to reject that part which they believed to be false. When all these circumstances are considered, we do not think it can be said that the testimony adduced in behalf of the plaintiff was uncontradicted, and that for that reason the judgment should be reversed, or that judgment should be rendered here in behalf of the plaintiff for the full amount sued for.

[2] On the part of the defendant it is contended that the judgment should be reversed, because he offered to prove that his wall had been blown down by an unusually violent windstorm, and thereby occasioned the damage to plaintiff's building, and the court refused to allow him to make this proof. We cannot pass upon this contention of the defendant. He did not file a motion for a new trial, and hence we cannot review the alleged assignment of error. The assignment complained of was a proper subject for a bill of exceptions; but, not having been made a ground for a motion for a new trial, we cannot consider it here. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138, 153 S. W. 89; Thomas v. Jackson, 105 Ark. 353, 151 S. W. 521. Many other decisions might be cited, but the question has been so thoroughly settled by this court that further citation of authority is not necessary.

It follows that the judgment must be affirmed.

OKLAHOMA STATE BANK v. BANK OF CENTRAL ARKANSAS et al. (No. 166.)

(Supreme Court of Arkansas. Oct. 18, 1915.) 1. MONEY RECEIVED 9-FOLLOWING FUNDS -RIGHTS OF INNOCENT PARTIES. Money which has been misappropriated or obtained by fraud and afterwards paid to an innocent party cannot be recovered.

[Ed. Note. For other cases, see Money Received, Cent. Dig. § 31; Dec. Dig. 9.] 2. BANKS AND BANKING 156-COLLECTIONS -BANK AS AGENT-RECOVERING BACK.

M. executed a note which was sent to a bank for collection. He drew a draft on plaintiff in favor of W., who, acting as his agent and participating in the fraudulent scheme, deposited it with such bank for collection with instructions to credit the amount to M. or, as claimed by him, to apply it on the note. M. by false representa

W.

tions induced plaintiff to pay this draft, and it was placed to M.'s credit on the books of the cashier that M.'s conduct in the transaction was bank. Thereafter plaintiff informed the bank's wrongful, and asked that the deposit be not disturbed until a suit could be commenced. thereafter directed the bank to apply the amount this would be done, indorsed the note as paid, collected on the note, and the cashier stated that and charged M.'s account with the amount, but subsequently erased the indorsement and credited the amount back to M. Held, that the bank that it was directed to apply the amount collectcollected the draft as M.'s agent, even assuming ed on the note, and the amount, being recoverable by plaintiff from M., was likewise recoverable from the bank, even though the bank by placing the funds to M.'s credit constituted itself his debtor to that extent.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 539-546; Dec. Dig. 156.]

3. BANKS AND BANKING 165 - COLLECTIONS-RECOVERING BACK.

draft was wrongfully obtained, it was the bank's Upon receiving notice that payment of the duty to hold the funds as those of plaintiff, and it had no right to pay them out to another party, and hence, though the acts of the cashier would to the payment of the note had they stood to the have constituted an appropriation of such funds credit of M., the funds belonging to plaintiff the bank could not be held to the appropriation of the funds to the payment of the note, but had a right to withdraw such attempted appropriation and plaintiff and not the holder of the note was entitled to the funds.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 571-573, 583-585; Dec. Dig. 165.]

Appeal from Lonoke Chancery Court; Jno. E. Martineau, Chancellor.

Action by the C. M. Keys Commission Company against T. J. Muse and others, in which a writ of garnishment was served on the Bank of Central Arkansas. From a decree in favor of plaintiff, the defendant Oklahoma State Bank appeals. Affirmed.

Geo. M. Chapline, of Lonoke, and John W. Newman, of Little Rock, for appellant. W. A. Leach, of Lonoke, for appellees.

MCCULLOCH, C. J. This action was instituted in the circuit court of Lonoke county, and, after the issues were joined by the pleadings, the case was by agreement of parties transferred to the chancery court of that county and proceeded there to a final decree. sion Company, a corporation doing business The plaintiff, C. M. Keys Commisat East St. Louis, Ill., claims an indebtedness against defendant T. J. Muse in the sum of $1,166.30, of which the sum of $1,150 was incurred by a draft drawn by Muse on said plaintiff in favor of one Ben Wildman, which said draft was deposited by Wildman for collection with the garnishee, Bank of Central Arkansas, at Lonoke, and paid by the plaintiff to said garnishee. R. F. Johnson and Oklahoma State Bank, a banking institution of Ada, Okl., were both joined as defendants, and a writ of garnishment was issued and served on the Bank of Central Arkansas. It