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(273 S.W.) It seems to me that the interpretation now the trial. The court proceeded to sound the placed upon the language of the amendment docket to ascertain what cases were ready thwarts the expressed will of the people for trial, and when the instant case was who framed the amendment and adopted it. called for that purpose appellant's attorney The decision of the majority is, I must say was not present, and the cause was dismissed though I say it with great respect-founded for the want of prosecution. Appellant imupon the doctrine of necessity; that is to say, mediately advised the attorney he had emwhat appears to them to be the necessities ployed to represent him of the court's action, of the situation. It is another verification and was then, for the first time, informed of the maxim that, "necessity knows no that the attorney had retired from practice law."

and would not appear in any case. This attorney was not present in court when the cause was dismissed and did not appear for half an hour thereafter; but as soon as the

attorney did appear and had advised appelWILSON V. ANDERSON. (No. 72.) lant that he would not represent him, appel(Supreme Court of Arkansas. June 22, 1925.) | lant immediately employed another attorney

and announced ready for trial and prayed Justices of the peace w 166(6)-Dismissal of the reinstatement of the cause. Appellant case appealed from justice court set aside on

was not advised by his original attorney that facts shown.

he would not appear for him until after the On appeal from judgment of justice of the order of the court had been made dismissing peace, where, at time of trial, defendant bad the appeal. Defendant's new attorney prepot been informed by his attorney that he would not represent him, and, immediately on dis. pared and filed at once a motion to reinstate, missal for want of prosecution, he employed an

which wa's duly sworn to, and the facts hereother attorney and moved for reinstatement, the in cited are copied from this motion. dismissal should have been set aside.

It was there further recited;

"That defendant is old and infirm and knows Appeal from Circuit Court, Ouachita Coun- nothing whatever about court procedure, and ty; L. S. Britt, Judge.

when the case was being called he did not know Action by Roxie Anderson against A. A. it was for dismissal and was not informed by Wilson. From judgment for plaintiff in the court nor any one for the court that his court of Justice of the peace, defendant ap termining whether it would be ready for trial,

case was being called up for the purpose of depealed to circuit court. Appeal was dis- and that if he failed to announce ready for missed for want of prosecution, and defend- trial the cause would be dismissed." ant appeals. Reversed and remanded, with directions.

This motion was heard the day it was Saxon & Davidson, of Camden, for appel- filed, and the court entered the following lant.

order:

"Now on this day comes the parties herein SMITH, J. This suit originated in the by their respective attorneys, and the motion court of a justice of the peace, and the appel- filed in this cause asking that the order of dislant here was the defendant there. A judg- missal had in this cause be set aside and said ment was rendered by the justice of the peace cause be reinstated, and said motion coming for the plaintiff, from which the defendant on to be heard and same being submitted to the appealed to the circuit court. This appeal court, the court after being well and sufficiently appears to have been perfected on Septem- advised in the premises, and after hearing arber 8, 1923, and the cause was placed on the fendant, is of the opinion that said motion to

gument of counsel for both plaintiff and dedocket of the circuit court. On the 24th of reinstate should be and same is by the court April, 1924, the following order was made in overruled and denied.” the circuit court: "Now on this day this cause being reached

This appeal is from the order of the court on the court's docket, and same being called for refusing to reinstate the cause for trial, and trial, said appeal is by the court dismissed for as we understand the judgment from which want of prosecution,"

we have copied, the matter was heard on the

motion. No testimony appears to have been On the day on which this order was made, offered on the hearing of the motion, and it a motion was filed to reinstate, which con was apparently disposed of as if it had been tained the following allegations: There were heard on demurrer to the motion. recited facts which, if true, constituted a When thus considered, it appears to us that highly meritorious defense to the plaintiff's a prima facie showing was made that appelcause of action. It was recited in this motion lant did not fail to prosecute his appeal with that the cause was set for trial Thursday, diligence. He was present ready for trial, April 24, 1924, and that defendant was pres- except only that his attorney had retired ent for the trial. He had employed a regu- from practice without advising his client of larly practicing attorney to represent him at that fact, and within half an hour after be

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

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ing so advised appellant had employed other Suit by John Thompson against T. G. Alcounsel and had announced ready for trial. len. Decree for plaintiff, and defendant apUpon this showing we think there was no peals. Reversed and remanded, with direclack of diligence on the part of appellant in tions. prosecuting his appeal from the judgment of

Appellant pro se. the justice of the peace, and the order dismissing the cause for want of prosecution Magnolia, for appellee.

Henry Stevens and E. A. Upton, both of should have been set aside and a trial of the cause on its merits ordered.

For the error indicated, the judgment will HUMPHREYS, J. This suit was brought by be reversed and the cause remanded, with appellee against appellant in the chancery directions to set aside the order of dismissal court of Columbia county, to enforce the speand to redocket the cause for trial on its cific performance of an alleged contract for merits.

the sale and purchase of an undivided onehalf interest in the royalty of all the oil, gas, and other minerals on and under a certain 70-acre tract of land in said county, by reforming one of the deeds of conveyance. The

land was conveyed by appellant to appellee ALLEN V. THOMPSON. (No. 91.)

in two deeds-one conveying an undivided

one-half interest in said royalty upon and un(Supreme Court of Arkansas. June 29, 1925.) der 60 acres of said tract, and the other an 1. Principal and agent 171(5)—Grantee of undivided one-fourth interest in said royalty fourth interest in mineral royalties held not upon and under 10 acres of said tract. It entitled to specific performance of prior oral was alleged that through mutual mistake an agreement to convey half interest.

undivided one-fourth interest of the oil, gas, Purchaser accepting and retaining deed of and other mineral, instead of an undivided fourth interest in mineral royalties, instead of one-half interest, in the 10-acre tract was condemanding return of money and offering to re- veyed by appellant to appellee. convey because of failure to convey half inter

Appellant filed an answer denying that a est as orally agreed, ratified his agent's action mistake had been made in the quantity of in closing deal on basis of fourth interest and royalty conveyed in the 10-acre tract, and, by could not sue for specific performance of ver

way of further defense, alleged that the conbal contract.

tract for the sale and purchase of said royal2. Contracts Own 245(1)-Party cannot insist on ty was verbal and void as being within the

contract in conformity with original under statute of frauds. standing, after closing different contract on

[1] The cause was submitted to the court terms known and understood.

upon the pleadings and testimony, which reOne cannot close contract on terms known sulted in a finding that by mutual mistake and understood by both parties, and afterwards the deed to the 10-acre tract conveyed an uninsist on different contract in conformity with divided one-fourth interest in said royalties original understanding; parties having right to change or modify contracts by mutual agree- instead of an undivided one-half interest ment before consummation thereof.

therein, and decreed a reformation of the

deed so as to convey a one-half interest in 3. Mines and minerals 79(1)-Check held said royalties. The court further found that not contract, but merely evidence of payment one-half of the royalty from the oil produced of sum named for royalties expressed in deeds,

belonged to appellee, and decreed that he Check for royalties, with notation in left- the oil heretofore produced, from which find

have and recover one-half of the royalty of hand corner, "one-half royalty on" two described tracts, held not written contract for half ings and decree, an appeal has been duly royalty in both, but merely evidence of payment prosecuted to this court. The testimony is of sum named for half royalty in one and conflicting as to whether appellee contracted fourth royalty in other, as expressed in deeds. with appellant to purchase an undivided one

half interest in the oil and mineral royalties 4. Frauds, statute of Om 118(1)-Oral contract in the 10-acre tract, but there is no conflict for sale of mineral royalties held within stato relative to the quantity of royalty entering ute; check and two deeds in consummation of contract not constituting written contract. into the deal as finally agreed upon and con

summated. The undisputed evidence reflects Oral contract for sale of half interest in mineral royalties in certain tracts of land held that appellee selected Harnwell & Young, a nonenforceable as within statute of frauds; firm of attorneys at Stephens, as his agent, check and two deeds, executed and delivered in to purchase appellant's royalty rights in the consummation of contract, not constituting 70-acre tract, and placed a check in their written executory contract.

hands for $2,200 with which to pay appellant

for said royalties if the abstract showed good Appeal from Columbia Chancery Court; J. and sufficient title in him. The check was Y. Stevens, Chancellor.

written by Harnwell, and contained the fol

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

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(273 S.W.) lowing notation in the left-hand corner, to / summation of the contract, and were not wit:

themselves in any sense a written executory “One-half royalty on S. E. 14 S. W. 14, and contract. S. W. 44 N. W. 14 S. E. 1/4 and W, 12 S. W. On account of the error indicated, the de14 S. E. 14, all in Sec. 23, Twp. 15 S., Rge. cree is reversed, and the cause is remanded, 20W."

with directions to dismiss appellee's bill for [2] On examination of the abstract, it was

the want of equity. discovered that appellant only owned an undivided one-fourth interest in the royalties upon and under the 10-acre tract. After mak- SLOAN, State Treasurer, v. BLYTHEVILLE ing this discovery, Harnwell prepared two SPECIAL SCHOOL DIST. NO. 5 et al. deeds-one for an undivided one-half interest

(No. 71.) in the royalties in the 60-acre tract, and the other an undivided one-fourth interest in the (Supreme Court of Arkansas. June 22, 1925.

Rehearing Denied July 13, 1925.) royalties in the 10-acre tract. These deeds were executed by appellant, and delivered to 1. Courts Om 107–Language used in any deciHarnwell in exchange for the check which sion must be construed as a whole. he indorsed and collected. Harnwell placed Language used in any decision must be conthe deeds of record, and sent them to appel- strued as a whole, and read in light of issues lee, explaining that he had closed the deal up

presented. on the basis of $2,200 for an undivided one- 2. Schools and school districts Om 10—Statute, half interest in the royalties in the 60-acre directing credit of funds arising from sale of tract, and an undivided one-fourth interest in sixteenth section school lands to permanent the royalties in the 10-acre tract. Appellee school funds of the state, held not unconsti. accepted and retained the deeds, and by so

tutional. doing, ratified the action of his agent. Un Acts 1899, No. 159, $1 (Crawford & Moses' less he intended to abide by the sale and pur- Dig: $ 9285) and Acts 1919, No. 344, 8 5 (Crawchase of the royalties made by his agent, he ford & Moses' Dig. § 9108), directing credit of should have repudiated the transaction by school lands to permanent school funds of the

funds arising from sale of sixteenth section demanding a return of his money and offering state, held not unconstitutional; title to such to reconvey the royalties in said lands to lands being vested absolutely in the state, and appellant. It is true that he requested his Legislature having exclusive control over the agent several times to get the other undivided fund; Const. art. 14, only requiring that funds one-fourth interest in the 10-acre tract from 'shall never be used for any other than a school appellant, claiming that he was entitled to it purpose, and consent of Congress by Act Cong. under the original agreement, but at that that such funds be credited to permanent school

March 8, 1898, was unnecessary to authorize
time he knew his agent had closed the deal fund rather than to special school districts.
with appellant upon the basis of $2,200 for

Smith, J., dissenting.
an undivided one-half interest in the royal-
ties in the 60-acre tract, and an undivided
one-fourth interest in the royalties in the 10- Jno. E. Martineau, Chancellor.

Appeal from Pulaski Chancery Court;
acre tract. One cannot close a contract upon
terms known and understood by both parties,

Suit by the Blytheville Special School Disand afterwards insist upon a different con

trict No. 5 and others against Sam Sloan, tract simply because same was in conformity

State Treasurer. Decree for plaintiffs, and with the original understanding between the defendant appeals. Reversed and remanded, parties thereto. Parties have a right to with directions. change or modify their contracts by mutual Appellees brought this suit in equity agreement before consummation of same. against appellant, to restrain him as treas

[3, 4] Appellee attempts to uphold the de- | urer of the state of Arkansas from placing cree of the trial court upon the theory that certain money derived from the sale of sixthe only contract which could be consummat- teenth section school lands to the credit of ed between appellee's agent and appellant the permanent school funds of the state of was expressed in the check. The check was Arkansas. The answer admitted the alleganot in substance or form a contract between tions of the complaint that certain sixteenth the parties. It did not purport to be a con- section school lands in Mississippi county, tract. It was merely an evidence of the pay- Ark., were sold by order of the county court, ment of the sum named therein for the roy- and the proceeds thereof are now in the alties expressed in the two deeds. The court hands of the sheriff of Mississippi county, erred in treating the check as a written con for payment into the treasury of the state tract between the parties. The contract, if / of Arkansas, and that the state treasurer deany, between the parties was oral and non-clines to receive said funds as state treasurenforceable as being within the statute of er for any purpose other than as a credit frauds. The check and the two deeds were to the permanent school funds as provided instruments executed and delivered in con-, by section 1 of Act 159, approved May 8, 1899,

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

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and appearing in Crawford & Moses' Digest , power, and that no application to Congress as section 9285, and section 5 of Act 344, ap- was necessary to direct the appropriation of proved March 22, 1919, and appearing in their proceeds. It will be noted that under Crawford & Moses' Digest as section 9108. the original compact the section numbered

The appellant denies that the act of Con- 16 in every township was granted to the gress, approved March 8, 1898 (30 Stat. 262), state for the use of the inhabitants of such and the acts of the Legislature, above re- township for the use of schools. ferred to, are unconstitutional. In this con It is true that the Legislature memorialnection it may be stated that they authorized ized Congress to allow it to change the funds and directed the credit of funds arising from to the credit of the general school funds of the the sale of sixteenth section school lands to state, and that such permission was given by the permanent school funds of the state. the act of Congress of March 8, 1898, which

Appellees filed a demurrer to the answer resulted in the passage of the act of the Legof the appellant, which was sustained by the islature approved May 8, 1899. chancery court. Appellant declined to plead As stated by the Supreme Court of the further, and elected to stand upon his an. United States in the case last cited, the conswer. It was therefore decreed that appel- sent of Congress was not necessary, and the lant be enjoined from crediting to the perma-application for it was but evidence of the nent school funds of the state the proceeds strong desire of the Legislature to act in of the sale of the sixteenth section school good faith, and to keep within the pale of the lands in question, and appellant was ordered | law. and directed to credit said funds to the in In Mayers v. Byrne, 19 Ark. 308, the sale habitants of the special school districts in of a sixteenth section was sought to be set which the lands sold were situated. The aside on the ground of fraud and illegality in case is here on appeal.

the sale, and the court sustained the sale unH. W. Applegate, Atty. Gen., Brooks Hays, der an act of the Legislature confirming it. Asst. Atty. Gen., and Utley & Hammock, of Upon appeal, it was held that the act of the Little Rock, for appellant.

General Assembly confirming the sale was Little, Buck & Lasley, of Blytheville, for valid and effectual, and that the decree of appellees.

the court below, dismissing the bill for want

of equity, must be affirmed. The court held HART, J. (after stating the facts as in the state under the compact between the

that the title to the land vested absolutely above). The sole question raised by the ap- United States and the state. peal is whether the funds derived from the

In discussing the question, Chief Justice sale of sixteenth section school lands under

English said: the statute should be credited to the inhabit. ants of the school district in which-the land

“The state accepted the grant, however, is situated, as provided by the earlier act.

charged with the trust, that the land was to be The contention of appellees, who were the appropriated to the use of the inhabitants of

the township in which it was situated, for the plaintiffs in the court below, is that the stat- use of schools. The state, as a sovereign, not ute providing that the proceeds arising from as an individual, took upon herself a trust, the sale of sixteenth section lands shall which she was to execute, and could only exbe a part of the permanent school funds of ecute, by such municipal legislation as her the state is invalid, because inconsistent with General Assembly might deem necessary and the act of Congress granting the school lands expedient to carry into practical effect the obto the state of Arkansas, and the act of the jects of the grant. The land was to be appro

priated to the support of schools for the benestate accepting the grant. In short, it is the fit of the inhabitants of the township in which contention of appellees that this compact cre- it was situated, but whether this was to be ated a trust in favor of the inhabitants of effected by leasing the land, or selling it, and the school district in which the sixteenth sec- putting the proceeds upon interest, was not tion lands are situated, which could not be prescribed by the act of Congress making the abrogated by an act of the Legislature, or grant, and of course was left to the discretion

and good faith of the state." by an act of Congress.

Since Cooper v. Roberts, 18 How. 173, 15 Again, in Widner v. State, 49 Ark. 172, 4 L. Ed. 338, and Mayers v. Byrne, 19 Ark. S. W. 657, it was held that the legal title 308, contain a complete history of sixteenth to said lands is in the state, and that it section school lands, their legal status, and is held in trust for the support of schools the beneficent motive that caused said lands for the inhabitants of the township in which to be devoted to educational purposes, we | it is situated. There the right of the state need not repeat these matters here. While to sue a trespasser on school lands for the the precise question raised by this appeal was injury complained of was upheld. not decided, the effect of those cases is to In State v. Burk, 63 Ark. 56, 37 S. W. hold that, under the compact between the 406, it was held that the statute of limitaUnited States and the state of Arkansas, tions could not be pleaded against an action there was a grant to the state directly' of by the state to foreclose a mortgage given these lands, without any limitation of its to secure a loan of money belonging to the

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(273 S.W.) sixteenth section school funds and held by While the question raised by this appeal the state in trust for the use of schools. In was expressly reserved from decision, it is discussing the question, the court said that manifest, from the reasoning of the court it was held in Mayers y. Byrne, 19 Ark. 308, and the cases cited, that the court held that that the effect of the act of Congress, and the legal title to said lands was intended to the acceptance of the proposition therein con. be vested in the state, and was so vested by tained, was to vest the title to the sixteenth the acceptance of the conditions by the Consections therein granted absolutely in the stitutional Convention under which the state state, and that the state as a sovereign and was admitted into the Union, not as an individual took upon herself a [1, 2] The language used in any decision trust which she could only execute by such must be construed as a whole and read in legislation as her Legislature might enact, to the light of the issues presented. It is mancarry into practical effect the object of the ifest from all these decisions that the trust grant. In discussing the question, the court reposed by the United States is in the state said:

of Arkansas; that it is in the nature of a “While the state has always recognized the personal trust in the public faith of the state, inhabitants of each township as the benefici- and not a property trust fastened by the aries of the grant of the sixteenth sections in terms of the grant upon the land itself. The their township, it has never abandoned the effect of all our decisions is that the grant trust it assumed, but has always made and by Congress was to the state directly of these treated the individuals or corporations placed lands, without any limitation of its power, in control of the same as component parts of a general system of education, and at the same

and that no application to Congress was nectime as instruments in its hands for the per- essary to direct the appropriation of their formance of that trust."

proceeds.

This holding is in conformity with the Again, in School District No. 36 v. Gladish, rule adopted by the Supreme Court of the 111 Ark. 329, 163 S. W. 1194, the court ex- United States. In discussing a similar compressly recognized that, while the effect of pact between the United States and the state our earlier decisions was to hold that the of Michigan, in Cooper v. Roberts, 18 How. state held the legal title to the sixteenth sec- 173, 15 L. Ed. 338, the court said: tions in trust for the support of schools for the inbabitants of the township in which the "The trusts created by these compacts relate land was situated, it was for the Legislature to a subject certainly of universal interest, but to determine how and by whom these lands of municipal concern, over which the power of shall be managed and sold, and how the trust ent instance, the grant is to the state directly,

the state is plenary and exclusive. In the presshould be executed.

without limitation of its power, though there In Special School Dist. No. 5 v. State, 139 is a sacred obligation imposed on its public Ark. 263, 213 S. W. 961, the court again faith. We think it was competent to Michigan quoted with approval from Mayers v. Byrne, to sell the school reservations without the con19 Ark. 308, to the effect that the state as sent of Congress.” a sovereign, and not as an individual, took upon herself a trust which she was to exe Again, in the State of Alabama v. Schmidt, cute, and could only execute by such legisla- 232 U. S. 168, 34 S. Ct. 301, 58 L. Ed. 555, the tion as her General Assembly might deem court held that the act under which Alabama necessary and expedient to carry into prac- became a state vested the legal title of sectical effect the objects of the grant. It was tion 16 of every township in the state abthere held that the funds derived from the solutely, although the statute declared that sale of sixteenth section school lands could it was for the use of schools. It was held not be reinvested in a building and equip- , further that, while the trust created by a ment to be used for high school purposes. compact between the states and the United

In Brooks v. Wilson, 165 Ark. 477, 265 S. States that section 16 be used for school W. 53, it was held that, while the trust cre- purposes is a sacred obligation imposed on ated by the compact between the United the good faith of the state, the obligation States and this state that sixteenth section is honorary and the power of the state, where lands should be used for school purposes is the legal title has been invested in it, is a sacred obligation imposed on the good plenary and exclusive. faith of the state, the obligation is honorary, In King County, Washington, v. Seattle and that the legal title to such lands, being School District No. 1, 263 U. S. 361, 44 S. Ct. vested in the state, its power over the same 127, 68 L. Ed. 339, the court had under conis plenary and exclusive. In that case an sideration an act of Congress directing that inhabitant of the school district brought suit a certain per cent. of all money from each against the sheriff to enjoin him from issu- forest reserve shall be paid to the state in ing a certificate of purchase of sixteenth sec- which the reserve is situated, to be expendtion school lands situated within the limits ed, as the state Legislature may prescribe, of said school district. The chancellor dis- for the benefit of the public schools and pubmissed the complaint for want of equity, lic roads of the county or counties in which and the decree was affirmed.

the forest reserve is situated, and held that

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