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(134 Ark. 380)
$1,500. In December, 1914, the same parties BROWN v. BROWN et al. (No. 10.) executed another mortgage on the lands to (Supreme Court of Arkansas. May 27, 1918.) the same creditor to correct a mistake made 1. WILLS on 88(4)—DEED OR WILL-DEPOSIT in the description of the lands in the first FOR DELIVERY AFTER DEATH.
mortgage. It is also shown in behalf of the A deed deposited by grantor with a third plaintiff that a short time before T. J. person, to be delivered after grantor's death, no dominion or control over it being reserved. Brown died in the fall of 1915, he attempted is not testamentary, but effective as conveyance to exchange the lands in controversy for a as of date of deposit.
smaller tract of land, and stated that he was 2. DEEDS O 65-ACCEPTANCE FOR INFANT.
Acceptance of deed to infant by person with going to use the difference in paying his whom grantor deposited it to be delivered to debts. Several other witnesses testified that grantee after grantor's death is sufficient. at various times for the last three years 3. DEEDS Ow208(1)-DELIVERY-EVIDENCE. prior to his death, T. J. Brown claimed the
Statement of deceased's widow that he had lands in controversy as his own, and spoke not authorized her to deliver his deed to their of making some provision for his son Fred son, made in response to question of one who had come to see her about another matter, is if he could dispose of these lands and pay not sufficient to overcome her positive testimo- his debts. On the other hand, Haley Brown, ny that he had delivered it to her for the son.
his widow, testified that her husband on the 4. EVIDENCE Omw 271(15) DECLARATION OF 3d day of June, 1912, executed a deed to the GRANTOR.
Declarations of grantor in the absence of lands in controversy to his son Fred Brown; the grantee, after execution of deed, wherein he that she signed the deed with him, and they claimed the land, are inadmissible to defeat the acknowledged it before I. L. Franks on the deed.
same day; that her husband handed the deed 5. DEEDS 208(1)-DELIVERY-SUFFICIENCY OF EVIDENCE.
to her after its execution and acknowledg. Finding that deed had been delivered, held ment, and said, “You know what to do with not against preponderance of evidence.
it;" that she knew what he meant because he 6. WITNESSES 139(5)-TRANSACTION WITH had told her before what to do with the deed DECEDENT—"PARTY."
A mere nominal defendant in an action by if she outlived him; that she was to see that administrator is not a party incompetent under Fred Brown got the deed; that she placed Kirby's Dig. § 3095, to testify to transaction the deed along with a deed of her own in with decedent.
a big pocket book and kept it there until the [Ed. Note.-For other definitions, see Words death of her husband; that in a few days and Phrases, First and Second Series, Party.) after her husband's death, she delivered the
] 7. WITNESSES Cm193 – CONFIDENTIAL COM- deed to Fred Brown; that her husband had
MUNICATION-HUSBAND AND WIFE.
Direction of husband to wife, made in pres- been on a trade for a smaller place, and statence of third person, to deliver to their soned that he would make the trade if his son husband's deed to him, then deposited with her, Fred was willing; that he finally abandonis not a confidential communication, as to which, under Kirby's Dig. § 3095, subả. 4, she ed the exchange of his property for the is incompetent to testify.
other lands because their owner valued them Appeal from Fulton Chancery Court; Geo.
I. L. Franks stated that he wrote the T. Humphries, Chancellor.
Suit by R. W. Brown, individually and as deed, and that it was signed and acknowladministrator, against Fred Brown
edged by T. J. Brown and his wife, Haley others. From adverse decree, plaintiff ap- deed to his wife, saying, “This is Fred's:
Brown; that Mr. Brown then handed the peals. Affirmed.
you know what to do with it.” His wife R. W. Brown in his individual name and took the deed. Interrogatories propounded as administrator of the estate of T. J. to Fred Brown were attached to the comBrown, deceased, brought this suit in equity plaint. In answer to them Fred Brown statagainst Fred Brown and the other heirs at ed that he was not present when the deed law of T. J. Brown, deceased, and Haley was executed by T. J. Brown and Haley Brown, widow of T. J. Brown, deceased, to Brown on the 2d day of June, 1912; that cancel a deed executed by T. J. Brown to after that day he had a conversation with Fred Brown on the ground that the deed his father about the execution of the deed: was testamentary in character and operated that his father said that he had given each as a cloud on the title to said lands. T. J. of his other children a farm; that he gave Brown died in the fall of 1915, in possession this to him (Fred) to make him equal with of the lands which comprised 150 acres. The the other children; that he learned of the lands were worth at the time of his death deed a short time after its execution. about $2,500. At various times T. J. Brown Haley Brown was the stepmother of Fred in his lifetime had conveyed a portion of his Brown, and the latter was a minor at the lands to his other children.
time of the execution of the deed. T. J. On the part of the plaintiff it was shown Brown had a life insurance policy for $2,000. that in July, 1909, Thos. J. Brown and Haley in which Fred was made the beneficiary. It Brown, his wife, executed a mortgage on was shown by several witnesses that T. J. these lands to secure an indebtedness of | Brown had said that he made Fred the ben
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-64
eficiary in this policy in order that the, the deed. This statement attributed to her amount of it might pay off the mortgage on was made in response to a question asked by the land in controversy and leave it free for one of the parties. They had come to see Fred. It was shown by three witnesses her about another matter, and it is likely that shortly after the death of T. J. Brown, that she either misunderstood the question or Haley Brown stated to one of them that her answered it without considering carefully husband had not authorized her to deliver her words. In any event her statement made the deed to Fred Brown. The chancellor under the circumstances testified to by the found that the deed had been delivered, and witnesses is not sufficient to overcome her dismissed the complaint for want of equity. positive testimony to the effect that the deed The case is here on appeal.
was delivered to her for Fred Brown. The C. E. Elmore, of Mammoth Springs, for ap- record shows that T. J. Brown had given pellant. Lehman P. Kay and Ellis & Jones, each of his other children a farm, and that all of Salem, for appellees.
it was his intention to give the lands in controversy to his son Fred in order to place him
on an equality with them. The testimony of HART, J. (after stating the facts as the witnesses as to the declarations of T. J. above).  It is earnestly insisted by coun- Brown relative to the lands in controversy sel for the plaintiff that even if the testimo- made after the execution of the deed to Fred ny of Mrs. Haley Brown be considered com- Brown and in the absence of the latter is petent, that the finding of the chancellor is not admissible in evidence to defeat the deed against the preponderance of the evidence. to Fred Brown. Welch v. Welch, 200 S. W. It is settled in this state that if a deed, fully 139. When all the facts and circumstances executed and so drawn as to convey a pres- adduced in evidence are read together and ent title, is deposited by the grantor with a considered in the light of each other, it canthird person, with directions to deliver it to not be said that the finding of the chancellor the grantee after the death of the grantor, is against the preponderance of the evidence. and the grantor reserves no dominion or con
 It is next insisted that Mrs. Haley trol over the deed, the deed is not an at- Brown is a party defendant to the suit, and tempted testamentary disposition, but is ef- that under section 3093 of Kirby's 'Digest she fective as a conveyance of the title as of the cannot testify against the plaintiff as to any date when the deed is deposited. Fine v. transaction with or statements of T. J. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Brown. Mrs. Haley Brown claims no interCas. 1915C, 385.
est in the lands in controversy. She is not  Tested by this rule, we think the find- interested in the result of the suit, and is ing of the chancellor is not against the pre-only a nominal defendant. Hence the proviponderance of the evidence. Fred Brown sions of the section just referred to have no was a minor at the time his stepmother ac-application to her, and do not render her tescepted the delivery of the deed for him. timony incompetent. Walden v. Blassingame, The deed was for his benefit, and was suffi- 197 S. W. 1170. cient to vest title in him. Staggers v. White,
 Neither was the testimony incompetent 121 Ark. 328, 181 S. W. 139.
as being a confidential communication as be[3-5] Mrs. Haley Brown testified that after tween husband and wife within the meaning the deed had been executed and acknowledg- of the fourth subdivision of section 3095 of ed by her husband and herself that her hus- Kirby's Digest. Her testimony did not relate band handed the deed to her, saying that she to private conversations between herself and knew what to do with it. In this she was her husband in his lifetime. She testified corroborated by the person who wrote the as to a transaction which occurred in the deed and took her acknowledgment to it.
presence of a third person about a business When asked if she knew what her husband matter which her husband directed her to do meant when he said that she knew what to for him, and which could not be regarded in do with the deed when he handed it to her, any sense as a private communication beshe replied that she did; that he had al-tween husband and wife. The matter was ready told her that he wished it delivered not in its nature private, and could in no to his son Fred after his death. It is true
It is true sense, under the circumstances, be termed three witnesses testified that a few days aft- the subject of confidential disclosure. Nolen er her husband's death she told them that v. Harden, 43 Ark. 307, 51 Am. Rep. 563. . her husband did not authorize her to deliver It follows that the decree must be affirmed. (136 Ark. 624)
any land being too wet to plow, and that he CLEMENT V. MORRIS. (No. 4.)
will sow each year at least 20 acres of cow
peas wherever the lessee may direct; provided (Supreme Court of Arkansas. May 27, 1918.) always that on any breach of any of the cove
| 1. LANDLORD AND TENANT @www103(1)—BREACH may re-enter upon the said premises and imme
nants by the lessee herein contained the lessor OF LEASE-RIGHT TO RE-INTER.
Conditions of lease that the lessee should diately thereupon the said term shall absolutekeep the farm in good condition, properly cultivate it, and that he should not sublet the prem- This action was brought by Clement ises nor improperly work the land, and should sow at least 20 acres of cow peas as directed by against Morris to cancel the lease. Clement the lessor, on breach of any of which cove alleged that Morris had violated the contract nants the lessor could re-enter, were conditions in the following particulars: (1) He had subsequent upon breach of which the lease ter- subrented the premises without the consent minated. 2. CANCELLATION OF INSTRUMENTS C 45
and knowledge of Clement; (2) he had failBREACH OF LEASH-BURDEN OF PROOF.
ed to cultivate the land according to the Landlord seeking cancellation of lease on ac- most approved course of husbandry, caused count of lessee's alleged breach of the covenants washes to start and greatly damage the land, had the burden of proving the breach.
and had allowed bushes and grass to grow 3. LANDLORD AND TENANT O 112(2) FORFEITURE FOR BREACH-WAIVER.
on the cultivated land ; (3) he had not kept The landlord, by accepting the rent due for the fences and houses in good repair; (4) 1917, and permitting the tenant to continue in he had let bushes and briars grow in the occupation during such year, waived his right fence corners and ditches; (5) he had not to forfeiture of the lease for alleged breaches of covenants by the tenant in 1916.
planted cow peas on 20 acres as he agreed
to do; (6) he had pastured stock on the culAppeal from Pike Chancery Court; Jas.
tivated land; (7) he had failed and refused D. Shaver, Chancellor. Action by F. B. Clement against M. C. and was due a balance of rent for that year
to pay all the rent due for the year 1916, Morris, wherein defendant filed a counter
of $87. Morris answered, admitting the claim. Judgment for defendant, and plain- lease and Clement's ownership of the premtiff appeals. Affirmed.
ises, and denied all the other allegations. J. C. Pinnix, of Murfreesboro, and T. D. Morris set up that when he went into the Crawford, of Little Rock, for appellant. possession of the land the premises were in Otis Gilleylen, of Glenwood, for appellee. bad condition and repair; that he had clear
ed and put in cultivation 25 acres of the WOOD, J. On the 5th of May, 1915, B. F. land; that he had expended large sums of Clement, of Glenwood, Ark., entered into money in improving the same;. that Clement a written contract with M. C. Morris, of had agreed to furnish all material for buildAmity, Ark., by which Clement leased to ing and repairing all buildings and fences, Morris a farm near Glenwood called the but had failed to do so. Morris then itemClement and Hughen farm, for a period of ized, in his answer, the sums he had expendfive years commencing December 1, 1915. ed for labor and material, which amounted The consideration was $500 per year, to be in the aggregate to $315.35. He alleged that paid December 1, 1916, and annually there- he had entered into a written contract which after.
was part of the consideration of the lease The lease among other things, provided as by which Clement was to furnish at all times follows:
during the period of the lease not less than "The lessee during the said term will keep 25 milch cows and one male; that he (Morris) the said farmhouses and buildings and all things in and about the same and all fences, was to care for and feed the cattle and reditches, water courses, gates, fixtures, and ceive, for his labor and feed, all the milk things upon or about the said farm and lands and butter which the cows produced and in good condition and repair and without any one-half of the increase of the cattle; that alteration except such as the lessor shall approve of, and the lessee shall receive for his the promises and representations of Clement work the sum of $1 per day; that he will were the material inducement to him (Morcultivate, manure, and manage the said farm ris) to enter into the lease; that Clement and lands in a fair and proper manner according to the most approved course of husbandry, failed to furnish the cattle and by such failallowing no pasturing of tilled lands and pre- ure he (Morris) was compelled to employ adventing foulness from growing up in the fence ditional labor and had lost the entire use corners and edges and lands in cultivation; that he will, at the expiration or sooner determina- of the pasture as well as the products and tion of the said term, yield up the premises increase of the cattle. He prayed that the aforesaid in such good condition and repair, and complaint might be dismissed, and that he in fair and proper order as aforesaid unto the might have judgment over against Clement lessor; that the lessor and his agent, survey
He exhibited with the ors, and workmen may at all reasonable times for his damages. during the said term enter upon the said prem- answer and also with his depositions a conises to inspect the same and to cut and remove tract entered into by him and Clement exetimber and other trees, and that he will not cuted on the 5th of May, 1915, which recited assign or underlet the said premises or any part thereof without the consent in writing in substance that Morris agreed to furnish of the lessor; that he will not plow or work | feed and care for in a good and proper man
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
ner, at his own expense, all the cattle with leged by the appellant. It would not be usewhich he might be supplied by Clement dur- ful as a precedent to discuss these issues of ing the term of the lease which was refer- fact and would greatly extend this opinion to red to in the contract of May 5, 1915, in do so. We therefore deem it only necessary consideration thereof Clement agreed to give to announce our conclusion, which is that the Morris one-half of the increase of the cattle appellant has not sustained the allegations of furnished him by Clement, which should be his complaint by a preponderance of the evino less in number than 25 cows and one .dence. male. Morris was to receive the milk and  Among other grounds appellant alleged butter obtained from any cow or heifer dur- that the appellee had failed to pay the rent ing the term of the contract. Clement ans for the year 1916, in that he owed a balance swered the cross-complaint, denying its ma- of $87 on the rent for that year. The appelterial allegations and denying that the cat- lant testified that appellee owed him a baltle contract, exhibited with Morris' answer ance of $83.82 for the year 1916. But the and cross-complaint, was any part of the appellee testified that he had paid this rent written lease and alleged that same had by clearing land under a contract which he been canceled by mutual consent.
introduced in evidence under the express In the written lease it is recited that:
terms of which the payment for the clearing “The lessee doth hereby covenant with the was to be applied on the rent for the year lessor that he, the lessee, during the said 1916. Appellant contends that the clearing term will keep the said farmhouses, et cetera;
* in good condition and repair," et cet- was not done according to the contract and era; and do other things specified to be done was not satisfactory, but he did not notify by the lessee.
the appellee of that fact as shown by the After enumerating these the lease recites: testimony of the appellee on the first of De"Providing always that on any breach of any cember, 1916, when the balance of the rent
by ed the lessor may re-enter upon the premises was due. If appellant intended to insist on and immediately thereupon the said term shall the forfeiture of the lease for 'the alleged absolutely determine.”
breach of contract in not paying the balance In Winn v. State, 55 Ark. 360, 18 S. W. 375, due on the rent for the year 1916, he should we held, quoting syllabus:
have so notified the appellee at the time this "Where a tenant stipulates to make certain rent was due. Instead of doing this he perimprovements within a designated time, and mitted appellee to continue to occupy the in case of failure to do so agrees to forfeit his lease, the stipulation is a condition upon premises for another year and accepted the breach of which the landlord is entitled to rent for that year. The proof on the part of re-enter.”
the appellee tends to show that at the time The doctrine there announced is applicable the present suit was instituted against him he here.
had expended the sum of $1,500 in the pur The provisions above quoted from the chase of stock and farming implements, for written lease, specifying the things that Mor- the purpose of cultivating the land in controris was required to do, and stipulating that versy. upon a breach of any of the covenants Clem- In Friar v. Baldridge, 91 Ark. 137, 120 S. ent might re-enter upon the premises and W. 991, we said: that immediately thereupon the term of the
"It is a well-settled principle that equity ablease should cease, constitute conditions sub- hors a forfeiture and that it will relieve against
a forfeiture when the same has either expresssequent upon a breach of which by Morris ly or by conduct been waived." the lease terminated. Appellant in his com
In Little Rock Granite Co. v. Shall, 59 Ark. plaint set forth seven conditions which he alleged were broken by the appellee and con- 409, 27 S. W. 562, we quoted from Mr. Pomstituted a forfeiture of the latter's contract. eroy as follows: The chancellor made a general finding to the ment sufficient to cause a forfeiture,
"If there has been a breach of the agreeeffect that the allegations of the complaint party entitled thereto either expressly or by were not supported by the evidence.
his conduct waives it or acquiesces in it, he  The burden of the proof was upon the will be precluded from enforcing the forfeiture, appellant to establish the alleged breaches of and equity will aid the defaulting party by re
lieving against it, if necessary." contract upon the part of the appellee which would constitute a forfeiture and entitle him If it be conceded that appellee had breachto the relief sought. It was purely an issue ed the conditions of the lease by the failure of fact as to whether or not the appellee had to pay the rent for the year 1916 and by other failed to comply with the different conditions alleged breaches occurring prior to that time, which the appellant alleged would entitle him the appellant waived the forfeiture, if any, to have the lease forfeited. We have examin- by permitting the appellee to continue to oced the testimony in appellant's abstract ad-cupy the premises for the year 1917, and acduced by the appellant to sustain the allega- cepting the rent for that year. tions of his complaint, and also the testimony We are convinced after a careful considadduced by the appellée to rebut the testi-eration of the evidence that the decree of the mony of appellant and to show that he had chancellor is in all things correct, and it is
(134 Ark. 320)
McCULLOCH, C. J. The plaintiff, W. TEXAS MOTOR CO. v. BUFFINGTON. F. Buffington, instituted this action in the (No. 369.)
circuit court of Miller county to recover dam(Supreme Court of Arkansas. May 20, 1918.) ages on account of injuries alleged to have
been sustained through the negligence of de1. MUNICIPAL CORPORATIONS Ow706(6)-IN- fendant, the Texas Motor Company. The JURY FROM AUTOMOBILE - SUFFICIENCY OF charge of negligence is that one of the ofEVIDENCE.
In an action against a corporation for per- ficers of defendant backed a car out of a gasonal injury through the backing of an automo- rage into a public street in the city of Texbile into a public street, held, on the evidence, arkana and knocked the plaintiff down, therethat the negligence of defendant's officer in backing the car into the street without warning by inflicting serious injuries to the person of or without exercising the proper care to dis- the latter. It is charged that the automocover the presence of plaintiff or at an excessive bile was backed out into the street at a high rate of speed was for the jury.
rate of speed without any warning signal be2. MUNICIPAL CORPORATIONS Ow706(7) - IN- ing sounded and without any effort on the JURY FROM AUTOMOBILE CONTRIBUTORY
part of the driver to ascertain the presence NEGLIGENCE-QUESTION FOR JURY.
In such action held, on the evidence, that of persons in the street. The defendant deplaintiff's contributory negligence was a ques- nied the alleged act of negligence, and astion for the jury.
serted that plaintiff's injuries, if he received 3. MUNICIPAL CORPORATIONS O 705(1)-USE OF STREETS-AUTOMOBILE.
any at all, were caused by his own act of negAutomobilists and the drivers of other vehi- ligence in attempting to cross the street in cles have the right to share the street with the middle of the block and in failing to expedestrians, but must anticipate their presence ercise ordinary care to prevent the car from and exercise reasonable care commensurate with
The trial of the case before the danger reasonably to be anticipated to avoid striking him. injuring them.
a jury resulted in a verdict in favor of the 4. MUNICIPAL CORPORATIONS C706(6) - IN- plaintiff, awarding a very substantial amount JURY FROM AUTOMOBILE-NEGLIGENCE. of damages. It is not negligence per se for an automobile
The collision occurred on State street in driver to fail to keep a lookout or to sound the Texarkana, Tex., at a point in the middle horn when backing into the street. 5. MUNICIPAL CORPORATIONS Ow706(8) – IN- of a certain block where an automobile ga
JURY FROM AUTOMOBILE INSTRUCTIONS rage fronts upon the street. The car driven NEGLIGENCE.
by Anthony, one of the officers of defendant dict should be for plaintiff if the automobile corporation, was backing out of the entrance was being backed at a greater rate of speed of the garage when the rear end of the car or than a person of ordinary prudence would have the rear fender struck plaintiff ana knocked done, taking into consideration the presence of him down as he was crossing the street. . pedestrians and the general traffic, was errone. There is a conflict in the testimony as to ous in omitting all consideration of the speed of the car being the proximate cause of the in- whether the machine was backed out of the jury.
garage or merely backed out of the entrance. 6. MUNICIPAL CORPORATIONS Om 706(8) --IN- The plaintiff testified that when he started
JURIES FROM AUTOMOBILE-INSTRUCTIONS- across the street he looked in each direction, CONTRIBUTORY NEGLIGENCE.
but could not see any car, and his statements, In such action instructions, excluding consideration of the issue of plaintiff's contributory if believed, would warrant the conclusion negligence and authorizing a finding for him re- that the car was inside of the garage at that gardless of such contributory negligence, were time. On the other hand the testimony adobjectionable.
duced by the defendant was to the effect that 7. MUNICIPAL CORPORATIONS Om703(1) - IN- the car did not enter the garage at all, but
JURY FROM AUTOMOBILE NEGLIGENCE
was turned into the entrance for the purpose Where such injury occurred in Texas, the of obtaining a supply of gasoline and was Texas statute (Acts 1917, p. 476) $ 7, declaring backed a few feet in order that the nozzle of it to be the duty of the driver to give a signal the gasoline hose could be connected with the “whenever necessary as a warning of danger,' and prohibiting the giving of a signal “at other tank of the car. Plaintiff's own testimony times or for other purposes," and section 16, was, in substance, that he turned diagonally imposing the duty of ordinary care for the protection of other persons on the highway, did across the street at a point near the entrance not change the law of Arkansas so far as ap- of the garage and looked up and down the plicable to the facts of the case.
street for automobiles and other vehicles, and
that when he got near the middle of the Appeal from Circuit Court, Miller Coun- street the car driven by defendant's agent ty; Geo. R. Haynie, Judge.
struck him and knocked him down. He tesAction by W. F. Buffington against the tified that he did not see the car until he was Texas Motor Company. Judgment for plain-struck by it. The garage where the injury tiff, and defendant appeals. Reversed, and occurred was owned and operated by a Mr. remanded for new trial.
Anderson, and was known as Anderson's Webber & Webber, of Texarkana, for ap- Garage. There appears to have been no conpellant. G. G. Pope and Will Steel, both of nection between the defendant company and Texarkana, for appellee.
the Anderson Garage, and Anthony, the driv
Far other cases see same topic and KEY. NUMBER in all Key-Numbered Digests and Indexes