vances, and for a division of any surplus in with expenses and expenditures pertaining proportion of one-third to Bonner and two-to the land after the date of the bond. thirds to the Cross County Rice Company. It is unnecessary for us to discuss the rate From the decree an appeal has been prose of interest charged by appellees for expenses cuted to this court.

and advances, for it is conceded by appellees The trial court treated the bond set up that only 6 per cent. can be charged under in the amended cross-bill of Bonner as a su- the contract. The parties have agreed by persedeas bond, executed as a protection to stipulation on the amount advanced by JohnBonner, for liens on account of sales of lands ston on account of the lands to April 23, 1910, made prior to the execution thereof and that as well as on the amounts still owed by him might be made before a determination of on the lands for purchase money. In order the suit. This construction of the bond is to ascertain the correct charge against Bonchallenged by the appeal. It is contended ner on account of the purchase price of and by appellant that the execution and accept- expenses incident to holding the lands, it will ance of the bond effected the release of Bon-be necessary to ascertain the advances and ner's interest in the land and substituted interest thereon made by Johnston between for his protection the personal liability of that date and the date of the bond. Interest the bondsmen in lieu of the land. The bond should also be allowed Johnston on his adrecites, in substance, the contention between vances, as shown by the stipulation, from the the parties as to whether Bonner had any date of the stipulation to the date of the interest in the lands, and that the issue be- bond. tween them was then pending in the Su- Under the construction placed by the chanpreme Court for adjudication. The bond cellor upon the bond, it was unnecessary for then contains the following clause:

him to ascertain the market value of the “* * * For and in consideration of the sum lands yet unsold, and he did not do so. In of $1 to us cash in hand paid and the other keeping with his construction, he ordered a consideration above mentioned to release any sale of the lands for the purpose of liquidatand all claim of the said A. W. Bonner to the title to any of the lands above mentioned, doing the liens and advances made in the purhereby bond ourselves in the sum of $23,000, the chase of the land and for the purpose of disame being the value of the interest in said viding the surplus between the parties. Unlands as valued by the said A. W. Bonner, to der the construction placed upon the bond by perform the judgment of the court in this case by paying to the said A. W. Bonner any sum or this court, it will be necessary to ascertain sums which may be decreed to him and which the market value of the lands from the evishall be decreed to be a lien upon the above dence in the record already made, and to lands."

deduct therefrom the total amount of the ad[1] We think the proper interpretation of vances and indebtedness against the lands this clause, when read in connection with the at the date of the bond, in order to ascertain issue involved in the case, as set forth in the the value of Bonner's interest in the lands bond, is that Bonner released all claim to at that time. title in the lands which might be adjudged to

For the errors indicated, the decree is rehim by the court in consideration of the versed and remanded for further proceedings personal liability of the bondsmen to pay

in accordance with this opinion. him the value thereof, not to exceed $23,000. We think the purpose and effect of the bond

(134 Ark. 142) was to enable the Cross County Rice Compa- CHICAGO, R. I. & P. RY. CO. et al. v. BALL ny to sell and convey the land free from any

& PHILPOT. (No. 335.) claim by bond. The Cross County Rice Company had obtained a favorable construction (Supreme Court of Arkansas. April 29, 1918.) of the original contract from the trial court, CARRIERS 100(1)-DEMURRAGE-RIGHT TO and had no occasion whatever to execute a

COLLECT. bond for the purpose of superseding the judg-per on whose' order cars are placed for loading

Acts 1907, p. 458, § 6, providing that a shipment. The only purpose for executing the shall have a certain time therefor, and thereafter bond was to eliminate Bonner's interest in a demurrage charge may be assessed and collectthe land, if it should ultimately be decided ed on such cars not tendered to the railroad com

pany with shipping instructions within such that he had any interest in the land itself. time, is operative only between the company There is no uncertainty or ambiguity in the from which the cars are ordered, the hauling language of the bond. It clearly and ex-collection of the charge to a carrier merely

company, and the shipper and gives no right of plicitly expresses the intent of the parties.

switching the cars to and from the shipper's [2] It follows from this construction of private track, as agent for the hauling company, the bond that the court also erred in taxing for a specified price; and this though it receipts Bonner with outlays in connection with the placed on their interchange track, and under a land after the date of the bond. On that private agreement, the consideration of which date, Bonner's equitable interest in the land is the payment of the switching charge, pays

the hauling company a certain amount per day passed by contract to the Cross County Rice per car till the cars are returned to the interCompany, and it was improper to charge him change track from the shipper's private track.

Appeal from Pulaski Chancery Court; Jno. , interchange track. For the switching service E. Martineau, Chancellor.

the Chicago, Rock Island & Pacific Railway Suit by the Chicago, Rock Island & Pacific Company received $3 per car from the St. Railway Company and another against Ball Louis, Iron Mountain & Southern Railway & Philpot. From an adverse decree, plaintiffs Company, which latter company collected appeal. Affirmed.

the $3 switching charges per car from appelThos. S. Buzbee and Geo. B. Pugh, both of lees. .

When the loaded cars were returnLittle Rock, for appellants. Taylor, Jones & ed to the interchange track, the freight and Taylor, of Pine Bluff, for appellees.

switching charges were paid, and a bill of lading was issued to the appellees by the St.

Louis, Iron Mountain & Southern Railway HUMPHREYS, J. This is a suit by ap- Company. The cars were billed out by the pellants against appellees to recover demur- agent of the St. Louis, Iron Mountain & rage charges on account of the detention of Southern Railway Company to points on its cars overtime by appellees. The total amount line. While there was some dispute as to claimed was $273. Appellees disclaimed the the amount of the demurrage charged, the indebtedness and denied that they ordered correct amount established by the evidence is. any cars from, or that any cars were fur

$262. nished by, appellants to appellees. They

It is insisted by appellants that demurrage asserted that all the cars ordered by them were ordered from and furnished by the St. may be charged on company or publicly ownLouis, Iron Mountain & Southern Railway there beyond free time allowed for loading

ed cars placed on private tracks and detained Company; that appellant switched the cars

or unloading. This proposition of law is not thus ordered from an interchange track con- gainsaid by appellees, but it is contended by necting the tracks of the two companies to them that the demurrage statute is operative appellee's private industrial spur line, which was connected with appellant's main'line or only as between the railroad from which the track, but, in which appellants had no inter- cars are ordered and the shipper. The deest, and over which they had no control ; that murrage statute authorizing the rule containfor the switching service appellants were paid ed in Arkansas Standard Distance Tariff No. $3 per car by the St. Louis, Iron Mountain & 5, under which this suit was brought, is Southern Railway Company, which amount section '6, Act 193, Acts 1907, and is as fol

lows: was collected by the last-named company from appellees. The court heard the case upon the been placed for loading, shall be allowed forty

“A shipper, on whose order a car or cars have pleadings and evidence and disallowed the eight hours for the loading of such car or cars, demurrage items, from which judgment of computing time from 7 o'clock a. m., 'the day disallowance an appeal has been prosecuted after such car or cars have been placed subject

to the order of the shipper, and thereafter a deto this court.

murrage charge of not more than five dollars The facts are as follows: The Chicago, per car per day, or fraction of a day, may be Rock Island & Pacific Railway Company and assessed and collected on all such cars as have the St. Louis, Iron Mountain & Southern not been tendered to the railroad company with

shipping instructions within said forty-eight Railway Company are connected in the town hours; provided, however, that should the shipof Benton by an interchange track owned by per fail to begin loading within forty-eight hours them jointly. About one mile from where after the expiration of free time, the railroad the interchange track intersects the main line company shall consider the car or cars released, of the Chicago, Rock Island & Pacific Rall- car, covering the demurrage then due: Provided,

and may assess and collect ten dollars on each way Company, a private industrial spur track that such delay be not caused by unavoidable acowned and controlled by appellees also inter-cident or strike, and said cars be at once re

leased. sects the main line of the Chicago, Rock Is

“Railroad companies shall not be compelled to land & Pacific 'Railway Company. The cars furnish cars for future shipments to parties in upon which a demurrage charge is claimed default as to the payment of demurrage charges, were ordered by appellees from the St. Louis, ing the car or cars required by this act the rail

herein last provided for, * * * if, after placIron Mountain & Southern Railway Compa- road company shall, during or after free time, ny. That company placed them upon the in- temporarily, remove all or any of them, or in terchange track and took a receipt for them any way prevent, obstruct or delay the loading from the Chicago, Rock Island & Pacific Rail- of same, the shipper shall not be chargeable with

the delay caused thereby. way Company. By private agreement be- "When by reason of delay or irregularity on · tween the companies, the Chicago, Rock Is- the part of the railroad company in filling orland & Pacific Railway Company paid the St. ders, cars are bunched, in excess of the ability of Louis, Iron Mountain & Southern Railway tion, the shipper shall be allowed separate and

the shipper to load, as indicated in his applica-. Company 55 cents per day for the cars distinct periods of free time within which to through its Chicago office. The Chicago, Rock load the car or cars specified in each separate Island & Pacific Railway Company switched application.” the cars from the interchange track to the We are inclined to the view that appellees' private track of appellees to be loaded with construction of the statute is correct. The gravel out of appellees' gravel pit situated wording of the first part of the section innear the private industrial line, and when dicates that the statute is dealing with 'the they were loaded switched them back to the initial carrier from which the shipper ordered

the cars for shipping purposes. This conclu- 2. CANCELLATION OF INSTRUMENTS Om 37(4) sion is confirmed in the progress of reading

OFFER TO RESTORE BENEFITS. the section because later on the railroad showed that as a result of the conveyance de

Where allegations of plaintiff's complaint company to which the cars should have been fendant received personal property of the

value delivered with shipping instructions within of $1,700, rents and profits $2,800, and that 48 hours is authorized to assess and collect the labor of plaintiff performed' for defendant demurrage charges for detention of them over and above what she had received was worth

, , beyond the time allowed for loading. The veyance and contract to support given in constatute applies to carriers participating in the sideration thereof, required to allege tender or haul, as distinguished from carriers switch-offer to restore benefits. ing the cars preparatory to the haul. Under 3. CANCELLATION OF INSTRUMENTS Cw18-Es

TOPPEL. the facts in this case, the removal of the

That plaintiff, who conveyed land in considcars from the interchange track to the spur, eration of defendant's contract to support and and back to the interchange track from the care for plaintiff and her grandmother during spur, was strictly a switching operation and the remaining years of their lives, through sev

eral years endured the profligacy of defendant in not a part of the haul. The payment for

an effort to reform him, and obviate the necesthe work was paid as a switching charge, sity of resorting to law, would not estop her and not as freight upon the cars. The Chi- from bringing suit to rescind contract and cancago, Rock Island & Pacific Railroad Com-cel contract and deed. pany did not issue bills of lading for the cars 4. CANCELLATION OF INSTRUMENTS C34(1)—

LACHES. as they stood on the spur track. The bills

That plaintiff, who conveyed land in conof lading were issued by the St. Louis, Iron sideration of defendant's contract to support and Mountain & Southern Railway Company care for plaintiff and her grandmother during after they reached the interchange track, the remaining years of their lives, through seva loaded and ready for the haul, The cars in an effort to reform him, would not constitute were ordered from the St. Louis, Iron Moun- laches barring suit to rescind contract, and cantain & Southern Railway Company by appel- cel contract and deed. lees and shipped out over its line under con- 5. CANCELLATION OF INSTRUMENTS ©m 6-Contract with that company. The Chicago, Rock

TRACT TO SUPPORT.

Where a grantor conveys land in consideraIsland & Pacific Railway Company did not tion of grantee's agreement to support, mainparticipate in the shipping contract or the tain, and care for the grantor during the rehaul. The only part taken in the transaction mainder of her natural life, and the grantee by the Chicago, Rock Island & Pacific Rail- the grantor may, in equity, have a decree re

neglects or refuses to comply with his contract, way Company was to switch the cars, for a scinding the contract and setting aside the deed specified price, as agent for the St. Louis, and reinvesting the grantor with title. Iron Mountain & Southern Railway Company. 6. DEEDS 196(2)-FRAUD. It is true that the Chicago, Rock Island & form the contract to support, where that is the

An intentional failure of the grantee to perPacific Railway Company receipted to the consideration for a deed, raises the presumption St. Louis, Iron Mountain & Southern Railway of fraudulent intent, vitiating the deed. Company for the cars when first placed on 7. CANCELLATION OF INSTRUMENTS Cw10 the interchange track, and paid that company

FRAUD. 55 cents a day for the cars until returned deed is in a class by itself, and where the gran

A contract to support in consideration of a to the interchange track, but the considera- tee intentionally fails to perform, the remedy by tion for the private contract between the two cancellation, as for fraud, may be resorted to companies was the payment of $3 per car as regardless of any remedy that the grantor may a switching charge, and there is nothing in have at law. the record from which it can be inferred that Appeal from Sharp Chancery Court; Geo. the demurrage charges were a part of the T. Humphries, Chancellor. consideration to that contract. There is noth- Suit by Elizabeth P. Locke against Ira T. ing in the statute authorizing the transfer of Edwards and another. From decree renderthe right to collect demurrage charges. This ed, defendant named appeals. Affirmed. right under the statute was personal to the John H. Locke was the owner of certain shipping carrier.

lands in Sharp county, which he occupied as We think the chancellor correctly construed his homestead. In March, 1904, for an exthe statute, and therefore the decree is af- press consideration of $1,000 he executed a firmed.

warranty deed conveying the lands to his

daughter, Elizabeth Locke. Sarah Locke, his (134 Ark. 80)

wife, and the mother of Elizabeth, joined in EDWARDS et al. v. LOCKE. (No. 323.)

the conveyance releasing and relinquishing (Supreme Court of Arkansas. April 29, 1918.) her rights of dower and homestead. The 1. CANCELLATION OF INSTRUMENTS Ow37(4)– daughter lived with her mother and father. OFFER TO RESTORE BENEFITS.

The general rule is that a plaintiff, in a suit Her father died in July, 1908, and her mothfor rescission or cancellation of a written in- er in January, 1914. At the time of the death strument, must allege in his bill that prior to of John Locke, Ira Edwards, a grandson, institution of suit he made formal tender to re-lived with him and continued thereafter .to store benefits, or that he offered to restore such benefits; such rule grows out of the maxim that

reside with

with his grandmother and aunt. “hè who seeks equity must do equity.”

September 20, 1909, Elizabeth Locke executed her warranty deed to Ira Edwards for the fraudulent and same be canceled and that lands, which had been conveyed to her by she have a decree for the personal property. her father, containing in all 300 acres, more Appellant Edwards filed a general demuror less. The consideration named in the deed rer to the complaint, and also answered adwas $10 cash in hand, and the further con- mitting that appellee's father had conveyed sideration that Edwards had supported and to her the lands in controversy, and the excared for Elizabeth Locke and her mother for ecution of the deed from the appellee to him the past six years, and had entered into an and to his contract with her. He admitted obligation to continue such support for the that he sold a 40-acre tract of the land and remaining years of their lives and for the the execution of the deed of trust to Sloan, love and affection that she had for her neph- and denied all the other material allegations ew. On the same day Edwards entered into of the complaint, and set up that in 1904 he a written contract with Elizabeth Locke, entered into a verbal contract with his grandduly acknowledged and signed by both, in father, by the terms of which the grandfather which Edwards agreed, for and in considera- gave appellant all his personal property in tion of the conveyance to him of the lands order to induce appellant to take charge of of Elizabeth Locke, described in the deeds his grandfather's farm and other business on the same date, to obligate himself to care and to take care of him and his wife and for, maintain, and support his aunt Elizabeth the appellee, and alleged that he performed Locke and his grandmother Sarah Locke his contract by supporting his grandparents for and during their natural lives, and she until their death, and that since the execuobligated herself to execute the deed, which tion of the deed made by the appellee to apshe did as above stated.

pellant the latter had complied with his part On the 12th of October, 1912, Edwards and of the contract; that he was still willing Elizabeth Locke executed a deed of trust and able to continue to carry out his part on the lands mentioned to W. A. Edwards, of the contract; that the deed by appellee trustee, for the purpose of securing Clay to him was made upon the consideration of Sloan for a loan of $700. On the 19th of $10 therein named; and that he take care of November the appellee filed this suit in the appellee and her mother. Appellant further Sharp chancery court against Edwards and alleged that he and appellee lived together Sloan, in which she alleged that she was the until 1915, at which time appellee took a owner of the lands described in her com- notion to marry one Murphy, and from that plaint, and also that she was the owner of time until she left home she became disagreecertain personal property which her father able and wanted the land back. He denied had sold and devised to her, which she also categorically all charges of fraud in the prodescribed. She set up and exhibited a deed curing of the deed and all charges of personal from her father as her source of title to the misconduct towards and abuse of the appellands. She alleged that she was illiterate; lee, and also pleaded ratification, laches, and that she did not understand the contents of estoppel. He alleged in detail the character the deed she had executed to appellant, copy of the improvements made by him and their of which was exhibited; that appellant had value. Appellant prayed to be discharged taken charge of the lands and the personal with his costs, and that if the lands should property belonging to her and had had the be adjudged to belong to the appellee that entire control and management of the same he have a decree for the improvements and since the death of her father, using the rents have the expenses incurred by him in taking and profits therefrom as his own; that ap. mother and father, and that the same be

care of and supporting the appellee and her pellant had sold 40 acres of the land against mother and father, and that the same be pellant had sold 40 acres of the land against declared a lien upon the lands in controversy. her will and had mortgaged the land to Clay

Clay Sloan filed a separate answer alleg. Sloan for $700; that she did not sign or acknowledge the deed of trust to Clay Sloan. ing the execution by the appellant and the Appellee also set up that soon after appellant appellee of the deed of trust mentioned in took charge of the property he began to the complaint to secure a loan made by him squander the same in a reckless manner, and to them for $700. He alleged that the apthat he neglected appellee and her mother pellee signed and acknowledged the mortand by his dissipation and abuse subjected gage with the full understanding of the terms them to great indignities and humiliations, and conditions therein; that he made the and that after the death of her mother his loan and took the mortgage in all good faith conduct towards appellee continued and be- without knowledge of any possibility of liticame intolerable, compelling her at last to gation between the appellant and the appelleave her home and seek protection among lee as to the title of the property. He prayrelatives. Appellee alleged that the deed to ed that the mortgage be declared a valid lien appellant was executed through fraud, mis- upon the lands described therein, regardless representation, false pretense, intimidation, of the result of the suit between the appeland duress; that the consideration for the lant and the appellee, and that he recover deed and contract which she entered into all his costs. with appellant had wholly failed. She pray- The cause was heard upon the pleas, exed for a cancellation of the deed and contract hibits, certain documentary evidence, and the and that the mortgage to Sloan be declared depositions of witnesses. The court found that the contract and the deed of conveyance, and that he had received from the rents and between the appellant and the appellee men- profits from the farm the sum of $2,800, and tioned in the pleadings were executed on the that the labor of the plaintiff over and above same day, and should be taken together and what she had received was worth $700. construed as one instrument and contract. Therefore it is a complete answer to appelThe court also found that the deed of trust lant's contention to say that the allegations was executed and was security for a loan of the complaint show that the appellee had from Sloan to appellant; that as between received no benefits, and therefore there was the appellee and the appellant the debt was nothing for her to tender or offer to return that of appellant, but that as to Sloan it was as a prerequisite to maintaining her suit for the debt of both of them and constituted a cancellation. valid lien on the property described therein ; [3,4] 2. Appellant contends that the apthat the personal property involved was the pellee is barred by laches, and is estopped by property of the appellant. The court fur- her conduct from maintaining this suit. His ther found that Edwards had failed to carry counsel say that: out his contract to support and maintain "He had had possession and management of the appellee, and by his conduct towards her the farm at least from the date of his deed in he had rendered her condition intolerable September, 1909, until the bringing of this suit

in November, 1915, a period of a little over six and that the consideration for the deed and years, and that according to the contention of contract had failed; that appellant had prac- the appellee he had not been contributing anyticed fraud and deceit upon the appellee in thing to the support of herself or mother durthe procuring of the deed and contract; that ing the latter's lifetime, nor to the support of

appellee since the death of her mother.' the rents and profits which the appellant

The testimony is exceedingly voluminous, had received from the lands in controversy

and it has been abstracted in such manner were sufficient to pay him for the improvements which he had placed upon the land; as to necessitate our examining the record and that therefore he was not entitled to any in detail. To set out and discuss this evi

and reading the testimony of the witnesses betterments. The court entered a decree in accordance with its findings, canceling the dence would extend the opinion to great contract and deed, and quieting the title in length, and could not serve any wise or usethe appellee to the lands, and entered decreedence is such that it is far better that much in favor of Sloan dismissing appellee's com- dence is such that it is far better that much plaint as to him for want of equity. The of it be not preserved in the permanent recI court also dismissed appellant's cross-com

ords of our reports. It will suffice to state plaint for improvements, and entered a de- in a general way our conclusions. cree in favor of the appellee against the ap

If the appellee had predicated her right to pellant for the costs.

a rescission and cancellation of the contract

between herself and the appellant and a canSullivan & Chesnut, of Hardy, for appel-cellation of her deed upon a mere failure of lant. David L. King, of Hardy, for appellee. consideration, in that appellant had refused WOOD, J. (after stating the facts

to provide food and clothing and had failed

as above). [1] 1. Appellant contends that the to comply with his contract to support apdemurrer to the complaint should have been pellee and her mother by refusing or negsustained for the reason that the appellee lecting to furnish creature comforts that did not tender therein compensation for the were necessary for their physical existence, betterments nor offer to restore the benefits then we would hesitate to say that the proof she received from the appellant. The gener was sufficient to warrant the finding and deal rule is that a plaintiff in a suit for the cree of the court. For while the appellee rescission or cancellation of a written instru- testified in a general way that appellant had ment should allege in his bill that prior to never supported her or her mother, had nevthe institution of his suit he had made a for- er furnished them anything, and that the mal tender to restore to the defendant what-home place took care of them and supported ever benefits he had received as the result of them, and that they sold chickens and eggs the transaction, or that he had offered to re- to help buy their supplies, yet her testimony turn such benefits. This principle grows out further shows that it was understood that of the equitable maxim that "he who seeks she was to keep house for herself, her mothequity must do equity.” 4 R. C. L. pp. 511-er, and appellant, and they were all to live 513.

together. It further shows that he managed [2] The rule is not applicable here for the the farm and had control of everything on reason that the allegations of the appellee's the place. Her testimony shows that it was complaint show that the appellee received no contemplated that she was to do work on benefits whatever by way of consideration the place. In fact she testified that she for the deed which she executed to appel- picked cotton, not because she had to, but lant. ,

But, on the contrary, the allegations of because she wished to do so. While her tesher complaint show that as a result of the timony shows that the appellant neglected conveyance the appellant had received per- her and did not furnish her food and clothsonal property belonging to the plaintiff ing and protect her from hard labor as she