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e Viola, Ark.

son, which has not been overruled, and / of land in Fulton county, Ark. Barker exwhich the majority does not now seem dis- ecuted to Brown a note due December 1, posed to expressly overrule. We did not 1916, in the sum of $500, and it was recited overrule it in Bank of Midland v. Harris, in the note that the same was "given for 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, balance of purchase on the tract of land [de1255, but, on the contrary we recognized its scribing the land), and that a lien is retainbinding force as a precedent by distinguish- ed on said land until paid in full.” On the ing it from the one under consideration. I same day Brown executed a warranty deed think it would be better to overrule Garnett to Barker conveying him the land, and in v. Richardson in express words rather than the deed a vendor's lien was retained for to. attempt to distinguish it from the present the balance of the purchase money. On Decase.

cember 27th Barker sold the land to W. A. There is a conflict in the testimony in this Cannon by warranty deed. On January 21, case, and the issues ought to have been sub- 1916, Barker paid to Brown on his note the mitted to the jury.

sum of $128, and in April the sum of $12.97, making a total of $170.97 paid by Barker

to Brown on the note. In November or De(134 Ark, 571)

W. PEMBERTON v. BARKER et al. (No. 310.) cember, 1916, Cannon sold the land to w.

H. Pemberton. On the 28th of February, (Supreme Court of Arkansas. April 22, 1918.) 1917, Brown instituted suit in the chancery 1. VENDOR AND PURCHASER Om 282 REME- court against Barker, Cannon, and PemberDIES OF VENDOR-DECLARATION OF LIEN. In suit by the vendor of land for temporary

ton. Cannon and Pemberton being nonresirestraining order until he could have his claim dents, a warning order was issued, and P. for lien for the purchase money fixed upon the C. Goodwin was appointed by the clerk of land, which he had sold to one defendant, and the circuit court to notify them of the suit. which the latter had sold to another defendant, both of which sales were made subject to the On March 17th Goodwin waived the service debt of $500 for the purchase money due from of notice by Brown to take depositions at the vendor to his predecessor in title, where the Viola, Ark. On March 24, 1917, Barker vendor set up that since the sale made by the waived the service of a notice for the taking one defendant to the other he had been compelled to pay $172.97 on the note executed by of depositions and the depositions of one him to his predecessor, and alleged that, under Pardew, a partner of Barker in the mercanthe terms of the sale from him to the one de- tile business, was taken, and also the deposifendant and from the latter to the other defendant, he was entitled to have the same declared tion of Brown, in which he testified that he a lien on the land, his complaint contained had been paid on the note in suit the sum facts constituting a cause of action, and demur- of $170. rer was properly overruled.

On the first day of the April term, 1917, 2. JUDGMENT Ow704-RES JUDICATA.

Decree on the merits, on the issues joined of the chancery court, the court found that in suit by the original vendor of land, in his Barker had been summoned and had failed favor against the buyer from him, was not an to demur, answer, or otherwise plead, and adjudication of the rights of the buyer as found that there was a balance due on the against one who bought from him. 3. JUDGMENT Omw713(1)-RES JUDICATA.

note executed by him to Brown in the sum A judgment rendered by a court of compe- of $377.58, and entered a decree against him tent jurisdiction on the merits is a bar to any for that sum, and declared the same a lien further suit between the same parties or their upon the land, and ordered the same sold privies on the same cause of action. 4. VENDOR AND PURCHASER 285(3)-FORE

to satisfy the amount of the decree, unless CLOSURE OF LIEN-PRIORITY.

the same were paid in 60 days, and appointIn suit by the first buyer of land against ed M. C. Carter commissioner to execute the the immediate and a remote purchaser from decree. him, the court correctly treated the petition or complaint of the first buyer against the remote

On July 16, 1917, Barker presented to the purchaser as for the sum claimed on the origi-chancellor in vacation his petition against nal action by the original vendor against the the other parties, Cannon and Pemberton, first buyer, and ruled properly in declaring the setting up that he was entitled to a second lien and satisfy both the original vendor's lien and that lien on the land for the sum of $172.97, and of the first buyer, preserving in the distribution asked that the commissioner be restrained of the proceeds the priority of the original ven- from selling the land under the decree of dor.

April 9, 1917, until his lien also could be deAppeal from Fulton Chancery Court; Geo.clared against the land subject to the lien T. Humphries, Chancellor.

of E. T. Brown. The chancellor, in vacation, Suit by J. C. Barker against H. W. Pem- granted the temporary restraining order. berton and another. From decree for com- On the first day of the October term of the plainant, defendant Pemberton appeals. Af- chancery court, 1917, Pemberton filed his defirmed.

murrer to Barker's petition, which was by Percy C. Goodwin, of Salem, for appellant. the court overruled, and to which ruling

Pemberton duly excepted. On the 11th of FOOD, J. On December 18, 1915, E. T. October, 1917, Pemberton filed his answer, Brown sold to J. C. Barker a certain tract and on the same day the cause proceeded to

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

trial. All the papers in the original suit, 1106. But the rights of Barker to have a lien were offered and read in evidence by agree- declared on the land against Pemberton subment of all parties and oral testimony was ject to the prior lien of Brown, as we have heard and by order of the court was reduc- stated, was not and could not with proprieed to writing by the clerk and filed and ty have been made an issue in the suit bemade a part of the record.

tween Brown and Barker. While the deThe court found that Barker sold the land cree at the former term in favor of Barker purchased of Brown to Cannon, and Cannon was a final adjudication that Brown was sold to Pemberton, charged with the lien of entitled to the lien on the land and a sale Barker to Brown; that after these sales of same to satisfy the debt due him by BarBarker paid the sum of $172.97 on his note ker, nevertheless the sale had not taken to Brown, for which amount he had a ju- place when Barker filed his complaint for nior lien, subject to the lien of Brown; and a temporary restraining order and to have the court entered a decree in favor of Bar- his lien declared against Pemberton. The ker against Pemberton for the sum of $172.- court still had jurisdiction over the cause in 97, and declared the same a lien upon the the matter of directing the sale, and of conland, and directed that unless the amount firming and approving the same when made. of the decree entered in favor of Barker be [4] The court correctly treated the petipaid in 10 days, that the land be sold to sat- tion or complaint of Barker against Pemberisfy the decree; and that the proceeds aris- ton as for the sum claimed on the original ing from the sales, after deducting the action, and to have his lien for purchase costs of the suit, be applied first to the sat- money declared on the land. There was no isfaction of the decree in favor of Brown, error in the court's ruling in declaring such and the remainder, if any, to be applied to lien, and in directing the sale of the land the satisfaction of the decree in favor of to be made to satisfy both liens, but preservBarker. Pemberton appeals.

ing in the distribution of the proceeds of the [1] 1. The court did not err in overruling sales the priority of Brown. appellant's demurrer to the complaint of the We find no error in the decree of the appellee Barker. Barker was only seeking court, and its judgment is therefore affirmed. a temporary restraining order until he could have his claim for the lien on the land for

(134 Ark. 15) the purchase money due him declared and

MAUNEY et al. v. MILLAR. (No. 305.) fixed upon the land which he had sold to Cannon, and which Cannon had sold tc (Supreme Court of Arkansas. April 22, 1918.) Pemberton, both of which sales were made

1. JUDGMENT Om744RES JUDICATA-MATsubject to the debt of $500 for the purchase TERS BARRED. money due from Barker to Brown. Barker Previous decrees between parties to a lease set up that since the sale made by him to raised as to lessor's charge of fraud by lessee

rendered in state and federal courts on issues Cannon and the sale made by Cannon to in procurement of mining lease and as to failPemberton he had been compelled to pay the ure to comply with the lease are binding on such

parties, where another suit raises the same issum of $172.97 on the note executed by him sues, except as to breaches arising since the last to Brown for $500. He alleged that under adjudication. the terms of the contract of sale from him 2. MINES AND MINERALS Om 68(2)—LEASEto Cannon and from Cannon to Pemberton BREACH-REMEDIES.

If the lessee under contract to develop a he was entitled to have this sum de

mine completely abandons performance, a court clared a lien upon the land. His complaint of equity will relieve the lessor by canceling the contains allegations which set up facts suf-contract where the lessor's sole benefit is a ficient to constitute a cause of action in share of the proceeds of the mine, but for a which he was entitled to the relief sought, their remedies at law.

partial breach the parties will be remitted to and the demurrer was therefore properly 3. MINES AND MINERALS em 68(2)-LEASEoverruled.

BREACH BY LESSEE – EVIDENCE - WEIGHT [2, 3] 2. Appellant's plea of res adjudicata AND SUFFICIENCY. was likewise correctly overruled. The de- ings of the chancellor that the proof was in

Evidence held sufficient to sustain the findcree at the former term in favor of Brown sufficient to sustain the allegation that the lesagainst Barker was on the merits and a final sees of a mine were not substantially complydecree as between Barker and Brown. But ing with the lease contract. this decree on the issues joined by Brown

Hart, J., dissenting. and Barker was not an adjudication of the Appeal from Pike Chancery Court; Jas. rights of Barker as against W. H. Pember- D. Shaver, Chancellor. ton.

Suit by Bettie L. Mauney, as administraThe rule is well settled that a judgment trix of the estate of M. M. Mauney, derendered by a court of competent jurisdic- ceased, and others, against Austin Q. Millar, tion on the merits is a bar to any further as trustee. From a judgment dismissing the suit between the same parties or their priv- coinplaint, plaintiffs appeal. Affirmed. ies upon the same cause of action. 23 Cyc. See, also, 117 Ark, 633, 175 S. W. 402.

W. C. Rodgers, of Nashville, for appel- mines, and that the lessor should have the lants. Thos. C. McRae, W. V. Tompkins, privilege of taking over the whole of the D. L.' McRae, and C. H. Tompkins, all of output at that price, or that the lessor might Prescott, for appellee.

fix the price and the lessee' have the priv

ilege of taking over at that price, and the McCULLOCH, C. J. M. M. Mauney owned amount divided. 40 acres of land in Pike county, Ark., which The lessee and his associates subsequently contained a deposit of Kimberlite or dia- organized a corporation known as the Kimmond-bearing dirt, and sold 30 acres of it to berlite Diamond Mining & Washing Compaparties who organized a corporation known ny, and assigned the lease contract to that as the Ozark Mining Company for the purpose concern.

Still later the lease was assignof developing it. On April 3, 1912, Mauney ed by the corporation above named to the entered into a contract with Howard A. Mil-original lessee, Howard A. Millar, and Auslar, whereby he leased the remaining 10 tin Q. Millar and W. V. Wilder as trustees. acres to Millar for a period of 50 years for The lessee and his assigns proceeded with the purpose of having the same developed preparation to develop the mine and expendand operated as a diamond mine. The 10 ed approximately $100,000 in constructing the acres covered by the lease was known as the washing plant, tramroads, and other equip“Mauney Diamond Mine.” The written con- ments for operating the mine. The attempt tract recited that Mauney desired to have of the Ozark Mining Company to develop the the property developed and worked, and that other land into a diamond mine proved a Millar was a practical mining engineer, with financial failure, and the company went into considerable experience in testing out depos- bankruptcy. The lessee under the contract its of Kimberlite, and was associated with wth Mauney purchased the Ozark property business men of large means who would be- and carried on development operations in come interested in developing the mine. The connection with the development of the Maunundertaking was, on the part of the lessee, ey mine. No improvements were constructed, that he and his associates and assigns however, on the Ozark property, but dirt would

from that property was carried to the wash"diligently and faithfully prosecute the work ing plant, which was constructed for the of development of said property as outlined development of the Mauney mine. On April herein in a scientific and practical manner and 11, 1913, Mauney instituted an action against to begin operation within 30 days from April 10, 1912, by taking such preliminary steps to the Kimberlite Diamond Mining & Washing wards the preparation of plans and purchase of Company as the holder of the lease contract machinery necessary to carry on the work in to cancel the lease on the ground of fraud in contemplation and to erect and install a modern washing and concentrating plant of African type procurement by the lessee; it being alleged within one year from April 10, 1912, and much that the lease was not entered into in good earlier as can reasonably be done and in good faith for the purpose of carrying it o’t, but faith and with diligence to begin washing for that it was entered into with the fraudulent diamonds within one year from said 10th day of April, 1912, and as much earlier as can rea- purpose of depreciating the value of the sonably be done, and to treat and wash for the property so that the title in fee could be recovery and extraction of diamonds and other acquired, and that the lessee had failed to precious stones a minimum of 10,000 loads of comply with the contract. That case was material from the first described tract of land known as the Mauney diamond mine 'property, instituted in the chancery court of Pike counduring each and every year of this lease, and ty, but was removed to the federal court, and as much more as can reasonably be done.” upon final hearing a decree was rendered dis

The last clause of the contract reads as missing the complaint for want of equity. follows:

In April, 1914, Mauney instituted a second “The lessees shall in no event cease work for action against the lessee to recover possesa longer period than three months continuously sion of a lot of diamonds which had been unless a necessity therefor should arise by the mined from the land, and in the complaint act of control of the lessees or from physical or other alleged that the lease had been entered into conditions which are not the fault of the lessees by the lessee with the fraudulent intention and which could not reasonably be guarded of not complying with it, and that it was against, but this clause of this lease shall not operate or be construed to release the lessees void from the beginning. That case was from washing and treating for diamonds as tried before a jury, and upon special intermuch as 10,000 loads of dirt every year, and rogatories submitted, which the jury answeras much more as can reasonably be done."

ed, there was a finding that the lessee had The contract further provided that the les- not entered into the contract with a fraudusor should receive as his share one-fourth lent purpose, and had not failed to comply of the diamonds and other precious stones with the terms of the lease. Judgment was and minerals taken from the leased land, and entered in favor of the lessee, and that judgthat the lessee should receive the other ment was, on appeal, affirmed by this court. three-fourths, and that the output should be 117 Ark. 633, 175 S. W. 402. reported every three months and divided M. M. Mauney died in the year 1915, and according to the terms of the contract. It his wife, Bettie L. Mauney, who had joined in also provided that the lessee should fix the the lease contract, became the administratrix price of the diamonds extracted from the of the estate, and on May 11, 1915, she entered into a contract with the lessee for a divi- | back no farther than the last of the adjudision of the stock of diamonds then on hand. cations thereof, and must be tested solely The contract provided for an assortment and by proof tending to show a breach of the classification of the diamonds and a divi- contract since that time. sion thereof according to the terms of the [2] After consideration of the testimony original contract. That contract was fully we have reached the conclusion that there complied with, and the administratrix re- is not a preponderance against the finding of ceived her intestate's share of the stock of the chancellor. The contract contains no diamonds, and gave a written receipt there express provision for forfeiture of the lease, for.

and counsel for defendants invoke the esThe present action was instituted by the ad- tablished rule that a tenancy cannot be terministratrix and the children of M. M. Maun-minated for breach of covenant by the lessee ey August, 1916, against the three trustees where there is no express provision for a holding the lease contract as assignees. It forfeiture, and that a court of .equity will was first brought as an action at law to re- not lend its aid to declare a forfeiture on cover possession of diamonds which had been account of a breach of the contract. 1 Pom. taken out of the mine since the former settle- eroy's Equity, & 459; Buckner v. Warren, 41 ment and division, but the complaint contain- Ark. 532; Little Rock Granite Co. v. Shall, ed the same allegations as the complaints in 59 Ark. 403, 27 S. W. 562; Williams v. Shavthe former actions concerning fraud in the procurement of the contract and the failure er, 100 Ark. 565, 140 S. W. 740.

There is another principle, however, equalof the lessee and his assignees to perform the contract in good faith. It is alleged that ly well established that where one party to a

contract has completely abandoned performthe defendants had quit working on Mauney mine and were devoting all of their ance, a court of equity will give relief by equipment to the development of the Ozark canceling the contract, and that principle is property, which was adjoining, and had fail- applicable to a contract of this kind where ed to proceed in good faith with the develop the sole benefit is to result from continued ment of the Mauney mine, and had failed performance such as one to develop a mine to

Mansto take out and treat as much as 10,000 loads pay royalty or divide the proceeds. of dirt, and as much more as could reasona- field Gas Co. v. Parkhill, 114 Ark. 419, 169 bly be done, as stated in the contract. There S. W. 957. For a partial breach of the conwere other allegations in the complaint with tract the parties thereto will be remitted to respect to the failure of the defendants to their remedies at law, but in case of an abanpermit plaintiffs to have access to the mine. donment equity will afford relief by rescisThere was an answer and cross-complaint sion and cancellation. filed, and by consent the case was transfer- The contract in the present case clearly red to equity and heard there as a suit to contemplated a persistent effort to develop cancel the lease. The chancellor, upon the the mine. It provides for a minimum amount hearing of the case, denied the relief pray- of dirt to be taken out and washed, but fured for, and dismissed the complaint for want ther provides that the work shall be carried of equity.

on with diligence, and that as much as rea[1] The proof adduced by the plaintiffs sonable should be taken from the mine. If was given wide range, extending back to the the proof was sufficient to sustain the charge negotiations between the parties at the time in the complaint that the defendants were of the execution of the original contract, and not substantially complying with the conthe effort was to establish the old charge tract, relief should be granted, but we do that the contract was not entered into in not think that the proof is sufficient to overgood faith, but for the purpose of tying up turn the finding of the chancellor against the property by a long-term lease so that that contention. It is undisputed that dethe lessee could eventually acquire title. fendants have taken out the minimum quanThe defendants pleaded the decree in the tity of dirt specified in the contract; that is federal court, and also the judgment of the to say, 10,000 loads per annum. Millar tescircuit court in the replevin suit in bar of tified that the year preceding the commencethe right to sue to cancel the contract on ac-ment of this action he took out of the Mauncount of fraud in its procurement, and also ey mine 11,219 loads, and from the Ozark in bar of the charge that there had been a property only 819 loads. The testimony adfailure to comply with the terms of the con- duced by plaintiffs tended to show that about tract up to the time of those adjudications. the same quantity of dirt was taken from the It is clear, we think, that each of those cases Ozark property as from the Mauney mine, constituted an adjudication of the issues but the statements of the witnesses are concerning fraud in the execution of the vague, and they do not undertake to specify contract, and also constituted adjudications the quantity of dirt taken. Millar explained that the terms of the contract had not been the purchase of the Ozark property by his broken by the deferidants up to the time of company, stating that there was danger of the institution of those suits. The right of his company incurring liability for injury to

ments or walls after excavation on the min-defense of justification turn upon what deceasing property, and that he was advised by at- ed was doing at the time the fatal shot was fired, torneys that he could buy the Ozark propers was made clear that the conduct of deceased

where by the remainder of the instruction it ty at a very low price, and that there would referred to was the impression induced in acbe economy in buying the property on the cused's mind while acting in good faith and as grounds stated above to escape liability as a reasonably prudent person. aforesaid.

EVIDENCE
O

SUFFI-
He further testified that they 5. HOMICIDE Cm 254 —

CIENCY. had not spent any money on the improvement Evidence held sufficient to support a conof the Ozark property, and had only mined viction of murder in the second degree. dirt sufficient to dig drainways to carry off Appeal from Circuit Court, Stone County; the flow of water from the Mauney mine. Dene H. Coleman, Judge. He explained that there was drainage from James Branscum was convicted of muranother property called the Reyburn proper- der in the second degree, and he appeals. ty, which also adjoined the Mauney proper- Affirmed. ty, and that the drainage from that prop

Appellant pro se. Jno. D. Arbuckle, Atty. erty over the Mauney property could only be Gen., and T. W. Campbell, Asst. Atty. Gen., carried off over the Ozark property, and for the State. that in digging the drainways they hauled the dirt thus taken out and, washed it. It SMITH, J. [1] This appeal is prosecuted

] is undisputed that the defendants and their to reverse the judgment of the court below, associates have spent a very large sum of pronounced upon the verdict of the jury money, approximately $100,000, in developing finding appellant guilty of murder in the secand starting operations on the Mauney mine. ond degree. The punishment was left by the

We do not think that the proof is suffi- jury to be fixed by the court. In impanelcient at this time to justify a finding that ing the jury the court held Arthur Brittain there has been such an abandonment of the and Leonard McAllister to be competent juoperations for a court of equity to grant re- rors, and exceptions were saved to that rullief by canceling the contract.

ing on the ground that they were shown to This decision is, of course, without prej- have such fixed opinions concerning appeludice to the rights of the plaintiffs to bring lant's guilt as to render them incompetent. another action at any time it may appear The jurors were examined at length by atthat there has been an abandonment of the torneys representing the state and the apcontract, or a substantial failure to carry | pellant and thereafter by the court. The out its terms.

answers of these veniremen were very simiDecree affirmed.

lar on their voir dire; but there appears to

be more question about the competency of HART, J., dissents.

Brittain than there was about McAllister.
No attempt was made to show that either

venireman entertained any prejudice against (134 Ark. 66) BRANSCUM v. STATE. (No. 315.)

appellant, and it appears that the opinions (Supreme Court of Arkansas. April 22, 1918.) stated in response to questions by the court

entertained were based upon rumor and each 1. JURY Omw 103(11) COMPETENCY FIXED

that he could and would base his verdict OPINION.

In a murder prosecution, jurors claimed to solely on the testimony, and the court, therebe incompetent because of fixed opinions. were fore, properly held the jurors competent to properly held competent, where the opinions serve as such. ,

Dewein v. State, 114 Ark. were based upon rumors and they stated that they would base their verdict solely on the tes- 472, 170 S. W. 582. timony.

[2] A witness named Pearce gave damag. 2. WITNESSES ww283—CROSS-EXAMINATION, ing testimony against appellant, and an exRECALL OF WITNESSES.

In a murder trial, where a witness had ception was saved to the refusal of the given damaging testimony against accused, it court to permit appellant to recall that witwas not an abuse of discretion for the court ness and ask him a question which would

| to refuse to permit his recall that his prejudice have tended to show prejudice against the against accused might be shown, where he had

appellant. It appears, however, that the been cross-examined and the state had closed its case and defendant had put in a part of his witness had been cross-examined at length testimony.

by appellant, and the state had closed its 3. HOMICIDE 300(3)-INSTRUCTIONS-SELF- case and had rested and appellant had put DEFENSE.

on a portion of his testimony when the rean ed by defendant, dealing with his right to act quest was made. The trial court must necunder the circumstances as they appear to him, essarily have a discretion in such matters, but not requiring him to have acted "without and as full opportunity for the cross-examifault or carelessness on his part," was properly nation of the witness was afforded before refused. 4. CRIMINAL LAW @mw822(8)-INSTRUCTION- cretion appears in the refusal to recall the

the state's case was closed, no abuse of dis

8 SELF-DEFENSE-CHARGE AS A WHOLE.

In a murder trial, an instruction on self- witness for further cross-examination theredefense was not erroneous because it made the after.

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