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At that time the witness Holcomb, with [father who had recently suffered a stroke of whom McCurry was conversing over the paralysis, to one of his three sons, for an exphone, did not know, and had never seen, the pressed consideration of $25 in cash and the men to whom the goods were to be furnished. agreement of the son to support the father In detailing the contract made with Mc- such part of the property as he, the grantee, during his life, and to give the other two sons Curry, Grady testified: wished, held invalid under the evidence, as having been executed by the father while incapable of transacting business.

"He told us to furnish these men and make

out a statement on the 15th and 1st of each month, and send it in to the Dierks Lumber & Coal Company and they would pay these bills."

And, further, that

"Mr. Sanders started trading with us about the last of August, and traded with us until he left the country, and they kept paying his accounts off every time we would send in a statement."

There is an almost unlimited number of cases dealing with the question of whether a particular undertaking to pay for goods furn

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ished to a third person is original or collater-3.

Appeal and error

715(2)-That evidence

was omitted from abstract cannot be shown by affidavit.

Affidavits in support of a suggestion that evidence heard on the trial was omitted from the transcript add nothing to the suggestion, as incorrect or incomplete transcripts cannot be corrected by affidavit.

4. Appeal and error 939-Transcript properly certified by clerk presumed true and perfect copy of record.

The presumption must be indulged that a transcript filed in the Supreme Court contains a true and perfect copy of the record,

al. There is an extended case note to the case of Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214. A great many cases are collected and cited in this note. But it is unnecessary to review the authorities on this subject, as the law is well settled by the decisions of our own court. In the case of Millsaps v. Nixon, 102 Ark. 435, 144 S. W. 915, the court said that, in determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded, and in determining such intention the words of the prom-if properly certified by the clerk. ise, the situation of the parties, and all the circumstances attending the transaction should be taken into account, the purpose of the inquiry being to determine to whom the A certificate of the clerk to the transcript credit was originally given. And when that on appeal, certifying that it contained all teshas been done in the instant case, we think timony on file in the clerk's office, was comthere was a question for the jury as to plete and sufficient, unless there was a conwhether or not the credit had not been origi-flict between the certificate and the decree. nally extended to appellee, and that question should have been submitted to the jury.

In announcing this conclusion we have, of course, taken into account only that testimony which tends to support that contention, and have not considered any question of probability or of preponderance of the testimony, as these are properly questions for the jury. For the error in directing a verdict the judgment of the court below must be reversed, and the cause remanded for a new trial.

(149 Ark. 215)

MASSEY V. KISSIRE. (No. 49.) (Supreme Court of Arkansas. June 13, 1921.

Rehearing Denied July 4, 1921.)

1. Deeds 211(1)-Conveyance by father to son of all the father's property held invalid as having been executed while the father was insane.

A deed and contract conveying all his property, real and personal, executed by a

5. Appeal and error 612(5)-Certificate of transcript as containing all testimony on file held sufficient.

6. Appeal and error 664(1)-Decree controis, when in conflict with clerk's certificate as to evidence upon which case heard.

Where there is a conflict between the decree and the certificate of the clerk to the transcript as to the evidence upon which the case was heard, the decree will control.

7. Appeal and error 664(1)-Decree held not in conflict with clerk's certificate.

There was not necessarily any conflict between a decree reciting that the case was heard upon the "proofs," and the clerk's certificate to the transcript certifying that it contained all the testimony on file in his office, and hence the transcript on its face was complete. 8. Appeal and error 660 (2)-Proper proceeding, when transcript, complete on its face, does not contain all the evidence, stated.

Where the transcript on its face was complete, if oral evidence was heard in the trial court, not incorporated in the transcript, it was appellee's privilege to suggest a diminution of the record and request time to obtain a nunc pro tunc order showing that the case was

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

Hart, J., dissenting.

(232 S.W.)

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor.

heard upon oral evidence not incorporated in a recited consideration of $25 in cash, supthe transcript, and when this was done he port for the balance of his life, and love and would have been entitled to an affirmance, un- affection. The contract, in substance, transless appellant on request had been able to com- ferred all the personal property of H. C. plete the record by bringing the oral evidence Kissire to his son H. L. Kissire, consisting of into the transcript by proper proceedings. a bank account of $3,578.49, $700 in bonds and stamps, and a few other items of personal property, for a recited consideration of love and affection, $25 in cash, and support and burial expenses, and such assistance as H. L. Kissire might desire to render his other two sons, Oliver and Melvin, and to furnish Oliver and Melvin a home as long as they conducted themselves in a manly way and were not abusive to H. L. Kissire or his wife. The contract contained a proviso to the effect that, should H. L. Kissire fail to furnish H. C. Kissire support or fail to render as

Suit by H. L. Kissire against the Citizens' Bank of Morrilton, consolidated with a suit by W. O. Massey, Guardian of H. C. Kissire, against H. L. Kissire. Decree for H. L. Kissire, from which decree W. O. Massey, guardian, appeals. Reversed and remanded. J. W. Johnston, of Morrilton, for appellant.

J. Allen Eades, of Morrilton, for appellee. sistance to Oliver and Melvin as agreed upon,

HUMPHREYS, J. On the 10th day of March, 1920, appellee, H. L. Kissire, instituted suit in the Conway chancery court to compel the Citizens' Bank of Morrilton to cash a check for $3,578.49, drawn in his favor by his father. H. C. Kissire, against his father's checking account in said bank.

The Citizens' Bank of Morrilton interposed the defense that H. C. Kissire was insane, and on that account incapacitated to issue the check.

On the 19th day of April, 1920, appellant, W. O. Massey, the duly appointed guardian of H. C. Kissire, instituted suit against the appellee, H. L. Kissire, in the same court, to cancel a contract and deed of date February 24, 1920, purporting to have been executed by H. C. Kissire to H. L. Kissire, transferring and conveying all his personal property and real estate, upon the ground that H. C. Kissire was insane at the time the contract and deed were executed.

such failure should abrogate the contract, in which event the cash consideration of $25 should be paid back and such property as was remaining turned back to H. C. Kissire, except the lands conveyed by the deed. H. L. Kissire was 34 years of age and almost blind, and resided in the home of H. C. Kissire, with the other two sons, who were also blind at the time the instruments aforesaid were executed.

On behalf of appellant, T. J. Kissire, a brother of H. C. Kissire, W. O. Massey, the duly appointed guardian of H. C. Kissire, Mrs. Addie Crook, a neighbor, and M. H. Dean, county and probate judge of said county testified that H. C. Kissire was mentally incapacitated to transact business at the time he executed the contract and deed. T. J. Kissire stated that he had visited H. C. Kissire frequently after he suffered the paralytic stroke until the early days of March, 1920; that his mental and physical condition was "pretty sorry," and that during the entire period he was incapable of transacting business; that he was incapable of understanding the nature of a contract or a conveyance of any kind. Mrs. Addie Crook stated that she had seen him, during the

Appellee, H. L. Kissire, filed an answer, admitting the execution of the instruments, and alleging that at the time of the execution of them his father, H. C. Kissire, was of sound mind. The causes were consolidated and submit-period he had lived near her, from one to ted to the court upon the pleadings and evidence, which resulted in a decree sustaining the validity of the contract and deed, and vesting all the property, both personal and real of H. C. Kissire, in H. L. Kissire, from which decree is this appeal.

[1] The record reflects that H. C. Kissire was stricken in the late summer or early fall of 1919 with paralysis; that he never transacted any business after that time except to execute the contract and deed on February 24, 1920, transferring all his property to his son, H. L. Kissire, and to sign his name in order to cash a stamp at the post office. The deed in question conveyed lots 1, 2, and 3 in block 8, Brown's addition to the town of Morrilton, Ark., which constituted H. C. Kissire's home, to his son, H. L. Kissire, for

three times a day; that she had heard him talk and was of opinion that he was unfit to transact business of any kind during the entire time. W. O. Massey testified that H. C. Kissire had not been able to transact any business since his misfortune in the late summer of 1919; that he came to the bank the latter part of August, 1920, in company with his son and W. J. King. The following interrogatory and answer appears in the evidence of W. O. Massey:

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meant by it, and he said he did not know, and the old man said something about coming to the Bank of Morrilton to see about his account, and I told him I had been over there and looked after that; that his account was square with the Bank of Morrilton, but they had $100 bond over there, and I got the bond and had it put away for him. Then his mind flashed a little bit and he said something about the boys had pretended to take care of him, and stood awhile and did not say anything more for a few minutes. I went and got his account and told him the amount he had on deposit and also told him that the interest due on his account at that time would amount to about $150, but he did not seem to realize the amount he had to his credit. His mind seemed to be on, and he kept asking about some cotton, $116 worth of cotton. Then he turned around and went out and said, "Take care of my money until I call for it.' That was all."

younger sons, as well as the affliction of the son to whom he conveyed all the property, the contract, in its very nature, was an improvident one. When the nature of the contract is considered in the light of the evidence of disinterested witnesses. who had ample opportunity to judge of the mental capacity of H. C. Kissire from association and conversation, we think the great weight or preponderance of the evidence supports the view that H. C. Kissire was incapable of transacting business when he executed the deed and contract in question.

The chancellor's finding was contrary to the weight of the evidence, and, for that reason, the decree is reversed, and the cause remanded, with instructions to cancel the contract and deed.

On Rehearing.

[2] Our attention is again called to the fact that we took no notice in the orignal opinion of the suggestion of appellee that appellant had not complied with rule 9 in refer

Judge M. H. Dean testified that he saw H. C. Kissire often during the fall of 1919, and later visited him at his home and tried to engage him in conversation: that he became convinced, from his visits and conversations, that H. C. Kissire was not capable of trans-ence to abstracting the pleadings. It is uracting business or protecting his interests; that he saw him during the latter part of January and through February, 1920, and found him wholly incapable of transacting business; that on March 12, 1920, H. C. Kissire's mind was a blank on what one might ask him; that on one occasion, in February, he tried to talk with him on business matters; that he could not talk intelligently and denied that he owned his home upon which he was residing at the time, and which belonged to him.

On behalf of appellee, he, Oliver Kissire, Melvin Kissire, Oma Kissire, and J. A. Eades, who prepared the contract and deed and took the acknowledgment of H. C. Kissire to the deed and acknowledgments of both of the parties to the contract, all testified that the contents of the instruments were suggested by H. C. Kissire himself, and that his mind was clear and mental condition good at the time he executed the instruments; that he understood the nature and effect of both instruments. H. L. Kissire, in describing the general condition of his father's mind, said that "part of the time he talked with good sense, and part rambling." He said, however, that on the day he executed the instruments his mind was clear.

gently insisted that appellee is entitled to an affirmance of the decree of the chancery court because appellant failed to abstract any of the pleadings, in keeping with the rule, and omitted entirely to abstract appellee's answer and demurrer to appellants' bill. The purpose of the rule invoked is to get the issues presented in the trial court clearly before this court. This purpose was accomplished by appellee supplying all the evidence necessary, omitted from appellant's abstract, to place the case fairly before this court. The reason we did not refer in the original opinion to this insistence of appellee was because it was stated by appellee that he would "make such additional abstract of the testimony as will place the case fairly before the court." Appellee did this in such way that the real issue in the case became apparent, and enabled this court, with the issue thus defined, to determine the case upon its merits.

[3-5] Appellee suggested in his original brief that the transcript did not contain all the evidence heard by the trial court, and insisted then, and strenuously insists now, that he was entitled to an affirmance of the decree under the well-known presumption that the evidence omitted was sufficient to sustain the decree. On motion for rehearing, appellee After a careful reading and consideration supports his suggestion that evidence heard of the evidence, we are convinced that H. C. in the trial was omitted from the transcript Kissire was not capable of comprehending by filing affidavits to that effect. These affithe nature and effect of the contract and davits add nothing to the original suggestion, deed executed by him to his son on the 24th because incorrect or incomplete transcripts day of February, 1920. The son to whom cannot be corrected by affidavit. Memphis he conveyed the property was almost blind. Land & Timber Co. v. Bd. Dir. of St. Francis The provision made for his two younger Levee Dist., 70 Ark. 409, 68 S. W. 242. The sons, who were blind and in a way helpless, presumption must be indulged that a tranwas dependent in a large measure upon the script of a case filed in this court contains a will of H. L. Kissire and his wife. Consider- true and perfect copy of the record, if propering the condition of himself, that of his two | ly certified by the clerk. Upon the suggestion

(232 S.W.)

that the record in this case was incomplete, [ ing, we adhere to the conclusions reached as we examined the certificate of the clerk and announced in the former opinion. the decree of the court. That part of the clerk's certificate relating to the evidence incorporated in the transcript is that the "foregoing record contains all testimony on file in my office, in the cases," properly styling them. The contention is made that the certificate is insufficient, because it says that the evidence on file in the clerk's office is the evidence incorporated in the transcript. This is the only evidence that could be incorporated in the transcript. It would be improper to incorporate in the transcript evidence not apincorporate in the transcript evidence not ap pearing in the record of the case. This certificate is therefore complete, unless there was a conflict between the certificate and the decree of the court. Certificates in substan

tial conformity with this certificate were held to be complete in the cases of Turpin v. to be complete in the cases of Turpin V. Beach, 88 Ark. 604, 115 S. W. 404. and Kampman v. Kampman, 98 Ark. 328, 135 S. W. 905.

[6,7] This court is committed to the doc[6,7] This court is committed to the doctrine that, where there is a conflict between the decree of the court and the certificate of

the clerk as to the evidence upon which the case was heard, the decree will control. Weaver-Dowdy Co. v. Brewer, 129 Ark. 193, 195 S. W. 367. In the instant case the decree

of the court recites that the case was heard

upon the "proofs." The proofs upon which the case was heard, according to the decree, may have been the identical proofs incorporated in the transcript and certified by the clerk. There is not necessarily any conflict

between the decree of the court and the cer

HART, J. (dissenting). It seems to me that the case of Turpin v. Beach, 88 Ark. 604, 115 S. W. 404, is against rather than in favor of the majority opinion. In that case the decree recited that the case was heard upon the pleadings and the depositions of three named witnesses and other evidence. The clerk certified that the transcript contained a true and compared transcript of all the pleadings, papers, files, and entries of proceedings in the action. There were certain exhibits which had not been attached to the depositions as required by statute. The court said that the statute intended greater certainty in proving the exhibits which were held to be inde pendent evidence, and that the words "other evidence" should be taken to refer to them. evidence" should be taken to refer to them. This is in application to the well-known doctrine of ejusdem generis. The record recites that the case was heard on the depositions and other evidence, meaning other evidence

of like character.

it was heard upon the pleadings and proof. In the present case the record recites that The word "proof" is broad enough to include oral as well as written evidence. The certificate of the clerk is that the "foregoing record contains all testimony on file in my office in the case." There is nothing to indicate that the oral testimony was ordered to be reduced to writing and filed. The clerk is careful to certify that the transcript only contains the testimony on file. If oral testimony was heard, it would not be on file, and therefore is not included in the transcript.

Counsel for appellee called our attention to this matter before the case was heard, and asserted that the case was heard partly on oral evidence. I think that the burden was

tificate of the clerk, so the transcript on its face is complete. This court ruled, in the case of Turpin v. Beach, supra, that, where the decree recited that the cause was heard upon "the depositions of three witnesses and other evidence," and no other evidence ap-on appellant to correct the record, so as to peared in the transcript, except exhibits show that the case was not heard on oral evthat were attached to the three depositions, idence, if that was a fact. The affidavits inno conflict existed between the decree of the troduced by appellee were not introduced to court and the certificate of the clerk, for the contradict the record, or to correct it here. reason that the words "and other evidence" They were introduced merely to show good could be construed as relating to the exhibits. faith on the part of appellee. They have not [8] As the transcript in this case on its been controverted, and so it seems certain, face is complete, and oral evidence was heard then, that the case was heard partly on oral in the trial court, not incorporated in the evidence. If such was the case, I think the transcript, appellee was privileged to suggest ends of justice would have been better served a diminution of the record, and to request by allowing a correction of it to have been time to obtain a nunc pro tunc order showing made in the chancery court, and that the that the case was heard upon oral evidence hearing of the case should have been continnot incorporated in the transcript. After ob- ued in this court until there was an opportutaining a correction of the record to that ef- nity to apply for a correction of the record fect, then he would have been entitled to an in the court below, so as to make it speak affirmance of the decree, unless appellant, up- definitely on the question of whether the on request, had been able to complete the rec- case was heard partly on oral evidence. If ord by bringing the oral evidence into the the court thought it was the duty of appellee transcript by proper proceedings. to do this, it should have so declared, and After a thorough consideration of the other have given him an opportunity to do so. grounds suggested in the motion for rehear-This is especially true, when we take into

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consideration that appellee had a finding of fact in his favor by the chancellor.

the levee as to protect his land from the waters of a river or because the levee as constructed may prevent such waters from flowing off as it otherwise would or may deepen the water in an overflow of the land between the

embankment and the river.

3. Eminent domain 106 - Although levee district is not liable for damages to property outside levee, it may be liable for damages produced by levee cutting off access.

Family arrangements are favorites of the law, and should not be disturbed when fairly made. In Pate v. Johnson, 15 Ark. 275, the court said that amicable and family settlements are to be encouraged, and when fairly made strong reasons must exist to warrant interference on the part of a court of equity. This doctrine was applied in a much later case, where there was a conveyance made by a daughter to the father, which the court said was not a donation to the father, nor, strictly speaking, a sale and purchase, but was more in the nature of a family settlements of damage are proper, and in condemnaGiers v. Hudson, 102 Ark. 232, 143 S.

W. 916.

In the case at bar all, the parties concerned were practically blind, except appellee, and he was partly so. The family seems to have had that sensitiveness peculiar to blind people, and wished to seclude themselves from the world and to live together as one family. The deed was executed pursuant to this family agreement, and all the family wished it to stand. It may be that the omitted evidence would have abundantly established the correctness of the finding of the chancellor, and I think that the opportunity should have at least been given appellee to have made application in the court below to amend the record, so as to show with certainty that the case was heard partly on oral evidence. Therefore I respectfully dissent.

(149 Ark. 285)

CITY OIL WORKS et al. v. HELENA IM-
PROVEMENT DIST. NO. 1. (No. 57.)

(Supreme Court of Arkansas. June 20, 1921.)

1. Eminent domain 222 (5)-In a proceeding to condemn land for a levee, instruction denying defendant damages because of the levee's being built across industrial track to mill held error under the evidence.

In an action to condemn a right of way for a levee, instruction limiting damages to the value of the land actually taken and denying defendant's right to recover on account of the levee being built across an industrial track to its oil mill held error, where the uncontradicted evidence did not show that the practical use of the oil mill had been destroyed on account of its being left outside of the levee by the

construction of a new levee.

2. Eminent domain 2 (10)-Landowner not entitled to damages because of failure to so construct levee as to protect his land from river waters.

A landowner is not entitled to damages un

der Const. 1874, art. 2, § 22, providing that private property shall not be taken or damaged for public use without just compensation therefor, because of the failure to so construct

damages inflicted upon land by a river, it does not follow that it should not be liable for damages produced by independent causes other than the lands being outside the levee, if the ele

Although a levee district is not liable for

tion proceedings, where defendant's mill was outside of the levee, and its usefulness not wholly destroyed, defendant could recover for the building of a levee across its switch tracks rendering them useless.

4. Eminent domain 205-Evidence held not to show that an oil mill left on the outside of a levee had been thereby rendered valueless, but only by the destruction of its industrial railroad track.

levee purposes, evidence held not to show withIn a proceeding to condemn property for out dispute that defendant's oil mill was rendered valueless because of a levee construction such as to leave it on the outside, although its use was rendered impractical by the levee crossing an industrial track.

5. Eminent domain 112-In a condemnation proceeding the construction of a levee across defendant's industrial track is not a mere incident, but an independent cause producing damages.

In a proceeding to condemn land for levee purposes, the construction of a levee across defendant's industrial track is not a mere incident, but an independent cause producing damages.

Smith, J., dissenting.

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

Action by the Helena Improvement District No. 1 against the City Oil Works and others, as subsequent purchasers from the named defendant, to condemn a right of way. Verdict and judgment for plaintiff, and the Verdict and judgment for plaintiff, and the defendants appeal. Reversed, and remanded for new trial.

This action was brought in the circuit court by Helena improvement district No. 1 against the City Oil Works to condemn a right of way over property belonging to the defendant in Helena, Ark., for the construction of a levee. Subsequent purchasers of the property from this defendant were also made defendants. They answered, setting up damages by reason of the actual taking of a part of the land and the injury to the remainder.

The board of commissioners for the levee

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

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