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(232 S.W.)

biguous description contained in the lease of date August 1, 1914, from the Misses Roberts to appellees' grantors, to include the lands thus utilized by appellees. We think the acts of the parties under the lease strongly corroborate the evidence tending to show that the west line of the lease was at a point where the uplands and bottom lands in the dower strip intersect.

No error appearing, the decree is affirmed.

(149 Ark. 527)

BOYD et al. v. EPPERSON et al. (No. 98.) (Supreme Court of Arkansas. July 11, 1921.) I. Bastards 6-Finding of legitimacy of claimant's mother held supported by evidence.

intersection of the upland and bottom lands | reconciled on any other theory than that both of the strip, which was in the neighborhood appellants and appellees construed the amof the jog in the strip to the south, 2,476.98 feet west of the east line of said strip. We think it shown by the weight of the evidence that the upland part of the dower strip was intended to be conveyed in the lease of date August 1, 1914, and that no bottom land was intended to be included. The finding of the court, seemingly based upon the best impression of W. N. Adams to the effect that 20 acres was intended to be conveyed, placed the west line of the strip east of what is shown by the weight of the evidence. The finding is therefore more favorable, under the evidence, to appellants, than it should have been; but, according to the finding of the court, the rights to mine the coal under the dower strip, by appellees, where they drove the slope and prosecuted the work, are fully protected, and therefore not challenged by them. Our conclusion of the location of the west line of the dower strip intended in the lease of August 1, 1914, finds support in the subsequent conduct of the parties under the lease. It is true that the Red Devil mine operated by appellants for many years on that part of the Roberts farm west of the Dixon lease, and the mine operated by appellees on the dower strip, and by appellees' grantors on the 20 acres on the east side of the Roberts farm, were all operated without reference to a survey designating the division lines covered by the respective leases under which operations were conducted; but, notwithstanding that fact, it is improbable that any extensive encroachment would have been made by one upon the rights of the other without being discovered at an earlier date.

In action of ejectment, where plaintiffs claimed as heirs at law of the original owner of the land, evidence held to support finding that the mother of one of the plaintiffs was the legitimate child of the original owner.

2. Adverse possession 62(3)-Widow's occupancy pending assignment of dower not adverse holding.

and assign dower to the widow under Crawford It being the duty of the heirs to lay off & Moses' Dig. § 3544, a widow by residing on land belonging to her deceased husband until her death did not acquire title by adverse possession, where the heirs permitted her residence.

Appeal from Grant Chancery Court; J. P. Henderson, Chancellor.

Action by Rose Epperson and others against Henry Boyd and others. On defendants' motion the case was transferred to the chancery court, and there heard. Decree for plaintiffs, and defendants appeal. Affirmed.

This was an action in ejectment brought by appellees against appellants in the circuit court to recover possession of a tract of land.

Appellants answered, denying title in appellees and claiming title in themselves. They also pleaded the statute of limitations. On motion of appellants the case was transferred to the chancery court and heard there.

Appellants had operated the Red Devil mine for a period of about 6 years. The grantors of appellees had operated the Dixon lease in connection with the dower strip for 4 years before leasing the dower strip to appellees, and in doing so had excavated a large area under that part of the dower strip now claimed by appellants. After procuring the right to mine a portion of the dower strip, appellees opened a mine thereon nearby and to the southeast of the Red Devil mine, which was being operated by appellants, and expended large sums in opening same. pellants and appellees then entered into a contract, for a consideration of $300 and other considerations, granting the right to appellees to construct a switch intersecting appellants' switch, which connected with the main line of the Missouri Pacific Railway Company. After constructing this switch, appellees continued to operate the mine opened on the dower strip now claimed by appellants for a period of more than 2 years without objection on the part of appellants. All the parties interested are negroes. Transactions of this magnitude can hardly be Mack Harmon and Miranda Harmon, his

Ap

Both parties claim title from the same source. The land was originally owned by Mack Harmon, who died testate in 1911, in Grant county, Ark., where the land in question is situated. Appellees claimed title to the land as the heirs at law of said Mack Harmon, deceased. Appellants claim title as heirs at law of their mother, who was the second wife of Mack Harmon, and who they claim took the land under his will at his death.

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

nearly every time that he visited the house. According to the testimony of Joe Stoudamire, he knew Mack Harmon and Miranda Harmon in Lexington county, S. C., and remembered that they were married there in 1883. Rose was living with her mother at the time her mother married Mack Harmon. Rose looked to be six or seven years of age when Mack and Miranda married. Witness came to Arkansas in 1888, and Mack Harmon and his family lived in South Carolina at that time. Witness did not know what time they came to Arkansas.

first wife, came to Grant county, Ark., from [ Epperson for 23 years and had done their the state of South Carolina, and settled practice during that time, that he had frethere. Mack Harmon brought to Arkansas quently heard Mack talk about his family, with, him as his family, Miranda Harmon, and that he said that his family consisted of his wife, and Rose Epperson, then Rose Har-himself, Miranda, his wife, and his daughter mon, a little girl about six years old. He Rose. Mack referred to Rose as his daughter first rented land in Grant county and subsequently acquired, by purchase, the land in controversy. In March, 1905, Miranda Harmon secured a divorce from Mack Harmon, and 40 acres of his land were decreed to her. Then Mack Harmon married the mother of appellants and lived with her until his death. He made a will and devised to Nora Sites 20 acres of land and the balance to his wife, Frances Harmon. Nora Sites is the daughter of Rose Epperson, and Frances Harmon is the mother of appellants, they being her children by her first husband. Miranda Harmon was a witness for appellees. According to her testimony she was married to Mack Harmon in Lexington county, S. C., but does not remember the date of her marriage. Appellee Rose Epperson is her daughter by Mack Harmon, and she was born in South Carolina after the marriage. The witness does not remember how long, but it was something like a year or two after their marriage. The witness does not remember what year they came to Arkansas, but according to the white folks it was 34 or 35 years ago, and Rose was then 4 or 5 years old. Mack always treated Rose as his daughter and so spoke of her to other people. Rose called her "Mama" and Mack "Papa." Witness denied that she had told Joe Stoudamire, or any one else, that Rose Epperson was not the daughter of Mack Harmon, but was the daughter of Hillard Roseboro. She denied that she knew Joe Stoudamire in South Carolina.

According to the testimony of Rose Epperson, Miranda is her mother and Mack Harmon was her father. They told her that she was born in South Carolina, and she said that she was too small to remember coming to Arkansas. Mack Harmon always called her daughter and always spoke of her as his daughter to his friends and acquaintances. The witness took the side of her mother in the divorce proceedings and never visited her father after he married Frances Boyd. Mack Harmon lived on the land of Frances Boyd until his death.

Several white people, five or six in number, testified that Mack Harmon moved on a farm near them when he came to Arkansas in 1884 or 1885. He had with him, Miranda Harmon and Rose Epperson, then a little girl five or six years old, whom he represented to be his wife and daughter. He continued to treat and speak of them as his wife and daughter during all the time that he lived in that neighborhood.

Dr. J. M. Goodman testified that he had known Mack and Miranda Harmon and Rose

According to the testimony of David W. Mays, Miranda Harmon told him that Hil lard Roseboro was the father of her daughter Rose. Mack Harmon also told him this.

Other negroes, who were well acquainted with Miranda Harmon testified that she had told them that Hillard Roseboro was the father of Rose Epperson. Miranda Harmon denied this in every instance.

A brother of Joe Stoudamire testified for appellees that Joe Stoudamire did not know Mack Harmon and his family before they came to Arkansas.

Another witness testified that Rose Epperson told him that Hillard Roseboro was her father. Rose Epperson denied this.

The will of Mack Harmon failed to refer to or mention Rose Epperson or John Harmon.

Mack Harmon devised 20 acres of the land owned by him in Grant county to Nora Sites, who is the daughter of Rose Epperson. The balance of the land, he devised to his wife, Frances Harmon, the mother of appellants. After his death in 1911, Frances Harmon, his widow, moved on the land in controversy and lived there until her death in August,

1919.

E. H. Vance, Jr., and Albert W. Jernigan, both of Malvern, and D. E. Waddell, of Sheridan, for appellants.

W. D. Brouse, of Benton, for appellees.

HART, J. (after stating the facts as above). [1] The chancellor found that Rose Epperson was the legitimate daughter of Mack Harmon, deceased, and that she and John Harmon, her older half-brother were the sole heirs at law of said Mack Harmon, deceased.

We are of the opinion that the evidence sustained the finding of the chancellor. According to the testimony of Miranda Harmon, Rose Harmon was born after her marriage to Mack Harmon in South Carolina. The witness did not remember the date of her marriage to Mack Harmon, nor the date on

(232 S.W.)

which Rose was born. She remembered dis- [ been distributed to such child if the father tinctly, however, that Rose was born after had died intestate. their marriage in South Carolina and was four or five years of age when they came to Grant county, Ark. They rented land when they first came to Arkansas, and the white people from whom they rented land and others who knew them said that Mack Harmon always spoke of Rose as his own daughter. The family physician, who knew them for 23 years, said that Mack always spoke of Rose as his own daughter. The evidence of these witnesses tends to corroborate the testimony of Miranda Harmon. The testimony shows more than occasional conduct and declarations by Mack Harmon that he was the father of Rose. He spoke of and treated Rose as his daughter during the whole period of his residence in Arkansas. He devised to her daughter a part of his land after he had become estranged from Rose on account of the divorce from her mother. The whole course of his conduct shows that he recognized Rose as his daughter. The witnesses all said that Mack Harmon came to Arkansas in 1884 or 1885, and that Rose appeared to be five or six years of age at that time.

It follows, then, that because Rose Epperson was not named in her father's will, he died intestate as to her. The record is not very clear as to whether John Harmon was the son of Mack Harmon, but that does not make any difference. Rose Epperson conveyed a half interest in the land to him, and, as we have already seen, the chancellor was right in holding her to be the legitimate child of Mack Harmon. She and John Harmon, then, were the only heirs at law of Mack Harmon, deceased, and inherited his property subject to the widow's right of dower. Mack Harmon died in 1911, and his widow, Frances, then went on the land and resided there until her death in August, 1919. It is claimed that she thus acquired title to the land by adverse possession, and that appellants inherited the land from her. The widow did not acquire any title to the land by adverse possession. Under our statute it was the duty of the heirs to lay off and assign dower to the widow. Crawford & Moses' Digest, § 3544.

[2] Appellees permitted the widow to reside on the land from the date of her husband's

It is true that Joe Stoudamire and others death until her death. It was their duty to testified that Miranda Harmon had admitted assign dower to the widow, and the widow's to them that Hillard Roseboro was the fa- occupancy pending the assignment of dower ther of Rose, but we do not think their testi- Taylor, 111 Ark. 305, 163 S. W. 521. Therewas not an adverse holding. Brinkley v. mony is sufficient to overcome the testimony fore the statute of limitations did not begin favoring the legitimacy of Rose. Joe Stoud- to run in favor of appellants until after the amire testified that he knew Mack and Mir-death of their mother, who was the widow of anda Harmon, and that they married in Mack Harmon, deceased. South Carolina in 1883. He said that Rose was six or seven years old when they married, and that he came to Arkansas in 1888, leaving the Harmons still in South Carolina. His testimony is contradicted by all the witnesses for the appellees. They testified that REYNOLDS v. COWAN BROS. & HARDIN.

Mack Harmon and his family came to Arkansas in 1884 or 1885, and that Rose then only appeared to be five or six years old. George Stoudamire, the brother of Joe, testified that Joe did not know the Harmons in South Carolina. The testimony is too long to be set out in its entirety, but a careful consideration of it leads us, as above stated, to the conclusion that the chancellor was right in finding that Rose Epperson was the daughter of Mack Harmon and was born after his marriage to Miranda.

It follows that the decree must be affirmed.

(No. 100.)

(Supreme Court of Arkansas. July 11, 1921.) 1. Estoppel 52-By conduct defined.

declaration intended or calculated to mislead Estoppel by conduct arises from an act or another, who has relied thereon and so acted or refrained from acting that he will be injured, if the truth of the act or declaration be denied.

2. Estoppel

83(3)—Landlord, inducing third person to deal with tenant by stating he would not assert lien priority, is estopped.

If a landlord induces a third person to make advances or furnish supplies to the tenant by expressly or impliedly stating that he will not assert the priority of his lien, he is estopped to assert such priority.

The will of Mack Harmon is copied in the transcript. The name of Rose Epperson is not contained in it, and no reference whatever is made to her. Under section 10507 of Crawford & Moses' Digest, if a testator omits the name of a child from his will, he will be deemed to have died intestate as to the child omitted, and such child shall be entitled to recover the same portion of her In a suit between landlord and mortgagees father's estate as would have descended or to determine priority of liens, where the chan

3. Appeal and error 1009 (4)-Chancellor's finding not disturbed, where not against the preponderance of evidence.

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

cellor found in favor of the mortgagees, and it [ of this bale of cotton and his part of the cannot be said that the finding is against the price of the seed. preponderance of the evidence, it will not be disturbed.

Appeal from Chancery Court, St. Francis County; A. L. Hutchins, Chancellor.

Suit between J. C. Reynolds and Cowan Bros. & Hardin. Decree for the latter, and the former appeals. Decree affirmed.

This is a contest in the chancery court between a landlord and the mortgagees of the tenants' crop to determine the priority of liens. The mortgagees claim priority over the landlord on the ground that they furnished the tenants under the mortgage with supplies to make the crop upon the representation made by the tenants, concurred in by the landlord, that the rent was one-third of the corn and one-fourth of the cotton, and that on this account the landlord was estopped to assert his lien for a greater amount.

J. C. Reynolds owned a farm in St. Francis county, Ark., which he rented to Jiles Harris, Sr., and other persons for the year 1919, and took their note for $900 for the rent. S. W. Cowan, R. C. Cowan, and J. P. Hardin composed a mercantile firm doing business at Colt, in St. Francis county, Ark., and on the 26th day of February, 1919, the tenants executed to them a chattel mortgage on their crop to secure them for supplies to be furnished the tenants in making their crop. The tenants represented that they had rented the land, and were to pay as rent one-third of the corn and one-fourth of the cotton to be grown by them. According to the testimony of all the members of the firm they furnished the tenants supplies to the amount of $1,400, and would not have furnished them, if the representation had not been made that the land had been rented for one-third of the corn and one-fourth of the cotton.

S. W. Cowan testified that he saw J. C. Reynolds in the early part of the spring, either in March or April, and that Dr. Reynolds told him that he had rented the land to the negroes on the third and fourth, meaning that he was to receive as rent onethird of the corn and one-fourth of the cotton to be grown by the tenants. The other two members of the firm stated that S. W. Cowan had the conversation early in March with Dr. Reynolds and reported to them that he had said that he had rented the land to the negroes for one-third of the corn and onefourth of the cotton. They also testified that early in May, before they had advanced very much to the negroes, Dr. Reynolds came by their store and again told them that he had rented his farm to the negroes, and was to receive as rent one-third of the corn and onefourth of the cotton. In the fall of the year the negroes picked one bale of cotton and then ran off and left the crop. Dr. Reynolds accepted as rent one-fourth of the proceeds

He ex

G. G. Dorris, who ginned all the cotton grown on the farm, testified that Dr. Reynolds told him, late in the spring or early in the fall, that he first rented his farm to the negroes for money rent, and later changed it to one-third of the corn and onefourth of the cotton, in order to get his tenants furnished with supplies to make the crop. Dr. Reynolds was a witness for himself. According to his testimony he rented the land to the negroes for $900, and took their rent note for that amount. hibited the rent note signed by the tenants. He denied that he told any of the mortgagees that he had rented the land for one-third of the corn and one-fourth of the cotton to be raised on the farm. He admitted receiving one-fourth of the proceeds of the first bale of cotton picked in the fall, but stated that he did not demand the whole bale, because he knew that there was enough cotton raised on the farm to pay the rent. He stated that he told the mortgagees in the fall, when the negroes left, that he was going to take charge of the cotton and have it gathered and ginned, and that they made no objections.

Another witness, who was with Dr. Reynolds at the time he stopped in front of the store of the mortgagees in the spring, testified that Dr. Reynolds did not then represent or admit to the mortgagees that he had rented his land for one-third of the corn and one-fourth of the cotton. One of the tenants testified, and denied that he had represented to the mortgagees that the tenants had rented the land for one-third of the corn and one-fourth of the cotton.

The chancellor found the issues in favor of the mortgagees, and under his decree the landlord became entitled to one-fourth of the cotton, and the mortgagees to the remaining three-fourths of it. To reverse that decree Dr. Reynolds has duly prosecuted an appeal to this court.

W. J. Lanier, of Forrest City, for appellant. S. S. Hargraves, of Forrest City, for appellee.

HART, J. (after stating the facts as above). [1] Counsel for the mortgagees base their right to a priority over the landlord's lien on the doctrine of estoppel by conduct. They insist that at the time the mortgage was given by the tenants to the mortgagees the tenants represented that they were to pay as rent one-third of the corn and onefourth of the cotton, and that they furnished the supplies upon the faith of this representation, which was concurred in subsequently by Dr. Reynolds. Estoppel by conduct"arises from an act or declaration of a person, intended or calculated to mislead another, on which that other has relied, and has so acted

(232 S.W.)

or refrained from action, as that injury will be- [ peal, unless they are against the preponderfall him if the truth of the act or declaration ance of the evidence. be denied." McMaster v. Pres., etc., Ins. Co. of N. Am., 55 N. Y. 222, 14 Am. Rep. 239.

[2] In the application of this doctrine, if the landlord induces a third person to make advances or furnish supplies to the tenant by stating to him, expressly or by implication, that he will not assert the priority of his lien, he is estopped to assert such priority. Tiffany on Landlord and Tenant, vol. 2, p. 1943; Underhill on Landlord and Tenant, vol. 2, pp. 1450-1453; Beattie v. Hughes, 82 Ark. 199, 101 S. W. 170.

[3] In the application of this rule to the facts of the present case, it does not make any difference what the original contract between Dr. Reynolds and his tenants was. The question is: Was Dr. Reynolds estopped by his conduct and declarations to the mortgagees from claiming a landlord's lien, except for a third of the corn and one-fourth of the cotton?

It follows that the decree will be affirmed.

(149 Ark. 491)

PAYNE et al. v. ROAD IMP. DIST. NO. I OF.
HOWARD COUNTY. (No. 93.)

(Supreme Court of Arkansas. July 11, 1921.)
1.

Appeal and error 438-Pendency of appeal by one party does not foreclose right of other party to obtain new trial and appeal.

Where both parties are aggrieved by a judgment and one appeals, the pendency of the appeal does not defeat the jurisdiction of the lower court to pass on the other party's proper motion for a new trial during the term, deny it, and give time for filing a bill of exceptions, and hence the first appellant is not entitled to have the other party's appeal dismissed because not based on an apt motion for a new trial.

of

2. Highways 90-By re-establishment improvement district resulting in new assessment Legislature held not to interfere with previous order of county court.

An order of the county court under Crawford & Moses' Dig. § 5399 et seq. creating a road improvement district and declaring in the order that certain described land was not benefited and should not be assessed, which order was not appealed from, did not prevent the Legislature from directing by Road Laws 1919, vol. 1, p. 201, the re-establishment of the diswhich the exempt lands were assessed for bentrict as one under the general statutes under

According to the testimony of the mortgagees the tenants represented to them that they were paying as rent one-third of the corn and one-fourth of the cotton, and upon the faith of this representation, concurred in by Dr. Reynolds, they furnished supplies to the amount of $1,400, which they would not have otherwise done. One of the mortgagees stated that Dr. Reynolds admitted to him early in March or April that such was his contract with his tenants. The other parties testified that they made advances to the ten-efits by a new assessment made after the origants upon the faith of the representation of the tenants to this effect, concurred in by Dr. Reynolds, and that early in May Dr. Reynolds confirmed his previous statement to them. The man who ginned the cotton from the farm also stated that Dr. Reynolds told him that he had first rented his farm for money rent, and then changed it to one-third of the corn and one-fourth of the cotton, in order to enable his tenants to procure supplies with which to make the crop.

It is true Dr. Reynolds testified that he did not make any such representations, and was corroborated by the testimony of another witness. Reynolds also says that the reason he accepted one-fourth of the proceeds of the first bale of cotton was because he knew that there was enough cotton raised on the farm to pay the rent. The fact that he received one-fourth of the first bale, without demanding more, however, was a circumstance tending to show that this was all that he was entitled to out of that bale. In any event, the chancellor found the facts in favor of the mortgagees, and it cannot be said that his finding of fact is against the preponderance of the evidence. It is the settled rule of this court that the findings of fact made by a chancellor will not be disturbed on ap

inal assessments were doubled under Sp. Laws 1920, No. 285, declaring assessments made inadequate, the doubling disapproved by the county court, and double assessment nevertheless made by the clerk and enjoined by a suit from which no appeal was taken.

3. Appeal and error 1011(1)-Finding on conflicting evidence conclusive.

A finding of the trial court based on conflicting evidence will not be disturbed on appeal. 4. Constitutional law 68 (4) Legislative power over assessments for benefits for improvements not disturbed by court.

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The power of the Legislature in determining assessments for benefits in a road improvement district is supreme, and will not be disturbed by the court except for demonstrable mistakes in such determination.

5. Highways 142-Under the zone system of proportioning benefits court may decrease assessments in zone.

Though the court hearing objections to astrict determined that the zone system of prosessments for benefits in road improvement disportioning the benefits was equitable, this did not deprive the court of power to reduce assessments on particular tracts in the zone which were not benefited to the same degree as other property in the zone.

Hart and Wood, JJ., dissenting.

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