106 by any implication create any estate or inter- 2787, R. S. 1909; Tapley v. Ogle, 162 Mo. | We see nothing in the language used which can loc. cit. 197, 62 S. W. 431. And before admeasurement of dower, at least before it becomes consummate, and certainly while such dower is but inchoate, as here, defendant had no estate or interest in this land, and her deed, even if she had tried to grant it, instead of expressly reserving it, would have operated against her not as a grant, but by way of estoppel. Brannock v. Magoon, 216 Mo. loc. cit. 729, 116 S. W. 500. The deed of one entitled to inchoate dower or contingent homestead operates only as the release of a contingent future estate, and not by way of grant. McCrillis v. Thomas, 110 Mo. App. 703, 85 S. W. 673; Brannock v. Magoon, supra. But it is most ably and seriously urged that under the holding in the cases of Utter v. Sidman, 170 Mo. 284, 70 S. W. 702, Garrett v. Wiltse, 252 Mo. 707, 161 S. W. 694, Tygard v. Hartwell, 204 Mo. 200, 102 S. W. 989, Hunter v. Patterson, 142 Mo. 318, 44 S. W. 250, and others which announce the rule that in construing a deed of conveyance the intention of the grantor is to be the sole guide of the courts, and that such intention is to be gathered from the four corners of the instrument, the judgment below was right and the only judgment which could We find no possibly have been rendered. fault with the rule announced in the above cases. They are cases (designating them generally) wherein the grantor, having a certain estate, undertook to convey it, but, by reason of ambiguities and conflicts between the divers formal parts of the instrument executed, his intention as to the nature of the estate designed to pass became doubtful. Here defendant had no life estate (except that of contingent homestead, which was forfeited by abandonment), and this deed conveyed none to her; therefore she has none now. Therefore we are unable to see wherein the above cases affect the view we take. Indeed, we follow these cases and construe the deed here by the four corners, as enjoined, in reaching this view; otherwise we must needs have held that her dower passed. This precise question upon principle while confusing the distinction between an exception and a reservation in a conveyance has been passed on by this court, and it was held that the wife took no interest or estate by the attempted reservation. Logan's Adm'r v. Caldwell, 23 Mo. 372. In the above case the facts and the ruling thereon are shown fully by the below excerpt, to wit: "John Logan conveyed a tract of land to the defendant, Caldwell, in fee, with the following clause, by way of exception or reservation, viz. 'With this exception, that said John Logan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wife.' John Logan's wife survived him, and the question is whether this clause gives the rents and profits accruing after his death to his wife. There between that case and the present one. is nothing in the relationship between husband and wife which can make a difference." Logan's Adm'r v. Caldwell, 23 Mo. loc. cit. 373. [3-5] The identical result we think is reached so far as the defendant is concerned, regardless of whether we adhere to the extremely technical distinction between a “reservation" and an "exception" in a deed. It will be seen that the deed before us is ambiguous by reason of the words used. In one clause a life estate is "reserved," thereby creating an exception. In another clause the rents and profits are in effect excepted, thereby creating a reservation. Snoddy v. Bolen, 122 Mo. 479, 25 S. W. 935; Dozier v. Toalson, 180 Mo. 546, 79 S. W. 420, 103 Am. St. Rep. 586. If a reservation was created by the language used, such reservation could not inure to defendant, but must be held to have died with the grantor. Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73; Murphy v. Lee, 144 Mass. 371, 11 N. E. 550; Bridger v. Pierson, 45 N. Y. 601; Stockwell v. Couillard, 129 Mass. 231; Strasson v. Montgomery, 32 Wis. 52; Hill v. Lord, 48 Me. 83; Redding v. Vogt, 140 N. C. 571, 53 S. E. 337, 6 Ann. Cas. 312; Bartlett v. Barrows, 22 R. I. 647, 49 Atl. 31; Haverhill Bank v. Griffin, 184 Mass. 419, 68 N. E. 839; Stone v. Stone, 141 Iowa, 438, 119 N. W. 712, 20 L. R. A. (N. S.) 221, 18 Ann. Cas. 797. When the books and the cases say that a reservation in a grant in order to be valid must be for the benefit of the grantor, or of some one of the grantors, and that a reservation cannot be made for the benefit of a stranger to the deed, it is meant and the language used connotes that the reservation must be for the benefit of that grantor, who, having an interest in the thing granted, may logically reserve from the operation of the grant a part of the estate or thing granted, or some right growing out of or appurtenant thereto. Cf. Stone v. Stone, 141 Iowa, 438, 119 N. W. 712, 20 L. R. A. (N. S.) 221, 18 Ann. Cas. 797. [6, 7] If an exception was carved out of the estate, and the estate excepted did not pass to plaintiff, then such exception was a part of Joseph R. Lemon's estate, and it would pass to his heirs. Logan's Adm'r v. Caldwell, supra: Martin v. Cook, 102 Mich. 267, 60 N. W. 679; Burchard v. Walther, 58 Neb. 539, 78 N. W. 1061; Wood v. Boyd, 145 Mass. 176, 13 N. E. 476; Bridger v. Pierson, supra; Smith v. Furbish, 68 N. H. 123, 44 Atl. 398, 47 L. R. A. 226; Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171. So in neither view is defendant in any wise aided. grantor first excepts a life estate for himself; Here the then he is careful to explain that only "the is to say, an estate for the life of the defendestate in remainder is intended to be con- ant. This interest passed to his heirs if he veyed to second party." The grantor then, died intestate, or to his specific or residuary proceeds to reserve the rents and profits, both devisees if he died testate. The plaintiff for his own life and for the life of the de- Alphonso V. Lemon could not as grantee in fendant. Conceding that it is a practical im- the deed under discussion sue for either rents, possibility to ascertain and say with any de- profits, or possession during the life of the gree of certainty whether the estate or in- defendant, pending whose life the grantor terest which did not pass to plaintiff was Joseph R. Lemon had reserved an estate pur technically speaking an exception or a reser- autre vie. There is no proof here as to vation, we are yet by the authorities per- whether Joseph R. Lemon died testate or inmitted to regard it as an exception. Martin testate, so we cannot know whether plaintiff v. Cook, supra; Burchard v. Walther, supra; Alphonso V. Lemon took as heir any part of Richardson v. Palmer, 38 N. H. 212: West this residual interest or not. We think it Point Iron Co. v. Reymert, 45 N. Y. 703; clear that pending the life of the defendant Bridger v. Pierson, 45 N. Y. 601; Jones v. and the vesting of the remainder in fee in De Lassus, 84 Mo. 541; Logan's Adm'r v. plaintiff (or his heirs, since he is dead), neither Caldwell, 23 Mo. 372. Indeed, the weight of the plaintiff nor the defendant is entitled by the language used in the deed of itself in- virtue of this grant, to these rents and profits, clines to induce this view, as the language nor to the possession of this land, but that we quote above and as a bare reference to the the right to the same is in the heirs or the deed itself makes apparent. Regarding the devisees of Joseph R. Lemon, subject to the estate reserved as an exception, it passed dower of defendant in the land in dispute. neither to plaintiff nor to defendant by the This it has been seen is the identical view deed in dispute, but remained, as we have taken by the entire court in the case of Lostated, a part of Joseph R. Lemon's estate, gan's Adm'r v. Caldwell, supra, with the unand passed at his death either to his heirs important distinction that two of the three or devisees, according as he may have died judges took the view that the residual intestate or intestate. Logan's Adm'r v. Cald- terest was so far personalty as that it passed well, supra: Martin v. Cook, 102 Mich. 267, to the personal representative who could sue 60 N. W. 679; Burchard v. Walther, 58 Neb. for it; while Leonard, J., was of the opinion 539, 78 N. W. 1061. that it was an interest in real estate, and as such passed to the heirs, and that the latter alone were entitled to sue for it. It is not absolutely necessary herein to rule which view is the correct one. A solution of this simple question seemingly involves an elementary principle, but nevertheless, in passing and solely by way of dictum, we may observe that the view held by Leonard, J., seems to be the better one. [8] III. Coming to a consideration of the estate taken by plaintiff under this deed, how stands the case? Since, by reason of the effect of the clause of reservation, and a lack of a conveyance to her, this estate or interest pur autre vie could not pass to the defendant, it is equally as clear from what is said above that it did not pass to the plaintiff. To hold that plaintiff took an estate or an interest so clearly excepted by the one grantor, who, prior to executing the grant, held the fee in the land, would be to construe the plain language used in a sense wholly contrary to its obvious intent. It may be said that likewise by the plain language used there is shown a manifest intent to reserve an estate in the defendant for her life. Undoubtedly this is true, but the difficulty with this position is that under the law of this state lands and interests in them cannot be granted merely by intent, absent a grant in writing. Tapley r. Ogle, supra; section 2787, R. S. 1909. It follows, we think, that when the grantor Joseph R. Lemon died there was left residual in his estate an estate pur autre vie; that It results that (a) the rents, profits, and possession of the land sued for inure to the heirs or to the devisees of Joseph R. Lemon, deceased, during the life of the defendant; (b) that such right is, however, subject to the defendant's dower rights in said land; and (c) that the plaintiff Alphonso V. Lemon, or (since he is dead) his heirs, are entitled to the remainder in fee in this land after the death of the defendant. To the extent that the judgment nisi differed from the views above expressed, it was erroneous, and the case should be reversed and remanded for such further proceedings as are not inconsistent with what we have said herein. Let this be done. All concur. LANIER v. SHONYO et al. (No. 257.) (Supreme Court of Arkansas. April 1, 1918.) 1. JUDGMENT 504(2) CONCLUSIVENESSCOLLATERAL ATTACK. ed interest of Richardson in the land was directed to be sold. The sheriff sold the inter est of Richardson in the lands pursuant to the order of the court, and said interest was purchased by four of the heirs of George W. Richardson, who still owned their several interests inherited from their father. The sale The recitals of a judgment being conclusive in the absence of fraud, and the attorneys being authorized by Kirby's Dig. § 6212, to consent to trial before the court, record showing judg-was duly confirmed by the court. ment for plaintiff on pleadings, testimony, exhibits and agreements is not subject to collat- stituted by the two children of John Richeral attack, The present consolidated actions were in ardson, who are still minors, and sue by 2. ABATEMENT AND REVIVAL ~~72(7)— their guardian, to recover possession of the RIGHTS OF HEIRS. Under Kirby's Dig. § 6310, as to revival of interest of their father in the lands, which actions, it is not necessary to have a revivor had in the meantime passed to the several in the name of heirs before there can be an defendants in the cause under conveyances order for sale of attached lands in an action from the other heirs of George W. Richardfor recovery of a money judgment against the ancestor in which title was not involved, where son. The cause was transferred to the chanthere was a revivor in the name of a special cery court, and proceeded there to final hearadministrator, as permitted by sections 6298- ing. The chancellor held that the sale of the 6300. land under the judgment in the case of Griffith against John Richardson was void, and that plaintiffs were entitled to recover the lands, but that defendants were entitled to a lien on the lands by way of subrogation to the rights of the original plaintiff Griffith to the extent of the judgment. Both sides have appealed to this court. 3. EXECUTORS AND ADMINISTRATORS 22(1) -SPECIAL ADMINISTRATORS. The statute authorizing the appointment of a special administrator was part of the act of January 10, 1851 (Laws 1851, p. 102), and was not repealed by the code provisions on that subject. Appeal from Mississippi Chancery Court; Archer Wheatley, Chancellor. [1] It is contended, in the first place, that the judgment in the case of Griffith against Richardson was void because it was a consent judgment, and that the special adminis Consolidated actions by N. V. Lanier as guardian of the heirs of John Richardson against O. Shonyo and others. From the decree rendered, both parties appeal. Revers-trator had no power to give such consent. ed, with directions to dismiss the complaints. R. A. Nelson, of Blytheville, for appellant. Little, Lasley & Adams, of Blytheville, for appellees. The The record of the judgment recites that the cause was heard "on the pleadings, testimony of witnesses, exhibits, and agreements of parties and counsel, and the finding of the court is for the plaintiff that he have judgment against the defendant in the sum of $1,100 and his costs," etc. There was oral testimony introduced in this cause before the chancellor tending to show that the judgment in the Griffith case was rendered upon consent of counsel in the case, but this is a collateral attack upon the judgment and it cannot be overturned in that manner. recitals of the judgment are conclusive in the absence of proof of fraud. The record does not show that there was a trial before a jury, but the attorneys representing the respective parties are authorized under the statute to waive a trial by jury and consent to a trial before the court. Kirby's Digest, § 6212. At any rate the trial of the cause before the court, instead of before a jury, was at most an irregularity which cannot be raised in a collateral attack on the judgment. McClendon v. Wood, 125 Ark. 155, 188 S. W. 6. MCCULLOCH, C. J. John Richardson was the owner of an undivided one-sixth interest in certain tracts of land in Mississippi county by inheritance from his father, George W. Richardson, who died in the year 1906, leaving a widow and six children. The lands were not partitioned between the heirs of George W. Richardson during the lifetime of John Richardson, but were held by the heirs as tenants in common. Claud Griffith instituted an action in the circuit court of Mississippi county against John Richardson to recover damages laid in the sum of $8,000, for personal injuries alleged to have been inflicted by Richardson upon the body of Griffith, and at the commencement of the action an order of general attachment was issued and levied on Richardson's interest in the aforesaid lands. There was personal service of process in that action upon Richardson, who died during the pendency of the action, leaving two infant children, who are plain- [2, 3] It is next insisted that the judgtiffs in the present action. The action of ment, so far as it sustained the attachment Griffith against John Richardson was revived and ordered the sale of the lands, was void in the name of a special administrator of because there has been no revivor in the the estate of John Richardson, and proceed- name of the heirs. It is insisted that it was ed to trial, and judgment was rendered in necessary to revive in the names of the heirs favor of the plaintiff for recovery of dam- before there could be an order of sale of the ages in the sum of $1,100. The attachment lands, the title to which descended to them in the cause was sustained, and the undivid-'from their father, the defendant in that ac For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion. "After the death of Hickman, his land descended to his heirs, and the title to the tract this attachment was levied on vested in them, notwithstanding the lien created by the levy of the attachment. No judgment could be rendered condemning the land, until the heirs were before the court. Notwithstanding the attachhave a right to require that the judgment of ment had been levied on the land, they would the plaintiff should be satisfied out of the personal estate in the hands of the administrator, if there were any; and, having this right, they must be brought regularly before the court, that they may see that the personal assets have been regularly and fully administered." Counsel are not correct in their as- | kind that there must be a revivor in the sumption that the statutes of this state re- name of the heirs before lands can be sold quire a revivor in the name of heirs before under attachment is the case of Green v. there can be an order of sale of attached Shaver, 3 Humph. (Tenn.) 139, where Judge lands in an action for recovery of a money Nathan Green, speaking for the Tennessee judgment. The action upon which the at- court, said: tachment was issued was for the recovery of money, and the attachment was only an ancillary proceeding; the title to the lands not being involved. The revivor related only to the main action which survived against the personal representative of the deceased defendant. Kirby's Digest, § 6310. The statute authorizes a revivor in the name of a special administrator where there is no general administrator of the estate of the deceased defendant. Kirby's Digest, §§ 62986300. The statute authorizing the appointment of a special administrator was part of the act of January 10, 1851, and was not repealed by the Code provisions on that subject. Mangum v. Cooper, 28 Ark. 253; Grace v. Neel, 41 Ark. 165. The statute was upheld as a valid exercise of legislative power in the case of Wade v. Bridges, 24 Ark. 569, and was held applicable in a case identical with the present case, where lands were attached under an order of general attachment issued in a personal action. Similar procedure was approved by this court in the more recent case of Weibel v. Beakley, 90 Ark. 454, 119 S. W. 657. The only decision of any court brought to our attention tending to sustain the contention that it is essential in a case of this That decision was rendered in 1842, and was based upon a statute of Tennessee enacted in 1794, which expressly provided that in all suits at law before lands of a decedent could be ordered sold under process there must be a revivor in the name of the heirs. The decision based upon the statute of that state is not applicable here, where we have no such statute. We are of the opinion that the chancellor erred in holding that the sale under attachment was void. It is therefore unnecessary to discuss the rights of defendants to subrogation. The decree is reversed, with directions to dismiss the complaint in each of the consolidated actions. amount of his purchases are satisfactory to W. T. RAWLEIGH MEDICAL CO. v. ELLIS said company. Provided, however, that said E. P. Ellis or his guarantors may be released from this contract at any time by paying in cash the balance due said company on account. "Accepted March the 11th, 1911. "The W. T. Rawleigh Medical Company, "By W. T. Rawleigh, President. et al. (No. 155.) (Supreme Court of Arkansas. Feb. 11, 1918.) 1. EVIDENCE 448-PAROL EVIDENCE-AM BIGUITY IN CONTRACT. Testimony cannot import into a contract an ambiguity where none otherwise exists. 2. SALES 7-SALE OR AGENCY. An instrument, providing for the purchase of goods for resale, stating the terms, time of payment, etc., and nowhere referring to the parties as principal and agent, held to be a contract of sale of goods, and not a contract of agency. Appeal from Circuit Court, Ouachita County; Chas. W. Smith, Judge. Action by the W. T. Rawleigh Medical Company against E. P. Ellis and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered. J. W. Warren, of Camden, for appellant. Thos. W. Hardy, of Camden, for appellees. SMITH, J. The parties to this litigation entered into the following contract: "Whereas, E. P. Ellis, of Camden, Ark., desires to purchase of W. T. Rawleigh Medical Company, of Freeport, Ill., on credit and at wholesale prices to sell again to consumers, medicines, extracts, spices, toilet articles, perfumes, polishes, stock dip and disinfectant, stock preparations and poultry supplies and other goods manufactured and put up by it, paying his account for such goods in installments as hereinafter provided; therefore, he hereby agrees to sell no other goods than those sold him by said company, to sell all such goods at regular retail prices to be indicated by it, and to have no other business or employment. He further agrees to pay the company for all goods purchased under this contract the current wholesale prices of such goods by remitting in cash each week to said company an amount equal to at least one-half the receipts from his business until his account is balanced, and for that purpose as evidence of good faith he shall submit to said company weekly reports of his business; provided, however, if he pays his account in full on or before the 10th of each month, he is to be allowed a discount of 3 per cent. from current wholesale prices. When the sale or purchase of goods under this contract shall be permanently discontinued for any reason or upon any notice given by either party, he further agrees to settle in cash, within a reasonable time, the balance due said company on account. "Unless prevented by strikes, fires, accidents or causes beyond its control, said company agrees to fill and deliver on board cars at place of shipment, his reasonable orders, provided his account is in satisfactory condition, and to charge all goods shipped him under this contract to his account at current wholesale prices; also, to notify him promptly of any change in wholesale or retail prices. "Said company agrees to furnish him free of charge on board cars at place of shipment, a reasonable amount of first-class advertising matter, report and order blanks, and printed return envelopes for his own use in conducting his business; also, to give him free of charge, aft er he has begun work, suggestions and advice through letters, bulletins, and booklets as to the best method of selling its products to con sumers. "This contract is subject to acceptance at the home office of the company, and it is to continue in force only so long as his account and the "E. P. Ellis. "In consideration of the W. T. Rawleigh Medical Company extending credit to the abovenamed person, we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time shall not release us from liability under this guarantee. "E. P. Purifoy. "P. B. Greening. "W. T. Ellis. "Metza D. Hale." Pursuant to the terms of this contract, merchandise of the kind there named was furnished to E. P. Ellis, and, after all proper credits had been given and allowed, there finally remained due the sum of $269.96, for which sum a note was executed to the order of the medical company, and this suit was brought to enforce the payment of that note; but the right to maintain it is denied upon the ground that the medical company; the plaintiff below and appellant here, is a foreign corporation and has not complied with the laws of this state authorizing it to do business in this state. The medical company admits that it is a foreign corporation, and that it has not complied with the laws of this state authorizing it to do business here; but it denies that it has been doing business in this state. It is asserted, on the one hand, that the contract between the parties, out of which this indebtedness grew, was one of principal and agent; while, on the other, it is asserted that the contract between them was one for the sale of merchandise. [1] We have had several of these cases recently presenting this identical question. The first of these cases was that of Clark v. Watkins Medical Co., 115 Ark. 166, 171 S. W. 136; and another case in which that medical company was a party was that of Watkins Medical Co. v. Williams, 124 Ark. 539, 187 S. W. 653. In those cases we set out the contracts under which the parties had operated, and we said there that there was such ambiguity in the contracts as to make it a question of fact for the jury whether or not the relationship between the parties was that of principal and agent, or that of buyer and seller. We announced there the duty of the court to construe the terms of an unambiguous contract, and this doctrine was reiterated in the later case of Rawleigh Medical Co. v. Holcomb, 126 Ark. 597, 191 S. W. 215. In this last-cited case we set out the contract between the parties to that litigation and held that there was no such ambiguity in its terms as warranted a submission to the jury the question of its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |