W. 41; Holder v. State, 58 Ark. 473, 25 S. | formed him that he bought the whisky from W. 279; Smith v. State, 74 Ark. 397, 85 S. Shrieves. W. 1123; Younger v. State, 100 Ark. 321, 140 [2] It is alleged that, in view of the sharp S. W. 139; Turner v. State, 128 Ark. 565, 195 conflict in the evidence and the weakness of S. W. 5. It is not contended that the evi- the state's evidence, the court erred in perdence is insufficient to support the verdict, mitting the prosecuting attorney to overso we deem it unnecessary to set the evi- state the evidence in his closing argument dence out in extenso. Only one witness tes- by saying: "Gentlemen of the jury, the detified in behalf of the state, and two, in- fendant has pleaded guilty and has been concluding himself, in behalf of the appellant. | victed already in this court for selling liqCharley Payne testified for the state, in uor a half a dozen times." While attorsubstance, that on Saturday, between the neys should have reasonable latitude in the 13th and 15th of October, 1916, he bought course of argument, it is not proper for them one quart of Murray Hill whisky from ap- to overstate or exaggerate the testimony or pellant in appellant's place of business about to refer to matters not in evidence. The one and a half miles south of Atkins, Ark., trial court should take prompt and vigorous and paid him $1.75 for it; that on Friday action to exclude all prejudicial statements. prior thereto he bought an intoxicating mix- As the jury were not admonished to disreture of Jamaica ginger and cider from him; gard the statement complained of, we would that on the following Monday or Tuesday he not hesitate to reverse the case if we thought bought a quart of whisky from Jerry the statement made by the prosecuting atShrieves in the back end of appellant's store; torney was, in fact, prejudicial. We cannot that at the time of the purchase he observed see, however, how any prejudice could have a large quantity of beer and whisky bottles resulted to appellant on account of the statein the back room of the appellant's store; that ment. Appellant admitted that he had pleadLemley was out there with him several ed guilty in that court two or three times times and that he told Lemley on one occa- by way of compromise for selling "near sion that he bought whisky from Shrieves. beer." This amounted to an admission that Appellant testified, in substance, that he he had been convicted two or three times on did not remember the dates Payne came to pleas of guilty for a violation of the liquor his place of business, but he was there two, law. This admission was drawn out of him three, or four times in the interest of the on cross-examination and went to his credilighting business; that Lemley was in bility as a witness. If his credibility as Payne's company when he asked appellant a witness was affected by this admission, it if he knew where he could buy some whisky; was because he had violated the law, and that he put Payne next to Shrieves and told not because he had violated it any particular Shrieves Payne was his friend; that soon number of times. We think the violation of thereafter Shrieves left and returned with a the liquor laws three times would as effecbundle under his arm and passed through the tually discredit a witness as six violations store into the shed room; that Payne followed thereof. We do not think it can be said him back and one or the other called Lem- under this evidence that there would have ley; that Payne and Lemley left in about 15 been an acquittal had the prosecuting attorminutes; that he never sold Payne any whis-ney omitted the statement complained of ky and that he was not interested in the sale of any whisky to him; that he never sold whisky in 1916, or at any other time to anybody; that he pleaded guilty in the way of a compromise two or three times for selling "near beer"; that if any bottles were in his store they were bottles he had to put coal oil and vinegar in. from his argument, so cannot say appellant was prejudiced by the statement. No error appearing in the record, the judgment is affirmed. HABACH v. JOHNSON et al. (No. 183.) Feb. 25, 1918.) (Supreme Court of Arkansas. 1. USURY 117-SUBTERFUGE SUFFICIENCY OF EVIDENCE. Evidence held to warrant finding that agree ment to pay commission to one who had nothing to do with negotiating loan was a subterfuge, adopted for purpose of giving color to trans action which would otherwise have been usurious on its face. J. L. Lemley testified, in substance, that he saw appellant sell Payne Jamaica ginger and cider mixed, on Friday, but was not there with him on the following Saturday: that he was there on the following Monday and saw Jerry Shrieves leave the store and come back in about three-quarters of an hour with a bundle under his arm; that Jerry Shrieves passed through the store to If the contract was usurious in its incepthe shed room and Payne then called him; tion, no subsequent offer to remit the usury that when he got back to the room Payne had can give it validity. a bottle of whisky and that they all drank 3. USURY 12-FORM OF CONTRACT-INTENT. The form of a contract is immaterial if the out of it; that on the way back to town intent exists at the time the contract is made Payne asked him Shrieves' name and in- to take and receive usurious interest. 2. USURY 88 SUBSEQUENT OFFER TO RE TURN. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. USUBY S8 VALIDATING ILLEGAL CON- ter, which was signed by Ellis in his official TRACT CONSIDERATION. Although debtor testified that it was his purpose to pay the debt, less usury, such purpose cannot be given effect by rendering a judgment for the sum due, less usury; debtor's statement being purely voluntary and without consideration. Appeal from Polk Chancery Court; Jas. D. Shaver, Chancellor. Suit by Henrietta Habach against George W. Johnson and others. From decree rendered, plaintiff appeals. Affirmed. capacity, in which it was stated that: Johnson testified that he did not know, until after he had paid six of these interest notes, that the contract was usurious. Johnson insists that this $120 as commission was reserved by Ellis himself, and that, while he does not show that he knows this to be a fact, no one testified to the contrary. But, at any rate, the court might well have found that J. I. Alley, of Mena, for appellant. H. H. the agreement to pay the commission to Ray Thomas, of Mena, for appellees. Worthington, who had nothing to do with negotiating the loan, was a subterfuge adopted for the purpose of giving color to a transaction which would otherwise have been usurious on its face. The court did find that the loan was usurious, and the unpaid notes and the mortgage were canceled. It is conceded that the execution of the loan contract according to its terms will result in the exaction of was warranted in finding that, if this commission was not paid to the lender himself, it was paid to his agent, and, if so, there can be no question of the lender's knowledge of its retention, for he himself reserved the com769, 16 S. W. 477, 10 L. R. A. 459: May v. Flint, 54 Ark. 573, 16 S. W. 575: Baird v. Mill mission. Banks v. Flint, 54 Ark. 40, 14 S. W. SMITH, J. George W. Johnson and his wife executed their joint note on March 20, 1912, to Edwin S. Ellis for the sum of $800, bearing interest at the rate of 6 per cent. per annum, payable semiannually, and due five years from date. They also executed ten notes, for $24 each, covering the interest on this loan. The notes were secured by a mort-usurious interest; and we think the court gage on a tract of land owned by the John sons, and were assigned, before maturity, for value, to Mrs. Henrietta Habach. Six of these interest notes were paid, when, upon default being made in the payment of the next note to fall due, Mrs. Habach brought suit to foreclose the mortgage which secured its payment. After the complaint had been filed for this purpose, an amendment was filed, in which it was alleged that, by calculation, it had been ascertained that the loan to the Johnsons was usurious; and there was a disclaimer of any intention of taking usury, and a denial of the existence of any such intent at the time the notes were executed; and there was a prayer that plaintiff be allowed to remit any claim for interest beyond that allowed by law. Ellis was the president of the Jefferson Trust Company, of McAlester, Okl., a corporation engaged in lending money and in negotiating sales of notes for money loaned. wood, 51 Ark. 548, 11 S. W. S81; Thompson v. Ingram, 51 Ark. 546, 11 S. W. 881. It is insisted that no intention to take usu ry is shown. Neither the lender nor any one representing him testified that there had been any inadvertence or mistake of fact or error in calculation which tended to show that there was no such purpose. Garvin v. Linton. 62 Ark. 380, 35 S. W. 430, 37 S. W. 569. [2] A suit was brought to enforce a contract which, if enforced according to its terms, resulted in the exaction of usury; and, if the contract was usurious in its inception, no subsequent offer to remit the usury can give it validity. It is true, as stated, that an amendment to the complaint was filed in which it was alleged that it was through a mistake of fact that the parties had contracted for usurious interest, and that no such intention existed when the loan was made. No testimony was offered in support of these allegations, however. Upon the contrary, it was shown that the lender was largely en [1] Johnson applied for this loan to W. A. Worthington, who according to Johnson's testimony, was the agent of the trust company, working for a salary. He testified that Worthington stated that it was the policy of the trust company to loan money for five years at 9 per cent. interest per annum, and Johnson applied for a loan of $800 on those terms. There was offered in evidence a writ-gaged in the business of negotiating loans of ing signed by Johnson and his wife, in which they agreed to pay Ray A. Worthington the sum of $120 for negotiating this loan. Johnson disclaimed any recollection of having signed this agreement, and testified that he did not know Ray Worthington, and that he had had no dealings with him, but that he dealt with W. A. Worthington as the agent of the trust company. The loan was approved, and the trust company wrote Johnson a let money, one of which loans we held usurious in the case of Ellis v. Terrell, 109 Ark. 69, 158 S. W. 957, Ann. Cas. 1915C, 1153. [3] The form of the contract is not material, but the transaction will be held usurious, if, from all the facts and circumstances in the case, it appears that an intent existed at the time the contract was made to take and receive, by way of interest, a sum of money in excess of that allowed by law. El liott on Contracts, vol. 2, p. 269; Fielder v. 1 session by her, and further alleged by way Darrin, 50 N. Y. 437. [4] Johnson testified that it was his purpose to pay this debt, less the usury charged, and counsel for appellant asks that this declared purpose be given effect by rendering judgment for the sum due, less the usury. We are unable to do so, however, for the reason that the statement made was purely voluntary, and without consideration to support it as a valid and binding agreement. Decree affirmed. IVERSON v. ROWLAND. (No. 177.) (Supreme Court of Arkansas. Feb. 25, 1918.) 1. ADVERSE POSSESSION 114(1) POSSESSION UNDER CONTRACT OF SALE-SUFFICIENCY OF EVIDENCE. of defense that on the 21st day of February, 1893, and after the intermarriage of Susan Tellfare and himself, Susan Rowland and the defendant executed a deed of trust to Andrew Houseman to secure the payment of $100, with interest at the rate of 10 per cent. from date until paid; that on the 23d day of February, 1895, the deed of trust was foreclosed and the land sold by a commissioner in chancery to Andrew Houseman; that in the fall of 1895 Andrew Houseman entered into a contract by which he agreed to sell the defendant (appellee) the land in suit; that defendant entered into possession under his contract of purchase; and that defendant had been in the lawful possession ever since. The undisputed evidence shows that Susan Rowland and Joshua Rowland, her husband, the appellee, executed a deed of trust to secure the payment of the sum of $100. This deed of trust was foreclosed by a decree of the Jefferson county chancery court. 2. NEW TRIAL 108(1), 150(4)-MOTION_FOR Houseman bought the land and moved into ON GROUND OF NEWLY DISCOVERED EVI- the Rowland residence situated on the land. DENCE-DENIAL. In an action to recover land, defendant claiming title by possession under contract of sale to him, evidence held sufficient to sustain verdict for defendant. Plaintiff's motion for new trial on the The Rowlands also continued to occupy a ground of newly discovered testimony was prop- part of the house. Soon after moving into erly refused, where the matters set forth in the the Rowland house Houseman became ill motion were not calculated to change the ver dict, and were therefore not material to the and died. At the time of his death the Rowissue, and where the motion did not set forth lands were still living in the house with any facts showing that plaintiff had exercised Houseman. The Rowlands continued to occureasonable diligence to discover the evidence in time to have produced it at trial, but merely alleged that after reasonable diligence plaintiff could not and did not discover and produce it at trial. Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge. Action by Berry W. Iverson against Joshua Rowland. From a judgment for defendant, plaintiff appeals. Affirmed. Arthur D. Chavis, of Pine Bluff, for appellant. J. F. Jones and Taylor, Jones & Taylor, all of Pine Bluff, for appellee. WOOD, J. The appellant brought this action against the appellee to recover a certain parcel of land situated in Jefferson county, Ark. He alleged that Martha C. Allis on the 26th day of December, 1877, conveyed the land to James Tellfare; that after the death of Tellfare the probate court vested the title to the lot in controversy in Susan Tellfare, his widow; that Susan Tellfare afterwards intermarried with the appellee; that on the 25th of June, 1901, the county clerk executed a tax deed to James Jones and Jake Mosby, who in turn on the 20th day of December, 1901, conveyed to Susan Tellfare Rowland; that on the 4th day of May, 1914, Susan Rowland executed her last will, in which she devised said land to the plaintiff; that Susan prior to her death had been in the open, peaceable, and actual possession of said land for more than 20 years, claiming title thereto. The defendant denied the execution of any will by Susan Rowland and any adverse pos py the house until the death of Susan Rowland, June 12, 1914. Joshua Rowland, the appellee, continued in possession of the house and was in possession of the same at the time that this action was instituted. On the 25th day of June, 1901, a part of the land in controversy was sold at a tax sale for nonpayment of taxes for that year, and same was bought in by James Jones and Jake Mosby, for which they duly received a clerk's tax deed. On the 20th day of December, 1901, said James Jones and Jake Mosby conveyed said lands back to Susan Rowland, who was still in possession of the land. On the 4th day of May, 1914, Susan Rowland executed her last will, in which she devised the land in controversy to appellant, Berry W. Iverson, appellant's brother, Griffin Iverson, and to Joshua Rowland, the appellee. Devising to the latter the land during his natural life, and at his death to revert to appellant and his brother, Griffin Iverson. Appellant and his brother were nephews of Susan Rowland, whom she had reared, having no children of her own. On December 1, 1904, Susan Rowland conveyed by warranty deed to Columbus Rowland, a son of appellee, a lot located in the northwest corner of said land, on which Columbus Rowland lived at the time this action was instituted. After the death of Susan Rowland, the appellee, Joshua Rowland, refused to surrender the possession of said one-third of land to Berry W. Iverson, and upon such refusal appellant instituted this action. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The testimony on behalf of the appellee tended to prove that after Houseman purchased the land at foreclosure sale he sent a deputy sheriff to put appellee off of the premises. Appellee testifies as follows: den thus placed upon him the jury should return a verdict in favor of the appellant for the possession of the land and such damage as they found that he had sustained. Instructions were also given at the instance "I and Mr. Houseman got together and Mr. of the appellee which announce elementary Houseman told me, 'Now, Rowland, I don't principles of law, and it is not necessary to want the property and I do not expect to live in this country. I am going back to Ohio and set them forth. The instructions given at I believe that you are honest and I will sell the instance of the appellant were certainly this property to you-I won't sell it to your as favorable to him as he had the right to wife. Of course she's old and I could not deask. pend upon her to pay and you have to take care of her and I will sell it to you because I be[1, 2] Giving the testimony its strongest lieve that you will pay the balance that you probative value in favor of the appellee, owe me.' He was sick then and he said, "If which we must do in order to test its suffiI get better I am going back to the state of Ohio-somewhere about Dayton, Ohio, so I told ciency to sustain the verdict, there can be no him, 'All right.' I made a contract and, of doubt that it was legally sufficient. There course, he kept the contract and I was to pay was a sharp conflict in the evidence, but the it off and whenever I paid a certain amount, jury has settled the issues of fact in favor why he receipted me. When a note was paid off I would carry that home and put them down of the appellee upon instructions which we --that has been 23 years ago and the rats are convinced contain no reversible error. got to my papers and then fooling around I We have examined the assignment of error didn't think there would anything come up in refusing appellant's motion for a new trial Robert Johnson, who was deputy sheriff of on the ground of newly discovered testimoJefferson county in 1894, 1895, and 1896, tes-ny. There is no merit in this motion, for the tified that while he was deputy sheriff he had some "dispossession papers to serve on old man Rowland and his wife." He did not put them out. There was a limitation and the sue, and, besides, the motion does not set time was not up for them to get out. Before forth any facts showing that the appellant the time expired Mr. Houseman instructed had exercised reasonable diligence to discovthe witness not to put Rowland out, saying er the evidence in time to have produced the to witness, "Me and Rowland have arranged for him to pay it out." He said to witness, "Old man Rowland just made a payment on the purchase of it," and for witness not to about it." move him. reason that the matters set forth therein were not calculated to change the verdict and were therefore not material to the is same at the trial. Appellant merely alleged and did not discover and produce it at the "that after reasonable diligence he could not trial." Rynes v. State, 99 Ark. 122, 125, 137 S. W. 800; McDonald v. Daniels, 103 Ark. 589, 148 S. W. 271. The judgment is correct, and is therefore affirmed. The above sufficiently sets forth the issues, presented by the pleadings and the testimony, that were sent to the jury with instructions in which the court told the jury that the burden was upon the appellee to show by the preponderance of the testimony that he had entered into a contract for the purchase of the land from Houseman, and that he had been in possession and that he and his wife lived upon it and claimed the property as the property of Joshua Rowland and not as the property of his wife; that the burden was upon the appellee to prove the terms of the contract as alleged by him; that the deeds from Jones and Mosby to Susan Rowland might be construed by the jury not as muniments of title but as tending to show that he was in possession and claiming title to the land at the time the deeds were executed; that appellee admitted that Susan Rowland was in possession of the land and was the owner thereof in 1895, and that it devolved upon him by preponderance of the testimony On issue of delivery of deed, the facts and to show that the possession of the land circumstances in the case tending to establish was changed from Susan Rowland to Joshua delivery, including the fact of recordation by the Rowland, and that he had held possession of he remained in possession of, and controlled the father, held not overthrown by the showing that the land since the change claiming said land land until his son reached 19 years of age, and for at least seven years as his own and not sold the timber thereon, for which he afteras the property of his wife, Susan Rowland; arother son finally found its way back to the wards accounted, and that a tract conveyed to that unless the appellee discharged the bur-mother. LEE HARDWARE CO., Limited, v. JOHN- and Phrases, First and Second Series, Delivery.] [Ed. Note. For other definitions, see Words 2. DEEDS 194(5)-DELIVERY-PRESUMPTION FROM RECORDATION. A father's act in recording a deed to his son raised a prima facie presumption of delivery which could not be overthrown by other than clear and convincing evidence. 3. DEEDS OF EVIDENCE. 208(4)-DELIVERY-SUFFICIENCY For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. FRAUDULENT CONVEYANCES 208, 273INTENT-LAPSE OF TIME. To avoid a voluntary conveyance in favor of subsequent creditors, an intention to defraud either existing or subsequent creditors must be proved by the facts and circumstances surrounding the transaction, and the time that elapsed between the date of the conveyance and creation of the debt may be considered in connection with the other circumstances in proof to ascertain whether a voluntary conveyance injured or defrauded a subsequent creditor or creditors. 5. FRAUDULENT CONVEYANCES 249 Ex ISTING CREDITORS-DENIAL OF RELIEF. Existing creditors may be denied relief against a conveyance fraudulent as to them, if they delay too long. 6. FRAUDULENT CONVEYANCES 299(1) CREDITOR NOT DEFRAUDED-SUFFICIENCY OF In suit to set aside deed by husband and wife to their son as made in fraud of creditors, evidence held to show, considered in connection with the lapse of time between the conveyance and the creation of plaintiff's claim, that plaintiff was not injured or defrauded by the convey ance. their son J. J. Johnson, on the 24th day of December, 1900. J. J. Johnson was six or seven years of age at that time. M. M. Johnson recorded the deed the date it was executed, and the original remained in the clerk's office from that time until after the institution of this suit. A short time before this conveyance was made, M. M. Johnson gave J. W. Johnson and Mrs. Minnie Cherry an 80-acre tract, each. He afterwards sold a 40-acre tract to J. W. Johnson. This compris ed all his real estate except a 40-acre tract, which he afterwards forfeited for taxes, and his home place of 84 acres which he still owns. Touching his financial condition at the time of this conveyance, M. M. Johnson testified, in substance, that he had borrowed some money and owed a few small accounts; that he had been sued for an amount he did not owe, but that he paid it, and was in condition to pay any other amount he owed; and that he was not involved at the time as surety Appeal from Columbia Chancery Court; for his brother. Mrs. S. E. Johnson testified Jas. M. Barker, Chancellor. that when they moved to Minden, La., her Suit by the Lee Hardware Company, Lim-husband was indebted to John Souter, and ited, against M. M. Johnson and others. that she secured this indebtedness by a mortFrom decree dismissing the bill, complainant appeals. Affirmed. McKay & Smith, of Magnolia, for appellant. Stevens & Stevens, of Magnolia, for appellees. HUMPHREYS, J. Appellant instituted suit on the 23d day of July, 1915, against appellees in the Columbia chancery court to cancel a deed executed by M. M. and S. E. Johnson to J. J. Johnson, on the 24th day of December, 1900, to the following lands, to wit, N. 2 of the S. E. 14 less three acres in the N. W. corner of said 80-acre tract, Sec. 23, Tp. 18 S., R. 22 W, in Columbia county, Ark.; and a deed of trust executed by J. J. Johnson and Effie Johnson, his wife, to N. E. Wise, trustee for S. E. Johnson. It was alleged that the deed was voluntary and made in fraud of the rights of existing and subsequent creditors, and that the deed of trust was without consideration, but if there was a valuable consideration, it was made to hinder and delay the creditors of M. M. Johnson, and that Mrs. S. E. Johnson participated in the fraud. On the same day appellant filed a lis pendens notice in accordance with the statute. On the 19th day of October, 1915, appellees filed answer controverting the material allegations of the bill. The cause was heard by the court upon the pleadings and depositions of M. M. Johnson, J. J. Johnson, S. E. Johnson, and R. E. Hayes, and a decree rendered dismissing the bill for want of equity, from which an appeal has been properly prosecuted to this court. M. M. and S. E. Johnson are the father and mother of J. J. Johnson, J. W. Johnson, and Minnie Cherry. The land in question was the property of M. M. Johnson, and he and his wife conveyed it by deed of gift to He then re gage on an 80-acre tract of her own land. This suit was brought for the purpose of subjecting the property in question to the payment of that judgment. In 1907, M. M. Johnson and his wife sold the timber on the land in question and executed a timber deed in which they covenanted that they were the owners of the land in fee. On January 20, 1914, J. J. Johnson and wife executed a mortgage on said real estate to Mrs. Sarai Emerson for $150, due one year after date. Un January 19, 1915, they executed a deed of trust to N. E. Wise, as trustee for Mrs. S. E. Johnson, for $300, in order to raise money to pay the Emerson mortgage and to pay an indebtedness J. J. Johnson owed the Turner Hardware Company, which last amount had been reduced to judgment and was a lien on said property. After judgment had been obtained against M. M. Johnson in the circuit For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |