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five years before he was testifying. That he had submitted both the propositions of $1,000 and a purchase and resale of the lands at an advanced price of that purchase pro

of the $1,000 other than what they told him. I champ did anything for him during four or He had never employed Cox to represent him. He acknowledged he and his associates were ready to pay any one $1,000 that secured money for them, and he believed the bonus was to be included in the principal and mort-posed by appellants to Beauchamp, and, upon gage.

Wright also denied any conversation with Cox, in which he had been informed that they could procure the loan through Beauchamp by paying him (Cox) $1,000.

Mack testified: That he had not employed Beauchamp in this or any other matter as his agent, and he made the deal to loan the money with Beauchamp. That he never got any part of the $1,000 paid to Cox and Beauchamp for procuring the loan, and answered further, as follows: "Q. Did you ever have any understanding, tacit or expressed, in any way, that you were to have any part of it? A. Most emphatically not. Q. Have you ever received any part of it from Mr. Cox, or me? A. Not a penny." He said first the appellants wanted the money for five years, and he felt that was too long a time, and afterwards, when Beauchamp came to see him about it, he agreed to let them have it on two years' time. The check covering the consideration for the land was given by Beauchamp personally, because the exact acreage was not known at the time Beauchamp and Williams departed for Harrisburg, and the title was taken in witness' name to protect him until the mortgage was executed. He denied ever having had any conversation with Smith relative to the making of the loan about the bonus, and said it was first broached to him by G. W. Cox, about three weeks before the loan was made. In this conversation, Cox said they would give $2,000 personal security and a bonus of $500 in addition to secure the loan. He rejected this and all other propositions after he learned that this would be usurious, and said J. A. Smith had called on him 25 or 30 times before the loan was procured to see if some arrangement could not be made which was satisfactory. He told him if he could get things on a satisfactory basis he could make the loan, and thought he could get the money, if he could cash his time deposits at the bank. This was all he

ever said to appellant about getting the money from the bank. That he agreed with Mr. Beauchamp to make the loan on Saturday night between 7 and 9 o'clock, and it was closed on Monday or Tuesday following. That he saw the bank on Monday and made the arrangement that he could draw the money at that time. That, ordinarily, he would have given them a few days' notice before drawing such a large amount, but did not on this, as the deal went on through then. He did not see the bank as stated by Wright at the time. He told Beauchamp he would make the loan at the time the deal was closed. He could only recall one instance when an attorney other than Beau

discovering that it would be usurious, had declined to have anything further to do with the loan. About a week before the deal was consummated, he offered to lend the money for one year, to be secured by a mortgage on the lands bought and on Mrs. Thompson's farm. He denied any conversation with J. A. Smith on Saturday before making the loan, and stated the only proposition advanced by Smith or any of the other appellants had been rejected by him. Beauchamp told him the night of the loan that he represented the appellants. Witness never received anything either directly or indirectly, other than the stipulated interest in the notes. He refused to make the loan on the basis proposed by appellants, because they wanted it for five years, and not until the time was reduced to one and two years would he agree to consider it. He was willing to accept Beauchamp's opinion as to the title to the land as a basis for the loan, and appellants never told him that Beauchamp was representing him, and he was not present when the papers were executed and delivered. During the time of the negotiations, he consulted with Beauchamp about the legal phase of the transaction, but all conversations related to matters that arose prior to the Saturday night conversation with Beauchamp, in which he dealt with him as the agent of appellants and agreedto make the loan.

Beauchamp testified that he was an attorney and advised Mack that to make a purchase and resell at an advance of $1,000 would be but a cover for usury, and G. W. Cox told him after that that appellants were not satisfied because the deal had fallen through. He suggested to Cox that, if the defendants would give them the $1,000 it was currently rumored would be paid to any one procuring a loan for them, he and Cox would attempt to do so. That Cox went to see the defendant's attorney about 7:30 Sat

urday evening and informed him that they would pay the money. Witness at once went to see Mack and, after suggesting various deals, all of which were rejected, finally induced him to agree to let them have the money on one and two years' time. Sunday morning, Cox informed him that appellants had accepted the terms and witness was to accompany Williams to Harrisburg to examine the records. Before their departure, witness had arranged with Mack that he should give his personal check for the consideration, which Mack promised to order paid. He further arranged with Cox to be assured the money would be paid over in the event the title was accepted. Having satisfied him

self as to the title, he took a warranty deed from the vendors, to plaintiff, Mack, who in turn afterwards quitclaimed to defendants. That evening he delivered the deed to appellant Smith, who gave him a check for $1,000, one-half of which he paid to Cox. Further: "Q. Were you representing the defendants in getting this loan for them? A. I thought I was. I represented them either knowingly or unknowingly, I don't know which. I thought I was representing them, and I know they accepted what I did, and the deal went through just that way, and they paid me the $1,000, and Clyde Mack never had a cent of that money, or any other money of mine, except whatever store account I had down there. I have paid that just like anybody else does." Said further: That he had never been general attorney for Mack. That there was no understanding then, nor had there been, that he was his attorney. That he transacted some business for Mack, who did not have much business. On cross-examination, he stated that he made all arrangements with Cox, who stated he was representing appellants, which was borne out by the manner in which the arrangements were carried out. He took the title in Mack's name, at the time the land was bought, being fearful that appellants, if they got the title in their name, would refuse to pay the bonus. The only conversation he had with any of the appellants about the matter was on Sunday, and he remarked to Smith, "This is a big transaction, Joe, and I don't like to assume the responsibility of passing on the title." Smith replied that it was all right.

money; that Beauchamp fixed up the papers for Mack. In reply to the question if he had not told one of the attorneys that Beauchamp was Mack's agent, and he represented appellants, he said: "You asked me that question, if me and Beauchamp were these people's agents, and I said you could call it anything you wanted to. They told me to get this money, if I could. Q. Did you not say this, 'I was these people's agent, and Beauchamp was Mack's agent'? Or did I not ask you if you were their agent and Beauchamp was Mack's agent, and you said, 'Yes, sir'? A. That may have been what I said. I don't know what arrangement Mr. Mack or Mr. Beauchamp had." He gave defendants to understand that the $1,000 for Beauchamp must be paid in cash. He had nothing to do with closing out the transaction.

Another witness testified that Smith was very anxious about the loan and came into the store to see Mack 12 or 15 times shortly before it was made; sometimes, several times a day. Another clerk testified about to the same effect.

The court rendered a decree for the amount due upon the notes, and a foreclosure of the mortgage and a sale of the lands, dismissed the cross-complaint, and from the judgment appellants appealed.

Block & Kirsch, of Paragould, for appellants. M. P. Huddleston, of Paragould, for appellee.

KIRBY, J. (after stating the facts as above). [1] The sole question in this case is one of fact. The law is well settled that, "to sustain the plea of usury, it must appear that excessive interest was paid to the lender, or that a bonus or commission was paid to the agent of the lender with his knowledge, or under circumstances from which his knowledge will be presumed, which commission when added to the interest paid, or to be paid to the lender would exceed the lawful rate." The burden of proof is upon the party who pleads usury to show clearly that the transaction was usurious. Banks v. Flint, 54 Ark. 40, 14 S. W. 769, 16 S. W. 477, 10 L. R. A. 459; Vahlberg v. Keaton, 51 Ark. 535, 11 S. W. 878, 4 L. R. A. 462, 14 Am. St. Rep. 73; Thompson v. Ingram, 51 Ark. 547, 11 S. W. 881. In Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781, the court said: "Our law visits on a lender, who contracts for usu

Cox testified that he was at first a partner with appellants, but dropped out about two weeks before the loan was procured. After he learned that Mrs. Thompson's farm would be included as security, he tried to get Mack to lend the money, but he refused when he found the transaction would be usurious. On Saturday night, in a conversation with Beauchamp, he said defendants were willing to pay the $1,000, and that he (Beauchamp) should try to get the money for them. Accordingly, Beauchamp induced Mack to make the loan, on one and two years' time, which terms the appellant accepted after some hesitancy. They understood that the $1,000 was to go to Beauchamp, who afterwards divided it with the witness. Witness did not represent Mack, nor did he give him any part of the $1,000. While Beauchamp was at Harris-rious interest, however small, a forfeiture burg, he telephoned witness to get up the money, which, as they then agreed, was later done. On cross-examination, he stated he told Smith, on his return from Memphis, that he could get the money from Mack; that he did not tell them he would procure it for them for $1,000; that his suggestion was gratuitous at the time; that he did not know [2] If Beauchamp acted as the agent of the whether any of them talked to Mr. Beau- borrowers, alone, in procuring the loan, it

of his entire loan and the interest thereon. It follows from the plainest principles of justice that such a defense shall be clearly shown before the forfeiture is declared. Usury will not be inferred from circumstances when the opposite conclusion can be reasonably and fairly reached."

the bonus or not, for what the borrower pays
to his own agent for procuring the loan is
no part of the sum paid for the loan or for
forbearance of money. Vahlberg v. Keaton,
supra. "To constitute usury, there must be
an agreement on the part of the lender to
receive and on the part of the borrower to
give for the use of money a greater rate of
interest than 10 per cent." Bank v. Murphy,
83 Ark. 36, 102 S. W. 699.
sole question in

[3] As already said, the

this case is one of fact. The lender denied positively any agreement to make the loan upon receipt of $1,000 bonus above the amount of the interest agreed to be paid, and stated that he absolutely refused to make the loan at all when he learned that such a transaction as proposed to him would be usurious; that, later, he was approached by Beauchamp, who insisted upon his making the loan, and agreed to do the work of getting up the papers for nothing if the loan could be arranged. He refused then to make the loan for the time proposed, but later agreed to and did make it for two years. He denied receiving any bonus, and that any one else was acting as his agent in receiving one. Appellants do not deny that they offered to pay the bonus to any one who could procure the loan, and both Cox and Beauchamp stated positively that they procured the loan and received the bonus; Cox insisting with Beauchamp that appellants were still willing to pay the $1,000, and that the loan should not be permitted to fall through, and that he ought to be able to procure it, and that he would pay him half the bonus if he would assist in procuring the loan or get Mack to make it. These witnesses both testified that they did procure the loan from Mack, that they

received the bonus and divided it between themselves, and that Mack had nothing to do with it and did not receive any part of it. Of course, if appellants were believed, the transaction was usurious; but the evidence is in direct and irreconcilable conflict, and

it was passed upon by the chancellor, and we cannot say that his finding and decision is against a preponderance of it.

Such being the case, the decree is affirmed.

GRAND LODGE, A. O. U. W. OF
ARKANSAS v. DREHER.

(Supreme Court of Arkansas. Dec. 23, 1912.)
EXCEPTIONS, BILL OF (§ 23*)—-INCORPORATING
TESTIMONY BY REFERENCE.

A direction in a bill of exceptions, the "clerk here insert testimony," did not authorize consideration as a part of the bill of testimony subsequently transcribed and certified to by the official stenographer, where it did not appear that the transcribed testimony was approved by the trial judge, or filed by the clerk until after the expiration of the time for filing the bill of exceptions.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 30; Dec. Dig. § 23.*]

Appeal from Circuit Court, Arkansas County; Eugene Lankford, Judge.

Action by Christina Dreher against the Grand Lodge of the Ancient Order of United Workmen of the State of Arkansas. From a judgment for plaintiff, defendant appeals. Affirmed.

Carmichael, Brooks & Powers, of Little Rock, for appellant. Pettit & Pettit, of Stuttgart, and Moore, Smith & Moore, of Little

Rock, for appellee.

HART, J. Appellee brought this suit against appellant in the circuit court to recover the amount of a beneficiary certificate issued January 6, 1899, to her husband, Nicholas Dreher, deceased. Appellant filed an answer in which it stated that it had issued the certificate upon an agreement with Nicholas Dreher that the same was issued to him subject to the laws of the order then in force, or which might thereafter be adopted. The answer further states that Nicholas Dreher failed and neglected to pay his dues and assessments for the month of October, 1905, and refused to pay any dues and assessments from and after that time; that he

thereby forfeited all rights of a beneficial member, and that he was never reinstated at any subsequent time; that at the time Dreher applied for his benefit certificate there was a law of the order in force to the effect that any member who should enter into the business of selling by retail intoxicating liquors as a beverage should be expelled; and that Dreher, in disregard thereof, entered into the occupation of selling intoxicating liquors as a beverage about the month of July, 1905, and continued until in October, 1905, in the city of Stuttgart, where he resided. Wherefore, it was claimed that he had forfeited all rights as a beneficial member of the association prior to the time of his death, and that Christina Dreher, as his wife and beneficiary, was not entitled to recover on the certificate. The jury found for appellee in the sum of $1,000, the amount named in the certificate, and the case is here on appeal.

The transcript in this case purports to consist of two separately bound packages of paper, both of which appear to have been filed with the clerk of this court on the same day. The first, which is properly the transcript, contains the pleadings, a skeleton bill of exceptions, containing the charge of the court, the motion for a new trial, orders, and judgment. The only testimony in the skeleton bill of exceptions consists of seven preliminary questions and the answers thereto propounded to Mrs. Christina Dreher, appellee.

Then we find a direction as follows: "Clerk here insert testimony." The case was tried at the November term, 1911, of the Arkansas circuit court, and the order overruling the motion for a new trial was made November 7, 1911. In that order it appears

Therefore the judgment will be affirmed.

MAYHEW v. TODISMAN et al. (Supreme Court of Missouri, Division No. 1. Nov. 30, 1912.)

1. STATUTES (§ 267*)—AMENDMENT-RETROACTIVE EFFECT.

343) to Rev. St. 1899, § 650, giving actions to The amendment of 1909 (Laws 1909, p. quiet title, cannot affect judgments recovered prior to such amendment.

that 60 days was allowed appellant in which says: 'If a paper which is to constitute a to file its bill of exceptions. The skeleton part of a bill of exceptions is not incorporatbill of exceptions shows that it was approved ed into the body of the bill, it must be anand signed by the circuit judge on the 6th nexed to it, or so marked by letter, number, day of January, 1912, and on the same day or other means of identification mentioned was filed in the office of the circuit clerk. in the bill as to leave no doubt, when found What purports to be the testimony consists in the record, that it is the one referred to of 120 typewritten pages which was filed in in the bill of exceptions.' And these means the office of the circuit clerk on February 1, of identification must be obvious to all. No 1912. It does not appear to have been ex- merė memorandum, intelligible it may be to amined, approved, or authenticated by the a single person, even the clerk, but indicating circuit judge. It is now contended by coun- nothing to any one else, will be sufficient. sel for appellee that the 120 pages of type- They must be such that any one going to the written matter purporting to be the testi-record can determine what document is to be mony taken at the trial is not properly a inserted, or, after insertion, that the clerk part of the bill of exceptions, and is there- has made no mistake. The record must fore not a part of the record on this appeal. prove itself, and not the record and the tesThe grounds upon which appellant seeks timony of the clerk. The clerk changes; the to reverse the judgment cannot be reviewed record endures. And long after judge and on this appeal without a consideration of the clerk are both gone the record, if good, must testimony taken at the trial. Therefore, it carry on itself the evidence of its own inis insisted by counsel for appellee that the tegrity." judgment should be affirmed. They rely on the case of Dozier v. Grayson-McLeod Lumber Co., 100 Ark. 244, 140 S. W. 7. There the court held: "Where a bill of exceptions recited, "The following testimony was introduced before the court and jury, which was all the evidence introduced by either party (insert testimony),' meaning that the clerk should insert the official stenographer's notes of the testimony, and the certificate of the stenographer shows that the testimony was subsequently transcribed, and it does not appear that the transcribed testimony was ever presented to the circuit judge for examination, it did not become a part of the bill of exceptions, and cannot be considered on appeal." See, also, Int. Order of 12 Knights & Daughters of Tabor v. Jackson, 142 S. W. 1151. That case is squarely in point. There was no sufficient call for the testimony in the skeleton bill of exceptions. It is certain that nothing that is not reduced to writing can be embodied in the bill of exceptions by reference to it alone. Any other rule would make the final record of a case as uncertain as the memory or the will of the clerk to whom its final making up might be referred, and would place the rights of parties who have judgments of record entirely in the power of the person who eventually makes up the bill of exceptions for this court. In the case at bar the call for the testimony does not identify it, and the 120 pages of typewritten matter which purports to be the testimony taken at the trial was not approved by the judge, and was not even filed by the clerk until after the time given for filing the bill of exceptions had elapsed. The reason for the rule is aptly stated by Mr. Justice Brewer in the case of A. & N. Railroad Co. v. Wagner, 19 Kan. 335, as follows: "And in this we appropriate the language of the Supreme Court of the United States in the case of Leftwich v. Lecanu, 4 Wall. 187, 18 L. Ed. 388, in which the court

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.*] BANKRUPTCY (§ 142*)-ADMINISTRATION OF BANKRUPT'S ESTATE-TITLE OF TRUSTEE.

2.

Under Bankruptcy Act July 1, 1898, c. 541, $$ 70, 70e, 30 Stat. 565, 566 (U. S. Comp. St. 1901, pp. 3451, 3452), providing that the bankrupt's trustee shall take the title of the bankrupt to property transferred in fraud of his creditors, and may avoid any transfer by the bankrupt which any creditor might have avoided and recover the property transferred, the fraudulently conveyed which entitles him to sue trustee has no title, interest, or estate in land to set aside the transfer, under Rev. St. 1899, § 650, as amended in 1909 (Laws 1909, p. 343), providing that any person claiming any title his interest, since the bankrupt was without or estate in real property may sue to determine title or right of action, and a creditor has no interest or estate in the property which his debtor has fraudulently conveyed.

Cent. Dig. § 222; Dec. Dig. § 142.*]
[Ed. Note. For other cases, see Bankruptcy,
3. BANKRUPTCY (§ 302*)—ADMINISTRATION OF
ESTATE-SUIT TO SET ASIDE FRAUDULENT
CONVEYANCE.

aside a fraudulent conveyance by the bankrupt.
A petition by trustee in bankruptcy to set
under Bankruptcy Act July 1, 1898, c. 541, $8
70, 70e, 30 Stat. 565, 566 (U. S. Comp. St.
1901, pp. 3451, 3452), providing that the trus-
tee shall have the title of the bankrupt as to
all property transferred in fraud of creditors,
and may avoid any transfer which any creditor
might have avoided for alleged fraudulent,
transfers, must clearly show that the property
is needed to pay claims filed against the bank-
rupt debtor.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 456, 457; Dec. Dig. § 302.*]

DEED.

Where property was conveyed to a son for his mother, and the deed to the son was recorded, the omission of the mother to record the deed from her son would not vitiate it or give existing creditors a right to complain, although she could not claim the property against those who had given the son credit on his apparent ownership.

4. FRAUDULENT CONVEYANCES (§ 154*) the county of Barry and state of Missouri, to RIGHT TO SET ASIDE-FAILURE TO RECORD wit: Lot three (3) in block five (5) original townsite of Monett, Missouri, and that defendant Hattie Todisman claims, so plaintiff, D. S. Mayhew, is informed and believes, title to the above-described real estate in fee by reason of certain deeds from Vaughn H. Todisman to Hattie F. Todisman conveying to her the above-described real estate, which deeds of conveyance plaintiff asserts and charges to be fraudulent and void by reason of having been made in fraud of creditors of the said Vaughn H. Todisman. Wherefore plaintiff, D. S. Mayhew, trustee in bankruptcy as aforesaid, prays the court to ascertain and

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 485-492; Dec. Dig.

§ 154.*]

5. FRAUDULENT CONVEYANCES (8 25*)-VALIDITY-CHANGE OF DATE.

Where no rights of creditors intervened, an alteration in the date of a deed from a son to his mother, made after acknowledgment, but before record, will not avoid it as to subsequent

creditors of the son.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 60; Dec. Dig. § 25.*]

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

determine the estate, title, and interest of

said parties hereto, respectively, in and to the above-described real estate, and to determine and adjudge by its judgment, as provided by section 650, Revised Statutes of Missouri 1899, the title, estate, and interest

of the parties severally hereto in and to said above-described real estate, and for all other

relief."

Action by D. S. Mayhew, as trustee in bankruptcy of Vaughn H. Todisman, against Hattie F. Todisman and others. From a judgment for plaintiff, defendants appeal. which are presented to this court by the par

Reversed.

The petition, filed May 20, 1908, is entitled as above, and, omitting caption, the description of one lot, not in controversy here, and signature is as follows: "The plaintiff, D. S. Mayhew, represents to the court that upon the day of December, 1907, Vaughn H. Todisman filed his petition in the District Court of the United States for the Judicial District of Missouri, Southwest Division, and therein prayed to be declared bankrupt; that on the 18th day of December, 1907, the said Vaughn H. Todisman was duly adjudged a bankrupt in said cause; that on the 8th day of January, 1908, the plaintiff, D. S. Mayhew, was duly appointed by said court trustee in bankruptcy, and thereupon accepted the trust and qualified; that on the day of April, 1908, plaintiff, as such trustee, filed his petition in said United States court for an order to institute, in behalf of all creditors of said Vaughn H. Todisman, an action in the Barry county circuit court to set aside certain deeds executed by said Vaughn H. Todisman to Hattie F. Todisman to certain real estate hereinafter mentioned; that on the 21st day of April, 1908, Hon. A. E. Spencer, a referee in bankruptcy of said United States District Court, heard said petition, and ordered that said petition be sustained and plaintiff, D. S. Mayhew, trustee as aforesaid, authorized and empowered to institute and prosecute this action for the purposes aforesaid, the premises considered. This plaintiff, D. S. Mayhew, trustee, for his cause of action states that Hattie F. Todisman is the lawful wife of M. Y. Todisman; that Vaughn H. Todisman is her son; that said Vaughn H. Todisman is the owner, in fee simple absolute, in and to the following described real estate, lying, being situated, in

The evidence, including the original deeds

ties for examination, shows that on the 15th day of December, 1902, two deeds were drawn, signed by the respective grantors and acknowledged before D. N. Jewett, justice of the peace for Barry county. One was a warranty deed from M. Y. Todisman and wife, the father and mother of Vaughn H. Todisman, the present bankrupt, to their said son, and was filed for record on the 26th day of March, 1903. The other was a warranty deed from the latter to his mother, and was never filed for record in the form in which it was originally signed and acknowledged, but on the 30th day of January, 1906, the date, both in the body of the deed and in the acknowledgment, was erased, and the lastnamed date substituted, and it was filed for record, as so changed, on the 2d day of February following. In the meantime Vaughn H. Todisman mortgaged the lot for $337, which was raised and used in the construction of a party wall in connection with the owner of an adjoining lot. He and his mother explain the alteration in the deed by saying that this mortgage was made by the son because it was ascertained that the record title was in him, and that when it was determined to record the deed they consulted Mr. Jewett, who advised the alteration as affording a solution of that difficulty. Although Mr. Jewett's deposition was read upon the trial, both parties seemed to avoid all mention of the circumstance in his examination; but the deeds speak for themselves, and, in view of the fact that his certificate and signature are not questioned on either deed, his silence, with the acquiescence of both parties, authorizes the assumption that both deeds were delivered on the same day. There is no suggestion in the record that Vaughn H. Todisman became indebted to any consider

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