this north boundary extends west 800 poles to a white oak about 10 poles east of Bee (evidently Big) creek. We agree, therefore, with the chancellor that Williams' adverse holding was within the limits of his grant. The finding by the chancellor, as a fact, that J. M. Wright was in possession of the Mosey Wright, or, as it was sometimes called, the Owens, place, for more than seven years after the Williams' possession went down, we think is warranted by the evidence. We, however, do not think it clear that this possession was under the Clemmons deed to him, dated in 1858. On the 16th of July, 1859, he took a deed from William Pile for 200 acres. After describing this tract, the recital is that it is "the land whereon Mosey Wright now lives, and formerly owned by John A. West." This is, as admitted, the tract granted to John A. West on the 8th of April, 1828, antedating entry No. 496 about two years, and grant 6,420 about ten years. In view of all the facts, we think the adverse possession of Wright was limited to the boundaries of the West grant, and that the chancellor was, as a matter of law, right in so holding. The record shows that a part of the 100 acres covered by entry 192, dated June 10, 1829, on which issued grant 2,468, dated June 10, 1829, lies within the limits of grant 9,946. This, we are satisfied, is one of the tracts which made up the 600 acres of prior claims to be platted out. Whatever part of this tract that lies within the Williams grant complainants have no claim to and have no right to recover. As it is not clear how much of this tract does lie within grant 9,946, this case may be remanded to ascertain the facts, and for a decree founded thereon. The remand will also include the order of reference provided for in the chancellor's decree. We are entirely satisfied with regard to the chancellor's holding that entry 496, on which grant 6,420 issued, was a special entry, and, this being so, the grant related to its date, and thus was prior in right to grant 4,719. We are further satisfied that the possession of Williams, being on the interlap of 6,420 and 9,946, was effectual in creating a fee in him, which descended to his heirs. We concur with the chancellor in his opinion that complainants were not entitled to a recovery of any of the land embraced in grant 4,719, as they had no possession within that grant. Elliott v. Cumberland Coal & Coke Co., 109 Tenn. 745, 71 S. W. 749. We also concur in his holding limiting the recovery of Mary F. Wright in this case by the terms of her deed to Blanchard and others, and also that complainants under their bill are not entitled to a decree, save for their respective interests in the property sued for. The chancellor's decree is affirmed, except in the respect indicated herein. The costs of appeal will be paid as follows: One-third by complainants, one-third by Cumberland Coal & Coke Company and the Mississippi Valley Insurance Company, and the remaining onethird will be paid by the other defendants named in the bill. JONES v. SOUTHERN COOPERAGE CO. (Supreme Court of Arkansas. April 11, 1910.) 1. SALES (§ 202*)-TITLE PASSING-EXECUTION OF MORTGAGE AS CONDITION. the buyer would execute a mortgage to secure Where property was sold on condition that the purchase money, and he did not do so, title did not pass out of the seller, though possession was given. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 542; Dec. Dig. § 202.*] 2. SALES (§ 197*)—TITLE ACQUIRED. than the seller had. A buyer acquires no other or greater title [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 512, 513; Dec. Dig. § 197.*] 3. CORPORATIONS (§ 661*)-FOREIGN CorporaTIONS RIGHT TO SUE. A Missouri corporation may sue for its property in this state, whether or not it is doing business therein. WOOD, J. The appellee seeks by this appeal to recover of appellant a wagon and team of mules valued at $375. Appellee bought the mules from one M. S. St. Clair under the following contract, signed by him: "Minturn, Ark., Feb. 18, 1907. This is to certify that I have this day sold my team of mules, wagon, and logging outfit to Southern Cooperage Co., at Minturn, Ark., and hereby declare that there is no lien nor mortgage or any other indebtedness on this team of mules, wagon, and logging outfit. Amount paid me is three hundred and seventy-five dollars in full." The property was delivered by the vendor to the vendee at the latter's office, and by the direction of the vendee, the appellee, was delivered to one Kavanaugh, to whom the appellee sold the property for the same price it had paid, upon condition that Kavanaugh executed a mortgage to appellee to secure the purchase money. Kavanaugh testified: "I entire tract. Each plaintiff claimed ownership under conveyances from J. W. C. Thomas and wife; the deed of Martin being dated November 3, 1905, and that of Dobson August 23, 1906. In May, 1907, the defendant, Weaver-Dowdy Company, procured a deed from Thomas for the entire tract, and caused the same to be immediately recorded, and was proceeding to take possession of the land when the two suits were instituted. At this time the deeds of Martin and Dobson were not recorded. By agreement the two suits were consolidated and were heard as one. received the property from St. Clair with the expectation of it being my own, provided I fixed the mortgage as I was to give them." The bill of sale shows that appellee purchased the property. Under this instrument the title passed from St. Clair to appellee. The testimony of Kavanaugh shows that he purchased the property of appellee upon condition that he would execute to appellee a mortgage to secure the payment of the purchase money. This mortgage he did not execute, and the title, therefore, to the property, did not pass out of appellee to Kavanaugh. The appellant, who purchased from Kavanaugh, acquired no other or greater title than Kavanaugh had. The appellee, a Missouri corporation, had the right to institute and maintain a suit for its property in this state, whether it was doing business under our statutes in this state or not, and as appellant was claim-al defense in the suit instituted by Dobson ing the property as his own, and had convert ed the same to his own use, no demand of same was necessary. These elementary principles, applied to the undisputed facts of this record, determine the controversy in favor of appellee, and it is unnecessary to discuss in detail the various questions argued in briefs of counsel. The judgment is affirmed. WEAVER-DOWDY CO. v. MARTIN et al. FIDE PURCHASER-NOTICE OF PRIOR DEEDS Where defendant's agent in the course of his duties obtained actual notice of the unrecorded deeds of prior purchasers of land, the prior purchasers were protected as against defendant as if their deeds had been recorded. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 491; Dec. Dig. § 229.*] 2. VENDOR AND PURCHASER (§ 228*)-BONA FIDE PURCHASERS-NOTICE. A conveyance of an equity of redemption was valid as against a subsequent purchaser under a recorded deed who had notice of the conveyance. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 501; Dec. Dig. § 228.*] Appeal from Chancery Court, Independence County; T. H. Humphries, Chancellor. Consolidated actions by J. R. Martin and by D. E. Dobson against the Weaver-Dowdy Company. From a decree for plaintiffs, defendant appeals. Affirmed as to plaintiffs. McCaleb & Reeder, for appellant. Samuel M. Casey, for appellees. BATTLE, J. Two suits were instituted in the Independence chancery court against Weaver-Dowdy Company, one by J. R. Martin and the other by D. E. Dobson, in which each plaintiff claimed to be the owner of a portion of the E. % of the S. W. 4 of section 18, township 14 N., range 7 W., the two, in the aggregate, claiming ownership of the The defense of the defendant in both suits was to the effect that the deeds of plaintiffs were not recorded, and that it purchased the land for a valuable consideration, without notice, actual or constructive, of the prior deeds of Thomas to plaintiff. It set up an addition to the effect that the deed of Dobson, though absolute in form, was intended for a mortgage to secure certain indebtedness of Thomas to Dobson, and was not recorded before the execution of deed by Thomas to the defendant. Plaintiffs in both suits asked that the deed of Thomas to the defendant be canceled. The court rendered a decree in favor of plaintiffs, canceling the deed of Thomas to Weaver-Dowdy Company, and holding the plaintiffs to be the owner of the land involved. The evidence in the case clearly and satisfactorily proved that the agents of the defendant, while in the course of the performance of his duties as such, had actual notice of the existence of plaintiffs' deeds and title to the land in controversy before it purchased the same. This was equivalent to a record of them (deeds), and fully protected plaintiffs against the subsequent claim and deed of the defendant. Floyd v. Ricks, 14 Ark. 286, 294, 58 Am. Dec. 374; Brown v. Hanauer, 48 Ark. 277, 3 S. W. 27; Storthz v. Chapline, 71 Ark. 31, 70 S. W. 465; Seawell v. Young, 77 Ark. 309, 91 S. W. 544. an absolute deed. If it be assumed that it The conveyance of Thomas to Dobson was was intended as a mortgage to secure a debt, as the defendant insists, it was valid against the defendant. It (defendant) had notice of its existence before purchasing the land, and as against it no record was necessary. Thomas conveyed all the interest he had in the land to Dobson. He had nothing but an equity to redeem. Whatever interest he had could be enforced only in a court of equity. It was not statutory, or dependent upon the statute for enforcement, but purely equitable, and exists dehors the record, and cannot be filed or made a matter of record. Having purchased with notice of Dobson's deed, the defendant took nothing as against him and those claiming under him, but subject to his rights, whatever they may be. Martin v. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Schichtl, 60 Ark. 595, 31 S. W. 458; Ft. Smith | effect that before Harold moved off he agreed Milling Co. v. Mikles, 61 Ark. 123, 32 S. W. to hold and occupy the place as appellant's 493. tenant for the year 1905; but this was never Decree affirmed, so far as it affects the brought to the notice of either Cook or appelrights of the plaintiffs. WAGNER v. HEAD. (Supreme Court of Arkansas. April 18, 1910.) 1. ADVERSE POSSESSION (§ 57*)-CONTINUITY OF POSSESSION-EVIDENCE-SUFFICIENCY. Evidence held not to sustain a plea of continuous adverse possession for two years under a tax deed, but to show fitful acts of possession by the grantee, not brought to the notice of the owner. [Ed. Note.-For other cases, see Adverse Possession, Dec. Dig. § 57.*] 2. TAXATION (§ 800*) - PAYMENT TAX SALE-ATTACK. - ILLEGAL An owner of land, who has paid taxes thereon before a sale for delinquent taxes, need not file the affidavit of tender of the amount of the taxes prescribed by Kirby's Dig. § 2739. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 1586; Dec. Dig. § 800.*] Appeal from Circuit Court, Little River County; Jas. S. Steel, Judge. Action by Claude Head against W. A. Wagner. From a judgment for plaintiff, defendant appeals. Affirmed. lee, so far as the evidence in this case shows. After Harold moved off the place, in the spring or summer of 1905, appellant went on it, and remained there about three months, but got sick, and moved off. This was not brought to the attention of appellee. The place remained vacant until the summer or fall of 1906, when a man named Elliott obtained appellant's permission for one of his timber cutters to occupy the house on the land under an agreement to repair it. Elliott also applied to Cook for permission to occupy the house, and the latter informed him that he had sold the land to appellee. The timber cutter moved into the house in the summer or fall of 1906, and remained there until about February 1, 1907. During all this time the house was in a dilapidated condition, the fences were down, and the place was vacant, except the house. It continued to be vacant until the early part of the year 1908, when appellant moved into the house, and very soon thereafter appellee began this suit against him for possession. The evidence does not sustain appellant's plea of continuous adverse possession for a L. A. Byrne, for appellant. J. T. Cowling period of two years. At most he has proved and Jas. D. Head, for appellee. MCCULLOCH, C. J. This is an action instituted by appellee to recover from appellant a tract of land in Little River county, the title to which he (appellee) claims under mesne conveyances from the United States as swamp and overflowed land, and also under a sale in 1882 by the commissioner of the chancery court in an overdue tax suit. The validity of his title is conceded, but appellant asserts title under a deed executed to him in 1904 pursuant to a sale for delinquent taxes, and by adverse possession for two years under said tax deed. The tax sale was void by reason of the fact that the taxes for which the land was sold were paid by the owner. There was a trial before the court sitting as a jury, and a finding against appellant on his plea of adverse possession. He seeks a reversal of the judgment on the alleged ground that the evidence does not sustain the finding. Appellee purchased the land in April, 1905, from T. B. Cook, who was the owner and in possession by his tenant, one Harold. Cook built a cabin on the land in the year 1900, and cleared about 30 acres, and had it put in cultivation. Crops were made on it by Cook's tenants during the years 1901, 1902, 1903, and 1904. Harold was on the land as Cook's tenant, and he remained on the place as such tenant until the spring of 1905, when Cook sold the land to appellee, but on account of the overflow he was unable to make a crop, and moved. No crop has been raised on the place since then. There is evidence to the only fitful acts of possession, which were nev er brought to the notice of appellee, and which lacked sufficient continuity to amount to an investiture of title by limitation. Scott v. Mills, 49 Ark. 266, 4 S. W. 908. It is further insisted that the action should have been dismissed because of appellee's fail2739, Kirby's Digest, to the effect that he had ure to file the affidavit required by section tendered the amount of taxes for which the land had been sold. The taxes had been paid before the sale. Therefore no tender was required. Kelso v. Robertson, 51 Ark. 397, 11 S. W. 582. Judgment is therefore affirmed. SMITHWICK v. OLIVER. (Supreme Court of Arkansas. April 11, 1910.) 1. LANDLORD AND AGENT (§ 323*)—EXISTENCE OF RELATION-LEASING ON SHARES. The leasing of land for a part of the crop created the relation of landlord and tenant between the owner and cropper. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1355, 1356; Dec. Dig. § 323.*] 2. REMAINDERS (§ 13*)-RIGHTS OF REMAINDERMEN-RENT. if a life tenant who has demised lands shall die Under Kirby's Dig. § 4688, providing that. before the day on which the rent becomes due, his administrator may recover such proportion of the rent as accrues before his death, where the life tenant rented land for a share of the crops raised for 1908, but died before the rent became due, the crop rent for 1908 should have been ap [Ed. Note. For other cases, see Remainders, Cent. Dig. § 9; Dec. Dig. § 13.*] portioned between the administrator of the life | ant for life who shall have demised any tenant and the next taker. lands or tenements so held, and shall die before the day when any rent on such demise shall become payable, may recover: Appeal from Clay Chancery Court; Frank First. If such tenant for life die on the day Smith, Chancellor. the rent becomes due, the whole rent. Sec Action by G. B. Oliver, administrator, ond. If he die before the day on which the against W. R. Smithwick. From a judg-rent becomes due, such proportion of the ment for plaintiff, defendant appeals. Re- rent as shall have accrued before his death." versed and remanded for new trial. In the present case the undisputed facts are that Casa A. Smithwick was a tenant F. G. Taylor and J. L. Taylor, for appel- for life. She rented the lands for the year lant. G. B. Oliver, for appellee. HART, J. J. J. Smithwick, a resident of Clay county, Ark., died intestate, owning certain lands in said county. He left surviving him his widow, Casa A. Smithwick, and his son, W. R. Smithwick, as his sole heir at law. On January 13, 1902, by agreement in writing, certain of said lands were set apart to Casa A. Smithwick for her natural life for her dower and homestead, and she entered into possession of same. For the year 1908 she rented a part of said lands for $380, evidenced by a promissory note, payable to her order on or before the 25th day of December, 1908. The remaining part of the land she rented for one-third of the corn and one-fourth of the cotton raised on it for the year 1908. On the 15th day of July, 1908, she indorsed said note to W. R. Smithwick, and delivered same to him. She died intestate on the 16th day of July, 1908. W. R. Smithwick collected said note when it fell due. About 175 bushels of corn, worth 50 or 60 cents per bushel, and cotton of the value of $94.54, were also delivered to him as rent. This suit was brought by G. B. Oliver, administrator of the estate of said Casa A. Smithwick, deceased, against W. R. Smithwick to recover the amount of said rent note and the rents so collected by him. There was a trial before a jury, and they returned a verdict for the administrator for the amount of the proceeds of the crop rent and for W. R. Smithwick for the amount of the note. Judgment was rendered upon the verdict. W. R. Smithwick has appealed from the judgment rendered against him. 1908 for a portion of the crop and died on the 16th day of July, 1908, before the rent became due. Therefore the court should have instructed the jury to apportion the rent as to time between W. R. Smithwick and G. B. Oliver, administrator of the esfor the error committed in not doing so the tate of Casa A. Smithwick, deceased, and judgment must be reversed, and the cause remanded for a new trial. PIERCE v. ST. LOUIS, I. M. & S. RY. CO. - MENTAL A passenger has no right of action for humiliation and mental suffering caused by the threatening to eject him for boarding the train train auditor cursing and abusing him and without a ticket on account of reaching it too late to purchase one, where the auditor finally accepted the cash fare tendered, and permitted him to continue to destination. [Ed. Note. For other cases, see Damages, Cent. Dig. § 100; Dec. Dig. § 49.*] Appeal from Circuit Court, Drew County; H. W. Wells, Judge. Action by M. V. Pierce against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Williamson & Williamson, for appellant. W. E. Hemingway, E. B. Kinsworthy, E. A. Balton, and Jas. H. Stevenson, for appellee. HART, J. On the 30th day of August, 1908, M. V. Pierce embarked on one of the Hence the judgment of the circuit court passenger trains of the St. Louis, Iron Mounwith reference to the rent note being in fa- tain & Southern Railway Company at Warvor of W. R. Smithwick, and no appeal hav- ren, Ark., for Monticello, Ark. When the ing been taken therefrom, the consideration train auditor came to him to take up his of it is not before us. The only question ticket, Pierce informed him that he had raised by the appeal is as to the question of reached the station too late to purchase a the crop rent. On this question the court ticket, and tendered his fare in money. The instructed the jury to return a verdict in fa- auditor at first refused to receive it, and vor of the administrator. In this the court cursed and abused Pierce in the presence of erred. The record shows that Mrs. Casa A. the other passengers, and threatened to eject Smithwick rented the land to one Catt for him from the train. The conductor interfera portion of the crop. This created the re-ed, and the auditor then received his fare lation of landlord and tenant between them. and permitted him to go to his destination, Neal v. Brandon, 70 Ark. 79, 66 S. W. 200. but continued to curse and abuse him. These Section 4688 of Kirby's Digest is as follows: facts were alleged by Pierce in a suit filed "The executor or administrator of any ten- by him against the railway company to re cover damages on account of the humilia-15. MALICIOUS PROSECUTION (8 48*)-PLEADtion and mental suffering occasioned him by ING COMPLAINT SUFFICIENCY. A complaint alleging that defendants willthe auditor's conduct. The railway compa- fully and maliciously and without probable cause ny demurred to the complaint. The demur-induced the grand jury to find an indictment rer was sustained and the complaint was dis- against plaintiff, and did willfully and malimissed. Pierce has appealed to this court. ciously and without probable cause instigate, aid and abet, advise, and encourage the prosecution In the case of St. Louis, Iron Mountain & of the charge thereunder, stated a cause of acSouthern Railway Company v. Taylor, 84 tion, though it was not alleged that the indictArk. 42, 104 S. W. 551, the court held (quot-ment was procured by defendants' fraud, pering syllabus): "Mental suffering alone, un-jury, or other unfair conduct. accompanied by physical injury or any other element of recoverable damages, cannot be made the subject of an independent action against a carrier for damages, even where the act or violation of the duty complained of was willfully committed." The rule was approved and applied in the case of Chicago, Rock Island & Pacific Ry. Co. v. Moss, 89 Ark. 187, 116 S. W. 192. Counsel for appellant recognizes the rule announced in these cases, but ask us to overrule it as being against the weight of authority and the better reasoning on the subject. The authorities bearing on the question were thoroughly considered and reviewed in the case of Railway Co. v. Taylor, supra, and no useful purpose can be served by again discussing the question. It is sufficient to say that the conclusion was reached in that case after a careful and deliberate consideration of the question, and no additional arguments are advanced for overruling these cases. The judgment is therefore affirmed. CASEY V. DORR et al. (Supreme Court of Arkansas. April 11, 1910.) 1. MALICIOUS PROSECUTION (§ 24*)—PROBABLE CAUSE EVIDENCE - INFERENCE FROM JUDGMENT OF CONVICTION. Unless shown to have been procured by fraud or undue influence, a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, though subsequently reversed and set aside. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 53; Dec. Dig. § 24.*] 2. MALICIOUS PROSECUTION ( 24*)-PROBA BLE CAUSE-INDICTMENT. The finding of an indictment is prima facie, but not conclusive, evidence of probable cause, but an acquittal is not evidence of the want of it. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 93; Dec. Dig. § 48.*] 6. MALICIOUS PROSECUTION (8 47*)—PLEADING (8$ 192, 367*) - COMPLAINT — MAKING MORE DEFINITE AND CERTAIN. ment of an indictment and instigation of a While a complaint based on the procureprosecution should state the means by which this was done, the failure to so state should be reached by a motion to make the complaint more definite and certain, and not by demurrer. Prosecution, Cent. Dig. $$ 91, 92: Dec. Dig. § [Ed. Note.-For other cases, see Malicious 47:* Pleading, Cent. Dig. §§ 408-427, 1173– 1193; Dec. Dig. §§ 192, 367.*] 7. PLEADING (§ 367*)-MAKING COMPLAINT MORE DEFINITE AND CERTAIN-DEmurrer TREATED AS MOTION Therefor. A demurrer to a complaint subject only to a motion to make more definite and certain may properly be treated as such a motion, and sustained with leave to amend. Cent. Dig. § 1173; Dec. Dig. § 367.*] Wood, J., dissenting. Appeal from Circuit Court, Independence County; Charles Coffin, Judge. Action by Don J. Casey against R. C. Dorr and others. From a judgment for defendants, plaintiff appeals. Reversed. Z. M. Horton, for appellant. Chas. F. Cole and McCaleb & Reeder, for appellees. MCCULLOCH, C. J. Appellant sued appellees to recover damages for malicious prosecution, and the court sustained a demurrer · to the complaint, which is as follows: "That on the 8th day of April, 1904, the grand jury of Independence county, Ark., presented to and filed in the circuit court of said county an indictment against this plaintiff in words and figures as follows, viz.: [Here follows copy of indictment returned against appellant for the crime of embezzlement.] That the allegations of said indictment were and are absolutely false. That the prosecu tion thereon continued from time to time, from said day and date until the October term, 1907, of the Independence circuit court, at which term of said court the plaintiff herein was put upon his trial on said indictment, and upon a trial by a jury in said court found 'not guilty,' and completely exonerated from all charges and imputation of guilt included and contained in said charge. That at and before the finding of Malice will be inferred from want of prob- said indictment, and at the finding thereof able cause. [Ed. Note. For other cases, see Malicious and conducive to and causing the finding Prosecution, Cent. Dig. §§ 67, 68; Dec. Dig. thereof, the defendants and each of them, 32.*] jointly and severally conspiring together and [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. § 49; Dec. Dig. § 24.*] 3. MALICIOUS PROSECUTION (§ 33*)-MALICE -INFERENCE FROM ACQUITTAL. An acquittal is not evidence of malice. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 69; Dec. Dig. § 33.*] 4. MALICIOUS PROSECUTION (§ 32*)-MALICE INFERENCE FROM WANT OF PROBABLE CAUSE. |