Even if the value of the surrendered crops was not sufficient to liquidate the note, still there was testimony tending to prove, as an additional consideration, the agreement on appellant's part to also surrender the possession of the premises, which he did.

In the case of Cavaness v. Ross, supra, relied upon by the appellee, we also said: "In cases of contract for the payment of a liquidated sum of money, the payment of a less sum will not be a good satisfaction, unless it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment." Here the payment was made and accepted, as the proof tended to show, before the time it was due.

In the case of Feldman v. Fox, 112 Ark. 223, 226, we said: "If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter of the original one." Again, "Now, the parties to a contract may, by new agreement, change the terms thereof, and the mutual undertakings will support the new contract."

Here C. C. Aylor had no title to the crops grown by the appellant on the Aylor place. As the landlord, he only had a lien upon such crops for his rent. Therefore, when appellant agreed to surrender the crops he did something that he was not required to do under his contract to pay a stipulated sum for rent, and the testimony was sufficient to warrant a finding that the parties had entered into a new contract by which the rent note was to be satisfied as per the terms of the new agreement. See, also, Horton v. Thompson, 124 Ark. 545, as to the sufficiency of the consideration.

For the error in giving the instruction the judgment is reversed and the cause will be remanded for a new trial.

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2.

KROMER V. CENTRAL COAL & COKE COMPANY.

Opinion delivered May 7, 1917.

APPEAL AND ERROR-NECESSITY FOR MOTION FOR NEW TRIAL.-Where a case is heard on evidence before the court which it is necessary to bring into the record by a bill of exceptions, there must be a motion for a new trial, setting up and assigning the grounds of error upon which the motion is predicated in order to give the court which tried the case, an opportunity to review and correct those errors. APPEAL AND ERROR-ABSENCE OF MOTION FOR NEW TRIAL.-Where the record before this court on appeal does not show that a motion for a new trial was filed and passed upon by the trial court, there is nothing that this court can review.

Appeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge; affirmed.

The appellant pro se.

1. Argues the merits of the cause, but the court does not pass upon them.

Oglesby, Cravens & Oglesby, for appellee.

1. The transcript shows that defendant filed no motion for a new trial and the judgment must be affirmed. 26 Ark. 536; 27 Id. 37; 35 Id. 536; East v. Cotton Oil Co., 126 Ark. 462.

WOOD, J. Appellant obtained a judgment by default against the appellee July 15, 1915, for $86.00 and costs. On July 10, 1916, appellee filed its motion to set aside the judgment obtained against it by default at a former term, setting up various grounds. The record recites: "Upon the hearing of the foregoing motion the following testimony was introduced by plaintiff and garnishee, which was all the testimony that was introduced in said proceedings, towit:" Then follows the testimony which was preserved by the bill of exceptions, consisting of record entries and documentary evidence, showing proceedings before the circuit court in the case of John Kromer, plaintiff, against John Schultz, defendant, in which the Central Coal & Coke Company was made a party as garnishee. After this testimony is the following recital

in the bill of exceptions: "There was no other evidence before the court and after hearing argument of counsel for both parties the court sustains the motion of the garnishee and sets aside the judgment rendered heretofore against the garnishee on the 15th day of July, 1915, to which action of the court the plaintiff at the time saved his exceptions and prayed an appeal to the Supreme Court of the State of Arkansas and the same was granted and the plaintiff given ninety days from the said 25th day of July, 1916, to prepare and file his bill of exceptions."

There is no entry in the judgment roll proper nor in the bill of exceptions brought into the record showing that the appellant moved the court for a new trial, setting up therein his assignments of error.

Where a case is heard on evidence before the court which it is necessary to bring into the record by a bill of exceptions, there must be a motion for a new trial, setting up and assigning the grounds of error upon which the motion is predicated in order to give the court which tried the case an opportunity to review and correct those errors. Where the record before this court on appeal does not show that a motion for a new trial was filed and passed upon by the trial court, there is nothing that this court can review. Steck v. Mahar, 26 Ark. 536; Merriweather v. Erwin, 27 Ark. 37; Lambert v. Killian & Prewitt, 27 Ark. 549; Young v. King, 33 Ark. 745; Farquharson v. Johnson, 35 Ark. 536. See, also, Independence County v. Tomlinson, 93 Ark. 382.

Such being the state of the record here, it must be presumed that the judgment of the trial court is correct, and it is therefore, affirmed.

1.

2.

3.

REAVES V. DAVIDSON.

Opinion delivered May 7, 1917.

DEEDS CANCELLATION-INSANITY.-In order to avoid a deed on the ground of insanity in the grantor, it must be shown that the grantor was incapable of exercising a reasonable judgment in regard to the matter involved in the conveyance. In order to invalidate the deed, the insanity must be such as to disqualify the grantor from intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.

DEEDS

AVOIDANCE-INSANITY-RESTORATION

OF CONSIDERATION.

A deed made by an insane person may be set aside without a restoration of the consideration paid by the grantee.

LIMITATIONS-BURDEN OF PROOF DISABILITY OF COVERTURE.— The burden of proof is upon one who pleads the statute of limitations, but the burden is upon one who seeks to avoid a plea of the statute by a plea of the disability of coverture.

4. DEEDS INSANITY OF GRANTOR SUIT ΤΟ AVOID DISABILITY OF HEIRS LIMITATIONS.-In an action to avoid a deed on the ground of the insanity of the grantor, the plaintiffs father, held, under the evidence that certain of the plaintiffs were barred from maintaining the action by limitations.

5.

6.

LACHES WHAT CONSTITUTES.-Laches is not merely delay, but delay working to another's disadvantage.

DEEDS ACTION TO SET ASIDE-INSANE GRANTOR.-The action of the heirs of an insane grantor, to set aside a deed executed by him, held not barred by laches.

Appeal from Izard Chancery Court; George T. Humphries, Chancellor; reversed.

Hanley & Godwin, Rhoton & Helm and Gardner K. Oliphint, for appellants.

1. There was no tender or return made of the consideration and appellees can not successfully maintain this suit without having done so. 25 Ark. 199, 204; 17 Id. 606; 15 Id. 286-293; 20 Id. 424; 31 Id. 364, 376; 39 Id. 293; 52 Id. 293; Ib. 150; 96 Id. 265; 5 Ala. 604; 99 Id. 281; 85 Cal. 522; 73 Tex. 619; 34 Kan. 8; 7 Pac. 584; 57 N. E. 770; 83 Id. 747; 58 N. W. 852; 56 Am. Dec. 561; 25 S. W. 359.

2. Appellees were barred by laches and equitable estoppel. Kirby's Digest, § 5075; 122 Ark. 530; 99 Id.

480; 81 Id. 352; 121 Id. 613; 15 Id. 286; 103 Id. 259; 118 S. W. 118; 18 Ch. Div. 560-577; Eaton on Equity, Ch. 3; Kirby's Digest, § 734; 51 N. H. 287; 69 Md. 572; 100 U. S. 578; 59 Pa. 214; 6 Vt. 174; 25 Pa. 468; 72 Ill. 500; 69 Mo. 642; 26 N. J. Eq. 128; 120 Ark. 249, etc.

3. The allegation as to inadequacy of consideration is not sustained by the evidence. The consideration was adequate and more than the land was worth. 86 Ark. 460-4; 48 N. H. 133; 37 N. C. 456; 14 R. C. L. 583.

4. Where a contract with an insane has been entered into in good faith and without fraud or imposition, for a fair consideration, without notice of the infirmity, and before an adjudication of insanity, it will not be set aside unless the parties can be restored to their original position. 81 Ind. 433; 42 Am. Rep. 142; 34 Kans. 87, 7 Pac. 584; 37 N. J. L. 108, 18 Am. Rep. 716; 85 Vt. 488, 82 Atl. 837, Ann. Cas. 1914 D 865 and note; 42 L. R. A. (N. S.) 342; 6 Eng. Rul. Cas. 71 and note. See also 88 Md. 368; 41 Atl. 908; 42 L. R. A. 745.

5. Joe P. Davidson was not insane; he had mental capacity to comprehend the nature of his act at the time. 19 Ark. 533, 550; 49 Id. 367; 19 Id. 547; 107 Id. 468; 114 Id. 128; 121 Id. 498; 100 Id. 565; 96 Id. 265.

6. Incompetent testimony was admitted. 124 Ark. 74, 84. It was too remote. 108 Id. 530. The probate court found him sane. 6 Enc. Dig. Ark. Rep. 293; Buswell on Insanity, Ch. 8, p. 216; 51 N. Y. 378; 6 Gray 279; Ridgway 204; 19 Ark. 533. The burden was on appellees to show insanity. 31 Ark. 306; 97 Ala. 731. See 19 Ark. 533 and 119 Id. 466.

7. Testimony as to conversations with Joe P. Davidson after the execution of the deed was competent. 123 Ark. 161; 37 Id. 200; 122 Id. 227. The trade was not unwise or improvident. 27 Ark. 116; 73 Id. 170; 119 Id. 466.

8. The decree should be modified as to improvements, rents and taxes. Kirby's Digest, § § 2754-7; 122 Ark. 530; 184 S. W. 399.