(252 S.W.) [2] According to these tests, there is no escape from the conclusion that if Mr. Choate went to the premises merely as a stockholder for the purpose of looking over the subject-matter of his investment, he was a mere licensee, and we think that this state of facts is shown by the undisputed evidence. In all of our decisions on the subject -and there are many-we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered. St. L., I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489, 64 S. W. 347; Ark. & La. Ry. Co. v. Sain, supra; C., R. I. & P. Ry. Co. v. Payne, 103 Ark. 227, 146 S. W. 487, 39 L. R. A. (N. S.) 217; St. L, I. M. & S. Ry. Co. v. Pyles, 114 Ark. 218, 169 S. W. 799; Alfrey Heading Co. v. Nichols, supra; C., R. I. & P. Ry. Co. v. Russell, supra; Mitchell v. Ozan-Graysonia Lumber Co., 151 Ark. 6, 235 S. W. 44. It is unnecessary to discuss any question of negligence of appellee in fastening the belt together, for since it is found that appellant's intestate was there as a licensee and that no affirmative act of negligence was committed after he went upon the premises, there is no liability. The court was therefore correct in directing the verdict, and the judgment is affirmed. DAWSON V. MAYS. (No. 31.) (Supreme Court of Arkansas. June 11, 1923.) 1. Dower 53-Divorced wife held not widow entitled to dower though attempting to have decree set aside. Where one seeking allotment of dower and other allowances, claiming to be decedent's widow, was shown to have procured a default judgment of divorce against decedent some time prior to a date on which decedent's dead body was found, which judgment she attempted to have set aside on the ground that it was impossible to determine whether or not he was dead at the time the divorce decree was rendered, the probate court did not err in denying her claim to dower on the ground that she was not decedent's widow, 2. Dower dower. McCULLOCH, C. J. Appellee's intestate, John Dawson, came to his death on or about June 20, 1921, near the city of Helena, in Phillips county, where he resided. He lived on a house boat, and his partially decomposed body was found in the boat. Letters of administration on the estate were issued to appellee by the probate court of Phillips county, and appellant, claiming to be the widow of said decedent, presented her petition for allotment of dower and for other allowances authorized by statute for the benefit of a widow. The probate court denied the claim of dower and other allowances, and on appeal to the circuit court a judgment was rendered there denying appellant's claim. The case was heard in the circuit court on an agreed statement of facts, from which it appears that appellant and John Dawson intermarried in the year 1902 and lived together as husband and wife until April, 1917, when they separated, and appellant took up her residence in the city of Little Rock. In April, 1921, appellant instituted in the chancery court of Pulaski county an action against said decedent, John Dawson, to procure a decree for divorce on the ground of desertion. Dawson was summoned, but made default, and the chancery court rendered a decree in appellant's favor on May 19, 1921, dissolving the bonds of matrimony. The de52-Divorced wife not entitled to cree contained a formal recital to the effect A divorced wife is not entitled to dower. 255-Allowance in lieu of dower must be made in divorce proceeding. 8. Divorce An allowance in divorce proceedings in lieu of dower must be made in that proceeding, and cannot be made subsequently. that "all property not disposed of at the com- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes such further orders and proceedings as may be necessary to ascertain definitely, and enforce the rights of the parties hereto in the property herein referred to." There was no reference in the decree to an allowance of alimony or an allowance in lieu of dower. The partially decomposed body of John Dawson was found, as before stated, in his house boat in Phillips county, and the agreed statement of facts recites that Dawson came to his death on or about June 20, 1921. There were no children of the intermarriage between John Dawson and appellant, and she claims one-half of the estate as dower. On August 3, 1921, appellant filed in the Pulaski chancery court her petition asking that the decree of divorce theretofore entered be set aside and the action dismissed. It was alleged that decedent left his mother as his only heir at law, who was a nonresident, and a warning order was issued and published warning her to appear in the proceeding. The ground set forth in the petition to set aside the decree was that the body of decedent was so decomposed at the time it was discovered that it was impossible to determine whether or not he was dead at the time the divorce decree was rendered. The court heard the petition on September 28, 1921, which was during the same term of court at which the original divorce decree was granted, and entered an order setting aside and vacating the decree for divorce and permitting the plaintiff (appellant) to take a nonsuit. Appellant thereupon filed her petition, as before stated, in the Phillips circuit court. [1-3] We are of the opinion that the probate court and the circuit court on appeal were correct in denying appellant's claim that she was the widow and entitled to dower in the estate of John Dawson. A divorced wife is not entitled to dower. Wood v. Wood, 59 Ark. 441, 27 S. W. 641, 28 L. R. A. 157, 43 Am. St. Rep. 42; Kendall v. Crenshaw, 116 Ark. 427, 173 S. W. 393; Gwynn v. Rush, 143 Ark. 4, 219 S. W. 339. There was no application in the divorce proceeding for an allotment of property in lieu of dower pursuant to statute (Crawford & Moses Digest, § 3511), and the court rendered no decree on that subject. The formal reservation was with reference to separate property, and there was none shown to have been owned by appellant. Such an allowance in lieu of dower must be made in the divorce proceeding, and cannot be made in a subsequent proceeding. Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6. It appears from the record that the parties were divorced by a valid decree, which could not be vacated at the instance and request of the party who obtained it after the death of the other party. The prevailing rule of law on this subject is stated as follows: "The doctrine followed with practical uniformity is that a party who has obtained a divorce is precluded from disregarding it and attempting by further proceedings to gain the same or different relief, on the principle, mainly, that the first divorce must be held to dissolve the relation of husband and wife, and also on the ground that a person who had invoked the jurisdiction of a court may not disregard or attack the decision." Note (p. 301) to case of Karren v. Karren, 60 L. R. A. 294. [4, 5] A court of record has inherent power to set aside its own judgments or decrees. during the term at which the same were rendered; but a party to an action who has obtained such a decree may not be in a situation to ask for or to receive the benefit of the annulment of the former judgment or decree, and such is the present case, for the plaintiff by her own voluntary act procured a decree for divorce, and after the death of her husband she cannot change her own status with reference to her former husband by causing the decree to be set aside and her status as wife re-established. The question involved is not one of the power of the court, but as to the right of appellant to thus change her status after the death of her former husband from whom she has secured a decree for divorce. The judgment is therefore affirmed. FIRST NAT. BANK OF MARKED TREE v. FARMERS' & MERCHANTS' BANK OF MARKED TREE. (No. 37.) (Supreme Court of Arkansas. June 11, 1923.) 1. Chattel mortgages 169-Refusal of mortgagee to pay over proceeds from sale of cotton to other mortgagee held a conversion. Where the mortgagee of cotton joined with the mortgagee of the share cropper of the same cotton in an agreement for its private sale, and to apply the proceeds to the respective mortgages, which by agreement was a foreclosure of the mortgage at private sale, the refusal of one mortgagee to pay the proceeds from the sale of the other mortgagee's share was a conversion of such share, rendering it liable therefor. 2. Judgment 673-Judgment in former suit over same subject-matter held not res adjudicata against plaintiff who withdrew as intervener therein. Where plaintiff herein intervened in a former suit involving the same cotton and parties, but was permitted to withdraw without prejudice and instituted the instant suit before the former judgment was rendered, that judgment did not settle the issues as to him nor preclude him from recovering for conversion of the cotton by defendant, garnishee in the for mer suit. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S.W.) 3. Estoppel 91(1)—Garnishee falling to ob-| get a letter from Causey to the Farmers' & ject to dismissal of Intervention cannot com- Merchants' Bank confirming the agreement plain of court's action in dismissing without to pay over the proceeds from Rushing's inprejudice. terest in the sale of the cotton to the FarmDuBard testified that he never agreed for Rushing to ship or sell the cotton. In a garnishment proceeding, where inter-ers' & Merchants' Bank. vener was permitted to withdraw without prejudice and without objection by the garnishee, which permitted a default judgment to be taken against it, in subsequent suit in which garnishee was defendant and against whom judgment was had for conversion of cotton, he cannot complain of the court's action in dismissing the intervention without prejudice on the ground that he has to pay both the present plaintiff and plaintiff in the garnishment proceeding. The above is a brief statement of the testimony of J. D. DuBard and O. A. Rushing. According to the testimony of C. E. Causey, he was the cashier of the First National Bank, and the treasurer and secretary of the Retail Lumber Company. A number of officers of the First National Bank are also officers of the Retail Lumber Company. Appeal from Poinsett Chancery Court; Causey shipped the cotton in question for Archer Wheatley, Chancellor. Suit by the Farmers' & Merchants' Bank of Marked Tree against the First National Bank of Marked Tree and another, in which the Retail Lumber Company intervened. From decree for plaintiff, defendant named appeals. Affirmed. On the 8th day of November, 1921, the Farmers' & Merchants' Bank of Marked Tree brought this suit in equity against the First National Bank of Marked Tree and O. A. four Rushing to foreclose a mortgage on bales of cotton executed in its favor by O. A. Rushing, and to recover judgment against the First National Bank of Marked Tree in the sum of $123.13 for the proceeds received by it from the sale of said cotton. The Retail Lumber Company was allowed to intervene and claim the $123.13 under and by virtue of a suit against O. A. Rushing for an account due it by him and a garnishment proceeding against the First National Bank of Marked Tree. the First National Bank and sold it. That Causey denied that he made an agreement with J. D. DuBard to pay over the proceeds of Rushing's interest in the cotton to the Farmers' & Merchants' Bank. He admitted that Rushing asked for an order that the proceeds be paid to his bank, but that he had refused to do so. It also appears from the record that the Retail Lumber Company brought suit against O. A. Rushing to recover $112.71, due it on account, and caused a writ of garnishment to be issued and served upon the First National Bank. The Farmers' & Merchants' Bank was allowed to intervene in said action, and before judgment was rendered in the circuit court, it was allowed to withdraw its claim as intervener. So it will be seen that the proceeds arising from the sale of the same cotton was involved in both suits. the accrued interest. Judgment was rendered by default against the defendant Rushing, and also against the garnishee, First National Bank. The judgment recited that the petition of the intervener, Farmers' & Merchants' Bank, had been withdrawn. It appears from the record that on the 1st day of November, 1920, O. A. Rushing borOn the 16th day of May, 1922, judgment rowed $1,800 from the Farmers' & Merchants' Bank and gave a chattel mortgage was rendered in the circuit court in faon certain cotton grown by him to secure the Vor of the Retail Lumber Company against indebtedness which was evidenced by his O. A. Rushing in the sum of $112.71 with promissory note. During the month of December, 1920, O, A. Rushing told J. D. Du Bard, the cashier of the Farmers' & Merchants' Bank, that C. E. Causey, cashier of the First National Bank, had requested that he be permitted to ship the mortgaged cotton and sell it in the name of the First National Bank. He stated further that the First National Bank held a mortgage on the interest in the cotton belonging to J. S. Roy, a share cropper of O. A. Rushing. Rushing told Causey that his interest in the cotton was mortgaged to the Farmers' & Merchants' Bank and that he would consent for the First National Bank to ship and sell said cotton provided that it would turn over his share of the proceeds to the Farmers' & Merchants' Bank. Mr. Causey agreed to J. G. Waskom, of Marked Tree, for appelthis. DuBard told Rushing that this agree-lant. ment would be satisfactory to the Farmers' Another order of the court showed that the petition of the intervener, Farmers' & Merchants' Bank, was withdrawn without prejudice. On the 28th day of September, 1922, a decree was rendered in the chancery case in favor of the Farmers' & Merchants' Bank against the First National Bank for $123.13. To reverse that decree, the First National Bank has duly prosecuted an appeal to this court. C. T. Carpenter, of Marked Tree, for ap & Merchants' Bank and asked Rushing to pellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the Retail Lumber Company against First National Bank, garnishee, settles the issues and precludes the Farmers' & Merchants' Bank from recovering against the First National Bank in the chancery case. That would be true if that suit had proceeded to judgment before the Farmers' & Merchants' Bank had been allowed by the court to withdraw from it. The record shows that its intervention in that suit was dismissed without prejudice, and that the present suit was instituted by it against the First National Bank on the same cause of action before HART, J. (after stating the facts as the judgment of the circuit court in favor of above). It appears from the record that the Farmers' & Merchants' Bank had a valid mortgage on the undivided interest of O. A. Rushing in certain cotton raised by him, and that the First National Bank had a mortgage on the interest of J. S. Roy, a share cropper of Rushing, in the same cotton. [1] One of the grounds relied upon by appellant for a reversal of the decree is that appellee had given Rushing permission to sell the cotton and had thereby lost its mortgage lien. Both Rushing and DuBard, the cashier of the Farmers' & Merchants' Bank, denied that that bank gave Rushing judgment was rendered in the circuit court permission to sell the mortgaged cotton. They both testified that the Farmers' & Merchants' Bank gave the First National Bank permission to sell the cotton, because they both had separate mortgages on separate undivided interests in the cotton. It was understood that when the cotton was sold Rushing's interest in the proceeds should be turned over to the Farmers' & Merchants' Bank and applied towards the payment of his mortgage indebtedness to that bank. in favor of the Retail Lumber Company against the First National Bank as garnishee. [3] It is insisted by counsel for appellant that, if appellee is allowed to recover against it in this suit, it will have to pay twice. That is true, but the fault is with appellant. As we have just seen, the intervention of appellee in the circuit court was withdrawn without prejudice, and the present suit was begun in the chancery court before It is true that the cashier of the First the case in the circuit court came on for National Bank contradicted this testimony; hearing. Notwithstanding the pendency of but the chancellor found in favor of the the suit in the chancery court, the appellant Farmers' & Merchants' Bank on this point, allowed the Retail Lumber Company to take and it cannot be said that his finding is judgment against it by default in the circuit against the preponderance of the evidence. court. No doubt this was done with the deHence it became the duty of the First Na-sire to favor the Retail Lumber Company, tional Bank to turn over to the Farmers' & because the officers in that company and in Merchants' Bank the sum of $123.13, which the First National Bank were practically the was the amount received by it from the sale same. The First National Bank had a right of Rushing's interest in the mortgaged cot- to favor that company in any way it could ton. The Farmers' & Merchants' Bank and the legitimately do so, but it had no right to First National Bank each had a mortgage on favor it to the legal prejudice of the Farman undivided interest in the same cotton. The ers' & Merchants' Bank. The latter had the parties had a right to agree to a private sale right by permission of the court, to withof the mortgaged cotton and to apply the pro- draw from the suit in the circuit court withceeds of the sale to the mortgage indebted-out prejudice and to institute a new suit on ness respectively of Rushing and Roy. This, its own account on the same cause of acby agreement of the parties, amounted to a tion against the First National Bank. If foreclosure of the mortgage at private sale, and the refusal of the First National Bank to pay the proceeds arising from the sale of Rushing's interest in the cotton to the Farmers' & Merchants' Bank amounted to a conversion of the same by it and made it liable therefor to the Farmers' & Merchants' Bank. In short, the refusal of the First National Bank to pay over to the Farmers' & Merchants' Bank the amount received by it from the sale of Rushing's interest in the cotton amounted to a conversion of the proceeds and rendered it liable to the Farmers' & Merchants' Bank therefor. [2] It is next insisted by counsel for appellant that appellee, having been allowed to intervene in the suit in the circuit court filed by the Retail Lumber Company against O. A. Rushing as defendant and the First National Bank as garnishee could not subsequently withdraw from that suit; and that the latter bank wished to avoid payment twice, it should have defended the garnishment suit in the circuit court and not have allowed judgment to be rendered against it by default. Not having done so, it took the chance of the Farmers' & Merchants' Bank's recovering the proceeds arising from the sale of Rushing's interest in the cotton in the chancery court. Appellant made no objection to the appellee dismissing its intervention in the suit in the circuit court, and is not now in an attitude to complain of the court's action in allowing the dismissal without prejudice. In this connection it may be said that no objection was made by appellant to appellee's bringing suit against it for the conversion of the mortgaged cotton in the chancery court. The decree of the chancery court win therefore be affirmed. (252 S. W.) FIRST NAT. BANK v. HERRING. (No. 27.) (Supreme Court of Arkansas. June 4, 1923. Rehearing Denied July 2, 1923.) 1. Fraudulent conveyances 299(12)-Evl. dence held to require finding that deed from husband to wife was made while insolvent and without consideration. In an action to set aside as fraudulent certain deeds made by defendant to his wife after an indebtedness had accrued, evidence held to require a finding that the transfer was made while defendant was insolvent and was without consideration. 2. Pleadings 377-Unnecessary to prove Insolvency, alleged and not denied. In an action to set aside as fraudulent a deed made by defendant to his wife after an indebtedness had accrued, and which released a vendor's lien retained in a deed from defendant to his son, it was unnecessary to prove the insolvency of the son as a prerequisite to recovery, as his insolvency was alleged, and not denied. Seven thousand dollars of the money was borrowed to pay the purchase price of the Sam Mayes place, and the balance to cover advances which had been made to buy mules. The title to the Mayes place was taken in the name of V. I. Herring. The $9,500 note, as well as the renewal note for $8,367.93, was signed by appellant and V. I. Herring. The mortgage given to secure the respective notes on the Mayes place was signed by V. I. Herring and his wife. In addition to this mort Appeal from Johnson Chancery Court; W. gage, appellee transferred notes in the sum E. Atkinson, Chancellor. Suit by the First National Bank against J. V. Herring. Decree for defendant, and plaintiff appeals. Reversed and remanded, with instructions. of $3,000 to appellant, which he had taken in payment for mules, as collateral security for the payment of the notes. On December 28, 1920, appellee conveyed all of his real estate to his son, V. I. Herring, for an expressed consideration of $8,000; $1,000 cash and the balance on time, with a vendor's Patterson & Ragon, of Clarksville, for ap- lien for same retained in the deed. On the pellant. same day V. I. Herring conveyed said real J. J. Montgomery, of Clarksville, and Webb estate to his mother, Elizabeth C. Herring. Covington, of Ft. Smith, for appellee. The deeds were recorded immediately after execution. A short time after the deeds were delivered, appellee executed a deed to his wife, Elizabeth C. Herring, releasing the vendor's lien of $7,000 retained in the deed from appellant to his son. No present consideration passed upon the execution and delivery of either deed. HUMPHREYS, J. This is a suit in equity to set aside as fraudulent two deeds of date December 28, 1920, and to subject the real estate therein conveyed to the payment of a deficiency judgment in the sum of $4,377.81, obtained by appellant against appellee in a foreclosure proceeding in the chancery court According to the testimony of appellee, of Johnson county. The foreclosure proceed-his purpose was to vest title to said real esing was upon a renewal note of $8,367.93, dat- tate in his wife in satisfaction of various ed June 1, 1921, and secured by a mortgage sums she had advanced to him from time on the Sam Mayes place. The renewal note to time to use in his business. Concerning and mortgage represented a balance due up- the indirect manner of placing the title of on a $9,500 note and mortgage of date April the real estate in Elizabeth C. Herring, ap3, 1920, and due June 1, 1921. The $9,500 pellee said he was advised by Mr. Byington, note and mortgage evidence a loan from ap- an abstractor, of the method by which it pellant to appellee and his son, V. I. Herring, should be done. In a few days after the exobtained upon the following financial state-ecution of the deeds aforesaid, appellee transment of J. V. Herring, filed in writing with the appellant as a basis for credit: "For the purpose of procuring credit from time to time with you for my negotiable paper or otherwise, I furnish the following as a true and accurate statement of my financial condition on April 1, 1920, which may hereafter be considered as representing a true statement of my financial condition, unless notice of change: ferred his personal property, consisting largely of household goods, to his wife, being un. der the impression at the time that it was creditors from reaching it. The household necessary to do so in order to keep other goods, however, were exempt under the law. When appellee and his son renewed their note on June 1, 1921, they did not inform appellant that all the real estate included in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |