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(134 Ark. 380)

BROWN V. BROWN et al. (No. 10.) (Supreme Court of Arkansas. May 27, 1918.) 1. WILLS 88(4)-DEED OR WILL-DEPOSIT FOR DELIVERY AFTER DEATH.

A deed deposited by grantor with a third person, to be delivered after grantor's death, no dominion or control over it being reserved, is not testamentary, but effective as conveyance as of date of deposit.

2. DEEDS 65-ACCEPTANCE FOR INFANT.

Acceptance of deed to infant by person with whom grantor deposited it to be delivered to grantee after grantor's death is sufficient. 3. DEEDS 208(1)-DELIVERY-EVIDENCE.

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5. DEEDS 208(1)-DELIVERY-SUFFICIENCY OF EVIDENCE.

$1,500. In December, 1914, the same parties executed another mortgage on the lands to the same creditor to correct a mistake made in the description of the lands in the first mortgage. It is also shown in behalf of the plaintiff that a short time before T. J. Brown died in the fall of 1915, he attempted to exchange the lands in controversy for a smaller tract of land, and stated that he was going to use the difference in paying his debts. Several other witnesses testified that at various times for the last three years prior to his death, T. J. Brown claimed the lands in controversy as his own, and spoke of making some provision for his son Fred if he could dispose of these lands and pay his debts. On the other hand, Haley Brown,

Statement of deceased's widow that he had not authorized her to deliver his deed to their son, made in response to question of one who had come to see her about another matter, is not sufficient to overcome her positive testimony that he had delivered it to her for the son. his widow, testified that her husband on the 4. EVIDENCE 271(15) DECLARATION OF 3d day of June, 1912, executed a deed to the GRANTOR. Declarations of grantor in the absence of lands in controversy to his son Fred Brown; the grantee, after execution of deed, wherein he that she signed the deed with him, and they claimed the land, are inadmissible to defeat the acknowledged it before I. L. Franks on the deed. same day; that her husband handed the deed to her after its execution and acknowledgment, and said, "You know what to do with it;" that she knew what he meant because he had told her before what to do with the deed if she outlived him; that she was to see that Fred Brown got the deed; that she placed the deed along with a deed of her own in a big pocket book and kept it there until the death of her husband; that in a few days after her husband's death, she delivered the deed to Fred Brown; that her husband had been on a trade for a smaller place, and stated that he would make the trade if his son Fred was willing; that he finally abandoned the exchange of his property for the

Finding that deed had been delivered, held not against preponderance of evidence. 6. WITNESSES 139(5)-TRANSACTION WITH DECEDENT-"PARTY."

99

A mere nominal defendant in an action by administrator is not a party incompetent under Kirby's Dig. § 3095, to testify to transaction with decedent.

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[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Party.] 7. WITNESSES 193 CONFIDENTIAL COMMUNICATION-HUSBAND AND WIFE. Direction of husband to wife, made in presence of third person, to deliver to their son husband's deed to him, then deposited with her, is not a confidential communication, as to which, under Kirby's Dig. § 3095, subd. 4, she is incompetent to testify.

Appeal from Fulton Chancery Court; Geo. T. Humphries, Chancellor.

Suit by R. W. Brown, individually and as administrator, against Fred Brown and others. From adverse decree, plaintiff ap

peals. Affirmed.

R. W. Brown in his individual name and as administrator of the estate of T. J. Brown, deceased, brought this suit in equity against Fred Brown and the other heirs at law of T. J. Brown, deceased, and Haley Brown, widow of T. J. Brown, deceased, to cancel a deed executed by T. J. Brown to Fred Brown on the ground that the deed was testamentary in character and operated as a cloud on the title to said lands. T. J. Brown died in the fall of 1915, in possession of the lands which comprised 150 acres. The lands were worth at the time of his death about $2,500. At various times T. J. Brown in his lifetime had conveyed a portion of his lands to his other children.

other lands because their owner valued them

too highly.

I. L. Franks stated that he wrote the

deed, and that it was signed and acknowledged by T. J. Brown and his wife, Haley Brown: that Mr. Brown then handed the deed to his wife, saying, "This is Fred's: you know what to do with it." His wife took the deed. Interrogatories propounded to Fred Brown were attached to the complaint. In answer to them Fred Brown stated that he was not present when the deed was executed by T. J. Brown and Haley Brown on the 2d day of June, 1912; that after that day he had a conversation with his father about the execution of the deed: that his father said that he had given each of his other children a farm; that he gave this to him (Fred) to make him equal with the other children; that he learned of the deed a short time after its execution.

Haley Brown was the stepmother of Fred Brown, and the latter was a minor at the time of the execution of the deed. T. J. On the part of the plaintiff it was shown Brown had a life insurance policy for $2,000, that in July, 1909, Thos. J. Brown and Haley in which Fred was made the beneficiary. It Brown, his wife, executed a mortgage on was shown by several witnesses that T. J. these lands to secure an indebtedness of Brown had said that he made Fred the ben

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-64

eficiary in this policy in order that the amount of it might pay off the mortgage on the land in controversy and leave it free for Fred. It was shown by three witnesses that shortly after the death of T. J. Brown, Haley Brown stated to one of them that her husband had not authorized her to deliver the deed to Fred Brown. The chancellor found that the deed had been delivered, and dismissed the complaint for want of equity. The case is here on appeal.

the deed. This statement attributed to her was made in response to a question asked by one of the parties. They had come to see her about another matter, and it is likely that she either misunderstood the question or answered it without considering carefully her words. In any event her statement made under the circumstances testified to by the witnesses is not sufficient to overcome her positive testimony to the effect that the deed was delivered to her for Fred Brown. The

C. E. Elmore, of Mammoth Springs, for ap-record shows that T. J. Brown had given pellant. Lehman P. Kay and Ellis & Jones, all of Salem, for appellees.

HART, J. (after stating the facts as above). [1] It is earnestly insisted by counsel for the plaintiff that even if the testimony of Mrs. Haley Brown be considered competent, that the finding of the chancellor is against the preponderance of the evidence. It is settled in this state that if a deed, fully executed and so drawn as to convey a present title, is deposited by the grantor with a third person, with directions to deliver it to the grantee after the death of the grantor, and the grantor reserves no dominion or control over the deed, the deed is not an attempted testamentary disposition, but is effective as a conveyance of the title as of the date when the deed is deposited. Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C, 385.

[2] Tested by this rule, we think the finding of the chancellor is not against the preponderance of the evidence. Fred Brown was a minor at the time his stepmother accepted the delivery of the deed for him. The deed was for his benefit, and was sufficient to vest title in him. Staggers v. White, 121 Ark. 328, 181 S. W. 139.

[3-5] Mrs. Haley Brown testified that after the deed had been executed and acknowledged by her husband and herself that her husband handed the deed to her, saying that she knew what to do with it. In this she was corroborated by the person who wrote the deed and took her acknowledgment to it. When asked if she knew what her husband meant when he said that she knew what to do with the deed when he handed it to her, she replied that she did; that he had already told her that he wished it delivered to his son Fred after his death. It is true three witnesses testified that a few days after her husband's death she told them that her husband did not authorize her to deliver

each of his other children a farm, and that it was his intention to give the lands in controversy to his son Fred in order to place him on an equality with them. The testimony of the witnesses as to the declarations of T. J. Brown relative to the lands in controversy made after the execution of the deed to Fred Brown and in the absence of the latter is not admissible in evidence to defeat the deed to Fred Brown. Welch v. Welch, 200 S. W.

139. When all the facts and circumstances adduced in evidence are read together and considered in the light of each other, it cannot be said that the finding of the chancellor is against the preponderance of the evidence.

[6] It is next insisted that Mrs. Haley Brown is a party defendant to the suit, and that under section 3095 of Kirby's 'Digest she cannot testify against the plaintiff as to any transaction with or statements of T. J. Brown. Mrs. Haley Brown claims no interest in the lands in controversy. She is not interested in the result of the suit, and is only a nominal defendant. Hence the provisions of the section just referred to have no application to her, and do not render her testimony incompetent. Walden v. Blassingame, 197 S. W. 1170.

[7] Neither was the testimony incompetent as being a confidential communication as between husband and wife within the meaning of the fourth subdivision of section 3095 of Kirby's Digest. Her testimony did not relate to private conversations between herself and her husband in his lifetime. She testified as to a transaction which occurred in the

presence of a third person about a business matter which her husband directed her to do for him, and which could not be regarded in any sense as a private communication between husband and wife. The matter was not in its nature private, and could in no sense, under the circumstances, be termed the subject of confidential disclosure. Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563.

It follows that the decree must be affirmed.

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2. CANCELLATION OF INSTRUMENTS 45
BREACH OF LEASE-BURDEN OF PROOF.
Landlord seeking cancellation of lease on ac-
count of lessee's alleged breach of the covenants
had the burden of proving the breach.
3. LANDLORD AND TENANT

112(2)

FOR

FEITURE FOR BREACH-WAIVER. The landlord, by accepting the rent due for 1917, and permitting the tenant to continue in occupation during such year, waived his right to forfeiture of the lease for alleged breaches of covenants by the tenant in 1916.

Appeal from Pike Chancery Court; Jas. D. Shaver, Chancellor.

Action by F. B. Clement against M. C. Morris, wherein defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.

J. C. Pinnix, of Murfreesboro, and T. D. Crawford, of Little Rock, for appellant. Otis Gilleylen, of Glenwood, for appellee.

WOOD, J. On the 5th of May, 1915, B. F. Clement, of Glenwood, Ark., entered into a written contract with M. C. Morris, of Amity, Ark., by which Clement leased to Morris a farm near Glenwood called the Clement and Hughen farm, for a period of five years commencing December 1, 1915. The consideration was $500 per year, to be paid December 1, 1916, and annually thereafter.

any land being too wet to plow, and that he will sow each year at least 20 acres of cow peas wherever the lessee may direct; provided always that on any breach of any of the covenants by the lessee herein contained the lessor diately thereupon the said term shall absolutely determine."

may re-enter upon the said premises and imme

This action was brought by Clement against Morris to cancel the lease. Clement alleged that Morris had violated the contract in the following particulars: (1) He had subrented the premises without the consent and knowledge of Clement; (2) he had failed to cultivate the land according to the most approved course of husbandry, caused washes to start and greatly damage the land, and had allowed bushes and grass to grow on the cultivated land; (3) he had not kept the fences and houses in good repair; (4) he had let bushes and briars grow in the fence corners and ditches; (5) he had not planted cow peas on 20 acres as he agreed tivated land; (7) he had failed and refused to do; (6) he had pastured stock on the culand was due a balance of rent for that year to pay all the rent due for the year 1916, lease and Clement's ownership of the premof $87. Morris answered, admitting the ises, and denied all the other allegations. Morris set up that when he went into the possession of the land the premises were in bad condition and repair; that he had cleared and put in cultivation 25 acres of the land; that he had expended large sums of money in improving the same;. that Clement had agreed to furnish all material for building and repairing all buildings and fences, but had failed to do so. Morris then itemized, in his answer, the sums he had expended for labor and material, which amounted in the aggregate to $315.35. He alleged that he had entered into a written contract which was part of the consideration of the lease

The lease among other things, provided as by which Clement was to furnish at all times follows:

"The lessee during the said term will keep the said farmhouses and buildings and all things in and about the same and all fences, ditches, water courses, gates, fixtures, and things upon or about the said farm and lands in good condition and repair and without any alteration except such as the lessor shall approve of, and the lessee shall receive for his work the sum of $1 per day; that he will cultivate, manure, and manage the said farm and lands in a fair and proper manner according to the most approved course of husbandry, allowing no pasturing of tilled lands and preventing foulness from growing up in the fence corners and edges and lands in cultivation; that he will, at the expiration or sooner determination of the said term, yield up the premises aforesaid in such good condition and repair, and in fair and proper order as aforesaid unto the lessor; that the lessor and his agent, surveyors, and workmen may at all reasonable times during the said term enter upon the said premises to inspect the same and to cut and remove timber and other trees, and that he will not assign or underlet the said premises or any part thereof without the consent in writing of the lessor; that he will not plow or work

during the period of the lease not less than 25 milch cows and one male; that he (Morris) was to care for and feed the cattle and receive, for his labor and feed, all the milk and butter which the cows produced and one-half of the increase of the cattle; that the promises and representations of Clement were the material inducement to him (Morris) to enter into the lease; that Clement failed to furnish the cattle and by such failure he (Morris) was compelled to employ additional labor and had lost the entire use of the pasture as well as the products and increase of the cattle. He prayed that the complaint might be dismissed, and that he might have judgment over against Clement for his damages. He exhibited with the answer and also with his depositions a contract entered into by him and Clement executed on the 5th of May, 1915, which recited in substance that Morris agreed to furnish feed and care for in a good and proper man

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

leged by the appellant. It would not be useful as a precedent to discuss these issues of fact and would greatly extend this opinion to do so. We therefore deem it only necessary to announce our conclusion, which is that the appellant has not sustained the allegations of his complaint by a preponderance of the evi

ner, at his own expense, all the cattle with which he might be supplied by Clement during the term of the lease which was referred to in the contract of May 5, 1915, in consideration thereof Clement agreed to give Morris one-half of the increase of the cattle furnished him by Clement, which should be no less in number than 25 cows and one.dence. male. Morris was to receive the milk and butter obtained from any cow or heifer during the term of the contract. Clement an swered the cross-complaint, denying its material allegations and denying that the cat-lant testified that appellee owed him a baltle contract, exhibited with Morris' answer and cross-complaint, was any part of the written lease and alleged that same had been canceled by mutual consent.

In the written lease it is recited that: "The lessee doth hereby covenant with the lessor that he, the lessee, during the said term will keep the said farmhouses, et cetera; * * * in good condition and repair," et cetera; and do other things specified to be done by the lessee.

After enumerating these the lease recites: "Providing always that on any breach of any of the covenants by the lessee herein contained the lessor may re-enter upon the premises and immediately thereupon the said term shall absolutely determine."

[3] Among other grounds appellant alleged that the appellee had failed to pay the rent for the year 1916, in that he owed a balance of $87 on the rent for that year. The appel

ance of $83.82 for the year 1916. But the appellee testified that he had paid this rent by clearing land under a contract which he introduced in evidence under the express terms of which the payment for the clearing was to be applied on the rent for the year 1916. Appellant contends that the clearing was not done according to the contract and was not satisfactory, but he did not notify the appellee of that fact as shown by the testimony of the appellee on the first of December, 1916, when the balance of the rent was due. If appellant intended to insist on the forfeiture of the lease for the alleged breach of contract in not paying the balance

In Winn v. State, 55 Ark. 360, 18 S. W. 375, due on the rent for the year 1916, he should we held, quoting syllabus:

"Where a tenant stipulates to make certain improvements within a designated time, and in case of failure to do so agrees to forfeit his lease, the stipulation is a condition upon breach of which the landlord is entitled to re-enter."

have so notified the appellee at the time this rent was due. Instead of doing this he permitted appellee to continue to occupy the premises for another year and accepted the rent for that year. The proof on the part of the appellee tends to show that at the time

The doctrine there announced is applicable the present suit was instituted against him he

here.

[1] The provisions above quoted from the written lease, specifying the things that Morris was required to do, and stipulating that upon a breach of any of the covenants Clement might re-enter upon the premises and that immediately thereupon the term of the lease should cease, constitute conditions subsequent upon a breach of which by Morris the lease terminated. Appellant in his complaint set forth seven conditions which he

alleged were broken by the appellee and constituted a forfeiture of the latter's contract. The chancellor made a general finding to the effect that the allegations of the complaint were not supported by the evidence.

[2] The burden of the proof was upon the appellant to establish the alleged breaches of contract upon the part of the appellee which would constitute a forfeiture and entitle him to the relief sought. It was purely an issue of fact as to whether or not the appellee had failed to comply with the different conditions which the appellant alleged would entitle him to have the lease forfeited. We have examined the testimony in appellant's abstract adduced by the appellant to sustain the allegations of his complaint, and also the testimony adduced by the appellée to rebut the testimony of appellant and to show that he had

had expended the sum of $1,500 in the purchase of stock and farming implements, for the purpose of cultivating the land in controversy.

In Friar v. Baldridge, 91 Ark. 137, 120 S. W. 991, we said:

"It is a well-settled principle that equity abhors a forfeiture and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived."

In Little Rock Granite Co. v. Shall, 59 Ark.

409, 27 S. W. 562, we quoted from Mr. Pomeroy as follows:

"If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.”

If it be conceded that appellee had breached the conditions of the lease by the failure to pay the rent for the year 1916 and by other alleged breaches occurring prior to that time, the appellant waived the forfeiture, if any, by permitting the appellee to continue to occupy the premises for the year 1917, and accepting the rent for that year.

We are convinced after a careful consideration of the evidence that the decree of the chancellor is in all things correct, and it is

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JURIES FROM AUTOMOBILE-INSTRUCTIONS-
CONTRIBUTORY NEGLIGENCE.

In such action instructions, excluding consideration of the issue of plaintiff's contributory negligence and authorizing a finding for him regardless of such contributory negligence, were objectionable.

7. MUNICIPAL CORPORATIONS 703(1)-IN-
JURY FROM AUTOMOBILE
FOREIGN STATUTE.

NEGLIGENCE

Where such injury occurred in Texas, the Texas statute (Acts 1917, p. 476) § 7, declaring it to be the duty of the driver to give a signal "whenever necessary as a warning of danger," and prohibiting the giving of a signal "at other times or for other purposes," and section 16, imposing the duty of ordinary care for the protection of other persons on the highway, did not change the law of Arkansas so far as applicable to the facts of the case.

MCCULLOCH, C. J. The plaintiff, W. F. Buffington, instituted this action in the circuit court of Miller county to recover damages on account of injuries alleged to have been sustained through the negligence of defendant, the Texas Motor Company. The charge of negligence is that one of the officers of defendant backed a car out of a garage into a public street in the city of Texarkana and knocked the plaintiff down, thereby inflicting serious injuries to the person of the latter. It is charged that the automobile was backed out into the street at a high rate of speed without any warning signal being sounded and without any effort on the part of the driver to ascertain the presence of persons in the street. The defendant denied the alleged act of negligence, and asserted that plaintiff's injuries, if he received any at all, were caused by his own act of negligence in attempting to cross the street in the middle of the block and in failing to exercise ordinary care to prevent the car from striking him. The trial of the case before a jury resulted in a verdict in favor of the plaintiff, awarding a very substantial amount of damages.

The collision occurred on State street in

Texarkana, Tex., at a point in the middle of a certain block where an automobile garage fronts upon the street. The car driven by Anthony, one of the officers of defendant corporation, was backing out of the entrance of the garage when the rear end of the car or the rear fender struck plaintiff and knocked him down as he was crossing the street. There is a conflict in the testimony as to whether the machine was backed out of the garage or merely backed out of the entrance. The plaintiff testified that when he started across the street he looked in each direction, but could not see any car, and his statements, if believed, would warrant the conclusion that the car was inside of the garage at that time. On the other hand the testimony adduced by the defendant was to the effect that the car did not enter the garage at all, but was turned into the entrance for the purpose of obtaining a supply of gasoline and was backed a few feet in order that the nozzle of the gasoline hose could be connected with the tank of the car. Plaintiff's own testimony was, in substance, that he turned diagonally across the street at a point near the entrance of the garage and looked up and down the

street for automobiles and other vehicles, and that when he got near the middle of the Appeal from Circuit Court, Miller Coun- street the car driven by defendant's agent ty; Geo. R. Haynie, Judge.

Action by W. F. Buffington against the Texas Motor Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

Webber & Webber, of Texarkana, for appellant. G. G. Pope and Will Steel, both of Texarkana, for appellee.

struck him and knocked him down. He testified that he did not see the car until he was struck by it. The garage where the injury occurred was owned and operated by a Mr. Anderson, and was known as Anderson's Garage. There appears to have been no connection between the defendant company and the Anderson Garage, and Anthony, the driv

For other cases see same topic and KEY. NUMBER in all Key-Numbered Digests and Indexes

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