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son, which has not been overruled, and which the majority does not now seem disposed to expressly overrule. We did not overrule it in Bank of Midland V. Harris, 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, 1255, but, on the contrary we recognized its binding force as a precedent by distinguishing it from the one under consideration. I think it would be better to overrule Garnett V. Richardson in express words rather than to attempt to distinguish it from the present CaSe. /

There is a conflict in the testimony in this case, and the issues ought to have been Submitted to the jury.

(134 Ark. 571) PEMBERTON. v. BARKER et al. (No. 310.) (Supreme Court of Arkansas. April 22, 1918.)

1. VENDOR AND PURCHASER & 282 – REMEDIES OF WENDOR-DECLARATION OF LIEN. In suit by the vendor of land for temporary restraining order until he could have his claim for lien for the purchase money fixed upon the land, which he had sold to one defendant, and which the latter had sold to another defendant, both of which sales were made subject to the debt of $500 for the purchase money due from the vendor to his predecessor in title, where the vendor set up that since the sale made by the one defendant to the other he had been compelled to pay $172.97 on the note executed by him to his predecessor, and alleged that, under the terms of the sale from him to the one defendant and from the latter to the other defendant, he was entitled to have the same declared a lien on the land, his complaint contained facts constituting a cause of action, and demurrer was properly overruled. 2. JUDGMENT ©:704–RES, JUDICATA. Decree on the merits, on the issues joined in suit by the original vendor of land, in his favor against the buyer from him, was not an adjudication 0f the rightS 0f the buyer aS against one who bought from him. 3. JUDGMENT (6:713(1)—RES JUDICATA. A judgment rendered by a court of competent jurisdiction on the merits is a bar to any further suit between the same parties or their privies on the same cause of action. 4. VENDOR AND PURCHASER 6-285(3)—FoRECLOSURE OF LIEN-PRIORITY. In suit by the first buyer of land against the immediate and a remote purchaser from him, the court correctly treated the petition or complaint of the first buyer against the remote purchaser as for the sum claimed on the original action by the original vendor against the first buyer, and ruled properly in declaring the lien and directing sale of the land to be made to satisfy both the original vendor's lien and that of the first buyer, preserving in the distribution # the proceeds the priority of the original venOI".

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

Suit by J. C. Barker against H. W. Pemberton and another. From decree for complainant, defendant Pemberton appeals. Affirmed. \

Percy C. Goodwin, of Salem, for appellant.

W3CD, J. On December 18, 1915, E. T. Brown sold to J. C. Barker a certain tract

of land in Fulton county, Ark. Barker executed to Brown a note due December 1, 1916, in the sum of $500, and it was recited in the note that the same was “given for balance of purchase on the tract of land [describing the land], and that a lien is retained on said land until paid in full.” On the same day Brown executed a Warranty deed to Barker conveying him the land, and in the deed a vendor's lien was retained for the balance of the purchase money. On December 27th Barker sold the land to W. A. Cannon by warranty deed. On January 21, 1916, Barker paid to Brown on his note the sum of $128, and in April the sum of $42.97, making a total of $170.97 paid by Barker to Brown on the note. In November or December, 1916, Cannon sold the land to W. H. Pemberton. On the 28th Of February, 1917, Brown instituted Suit in the chancery court against Barker, Cannon, and Pemberton. Cannon and Pemberton being nonresidents, a Warning order Was iSSued, and P. C. Goodwin was appointed by the clerk of the circuit court to notify them of the Suit. On March 17th Goodwin waived the Service of notice by Brown to take depositions at Viola, Ark. On March 24, 1917, Barker waived the Service of a notice for the taking of depositions and the depositions of one Pardew, a partner of Barker in the mercantile business, was taken, and also the deposition of Brown, in which he testified that he had been paid on the note in suit the sum of $170. On the first day of the April term, 1917, of the chancery court, the court found that Barker had been summoned and had failed to demur, answer, or otherwise plead, and found that there was a balance due On the note executed by him to Brown in the sum of $377.58, and entered a decree against him for that sum, and declared the same a lien upon the land, and ordered the same sold to satisfy the amount of the decree, unless the same were paid in 60 days, and appointed M. C. Carter commissioner to execute the decree. On July 16, 1917, Barker presented to the chancellor in vacation his petition against the other parties, Cannon and Pemberton, Setting up that he was entitled to a Second lien on the land for the sum of $172.97, and asked that the commissioner be restrained from Selling the land under the decree of April 9, 1917, until his lien also could be declared against the land subject to the lien of E. T. Brown. The chancellor, in vacation, granted the temporary restraining Order. On the first day of the October term of the chancery court, 1917, Pemberton filed his demurrer to Barker's petition, which was by the court overruled, and to which ruling Pemberton duly excepted. On the 11th of October, 1917, Pemberton filed his answer, and on the same day the cause proceeded to trial. All the papers in the original suit Were offered and read in evidence by agreement Of all parties and Oral testimony WaS heard and by Order of the court was reduced to writing by the clerk and filed and made a part of the record. The court found that Barker Sold the land purchased of Brown to Cannon, and Cannon sold to Pemberton, charged with the lien of Barker to Brown; that after these sales Barker paid the sum of $172.97 on his note to BrOWn, for Which amount he had a junior lien, subject to the lien of Brown; and the COurt entered a decree in favor of Barker against Pemberton for the Sum of $172.97, and declared the same a lien upon the land, and directed that unless the amount Of the decree entered in favor of Barker be paid in 10 days, that the land be sold to satisfy the decree; and that the proceeds arising from the Sales, after deducting the costs of the suit, be applied first to the satisfaction of the decree in favor of Brown, and the remainder, if any, to be applied to the Satisfaction of the decree in favor of Barker. Pemberton appeals. [1] 1. The court did not err in overruling appellant's demurrer to the complaint of the appellee Barker. Barker was only seeking a temporary restraining order until he could have his claim for the lien On the land for the purchase money due him declared and fixed upon the land which he had sold to Cannon, and which Cannon had sold to Pemberton, both of which sales were made Subject to the debt of $500 for the purchase money due from Barker to Brown. Barker Set up that Since the sale made by him to Cannon and the Sale made by Cannon to Pemberton he had been compelled to pay the sum of $172.97 on the note executed by him to Brown for $500. He alleged that under the terms Of the COntract Of Sale from him to Cannon and from Cannon to Pemberton he was entitled to have this sum declared a lien upon the land. His complaint COntainS allegationS Which Set up facts Sufficient to constitute a cause of action in which he was entitled to the relief sought, and the demurrer was therefore properly OVerruled. [2, 3] 2. Appellant's plea of res adjudicata was likewise correctly overruled. The deCree at the former term in favor of BrOWn against Barker was on the merits and a final decree as betWeen Barker and Brown. But this decree on the issues joined by Brown and Barker was not an adjudication of the rights Of Barker as against W. H. Pemberton. The rule is well settled that a judgment rendered by a court of competent jurisdiction on the merits is a bar to any further suit between the same parties or their privies upon the same cause of action. 23 Cyc.

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

1106. But the rights of Barker to have a lien declared on the land against Pemberton subject to the prior lien of Brown, as We have Stated, Was not and could not With propriety have been made an issue in the suit betWeen BrOWn and Barker. While the deCree at the former term in favor Of Barker Was a final adjudication that Brown Was entitled to the lien On the land and a Sale of same to satisfy the debt due him by Barker, nevertheless the sale had not taken place When Barker filed his complaint for a temporary restraining Order and to have his lien declared against Pemberton. The court Still had jurisdiction over the cause in the matter of directing the Sale, and Of COnfirming and approving the same when made. [4] The court correctly treated the petition Or complaint Of Barker against Pemberton as for the sum claimed on the original action, and to have his lien for purchase money declared on the land. There was no error in the court's ruling in declaring such lien, and in directing the sale of the land to be made to satisfy both liens, but preserving in the distribution of the proceeds of the sales the priority of Brown. We find no error in the decree Of the court, and its judgment is therefore affirmed.

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W. C. Rodgers, of Nashville, for appellants. Thos. C. McRae, W. V. Tompkins, D. L. McRae, and C. H. Tompkins, all of Prescott, for appellee.

McCULLOCH, C. J. M. M. Mauney owned 40 acres of land in Pike county, Ark., which contained a deposit of Kimberlite or diamond-bearing dirt, and sold 30 acres of it to parties who organized a corporation knoWn as the Ozark Mining Company for the purpose of developing it. On April 3, 1912, Mauney entered into a contract With HoWard A. Millar, whereby he leased the remaining 10 acres to Millar for a period of 50 years for the purpose of having the Same developed and operated as a diamond mine. The 10 acres covered by the lease was known as the “Mauney Diamond Mine.” The Written contract recited that Mauney desired to have the property developed and worked, and that Millar Was a practical mining engineer, With considerable experience in testing Out deposits of Kimberlite, and was associated with business men of large means Who Would become interested in developing the mine. The undertaking was, on the part of the lessee, that he and his associates and assigns Would— “diligently and faithfully prosecute the work of development of said property as outlined herein in a scientific and practical manner and to begin operation within 30 days from April 10, 1912, by taking such preliminary steps towards the preparation of plans and purchase of machinery necessary to carry on the work in contemplation and to erect and install a modern washing and concentrating plant of African type within one year from April 10, 1912, and much earlier as can reasonably be done and in good faith and with diligence to begin washing for diamonds within one year from said 10th day of April, 1912, and as much earlier as can reasonably be done, and to treat and wash for the recovery and extraction of diamonds and other precious stones a minimum of 10,000 loads of material from the first described tract of land known as the Mauney diamond mine ‘property,’ during each and every year of this lease, and as much more as can reasonably be done.”

The last clause of the contract reads as followS:

“The lessees shall in no event cease work for a longer period than three months continuously unless a necessity therefor should arise by the act of God, or from contingencies beyond the control of the lessees or from physical or other conditions which are not the fault of the lessees and which could not reasonably be guarded against, but this clause of this lease shall not operate or be construed to release... the lessees from Washing and treating for diamonds as much as 10,000 loads of dirt every year, and as much more as can reasonably be done.”

The contract further proVided that the leSSOr Should receive aS his Share One-fourth Of the diamonds and other precious stones and minerals taken from the leased land, and that the leSSee Should receive the Other three-fourths, and that the output should be reported every three months and divided according to the terms of the contract. It also provided that the lessee Should fix the price of the diamonds extracted from the

mines, and that the lessor should have the privilege of taking over the whole of the output at that price, or that the lessor might fix the price and the lessee have the privilege of taking over at that price, and the amount divided. The lessee and his associates Subsequently organized a corporation known as the Kimberlite Diamond Mining & Washing Company, and assigned the lease contract to that concern. Still later the lease was assigned by the corporation above named to the original lessee, Howard A. Millar, and Austin Q. Millar and W. W. Wilder as trustees. The lessee and his assigns proceeded with preparation to develop the mine and expended approximately $100,000 in constructing the washing plant, tramroads, and other equipments for operating the mine. The attempt of the Ozark Mining Company to develop the other land into a diamond mine proved a financial failure, and the company went into bankruptcy. The lessee under the contract wth Mauney purchased the Ozark property and carried on development operations in connection with the development of the Mauney mine. No improvements were constructed, however, on the Ozark property, but dirt from that property was carried to the washing plant, which was constructed for the development of the Mauney mine. On April 11, 1913, Mauney instituted an action against the Kimberlite Diamond Mining & Washing Company as the holder of the lease contract to cancel the lease on the ground of fraud in procurement by the lessee; it being alleged that the lease was not entered into in good faith for the purpose of carrying it out, but that it was entered into with the fraudulent purpose of depreciating the value of the property so that the title in fee could be acquired, and that the leSSee had failed to comply with the contract. That case was instituted in the chancery court of Pike county, but was removed to the federal court, and upon final hearing a decree was rendered dismissing the complaint for want of equity. In April, 1914, Mauney instituted a second action against the lessee to recover possesSion of a lot Of diamonds Which had been mined from the land, and in the complaint alleged that the lease had been entered into by the lessee With the fraudulent intention of not complying with it, and that it was void from the beginning. That case was tried before a jury, and upon Special interrogatories submitted, which the jury answered, there was a finding that the lessee had not entered into the COntract With a fraudulent purpose, and had not failed to comply with the terms of the lease. Judgment was entered in favor of the leSSee, and that judgment Was, On appeal, affirmed by this court. 117 Ark. 633, 175 S. W. 402. M. M. Mauney died in the year 1915, and his wife, Bettie L. Mauney, who had joined in the lease contract, became the administratrix of the estate, and on May 11, 1915, she entered into a contract with the lessee for a diviSion of the stock of diamonds then on hand. The contract provided for an assortment and classification of the diamonds and a diviSion thereof according to the terms of the Original contract. That contract was fully Complied with, and the administratrix received her intestate's share of the Stock of diamonds, and gave a written receipt therefor. The present action was instituted by the administratrix and the children of M. M. Mauney in August, 1916, against the three trustees holding the lease contract as assignees. It was first brought as an action at law to recover possession of diamonds which had been taken Out Of the mine Since the former Settlement and division, but the complaint contained the same allegations as the complaints in the former actions concerning fraud in the procurement Of the COntract and the failure Of the lessee and his assignees to perform the contract in good faith. It is alleged that the defendants had quit working on the Mauney mine and were devoting all of their equipment to the development of the Ozark property, which was adjoining, and had failed to proceed in good faith with the development of the Mauney mine, and had failed to take Out and treat as much as 10,000 loadS Of dirt, and aS much m0re aS COuld reaSOnably be done, as stated in the contract. There were other allegations in the complaint with respect to the failure Of the defendants to permit plaintiffs to have access to the mine. There was an answer and cross-complaint filed, and by consent the case was transferred to equity and heard there as a suit to cancel the lease. The chancellor, upon the hearing of the case, denied the relief prayed for, and dismissed the complaint for Want of equity. [1] The proof adduced by the plaintiffs was given wide range, extending back to the negotiations between the parties at the time of the execution of the original contract, and the effort Was to establish the Old Charge that the Contract Was not entered into in good faith, but for the purpose of tying up the property by a long-term lease so that the lessee could eventually acquire title. The defendants pleaded the decree in the federal court, and also the judgment of the circuit court in the replevin Suit in bar of the right to sue to cancel the contract on account of fraud in its procurement, and also in bar of the charge that there had been a failure to comply with the terms of the contract up to the time Of those adjudications. It is clear, we think, that each of those cases constituted an adjudication of the issues concerning fraud in the execution of the contract, and also constituted adjudications that the terms of the contract had not been broken by the defendants up to the time of the institution of those suits. The right of

back no farther than the last of the adjudiCations thereof, and must be tested solely by proof tending to show a breach of the COntract since that time. [2] After consideration of the testimony We have reached the conclusion that there is not a preponderance against the finding of the chancellor. The contract contains no express provision for forfeiture of the lease, and COunSel for defendants invoke the eStablished rule that a tenancy cannot be terminated for breach of covenant by the lessee Where there is no express provision for a forfeiture, and that a court of equity will not lend its aid to declare a forfeiture on account of a breach Of the Contract. 1 Pomeroy's Equity, $459; Buckner v. Warren, 41 Ark. 532; Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S. W. 562; Williams V. Shayer, 100 Ark. 565, 140 S. W. 740. There is another principle, however, equally Well established that where one party to a contract has completely abandoned performance, a court of equity will give relief by canceling the contract, and that principle is applicable to a contract of this kind where the Sole benefit is to result from continued performance Such as One to develop a mine to pay royalty or divide the proceeds. Mansfield Gas Co. v. Parkhill, 114 Ark. 419, 169 S. W. 957. For a partial breach of the contract the parties thereto Will be remitted to their remedies at law, but in case of an abandonment equity will afford relief by rescisSion and cancellation. The contract in the present case clearly contemplated a persistent effort to develop the mine. It provides for a minimum amount of dirt to be taken out and washed, but further provides that the work shall be carried On with diligence, and that as much as reaSonable should be taken from the mine. If the proof was Sufficient to Sustain the charge in the complaint that the defendants were not substantially complying With the Contract, relief should be granted, but we do not think that the proof is sufficient to overturn the finding Of the Chancellor against that contention. It is undisputed that defendants have taken out the minimum quantity of dirt Specified in the contract; that is to say, 10,000 loads per annum. Millar testified that the year preceding the commencement of this action he t00k Out Of the Mauney mine 11,219 loads, and from the Ozark property only 819 loads. The testimony adduced by plaintiffs tended to show that about the same quantity of dirt Was taken from the Ozark property as from the Mauney mine, but the StatementS Of the Witnesses are vague, and they do not undertake to specify the quantity of dirt taken. Millar explained the purchase of the Ozark property by his COmpany, Stating that there WaS danger Of his company incurring liability for injury to ments or walls after excavation on the mining property, and that he was advised by attorneys that he could buy the Ozark property at a very low price, and that there would be economy in buying the property on the grounds stated above to escape liability as aforesaid. He further testified that they had not spent any money on the improvement of the Ozark property, and had only mined dirt sufficient to dig drainways to carry off the flow of water from the Mauney mine. He explained that there was drainage from another property called the Reyburn property, which also adjoined the Mauney property, and that the drainage from that property over the Mauney property could only be carried off over the Ozark property, and that in digging the drainways they hauled the dirt thus taken out and, washed it. It is undisputed that the defendants and their associates have spent a very large sum of money, approximately $100,000, in developing and starting Operations On the Mauney mine,

We do not think that the proof is sufficient at this time to justify a finding that there has been such an abandonment of the operations for a court of equity to grant relief by canceling the contract.

This decision is, of course, without prejudice to the rights of the plaintiffs to bring another action at any time it may appear that there has been an abandonment of the contract, or a substantial failure to Carry Out its terms.

Decree affirmed.

HART, I., dissents.

(134 Ark. 66) * BRANSCUM v. STATE. (No. 315.)

(Supreme Court of Arkansas. April 22, 1918.)

1. JURY Q=0.103(11) – COMPETENCY - FIXED OPINION. - In a murder prosecution, jurors claimed to be incompetent because of fixed opinions were properly held competent, where the opinions were based upon rumors and they stated that they would base their verdict solely on the testimony. 2. WITNESSES @->283—CROSS-EXAMINATIONRECALL OF WITNESSES. In a murder trial, where a witness had given damaging testimony against accused, it was not an abuse of discretion for the court to refuse to permit his recall that his prejudice against accused might be shown, where he had been cross-examined and the state had closed its case and defendant had put in a part of his testimony. 3. HOMICIDE 6:300(3)—INSTRUCTIONS—SELFDEFENSE. In a murder trial, an instruction requested by defendant, dealing with his right to act under the circumstances as they appear to him, but not requiring him to have acted “without fault or carelessness on his part,” was properly refused. 4. CRIMINAL LAW &822(8)—INSTRUCTIONSELF-DEFENSE—CHARGE AS A WHOLE. In a murder trial, an instruction on selfdefense was not erroneous because it made the

defense of justification turn upon what deceased was doing at the time the fatal shot was fired, where by the remainder of the instruction it was made clear that the conduct of deceased

referred to was the impression induced in accused’s mind while acting in good faith and as a reasonably prudent person. 5. HOMICIDE Q->254 – EVIDENCE – SUFFICIENCY. . . Evidence held sufficient to support a conViction of murder in the second degree. Appeal from Circuit Court, Stone County; Dene H. Coleman, Judge. James Branscum was convicted of murder in the Second degree, and he appeals. Affirmed.

Appellant pro se. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

SMITH, J. [1] This appeal is prosecuted to reverse the judgment of the court below, pronounced upon the Verdict of the jury finding appellant guilty of murder in the Second degree, The punishment was left by the jury to be fixed by the court. In impaneling the jury the court held Arthur Brittain and Leonard McAllister to be competent jurOrS, and exceptions Were Saved to that ruling on the ground that they were shown to have such fixed opinions concerning appellant's guilt as to render them incompetent. The jurors were examined at length by attorneys representing the state and the appellant and thereafter by the court. The answers of these veniremen Were Very Similar on their Voir dire; but there appears to be more question about the competency of Brittain than there Was about McAllister. No attempt was made to show that either Venireman entertained any prejudice against appellant, and it appears that the Opinions entertained were based upon rumor and each Stated in response to questions by the court that he 00uld and WOuld b880 his Werdict solely on the testimony, and the court, therefore, properly held the jurors competent to Serve as Such. DeWein V. State, 114 Ark. 472, 170 S. W. 582.

[2] A witness named Pearce gave damaging testimony against appellant, and an exception was saved to the refusal of the court to permit appellant to recall that witneSS and ask him a question which Would have tended to show prejudice against the appellant. It appears, however, that the Witness had been cross-examined at length by appellant, and the state had closed its case and had rested and appellant had put on a portion of his testimony when the request was made. The trial court must necessarily have a discretion in such matters, and as full opportunity for the cross-examination of the Witness was afforded before the state's case was closed, no abuse of discretion appears in the refusal to recall the WitneSS for further CrOSS-examination thereafter.

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