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the terms of the contract. It was only able to Sell a Sufficient number of lots from time to time to pay the interest and taxes. In 1915, Porter tried to sell the property for $14,000, but was unable to do so. He informed Booher of it, and Booher made no objection. During the summer of 1916, the Citizens’ Company began negotiations for the sale of the property to C. K. Lincoln for the price of $15,000. On the 8th day of May, 1917, Mr. Lincoln, through his agent, Fred A. Snodgress, took a 60-day Option. On the property for the price of $15,000. There was at that time remaining unsold 177 lots. Lincoln paid the purchase price of the property and a deed was duly executed to him by Porter. The evidence on the part of the defendants showed that $15,000 Was a fair price for the property. On the other hand, evidence was adduced by the plaintiffs tending to Show that Since the location Of the Cantonment at Little Rock the price of real estate had enhanced in value, and that the property Was Worth much more than $15,000 in May, 1917. The chancellor found the issues in favor of the defendants, and a decree was entered accordingly. To reverse that decree this appeal is prosecuted.
Coleman & Lewis and Wallace TOWnSend, all of Little Rock, for appellants. Geo. A. McConnell and Rose, Hemingway, Cantrell, Loughborough & Miles, all of Little Rock, for appellees.
HART, J. (after stating the facts as above). Counsel for the plaintiffs rely on the case of Swift v. Erwin, 104 Ark. 459, 148 S. W. 267, Ann. Cas, 1914C, 363, where it was held that a power to sell real estate does not include the power to give an option to purchase it. They contend that the agreement between the Citizens' Company and BOOher is only a naked power to sell the property, and that it had no authority to give the option to Lincoln. Thus it will be seen the decision of this case turns upon the construction to be given to the contract entered into between Booher and the Citizens’ Company-on the 26th of August, 1913. The rule governing the construction of such contracts is well settled. The only difficulty is in its application to a given state of facts.
In Hunt V. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589, Chief Justice Marshall, speaking for the court, said:
“We hold it to be clear that the interest which can protect a power after the death of the person who creates it must be an interest in the thing itself. In other words, the power must be ingrafted on an estate in the thing. The words themselves would seem to import this meaning. A power coupled with an interest,’ is a power which accompanies or is connected with an interest. The power and the interest are united in the same person. But if we are to understand by the word ‘interest an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised, and by its exercise is extinguished.
The power ceases when the interest commences, and therefore cannot, in accurate law language, be said to be ‘coupled’ with it.”
This decision is a leading case on the ques- ' tion, and has been generally followed in the United States. The excerpt from it above was quoted with approval by this court in Yeates et al. V. Pryor, 11 Ark. 58.
Therefore to impart validity to the option contract between the Citizens’ Company and Lincoln, the Citizens’ Company must have had the power to make it. In Other Words, there must coexist with the power to sell given to the Citizens' Bank under the contract an interest in the property to be sold. The Citizens' Company proceeded under the idea
, that the contract gave it a power coupled with
an interest. On the Other hand, it is contended by the plaintiffs that it is a case where property had been mortgaged for the security Of money, and the contract only gave the mortgagee the authority to sell the mortgaged property and reimburse itself. The chancellor adopted the construction placed upon the contract by the defendants, and We think his decision Was COrrect. The nature Of the power is to be determined from a consideration of the purposes and intent of the parties appearing from an examination Of the entire instrument. The Surrounding circumstances, as shown by the instrument, are that Booher owed the Valley Savings Company $8,000, secured by a mortgage on the property, and owed the Citizens' Company $4,600, secured by a second mortgage on the same property. He was unable to pay this indebtedness, and the Citizens’ Company agreed to take up and carry the amount due on the first mortgage. It was expressly agreed between the parties that Booher should convey the property to R. W. Porter for the benefit of both parties equally upon certain conditions. One Of these Was that the Citizens’ Company should have the exclusive sale of the property and be allowed a certain commisSion for making Sales. It was also provided that Booher should be allowed a stated commission on any of the property that he might Sell. The terms Of the Sale Were then proVided for in the instrument. Then follows a section as to the disbursement of the proceeds. It first provides for the payment of commissions and taxes and then for the payment of the indebtedness to the Citizens’ Company. It then provided that both parties should share equally in what might be left. On the Same day Booher executed a Warranty deed to R. W. Porter as provided for in the written agreement. The legal title to the property became Vested in the trustee with the power to sell and to convey and to divide the Surplus equally between the parties. The instrument expressly stipulates that the conveyance to the trustee is made for the benefit of both parties equally. The language of the instrument gaWe them a joint interest in the property. Another clause provides that each should be paid Stat
ed amounts for making Sales. This excludes the idea that the division of the Surplus WaS intended merely as a payment of a commission to the Citizens' Company for making sales of the property. The power given by the instrument is not a mere naked power, but is a power coupled with an interest in the property itself. Bonner V. Cross County Rice Co., 113 Ark. 54, 167 S. W. 80, Harr v. Fordyce, 88 Ark. 192, 113 S. W. 1033, Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 306, and Shaeff
er v. Blair, 149 U. S. 248, 13 Sup. Ct. 856,
37 L. Ed. 721. Of course the assignment by BOOher to Catherina gave the latter no greater rights under the contract than were acquired by the former under its terms. t follows that the decree must be affirmed.
(136 Ark. 604)
TALLEY W. DAVIS. State Bank Com’r. (No. 361.)
(Supreme Court of Arkansas. May 13, 1918.)
1. HUSBAND AND WIFE 3:129(3) — WIFE's PROPERTY IN CONTROL OF HUSBANI-EsTOPPEL OF WIFE. Where complainant permitted her husband to withdraw money which she had deposited in certain bank, and to deposit it in his own name in another bank to which he subsequently became indebted, whereupon he changed the account from his name to that of his wife, the complainant was, upon the bank's insolvency, estopped from claiming the deposit as her own, since, where a married woman permits her husband to hold her personal property out as his own, she will be estopped as against his creditors to claim it. 2. BANKS AND BANKING 3:63%—DEPOSITs –OWNERSHIP. Where a married woman has an account in an insolvent bank to which her husband is indebted, the state bank commissioner, taking charge of the liquidation of the bank, has a right to have the question as to whether the # belonged to the husband or wife adjudiCated.
Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor.
Suit by Mrs. W. E. Talley against John M. Davis, State Bank Commissioner. From a decree for respondent, complainant appeals. Affirmed.
Mrs. W. E. Talley filed a petition in the chancery court for an allowance and payment Of a dividend from the Citizens' Bank of Rogers, Ark., which had been adjudicated to be insolvent and placed in the hands of John M. Davis, state bank commissioner. The dividend had been refused her on the ground that the money claimed by her belonged to her husband, W. E. Talley. W. E. Talley formerly lived at Jonesboro, Ark., and left there to locate at Springfield, Mo. He
sold his home and gave the proceeds, amounting to $8,500, to his Wife. She deposited it in a St. Louis bank. She also
received about $750 from her father's estate, and deposited it in a bank at Springfield.
Subsequently they removed to Rogers, Ark. Her husband became president of the Bank of Rogers and was a stockholder in the Citizens' Bank of Rogers, Ark. Mrs. Talley delivered the Certificates Of deposit to her husband, and told him he might use them in his business. He first deposited the $3,000 in Controversy in this case in his own name in the Bank of Rogers. Subsequently he transferred it to his own account in the CitiZenS’ Bank. A Short time before the Citizens' Bank became insolvent he changed the deposit from his name to that of his wife, Without saying anything to her about it. The Citizens' Bank became insolvent, and on the 16th day of July, 1914, was placed in the hands of John M. Davis, state bank commissioner, for the purpose of liquidation. W. E. Talley at that time was indebted to the bank and had become insolvent. He filed for his wife her claim for the $3,000, which she alleges she had on general deposit in the bank at the time it failed. The bank commissioner refused to allow her claim on the ground that the money belonged to her husband, and that the bank had certain offSets against him. The chancery Court Sustained the contention of the state bank commissioner, and the case is here on appeal.
W. N. Ivie, of Rogers, for appellant. E. H. Thomas, of Kansas City, Mo., and W. B. Smith, Of Little Rock, for appellee.
HART, J. (after stating the facts as above).  It appears from the record that Mrs. Talley permitted her husband to withdraw $3,000 of the money which she had deposited in two banks in Missouri, and he depOSited the Same in his OWn name in the Bank of Rogers. He then transferred the account to the Citizens' Bank of Rogers, and Was allowed to use it for his Own benefit. It is true that before the bank failed he Changed the account from his own name to that of his wife, but in the meantime he had become indebted to the bank in a large Sum. Therefore Mrs. Talley is estopped from claiming the deposit as her own. It is well Settled in this state that where a married Woman permits her husband to hold her perSOnal property Out as his own, she will be estopped as against his creditors to claim it as her own. McClintock v. Skinner Co., 126 Ark. 591, 191 S. W. 230.
Counsel for appellants rely on the case of German Bank v. Himstedt, 42 Ark. 62, in which it was held that a bank is bound to pay to a depositor or to his order money deposited by him, and cannot refuse on the ground that it belongs to another. In that CaSe neither the bank nor its Creditors had any interest in the money deposited. The bank paid out the money before it had any notice that the money did not belong to the Wife.
&=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 In the present case the husband is indebted to the bank, and the state bank commissioner, who had charge of the liquidation of its affairs, had a right to have the question of whether or not the money belonged to Mrs. Talley adjudicated. If the money did not belong to her, she had no right to participate in the dividends paid to creditors of the bank. Of course the rights of W. E. Talley, he not being a party to this proceeding, are not adjudicated. The Only question at iSSue Was aS to Whether Or not the money belonged to Mrs. Talley, and, if so, to compel the bank to account to her for it.
The decree will be affirmed.
(134 Ark. 175)
GRAYLING LUMBER CO. et al. v. EBBITT et al. (No. 368.) (Supreme Court of Arkansas. May 13, 1918.) 1. VENDOR AND PURCHASER G+44 – FALSE REPRESENTATIONS-EVIDENCE. Evidence held to support findings that defendants were induced to purchase lands to their damage by false and fraudulent representations of plaintiff and another. 2. VENDOR AND PURCHASER Q->34–LIABILITY FOR REPRESENTATIONS OF ANOTHER. It is not necessary for the relationship of agency to exist between a vendor and the party inducing or procuring the sale of lands through fraud and deceit in order to warrant relief against the vendor, but the vendor will be held liable if he participates in the fraud, or if he had knowledge of the fraud and adopts or takes advantage of it. 3. VENDOR AND PURCHASER S-36(1)—LIABILITY FOR REPRESENTATIONS OF ANOTHER. Where vice president of vendor corporation was present when a third person falsely represented the value of land, and did not deny the other's statements, but, in response to a direct question, advised the prospective purchasers it was a good investment, the company was bound by the fraudulent representations of the third person inducing the sale to the purchasers.
Appeal from Desha Chancery Court; Z. T. Wood, Chancellor.
Suit by the Grayling Lumber Company against Catherine Ebbitt and others, with CrOSS-bill by defendants against the Lumber Company and one C. B. Hoyt. From the decree, plaintiff and said Hoyt appeal. Affirmed.
J. Bernhardt, of Arkansas City, and Samuel Frauenthal, of Little Rock, for appellants. E. E. Hopson, of Arkansas City, and J. W. & J. W. House, Jr., of Little Rock, for appellees.
HUMPHREYS, J. Appellant Grayling Lumber Company instituted suit against appellees in the Desha chancery court to reform a deed executed by it on November 30, 1914, to said appellees, so as to convey the west half of section 13, township 13 south, range 2 West, instead of the east half thereof. The complaint alleged, in Substance, that the deed in question was a quitclaim deed executed to appellees until it could obtain a release of
the west half of said section from a mortgage it had theretofore executed to the Security Trust Company, at which time it had agreed to execute a warranty deed for the west half of said section to said appellees; that it Secured said release and executed the warranty deed on February 5, 1915, to appellees, properly describing the land intended to be conveyed as the West half of said Section, township, and range. Appellees anSwered, admitting that they had received both deeds, thinking they described the same property and that no mistake was made in describing the land in the quitclaim deed, as it was the intention of appellant to convey the east half instead of the West half of said Section to them. Appellees, by way of crossbill, alleged that appellant and C. B. Hoyt. had effected the sale of the lands, which were WOrthleSS, to them through false representations and asked for a rescission of the sale and a personal judgment against appellants, Grayling Lumber Company and C. B. Hoyt, and for a lien on said lands to secure the judgment. Appellants, Grayling Lumber Company and C. B. Hoyt, filed separate answers, denying that the sale of said lands was procured through false representations made by them and that the lands Were Worthless. The cause Was Submitted upon the pleadings, depositions, exhibits, and stipulations of counsel, from which the court found that appellees were induced to buy the west half of Said section, township, and range through the false and fraudulent representations made to them by the Grayling Lumber Company and C. B. Hoyt; that said appellees were entitled to a rescission of the sale; and that the quitclaim deed to the east half of said Section Was an error. Based upon those findings, a decree was rendered, canceling the deeds and a personal judgment was rendered against Grayling Lumber Company for the purchase money paid it, together with interest thereon, and taxes paid by appellees on Said lands for the year 1915, from which deCree an appeal has been prosecuted by the Grayling Lumber Company and C. B. Hoyt to this court. The weight of the evidence is to the effect that the land described in the quitclaim deed Was an error, and should have been the West half instead of the east half of section 13, township 13 South, range 2 West; and, as appellees do not seriously contend otherwise, it is unnecessary to set out the Substance Of the evidence On that issue.  It is impractical to set the evidence out in detail, but the material parts thereof, responsive to the issues of whether or not appellants, through false and fraudulent representations, induced appellees to buy the land to their damage, as detailed by the respective witnesses, is in Substance as follows: Margaret Ebbitt testified that she and her sister invested all their earnings in the land, upon the representations of her friend of
25 years standing, C. B. Hoyt, to the effect that the land was susceptible of cultivation, could be cleared for about $12 per acre, was near Arkansas City and Suitable for a home; that the taxes were nominal; that he had paid more for adjoining lands no better; that they could place their land and his under One management and farm it to great adVantage. Testifying further, she said Mr. Hoyt informed them he had bought lands in Arkansas, and, being interested in his deScription of the lands, her sister asked him if he could not purchase SOme lands for them adjoining his; that he agreed to investigate the matter and make an effort to do so; that early in November, 1914, she was called up by her sister, who was housekeeper at the Great Northern Hotel in Chicago, and informed that Mr. Hoyt was there and wanted to see her; that She Went OVer and found Mr. SC0tt and Mr. Hoyt in her sister's room; that Mr. Scott said it was a “good thing,” “that is, a good investment,” and, as he left, remarked that he was going to be her neighbor; that as a result of the conversation Mr. Hoyt went to Detroit to try to buy the land, and reported that he succeeded, but had difficulty in buying it for $12 an acre; that they gave him the money and, later, received a quitclaim deed, thinking it was the only deed they were to receive, and still later received the warranty deed which had been recorded by the company before sending it to them; that she explained to Mr. Hoyt in the beginning that she and her sister had saved their money to buy a home, and that he assured her he had bought lands for this purpose, and he was interesting other friends, and that they would be neighbors, and that the lands could be placed under one management for cultivation; that Mr. Hoyt represented them in the transaction. Catherine Ebbitt's testimony did not materially vary from the evidence of her sister. J. H. Fuquay, Frank Ramus, George E. James, and B. O. Zellner, all residents of Desha county and familiar with the lands, testified that the West half of Section 13 Was west of Clay bayou, or the canal, and north of Keleen ditch, and that all the land except a Small acreage near the ditch is low and covered With Sloughs, bayous, and ravines, and wholly unfit for cultivation; that the east half of section 13 has a public road acroSS it and is above Water, but that the West half Of the Section is SWamp land, inundated most of the time, and that, since the canal has been cut, the west half of the section could not be reached any time in the year by public road; that the canal would have to be bridged at a large expense to make the land accessible to Arkansas City, that it would cost from $25 upward per acre to clear the land; that all Virgin timber has been cut; and that the land is practically WorthleSS. S. W. Whitthorne, engineer for Cypress Creek drainage district, in which the land
is located, testified that the lands in their present condition are not susceptible to cultivation, but that when Cypress Creek drainage district is closed in and ditch No. 81 is completed the lands will be susceptible to cultivation, except in times of extraordinary rainS. B. A. Scott testified that he was Vice president of Grayling Lumber Company when the Sale Was made, and that he executed the deed to appellees for the company; that he and Mr. Hoyt came down to Arkansas in the early part of November, 1914, and on the way back Mr. Hoyt told him that the Ebbitt girls wanted to buy a part of section 13, and asked if they could get it; that he anSWered: “If they want to purchase it you can go ahead and ask Filer of the board and see if they will let it go.” Mr. Scott continuing his testimony said: “When we got back to Chicago, as I remember, we were in Catherine Ebbitt's room at the Great Northern Hotel—she was housekeeper there—and she called for her sister. She came over. As I recollect, she asked me what I thought of the investment in these lands, and I said it was good; I intended to purchase some myself and clear up a farm there, and Mr. Hoyt had the plat, and he showed her that he owned the east half of section 13, and he wanted them to buy the west half. There was no mention of going down there to live, in my recollection: other than when they had a bungalow they would go down there once in a while for a vacation.” Continuing, Mr. Scott said that the land was represented as being about 2 or 2% miles from Arkansas City. Mr. Scott also testified that the land was worth $12 per acre when the sale was made; $15 per acre when he gave his deposition, and would be double that value in about 2 years, when the levee Will be closed in and the land properly drained. He also testified that he did not urge the ladies to buy the land, and that he was not a party, directly or indirectly, in overreaching them in the sale, and that Mr. Hoyt was not the agent or representative of the Grayling Lumber Company in the transaction. Mr. C. B. Hoyt testified: That he bought the east half of section 13 for $8 an acre on January 31, 1913, and that he frequently talked about the investment in the presence of appellees, Who had confidence in his friendship and judgment; that the conversation inspired the request by Miss Catherine to in Vest their earnings in Arkansas lands, against which he advised, and led to Conference in Miss Margaret's room in the Great Northern Hotel in Chicago. He was finally authorized by the sisters to buy the west half of Section 13 for them if he could get it; that he was acting for them, and not the Grayling Lumber Company, in the purchase of the land, and that while he spoke of being their neighbor, and Of Others buying adjoining land, and of the lands being placed under a joint management, there was nothing said about them living On the land, and that he would not have advised them to buy it for a home; that their conversations pertained entirely to the proposition as an investment; that the Only representations made to them about the character of the land were that it was as good as the east half of the section that he had bought; that he was not acquainted with the value of lands in that section of Arkansas; that he knew nothing about the rate of taxation on the lands; that he did not tell them that the lands were in a levee and drainage district, but did inform them, on one occasion, the lands Overflowed; that his SOle purpoSe Was to befriend them and make a good investment for them, and that he had no intention of defrauding them. J. C. Spry, a lumberman and land agent in Chicago, who had inspected the lands and who was familiar with lands in that Section, testified that the market value of the land was $15 an acre at the time he was testifying, and that $12 was cheap for them when the sale was made. It was agreed that prior to the sale the lands in question were included in Cypress Creek drainage district and 10 cents per acre per annum was assessed against it for 25 years, and that 30-year payment bonds in the sum of $300,000 were sold by the board prior to the sale, and constituted a first lien On the lands involved in the Suit. We think it shown by a preponderance of the evidence that C. B. Hoyt represented to appellees that the west half of Section 13 could be cleared up for $12 an acre and put in cultivation; that it was a short distance from Arkansas City, and Would make a Suitable home for them; that the taxes Were nominal, and it was a good investment for them. We also think it is shown by the weight of evidence that the land Was a swamp, inaccessible, unfit for habitation, not susceptible to cultivation, of little value, and subject to a levee district tax in addition to the general county and State taxes. The evidence further shows that appellees had no opportunity to inspect the lands, and that they bought the lands wholly and entirely upon representations made to them as to its Character and Value. [2, 3] It is insisted by appellant Grayling Lumber Company that it is not bound by the misrepresentations, if made, because C. B. YHoyt was the agent of appellees, and not its agent. It is not necessary for the relationship of agency to exist between a vendor and the party inducing or procuring the sale of lands through fraud and deceit in order to warrant relief against the Vendor. A Vendor will be held liable if he participates in the fraud, or if he had knowledge of the fraud and adopts or takes advantage of it. 12 R. C. L. p. 399, $147. B. A. Scott was vice president of the Grayling Lumber Company. He knew of the relationship existing between
appellees and C. B. Hoyt. He knew they had no opportunity to inspect the lands, and if the sale Were made it would be upon representations as to the character and Value Of the lands. He knew the land Was inaccessible to Arkansas City on account of the canal, and that it was covered with bayous, ravines, and Sloughs; that it was Without Value as a timber proposition; and that it was not susCeptible to Cultivation at that time; that it Was an unfit place for Women to reside; that Hoyt had a map and was explaining where he had bought and Where he Wanted them to buy; that the purpose of the conference was to sell the west half of section 13 to appellees. In reSponse to a direct question he told them it was a good thing, and advised that it would be a good investment, and in order to impress that fact upon them said that he intended to buy SOme Of the land and Open up a farm himself. The opportunity was afforded him to eXplain the COndition and Character Of the land to appellees, but he failed to do so, and permitted his company to accept their money and himself executed the deed for his company to them. The COmpany is bound by the knowledge and action of its Vice president who was present at the conference, which reSulted in appellees authorizing C. B. Hoyt to purchase the land. The company must be regarded as having taken advantage of the fraudulent misrepresentations of C. B. Hoyt in inducing the sale.
The chancery court did not render a perSonal judgment against C. B. Hoyt, and appellees prayed a cross-appeal, and urge that the court erred in failing to give them a perSonal judgment against him. Upon examination of the record, it appears that a supersedeas bond has been filed, and that C. B. Hoyt is a Surety thereon, so we deem it unnecessary to discuss this feature of the case.
No error appearing in the record, the judgment is affirmed.
(134 Ark. 42) SRUM v. SLANKARD. (Nos. 313, 385.) (Supreme Court of Arkansas. April 22, 1918. On Rehearing, May 20, 1918.)
1. ELECTIONS @->294—BALLOTS-PAROL EVIDENCE-FRAUD. A ballot is a writing or quasi record, but. like any other instrument of the same character, when imbued with fraud it gives way to oral testimony which is credible. 2. ELECTIONS @->299(1/3) – CONTESTS – EVIDENCE. In an election contest, where it is alleged ballots were tampered with, the court may ex: amine the ballots and consider the nature of the markings in making its findings as to whether there were any forgeries. 3. ELECTIONS Q=295(1) – CoNTEST-TAMPERING WITH BALLOTS—EVIDENCE. In election contest, evidence held to support a finding that ballots had not been tampered with before a recount. 4. EVIDENCE Q->177—CoNTESTS-BEST EVIDENCE—BALLOTS. Where in election contest the court found that ballots had not been changed or tampered