become known only after the trial. And it is said that the jury took the loss of this colt into account in assessing the damages. Counter affidavits were filed to the effect that there was no evidence that the colt had died, and it does not appear that the instructions submitted this issue. The motion for a new (134 Ark. 152) CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. WIGGINTON et al. (No. 319.) (Supreme Court of Arkansas. April 22, 1918. Dissenting Opinion, June 3, 1918.) -MISTAKE EVIDENCE. 16, 45(1) trial was overruled on October 6, 1917, by 1. REFORMATION OF INSTRUMENTS Courts will not reform instruments in writing for mistake unless the mistake is mutual and established by evidence which is clear, unequivocal, and decisive. "I am unable to determine the question of whether or not Joe Porter, Eugene Porter, and other witnesses testified that the colt concerning which they testified starved to death." This statement must be construed as declining to allow the exception that there was such testimony. It was the province of the court to determine what evidence was heard at the trial and to make a certificate thereof in the bill of exceptions, and with the record now before us we must hold that he has refused to allow this exception. And in the absence of a bystander's bill of exceptions this certificate is conclusive upon us. Appellant had the right, when the trial judge refused to allow this exception, to bring it into the record through the affidavits of bystanders in accordance with section 6226 of Kirby's Digest. The affidavits filed in support of the motion for a new trial cannot be held to constitute a compliance with the provisions of this section, because they were not filed for that purpose, and they are not treated by counsel for appellant as constituting a bystander's bill of exceptions. They were prepared and used in support of the motion for a new trial, and if they had any place in this record-a fact which we do not decide it would have been necessary to bring the affidavits themselves into the record through the bill of exceptions. So that we have before us only one bill of exceptions, and that is the one signed by the trial judge, and according to it the record presents no question of newly discovered evidence. Some other questions are raised in the brief, but they are not of sufficient importance to be discussed here. 45(14)— 2. REFORMATION OF INSTRUMENTS In a suit to reform a fire insurance policy by substituting a mortgage clause for a loss payable clause, evidence held to show mutual mistake. REFORMATION OF 3. INSURANCE 143(8) - That the beneficiary under a fire insurance policy accepted the policy and retained it for a long period of time without reading it does not constitute a defense to an action to reform the policy by substituting a mortgage clause for a loss payable clause. McCulloch, C. J., and Hart, J., dissenting. Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor. Suit by J. R. Wigginton and others against the Connecticut Fire Insurance Company of Hartford, Conn., to reform a fire insurance policy and to recover thereon. Decree for plaintiffs, and defendant appeals. Affirmed. J. A. Watkins, of Little Rock, for appellant. Hawthorne & Hawthorne, of Jonesboro, for appellees. HUMPHREYS, J. Appellees instituted suit in the Poinsett chancery court to reform a policy of insurance issued by appellant to J. R. Wigginton on the 4th day of February, 1913, securing him and his mortgagee, the Marked Tree Bank & Trust Company, against loss which might be occasioned by fire to a two-story frame dwelling situated on lot 1, block 3, Ritter's Third addition to the town of Marked Tree, Ark., and to recover the amount of the policy. It was alleged that through mistake a loss payable clause in favor of the Marked Tree Bank & Trust Company was attached to the policy as a part thereof, instead [6] Appellee not only asks an affirmance of a standard mortgage clause; that the loss of the judgment of the court below, but payable clause was subject to the conditions asks us to render judgment here for the in the policy, and one condition was that usable value of the mare since the date of no recovery could be had in case foreclosure the judgment below. We cannot do this be- proceedings were were instituted, whereas the cause it would be the exercise of original standard mortgage clause contained an exjurisdiction to determine who had posses-emption from that condition in the policy. sion of this mare from the date of the judg- Appellant answered, denying that it agreed ment below and what its usable value has been. Any relief to which appellee may be entitled on this account must be obtained by a suit on the supersedeas bond. Bolling v. Fitzhugh, 82 Ark. 206, 101 S. W. 173; Love v. Cahn, 93 Ark. 215, 124 S. W. 259. Judgment affirmed. to attach a standard mortgage clause to the policy, and that its failure to attach said clause was a mistake, and set up as a defense that foreclosure proceedings were commenced on the 6th of March by the Marked Tree Bank & Trust Company against W. R. Wigginton before the building was destroyed Ark.) CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. WIGGINTON 845 by fire, which suit, under the contract, void-, for appellees, on February 12, 1916, denying ed the policy. liability, and calling their attention to an The court heard the cause upon the plead- authority which he contended sustained his ings and evidence, reformed the policy, and position and that firm replied on March 6th, rendered judgment for $2,000 and interest to the effect that they would test the matter in favor of appellees against appellant. in the courts unless a compromise could be From that decree an appeal has been prose-effected. The mistake contended for was not cuted to this court. called to the attention of Mr. Watkins by Hawthorne & Hawthorne in their letter to him of date March 6, 1916. [1] It is contended by appellant that the evidence is not sufficient to establish the fact that it was the intention of the parties to the contract to make the standard mortgage clause a part of the policy. Courts will not reform instruments of writing for mistake unless the mistake is mutual and established by evidence which is clear, unequivocal, and decisive. Parker v. Carter, 91 Ark. 162, 120 S. W. 836, 134 Am. St. Rep. 60; Hoffman v. Rice Stix D. G. Co., 111 Ark. 205, 163 S. W. 520; Eureka Stone Co. v. Roach, 120 Ark. 326, 179 S. W. 499. [2] As to whether the court was correct in reforming the policy must depend on whether the evidence clearly shows a mutual mistake was made in attaching a loss payable clause to the policy instead of a mortgage clause. The policy sued on was issued by appellant to appellee Wigginton on the 4th day of February, 1913, and provided that appellant would pay not to exceed $2,000 to appellee Wigginton in case his dwelling situated on lot 1, block 3, Ritter's Third addition to the town of Marked Tree, Ark., should be destroyed by fire within three years after the date of the policy. The loss payable clause contained in the policy was set out in the proof of loss. M. W. Hazel, the vice president of the bank, testified that upon authority obtained from Wigginton he applied to Paul Leatherwood, appellant's local agent, for the policy, paid him the premium of $50, and requested him to attach a mortgage clause in favor of the bank; that the agent delivered the policy to the bank; that he never read it; that it remained in the possession of the bank until after the fire; that he passed upon loans, and the cashier and loan board looked over the papers securing loans; that Mr. Leatherwood had his office in the bank and wrote all the policies for the bank which protected its loans; that after the fire he got the policy and directed the cashier to attend to making the proof and collecting the insurance; that he was not present at the time the proof of loss was made and, knew nothing about its contents; that he first learned of the kind of protection the bank had from his attorney after the policy was delivered to the attorney for collection. J. C. Hawthorne testified that he prepared the proof of loss, but did not know a mistake had been made in attaching the loss payable 'clause instead of the mortgage clause until after he had a talk with Mr. Hazel subsequent to March 6, 1916. Mr. J. A. Watkins, attorney for appellant, wrote to Hawthorne & Hawthorne, attorneys Paul Leatherwood testified on two different occasions. The first time the substance of his evidence was as follows: That he was in the insurance business, and wrote the policy in question, but did not remember at whose instance; that he did not remember whether any one told him how to write the policy, but that he wrote it according to custom; that he did not know why he placed the loss payable clause instead of the mortgage clause on the policy; that all he remembered was that the bank had a mortgage from Wigginton on the property and paid the premium; that his idea was to protect the bank; that he did not particularly know the difference between the clauses at that time; that he kept a daily report in triplicate, pasted one on the policy, one on daily record book, and sent one to the company; that the daily record of this transaction contained the loss payable clause; that he had no rec-. ollection of ever placing a mortgage clause on any policy; that his records would show ; that Mr. Du Bard succeeded him in businessand had the records; that he had both kinds of clauses. The second time his evidence; was, in substance, as follows: That he solicited the insurance from Wigginton, and,. while he did not remember about the loss payable clause and mortgage clause, still, if. he knew about the mortgage, it was evidently his intention at the time to place a mortgage clause on the policy. J. R. Wigginton testified, in substance, that the officers of the bank wanted to make the collateral as strong as possible; that he went to Paul Leatherwood and told him that he wanted to give the bank a mortgage on the. policy, and asked him what he should do in order to effect that purpose; that he was informed the company furnished blanks, and the agent agreed to fill out and attach it to the policy; that in speaking of placing a mortgage on the policy he had reference to a mortgage clause; at the time he did not know the difference between the two clauses. J. D. Du Bard testified, in substance, that he was cashier of the bank and received the policy; that Wigginton owed the bank $2,600 in notes, with W. M. Hazel as indorser on some of them; when the policy was secured, Hazel was relieved as indorser on the notes; that he never read the policy; that the stockholders met annually and the directors monthly and examined the affairs and securities of the bank; that he presumed none of the directors read the policy in question; that at the time he received the policy he had every reason to believe that, closed its mortgage without first attempting He knew it had a loss payable clause, but was to have the policy changed had it known that not positive about it; that he remembered some policies held by the bank as security had the loss payable clause on them, and that he had no recollection of any that contained the mortgage clause; that at the time he regarded the loss payable clause the character of protection the bank desired, or that the insurance should be made payable to the bank in case of loss during the life of the mortgage; that he was not sure he knew at the time a foreclosure of the mortgage would void the policy, and, if he had known it and the matter had been left to him, perhaps he would not have accepted the policy with the loss payable clause attached. The following admission was made by appellant in the course of the trial: "It is admitted that T. J. Sharum, N. J. Hazel, M. W. Hazel, C. A. Dawson, C. M. Lutterloh, and the other directors of the bank, if present, would testify that they did not examine or read the insurance policy sued on, and did not know that it had a loss payable clause on it instead of a mortgage clause." a foreclosure proceeding with the knowledge of the assured would avoid the policy. The bank evidently intended to procure a policy of insurance which would not conflict with its right to foreclose, and thought it had done so, else it would not have instituted foreclosure proceedings. It seems to us the evidence and conduct of the parties under the contract is clear and convincing to the effect that a mutual mistake was made in the draft of the contract, and that, as written, the contract failed to express the intention of the parties. [3] We do not understand that the rule announced in Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70, and later cases, to the effect that "one who takes out a policy of life insurance is required to examine it within a reasonable time after he receives it, or he will be deemed to have accepted it, * any application in suits for reformation of has policy, and the bank retained it for a long period of time without reading it, cannot avail appellant as a defense, because it is established by clear, satisfactory, and convincing proof that the intention of all the parties to the contract was to place a mortgage clause, and not a loss payable clause, on the policy. This conclusion renders it unnecessary to discuss other questions presented by able contracts on account of mutual mistake. When it appears by clear, satisfactory, and It is conceded by learned counsel for ap- convincing evidence that the parties to a pellant in his splendid brief that recovery contract intended to express a different thing may be had on the policy in case it was the from that expressed, a court of equity will intention of all parties to the contract at the reform the contract so as to express the real time the policy was written to make a part intention of the parties irrespective of whethof it a standard mortgage clause. At the er one, both, or all the parties thereto availtime of making the contract the insurance ed themselves of the opportunity to read it company was represented by Paul Leather-before signing or receiving it. So in the case wood, and Wigginton and the Marked Tree at bar the fact that the cashier received the Bank by M. W. Hazel. The testimony of M. W. Hazel and J. R. Wigginton is certain and unequivocal to the effect that the agent was told to place a mortgage clause on the policy, and that he agreed to do so. Paul Leatherwood, the agent, said in his first testimony that he did not remember who ordered the policy, nor what was said to him, but his idea was to protect the bank. In his second testimony he said, if he knew about the mort-counsel in their briefs. gage, "it was evidently his intention at the time to place a mortgage clause on the policy." The company had furnished him both kinds of blanks, and the evidence is conclusive that he knew of the existence of the mortgage, so, in view of this latter state- McCULLOCH, C. J. (dissenting). The poliment, there is no escape from the conclusion cy of insurance sought to be reformed was that he intended to place a mortgage clause issued on February 13, 1913, and was delivupon the policy. These three parties are the ered to the Marked Tree Bank & Trust Comonly three who participated in the procure- pany on that date with an indorsement therement and execution of the policy; so it may on of what is commonly known as a “less be said with certainty from the evidence that payable clause." The building was destroythere was a meeting of the minds of all the ed by fire on January 9, 1915, nearly two parties to the contract for a mortgage clause years after the issuance of the policy, withto be attached to the policy. The failure to out any complaint having been made concernattach a mortgage clause and the substitu- ing the form of the indorsement. A policy of tion of a loss payable clause constituted a insurance is a written contract between the draft of contract contrary to the intention insurer and the beneficiary, and the right to of all the parties. Not only is this conclu- a reformation of the contract in equity on sion sustained by the positive evidence of the the ground of mutual mistake must, accordparties, but the subsequent conduct of the ing to well-settled rules announced by this bank officers points unerringly to the same court, be established by evidence which is No error appearing, the decree is affirmed. witnesses testified concerning the issuance of the policy-Hazel, one of the officers of the Marked Tree Bank & Trust Company, Leatherwood, the insurance agent who wrote the policy, and Wigginton, the owner of the building. The substance of Hazel's testimony is contained in the following sentence as 'to his conversation with Leatherwood: "I would not remember the exact terms, but I "I would not remember the exact terms, but I called him and told him I wanted him to make out an insurance policy on this property and attach a mortgage clause to it to secure the bank." The witness did not state what Leatherwood's answer was. He did not say that Leatherwood promised to use any particular form of indorsement, nor represented to him, when the policy was delivered, or at any other time, that the policy contained any particular form of indorsement. Leatherwood testified that he had no recollection of the conversation, and that he did not know the difference between a "standard mortgage clause" and a "loss payable clause." Wigginton testified that he did not know the difference between the two clauses in question and merely stated to Leatherwood that he wanted to give the bank "a mortgage on that policy." Leatherwood attached the "loss payable clause" to the policy-that is to say, a clause making the policy, in case of loss of the property by fire, payable to the Marked Tree Bank & Trust Company as its interest might appear-and delivered the policy to the cashier of the bank, who kept it until the fire occurred without raising any question as to a mistake in the form of indorsement. The testimony is far from convincing, I think, that a mistake was made. It is not established by evidence "clear, unequivocal, and decisive." No witness puts his finger on a form of indorsement and says, "This is what we agreed upon." No witness tells of a promise on the part of Leatherwood, the agent of the company, other than to make an indorsement protecting the mortgagee in case of loss, and he did that by indorsing a clause making the policy so payable. worth the paper on which they are written. But such is not the law. A contractor must will not read what he signs, he alone is responstand by the words of his contract; and, if he sible for his omission." Upton, Assignee v. Tribilcock, 91 U. S. 50, 23 L. Ed. 203. We have applied this doctrine in cases concerning the acceptance of insurance policies. Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70; Smith v. Smith, 86 Ark. 284, 110 S. W. 1038; Gray v. Stone, 102 Ark. 146, 143 S. W. 114. The only exception to the rule is that, where there has been a fraudulent representation concerning the contents of an instrument, the party, relying upon such representation and being induced thereby to refrain from reading the contract, is not estopped to question its correctness. Stewart v. Fleming, 96 Ark. 371, 131 S. W. 955. There is no such element as that in the present case, for it is not claimed by any witness that Leatherwood made any representations when he delivered the policy, or at any other time, as to the kind of indorsement he had made on the policy. It is clear from the testimony that, when Leatherwood made the indorsement, it was thought to be sufficient to protect the bank, and was accepted as such. If Mr. Hazel had in mind any particular form, which he now says he wanted indorsed on the policy, his testimony does not show that he specified it in his directions to Leatherwood. The bank could have protected itself if the officers had informed themselves of the contents of the policy and the indorsement thereon, and complied with the terms of the policy, and, having failed to do so, the bank is estopped to assert now that the policy is not in accordance with the intention of the parties. For these reasons, I dissent from the conclusion reached by the majority. Mr. Justice HART concurs in these views. (134 Ark. 337) KING v. HARRIS et al. (No. 380.) (Supreme Court of Arkansas. May 20, 1918.) 1. STATES 200-ACTION-PARTY IN EJECT MENT-JURISDICTION. Moreover, the bank is estopped to dispute the correctness of the policy by the conduct of its officers in keeping the policy for nearly two years without question. It was their duty to read the policy, and, having failed to In ejectment, where the state, by the prosedo so, they cannot be heard to say that it cuting attorney, filed answer and demurrer setdoes not correctly express the contract. Co-ting up its title to the land by virtue of escheat proceeding, thus becoming in effect a party lonial & United States Mortgage Co. v. Jeter, plaintiff to the litigation, the circuit court should 71 Ark. 185, 71 S. W. 945; Pratt v. Metzger, not have dismissed the complaint on the ground 78 Ark. 177, 95 S. W. 451; Mitchell Manufac- that the suit was against the state, of which the court had no jurisdiction; the state's sovereignturing Co. v. Kempner, 84 Ark. 349, 105 S. W. ty not being involved. 880; Stewart v. Fleming, 105 Ark. 37, 150 S. W. 128. In those cases we quoted with approval the following from an opinion of the Supreme Court of the United States: "It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be 2. ESCHEAT 7-ATTACK IN EJECTMENT ACTION-RIGHT OF PLAINTIFF. filed answer and demurrer, thus in effect beIn ejectment, where the state appeared and coming a party plaintiff and claiming the land under former escheat proceedings, plaintiff was entitled to a trial of the issue whether there had been a substantial compliance with the statutes defining the procedure and vesting title to es cheated property in the state. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. COURTS 24-JURISDICTION OF SUBJECTMATTER ACQUISITION BY CONSENT. Where the circuit court of Madison county, where the land involved was situated, made no order changing venue of a suit in ejectment, the Washington county circuit court, to which the case was transferred by consent of the parties, was without jurisdiction to try such suit, since, while jurisdiction of the parties may be acquired by consent, jurisdiction of the subject-matter of the litigation cannot thus be acquired. Appeal from Circuit Court, Washington County; Jos. S. Maples, Judge. possession of said lands as the tenant of the state of Arkansas under authority of the prosecuting attorney, and that said suit, which had been instituted to recover the possession of said lands by appellant, was in effect and in fact a suit against the state, and not against the nominal defendants named in the complaint. It appears that the case was then transferred by consent to the circuit court of Washington county, The where it was tried before the circuit court Action by Tom King against J. C. Harris without the intervention of a jury. But no and another, wherein J. S. Combs, Prosecut-order changing the venue was made. ing Attorney for the Fourth Judicial District, appeared in behalf of the state. From an order dismissing the complaint, plaintiff appeals. Judgment reversed, and cause remanded, with directions. J. V. Bourland, of Ft. Smith, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for appellees. SMITH, J. Appellant filed his complaint in ejectment in the circuit court of Madison county against J. C. Harris and George Fullerton, in which he sought to recover the possession of certain lands situated in that county. He deraigned title by descent as the only heir at law of one S. S. Smith, who, according to the allegations of the complaint, had died seised and possessed of the land sued for. Harris and Fullerton did not appear, and made no defense whatever to the 'action. But J. S. Combs, prosecuting attorney for the Fourth judicial district, in which Madison county is located, appeared in the action in behalf of the state of Arkansas and filed for the state a pleading which is denominated in the record as an answer and demurrer, in which pleading said prosecuting attorney set up that the lands described in appellant's complaint had previously escheated to the state upon the death of S. S. Smith, the former owner, and that after the estate of said Smith had been fully administered, and no heirs at law being known or appearing to claim said land, the prosecuting attorney had instituted, in the circuit court of Madison county, the proper proceedings prescribed by law to vest title to such lands in the state, and that the persons named as defendants in appellant's complaint neither had nor claimed any interest whatever in said lands; that the only connection which Harris had with said lands was that he had been the administrator of the estate of said Smith, deceased, the former owner of said lands, and as such administrator had collected the rents on said land during the course of said administration, and had applied said rents, along with the personal property of the deceased, to the payment of debts probated against the estate of deceased; and that said Fullerton was, at the time of the institution of said action, in circuit court of Washington county held that the suit was in effect one against the state, and that the circuit court was without jurisdiction to try the same, and dismissed the complaint without prejudice, and this appeal has been prosecuted to review that order. [1] No order appears to have been made by the court below upon the filing of the prosecuting attorney's demurrer and answer; but testimony was heard in the court below and the cause proceeded to judgment as if the state had been made a party to the proceeding, and the final judgment entered in the cause indicates that the court below treated the state as having been made a party to this litigation, and we will so treat the record, although this appeal has been prosecuted and perfected in the names of the original parties. The state has in effect become a party plaintiff to this litigation, and the court should not thereafter have dismissed the complaint for the reason assigned; i. e., that it was a suit against the state. The state's sovereignty is in no manner involved in this litigation. At its own election and through its prosecuting attorney it became a party to private litigation, which involved the title to a tract of land which had been owned by appellant's ancestor at the time of his ancestor's death. The state asserted title only by virtue of a certain escheat proceeding, and it was, of course, competent for the heir at law who claimed the property to show that the title to the property had not been divested out of Smith's heirs, in fact escheated. And that is now the question at issue. [2] We do not review the record in this case to determine the validity of the escheat proceeding, as it suffices to say that appellant undertook in the court below in opposition to the state's intervention, to show that there had been no substantial compliance with the statutes of this state which define the procedure for vesting the title to escheated property in the state, and appellant is entitled to a trial of this issue in the proper forum. [3] However, the point is made that the Washington circuit court did not have jurisdiction to try this case, for the reason that the lands in controversy are situated in Madison county, and it was only by consent |