the lease when it was made, and cannot be retrospectively made such when rights are builded upon it which were enforceable between the parties, and then valid. This is a statutory, not a common-law, right of forfeiture at the instance of the state. Therefore the court erred in forfeiting the lease upon this ground.

3. The next ground of forfeiture which the court sustained was a failure to furnish the patrons of the road reasonable shipping accommodations for freight. The evidence was insufficient to work a forfeiture on this ground. There was not much evidence on this issue, most of it being directed to the passenger facilities; and what there was on the subject did not show sufficient failure in public duty to forfeit the franchise on this ground, and doubtless it would not have been forfeited upon it alone.

4. On the alleged failure to "maintain said property in good repair, so as to afford safe and reasonably prompt facilities of travel to the public," there is substantial evidence justifying the court in finding that the appellant had failed in its duty to the public in this regard. Although error was committed in adjudging the forfeiture on the other grounds, the judgment must be affirmed, unless this question of fact was one upon which the appellant had a constitutional right to trial by jury. The question in the first trial was submitted to a jury, which disagreed; and on the second trial the court held that the appellant was not entitled to a jury trial, and heard the case before the court. The appellant demanded a trial by jury, and has preserved proper exceptions to the action of the court in denying it. There was much ancient learning on the subject of writs of quo warranto and informations in the nature of quo warranto. A reference to the subject may be found in the recent case of Moody v. Lowrimore (Ark.) 86 S. W. 400, and the cases there cited. Those questions are academic now. While this court is clothed with jurisdiction to issue, hear, and determine the writ in aid of its appellate jurisdiction, the writ and information, as an original proceeding, are abolished by the Code. "Actions by proceedings at law may be brought to vacate or repeal charters and prevent the usurpation of an office or franchise." And actions to repeal or vacate a charter shall be in the name of the state, and brought and prosecuted by the Attorney General, or under his sanction and direction. Kirby's Dig. §§ 7981, 7982. In considering these Code changes, the court said, through Chief Justice Cockrill: "But the constitutional right to trial by jury is confined to cases which by the common law were so triable [citing authorities]; and it was decided in State v. Johnson, 26 Ark. 281, that the right did not extend at common law to a civil proceeding in the nature of quo warranto against a public officer. The statute does not enlarge the right, nor attempt to extend it to cases of this or like nature [a usur

pation of office case], as was held in Williams v. Citizens, 40 Ark. 290. No claim for fees or emoluments was made by the plaintiff." Wheat v. Smith, 50 Ark. 266, 7 S. W. 161. State v. Johnson, 26 Ark. 281, is one of the leading American authorities to sustain the view that trial by jury was not a right at common law on quo warranto proceedings to oust an alleged usurper from office. There is much conflict of authority on that question. It seems that the weight of authority is against that view, but the same rule is adhered to in Wheat v. State, since the adoption of the Code, when no fees or emoluments are claimed, and merely the title to the office is in question. Whether Johnson v. State is authority for the nature of the writ as an original proceeding under the present Constitution is not a question in this case. In the case of Taylor and Marshall v. Beckhan, 178 U. S. 548, 20 Sup. Ct. 1009, 44 L. Ed. 1187, the Supreme Court of the United States held that a public office was not property, and this view will unquestionably lend great weight to the line of authorities like State v. Johnson and Wheat v. Smith, denying trial by jury in usurpation of office proceedings. Chief Justice Cockrill evidently had that distinction in mind in Wheat v. Smith, when he called attention to the fact that fees and emoluments were not involved in that suit. When a franchise or charter is in issue, and the manifold contractual rights growing out of them, property, in its highest sense, is involved. In quo warranto proceedings at common law, brought to vacate charters, trial by jury seems universally to have been accorded to determine the facts. In People v. Albany & Sus. R. Co., 57 N. Y. 161 -an action by the Attorney General, in the nature of quo warranto, to try the title of directors controlling a corporation—the court said: "This issue, being strictly a legal issue in its character, is one in the trial of which, in the language of the Constitution, the trial by jury has been heretofore used. Such a trial was therefore the constitutional right of the parties." The Supreme Court of Florida said: "Our examination into the matter has conducted us to the conclusion that at the time of the Revolution the trial of pure questions of fact in such proceedings was by jury." The court then proceeds to cite and quote from the common-law authorities showing that issues of fact were uniformly triable by jury. The court proceeded: "In Rex v. Bennett all the judges of England were equally divided, the division being over the question whether a new trial could be granted after a verdict in favor of the defendant in such proceeding. The view that the suit was criminal then widely prevailed, but this point was finally settled in favor of the view above announced-that the action, though criminal in form, was regarded as a civil suit for the purpose of trying the right to the franchise." Buckman v. State, 34 Fla. 48, 15 South. 697, 24 L. R. A. 806. In Attorney General v. Sul

The

livan, 163 Mass. 446, 40 N. E. 843, 28 L. R. A. 455, the Massachusetts court said: "Without considering whether a suit or information to declare forfeited the charter of a private corporation would not be held to be a controversy concerning property, within the meaning of this article, we are of the opinion that a public office, such as that of president of the common council of the city of Lowell, is not property, within the meaning of this article." The common-law authorities showing that issues of fact in quo warranto were triable by jury are collected in this case. Indiana court said that the decided weight of authority was that issues of fact in quo warranto proceeding were triable by jury at the time the common law was inherited by the colonies, and cites the authorities on both sides of the question. Reynolds v. State, 61 Ind. 393. In Com. v. Delaware & Hudson Canal Co. et al., 43 Pa. 295-a proceeding by quo warranto to control the improper exercise of corporate powers, and oust the corporation from the excessive exercise of themthe court said: "It is a matter of no importance to the parties whether this authority is exercised in the common law or in equity

tiff to disregard the contract, and sue on a quantum meruit for the lumber furnished under the contract.

Appeal from Circuit Court, Columbia County; Charles W. Smith, Judge.

Action by D. R. Smith against the Magnolia Compress Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was a suit brought by the appellee, D. R. Smith, against the appellant, Magnolia Compress Company, for the recovery of the value of a lot of lumber furnished the appellant by the appellee. The complaint alleged that appellee furnished the appellant 40,000 feet of rough lumber, worth $9 per thousand feet, to wit, $360; that he also furnished defendant 44,000 feet dressed lumber, worth $10 per thousand feet, to wit, $440; that there has been paid on said amounts the sum of $630, and there is due plaintiff $170, now past due. Wherefore he asks judgment for said sum, costs,, and other relief. The appellant answered, denying these allegations, and averring that the lumber furnished by appellee to appellant was on the following contract, to wit:

not interfered with, as it cannot be in this case." See, further, People v. Doesburg, 16 Mich. 133; State v. Burnett, 2 Ala. 140; State v. Allen, 5 Kan. 213. While some of the cases referred to, and many reviewed in those cases, are dealing with the question of public office, and their conclusions are different from the rulings of this court on the subject, yet it is thought that a consideration of them shows beyond question that, so far as franchises and corporate interests and property rights are concerned, it was thoroughly settled at common law that issues of fact were triable by jury. That being true, then that right is preserved to litigants by the Constitution. Therefore the court is of opinion that in quo warranto proceedings in courts of original jurisdiction, brought under the Code and statutory provisions, to annul, vacate, and cancel a charter or franchise or any other property right (not including title to public office), the right of trial by jury of issues of fact is a constitutional right.

The case is reversed, and the cause remanded, with directions to try the issues of fact by jury.

MAGNOLIA COMPRESS CO. v. SMITH. (Supreme Court of Arkansas. May 27, 1905.) SEVERABLE CONTRACTS-CONSTRUCTION.

Where a contract provided that plaintiff should furnish certain described lumber to defendant at a certain price, and that plaintiff should also have the bill for any other lumber defendant might need, the contract was severable; and a breach by defendant of the provision that plaintiff should have the bill for any other lumber it might need did not entitle plain

this the third day of April, 1899, by and between D. R. Smith and John Wilkerson, parties of the first part, and the Magnolia Compress Company, parties of the second part, all of the county of Columbia, and State of Arkansas, witnesseth:

"That the parties of the first part do hereby agree and bind themselves to furnish to the parties of the second part, the following bill, kind and quality of lumber, to wit: Two hundred and eight (208) pieces of lumber, 6x8, sixteen feet in length. Eight hundred and sixteen (816) pieces 2x10, sixteen feet in length, the same to be well sawed and strictly all heart, but rough and undressed. Two thousand one hundred and fifty (2150) pieces of lumber, 2x8, 12, 14 and 16 feet in length, to be well sawed and sized, and strictly all heart. The same to be delivered on the grounds of the said Magnolia Compress Company, in the town of Magnolia, Arkansas, at and for the sum of Seven and half Dollars ($7.50) per thousand feet. The same to be delivered on or by the aforesaid date, then they, the parties of the first part agree to pay the said parties of the second part $10.00 per day for each day after the 1st day of July, 1899, until said lumber aforesaid is delivered.

"And the said parties agree and bind themselves in consideration of the aforesaid agreement of the said parties of the first part aforesaid, being well and fully performed, to pay to the said parties of the first part, the sum of seven and half dollars ($7.50) per thousand feet for said lumber described aforesaid. The price herein named is for delivered lumber on the grounds of the

Magnolia Compress Company; it is also agreed that the parties of the first part shall have the bill of any other lumber that the Compress Company may need in the building, at the same price, $7.50 per thousand for rough lumber.

"In testimony whereof we hereunto set our hands and seals, this first day of April, 1899. D. R. Smith. John Wilkerson."

The appellant alleged that it had paid appellee for all the lumber furnished according to the terms of the contract $7.50 per thousand feet. Appellant then set up a breach of the contract on appellee's part, alleging "that the plaintiff failed to deliver said lumber on or by the 1st day of July, 1899, and never delivered same in full until about the 1st of August, 1899; that, by the terms of said contract, said defendant is entitled to recover from the said plaintiff the sum of $10 for each and every day that the plaintiff failed to deliver the said lumber in full after the 1st day of July, 1899; that by reason of said failure said defendant was damaged in the sum of $250." And appellant asked judgment against the appellee in that sum. The verdict was for appellee for $75, and judgment entered for that amount.

Magale & McKay, for appellant.

WOOD, J. (after stating the facts). The first question presented on this appeal is. conceding that appellant violated the second clause of the contract in evidence, by purchasing a car load of lumber from a third party, which was used by appellant in erecting its building, did this give appellee the right to ignore the terms of the contract as to the price of lumber which he had furnished, and to sue appellant therefor upon quantum meruit? The second clause reads: "It is also agreed that the parties of the first part shall have the bill of any other lumber that the Compress Company may need in the building, at the same price $7.50 per thousand for rough lumber." This clause of the contract is wholly independent of the first clause. There is nothing to indicate that it was a part of the inducement for the first clause. There are no reciprocal obligations in it. The compress company, under it, is bound to give appellee the bill of any other lumber it may need in its building at the same price ($7.50 per thousand); but there is nothing in the clause that can be

construed as binding appellee to furnish the lumber at the same price, or to furnish it at all. If appellant had called upon appellee to furnish more lumber than that called for in the first clause of the contract, at $7.50 per thousand, could appellee have been forced to furnish it? We think not. Could appellant have refused to pay for lumber furnished by appellee under the first clause, because of a failure upon the part of appellee to have furnished any amount appellant might have needed and demanded under the second clause? Certainly not. It is very clear from the language used in both clauses, that the parties did not intend that the enforcement of the first clause of the contract should be conditioned upon the performance of the second. We are of the opinion that the contract is clearly severable, and that the failure of appellant to perform the second clause would not justify appellee in treating the contract as discharged and rescinded, and suing upon the quantum meruit. The utmost that could be claimed would be that the breach by appellant would be a partial failure of performance on its part, that would give appellee the right to compensation in damages; the amount being the price designated for which the lumber was to be paid by appellant in case any had been furnished. The court erred in treating this as an entire contract, and in not granting appellant's second instruction request for (which reporter will set out in note). Lawson on Con. § 450; Jacob Weintz v. Hafner, 78 Ill. 27; 2 Parsons, Con. 672, note; Gatlin & Gibson v. Wilcox, 26 Ark. 309; Bertrand v. Byrd, 5 Ark. 657. See E. A. H. F. Co. v. Tanner, 67 Ark. 156, 53 S. W. 886.

For this error the judgment is reversed, and the cause is remanded for new trial.

1The following is the request for an instruction by defendant referred to in the opinion: "(2) The jury are instructed that if they find from the evidence that the compress company agreed with the plaintiff to give him a bill for any other lumber that it might need in the erection of its compress, and which lumber is not specified in the contract, and that the compress company failed to furnish the plaintiff with a bill for any or all of the lumber used in the erection of said compress, and not specified in the contract, and purchased same from other parties, that this will not constitute such a breach of the contract in this case as will entitle the plaintiff to recover the cash market value of the lumber at the time it was delivered."

MORRIS v. GREEN. (Supreme Court of Arkansas. May 27, 1905.) 1. CONTRACT-FORFEITURE-RELIEF.

Where an agreement secured is simply one for the payment of money, a forfeiture incurred by its nonperformance will be relieved against on payment of the debt, interest, and costs. 2. VENDOR AND PURCHASER CONTRACT OF SALE-VALIDITY.

A contract for the purchase of land providing for the payment of the price in installments, evidenced by notes, and also providing that on the payment of the notes, interest, and taxes, the vendor would execute a deed therefor to the vendee, and that, in case of default on the first payment, all the notes were to become due, and payments made on the purchase price were to be considered as rent, is valid.

3. SAME-FORFEITURE FOR NONPERFORMANCE -ESTOPPEL TO CLAIM.

Where the vendor, under the contract, permitted the vendee, who was an illiterate person, and who testified that he had no knowledge of the rent provision, to continuously and substantially improve the land after a forfeiture had been incurred by the strict letter of the contract, accepted the vendee's money, knowing that the vendee believed that each payment was reducing the debt on his land, and for over a year after the default retained the vendee's notes, which were negotiable, and on their face not due, and failed to notify the vendee that the contract was forfeited, he was estopped, in a court of equity, from insisting on the letter of the contract.

Appeal from Lonoke Chancery Court; John Fletcher, Special Chancellor.

Action by W. N. Morris against Eli Green for rent. From a judgment of a justice of the peace in favor of plaintiff, defendant appealed to the circuit court, and by consent the cause was transferred to equity, and consolidated with a suit by Green against Morris for specific performance of a contract for the purchase of the land in question. From a decree in favor of Green, Morris appeals. Affirmed.

Oliphint & Miles, for appellant. P. C. Dooley and Pugh & Wiley, for appellee.

HILL, C. J. Morris sold Eli Green a 40acre tract of land for $480. This agreement was verbal, made about March 1, 1897, and no written evidence of the contract was to be made until a payment on purchase price was made. Green went into possession at once, and commenced improving the land. On the 28th of October, 1897, Green paid Morris $45 on the purchase price, which payment was satisfactory to Morris, who then drew a written contract between them. This contract provided for the payment or the $480 in four equal, annual installments, evidenced by four notes executed by Green, due November 1, 1897, November 1, 1898, November 1, 1899, and November 1, 1900. The contract provided that on the payment of each of said notes, with accrued interest, and the taxes upon the land, Morris would execute a deed therefor to Green; and, in case of default upon the first payment, all the notes were to become due, and payments

made on the purchase price were to be considered as rent. The contract, on the face of it, was a valid one. Ish v. Morgan, 48 Ark. 413, 3 S. W. 440; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Block v. Smith, 61 Ark. 266, 32 S. W. 1070. Green was an ignorant negro, whose learning was limited to ability to sign his name. Morris was a business man. This contract was read over to Green and signed by him. The first note fell due two days after its date, and Morris admits that he knew Green could not pay it, and agreed to wait till the second became due before requiring payment of the balance of it; the $45 then being the only payment required. Green testified that under the original verbal contract, and the written contract as he understood it, he was to have four years to pay for the land, and, further, that he did not know of the rental provision in case of default. Conceding that his evidence is not sufficient to overcome the written contract (Goerke v. Rogers, 86 S. W. 837), pass to the subsequent conduct of the parties. In the fall of 1898 Green was owing, under the written contract, on the land, $195, and owing a store account to Morris of $169.05. To secure the latter, Morris had a crop mortgage. From the proceeds of his crop Green paid Morris in October $151.60. He says it was agreed that $100 should be paid on the land debt. Morris denies this, and asserts it was all paid on the store account. Morris says that Green then forfeited his contract, but fails to show any notice of such assertion of this claim to Green, beyond saying that he told his bookkeeper to tell Green. Green says he was not so notified, and the bookkeeper was not called. Green made several payments after this alleged forfeiture. According to Morris' books, his total payments were $184.92, which would be $33.32 after the October payment, and which would discharge the store account due of that date, and leave $17.45 to apply on the land. The chancellor found-and there is evidence to sustain it-that Green made further payments, which are not entered on Morris' books. Morris entered upon his books a charge against Green for rent, but the date of the entry fails to appear on the books. Morris did not return the notes till 1901. In November 1899, Morris received an offer from a responsible party, acting as Green's attorney, to pay all Green owed, and asking a statement of his account. Green also made an arrangement with a bank in November, 1899, to secure the money to pay Morris; the bank only requiring that Morris furnish a statement of the amount. Green positively and circumstantially testified to repeated demands for a statement from Morris, and was always refused or postponed, and always assured, until October, 1899, that he had four years in which to pay out this land. In October, 1899, Morris claimed that the contract was forfeited; and it was short

ly after that that Green made the arrangements to borrow the money to pay the balance, but could not secure a statement of it. From the time he went into possession till the alleged forfeiture, Green had put about $350 worth of permanent improvements on the land. In February, 1901, Morris attached Green's crop for rent. This case originated in justice court, and went to the circuit court on appeal; and in the circuit court Green filed an answer and cross complaint, averring that he had purchased the land, improved it, and paid $240 on the purchase price, and had repeatedly offered to pay the balance, and that he was imposed upon in the written contract, etc., and asked a transfer to equity, and prayed specific performance of the original contract upon payment by him of balance due. This case was transferred to the chancery court, and Morris filed an amended complaint, and alleged a misdescription of the land in the contract, and prayed a reformation of it, and that the purchase contract be forfeited, and he have judgment for rent. Green also brought suit in chancery for specific performance, which was consolidated with this transferred case. The chancellor found in favor of Green, ascertained the amount due on the purchase price, after all payments were credited, and decreed specific performance by directing Morris to make a deed upon the payment of said amount. This decree is right.

Morris testified that his intention in putting the forfeiture provision into the title bond was to secure the payment of the money, and not to enable him to get the land back. "It is well settled that, where the agreement secured is simply one for payment of money, a forfeiture either of land or chattels, etc., incurred by its nonperformance, will be relieved against on payment of debt, interest, and costs." Pomeroy, Eq. Jur. (2d Ed.) § 450. Moreover, the facts estop Morris from claiming a forfeiture of the purchase contract. This court approved this thoroughly sound principle of equity jurisprudence: "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 or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving him against it, if necessary." Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S. W. 562. In the first place, the default in the payment of the first note (due two days after its execution) was admittedly waived when the note was executed, and the performance of the contract in regard to it was not expected or required. Permitting this ignorant negro to continuously and substantially improve the land; to accept his money knowing that he believed, and with good reason, that each payment was reducing the debt on his land; to retain his notes for the purchase price (negotiable and on their face not due) for over

a year after the alleged forfeiture; to fail to notify him that the purchase contract was forfeited, and that all payments prior and subsequent thereto were rent payments -estops Morris, in a court of conscience, from insisting upon the letter of his contract. These facts, and more, are found in Green's evidence, which comes here accredited by the chancellor, and is strongly corroborated. In truth, the most of the essential facts are admitted by Morris. The decree is affirmed.

BOYNTON et al. v. ASHABRANNER.* (Supreme Court of Arkansas. May 27, 1905.) 1. EVIDENCE-BEST AND SECONDARY.

Kirby's Dig. § 3064, providing that a commissioner's transcript from the State Land Office shall be evidence of the facts therein stated, makes such certified copies of the records of equal dignity with the originals.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1302-1314.]

2. PUBLIC LANDS-DEED BY STATE.

A subsequent deed by the state reciting that the land agent granted a patent certificate to the grantee on a prior date, and that, the purchase money having been fully paid, the conveyance was made by the Auditor, was ineffective to avoid a state deed to another on a prior date, in the absence of proof rebutting the presumption that the prior grantee had surrendered a certificate prior to that of the subsequent grantee, or made a valid assignment of such certificate.

3. CONSENT DECREE-VALIDITY.

Where it appeared that a consent decree was entered between two terms of court, it was a nullity.

4. SAME.

A consent decree void because entered between two terms of court was not cured by a subsequent order, entered in term time. Du porting only to correct an error in the description of one of the parties.

5. ADVERSE POSSESSION.

A claim of ownership, payment of taxes, and the exercise of fitful, disconnected acts of possession, and the cutting of timber and firewood, were insufficient to establish adverse possession.

6. SAME-PAYMENT OF TAXES.

On an issue of title to property by adverse possession, a general statement of payment of taxes for 12 years is insufficient to overcome evidence of a tax receipt produced for one of such years by the opposite party. 7. SAME.

Where certain tax receipts described the land, by mistake, as the west half of the southeast quarter of a certain section, instead of the east half of such section, they were insufficient to support a title by adverse possession, under Kirby's Dig. § 5057, providing that unimproved and uninclosed land shall be deemed to be in possession of the person who pays the taxes thereon, if he have color of title thereto, etc.

Appeal from Mississippi Chancery Court, Chickasawba District; Edward D. Robertson, Chancellor.

Action by C. D. Boynton and others against Thomas Ashabranner. From a judgRement for defendant, plaintiffs appeal. versed.

Driver & Harrison, for appellants. W. J. Lamb and J. T. Caston, for appellee.

*For supplemental opinion, see 88 S. W. 1011.