to burn or remove these trees from time to time, and to turn the land over at the expiration of five years cleared as called for by the contract. The circuit court held that under the contract the plaintiff was entitled to reenter and take possession of the land without regard to whether a tender had been made or not, and gave judgment in favor of the plaintiff. Defendants appealed.

N. T. White and Ben. J. Altheimer, for appellee.

RIDDICK, J. (after stating the facts). This is an action by plaintiff to recover possession of certain land which he had leased to defendants. The decision of the case turns on the construction of the following clause in the contract: "It is however, agreed and understood between the parties that the said E. W. Williams shall have the option, after the expiration of one year to take back the lands that have been cleared and placed in cultivation by the said Bunch & McKenzie, but in doing so he shall pay to the said Bunch & McKenzie the sum of $3.50 per acre, per annum, for each acre they may have so cleared as aforesaid until the expiration of the five years." The provisions of this contract are not altogether clear, but after consideration of the same we are of the opinion that the payment of the defendants for the clearing was a condition precedent to the right of the plaintiff to take back the land under this contract before the expiration of the five years. It is true that the evidence here shows that this land had not, at the time this suit was brought, been fully cleared as required by the contract, for there were at that time trees still standing on the land under 21⁄2 feet in diameter. But defendants, having put the land in cultivation during the first year, were not required by the contract to have it fully cleared during that year. Defendants had during the first year expended over $500 in improving this land, and it would be a harsh construction of the contract to hold that, as the land was not then fully cleared, plaintiffs could take it back and pay nothing for the work and labor expended by defendants. The time during which these trees were all to be taken from the land was not limited to the first year, and, if defendants had been permitted to retain the use of the land for the full term of five years to pay for the clearing, it would not have injured plaintiff, if the trees had been taken from the land before the expiration of the term of the lease. But counsel for plaintiff admit that defendants were entitled to some compensation for the work and labor expended on the clearing, but contend that this compensation was not to be paid before plaintiff re-entered the land, but afterwards. I feel some doubt about that point myself, but after consideration thereof the court has concluded that the contract required that a payment or tender of the amount due defendants for the clearing, what

ever it was, should have been made before commencing the action to recover the land.

It follows, therefore, that in our opinion the suit, being brought before any payment or tender was made, was premature. The judgment will therefore be reversed, and the case remanded for further proceedings.

McNUTT v. McNUTT et al. (Supreme Court of Arkansas. June 10, 1905.) 1. DEEDS-VACATION-CONSTRUCTIVE TRUSTFRAUD-DEGREE OF PROOF.

A mere preponderance of parol proof is insufficient to establish a trust ex maleficio on real property and to set aside an absolute deed, but the fraud relied on for that purpose must be clearly established.

2. SAME EVIDENCE.

Complainant and his sister conveyed certain land to defendant, their mother, in consideration of $5 and other good and valuable considerations, which defendant claimed she had purchased and paid for, with the exception of $200 paid by her husband, and had the land conveyed to plaintiffs. Plaintiffs testified that defendant obtained the conveyance by representing that she wanted to sell the property to P., and agreeing to divide the purchase price between the plaintiffs, which defendant denied; claiming that the conveyance was executed in justice to her, in order that she might have a home. Complainant did not bring the suit until more than three years after the deed was given, during which time he was impecunious, and had solicited his mother to build a small house on the property and rent it to him. Held, that such facts were insufficient to justify a decree setting aside the deed and establishing a trust ex maleficio.

Appeal from Miller Chancery Court; James D. Shaver, Chancellor.

Action by A. B. McNutt and another against Margaret A. McNutt. From a decree in favor of plaintiffs, defendant appeals. Reversed.

Scott & Head, for appellant. William F. Kirby, for appellees.

RIDDICK, J. This is an action by a son and a daughter against their mother to cancel a deed executed by them, conveying to her two lots in the city of Texarkana, and the improvements thereon, on the ground that the conveyance was procured through fraud. The facts are that one A. B. McNutt purchased the two lots mentioned, paying $200 cash, and agreeing to pay a balance of $600 in installments of $25 each. His wife, Mrs. Margaret A. McNutt, the defendant in this action, claims that she paid all of the purchase money, except the $200 paid by her husband in cash. By the consent of herself and her husband, their vendor executed a deed conveying the lots to their two children, who are the plaintiffs in this case. After these children became of age and were married, they executed a deed conveying these lots to the defendant, their mother. The deed recites that it was executed "for and in consideration of the sum of five dollars and other good and val

uable considerations paid by Margaret A. McNutt." But the plaintiffs, and also the wife of one of the plaintiffs, testify that the defendant procured the execution of the deed by telling her son and daughter that she desired to sell the property to Mrs. Preston, who, she said, was willing to pay $1,500, for it, but that Mrs. Preston would not purchase from the plaintiffs, but insisted upon having a conveyance from defendant. The defendant then proposed that plaintiffs convey the property to her; promising that she would convey it to Mrs. Preston, and divide the purchase price between the plaintiffs. They say that they made the conveyance, but that the defendant refused to carry out her part of the contract, and still retains the property, in fraud of their rights. The defendant answered the complaint, and denied that she had procured the property as alleged in the complaint. But she states that, she having paid a large part of the purchase money, the plaintiffs, her children, when they became of age, as a matter of justice, executed the deed conveying the lots to her for love and affection, in order that she might have a home, and that she is the owner thereof, both in law and equity.

The chancellor found the issues in favor of the plaintiffs, and the question presented by the appeal from his judgment is mainly a question of fact. But this is an effort to have a court of equity impose a trust ex maleficio upon real property, and to change the beneficial title to such property by parol evidence from the defendant to plaintiffs. In order to justify a court in granting such relief, the fraud alleged should be clearly established. A mere preponderance of the evidence is not sufficient to obtain such relief. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; Tillar v. Henry (Ark.) 88 S. W. 573. Now, the plaintiffs do testify positively that their mother obtained the property in the manner alleged, but there are undisputed facts in the case which cast a suspicion upon the justness of their claim. This deed that they say was procured by fraud was executed on the 11th of June, 1900. As Mrs. Preston lived in Texarkana, near where they lived, they must have discovered the fraud of their mother only a short time afterwards, but it was nearly three years afterwards before they brought this action to set the deed aside. There is nothing to show that the daughter ever asked her mother to perform her part of the contract or pay her for the lots. The son, A. B. McNutt, testified that he did ask his mother two or three times to sell the lots and pay him his part of the proceeds, but she denies that he did so. The testimony and his own letters read in evidence show that he was poor, and had to borrow money from his parents. In several of these letters he asks them for financial assistance, but in none of them does he men

tion the fact that his mother owed him anything for this land. On the contrary, in several of these letters he refers to the lots as her property, and offers to rent one of them from her if she will put up a small house on it. These letters written by plaintiff A. B. McNutt commence only a month or two after the deed was executed by plaintiffs to their mother, and continue at intervals for a year or two. If his mother had perpetrated such a gross fraud upon him in reference to this deed, it is remarkably strange that, though he several times refers to this property in his letter as his mother's property, he never refers to or hints at the fraud which he now testifies that she committed in reference thereto. These letters, it seems to us, completely overthrow the testimony of this plaintiff in reference to the acts of his mother, for it is inconceivable that she should have committed such a fraud, and that he should never have mentioned it in letters which refer to the property. The parties who testify to this fraud are all interested parties, and one of them the wife of one of the plaintiffs, of doubtful competency as a witness. But it is unnecessary to discuss that point, for it seems to us that, considering all the evidence, it does not make out a case clear enough to justify the court in granting the relief asked, and in changing the title to this land.

On the whole case, we are of the opinion that the chancellor erred in his decree in favor of plaintiffs. The judgment will therefore be reversed, and the cause remanded, with an order to dismiss the complaint for want of equity at the costs of the plaintiffs. It is so ordered.

BROOKS, NEELY & CO. v. YELL COUNTY. (Supreme Court of Arkansas. June 17, 1905.) CONDEMNATION - RECEIPT OF DAMAGES-ES

TOPPEL.

Where a landowner, after condemnation of a highway over the land, received the damages assessed, he was estopped from claiming the land appropriated, and could not, without the consent of the county, restore his rights by a return of the money.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 442-444.]

Appeal from Circuit Court, Yell County; William L. Moose, Judge.

Condemnation proceedings by Yell county against Brooks, Neely & Co., on the laying out of a highway, and from the judgment of condemnation, the landowners appeal. Affirmed.

J. M. Parker, for appellants.

BATTLE, J. Yell county was entitled to the condemnation of a portion of the lands of Brooks, Neely & Co. for a certain public highway over the same. The land was condemned for that purpose, and the damages

caused thereby, were assessed, and a county warrant was issued to them therefor, and was received and collected by them. They cannot now contest the right of the county to the land so condemned. The warrant was issued in payment of such damages, and they were not entitled to hold it to satisfy damages that might thereafter be assessed in another proceeding to condemn other lands of theirs for the same highway. Having received and collected it, they accepted it for the purpose for which it was issued, and are estopped from claiming the land appropriated for the highway, and cannot, without the consent of the county, restore their rights by the return of the money received on the warrant.

A vendor sold 40 acres off the west end of the south half of a quarter section, but by mistake the deed described the land as the southwest quarter of the quarter section, which contained 23 acres. The vendor sold the rest of the quarter to a subsequent purchaser, who had notice that the vendor had sold 40 acres to a prior purchaser, who was in the actual and open possession of 8 acres of the land conveyed to the subsequent purchaser. Held, that the first purchaser's possession was equivalent to actual notice of his rights, and he was entitled, as against the subsequent purchaser, to a reformation of his deed.

2. SAME-ALLEGATION AND PROOF-DecreeVARIANCE-EFFECT.

In a suit by a purchaser for the reformation of his deed, the complaint and proof showed that he was entitled to 40 acres off the west end of the south half of a quarter section, while the decree awarded to him the southwest quarter of the quarter section, containing 23 acres, and 17 acres off the west side of the southeast quarter of the quarter section. A subsequent purchaser contested the right to reformation, but raised no question as to the variance between the proof and the decree. Held, that the court on appeal would not disturb the decree because of the variance.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by Aaron S. Lockhart against Fannie Thalheimer and others. From a decree for plaintiff, certain of the defendants appeal. Affirmed.

This is a suit by appellee, Lockhart, against appellants Fannie Thalheimer and her husband, Ben S. Thalheimer, and John F. Smith, for the reformation of a deed executed by appellant Smith to appellee.

It is alleged in the complaint that Smith was the owner of the northwest quarter of section 6, in township 2 north, range 14 west, and on December 19, 1900, agreed to sell and convey to appellee 40 acres off the west end of the south half of that quarter section for the sum of $100; that appellee paid the price, and Smith undertook to convey the

land, and, by mistake in the preparation of the deed, the land was described as the southwest quarter of said quarter section, which, according to the government survey, was fractional, and contained only 23 acres; that Smith subsequently sold and conveyed the remainder of the quarter section to appellant Fannie Thalheimer, who bought with the full notice of the previous sale of 40 acres to appellee. Thalheimer and wife answered the complaint, denying that Smith sold appellee any more land than that described in the deed, and that Fannie Thalheimer bought without notice of the sale to appellee. The chancellor gave a decree in accordance with the prayer of the complaint for the reformation of the deed so as to describe the 40 acres of land claimed by appellee, and the Thalheimers appealed.

Mehaffy & Armistead, for appellants. W. S. McCain, for appellee.

MCCULLOCH, J. (after stating the facts.) Appellee and Smith both testify to the same effect, that, under the purchase, appellee should have 40 acres of land, and that the deed should have described it. As against Smith, appellee's right to a reformation of the deed is clearly established, the only question in dispute being whether Mrs. Thalheimer under her subsequent purchase took without notice.

Smith testifies that, when he agreed with Thalheimer (who made the trade as agent of his wife) for the sale, he informed the latter of his previous sale of 40 acres to appellee, and that he proposed to sell the remainder. At the time of appellee's purchase there was open and in cultivation on the place about 15 acres, all but about 2 acres being on the 23-acre tract (fractional southwest quarter of northwest quarter). The remaining two acres of open land was in the same inclosure, but on the southeast quarter of said northwest quarter. Appellee at the time of his purchase occupied the land as Smith's tenant, and immediately after his purchase he moved the east line of his fence so as to enlarge his inclosure and include about eight acres of the southeast quarter of the northwest quarter. He cleared several acres of this addition to his inclosure, and was occupying the whole when Mrs. Thalheimer purchased. She purchased without any actual notice of appellee's occupancy, and appellee did not place his deed of record until after the sale to Mrs. Thalheimer. But she was informed by Smith that he had previously sold 40 acres to appellee, and, when she purchased, appellee was in actual, open, and visible possession of 8 acres of the land which Smith conveyed to her. Such possession was equivalent to actual notice of the title, rights, or equities of the occupant. Hamilton v. Fowlkes, 16 Ark. 340; Jowers v. Phelps, 33 Ark. 465; Sisk v. Almon, 34 Ark. 391; Bird v. Jones, 37 Ark. 195; Rockafellow v. Oliver, 41 Ark. 169; Atkinson

v. Ward, 47 Ark. 533, 2 S. W. 77; Watson v. Murray, 54 Ark. 499, 16 S. W. 293; Kendall v. Davis, 55 Ark. 318, 18 S. W. 185; Strauss v. White, 66 Ark. 167, 51 S. W. 64. Mrs. Thalheimer purchased, therefore, with notice of appellee's equities, and the reformation can be enforced against her.

Appellee claims in his complaint 40 acres off the west end of the south half of the northwest quarter, and the court so decreed by reforming the deed so as to embrace 17 acres off the west side of the southeast quarter of the northwest quarter, in addition to the fractional southwest quarter of the northwest quarter; but the testimony of appellee and Smith both shows that according to agreement he was to have 40 acres in the southwest corner of the quarter section, and the decree should have been for a reformation according to that agreement. However, appellants contested the right of appellee to any reformation at all, and raise no question as to this variance, so we will not disturb the decree on that account. Decree affirmed.

ROBINSON et al. v. NORDMAN et al. (Supreme Court of Arkansas. June 10, 1905.) 1. ADVERSE POSSESSION POSSESSION

PREDECESSORS-TACKING.

-

OF

A grantee whose adverse possession, added to the continuous adverse possession of his predecessors in title, exceeded seven years, had title by adverse possession.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 213–217.] 2. SAME-POSSESSION UNder Color OF TITLE.

A grantee took possession of land by virtue of his deed, and held adversely for about six years, when the land was overflowed, compelling the occupant to leave it. During the six years the grantee cleared a part of the land and made other improvements on it. Because of his acts of exclusive ownership, the land became generally known as his land. During the year of the overflow it remained idle. Subsequently he planted trees on the land. No one questioned his possession for about nine years. Held, that he acquired title by adverse possession.

Appeal from Woodruff Chancery Court; Edward D. Robertson, Chancellor.

Suit by Frederick Nordman and another against S. C. Robinson and others. From a decree for plaintiffs, defendants appeal. Reversed.

Blackwood & Williams, for appellants. Thos. C. Trimble, Joe T. Robinson, and Thos. C. Trimble, Jr., for appellees.

BATTLE, J. Frederick Nordman and Joseph M. Schmunch brought a suit in equity against S. C. Robinson and others, asking that their title to the north half of the northwest quarter, and northwest quarter of the northeast quarter, and the southwest quarter of the northwest quarter, of section 34, in township 4 north, and in range 3 west,

be quieted. Robinson answered, and asked for the same relief. An action by Robinson and others, brought against Nordman to recover damages for cutting timber on these lands, was consolidated with the suit instituted by Nordman and Schmunch. The chancery court rendered a decree quieting the title of Nordman and Schmunch to the land as against the defendants to their suit, and the defendants appealed.

Robinson's title to the lands in controversy depends solely upon the statute of limitations. The state of Arkansas executed to Rachel Mayberry a donation deed for the northwest quarter of said section 34. She held adverse possession under this deed for many years, and conveyed to one McBride, and he held under his deed for several years, and conveyed to another, and each grantee conveyed to another until it was conveyed to Robinson. Each held adverse possession until he conveyed, and the aggregate possession of all exceeded seven years. So Robinson acquired title by adverse possession to this part of the land in controversy.

On the 22d day of December, 1892, J. T. South by deed pretended to convey to Robinson the north half of section 34. Robinson took possession of the land under this deed on the 28th of December, 1892, and held adversely until sometime in 1898 or 1899, when an overflow came and flooded the land. One witness testified that it drove every one out of the vicinity of the land, except himself. During the six years prior to the flood, Robinson rented the land, from year to year, to tenants, and they raised and gathered crops thereon, and Robinson cleared a part of the land and made other improvements on it. Such were his acts of exclusive ownership that the land became generally known as the "Robinson land." He endeavored to rent it to a tenant for the year 1899, but on account of the overflow was unable to do So. For that year it remained idle. The visible and well-known effects of an extensive, notorious, and disastrous flood, doubtless, clearly indicated that he had not abandoned it, but that he had been forced to discontinue cultivation of it temporarily. There still remained on it a farm of 60 acres, susceptible of cultivation, and it was unreasonable to presume that he had abandoned it after a continuous cultivation for six years. In 1901 he planted 300 Texas pecan trees on it. No one interfered with or questioned his possession until June, 1901. For seven years under color of title, we find, he remained in the open and adverse possession of the north half of section 34, in township 4 north, and in range 3 west, and thereby acquired title thereto. Downing v. Mayes, 153 Ill. 330, 38 N. E. 620, 46 Am. St. Rep. 896; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; Hamilton v. Boggess, 63 Mo. 233.

Reverse, and remand for decree and proceedings consistent with this opinion,

1. HOMESTEAD

ISBELL v. JONES et al. (Supreme Court of Arkansas. June 10, 1905.) EXEMPTION FROM LIENSCONVEYANCE-ATTACK BY CREDITORS. Under Const. art. 9, § 3, declaring that the homestead is not subject to the lien of any judgment or decree of any court, or sale under execution, except in certain cases, an ordinary judgment creditor cannot complain of the conveyance by the judgment debtor of his homestead as fraudulent, nor reach the property so conveyed in the hands of the grantee.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, 88 118123.]

Under the express provisions of Kirby's Dig. § 3902, a debtor's right of homestead is not forfeited by his omission to select and claim it as exempt before sale on execution, nor by his failure to file a description or schedule of the same in the recorder's or clerk's office, but he may select and claim it after or before a sale on execution.

Appeal from Circuit Court, White County; Hance N. Hutton, Judge.

Suit by Ben Isbell against George W. Jones and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ben Isbell, in pro. per. J. N. Cypert, for appellees.

BATTLE, J. George W. Jones owned a certain tract of land in White county, in this state. He conveyed it to his wife, L. M. Jones. J. A. Godsey recovered a judgment against him at the January, 1896, term of the White circuit court for $385.65, and $25 for damages. On the 31st day of January, 1896, Godsey caused an execution to be issued on the judgment, directed to the sheriff of White county, and caused him to levy on the land to satisfy the same. On the 11th day of March, 1896, after having advertised the land for sale, the sheriff undertook to sell the same to Ben Isbell, he being the highest bidder therefor, and on the 5th of July, 1897, pretended to convey it to Isbell, no one having redeemed it. On the 17th day of October, 1899, George W. Jones and wife, L. M. Jones, conveyed the land to E. E. Jones, who conveyed it to J. R. Blessing, and he took possession thereof. Some time in May, 1901, Isbell brought a suit against George W. Jones and his wife, L. M. Jones, E. E. Jones, and J. R. Blessing, in the White chancery court, which was afterwards transferred to the White circuit court, to recover the land, and to set aside the deeds executed by Jones to his wife, and by Jones and wife to E. E. Jones, and to Blessing by E. E. Jones. Judgment was rendered by the court in favor of the defendants, and plaintiff appealed.

The land was occupied as a homestead by George W. Jones and wife from the time he acquired it, which was before the rendition of the judgment in favor of Godsey, and at all times thereafter until they conveyed it, 88 S.W.-38

on the 17th day of October, 1899, to E. E. Jones. George W. Jones was a married man and a resident of this state, and the tract of land in controversy, occupied by him as a homestead, was outside of any town or city, and did not contain exceeding 80 acres. Under the Constitution of this state, it was not "subject to the lien of any judgment or decree of any court, or to sale under execution, or other process thereon, except such as may be rendered for the purchase money, or for specific liens, laborer's or mechanic's liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them, and other trustees of an express trust, for moneys due from them in their fiduciary capacity." Article 9, § 3. Judgments for damages caused by torts are not excepted. There was no restraint upon his selling or conveying it. Creditors cannot, therefore, lawfully complain of it being fraudulently conveyed. "They could not reach it if not conveyed, and the motive for the conveyance does not concern them." His grantee can hold the land, notwithstanding the judgment against him. Stanley v. Snyder, 43 Ark. 429; Carmack v. Lovett, 44 Ark. 180; Bogan v. Cleveland, 52 Ark. 101, 12 S. W. 159, 20 Am. St. Rep. 158; Campbell v. Jones, 52 Ark. 493, 12 S. W. 1016, 6 L. R. A. 783; Davis v. Day, 56 Ark. 156, 19 S. W. 502; Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241; White Sewing Machine Co. v. Wooster, 66 Ark. 382, 50 S. W. 1000, 74 Am. St. Rep. 100; Gray v. Patterson, 65 Ark. 373, 46 S. W. 730, 1119, 67 Am. St. Rep. 937. Under the statutes of this state, it was not necessary for him (George W. Jones) to file a schedule to protect the homestead against a judgment or execution. Kirby's Dig. § 3902.

Judgment affirmed.

ST. LOUIS & S. F. R. CO. v. THOMPSON, YONT & CO.

(Supreme Court of Arkansas. June 17, 1905.) RAILROADS-NEGLIGENCE-INJURIES TO ANIMALS ON TRACK-ARBITRARY DISREGARD OF TESTIMONY BY JURY-SUBMISSION TO JURY.

In an action against a railroad for killing plaintiff's cow, evidence examined, and held not to present a case of arbitrary disregard of evidence by the jury, but one of a conflict in the testimony, rendering proper the submission of an issue of fact.

Appeal from Circuit Court, Madison County; John N. Tillman, Judge.

Action by Thompson, Yont & Co. against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

L. F. Parker and B. R. Davidson, for appellant. E. B. Wall, for appellee.