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of opinion upon the part of the court upon ror, as it was but relieving the jury of the the weight of the evidence. It is further labor involved in it. The court gave the folurged against the third that it has singled lowing instruction on the subject: If your out certain parts of the evidence in favor of verdict should be for the plaintiffs, you will the plaintiff, and disregarded every item of assess the damage at such sum as will comcontributory negligence, and, wit ut refer- pensate them for their pecuniary loss resultring to the same, in a counter statement, has ing from the death of the husband and said the weight of this specific evidence is father. In estimating this loss, it is proper sufficient to set aside all the evidence estab- for you to take into consideration the age, lishing contributory negligence. If there is health, habits, occupation, expectation of life, evidence to sustain a particular theory of a mental and physical capacity for and dispocase, the court should properly instruct the sition to labor, and the probable increase or jury as to such theory. Smith v. State, 50 decrease of that ability with the lapse of Ark. 545, 8 S. W. 941. Instructions should time; his earning capacity; the care and atdeclare the law as applicable to any view of tention, the instruction and training, one of the facts which upon the evidence may be his disposition and character may be expecttaken by either of the parties to the cause on ed to give to his family—and thus dete mine trial. Luckinbill v. State, 52 Ark. 45, 11 S. the value of the life. From this amount deW. 963. Every instruction should be hypo- duct the personal expenses of deceased, and thetical, i. e., predicated upon the supposi- the balance, reduced to its present value, tion that, if certain evidence be true, then would be the present amount of your verdict, the legal consequence resulting therefrom is provided such of the deceased children as one way or the other. State Bank V. Mc- were minors at his death or at this time Guire, 14 Ark. 530; Collins v. Mack, 31 Ark. would not be entitled to any compensation on 684. It is error to refuse to give a specific account of death of deceased for a period beinstruction correctly and clearly applying the yond the time of their attaining their malaw to the facts in the case, even though the jority.” It is seen, therefore, that the court law, in a general way, is overed by th properly gave the elements to co der in archarge given. Ry. v. Crabtree, 69 Ark. 134, riving at the compensatory amount. If the 62 S. W. 64. Applying these settled princi- calculation was made, it was useful only to ples to the instruction in question, it cannot reach the probable amount required to purbe said they are open to the objections urged. chase the annuity to represent his income, Each side prayed and was granted many spe

and from such amount personal expenses cific instructions, covering phases of the case were directed to be deducted. which they desired drawn sharply to the at- 5. The verdict is assailed as excessive. It tention of the jury. The court fails to find is less, by the sum by $1,054, than the sum error in them, and, taken together, they con- representing the present value of his income. sistently present the whole case, generally Of course, his personal expenses should be and specifically.

deducted-likely much more than said $1,054 ; 3. Error is assigned to the refusal of the but, on the other hand, there was another court to give the sixth instruction. The dis- element proper to enter into the verdict, and tance from the center of the side track upon that was the loss of his care and attention to which the freight train stood to the center of his minor children. Railway v. Mathis, the main track, upon which the train was ap- Adm'r, 1 and cases there cited. The verdict is proaching, was 14 feet. It was therefore an not excessive. impossibility to have avoided the accident at The judgment is affirmed. that late moment. The mules drawing the wagon were on the main track before the BATTLE and RIDDICK, JJ., dissent wagon could have cleared the freight train, and the freight train behind them was whistling at that moment. The care is to be measured by the act of going into this danger, not

ST. LOUIS, I, M. & S. RY. CO. V. HITT. when it is too imminent for avoidance, and

(Supreme Court of Arkansas. July 1, 1905.) when excitement and danger dethrone judg

1. RAILROADS NEGLIGENCE COLLISION ment. The case was properly submitted un

WITH VEHICLE AT CROSSING-ACTION FOR der instructions fully explaining the care re- INJURIES CONTRIBUTORY NEGLIGENCEquired, and it was not error to refuse to give DUTY TO LOOK AND LISTEN-INSTRUCTIONS this one.

-ERROR.

In an action for injuries at a crossing, an 4. Objection is made to admission of testi

instruction that mere proof that plaintiff lookmony of a life insurance agent as to the ex- ed and listened on starting to drive on the pectancy of life, as shown by the mortality track, but did not look again, did not alone tables, of a man of Hitt's age, and an esti

establish contributory negligence, but that all

the circumstances should be considered, and if mate of the amount required to purchase an

from these the jury believed that plaintiff acted annuity equal to Hitt's income. These ta- as a reasonable man, he was not guilty of conbles were held admissible, and their uses ex- tributory negligence, was erroneous, as acquit

ting plaintiff of negligence in failing to look plained, in Ry. v. Griffith, 63 Ark. 491, 39 S.

and listen till danger was past, instead of W. 550. The record fails to show the calculation complained of, but it could not be er- 1 Rehearing pendirg.

charging him with such negligence, and then cause his own want of care is the author of leaving it to the jury to determine whether

his misfortune." In Martin v. Railway, 62 there were sufficient facts and circumstances to relieve a reasonably prudent person of such

Ark. 156, 34 S. W. 545, the court said: “We essential precaution.

do not hold that in every case where a trav. 2. SAME - CURING ERBOB - OTHER INSTRUC- eler fails to look and listen and is injured TIONS.

by a train while crossing a railway track, The rule of reading instructions together to see if the issues there are correctly presented

the case should be taken from the jury. It is inapplicable where an instruction given was is only when it appears from the evidence erroneous, and a correct instruction given was that he might have seen had he looked, or conflicting therewith, and the error was not might have heard had be listened, that his cured by such other instructions.

failure to look and listen will necessarily Appeal from Circuit Court, Nevada Coun

constitute negligence.” Applying these prin. ty; Joel D. Conway, Judge.

ciples to the instruction in question, the inAction by Luther A. Hitt against the St, struction tells the jury that failure to conLouis, Iron Mountain & Southern Railway tinue to look and listen does not alone estabCompany. Judgment for plaintiff, and de

lish contributory negligence. It is held in fendant appeals. Reversed.

the Crabtree Case that the court must tell B. S. Johnson, for appellant.

the jury that continuing to use the senses is

an essential part of the duty of looking and HILL, C. J. This case presents the same listening, and in the Cullen Case that failure questions as to the liability of the appellant to look and listen is evidence of negligence. which are presented in No. 5,506, St. Louis, Therefore the instruction conflicts with these Iron Mountain & Southern Ry. Co. v. Robert cases. But, as explained in the Martin Case, W. Hitt (decided this day) 88 S. W. 908. the failure to look and listen is not always This case was tried first, and in Nevada negligence. There may be circumstances, as county, and that case in Clark county, and there instanced, or where there is an invitabrought here on separate records, but have tion by the railroad, express or implied, been argued together. They arose from the which might relieve a prudent person from same occurrence. The facts will be found this duty. But all those matters are exculstated in the Robert Hitt Case. In this case patory, and the duty to continue to look and the court gave on behalf of the appellee the listen should be definitely put upon the following instruction: "(5) You are instruct- plaintiff', and, if there is sufficient evidence ed that mere proof that the plaintiff looked of exculpatory circumstances, then the whole and listened as he started to drive upon the question should go to the jury, and no part track, and that he did not look again, does of it be determined by the court. This in. not alone establish the contributory negli- struction acquits the appellee of negligence in gence, You should take into consideration failing to continue to look and listen till all the facts and circumstances in evidence, danger is past, instead of charging him with and if from these you believe that the plain- such negligence, and then leaving it to the tiff acted as a reasonable, prudent man, then jury to determine whether there are suffihe would not be deemed to have been guilty of cient facts and circumstances in evidence to contributory negligence." In Railway v. relieve a reasonably prudent person of this Crabtree, 69 Ark. 138, 62 S. W. 64, the court essential precaution for his own safety. said: “If he is struck and injured by a train It is insisted that, if this instruction is erat the crossing, which he might have seen roneous, it is cured by other instructions givhad he continued on his guard, it would not en on behalf of the appellant. None of the be sufficient on a trial for the injury for the other instructions reach to this exact point, judge to say generally that it is the duty of while they do state the law, in the main, one about to cross a railroad to look and correctly, on the duty of looking and listenlisten for trains, but he should go further, ing; and if they were construed as correctly and explain that this means that a traveler covering this important point of the case should continue to use his eyes and ears then they would be in conflict with this inuntil the track and danger are passed." In struction, and leave the jury at large which Railway v. Cullen, 54 Ark. 431, 16 S. W. 169, to follow. In such case the rule that reading Chief Justice Cockrill, for the court, said: the instructions together in order to see if "A failure to look and listen is therefore the issues are presented correctly cannot apevidence of negligence on his part; and if ply. Fletcher v. Eagle (Ark.) 86 S. W. 810; the injury is the consequent result, and his St. L. & N. Ry. V. Midkiff (Ark.) 87 S. W. want of precaution is unexplained by circum- | 446. stances which might mislead an ordinarily For the error in giving the Afth instruction prudent man to throw him off his guard, he the judgment is reversed, and the case recannot have reparation for the injury, be manded for a new trial.

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9. SAME_VOID SALE-COLOR OF TITLE. COWLING et al. v. NELSON et al.

A purchaser at a void partition sale does

not have color of title until the deed is deliver(Supreme Court of Arkansas. June 24, 1905.) ed to him. 1. PARTITION JUBISDICTION STATUTES- Cross-Appeals from Hempstead Chancery CONSTRUCTION.

Court; James D. Shaver, Chancellor. Under Kirby's Dig. 8 6060, providing that an action to partition land shall be brought

Action by S. C. Cowling, as guardian of where the land, or some part of it, is situated, Bettie Jones, an insane person, and others, the circuit court of a county in which land of a

against J. J. Nelson and another. From the decedent partly lies has jurisdiction of a suit to partition it, when the administration of the

decree, plaintiffs appeal, and defendants decedent's estate has been wound up and the bring a cross-appeal. Reversed in part. administrator discharged, notwithstanding section 6063, providing that an action to settle

Feazel & Bishop, for appellants. D. B. the estate of a deceased person must be brought

Sain and W. C. Rogers, for appellees. in the county in which the personal representative qualified, and section 6064, providing that an action for the distribution of the estate of

HILL, C. J. In 1895 Bettie Jones owned a deceased person, or its partition, must be an undivided half interest, and her nephew brought in the county where his personal rep- and niece Willie and Ola Jones owned the resentative qualified, and that the estate of the

other half, of a tract of land containing deceased was administered in another county. 2. SAME

about 330 acres, lying partly in Hempstead DESCRIPTION INSUFFICIENCY CURE.

county and partly in Howard county. They Insufficiency of the description of land par- inherited the laud. Bettie Jones was then titioned is cured by the parties having sold their and is now an insane person, and confined in interests in the land, and the purchaser having been put into possession and made a party to

the State Asylum. Ola Jones was born Authe partition suit.

gust 3, 1875, and Willie Jones was born July 3. SAME SALE CONFIRMATION-SUFFI. 15, 1882. On the 19th of August, 1893, the CIENCY.

then guardian of Bettie Jones filed a partiIt is not necessary that confirmation of the

tion suit in the Hempstead circuit court sale of land on partition shall appear of record by a formal order, to sustain the validity of

against Ola Jones and Willie Jones, alleging the sale, where it can be gathered from the the latter to be a minor, and set forth the whole record.

respective interests of the parties, and pray4. SAME-LIMITATION-VOID SALE.

ed a partition of the land, and, in the event When a sale of real estate on partition has

it was not found susceptible of partition, a been confirmed by a court having jurisdiction, the five-year statute of limitations runs in fa

sale thereof, and a division of the proceeds. vor of the purchaser at the sale against the Constructive service was bad against the departies thereto, although the sale is void.

fendants therein, and decree rendered find5. SAME-SALE-JURISDICTION.

ing the respective interests of the parties, Since at common law there was no right to obtain in partition proceedings a sale of the

and ordering partition, and appointing comproperty, Kirby's Dig. 88 5785, 5786, 5797, 5793, missioners to make partition. The commisauthorizing such sales when commissioners re- sioners made partition, and reported their port that partition cannot be made without

proceedings partitioning all the land, except great prejudice, and providing for report and confirmation thereof, and contribution of the

a 48-acre tract, which was afterwards sold proceeds, confer the only jurisdiction which the to appellee J. L. Reed. The report was concourt has to order the sale of real estate in par- firmed. Before dismissing the principal contition proceedings, and a sale without a report of commissioners showing necessity therefor is tention, which is over the 48-acre tract, the void.

other questions presented, attacking the 6. SAME-SALE FOR COSTS_VALIDITY.

whole proceeding, will be disposed of. The sale of land for costs is not an issu- It is contended that under section 6061, able fact in partition suits, and, when the court entertains it, it is going beyond its jurisdic

Kirby's Dig., providing that an action for the tion.

distribution of the estate of a deceased per 7. SAME-GUARDIAN AND WARD-POWER OF son, or its partition among his heirs, etc., GUARDIAN.

must be brought in the county where his perThe action of the guardian of an insane sonal representative qualified, as there was person in bringing a partition suit as to the

an administration of the estate of the anward's interest in real estate binds the ward to everything which the partition suit could valid

cestor in Howard county, the suit should ly accomplish.

have been brought there, and the Hempstead 8. BETTERMENTS COMPENSATION STAT- court was without jurisdiction. The section UTE-CONSTRUCTION.

just preceding this (6063) provides that an Under Kirby's Dig. $ 2754, providing that

action to settle the estate of a deceased perif any person, believing himself to be the owner, either in law or equity, under color of title, son must be brought in the county in which has peaceably improved any land which on ju- the personal representative qualified. These dicial investigation shall be decided to belong

sections were taken from the Civil Code, to another, the value of the improvements shall be paid by successful party before the court

which was opted when the Constitution of shall cause possession to be delivered, improve- 1868 was in force, and under it the probate ments made by a purchaser at a void partition jurisdiction was exercised in the circuit sale prior to the confirmation of the sale cannot be allowed for, even though the improve

courts, and there were no separate probate ments were made subsequent to the date of the

courts. These sections, therefore, were indeed.

tended to bring into the forum where the 88 S.W.-58

administration was pending actions settling, 227. Taking the whole record, the sale must distributing, and partitioning estates. Under be treated as confirmed. This precludes Ola the changed jurisdiction, the excellent rea- Murphy from maintaining this action to set sons for the enactment of these statutes aside the sale on the ground of the want of ceases, and, if given force, must not be ex- jurisdiction to render the judgment ordering tended. The evidence shows that the admin- this land sold to pay costs and attorney's istration on the estate of the ancestor was fees. The court had jurisdiction of the parwound up and the administrator discharged ties, and the other parts of the decree were before the partition suit was brought, and valid, and the exceptions to the application the reason, even under the former law, for of the five-year statutes of limitations on the applying this statute, would not be appli- part of purchasers at judicial sales do not cable, and a fortiori it is not applicable under apply. She was of full age when the decree the present system. Section 6060, Kirby's was rendered, and this action was brought Dig., provides that actions to partition lands more than five years thereafter. While proshall be brought where the land, or some ceedings based on void judgments cannot be part of it, is situated. The Hempstead cir- validated, yet it is competent to control accuit court had jurisdiction of the partition tions to set them aside by shorter statutes suit.

of limitations than the general statutes. The next objection is to the insufficiency of Freeman on Void Judicial Sales, 88 58, 58a. the description of the land partitioned. The This court has held that the five-year statute tracts (other than the 48-acre tract) are de- does not apply to judicial sales unless they scribed obscurely, to say the least of it; but are confirmed, because there is no sale until the parties have sold their interests in them, that act. Lumpkins v. Johnson, 61 Ark. 80, and the purchaser is in possession, and it was 32 S. W. 65; Morrow v. James, 69 Ark. 539, made a party to this suit. Whatever diffi- 64 S. W. 269. When confirmed, and the culties there may have been in locating the court has jurisdiction over the parties the tracts from the description is removed by five-year statute runs in favor of the purputting the purchaser into possession. The chaser at such sale against the parties therequestion is not open here.

to, although the sale is void. It is a statute That leaves only for consideration the 48- of repose, and if valid the purchaser needs acre tract. The commissioners, in their re- no limitation to ripen his title, and the mani. port partitioning the land, after reporting fest purpose of the Legislature was to apply that the parties had no other property, sug- it to void sales within the limitations mengested that a certain tract described therein, tioned. and containing 48 acres, be set aside and sold The lower court allowed until June to reto defray the expenses of the proceedings, deem on account of his minority, but re which they understood would be about $150. fused to allow Bettie Jones, the insane perThey reported that they had an offer of son, to maintain the action. On the theory $150 for this tract, which they considered a of a redemption from the sale, that decree fair price. The court confirmed their pro- may be right, but the case goes farther. Was ceedings in setting aside the various tracts, the sale of the 48 acres void? If so, then and approved their suggestion, and ordered the insane party and the minors both ought this tract sold to Reed for $150, to pay costs to be permitted to recover the land, not reand expenses, including an attorney's fee of deem it, subject only to Reed's right to bet$75 for the attorneys for the plaintiff in the terments under section 2754, Kirby's Dig. suit. The commissioners then sold the tract At common law there was no right in a to Reed for said sum, and executed him a tenant in common or other tenant to obtain deed therefor in December, 1895; and he in partition proceedings a sale of the propwent into possession and placed improve- erty. The courts had no jurisdiction to order. ments on the lands, and has held it since. a sale, but partition could be had as of right, At the April term, 1896, of the Hempstead even if partition was ruinous and inconcircuit court, this deed was presented to the venient to and undesired by all the other court, and an order was made in the case parties. Freeman on Co-tenancy & Partireciting that the commissioners produce to tion, $8 536, 539. To obviate hard cases the the court their deed to J. L. Reed for the various states have passed statutes permitland, and described it, and concluded, “which ting sales when partition would be prejuit in all things approved and confirmed by dicial to the rights of the parties. Kirby's the court.” While this related to the deed, Dig. $ 5785, provides that, when commissionyet it identified the prior transaction where ers report that partition cannot be made in the sale to Reed at this price was ordered, without great prejudice, the court may, if and must be treated as a confirmation of the satisfied that such report is true, order the sale. It is irregular and improper, because land sold to the highest bidder at public formal confirmation should always be en- auction. Such sales are made on terms pretered of record, yet the court has said that | scribed by the court, and have to be reported it was not necessary that confirmation ap- to and confirmed by the court, and deed is pear by a formal order to that effect, if it then ordered made. Sections 5786, 5792. The can be gathered from the whole record. proceeds, after deducting costs and expenses, Ousler v. Robinson, 72 Ark. 339, 80 S. W. are distributed according to the respective

interests. Section 5793. These statutes con- must be present; third, the point decided fer the only jurisdiction which the court has must be, in substance and effect, within the to order the sale of real estate in partition issue.” The sale for costs is not an issuable proceedings, as it is not an inherent right fact in partition suits, and, when the court of the parties to have it, and no jurisdiction entertains it, it is going beyond its jurisdicexisted to order it prior to these statutes, tional limits. In a case in Indiana the court and hence the jurisdiction must be exercised ascertained an amount as attorney's fees, conformably to the statutes. In this case and decreed it a lien on the lands, and sale the tract in question was not sold because was had thereunder. It was held the sale the land was incapable of partition without was void, as courts have no power to adjugreat prejudice, but, on the contrary, for the dicate matters not in issue and which could sole purpose, appearing on the face of the not be brought in issue. Hutts v. Martin, record, to pay the costs of the proceedings 134 Ind. 587, 33 N. E. 676. and the fees of the plaintiffs' attorneys, It is insisted that the guardian of Bettie taxed as part of the costs. The utmost that Jones bad authority to bring the suit, and can be said of the attorneys' fees are that his action within the limits of his express they were part of the costs, and as to wheth- authority would bind her. This is true, and er the court has, in amicable suits, any right his action bound her to everything which the to tax them as costs, is a question that the partition suit could validly accomplish-a courts are divided upon, but all agree that partition of the lands, and, where it is found in adversary proceedings they cannot be so incapable of partition without great prejutaxed. 21 Am. & Eng. Ency. (2d Ed.) p. dice, then a sale. These are the only issu1177, 1178. Costs are debts, and do not con- able matters to be presented. On them she stitute liens, other than general judgment is bound. Beyond them she is not. The liens, when they enter into a judgment. They | Indiana court in the case supra said: “Litiare not enforceable by sale of property, other gants do not place themselves for all purthan other debts are enforceable by execution poses under the control of the court, and it after proper proceedings. The statutes pre- is only the interests involved in the particuscribe methods to collect debts from minors lar suit that can be affected by the adjudicaand insane persons, but as to any person tion. Over other matters the court has no they are no more than other debts, and ex- jurisdiction, and any decree or judgment reemption and homestead and bankruptcy pro- lating to them is void." ceedings may avoid their collection. The The court, in finding the amount for Willie officers have full protection from performing Jones to pay for improvements, seemed to any service until their fees are paid in ad- have allowed for improvements made in vance. It is clear that in partition suits 1895. Reed's deed, wbile dated December 9, the land cannot be sold to pay costs, and the 1895, was not approved and the sale was not only question of moment is the effect of the confirmed till April 6, 1896. As the commisjudgment, on collateral attack, ordering it sioners procured its approval and presented done. In Collins v. Paepcke-Leicht Lumber it to the court, it is evident that it was not Co., 73 Ark. 84 S. W. 1044, in referring intended to deliver the deed till it was apto an order of probate court selling lands to proved by the court, and he had no color of pay costs of administration, the court said: title until the deed was delivered to him. He “But where its judgment shows affirmatively had color of title after the deed was apon the face that the court was proceeding proved and delivered to him, and he is entiin a matter over which it had no jurisdic- tled to improvements as prescribed by the tion, or acting beyond its jurisdictional lim- betterment act. its, such judgment is void.

* The The decree as to Ola Murphy (née Jones) is confirmation cures all irregularities in the affirmed, because she is barred. As to Willie sale or the order therefor, but not jurisdic- Jones it is reversed as to the amount he is tional defects. The order of sale here shows chargeable with, and as to Bettie Jones is affirmatively that it was made to pay ex- reversed. The cause is remanded, with dipenses of administration, and not debts of rections to enter judgment in favor of Bettie the decedent, and is therefore void.” The and Willie Jones for their respective interanalogy between the cases is strong. ests, subject to proper allowance for betterFalls v. Wright, 55 Ark. 562, 18 S. W. 1044, ments. 29 Am. St. Rep. 74, dower was assigned in lands of an estate not presented to the court in the petition for assignment of dower, and the action of the commissioners was con- NIAGARA FIRE INS. CO. V. BOON et al. firmed. This court held, so far as the land

(Supreme Court of Arkansas. June 24, 1905.) outside the petition was concerned, that it

1. APPEAL-TRIAL BY COURT-INCOMPETENT was aside from the issue, confirmation did

EVIDENCE-REVIEW. not cure it, and the sale was void. The As on trial de novo of a case heard before court approved this definition of jurisdiction: the chancellor, who is presumed to have disre"First, the court must have cognizance of

garded all incompetent testimony, the case is

weighed solely on the class of cases to which the one to be

the competent testimony,

questions relating to alleged incompetent eviadjudged belongs; second, the proper parties dence will not be discussed on appeal.

In

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