511; The People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162.

The statement of the prosecuting attorney in his closing argument that "the case is so cruel and barbarous that it is without a parallel in the history of crime" was only the expression of his opinion as to the gravity of the crime as shown by the evidence, and the ruling of the court thereon furnishes no ground for reversal.

On the whole case we find no reason to overturn the judgment of the circuit court, and it is therefore affirmed.

In an action by the mother of a deceased wife against the surviving husband to recover personal property owned by the wife at the time of the marriage, evidence held to support a finding that the husband had acquired the property by gift from the wife.

Appeal from Circuit Court, Yell County, in Chancery; William L. Morse, Judge.

Action by Fanny Carter against I. R. Reeves. From a judgment for defendant, plaintiff appeals. Affirmed.

Sellers & Sellers, for appellant. H. M. Jacoway, Jr., and Walter D. Jacoway, for appellee.

HILL, C. J. The widow of one Jeff Howell was possessed of about 600 acres of land, about 150 in cultivation, and considerable personal property of the kind usually appertaining to farms, and all of it was derived through her marriage to Howell. She married the appellee, Reeves, and he took up his abode in the mansion of the former husband, and entered into the possession and enjoyment of the estate as if he was the founder thereof, instead of the successor in the affections of the widow of the former owner. He exercised control and management of the property, real and personal; and both he and his wife were industrious, and applied themselves to the farm work assiduously, but the testimony leaves doubt whether to the betterment of the farms or not. Reeves says he had about $550 in money and personal property, which went into the common fund in farming this property. There is a serious conflict, partially growing out of statements of Reeves when he had a "wee bit too much," as to the extent of his personal property which he claims was devoted in the husbanding and care of the property. These matters are not important, for the case hinges on whether the wife gave him the personal property. Mrs. Reeves died about nine years after her marriage to Reeves, and this is a suit by her mother to recover the personalty, and Reeves claims it under a gift from his wife. The chancellor

found that it was given to him, and the mother has appealed.

Reeves testifies positively to the gift, and he is corroborated by five of the intimate friends and neighbors of the family, who testified to repeated statements made by Mrs. Reeves that she had given this property to her husband, and wanted him to have it when she died. He is also corroborated by the character of his control and possession of it, which seems to have impressed some of the witnesses as if he was the owner. On the other hand, his testimony on other points is contradicted. Members of Mrs. Reeves' family knew nothing of the gift of the property to Reeves, although they were intimate with her, and to some she appeared to be manager of the farm, and some testify that Reeves consulted her and obtained her consent to exercise acts of ownership. The contention is made that the decree is not sustained by the evidence, and that the evidence of the gift from wife to husband-considering the fiduciary relation-is not sustained by that quantum of proof required in such transactions. The preponderance is decidedly with Reeves, and, considering the persuasive effect accorded the chancellor's finding, the court cannot say the gift is not sufficiently proved in this case. The husband and wife were evidently congenial and affectionate. She had no children by Reeves, and was bereft of the one child of Howell's; and as the property of each, much or little, was used for the common benefit, it is natural that she should dispose of it as Reeves and her neighbors say she did.

The judgment is affirmed.

BATTLE, J., absent.

CARPENTER v. SMITH.

(Supreme Court of Arkansas. July 29, 1905.) 1. EVIDENCE-SECONDARY EVIDENCE-FOUNDATION-LOSS OF ORIGINAL.

An exemplification of the records of the state land commissioner is not the best evidence of a patent, and is not competent to prove the patent, in the absence of a showing of the loss thereof or an accounting for its absence.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 1303.]

2. QUIETING TITLE-PROOF OF TITLE-NECES

SITY.

Plaintiff in a suit to quiet title must show title in himself.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Quieting Title, § 36.]

3. ADVERSE POSSESSION-POSSESSION UNDER TAX DEED-SUFFICIENCY.

Possession under a tax deed for more than two years, evidenced by fencing the land with a substantial wire fence, repairing the fence in case of a break, and using the land for hog cutting part of the time, and leasing the same at another time, such possession being open, continuous, and adverse, gives title to the possessor, under Kirby's Dig. § 5061, declaring that no action for the recovery of lands shall be maintained against the purchaser at a tax sale unless the plaintiff or his predecessor was seised

or possessed of the lands within two years next before the commencement of suit.

4. TAX SALE-ACQUISITION OF VOID TITLE-ESTOPPEL TO ASSERT.

The fact that taxes assessed against land had been paid by defendant or his grantors, and that the land should not have been sold for nonpayment of taxes, and that a tax title based on such a sale was void, did not preclude defendant or his grantors from acquiring the tax title for the purpose of strengthening their title, nor estop defendant from setting up adverse possession under the tax title.

5. ADVERSE POSSESSION - POSSESSION UNDER TAX TITLE-INVALIDITY OF TAX DEED.

Under Kirby's Dig. § 5061, providing that no action for the recovery of lands shall be brought against a purchaser at a tax sale unless plaintiff or his predecessor was seised of the lands within two years next before the commencement of such action, the fact that a tax title is void does not affect a title acquired by adverse possession thereunder.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 462.]

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor.

Suit by W. M. Carpenter against John Y. Smith. From a decree for defendant, plaintiff appeals. Affirmed.

H. A. & J. R. Parker, for appellant. John L. Ingram, John F. Park, and Geo. C. Lewis, for appellee.

WOOD, J. Appellant filed suit against appellee to quiet his title to the land in controversy and cancel certain deeds alleged to be clouds thereon. The answer denies appellant's title, and sets up title in appellee from two separate and distinct courses, pleads the two-years statute of limitations, and laches and stale claim. Appellant alleged title from the state of Arkansas by swamp-land patent to Robert B. Southard, one of his alleged grantors. To prove the patent he offered in evidence an exemplification from the records of the State Land Commissioner. No showing was made as to loss of the original patent, and exception was taken to the introduction of this testimony. From what we have said to-day in the companion case of Carpenter v. Dressler,1 submitted with this, following the decisions of this court in Steward v. Scott, 57 Ark. 158, 20 S. W. 1088, and Driver v. Evans, 47 Ark. 300, 1 S. W. 518, the appellant did not show title in himself through mere conveyances from the government. After exceptions were filed to the exemplification of the records of the State Land Commissioner to prove patent in Southard, the first grantor, appellant made no offer to produce the patent or to show its loss, and did not ask for a postponement to be allowed to do so, evidently relying upon such exemplification as coinpetent and proper evidence. This was not the primary, and therefore best, evidence, and could not, according to the rule announced, be substituted for it without first showing the loss, or accounting for the ab

Rehearing pending.

88 S.W.-62

sence of the best evidence. Appellant therefore fails to prove title in himself. This was necessary before he could remove cloud. He must first show that he has title to quiet. St. Louis Refrigerator and Wooden Gutter Co. v. Thornton (Ark.) 86 S. W. 852. This alone is sufficient to affirm the decree of the lower court. But we are also of the opinion that the plea of the two-years statute under tax deed is sustained by the proof. It appears that on the 13th day of June, 1892, the land in controversy was sold at tax sale for the nonpayment of the taxes of 1891, and the clerk of the county court of Arkansas county issued on this sale (the land not having been redeemed) to appellee's grantor, William Chesshire, a clerk's tax deed therefor dated July 11, 1894. On the 25th day of March, 1895, Chesshire conveyed the land in question to appellee, John Y. Smith. In March, 1897, appellee inclosed the entire tract of land with a substantial fence, and has held open and adverse possession thereof ever since. This suit was filed in the clerk's office of Arkansas county June 7, 1900, and therefore appellee had held open, continuous, adverse possession of said land for more than three years prior thereto.

It is unnecessary to set out in detail the testimony upon which our conclusion is reached. The testimony shows that as early as February, 1897, appellee's grantor, Chesshire, fenced from three to six acres for the purpose of penning cattle, and that late in the spring of that year the entire tract was fenced with a three-wire fence. The wire was galvanized, and the posts set 16 feet apart. The fence was shown to be the best in that neighborhood. The land was fenced for the purpose of preserving it for hog cutting, and it was used for that purpose some in 1898 and 1899, and in 1900 was leased. It was shown that the fence was broken down in places, but this was repaired, and there is no evidence to warrant the conclusion that possession of the land was ever abandoned after it was taken in the manner indicated. On the contrary, the preponderance of the evidence clearly shows that the land was looked after and the possession maintained, open, continuous, and adverse till the bringing of this suit. Two years of such possession under his tax deed was sufficient to give appellee title. Section 5061, Kirby's Dig.; Helena v. Horner, 58 Ark. 157, 23 S. W. 966; Cooper v. Lee, 59 Ark. 460, 27 S. W. 970; Woolfork v. Buckner, 60 Ark. 163, 29 S. W. 372; Finley v. Hogan, 60 Ark. 499, 30 S. W. 1045; Woolfork v. Buckner, 67 Ark. 411, 55 S. W. 168; Crill v. Hudson, 71 Ark. 390, 74 S. W. 299; Boynton v. Ashabranner (Ark.) 88 S. W. 568.

But it is contended that an agreement between appellant and appellee at the trial that the taxes had been paid since 1875 by Hopkins, the original grantor, and his grantees, precludes the appellee from setting up the two-years statute. The agreement was

tantamount to saying that the taxes had been paid by appellee or his grantors, and hence there should have been no forfeiture and sale of the land for taxes, and that the tax title was therefore void. But we fail to see how this could have prevented appellee or his grantors from acquiring such title for the purpose of quieting and strengthening such title as they had or claimed. Nor do we understand how appellee could be estopped from setting up adverse possession, if he chose, under this void tax title. If he or his grantors paid the taxes, then surely it was no fault of his that the lands were improperly forfeited and sold for taxes, and he had the perfect right to acquire such outstanding void title, and to claim all the benefits that could be obtained under it. The agreement negatives the idea that appellee's grantors permitted the land to forfeit in order to acquire title thereby. That the tax title was void makes no difference. See Gates v. Kelsey, 57 Ark. 523, 22 S. W. 162, and Finley v. Hogan, supra.

It is unnecessary to consider the question of laches.

The decree is affirmed.

BATTLE, J., absent.

WHITE RIVER R. CO. v. HAMILTON et al. (Supreme Court of Arkansas. July 22, 1905.) 1. CONTRACTS - BREACH ACTION RECOVERY FOR TORT.

Where a contract between a railroad company and the owner of land over which a right of way was secured required the railroad company to reconstruct fences when the same were on the right of way, and the landowner sued for destruction of his crop by cattle, owing to the railroad company failing to rebuild fences pursuant to the contract, an instruction that authorized a recovery if the crop was destroyed by the breaking or throwing down of the fences, whereby stock broke in, was erroneous, as authorizing a recovery for a tort when a contract was counted upon.

2. SAME-INSTRUCTIONS.

An instruction that, if the jury found that the railroad agreed to fence its right of way, and in consequence of its failure the crop was left exposed to the inroads of stock, etc., then the company was liable, was erroneous, the contract requiring merely a reconstruction of fences when the same were on the right of way.

Appeal from Circuit Court, Baxter County; John W. Meeks, Judge.

Action by T. Hamilton and others against the White River Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

The substance of the evidence showed that those who cleared a right of way for defendant's railroad over lands owned by one of the plaintiffs and occupied by the other as tenant took down fences, and left them in such condition that stock entered the lands. destroying the crops. The first instruction referred to in the opinion was as follows: "This is an action by the plaintiffs for damages alleged to have been caused by the destruction of the crop raised by the plaintiff

G.

Thos. Hamilton on the lands of the plaintiff G. E. Cunningham. If you find from the evidence that the plaintiff Thos. Hamilton planted and cultivated a crop on the lands of the plaintiff G. E. Cunningham, described in plaintiffs' complaint, during the farming season of the year 1902, and that the defendants, or either of them, caused the destruction of said crop, or any part thereof, by breaking or throwing down the plaintiffs' fences, whereby the stock broke in and destroyed the same, you will find for the plaintiffs, and assess their damages at the value of the crop so destroyed, or such part thereof as was destroyed." The second instruc tion was as follows: "If you find from the evidence that the defendant White River Railway Company, in accepting a deed to its right of way through the lands of the plaintiff G. E. Cunningham, agreed to fence its said right of way, and that in consequence of its failure to so fence its said right of way the crop of the plaintiff was left exposed to the inroads of stock, and thereby damaged or destroyed, you will find for the plaintiffs against both of the defendants, and assess the damages of the plaintiffs at the value of that part of said crop so destroyed." And the third was as follows: "If you find from the evidence that the plaintiffs erected a fence around the crop mentioned in plaintiffs' complaint sufficient to protect the same, and that the defendants, or either of them, or their employés, broke or threw down said fence, whereby the plaintiffs' crop was destroyed by stock, then you will find for the plaintiffs the value of the crop so destroyed, or so much thereof as you find was destroyed in consequence of such throwing down or breaking of said fence."

B. S. Johnson, for appellant. Thomas Hamilton et al., pro se.

HILL, C. J. This was an action by a landowner and his tenant for the destruction of the tenant's crop by cattle destroying it, owing to the railroad company failing to rebuild, replace, and maintain fences pursuant to a contract between the railroad and the landowner. The contract sued upon was in a deed to a right of way over the land in which this is part: "Said railway company to reconstruct fences when same are on right of way, and to provide necessary road crossings and stock guards." There is no allegation and no evidence to impeach the abovequoted clause as being the correct written evidence of the contract.

The court gave three instructions, which will be set out by the reporter, together with the substance of the evidence. The first instruction is erroneous in that it authorizes a recovery for a tort when the complaint counted alone upon a contract. The second instruction is erroneous in that it states that, if the jury find from the evidence that in accepting the deed the railroad company

agreed to fence its right of way, and, in consequence of its failure, the crop was left exposed to the inroads of stock, etc., the company was liable; whereas the deed alone evidenced the contract, and it was to reconstruct fences when the same are on the right of way, which may be a very different matter from fencing the right of way. The third instruction is, like the first, based on the theory that the action is one of tort for breaking or throwing down the fences. The railroad company had a right, in the construction of the road, to break and throw down the fences, and agreed to reconstruct them when they were on the right of way. The plaintiffs' action must be, under the complaint and evidence, confined to a breach of the stipulation in the deed, and it cannot be made broader than the parties made it; nor can a tort arise from the railroad breaking the fences, for this contract clearly contemplates such to be done, and required their reconstruction. For a failure to comply with its terms the company is liable, and to its terms the action must be limited. Reversed, and remanded for new trial.

A judgment in ejectment sustaining the validity of a deed from defendant to plaintiff was a bar to the further prosecution of a suit in equity between the parties to cancel the deed, though the equity suit was first commenced.

Appeal from Garland Chancery Court; Le land Leatherman, Chancellor.

Suit by Mahala Church against Gus Gallic. From a decree dismissing the complaint, plaintiff appeals. Appeal dismissed.

Appellant, Mahala Church, was the owner of the property in controversy, certain real estate in the city of Hot Springs, and on December 22, 1890, by warranty deed duly executed, acknowledged, and recorded, reciting a cash consideration of $500, she conveyed this property to Lula Oborg. Appellee, Gallic, claims the property under the last will of Lula Oborg. Mrs. Church remained in possession of the property, and commenced this suit in equity against Gallic in 1901 to cancel said deed, alleging that she intended to execute only a testamentary paper, and, being illiterate, did not know that she executed a deed; and that she had continuously remained in actual, open, and exclusive adverse possession of the property, claiming it as the owner, since the execution of the

deed, a period of more than seven years. Gallic appeared by his solicitor, and answered this complaint, asserting title in himself under said deed and the last will of Lula Oborg, and denying all the allegations of the complaint concerning fraud or mistake in the execution of said deed. He also denied that the plaintiff had held adverse possession of the property, but alleged that she occupied the premises as tenant at will of Lula Oborg. The cause was heard upon the pleadings and depositions, and a final decree rendered dismissing this complaint for want of equity, and the plaintiff appealed to this court.

After the appeal was taken in this case, appellee, Gallic, brought an ejectment suit against Mrs. Church in the circuit court of Garland county for recovery of possession of said premises. A trial of that cause was had, which resulted in a judgment in favor of the plaintiff therein, Gallic, for the possession of the property. An ineffectual effort was made by Mrs. Church to take an appeal to this court from that judgment, which failed by reason of the bill of exceptions not being signed by the presiding judge and filed in due time. She then filed her suit in chancery for relief against this judgment, and on final hearing that complaint was dismissed for want of equity, and on appeal the decree was affirmed. Church v. Gallic, 88 S. W. 307. The judgment in the ejectment suit, having become final, is now pleaded by appellee in bar of appellant's right to prosecute this appeal.

James E. Hogue, for appellant. R. G. Davis, for appellee.

MCCULLOCH, J. (after stating the facts). The statute regulating appeals to this court and the practice in disposing of same provide that an appellee may, by motion to dismiss or answer, raise the question of the ap pellant's right to further prosecute an appeal. Kirby's Dig. §§ 1227, 1228. An appellee may plead in this court that since the appeal was taken a court of competent jurisdiction has, by judgment duly rendered, settled against the appellant the rights asserted in the case on appeal. Pillow v. King, 55 Ark. 633, 18 S. W. 764. The fact that the suit on appeal having been commenced first in point of time, and in a different court from that in which the subsequent judgment was rendered, does not obviate the bar of such adjudication. The pendency of the first action might have been pleaded in the second suit in bar of the right to maintain the same, but, if not pleaded, or if, after the plea is amended, judgment upon the merits of the controversy in the second suit is allowed to become final, it is a bar to further prosecution of the first suit. "The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action

that constitutes an effective defense, without regard to the order of time in which the suits were commenced. Hence it follows that a prior judgment upon the same cause of action sustains the plea of a former recovery, although the judgment is in an action commenced subsequent to the one in which it is pleaded." 2 Black on Judgments, § 791; Finley v. Hanbest, 30 Pa. 190; David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. 980, 6 C. C. A. 661. In Daniel v. Garner, 71 Ark. 484, 76 S. W. 1063, this court said: "Under the statutes of this state a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are exclusively cognizable in equity, he is entitled to have them tried as in equitable proceedings, and for this purpose to a transfer of the cause to the equity docket or chancery court, as the case may be." Horsley v. Hilburn, 44 Ark. 458; Reeve v. Jackson, 46 Ark. 272. A judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the suit. Ward v. Derrick, 57 Ark. 500, 22 S. W. 93. All of the rights and matters asserted in this suit by appellant could have been adjudicated in the ejectment suit, or she could have pleaded the pendency of this suit in bar of appellee's right to maintain that suit. Having failed to do either, she is barred by the final judgment in that case from seeking further to adjudicate the question in this case. Her right to prosecute this appeal has, on that account, ceased, and the same must be dismissed. It is so ordered.

BATTLE, J., absent.

WILLIAMS et al. v. STATE, for Use of SCHOOL DIST. (Supreme Court of Arkansas. July 8, 1905.) SCHOOL LANDS-SALE-INADEQUACY OF PRICE -SETTING ASIDE SALE.

The statute providing that the collector shall report all sales of school lands to the county court, which may reject or confirm the sale, and that, if any sale be rejected, the court may direct a reoffering of the land, specifying the minimum price at which it may be sold, gives the court authority to reject a sale on account of inadequacy of price.

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

Exceptions to the report of the collector on a sale of school lands, and from a judgment of the circuit court rejecting and refusing to confirm the sale W. E. Williams and others appeal. Affirmed.

S. H. Mann and Rose, Hemingway & Rose, for appellants. Robt. L. Rogers, Atty. Gen., for appellee.

McCULLOCH, J. This is an appeal from the judgment of the circuit court rejecting

and refusing to confirm a sale of school lands made by the collector. Exceptions to the collector's report of sale were filed in the county court by certain citizens, and that court sustained the exceptions, and rejected the sale. On appeal the circuit court heard the cause upon oral testimony establishing the market value of the lands, and found that it was sold for an inadequate price, and for that reason rejected the sale.

It cannot reasonably be contended that the finding of the court as to the value of the land is not sustained by the evidence, but appellants urge that, the sale having been properly and regularly made on petition of a majority of the adult inhabitants of the township, as provided by statute (this fact being admitted), it was the duty of the county court to confirm it, notwithstanding the inadequacy of the price. They invoke the application of the rule that a judicial sale, which has been regularly and fairly made, will not be set aside for mere inadequacy of price, unless the inadequacy be so great as to shock the judicial sense of justice. But a sale of school land by the collector upon petition of the inhabitants of the township is not a judicial sale, though the statute requires that it must be confirmed by the county court. It is purely a statutory proceeding, and the statute alone must be looked to in ascertaining its terms and effect. The statute provides that the collector, after having advertised, appraised, and sold the land, shall "report all sales to the county court, which may reject or confirm the same," and that, "if any sale be rejected, the county court may direct the collector to again advertise and offer the land, and may specify the minimum price at which the tract or tracts may be sold, not to be less than two-thirds of the appraised value." This court, in a recent opinion, concerning the power and duty of the county court with reference to such sales, said: "The authority to order the sale being in the male inhabitants, the jurisdiction of the county court is confined to protecting the inhabitants against a sacrifice of the land. The inhabitants decide when the land shall be sold. All that remains for the county court to do is to prevent a sacrifice by the sale of the land below its true value." Ex parte Young, 85 S. W. 1133. In the case at bar both the county and circuit courts found from the evidence introduced that the land had been sold for an inadequate price, and it became the duty of the court to prevent the sacrifice by rejecting the sale and ordering a new sale, either with or without fixing a minimum price. We have no doubt, from the language used in the statute, that it was intended to give the court authority to reject the sale on account of inadequacy of price as well as on account of irregularities or unfairness. In no other way could the court completely protect the interest of the public. The power of the court to either "reject or confirm" the sale is not to be