(222 S.W.)

Appellant testified that he signed the re- mortgages, which were given to secure adceipt when he signed the first note and mort- vancements, contained the stipulation that gage, without knowing its contents or that appellee was to furnish supplies to appelhe was signing a receipt. lant and his hands. These clauses in the mortgages constituted the undertakings original obligations, and therefore not within the statute of frauds.

No error appearing, the decree is affirmed.

TON. (No. 75.)

The point of difference as to whether the duebill evidenced money loaned or cotton sold is really immaterial further than to show who had the better memory. Both testified that it represented a bona fide indebtedness. The all-important question is whether it was paid. The burden, of course, was upon appellee to establish the payment, The receipt strongly corroborates the testi- HOME LIFE & ACCIDENT CO. v. COMPmony of appellee on this point, unless obtained through deceit or fraud. There is nothing in the evidence to indicate fraud or deceit. Appellant could read, and was negligent unless he did so. The other papers signed by him did not bear the same date of the receipt. Neither he nor the bank, with whom the duebill was left, ever presented it for payment. We think appellee met the burden. The testimony preponderates in favor of payment.

[3] 2. Appellant testified positively that he only purchased merchandise to the amount of $127 from appellee in 1917; that the items in excess of that amount were items purchased in 1916, for which he had settled.

Appellee testified to the correctness of the items from a statement made up from the books, and agreed to produce the books in open court for the inspection of the court and parties, including the book in which the running account for 1916 was entered, so that it might appear whether the items charged in 1916 and paid for were carried into the 1917 account. Appellee admitted that appellant had paid the running account of 1916 in full.

The contention of appellant on this point is that, had the book of 1916 been produced, it would have disclosed that items purchased in 1916, and paid for, had been carried forward and entered as purchases in 1917. This contention is met and fully answered by the recital in the decree that

"Upon presentation of defendant's books in open court, it is found and adjudged that the amount due, secured by said mortgages and notes, is the sum of $590.60."

The books not having been brought into the record by bill of exceptions or otherwise, and this evidence not being before us, we must presume that it sustained the finding and decree of the court.

(Supreme Court of Arkansas. June 21, 1920.) Insurance 136(2)-Delivery of policy to insured's wife held compliance with "delivery" clause.

Delivery of life policy by insurer to wife of insured in keeping with his instructions held a delivery within meaning of delivery clause, test of delivery not being whether policy was deposited with insured, but whether it passed intentionally out of insurer's control into that of insured.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Delivery.]

Appeal from Circuit Court, Independence County; Dene H. Coleman, Judge.

Suit by Susie Compton against the Home Life & Accident Company. From judgment for plaintiff, defendant appeals. Affirmed,

T. D. Wynne, of Fordyce, for appellant.
S. M. Bone, of Batesville, for appellee.

HUMPHREYS, J. Appellee instituted suit against appellant in the Independence circuit court to recover $2,000, as beneficiary of a policy of life insurance issued by appellant on the life of her husband, Thos. S. Compton, Jr.

Appellee filed answer, pleading nonliability on the alleged ground that the policy was not delivered to the insured during his lifetime and while in good health, and, for that reason, under the terms of the policy, was an incomplete contract.

The cause was heard upon the pleadings and evidence, at the conclusion of which each party requested a peremptory instruction in his favor. The court refused the request of appellant and granted the request of appellee. In response to the peremptory instruction in favor of appellee, the jury returned a verdict against appellant in the sum of $2,000.. The court thereupon assessed a penalty of 12 per cent., on the face of the judgment, $250 attorney's fee, and rendered judgment against appellant for $2,480, from which judgment an appeal has been duly prosecuted to this court.

[4] 3. The evidence disclosed that R. H. Murray and A. C. Chapman were appellant's hands; that, during the year 1917, R. H. Murray obtained merchandise of the value of $317.90, and A. C. Chapman of the value of $51.95, from appellee, which accounts were carried on the books as accounts against R. H. Murray and A. C. Chapman; that the The facts necessary to a determination of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the only question presented by this appeal ton, 129 Ark. 137, 195 S. W. 371. In the two are as follows: In the month of August, Arkansas cases supra the court held, under 1918, Thos. S. Compton, Jr., the then husband of appellee, applied for two life insurance policies of $2,500 each in appellant's life insurance company. On account of having entered the military service during the war between the United States and Germany, appellant company issued a policy for only $2,000 and mailed same, on the 4th day of October, 1918, to its agent, R. M. Carter, at Batesville, Ark., for delivery and collection of the first premium. The policy contained the following clause:

"This policy shall not take effect until the first premium shall have been actually paid and the policy actually delivered to the insured during the lifetime and good health of the insured."

the facts of each, there had been no delivery of the policies. In those cases the companies and their agents had not parted with the control or dominion over the policies; but the doctrine was clearly announced in the case of National Life Ass'n v. Speer, and clearly inferable in Mo. State Life Ins. Co. v. Burton, Adm'r, that, if an insurance company had intentionally parted with the control of and dominion over the policies, such act would amount to a delivery of the policies within the meaning of clauses similar to the delivery clause in the policy involved in the

instant case.

No error appearing, the judgment is affirmed.

PEARMAN v. PEARMAN et al. (No. 67.)
(Supreme Court of Arkansas. June 21, 1920.)
1. Quieting title

edy at law is plain, adequate, and complete. legal and some one else in possession, the rem

In the interim between the application and the issuance of the policy the insured, Thos. S. Compton, Jr., directed the agent to deliver the policy, when it came, to his wife, the beneficiary therein, for him. When the policy arrived, the insured was at Camp 12(4)-Plaintiff must be Mayberry, Austin, Tex. The policy was re- in possession unless title be merely equitable. ceived by the agent on the 5th day of Octo- The equity jurisdiction to quiet title indeber, 1918, and on the same day, delivered by pendent of statute can only be invoked by a him to Susie Compton, wife of the said Thos. plaintiff in possession, unless his title be mereS. Compton, Jr. At the time the agent de-ly an equitable one, since where the title is livered the policy, he collected the first year's premium and accounted to appellant company for the amount due it. The insured, Thos. S. Compton, Jr., was in good health at the time the policy was delivered, but on the 13th of the month died of influenza at title had previously given permission to his son Where plaintiff in a suit to confirm a tax said camp. His body was shipped back to to occupy the premises rent free, and it apBatesville and interred. Proof of his death peared that after the son's death his widow was made to appellant company in accord-claimed that the land was a gift to the son, ance with the requirement of the policy, and payment was refused on the ground that the policy was not delivered in person to the insured in his lifetime.

Appellant contends that the contract was incomplete and not binding on it, because the policy was not actually delivered to the insured; in other words, the contention is made that the delivery of the policy to the wife of Thos. S. Compton, Jr., in keeping with his instruction so to do was not a delivery to him within the meaning of the delivery clause in the policy. The test of an actual delivery of an insurance policy by the insurer, or its agent, to the insured, is not whether it was deposited with the insured, but whether it passed intentionally out of the control or dominion of the insurer, or its agents, into the control or dominion of the insured. It is not an essential to actual delivery that there be a manual delivery to the insured. A delivery to a third person, designated by the insured, is to all intents and purposes a delivery to the insured. 14 R. C. L. 898; National Life Ass'n v. Speer, 111 Ark. 173, 163 S. W. 1188; Mo. State Life. Ins. Co. v. Bur

2. Taxation 793-Tax title cannot be confirmed where another is in adverse possession of premises.

and was in actual adverse possession, it was error to confirm the tax title in view of Kirby's Dig. § 665, providing that there shall be no confirmation of the sale of any lands that are in actual possession of any person claiming title adverse to petitioner.

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

Suit by G. W. Pearman and others against Anna Pearman to confirm a tax title. Judg ment for plaintiffs, and defendant appeals. Reversed and remanded.

G. W. Pearman brought this suit in equity under that part of chapter 25 of Kirby's Digest relating to the confirmation of tax titles.

Anna Pearman was allowed to file exceptions to the petition on the ground that she resided on the property and was in actual adverse possession of it. G. W. Pearman filed a response, in which he denied that Anna Pearman was in legal possession of the property, or had been for several years last past.

G. W. Pearman was a witness for himself. According to his testimony, he was the own

(222 S.W.)

R. D. Rasco, of De Witt, for appellant.
Lee & Moore, of Clarendon, for appellees.

er of three lots in the town of De Witt, Ark., | favor, and the title to the lots was quieted and had owned them since December, 1898. in them against the claims of all persons The lots in controversy were sold at a tax whomsoever. Anna Pearman has appealed. sale in 1896 for the taxes of 1895. On June 14, 1898, the clerk executed a tax deed to J. A. Gibson, the purchaser at the tax sale. On June 25, 1898, J. A. Gibson, by a quitclaim deed conveyed the lots to L. C. Smith, and in December, 1898, L. C. Smith conveyed the lots to G. W. Pearman. G. W. Pearman has paid the taxes on the lots every year since he purchased them. He gave his son, Arthur Pearman, permission to build a house on the lots. He furnished to his son part of the lumber, and his son, who was a carpenter by tråde, furnished the balance of the lumber and material, and himself erected the house. Pearman allowed his son to live on the place rent free, and intended that in case he died first that his son should have the lots as a part of his portion of the father's estate. The son became sick, and went West for his health. On his return he resided with his father, but was allowed to receive the rents from the property. The son rented out the property, and his tenant was in possession of it at the time he died. A few days before the son's death, G. W. Pearman told him that he intended to deed the property to the son's infant child as soon as he could quiet the title to the property.

Anna Pearman is the widow of Arthur Pearman, who was the son of G. W. Pearman. She and Arthur Pearman were married on the 2d day of October, 1915, and lived together as husband and wife until the husband died. A child was born unto them on November 4, 1916, and it died just three months after the death of its father. Arthur Pearman and Anna Pearman, his wife, moved into the house which had been built by him on the lots in controversy, as soon as they were married, and lived there until Arthur Pearman went West for his health. They then rented the property, and Arthur Pearman collected the rents as long as he lived. After Arthur Pearman died, Anna Pearman did not collect the rents for two months, but after their baby died she again began collecting the rents. Subsequently she moved into the house, and requested G. W. Pearman to make her a deed to the property, claiming that he had given the lots to his son before the latter erected the dwelling house on them. G. W. Pearman refused to make her a deed, and she continued to reside on the lots, claiming title to them and claiming to hold them adversely to G. W. Pearman. This all occurred before G. W. Pearman brought suit under the statute to confirm his title in the lots. During the pendency of the proceedings, G. W. Pearman died, and the proceedings were revived in the name of his two sons, who were his sole heirs at law.

HART, J. (after stating the facts as above). [1] The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate, and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury. Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Burke v. St. L., I. M. & S. Ry. Co., 72 Ark. 256, 50 S. W. 275, and St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, 86 S. W. 852.

The action has been greatly extended by statute, and in many states is the ordinary mode of trying disputed titles. Pomeroy's Equity Jurisprudence (3d Ed.) vol. 4, § 1396. Such is not the case in this state, however.

Section 665 of Kirby's Digest, which is a part of the chapter relating to the method of procedure in confirming tax titles, provides that there shall be no confirmation of the sale of any lands that are in actual possession of any person claiming title adverse to the petitioner. At the time the proceedings in the case at bar were brought by G. W. Pearman, Anna Pearman was in the actual possession of the lots in controversy, claiming title thereto adverse to the petitioner. She claimed that G. W. Pearman had given the lots to his son, who was her husband, and that she and her husband had resided on the lots until they went West, and afterwards collected the rents on the same until his death. He left surviving him his widow and an infant child. The child died in about three months after the father and the widow went into possession of the lots after her child's death, and she claimed to hold adversely to G. W. Pearman at the time he brought the proceedings to confirm his tax title in the lots.

[2] Anna Pearman did not seek to quiet her own title to the lots, and thereby give the court jurisdiction of the entire controversy, as was the case in Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97. She was content to file exceptions to the right of G. W. Pearman to have his tax title confirmed, and did not seek affirmative relief on her own account. She was in adverse possession of the lots at the time G. W. Pearman filed his petition to confirm his tax title, and the court erred in

The chancellor found the issues in their granting the relief prayed for.

It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.

ern district, for the crime of illegal cohabita-
tion, in the following form:
"State of Arkansas v. Alford Hettle and Alphia
Hall. No. 1223. Western District of Clay
County, June Term, 1919.

"The grand jury in and for the district, county, and state aforesaid, in the name and by the authority of the state of Arkansas, accuse the persons named in the caption hereof as defendants of the crime of illegal cohabitation, com114-Indict-mitted as follows, to wit:

HETTLE et al. v. STATE. (No. 76.). (Supreme Court of Arkansas. June 21, 1920.) 1. Indictment and information

ment held insufficient to sustain conviction of second offense of illegal cohabitation.

Since under Kirby's Dig. § 1810, the offense of illegal cohabitation is a graded crime, and the fact of whether it is a first, second, or third offense is an element in the punishment thereof, an indictment for illegal cohabitation, failing to charge a second offense, was insufficient to sustain a conviction for a second offense. 2. Indictment and information 81(1)-Indictment held not defective as not charging an offense by persons named in caption.

An indictment for illegal cohabitation was not defective in that no one was charged in the body of the indictment with having committed the offense, where the two accused persons were properly named in the caption of the indictment, and were charged in the indictment with having committed the offense, by reference to their names set out in the caption, and in the latter part of the indictment were specifically named as the parties against whom the indictment was preferred.

3. Criminal law 369(1), 1169 (11)-Admitting evidence of illegal cohabitation prior to former conviction held prejudicial.

In prosecution for illegal cohabitation, the admission of evidence, over defendants' objection, that they dwelt together in like manner as husband and wife prior to a previous conviction for the same offense was error, and such error was prejudicial; the evidence being undisputed that after the former conviction defendants never slept in the same house.

4. Criminal law 369(1)-Evidence of like offenses before former conviction admissible only in corroboration,

་

"On the 1st day of May, 1919, in the district, county and state aforesaid, the persons named and willfully live and cohabit together as husin the caption hereof did unlawfully, knowingly, band and wife, without being married to each other, he, the said Alf Hettle, being a male person, and she, said Alphia Hall, being a female person over the age of 16 years, against the peace and dignity of the state of Arkansas. T. W. Davis, Prosecuting Attorney for the Second Judicial District. "Indictment No. 8."

The sufficiency of the indictment was attacked by demurrer upon the following grounds:

(1) That the said indictment does not state facts sufficient to constitute an offense.

(2) That said indictment does not charge any one in the body of the indictment of having committed an offense.

Over the objection and exception of appellants, the demurrer was overruled, and the cause was submitted to a jury upon the instructions of the court and evidence adduced. The jury returned the following ver

dicts:

"We, the jury, find the defendant Alphia Hall, guilty of first offense and fix her punishment at a fine of $20.

"We, the jury, find the defendant Alford Hettle guilty of second offense and fix his punishment at a fine of $100 and at imprisonment in the county jail for a period of six months."

Judgments were rendered in accordance with the verdicts, from which judgments, an

In prosecution for illegal cohabitation, had appeal has been duly prosecuted to this court under proper proceedings.

the evidence tended to show that defendants committed such offense after their former conviction therefor, it would have been proper to admit evidence of like offenses occurring before their former conviction in corroboration, but for such purpose only.

[1] It is insisted that the court erred in overruling the demurrer to the indictment, because it failed to charge a second offense. Under section 1810 of Kirby's Digest, the punishment for illegal cohabitation is graded, according to first, second, and third ofAppeal from Circuit Court, Clay County; fenses. For the first offense, offenders may R. E. L. Johnson, Judge.

Alford Hettle and another were convicted of illegal cohabitation, and appeal. Reversed, and remanded for new trial.

J. M. Burrow, of Mammoth Spring, for appellants.

be fined in a sum not less than $20 nor more than $100; for a second offense not less than $100 and imprisonment in the county jail not exceeding twelve months; and for a third offense, or any subsequent offense, by imprisonment in the penitentiary for any time for not less than one nor more than three years. Appellants were tried for a second offense under the indictment, which HUMPHREYS, J. Appellants were in- did not specifically charge a second offense. dicted in the Clay county circuit court, West-The contention is made by the state's at

Jno. D. Arbuckle, Atty. Gen., and Silas W. Rogers, Asst. Atty. Gen., for the State.

(222 S.W.)

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