(222 S.W.) offered to show by witness Allen that, at the time he traded the land to the appellee for the Chevrolet, car, appellee represented that he had the right to sell the Chevrolet; that at that time one Dr. Moore held a $75 ownership note against the car which appellee traded to Allen for the land. whatever in the record to sustain such contention. There is no testimony to prove that if the sale was made, which was asserted by the appellee and denied by the appellant, the consideration failed because the appellee had no title to the land. On the contrary, the undisputed evidence shows that his title to the land was complete. The issue, and the only issue, between the The court refused to allow this testimony, to which ruling the appellant duly excepted. The trial resulted in a verdict and judg- | appellant and the appellee, was submitted to ment in favor or the appellee. From that judgment is this appeal. [1] The court did not err in its rulings. The offered testimony was not germane to the issue between the appellant and the appellee. The offered testimony related to issues that were entirely collateral. The clearcut issue between the appellant and the appellee, as set forth by the pleadings and the testimony of the parties, respectively, is whether or not the appellant had sold the automobile in controversy to the appellee for the tract of land conveyed by the appellee to appellant. Appellant set up in his com plaint that he was the owner and entitled to immediate possession of the automobile. He grounded his ownership and right to possession on the following testimony: "The trade was I was to get a note secured by the land and the Ford car. I loaned him the car to go make the trade with Mr. Allen and deliver the Chevrolet to Mr. Allen." the jury under correct instructions. There HUGHES V. GARDNER. (No. 20.) (Supreme Court of Arkansas. May 31, 1920.) 1. Appeal and error 1097 (1)—Declarations of law on first appeal controlling on second. On a second appeal where the issues and facts are the same as on the first appeal, what was declared as the law on the first appeal must control. 2. Bills and notes 485—Note presumed genuine, and burden on defendant in absence of denial by affidavit. Kirby's Dig. § 3108, authorizing a writing purporting to have been executed by a party and referred to in and filed with a pleading, to be read as genuine against such party, unless he denies its genuineness by affidavit be In his rebuttal testimony, the appellant fore trial, allows note sued on in absence of again stated: such affidavit, to be introduced without formal proof of execution and with presumption of its genuineness, casting on defendant the burden of proving it not genuine. 3. Bills and notes 537 (2)-Genuineness of signature for jury on conflicting evidence. Genuineness of defendant's signature to note sued on is for the jury, there being not only the presumption of genuineness under Kirby's Dig. § 3108, because of defendant's failure to file affidavit of denial, but there being introduced for comparison a recorded mortgage purporting, and testified by plaintiff, to have been executed by defendant, though opposed to this is the testimony of defendant and others that the signature to the note is not hers. Appeal from Circuit Court, Benton County; W. A. Dickson, Judge. Action by John Gardner against Pearl Hughes. Judgment for plaintiff, and defendant appeals. Affirmed. W. N. Ivie, of Rogers, for appellant. [2] The appellant will not be heard to say, in one breath, “I did not sell the car," and in the next breath, "But, if I did sell it, the appellee made false representations which caused me to do so, and the appellee consequently had no title to the land which he gave me in consideration for the automobile." A party will not be allowed in this manner to play fast and loose in a lawsuit. The positions which appellant thus asks the court to allow him to assume in this litiga- WOOD, J. This action was brought by tion were wholly inconsistent with each the appellee against the appellant. The acother. Furthermore, even if the appellant tion was grounded on a promissory note dathad set up that there was a sale of the auto-ed June 23, 1913, purporting to have been mobile, and that the consideration therefor executed by E. R. Hughes and appellant, had failed on account of the deceit and Pearl Hughes, to the appellee for the sum fraud of the appellee, there is no testimony of $500. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In defense of the action appellant set up, on a writing purporting to have been exenon est factum and coverture. This is the second appeal in this case. Gardner v. Hughes, 136 Ark. 332, 206 S. W. 678. [1] The issues here are the same as they were on the former appeal. Therefore, unless there has been some substantial change in the facts, what was declared as the law on the former appeal must control now under the familiar doctrine of the law of the case. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S. W. 393; Morgan Engineering Co. v. Cache River Drainage Dist., 122 Ark. 491, 184 S. W. 57; Carter v. Younger, 123 Ark. 266, 185 S. W. 435; U. S. Annuity & Life Ins. Co. v. Peak, 129 Ark. 50, 195 S. W. 392, 1 A. L. R. 1259. On the former appeal the court directed a verdict in favor of Pearl Hughes. On the issue of non est factum, under the facts developed in the former appeal, we said: cuted by the defendant, of the burden of proving the genuineness of the writing before its introduction as evidence where the defendant by affidavit has not denied the genuineness of the writing before the trial is begun. But in the absence of this statute the plaintiff would have the burden of showing the genuineness of the writing before he could introduce the same in evidence. The purpose of the statute, however, was only to permit the reading or introduction of the writing without formal proof of its execution and to make it prima facie genuine. Where the defendant has not complied with this statute, the plaintiff may introduce and read the writing on which his action is founded, and under the statute the presumption is that it is genuine. The burden is then cast upon the defendant, if he would defeat the action, to prove that the writing is not genuine. In other words, a failure upon the part of "If the undisputed evidence showed that appellee did not sign the note, it was proper for the defendant to comply with the statute the court to sustain her plea of non est factum raises the inference or presumption of law by directed verdict. Under the state of plead- that the writing on which he is sued and ings, the note itself is introduced, and her sig-purporting to be signed by him is genuine, nature is prima facie genuine. * *Her and, having failed to file the affidavit prosubsequent denial thereof raised a question of vided by the statute, the burden is cast on disputed fact, which could only be determined him to show that it is not genuine. by the jury." On this issue, if there were no other testimony in the present record than that of Mrs. Hughes, this court under the rule of law of the case would be bound by its former announcement, even though such announcement was erroneous. The rule applicable to such presumptions is announced in 16 Cyc. 1073, as follows: "A presumption of law is a rule of law announcing a definite probative weight attached by jurisprudence to a proposition of logic. It is an assumption made by the law that a strong inference of fact is prima facie correct, and will, therefore, sustain the burden of evidence, until conflicting facts on the point are shown. When such evidence is introduced, the assumption of law is functus officio and drops out of sight. The inference of fact which has been assumed to be correct continues to have its logical weight in the case." [3] Learned counsel for appellant conOn the last trial, Mrs. Gould, the mother tends that, under the above rule, the preof Mrs. Hughes, testified that she was famil-sumption that the note is genuine has been iar with the latter's handwriting, and that the signature on the note in controversy was not that of Mrs. Hughes. E. G. Sharp, cashier of the Farmers' State Bank in Rogers, testified that he had in his possession checks signed by Mrs. Hughes and knew her signature, and that he did not believe that the signature on the note was that of Mrs. Hughes. [2] Section 3108 of Kirby's Digest pro vides: "Where a writing purporting to have been executed by one of the parties is referred to in, and filed with, a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun." This is a rule for the production of evidence which relieves the plaintiff, who sues overcome by the testimony of appellant and her two corroborating witnesses that the signature is not appellant's. But we are not called to determine whether the testimony thus produced by appellant is sufficient to overcome the prima facie genuineness of the note raised by the failure of appellant to comply with the statute, for the reason that appellee did not rest upon the statutory dence a mortgage which purported to be presumption. Appellee introduced in evisigned by appellant and duly acknowledged by her. This mortgage was recorded. Counsel for appellant objected to the introduction of the mortgage on the ground that it was not the basis of the suit and had not been filed with any pleading in the case, and was therefore not a paper that could be used in evidence for the purpose of comparing the signature thereon with the signature on the (222 S.W.) note to prove the genuineness of the latter. [ed and was not in dispute, that appellant The court overruled the objection and permitted the appellee to introduce the mortgage. Counsel for appellant says in his brief that the signing and execution of the mortgage was denied under oath, and that this mortgage was clearly inadmissible under the doctrine announced by this court in Miller v. Jones, Adm'r, 32 Ark. 337, where we held (quoting syllabus): "Proof of handwriting may be made by comparison, by the jury, of the writing to be proven with other writings, admitted to be genuine, already in the case; but a comparison by writings not already in the case, is not admissible." Now when the mortgage was offered and introduced in evidence appellant did not object to its introduction on the ground that it was not signed by her, but only on the ground that "it is not sued on in this case, and is not a paper belonging to or filed with any pleading in the suit." Besides, as we construe the record, abstracted by appellant, the execution of the mortgage by appellant was not disputed when appellee was seeking to prove that the signature to the note was made by the same person who signed the mortgage. The record shows the following on the redirect examination of witness Sharp by the appellee: Q. Now, I will ask you to take these two signatures and this signature to the mortgage introduced. The signature of Pearl Hughes to the mortgage and the signature on that note, and tell the jury whether they are the same. Counsel for Defendant, W. N. Ivie: I object to that. In the first place, there is no contest or dispute about these two signatures. The Court: You admit they are by the same party? Counsel for Defendant, W. N. Ivie: We do not admit that they are the same party, but we deny signing either note or mortgage. It is not disputed. The Court: If you do not dispute it, there is no use of going into it. Counsel for Defendant, W. N. Ivie: We do not dispute it. Counsel for Plaintiff, C. M. Rice: Let the record show it, then, that there is no dispute. The Court: All right. had signed the note as well as the mortgage. The court evidently so understood it, and obviously counsel for appellant so understood it. If counsel wished to object to the mortgage on the ground that appellant had not signed same, then was the time for him to speak and let the court know that he made this additional objection to the mortgage as evidence. True, the appellant testified that she "signed neither one of them." But even at that time appellant did not ask to have the mortgage excluded, on the ground that it had not been signed by her. We conclude therefore that the court did not err in admitting the mortgage in evidence for the purpose indicated. This mortgage and the admission of appellant's counsel in open court in connection therewith, to the effect that there was no dispute that the signature to the note was by the same party who signed the mortgage, were most cogent facts before the jury on the last trial that they did not have before them on the first. In the case of Miller v. Jones, supra, papers that were not in evidence and that had been excluded were handed to the jury for the comparison of signatures on papers that were in evidence in the case, and we held that That case has no application for the reason that here the mortgage was read in evidence and was a paper in the case. Concerning the issue of coverture on the former appeal, we said: "There a substantial proof in the case tending to show that the money was loaned to appellee on the statement that it was to be used for the purpose of going East to look after her separate property. If her signature was genuine, a question for the jury to determine, then the proof tended to show that appellee armed her husband with a negotiable instrument to raise money for her personal benefit and she would be bound by the statement of her agent, thus authorized to raise money for her, to the effect that money was wanted for her personal benefit. Appellee's denial that the money was borrowed for her personal benefit or that of her separate property raised a question of fact for the jury to determine." On the issue of coverture the facts developed at the last trial are substantially the same as they were in the first trial. In all essential particulars there is no material The above examination concluded the testimony on behalf of the appellee. The appellee testified, at the time the mortgage was introduced, that they (E. R. and Pearl Hughes) executed and delivered to him the mortgage to secure the note, and appellee's counsel then announced that the purpose of introducing the mortgage was to compare the signatures. Therefore the manifest difference. Hence what was said on this purpose of the above examination of witness Sharp was to show, by comparison of the signature to the note which was in dispute, with the signature to the mortgage, the execution of which by appellant had been prov issue on the former appeal is controlling. Hartford Fire Ins. Co. v. Enoch, supra; Ins. Co. v. Peak, supra. The court did not err in refusing to take the issue of non est factum and coverture from the jury. These issues were submitted | was received and executed by Schmidt on under correct instructions. May 17, 1919. Schmidt, after executing the Appellant, as one of the grounds of her deed, held it for a few days to see if his othmotion for new trial, challenges the integri-er agent would not get a greater price for the ty of the verdict on account of alleged mis- land. Schmidt was notified by telegram that conduct of one of the jurors as set forth in J. E. Lightle, on the 19th of May, 1919, had an affidavit attached to the motion. It could filed a suit for specific performance of the serve no useful purpose to set out and com- contract for the sale of the land made with ment upon the contents of the affidavit. It him. The parol contract between the agent suffices to say that we have considered the of Schmidt and J. S. Booth for the sale of the same and find that the trial court did not land in controversy was made on May 15, err in refusing to set aside the verdict be- 1919. Under its terms the cashier of a bank cause of alleged misconduct of one of the was directed to pay the purchase money when jurors. the deed and abstract of title was delivered to it. Booth did not enter into possession of the land and was notified of the suit by Lightle for a specific performance before the deed was delivered to the bank. There is no reversible error. The judgment is therefore affirmed. LIGHTLE v. SCHMIDT et al. (No. 25.) (Supreme Court of Arkansas. May 31, 1920.) Lis pendens 25(1) Purchaser in unenforceable parol contract made prior to notice of suit involving title held bound by notice. Where suit for specific performance of a written contract was instituted by a buyer of land before the seller's deed to a third person pursuant to an earlier parol contract of sale was delivered, and before the third person had paid any part of the purchase money or had taken possession, the third person's contract was unenforceable, and he was therefore affected by the buyer's lis pendens filed under Kirby's Dig. § 5149. The complaint of the plaintiff was dismissed for want of equity, and the case is here on appeal. Brundidge & Neelly, of Searcy, for appel lant. Miller & Yingling and Eugene Cypert, all of Searcy, for appellees. HART, J. (after stating the facts as above). It is conceded that the contract between Lightle and Schmidt was one that the former might enforce in a suit for specific performance if Booth was bound by the lis pendens notice filed when the suit was instituted. In Marshall v. Whatley, 136 Ga. 805, 72 S. E. 244, 36 L. R. A. (N. S.) 552, it was held that a suit for the specific performance of a contract for the sale of real estate is within the rule as to lis pendens, and that one who acquires an in Appeal from White Chancery Court; John terest in the property pending the suit from a E. Martineau, Chancellor. Suit by J. E. Lightle against Sidney W. Schmidt, wherein J. S. Booth intervened. From decree dismissing the complaint, plaintiff appeals. Reversed, and cause remanded. On the 19th day of May, 1919, J. E. Lightle brought suit in equity against Sidney W. Schmidt to enforce the specific performance of a written contract for the sale of a tract of land in White county, Ark., and a lis pendens notice was filed under the provisions of section 5149 of Kirby's Digest. J. S. Booth filed an intervention and claimed to be an innocent purchaser for value of the land in controversy. party thereto is bound by the result of the suit. Several decisions from courts of last resort of other states are cited in support of the rule. The doctrine of lis pendens is founded on public policy and has been long adhered to as essential to the due administration of justice in order that an end may be put to litigation. Bailey v. Ford, 132 Ark. 208, 200 S. W. 797. Counsel for Booth seek to uphold the decree upon the principles announced in Moulton v. Kolodzik, 97 Minn. 423, 107 N. W. 154, 7 Ann. Cas. 1090, and Parks v. Smoot, 105 Ky. 63, 48 S. W. 146, in which it is held that a person who enters into an executory contract for the purchase of land, prior to the institution of a suit involving the title thereto, acquires an interest in the land and may after such suit is brought pay the purchase money and receive a deed to the land unaffected by the rule of lis pendens. Those cases, however, have no application to the facts in the present case. In each of those cases the execuAnother agent of Schmidt entered into a tory contract of sale was binding and enforce, verbal contract with J. S. Booth for the sale able in equity. It is true that in the latter of the land in controversy to him. A deed case the contract of sale was a parol one, but was forwarded to Schmidt for execution and the purchaser had entered into the possession It appears from the record that the duly authorized agent of Sidney W. Schmidt entered into a written contract with J. E. Lightle to convey to him the land in controversy, and, it being conceded that the contract was binding upon Schmidt, it is not necessary to set it out in the statement of facts. (222 S.W.) of the land and was entitled to a specific performance of his contract. Here the suit by Lightle for specific performance was instituted before the deed to Booth was delivered and before Booth had paid any part of the purchase money. Neither had Booth entered into the possession of the land. Hence he was not entitled to a specific performance of his contract. Before the rights of parties completing a parol contract for the sale of lands pending litigation will be protected, it must appear that the interest under the ex ecutory agreement is capable of being enforced. Rooney v. Michael, 84 Ala. 585, 4 South. 421. In order that the interest acquired by Booth may be effectual against the rule of lis pendens, his contract must be enforceable. Gibler et al. v. Trimble, 14 Ohio, 323, and Clarkson v. Morgan's Devisees, 6 B. Mon. (Ky.) 441. As we have already seen, the contract with Booth was not obligatory on the parties and could not have been enforced. Therefore he was affected by the lis pendens notice in the suit for specific performance by Lightle against Schmidt. It follows that the chancery court erred in dismissing the complaint of the plaintiff for want of equity. For that error the decree must be reversed, and the cause remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. Where plaintiff was placed in possession of defendant's property under promise to convey it to her either on condition she would not prosecute defendant for carnal abuse of her daughter, or sue him for damages, or else under a voluntary oral gift, a court of equity will not enforce specific performance, on account of the illegality. J. A. Weas, of North Little Rock, and Gardner K. Oliphint, of Little Rock, for appellant. John M. Rose, of Little Rock, for appellee. HUMPHREYS, J. Appellant instituted suit against appellee, on the 28th day of July, 1919, in the Pulaski chancery court, to require him to execute her a deed to lots 7 and 8, block 6, Ratterree's addition to Argenta, Ark., in accordance with an alleged agreement to that effect between them. Appellee filed answer, denying that he had agreed to convey the lots to her. The cause was submitted to the court upon the pleadings and evidence, which resulted in a dismissal of appellant's bill for want of equity. From that decree, an appeal has been duly prosecuted to this court. The undisputed evidence showed that appellee, a married negro man, employed a neter of appellant, to work in his rooming house gro girl, 12 years of age, in May, 1915, daughin Argenta; that she remained in his employ a number of months, and during that time gave birth to a boy child, who bears the name of appellee. The testimony of appellant tended to show that appellee assumed responsibility for the pregnancy of the girl, and voluntarily agreed to convey said property to appellant when he paid it out, and, in the meantime, to keep it in repair, if appellant would not prosecute him for carnal abuse or sue him for damages; that she agreed to the proposal, and, pursuant to the agreement, was placed in the possession of the property, where she has since continuously resided with her family, including the girl and child; that, during the occupancy, appellee paid the taxes, kept the property in repair, and made permanent improvements thereon, appellant expending $2 or $3 only, for repairs on the roof; that appellee never collected any rent from her or demanded any until a short time before the institution of the suit; that appellee then attempted to sell the property to a third party, and demanded possession thereof. Appellee's testimony tended to show that he was not the father of the child; that he 2. Specific performance 47-Betterments on never assumed responsibility for it; that he property given orally held too slight to sup-never promised to convey the property to the port specific performance. appellant to prevent her from prosecuting Repairs costing $2 or $3, made by plain- or suing him; that he never placed her in tiff on the roof of property orally given her possession thereof under a contract to convey by defendant, were betterments too inconse-it to her when he paid for it, but, on the conquential to be classed as valuable and permanent to entitle her to specific performance of defendant's agreement to convey. trary, placed her in possession under a contract of tenancy, which remained in force until the institution of this suit. Appeal from Pulaski Chancery Court; termine in whose favor the evidence prepon[1, 2] It is unnecessary to analyze and de John E. Martineau, Chancellor. Suit by Luevina Mitchell against L. W. Redus. From decree dismissing the bill, plaintiff appeals. Affirmed. derates in order to adjudge the issues involved in this appeal. Giving the evidence of appellant full credence, it shows either that she was placed in possession of the property un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |