Action by John L. Wilson against Hempstead County. From judgment for plaintiff, defendant appeals. Affirmed. U. A. Gentry, of Hope, for appellant. McCULLOCH, C. J. Appellee Wison is county clerk of Hempstead county and filed a claim for fees against the county in the following form: "Washington, Ark., April 28, 1919. "County of Hempstead, to John L. Wilson, County Clerk, Dr. "Services in and about County Court, Fee Book, pages 165 and 166, $133.05." der promise to convey it to her, on condition [ she would not prosecute appellee for carnal abuse or sue him for damages, or else under a voluntary oral gift. A court of equity will not enforce specific performance in either case. First: "Any contract, the consideration of which in whole or in part is to conceal a crime or to stifle a prosecution therefor, is illegal and void, though it may represent a just debt and security for its payment." Goodrum v. Merchants' & Planters' Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511. Appellant's evidence carries an admission that the consideration, in part, for the sale and seisin of the lots was to stifle a prosecution for carnal abuse. This necessarily rendered the contract void and nonenforceable as against public policy. Second: "A parol gift of land will not be enforced unless followed by possession and by valuable and substantial improvements made by the donee, or unless there are some other special facts which would render the failure to complete the donation peculiarly inequitable." Young v. Crawford, 82 Ark. 33, 100 S. W. 87. The evidence is entirely barren of special facts in relation to the property, or its occupancy which would render the failure to complete the donation peculiarly inequitable and unjust. Likewise, the betterments placed upon the property by appellant were too in-appellee were based upon services performed consequential to be classed as valuable and permanent. No error appearing, the decree is affirmed. HEMPSTEAD COUNTY v. WILSON. (No. 16.) (Supreme Court of Arkansas. May 31, 1920.) 1. Appeal and error 907 (5)-Court must assume documentary evidence not in exceptions had force for successful party. Where the testimony of a witness as set forth in the bill of exceptions shows that he testified from certain documentary evidence, and that it constituted a part of the evidence in the case, but it was not copied in the bill of exceptions, the Supreme Court must assume that such documentary evidence had some probative force in establishing the claim of plaintiff, who secured judgment. An affidavit in statutory form was attached to the claim. The county court allowed $99.15 of the claim, but refused to allow the balance, and appellee prosecuted an appeal to the circuit court, where, on a trial anew, the claim was allowed in full. [1] It is contended that there was not sufficient evidence to sustain the judgment. Mr. O. C. Bailey, the clerk of the circuit court, was introduced as a witness, and testified concerning appellee's fee bill, and as to the method of making out circuit court fee bills. It appears from the testimony that the fees of with reference to the fee bills approved by the circuit court and filed with the county court for allowance. The testimony of Mr. Bailey, as set forth in the bill of exceptions, showed that he testified from the itemized circuit court fee bills, and they constituted a part of the evidence in the case; but they were not copied in the bill of exceptions. We must assume therefore that those fee bills had some probative force in establishing appellee's claim in connection with the testimony of Mr. Bailey. It is also contended that appellee's claim was not presented in proper form, in that it was not itemized as required by statute, which provides that "The county court shall require an itemized account of any claims presented to them for allowance, sworn to as required by the preceding section, and may, in all cases require satisfactory evidence, in addition thereto, of the correctness of the account, and may examine the parties and witnesses on oath touching the same." Kirby's Digest, § 1454. [2] Appellee's claim as filed did set forth the pages of the fee book in the office of the county clerk for the specification of the items. No objection as to the insufficiency of the specification of the items was made in the court below, and it is too late to raise that question here for the first time. If objection had been made on that point, the court could have permitted amendment. (222 S.W.) We are of the opinion therefore that there are no grounds for a reversal of the judgment, and the same is affirmed. PATTON et al. v. TAYLOR. (No. 13.) (Supreme Court of Arkansas. May 24, 1920.) I. Insane persons 71-Chancery court held to have jurisdiction to cancel curator's deed. A court of chancery has jurisdiction of a suit to cancel a deed given by a curator under order of court, expunge it from the record, and to regain possession of land, the remedy at law either by motion to vacate or by certiorari not being effective to reach cancellation or to expunge the deed from the record, and therefore not being adequate and complete. 2. Insane persons 94(1)-Court may inquire into defendant's sanity for purpose of particular suit. It is proper when a defendant not under guardianship develops evidence of insanity for the court to inquire into his mental condition for purposes of the particular suit in order to protect his interests by the appointment of a guardian or next friend to defend for him. 3. Insane persons 87-Power to sue and be sued stated. An insane person not under guardianship may sue and be sued the same as a sane per son. 4. Appeal and error 174-Former insanity of party cannot be first raised on appeal. In a suit by a plaintiff formerly insane to cancel a curator's deed and certain judgments and orders, defendants, not having initiated an inquiry into plaintiff's sanity below, cannot, on appeal, insist that the suit should have been dismissed on account of the insanity of plaintiff below. under such statute to the extent of the enhanced value of the lands by reason of their improvements. 7. Improvements 4 (2)-Test of good faith under betterment statute stated. To entitle an occupant of land to remuneration for his improvements under the betterment statute, the test of good faith is whether he made the improvements in the honest belief that he was the true proprietor, and in ignorance that any other person claimed a better right to the land. 8. Insane persons 71-Purchaser held enti tled to value of improvements in suit by ward to cancel deed. The purchaser of land under a curator's deed, given under void judicial proceedings, who make improvements upon the land, held entitled, in a suit by the ward to cancel the deed, to a lien on the land for its enhanced value by reason of the improvements made by him. 9. Improvements 4 (5) - Under betterment statute, recovery may be had for enhanced value of land. In allowing for improvements under the betterment statute, evidence should be considered as to the enhanced value of the land by reason of the improvements, and the cost of the improvements is merely a circumstance tending to establish such enhanced value. Appeal from Benton Chancery Court; B. F. McMahan, Chancellor. Suit by Amanda E. Taylor against J. W. Patton and others, to cancel a deed and certain orders and judgments. Decree for complainant, and defendants appeal. Affirmed in part, and in part reversed and remanded, with directions. Rice & Rice, of Bentonville, for appellants. HUMPHREYS, J. Appellee instituted suit against appellants in the Benton chancery court to cancel a deed from M. C. Patton, as 5. Insane persons 70-Probate court held not to have jurisdiction to sell realty of non-curator, to J. W. Patton, of date September resident insane person. Acts 1905, p. 198, §§ 1, 2, not authorizing appointment of guardian for nonresident insane person on sale of property in this state by local guardians, and section 3, limiting the jurisdiction of probate courts over the property of nonresidents to authority to appoint guardians and to sell upon proper bond, do not give a probate court jurisdiction over the person or property of a nonresident insane person so as to authorize a local guardian to make a valid conveyance of such insane person's realty. 6. Improvements 4(1)-Purchaser of land under void judicial proceedings not precluded from benefits of betterment statute. A purchaser of land under a curator's deed given by order of court under void judicial proeeedings is not thereby precluded from the benefits of the betterment statute, since occupants of land under color of title, who make improvements thereon in good faith believing themselves to be the owners thereof, are protected 9, 1916, conveying the following described For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes days' notice in a newspaper published in said county, as provided in said section. Pursuant to said order, the land was sold at public sale, after 20 days' notice in a newspaper of general circulation in said county, to J. W. Patton, the highest bidder at said sale, for $1,000, the full value of the land, according to the evidence. The sale was reported to, and confirmed by, the court. A deed was ordered, executed, approved, and delivered to the purchaser, J. W. Patton, who took possession of the land and began to make improvements thereon after the sale, and completed them after procuring and recording his deed. The improvements consisted of clearing, digging a well, building a house and barn, etc. At the time and prior to the appointment of M. C. Patton as guardian for appellee aforesaid appellee had been a resident of Oklahoma for eight or nine years, and was adjudicated insane, and confined in the asylum at Vinita in said state on the 1st day of July, 1916, where she remained until June, 1917, at which time she was discharged, as recovered. The chancery court canceled the deed, orders, and proceedings of the probate court in relation to the sale of the lands, decreed possession thereof to appellee, denied appellant, J. W. Patton, a lien on the land for his improvements, but permitted him to remove them in so far as it was possible without injury to the land. From that judgment and decree an appeal has been duly prosecuted to this court. [1] Appellants contend that the chancery court had no jurisdiction to try the cause, because appellee had a complete and adequate remedy at law, either by motion to vacate the orders and judgments of the probate court or by certiorari to quash them. The gist of the action was to cancel the deed, expunge same from the record, and regain possession of the land. The remedy at law, either by motion to vacate the judgment or by certiorari, would not have reached the canIcellation of the deed or the expunging of same from the record, and therefore would not have been adequate and complete. ests by the appointment of a guardian or next friend to defend for him. Peters v. Townsend, 93 Ark. 103, 124 S. W. 255. Such inquiry might be appropriate to protect a sane defendant against the unauthorized suit of an insane person, but no such inquiry was suggested or demanded by appellants, and none was made on the court's own motion. An insane person, not under guardianship, can sue and be sued the same as a sane person. Peters v. Townsend, supra. Not having initiated such inquiry in the court below, appellants cannot now insist that the suit should have been dismissed on account of the insanity of appellee, the plaintiff below. [5] It is next insisted that the probate court had jurisdiction of the subject-matter of litigation, and that the proceedings therein are not subject to attack. The probate court of Benton county had no jurisdiction over the person or property of appellee, and could acquire none by the appointment of a local guardian. Sections 1 and 2, Act 77, Acts 1905, do not authorize the appointment of a guardian for a nonresident insane person, nor the sale of such an one's property in this state by local guardian. Those sections only apply to insane citizens of this state confined in institutions or asylums for insane, either in or out of the state. Section 3 of said act governs with reference to the sale of the property of nonresidents who are insane. That section limits the jurisdiction of the probate courts of this state over the property of nonresidents who are insane to authority to order the duly appointed guardian, or his agent under power of attorney, in the state of his residence, to sell said property and receive the proceeds therefor upon the execution of proper bond. The proceedings therefore, of the probate court of Benton county, in appointing a local guardian to sell the real estate in question, were without authority and void. [6-9] Lastly, it is insisted that the court erred in denying appellant, J. W. Patton, remuneration for his improvements to the ex[2-4] It is next insisted that the court tent that they enhanced the value of the real. should have dismissed the cause, because not estate. The mere fact that he purchased the brought by guardian or next friend. This land under void judicial proceedings cannot suit was filed on August 1, 1919, after appel- preclude him from the benefits of the betterlee had been discharged from the Vinita asyment statute. Occupants of land under color lum, as recovered. The certificate of the of title, who make improvements thereon in medical superintendent of that institution is as follows: "I hereby certify that Amanda E. Taylor was received in this institution on the first day of July, 1916, from Ottawa county and discharged June, 1917, as recovered." The evidence tended to show appellee was afflicted with periodical insanity, having lucid intervals. It is proper, when a defendant, not under guardianship, develops evidences of insanity for the court to inquire into his mental condition for purposes of the particular suit, in order to protect his inter good faith, believing themselves to be the owners thereof, are protected under that statute to the extent of the enhanced value of the lands by reason of their improvements. To entitle an occupant to remuneration for his improvements, the test of good faith is: Did he make them in the honest belief that he was the true proprietor and in ignorance that any other person claimed a better right to the land? Beard v. Dansby, 48 Ark. 183, 2 S. W. 701. Applying that test in this case, we think appellant, J. W. Patton, was entitled to a lien on the land for its enhanced (222 S.W.) 5. Trial 177 Requested Instruction on clauses of policy held to preserve right to submission, though peremptory instruction also requested. value by reason of the improvements made | ed another instruction, submitting the issues to by him. Practically all the improvements the jury, it did not waive its right to such subwere after he obtained a deed to the land. mission. All the parties connected with the transaction thought the proceedings to sell the land were legal. There is nothing from which collusion in the sale and purchase thereof can reasonably be inferred. The property sold for its full value. J. W. Patton was a young farmer, inexperienced in titles. The evidence with reference to the value of the improvements consisted largely of the cost thereof. It should have been directed to the enhanced value of the land by reason of the improvements. The cost thereof would only be a circumstance tending to establish the enhanced value of the property on account of the improvements. For the error indicated, the decree is reversed, in so far as it denied appellant, J. W. Patton, a lien on the land for the enhanced value thereof because of the improvements he made thereon, and the cause remanded, with directions to proceed in accordance with this opinion. In all other respects, the decree is affirmed. INTER-STATE BUSINESS MEN'S ACC. ASS'N V. SANDERSON. (No. 18.) (Supreme Court of Arkansas. May 31, 1920.) 1. Insurance 665 (5)-Insured held prevented from attending to business by disease. In an action on a health policy evidence held to warrant the finding that insured was compelled by disease to refrain from performing every act of business, and was under the constant care of a physician, etc. 2. Insurance 525 Insured may "remain continuously and strictly within the house" within policy, though he takes outdoor exer. cise. Where a health policy provided benefits if the insured should by disease be compelled to "remain continuously and strictly within the house" under treatment of a regular physician, the fact that insured took air and exercise under direction of his physician will not preclude recovery, but insured cannot recover if the disease was one which required him to remain outside of the house rather than within it; the insurer having fixed the terms of the contract. 3. Insurance 668(11) Whether insured confined to house within health policy held for jury. In an action on a health policy, where the insured claimed the benefit prescribed for strict confinement in the house, the question whether he was so confined, it appearing that he made daily trips for medicinal waters, etc., held for the jury. In an action on a health policy where both the insured and insurer requested peremptory instructions, the insurer's requested instruction, submitting the two clauses of the policy under which the insured claimed benefits, was sufficient to preserve its right to submission of the issues to the jury; the clause being selfexplanatory. 6. Evidence 589-Jury not required to accept uncontradicted testimony of party. Where plaintiff was one of the principal witnesses in his own behalf, the jury are not, because of his interest, bound to accept his testimony. Appeal from Circuit Court, Miller County; George R. Haynie, Judge. Action by H. G. Sanderson against the Inter-State Business Men's Accident Association. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. Arnold & Arnold, of Texarkana, for appellant. M. E. Sanderson, of Texarkana, for appellee. MCCULLOCH, C. J. This is an action on a policy of insurance issued by appellant to appellee, insuring appellee "against loss of time by disease not due to accidental injury." The two clauses of the policy on which the action is founded read as follows: "Loss by Disease. "House confinement $50.00 first week and 29 succeeding weeks. "The insurance provided shall cover only in the event that the disease shall compel the in sured to remain continuously and strictly within the house for a period of or exceeding two full weeks and be under the constant treatment of a regular physician. "Nonconfinement $15.00 first week and $20.00 for 8 weeks. "The insurance provided shall cover only in the event the disease shall compel the insured to refrain from performing every act of business and be under the constant treatment of a regular physician." Liability is asserted for the maximum amount ($175) allowed under the second clause, and for 25 weeks, or $1,250, under the 4. Trial 177 - Requested instruction not first clause. Appellant conceded liability waived by request for peremptory instruction. for the amount sought to be recovered under Though both parties requested perempthe second clause, and tendered the amount tory instructions, yet where defendant request- to appellee. On the trial of the issues before For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a jury the court gave a peremptory instruction in appellee's favor. The question now before us on this appeal is whether or not the testimony presented an issue which should have been submitted to the jury. course of conduct and the progress of the disease is disclosed entirely by appellee's own testimony, as he did not introduce any other witness as to his stay at Marlin Wells. Appellee stated in his testimony that he was confined to the house during his stay there, except that he made a daily trip to the post office to get his mail, and made trips a distance of four blocks, to the wells to get water twice a day, and that he occasionally would stop for a short time at one of the stores along the way and make a purchase. He testified that there was a large pavilion at the well, and that he would occasionally sit there for half an hour at a time, and that while at home he spent much of the time sitting out on the porch. On cross-examination of appellee it was drawn out that he had made two or three statements to appellant, and in response to the question whether or not that he had been "strictly and continuously confined within the house" he answered in the negative. [1] The case was tried on the testimony of appellee himself and Dr. Phillips, who was appellee's physician. Appellant introduced no testimony at all. Appellee resided at Ashdown at the time he was stricken with the disease which caused the loss of time involved in this inquiry, and was engaged in farming and in the retail lumber business. He was manager of a lumber yard, and look ed after the office work, as well as the outside business. He became ill in the early part of the year 1918 while the policy was in force, and on consulting Dr. Phillips it was found that he was suffering with nephritis. On March 13, 1918, the physician pronounced appellee's condition of health to be very serious, and thereafter appellant gave but little attention to business, and his condition of health continued to grow worse. The testimony tended to show that he was entirely unable to give attention to business, and that he merely went down to his place of business, from time to time, to attend to business to a very limited extent. The evidence was sufficient, we think, to justify the finding that appellee's disease was sufficient to cause him to "refrain from performing every act of business and be under the constant treatment of a regular physician," within the meaning of the second clause of the policy. However, appellant concedes liability on this branch of the case, and it is unnecessary to discuss the pel the insured to refrain from performing evidence at length so far as it tends to estab-every act of business and be under the conlish liability under that clause. On July 5, 1918, Dr. Phillips, who had been attending appellee regularly up to that time, advised him that his condition had become so serious that he should give up all matters of business and pleasure and go to Marlin Wells, Tex., to receive the benefit of the water and climate of that place. The physician also advised appellee that the fresh air and sunshine of that climate, together with the water, would do more to build him up than anything else. At that time appellee had become very much weakened from the disease and was easily fatigued. To use the exact language of the physician, his testimony was that "The fresh air and sunshine to this patient were more beneficial than remaining in the house, and tended to arrest the disease from which he was suffering." Each side asked for a peremptory instruc tion, and in addition to that appellant asked the court to give the following instruction: "You are instructed that the policy sued on herein reads that plaintiff is entitled to recover only in two events: "First. In the event the disease shall compel the insured to remain continuously and strictly within the house for a period of or exceeding two full weeks and be under the constant treatment of a regular physician, he is entitled to recover $50 for the first week and 29 succeeding weeks. "Second. In the event the disease shall com stant treatment of a regular physician, he is entitled to recover $15 for the first week and $20 per week for eight weeks, and you are instructed that the plaintiff is entitled to recover nothing herein except as provided for in said time as he was only partially disabled on acpolicy covering total disability, and for such. count of illness, he is entitled to recover noth ing." [2-4] It is contended by learned counsel for appellant in the first place that according to the undisputed evidence there can be no recovery under the first clause of the policy, for the reason that appellee's disease was not sufficient to compel him "to remain strictly and continuously within the house" within the meaning of the terms of the policy. It is argued that according to appellee's own testimony he was not continuously confined to his house by the disease, but that he left the house each day for the purpose of making Pursuant to the physician's advice, appel- trips to the well and certain other purposes. lee sold out his business and moved to Mar- On the other hand, it is contended by appellin, Tex., where he remained for a consider-lee that according to the undisputed evidence able time for the purpose of getting the benefit of the mineral water and the climate at that place. He was under the treatment of another physician while he was there, but his he was confined to the house continuously within the meaning of the policy, and that the court was correct in giving a peremptory instruction. We are of the opinion that this |