pay the premium within the time allowed, ence only to the paid-up or cash value of his contract of insurance was not wholly the policy, a value which it had even after forfeited, but he had the following rights, the right to recover the full amount thereof to wit: (a) To have the policy reinstated at had been forfeited on account of the nonpayany time upon evidence of good health sat- ment of premiums. These letters did not isfactory to appellee, and by paying any in- disclose any intention on the part of the apdebtedness due the company, with interest pellee to treat the policy of insurance as in thereon at 5 per cent.; (b) to surrender the force for the full amount thereof, notwithpolicy for its cash value, $426, which was standing the failure upon the part of the inthe amount of his loan; (c) to have a paid-up sured to pay the premium. term policy for the full amount thereof (subject to be reduced by any indebtedness due the company), for a period of 12 years and 8 months, upon satisfactory evidence of good health; or (d) to have a paid-up policy without any action whatever on his part, in the sum of $900, subject to the loan. He did not avail himself of any of the rights that he had which required affirmative action on his part, and therefore at his death the only right remaining was that by which, without any action on his part, and by virtue of the automatic or self-executing provision of the policy, he was to receive paid-up insurance, which, under the table of values made a part of the policy, amounted to the sum of $900 out of which, under the terms of the policy, the loan from the company to him had to be paid.

[2] Furthermore, the death of Patterson fixed the rights of the parties to the insurance contract as they existed at that time, and any letter written by the appellee after Patterson's death, and without knowledge thereof, and addressed to him as though he were living, could not be considered as a waiver of appellee's rights under the insurance contract as they existed at the time of Patterson's death. At the time of the death of the insured, by reason of the nonpayment of the premium, the policy had elapsed, and he had been advised thereof, and only certain rights which involved affirmative action on his part remained to him, and of which he had not availed himself, and his death left only the right, by the very terms of the contract, to a paid-up policy of insurance for $900. The appellee, at the time of writing the letters, being ignorant of the death of Patterson, could not waive its rights fixed by his death, even if the letters would have otherwise constituted a waiver. There can be no such thing as a waiver of rights without knowledge of the facts upon which such rights are based. As was said by us in Planters' Mutual Ins. Co. v. Loyd, 67 Ark. 588, 56 S. W. 45, 77 Am. St. Rep. 136: "When the insurer, with knowledge of any act on the part of the assured which works a forfeiture, enters into negotiations with him which recognizes the continued validity of the policy, • * the forfeiture is waiv

the insurer is ignorant of the forfeiture and of the misstatement which causes it, no waiver can be implied." Capital Fire Ins. Co. v. Shearwood, 87 Ark. 326, 112 S. W. 878.

[1] Appellant contends that the letters written by the appellee on July 10, and July 23, 1912 (notifying the insured that unless the loan was paid the policy would be entered upon its records as a purchased policy, and the cash value applied in payment of the loan, and that in default of payment of the loan after notice, the policy had been entered on the records as a purchased policy), were sufficient to warrant the jury in finding that the payment of the premium had been waived, and that the policy was in full force at the time of the assured's death for the full amount thereof. But this contention cannot be sustained for several reasons. ed. But if, at the time of such negotiations, Even if the insured had been alive, as appellee supposed he was at the time these letters were written, there is nothing in the letters that tends to show, or that would warrant a jury in finding, that the appellee at that time was recognizing the contract of in- [3] After the death of the insured waiver surance as in force for the full amount there of the rights of appellee had passed, except of. These letters were in regard to the pay- such as might have been made based upon a ment of the loan from appellee to the in- knowledge of his death. There is no fact in sured, which was then past due. The letters the agreed statement of facts that would conhad no reference whatever to the restoration stitute a waiver of the right which appellee and continuing of the policy of insurance had under the provisions of the policy to defor the full amount thereof, but they only clare that the policy, and all payments therehad reference to the payment of the loan by on, had lapsed and forfeited to the appellee, applying thereto the cash value of the policy. except the right to a paid-up policy for a This, under the terms of the insurance con- certain amount, which was fixed by the terms tract, the appellee had the right to do. The of the policy. Where a policy contains a appellee had already notified the insured, as mandatory provision for forfeiture, and the the letters in the agreed statement of facts insured has failed to comply with it, a forshow, that the policy and all payments there- feiture of the rights based upon such complion had become forfeited and void except as ance results, and the courts must so declare. to a surrender or paid-up value. The letters It is not within their province to make

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1169-1178; Dec. Dig. § 277.*]

3. APPEAL AND ERROR (§ 1011*)—FINDINGS

CONCLUSIVENESS.

A finding on conflicting evidence and not against the preponderance of the evidence will not be disturbed on appeal.

Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1011.*1

based on such mandatory provision in a pol- | pay rent is deemed in equity as a mere security icy, is stated by Mr. Cooley in his Briefs on for the payment of rent. the Law of Insurance, vol. 3, p. 2277, as follows: "As a general rule, an insurance company is not required to declare a forfeiture on an insured's failure to comply with a provision making a policy void on insured's failure to pay a premium or premium note when due, in order that the forfeiture shall be available to the company." This court has invariably followed that rule, and it is the prevailing rule generally in this country. Jefferson Mutual Ins. Co. v. Murry, 74 Ark. 507, 86 S. W. 813; Fidelity Mutual Ins. Co. v. Bussell, 75 Ark. 25, 86 S. W. 814; Etna Life Ins. Co. v. Ricks, 79 Ark. 38, 94 S. W. 923; Wells v. Union Central Life Ins. Co., 81 Ark. 145-147, 98 S. W. 697; American Ins. Co. v. Hornaargar, 85 Ark. 337, 108 S. W. 213; National Life Ins. Co. v. Morris, 104 Ark. 288, 148 S. W. 1019; Lenon v. Mut. Life Ins. Co., 80 Ark. 563, 98 S. W. 117, 8 L. R. A. (N. S.) 193, 10 Ann. Cas. 467. See, also, the authorities from other jurisdictions cited in the brief of counsel for the appellee.

The rule is different, however, "where the policy merely provides that on insured's failure to pay the premium within a specified time after it becomes payable, the company shall be at liberty to cancel it without further notice." In such cases "the policy does not become void merely by nonpayment of the premium, but remains in force until affirmative action is taken by the company to cancel it." Cooley's Briefs on the Law of Insurance, vol. 3, p. 2278, and cases cited. See Lenon v. Ins. Co., supra. The latter doctrine has no application to the facts of this record, for here the policy contained the mandatory provision, "This policy shall lapse and, together with all premiums paid thereon, shall forfeit to the society on the nonpayment of any premium due, except," etc. Upon the nonpayment of the premium, under the above provision of the policy, the same ipso facto became forfeited, except as therein provided.

The court did not err in directing a verdict. The judgment based thereon is affirmed.

CHATWIN et al. v. M. J. SEISEL & CO. (Supreme Court of Arkansas. March 23, 1914.)

1. LANDLORD AND TENANT (§ 180*)-EVICTION

-EVIDENCE-SUFFICIENCY.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by A. G. and Sam Chatwin against M. J. Seisel & Co. From a decree granting insufcient relief, plaintiffs appeal. Affirmed.

Terry, Downie & Streepey, of Little Rock, for appellants. J. W. & J. W. House, Jr., and A. F. House, all of Little Rock, for appellee.

HART, J. On July 8, 1912, A. G. and Sam Chatwin instituted this action in the chancery court against M. J. Seisel and L. W.

Pfeifer, doing business as "M. J. Seisel & Co." The complaint alleges substantially the following: That on the 15th day of June, 1905, Chatwin Bros. & Clegg Sand Company, a corporation doing business under the laws of the state of Arkansas, entered into a written contract with the defendants, whereby they leased from them a strip of land 100 feet wide, beginning at the east side of Cumberland street, and embraced in that part of the city of Little Rock north of the right of way of the St. Louis, Iron Mountain & Southern Railway Company, and situated between said right of way and the river; that said lease was assigned by the original lessee to the plaintiffs; that at the time of the institution of this suit there were about five years of the term of the lease unexpired, and that the rent was payable in advance at the rate of $30 per month; that in October, 1910, and thereafter, the defendants, without the plaintiff's knowledge or consent, began to use a large part of said premises as a store place for junk; that defendants have refused to remove said junk from the premises; that plaintiffs have tendered to defendants all the rent due on said premises; and that defendants have refused the same. The prayer of the complaint is that the defendants be restrained from interfering with the possession of the premises by the plaintiffs; that they be required to remove therefrom all the junk and other materials which they have deposit

Evidence held to sustain a finding that a tenant was not excluded from the leased prem-ed on the premises; and that plaintiffs reises by the acts of the landlord.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 715-729; Dec. Dig. § 180.*]

2. LANDLORD AND TENANT (§ 277*)-FAILURE TO PAY RENT - RE-ENTRY BY LANDLORD EFFECT IN EQUITY.

The action of a lessor in exercising his right to re-enter for the lessee's failure to

cover from defendants all damages which they have sustained by reason of the action of the defendants. The defendants filed an answer denying all the material allegations of the complaint. The chancellor found that the plaintiffs had not been evicted from the premises and were not entitled to any damages by reason of the use of said premises by

the defendants, but that plaintiffs ought not was introduced by the plaintiffs tending to to be required to pay defendants any rent for show that during the year 1912 the defendsaid premises from the time they gave de ants had practically covered the whole of fendants notice in June, 1912, to remove the the premises with junk. On the other hand, Junk until the date of the decree. The chan- the defendants introduced evidence tending cellor entered a decree providing that plain- to show that they did not pile junk on the tiffs pay to defendants whatever sum may be leased premises to any material extent until due for rent up to the time they made defend- in March, 1912, and that they did so then beants a tender of rent in June, 1912; that up-cause the plaintiffs had ceased to pay rent on the payment of said sum the defendants on the 1st day of January, 1912, and therebe required to remove from said premises all the junk and material which they have deposited on the same; and that they be restrained from placing any junk on said premises thereafter. The plaintiffs excepted to that part of the decree refusing them damages against the defendants, and prayed an appeal to the Supreme Court.

Counsel for plaintiffs state that they have only appealed from that part of the decree refusing to award damages against the defendants, and contend that the decree of the chancery court in this respect is erroneous. They insist that the preponderance of the evidence shows that in the latter part of the year 1910 the defendants began to pile junk on the premises, and continued to do the same during the year 1911; that during the year 1911 the defendants piled junk on the premises to such an extent that they practically occupied the whole of the same. On the other hand, the defendants introduced testimony tending to show that they did not pile any junk on the premises until during the spring of 1912.

after.

[1] It is contended by counsel for plaintiffs that a greater number of witnesses testified that the defendants, in January, 1912, practically covered the whole premises with junk, and that the witnesses for the plaintiffs were of equal credibility with those of the defendants, and therefore they insist that a preponderance of the evidence was against the finding of the chancellor, and that they should not be charged with any rent during the year 1912. It will be noted that the rent was payable in advance on the 1st day of every month, and the lease contained a stipulation providing for re-entry on the part of the defendants in case of a violation of any of the covenants of the lease. It is true the plaintiffs had the greater number of witnesses, and they testified that early in January the leased premises were practically covered with junk. These witnesses, however, did not all state whether or not the junk belonged to the defendants or was piled there by them. On the other hand, the defendants and their clerk, who were all actively engaged in conducting their business, testified positively that they did not pile junk on the premises to any appreciable extent until in March, 1912, and that they only did so then because the plaintiffs had ceased paying rent and they presumed they intended to abandon the lease; that at the time the plaintiffs had a lot of old machinery piled around over the premises. So it may be said that some of the junk referred to by the witnesses for plaintiffs was not junk piled there by the defendants, but was a part of the old machinery of the plaintiffs. Moreover, when one of the plaintiffs, who managed their business, returned to Little Rock in June, 1912, he examined the prem

We think the finding of the chancellor is not against the preponderance of the evidence. On June 21, 1911, the plaintiffs ceased to do business in the state of Arkansas, and thereafter only used the leased premises to store their machinery. The manager of the plaintiffs left in September, 1911, and admits that at the time he left the defendants had not stored junk on but a little part of the premises. The defendants themselves occupied the premises just west of the leased premises and stated that they did not pile any junk on the leased premises during the year 1911. So it may be said that a preponderance of the evidence does not show that the occupation of the premises by the plaintiffs was disturbed to any material ex-ises and knew to what extent the defendants tent during the year 1911, and the finding of the chancellor in favor of the defendants in this respect should not be disturbed.

The plaintiffs sublet a portion of the leased premises during the year 1912, and testify that they were informed, early in January, by their subtenants, that the defendants had begun to pile junk on the premises to such an extent that their possession was interfered with; that on this account they then ceased to pay rent, and did not offer to pay rent until some time in June, when one of the plaintiffs came back to Little Rock and made a tender of the rent due on the premises up to

had been piling junk there. With this knowledge, and after an investigation of the conditions as they existed then, he made a tender to the defendants of the rent due during the year 1912 up to and including the month of June. This tender was refused by the defendants on the ground that the plaintiffs had forfeited their rights under the lease.

[2] When the plaintiffs filed this bill, they again offered to pay the rent for the year 1912 up to and including June. Under the stipulations contained in the lease, the defendants had a right to re-enter the prem

Upon determining that a sale by former wards of land to their guardian was procured by the guardian's fraud in an action to recover the land and for an accounting, the wards are entitled to recover interest on all of the purchase money received by the guardian for a part of the land, which he afterwards sold, during the time they would have been entitled to receive all of the rents from such land.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 242-253; Dec. Dig. § 54.*]

tiffs to pay rent, and such act on the part | 4. GUARDIAN AND Ward (§ 54*)—ACCOUNTING -RELIEF. of the defendants is regarded in equity as a mere security for the payment of rent. See Abrams v. Watson, 59 Ala. 524; Wilson v. Jones, 1 Bush (Ky.) 173. Moreover, the plaintiffs were never evicted from the premises. After they ceased doing business in the state of Arkansas, they continued to use the leased premises as a place of storage for their machinery, and so used it in 1912. The defendants did not take possession of that part of the leased premises occupied by plaintiffs' machinery and only piled junk on that part not used by the plaintiffs. Thus, it will be seen that the plaintiffs, with a knowledge that the defendants claimed that they had piled the junk on the premises because the plaintiffs had failed to pay the rent and because they considered that the plaintiffs had abandoned the leased premises, again made a tender of the rent. This action on the part of the plaintiffs tended to show that they recognized that the claim of the defendants was just, or at least that they acquiesced in it.

[3] We have not attempted to set out all the testimony introduced, but have considered it carefully; and, when all of the facts and circumstances which we have referred to are considered, we do not think it can be said that the finding of the chancellor is against the preponderance of the evidence, and, under the settled rules of this court, it will not be disturbed.

It follows that the decree will be affirmed.

WALDSTEIN v. BARNETT et al. (Supreme Court of Arkansas. March 16, 1914.) 1. GUARDIAN AND WARD (§ 69*) SALE OF LAND RIGHT OF GUARDIAN TO PURCHASE.

A guardian may purchase his ward's property, provided the contract for its purchase is shown, on close scrutiny, to be made for a fair consideration, without any fraud or concealment of facts by the guardian, which the ward should know in making the sale.

[Ed. Note. For other cases, see Guardian and Ward, Cent. Dig. 88 261, 305-307; Dec. Dig. 69.*]

2. GUARDIAN and Ward (§ 131*)-ACTIONS BY WARD-SUFFICIENCY OF EVIDENCE-FRAUD.

In an action by former wards to recover a lot sold to their guardian and for an accounting for rents, evidence held to sustain a finding that the sale was induced by the guardian's fraud.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 447-451; Dec. Dig. § 131.*]

3. GUARDIAN AND WARD (§ 69*) - SALE TO GUARDIAN-DUTIES OF GUARDIAN.

A guardian purchasing his ward's property was chargeable with notice that the ward had a special homestead interest in the property, and was bound to inform the ward of that fact before purchasing, and cannot excuse his failure to do so by claiming that he did not himself know of such interest.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 261, 305-307; Dec. Dig. § 69.*1

Appeal from Garland Chancery Court; J. P. Henderson, Chancellor.

Action by Minnie McCollum Barnett and From a others against Victor Waldstein. judgment for plaintiffs on condition, defendant appeals. Affirmed as modified.

Appellees sued to recover a certain lot situ. ated in the city of Hot Springs, and for an accounting for the rents thereon. They alleged that, at the time of the mother's death, said property was occupied as a homestead, and at her death descended to her children, the plaintiffs herein, and their brothers and sisters in equal shares, subject, however, to the right of those who were minors to occupy said property under the homestead laws. That at their mother's death the defendant Waldstein and his wife, who is their sister, had charge of the persons and property of the plaintiffs, and appellant became their guardian. It was alleged that appellant concealed from appellees their homestead rights, and fraudulently misrepresented its value to them, and caused them to have their disabilities removed, and purchased their interest in the lot at a grossly inadequate price. A part of the lot in question had been sold by appellant to one Kittleberger, and there was no prayer to have this sale set aside; but appellees asked that they be given their proper share of the consideration received upon said sale.

Appellant denied that he had practiced any fraud upon appellees in procuring the removal of their disabilities and the execution of the deed from them, and denied there was any inadequacy of consideration, but stated the fact to be that he bought appellees' interest at their request and paid them the fair market value for the lot. The court found that fraud had been practiced in procuring the sale and ordered it set aside, except as to the part reconveyed to Kittleberger, and ordered an accounting between the parties. Other facts will be stated in the opinion.

Martin & Wootton, of Hot Springs, and Robert Martin, of Little Rock, for appellant. A. J. Murphy, of Hot Springs, for appellees.

SMITH, J. (after stating the facts as above). [1] Notwithstanding the fiduciary relation between appellant and his wards, he still had the right to purchase their property. But this was not an absolute right to be