"I began at the southwest corner of the, 30 years previously, and that he had decided Thompson and, because I knew that corner to to sustain Woolverton's survey. This decibe correct I then ram east 20 -chains and 20 sion gave the disputed strip of land to aplinks, and set the southeast corner of the pellee. The court directed counsel to prepare Thompson land and the southwest corner of the decree in accordance with this finding, and if they were unable to agree to advise him. The precedent for the decree was not prepared, and when the regular June, 1926, term of the court convened, it appeared that counsel' for appellee had prepared a brief on the question of damages, which had been served on the former attorney for appellant but had not been served on the attorney then representing appellant, and the cause was set down for a later date to afford counsel for appellant an opportunity to file a brief on the question of damages, but when that day arrived appellee waived the damages, and a final decree was entered on the record in appellee's favor.

the Darr land. Then I ran north 40 chains and 16 links to the northeast corner of the Thompson land, which is the northwest corner of the Darr land. Now I will state that the government field notes only give one mile even on the south line of section 33, but by actual measurement from corner to corner I find that it is one mile and 80 links. I therefore divided that into the forty-acre tracts, giving to each forty 20 links on the south boundary of section 33. I did that when I surveyed the Cook land. Cook owned the land south of 33, and also owned the lands that Darr owns in 34, and in surveying that I surveyed from one corner of section to the other, and the witness trees at the corner were still standing. I found, as I stated, there were 80 links more in measurement than the government field notes give it, and that is why I made the division as I did, giving 20 links to each forty. My survey does not vary from the government field note on the south side of section 33. I can explain that, I think, to your satisfaction. The law is, and that is the instructions that we get, too, where

we find that our chain measures more than is given in the government field notes, that we adjust our chain so as to make the measurement they do. Instead of changing my chain I made the division by my chain as I measured it. We are compelled to accept the corners as established by the government, and we have to adjust our measure to that. There are 80.8 across in the east half of the southeast quar

ter of section 33."

The fact that the south line of section 33 is one mile and 80 links in length, instead of an exact mile, is one of the facts out of which the differences in the surveys arise.

H. L. Wright, another surveyor, testified that Woolverton's survey was correct. The surveys by the other three surveyors give appellant the strip of land in controversy, but there are certain differences in these surveys, which we will not set out, which make it very probable that they were not as accurate in the location of the essential corners as Woolverton had been. Woolverton's testimony makes it clear that if his survey is not correct, the boundary lines of adjacent lands, which have long been accepted as correct, are erroneous to the same extent that appellant claims the disputed line is in error.

[2] At the same term of court appellant filed a petition to vacate the decree and to reopen the case and to hear further testimony, it being alleged that the original decree had been based upon the testimony of Woolverton, and that Woolverton had conceded that his testimony was erroneous and that the survey giving the disputed strip of land to appellant was correct. Accompanying this petition were the affidavits of S. G. Davies and B. F. Stermer, surveyors, who had originally testified in appellant's behalf, to the effect that Woolverton had admitted the correctness of the surveys made by affiants.

The court announced that the case would not be reopened except for the purpose of determining whether Woolverton had admitted the inaccuracy of his survey, and the petition appears to have been treated as a proceeding under section 1316, C. & M. Digest, which provides that when grounds for a new trial are discovered after the term at which the verdict or decree was rendered, application may be made not later than the second term after the discovery to set aside the judgment or decree. It was agreed that the affidavits accompanying the petition should be treated as depositions, and Woolverton was orally examined before the court. These affidavits were to the effect that after the final submission of the cause, the affiants, accompanied by Woolverton, re-ran the lines in question, and this survey established the line for which appellant contends, and that Woolverton conceded that this survey was correct and his own previous survey incorrect. These affiants recited various circumstances connected with the survey made in Woolverton's presence, some of which Woolverton admitted, while others he denied.

After the depositions of a large number of, witnesses had been taken, the cause was submitted to the court in May, which was an adjourned term of the regular January, 1926, term of the chancery court. The cause was submitted under an agreement that respective counsel might file briefs and a final decree be rendered in vacation settling the bound- The court refused to permit Woolverton to ary line, but reserving the question of dam- again testify as to the accuracy of his survey, ages. A few days after the submission, the but did permit him to make the following excourt advised counsel in the case that he re-planation of his acquiescence in the survey of called that Woolverton testified that his last Stermer, which survey was made in the pressurvey coincided with the one he had made ence of himself and Davies:

(298 S. W.)

"At the time that Thompson was talking to [ed by Woolverton, which did not extend, howme (about the survey made after the submis- ever, the entire length of this dividing line. sion of the cause), I thought that Stermer had It may be said, also, that Woolverton was cormade the right division. After figuring on it rect in his apportionment of the excess of the that night, I decided that he made the wrong 80 links more than the mile which the governdivision as to the line between Thompson and Darr, and next morning I went to talk with ment field notes showed to be the length of him and learned he had gone to the bottoms. the south line of section 33, the apportionment I then hunted up Mr. Davies, and told him that being the addition of 20 links to the south we had made a mistake that evening before as line of each 40-acre tract bounded by the to the location of the line between Darr and south line of the section. Thompson; that I wanted to go up there and check it over from the nearest known corner

[3] The surveyor could not change the corand see if we had made a mistake. Mr. Davies ners established by the government survey, as claimed we had made no mistake and he did these fixed monuments prevail over both not care about it, so I hired a man and went course and distance. Meyer v. Board of Imp. there and checked over the line from the same Pav. Dist. No. 3, 148 Ark. 623, 231 S. W. 12. starting point, and I gave Thompson 20 chains Section 2396 of the U. S. Revised Statutes (U. and 20 links as I did in the first survey, and IS. Comp. St. § 4804) so provides. found that the iron stake that I had put up that time had been moved. I then called Thompson's man on the farm up there and marked the place where the line should be, at 20 chains and 20 links east of the quarter section corner on the south side of section 33, which Stermer and Davies accepted as the true corner, and I measured east from the 20 chains and 20 links, marked the place, and called Thompson's man down there and showed him where the corner should be."

Having thus explained his acquiescence in the Stermer survey, Woolverton stated that his rechecking located the corner as he had located it in his previous surveys, and that this established the line as originally testified by him, and that his former testimony was correct.

We think the finding and decree of the court fixing the line in accordance with Woolverton's testimony is not against the preponderance of the evidence; and we are also of the opinion that the court was warranted in refusing to set aside its decree upon the ground that Woolverton conceded that his first testimony was erroneous.

In this connection it may be said that it clearly appears that the line contended for by appellee between the east and west half of the southeast quarter of section 33 has been apparently acquiesced in for many years. Appellee testified that he had an agreement with appellant's predecessor in title as to the line under which he built the fence which appellant tore down on the line which appellee contends is correct.

It was also shown that at one time a Ger

man, whose name is not stated, was in possession of the west half of the southeast quarter section 33, and that he had cleared a strip of land along the east side thereof, and Woolverton testified that he made a survey at least 20 years before the trial of the line between the east and west half of this quarter section, and that it appeared from this survey that the German had cleared over the line and, the German accepted this survey as correct and built a levee on the line as establish

The Supreme Court of Wisconsin, in the case of Lewis v. Prien, 98 Wis. 87, 73 N. W. 654, said:

"The unvarying rule to be followed in such cases is to start at the nearest known point on one side of the lost corner, on the line on which it was originally established; to then measure to the nearest known corner on the other side, on the same line; then, if the length of the line is in excess of that called for by the original survey, to divide it between the tracts connecting such two known points, of such tracts on such line as given in such in proportion to the lengths of the boundaries survey."

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

4. Homicide 231-Mental condition of accused at time of killing must be judged from attendant circumstances.

Where the mental condition of the accused at the time of his killing a person is in question, it must be judged from the attendant cir

cumstances.

5. Homicide 254-Evidence held sufficient to sustain conviction of murder in second degree.

In the prosecution for murder with plea of self-defense, evidence held sufficient to warrant a conviction of murder in the second de

gree.

sure ranging from 160 to 180 degrees, and that he had an enlarged heart. They said that any violent exercise or the effect of a blow from the fist of an ordinary man would cause him to fall down and would endanger his life.

The defendant was a witness for himself, and testified that he was very weak at the time he shot the deceased, and would not have shot him if he had not been attacked. He was a rural mail carrier, and on that account thought that he had a right to carry a pistol. He shot the deceased because he was advancing on him, and he considered his life in dan

6. Homicide 268-In homicide trial, wheth-ger from any kind of an attack by the deer the "Vinson" stated in indictment as deceased was the "Benson" proof showed to have been killed was for Jury.

Where the indictment for homicide charged the defendant with having killed one "Vinson," but the proof showed that he had killed one "Benson," whether Vinson and Benson were one and the same person was for jury.

7. Homicide 166(2)-Permitting evidence of quarrel between accused and third person on night prior to homicide, to show motive, held

not error.

Since much latitude is given to the introduction of testimony as to the motive of a homicide, permitting evidence of a quarrel between the accused and a third person on the night prior to the homicide was not error.

ceased. Other witnesses corroborated the testimony of the defendant to the effect that the deceased was advancing upon him at the time the defendant shot him.

[1-4] It is earnestly insisted that there is no testimony in the record tending to overcome the evidence of the defendant to the effect that he shot and killed the deceased in his own self-defense. It was the peculiar province of the jury to weigh the evidence and to believe the testimony that they believed to be true and to reject that which they believed to be false. The reason is that the jury trying a case hear and observe the conduct of the defendant and the witnesses in the case,

and are therefore better able to estimate the value of the testimony than this court which

Appeal from Circuit Court, Clay County; is necessarily confined to the words of the W. W. Bandy, Judge..

Johnnie Townsend was convicted of mur

witnesses as written down. Whether an offense is murder in the second degree or mander in the second degree, and he appeals. sence of malice which may be expressed or slaughter depends upon the presence or ab

Affirmed.

C. T. Bloodworth, of Poplar Bluff, Mo., for appellant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Atty. Gen., for the State.

implied. The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification, or excuse appear at the time of the killing. Inasmuch as no one can look into the mind of another, much latitude is allowed in the introduction of testimony on the question of motive, and the only way to decide upon the mental condition of the accused at the time of the killing is to judge it from the attendant circumstances. Dame v. State, 164 Ark. 430, 262 S. W. 313; and Stepp v. State, 170 Ark. 1061, 282 S. W. 684.

According to the testimony of Eric Benson, a brother of Lloyd Benson, he was present at the store when the killing occurred. At the time the defendant was standing on the porch leaning on the same scales, and the deceased was standing on the ground at the edge of porch. Lloyd said that Johnnie was trying to undermine him, and Johnnie denied this. Johnnie called Lloyd a damned liar,

HART, C. J. Johnnie Townsend was convicted before a jury of the crime of murder in the second degree, and his punishment was fixed at ten years in the state penitentiary. From the judgment of conviction, he has duly prosecuted an appeal to this court. The assignment of error upon which the defendant mainly relies for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. On December 30, 1926, Johnnie Townsend killed Lloyd Benson at Claude Irby's store in Boydsville in the Eastern district of Clay county, Ark., by shooting him with a pistol. Benson died a few minutes after Townsend shot him. The evidence of several physicians and Lloyd called him another one. Lloyd was introduced by the defendant to show that, at the time of the killing, the defendant was suffering with chronic appendicitis and with a dilated heart. The physicians said that the defendant had high blood pres

then scraped his shoes and started up on the porch where Johnnie was standing. As he started up on the porch, Lloyd saw Johnnie trying to pull his gun, and made a lunge towards him, and caught him by the shoulder.

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

(298 S. W.)

R. W. Wilson, of Pine Bluff, and A. J. Johnson, of Star City, for appellee.

MCHANEY, J. On January 1, 1924, T. W. Dean and wife were indebted to the Lincoln County Bank in a sum which they were unable to pay, and on that day executed and delivered to the bank a renewal note for $7,500 which was secured by a first mortgage on certain real estate, and a second mortgage on lot 14 in the north 1⁄2 of section 2, township 9 south, range 16 west. The mortgage bears date of January 1, 1924, but was not acknowledged until the 21st day of May, 1924, and was filed and recorded on the 22d day of May, 1924. In December, 1924, the indebted

the commission of crime. The evidence tended to show the state of mind of the defendant with regard to some one putting mules in his stable on the night before the killing. When the deceased approached him about the matter, the jury might have found that his condition of mind with regard to the putting the mules in his stable had angered him to such an extent that he was prompted to kill the deceased on this account. At least it was a circumstance, however trivial it may seem, tending to show motive on the part of the defendant in killing the deceased. However trivial and insignificant the incident may appear to us, the jury had a right to consider it along with the attendant circumstances in ascribing a motive to the defendant for kill-ness not having been paid at maturity, the ing the deceased. Therefore we hold that no prejudicial error was committed in the admission of this testimony.

We find no reversible error in the record, and the judgment will therefore be affirmed.

FREE v. TAYLOR, Bank Com'r.
(No. 184.)

Supreme Court of Arkansas. Sept. 26, 1927.
1. Mortgages 249 (3)-Where assignment of
mortgage is of record, assignor cannot satis-
fy without power of attorney from assignee.
Where the assignment of a note and mort-
gage has been noted by entry made on the
margin of the record, the assignor cannot enter
a notation satisfying a record as to the mortgage
without power of attorney, entered of record,
from the assignee.

Lincoln County Bank brought suit against the Deans to foreclose their mortgage, and, as to said lot 14, prayed that it be sold subject to the first lien of the Missouri State Life Insurance Company. The bank thereafter learned that appellant, T. H. Free, was claiming some interest in said lot 14, and it made him a party defendant in said action. Appellant's interest in the matter relates only to said lot 14, and originated in the following manner: On September 27, 1919, T. W. Dean and wife executed a deed of trust on said lot 14 and other lands to secure a note to H. D. Palmer in the sum of $10,000. Dean thereafter paid $4,000 of the debt owing to Palmer, leaving a balance due of $6,000, evidenced by three notes of $2,000 each, which, on March

20, 1920, he sold and indorsed to appellant, Free, a brother-in-law of Dean, together with the deed of trust securing said indebtedness, which had been recorded, but did not enter on the margin of the record of said deed of trust a notation of said assignment. This deed of trust constituted a first lien on five acres of land in lot 19, and a second lien on said lot 14, the Missouri State Life Insurance Company holding the first lien thereon. Dean

2. Mortgages 181-Where record showed assignor of mortgage as mortgagee, verbal authority to assignor to satisfy record held to estop assignee from asserting priority for assigned mortgage against subsequent mort-paid the interest on this $6,000 loan to Janugagee.

Where an assignment of a mortgage was not noted on the record, and the record still showed the assignor of the mortgage as the mortgagee, assignee's verbal authority to the assignor to satisfy the record held to estop the assignee from asserting his assigned mortgage as a lien prior to a subsequent recorded mortgage of a third party.

ary 1, 1922, and also borrowed $2,500 additional from Free in 1921, of which a portion was repaid in September of that year, but on January 1, 1922, he was indebted to Free in the total sum of $7,434.19, exclusive of interest. No other payments were made to Free by Dean thereafter, but on January 17, 1922, Dean and his wife executed a warranty deed to Free to the five-acre tract in lot 19, which

Appeal from Lincoln Chancery Court; H. recited a consideration of $6,000. Valuable R. Lucas, Chancellor.

improvements were located on this five-acre tract, including a gin house, on which insurSuit by the Lincoln County Bank against ance was carried in the sum of $1,000, $1,700 T. W. Dean and wife, wherein T. H. Free on the gin machinery located therein, $1,000 was made a party defendant. Walter Tayon engine and $400 on a seed house. This lor, Bank Commissioner, was later substitut- conveyance was made, according to appeled as plaintiff. Judgment for plaintiff, and lant, to enable him to secure insurance on the defendant T. H. Free appeals. Affirmed. improvements which had been canceled beBrockman & Reid, of Pine Bluff, for appel-cause of the mortgage, and that he held the title in his name as security for the loan, with

lant.

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