This court, in an early case, speaking of except as against third parties, it might well that statute, said: be argued that the state was not deemed to be a party within its meaning. But the language is quite different. It declares, uncon

on the mortgaged property from the time the same is filed in the recorder's office for record, and not before."

"This provision of law, we have no doubt, creates a lien in favor of the state, on all of the property of a person charged with a criminal offense, wheresoever it may be within the lim-ditionally, that the mortgage "shall be a lien its of the state, which attaches upon and binds it, not only in the hands of the accused, but also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the statute, until the accused is discharged from the prosecution, or such fines and costs as shall be adjudged against him are paid." Lawson v. Johnson, 5 Árk. 168.

When the two statutes involved in this case are read together, the one which declares that the property of an accused person shall be bound for the fine and costs from the time of his indictment or arrest, and the one

It is insisted by learned counsel for appel-which declares when a mortgage lien.shall lant that the lien which arises under the take effect, the conclusion is unavoidable statute from the time of the finding of the that the Legislature meant to give the state indictment or the arrest, whichever first a lien against an unrecorded mortgage. occurs, does not attach to after-acquired It does not follow that the state would property. But we think counsel are clearly have a lien as against equities of third parmistaken in their interpretation of the stat-ties not within the registration statutes; ute. The binding force of the statute be- but where the statute has, as in this case, gins at the time of the arrest or finding of unconditionally provided that there shall be the indictment, but it gathers within its no lien until the mortgage is recorded, it sweep all property owned by the accused from that time until the judgment subsequently rendered for fine and costs be paid. Similar language is used in the statute creating liens in favor of judgment creditors, the language being that a judgment shall be a lien "from the date of its rendition," and this court held in Real Estate Bank v. Watson & Hubbard, 13 Ark. 74, 82, that the lien attached to any property acquired subsequent to the rendition of the judgment. The main question is whether the state's lien attached as against the unrecorded mortgage.

It will be noted that, under the authorities cited above, a purchase-money mortgage must be simultaneous with the execution of the deed of conveyance, in order to take precedence over prior liens, for, if there is any intervening space of time during which the title rests in the purchaser, the prior liens attach to it in preference to the mortgage. Cohn v. Hoffman, 50 Ark. 108, 6 S. W. 511. [3] The registration statutes of this state provide that:

"Every mortgage, whether for real or per sonal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office for record, and not before." Kirby's Digest, § 5396.

This court has held that, notwithstanding the provision of the statute with reference to registration of mortgages, an unrecorded mortgage is valid between the parties and as against persons holding the property under voluntary conveyance. Main v. Alexander, 9 Ark. 112, 47 Am. Dec. 732; Leonhard v. Flood, 68 Ark. 162, 168, 56 S. W. 781. This is obviously so, because the registration statute is not intended to apply between the parties to a mortgage or to a grantee under a voluntary conveyance.

would be straining the language of the lawmakers to say that an unrecorded mortgage should be valid as against the state's statutory lien.

We are of the opinion, therefore, that the state's lien was superior, and that appellees acquired a superior title under their purchase at the execution sale.

The decree of the chancery court is therefore affirmed.

MIDLAND VALLEY R. CO. v. SCOVILLE. (No. 123.)

(Supreme Court of Arkansas. July 13, 1914.)

1. RAILROADS (§ 350*)-INJURIES TO PERSONS AT CROSSINGS-EVIDENCE-JURY QUESTION.

In a personal injury action by one run down by a train at a railroad crossing, the question of plaintiff's freedom from contributory negligence held, under the evidence, for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 2. RAILROADS (§ 350*)-INJURIES TO PERSONS AT CROSSING-DUTY TO LOOK AND LISTEN.

One approaching an unfrequented spur track of a railroad company, who stopped his team at a point less than 20 feet from the tracks and looked in both directions and listened, cannot, as a matter of law, be held guilty of contributory negligence because buildings

close to the track cut off his line of vision and
prevented him from seeing an approaching train.
Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]
[Ed. Note. For other cases, see Railroads,

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by James Scoville against the Midland Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

See, also, 158 S. W. 954.

This is the second appeal of this cause, a former judgment having been reversed be[4] But is it valid as against the state's cause of an erroneous instruction on the claim? We think not. If the statute, by measure of damages. Upon the remand of express language, made the mortgage good the cause appellee again recovered judgment, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

which is not now claimed to be excessive. [ such circumstances, the fact that the person Indeed, the present appeal questions only the sufficiency of the evidence to support the verdict of the jury.

injured did not use the proper degree of care so clearly appears that it leaves no inference or fact in doubt; and, where such evidence is undisputed, the question of contributory negli gence becomes a question of law for the court, and not of fact for the jury. As is said in the 78 Ark. 520 [94 S. W. 617], the traveler is case of St. L., I. M. & S. R. Co. v. Dillard, deemed to have seen or heard what is plainly to be seen or heard.' But, where the evidence is conflicting, the question as to whether or not the traveler at the public crossing did look and listen for an approaching train before reaching the crossing, and whether or not he did continue with vigilance and care until the point of danger was past, is ordinarily one of fact for the jury to determine. Unless the evidence is either uncontradicted or is indisputable to the

of a jury finding that the traveler did so look and listen should not be set aside as a matter of law. Where it is uncertain as to whether or not there was a possibility for the traveler to have been able to see or hear the approaching train, either because the evidence is conflicting or because there is doubt as to the inference to be drawn from the facts proved, the question of contributory negligence is properly one to be submitted to the jury. Under such circumstances, the question is left in doubt as to for the approach of a train, and it cannot be whether or not the party did look and listen said that it is conclusively shown that he did not do so when he testifies that he did. If there was an obstruction which obscured the view of the train within the line of the traveler's vision, then it cannot be conclusively inferred that he did not look, although by looking he did not see the train."

Under the evidence, the jury might have found that appellee was driving west on Parker avenue in the city of Ft. Smith, in a delivery wagon which was covered and had side curtains extending to the front, and that he was standing near the front of his wagon as he drove down the center of this street, and that, as he reached a point about 25 feet from the railroad track, he stopped his team and both looked and listened for an approaching train. The train which struck appellee approached from the south; but ap-effect that he did not look and listen, the verdict pellee says he did not see this train because a building 18 feet high stood on the corner of the lot adjoining the railroad track behind which the train approached, and that the building itself was only 3 or 4 feet from the track, and that a telephone pole also stood at the corner of the building, a few feet from it. Appellee and the witnesses who testified in his behalf stated that the train neither blew its whistle nor rang its bell, and the proof further shows that this was not the main track of the railroad, but was a spur track connecting with only one business house in that city, and that the track was used only a few times a week by the appellant company. From the appellee's evidence the jury might have found that he drove as near to the track as it was prudent to do, when he both looked and listened, and could neither see nor hear the approaching train, and that he started to drive across the track with his team in a trot, looking to the left and then to the right; that as he drove upon the track the train approached and struck the rear end of his wagon just before he had succeeded in crossing over. The evidence shows that the train which struck appellee was running at a speed not to exceed ten miles per hour, and was composed of two box cars, which were being pushed by the engine.

Edgar A. de Meules, of Muskogee, Okl., and Pryor & Miles, of Ft. Smith, for appellant. Kimpel & Daily, of Ft. Smith, for appellee.

SMITH, J. (after stating the facts as above). Many cases have discussed the duty of a traveler at a crossing to look and listen as he approached a railroad track, and, discussing this duty in the case of Arkansas Central Railway Co. v. Williams, 99 Ark. 167, 137 S. W. 829, this court said:

[1, 2] Here the circumstances were such that appellant could not see the approaching train, therefore, as he approached the track, he was under the greater duty to listen; but he had the right to cross the track, and, in so doing, he was only called upon to exercise ordinary care in looking and in listening for an approaching train. Here the appellee listened, but did not hear the approaching train, because it neither blew a whistle nor rang a bell, and he did not see the train because of the obstruction of the building and the telephone pole. Of course, as he approached nearer the track the angle of his vision widened, but we cannot say, as a matter of law, that he should have approached nearer the track before stopping than he did. He was himself within 25 feet of the track, and his team was of course nearer by its length to the track than he was. As he drove upon the track he was in duty bound to look in both directions; but this could be done only by looking in one direction and then in the other, and we cannot say, as a matter of law, that the jury might not have found that appellee decided in the emergency, when he discovered the approaching train, that the safe thing to do was to drive on

across.

At any rate, we think the evidence in this

"Where the undisputed evidence shows that the injured person had an opportunity to see and hear the approach of the train, at or before the time of the accident, and that his opportunity was such that he could not have fail-case presents a question of fact as to appellee ed to have seen or heard the train in time to have avoided the injury if he had used due care in looking and listening, then he will be deemed to have seen and heard the train, even though he should testify that he looked and listened and did not either hear or see the train. Under

being guilty of contributóry negligence, and the jury has found, under instructions which are conceded to be correct, that he was not, and the judgment of the court below is therefore affirmed.

county the sum of $15,000, which defendants PELTZER et al. v. GILBERT et al., County are threatening to expend in defraying the cost of bringing into this state numerous physi

(Supreme Court of Missouri. July 2, 1914. Re- cians and other persons to be used as withearing Denied July 14, 1914.)

2. INJUNCTION (§ 1*)-NATURE OF REMEDY-ices, in a former trial of said B. Clark Hyde RIGHT TO WRIT.

In Banc. Appeal from Circuit Court, Jack-State of Missouri versus Hyde. Of course it is son County; Allen C. Southern, Judge.

impossible for me to definitely state how much money will be required to try this case since that is altogether regulated by the length of time which the nurses and experts and other witnesses from outside the State remain in Kansas City. During the last trial one expert in pay-particular, Dr. Wesner, was in Kansas City for several weeks, and I am hoping that no such condition will arise this time. This would materially cut the expenses in this case. However, for expert testimony and the bringing of a large number of witnesses from all parts of the United States I estimate that $15,000 will cover the expenses of this trial. Of course I am not asking for any money to be placed in my handsonly the right to get these people to come here I want and to have them paid by the court. no funds of any character or description to be placed in my hands. I will say this to the court that I shall be as economical as possible in the trial of this case, and it will please me probably more than any one else if the expenses of this trial can be greatly reduced.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-17

to try this very important murder case, I beging the trial of the cause without being pleadto remain,

"Respectfully yours,

"[Signed] Floyd E. Jacobs."

"Order. "This cause now coming on for hearing, the court orders, by unanimous vote, that in compliance with the above communication from the county prosecuting attorney dated December 18, 1913, requesting this court to pay out of the general funds of Jackson county, Mo., the expenses (estimated by said prosecuting attor: ney at not to exceed $15,000) for the payment of expert witnesses and the expenses of bringing a large number of witnesses to Kansas City, Mo., from different locations in the United States for the trial of the case of State of Missouri v. B. Clark Hyde, said expenses be paid out of the general funds of the said county upon the presentation to the court of said bills approved by the prosecuting attorney."

ed at all. 16 Cyc. p. 148; Creamer v. Bivert, 214 Mo. 473, loc. cit. 485, 113 S. W. 1118; and Houtz v. Hellman, 228 Mo. 655, loc. cit. 671, 128 S. W. 1001.

We will now review the evidence which tends to prove the motives of the plaintiffs and their attorneys in prosecuting this suit:

In the trial of this cause it was shown that plaintiff Peltzer paid to Jackson county, through its collector, taxes aggregating $16.25 for and during the year 1912, and that plaintiff Bowling paid to said county 61 cents for the same year. Roland Hughes is the principal attorney for plaintiffs in the prosecution of this action. The firm of Johnson & Lucas and one Cleary were part of the attorneys employed by B. Clark Hyde to defend him against the beforementioned charge of murder.

The defendants by answer assert that the money which they intend to disburse out of the public funds of Jackson county is a necessary expenditure to procure the attendance of witnesses residing outside the state of Missouri; that said witnesses have made a chemical analysis of the stomach and other vital organs of one Thomas H. Swope, the person who it is charged was murdered by B. Clark Hyde; that the presence of such physicians and other nonresident witnesses is necessary to prove the charge which the public prosecutor has preferred against said Hyde; that the public prosecutor has no authority to compel the aforesaid nonresident witnesses to attend the trial of said B. Clark Hyde, and cannot procure their attend-up Johnson & Lucas's office? ance in any way except by paying them a reasonable sum for their time to be consumed and expenses to be incurred in attending said trial. For further answer defendants admit that plaintiff's are taxpayers of Jackson county, but assert that the amount of taxes which plaintiffs have paid and the amount which they might have to pay towards defraying the expenses complained of would not amount to more than three cents each, and that such amount is so trivial that the court ought not to take jurisdiction of the cause and grant the relief prayed for.

To prove that this suit was brought and maintained at the suggestion and expense of the attorneys of B. Clark Hyde, or for the benefit of said Hyde, the defendant introduced one James W. Broaddus, who testified as follows:

"My name is James W. Broaddus. I am an attorney; have been since last June. My office ly judge of the Court of Appeals in this disis with my grandfather, E. J. Broaddus, formertrict, at 1305 Commerce building. I know where Hughes & Whitsett's office is on the same floor with ours. Mr. Hughes uses our Bell phone once in awhile. Q. I will ask you whether or not Mr. Hughes came in there a few days ago and had a conversation in which he called A. Monday aft

All the evidence introduced by defendants quite clearly demonstrates that they are seeking to defeat this case by showing that plaintiffs are not prosecuting the action in good faith to prevent the unlawful disbursement of public funds, and that the chief purpose of the action is to impede or render impossible the successful prosecution of B. Clark Hyde. It is true that the asserted improper motives of plaintiffs, and the alleged fact that they did not come into court with clean hands, are not pleaded by defendants. It would have been more in harmony with the rules of good pleading for defendants to have specifically challenged the motives of plaintiffs in their answer filed herein, but the general rule seems to be that the improper motives or misconduct of a plaintiff which would prevent him from securing relief from a court of chancery may be shown dur

ernoon, the 12th of this month. Q. What was said, if anything? What was said in that conversation, the first thing that was said?

"Mr. Hughes: We object to that conversation as immaterial and irrelevant.

"The Presiding Judge: The objection will be sustained."

Here followed an argument between counsel and court as to the admissibility of this evidence. Whereupon the presiding judge said:

the fact that testimony along the same line was "This testimony will be admitted in view of let in without objection on your part at all, and it might be deemed in the way of impeachment of former testimony."

To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.

"Q. What was the first thing done by Mr. Hughes when he came into your office? A. This kind of embarrasses me, I didn't intend for this to happen. This is all I know about it. He came in there Monday and took the telephone and called up and said, 'Is this Johnson & Lucas's office? He said, 'I would like to speak to A. Mr. Judge Johnson.' Q. Who said that? Hughes. He said, "This is Roland Hughes, Roland Hughes talking.' Then he said, 'Peltzer informs me that there has been no arrangement made in regard to my fee in this matter,' and he said, 'I would like to know about it.' Of course, ordinarily, I don't pay any attention to those things but there has been so much of this in the newspapers that it just attracted my attention to that.

Mr. Hughes listened, and pretty soon said, 'All right,' and that is all I know about it. I told Mr. Hughes this morning that I had been subpoenaed. I wanted him to know

"Q. I want to call your attention to a certain conversation and ask you if it transpired a Ifew days ago, where you went in the office of Judge Broaddus, formerly Judge of the Court of Appeals in this district, and took their Bell phone and called up the office of Johnson & Lucas. A. I think I told you I did that. Q. I will ask you whether or not when you got that number you asked for Judge Johnson to come to the phone? A. I don't know. Q. Will you say whether you did or did not? A. No, I won't. Q. You won't say you did and you won't say you didn't? A. I won't say that I didn't, and I don't have any recollection now of asking that question. Q. I will ask you if you finally did get Judge Johnson on the phone. A. I told you I thought I talked with him over that phone. Q. I will ask you if you made a statement of this character to him: That you were getting skittish about your fee from Peltzer. A. No, sir; I never used any such word as that to Judge Johnson or anybody else. Q. I will ask you if you said anything over that telephone to him relative to your fee from Peltzer. A. I don't know. If I did, it was something like this: That no arrangement had been made with Mr. Peltzer about my fee. Q. Why