er. mission, made under the authority delegated to it, is subject to like review for the same cause.' These principles doubtless were in the mind of the chancery court when passing upon the facts on the issue as to whether or not the order of the Commission was so arbitrary and unreasonable as to render the same void. The court was correct in its conclusion. It cannot be said that the order of the Commission was "arbitrary and without any foundation in reason and justice." able as to cause it to be void for want of pow- | unsuccessful, and likewise an unsuccessful *The order of the Railroad Com- effort was made to have the Legislature pass a special act requiring the removal of the depot from its present location. On the other hand, there was testimony tending to show that the site where the station is now located and the site where it would be located under the order of the Commission were so nearly identical that either would make a good location; that the curve at the station of the Rock Island Railroad at Benton was greater than would be the curve at the station under the Commission's order; that a curve is objectionable if sharp, that is, if over 4 degrees; that while it is preferable always to have the stations located on a straight track, nevertheless appellant had quite a number of stations located on curves of 11⁄2 degrees. It was shown that the appellant owned sufficient land between the two tracks to make a straight track south for 500 or 600 feet; that it had room to straighten its tracks without getting off its right of way; that from the old station it had 522 feet of straight track; that it had plenty of room to carry the straight track 522 feet south of the new location. It was shown that the cost of erecting the depot building at the station ordered by the Commission and at the old station where the depot building had been burned would be approximately the same; and there was evidence tending to show that the convenience to the people of Benton as a whole would be far greater at the station ordered by the Commission than at the old station, and that the danger and difficulty in operating trains at the station as ordered by the Commission would be no greater than at the old location. Without going into further detail concerning the facts, it suffices to say that it was shown that a majority of the Commission visited the location, heard the testimony pro and con, and, after making a thorough investigation and giving the parties full opportunity to be heard, made the order now challenged by the appellant. Under the principles already announced by this court as to the power delegated by the Legislature to the Commission, we are of the opinion that the court was correct in holding that the order of the Commission, under the facts adduced, was not arbitrary and unreasonable. Appellant contends that the order was unreasonable because the testimony adduced by it showed that the location of the station under the order of the Commission was on a curve on the main line; that being on a curve there was difficulty in starting trains, in coupling the cars, and in seeing signals, all of which rendered the operation of trains far more difficult and dangerous than it would be on a straight track, like the one at the old station or place at which the appellant proposed to erect its new depot building. The undisputed testimony showed that the station under the order of the Commission would be located on a curve on the track of appellant's main line that was 12 degrees. There was much testimony on behalf of appellant tending to show that the difficulty, as well as the hazards, of operating the trains on this curve would be greatly increased; that if the station was located, according to the order of the Commission, on the branch line the engine would stand upon a 1 per cent. grade, which would make it very difficult to handle long, heavy trains, whereas at the old station there was a straight track on the main line, and the grade of the branch line was of sufficient distance to permit the proper handling of trains. The testimony also tended to show that if the appellant undertook to straighten the curvature at the station under the order of the Commission and to reduce the grade on the branch line so as to enable it to properly handle the trains, it would cost about $55,000. It was shown that a larger number of passenger trains passed through Benton than any other town in the state except Little Rock. This was because of the numerous passengers to Hot Springs. It was shown that an effort was once before made before the Railroad Commission for the removal of the depot from its present location, which was The decree, therefore, dismissing the appellant's complaint for want of equity, is in all things affirmed. tonville. Each of the appellees, the Benton DOKE v. BENTON COUNTY LUMBER CO. County Lumber Company, the Builders' Sup et al. (No. 100.) (Supreme Court of Arkansas. July 6, 1914.) 1. MECHANICS' LIENS (§ 5*)-NATURE AND EF FECT. ply Company, and C. O. Mitchell, filed complaints on May 31, 1911, in the chancery court of Benton county, and upon hearing the cases were consolidated. Liens of mechanics and materialmen are R. D. Massey began the construction of a creatures of statute, and must be perfected and hotel in the city of Bentonville, and died Noenforced in accordance with the statutory provi-vember 7, 1909, before the building was comsions. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 3, 5; Dec. Dig. § 5.*] 2. MECHANICS' LIENS (8 57*) "OWNER OR PROPRIETOR"-"AGENT OF HEIRS." An administrator is not the "owner or proprietor" of the real property belonging to the estate, nor the "agent of the heirs," within Kirby's Dig. § 4970, providing that in order to entitle a mechanic or materialman to a lien, the work or material must have been furnished under a contract with an owner or proprietor of the building or improvement or his agent, trustee, contractor, or subcontractor, and section 4976, providing for 10 days' previous notice to the owners or agent or either of them. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 64-71, 74; Dec. Dig. 8 57.*] 3. EXECUTORS AND ADMINISTRATORS (§ 272*) ASSETS LANDS AND TENEMENTS. Lands and tenements are only assets in the hands of an administrator for the payment of the debts of the intestate when the personal property of the estate is insufficient to pay debts. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1052-1057, 1059, 1065, 1068; Dec. Dig. § 272.*] pleted. At the time of his death the building was inclosed, the walls finished, the roof on, rough floors laid, partition walls set and lathed, some plastering done, some of the tile floor was laid, and the work was progressing in different places. The heating plant and also the plumbing was virtually complete, and window frames were in and some of the sash. W. J. Doke was appointed the administrator of deceased's estate, and upon application for authority to do so, the court ordered: "That W. J. Doke, administrator of the estate of R. D. Massey, deceased, be and he is hereby authorized and directed to carry out the for the benefit of said estate, and to complete construction contracts made by said deceased, said building and to use and expend the funds in his hands for the purpose, and in case the money in his hands is not sufficient to pay for said work, he is authorized and directed to borrow sufficient funds to complete the same and to pledge the assets of said estate for the payments thereof." The Benton County Lumber Company alleged that it delivered and sold to the administrator between the 1st day of December, 1909, and the 4th day of May, 1910, certain lumber and building material to be used in the con 4. MECHANICS' LIENS (§ 57*)-RIGHT TO LIEN -CONTRACT WITH ADMINISTRATOR. Where an administrator after his appoint-struction of a hotel building, for which a balment proceeded to complete a building started by his intestate for a hotel, persons furnishing labor and material under contract with the administrator could not fix a lien therefor. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. 88 64-71, 74; Dec. Dig. 8 57.*] 5. EXECUTORS AND ADMINISTRATORS (§ 129*)POWERS JURISDICTION OVER REAL PROPERTY-PROBATE COURT-JURISDICTION. Under Kirby's Dig. § 186, providing that lands and tenements shall be assets in the hands of every administrator for the payment of the intestate's debts, where the personal estate was sufficient to pay debts existing at the time of granting letters, the probate court had no jurisdiction to authorize the administrator to complete a hotel building belonging to the intestate and in process of construction at the time of his death. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 533-536; Dec. Dig. § 129.*] Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor. ance was claimed due on account of $1,227.25. The lien claim filed in the circuit clerk's office showed a like balance due for the materials furnished, and the affidavit thereto stated that all the building material sold to Massey in his lifetime had been paid for up to December 1st, and that the administrator was carrying out the contract of R. D. Massey to finish the hotel. Notice of the filing of the lien was given to W. J. Doke, administrator of the estate of R. D. Massey, and served upon him on the 26th day of May, 1910. On June 10, 1911, an amended complaint was filed, making the heirs of Massey parties defendant, in which it was alleged that the plaintiff had sold certain materials to Massey during his lifetime to be used in the construction of a hotel, "and that after his death it sold and delivered to Doke, administrator of the estate of Massey, building material to complete the hotel, which material was sold between the 1st of December, 1909, and the Suit by the Benton County Lumber Com- 4th of May, 1910, being the same material as pany and others against W. J. Doke, as adshown in the exhibit in the original comministrator of R. D. Massey, deceased. Judg-plaint." It further alleged the death of Masment for complainants other than C. O. Mitchell, and the administrator appeals. Reversed and remanded with directions to dismiss. sey and appointment of Doke as administrator, and that the personal property of the deceased "is not sufficient to pay the debts of This proceeding was begun to enforce liens the estate, and the real estate was needed to for materials furnished for the building of a pay such debts." Upon the filing of this comhotel on lots 123 and 124 in the city of Ben-plaint, a warning order was issued on June For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 10, 1911, against the heirs, made parties. On | concluded it best to complete the hotel. The July 15, 1911, the complaint was again amended to show that two of the heirs were insane persons, without guardians or curators, and others were minors without guardians. Certain of the heirs appeared specially on August 28, 1911, and moved to abate and dismiss the action against them, and on that day service was quashed as to these heirs, and on November 27, 1911, moved to strike out the amended complaint, claiming it set up a new cause of action. The allegation of the amended complaint that the administrator took charge of the real estate for the purpose of paying debts, and that there was not sufficient personal property to pay the debts, was made December 2, 1911. On January 13, 1913, the Massey heirs answered, admitting that defendants filed the lien set up in their complaint, but denied that it was properly verified, alleging that the affidavit was insufficient, and not in compliance with the statute, and that same was not filed within the time prescribed by the statute, and that suit was not commenced thereon against them until after the expiration of 15 months limited by law; denied that the personal property was not sufficient to pay the debts, and that the real property was needed for that purpose, and other allegations of the complaint. Benton County Lumber Company sold and delivered to the administrator the lumber for which it claims a lien for the amount set out in its account and complaint, charging it upon its books, "The Massey Building, by W. J. Doke, Administrator." No material was ordered by the administrator, but the dealings were had with Pace, who was superintendent of the construction of the building during Massey's lifetime upon the basis of daily wages, and was continued by the administrator after his death, upon the same terms. A contract for the tile floors with C. O. Mitchell was in writing, and made July 5, 1909, during Massey's lifetime. Mitchell stated that he furnished the material and did the work according to the contract. Part of it was done before Massey's death and the remainder afterwards. His account for the balance of $1,360.15 was presented and allowed February 18, 1910, by the administrator, and was presented, examined, and approved by the probate court and classified as a fourth class claim the 21st day of February, 1910. The Builders' Supply Company sold Pace materials amounting to $286.45. There was no contract except as to some of the items, the others being ordered as they were desired and charged as furnished. The suit of the Builders' Supply Company The administrator testified that he had was filed on the same day as that of the Ben-known Massey for 15 years during his lifeton County Lumber Company, with like allegations in its complaint; the materials being sold and delivered to the administrator between February 8, 1910, and May 6, 1910, and copy of the lien claim filed in the clerk's office was attached, and also itemized account for $279.60. The same notice of lien as in the other case was served on the administrator, and the complaint was amended as in the other case, and the warning order issued for the defendants. The same proceedings were bad as to the appointment of guardians and motions to strike. The suit of C. O. Mitchell was commenced on the same day as the other cases, and claims lien for work done and materials furnished for a balance due of $839.80. The lien claim filed in the clerk's office, made an exhibit to complaint, sets up that between November 1, 1909, and the 15th of June, 1910, at the instance of R. D. Massey, he performed labor and sold material for the construction of the hotel, as set out, itemizing it. He alleged the death of Massey and appointment of Doke as administrator, that he had carried out the contract of the deceased, and that he had given him 10 days' notice of his intention to file a lien. Subsequent proceedings were like those in the other two cases. The cases were consolidated upon hearing. It appears from the testimony that R. D. Massey had begun the construction of a hotel during his lifetime, which was complete to the third story; that his brother, Frank, after his death, was in Bentonville, and they time, and had talked with him about the building of the hotel before it was commenced. He said he would build a hotel if the citizens would procure the lot and did not expect any big return for his money. That some of his relatives, his brothers and sisters, had written him admonishing him against it, but he said it was his money and nobody's business as to whether he invested in property that did not bring high interest. That Frank Massey, about the 17th of November, told him that he had been appointed administrator of R. D. Massey in Missouri, and asked him to undertake the administration of the estate in Arkansas, which he agreed to do. Massey then suggested what lawyers he should have to advise him. Said further that it was the wish of the heirs that his brother's ideas be carried out as to the completion of the hotel. That after his appointment as administrator he proceeded to complete the building of the hotel, and employed Mr. Pace, who superintended the work before Massey's death, to look after it. That Pace practically retained the same force he had, and he instructed him to go ahead as he had been doing. The court decreed liens against the property for the amounts claimed, except in Mitchell's case, rendering judgment only for $40.60 therein, and from its decree the administrator and heirs appeal. Ira D. Oglesby, of Ft. Smith, for appellant. KIRBY, J. (after stating the facts as above). The original complaints of the Ben [5] The evidence is also virtually undisput ton County Lumber Company, the Builders' Supply Company and C. O. Mitchell were filed that the personal property of the estate ed May 31, 1911, and the affidavits filed in was sufficient to pay the debts thereof at the the clerk's office, claiming liens, stated that time of the administrator's appointment, and the materials furnished were sold to the ad- the order of the probate court was made atministrator after the death of the intestate. tempting to authorize him to complete the Notice of claim of lien by the Benton County building. Under these conditions, notice to Lumber Company was given to the adminis- the administrator and the lien claim filed, trator on the 26th day of May, 1910, and the showing the contract with him for the maaccount and lien claim was filed with the cir- terials furnished, could not fix a lien against cuit clerk on the 8th of June, 1910. No- the improvement, and the administrator was tice of claim of lien of the Builders' Supply without authority to contract and the proCompany was given the administrator on the bate court had no such power to authorize 6th day of May, 1910, and their account for him to complete the building or improvement the amount claimed due was filed with the and purchase materials therefor, for which circuit clerk of Benton county on the 27th the furnishers could claim liens upon the imof May, 1910. The notice was given the ad-provement. Kirby's Digest, § 186; Langston ministrator in the C. O. Mitchell case on the v. Canterbury, 173 Mo. 122, 73 S. W. 151; same day, and the lien claim filed with the Woerner on Administration, § 518; Walderclerk of the circuit court on the same day as meyer v. Loebig, 183 Mo. 363, 81 S. W. 904; in the Benton County Lumber Company case. Brackett v. Tillotson, 4 N. H. 208. [1] Liens of mechanics and materialmen for work done or materials furnished in the construction of an improvement are creatures of the statute, and must be perfected and enforced according to its provisions. The work must be done or the materials furnished “under or by virtue of a contract with the owner or proprietor of the building or improvement or his agent, trustee, contractor or subcontractor," and every person except the original contractor, who would avail himself of the benefit of the mechanic's lien act, is required to give 10 days' notice before the filing of the lien "to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due." A just and true account of the amount claimed, containing a description of the property to be charged with the lien, is required to be filed with the clerk of the circuit court of the county in which the improvement is situated, within 90 days after the work has been done or the materials furnished, and all actions to enforce the liens must be commenced within 15 months after the day of their filing with the circuit clerk. Kirby's Digest, §§ 4970, 4976, 4981-4984. [2-4] The administrator of an estate is not the owner or proprietor of the lands of the estate, nor the agent of the heirs within the meaning of the statute relating to mechanics' liens. Lands and tenements are only assets in the hands of an administrator for the payment of the debts of the intestate when the personal property of the estate is insufficient to pay the debts. The complaints and the lien claims filed with the circuit clerk in two of the cases show that the materials for the completion of the improvement were furnished to the administrator after the death of the intestate, and upon contracts made with the administrator and not upon contracts with the intestate. There was an attempt by amended complaint to allege a contract made with the deceased during his lifetime, but the claims for liens filed show that the materials were furnished to his administrator upon a contract with him after the intestate's death, and after the order of the probate court had been made, attempting to authorize him to complete the building. The heirs have the right to the real property of an estate unless and until it is necessary to apply it to the payment of the debts of the intestate, and it is not within the province of the administrator to construct or complete buildings at the expense of the real estate, for which mechanic's liens can be fixed and enforced against it. Neither is C. O. Mitchell entitled to a lien against the improvement. The court below found that he did not file his claim and account for a lien with the circuit clerk within 90 days after the work was done and the materials furnished under his contract therefor made with the intestate, and dismissed his complaint without prejudice as to the amount due thereon, and this judgment was not appealed from. It also found that he had contracted with the administrator for and delivered materials to him which were used in the construction of the building, amounting to $40.60, for which it adjudged him a lien against the improvement. These materials were furnished upon the contract made with the administrator, and a lien was attempted to be fixed against the improvement by filing a claim therefor with the circuit clerk after giving the 10 days' notice of his intention to do so. It falls within the rule already announced, and the court erred in its decree. None of the claimants were entitled to mechanic's or materialmen's liens against the improvement, and the court erred in not so holding. The decree is reversed, and the cause remanded, with directions to dismiss the complaints for want of equity. INTERNATIONAL LIFE INS. CO. v. 1. CORPORATIONS (§ 544*) Under Kirby's Dig. § 951, providing that every preference obtained or sought to be obtained by any creditor of an insolvent corporation, and any preference given or sought to be given by such corporation in contemplation of insolvency, shall be set aside, a preference, to be avoided, must have been given by the debtor when actually insolvent, and with an expectation of making an assignment or commencing proceedings in insolvency. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2162-2169; Dec. Dig. § 544.*] 2. CORPORATIONS (8 548*) INSOLVENCY "PREFERENCE" EVIDENCE. In a suit to set aside a deed of trust given by an insolvent bank to secure an existing debt due defendant and further advances, evidence held insufficient to show that defendant, at the time of the execution of the trust deed, knew of the bank's insolvency, and hence the conveyance was not a preference within Kirby's Dig. § 951. [Ed. Note.-For other cases, see Corporations, Cent. Dig, §§ 2182-2186; Dec. Dig. § 548.* For other definitions, see Words and Phrases, vol. 6, pp. 5498, 5499; vol. 8, p. 7759.] 3. CORPORATIONS (§ 542*) PREFERENCES. INSOLVENCY An insolvent corporation may mortgage or assign its property to secure advances or loans, where they are used in good faith for the payment of debts. OFFICERS Ac [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2154-2160; Dec. Dig. § 542.*] 4. CORPORATIONS (§ 432*) TIONS EVIDENCE. In a suit to set aside a conveyance by an insolvent bank on the ground that it was a preference, evidence held sufficient to show that the officers executing the conveyance were authorized to make conveyances. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.*] To supply the cash reserve with the necessary funds, the bank needed the additional amount which it sought to borrow from the appellant. Hurst, also fearing that the appellant would call for the amount of its certificates of deposit, was anxious to arrange with appellant to postpone demand for the amount of these certificates until the 1st of December, 1913. In order to induce the appellant to comply with this request of Hurst, he represented that the bank was perfectly solvent. The appellant sent representatives to Little Rock to look into the situation and to ascertain whether or not it would loan to Hurst the amount of money he desired and extend him the time for the payment of the certificates of deposit as he requested. After discussing the matter with Hurst and other parties and making such examination as they could, and after satisfying themselves as to the security offered, the representatives of appellant agreed with Hurst that appellant would let the Valley Savings Bank have $5,000 cash, the bank to execute its obligation for the sum of $14,000, the said sum representing the total amount of the certificates of deposit, with interest, and the cash to be advanced. Hurst agreed to execute a deed of trust upon certain real property situated in Little Rock, Argenta, and Hot Springs, which he claimed he owned in his individual right. The note for this $14,000 was executed on June 14th, and the deed of trust, conveying the property therein mentioned, was executed June 16, 1913. On the 20th day of June, 1913, one of the stockholders of the Valley Savings Bank instituted proceedings to have the bank declared insolvent and a receiver appointed to take charge of its assets, which was done. The receiver brought this suit against the appellant and others, alleging the insolvency of the Valley Savings Bank, and that the appellant knew of such insolvency at the time the Appeal from Pulaski Chancery Court; John conveyance sought to be set aside was exeE. Martineau, Chancellor. Suit by George Vaughan, as receiver, against the International Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded with directions. This suit was instituted by the appellee, as receiver of the Valley Savings Bank, against appellant and others to cancel certain conveyances which he alleged constituted an unlawful preference in favor of certain creditors of the defunct bank. The facts are substantially as follows: The Valley Savings Bank was engaged in the banking and real estate business in the city of Argenta. The International Life Insurance Company held certificates of deposit of the bank amounting to $9,000. In June, 1913, W. W. Hurst, the president of the bank, applied to appellant for a loan of $10,000. He stated that a customer of his bank, who had on deposit large sums, intended to withdraw about $12,000. cuted; that Hurst and Strickland, who were president and secretary, respectively, of the Valley Savings Bank, were also officers and directors of the appellant; that because of their interest in the appellant company they executed the deed of trust mentioned for the purpose of giving the appellant an unlawful preference over the other creditors of the defunct bank. The appellant denied the allegation as to the insolvency of the bank at the time the deed of trust was executed, and alleged that if it was insolvent appellant had no knowledge thereof. Denied that Hurst and Strickland were officers and directors in the appellant company. Denied that it confederated or conspired with Hurst and Strickland, or any of the others mentioned, to obtain any unlawful preference to the prejudice of other creditors of the bank. It denied that the sale and conveyance of the property mentioned in the deed of trust was executed for the purpose of obtaining any unlawful prefer *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |