Defendants further state that they are owners and are lawfully in the possession of said land, the southwest quarter of the northwest quarter of said section 4, under a deed from the said T. M. Robinson, a copy of which is hereto attached, and marked 'Exhibit A,' and made part of this answer. Defendants state that the plaintiff Albert S. Caldwell is, and was, and has ever since the sale of said lands under said deed of trust been, a nonresident of the state of Arkansas, and, at the time the said T. M. Robinson was ready and able to redeem said land within twelve months from the time of said sale, he was unable to make a personal tender to the said Caldwell, and was compelled to file his bill in chancery for the redemption of said land, making said tender in connection with said bill." Defendants then ask that Robinson be made a party to this suit, and that this cause be transferred to the chancery court, with a view of consolidating same with said chancery suit, which embraces the questions as are involved herein." A minute is made in term time, on the 20th September, 1899, to the effect that the defendants in the foregoing ejectment suit were permitted to file their answer on the 21st September, 1899, and also their motion to transfer to the chancery court. From this it may be assumed that the foregoing answer was filed on the 21st September, 1899; and on the 22d September, 1899, Robinson and Thweatt asked to be made parties defendant to this ejectment suit, which request was by the court granted. Thereupon the court ordered the case to be transferred to the Prairie chancery court, for the Southern District, to which ruling and judgment of the court the plaintiff at the time excepted. At the November term, 1900, the defendants in the ejectment suit transferred as aforesaid filed an amended answer, setting up irregularities in the foreclosure sale, and, among other things, that the appraisers never went upon the land to appraise the same. The plaintiff in ejectment moved to strike out said amendment to the answer, and this motion was sustained, and also to suppress the deposition of Charles Thompson, which had previously been taken; and this, also, was sustained. Exceptions were made and reserved. The court held, on the motion to strike out the amendment to the answer and to suppress the deposition, that the amendment raised issues totally inconsistent with the prayer to redeem, and the said deposition should be suppressed because it was not relevant to the issues raised in the bill to redeem and the answer thereto. Subsequently the plaintiffs, Robinson and Thweatt, asked leave to amend their original complaint by inserting therein substantially the amendment to the answer of Barrett and Yopp, theretofore stricken out, which was denied. The cause was then heard upon the pleading and evidence, and the court found 72 S.W.-63

that there was no equity in the bill, nor in the defense of Barrett and Yopp in the ejectment, and the defendants appealed to this court.

The case of Caldwell v. Barrett and Yopp involved purely law questions, and should not have been transferred to the equity court. It follows, of course, that the consolidation of the two cases in one was erroneous, as the two presented matters incongruous, besides being one purely cognizable in equity, and the other at law.

The motion by plaintiffs in the redemption suit to amend their complaint by inserting therein the subject-matter of the amendment to their answer in the ejectment suit, presented by the defendants therein, Barrett and Yopp, was properly overruled, because it had the effect of changing the cause of action, and also because same was not presented until the cause was ready for hearing; and for the same reason, as to them, the ruling of the court striking out the amendment to the answer of Barrett and Yopp was not erroneous, but as to Barrett and Yopp the ruling was erroneous, for the amendment contained a legitimate defense for them in the ejectment suit, if sustained by the proof.

The bill to redeem is dismissed for want of equity, but the judgment as to the ejectment suit is reversed, and the cause remanded for a new trial as between the original parties thereto, with directions to transfer that cause back to the Prairie circuit court, to be tried as it originally stood on that docket.

PARK v. PARK et al. (Supreme Court of Arkansas. March 7, 1903.) HOMESTEAD-CONVEYANCE-VALIDITY— NONJOINDER OF WIFE-STATUTES -CONSTRUCTION.

1. Sand. & H. Dig. § 3713, provides that no conveyance, mortgage, or other instrument affecting the homestead of any married man shall be valid, except for taxes, laborers' and mechanics' liens, and the purchase money, unless the wife joins therein. Held, that such section was not limited to invalidating specific liens on the homestead made without the wife's consent, but covered a conveyance of the homestead by the husband in which the wife did not join.

2. Where a husband conveyed the homestead by deed in which the wife did not join, reserving to the grantor the right of possession and rents and profits during his life, but making no reservation of the wife's interest therein, the deed was void under Sand. & H. Dig. § 3713, declaring that no conveyance affecting the homestead of a married woman should be valid unless the wife joined therein.

Appeal from Circuit Court, Johnson county; John N. Tillman, Judge.

Action by S. S. Park and others against Leonard Park. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

George Park was the owner of a tract of land in Johnson county containing 60 acres. upon which he resided with his wife, and

which was his homestead. On the 9th day of October, 1897, George Park executed and delivered a deed conveying this land to his son Leonard Park. The deed recites a consideration of $150, and is in the usual form, except a provision therein as follows, to wit: "The said party of the first part reserves the right of possession, and all rents and income of said land for and during his lifetime, together with all and singular the appurtenances to the said premises belonging." The wife of George Park did not join in the execution of this deed, nor acknowledge the same in any way. The wife of George Park died in February, 1900, and he died in July of same year. He remained in possession of the homestead until his death, after which Leonard Park, his grantee, took possession. Afterwards the other children and heirs of George Park brought this action to recover their interest in the land. The defendant, for answer, set up the deed. On the trial, the court held that the deed was void, and gave judgment in favor of plaintiffs. Defendant appealed.

J. E. Cravens, for appellant. J. H. Basham, for appellees.

RIDDICK, J. (after stating the facts). This is an action of ejectment, and the only question presented is whether the deed of George Park conveying to the defendant the land in controversy was a valid deed. Plaintiff claims that the deed was void by reason of a section of an act of 1887, which is as follows, to wit: "That no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers' and mechanics' liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same." Sand. & H. Dig. § 3713.

Defendant's first contention is that the purpose of this statute was to prevent the husband from mortgaging or otherwise incumbering the homestead with specific liens without the consent of the wife, and that it does not prevent him from making an absolute sale and conveyance of it by his sole deed. Counsel for defendant admits that this construction of the statute is in conflict with the decision of this court in the case of Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241, and it seems to us that it is also in conflict with the statute. We must judge the intention of the Legislature by the language used, and the words "no conveyance, mortgage or other

instrument" found in the statute, it seems to us, cover absolute deeds as well as mortgages. We are therefore compelled to overrule the contention of appellant on this point.

The next contention of the defendant is that, as the deed reserved the right of possession and of the rents and profits to the grantor during his life, it did not affect his

homestead, and for that reason it does not come within the scope of the statute and is not affected by it. Now, as we have before stated, the evident purpose of this statute was to protect the interests of the wife in the homestead by forbidding the husband either to sell or incumber it without her joining in the deed, but the construction which counsel for defendant seeks to put upon the statute, by his argument on this point, would permit the husband to convey the homestead subject to a life estate in himself, which, in the event that he died first, might deprive the wife of the homestead against her will. It is clear, we think, that the husband cannot make any conveyance of his homestead affecting the interest of his wife therein, without her consent, other than those named in the statute.

Counsel for the defendant has referred us to the case of Ferguson v. Mason, CO Wis. 377, 19 N. W. 420, as supporting his contention. In that case the court, under a statute similar to ours, held that the deed of the husband conveying the land upon which the homestead was situated was valid, even though the wife did not join in it, where there was an express reservation of the homestead rights of both the husband and wife, the deed in that case by its terms conveying only the reversion after the homestead rights of both husband and wife had terminated by death. We need not undertake to decide what the effect of such a deed would be under our statute, for that case is very different from the one we have here. The homestead interests of the wife were reserved by that deed, but the deed in this case did not reserve them. We think, therefore, that this deed came within the statute, and, as the wife did not join in its execution, we are of the opinion that the circuit judge correctly ruled that it was void. Pipkins v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241. Judgment affirmed.

MINOR

ROWLAND v. WADLY et al. (Supreme Court of Arkansas. March 7, 1903.) HOMESTEAD RIGHTS OF WIDOW CHILDREN-ADVERSE POSSESSION-CONTINUITY-TAX SALE-REDEMPTION. 1. Act Jan. 2, 1851 (Laws 1850-51, p. 71), providing that, where the whole of a decedent's estate did not exceed in value $300, the same should be allowed to the widow, was repealed by Act Dec. 8, 1852 (Laws 1852, p. 9), comfar, at least, as regarded the homestead rights monly known as the "Homestead Act." in so of the minor children conferred by the latter

act.

2. To acquire title to land by adverse possession under the seven-years statute of limitations, the possession for the seven years must be continuous and unbroken.

3. A widow having minor children permitted her homestead to be forfeited for nonpayment of taxes, procuring a third person to buy it in

2. See Adverse Possession, vol. 1, Cent. Dig. § 227.

at the sale, and afterwards reimbursing him for his outlay, and having him assign his certificates of purchase to one who had already or who immediately afterwards purchased the land from her. Held to be a mere scheme to get rid of the interest of the minor children in the homestead, and to amount to a mere redemption from the tax sale by the widow.

Appeal from Green Chancery Court; Edward D. Robertson, Chancellor.

Action by S. W. Rowland against William Wadly and others. Decree for defendants, and plaintiff appeals. Reversed.

J. D. Block and F. H. Sullivan, for appellant. Luna & Johnson, for appellees.

BUNN, C. J. This is a suit by appellant against appellees to recover the W. 1⁄2 of the S. W. 4 of section 8, in township 16 north, of range 6 east. The appellant deraigned title through an entry from the state by Thomas Tolbert, and alleged that Tolbert died intestate and in possession of the lands, owning the fee, and that his heirs at law, after his death, conveyed the lands to the plaintiff. In his answer, defendant Scott denied that plaintiff was the owner of the land, and alleged that he himself was in possession of a portion of it. The answer of Wadly and wife, Exor Wadly, denied that the plaintiff was owner of the land, and denied that he was entitled to the possession; and they further state that Thomas Tolbert entered the lands, and that when he died he left surviving him a widow and some minor children, and that at the time of his death he occupied the land as his homestead, and that his entire estate did not exceed the value of $300, and therefore it vested in his widow, who conveyed the land in controversy afterwards to John Roberts, and he to William T. Roberts, from whom the defendant Exor Wadly inherited the premises. The answer also alleged that the land was sold on the 22d day of November, 1869, for the nonpayment of the taxes of 1868, and one C. H. Bornhill became the purchaser at such sale, and received his certificate, and assigned the same to John Roberts, to whom the county clerk conveyed by his tax deed of the 29th of October, 1872, and he conveyed to William T. Roberts, from whom said appellee Exor Wadly inherited as aforesaid. The seven-years statute of limitation was also pleaded, and it was alleged that the action was not begun (May 30, 1896) within three years from and after the heirs of Thomas Tolbert, under whom the plaintiff claims, attained their majority. The statute of two years in favor of the tax title was also pleaded, and it was alleged that the lands had not been redeemed from the tax sale within two years after the minor heirs of Tolbert had attained their majority; and two years' possession by defendants after said heirs had attained their majority. Defendants also claimed to have made improvements to the value of $371, and $300 taxes paid, and asked that this be set off against

any damage that might be assessed against them in the suit, which was tried in equity. This cause was tried on November 16, 1899, and final decree rendered in favor of defendants, and the plaintiff appealed.

There are two questions in this case. The first is whether or not the act of January 2, 1851 (Laws 1850-51, p. 71), providing that, where the whole estate of a deceased person did not exceed in value the sum of $300, the same should be allowed to the widow, was repealed by the subsequent act of December 8, 1852 (Laws 1852, p. 9), commonly known as the "Homestead Act," in so far, at least, as regards the homestead rights of the minor children, conferred by the latter act.

In Johnston v. Turner, 29 Ark. 280, it was held that, under the homestead act, the homestead estate is created equally for the benefit of the wife and minor children, and none of them can do an act that will impair or prejudice the rights of the others. This act was subsequent to the allowance act of 1851, under which the widow claimed the fee in the case at bar; and as the court, in this case cited and in many subsequent cases, construed the homestead act as giving the minor children rights inconsistent with the act of 1851, where a homestead is involved it follows that in so far the homestead act of 1852 repealed by implication the allowance act of 1851, and the widow's allotment of the estate, when worth less than $300, could not affect the rights of the minor children in the homestead, if included in such allowance to her, as in this case; nor could the sale of her right in the homestead affect the right of the minor children in the leastin fact, would be void. See, also, Chambers v. Sallie, Admr., et al., 29 Ark. 407; Trotter v. Trotter et al., 31 Ark. 145, where it was again held that there could be no division of the homestead by any act of any of the parties having rights therein; and many other cases wherein the act of 1852 was under consideration.

In Kirksey et al. v. Cole (Ark.) 1 S. W. 778, wherein all the cases are collated, it is said that the design of the act of 1852 was to continue the homestead entire, as the home of the minor children, and that no right of the children should become operative to sever or divert such homestead from full occupancy and enjoyment as a home during the minority of any of the children; and in all the cases on the subject the minor children are held to be incapable of waiving any right they may have.

It follows that the defendant's ancestor, William J. Roberts, took nothing by his purchase from John Roberts, whose claim rested upon the widow's conveyance of her allowance right, as the widow of the common ancestor and original enterer.

The second question is whether or not the appellee held continuous, notorious, and adverse possession against the appellant for the statutory period. It appears that the

widow had left the premises when she sold to John Roberts, and he never took possession, but at once sold to William T. Roberts, who took possession, resided on the land about one year, cultivating a small portion of the same, and then moved off of it for his health, and something more than a year afterwards. died, so that his possession, at farthest, only covered a period of three or three and a half years. There does not appear any bona fide possession by any one, except in a mere spasmodic way, for a period of about twelve years, when the appellees took possession, they having paid the taxes during the time-about six years next before the institution of this suit-and made improvements. The statute of seven years commenced to run, if at all, when the widow sold to John Roberts, and his grantee, William T. Roberts, took possession. We cannot find that unbroken possession extended over a period of seven years in favor of appellees, but that they did have adverse and continuous possession for a shorter period extending up to the time of the institution of this suit.

The statute of two years in favor of tax titles did not apply. The widow was a joint tenant as to the homestead with the minor children, and under the proof and her own admissions she undertook to deprive these children of their interests in the homestead by suffering it to be forfeited for the nonpayment of the taxes, procuring one Bornhill to become the purchaser at the sale, and afterwards reimbursing him for the outlay, and having him assign his certificates of purchase to John Roberts, who had already or immediately afterwards purchased the land from her-that is, her right to the same by said allotment. This was a scheme or device to get rid of the interest of the minor children in the homestead, and amounted to nothing more than a redemption from the tax sale by the widow.

For the reasons above given, the decree is reversed, and cause remanded to be tried not inconsistently with this opinion.

MILLER v. STATE.

(Court of Criminal Appeals of Texas. March 25, 1903.)

RAPE-AGE OF

FEMALE-WITNESSES-CROSS

EXAMINATION-CONTRADICTION
-ACCOMPLICES.

1. Where, in a prosecution for rape of a female under 15 years of age, prosecutrix testified that she was 14 years of age at the time of the alleged intercourse with defendant, it was error for the court to refuse to permit defendant to ask her on cross-examination, for the purpose of impeachment, whether on dates specified, about the time of the alleged offense, she had not stated to other persons named that she was 16 years of age.

2. In a prosecution for rape, evidence that prosecutrix agreed with defendant not to disclose the facts constituting the offense, in order to shield defendant from prosecution, was insufficient to make her an accomplice.

Appeal from District Court, Coleman County; Jno. W. Goodwin, Judge.

H. B. Miller was convicted of rape, and he appeals. Reversed.

F. L. Snodgrass, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of rape upon a female under the age of 15 years, and his punishment assessed at confinement in the penitentiary for a term of 7 years.

Bill No. 3 complains that while prosecutrix, Minnie Jesse, was on the stand, and after she had testified that she was born May 26, 1886, and that she was 15 years old on May 26, 1901, and that she was 14 years of age at the time of the alleged act of intercourse, appellant, on cross-examination, asked the following question: "Did you see Bob Carson about the 22d of July, 1901, out in the prairie, 150 or 200 yards from your father's house, and tell him at that time that you were sixteen years old?" The state objected to this testimony. The defendant propounded the question for the purpose of impeaching the witness, and expected said witness to answer that she did not make any such statement, and expected to prove by Carson that she did tell him at said time and place that she was 16 years old. By the fourth bill it is made to appear that appellant, on cross-examination, asked prosecutrix, Minnie Jesse, if she did not tell Henry Hedgecoke in June, 1901, that she was 16 years of age. Subsequent bills show both of said witnesses were offered to prove that prosecutrix had stated such fact to them. This testimony was excluded by the court, and, as stated, appellant was deprived of the privilege of asking prosecutrix, on cross-examination, if she had not made such statements. The fact that prosecutrix was under 15 years of age, and could not consent to rape, does not prevent the cross-examination by appellant as to her age. Clearly, if she made a statement to other parties, out of court, utterly at variance with her testimony upon the trial, it is proper and legitimate, on cross-examination or by impeachment, to show said contradictory statements. When prosecutrix is permitted to testify, this presupposes, in legal contemplation, her competency as a witness. This being conceded, and the state insisting that she is competent to testify, it is proper for defendant to show that her statements in reference to her age are unreliable. If she has told various parties that she is over the age of consent, this testimony should be admitted, as going to the credibility of her testimony. Therefore the court erred in excluding the same.

Appellant insists that prosecutrix is an accomplice, and that the court erred in failing to charge on the law of accomplices. As to this matter, prosecutrix testified. "I remember when the grand jury was in session in September, 1901. While the grand jury was

in session, I made an agreement with defendant not to tell what I knew. Yes, sir; the grand jury adjourned before I told what I knew about it. Yes, sir; the object of us making that agreement was to prevent a prosecution. Defendant did not want me to tell it. I understood that the purpose of the agreement was to keep defendant from being indicted and prosecuted. Yes, sir; I made the agreement for that purpose. At the time I made the agreement I was over fifteen years old. I made the agreement with defendant during September, and I was fifteen the 26th of the preceding May." Even conceding that prosecutrix could be made an accomplice upon a proper showing, the evidence before us does not make her such. "One is not an accessory who merely neglects to make known to the authorities that a felony has been committed, or forbears to arrest the felon, or agrees not to prosecute him. Keeping a witness, by persuasion or intimidation, from appearing against a felon on his trial does not render one the felon's accessory." Bishop, New Cr. Law, vol. 1, § 694. Nor does the fact that one agrees, for money, not to give evidence against a felon, or knows of the felony and does not disclose it, make said party an accessory after the fact. There must be some independent criminality to make them an accomplice. Wharton, Cr. Law, vol. 1, § 242. For a further discussion of this matter, see Chitister v. State, 33 Tex. Cr. R. 635, 28 S. W. 683; Caylor v. State (Tex. Cr. App.) 68 S. W. 982; Prewett v. State (Tex. Cr. App.) 53 S. W. 879; Grimsinger v. State (Tex. Cr. App.) 69 S. W. 583; Martin v. State (Tex. Cr. App.) 70 S. W. 973. Appellant also insists that the court erred in failing to charge on alibi. The writer does not think the issue of alibi was presented by the evidence, but, in the opinion of the majority of the court, such a charge was required. We do not deem it necessary to pass on appellant's various other assignments of

1. Where defendant killed deceased in a quarrel in which deceased was the aggressor, and there was no evidence that defendant feared deceased would prosecute him for violating the local option law, evidence that some two weeks prior to the killing defendant asked deceased to remain quiet, as the grand jury was about to meet, and deceased replied that he would not swear to a lie for any one, and that just prior to the killing deceased obtained whisky at defendant's place, together with the minutes of the county commissioners' court establishing local option in the county where defendant kept a saloon, was not admissible to show a motive for the crime.

2. In a prosecution for homicide, evidence that defendant, prior to the killing, and before prosecutions against him for violating the liquor law were to be tried, told witness that he would rather have a murder case against him than a prosecution in that county for illegally selling liquors, was inadmissible.

Appeal from District Court, Eastland County; N. R. Lindsey, Judge.

John Walker was convicted of murder, and he appeals. Reversed.

D. G. Hunt, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Conviction of murder in the second degree, penalty assessed being confinement in the penitentiary for a term of 15 years.

She

The state was permitted to prove by the widow of deceased, Mrs. Kliner, that, about two weeks before her husband was killed, appellant sold him some bottled beer. further testified in this connection: "We drive up in front of his hop joint, and I stayed in the buggy, while he got out, went into the house, and directly he and Walker returned to the buggy. Walker handed Will the beer, and said: 'Will, you must lie low now. The grand jury meets soon.' My husband remarked, 'I won't swear a lie for nobody.' Defendant then dropped his head. looked down, turned around, and went back into the house." She further testified: "On Saturday, before my husband was killed, my husband and myself drove up in front of Walker's place of business and stopped. My husband got out, went into the house, and shortly afterwards he and defendant returned to the buggy, and defendant handed my husband a pint of whisky, which my husband paid defendant for." Numerous objections were urged to the introduction of this testimony-among others, that these acts constituted other offenses and collateral transactions which tended to shed no light upon the question at issue, and were prejudicial. The court qualifies this bill by stating "that the evidence was offered for the purpose of showing a motive on the part of defendant to kill Kliner, and the jury were told that they could not consider it for any other purpose." The state was further permitted to introduce in evidence the minutes of the county commissioners' court, showing the putting into effect of local option in Eastland county. This was also objected to for various reasons. The court explains this bill by stating "that the evidence was offered in connection with the evidence of Mrs. Kliner as to defendant's statement to deceased that he must lie low, as the grand jury would meet soon, and the jury was informed at the time that they could only consider the fact of local option being in force in Eastland county for the purpose of showing a motive on the part of defendant to kill deceased, and that they would consider it for no other purpose." This testimony was clearly inadmissible. The hom