cious conduct on the part of the plaintiff. There is evidence in the record, however, to show that she kept company with Randall during her husband's absence.

[4] Adultery may be proved by circumstances. The circumstances however, must be such as "to lead the guarded discretion of a reasonable and just man to the conclusion of guilt." The conduct of the plaintiff, when considered in connection with the letter written by her to Stecher, gives character to her relations with him, and after a careful reading and consideration of the whole record we cannot say that the finding of the chancellor that the plaintiff was guilty of adultery is not sustained by a preponderance of the evi

dence. Therefore the decree of the chancellor, granting the defendant a divorce, must 'be affirmed.

[5] The court awarded the custody of Leland Lockhart, Jr., to the husband, and made no provision for the wife to visit him. The record shows that she loved her little son, and had always treated him kindly and affectionately. It was error for the chancellor not to give her the right to visit her son on all proper occasions, and for that error the decree in this respect will be reversed, with di

rections to the chancellor to provide for visitation by the wife to their little son on all

proper occasions.

In other respects the decree will be affirmed.

AUSTIN v. AUSTIN. (No. 306.) (Supreme Court of Arkansas. April 5, 1920.) 1. Divorce 286-Failure to give bond not affecting right of intervener appellant not re... viewable.

Where only the intervener in divorce proceedings, who claimed the property ordered to

be sold for division, under Kirby's Dig. § 2684, appealed from the decree, failure of plaintiff to give the bond for restoration of the property as required by the statute cannot be reviewed, where it does not affect the rights of appel'lant.

2. Divorce

201-Filing of complaint gives

jurisdiction to divide property.

The filing of the complaint for divorce gives the court jurisdiction to divide the real property owned by the husband under the terms of Kirby's Dig. § 2684, and court will order sale, where there could be no division, without personal service on defendant.

3. Divorce

201-Jurisdiction to declare lien on land claimed by intervener is acquired by intervention.

Even if the filing of a divorce complaint gave the court no jurisdiction to declare a lien on the husband's land for the wife's share of personal property fraudulently removed by him,

it acquired such jurisdiction, as against a purchaser from the husband pending the suit, by the purchaser's intervention.

4. Divorce 256-Court has equity power to give wife lien on land for personal property fraudulently removed.

Though Kirby's Dig. § 2684, authorizing court in divorce proceedings to set apart an interest in the real and personal property of the husband to wife, does not empower it to declare a lien on the real property or the perhusband, a court of equity has power to declare sonal property fraudulently removed by the such lien under its general powers to grant relief from fraud.

MCCULLOCH, C. J. Appellee, Ella Austin, and her husband, Oscar Austin, resided together in Benton county, Ark., until February 23, 1917, when there was a separation. They have one child, the issue of their intermarriage. Oscar Austin owned a quarter section of land which is the subject of the controversy on this appeal, and in addition to household effects he owned personal property, consisting mostly of live stock, of the value of $1.200. On March 7, 1917, appellee filed the original complaint in the present action against her husband for divorce, and for allotment of her share of the property which she was entitled to under the statute, providing that, in a final judgment for divorce granted the wife against the husband,

she

"shall be entitled to one-third of the husband's personal property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled; and when it appears from the evidence in the case, to the satisfaction of the court, that such real estate is not susceptible of the division herein provided for without great prejudice to the par

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(220 S.W.)

ties interested, the court shall order a sale of [that a suit for division of property under said real estate to be made by a commissioner," the statute in divorce proceedings was a etc. Kirby's Digest, § 2684.

proceeding in rem, and that the filing of a Process was issued for personal service, complaint gave the court jurisdiction to dibut the service thereof was evaded by the vide the property in accordance with the defendant, Oscar Austin, who left the state terms of the statute, or to order a sale where after the commencement of the action and there could be no division. The point is not carried away his aforementioned personal properly before us to decide whether or not property, except household goods. Subsethe court, in the absence of personal service quently appellee filed proper affidavit for of process or a sequestration of the property warning order, which was published as reunder process of the court, acquires jurisdicquired by law. During the pendency of the tion in a divorce proceeding to declare a lien action, appellant, Fannie Austin, who is the on the surplus proceeds arising from the sale mother of Oscar Austin, intervened in the of real estate in order to award to the wife action, claiming that she was the owner of her share of the real estate. If it be concedthe land in controversy by purchase from ed that jurisdiction was not acquired by the defendant. Oscar Austin did not appear merely filing the complaint, still it was acquired on the intervention and cross-com

in the action.

raised an issue between appellee and appellant with respect to this property, and the proceeds thereof, and the prosecution of an appeal by the intervener alone raises only such questions as affect her rights or interest in the property.

The cause was heard by the court, and a plaint of appellant, who asserted title to the decree for divorce was granted in appellee's property under purchase from the defendant favor, and the decree was also in favor of during the pendency of the litigation. This appellee for the custody of the child and for division of the property in accordance with the statute quoted above. The court found in the first place that the land was not susceptible of division and ordered a sale by commissioner for the purpose of dividing the proceeds in accordance with the terms of the statute. The court also found that the defendant had left the state for the purpose of evading process in this action, and that he carried away the personal property for the purpose of preventing appellee from obtaining a decree in this action for her share of the property, and that the sale and conveyance of the land in controversy by the defendant to appellant was done for the fraudulent purpose of cheating and defrauding appellee out of her rights under the statute, and that appellant participated in the fraud. The court, therefore, ascertained the value of the personal property and declared a lien in appellee's favor for the value of her share thereof on the remaining interest in the real estate or the proceeds thereof.

[1] The testimony in the case is not abstracted, and it is conceded that it was sufficient to support the findings of the court. The intervener, Fannie Austin, has appealed, but the defendant has not appealed, and does not appear in this court. The appeal raises, therefore, only such questions as affect the rights of the appellant. The failure of appellee to give bond for restoration of the property, as required by statute, is not open to review on this appeal, as it does not affect the rights of appellant.

[4] There is, however, a very serious question raised as to whether or not the court had jurisdiction under any circumstances to decree the wife a lien on her husband's real estate for the value of her share in the personal property of which she had been deprived by the wrongful act of the husband. The statute under which the proceedings are had clearly and unmistakably provides for an allotment of specific property, and not a decree for the value. It is plain, therefore, that the statute itself does not declare a remedy for property which is not available for division at the time of the decree. The statute does, however, declare the rights of the wife in the property, and, if a remedy exists at all, it must be found under general principles whereby equity affords a remedy for a wrongful deprivation of existing rights.

We have reached the conclusion that, under the ordinary powers of a court of equity, such remedy exists. The statute itself does, as before stated, provide the rights of a wife, who is entitled to and is given a decree for divorce. It provides that the wife "shall be entitled to one-third of the husband's personal property absolutely." Fraudulent conduct of the husband in carrying the property out of the jurisdiction of the court during [2, 3] It is contended, however, that the the pendency of the action brings the case court was without jurisdiction to decree a within the ordinary powers of a court of lien on the land in favor of appellee for the equity to grant relief from fraud. It does value of her interest in the personal prop-not constitute the creation of a new remedy, erty, for the reason that there was neither but merely a new application of the wellpersonal service of process on the defendant established remedy afforded under the pecunor sequestration of the property by attach- liar powers of a court of equity. The finding ment or otherwise. We held in the case of by the court that the property was taken Allen v. Allen, 126 Ark. 164, 189 S. W. 841, away from the jurisdiction of the court with

the fraudulent intention of depriving appellee of her share thereof, and the finding that the defendant conveyed the real estate to appellant for the fraudulent purpose of defeating the rights of appellee, called for an application of the principle upon which this remedy is founded.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant. Cockrill & Armistead, of Little Rock, for appellee.

SMITH, J. On November 1, 1917, appellant and appellee entered into a contract, the parts of which material to the issues now before the court are as follows:

[5] The court also decreed to appellee the recovery of the sum of $150 as her attorney's fee. The reasonableness of the amount of "This contract between National Railways the fee allowed is not disputed, and we are Advertising Company (hereinafter called the of the opinion that it was not improper to company) and E. L. Bruce Company (hereinmake the allowance as a lien on the real after called the advertiser) witnesseth that the estate which the defendant had conveyed to advertiser hereby authorizes and directs the appellant in fraud of the rights of appellee. National Railways Advertising Company to This does not result in any way from the place his advertisement of flooring and other lumber merchandise (size of card 16x24 inchstatute quoted above, but upon general prin-es) in one-fourth cars of the Northwestern 'L' ciples of equitable relief against fraudulent South Side 'L' for twelve months from Novemconveyances. ber 15, 1917, for which the advertiser agrees Affirmed. to pay the sum of one hundred seventy-four and 24/100 dollars ($174.24) per month, payable at the end of each month, during the term of this contract. With privilege of cancellation at end of sixty days from beginning of in

NATIONAL RYS. ADVERTISING CO. v. E. stallation of cards, at monthly payment basis."

L. BRUCE CO. (No. 314.)

(Supreme Court of Arkansas. April 5, 1920.)

1. Evidence 450(5), 457-Parol evidence admissible to explain ambiguous written con

tract.

The words "at monthly payment basis," in

an advertising contract for 12 months at a certain amount per month, advertiser having "privilege of canceling at end of sixty days from beginning of installation of cards, at monthly payment basis," were ambiguous, and parol evidence was admissible to explain their meaning.

2. Alteration of instruments

2-Unauthorized words added to advertising contract material alteration.

Adding without authority the words "at monthly payment basis" to an advertising contract, under which the advertiser had the "privilege of cancellation at end of sixty days from beginning of installation of cards, at monthly payment basis," was a material alteration, where it was shown that it was the custom and practice to have a short time rate which was higher than the pro rata or long time rate.

3. Alteration of instruments 18-Material alteration of contract absolves other party from obligations.

A material unauthorized alteration of an advertising contract by an advertising company after execution absolved the advertiser from any obligation under it.

The court below held that these four words were written into the contract by the company's agent after its signing, and that they were material and vitiated the instrument. The correctness of this holding presents the controlling question in the case.

It is the insistence of the company that the addition of the words, "at monthly payment basis," if they were added after the execution of the contract, could make no change in the legal operation of the instrument, and that the only time when the advertiser could exercise the privilege of cancellation was at the end of 60 days from the date of the installation of the cards, and at that time the advertiser would owe for two months' service, and would have to pay for these two months whether the words, "at monthly payment basis," were inserted or not, and that the sum to be paid was not controlled by those words. We adopt the ferring to the parties. designation employed in the contract in re

It appears that the contract was executed on one of the company's printed forms; but the provision in regard to its cancellation

Appeal from Circuit Court, Pulaski Coun- was written with pen and ink. This writing ty; Guy Fulk, Judge.

Action by the National Railways Advertising Company against the E. L. Bruce Company. Judgment for defendant, and plaintiff appeals. Affirmed.

provided, not only the length of time notice of cancellation should be given, but what the terms of payment should be, if that right were exercised. The stipulation that the payment, in the event of cancellation, should be made at the monthly payment basis, seems

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(220 S.W.)

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Where staves were sold to a purchaser with notice, for the purpose of defrauding a creditor, the creditor was entitled, not only to have the staves subjected to the payment of its debts, but to require the purchaser to refund the price of staves which he had resold.

5. Fraudulent conveyances 246-Custody of receiver a sufficient sequestration, if any is necessary.

Where, in a suit to foreclose a mortgage, a receiver was appointed to take charge of staves in a mill yard, and a purchaser of the staves intervened, whereupon plaintiff filed a cross-complaint against the intervener to set aside the sale as fraudulent, the court's custody of the staves through its receiver constituted a sequestration, if any was necessary. 6. Fraudulent conveyances 246-Sequestration unnecessary where personal service is

part had been shipped out of the county and was involved in another suit between the parties.

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

Suit by the Arkadelphia Milling Company against T. J. Smith. From a judgment for plaintiff, defendant appeals. Affirmed.

J. H. & D. H. Crawford, of Arkadelphia, and Joseph S. Utley, of Benton, for appellant.

McMillan & McMillan, of Arkadelphia, for appellee.

MCCULLOCH, C. J. Appellee, Arkadelphia Milling Company, is a corporation engaged in the stave business at Arkadelphia, and in the year 1915 began buying staves from W. W. Brown, who was manufacturing staves in Montgomery county, Ark. Brown became indebted to appellee in a large sum of money, and in the year 1916 a contract was entered into between Brown and appellee, whereby the former agreed to manufacture and deliver 500,000 or more white oak staves at specified prices. It was stipulated in the contract that the appellee should make In view of Kirby's Dig. § 3313, where there advances to Brown, and that all indebtedness is personal service, so as to give the court ju- of Brown to appellee should constitute a risdiction of the person of the defendant, it is lien in appellee's favor on all stock on the not necessary that property be sequestered and brought within the control of the court in mill yard or yards of Brown. Brown also order to give jurisdiction to cancel a convey-executed a mortgage to appellee on certain ance as fraudulent. .

had.

real estate to secure payment of his indebtIedness to the latter. The parties proceeded under this contract, and Brown became more heavily indebted to appellee, and in August, 1917, appellee declined to make further advances to Brown for the operation of his stave mill in Montgomery county. The mill was shut down at that time, and was not

In a suit wherein plaintiff sought to set aside a conveyance as fraudulent as against creditors, the purchaser could not complain of the court's failure to marshal the debtor's as-operated thereafter. sets and enforce plaintiff's claim against the property other than that sold, where he did not ask for a marshaling of assets, and it was not proved that there was sufficient other property to pay the indebtedness.

8. Fraudulent conveyances 313(1) — Court properly adjudicated rights of parties as to whole controversy.

In a suit to set aside a fraudulent conveyance of personal property, the court properly adjudicated the rights of the parties respecting all of property in controversy, including some that had been shipped into another county, where an action had been brought by the purchaser against plaintiff, as the first adjudication would be conclusive as to the rights of the parties.

9. Appeal and error 1073(1) Adjudging rights as to property concerning which another action was pending not prejudicial.

In a suit to set aside a fraudulent conveyance of personal property, there was no prejudicial error in adjudicating the rights of the parties as to all the property involved, though

Brown was living in Womble, and the stave yard was located about 15 miles in the country out from Womble, and F. V. Cass, a former employé of Brown, was left in charge of the plant and stave yard. There were about 90,000 staves stacked on the yard. Each of the parties-that is to say, appellee and Brown-claimed Cass as his agent or representative in holding possession of the mill. It is unnecessary to a decision of the case to determine whether Cass held possession of the mill and staves on the yard as a representative of appellee or of Brown.

Appellee commenced this action in the Montgomery chancery court against Brown on February 23, 1918, to foreclose its mortgage on the real estate, and subsequently obtained an order from the chancellor appointing a receiver to take charge of the staves remaining on the mill yard of Brown in Montgomery county, and to restrain Brown from attempting to sell or remove any of the staves. The receivers appointed by the

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