Carmichael, Brooks, Powers & Rector, for appellants; Troy W. Lewis, on the brief.

1. Plaintiffs had no right of redemption. The time had expired. The act of 1915 could not be retroactive. Acts 1911, Act. 49; Act 43, 1915; 37 Cyc. 1390; 28 Ark. 304; 30 Am. St. 95; 16 L. R. A. 308; 51 Ark. 458; 105 Id. 40; 86 Id. 285.

2. This is a collateral attack upon a judgment. 118 Ark. 449; Castle's Suppl., § 1436; 114 Ark. 554; 94 Id. 588. The court had jurisdiction. 50 Ark. 188; 74 Id. 253, etc.

3. There was a disputed claim between the parties. This was a consideration, and the mortgage was not void. The sale was not void, and the time for redemption had expired. 43 Ark. 172; 44 Id. 556; 21 Id. 69; 99 Id. 588; 78 Id. 603.

Webster & White, for appellees.

1. The former decree is subject to attack. 83 Ark. 532; 60 Id. 374; 98 Id. 457; 124 N. W. 135.

2. There was no service. 51 Ark. 34; 83 Id. 532.
3. Amanda Williams not a party. 127 N. W. 782.
4. The tax was illegal.

5. Appellees were entitled to redeem. 99 Ark. 328. The act is retroactive.

SMITH, J. Аppellees were the owners of certain lots, which were sold to appellant Troy W. Lewis, on account of the nonpayment of the drainage taxes due thereon for the year 1913. The sale took place December 21, 1914, at which time the period allowed by law for redemption from such sales was one year. The General Assembly of 1915 passed an act, which was approved and became effective on February 9, Act 43, page 123, of that year, wherein it was provided that a period of five years should be allowed for redemption from sale for drainage and other special assessments. Lewis assigned the certificate of purchase to his wife, and, upon the expiration of the year, the sale was duly confirmed and a commissioner's deed executed to Mrs. Lewis. Thereafter, Lewis entered into negotiations with appellees concerning the lots.

Appellees say Lewis told them he was the owner of the lots, which constituted their homestead, and that he threatened to turn them out of doors unless they would pay him $125 for a quitclaim deed. This statement was denied by Lewis, but there was no testimony of any immediate coercion, and this alleged threat, if made, could have meant only that Lewis intended to enforce the rights given him under his purchase.

Lewis and wife executed a quitclaim deed to appellees, for the consideration of $125, which was not paid, but was secured by a deed of trust on the lots for that amount. Appellees brought this suit to cancel this instrument, upon the theory that it was a cloud upon their title, and was void, and the complaint, in which this relief was prayed, was accompanied by a tender of the taxes, penalty, and costs paid by Lewis on account of his tax purchase. Upon the final hearing, it was adjudged that the deed of trust was without consideration, and was void, and it was cancelled as a cloud, and this appeal has been prosecuted to reverse that decree.

The action of the court below is defended upon the ground that the sale was void, because of certain alleged jurisdictional defects; and it was also contended that a right of redemption existed, under the act of 1915, above mentioned, at the time of the execution of the quitclaim deed, and the deed of trust.

Very interesting briefs are filed upon these questions, and it is apparent that there was, and is, a genuine and serious controversy over the validity of this original sale, and of the existence of any right of redemption under this act of 1915. We expressly refrain from deciding whether this act of 1915 applies to sales made prior to its enactment, and likewise whether the sale was void.

We need only to ascertain that there was a genuine controversy between the parties to conclude that a sufficient consideration existed to support a contract for its adjustment. The existence of the controversy is, itself, the consideration, and it is immaterial that the claim of one of the parties subsequently proves to have been without valid foundation. Gardner v. Ward, 99 Ark. 588; S. H. Kress Co. v. Moscowitz, 105 Ark. 638.

These lots were worth $1,500, and were lost to appellees but for the quitclaim deed, which formed the consideration for the deed of trust, if appellants are correct in the contention, which they now earnestly make, that the sale for taxes was not void, and that the right of redemption had expired when the deed of trust was given.

It follows, therefore, that error was committed in adjudging this deed of trust to be void, and the decree to that effect is reversed, and the cause is remanded, with directions to the court below to enter a decree in accordance with this opinion.

1.

2.

3.

HALL V. ADAMS.

Opinion delivered March 19, 1917.

EVIDENCE-MALICIOUS PROSECUTION-TESTIMONY AT EXAMINING TRIAL. In an action for damages for malicious prosecution, evidence of statements of the defendant (in the malicious prosecution case) and his wife, made at the examining trial, are admissible. MALICIOUS PROSECUTION-BASIS OF THE ACTION. - To maintain an action for malicious prosecution, the existence of malice and probable cause must be shown, but malice may be presumed from evidence showing the want of probable cause; but the suit is not maintainable where defendant acted upon the advice of counsel, based upon a full statement of all the known facts.

MALICIOUS PROSECUTION-PROBABLE CAUSE-MALICE. -In an action for malicious prosecution, held, that defendant acted without probable cause, and that malice would be inferred from the evidence.

Appeal from Montgomery Circuit Court; Scott Wood, Judge; affirmed.

Hal L. Norwood, for appellant.

1. It was error to permit witnesses for the plaintiff to testify as to what Mr. and Mrs. Hall testified in the examining trial.

2. There was no malice and Hall had probable cause or was advised that he had, after stating all the facts to his attorney. This was a complete defense. 100 Ark. 316; 71 Id. 351; 107 Id. 74; 64 Id. 453; 82 Id. 252; 69 Id. 439; 96 Id. 325; 33 Id. 316; 32 Id. 166. If there was an honest belief that an offense had been committed, there was no liability. 82 Ark. 252; 32 Id. 763.

3. There must be both malice and want of probable cause. 32 Ark. 166, 763; 33 Id. 316; 63 Id. 387.

Rector & Sawyer, for appellee.

1. The testimony of Mr. and Mrs. Hall in the criminal cause was admissible. 71 Ark. 352.

2. Malice and want of probable cause are shown. 100 Ark. 316; 122 Id. 382; 107 Id. 74.

HUMPHREYS, J. Appellee recovered judgment in the Montgomery Circuit Court against appellant for $100 or account of a malicious prosecution for obtaining goods under false pretenses. An appeal from said judgment has been duly prosecuted to this court.

(1) The first assignment of error insisted upon for reversal is that the court erred in permitting appellee to make proof of the testimony given by Mr. and Mrs. Hall, wherein appellee was charged with obtaining goods under false pretenses. The alleged incompetent testimony was that given by Mr. Hall to the effect that he was present in his place of business and heard the conversation between Mrs. Foster, Pauline Adams and his wife, Mrs. Hall, at the time Pauline Adams signed the contract as security for Mrs. Foster, who had purchased certain goods from Hall; and the statement of Mrs. Hall to the effect that her husband was not in his place of business at the time this conversation occurred. At the time this testimony was offered by appellee, Hall had not testified. It was contended that the testimony was not admissible for any other purpose than to contradict Mr. Hall, should he take the stand and give the same testimony in this case that was given by him in the criminal prosecution. We do not think the position taken by counsel for appellant is tenable. The issue in the case at bar was whether or not Hall's prosecution in the criminal case was in good or bad faith. If Mrs. Hall's testimony in the criminal prosecution was correct on this point, then the testimony given by Mr. Hall was incorrect, and admissible as a circumstance to show whether or not his prosecution of appellee in the criminal case was in good or bad faith.

(2) The second assignment of error insisted upon for reversal is that there was no testimony tending to show that appellant was actuated by malice or that he had no probable cause to have appellee arrested. The law applicable to malicious prosecutions is clearly laid down in the case of Price v. Morris, 122 Ark. 382. In that case, the court decided that malice and want of probable cause must exist, but that malice might be inferred from the evidence showing the want of probable cause; also that where the defendant acted upon the advice of learned counsel, based upon a full statement of all the known facts, a suit for malicious prosecution would not lie. It becomes necessary to review the facts in order to ascertain whether appellant had probable cause for instituting the criminal prosecution against appellee; and whether the facts tending to show a want of probable cause are also sufficient from which to infer malice.

(3) The facts in the case are substantially as follows: Mrs. Foster purchased and received a suit and furs from W. H. Hall on December 30, 1914, on the installment plan, and signed a combination receipt and contract providing that the title to the property should not pass until the purchase price should be paid. Mrs. Kleeman signed the contract as security for Mrs. Foster. In April following, Mrs. Kleeman desired to be released from the obligation, and appellee signed the contract as surety for Mrs. Foster. W. H. Hall required all sureties on these contracts to be owners of furniture. Appellant's testimony tended to show that at the time appellee signed the contract, she stated to Mrs. Hall that she ran a rooming house at 224 Court Street, and owned her own furniture. Appellee denied making the statement. There is a sharp conflict in the evidence in this regard. Mrs. Foster paid $14 on the contract before appellee signed, and $4 thereafter, leaving a balance of $11 due Hall in May, when Mrs. Foster left the city of Hot Springs, tak