152 Ark. 628 | Ark. | 1922
This suit was instituted in the Woodruff Chancery Court, Northern District, by appellee, Herman F. Henkle, against appellants, George Bostleman, Gussie Meinah, Eckhardt Bostleman, and Howard and Marvin Vaughan, minors, for the purpose of confirming title in appellee to about 2,532 acres of land in said district and county. Summons was issued upon the petition on the 18th day of May, 1920, and on the same date, and prior to the service upon the minors, Marvin and Howard Vaughan, the clerk of the court appointed August Bostleman guardian ad litem, to defend for said minors. Return was not made upon the summons until May 29, 1920. On July 6th thereafter August Bostleman, guardian, who had been appointed by the clerk for the Vaughan children, filed an answer denying all the material allegations of the petition. No substantive steps had been taken in the case prior to the time the answer of said guardian was filed. In the petition for confirmation appellee deraigned title to said real estate through mesne conveyances from the State. In deraigning the title it was alleged that appellee acquired an undivided interest in said real estate in 1911 by warranty deed from his mother,- Caroline Henkle, who had acquired the title thereto from her son, Emil Henkle, by parol gift. The pleadings, as finally made up, presented two issues, the first being whether Caroline Henkle, the mother of appellee, acquired an undivided one-half interest in said real estate from her son, Emil Henkle, in 1908, or thereabouts, and the second being whether appellee had acquired title to said real estate by seven years’ adverse possession. The evidence shows that in 1903 appellee, Herman Henkle, and Emil Henkle became the joint owners of the lands in question. The weight of the evidence shows that Johann Henkle, the father of Herman Henkle, advanced $5,000 to Emil with which to purchase his interest therein. In 1908 Emil Henkle, a single man, died intestate, leaving surviving him his father, Johann Henkle, his mother, Caroline Henkle, his brother, Herman Henkle, his sister, Mrs. Emelia Schwartz, his sister, Mrs. Emma Crissman, and the heirs of a deceased sister, Augusta Bostleman Vaughan. Mrs. Caroline Henkle died in the year 1912, and Johann Henkle died in the year 1913. Prior to the death of Mrs. Caroline Henkle, she conveyed an undivided one-half interest in said real estate to appellee. The evidence is in conflict as to whether she acquired the title to an undivided one-half interest therein from her son, Emil Henkle, in the year 1908. After a careful analysis of all the evidence we have concluded that the weight thereof shows that Emil Henkle, who was in poor health and indebted to his mother in a large sum, to-wit: $2,000, and perhaps as much as $5,000, made an oral transfer to her of his undivided one-half interest in said property in full payment of said obligation. They were living together at the time and continued to reside together upon the property thereafter until the death of Emil Henkle, but the weight of the evidence shows that he surrendered dominion over the property to her, and that she after-wards paid the taxes thereon and otherwise exercised ownership over it. The witnesses, in detailing the transaction, referred to it as a gift. While the weight of the evidence is sufficient to uphold the transaction as a completed gift for defensive purposes, it is lacking in some necessary essentials to uphold it as a gift for affirmative purposes. The evidence fails to show that Mrs. Caroline Henkle made any valuable improvements upon the property after acquiring it. Equity will not enforce a parol gift, of land unless followed by possession and valuable improvements made by the donee. Young v. Crawford, 82 Ark. 33. This suit is for the purpose of enforcing the oral transfer of Emil Henkle’s undivided interest in said lands to his mother against the heirs of Emil Henkle. Appellee requested affirmative relief; against them. While the evidence is insufficient to uphold the transfer as an enforceable gift, we think, as seated above, that it is sufficient to uphold the transaction as a completed oral sale. The forgiveness of the debt existing between the mother and son furnished the consideration, and the surrender of dominion over the property by Emil Henkle to his mother was sufficient part performance to obviate the statute of frauds.
We deem it unnecessary to refer to or discuss the evidence responsive to the issue of whether appellee acquired title to said real estate by adverse possession, as we have reached the conclusion, upon consideration of the evidence in the case, that Mrs. Caroline Henkle acquired title to an undivided one-half interest in said real estate from her son, Emil Henkle. The facts are amply sufficient to uphold the finding of the chancellor upon that theory.
Appellants insist, however, that the case must be reversed as to the minors because the clerk appointed a guardian ad Utem for them before service was had upon them. The evidence shows that the guardian ad litem appointed by the clerk filed an answer denying all the material allegations in appellee’s bill after service was had upon them and 'before any substantive steps had been taken in the progress of the ease. The purpose of the appointment of a guardian is to have a real defense made for minors throughout the trial of the case, and the statute requiring the appointment of the guardian to be made after service was met in the acceptance of the answer by the court, tendered and filed by the guardian after service had been had upon the minors. Courts of equity look to substance, not to form. The minors in the instant case had their day in court. The defense made for them was real at every material step in the progress of the trial.
No error appearing, the decree.is affirmed.
