Brown v. Brown, 134 Ark. 380

Brown v. Brown

134 Ark. 380 | Ark. | 1918

HART, J.,

(after stating the facts). (1) It is earnestly insisted by counsel for the plaintiff that even if the testimony of Mrs. Haley Brown be considered competent that the finding of the chancellor is against the preponder anee of the evidence. It is settled in this State that if,.a deed, fully executed and so drawn as to convey a present title, is deposited by the grantor with a third person with directions to deliver it to the grantee after the death of the grantor, and the grantor reserves no dominion or control over the deed, the deed is not an attempted testamentary disposition but is effective as a conveyance of the title as of the date when the deed is deposited. Fine v. Lasater, 110 Ark. 425.

Tested by this rule we think the finding of the ehan- . cellor is not against the preponderance of the evidence.. Fred Brown was a minor at the time' his step-mother accepted the delivery of the. deed for him. The deed was for his benefit and was sufficient to vest title in him. Staggers v. White, 121 Ark. 328.

(2) Mrs. Haley Brown testified that after the deed had been executed and acknowledged by her husband and herself her husband handed the deed to her, saying that she knew what to do with it. In this she was corroborated by the person who wrote the deed and took her acknowledgment to it. When asked if she knew what her husband meant when he said that she knew what to do with the deed when he handed it to her, she replied that she did; that he had already told her that he wished it delivered to his son, Fred, after his death. It is true three witnesses testified that a few days after her husband’s death she told them that her husband did not authorize her to deliver the deed. This statement attributed to her was made in response to a question asked by one of the parties. They had come to see her about another matter and it is likely that she either misunderstood the question or answered it without considering carefully her words. In any event her statement made under the circumstances testified to by-the witnesses is not sufficient to overcome her positive testimony to the effect that the deed was delivered to her for Fred Brown. The record shows that T. J. Brown had given each of his other children a farm and that it was his intention to give the lands in controversy to his son Fred in order to place him on an equality with them. The testimony of the witnesses as to the declarations of T. J. Brown relative to the lands in controversy made after the execution of the deed to Fred Brown .and in the absence of the latter is not admissible in evidence to defeat the deed to Fred Brown. Welch v. Welch 132 Ark. 227. When all the facts and circumstances adduced in evidence are read together and considered in the light of each other, it can not be said that the finding of the chancellor is against the preponderance of the evidence.

(3) It is next insisted that Mrs. Haley Brown is a party defendant to the suit and that under section 3095 of Kirby’s Digest .she can not testify .against the plaintiff as to any transaction with or statements of T. J. Brown. Mrs. Haley Brown claims no interest in the lands in controversy. She is not interested in the result of the suit and is only a nominal defendant. Hence the provisions of the section just referred to have no application to her and do not render her testimony incompetent. Walden v. Blassingame, 130 Ark. 448.

(4) Neither was the testimony incompetent as being a confidential communication as between husband and wife within the meaning of the fourth subdivision of section 3095 of Kirby’s Digest. Her testimony did not relate to private conversations between herself and her husband in his lifetime. She testified as to a transaction which occurred in the presence of a third person about a business matter which her husband directed her to do for him and which could not be regarded in any sense as a private communication between husband and wife. The matter was not in its nature private and could in no sense, under the circumstances, be termed the subject of confidential disclosure. Nolen v. Harden, 43 Ark. 307.

It follows that the decree must be affirmed.