97 Ark. 568 | Ark. | 1911
(after stating the facts). It is claimed by the plaintiffs that A. C. Hill derived title to the lands in controversy by mesne conveyances from the United States, and this may be assumed to be true. On the 5th day of November, 1880, A. C. Hill and his wife conveyed the land in controversy to Clayton Cotton, and the deed was duly recorded. At the time Clayton Cotton was 12 or 14 years old. The consideration recited in the deed was $75, the receipt of which is acknowledged.
For the plaintiffs, Z. R. Cotton testified that he was present when the deed from A. C. Hill and wife to Clayton Cotton was executed. That his father said that he wanted his son; Clayton Cotton, to keep the land, as the money which was paid for it came from Clayton Cotton’s mother. That she owned a tract of land in Montgomery County, Arkansas, which she sold before her death, and that he, Zara L. Cotton, got the money for it. That he wanted Clayton to keep this tract of land in remembrance of receiving something from his mother. That previous to this his father, Zara E. Cotton, had given to another brother and to himself 40 acres of land each. Witness further testified that Clayton Cotton was a half-brother to him and the other plaintiffs, being a son by the first wife of Zara L. Cotton. That the mother of Clayton Cotton died in 1868, and that Clayton Cotton never married, and died on April 10, 1893, age 25 years, in the State Insane Asylum. He does not state whether or not E. W. Dollarhide was present when the deed from A. C. Hill was executed to Clayton Cotton.
For the defendants, E. W- Dollarhide states that he was present when the deed from A. C. Hill and wife to Clayton Cotton was executed. He states that Zara R. Cotton was not present, and that the only persons present were Zara E. Cotton, A. C. Hill and himself. He stated further that both Hill and Cotton said that the former was indebted to the latter, and wished to pay the debt by conveying the land in question in satisfaction of it. That Cotton did not want the deed made to himself on account of being in debt, and that they both asked him about the ad-visibility of making the deed to Cotton’s wife. That he advised them against that course, and that, after some discussion, they concluded to make the deed to Clayton Powell, who was at the time 12 or 13 years old, and that the deed was so executed, the consideration for the deed being the debt due by A. C. Hill to Zara E. Cotton: He further testified that at that time Clayton Cotton had no means of any kind. He also stated that he is now a practicing attorney, but was not when the deed was executed, but that Cotton and Hill were.
On the 2d day of July, 1901, Zara E. Cotton and wife by quitclaim deed conveyed the land in controversy to E. E. Scbuman, and the defendants derived their title by mesne conveyances from her.
' Zara L. Cotton died on the 4th day of September, 1906, and this action was commenced on August 10, 1909. It will be noted that Clayton Cotton had no means with which to purchase the land, and it is not claimed that he paid anything for it. The plaintiffs claimed that the purchase money of the land was received from his mother’s estate. On the other hand, defendants claim that it was paid by the father. E. W. Dollar-hide and Zara R. Cotton were the only two witnesses who testify on that point, and they flatly contradict each other. Both their statements can not be true. Zara R. Cotton was a party to the suit and interested in the result. In any event the chancellor found this disputed question of fact in favor of the defendants; and it is well settled in this State that the findings of fact made by a chancellor will not be disturbed on appeal unless it appears that they are against the preponderance of the evidence.
But it is insisted by counsel for plaintiffs that the testimony of E. W. Dollarhide is incompetent within the rule announced in Waldroop v. Ruddell, 96 Ark. 171; Seawell v. Young, 77 Ark. 309; King v. Slater, 94 Ark. 589, and other like decisions of this court where it is held that declarations of a decedent going to show the character and extent of his possessions are competent, but that his declarations as to title are not competent because they are self-serving declarations. We do not agree with counsel in their contention. Dollarhide testifies that he was present when the contract was made for the purchase of the land, and his testimony is as to conversation» and transactions that took place between Hill, the vendee, and Cotton, the purchaser of the land, at the time the coircract of purchase and sale was made. It was testimony then of matters within his own personal knowledge. Such • testimony was admitted in the case of Rastman v. Powell, 51 Ark. 530, where the father purchased the land and took the deed in the name of his daughter, for the purpose of showing an advancement and to contradict the claim that there was a resulting trust in favor of the father. See also Robinson v. Robinson, 45 Ark. 481.
It follows that the decree of the chancellor must be affirmed; for the law of the case is settled by the decision in the case of Galloway v. Robinson, 19 Ark. 396. There the court held:
“Where the father advances the money for the purchase of lands and takes the deed in the name of the son, upon the death of the son without issue, the lands vest in the father in fee. In such case the lands come to the son ‘on the part of the father’ by gift, and were not a new acquisition by the son, within the contemplation and meaning of the act of descents and distributions of this State.”
It is, however, contended by counsel for plaintiffs that this case is overruled by later decisions of this court. In the first case referred to, Magness v. Arnold, 31 Ark. 103, the court did not decide whether the land was ancestral or a new acquisition because it was not necessary to do so. If the land was ancestral estate, it came from the father, and so the mother only took a life estate whether it was an ancestral estate or a new acquisition. Hence the court did not decide that question, and a careful reading of the opinion will show that fact.
In the case of Hogan v. Finley, 52 Ark. 55, the land was donated under the laws of the State. It is true the father paid the donation fees and had the deed made to his son; but the court held that, the father not having paid any consideration for the land, it could not be a gift from him and in consequence a new acquisition. So in the case of Wheelock v. Simons, 75 Ark. 19, the daughter took as a purchaser under a will from a stranger to the blood, and the court held in such case that the estate was a new acquisition.
This court has frequently held that the purchase of land by a father and conveyance to his son by his direction is, in the absence of proof to the contrary, presumed to be an advancement, and not a trust. White v. White, 52 Ark. 188; Eastham v. Powell, 51 Ark. 530; Bogy v. Boberts, 48 Ark. 17; James v. James, 41 Ark. 301; Kemp v. Cossart, 47 Ark. 62.
“An advancement is an irrevocable gift in praesenti of money or property, real or personal, to a child by .a parent to enable the donee to anticipate his inheritance to the extent of the gift.” 14 Cyc. 162.
Advancements are chargeable to the child in the distribution of the donor’s estate. Goodwin v. Parnell, 69 Ark. 629; Culberhouse v. Culberhouse, 68 Ark 405; Kemp v. Cossart, 47 Ark. 62.
We are of the opinion that the land in controversy came to Clayton Cotton from his father within the meaning of our statutes of descents and distributions, as construed in the case of Kelley’s Heirs v. McGuire, 15 Atk. 555, and that, upon the death of Clayton Cotton, the title in fee vested in his father, Zara L. Cotton. Zara L- Cotton conveyed the land by quitclaim deed to E. E. Sehuman, and the defendants derived their title by mesne conveyances from her. Hence the plaintiffs have no title to the lands, and, as above stated, the decision of the chancellor was correct. The decree will be affirmed.
