126 Ark. 182 | Ark. | 1916
The appellees,. George C. Dudley, Guildford M. . Dudley, Houston Dudley and Lula Moon, who were the plaintiffs below, claim title in fee simple to certain lands in Jackson county, Arkansas, and instituted this action in the chancery court of that county to cancel a deed which is alleged to constitute a cloud on their title. They claim title to part of the land by inheritance from their grandfather, George W. Bandy, and to the other part under devise from their grandmother, D. S. M. Bandy, and by a partition between them and the other heirs and devisees of the lands.
George W. Bandy and D. S. M. Bandy were husband and wife, and the latter died in the year 1906, seized and possessed in fee simple of certain tracts of land which included a portion of the lands in controversy. The remainder of the lands in controversy were owned by George W. Bandy, who died intestate in the year 1914. Appellees are grandchildren of George W. Bandy and D. S. M. Bandy. Mrs. Bandy left a will whereby she devised her lands to her husband for life' and provided that at his death the estate should be divided between her children and grandchildren. George W. Bandy seems to have had the idea that he possessed the power of disposing of all the lands, and on May 8, 1912, he executed a deed purporting to convey the lands in controversy to appellees, “and to the heirs of the respective body of each, provided, either of them leave no heirs of the body surviving, then the interest of such grantee in the lands herein conveyed shall revert to my heirs surviving me.” This deed was not delivered or placed of record during the lifetime of George W. Bandy, but after his death it was recorded by one of his children who did so pursuant to instructions which her father had given her.
On March 14, 1913, all of the children and grandchildren of George W. Bandy and D. S. M. Bandy, upon the suggestion of the former, executed to him a quitclaim deed conveying their interests in all of the lands, those owned by D. S. M. Bandy as well as those owned by George W. Bandy, for the purpose of placing the title in George W. Bandy so that he could divide all the land between those parties and reconvey • to them their several shares. George W. Bandy died intestate without having reconveyed the lands to any of his children or grandchildren, but subsequently they got together and by mutual agreement divided the lands. Appellees attempted to sell their land, and, for the first time they claim, made discovery on the record of the deed which their grandfather, George W. Bandy, had executed and which had been placed of record after his death. Their contention is that they did not accept the deed, knew nothing of its existence, and that the apparent restriction upon the estate conveyed by the deed constitutes a cloud upon their title and they ask that the same be removed by cancellation of the deed.
Appellants are the children of appellees, and are made parties on the theory that if the deed created an estate tail it would, under the statutes of this State, vest a life estate with remainder over “in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law. ” (Kirby’s Digest, Sec. 735) which would be the heirs of the body of the first taker. Appellants are infants residing with their parents, and some of them are non-residents who were brought in by publication of warning orders. A guardian ad litem was appointed for the infants, who appeared and filed an answer raising an issue upon every material allegation of the complaint. The cause was heard upon the pleadings and upon the depositions of witnesses, and the court entered a decree in favor of appellees cancelling said deed as a clond upon their title.
In those eases the deeds were delivered to a third person to hold for the benefit of the grantees, and the circumstances warranted the inference that a delivery was intended and the acceptance was presumed, the deeds being entirely for the benefit of the grantees. In the present case, the facts are that Mr. Graham, the person to whom the grantor delivered the deed, together with other papers, never knew what the contents of the papers were but took them and kept them merely as custodian for the grantor himself. No direction was ever given by the grantor to Mr. Graham to hold the deed for any particular person, or to make any disposition of them. On the contrary, the testimony shows affirmatively that he delivered the deed to Mr. Graham “for safe keeping.” He told his daughter later that he wanted her to get the papers from the safe of Graham Brothers, after his death, and record them, which she did, but she did not know the contents of the papers. In this state of the proof the chancellor was warranted in finding that no delivery was intended, that the grantor kept the deed under his own control and dominion, that the custodian did not receive the deed as agent or trustee of appellees and no acceptance can be presumed.
Appellees have á clear and unrestricted title to the property in controversy under the partition deeds from the other heirs of. George W. Bandy and D. S. M: Bandy, and this deed constitutes a cloud on their title in that it appears to convey a life estate only to them. They were entitled, therefore, to have that cloud removed, and the chancery court was correct in granting the relief prayed for.
Affirmed.