268 S.W. 29 | Ark. | 1925
The evidence in the case and the fact that appellee waited more than three years before attempting to claim any ownership in the property, is convincing that he agreed to take up the debt for appellants by buying in the property at the sale and holding same under a commissioner's deed for his security. The case falls within the provisions of the statute, C. M. Digest, 4868, and the principles announced in Ammonette v. Black,
Appellee answered denying all the allegations of the complaint, and set up, by way of cross-complaint, that appellant Eason was in the unlawful possession of the lot, and had been since the 5th day of December, 1921; that by reason of such possession, the appellee had been damaged in the sum of $112. He prayed judgment for the possession of the lot, and for damages.
The testimony for the appellants followed closely the allegations of their complaint. It was shown, in addition to these allegations, that the lot in controversy was worth about $1,000. The appellants testified to the contract as set up in their complaint, and that appellee bought the lot pursuant to this contract, and refused, after they had paid him the sum of $98, to receive the balance of the purchase money paid by him for the lot, and refused to make Eason a deed.
Alice Wilson testified that, on the day of the sale, she told certain parties that the appellant had entered into the contract with appellee to buy the lot in for Eason, and these parties corroborated her testimony in that respect. There was also testimony to the effect that the party who held the judgment against the appellants for which the lot was sold, heard his son say that the appellee purchased the lot for the appellants.
The appellee testified that he never made any agreement with the appellants to buy the lot in controversy. He bought the lot on the day it was dated for sale, and paid the money to the commissioner and received his deed; that he never agreed to buy the property in for anybody; that the appellants had not paid him the sum of $98 on the purchase money. After appellee bought the lot, he told Eason that he would have to pay the sum of $7 per month rent for same. Appellee did not receive any rents from Eason, and had him arrested on one or two occasions for failure to pay the rent. Eason had paid only the sum of $15.80 for the whole time he had been there. Appellee, since his purchase, had continuously *323 paid the taxes on the property. The property had a value of about $500. Eason lived on the property at the time appellee bought the same in 1921, and had been living on it ever since. The appellee further testified that Alice Wilson came to see him on the day of the sale and asked him if he would buy in the property, and he told her he didn't want to fool with it in the condition it was in.
The appellants testified, in rebuttal, that they never agreed with the appellee at any time to pay rent on the place.
The trial court dismissed the appellants' complaint for want of equity, and entered a decree in favor of the appellee for the possession of the property and the sum of $129.56, balance due appellee on the rents, from which decree is this appeal.
The appellants seek to establish a trust ex maleficio on the part of the appellee concerning the lot in controversy, under the provisions of 4868, Crawford Moses' Digest, as follows:
"Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything contained in this act."
The alleged contract between the appellants and the appellee concerning the lot in controversy was oral, and was void and unenforceable under the statute of frauds, unless the testimony was sufficient to prove an implied trust under the above statute. See 4867, C. M. Digest.
In LaCotts v. LaCotts,
According to the testimony of the appellants, the appellee intentionally deceived them when they were seeking to make arrangements to have some one purchase the lot, by telling them that he would purchase the same and take title in his own name as security and allow them to repay him the purchase money. It is manifest that, if this testimony of the appellants be true, appellee, by these false and fraudulent representations, deceived *325
the appellants and caused them not to proceed further to make arrangements to purchase the lot, which they might have done but for such promises and representations upon the part of the appellee. But the burden was upon the appellants to prove that the appellee defrauded them in the manner alleged. The testimony of third parties, to the effect that Alice Wilson told them, on the day of the sale, that the appellee had agreed to buy the lot in controversy for the appellants, was not competent as proof in corroboration of her statements that such a contract was entered into between appellee and appellants. Such statements of Alice Wilson, in the absence of the appellee, were not binding on him, and there is no testimony in the record, except the testimony of the appellants, to the effect that the oral contract was entered into as alleged by the appellants. The testimony of the appellee, on the other hand, is as strong to the effect that he did not enter into such a contract. With this conflict of testimony, we are convinced that the appellants have not established a trust ex maleficio under the requirements of the rule announced in Tiller v. Henry,
The decree is therefore correct, and it is affirmed. *326