99 Ark. 588 | Ark. | 1911
(after stating the facts). It is first contended by the plaintiff that, under the terms of the will, the probate court had no jurisdiction to sell the land in controversy. It is next contended by him that the sale is void, so far as Ward and the other purchasers are concerned, because there was collusion between Ward and the mother of Edward Gardner in the procurement of the sale in the probate court. In other words, it is claimed by plaintiff that the evidence in the case shows that the whole proceeding under which the land was sold was for the purpose and with the understanding between Mrs. Gardner and Ward that she was, by the proceedings, to gain control of the larger part of the property, and get it out from under the control of the probate court. The views hereinafter expressed render it unnecessary to decide these two propositions of law, for we are of the opinion that the chancellor did not err in holding that the deeds, executed on the 3d of September, 1909, by Edward Gardner to the various defendants for the land in controversy were not procured by intimidation. It may be well at the outset to state the law applicable to this phase of the case. It will be noted that Ed. Gardner had brought suit against the defendants a few days before the deeds were executed. He was, on the one hand, asserting -title in himself, xnd the defendants, on their part, were insisting that they owned the land.
In the case of Satchfield v. Laconia Levee District, 74 Ark. 270, the court, speaking through Chief Justice Hide, said:
“The compromise of a disputed claim furnishes sufficient consideration to uphold the terms of said compromise, even though the asserted claim is without merit or foundation. Mason v. Wilson, 43 Ark. 172.
“The voluntary adjustment of a matter in dispute or litigation, even when protesting against it, effectually terminates the question or litigation, in the absence of intimidation, fraud or concealment producing -such settlement.”
In the case of Bosely v. Shanner, 26 Ark. 280, the court held (quoting from syllabus) :
“To render a contract void because of threats or menaces, it is necessary that the threats and circumstances should be of a character to excite tire reasonable apprehensions of a man or person of ordinary courage, and the promise, contract, or statement "should be made under the influence of such threats or menace.” -
Mrs. Gardner testifies that on -the evening of the 2d of September, 1909, her son, having received word from his friend Martin that the defendants were threatening him with serious bodily harm, left for his father-in-law’s, which was about twenty-six miles away. She says that when her half-brother, Bob Wish, came there that evening, he told her they were determined to find Ed. Gardner that night, and that she, becoming alarmed lest they should carry out the threats which had been communicated by Martin, first declined to tell where he was, but that when she foünd out that her half-brother knew where her son -was, she thought the best thing to do would be to go along with them. She left the house in the buggy with her half-brother, and when she got to where the defendants were she got out of the buggy and got into Mr. Still’s wagon. She says that Still said to_ her, with an oath: “I am getting tired of this land business.” She answered: “Don’t come to me like that. Come to me like a man, and put your whisky talk away.” She says Still was drinking at the time; that they then started on to Hulsey’s. She details the trip aoross the country to the top of the mountain where they halted. Upon the refusal of her son to come up ‘the mountain, they all went down to Hulsey’s after dajdight. She says on the way up to the house for breakfast that Still said: “If Ed. don’t do something, I will have to.” She also says that during the journey Still had his pistol lying on the seat where they were riding; that Ward, one of the defendants, also said to her,'“Ed. can go ahead and fight the case, and I will fight the case, too;”, and that then Ward said, “If I can not fight it one way, I will take it fist and skull fight.” She stated that she could tell that her son was afraid by his ways and looks; that he was pale and looked like a corpse; that her son’s actions showed he was afraid of the defendants; that she was with them until about io o’clock in the morning, at which time they left to go to the justice of the peace to execute the deed, when she then went home. She said she went there with the crowd because threats had been made that if her son did not do them right they would kill him; that she did not want to see them mob her son because he would not sign such papers as were offered him. Edward Gardner himself testifies that he had been informed that the defendants would mob him if he did not sign the papers they presented to him, and that he signed same because he was afraid that they would mob him. He said that when he settled with Kinsey on the day before that, his uncle, Bob Wish, told him that the defendants were talking about coming out to horsewhip him, and that he would not be surprised at anything that Still might do; that the next evening Martin came out and told him that there was a mob coming out there to make him sign tire deed, and advised him to go somewhere else and stay that night. Hulsey also testified that Ed. Gardner was excited, and was afraid he would be mobbed if he did not sign the deeds. On the other hand, each of the defendants testifies -that they had no intention of harming Ed. Gardner, and that they made no threats whatever against him to induce him .to sign the deed. They deny in positive and express terms that they ever made any threats of violence against the defendants, and in effect say that they were insistent about the compromise only because they had paid full value for the land once, and that they felt there was no merit in Edward Gardner’s claim. They say when they started out that night they thought he was at his mother’s home, and that it was understood by him that they were coming out to try to effect a compromise; that when they arrived at hig mother’s home and found that he had gone over to Hulsey’s, they concluded, while they -were about the matter, that they had just as well go over there to see him; that they went in the night time because it was cooler and also in order to save time. It is true, as claimed by counsel for plaintiff, that Still does not deny in direct terms that he had a pistol that night, but he does deny that he made any threats in regard to the matter, or that he intended to harm the plaintiff. Long, who was along with the party, was not interested except as attorney for the defendants, and testifies positively that he told Ed. Gardner that the defendants did not intend to harm him, and assured him that if he had thought so he would not have come with them. Long assured Ed. Gardner that the rumors of threats be had heard had been made by the defendants were without foundation, and that, if anything of the kind was attempted, he would abandon the case at once. Long also stated that he heard no threats made. Ed. Gardner admits that Long told him this, but that he did not believe that Long knew just how the matter stood. One of the party, who was a defendant, was a preacher, and another was a woman. On the next day after the deeds were signed Ed. Gardner .went to Hot Springs with Hulsey, cashed the checks given him by the defendants, and again talked with some of them. It will be noted that McNall and Mrs. Gardner divided up said one hundred and twenty acres tract into small parcels of land and sold them to the defendants, who paid value for the land, and who believed that they were getting good titles to same. In good faith they went on the land and began to build themselves little homes and otherwise make substantial improvements on them. During this time Ed. Gardner lived with his mother on the land she had gotten from McNall in exchange for the two-thirds’ interest in the one hundred and twenty acres of the land in controversy, and knew that the defendants had purchased from his mother and McNall, paid their value for them, and were occupying and improving them under the belief that they had a good title thereto. Moreover, the testimony shows that his mother had given him forty acres of the land she had acquired from McNall, but had not executed him a deed thereto. They sold this land to the defendant, Ward, received the purchase price therefor, and both Ed. Gardner and his mother joined in the execution of the deed. Other facts and circumstances were adduced in evidence which tended strongly to show that natural justice would prompt Ed. Gardner to have executed these deeds without any consideration. The 'testimony in this case is very voluminous. The witnesses were examined and cross examined at length. In such case it is very difficult to set out or to comment in detail on the testimony without making the opinion unnecessarily long. We deem it sufficient to say that the testimony is in direct conflict. The testimony on the part of the plaintiff is sufficient to show that he signed the deed on account of threats of great bodily injury to himself. On the other hand, it is equally certain from the testimony of the defendants that they did not attempt or intend to do him any bodily harm. In deciding where the preponderance of the testimony lies, the chancellor had a right to consider all the facts and circumstances adduced in evidence to consider whether the plaintiff, in executing the deed was prompted by a natural sense of justice and a sense of duty to his mother whom he had charged in his complaint with having fraudulently colluded with the defendant, Ered. Ward, to get possession of the lands, and get them from out of the control of the probate court, and as well his moral obligation to the defendants, or whether he was influenced by threats. When we consider all the relations of the parties toward each other and the details surrounding the whole transaction from start to finish, we can not say that the finding of the chancellor is against the preponderance of the 'evidence. If is a settled rule of this court that the finding of the chancellor upon issues of fact will not be disturbed on appeal unless it is clearly against the weight of the evidence.
The decree will therefore be affirmed.