Hampton v. Haneline, 125 Ark. 441

125 Ark. 441 | Ark. | 1916

Wood, J.

(after stating the facts.) The appellant alleged in his cross-complaint that the grantees in the deed under which the appellees claimed title fraudulently caused said deed to recite a consideration of $100 instead of the covenant to support the grantor, and secured the grantor to sign the deed in the belief that it recited the true consideration.

The appellees, in their answer to the cross-complaint, “deny that the deed under which they hold is null and void, or that any fraud, as alleged in defendant’s cross-complaint, was practiced, etc.”

Upon these allegations of the complaint and answer it cannot be said that the appellees admitted that the ' $100 consideration was fraudulently inserted in the deed under which they claimed. Appellees challenged that allegation in the cross-complaint of the appellant.

Oral testimony was taken on this issue, which the appellees moved to strike from the record, but the court overruled appellees’ motion and considered the testimony. There was no testimony to justify a finding that the grantees, in the deed under which the appellees claim title, had perpetrated any fraud upon the grantor, Mrs. Amanda Haneline, in the procurement of the deed. There was nothing in the testimony to warrant the conclusion that the consideration of $100 named therein was fraudulently inserted in the deed. The fact that there was an additional consideration in the way of a promise on the part of the grantees for support, etc., would not be sufficient to show that the insertion of the $100 as the consideration, without mentioning the additional consideration, was a fraud practiced upon the grantor by the grantees in the procurement of the deed.

(1) The grantor makes the deed. The presumption is that he had the real consideration recited therein, and in the absence of testimony tending to show that the pecuniary consideration named in the deed was inserted therein by mutual mistake or by some fraud practiced upon the grantor at the time he signed the deed, neither the grantor nor those claiming under him can be permitted to question the consideration named in the deed for the purpose of invalididating the same. See Davis v. Jernigan, 71 Ark. 494; Wallace v Meeks, 99 Ark. 350-354.

In the latter case this court quoted from Hendrick v. Crowley, 31 Cal. 472, as follows: “There is no doubt but that parol evidence is admissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the written instrument. But this is not the-rule, but an exception to the rule, that the legal effect of a written instrument cannot be varied or defeated in whole or in part by parol evidence. The exception can never be allowed to override the rule, for that would be to dispense with the rule entirely and preserve the exception. The exception always loses its governing force when it comes in conflict with the rule which it qualifies, and must yield to its higher claim. Hence the consideration cannot be contradicted or shown to be different from that expressed when thereby the legal operation of the instrument to pass the entire interest according to the purpose therein designated would be defeated.”

(2-3) Of course, if the consideration was not the true consideration, and was inserted through fraud or mutual mistake, such fact might be shown to defeat the conveyance. Since the deed to appellees recited a pecuniary consideration, and there' was no proof that such consideration was inserted by mutual mistake or through any fraud practiced upon the grantor at the time, the court should not have considered any testimony of another, different, .or additional consideration adduced for the purpose of defeating the conveyance.

The court, however, sustained the deed under which appellees claim under the law applicable to the facts that should have been considered by the trial court. The finding was correct and therefore must be upheld by this court.

(4) The appellant had a deed also from. Mrs. Haneline executed after the deed under which appellees claim title and appellant recorded his deed before the other deed was recorded. But the court found that appellant had knowledge -that the deed under which appellees claim had been executed prior to his deed. This finding of the court is sustained by a preponderance of the testimony.

While appellees prayed an appeal from the judgment against them in favor of appellant in the sum of $150 for improvements and services rendered to Mrs. Haneline by appellant, they do not contend in their brief that the decree against them for this am'ount should be reversed. They say: “It was proper to charge appellee with improvements placed upon the land by Hampton, and'there is no objection to charging them for keeping Mrs. Haneline ten and a half months.” In the concluding part of their brief they say: “This case should be affirmed.” Thus appellees concede that appellant was entitled to compensation for services and remuneration for improvements. The finding of the trial court as to the amount is supported by a preponderance of the evidence.

There is no reversible error in the record and the decree is therefore in all things affirmed.