137 Ark. 387 | Ark. | 1919
(after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to warrant the verdict. It is claimed that in order to make a valid gift, possession must at the time accompany it and that the proof in the present case fails to show that the property was delivered to the plaintiff. We do not agree with counsel in this contention, but think the question was one of fact for the jury and not of law for the court. The plaintiff was only fourteen years of age at the her mother died. It is fairly inferable from the evidence that her father took her to town and bought an automobile and drove home with her in it. He told a married daughter that he had bought the automobile for the plaintiff. He, also, told his married daughter that he had given the cow and the new furniture purchased by him, after his first wife’s death, to the plaintiff. He told other persons at the time he purchased the automobile and the furniture that he had bought them for the plaintiff. It is true his mere naked declaration that he had bought the property for his daughter did not confer title upon her, but it was evidence of title. Prater, Ad. v. Fraser and Wife, 11 Ark. 249. Where a gift is made to an infant, even, by the father himself and the father takes possession of the property, he holds as natural guardian, and the possession is the infant’s. Dodd v. McCraw, 8 Ark. 83, and Danley v. Rector, 10 Ark. 211. It follows that there was evidenee legally sufficient to warrant the verdict in favor of the plaintiff.
It is next contended that the court erred in giving instruction No. 1, as follows:
“You are instructed that if J. J. Gwin and the defendant paid off the mortgage executed by W. A. Haynes or any portion thereof, with property or the proceeds of property included in the mortgage and that they have in their possession other property included in said mortgage sufficient to satisfy, the balance, if any, due on said mortgage, neither of them acquires any title by virtue of the mortgage or title notes to the property included in the mortgage or title notes.” *
The court did not err in giving this instruction. The defendant could not take possession of the property included in the mortgage and procure an assignment of the mortgage to herself with it. Her act in taking the mortgaged property and satisfying the mortgage indebtedness with the proceeds of it amounted to a payment of the mortgage and could not be deemed an assignment of it. The rights of the mortgagee to the property was paramount to any right of dower she might have. The mortgage was given before her dower rights attached and according to the testimony for the plaintiff the property was given to her before the defendant married the father of the plaintiff. Hence there was no error in giving the instruction.
It is next insisted that the court erred in giving instruction No. 2. The instruction is as follows:
‘ ‘ If you find that W. A. Haynes gave to the plaintiff the cow in question, she is entitled to recover the possession of the cow notwithstanding one Owen may yet hold an outstanding title note to the same.”
There was no error in giving this instruction. This court has held that one purchasing under a conditional contract of sale has an interest which he may sell subject to reservation of title in favor of the nrst seller. Clinton v. Ross, 108 Ark. 442.
It follows from the principle of law announced in this case that W. A. Haynes had a right to give the cow to the plaintiff. Owen was not a party to the suit and his rights are not affected thereby. The court in its instructions placed the burden of proof upon the plaintiff and also by specific instructions told the jury to find for the defendant if it should find that there had been no delivery of the property to the plaintiff. In other words, the court by appropriaate instructions told the jury in effect, that to constitute a valid gift it is essential that there be a delivery of the property to the donee.
Finally it is insisted that the court erred in admitting certain evidence in regard to the change of’ the beneficiary in a life insurance policy on the life of W. A. Haynes in which his first wife was named as the beneficiary. It will be remembered that his first wife was the mother of the plaintiff. The plaintiff was permitted to prove that after the death of her mother, Haynes had the beneficiary changed to the plaintiff. Then after his marriage to the defendant he again had the beneficiaries changed so that the policy was made payable to the plaintiff and the defendant. Subsequently Haynes again changed the policy so as to appoint the defendant the sole beneficiary therein. The changes made by Haynes in the beneficiaries in the policy had no connection with or relation to the gift of the property in controversy by him to the the plaintiff. Hence the court committed an error in admitting the evidence to go to the jury; but it does not follow that the judgment should be reversed on that account. It is well settled in this State that this court only reverses for errors prejudicial to the rights of the party appealing. The evidence could have had no effect except as tending to prove that Haynes intended to give all of his property to his daughter, the plaintiff, after his first wife’s death. The undisputed proof shows this to be the fact. All of thewitnesses testified that he either told them that he had bought the property for his daughter or that he had given it to her. This referred to all the property in controversy. The only controversy between the parties was as to whether or not the property had been delivered to the plaintiff, and the admitted evidence had no bearing whatever on this point. As just stated, it was only admitted as a circumstance tending to prove that Haynes intended to give all his property to his minor child after his first wife died. The testimony being as to a fact which was proved by the uncontradieted evidence, there was no prejudice to the rights of the party appealing in allowing it to go to the jury. Bispham v. Turner, 83 Ark. 331; Bailey v. O’Neal, 92 Ark. 327; Kansas City So. Ry. Co. v. Morrisson, 103 Ark. 522; DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61; and St. L., I. M. & S. Ry. Co. v. Caldwell, 89 Ark. 218.
We find no prejudicial error in the record and the judgment will be affirmed.
