101 Ark. 368 | Ark. | 1911
(after stating the facts). It is the contention of counsel for the defendants that the 40 shares of stock in the building & loan association was subscribed by Mrs. Fannie Lyons for Ike Lyons, and the stock entered in that manner on the books of the company because Ike Lyons was a minor. They claim that Ike Lyons has paid the dues of $6 per month from the time the stock was subscribed on December 20, 1900, until the date of its maturity, January 10, 1910, its value at date of maturity being $1,043.34 Hence they insist that Fannie Lyons holds the stock as trustee for Ike Lyons.
It will be remembered that Max, Fannie and Ike Lyons all testified to this effect, and that the entry on the books of the building & loan association was Fannie Lyons for Ike Lyons. Of course, this evidence tends to show that Fannie Lyons held the stock as trustee for Ike Lyons, but it is by no means conclusive evidence of a declaration of trust on the part of Fannie Lyons in favor of Ike Lyons.
A. Bertig flatly contradicted their testimony that the stock belonged to Ike Lyons. He says that they all told him that Fannie Lyons was the owner of the stock. While it is true, as contended by counsel for defendants, that this court has held that a minor can not by misrepresentations estop himself from asserting title to his own property, still his declartions that he does not. own certain property is competent evidence against him when the title to the property is in question. His declaration that he does not own property is a declaration of án existing fact, and is not admitted against, him by way of estoppel, but as evidence of an independent fact of which he has knowledge and can testify. Being a declaration against his interest, it is admitted as independent testimony, where the question of ownership is at issue. The testimony of Mrs. Fannie Lyons that she did not own the stock is contradicted by the assignment made by her when she first procured the loan of the $300 from the Van Burén bank. There she asserted ownership in herself, and certainly could not have secured the loan on the faith of it as collateral if the bank had not believed she was the owner of it.
It is not claimed that either Max or Fannie Lyons paid the dues for Ike Lyons, and the stock was a gift to him; but it is claimed that Ike Lyons has paid all the dues on the stock from the beginning. It is true that Max, Fannie and Ike Lyons all testify that he made his payments from his earnings; but they content themselves with this bald statement. Ike Lyons was only 12 years old when the stock was subscribed, yet they say he paid $6.00 per month and the cost of his living from that time forward by odd jobs that he did after school. They admit that he had no regular employment at that time, and their statements that he paid the dues out of his earnings by doing odd jobs after school are too improbable to be accepted as true, in the face of the other circumstances in the case. Then, too, it seems incredible that he earned $1,000 above his expenses while selling Official Maps and Guides at the World’s Fair in the space of seven months. It will be noted that he was employed with other boys in this work, and received a commission of 20 per cent, on sales made by him. If that was true, the net profits on his sales of these maps and guides must have amounted to between $5,000 and $6,000. It is no doubt true that he earned some money there, but it is not probable that he earned the amount he testified he earned. It will also be noted that when Max Lyons failed in business, his wife was brought forward, and business was commenced in her name. Max_ Lyons admits that this was done because he could not do business in his own name. When his wife failed, his minor son was brought home to bid in the stock of goods at bankrupt sale.
. Four hundred dollars were paid in cash, and Max Lyons and C. P. Pernot made a note for the deferred payment. It is not likely that Pernot would have gone on the note of a 15 or 16-year-old boy to buy out a mercantile business. Ike Lyons admits that he only brought $400 back with him, and says that he left the rest with his uncle in St. Louis. It will also be observed that Max Lyons continued,to manage the business during all this time, and his was the guiding hand, no matter whether the business was run in his own name or in that of his wife or minor son, or the Lyons Mercantile Company.
It might be inferred from these facts and circumstances that Fannie Lyons did not, and never intended to, declare a trust in favor of Ike Lyons in the building and loan stock, and the taking out of the stock in the name of Fannie Lyons for Ike Lyons was colorable merely. This view is strengthened by the fact that Mrs. Fannie Lyons negotiated the whole transaction, attended to the payment of dues, frequently sending the payments in her own name, and by inference has kept control of the pass book, and has at all times, until after the failure of the Lyons Mercantile Company, exercised dominion and control over the stock, using it to procure loans for herself and asserting title thereto. The chancellor found that Fannie Lyons was the owner of the stock, and it is the settled law of this State that the finding of fact made by a chancellor will not be disturbed on appeal unless it is against the clear preponderance of the evidence.
After considering the testimony in all its bearings and in the light of the attendant circumstances, we can not say that the finding of the chancellor is against a clear preponderance of the evidence.
The decree will therefore be’ affirmed.
