162 Ark. 140 | Ark. | 1924
(after stating the facts). Both parties claim title under mesne conveyances from James Hill. Hence it is not necessary to go back of his title; for neither party would be allowed the inconsistency of claiming under and attacking the same title. The plaintiff, G. W. Naill, claims that he is entitled to maintain this action upon either of two theories. The first is that he has the paper title to the land in controversy, and the second is that, even if it be decreed that the defendant has the legal title to the land, or any equitable interest therein, he is an innocent purchaser for value.
Taking up these propositions in their inverse order, but little need be said to show that the plaintiff is not an innocent purchaser for value. Practically the undisputed facts are that the defendant, Kirby, was in the possession of the land in controversy at the time Mary Price conveyed it to G. W. Naill. Such possession was equivalent to actual notice of the title, rights or equities of Kirby. Thalheimer v. Lockert, 76 Ark. 25, and Craw ley v. Neal, 152 Ark. 232. Besides, Naill admits that he knew that Kirby was in possession of the land and claiming title to it at the time he purchased it. Tliey lived in the same neighborhood, and an investigation of the source of Kirby’s title would have led to a knowledge of the alleged defects in the title of Naill. The latter is bound by a knowledge of the defects in his title which an investigation would have disclosed. Krow & Neumann v. Bernard, 152 Ark. 99. It necessarily follows that the plaintiff was not an innocent purchaser of the land in controversy.
This brings us to a consideration of his title. The plaintiff, Naill, claims title by a warranty deed from Mary Price to himself and by a warranty deed from James Hill to her of the date of January 25, 1912.
The defendant claims that James Hill and Phoebe Hill, his wife, conveyed the land to Gr. W. Walker on the 29th day of .December, 1894; that Gr. W. Walker and his wife conveyed the land to Phoebe Hill; that Phoebe Hill died owning the land, and that her heirs at law then conveyed it to the defendant, Kirby.
As we have already seen, the deed from James Hill to Mary Price was executed on the 25th day of January, 1912, and was duly filed for record on the 10th day of April, 1912. The deed from Mary Price to Gr. W. Naill was executed on the 20th clay of September, 1918, and-filed for record on the same day. The defendant received a deed from the heirs at law of Phoebe Hill, deceased, in September, 1913, and the undisputed facts show that he was in possession of the land at the time the plaintiff obtained his deed from Mary Price.
But it is contended by counsel for the plaintiff that the title to the land never passed into Phoebe Hill. It is first insisted that the deed from James Hill and Phoebe Hill of the date of December 29, 1894, conveying the land to G-. W. Walker, is void and did not pass the title out of James Hill. This deed was signed by James Hill and Phoebe Hill, his wife, by marks, and acknowledged before J. Í). Hall, a justice of the peace. The signatures of James Hill ancl Plioebe Hill by marks. do not appear to have been -attested as provided by our statute. James Hill and Phoebe Hill could not read and1 write. The method provided by statute for attesting the signature of a person who cannot read or write is not exclusive, but only establishes prima facie the genuineness of the signature without other proof of signing. The grantors in this deed appeared before a justice of the peace and acknowledged the execution of the deed. Their signatures -were signed to tire deed, and, even if unauthorized, they were ratified by the grantors appearing before the-justice of the peace and acknowledging the execution of the deed. Ward v. Stark, 91 Ark. 268. Therefore the deed of James Hill and Phoebe Hill, his wife, to Gr. W. Walker passed the title out of James Hill, unless it be treated as a mortgage, as contended by counsel for the plaintiff.
Counsel for the plaintiff testified that J. D. Hall, the justice of the peace before whom the deed was acknowledged, had admitted to him that the deed was executed either for money borrowed from Walker or security in aid of the son of James Hill, and that the deed was given in aid of a settlement between Hill and "Walker.
At the trial J,. D. Hall testified that the deed w-as executed pursuant to a plan whereby James Hill intended to convey the land to Phoebe Hill, his wife. The statement of Hall to the counsel' of the plaintiff is not affirmative proof that the deed was intended as a mortgage or in settlement of any transaction between Hill and Walker. At most the testimony of the attorney for the plaintiff affected the credibility of Hall as a witness, and Hall’s statements to him could in no manner prove as substantive evidence the effect of the transaction between Hill and Walker.
It is well settled in this State that a deed absolute on its face can only be shown that it was intended to be a mortgage by clear, unequivocal and convincing evidence. Wimberly v. Scroggin, 128 Ark. 67, and cases cited. We are therefore of the opinion that the deed from James Hill and Plicebe Hill to (I. W. Walker divested the title to the land out of James Hill.
It is next contended by counsel for the plaintiff that the deed of May 9, 1895, in which G. W. Walker and Martha T. Walker are named as the grantors and Phoebe Hill as the grantee, which was not signed by G. W. ¡Walker and wife, but was signed by James Hill and Plioebe Hill, did not convey the legal title to Phoebe Hill. In this contention we think counsel for the plaintiff is correct, especially when we consider the chapters of our Digest on Conveyances and the Statute of Frauds. It has been frequently said that the clear weight of authority is to the effect that a deed which is not signed by the person named therein as the grantor is not effective to convey the interest of the person named1 as grantor. The reason is that a conveyance, to be effective, must contain not only the names of the parties, but also words indicative of an intent to transfer an interest in the described property from one to another. Agricultural Bank of Mississippi v. Rice, 4 How. (U. S.) 225; Cordano v. Wright (Cal.), 115 Pac. 227; Ann. Cas. 1912-C, 1044, and cases cited, and note to Ann. Cas. 1916-E. at p. 521.
It does not follow, however, that the deed, although invalid to pass the legal title to Phcobe Hill, did not convey to her an equitable interest in the land. In the case of Swindall v. Ford (Ala.), 63 So. 651, it was held that, while a deed signed 'and acknowledged by a person when the body of the deed makes no mention of him, is void as a conveyance of his interest, it is, as a contract to convey, good and enforceable.
In Stirman v. Cravens, 29 Ark. 548, the court said that our statute of ejectment recognizes equitable titles, such as certificates of entry, preemption, etc., as sufficient evidence of title to maintain ejectment, and asked what reason there could be for holding that the same metal which would make a sword might not make a shield?
We think that case recognizes the principle that, under the facts of this case, while a complete legal title may not have been conveyed to Phcebe Hill, she acquired such an equitable interest, which, being accompanied with possession by Kirby, protected his possession against Naill. As we have already seen; James Hill is the.common source of title of both parties, and the legal title passed out of him by his conveyance to G-. W. Walker. According to'the testimony of Hall, it was intended by James Hill to convey the land in question to his wife, Phcebe Hill, and he was advised by CL W. Walker, a negro lawyer, to first make a deed to him and that he would then convey -the land to Phoebe Hill. The conveyance to Walker invested him with the legal title, and, under the circumstances, we think the subsequent deed in which Gr. W. Walker and wife are named as the grantors and Phoebe Hill as the grantee, conveyed an equitable interest to her, although the deed was not signed by Gr. W. Walker and wife, but was signed by J ames Hill and Phoebe Hill. This is especially so when we remember that all the parties were negroes, and that James Hill and Phcebe Hill could not read and write, and that CL W. Walker wrote the deed. It is true that the testimony of J. D. Hall to this effect is greatly weakened on cross-examination, but it is not entirely overcome. This is especially true under the existing circumstances. James Hill, Phcebe Hill and Gh W. Walker are all dead. The widow and heirs of- GL W. Walker made no defense to the action, and are claiming no interest in the land. J. H. Plall is not shown to have any personal interest in the matter. His contradictory statements to plaintiff’s attorney may have been the result of a faulty memory, but, whatever was the cause of it, his testimony of the main facts is not entirely overcome, but is only weakened by his contradictory statements and bjr his cross-examination.
The plaintiff does not in any way claim title from Gr. W. Walker. In this connection it may he said that the defendant is not asking affirmative relief, but is only seeking to protect his possession, which was taken after acquiring the equitable interest of Phoebe Hill. It is well settled that one who holds land under ail equitable title cannot be ejected therefrom. Gates v. Gray, 85 Ark. 25. Again, in the case of Dobbs v. Gilleti, 119 Ark. 398, it was held that the owner of an equitable title cannot maintain ejectment, but that he may maintain his own possession under such title.
But it is insisted by counsel for the plaintiff that the widow and heirs of G-. W. Walker, deceased, filed no answer and made no defense to the action, and that, on this account, the plaintiff was entitled to have whatever title they may have had to the land vested in him. We do not think so. Kirby was in possession of the land when Naill purchased it, and whatever equitable interest he had in the land could not be divested out of him by making the heirs of G-. W. Walker, deceased, defendants to the action. He had a right to make his own defense to the suit, and his rights could not be prejudiced, or in any way affected, by the fact that the heirs of G-. W. Walker, deceased, failed or refused to make any defense to the action, or failed to cooperate with him in making Ms own defense.
Finally, it is insisted by counsel for the plaintiff that, if the defendant succeeds at all, he cannot succeed in holding the entire tract, because the deed to him from Fred Harris, while executed prior to the deed the latter made to Mary Price, was not recorded until four years after the deed to Mary Price was recorded. Phcebe Hill died, leaving two heirs at law. One of them was the mother of John Kirby and the other was Fred Harris. The deed from Fred Harris to John Kirby was executed in September, 1913. The deed from Fred Harris to Mary Price was not executed until the 19th day of October, 1914. The evidence shows that John Kirby was in possession of the land, through his tenants, at the time the deed to Mary Price was executed. The parties lived in the same neighborhood, and were related to each other.
It is fairly and legally inferable from all the existing circumstances that Mary Price knew that John Kirby was in possession of the land at the time she received her quitclaim deed from Fred Harris. Therefore, under the authorities above cited, sliq will be deemed to have had notice of the equitable interest of the defendant Kirby in the land. It is only by admitting that Phoebe Hill had an equitable interest in the land that the deed from Fred Harris to Mary Price could convey any interest at all. The deed was a quitclaim deed, and, if Phoebe Hill had no equitable interest in the land, Fred Harris, who was her brother and one of her heirs at law, could acquire no interest by inheritance, and had no interest to convey.
It follows from the views we have expressed that John Kirby had an equitable interest in the land, which, coupled with his possession at the time the plaintiff acquired an interest by purchase from Mary Price, enabled him to protect liis possession.
It follows that the chancellor was right in dismissing the complaint for want of equity, and the decree of the chancery court will be affirmed.
