124 S.W.2d 823 | Ark. | 1939
Appellee, Joseph Randolph, brought this suit to cancel a deed which he had executed to appellant, Ida E. Patton, his foster sister. In the decree, from which is this appeal, granting the relief prayed, the following findings of fact are recited.
Randolph owed Payne Brothers the sum of $513.63, which was secured by a mortgage on a forty-acre tract of land which he owned. Appellee, Randolph, became ill, and was carried to his sister's home, and while there told her that he had been unsuccessful in his attempts to borrow money to pay Payne Brothers. Appellee applied to B. C. Pouncey for a loan on the land already mortgaged to Payne Brothers, which Pouncey declined to make unless the title was in appellant, whereupon the land was conveyed to appellant by appellee for the purpose of procuring the loan. It was then orally agreed between appellant and appellee that the land should be rented by appellant and the rents applied to the payment of the *655 money to be advanced by Pouncey, and when that indebtedness had been paid the land should be reconveyed to appellee. In reliance upon this agreement, and the confidence he reposed in his foster sister, appellee conveyed the land to her. Rents were collected by appellant for the years 1935, 1936, 1937 and 1938, in an amount sufficient to pay Pouncey, that indebtedness being evidenced by a mortgage which appellant gave Pouncey on the land, the debt to Payne Brothers having been paid when the loan from Pouncey was obtained.
Pouncey testified that he had no intimation that the deed from appellee to appellant was not an absolute conveyance, as it purported to be. He further testified: "Later on, about two years ago, he (Randolph) came to me and asked me, `Have I got any interest in this property?' I said: `No, you gave Ida Patton a deed.' He said the only reason he wanted to know about it was that he wanted to get a pension, and if he owned any property he could not get it, and he was glad to know that he did not."
There was no finding, nor was there any testimony tending to show, that any fraud or improper influence was exercised upon appellee to induce him to execute the deed. He executed the deed in reliance upon his sister's promise to reconvey the land to him when she had collected enough rent to pay the debt to Payne Brothers, and that collection has been made. The land was shown to be worth about $2,000. The testimony that appellant received the deed to the land from appellee upon the condition that it should be reconveyed when the Payne Brothers debt was paid is sharply controverted, but we accept that finding of the chancellor as being sufficiently established. However, the only fraud alleged or shown was that appellant did not keep faith with her brother, and fraudulently failed to reconvey the land to him. No attempt was made to show when this fraudulent purpose was conceived.
The opinion in the case of Holt v. Moore,
The deed here in question is an ordinary warranty deed. No debt subsisted between the grantor and grantee. No fraud was practiced in procuring its execution. The acknowledgment was taken by A. L. Waring, the president of the Bank of Hughes, who knew and was known to both parties. That official testified that appellee had discussed with him the execution of the deed both before and at the time of its execution, and appellee knew perfectly well that its purpose and effect was to convey the land to his sister.
It may be said of the testimony in this case as was said of the testimony in the case of Spradling v. Spradling,
In the case of Ammonette v. Black,
It may be said that there is lacking here any testimony of positive fraud, by means of which the legal title was wrongfully acquired, and the testimony shows only a mere parol promise to reconvey.
In the case of Tatge v. Tatge,
The case of Armstrong v. Armstrong,
Here, there is no question about appellee's intelligence. He appears to have been as canny as he was uncandid. Notwithstanding the fact that he alleged in his complaint, and his original testimony was to the effect, that he did not know that he had executed a deed but thought he had executed a will, his deposition shows that he possessed, at least, average intelligence, and we have no doubt, as Mr. Waring testified, that appellee knew exactly what he was doing when he executed the deed, and we are convinced also that no fraud, duress or deception was practiced upon him to induce its execution. His own and other testimony in his behalf establishes only the fact, that he conveyed the land to his sister in reliance upon her verbal promise to reconvey to him when his mortgage debt had been paid, and, as was said by Justice FRAUENTHAL in the case of Spradling v. Spradling, supra, this verbal promise, and its breach, is not sufficient, alone, to create a trust ex maleficio.
The decree of the court below, canceling the deed from appellee to appellant, must, therefore, be reversed, and the cause will be remanded with directions to dismiss the complaint as being without equity.