116 Ark. 370 | Ark. | 1915
(after stating the facts). The deed of John H. Queen to .his son, Albert Queen, to the land in controversy, executed on the 17th day of January, 1895, was a warranty deed in common form and conveyed a fee simple title to the lands to Albert Queen.
It is contended, however, by counsel for appellants that the proof brings this case within that class of cases where there is an absolute conveyance on the one hand and in return a written declaration of trust upon which the property is held. That is to say, that John H. Queen made an absolute conveyance to Albert Queen, the proposed trustee, and that there was also a written contract of the purposes or trust upon which Albert Queen was to hold the property.' To sustain this contention they rely chiefly upon the testimony .of H. W. Byburn. We have copied his testimony in relation to the written contract which wias executed at his house between himself and John H. Queen and Albert Queen and do not deem it necessary to repeat it here. It is true he testified that the contract which was executed on that occasion was lost; and if it foe conceded that his testimony was sufficient to admit secondary .evidence of the contents of the lost instrument, we think the testimony is too vague and indefinite and that the substance'of the contract is not satisfactorily proved.
“Where such bill of sale is alleged to be lost, and its contents as alleged are denied by the answer of defendant, they should foe substantially proven, where no copy is produced, by a witness who has seen or read the instrument, or is otherwise enabled to speak with some degree of accuracy as to its contents, and identify it as the one executed by the party to be charged.”
It will be noted that Ryburn gave his deposition in May, 1914. He said that the contract in question was executed about twenty years before. The deed from John H. Queen to his son, Albert, was executed in January, 1895. If the contract in question was executed twenty years before Ryburn’s testimony was given it was executed in 1894, prior to the execution of the deed from John H. Queen to his son, Albert. John H. Queen died in December, 1895.
Bill Dodd, who also witnessed the contract, said that he did not remember anything about its contents because it was not read over to him, and that the .contract in question was executed about a year .and a half before old man Queen died. This would also place the execution of the contract at a date earlier than the date of the execution of the deed.
Ryburn also testified that prior to the execution of the deed to Albert Queen he had made a contract with John H. Queen for the purchase of the land and had let the land go back, because he was unable to pay for it. It may be the contract he is testifying to now is the one executed when he purchased the land. In any event, the testimony shows that it was executed before the deed from John H. Queen to Ms son, Albert Queen, was executed. There is notMng in the record tending to show that it was executed contemporaneously with the deed or with reference to it. It may be that prior to the execution of the deed John H. Queen had entered into some kind of written contract with Ms son, Albert, and that later the contract was changed by the execution of the deed in question.
It is true the consideration recited in the deed is $1,000 and it is shown that Albert Queen had no means with which to pay for the land. The record shows, however, that John H. Queen at the time he executed the deed was an old man and wias not able to work. It may be that he intended to provide a home for his wife and himself during their old age and the testimony shows that he lived with his son, Albert, until ¡he died and that Ms widow lived with him for several years thereafter until she died.
The deed was acknowledged before L. E. Hoover, a justice of the peace. The contract about wMch Ryburn testified was acknowledged, he says, before Squire You-man, a justice of the peace. Thus it will be seen, there is nothing to .show that the deed and the contract in question were executed at the same time, or that Albert Queen, the grantee in the deed, subsequently executed a written declaration of trust covering the land embraced in the deed.
The decree will be affirmed.