84 Ark. 37 | Ark. | 1907
Lead Opinion
(after stating the facts.) The contention of appellees that Sallie Whitson bought the land from the owner, W. C. Gregson, and paid for same with her own means, has no evidence in the record to support it. As to whether or not the land in controversy was purchased by John Whitson alone, or by him and his wife jointly, is purely a question of fact, Witnesses for appellant testified that Whitson told them, soon after he had taken possession of the land in controversy, that he had- bought the same and was to pay $600 for it in installments, The best evidence to support the contention of appellant is that of the witness Taylor, who said that he thought that he drew up the papers concerning the purchase of the land, but was not sure about it, and did not state it as a fact. He was the attorney of Gregson, the owner, and transacted a great deal of business for him’. He says that Gregson and Whitson talked over with him the matter of the sale .of the land by Gregson to Whitson; says that the consideration was $600, and that the first payment was made in live stock. He did not write the deed, but thought he wrote the bond, for title and the notes, for the balance of the purchase money. He says that there was nothing said by either Gregson or Whitson that went to show that Sallie Whit-son was a party to the contract. There were only two parties to the contract, and they were John Whitson and W. C. Greg-son. That one of the reasons for his definite recollection was that he wanted ,to buy the land himself, and before he could get in shape to buy it Whitson' bought it. The above, with proof to the effect that Sallie Whitson owned no property at the time she intermarried with John Whitson, is the evidence upon which appellant relies to have the deed which was executed to Sallie Richardson, formerly Whitson, cancelled. Appellees, to support their contention that the sale of the land was made to John Whitson and his wife, Sallie, jointly, had the testimony of Mrs. Ingram, who was appellant’s witness, to the effect that she was once ’the wife of Gregson, that her husband sold the land in controversy to John Whitson and Sallie Whitson, that to the best of her recollection there were three payments, that she thought John and Sallie Whitson gave their notes .for the deferred payments. After John Whitson died, Sallie, who had then married another man, paid the last of the purchase' money, and Gregson and witness, his wife, made her a deed to the land in controversy. Appellee Ed Richardson testified that he had seen and read a bond for title, or an agreement for the sale of the land in controversy, made' by W. C. Gregson and S. E. Greg-son to Sallie and John Whitson, and also two notes of two hundred each, executed by Sallie Whitson and John Whitson to Gregson for part of the purchase money; that these papers were in the possession of his wife, who was formerly Sallie Whitson, and that he and his wife, not considering them of any value, destroyed them. In view of this testimony, we can not say that the finding of the chancellor was clearly against the preponderance 'of the evidence. In 'the sharp conflict of the testimony and the difficulty of ascertaining the real facts by a preponderance of the testimony, we shall treat the finding of the chancellor as persuasive, and sustain it.
The testimony on behalf of appellees did not tend to show that” the land was conveyed to Sallie Whitson solely, as was set up in her answer. But’the testimony was taken, and without objection was directed to the issue of whether or not the land was conveyed to her and her husband, Whitson, jointly. The court below so treated the issue as thus joined on the proof, and after judgment we will treat the answer as amended to correspond, with the proof. Sorrels v. Self, 43 Ark. 451; Railway Co. v. Triplett, 54 Ark. 289; Texarkana Gas, etc., Co. v. Orr, 59 Ark. 215.
Did the bond for title or contract of sale convey to John Whitson and his wife an estate in entirety? In Strauss v. White 66 Ark. 167-170, this court said: “It has been uniformly held by this court that when the owner sells land, takes the notes of the vendee for the purchase money, and -executes to him a bond for title, the effect of the contract is to create a mortgage in favor of the vendor upon the land to secure the purchase money, subject to all the essential incidents of a mortgage, as effectually as if the vendor had conveyed the land by an absolute deed to the vendee and taken a mortgage back to secure the purchase money. * * * It follows, then, * * * that the vendee, in analogy to the mortgagor, is the owner of an equity of redemption, and that his is the real and beneficial estate which is descendible by inheritance, devisable by will, and alienable by deed precisely as if it were an absolute estate of inheritance at law, subject, of course, to the rights of the vendor.” (Citing and quoting previous opinions.)
One who holds bond for title from the holder of the legal title has an equitable estate in the land so conveyed to him. In equity he is the real owner, but subject to have his interest defeated or taken away if he fails to comply with the conditions of the bond. Norman v. Pugh, 75 Ark. 52. Here it is not pretended that the conditions of the bond were not fulfilled by Whitson and his wife. The deed to her after the death of her husband evidenced the conveyance of the entire estate, which was hers by right of -survivorship at his death. “If an estate in land be given to the husband and wife, or a joint purchase be made by them, during coverture, they are not properly joint tenants, nor tenants in common, for they are but one person in law, and can not take by moieties. They are both seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole. This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee, for life or for years.” 2 Kent’s Com. 132. See Branch v. Polk, 61 Ark. 388; Shaw v. Hearsey, 5 Mass. 521.
It follows that the decree of the court denying the relief prayed by appellants was correct, and the same is affirmed.
Dissenting Opinion
(dissenting.) This evidence, taken as a whole, convinced me that the claim that the deed in question was jointly made to the husband and wife was an afterthought, and is not sustained by a preponderance of the evidence.
