127 Ark. 186 | Ark. | 1917
(after stating the facts.)
(1-3) I. The court erred in dismissing appellants’ complaint. The court should have cancelled the deed executed 'by the appellants to the appellees, Stovall and Gorman. Stovall and Gorman did not pay any money consideration for the deed, and the legal services- which they agreed to render the appellants in consideration of the deed were never rendered.
The deed from appellants to Stovall and Gorman was executed on the 9th day of September, 1912. The deed from appellants to John W. Aven was executed on the 9th day of June, 1913. It thus appears that a period of nine months elapsed after the deed of appellants to Stovall and Gorman was executed before appellants sold their interests in the land to Aven. During all this time the appellees, Stovall and Gorman, failed to institute suit or to take any steps looking to the recovery of the property belonging to the estate of Emmet Sims, which the appellants as the widow and heirs of Sims were justly entitled to.
Counsel for appellees Stovall and Gorman contend that the failure on their part to institute suit and take the other necessary steps to recover the property of the estate of Emmet Sims for the appellants was because of the failure on the part of the appellants to give appellees Gorman and Stovall their active co-operation. While appellee Gorman testified that the reason they did not institute suit to recover the property was because their clients would not co-operate with them, yet his undisputed testimony further shows that he never asked either Mattie Gladney or Henrietta Franklin, as individuals or jointly, as heirs of Emmet Sims, to sue for the property. Now, the record shows that Gorman and Stovall had made investigations to enable them to ascertain whether the appellants were entitled to the possession of the property. The negress, Lucy Sims, who was living with Emmet Sims at the time of his death, and who remained in possession of the property thereafter, had no interest whatever therein. The testimony shows that Alice Sims was the legitimate wife of Emmet Sims, and that the appellants were his children. Emmet Sims was married to Alice Sims, and although he separated from her and afterwards married Lucy Sims, this latter marriage was bigamous; for it appears that he was never divorced from Alice. After being lawfully married, and never having been divorced, even though Emmet Sims and his wife Alice separated and each thereafter contracted bigamous marriages, Emmet and Alice, nevertheless, were husband and wife at the time of Emmet’s death.
In Evatt v. Miller, 114 Ark. 84, we held: “Where a man and á woman are legally married, the woman continues to be the man’s wife, although she subsequently contracts a bigamous marriage with another man, and upon the death of her lawful husband, the wife is entitled to her rights as his widow. Where a man is already lawfully married and subsequently contracts a bigamous marriage with another woman, upon his death the latter has no rights in, and cannot share, in his estate.” '
HaVing ascertained that Lucy Sims had no interest whatever in the estate of Emmet Sims, it was incumbent upon the appellees Stovall and Gorman to take some steps looking to the recovery of the property for the appellants. It is no justification for a failure to carry out their contract that they claim not to have had the co-operation of their clients when the undisputed evidence shows that so far as the appellants, Henrietta Franklin and Mattie Gladney, were concerned, they did not ask for their co-operation. Even though the widow, Alice Sims, may have failed and refused to co-operate with Gorman and Stovall in an effort to recover the property, this would not justify the latter in failing to make an effort to recover the same on behalf of the children and heirs of Emmet Sims.
Upon the death of Emmet Sims the inheritance was cast upon his heirs. It was their duty to have the dower of the widow laid off and set aside. Kirby’s Digest, sec. 2717.
Stovall and Gorman could have brought suit in the name of the heirs for the recovery of the possession of the property. They do not pretend that they even consulted with the heirs about it. On the contrary, their undisputed evidence shows that they did not do so. Appellants having shown that the deed was executed in consideration of services to be rendered them and that Stovall and Gorman failed to render these services, the burden was cast upon Stovall and Gorman to allege and prove facts that would show that appellants were estopped from claiming such failure of consideration, in avoidance of their deed. Appellees Stovall and Gorman have not set up estoppel against the appellants, and their own undisputed testimony-shows that they have wholly failed to render the services which constituted the only consideration for which the deed was executed.
II. So far as the deed to J. W. Aven is concerned, but little need be said. The deed on its face shows that for a consideration of $200.00 appellants conveyed 158.23 acres of land and five town lots. The testimony shows that this real estate was worth, at the time of the conveyance, about $10,000.00.
The facts discovered by the testimony warrant the conclusion that Aven had ascertained that Alice Sims was exceedingly anxious to dispose, of her interest in the estate of Emmet Sims. These negresses, although they could read and write a little, were nevertheless densely ignorant of their legal rights in the estate of Emmet Sims and of the value of their property. The facts warrant the conclusion that Aven took advantage of this ignorance and induced them to sell their interest to him for a grossly inadequate consideration. It is unbelieveable that appellants, if they had had full knowledge of the fact that they were the owners of the land conveyed by their deed and of its real value, would have ever consented to sell even a half interest in same to Aven for $200.00. The evidence warrants the conclusion that Aven was fully advised of the rights that they had in the property. Their title was not complicated in the least. Aven had the deed prepared and had provided himself with the exact amount which he intended to pay, and which he evidently believed the appellants would accept, before he even discussed the matter of the sale with them.
Without going into detail, it suffices to say that we are convinced, after considering only the competent evidence in the record that Aven, who was an intelligent white man, took advantage of the lack of knowledge on the part of these negresses of their property rights and of the value of their estate to drive upon them a hard and unconscionable bargain. He imposed upon their credulity by making false representations to the effect that “if he had not done this they would have been beat out of all their land; that this much was just the same as a gift to them; that Mr. Gorman had already beat them out of one-half of it, that the property was in a lawsuit and had been for about two months, and that he was doing this to keep Gorman from beating them out of all of it, ” etc.
. (4) This record warrants the conclusion that these ignorant and gullible negro women, when brought under the influence of a shrewd speculator and manipulator would be’like “clay in the hands of the potter.” Aven adroitly used them to consummate his avaricious purpose. The results could not have been otherwise attained. It may be said generally concerning the transactions between appellants and appellees Stovall and Gorman and John W. Aven that there is evidence tending to prove that after Alice Sims came to Arkansas to assist her attorneys to recover the property, the friends of Lucy Sims were threatening to send Alice to the penitentiary for alleged bigamous marriage. These threats had so wrought upon her mind that it was doubtless true, as she told her attorney, that “she would rather live in Mississippi on bread and butter than to own a plantation in Arkansas.” This fact made it difficult, if not impossible, to keep Alice in Arkansas long enough for her to .give her attorneys any assistance in any effort to recover the property, but it furnished no excuse, much less justification, to them for not instituting a suit for that purpose. Beeause¿ as we have seen, she was not a necessary party to such a suit, and her presence was not essential to the preservation of her own rights and the rights of the heirs. After the attorneys had ascertained the rights of their clients, they should have been only the more persistent and diligent in protecting same, in view of the demorilization of Alice Sims. The terrorized state of Alice Sims was such as to make her an easy and shining mark for the cupidity of any one who had a covetous eye on these town lots and rich bottom lands. But for any one to take advantage of her mental attitude to deprive this illiterate negro cook and her children of their property for a mere pittance, is a fraud which a court of chancery should promptly rectify.
III. Since Stovall and Gorman had no rights in the property which they could convey to Aven, it follows that their deeds to him were invalid and should be cancelled. The alleged ehampertous contract between appellants and one Walker can not avail appellees as a defense to this suit. Prosky, et al. v. Clark, et al., 32 Nev. 441, 109 Pac. 793, 35 L. R. A. (N. S.) 512, case note; see Burnes v. Scott, 117 U. S. 582; Courtright v. Burnes, 3 McCrary C. C. 60; Anson on Con. star page 186, note; Pennslyvania Company v. Lombardo, 49 Ohio St. 1.
IV. The decree is therefore reversed and the cause will be remanded with directions to the chancery court to cancel and set aside the conveyances of-appellants to Gorman and Stovall, and Gorman and Stovall to John W. Aven, and also the conveyance of the appellants to John W. Aven, upon reimbursing his estate in the sum of $200.00 with interest at 6% from date of deed, and for such other and further proceedings as may be had according to law and not inconsistent with this opinion.
