Vaughan v. Chicago, Rock Island & Pacific Railway Co.

120 Ark. 37 | Ark. | 1915

Hart, J.,

(after stating the facts). It will be remembered that the first deed executed by Vaughan to the railway company was on the 24th day of February, 1903. This deed was in consideration that the railway company should extend its line of road along the river route as surveyed, and that it would build a depot near the east end of Buena Vista Street. This deed was executed to Judge Willeford as trustee for the railroad company, and was placed in the hands of a bank at Des Arc to be delivered to the railway company upon the performance of the conditions named in the deed. Vaughan testified that the deed executed by him in 1905 was upon the same conditions, and that it was their intention that the deed should be held-in escrow. It is the contention cf counsel for the plaintiff that although the deed was delivered to Judge Thweatt, who was the agent of the railway company, that in procuring the deed, Judge Thweatt was deemed to occupy the .relation of a third party to the transaction, and that the deed was to be held in escrow.

Judge Willeford, to a certain extent, corroborates the testimony of the plaintiff, but stated that owing to his advanced age and ill health, he does not remember the transaction very clearly, but states that his recollection is that the deed was executed upon the same conditions as the first deed, but that it was never delivered to him, and that he does not know what was done with it after it was executed.

Judge Thweatt acted as agent for the railroad company in procuring the deed in 1905. He says that the deed was delivered to him as agent for the railroad company; that no conditions were written into the deed, and that nothing was said at the time about the erection of a depot at the east end of Buena Vista Street; that the railroad company had already extended its line along the river route; and that the deed was filed for record by the railroad company.

(1) This second deed does not appear in the record, but we think it may be taken as certain that no conditions were written in it as in the first deed, because if such had been the case, the plaintiff, no doubt, would have introduced it in evidence, for, the deed having been delivered to the railway company and filed for record by it, the burden of proof was upon the plaintiff to show that it had been wrongfully delivered. The deed was signed, acknowledged and delivered to the agent of the railway company,, and by it filed for record. This raises a presumption of delivery to the railway company. Graham v. Suddeth, 97 Ark. 283.

(2) One of the principal conditions imposed by the first deed, namely, that the road should be extended along the river route, had already been performed by the railway company. When we consider this circumstance, in connection with the fact that no conditions were written in the deed, as was the case when the first deed was executed, and that the second deed was'not delivered to a third party to- be held' until the conditions were per-' formed, and the positive testimony of Judge Thweatt that no conditions were written in the deed, and that nothing was said about the location of the depot, we are of the opinion that it can not be said that the finding of the chancellor that the deed was delivered to the railway company, and that the title to the property in question vested in it, is against the preponderance of the evidence.

It is the settled .rule of this court that findings of fact made by a chancellor will not be disturbed on appeal unless against the clear preponderance of the evidence. Tested by this rule, we are unwilling to say that the findings of fact made by the chancellor are against the clear preponderance of the evidence, and the decree will, therefore, ¡be affirmed.

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