120 Ark. 37 | Ark. | 1915
(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.
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.