100 Ark. 370 | Ark. | 1911
(after stating the facts). As to the property-in controversy, appellant contends that it was acquired by the joint earnings of himself and wife, while appellee contends that it was purchased with her own money. This is purely a question of fact, and it could serve no useful purpose to discuss the evidence, which is very conflicting. As to the real estate in the name of appellee, even if appellant purchased and paid for same in part with his own funds, since the deeds were taken in the name of his wife, and not in his own or their joint names, the presumption is that the money of his own thus used was intended by him as a gift to her. The law in such cases will not imply a promise or obligation on her part to refund the money or to divide the property purchased, or to hold the same in trust for him. His conduct will be referable to his duty and affection, rather than to a desire to cover up his property or to any intention on his part to have her hold as a trustee for him. Womack v. Womack, 73 Ark. 281; Ward v. Ward, 36 Ark. 586.
This presumption, however, is not a conclusive one, but may be rebutted by evidence of facts antecedent to or contemporaneous with the conveyances showing that the intention of the husband was to have his wife hold the land in trust for him, and that he did not intend to make her a gift. Chambers v. Michael, 71 Ark. 373. Without commenting upon the evidence, it suffices to say that there is nothing in this record antedating or contemporaneous with the conveyances to appellee sufficient to overcome the presumption which the law raises from the act of a husband taking deeds in the name of his wife. The decree of the court therefore confirming in appellee the title to all the real property in suit in her name is correct.
The decree of the court is also correct in confirming the title of Mary J. McClure. The finding of the chancellor that this land was purchased by appellant with money that belonged to him is not against the clear preponderance of the testimony, though there is a sharp coflict in the evidence on this issue. The testimony on behalf of appellant tends to prove that he sold for $4,600 a house which he had erected on a lot with money that had been accumulated through the joint efforts of himself and wife, and that, while the house was in his wife’s name, and the money for which same was sold was deposited in her name, yet she recognized his right to a part of the money by giving him a check for the sum of $2,000, and that he accepted this as his share of the funds for which the house was sold; that he invested this, his own money, in the land in controversy, taking title in the name of his sister, Mary J. McClure. The testimony on behalf of appellee, - as we have stated, is in direct conflict with this, and is to the effect that the money derived from the sale of the house was all her individual funds, and that she gave the check of $2,000 to appellant to be invested in property for herself. The testimony is so evenly balanced that no one can determine who has the preponderance. • The finding and decree of the chancellor will therefore be treated as persuasive and allowed to stand. Gaty v. Holcomb, 44 Ark. 216; Brown v. Wyandotte & S. E. Ry. Co., 68 Ark. 134; Mooney v. Tyler, 68 Ark. 314; Letchworth v. Vaughan, 77 Ark. 305; Sulek v. McWilliams, 72 Ark. 67. See also Boggianna v. Anderson, 78 Ark. 420.
For the same reason the refusal of the court to grant appellant’s prayer for a division of the personal property mentioned in his answer and cross complaint will not be disturbed.
The judgment will therefore be affirmed.