Webb v. Nease

• Citation: 49 S.W. 1081,66 Ark. 155
• Parties: WEBB v. NEASE
• Decision Date: 28 January 1899
• Court: Supreme Court of Arkansas

49 S.W. 1081

66 Ark. 155

WEBB v. NEASE

Supreme Court of Arkansas

January 28, 1899

Appeal from Pope Circuit Court in Chancery DAN. B. GRANGER, Special Judge.

STATEMENT BY THE COURT.

Woodford C. Webb died in 1882, leaving surviving him his wife, M. P Webb, and two sons, Woodford C. Webb, Jr., and T. J. Webb. He owned at time of his death 360 acres of land, a part of which was his homestead. The two sons coming of age, they and their mother, M. P. Webb, entered into the following agreement for a division of the land:

"Whereas Woodford C. Webb having died on or about the day of , 1882 leaving no will or other disposition of his lands, to-wit The southeast 1/4 of section 2, township 6 north, range 18 west, and the south 1/2 of the east of the northwest 1/4, section 11, township 6 north, range 18 west, containing in all 360 acres, more or less, situated in Pope county, Arkansas. Therefore, between us, the undersigned lawful heirs of the said Woodford C. Webb, this agreement is mutually made and entered into, to-wit. By and between Mrs. M. P. Webb, widow of the. said Woodford C. Webb, deceased, and T. J. Webb and W. C. Webb, Jr., sons of the said Woodford C. Webb, deceased, for and in consideration of mutual friendship and affection, as widow and sons of said deceased, for the fair, just and equitable division of the lands aforesaid; that is to say, it is hereby agreed and stipulated that the said W. C. Webb, Jr., shall take, as his part or share of the said lands, the southeast 1/4 of section 2, township 6 north, range 18 west, being 160 acres, more or less. And that the said M. P. Webb and T. J. Webb shall release, relinquish, and quitclaim all their right, title and interest in and to the said lands to the said W. C. Webb, Jr. And that the said W. C. Webb, Jr., in consideration aforesaid, and also of the relinquishment of interest as aforesaid in the last described tract of land, hereby agrees to relinquish and quitclaim to the said M. P. Webb and T. J. Webb all of his interest in and to the northeast 1/4 and the south 1/2 of the northwest 1/4 of section 11, township 6 north, range 18 west, being 200 acres, more or less. It is further agreed and hereby ratified that the said parties hereto shall each receive, have and enjoy the quiet and peaceable possession of their separate and respective lands, as herein agreed to be divided, free and relieved from the claims of the other party or parties, and that the one shall in no manner enter upon, use, cultivate or otherwise molest the other in such possession. In witness whereof we hereunto set our signatures this 9th day of January, 1883. Mrs. M. P. (her mark) Webb, T. J. Webb, W. C. Webb."

In pursuance of this agreement, Mrs. Webb and T. J. Webb executed a deed conveying to W. C. Webb all their right, title and interest in the 160 acres mentioned, and he, on his part, executed and delivered to them the following deed: "Know all men by these presents, that I, Woodford C. Webb, of the county of Pope and state of Arkansas, for and in consideration of the sum of one dollar to me in hand paid by Mrs. M. P. Webb and Thomas J. Webb, the receipt of which is hereby acknowledged, and for the further consideration of the release to me by quitclaim deed, by said Mrs. M. P. Webb and T. J. Webb, of their entire right, title, and interest and claim in and to a certain tract or parcel of land described as follows: The northeast 1/4 of section 2, township 6 north, range 18 west, containing one hundred and sixty acres, more or less, in Pope county, Arkansas, as will more specifically appear from articles of agreement for partition of certain lands therein described, entered into the 9th day of January, 1883, by, and between Mrs. M. P. Webb, Thomas J. Webb and Woodford C. Webb, I do hereby grant, sell, convey and quitclaim unto the said Mrs. M. P. Webb and Thomas J. Webb, and unto their heirs and assigns forever, the following lands lying in the county of Pope and state of Arkansas, to-wit: The southeast 1/4 and the south of the east 1/2 of the northwest 1/4 of section 11, township 6 north, range 18 west, containing 200 acres, more or less. To have and to hold the same unto the said Mrs. M. P. Webb and Thomas J. Webb, and unto their heirs and assigns, forever, with all appurtenances thereunto belonging. Witness my hand and seal this 9th day of January, 1883. W. C. WEBB."

Soon after the execution of this deed, Mrs. Webb and T. J. Webb, by an oral agreement, divided their portion of the land, each of them taking about one hundred acres, and they each continued to hold and occupy the portion thus allotted until the death of Mrs. Webb, which occurred in 1896. Mrs. Webb, at the time she married Woodford C. Webb, was a widow, and had three children by her former marriage. One of them, W. S. Nease, she, by a will duly executed, made the residuary devisee of her estate; and under that will he, after her death, claimed the portion of the land above mentioned that had been allotted to her. The appellant, T. J. Webb, brought this action to correct the deed of W. C. Webb to himself and mother, so as to show that the words of inheritance used in said deed did nor apply to her portion of the land. The appellee, W. S. Nease, denied his right to any relief, claimed the land under the will of his mother, and asked that his title be quieted. The chancellor found in favor of Nease, and rendered a decree quieting his title to the land, from which decree an appeal was taken.

Decree reversed and remanded.

Jeff. Davis and J. G. Wallace, for appellant.

The declarations of the parties at or about the time of partition were admissible to show their intentions and their understanding of the contract. 1 Gr. Ev. § 109; 55 Ark. 75; 20 Ark. 597. Mistakes of law are sometimes relieved against in equity. Story, Eq. Jur. 137, 138. Unintentional omissions or insertions are mistakes of fact. 11 L. R. A. 670. The mistake in this case was one of fact, and parol evidence was admissible to show it. 1 Am. Dec. 58; ib. 24; 26 Am. Dec. , 390; 60 Ark. 304; 50 Ark. 179; 28 Ark. 372; 31 Ark. 252; 33 Ark. 119; 5 Am. Dec. 701; 13 Ark. 593; 5 Am. Dec. 610. The nature of the subject-matter must be considered in construing the contract. 15 Ark. 549. The court erred in applying to this transaction the rules for construing a deed of bargain and sale. Deeds of partition do not fix title. 42 Am. Dec. 210; Lawson, Rights, etc., § 2739; 49 Ark. 104; 47 Ark. 235; 40 id. 155; 44 id. 334. The intention of the parties is shown by what they have done under the deed. 46 Ark. 130; 52 Ark. 75; 55 Ark. 417. Wherever a confidential relation exists in any transaction between the parties whereby the superior obtains any benefit, the presumption of indue influence arises, and must be rebutted. 21 Am. St. Rep. 101. The rule applies, also, to transactions occurring shortly after the termination of the relation. 25 Am. Rep. 718; 30 ib. 577; 1 Am. St. Rep. 84. The widow having a homestead of her own, she was not entitled to any in her husband's lands. 51 Ark. 432; 45 Ark. 343.

J. F. Sellers and J. T. Bullock, for appellee.

The statements of the parties, made either before, at the time or afterwards, cannot be heard to alter or vary the contract. 13 Ark. 125; 15 Ark. 453; 16 Ark. 519; 21 Ark. 69. The agreement and deeds must be construed together. 18 Ark. 65. The acts of the parties under the instrument show its true intention. 5 Laws. Rights, etc. § 2229; Devlin, Deeds, §§ 836-840. To justify a reformation on the ground of mistake, the mistake must be one of fact (and not of law), and mutual. 1 Am. & Eng. Dec. Eq. 232. A mistake as to the legal effect of the word "heirs" is a mistake of law, and is not a ground for reformation. 11 L. R. A. 674; 1 Am. & Eng. Dec. Eq. 232. Family arrangements as to property are to be upheld by the courts. 1 Ch. Gen. Pr. 67; 7 Am. & Eng. Enc. Law, 808; 1 Story, Eq. 132; 23 S.W. 78; 15 Ark. 276. No exceptions were saved to any ruling of the court, and this appeal should be dismissed. Sand. & H. Dig. § 5844 et seq. The order overruling the ...