Bogard v. Powell, 4-7809.
| Decision Date | 04 February 1946 |
| Docket Number | No. 4-7809.,4-7809. |
| Parties | BOGARD et al. v. POWELL et al. |
| Court | Arkansas Supreme Court |
Cecil E. Johnson, Jr. and C.E. Johnson, both of Ashdown, and Abe Collins, of DeQueen, for appellants.
Charles A. Maze, of Clarksville, and Shaver, Stewart & Jones, of Texarkana, for appellees.
Dr. John T. Bogard died August 20, 1943. He left surviving, his widow, Effie E. Bogard, one son, John T. Bogard, Jr., and two daughters, Mary Bogard Powell and Jewell Bogard Hopson. The present suit was brought by the two daughters, appellees, against their mother, Effie E. Bogard, and their brother, John T. Bogard, Jr., and Rose Marie Bogard, John Jr.'s wife.
September 11, 1933, Dr. Bogard and his wife, Effie E. Bogard, executed a warranty deed to a valuable 161 acre pecan orchard in Little River County to their son, John T. Bogard, Jr. This deed was kept in Dr. Bogard's possession until May 8, 1937, when he delivered it to his son, John, Jr., who had it recorded May 10, 1937. At the same time that Dr. Bogard delivered this deed to his son, John T. Bogard, Jr., delivered a warranty deed to his father, Dr. Bogard, in which he, John, Jr., and his wife reconveyed the property to Dr. Bogard and Effie E. Bogard, his wife, as tenants by the entirety, and this latter deed was recorded by Dr. Bogard on January 6, 1939. On May 4, 1937, Dr. Bogard recorded another deed dated November 14, 1934 in Polk County, in which deed Dr. Bogard and his wife conveyed to his son, John T. Bogard, Jr., and his wife four lots in Mena, Arkansas.
On November 26, 1936, a collision occurred between a car driven by Dr. Bogard's driver and a car operated by Miss Martha Pride. In February, 1937, Miss Pride brought a suit in tort in Polk County, Arkansas, against Dr. Bogard to recover damages, and in April following, recovered a judgment in the amount of $200. In October, 1937, Dr. Bogard filed his schedule claiming exemptions in the amount of $390 and thereafter an execution against him was returned nulla bona. In 1938, Miss Pride sued to cancel the deed to the Mena lots, supra, as having been executed to defeat the collection of her judgment. Following the institution of this suit and before a decree was entered, on May 18, 1938, Dr. Bogard satisfied Miss Pride's judgment in full.
August 18, 1944, the two daughters, appellees, filed the present suit against their mother and brother, in which they alleged that the deed of September 11, 1933 from their father and mother to their brother, John T. Bogard, Jr., "was made for the sole purpose of defrauding his creditors, or apparent creditors, or with intent to do so; that it was made for the more specific purpose of defrauding the judgment creditor (Miss Pride) in the damage suit above referred to," and that the deed from John T. Bogard, Jr., to his father and mother by mistake created an estate in the entirety in Dr. Bogard and Effie E. Bogard. They prayed that the deed, supra, of John T. Bogard, Jr., and his wife to Dr. Bogard and wife, Effie E. Bogard, dated May 8, 1937 and recorded January 6, 1939, "be reformed to exclude the wife of John T. Bogard, Sr., as grantee, and title to the lands above described be vested in the estate of John T. Bogard, Sr., deceased." They further alleged that the deed of Dr. Bogard and wife to their son, John T. Bogard, Jr., dated September 11, 1933, and the deed of John T. Bogard, Jr., to reconvey to his father and mother as tenants by the entirety on May 8, 1937, were executed in fraud of Miss Pride, a creditor, and that these deeds were voidable, and prayed that they be canceled as fraudulent.
Appellants' answer, in addition to a general denial, affirmatively pleaded ratification and estoppel. The trial court found all issues in favor of appellees, and more specifically (quoting from the decree), "that the deed from John T. Bogard, Sr., and his wife, Effie E. Bogard, dated September 11, 1933, conveying fractional Northwest Quarter (Frl. N.W. ¼) of Section 19, Township 13 South, Range 31 West, in Little River County, Arkansas, to John T. Bogard, Jr., recorded on the 10th day of May, 1937, * * * and that the deed from John T. Bogard, Jr., and his wife, Rose Marie Bogard, conveying said land to John T. Bogard, Sr., and his wife, Effie E. Bogard, recorded on the 6th day of January, 1939, * * * and that the deed from said Effie E. Bogard, dated in or about 1944, conveying said land to John T. Bogard, Jr., recorded in deeds records of said Little River County, Arkansas, be and each of said three deeds is hereby cancelled, set aside and held for naught, and that the title to said: Fractional Northwest Quarter (Frl. NW ¼) of Section Nineteen (19), Township Thirteen (13) South, Range Thirty-one (31) West, containing 161.01 acres in Little River County, Arkansas, be and the same hereby is vested in fee simple absolute in the heirs at law of Dr. John T. Bogard, deceased, namely in Mary Bogard Powell, Jewell Bogard Hopson and John T. Bogard, Jr., as tenants in common, unencumbered by any claim of title, dower, homestead or devise which may have been or might be made or set up by or for said Effie E. Bogard, her representatives, heirs or assigns."
This appeal followed.
Appellees contended in the trial court below that the deed of conveyance dated September 11, 1933 by Dr. Bogard to his son, John, Jr., to the 161 acre pecan orchard here and the deed by which the son reconveyed the property to his father and mother, Dr. Bogard and Effie E. Bogard, as tenants by the entirety dated May 8, 1937 were executed in fraud of potential creditors and should be canceled. They further contended that as heirs of Dr. Bogard, they had a right under the provisions of Section 69 of Pope's Digest to bring the present suit to cancel these deeds for their...
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