Broomfield v. Broomfield

• Decision Date: 17 April 1967
• Docket Number: No. 5--4154,5--4154
• Citation: 242 Ark. 355,413 S.W.2d 657
• Parties: Floyd BROOMFIELD and Nancy Broomfield et al., Appellants, v. E. L. BROOMFIELD and Ella May Broomfield et al., Appellees.
• Court: Arkansas Supreme Court

Page 657

413 S.W.2d 657

242 Ark. 355

Floyd BROOMFIELD and Nancy Broomfield et al., Appellants, v. E. L. BROOMFIELD and Ella May Broomfield et al., Appellees.

No. 5--4154.

Supreme Court of Arkansas.

April 17, 1967.

Shaw & Shaw, Mena, for appellants.

Shaver, Tackett & Jones, Texarkana, for appellees.

FOGLEMAN, Justice.

Appellants are two sons of Millard W. Broomfield joined by their respective wives. Appellees are another son, the son's wife and daughter, and the only daughter of the decedent. ¹ Millard W. Broomfield died intestate on January 1, 1964 at the age of 85 years. This litigation commenced as a suit by appellants and other heirs with partition of seventy acres of land ² being a part of the relief sought. This land was admittedly once owned by the decedent. Appellants contend that he owned the lands at the time of his death. Appellees ask confirmation of title in E. L. Broomfield and his wife and daughter, claiming that they are the owners of the tract by virtue of conveyance to them by a warranty deed signed by M. W. Broomfield and bearing date of September 29, 1952. They say that this deed was delivered to appellee E. L. Broomfield in June, 1963, at the home of the decedent. Appellants contend that this deed was without consideration and never delivered by the decedent, and that he never intended to deliver it. They further contend that possession thereof was attained by the grantees by fraudulent and unlawful means. On disputed evidence, by a margin which he characterized as 'razor-thin', the chancellor found that the weight of the evidence supported a finding that the deed was delivered by the decedent in his lifetime. A review of some of the evidence is necessary to the determination of this appeal on trial de novo.

It is undisputed that Millard W. Broomfield lived on the property for many years and continued to reside on the land in question and pay the taxes thereon until his death. The 1962 taxes were paid on September 19, 1963. The deed was not recorded until January 31, 1964. The office manager for the Little River County Agricultural Stabilization and Conservation Office (ASC) for fifteen years testified that the decedent made applications for financial assistance in carrying out ASC farm programs. Two of these applications were signed by the decedent as owner in 1963, one in April and one in July. The records of the office showed that Millard W. Broomfield was the owner-operator of the farm. Appellees admit that the decedent carried on these transactions in this way for more than ten years prior to his death and do not contend that he ever relinquished control of the land during his lifetime. Appellee E. L. Broomfield seeks to explain this by saying that he retained a life estate in the property in his agreement with the E. L. Broomfield family. The deed contains no reservation of a life estate.

Ernie Crow, a witness for whose credibility both E. L. Broomfield and his counsel vouch, testified that he became interested in purchasing the farm in July, 1963. Upon inquiry of Millard W. Broomfield, he was told that he could buy the land for $9,000.00 and the cattle for $3,000.00. Broomfield said he would make a warranty deed to the place. Crow did not follow up because he didn't like the location and didn't think the house was good enough for the price. Appellee E. L. Broomfield tried to explain this by saying:

'He seemed to be just more or less seeing if he could get an offer of what his property was worth more than anything because he didn't sell it, didn't follow up the sale.'

E. L. Broomfield testified that his father had the deed prepared and that he, his wife and daughter agreed to take care of the elder Broomfield, but the father was to do anything he wished with the farm in his lifetime--that he was to do what he pleased with the farm and handle it as he pleased. The agreement with his father was to become effective upon the latter's death. He said that no one but he and his father were present when the deed was delivered in June, 1963, after his father had been to a doctor and thought he would not get well. His father told him not to record the deed until he passed away, and he agreed. He claims the deed, before delivery, was clipped to some papers on the wall in his father's room with a clothespin, but presumed that he kept his other valuable papers in his trunk. He told no one except his wife about the delivery of the deed, feeling that no one else should know of it. If his father had asked him for the deed back, he would have given it to him.

The only evidence of delivery of the deed is the testimony of E. L. Broomfield himself. He seeks to excuse the nonappearance of his wife, a party to the suit, who he said knew he had the deed in his possession, by saying that she had been sick for two days. The record does not reflect any effort to continue the case until she was able to testify, to give her deposition or otherwise offer her testimony, although the chancellor's written memorandum opinion shows that the parties, the attorneys, the judge and the court reporter went past the E. L. Broomfield residence to take the testimony of another witness. The failure of a party to testify in his own behalf is a suspicious circumstance against him when material facts within his own knowledge are charged against him in the pleadings and evidence. Felton v. Leigh, 48 Ark. 498, 3 S.W. 638. Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts. Fordyce v. McCants, 55 Ark. 384, 18 S.W. 371. Where the parties have it within their power to explain suspicious circumstances connected with a conveyance, the court trying the case may regard their failure to do so as a circumstance against them. Smith v. Wheat, 183 Ark. 169, 35 S.W.2d 335. See also, Board of Commissioners of S. I. Dist. No. 359 v. City of Little Rock, 190 Ark. 27, 76 S.W.2d 667. The unexplained failure of a party to produce a witness with special knowledge of a transaction, if within the power of the party to do so, raises the presumption that he would testify against the party. Rutherford v. Casey, 190 Ark. 79, 77 S.W.2d 58; Jones v. Jones, 227 Ark. 836, 301 S.W.2d 737. Other cases hold that an inference follows that the testimony would have been unfavorable. See, e.g., National Life Company v. Brennecke, 195 Ark. 1088, 115 S.W.2d 855. At any rate, it does not satisfactorily appear that the testimony of Ella May Broomfield could not have been obtained, so this factor weighs heavily against appellees in determining where the preponderance of the evidence lies.

As against the uncorroborated testimony of E. L. Broomfield, a vitally interested party, there is other testimony which, together with the acts of the decedent inconsistent with a delivery of the deed, seems to preponderate. Both Floyd and Wade Broomfield testified about the interest of the former's son in buying the land in November, 1963, and the statements of the decedent with reference to such a sale. Both of them and the county welfare director testified that the father had made statements that if he gave anyone a deed to the place they would run him off. The statement to Wade was said to have been made while he was living with his father in 1963, up until October. According to Wade, his father kept his deeds, papers and money in a trunk. This trunk was opened in the presence of most of the family by J....