Burns v. Burns

• Decision Date: 15 January 1940
• Docket Number: 4-5738
• Citation: 135 S.W.2d 670,199 Ark. 673
• Parties: BURNS v. BURNS
• Court: Arkansas Supreme Court

135 S.W.2d 670

199 Ark. 673

BURNS v. BURNS

4-5738

Supreme Court of Arkansas

January 15, 1940

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

Affirm.

Tom J. Terral, for appellant.

OPINION

HOLT J.

This suit was commenced by appellant, M. L. Burns, against his wife, Mrs. C. E. Burns, Will Woods, and George Shepherd in the Pulaski circuit court on September 30, 1938. The cause was transferred to equity on November 16, 1938, by agreement of the parties.

Appellant's complaint alleged that prior to October 18, 1929, he and appellee, Mrs. C. E. Burns, were the owners of a certain lot in Little Rock, Arkansas, and that on that date they conveyed the property to George W. Shepherd, who in turn conveyed it by warranty deed to Mrs. C. E. Burns for a consideration of $ 300, and that the deed was filed for record on said date.

The complaint further alleged that on October 18, 1929, M. L. Burns entered into a lease with his wife, under the terms of which Mrs. Burns, for a consideration of $ 300, agreed to lease to him 20 feet running east and west and 40 feet running north and south on the southeast corner of the lot for a period of 99 years. That the lessee was to have immediate possession of the leased property, but although he paid the consideration of $ 300 stipulated in the lease that Mrs. Burns refused to deliver possession to appellant and refused to abide by the terms of said lease agreement.

Appellant further alleged that he was fraudulently induced by Mrs. Burns to join in the conveyance to Shepherd and to enter into said lease with Mrs. Burns, "in that said defendant, Mrs. C. E. Burns, induced plaintiff to part with title to his property, and induced plaintiff to pay her $ 300 in cash, knowing that she did not intend to give plaintiff possession of the aforesaid lease, a scheme to cheat and deprive this plaintiff of his property, and same was fraudulently conceived by defendant, Mrs. C. E. Burns, who accepted payment of the aforesaid $ 300 and then refused to carry out her part of said agreement, and she has consistently refused to give possession, and that said acceptance and refusal to give possession constituted a fraud upon this plaintiff perpetrated by Mrs. C. E. Burns with the fraudulent intent of depriving him of his interest in said property."

He further alleged that he was ready and willing to carry out his part of said lease contract; that the conveyance from Shepherd to Mrs. Burns was without consideration, "in that the $ 300 mentioned in said conveyance was not paid by defendant, Mrs. C. E. Burns, to George W. Shepherd, and was never intended to be paid; that the consideration of said warranty deed was in reality an agreement on the part of defendant, Mrs. C. E. Burns, to lease the above described property to this plaintiff, but that the consideration for said agreement and deed has wholly failed."

His prayer was that the deed conveying the lot in question from Shepherd to Mrs. Burns be canceled; that appellee, Woods, be ousted from possession; that possession and title be vested in appellant, and for judgment against Mrs. Burns in the sum of $ 2,000 damages for said broken lease and for costs.

On January 30, 1939, the cause was dismissed as to defendant, George W. Shepherd.

The remaining defendants, Mrs. C. E. Burns and Will Woods (appellees here), filed separate demurrers on the ground that the facts set forth in the complaint were not sufficient to constitute a cause of action.

The court sustained these demurrers, dismissed appellant's complaint for want of equity and found "that plaintiff's complaint upon its face, shows that more than five years has elapsed since the date that plaintiff's cause of action accrued to him, and said cause of action is, therefore, barred by limitation, and the plaintiff shall have and recover nothing from the defendants and each of them."

Appellant says in his brief, "If no allegation of fraud appeared in appellant's complaint, then it is conceded appellant's cause is barred by the five-year statute, assuming for the moment that the five-year statute is applicable. Appellant's whole complaint is predicated upon fraud perpetrated upon him by Mrs. Burns."

This court has many times held that where fraud is relied upon the complaint must state something more than mere conclusions, but the facts relied upon as constituting the fraud must also be clearly set forth in the complaint to justify the court in overruling a demurrer.

As far back as McIlroy v. Buckner, 35 Ark. 555 this court said: "It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts...