Chambers v. Burke

• Decision Date: 18 October 1937
• Docket Number: 4-4754
• Citation: 109 S.W.2d 117,194 Ark. 665
• Parties: CHAMBERS v. BURKE
• Court: Arkansas Supreme Court

109 S.W.2d 117

194 Ark. 665

CHAMBERS v. BURKE

4-4754

Supreme Court of Arkansas

October 18, 1937

Appeal from Union Chancery Court, First Division; Walker Smith Chancellor; affirmed.

Affirmed.

Archie D. Murphy and Coulter & Coulter, for appellant.

Marsh & Marsh and J. S. Brooks, for appellees.

OPINION

BUTLER, J.

Marvin J. Burke, in 1929, became the owner of lots 3 and 4, block 6 of Combs' second addition to the city of El Dorado, Union county, Arkansas, by purchase. At the time of the purchase lot 3 was encumbered by mortgage in the sum of $ 3,000, which was assumed by Burke as a part of the purchase price. The taxes were not paid on these lots for the year 1932 and they were forfeited and sold to the state for the delinquent taxes on June 17, 1933, and, being unredeemed, were purchased from the state by J. M. Chambers which executed to him a deed on June 13, 1936. Within twenty days thereafter, Chambers instituted an action in ejectment against appellees, Marvin J. Burke and Allie Burke, his wife. At that time, Mrs. Allie Burke and her children, all of whom are minors, were living on the property. The receiver for the mortgagee was made a party and filed answer in which he alleged the tax deed was void and moved to transfer to equity and that the deed be canceled.

Various other pleadings were filed, among which was the intervention of Merle Marie Burke, Aubey Jean Burke and Robert Derle Burke by their mother and next friend. It was alleged that all of the interveners were minors at the time of the sale and conveyance to the state and that they now are; that about May, 1933, the property in dispute had been conveyed to them by their father, Marvin J. Burke, which deed had not been placed of record and had been lost or destroyed. They alleged the right to redeem from the tax sale and tendered to Chambers the amount of taxes, penalty and costs for which he had purchased from the state. The cause was transferred to equity and, on the evidence adduced, a decree was rendered sustaining the allegations of the minor interveners, quieting title in them as against the plaintiff, Chambers, and canceling his deed. From that decree plaintiff has appealed.

The appellant contends that the decree should be reversed (1) because the evidence was not sufficient to show the execution of the deed from the father to the children, its delivery, or its loss, and (2) that, even though the deed had been executed as alleged, the right to redeem did not exist because the state's lien for taxes had attached prior to the conveyance.

In support of the first contention, a number of our decisions are cited which affirm the well-recognized rule that the evidence to establish the execution and content of an alleged lost deed must be clear and decisive, and it is contended that the evidence in this case does not meet those requirements. In testing the correctness of appellant's contention, due deference must be given to the conclusion reached by the trial court, which, if not against the preponderance of the evidence, must be approved by us. The evidence relating to the execution of the deed in question and the circumstances which induced it may be thus stated: in the summer of 1932, during the absence of the family, the residence on lot 3 covered by the mortgage was burned. The check covering the amount of the insurance was made to M. J. Burke, the mortgagee, and was delivered to Mrs. Allie Burke. At that time the insurance agent received information that it was the intention of Mr. and Mrs. Burke to convey the property to their children. He advised Mrs. Burke that when this was done it would be well to notify him so that the proper changes might be made in the policies of insurance. He received no notification of any change in ownership, but in the early part of 1933, sometime in the spring, Mr. Burke prepared a warranty deed, naming in it as a consideration "$ 10 and other valuable considerations," by which the property involved was conveyed to the children. He, in company with Mrs. Burke, went to an office building in El Dorado and acknowledged the execution of the deed before a person to whom they were directed as an officer qualified to take acknowledgments of deeds. After the execution and acknowledgment of the deed, it was delivered by Mr. Burke to Mrs. Burke to keep for the children. The deed was not recorded because of the financial condition of the grantors at that time. Mrs. Burke took it home and placed it in a book containing some other papers. She is uncertain as to what particular place the book containing the deed was deposited, but, as she remembered, it was in a dresser drawer. About this time, or shortly thereafter, Mr. Burke left home under rather distressing circumstances, taking with him some of his personal belongings, and when Mrs. Burke made search for the book containing the deed, she was unable to find it. Mr. Burke also made search among his papers in the place to which he had moved with like result.

The circumstances...