Deal v. Deal

• Decision Date: 25 February 1952
• Docket Number: No. 4-9689,4-9689
• Citation: 220 Ark. 134,246 S.W.2d 429
• Parties: DEAL v. DEAL.
• Court: Arkansas Supreme Court

Page 429

246 S.W.2d 429

220 Ark. 134

DEAL v. DEAL.

No. 4-9689.

Supreme Court of Arkansas.

Feb. 25, 1952.

Ovid T. Switzer, Crossett, for appellant.

Y. W. Etheridge, Hamburg, for appellee.

MILLWEE, Justice.

This is a suit by appellee, Alice Deal, to reform a deed to two lots in Hamburg, Arkansas by striking therefrom the name of appellant, A. G. Deal, as joint grantee. A. G. Deal appeals from a decree granting the relief prayed.

The parties formerly lived as husband and wife at Hamburg, Arkansas. Appellee negotiated the purchase of the lots in question from the widow and heirs of C. W. Taylor, deceased, who executed and delivered their deed to appellee, as sole grantee, on February 17, 1942. Appellee made a cash payment of $150 on the purchase price and executed two lien notes of $175 each payable in one and two years, respectively, for the balance of the purchase price.

Appellee testified that at the time of the purchase appellant had gone from home about a year during which time he sent her two checks of $10 each; that she supported herself and their minor children by various jobs, supplemented by aid from the State Welfare Department and certain charitable organizations. She received the $150 which she paid on the purchase of the home from her grandfather's estate. The last payment on the two purchase money notes was made by appellee on December 2, 1942 and she also testified that the notes were paid wholly from her separate earnings.

Appellant, who had been employed in Louisiana, returned to Hamburg in the summer of 1942. On January 18, 1943 the deed of February 17, 1942 was changed by adding the words 'and A. G. Deal' after appellee's name wherever it appeared in the deed, and on the same date the altered deed was placed of record.

On January 16, 1948 appellee filed suit for divorce against appellant in the Ashley Chancery Court on the ground of general indignities. The complaint alleged that the parties were 'owners of real and personal property, and that they have made an agreement as to the disposition of said property, which should be approved by the Court'. In response to the complaint in the divorce action, appellant filed a pleading styled 'Waiver, Answer & Agreement' also dated January 16, 1948, which contains a recital as follows: 'Plaintiff is to have the use of the house and household furniture so long as she conducts herself in a proper manner and so long as she is unmarried, but if she should remarry, or if she should start conducting herself in a manner unbecoming to a lady and a mother, in such a manner that she is placing her reputation in question, then defendant is to take immediate possession of the house, furniture, and children.'

On March 24, 1948 a decree was entered granting appellee a divorce, custody of their seven minor children and support money for the children of not less than $50 per month. The decree also provided that each party should 'have absolutely' certain specified items of personal property. The possession and use of the home and furniture were awarded to appellee as set out in the agreement, supra.

Appellant subsequently remarried and the instant suit was brought by appellee on September 23, 1950. She alleged in her complaint and testified that appellant forced her to have his name added to the deed in January, 1943 against her will and by threatening her life if she refused. She also related other acts of mistreatment and abuse at the hands of appellant about the time the deed was altered.

Appellant alleged in his answer that appellee voluntarily altered the deed and by such action and her failure to assert her claim in the 1948 divorce action she was estopped from claiming absolute title to the property. He also alleged and testified that the lots were bought under their agreement to purchase jointly; that he was working in Louisiana at the time and left the details of the purchase to appellee who had the deed made to herself as sole grantee without his knowledge or consent; that while working in Louisiana he sent part of his wages to appellee which she used to support herself and their children and to pay the two purchase money notes; that in January, 1943 he discovered that his name was not in the deed and discussed the matter with appellee who stated that his name had been omitted by mistake; and that she voluntarily had his name added as joint grantee.

W. C. Woods testified that he worked with appellant in Louisiana for about eight months in 1942 and issued his personal checks to appellant at different times so the latter could send money to appellee. He estimated that such checks totaled more than $200.

The cashier of the bank where the two purchase money notes executed by appellee were paid testified that appellee made all the payments and that none were made by checks of the appellant.

Thus the evidence is in sharp dispute as to whether appellee voluntarily altered the deed and as to whether appellant paid any part of the purchase price. Appellee stated that she paid all taxes and insurance on the property except for one year, while appellant stated that all taxes and insurance were paid by him. No tax receipts were introduced. In January, 1948 appellee also paid a Hamburg bank $77 which represented the balance due on a note for $300 borrowed by appellant and to secure the payment of which the property in controversy had been mortgaged. She also made extensive repairs to the property costing more than $700, part of which had been paid by her daughter and a balance of $300 still owing to FHA at the time of the trial was being paid by a son.

The chancellor found that the legal effect of the answer of appellant was to allege a trust in his favor arising at the time of the purchase from their agreement to purchase the property jointly and his payment of a part of the purchase money. We agree with the court's further finding that appellant failed to establish such trust by that clear, cogent and convincing testimony required in such cases. Appellant paid no purchase money either at the time of or previous to the purchase, and the deed, notes and attendant circumstances tend to support appellee's contention that she paid the entire purchase price.

The chancellor also found that appellee was not estopped to deny appellant's joint interest in the property by alteration of the deed.

Appellant earnestly insists that appellee failed to sustain her claim of duress in the alteration of the deed; that her claim of absolute title to the property was disposed of, or should have been adjudicated, in the 1948 divorce suit; and that by her conduct and delay she is estopped from contesting appellant's interest as joint grantee in the deed. In support of these contentions appellant relies on the cases of Simmons v. Simmons, 203 Ark. 566, 158 S.W.2d 42, and Page v. Woodson, 211 Ark. 289, 200...