Dodds v. Dodds, 5--4828
| Decision Date | 10 March 1969 |
| Docket Number | No. 5--4828,5--4828 |
| Citation | 246 Ark. 313,438 S.W.2d 54 |
| Parties | John A. DODDS, Appellant, v. James E. DODDS et al., Appellees. |
| Court | Arkansas Supreme Court |
Charles E. Yingling, Jr., and Comer and Boyett, Jr., Searcy, for appellant.
Martin, Dodds, Kidd, Hendricks & Ryan, Little Rock, for appellees.
This is a partition suit filed by the appellant, John A. Dodds, as one of four tenants in common. After an extended hearing the chancellor entered a decree which first adjusted the accounts among the four owners and then ordered a sale of the property, with the proceeds to be divided equally after the various debits and credits had first been taken care of. The appellant does not question the order of sale, but he does insist that the court should have allowed him more money than it did for his improvements and maintenance expenses.
The principal tract, a 143-acre farm in White county, was formerly the homestead of J. B. Dodds, Sr., and his wife, Mattie Dodds. At Mr. Dodds' death in 1939 title passed to his widow as the surviving tenant by the entirety. Mrs. Dodds occupied the land with her son John, the plaintiff, until her death in 1962. The property was then inherited by her four sons, John, James, W. P., and J. B., Jr. In 1964 J. B. Dodds, Jr., died testate, leaving all his property to his widow, the appellee Loukate Dodds, who is now the fourth tenant in common. A second tract of 105.96 acres was purchased in 1943 and is also owned by the three surviving Dodds brothers and their sister-in-law.
At the outset the appellees insist that the decree should be affirmed for the reason that the appellant has accepted certain benefits under it and is therefore not in a position to question it. The motion appears to be well founded, but the decree may also be affirmed on the merits. We prefer the latter course.
Upon the issues still in dispute the testimony at the trial was in such conflict that the predominant question was that of credibility. Many of the contradictions were between W. P. Dodds on the one hand and either John or James on the other. Where the sole issue is that of credibility as between interested parties, our practice is to abide by the chancellor's judgment in the matter. Souter v. Witt, 87 Ark. 593, 113 S.W. 800, 128 Am.St.Rep. 40 (1908).
Moreover, the appellant, as the plaintiff in the trial court, had the burden of proof. In some respects his testimony is inherently lacking in persuasiveness. He described expenditures that were made within three or four years before the trial and that involved thousands and thousands of dollars. Yet, even with respect to such recent outlays of substantial sums he was unable in most instances to produce supporting proof, either in the form of corroborating testimony or in the form of checks, receipts, or other documentary evidence. Nor did he satisfactorily explain the source of the funds that he claimed to have spent, other than saying that he had been 'gypsy trading,' which he described as the buying of farm equipment in Arkansas for the purpose of selling it in other states. Again, no records were...
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