Dopp v. Sugarloaf Min. Co., 85-98

• Decision Date: 13 January 1986
• Docket Number: No. 85-98,85-98
• Citation: 288 Ark. 18,702 S.W.2d 393
• Parties: Lula Anna DOPP, Individually and as Trustee for Margaret T. Piper; Margaret T. Piper, Individually; and Lula M. Hoover, Appellants, v. SUGARLOAF MINING COMPANY, an Arkansas Corporation; Spencer Bovard, Individually and as Administrator of the Estate of Patricia Ann Bovard; et al., Appellees.
• Court: Arkansas Supreme Court

Page 393

702 S.W.2d 393

288 Ark. 18

Lula Anna DOPP, Individually and as Trustee for Margaret T Piper; Margaret T. Piper, Individually; and Lula M. Hoover, Appellants, v. SUGARLOAF MINING COMPANY, an Arkansas Corporation; Spencer Bovard, Individually and as Administrator of the Estate of Patricia Ann Bovard; et al., Appellees.

No. 85-98.

Supreme Court of Arkansas.

Jan. 13, 1986.

Hardin, Jesson & Dawson by Betsy Hall, Fort Smith, for appellants.

Harper, Young, Smith & Maurras by Robert Y. Cohen, II, Fort Smith, for appellees.

HAYS, Justice.

This case concerns the validity of a 1946 declaration of trust which the appellants claim is either a forgery or was obtained by fraud. The disputed instrument, which we will refer to as the Bovard trust, affects the ownership of an undivided one-third interest in 2,883 acres in Sebastian County, Arkansas, containing valuable coal deposits. The chancellor upheld the Bovard trust, but we must reverse that ruling.

Appellee, Spencer Bovard, is the surviving spouse of Dorothy Bovard, who died intestate in 1965. Appellants, Lula Anna Hoover Dopp and Lula May Hoover Deleon, are the widow and daughter of John A. Hoover, who died intestate in 1948. Appellants are the undisputed owners by descent of an undivided two-thirds of the Sebastian County lands. This litigation involves the remaining one-third.

In August, 1946, John A. Hoover bought the entire tract for $35,000 from the First National Bank of Ft. Smith, trustee of the Northwestern Coal and Mortgage Company, Inc. On June 10, 1947 Hoover and his wife executed an agreement with Margaret T. Piper reciting that the three of them had acquired the property at a cost of $37,500, purchase price and expenses; that Margaret Piper had given John Hoover $12,500 and the Hoovers had paid the balance in cash and by a loan of $11,000 from the First National Bank of Ft. Smith, secured by a mortgage on the property. Under the agreement Mrs. Piper would not be responsible for any part of the $11,000 note and mortgage and because she did not want her interest to appear of record, the Hoovers were to hold the property in trust for her. The agreement provided that at the death of Mrs. Piper her interest would terminate.

The Bovard trust purportedly bears the signature of John Hoover, dated November 6, 1946, and recites that Hoover holds title to the land in trust for himself, Margaret Piper and Dorothy Bovard, the wife of Spencer Bovard. The Bovard trust makes no mention of Lula A. Hoover, nor of the fact that Margaret Piper's interest is for life only, nor that she did not want her interest to appear of record. It is undisputed that Mr. Guy Green, an attorney in Kansas City representing John Hoover, prepared the Piper trust. Spencer Bovard contends that Green prepared the Bovard trust as well. The Piper trust was recorded on February 19, 1948, the Bovard trust on May 7, 1948.

Proceedings Below

The current litigation began in 1981 when Sugarloaf Mining Company filed this interpleader of coal royalties. Named as defendants were Lula Anna Hoover Dopp, Lula May Hoover Deleon, Spencer Bovard, Margaret T. Piper, James H. Anderson, a lawyer hired by Spencer and Dorothy Bovard in 1963 to pursue their claim, and Marie Nugent, the widow of Anthony P. Nugent, Sr. Mr. Nugent was also hired by the Bovards in association with Mr. Anderson. The Bovards had contracted with Anderson and Nugent for one-half of any recovery and had given them a mineral deed conveying one-half of any minerals recovered from the lands.

By various cross-pleadings the issues were joined. Mrs. Dopp and Mrs. Deleon relied on the Piper trust, claiming the Bovard trust was a forgery or was obtained by fraud. Spencer Bovard relied on the Bovard trust and alleged that Anderson and Nugent had failed to pursue the Bovard claim.

The chancellor upheld the Bovard trust, and Mrs. Dopp and Mrs. Deleon have appealed. They submit the chancellor erred in not finding the Bovard trust was barred by forgery or fraud, in allowing the introduction of inadmissible evidence, and in not sustaining the claims of laches and adverse possession. We find the evidence clearly preponderates against the claim of Spencer Bovard, that the Bovard trust is either a forgery or was obtained by fraud.

Background Facts

This is an extraordinary case. The factual issues, extending back over forty years, are complex. There are accusations of murder. Except for Mrs. Dopp, Mrs. Deleon and Mr. Bovard, the individuals whose testimony could be material are now dead: John Hoover in 1948, Dorothy Bovard in 1965, Margaret Piper in 1979, Guy Green in 1950 and, others. Two of those deaths were violent: John Hoover was murdered on the night of February 10, 1948; Dorothy Bovard died on February 3, 1965 from a self-inflicted gunshot wound to the head. The murder of John Hoover was never solved. Mrs. Dopp and Mrs. Deleon testified to their firm belief that Spencer Bovard was responsible for John Hoover's death. Surprisingly, the record is devoid of any response from Mr. Bovard to those startling accusations.

De Novo Review of Chancery Cases

Ordinarily, we do not reverse a chancellor where the decision turns largely on disputed facts and witness credibility, as we accede to his superior position to observe the witnesses and gauge their demeanor. But witness demeanor is simply one criterion of determining credibility, and when one version of the facts cannot be reconciled with undisputed versions, or is rendered too implausible to be believed when measured against common experience, then demeanor cannot override other equally reliable criteria. Moreover, chancery cases are tried de novo and when we find our own review of the record to be in marked disagreement with the chancellor's findings it is our duty to reverse. ARCP 52. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981).

Hoover Testimony

In January 1945 the Hoovers were living in Kansas City. Lula May Hoover worked in a coffee shop frequented by Spencer Bovard. When he asked her for dates, she told him he could come to her home and meet her parents, which he did. Over the months that followed he became like a member of the family, even proposing marriage to Lula May Hoover.

During his visits, Spencer Bovard began to discuss with John Hoover the land in Arkansas. It had belonged to the Northwestern Coal and Mortgage Company which had dissolved in 1922. Some of the stock belonged to the estate of Spencer Bovard's great uncle, John H. Bovard. Spencer Bovard was a co-administrator of the estate.

John Hoover had mining experience and with Spencer Bovard's encouragement he became interested in acquiring the land, which could be bought for $35,000. By corresponding with Mr. S.B. Stevenson, Vice President of the First National Bank of Ft. Smith, and with the partial backing of Margaret Piper, John Hoover managed to arrange the purchase, with the bank agreeing to lend him $11,000 of the purchase price. Guy Green handled the necessary legal work.

Lula May Hoover was employed out-of-state after April of 1945 but while at home on visits her father would discuss plans to purchase the property. He proposed to sell their home and a rent house in Kansas City and to borrow on his life insurance. The family would move to Arkansas and use the coal and timber from the land to pay off the balance of the purchase price. By August, 1946, her father had bought the land with Margaret Piper's help. He was excited about the prospects and told Lula May that Spencer Bovard had made it possible for him to acquire the land, that he hoped Spencer would help him develop the property and when the original investment had been repaid, he thought he would give Spencer a one-third interest.

Lula May Hoover returned to Kansas City in January, 1948. By then her parents were at the point of moving to Arkansas. She testified that something had happened to change her father's attitude toward Spencer Bovard. On Sunday, February 8, Lula May and her father drove to another part of the state on business. Her father was so upset his driving was affected and she took the wheel while he discussed his affairs in resume. He told her he planned to disassociate himself immediately from Spencer Bovard. Although he had discussed other intentions with her, he said they would never come to pass. She took it that while she was away Spencer had been in Arkansas to pump water from an abandoned mine shaft referred to as "the old Northwestern," but that for reasons he did not explain her father did not intend to have any further connection with Spencer Bovard. She testified that on Tuesday, February 10, her father was with Spencer Bovard and that evening he attended the Golden Glove fights but never came home. His body was found on February 14 in a remote section of Kansas City, bound and gagged in the backseat of his car. He had been struck on the back of the head but had died from smoke inhalation from an attempt to burn the interior of the car. Mrs. Dopp and Mrs. Deleon testified to actions and statements by Spencer Bovard after the death of John Hoover which raised their suspicions to the point they became terrified of him, and wanted no further contact with him.

Bovard Testimony

Spencer Bovard testified that because of Hoover's mining experience he told Hoover about the Northwestern property and its potential. Bovard said that he, John Hoover and Margaret Piper decided to go into business together as partners, though Mrs Piper was to have no active participation. Bovard said he was to come to Arkansas to pump out the old Northwestern mine and to promote coal leases to be sent back for Hoover's approval.

According to Spencer Bovard, Guy Green prepared the Bovard trust and John Hoover signed it in his presence in Guy Green's office. Bovard said he later gave the original of the Bovard trust to Green and Green lost...