Elliott v. Elliott

• Decision Date: 03 July 1972
• Docket Number: No. 5--5801,5--5801
• Citation: 252 Ark. 966,482 S.W.2d 123
• Parties: Dale ELLIOTT et al., Appellants, v. Frank ELLIOTT et al., Appellees.
• Court: Arkansas Supreme Court

Page 123

482 S.W.2d 123

252 Ark. 966

Dale ELLIOTT et al., Appellants, v. Frank ELLIOTT et al., Appellees.

No. 5--5801.

Supreme Court of Arkansas.

July 3, 1972.

M. C. Lewis, Jr., Hot Springs, U. A. Gentry, Little Rock, for appellants; John E. Coates, Little Rock, of counsel.

Hall, Tucker & Lovell, Benton, for appellees.

FOGLEMAN, Justice.

This case arises from a dispute between two factions of the Elliott family, ignited by discovery of oil on Texas lands. The appellants (defendants below) have classified themselves as the Dale Elliott faction and the appellees as the Frank Elliott faction. We will occasionally do likewise. Their ancestors, I.J. and Metta Elliott, acquired a large quantity of land, some of which was in Texas in Taylor and Ward Counties. The Ward County lands were owned by the maternal ancestor, who acquired them by inheritance. The Taylor County lands were community property of the maternal and paternal ancestors. The paternal ancestor predeceased his wife. In a family gathering shortly thereafter Metta Elliott expressed her desire that when a division of the estate was made after her death, those who acquired the Texas lands would agree that if oil was later discovered on these lands, the mineral rights would be divided between the two factions. After the death of the maternal ancestor, there was a family division of the property. The Taylor County land was conveyed to Frank Elliott and Vesta Elliott, husband and wife, who paid $11,000 for a warranty deed dated October 27, 1945. The grantors conveyed 'all our undivided interest that we may have in and to' the lands. The recited consideration was $100. The Ward County land went to Mitt Elliott for a consideration. There was no reservation of mineral rights in either deed. Twenty-five of the Elliotts, twelve of whom were defendants in the trial court, signed the deed to Frank and Vesta Elliott. The grantors bound themselves, their heirs, executors and administrators to warrant and defend the premises to Frank and Vesta Elliott, their heirs and assigns, against every person claiming the same. Frank and Vesta Elliott conveyed an undivided one-third interest in the mineral rights in the Taylor County lands to their son, Thomas Frank.

Frank, Vesta and Thomas Frank Elliott instituted the action by bringing a suit for damages for the alleged wrongful attack on their title by a suit brought by appellants in Taylor County, Texas. The Frank Elliotts based their claim upon allegations of breach of warranty, malicious prosecution and slander of title by appellants. They sought to recover their expenses in the successful defense of the Texas action and punitive damages. Appellants filed a demurrer and a general denial. A jury found for the plaintiffs (appellees) and assessed damages at $7,145.04. Judgment was entered against six of the twelve defendants, but a verdict was directed in favor of the other six.

Vesta Elliott, aged 77, who had been married to Frank Elliott for 49 years, testified that she had taught school for 14 years, 10 of which followed her marriage to Frank. She identified Reb, Arma and Mitt as brothers of Frank. She recalled buying the Taylor County land from the Elliott family in 1945. She said that she and her husband paid the other Elliott heirs $11,500 in cash. Mrs. Elliott said that some of her money, along with her husband's, was used to make this purchase, and that some of the purchase price came from the sale of hogs, milk and wool to the production of which she had contributed. She stated that the purchase price was paid in portions to the grantors in the deed as they came by the Frank Elliott house to sign the deed. She claimed to have itemized statements showing the amount paid to each, which she thought were in the hands of her attorney. She testified that there was no agreement or conversation about an agreement to divide anything the land produced with any of the grantors in this deed, and that she and her husband were purchasing 'clear title.'

Mrs. Vesta Elliott said that the Texas suit was instituted in 1969 after Dale (son of Mitt) and Reb Elliott had made demands upon her husband for one-half of the mineral rights in the Taylor County land. She said that her husband and son employed lawyers in Texas to defend the suit there and that payments due from an oil company had been held up for about a year because of the litigation. According to her, $8,000 to $8,500 was spent defending this lawsuit. She said that she had checks to verify these expenditures.

Frank Elliott was 87 years old when he testified. It was his recollection that the purchase price was $11,000. He agreed that his wife had helped earn the money used by working on the farm and that she made it a rule to save $1,000 per year. He said that a Benton lawyer and a Texas law firm were employed to defend the Texas lawsuit, but that Thomas Frank had looked after the lawsuit for himself and his parents.

Frank Elliott recited this version of the family discussion about the property:

Frank looked after the Ward County land for his mother from 1923 until she decided to divide it among her children. Oil was later discovered on the land she gave to her son Mitt, the father of Dale. The mother told Frank that she wanted him to divide some of the land that was left. They valued the Ward County land at $2,000 per acre and the remainder at $1,500 per acre. Nobody really wanted the Texas land. One of the children asked, 'What if that land was to produce oil?' Mrs. Metta Elliott then said that whoever got that land could have it for $1,000 with the understanding that if it produced oil, a one-half interest was to be divided with the other children. But this wasn't done. Mitt took this land, it produced oil and he sold off one-half of it. The deed from Frank's and Mitt's mother contained no reservation of oil and minerals. Mrs. Metta Elliott was talking about her own estate, when she made the answer to the question about striking oil.

Gertrude Williams is a sister of Frank, Reb, Arma and Arch Elliott. She testified that she signed a 'disclaimer' dated September 22, 1945, agreeing to take $11,000 within 80 days for 200 acres of land in Taylor County, Texas. The handwritten names of Frank, M.J., Arthur, Reb, Arma D., Arch, Arkie, Calvin, Odis, Harold, Luther and Leonard Elliott and of Idella Tarvin, on this document, all appeared to her to be their signatures. She said that neither Frank, Vesta nor Thomas Frank Elliott ever agreed to divide any interest in the oil rights in the Taylor County lands with her.

Reb Elliott also testified that Frank and Vesta and Thomas Frank Elliott never agreed, in his presence, to divide the oil royalties on the land.

Thomas Frank Elliott employed a Benton, Arkansas, law firm and an Abilene, Texas, firm to defend the action brought in Texas by appellants, or some of them. He itemized attorney's fees and expenses in the successful defense of that suit at a total of $6,794.07. He also detailed expenses of himself and his father in that defense totalling $510. He said that the royalty payments held up amounted to $350.97. He admitted that the Frank Elliott faction had not called upon either of the appellants or any other person who signed the deed to his parents to defend the breach of warranty action in Texas.

R. M. Rutledge, a Texas attorney, represented the appellants in a suit against Frank, Vesta and Thomas Frank Elliott in Taylor County, Texas, in December 1969, to establish an equitable ownership in an undivided interest in oil, gas and minerals of the Taylor County lands. He said he was first consulted by Dale and Howard Elliott, who informed him of family history, furnished him with documents relating to a family property division, depositions of some witnesses in earlier litigation in Ward County, along with other written material. This attorney said he advised the appellants that he thought it would be possible to establish their ownership of an undivided interest in oil, gas and mineral production of the Taylor County land, recommended filing the suit and accepted employment on a contingent fee basis, when appellants preferred this arrangement over an alternate cash fee suggested by Rutledge. The case was tried but appellees prevailed. Rutledge was of the opinion that the cause of action was just, even though he had recommended that no appeal be taken because he felt there would be great difficulty in overturning the trial court's decision. This lawyer stated that a lis pendens notice was filed, as normal Texas procedure, to prevent anyone from becoming a good faith purchaser of the lands for a valuable consideration without notice of th suit. He advised the Permian Corporation and Coastal States Gas Purchasing Company of the suit as a matter of routine. In prosecuting the case, Rutledge took the statements of the Dale Elliott faction made to him at face value.

Harold Elliott admitted signing the deed under which appellees claimed.

The circuit judge denied a directed verdict for appellants at the conclusion of the testimony on behalf of appellees insofar as appellees' cause of action for breach of warranty was concerned, but granted such a verdict insofar as malicious prosecution and punitive damages were concerned. At the conclusion of all the evidence, the court directed a verdict in favor of all of the defendants except appellants. The appellants were those who both signed the deed to the Frank Elliotts and joined in the Texas suit. Appellants' motion to dismiss and request for a directed verdict was denied.

Appellants argue...