Fenter v. First National Bank of Malvern

• Decision Date: 07 July 1930
• Docket Number: 94
• Citation: 30 S.W.2d 820,182 Ark. 89
• Parties: FENTER v. FIRST NATIONAL BANK OF MALVERN
• Court: Arkansas Supreme Court

30 S.W.2d 820

182 Ark. 89

FENTER v. FIRST NATIONAL BANK OF MALVERN

No. 94

Supreme Court of Arkansas

July 7, 1930

Appeal from Grant Chancery Court; Wm. R. Duffie, Chancellor reversed.

Decree reversed, and cause remanded.

Isaac McClellan, for appellant.

John L McClellan, for appellee.

OPINION

KIRBY J.

Appellee bank brought this suit to charge appellant with liability to the payment of a certain note sued on executed by his father to the bank, upon the allegation that the father had conveyed certain lands to appellant charged with a trust for payment of his debt to the bank.

Appellant demurred to the complaint and answered denying that D. C. Fenter had executed the note for the amount as alleged to the bank on November 5, 1926, and denied that the Exhibit A to the complaint was a copy of the note; admitted that on August 6, 1924, his father executed and delivered to him two deeds conveying certain of the lands, 70 acres, and on October 1, 1924, executed and delivered to him another warranty deed conveying to him the other 40 acres; denied that there was any consideration expressed in said deeds or that there was any verbal understanding or agreement between the grantor and him that he was to assume and pay the note to the plaintiff or any other indebtedness that might become valid claims against the estate of D. C. Fenter; alleged that, after the execution and delivery of the deeds, he took possession of the lands, lived on them and paid the taxes for more than two years before the execution of the note sued on; denied that he was trustee for the bank or that he held the lands otherwise than as his own, and adversely to every one else after the execution of the deeds; denied that plaintiff had asked for an administration on the estate of D. C. Fenter as one of the creditors, notwithstanding Fenter had been dead for more than two years.

It appears from the testimony that the deeds, ordinary warranty deeds, were made by D. C. Fenter, the father of appellant, upon the dates alleged, each reciting a consideration of $ 5. Appellant stated he took possession of the lands after the conveyance, took care of his father and supported him from that time until his death, and agreed when the deeds were delivered to pay two debts, one the individual debt of his father to the appellee bank for $ 200 and $ 200 due to John A. Cunningham, the note to Cunningham being secured by a mortgage on some of the lands; that he thereafter paid or arranged to pay these debts; that he agreed to pay and took care of and supported his father during the remainder of his life. He denied that there was any agreement on his part to pay the note or debt sued on by the bank, evidenced by the note dated nearly two years after the execution of the deeds to him by his father.

The cashier of appellee bank testified that the note sued on was executed by H. F. Cloud, D. C. Fenter and A. R. Nichols dated November 5, 1926, but that it was a renewal note for a note executed November 5, 1925. He then gave a history of the note claiming the first note, of which he said this was a renewal, was given to the bank in November, 1920, for $ 165, and that it had never been paid except by renewals. He was not able to explain why the note sued on did not show on its face that it was a renewal note, but said that it was not necessary that it should, since the bank's books showed that it was such a renewal.

Nichols one of the parties to the note, testified that it had been given and renewed several times; that, after it was due the last time, he had had a conversation with appellant, having heard that his father had deeded him certain lands charged with the...