George v. George, CA
| Decision Date | 05 December 1979 |
| Docket Number | No. CA,CA |
| Citation | 591 S.W.2d 655,267 Ark. 823 |
| Parties | Marvin GEORGE and Laverne Teas, Appellants, v. Shirley Dean GEORGE et al., Appellees. 79-165. |
| Court | Arkansas Court of Appeals |
Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey R. R. Jones, Conway, for appellants.
Brazil, Roberts & Courtway, Conway, for appellees.
This appeal was filed in the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29(3).
Shirley Dean George, a nominal appellee, was granted a decree of divorce in August, 1977 from Marvin George, who, along with his mother, Laverne Teas, are appellants from a decree rendered in December, 1978 cancelling a 99 year lease Marvin George had executed to Laverne Teas in August, 1976 for a recited rental consideration of $10.00 per year, plus payment of taxes.
Appellants contend the trial court erred in cancelling the lease.
The decree from which the appeal stems was pursuant to an intervention filed by Nathan E. Gentry and wife and by the trustees of the First Baptist Church of Mayflower, Arkansas, the respective purchasers of the two separate parcels of land sold at public auction as ordered in the divorce decree for the purpose of accomplishing the allocation of Mrs. George's statutory property rights upon divorce. At the commissioner's sale Mr. and Mrs. Gentry purchased the 10.3 acre tract of land and the trustees for the church, hereinafter referred to as "the church", purchased the 32/3Rds acre tract of land.
Each of the two intervenors paid the respective purchase prices in full, the court confirmed the sale and the commissioner's deeds were issued to the respective purchasers. Mrs. George received from the clerk of the court her portion of the net proceeds awarded to her by the order of distribution dated November 22, 1977 and there was no appeal from that order.
The appellants have not accepted any of the funds arising from the sale and have refused to recognize the sale or surrender possession of the property to the purchasers. The purchasers filed interventions herein against Mr. George, made Mrs. Teas a third party defendant and sought cancellation of the lease as a cloud upon their titles.
Mr. George and his mother, Mrs. Teas, contend the lands were not subject to sale because of the 99 year lease Mr. George executed to his mother in August, 1976. The complaint of the intervenors alleged the lease was a fraudulent conveyance and a sham and should be decreed null and void.
It is true, the law does not preclude a husband from conveying in good faith, in absence of fraud, his interest in non-homestead real estate without the wife joining in the conveyance. However, where the wife does not join in the conveyance the grantee of such conveyance or lease takes title burdened with the dower interest of the wife. Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979).
Chancery cases are reviewed De novo on appeal and if the decision is correct for any reason, we affirm. Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978).
Following are some of the facts in evidence supporting the decree cancelling the lease:
(1) When Mr. George executed the 99 year lease to his mother in August, 1976, his wife did not join in the lease and had no knowledge of the transaction.
(2) The lease called for a consideration of only $10.00 per year for both tracts of land, plus payment of taxes, and was signed by Mrs. Teas as lessee at the instance of her son.
(3) Prior to the execution of the lease in August, 1976, Mr. George had filed suit for divorce in June, 1976 and stated in the complaint there was no property to be settled. There had previously been one or more divorce actions filed by one of the parties against the other. Mrs. Teas was aware of the marital difficulties between the parties.
(4) The divorce was granted to Mrs. George pursuant to her complaint filed in May, 1977. She had no knowledge of the lease until after the court had ordered the land sold.
(5) The lease, although having a notary's signature and seal affixed and placed of record, was not acknowledged.
(6) The 32/3Rds acre tract which had two rent houses and a mobile home thereon was the marital homestead of the parties. One of the houses rented for $45.00 per month and the other rented for $35.00 per month. Mr. and Mrs. George resided in the mobile home.
(7) The two tracts sold for a total sum of $12,550.00 at the commissioner's sale.
(8) Mr. George continued to look after the property and was living on the 32/3Rds acre tract at the time of the trial of the interventions. He pays no rent to Mrs. Teas. Mrs. Teas does not reside upon either tract.
(9) Mrs. Teas in response to a question as to who has charge of the land testified, "I guess I have, if that lease is any good". She also testified she told Mr. Harris, one of the church trustees, after the commissioner's sale and conveyance, that all her son "had was that little bit of property and I was going to stand by him as long as I lived and could stand by him".
(10) Mr. Harris, a trustee of the church, testified that after he obtained the commissioner's deed for the church and later learned about the lease he talked to Mrs. Teas and she told him she was keeping the land for her son, Marvin.
(11) The intervenors purchased the property at public auction for substantial considerations, without actual or constructive notice of the lease, and paid the purchase monies in full.
Under the facts and circumstances in this case the decree cancelling the lease was warranted. It is clear the purchasers did not have actual knowledge of the lease and they were also not charged with constructive notice. Ark.Stat.Ann. § 49-201 sets out the requirements of an acknowledgment of an instrument for the conveyance of an interest in land and Ark.Stat.Ann. § 49-211 requires an acknowledgment before an instrument can be admitted to record. Moore v. Ollson, 105 Ark. 241, 150 S.W. 1028 (1912) held that a mortgage that was notarized and recorded but not acknowledged was not enforceable against a subsequent grantee of the property. The court quoted with approval a...
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