Grigsby v. Bedwell
| Decision Date | 04 November 1918 |
| Docket Number | 221 |
| Parties | GRIGSBY v. BEDWELL |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Chancery Court, Eastern District; Geo. T Humphries, Chancellor; reversed in part.
Decree reversed in part, affirmed in part, and cause remanded.
W. P Smith and E. H. Tharp, for appellant.
No fraud was practiced by appellant, but the deed was made of appellee's own free will and accord. 97 Ark. 268; Story Eq. Jur. 203, § 191; 2 Kent, Com. (4 ed.) 484-5. She signed the deed and acknowledged it after her attention had been called to the fact that she was conveying more land than she now claims. 40 Ark. 219; 85 Id. 363; 173 U.S 17; 102 Ark. 363.
W. A Cunningham, for appellee.
1. Grigsby was trustee of an express trust and when he converted $ 950 in cash which he held for his wards, into lands, his wards had the right either to sue for the money or follow it into the lands. The right to follow the trust fund continues as long as the fund can be traced and identified. 27 Ark. 197; 47 Id. 539; 92 Id. 59. A deed of gift does not make the recipient an innocent purchaser. 5 Cyc. 719.
2. Fraud was proved. 38 Ark. 434; 78 Id. 116. Eighteen hundred dollars' worth of property was obtained from a confiding sister for $ 320. The finding of the chancellor is sustained by the evidence.
OPINION
This suit was brought by appellee to cancel a deed executed by her to her brother, the appellant, on the ground that its execution had been procured by fraud. Appellee admits that she voluntarily executed the deed for the sum of $ 320, the consideration recited in the deed, but she alleged that it was her contract and intention to convey only an undivided one-fourth interest in the northeast quarter of the northeast quarter, of section 22, township 15 north, range 1 west, this being the land in which she inherited an interest from her mother. But, in addition to that interest, the deed also described and conveyed an undivided one-third interest in four other tracts of land, containing 230 acres, and which interest she alleged was worth at the time the sum of $ 1,000. In support of the allegations of her complaint appellee testified that, on February 3, 1914, the date of the deed, she was barely eighteen years old, and wholly unfamiliar with land descriptions and relied upon the representations of appellant, her brother, that the deed conveyed only the land which she had contracted to sell.
Appellant and appellee were the children of J. H. Grigsby, who had married five times, his first wife leaving one child, the appellant. The second wife left four children, of whom appellee was one. The third wife to whom J. H. Grigsby was twice married left three children, and his fourth wife, who survived him, had one child. Appellee's mother owned the forty-acre tract described above in her own right, and also owned an undivided interest in certain other lands known as the Childers land, which consisted of an eighty-acre and a forty-acre tract.
Upon the death of his second wife, J. H. Grigsby was appointed guardian of the minor children of this wife, and he sold the interest of these minors in this Childers land. In 1910, J. H. Grigsby purchased through J. N. Childers 240 acres of land in sections 11 and 14, and took a deed to himself for the 120 acres in section 11, and caused a deed to be made to his wards for the 120 acres in section 14.
Appellee arrived at the age of eighteen on November 24, 1913, and married Leo Bedwell in December following, which marriage was so much against her father's wish that he never spoke to her again until a short time before his death. In 1901, J. H. Grigsby, while living with his second wife, divided his lands among his children then in esse, these deeds containing a clause providing for a right of survivorship among the grantees, and reserving to the grantor the use of the lands for his natural life. The complaint contained a prayer for the cancellation of the deed from appellee to appellant for fraud, and, having made the other heirs parties to the cross bill, there was a prayer that a constructive trust be declared in appellee's favor in the lands bought by her father and guardian with her money, and for partition of the lands. The court made an order cancelling the deed upon the refund of the $ 320, with interest, but refused to make any order in regard to the lands purchased by J. H. Grigsby from Childers. The court also decreed that the lands deeded to the older children were an advancement, and decreed title to the children to certain lands owned by J. H. Grigsby at the time of his death, and an appeal has been prosecuted by appellant to reverse the action of the court in cancelling the deed to him, and a cross appeal has been prosecuted by appellee to review the action of the court below in refusing to declare a trust in accordance with her prayer in the cross complaint.
In support of the cross appeal, it is contended that J. H. Grigsby was the trustee of a resulting trust, because of his purchase of lands with the funds of his ward, the title to which he took in his own name. But, without any further statement of the facts in regard to this issue, it suffices to say that J. H. Grigsby made a final settlement of his guardianship, which was made under the provisions of section 3822, Kirby's Digest, which was approved by the court, and after appellee had attained her majority and had married, she and her husband executed a receipt to the guardian acknowledging full settlement of all money and other property due her.
The real question in the case is whether the deed should be cancelled because of the mistake of one party accompanied by the fraud of the other. The law of that subject was fully discussed in the recent case of Welch v. Welch, 132 Ark. 227, 200 S.W. 139, and need not be restated, but, applying the test of that case to the facts of this, we have concluded that the testimony is not sufficiently clear, unequivocal and undisputed, to warrant the cancellation of the deed.
Counsel for appellee in their brief invoke the doctrine of the cases of Million v. Taylor, 38 Ark. 428; Reeder v. Meredith, 78 Ark. 111, 93 S.W 558, and Giers v. Hudson, 102 Ark....
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