Hardin v. Russell

• Citation: 298 S.W. 481
• Decision Date: 17 October 1927
• Docket Number: (No. 242.)
• Parties: HARDIN et al. v. RUSSELL et al.
• Court: Supreme Court of Arkansas

Page 481

298 S.W. 481

HARDIN et al. v. RUSSELL et al.

(No. 242.)

Supreme Court of Arkansas.

October 17, 1927.

Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor.

Suit by Millie E. Russell and others against Susie Hardin and another. Decree for plaintiffs, and defendants appeal. Affirmed.

Tessie M. Billings and G. O. Patterson, both of Clarksville, for appellants.

Webb Covington, of Fort Smith, and J. J. Montgomery, of Clarksville, for appellees.

MEHAFFY, J.

The appellees, plaintiffs below, brought suit in the Johnson chancery court to have certain deeds declared void and canceled. They alleged that William N. Russell, on the 18th day of March, 1924, made deeds to certain property to Susie Hardin and Olivia Acord; that at the time he made said deeds said Russell was afflicted with Bright's disease, had been for some time, and was feeble in body and mind and incapacitated to transact any kind of business; and that while he was in this condition the defendants took advantage of his feeble and weak condition and induced him to sign the deeds. In other words, they alleged that he was mentally incapacitated and also alleged undue influence. The defendant answered, admitting the making of the deeds, but denying all other material allegations of the complaint. At the trial, proof was introduced on the question of the delivery of the deed. Russell died a few days after the execution of the deed, and the chancellor found that it had never been delivered.

The facts with reference to the delivery of the deed are substantially as follows:

L. J. McMillan testified that Mr. Mayfield did the writing; he wrote the deeds. When they were drawn, Mayfield had Mrs. Russell to come in. When both deeds were written, Mr. Russell doubled the will up and stuck it back in the envelope and then got up and signed the deeds.

B. W. Hardin, the husband of Susie Hardin, testified that he was not present when the deeds were made, and that he delivered the deeds to the parties after Mr. Russell's death; that he was obeying instructions at the time he made the delivery. He said that Mr. Russell told him to tend to his will and tend to his business. The deeds were sent out there to be put in the safe and be locked up. None knew the combination but witness and Mr. Russell. Witness knew what he had done with the deeds because he put them back in the envelope. Mr. Mayfield brought them out there. He also testified: Mr. Russell told me to tend to his will and tend to his business. He told me about the deeds several times. Witness put the deeds in the safe according to Mr. Russell's directions, and they were there until his death. They were with the will. The seal had not been broken. They were in a large envelope with the indorsement on the back, "This is my will and deeds."

N. A. Mayfield, justice of the peace, who wrote the deeds, testified that he drew the deeds under the direction of Mr. Russell and took Mrs. Russell's acknowledgment. She could not write, but touched the pen while witness made a cross mark. After the deeds were finished, Mr. Russell had me lay them back and called for a piece of paper and had that addition to the will drawn. He called for an envelope and some one went to the store and brought back a long blank envelope, and he took the instrument he had in his hand, those deeds and the addition to his will, and folded them up and put them all in that envelope and sealed it up. He asked me to write on there his will and deeds, and I did. He asked me to take them over there and give them to Mr. Hardin and put them in the safe and lock them up. I took them and delivered them to Mr. Hardin.

Olivia Acord testified that the deeds were signed on the 18th day of March and that Mr. Russell died on the 5th day of April.

There was testimony introduced by both parties as to Mr. Russell's capacity and also as to undue influence. There was also testimony to show that Mr. Russell could scarcely read or write and Mrs. Russell could neither read nor write. But this testimony about undue influence, incapacity, and the condition of the parties need not be set out, because we think the important question, and the one that determines this case, is whether or not the deed was delivered.

It has been repeatedly held that a manual delivery need not be made by the grantor, but the delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance, and the question of whether the deed had been delivered is largely one of intention on the part of the grantor.

This question of intention is to be determined from the evidence, and unless the finding of the chancellor is against the preponderance of the evidence, his decree will be affirmed.

In this case we do not think the finding of the chancellor is against the preponderance of the evidence. Appellant calls attention to a number of cases, but we do not think that this case comes within the rule announced by either of them. In one of the cases cited by appellant the court said, quoting from another decision of this court:

"To constitute an instrument an escrow, it is absolutely necessary that the deposit of it should be irrevocable; `that is, that when the instrument is placed in the hands of the depositary it should be intended to pass beyond the control of the grantor for all time, and that he should actually lose control of and dominion over the instrument; for, in case the deposit is made in furtherance of a contract...