Haynes v. Gwin

• Decision Date: 10 February 1919
• Docket Number: 103
• Citation: 209 S.W. 67,137 Ark. 387
• Parties: HAYNES v. GWIN
• Court: Arkansas Supreme Court

209 S.W. 67

137 Ark. 387

HAYNES v. GWIN

No. 103

Supreme Court of Arkansas

February 10, 1919

Appeal from Perry Circuit Court; John W. Wade, Judge; affirmed.

STATEMENT OF FACTS.

This is an action brought by Dovie Gwin by her next friend, Clark Haynes, to recover an automobile, a cow, and certain household furniture. After the original complaint and affidavit in replevin had been filed, the plaintiff filed an amendment thereto stating a particular description of the property claimed and the value of each article thereof. The material facts are as follows:

Lula Haynes is the widow of W. A. Haynes, deceased, and Dovie Gwin is a daughter by a former wife. The mother of Dovie Gwin died on October 27, 1916, and Dovie was at the time fourteen years of age.

According to Dovie Gwin's testimony, after her mother's death and during the fall of 1916, her father, W. A. Haynes brought an automobile and some new fixtures to his home and gave them to her. He also gave her a cow which he had bought before her mother died. W. A. Haynes married the defendant on Janary 17, 1917. The plaintiff continued to reside with them until October 27, 1917, when she married Jim Gwin, a brother of her stepmother. She then went with her husband to his father's home which was next to that of her father and lived there until her father died on January 30, 1918. She did not take away any of the property embraced in this suit when she married and left her father's home:

Mrs Sylvania Eaton, a sister of the plaintiff, testified that after their mother's death their father bought an automobile and some new furniture and gave them to the plaintiff. She, also, testified that he gave to the plaintiff a cow which he had bought in their mother's lifetime.

Several other witnesses testified that they saw W. A. Haynes taking the automobile and the new furniture to his home and that he stated to them that he had bought them for the plaintiff.

One witness testified that the plaintiff was with him when he bought the automobile and that they rode home in it. All these conversations occurred at the time he bought the automobile and the furniture and before he married the defendant.

According to the testimony of the defendant, Lula Haynes, the plaintiff continued to reside at her father's home until she married in the fall of 1917. The plaintiff never made any claim to the property in question and it remained in the possession of W. A. Haynes during his lifetime. The plaintiff never said anything about taking any of it away at the time she married the brother of the defendant.

W. A Haynes gave a mortgage to a firm of merchants in Conway Arkansas, on the automobile, two mules, a wagon, his plow tools, the cow, and his crops of corn and cotton to be grown by him in Perry County, Arkansas, during the year 1917, to secure an account which he owed them. At the time of his death W. A. Haynes owed a balance of $ 612.03 on said mortgage. The defendant and her father paid the mortgagees the amount of the mortgage indebtedness and had the mortgage transferred and assigned to them. Three hundred and sixty dollars of the money so paid to the mortgagees was obtained by the sale of the cotton embraced in the mortgage and the defendant has in her possession the two mules embraced in the mortgage, which are worth more than the balance of the mortgage indebtedness. Other facts will be referred to in the opinion.

The jury returned a verdict in favor of the plaintiff and from the judgment rendered the defendant has appealed.

Judgment affirmed.

P. H. Prince, for appellant.

A gift of personal property must be delivered. 60 Ark. 169. A gift to take effect after death of the donor retaining control and possession cannot be sustained. Am. & Eng. Enc. Law (2 ed.), 1015. If donor and donee reside at same place at the time of the gift, possession of donee at place of residence not sufficient. Ib. 1018.

In case of furniture, etc., in a certain room donor must clearly designate the property and turn over the possession to donee. Ib. 1021. Delivery must be absolute. Donor must part with possession and relinquish all dominion and control. Ib. 1019. Where parties live together as parent and child it is sufficient if it clearly appears that donor has relinquished and donee has acquired all dominion and control of the property. Ib. 1024. Here there was no delivery and appellee went away without taking or claiming any of the property.

It was error to allow Dovie to prove that Haynes had insured his life for $ 1,000 and then after Dovie had married changed the policy to his wife, Lula. It was error also by ordering the exhibit of five beneficiary certificates on Haynes' life taken from another case in court and read to the jury. Also in allowing the clerk, Brazil, to testify, giving the substance and changes in said certificates and that the certificate was changed to Lula. Also in plaintiff to prove on cross-examination of Jim Gwin that two mules in the mortgage to Frauenthal & Schwartz were worth $ 250 and worth enough to pay the balance on the mortgage after Haynes' cotton had paid $ 360. The court erred in its instructions. Kirby's Digest, § 72. Haynes' estate is insolvent. The verdict is contrary to the law and evidence.

J. H. Bowen and Calvin Sellers, for appellee.

The testimony supports the verdict. There was no error in admitting testimony nor in the instructions, as they clearly are the law. 10 Ark. 211. The verdict should not be disturbed as it is supported by the law and the evidence.

Haynes gave appellee all the personal property including the mortgaged mules.

OPINION

HART, J., (after stating the facts).

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to warrant the verdict. It is claimed that in order to make a valid gift, possession must at the time accompany it and that the proof in the present case fails to show that the property was delivered to the plaintiff. We do not agree with counsel in this contention, but think the question was one of fact for the jury and not of law for the court. The plaintiff was only fourteen years of age at the time her mother died. It is fairly inferable from the evidence that her father took her to town and bought an automobile and drove home with her in it. He told a married daughter that he had bought the automobile for the plaintiff. He, also, told his married daughter that he had given the cow and the new furniture purchased by him, after his first wife's death, to the plaintiff. He told other persons at the time he purchased the automobile and the furniture that he had bought them for the plaintiff. It is true his mere naked declaration that he had bought the property for his daughter did not confer title upon her, but it was evidence of title. Prater, Ad v. Frazier and Wife, 11 Ark. 249. Where a gift is made to an infant, even,...