Henslee v. Kennedy

• Decision Date: 19 September 1977
• Docket Number: No. 76-383,76-383
• Citation: 555 S.W.2d 937,262 Ark. 198
• Parties: L. C. HENSLEE and Willa Dean Henslee, Appellants, v. E. S. KENNEDY and Jewell Kennedy, Appellees.
• Court: Arkansas Supreme Court

Page 937

555 S.W.2d 937

262 Ark. 198

L. C. HENSLEE and Willa Dean Henslee, Appellants, v. E. S. KENNEDY and Jewell Kennedy, Appellees.

No. 76-383.

Supreme Court of Arkansas, In Banc.

Sept. 19, 1977.

Rehearing Denied Oct. 24, 1977.

Eugene Hunt of Hunt & Jamison, Pine Bluff, for appellants.

Charles S. Gibson, Dermott, for appellees.

FOGLEMAN, Justice.

This action involves the interests of the parties in certain lots in Arkansas City on which there is a grocery and liquor store. Appellees filed a complaint in chancery, praying for an accounting, asserting that they owned the property in partnership with appellants. Appellants counterclaimed asserting that appellees had only a security interest. The complaint was dismissed on motion for summary judgment on the ground that it was barred by the statute of limitations. There is no appeal from that action. The counterclaim was dismissed after a trial on the merits. The trial court found that appellants had not proved by clear, cogent and convincing evidence that there was an oral contract to convey the property to them.

Appellants alleged in their counterclaim that appellee E. S. Kennedy secured the sum of $8,500 at appellants' request for the purchase of the property in question and requested that his (appellee's) name appear on the deed for securing the loan made to appellants; that appellee promised to execute a quitclaim deed with release of dower to appellant upon repayment of the $8,500, all of which has been paid; that appellants have paid all the sums owed to appellee regarding the purchase of the property and have made demand of appellees to execute the deed, but they refused; and that appellee, E. S. Kennedy was trusted. They prayed that the court rule that appellee holds title to the property as trustee and order a conveyance by him to them. Appellees answered by a general denial.

These allegations stated a cause of action for the declaration of an implied trust, and, more specifically a resulting trust. This is a trust that arises by operation of law, rather than by express agreement and it may arise despite the fact that there is no manifestation of intention to create an express trust. Harbour v. Harbour 207 Ark. 551, 181 S.W.2d 805. A resulting trust arises, not out of an agreement, but out of the circumstances surrounding the transaction, indicating that the beneficial interest is not to go with the legal title. Darsow v. Landreth, 236 Ark. 189, 365 S.W.2d 136. ¹ It is presumed to arise in favor of one who pays or secures the purchase price for land at the time of the transaction when the deed is taken in the name of another. Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 930; Jones v. Jones, 118 Ark. 146, 175 S.W. 520. We have long recognized the applicability of the general rule prevailing in other jurisdictions that a resulting trust arises when the person who takes the title holds it as security for his advance of the purchase money as a loan to the person claiming the benefit of a resulting trust. Byers v. Danley, 27 Ark. 77; Restatement of the Law, Trusts 2d, § 448 p. 410. This rule has been applied by us in Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731; Payne v. Box, 231 Ark. 301, 329 S.W.2d 181 and Gorenflo v. Brown, 233 Ark. 221, 343 S.W.2d 564. In Crain, we said that the result is the same as though the transferee first lent the amount of the purchase money to the borrower and the borrower then paid the amount borrowed to the vendor and the conveyance was then made by the vendor to the lender.

There are certain preliminary points we must address before reaching the merits of appellants' counterclaim. Appellants contend that the chancellor erred in denying their motion for summary judgment on the counterclaim. The denial of a motion for summary judgment is not subject to review even after final judgment in a suit. Widmer v. Ft. Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W.2d 63; Deposit Guaranty Nat. Bank v. River Valley Co., Inc., 247 Ark. 226, 444 S.W.2d 880; Williams v. Varner, 253 Ark. 412, 486 S.W.2d 79. However, the error on which appellants base their argument is subject to review: that is, that the trial court erred in finding that appellees' answers to requests for admission were sufficiently verified; therefore, the matters requested were admitted.

The requested admissions were denied by appellees but there was no statement or verification in the body of the document that appellees swore to the truth of their answers. The document was signed by appellee E. S. Kennedy and a notary public's jurat followed his signature. Appellants complain that the notary's jurat is not sufficient verification. Ark.Stat.Ann. § 28-358 (Repl.1962) requires that a party, who wishes to deny specifically the matters of which an admission is requested, serve upon the party requesting admission "a sworn statement" so denying the matters. All of the cases cited by appellants and others which we have examined either found error or affirmed on the ground that the denials were not "verified." None of these cases has answered the question whether a notary's jurat constitutes a sufficient verification; and none of them has stated what would otherwise be a sufficient verification.

"Verification" is sometimes taken to mean simply confirmation of correctness, truth, or substantiation by affidavit, oath, or deposition; swearing to an affidavit. McNamara v. Powell, Sup., 52 N.Y.S.2d 515 (1944); Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927); Herbert v. Roxana Petroleum Corp., 12 F.2d 81 (D.C., Ill.). "Sworn to" is frequently used interchangeably with "verified" and implies that the subscriber shall have declared upon oath the truth of the statement to which his name is subscribed. Ashley v. Wright, 19 Ohio St. 291 (Critchfield) (1869); Indiana Quarries Co. v. Simms, 158 Ky. 415, 165 S.W. 422 (1914); 83 C.J.S. p. 929. The requirement of verification has been held to require the swearing to the truth of his statements by the subscriber and certification thereto by an officer authorized to administer oaths. Gossard v. Vawter, 215 Ind. 581, 21 N.E.2d 416 (1939); In re James Passero & Sons, Inc., 237 App.Div. 638, 261 N.Y.S. 661 (1933).

The notary's statement appended to the response to the request for admissions is called a "jurat," which is a certificate evidencing the fact that the instrument was properly made before a duly authorized officer. See Black's Law Dictionary (4th Ed.). In distinguishing between a jurat and an acknowledgment, this court said ". . . a jurat is a simple statement that an instrument is subscribed and sworn to or affirmed before a proper officer without the further statement that it is the act or deed of the person making it." Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218. A jurat has been held to be prima facie evidence that an affidavit was properly made. Stern v. Board of Elections of Cuyahoga County, 14 Ohio St.2d 175, 43 Ohio Op.2d 286, 237 N.E.2d 313 (1968).

It has also been held that proof of service was sufficient even though the body of the affidavit failed to declare that the statement was made under oath (it used the word "certify"). In Mitchell v. National Surety Co., 206 F. 807 (D.C.N.M.1913) the court explained:

. . . (E)vidence by the jurat of the administering of the oath is sufficient to make it a written statement under oath and thus an affidavit, notwithstanding the affiant fails to state over his signature that he is declaring under oath . . . (I)ts very function . . . is to show that the statement has been made under oath before a competent officer. Using it for that purpose, it is efficient to show that the statement was made under oath even if the affiant fails so to recite.

See also, White v. Heber City, 82 Utah 547, 26 P.2d 333 (1933); Tucker v. State, 244 Md. 488, 224 A.2d 111 (1966), cert. den. 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463; Greene v. Lombard, 33 Ga.App. 518, 126 S.E. 890 (1925).

We have held that it was not necessary for an affiant to sign an affidavit (required by statute) that an appeal was not taken for the purpose of delay. Gill v. Ward, 23 Ark. 16. The requirements were stated: ". . . he must swear to the facts stated, and they must be in writing . . . (A)nd as evidence that it was sworn to by the party, whose oath it purports to be, it must be certified by the officer before whom it was taken; which certificate is commonly called a jurat, and must be signed by such officer." Accord, Huff v. Commonwealth, 213 Va. 710, 194 S.E.2d 690 (1973). See also, Mahan v. Owen, 23 Ark. 347. We have held that the statutory form and requisites of verification of pleadings (Ark.Stat.Ann. §§ 27-1105 et seq. (Repl.1962)) do not apply to discovery. Young v. Dodson, 239 Ark. 143, 388 S.W.2d 94.

Because there is no statute or judicial precedent requiring that the party denying admissions state in the denial that he does so on oath, the notary's statement that he was sworn was sufficient evidence that the denial was under oath.

Appellants also asserted that the trial court erred in failing to declare a mistrial when the chancellor inadvertently saw an offer of settlement by appellant which was shown to Kennedy to refresh his memory on another matter. We will not pass on the admissibility of the letter because it was not argued that the court erred in excluding it from evidence.

The drastic remedy of mistrial should be a rarity in a chancery court. It should not be resorted to unless justice cannot be served by continuing the trial or unless prejudice cannot be avoided or removed by any other means. Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187. In this instance the chancellor promptly called the attorneys for the parties into his chambers, advised them what had happened, and stated that he would totally and utterly disregard what he saw as having no bearing on the issues. The matter of granting or denying a mistrial lies within the sound judicial discretion of the trial judge. ...