Hicks v. Rankin

• Decision Date: 08 November 1948
• Docket Number: 4-8636
• Citation: 214 S.W.2d 490,214 Ark. 77
• Parties: Hicks, Special Administratrix v. Rankin [*]
• Court: Arkansas Supreme Court

214 S.W.2d 490

214 Ark. 77

Hicks, Special Administratrix v. Rankin ^[*]

No. 4-8636

Supreme Court of Arkansas

November 8, 1948

Appeal from Saline Chancery Court; Sam W. Garratt, Chancellor.

Reversed.

Ernest Briner, for appellant.

Kenneth C. Coffelt and Wm. J. Kirby, for appellee.

OPINION

Wine J.

This suit was filed in the Chancery Court of Saline County in 1947 to reform a certain deed executed in 1929 by S. F. Hicks and Margaret T. Hicks, his wife, as grantors, to appellee as grantee.

Upon a hearing of this cause the chancellor entered a decree reforming said deed so as to include one acre, alleged to have been omitted through error in the original deed described as: All that part of the southeast quarter of the northwest quarter of section 18, township 2 south, range 12 west, which lies east of the Little Rock and Sheridan public road situated in Saline county, Arkansas.

Appellants have appealed from this decree of reformation.

On July 14, 1926, a "Contract of Sale of Real Estate" was made and entered into by and between S. F. Hicks as "seller" and Ruth Rankin as "buyer" for 40 acres of land immediately east of the one acre hereinabove described, together with an additional 2 1/2 acres not here in controversy and the one acre which is the subject of this litigation for a total consideration of $ 2,000 payable in installments extending to November 1, 1929.

It is not controverted that the appellee defaulted on the last payment due under the terms of said contract and that some "adjustment" was made between the parties as a quitclaim deed dated September 5, 1929, was executed by the appellee back to the "seller" (S. F. Hicks) for the 2 1/2 acres not here in controversy and that a warranty deed was executed on the same date by S. F. Hicks, et ux, as grantors to the appellee as grantee covering the land described as follows: "The southwest quarter of the northeast quarter, section 18, township 2 south, range 12 west, containing 40 acres." This 40 acres is situated immediately east of the one acre here in controversy. No mention was made in either of these two deeds of the one acre out of which this litigation arose, said one acre being a triangular or wedge shaped tract fronting on the Little Rock and Sheridan highway and extending north from the south line of said 40 acres something more than half the depth thereof.

The testimony is in conflict. W. M. Rankin, husband of the appellee, testified that he acted as the agent of the appellee in this transaction and that it was his understanding that the one acre in controversy was included in the deed to the 40-acre tract. He did not inspect the deed himself, but depended upon his attorney who drafted the contract and deed. This witness further testified that he had paid taxes on the one acre in controversy for the years 1944 and 1945; that he learned "maybe 6 years ago, maybe 7" before the trial in the Chancery Court, November 17, 1947, that the one acre in controversy had not been conveyed to the appellee.

It was stipulated that Hicks paid the taxes on the land in controversy under good description for the years 1939, 1940, 1941, 1942, 1943 and 1946, and that for the year 1938 and prior years the land was assessed only as a part description.

S. E. Freeman, son-in-law of Hicks, in checking the taxes discovered a forfeiture to the State of Arkansas, secured a deed from the State Land Commissioner in his own name and, in turn, reconveyed title to Hicks, the deed from the State to Freeman being dated May 23, 1938, for the taxes of 1926-29-30 described as Pt. SE1/4, NW1/4, S. 18, T. 2 S., R. 12 W.

The appellee herself did not testify in the trial court, her husband, W. M. Rankin, being the only witness called by the plaintiff except S. F. Hicks, who was first called by the plaintiff and later testified in his own behalf that the "Contract of Sale of Real Estate" and deed were prepared by appellee's attorney, and this was not disputed. He, too, testified that appellee defaulted on the last payment due under the terms of the purchase contract and that at the request of the appellee, he took part of the land back in forgiveness of the last installment. Appellee's lawyer prepared the deed which he (Hicks) and his wife signed and thought "everything was settled."

George T. Blackman, professor at Ouachita College, Arkadelphia, a son-in-law of S. F. Hicks, testified that in 1938 he, together with S. E. Freeman, another son-in-law of S. F. Hicks, went to see a Mr. Banks, who was appellee's successor in title to the south half of the 40 acres herein described and an agreement was made to "meet on Monday and move the fence to the proper line." This was deferred because Banks, at that time, was holding possession only under a contract of sale and did not have fee simple title, but later "we discussed the matter with the plaintiff's counsel, and his advice at that time was why raise a controversy over the fence, wait until Mr. Banks gets title and we can adjust the fence without any complaint so that is the reason the fence was not moved in 1938."

Margaret Hicks testified in substantial corroboration of her husband S. F. Hicks.

While it is a well established principle of law that equity will, in certain cases, invoke its jurisdiction to reform a written instrument by parol evidence, it is equally well established that a preponderance of the evidence alone is not sufficient. The proof must be clear, unequivocal and decisive. McGuigan v. Gaines, 71 Ark. 614, 77 S.W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S.W. 837; Tillar v. Wilson, 79 Ark. 256, 96 S.W. 381; Marquette Timber Co. v. Chas. T. Abeles Co., 81 Ark. 420, 99 S.W. 685; and Cherry v. Brizzolara, 89 Ark. 309, 116 S.W. 668, 21 L. R. A., N. S., 508.

This doctrine of equity is almost as ancient as our system of jurisprudence and was adhered to in the early English cases. In the case...