Howard v. Howard

• Decision Date: 13 March 1922
• Docket Number: 214
• Citation: 238 S.W. 604,152 Ark. 387
• Parties: HOWARD v. HOWARD
• Court: Arkansas Supreme Court

238 S.W. 604

152 Ark. 387

HOWARD v. HOWARD

No. 214

Supreme Court of Arkansas

March 13, 1922

Appeal from Union Chancery Court; J. Y. Stevens, Chancellor affirmed.

Decree affirmed.

Patterson & Rector and Gaughan & Sifford, for appellant.

The evidence is not sufficient to establish a resulting trust in D. C. Howard for the benefit of his wife, Frances C. Howard 11 Ark. 82; 44 Ark. 365; 89 Ark. 186; 111 Ark. 49; 75 Ark 452.

The deed from D. C. Howard to his wife should be regarded as a voluntary conveyance, notwithstanding the recited consideration of one dollar. 98 N.C. 426; 2 Am. S. R. 342; 30 Miss. 91; 64 Am. Dec. 148; 8 Am. Dec. 152. Since the consideration recited is merely nominal and was not in fact paid, and love and affection is recited as the consideration the court would not be justified in changing the nature of an instrument merely because a consideration is recited. 23 R. C. L. secs. 38-39. pp. 344-4, notes 6 to 18.

A purely voluntary conveyance will not be reformed. 193 Mo. 421, 91 S.W. 1027; 15 Ark. 519; 80 Ark. 458; 127 Ark. 54.

The sums paid by Mrs. Howard either for purchase price of land or toward cost of erecting house cannot be treated as a valuable consideration for the execution of the deed to her.

Marsh & Marlin, and Jones & Head, for appellee.

Where a valuable consideration is expressed in a deed, it may not be contradicted where the effect of such contradiction would be to avoid the instrument. 6 Ark. 109; 71 Ark. 494; 141 Ark. 93; 99 Ark. 350; 125 Ark. 441; 145 Ark. 310; 227 U.S. 101.

The deed was not voluntary. Any consideration which will support a deed is sufficient for the purpose of reformation. 23 R. C. L. sec. 39; 34 Cyc. 929; 58 Ind. 1; 110 Ga. 278; 108 Ind. 61, 9 N.E. 112. One dollar is sufficient consideration to uphold a deed. 145 Ark. 310.

A meritorious consideration is sufficient to enlist the aid of a court of equity for reformation. 6 Pom. Eq. Rem. § 679, p. 1144; 23 R. C. L. § 40, p. 346; 34 Cyc. 940; 15 Ark. 519; 47 Am. Dec. 505; 47 N.J.Eq. 400; 10 S.E. 308; 39 S.W. 449; 91 S.W. 1027; 119 S.W. 414; 176 N.W. 42.

The deed was in the nature of a family settlement, and based on a meritorious consideration, and therefore capable of reformation. 4 Pom. Eq. Jur., § 1376, p. 2725; 2 Pom. Jur., § 781; 75 So. 770; 176 N.W. 43.

Even though the land be treated as a parol gift to appellee, the fact that Capt. Howard and others regarded the land as belonging to his wife, and she held possession thereof, is sufficient ground for reforming the deed. 96 Ark. 609.

Appellant is estopped by reason of his urging and acquiescing in the sale of the land by appellee. 39 Ark. 131; 37 Ark. 47; 10 Ark. 211; 24 Ark. 371; 85 Ark. 163.

A resulting trust arose by reason of the purchase of the land by appellee and the fact that she furnished the money for the erection of the house. 98 Ark. 452; 40 Ark. 67; 79 Ark. 69.

OPINION

MCCULLOCH, C. J.

This is an action instituted originally by Frances C. Howard, one of the appellees, against appellant and the other children and heirs at law of her deceased husband by a former marriage, to reform a deed conveying a certain tract of land in Union County. Appellant and the other defendants were non-residents of the State, and were summoned by warning order, and did not appear at the trial.

The action was begun in the year 1919, and at the September term, 1919, of the Union Chancery Court a final decree was rendered reforming the conveyance in accordance with the prayer of the complaint. Subsequently appellant purchased the interests of the other heirs, and then appeared in the chancery court and presented a petition asking that the decree be set aside and his defense allowed, and that upon a hearing of the cause the complaint be dismissed for want of equity.

The petition to set aside the decree was filed under the statute which provides that where a judgment has been rendered against a defendant constructively summoned and who did not appear, such defendant may at any time within two years after the rendition of the judgment appear in open court and move to have the action retried. Crawford & Moses' Digest, § 6266.

Appellant in his petition set up two defenses, viz: first, that no mistakes had been made in the description of the land; and second, that the conveyance sought to be reformed was a voluntary one, without valuable consideration, and that under these circumstances a court of equity should not reform it.

Appellee, Mrs. Howard, then filed a supplemental complaint, in which she alleged that, while the deed sought to be reformed recited a consideration of one dollar and love and affection, there were other considerations, and that she had, in fact, furnished the funds with which her husband had originally purchased the land, and that a trust resulted from the transaction, notwithstanding the deed was made to her husband.

On the final hearing of the cause the petition of appellant was dismissed, and he has appealed to this court.

The effect of the court's final action was to sustain the original decree declaring the title to the land in controversy to be in the appellee, Mrs. Howard, and, regardless of the form, we must so treat it. If the decree was correct from any viewpoint of the pleadings and evidence, it should be affirmed.

The deed sought to be reformed was one executed by D. C. Howard, appellant's father, to the appellee, Mrs. Howard, who was his wife. D. C. Howard was married three times, and appellant and his brothers and sisters were the children of his second wife, who was the owner of a tract of land in Union County containing 160 acres. Appellant and the other children inherited this land on the death of their mother, but D. C. Howard continued to occupy it after his wife's death. About the year 1890, D. C. Howard and Frances C. Howard, appellee, intermarried, and in the year 1895 the tract of land in controversy, containing 20 acres and described as the W 1/4 of E 1/2 of SE 1/4 of section 12, township 18 south, range 16 west, was purchased from one Hinson. This tract of land was unimproved and of small value, the price paid being $ 25 when Hinson conveyed it to D. C. Howard. It was adjoining the tract of land which appellant and the other children had inherited from their mother, and which they had, after their mother's death, conveyed to their father. The tract in controversy was purchased from Hinson by Howard for the purpose of building his residence on it, and immediately after the purchase a dwelling house, costing $ 1,000 to $ 1,200, was erected. D. C. Howard and his last wife, appellee, occupied this house until Howard's death in the year 1917.

In September, 1912, the deed sought to be reformed in this action was executed by D. C. Howard to his wife, the appellee. It conveyed another tract of land containing 40 acres not involved in this controversy, and also a 20- acre tract described as the E 1/2 of the E 1/2 of the SE 1/4 of said section 12. It is alleged in the pleadings and in appellee's testimony that there was a mistake in the description and that it was intended to convey the W 1/4 of the E 1/2 of the SE 1/4 of section 12, the tract purchased from Hinson.

About the time of the execution of this deed D. C. Howard made his will, in which he devised to appellant and the other children of his former wife, the tract of 160 acres, which the children had conveyed to him after the death of their mother.

Subsequent to the first decree, Mrs. Howard sold and conveyed the land in controversy to the other appellees, who afterwards were joined as parties to this action.

Mrs. Howard testified that when she married D. C. Howard she was a widow and had $ 100 in cash and a lot of cattle, which she turned over to her husband, and that the cattle were sold by her husband and the proceeds used. She testified that she furnished the sum of $ 25 with which the Hinson land was purchased, and that she also paid for the building of the house. She testified that her husband's deed to her was executed pursuant to a family settlement, in which it was agreed that he should convey the 20 acres of land in controversy to her as well as the other 40 not in controversy, and that the 160-acre tract which he obtained from his children should be devised to them free of any claim of her own for dower or otherwise.

She testified that when the deed was made it was the intention of the parties that it should describe the land which had been purchased from Hinson, but that she did not ascertain until after her husband's death that a mistake had been made in the description.

Mr Tatum, a justice of the peace, who prepared the deed, testified that he did so on Howard's request and at the latter's home on this particular land in controversy, and that Howard handed him the Hinson deed with instructions to copy the description from that deed, and that he intended to do so...