Kelly v. Keith

• Decision Date: 04 November 1905
• Citation: 90 S.W. 150
• Parties: KELLY v. KEITH.
• Court: Arkansas Supreme Court

Page 150

90 S.W. 150

KELLY v. KEITH.

Supreme Court of Arkansas.

November 4, 1905.

Appeal from Hot Spring Chancery Court; Leland Leatherman, Chancellor.

Action by Martha Kelly against John W. Keith; certain others being made defendants by the answer and cross-complaint of Keith. Decree for defendant Keith. Plaintiff appeals. Affirmed.

Nicholas Miller, a resident of Hot Spring county, died in the year 1880, intestate, the owner of the tract of land in controversy containing 80 acres, which was assigned, as a part of her dower, to his widow, who died in 1901. He left surviving eight children; among the number being Mrs. Mary J. Kelly, one of the defendants, and S. Thomas Miller. Appellee, John W. Keith, purchased the several interests in the lands of the other six children before the death of the widow, and also purchased the interest of Mrs. Mary J. Kelly in 1886. Under the erroneous impression that her brother S. Thomas Miller was dead, and that she had inherited a portion of his interest in the land, she conveyed to appellee an undivided one-seventh, instead of one-eighth. She discovered afterwards that S. Thomas Miller was still alive; and, appellee asserting a liability to him for the value of the additional interest which her deed of conveyance purported to convey, she entered into an agreement in writing with appellee (the agreement being evidenced by letters which passed between the parties) whereby she undertook to purchase for appellee the interest of her brother S. Thomas Miller in the land, in consideration of the sum of $50 to be paid to her, and the extinguishment of her alleged liability to appellee, which was estimated to be $50. According to the terms of this agreement, Mrs. Kelly was to procure the conveyance to be made to her by her brother, who, it was thought, would object to selling to appellee, and that appellee was to furnish the money with which to make the purchase. It was understood between them that the interest could be purchased for $300. Mrs. Kelly subsequently purchased the interest of her brother, took the deed to herself, reciting consideration of $350, but refused to convey to appellee. She afterwards conveyed the interest to her son Gus Kelly, and the latter conveyed it to E. H. Vance, Jr., who, in turn, conveyed it to appellant Martha Kelly, the wife of Gus Kelly. Appellant instituted this suit against appellee, setting forth her claim of title to one-eighth of the land under the aforesaid conveyances, and prayed an accounting of the rents and profits, and that the land be divided between them according to their respective interests. She alleged that said Mary J. Kelly intended to execute said conveyance to her (appellant) for the benefit of her children, who were the grandchildren of said Mary J., instead of conveying to Gus Kelly. Appellee filed his answer and cross-complaint, to which said Mary J. Kelly, E. H. Vance, Jr., and Gus Kelly were made defendants, setting forth his contract with said Mary J. Kelly concerning the purchase of the interest of S. Thomas Miller. He also alleged that Mary J. Kelly paid to said Miller the sum of $300 only for said interest, and that he had tendered to her that sum, together with the sum of $50, which he had agreed to pay as commission, and stood ready to pay any sum which the court found that she paid to said Miller, and said $50 commission. He prayed that...