Kingrey v. Wilson

• Citation: 301 S.W.2d 23,227 Ark. 690
• Decision Date: 15 April 1957
• Docket Number: No. 5-1250,5-1250
• Parties: Homer and Wilma KINGREY, Appellants, v. Bernice WILSON, Appellee.
• Court: Supreme Court of Arkansas

Page 23

301 S.W.2d 23

227 Ark. 690

Homer and Wilma KINGREY, Appellants, v. Bernice WILSON, Appellee.

No. 5-1250.

Supreme Court of Arkansas.

April 15, 1957.

Rehearing Denied May 13, 1957.

Terral & Rawlings and John T. Haskins, Little Rock, for appellants.

C. M. Carden, Benton, for appellee.

HOLT, Justice.

Appellee, Bernice Wilson, brought this suit against Homer Kingrey and his wife, appellants, to cancel a warranty deed dated December 13, 1955, which she gave to appellants. This deed for a consideration of $1,000 conveyed 4.4 acres of land, with the exception of a parcel 100' X 110' on which appellee's home (or dwelling) was located. She alleged in her complaint that this deed was procured from her through misrepresentation and fraud and that she received no consideration whatever. She asked that this deed be cancelled and set aside. Appellants answered with a general denial and also filed a cross complaint alleging that the suit was brought by appellee 'maliciously and without probable cause' and sought damages.

Trial was had and following an extended and patient hearing the court found: 'That the aforementioned deed conveying the above described property should be set aside for two reasons; fraudulent misrepresentations and total lack of consideration. The court finds that there was a relationship of trust and confidence between the plaintiff and the defendants and that this confidential relationship was taken advantage of by the defendants through their misrepresentations and procured the execution of said deed by virtue of the misrepresentations; that in addition there was a complete lack of consideration for the execution of said deed. That said deed should be set aside for both reasons.'

For reversal appellants rely on the following points: '1. The evidence is not clear, unequivocal and decisive to warrant setting aside the solemn recitals of a deed nor to warrant the court's findings of fraudulent misrepresentation, lack of consideration and existence of confidential relationship between plaintiff and defendants. 2. The court erroneusly varied the terms of a deed upon the finding of no consideration for a voluntary conveyance and in effect found a resulting trust to exist which findings were erroneously based upon parol testimony. 3. The court erred in failing to grant defendants' motion to dismiss plaintiff's complaint as a matter of law after plaintiff failed to answer the request for admissions under oath and in permitting plaintiff to answer such questions at the trial. 4. The court erred in failing to grant defendants a continuance at the close of plaintiff's testimony and in failing to strike the testimony not in conformity with the plaintiff's pleadings. 5. The court erred in not permitting appellee to be cross-examined on whether or not she and her ex-husband were living together in adultery.'

1 and 2

After a review of all the testimony we have concluded that it is sufficient to support the findings and decree of the trial court, however, on trial de novo here we have elected to affirm the decree on a different ground, that is, that the testimony shows that appellee was the beneficiary of a constructive trust which was shown to exist in the property described in the above deed, which she gave to appellants. We hold that appellee has met the burden of showing this by proof that is clear and convincing. See Walker v. Biddle, 225 Ark. 654, 284 S.W.2d 840.

The record reflects that appellee and her husband were divorced November 10, 1955. Prior to the divorce her husband had on September 1, 1955, deeded the land here involved to her. The appellants lived across the road from appellee and they became her very close personal friends and she relied strongly on Kingrey for advice. Appellee and her two children moved into appellants' home at their request, where they lived with them for about four months.

Appellee testified [appellants' brief]: 'There was talk my husband would resue and take the property. Mr. Kingrey said he could fix it where he couldn't get the property. We talked over conveying the property to Mr. Kingrey to keep Mr. Wilson from getting the property. * * * Ernest Briner made out the deed. Mr. Briner said just in case something went wrong he would make out the deed for $3,500 where I could have something for the land. I went to Mr. Briner's office with Mr. Kingrey on Friday or Saturday and went back on Tuesday evening and signed it. I did not notice what kind of deed I signed. I did not receive anything for the deed. I held the deed for awhile before delivering it to Mr. Kingrey. I didn't know until this year when my former husband came back and we were talking about it that the deed had been recorded. I gave Mr. Kingrey the money to pay the delinquent taxes. He redeemed the taxes in his name. * * * There was talk all around that my husband was going to take the property from me and the children. We talked it over and they were going to hold the property until this was settled and then it would be given back to me. * * * We were offered $7,500 for the whole place not long ago. That was about two or three years ago. * * * Mr. Kingrey's exact statement concerning M. J. Wilson taking the land away from me was to fix it in his name to keep for me and then he could not get it and when this was over I would have the land. This statement was made a week or so before December 13, 1955, the date the deed was signed. When this statement was made Aaron Johnson and wife, Mildred Johnson, Charlie Allen and Mrs. Allen and Bill LaGue were present. * * * My sole purpose in executing the deed was to hold the property where my husband couldn't take it. * * * I never received one dime of the consideration stated in that deed.'

Mr. Wilson, appellee's ex-husband, tended to corroborate appellee. 'Q. He [Kingrey] did state that he was going to give the land back? A. He said 'I am going to give it all back to Bernice [appellee].'' Aaron Johnson, on behalf of appellee, testified [appellants' abstract]: 'I know the defendants [appellants] and plaintiff [appellee]. I was present when they were discussing making out a deed to Mr. Kingrey to keep M. J. from resuing and getting the...