Knight v. Glasscock

• Citation: 11 S.W. 580,51 Ark. 390
• Parties: KNIGHT v. GLASSCOCK
• Decision Date: 11 May 1889
• Court: Arkansas Supreme Court

11 S.W. 580

51 Ark. 390

KNIGHT v. GLASSCOCK

Supreme Court of Arkansas

May 11, 1889

APPEAL from Green Circuit Court, T. P. McGOVERN, Special Judge.

Judgment reversed.

L. L Mack, for appellant.

1. If the deed was void for uncertainty, still it is a memorandum in writing reciting a sale of land for value paid. This with possession is equivalent to a title bond, and imposed upon Hunt the obligation to specifically perform by describing the lands properly.

2. The return of the deed to Hunt did not reconvey the land, nor release him from reforming. 34 Ark. 503.

3. Glasscock purchased with notice and takes subject to appellant's equities Story Eq. Jur., secs. 785, 788-9 790.

4. There is no proof of Ritter's insolvency. Creditors only can stack a deed in fraud of their rights.

E. F Brown, for appellee.

1. Recitals in a deed of payment of purchase money is no evidence of the fact of its payment as against third persons. 70 Am. Dec., 137; 45 Ark. 81.

2. It is patent upon the face of the deed that it is void. 51 Texas, 615; 41 Ark. 497.

3. In a contest between a wife and a husband's creditors, a natural presumption arises that the husband furnished the means of payment. 46 Ark. 542.

4. Hunt not being a party, the deed cannot be reformed.

OPINION

HEMINGWAY, J.

Glasscock, the appellee herein, brought ejectment in the Green circuit court against Aaron Knight, one of the appellants, for the possession of two acres of land. He claimed title under a deed from R. W. Hunt, dated Dec. 10th, 1883.

Mary Knight, the other appellant, was made a party to the cause, she claiming to have acquired the land by prior deed from R. W. Hunt.

She and the defendant, who is her husband, filed a joint answer and counter-claim, in which are the following allegations: That Mary Knight purchased the land in controversy from, R. W. Hunt, and took deed dated Feb. 26th, 1883; that by accident or mistake the land was not correctly described in the deed; that she took possession under the deed and had held and occupied the land ever since; that Glasscock purchased with knowledge of her purchase and possession; that she paid Hunt for the land $ 100, which Glasscock knew also; that he purchased the land with a fraudulent intent to deprive her of it, and his deed was void. They ask that the answer be treated as a counter-claim against plaintiff; that plaintiff's deed be cancelled, and that the deed to Mary E., be so reformed as to describe the lands according to the intent of the parties in making it, and perfect title be vested in her. They exhibit the deed to Mary E., which is the form of warranty deed in ordinary use in this State; in it the lands are described as situated in Green county and as follows: "One lot or parcel of land commencing at southeast corner of said lot at stake, north 8 (4) chains 86 links to eight mile creek, thence at south-east corner of said lot running west 68 north (4) chains and 50 links to a stake on bank of creek, thence north-east direction with creek to east line, said lot to contain two acres."

To this counter-claim the plaintiff replied, denying that Mary E. purchased the lands described in the complaint, or that she is the owner thereof, or has an interest therein by purchase from Hunt, or that she paid him anything of value in purchase thereof. He alleges that if there was a pretended purchase by her, it was fraudulently obtained for the purpose of cheating and defrauding the creditors of Chris. Ritter, who was at that time the husband of Mary E., and that no valuable consideration moved from her in said purchase. He denies that Mary E. took possession of the land under a purchase, or that the land was improved or capable of occupancy. He alleges that he is a bona fide purchaser for a valuable consideration, and asks that the deed to Mary E. be cancelled.

The cause was never formally transferred to equity, but further proceedings were had as in equity.

The depositions of the several parties, of Hunt, Ritter and other witnesses, were taken and read in evidence at the hearing and without any objection.

The court made special findings of facts, as follows: that the land was purchased and the money paid by Chris. Ritter; that at the request of Chris. Ritter and in order to prevent his creditors from seizing the land Hunt attempted to convey it to Mary E. who was then the wife of Chris.; that the deed was inoperative because the description of the land was uncertain; that Chris. Ritter afterwards, for value, sold and conveyed the land to Glasscock.

Upon this finding, judgment was rendered for plaintiff, and the counter-claim dismissed; from which judgment the defendants prosecute this appeal.

Mary E. was the wife of Chris. Ritter when the deed was made in February, 1883; they separated some time about ten months afterwards, and she then married Aaron Knight.

It is not denied that the parties intended to describe in the deed to Mary E. the lands described in the deed to Glasscock.

Although the plaintiff charges in his reply that the deed was made to Mary E. with intent to defraud the creditors of Chris. Ritter, the charge is made only in general terms and no facts are alleged as constituting the fraud. It is not alleged that Chris. Ritter was then involved financially, or in fact that he was in debt at all; nor that he owned no other property, nor even that the consideration for this purchase came from him.

The proof does show that he paid for the land, and that he owed Glasscock a small debt; but establishes no other indebtedness and fails to make out insolvency. This does not make out a case of fraud.

We are satisfied from the proof that the parties intended to describe in the deed from Hunt to Mary E. the land in controversy; that they considered the terms employed effective for that purpose; that from the time of the execution of this deed until the deed was made to Glasscock Mary E. was in the actual occupancy of the land; and that. Glasscock took his deed with a full knowledge and understanding of these facts. Such being the facts, it must follow, that if the deed to Mary E. possessed any validity, Hunt had parted with his title and could convey nothing by his deed to...