Levinson v. Treadway

• Decision Date: 21 January 1935
• Docket Number: 4-3668
• Parties: LEVINSON v. TREADWAY
• Court: Arkansas Supreme Court

78 S.W.2d 59

190 Ark. 201

LEVINSON v. TREADWAY

4-3668

Supreme Court of Arkansas

January 21, 1935

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

Coleman & Riddick, for appellant.

Charles B. Thweatt and C. W. Norton, for appellee.

OPINION

MEHAFFY, J.

On May 26, 1933, the appellee, Mamie Sanders Treadway, began this action in the Pulaski Chancery Court against the Union Trust Company, Mona Lois Briscol, Anne L. Robinson, W. E. Harding Henry Levinson, and Mrs. Henry Levinson. She alleged that she was 19 years old at the time of filing the suit; her name prior to May 24, 1917, was Virginia Van Winkle; she was a ward of the Arkansas Children's Home in Little Rock. On May 24, 1917, in the Pulaski Probate Court, John H. Sanders and his wife, Allie V. Sanders, both now deceased, being citizens and residents of Pulaski County, adopted the appellee under a judgment of the probate court. Appellee's mother appeared in open court and consented to the adoption. Appellee's father was dead at the time.

The judgment of adoption provided that John H. Sanders and Allie V. Sanders, his wife, adopted Virginia Van Winkle and that thereafter she should be regarded and treated in all respects as the child of John H. Sanders and Allie V. Sanders. The name of the child was changed to Mamie Virginia Sanders. The judgment also provided that J. H. Sanders and Allie V Sanders and the minor child should thereafter sustain toward each other the legal relation of parent and child, as provided by law. Appellee lived with J. H. Sanders and Allie V. Sanders, and was kept by them and treated the same as their own child, at their home at 101 Thayer Street in the City of Little Rock, which is lot 16 in block 4, Capitol View Addition to the city of Little Rock, until the death of said Allie V. Sanders, about April, 1921. The said Allie V. Sanders had no other child, and the appellee became her sole heir at law. She alleges that Allie V. Sanders was the owner of and in possession of, and at the time of her death, occupied said property as her home, which property thereupon descended to and vested in appellee as a homestead until she became 21 years of age; and that said property vested in her in fee simple title; that J. H. Sanders, in April, 1921, caused to be probated in the probate court what purported to be the last will and testament of Allie V. Sanders, in which will the entire estate, both real and personal, was devised to J. H. Sanders. Appellee was not provided for or mentioned in said purported will.

In 1921 said J. H. Sanders filed in the Pulaski Chancery Court a suit against appellee seeking to deprive appellee of any interest in the property of Allie V. Sanders, by alleging that Allie V. Sanders had held title to the above property in trust for him, and that the appellee had no interest in said property.

This suit was defended by Melbourne M. Martin, who was appointed by the court as guardian ad litem for appellee. There was a decision in the chancery court in favor of J. H. Sanders, and appeal prosecuted to the Supreme Court, where the decree was reversed and the case remanded for a new trial.

J. H. Sanders thereafter married, his wife being Maud H. Sanders. In September, 1923, the said J. H. Sanders executed a last will and testament, leaving to appellee such portion of his estate as she might be entitled to under the laws of the State, and enjoined upon Maud H. Sanders, his request that she become guardian of the child, etc.

John M. Davis was appointed executor of the estate of J. H. Sanders, deceased. It is alleged that J. M. Davis occupied a position of trust with regard to appellee; that Davis and Maud H. Sanders conceived a plan by which the Arkansas Children's Home would again have the custody and responsibility of appellee, and that they would at the same time deprive appellee of her inheritance; that the said J. M. Davis, as executor, falsely included in the inventory of the real estate of John H. Sanders, deceased, the property above described, and falsely represented to the Pulaski County Probate Court that Sanders had been the owner thereof; that Dr. O. P. Christian, the superintendent of the Arkansas Children's Home of Little Rock, was prevailed upon to become guardian of appellee for the sole and only purpose, as Davis and Mrs. Sanders declared to him, that the legal custody of appellee might be relinquished by Mrs. Sanders to the said Arkansas Children's Home, and as an inducement provided that said Maud H. Sanders would pay to the guardian, out of her individual resources, $ 1,000 for the benefit of appellee; and, upon these representations, the said Dr. Christian, on October 20, 1924, made application for and was granted letters of guardianship, and qualified as such, and then and there signed papers submitted to him by John M. Davis and his attorney, which Dr. Christian understood to be necessary to carry out the object for which he understood he had been appointed; that Dr. Christian was not advised by any one that appellee was the owner of the real estate above described, or that she had any interest in it or that she had any property whatever; but the papers which John M. Davis had previously caused to be prepared, and which were then signed by the said guardian, were not what he was told they were, and the guardian unknowingly and innocently signed a petition, asking authority of the probate court to make sale of appellee's title to real estate above described, stating in the petition that the title to said property was doubtful and disputed, and could not be sold for any substantial sum; and that there would be litigation, and appellee had no means to combat litigation, and the said Davis offered to pay for the disputed claim to said property $ 1,000, in order to clear the title thereto, and that it was to the best interest of appellee that said offer be accepted. At the same time the said guardian unknowingly and innocently executed what purported to be a guardian's deed to the property above described; that a fraud was practiced on the probate court; that it was alleged in the petition for an order to sell that the property belonged to J. H. Sanders and his wife, Allie V. Sanders, when in truth and in fact said Allie V. Sanders was the sole owner thereof; that, after the Supreme Court of Arkansas had reversed the decree of the Pulaski Chancery Court, the said J. H. Sanders had abandoned all claim to said property; the property was worth at the time $ 7,000, and in less than a year said John M. Davis sold said property for $ 6,750; that because of the fraud practiced the order of the probate court and the deed were void.

Appellee then sets out numerous other reasons for alleging that the orders of the probate court and the deed were void, but we deem it unnecessary to set out the complaint more fully.

Separate answer was filed by the Union Trust Company, Henry Levinson, and Mrs. Henry Levinson, denying the material allegations of appellee's complaint.

The following agreement was entered into:

"1. In this cause, it is agreed between the parties plaintiff and defendant:

"2. That Mr. R. E. Block, of Block Realty Company, 306 West Third Street, Little Rock, Arkansas, would testify in behalf of the plaintiff that he has been engaged in the real estate business, including real estate rentals, for more than twenty years prior to this date, and is personally familiar with the rental value of residence properties in the city of Little Rock throughout the years 1924-34, inclusive; also that his company was, for a part of the said period, the rental agent for the dwelling located at 101 Thayer Street, Little Rock which is described as lot sixteen (16) of block four (4) of Capitol View Addition to the city of Little Rock, and, through the records of his office and reports made to him by the employees in his office, he considers himself well informed as to the rental value of the said property; and that, in his opinion, the fair and reasonable value thereof for the time mentioned has been as follows: From October, 1924, to the fall of 1929, approximately $ 50 per month; from the fall of 1929 to the spring of 1932, approximately $ 37.50 per month; and from the spring of 1932 to the date of this stipulation, approximately $ 25 per month.

"3. It is further agreed that the defendant Henry Levinson, and those under whom he claims, have held possession and control of the said property since October 24, 1924.

"4. It is further agreed that the public records of Pulaski County show that the defendants, or those under whom they claim have paid general and special taxes against the said property, as follows:

"General taxes for the years 1924-1929, inclusive

$ 452.72

(All paid before May 24, 1930)

"Broadway Bridge for the years 1925-1930,

inclusive

67.26

(All paid before May 24, 1930)

"Street Improvement District No. 413 for

1925-1931, inclusive

406.70

($ 290.50 paid before, $ 116.20 paid after May

24, 1930)

"Street Improvement District No. 373 for

1924-1931, inclusive

8.96

($ 7.84 paid before, $ 1.12 paid after, May 24,

1930)

"Sewer District No. 94, for 1924-1931, inclusive

47.60

($ 44.20 paid before, and $ 3.40 paid after, May

24, 1930)

Total

$ 983.24

"5. It is further agreed that the defendant, Henry Levinson, would testify, in behalf of the defendants, that he has expended for insurance premiums upon said property the sum of $ 120.37, and for repairs the sum of $ 387.64.

"6. It is agreed that this stipulation may be used in lieu of the testimony of witnesses and in lieu of the actual public records, but subject to correction if error be disclosed by comparison with the public record; and subject to exception for incompetency, irrelevancy and...