Mack v. Marvin

• Court: Arkansas Supreme Court
• Writing for the Court: Robins, J.
• Citation: Mack v. Marvin, 202 S.W.2d 590, 211 Ark. 715 (Ark. 1947)
• Decision Date: 19 May 1947
• Docket Number: 4-8188
• Parties: Mack v. Marvin

202 S.W.2d 590

211 Ark. 715

Mack v. Marvin

No. 4-8188

Supreme Court of Arkansas

May 19, 1947

Rehearing Denied June 23, 1947.

Appeal from Washington Chancery Court; John K. Butt, Chancellor.

Affirmed in Part and Reversed in Part.

Charles D. Atkinson and Chas. W. Atkinson, for appellant.

G T. Sullins, Rex W. Perkins, O. E. Williams, Karl Greenhaw Peter G. Estes and Price Dickson, for appellee.

OPINION

Robins, J.

The instant suit is an effort on the part of appellant, Miss Isabella Mack, aged 82, to recover $ 5,000 for balance of purchase money admittedly due to her on the sale of her home, a forty acre tract near Fayetteville, Arkansas. Having been denied any relief in the lower court, she has appealed.

In her complaint, which named as defendants the appellees, R. H. Marvin and his wife, Mabel J. Marvin, Fulbright Investment Company, George F. Caudle and his wife, Thelma Caudle, appellant alleged that she sold the land on March 20, 1946, to appellee R. H. Marvin, acting as agent for appellees Fulbright Investment Company and George F. Caudle and wife, for $ 7,800, of which she was paid $ 2,800, and for balance she received two checks drawn by appellee Marvin on a Fayetteville bank, each for $ 2,500 and dated, respectively, May 15, and June 15, 1946; that when she accepted these post-dated checks appellee Marvin showed her a statement of his bank account, reflecting that at the time he had about $ 9,000 on deposit in the bank on which the checks were drawn; that when she presented the checks for payment the bank refused to pay same because appellee Mabel J. Marvin, wife of R. H. Marvin, had withdrawn all balance in said account, it being payable to either appellee Marvin or his wife; that in 1944, appellees R. H. Marvin and Mabel J. Marvin had acquired a forty-five acre tract, described in the complaint, in Washington county, conveyance having been made to both of them; that after appellee Marvin obtained deed from appellant for her property he, for the purpose of cheating and defrauding appellant, conveyed said jointly owned tract to his wife.

Appellant prayed for judgment against all of the appellees for $ 5,000, asked that same be declared a lien on the lands sold by appellant to appellee Marvin, and she also prayed that the deed executed by appellee Marvin to his wife be set aside and a lien declared on the land therein described in favor of appellant for the amount of her judgment. Notice of lis pendens was filed by appellant.

In their answers appellees Caudle and wife and Fulbright Investment Company denied that appellee Marvin was their agent in purchasing the property from appellant, and alleged that they, without any notice that appellee Marvin had failed to pay the purchase money to appellant, bought the land from him and paid him therefor.

Appellee Marvin entered his appearance, but filed no answer. His wife's answer was a general denial.

To sustain the issues on her part appellant offered the testimony of appellee Marvin, herself, Berry Vaughn and Richard B. Greer.

Appellee Marvin testified that he obtained the deed (which recited payment of consideration in full) from appellant, paying a total of $ 2,800 in cash and bonds and turning over to her the two checks referred to in the complaint; that he sold thirty-five acres of the property to appellee Fulbright Investment Company and five acres to appellee Caudle; that he conveyed his interest in the forty-five acre tract (purchased by him and his wife) to his wife; that the transaction with appellant was "individual"; that the checks were post-dated "because the wife and I needed the money to use on the place"; that he did have on deposit at that time enough money to pay the checks; that the principal part of the money obtained from appellant's property went to pay for construction of the house he and his wife were building; that after spending this money he borrowed $ 14,400 and deposited that in the joint account, but his wife, without his knowledge, drew out the amount of the account, thus causing the checks given to appellant to be dishonored; that in selling appellant's property to Caudle and Fulbright Investment Company he made a profit of $ 900; that he was not the agent of Fulbright Investment Company and Caudle; that appellee Mabel Marvin was a bookkeeper before her marriage; that the property where he and his wife lived was their homestead; "that there was no part of this transaction that Mrs. Marvin was not totally familiar with"; that the homestead of himself and wife was worth $ 65,000; that Miss Mack didn't need the money and we did; that his wife knew all about these transactions. This witness introduced in evidence copies of the conveyances involved, including the deed executed by appellee Marvin to his wife, filed for record on July 19, 1946, by which he conveyed the forty-five acre home place to her. (An estrangement between appellees Marvin and his wife, with consequent suit for divorce by her, seemed to have occurred after the transaction with appellant.)

Appellant testified that when appellee Marvin gave her the post-dated checks and obtained the deed from her he told her the checks would be paid and at the same time showed her a bank statement showing he had on deposit in the bank on which these checks were drawn between eight and nine thousand dollars; that the checks were returned to her unpaid by the bank.

Berry Vaughn, vice-president of the bank on which the checks were drawn, introduced ledger sheets showing the account of appellees R. H. Marvin and wife. This account showed deposits of $ 7,500 and $ 1,200 on March 21, 1946, these deposits presumably covering proceeds of purchase money obtained from appellees Fulbright Investment Company and Caudle; and also showed subsequent withdrawals which reduced the balance to $ 396.23 on May 8, 1946, after which the account continued to show a small balance until June 29, 1946, when a deposit of $ 14,400 was made, which was all withdrawn by July 5, 1946; that, judging from endorsements on the two $ 2,500 checks drawn in favor of appellant by appellee Marvin, these checks were presented to his bank on July 13, 1946.

Richard B. Greer, circuit clerk, identified the deeds involved and testified as to the time of recording same.

Appellant, being recalled, testified that appellee Marvin had given her his promissory note for $ 5,500 in lieu of the checks, but that she returned the note to Marvin and kept the checks.

At the conclusion of the testimony on behalf of appellant, appellees Mabel J. Marvin, George F. Caudle and wife and Fulbright Investment Company filed demurrers to the testimony and asked for dismissal of the complaint. The lower court sustained these demurrers and rendered decree dismissing appellant's complaint.

We have heretofore, on motion of appellant, dismissed her appeal as to appellee George F. Caudle and wife.

There is no testimony indicating that appellee Fulbright Investment Company, in buying the thirty-five acre tract from appellee Marvin, after he had obtained from appellant conveyance to himself reciting full payment of purchase money, was other than an innocent purchaser for value. The lower court therefore properly dismissed the complaint as to it.

The action of appellees in filing demurrers to the testimony introduced by appellant was, under our opinion in the case of Kelley v. Northern Ohio Company, 210 Ark. 355, 196 S.W.2d 235, equivalent to a submission of the case for final decision on the testimony offered by appellant. In the Kelley case, supra, we construed Act 257 of 1945 and considered the effect of a demurrer by defendant to evidence offered by plaintiff in a chancery case. We there said "that the appellees [defendants] waived the right to introduce proof by moving for a decree." Therefore, we treat the case between appellant and appellees Marvin and wife as having been fully heard and finally disposed of by the court below.

The net effect of the testimony in this case is:

Appellant delivered to Marvin a deed, reciting payment in full of purchase money, conveying to him property worth $ 7,800, and receiving therefor $ 2,800 in cash and bonds and post-dated checks for $ 5,000 which proved worthless. When Marvin, a few days after obtaining the deed from appellant, conveyed this property to Caudle and Fulbright Investment Company he collected from them in cash $ 8,600. Instead of using this money, which arose from appellant's property, to pay her the balance of $ 5,000 on the purchase money which he owed her, he and his wife used this money in improving real estate jointly owned by them, the interest of appellee Marvin therein having been conveyed to his wife before the due date of the post-dated checks. Mrs. Marvin had full knowledge of all these transactions. She was not ignorant of business affairs, having been an accountant before her marriage.

If the decree of the lower court is affirmed it means that Miss Mack has irretrievably lost $ 5,000 and that appellee Marvin and his wife have been unjustly enriched at Miss Mack's expense in the same amount.

Appellee Marvin and his wife did not deny this unjust enrichment. He filed no answer, but in his testimony sought to justify his conduct on the ground that his wife was to blame for the situation, because she withdrew from the bank the funds from which the post-dated checks could and should have been paid and it is urged on behalf of appellee Mabel J. Marvin that she did not owe appellant anything and that she was within her rights when she, with full knowledge of the obligation to pay appellant the amount of the post-dated checks, withdrew the balance in the...