Mayers v. Lark

• Decision Date: 01 June 1914
• Docket Number: 7
• Citation: 168 S.W. 1093,113 Ark. 207
• Parties: MAYERS v. LARK
• Court: Arkansas Supreme Court

168 S.W. 1093

MAYERS v. LARK

113 Ark. 207

No. 7

Supreme Court of Arkansas

June 1, 1914

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; reversed.

Decree reversed.

Joseph M. Hill and Henry L. Fitzhugh, for appellants.

1. The record conclusively shows that the property was bought and paid for by Mrs. Mayers. The fact that the deeds were made to her, while not conclusive, raises a strong presumption in her favor, which can only be overcome by the clearest and most positive proof. The fact that Doctor Mayers, during the sixty years of their married life, never asserted any claim or title in himself, is strong proof that he had no rights to assert; and if he was satisfied to let the title remain in his wife, even if the property had been bought by him, this fact is binding on his heirs.

The testimony utterly fails to establish a resulting trust in favor of Doctor Mayers, but falls entirely below the requirements of the law, that the proof must be full, clear and convincing. 89 Ark. 185; 75 Ark. 445; Id. 556; 76 Ark. 14; 67 Ark. 354.

2. If Doctor Mayers purchased the property and paid for it with his own funds, his having taken, or caused the title to be taken in the name of his wife, will be treated in law as an advancement or gift, and her title as good. 104 Ark. 304; 73 Ark. 281; 89 Ark. 579; 76 Ark. 389; 89 Ark. 182.

Pryor & Miles, for appellees.

1. The preponderance of the evidence establishes the fact that the property was conveyed to Mrs. Ayers, in trust; that the deed was made to her at the request of her father, who, at that time, was involved in bankruptcy proceedings. No necessity or reason existed why she should have held the property as trustee for her mother, nor any reason shown why, if her mother purchased the property, the deed should not have been made directly to her. The evidence shows that the lot Mrs Mayers really purchased with her own funds, a legacy from a deceased relative, was deeded directly to her; and the mere fact that the daughter afterward conveyed the property in question to her by deed would not vest her with the equitable title, since the daughter could convey no better title than she herself possessed. The chancellor's findings will not be disturbed unless clearly contrary to the preponderance of the evidence. 44 Ark. 216; 76 Ark. 252.

Under the law as it existed at the time of the purchase, even if it had been made with the funds of the wife, it would become the property of the husband. 84 Ark. 359; 80 Ark. 381.

There is no evidence that Mrs. Mayers ever asserted any title to the property adverse to her husband. The mere fact of his knowing that the trusteeship had been changed from his daughter to his wife, would not bar or estop his heirs from claiming his interest in the property. 63 Tex. 432; 45 Am Dec. 391.

2. From the time of the conveyance from Johnson to Mrs. Ayers, the property was impressed with the trust relationship existing between Doctor Mayers and Mr. Ayers. The fact of the existence of the constructive or resulting trust is, in effect, admitted. The only question to be determined is whether Mrs. Ayers held as trustee for her father or her mother. She says for her father, and her testimony is amply supported.

OPINION

MCCULLOCH, C. J.

The subject-matter of this controversy is a lot on Garrison Avenue, in the city of Fort Smith, and plaintiffs, who are appellees here, are endeavoring to prove that the title is held in trust by their mother, who was one of the defendants and who died while the cause was pending in the court below. The action was instituted at law by the plaintiffs, Mrs. H C. Lark and Mrs. V. L. McCoy, against their mother, Mrs. Mary L. Mayers, and her three other daughters, Mrs. Rapley, Mrs. Rogers and Mrs. Linde, the object of the suit being to have the property partitioned.

The cause was transferred to the chancery court, and proceeded to final decree, from which an appeal has been prosecuted to this court.

The plaintiffs, in their amended complaint, alleged that the property in controversy was purchased by their father, Michael Mayers, from one Raphael M. Johnson, and, at his instance, conveyed to his daughter, Harriett C. Lark, one of the plaintiffs, with the understanding and agreement that the latter should hold the title for him (the said Michael Mayers), and that subsequently, towit, in the year 1874, said Harriett C. Lark executed a deed by which she intended to convey the property to her father, said Michael Mayers, but by mistake conveyed the same to his wife, Mrs. M. L. Mayers, one of the defendants.

The prayer of the complaint was that defendant, Mrs. Mayers, be declared a trustee holding the legal title for the benefit of plaintiffs and other children of said Michael Mayers, and that the court divest the title out of said trustee and vest it in said children.

The suit embraced other property in the State, but which was afterwards eliminated from the litigation.

Mrs. Mayers and the other defendants answered, denying that the property in controversy was purchased by Michael Mayers, or that he had any interest therein save as the husband of said Mrs. M. L. Mayers, and denied that there was any mistake with reference to the conveyance. They alleged that the property was purchased by said Mary L. Mayers with her own funds, and that the title was conveyed to her daughter, Mrs. Lark, then Mrs. Ayers, to hold for her, and that subsequently, at her request, Mrs. Lark conveyed the property to her. Mrs. Mayers also pleaded that she had been in undisputed possession of the property for more than forty years, and had paid taxes thereon during that time and up to the commencement of this action.

The original complaint was filed and summons was issued on April 28, 1909.

The depositions and proof in the case, at least, most of it, was taken prior to the death of Mrs. Mayers, which occurred in March, 1912.

During the pendency of the action, Mrs. Mayers conveyed the middle third of the lot to her daughter, Mrs. Linde, and the east third thereof to her great granddaughter, Eleanor May Anderson, who was a child four or five years old. After the death of Mrs. Mayers, the guardian of Mrs. Linde, who had been adjudged to be non compos mentis, intervened in the action and asserted title under said conveyance; and also the guardian of the child, Eleanor May Anderson, applied to be made a party, also claiming the portion of the lot conveyed to her. They were accordingly made parties.

Mrs. Mayers resided in Texas at the time of her death, and the probate court there appointed an administrator, and the chancery court revived the case in the name of said special administrator.

The order of revivor in the name of the special administrator was improper, for title to land being involved the cause should have been revived in the name of the heirs; but inasmuch as the heirs were all parties to the action and were actively litigating the cause, and the two grantees in the conveyances of Mrs. Mayers were made parties subsequent to her death, the error in the order of revivor is unimportant.

Michael Mayers and his wife, Mary L. Mayers, intermarried in the year 1848 at Fort Smith, Arkansas, and lived there continuously until a few years after the close of the war between the States. Michael Mayers was a druggist and was called Doctor Mayers. The property in controversy was purchased from one William Sweeney in ...