McCullough v. Leftwich
| Decision Date | 25 April 1960 |
| Docket Number | No. 5-2130,5-2130 |
| Citation | 334 S.W.2d 707,232 Ark. 99 |
| Parties | David R. McCULLOUGH, Appellant, v. Norma L. LEFTWICH et al., Appellees. |
| Court | Arkansas Supreme Court |
J. H. Evans, Booneville, for appellant.
R. S. Dunn, Booneville, for appellees.
This is a suit by appellees seeking reformation of a deed. The lower court granted the relief which appellees sought and this appeal followed.
On February 14, 1944, C. E. Mills (now deceased) and the appellant, David R. McCullough, entered into a written contract for the purchase of 480 acres of land in Logan County. This contract provided that McCullough was to pay Mills for the land over a period of years in installments, and that a clear title to the land would be delivered to McCullough by Mills upon receipt of the last installment subject, however, to the following reservation in the contract of the mineral rights in all of the 480 acres of land: 'It is agreed and understood by all parties concerned that all oil, gas or/and mineral rights are reserved in, on and under the land described in this contract, and no oil, gas or mineral rights go to the party of 2nd part herein.' McCullough was the second party referred to. Before all payments under the contract were completed, Mills died and his wife, acting as the personal representative of his estate, petitioned the probate court for permission to carry out the terms of her husband's contract with McCullough and deliver title to McCullough upon receipt of all payments. The court granted this petition and on August 11, 1951, a deed was given by the personal representative, joined in by the heirs at law of the deceased, Mills, giving the appellant McCullough, surface title to all the land and also mineral rights to the 80 acres now in dispute. In June of 1956, McCullough conveyed the surface rights to the 480 acre tract and reserved the mineral rights in this 80 acres to himself. On January 28, 1958, the appellees, heirs at law of C. E. Mills, Sr. and Maude Mills, both deceased, filed suit against McCullough to reform their deed of August 11, 1951 alleging that the 80 acres of mineral rights were conveyed to McCullough through mistake. The trial court granted appellees this relief and this appeal followed.
For reversal, appellant relies on the following points: '(1) The findings, conclusions and decree of the trial court were not supported by substantial evidence and on the case as a whole the appellees failed to prove they were entitled to the relief sought by clear and convincing evidence (2) The trial court erred in permitting appelles to introduce additional evidence after the filing of appellant's motion to dismiss because of insufficiency of the evidence (3) The trial court erred in failing to sustain appellant's motion to dismiss at the time it was filed (4) The trial court erred in overruling appellant's motion to dismiss after allowing appellees to introduce additional testimony.'
(1)
Appellant's principal contention is that the appellees failed to meet by clear and convincing evidence the burden of proof that a mutual mistake had occurred. A review of the record presented discloses the following facts: Mrs. Callahan, a longtime secretary of Mr. C. E. Mills, testified that she drew the original contract between C. E. Mills and David R. McCullough to execute the deed and that the copy attached to the petition of appellees was a true and correct copy of the original contract, which, as above indicated, reserved the mineral rights in the 480 acres of land. Mrs. Phillips, the deputy circuit clerk, testified that a copy of the probate proceedings, above referred to, was true and correct. This order of the probate court, approving execution of the deed to Mr. McCullough, contained a specific reservation of the mineral rights, and gave authority to the administratrix to convey only the surface rights of the 480 acres. The reservation was...
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...had orally acknowledged the Gibsons' right to the minerals upon paying for the land in full. The Stalters rely on McCullough v. Leftwich, 232 Ark. 99, 334 S.W.2d 707 (1960), Black v. Been, 230 Ark. 526, 323 S.W.2d 545 (1959), Pennington, supra, and other cases in which our courts affirmed t......
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