McKneely v. Terry

Decision Date18 January 1896
Citation33 S.W. 953
PartiesMcKNEELY et al. v. TERRY et al.
CourtArkansas Supreme Court

Suit by Mollie C. Terry and another against Mattie McKneely and others. From a judgment for plaintiff Terry alone, for only a portion of the relief sought, both parties appeal. Reversed.

Plaintiffs Mollie C. Terry and John D. Trigg, as the only heirs of John P. Dickson, deceased, seek to cancel a deed executed by him to Samuel W. McKneely to what is known as the "John Dickson Place," in Miller county, Ark. They say that said deed was procured through fraud and undue influence of McKneely, and that he, on being charged with the fraud, entered into a written obligation, in 1869, with David H. Dickson, by which he was to convey said place to the heirs of John P. Dickson, to wit, David H. Dickson, John D. Trigg, and Lavinia McKneely, wife of the said S. W., and that by said agreement he was to retain possession of the lands, having the exclusive enjoyment of the rents and profits for three years, when he was to surrender same to said heirs; that, in pursuance of said contract, in 1873, he surrendered said place to David H. Dickson, the father of plaintiff Mollie C., and guardian of plaintiff John D.; that David H. Dickson died in 1873, in possession; and that, soon thereafter, McKneely secretly abstracted said written obligation from the widow of the said David H. Dickson, and fraudulently repossessed himself of said lands. The bill alleges the death of Mrs. Lavinia McKneely, and that plaintiffs Mollie C. Terry and John D. Trigg are her sole heirs. Reasons for delaying suit are then set forth at length; plaintiffs W. L. and Mollie C. Terry claiming that they had been kept in ignorance of their rights by the fraud of McKneely, in taking and concealing the instrument which was the evidence of their title, and John D. Trigg claiming that delay on his part was occasioned by the repeated promises of McKneely to let him (Jno. D.) in to enjoy his interest, which, it is alleged, he (McKneely) always recognized. It is alleged, also, that Mollie C. Terry was protected in her rights by infancy and coverture from the statute of limitation. The bill concludes with a prayer for a receiver, a restraining order, cancellation of the deed, decree of ownership in plaintiffs, possession, rents, and all proper relief. This bill was filed in March, 1889. In December, 1890, plaintiffs filed an amendment to the original bill, alleging that Samuel W. McKneely and his wife, Lavinia, at the time of the execution of the written obligation mentioned in the original, also executed deeds to David H. Dickson and John D. Trigg, which were delivered to David H., for himself and for John D. Trigg, his ward. They charge that these deeds were also secretly abstracted from the possession of the widow of David H. Dickson, but that the one made to David H. for himself had been discovered since the commencement of the suit, and the other, if not destroyed by Samuel W. McKneely, had been burned, with other papers, in the house of Mrs. Dickson, in 1875. The amendment in detail explains why the deed to David H. Dickson was not discovered and produced before, and makes same an exhibit. Then, after alleging that McKneely had appropriated the entire rents for many years, amounting to several thousand dollars, it concludes with prayer for an accounting, and as in the original. Mrs. Mattie McKneely, widow of Samuel W., demurred to the bill, which was overruled. She then answered separately, denying any ownership of plaintiffs in the lands sued for, and alleging a lack of information sufficient to form a belief as to the alleged fraud and undue influence of McKneely in procuring the deed; also, a lack of information sufficient to form a belief as to the alleged written agreement between McKneely and David H. Dickson for conveyances, possession, etc., as set forth in the bill. She pleaded staleness of plaintiffs' claim, and the statute of limitation, and set up, affirmatively, that she was entitled to dower as an innocent purchaser for value. For answer to the amendment to plaintiffs' bill, she alleged a want of information, etc., as to the execution of the deeds mentioned therein, and as to the knowledge of W. L. Terry and wife concerning same. She demurs to the claim for rents and profits, as being no cause of action against her, and suggests that there was an administration, and that the administratrix was a necessary party. The heirs of McKneely answered, denying any ownership of plaintiffs in the lands in controversy; also, the alleged fraud and undue influence in procuring the deed thereto, and the alleged written agreement of Samuel W. McKneely and his wife to convey to the heirs of John P. Dickson their alleged undivided interest and to yield to them possession after three years They adopt the answer of Mattie McKneely, except as to the dower of Mrs. Sallie Hayden, which they deny she has; and, by an amendment to their answer, in answer to the amendment to the original bill, they say that the instrument purporting to be a deed from Samuel W. McKneely to David H. Dickson was never acknowledged or perfected as a deed, and that no possession was ever taken under it; that the possession of David H. Dickson in 1873 was by the sufferance of McKneely; and that, after David H. Dickson died, McKneely again took possession in 1873, and held same continuously till his death. The court appointed a receiver to take charge of the property when suit was begun, and a special master to state an account for rents, improvements, taxes, etc., from the time McKneely took possession till the institution of this suit; decreed to Mrs. Terry an undivided one-third interest in the lands sued for; gave judgment in her favor in the sum of $8,857.10, the amount of rents for her share of the land; and decreed same to be a lien upon the undivided two-thirds residue. Both parties appealed.

W. S. Terry, S. A. Byrne, and J. C. Head, for plaintiffs. Scott & Jones, E. F. Friedell, and Dan W. Jones & McCain, for defendants.

WOOD, J. (after stating the facts).

The questions are: First. Was the deed from John P. Dickson to McKneely void for fraud and undue influence? Second. Did Samuel W. McKneely, in 1869, execute deeds to David H. Dickson and John D. Trigg to an undivided one-third in the lands in controversy; and did he enter into a written obligation with David H. Dickson, at the same time, by which he (McKneely) was to retain possession of the entire place for three years, and at the end of which time he was to surrender to the heirs; and was this agreement fulfilled? Third. If plaintiffs Mollie C. Terry and John D. Trigg have the legal title to an undivided interest in the whole or a portion of the lands in controversy, are they barred from recovery by laches or limitations? Fourth. Are plaintiffs Mollie C. Terry and John D. Trigg entitled to an undivided one-sixth, each, in the lands sued for, as the only heirs of Mrs. Lavinia McKneely? Fifth. Is Mrs. Mattie McKneely entitled to dower as an innocent purchaser for value? Sixth. Can plaintiffs, if they are decreed the owners of an undivided interest, recover rents for their share collected by McKneely in his lifetime; and can they have a lien for rents declared upon the undivided interest remaining in the heirs of McKneely?

1. Was the deed void? The circuit court, in an elaborate decree, in which we think the facts are accurately discussed, and the law correctly applied, found that there was no evidence to justify setting aside the deed. We are of the same opinion. A discussion of the facts leading to this conclusion could only be of interest to the parties litigant, and would serve no useful purpose as a precedent. The law is too well settled for discussion. The plaintiffs, therefore, cannot recover as to the heirs of John P. Dickson.

2. The chancellor found that, in 1869, McKneely executed conveyances to David H. Dickson and John D. Trigg, securing to them, respectively, the interest they claimed in the lands, and also executed an agreement by which he was to hold the land for three years, after which he was to surrender the same; that McKneely did hold the lands for three years, and then gave possession to David H. Dickson, father of Mollie C. Terry, who held until he died, in 1873; that, after David H. Dickson's death, McKneely again took possession, and collected and appropriated to his own use the rents and profits until his death in 1889. These, also, are purely questions of fact, and the evidence fully supports the court's conclusion. This answers the second proposition, and determines the right of Mollie C. Terry, as the only heir of David H. Dickson, and of John D. Trigg, to recover under their deeds, unless they are barred by laches or limitation.

3. Are they barred? As to John D. Trigg, the court found that he was present when the settlement was had between McKneely and David H. Dickson, guardian of John D. Trigg, whereby the interest of John D. Trigg in the land was conveyed to him; that he was 18 years old, and understood the agreement for McKneely to hold the land for 3 years, and for David H. Dickson to take possession at the end of that time; that he knew that McKneely repossessed himself of the land in 1873, after David H. Dickson's death; that at this time John D. Trigg was of age, and knew that McKneely had been accused of fraudulently taking and secreting the deeds to this land in the same year, 1873. And the court found that, for 16 years, McKneely held the land, collected and appropriated the rents of the entire place to his own use; that the rents amounted to a large sum, the place being valuable; that, at various times before McKneely's marriage with the defendant Mattie, in ____, John D. Trigg applied to him to be let in to enjoy his interest, and was always refused; that plaintiff John D. Trigg had labored under no disability since...

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2 cases
  • McKneely v. Terry
    • United States
    • Arkansas Supreme Court
    • January 18, 1896
  • Franklin v. Hempstead County Hunting Club, 4-9144
    • United States
    • Arkansas Supreme Court
    • March 27, 1950
    ...of the whole.' Angell, Lim. 429. 'The possession, therefore, of one tenant in common is the possession of all." McKneely v. Terry, 61 Ark. 527, 33 S.W. 953, 956. 'For possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought ho......

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