Miles v. Monroe

• Decision Date: 21 November 1910
• Citation: 132 S.W. 643,96 Ark. 531
• Parties: MILES v. MONROE
• Court: Arkansas Supreme Court

132 S.W. 643

96 Ark. 531

MILES v. MONROE

Supreme Court of Arkansas

November 21, 1910

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

W. P Feazel and W. C. Rodgers, for appellant.

1. The evidence does not sustain the verdict. The facts that Mr Wade was riding the mare a large part of the time, that the two horses were kept together at his house all the time when he was not riding, that appellee never assessed the mare as her property nor did any one for her, and Wade's claim to divers persons that he owned the mare, are inconsistent with a claim of a gift. There was nothing in the conduct of the parties to put the bank on inquiry whether the mare was appellee's property. 76 Ark. 457; 77 Ark. 147; 78 Ark 62; 84 Ark. 263; 46 N.Y. 684; 78 N.E. 5. In order to effect a gift, the donor must part with all control whatever of the thing given, completely and for all time.

2. The first instruction given at appellee's request is erroneous in that it makes the fact of delivery and possession conclusive of her claim.

3. Instruction No. 2, given for appellee, gives undue emphasis to the rule of evidence that admissions against interest are competent evidence. It is improper for a court to dilate upon a mere rule of evidence in its instructions. 62 Ark. 286, 312; 75 Ark. 76, 86; 78 Ark. 87, 93.

4. The third instruction given at appellee's request is self-contradictory in stating that the owner of property may give it to whom he chooses, regardless of creditors or children, and later stating that if possession was given and the gift was not in fraud of creditors, the jury could find for the plaintiff.

5. Instructions 2 and 3, requested by appellant, should have been given. A party to a contract cannot derive any benefit therefrom where he does not in good faith intend to perform it. If appellee did not intend to perform the alleged contract of marriage with Wade, she cannot claim the property as against those who, in good faith, have advanced money to him. 129 S.W. 530, 531.

6. If Wade was in debt at the time the alleged gift was made, such gift was unlawful, and appellee's claim must fail. The fourth instruction requested by appellant should have been given. Kirby's Digest, § 3658. Where marriage is the consideration for an agreement, there is no consideration until the marriage is performed. 10 Ark. 53, 60; 124 S.W. 124, 126. Nor is the appellee aided by reason of the fact that debt to the bank is a subsequent transaction. The statute, supra, says that such conveyance shall be void as to prior and subsequent creditors.

Sain & Sain and T. D. Crawford, for appellee.

1. The testimony was legally sufficient to sustain the verdict.

2. Appellant's objection to the first instruction overlooks that element of the instruction which tells the jury that if Wade bought the mare for appellee and delivered the animal to her in pursuance of that purpose, then there was a consummated gift. If the transaction was a gift, there is no evidence tending to prove that Wade was guilty of any actual or intentional fraud in making it, and subsequent creditors could not be heard to complain. 50 Ark. 42; 56 Ark. 253; 1 Moore, Fraud. Conv. § 3. A gift accompanied by delivery and subsequent peaceable possession can no more be revoked than a sale. 14 Ark. 505. An antenuptial conveyance or settlement of property, made in consideration of marriage, is upon a good and valuable consideration, and is valid as against creditors of the grantor. 1 Moore, Fraud. Conv. § 25; 20 Cyc. 504; Rodgers, Dom. Rel. § 161.

3. There is no merit in appellant's contention that the second instruction given at appellee's request lends undue influence to the rule of evidence that admissions against interest are competent. Such instructions are not prejudicial where the whole charge to the jury directs them to consider all the facts and circumstances proved in the case. 93 Ark. 316.

4. Appellant's objection to the third instruction given is not tenable here. Ambiguity in an instruction should be met by a specific objection. Moreover, it could not have been prejudicial because there is no proof that the gift was in fraud of creditors.

5. Instructions 2 and 3, requested by appellant, were property refused. There is no proof that appellee ever refused to marry Wade. No contention that her engagement was fraudulently entered into. In case of such contention the acts constituting fraud must have been specifically alleged and proved. 77 Ark. 355; 34 Ark. 63.

Her title based on the consideration of marriage did not fail by reason of the death of Wade before the marriage was consummated. 4 A.D. 22, 26; 5 Allen 454, 81 Am. Dec. 758.

6. The fourth instruction requested by appellant was properly refused. (1) There is no evidence that Wade was indebted at the time of the gift, and that such indebtedness still existed. (2) The mere fact that he was in debt at the time was not sufficient, in the absence of proof of intentional fraud, to set aside the gift in favor of a subsequent creditor. 56 Ark. 253; Rodgers, Dom. Rel. § 165. (3) It being admitted that a promise of marriage is a valuable consideration, the doctrine as to voluntary conveyances does not apply.

OPINION

FRAUENTHAL, J.

This was an action of replevin instituted by the plaintiff below, Hessie Monroe, to recover the possession of a sorrel mare. Both the plaintiff and defendant claimed title to the mare from a common source, by acquisition thereof from one J. M. Wade. The plaintiff claimed the property by virtue of an alleged gift made to her by Wade on April 7, 1909, and the defendant by virtue of a sale made under a mortgage executed by Wade on September 4, 1909. The plaintiff and said Wade on April 7, 1909, and for some years prior thereto resided near Perryville in the State of Tennessee. The plaintiff is a young lady, who at that time and up to the date of the trial lived with and as a member of the family of her father, W. M. Monroe. J. M. Wade was a widower, who with his two children made his home with said W. M. Monroe for some years prior to the above date. The testimony on the part of the plaintiff tended to prove that J. M. Wade bought the mare in controversy, and on April 7, 1909, gave and delivered her to the plaintiff at the home of her father in the State of Tennessee. The testimony tended further to prove that Wade at that time was the owner of a number of head of mules and other property and moneys aggregating several thousand dollars, and there is no testimony that he owed at that time any indebtedness, except probably $ 400. On or about April 15, 1909, W. M. Monroe, with the plaintiff and the other members of his family, and J. M. Wade moved to Nashville in the State of Arkansas; and from that date until the date of his death on October 26, 1909, J. M. Wade lived with said Monroe. The testimony tended to prove that the mare was brought from Tennessee by the father of plaintiff at the time the said parties moved to Arkansas, and was shipped with some of his and Ward's stock; and from that time was claimed by and remained in the possession of plaintiff, and was recognized by Wade as her property. On September 4, 1909, J. M. Wade executed to the Bank of Mineral Springs a mortgage on a lot of sawmill property, a large number of head of stock, amongst which was the mare in controversy, and on other personal property, in order to secure a note for $ 2,000 made on that day. It appears that J. M. Wade became ill on October 21, and died on October 26, 1909, and that default was made in complying with the provisions of said mortgage. Thereafter the mortgagee took said property from the possession of plaintiff and against her protest, and the same was sold by virtue of the mortgage, and at such sale the defendant became the purchaser. Upon her cross examination the plaintiff testified that she and J. M. Wade were engaged, and she supposed that this was the reason why he gave her the mare, and that she accepted it upon that consideration. The defendant introduced testimony tending to prove that three or four months prior to the death of J. M. Wade plaintiff stated that she would commit suicide before she would marry him.

During the progress of the trial the defendant offered to prove the financial condition of J. M. Wade after he moved to Arkansas; and also offered to prove that defendant had purchased the mare in controversy under a sale made by order of the chancery court in a suit foreclosing said mortgage, but to which suit plaintiff was not a party; but the lower court refused to permit the introduction of any of the above offered testimony.

At the instance of defendant the court, among other instructions, gave the following to the jury:

"No. 5. You are instructed that a valid gift cannot be made without delivery of the thing given. And, in order that the change of possession be sufficient in law, it must be complete and unequivocal and with the intent at the time that the donor or giver is to lose all control over the thing given for all time to come. The transaction must be understood by and between both parties as forever depriving the giver of the thing given and all authority, right of possession and control over the same. And, if this state of things is not shown by a preponderance of the evidence, your verdict must be for the defendant."

The court refused to give the following instruction requested by defendant:

"No 4. The jury are instructed that J. M. Wade in his lifetime could not lawfully have given to the plaintiff the mare in controversy if he was at the time indebted and said indebtedness is still unsatisfied. So, if you find from the evidence that he was in debt at the time he is alleged to have given the mare in controversy to the plaintiff,...