Miller v. Brown, 5-119
| Decision Date | 01 June 1953 |
| Docket Number | No. 5-119,5-119 |
| Citation | 222 Ark. 236,258 S.W.2d 237 |
| Parties | MILLER v. BROWN et al. |
| Court | Arkansas Supreme Court |
Frank C. Douglas and James M. Gardner, Blytheville, for appellant.
Bruce Ivy, Osceola, for appellee.
Sidney E. Evans died intestate April 15, 1950. His wife had predeceased him. They had no children. Annie B. Miller, a niece of Mr. Evans and his guardian, brought suit to collect balance alleged to be due on a demand note dated September 15, 1922, given to Evans by appellees, the Browns, in the amount of $10,000, with 10% interest thereon, and secured by deed of trust on two business lots in Luxora, Arkansas, William Wood being named as trustee. Foreclosure on the lots was prayed. May 31, 1950, the suit was revived in appellant as administratrix. To the complaint, appellees answered with a general denial and specifically denied owing appellant any sum whatever. In an amendment to the complaint September 25, 1950, appellant alleged, in effect, that since filing the original complaint, she had learned that appellees, for a complete defense, were relying on a release deed executed by Mr. Evans April 23, 1949 and duly recorded. Appellant further alleged that if, in fact, Evans executed such release deed, it was given at a time when he was not mentally capable of executing such instrument and also pleaded fraud and undue influence. October 13, 1950, appellees filed answer to the amendment to the complaint, denied every material allegation therein and pleaded as a complete defense the release deed executed by Mr. Evans April 23, 1949.
Trial resulted in a finding by the court of all issues of law and fact in favor of appellees and dismissed appellant's complaint for want of equity. This appeal followed.
For reversal, appellant argues that the release deed executed by Evans April 23, 1949 was procured by fraud, undue influence, and at a time when Mr. Evans was without mental capacity, and that there was no consideration.
After a review of all the testimony, we have concluded that none of appellant's contentions is supported by a preponderance of the testimony and cannot be sustained.
As indicated, appellees executed the note in question September 15, 1922 with an interest rate of 10%. Mr. Evans and appellees were close friends of long standing and this friendship appears to have continued up to Mr. Evans' death. Evans was engaged in farming and the Browns in the mercantile business and through arrangement of the parties, Evans bought groceries, merchandise, supplies, etc. for his family and farming operations from the Browns and such purchases were from time to time credited on the note by Evans, the last endorsement being made September 15, 1938.
Briefly stated, the evidence shows that appellees paid Evans at intervals on the note a total of $15,600, from September 22, 1922 to September 15, 1938. On April 9, 1949, the parties made a full settlement of the balance due on the note and on that date, appellees paid Evans an additional sum of $9000, evidenced by store account owed by Evans of $7,046.10 and a check to Mr. Evans for $1,953.90, making a total paid of $24,096. There was written on the face of the check: 'Balance due on note of $10,000.00 dated September 15, 1922, also deed of trust securing same.'
On this same day, Mr. Evans went to the bank in Luxora to get the note and deed of trust to deliver to appellees, but found it missing from his lock box, and on the same day, at his own suggestion, he executed and signed a receipt which recited:
After further search, Mr. Evans was unable to locate the note and...
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