Myers v. Hobbs

• Decision Date: 11 April 1938
• Docket Number: No. 4-5007.,4-5007.
• Citation: 115 S.W.2d 880
• Parties: MYERS et al. v. HOBBS.
• Court: Arkansas Supreme Court

Page 880

115 S.W.2d 880

MYERS et al. v. HOBBS.

No. 4-5007.

Supreme Court of Arkansas.

April 11, 1938.

Rehearing Denied May 9, 1938.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Action for the construction of a will and for cancellation of deeds by W. F. Hobbs and Henry T. Hobbs against J. R. Myers and others. From the judgment, the defendants appeal and plaintiff W. F. Hobbs cross-appeals.

Judgment affirmed on the cross-appeal, and reversed and dismissed on appeal.

Cockrill, Armistead & Rector, of Little Rock, for appellants.

Horace Chamberlin, of Little Rock, for appellee.

MEHAFFY, Justice.

This action was begun by W. F. Hobbs and Henry T. Hobbs against J. R. Myers and others in the Pulaski chancery court. The plaintiffs in the court below asked that the will of James B. Keatts be construed as giving the children of Helen Hobbs and Frederick S. Hobbs a contingent remainder only, the fee to said lands vesting in them on the death of Helen Hobbs; that certain deeds mentioned be canceled; and that they be decreed to be the owners of the land described with right to immediate possession.

The tenth clause of the will of James B. Keatts reads as follows: "I will and bequeath and give to James Hobbs, Wm. Hobbs and Daisy Hobbs, children of Frederick S. Hobbs, and my niece, Helen Hobbs, my plantation one mile below Little Rock, known as the Keatts Place, to be equally divided between them, and all other children, my niece Helen Hobbs may have, and my said niece Helen Hobbs is to have the use and benefit, and the profits of said land during her natural life, and at her death to be equally divided between her living children."

William F. Hobbs and Henry T. Hobbs, who were the plaintiffs below in this action, brought a suit in the Pulaski circuit court against W. E. Lenon and others, claiming that they were the owners of said land described and asking judgment for the immediate possession and damages. There was an appeal by William F. and Henry T. Hobbs to this court and the opinion, in Hobbs v. Lenon, is in 191 Ark. 509, 87 S.W. 2d 6. The history of the title is stated in said case, and it is not necessary to repeat the facts here.

Appellants contend first that the chancery court was without jurisdiction. It was alleged in the complaint that certain conveyances were forgeries, and the prayer was that they be canceled.

One of the well-recognized grounds of chancery jurisdiction is the cancellation of instruments. McCracken v. McBee, 96 Ark. 251, 131 S.W. 450. We think the chancery court had jurisdiction.

It is contended by the appellee that certain instruments, purporting to convey the land in controversy, were not signed by William F. Hobbs and Henry T. Hobbs, but that said instruments were forgeries. The chancery court held that William F. Hobbs had joined in a warranty deed to his mother, dated November 28, 1898, and of record in the recorder's office for Pulaski county, together with a quitclaim deed to his mother dated December 9, 1898, had thereby conveyed all his right, title, and interest in the property described, and that he is estopped to claim same now, and his cause of action was dismissed. Both William F. Hobbs and Henry T. Hobbs testified. The appellee, Henry T. Hobbs, testified that he did not sign any of the conveyances; that he did not know they existed until after his attorney told him about them. He was very positive that the deed to his mother was a forgery and that other conveyances were forgeries. William F. Hobbs, however, testified in another case, and his testimony was introduced in this case. The following occurs in his testimony:

"Q. What's become of that other land? A. She sold it and give us 25 acres apiece.

"Q. You had a settlement, didn't you? A. I sold mine.

"Q. Didn't you have a settlement along about 1898, when you deeded her this property, over here? A. No, sir; not then.

"Q. You said your mother gave you a settlement then? A. No, sir, I built a house on mine. I started just as soon as I got the deed.

"Q. Did she pay you anything for this land that you deeded, across the road, that you are talking about? Did your mother pay you any consideration for it? A. You mean north of the road?

"Q. Yes. This 275 acres in this deed? A. No, she wanted to sell it and we gave her our interest in it.

"Court: That was the Frazier place? Witness: That was the Frazier place."

When the witness said, "We gave her our interest," he was necessarily talking about the other children who signed, as well as himself. We therefore have W. F. Hobbs contradicting Henry T. Hobbs. If the instruments were forged, they could have been forged by nobody but appellee's mother, and we think all the circumstances show that she did not commit a forgery. The instruments were not only signed, but acknowledged before notaries public. Therefore, these men who took the acknowledgement would also be guilty. They were, of course, bound to know whether Henry T. Hobbs and W. F. Hobbs came before them and signed and acknowledged the instruments. Moreover, it appears that all of the instruments were immediately put on the record, so that anybody could know about it immediately. The notaries who took the acknowledgment of the parties were prominent and respected citizens of Little Rock.

Section 3092 of Pope's Digest reads as...