Naill v. Kirby

• Decision Date: 28 January 1924
• Docket Number: 120
• Citation: 257 S.W. 735,162 Ark. 140
• Parties: NAILL v. KIRBY
• Court: Arkansas Supreme Court

257 S.W. 735

162 Ark. 140

NAILL v. KIRBY

No. 120

Supreme Court of Arkansas

January 28, 1924

[Copyrighted Material Omitted]

Appeal from Prairie Chancery Court, Southern District; Wilson W Sharpe, special chancellor; affirmed.

STATEMENT OF FACTS.

G. W Naill and Mary Price brought this suit in equity against John Kirby and others to quiet the title of plaintiff, G. W Naill, in the land described in the complaint, and to have a deed from James Hill and wife to G. W. Walker treated as a mortgage which has been fully satisfied.

The defendant, John Kirby, defended the suit on the ground that he had title to the land in controversy. The other defendants made no defense to the action.

It appears from the record that G. W. Naill and John Kirby, both of whom claim title to the land in controversy, trace their title to a common source. Each claims title by mesne conveyances from James Hill, who, it is conceded, at one time owned the land and was in possession of it. No attempt is made by either party to go behind the title of James Hill or to show that his title to the land was not good. It appears from the record that James Hill and Phoebe Hill, his wife, had title to the land and lived on it.

The plaintiff, G. W. Naill, deraigned title as follows: In the record there is what purports to be a deed to the land in controversy, comprising 120 acres, from James Hill, a widower, to Mary Price. The consideration recited is $ 100, and the date of the deed is January 25, 1912. The signature is as follows: "James (his x mark) Hill, L. G." The deed purports to have been acknowledged before a notary public by James Hill on the 14th day of February, 1912. It was filed for record on the 10th day of April, 1912, and was duly recorded.

On the 19th day of October, 1914, Fred Harris executed a quitclaim deed to the land in controversy to Mary Price for the consideration of $ 1. The signature of Fred Harris was by his mark, and was duly attested by two witnesses. The deed was acknowledged by Fred Harris before a notary public on the 9th day of October, 1914, and filed for record on October 20, 1914. On September 20, 1918, Mary Price conveyed the land in controversy to G. W. Naill for the consideration of $ 300, and the deed was duly acknowledged and filed for record on the same day.

The defendant, John Kirby, deraigned title as follows: There is in the record what purports to be a deed to the land in controversy from James Hill and Phoebe Hill to G. W. Walker for the consideration of $ 600. The deed purports to be a warranty deed with relinquishment of dower, in common form. The signatures to the deed are as follows: "James (his x mark) Hill (seal), Phoebe (her x mark) Hill (seal)." There does not appear any attesting witnesses to the signatures. The certificate of acknowledgment recites that James Hill was the grantor in the deed, and acknowledged it before J. D. Hall, a justice of the peace. The certificate of acknowledgment also recites that Phoebe Hill was the wife of James Hill, and signed her relinquishment of dower and homestead in said land under the laws of the State of Arkansas. The deed was filed for record on the 8th day of June, 1895, and was duly recorded.

There also appears in the record what purports to be a deed to the same land from G. W. Walker and Martha T. Walker, his wife, to Phoebe Hill, for the consideration of $ 625. This deed is dated May 9, 1895, and the signatures to it are the following: "James (his x mark) Hill and Phoebe (her x mark) Hill." This deed purports to have been acknowledged before J. D. Hall, justice of the peace, on May 9, 1895. The certificate of acknowledgment recites that G. W. Walker is the grantor in the deed, and stated that he had executed the same for the considerations and purposes mentioned therein. The certificate of acknowledgment also recites that Martha T. Walker, the wife of G. W. Walker, to the officer well known, in the absence of her husband appeared before him and signed and executed her relinquishment of dower and homestead to said lands. This deed was filed for record on the 13th day of May, 1895, and was duly recorded.

There also appears in the record a quitclaim deed to said land from Alice Hurdle, Lafayette Harris and other persons named therein to John Kirby. The deed is dated on the __ day of September, 1913, and is signed by the grantors. The consideration recited in the deed is $ 1. The grantors duly acknowledged the deed before a notary public, and it was filed for record on the 21st day of March, 1918.

Mary Price was a witness for the plaintiffs. According to her testimony, James Hill was her father, and he could neither read nor write. She was living in Little Rock. Ark., when he deeded the land to her. At the time her father executed the deed to her, the land had been rented to G. W. Naill, and he lived on it with Pearl Bundy, a daughter of the witness. Subsequently the husband of witness procured a deed to the land to her from Fred Harris, a brother of Phoebe Hill. Phoebe Hill was the stepmother of the witness, and was seventy-five years old when she died. James Hill died in 1912, soon after he executed the deed to the witness. Phoebe Hill had died before the deed from James Hill to Mary Price was executed. The witness sold the land to G. W. Naill for $ 400, and he paid her for it.

G. W. Naill was a witness for himself. He said that he paid Mary Price for the land at the time she executed the deed to him. He believed that she had title to the land when he bought it. He did not know anything about the purported deed from G. W. Walker and wife to Phoebe Hill, which was signed by James Hill and Phoebe Hill, when he purchased the land. He rented the land from Mary Price two years before he rented it from the defendant, Kirby. This was in 1914 and 1915. He rented the land from the defendant Kirby in 1917. On cross-examination he stated that he did not know who occupied the house on the land in 1913, 1914 and 1915, but that John Kirby occupied it in 1916, 1917, and 1918. He knew that the defendant Kirby was in possession of the land when he bought it from Mary Price. Fannie Nichols occupied one room of the house after James Hill died. She was in that room when the witness rented the land. John Kirby lived right in front of the house where the witness lived during the years 1916 and 1917. The witness paid Kirby $ 40 rent the first year and $ 30 the next. The witness refused to pay the rent to Kirby until he received a guaranty that Mary Price would not again collect the rent from him. As soon as the witness purchased the land from Mary Price in 1918, he brought suit for it.

Fannie Nichols was a witness for the defendant Kirby. According to her testimony, she lived on the place three years after James Hill died. John Kirby permitted her to live there, and claimed the place while she lived there. Mrs. G. W. Naill worked the place a part of the time. John Kirby moved in a house on the place when she moved out, and has lived there ever since.

J. D. Hall was also a witness for the defendant, Kirby. According to his testimony, he was a justice of the peace on the 9th day of May, 1895, and took the acknowledgment to two deeds; one from James Hill and wife to G. W. Walker, and one from G. W. Walker and wife to Phoebe Hill. These deeds were prepared by G. W. Walker, a colored lawyer, who occupied the same office with the witness. James and Phoebe Hill were present and acknowledged the first deed. James Hill was an ignorant colored man, and stated that he had so much trouble with his children that he wanted to fix the land so that he would not lose it, and wanted to give the land to his wife. He asked Walker to fix the deed that way. Walker told him that it would be better to deed the land to him, that he and his wife would deed it to Phoebe Hill. The witness took the acknowledgment of James Hill and wife to the deed to Walker, and also took the acknowledgment of Walker and wife to Phoebe Hill. The witness did not understand why James Hill and Phoebe Hill signed both deeds. It must have been an oversight. There was nothing said about the deed being intended as a mortgage, and Walker had no money to lend. Both deeds were written and acknowledged at the same time.

According to the testimony of Jim Bundy, he married a daughter of Mary Price. Mary Price did not live on the land in question after James Hill died. James Hill left the place in November or December, 1911, and Mary Price went with him. G. W. Naill worked the land for several years after James Hill died. Fannie Nichols lived on the place four years after James Hill died, and left the place in 1916. John Kirby moved in when she left the place, and has lived there ever since.

According to the testimony of John Kirby, Phoebe Hill was his aunt. She had no children or parents at the time she died. She had one brother, Fred Harris, also known as Lafayette Harris, and one sister, and his wife, Eliza Kirby. The reason the heirs of Phoebe Hill did not claim the land when she died was because they did not want to disturb James Hill in the possession of it as long as he lived. After James Hill died the witness bought the other heirs out and divided the land, giving Pearl Bundy sixty acres. Kirby rented the land to G. W. Naill in 1914 and 1916. He received a deed to the land from the other heirs of Phoebe Hill in 1913, and in 1914 took possession of the land by moving Fannie Nichols on the land to hold possession of it for him, and by renting the land to G. W. Naill. G. W. Walker and Phoebe Hill died some time before James Hill died. The mother of John Kirby inherited the land from Phoebe Hill.

In rebuttal it was shown by the attorney of the plaintiffs that he asked J. D. Hall about the circumstances under which he took the...