Naler v. Ballew

• Decision Date: 07 January 1907
• Citation: 99 S.W. 72,81 Ark. 328
• Parties: NALER v. BALLEW
• Court: Arkansas Supreme Court

99 S.W. 72

81 Ark. 328

NALER v. BALLEW

Supreme Court of Arkansas

January 7, 1907

Appeal from Polk Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

Jones & Hamiter, for appellant.

In transactions between husband and wife whereby her property become vested in him, the onus is on him, and on those holding under him, to show the bona fides of the transactions. Where a disposition of her property is attempted which is beneficial to him and injurious to her, he becomes her trustee, and every reasonable intendment is indulged against him. Harris, on Contracts by Married Women § 599; 30 Miss. 161; 36 Miss. 510; id. 640; 39 Miss 462.

J. I Alley and Hal L. Norwood, for appellee.

1. Where a husband receives fund of his wife and with her knowledge and consent invests it in real estate in his own name, the law raises a prima facie presumption of a gift. 40 S.E. 341; 50 W.Va. 226.

A gift of personal property by the wife to the husband, though viewed with caution, will not be set aside, unless undue influence is shown. 48 S.W. 158. The object of a careful scrutiny of such gifts is to ascertain, and not defeat when ascertained, the real intention of the parties, where the transaction is free from fraud. 75 Ark. 127. See also 88 S.W. 976.

2. The findings of a chancellor will be sustained unless clearly against the weight of evidence. 73 Ark. 486; 72 Ark. 67; 71 Ark. 605.

OPINION

HILL, C. J.

Baker Ballew, the appellee, brought suit in equity against appellants, who are the brothers and sister of his deceased wife and her next of kin, to quiet his title to a half block of ground in Mena. They answered, asserting title to said property, and by cross-complaint sought to recover of Ballew other property in the hands of other persons, who were made defendants to the cross-complaint, and also sought to hold Ballew trustee for them for another lot in Mena alleged to have been bought with money belonging to his deceased wife of which title was taken in himself, and for a judgment against him for money received from his wife. On motion the court struck out all that part of the cross complaint not relating to the half block mentioned in the complaint. The striking out of these other matters is assigned as error. Section 6088, Kirby's Digest, prescribes the office of a cross-complaint where parties other than the plaintiff are proceeded against. Third parties and co-defendants can only be brought in where the cause of action affects the subject-matter of the principal action. Trapnall v. Hill, 31 Ark. 345. Such was not the case here, and the action of the court was right, so far as these third parties were concerned; and whether it was right or not as to the other lot in Mena and the money derived from Mrs. Ballew as between them and Ballew is immaterial, in view of the opinion of the court on the subject of the gift of the money to Ballew. The issue is thus limited to the half block concerning which the suit was brought. The deed to this half block was made to the husband and wife jointly, and created in them an estate in entirety, and the survivor took the whole fee. Robinson v. Eagle, 29 Ark. 202; Branch v. Polk, 61 Ark. 388, 33 S.W. 424; Simpson v. Biffle, 63 Ark. 289, 38 S.W. 345.

It was shown that this land was purchased and improved with funds received by Mrs. Ballew from her father's estate. She received $ 4,285 from that source, all in checks payable to herself, which she indorsed and delivered to her husband, and which he deposited to his own credit in banks at Mena. He testified that she gave him this money. In some respects his testimony is inconsistent with established facts, and in several matters he is contradicted by both interested and disinterested witnesses, and of course this weakens the force of his testimony that his wife gave him her inheritance. But it is an established fact that she did indorse and deliver these...