Pillow v. King
| Citation | 18 S.W. 764,55 Ark. 633 |
| Parties | PILLOW v. KING |
| Decision Date | 20 February 1892 |
| Court | Supreme Court of Arkansas |
APPEAL from Lee Circuit Court in chancery. MATTHEW T. SANDERS Judge.
Judgment affirmed.
John B Jones for appellant.
The decree in the Tennessee case is not res adjudicata, and does not estop appellant from prosecuting this appeal. The title to lands must be determined by the courts of the State where the lands lie. 27 Ark. 486; 15 How., 244; 7 C. E. Green, 115; 1 Hawks, 365; 6 Pet., 399; Story, Conf. Laws, sec. 543; Cooley, Const. Lim., 491-2; 1 Black on Judg., 240; 38 Ill 316. The delivery of the deed was the issue in Tennessee case, and it directly involved the title to the land in controversy, and is not binding on Mrs. Pillow.
2. No formal act of delivery is necessary. If the deed is so disposed of as to evince clearly the intention that it is to take effect as a deed, it is sufficient. 36 Minn. 276; 41 Iowa 33; 3 Wash. on Real Pr., 257. See further as to acts and proof of delivery. 15 Wend., 545; 9 Allen, 102. If both parties are present, and the contract is to all appearances consummated, it is a complete and valid deed, notwithstanding the grantor retains it. 7 Barb., 176; 19 id., 453; 20 F. 467; 30 Miss. 97; 85 Ind. 254; 35 Wis. 666; 4 Me. 25. A deed once delivered cannot be defeated by any subsequent act. 22 Ark. 488; Wash., R. P., 256; 91 Ill. 605. When a deed is found in the hands of the grantee, a delivery is presumed. 3 Wash., Real Pr., 263; Martindale on Convey., sec. 213; 91 Ill. 605. Numerous witnesses sustain appellant. King is sustained by none. The delivery of the deed passed the title.
3. The maker of a deed reciting a valuable consideration cannot show that the consideration was not paid, to defeat the deed. 3 Washb., R. P., 327; Martindale, Conv., pp. 72-3; 2 Hill, 554; 16 Wend., 461; 10 Ga. 273; 19 How., 211; Hatch v. Bates, 54 Me.; 102 Mass. 541.
It is immaterial whether the consideration was paid or not. 35 Iowa 461; 31 Barb., 371; 32 Mich. 380.
W. G. Weatherford for appellee.
1. The effort in the Tennessee case was to compel appellee to execute a deed and not to decree title to lands in Arkansas. The court had jurisdiction of the parties, and was competent to compel King to execute the deed, and hence had jurisdiction, and its decision as to the execution and delivery of the deed is final, and the appeal should be dismissed under sec. 1305 Mansf. Dig. That the Tennessee court had jurisdiction, see Pom. Eq., secs. 108, 112, 1044, 1053; Kerr on Frauds, 275; Story, Eq. Jur., sec. 254; 44 Ga. 155; 1 Gr. Ch., 229; 6 Cr., 159; 6 Wheat., 558; 95 U.S. 714; 16 Pet., 25; 10 Wall. 464; 7 Baxt., 537; 45 Ark. 189; 141 U.S. 105. The decision of the Tennessee court is conclusive and bars this appeal. Herm. on Estoppel, secs. 122, 124, 125.
2. The burden was on appellant. The substance of the case made by the pleadings must be proved. 2 Dan., Ch. Pl. & Pr., 853. Reviews all the evidence, and contends that neither delivery nor payment is shown. Delivery is a question of interest; two elements are essential. First, it must be placed within grantee's control. Second, with the grantor's intent that it shall be beyond his power of control and operation. 6 S.W. 823; 30 Miss. 55; 56 id., 383; 4 Wis. 356; 96 Ind. 412; 99 id., 28; 79 Ill. 548; 10 Lea, 315; 3 id., 579. See, also, 83 Ill. 267; 1 Head, 574; 1 Devlin on Deeds, secs. 262, 308; 3 Tenn. Chy., 492; 1 Head, 576; 19 Barb., 243. Whenever the grantor has a right to recall it, there has been no delivery. 1 Devlin on Deeds, sec. 282; 19 Barb., 243.
James P. Brown also for appellee.
1. If the Tennessee court had jurisdiction, the rights of these parties have already been settled, and there is nothing left for the courts to decide. It certainly had jurisdiction, not to adjudicate the title to lands in Arkansas, but in personam in cases of contract, fraud or trust. Mrs. Pillow's prayer was that King be required to execute another deed in lieu of the one destroyed. The Tennessee court certainly had jurisdiction to do this, and, having decided against her, the question is res judicata. Herman on Estoppel (2d ed.), secs. 514, 519, and note; 24 Oh. St., 621; Pom., Eq. Jur., sec. 298; Story, Eq. Jur. (10th ed.), secs. 743, 744, 899, 1290-1300; Dan., Chy. Pr., 1627 (5th ed.); Perry on Trusts (3d ed.), secs. 71, 72; 1 Vesey, 444; 6 Cr., 148; 100 Mass. 267; Hopk., Chy., 213; 9 Paige, 280; 2 Paige, 402, 606; 45 Ark. 189; 16 S.W. 469.
2. There never was a delivery of the deed, but if delivered the recited consideration was never paid. Mrs. Pillow's own conduct is weightier than the testimony of her witnesses.
King brought this suit against Mrs. Pillow in the Lee circuit court on the 27th of October, 1888, for an accounting and to set aside, as a cloud upon his title, a deed to lands in that county, purporting to have been executed from him to her in July, 1886, which she had caused to be recorded.
She filed her answer on the 20th day of July, 1889, and disclaimed any right to the land by virtue of the deed assailed in the complaint; she set up title to the land under a deed which, as she alleged, King executed and delivered to her in November, 1885, in satisfaction of a debt of ten thousand dollars; she alleged that, before the deed under which she claims was recorded, King fraudulently got possession of and destroyed it; she made her answer a cross-bill, joined in the prayer of the original complaint for an accounting between King and herself, and prayed that she be declared the owner of the land in Lee county by virtue of the deed made in 1885.
King for answer to the cross-bill admitted that in 1885 an instrument signed and acknowledged by him had been drafted for a conveyance from him to Mrs. Pillow, and that it recited a consideration of ten thousand dollars; but he denied that it had been delivered or that there was any valuable consideration for it. On the contrary, he alleged that it was testamentary in character, to be delivered to Mrs. Pillow only in the event that he should die without otherwise disposing of it. On a final hearing upon the pleadings and proof, the court found that the conveyance relied upon by Mrs. Pillow was without consideration and had never been delivered; and decreed that the cross-complaint be dismissed, and that the prayer of the original complaint be granted. Mrs. Pillow has appealed, and contends that the court erred in its finding and decree upon the cross-complaint, but does not complain of the court's action upon the original complaint. We may dismiss from view the original complaint and treat the cause as if it arose upon the cross-complaint and answer thereto.
The deed which King sought to cancel included land in Shelby county, Tennessee, and he, soon after bringing this suit, instituted a similar one in the chancery court of that county to cancel the deed as a cloud upon his title to the land there. Mrs. Pillow filed an answer and cross-bill in that case similar to those in this, disclaiming any right to the land there under the deed assailed, but setting up the execution, delivery and subsequent destruction of the deed relied upon in this case, and praying that King be required to execute another deed in lieu of the one destroyed. King appeared to the cross-bill and filed the same answer, in substance, as in this case. There being no claim asserted by her to the Tennessee property, the court granted the prayer of the original bill, but dismissed the cross-bill for want of jurisdiction of the subject matter. Mrs. Pillow appealed, and, upon a final hearing in the Supreme Court of Tennessee, it was adjudged that the chancellor erred in refusing to entertain jurisdiction of the subject matter, but that Mrs. Pillow's prayer that King be required to execute her a deed in lieu of the one destroyed could not be granted, because her allegation that she had paid for the land was not true, whereas, in fact, no consideration had been paid by her therefor.
This decree of the Tennessee Supreme Court having been rendered after the trial of this cause in the court below, the appellee filed his answer in this court setting out said decree, and moved the court to affirm the judgment below because the issues herein involved are therein adjudged against her. In support of said answer and motion, a transcript of the pleadings and judgment in said cause has been filed, and there is no controversy as to the facts arising thereon. To sustain the right of the appellee to avail himself of the Tennessee judgment by answer in this court and motion to affirm, he cites us to section 1305, Mansf. Dig., which is as follows: "The appellee may, by answer filed and verified by himself, or agent, or attorney, plead any fact or facts which renders the granting of the appeal or writ of error improper, or destroys the appellant's right of further prosecuting the same, to which answer the appellant shall file a reply, likewise verified by affidavit of himself, agent or attorney, and the questions of law or fact thereon shall be determined by the court." He contends that the Tennessee judgment, pending this appeal, destroyed appellant's right to further prosecute it; and if, in fact, that adjudication settles against her the rights asserted here, we are of opinion that it may be availed of in the manner attempted. Bolen v. Cumby, 53 Ark. 514, 14 S.W. 926.
It is therefore necessary to determine whether the Tennessee judgment is conclusive as to the rights involved in this cause. The appellant insists that it is not, because that court proceeded without jurisdiction, and because the facts found and the right adjudged in that suit are not the same as in this. The only defect in jurisdiction relied upon is that the lands are situate without the limits...
To continue reading
Request your trial
- Boynton v. Chicago Mill & Lumber Company
- Hoggard v. Mitchell
- Wood v. Wood
- State v. Adler