Renn v. Renn
| Decision Date | 17 April 1944 |
| Docket Number | 4-7326 |
| Citation | 179 S.W.2d 657,207 Ark. 147 |
| Parties | Renn v. Renn |
| Court | Arkansas Supreme Court |
Appeal from Clay Chancery Court, Western District; Francis Cherry Chancellor.
Affirmed.
E G. Ward, for appellant.
DeWitt M. Hines, for appellee.
This appeal concerns the title to real estate. Appellant claims under a tax forfeiture and state deed. Appellee, Flossie Renn, claims under a divorce decree. The other appellees are nominal parties.
Adolph Renn and Flossie Renn were married in about 1922, and during all of their married life lived on the lands here involved. On September 26, 1940, Flossie Renn filed a suit for divorce, dower, etc. The case was heard in open court on November 30, 1940, and resulted in a decree awarding Flossie Renn a divorce, and the custody of the two children (then aged fifteen years and twelve years, respectively) and one-third interest in all of the real estate of Adolph Renn, specifically describing the lands here involved. George Bridges was appointed commissioner to lay off the said one-third interest in the lands; and if the lands could not be divided in kind then the commissioner would so report and secure an order of sale of the lands.
On October 6, 1941, the court ordered the commissioner to sell the lands and divide the proceeds. When the commissioner advertised the land sale, appellant herein, G. A. Renn (brother of Adolph Renn), filed this present suit in the chancery court against appellees herein, Flossie Renn and George Bridges, commissioner. G. A. Renn alleged that he was the owner of the lands and claimed that the proposed sale should be enjoined and the title of G. A. Renn should be confirmed and quieted. To sustain his case, G. A. Renn alleged in the complaint and testified before the court, that the lands forfeited to the state in 1934 for nonpayment of 1933 taxes; that the lands were certified to the state in 1936; that the state's title was confirmed in April, 1938, by suit under act 119 of 1935; that on October 17, 1940, G. A. Renn acquired the deed from the state; that he used his own money to pay for the deed and to affect improvement district redemptions; that after a few months he dispossessed his brother, Adolph Renn; and since 1941 G. A. Renn had been collecting the rents from the lands. He was supported by record testimony as to the forfeiture, confirmation, and deed to himself; and was supported by witnesses as to the rent, the amount of which was not shown.
Flossie Renn, by pleading and testimony, denied that G. A. Renn was the owner of the lands, and alleged that the tax forfeiture of the lands by Adolph Renn and the state deed to G. A. Renn were, together and separately, a subterfuge and a fraud to defeat her of her dower; that G. A. Renn acted as an agent of Adolph Renn in getting the state deed, and in collecting the rents; and that Adolph Renn was the owner of the lands and G. A. Renn a mere trustee; and she prayed for a decree so declaring. Adolph Renn was not called as a witness by either side. On final hearing the chancery court dismissed the complaint of G. A. Renn; and on this appeal, G. A. Renn challenges the correctness of that decree, and also urges, here, the contention made in the lower court, that certain evidence be excluded as incompetent.
Giving due consideration to this second point -- about the incompetency of certain evidence -- we are, nevertheless, of the opinion that the decree of the chancery court was correct and should be affirmed. Here are some of the facts shown in the evidence which support the contentions of Flossie Renn and the decree of the chancery court:
Flossie Renn did not know the lands were forfeited for taxes until after her divorce suit was pending. Of course she had legal notice of the forfeiture because it was of record, but she had no knowledge. She would have paid the taxes if she had known about them.
Adolph Renn had sufficient money to have paid the taxes originally if he had wanted to do so; but later made disposition of his property, so that he was either insolvent or had removed all his other property from Arkansas at the time that G. A. Renn acquired the state deed.
The divorce suit was filed September 30, 1940, and G. A. Renn secured the state deed on October 17, 1940. He allowed Adolph Renn to remain on the lands for three months and Adolph Renn paid rent at the rate of $ 5 per month for that period of time for a house on the land.
The amount that G. A. Renn paid for the state deed and for all the improvement taxes was approximately $ 200. The value of the lands and buildings was testified to be approximately $ 2,000.
G. A. Renn admitted that Adolph Renn rented the lands to Herman Helvey for 1941, and G. A. Renn "let the deal stand." Herman Helvey testified that he made the rent contract with Adolph Renn in March, 1941, (five months after the state deed to G. A. Renn); and that in the fall of 1941 the rents were paid to Adolph Renn. Helvey further testified that he never knew G. A. Renn in any part of the transaction and dealt with Adolph Renn as the owner of the land throughout the entire year of 1941. This continued possession of Adolph Renn under all the facts in this case was badge of fraud. (See Wasson v. Lightle, 188 Ark. 440, 66 S.W.2d 652, and cases there cited, and see, also, 27 C. J. S. 801 where it is stated that where there is no change of possession then the burden is on the alleged grantee to prove good faith and the payment of a valuable consideration.)
In the fall of 1941, Adolph Renn sent Flossie Renn money from the rents of that year and offered to turn over to her all of the 1941 rents on condition that she would relinquish all claims to the land. To explain this testimony G. A. Renn stated that for years he had been helping in the support of the children of Adolph Renn and that Adolph Renn had no property left, and it was for the support of the children that he (G. A. Renn) sent the money in the fall of 1941 to his brother, Adolph Renn, to be sent to the children.
G. A. Renn admitted that he knew Flossie Renn and Adolph Renn had been having marital difficulties for ten years and divorce suits had been filed and dismissed; and knowing all this he drove from his home in Middlebrook, Missouri, to Little Rock, Arkansas, for the purpose of buying from the state of Arkansas the lands in this state that he knew his brother had owned for twenty years, and that as soon as he secured the deed he went back to his home in Missouri and began immediately to collect rent from his brother at $ 5 per month for a house on the farm lands. There are other facts in the record.
It is true that fraud is not to be presumed, but must be proved. (37 C. J. S., § 114, p. 426.) It is also true that fraud may be proved by circumstantial evidence, provided it affords a clear inference of fraud and amounts to more than mere suspicion or conjecture. (37 C. J. S. 436.) When we consider the value of the land as compared with the amount that the appellant paid the relationship of the parties, the knowledge G. A. Renn had about the marital difficulties and former divorce suits, the purchase by G. A. Renn while the divorce suit was pending, the fact that G. A. Renn claimed he had been contributing to the support of the Adolph Renn family, the ready acquiescence of Adolph Renn in the loss of his property (evidenced by the immediate payment of rent to G. A. Renn), the continued exercise of ownership by Adolph Renn after G. A. Renn received the deed (as evidenced by the renting of the land to Herman Helvey for 1941, and Helvey's testimony on this point), the strangeness of one brother traveling over a hundred miles into another state and buying his brother's land for taxes (with no apparent use for his land), and, that the result of all of this was to defeat...
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