Rushton v. Isom

• Decision Date: 19 October 1942
• Docket Number: 4-6836
• Citation: 164 S.W.2d 997,204 Ark. 804
• Parties: RUSHTON v. ISOM
• Court: Arkansas Supreme Court

164 S.W.2d 997

204 Ark. 804

RUSHTON v. ISOM

4-6836

Supreme Court of Arkansas

October 19, 1942

Appeal from Columbia Chancery Court, Second Division; W. A. Speer Chancellor; affirmed.

Decree affirmed.

Harry B. Colay, for appellant.

Melvin T. Chambers, for appellee.

OPINION

SMITH, J.

This is a suit to quiet the title to a lot "200 feet by 240 feet in the east one-half of block 8 of the original survey of the town of Emerson."

This relief is prayed upon the following allegations and testimony. The lot was owned by a bank of which T. S. Grayson was president. Grayson agreed to sell the lot to appellee for the cash consideration of $ 225, and appellee entered into the possession of the lot in 1934. It was contemplated that the purchase price be paid by the 1st of the following year but being unable to make the payment at that time, appellee requested Henry Rushton to pay for the lot and to take a deed to himself as security until she could repay him the purchase money. Rushton paid the bank the $ 225 purchase money, and took a deed to the lot in his own name, as it was agreed he should do. Extensive repairs were required, and were made the cost of which is disputed, and there is some controversy as to who paid for them, including the cost of digging a well.

Rushton died without having made a deed to appellee. After his death his widow and heirs-at-law conveyed to a son of Rushton, and when the widow and heirs refused to make appellee a deed, this suit was brought to compel this action, and from a decree awarding that relief is this appeal.

If the case presented no facts other than those just recited, the relief prayed would have to be denied, for the reason that as the agreement between appellee and Rushton for the purchase of the lot rested in parol, and Rushton paid his own--and not appellee's--money for the lot, the statute of frauds would forbid its enforcement.

It was held in the case of Robbins v. Kimball, 55 Ark. 414, 18 S.W. 457, 29 Am. St. Rep. 45, to quote a headnote, that "One who pays for land and takes deed to himself is not bound by a parol agreement to let another have an interest in the land upon payment of a portion of the expenses incurred in acquiring the title, nor by a parol agreement to purchase for himself and the other jointly."

This holding has been reaffirmed in a number of subsequent cases which are cited and reviewed in the case of George v. Donohue, 191 Ark. 584, 86 S.W.2d 1108.

But there are other facts which must be considered, one of which alone is decisive of the case, that is, the validity of a receipt reading as follows: "On this day the 31st of August, 1937, I, Henry Rushton received from Lavada Isom the sum of $ 300, making a total of $ 550 received from her for the purchase of the following land and improvements thereon 200 x 240 feet of land, east side of block 8, original survey, located in the town of Emerson, county of Columbia, state of Arkansas. (Signed) Henry Rushton."

It may also be said that the statute of frauds is not pleaded in this case, and that, according to appellee's testimony, she was placed in possession of the lot pursuant to her agreement to purchase it, and remained in possession of it until 1940, at which time she was ejected, whereupon she brought this suit.

All the witnesses, including several who testified on behalf of appellants as handwriting experts, admit that the name signed to the receipt is the genuine signature of Henry Rushton. It was their opinion, however, that the typewritten recital of the payment of money did not appear on the paper when Rushton signed it.

In their opinion, the paper in question was the top of a paper writing, probably in pencil, which Rushton had signed, and that this writing had been erased and the...