Tribble v. Tribble

• Decision Date: 11 April 1927
• Docket Number: 349
• Citation: 293 S.W. 705,173 Ark. 561
• Parties: TRIBBLE v. TRIBBLE
• Court: Arkansas Supreme Court

293 S.W. 705

173 Ark. 561

TRIBBLE v. TRIBBLE

No. 349

Supreme Court of Arkansas

April 11, 1927

Appeal from Garland Chancery Court; W. R. Duffie, Chancellor reversed.

Decree reversed and cause remanded.

A B. Belding, James E. Hogue and Gibson Witt for appellant.

Martin Wootton & Martin, for appellee.

OPINION

SMITH, J.

This suit was brought to cancel a deed and a deed of trust, and in support of the complaint praying that relief, the following testimony was offered: W. O. Tribble, the plaintiff, was forty-nine years old at the time his deposition was taken, and had been a chronic sufferer and unable to work for many years. He described his ailment as ossification, and his condition is pitiful. He is dying constantly, and yet lives in helpless misery. He is unable to perform the smallest service for himself, and one of his sisters testified that he required the almost constant care of one person, and has been in a rolling- chair for about six years. Plaintiff married a daughter of Y. A. Pearson, and two children were born to this union, one a married daughter named Ollie May Aldridge and the other a daughter named Annie.

The testimony of the wife and married daughter leaves the distinct impression that neither had any affection and but little sympathy for the husband and father. Tribble testified that he was compelled to leave his home and to go to the home of his sisters to receive the attention his condition required, and that neither his wife nor his daughter, Mrs. Aldridge, would have anything to do with him or come to see him, and that Mrs. Aldridge refused to answer his letters. His little girl came to see him occasionally. Mrs. Aldridge admitted that she had never done anything for her father, but stated that her physical and financial condition did not permit her to do so.

On July 27, 1918, Tribble brought suit for divorce against his wife in Clay County, Mississippi, where they both resided, and alleged cruelty and neglect and physical violence as grounds therefor. His wife answered, and denied these charges, and filed a cross-complaint in which she prayed a divorce on grounds similar to those alleged in the complaint of her husband. This suit was compromised and settled through the intervention of Mr. Pearson, plaintiff's father-in-law. Mr. Pearson appears to have been a man of wealth and of dominating personality, and to have had considerable influence over Mr. Tribble. Under the settlement effected, Mrs. Tribble executed to her husband a contract releasing all claim to his Hot Springs property, and received from him a deed to other property in Mississippi and Texas. Tribble referred to this settlement as an equal division of his property with his wife. The divorce suit was dismissed.

Mrs. Tribble brought suit for divorce, and Tribble wrote a letter to the presiding judge, in which he stated that, if his wife was asking only a divorce, he would not file an answer, but, if she prayed alimony, he asked a postponement until he could employ an attorney. A divorce only was prayed, and no answer was filed, and a divorce was granted. This decree was rendered November 15, 1921.

Tribble and Pearson owned a lot as tenants in common of equal interests in the city of Hot Springs, and, on February 2, 1921, Tribble borrowed from Pearson $ 300, and gave as security therefor a deed of trust on his undivided one-half interest.

Tribble had heard of a doctor in Ohio who, he thought, might give him some relief, and he borrowed the money to get this treatment. His proposition was to pay the money back at the rate of $ 100 a year, and, to secure this money, he first proposed to assign to Pearson his half of the rent until the debt was paid. Pearson stated that he did not regard this as sufficient security, and the deed of trust here sought to be canceled was executed, and, at the same time and for the same consideration, and as further and additional security, Tribble executed a deed to his wife and two children to his undivided half interest in the Hot Springs property. The deed and the deed of trust described the same property. By this deed Tribble conveyed his undivided half interest to his wife and children, reserving to himself the control, use, profit and right of occupancy for his life. This is the deed which Tribble seeks to cancel.

Tribble testified that he did not read this deed, and that he understood it was in effect a will, and that it was agreed between himself and Pearson that neither the deed of trust nor the deed should be recorded, and that both instruments would be canceled and surrendered to him when the $ 300 loan, with the interest thereon, was repaid, and that, in violation of his agreement, Pearson caused both instruments to be recorded a few days after their execution. This deed was defectively acknowledged, and it appears to be conceded that it was not entitled to be recorded on account of this defect.

Pearson died October 11, 1923, and this suit was not brought until after his death. Tribble explained this delay by saying that he did not commence the suit earlier because the indebtedness secured by the deed and the deed of trust had not been fully paid in the lifetime of Pearson.

Tribble also testified that he executed the instruments which he here seeks to cancel because he had confidence in Pearson and believed that he would do as he agreed, and, as he expected to repay the money, he did not hesitate to give any security required, and that both instruments were executed to secure the $ 300 loan. His necessities were pressing, and he hoped for surcease from further suffering, if not complete relief. Since the execution of these instruments Tribble has paid the taxes each year in his own name on his own undivided half interest.

When Pearson died, both the deed and the deed of trust were found with his papers, and the administrator of his estate testified that he mailed the deed to Mrs. Aldridge. Tribble testified that Mrs. Aldridge admitted to him that she and her mother knew nothing about this deed until after Pearson's death. Both Mrs. Tribble and Mrs. Aldridge denied that they were not advised of the existence of the deed. They testified that they knew it was to be executed, and had been executed and was in the possession of Pearson. Mrs. Tribble admitted that she kept other valuable papers of her own in a safety deposit box in Clarksdale, Mississippi.

Tribble removed to the home of his sisters in 1918, and has since resided with them. He and they both testified that he desired to give them some compensation for their attention to him, and that, having agreed that services already rendered were worth $ 2,500, he executed to them a deed to his own undivided half interest in the Hot Springs property. The consideration for this deed was service already rendered and the continued care of appellant, and, in addition, these sisters deeded to their brother an undivided third interest in their home in Mississippi, where they lived.

These sisters filed an intervention in this suit, in which they claimed title to the lot in question, and they testified that, when the deed to them from their brother was executed and delivered, they were unaware of the prior deed from their brother to his wife and children.

There was offered in evidence an affidavit which Tribble made, which reads as follows:

"State of Mississippi, Clay county. This is to certify that I signed and delivered a deed to my Hot Springs property to my former wife and children, which deed was recorded in book 112, page 378, of the land records in Hot Springs, Arkansas, and later I executed a conveyance to my two sisters covering the same property, which deed was signed under compulsion when I was very ill.

"It is my desire that the deed recorded in book Vol. 112, page 378, remain on record, and the one to my sisters canceled, same having been obtained against my will, the consideration claimed in it being already paid.

"W. O. Tribble.

"Sworn to and subscribed before me this the 7th day of January, A. D. 1922. T. J. Watson, J. P. Dist. 4."

Much testimony was offered concerning this affidavit. Tribble and his sisters testified that Mr. Aldridge came to their house one day and stated that his wife wanted Tribble to spend the day with them. It was raining, and the sisters protested against Tribble being carried to Aldridge's home that day, but Aldridge persisted and prevailed, and Tribble was carried to Aldridge's home. Tribble testified that, when he arrived at Aldridge's home, his daughter proposed that she would take him and take care of him for the remainder of his life if he would sign an agreement that, in consideration therefor, she might have his property after his death, and that he signed what he supposed was a contract to that effect. What he supposed was a contract proved to be the affidavit set out above. Tribble was carried home that afternoon after signing the affidavit, and the sisters testified that he was in high spirits on his return, and stated that he had made a contract with his daughter whereby she had agreed to take care of him for the remainder of his life. Tribble and his sisters all testified that the sisters agreed to this arrangement, but Mr. Aldridge refused to take appellant into his home. The execution of this affidavit was the last transaction between Tribble and Mrs. Aldridge, and she did not at any time offer to take him into her home.

Mr. and Mrs....