Ussery v. Ussery

• Decision Date: 04 May 1914
• Docket Number: (No. 296.)
• Parties: USSERY et al. v. USSERY.
• Court: Arkansas Supreme Court

166 S.W. 946

USSERY et al. v. USSERY.

(No. 296.)

Supreme Court of Arkansas.

May 4, 1914.

Appeal from Garland Chancery Court; J. P. Henderson, Chancellor.

Suit by Stella Ussery against J. M. Ussery and another. From a decree for plaintiff, defendants appeal. Reversed and remanded, with directions to dismiss complaint for want of equity.

A. Curl, of Hot Springs, for appellants. M. S. Cobb, of Hot Springs, for appellee.

McCULLOCH, C. J.

This is an action instituted on March 7, 1913, in the chancery court of Garland county, by Stella Ussery against her husband, J. M. Ussery, to enforce an alleged trust in her favor under a deed executed by one Robbins to said J. M. Ussery, dated November 27, 1908, conveying a tract of 80 acres of land situated in Garland county. Defendant J. M. Ussery executed to his codefendant Curl a deed, conveying the land in controversy, about the time of the institution of this action, and the latter was also made a party defendant. The answer contains a denial of all the allegations of the complaint with respect to the consideration for the deed from Robbins to J. M. Ussery, and alleges that Ussery paid a valuable consideration for said conveyance.

The allegations of the complaint are that, on the date mentioned, plaintiff's stepfather, Charles Foster, purchased the land in controversy from Robbins and caused the deed of conveyance to be executed by Robbins to plaintiff's husband, J. M. Ussery; that Foster paid the consideration for the conveyance; and that "he had the deed made to James Ussery, the defendant herein, to hold in trust for the sole use and benefit of plaintiff." The allegations of the complaint are not sufficient to take the case out of the operation of the statute of frauds, for, at most, the alleged agreement constitutes an express trust, which cannot be ingrafted by parol testimony upon a written deed of conveyance. Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848. There was an attempt, however, to bring the case within the principles upon which a trust ex maleficio may be declared.

Plaintiff and defendant had been married many years before this transaction occurred, and had children the issue of their marriage. They had up to that time lived together happily, so far as this record reflects the facts. Plaintiff was in ill health, being subject to epileptic fits, and they lived in the neighborhood of their mother, who was the wife of Charles Foster, the purchaser of the land from Robbins.

Defendant J. M. Ussery testified that, at the request of Foster, he negotiated the purchase of a quarter section of land from Robbins, of which the 80 acres in controversy was a part, and that, in consideration of his services in negotiating the purchase at a very low price, Foster agreed to have the 80 acres in controversy conveyed to him. The chancellor found against defendant Ussery on that point, however, and we accept those findings as correct.

Foster testified that he purchased the quarter section of land from Robbins, and, desiring to contribute something to the support of his stepdaughter and her children, he caused the conveyance of the 80 acres in controversy to be made to J. M. Ussery. He testified that there was no agreement with Ussery at all with reference to the land; that he voluntarily had the conveyance made to the latter "to help...