West v. West

• Decision Date: 01 November 1915
• Docket Number: 202
• Citation: 179 S.W. 1017,120 Ark. 500
• Parties: WEST v. WEST
• Court: Arkansas Supreme Court

179 S.W. 1017

120 Ark. 500

WEST v. WEST

No. 202

Supreme Court of Arkansas

November 1, 1915

Appeal from White Chancery Court; John E. Martineau, Chancellor reversed.

STATEMENT BY THE COURT.

J. A West instituted this action in the chancery court against Mary C. West. The complaint alleges, in substance, that a decree of divorce was granted to Mary C. West from J. L West; that in the decree certain commissioners were appointed to allot to Mary C. West one-third of certain lands which were decreed to belong to J. L. West; that plaintiffs were not parties to that suit; that they are children of J. L West by a former wife; that prior to his marriage to Mary C West he conveyed to them by warranty deed four hundred acres of land; and that said land belonged to them and that they had entered into possession of the same.

The prayer of the complaint is that their title to the land be quieted and that the claim of the defendant, Mary C. West, thereto be set aside as a cloud upon their title.

The defendant, Mary C. West, answered and set up that the land had been conveyed to the plaintiffs by J. L. West in fraud of her marital rights and by way of cross-complaint asked that said deed be cancelled and held for naught.

The facts are as follows:

John L. West, a man more than seventy years of age, owned four hundred and eighty acres of land adjoining the town of Letona, in White County, Arkansas. He was a widower with six children, and being desirous of providing for them, executed a deed to them to four hundred acres of said land and delivered the deed to his son, J. A. West, for the grantees. This son then entered into possession of the land for himself and the other children. He continued in possession from that time, making improvements on the land and collecting the rents therefrom.

John L. West retained eighty acres of the land next to the town of Letona, and this was the most valuable part of his land. Some of it was being laid off into town lots and sold. He also owned some lots in the town of Letona. After he deeded the land to his children they permitted him to remain on the land, and, when it was necessary for his support, gave him a part of the rent derived therefrom.

These facts were testified to by both John L. West and by J. A. West and other witnesses who resided near them corroborated their testimony. Both John L. West and his son, J. A. West, testified that the conveyances were made in order that the father might make provision for his children.

J. L. West stated that he executed the deed on May 8, 1908, conveying the four hundred acres of land in controversy to his children because he was getting old and wanted them to have the land and that he reserved the eighty-acre tract adjoining Letona for himself.

His son, J. A. West, testified that the deed was delivered to him on May 8, 1908, on the day that it was executed, and in this statement he is corroborated by the justice of the peace who took the acknowledgment. The witness stated that his father at that time lived with his children and that there had never been any talk of his marrying Mary C. West.

The defendant, Mary C. West, testified that she married John L. West on the 12th day of August, 1908, and that she was engaged to him six weeks prior thereto; that they lived together on the land after their marriage about four years until their separation and that her husband during all of this time collected the rents and exercised acts of ownership over the land. Other testimony will be referred to in the opinion.

The court found that the deed from J. L. West to his children executed on the 8th day of May, 1908, was a fraud upon the marital rights of the said Mary C. West, and said deed, in so far as it affected her interests in the land, should be cancelled, set aside and held for naught. A decree was entered accordingly, and, to reverse that decree, the plaintiffs have prosecuted this appeal.

Decree reversed and cause remanded.

John D. DeBois, for appellant.

1. Fraud will not be presumed, but must be proved, and it will not be inferred from lawful acts. 99 Ark. 45.

There is no question of vested rights involved here. John L. West had the right to execute a deed to his children by way of advancement, and thus distribute his estate, and his act in so doing was not a fraud upon the marital rights of a wife subsequently married, to whom, the evidence shows, he was not even engaged at the time the conveyance was made. 98 Ark. 328; 51 Ark. 530; 105 Ark. 318; 52 Ark. 188; 45 Ark. 481; 44 Ark. 365; 106 Ark. 9, 12.

2. Mary C. West was entitled to dower interest in the eighty acres of land and the lot retained by J. L. West, but not in the land conveyed by him before his marriage. Kirby's Dig., § 2684; Id., § 2687.

S. Brundidge, Jr., and Harry Neelly, for appellee.

The testimony clearly shows that the deed from J. L. West to his children was made for the purpose of preventing appellee from recovering any portion of the land belonging to her husband as alimony in the event suit was brought for divorce. Such being the case, the conveyance was fraudulent as to her and voidable. 14 Cyc. 798; 4 Pomeroy, Eq. Jur., § 1383, p. 2736; 142 Ia. 701, 121 N.W. 500; 24 N.E. 1030; 62 N.E. 100.

Appellee is seeking only the enforcement of an award a alimony allowed by the court to her. This is a debt due from appellant, and appellee is entitled to the same rights as any other creditor. 1 Ruling Case Law, 951, § 97; Id. 954, § 99.

The deed executed from J. L. West to J. A. West and the other interveners was merely a resulting trust, the same being placed in his hands to hold for the benefit of the grantor. 111 Ark. 45; 110 Ark. 389.

OPINION

HART, J., (after stating the facts).

The testimony in the divorce suit...