Williams v. Killins
| Decision Date | 06 May 1974 |
| Docket Number | No. 74--27,74--27 |
| Citation | 508 S.W.2d 753,256 Ark. 491 |
| Parties | Rose Mae WILLIAMS, Appellant, v. Bert Ralph KILLINS, Appellee. |
| Court | Arkansas Supreme Court |
Franklin Wilder, Fort Smith, for appellant.
John Harris, Russellville, for appellee.
Appellant seeks reversal of a chancery court decree ordering reformation of a deed and quieting title to a 45 by 122 strip of land in Pope County. Appellee and his wife, Viola, were divorced in 1965. At that time they owned a forty-acre tract of land. It was divided, pursuant to a property settlement incorporated in the divorce decree, equally in kind, by exchange of deeds giving Viola title to the western 20 acres and appellee title to the eastern 20 acres. Viola immediately conveyed her portion by warranty deed to appellant, sister of the appellee, for $3,500. The parties agreed that appellee was to have the house located on the property. Shortly after this transaction, a brother-in-law of the parties to this action, in the presence of both of them, stepped off the dividing line between the two tracts and found that it ran through the dwelling.
In 1973 appellant entered into negotiations to seel her 20 acres. A survey was run on April 6 which definitely established that the property line ran through the house. Three days later appellee signed a 'Memorandum of Agreement' wherein he acknowledged that his occupancy of the 45 by 122 section of the western 20 acres on which the house extended was with the permission of appellant and that he was making no adverse claim to the land. Subsequently, appellant conveyed her tract to Jack Price, reserving the 45 by 122 section.
On July 16, appellee filed suit in Pope County Chancery Court seeking reformation of the deed he executed to Viola and praying his title to the strip in controversy be quieted. The petition alleged mutual mistake in the deed to Viola and further asserted appellee's right to the property by adverse possession. There is no allegation of mutual mistake in the deed from Viola to appellant, but since this was all part of the same transaction we will treat the allegation, as both the parties and the court below appear to have done, as applying to both deeds. Following a hearing on September 20, 1973, the chancellor, by a nunc pro tunc decree made and entered on that day, ordered reformation of the deed from Viola to appellant and quieted appellee's title to the land in controversy. This appeal followed.
We will set aside the findings of the chancellor only if they are clearly against the preponderance of the evidence. Hendrix v. Hendrix (1974), 256 Ark. ---, 506 S.W.2d 848; Williams v. Campbell, 254 Ark. 592, 495 S.W.2d 512. Having reviewed all the evidence, we find that the chancellor's ruling granting reformation and quieting title in appellee was against the preponderance of the evidence.
The allegation of mutual mistake in appellee's petition is that both he and Viola mistakenly believed the house was on the eastern tract. According to appellee's testimony, at the time of the divorce decree all the parties thought the dwelling was on the eastern section. Viola testified that at the time of the divorce she was willing to allow appellee to have the house but that no dividing line was ever run and she had no idea where the line would have been had it been surveyed. Appellant testified that when she took the deed from Viola she did not know where the property line ran but that it made no difference to her since, regardless of its location, appellee was to have the use of the house. Appellee testified that the agreement was to divide the tract down the middle. As previously noted, shortly after appellant received her deed, she and appellee were present when her brother-in-law stepped off the property line and found that the house was astride the line. Appellee admitted that, shortly thereafter, and before appellant left to return to her home in California, appellant had told him that he could use the house as long as he lived in it and used it as his residence. Following the April 6, 1973, survey, appellee signed the memorandum admitting he occupied the small tract in controversy with his sister's permission.
To be entitled to reformation of a written instrument upon the ground of mutual mistake, a party must show beyond reasonable controversy that the mistake was mutual. Kromray v. Stobaugh, 212 Ark. 377, 206 S.W.2d 171; Parker v. Carter, 91 Ark. 162, 120 S.W. 836, 134 Am.St.Rep. 60. The evidence must be clear, unequivocal and decisive. Booe v. Booe, 210 Ark. 709, 197 S.W.2d 474; Corey v. The Merchantile Insurance Co. of American, 205 Ark. 546, 169 S.W.2d 655; Cherry v. Brizzolara, 89 Ark. 309, 116...
To continue reading
Request your trial
-
Winkle v. Grand Nat. Bank
...so they could make payments on the principal. Proof to establish the right of reformation must be clear and decisive. Williams v. Killins, 256 Ark. 491, 508 S.W.2d 753; Goodrum v. Merchants and Planters Bank, 102 Ark. 326, 144 S.W. 198. There is, however, no requirement that the proof be un......
-
Orr v. Orr, CA 08-1366 (Ark. App. 9/9/2009)
...stronger evidence is required to support the claim than in cases where the family relationship does not exist. Williams v. Killins, 256 Ark. 491, 508 S.W.2d 753 (1974). The reason for this rule is that, as between parties with family relations, the possession of the land of one by the other......
-
McJunkins v. McJunkins
...stronger evidence is required to support the claim than in cases where the family relationship does not exist. Williams v. Killins , 256 Ark. 491, 508 S.W.2d 753 (1974).V. DiscussionA. Area Enclosed by the Hog–Wire FenceAppellants argue that they acquired the land enclosed by the hog-wire f......
-
Phillips v. Carter, 78-62
...husband was a second cousin to appellant, Mrs. Phillips, brings this case within the perimeters of our holding in Williams v. Killins, 256 Ark. 491, 508 S.W.2d 753 (1974), that stronger evidence is required to prove adverse possession against a family Affirmed. We agree: HARRIS, C. J., and ......