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law which we have herè expressed render it that he therefore had the contract for the unnecessary to discuss them. purchase of the land made in the name of

Finding no prejudicial error, the judgment his wife, but that he advanced and furnished is affirmed.

DOYLE et al. v. DAVIS et al. (No. 168.) (Supreme Court of Arkansas. Feb. 12, 1917.)

the consideration for the deed, intending all the while that the purchase should inure to his benefit.

were

Bettie Elder died January 26, 1894, leaving surviving her certain minor children, who 1. TRUSTS_89(2)-RESULTING TRUST-EVI- brought to recover the possession of the propthe plaintiffs below in the action DENCE-SUFFICIENCY. In a suit by the purchaser from the hus-erty, and are the appellees here. band of the grantee to whom a railroad conveyed certain lands, evidence held not to show that there was a resulting trust in favor of the husband, who furnished the consideration, but had the deed made to his wife because the railroad refused to convey to him after his default on a former purchase, so clearly and convincingly as to overthrow the title of the heirs of the wife. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 135.] 2. EVIDENCE

LARATIONS.

271(15)—SELF-SERVING DEC

In a suit to establish a resulting trust in favor of plaintiff's grantor in lands conveyed to his wife, self-serving declarations of the grantor that he claimed the land cannot be considered. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1092, 1093.]

3. TRUSTS 88, 89(5)-RESULTING TRUST PAROL PROOF.

A resulting trust may be established by parol, but such evidence is received with great caution, and the courts require the proof to be full, clear, and convincing.

On October 6, 1901, G. D. Elder entered into a contract with one G. W. Hunt for a lease of the land, with an option to purchase. The names of his children were recited as parties to this contract, although they did not sign it. Hunt assigned this contract to one D. M. Doyle, who later died, and his wife and administrator tendered performance of its unfinished conditions. Appellees, as heirs of their mother, declined to accept the tender of the unpaid purchase money, and brought this suit to recover possession of the land.

Appellants in their brief say:

"The sole question we desire to raise upon this appeal is whether or not the act of G. D. Elder causing the deed from the Iron Mountain Railway Company to be made to his wife was intended as a gift or not."

[1] Appellants contend that by the pay[Ed. Note.-For other cases, see Trusts, Cent.ment of the purchase money for the purpose Dig. 88 130, 131, 133, 137.] of evading the rules of the railroad company

that decision.

4. TRUSTS 86- RESULTING TRUST-CON- there is a resulting trust in favor of the husVEYANCE TO WIFE-CONTROL BY HUSBAND. band. The court below found otherwise, and Where a husband pays the consideration, but the conveyance is made to the wife, it is this appeal has been prosecuted to reverse presumed that a gift was intended, and a trust does not result even if the husband thereafter exercised control over the premises, since such control can be referred to his natural desire to care for his wife's property and when exercised after her death to his rights as a tenant by the curtesy.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 128.]

Appeal from Faulkner Chancery Court; Jordan Sellers, Chancellor.

Suit by Mrs. Maude Doyle and others against Mrs. Mattie Davis and others to recover possession of land. Decree for complainants, and defendants appeal. Affirmed. Brundidge & Neelly, of Searcy, for appellants. J. C. & Wm. J. Clark, of Conway, for

appellees.

SMITH, J. The St. Louis, Iron Mountain & Southern Railway Company, by its deed dated November 29, 1892, conveyed to Bettie E. Elder, the lands here in controversy; but it is alleged by appellants that the conveyance was thus made to her, instead of to her husband, G. D. Elder, because he had contracted to purchase this land from the railway company, but had defaulted in his payments, and a rule of that company forbid the making of a second contract with a person who had defaulted in a prior one, and

Elder testified that he caused the deed to be made in his wife's name because the railroad company refused to make a deed to him, and that he paid the purchase money, and that he exercised ownership of and control over the land, but that it belonged to his wife. He also testified that he executed the lease contract of October 29, 1901, to convey his right of curtesy as husband of Bettie Elder, and that in executing this contract he was representing himself as well as his children, although he did not sign their names to the contract, and no attempt is made to show that he had this authority. On December 30, 1912, Elder deeded his curtesy right

to his children.

[2] There was testimony in regard to cerdeath of his wife which tended to show his tain statements made by Elder after the claim of the title to the land. But we think these self-serving statements cannot be considered. The testimony shows that Elder never at any time undertook to have asserted a trust in his favor, but in the lease under

which appellants seek to assert title Elder recited the names of his children as grantors. Elder was asked this question:

"State whether or not this land, after it was conveyed to Bettie Elder by this deed, was it your property, or the property of the plaintiffs

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in this case by inheritance from their mother | his natural desire to manage and care for after her death." his wife's property.

He answered:

We think, when this test is applied to the

"One half of that by inheritance, and the evidence in this case, that we should not overother deeded to them by me." turn a title which has been outstanding for many years in the name of the heirs of Mrs. Elder, especially in view of the fact that she has long been dead, and many years have expired since the original purchase of the land. The decree of the court below is therefore affirmed.

It is argued that this answer shows that Elder did not at any time consider his wife the sole owner. But this is not necessarily the case. The witness had a curtesy interest, and, as he was 60 years old at the time of testifying, his curtesy at the time of his conveyance represented a large per cent. of the value of the land, and this answer does not necessarily conflict with his statement that the title to the land was in his wife.

At any rate, we think it cannot be said that the chancellor's finding that the proof is insufficient to support a finding that there was a resulting trust is against the preponderance of the evidence.

[3] In the case of Colegrove v. Colegrove, 89 Ark. 182, 116 S. W. 190, 131 Am. St. Rep. 82, this court discussed the quantum of proof necessary to establish the existence of such a trust, and while it was there said that resulting trusts may be established by parol, such evidence is received with great caution, and the courts uniformly require the proof to be full, clear and convincing. The court quoted from the case of Tillar v. Henry, 75 Ark. 446, 88 S. W. 575, the following state

ment of the law:

FARMERS' STATE BANK v. SOUTHERN
COTTON OIL CO. (No. 163.)
(Supreme Court of Arkansas. Feb. 12, 1917.)
1. GARNISHMENT 27-PROPERTY SUBJECT-
SHARES OF STOCK.

The plaintiff, in an action against an indi vidual, instead of garnishing the bank in which such individual held stock, should have followed the proceedings provided by Kirby's Dig. §§ 3235, 3236, providing for execution on shares of stock in corporations.

[Ed. Note. For other cases, see Garnishment, Cent. Dig. §§ 45, 46.] 2. GARNISHMENT

FAULT JUDGMENT.

146-JUDGMENT-DE

In an action against an individual wherein a bank in which such individual owned stock was garnished, and returned answer which plaintiff moved to have made more specific, it was an abuse of discretion for the court to render judgment by default against the garnishee without giving it time to make its answer more specific.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 274.]

Appeal from Circuit Court, Lonoke County; Thos. C. Trimble, Judge.

"Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the evidence offered for this purpose must be of so positive a character as to leave no doubt Action by the Southern Cotton Oil Comof the fact,' and sometimes it is expressed as requiring the evidence to be 'full, clear, and pany against C. C. Bailey, wherein the Farmconvincing,' and sometimes expressed as requir-ers' State Bank was garnished. Judgment by ing it to be clearly established.'

default against the garnishee, and it ap

A number of cases decided by this court peals. Reversed and remanded. are there cited.

[4] It is true Elder exercised the ordinary acts of ownership over the land, but he had the right to the possession and occupancy as a tenant by the curtesy. And in the case of Poole v. Oliver, 89 Ark. 580, 117 S. W. 748, it was said:

"Where a husband purchases land and procures the deed to be made to his wife, the presumption is that he intended it as a gift, and

a trust does not result in his favor. This presumption may be rebutted by evidence of facts showing the husband's intention to have been that his wife should have the land as trustee, and not for her own benefit; but such facts

must have existed or taken place antecedently or contemporaneously with the conveyance, or so soon thereafter as to form a part of the transaction. Milner v. Freeman, 40 Ark. 62; Robinson v. Robinson, 45 Ark. 484; Chambers v. Michael, 71 Ark. 373 [74 S. W. 516]; Womack v. Womack, 73 Ark. 281 [83 S. W. 937, 1136]; O'Hair v. O'Hair, 76 Ark. 389 [88 S. W. 945]."

And the same case is authority for the statement that the subsequent use and occupation of the husband, of itself is referable to

Geo. M. Chapline, of Lonoke, for appellant.

HART, J. The Southern Cotton Oil Company obtained judgment in the circuit court against C. C. Bailey for the sum of $274. Subsequently it sued out and obtained a writ of garnishment against the Farmers' State Bank. The bank filed an answer in which it stated that the defendant, C. C. Bailey, had no money, goods, or chattels in its hands except $500 of stock of the bank, and that the bank had a lien on said stock to secure a loan of $The answer of the bank was

duly verified by its president.

The Southern Cotton Oil Company filed a motion to make the answer more specific. The motion was sustained by the court and the bank ordered to make its answer more specific. On the same day judgment by default was rendered against the garnishee for the sum of $274 and the accrued interest. To reverse that judgment the bank prosecutes this appeal.

[1, 2] Sections 3235 and 3236 of Kirby's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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damages for fraud against the agent, though he
can defend recovery on the notes given the
agent on that ground.

Purchaser, Cent. Dig. § 67.]
[Ed. Note.-For other cases, see Vendor and

Digest provide how an execution may be
levied on shares of stock in corporations, and
the plaintiff in execution should have follow-
ed the proceedings provided by those sections
instead of suing out a writ of garnishment.
Moreover, if garnishment had been the prop-
er remedy, the court abused its discretion by
rendering a judgment by default against the Suit by L. P. Coleman against E. J. Mitch-
bank without giving it time to make its ell and another to recover the amount due
answer more specific, as required by the or-on notes given for the purchase of land, in
der of the court.

It follows that the judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion.

MITCHELL et al. v. COLEMAN. (No. 161.) (Supreme Court of Arkansas. Feb. 12, 1917.) 1. PRINCIPAL AND AGENT 23(5) EVI

DENCE OF AGENCY-SUFFICIENCY.

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor.

which the defendants filed a cross-complaint to recover damages for fraud in the sale of the land. From a decree denying to both parties the relief prayed for, both appeal. Affirmed.

This suit was instituted by the appellee against appellants. Appellee alleged in his complaint that on the 26th day of February, 1912, he sold to Mrs. Maud O. Mitchell a tract of real estate situated in Benton county, Ark., and that as part of the purchase price appellants agreed to pay $3,000, and interest, which sum was a first lien on the land, held by one Velma Barry, and also executed to appellee their five joint promissory notes for $110 each, bearing interest at the rate of 8 per cent. per annum from date until paid; that a vendor's lien was retained on 158-FRAUD OF the real estate mentioned to secure the payAGENT OF VENDOR-LIABILITY OF PRINCIPAL. A vendor is bound by the fraudulent acts ment of these notes; that the appellants failand declarations of his agent while acting with-ed to pay the $3,000 vendor's lien according in the scope of his authority.

In an action on purchase-money notes, where defendant filed a cross-complaint for damages for fraud, the chancellor's finding that the one who made the misrepresentations to defendant was acting as plaintiffs' agent held not clearly against the preponderance of the evidence. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 41.]

2. PRINCIPAL AND AGENT

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 589–598.] 3. Vendor and PURCHASER

33-FRAUD OF VENDOR-REPRESENTATIONS AS TO LAND. Where the purchaser of land was a carpenter, known to the vendor's agent to be ignorant of farm values, representations made by the agent as to the number and quality of fruit trees on the land, known to him to be false, or made with intent to have them acted on without knowing whether they were true or false, are fraudulent.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66.]

4. VENDOR AND PURCHASER 317 REMEDIES OF VENDOR-FINDING-JOINT SALE. Where an agent to sell land arranged to trade it for city property, which the owner did not care to take, and to take notes for the balance, and in order to effectuate the trade, the owner conveyed to the agent and the agent to the purchaser, a finding by the chancellor, in suit on the purchase-money notes, that the owner and agent jointly sold the property, while not technically accurate, can be construed as a finding of the real transaction.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 934-937.] 5. VENDOR AND PURCHASER

to the terms of the contract of Velma Barry, and that she foreclosed her lien; that by the failure of the appellants to perform their contract the real estate was sold without any fault or carelessness on the part of the appellee, and appellee asked for judgment in the sum of $550, and interest.

Appellants in their answer admitted that appellee sold the land to Mrs. Mitchell, and that they executed the notes in suit, and that Barry had foreclosed the lien. They al

leged that the lien of $3,000 was reserved in

the deed to Mrs. Maud O. Mitchell, and denied that they owed the appellee any sum whatever. The appellants set up that E. J. Mitchell had been engaged in carpentering the greater part of his life, and had no experience whatever in farming, fruit growing, or the values of farms and fruit lands, all of which appellee well knew at the time; that appellee and one Porter, his agent, represented to appellant E. J. Mitchell, the husband of Maud O. Mitchell, that he (appellee) had a farm near Gentry, in Benton county, 43(1)-REME-Ark., for sale or trade; that appellee falsely DIES OF PURCHASER-FRAUD-ESTOPPEL. represented that the real estate was of the Where, in order to carry out a trade of value of $6,500; that there were 44 acres of farm property for city property, which the owner of the farm did not care to accept, the agent first-class bearing apple orchard, 4 acres of took a deed to the farm giving his vendor lien first-class bearing peach orchard, and 6 notes therefor, and then deeded it to the owner of the city property in exchange for that propacres of bearing pears, all in good condition; erty, the assumption of the vendor's lien notes, that these representations were material; and the giving of certain additional notes, and that they were false, and that appellee well thereafter the purchaser of the farm, after keep-knew them to be false, and that appellants ing possession for one year, permitted the vendor's lien notes to be foreclosed, without making not knowing the value of the land relied on any claim of fraud, he is estopped to claim the representations; that the land was not

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plaint about the condition of the place or about any false representations having been made in the trade. Appellee did not know at the time he made the trade whether Mitchell had ever had any experience in farming or not.

worth exceeding the sum of $3,500; that by | Appellee did not authorize Porter to make reason of the false representations appel- any representations about the farm, and if lants were induced to enter into the contract he made any he had no authority to do so. of purchase and to execute the notes, and Appellee did not know what occurred bedeeded to the appellee as a part of the con- tween Porter and Mitchell. Mitchell told sideration for the purchase thereof their appellee that he had examined the farm and home in Little Rock, which was of the value was satisfied with it. He made no objection of $3,000. They prayed that they have judg-to the conuition of the orchard, nor the num ment for the sum of $3,000 and that appellee ber of acres. Appellee was acting as the take nothing by his suit on the notes. agent of Mrs. Velma Barry in selling the The appellee replied to the answer and farm. She did not want the Mitchell propcounterclaim, denying the allegations there- erty at all, and his commission for making of, and alleged that appellee had his farm the trade was in the $550 notes. Mitchell advertised for sale, and that E. J. Mitchell took possession of the property after the saw such advertisement and wrote to appel-trade and lived on it with his family until lee in regard to it, and that they afterwards Barry foreclosed and never made any commade the trade; that appellants traded upon their own judgment with knowledge of appellee's place after seeing it; that appellee had not seen the farm himself which he traded to appellants for about two years prior to that time, and informed appellants of that fact. Appellee alleged that the place was Appellee testified that he tried to sell the worth as much as $6,500. He further al- property acquired from the appellants at leged that E. J. Mitchell represented that the $2,000, but was unable to do so. He took the place he traded to appellee in Little Rock property at Mitchell's figures, $4,000, to get was worth $4,000, and was put in the trade what he could out of it. Barry did not want at that sum; that there was $1,250 against the Mitchell property with the mortgage on the property, and in the trade appellee paid it, and would not take it, and told appellee in cash $1,250, and also $400 in cash to J. to take it and get what he could out of it as H. Barry as agent for his wife, who in fact his compensation. He finally got rid of it owned the property at the time; that appel-by trading it with some other stuff without lee had the land deeded to him, and he deeded the same to Maud O. Mitchell, and appellants assumed notes for $3,000 which appellee had executed to Barry, and also executed the notes for $550 to appellee; that appellee had paid out in cash on the property traded to him by appellants the sum of $1,650; and that this property in Little Rock, instead of being worth $4,000, was worth not exceeding $2,000.

any profit to himself.

There was other testimony on behalf of the appellee tending to show that about the average market value of the place that appellee traded to appellants was $60 per acre. There was also testimony on behalf of the appellee tending to show that the Mitchell property traded by the appellants to the appellee was worth all the way from $1,800 to $2,500.

Appellee testified substantially as follows: E. J. Mitchell, on behalf of the appellants, That the five notes in suit were executed by testified that he had never been a farmer bethe appellants to the appellee as a part of the fore he made the deal about the Barry place; consideration for the trade between appellee had no experience about farm values, orand appellants; that appellee did not solicit chards, etc. He saw an advertisement in the E. J. Mitchell to buy the farm, but that Gazette, signed by L. P. Coleman, of an 84Mitchell saw appellee's advertisement in the acre fruit farm in Benton county for sale, 54 Gazette of the farm for sale; that appellee acres in apple, pear, and peach orchard, just had not seen the farm since 1910, and the in its prime; good house, barn, and improvetrade was made with appellants in January ments. He traded the property in Little and February, 1912; that when appellee Rock to appellee for this farm. Appellee was last saw the place it was in good condition; engaged in the real estate business, and Portthat when he first saw it it was owned by er was his partner, and was assisting him as one West; that witness, acting for West, his agent. Porter made nearly the whole who lived in Independence, Kan., had traded deal himself. Porter represented the place it to a man in Argenta, and the considera- in Benton county as 84 acres, 54 acres in tion in the trade was $6,500; that the pur-first-class bearing fruit trees, 44 in pears, 80 chaser, T. B. White, had the deed made to trees to the acre. This would make several Velma Barry, his daughter; that Mitchell thousand trees. He told witness that the went with one Porter to look at the land, place was worth $100 an acre. Witness was appellee advised Mitchell to go look at it; not shown the place. They went out and sat that Porter was not appellee's partner, but in the lane. He represented that the trees was a real estate agent in the same office were between eight and nine years of age. with appellee; that he had never seen the Witness did not know anything to the concountry, and wanted to see it, and Mitchell trary, and he doubted whether an experiknew that Porter had not seen the country. [enced man in that kind of weather could

were diseased and dying; that defendants had the right to rely upon said representations, and did rely upon them as true: that they were material and were the inducement to the defendants to make said purchase; and that thereby the defendant Maud O. Mitchell has sustained damages in excess of said indebtedness sued on, but she is estopped from recovering said excess, because she permitted Barry to foreclose on the $3,000 note and vendor's lien, which were part of the purchase money, without making any defense, or resisting said foreclosure, but voluntarily let said farm be sold in said fore

have told the difference. He relied upon their prime, but as a matter of fact they the representations of Porter. Witness learned a short time after the trade was made that the place was not worth half what he paid for it. It sold for $3,000. There was only about 80 acres in the whole place, and 30 or 33 acres in orchard; about 20 acres in apple orchard, practically all dead, and none of them bearing. There was not 8 acres in peach trees on the farm. They had cut them down the year before witness got there. No fire got in the orchard and burned the same after witness got there. The property in Little Rock that witness traded to appellee was worth about $4,200. There was $1,000 or $1,200 against it. Witness valued their prop-closure suit and proceeds applied as a payerty at $4,000, and gave appellee $3,550 difference. Appellee got property worth $4,200, and the notes and the $3,000 vendor's lien assumed by the appellants for nothing. Witness wrote to Coleman (appellee) and thought he had told about Porter's misrepresentations. Witness did not know much about law or the papers. He did not know that he was getting the place from Barry. After the suit was instituted by Barry against Mitchell in the chancery court to foreclose the vendor's lien Mitchell wrote Barry proposing to compromise and settle that suit, and stating the terms, but in this letter he made no complaint to Barry of the trade by which he had acquired his interest in the property. On the contrary, he stated to Barry that he had paid about $4,000 on the place, and did not propose to be thrown out the first year, and offered to make certain arrangements for extending the loan for six years, with the payment of interest, and agreeing in addition to make certain improvements on the property. Mrs. Mitchell testified that Coleman's partner Mr. Porter represented in her house in Little Rock that there were 84 acres in the place, 54 acres in fruit, 6 in pears, 4 in peaches, and the rest in apples, all in first-class bearing condition.

ment and by offering to Barry to pay same after foreclosure proceedings were instituted.

The court thereupon entered a decree canceling the notes sued on and dismissing appellee's complaint for want of equity, and entered a further decree sustaining the appellants' cross-complaint to the extent of the indebtedness sued on, and dismissing same as to any further damages. Both parties appeal.

Carmichael, Brooks, Powers & Rector, of Little Rock, and Jeff R. Rice, of Bentonville, for appellants. McGill & Lindsey, of Bentonville, for appellee.

WOOD, J. (after stating the facts as above).

[1] The findings of the chancellor on the issue of fact as to fraudulent representations are not clearly against the preponderance of the evidence. There is a decided conflict in the evidence as to whether or not Porter, who showed appellant E. J. Mitchell the place in Benton county, and who made representations concerning it as testified to by ap pellant E. J. Mitchell, was the agent of the appellee for that purpose. The appellee tesBut the testimony of Mitchell and his wife tifies positively that he was not his agent. The suit by Barry against Mitchell was in- and the circumstances as revealed by the tesstituted May 23, 1913, and judgment was ren- timony of the appellee, as well as the appeldered against Mitchell July 12, 1913, for $3,- lants, show clearly that Porter was appellee's 247.50. The land was ordered sold to satisfy agent and representing the appellee while the decree, and the sale was made on the showing appellant Mitchell the farm in Ben22d day of August, 1913. The land was pur-ton county, and the representations he made chased by Velma H. Barry for $3,301. Deed concerning the land were therefore binding was made by the commissioner reciting these upon the appellee. facts, and the deed was approved August 25, It was shown that Porter visited the home 1913. The present suit was instituted Au- of Mitchell in Little Rock and talked to gust 21, 1913, and the answer and counter-Mitchell's wife about the place in Benton claim was filed August 28, 1913.

Upon substantially the above facts the court found as follows: The plaintiff (appellee) and Velma Barry jointly sold the real estate described in the complaint to the defendant (appellant) Maud O. Mitchell at and for a trading consideration of $6,550; that the notes sued on were a part of this consideration; that the plaintiff (appellee) falsely represented to the defendants (appellants) that there were 53 acres of fruit trees on the farm conveyed to them, which were in

county. He had a photograph of the house and front yard which he exhibited to appellant E. J. Mitchell during this trip. Mitchell said Porter "made nearly the whole deal himself." It was cold, bad weather, snow on the ground, and they would sink up to their knees in the mud. They stopped in the lane, and did not go further to look over the place. Porter kept hold of Mitchell's arm most of the time, never let him get three feet away, and Mitchell never talked to the tenant that was on the place in regard to it.

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