Wren v. Green

Smith, J. W. T. Hindman departed this life Jan-, uary 18, 1941, and was survived by his widow and his mother, who, as surviving heirs-at-law-, brought this suit to establish and restore a lost deed to one-half the oil and gas under the land in controversy, which deed they alleged had been executed by T. P. Bomack and wife to Hindman in the year 1922. The relief prayed was denied, and from that decree is this appeal. Bomack owned the east half, southwest quarter, section 11, township 15 south, range 20 west, Columbia county, Arkansas, and after his death, which occurred May 22, 1934, his widow and heirs-at-law ' executed a warranty deed, dated December 30, 1935, conveying the southeast quarter, southwest quarter, of this section to' Fred S. Green. It was alleged that Bomack and his wife had previously conveyed one-half the mineral rights in the north half of this 80-acre tract of land, described as the northeast quarter, southwest quarter, to one Lide. The witnesses testifying in the case referred to this land as the north half and the south half. The north half being the northeast quarter, southwest quarter, and the south half being the southeast quarter, southwest quarter. This litigation involves only the tract last above described, and is predicated on the allegation that Bomack and wife had conveyed .the mineral rights in the south half to Hindman, before the widow and heirs of Bomack conveyed the land to Green. The answer filed by Green presented three questions of fact: (1) whether a deed to Hindman had ever been executed; (2) whether the deed, if executed, had been delivered; and (3) whether, if executed and delivered, Green bought without knowledge of its existence, it being alleged that the said deed to Hindman had been lost without having been recorded. In an opinion denying the relief prayed, the court expressed doubt as to the sufficiency of the proof to meet the requirements of the law upon the first and third of these issues, but made the specific finding that the testimony did not show a delivery of the deed. The plaintiffs’ case rested largely upon the testimony of Bomack’s widow, now Mrs. Underwood, which was to the effect that she and Bomack, her then husband, had executed a mineral deed to Hindman for an undivided half of the south half for the consideration of $1,000, which was paid them, and she testified further that when she and her children, the heirs-at-law of her husband, Bomack, executed a warranty deed to Green, she advised Green that an undivided half of the minerals on the south half of the land had previously been sold to Hindman. There was some corroboration of this testimony, but more in contradiction. Green’s testimony is as definite and positive as is that of Mrs. Underwood to the effect that he was unaware of the prior conveyance to. Hindman. Green’s sister testified that the negotiations for the purchase of the land occurred at Green’s home, and that she was present and heard the conversation which then took place; that Green asked Mrs. Underwood about the sale of the minerals, and that Mrs. Underwood stated they had sold the minerals on the north half, but had not sold those on the south half. This testimony was corroborated by D. M. Green, the father of the witness, and Fred Green, whose testimony was to the definite effect that Mrs. Underwood told Fr.ed Green there had been no sale of the minerals on the south half of the land. The testimony shows that before purchasing the land, Green consulted an abstracter of land titles, who told him that an examination of the record disclosed that the title to the south half was clear. Green pleaded both laches and limitations, and while the complaint was not dismissed on either of those grounds, the testimony tending to support the plea of laches cannot be disregarded in weighing the evidence. It Avill be remembered that the deed sought to.be established if executed at all, was executed in 1922, and this suit was not brought until 1942, so that there was an intervening period of 20 .years, and during that time both Romack and Hindman died. The testimony of Mrs. Underwood Avas to the effect that the sale to Hindman was consummated through an escrow agreement, the deed having been attached to a draft, both of which were deposited in a bank, which became insolvent in 1929 and whose records cannot now be found, with the understanding that the deed should be delivered when the draft Avas paid, and that it was paid. In the opinion dismissing the suit as being without equity, the trial judge expressed doubt as to the sufficiency of the testimony to establish the existence of the deed, but he expressed the definite opinion, and based his decision upon the finding, that the deed had not been delivered to Hindman even though its existence had been shown. Certain it is that Hindman never placed the deed of record, and Mrs. Underwood did not testify that the deed had ever been delivered to Hindman by the escrow agent, nor did any other witness so testify. Mrs. Underwood was asked if the deed had been delivered, and answered “Yes,” but she did not state when, to whom, or the circumstances under which the delivery was made, and although the payment of the draft to the escrow agent would have constituted a constructive delivery of the deed, yet the Court was warranted in finding there had been no such delivery. It is very highly improbable that Hindman would have paid a thousand dollar draft for a mineral deed and not have taken possession of the deed, and if he did so his indifference and negligence is responsible for this litigation under which his heirs attempt to assert title. Now, it is permissible to establish and restore a lost deed, but the cases are all to the effect that this relief will be granted only when the testimony as to the execution and delivery of the deed sought to be restored is clear, cogent and convincing, and we are unwilling to say, in view of the long lapse of time and other circumstances of the case, that the finding of the court is not sustained by the testimony. Moreover, if the existence and delivery of the deed was shown by testimony sufficient to meet the requirements of the law to obtain the relief prayed, the question remains whether Green was an innocent purchaser, and the preponderance of the testimony, in our opinion, shows that he was. The decree must, therefore, be affirmed, and it is so ordered. Knox, J., non-participating.