Davenport v. Hudspeth

Wood, J. (after stating the facts.) The questions in the case, as stated by the learned, counsel for appellants, are: “First: Did J. F. Hudspeth give the appellant, Sallie Davenport, the land .in controversy ? Second, did he place her in possession of said land under a valid gift? Third, if she went into possession of said land under a valid gift, did she hold the same continuously and under claim of ownership under said gift for a period of seven years?” It would doubtless be interesting to the parties litigant for the court to discuss in detail the evidence bearing upon these questions. But the record is voluminous, and the determination of these issues depends mainly upon questions of fact upon which the evidence in the record is conflicting. It will serve no useful purpose as a precedent to discuss pure questions of fact as they are presented in this case, and therefore we refrain from doing so. This is one of those unfortunate controversies between brother and sister which the courts are sometimes called upon to settle. Witnesses are adduced on each side whose testimony tends to support the respective contentions, but, the chancellor having found in favor of appellee, we think it is a case in which bis' finding should be very persuasive. It may be said in this case as was said by us in Meigs v. Morris, 63 Ark. 100: “To justify a decree in favor of appellants, the proof should be sufficient to have warranted a decree for specific performance against J. F. Hudspeth, had he lived and retained the title.” The proof should be sufficient to warrant the reformation of the deed of J. F. Hudspeth to Sallie Davenport, so as to make it include the land in controversy. Appellee relies upon a deed from his ancestor which embraces the land in controversy. Appellants claim, that this occurred through a mistake of the draftsman who was instructed to draw a deed containing other lands, and by mistake included the tract in controversy 'as •well. In McGuigan v. Gaines, 71 Ark. 614, this court approved the following language by Bishop-on Contracts, § 708. The author says: “In no case will the court decree an alteration in the terms of a duly executed written contract, unless the proofs are full, clear and decisive. Mere preponderance of evidence is not enough. The mistake must appear beyond reasonable controversy.’’ Again the court said in Goerke v. Rodgers, 75 Ark. 72: “It is to avoid such honest misunderstanding, as well as to prevent advantage by unscrupulous parties, that the law requires -that the evidence to overcome the written memorial must be clear, unequivocal and decisive.’’ See also Tillar v. Wilson, 79 Ark. 256, and Foster v. Beidler, 79 Ark. 418. We are convinced from a careful consideration of the evidence in this record that the chancellor had in mind the above, principles, and correctly applied them by finding and decreeing in favor of appellee. Affirmed.