Queen v. Queen

Hart, J., (after stating the facts). The deed of John H. Queen to .his son, Albert Queen, to the land in controversy, executed on the 17th day of January, 1895, was a warranty deed in common form and conveyed a fee simple title to the lands to Albert Queen. (1) It is conceded by counsel for appellant that the deed being absolute in form an express trust can not be engrafted upon it by oral testimony, and that is the effect of our decisions upon the question. It is well settled by the decisions of this court that oral proof can not be heard to engraft an express trust upon a deed absolute in form. McDonald v. Hooker, 57 Ark. 632; Veasey v. Veasey, 110 Ark. 389, and cases cited. It is contended, however, by counsel for appellants that the proof brings this case within that class of cases where there is an absolute conveyance on the one hand and in return a written declaration of trust upon which the property is held. That is to say, that John H. Queen made an absolute conveyance to Albert Queen, the proposed trustee, and that there was also a written contract of the purposes or trust upon which Albert Queen was to hold the property.' To sustain this contention they rely chiefly upon the testimony .of H. W. Byburn. We have copied his testimony in relation to the written contract which wias executed at his house between himself and John H. Queen and Albert Queen and do not deem it necessary to repeat it here. It is true he testified that the contract which was executed on that occasion was lost; and if it foe conceded that his testimony was sufficient to admit secondary .evidence of the contents of the lost instrument, we think the testimony is too vague and indefinite and that the substance'of the contract is not satisfactorily proved. (2) In a case note to 2 American and English Annotated Cases, at page 41, it is said that to sustain an action on a note, bond, deed or other instrument which has been lost or destroyed, the contents of the instrument must foe shown by clear and convincing evidence. A number of cases from many states are cited to support the rule. Among the cases cited is that of Hooper v. Chism, 13 Ark. 496. In that .case the court held: “Where such bill of sale is alleged to be lost, and its contents as alleged are denied by the answer of defendant, they should foe substantially proven, where no copy is produced, by a witness who has seen or read the instrument, or is otherwise enabled to speak with some degree of accuracy as to its contents, and identify it as the one executed by the party to be charged.” It will be noted that Ryburn gave his deposition in May, 1914. He said that the contract in question was executed about twenty years before. The deed from John H. Queen to his son, Albert, was executed in January, 1895. If the contract in question was executed twenty years before Ryburn’s testimony was given it was executed in 1894, prior to the execution of the deed from John H. Queen to his son, Albert. John H. Queen died in December, 1895. Bill Dodd, who also witnessed the contract, said that he did not remember anything about its contents because it was not read over to him, and that the .contract in question was executed about a year .and a half before old man Queen died. This would also place the execution of the contract at a date earlier than the date of the execution of the deed. Ryburn also testified that prior to the execution of the deed to Albert Queen he had made a contract with John H. Queen for the purchase of the land and had let the land go back, because he was unable to pay for it. It may be the contract he is testifying to now is the one executed when he purchased the land. In any event, the testimony shows that it was executed before the deed from John H. Queen to Ms son, Albert Queen, was executed. There is notMng in the record tending to show that it was executed contemporaneously with the deed or with reference to it. It may be that prior to the execution of the deed John H. Queen had entered into some kind of written contract with Ms son, Albert, and that later the contract was changed by the execution of the deed in question. It is true the consideration recited in the deed is $1,000 and it is shown that Albert Queen had no means with which to pay for the land. The record shows, however, that John H. Queen at the time he executed the deed was an old man and wias not able to work. It may be that he intended to provide a home for his wife and himself during their old age and the testimony shows that he lived with his son, Albert, until ¡he died and that Ms widow lived with him for several years thereafter until she died. The deed was acknowledged before L. E. Hoover, a justice of the peace. The contract about wMch Ryburn testified was acknowledged, he says, before Squire You-man, a justice of the peace. Thus it will be seen, there is nothing to .show that the deed and the contract in question were executed at the same time, or that Albert Queen, the grantee in the deed, subsequently executed a written declaration of trust covering the land embraced in the deed. (3) Moreover, we are of the opinion that the substantial contents of the instrument were not proved by such clear and satisfactory evidence as is required by the rule above announced, and that the court did not err in finding that there was no written declaration of trust as contended for by counsel for the appellants. Where parties reduce their contracts to writing, the obligation and duties of which are described and limited by the instrument itself, the security which is expected from the written instrument would he much impaired if the contract could he established upon such uncertain and vague impressions as have been testified to by the witnesses in this 'ease. (4) Again, it is contended by counsel for appellants that Albert Queen was a trustee ex maleficio within the rule announced in Bragg v. Hartney, 92 Ark. 55, and like cases. We 'do not think it necessary to make any extended comment on this contention. It is sufficient to say that we have read the record carefully and that there is a total absence of any testimony tending to show that Albert Queen practiced any actual fraud whatever upon Ms father to procure the deed. Neither do we think the record establishes, that he procured the deed through undue influence, or by taking advantage of Ms father’s old age or necessities. As far as the record shows, the execution of the deed was a free and voluntary act on the part of John H. Queen and Ms wife, who were at the time of sound mental condition. The decree will be affirmed.