Jacks v. Wooten

Hart, J. (after stating the facts). We are of the opinion that the decision of the chancellor is correct. The plaintiffs based their rights to recover oh the alleged fact that Lula 'B. Jacks executed to Cora F. Wooten a deed to her three-eighths interest in the lot in controversy and the deed had been lost before it had been filed for record. The chancellor granted the relief prayed for in the complaint of the plaintiff, and the title was confirmed in S. A. Wooten, who had in the meantime procured a deed to said lot from Cora F. Wooten. The defendant was enjoined from interfering with the title of the plaintiffs, and her cross-complaint in which she asked for an accounting for rents and profits was dismissed for want of equity. The rights of the plaintiff are based solely on the deed alleged to have been lost, and they are suing the person who, is alleged to have executed the deed. Under these circumstances it devolved upon plaintiffs to prove the facts alleged upon which they, relied for title by clear and satisfactory evidence. Kenady v. Gilkey, 81 Ark. 147. In determining whether a deed claimed to have been lost was executed the court might consider how long the parties asserting the claim had been in possession of the land, its value, whether the land had been held adversely to such claim, and all the surrounding circumstances. Carpenter v. Jones, 76 Ark. 163. Tested by this rule, we think the plaintiffs have established the fact of the execution and loss of the deed by clear and convincing evidence. It is true that the testimony of the parties themselves is in direct and irreconcilable conflict; but we think the testimony of the plaintiff, S. A. Wooten, is corroborated by the attending circumstances. The undisputed evidence shows that, after Lula B. Jacks sold her interest in the, firm to Cora F. Wooten, her husband, who had been managing her interest in the firm, took no further part in renting or collecting the rents on the house and lot in question. Wooten paid the building and loan dues and the taxes, which amounted to- more than the rent. The mortgage to the building and loan company was satisfied of record on the 2nd day of February, 1899. The mortgage to Homor was satisfied of record on December 1, 1892. ¡Since that time S. A. Wooten has continued to collect the rents and paid the taxes. He says that no claim was asserted by the defendant until she was requested to make a quitclaim deed in place of the lost deed. It is true that this is denied by the defendant, but it is certain that the defendant took no active steps to have an accounting of the rents and profits. According to her evidence, the defendant and her husband have lived in the city of Helena within five or six blocks of the house and lot in controversy during all this time, except for a period of two years. The rental value of the property increased from $35 to $60 and then $75 per month. Finally the rent went up to $150 per month. According to the testimony of the husband of the defendant, they knew that the value of the property had greatly increased, and they must have known that its rental value had also" greatly increased. Their silence in permitting the plaintiffs during all these years to collect the rents and manage the property as their own is a strong circumstance tending to show that the defendant had parted with her interest in the property. It is not as if she had been living at another place and kept in ignorance of its rental value. She knew what the property and the house on it had cost. She must have known that the mortgage indebtedness had been paid years ago. Her failure to assert any claim until she was asked to make a quitclaim deed to clear the title after Wooten had bargained to sell the lot can be explained only on the theory that she had parted with her title to the property. It was shown by the plaintiffs that a great deal of mail was opened by the janitor and destroyed during the period of time that the deed would have been sent to the courthouse to be recorded. This accounts for the loss of the deed, and it is not unreasonable that the plaintiffs failed to know that the deed had not been returned to them after they had mailed it to the clerk’s office to be recorded. It follows that the decree will be affirmed.