Kirkham v. Malone

Jim Johnson, Associate Justice. Appellees, J. M. Malone and Gertrude Malone, his wife, instituted this action in the Chancery Court against appellants, William P. Kirkham and Ruby Kirkham, his wife, to set aside a deed because of failure of consideration. At the time of the conveyance, out of which this suit arises, appellant, William P. Kirkham, was married to appellees’ daughter, Carrie Belle Kirkham, who is now dead. In 1955, appellant, William P. Kirkham, and his then wife, Carrie Belle Kirkham, who will be hereinafter referred to as the Kirkhams, were living in Hot Springs, Arkansas, where Mr. Kirkham worked as a clerk in one of the gambling houses or “bookie joints”, and the appellees lived in Texas. The appellees had in their custody and took care of Carrie Belle’s daughter by a former marriage. On December 30, 1955, earnest money in the sum of $500 was paid to the real estate agent, Mr. Franks, on the property here in question. This $500 was paid with $300 in cash furnished by Carrie Belle Kirk-ham and a $200 check drawn on appellees’ account in a Greenville, Texas, bank. On January 2, 1956, the transaction was closed out and a deed received wherein the balance of the consideration in the amount of $2,500 was paid in twenty-five one hundred dollar bills. The Kirk-hams and appellees were all present at the time of this transaction. On March 11, 1956, a baby was born to the Kirkhams and not long thereafter it was learned that Carrie Belle Kirkham had a cancer. On August 20,1957, the appellees executed a deed to the Kirkhams to the property wherein the consideration as recited is Ten Dollars and other good and valuable consideration. In December of 1957 Carrie Belle Kirkham died. This suit to set aside the deed made in August 1957 was filed on April 30, 1959, after appellant, "William P. Kirkham, had married appellant, Ruby Kirkham, and alleges that the true consideration for the August 1957 deed was the promise of the Kirkhams that they would modernize the house, all of which the said William P. Kirkham has failed to do. The appellants filed a general denial and from a decree entered after the hearing of testimony setting aside the deed, the appellants bring this appeal based upon the theory that appellees failed to establish the alleged failure of consideration by the necessary clear, satisfactory, cogent and convincing evidence. At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. See: Carnall v. Wilson, 14 Ark. 482; Rector v. Collins, 46 Ark. 167; McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837; McCracken v. McBee, 96 Ark. 251, 131 S. W. 2d 450; Adkins v. Hoskins, 176 Ark. 565, 3 S. W. 2d 322; Swim v. Brewster, 177 Ark. 1171, 9 S. W. 2d 560; Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Johnson v. McAdoo, 222 Ark. 914, 263 S. W. 2d 701. A careful review of the record fails to reveal any evidence that the deed in question was given in consideration of a promise by Kirk-ham to repair the house except the testimony of the plaintiffs, the Malones. Of course, they are interested parties and the courts are not bound to accept their testimony as true. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337; McDaniel v. Johnson, 225 Ark. 6, 278 S. W. 2d 657. Some of the Malones’ relatives did testify that they had heard Kirkham say that he intended to repair the house, and Kirkham himself says he had such intentions, but the relatives of Malone did not say that Kirkham’s statement about intending to repair the house amounted to a promise or that such statement was given in consideration of a deed. As we view this entire matter on trial de novo, we are convinced that not only does the evidence produced by the Malones fail to make out a case by clear and convincing testimony, but it would be hard for us to say that they proved their case to any degree of satisfaction. Malone did not merely testify that he owned the property and conveyed it to the Kirkhams in consideration of an alleged promise to repair the premises, but at the very outset of his testimony Malone went into great detail as to how he acquired his alleged ownership of the property. He introduced the deed he received from Charles Dittman showing a consideration of $3,000. He went into all the details of how he had made a down payment of $300 in cash and the giving of a check for $200; that his daughter, Carrie Belle, let him have the $300 in cash to make the down payment and, further, while still testifying on direct examination, he tried to show where he got the balance of $2,500 used in making the purchase. The $2,500 was in one hundred dollar bills. He never explained where he got the one hundred dollar bills. He said he got the money from various sources — from the Government and from the sale of two farms, but he did not say such money was paid to him in one hundred dollar bills. He was asked on direct examination: “Q. The money that you paid for that farm, except for the $300.00, was your money, is that correct? ‘ ‘ A. That’s right. ’ ’ He then stated that Carrie Belle gave him the $300. Malone was further asked on direct examination: “Q. Mr. Malone, what was the consideration for that deed? “A. Well, Bill Kirkham and his wife, Carrie Bell, wanted me to have-” The sentence was not completed. He further stated that Kirkham’s alleged promise to improve the property was made after the property was deeded to Kirkham and his wife, hut later changed his testimony to say that the deed was made after the promise to repair. Furthermore, he testified that the repairs were to he done immediately after the deed was executed in August 1957. The suit was filed almost two years later after appellant had remarried and in the meantime it does not appear that the Malones made any demand on Kirkham to repair the house. Malone’s testimony on cross-examination, in explaining where he got the $2,500, is as follows: ‘ ‘ Q. Where did you get the twenty-five one-hundred dollar bills? “A. Well, I sold the farm for part of it. “Q. When did you sell the farm? “A. Well, it’s been several years ago. “Q. What did you get for the farm? “A. Oh, I think I got about four or five thousand dollars for it. “Q. In what year did you sell it? “A. Well, I don’t remember. “Q. You ought to be able to remember that, Mr. Malone. “A. Well, I don’t though. "Q. Was it ten years ago? “A. No, I just don’t remember that well. "Q. Well, you remember the amount of money, but you don’t remember the year you sold the farm? "A. Well, I can remember the money. “Q. Who did you sell it to then? "A. I can’t even think of him. ‘ ‘ Q. You can think of the money, but you can’t think who you sold to? Are you sure you had a farm? What was the description of it, where was it located, in what County? "A. About a mile or a mile and a half out of Whit-more. "Q. What county is that? "A. Well, I just can’t think of the name of the county. "Q. You can’t think of the name of the County, and you can’t think of the name of the person you sold it to, and you don’t know the year you sold it. Now, who did you buy it from, then? "A. I bought it from a man by the name of, he’s a land dealer there, I don’t believe I can recall his name. "Q. You don’t know who you bought it from? “A. Yes, I know who I bought it from, I can’t call his name, I forgot his name. "Q. When did you buy it? “A. Well, I thought I just told you I didn’t remember the exact time when I bought it. "Q. And you saved the money all that time, and carried it around in your pocket? "A. I didn’t say I carried it a hundred years or so, I said I had that money in my pocket, and I did, and every darn nickel of it was mine.” On the other hand, Mrs. Malone testified that they sold the land near Whitmore in 1953, and that she had been carrying the money around with her in cash since that time. Mr. Malone had testified that he was the one who carried the money in his pocket. Mrs. Malone testified that she had no confidence in banks and that is the reason she didn’t have the money in the bank, but on the other hand she did give a check for $200 as a down payment on the place and the other $300 paid at that time she got from Kirkham’s wife, although she testified that at the time she had $3,000 in her purse in cash. Kirkham testified that he is a professional gambler ; that he carries his money in his pocket, and when questioned on cross-examination with reference to this point he pulled out his roll and offered to let counsel for the Malones count it. He testified he let his wife have 25 one hundred dollar bills to let the Malones use in purchasing the property; that he and his wife were there at the time the property was purchased; that the deed was made to the Malones, but later at the insistence of his wife the Malones deeded the property to the Kirk-hams. He testified that he wanted to help the old people all he could; that he had no intention of taking the property away from them during their lifetime, and that in the beginning he did intend to have some repairs done on the house, but that his wife became sick with a cancer and that she was in a hospital for many months at great expense and died from the disease. Regardless of Kirkham’s occupation, we cannot say that his testimony does not have the ring of truth; on the other hand, we are unable to say that the testimony of the Malones is so unreasonable as to be unworthy of belief. Consequently, herein lies the reason we must find that the Chancellor erred in setting aside the deed. The burden was on the appellees, as plaintiffs, to establish that the deed was given in consideration of appellants having the house repaired by clear, cogent and convincing evidence. See: Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. This, they failed to do. In onr body of law there have grown np a number of rules and principles governing the law of real estate which have become known as “Rules of Property.” While it may be argued that many of such rules are based upon technicalities, it is nevertheless true that these rules, and the technicalities upon which they are based, have come into existence and have been continued because of the ever present need for stability and predictability in this field of the law. Were this not the case then chaos soon would be the result and property values would diminish in direct relationship to the degree of instability existing in the law of this or any other state as it might be applied to real property. Consequently, economic and moral necessity have dictated the establishment of such rules and the technical basis of many of them. Thus it is that the maintaining of the integrity of such rules devolves upon this tribunal. The general welfare requires a continuation of the observance of such rules and may in special cases, as in the case at bar, be found to require a decision in accordance with these principles even though the Court may entertain great sympathy for individuals in a particular situation. Since appellants in their prayer for relief ask that appellees be given a life estate in the property here involved, the case will be remanded for that purpose. Reversed and remanded. Holt, McFaddin, and Ward, JJ., dissent.