Lewis v. Tisdale , 75 Ark. 321 ( 1905 )

Hill, C. J.

Mrs. Mary A. Brady was the owner of a tract of land, which is the subject-matter of this litigation, and on the 4th day of September, 1902, she and her husband executed and acknowledged, in the town of Pocahontas, a deed thereto to Mrs. Emily Lewis. Mrs. Lewis was a daughter of Mrs. Brady by a former marriage. The deed reserved a life estate to Mrs. Brady, and was to become operative at her death; it will be set out by the Reporter in the statement of facts.

The description is defective, but it is agreed that it was intended to cover the farm known as the “River Farm,” and no point is made against it on account of the misdescription. The-deed was valid. Bunch v. Nicks, 50 Ark. 367; Cribbs v. Walker, 74 Ark. 104.

The only question in the case is a question of fact whether or not the deed was delivered. This suit was brought by Mrs. Brady’s heirs-at-law to set it aside. Mr. Brady testified that his wife gave it to him to do as he pleased with it, and that he placed it in a trunk, and it was not delivered, but wrongfully taken by Mrs. Lewis after Mrs. Brady’s death, and then placed on record. He is corroborated in this version of the transaction by several witnesses testifying to statements and conduct of Mrs. Lewis consistent with this theory and inconsistent .with her version of the. transaction. Mrs. Lewis and her daughter, Lodena, testify that a few days before the death of Mrs. Brady, while Mr. Brady had gone to Imboden for a physician and medicine, Mrs. Brady had the deed produced, and gave it to her daughter to read, and after it was read delivered it to her granddaughter to keep for her (the granddaughter’s) mother. That Lodena put the deed in a trunk containing some of her own clothes and some of her grandmother’s. That after Mrs. Brady’s death, in going through her things Mr. Brady got this deed, and a conten-/ tion at once arose between Brady and Mrs. Lewis over it. That Brady put it in another trunk, and later Mrs. Lewis in his presence and that of other members of the family took it therefrom. These witnesses are corroborated by a disinterested witness, who testified to communications with Mrs. Brady showing it was her intention for Mrs. Lewis to have this property. The execution of the deed itself and its terms are also corroborative of this testimony, and the direct testimony of its delivery is not inconsistent with Brady’s testimony of what his wife told him, as she might have decided afterwards, and during his absence, as stated by the witness, to perfect the transfer.

On the whole case, the court is of the opinion that the preponderance of the testimony sustains the delivery of the deed. The decree is reversed, with directions to dismiss the complaint and grant- the prayer of the cross-complaint reforming the description in the deed- and quieting Mrs. Lewis’ title.