Hoover v. Gray , 91 Ark. 246 ( 1909 )

Wood, J.

(after stating the facts). The decree of the chancellor is certainly not clearly against the preponderance of the evidence.- Bank of Pine Bluff v. Levi, 90 Ark. 166; Cranford v. Cranford, 85 Ark. 83, and cases cited. On the contrary, the preponderance is with the chancellor’s finding. The law is well established that a deed will not be set aside unless the evidence of mistake is clear, unequivocal and convincing. Marquette Timber Co. v. Chas. T. Abeles Co., 81 Ark. 420; Davenport v. Hudspeth, 81 Ark. 166. There is no such evidence in this record. It was purely a question of fact under the evidence as to whether there was any agreement between the Walkers in the first instance for a partition of the lands between them different from that indicated by the deeds. The deeds were intended, as the Walkers, R. C. and Jas. F. testify, to convey the lands according to a verbal understanding by which the lands had been laid off into lots, and these lots defined by metes and bounds. But there was no written agreement indicating that the lands were to be partitioned according to certain metes and bounds. The deeds themselves are very strong evidence, if not conclusive, that the lands were to be partitioned, not by metes and bounds, but by the legal subdivision shown by the government survey. When the draughtsman was asked to write the deeds, the parties to the deed did not furnish him with the description of the lands according to certain metes and bounds which they say had been designated. On the contrary, they furnished him with the description according to the legal subdivisions. Fie drew the deeds according to the legal subdivisions on government calls furnished by the parties. They gave him no other description. Since section ii was a “full” or large section, it would be very unreasonable to hold that the parties did not know that a partition by metes and bounds without regard to the government calls would not correspond with those calls, unless by the merest accident. 'The fact, therefore, that they conveyed by the legal subdivisions tends to show that there was no other partition contemplated or agreed upon. The chancellor was clearly warranted in finding that no other partition was made among the Walkers than that indicated by the deeds, and that therefore appellant by his deed from R. C. Walker acquired no title to the land in controversy, and that his possession thereof was unlawful.

No error being found, the decree is affirmed.