West v. West , 120 Ark. 500 ( 1915 )

Hart, J.,

('after stating the facts). (1) The testimony in the divorce suit between Mary C. West and John L. West was introduced in evidence in this case over the objection of the plaintiffs. It is evident that such action on the part of the court was erroneous. The plaintiffs were not parties to the divorce suit, and the evidence in that action could not be introduced in the present action as testimony against the plaintiffs. The plaintiffs not being parties to the 'divorce suit, were not concluded by anything done in that suit, and the evidence in that action could not be used against them in the present one.

(2) If, however, after eliminating the incompetent testimony there remained sufficient competent evidence to support the finding of the chancellor, the decree should be upheld. Otherwise, it must be reversed. That is to say, when the competent evidence is considered, is the finding of the chancellor against the clear preponderance of the evidence?

(3) This brings us to a consideration of the law governing cases of this character. The general rule is that if .a man or woman convey -away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust for or subject to the rights of the defrauded husband or wife. Perry on Trusts and Trustees (6 ed.), Vol. 1, § 213; Bishop on the Law of Married Women, Vol. 2, § 350; Smith v. Smith, Second Halstead Ch. (New Jersey), 515; Leach v. Duvall, 8 Bush. (Ky.), 201; Dearmond v. Dearmond, 10 Ind. 191; Collins v. Collins, 98 Md. 473, 103 Am. St. Rep. 408, and case note.

(4) In the application of the principles of law just announced to the facts of the present case, we think the chancellor erred in holding that the conveyance to the plaintiffs was in fraud of the marital rights of the defendant, Mary C. West. Fraud is never presumed but must be proved, .and the burden was on the defendant to show that the deed had been made in fraud of her marital rights. This she did not do.

(5) The plaintiffs were the Children of John L. West by a former marriage and were the proper objects of his bounty. At the time he made the conveyance West owned four hundred ¡acres of land ¡and some town lots in the town of Letona. He retained eighty acres adjoining the town and the town lots. The property not conveyed by him was the most valuable part of his estate. Neither is there anything in the record from which it might be inferred that he contemplated marriage except the mere fact that he did marry on the 12th of August after he had' conveyed his property to his children on the 8th of May. Mary C. West testified that they were engaged about ¡six weeks before their marriage, but she does not say when they first contemplated marriage.

On the other hand, J. A. West testified that his father lived with his children at the time he made the conveyance on the 8th day of May, and that at that time there was nothing whatever ¡to indicate that he intended to marry the defendant or any one else. John L. West himself testified that he conveyed the land to Ms children because he was getting old ¡and wanted them to have the land. .So it seems that Ms marriage was, so far as the record ¡discloses, the result of a sudden impulse on the part of the ¡old man after he had made the deed to Ms children. In any event, there is nothing in the record tending to show that he contemplated marriage to ¡the defendant or any one else at the time he executed the deed to Ms children. He had a'right to deed his property to Ms children, and the chancellor erred in holding that the conveyance was made in fraud of the marital rights of the defendant.

The decree will be reversed ¡and the cause remanded with directions to the chancellor to enter a decree in accordance with the prayer of the complaint.