Dawkins v. Petteys , 121 Ark. 498 ( 1915 )

Wood, J.,

(after stating the facts). I. (1) If Dawkins executed the deedto the appellee, it was good between the parties and passed the title to appellee, and Dawkins ’ heirs cannot set it aside. Floyd v. Ricks, 14 Ark. 286; Stirman v. Cravens, 29 Ark. 548; Jackson v. Allen, 30 Ark. 110; Griesler v. McKennon, 44 Ark. 520; McKneely v. Terry, 61 Ark. 527; 1 R. C. L., p. 257. The only issue, therefore, between the heirs of Dawkins and the appellee was whether or not Dawkins had executed the deed. Both parties in their pleadings ask for affirmative relief. The appellants ask that the deed be cancelled as a cloud on their title, and the appellee asks that title in him be “established and confirmed against all claims •and demands” of the appellants whatsoever.

(2) In. considering the question, as to whether Dawkins had executed the deed, and whether the appellants were entitled 'to the affirmative relief of cancellation, the court in its written opinion said that the burden of proof on this issue was on the appellants. And in determining whether or not appellee was entitled to the affirmative relief as against Mrs. Dawkins, the court in its written opinion said: ‘ ‘ Since Mrs. Dawkins denies the execution of the deed, I think the burden is on Petteys to prove' that she did execute it.” Both parties complain that the 'Court erred in its ruling as to the burden of proof. It will appear from our discussion of the issues further on that the court did not misapprehend'the rule as to the burden of proof. But whether the court erred in this respect it is unnecessary for us to determine on this appeal, for chancery causes ¡are heard here de novo. Benton v. Southern Engine & Boiler Works, 101 Ark. 493. The ultimate fact to be determined on appeal in chancery cases is not whether the chancellor pursued correct and logical mental processes in reaching his conclusion, but whether the conclusion itself is correct, Marriage v. Daly, 121 Ark. 23; Dicken v. Simpson, et al., 117 Ark. 304, 174 S. W. 1154.

(3) , The question, therefore, for us .is whether or not the chancellor’s finding ,to the effect that Dawkins executed the deed in controversy is correct. On this issue the appellee Petteys testified that Dawkins signed his name to the deed by his mark; that he made his mark to his signature on the place where the same appears on the deed; that Mrs. Dawkins saw Dawkins make his mark to the ¡signature in ¡signing the deed, and that he (appellee) wrote the signature “T. P. Dawkins” and his own name as a witness. He also testified that Mrs. Dawkins signed her name to the deed. Mrs. Dawkins testified that she did not sign the deed. Necessarily it follows that if Mrs. Dawkins’ testimony be true, Petteys, the appellee, had forged her signature ¡and the signature of Dawkins to 'the deed. In determining whether or not the signature of Mrs. Dawkins was a forgery the court had before it the genuine signature of Mrs. Dawkins to a mortgage which she had executed, and also her signature to a deposition, which the court compared with her purported signature to the deed in controversy. These have been brought before this court and we have examined and compared the same. The court was correct in its conclusion that there was no such dissimilarity in these .signatures as to justify a finding to the effect that they were not written by the same hand. While the court made no affirmative finding on this issue, from our examination of the documents we conclude that there is such a general similarity in the letters constituting the various signatures as to warrant the inference that they were written by the same person.

(4-5) It was set up in the complaint that Dawkins acquired the land from Hannibal Jenkins, and it was shown that at the time of the institution of this suit Petteys was in possession of the original deed .from Hannibal Jenkins, .as well as in possession of a mortgage which Dawkins and his wife had .given on the land, but the mortgage had been satisfied previous to the execution of 'the deed in controversy. Appellee testified that Dawbins gave him these documents at the time of the execution and delivery of the deed in controversy. The possession of these documents was a circumstance in connection with other facts in evidence tending to prove that Petteys had acquired possession of them as the purchaser of the land in controversy from Dawkins; for it is not to be presumed that Dawkins would have delivered these muniments of title to appellee if appellee had not purchased the land, nor that D'awMns would otherwise have recorded the deed. See Morton v. Morton, 82 Ark. 492; Carter v. McNeal, 86 Ark. 150; Graham v. Suddeth, 97 Ark. 283. The presumption is that appellee’s possession of the deed in controversy, and the other title papers, was legal. All these presumptions could be considered by the court in determining the issue as to whether the deed was a forgery and as to whether appellants were entitled to the .affirmative relief of cancellation. 13 Cyc. 725; Pennington v. Yell, 11 Ark. 212; Lawson on Presumptive Evidence, Chap. 5, Rule 19, p. 112.

(6) Another circumstance tending to corroborate the appellee’s testimony to the effect -that he had purchased the land from Dawkins was that from the time bf the execution of the ¡deed and the recording thereof in the year 1910, he had paid the taxes for each year thereafter for a period of three years before Dawkins died, .and yet, notwithstanding the recording of the deed and the payment of these taxes, Dawkins during his lifetime did not challenge ¡appellee’s title.

It was shown that Dawkins paid Ms taxes, after Petteys paid his. He must have known, therefore, that Petteys was paying taxes on this land. These, are circumstances tending to show that Petteys was setting up title to the land, wMch Diawkins. must have known, yet he did not question Pettey’s claim of title.

The chancellor found that “as to T. P. Dawkins this deed is good.” When ¡all of the alb ove facts and circumstances are considered in connection with the positive testimony of the appellee, Petteys, it cannot be said that the finding of the .chancellor on tMs issue of fact is clearly against -the preponderance of the testimony.

II. (7) Counsel for .appellants contend that inasmuch as appellee was the grantee in the deed, the signature of Dawkins by mark has not been properly established. Our Constitution and statutes provide that no witness shall be excluded because he is a party to the sMt or interested in the issue to be tried, etc. See Sec. 2, Sched. Const.; Kirby’s Digest, Sec. 3093.

The statute (Kirby’s Digest, Sec. 7799) provides that “signature or subscription includes, mark, when the person can not write, his name being written near it and wit-. nessed by á person who writes his own name as a witness,” but tMs is not the exclusive method of establishing a .signature by mark. Miller, ex parte, 49 Ark. 18; Davis v. Semmes, 51 Ark. 48; Fakes v. Wilder, 70 Ark. 449; Ward v. Stark, 91 Ark. 268.

The testimony adduced by appellee is sufficient to establish 'the fact that Dawkins ¡signed the deed by making his mark. Johnson v. Davis, 95 Ala. 293; McGowan v. Collins, 154 Ala. 299; Vanover v. Murphy’s Administrator, 15 S. W. (Ky.) 61; Devereux v. McMahon, 108 N. C. 134.

Discussion of other questions relating to the form of the signature is unnecessary.

III. (8) The court did not err in refusing the relief prayed in .appellee’s cross-complaint against the heirs of Dawkins. Appellee admits, and Ms testimony shows, that the title to the dower of Mrs. Dawkins failed because he took the acknowledgment. See Meyer v. Gossett, 38 Ark. 377-380; Green v. Abraham, 43 Ark. 420; Muense v. Harper, 70 Ark. 309.

It thus 'appears that it was ¡appellee’s own fault that he did not acquire title to the dower; and he is es-topped from asserting that the heirs of Dawkins should make good his claim for dower.

The question as to whether Dawkins executed the deed was purely one of fact, and as before ¡stated it ean not be ¡said that the finding of the ¡chancellor is clearly against the preponderance of the evidence. See cases collated in Vol. IV, Crawford’s Digest, p. 75, under “e. Findings of Chancellor. ”

The judgment is therefore correct and must be ¡affirmed.