ARK.] ERWIN V. KERRIN. 183 ERWIN 'V. KERRIN! Opinion delivèred July :6,' 1925.: • • 1. LOST INSTRUMENTS—BURDEN OFPROOF. Otto,,who. . under an . instrument alleged to hive been lost" 11 .'as the lu'rden Of establishing the executidn, eOntents and lOSs . of kich instruMent by the clearest, most conclusive and satisfaCtory-proOf: ' 2:. ' • ; LOST.I , . ^ NSTRUMENTSSUFFIDIRNOT OF PROOF. Evidence 'he/a 'to , be • insufficient to establish the lo f sS of a deed. . • , Appeal. from Prairie . Chance . ry Court, Northern District; A. L. Hutc . hin„s„ Chancellor on exchange ;, reversed.
184 ERWIN V. KERRIN. [169 W. A. Leach, for appellant. J. N. Rachels, for appellee. WOOD, J. Jesse Martin died in the year 1872. At the time of his death he" owned a large body of land in Prairie County, Arkansas, includink therein a tract consisting of two hundred and forty acres. He left a widow Narcissa Martin, and four children, JosePh Martin, Lizzie Martin Langford, Artimissa Babb (nee Martin, now McDaniel), and Ab Martin, as his only heirs at law. Joseph Martin died in 1905 or '1906, leaving surviving his widow, now Annie Kerrin, and one daughter, Viola May Martin. Viola May Martin died April 9, 1915, leaving her surviving, Lizzie Langford, Ab Martin and Artimissa McDaniel as her sole and .only heirs at law. The two hundred and forty acres of land were allotted to Narcissa Martin, -the widow of Jesse Martin, as her o dower interest in his lands. The reversionary interest in these lands was sold at administrator's 'sale to pay the debts of Jesse Martin. Narcissa Martin,- the widow of Jesse Martin, died in 1906. •oon thereafter suit .was instituted . bY those who had purchased . at the administrator's sale to quiet the title. Lizzie Langford, Ab Martin, Viola May Martin and Artinaissa Babb (now McDaniel) intervened, claiming the land as the heirs of Jesse Martin, and Annie Martin (now Annie Kerrin, the appellee) intervened claiming dower as the widow of Joseph Martin. A decree was rendered in that action vesting title to the lands in Lizzie Langford, Viola May Martin, Ab Martin and Artimissa Babb (now McDaniel). Artimissa McDaniel and Ab Martin conveyed by quitclaim deed to W: A. Leach; Leach and wife conveyed by warranty deed to A. L. Erwin; Artimissa McDaniel also conveyed by quitclaim deed to A. L. Erwin; C. C. McDaniel, adniinistrator of the estate of Ah Martin, also executed an administrator's deed to the estate of Ab Martin; Lizzie Langford (nee Martin) executed a quit-claim deed to W. A. Leach on the 7th of July, 1917, and on the 21st day of July, 1917 Leach and wife conveyed
ARK.] ERWIN V. NERRIN. 185 this interest to A. L. Erwin. By these conveyances, Erwin became the owner of all the lands mentioned exCept the.dower interest of Annie Kerrin (nee Martin). On the 5th of May, 1922, the 'appellee instituted this action. She alleged in her complaint that• she was the widow of Joseph Martin, one of the heirs of Jesse Martin, .deceased; that Joseph Martin; . at the time of his death; was the owner of an undivided ' one-third interest in 'the lands and that he left surviving him his wiadw,' Annie' Martin (now Annie Kerrin), and one child, ViOla May Mkrtin; . that Viola May Martin died without issue; and that upon her death the appellee beCamb seized' and' possesed of the one-third interest as the . sOle and onlY-heir of Viola May-Martin. In November, 19 , 22,-the appel7. lee filed an amendment to her complaint :in which sl.ie alleged that Joseph Martin . had executed to the appel: lee a deed Conveying to her all of his interest in the lands mentioned, and alleging that by virtue, of such deed ..she was • an :owner. of an undivided one-fourth interest in the lands. She further:alleged that the deed.from Joseph Martin to her , had been.lost or destroyed and could not be produced; that Erwin. was in possession of her- interest in the lands, and:that the lands were estimated to be of the value . of $10,000; that Erwin had been in possession thereoflor more than ten years receiving rents and profits, and thot he-refused to deliver possession or to allow . -a sale of the:lands for nartition._She.prayed- that= the lands be partitioned. She was joined in her amended complaint by Homer L. Martin and Thomas W. Martin, minors, through Their next friend and mother, Siretha Martin Hairison, claiming that they were the sole heirs- of A.-Martin, and entitled as such to an undivided one-fourth interest in the' lands. They prayed that they recover 'of the appel:- lant their interest and fOr-all.prOper and general relief. The answer of Erwin 'denied , the materikl allekations -of the Complaint as' to- the alleged title , of the Plaintiffs
186 ERWIN V. KERRIN. [169 and set up that he was the owner of the lands 'under' the . chain of title above set forth. : The' court, at the hearing, entered a decree -dismissing the cOmplaint of Siretha Martin Harrison : as the next friend,of Homer and Thomas Martin, minors,. with-. out prejudice to their interests. , The court also entered a decree . adjudging that Annie Kerlin , is Abe owner .oxi an undivided one-fourth . ,interest in the :lands ,described in the, complaint and decreed as SW1/4 section 29. and, north. half of N:1)44 of •section . 32, :township -five . north,. range four west, containing 240 . acres, more .or less : The Court fUrther appointed a *master to state .an.acconnt,Of the , rentals and proceeds . from the land, and ordered that the land 'be, Sold . 'and the . proceedS Partitioned. between. X. ,L Erwin and Anme kerrin; * ail& retained Control of. the' c,Tise:unfilkurther Order of the court: There is no. aptleal froniilie decree of 'the 'court AiSinissingthe'Com.-: plaint -,r;r-ithout prejndice to' Romer . and -Thomas Martin; throUgh; their- mother and . next friend,`; Siretha -Martin Harrison, and 'that branch of 'the case passeS . : out: A L: E rvvin.rduly- i.osecutes' this appeal. : • • : While , th'e `pleadings and the testimony are: volumi-nons;- there are, 'really only- two-questions presented: by-this appeal.' First, has Mrs. Annie'-Kerrin,(hereafter, called appellee.) established her title to an undiVided One-fourth ,interest :in • the lands - in 'controversk throiigh deed alleged -to have been 'executed Land: 'delivered. to hei . iby her husband, Joseph Martin ;.. and,. second, 'was Erwin (hereafter called appellant) an- innocent ':Purchaser for value? • •• 1. -- The' appellee testified in substance that Joseph Martin was.ter first husband. He deeded to her un Undivided One-fourth interest to the: lands described in the complaint. Dr. Burney "Wrote the deed, and :her husband brought it home and gave: it to her. The last time ,she,, saw. the -deed was, when: she . gave it to J1 N. liachels;• het -attorney. , She didn't .know: where .the deed was until she went to hunt up soine deed of:her .father's
ARK.] ERWIN 1). KERRIN. 187 estate -, in. .Mississippi and found • this , , deed . his . book over at appellee's brother's house in . her •father's trunk. She : waS handed; a'book and stated that that was the book referred to.. After, she found the..de,ed her , brother, Lige Babb, and ;nephew, : Connie Babb, • saw' it: and heard.,it read.: :Appellee was claiming, such . rights , as-,'sW had, under 'that deed,; . She 'employed Mr., Leach, and,when she • told him, that she wps: only claiming a dower inter-; est she meant such rights as she acquired under :the .deed from- her husband. • , She -told : Mr. :Leach. such facts as she -knew; and he.had looked after . her :interest, for nearly ten...years.. , t Soon after . the , Supreme Court,deeided the, ease: conferring ;the of 44 Jesse ,Martin,.:heirs; Leach reported to the other heirs . . that witness had died-, Shim the,. death.,of bseph Martin, her ; husband,..neither Ala_ Martin nor 1\Irs.,,Mc p aniel had, : claimed any interest in that part of Jesse Martin's; estate :which +-belonged,.to hor husband,- J'Cle Maytin, and which., he, deeded_ to the • , • . • Mrs. Siretha-Martin'Harrison testified that , she, had seen :a deed; -from Joseph Martin Conveying his .interest in . the -JesSe -Martin. estate to bis 'wife; Atinie,liartin: Witness understood.that.she had .a deed tO Joe.Ma'Ytin7s part- of the estate. - -, ' • 7 • • ..•• • • - Mrs.. -MeDaniel testified' . that Jesse Maytin. Wa's her father.1-•She• had , two, brothers, • Ab • and Joer and one sister,.:Lizzie; Who, with Witness, were ,his In; 1905 suit was .hrolight- by•=Mr: Leacti- -to iecov . er , the interest of the heirs in their father's estate. Neither th'e Witness,' -nor . •Ab- Martin, • nor Lizzie Langfdid Claimed any interest in Joe- Martin's-- landi • Appellee was • .hls Wife,- and . she had a • child by him. ,TheY were both dead,' and Witness'thought a pPellee was entitled Ad :Joe !s: intereSt. in ;the land.. Appellee didn't -"receive' tanY pay-for 'such interest, 'and witneSs didn't think: Al w 14a7d received any: -. Witness had reeeived pay 'for -her :interest;.but'not for- Joe's part:* 'Witness asked Mr..• Leach. ly appellee' didn't get her part—Joe MartinIs.part—
188 ERWIN V. KERRIN. [169 and Leach replied that if there was anything coming to her he would pay it. That was at the time , the deed was executed and before, too. After the death Of Jesse Martin, his heirs turned the matter over to . Mr. Leach to get their intereät. While he had it in control •and abont the time Witness executed a deed to her interest and received $500 for same, 'witness heard that Leach said that appellee was dead, but witness knew that she was not dead. • Connie Babb testified that appellee- :waS witness.' aunt. She was present one day when appellee' was looking through her trunk, and came across.an old book like one shown witness. She foimd in that ' book a deed from Joe Martin to appellee deeding his interest in the lands across the river te her. Mr: Rachels was present; Witness heard appellee read the deed,' and 'after , she read it she handed it to -Mr. Rachels. Lige Babb testified that he was a brOther of the appellee, and remembered the time when she was down at his honse looking through a trunk for , some papers of her father'S estate. Witness was shown in a' little 'book, and stated that he had*seen the same many times. The apPellee found in that book on-the Occasion named so e papers that belonged to witness' father,- and 'also some that belonged fo witneSs' sister Among these -Papers was a deed made by Joe Martin to apPeliee. After the deed was found, it was handed to 'Mr: Rachels,• arid he took it away. That was the -first time witness had ever seen the deed. ' J. N: Rachels teStified that he was' employed at •fifst by other •persons than -the appellee to investigate the. title to the Martin lands, and found that 240 acres had gone through the courts. There were four Martin heirs, Joe Martin, Ab Martin, Lizzie Langford and :Artimissa McDaniel. Ab and Joe had deeded their interest -to their wives.•• The women brought suit through Mr:- Leach for recovery of the land. Witness came to Des Arc and made some investigations. He was looking through-
ARK.] ERWIN V. KERRIN. 189 appellee's father's papers and also her husband's papers and found the deed from Joseph Martin to the apPellee. He compared the numbers in that deed with the lands in the original complaint and found they were the same. He then 'filed the amendment to the complaint claiming title to • the lands in appellee through this . deed. Witness. decided to have the deed reCorded. He tdaced the deed with a check in a letter to appellee containing instructions to the clerk of Prairie County as to !how to prOceed, and what disposition* to make of the deed after recording it. He mailed the letter to appel-lee. .APpellee informed ivitness that -the letter never reached her: The consideration mentioned in the deed was $1.00 and love, and affection. On croSs-examination Witness' . stated that he had • a 'conversation _with appellee before . he filed 'the first coinplaint. He knew at that time that she was claiming . to • have a deed to the land.. -Witness was asked: "Why is it . then that you brought suit for - her as the heir of her daughter if you knew-at that time she had the deed?" Witness answered : "I did that for this reason: I told you a moment ago, and I rePeat it, that lost deeds are seldom found. Mrs. Kerrin, if she will pardon me for it, I found to•be about one of the most' ignorant women about land titles : that God Almighty ever allowed to live in Arkansas, and the thestof the information that I could get about the title I got fr`om outsiders, and for that reason I alleged, basing my . allegations as much upon my l _presumption-of -the law as , otherwise, that : she inherited if because I : had underStood that the heirs had agreed upon the interest that each shOuld have." Ques. • "You drew that corn-Plaint,-. Mr. Rachels, didn't You, on your Understanding of the law at that time; that she would inherit from her dau g hterAidn't you?" Ans . : "I . drew that 'complaint at that' time for a double purpose.; first, ' becalise I helieve, as I have been told; that those heirs had agreed. on a division, and furtherniore because I believed that under the peCUliar circumstanees of the estate and on
190 ERWIN V. KERRIN. [169 account a the agreement the court would so hold." Ques: ".You, didn't: change your complaint until after .you receiyed ,a letter :from me calling your attention ;to the decisionof • the :Supreme , Court in , the . . ease . of . yt,IlioGuire,. did; you?"' . Ans.. „` I. didn't change my complaint, until after I I ,r eceived that: and many other ,letters , from you, but lmew of that case, before you.wrote me,,apfi I , wou , ldnt haye,changed my complaint if..I hadn't had the deed in my hand,at the time, and;was reasonably certain ; that I, ,wonld he , .able, to, preserve it and present itin, court,". •, leach.testified that-he -represented the Martin heirs in: litigation involying the -title to: the , lands described ineth . e complaint. , He, then testified to, the various deeds executed 'to- him: by the : Martin heirs; and the deed ex0-: catted , by him to :Erwin,, as. already mentioned.,! He further , stated: that at the time his contract with"the Martin heirs:was . signed tC, represent' them in the litigation; it was :his., understanding 'that. Viola May . Martin, •,,Ab Martin, Artimis'sa Martin, and LiZzie- M•artini. r were the only 'heirs • of , Jesse :Martin, each having ,*a one-feurth interest .in , the, estate., , „The , Only claim that the appel-lee ,had ever made to these lands was a:dower-interest as the widow of . Joseph Martin: The deeds -were , Made , :on the theory. that .whatever Interest:Viola May , Martin had' in Abe lands Were.,.cast. , by the law 'of descent;uPon Ab Ma:rtin,.:Artithissa. McDaniel and Lizzie 'Langfordi, and the deeds, mere executed , forthe purpose of conveying to Erwin all the. , title : exeept, Such interest as' the. appellee might. liav6in .the lands as the widow of .J.oseph 'Martin. The ,deeds mentioned were• identified and; introduced,:in evidence. Witness then enterect•Upon , an;. ectefided . and detailed explanation of his employment..and• connection with the • litigation involving, title 'to the lands -in' controversy and the result, of that litigation, -which -it is unnecessary, in .view, of the conclusion we-have reached,' to . set forth at . length,. and ,it wonld' unduly extend .this opinion to do so:: 'Witness 'stated 'that: when the lands
ARK. .-1 • ERWIN V. .KERRIN.. 191 were sold. the . question of appellee's interest was dis-cussect, , andit Was the understanding of . all parties tliat the' only'inthrest she: had was a. dower interest, Which Was-tO 'be later adjusted. Ile further stated that, during-the s -eVenteeii years of the litigatiOn invCilving the 'title:to tlie , randS in controVersy, he had 'never been: infOrined the 'aPpellée that she 'had a deed' frbin , her' hUsbantd hiS'UndiVided interest in the lama. :Witness , sfafea:ihk he Wrote r 'a lettei to apPellee On Angn'st 5, 1916;:*11161i the aPpellee . had introduced in :.eYidenee. Contain . ed a _ ft • ion . g others the folloWino. am . willing . to buy , ont . yonr interest if we can ail* -On the price,' but. don't care to buy untif:the case is:decided. '! This letter ' was writen in response to . a letter i-eceiired by . witness froth the ,apPellee with reference to the 1,and matter—the litigation then pending in the . - Supreme Court—in which she sought to sell her dower interest in the lands. Wanes§ was informed by the appellee that her interest was a dower interest, and that is the interest witness suggested' he . might buy ' when the Supreme. Court passed on the case. .The letter was written with that Understanding.* We haire thus set out fully the testimony:..upon which . the .appelleet relies to establish her title tu . the lands in' controVersy through the . alleged . loSt . deed' Of her hUsband.' The rule_ is well, established . in this State, as well a§ 'by*the authorities generally, -that the -hurdeni.isIttpon -at -é W -116' Claims -title under' the alleged lost - instriiment to establish the execution, contents, and IOSS" Ofsuch instruniCnt f,y the; clearest, most Con C -hiSikTS, and , satisfactory proof. Ninin, v, Lynch, 73 Ark . , 20; -.Kenaedy v. Gilkey, 81 Ark. 147; Jacks v. Wooten;:•52' Ark.,. 515. See also 25 Cyc. 1026, and numerous Case§ cited in note, 178; and niimdi ; Ous' Ca§e§- Cited ir; i noYe. -'1\Tote to '4 1 ,lark.v. .'1 1 4i -lier,. .. 8 . L. , is. :6'441:;',1,-ohOn je-oroedy, NY. .221.i, :almdes.,v.,,ViwsOn,.52. 685..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.