ARK.] HuLt V. Hum,: 631' • . , • • 4-3027 . . • .• • •;• . Opinion delivered'June 19,; 1933 7 . . 1. EVIDENCE— I BUROEN OF ' PRPOF OF FORGERY.—In a suit . tO cancel • • 'dee& as forgeries,• the* burden' of : Proof to show :that the 'deeds • • Were genuine was ' not, on• the defendant. 2. EVIDENCE-7 FAILURE TO . PRODUCE DEERSPRESHNIP'TION. Whcre, in a suit to ' cancel deeds as forgeries, defendant failed to . produce his original deeds in evidence when demanded, such failure gives rise to a presumption that ihe deeds, ' if proauced, woUld favor : Plaintiff's claiM. • • • 3. DEEDS—WEIGHT OF EVIDENCE.—Evidence 'held to . warrant a cancellation of .deeds on the ground that they were.forgeries. Appeal from. Carroll . Chancery Court, Western District ; Lee . Seamster,eCha.ncellor; affirmed: 7 ; . • • S TATEMENT BY 'THE 60HBT. ;' • r fils' suit was brought Aciir : ath;ellee, widow • deL ceased, Dick Hull, ; who died : testate; seeking. the. cancellation • of- two deeds 'purporting itd•have • teen executed • by. her :said huSband,pridr to •her.'mArriage .. with' him; :alleging that they .were for • ged;• or, if genuine; they -were •executed , .for the. pui-PoSe Of . , defrauding .ber. •of . her marital rights. The prayer Was for the. cancellation of the • twci deeds and the ve§ting • in her of doWer iand 'homestead rights; and for a sale- of the•lands, if it eoUld . not par. titioned, and payment to her' •otit • Of -the . proCee& of the widow's portion the •value of the' dower • and homestead rights. Certified copies. -of the- challenged •:deeds7were exhibited with the complaint, , . The defendants; appellants,-the , adiristrator •of -the estate, all Of the-devisees Under • the will of the deceased-hnsband, one of whom, Arli's HUH,. Was:the grantéein the'
632 Hum, v. HuLL. challenged deeds, _were all -properly serVed .with..sum: mons, but only the administrator with the will annexed and the legatee, the, grantee in the .deeds, answered. The answer of the administrator was but a formal denial of the allegations of the complaint and an assertion of the want of interest in the controversy. The legatee, gran-. tee, answered specifically denying the allegations of forgery and of fraud, and alleged that the deeds were genuine and executed in good faith and prayed for a dismissal of the complaint for want of equity. It is undisputed that I. M. (Dick) Hull,.the deceased husband, was childless ; that by his first will, executed in 1919 during the lifetime of his first wife, all his.property was given equally to his half sister and to four nephews and nieces, children of A. L. (Gully) Hull, a brother, and directly to them in the evOnt the wife predeceased him.. After . the first wife died Dick Hull married appellee on November 16, 1929, and died or was killed on November 15, 1930. The deeds questioned bear date of June 11, 1929, one conveying the "Clark Place" . and the other the "Home Place" to Arlis Hull, nephew and one Of the devisees in the will. They were recorded respectively November 21, 1931, and December 11, 1931. Aside from the copies of the deeds, the will and the probate and chancery court proceedings in relation ,to the will, the testimony is by deposition, and it is voluminous. It tends to Show that aPpellant is a son of A. L. (Gully) Hull and a nepheW of Dick Hull, his uncle, a brother to appellant's father and -to his other uncles, Andy, Abe and Marion and a half brother to Nettie Hiser, all of whom were living except his Uncle Dick-who was killed NoVember 15, 1930, and one Johnson was convicted of the crime. On February 25, 1932, appellant had nOtice served on Della Hull, appellee, widow of I. M. Hull, of his ownership of the Hull lands, and that be would expect the customary rent for the use of the lands; and a copy of this notice was exhibited. - He also had notified her in
. AMC ' Huta, V. Hunt. 6'33 person in the month of january, 1932, in 'the presence of one Denny. • " On June 11, 1929, his Uncle Dick gave him the two deeds in question, which he -had recorded. The one .to the "Home Place;" where his uncle lived at the time of his death and the widow still lives, conveyed 80 acres and- was recorded about December 11, 1931 ; the other deed was. to .the "Clark Place" and this was also recorded; although they were not recorded at the same time, the deed to the "Clark . Place" being recorded about 20. days . before tbe other • one. Witness said he took both deeds at the same time for record to John Pulliam, the circuit clerk at Berryville, who told him that they would have to be recorded at Eureka' Springs in the . other dis, trict, and that he would take tbem o -T er there and have them recorded. • Appellant paid the clerk $3 fees for the recording. 'Explained the reason-, for the deeds being recorded on different dates, saying that when he called at the office for them Mr. Pulliam,- the clerk,. said in-his hurry be had forgotten them ond recorded only one which he found, 'but would find the other and have it recorded in a few days, and be could call for it then.. Said Pulliam was dead, as was also the justice of the peace, J. H. Hol-mnn, who wrote them:, and I. M. Hull who executed the deeds. -Said he had given the deeds to his father to deliver fd attorney Leathers to file with the . shit. Said subpadna had been served on him io bring the deeds or. testify; undei'stood that a subpoena had been left at :his father house, but had never seen it; s aid the deeds Were sent to attorney Leathers just -before the . answer WaS filed in this 'case, and he supposed they, were withdrawn by Mr. Holman, who made the deeds. When the deeds Were executed, the first he knew of them was when his Uncle Dick gave- them to him and said he owed him $2 fo'r them which witness gave him: But that was not 'all that was said at the time: • - • He did not •know that appellee was going with his
uncle, Whe had neVer , said anything aboUt getting mar-tcrhim: He was in poor . health and said ., "Herd are the' deeds' far this." ' Said he 'didn't want- some of the kin
634 • Hum, v._HuLL. [187 to have it. His uncle-did not have possession of the.lands or control of them, but lived on one of the -places, the "Home Place"; of . which he had control. They, had a verbal contract about how long.he was to live . there, and witness had control of the "Clark Place" and did not have to pay- rent. .. . ! • He could. .not . find the • original deeds to produce •at the triaL • He went : to the clerk's - office in the same building:where attorney'Leathers had his office • with the cir-xuit clerk, C. D. WallS,.*here'Leathers had left the deeds with the .clerk Walls to be delivered -to him becanse he was going ta be out • of town: Was not present when Leather's 'delivered; the deeds. tO Walls, and could not find Walls at his office .when he 'tried to see him and get the deeds. • There Was Much' testimony by the other members of the:family tending ' to ShoW that it ivas • not underStood in the community that appellee and the' deceased • were goitig together . OE that 'anybody knew of. the' contemplated • marriAge* befOre it occurred, . di- that 'Stich . marri:- age W • a ! s conteMplated before theexeeution of the 'deeds. . • There was . Much testith6ny also aboit the feeling existing'among the relatives and Of the deceased toward his brothers and_ sisters; that he' had . frequently . said what he was gOing to do . with . hiS prePerty in -order that they should not . be in a position to. quarrel oYer a division of it.. One witness stated that ' deceased aSked his help at'one tithe, saying he didn't . want . to ask his folks to do anything, : that they had never 'done' anything "for him,' and that , was_why he had married * .so his, kinfolks could 'not fight over his property.' . - The testimony-also showed deceased's attitude about this, and his various statements, madelong •after it was claimed the-land had been deeded away, disclosed that he still claimed ownership thereof.. One witness testified that he had- made. some remarks ab6ut conveying the places, thinking it might prevent one ,of his enemies in the community from killing him, which . he had threatened to. do; 'such. testimony indicating that he had: not . dis-
ARK.] HULL V. HuLL 635 • posed of these plaCes; but still owned them long after the date of the purported conveyance by the deeds.. One- Witness corroborated -the . Statement of aPpellant about the deeds having been delivered to him by the - grantor, Saying . he- had-'seen the' 'deeds delivered to him along with the :statement that they were:the . deeds. • • The testimony;- however, showed that the grantor the deeds Was dead ;',th -al the official Who wrote them and took the 'acknowledgMents' to theM was . also dead; and that the clerk, Mr. Pulliain, fit) WhOM they were delivered' for record at Berryville and : Who , said 'he Would take' them •i to' Eureka' . Si)ii.hgs' for proPer ecord, wa,S also, dead. Thal the ' eHginnl' deedS'Avere hot Produced' dence, notwithstanding . ' they had been demanded, al-. though an explanation was made by appellant.attempting to show why the demand -had not been complied with. The chancellor found that certain deeds conveying the lands to Arlis -Hull•were recorded on certain, dates, and that "Arlis Hull failed to ,produce said original deeds in testimony, although the burden of proof was upon him to show that said. deeds : were genuine" ;' and also that said deeds were .not executed by 1. M. , Hull and were , not genuine, _but . that .both , -,.were forgeries . and should be canceled, and decreed accordingly, holding- the widow entitled to dower and homestead the lands, and from this decree 'this - appeal-comes.' Festus 0. Bull:, for appellant. Claude' A: Fuller , and A: (after'Stating the facts) It iS inkSted that the chancellor's lindin irs and decree 'are :cOntr . 4-- to the. preponderance of the testimony. . Although . the court incorrectly annOunced in its-findings that. the burden: of proof was , upon appellant, he having' failed to produce. the original deeds' in 'evidence' When demanded,' tO" show the alleged forged : deeds. were genuine (Hildebrand: v. - Graves, 169 Ark. 210, ,275..S. W. 524; -Miles v.. Jerry,..158 Ark. 314, 250 S. W. 34), it is also -true that-such .failure to prOduce the- originaP deeds : created -a --presumption that *such deeds, if prOdnced, W6uld fav6r the claiin of
plaintiff. Ramey v. Fletcher, 176 Ark. 196, 2 S. V. (2d)- 84; Lynch v. Stephens, 179 Ark. 118, 14 S. W. (2d) 257. Appellant's explanation of his failure to . produce the deeds when demanded was evidently not satisfactory to the court, nor sufficient to overcome the presumption. The majority is of opinion, after a careful examination and analysis of the testimony, in which the writer does not concur, that. the chancellor's findings and-decree are supported by the preponderance. of the :testimony; and no useful purpose would be served by setting out the testimony more fully as the matier is largely a. question of fact, which has been .found in the appellee's favor upon testimony sufficient to suPport the decree. We find no prejudicial error . in. the record, and the decree is affirmed.
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.