608 _HADEN 'V HADE.N... [187 . The only ;evidence which tends to establish a sale of the liquor by the appellant was the rebuttal testimony of this officer and . in this state of case the Attorney General has confesSed error oil the ground that tio . evidence of a . substantive nature was introduced at the trial of the case tending to establish the guilt of the ,appellant. We have examined the record and are of the opinion that the position of the Attorney General is well- taken. The rebuttal testithony was admissible fel . • the purpose • -of testing the credibility of the witnesses- by showing that they had made contrary statements, but- was admissible for no Other purpose. Although there wa g •no request made -by the defendant, the court should-have so cautioned the jury; and in the state of the evidence should have directed a verdict of acoittal. The rebuttal testimony was a purely• hearsay statement and was in no sense substantive proof of the fact .charged. The cases cited by the Attorney General sustain his position. Thomas v. State; 72- Ark: 582, 82 S. :W. 202; Doran -v. State, 141 Ark. 442, 217 S. W. 485 ; Murray v. State, 151 -Ark.• 331, 236 S. W. 617; Burgess v.. State, 179 Ark. 785, 18 S. W. (2d) 336. . Reversed and remanded. HADEN v. HADEN. 4-3034 Opinion delivered June 12, 1933. 1. DEEDS-CONSIDERATION OF sur p onT.—Where land is conveyed in consideration that the grantee will support the grantor during life, equity will cancel the conveyance if the grantee neglects or refuses r to coimily with the-contradt: 2. - DEEDS-CONSIDERATION OF SUPPORT-EVIDENCE.-IR a suit by a mother to cancel a deed to her son alleging a breach of promise to support the mother, evidence held to support a decree for the son. Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor ; affirmed. L. A. Hardin, for appellant. Roberts 4rE Stubblefield, for appellee.
ARK.] HADEN, V. HADEN. 609 BUTLE11. • -J. Prior . to July -2,.1928, the legal • title to a -small farm sitnated near -Little Rock known ' as •the Valley View• Farm' Was in the-appellant ); MrS. Nannie Haden, the -mother of the appellee, H. M. Haden. On that :day Mrs.;_Nannie Haden conveyed - thiS farm to her . son by :warranty deed for; the ;express •consideratiOn of $1, • reserving.-however in: the.: habendum • clause • for herself and-assigns." the . full possession, benefit and •se •the. ahove4lescribed; property . 'as .. well•as -the" rents, issues and profits thereof for and dnring my natural life." This suit wits instituted by the appellant 'to cancel the above deed and revest the fee in her: •-Theullegation upon;which her prayer ;for the-, telief named . i8 grounded, s : that She was indueed to eXecute the' deed because . of an' agreement made by-her son, the grantee; at that time to the effect that he'would support her - during the ' remainder of her life; that he had breached this agreement by failing to provide anything for her maintenance, and that be at the -tinte; Tefused to : pay -her anything therefor; that •he had'taken possessien of, and was then occupying, the farm and-was refusing . to pay tO' her any . of -the- rents; and profits arising . therefrom. ;She . further -Alleged that the : Appellee was not financially able to carry out ;his contract with her . ,*and that lYif he was •eVer able to do . so his wife• Would not. permit . him -to carry' the .san-ie out." • The appellee anSwered denying • some -of the• nllega-thins' of the - cOMplaint which we'deem it unnecesSary to set Out and denied that' the consideration ;for the -execni-fion of the deed-wAs that • the defendant should furnish a home and • supportand maintain-the plaintiff during her •natttral life, but that the defendant, due' to.his love for the plaintiff, his naither,-:has in the past furnished, and does now, and will in the future, furnish a home for the Plaintiff and maintain and•support, her:- ; - By agreeMent . • . of the- Parties the testiniony'in the 'case was 'taken orally • at'-the bar • of the coart,' Amd,;-after having - Consideed the ease on the* pleadings - and testi-: aiony adduced; • the'court fOund that a•certitiri other deed
610 - HADEN V. HADEN. [187 executed on July 2, 1928, was executed and recorded through error and mistake, but that the deed first mentioned ought not to be canceled, but that according to its tenor and effect the plaintiff was entitled to the possession and to the rents and profits arising therefrom for the year 1932 for which defendant was required to account. The court further found that as, to the rents preceding the year 1932 the defendant had, accounted to the plaintiff except for balance due on a rent note, which note was ordered delivered to the plaintiff or to her attorney, and possession of the premises decreed to her, and as to all other matters the complaint was dismissed for want .0f.,equity. Tbe appellant insists on appeal that a preponderance of the testimony establishes, first, -the consideration for the execution of the deed as allezed in her complaint, and,, second, that the same has failed 'because of the refusal of the defendant (appellee) to support and maintain her as•he had agreed. . . Another question arose incidentallY during the progress of the trial which has been discussed. somewhat by counsel for the respectiVe litigants, namely,-that as a part consideration there was a-promise by the appellee made..to the appellant, his mother, that . he would not •marry. It seems however, from a careful analySis of the testimony of. Mrs. Haden, the mother, that this was riot -any part of the alleged consideration for the execution of the deed, and, while the chancellor did not make any finding of fact regarding What was indeed the consideration for the conveyance, ,the conclusion reached by . him necessarily carries with it the finding that the question of appellee's marriage was not in the mind of either party at the time • of- the .conveyance, or that it was a moving.cause therefor. We therefore will discuss this phase of the case no further. . The real questions are, .was the consideration aS alleged by-Mrs. Haden, and, if so, has it failed'? As .stated, •he chancellor , made no finding of fact, but . his decree necessarily results from the findings that either the consideration was not as alleged or that :the promise had
ARK.] HADEN V. HADEN. 611 not been broken. We think the findings of the chancellor in the negative on both of these questions is not against the preponderance of the testimony. As contended by appellant, under the settled rules in this jurisdiction, Where land is conveyed upon the consideration that the grantee will support, maintain and care for the grantor during:his life and the grantee neglects or refuses to Comply with the contract, a court of equity will cancel the conveyance and reinvest the grantor with title to the estaie. Edwards v..Locke, 134 Ark. 80, 203 S. W. 286; Owen. v. OWen, 185 Ark. 1069; 51 S. MT. (2d) 524. The fads do not warrant. the application of this rule. • . The facts established by the proof in the case are that . the grantor in the conveyance was at the , time of its execution, about seventy-four or _five years of age.. The grantee was her youngest son, and had never, been married. He and his mother had lived together since 1918, in which year . the husband and father , died. Their association had , been of the most intimate and affectionate nature. Appellee was admittedly a dutiful son and Man7- ifested for his aged mother great love and solicitude. She, on her part, adored her son. In the summer of 1928. they were both taken sick at about the same, time and required the services of a professional nurse. During the convalescence of the.mother the question came up as to the situation in which the son Would have been 'left had the Mother died; and she told her son to request a Mr. Britten who : WaS in the _employ of the Central Bank in its real estate dep , artthent; and' an old' friend' or herS, to come• td see her. Mi . . Britten did so, and they discussed the queAion of What provisiOn she should Make . for' the appellee. She told "Britton ' , of the kindne gs . Of her •sOn, that *hit they had was the reSult of their joint efforts, and that .she wanted him at her death to have all: She had. She suggested the making of a will , to that effect. After some discussion, it was decided between* , the *two that, ing tead of making a will, she would convey the proP-: erty to her son by deed. In furtherance of this,' Mr. Britton on his' 'return to the bank, drafted A Warranty
612 HADEN V. HADEN: • [187 deed, conveying the Valley View Farm to -the appellee-for the express consideration of $1 . . I tlie meantime-the appellee had been discnssing the question. with the trust officer at the bank informing him of his mother's intention, and caused Mr. Britton to ' draw the deed ' Ant. mentioned in this* Opinion, the One in Which there was a reservation tO, the mother of the. possession and income derived from the farm during her life. .Both of these deeds were taken or sent, by Mr: BrittOn to Mrs : Haden and read to her and explained and left in her possession for sortie tWO *or three Weeks, when Mr, Britton's seere-tary;who*Was a notary -public, accompanied by Mr. Brit7 ton, visited *MrS: Haden, and she then signed and .ac'- knowledged both deeds and both were placed of re,Cord. This Seeins to have been done by 'Some' one connected with the bank, but it is elear that it 'Was not the intention of _ the son for the-mother to . 'eonvey the- preSenf POssesSion and revenue of *the farm to him during her lifetinie. hig the year preceding the 'ecdcution 'of fhb deed and until the latter part of 1929,. the mother and Son lived on the Valley VieW Farm, and sbe stipposed that 'during 1029 hp' Was still: unmarried; he- discovered soinetime in No: vember of that yeái- that-hor son had- married without her knoWledgel and that he' hiid been' Married for abont nine monthS.' . • • . *It is quite • evident that • fitis , fact, -, when learned by the mother, grieved and angered .her yery much. It is not very clear when t the sOn . brought his Wife home,.. hut at any rnte . the . mother . deterinined . tb , mOve_to Kentucl,cy, where se had ,been born:and reared, 'and • where tWo .of,• her . sisteis dived at a little . town. Called Bandana.. ,Just about this.time t . he • * _ son wrote to one of his aunts at .Ban-*. dana indicating' io . ber the trouble in. - 1,7 1iich he_ found himself,. The mother remained with her sister in. Ken-tucky three. or four , mOntbs during whick time the' son converted a -house he •owned in the city into - two apartments making out .of it . what is , called. a ":duplex." It , was his intention : that he and his wife . should occupy one aPartment and his. mother the other. When his . mother returned, this arrangement was made and proved
ARK.] HADEN V. HADEN. 613 satisfactory for a while, but the mother was not . happy, and a sister came to visit with her for a time. .The mother. complained . of neglect on the part of . her son and of her daughter-in-law. She decided to go again to Kentucky where she remained until sometime in the year 1932, when she returned and instituted this -suit.. At the time of her testimony . she lacked but two months of being seventy-eight years old. Her son .at that time Was about forty-five. She testified at considerable length to the effect that before the execution of . the deed her- son promised to provide a home for her and to support her as long as she lived ; that this was one of the reasons for the 'executiOn . of the deed. She alsO stated that ber, son had failed to provide for her and had made it so disagreeable for her at home that she could live with him no longer, and that since - her removal he had failed to provide for her maintenance. During the times the mother was in Kentucky the son wrote to her from time to time and these letters, appellant's counsel insist, corroborate her testimony and show of themselves that the appellee had virtually driven the appellant from his home and had- refused to further support her. On • the question .of . ..whether , or not. there . was ,a promise made by the son for future support, and -that • this was the inducing cause for the e.xecution of the •dee.c1._ and contradictory- of the testimony of the -appellant; is - the testimopy of the. appellee. corroborated: by that -of,. Mr. Britton and one other witness and also-by therecitals- . in the deed itself. The appellee testified that there was.. no mention made as to- the support of his -mother in the futnre because that- was taken for . granted ; that he. had . done this since the- death .of , his .father, and that his . mother knew that he .would.always do , so. Mr. Britton testified that„in discussing the question - with the mother, nothing was. said. about the-support that.. her son was to give her, hut • that the reason, as . .ex- • pressed by her for the act on her part, was that her son had been faithful to her, and that her present property was the resnit of his thrift, and . industry. - it is also
614 IlAn'EN' II.X.DEN: 1187 ' clear that the reservation in the deed was o'ccasioned by the' forethought 'of the appellee to protect' his mother in the 'eVent of soine financial, miSfortune occurring to him 'in the fnture. This, of itself, tends to negative the idea that the cOnsideration was the promise of the son to support his Mother in the future. On the question of the son's support of the mother and how the Valley View Farm was acquired, there is but little substantial conflict in the testimony. In 1918, when Mr. Haden, .the father, died, Mrs. Haden's sole property was a small farm of eighty acres about sixty of which were in cultivation . and on which there was a poor farm house. Appellee owned forty acres of land adjoining this farm Which also had a small house. upon it and about fifteen aCres in cultivation. With 'the consent of hiS mother he' t • ra • d .. ed the entire 120 acres of land for property in Memphis . worth about $3,500. The value . of the . eighty acres was about $2,500 and of his forty acres about , $1,000._ , .At this time he was a bOokkeeper drawing . a salary, and'he remained constantly employed until about the time of the beginning of the disagreement between him and his mother. During these years he made frequent trades, improving each property as he acquired with- his' own resouroes, and at all times keeping enough property in his niother's name to represent the valne of,the land owned by her in the beginning. During this time they lived together, she keeping house. and he. providing for all' the necessary expenses. The title to the Valley Yiew Farm 'was taken . in the mother, and upon it the son expended 'a 'great deal in improvements making it inuch more valuable than when he purchased it.. He'stated;_ and the testimony' warrants the . conclusion, that,' althoUgh' the title was in the mother, in reality he ownédf a .considerable interest in it. About the tithe tlih' cOnveYan'ce: 'in question waS made tO the appellee the' VAlley Viekv 'Farm waS leased to a tenant for $500 a year for a p eriod of five years. This tenant kept the farni about three years, but when , values fell he found it' impossible to • continue and so abandoned his lease. Foi a part of the time after the mother left for
ARK.] HADEN V. HADEN. 615 Kentucky,.the appellee sent to her each month'about $40. This was .approximately the rental value of the farm for each month.. About the time the tenant abandoned his lease the appellee lost his position . and suffered in common with the community at large great financial reverses. For a while he sent his mother $30 a month. While they were : in ithe- apartments- living: together he furnished the apartment and : the groceries for his mother and gave. her $20 a month. After his mother left he found it necessary to reduce . 'her remittânee to $15 a' month. She was boarding with . her sister. in Bandana and paying. $10 a month. board which appears -to have ' been sufficient to take 'care of her part -of .ithe,eXpense. The mother complains that • thdye WaknOt eriOugh furnished her to liye on,. but 'the . taCt reMains tflat,. out : of , the sums . .fnrnished she . was able . ,.,through a ..short period of time—whether it was one or two :years . is not .clear—to save -$200 which sum • she brought back to Ark-. ansas and had at the time slie . -began this laWstii.-. The Jetters , that wei.e . . W-riften . and .whiCh 'connsel Ontend .tortify the aPpellant in her . contention that. she, was virtually driven away from home, that appellee ceased to maintain her. and. refused .to: support 'l h on e ge r r , , 'were not so interpreted-by the chancellor;:nor -do We th-tiS construe theni. The' appellant; -4Xed , by the: . intrifSion of another woman in the affections of her son, dethroned froth : the 'supreme 'pbsition 'Ore had long maintained in the household, and unable.to comprehend ihe : greatlosSe's-sustained by her son and the . decreaSe in his :earning power,'WaS hurt, , angry and dissatisfied. The letters to ns seem to expres§a plea- fir patience : and understanding, and all the implications -justly-to be drawn . frorri them are. assurances to the inothe'r continned'le Of :the son and an . avowal of the purPose:to riroVide Wants to . the 'utmost eXtent Of 'hi's;ability Therefore, 'in a . n . y view cif .the .case we are of the opinion that -the evidence . : justifies the: judgment : and decree of the chaneellor. It is not to be doubted from the character of the apPellee, , as disclosed by this:record,
that he will continue. to do everything in his power to make the life of his old mother happy and easy. 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.