860 • PYLAND V. GIST. [177 PYLAND v. Gist. Opinion delivered July 2, 1928. 1.- GIFTS . --SUBJECT-MATTER.-T-A promissory note or any chose in action or other evidence of debt, together with security, may be the subjeci of a: gift inter vivos. 2. APPEAL AND ERRORCONCLUSIVENESS OF CHANCELLOR'S FINDING.- A chaneellor's finding on a question of fact is conclusive on ap-:- unless it is against' the prepondeiance of the evidence. 3.. - Grrrs- INTnit iivos.—To make a valid and effeetivegift inter vivol,
'there must be'an intention to transfer title to the property •as
• well as a delivery by the donor, and an acceptance by the donee. , Appeal from Craighead Mancery Court, Eastern District; J. M. Futrell, Chancellor ; affirmed. ' 'Caraway, Baker Gautn-ey, for appellant. Block &Kirsch, .for appellee. ' • MEII:AFFY, J. The appellees brought suit against ,J. E. Vaughan and Belle Vaughan, his' wife, and Min-nie Pylandi alleging that J. E. Vanghan and Belle Vaughan executed and delivered to J. P. Gist their prorn-issory note for the sum of $1,000, due three-years after date, and -bearing interest dt the rate of 8 per cent. per antum from date until paid, and that,,to secure the payment of said note, J. E. Vaughan and' wife made, exe-
ARK.] PYLAND v. Gist. 861 'cuted and delivered to Roy Grim, as trustee for J. P. • GiSt, a deed of trust conveying the northeast quarter of .the . : northwest quarter of section 26, township 16 1-iortN range 7 east, in the Eastern District of Craighead CountY, Arkansa . S. It was alleged that:Minnie Pyland, a niece of J. P. Gist, induced him to deliver the note to her for the purpose of colleeting only. That she Ifailed` and refused to surrender the note and deed of :trust, but claiined that Gist had giVen it te her. Vaughan and his wife filed ansWer i admitting ete-cution Of the note,' and their readiness and willingness to pay, but that they Were unable to determine to *horn payment should' be made, and refused tO pay until the rightful ownership and possession of the note was determined. Minnie 'Pyland . answered, admitting the relation between herself and plaintiff, Gist, admitted that she had the. note . :and.mortgage in her possession; but -denied that' it was*given her for the purpose of collec-;tion, and asserted that it was given to her as A gift, and that 'it was dilly asSigned te her as such. • J. P. 'Gist, who was , More than SO years old, testi-'fled, in substance,' fhat he lived in Dunkliri County, Mis-Souri;' that* lie cOuld not read and write, never went to Schoora day in , his life; that Minnie Pyland Was his niece, the daughter of his brother ; that he gave her the note so she could cellect it; that she asked him to give 'it to her, and that . he 'did not care' Who collected it, just 'so it was . collected. 'She waS to celled *and pay it over AO him, and had never done that. He had lost•his ihearing; 'or could net hear very well.' J. F.- Miller testified that he knew Polk Gist, and had known him for more than 30' year's . ; that he could not hear Well for seNietal 'years; and fel-rn the last four or five years had been very deaf, and *that for the last -few years his Mind had not been very goed; that this .had existed- for:six or seven years. WitneSs also knew 'Minnie Pyland, and Was' present when - there w'as a conversation between her and SenatOr Ely and his Son. Ely arid his son are practicing' lawyer§ in MiSsouri, and had
.862 PYLAND V. GIST. [177 a case in Missouri against Mrs. Pyland. Mr. Ely asked Mrs. Pyland about the land deal, and asked her how she happened to have the note, and she told Mr. Ely that her uncle, Polk Gist, lived in Missouri, and had turned .it over tO her to collect because she lived in Arkansas, and instructed her to deposit it in the Bank of Monette after she had collected it. J. E. Vaughan testified that he owed the debt, and that Minnie Pyland, in a conversation with him, had said the note Was in the bank, and that it 'belonged to her, and that no one was going to beat him out it. That she 'further said they have been taking his money just as 'fast they could get it, and this is one time -they are not going to beat him out of it. Witness' wife was Gist's niece; the same relation to Gist that Mrs. Pyland is. Allen Cluste r testified that he was present when J. E: Vaughan had a conversation with Mrs. Pyland, and that Mrs. 'Pyland said : "Whenever it is to be paid,.it is to be paid in my name, so he will not be beat out of it"; and further said, "he gave it to me for collection." Tom Ely, Jr., testified that he was present when his father had the _conversation with Minnie Pyland, and that Mrs. Pyland said that Mr. Gist lived in Missouri, and this land was in Arkansas, and he gave her this , note to collect. Robeil Braden testified that he had known Gist practically, all his life, and that he.helped to make the .transfer of the note by Mr. Gist to Mrs: Pyland; he identified the note, and at the time of the transfer he wrote the typewritten part and , his name there; and that Mr. Gist said he wanted to give the note to Mrs. Pyland; that Gist could not write; there was very little conversation; Gist was hard of hearing. Mrs. Pyland and Gist came into the bank, and she stated that Mr. • Gist wanted to transfer the note to her; and witness wrote the indorsement on it and e4dained it to Mr. Gist. Gist asked the witness if he could give the nbte to Mrs. Pyland, and witness asked him if that was what "he wanted to do, and he said it was. He could not write,
AIM.] PYLAND V. GIST. 863 and witness wrote his name. Mrs. Braden and Braden witnessed the mark. Mrs. Braden testified about witnessing the mark, and that nothing was said about taking the note for collection. - Macey Pyland testified, in substance, that her husband was Mrs. Pyland's son; she knows Mr. Gist, and knew about the note from Vaughan, and knew that Vaughan had taken the bankrupt law, and Mr. Gist said that he had given the note to Minnie and she could make Vaughan pay it because she had a deed of trust to the land. She heard the conversation between Vaughan and Mrs. Pyland. She was also at Mrs. Pyland's when Mr. Ely and Mr. Miller came there, and heard that conversation, and Mrs. Pyland did not say she had the note for collection; she did say that "for collection" is not on that note. _ _ Mrs. Minnie Pyland testified that Gist gave her the note, signed it over to her at the bank, and gave it to her, and that• she left the note at the bank. That when he gave her the note she thanked him and told him that he Would not want for a penny of it, that she would collect it. There was nothing said and no agreement or unde'rstanding that she would collect it for him or give it back to him. That at the time he signed the note over, Mr. Braden asked him did he understand that he was transferring the note, and he said yes. • There were some other witnesses who testified, but the evidence is conflicting, and we deem it unneces"sary to set it out in full. A proMissory note or any chose in action or other evidence of debt, together with security, may Ibe the subject of a gift inter vivos, and appellant contends that the proof 'conclusively shows that this was a gift inter vivos; that it is shown by the indorsement of the note and by the testimony of the Bradens and Mrs. Pyland, and that none of them are contradictory as tO:any fact, circumstance or detail of the transaction that took place at the time the gift was completed.
864 .. PYLAND V. GIST. [177 Gist testified that he gave the note to his niece for collection, and his testimony is corroborated by other witnesses., Mrs: Pyland testified that it was given to her absolutely and riot for collection, and there is some corroboration of her testimony. It is therefore a ques-tion- of, fact; and the finding of the chancellor _is con-elusive: her.e, -Unless it is against the preponderance, of the" evidenCe... 'This, court has said: "While the numer-ital.-weight- of the testimony 'is against the appellee, we do:inot , think there..is" a preponderance of the evidence against the, finding of the chancellor in holding ;that there' *as, not a 'delivery ,of the deed with_the •intent to pass' title. (We have said that the question of delivery is generally one of intention as manifested by acts or words, and that there,is no deli'very unless, there is an intention on, the pdrt" of :the • actors in the transaction to deliver, the deed in order to pass the title immediately to the land conveyed, and that the grantor:shall' lo ge , dominion over the deed. As we have.already said, we do not think the evidence in this case shows a delivery of the deed with the 'intention, that the grantor shall not thereafter have:any 'control or, dominion over it. It is a question largely of -intention, to be determined by the -evidence, and we think the Chancellor's finding is supported by a preponderance •of the evidence." Hardin v. Russell, 175 Ark: 30, 298 S. W. 481... "In appeals from the chancery court.triats are de novo,' but the findings .of: fact 'made by the chancellor are allowed to 'stand unless they are' clearly against the preponderance of the evidence." Henry v. Irby, 175 Ark. 614y1 S. W.' (2d.)' 49; Doane v. Rising Sun'Mining Co., 139•Ark. 605, 213 S. W..399; Hyner v. Bordeaux, 129 Ark. 120; 195 S. W. 3; Midyett v. Kerby, 129 Ark. 301, 195_ S..W. 674; Houser V. Burchart cg Levy, 130 Ark. 178, 197 S. W. 28; 'Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260. • ' . • court . has repeatedly held, to make a valid and . effective _gift-inter vivos there must be an intention to transfer title to the property as well'as d.deliVery .by
ARK.] 865 the donor and an acceptance by the donee. There must be an intention on the part of the donor to relinquish the right of dominion on the one hand and to create it on the other, and delivery must be not only of possession but also of the dominion and control of the property, and it must appear that it was the intention of the donor to transfer the title. In this case Gist swears positively that he did not intend to give the note to Mrs. Pyland, but that he gave it to her for collection, and the chancellor found that it was not a gift, and his finding is supported by a preponderance of the evidence, and the decree is therefore 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.