ARK:] GRAYSON V. .GARRATT, CHANCELLOR. 47 GRAYSON V. GARRATT; CHANCELLOR. . 4-4111. . Opinion delivered January 27,-1936.. VENUE-SUIT TO CANCEL DEED.-A suit to cancel a deed, restore, rand to plaintiff and quiet his title, with a prayer that,- if 'the de'ed be • declared a mortgage, .plaintiff be permitted to pay the amount chie • thereon held a local action in, which the chancery court Of a • county in which part of the land . is . situated has jprisdiction... • Prehibition to Garland' Chancery Court; •Sali W. Garratt, Chancellor ; writ 'denied... • Petition for prohibition by C. I. Grayson against Sam W. G-arratt, Chancellor.' • Ganglia/a, Siff ord, Godwin & Gaughan,.for petitioner. Glover & Glover, for respOndent. • MEHAFFY, J. Willie Bowie and Lueller Bowie; and Willie Bowie by Lena E. GOodwin, his' sister. and .next friend, filed in the Garland Chancery Court against C. I. Grayson, the following . complaint • • "Come the plaintiffs . and, for their cause of action against tbe defendant, allege : ' , • .
GRAYSON V. • GARRATT, CHANCELLOR: [192 •" That Willie-Bowie and Lueller Bowie reside • in Ouachita County,. Arkansas, and that Diener Bowie is the 'wife of Willie , .Bowie, and that Lena E. GOodwin is a sister of Willie Rowie, • and that she resides in Garland County; Arkansas, and that the defendant, C. I. Grayson, is a resident and citizen of Ouachita. County, Arkansas. • -"Plaintiffs allege that . Willie Bowie is the Son of Monroe Bowie, deceased, and that prior to the death of Monroe'. Bowie that he made 'a :will, 'and in that -said will, which was. Probated in Ouachita . County, Arkansas; he Willed to the- plaintiff, Willie Bowie, 'an interest in certain real estate, , a part of which is situated in Garland Connty, Arkansas.. A -copy 'of 'said . will is hereto attached and Made a part . of this cothplaint. "Plaintiff Lena E. Goodwin . allegeS that the plain': tiff .Willie Bowie is of a weak mind . and is not capable of transacting bUsinesS, and has not been capable of transacting business for himself for seVeral years, and that she, as his sister, joins with him in bringing this suit as his sister and next friend. . "Plaintiffs allege that . on the 24th day of February, 1934, that the defendant, ell knowing the inability of Willie Bowie. to make a contract, Wilfully, knowingly and fraudulently induced the said Willie Bowie to make a deed to him,, the said C. I. Grayson, thereby conveying to him• his 'entire interest in the: estate which .he had inherited from his father; and which was of the reasonable value of $40,000; for 'a small andinadequate consideration which wa$ expressed in:said deed at $750, but- all of said sum expressed in said • deed• was :never paid, and which said sum of . $750,, if it had . been paid, was only a small per cent. of the value of the interest of Willie . Bowie in said. -estate. A copy of • said deed is hereto attached and made a part of this . complaint., "Plaintiffs- allege .that,.if *said deed has any validity whatever, that it could only be. treated as an equitable mortgage. • • • - • • ." Plaintiffs further allege that the said Lueller Bowie at the time she was induced to sign said deed was under 18 years of age, and was married to thesaid Willie Bbwie
• ARK.] GRAYSON V. •GARRATT, ; CHANCELLOR: 49 at the time• Of the making of the ; said .deed,; and was:that-ried • to the said Willie Bowie -at : a very tender 'age. ;•.• • "Plaintiffs allege- that they :are now-ready,- able •and willing to pay off whateve.7- amount the. court finds the said Willie Bowie is found-to owe •the -defendant; if .he owes anything at all: . : • • • "Plaintiffs allege that the. said Willie, BoWie. is -upward •of sixty years of age, thid thatat , the time; this purported' : deed was made that the' said Willie • BoWie"was wholly . incapable on account of the: copditiop of his.body and mind to transact business. for himself on , account of disease of his• body and tbe weakness , Of . hiS:inind;: that he was easilY Persnaded ; to,. part, with his 'property . withL out . adequate consideration; that the defendant waS-an experienced • businesS . nian, and,. knoWing. the' , weakness:of the. mind , of the .said Willie Bowie, induced Min to . enter into this purpoyted deed, . and Obtained . •his :property:in :tl s manner; : and which Was a fraud per'petrated oa his rights.!,' . , Plaintiffs praYed . for an Order fixing:the amouiddne the defendant, , if any is found , to be (hie, and an 'order cancelling , the deed and reStOring 'and 'qUieting the'ititle'tO Said property. in Willie 116wie, ete. . The petitioner filed 4 . .motio4 to..quashservi . ce,.a . lleg- ing that a great portion of the land was in Ouachita County, .and .that the plaintiffs,. Willie BoWie . and Lueller, Bowie, are citizens,of Ouachita'Connty, and . the Suit was a . suit ,in peiTs 'oncivi, and . not. a suit in ,rem, and t had no jurisdiction. • •; • he , cou • r „ t • , A response to: the , motion to quash, was, filed,, and thp motion to quash. was overruled.., The peationer.. then
'filed his petition in this ., conrt . for a , writ of prohibition.
.The.attorneys . entered into the;following."stipulatiOn: "Itis agreed' by and b,etween -Gaughan, ; Sifford-,. God= & • .Gaughan, .attorney.s for the; peationer;..Q.I—Gray-son, and Glover & Glover,-,attorneys for •the.yespondent, Sam W. Garratt, Chancellor of the Third Chancery-Pis:-trict of Arkansas, of ; which : Garland County. -is. -a . part,
that the foregoing .matters, consisting of -the petition,for a writ of prohibition, the complaint in equity in, the.,cas.e
50 GRAYSON V. GARR4TT, CHANCELLOR. [192 of-Willie Bowie and . Lueller Bowie, and Willie Bowie by Lena E. Goodwin, his sister and next friend, plaintiffs, v. C. I. Grayson, defendants, No. 12876, now pending in the Garland County Chancery Court, the motion of defendant in that action to quash service, the response of the said Sam W. Garratt, chancellor of the Third Chancery District of Arkansas, of which Garland County is a part, to the petition herein; is a full and complete record of all the Matters and proceedings had in said action." This stipulation, wAs signed by the attorneys. Petitioner correctly states that the only question tor this court to determine is whether the plaintiff's action is local or transitory. He first calls attention to 67 C. J. 61. This authority states that actions purely for rescis-. sion of contracts for.the sale of land, being in perSonam, and not in' rem, are as a general rule transitory. The same paragraph from Which petitioner quotes contains the following statement : "If, however, the object of the action to destroy a pretended exchange and to free the land from a . cloud, or to determine claims and rights in the land, the action should be:brought where the land is located, although -it involved the validity of a contract for the cancellation of which it would be proper to bring a direct action elsewhere. There is hoWever authority to the effect that an action to cancel a contract for the sale of land i lOcal, and thai an actiou to rescind an eXecuted contract, and'te recover the consideration paid, Or an actiOn by the- purchaser to cancel his- contrad and liotes and to recoyer sums already paid, is an action involving a 'right. or'interest in real property; which must be tried in the'connty in which the land is situated." He neit calls attention to the cAse of Bullitt v. Eastern Kentucky Lalid Company, 99 'Ky. 324,.36 S. W. 16. The court in 'that -case said: ". An action purely for rescissibn of contract for sale of land or its specific execution is transitory—not . in rem but in personam. * * .* When, in the action it is sought to enforce a lien on land which results from the rescission, then the action becomes local." The court then copies the statute with reference to actions effecting real property. •
ARK.] GRAYSON /). GARRAIT, CHANCELLOR. 51 Petitioner then calls attention to the case. of State v. District Court, 169 Minn. 515, 211 N. W. 469. That also was all action to cancel a contract on the ground of fraudulent representations. It was mot a. suit to cancel a deed. . • . . Attention is next called to Terry:v. River Garden. Farms Company, •29 Cal. App. 59, 154 Pae. 476. That: is also a case for the resciSsion of a contract, and not fOr the cancellation of a deed. Attention is then called. to 27 . B. C: L.; page 794, § 14. In § 15 of the same 'volume is the following ::. " The -form of an aCtion is not material if the complaint in fact 'presents a -case involVing the . determination of the -title to realty. ' This has been expressly ruled in an instance where the action ostensibly was to enjoin threatened tres-. passes upon lands and to recover the value of minerals theretofore removed.'' Attention is called by petitioner-to Arkansas.Mineral Products - Company v. Creel; 181 Ark. 722, 27 S. W. (2d) -1003. The court :in that, case said :. ."We think the de-murrer, which raised the question of jurisdiction to grant the relief prayed, should have been sustained, for the reason that the aCtion is local and not transitory.''. The court- then quotes. § 1164 of Crawford . & Moses' Digest with reference to where cases of the kind must be brought. Attention is next, called to the- . case. of . e/pn . es ,. Mc:- Dowell& Co. v. Fletcher, 42- Ark. 422. The court .said. in that case ; in. speaking of:the statutes above .mentioned: "All Such actions, whether , by name fOreclosure, partition, ejectment or without 'any .special designation as to title, whether expressly. mentioned in the. statute , or, not, are local within the meaning of this section." . Petitioner -also calls . attention to the case . of ,Pickett v. Ferguson, 45 Ark. 177. That was a case . holding that a 'court of equity .had power to. restrain a party„within its jurisdiction from 'prosecuting an action in .another .State. Of courSe that action.was transitory. A number of -other authorities are . cited and quoted from by petitioner, but one . of the most recent is United States Fidelity &.Guaranty Company v. Bourland,„171 Ark. 1, 283. S. W. 13. . This was a petition for , writ of
. : CrRAYSON V. GARRATT, CHANCELLOR. prohibition to restrain the- chancery cdtirt of Sebastian County froth proCeeding in a certain cause, and the court said • "It . must be conceded, and as we- interpret the 'argument . of connsel for petitioner, it is conceded- that the chancery court of Sebastian County has jurisdiction of the subject-matter of the .action therein instituted, hich.wa§ one to cancel •a. deed executed by the . plaintiffs • therein ; to • certain• proPerty, including real estate situated in Pulaski County. It. is not an action for the recovery of. real ptoperty or for an injury to real property: kis not 'a local. action, but• is transitory and conld haVe been brought in any . county where jurisdiction, over the'persons of ;the defendants could have been obtained." • Petitioner . calls attention . to the ease McLeod v. Connecticut & P. R. ..Company; 58 Vt. 727, 6. Atl. 648. That:WaS'•a suit for. personal injury, and there was no question involved except whether a •suit .for personal in--jury vas a transitory action. The court discussed local arid transitory action; it is Arne, in a general way, but the only : question for: the-court to decide in that case was .whethet an action for. personal injnry •was transitory• or locaL :,• . • • In the •case • of Arkansas Mineral Products v. Creel, 181 Ark.. 722; '27, S. W. (2d) 1003, the court, in discUssing suits for specific performance or to establish a trust, or fOr a conveyanCe; although . the contract,- trust, 'or • frandulent -title • pertainS tO land in another State, Or 'country, 'said that the court bad jurisdiction; But the Court added : "But this -jurisdiction is- strictly limited to thoSe'eaSeS in Which thetelief decreed can be obtained thtoUgh the party's . personal obedience, and the decree in such suii iniposes a mere personal obligation enforceable 'hy. injunction, attachment, 'Or like process against The person,' and -cannot operate exroprio . vigore on lands 'in 'another jurisdiction to Create, transfer, or vest title:" ' This conrt -has passed on similar questions many times, but we du . not demi: neeessary to discuss all these authorities. 'This is a suit for . the purpose of cancelling . a deed, - restoring the 'property tO the plaintiff, 'and 'quieting the title' in him, and a -1So it is alleged that, if the' deed 'Should not . be. cancelled, it be held to be a
ARK . 53 mortgage and plaintiff be permitted to pay whatever amount he had received -from petitioner, and the deed be cancelled. Our conclusion is that the action is local, that the chancery court of Garland County has jurisdiction, •and the writ is therefore denied.
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.