{ "id": 1612011, "name": "Newberry v. Newberry", "name_abbreviation": "Newberry v. Newberry", "decision_date": "1951-03-19", "docket_number": "4-9417", "first_page": "548", "last_page": "551", "citations": [ { "type": "official", "cite": "218 Ark. 548" }, { "type": "parallel", "cite": "237 S.W.2d 477" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "246 S. W. 499", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358482 ], "opinion_index": 0, "case_paths": [ "/ark/156/0403-01" ] }, { "cite": "207 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481752 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0551-01" ] }, { "cite": "206 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485013 ], "weight": 2, "pin_cites": [ { "page": "p. 27" } ], "opinion_index": 0, "case_paths": [ "/ark/206/0024-01" ] } ], "analysis": { "cardinality": 364, "char_count": 5635, "ocr_confidence": 0.509, "pagerank": { "raw": 6.263440174314247e-08, "percentile": 0.38645477014296975 }, "sha256": "4087ec64252a57b3189fba2e774727b69c71453ad6dec3e0f2d0dc18bb59853e", "simhash": "1:306f0d829e2251de", "word_count": 1000 }, "last_updated": "2023-07-14T15:20:49.049805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Newberry v. Newberry." ], "opinions": [ { "text": "G-rieein Smith, Chief Justice.\nAugust 26,1949, John F. Newberry executed and delivered to his son, Woodrow, a deed to 183.19 acres. The complaint resulting in this appeal was filed by another son, Burle, hut the decree was based on a separate action by Woodrow asking that his title be quieted.\nIn 1915 Alexander Newberry, for a recited consideration of $100, sold to his son, John F. Newberry, four acres. It is a part of sixteen and a fifth acres claimed by Burk, who says that his father, John F. Newberry, held the property in trust and had fraudulently disposed of it when the August, 1949, deed was delivered. In the alternative Burk, in his original pleading, asked that he have judgment for $900 with interest from December 13, 1924, to compensate the 46.62 acres he purchased from his grandfather on that date.\nIncluded in the 46.62 acres were the 16.20 acres Burk says were to he held in trust, but in particularizing he asserted that \u201cfour of this were deeded by me to John F. Newberry prior to this [time].\u201d\nA. A. Newberry \u2014 Burk and Woodrow\u2019s brother\u2014 intervened, but it is conceded that Burk and Woodrow are the interested parties.\nWhether Burk deeded four acres to his father (as he asserted in his complaint of October 12, 1949) appears doubtful. The deed from Alexander Newberry to John F. is in the record. Some of the witnesses spoke of the remaining land as twelve acres, plus a fraction.\nIn a deposition from which the Chancellor could have found that the witness had a clear understanding of his business affairs and a comprehensive grasp of his relationship to the contending parties, John F. Newberry (then between 73 and 74 years of age) testified that in 1924 he and Burk \u201cgot in a swap about some lands.\u201d John F. had previously acquired 46 acres and Burk was buying the Alexander Newberry home place,, containing 140 acres. It is conceded that Burk paid for this land; but, said John F., Burk wanted the 46 acres I had and I wanted [the particular 12 and a fraction acres], so it was agreed that the exchange should be made, \u201cjust like swapping horses. \u201d\nResponsive to this agreement Alexander Newberry executed to John F. his deed to 16.20 acres, dated December 1, 1924. John F.\u2019s deed to the 46 acres is not in the record, but Burk testified that he took this property. He was asked: \u201cWhat did you give your father for the 46 and a fraction acres he deeded to you?\u201d A. \u201cWe divided the land.\u201d Q. \u201cIn other words, you took the 46 acres from him and he took the 16 acres from your grandfather \u2014 is that what you are trying to tell the court?\u201d A. \u201cYes, sir.\u201d Q. \u201cI believe you stated that your father had also purchased from your grandfather four and a fraction acres prior to this time: is that correct?\u201d A. \u201cAbsolutely.\u201d Burk then stated that he did not think the smaller tract was included in the 16.20 acres.\nOn redirect examination Burk testified it was his understanding that the 46 acres were given to bim for the use of the 16.20. A little later he said that the deed from his father had absolutely nothing to do with the return of the 16.20 acres.\nThere was testimony pro and con regarding Burk\u2019s contention that his father promised to surrender the acreage when he was through with it. Indeed, it might be said that a preponderance of the evidence supports Burk\u2019s insistence that his father, from time to time, had either expressed an intention to give him the land, or to \u201cmake things right with him,\u201d thereby establishing in Burk\u2019s mind a conviction that he would eventually become the beneficiary.\nA brother-in-law of Woodrow and Burk testified that he had lent money to his father-in-law and that the land was mortgaged to secure this debt, an obligation since paid. One of John F. \u2019s daughters testified she had heard Burk say that he and his father swapped lands, \u201cand I did not at any time hear Burk claim he was to get the twelve acres when Father was through with.it \u2014 not until Dad went to fix up his business [by deeding the property] to Woodrow.\u201d Another daughter was at home \u201cwhen they traded\u201d and did not hear anything except that the lands had been exchanged. In mentioning the actual transaction another witness (Earl Sims, John F.\u2019s son-in-law) testified: \u201cBurk told me he had swapped lands \u2014 had exchanged the bottom below the barn for the other land down there. Burk built a home on the 46 acres and had been living there.\u201d\nThe Chancellor found that John F. Newberry was mentally competent when he executed and delivered the deed of August 26, 1949, that he was not coerced in the sense that the transaction was not his voluntary act, and that when Burk allowed his grandfather to convey 16.20 acres directly to John F. there was an unconditional exchange between father and son whereby Burk took from the 140 acres the tract deeded to John F. and used it to acquire 46 acres his father then owned. Oral testimony is competent to show that the actual consideration for realty is different from the recited consideration, or that it has not been paid. Sewell v. Harkey, 206 Ark. 24, at p. 27, 174 S. W. 2d 113. A resulting trust may be shown by parol testimony, but the evidence must be clear, cogent, and convincing. Harbour v. Harbour, 207 Ark. 551, 181 S. W. 2d 805. Expressed differently, the evidence must be \u201cclear, satisfactory, and convincing,\u201d Murchison v. Murchison, 156 Ark. 403, 246 S. W. 499. But the requirement is not that the testimony be undisputed.\nTested by these rules there is no basis for overturning the decree.\nAffirmed.", "type": "majority", "author": "G-rieein Smith, Chief Justice." } ], "attorneys": [ "W. J. Cotton, for appellant.", "Merle Shouse, for appellee." ], "corrections": "", "head_matter": "Newberry v. Newberry.\n4-9417\n237 S. W. 2d 477\nOpinion delivered March 19, 1951.\nW. J. Cotton, for appellant.\nMerle Shouse, for appellee." }, "file_name": "0548-01", "first_page_order": 572, "last_page_order": 575 }