{ "id": 1609073, "name": "Sandefer v. Sandefer", "name_abbreviation": "Sandefer v. Sandefer", "decision_date": "1952-02-04", "docket_number": "4-9683", "first_page": "943", "last_page": "948", "citations": [ { "type": "official", "cite": "219 Ark. 943" }, { "type": "parallel", "cite": "245 S.W.2d 568" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "93 S. W. 555", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "78 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497260 ], "opinion_index": 0, "case_paths": [ "/ark/78/0111-01" ] }, { "cite": "41 S. W. 854", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "64 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907348 ], "opinion_index": 0, "case_paths": [ "/ark/64/0155-01" ] }, { "cite": "2 S. W. 659", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "48 Ark. 169", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887789 ], "opinion_index": 0, "case_paths": [ "/ark/48/0169-01" ] }, { "cite": "45 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892028 ], "opinion_index": 0, "case_paths": [ "/ark/45/0481-01" ] }, { "cite": "45 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892016 ], "opinion_index": 0, "case_paths": [ "/ark/45/0472-01" ] }, { "cite": "44 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893394 ], "opinion_index": 0, "case_paths": [ "/ark/44/0365-01" ] }, { "cite": "39 Ark. 39", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "11 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727443 ], "opinion_index": 0, "case_paths": [ "/ark/11/0082-01" ] }, { "cite": "88 S. W. 573", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "75 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502557 ], "opinion_index": 0, "case_paths": [ "/ark/75/0446-01" ] }, { "cite": "199 Ark. 1019", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456664 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/1019-01" ] }, { "cite": "217 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722661 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0596-01" ] } ], "analysis": { "cardinality": 535, "char_count": 9031, "ocr_confidence": 0.499, "pagerank": { "raw": 1.0873401050065135e-07, "percentile": 0.5641823133317811 }, "sha256": "073df566c8bcc05173c478ae123010a355096684a7d10daba7aa4501288a5f5b", "simhash": "1:27de6993ab1d4b0b", "word_count": 1575 }, "last_updated": "2023-07-14T20:52:55.172495+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sandefer v. Sandefer." ], "opinions": [ { "text": "Holt, J.\nAppellee is the widow of J. W. Sandefer, who died August 1, 1950, and appellant was his brother. Mrs. Sandefer brought this action against appellant to cancel and set aside a deed to sixty acres of land in Sevier County. She alleged, in effect, that she purchased the property (consisting of a twenty acre tract and a forty acre tract) December 6, 1943, that appellant, a few days after her husband\u2019s death \u201ctold her he wanted to malee a deal with her for a part of her lands, the 37% acre tract and the 2% acre tract. At that time and continuously since that time plaintiff has been very nervous, is in poor health and practically helpless and the defendant was well aware of these facts. But despite this, the defendant falsely and fraudulently represented to the plaintiff that if she would deed him the forty acres desci\u2019ibed herein, he would pay her ten dollars cash per acre for said lands and would pay all her living expenses for the remainder of her lifetime and pay her burial expenses when she died;\u201d that by fraud, misrepresentations and undue influence, she was induced to execute the deed in question which she later learned called for sixty acres instead of forty acres as she thought. She further alleged that appellant refused to carry out Ms agreement with her and prayed that the deed be cancelled and title to the sixty acres quieted in her.\nAppellant answered with a general denial and \u201cfurther alleged that in October, 1943, J. W. Sandefer and appellant entered into an oral agreement whereby appellant would furnish the purchase price of certain lands and farm animals and J. W. agreed to' hold same in the \u2022name of, and for the use of, appellant; appellant actually furnished $1,000 pursuant to said agreement; J. W. furnished $300 of his own money and purchased the lands described in the complaint; 9 head of cattle and 4 horses went with the lands; J. W. fraudulently and falsely required the lands to be conveyed as an attempted estate by the entirety, \u2019 \u2019 that J. W. Sandefer\u2019s actions gave rise to a resulting trust in appellant\u2019s favor and prayed that appellee\u2019s complaint be dismissed and title quieted in him, or in the alternative, that he have judgment for damages and betterments.\nTrial resulted in a decree for appellee, which contained this recital: \u201cThere was never any agreement or contract as to the twenty acre tract * * * that tract was included in said deed through the unlawful design of the defendant and for the fraudulent purpose of obtaining title to all of the lands from plaintiff without consideration. That the defendant was guilty of fraud and misrepresentation in obtaining the deed for the lands or for any part thereof, and the court finds that he has paid to plaintiff no consideration, and intends paying-nothing for said land, and now repudiates the contract so made and entered into with plaintiff in so far as the payment for said land is concerned.\n\u201cThe court further finds that the deed should be cancelled and held for naught for lack of consideration paid and because of fraud practiced by defendant on the plaintiff in the obtaining of said deed. \u2019 \u2019\nThis appeal followed.\n-(!)-\nAppellant first strenuously contends that appellee has failed to sustain the burden imposed on her to show by clear, cogent and convincing- evidence that fraud or undue influence was used by appellant in procuring the deed in question from her. We cannot agree.\nMost of the testimony appears to be in irreconcilable conflict. On behalf of appellee, it was shown that in early 1943, she and her husband went to Port Arthur, Texas, where he worked in a munition plant and earned approximately $2,400 before they returned to Sevier County in October, 1943, that while in Port Arthur, appellee also earned $7.00 per week. It is undisputed that they deposited $1,900 in a bank in Horatio immediately following their return and gave a check on this account for $1,300 for the purchase price of certain livestock and the sixty acre farm here involved. Appellant was not known in this transaction and Mr. Brinkley, who sold the land to appellee, did not know appellant. Appellee further testified that none of appellant\u2019s money went into the purchase or was sent to them for any purpose, that there had been no correspondence between appellant and her husband during the twenty years prior to appellant\u2019s return to Sevier County from California in 1948, about five years after the purchase of the tract of land, that appellant made no claim of any interest in the property until shortly after her husband\u2019s death, August 1, 1950. She further testified that after her husband\u2019s death appellant came to see her and offered to buy forty acres of the property for $10 an acre and in addition provide her a home and living expenses as long as she lived, that she signed the deed, went home, and later asked appellant for the purchase money and he refused to pay her anything and said to her \u201cto hell with you, I ain\u2019t going to give you nothing. \u2019 \u2019 He never furnished groceries, or living expenses.\nWitness, Griffin, testified that about three weeks after J. W. Sandefer died, appellant told him that \u201che was hardly able to but thought he would buy it (the property from the widow, appellee) if he could make the arrangements, \u2019 \u2019 and that appellant made no claim to any interest in the land.\nAppellant testified that he sent a check for $1,000 to his brother in Port Arthur with the understanding and agreement that J. W. Sandefer was to purchase a farm in the name of, and for the use of, appellant. Appellant did not produce the cancelled check for $1,000, or any record or evidence from the California bank to show that any charge had been made against his account in this amount, nor did he produce any letter or correspondence from his brother during his twenty years\u2019 absence from Arkansas. Appellant admitted that he had not seen his brother or appellee for twenty years until he came to Arkansas in 1948, five years after the land in question was purchased and deed delivered to appellee. His excuse was that the check and all correspondence had been lost in a fire. It further appears that he made no inquiry whatever at any time after he claimed to have sent the check to his brother, about any farm purchase, or as to expense, upkeep, taxes, etc., that might have accrued.\nThere was testimony for appellant, of a corroborative nature, that his brother admitted in the presence of a \u201cwelfare woman\u201d that appellant had an interest in the property and witness, Sam Barrick, testified that he was present when J. W. Sandefer was talking to the \u201cwelfare woman\u201d and \u201cheard J. W. Sandefer admit that appellant had $1,000 in the place.\u201d\nThere was other evidence tending to corroborate appellee\u2019s testimony, but we do not attempt to summarize more. It suffices to say that when al] of the testimony is considered, we are unable to say that it does not support the Chancellor\u2019s finding that appellee had met the burden imposed on her and the test required.\nAs we said in the recent case of Gerlach v. Cooper, 217 Ark. 596, 232 S. W. 2d 458, \u201cthe test in an effort to set aside a deed for fraud in its execution is whether there is \u2018a preponderance of the evidence which is clear and convincing.\u2019 \u201d\n-(2)-\nWhat we have said above applies with equal force to appellant\u2019s contention that a resulting trust arose from J. W. Sandefer\u2019s actions. To support this claim, the evidence also must be clear, cogent and convincing.\nIn Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929, we said: \u201cThe general rule, as well as the established rule in this state, seems to be well settled that in order for one to establish by parol either a resulting or constructive trust, the evidence must be \u2018full, clear and convincing,\u2019 \u2018full, clear and conclusive,\u2019 \u2018of so positive a character as to leave no doubt of the fact,\u2019 and \u2018of such clearness and certainty of purpose as to leave no well founded doubt upon the subject.\u2019 These requirements run through a long line of cases from this court.\u201d Tillar v. Henry, 75 Ark. 446, 88 S. W. 573; Crittenden v. Woodruff, 11 Ark. 82; Trapnall\u2019s Administratrix v. Brown, 39 Ark. 39; Johnson v. Richardson, 44 Ark. 365; Richardson v. Taylor, 45 Ark. 472; Robinson v. Robinson, 45 Ark. 481; Crow v. Watkins, 48 Ark. 169, 2 S. W. 659; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; 1 Perry on Trusts, \u00a7 137.\nWe think appellant has failed to meet the burden imposed.\n-(3)-\nOn the record presented, appellant was not entitled to damages or betterments for the reason that his alleged purchase from appellee was fraudulent and in bad faith as the trial court found.\nWe said in Reeder v. Meredith, 78 Ark. 111, 93 S. W. 555: \u201cIf appellant\u2019s purchase was in bad faith, as the court\u2019s findings show and the proof warrants, he would not be entitled to any compensation for improvements.\u201d\nAccordingly, the decree is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "Collins, Garner S Collins, for appellant.", "Gordon B. Carlton, for appellee." ], "corrections": "", "head_matter": "Sandefer v. Sandefer.\n4-9683\n245 S. W. 2d 568\nOpinion delivered February 4, 1952.\nCollins, Garner S Collins, for appellant.\nGordon B. Carlton, for appellee." }, "file_name": "0943-01", "first_page_order": 967, "last_page_order": 972 }