{
  "id": 1652904,
  "name": "Temple, Administrator v. Smith, et al.",
  "name_abbreviation": "Temple v. Smith",
  "decision_date": "1953-12-21",
  "docket_number": "5-237",
  "first_page": "834",
  "last_page": "839",
  "citations": [
    {
      "type": "official",
      "cite": "222 Ark. 834"
    },
    {
      "type": "parallel",
      "cite": "262 S.W.2d 898"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
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    "simhash": "1:e6bd3c310b3f7023",
    "word_count": 1969
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  "last_updated": "2023-07-14T18:48:42.003901+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Temple, Administrator v. Smith, et al."
    ],
    "opinions": [
      {
        "text": "Ward, J.\nThis appeal calls on ns to decide whether the finding of the chancellor is supported by the weight of the testimony.\nEd McClain, a negro farmer, was found dead in a well on his place on February 26, 1952. On March 17, 1952, a deed was filed for record, shown to have been executed on February 7, 1952, purporting to be signed by the deceased, and conveying his farm to appellee, J. D. Smith. The deed provided that the deceased could live on the farm as long as he desired.\nOn July 15, 1952, suit was filed by the administrator of deceased\u2019s estate to cancel the said deed on the ground of forgery. The chancellor found that the testimony did not support the allegation of forgery and the administrator has appealed. The testimony for and against forgery is so evenly divided that it presents a close question as to which side preponderates, but, in accordance with the well recognized fact that the trial judge had an opportunity which we do not have to observe the witnesses and evaluate their credibility, we have chosen to affirm his decision.\nThe testimony was substantially as hereafter set out.\nFOE APPELLEE\nAppellee, Smith, stated in substance: I knew Ed McClain during his lifetime and bought some land from him about the 7th of February 1952 and received a deed which was acknowledged by W. E. Pope; McClain signed the deed with the understanding of what he was doing, and the certified copy of the recorded deed which is shown to me appears to be a true copy of the deed which I received but I have lost the original deed. On cross examination: I gave McClain $1,200 in cash which I had on my person; I have been trading since 1935 and can get $1,200 any time I get ready for it; I have been trading in land and timber and had some cash all along; I mortgaged the land for $800 because I wanted some more money; the deed has a 55 cent revenue stamp on it but I don\u2019t know exactly what the correct amount should have been and wasn\u2019t trying to beat the government out of $1.10; Sometimes I don\u2019t put any stamps on deeds when the consideration is not more than $10; The consideration shown in the deed is $10; I never told Mr. Vickers that I was in serious trouble, I don\u2019t say that he lied but I do say that he is old and may have forgotten. Mr. Linder the prosecuting attorney was asking me about who got McClain\u2019s money and asked me to give him the original deed, I told him I didn\u2019t have it and he told me to meet him at 1 o\u2019clock; I didn\u2019t give him the deed because it was at Vick and I didn\u2019t have time to go get it, he was trying to find out who killed McClain and threw him in the well but he didn\u2019t exactly leave the impression that I was under suspicion; I told him that I would go get the deed and bring it to him but I didn\u2019t because I went to Vick and got it and left it at Bill Pope\u2019s and then went down and estimated some timber on the old Harding place, I told my brother I had the deed and he and I went to Bill\u2019s house and got it and I called the prosecuting attorney and told him I would bring it over the next morning; He said to wait and that he would come and get it and I said all right; I put it in my pocket and the next morning I went down and estimated 230 acres for Hubert Savage and the prosecuting attorney was to meet me, and I went back to the hotel and had lunch and when I went to bring the deed over I felt in my pocket and it was gone; I just can\u2019t remember exactly the date on which the deed was made or the day it was recorded; At the time I mortgaged the property I had a few little hot checks out \u2014 -I remember one that was presented to me. Redirect examination : I have been engaged in buying and cruising timber for many years; There is a psychological effect in offering cash and sometimes I can drive a better bargain that way \u2014 some people don\u2019t like checks. Re-cross examination: I have bought several tracts of timber and paid as high as $2,500 cash.\nW. E. Pope, in substance, stated: I live at Warren and know John D. Smith and knew the deceased during his lifetime; I am a notary public for Bradley County; On or about February 7, 1952, I took an acknowledgment on a deed from Ed McClain to J. D. Smith covering the land in question at the front gate of McClain\u2019s house; I wrote the deed and I saw Ed McClain sign it and I saw the money pass between Smith and McClain; (examining the copy of the deed) The description is right but the clause giving McClain the right to live on the place at the bottom of the description doesn\u2019t seem right; I state positively that Ed McClain did sign this deed in my presence and I so acknowledged it. Cross examination: I believe the deed was dated February 5th and it was signed between 8 and 9 o\u2019clock in the morning in front of Ed McClain\u2019s house; Since the deed shows February 7th I imagine that is right; If a witness testified that he was with McClain all day February 7th and that McClain did not sign the deed they just don\u2019t know what they were talking about; I don\u2019t know how much money was passed it was in currency rolled up; I usually charge $5 for taking an acknowledgment but the best I remember Smith started to pay me and I asked him if he would go look at a tract of land as I was busy building my house and I didn\u2019t charge him; He did go look at the land; My wife teaches school and sometimes I take her in the morning about 7:30 \u2014 I don\u2019t know that I took her on the morning of the 7th but I could drive from there to McClain\u2019s house in 30 or 4-0 minutes; I drove down to Preston Phillips\u2019 house and left the car there and then walked on to McClain\u2019s about a quarter mile.\nGr. B. Colvin, Sr. testified: I am the circuit clerk and recorder and have held such office for 10 years; Sometimes people hold their deeds for several days or weeks before they bring them in to be recorded \u2014 the time varies; I have certified to the copy of the deed presented in evidence.\nFOR APPELLANT\nTestimony introduced by appellant to show that the deed in question was a forgery is in substance as follows: Several witnesses who live at Johnsville and who were well acquainted with the deceased testified that the deceased stated to them subsequent to February 7th that he had not sold his land or that he was not going to sell his land and gave as his reason that he would have no place to go. Some testified that deceased told them lie was going to fix up the fences on the place and plant a crop. Two witnesses testified that they went fox hunting with the deceased on the night of February 6th; that they returned about 2 o\u2019clock in the morning and that deceased stayed all night with one of them; and that the deceased did not return to his home until late in the afternoon of the 7th. One witness testified that he went to the deceased\u2019s home on the morning before his body was found in the well that night and that the mattress and part of the house was on fire. J. E. Vickers stated that appellee Smith told him soon after the deceased\u2019s body was found that some one had gotten him in serious trouble. The prosecuting attorney testified that while making an investigation of the deceased\u2019s death he asked appellee Smith to give him the original deed but that Smith failed or refused to do so, stating on one occasion that he would stand on his constitutional rights. No money was found on the deceased or at his home and the bank record showed that he had approximately $50 to his account.\nPreparatory to rendering the decree the chancellor made a detailed statement of the facts and the law pertaining to this case, and after carefully reviewing several authorities he came to the conclusion that the testimony \u25a0given by numerous witnesses to the effect that the deceased had said he had not and would not sell his property was not competent because it was not based on any positive proof of a forgery. We think it is unnecessary for us to consider this legal question. The chancellor also said, and we agree, that considering \u201cthe self-serving testimony objected to and the presumption by reason of failure to produce the deed and the failure to explain where defendant got the money he said he paid for the land, together with other evidence as to the activities of Ed McClain and the evidence of plaintiff\u2019s witnesses concerning places they had seen defendant Smith and W. E. Pope and statements they said defendant Smith and Pope made, this case on the part of plaintiff depends wholly upon circumstantial evidence and inconclusive presumptions or inferences. The burden is upon plaintiff in this case to prove the falsity of the execution and acknowledgment of the deed in question by a preponderance of the evidence.\u201d\nFrom our view of the evidence in this case some of the appellant\u2019s testimony is not necessarily damaging to appellee\u2019s claim. For example: There is much testimony that the deceased said he was going to continue to farm his land and that if he sold he would have no place to go, but the deed itself provided that the deceased should live on the land as long as he desired. Again it is reasonable to assume that some of appellant\u2019s witnesses might have been mistaken on very material points. For example: The witnesses who said they went hunting with the deceased and that the deceased was not at home at the time the deed was supposed to have been executed on February 7. It must be remembered that it was only after the deed was recorded on the 17th of the following month that any suspicion could have arisen which made the date of February 7 important, and it is possible that these witnesses could have been mistaken as to the date. It is true that Smith\u2019s failure to produce the original deed when called for and his explanation of how he lost the deed raised suspicions against his contention but, at most, they are only suspicions. On the other hand the testimony of Smith and Pope can not be attacked on the ground of mistake. In order to reverse this case it would have to be on the ground that both of these witnesses deliberately falsified their testimony. While of course this view is entirely possible yet it is significant that the character of neither of them has been impeached.\nAs heretofore stated we are unable to say that the chancellor\u2019s finding in favor of appellees on the close question of fact herein presented, particularly because of his better opportunity to observe the witnesses and appraise their veracity, is against the weight of the evidence.",
        "type": "majority",
        "author": "Ward, J."
      }
    ],
    "attorneys": [
      "Bridges & Young, for appellant.",
      "B. Ball and Carroll C. Eollensworth, for appellee."
    ],
    "corrections": "",
    "head_matter": "Temple, Administrator v. Smith, et al.\n5-237\n262 S. W. 2d 898\nOpinion delivered December 21, 1953.\nBridges & Young, for appellant.\nB. Ball and Carroll C. Eollensworth, for appellee."
  },
  "file_name": "0834-01",
  "first_page_order": 858,
  "last_page_order": 863
}