{ "id": 8725653, "name": "Eakin v. Cities Service Oil Co.", "name_abbreviation": "Eakin v. Cities Service Oil Co.", "decision_date": "1958-03-31", "docket_number": "5-1515", "first_page": "979", "last_page": "982", "citations": [ { "type": "official", "cite": "228 Ark. 979" }, { "type": "parallel", "cite": "311 S.W.2d 530" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "224 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/224/0614-01" ] }, { "cite": "198 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459823 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0025-01" ] }, { "cite": "291 S. W. 802", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "173 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717955 ], "opinion_index": 0, "case_paths": [ "/ark/173/0001-01" ] }, { "cite": "1 S. W. 2d 59", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "175 Ark. 641", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403442 ], "opinion_index": 0, "case_paths": [ "/ark/175/0641-01" ] } ], "analysis": { "cardinality": 359, "char_count": 5348, "ocr_confidence": 0.505, "pagerank": { "raw": 7.409020608494133e-08, "percentile": 0.4431897380889774 }, "sha256": "185505b9753f6d4b5dc952c8fb598ff8ba60ef6961a2e20eecb7fe932ff2ca37", "simhash": "1:07a1b3917bebed3f", "word_count": 952 }, "last_updated": "2023-07-14T20:19:24.371217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Eakin v. Cities Service Oil Co." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nThe question is: Can a grantee maintain an action to cancel, as a cloud on Ms title, a forged mineral deed purportedly obtained from his grantor1? This question is presented on a demurrer to the grantee\u2019s complaint.\nAppellant, Homer Ealdn, received a deed to 40 acres of land from his father and mother (A. J. and Laura Ealdn) February 20, 1933. At that time there was of record a mineral deed purportedly executed by appellant\u2019s parents purporting to convey an interest to one H. Y. Foster, which mineral deed, by mesne conveyances, was transferred to appellee, Cities Service Oil Company.\nOn May 15, 1957 appellant filed a complaint (and later an amendment) in which it was alleged, among other things, \u201cthat the said mineral deed from A. J. Ealdn and Laura Ealdn, his wife, to H. Y. Foster, defendant, is a forgery and does not contain the true signature of the said A. J. Ealdn or Laura Ealdn.\u201d There were, in the alternative, numerous allegations to the effect that the signatures of Mr. and Mrs. Eakin were secured to the mineral deed by trickery and fraud. The prayer was \u201cthat said mineral deed be cancelled, set aside and held for naught and the assignment thereof be removed as a cloud upon his title to said lands.\u201d To the above complaint appellee entered a demurrer which was sustained by the court, and appellant has appealed.\nWe have concluded that the allegations that the mineral deed was a forgery stated a cause of action which appellant had a right to assert, and that, therefore, the court erred in sustaining appellee\u2019s demurrer. If the mineral deed was a forgery it was a nullity and appellant, as the owner of the land, could maintain an action in Chancery Court to remove it as a cloud on his title. In 9 Am. Jur. page 361, Cancellation of Instruments, \u00a7 13 states: \u201c. . ., it is generally held that an action will lie for the cancellation of a forged instrument, notwithstanding any remedy which the complainant has at law.\u201d A similar statement is found in 12 C. J. S. page 955, Cancellation of Instruments, \u00a7 20. In Rail v. Mitchell, 175 Ark. 641 (at page 643), 1 S. W. 2d 59, it is said: \u201cNo one can claim that an estate in land can be divested by forgery, and every one must be subject to the risk of forgery by officers authorized to take acknowledgments.\u201d\nWe do not agree with appellee\u2019s contention that the right to cancel the mineral deed on the grounds of forgery conld not be exercised by appellant in this case. Volume 9 of Am. Jur. at page 356 under the subhead \u201cWho May Bring Suit\u201d we find this statement: \u201cRelief by way of cancellation of an instrument is not necessarily confined to a party to the instrument; after the death of the party entitled to a decree of cancellation the right may be enforced by his heirs or personal representatives, and in proper cases relief may be obtained by a stranger to the transaction, if his legal or equitable rights are affected thereby.\u201d Here, there can be no question about appellant\u2019s rights being affected.\nAppellee states that appellant abandoned his allegation of forgery when he filed an amendment to his original complaint, but, after an examination of the language used in the amendment, we are unable to agree.\nPrior to the time the court sustained appellee\u2019s demurrer, from which came this appeal, the court had rendered a decree in favor of appellant on warning order service, which decree was set aide two weeks later on appellee\u2019s motion. Appellant makes the contention here that the court erred in setting the decree aside because appellee did not follow the proper procedure. We find no merit in this contention for the reason that the term of court had not elapsed. This being true the court had a right to set the decree aside even on its own initiative.\nAnother question arises which gives us much concern. Since appellant\u2019s complaint also contained allegations to the effect that A. J. and Laura Eakin were induced by trickery and fraud to execute the mineral deed, and since it is very likely there will be a trial on the merits upon remand, we foresee that appellee may challenge appellant\u2019s right to proceed on that ground. So, to avoid unnecessary litigation, we consider that question also.\nSince this question is presented to us on demurrer, thus by-passing numerous defenses that might be offered at a trial, we likewise conclude that appellant has a right to prosecute his action to set aside the mineral deed on the ground of fraud. We have held that such a right of action passes to the grantor\u2019s heirs. See: Phillips v. Phillips, 173 Ark. 1, 291 S. W. 802; Richey v. Crabtree, 198 Ark. 25, 127 S. W. 2d 269, and; Cannon v. Owens, 224 Ark. 614, 275 S. W. 2d 445. While we find no allegation in the complaint here that appellant is an heir o\u00ed A. J. Eakin, yet we do find from the record that he is a son. We recognize that this feature of the case is not reached by demurrer, but it does assure the likelihood of the question being presented if and when there is a trial on the merits. By what we have said in this connection we do not pass on what appellant\u2019s right might have been had he not been an heir.\nReversed.", "type": "majority", "author": "Paul Ward, Associate Justice." } ], "attorneys": [ "J. Kenton Cochran, for appellant.", "R. 0. Mason, Bartlesville, Okla., and J. M. Small-wood, for appellee." ], "corrections": "", "head_matter": "Eakin v. Cities Service Oil Co.\n5-1515\n311 S. W. 2d 530\nOpinion delivered March 31, 1958.\nJ. Kenton Cochran, for appellant.\nR. 0. Mason, Bartlesville, Okla., and J. M. Small-wood, for appellee." }, "file_name": "0979-01", "first_page_order": 1005, "last_page_order": 1008 }