Opinion
Opinion delivered October 20, 1930.
1. TRUSTS — PAROL EVIDENCE. — Parol evidence is inadmissible to graft an express trust upon a deed express in its terms. 2. DEEDS — FAILURE OF CONSIDERATION. — The right of a grantor to cancel a deed for failure of an agreement to support him during life is personal to him, and cannot be enforced by his heirs. 3. INFANTS — AUTHORITY OF GUARDIAN AD LITEM. — A guardian ad litem for non-resident infant heirs could not consent to an erroneous decree charging such heirs with a lien for payment of contribution to one of the grantors who had advanced money for the support of their ancestor and grantor.
Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor; reversed.
D. L. Ford, for appellant.
Cravens Cravens and C. M. Wofford, for appellee.
STATEMENT OF FACTS
This appeal is by minors through their next friend from a decree of partition of certain lands after charging their interests in such lands with certain sums of money paid out by one of the owners of the land for the support of their father, the grantor in the conveyances to them all.
E. B. Petty and Mary Petty, his wife, conveyed by warranty deed to their children, Brilla Patton, John Petty, Fred Petty and Mary Eschelman, certain lands in Sebastian County, describing them, for a recited consideration of $700 on December 29, 1918. The same grantors on the 29th day of December, 1919, conveyed to the same grantees a lot in Fort Smith, describing it, for a consideration of $750. The grantees were the sole and only heirs at law of the said E. B. Petty. Mary Eschelman, his daughter, died prior to his death, leaving surviving her as her sole heirs the three minors, appellants herein. Petty, the grantor, died on the 13th day of February, 1929, leaving surviving him his heirs, the three grantees in the said warranty deeds and the three minors, of his deceased daughter, Mary Eschelman, also a grantee in said deeds.
Mrs. Brilla Patton brought the suit on September 6, 1929, claiming she had made certain contributions in money and services to her father, E. B. Petty, and asked that the other heirs be required to contribute to her their respective pro rata shares for expenses of caring for and supporting him during his lifetime, funeral expenses, etc., and that the interest of the other defendants be subjected to a lien in her favor for the amount due her for such expenditure. John Petty filed an answer and cross-complaint denying any contributions to their father made by their sister, Mrs. Brilla Patton, and alleged certain contributions and services to the father made by himself, and prayed a partition of the lands. At the time of the bringing of the suit the appellants, minors, were nonresidents of the State, and constructive service was had and a guardian ad litem was appointed to defend for them. Copies of the deeds were introduced in evidence showing the conveyances and reciting the considerations paid by the grantees.
The pleadings alleged the respective interests of the parties. The allegations of the complaint and cross complaint for partition of the lands set out that they were conveyed in consideration that the grantees would support and maintain the grantor for life, and, failing to do so, the money expended by Brilla Patton and others in taking care of the grantor was prayed to be made a charge against the others for their pro rata share thereof as contribution to be charged against their interest in the lands which were to be partitioned accordingly.
The guardian ad litem denied all the allegations of the complaint, and that the lands should be partitioned or were susceptible of division.
The court entered a decree on the 28th day of January, 1930, apparent by consent, it being "O.K.'d" by the attorneys of the parties, J. Clib Barton acting for the minor appellants.
The decree recites that the minors had been duly constructively served, designated the interests of the parties in the lands, describing them; found that the minors were the children and sole surviving heirs of Mary L. Eschelman and owners as such of an undivided interest in all the property described, except what their mother had conveyed to Fred Petty during her lifetime; and that Brilla Patton and others had contributed to the support of their father, the grantor in the warranty deeds in the lands described, after it had been conveyed by their father, E. B. Petty, to them by deed of December 29, 1919, share and share alike to the four children named in the deed "with the understanding that his said children should maintain and support him during his natural life," and that the grantees entered into possession of the property described and thereafter held same as tenants in common. It further found that the contribution to the support of E. B. Petty during his lifetime made by appellees. Brilla Patton and John Petty, would be considered in making the partition of the property which it held susceptible of division. It then recited the agreement of the parties for the division of the lands accordingly, describing the portions to be divided and distributed to each. The court thereupon made a decree in accordance with the division, vesting title in each of the parties according to the finding and divesting the interest of the minors out of each of the parcels of land set apart to the other heirs and vesting title in them to one 40-acre tract, the northeast quarter southeast quarter, section 22, township 7 north, range 32 west, naming the three minor heirs jointly as tenants in common and divesting the title and interest of all the others not of said tract. Costs were adjudged, and a copy of the decree ordered recorded in both the districts of Sebastian County "as a conveyance of the properties therein described and as therein set out," and from this decree the minors bring this appeal by their next friend, Dr. T. E. Jeffery.
(after stating the facts). The conveyances of the lands from the grantor, E. B. Petty, to his children were ordinary warranty deeds reciting a certain consideration paid with no indication of any other consideration to be paid or the grant of the lands upon condition, making no mention of any trust or security for the payment of any further sum or the performance of any service to the grantor by the grantees. "An express trust cannot be proved by parol evidence, and neither will such evidence be heard to graft an express trust upon a deed absolute in its terms." Fenter v. First National Bank of Malvern, ante p. 89.
The conveyances were not voluntary conveyances without consideration, nor was there any attempt to set them aside as in fraud of creditors. If the consideration for the deeds was an undertaking on the part of the grantees to support and maintain the grantor, their father, for the remainder of his life and there was a failure on their part to comply with the undertaking, the grantor himself could have sued at law for the amount of the consideration after it became due, or treated the contract as void and brought suit in equity to cancel and set it aside for failure of consideration. If the conveyances had been made on such conditions, he or his heirs upon the condition broken could have set it aside. The grantor did not find it necessary, however, to convey the property upon condition and the right to cancel for failure of consideration because of maintenance not being furnished in accordance with the agreement, if there was such an agreement, was personal to him. Priest v. Murphy, 163 Ark. 465, 149 S.W. 98.
The guardian ad litem could not consent to the erroneous decree charging against the lands belonging to them or their interest therein a lien for payment of contribution to one of the grantees who had advanced money for the support of their father, the grantor of them all.
The decree is accordingly reversed, in so far as the rights of the minor appellants and their interest in the lands is concerned, and the cause remanded with directions to enter a decree of partition setting aside their interest in the lands to them without regard to and free of any claim for contribution from them to Mrs. Brilla Patton and John Petty for money advanced or services rendered to the said grantor in his lifetime.