The opinion of the court was delivered by: John E. Miller, District Judge.
This is a suit for specific performance of a contract
whereby the defendant, J.E. Felker, agreed to convey and cause
to, be conveyed certain real and personal property to the
plaintiff upon the payment of a specified sum of money. From
the various answers it appears that the defendants, W.B.
Felker, Warren Felker, Florence Felker and Kate Morris, claim
no interest in said property, and that it is owned by
defendant, J.E. Felker; that defendant, J.E. Felker is willing
to convey his interest in the property to the plaintiff in
accordance with the contract, but that his wife, Grace Felker,
refuses to relinquish her dower interest in the real property.
Thus, the pleadings raise the question of the extent of the
dower interest of defendant, Grace Felker, and the amount of
abatement which should be made from the contract price to
cover her interest.
The case came on for trial to the court on May 8, 1951. At
the trial the attorneys for the defendants advised that the
defendant, W.F. Felker, had died April 16, 1951; that
defendant, J.E. Felker, had been appointed executor of his
last will and testament; and that J.E. Felker, as executor,
entered his appearance as a party defendant. Also, upon being
advised that the defendant, J.E. Felker, was not present to
testify, the court, after stating that it had received certain
statements from physicians pertaining to the physical
condition of said defendant, advised that the deposition of
defendant, J.E. Felker, previously taken in anticipation of
such an eventuality, would be admitted in evidence. Upon the
completion of the presentation of the evidence, the case was
submitted and taken under advisement and the court requested
the attorneys for the respective parties to submit proposed
findings of fact and conclusions of law, as well as
supplemental briefs on points not covered in the pretrial
briefs previously submitted by the attorneys. Said proposed
findings, conclusions and briefs have now been received, and
after having duly considered the testimony, exhibits thereto,
the written stipulation and other stipulations entered into
during the trial and all the briefs, the court makes and files
the following findings of fact and conclusions of law,
Plaintiff, B.H. Fletcher, is and at the time this case was
commenced was a citizen and resident of the State of Colorado.
Defendants, J.E. Felker, Grace Felker, J.E. Felker, as
Executor of the Estate of W.B. Felker, Warren Felker and
Florence Felker, are and at the time this case was commenced
were citizens and residents of the State of Arkansas.
Defendant, Kate Morris, is and at the time this case was
commenced was a citizen and resident of the State of
The amount in controversy herein exceeds the sum of
$3,000.00, exclusive of interest and costs.
Around 1919 said defendant decided to go into the farming
and livestock business and began to acquire land for that
purpose. He testified that it was his desire to acquire a
large tract of land in one valley of the White River, and due
to the resentment against him caused by the various business
failures mentioned above and the belief that if it became
known that he was attempting to acquire a solid block of land
in that area the price would be increased, he decided to take
title to the various purchases in the names of his brothers
and sister. Accordingly, from 1919 until 1923 or 1924 he
purchased various tracts of land in the name of his sister,
Mrs. Kate Morris, and his brother, W.B. Felker. Record title
was taken in their names and so remained as of May 1, 1950. In
1935 and 1937 he purchased some land in his own name and in
1940 he purchased an additional tract of land in the name of
his brother, Warren Felker. In all he purchased some 1700
acres of land, of which approximately 600 acres was cleared
land available for farming or pasture, and the remainder was
very rough, hilly land, suitable only for the growing of
timber and grazing. In the case of all such purchases, he
furnished the entire purchase price for the land, and after
the purchase exercised full and complete control over the use
of the land and paid all taxes thereon. He developed the land
and gave it the name of "Birchwood Run Farms," and improved
the same by building fences, a house, some barns, a silo,
machinery sheds and other general improvements, and developed
a herd of registered Hereford cattle. His brother, W.B.
Felker, resided in the house on the farm until his death in
April, 1951, but J.E. Felker at all times maintained actual
control or the right to control the operation of the farm.
Around March 1, 1950, the plaintiff with a real estate man
by the name of Harris talked to the defendant, Warren R.
Felker, about the plaintiff purchasing the Birchwood Run
Farms, including all equipment and livestock. Warren called
J.E. Felker, who was in Little Rock at the time, and advised
him of plaintiff's desire to make the purchase. J.E. Felker
set the purchase price at $100,000.00 and told Warren R.
Felker to enter into a contract for that amount if the
plaintiff was interested. This was done. The contract was
dated March 1, 1950, and signed by the plaintiff and J.E.
Felker by Warren R. Felker. It was not introduced, but the
evidence does reveal that it called for a purchase price of
$100,000.00 and plaintiff made a deposit of $10,000.00. Also,
apparently the transaction involved some lots in Lamar,
Colorado. Between that date and May 1, 1950, the plaintiff and
defendant, J.E. Felker, discussed the various terms of that
contract but at no time did the plaintiff release the
defendant Felker from the general and main obligation to sell
the property to him for the sum of $100,000.00, and on May 1,
1950, it was decided to cancel the March 1, 1950, contract and
substitute in lieu thereof a new one for the sale of the real
and personal property listed therein.
At that time Mr. E.M. Arnold, the attorney of record for the
defendants, was present, and as the result of the discussions
between the defendant, J.E. Felker, and the plaintiff, the
contract of May 1, 1950, was written by Mr. Arnold. The
plaintiff did not know that it was necessary for the wife of
any owner to sign the contract of sale. Neither the defendant,
J.E. Felker, nor his attorney, Mr. Arnold, discussed that
matter with him, but the evidence discloses that at that
particular time the defendant, J.E. Felker, anticipated that
his wife would agree to the sale and would join him in the
execution of the necessary conveyances, and it was clearly an
oversight on the part of the attorney, Mr. Arnold,
in not requiring the signature of the defendant, Grace Felker,
to the contract, for which he is not subject to criticism.
There isn't any doubt but that he thought at that time that
the contract would be performed by the defendant, J.E. Felker,
in the manner as provided therein, and it was the intention of
the defendant, J.E. Felker, to perform and to convey or cause
to be conveyed all of the land to the plaintiff in accordance
with the terms of the contract. The plaintiff was so convinced
of the sincerity of the defendant, J.E. Felker, that he paid
an additional $10,000.00 at that time making a total payment
of $20,000.00, and leaving a balance due under the terms of
the contract of $80,000.00.
There is no doubt but that the plaintiff assumed that the
various parties in whom the record title to the land was
vested would execute conveyances. He had no knowledge of the
power of attorney from W.B. Felker to J.E. Felker, but did
know of the power of attorney from Mrs. Kate Morris to J.E.
Felker and there is nothing to indicate that he did not expect
all of the defendants to execute conveyances to any tracts of
land of which the record title was vested in them but he
relied upon J.E. Felker, regardless of the record condition of
the title, and was not interested in the procedure that he
would follow to furnish the title. It was agreed that the
defendant, J.E. Felker, would remain in control of the farm as
the agent of the plaintiff until the deeds were executed and
delivered under the terms of the contract or the agency was
terminated and that the plaintiff would reimburse him for all
expenses incurred during such period. It was also agreed that
J.E. Felker would hold and conduct an auction sale of the
Hereford cattle and that the proceeds of the sale would be
applied to the balance of the purchase price. The auction sale
was held on June 12, 1950, and the net proceeds of the sale
amounted to $53,121.41.
The parties by written stipulation specifically described
the various tracts of land, and named the owners of each
tract, as shown by the records in the office of the Recorder
of Deeds for Benton County, Arkansas, on May 1, 1950, and
covered by the contract.
The stipulation discloses that J.E. Felker owned
approximately 400 acres; W.B. Felker owned approximately 1097
acres; Warren R. Felker owned approximately 69 acres; and Mrs.
Kate Morris owned approximately 400 acres, making in all
approximately 1966, but the land described in the contract
would indicate approximately 1800 acres. However, there is no
dispute between the parties as to the actual land involved,
although it would be necessary to survey the various tracts to
determine the exact amount of acres.
It is not necessary to set out in full the stipulation or
legal description of the various tracts to which the various
defendants held record title, and the above will suffice to
show the condition of the record title on May 1, 1950.
On May 1, 1950, defendant J.E. Felker was the grantee of
unrevoked general powers of attorney from defendants Kate
Morris and W.B. Felker authorizing J.E. Felker to sell and
convey lands owned by the said Mrs. Kate Morris and W.B.
Felker and to make all contracts, deeds or other instruments
necessary to do so.
Sometime after the first contract dated March 1, 1950, was
executed the defendant, J.E. Felker, requested Warren R.
Felker and wife, Florence Felker, Mrs. Kate Morris, and W.B.
Felker, to sign individual deeds containing a description of
the property, the record title of which was in their names.
These parties signed individual deeds, which were dated April
25, 1951, but the testimony does not show when the deeds were
signed, and the name of the grantee was not inserted in any
one of the deeds until the date of the acknowledgement on June
Title to the various tracts was examined by the present
attorneys for the plaintiff, but at that time the attorneys
did not know for whom they were examining the same, having
been employed for that purpose by the real estate agent. They
required certain defects to be corrected. Thereafter title to
the Northwest Quarter of the Northeast Quarter, Section 13,
Township 19 North, Range 29 West was quieted in W.B. Felker by
decree of the Benton County Chancery Court on May 18, 1950,
and as to another tract J.E. Felker gave a release deed to
W.B. Felker and placed same of record to satisfy a mortgage.
These things were done pursuant to the direction of the
attorneys for the purpose of clearing title in the record
holder thereof. The records did not indicate that J.E. Felker
owned any interest in the land other than the 400 acres.
The defendant, Grace Felker, wife of J.E. Felker, married
the latter in November, 1931, after having been employed by
him as his secretary for a number of years. They have ...