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May 25, 1951


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, separately stated.

Findings of Fact


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 Washington.

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 24, 1950.

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 ...

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