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Graham v. French

Court of Appeals of Arkansas, Division IV

January 28, 2015

HOWARD GRAHAM, D.G. GRAHAM, JR., NETTIE WHITLOW, BETTY WILLIAMS, TRAVASTINE AUSTINE, BLANCHE LUMPKIN, D.K. GRAHAM, SR., WILLIE PITTARD, LISA McGOWAN, and DANIEL GRAHAM, JR., APPELLANTS
v.
STEVEN ARZO FRENCH, WILLIE LEE GRAHAM, RUTH ANN GRAHAM, VESSIE HUDSON, AHIGA HUDSON, VELMA WOODS, and MAMIE BEAL, APPELLEES

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT. NO. CV-2012-80-3. HONORABLE DOUG SCHRANTZ, JUDGE.

AFFIRMED.

McKissic & Associates, PLLC, by: Jackie B. Harris, for appellants.

Stephen L. Tisdale, P.A., by: Stephen L. Tisdale; Melinda French; and William L. Owen, P.A., by: William L. Owen, for appellees.

ROBERT J. GLADWIN, Chief Judge. VIRDEN and HIXSON, JJ., agree.

OPINION

Page 247

ROBERT J. GLADWIN, Chief Judge.

On September 30, 2013, the Desha County Circuit Court dismissed appellants' complaint to set aside a sale and cancel a deed. On appeal appellants argue that they have standing to bring the suit and that they have alleged facts sufficient to state a cause of action.[1] We affirm the circuit court's order dismissing the complaint.

Willie Morse Graham bequeathed 180 acres in Desha County, Arkansas, to her nine children. Her will stated that the bequeathed property was " to be considered family property and [could] only be sold by an agreement of all of [her] surviving children." Six of the nine children requested a partition of the 180 acres in a 2005 lawsuit filed in Desha County Circuit Court ( Graham I ),[2] and three children objected to the partition action. Steven Arzo French was allowed to intervene in Graham I because he was the holder of a lease on the subject property. Graham I ended with the trial court finding that Willie Graham's will provision violated the rule against unreasonable restraints at common law. However, the trial court found that the will's terms were consistent with Arkansas Code Annotated section 18-60-413 (Repl. 2003) regarding partition, which should be strictly construed. Section 18-60-413 requires that no partition or sale of land devised by any last will and testament shall be made contrary to the intention of any testator. Thus, the trial court denied

Page 248

the partition complaint in Graham I as contrary to Willie Graham's will.

On August 17, 2012, appellant Howard Graham, the child of D.G. Graham, who was one of the nine children of Willie Graham, filed the complaint herein against appellees, the six heirs of Willie Graham who had sought partition in Graham I and Steven Arzo French. Appellants sought to set aside a sale and cancel a deed claiming that appellees had acted contrary to the order entered January 8, 2007, in Graham I by conveying through warranty deed to Steven Arzo French their undivided 8/9 interest in the 180 acres. Appellants sought cancellation of the deed as violative of Graham I.

On October 18, 2012, appellees, grantors to the warranty deed, filed a motion to dismiss alleging that the complaint failed to state facts upon which relief could be granted pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2012). Appellees argued that the provision of Willie Morse Graham's will at issue only prevents a sale unless consented to by " an agreement of all of my surviving children." They claimed that the surviving children were named in the will. They argued that Howard Graham, plaintiff, was not a surviving child, but an heir to D.G. Graham, deceased child of Willie Graham. Therefore, they claim, Rule 12(b)(6) applied because Howard Graham had no standing to contest the deed he wanted to set aside. Further, appellees argued that even if Howard Graham could establish an ownership interest in the property, he would continue to enjoy his undivided share and any rights of co-tenancy that he ever had. Appellees argued that the deed he wanted set aside did nothing to change the nature of his ownership interest.

A judgment was filed on September 30, 2013, wherein the trial court considered appellants' contention that the grandchildren, or heirs of D.G. Graham, had to consent to the sale under the provisions of Willie Graham's will. The trial court determined that the restriction on the right of alienability was given to her surviving children and that this power was personal to only those surviving children and not to other heirs. Next, the trial court considered Arkansas Code Annotated section 18-60-413 and determined that the statute limits petitions " under this act" to " any persons having any interest in, and desiring a division of, land held in joint tenancy, in common . . ." The court found that there was no desire to divide land in the 2007 conveyance to French; instead, there was a conveyance of undivided shares. Thus, the trial court found no partition, as the conveyance was of the undivided interest of the heirs, except for D.G. Graham. ...


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