Muriel Seymour v. Estate of Floyd Ray Davis, Deceased

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ca04-660

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MURIEL SEYMOUR

APPELLANT

V.

ESTATE OF FLOYD RAY DAVIS, DECEASED

APPELLEE

CA 04-660

April 27, 2005

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CV 03-383]

HONORABLE PHILLIP WHITEAKER,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Pursuant to the petition of the appellee, Estate of Floyd Davis, the Lonoke County Circuit Court quieted title in certain real properties to appellee. On appeal, the appellant, Muriel Seymour, who is one of the decedent's daughters, asserts that the trial court erred in quieting title to appellee as the property at issue was transferred to her by a lease/purchase agreement and deed. Specifically, appellant claims that the trial court erred in finding that the lease/purchase agreement failed to contain an adequate description of the property to be transferred. We affirm.

This matter involves property owned by the decedent, Floyd Ray Davis, at the time of his death. On July 23, 2003, the estate's executrix, Gladys Biehslich, who is also one of the decedent's daughters, filed a petition to quiet title in the estate to all real property owned by the decedent at the time of his death. Also on that date, appellee filed a notice of quiet title action. In its petition, appellee alleged that a lease/purchase agreement previously filed by appellant placed a cloud of title on the decedent's property. On August 6, 2003, appellant filed a response to the petition to quiet title denying that the lease/purchase agreement was

an invalid conveyance of an interest in real property. Appellant attached as an exhibit her lease/purchase agreement on certain real property owned by the decedent in favor of herself and purportedly executed by the decedent on April 26, 2002. In addition, appellant attached as an exhibit a quitclaim deed in favor of herself in connection with that property. That deed was not made the subject of this appeal.

On February 5, 2004, the circuit court held a hearing and took the testimony of five witnesses. At the hearing, appellant testified that she drafted the lease/purchase agreement pursuant to her father's instructions as he dictated to her. The following language was contained in the document:

April 26, 2002

A Lease-Buy

I give Muriel Seymour a life time lease on the post office property front lots and the Store building property that was her store, $600 paid to start at ($12,000.00)[.] The cost is $50.00 per month payable by the year.

According to appellant, she handwrote the document days before her father signed it. Appellant testified that on the day that she and the decedent signed it, the decedent instructed appellant to make a modification. As a result, appellant inserted the word "buy" next to the word "lease." In addition, it appears that the phrase "All debt forgiven at my death[]" was also inserted at the end of the document. At the time appellant and the decedent signed the document, appellant's daughter, appellant's friend, and a notary were present. The notary made the following handwritten addition to the document:

State of Arkansas

County of Lonoke

On this 26th day of April, 2002 personally appeared before me Floyd Davis subscribed to the foregoing instrument and acknowledged that he executed the same for purposes therein contained. Karen Upton notary Exp-2-15-12

At the hearing, the trial court made the following ruling:

While there is testimony that [the lease/purchase agreement] was signed by the decedent prior to his death and testimony that it was done based upon an intention of the decedent, it is impossible to know what it is transferring an interest in from the face of the [document]. I am assuming it means something to you family members, but it is not specific enough to transfer any legal interest. I mean, what is the post office property and how does that relate to any of these deeds over here? What is the old store property and how does that relate to any of these deeds over here? It just doesn't transfer anything. At best, all it does is show that there was some kind of an intention, but it doesn't meet the legal requirements of transferring an interest and so, at best, all it does is create another cloud upon the title. Based upon that, the estate's petition is well-taken and petition to quiet title is granted.

On February 25, 2004, the trial court entered a decree quieting title in the property to appellee. Appellant filed her notice of appeal from this order on March 22, 2004.

On appeal, appellant complains that the trial court was clearly erroneous in ruling that the lease/purchase agreement failed to sufficiently specify the real property at issue to effectuate a legal transfer of the property from the decedent to appellant. Appellant argued that she and the decedent understood exactly which property he sought to transfer to her. Appellant's friend, Paula Houston, who was present when the document was signed, testified at the hearing about the property as follows:

The property is L-shaped and there's a post-office on it now. [The decedent] vaguely was talking about the lease-purchase type document. I've known about this property for a long time. Its been talked about for years. He has talked about his intentions for the property on numerous occasions. He has said he wanted Muriel to have a store and to have that property so that she would have a living if something should happen to him. He indicated that he wanted her to have it, even before something might happen to him. She had a store there once, and they closed it. But he wanted her to have that post office and that store area.

Paula Houston's testimony was the only testimony presented that gave any type of a description of the lots or property. We recognize that oral evidence may be resorted to only for the purpose of identifying the description contained in the writings but not for the purpose of locating the land and supplying the description which the parties have omitted from the writings. Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957); Moore v. Exelby,170 Ark. 908, 281 S.W. 671 (1926); Richardson v. Stuberfield, 168 Ark. 713, 271 S.W. 345 (1925); Development & Constr. v. N. Little Rock, 83 Ark. App. 165, 119 S.W.3d 77 (2003). Other cases refer to this rule as requiring the writing itself to furnish "keys" to locating the property. See Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ark. App. 1980).

In Development & Construction, supra, this court affirmed an order quieting title and granting summary judgment on the basis that a real property contract was invalid for the lack of essential terms in the agreement, including an inadequate property description. In that case, we stated that the only description in the agreement that attempted to satisfy the statute of frauds was "Parcel A is bound by Carrot Street, Riverfront Drive, and Broadway Avenue and that the tract is zoned `C6.'" Id. at 172, 119 S.W.3d at 82. We held that the description was not sufficient to effectuate a transfer. Id.

In Creighton, supra, the supreme court reversed a grant of specific performance where the contract for sale of realty contained a description (a street number) that covered only part of a larger tract owned by the vendor. In that case, there were no visible lines or signs on the ground to identify division. The supreme court stated that a determination of what part of the larger tract was intended to be included could not be made without resorting to parol evidence.

Here, we hold that the document does not adequately furnish a description as to the property. See Development & Constr., supra. The only description in the agreement that attempts to satisfy the statute of frauds is "the post office property" and "the Store building property." The document gives us no indication of where "the post office property" or "the store building property" is located. In fact, the agreement fails to recite the county or even the state where either property is located. Therefore, we can only speculate as to which property the document contemplates. Thus, we do not hesitate to affirm the trial court's decision to quiet title in the estate as the document presented by appellant fails to adequately describe the property to effectuate a transfer to her.

Affirmed.

Neal and Roaf, JJ., agree.