dissenting. I dissent from the majority opinion which I feel is an incorrect interpretation and application of the law as well as a most unjust decision. I realize we are frequently forced by law to make unjust decisions but this one was freely and voluntarily made by the court.
This is a typical case of parents wishing to see that their children receive their property at the time of their death. However, the parents in this case deeded a small farm to their son and at the same time reserved the right of the father to work the land as long as he desired. There is no indication that the “sales agreement” was not executed before the “warranty deed.” No doubt, the deed was given with the expectation that it would complete the transaction which had been agreed upon in the “sales agreement.” The parents, no doubt, desired to keep peace and harmony in the family and therefore included the name of their daughter-in-law, the present appellee, on the deed with the name of their son. This farm had been jointly tended by the father and the son many years before the instruments mentioned above were executed. In fact, they continued to tend the property together and share in the profits until the death of the son in 1979. The father even divided the profits of the farm with the widow of his son, his daughter-in-law, the present appellee, during the year following his son’s death.
The widow moved to Texas and in 1980 filed this suit to get title free and clear in her own name. A more unjust and unconscionable claim could not be presented to a court of equity. I will not be a part of allowing this woman to take this property from these old people.
These two instruments were executed simultaneously and all parties acknowledged that they knew what the instruments were. Mary K. Barnes, in addition to signing the “sales agreement,” accepted the benefits of the agreement for many years and then after her husband died she decided to renege on the agreement. At least since 1908 we have held that the conduct of the parties to an agreement is evidence of the parties’ understanding and intentions concerning the agreement. Field v. Morris, 88 Ark. 148, 114 S.W. 2d 206 (1908). No one can seriously deny that the words in the agreement were carried out for a number of years and the action of the parties is clearly in compliance with the plain meaning of the language used in these agreements.
I agree with the appellant’s statement that it is a general rule that in construing separate writings that make up one contract even though there were contemporaneous instruments drawn at the same time such instruments will be construed as constituting one contract. Quillen v. Twin City Bank, 253 Ark. 169, 485 S.W. 2d 181 (1972). The parties in the present case did approximately the same thing as has been done thousands of times when a grantor gave an absolute deed and at the same time the grantee executed a mortgage on the same property. Therefore, I would reverse and hold that the father has the right to work this land as long as he lives or desires.