Dolphin v. Wilson

Ray Thornton, Justice,

dissenting. I agree with the majority opinion that Chancellor Bell did not commit reversible error by not recusing from this case. As noted in the opinion, the record reveals no indication or expression of bias on the part of the chancellor. However, I must respectfully dissent from the majority decision that the chancellor erred in finding that there was an oral contract between Beatrice Dolphin and Jimmie L. Wilson whereby she would convey her interest in the land to Mr. Wilson in return for his efforts in stopping a foreclosure sale by paying the appraised value of the real property and effectively negotiating settlements of the outstanding debts owed on the land.

As the majority points out, in order to take an oral contract to convey land out of the statute of frauds, both the making of the oral contract and its performance must be proven by clear and convincing evidence. French v. Castleberry, 238 Ark. 1038, 386 S.W.2d 485 (1965). As we recently stated in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996): “In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence.” Id. at 487, 931 S.W.2d at 770; see also McGarrah v. McGarrah, 325 Ark. 81, 924 S.W.2d 260 (1995). Because the chancellor is in a superior position to judge the credibility of the witnesses, this court gives deference to the trial court’s findings of fact unless the appellant can demonstrate that the chancellor abused her discretion by making a decision that was arbitrary or groundless. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996).

As in most cases where the existence of a contract is in dispute, the testimony of the parties in the case before us is contradictory; the decision whether a contract existed addresses itself to the sound discretion of the judge who hears the testimony, considers documentary evidence, and determines factual issues such as whether and to whom payment was made, and whether possession was assumed. Based upon substantial evidence presented at the trial, the chancellor found that Mrs. Dolphin’s farm had become heavily encumbered by debt, and that after her husband’s death in 1988 she took no action to stop a foreclosure proceeding scheduled for May 25, 1994, or to discharge the debt. For all intents and purposes, she had written off the land and the debt.

The chancellor considered Mr. Wilson’s testimony that Mrs. Dolphin agreed to sell him the property if he could get the indebtedness satisfied and prevent the public auction by paying the appraised purchase price of FmHA. The chancellor then made the following specific findings:

Upon reaching this agreement with Respondent, Wilson then contacted the County Supervisor . . . [and] was informed, by letter dated May 20, 1994, of the procedure required to ehminate the public sale of the property. As the result of this letter, Wilson caused to be issued two cashiers checks, both dated May 24, 1994 ... as follows:
1. Department of Justice — $1239.40; and
2. Farmers Home Administration — $13200.00.
The satisfaction of the judgment was filed June 7, 1994 and forwarded to Wilson.
Wilson also engaged the services of a farmers’ organization directed by Calvin King, Arkansas Land and Farm Development Corporation. That organization engaged in mediation efforts with the state and national offices of FmHA. As the result, the mortgages reflecting the outstanding indebtedness of this Respondent were satisfied on August 17, 1994. This satisfaction was forwarded to Wilson.
After the satisfactions were received, Petitioners [the Wilsons] assumed possession of the real property in question. The acts of possession of the Petitioners consisted of having the grass mowed at least 4 times by the City of Lakeview; had the land disced; hired someone to bulldoze debris; and had the back of the property drained .... Wilson then forwarded to [Mrs. Dolphin] the satisfaction referred to previously and a proposed deed. . . .

The majority refers to the cases of French v. Castleberry, supra, and Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972), where we observed that similar improvements made by tenants were insufficient to take an alleged oral agreement to convey the land out of the statute of frauds because such improvements were of the type that might ordinarily be made by tenants. However, Mr. Wilson had no right to be on the land as a tenant. His claim to possession was pursuant to the oral agreement that he testified he and Mrs. Dolphin had entered into.

We have noted that to take a contract out of the statute of frauds, the improvements must be so valuable and substantial that it would be inequitable to refuse specific performance. Id.; Blanton v. First Nat’l Bank of Forrest City, 136 Ark. 441, 206 S.W. 745 (1918). Certainly the clear and convincing evidence is that Mr. Wilson made very valuable and substantial improvements to the property. He redeemed it from foreclosure and took action to assist in the satisfaction of the other debts. He also took possession of the property and made improvements including bulldozing and draining parts of the realty.

When deference is given to the chancellor’s findings of fact in this case, it does not appear that those findings are clearly erroneous or clearly against a preponderance of the evidence. The chancellor weighed the evidence, evaluated the credibility of the witnesses, and decided that clear and convincing evidence proved the existence of an oral contract to convey real property, and that Mr. Wilson’s assumption of possession and making of improvements took the contract out of the operation of the statute of frauds.

I would affirm the chancellor’s order granting specific performance, and for that reason, I must respectfully dissent.