Shipman v. Penney , 268 Ark. 1096 ( 1980 )

George Howard, Jr., Judge.

This is an appeal from a chancery court decree dismissing appellant’s complaint seeking a cancellation of two warranty deeds she executed to appellees conveying real property, purportedly for safekeeping, which appellees sold to third persons; and a cross-appeal by appellees from a decree awarding the appellant a judgment for $19,000.00 for a coin collection appellant delivered to appellees for safekeeping.

The relevant facts are: Appellant, in 1973, was a party to a divorce action in Dallas, Texas. Upon the advice of her brother, appellee D.R. Penney, appellant conveyed certain Arkansas real estate, one tract consisting of 105 acres and another consisting of 17 acres, to appellees for safekeeping. A valuable coin collection and several guns were also purportedly delivered to D.R. Penney for safekeeping.

Appellant claims that the appellees executed, on the same day that she executed her deeds to appellees, a deed of conveyance to the real property back to the appellant, but these deeds were never recorded and that during a visit to appellant’s home, appellees took the deeds without her knowledge and consent; and that she has not been able to locate them.

On the other hand, D.R. Penney testified that the conveyances were in consideration of an indebtedness owed by appellant in the sum of $33,500.00. The brother admitted that he received the coin collection set for safekeeping; and that he sold the coins for $1,100.00; and that $1,000.00 of this money was deposited to an account in appellant’s name at First National Bank of Ashdown. Appellee, however, denied that he received any guns belonging to the appellant for safekeeping.

It is well settled that while an appeal from a chancery court decree is reviewed de novo, the appellate court will affirm the action of the trial court where the decree is supported by a preponderance of the evidence.

After carefully reviewing the record, we are persuaded that the decree of the chancery court is supported by a preponderance of the evidence. A trial judge possesses one advantage that the appellate judges do not enjoy, namely, the opportunity, during the course of a trial, to observe the demeanor, conduct, disposition and the reaction of witnesses under both direct and cross-examination while we simply have the written record before us. While this, alone, is not totally dispositive, it does, however, have some relevance in seeking to arrive at the truth in a controversy, especially when the issues are sharply contested and the evidence is practically equipoised.

D. R. Penney testified that in 1969, he loaned the appellant $33,500.00 and that appellant deeded the real property in question to him in satisfaction of the debt; and that the lands in question are valued at approximately the amount of the indebtedness. While the appellant testified on direct examination that she never owed her brother anything “in her life”, there was no testimony offered in rebuttal to refute the brother’s testimony that he gave on direct examination.

Attorney Garnet E. Norwood could not testify positively that he either prepared the two deeds purportedly executed by appellant conveying the property to appellees or whether he prepared four deeds, two involving the conveyance to appellees and two involving a purported reconveyance of the property to appellant. Mr. Norwood stated that his records reflected a payment of $40.00 for legal work having been performed for D.R. Penney, or someone representing himself as D.R. Penney; but, in any event, he had no personal recollection that the $40.00 was for four deeds.

D.R. Penney admits that he received appellant’s coin collection set for safekeeping and sold the set for $1,100.00; and that $1,000.00 was placed in an account in appellant’s name at First National Bank of Ashdown. This is tantamount to an admission that the coins were disposed of while they were in his possession for safekeeping for appellant.

The proof is deficient in showing that appellees also took possession of any guns belonging to appellant.

Affirmed.

Wright, C.J., and Newbern, J., concur.