Bolen v. Cumby

• Decision Date: 15 November 1890
• Citation: 14 S.W. 926,53 Ark. 514
• Parties: BOLEN v. CUMBY AND ANOTHER
• Court: Arkansas Supreme Court

14 S.W. 926

53 Ark. 514

BOLEN v. CUMBY AND ANOTHER

Supreme Court of Arkansas

November 15, 1890

APPEAL from Desha Circuit Court, W. P. GRACE, Special Judge.

Action of ejectment by Lelia Cumby and another against Abe Bolen. Defendant claimed the land under a tax title. The court held the tax forfeiture void, found that defendant had placed improvements on the land worth $ 443.50 and received rents worth $ 390.00, and rendered judgment in favor of plaintiff for the possession of the land with a lien in defendant's favor for $ 53.50 for betterments. Defendant appealed. Subsequently appellees in this court moved to dismiss the appeal because, after the rendition of the judgment appealed from, the appellant accepted the sum of $ 53.50 decreed to him by the court below for betterments. Appellant, in response to the motion, insisted that he accepted the sum adjudged by the court, because the statute required that it should be tendered before plaintiff could procure a writ of possession, and that he did not intend thereby to abandon his appeal.

Appeal dismissed.

Harrison & Harrison for appellant.

X. J Pindall and Jas. Murphy for appellees.

OPINION

COCKRILL, C. J.

A defendant in an action of ejectment against whom judgment is rendered may submit to the judgment and surrender the possession, without impairing his right of appeal. Again, a party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event -- that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal. "A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset to repudiate it in toto or take it cum onere, and, when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others." Dismukes v. Halpern, 47 Ark. 317, 1 S.W. 554. This language was used in applying the rule to a contract, the provisions of which were in part beneficial and in part burdensome to a party, who, after accepting the benefit tried to cast off the burden; but it is applicable as well to a judgment, the beneficial and burdensome provisions of...