Bowen v. Frank

• Decision Date: 08 July 1929
• Docket Number: 83
• Citation: 18 S.W.2d 1037,179 Ark. 1004
• Parties: BOWEN v. FRANK
• Court: Arkansas Supreme Court

18 S.W.2d 1037

179 Ark. 1004

BOWEN v. FRANK

No. 83

Supreme Court of Arkansas

July 8, 1929

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor judgment modified.

Decree affirmed.

F F. Harrelson, for appellant.

A H. Murray and Randolph & Randolph, for appellee.

OPINION

KIRBY, J.

This suit was brought by four of the seven children of John F Frank, deceased, devisees under his will, against Walter A. Frank and Mrs. Leonora F. Bowen, two of his children, and all his grandchildren, to have the title of the plaintiffs to certain lands located in St. Francis County, Arkansas, and others in Lee County, Arkansas, quieted and confirmed in them in fee simple.

This is the second appeal of this case, the decree of the chancellor on the first appeal being reversed, and the cause remanded, because the decree was premature. Frank v. Frank, 175 Ark. 285, 298 S.W. 1026. Upon the mandate of this court being filed in the St. Francis Chancery Court, this decree was rendered on the date of its filing, Dec. 3, 1927. An amendment was filed to the complaint, alleging that Harriot Amelia Frank, who was a minor at the time of the suit brought, had reached her majority; that Amelia L. Bowen had intermarried with Alfred C. Smith; the marriage of Monroe C. Frank, with prayer that Alfred C. Smith, Mary Francis Frank, the wife of Monroe C. Frank, be made parties defendant, which was done by constructive service and publication and proof of a warning order. F. F. Harrelson was appointed guardian ad litem for Hughetta Bowen, a non compos mentis, and filed a demurrer to the complaint, both as such guardian and as attorney for the defendants, W. A. Frank, Mrs. L. F. Bowen and M. C. Frank. The demurrers being overruled, the said defendants declined to plead further, and the guardian ad litem filed answer to the complaint on April 14, 1928, denying all the material allegations thereof. On the hearing the court found for the plaintiffs, and rendered a decree quieting and confirming the title as prayed for in the complaint, from which decree this appeal is prosecuted. The demurrers raised the question of jurisdiction of the court of the subject-matter of the action, and of the sufficiency of the complaint.

The complaint alleged that plaintiffs are owners in severalty of certain described tracts of land in St. Francis and Lee counties, Arkansas, and that the defendants, children of John F. Frank, deceased, had been allotted other lands in Lee County; that the children of the said Frank, deceased, both plaintiffs and defendants, claimed title to the lands from a common source as the devisees of the said John F. Frank, who died testate on October 6, 1904, seized and possessed of the said lands. The will was admitted to probate in Shelby County, Tennessee, the residence of the testator, and an authenticated copy duly probated in St. Francis County, Arkansas. A copy of the will was exhibited with the complaint, item 4 of which reads as follows:

"Item four. I hereby give, devise and bequeath to my seven children and legal heirs, to-wit, Charles F., Robert B., John L., Walter A., Clara M., Elizabeth G., and Lenora E. Frank, now Mrs. S. A. Bowen, all of my property, real, personal and mixed, wheresoever situated, not already disposed of, which I now own or may hereafter acquire, and of which I may die seized and possessed, absolutely and in fee simple, and in equal shares. The division shall be made by three commissioners to be appointed by my said children, and the lots and parcels of land so divided shall be drawn for by them, and any difference in the valuation be settled among themselves. The property of my daughters, however, shall be held and owned by them for their sole and separate use and enjoyment, free from the debts and contracts of any husbands, for and during their natural lives, with remainder in fee to their children, and in default of children surviving either of them, then to my children who shall then be living, their heirs and assigns forever, and should any of my sons die without issue, his or their share shall also revert to my children then living, their heirs and assigns forever."

It was alleged that under this provision of the will plaintiffs took an absolute fee simple title to the lands devised to them respectively. It was alleged further that, pursuant to this provision, the seven children of the testator appointed three commissioners to divide the lands of the deceased in Arkansas in seven equal shares, and allotted one share to each of his seven children. In this deed the seven children joined and ratified the partition made by the commissioners, and conveyed to each other respectively all his interest in the shares which had been allotted to each respectively, subject to the provisions of the will. It was alleged that Clara M. Frank was 65 years of age, and had never married; that plaintiff Elizabeth G. Frank was 58 years old, and had never married; and the defendant Lenora F. Bowen was a widow with three living children. It was further alleged that on August 8, 1910, the seven children of the testator, J. F. Frank, deceased, executed and delivered another deed, which was recorded both in St. Francis and Lee counties, conveying and warranting to each of the seven children, respectively, the land which had been set aside to each in the partition. In this deed each granted to the other his interest, present and prospective, in the lands allotted to each, and warranted that none of the grantors, nor their heirs or assigns, would ever at any time assert any claim, under the terms of the will or because of it, to the shares allotted to any of the grantees the title to which should be kept in them. It was also charged that, if the plaintiffs were wrong in their contention that the children each took a fee simple title in the lands devised to them under the will, they had acquired such title by the partition and deeds thereto.

The testimony is undisputed that plaintiffs had been in the constructive, if not actual, possession of the lands claimed by them since August 8, 1910, under the instrument under which they claim title, and paid the taxes due thereon for more than seven years before the commencement of the action, and that no one was in possession of the lands or any part thereof claiming adversely to either of them.

It is insisted, under the authority of Frank v. Frank, 88 Ark. 1, 113 S.W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. Rep. 73, that the court was without jurisdiction to entertain the suit, it being in effect an attempt to construe the will of John F. Frank, deceased, in which no attempt was made to create any trust relation with respect to any of the property devised, and legal assets only were disposed of. This suit, however, is one for quieting the title, which could be brought, under the circumstances, in equity, notwithstanding its determination required the construction of the will under which all the parties claimed as a common source of title. It is true that the Statute provides (§§ 8363-4, C. & M. Digest) that the petition for quieting title to lands shall be filed in the office of the clerk of the chancery court of the county in which such land is situated, and the petitioner may embrace in his petition as many tracts of land as he sees proper, so that all lie in the same county; but § 1164, C. & M. Digest, provides:

"Actions for the following causes must be brought the the county in which the subject of the action, or some part thereof, is situated: (1) For the recovery of real property, or of any estate or interest therein; (2) for the partition of real property; (3) for the sale of real property under a mortgage, lien or other incumbrance or charge; (4) for any injury to real property."

If the suit be regarded as one for the recovery of an estate or interest in real property, this statute requires it to be brought in the county in which the subject of the action or some part thereof is situated. Although the lands the subject of the action, the title to which is sought to be confirmed and quieted herein, are situated in two counties, the great portion thereof in the county where suit was brought, the cause of action is the same, and all the parties at interest claim title to each of the tracts of land under the one common source, the will, the conveyances of the lands affecting the title being made by the same parties, granting the same tracts of land in accordance with the partition and family settlement to effectuate the purpose of all, and, we think, under the circumstances, the court had jurisdiction of the subject of the action, although the lands were situated in two counties, and could grant...