Bradley Lumber Co. v. Burbridge

• Court: Arkansas Supreme Court
• Writing for the Court: Robins
• Citation: Bradley Lumber Co. v. Burbridge, 210 S.W.2d 284 (Ark. 1948)
• Decision Date: 30 March 1948
• Docket Number: Nos. 4-8309, 4-8310.,s. 4-8309, 4-8310.
• Parties: BRADLEY LUMBER CO. OF ARKANSAS v. BURBRIDGE (two cases).

210 S.W.2d 284

BRADLEY LUMBER CO. OF ARKANSAS v. BURBRIDGE (two cases).

Nos. 4-8309, 4-8310.

Supreme Court of Arkansas.

March 30, 1948.

Rehearing Denied April 26, 1948.

No. 8309:

Appeal from Chancery Court, Bradley County; James Merritt, Chancellor.

No. 8310:

Appeal from Circuit Court, Bradley County; John M. Golden, Judge.

Consolidated suits by L. J. Burbridge against Bradley Lumber Company of Arkansas and against S. H. Fullerton and others for damages for cutting timber, and ejectment suit by same plaintiff against Bradley Lumber Company to establish plaintiff's title to realty and to recover possession. From adverse decree in damage suit against S. H. Fullerton and others, plaintiff appeals, and from adverse decree in other damage suit and in ejectment suit, defendant Lumber Company appeals.

Decision in accordance with opinion.

Williamson & Williamson, of Monticello, for appellant.

U. A. Gentry, of Little Rock, and DuVal L. Purkins, of Warren, and Shields M. Goodwin, of Little Rock, for appellee.

ROBINS, Associate Justice.

These two appeals were lodged here separately.

In case No. 8309 the appeal comes from a decree of the chancery court, rendered on December 23, 1946, in three different suits (consolidated for trial in the lower court) filed in that court by appellee, L. J. Burbridge, to recover damage for cutting of timber on 320 acres. In one of these cases the lower court denied recovery to appellee, another was dismissed on stipulation, and in the other case the court found that appellee was entitled to damages, but allowed him only one-half of the value of the timber removed because, as the court held, he owned only a half interest in the land.

In No. 8310 appeal is from a judgment of the circuit court, rendered on May 19, 1947, in an ejectment suit instituted by appellee to establish his title and to recover possession of the same tract as that involved in the chancery cases. The circuit court, treating the previous decree in the chancery cases as res judicata, held that appellee should recover only an one-half interest in the land.

Inasmuch as the basic question in all these cases is the same — the ownership of the land — we have consolidated the two appeals for determination by single opinion.

Solution of these questions is necessary to a determination of all the issues involved:

I. Question of ownership of the land under the deed executed by J. H. D. Scobey and wife.

II. Question of efficacy of appellant's plea of limitation against appellee's claim of ownership.

III. Question of effect of the quitclaim deed executed by Nettie Burbridge Wells to appellee.

IV. Question of jurisdiction of the circuit court in the ejectment suit.

V. Question of appellee's right to recover for timber cut from the land.

I. Both parties to this litigation claim through a common source of title.

It is stipulated that appellee's maternal grandfather, J. H. D. Scobey, owned this land on June 4, 1869, and that on that day Scobey and his wife executed a deed, conveying same, and other lands, to his daughter, Isabella J. Burbridge "and the issue of her body, by J. R. S. Burbridge begotten, forever and in fee". The meaning and effect of the quoted language is one of the disputed issues herein. At the time this deed was executed J. R. S. Burbridge and his wife, Isabella, had one child, the appellee, who was eighteen days old. They had five children in all, but three of them died without issue, and only two of them, appellee and his sister, Nettie Burbridge Wells, survived their mother.

J. R. S. Burbridge died in 1885, and his widow, Isabella, never remarried. She died on May 7, 1932, at the age of 93. Isabella J. Burbridge, on September 16, 1891 conveyed the lands in dispute to J. F. Ritchie, through whom appellant deraigns its title. Her deed to Ritchie contained no limitation, but purported to convey the entire estate.

It is urged by appellant that the effect of the deed executed by Scobey in 1869 was to vest in Isabella J. Burbridge and appellee an estate of tenancy in common, with the estate opening up on the birth of each succeeding child to Isabella J. Burbridge so as to permit each such child to take an equal estate as tenant in common. And, argues appellant, since appellee was a tenant in common, instead of a remainderman, the running of the statute of limitations had therefore been started against him much more than seven years before the beginning of any of these suits by appellee.

While the exact language used in the conveyance by J. H. D. Scobey and his wife has not been construed by this court, we have, in many cases, had to determine the meaning of substantially the same wording in deeds.

In the case of Horsley et al. v. Hilburn et al., 44 Arkansas 458, decided in 1884, this court held that under the common law in force in this state, as modified by the Act of 1837 (Pope's Digest, Sec. 1799), a deed executed by Jesse Shelton to his daughter, Marietta Hilburn, and "the heirs of her body that now are or may hereafter be born" vested a life estate in Mrs. Hilburn and upon her death the remainder in fee in her children that survived her and the issue of such as had died during her life per stirpes.

The decision in Horsley v. Hilburn, supra, has never been overruled, but has been followed by us in many cases. See Watson v. Wolff-Goldman Realty Company, 95 Ark. 18, 128 S.W. 581, Ann.Cas. 1912a, 540; Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975; Maynard v. Henderson, 117 Ark. 24, 173 S.W. 831, Ann.Cas.1917a, 1157; Pletner v. Southern Lumber Company, 173 Ark. 277, 292 S.W. 370.

In the recent case of Wilkins v. Wilkins, Ark., 206 S.W.2d 26, 27, we had to deal with a contention somewhat similar to that urged by appellant here. In that case it appeared that Wilkins and wife executed a deed conveying certain land to their son "and unto his children and assigns forever". It was urged that under this deed the son and his children were vested with title as tenants in common. We rejected this contention and held that the deed created a life estate in the son with remainder in fee simple in the children.

We conclude that the chancery court correctly held that the deed executed by J. H. D. Scobey and wife in 1869 vested in Isabella J. Burbridge a life estate, with remainder in fee simple being vested in such issue of her body begotten by J. R. S. Burbridge as should survive her.

II. The lands involved herein are wild and unenclosed, and have never been in the actual possession of any of the parties. It is stipulated that each year since the conveyance of same in 1891 by Isabella J. Burbridge to J. F. Ritchie, through whom appellant deraigns its title, appellant and its predecessors in title have paid the taxes accruing against this property until after the institution of all the litigation herein.

Appellant argues that under Section 8920, Pope's Digest, this wild and unenclosed land has been in the constructive possession of appellant and those through whom it claims title for more than seven years before the institution of any of the actions brought by appellee, and that therefore these actions were barred by the statute of limitations.

It was the duty of appellant and its grantors, who had, through the deed of Isabella J. Burbridge to J. F. Ritchie, become the owner of an estate in these lands for the life of Isabella J. Burbridge, to pay the taxes accruing against the lands during Mrs. Burbridge's lifetime. A failure on their part so to do would have resulted in a forfeiture of this life estate to the ones next entitled to take. Sec. 13813, Pope's Digest.

But, assuming that under the provisions of Sec. 8920, Pope's Digest, the possession of this land has been in appellant and its grantors, such possession was not adverse to appellee and the other remaindermen. No principle of law is better established than that the possession of one claiming under a life tenant is not adverse to the remaindermen until the death of the life tenant. Moore v. Childress, 58 Ark. 510, 25 S.W. 833; Hayden v. Hill, 128 Ark. 342, 194 S.W. 19; Ousler v. Robinson, 72 Ark. 339, 80 S.W. 227; Gallagher v. Johnson, 65 Ark. 90, 44 S.W. 1041; Morrow v. James, 69 Ark. 539, 64 S.W. 269; Ogden v. Ogden, 60 Ark. 70, 28 S.W. 796, 46 Am.St.Rep. 151; Stricklin v. Moore, 98 Ark. 30, 135 S.W. 360; Le Sieur v. Spikes, 117 Ark. 366, 175 S.W. 413; Smith v. Maberry, 148 Ark. 216, 229 S.W. 718; Hamilton v. Farmer, 173 Ark. 341, 292 S.W. 683.

Nor did the attempted conveyance by Isabella J. Burbridge of the entire estate to J. F. Ritchie work a forfeiture of the life estate or start the statute of limitations to running against appellee. Smith v. Maberry, supra.

Since appellee's ejectment suit was instituted less than seven years after the death of his mother, it was not barred by limitations.

III. The chancery court sustained appellant's contention that the deed executed by Nettie Burbridge Wells, the only child (other than appellee) of Isabella J. Burbridge, who did not die before the death of Isabella J. Burbridge, to her brother, appellee, was ineffective to convey any title whatever. This deed, which was executed on May 21, 1913, was a quitclaim deed, but it recited a consideration of $500 paid by appellee to Mrs. Wells, and by its express language it purported to convey to appellee all interests, "present and prospective" of the grantor in these lands. So far as the record discloses, Mrs. Wells has never attempted to invalidate this deed, nor has she asserted that all her share in the land was not conveyed to her brother by this deed.

The chancery court based its ruling as to this deed on the fact that, since the deed was a quitclaim one, it did not under our decisions, operate to carry after acquired title, and that since Nettie Burbridge Wells, when she executed the deed, had no present interest in the land, but only an interest contingent on her surviving her mother, she had no alienable title to the lands.

The statute (Sec....