Cotton v. Citizens' Bank
Decision Date | 23 January 1911 |
Parties | COTTON v. CITIZENS' BANK |
Court | Arkansas Supreme Court |
Appeal from Little River Chancery Court; James D. Shaver Chancellor; affirmed.
STATEMENT BY THE COURT.
Z. R Cotton, Charles B. Cotton, Thomas L. Cotton, Luella Weston (born Luella Cotton), Gilbert Henry Cotton and William Elmer Cotton instituted this suit in the chancery court against the Citizens' Bank and numerous other defendants to recover the southwest quarter of the southeast quarter of section 15 township 12 south, range 32 west, in Little River County Arkansas.
They allege that the tract of land in controversy was divided into blocks and lots, and is a part of the town of Foreman. That to bring a separate suit against each person claiming or holding lots adversely to the plaintiffs would entail a great and unnecessary amount of expense because the title and condition of all as respects this lawsuit are identical; and that a resort was had to a court of equity to the end that the rights of all parties may be determined in one action. From the abstract of appellants, we take the following as a substantially correct statement of the issues raised by the complaint and answer:
The facts will be sufficiently stated in the opinion. No objection was made to the jurisdiction of the chancery court in the court below, and none is urged here. The chancellor found from the testimony that the lands in controversy were owned by Clayton Cotton, as an ancestral estate, coming from his father, Zara L. Cotton, and that, upon the death of Clayton Cotton without issue, Zara L. Cotton, his father, became vested with title in fee simple to the lands in controversy, and that plaintiffs have no interest therein for the reason that Zara L. Cotton had conveyed the same before his death to the grantors of the defendants.
A decree was accordingly entered dismissing the complaint of the plaintiffs for want of equity, and they have duly prosecuted an appeal to this court.
Decree affirmed.
E. F. Friedell and L. A. Byrne, for appellants.
1. The deed from Hill to Clayton Cotton recites a consideration of $ 75.00 paid by the latter. The presumption of law is that he acquired an estate by purchase, and the burden rests upon the appellees to vary this deed and overcome this presumption by proof that is full, clear and convincing. 82 Ark. 569; 89 Ark. 182; 79 Ark. 418; 71 Ark. 494; 48 Ark. 169; 57 Ark. 632; 18 Ark. 63. If it be conceded that Z. L. Cotton made the statements as testified to by Dollarhide, they are not admissible to change the plain import and legal effect of a deed absolute in its terms. 86 Ark. 448; 83 Ark. 186; 66 Ark. 229; 62 Ark. 26; 14 Ark. 304; 20 Cyc. 1225 and authorities cited.
2. The title to this land is not impressed with the character of an ancestral estate, but that of a new acquisition. 15 Ark. 556. In so far as this case has been followed by Galloway v. Robinson, 19 Ark. 396, it stands as the construction of the law of descent in this State, but in other respects it has been repeatedly overruled by subsequent decisions. 31 Ark. 103; 52 Ark. 55. To be ancestral, the title to an estate must necessarily come mediately or immediately through some ancester or kindred of the blood, either by descent, deed or will. If it comes by will or deed from a stranger, then the land becomes a new acquisition. 15 Ark. 556; 75 Ark. 19.
J. D. Head and Glass, Estes, King & Burford, for appellees.
1. The recital of a consideration of $ 75.00 paid by Clayton Cotton is only prima facie true, and is overcome by the testimony of both Dollarhide and Z. R. Cotton, to the effect that Z. L. Cotton paid it--and indeed there is no denial that he paid it. 71 Ark. 494.
2. The consideration for the deed having been paid by the father, the land became an ancestral estate in the hands of the grantee, Clayton Cotton. Kirby's Dig. §§ 2645, 2647; 15 Ark. 555; 19 Ark. 402. And this case is not at variance with Magness v. Arnold, 31 Ark. 103, and Hogan v. Finley, 52 Ark. 55. The Magness case distinctly recognizes the doctrine that payment of the consideration by the father for the child results in an ancestral estate, and there was no proof that he paid it, while in the Hogan case the land was unquestionably a new acquisition, being a gift or donation from the State, without consideration. See further, 69 Ark. 237; 27 Am & Eng. Enc. of L. (2 ed.), 301; 144 Ind. 410.
OPINIONHART, J., (after stating the facts).
It is claimed by the plaintiffs that A. C. Hill derived title to the lands in controversy by mesne conveyances from the United States, and this may be assumed to be true. On the 5th day of November, 1880, A. C. Hill and his wife conveyed the land in controversy to Clayton Cotton, and the deed was duly recorded. At the time Clayton Cotton was 12 or 14 years old. The consideration recited in the deed was $ 75, the receipt of which is acknowledged.
For the plaintiffs, Z. R. Cotton testified that he was present when the deed from A. C. Hill and wife to Clayton Cotton was executed. That his father said that he wanted his son Clayton Cotton, to keep the land, as the money which was paid for it came from Clayton Cotton's mother. That she owned a tract of land in Montgomery County, Arkansas, which she sold before her death, and that he, Zara L. Cotton, got the money for it. That he wanted Clayton to keep this tract of land in remembrance of receiving something from his mother. That previous to this his father, Zara L. Cotton, had given to another brother and to himself 40 acres of land each. Witness further testified that Clayton Cotton was a half-brother to him and the other plaintiffs, being a son by the...
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