Crowell v. Seelbinder

• Decision Date: 09 May 1932
• Docket Number: 287
• Citation: 49 S.W.2d 389,185 Ark. 769
• Parties: CROWELL v. SEELBINDER
• Court: Arkansas Supreme Court

49 S.W.2d 389

185 Ark. 769

CROWELL v. SEELBINDER

No. 287

Supreme Court of Arkansas

May 9, 1932

Appeal from Crawford Chancery Court; O. D. Thompson, Special Chancellor; reversed.

Reversed and cause remanded.

Edgar Lee Matlock, for appellant.

R S. Wilson, for appellee.

SMITH J. HART, C. J., dissents in part; KIRBY, J., dissents.

OPINION

SMITH, J.

Appellants brought this suit in ejectment to recover from appellees the possession of a lot in the town of Van Buren. Mrs. Emma B. Crowell, who was the mother of appellants, took an estate for life in the lot under the will of her father, with remainder over to her children. After the life estate had vested in Mrs. Crowell, she attempted to convey the fee title to B. J. Brown, and, by mesne conveyances, the title passed to the father of appellees, from whom they inherited the lot.

It is conceded that Mrs. Crowell owned only a life estate, and that appellees acquired such title as she owned. The cause was transferred to equity for an accounting, where the chancellor found that Mrs. Crowell's successors in title had acquired her title in good faith, and that, believing themselves to be the true owners thereof, they had improved the property. Without discussing the testimony, we announce our concurrence in the finding of the court below that appellees and their predecessors in title had color of title to the lot, and, believing themselves to be the owners thereof, had peaceably improved it, thereby enhancing its value, and they are therefore entitled to recover this enhanced value, pursuant to the provisions of § 3703, Crawford & Moses' Digest.

As has been said, the cause was transferred to equity for an accounting as to the value of the rents, on the one hand, and as to the amount of taxes and insurance paid and as to the enhanced value, on the other, and, without making special findings on any of these questions, the court found that appellants were entitled to judgment for the possession of the land, but rendered judgment against them for $ 959.27, and ordered that no writ should issue for the possession of the lot until this sum had been paid pursuant to § 3704, Crawford & Moses' Digest, and this appeal is from that decree.

The excellent briefs of opposing counsel review many of the cases which have dealt with the legal questions here involved, and which have definitely settled those questions, except only those relating to proper credits to be allowed for improvement taxes paid.

As we understand the decree, the court allowed appellees credit, not only for the enhanced value of the property, but also for the cost of certain repairs made for the convenience of a tenant who occupied the building which a predecessor of appellees in the title had built, and also allowed credit for certain insurance premiums paid by appellees, and also refused to charge appellees for certain rents for the reason that they had failed to collect them.

In the case of McDonald v. Kenney, 101 Ark. 9, 140 S.W. 999, the court said that the "Betterment Act" (act 69, Acts 1883, page 106), appearing as § 3703, et seq., Crawford & Moses' Digest, had established an arbitrary standard to adjust the equities between persons who, having color of title to real estate, had in good faith improved it, and had later been evicted because of the failure of their title. That the true owner was allowed to recover rents for the limited period of three years only preceding the recovery of the lands, but that the statute "also arbitrarily allowed all rents issuing from the property during that period, both from the land and the improvements thereon during those three years," and that "the rents are fixed upon a basis of annual periods, and the interest recoverable thereon should therefore be calculated according to such annual periods, beginning at the end of each annual period."

The same case also held that, while the cost of making the improvements may be taken into consideration in arriving at their value, yet the cost is not necessarily controlling. The thing to be ascertained is value, and not cost. This subject was exhaustively considered in the opinion in the case of McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88, and need not be here enlarged upon.

In that case it was said that the allowance for improvements was made upon the ground that they passed into the hands of the person recovering them as a new acquisition, and are only a new acquisition by him to the extent of their value at the time he recovers or obtains possession of them, and their value at that time is to be allowed, and nothing more. Summers v. Howard, 33 Ark. 490; Greer v. Fontaine, 71 Ark. 605, 77 S.W. 56. It was there also said that "the value thereof is based upon the enhanced value which these improvements at the time of the recovery impart to the land."

The cost of the repairs should not therefore have been allowed as a separate item, but should have been considered in conjunction with other testimony tending to show the extent to which the cost of these repairs had enhanced the value of the land.

In the case of McDonald v. Kenney, 101 Ark. 9, 140 S.W. 999, it was said that, "If the vacant lots had a rental value, the defendants are chargeable therewith also because they were withholding same from the true owner." We therefore hold that appellees' failure to collect portions of the rent from their tenants in possession does not relieve them from liability therefor. They are liable...