Davis v. Shelby

• Decision Date: 25 November 1918
• Docket Number: 5
• Parties: DAVIS v. SHELBY
• Court: Arkansas Supreme Court

206 S.W. 749

DAVIS v. SHELBY

136 Ark. 405

No. 5

Supreme Court of Arkansas

November 25, 1918

Appeal from Jefferson Chancery Court; J. M. Elliott, Chancellor affirmed.

Decree affirmed.

Mehaffy Reid, Donham & Mehaffy, Milton Wayman Guy and Fred A. Isgrig for appellant.

1. Appellant is the purchaser and owner of the lands and entitled to possession. His right is not defeated by the defeasance clause in the deed because the clause is void as being repugnant to the grant. 92 Ark. 324; Kirby's Digest, § 2745. Appellant was a bona fide purchaser under the proof. He paid his first note and the Levys and the Trust Company took possession of and disposed of his crop which more than paid for the land.

2. Appellant is entitled to recover the rental value of the land from 1907 to 1918 with interest. The Shelbys do not come within the provisions of the Betterment Act but are liable for the entire rents because (1) the Betterment Act is a statute of limitation and (2) they went into possession and remained in possession mala fide. All remedial statutes must be construed together and all given full force and effect. Section 2756 does not repeal §§ 5083 and 6167 by implication, nor is it in conflict with them and appellant is entitled to all his rents under §§ 5083 and 6167. He is not barred nor estopped by his former suit. It was dismissed without prejudice. Betterment Act, § 2756, is a statute of limitation. 92 Ark. 173; 101 Id. 9. The chancery suit was commenced in 1909. He was entitled to dismiss without prejudice. Kirby's Digest, §§ 6167, 5683. It was dismissed and this suit brought within the year, and appellant is entitled to recover rents for the entire period of occupancy because he arrested the three-year limitation by suit and its dismissal. Kirby's Digest, § 5083; 121 Ark. 454; 47 Id. 120; 96 Id. 181. The fact that he sought the wrong remedy does not bar or estop him as he dismissed that suit and filed a new one within the year. 23 Ark. 684, 690-1; 49 Id. 248; 13 Id. 269, 276; 17 Id. 533.

3. Appellees are not entitled to the Betterment Act, § 2756. It only applies to bona fide owners under color of title. Kirby's Digest, §§ 2754, 2756. The Shelbys knew that appellant had bought the land and had actual possession under claim of title. His deed was recorded and they had actual and record notice. Appellees are not bona fide occupants. 45 Ark. 410; 86 Id. 368; 92 Id. 173; 48 Id. 183; 67 Id. 184; 98 Id. 320. They were mala fide possessors and liable for all mesne profits. Supra. They had no color of title as they claim under one who had no title. 47 Ark. 528; 72 Id. 601; 67 Id. 184. They also had notice. Supra. They are liable for the rents and interest from the end of each year. Kirby's Digest, § 2747. 92 Ark. 173; 101 Id. 173; 101 Id. 9; 31 Id. 334.

4. They were not innocent purchasers. The Shelbys took no title from Gould and Gould took none from the Levys, because they had already conveyed to appellant. 92 Ark. 324; 87 Id. 360. The deed from Gould to the Shelbys was void. 75 Ark. 603. Appellant had the title and was entitled to recover. Kirby's Digest, § 2745. The Shelbys were not innocent purchasers, having notice. 33 Ark. 468; 63 Id. 289, 299, 300; 51 Id. 61; 89 Id. 19.

5. The plea of res judicata was improperly sustained. The judgment was void and not res judicata, 92 Ark. 324; 47 Id. 120; 62 Id. 439. The Jefferson Circuit Court was not a court of competent jurisdiction in the unlawful detainer suit. Title to land cannot be adjudicated in such a suit. Kirby's Digest, § 3648; 40 Ark. 192. The judgment was absolutely void, not voidable merely. Davis is not estopped by not appealing. Herman on Estoppel and Res Adjudicata, §§ 49, 50-1. The Shelbys and Gould were not parties and a judgment binds only parties and privies. 53 Ark. 330; 64 Id. 330; Ib. 447; 87 Id. 418; 96 Id. 451; 75 Id. 1; 35 Id. 450; 96 Id. 540; 66 Id. 336. The Levys had no rights. 92 Ark. 324.

6. Appellant was not estopped by deed or conduct. 92 Ark. 324. Knowledge of the attorney is that of the client. Notice to an attorney acting for a purchaser is notice to the purchaser. 39 Cyc. 1762; 53 Ark. 242; 75 Id. 343; 94 Id. 503. There was no estoppel. 54 Ark. 456; 97 Id. 43; 54 Id. 508; 53 Id. 196; 80 Id. 409; 64 Id. 106; 10 R. C. L. 690, § 19. Gould was not misled by any statements of Davis. See further as to estoppel: 125 Ark. 441; 54 Id. 465; 62 Id. 316; 89 Id. 349. Appellees waived any lien they may have had. 25 Ark. 510; 30 Id. 172; 35 Id. 100; 46 Id 267. See as to inconsistent remedies, 64 Ark. 213; 76 Id. 273; 82 Id. 514; 82 Id. 347; 75 Id. 40; 76 Id. 344.

7. Under our statutes and decisions this action is not barred. 47 Ark. 120; 96 Id. 181; Kirby's Digest, §§ 6167, 5083. Nor is he barred by the former suit as that was dismissed and a new suit brought within the year. 23 Ark. 684, 690, 691; 49 Id. 248; 13 Id. 269; Ib. 276; 17 Id. 533. Nor by adverse possession. Shelby's possession was not peaceable. 5 Pet. 402; 11 Id. 41; 7 Wheat. 59; 1 Enc. Ev. 640; 24 Ark. 371; 13 Id. 269; Ib. 276. The burden of proving adverse possession is on him who asserts it. 65 Ark. 622; 82 Id. 51; 43 Id. 486. See also as to adverse possession, 1 Enc. Ev. 685-6-7, 690; 61 Ark. 527; 22 Id. 79; 68 Id. 551; 43 Id. 486; 97 Id. 33; 79 Id. 109; 61 Id. 464; 57 Id. 97, 105.

8. In their former suit the Shelbys recognized the title of appellant. 80 Ark. 444; 70 Id. 49. The answer in the chancery suit admitted Davis' title. 43 Ark. 296; 73 Id. 221; Ib. 344; 74 Id. 417.

9. The plea of laches is not available. 96 Ark. 540; 89 Id. 19; 67 Id. 320; 88 Id. 395; 70 Id. 371.

10. See also 77 Ark. 379; 14 Id. 159; 31 Id. 678; Kirby's Digest, § 6167; 3 Ark. 491. The chancellor's findings are against the law and evidence. 91 Ark. 162; 71 Id. 614; 75 Id. 72; 84 Id. 349. Appellees are not consistent. 64 Ark. 213; Bigelow on Estoppel, 717-722; 32 Ark. 346; 57 Id. 632; 59 Id. 441; 63 Id. 268. That the grantors did not understand the legal effect of the language used is not ground of reformation. 46 Ark. 167; 49 Id. 425; 41 Id. 495; 79 Id. 256. Courts will not reform a deed at the instance of a stranger. 51 Ark. 390; 59 Id. 187; 11 Id. 120.

11. Appellees are not entitled to improvements and taxes. 92 Ark. 173; 101 Id. 9; 98 Id. 320; 45 Id. 410; 86 Id. 368; 48 Id. 183; 67 Id. 184.

12. Appellees took nothing under the deed from the Levys to Gould. Minnie B. Levy conveyed only a dower interest. 53 Ark. 53; 28 L.R.A. (N. S.) 873.

Taylor, Jones & Taylor and Rowell & Alexander, for appellees.

1. The deed to Davis was not notice. A court of competent jurisdiction had decided that the instrument was not a deed but a contract which Davis failed to comply with.

2. The judgment in the unlawful detainer suit is res judicata. 23 Cyc. 1253; 108 Ark. 574; 83 Id. 545; 116 Id. 416; 91 Id. 394; Herman on Estoppel and Res Judicata, 282-3, § 210, p. 232, §§ 49, 50, 51, pp. 41-44; 103 Ark. 191; 52 Id. 160; 100 Id. 63. As to distinction between void and voidable, see 100 P. 515.

3. Appellant is estopped. 36 Ark. 96; 37 Id. 47; 125 Id. 146; 91 Id. 141; 131 Id. 77; Bigelow on Est. (3 ed.) 541-3 and notes; 2 Pom. Eq. Jur., § 804; Kirby's Digest, § 510; 126 Ark. 420.

4. The proof shows that the instrument as written through a mutual mistake did not express the contract as originally entered into. This mistake will be corrected and the instrument reformed to speak the truth. 2 Pom. Eq. Jur. § 845 p. 1488; 79 Ark. 592; 105 S.W. 572; 1 Pet. 1; 1 Story, Eq. 161; 2 Johns. Chy. 585; 98 Ark. 14; 145 Ill. 290; 34 Cyc. 938; 48 Ark. 498; 149 N.C. 62; 75 Ark. 240; 200 S.W. 139; 69 Ark. 496; 34 Cyc. 951; 33 Ark. 119. The proof of a mutual mistake is ample.

5. Laches and limitation properly pleaded and appellant is barred. 97 Ark. 19; 106 Id. 102; 78 Id. 7; Kirby's Digest, § 6313; 110 Ark. 39; 103 Id. 601; 85 Id. 144.

6. There is no error as to rents, profits, taxes, improvements, purchase money, etc. The chancellor's findings are correct. No errors are pointed out and his findings should not be disturbed.

OPINION

SMITH, J.

The record in this case is a voluminous one, and many questions of fact of more or less relevancy are discussed in the elaborate briefs filed in the case. The controlling facts, however, may be summarized as follows:

On February 2, 1904, Mrs. M. B. Levy owned a tract of land in Jefferson County, and on that date, by her warranty deed, in which her husband joined, conveyed this land to the appellant, Jefferson Davis, for the sum of $ 5,000, to be paid in eight installments of $ 625, the first payment to be made November 1, 1904. The cash purchase price was $ 3,000 but, because of the length of time allowed for payment, $ 2,000 was added to include interest, profits, etc., but it was agreed that the notes were not to draw interest until after maturity. The testimony is conflicting as to the kind of instrument which should evidence the agreement, and it is contended by appellant Davis that no mistake was made in the preparation of the deed, and that the instrument executed was the instrument intended. On the other hand, it is insisted that the contract between the parties did not call for a deed, and that a mutual mistake was made in the execution of an instrument of that character, instead of a contract of lease with an option to purchase with an obligation to convey the land upon the completion of the payment of the purchase money. The instrument prepared, however, was an ordinary deed, with a clause of defeasance to the effect that the conveyance should become void in case the grantee failed to pay any installment of the purchase money when the same became due, and that, in the event of such default, the grantor should become the landlord and the grantee would become the tenant of the grantor,...