Dunavant v. Fields

• Decision Date: 05 January 1901
• Citation: 60 S.W. 420,68 Ark. 534
• Parties: DUNAVANT v. FIELDS
• Court: Arkansas Supreme Court

60 S.W. 420

68 Ark. 534

DUNAVANT v. FIELDS

Supreme Court of Arkansas

January 5, 1901

Appeal from Mississippi Chancery Court, EDWARD D. ROBERTSON Chancellor.

Decree affirmed and cause remanded.

James P. Clarke and Henry M. Armistead, for appellant.

Mutuality is necessary to an account stated. 1 Wait, Act. & Def. 191; 38 Neb. 161; Beach, Cont. § 425; 63 N.Y. 631. The rendering of an account stated does not estop the creditor from correcting errors or omissions. 1 Wait, Act. & Def. 192; Wharf. Cont. § 778. In an equitable partition, a tenant in common who has placed improvements upon land will be compensated or be allotted such portions of the land as will carry to him the improvements. 21 Ark. 539. A tenant in common is liable for only those rents actually received by him. 2 Am. & Eng. Enc. Law, 1098; 138 Mass. 584. Nor is he chargeable for rents and profits of an exclusive possession. 48 Ark. 135; 56 Ark. 624. On death of a legatee before the testator, the legacy lapses. 2 Woerner, Administration § 434; 13 Am. & Eng. Enc. Law, 28; 18 Pick. 141; 15 R I. 138; 5 Allen, 249; 1 Jarm. Wills, 293. It was error to decree the lien for the excess of rents. 52 Ark. 485; 56 Ark 627.

Henry Burnett and Rose & Coleman, for appellees.

An account stated can be impeached for fraud or mistake. 41 Ark. 507; 21 Ark. 420; 16 Ark. 202; 13 Ark. 616; 12 S.W. 781; 107 U.S. 325; 45 Mich. 141; 28 Ark. 447. The mistake must be "some unintentional act, omission or error, arising from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence." Kerr, Fraud & Mist. 396. An account stated cannot be impeached by matters known to a party at the time of settlement. 26 Ill.App. 564; 93 Ga. 515; 80 Mo. 65; 71 F. 58; 64 Ark. 52. Nor on account of mistake due to negligence of the complaining party. 25 N.J.Eq. 48; Id. 66; 38 Minn. 454; 26 N.J.Eq. 434; 12 Cl. & F. 286. Or where he has been guilty of negligence in detecting the error. 2 Barb. 595; 54 Ala. 654. The evidence of mistake must be clear and convincing. 15 Ark. 277; 12 S.W. 781. Appellant's fiduciary relationship to appellees forbids his making any profit from their estate. 5 Johns. Ch. 388; 1 Story, Eq. 330; Bisph. Eq. § 92; 40 Ark. 393; 41 Ark. 104; 54 Ark. 635; 61 Ark. 575; Schouler, Dom. Rel. § 326; 49 Ark. 245; 2 Johns. Ch. 388; 114 U.S. 259; 150 U.S. 578; 159 Pa St. 277; 92 Va. 144. Though the rule was different at common law, under Sand. & H. Dig., § 5917, a joint tenant in exclusive possession is answerable for rents and profits. 61 Ark. 547; id. 26; 56 Ark. 593. Appellant, having failed to claim curtesy in the lower court, can not do so on appeal. 19 Mo.App. 287; 57 Mo.App. 400; 39 N.J.Eq. 303; 57 Ark. 638; 96 U.S. 267; 46 Ark. 103; 55 Ark. 217; 56 Ark, 263; id. 444.

OPINION

BUNN, C. J.

This is a bill in equity to partition the lands mentioned and described therein, between the plaintiff, Henry C. Dunavant and the defendants, Georgia L. Fields, nee Lanier, and Julia Pelham, nee Dunavant, and to state an account between them, involving rents and profits, on the one hand, and expenses of improvements, taxes, etc., on the other. The lands were partitioned, and a decree entered by the Hon. E. D. Robertson, chancellor of the fifth chancery district, in favor of the defendant Georgia L. Fields, and against the plaintiff, for the sum of $ 454.54 and in favor of defendant Julia Pelham, and against the plaintiff, for the sum of $ 2,835.37.

This litigation grew out of the following state of facts, to-wit: Hattie C. Dunavant, the wife of the plaintiff, and mother of Georgia L. by her first husband, and of Julia by the plaintiff, on the 7th of March, 1878, made her last will and testament and departed this life in 1879, and her will was duly and in due time admitted to probate. The testatrix, by her said will, devised all her property of which she might die seized and possessed, consisting of the lands described in the complaint herein and 640 acres of other lands, equally between plaintiff and defendant Georgia L. Lanier, and a son, Henry Dunavant, and it was provided also that after-born children should come in and take equal shares with those named. Harry C. Dunavant died, unmarried, without issue and intestate, and his share went to the other devisees. Julia Dunavant was born after the making of the will. The plaintiff, Georgia L., and Julia became thus the sole devisees. The lands were to be partitioned when the defendants should reach their majorities, and until then the plaintiff was to have the sole management and control of the property devised. When the younger of the two children, Julia, had reached her majority, being unable to effect a partition otherwise, the plaintiff filed this bill for that purpose, asking to be reimbursed for the value of the improvements he had made on the lands described in the bill, and for the expenditures he had made for taxes, and so forth, and for his costs, in excess of rents and profits he had received from the property, to the amount of six thousand dollars, two-thirds of which he claimed the defendants owed him, and that said two-thirds of that amount be paid by them, or that additional property to that extent be allotted to him in the partition.

Warning orders were duly issued for the defendants, who were both non-residents of the state at the time, and an attorney was appointed to defend for them as such, and afterwards, to-wit, on October 1, 1897, the defendants appeared by their solicitors, and filed their joint answer to the bill of the plaintiff, and, among other things, set up that for the ensuing year (1897) plaintiff had rented out the farm on said lands to various tenants (naming them) for the aggregate sum of $ 1,875, and averted that, if plaintiff should be permitted to collect said rents, they would lose their share of the same, as he had no property out of which the same could be made. Therefore they prayed an injunction against said renters, prohibiting them from paying said rents to plaintiff, and asked that a receiver be appointed to receive and collect the same, all of which was done. The injunction was issued by the county and probate judge of the county in the absence of the chancellor therefrom. In their answer the defendants deny that all the lands of which the testatrix had died seized and possessed were included in the complaint, but that 640 acres had been sold soon after the death of the testatrix, by the plaintiff, for the sum of $ 3,240, which he had never accounted for. They say also that, while the greater part of the lands were wild and unimproved, yet that there were thirty acres cleared and in good state of cultivation, when the plaintiff took charge of the lands described in the complaint. They deny that they are indebted to the plaintiff in the sum of $ 4000 ($ 6000) for costs and expenditures in making improvements on said lands, or in any other sum, but, on the contrary, the plaintiff is indebted to them for lands and timber sold and rents in the aggregate sum of $ 26,838, naming the several items. Defendants further allege that plaintiff had theretofore mortgaged his share of the estate to one W. P. Hale for an amount equal to its full value. They pray for general relief.

Thereupon plaintiff filed an amendment to his bill, to the effect that, by the terms of said will, he was vested with the sole management and use of the lands in controversy until his co-devisees, the defendants herein, should become of age, at which time said lands should be divided between them, and that therefore he is not chargeable with nor accountable for any rents and profits (other than for lands and timber sold) arising from said lands, but that he is entitled to the full value of his improvements for taxes and other expenditures, amounting to the sum of $ 20,000. That he had expended upon defendant, Georgia L. Fields, the sum of $ 3,200 on account of her education and maintenance, which he claims is a charge against her separate estate, and should be deducted out of anything he may owe her by way of rents and profits. Wherefore he asks that said will be construed to ascertain whether he is chargeable with the rents and profits; and, if not so, that he be allowed the sum of $ 3,200 against defendant Georgia L. Fields in adjusting the amounts that are due him under this controversy, and for general relief.

Thereupon defendants filed an amendment to their answer. in which they deny that the will contained the words set out in the amended complaint, and say that, on the contrary, said will did not devise the use of the lands, but only gave the management and control of same to plaintiff during their minorities. They say further that for more than eleven years after the death of the testatrix plaintiff charged himself and credited them each with one-third of the rents and profits, and on the 20th of November, 1889, rendered an account between himself and them, in which he showed defendant Georgia L. Fields to be indebted to him on a balance struck in the sum of $ 268. They say that plaintiff is estopped from going behind said stated account, and is estopped from adopting any other mode of charging and crediting either of these defendants. They say that, since the rendition of said stated account, plaintiff has collected the sum of $ 12,000 in rents; that he had already sold land to the amount of $ 3,200, making in the aggregate the sum of $ 15,240, and has not accounted for the same, one-third of which belongs to each of these defendants; that is, each is entitled to the sum of $ 5,080 from the plaintiff. They deny that plaintiff had power under the will to make the improvements for which he makes his claim, and allege that he agreed with the testatrix that he would support and educate the defendants, and she gave him...