Eversmeyer v. McCollum
| Decision Date | 17 May 1926 |
| Docket Number | (No. 367.) |
| Citation | 283 S.W. 379 |
| Parties | EVERSMEYER et al. v. McCOLLUM. |
| Court | Arkansas Supreme Court |
Appeal from Hempstead Chancery Court; Chas. E. Johnson, Chancellor.
Suit by James H. McCollum against P. F. Hein and others. P. F. Hein filed a cross-complaint against plaintiff, A. H. Eversmeyer, and others, and asked that they be made defendants. From the decree, A. H. Eversmeyer and others appeal. Affirmed in part, and in part reversed and remanded, with directions.
Jas. H. McCollum brought this suit in equity against P. F. Hein, W. M. Kennedy, J. B. Yates, D. R. Hammet, and A. G. Guise, to enjoin them from cutting timber on the lands embraced in the complaint, and to declare that the plaintiff's title to said land may be confirmed and quieted forever subject to the life estate of the defendant P. F. Hein; that an oil and gas lease executed by P. F. Hein to J. B. Yates be canceled; and that the plaintiff have a decree against the defendants for the value of all the cross-ties made by them of the timber which they had cut on said land.
P. F. Hein filed a separate answer, in which he asserted title to the land embraced in his complaint, and filed a cross-complaint against the plaintiff and A. H. Eversmeyer and Hattie Eversmeyer, his wife, and Dr. W. B. H. Pool and Jessie G. B. Pool, his wife, and asked that they be made defendants to the action. In the event it was decreed that P. F. Hein only owned a life estate in 220 acres of land to which he asserted title and which is described in the complaint, during the life of Mary Pool, he asked to recover against A. H. Eversmeyer, from whom he had a warranty deed to said land, the sum of $8,800 on account of failure of his title.
The suit involves the construction of a deed from T. R. Billingsley and wife to Mary Pool and others executed on the 18th day of July, 1910. Omitting the description of the land, the body of the deed as follows:
The record shows that on February 22, 1910, Philander Pool, Mary Pool, his wife, William B. H. Pool, and Nannie L. Mason and her husband, J. A. Mason, filed an ex parte petition in the Henderson circuit court for the purpose of having sold 176 acres of land situated in Henderson county, Ky.
The petition alleges that William B. H. Pool, who is 27 years of age, is the child of Mary Pool and the only child born to her now living. Philander Pool is alleged to be 69 years, and Mary Pool 66 years of age. The petition further alleges that Philander Pool resides in McCracken county, Ky., and that William B. H. Pool resides in the state of Arkansas, and that Nannie L. Mason resides in Union county, Ky. The reason given for selling the land is its inconvenient location to the home of the petitioners and the infirm condition of Philander Pool and Mary Pool. The petitioners ask that the proceeds of sale, after paying the costs, be paid in the following manner: One-third to Philander Pool, and the remainder of the proceeds to be reinvested by the court in other real estate with the title thereto in the same manner and as provided by the conditions and provisions of the deed of B. H. Hendrick and wife to Philander Pool and others. The deed of B. H. Hendrick and wife was executed on the 11th day of September, 1889, and contains the following:
"One-third to Philander Pool and the other two-thirds to his wife, Mary Pool, for and during her natural life, and at her death to go to Philander Pool, if alive, for and during his natural life, and if at his, Philander's, death the said Mary Pool being dead there should be living a child or children born of the said Mary Pool, or descendants of such child or children, said land shall go to such child or children, or their descendants, and if none such be in existence, at the death of said Philander Pool then said balance of two-thirds of said land shall go to and become the property of Nannie L. Pool and her heirs forever."
On June 4, 1910, the same petitioners filed in the same court a supplemental petition with which was submitted the written proposition of T. R. Billingsley of Hempstead county, Ark., to sell and convey to them, for a consideration of $4,500, 220 acres of land in Hempstead county, Ark., which is described in said supplemental petition and which is the land in controversy in this suit.
The prayer of the petition was granted by said Henderson circuit court, and the sum of $4,500 of the remaining two-thirds of the proceeds of the sale of the land in Henderson county, Ky., was ordered by said Henderson circuit court to be invested in said Hempstead county, Ark., lands.
The commissioner was ordered and directed to pay said sum of $4,500 to said T. R. Billingsley upon the delivery of a warranty deed conveying said land to said petitioners. In the order with reference to the vesting of the title to said Hempstead county land in the petitioners, the following language is used:
"Said deed is to vest in the petitioners the same title in said land and by the same conditions and terms as the two-thirds interest was vested in them in the conveyance filed in this cause — that is, to Mary A. Pool, for and during her natural life and at her death to the said Philander Pool, if alive, for and during his natural life, and at his (Philander's) death, the said Mary Pool being dead, there should be a child or children born of the said Mary Pool or descendants of such child or children, said land shall go to such child or children or their descendants, and if none such be in existence on the death of Philander Pool, then said two-thirds of said land shall go to and become the property of Nannie L. Pool (now Nannie L. Mason) and her heirs forever."
Pursuant to this order, the deed of T. R. Billingsley and wife as copied above was executed.
On September 20, 1915, Mary Pool instituted an action in the chancery court of Hempstead county, Ark., against T. R. Billingsley, Philander Pool, Nannie L. Mason, and William B. H. Pool to reform the deed above referred to from T. R. Billingsley so as to vest the title in fee simple in said Mary Pool. In her petition Mary Pool alleges that William B. H. Pool was only her foster son.
William B. H. Pool filed an answer in which he denied all the allegations of the petition and alleged the truth to be that he was the lawful son of Mary Pool and her husband, Philander Pool.
The court found from the evidence that there was no equity in the complaint of Mary Pool, and it was decreed that it should be dismissed for want of equity. No appeal was taken from this decree.
On the 8th day of April, 1918, Philander Pool and Mary Pool, his wife, for the consideration of $2,500 paid by A. H. Eversmeyer, conveyed to him by warranty deed the 220 acres of land involved in this suit. This deed was duly filed for record on April 16, 1919.
On the 6th day of November, 1919, A. H. Eversmeyer and Hattie Eversmeyer, his wife, for the consideration of $1,000 paid by P. F. Hein, conveyed to him by warranty deed the 220 acres of land involved in this suit. This deed was duly filed for record on the 16th day of February, 1920. On the 5th day of November, 1919, Nannie L. Mason, who was the daughter of Philander Pool by a former wife, executed a quitclaim deed to Mary Pool to the 220 acres of land involved in this action. This deed was duly filed for record on the 16th day of February, 1920.
On the 27th day of November, 1915, William B. H. Pool executed a quitclaim deed to his wife, Jessie G. B. Pool, to the 220 acres of land in this suit. This deed contained a proviso that she was to make a deed to Jas. H. McCollum to the south 80 acres for defending the title to said lands. This deed was filed for record on December 1, 1915.
On July 1, 1916, William B. H. Pool and Jessie G. B. Pool, his wife, executed a warranty deed to Jas. H. McCollum to said 80 acres of land which is also involved in this suit.
The record shows that Philander Pool is now dead. The evidence as to whether or not William B. H. Pool was born as the fruits of the marriage of Philander Pool and Mary Pool will be stated and discussed under an appropriate heading in the opinion.
On the 6th day of November, 1924, a decree was entered of record in which the court found that Philander Pool was dead; "that Mary Pool was 80 years of age; that William B. H. Pool was, at the time of the execution of the Billingsley deed and at the time of the filing of the suit herein and at the time of the trial, the only child of Mary Pool; that plaintiff was the owner of the 80 acres of land described in the complaint, and Jessie G. B. Pool was the owner of the...
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