Graham v. Quarles
| Decision Date | 10 January 1944 |
| Docket Number | 4-7192 |
| Citation | 176 S.W.2d 703,206 Ark. 542 |
| Parties | Graham v. Quarles |
| Court | Arkansas Supreme Court |
Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor.
Reversed.
O C. Brewer and Geo. K. Cracraft, for appellant.
Dinning & Dinning, for appellee.
OPINION
On January 22, 1928, Clarence Quarles, being then the owner thereof, conveyed the real property involved in this controversy to his daughter, appellant, Josie Quarles Graham. Some two months thereafter, to-wit, on March 26, 1928, John M. Quarles made, executed and delivered to his wife, appellee, Virginia G. Quarles, a deed by which for a recited consideration of $ 1,000 he did "grant, bargain, sell and convey unto the said Virginia G. Quarles, and unto her heirs and assigns forever, the following tracts, lots or parcels of real estate, situated in Phillips county, Arkansas, to-wit: All my right, title and interest in and to" -- then follows a description of lands, which the parties agree are the same as those conveyed by Clarence Quarles to his daughter, the appellant, on January 22, 1928.
Clarence Quarles died June 6, 1930, leaving surviving him as his only heirs at law his daughter, the appellant, and his son, John M. Quarles, husband of appellee, and brother of appellant.
On June 17, 1930, ten days after the death of their father appellant conveyed to her brother an undivided one-half interest in the lands conveyed to her by their father on January 22, 1928. This deed recited that it was executed "for the purpose of effecting a division of the lands . . . in accordance with the interests of the respective parties."
On February 19, 1943, appellee, Virginia G. Quarles, instituted this suit against appellant, Josie Quarles Graham, seeking partition of the lands, and among other things alleged in her complaint "that the said Virginia G. Quarles and Josie Q. Graham are owners and tenants in common" of the lands involved.
Answer and cross-complaint filed by appellant specifically denied that Virginia G. Quarles was the "owner of an undivided half interest in the real estate set forth in the complaint," and contained allegations to the effect that: (1a) the deed executed by Clarence Quarles to appellant was made to her as trustee to secure an indebtedness due by her father to her husband, Edgar Graham; (1b) at the time of the conveyance to her brother, John M. Quarles, he was fully informed as to the existing debt in favor of Edgar Graham, and the trust relationship occupied by appellant, and that he accepted said conveyance subject to the lien of the indebtedness due to Edgar Graham; (2) that from time to time between the date of the conveyance by appellant to John M. Quarles on June 17, 1930, to the date of the filing of the answer and cross-complaint appellant and her husband, Edgar Graham, had made certain advancements to John M. Quarles, which he agreed should constitute a lien against the one-half interest in the property so conveyed to him by appellant on June 17, 1930, and that appellee, Virginia G. Quarles, was at all times cognizant of such agreements and understandings, and fully acquiesced therein to such an extent that she would be estopped to assert that such understandings and agreements were not binding as against her interest in such property; (3) that in 1934, by agreement of the parties, appellant was put in complete control and possession of the property, for the purpose of operating the same and satisfying the indebtedness due by John M. Quarles to appellant and her husband, Edgar Graham, and that since that time she has been, and is now, in possession thereof under such agreement; (4) attached to the cross-complaint, as an exhibit thereto, there appears a statement of accounts headed "Edgar and Josephine Quarles in account with estate of Clarence Quarles, John M. Quarles, and Virginia Quarles." Such account purports to cover a period of time from June 23, 1930, to and including March 2, 1943. An examination of this account indicates that a great portion thereof is made up of items relating to rents and profits collected from, taxes paid on and sums expended for improvement, repair and upkeep of the property involved in this suit.
To this answer and cross-complaint appellee (plaintiff below) Virginia G. Quarles, filed a general demurrer, and the chancellor after consideration thereof sustained the same and, the appellant refusing to plead further, her answer and cross-complaint were dismissed and a decree directing a partition of said property and appointing commissioners to effect the same was entered. From this decree appellant has prosecuted this appeal.
In the case of Phillips v. First National Bank of Van Buren, 179 Ark. 605, 17 S.W.2d 298, we quoted the language of Mr. Justice Riddick in the case of Eagle v. Franklin, 71 Ark. 544, 75 S.W. 1093, as follows: "'To entitle one to have partition of lands, he must not only have title, but must have possession, either actual or constructive, of the lands which he asks to have partitioned'." In the case of Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S.W. 785, the plaintiff's prayer for partition was denied on the ground that it had failed to establish title in itself to an undivided interest in the real estate involved in the controversy.
The rule announced by this court appears to be in conformity with the rule adopted by all courts which have had occasion to consider the question. At 47 Corpus Juris, p. 300, we find the following statement:
Many cases supporting, but none contrary to, the text appear in the footnotes.
If then only those having interest in the property may bring a suit for partition, it logically follows that it is necessary that the plaintiff allege that he holds title to an interest in the property, and such we find to be the universal rule, which is stated at 47 Corpus Juris, p. 403, as follows: "Since only those having title are entitled to partition either in a court of law or equity and the title must be to an undivided interest in the land, it is necessary for the bill, complaint, or petition to allege title in plaintiff, and that such title is to an undivided interest in the lands sought to be partitioned."
Counsel for appellee fully recognizing that an allegation that she was the...
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...717; McAdow v. Black, supra; Gibson v. Morris State Bank, supra; Compare McAboy v. Packer, 353 Mo. 1219, 187 S.W.2d 207; Graham v. Quarles, 206 Ark. 542, 176 S.W.2d 703; Greek Catholic Congregation v. Plummer, 338 Pa. 373, 12 A.2d 435, 127 A.L.R. The deed to the Butte Copper King Mining Co.......
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...Title to the property never did vest in any of the administrators to this estate. As we said in the case of Graham v. Quarles, 206 Ark. 542, pp. 545-546, 176 S.W.2d 703, p. 705: 'The rule announced by this court appears to be in conformity with the rule adopted by all courts which have had ......