Green v. Maddox

• Court: Arkansas Supreme Court
• Citation: Green v. Maddox, 134 S.W. 931, 97 Ark. 397 (Ark. 1911)
• Decision Date: 30 January 1911
• Parties: GREEN v. MADDOX
• Writing for the Court: FRAUENTHAL, J.

134 S.W. 931

97 Ark. 397

GREEN v. MADDOX

Supreme Court of Arkansas

January 30, 1911

Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor reversed.

Decree reversed and cause remanded.

B. H Crowley, for appellant.

1. If the creation of a trust is not manifested by any writing and no fraud has been practiced in obtaining the title, the trust must arise from the payment of the purchase money, and not from any agreement. 50 Ark. 76; 13 Ark. 183; 75 Ark. 40; 76 Ark. 14; 49 Ark. 416; 72 Ark. 456; Tiedeman, Real Prop. 500; 4 Ballard, Real Estate, 738.

2. When J. D. Maddox, by order of the chancery court, paid off the note of Henry Maddox, he was subrogated to all the rights of creditors or heirs. 24 Ark. 63; 52 Ark. 1; 6 Ballard, Real Estate, 279; 2 Id. 535; 73 Ark. 197; 120 U.S. 595; 44 Ark. 504; Kirby's Dig., § 510.

3. The court erred in crediting appellee with all rents received from the property. Kirby's Dig., §§ 2754-2757; 45 Ark. 410; 48 Ark. 186. In the event of recovery by plaintiff, mesne profits are not recoverable except such as have accrued within three years next before the commencement of the action. Kirby's Dig., §§ 2726, 2754 2456; 51 Ark. 278; 72 Ark. 453; 85 Ark. 561; 86 Ark. 404-5; 92 Ark. 173, 183.

Huddleston & Taylor, for appellee.

1. Appellee had the right to redeem. The title of Jeff Maddox was not absolute, but one subject to be defeated by the exercise of the right of redemption by the heirs of Henry Maddox. In order to bar the right of appellee to redeem subsequent purchasers from Jeff Maddox must show that they were purchasers without notice. This could not be done because by reason of their relation to him, they are, under the law, charged with notice of any defects in his title. Devlin on Deeds, § 728; 1 Cyc. 615c; 16 Cyc. 686 and cases cited in note; 43 Ark. 464; 37 Ark. 571; 29 Ark. 651; 10 N.E. 616; 15 Pet. 93; 23 N.E. 754. See also 22 Cyc. 551; 21 Ark. 592; Rodgers on Dom. Rel., § 745.

2. The statute limiting the rents which may be allowed a plaintiff in an action to recover lands is for the benefit of an occupant of lands "believing himself to be the owner thereof." Kirby's Dig., § 2754 et seq. This is an action to redeem from a lien existing against the land and not an action to determine the ownership of the land, within the meaning of the foregoing statute. But, if the foregoing statutes apply in this case, the appellants cannot avail themselves of the three years' limitation because they failed to plead it. 57 Ga. 539; 29 Cal. 330; 27 Cyc. 1838; Id. 1840; 55 Ark. 1; 21 So. 483.

OPINION

FRAUENTHAL, J.

This was an action instituted by Hayden Maddox, the plaintiff below, seeking, in effect, to establish his title to an undivided one-half interest in a house and lot situated in the city of Paragould, the legal title to which was in the defendants, and to obtain an accounting of the rents and profits issuing therefrom. On November 17, 1888, the commissioner of the Greene Chancery Court, by virtue and in pursuance of a decree rendered in a proceeding pending in that court, sold the land in controversy to one Henry Maddox who executed his note for the purchase money thereof. That sale was duly reported by said commissioner to said chancery court, and was confirmed by said court at its regular March term, 1889. The testimony tends to prove that under said purchase Henry Maddox went into possession of, and either built or commenced the erection of a house upon, said lot. Thereafter, and prior to the maturity of the note which he had executed to said commissioner for the purchase money of said lot, Henry Maddox died, leaving surviving him as his heirs at law the plaintiff and an elder brother, named Donald. At the February term, 1890, of the Greene Chancery Court one J. D. Maddox presented to that court a petition in which he alleged that he was the uncle and guardian of said heirs of Henry Maddox, deceased, and that there were no funds of said decedent's estate out of which to pay the commissioner for the purchase money of said lot sold to Henry Maddox, and that he had paid same out of his own funds. He asked an order of said court directing the commissioner for that reason to execute to him a deed for the lot. The chancery court thereupon made an order directing that the commissioner execute a deed for the lot to said J. D. Maddox, but therein it was expressly provided that there was reserved to said Hayden and Donald Maddox the right to redeem said land by paying the amount of said note executed by their father to said commissioner therefor with lawful interest at any time before they arrived at the age of 24 years. Thereupon the commissioner executed to said J. D. Maddox a deed for said lot in which it was recited that the lot had been sold to Henry Maddox, who died before the maturity of the note given for the purchase money thereof, leaving the plaintiff and his brother as his minor heirs, and that J. D. Maddox, their guardian, had paid the purchase money therefor out of his own means; and, after making specific reference to the page of the record containing the order of the court directing the execution of a deed to J. D. Maddox with the rights of said minor heirs reserved, the deed further recited that the commissioner executed the deed to said J. D. Maddox "with the privilege granted said minors to redeem said lot within three years after their majority on paying the purchase money on said lot with lawful interest." This deed was dated on May 27, 1890, but was never filed for record until May 11, 1908, and after the institution of this suit.

It appears that on December 30, 1890, the lot was levied upon as the property of J. D. Maddox and sold by the sheriff of said county to satisfy an execution in favor of a judgment creditor of said J. D. Maddox, and that a sheriff's deed was executed in pursuance of said sale to the purchaser of said lot thereunder. The defendants claim title to the lot by mesne conveyances running back to the said purchaser at said sheriff's sale, and under said deeds they and their grantors made valuable and permanent improvements on the lot. At the time of the institution of this action Hayden Maddox was less than and his brother was more than 24 years old, and this suit proceeded solely in the name of said Hayden Maddox. The chancery court entered a decree declaring the plaintiff to be the owner of an undivided one-half interest in the lot and entitled to an accounting as to the rents and profits issuing therefrom. It thereupon appointed a master to make and state an account between the plaintiff and the defendants, and directed that therein the plaintiff should be charged with the amount necessary to pay his portion of the purchase money advanced by J. D. Maddox with interest and the value of all improvements placed upon the land by the defendants and those under whom they claimed title, together with legal interest thereon and with all taxes and assessments paid by them together with interest thereon; and also directed that the defendants should be charged with all rents and profits issuing from said land from the date of said deed to said J. D. Maddox together with interest thereon. The master made a report in accordance with said directions, which was by the court approved, and a decree entered in conformity with such findings. From this decree the defendants have appealed to this court.

The title of the parties to the land involved in this suit depends upon the rights and interests which the plaintiff and J. D. Maddox acquired under the sale thereof made by the chancery court and the deed executed by the commissioner therefor to said J. D. Maddox, because the title of plaintiff is derived from the sale made under the decree of said court and said deed and that of defendants is deraigned through said J. D. Maddox, who held under said deed. When the commissioner made a sale of said land under the decree of said chancery court to Henry Maddox, and that sale was duly confirmed by that court, a binding contract for the sale and purchase of said land was entered into, and the relation of vendor and vendee was constituted. The commissioner, representing it is true the court, became a trustee of the title for the purchaser, for after the confirmation of the sale Henry Maddox had the equitable title to the land as a purchaser thereof, which could be lost only by a reversal of said order of confirmation upon appeal or by a foreclosure of the lien for the purchase money agreed to be paid by him, or by an order directing a resale of the land on account of its nonpayment. 24 Cyc. 49. In the case of Stubbs v. Pitts, 84 Ark. 160, 104 S.W. 1110, it is said: "The moment that a contract for the sale and purchase of land is entered into and the relation of vendor and vendee is constituted, the vendor becomes...