Jackson v. Lady
| Decision Date | 17 November 1919 |
| Docket Number | (No. 207.) |
| Citation | 216 S.W. 505 |
| Parties | JACKSON v. LADY. |
| Court | Arkansas Supreme Court |
Suit by Mary F. Jackson and Victoria Phelps against H. L. Lady for an injunction and to quiet title. Upon the death of Victoria Phelps, the cause was revived in the name of her coplaintiff. A decree dismissing the complaint and for defendant was rendered, and plaintiff appeals. Affirmed.
W. A. Cunningham, of Walnut Ridge, for appellant.
W. M. Ponder and Ponder & Gibson, all of Walnut Ridge, for appellee.
This action was instituted by Mary F. Jackson and Victoria Phelps against the appellee in the chancery court of Lawrence county on the 2d of October, 1917.
The plaintiffs alleged that they were the owners in common of certain tracts of land in Lawrence county which they described in their complaint and which contained in the aggregate 89.26 acres more or less. They alleged that their father, Henson Kenion, devised the land described to Emeline Owens, who immediately upon the death of her father entered into possession and remained in possession of the lands until her death; that at her death the plaintiffs entered into possession of the same claiming to be the owners thereof by inheritance from their sister; that the defendant Lady, claiming to have some kind of title or interest in the lands, had attempted to enter upon the same, and was now threatening by force or stealth to enter upon the lands for the purpose of taking possession thereof. They prayed that the defendant be enjoined and that their title be quieted.
The defendant answered admitting that Henson Kenion was the father of the plaintiffs and that he had executed a will as set up in the complaint and that he had died. He admitted that Emeline Owens, later Lady, later Bush, had died; but he denied that plaintiffs were her sole heirs at law, and denied that plaintiffs had entered into possession of the lands claiming it as the heirs of their sister. He admitted that Emeline Owens went into the possession of the land after her father's death, but denied that her possession was adverse to him. He alleged that in the year 1870 J. M. Phelps and Henson Kenion were in business as partners; that Kenion died in 1877 never having settled the partnership accounts, and that Phelps brought suit against his administrator and heirs for $8,100; that defendant, who in the meantime had married Emeline Owens, and J. M. Phelps, the husband of Victoria Kenion, settled the lawsuit after the same had been discussed by all the parties and the desire had been expressed by them for such settlement; that by this settlement defendant contracted to buy the lands devised to Victoria Phelps by her father, including the lands in controversy and 60 acres more which had been devised to Emeline Owens; that in pursuance of the agreement Phelps and his wife, Victoria, on October 28, 1884, executed their bond for title which was made an exhibit to the answer, and defendant executed notes in the sum of $3,600, the purchase money, as the consideration of the settlement; that Phelps was to dismiss and did dismiss, the lawsuit; that afterwards the defendant carried out the settlement on his part by making full payment of all the notes, and that Phelps and Victoria Phelps by their warranty deed duly conveyed to the defendant all the lands embraced in the settlement including the lands in controversy; that the deed from Phelps and wife was executed in pursuance of the terms of the title bond and for the purpose of giving force and effect thereto; that by virtue of the execution of the instruments and the death of Emeline Bush, without bodily heirs, the defendant became the owner in fee of the undivided one-half interest in the lands in controversy and is entitled to the possession thereof.
Defendant further alleged that the heirs of Henson Kenion who were living at the time of the above settlement and of the execution of the bond for title and deed in pursuance thereof were fully advised of the purposes of the settlement which resulted in the dismissal of the lawsuit, and that by reason of the execution and delivery of the title, bonds, and deeds, and settlement of the lawsuit and family dispute, they are now in equity and good conscience estopped from making any claim to the lands in controversy.
The defendant prayed that plaintiffs be denied the relief sought; that the lands be partitioned; that his title be quieted; and "for all other proper, general and specific, legal and equitable relief."
After the institution of the suit, Victoria Phelps died intestate, leaving Mary F. Jackson her coplaintiff and sole heir at law and in whose name the cause was revived and proceeded to trial.
The cause was heard upon the pleadings and the exhibits thereto and upon depositions, and the court found that the defendant was the owner and entitled to the possession of the undivided one-half interest of that part of the S. E. ¼ of the N. W. ¼ of section 21, township 16 north, range 1 west, lying south and east of the private survey No. 36 and containing 9.26 acres more or less, and the S. ½ of the N. E. ¼ of section 21, township 16 north, range 1 west, containing 80 acres more or less.
The court entered a decree dismissing the complaint for want of equity and in favor of the defendant according to the above finding, from which decree is this appeal.
The facts are substantially as follows: Henson Kenion died in 1877, leaving a will by which he divided his lands, amounting to 455 acres, among his three daughters, Emeline Owens, Mary F. Vinson, and Victoria Phelps. The devise to Mrs. Owens contained the clause:
"To have and to hold the same to her the said Emeline Owens, and unto her heirs and assigns and to their proper use and behoof forever; provided, however, that if the said Emeline Owens should die leaving no bodily heirs the above lands to revert to her sisters, Victoria Phelps and Mary Vinson or to their heirs."
The lands devised to Emeline consisted of 146.26 acres.
Appellee in 1881 married Emeline Owens formerly Kenion. At the time of this marriage a lawsuit was pending between J. M. Phelps and the estate of Kenion in which the administrator and heirs of Kenion were made parties defendant.
J. M. Phelps had married Victoria Kenion. Phelps and Kenion had been engaged in a partnership business. For some reason Phelps left the state, and during his absence Kenion died. On Phelps' return to the state, he claimed that on an accounting of the partnership business the estate of Kenion was due him a balance of $8,100, and this claim was disallowed by the administrator, and Phelps instituted a suit in the chancery court to recover that amount.
The appellee testified that this suit was discussed frequently among the Kenion heirs. They desired a settlement. Two or three years after the appellee's marriage with Emeline, the suit was settled by appellee and Jim Phelps. It was understood between Phelps and the appellee that if the appellee would buy out the interest of Phelps' wife in the estate he would dismiss the suit. By the terms of the settlement and agreement, Phelps was to buy 60 acres of the land which had been willed by Kenion to his daughter Emeline and deed the same to the appellee. Appellee was to pay $3,600 as the consideration and was to get 180 acres of land that belonged to Victoria Phelps individually in addition to the 60 acres that had been willed by Kenion to his daughter Emeline and also the undivided one-half interest of Mrs. Phelps in the other land devised by Kenion to his daughter Emeline, which it was supposed belonged to Mrs. Phelps at Emeline's death.
Concerning the 60 acres, the understanding was that the appellee was to get an immediate fee title, and hence a deed to this 60 acres was executed to Phelps by appellee and his wife and by Mary Vinson and her husband, E. A. Vinson. The reason this was done they considered that all the land devised to Emeline belonged to her for her life and at her death it went to her sisters. The two sisters signed the deed to Phelps in order that, when he signed the deed to appellee, appellee would have the fee title to all the lands owned by Victoria Phelps, including the 180 acres willed to her in her own right and the one-half interest in remainder which they supposed she had in the lands devised to her sister Emeline for life.
On the same day that the deed to the 60 acres was executed by Emeline Lady and the appellee and Mary Vinson and her husband to Phelps, Phelps and his wife executed a bond for title to all the lands covered by the agreement except the 60 acres.
The bond for title recited that in consideration of the sum of $3,600 evidenced by promissory notes to be paid by H. L. Lady, in four installments of $900 each, to J. M. Phelps and Victoria Phelps, the latter upon the payment of said notes "would make and execute to him, Lady, a good and sufficient deed of conveyance" to the lands described in the bond. Among other lands described in the bond are the lands in controversy. The deed to the 60 acres was of date October 21, 1884, and the bond for title was dated October 22, 1884.
Then after describing certain lands, is this further recital:
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