Johnson v. Cheek

• Decision Date: 10 March 1924
• Docket Number: 228
• Citation: Johnson v. Cheek, 259 S.W. 368, 163 Ark. 176 (Ark. 1924)
• Parties: JOHNSON v. CHEEK
• Court: Arkansas Supreme Court

259 S.W. 368

163 Ark. 176

JOHNSON v. CHEEK

No. 228

Supreme Court of Arkansas

March 10, 1924

Appeal from Hot Spring Circuit Court; T. E. Toler, Judge; affirmed.

Judgment affirmed.

H B.Means, for appellant.

It was error to refuse to give instruction No. 1, requested by the plaintiff.Having alienated all rights she had to the homestead by warranty deed, she had no more right to maintain an action for rent of the place than any other stranger would have had.Tiedeman, Real Property, § 163; Waples on Homestead and Exemption, 484;28 Ark. 286;53 Ark. 109.The doctrine of estoppel would preclude her from any claim to the house and land, so long as her deed was not set aside by some court.14 L. R. A. (N. S.) 515, note;L. R. A. 1915A, 201;Id. 1917D, 230;92 Ark. 316;79 Ark. 111;62 Ark 57;80 Ark. 8.

D D. Glover and D. M. Halbert, for appellee.

Appellant's counsel has proceeded on the theory that he could try the title of plaintiff to the house and lot, in the justice of the peace court, or in the circuit court on appeal.That he could not do.C. & M. Digest, § 6399;art. 7, § 40, Constitution;31 Ark. 222;36 Ark. 561;38 Ark. 200;94 Ark. 276;95 Ark. 43;98 Ark. 495;106 Ark. 74.

OPINION

SMITH, J.

This suit originated in the court of a justice of the peace, where appellee filed a complaint in which she alleged that, on or about February 26, 1920, she had rented appellant a house for $ 5 per month, and that appellant had occupied it for two years, and owed a balance of $ 90 rent, for which she prayed judgment.

Appellant filed an answer in which he denied that he had ever rented the place or had occupied it.He alleged the fact to be that, at appellee's request, he found a tenant for her, who was placed in possession, and from whom he collected the rent during the time of his possession, and that he paid appellee the rent so collected.

The statement of the pleadings presents the principal issue in the case, which is, of course, one of fact, and appellant's defense was submitted in an instruction which told the jury, if they found from the evidence that appellant was only acting as agent for appellee, and paid over to her all rent collected, to find for him.

The testimony is sharply conflicting on this issue, and was ample to support a finding either way, but, inasmuch as there was a verdict for appellee--the plaintiff-- we must assume that the jury accepted as true the testimony tending to show that appellant himself became appellee's tenant and that the relation of landlord and tenant was thereby created.

Testimony was admitted tending, on the one hand, to show that, prior to February 26, 1920, appellee had conveyed the land on which the house stood to her brother-in-law, and, on the other hand, that the deed was intended only to effect a family settlement whereby the estate of her first husband's father was divided, but was not intended to convey the title to the house.

After admitting this testimony, the court refused to give, at appellant's request, an instruction numbered 1, reading as follows: "The court instructs the jury that, if you find from the evidence in this case that the plaintiff, prior to February 26, 1920, deeded all her rights, title and interest in the tract of land upon which the house in question is located to John Wallace, and in said deed released her dower and homestead, she would have no recoverable interest in said house, and your verdict will be for the defendant."

There was no testimony that appellant was ousted from his possession; on the contrary, he voluntarily abandoned the possession.This being true, the instruction was properly refused.If his possession was undisturbed, and was referable to his tenancy--and the jury so found--then he could not defeat the suit for rent by showing that his landlord did not own the property.

Appellee sold appellant the timber on an eighty-acre tract of land and her testimony was to the effect that appellant stated to her that he desired the use of the house for employees who would be engaged in removing the timber, and that he rented the house for the time required for that purpose, which he estimated at six months.Other witnesses who testified in appellee's behalf stated that they had heard appellant say he had rented the house for two years.As has been said, appellant denied that he had rented the house at all, but he asked the court to give an instruction numbered 2, reading as follows: "You are...