Lacotts v. Quertermous

• Decision Date: 25 November 1907
• Parties: LACOTTS v. QUERTERMOUS
• Court: Arkansas Supreme Court

107 S.W. 167

84 Ark. 610

LACOTTS v. QUERTERMOUS

Supreme Court of Arkansas

November 25, 1907

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

Appellants pro se.

1. There is no estoppel as against an infant, and neither a married woman nor an infant is estopped by mere silence. 61 Ark. 61 ; 62 Ark. 319; 30 Ark. 385; 40 Ark. 26. But the plaintiff, appellee here, is estopped by reason of her failure to take steps to protect her rights as widow for ten years.

2. Appellee is further estopped, and will be held to have waived her dower rights in the Wolfe Point land, by executing a deed conveying the fee therein, without reserving her dower. 31 Ark. 110; 51 Ark. 419; 53 Ark. 107.

3. One can not avail himself of the betterment act except under color of title; and, even if the act giving the widow the option of taking a child's part had not been declared invalid, still the act was not complied with By filing relinquishment of dower within sixty days as required, and there having been no administration, the probate court was without jurisdiction to grant such an order. Appellee was therefore without color of title, and can not claim the benefit of betterment. 55 Ark. 369; 33 Ark. 490; 47 Ark. 62; Id. 28; 48 Ark. 183; 67 Ark. 184.

4. Appellee can claim no benefit by reason of the note and mortgage executed by her to B. F. Quertermous prior to her marriage to him. 64 Ark. 381.

5. Delivery of a deed to a father for a minor is sufficient. 63 Ark. 374; Tiedeman, Real Prop. § 814. Time of delivery is the date of the deed. 61 Ark. 104.

John F Park, H. Coleman, and Campbell & Stevenson, for appellee.

1. Appellant, by demanding and accepting one-third of the proceeds of the Wolf Point land, was estopped to disaffirm the agreement and the probate judgment whereby appellee's dower interest therein was exchanged for the twenty-acre tract. 22 Cyc. 549; 77 Tex. 240; 14 Ia. 310; 24 Ia. 118; 19 Pa.St. 424; 53 Pa.St. 349; 45 Miss. 542; 51 Miss. 166; 42 Miss. 471; 12 Heisk. 436; 64 Ala. 411; 88 Ky. 515. Where a former infant seeks to evade responsibility for acts of affirmance creating an estoppel, done after reaching-majority, the burden is upon him to show such fraud or mistake as will defeat a contract between adults. Cases supra.

2. That the deed of appellant to her infant child was executed under duress, the evidence is conclusive. Duress exists, and will avoid an act done under its influence, whenever by the wrongful acts of another a person is so put in fear or under compulsion that he does an act at the dictation of another which, left free to act, he would not have done. 14 Cyc. 1123; 47 L. R. A. 417; III Ala. 456; 64 S.W. 329. The evidence also clearly shows that there was never a delivery of the deed.

OPINION

BATTLE, J.

Willie I. Quertermous, insisting that the defendant, Ethel LaCotts through whom her co-defendant and child, Ethelbert LaCotts, claims, was estopped from claiming any interest in the land in controversy, asked the court to declare the interest of the parties named in the land, and, in the event it found that the defendants had any interest, to partition it (land) between them according to their respective interests. The facts in the case are substantially as follows:

W. S. Quertermous died intestate in 1887, leaving Willie I. Quertermous, his widow, and Elizabeth Quertermous, Ethel LaCotts, born Quertermous, and W. S. Quertermous, Jr., his heirs him surviving. He died seized of two tracts of land in Arkansas County, in this State, one containing 480.50 acres, which for convenience we will call the "Wolfe Point land," and one containing twenty acres and lying near the town of DeWitt, which for convenience we will call the "20-acre tract."

All of this land, at the time of the death of the intestate, was wild and unimproved.

Mrs. Quertermous married B. F. Quertermous, the brother of her first husband. Being advised that she could take a child's part in the estate of her deceased husband, under section 2599 of Mansfield's Digest, instead of dower, she, on the second day of June, 1891, relinquished in legal form all her right, claim or possibility of dower in her first husband's estate, and elected a child's part. Pursuant to such statute, she then filed a petition in the Arkansas Probate Court, to which her children, Elizabeth, W. S., Jr., and Ethel, were made defendants, asking that she be given a child's part, or one-fourth interest, in the lands above described in fee simple. The petition was granted, and commissioners were appointed to set apart to her one-fourth interest or child's part in the two described tracts of land, there being no other property belonging to her deceased husband. They set apart to her the "20-acre tract" of land as her fourth part, and made report to the court accordingly, and it confirmed the report, and by order entered of record vested in plaintiff in fee simple the tract so set apart. The three children were parties to all these proceedings, and were represented by a guardian ad litem.

B. F. Quertermous, for his wife, the plaintiff, at once began the erection of a dwelling house and the other improvements on the tract set apart to her. In 1894 the Supreme Court of this State, in Mack v. Johnson, 59 Ark. 333, 27 S.W. 231, held that section 2599 of Mansfield's Digest was repealed by the Constitution of 1864. Many of the improvements had been made at the time of this decision. The three children, although minors, in consideration of their mother's relinquishment of dower, agreed with her, the plaintiff, that when they arrived of age they would convey to her their respective interests in the twenty acres assigned to her. In compliance with this agreement two of the children, Elizabeth Quertermous and W. S. Quertermous, Jr., severally conveyed their interests in the land to their mother as each arrived at majority. But Ethel, having eloped, married J. C. LaCotts, on the 3d day of December, 1898, against the will of her mother, when she was a few days over the age of seventeen years. On account of this marriage Ethel and her mother were for a time estranged; and her husband was deeply prejudiced against her. But Ethel had, nevertheless, expressed a willingness and desire to carry out her agreement after arriving at majority, but was prevented by the threats of her husband.

On the 23d day of October,...