Lesieur v. Spikes

• Court: Arkansas Supreme Court
• Writing for the Court: KIRBY, J.
• Citation: Lesieur v. Spikes, 117 Ark. 366, 175 S.W. 413 (Ark. 1915)
• Decision Date: 15 March 1915
• Docket Number: 249
• Parties: LESIEUR v. SPIKES

175 S.W. 413

117 Ark. 366

LESIEUR v. SPIKES

No. 249

Supreme Court of Arkansas

March 15, 1915

Appeal from Randolph Circuit Court; John W. Meeks, Judge; reversed.

STATEMENT BY THE COURT.

Plaintiffs brought an action of ejectment for certain lands in Randolph County, claiming to be the owners of two-thirds thereof as children and heirs of their mother, Dixie LeSieur, who died in 1900, leaving surviving her, plaintiffs and Ethel Cowdry her only heirs at law.

Defendant denied that plaintiffs were the heirs of said Dixie LeSieur and that he was in the unlawful possession of the property and alleged further that Sarah C. Fisher, who is also grantor of Dixie LeSieur, the mother of plaintiffs, on the 8th day of February, 1882, executed a warranty deed to the land to one Jabez C. Smythe and on the same date Dixie LeSieur executed a quitclaim deed to said Smythe, and that the defendant claims title to said lands by mesne conveyances from Smythe.

The answer also pleads the statute of limitations and that defendant had made valuable improvements on the land and paid the taxes thereon since February 8, 1882.

The case was tried on the following agreed statement of facts:

1. That Sarah C. Fisher is the common source of claim of title of plaintiffs and defendant herein to the land in controversy.

2. That on the 11th day of March, 1879, the said Sarah C. Fisher deeded said land to "Dixie LeSieur and the legal heirs of her body," the habendum clause in said deed reading as follows, 'To have and to hold the same unto the said Dixie LeSieur and the legal heirs of her body, and in the event that the said Dixie LeSieur should die without leaving any legal heirs of her body surviving her, then in that case the above described property shall revert to the said Sarah C. Fisher, grantor herein, or the legal heirs of her body."

3. That on the 8th day of February, 1882, the said Sarah C. Fisher executed a warranty deed for said land to one Jabez C Smythe.

4. That on the same day the said Dixie LeSieur executed a quitclaim deed to the said Jabez C. Smythe for said land.

5. That the defendant, W. R. Spikes claims title to the said land by mesne conveyances from the said Jabez C. Smythe.

6. That Dixie LeSieur died on the .... day of ...., 1900, and left surviving her as the only legal heirs of her body these plaintiffs, and one Ethel Cowdry.

7. That the defendant and those under whom he claims title to said land have been in the possession of said land from the 8th day of February, 1882.

8. That the defendant has paid taxes on said land since the death of Dixie LeSieur, amounting to $ .... (whatever records show.)

9. The defendant has been in possession of the said property from the death of the said Dixie LeSieur, and that the rent from the property from the date amounts to: first seven years $ 42-2/3 a year, and for the last six years, $ 56 a year, that is, the rental value of a two-thirds interest in same.

10. That the ages of these plaintiffs are as follows: J. V LeSieur, is of the age of twenty-two years and Dolph LeSieur is an infant of the age of nineteen years, and that J. W. Shannon is duly and legally authorized to appear as next friend for the infant, Dolph LeSieur.

The cause was submitted to the court without a jury, and it refused all the declarations of law asked by plaintiffs; held that they were barred by the statute of limitations and rendered judgment in favor of the defendant, from which this appeal is prosecuted.

Judgment reversed and cause remanded.

W. L. Pope, for appellant.

1. Appellants rely for their title upon the statute, Kirby's Dig., § 735, and decisions of this court based thereon. 44 Ark. 458; 67 Ark. 517; 95 Ark. 18; 98 Ark. 570; 72 Ark. 336.

While there is some authority for the court's holding that the fee to the land remained in the original grantor, the weight of opinion is decidedly against it. 4 Kent, Com. 258, 260; 78 Ky. 410; 38 L. R. A. 679.

2. The statute of limitations does not begin to run against a remainderman until the death of the life tenant. 58 Ark. 510; 60 Ark. 70; 69 Ark. 539; 97 Ark. 33.

S. A. D. Eaton, for appellee.

1. The fee to the land remained in Sarah C. Fisher, in the conveyance to Dixie LeSieur. 39 S.W. 525; Williams on Real Property, (4 ed.) 256; Washburn, Real Prop. 560; Tiedeman, Real Prop. 411; 67 Ark. 517; 2 Blackstone, 112; 16 Cyc. 608. And her deed to Smythe conveyed to him the ultimate fee, or reversion in the land. Supra; 2 Blackstone, 175; 16 Cyc. 662. This estate was subject to the contingency of heirs of the body of Dixie LeSieur; but the deed of the latter to Smythe conveying to him her life estate, caused the life estate and the estate in fee to reunite in the same individual, thereby defeating the contingent remainder. 2 Washburn, Real Prop. 638; Tiedeman, Real Prop. 421; Crabb, Real Prop. 2344; Williams, Real Prop. 270; 16 Cyc. 656.

2. Appellants are barred by the statute of limitations, appellee and his grantors having been in adverse possession of the land for more than seven years prior to the death of Dixie LeSieur, and for more than seven years thereafter. Appellants can not tack their disability of coverture. If the fee passed from Sarah C. Fisher at the time she executed the deed to Mrs. LeSieur, the possession of appellee and his grantors was necessarily adverse. 46 Ark. 438; 25 Cyc. 1270.

OPINION

KIRBY, J., (after stating the facts).

The agreed statement of facts shows that Sarah C. Fisher was the common source of title, that she conveyed the lands on March 11, 1879, to Dixie LeSieur, "and the legal heirs of her body;" that she later on February 8, 1882, conveyed the lands by warranty deed to Jabez C. Smythe, defendant's grantor and that plaintiffs mother, Dixie LeSieur on the same date, before they were born also made him a quitclaim deed to the lands. Their mother died in 1900, leaving them surviving two of the three legal heirs of her body, they being of the ages of nineteen and twenty-one years at the beginning of the suit. The defendant, was and had been in possession of the land, the rental value of which was shown since the death of their mother, Dixie LeSieur.

The conveyance from Sarah Fisher to Dixie LeSieur, the mother of appellants, "and the legal heirs of her body" created an estate-tail under the common law, which by our statute and decisions is changed to an estate for life...