McDonald v. Kenney

• Decision Date: 13 November 1911
• Parties: MCDONALD v. KENNEY
• Court: Arkansas Supreme Court

140 S.W. 999

101 Ark. 9

MCDONALD v. KENNEY

Supreme Court of Arkansas

November 13, 1911

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; reversed.

Decree reversed and cause remanded.

Winchester & Martin, for appellant.

1. The chancellor can not arbitrarily disregard the findings of fact by the master. The conclusions reached by a master upon conflicting testimony have every reasonable presumption in their favor, and will not be set aside or modified unless there clearly appears to have been error or mistake on his part. 125 U.S. 136; 92 Ark. 361-363. But where, as in this case, the master was appointed by consent of the parties, not only does the presumption of the correctness of the master's findings prevail, but "his findings of fact are entitled to the same conclusiveness as is given to the verdict of a jury or the findings of fact by a court sitting as a jury." 91 Ark. 298; 85 Ark. 419; 74 Ark. 338.

2. Appellees are not entitled to credit for the taxes paid upon their respective lots from the death of John Hare to the date of their respective purchases. The taxes on these lots were paid by Mary A. Hare during her lifetime and by her administrator until, by orders of the probate court, they were sold to pay debts of Mary A. Hare and legacies under her will. Appellees are purchasers at a judicial sale, and are not in such privity with Mary A. Hare as, under the terms and evident intent of the betterment act, to claim under her, or to have entered and hold under her. Kirby's Digest § 2754; 47 Ark. 419; 92 Ark. 173; 86 Ark. 368.

3. The court erred in directing the master to credit Lillie Kenney with six per cent. interest on the value of the improvements made upon her two lots by Mary A. Hare from the date of the purchase of said lots by Lillie Kenney to the date of his report.

Hill Brizzolara & Fitzhugh and Read & McDonough, for appellees.

1. While it is true that when this case was first before the lower court it was agreed by the parties that, in the event it was reversed, the court might refer the question of mesne profits, improvements, taxes, etc., to a master, yet this is not consenting to the appointment of a master, in the sense used in the cases referred to by appellant. In those cases the parties agreed upon the person who should act as master.

Regardless of any agreement the parties may have made, it was proper for the chancery court to retain the case, and after that to appoint a master to state the accounts. 92 Ark. 28.

The report of the master has, at most, no greater force than the verdict of a jury, and yet the lower court has the right where there is a substantial conflict in the testimony, to set aside the verdict of a jury. 91 Ark. 292; 144 U.S. 36 L. Ed., 552, 557; 145 U.S. 132.

2. The requisites of the betterment act, Kirby's Digest, § 2754, under which appellees claim the right to taxes paid by Mary A. Hare and her administrator, are that the persons claiming under it should have had color of title, and peaceably improved the land. In such case they are entitled to the value of the improvements, and to the amount of all taxes which may have been paid on the land by such persons or the persons under whom they claim.

As to the Lillie Kenney property, it was improved by Mrs. Hare after the death of her husband. Clearly under the evidence and the rule established by this court she had color of title, and in making the improvements acted in good faith. 70 Ark. 483.

Appellant can not escape the force of the betterment act on the ground that appellee purchased at the administrators sale. True, the land was sold under order of the probate court, but it was sold as the land of Mary A. Hare, and such title as they have is derived from her.

3. The master erred in his method of calculating interest upon the rents collected in the case of Lillie Kenney. She should have been charged with net rents only, and was entitled to have deducted from the gross rents a fair compensation for necessary time and labor involved in the care and management of the premises and in the collection of rents. 141 Mass. 162; 96 Ark. 188. Moreover, it was erroneous to calculate interest on the rents in monthly periods. Kirby's Digest, § 5386.

FRAUENTHAL J. HART, J., dissenting.

OPINION

FRAUENTHAL, J.

This is the second appeal of this case to this court. The opinion rendered upon the former appeal is reported under the style of McDonald v. Shaw, in 92 Ark. 15, 121 S.W. 935. These suits were originally instituted in the circuit court by Ella Hare, through her guardian, to recover from the respective defendants certain lots situated in the city of Ft. Smith. Subsequently, the suits were consolidated and transferred to the chancery court, where a decree adverse to the plaintiff was rendered. Upon the former appeal, it was decided that Ella Hare was the owner of the lots sued for, and entitled to the possession thereof. The cause was then remanded to the chancery court to adjudicate the rights of the parties to the rents of the lots, the improvements made and the taxes paid thereon. The matters involved on this appeal relate solely to those rights.

The plaintiff asserted title to the lots by inheritance from her father, John Hare, who died on January 2, 1883, seized and possessed thereof. He left a will devising all his property to his wife, Mary Hare, which was declared ineffective, because it omitted to mention the name of his child or to make any provision for her. The will, however, had been duly probated, and Mrs. Hare, believing in good faith that it was perfectly valid and effective in devising to her the absolute title to the lots, took possession and exercised acts of ownership thereof until her death, on September 25, 1892. She made permanent improvements upon some of the lots, and paid taxes on all of them to the date of her death. After her death, her administrator took possession of the lots involved in this litigation, and, under and in pursuance of orders of the probate court, sold and conveyed them to the respective defendants herein.

Upon the first trial of this cause below, the respective parties agreed and stipulated in open court, in effect, "that if the court should find against the said defendants and cross plaintiffs on the issues made by their answers and cross complaints, said causes should then be referred to a master to take testimony as to the mesne profits due the plaintiff, if any, from the said defendants respectively, and as to the amounts due the defendants respectively for improvements made and taxes paid by them, or either of them, upon the property in controversy in said several cases."

When this case was remanded to the chancery court on the former appeal, the matters involving said rents, improvements and taxes were by the court referred to its clerk and master, with directions to take testimony and to ascertain, amongst other things, the fair rental value of each lot for a period of three years next prior to the institution of the suits, the value of the improvements at the time of the recovery, the amount of the taxes paid during each year upon each lot from the date of the death of said John Hare to the filing of his report and by whom, and to report his findings relative thereto. In pursuance of said order and directions, the master took the testimony of numerous witnesses, by depositions relative to all these matters. He filed an original and supplementary report, in which he made findings: (1) of the rental value of each lot claimed and occupied by the respective defendants for three years next prior to the commencement of these suits, and found that such rents were collected monthly. He charged such rents to the respective defendants from their respective purchases during the above period, and also charged said parties with interest on said rents, calculating same from each month, in advance, to the date of said report, and credited them with necessary repairs made by them. (2) He found the value of the improvements at the time of the recovery made upon each lot, and credited each of the defendants with the respective amount thereof. (3) He found the amount of the taxes which each defendant had paid upon his respective lot, and allowed the same as a credit with interest thereon, calculated from the date of each payment to the time of filing his report. (4) He also found the amount of the taxes that had been paid each year on each of said lots by Mrs. Mary Hare and her administrator from the date of the death of John Hare to the time of the respective purchases made by each of the defendants. He, however, made no finding as to whether or not such taxes should be credited to the defendants.

The master thereupon made a statement in accordance with the above findings, showing the amount of the charges and credits which he made as to each defendant, and the balances resulting therefrom.

All parties made numerous specific exceptions to the report of the master. The chancellor examined the report of the master and all the testimony taken by him, and from both the report and the testimony passed upon said exceptions to the report. He sustained a number of these exceptions, and in all other respects he approved the findings and report of the master. Some of the exceptions which the chancellor sustained relate to items involving questions of law as to whether or not such items should be allowed, either as a charge or credit. Other exceptions sustained by him relate to the findings of fact made by the master as to the value of the rents and of the improvements.

The objections now urged upon this appeal relate to the findings and decree of the chancellor and chiefly to the following matters:

His action in changing the finding of...