McDonald v. Rankin

• Decision Date: 28 June 1909
• Citation: 122 S.W. 88,92 Ark. 173
• Parties: MCDONALD v. RANKIN
• Court: Arkansas Supreme Court

122 S.W. 88

92 Ark. 173

MCDONALD v. RANKIN

Supreme Court of Arkansas

June 28, 1909

[Copyrighted Material Omitted]

Appeal from Woodruff Chancery Court, Northern District; Josephus C Marshall, Special Chancellor.; reversed.

STATEMENT BY THE COURT.

This cause has been before this court several times, and the various questions involved in and decided upon former appeals will be found in the following opinions: Rankin v Schofield, 70 Ark. 83; Rankin v. Schofield, 71 Ark. 168; Rankin v. Schofield, 81 Ark. 440; Rankin v. Fletcher, 84 Ark. 156; Schofield v Rankin, 86 Ark. 86. The questions which are presented upon the present appeal to this court involve the determination and adjustment of the rights of the parties to the improvements and taxes, and the rents and profits of the lands in litigation.

These lands belonged to J. N. S. Gibson,, who died in 1884, seized and possessed thereof. The original suit herein was instituted in the Woodruff Chancery Court on the 17th day of August, 1886, by the collateral heirs of J. N. S. Gibson, as plaintiffs in that suit, against the administrator of his estate, Bettie Harwell, who was at one time his wife, and Sallie Spott Gibson (now Rankin), the appellee in this appeal, who was his only child, as defendants in that case, for the purpose of partitioning said lands. At the January term, 1889, of that court, a consent decree was rendered directing the sale of the property in controversy. For that purpose a commissioner was appointed, who made a sale of the property in the latter part of the year 1889. At that sale one L. B. McDonald, who was not a party, but a stranger, to the suit, became the purchaser of the property at the bid and price of $ 14,050. The commissioner made the report of said sale to said chancery court, and at its January term, 1890, that court duly approved and confirmed the sale and directed the commissioner to execute to the said purchaser a deed for said land. The commissioner executed said deed to said McDonald, which was duly approved by and acknowledged in said court in the manner prescribed by law.

L. B. McDonald went into possession of the lands under said deed in 1890, and made permanent improvements upon the lands. In 1896 he conveyed a portion of said lands to his daughter, Antoinette Bond, who is one of the appellants in this appeal; and in 1899 he conveyed the remaining portion of said lands to Cora and Jesse McDonald, who are his daughter-in-law and grandson, and who are the other appellants in this appeal.

In 1889 at the time that said consent decree was entered, Sallie Spott Rankin was a minor of tender years, and she came of age in June, 1899. On February 19, 1900, she prayed an appeal to this court from said consent decree, under which the sale of said lands was made to said McDonald; and on November 15, 1902, that decree was reversed by this court (Rankin v. Schofield, 71 Ark. 168). On December 20, 1902, Sallie Spott Rankin filed a supplemental complaint in said cause against the said appellants, seeking therein to recover from them the possession of said lands and the rents and profits thereof, and process on said supplemental complaint was served on said appellants on January 8, 1903. An answer was filed by them, in which they claimed title to the lands under said commissioner's deed executed to said McDonald and the conveyances from McDonald to them. A decree was rendered by the chancery court in their favor, and that decree was reversed by this court. Rankin v. Schofield, 81 Ark. 440. It was there found that Sallie Spott Rankin was the only child and sole heir of said J. N. S. Gibson, and the owner of said lands; and it was held that the said consent decree of the Woodruff Chancery Court ordering the sale of said lands was void, because it was entered solely by the consent of the parties, and without any consideration or judicial determination, and, said Sallie Spott Rankin being then an infant, her guardian had no authority to consent to such a decree; and also because the consent decree was not authorized by the issues raised in the pleadings. In that opinion this court expressly stated that it did not "undertake to determine the rights of the parties to a return of proceeds of sale of lands received by the appellant (Sallie Spott Rankin), rents of lands and improvements thereon, or other incidents consequent on the recovery of the same."

Upon the cause being remanded to said chancery court, that court entered a decree setting aside the commissioner's conveyance, which had been executed in 1890, to said L. B. McDonald, and decreeing in favor of said Sallie Spott Rankin a recovery of said lands. It appointed a special master to take an account of the value of the improvements and amount of taxes paid on said lands by the appellants and those under whom they claimed; and also an account of the rents and profits of said lands and of the repairs made thereon. It also directed the taking of an account of the purchase money which was paid by said McDonald and received by the parties to the original proceedings. It provided that said accounts be taken and stated separately as to the lands conveyed to and claimed by said Antoinette Bond, and as to the lands conveyed to and claimed by said Cora and Jesse McDonald. That court further decreed:

"It is further ordered that no writ of assistance or other process for the possession of said lands shall issue in favor of plaintiffs in said supplemental proceedings until the value of the aforesaid improvements and taxes shall have been ascertained and any balance, if any there be, owing to said defendants on account of said improvements, after setting the value and amount of such improvements off against any amount that may be coming to said plaintiffs on account of rents and profits, less the cost of repairs, shall have been paid.

"In taking the account of rents, the master will ascertain the amount commencing with the first year, to-wit: 1890, and ascertain what rents were received by L. B. McDonald for that year, or what he might by the exercise of ordinary diligence, that is, the diligence which a man of reasonable capacity would exercise in his own business, and will charge him with the rents thus received or which he might have received for that year.

"He will next ascertain the cost of all necessary repairs upon said lands for that year, and deduct the amount thereof from the amount of rents in like manner for each year covered by the period aforesaid. In taking the account for improvements, he will ascertain and state specifically each permanent improvement which he finds to have been made and the nature and character thereof, and value such improvements added to said premises. He will also find as separate item what amount such improvement may have added to the rental value of said premises. The master will proceed as early as practicable to take and state such account.

"Whereupon said plaintiffs renewed their motion filed herein, to-wit: On the 3d day of January, 1903, for writ of restitution, which motion is by the court overruled at this time on the ground that the court is of the opinion that the defendants herein are entitled to an accounting for the value of permanent improvements placed upon said premises and taxes, and that no writ of restitution should be issued until the master aforesaid shall make his report, and the same shall have been approved by the court."

A great deal of evidence was taken by the master relative to these matters submitted to him, and he made a detailed report of his findings relative thereto. The findings of the master as to the values and amounts of the items submitted to him are well sustained by the evidence; and his work has been done so well and thoroughly in this respect that neither party has made any objection thereto in that regard. Their objections are based solely upon the rights of the respective parties to recover the respective items. The special chancellor approved these findings, but altered the report of the master by allowing certain items and disallowing others. Upon a final hearing, the special chancellor entered a decree in favor of Antoinette Bond in the sum of $ 2,095.50, the same being a net balance which he found to be due upon improvements made and taxes paid upon that portion of the lands conveyed to her; and in favor of Sallie Spott Rankin and against Cora and Jesse McDonald in the sum of $ 4,662.81, the same being a net balance found by him to be due on the mesne profits of that portion of the lands which were conveyed to Cora and Jesse McDonald.

In the above amounts there were not included any rents for the year 1908 on any of said lands. From this decree all the parties have appealed to this court. Sallie Spott Rankin also prayed a separate appeal from that portion of the decree refusing to give to her the immediate possession of all the lands. The two appeals have been consolidated in this court, and the cause is now docketed and will be referred to with Antoinette Bond and Cora and Jesse McDonald as appellants and Sallie Spott Rankin as appellee.

Cause remanded.

Moore, Smith & Moore, for appellants McDonald and Bond.

1. Cora and Jesse are only liable for rents from 1903 to 1907. For years 1890 to 1892 L. B. McDonald's estate is liable, and W. L. McDonald's estate is liable for the rents from 1893 to 1902, all inclusive. Jesse McDonald, a minor, is not liable for rents at all. The land was in possession of her mother, not as guardian but in her own right. Cora is only liable for rents for 1903 and afterwards. Prior to 1903 her husband received the rents. Antoinette Bond is only liable for rents from 1906.

2. The rents from 1890 to 1899, inclusive, should not have been set off against the purchase money. Appellee is chargeable...