McLeod v. McLeod

• Decision Date: 15 October 1917
• Docket Number: 161
• Citation: 198 S.W. 115,130 Ark. 481
• Parties: MCLEOD v. MCLEOD
• Court: Arkansas Supreme Court

198 S.W. 115

130 Ark. 481

MCLEOD v. MCLEOD

No. 161

Supreme Court of Arkansas

October 15, 1917

Appeal from Bradley Chancery Court; Zachariah T. Wood, Chancellor reversed.

Decree reversed and cause remanded.

J. R Wilson, for appellants.

1. There was no real contract between father and son, no meeting of minds of these two parties, and there was no such contract as could be enforced. W. A. McLeod was a minor.

The land was a part of the homestead, and was so impressed. The wife never joined in any deed nor relinquished her dower. 126 Ark. 182; 56 Ark. 146; 71 Id. 283; 108 Id 53; 95 Am. St. Rep. 928; 113 Am. St. Rep. 802; 39 Cyc. 1217; 33 Ark. 399; 29 Id. 280; 123 Ark. 200; 113 Ark. 134.

2. The contract was not enforceable by specific performance, as it was part of the homestead. Mrs. McLeod was not bound as she was not a party to any such contract.

J. S McKnight and C. L. Poole, for appellee.

No further contract than the gift to the son was necessary. The burden was on appellants to show that the land was part of the homestead. The widow can not create a homestead right after the death of her husband. He must have impressed the homestead character upon it during his life. 33 Ark. 399; 31 Id. 145; 29 Id. 280; 41 Id. 94.

The land was given to the son and he took possession, cultivated and improved it long before his father's death. The chancellor was right in his findings.

STATEMENT BY THE COURT.

Mrs. M J. McLeod for herself and for John McLeod and Frank McLeod, her minor children, instituted this action in the chancery court against W. A. McLeod to restrain him from entering upon or otherwise interfering with their possession of a certain forty acres of land which she claims to be a part of the homestead.

The defendant answered, denying that the land was a part of the homestead of his mother and her minor children and setting up title in himself by gift from his father in his lifetime. The facts are substantially as follows:

D. W. McLeod owned nine forty-acre tracts of land situated in a body in Bradley County, Arkansas. His dwelling house and outhouses were situated on a forty-acre tract adjoining the one in controversy and just east of it. There was a large field near the dwelling house and about ten acres of this field was on the land in controversy. D. W. McLeod died June 20, 1915, and had lived on the land about twenty years prior to his death. He left surviving him his widow, Mrs. M. J. McLeod, and two minor children, viz.: Frank, fifteen years of age, and John, fourteen years of age, and several adult children. The defendant was one of his adult children.

According to the testimony of the plaintiff, the land in controversy was a part of the homestead. A detailed statement of the testimony on this point will be stated in the opinion.

According to the testimony of the defendant he cultivated a part of the land in question in the year 1911. During the summer his father gave him the land and he said his mother acquiesced in the gift. He further testified that he remained in possession of the land from that time until his father's death; that for the two years prior to his father's death, he did not cultivate the land and permitted his father to collect the rents therefrom; that no conditions were attached to the gift of the land.

Several other witnesses testified that D. W. McLeod in his lifetime told them that he had given the land in controversy to the defendant, his son, and that he did not speak of any conditions being attached to the gift. The defendant cleared up about three acres of the land and this was worth $ 10.00 per acre. According to his testimony he also placed nine rolls of wire in a fence around the land and the improvements made by him on it were worth $ 150.00. He said the rental value of the land was $ 2.00 per acre. Ten acres of the land was in cultivation and according to the testimony of two of his brothers, its rental value was four or five dollars per acre. One of his brothers also put the value of the fence at less than one-half of what he estimated it to be. The defendant placed about two thousand feet of lumber on the land and five hundred feet of it was used by his foster brother and the remaining fifteen hundred feet by his father. No deed was ever executed to the defendant for the land. During his father's last illness the defendant tried to get his mother to have his father execute a deed to him to the land, but she refused to do so. The request worried his father a great deal and he refused to make the deed, saying that the land was his homestead and that he had in the first instance given the land to the defendant on condition that he would establish himself a home there; that the defendant had failed to build a home on the land, but on the contrary had abandoned it and had forfeited all his rights thereto.

Other testimony will be stated or referred to in the opinion. The chancellor found that the land had never constituted a part of the homestead of D. W. McLeod; that he had given the land to the defendant in his lifetime and put him in possession of it and the title to the tract of land was quieted and confirmed in the defendant. The case is here on appeal.

OPINION

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

Section 3901 of Kirby's Digest being an act of March 18, 1887 provides in effect that no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity unless his wife joins in the execution of such instrument and acknowledges the same. Under this statute we have always held that a deed purporting to convey the homestead of a married man is a nullity if his wife fails to join in the...