Mooney v. Rowland

• Decision Date: 17 April 1897
• Parties: MOONEY v. ROWLAND
• Court: Arkansas Supreme Court

40 S.W. 259

64 Ark. 19

MOONEY v. ROWLAND

Supreme Court of Arkansas

April 17, 1897

Appeal from Boone Circuit Court in Chancery, BRICE B. HUDGINS Judge.

Decree affirmed.

W. F Pace, and Dan W. Jones & McCain, for appellants.

No case for specific performance was made by appellees in their cross-complaint. The parol agreement was within the statute of fraud. There was no consideration shown for it, and no such part performance by entry and making valuable improvements, etc., as to constitute ground for specific performance. 1 Ark. 416; 44 id. 346; 39 id. 429; 32 id. 97; 11 S.W. 112; Waterman, Spec. Perf. 258; 21 Ark. 277; 4 Wall 513. As between co-tenants, the doctrine of part performance has no application. Freeman on Co. Ten. §§ 261-2; 44 Ark. 79; 8 Wall. 557. While it is the policy of the law to uphold family settlements, it does not extend to the transfer of title to land by parol.

O. W Watkins, for appellees. G. J. Grump and De Roos Bailey, of counsel.

The ancestor of appellants having renounced all claim or title, and appellees having relied on such disclaimer, and bought and paid more for the shares of the other heirs, appellants are estopped. Bigelow, Estoppel (5 Ed.), 456, 459; 33 Ark. 468; 37 id. 47; 48 id. 409; 50 id. 430; 96 U.S. 457; 2 Pom. Eq. Jur. §§ 805-6, and note; 36 Ga. 184; S. C. 91 Am. Dec. 761; 72 id. 657; 6 Johns. Ch. 167; Broom's Leg. Max. *pp. 174, 290. When co-tenants make a parol partition of lands among themselves, and each one takes exclusive possession of his share thus allotted, the statute of frauds does not apply. Pomeroy, Spec. Performance, § 121; 36 Miss. 706; S. C. 66 Am. Dec. 581; 4 Tex. 431; 13 Penn. 376; 2 Douglas, 344; S. C. 45 Am. Dee. 257; Freeman on Coten. §§ 398, 402; 20 Ark. 615. This was a family settlement, and should be upheld, 2 Cases in Equity, pt. 2, *p. 920; Wood, St. Frauds, § 508; Pom. Spec. Perf. § 121; 2 Swan, 38; 1 Story, Eq. (12 Ed.), § 129; 15 Ark. 275; 42 Am. Dec. 468; 36 Ga. 184; 16 Am. Dec. 35. James Rowland having received more than $ 800 from his father and his estate, and $ 500 from his brother John, this furnished a consideration for his conveying his interest. But, treated as a gift, the heirs having gone into possession and made improvements, the agreement to convey will be enforced in equity. 32 Ark. 97; 9 Wall. 1; 101 U.S. 426; Pom Spec. Perf. § 130; 43 N.Y. 34.

OPINION

BUNN, C. J.

George Rowland, the common ancestor of all the parties to this suit, died intestate in 1856, leaving surviving him Mary Rowland, his widow, and John B. Rowland, James A. Rowland (father-in-law of appellant W. F. Mooney, and father of appellant Mrs. E. R. Mooney and G. M. Rowland), and appellees, R. P. Rowland, M. H. Rowland, Mack Rowland, William Rowland, Elizabeth (mother of George, E. H. and Frank Jefferson), and George H. Rowland, whose only child, Augusta Eoff, is one of the parties defendant herein. John B. Rowland died childless and intestate in 1866, leaving no property except his undivided interest in his father's estate, and one promissory note on James A. Row land for the principal sum of $ 522.75, and not having come into possession of his share in his father's estate. Elizabeth Jefferson, nee Rowland, died intestate, and not having come into possession of her share of her father's estate, and leaving surviving her the children aforesaid; as also did George H. Rowland. James A. Rowland, father of Mrs. E. R. Mooney and O. M. Rowland, appellants, died intestate, in 1885 or 1886. His wife died in 1860 or 1861, and from that time his children, the appellants, lived with their grandmother, Mary Rowland, at the family homestead, and the testimony tends to show that they and their grandmother were supported by appellees Mack, William and W. H. or "Mat" Rowland, by whom they were also educated. Mary, the widow of George Rowland, the ancestor, continued to occupy the homestead (reduced by consent of herself and her children to about 100 acres) until her death, which occurred subsequent to the institution of this suit.

George Rowland at one time gave his son, James A. Rowland, $ 50, with directions to enter a certain 40-acre tract of land, as is claimed by appellee, which he did, but took the deed in his own name. Subsequently, the evidence shows, James A. sold a portion of this tract, with a piece of his father's land, to one Osborne, and, in consideration that the sale might be undisturbed otherwise, he gave back a portion of this tract to his father, which seems to have constituted a part of the homestead mentioned, or was immediately adjoining it, and agreed to convey the same to him, putting him in possession.

George Rowland died seized and possessed of the lands in controversy, as appears from the testimony, and also certain moneys, amounting to the sum of $ 829.50, after the settlement of his estate, and this sum finally came into the hands of James A. Rowland.

Sometime in the year 1870, an agreement was made between James A Rowland and the other heirs of George Rowland, wherein James A. Rowland, in consideration that he should not be called on for the $ 829.50, but should retain the same, and also should not be required to pay the amount due from him to the estate of John B. Rowland; deceased, in which they all had an equal interest per stirpes, agreed to release and quit-claim to the others all his interest in the lands of his father, and also in the share of his brother John B. therein. Immediately, in the presence of James A. Rowland, and by his advice and consent, the other heirs, the appellees, divided the said lands among themselves, except the homestead, which it was agreed should remain intact and undivided during the life of their mother, and each one took possession of and began to make improvements upon his share so allotted him; and this settlement appears to have been...