Ogden v. Ogden

• Decision Date: 15 December 1894
• Citation: 28 S.W. 796
• Parties: OGDEN v. OGDEN et al.
• Court: Arkansas Supreme Court

28 S.W. 796

OGDEN v. OGDEN et al.

Supreme Court of Arkansas.

December 15, 1894.

Appeal from circuit court, Crawford county, in chancery; Hugh F. Thomason, Judge.

Action of ejectment by John B. Ogden, Jr., and others, against Susan H. Ogden. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Jos. M. Hill, for appellant. Turner & Turner and E. B. Pierce, for appellees.

RIDDICK, J.

This was an action, brought by appellees, to recover possession of certain lots in the town of Van Buren. The appellees, who are the children of John B. Ogden, Sr., and his first wife, Jane Ogden, allege that their father, being the owner of the lots in controversy, upon which his residence was located, conveyed the same to their mother. The mother of appellees died in 1866, and their father afterwards married appellant, and continued to reside upon and exercise acts of ownership over the premises in question until his death, in 1889. Appellees claim the land as heirs of their mother. The appellant admits that John B. Ogden, Sr., the father of appellees and her husband, was the owner of the lots in controversy, as alleged in the complaint; but she denies that he conveyed said lots to Jane Ogden, the mother of appellees, and alleges that he died seised and possessed of the same, and that she is entitled to the same as her homestead. The action was brought at law, and afterwards plaintiffs moved to transfer the same to the equity docket. The motion was conceded by defendants, and the cause transferred to the equity docket. Upon the hearing of the case, there were a finding and judgment in favor of the appellees for the possession of the property, from which an appeal was taken.

While not free from doubt, we think the evidence sustains the allegation of the complaint that John B. Ogden, Sr., about the year 1860, conveyed the premises to his first wife, Jane Ogden, the mother of appellees, and that the deed executed to her was recorded. By the common law, a husband could not make a grant of property to his wife; such a conveyance was of no validity. But it is now generally held that, in the absence of fraud, such conveyances are not void. The result of this conveyance by Ogden to his wife was to give her the equitable estate, while he held the legal title, as her trustee. Dyer v. Bean, 15 Ark. 519; Jones v. Clifton, 101 U. S. 225; McMillan v. Peacock, 57 Ala. 129; Wilder v. Brooks, 98 Am. Dec. 50, and note; 9 Am. & Eng. Enc. Law, 792.

After the death of Jane Ogden, her husband became entitled to an estate in the lots owned by her for the residue of his life, as tenant by curtesy, and this was so, although her estate was only an equitable one. Williams, Real Prop. (17th Ed.) 281, 287; 4 Am. & Eng. Enc. Law, 965.

The appellees inherited the equitable estate of their mother, subject to the life estate of their father; and when it terminated, by his death, they, being his heirs also, became at the same time the owners of both the legal and equitable estate, and the latter became merged in the former. When the husband has only a life estate in the land upon which he lives, his widow can, of course, have no homestead therein. Nor has she the right of homestead in land to which her husband holds the legal title only as trustee for another, who owns the equitable or beneficial estate. After the death of their father, the right of appellees to recover at law was therefore clear, unless barred by the statute of limitations. As a general rule, in order to acquire title by adverse possession, the holding must be against one entitled to the possession of the land held, and having the right...