Perry v. Rye

• Decision Date: 03 May 1954
• Docket Number: No. 5392,5392
• Citation: 267 S.W.2d 507,223 Ark. 594
• Parties: PERRY v. RYE.
• Court: Arkansas Supreme Court

Page 507

267 S.W.2d 507

223 Ark. 594

PERRY v. RYE.

No. 5392.

Supreme Court of Arkansas.

May 3, 1954.

P. E. Dobbs, Hot Springs, for appellant.

Clayton Farrar, Hot Springs, for appellee.

McFADDIN, Justice.

This is a suit instituted by the appellee to recover a tract of land in the City of Hot Springs. From a decree in favor of the plaintiff for the land and for $1,076.67 damages, the defendant prosecutes this appeal. We will refer to the parties as they were styled in the Trial Court.

I. Title of Plaintiff. The cause was filed as an action in ejectment, and transferred to equity on motion of the defendant. The plaintiff both alleged and proved the following:

(a) that the Lot 8 here involved was owned by Sam Rye, who died in 1921;

(b) that this Lot 8 was devised in the residuary clause of the will to Sam Rye's four children, of whom plaintiff was one;

(c) that Elsie Rye, widow of Sam Rye, not being named in the will, took dower in his estate as provided by Statute;

(d) that this Lot 8 was assigned to the widow, Elsie Rye, for her life ¹ by proper order of the Probate Court in 1923;

(e) that on September 3, 1926, Elsie Rye executed a Special Warranty Deed to J. H. Floyd, describing the property: '* * * all my right, title and interest in and to Lot 8' (further described by block and addition, etc.), 'said property having been assigned and set apart to me as dower by order of the Garland County Probate Court';

(f) that the Executor of the Estate of J. H. Floyd executed a Special Warranty Deed to the defendant, Rutha Perry, in 1941, describing the property conveyed as '* * * all the right, title and interest of J. H. Floyd, as conveyed by Elsie Rye on September 3, 1926,' (and giving the book and page number of the deed where recorded) 'as follows: 'All my right, title and interest in and to Lot 8' (and giving block and addition, etc.), 'said property having been assigned and set apart to me as dower by order of the Garland County Probate Court";

(g) that Elsie Rye died on July 22, 1951; and

(h) this action was filed on September 5, 1951.

With the above facts alleged and proved, we think the plaintiff proved a sufficient title. It is true that the plaintiff did not deraign his title from the sovereignty of the soil, but he did deraign it from Sam Rye, who is the common source of title of both plaintiff and defendant: since defendant claimed by limitations and by tax forfeitures occurring during the life estate of Elsie Rye. Allegation and proof of title from the common source was therefore sufficient in this situation. See Spencer v Pierce, 172 Ark. 108, 287 S.W. 1019; and Naill v. Kirby, 162 Ark. 140, 257 S.W. 735.

The defendant apparently recognized the general rule of law that limitations does not commence to run against the remainderman until the death of the life tenant. Ogden v. Ogden, 60 Ark. 70, 28 S.W. 796, 46 Am.St.Rep. 151; Kennedy v. Burns, 140 Ark. 367, 215 S.W. 618; and Frazier v. Hanes, 220 Ark. 765, 249 S.W.2d 842.

II. Betterments. After receiving the aforementioned deed from the Executor of the J. H. Floyd Estate in 1941, defendant placed portions of four houses on the Lot 8 here involved; and defendant claims that he is entitled to the protection of our Betterment Statutes.

In an effort to bring himself within the purview of § 84-1121, Ark.Stats. as to betterments by the purchaser of a tax title, the defendant showed that the Lot 8 sold for the taxes of 1923; and that the Clerk's Tax Deed was made to Sam Smith on July 3, 1926; that Sam Smith conveyed the Lot 8 by Quitclaim Deed to Elsie Rye on August 16, 1926; and that Elsie Rye conveyed to J. H. Floyd on September 3, 1926. But it will be observed that at the time of the tax forfeiture in 1923, Elsie Rye was the life tenant; and it was her duty to pay the taxes. So when she received the Quitclaim Deed from Sam Smith, she, in effect, redeemed from the tax sale. A life tenant cannot acquire a tax title adverse to the remainderman. Inman v. Quirey, 128 Ark. 605, 194 S.W. 858; and Ingram v. Seaman, Ark., 267 S.W.2d 6.

In an effort to bring himself within the purview of § 34-1423, Ark.Stats., which is our General Betterment Statute, the defendant claimed that he honestly believed that the deed from the Executor of Floyd's Estate conveyed the fee, because of defendant's own ignorance and other extraneous matters. But all of defendant's effort in this regard fall short of complying with the Statute, which provides that the person improving the property must not only believe himself to be the owner, but must be holding 'under color of title'. The Deed under which the plaintiff claimed from the Estate of Floyd recited on its face that it conveyed only the life estate of Elsie Rye which she had conveyed to J. H. Floyd. A deed conveying only life estate is not sufficient 'color of title' to bring the grantee under the benefit of the Betterment Statute: see Graves v. Bean, 200 Ark. 863, 141 S.W.2d 50. Without considering the question of 'honestly believing', we hold that the defendant failed to show that he held under color of title; and for that reason is prevented from claiming under the General Betterment Statute.

III. Defect of Parties. It was shown that the descendant of another beneficiary under the Sam Rye will owned one-half of the remainder title, along with the plaintiff, Joe Rye. In other words, such person was a co-tenant with the plaintiff. The defendant moved that such absent co-tenant should be brought into the cause. ² The Court over-ruled this motion, and the defendant claims error; but our cases hold contrary to the defendant's claims. One co-tenant can maintain an action in ejectment for the benefit of himself and his absent co-tenant. Spencer v. Pierce, 172 Ark. 108, 287 S.W. 1019. The statement there contained, supported by many cited cases, is: 'One tenant in common may maintain an action for the recovery of real property against a third person and trespasser, which will inure to the benefit of all his co-tenants.' So plaintiff had a right to maintain this case. It is always the better practice when the name of the absent co-tenant has been shown--as here--that such absent co-tenant be made a party, particularly in view of the distribution of the damages; ³ but making the absent co-tenant a party is not judicial essential to maintaining the action of ejectment. In the case at bar, the absent co-tenant may yet be made a party, in view of the directive hereinafter contained.

IV. Damages. The Chancery Court allowed the plaintiff (for himself and his absent co-tenant) damages in the sum of $1,076.67; and...