Rogers v. Ogburn

Decision Date11 January 1915
Docket Number103
Citation172 S.W. 867,116 Ark. 233
PartiesROGERS v. OGBURN
CourtArkansas Supreme Court

Appeal from Desha Circuit Court; Antonio B. Grace, Judge; reversed as to Jackson; affirmed as to Rogers.

Judgment affirmed in part, reversed in part and cause remanded.

Roscoe R. Lynn, for appellant.

1. Both parties claim title through Isaac Adair, deceased. The complaint is sufficient. 53 Ark. 449; 79 Id. 532. The seven years statute of limitations is applicable and did not commence to run as to the remaindermen until the death of the life tenant. The suit was brought within two years. 69 Ark. 539.

2. The grant created an estate tail under the earliest decisions. 3 Ark. 147-195. But under Kirby's Dig., § 735, it created a life estate with remainder in fee simple absolute to appellants. 44 Ark. 458, 475; 67 Id. 517; 72 Id. 336; 75 Id. 21; 95 Id. 21; 98 Id. 570. No conveyance by the life tenant could affect the title of the remaindermen. 49 Ark. 125. If appellees own the half interest of Rogers, they and Ida M Jackson are tenants in common, and they have totally denied Ida M. Jackson's rights and ejectment will be for her interest and rents and profits. 31 Ark. 345; 40 Id 155.

3. The conveyance from Rogers only conveyed the life estate of the mother. The cause should have been transferred to equity as to Joseph J. Rogers. Kirby's Dig., § 6991; 85 Ark 208; 87 Id. 206, 211; 107 Id. 70; 108 Id. 283, 291.

F. M. Rogers, for appellees.

1. The deed from Rogers and his mother vested Rogers' interest in fee simple in the appellees. "Living witnesses" can not be heard to explain away the effect of a deed in fee simple, or construe a will. This is for the court.

2. Jackson is barred by limitation. A demurrer raises the question of limitation at law or in equity. Kirby's Dig., §§ 5980, 5981, 6093; 28 Ark. 7; 77 Id. 539; 95 Id. 333. Especially is this true when the complaint shows that the bar has attached.

3. By her conveyance Mrs. Adair "surrendered" her estate for life. 4 Kent 103; 16 Cyc. 645; 18 Am. & E. Enc. Law (2 ed.) 355; 71 Ark. 254. One tenant in common can oust another, and by holding adversely bar the other and acquire title. 42 Ark. 289.

4. The rule in "Shelly's case" is clearly stated in 4 Kent. 215 and 48 Ark. 303. The life estate was surrendered in 1892, and Jackson's right of entry accrued then. The act of her co-tenant amounted to ouster in law and she is barred.

OPINION

MCCULLOCH, C. J.

This is an action to recover possession of a tract of land in Desha County, all of the parties claiming title to the land from a common source. The land was formerly owned by one Isaac Adair, who executed a deed on June 21, 1887, to his wife, Nancy J. Adair, "and the heirs of her body lawfully begotten." The plaintiffs, J. J. Rogers and Ida M. Jackson, are the only children of Nancy J. Adair, and the latter executed to the plaintiff, Rogers, on December 5, 1892, a deed of gift, conveying her interest in the property to him. On August 13, 1904, plaintiff Rogers and his mother, Nancy J. Adair, executed to the defendants a deed, conveying the property, and Nancy J. Adair died in the year 1911. These facts are set out in the complaint, and the defendants demurred.

Plaintiff Rogers parted with his title and all interest in the land by executing a conveyance to the defendants. Therefore the trial court was correct in sustaining a demurrer as to him. It is alleged in the complaint that Rogers signed the deed "to convey only what title she (his mother) had previously conveyed to him, and that he at that time had no other title to convey, he having no further right or title until his mother's death." It is argued now that this allegation constituted grounds for transfer of the cause to equity.

We are unable to understand how this allegation can be construed as a statement of facts constituting grounds for equitable relief. It is shown in the complaint that the plaintiff Rogers conveyed away his interest in the land to the defendants, and the language quoted above does not impair the effect of his conveyance or afford any grounds for setting it aside.

The case stands in a different attitude so far as concerns the rights of plaintiff Ida M. Jackson. The conveyance of Isaac Adair created what would at common law have constituted an estate tail, but which under the statutes of this State is converted into a life estate with remainder in fee to the persons to whom the estate tail would have passed. Kirby's Digest, § 735. In other words, Nancy J. Adair took an estate for life with remainder in fee to the plaintiffs, who are her only children. Wilmans v. Robinson, 67 Ark. 517, 55 S.W. 950; Wheelock v. Simons, 75 Ark. 19, 86 S.W. 830; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581; Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975.

It is argued that the language of the conveyance brings it within the operation of the rule in Shelley's case, as discussed in the case of Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490, but the language of the conveyance is different and does not fall within the rule. This is fully explained in Wilmans v. Robinson, supra, where the language of the two conveyances is distinguished. It follows, therefore, that plaintiff Ida M. Jackson is seized in fee simple of an undivided half of the lands in controversy, which interest was by the death of her mother freed from the life estate which encumbered it.

It is urged, however, that the complaint shows on its face that the right of action of said plaintiff is barred by the statute of limitation, and for that reason the ruling of the court in sustaining the demurrer should be affirmed. The statute of limitation can not be raised by demurrer in actions at law, except in cases where the complaint shows affirmatively, not only that the statutory period has elapsed, but that no facts exist which takes the case out of the operation of the statute. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; St. Louis, I. M. & S. Ry. Co. v. Brown, 49 Ark. 253, 4 S.W. 781.

We deem it proper, however, in...

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