Shapard v. Mixon

• Decision Date: 28 February 1916
• Docket Number: 204
• Citation: 184 S.W. 399,122 Ark. 530
• Parties: SHAPARD v. MIXON
• Court: Arkansas Supreme Court

184 S.W. 399

122 Ark. 530

SHAPARD v. MIXON

No. 204

Supreme Court of Arkansas

February 28, 1916

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor affirmed.

Decree affirmed.

Moore Vineyard & Satterfield, for appellant.

1. The testimony shows that appellant paid a valuable consideration for the interests of Vessie, Inez and Birdie. There was no testimony that he did not pay W. C. Bobbitt also a valuable consideration for his interest. In the absence of proof to the contrary, the quitclaim deed is sufficient to vest Shapard with all the interest and title of said W. C Bobbitt. 44 Ark. 153; 86 Id. 368.

2. The deed of trust by W. C. Bobbitt to Mixon could not affect Shapard's title. It was void. 79 Ark. 45.

3. Courts of equity will not relieve against mistakes of law where the rights of third parties have intervened. Bobbitt leased to Mixon in good faith to pay his indebtedness. Subsequently he sold to Shapard in good faith and equity will not now interfere.

4. Shapard had the right to plead the statute of limitations. Kirby's Dig., § 5069.

E. H McCulloch and H. F. Roleson, for R. L. Mixon.

1. Shapard paid no consideration for Bobbitt's life estate, and he bought from the heirs with full knowledge and information that such purchase was subject to Mixon's rights. Kirby's Dig., § 734; 51 Ark. 390.

In dealing with the heirs he recognized and took into account the Mixon lease, and so did the heirs. Shapard should have known the provisions of § 734, Kirby's Digest.

2. The cross-appeal was not taken within six months after the decree; it is too late.

3. Mrs. Douglas was barred, and so was Inez. After Inez conveyed to Shapard she no longer had any rights in the rents.

4. The conveyances by Birdie and Inez did not have the effect of vesting in Vera, the other minor child, all the rents of the homestead. The chancellor's finding is correct. If the heirs desired to dispute the lease, they should have done so as soon as each became eighteen years of age.

Daggett & Daggett, for appellees and cross-appellants.

The right to recover the rents is undisputed unless barred by limitation or lost by abandonment. 54 Ark. 9; 56 Id. 139. They are not barred (92 Ark. 625), and there was no abandonment. 53 Ark. 400. The deeds to Shapard only conveyed their estate of inheritance in the land, and not their homestead rights. 101 Ark. 510. Under this authority, Birdie only waived her right to the rents for 1911, 1912 and 1913, and Inez only for the year 1913 by their conveyances.

2. The fact that the account of Bobbitt was for supplies and necessaries is no defense to this action, as the heirs were never legally bound for, or purchased any of them.

3. They are not estopped. 51 Ark. 61; 55 Id. 423. They were minors. 87 Ark. 206; 86 Id. 556. Minors can not waive their homestead rights. 29 Ark. 633; 37 Id. 316; 47 Id. 445.

4. Kirby's Digest, 1225, does not affect these appellees' right to appeal; they are co-appellees, and the cross-appeal is effective to confer jurisdiction as to judgment against Mixon. Besides, they prayed an appeal, and it was granted by the clerk of this court, and the appeal was taken in time. Acts 1915, p. 206.

MCCULLOCH, C. J. Hart and Kirby, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Harriet E. Bobbitt owned a farm in Lee County, containing forty acres, which constituted her homestead, and she died in February, 1898, leaving surviving her husband, W. C. Bobbitt, and four minor children--one son, V. A. Bobbitt, and three daughters, Birdie, Inez and Vera. The land was occupied as a homestead several years thereafter by the father and the four children, but they finally removed therefrom, and the farm was occupied by tenants. In the year 1906, W. C. Bobbitt mortgaged his interest in the land to Mixon-McClintock Company, a mercantile corporation doing business at Marianna, Arkansas, the debt secured being for supplies furnished and to be furnished thereafter. The mortgage specified that it was to secure a note from W. C. Bobbitt to the Mixon-McClintock Company for $ 500, and such further advances of merchandise, etc., as should thereafter be made. The mortgagee furnished supplies to Bobbitt during the years 1906, 1907, and also to some extent in the year 1908, and the account thereof fell within the terms of the mortgage. At the end of the year 1908, Bobbitt owed the Mixon-McClintock Company the sum of $ 531.23 balance, which was secured by the mortgage, and on January 19, 1909, he executed to R. L. Mixon, acting for the mortgagee, a contract whereby he leased the premises to Mixon for the period of five years, ending on December 31, 1913, the contract reciting on its face that the consideration was the sum of $ 531.23, the amount of the mortgage debt. Mixon was the agent of the mortgagee in the transaction and the lease was accepted for the latter's benefit.

The evidence in the case establishes the fact beyond dispute that the lease was executed by Bobbitt and accepted by the Mixon-McClintock Company in satisfaction of the debt due under the mortgage. The original note for $ 500 was surrendered to Bobbitt by the mortgagee, and the latter also gave Bobbitt an instrument stating that the live stock and wagon also embraced in the mortgage were released. There was, however, no endorsement of the satisfaction of the mortgage, made upon the record. The son, V. A. Bobbitt, joined in the lease contract. That contract contained an express covenant on the part of the lessors that they had a good and lawful right to make and enforce the contract, and that they would, "for the consideration aforesaid, and the payment of taxes as hereinbefore mentioned, warrant, defend and protect said lessee in the quiet enjoyment of the use of said land for the period of time, together with the uses, rents and profits thereof inuring to him under and by virtue of this lease." Neither Bobbitt nor his children were living on the premises at that time, but the same had been rented out for several years prior thereto. Mixon held the premises for the full period of the lease and rented it out to different parties, receiving the gross rental of $ 145 a year for each year during the lease. At the time the lease contract was executed, each of the three girls, Birdie, Inez, and Vera, was under the age of eighteen years. Subsequently, three of the children, V. A. Bobbitt, Birdie Douglas (nee Bobbitt), and Inez Bobbitt, severally conveyed their interests in the land to T. L. Shapard. V. A. Bobbitt conveyed in August, 1910; Mrs. Douglas conveyed in November, 1910; and Inez Bobbitt conveyed in November, 1912. The proof shows that the conveyance of each of the children made to Shapard was in subordination to the rights of Mixon, and that a discount in the price was made on account of the outstanding lease. W. G. Bobbitt also conveyed his interest in the land to Shapard by quitclaim deed dated November 22, 1910, which was the same date as the deed of Mrs. Douglas to Shapard, and the deed recites a consideration of one dollar paid.

On January 16, 1914, the three daughters of Mrs. Bobbitt, deceased, namely, Birdie Douglas, Inez Bobbitt and Vera Bobbitt, instituted the present action against Mixon to recover of him the rental value of said premises during the period of said lease, and they alleged in their complaint that they were infants under the age of eighteen years at the time the lease was executed; that the premises constituted their homestead which they derived from their mother; and that the lease was for that reason void. Mixon answered, setting up the foregoing facts with reference to the execution of the lease and the consideration therefor, and pleaded in defense that the consideration of the original debt was supplies furnished to W. C. Bobbitt for the benefit of his minor children, and he also pleaded the statute of limitations.

A cross-complaint was filed against W. G. Bobbitt and T. L. Shapard, setting forth the fact that the conveyance from Bobbitt to Shapard was executed without valuable considerable, and that Shapard, at the time he received the conveyance, did so with full knowledge of the rights of Mixon, and there was a prayer that in the event the plaintiffs recovered anything from Mixon, that the original security be reinstated and enforced against the estate for Bobbitt's life, held by Shapard under the deed. It was alleged in the cross-complaint that the lease from Bobbitt was accepted upon the faith that the lessee would be allowed to retain the premises for the period of the lease, and enjoy all the rents thereof, and that if the Bobbitt heirs were permitted to recover it would constitute a failure of consideration of the lease.

The suit was, without objection, transferred to equity and proceeded to a final hearing. The chancellor found that plaintiff Birdie Douglas was barred by the statute of limitations by reason of the fact that the suit was not instituted within three years after she reached the age of eighteen-years; that plaintiff Inez Bobbitt was entitled to recover of Mixon her proportionate part of the rent for each year during the lease, except the year 1913, which was after she had conveyed to Shapard in recognition of the outstanding lease; and that the plaintiff Vera Bobbitt, who was still under twenty-one years of age, recover her proportionate part of the rents for each year during the lease. A decree was rendered in favor of Inez Bobbitt against Mixon for the sum of $ 172, and in favor of Vera Bobbitt in the sum of $ 228.80, which included interest at the rate of 6 per cent per annum from the expiration of each year of the lease as the rents accrued. The net rental value of the land during each year of the lease was found by the chancellor to be $ 106. The chancellor decided that...