Shapard v. Mixon

• Decision Date: 28 February 1916
• Docket Number: (No. 204.)
• Citation: 184 S.W. 399
• Parties: SHAPARD v. MIXON et al.
• Court: Arkansas Supreme Court

Page 399

184 S.W. 399

SHAPARD v. MIXON et al.

(No. 204.)

Supreme Court of Arkansas.

February 28, 1916.

On Rehearing, March 20, 1916.

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

Suit by Birdie Douglas and others against B. L. Mixon, in which T. L. Shapard was made a defendant. From a decree for defendant Mixon, defendant Shapard and plaintiffs appeal. Decree affirmed and cause remanded, with directions to enter a decree foreclosing a mortgage.

Moore, Vineyard & Satterfield, of Helena, for appellants. E. H. McCulloch, of Little Rock, and H. F. Roleson and Daggett & Daggett, all of Marianna, for appellee.

McCULLOCH, C. J.

Harriet E. Bobbitt owned a farm in Lee county, containing 40 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, Ark., 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 5 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 indorsement 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 18 years. Subsequently three of the children, V. A. Bobbitt, Birdie Douglas (née 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. C. 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 $1 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 his 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 18 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 limitation. A cross-complaint was filed against W. C. Bobbitt and T. L. Shapard, setting forth the fact that the conveyance from Bobbitt to Shapard was executed without valuable consideration, 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, 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 limitation by reason of the fact that the suit was not instituted within 3 years after she reached the age of 18 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 21 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 Mixon was entitled to have the lease extended from November 28, 1917, which is the date Vera Bobbitt will come 21 years of age, for such length of time as the rents and profits will be sufficient to repay him the amount adjudged against him in favor of the two heirs, not extending, however, beyond the lifetime of W. C. Bobbitt. Shapard was immediately granted an appeal to this court, and since the transcript was lodged here the original plaintiffs cross-appealed. A motion was filed by the appellees, Mixon and others, to dismiss the cross-appeal, whereupon the three plaintiffs abandoned their cross-appeal and obtained a direct appeal from the clerk of this court.

The first question for discussion relates to the status here of the original plaintiffs — whether or not they have brought their case here in the proper time for review. It is evident that the cross-appeal was not effectual for the purpose of bringing up the plaintiffs' branch of the case. The statute provides that an appellee may, at any time before trial, "pray and obtain a cross-appeal against the appellant or any coappellee." Kirby's Digest, § 1225. The plaintiffs are not appellees on the appeal of Shapard. The respective controversies between plaintiffs and Mixon, and between Mixon and Shapard, are entirely separate, and an appeal from the portion of the decree which related to one of the controversies did not bring up the other.

The question whether or not the direct appeal of the plaintiffs was taken in time is a more difficult one. The final decree of the chancery court was rendered March 18, 1915, and the appeal of the plaintiffs was prayed more than 6 months after the rendition of the decree, but less than 1 year after such rendition, and less than 6 months after the new statutes shortening the time for appeals went into effect. The statute, it will be remembered, shortened the time for appeals from 12 months to 6 months after the rendition of the decree or judgment appealed from.

We held recently, in the case of Stephens v. Williams, 183 S. W. 527, that the new statute applied to judgments and decrees rendered prior to the time the statute went into effect, so as to shorten the time to 6 months after the statute went into effect. The authorities cited in the opinion in that case all tend to sustain the view that the new statute does not apply to judgments rendered prior to the time it went into effect, where the unexpired period of time allowed under the old statute does not equal the full time allowed under the new. One of the cases cited in the opinion was Wilson v. Kryger, 26 N. D. 77, 143 N. W. 764, 51 L. R. A. (N. S.) 760, where the court was passing upon a statute similar to the one in this case, which had reduced the time of appeal from 12 months to 6 months. In disposing of the matter, the court said:

"In order to give effect to the...