Shirey v. Clark
Decision Date | 18 June 1904 |
Citation | 81 S.W. 1057,72 Ark. 539 |
Parties | SHIREY v. CLARK |
Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, FREDERICK D. FULKERSON, Judge.
Action by James M. Clark, Allie Bradley, Homer P. Clark, A. W Clark, as heirs of Emily Clark, deceased, and Loyd W. Clark heir of A. W. Clark, Jr., deceased, one of the children of Emily Clark, deceased, against A. W. Shirey. Plaintiffs had judgment, and defendants appealed. Affirmed with modification.
STATEMENT BY THE COURT.
Appellees brought ejectment against appellant for land described in complaint, claiming title through their mother, Emily Clark as the children and heirs at law of said Emily Clark and A W. Clark, their father and the husband of the said Emily, and alleging wrongful possession and detention by appellant, and claiming rents as damages.
Defendant answered, denying plaintiffs' title and right to possession, and claiming title in himself. The case was heard on the agreed statement of facts in the case, with other evidence.
The plaintiffs relied upon the following deed from A. W. Clark to Emily Clark, his wife, to-wit:
The agreed statement of facts is as follows:
The court found and gave judgment for appellees. Appellant excepted and appealed.
Judgment affirmed.
Gustave Jones, Marshall & Coffman, for appellant.
The deed of Clark to his wife created a contingent remainder in his heirs by her. 2 Blackst. c. 11; 4 Kent, lix; Tied. Real Prop. § 412; 20 Am. & Eng. Enc. Law, 858. The words "heirs," "bodily heirs," etc., have a fixed meaning. 15 Am. & Eng. Enc. Law (2d Ed.), 320; 53 Am. Dec. 474; 56 Am. Dec. 762; 27 Am. Dec. 238, 746; 53 Ark. 255; 2 L. R. A. 372. The rule in Shelley's case does not apply here. 22 Am. & Eng. Enc. Law, 505; 62 Ark. 26. In ejectment the plea of the statute of limitations is not required. 100 Am. Dec. 328; 31 Me. 384; 3 Wash. Real Prop. 501; 28 Miss. 129; 35 Mo. 490; 1 Chitty, 507; Adams, Ejec. 270. The plaintiffs must recover, if at all, on the strength of their own title. 47 Ark. 215, 413; 31 Ark. 364; 52 Ark. 143; 13 Am. & Eng. Enc. 732. The court erred in allowance of rent. Sand. & H. Dig. § 2592; 40 Ark. 108.
John W. & Joseph M. Stayton, and H. L. Ponder, for appellees.
Deeds shall be construed so as to express the intent of the grantor, 3 Ark. 18; 6 Ark. 109; 15 Ark. 286; 53 Ark, 185. And most strongly against the grantor. 15 Ark. 695; 53 Ark. 107. The court will look to the intent of the grantor, and not to the technical words used. 2 Pingrey, Real Prop. § 1263; 28 S.C. 125; 93 Cal. 664; 66 Texas, 543; 2 Dev. Deeds, 837. When it appears from the instrument and surrounding circumstances that in using the word heirs the grantor meant children, the construction so made will give effect to the instrument. Pingrey, Real Prop. § 1288; 79 Ga. 382; 172 Ill. 521; 132 Ill. 494; 102 Ind. 76; 131 Ind. 122; 99 Mo. 338; 10 B. Mon. 106; 57 Mich. 369; 51 Pa.St. 181; 27 Vt. 475; 28 S.C. 129; 79 Ga. 381; 68 Ark. 369; 2 Devlin, Deeds, § 864; 5 Wall. 269. An estate as by purchase passed, and not one by descent. 2 Wash. Real Prop. §§ 1824, 1616; 2 Pingrey, Real Prop. 1168; 4 Kent. 507, and §§ 222, 229-233. That interpretation will be given which, if consistent with the words of the instrument, will give a vested rather than a contingent remainder. 1 S. & R. (Pa.) 373; 23 Pa.St. 9; 37 Pa.St. 23, 105; 61 Pa.St. 111; 51 Pa.St. 504; 88 Pa.St. 397; 5 Mass. 535; 1 Allen, 223; 3 Cush. 390; 4 Johns, 61; 4 Sand. 36; 25 Wend. 19; 13 N.J.Eq. 168; 15 Gratt. 551; 76 Ind. 388; 78 N.C. 792; 33 Oh. St. 128; 42 Vt. 395; 11 R. I. 38; 50 Mich. 395; 77 U.S. 579. If they took as purchasers, he meant children by the use of the word heirs. 69 Ark. 313. If the deed conveyed a vested remainder, it comes within section 700 of Sandels & Hill's Digest, 44 Ark. 478; 67 Ark. 517. The statute of limitations must be specially pleaded. Sand. & H. Dig. § 2578; 43 Ark. 296; Newman, Pl. & Pr. 533; 52 Ark. 298; 41 Ark. 17.
Gustave Jones, Marshall & Coffman, for appellant in reply.
In all contingent remainders to the heirs of a living person, all persons answering the description of the heirs of the ancestor or grantor take as purchasers. 18 B. Mon. 370; 18 N.Y. 412; 5 Wall. 268; 61 Ga. 83; 15 Am. & Eng. Enc. Law (2d Ed.), 327; 103 Ill. 332; 72 Ind. 398; 95 Mo. 33; 125 Pa.St. 522; 147 Mass. 17; 37 Ala. 174; 172 Ill. 521.
OPINIONHUGHES, J. (after stating the facts.)
It is contended that the conveyance by A. W. Clark to Emily Clark, his wife, created a contingent remainder, which was defeated, and that the estate reverted to the grantor, the precedent estate having expired by the wife's death before his; and the counsel for appellant say "that a deed to the heirs of a living person is always held void unless it is clear from the context that children are meant, which could not be where there is, as here, no context." We may admit that his statement of the law is correct; and yet his assumption of fact upon which his statement of the law is predicated is clearly wrong. It is conceded and undeniable that if the words in the deed of Clark to his wife--"to have and to hold during her life or widowhood, in the event that she shall become the widow of said A. W. Clark, and after her death, or future marriage, then to the heirs of said A. W. Clark and by the said Emily Clark--meant the children of A. W. Clark, then the deed was valid, and created a vested remainder. What other meaning could attach to the words, "heirs of said A. W. Clark by the said Emily Clark?" They could only mean the children of the said A. W. Clark by the said Emily Clark then living. The maxim, "Nemo est haeres viventis" does not apply here, because the word "heirs," as used, evidently means children in esse. The intention of the grantor in the deed must prevail; and it is evident by the use of the words "heirs of said A. W. Clark by the said Emily Clark" he could have meant nothing else than the children of the said A. W. Clark by the said Emily Clark. Pingrey, Real Property, § 1288; Tharp v. Yarbrough, 79 Ga. 382, 4 S.E. 915; Waddell v. Waddell, 99 Mo. 338, 12 S.W. 349; Womrath v. McCormick, 51 Pa. 504; Wyman v. Johnson, 68 Ark. 369, 59 S.W. 250.
Upon the death of his father, Anthony W. Clark, Jr., his son, Loyd W. Clark, succeeded to the interest of his father.
The appellant insists that the appellees were barred by the statute of limitations or by adverse possession, but there was no plea of adverse possession or the statute of limitations in the court below, and the appellant cannot be allowed to insist upon either in this court. Stillwell v. Badgett, 22 Ark. 164; McGehee v. Blackwell, 28 Ark. 27; Riley v. Norman, 39 Ark. 158. A fact relied upon to remove the statute bar must be specially pleaded. Stillwell v. Badgett, 22 Ark. 164. The...
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