Tandy v. Smith

• Decision Date: 25 April 1927
• Docket Number: (No. 390.)
• Citation: 293 S.W. 735
• Parties: TANDY v. SMITH.
• Court: Arkansas Supreme Court

293 S.W. 735

TANDY v. SMITH.

(No. 390.)

Supreme Court of Arkansas.

April 25, 1927.

Appeal from Mississippi Chancery Court; J. M. Futrell, Chancellor.

Suit by M. C. Tandy against Marie Smith. Decree for defendant, and plaintiff appeals. Affirmed.

Taylor & Gladish, of Osceola, for appellant.

A. F. Barham, of Osceola, for appellee.

SMITH, J.

Harry Tandy, who died November 30, 1918, owned at the time of his death two small tracts of land and two lots in the town of Osceola. He inherited the lands from his mother, but he had bought the town lots. The lots were adjacent, but had been purchased at different times. The first lot purchased had been paid for, but most of the purchase money for the second lot was unpaid at the time of Harry Tandy's death, and was evidenced by two notes, payable to his grantor for $164 each. Harry Tandy left no children, but was survived by his father, M. C. Tandy, and his wife, Rosie Tandy, who continued to live on the town lots, which comprised her husband's homestead at the time of his death.

Rosie Tandy and M. C. Tandy conceived the idea of dividing the estate of Harry Tandy, and they evidenced the agreement reached to that effect by executing deeds to each other. The deed from Rosie Tandy to M. C. Tandy, in addition to a consideration of $1, recited the fact that it was executed for the purpose of effecting a division of the estate of Harry Tandy between his widow and his father, and conveyed to M. C. Tandy the following property, to wit: A tract of land known as the Harry Tandy woods land, in the south half of the northeast quarter of section 6, township 12 north, range 10 east. The deed from M. C. Tandy to Rosie Tandy also recited a consideration of $1 paid, and that it was "executed for the purpose of dividing the estate of Harry Tandy between M. C. Tandy, father of Harry Tandy, and Rosie Tandy, widow of Harry Tandy," and that, in consideration of the execution of the deed to M. C. Tandy for the land in section 6, he thereby conveyed to Rosie Tandy a 14-acre tract of land in the southeast quarter of the southwest quarter of section 5, township 12 north, range 10 east, known as the Harry Tandy cleared land, and also the Harry Tandy homestead, consisting of the two lots in Osceola. These deeds were executed and delivered on November 1, 1919.

Harry Tandy appears to have owed no debts at the time of his death, except the unpaid purchase money due on one of the town lots, and, after the execution of the deeds described above, Rosie Tandy paid this indebtedness, and discharged the lien reserved in the deed to the lots to secure this purchase money.

Rosie Tandy died testate March 13, 1925, and by her last will and testament devised all of her property to her sister, Marie Smith. M. C. Tandy brought this suit against Marie Smith to cancel the deed executed by him to Rosie Tandy and to have partition of the property, and, as grounds therefor, alleged that the execution of the deed from him had been procured by fraud, and that he had no interest in the property conveyed at the time of the execution of the deed.

The complaint was dismissed as being without equity, and this appeal is from that decree. But little testimony was offered in support of the allegation of fraud, and the court below found the fact to be that there was no fraud, and that allegation is not here relied upon. But it is insisted upon behalf of appellant that his deed conveyed nothing, for the reason that he had no interest subject to conveyance, that he had a mere contingent remainder interest, which did not pass as an after-acquired title under his deed when this contingent remainder vested upon the death of the widow of his son.

The deeds were quitclaim deeds, and appellant cites cases in which it was held that, where one executes a quitclaim deed, he conveys only such interest as he then owns and that another title subsequently acquired does not pass as an after-acquired title under section 1498, C. & M. Digest. This section provides:

"If any person shall convey any real estate by deed purporting to convey the same in fee-simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterward acquire the same, the legal or equitable estate afterward acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance."

The contention that appellant had no interest which he could convey may be disposed of by saying that appellant mistakes the interest which he owned in the property conveyed. No debts were probated against the estate of Harry Tandy, and the only debt he owed was paid by his widow. He had no children. Harry Tandy owned land, which was an ancestral estate, and town lots, which were a new acquisition, and constituted his homestead, and became the homestead of his wife after his death. Section 5523, C. & M. Digest. Appellant had an estate by the...