Teaver v. Akin

• Decision Date: 13 November 1886
• Citation: 1 S.W. 772,47 Ark. 528
• Parties: TEAVER ET AL. v. AKIN
• Court: Arkansas Supreme Court

1 S.W. 772

47 Ark. 528

TEAVER ET AL. v. AKIN

Supreme Court of Arkansas

November 13, 1886

APPEAL from Little River Circuit Court in Chancery, Hon. H. B STEWART, Circuit Judge.

Decree reversed and cause remanded.

Dan W Jones for Appellant.

The plaintiffs are entitled to recover damages for the pulling down and hauling off the houses, to their value, and equitable damages to the estate by way of loss of rents for want of buildings to house tenants in. Sedgwick & Waite's Trial of Land Titles, sec. 668; 1 Story's Equity, sec 518a.

Defendant took possession of the land in February, 1870, and enjoyed and consumed the rents to January, 1884. He testifies that the rents were worth $ 150 per annum. If Secs. 2644-46 Mansf. Dig., limits plaintiffs' right to recover for rents, to three years previous to bringing suit, plaintiffs can only recover rents for 1879 to 1883, both years included; for the first action was brought in February, 1882, and the receiver took possession in January, 1884. Sedgwick's Trial of Land Titles, secs. 663-4-5.

Equity and justice left unhampered would give plaintiffs the full amount of all rents and profits defendant has realized since 1870 up to 1884. The proof is clear that the rents have been large. There is no proof of substantial or lasting improvements to be set off against the rents. Plaintiffs were infants of tender age in 1870, and brought suit before their majority. They have done no act to mislead or injure defendant, and the denial of rents by the chancellor certainly was a wrong, and shocks every sense of justice and equity.

OPINION

SMITH, J.

This was an action for the recovery of eighty acres of land and mesne profits, and damages for waste in pulling down and removing buildings. The plaintiffs claimed by inheritance from their father, who died intestate in 1865, seized and possessed of the premises by virtue of a patent from the United States. The land was the father's homestead, and the plaintiffs, his only children, were infants at the commencement of the action.

The defendant set up a purchase by him from one Cowling, who, it was averred, had bought from the widow of the deceased intestate. He asserted a claim for taxes paid, and for clearing land. The cause was transferred to equity without opposition, and the answer was made a cross-bill against Mrs. Teaver. She denied that she had ever sold the land, or any interest therein, to Cowling or to any other person. She had remained on the land for one year after her husband's death, and had then removed to a distant part of the state. Her dower had never been assigned, either by the heirs or by any court; and she had released all claims to the plaintiffs before the action was begun, in order that they might have a marketable title.

At the hearing the defendant confessed the superior title of the plaintiffs, but contended for the refunding of his taxes and the value of his improvements. The court was unable to discover that the defendant had made any permanent or valuable improvements, but, on the other hand, it refused to decree against him for the rents and profits. The plaintiffs alone have appealed.

From the depositions on file, it appeared that the uncle of the plaintiffs, who was neither their guardian, nor curator of their estate, had attempted to make an oral sale of the land to Cowling; had received $ 100 in cash, which was applied to the use of the plaintiffs and their mother, and Cowling's note for $ 250, which was still unpaid. The undertaking of the uncle was, upon payment of the price agreed upon, to get authority from the probate court to convey the land. But Cowling had shortly afterwards died. Before his death, however, it seems that he sold the land to Akin, and according to Akin's testimony, was paid in full. Akin says that he held Cowling's bond for title; but this instrument was not exhibited, nor its loss satisfactorily accounted for. Akin had entered in January, 1870, and had taken the rents and profits thenceforward until a receiver was appointed in the present suit. He had moreover, torn down the houses, hauled off the materials and built a house out of them upon his own land adjacent. He had permitted the fencing to rot and decay without renewing them. When he was informed in 1880 by the plaintiffs' attorney that the land belonged to them, he had attorned to them and made his note for the rent of that year; but had afterwards refused to pay it, or to yield possession. There were some eleven acres of tillable land, when he went upon the place; and he had cleared some nineteen acres during his occupancy. But he had worn and abused the land by slovenly culture; so that, in the opinion of some of the witnesses, it was doubtful whether the land he had cleared was now worth more than if it had remained in forest. But at all events it was proved that the use of the land for three years would compensate him for getting it ready for the plow.

The denial of rents to the plaintiffs is shocking to the sense of justice. And the only question is, whether under the betterment act of March 8, 1883, (Mansf. Dig., secs. ...