Walker v. Eller

• Decision Date: 29 October 1928
• Docket Number: 217
• Citation: 10 S.W.2d 14,178 Ark. 183
• Parties: WALKER v. ELLER
• Court: Arkansas Supreme Court

10 S.W.2d 14

178 Ark. 183

WALKER v. ELLER

No. 217

Supreme Court of Arkansas

October 29, 1928

Appeal from Sevier Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

Steel & Edwards and DuLaney & Steel, for appellant.

Collins & Collins, Lake, Lake & Carlton and E. F Friedell, for appellee.

OPINION

HUMPHREYS, J.

Appellants, except Penn Walker, are the only legal heirs of Lucy Walker, deceased, who died intestate on the 22d day of January, 1926, Penn Walker being her husband and the other appellants her children. Lucy Walker was a niece of John H. Hamilton, an aged bachelor, who died on March 8, 1926, holding the legal title and residing upon the following real estate, to-wit: "The southwest quarter of the northeast quarter, part of the northeast quarter of southwest quarter, section 8, township 11 south, range 29: west half of the east half and the east half of the west half, section 17, township 11 south, range 29 west, containing in all 275 acres, more or less, all in Sevier County, Arkansas." Appellees are the only other legal heirs of John H. Hamilton, deceased, and are either nieces and nephews or grandnieces and grandnephews.

The appellants were residing with and caring for John H. Hamilton at the time of his death, and continued to reside upon and operate the farm after his death, and are still residing thereon.

On the 16th day of August, 1926, appellees brought this suit against appellants in the chancery court of Sevier County, for partition of said lands and an accounting for rents and profits derived therefrom, alleging that they owned an undivided three-fourths interest and appellants an undivided one-fourth interest therein. Appellants filed a demurrer to the complaint, alleging, among other grounds, that the chancery court had no jurisdiction of the subject-matter contained in the complaint. No reason was assigned in the demurrer why said court was without jurisdiction. The court overruled the demurrer, over appellants' objection and exception.

On December 4, 1926, appellants filed an answer, reserving their exception to the overruling of their demurrer, denying the material allegations of the complaint, and a cross-complaint alleging sole ownership of the lands under and by virtue of an executed oral contract whereby John H. Hamilton agreed with them, about the first of June, 1919, to convey them the land by deed or will, in consideration that they take care of him the rest of his life, by furnishing him with such moneys, clothes, food and home comforts as he needed, and pay the taxes and keep up the repairs on the land. They further alleged that, pursuant to the agreement, John H. Hamilton executed a will on the 10th day of June, 1919, in which, after making specific legacies to all his other heirs, he devised the lands in question to Lucy Walker, the wife of Penn Walker and the mother of the other two appellants, which will was duly proved and probated. They further alleged that, in the performance of the contract on their part, they expended large sums for improvements, repairs, taxes, and in the care and support of John H. Hamilton for each year from the year 1919 to the year 1926, inclusive, for which amounts they prayed a lien upon the lands in the event the court should find the contract and will ineffective to vest such an equitable title to the lands in them as would warrant the court in vesting the legal title thereto in them.

Appellees filed a reply to the cross-complaint, denying all the material allegations therein, and interposed the additional defenses of the three-year statute of limitations, and the statute of non-claims, and an offset of rents against the claim, and a prayer for a lien against the lands for improvements, repairs, taxes and the care and support of John H. Hamilton during the years 1919 to 1926, inclusive.

The cause was heard upon the pleadings and testimony, which resulted in the following findings and decree by the court: That no oral contract as alleged was entered into between Walker and the testator, John H. Hamilton; that the legacy to Lucy Walker had lapsed, because she predeceased the testator by two months; but that said taxes paid and certain improvements made upon the real estate were relevant to the will, to-wit: Cost of tenant house, $ 200; cost of addition to dwelling house, $ 400; cost for drilling well, pump and equipment, $ 500; cost of shed to barn, $ 100; cost of repairs to hay barn, $ 75; cost of bridge built to pass from one side of the farm to the other, $ 100; amount paid for road improvement taxes, $ 591.73; expenses paid in the last illness and for funeral expenses of the deceased, John H. Hamilton, $ 495; cost of clearing seven acres of land, $ 70; amounting in all to $ 2,531.73. That appellee should be allowed an offset against said total amount for the rental value of the lands for the years 1926 and 1927, amounting to $ 800; and decreed a lien upon the land for balance due for said improvements made and taxes paid by Penn Walker; that appellees and appellants were owners and tenants in common of said land, and mat a partition could be had when so desired by the parties. Each party appealed from the findings and decree in so far as same were adverse to them respectively.

The record reveals, according to the undisputed facts, that John H. Hamilton, an aged bachelor, was the owner of a farm consisting of 275 acres, of the value of $ 14,000, in Sevier County. He was residing upon the farm alone in 1918, and, in order to be more comfortable, rented the farm to Penn Walker...