Wilson v. McDaniel

• Decision Date: 26 January 1970
• Docket Number: No. 5--5126,5--5126
• Citation: 449 S.W.2d 944,247 Ark. 1036
• Parties: Burniss Shaw WILSON et al., Appellants, v. J. F. McDANIEL et al., Appellees.
• Court: Arkansas Supreme Court

Page 944

449 S.W.2d 944

247 Ark. 1036

Burniss Shaw WILSON et al., Appellants, v. J. F. McDANIEL et al., Appellees.

No. 5--5126.

Supreme Court of Arkansas.

Jan. 26, 1970.

Tompkins, McKenzie & McRae, Prescott, for appellants.

W. D. McKay and Larry W. Chandler, Magnolia, for appellees.

HARRIS, Chief Justice.

The land in issue in this litigation is a 40-acre tract situated in Columbia County. Appellants are three great grandchildren of H. U. Hancock, who died intestate in 1905, seised of this property. Hancock's wife, Eunice (or E.E.), held a life estate, but, it is asserted by appellants, was given a deed from all of the Hancock children, J. H. Hancock, W. J. Hancock, Katie Tye and Carrie M. Frazier, conveying their interest, the deed being joined in by Henry Scott and B. C. Scott, grandchildren, being two of five sons of Palestine Scott, a deceased daughter of H. U. and Eunice. This deed was dated November 18, 1905, and purportedly conveyed a 22/25 interest in the lands, but the deed was not recorded until 1930. Eunice Hancock thereafter died sometime prior to June 23, 1908, leaving a will which was admitted to probate on the date last mentioned. Under the terms of this will, she devised all of her real estate to her son, J. H. Hancock, for his lifetime, and at his death to her granddaughters, Myrtle Hancock and Bertha Bethany, share and share alike, and at their deaths to their children, or to the children of either, should one or the other die without issue. Bertha, 73 years of age, is still living, and has no issue. Myrtle (Shaw) died in 1965, leaving three children, Burniss Shaw Wilson, Beatrice Shaw Haley, and Byford Shaw. These, together with Mary Shaw, wife of Byford, are the appellants herein. An exchange of instruments in 1913 between J. H. Hancock and his daughters, Bertha and Myrtle, resulted in Bertha's receiving the life interest of her father and Myrtle to the 40 acres here involved. Thereafter, during the same year, Bertha conveyed her interest in this land to A. S. Frazier. During the latter part of the year, Frazier and his wife (a daughter of H. U. and Eunice Hancock) purported to convey the land to J. R. McDaniel. J. F. McDaniel, who claimed ownership at the time of the institution of this suit, ¹ was a son of J. R. McDaniel, and had been given a deed by his brothers and sisters, these grantors and grantee being all of the heirs of J. R. McDaniel. Subsequently, Bertha Bethany quitclaimed her interest in the land to J. F. McDaniel. McDaniel's predecessors entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Appellants instituted suit, contending that they are the owners of an undivided 22/50 interest in the involved acreage; that McDaniel only had an undivided 3/25 interest, and an estate for the life of Bertha Bethany in an undivided 22/50, appellants holding the remainder. Appellees contend that they are the owners of the land by adverse possession. Both sides moved for summary judgment, supporting their respective positions by affidavits, exhibits, and depositions. The court granted a summary judgment to appellees, holding that the 'McDaniel' title ripened prior to 1930 (when the deed from the Hancock children to Mrs. Eunice Hancock was recorded); that the recordation was the first notice the McDaniels had of any remainder claim to the property created by the will of Eunice Hancock, since that will did not specifically describe the lands left to the son, J. H. Hancock, but simply devised to him 'all of my real estate.' Title was quieted and confirmed in McDaniel as against any claim of appellants, and their complaint was dismissed for want of equity. From the decree so entered, appellants bring this appeal. For reversal, it is simply asserted that the claim of appellants is not barred by limitations, and they are entitled to partition.

Let it be remembered that this is a summary judgment. We have said many times that a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Weathers v. City of Springdale, 239 Ark. 535, 390 S.W.2d 125. Accordingly, in determining whether this judgment should be affirmed, we are interested simply in ascertaining whether there is any genuine issue as to any material fact. Very quickly, we hold that there is a disputed material fact question not answered by the pleadings, affidavits, exhibits, or depositions. This question is whether the November, 1905, deed to Eunice Hancock from her children and two grandchildren, was delivered to her during her lifetime. Of course, a deed is inoperative unless there has been delivery to the grantee. Van Huss v. Wooten, 208 Ark. 332, 186 S.W.2d 174. A number of cases are discussed in this opinion, including Thomas v. Langley, 200 Ark. 220, 138 S.W.2d 380, wherein this court said that the proof showed that Langley in 1919 executed a deed conveying his land to his mother. From the opinion:

'It was not shown that the deed was ever actually delivered to the grantee, but after Langley's death the deed was found among his papers. Langley's mother lived with him on the land until her death in 1928, and shortly afterwards Langley married. There was testimony tending to show that the land was bought with money belonging to Langley's mother, that Langley had stated that he had used his mother's money in buying the land and that he had deeded the property to her. We held in that case that the evidence was insufficient to establish delivery of the deed.'

Further, quoting from the earlier case of Taylor v. Calaway, 186 Ark. 947, 57 S.W.2d 410, it was stated:

'In order to constitute a delivery of a deed, it must be the intention of the grantor to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed.'

It is admitted by appellants that appellees and those under whom they claim took possession of the lands in 1913, and have continued in possession and paid the taxes since that time. As previously stated, appellees claim title on the basis of adverse possession, but appellants contend that they (appellants) had no right of entry on the property, nor any cause of action, until the death of their mother, Myrtle Shaw (also known as Myrtle Hooper) in 1965, this occurrence giving them an undivided 22/50 in fee. They also claim an additional undivided 22/50, subject to appellees' rights during the lifetime of Bertha. It is thus seen that appellants' contention for reversal, as well as their own claim to the property, is predicated on our cases which hold that a right of action in one who owns a remainder interest does not accure until the death of the person holding a life estate. A number of cases are cited in support of this contention, including Smith v. Maberry, 148 Ark. 216, 229 S.W. 718, LeSieur v. Spikes, 117 Ark. 366 175 S.W. 413, and Hayden v. Hill, 128 Ark. 342, 194 S.W. 19. In this last case, the court pointed out that a remainderman has a right to attribute the possession of the premises involved by some third party, to some sort of contract with the life tenant. It then added:

'* * * Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee.'

This is a consistent holding in this state, though the next sentence after the above quotation in Hayden is:

'In the instant case, it is conceded...