49 Ark. 242 | Ark. | 1887
In January, 1852, Benjamin A. Boydson died seized and possessed of certain land in Prairie county, in this State. He died intestate, leaving surviving him Jane Boyd-son, his widow, and Joseph, Sarah Ann and Andrew Jackson Boydson, his only heirs and distributees at law. Jane, his widow, intermarried with Willis Price, who, on the 7th of October, 1857, after his marriage, attempted to convey the land, by warranty deed, to James A. Hunter. Price’s wife joined with him in the execution of the deed, and thereby undertook to relinquish her dower in the land to Hunter. On the 26th of November following, Hunter conveyed to Samuel Clement, who took possession of the land and occupied it until some time in January, 1865, when he died intestate, leaving Sarah Clement, his widow, and John C. Clement, Martha Cates and Judy Davis, who \yere his children, his only heirs, him surviving. Sarah Clement continued in possession of the land after the death of her husband, until the latter part of 1871, when she died. In December, 1867, John C. Clement went to his mother, Sarah Clement, and lived with her on the land until her death. Judy Davis also lived on the land with them for a short time, and then died intestate, leaving John and Annie Davis, her only children and heirs, surviving. On the 31st of January, 1872, after the death of his sister, Judy Davis, John C. became the guardian of John and Annie Davis, who at that time were respectively three and five years old, and remained such guardian until 1881, when he was discharged. On the 22d of February, 1872, John C. purchased of Andrew J. and Sarah Ann Boydson their interest in the land. After this he remained in the possession of the land, improved, paid taxes on it, and enjoyed, exclusively, the rents and profits arising therefrom; and at the time this action was instituted was using, holding, and claiming it as his own.
Martha Cates, and John and Annie Davis, by their next friend, brought this action against John C. Clement, in the Prairie Circuit Court, and asked in their complaint that the purchase of defendant be declared a purchase in trust for the use and benefit of the parties to the action, and that the defendant be declared a trustee for plaintiffs, and be charged with the rents and profits, and that the land be sold for partition. The defendant answered. After hearing the evidence, the court decreed and declared that the defendant held the land in trust for plaintiffs, and that he and they were joint owners thereof; and appointed a master, and directed him to take proof and state an account of the rental value of the land for 1872 and every year thereafter, and.charge the defendant with such rent, and also ascertain the value of the improvements made on the land and the taxes paid on it by the defendant, and credit him therewith and with the amount paid for the land when he purchased it. No order was made for the sale or partition of the land. Defendant appealed.
It appears that appellant, while he was guardian, paid out money for his wards on account of their interest in the land in question, and charged himself with the pretended value of that interest and credited himself with the various amounts alleged to have been paid out for them, in his settlement, and that this settlement was confirmed and he has been discharged as such guardian. As he who seeks equity should do equity, we suggest that in the account to be stated between appellant and appellees, the court below require the master to ascertain the amount lawfully expended by appellant for his wards while he was such guardian, and credit him with the same against any amount that is or should be due John and Annie Davis from appellant in this action; and that appellant be credited in the account with 6 per cent, per annum interest on the money paid by him in the purchase of the land in controversy from the date of payment.
Decree affirmed.