| Ark. | Apr 2, 1923
Appellants, who were the plaintiffs below, brought this suit to quiet their title to a forty-acre tract of land. They claimed by purchase from J. W. Burchfield, whose title, they allege, became perfect before his sale to them, by reason of his long-continued adverse possession thereof. The deed from Burchfield to them was dated March 11, 1921. The defendants obtained deeds from the heirs of Alice Smith, who died intestate on the - day of May, 1897.
The testimony established the following facts: In December, 1893, or January, 1894, Mrs. Smith and J. E. Smith, her husband, executed to Burchfield a bond for title to the land in litigation. The title to the land was in Mrs. Smith, but her husband acted for her in the transaction, and was her authorized agent. After contracting to buy the land, Burchfield commenced to clear and cultivate it, and by the end of 1896 had it all in cultivation except five acres. Burchfield made payments every year out of the proceeds of the sale of his cotton, which Smith handled, after paying Smith his supply bills. Burchfield completed his payments and received his deed from Smith January 7, 1904. At the time of Mrs. Smith’s death she was survived by six minor children, in addition to her husband, who died July 18, 1919.
The prayer of the complaint was denied, and it was dismissed for want of-equity.
The action of the court is defended in a very interesting brief in which the following argument is made. Mrs. Smith was a married woman when the bond for title was made. The bond for title was an executory contract, and unenforceable as such. Mrs. Smith never made a deed to Burchfield, and after her death her husband became entitled to the possession of the land as tenant by the curtesy, and his deed purporting to convey the fee was effective only as a conveyance of his life estate, and the statute of limitation was not set in motion against her lieirs, the remaindermen, until the death of the husband, the life tenant, and this suit was brought before this adverse possession ripened into title.
The trouble with the argument on behalf of the remaindermen is that they blow both hot and cold on the effect of the bond for title.
It is true that Burchfield’s entry under the bond for title was permissive, and that he remained in possession under this contract until after the death of Mrs. Smith before he obtained his deed. But this bond for title should be given effect, or it should be disregarded. It, should not be regarded as a valid instrument for the purpose only of making Burchfield’s entry permissive, but invalid for all other purposes. If it was valid as a contract, then its conditions were performed by Burch-field by payments made to Mrs. Smith’s constituted agent; and if this is true, then Burchfield, in ecmity, would be entitled to a deed, if the one he obtained from Smith did not convey the title. We prefer this view of the case. The bond for title was voidable, when made, because it was a married woman’s executory contract, and it remained a voidable executory contract until after the passage of the act of March 19, 1895 (Acts 1895, p. 58), authorizing married women to make executory contracts to convey real estate. Mrs. Smith did not die until May, 1897. So she lived two years after the passage of the act authorizing her to make an executory contract, and it is insisted that, after the removal of her disability, she ratified the contract.
We regard this as the controlling question in the case. After the passage of the act of 1895, supra, a married woman was authorized to make an executory contract to convey land. As an incident to that 'right; she likewise was authorized to ratify an executory contract of that kind previously made, which had been unenforceable only because of her disability. Did Mrs. Smith ratify the contract?
"We are constrained to answer this question in the affirmative. The parties all lived in the neighborhood of the land. Smith was unquestionably his wife’s agent in the transaction. He put Burchfield in possession of the land as purchaser under the bond for title. Burch-field immediately began to clear and improve the land, and by the end of 1896 had it all in cultivation except five acres. The clearing was all done in Mrs. Smith’s life time, and she must have known of -it. She had actual knowledge that Burchfield was on the land, for her bond for title entitled him to enter thereon, and a substantial part of the clearing was done after the passage of the act of 1895. She knew that the consideration was $350, for this was the consideration recited in the bond for title, and she knew, as a matter of law, that when it was paid Burchfield would be entitled to a deed.
She had actual knowledge that Burchfield was delivering cotton to her husband, for on one occasion Burch-field brought two bales of cotton to Smith’s yard,_ and was about to throw the cotton off the wagon, but there had been a heavy rain and the yard was wet and muddy, and Mrs. Smith said to Burchfield, “I would never throw that cotton off until I had sold it,” and Burchfield obeyed this direction.
There is nothing in the record that calls into question the good faith of this transaction. Smith and his wife are both dead, yet Burchfield, who is not a party to this litigation, manifests- no disposition to take advantage of that fact as a witness.by stating that payments were made to Mrs. Smith directly; but the circumstances were such that Mrs. Smith must have known that payments were being made to her agent, and that her vendee was, in good faith, clearing the land — all this after the removal of her disability; and she must therefore be held to have ratified the contract of sale evidenced by the bond for title.
The land was not very valuable at the time Burch-field contracted to buy it, as is evidenced by the fact that he only agreed to pay $350 for it. We do not know when the last payment was made, nor what amount was paid after Mrs. Smith’s death, but we do know that the balance was paid to Smith, and that in 1904 he executed a deed to Burchfield, pursuant to the bond for title.
Smith’s children were minors, and lived with him. It does not appear what estate their mother left, nor whether there was any administration on her estate. We do not know by what authority Smith made collections of the unpaid purchase money after his wife’s death, if he made any. This point was not developed, and any collections thus made must have been comparatively small, and after this lapse of. time we think it fair to assume that Smith properly accounted for such collection, if any he made.
Burchfield had possession under a bond for title which, by ratification, became valid. This possession began in 1894 and continued uninterrupted since that date until the execution of his deed to the plaintiffs, who have since been in possession. Burchfield obtained a deed from Smith in 1904, which, if valid for no other purpose, at least evidenced the fact that Burchfield had paid the purchase money called for in the bond for title. Burch-field conveyed to the plaintiffs here March 11, 1921, after lie had had seventeen years’ possession, and the only thing which is suggested as having prevented this possession from ripening into title is that, after Mrs. Smith’s death, her husband became tenant by the curtesy and entitled to the possession as such, and the deed from him in 1904 was éffective as a conveyance of his life estate and valid as such, and operated to prevent the running: of the statute of limitations.
But Burchfield’s possession was not referable to the deed from Smith. He had a prior possession and the x’ight of possession under his bond for title, and, in ■equity, he became entitled to a deed from Mrs. Smith upon the completion of his payments, and if she were alive she could be compelled to execute a deed, and this right is not to be defeated because Burchfield took a deed from the life tenant. Burchfield was entitled to more than Smith’s deed gave him, and equity will award him now the relief to which he became entitled when he completed the payments on his land.
To that end the decree of the court below will be reversed, and the cause remanded, with directions to caucel the title of the defendants.