134 Ark. 519 | Ark. | 1918
This suit was instituted by the appellant against the appellees to quiet the title to and to recover the possession of certain lands in Lee County, and judgment was also asked for the rents and profits during the time that the appellant alleged that she had been deprived of the use of the lands.
The facts are substantially as follows: James Conlan owned the lands in controversy. He died intestate and in possession of the same in 1885. Surviving him was his widow, Mrs. O. Y. Conlan, and appellant, and James G. Conlan, his children. On March 5, 1907, Mrs. O. V. Conlan, the appellant, and her husband, A. J. McDaniel, James G. Conlan and his wife, Effie N. Conlan, executed a deed of trust to secure Goodman Bros, for notes of that date and amounts due as follows: March 25, 1908, $825; March 25, 1909, $770; March 25, 1910, $715; March 25, 1911, $660; March 25, 1912, $605. The mortgage was signed by Mrs. Effie N. Conlan, but the notes were not. James G. Conlan died intestate and without issue in 1908, and Mrs. O. Y. Conlan died intestate in 1910. Prior to the death of her brother, the appellant conveyed her undivided one-half interest in the lands in controversy to one Granger, who conveyed the same to J. M. Baker. James G. Conlan prior to his death paid the first note to Goodman Bros. After the death of James G. Conlan his widow, Mrs. Effie Conlan, took possession of .an undivided one-half interest of which her husband died seized. She used the rents therefrom and other funds of her own not derived from these lands to pay off the remaining notes above mentioned secured by the deed of trust to Goodman Bros.
In her answer, which she made a cross-complaint. Mrs. Effie Conlan set up the payment of these notes and prayed that her dower and homestead interests in the lands in controversy be set apart to her, and that she be subrogated to the rights of Goodman Bros, and J. M. Baker in the notes, which she paid, which with interest .amounted in the aggregate to $3,954.92, and that a lien be declared in her favor for that sum on the lands in controversy, and that unless the sum be paid that the lands be ■sold, etc.
The appellee, Mrs. Effie Conlan, did not allege in her cross-complaint that the land in controversy was the homestead of her husband, James G. Conlan, but she prayed that her homestead interest be set apart to her and testimony was taken without objection on that question. The trial court treated that as one of the issues in the case, and found that the undivided interest of James G. 'Conlan in the lands in controversy was his homestead at the date of his death, he being temporarily absent therefrom, but with the intention to return. The court found that Mrs. Effie Conlan was entitled to the rents and profits of the lands in controversy from the time of her husband ’s death. The court also found that Mrs. Effie Conlan had paid off all the notes under the Goodman Bros, •deed of trust, except the first. The court entered a decree vesting the title in fee to a one-half interest in the lands in controversy in the appellant; and vested the title of the other one-half interest in fee to J. M. Baker, and declared that Mrs. Effie Conlan was the owner of a life estate in •one-half interest in the lands and that the parties were •entitled to a partition according to their respective interests. The court dismissed appellant’s complaint for want of equity, and entered a decree in favor of Mrs. Effie Conlan subrogating her to the rights of Goodman Bros, under the deed of trust in the sum of $4,655.50' with interest at the rate of 10 per cent, per annum from July 25, 1917, and decreed that the same was a lien on the lands in controversy and directed that unless the said sum was paid that the lands be sold to satisfy the same, and appointed a commissioner to execute the decree. The appellant duly prosecuted this appeal. ■
The first question for our consideration is, were the lands, at the time of the death of James G-. Conlan, his homestead?
Mrs. Effie Conlan testified on this issue substantially as follows: At the time of her husband’s death, which occurred in June, 1908, they were living at Hollywood, Miss. They had lived on the place in controversy, which was their home, until a short time before they went to Mississippi. They lived on the place from the time of their marriage (1905) until her husband’s death.' It was their home. Her husband was a contractor engaged in levee business and he. had a temporary job of levee work in Mississippi. It was his plan to go back the first of the year to Lee County. At the time of his death these lands were cultivated for his benefit. On cross-examination Mrs. Conlan was asked whether her husband at the time he was occupying the place was simply holding the same as tenant and she answered, “No, he lived there and it was his home.” She knew it was his home, because it was the only' home that he had. He always said that it was his' home and his mother said that it was.
Appellant testified that James Gr. Conlan, her brother, never did live on the land and make it his home. He occupied it from April, 1906, until December of the same year as a tenant. Appellant received her part of the rent. During the time that her brother lived there, he lived in one of the tenant houses just temporarily. It had two large rooms and two side rooms, it was just a negro tenant house. Negroes had lived in it. Prior to that time he had been living at J. P. Heckler’s, and when he moved off the land he moved to Crittenden County and then to Mississippi. He did not at any other time live on the land or attempt to live on it and when he left he took his stock and all his household and kitchen furniture with him. Since his death his wife had never lived on'the land. If her brother at the time of his death had any other home than the Lee County home, witness did not know it.
The finding of the court that the land in controversy {was the home of James Gr. Conlan at the time of his death in 1908 is not clearly against thé preponderance of the evidence. The testimony of Mrs. Conlan tends to prove that from the time of their marriage in 1905 until the death of her husband in 1908 they lived on the place; that it was their home. While the testimony shows that Conlan was a contractor, engaged in the business of building levees, which necessarily carried him away from Lee County at times, yet the testimony of Mrs. Conlan establishes the fact that this absence from Lee County was temporary, and that the land in controversy, notwithstanding this fact, continued to be their home until her husband’s death.
Her husband, James G. Conlan, was the sole beneficiary of the loan for which the mortgage was executed. While Mrs. Conlan executed the mortgage conveying her homestead and dower rights, it was not her debt and she was under no obligation to pay the same. But she. held the lands in controversy subject to the mortgage and in order to protect her interests from foreclosure it was necessary for her to discharge the mortgage indebtedness. In Spurlock v. Spurlock, 80 Ark. 41, we held that “The right of subrogation to one paying a debt for another is extended to * # * widows discharging debts against their husbands’ estates.”
In Edrington v. Jefferson, 53 Ark. 545, we held, quoting syllabus: “Where a mortgage is paid by one having án interest subject to the mortgage but who is under no obligation to discharge it, as by the widow of the mortgagor, she will be subrogated to the mortgage lien without proof of a specific intent at the time of payment to keep the mortgage alive.” See also Gainus v. Cannon, 42 Ark. 503-516.
Under the above doctrine Mrs. Conlan was entitled to be subrogated to the extent of the principal of the mortgage debt which she paid and to have a lien pro tanto on the property from which she removed the encumbrance. The lien thus given to reimburse her is a creature of equity grounded upon the maxim, “He who asks equity must do equity.” Mrs. Conlan having discharged a debt for which her husband’s estate was primarily liable, she has an equity to be repaid before the estate of her husband shall go to heirs or distributees. As is said in Gainus v. Cannon, supra, “Since she was forced by the sacrifice of her own means to discharge this debt she was entitled to the full restitution in addition to the rents and profits. These she does not take by grace of the husband but by law.”
The right of subrogation and the equitable remedy growing out of such right, which Mrs. Conlan invokes to have a lien declared on the land in controversy, are entirely independent of the deed of trust. It was, therefore, unnecessary to have the trustee and creditors made parties. Mrs. Conlan is not seeking a foreclosure of the deed of trust.
The remaining question is, how much did she pay? This was purely an issue of fact. The chancellor found that she paid all the notes except the first, and the appellant conceded that this finding of the chancellor was correct except as to the second note. The appellant contends that the second note was paid out of the property which belonged to the estate of James Gr. • Conlan consisting of rents from January 1 to June 27, 1908, and other personal property. 'But Mrs. Conlan testified that the personal property which she received from the estate of her husband in the aggregate was but little more than the amount of the second note, all of which was used by her in paying the funeral expenses and other debts of the estate.
No testimony was adduced by the appellant to overcome this. The preponderance of the evidence shows that Mrs. Conlan paid all the notes except the first.
The decree of the court is affirmed except as to the amount of interest allowed Mrs. Conlan, as to this the decree is reversed, and the cause is remanded with directions to enter a decree in accordance with this opinion and for such other and further proceedings as may be necessary to execute its decree.
