66 Ark. 93 | Ark. | 1899
(after stating the facts). It is contended by the appellant that the appellee, the defendant below, in his defense in the circuit court set up a counter-claim, which he had not relied upon in the probate court, and that it was a new cause of action, which could not be set up in defense upon appeal to the circuit court, as it was not relied upon in the probate court. Causes upon appeal to the circuit court are tried de novo, and a defendant may make his defense to the action in that court as he could have done in the court below. While, on appeal to the circuit court, no new cause of action, or cause of action not tried below, can be heard, yet a defendant may say, as in this case, that he does not owe the plaintiff, or that he has paid or satisfied the plaintiff’s demand in whole or in part, and the defense would be proper, and would not be a new cause of action, but merely a defense to the action. We are of the opinion that the defense in this case was hot a counterclaim or set-off, and that it was legitimate.
The father wras the natural guardian of his sons in this case. Acting in the exercise of a sound discretion for their interest, he doubtless invested the rents received from their property by him in making the improvements upon it that it might be productive, and has thus wisely expended the rents received for their benefit. To allow the appellants to recover the rents in this case, without - accounting for the amounts expended for improvements upon the property which produced the rénts, would be to give them their rents twice.
It is true that the lots themselves were an advancement-, as held by this court in this case when first here, but the lots were paid for with the father’s own money. There was no pretence or contention that the rents received by the father were not expended in making improvements upon the property of his minor sons. In fact, that is conceded by the pleadings and issues made in the case. The only contention of the appellees is that the value or cost of these improvements, (1) could not be considered in the circuit court, the same not having been claimed below; (2) that defendant’s claim was bai'red by the statute of limitations; (3) that the improvements were an advancement; (4) that the court erred in allowing the claim for expenditures for improvements. It makes a different case from that where the father bought the lots with his own money in the name of his sons, and there was nothing to show that he did not intend the purchase as an advancement. We are of the opinion that the expenditure of the rents in making the improvements was not an advancement.
The defense of the defendant was not barred by the statute of limitations, as he had a right to make it when the suit was brought.
There was no error in the judgment of the. court save in this, that the court failed to deduct from the defendant’s claim for expenditures for improvements the first item in the account for improvements of two hundred dollars, which the account, itself shows was made in extending a restaurant before the lots were conveyed to the minor sons of the father. This extension was made in 1882. The conveyance in 1887.
Wherefore the judgment is modified by adding two hundred dollars to the recovery of the plaintiff, which will make their recovery $713.50, instead of $513.50 in the court below. With this modification the judgment is affirmed.