77 Ark. 309 | Ark. | 1905
(after stating the facts.) First. There was evidence tending to prove that in the spring of 1896 L. L. Seawell and his mother, A. E. Seawell, made a division of the E. y¿ of the E. y?, of the S. E. y of the S. E. % of section four, township 18 north, range 16 west, containing ten acres, which they held in common. The proof tended to show that L. L. Seawell was to take the west half of the ten acres, and A. E. Seawell was to take the east half thereof; that, in pursuance of such agreement, A. E. Seawell executed her deed to L. L. Seawell. The strongest direct evidence of the fact that there was such a division was the testimony of one Mrs. L. E. Young, who testifies on this point as follows:
“In 1896, in the spring, I think about April, my mother (Mrs. A. E. Seawell) and the defendant E. L. Seawell had a division of the land, by which the defendant L. L. Seawell was to take the west half of the ten-acre tract, and my mother was to have the east half. I was present when my mother signed the deed to the. west half, and the defendant was there also. Mother made the remark, after she signed the deed, that her mind was easy now, that the land was divided, and she had her property to herself.” She also testified that in a conversation with defendant, When A. C. Seawell and Katherine Seawell were present, she said to defendant: “I can tell you just exactly what brought about the division. Mr. Layton wanted )'-ou to give him a deed of trust on the place, and you-wanted mother to sign it, and she would not do it.” And she said: “I will tell you what I will do: I’ll give you the west half, and I will take the east half,” and they agreed to. it; and she made you a deed to the west half, and when she called on you for a deed to the east half you told her you would not make it except for her lifetime, and she would not have it, and the defendant, E. L. Seawell, said: “I know it.”
Mrs. Young is corroborated by A. C. Seawell and Katherine Sowell, as to this conversation, and the exact words spoken by L. E. Seawell when the conversation occurred. In addition to the positive testimony of Mrs. Young that the division took place,, there is much testimony tending to prove that, after Mrs. A. E. Seawell had made the deed to the west half of the ten acres to her son E. L. Seawell, she treated the east half thereof as her own exclusive property. Various acts and declarations of hers, while she was in possession of the tract in controversy, were brought out in the evidence, tending to show that she claimed to be the sole owner of this tract. These acts and declarations were admissible to show the character and extent of her.possession and claim. 1 Ene. Ev. 680, and authorities cited; Ricard v. Williams, 7 Wheat. 59; 24 Am. & Eng. Enc. Law (2 Ed.), 690, and cases cited; Knight v. Knight, 178 Ill. 553.
But it could serve no useful purpose to elaborate the facts. Suffice it to say, there was ample proof to support a finding that Mrs. A. E. Seawell and L. E. Seawell made a division of the ten-acre tract held by them in common, and that the understanding was that she, A. E. Seawell, should get the east half (the 5 acres in controversy), and that he, E. E. Seawell, should get the west half, and that such understanding was-consummated by his taking possession of the west half, and her retaining possession of the east half. Such being the understanding, and effect having been given to it by the reciprocal giving and taking of possession, E. L. Seawell was, in equity, bound by it, although he had not executed a deed evidencing the transfer of title. 21 Am. & Eng. Enc. Law (2 Ed.), 1139 and cases cited. She performed her part of the agreement, not only by surrendering possession to the west half, but by executing a deed .therefor, and she confined her possession and claim thereafter to the east half.
A voluntary partition or division of lands by cotenants may be established by any competent evidence. 21 Am. & Eng. Enc. Law, 1141; Allen v. Seawell, 37 U. S. App. 436; Goodman v. Winter, 64 Ala. 410; Markoe v. Wakeman, 107 Ill. 251.
2. The evidence clearly shows that Nowlin purchased the land in controversy from E- L. Seawell with notice of appellees’ claim. He therefore acquired no rights under his deed from E. E. Seawell as against them. It follows that the court was correct in the finding that A. E. Seawell died seized and possessed of the lands in controversy, and that appellees, as her heirs at law, were entitled to the possession of six-sevenths interest in said land.
, 3. It is contended by appellants that about the year 1890 A. E. Seawell made an agreement with the appellant L. E. Seawell by which he was to place certain improvements on the land in question at his own expense, she to have the use and occupancy of the same during her lifetime, and then he to have her interest in the lands. It is sufficient to say of this contention that, if there was such an agreement, it was afterwards voluntarily annulled by the parties to it when they divided- the land between them. It is reasonable to conclude that all questions of that kind were considered when the division was made. Moreover, it is not clear from the facts and circumstances in proof that the improvements which appellant E. E. Seawell put upon the land in controversy were made with his own means. There is evidence tending strongly to show that A. E. Seawell had furnished money to her son, and that he was in debt to her when she died. It is by no means clear that she did not contribute her part to whatever improvements were put upon the land prior to the division between them.
The chancellor found that the rents and profits of said land collected by the appellant L. L. Seawell offset the taxes and improvements made by him. And we are not prepared to say, after a careful consideration of the facts in the record, that such a finding is clearly, against the preponderance of the testimony.
Affirmed.
