148 Ark. 216 | Ark. | 1921
(after stating the facts). The record shows that on October 1, 1845, the land in question was granted by the United States to Charles Newman and a patent was issued to him. After his death intestate in October, 1865, his heirs conveyed said land, by deed, to Elizabeth Newman. She married Thos. J. Bentley, and in 1866 died, leaving surviving her Thos. J. Bentley, her husband, and infant daughter, the sole issue of their marriage. The infant daughter who was the issue of the marriage of Elizabeth Newman with Thos. J. Bentley is now Ada Bentley Morrison. On the 24th day of January, 1919, the latter executed a special warranty deed to A. F. Maberry. So that it will be seen that the legal title to the land is in A. F. Maberry.
The defendants and other grantors have been in possession of the land since some time prior to 1876 and claim title to the land by adverse possession. Their •claim is not tenable. Thos. J. Bentley did not die until the 25th day of July, 1919. In 1866 he became tenant by the curtesy, and by virtue thereof he obtained an estate in the land for his life. Neelly v. Lancaster, 47 Ark. 175. It is true he conveyed his interest in the land to the grantors of the defendants, but he did not die until the 25th day of July, 1919.
It is well settled in this State that prior to the death of a tenant for life, neither his possession nor the possession of his grantee is adverse to the remainderman or reversioner. Hence the statute of limitations does not begin to run against the remainderman or reversioner until the death of the life tenant,- The reason is that no one can be in default in not bringing an action which, he could not have maintained, if brought; and that no statute of limitations can commence to run until the time comes when the person claiming title or right of possession can successfully maintain his action. Neither the possession of the life tenant nor his grantee can by any possibility become adverse to the reversioner or remain-derman for the reason that such possession is not an interference with the rights of the latter. Jones v. Freed, 42 Ark. 357; Moore v. Childress, 58 Ark. 510; Gallagher v. Johnson, 65 Ark. 90; Ogden v. Ogden, 60 Ark. 70, and Stricklin v. Moore, 98 Ark. 30.
It is contended, however, that the facts of this case constitute an exception to the general rule. The record shows that J. "W. Aiken was in possession of the land when he died the first of the year 1876. It is not shown what paper title, if any, he had. As already seen, he could not have acquired title against 'the remainderman by adverse possession.
The probate court ordered the land of Aiken to be sold for the payment of his debts. Thos. J. Bentley became the purchaser at the sale and entered into possession of the land. He conveyed the land by warranty deed to DeWitt C. Ashley. The deed purports to convey the fee in the land. This, it is claimed, constituted an abandonment by Thos. J. Bentley of his life estate and puts the statute of limitations in motion. During the continuance of the life estate of Bentley, possession by his grantee under a deed purporting to convey the fee would not be adverse to the remainderman, so that the statute of limitations would be set in motion against him because the re-mainderman would have no right of action to recover the possession of the land during the continuance of the life estate. As said in Christie v. Gage, 71 N. Y. 189, the conveyance by the tenant for life of a greater estate than he possessed does not work a forfeiture, and the remain-derman after the conveyance, as before, has no right to possession during the continuance of the life estate. See, also, Pickett v. Pope, 74 Ala. 122; Pendley v. Madison’s Admr., 83 Ala. 484; Mallus v. Snowman, 21 Me. 201; Stevens v. Winship, 1 Pick. 318; 11 Am. Dec. 178; Jackson v. Mancius and Vanderheyden, 2 Wend. (N. Y.) 357; Barrett v. Stradl, (Wis.) 9 Am. St. Repts. 795; Mettler v. Miller, 129 Ill. 630, and Constantine v. VanWinkle, 6 Hill (N. Y.) 177, and case note to 19 L. R. A. at p. 841.
Connsel for the defendants also invoke the doctrine of laches as a defense to the suit. It is well settled that the estate of the heirs of the wife as remainderman is distinct from that acquired by her husband as tenant by the curtesy. Hence they can not be affected by any act of the life tenant or his grantee.
The rule is stated by Chief Justice Kent in Jackson v. Schoonmaker, 4 Johns. N. Y., p. 390, at 402, as follows:
“Neither a descent cast, nor the statute of limitations, will affect a right, if a particular estate existed at the time of the disseisin, or when the adverse possession began, because a right of entry in the remainderman can not exist, during the existence of the particular estate; and the laches of a tenant for life will not affect the party entitled. An entry to avoid the statute must be an entry for the purpose of taking possession, and such an entry can not be made during the existence of the life estate.” (Citing cases.)
In Tiedeman on Real Property (2 ed.), par. 400, it is said: ‘ ‘ The tenant can not do anything to defeat a vested remainder; a disseisin of the tenant affects the remainder in no manner. Nor can the possession of the tenant be deemed adverse to the remainderman, either for the purpose of preventing the latter from conveying his interest or with a view to defeat it under the statute of limitations, unless the possession be continued after the termination of the particular estate. The statute of limitations does not begin to run until the remainderman takes effect in possession.”
The rule was recognized by this court in Lesser v. Reeves, 142 Ark. 320, where the court held that the doctrine of laches has no application where the plaintiffs are not seeking equitable relief, and the action is not barred .by tbe statute of limitations. . To tbe same effect, see Anders v. Roark, 108 Ark. 248, and Galloway v. Battaglia, 133 Ark. 441.
There is nothing in tbe record tending to show that the defendants were induced to change their condition with respect to the land-by any conduct on the part of the plaintiff, -and the plaintiff is not guilty of laches.
It follows that the decree must be affirmed.