{ "id": 1532267, "name": "Rogers v. Ogburn", "name_abbreviation": "Rogers v. Ogburn", "decision_date": "1915-01-11", "docket_number": "", "first_page": "233", "last_page": "238", "citations": [ { "type": "official", "cite": "116 Ark. 233" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "48 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "42 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723850 ], "opinion_index": -1, "case_paths": [ "/ark/42/0289-01" ] }, { "cite": "71 Ark. 254", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "28 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "85 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523339 ], "opinion_index": -1, "case_paths": [ "/ark/85/0208-01" ] }, { "cite": "31 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879317 ], "opinion_index": -1, "case_paths": [ "/ark/31/0345-01" ] }, { "cite": "49 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309101 ], "opinion_index": -1, "case_paths": [ "/ark/49/0125-01" ] }, { "cite": "44 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893403 ], "weight": 2, "pin_cites": [ { "page": "475" }, { "page": "517" } ], "opinion_index": -1, "case_paths": [ "/ark/44/0458-01" ] }, { "cite": "3 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728351 ], "opinion_index": -1, "case_paths": [ "/ark/3/0147-01" ] }, { "cite": "69 Ark. 539", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724840 ], "opinion_index": -1, "case_paths": [ "/ark/69/0539-01" ] }, { "cite": "53 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911680 ], "weight": 2, "pin_cites": [ { "page": "532" } ], "opinion_index": -1, "case_paths": [ "/ark/53/0449-01" ] }, { "cite": "8 N. H. 477", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6756606 ], "opinion_index": 0, "case_paths": [ "/nh/8/0477-01" ] }, { "cite": "71 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507818 ], "opinion_index": 0, "case_paths": [ "/ark/71/0251-01" ] }, { "cite": "49 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309210 ], "opinion_index": 0, "case_paths": [ "/ark/49/0253-01" ] }, { "cite": "34 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875618 ], "opinion_index": 0, "case_paths": [ "/ark/34/0164-01" ] }, { "cite": "31 Ark. 684", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879334 ], "opinion_index": 0, "case_paths": [ "/ark/31/0684-01" ] }, { "cite": "58 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329195 ], "opinion_index": 0, "case_paths": [ "/ark/58/0303-01" ] }, { "cite": "98 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316087 ], "opinion_index": 0, "case_paths": [ "/ark/98/0570-01" ] }, { "cite": "95 Ark. 18", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543447 ], "opinion_index": 0, "case_paths": [ "/ark/95/0018-01" ] }, { "cite": "75 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502536 ], "opinion_index": 0, "case_paths": [ "/ark/75/0019-01" ] }, { "cite": "67 Ark. 517", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152570 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/67/0517-01" ] }, { "cite": "69 Ark. 539", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724840 ], "opinion_index": 0, "case_paths": [ "/ark/69/0539-01" ] } ], "analysis": { "cardinality": 531, "char_count": 10389, "ocr_confidence": 0.431, "pagerank": { "raw": 3.677442738672218e-07, "percentile": 0.8912394120274966 }, "sha256": "30be10bf032ab2e3447ae6d19e421948c57f0b91e7655c513ccdc3a076bf09f9", "simhash": "1:a0408922b93b4e0a", "word_count": 1862 }, "last_updated": "2023-07-14T15:16:08.473761+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Rogers v. Ogburn." ], "opinions": [ { "text": "McCulloch, C. J.\nThis is an action to recover possession of a tract of land in Desha County, .all of the parties claiming title to the land from .a common source. The land was formerly owned toy one Isaac Adair, who executed a deed on June 21, 1887, to his wife, Nancy J. Adair, \u201cand the heirs of her body lawfully begotten.\u201d The plaintiffs, J. J. Rogers and Ida M. Jackson, are the only children of Nancy J. Adair, and the latter executed to the plaintiff, Rogers, on December 5, 1892, a deed of \u25a0gift, conveying her interest in the property to him. On August 13, 1904, plaintiff Rogers and his mother, Nancy J. Adair, executed to the defendants ia deed, conveying the property, and Nancy J. Adair died in the year 1911. These facts are set out in the complaint, and the defendants demurred.\nPlaintiff Rogers parted with his title and all interest in the land by executing a conveyance to the defendants. Therefore the trial court was Correct in sustaining a demurrer as to him. It is alleged in the complaint that Rogers signed the deed \u201cto convey only what title she (his mother) had previously conveyed to him, and that he at that time had no other title to convey, he having no further right or title until his mother\u2019s death.\u201d It is argued now that this allegation constituted grounds for transfer of the cause to equity. -\nWe are \u25a0unable to understand how this allegation can be construed as a statement of facts constituting grounds for equitable relief. It is shown in the complaint that the plaintiff Rogers conveyed away his interest in the land to the defendants, and the language quoted above does not impair the effect of his conveyance or 'afford any grounds for setting it aside.\nThe case stands in a different attitude so far as concerns the rights of plaintiff Ida M. Jackson. The conveyance of Isaac Adair created what would at common law have constituted an estate tail, but which under the statutes of this State is converted into a life estate with remainder in fee to the persons to whom the estate tail would have passed. Kirby\u2019s Digest, \u00a7 735. In other words, Nancy J. Adair took an estate for life with remainder in fee to the plaintiffs, who are her only Children. Wilmans v. Robinson, 67 Ark. 517; Wheelock v. Simons, 75 Ark. 19; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Dempsey v. Davis, 98 Ark. 570.\nIt is argued that the language of the conveylanee brings it within the operation of the rule in Shelley\u2019s case, as discussed in the case of Hardage v. Stroope, 58 Ark. 303, but the language of the conveyance is diff erent and does not fall within the rule. This is fully explained in Wilmans v. Robinson, supra, where the language of the two conveyances, is 'distinguished. It follows, therefore, .that plaintiff Ida M. Jackson is seized in fee simple of an undivided half of the lands in controversy, which interest was by the death of her mother freed from the life estate which encumbered it.\nIt is urged, however, that the complaint shows on its face 'that the right of action of said plaintiff is barred by the statute of limitation, and for that reason the ruling of the .court in sustaining the demurrer should be affirmed. The statute of limitation can not be raised by demurrer in actions at law, .except in oases where the complaint shows affirmatively, not only that the statutory period has elapsed, but that no. facts exist which takes the case out of the operation of the statute. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; St. Louis, 1. M. & S. Ry. Co. v. Brown, 49 Ark. 253.\nWe deem it proper, however, in view of the fact that the case must be remanded for further proceedings, to'say that according to the facts set forth in the complaint the .action is not barred. The statute did not begin to run until the death of the life tenant, which occurred less than two years \u00a1before the action was instituted. Morrow v. James, 69 Ark. 539.\nIt is insisted that the conveyance toy the life tenant to one of the remaindermen operated as. a surrender of the life estate and extinguished it, and for that reason the statute of limitation began to run in favor of the defendants, who occupied .the lands adversely from the time of the conveyance to them. That is undoubtedly the rule where there is such a surrender of the life estate as extinguishes it by merger into the estate in remainder. \u201cSurrender,\u201d said Chancellor Kent, \u201cis the yielding up. of an estate for life or years, to him that hath the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement.\u201d 4 Kent Comm. (14 ed.) p. 114. The existence of that rule has been recognized by this court. Hayes v. Goldman, 71 Ark. 251. So if there had been a surrender to the remaindermen which extinguished the life estate, the statute of limitation might run against the remaindermen. The conveyance by the life tenant to one of a number of remaindermen who are tenants in common does not, however, constitute a surrender so as to extinguish the life estate, >as there is no merger in that case and the grantee of the life estate holds, as against his tenant or tenants in common, both estates separately. Sperry v. Sperry, 8 N. H. 477. The grantee of the life estate has, under those circumstances, a right to hold the estate for and during the life of the original life tenant and the statute does not toegin to run against another tenant in common until the expiration of that estate.\nThe judgment is affirmed as to the plaintiff J. J. Rogers, hut reversed as to plaintiff Ida M. Jackson and the cause remanded with direction's to overrule the demurrer to the complaint.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ ". Roscoe R. Lynn, for appellant.", "F. M. Rogers, for appellees.-" ], "corrections": "", "head_matter": "Rogers v. Ogburn.\nOpinion delivered January 11, 1915.\n1. Actions \u2014 tranfer to equity \u2014 estate tail \u2014 transfer of heir\u2019s interest. \u2014 A. devised land to N. \u201cand the heirs of her [body.\u201d N. executed a deed of gift conveying her interest in the property to R., her son, and laiter N. and B. tooth executed a deed to the property to the defendants. In an action at law, after N.\u2019s death, hy the heirs of her body to recover the land, held, R. hy his deed parted with all his interest in the land, and that an allegation toy defendant of the above facts would not authorize a transfer of the action to equity.\n2. .Estate tail \u2014 under Arkansas statute. \u2014 A devise of property to N. and the heirs of her body, under Kirby\u2019s Digest, \u00a7 735, gives to N. an estate for life with remainder in fee to her children.\n3. (Life estate \u2014 conveyance by life tenant \u2014 bight of remainderman. \u2014Land was devised to N. and \u201cthe heirs of her body lawfully begotten.\u201d N. had two children, one of them with N. conveyed his iruteresjt in the property to defendants. After N.\u2019s death, held, N.\u2019s other child was seized in fee simple of an undivided one-half interest in the land in controversy.\n4. Limitation of actions \u2014 how raised by demurrer \u2014 action at law. \u2014The statute of limitations can not toe raised toy demurrer in actions at law, except in eases where the complaint shows affirmatively, not only that the statutory period has elapsed, but that no facts exist which would take the case out of the operation of the statute.\n5. Limitation \u2014 action by remainderman of life estate. \u2014 The statute of limitations does not 'begin to run against the remainderman of a life estate, until the death of the life tenant.\n6. Life estate \u2014 surrender to one remainderman, \u2014 The conveyance by a life tenant to one of a number of remaindermen who are tenants in common, does not constitute a surrender so as to extinguish the life estate, and there is no merger in that case, and the grantor of the life estate holds, as against his tenant or tenants in common, both estates separately.\n7. Life estates \u2014 conveyance by life tenant \u2014 rights of remainder-men \u2014 limitations.\u2014Where a life tenant of land conveyed away his interest in the same to one of several remaindermen, the grantee of the life estate has a right to hold the estate for and during the life of the original life tenant and the statute does not begin to Tun against another tenant in common until the expiration of that estate.\nAppeal from Desha 'Circuit Court; Antonio B. Grace, Judge;\nreversed as to Jaickson; affirmed as to Bogers.\n. Roscoe R. Lynn, for appellant.\n1. Both, parties claim title through Isaac Adair, deceased. The complaint is sufficient. 53 Ark. 449 ; 79 Id. 532. The is-even years statute of limitations i.s applicable land did not commence to run as to the remainder-men until the death of the life tenant. The suit was brought within two years. 69 Ark. 539.\n2. The grant created 'an -estate tail- under the earliest decisions. 3 Ark. 147-195. But under Kirby\u2019s Dig., \u00a7 735, it created a life estate with remainder in fee simple \u00a1absolute to- 'appellants. 44 Ark. 458, 475; 67 Id. 517; 72 Id. 336; 75 Id. 21; 95 Id. 21; 98 Id. 570. No conveyance by the life tenant could affect the title of the remainder-men. 49 Ark. 125. If appellees own the half interest of Bogers, they and Ida M. J ack-s-on are tenants in common, and they have totally denied Ida M. Jackson\u2019s rights and ejectment will be for her interest -and rents and profits. 31 Ark. 345; 40 Id. 155.\n3. The -conveyance -from B-ogers- -only, conveyed the life estate o-f the mother. The cause should have been transferred to equity as to Joseph J. Bogers. Kirby\u2019-s Dig., \u00a7 6991; 85 Ark. 208; 87 Id. 206, 211; 107 Id. 70; 108 Id. 283, 291.\nF. M. Rogers, for appellees.-\n1. The deed from Bogers and his mother vested Bogers\u2019 interest in fee simple in the appellees. \u201cLiving witnesses\u201d can not be heard to explain away the effect of a deed in fee simple, -or -construe a will. This is for the court.\n2. Jacks-on is barred by limitation. A demurrer raises the question -of limitation -at law or in equity. Kirby's Dig., \u00a7 \u00a7 5980, 5981, 6093; 28 Ark. 7; 77 Id. 539; 95 Id. 333. Especially is this true when the complaint shows that the bar has 'attached.\n3. By her conveyance Mrs. Adair \u201csurrendered\u201d her estate for life. 4 Kent 103; 16 Cyc. 645; 18 Am. & E. Enc. .Law (2 ed.) 355; 71 Ark. 254. One tenant in common can oust another, .and iby holding adversely bar the other and acquire title. 42 Ark. 289.\n4. The rule in \u201cShelly\u2019s case\u201d is clearly stated in 4 Kent. 215 and 48 Ark. 303. The life estate was surrendered in 1892, and Jackson\u2019s right of entry accrued then. The act of her co-tenant amounted to ouster in law and she is barred." }, "file_name": "0233-01", "first_page_order": 249, "last_page_order": 254 }