{ "id": 1580479, "name": "Henson v. Breeze", "name_abbreviation": "Henson v. Breeze", "decision_date": "1917-05-14", "docket_number": "", "first_page": "155", "last_page": "159", "citations": [ { "type": "official", "cite": "129 Ark. 155" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "58 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329195 ], "opinion_index": -1, "case_paths": [ "/ark/58/0303-01" ] }, { "cite": "12 Atl. 313", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "118 Pa. St. 42", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 556775 ], "opinion_index": -1, "case_paths": [ "/pa/118/0042-01" ] }, { "cite": "38 L. R. A. 694", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "27 S. E. 411", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "95 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "117 Mo. 414", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 467808 ], "opinion_index": -1, "case_paths": [ "/mo/117/0414-01" ] }, { "cite": "36 Mich. 105", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1343711 ], "opinion_index": -1, "case_paths": [ "/mich/36/0105-01" ] }, { "cite": "88 N. E. 818", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "83 N. W. 963", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "112 Iowa, 210", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2103959 ], "opinion_index": -1, "case_paths": [ "/iowa/112/0210-01" ] }, { "cite": "37 N. E. 999", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "92 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548525 ], "opinion_index": -1, "case_paths": [ "/ark/92/0260-01" ] }, { "cite": "72 Ark. 366", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "459" } ], "opinion_index": -1 }, { "cite": "67 Ark. 517", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152570 ], "opinion_index": 0, "case_paths": [ "/ark/67/0517-01" ] }, { "cite": "44 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893403 ], "opinion_index": 0, "case_paths": [ "/ark/44/0458-01" ] }, { "cite": "58 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329195 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/58/0303-01" ] } ], "analysis": { "cardinality": 482, "char_count": 8136, "ocr_confidence": 0.502, "pagerank": { "raw": 8.78482719533812e-08, "percentile": 0.49591424055997085 }, "sha256": "a6e83466e5cd3489fd7ffd91a3ecf3be793add44f6e3016633724cd8a1998eb2", "simhash": "1:c9498594f579c014", "word_count": 1488 }, "last_updated": "2023-07-14T19:39:57.297487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Henson v. Breeze." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). The only question necessary for us to determine is whether or not the court erred in holding that the effect of the deed was to convey only a life estate to the grantee, Eudora Fort, and that her children were the owners in fee.\nIn the case of Hardage v. Stroope, 58 Ark. 303, one J. L. Stroope and wife conveyed certain land to Tennessee M. Carroll, \u201cto have and to hold the said lands unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then, in that case, to be divided and distributed according to the laws for descent and distribution in this State.\u201d\nConstruing the above deed, the court, among other things, said: \u201cIt is obvious that the deed to Mrs. Carroll created in her no estate entail. Her grantor reserved no estate or interest, nor granted any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. \u2019 \u2019 And the court held that under the rule in Shelly\u2019s case the effect of the deed was to vest in Mrs. Carroll, the grantee, an estate of inheritance, and that she became seized of the land in fee simple.\nThe use of the word \u201cforever\u201d in the present deed has the same effect as did the words \u201cin fee simple\u201d in the deed of Stroope to Mrs. Carroll. The use of the words \u201crevert back and descend,\u201d etc., did not differentiate the deed under consideration in the present case from the deed construed in the case of Hardage v. Stroope. As we construe the deed, it does not convey a life estate to Eudora Fort (now Kiblinger), with the remainder to the heirs of her body. The language does not justify such a construction. But the effect of the deed was to convey to Eudora Fort the fee.\nThe bodily heirs of Eudora Fort Kiblinger contend that it was the intention of the grantor that in the event his daughter, Eudora Fort, died without children, that the lands would revert back to the grantor, under the clause, \u2018\u2018and if the grantee, Eudora Fort, shall die without children of her body living, or descendants of such children, then the said lands shall revert back and descend to such persons as the law casts the descent of property of persons dying without children or descendants of children. \u2019 \u2019 The effect of this clause is precisely the same as was the following language in the habendum clause in the case of Hardage v. Stroope, supra; \u201cand if at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws of descent and distribution in this State.\u201d As already observed, we construed this clause, under the rule in Shelly\u2019s case, as a limitation to the heirs generally.\nThe language of the deed, as we construe it, brings it within the doctrine of Hardage v. Stroope, rather than the doctrine of Horsley v. Hilburn, 44 Ark. 458, Wilmans v. Robinson, 67 Ark. 517, and other cases following those, which the trial court erroneously applied to the present case.\nIt follows that Mrs. Eudora Fort Kiblinger had the right to convey the fee in the land in trust to secure the payment of her debt to Swilling, and hence her children, the heirs of her body, had no cause of action against those holding under title derived from that source.\nThe decree is therefore reversed and the cause is remanded with directions to sustain the demurrer to the complaint, and to dismiss same because it does not state a cause of action.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "Jeptha H. Evans, Richard M. Mann, Sam T. Poe and Tom Poe, for appellants.", "Anthony Hall, for appellees." ], "corrections": "", "head_matter": "Henson v. Breeze.\nOpinion delivered May 14, 1917.\nDeeds \u2014 real property' \u2014 conveyance op pee \u2014 rule in shelly\u2019s case. \u2014 Lands were deeded to one E. \u201cand unto the heirs of her body,\u201d the deed also reciting, \u201cand if the grantee E. shall die without children of her body living, or decendants of such children, then the said lands shall revert back and descend to such persons as the law casts the descent of property of persons dying without children or decendants of children.\u201d Held, to convey to E. the fee in the lands deeded.\nAppeal from Logan Chancery Court, Northern District ; W. A. Falconer, Chancellor;\nreversed.\nJeptha H. Evans, Richard M. Mann, Sam T. Poe and Tom Poe, for appellants.\n1. The deed conveyed a life estate to Eudora Port and the remainder in fee to her children. The injunction against waste should be permanent. Kirby\u2019s Digest, \u00a7 735; 72 Ark. 366; 44 Id. 459; 67 Id. 517; 98 Id. 570; 49 Id. 125; 75 Id. 19; 117 Id. 370.\n2. A life tenant can not commit waste, or destroy the corpus of the estate by mining or removing minerals. 92 Ark. 260; 150 111. 560, 37 N. E. 999; 112 Iowa, 210, 83 N. W. 963; 240 111. 361, 88 N. E. 818; 30 A. & E. Enc. Law (2 ed.), 248; Comyn\u2019s Dig., D. 4; 5 Coke 12; 1 Taunt. 410; 2 Beav. 466; 3 How (U. S.) 120; 36 Mich. 105; 117 Mo. 414; 1 \"Washb. Real Prop., par. 280; 16 Cyc. 625.\n3. It was error to allow the operation of the coal mine to continue. 95 Ark. 23; 5 Pom. Eq. Jur., par. 491-2; 16 Cyc. 658. The tenant must account for the receipts from sale of the coal minus the reasonable expense of mining, and not merely the royalty. Thornton on Law of Oil & Gas, \u00a7 268; 43 W. Ya. 562; 27 S. E. 411, 38 L. R. A. 694; 3 P. Wins., 268; 1 Cox Oh. Cas. 72; 29 Eng. Rep. 1068; 118 Pa. St. 42, 12 Atl. 313.\n4. Appellants are entitled to the relief from waste. 31 Beav. 486; 3 Atk. 751; 3 Peere Wins., 266; 9 Jurist (N. S.) 1022.\nThe decree should be affirmed as to the estate granted and the injunction should be made perpetual.\nAnthony Hall, for appellees.\n1. The court properly construed the deed. No permanent injunction should be granted nor should treble damages be assessed. Kirby\u2019s Digest, \u00a7 7978; 58 Ark. 303; 5 Id. 21. The decree should be reversed and the cause dismissed.\nstatement by the court.\nThis suit was instituted by the bodily heirs of one Eudora Fort Kibling-er, as plaintiffs, against B. P. Henson and others, as defendants. The purpose of the suit was to obtain a permanent injunction to restrain the commission of waste on a certain tract of land in Logan County which the plaintiffs alleged they owned in fee under a deed which (omitting unnecessary portions) recited as follows:\n\u201cThat we, William H. Fort, of Logan County, State of Arkansas, and Nancy A. Fort, his wife, for and in consideration of the sum of two thousand and six hundred dollars, to us paid by Eudora Fort, of the said county and State, do hereby grant, bargain, sell and convey unto the said Eudora Fort, and unto the heirs of her body, the following lands (describing them).\n\u201cBut it is of the essence and validity of this conveyance that the said grantee herein, and the heirs of her body, shall hold title to said lands, and if the grantee, Eudora Fort, shall die without children of her body living, or descendants of such children, then the said lands shall revert back and descend to such persons as the law casts the descent of property of persons dying without children or descendants of children.\n\u2018 \u2018 To have and to hold the same unto the said Eudora Fort, and unto the heirs of her body forever, subject to the above limitations relative to defect of children or descendants of children, with all and singular the appurtenances thereunto belonging, and we hereby covenant to and with the said Eudora Fort and the heirs of her body, that we will forever warrant and defend the title to said lands against all lawful claims whatever.\u201d\nEudora Fort married N. B. Kiblinger, and she and her husband mortgaged the land above conveyed to Maud and James M. Swilling to secure a loan. Default was made in the payment, the mortgage was foreclosed, and the land sold to James M. Swilling, and, after various conveyances, passed to the appellants. Eudora Fort Kiblinger is still living.\nThe cause was heard on demurrer to tire complaint, and the trial court overruled the demurrer and held that plaintiffs, the bodily heirs of Eudora Fort Kiblinger, were the owners of the fee, and entered a decree accordingly, from which an appeal is prosecuted to this court." }, "file_name": "0155-01", "first_page_order": 179, "last_page_order": 183 }