{ "id": 8718179, "name": "Sidney LUSTER et al v. Ida L. ARNOLD et al", "name_abbreviation": "Luster v. Arnold", "decision_date": "1970-10-12", "docket_number": "5-5316", "first_page": "152", "last_page": "159", "citations": [ { "type": "official", "cite": "249 Ark. 152" }, { "type": "parallel", "cite": "458 S.W.2d 414" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "27 S. W. 2d 523", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "181 Ark. 736", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724924 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ark/181/0736-01" ] }, { "cite": "217 Ark. 402", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720661 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0402-01" ] }, { "cite": "194 S. W. 19", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1917, "opinion_index": 0 }, { "cite": "128 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581914 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/ark/128/0342-01" ] }, { "cite": "132 S. W. 1002", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1910, "opinion_index": 0 }, { "cite": "97 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318853 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/ark/97/0033-01" ] }, { "cite": "28 S. W. 796", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1894, "opinion_index": 0 }, { "cite": "60 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903691 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ark/60/0070-01" ] }, { "cite": "35 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873807 ], "year": 1879, "opinion_index": 0, "case_paths": [ "/ark/35/0084-01" ] }, { "cite": "206 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485063 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/206/0344-01" ] }, { "cite": "136 S. W. 975", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1911, "opinion_index": 0 }, { "cite": "98 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316087 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/ark/98/0570-01" ] }, { "cite": "219 Ark. 623", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609227 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/ark/219/0623-01" ] } ], "analysis": { "cardinality": 606, "char_count": 11787, "ocr_confidence": 0.848, "pagerank": { "raw": 1.2998968466794314e-07, "percentile": 0.621932591436798 }, "sha256": "c8e8e3bdcc119661b48cb772ff77d1a1d0fb0ceef639bac6aabea1fe96ffcd29", "simhash": "1:1364048330a3540c", "word_count": 1991 }, "last_updated": "2023-07-14T17:50:24.525274+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sidney LUSTER et al v. Ida L. ARNOLD et al" ], "opinions": [ { "text": "Lyle Brown, Justice.\nThe parties to this litigation are all the heirs of James A. Luster, deceased. Suit was instituted by appellees here, Ida Luster Arnold (daughter) and the tseven surviving children of Champ Luster (son). They named as defendants (appellants) the other living children of James A. Luster, who are in possession of the lands in which Ida, along with Champ\u2019s children, claim an interest. From the decision of the chancellor there is an appeal and cross-appeal and the numerous points will later be recited.\nJames A. Luster owned roughly 1000 acres of land in Independence County and some town property in Bates-ville, the county seat. In 1922 he conveyed a substantial portion of the property, naming three of his sons and the heirs of their bodies as grantees. The granting clause read:\n[U]nto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster and unto the heirs of their bodies (that is to say, unto each of said grantees, and the heirs of his body, an undivided one-third). . .\nThe habendum provided:\nTo have and to hold the same unto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster, and to the heirs of their bodies in the interests or shares above mentioned...\nThe grantor died intestate in 1924, followed by the death of his widow in 1953.\nShortly after the conveyance Sidney, Robert, and Harry Luster went into possession. The lands forfeited for taxes for 1929 and Sidney and Harry each redeemed an. undivided one-third interest. Sidney allegedly became the record owner (through tax title): of Robert\u2019s one-third interest, save and except a tract known as The Island, to which a sister, Winnie Luster Atchison obtained a state deed. Summarizing the title at the time this suit was filed against appellants, Sidney and Harry claimed under the deed from their father; additionally Sidney claimed to have acquired Robert\u2019s one-third except The Island; and Winnie claimed The Island. The parties named have been in possession for about forty years.\nThe event that precipitated this suit was the death of Robert in 1967, intestate and without widow or children. Ida Luster Arnold and the heirs of Champ,Luster took the position that the death of Robert worked an investiture of his interest into the estate of James A. Luster, - the father, in fee simple, which meant that, the title to that interest descended by heirship as follows: Ida Arnold, one-fifth of the one-third interest; th\u00e9 seven children of Champ Luster, deceased, each a one thirty-fifth interest in the one-third; and in Harry, Sidney, and Winnie, each a one-fifth interest in the one-third. Ida, along with Champ\u2019s children, as plaintiffs (appel-lees) claimed there was no way to equitably divide the respective interests in the lands and asked that a sale be decreed. Additionally they prayed for an accounting of the. rents and profits from Robert\u2019s interest since his death in 1967. The issues of survivorship, sale, and accounting were all disputed and the court found:\nThat the effect of the father\u2019s deed was to create a \u201cdivestible reversion\u201d to the lands in the father; that upon the father\u2019s death intestate the divesdble reversion descended to his children as tenants in common; that upon the death of Robert intestate and without bodily heirs or widow, his interest in the divestible reversion descended to his brothers, sisters, and the children of Champ Luster, the deceased brother, in fee simple; that the tax forfeitures relied on by Sidney and Winnie, and purportedly covering Robert\u2019s interest, were void for jurisdictional defects and therefore conveyed no title; that Winnie\u2019s claim to a part of Robert\u2019s interest (The Island) by adverse possession could not prevail because the statute of limitations could not begin to run until Robert\u2019s death in 1967; that plaintiffs-appellees could not recover rents for failure of proof; and finally, that the lands could not be partitioned or sold until the death of both Sidney and Harry Luster.\nSidney, Harry, and Winnie appeal with respect to all findings as regard the title. Appellees challenge the court\u2019s refusal to order a sale and the court\u2019s denial of accounting. The points of the parties will be set out as they appear in the briefs.\nAppellants\u2019 Point I. The James A. Luster deed created a life estate in each of the grantees and a contingent remainder in the whole to the bodily heirs of any of the grantees. We do not agree. The terms of the grants are without ambiguity and in that situation the law favors a determination of the grantor\u2019s intent from the wording of the conveyance. Our law is well settled that a reversionary interest to the lands remained in James A. Luster. When Robert died without issue that one-third interest reverted to James A. Luster or his estate. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739 (1951); Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975 (1911).\nAppellants\u2019 Point II. Sidney Luster acquired the fee simple title to the one-third interest granted to Robert Luster, except that interest acquired by Winnie Luster Atchison, a sister. The lands were listed on the assessment records as \"Luster, Sid, Bob, and Harry.\u201d They were likewise listed on the tax books, made from the assessment records. The record book for delinquent lands shows that the ownership was there treated as a unit (advertised and sold as a unit) rather than fractional separate assessments. It is apparent that Sidney thereafter persuaded the custodian of the assessment records to change the original assessment by striking his name from the list of brothers and entering a separate assessment for Sidney\u2019s undivided one-third. We mention the status of the records because we cannot agree with appellants that the lands \u201cwere assessed to each of the three Luster brothers separately.\u201d\nA stranger to the title, R. E. Brock, obtained a deed to a one-third interest (allegedly Robert\u2019s equity) from the State in 1932. In 1940 Brock deeded part of his interest so obtained to Sidney Luster. The remainder of Brock\u2019s interest forfeited some years later for taxes and Sidney purchased those lands from the State. The transactions we have recited covered all of Robert\u2019s interest except a tract known as The Island, which will be discussed in the next point for reversal.\nSidney acquired no title by virtue of the tax sales, assuming that all the taxing and sales proceedings were valid. That is because Sidney and Robert were tenants in common. In Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579 (1943), we said:\nIt is well settled that a tenant in common cannot add to or strengthen his title by purchasing title to the entire property at a tax sale, nor by purchasing it from a stranger who has purchased at such sale; that such purchase amounts to no more than a redemption, which inures to the benefit of the other tenants as well as himself, and confers no right upon such tenant so purchasing except to demand contribution from his co-tenants.\nSidney also relies on Ark. Stat. Ann. \u00a7 84-925 (Repl. 1960). He contends that statute extinguishes Robert\u2019s interest. The cited statute provides that when a life tenant fails to redeem from a tax forfeiture, the person next entitled to the lands in remainder or reversion may redeem and extinguish the life tenant\u2019s title. The statute is not applicable because Sidney and Robert were tenants in common.\nFinally with respect to Point II, the validity of the tax forfeitures was before the chancellor and they were found to have been invalid. There was an abundance of evidence to support that conclusion. Several of the defects were jurisdictional. There was evidence of an excessive extension of taxes, both for county and school purposes, and several tracts forfeited under \u201cpart\u201d descriptions.\nAppellants\u2019 Point III. Winnie Luster Atchison acquired the fee simple title to the one-third interest in The Island granted to Robert Luster for life. In the 1929 tax forfeiture of Robert\u2019s interest was a tract of land known as The Island. Winnie obtained a deed from the State in 1935. She also claims to have since been in continuous possession of one-third of The Island, collected the rents therefrom, and \u201cfarmed the one-third that had been set aside for Robert.\u201d The chancellor found the tax deed to be void and also held against Winnie on her assertion of title by adverse possession. With the chancellor\u2019s findings we agree.\nAs noted in considering Point II, there was adequate evidence to support the chancellor\u2019s finding that the tax deed was void. Winnie, therefore, took no interest through the void deed.\nNeither may Winnie recover by adverse possession. The rule is that the cause of action to recover possession of property accrues to reversioners and remaindermen upon the death of the life tenant. Banks v. Green, 35 Ark. 84 (1879); Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796 (1894); Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002 (1910). The reason for the rule was announced in Hayden v. Hill, 128 Ark. 342, 194 S. W. 19 (1917):\n[T]he remainderman or reversioner has a right to attribute the holding to some character of contract with the life tenant. Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee. . .\nApplying the rule in Hayden, any adverse possession by Winnie did not run against the reversioners until Robert\u2019s death since they had a right to treat her as a licensee occupying the land through the permission of Robert. Seven years have not passed since Robert\u2019s death in 1967, therefore Winnie may not recover by adverse possession.\nAppellees\u2019 Point I on Cross-Appeal. Upon the death of Robert, the interest of appellees in the property subject to Robert\u2019s life estate vested, thereby giving ap-pellees a present undivided fee simple interest in the lands. Partition being impractical a sale should have been ordered. What we have said under appellants\u2019 Point I answers the first part of the contention in the affirmative. Then we reach the question of whether the owners of the undivided interests in fee are entitled to partition as against the owners of undivided interests for life which are followed by contingent remainder interests. We agree that they are entitled to partition or sale. McGee v. Hatcher, 217 Ark. 402, 230 S. W. 2d 41 (1950). There we faced a somewhat similar problem and we approved, as an entitlement, partition in kind which bound the holders of the fee, the life estate and the future interests. In the case at bar. it is readily apparent that partition in kind would be prejudicial to some of the owners and that fact necessitates a sale. Since appel-lees and cross-appellants are entitled to partition which cannot be carried out equitably they have a right to have the lands sold. Ward v. Pipkin, 181 Ark. 736, 27 S. W. 2d 523 (1930).\nAppellees\u2019 Point II on Cross-appeal. Sufficient proof was presented for determination of appellees\u2019 aliquot share of rents and the chancellor erred in refusing judgment therefor. The undisputed proof showed that after Robert\u2019s death in 1967 and until the time of trial in 1969, Sidney received a minimum of $2046 in rentals; Winnie received $1,101.29; and Harry collected a minimum of $500. Those were all the rents that were definitely established as having been received by the named parties. Appellees are entitled to an accounting for the enumerated rents and to receive their proportionate shares.\nAffirmed on appeal; reversed and remanded on cross-appeal.", "type": "majority", "author": "Lyle Brown, Justice." } ], "attorneys": [ "David Solomon, for appellants.", "Murphy, Arnold \u00e91 Blair and Highsmith, Harky ir Walmsley, for appellees." ], "corrections": "", "head_matter": "Sidney LUSTER et al v. Ida L. ARNOLD et al\n5-5316\n458 S. W. 2d 414\nOpinion delivered October 12, 1970\nDavid Solomon, for appellants.\nMurphy, Arnold \u00e91 Blair and Highsmith, Harky ir Walmsley, for appellees." }, "file_name": "0152-01", "first_page_order": 174, "last_page_order": 181 }