Oliver v. Howie

Hart, J., (after stating the facts). The record shows that during the pendency of the suit the plaintiff, Ben Hemit, died, and that the suit was revived in the name of a special administrator of his estate, and also in the name of his attorney, J. R. Wilson. It is first sought to sustain the revivor on the ground that Wilson, as attorney for the plaintiff, had a lien on the fruits of the litigation, and was entitled to protect and enforce his lien. At the outset it may be stated that, independently of statute, an attorney at law, who has performed services and expended moneys in prosecuting or defending a suit involving the title to or possession of real estate, can not sustain a claim to obtain compensation and reimbursement out of the. specific property. Hershey v. DuVal & Cravens, 47 Ark. 86. But it is insisted that Wilson had a lien under § 628 of Crawford & Moses ’ Digest. This statute does not give the attorney any interest in or control over the cause of action. He has a lien only, which attaches to a verdict, decision, or final order in his client’s favor. St. L. I. M. & S. R. Co. v. Blaylock, 117 Ark. 504. In the present case there was no compromise, verdict, or final order in the case. Hence Wilson was not entitled to a lien on the land involved in the suit. This brings ns to a consideration, however, of a different question, and that is whether or not, by the terms of his contract with Ben Hemit, Wilson did not have an" interest in the land. Before the suit was commenced Wilson made an executory contract with Ben Hemit whereby the latter agreed to give him one-half of the 62 acres of'land deeded to him by John Oliver in consideration that Wilson should recover the land for him. In the same instrument, Hemit agreed to purchase back the one-half interest in the land acquired by Wilson. 'The instrument in question is copied in our statement of facts, and need not be repeated here. Reference to it will show that Hemit expressly agreed to give Wilson one:half of the 62 acres of land deeded to him by John Oliver. The record contains the deed from John Oliver to Ben Hemit, and the 62 acres of land involved in this suit is described by proper governmental subdivisions. It was the purpose of Ben Hemit to convey to J. R. Wilson an interest in the place he had purchased from John Oliver, and the deed from Oliver to Hemit correctly described the land. The description falls squarely within the rule announced in Martin v. Urquhart, 72 Ark. 496. To the same effect see Carson v. Ray, 52 N. C. 609, 78 Am. Dec. 267; Choteau v. Jones, 11 Ill. 309, 50 Am. Dec. 460, and 18 C. J., pp. 284 and 285. J R. Wilson, having acquired an interest in the land itself, would have been a proper party when the -suit was originally brought, and his substitution as plaintiff after the death of Ben Hemit at least had the effect of beginning a new action by him for his interest in the land. The defendant acquiesced in this proceeding, and then took depositions in the case in her own interest. This amounted to an appearance to the suit by her. Of course; the suit as to Ben Hemit abated at his death; for his interest in the land descended to his two sons, and the defendant had acquired their interest in the land''by deed. The revivor in the name of the special ¡administrator of Ben Hemit’s estate was therefore improper, but it could result in”ho prejudice to the defendant. As we have already seen, Wilson had a right to bring suit to recover his own interest in the land, and the so-called revivor had the effect to make him a party to. the suit. It is next insisted that Wilson’s right to recover is barred by the statute of limitations. We can not agree with counsel in this contention. The defendant secured a divorce from Ben Hemit in 1897, and in the decree one-third of the land in question was allotted to her, pursuant to the terms of § 3511 of Crawford & Moses’ Digest. Commissioners were appointed by the court to set aside one-third of the land in question to the plaintiff, but no action was taken by them in the premises. The defendant continued to reside on the land, and to control the whole tract. It is true that she had a homestead in the land, but her action in securing the allotment under the statute in the divorce case operated as an abandonment of her homestead rights. See Taylor v. Taylor, 153 Ark. 206, and Crosser v. Crosser, 121 Ark. 64. By the terms of the decree, which she prosecuted herself, she became tenant in common with, her former husband, Ben Hemit. There is nothing in the record to show that she ever notified Ben Hemit that she was going to claim the whole 62 acres adversely to him, nor is there any fact in the record which would lead to such notice on his part. Therefore there is no bar of the statute of limitations, as insisted on by counsel for the defendant. The reason that the possession of the one tenant in common is prima facie the possession of all, and that the sole enjoyment of-the rents and profits by him does not necessarily amount to a disseizin, is because his acts are susceptible of explanation consistent with the true title. In order therefore for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed. Singer v. Maron, 99 Ark. 446. It is next insisted that Wilson is barred under the doctrine of laches as applied in Wilson v. Pannell, 149 Ark. 81. We can not agree with counsel in that contention. The facts are materially different. In that case the husband left, owing about $1,000, which the wife was compelled to pay in order to prevent the sale of the property, which was a blacksmith’s shop and therefore subject to his debts. 'There the wife never obtained any divorce, and never recognized that her husband had any interest in the property. The sum advanced by her for the payment of his debts amounted to about one-half of the value of the property. She might have had the debts transferred to her and caused the property to be sold for their satisfaction. In the casé at bar, the defendant procured a divorce from her husband, and in that decree obtained a statutory allowance of one-third of his property. She thus recognized'her husband’s right to an interest in the property. In 1917, she secured a deed from her two sons to the property, and they are described in the deed as the sole heirs at law of Ben Hemit. Here again she recognized her husband’s interest in the property. There is nothing in the record which occurred after this time upon which to base a claim that the plaintiff is barred of recovery by laches. The defendant had recognized her former husband’s interest in the property as a tenant in common with her at least from the date of her divorce decree until she secured a deed from her two sons in February, 1917. The suit was'commenced on February 5, 1921, and, as we have just said, there is nothing in the record between the last two mentioned dates which would entitle the defendant to invoke the doctrine of laches as a bar to this suit. Counsel for the plaintiff insists that he is entitled to rents; but this contention we cannot sustain. The plaintiff filed a reply to the answer and cross-complaint of the defendant. He denied that the court had any jurisdiction to grant the decree of the divorce, and further set up that, if the defendant was entitled to any interest in the land by virtue of that decree, it would only be for one-third of the land during her lifetime. The decree in the divorce case is regular on its face. No appeal was taken from it. It gave to Bama Hemit, the plaintiff in that action, one-third of the land in controversy absolutely. It was the duty of Ben Hemit to have set aside her allotment to her, and that duty was a continuing one. He not only made no offer to make the allotment in the present suit to the defendant, but denied her right to recover at all under that decree. Hnder these circumstances- the plaintiff would not be entitled to rents at all. The result of our views is that the decree must be reversed, and the cause will be remanded with directions to enter a decree in favor of J. ft. Wilson for one-half of the land in controversy and for partition of said land. It is so ordered.