Calhoun v. Stark, Guardian

FLY, Associate Justice. — Appellee, as guardian of the estate of I. Q. and J. A. L, Poindexter, minors, sued appellant for 102-J- acres of *61 land, together with rent thereon for two years at the rate of $280 per annum, and there was a prayer in the alternative for a partition of the land, setting up the interest of the parties. A writ of injunction was also obtained to prevent appellant from appropriating the crops of 1894, on the grounds of his insolvency. Special issues were submitted to the jury, and upon their answers the court rendered judgment and filed his conclusions of law. The answers of the jury show that the 102-¿- acres of land were bought by J. II. Poindexter for $1025, of which sum $425 belonged to Poindexter and his- wife, M. V. Poindexter, the balance being paid out of his separate estate. During 1880, Poindexter built a house on the land, and on December 5, 1880, married M. V. Murphy and moved into it. During their marriage, the two children above named were born to them, and were the only children of Poindexter. After the death of Poindexter, which occurred in 1882, Mrs. Poindexter remained on the land and used it as a home, and in 1887 married FT. B. Calhoun, the appellant. She died February 27, 1893, leaving no children except the two by Poindexter. Poindexter and wife put improvements on the land that enhanced its value in the sum of $820; Mrs. Poindexter made improvements that enhanced the value of the land in the sum of $717.50, and FT. B. and M. Y. Calhoun put up improvements with community money that enhanced the value of the land in the sum of $512.50. After the death of Mrs. Calhoun, appellant lived on the land during 1893 and 1894. The rental value was $4 per acre. Appellee was the legally appointed guardian of the estate of the minors. The debts of the estate were paid off by Calhoun with money belonging to the community estate. There was no administration. The jury found that the injunction was obtained without cause, and assessed appellant’s damages at $46. The first assignment of error, not being copied in the brief, will not be considered. The only error assigned is in regard to the amount of rents allowed by the court for 1893. The jury found that the land was bought during the marriage of Mrs. Calhoun with Poindexter who afterwards died. The land cost $1025, of which sum, $425 was paid out of the community funds of Poindexter and wife. The latter therefore acquired a community interest in 40T5g-acres of the land, or 20^ acres. The court decreed to appellant a homestead interest in 1 ()-]- acres, and a life interest in 3-J acres of the 10i- acres. There is no objection made to this part of the judgment by appellant. In addition to giving the homestead and life interest, the trial judge treated the improvements put on the land as personal property and gave appellant one-third of the value of one-half of the improvements made by Poindexter and wife, one-third of the value of the improvements put on the land by Mrs. Poindexter after her first husband’s death, and .one-half the value of the improvements put -on the land by appellant and Mrs. Poindexter after their marriage. The sums *62 allowed him as improvements amounted to $632.05, Which, together with the $46 damages allowed for suing out the injunction, amounted to $678.05, which deducted from the amount allowed for rent, $720, left due by appellant, $41.95. Appellee claimed in his petition that the total rental value of the land was $280 per annum, and should have recovered for his wards’ part of the rent $45.48, but appellant is in no attitude to complain of the amount allowed-for rent, for if he had been allowed only the amount in offset to which he was entitled, the judgment, on the basis of the amount of rent claimed in the petition, would have been much larger than it is. In other words, we are of the opinion that when appellant got his share of the land there went with it a pro rata of the enhanced value given to the land by the improvements, and he was not entitled to recover for the improvements as though they were personal property. It was not erroneous to charge appellant with rent for two years, and he did not occupy such a relation to the children of his wife as to be in a position, as a joint-tenant with them, to a demand for possession before he became liable for rent. The judgment will be affirmed. Affirmed.