Kemp v. Cossart

Battle, J. On the 2d day of December, 1867, A. B. 'Caruthers, representing himself as the agent of his son, F. M. Caruthers, purchased of ^Charles Cargile, for and in the name -of his son, the land in controversy. Cargile conveyed the land to F. M. Caruthers, and he, F. M. Caruthers, gave his notes for the purchase money payable in the. future, and executed a mortgage on the land to 'Cargile to secure the payment thereof. A. B. Caruthers thereupon took possession of the land, and cleared and fenced ten acres of it and cultivated ■and controlled it for many years and until his death. As the agent of his son he paid the most of the purchase money, his .son paying the residue. While he used the land he paid no -rent, and for the rents he collected he never accounted to any •one. He also paid taxes on the land. The value of the improvements he made is one hundred and twenty dollars. While in the possession of the land he represented it as the land of his son, and it was generally -so regarded. On the 7th -day of April, 1872, he, A. B. Caruthers, in consideration of ■one thousand dollars, pretended to convey this land, together with other lands, to Joseph Cossart, but, notwithstanding this •conveyance, he still remained in possession of the land in controversy and controlled and cultivated it as before. Nancy J. Cossart, the , plaintiff, purchased it of Joseph Cossart, and, thereafter claiming it as her own property, caused it to be •assessed for taxation in her own name, and paid taxes thereon amounting in the aggregate to the surh of nine dollars and •forty-four c.ents. Meredith Kemp, one of the defendants, being informed and 'believing that the land was the property of F. M. Caruthers, ¡purchased it d'f him, and on the 8th day of April, 1876, F. M. ■Caruthers conveyed it to him. In the fall of 1878 Kemp took possession of the land, and at all times since has held it. The court below found that the land in controversy was the property of Kemp, but that Nancy J. Cossart, the plaintiff, ■and her grantors, had paid forty-seven dollars and thirty-six cents taxes thereon, and that A. B. Caruthers had made improvements thereon of the value of one hundred and twenty dollars; and rendered a decree in favor of Kemp, forever quieting his title to the land in controversy as against all parties to the action, except as to a lien declared by the court, and rendered a judgment in personam in favor of plaintiff against Kemp for one hundred and sixty-seven dollars and thirty-six cents, the amount of taxes paid and value of improvements, and all the costs of the action, and declared that this amount was a lien and charge on the land. Both parties have appealed. 1. betteements: Taxes and improve- If it be true that this land was purchased and paid for by a A. B. Caruthers, and that the same was conveyed, at his request, to F.- M. Caruthers, his son, the presumption, in the absence of other evidence, is that the conveyance was intended ■as an advancement. If such be the fact, there was no evidence introduced in the hearing of this action sufficient to overcome this presumption. Robinson v. Robinson, 45 Ark., 481. According to any view which can be properly taken of the evidence in this case, Kemp is entitled to the land in controversy. A. B. Caruthers, or those holding under him, are not entitled ■to any compensation for improvements made by him. He was not in possession under color of title. During the time he was making these improvements he represented that the land was his son’s. The natural and legal presumption is, the improvements were made by him as an advancement to his son. While he made the improvements and remained in possession he used the land, or enjoyed the rents and profits arising therefrom, free of charge. Plaintiff, Nancy J. Cossart, claiming the land as her own,, paid nine dollars and forty-four cents taxes thereon. These taxes were a paramount lien on the land. Their legality is not disputed. It was the duty of the owner to pay them. This was necessary to protect his interest. She did not act officiously in paying them, but presumably in good faith, and for the purpose of protecting and saving property she claimed. Kemp received the benefit of the payments made without any return thereof. She is entitled by subrogation to reimbursement out of the land -to the extent of nine dollars and forty-four cents. The court erred in rendering judgment against Kemp for one hundred and sixty-seven dollars and thirty-six cents, and declaring the same a lien on the land. Plaintiff was only entitled to a lien for the nine dollars and forty-four cents for taxes paid. The decree of the court below is, therefore, reversed in SO' far as it is inconsistent with this opinion, and in other respects, is affirmed, and this cause is remanded with directions to that court to enter a decree herein in accordance with this opinion..