Dismukes v. Halpern

Cockrill, C. J..- .The appellants are the -heirs at law of Charles W. Daniels.' The latter, in his lifetime, joined with the other heirs of W. H. Daniels in a petition to the probate court of Monroe county to partition lands which they had inherited from W. H. Daniels. -An order for partition was ’ made in the probate . court in 1871, in pursuance of the petition, and commissioners were appo'intéd to set off shares to the several heirs and to allot dower to the widow of W. H. Daniels. .The commissioners reported to the court, designating by metes and boundsThe lands to be allotted to each heir, and to the widow. The widow’s' dower interest was so laid off hs to cover the shares allotted to two of the ■ heir's, and in brder to equalize the burden and compensate them, it was recommended by the commissioners and .ordered by the court, that the other .heirs should pay to'the two whose shares’ were embraced in the lands assigned to the widow us dower, the fair rental value of their shares in annual- .payments during the widow’s life. A special commissioner was appointed by the court to execute deeds to the heirs in accordance with the report of the commissioners. He executed among others, a deed to Charles W-. Daniels, .the appellant’s ancestor, in. 1872, conveying his allotted share of the lands to him free from the claims of-the other heirs, except the claim for his proportion of the payments to be made to the two heirs who were, by the allotment, deprived of the enjoyment of their shares during the life- of the' widow, and these payments the deed specified should be made to. them by C. W. Daniels annually. The partition was acquiesced in by all the parties; the deed was accepted by Charles W. Daniels, and he or his heirs have ever since.enjoyed the exclusive possession of-the lands set apart to him under it. W. W. Daniels’ widow died in 1883, and none of the payments provided for in the deed having been made, the appellee, who is the owner of the land covered by her dower interest, and the assignee of the annual installments, filed his complaint in equity to subject the lands allotted to Charles W. Daniels to the payment of the proportion of the charge assessed against them by the commissioners. L estoppel: deed The appellants answered, denying that the lands were subject to the charge, and pleaded the statute- of limitations in bar of the recovery. The decree of the court was that the lands be subjected to the payment of the installments accruing within seven years oí the filing of the bill, with interest, and the owners of the land appealed. They argue that the probate court was without jurisdiction to create a lien upon the land, orto render a money judgment against one heir in favor of another, and that the judgment is therefore without force. To concede the correctness of the legal proposition does not aid the appellants’ case. Their ancestor’s exclusive right to the land is based upon the commissioner’s deed, and they themselves in their pleadings assert title under the same deed. The terms of the conveyance were that Charles W. Daniels should pay to the appellee’s assignors the annual sums specified in the deed, and in effect that these sums should be a charge upon the land. In accepting the deed he acceded to these terms,, and he cannot now hold to the beneficial part of the conveyance and rid himself of the burden which accompanied it. A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset, to repudiate it in toto or take it cum ojiere, and when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others. Millington v. Hill, Fontaine & Co., ante, p. 301, and cases cited; Herman Estop., sec. 1057. 2. statute of impned°ncon- 3. probate dietionPant tion. The court was right in holding the land for the payment of the debt, but the seven years statute which bars the recovery of possession of real estate has no application to a recovery upon an equitable lien. Millington v. Hill, Fontaine & Co., supra. Charles W*. Daniels’ liability to pay the debt, as well as the charge upon the land, arises by implication alone. The judgment of the probate court is without force in that respect, bécause the court was without jurisdiction to declare a lien upon land, or to render a personal judgment for the recovery of money against Daniels in a suit for partition. Myrick v. Jacks, 33 Ark., 425. The terms of the contract are found in the com-miss'ioner’s deed, but the only obligation upon Daniels to comply with those terms is implied from his acceptance of the deed. It was not the deed that created the charge upon the land, because the probate court could not invest the commissioners with that authority. The assent of Daniels is what gives validity to the charge, and as this assent creates an implied liability only, the three years statute governs. Manfield’s Digest, sec. 4478. It follows that no recovery could be had of any annual installment except such as matured within three years of the ■filing of the appellee’s bill. The decree must be reversed with instructions to modify it in accordance with this opinion.