Bogy v. Roberts

Oockrill C. J. A father who was tenant by curtesy sold his life interest in his deceased wife’s lands, and at the same time, having obtained an order of the probate court for that purpose as guardian of his minor children, sold their estate in the lauds and invested the entire proceeds in the purchase of other real estate, taking the title to himself as guardian of the children. This was in 1873. 1 VanoeI púr0hase nyamhero^ Curtesy.6"’ He entered into possession after the purchase, put improvements on the land, enjoyed the rents and profits, and maintained his children. One of the daughters who is now married brings this action of ejectment against him for the possession of her undivided interest in the lands. The father set up the facts above stated in his answer and prayed that he be allowed “to hold and enjoy said lands to his own use during his natural life, as by curtesy in lieu of his estate in the lands sold.” The court held upon demurrer that the answer presented no defense. The defendant submitted to judgment for the possession of an undivided interest in the lands and appealed. No objection has been made to the plaintiff’s right to maintain an action at law for possession upon the deed to her father or guardian. The only question pressed here or below is the appellant’s claim to a life interest in the land. First — The appellant had no estate as tenant by curtesy in the lands in suit, because his wife was never seized of them. 2. Same: Evidence. Second — The purchase of land by the father in the name of his children is presumed to be an advancement to them by him, and the equitable as well as the legal estate vests in them. Kemp v. Cossart, ante; Robinson v. Robinson, 45 Ark., 481; Milner v. Freeman, 40 Ark., 62. Where the proof does not make it clear and manifest that a trust only was intended by the purchase, equity follows the law and leaves the estate with the child. The father’s possession, making improvements and enjoying the rents after his purchase, were at one time held to evince the intention that an advancement was not intended. The doctrine, however, never had a firm foothold in authority, and is now exploded. Perry on Trusts, secs. 145-6. Lord Eldon said, in Finch v. Finch, 15 Vesey, 50, the principle that the purchase is presumed prima facie to be an advancement is not to be frittered away by refinements. Judge Story, in his work on Equity Jurisprudence, adds: “ It is perhaps rather to be lamented that it has ever been suffered to be broken in upon by any sort of evidence of a merely circumstantial nature.” 2 Story’s Eq., sec. 1203; Grey v. Grey, 2 Swans, 299; See Kemp v. Cossart, and Robinson v. Robinson, sup. It may be an unfilial act, or as Lord Nottingham expressed it in Grey v. Grey, sup., “ not in good manners,” for the daughter to contradict the right of the father to the rents during his life, but his answer does not present the facts upon which the courts can interfere to prevent it. Affirm.