Rhea v. Bagley

Battle, J. Moses B. Rhea purchased of Mrs. Mary A. Boas two lots, and paid for the same. She conveyed them, at the request of the purchaser, to his two minor sons, James M. and W. P. Rhea, by deed bearing date the first day of March, 1887, the father “remarking at the time that he gave the property to the boys.” The sons having no curator or guardian, the deed was delivered to thevffather, and he took “charge” of the lots, “and collected all the rents arising from the same up to the date of his death,” which occurred in March, 1893. After his death, James M. Rhea, and G. A. Henry, as guardian of W. P. Rhea, presented an account against his estate for the rents collected by him, amounting to $2,511, properly sworn to, which was disallowed by the probate court. On appeal to the circuit court, it was admitted by all parties as evidence that the amount of rents collected by the deceased in his lifetime was substantially the amount claimed in the account presented. The claim was disallowed by the circuit court, and the plaintiffs appealed. Effect of conveyance to child. Acceptance of deed by father. Liability of father for rents. The conveyance of the lots to the two minor sons, at the request of the father, was an advancement. The title vested in them, and they became entitled to the possession of the lots from the time of the delivery of the deed to their father. Robinson v. Robinson, 45 Ark. 481; Bogy v. Roberts, 48 Ark. 17; Eastham v. Powell, 51 Ark. 530; Kemp v. Cossart, 47 Ark. 62; White v. White, 52 Ark. 188. The acceptance of the deed by the father for the sons, they being- minors, was a sufficient delivery, the conveyance being- beneficial to them. Eastham v. Powell, 51 Ark. 530; Tiedemau, Real Property, sec. 814; Thornton, Gifts and Advancements, secs. 174 and 175; 2 Jones, Real Property, sec. '1276. But it is said by the appellee that “Moses B. Rhea purchased the property, and paid for it, and took the deed in the names of his two minor sons, intending- for it to take effect as an advancement at the time of his death, and that he never intended for them to enjoy the rents of the property during- his life time; and his intentions were manifested by his actions.” There is no evidence of any interest in the lots being- conveyed to or retained by the father. But it is said that he remained in possession of the lots until his death, and erected a brick house on them. If this be true, it does not show an intention that any part of the estate or interest conveyed to the sons should not be an advancement. At one time it was held that the father’s remaining in possession, making improvements, and enjoying the rents after his purchase, were sufficient to sh'ow that no advancement was intended. That doctrine is now exploded. Bogy v. Roberts, 48 Ark. 17. In Kemp v. Cossart, 47 Ark. 62, a father, as the agent of his son, purchased land, and caused it to be conveyed to the son, and paid a part of the purchase money, the son paying the remainder. The father took possession, and made improvements on it, at the same time representing that the land was his son’s. The court said: “The natural and legal presumption is, the improvements were made by him as an advancement to his son.” But it is said that Moses B. Rhea was the natural guardian of the two sons during their minority, and as such was not accountable for the rents of the property conveyed to them. So far from this being true at common law, he had no right to intermeddle with the ward’s property. Schouler’s Domestic Relations (3d EJd.), sec. 285; 2 Kent’s Com., marg. p. 220. It necessarily follows that he was not entitled to the rents and profits which accrued from the same. The statute upon this subject provides: “In all cases not otherwise provided for by law, the father while living, and, after his death, or when there shall be no lawful father, then the mother, if living, shall be the natural guardian of their children, and have the custody and care of their persons, education and estates; and, when such estate is not derived from the persons acting as guardian, such parent shall give security and account as other guardians.” But it does not repeal so much of the common law as gave the minor child the right to the rents and profits arising from property given him by his parents. As to such property, the father is only entitled to the care, and is relieved from the necessity of giving security and accounting to the probate court. The reason for this exemption is that, haying given the property to the child, the presumption is, he will have regard and consideration enough for the interest of the child to take care of the property and its rents and profits, and honestly account for the same. If appellants had been of age at the time Mrs. Boas executed the deed to them, they would certainly have been entitled to the possession of the lots and the rents and profits of the same, and could have held their father and his estate liable for the rents collected and converted by him. Persoll v. Scott, 64 Ga. 767. Did their minority withhold from them any of these rights? We think not. We have disposed of the reasons given or shown why the claim of appellants should not be allowed, and find that the circuit court erred in disallowing it. The judgment is therefore reversed, and the cause remanded for a new trial.