LeSieur v. Spikes

Kirby, J., (after stating the facts). The agreed statement of facts ¡shows that Sarah C. Fisher was the common source of title, that she conveyed the lands on March 11, 1879, to Dixie LeSieur, “and the legal heirs of her body;” that ¡she later on February 8, 1882, conveyed the lands by warranty deed to Jabez C. Smythe, defendant’s grantor and that plaintiffs mother, Dixie LeSieur on the same date, before they were born also made him a quitclaim deed to the lands. Their mother died in 1900, leaving them surviving two of the three legal heirs of her body, they being of the ¡ages of nineteen ¡and twenty-one years at the beginning of the suit. The defendant, was and had been in possession of the land, the rental value of which was shown ¡since the death of their mother, Dixie LeSieur. (1) The conveyance from ¡Sarah Fisher to Dixie LeSieur, the mother of appellants, “and the legal heirs of her body” created an estate-tail under the common law, which by our statute and decisions is changed to an estate for life in the .grantee, with remainder in fee to the heirs of her body living at the time ¡of her death. Section 735, Kirby’s Digest; Horsley v. Hilburn, 44 Ark. 458; Wilmans v. Robinson, 67 Ark. 517; Watson v. Wolff-Goldman Realty Co., 95 Ark. 23; Dempsey v. Davis, 98 Ark. 570; Black v. Webb. 72 Ark. 336. (2-3) According to these ¡authorities the lands grantedto appellants’ mother passedto them in remainder in fee simple upon her death and if she had died without issue living, would have under the course of the common law as well as the terms of the deed, reverted to her grantor. The entire estate except the possibility of reverter, not a disposable interest, passed from Sarah C. Fisher by the conveyance to Dixie LeSieur, the mother of appellants, and said grantor could not thereafter by conveyance defeat the rights of the remaindermen in the lands and this without regard to whether the fee be considered in abeyance, during the estate of the life tenant or still held by the original grantor for the purpose only of passing to the remaindermen upon the termination of the life estate. (á) The life tenant could not by her conveyance before the birth of her children, appellants, to the second grantee of Sarah O. Fisher, convey more than her interest in the lands which was but an estate for life and terminated upon her death, the remainder in fee immediately vesting in her children surviving at that time and their issue. (5) The plea of the statute of limitations and adverse possession can not avail against the right of action of appellants, which was not complete and did not accrue until the death of the life tenant. Moore v. Childress, 58 Ark. 510; Ogden v. Ogden, 60 Ark. 70; Morrow v. James, 69 Ark. 539; Watson v. Hardin, 97 Ark. 33. At the time of the death of the life tenant the appellants were infants under the age of twenty-one years, and were ¡by the statute allowed three years after coming of full age, in which to begin suit for the recovery of the possession of the lands iand this action was begun within said statutory period. Kirby’s Digest, § 5056. It f ollows that the court erred in its judgment, which should have been for appellants for possession of two-thirds interest in the lands, and damages for three years rental value thereof, less the amount of the taxes paid for that time. The judgment is therefore reversed 'and the cause remanded with directions to enter judgment in accordance with this opinion.