Burton v. Gorman

•Kirby, J. (after stating the facts.) Appellant contends that the iands were assets in the hands of the administrator of the estate of J. E. Stone, deceased, and necessary to be used in the payment of the debts thereof and that the court erred in not permitting the introduction of the testimony showing these facts and the payment of rent by appellant to the administrator during the months for which appellee claimed he had unlawfully detained the premises and failed to pay the rent therefor. (1) It is unquestionably true that lands of a decedent are assets in the hands of the executor or administrator and deemed in their possession and subject to their control for the payment of debts of the testator or intestate. Sections 79-186 Kirby’s Digest; Stewart v. Smiley, 46 Ark. 373. It is also true that the administrator can maintain ejectment to recover- possession of lands when necessary for the payment of the debts of the estate, without joining the heirs in the suit, but the administrator is not suing for possession. Cook v. Franklin, 73 Ark. 23. (2) The action of unlawful detainer however, is given only to test the right to the immediate possession of lands and tenements and not to determine the right or title of the parties to or in them. (3) It is likewise true that a tenant cannot dispute the title of his landlord while he remains in possession under him nor acquire possession from the landlord by á lease and then dispute his title without surrendering possession. Dunlap v. Moose, 98 Ark. 235; Bryan v. Winburn, 43 Ark. 32. The undisputed testimony shows that Mrs. Evans and her daughters, the devisees, under the will, took possession of the property after the death of the testator and paid off certain debts against the estate and later conveyed the property to W. P. Gorman and delivered the possession thereof to him, said Gorman agreeing to pay as part of the consideration therefor, the debts thereafter probated against the estate. It is likewise undisputed that appellee rented the premises' from said Gorman, agreeing to pay $25 per month rent therefor and that he refused to pay him any rent after January 1,1914, and continued in the possession of the premises for nine months of said year. It is true that he stated he notified appellee upon the payment of the December, 1913, rent that he would not continue in possession of the premises thereafter unless the rent was reduced to $20 per month. There was no testimony tending to show that appellee agreed to any such reduction, however, and appellant’s statement that he thereafter continued in possession, understanding that he was only bound to the payment of the sum of $20 per month, was not testimony contradictory of-and sufficient to show a change of the terms of the agreement under which appellant took possession. His statement alone that he gave notice that he would not retain the premises after January 1, unless a reduction of rent was made and that he did continue in possession thereafter, does not prove that .appellee agreed to any such reduction. The testimony being undisputed the court did not err in directing a verdict for the possession of the premises nor for the amount of damages to be recovered since there was no dispute as to the time the premises were occupied by appellee without the payment of rent, nor of the amount monthly agreed to be paid therefor. The judgment is affirmed.