WOOD, J.,
(after stating the facts). (1) The principal question as stated by counsel for the appellants is: “Did Eugene A. Causey at the time of his conveyance to T. F.-Tillar have a life estate or an estate in fee simple in the east half and the northeast quarter of the southwest quarter of section 16, township 11 south, range 3 west?”
The chancery court was correct in finding that Eugene A. Causey acquired title in fee to these lands “by virtue of the decree of the chancery court of Desha County in the case of Eugene A. Causey v. Alice and Laura Williams. The decree of the court in that case confirmed and quieted the title to these lands in Eugene A. Causey in fee simple and the pleadings and the evidence in that cause as well as the findings of the court show that the court rendering such decree had jurisdiction of the subject-matter and of the proper parties and that its decree was within the issue. This rendered the decree binding upon the parties and their privies.” Rankin v. Schofield, 81 Ark. 440-462, and cases cited.
Analysis of the complaint in that case shows that plaintiff was suing not for a fife estate but for fee simple title in’the lands. He set up an oral contract by which Adair promised to give him the lands and under which he went into possession and made valuable improvements, which took the contract out of the statute of frauds and entitled him to specific performance of the contract. Young v. Crawford, 82 Ark. 33; Williams v. Neighbors, 107 Ark. 473.
"While the complaint sets up that it was the purpose of the testator Adair to carry out his contract by will and sets up the will and alleges that certain lands intended to be given him were not included therein, and that certain other lands which the testator did not own were through the mistake of the draughtsman inserted in the will and asked that the description of the lands be corrected, yet it is very clear when these allegations are taken in connection with other allegations of the complaint and in connection with the testimony that was adduced in that cause and with the decree rendered, that the plaintiff Causey was seeking to have fee simple title vested in him to all the lands in section 16 described in his complaint. Whatever may be the ambiguity in the complaint, that Causey intended thereby to raise the issue that he was entitled to a fee simple estate in the lands described therein can not be doubted when his testimony and the testimony of Berry adduced in the trial of that cause is considered.
(2) The language of the decree shows that the court understood that the issue joined was whether or not the plaintiff Causey was entitled to the specific performance of the contract of Adair to give Causey a fee simple estate in the lands. The allegations of the complaint, and the testimony of Causey and of Berry fully justified such conclusion. The testimony of Causey in short was that his uncle Adair made him a gift of all his lands in section 16, selected ,a site for his home, told him that it would be unnecessary to execute a deed as he Adair by his will would complete a title in (him) Causey.
“A promise to give land absolutely and execute a deed therefor is a promise to convey the whole of the grantor’s estate, not merely a life estate.” Burlingame v. Rowland, 19 Pac. 526.
(3) The word title, when used in reference to title in real estate, -“implies an estate in fee; nothing short thereof is a complete title.” Gillespie v. Broas, 23 Barber 370-381.
“Title, in common acceptance, means the full and absolute title. ” U. S. v. Hunter, 21 Fed. 615-617. ‘‘ Title ’’ Century Dict.; Hoult v. Donahue, 21 W. Va., 294; Langmede v. Weaver, 65 Ohio St. 37; Johnson v. Gardner (N. Y.), 10 Johns. 266-269; Pinkston v. Huie, 9 Ala. 252.
(4) The appellants here are bound by the decree in Causey v. Williams, although they were not in esse at the time of the rendition of said decree.
Judge Story says: “So, if there be a tenant for life, remainder to his first son in tail, remainder over; and the tenant for life is brought before the court before he has issue, it is settled in equity that the contingent remaindermen are barred, and (as has been said) from necessity.” Story’s Equity Pl. (10 ed.), p. 153; Riddley v. Halliday, 61 S. W. 1025, and other authorities there cited and reviewed.
In the latter case, after reviewing English and American authorities, the court announces substantially the above rule and quotes from Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704, 18 L. R. A. 331, as follows: “Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes .of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity.”
Counsel for appellants rely upon LeSieur v. Spikes, 117 Ark. 366, where we held that “a life tenant could not by conveying a greater interest than she possessed before the birth of any child or children deprive such child or children of their fee simple estate in remainder.”
But this does not conflict with the rule above announced, which, as we have seen out of considerations of convenience and necessity for the purpose of settling litigated titles, makes the life tenant the' representative of the remainderman not in being. It follows that the suit of Causey v. Williams vested a fee simple title to the lands in controversy in that suit in Causey. He was not estopped from maintaining such suit by his conduct nor barred by the statute of limitation. His children, the appellants here, were bound by that decree and by his conveyance to Tillar.
The court found that Eugene A. Causey was the owner of a life estate in the west half of the west half of section 15 by virtue of the will of Isaac Adair and that T. F. Tillar acquired this life estate through Causey’s deed.
This finding was also correct. The land in section 15 was not in issue in the suit of Causey v. Williams. The will unquestionably created but a life estate in Causey with the remainder in fee to his children. Rogers v. Ogburn, 116 Ark. 233, and cases there cited.
The appellees have not appealed and do not challenge the correctness of the court’s finding as to title of the land in section 15.
(5) This brings us to a consideration of the issue as to what damages, if any, appellants have sustained by reason of waste committed by appellee on the west half of the west half of section 15.
In McLeod v. Dial, 63 Ark. 10-15, the rule as to the rights of the life tenant is announced substantially as follows:
“He has no right to cut trees growing on this portion of the land, or allow them .to be cut except so far as was necessary to the proper and reasonable enjoyment of his life estate in conformity with good husbandry.
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WOOD, J.,
(after stating the facts). (1) The principal question as stated by counsel for the appellants is: “Did Eugene A. Causey at the time of his conveyance to T. F.-Tillar have a life estate or an estate in fee simple in the east half and the northeast quarter of the southwest quarter of section 16, township 11 south, range 3 west?”
The chancery court was correct in finding that Eugene A. Causey acquired title in fee to these lands “by virtue of the decree of the chancery court of Desha County in the case of Eugene A. Causey v. Alice and Laura Williams. The decree of the court in that case confirmed and quieted the title to these lands in Eugene A. Causey in fee simple and the pleadings and the evidence in that cause as well as the findings of the court show that the court rendering such decree had jurisdiction of the subject-matter and of the proper parties and that its decree was within the issue. This rendered the decree binding upon the parties and their privies.” Rankin v. Schofield, 81 Ark. 440-462, and cases cited.
Analysis of the complaint in that case shows that plaintiff was suing not for a fife estate but for fee simple title in’the lands. He set up an oral contract by which Adair promised to give him the lands and under which he went into possession and made valuable improvements, which took the contract out of the statute of frauds and entitled him to specific performance of the contract. Young v. Crawford, 82 Ark. 33; Williams v. Neighbors, 107 Ark. 473.
"While the complaint sets up that it was the purpose of the testator Adair to carry out his contract by will and sets up the will and alleges that certain lands intended to be given him were not included therein, and that certain other lands which the testator did not own were through the mistake of the draughtsman inserted in the will and asked that the description of the lands be corrected, yet it is very clear when these allegations are taken in connection with other allegations of the complaint and in connection with the testimony that was adduced in that cause and with the decree rendered, that the plaintiff Causey was seeking to have fee simple title vested in him to all the lands in section 16 described in his complaint. Whatever may be the ambiguity in the complaint, that Causey intended thereby to raise the issue that he was entitled to a fee simple estate in the lands described therein can not be doubted when his testimony and the testimony of Berry adduced in the trial of that cause is considered.
(2) The language of the decree shows that the court understood that the issue joined was whether or not the plaintiff Causey was entitled to the specific performance of the contract of Adair to give Causey a fee simple estate in the lands. The allegations of the complaint, and the testimony of Causey and of Berry fully justified such conclusion. The testimony of Causey in short was that his uncle Adair made him a gift of all his lands in section 16, selected ,a site for his home, told him that it would be unnecessary to execute a deed as he Adair by his will would complete a title in (him) Causey.
“A promise to give land absolutely and execute a deed therefor is a promise to convey the whole of the grantor’s estate, not merely a life estate.” Burlingame v. Rowland, 19 Pac. 526.
(3) The word title, when used in reference to title in real estate, -“implies an estate in fee; nothing short thereof is a complete title.” Gillespie v. Broas, 23 Barber 370-381.
“Title, in common acceptance, means the full and absolute title. ” U. S. v. Hunter, 21 Fed. 615-617. ‘‘ Title ’’ Century Dict.; Hoult v. Donahue, 21 W. Va., 294; Langmede v. Weaver, 65 Ohio St. 37; Johnson v. Gardner (N. Y.), 10 Johns. 266-269; Pinkston v. Huie, 9 Ala. 252.
(4) The appellants here are bound by the decree in Causey v. Williams, although they were not in esse at the time of the rendition of said decree.
Judge Story says: “So, if there be a tenant for life, remainder to his first son in tail, remainder over; and the tenant for life is brought before the court before he has issue, it is settled in equity that the contingent remaindermen are barred, and (as has been said) from necessity.” Story’s Equity Pl. (10 ed.), p. 153; Riddley v. Halliday, 61 S. W. 1025, and other authorities there cited and reviewed.
In the latter case, after reviewing English and American authorities, the court announces substantially the above rule and quotes from Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704, 18 L. R. A. 331, as follows: “Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes .of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity.”
Counsel for appellants rely upon LeSieur v. Spikes, 117 Ark. 366, where we held that “a life tenant could not by conveying a greater interest than she possessed before the birth of any child or children deprive such child or children of their fee simple estate in remainder.”
But this does not conflict with the rule above announced, which, as we have seen out of considerations of convenience and necessity for the purpose of settling litigated titles, makes the life tenant the' representative of the remainderman not in being. It follows that the suit of Causey v. Williams vested a fee simple title to the lands in controversy in that suit in Causey. He was not estopped from maintaining such suit by his conduct nor barred by the statute of limitation. His children, the appellants here, were bound by that decree and by his conveyance to Tillar.
The court found that Eugene A. Causey was the owner of a life estate in the west half of the west half of section 15 by virtue of the will of Isaac Adair and that T. F. Tillar acquired this life estate through Causey’s deed.
This finding was also correct. The land in section 15 was not in issue in the suit of Causey v. Williams. The will unquestionably created but a life estate in Causey with the remainder in fee to his children. Rogers v. Ogburn, 116 Ark. 233, and cases there cited.
The appellees have not appealed and do not challenge the correctness of the court’s finding as to title of the land in section 15.
(5) This brings us to a consideration of the issue as to what damages, if any, appellants have sustained by reason of waste committed by appellee on the west half of the west half of section 15.
In McLeod v. Dial, 63 Ark. 10-15, the rule as to the rights of the life tenant is announced substantially as follows:
“He has no right to cut trees growing on this portion of the land, or allow them .to be cut except so far as was necessary to the proper and reasonable enjoyment of his life estate in conformity with good husbandry. For the purpose of using it as farming land, he had the right to clear a part of it, provided such part and that already prepared for cultivation, as compared with the remainder of the tract, did not exceed the proportion of cleared to wooded land usually maintained in good husbandry, and provided, further, that lie did not materially lessen the value of the inheritance. He also had the right to cut and use so much of the timber standing on the one-half which belonged to his wife as was necessary for fuel, and for making and repairing fences and buildings on the same. But the timber could only be cut or used for the proper enjoyment of the estate for life and not merely for sale.”
Several witnesses testified on behalf of the appellants placing their damage by reason of the removing of the timber from the 160 acres in section 15, all the way from $2,500 to $7,000, but this testimony was based on the theory that the entire Causey tract of more than 500 acres was involved.
The court, as we have seen, 'correctly limited the damage to the 160 acres in section' 15, which was all woodland.
The Tillar Mercantile Company, the lessee of the Tillar estate, had sold to the Fee Crayton Lumber Company all the merchantable timber on this tract, and received therefor the sum of $1,600. The latter company was made a party to this suit and interrogatories were propounded to it by appellants to ascertain the value, of the timber taken by it from the land. Its answer shows the value of the timber removed by it from the .land, was $619.38. This answer was duly verified and was not denied by the appellants .and it fixes the actual value of the timber taken.
The testimony shows that good husbandry required that 25 per cent, of standing timber should be left to supply the upkeep of a farm. Therefore, under the «above rule the Tillar estate as life tenant had the right to clear all except 40 acres of the 160 acres for farming purposes, and the damage to the appellants could not have been more than one-fourth of the actual value of the timber taken.
The chancery court found that the appellants had sustained damages in the sum of $154.84, which sum was exactly one-fourth of the value of the timber that had been removed from the entire tract of 160 acres.
The decree of the court is correct, and is, therefore, affirmed.