Luster v. Arnold

458 S.W.2d 414, 249 Ark. 152, 1970 Ark. LEXIS 1076
CourtSupreme Court of Arkansas
DecidedOctober 12, 1970
Docket5-5316
StatusPublished
Cited by7 cases

This text of 458 S.W.2d 414 (Luster v. Arnold) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luster v. Arnold, 458 S.W.2d 414, 249 Ark. 152, 1970 Ark. LEXIS 1076 (Ark. 1970).

Opinion

Lyle Brown, Justice.

The parties to this litigation are all the heirs of James A. Luster, deceased. Suit was instituted by appellees here, Ida Luster Arnold (daughter) and the tseven surviving children of Champ Luster (son). They named as defendants (appellants) the other living children of James A. Luster, who are in possession of the lands in which Ida, along with Champ’s children, claim an interest. From the decision of the chancellor there is an appeal and cross-appeal and the numerous points will later be recited.

James A. Luster owned roughly 1000 acres of land in Independence County and some town property in Bates-ville, the county seat. In 1922 he conveyed a substantial portion of the property, naming three of his sons and the heirs of their bodies as grantees. The granting clause read:

[U]nto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster and unto the heirs of their bodies (that is to say, unto each of said grantees, and the heirs of his body, an undivided one-third). . .

The habendum provided:

To have and to hold the same unto the said Sidney J. Luster, Robert E. Luster and Harry D. Luster, and to the heirs of their bodies in the interests or shares above mentioned...

The grantor died intestate in 1924, followed by the death of his widow in 1953.

Shortly after the conveyance Sidney, Robert, and Harry Luster went into possession. The lands forfeited for taxes for 1929 and Sidney and Harry each redeemed an. undivided one-third interest. Sidney allegedly became the record owner (through tax title): of Robert’s one-third interest, save and except a tract known as The Island, to which a sister, Winnie Luster Atchison obtained a state deed. Summarizing the title at the time this suit was filed against appellants, Sidney and Harry claimed under the deed from their father; additionally Sidney claimed to have acquired Robert’s one-third except The Island; and Winnie claimed The Island. The parties named have been in possession for about forty years.

The event that precipitated this suit was the death of Robert in 1967, intestate and without widow or children. Ida Luster Arnold and the heirs of Champ,Luster took the position that the death of Robert worked an investiture of his interest into the estate of James A. Luster, - the father, in fee simple, which meant that, the title to that interest descended by heirship as follows: Ida Arnold, one-fifth of the one-third interest; thé seven children of Champ Luster, deceased, each a one thirty-fifth interest in the one-third; and in Harry, Sidney, and Winnie, each a one-fifth interest in the one-third. Ida, along with Champ’s children, as plaintiffs (appel-lees) claimed there was no way to equitably divide the respective interests in the lands and asked that a sale be decreed. Additionally they prayed for an accounting of the. rents and profits from Robert’s interest since his death in 1967. The issues of survivorship, sale, and accounting were all disputed and the court found:

That the effect of the father’s deed was to create a “divestible reversion” to the lands in the father; that upon the father’s death intestate the divesdble reversion descended to his children as tenants in common; that upon the death of Robert intestate and without bodily heirs or widow, his interest in the divestible reversion descended to his brothers, sisters, and the children of Champ Luster, the deceased brother, in fee simple; that the tax forfeitures relied on by Sidney and Winnie, and purportedly covering Robert’s interest, were void for jurisdictional defects and therefore conveyed no title; that Winnie’s claim to a part of Robert’s interest (The Island) by adverse possession could not prevail because the statute of limitations could not begin to run until Robert’s death in 1967; that plaintiffs-appellees could not recover rents for failure of proof; and finally, that the lands could not be partitioned or sold until the death of both Sidney and Harry Luster.

Sidney, Harry, and Winnie appeal with respect to all findings as regard the title. Appellees challenge the court’s refusal to order a sale and the court’s denial of accounting. The points of the parties will be set out as they appear in the briefs.

Appellants’ Point I. The James A. Luster deed created a life estate in each of the grantees and a contingent remainder in the whole to the bodily heirs of any of the grantees. We do not agree. The terms of the grants are without ambiguity and in that situation the law favors a determination of the grantor’s intent from the wording of the conveyance. Our law is well settled that a reversionary interest to the lands remained in James A. Luster. When Robert died without issue that one-third interest reverted to James A. Luster or his estate. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739 (1951); Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975 (1911).

Appellants’ Point II. Sidney Luster acquired the fee simple title to the one-third interest granted to Robert Luster, except that interest acquired by Winnie Luster Atchison, a sister. The lands were listed on the assessment records as "Luster, Sid, Bob, and Harry.” They were likewise listed on the tax books, made from the assessment records. The record book for delinquent lands shows that the ownership was there treated as a unit (advertised and sold as a unit) rather than fractional separate assessments. It is apparent that Sidney thereafter persuaded the custodian of the assessment records to change the original assessment by striking his name from the list of brothers and entering a separate assessment for Sidney’s undivided one-third. We mention the status of the records because we cannot agree with appellants that the lands “were assessed to each of the three Luster brothers separately.”

A stranger to the title, R. E. Brock, obtained a deed to a one-third interest (allegedly Robert’s equity) from the State in 1932. In 1940 Brock deeded part of his interest so obtained to Sidney Luster. The remainder of Brock’s interest forfeited some years later for taxes and Sidney purchased those lands from the State. The transactions we have recited covered all of Robert’s interest except a tract known as The Island, which will be discussed in the next point for reversal.

Sidney acquired no title by virtue of the tax sales, assuming that all the taxing and sales proceedings were valid. That is because Sidney and Robert were tenants in common. In Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579 (1943), we said:

It is well settled that a tenant in common cannot add to or strengthen his title by purchasing title to the entire property at a tax sale, nor by purchasing it from a stranger who has purchased at such sale; that such purchase amounts to no more than a redemption, which inures to the benefit of the other tenants as well as himself, and confers no right upon such tenant so purchasing except to demand contribution from his co-tenants.

Sidney also relies on Ark. Stat. Ann. § 84-925 (Repl. 1960). He contends that statute extinguishes Robert’s interest. The cited statute provides that when a life tenant fails to redeem from a tax forfeiture, the person next entitled to the lands in remainder or reversion may redeem and extinguish the life tenant’s title.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Busby v. Thompson
689 S.W.2d 572 (Supreme Court of Arkansas, 1985)
Henderson v. Ellis
665 S.W.2d 289 (Court of Appeals of Arkansas, 1984)
Fletcher v. Hurdle
536 S.W.2d 109 (Supreme Court of Arkansas, 1976)
Gibson v. Pickett
512 S.W.2d 532 (Supreme Court of Arkansas, 1974)
Heustess v. Oswalt
488 S.W.2d 707 (Supreme Court of Arkansas, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
458 S.W.2d 414, 249 Ark. 152, 1970 Ark. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luster-v-arnold-ark-1970.