Brown v. Arkansas Central Railway Co. , 1904 Ark. LEXIS 177 ( 1904 )

Riddick, J.

(after stating the facts). Plaintiffs in this' action seek, as the widow and heirs of H. H. Brown, to recover of defendant compensation for a right of way across a tract of land containing 520 acres. This whole tract was in the possession of Brown at the time of his death. It seems to be conceded that he had a complete title to the 80 acres upon which his house was located. For the other 440 acres he held a bond for title from Mrs. Ullery, who was the owner thereof. After his death his widow and heirs paid the remainder of the purchase money due to Mrs. Ullery. The equitable title was then complete in them, just as if Brown, the purchaser from Mrs. Ullery, had paid all of the purchase money before his death. The bare legal title remained in Mrs. Ullery, and she by deed conveyed it to Mrs. Brown. On the trial this deed was introduced in evidence by the defendant. It shows that the legal title was conveyed by Mrs. Ullery to Mrs. Brown, and it recites that this was done at the request of the children of H. H. Brown. But this recital is not evidence against them, for they were not parties to the deed, and did not offer it in evidence. As to them this recital is res inter alios acta. But if that recital be taken as true, Mrs. Brown would still hold the land in trust for the heirs, except as to her dower or other interest therein as the widow of H. H. Brown.

If one buy land and pay for it, and take title in the name of another, a trust results in favor of the person paying the purchase money, though a purchase by a parent in the name of a child, or other person whom he is under obligations to support, is presumed to be an advancement or gift, and no trust results. But in this case the mother and children together paid the remainder of the purchase money left unpaid by the father. Some of the children were minors. The)' were under no legal obligation to support their mother, and we think, under the facts of this case so far as they are shown in the record, that Mrs. Brown simply holds this land as trustee for the heirs to the extent of their interest in the same. That being so, we are of the opinion that the whole 520 acres belongs, in equity, to the heirs, subject to the homestead and dower rights of the widow. They were all parties to the action, and we are of the opinion that compensation for the injury done to the entire tract by the taking of the right of way may be recovered in one action, and that there was no misjoinder 'of either parties or actions. AVe therefore think that the court erred in dismissing the action on that ground.

Again, the right of way was taken before the deed from Mrs. Ullery to Mrs. Brown. The damages had airead)' accrued at the time the deed was made, and it did not affect the right of the heirs to compensation for the injury they had already sustained. But the deed from Mrs. Ullery made it unnecessary to make her a party to the action, for she had no interest in the action.

As the action was dismissed before the defendant had introduced its evidence, and probably before the facts were fully developed, we think that the case should be remanded for trial on the merits. The judgment is therefore reversed, and the cause remanded, with an order to overrule the motion to dismiss, and proceed with the hearing of the case.