Shirey v. Clark , 72 Ark. 539 ( 1904 )

Hughes, J.

(after stating the facts.) It is contended that the conveyance by A. W. Clark to Emily Clark, his wife, created a contingent remainder, which was defeated, and that the estate reverted to the grantor, the precedent estate having expired by the wife’s death before his; and the counsel for appellant say “that a deed to the heirs of a living person is always held void unless it is clear from the context that children are meant, which could not be where there is, as here, no context.” We may admit that his statement of the law is correct; and yet his assumption of fact upon which his statement of the law is predicated is clearly wrong. It is conceded and undeniable that if the words in the deed of Clark to his wife — “to have and to hold during her life or widowhood, in the event that she shall become the widow of said A. W. Clark, and after her death, or future marriage, then to the heirs of said A. W. Clark by the said Emily Clark — meant the children of A. W. Clark, then the deed was valid, and created a vested remainder. What other meaning could attach to the words, “heirs of said A. W. Clark by the said Emily Clark?” They could only mean the children of the said A. W. Clark by the said Emily Clark then living. The maxim, “Nemo est haeres mventis” does not apply here, because the word “heirs,” as used, evidently means children in esse.. The intention of the grantor in the deed must prevail; and it is evident by the use of the words “heirs of said A. W. Clark by the said Emily Clark” he could have meant nothing else than the children of the said A. W. Clark by the said Emily Clark. Pingrey, Real Property, § 1288; Tharp v. Yarbrough, 79 Ga. 382; Waddell v. Waddell, 99 Mo. 338; Womrath v. McCormick, 51 Pa. St. 504; Wyman v. Johnson, 68 Ark. 369.

Upon the death of his father, Anthony W. Clark, Jr., his son, Loyd W. Clark, succeeded to the interest of his father.

The appellant insists that the appellees were barred by the statute of limitations or by adverse possession, but there was no plea of adverse possession or the statute of limitations in the court below, and the appellant cannot be allowed to insist upon either in this court. Stillwell v. Badgett, 22 Ark. 164; McGehee v. Blackwell, 28 Ark. 27; Riley v. Norman, 39 Ark. 158. A fact relied upon to remove the statute bar must be specially pleaded. Stillwell v. Badgett, 22 Ark. 164. The statute of limitations must be pleaded by demurrer or answer. Riley v. Norman, 39 Ark. 158.

The judgment allowed the appellees $800 rents. This was error. The appellees were entitled to rent for only three years at $100 per year as per agreement, which was that the rent was of the value of $100 per year. The law is that not more than three years’ rent can be recovered in ejectment. Sand. & H. Dig. § 2592. The judgment is affirmed, with allowance of only $300 rent, instead of $800, and this case is remanded with directions to enter a decree below in accordance herewith.