rehearing">

on rehearing.

Hart, J.

The chancellor found that the rental value of the property exchanged by the guardian of appellees was $7 per month, and rents were allowed by him from December 17, 1904, the date of the exchange. He found the amount to be $478, and the decree provided for the payment of that sum by appellant to appellees. This was a clerical mistake. A calculation will show that the amount due, figured on the same basis as that adopted by the chancellor, will show the amount to be $378.

When appellant went into possession of the property, the barn and garden fence had entirely rotted away. The dwelling house itself was badly out of repair, and portions of it decayed. The roof and floors of the porch had rotted away. The roof of the house itself was in a bad state of repair. The steps and one of the sills had rotted away. Altogether the premises were in such dilapidated condition that they were unfit for habitation. Appellant weatherboarded and ceiled the house. He rercovered the porch and repaired the floors and the roof of the house, and dug a well, and repaired the fences. These repairs, he says, were worth at least $300.

The rental value of the place from the time appellant went into possession of it until the date of the commencement of the suit amounted to $182. Appellant is entitled to setoff the repairs made by him against these rents, and appellees will be only allowed to recover rents from the date of their demand for possession, which was the date of the commencement of the suit. The value of the rents will be fixed at the rate allowed by the chancellor, that is to say, at $7 per month. This is done in application of t'he maxim that he who seeks equity 'must do equity. It must be remembered that appellees, and not the aplant, are the actors in the present suit, and that they have come into a court of equity to establish their rights to the property itself. The repairs made by appellant were necessary in order to render the premises inhabitable, and they were made under a bona fide belief that he was the owner thereof. Hence he should, upon principles of justice and equity, be allowed to set them off against the rents up to the date of demand of possession by appellees, which as we have already seen was the date of the commencement of the action.

“Minors are not liable for permanent and valuable improvements placed on their homestead. They can not be improved out of their homesteads; nor can the occupants be lawfully charged an increased rent on account of their improvements. In the absence of a contract, the occupants should be allowed a reasonable compensation for necessary repairs, and charged with such rents for the premises as they would have yielded without the improvements.” Sparkman v. Roberts, 61 Ark. at p. 32, and cases cited. To the same effect see Gatlin v. Lafon, post p. 256; 3 Pomeroy’s Equity Jurisprudence (3 ed.), § 1241, and cases cited; McDonald v. Rankin, 92 Ark. 173, where this principle of equity is recognized.

The minors never received the $150 paid their guardian in exchange for their property, and of course are not now in possession of it. Therefore they are not bound to restore it. Meyer v. Rousseau, 47 Ark. at p. 464; Stull v. Harris, 51 Ark. 294.

Under the opinion on rehearing, appellees were only entitled to recover rents to the amount of $192.50, and to that extent the rehearing is granted, and the former decree modified. In all other respects the motion for a rehearing will be denied.

Citation profile

Relationships

How this case has been treated — in progress