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Bingham v. Zeno
Citations: 228 Ark. 1039; 312 S.W.2d 181; 1958 Ark. LEXIS 669Docket: 5-1487
Court: Supreme Court of Arkansas; April 14, 1958; Arkansas; State Supreme Court
Carleton Harris, Chief Justice, presided over a legal dispute initiated on May 8, 1948, by siblings Aaron and Esther Zeno against B. H. and Mary Bingham in the Desha Circuit Court, concerning a 160-acre property. The Zenos claimed the land as heirs of Louis Zeno, asserting that the Binghams had conveyed the property to their father via a deed dated May 6, 1937. The Binghams contended that the deed was actually a mortgage and that the associated debt had been cancelled, invoking the statute of limitations. The case was subsequently transferred to Chancery Court. Following the Binghams' deaths in 1950, the case was revived in 1954, but their heirs moved to dismiss based on an alleged failure to obtain revivor within the statutory timeframe; this motion was denied. Clemon Bingham, a child of B. H. Bingham, then intervened, claiming ownership through a warranty deed dated December 20, 1945, and sought to have the original deed declared a mortgage, asserting the debt was barred by limitations. On September 12, 1955, the court dismissed the Zenos' complaint for lack of prosecution, awarding title to Clemon Bingham. On November 28, 1955, the Zenos filed a motion to vacate the decree, citing a lack of notice regarding the trial. A hearing resulted in the court vacating the September 12 decree. The case was tried on November 13, 1956, leading the court to conclude that the 1937 deed was indeed a mortgage, with the secured debt being either paid or barred by limitations. The court awarded the Zenos $3,034.87 for taxes paid from 1936 to 1955, minus rental income, resulting in a net judgment of $2,871.26, plus interest and a lien on the property. Clemon Bingham appealed, arguing that the Zenos were "volunteers" in paying taxes, that they could recover taxes only from three years prior to the lawsuit, and that the court lacked jurisdiction due to the untimely revivor order. The court noted that property owners, including mortgagees, have the right to pay property taxes to protect their interests, referencing past cases to support this principle. Clemon Bingham testified he attempted to pay taxes but was informed the Zenos had already done so, although records indicated the Zenos often paid late. Appellant had ample opportunity to pay the taxes but appeared to benefit from others' payments without taking action himself. The court found no merit in appellant's claims, affirming that appellees had the right to pay taxes on the property from the start of their ownership, which tolled the statute of limitations on the original debt. Although the trial court ruled that the original indebtedness was either extinguished by payment or barred by limitations, the specific status of the indebtedness was unclear, and since appellees did not appeal this ruling, it was not a matter for consideration. Clemon Bingham's intervention was deemed valid despite the improper Order of Revivor, as he voluntarily entered the litigation and could not contest prior proceedings. His intervention initiated a new action regarding the land. Testimony indicated that Clemon attempted to pay taxes in the fall, knowing another party was covering the payments. He denied seeking to avoid his tax responsibilities and did not offer to reimburse the payer. The motion for revivor was filed nearly three years post the death of B. H. Bingham, with no appeals from other heirs acknowledging Clemon's deed. All significant details from the original document have been preserved in this summary.