Kelley v. Acker

W. A. McMillian died intestate at Prescott, Arkansas, survived by his widow and two married daughters, the appellant, Mrs. E. M. Kelley, and appellee, Annie Lee Acker. At the time of his death in April, 1938, Mr. McMillian owned a house and lot in Prescott which constituted his homestead. His widow continued to reside in the home until her death in January, 1949. Appellee went to live with her parents about 1929 and has since resided on the property in controversy. Appellant, who has resided in Tulsa, Oklahoma, for many years, filed this suit against appellee to partition and sell the property, alleging that each owned an undivided half-interest therein, subject to a mortgage indebtedness due Home Owners Loan Corporation in the sum of $495. In her answer and cross-complaint, appellee denied that appellant was entitled to an equal division of the proceeds of the partition sale and alleged that appellee had discharged $739.20 of the mortgage debt to HOLC, and had paid $462.21 in repairs and $109.07 for a not water heater, which was attached as a fixture to the property; that the amounts paid should be fixed as a lien against the property, and paid her out of the proceeds of the partition sale. In reply, appellant denied that appellee made said payments and further alleged that if she did so, she acted as a mere volunteer, and said payments should be considered as rent for her use and occupancy of the property; and that appellant was entitled to contribution for the rental value of the home since the death of their mother.