dissenting. I respectfully dissent from the majority opinion in this case. Although I agree with the majority that this case should be reversed, I would remand the case to the trial court to permit appellee to move for substitution of the proper parties pursuant to Ark. R. Civ. P. 25. The majority reverses the chancellor’s decision on the basis that appellee is not entitled to the value of improvements or taxes because she has no interest in the land and never had any interest in the land. However, I believe the case should be remanded to allow appellee to substitute a proper party pursuant to Ark. R. Civ. P. 25 since her husband, who had an interest in the land at issue, died prior to the trial and would have been entitled to the taxes and value of the improvements under the betterment statute.
Appellant first contends that the chancellor erred in awarding appellees the value of the improvements to the land because they were not entitled to them based on Elbridge Acord’s status as a life tenant. The Arkansas Supreme Court has held that a life tenant may not recover from the remaindermen the value of improvements made to the property during his tenancy. Kelley v. Acker, 216 Ark. 867, 228 S.W.2d 49 (1950); Smith v. Stanton, 187 Ark. 447, 60 S.W.2d 183 (1933). Although a life tenant is not entitled to the value of the improvements, Elbridge Acord would have been entitled to them under the betterment statute codified at Ark. Code Ann. § 18-60-213 (1987).
Appellant next contends that the chancellor erred in awarding appellees the value of improvements and taxes based on the betterment statute. As the majority opinion notes, the statute states in pertinent part as follows:
(a) If any person believing himself to be the owner, either in law or in equity, under color of title has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as stated and the amount of all taxes which may have been paid on the land by the person, and those under whom he claims, shall be paid by the successful party to the occupant, or the person under whom, or from who, he entered and holds, before the court rendering judgment in the proceeding shall cause possession to be delivered to the successful party.
Ark. Code Ann. § 18-60-213(a). Under this section, one entitled to recover must meet the following tests: (1) he must believe himself to be the owner of the property; and (2) he must hold the property under color of title. Tolson v. Dunn, 48 Ark. App. 219, 223, 893 S.W.2d 354 (1995). The supreme court has stated that “color of title” connotes an instrument which, by apt words of transfer, passes what purports to be a title but which is defective in form. Id. (citing Baker v. Ellis, 245 Ark. 484, 486, 432 S.W.2d 871 (1968)). Black’s Law Dictionary, 4th edition, defines “color of title” as “the appearance, semblance, or simulacrum of title; a writing on its face professing to pass title but which does not, either through want of title in the grantor or defective mode of conveyance.”
As discussed by the majority, appellee Merle Acord testified that she and her husband received a copy of the 1986 deed from Joe Acord conveying a life estate in the property to Elbridge and Mark Acord. She stated that they moved from Missouri to the property at issue in 1987 and paid taxes on such until 1997. She stated they began to build a home on the property in 1991. Appellant, Don Acord, testified that he was aware appellees were building a home on the property but did not go to them and ask them to stop. Appellee Merle Acord also testified that they did not know about the 1986 deed to Harold and Don Acord until after the lawsuit was filed. She stated she knew that Joe Acord intended for them to just have the right.to live on the property. She further testified that they thought a life estate meant they would receive the property when Joe Acord died. She stated that they thought they owned the land after the 1988 deed conveying the property to Elbridge and Mark Acord. Also, at that time they were still unaware of the 1986 deed to Harold and Don Acord conveying the fee estate.
The chancellor ruled in Merle Acord’s favor, conclusively finding that she and her deceased husband, Elbridge Acord, honestly believed they were the owners of the property at issue and that they had color of title based on the 1988 deed purporting to convey Elbridge and Mark Acord fee simple ownership in the property. It should be noted that a deed conveying only a life estate is not sufficient color of title to bring the grantee of a life estate within the purview of the betterment statute. Perry v. Rye, 223 Ark. 594, 267 S.W.2d 507 (1954). However, the 1988 deed purported to convey a fee simple. The 1988 deed contained the following pertinent language:
THAT I, JOE ACORD, ... do hereby grant, bargain, sell and convey upon the following conditions, unto the said Elbridge A.J. Acord and Mark Elbridge Acord, and unto their heirs and assigns forever, the following lands lying in the County of Johnson and State of Arkansas, to-wit:
[description of the property]
Limitations: This conveyance is made on the condition that neither Elbridge A J. Acord nor Mark Elbridge Acord, shall have the right to transfer, alienate, encumber or convey the hereinabove described lands.
The purpose of this deed is to correct the warranty deed filed on May 21, 1986 at Book 186, Page 23, which erroneously limited the estates granted to Grantees hereinabove to life estates.
I believe that this deed, along with Merle and Elbridge Acord’s honest belief that they owned the property subsequent to the 1988 deed, gave them color of title, bringing Elbridge Acord’s claim for taxes and improvements within the purview of the betterment statute. As the majority states, appellant Merle Acord’s name does not appear on the 1988 deed; however, Elbridge Acord’s name does appear on the 1988 deed, and he would have been entitled to the value of taxes and improvements under the betterment statute had he not died prior to the hearing on the matter. Therefore, I believe that this case should be remanded to allow appellee to substitute the proper party pursuant to Ark. R. Civ. P. 25 and that the award of taxes and improvements should be awarded to the proper party based on the betterment statute.
For the reasons stated, I respectfully dissent. I am authorized to state that Judge BIRD joins in this dissent.