dissenting in part. I would modify the judgment of the trial court in one respect. I think the minor is entitled to interest on the r.ent monies due him, calculated on the basis of each annual due date. Ample authority for this conclusion is cited in Justice Fogleman’s dissent and is not here repeated.
John A. Fogleman, Justice,dissenting. I must respectfully dissent from the decision and opinion of the majority.
In treating what they designate as appellants’ Point One, I feel that they have misapplied the very wholesome doctrine that one who has accepted benefits of a judgment or decreee cannot question the validity thereof. The validity of the judgment was not questioned by the minor appellant. He only contended that he was entitled to a greater amount in that the court failed to include in the damages for detention of his property interest on the amount found to be the annual fair rental value thereof. There was no cross-appeal as to the amount of these damages. His appeal could have only resulted in either an affirmance as to this amount or an increase and there was no hazard of a reduction of the amount of his recovery.
There is no doubt that the acceptance of benefit^ of a decree which are inconsistent with the relief sought on appeal bars the appeal and requires its dismissal. In addition to cases cited in the majority opinion, see Wolford v. Warfield, 170 Ark. 82, 278 S. W. 639; Mathis v. Litteral, 117 Ark. 481, 175 S. W. 398 and Anderson v. Anderson, 223 Ark. 571, 267 S. W. 2d 316. The same rule applies when the benefits accepted can only be enjoyed by abiding by the judgment of the court. Stanley v. Dishough, 50 Ark. 201, 6 S. W. 896. The doctrine does not apply, however, when the benefit accepted is not inconsistent with the claim asserted by appellant on appeal. M. H. McCown v. Nicks, 171 Ark. 260, 284 S. W. 739; Bass v. John, 217 Ark. 487, 230 S. W. 2d 946; Kelley v. Laconia Levee Dist., 74 Ark. 202, 85 S. W. 249; Cranford v. Hodges, 141 Ark. 587, 218 S. W. 185. The rule is well stated in an early case, Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926, frequently cited in later cases, in these words:
“* ** Again, a party may prosecute Ms appeal from a judgment partly in Ms favor and partly against him even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event. ’ ’
The acceptance of an amount less than appellant contends is due Mm is an estoppel against his appeal only when, by seeking to gain more by the appeal, he risks a smaller recovery on reversal. Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S. W. 857. See also, Jones v. Hall, 136 Ark. 348, 206 S. W. 671 and Gate City Bldg. & Loan Ass’n. v. Frisby, 177 Ark. 252, 6 S. W. 2d 537.
The acceptance by appellants of a credit on a judgment against them for an amount becoming due them from an appellee after the rendition of the decree awarding the judgment was held not to be inconsistent with their appeal on which they only contended that they had not been allowed sufficient credits in arriving at the amount of the judgment. Poe v. Walker, 183 Ark. 659, 37 S. W. 2d 866. A wife challenging a decree of divorce in her favor for failure to award her certain personal property and because it placed a time limit on monthly alimony payments was not estopped to prosecute her appeal by acceptance of the monthly alimony payments provided in the decree where there was no cross-appeal questioning the amount of alimony to be paid each month. McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550.
TMs appeal, being, a trial de novo to decide whether interest should have been included in the jumor De-Laughter’s damages, could not have resulted in the recovery' of a smaller amount on reversal, so appellant was not estopped to appeal.
There is another reason why the son’s appeal is not barred. This appellant is a minor and subject to the disabilities of minority. An estoppel is not operative against one under legal disability. Wood v. Terry, 30 Ark. 385; Tobin v. Spann, 85 Ark. 556, 109 S. W. 534; Rowe v. Allison, 87 Ark. 206, 112 S. W. 395 and Arkansas Reo Motor Car Co. v. Goodlett, 163 Ark. 35, 258 S. W. 975.
The language of the opinion of this court in Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39, is particularly appropriate here. The probate court had ordered the sale of lands of a decedent for payment of his debts. The property constituted the homestead of his minor children. Two of them accepted their share of the proceeds of sale remaining after the payment of his debts. There it was said:
“Neither can the doctrine of estoppel be invoked by appellant from the fact that while yet minors two of them were paid their share of the money left from the sale of the homestead after paying the debts, and deposited with the clerk by the administrator. It would be a weak safeguard of the minor’s homestead rights, if the constitutional and statutory protection thrown around such rights could be destroyed by estoppel as is claimed here.”
The damages to which this appellant is entitled are those which would be due to a landowner from a trespasser. The measure of damages for appropriation of the use of land by a continuing trespass is the worth of the use of the property. Combs v. Lake, 91 Ark. 128, 120 S. W. 977 and Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 728.
The worth of use of this type of land is its fair rental value. Quality Excelsior Coal Co. v. Reeves, supra. The rule has been recognized in Arkansas for a long time that the measure of damages to the owner for lands wrongfully withheld is the rental value of the land, if it has such value. Jacks v. Dyer, 31 Ark. 334; McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999; Crowell v. Seelbinder, 185 Ark. 769, 49 S. W. 2d 389. As a part of the damages, the minor appellant was entitled to interest calculated from the end of each year to the date of judgment. Nunn v. Lynch (on rehearing), 89 Ark. 41, 115 S. W. 926; McDonald v. Kenney, supra, and McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88. The minor landowner was entitled to have this interest added to the rental value for each year and I would remand the case for this addition to the judgment in his favor.
As to Point Two, I agree that the pleadings are sufficient to form a basis for judgment in favor of ap-pellee against the adult appellants who were parents of the minor appellant and who are appellants here.
Where the right to recovery necessarily follows as a consequence of the decision of the court upon the allegations of a complaint, recovery may be had under the general prayer for relief. Cunningham v. Ashley, 16 Ark. 181. In chancery practice, where there is a prayer for specific relief and a prayer for general relief, if the state of the case as presented by the bill should not be sustained in evidence or the court should, upon principles of equity, refuse the specific relief, it may, notwithstanding, give to the complainant under his general prayer any relief warranted by the facts set forth in his bill, if the latter is framed to put the facts in issue so that there is no surprise to the adverse party. Cook v. Bronaugh, 13 Ark. 183; Kelly’s Heirs v. McGuire, 15 Ark. 555; Ross v. Davis, 17 Ark. 113; Shields v. Trammell, 19 Ark. 51; Chaffe & Bros. v. Oliver, 39 Ark. 531; Albersen v. Klanke, 177 Ark. 288, 6 S.W. 2d 292; Morgan v. Scott-Mayer Comm. Co., 185 Ark. 637, 48 S. W. 2d 838, and Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633. Even the omission of a prayer is not fatal if the relief to which a party is entitled is apparent from the allegations of the pleadings. Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458. If an issue is made by the pleadings and proof directed thereto, the complaint should not be dismissed but the prayer should be treated as amended to conform to the relief justified by the facts. Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058 and Waterman v. Irby, 76 Ark. 551, 89 S. W. 844.
The first argument advanced by these appellants on this point is based on the failure of appellee to specifically pray for judgment over against them for any amount for which judgment was awarded the minor appellant. The pleading filed by appellee, however, alleged that if the lease be set aside that he should have judgment against the adults for $1,500.00 for repayment of rent, attorney’s fees and costs and damages for the loss of the pasture in the amount of $5,000.00. Prayer was for judgment for $6,500.00, plus attorney’s fees and costs and “for all other just and proper relief.” While appellee was in error as to the measure of his recovery, he did put in issue his right to recover for his loss under the indemnity clause in the lease between the parents and appellee. I do not see how appellee could have been surprised by the proof and the judgment granted.
In another respect, however, the judgment was erroneous in that the maximum amount of recovery is limited to the amount set out in the complaint and it is error to render judgment for a greater amount. Hudspeth & Sutton v. Gray, Durrive & Co., 5 Ark. 157; White v. Cannada, 25 Ark. 41; Cohn v. Hoffman, 45 Ark. 376 (damages in ejectment); Western Union Telegraph Co. v. Byrd, Admx., 197 Ark. 152, 122 S. W. 2d 569; Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110 (chancery case); Thudium v. Dickson, 218 Ark. 1, 235 S. W. 2d 53; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98; Abel of Arkansas, Inc. v. Richards, 236 Ark. 281, 365 S. W. 2d 705. For this reason I would reduce the judgment in favor of appellee to $6,500.00, if the judgment itself were not erroneous and void for still another reason.
The decree rendered provided that appellee have judgment against the adult appellants after, and only after, he had fully satisfied the judgment against him by the intervener, their son. Such a decree is without authority of law and void. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803. Judgments take their validity from the action of the court on existing facta and not from what may happen in the future after the court has rendered its judgment. Brotherhood of Locomotive Firemen and Enginemen v. Simmons, 190 Ark. 480, 79 S. W. 2d 419.
This is not to say that appellee has no right of recovery against the senior DeLaughters, either in this action or a subsequent one. The void contingent judgment should be reversed, however, and the cause remanded for further proceedings. In all other respects I concur with the majority.
I am authorized to state that George Rose Smith, J., joins in this dissent.