Cannon v. Stevens

• Decision Date: 21 December 1908
• Citation: 115 S.W. 388,88 Ark. 610
• Parties: CANNON v. STEVENS
• Court: Arkansas Supreme Court

115 S.W. 388

88 Ark. 610

CANNON v. STEVENS

Supreme Court of Arkansas

December 21, 1908

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

C. F Greenlee, for appellant.

Equity is without jurisdiction of a suit for partition of lands held adversely by another. 27 Ark. 77; Id. 159; 40 Ark 155; 47 Ark. 235; 70 Ark. 432; 71 Ark. 544; 74 Ark. 484; 75 Ark. 6; 72 Ark. 256; Kirby's Digest, § 6518.

H. A Parker, for appellee.

Having acquired jurisdiction of an action on any equitable ground, a court of chancery will retain jurisdiction to settle all matters in controversy. 1 Ark. 31; 1 Crawford's Digest, cols. 638--640; 3 Id. 348; 11 Ark. 349; 31 Ark. 345.

OPINION

MCCULLOCH, J.

The plaintiffs, Annie E. Stevens and others, instituted this suit in chancery against the defendant, Katie Cannon, praying for the partition of a tract of land containing eighty acres. They alleged in their complaint that they were the owners of four-fifths of said land by inheritance from their deceased parent, J. W. Puckett, Jr., who in his lifetime owned said land and was in actual possession thereof, and that the defendant, who had purchased the interest of Mrs. Kerr another one of the heirs, is in possession of the land. They also alleged that the defendant had received the rents of the land for four years, and prayed for accounting thereof and decree for their shares.

The defendant answered, admitting that she was in possession of said lands and alleging that she occupied the same as the homestead of her deceased husband, J. W. Puckett, Jr., who was the owner and in actual possession thereof at the time of his death. She denied that J. W. Puckett, Sr., was ever the owner or in possession of said land. She also demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action, that plaintiffs have an adequate remedy at law, and that they can not maintain the suit for partition because defendant is in adverse possession of the land.

The plaintiffs then filed an amendment to their complaint, alleging, in substance, that the defendant had in her possession a deed to said J. W. Puckett, Sr., showing that he had title to said land; that said Puckett, Sr., was in adverse possession of said land for more than seven years continuously prior to his death; that J. W. Puckett, Jr., up to the time of his death, and the defendant since that time, had occupied the land as co-tenant of plaintiffs, and had never claimed to hold adversely to them until she did so in her answer to this cause, which was done, as they allege, in order to defeat the jurisdiction of the chancery court.

The defendant answered the amendment to the complaint, denying all the allegations thereof and reiterating her claim that she held the lands adversely. No ruling of the court was ever called for on the demurrer to the complaint, and the case was heard on depositions of witnesses, and a final decree was rendered in favor of the plaintiffs, ordering the partition of the land according to the several interests of the parties, as found by the court.

The court found that there were six shares or interests in the land inherited from J. W. Puckett, Sr.; that the share purchased by defendant from one of the heirs of J. W. Puckett, Sr., had passed from her to the purchaser at foreclosure sale to enforce the vendor's lien against defendant, and that the share of J. W. Puckett, Jr., defendant's deceased husband, should be divided, giving defendant one-half thereof as dower and the other half to plaintiffs as collateral heirs of J. W. Puckett, Jr.

The evidence is sufficient to sustain the finding of the court that the land in controversy was owned and occupied by J. W. Puckett, Sr., that it was occupied after his death by J. W. Puckett, Jr., as one of the heirs and as co-tenant of plaintiffs with their permission, and that after the death of J. W. Puckett., Jr., it was previously occupied by the defendant.

The only point urged against the ruling of the court is that the plaintiffs were out of possession and could not sue for partition of the land until they recovered possession in an action at law.

The principle is well settled by repeated decisions of this court that partition can not be had of lands held adversely or the title to which is in dispute. Byers v. Danley, 27 Ark. 77; London v. Overby, 40 Ark. 155; Moore v. Gordon, 44 Ark. 334; Ashley v. Little Rock, 56 Ark. 391, 19 S.W. 1058; Criscoe v. Hambrick, 47 Ark. 235, 1 S.W. 150; Head v. Phillips, 70 Ark. 432, 68 S.W. 878; Eagle v. Franklin, 71 Ark. 544, 75 S.W. 1093.

But constructive possession is sufficient to justify a partition and between co-tenants the possession of one is the possession of all unless there has been an actual ouster or the possession be hostile to the rights of the others. ...