Anders v. Roark

• Decision Date: 12 May 1913
• Citation: 156 S.W. 1018,108 Ark. 248
• Parties: ANDERS v. ROARK
• Court: Arkansas Supreme Court

156 S.W. 1018

108 Ark. 248

ANDERS v. ROARK

Supreme Court of Arkansas

May 12, 1913

Appeal from Bradley Chancery Court; Z. T. Wood, Chancellor reversed.

STATEMENT BY THE COURT.

Appellants brought suit in ejectment for the possession of an undivided interest in certain lands, alleged to be unlawfully held by appellees and for damages for timber taken therefrom.

The complaint alleges that E. R. Anders is a married woman and the wife of her co-plaintiff, to whom she was married in 1867; that she is the daughter of Jesse and Nancy Goodman all of whose children died in infancy, except appellant and her brother, Jesse Goodman, Jr., and that her father became the owner of the lands under the homestead laws and patent issued in the year 1852. That he built a dwelling house upon the land and cleared and cultivated the same until his death in 1855; that his widow continued her residence upon the land with her children until her marriage to Bennett Cooper in the year 1858, and with him continued to live thereon until her death in the year 1876. That her husband Bennett Cooper, was left in the possession of the lands until 1889, when he attempted to convey them by warranty deed to W. H. Wheeler on December 26, 1888. That Wheeler conveyed the lands to Culbreath in March, 1891, who conveyed them to the defendants on May 10, 1907. That the plaintiffs are the sole surviving heirs of Jesse Goodman, Sr., and entitled to one-half interest in the lands and homestead, J. Goodman, Jr., being barred by laches and limitations and that the coverture of E R. Anders prevented the running of the statute of limitations against her, and she received no gifts or advances from her father's estate, which could be charged to her as her interest therein.

The answer admits the allegations of the complaint, except it denies that the appellants are the owners of the lands and alleges that E. R. Anders married in the year 1867, "and that she has lived without asserting any claims to the lands in suit for 43 years since that date and to the institution of the suit and has knowingly permitted divers and various persons to purchase, hold, improve, cultivate and pay taxes on the land and that each holder has asserted hostile claims to the plaintiff; that defendants and their grantors have for more than forty years had the exclusive possession of the premises, holding the same peaceably, continuously and openly, claiming to be the owners of the fee; that defendants' claim and hold the said lands as innocent purchasers, and by adverse possession. That plaintiffs are guilty of such laches as ought to estop them from a recovery of the premises."

The plaintiff filed a demurrer to the answer, which was overruled and the cause transferred to equity over their objections.

The testimony shows the facts to be as alleged in the complaint and E. R. Anders in explanation of her long acquiescence in the possession of the lands by others said it was because she had no knowledge that she was entitled to them until she raised a boy large enough to look into the matter. She lived near the lands in controversy and knew the improvements were being made upon them and made no objections thereto.

The testimony does not disclose any conduct upon her part calculated to induce the appellees or those under whom they claim, to purchase the land, although T. D. Roark stated that during the time he was engaged in making the improvements thereon that he heard Mrs. Anders say her father died and she never got anything out of the estate, but she never seemed to have any claim, saw them making the improvements, but did not forbid it being done. It was also shown that appellees had made about $ 1,500 worth of improvements since their purchase of the lands in 1891.

The court found that the plaintiffs, by neglect to assert their rights for a period of forty years and their failure to pay taxes on the lands abandoned all rights thereto and are estopped by laches and their conduct from asserting title to the land and confirmed defendant's title and dismissed the complaint at plaintiff's cost.

From this judgment this appeal comes.

Decree reversed and cause remanded.

B. L Herring, for appellants.

1. The coverture of Mrs. Anders exempted her from the operation of the statute of limitations and from the effects of adverse possession. 73 Ark. 221, 226.

2. Appellants are not chargeable with laches, because of mere delay. Moreover, laches could not properly be pleaded in this case, beng an ejectment suit wherein the relief sought by appellant is strictly cognizable at law and not in equity. The doctrine of laches has no application. 100 Ark. 399, 403 140 S.W. 278-9; 94 Ark. 122; 62 Ark. 316.

Poole & Speer, John E. Bradley and R. W. Baxter, for appellees.

1. The evidence shows a clear case of laches and appellants are estopped. 55 Ark. 92, 95; 81 Ark. 352; Id. 432; 90 Ark. 430; 93 Ark. 298; 83 Ark. 385; 101 Ark. 234; Bisp. Prin. Eq. (4 ed.), § 287; 12 Am. & Eng. Enc. of L. (1 ed.), 533, 534; 1 Johns. Cas. (N. Y.) 436. See also, 42 Ark. 300; 39 Ark. 131; 33 Ark. 468; 87 Ark. 232; 24 Ark. 399; 64 Ark. 345; 78 N.Y. 159; 2 Pomeroy, Eq. Jur. (2 ed.), § 779; 96 U.S. 855.

2. When a defendant is sued at law, he must present all his defenses, both legal and equitable, and if any of them are exclusively cognizable in a court of chancery, it is his right to have the case transferred to the chancery court. Sandels & Hill's Dig., § 5619; Kirby's Dig., §§ 6098, 5995; 76 S.W. 1063; 70 Ark. 505; 71 Ark. 484; 57 Ark. 500; 85 Ark. 25.

OPINION

WOOD, J., (after stating the facts).

There is no dispute, whatever, as to the facts in this case, except relative to the conduct of appellant, Mrs. Anders, during the time of the making of the improvements upon the land in controversy by appellees, and there is no testimony tending to show any conduct upon her part that would have induced appellees or their grantors to purchase said lands, or mislead them to think that she had no claim thereto, except the fact that she lived long in the locality near them without...