Beattie v. McKinney

• Decision Date: 25 June 1923
• Docket Number: 78
• Citation: 254 S.W. 338,160 Ark. 81
• Parties: BEATTIE v. MCKINNEY
• Court: Arkansas Supreme Court

254 S.W. 338

160 Ark. 81

BEATTIE v. MCKINNEY

No. 78

Supreme Court of Arkansas

June 25, 1923

Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor affirmed.

Decree affirmed.

C W. Norton, for appellant.

The court erred in not dismissing suit for want of jurisdiction. It was for partition and the lands claimed to be held adversely. Great preponderance of the testimony shows a verbal gift of the lands to her son, Geo. A. C. Beattie, by the mother, and his assuming possession thereof in 1886 prior to execution of her will in 1887, and the chancellor's finding is clearly against the preponderance of the testimony. Appellants have had possession of and held adversely the lands since 1892. 30 Ark. 598; 49 Ark. 266; 2 C. J. 67; 1 R. C. L. Adverse Possession, §§ 8 and 10; 99 N.W. 1027; 1 Am. & Eng. Enc. of Law, 827; 40 Ark. 243; 30 Ark. 655; 92 Ark. 321. Appellee's claim is barred by laches.

L P. Berry and R. V. Wheeler, for appellee.

The cause was transferred to equity and defenses cognizable in equity were set up, and the court had jurisdiction to dispose of all matters. 99 Ark. 84; 137 S.W. 552; 49 Ark. 75, 4 S.W. 167. The burden to show a parol gift of the lands to appellant was on him, and he failed to discharge it by the required clear and satisfactory evidence. 63 Ark. 100, 37 S.W. 302. The lands were owned in common, and appellant failed to show an adverse holding as against appellee cotenant. His possession was fitful and broken, lacked continuity, and the cases cited are not applicable to the case made here.

OPINION

SMITH, J.

Appellee was the plaintiff below, and for her cause of action alleged that she and the defendant were tenants in common of a tract of land there described. She alleged that she and her brother, G. A. C. Beattie, were the only children and heirs at law of their father, Madison Beattie, and their mother, Martha Beattie, and that her brother, G. A. C. Beattie, died intestate, leaving his children, the defendants, as his sole heirs at law. She alleged her ownership of an undivided half interest in said lands, and that the defendants owned the other half, and she prayed that partition be made.

Defendants denied that plaintiff owned any interest in the land, and alleged the facts to be that Madison Beattie and his wife, Martha, were the owners of said lands as tenants by the entirety; that Madison Beattie died in 1885, and his wife took the whole title as surviving tenant, and that on the ... day of..., 189..., the said Martha Beattie made a verbal gift of said lands to her son, G. A. C. Beattie, and placed him in possession thereof, and that he, claiming under such gift, and in reliance on it, entered upon said lands, cleared them, and made valuable improvements thereon. That plaintiff was advised of the gift, and permitted her brother to assume the burden of taxes and to improve the same, and defendants pleaded both limitations and laches.

Mrs. McKinney, the appellee, testified that she knew her brother was paying the taxes in his own name, and that he had sold some timber, and had cleared a portion of the land, but she assumed he was doing so for their joint benefit, and in a conversation with her brother he told her that he knew she owned an undivided half interest in the land, and that if she would pay him one-half the cost of the improvements and the taxes they would divide the land, and that she intended to make this payment, but did not press the matter, as she had confidence in her brother, and that one of the conversations with him occurred in March or April, 1918, and later he called at her home in Virginia, where they both resided, and told her that he hoped she did not think he would try to hold individually property which they had inherited from their mother. She further testified that her brother's health failed, and he died before the matter was adjusted, and that after the death of her brother she discussed the matter with her nephew, the defendant, W. M. Beattie, who had charge of the lands of his father, and he told her the equities would be adjusted and the land divided, but he failed to take any action in the matter, and finally denied that she owned any interest in the land, whereupon she brought this suit.

Mrs. McKinney's son, Chas. F. McKinney, a man thirty-six years old, substantially corroborated his mother.

W. M. Beattie testified that he removed to Crittenden County, where the land is situated, in 1906, and had charge of his father's Arkansas lands for sixteen years. That his grandfather died in 1885, and his grandmother in 1897, and his father in 1919. That his grandfather disposed of his estate by his will and devised to his son, G. A. C. Beattie, his lands in Arkansas, and after his grandfather's death his grandmother gave the land in litigation to his father, and directed him to put the land on his tax list, and that his father did so, and commenced paying the taxes in the lifetime of his mother, and continued to do so until his death. According to this witness, Mrs. McKinney admitted to him that she had no interest in the lands, but she made a claim to an interest in them because her children insisted that she do so. W. M. Beattie was substantially corroborated by his brother and his sister.

Much testimony was taken on the extent and value of the improvements made by Beattie, and the cause was referred to a master to state an account, but, as no objection is now urged to the master's finding, we make no statement of the facts on those issues.

The decree recites that "at the conclusion of the reading of the testimony the defendants moved the court to dismiss the cause for the want of jurisdiction, which motion was by the court overruled." The ground of the motion was that the suit was one for partition, whereas the possession of the defendants was adverse to the plaintiff.

Except on the question of taxes, etc., the finding was in favor of the plaintiff, and the defendants have appealed.

For the reversal of the judgment it is first insisted that the court was without jurisdiction to order partition of the land, for the reason that it was adversely held by the defendants at the time of the institution of the suit for partition.

The suit was originally brought at law, and the defendants demurred upon the ground that "it is shown in the complaint that defendants were in actual possession." The court sustained the demurrer, and granted time to the plaintiff to amend her complaint, and the cause was then, by agreement of the parties, transferred to the chancery court.

It is of course, well settled that partition cannot be had of lands which are held adversely. Hill v. Cherokee Construction Co., 99 Ark. 84, 137 S.W. 553, and cases there cited. But we think that doctrine has no application here. The ownership of the land by Martha Beattie is admitted, and the plaintiff and her brother were her only heirs. Presumptively, the brother and sister each inherited an undivided half interest from their mother; there was no question about that. The question in this case is whether one of the cotenants acquired the whole title. The answer alleged this to be a fact, and this was the question developed by the testimony and tried by the court. The answer alleged parol gift, among other defenses, and also the defense of laches, and this latter defense is here strongly insisted upon. The plaintiff sought to recover upon her legal title; the defendants resisted recovery by denying plaintiff's title, and by setting up, as one of their defenses, a defense cognizable only in equity, and the jurisdiction of the court does not appear to have been questioned until the case was submitted to the court. There was no motion that the cause be transferred to law, which should have been done, had that request been made; but the motion was that the cause be dismissed. Sledge-Norfleet Co. v....