Bouldin v. Jennings

• Decision Date: 01 November 1909
• Citation: 122 S.W. 639
• Parties: BOULDIN et al. v. JENNINGS.
• Court: Arkansas Supreme Court

122 S.W. 639

BOULDIN et al. v. JENNINGS.

Supreme Court of Arkansas.

November 1, 1909.

Appeal from Circuit Court, Lawrence County; Frederick D. Fulkerson, Judge.

Action by Annie Bouldin and others against W. S. Jennings. A verdict was directed for defendant, and plaintiffs appeal. Reversed and remanded.

Beloate & Lomax, for appellants. W. A. Cunningham and J. M. Beakley, for appellee.

BATTLE, J.

On the 5th of October, 1906, Annie Bouldin and others brought an action against W. S. Jennings to recover the possession of "all that part of the N. W. ¼ of the N. E. ¼ of section 34 in township 17 north, and in range 1 E., lying east of Village creek, the bed or channel of which being the west boundary line." They state in their complaint substantially as follows: James Tillman died on the 26th day of May, 1895, leaving Annie Bouldin his widow, and Dolly Bagley, then of the age of 17, Oscar Tillman, then of the age of 15, and Effie Tillman, then of the age of 3, his only heirs; they being his children. He died seised and possessed of the land described, occupying the same as his homestead. B. A. Morris was appointed administrator of his estate, and prior to the 18th day of July, 1899, paid all the probated claims against the same, and thereafter presented a petition to the Lawrence probate court for the sale of certain lands, describing them as follows: "Part of the southwest fourth of the northeast fourth sec. 34, Tp. 17 N., R. 1 E.," — alleging that debts probated against the estate remained unpaid. On the 18th day of July, 1899, the probate court made the order of sale, describing the lands as described in the petition. A copy of the order is made an exhibit to the complaint. The land as described was sold by the administrator, and he made report of the sale to the probate court, which was approved. The order approving is made an exhibit to the complaint. Plaintiffs further stated "that said defendant, realizing that his said deed was void for uncertainty in the description, and that same created no color of title, attempted to get the Lawrence probate court for the Eastern district to grant him an order nunc pro tunc correcting the description in said order of sale in his deed, and obtained another order." A copy of the order is filed as exhibit to the complaint.

They asked for "judgment against the defendant for the possession of the land, for cost, and all other relief."

The first exhibit shows that the court ordered "part of N. W. ¼ of the N. E. ¼ of Sec. 34, township 17, R. 1 E.," to be sold.

The second exhibit shows that the administrator reported to the court that he had sold "part of N. W. ¼ of the N. E. ¼ of Sec. 34, township 17 North, Range 1 East."

The third exhibit is as follows:

"In the Matter of the Estate of James C. Tillman, Deceased.

"Comes W. S. Jennings, and, petitioning the court, would respectfully state: That at the July, 1899, term of this court, an order was made upon the petition of B. A. Morris, administrator of the estate of James C. Tillman, deceased, for the sale of certain lands belonging to said estate for the purpose of paying debts probated against said estate. That on the 19th day of August, 1899, said B. A. Morris, as such administrator, in accordance with the order of said court, offered said lands for sale, and this petitioner became the purchaser of the same for the price and sum of $450, which was more than two-thirds of the appraised value of same. That at the January term, 1901, of this court, the said administrator reported the said sale to this court, and the same was approved and in all things confirmed, and the said administrator directed to make a deed to this petitioner upon the payment of the purchase money.

"That on the 26th day of January, 1901, the said administrator in obedience to said order executed to this petitioner his deed, which is exhibited herewith. That, in the order of sale, the sale report of the same and the deed made to this petitioner the said land was described as part of the Northwest ¼ of section 34 in township 17 N. range 1 E., when the proper description of said tract of land intended to be conveyed was as follows, to wit:

"Beginning at a point on the north boundary line of Sec. 34, Tp. 17 N., R. 1 E., where the channel of Village creek crosses the said line; thence down said channel to within 15 feet of the upper side of the old bridge; thence west, parallel with said bridge, to a point where said line crosses the north boundary line of section 34; thence east to the place of beginning; and all that part of the N. W. ¼ of the N. E. of Sec. 34, Tp. 17 N., R. 1 E., lying east of Village creek excepting the following: Beginning at a point S. 88 degrees E., 2.40 chains, from the quarter section corner and the N. line of Sec. 34, 17, 1 E.; thence S. 45½ degrees E., 12¼ chains; thence N. 29 degrees E., 9.15 chains; thence 88 degrees W., 13.30 chains to place of beginning, said except tract having been deeded to the town of Walnut Ridge, Ark.

"That since making the said deed B. A. Morris has been discharged as administrator of the estate of James C. Tillman, deceased, and on the 10th of February, 1903, J. N. Beakley was appointed administrator of the same by the clerk of this court, which appointment was by the court, at its present term, approved and in all things confirmed wherefore the premises being seen, your petitioner respectfully asks that an order be made approving the sale of the land above described to this petitioner, and that the said J. N. Beakley be directed to make deed to this petitioner for the said land as properly described and for all other proper relief.

"The within petition being this day examined, and the court being satisfied from the papers filed and the former orders of this court and from the testimony of witnesses produced that the sale of the property was regularly made, according to the law and the order of this court, but that the description of said land was not full enough.

"It is therefore considered and ordered by the court that the sale of the said lands, as set out in the correct description, be and the same is hereby approved and in all things confirmed, and J. N. Beakley, as administrator in succession, is directed to make a deed to said purchaser with proper recitals and...