Burel v. Baker

• Decision Date: 01 February 1909
• Parties: BUREL v. BAKER et al.
• Court: Arkansas Supreme Court

Page 181

116 S.W. 181

BUREL v. BAKER et al.

Supreme Court of Arkansas.

February 1, 1909.

Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor.

Action by Nancy Baker and others against Lizzie Burel. From a decree for plaintiffs, defendant appeals. Modified and affirmed.

W. E. Beloate, for appellant. W. A. Cunningham and H. L. Ponder, for appellees.

McCULLOCH, J.

This case involves the title to a tract of land containing 40 acres, which was owned by L. F. Fletcher, now deceased, who was the father of the plaintiffs. It constituted a part of his homestead which contained 80 acres; the tract in controversy being denominated in the pleadings and evidence as the "south 40." Fletcher mortgaged the whole 80 acres to the defendant, Lizzie Burel, to secure an indebtedness to her of $850, and died without being paid any of the debt, leaving his widow, Alice P. Fletcher, and several infant children. Mrs. Burel instituted a suit in equity against the widow and children to foreclose the mortgage, and obtained a decree of foreclosure, but, before the land could be sold by the commissioner, she discovered that the lands were not correctly described in the mortgage nor the decree, and she then abandoned that decree and instituted another suit in equity to have the mortgage reformed so as to correctly describe the land and to foreclose it. She obtained a decree in that suit giving her the relief for which she prayed, and the land was sold by a commissioner pursuant to the decree. The land was purchased at the sale by Alice P. Fletcher, the widow of L. P. Fletcher, pursuant to an agreement made by her with Mrs. Burel that she should purchase the whole tract and convey the north 40 acres to the latter in satisfaction of the decree. This agreement was carried out by purchase of the land at the sale and conveyance of the north 40 to Mrs. Burel, and Mrs. Fletcher retained the title to the south 40. Subsequently Mrs. Burel instituted still another suit in equity against the widow and children of L. F. Fletcher, setting forth in her complaint the facts hereinbefore recited, and alleging that the sale of the lands under decree was void because the defendants in that suit had not been summoned. She prayed either that the sale be confirmed or that her mortgage be corrected and foreclosed as in the former suit. The court in that suit rendered a decree vesting the title to the north 40 acres in Mrs. Burel (then Mrs. Kershner), and confirmed the title to the south 40 acres in said Alice P. Fletcher "as trustee for her said minors, subject to the dower and homestead right of the widow." Mrs. Fletcher afterwards executed a deed to one Rushton, purporting to convey said south 40 acres to him. Rushton conveyed it to Kershner, the defendant's husband, and he conveyed it to defendant.

The present action was instituted at law by the children of L. F. Fletcher against the defendant, Mrs. Burel, to recover possession of said south 40-acre tract of land, and was afterwards transferred to the chancery court. They set forth the foregoing facts in the complaint, and also allege that they are all infants under age, except the plaintiff Nancy Baker, who is of full age and married. The defendant answered the complaint, asserting title to the land in controversy under the sale by commissioner in chancery to Mrs. Fletcher and her conveyance to Rushton. She also claimed title under a sale to Mr. Beloate by the collector for taxes and his conveyance of the land to her. She also alleged that in the foreclosure suit all of the plaintiffs in the present suit were summoned as defendants, and that the foreclosure sale was valid. The plaintiffs then filed a supplemental plea, offering to redeem the land from the tax sale, and made a tender of the amount of money necessary to redeem. We pretermit any discussion of the question of fact whether or not the plaintiffs were summoned in the foreclosure suit, or whether as a matter of law the defendant, Mrs. Burel, is...