Cottonwood Lumber Co. v. Walker

• Decision Date: 09 December 1912
• Citation: 152 S.W. 1005
• Parties: COTTONWOOD LUMBER CO. v. WALKER.
• Court: Arkansas Supreme Court

152 S.W. 1005

COTTONWOOD LUMBER CO. v. WALKER.

Supreme Court of Arkansas.

December 9, 1912.

Appeal from Circuit Court, Lee County; Hance N. Hutton, Judge.

Action by Mrs. J. J. Walker and others against the Cottonwood Lumber Company. Judgment for defendant, and plaintiff Walker appeals. Reversed in part and rendered.

On November 4, 1904, the appellee and other heirs of Josiah Hawkins brought this suit against appellant to recover the possession of a certain tract of land in Lee county. Josiah Hawkins died in 1890, leaving surviving him the appellee and other children and grandchildren. In their complaint the plaintiffs alleged that their ancestor died intestate, and deraigned title through him from the government. They alleged that defendants were in the unlawful possession of the lands. They set up that appellant claimed title under purchase at a tax sale. They tendered the taxes and prayed judgment for the possession of the land. The defendants answered, denying the allegations of the complaint, and setting up tax title and adverse possession of the lands for more than two years before the commencement of the suit, pleading the two-year statute of limitations. At the April term, 1912, the plaintiffs amended their complaint, setting up that Josiah Hawkins, their ancestor, died testate, having willed his property to appellee, and that she, by virtue of the will, became the owner of the entire interest in the lands claimed. The defendants answered the amended complaint, admitting that Josiah Hawkins died testate, having willed the land in controversy to the appellee, and alleged that they (the defendants) had "been in the open, notorious, exclusive, continuous, visible, and adverse possession of the lands involved in this action for more than eight years next preceding the filing of the amendment to said complaint," and claiming title as alleged in the original answer. In their answer they also asked the court to dismiss the amended complaint for the reason that plaintiffs "did not, prior to the filing of said amendment, make the affidavit of tender of taxes and improvements as required by the statute." The court overruled the motion to dismiss the complaint.

There was an agreed statement of facts and depositions of witnesses, from which the court found in part as follows: "That Josiah Hawkins died in 1890, leaving a will through which and under which Linnie B. Hawkins (now Mrs. J. J. Walker) was devised the lands in controversy. * * * That this action of ejectment was filed in November, 1904, by plaintiffs J. A. Hawkins, Gus Hawkins, Mrs. S. Alma Salmon, Mrs. H. A. Bernard, Mrs. J. J. Walker, Mrs. E. D. Moore, Irby Gibson, and Gertrude Gibson, minors, by H. C. Gibson, their father and regular guardian, who claim title to said lands by inheritance as the sole heirs at law of the said Josiah Hawkins, deceased, who died intestate in 1890. * * * The court further finds that said lands in controversy were at all times unimproved and uninclosed until the ____ day of June, 1903, at which time the defendants took actual possession of said lands, and since said date have held actual, open, notorious, continuous, and adverse possession of said lands, claiming title thereto under the tax deed and deed of mesne conveyance as set forth in defendant's answer. That defendants, etc., have had color of title to said lands under the said several deeds of conveyance hereinbefore referred to, and have, under said color of title, claimed to be the owners of said lands." And the court, in part, declared the law as follows: "(2) The actual possession of the defendants of the lands in controversy does not constitute a bar to this action, under any statute of limitations of this state. (3) Under the terms of the will introduced in evidence, all of the title of said Josiah Hawkins to said lands passed to Linnie B. Hawkins Walker."

The appellants requested the court to declare the law, in part, as follows, which the court refused, to wit: "The court declares the law to be that the amendment to the original complaint made this date by interlineation alleging the ownership of the lands in controversy to be in the plaintiff Linnie B. Hawkins Walker (Mrs. J. J. Walker), to the exclusion of the other plaintiffs, by reason of a devise to her contained in the last will and testament of Josiah Hawkins, who died testate in 1890, constituted a new cause of action on behalf of the said plaintiff, Linnie B. Hawkins Walker (Mrs. J. J. Walker), and the statute of limitations as to the claim set up by the said Linnie B. Hawkins Walker in the complaint as amended was not tolled until this date." The court rendered judgment in favor of the appellee for the possession of the land in controversy, from which judgment appellant duly prosecutes this appeal.

W. W. Hughes, of Forrest City, Danaher & Danaher, of Pine Bluff, and C. E. Daggett, of Marianna, for appellant. H. F. Roleson, of Marianna, for appellee.

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

The allegations of the original complaint showed that appellee and others, the heirs of Josiah Hawkins, deceased, brought this suit as tenants in common, setting up that their ancestor died intestate, leaving them as his heirs, and that as such they inherited the land in controversy. They therefore set up title to the land by descent. The facts alleged in the complaint showed that the appellee was not seeking to recover the entire tract for the benefit of the other tenants in common. We do not decide therefore in this case the question as to whether one tenant in common can maintain ejectment in this state for the benefit of himself and the other tenants in common for the lands owned by them as tenants in common. That question is not raised under the allegations of the original complaint. All the tenants in common join in the suit for lands which they claim by descent. Under our statute of descents and distributions, where lands are owned by tenants in common by descent, they are distributed in equal shares to the tenants in common. Kirby's Digest, § 2636; 29 Cyc. p. 1557.

So far as the individual tenants in common are concerned, the original complaint must be treated as a suit by them to recover their several and individual interests in the land in controversy as tenants in parcenary, or in equal shares. The appellee, Mrs. Walker, was claiming title and the right to recover the possession of only a one-eighth interest, as that was her share of the land in controversy. When the amendment to the complaint was filed, it changed the cause of action entirely as to all the lands except her...