Covington v. Berry

• Decision Date: 29 July 1905
• Citation: 88 S.W. 1005,76 Ark. 460
• Parties: COVINGTON v. BERRY
• Court: Arkansas Supreme Court

88 S.W. 1005

76 Ark. 460

COVINGTON v. BERRY

Supreme Court of Arkansas

July 29, 1905

Appeal from Lee Circuit Court; HANCE N. HUTTON, Judge; reversed.

STATEMENT BY THE COURT.

Ed Berry brought an action of ejectment against Lucy Covington to recover six and one-half acres of land in St. Francis County. This land was a part of the east half of the southeast quarter of section 30, township 5 north, range 4 east, that was east of the St. Francis River. The Choctaw Railroad crosses this tract, and the six and one-half acres in controversy lay north of the railroad. The plaintiff claimed to be the owner of that part of the east one-half of the southeast quarter of section 30 that lay east of the river, containing 60.30 acres, which included the six and one-half acres in controversy. The defendant pleaded the statute of limitations of seven years, and also denied that plaintiff was the owner of the 60.30 acres east of the river. The first action brought by the plaintiff against defendant to recover the land was begun in August, 1898. The chain of title set up in this action was as follows:

Conveyance from the United States to the State of Arkansas by the swamp land act of 1850; from the State to R. C. Brinkley in 1853 from R. C. Brinkley to Hugh McMurray in 1872; that subsequently in 1898 the heirs of Brinkley executed a deed to McMurray, correcting a mistake made in a former deed of R. C Brinkley, and that A. E. Ketchum, the only heir of McMurray afterwards conveyed the land to plaintiff Berry. A nonsuit was taken in the action in March, 1900, and a new action commenced in August, 1900. The chain of title in this new action is a grant from the United States to the State, from the State to R. C. Brinkley, and conveyances from the heirs of R. C. Brinkley to plaintiff Berry, dated January 13, 1898 and June 29, 1899.

The complaint also set out that he was the owner of the land by virtue of a sale under a decree of court for nonpayment of levee taxes, and also by purchase at a sale for nonpayment of State and county taxes.

On the trial objection was made to the introduction of these tax deeds on the ground that they were void on account of an insufficient description of the land, but the objection was overruled.

The court permitted the plaintiff to prove the conveyance from the State to R. C. Brinkley by a transcript of the record of the State Land Office, without any showing that the patent from the State could not be produced. The court, among other instructions given at request of plaintiff, told the jury, in substance, that they should find for the plaintiff unless there was seven years continuous adverse possession by the defendant before August 22, 1898, the time of the bringing of the first suit, and refused the request of the defendant that the statute of limitations did not stop until the 25th of August, 1900, the date of the bringing of the last action.

There was a verdict and judgment in favor of the plaintiff, and defendant appealed.

Judgment reversed and cause remanded.

W. Gorman and N.W. Norton, for appellee.

It was error to permit the introduction of the certificate of the Commissioner of State Lands to show a transfer from the State to R. C. Brinkley, without laying a proper foundation therefor by showing the loss of the deed, 47 Ark. 297; 57 Ark. 153; S. C. 50 S.W. 1088, 1089. The description of the 60.30 acres was too vague, and the deed conveyed nothing thereby. 34 Ark. 534; 30 Ark. 640; 41 Ark. 495; 48 Ark. 419; 60 Ark. 487; 69 Ark. 357; 56 Ark. 178. It was error to rule that the statute ceased to run in favor of the defendant in August, 1898. 7 Pet. 202; 6 Pet. 130; 95 F. 305; 59 Ark. 441.

John Gatling, for appellee.

There was no error in the admission in evidence of the certificate of the Commissioner of State Lands. 57 Ark. 153. The admissibility of the document offered here should not be questioned by the appellant, occupying as she does the position of one holding no paper title, and in possession without right. 41 Ark. 465; 36 Ark. 471. The description in the deed is sufficiently certain. Appellee had a right to offer the deeds in evidence, and to amend his pleading accordingly. 9 So. 74; 17 So. 41; 101 F. 91.

OPINION

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

This is an appeal by the defendant from a judgment rendered against her in an action of ejectment for the recovery of six and one-half acres of land. There had been a prior action for the same land, which was commenced on the 22nd of August, 1898, and in which a nonsuit was taken in March, 1900. Afterwards the present action was begun on the 25th of August, 1900. In the first action plaintiff relied on a conveyance from Brinkley to McMurray, and one from the heir of McMurray to plaintiff. After the commencement of the first action plaintiff procured deeds from the heirs of Brinkley to himself. In the second action he does not refer to the conveyance from Brinkley to McMurray, but relies on the conveyance from the heirs of Brinkley to himself. Defendant pleaded the statute of limitations, and her counsel contend that the two suits above referred to were based on different causes of action, and that the statute of limitations did not stop running until the commencement of the last action. The mere fact that plaintiff did not properly set out his chain of title in one or the other of these suits would, we think on this point be immaterial if he was in fact the owner of, and seeking to sustain, the same title in each action. But the contention of defendant is sound if plaintiff in the second action is seeking to maintain a title acquired subsequent to the commencement of the first action, for such title gave plaintiff a new cause of action, and the fact that plaintiff brought a former action against defendant did not stop the statute from running against plaintiff on a cause of action acquired after the commencement of such suit. That is to say, if plaintiff held the title to this land, or any part of it, at the time of the commencement of the first action to recover the land, the statute of limitations stopped, as to the land he then owned, on the bringing of such action; but if he acquired title to it, or to part...