Cullins v. Webb

• Decision Date: 05 June 1944
• Docket Number: 4-7387
• Citation: 180 S.W.2d 835,207 Ark. 407
• Parties: Cullins v. Webb
• Court: Arkansas Supreme Court

180 S.W.2d 835

207 Ark. 407

Cullins v. Webb

No. 4-7387

Supreme Court of Arkansas

June 5, 1944

Opinion delivered.

Appeal from Sebastian Chancery Court, Fort Smith District; C. M Wofford, Chancellor.

Reversed.

Booker & Booker and Elmer Schoggen, for appellant.

Warner & Warner, for appellee.

OPINION

McFaddin Justice.

This appeal raises the question of the effectiveness of limitations and laches when pleaded by a demurrer to the complaint.

On September 8, 1943, appellant filed this suit in the Sebastian chancery court against Nancy J. Webb and the appellee, Viola Earle Rigney. The amended and substituted complaint, omitting caption and prayer, was as follows:

"Comes the plaintiff and for her amended and substituted complaint, herein, states that she is the child and sole surviving heir-at-law of James G. Webb, deceased, by his first marriage and that the defendant, Nancy J. Webb, is his widow, and stepmother of the plaintiff.

"That on April 7, 1902, James G. Webb and his first wife, mother of plaintiff, sold a parcel of real estate in Fort Smith, Arkansas, same being their homestead and that of plaintiff, and invested the proceeds of said sale in the purchase of lot three (3) in block sixty-three (63) of the City of Fort Smith, Arkansas, the deed having been executed to James G. Webb and his heirs, and recorded Deed Record 'MM,' at page 415.

"That shortly thereafter the first wife of James G. Webb, and mother of plaintiff, died, and James G. Webb later, intermarried with the defendant, Nancy J. Webb.

"Plaintiff states that on May 21, 1928, a conveyance of the said property was made to one Frances Kemp, and that said deed is recorded in Deed Record 49, page 540, and that on the same date Frances Kemp executed a deed to James G. Webb and Nancy J. Webb, his wife, thereby purportedly vesting an estate by the entirety in them. The later deed is shown of record in Book 31, page 499.

"Plaintiff states that James G. Webb died on or about July 18, 1928, and that on March 17, 1939, the defendant, Nancy J. Webb, as his widow, attempted to convey the property aforesaid to her co-defendant, Viola Earle Rigney, as is shown by a warranty deed recorded in Book 68, page 640.

"Plaintiff states that at the time the defendant, Nancy J. Webb, induced the said James G. Webb to transfer the title in said property so as to attempt to create an estate by the entirety, the said James G. Webb was, by reason of age, senility, feeble-mindedness and the undue influence of his wife over him, lacking in his capacity to understand what he was doing or the effect of his acts, so that he was entirely lacking in capacity to make such conveyance; that the defendant paid no consideration for said conveyances, but designedly took advantage of her relationship with James G. Webb, and of his enfeeble mind and intellect, knowing him to be about to die, in an attempt to defraud this plaintiff of her inheritance; and that the deeds executed as a result should be cancelled and set aside.

"Plaintiff states that she resides in Little Rock, Arkansas, and has so resided at all times hereinbefore mentioned, and that she knew nothing of the things and matters herein complained of, until long after they had occurred, and that when she did learn of said fraudulent transactions, she immediately filed her suit in this court."

The prayer was for quieting of title in plaintiff, as sole heir of James G. Webb, and for other relief. No exhibits of any kind were attached to the original complaint, or to the amended and substituted complaint. Nancy J. Webb was constructively summoned and no pleading was filed by her, and no default taken. Violia Earle Rigney filed against the complaint a general demurrer: "That the said amended complaint does not contain facts sufficient to constitute a cause of action." The chancery court sustained the demurrer and dismissed the plaintiff's complaint upon her refusal to plead further; and the plaintiff has brought this appeal.

For reversal, appellant contends: (1) that a complaint which states a cause of action, although defectively, affords no ground of demurrer; (citing Shreve v. Carter, 177 Ark. 815, 8 S.W.2d 443); and (2) that every reasonable inference in favor of the complaint should be made, and if, when so considered, there is a cause of action stated, then the demurrer should be overruled; (citing Claxton v. Kay, 101 Ark. 350, 142 S.W. 517, Ann. Cas. 1913E, 972; McLaughlin v. Hope, 107 Ark. 442, 155 S.W. 910, 47 L. R. A. N. S., 137; Sharpe v. Drainage District, 164 Ark. 306, 261 S.W. 923; and Dillinger v. Pickens, 200 Ark. 218, 138 S.W.2d 388).

On the other hand, for affirmance, appellee claims that the demurrer was properly sustained: "Upon the ground that appellant was barred by limitations and laches"; and appellee cites McGinnis v. Less, 147 Ark. 211, 227 S.W. 398, where this court said:

"Either laches or the statute of limitations may be raised by demurrer in a suit in chancery, where the allegations of the complaint are sufficient to show the existence of these defenses. In such an action these defenses go to the equity of the complaint, and may, therefore, be raised by demurrer."

The test is whether the complaint shows limitations or laches on its face. If it does, then the defenses can be raised by demurrer; otherwise, the defenses should be pleaded by answer and shown by evidence. Since the action of the trial court in sustaining the demurrer is defended on the ground of (1) limitations, and (2) laches, we proceed to consider these points.

James G. Webb made the deed (which led to the entirety estate) in 1928, and died the same year. His widow did not convey the land to appellee until 1939. This suit was instituted in 1943. When did limitations commence to run? If limitations started on the death of James G. Webb then appellant is barred. If it started on the execution of the deed to appellee, then appellant is not barred by limitations.

In Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521, the widow had only a dower right, but by adverse holding she acquired the fee as against the heirs, even though they never had dower assigned to her. We said of her entry on the land: "This entry should be presumed to be permissive, and not in hostility to the heir unless that fact affirmatively appears." In that case, the nature of the adverse holding was shown by evidence. In the case at bar no such adverse holding is alleged in the complaint.

In Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939, the widow, Frances Harmon, occupied the land from 1911 until 1919 under a will which devised her the land in fee simple. After her death the pretermitted children of the husband brought suit against the heirs of the widow; and this court, in holding that limitations did not begin to run against the pretermitted children of the husband until the death of the widow, said: "It was their duty to assign dower to the widow, and the widow's occupancy pending the assignment of dower was not an adverse holding. Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521. Therefore the statute of limitations did not begin to run in favor of the appellants until after the death of their mother, who was the widow of Mack Harmon, deceased."

In Clark v. Wilson, 174 Ark. 669, 297 S.W 1008, this court reviewed a number of cases on this question as to when the holding by the widow is...