Eagle v. Franklin
| Decision Date | 15 July 1903 |
| Citation | 75 S.W. 1093 |
| Parties | EAGLE v. FRANKLIN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Nevada County, in Chancery; Joel D. Conway, Chancellor.
Action by Barbara A. Franklin against John L. Eagle. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Barbara Franklin brought this action in the circuit court to obtain a decree for partition of certain lands described in the complaint, and which the complaint alleged were owned by the plaintiff and defendant as tenants in common. The answer of the defendant set up that he was in the actual possession of the land under claim of title to the whole tract. From the facts stated in the pleadings in the complaint, it appears that the land in question was purchased from the state by Julius Eagle, brother of the plaintiff and defendant. This brother afterwards died, leaving surviving him a mother and the parties to this suit as his heirs at law. The mother took possession of the land, and afterwards sold and conveyed it by warranty deed for valuable consideration to the defendant in this action. The defendant, in his answer, alleges that he is in actual possession of the land, holding it adversely under the deed from his mother, and that he is the sole owner of the land. The court sustained a demurrer to this answer, and gave judgment in favor of plaintiff, and defendant appealed.
C. C. Hamby, for appellant. Geo. R. Hanie, for appellee.
RIDDICK, J. (after stating the facts).
To entitle one to have partition of lands, he must not only have title, but must have possession, either actual or constructive, of the lands which he asks to have partitioned. If there be no dispute about the title, the possession of one tenant in common will be deemed for the benefit of all his co-tenants; but, if the allegations of the answer in this case are true, the defendant is in the exclusive possession of the premises which plaintiff seeks to have partitioned, holding them adversely under color of title. The answer, therefore, if we follow our former decisions, sets up a good defense to the action of partition, and we are of the opinion that the court erred in sustaining a demurrer to it. Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Criscoe v. Hambrick, 47 Ark. 235, 1 S. W. 150; Moore v. Gordon, 44 Ark. 334; London v. Overby, 40 Ark. 155. The adverse possession of the defendant, if proved, will defeat the action for partition, but the court may, if it sees proper to do so, retain the cause on its docket, and allow plaintiff time in which to establish her title by an action at law. London v. Overby, 40 Ark. 155.
Reversed and remanded, with an order to overrule the demurrer and for further proceedings.
This is a bill in chancery to partition certain lands between the heirs at law of Julius A. Eagle, deceased, including a claim of $150 rents, in the hands of one of them, who is in possession, to wit, the appellant, John L. Eagle. The complaint states that on or about the ____ day of ____, 18__, one Jno. A. Eagle and one Barbara ____ were lawfully married, and that the fruits of this wedlock were five children, to wit, Julius A. Eagle, Don. M. Eagle, John L. Eagle, Joseph Eagle, and the plaintiff, Barbara A. Franklin, née Eagle; that the said Julius A. Eagle purchased from the state of Arkansas the northeast quarter of section 36, in township 11 south, of range 21 west, lying and being situate in Nevada county, Ark., and received his deed from the commissioner of state lands, dated 13th day of August, 1884. That the said Julius A. Eagle departed this life on the 26th day of August, 1890, without issue, unmarried, and intestate, the father, the said John A. Eagle, having previously departed this life, to wit, on the 26th day of October, 1886; that the lands, being a new acquisition by the said Julius A. Eagle, ascended to the mother, Barbara A. Eagle, to be held by her for and during her natural life, by the law of descent and distribution; that on the 17th day of September, 1898, the said Barbara A. Eagle, the mother, departed this life, leaving the parties hereto. D. M. Eagle, John L. Eagle, and Barbara A. Franklin, the only surviving heirs of the said Julius A. Eagle, the said Joseph Eagle having previously died without issue, unmarried, and intestate. The prayer of the petition was that a partition of said lands be made between these remaining heirs, and that John L. Eagle account for rents as aforesaid, he being in possession. To the petition the said John L. Eagle made answer, setting up that he had purchased a title in fee from the mother, Barbara A. Eagle, to the land in question, in her lifetime, to wit, on the 21st day of June, 1895, and received his deed of that date from her accordingly. And he further alleged that he claimed under said deed, and not as an heir of his brother Julius A. Eagle, deceased. He also denied that the court trying the cause had jurisdiction thereof, or to partition said lands. But in his answer he fails to controvert the averment of the complaint that the mother, under whom he claimed, held under her deceased son by inheritance; and thus the statement of that fact was also admitted to be true, and the issue thus made was only a conclusion of law, to wit, whether the mother held an estate in fee, or only a life estate, for her deed to him carried no greater estate than she held. This was the sole question raised by the demurrer of plaintiff to defendant's answer — a question of law, of course, which could only be raised by the demurrer, or some other plea in the nature of a demurrer. "Neither presumption of law, nor matter of which judicial notice is taken, need be stated in a pleading." Sand. & H. Dig. § 5751.
Julius A. Eagle died on the 26th August, 1890, and the father...
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