Flanagan v. Ray

• Decision Date: 04 July 1921
• Docket Number: 79
• Citation: 232 S.W. 600,149 Ark. 411
• Parties: FLANAGAN v. RAY
• Court: Arkansas Supreme Court

232 S.W. 600

149 Ark. 411

FLANAGAN v. RAY

No. 79

Supreme Court of Arkansas

July 4, 1921

Appeal from Sebastian Chancery Court, Greenwood District; J. V Bourland, Chancellor; affirmed.

Decree affirmed.

J. E London, for appellant.

1. It was error to transfer the cause to chancery. Plaintiff (appellant) set up a title in ejectment. No equitable defense was set up.

2. It was error to refuse to make McFarlane a party to the action. Defendant made the issue turn upon transactions with McFarlane, who was an indispensable party. See 49 Ark. 87; Kirby's Dig., § 600; 74 Ark. 414; 86 Ark. 304.

3. The judgment relied on is invalid for failure to show that defendant therein (appellant) was summoned or was present.

4. The judgment relied on was satisfied. The court erred in holding that the matter was res judicata.

5. We ask that defendant be required to pay $ 500 with interest and restored to his home, or that the cause be transferred to a master with instructions to state an account, making McFarlane a party, and to treat the defendants as mortgagees in possession.

Appellee pro se.

1. Appellant waived objection to the transfer to equity. 83 Ark. 1; 80 Ark. 65. An action at law may be transferred to equity because of the equitable nature of the defense. 91 Ark. 464; Ward v. Blythe, 92 Ark. 208. No exception was saved to the order of transfer.

2. The demurrer to the complaint should have been sustained, as the description of the land was insufficient. 80 Ark. 458. Also because the complaint shows defendant's adverse possession for the past eight years. 46 Ark. 438; 39 Ark. 158. Under Crawford & Moses' Digest, § 6946, the action to set aside a judicial sale should be brought within five years.

3. The plea of res judicata was properly sustained. 79 Ark. 210.

OPINION

WOOD, J.

This action was instituted by the appellant against the appellee in the Sebastian Circuit Court. The appellant alleged that he was the owner and entitled to the possession of the west part of section 30, township 8 north, range 30 west, in Sebastian County, Arkansas, containing 37 2/3 acres. Appellant deraigned title through Abram Smith and his wife, who acquired title through Albert Schular. The deed, which was exhibited with his complaint, described the land as follows: West part of the northwest fractional quarter of section 30, township 8 north, range 30 west, containing 37.94 acres, more or less. Appellant alleged that the appellee was in the wrongful possession of the land, and had been for more than four years, to appellant's damage in the sum of $ 500.00. The prayer was for possession and damages in that sum.

The appellee moved to transfer the cause to the chancery court. He alleged in his motion that the present suit was the third for the determination of the title, and the right to possession of the land described in appellant's complaint; that the two former suits were between the appellant and R. W. McFarlane; that the appellee deraigned title through McFarlane, who acquired title through a decree and sale of the land by the chancery court.

The appellant replied to the motion to transfer and alleged that this was an action in ejectment, and that the appellant must recover upon the strength of his own title, and that the motion to transfer does not set out any equitable defense; that the allegation that the suit had been before determined in the chancery court, if true, would not entitle the appellee to attack a decree or judgment of the chancery court in this action; that the issue here raised by the plaintiff's complaint was purely one at law, which, on the issues of fact, called for the intervention of a jury. There is no record entry showing that the cause was formally transferred to the chancery court; but there is an entry showing that a "reply and cross complaint" was filed in the chancery court, and the cause proceeded to a decree in that court, from which comes this appeal.

We must presume, therefore, that the cause was duly transferred to the chancery court, and, in the absence of any showing in this record that the appellant excepted to the ruling of the court in transferring the cause, we must assume that he waived any objections that he might have to such transfer. The so-called "reply and cross complaint," which in reality is but an amended complaint, alleged in substance that the appellant executed a note to John H. Holland for the sum of $ 500; that a mortgage on the land was prepared and given appellant to execute, but it is not true that the mortgage executed by appellant was on the land involved in this suit, as the record will show; that of the proceedings had in the chancery court appellant's information is of the most meager kind, but he is informed that a judgment was entered against him in favor of R. W. McFarlane; that an execution was issued and levied on the lands described in the decree, which was the east part of the northwest fractional quarter of section 30, township 8 north, range 30 west, in Sebastian County; that these lands were sold; that a writ of possession was issued by the clerk without notice to the appellant and without an order of the court, and that under this writ of possession McFarlane wrongfully took possession, not of the land above described in the decree, but of the west part of the northwest fractional quarter of section 30, township 8 north, range 30 west, in Sebastian County, and also of the southeast quarter of northwest quarter of section 29, township 8 north, range 30 west, in Sebastian County; that McFarlane took possession of the lands and sold them to one Pittman and Pittman sold them to the appellee, Ray. Appellant reiterated his source of title to the first-named tract, and also deraigned title to the last-named tract through a deed from F. E. Pence and wife. Appellant alleged that the decree and conveyance thereunder did not have the effect of divesting appellant of title to the lands. The appellant then alleged that the land had been in the wrongful possession of the appellee and those under whom he claimed for the past eight years; that the rental value on the land in section 30 was $ 150 per year, or a total of $ 1,200 for the eight years, and the rental value of the land in section 29 was $ 100 per year, or $ 800 for the eight years. The appellant concluded his "reply and cross complaint" with a prayer for an accounting, and that the appellee be treated as a mortgagee in possession; that appellant have judgment for possession, for damages, and that the commissioner's deed be cancelled as a cloud on his title. The appellant then asked that R. W. McFarlane be made a party defendant.

The appellee filed a general demurrer to the effect that the complaint did not state facts sufficient to constitute a cause of action, and also an answer. In his answer he admitted that McFarlane was in possession of the land in controversy, and had sold the same to Pittman, and that Pittman sold the same to the appellee. He alleged that he had been in peaceable, notorious, continuous and adverse possession of the land described in the appellant's complaint for more than eight years, and had paid the taxes thereon. He denied all the other allegations of the complaint and set up that he was a bona fide purchaser of the lands under the decree of the chancery court of Sebastian County, which had never been appealed from; that the appellee filed a bill of review seeking to set aside the decree...