Fox v. Drewry

• Decision Date: 18 April 1896
• Citation: 35 S.W. 533
• Parties: FOX v. DREWRY.
• Court: Arkansas Supreme Court

35 S.W. 533

FOX v. DREWRY.

Supreme Court of Arkansas.

April 18, 1896.

Appeal from circuit court, Searcy county; B. B. Hudgins, Judge.

Action by Sarah E. Fox against Mary J. Drewry. From a judgment for defendant, plaintiff appeals. Reversed.

This is an appeal from a judgment adverse to appellant in a suit in ejectment for the recovery of lands devised to her by the will of her father. Appellant and her husband, who was living at the time of the institution of this suit, and from whom she had not been divorced, conveyed the lands by deed to one McMahan, who conveyed to the appellee. At the date of the said conveyance by the appellant she was under the age of 18 years, and was a married woman. She was therefore incompetent to convey her real estate, being an infant. This suit was begun on the 31st of August, 1891. The date of her conveyance to McMahan was 19th of April, 1875. The date of McMahan's conveyance to the appellee was 13th day of June, 1876. Upon her purchase the appellee took immediate possession, and before the institution of this suit had held the lands for about 17 years, claiming to own them, and had appropriated the rents and profits, acknowledging accountability to no one, and intending to hold for herself only, and adversely to all others. The appellee pleads the seven-years statute of limitations as a bar to the action, and insists also that plaintiff was barred by laches. The evidence shows that for eight years before the institution of this suit the appellant had lived within five miles of this land, knew that appellee was in possession and claimed to own it, and that she had not, prior to the commencement of this suit, made any claim to the land since her conveyance, of which appellee or any one knew; that there were eight acres of land in cultivation when the appellant conveyed, and no additional improvements had been made when this suit was brought. No offer to return purchase money was made by appellant, and the evidence tends to show that her husband received the purchase money, and expended it, before she was 18 years of age, and that she was unable to refund it. No act of ratification by her is shown. She had only refrained from bringing suit to assert her right to the land; had only remained silent and inert.

W. F. Pace, for appellant.

HUGHES, J. (after stating the facts).

At the time the appellant conveyed the land in controversy she was an infant feme covert, and was remaining under the disability of coverture when she commenced this suit. Was she barred by the seven-years statute of limitations or by laches? The statue of limitations in this state allows a married woman three years after she becomes discovert within which to commence her action. Hershy v. Latham, 42 Ark. 307; McKneely v....