Galloway v. Battaglia

• Decision Date: 08 April 1918
• Docket Number: 284
• Citation: 202 S.W. 836,133 Ark. 441
• Parties: GALLOWAY v. BATTAGLIA
• Court: Arkansas Supreme Court

202 S.W. 836

133 Ark. 441

GALLOWAY v. BATTAGLIA

No. 284

Supreme Court of Arkansas

April 8, 1918

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor reversed.

Cause remanded.

Irving Reinberger, for appellant.

1. Martha Mitchell was the life tenant in possession of the lot. Her purchase at tax sale was a mere redemption from the tax sale. 70 Ark. 375.

2. Appellant was not guilty of laches. She is seeking no equitable relief but sets up a legal title. She is not barred by limitation, being a married woman. 70 Ark. 371; 67 Id. 320; 108 Id. 248; 100 Id. 399.

3. There was no duty or necessity to resort to legal or equitable remedies until some one threatened to destroy or impair her rights. 70 Ark. 256; 88 Id. 404.

4. Laches was no defense, as she was only asserting a legal right. 94 Ark. 122; 96 Id. 541.

5. Appellees were not injured by appellant not filing her claim earlier, but if there was injury it was after they had knowledge of her interest. Any improvements made were at their peril. 126 Ark. 93.

6. She was not served with process and had no knowledge of the suit. 34 Ark. 391.

7. All improvements were made after appellees had purchased and had knowledge of her rights. They were not made in good faith without knowledge of an outstanding title. 67 Ark. 189; 89 Id. 323.

Taylor Jones & Taylor, for appellees.

1. The foreclosure sale in Hunn v. Mitchell was a judicial sale, and appellant is barred. Kirby's Digest, § 5060; 96 Ark 54. In such sales there is no exemption in favor of married women. 79 Ark. 410. She was served by warning order.

2. She is barred by limitation which began on the death of her first husband.

3. It is not disclosed that Martha Mitchell was a life tenant in possession at the time of the tax forfeiture. All of appellee's grantors were adults and appellant was older than the other heirs. Appellees have been in possession for more than the statutory period under a tax deed. No exceptions are made in favor of married women. Kirby's Digest, § 5061; 53 Ark. 419; 71 Id. 117; 124 Id. 379; 84 Id. 615.

4. Appellant is barred because the property was a homestead and she failed to bring suit within seven years after alienation by the widow. 79 Ark. 410; 65 Id. 70.

5. The homestead was abandoned on the execution of the deed to Jones and Bloom, and appellees have been in possession until the filing of the petition to confirm their title. She had knowledge but took no steps. Expensive improvements have been made. The long delay estops her. 126 Ark. 93; 103 Id. 259. Laches can be pleaded. 84 Ark. 145. Upon the whole case findings of the chancellor are correct.

OPINION

SMITH, J.

Appellees instituted this proceeding by filing a petition for the confirmation of their title to lot 1, block 7, of Woodruff's Addition West to the city of Pine Bluff. It was there alleged that the lot had forfeited and been sold to the State for the nonpayment of the taxes for the year 1892, and that after having been duly certified to the State was purchased from the State by one Martha Mitchell on July 6, 1895. Martha Mitchell conveyed this lot, except sixty feet off the south end, to Jeff Austin, who reconveyed the land to her. On October 27, 1902, Martha Mitchell, as widow of John C. Morris, together with certain heirs of John C. Morris, conveyed the lot by warranty deed to Jones and Bloom, who on July 24, 1914, conveyed to petitioners, who prayed a confirmation of their title.

An answer and intervention was filed to the petition by Florence Galloway, in which she alleged that she was a daughter of J. C. Morris and, as such, owned an undivided one-fifth interest in the lot. That she was a daughter by her father's first marriage, and that upon the death of her mother, her father married Martha Mitchell, and four children were born of that union. That her father owned the lot at the time of his death, and the same constituted his homestead, and that Martha Mitchell remained in possession thereof by virtue of her homestead right after the death of J. C. Morris. Intervener Florence Galloway was herself twice married, and she remained a widow, for only about one year, and her second marriage took place on September 30, 1900, since which time she has been a married woman. Her first marriage occurred August 28, 1894.

An answer and cross-complaint was filed, in which it was alleged that J. C. Morris had, on June 27, 1878, executed a deed to the south sixty feet of said Lot No. 1 to H. H. Hunn, and a suit was brought by him, in which he alleged that this conveyance, though, in form, a deed, was, in fact, a mortgage, and a foreclosure thereof was prayed. The widow and heirs of J. C. Morris, including the intervener, were made parties defendant to this foreclosure proceeding, and a decree of foreclosure was entered fixing a lien upon the property for the sum due Hunn, and a commissioner was appointed to sell the lot in default of payment, and at the sale had pursuant to the terms of this decree Hunn became the purchaser of the land, and received a deed from the commissioner therefor. Hunn thereafter conveyed to Bloom and Jones, who in turn, conveyed to petitioners. Possession under this title for a period of more than seven years was alleged. Petitioners reasserted their ownership of the lot under the tax forfeiture and sale set out as stated above in their original petition for confirmation. Petitioners alleged that they made valuable improvements under the belief that they held a fee simple title to the property, wherefore they say that intervener is barred both by laches and limitation from asserting any claim of title to the lot in question. The court found that intervener knew of the possession of petitioners and their predecessors in title, and of the improvements they were making, and that she was barred by laches from asserting her title to the lot in question, and this appeal has been duly prosecuted.

It appears that, at the time of the foreclosure proceeding, intervener was a resident of St. Louis, Missouri, and that constructive service was had against her by the publication of a warning order. For some reason, not made clear, a guardian ad litem was appointed for intervener in this proceeding, and it is now said that, as she was not an infant at the time of the rendition of the decree in the case of Hunn v. Martha Mitchell et al., the proceeding, as against her, was irregular and void on this account. Such, however, cannot be the effect of the erroneous appointment of a guardian ad litem for an adult defendant who had been properly summoned by the publication of a warning order. There was, of course, no necessity for the appointment of a guardian ad litem for an adult defendant, even though she were a married woman; but, as the service was complete and sufficient, without the appointment of this guardian ad litem, that unnecessary action can not, and does not, defeat what is otherwise a valid and sufficient service.

It appears, therefore, that, as to this south sixty feet of Lot No. 1, the petitioners have, not only color of title, but the actual title to that portion of the lot. The foreclosure proceeding, and the deed made thereunder, is conclusive of the title to that portion of the lot.

As to the tax title under which petitioners attempt to assert title to the remainder of the lot, it may be said that it was the duty of Martha...