Gates v. Gray

• Decision Date: 16 December 1907
• Parties: GATES v. GRAY
• Court: Arkansas Supreme Court

106 S.W. 947

85 Ark. 25

GATES v. GRAY

Supreme Court of Arkansas

December 16, 1907

Appeal from Lonoke Circuit Court; George M. Chapline, Judge reversed.

Mrs Ollie Lillie and Charles Gray, a minor, by his next friend John High, sued F. Gates in ejectment, and recovered judgment, from which defendant has appealed.

Reversed and remanded.

Lehman, Gates & Lehman, for appellant.

1. The answer set up a defense cognizable only in equity, and it was error to deny the motion to transfer to chancery court. 36 Ark. 236; 52 Ark. 414; 71 Ark. 487; Kirby's Digest, § 5995.

2. Since the answer set up a complete defense in equity, the court erred in sustaining the demurrer. Kleber, Void Judicial and Execution sales, § 490 and cases cited; 28 Ark. 372.

OPINION

MCCULLOCH, J.

The plaintiffs, as heirs at law of their deceased mother, M. G. Gray, instituted this action in the circuit court of Lonoke County against the defendant, F. Gates, to recover possession of a tract of land in that county, of which the defendant is alleged to be in unlawful possession. They allege in their complaint that said M. G. Gray was, at the time of her death, the owner of said land under a deed from the State of Arkansas.

The defendant filed his answer and cross-complaint, admitting that M. G. Gray owned the land in controversy but claiming title thereto under a mortgage or trust deed executed by said M. G. Gray and a foreclosure sale decreed by the chancery court of Lonoke County. It is alleged in apt terms that said M. G. Gray and her husband, T. G. Gray, executed said trust deed to one Lamm as trustee to secure the payment of certain indebtedness to defendant; that after the death of M G. Gray this defendant instituted in the chancery court of Lonoke County a suit against F. G. Gray and these plaintiffs as heirs of M. G. Gray to foreclose said trust deed; that all of said parties were duly served with process, and that said chancery court duly rendered a decree for the foreclosure of said deed; that the commissioner of said court sold said land at public outcry pursuant to said decree, and this defendant became the purchaser of the same; that said sale was reported to and duly confirmed by said court; that said commissioner executed and delivered to the defendant a deed, which was approved by said chancery court, conveying said land to him, and that he took and now holds possession of the land thereunder. The answer and cross-complaint also state that said dead of the commissioner, after reciting the pendency of said suit in chancery, the decree and other proceedings therein and sale and confirmation, purports to convey to defendant as such purchaser "all right, title interest or claim at law or in equity of T. G. Gray and M. G. Gray, said defendants in chancery," instead of purporting to convey...