Gordon v. Wellman

• Court: Arkansas Supreme Court
• Writing for the Court: Charles B. Mott, Jr.; FOGLEMAN; We agree. HARRIS
• Citation: Gordon v. Wellman, 582 S.W.2d 22, 265 Ark. 914 (Ark. 1979)
• Decision Date: 11 June 1979
• Docket Number: No. 2,No. 78-140,78-140,2
• Parties: Carl Dee GORDON, et ux., Appellants, v. Barbara R. WELLMAN, Appellee

Page 22

582 S.W.2d 22

265 Ark. 914

Carl Dee GORDON, et ux., Appellants, v. Barbara R. WELLMAN, Appellee.

No. 78-140.

Supreme Court of Arkansas, Division No. 2.

June 11, 1979.

Charles B. Mott, Jr., J. Fred Jones, Little Rock, for appellants.

Gannaway, Darrow & Hanshaw by Lance L. Hanshaw, Little Rock, for appellee.

FOGLEMAN, Justice.

It is with some reluctance that we find it necessary to reverse the decree in favor of appellee and dismiss this action she brought for partition, based on her claim to a 1/3 interest in a tract of land which was owned by her former father-in-law, C. A. Wellman, who died testate in 1941. Under the terms of his will, the tract, consisting of 5.23 acres, descended to his three children his son, Harry, and his daughters, Helen and Carmelita (Novara) as tenants in common. Helen, a registered nurse, had lived with and cared for her father during the last year of his life. He had lived in a house on the property. She continued to live in the house situated on that tract until her death in June, 1975. There was evidence tending to show that she had made improvements on the property and had paid the taxes on it. In 1950, Helen caused quitclaim deeds to be prepared and sent to her brother and sister for signature. The deeds were executed by them and returned to her, and both of them were filed for record on February 27, 1951. Appellee, Barbara Wellman, was then the wife of Harry Wellman, having been married to him for over 20 years. Barbara did not sign that deed or relinquish her dower right in the property. It was executed by Harry on November 20, 1950. These deeds to Helen contained an error in the description of the land. Only the beginning point of a purported metes and bounds description was correct. The major error in the description was the omission of the first course and distance from what would have been a correct description. As a result, the courses described do not close and these deeds were obviously void for indefiniteness. Bailey v. Martin, 218 Ark. 513, 237 S.W.2d 16.

Harry and Barbara were divorced by decree entered October 6, 1952. Barbara was represented by attorney Ward Martin and Harry by E. H. Bostic. A settlement in lieu of alimony was reached and Martin prepared two warranty deeds which Harry executed on that date, to carry the agreement into effect. One of them was a conveyance of Harry's undivided 1/3 interest in the 5.23 acre tract to Barbara. The tract was correctly described in that deed. The deeds were recorded on the day the decree was entered and Harry was married to someone else on that same date. The decree recited that the deeds were given in lieu of alimony.

In May, 1953, Harry and Carmelita again executed quitclaim deeds to Helen. These deeds correctly described the property and contained a recitation that they were correction deeds. The deed drafted for execution by Harry was drawn for execution by the husband and wife as grantors and contained a clause for relinquishment of dower. Barbara did not sign this deed, and, if Harry's wife to whom he was then married signed it, that fact is not disclosed by the record.

On July 28, 1953, Helen secured a $2,000 loan by executing a mortgage on the property to National Equity Life Insurance Company. There is testimony indicating that this loan was for improving the property. She continued in possession of the property until she sold all of it, except the house and the small lot on which it sat, to appellants, Carl Dee and Mary Frances Gordon, husband and wife, by warranty deed dated July 21, 1958. The part retained by Helen passed by will to her sister Carmelita and Carmelita's husband. When the sale was made to the Gordons, the title was approved by their attorney who examined an abstract which erroneously showed that appellee had executed the correction deed with Harry and had thereby relinquished her dower. The Gordons took possession of the tract and commenced diverting ditches on the property and placing dirt on it.

This suit for partition was filed on September 9, 1958, by Ward Martin, as attorney for Barbara Wellman. Helen Wellman and the Gordons were defendants. The petition contained allegations that Barbara owned an undivided 1/3 interest in the 5.23 acre tract, that Helen and the Gordons owned an undivided 2/3 interest, and that Helen had been in possession since October 6, 1952. The prayer was that the property be sold and the proceeds divided, and that Barbara have judgment against Helen for $1,000, as one-third the rental value of the property. Helen Wellman filed an answer through her attorney O. D. Longstreth. This answer included a general denial and pleas of laches, adverse possession, and the statute of limitations specifically relating to the bar of a dower interest. The Gordons, through their attorney Shelby Blackmon, answered by general denial, but did not plead the other defenses set out in Helen's answer. They also cross-complained against Helen Wellman on her warranty of title and requested that the abstract company be made a party defendant.

After some sort of hearing before Chancellor Williams, of which no record was ever made, the litigation remained in virtual hibernation until August 31, 1971, when the Gordons filed a motion to dismiss for want of prosecution. Barbara's attorney, Ward Martin, filed a response asserting that the case had been partially tried before Chancellor Williams, that certain matters were then left to be resolved, that the Chancellor had died before the case could be concluded and that Barbara had at all times been willing to close the matter, but not on the terms of the defendants. Appellee asked that the case be set for trial on December 13, 1971. It seems that a hearing on the motion had been set for some unspecified date, but according to the testimony of Blackmon, Martin caused the case to be taken off the docket, for reasons undisclosed, and it returned to a state of dormancy until March 9, 1976, when Martin was permitted to withdraw and appellee's present attorneys were substituted. The motion to dismiss was heard and denied on April 8, 1977.

The cause of action against Helen Wellman was not revived within one year after her death, or at any time prior to trial on August 12, 1977. Appellee's present counsel appeared and announced that he was ready for trial after the motion to dismiss was denied on April 8, 1977. Appellants never amended their pleading first filed to plead adverse possession, laches, or the statute of limitations, prior to the actual trial.

We consider only one point for reversal, insofar as the disposition of this appeal is concerned. Appellants assert that appellee is barred by laches in the prosecution of her claim. Appellants admit that they have been unable to find any Arkansas case applying the bar of laches to the prosecution of a claim after suit has been filed. They rely upon the general principles of the doctrine and the decisions of other jurisdictions. We are not aware of any such decision by this court.

Of course, the court in which an action is pending is authorized by Ark.Stat.Ann. § 27-1405 (Repl.1962) to dismiss a case, without prejudice to a future action, on motion of a defendant, where there are others whom the plaintiff fails to prosecute with diligence, where the plaintiff fails to appear for trial, or where the plaintiff has disobeyed an order concerning the proceedings in the action. None of these grounds has been clearly shown to exist, although appellants filed a motion to dismiss, as previously mentioned, and made some effort to obtain a dismissal by such a motion. In that motion, appellants alleged that, since the cause had remained dormant since they filed their answer and cross-complaint on September 26, 1958, without any further pleading or court order of record, it was subject to dismissal under § 27-1405 and Rule 10, Uniform Rules for Circuit and Chancery Courts. At a pretrial hearing on April 8, 1977, this motion was renewed. At that time, Blackmon, representing appellants, stated that an order of the court had not been carried out and that appellants had made efforts to have the case brought to a conclusion to the extent of writing letters to Chancellor Williams. He pointed out that in the response to the motion, appellee had asked that the case be set for trial on December 13, 1971. Blackmon stated that he appeared in court on that date, but that appellee, the plaintiff, did not appear. Nothing seems to have been done at that hearing, but Blackmon pointed out that the court file contained a copy of a letter he had written in 1962 to Martin in an effort to conclude the matter. The copy had been sent to Chancellor Williams, according to Blackmon. The letter related that the case had been partially tried and that the abstract company had agreed to pay for the amount of the dower interest awarded to Barbara. In the letter, Blackmon had stated his intention to apply to the court for dismissal on a certain date. The record is devoid of any evidence of any action on that date or at any time prior to March 9, 1976, when the chancery court permitted Ward Martin to withdraw and present counsel for appellee to be substituted.

We can well understand why the trial court did not grant the motion filed on the grounds stated in it. Both the statute and the rule relied upon provide only for a dismissal without prejudice. This would permit an immediate refiling. There is every reason to believe that the case would have been refiled, because it is clear from this record that appellee's present counsel have pursued the matter aggressively and acted with reasonable diligence in bringing the matter to trial, particularly when we view the confusion that has resulted from the long delay after the hearing before Chancellor Williams.

Even though neither the statute nor the rule made the dismissal mandatory and neither would have terminated this fusty litigation, the power and duty of the court to...