Harvey v. Douglass

• Decision Date: 03 December 1904
• Citation: 83 S.W. 946
• Parties: HARVEY v. DOUGLASS.
• Court: Arkansas Supreme Court

83 S.W. 946

HARVEY v. DOUGLASS.

Supreme Court of Arkansas.

December 3, 1904.

Appeal from Circuit Court, Lincoln County; Antonio B. Grace, Judge.

Action in ejectment by Zuleika Douglass against W. H. Harvey and others. From a judgment for plaintiff, defendant Harvey appeals. Affirmed.

Mrs. Douglass brought this action of ejectment in the Lincoln circuit court against the appellees, Harvey, Woods, and Atkinson, alleging that she was the owner and entitled to the immediate possession of the real estate therein described, and set forth her title, and that the defendants had been in the unlawful possession of it for the past two years, claiming under some sort of title emanating from Thomas E. Douglass. She deraigned her title as follows, making the muniments exhibits to the complaint: (1) Entry by Wm. Fields, and certificate thereof from United States land office. (2) Deed from Wm. Fields to Wm. Pope. (3) Tax deeds conveying land sold as that of Wm. Pope to Wm. Dougherty. That Dougherty went into possession and held actual possession for seven years prior to his death in 1885. (4) Deed from the administrator of Dougherty's estate to Thomas E. Douglass. The complaint alleges appropriate orders for sale, and the approval thereof. The deed does not show approval by the court. (5) Execution sale against Douglass, and purchase by Thedford. (6) Deed from Thedford to Zuleika Douglass, the plaintiff.

On the United States plat the land in question is described as follows: "E. frl. pt. of S. E. ½, and E. frl. pt. of S. W. ¼ Sec. 13; W. ½ of S. W. ¼ Sec. 13; E. frl. ½ and S. W. frl. ¼ Sec. 24, and W. ½ N. W. ¼ Sec. 24,"—all described to be in township 7 south, of range 5 west. This description is substantially the description in plaintiff's various muniments of title.

The answer of the defendants begins as follows, after the caption: "The said defendants, for answer to plaintiff's complaint, deny that she is the owner and entitled to the possession of the lands mentioned in the complaint, and that they unlawfully detain said lands from her." Then the answer proceeds to allege a tax purchase by Wm. A. Sample of these lands (under a somewhat different description) for delinquency in payment of taxes for the years 1869 and 1870, and that Sample entered into possession, and had been in continuous possession thereof, himself or his heirs, for 25 years, and the defendants claimed under his heirs as their tenants. Defendants also filed motion to dismiss for want of affidavit of tender of taxes, costs, and improvements; alleging that the defendants claimed under purchase at tax sale. This motion was overruled. The case was tried upon the record evidence and two admissions of fact—one that the plaintiff, Mrs. Douglass, was a married woman when she acquired title in 1868, and has ever since been the wife of Thomas E. Douglass, and the other that the defendants were holding as tenants under the heirs of Sample. The judgment was for the plaintiff, and defendant has appealed.

X. J. Pindall, for appellant. W. S. & T. L. McCain, N. J. Gantt, Jr., and J. W. Crawford, for appellee.

HILL, C. J. (after stating the facts).

1. The first question to consider in the case is as to the issues between the parties. The general denial of ownership of the land, when the alleged title is set forth specifically as required by good pleading, raises no issue at all. This court has declared the chief object of the reformed system of pleading is "to compel the adverse parties to disclose to each other the facts upon which they rely to uphold the claim upon the one side, and to maintain the defense on the other, in order that each may know what he is required to establish or repel by proof upon the trial." Hecht v. Caughron, 46 Ark. 133. In other words, the object of the code system is to force a trial on the merits, and pleadings must furnish the opposite party notice of exactly what is to be relied upon in a trial on the merits. The general denial of the legal conclusion stated in the complaint, which had no proper place there (section 2578, Sand. & H. Dig., prescribes the substance of the complaint), does not disclose any fact relied upon. As Chief Justice Cockrill forcibly said: "The formal general denial goes for naught." Shirk v. Williamson, 50 Ark. 563, 9 S. W. 307. See Beard v. Wilson, 52 Ark. 290, 12 S. W. 567. Disregarding this denial, and looking to the merits of the answer, these are the only issues presented: (1) The tax purchase asserted in behalf of Sample; (2) adverse holding for 25 years; (3) the description of the land is put in issue this way: The defendants claim under a different description from that asserted in the complaint, and the answer may be treated as alleging the incorrectness of plaintiff's description; and, in the exceptions to the various muniments of title of plaintiff, it is alleged that the deeds are void for uncertainty in the description. Various exceptions were filed to plaintiff's muniments of title. Some of these are urged here. Others not presented in the lower court are urged here. These latter cannot be considered, under section 2580 of the Digest. It is provided by section 2578 of the Digest that the plaintiff and defendant must each plead the title relied upon, stating such facts as make a prima facie title in himself, and exhibit with his pleadings the deeds and other written evidences of his title. Section 5761 provides allegations not specifically denied must be taken as true. Section 2578 has been substantially followed by each party hereto in so far as pleading title in themselves, respectively; but the defendant (appellant here) sought by exceptions to various evidences of plaintiff's title to raise issues...