Harvey v. Douglass
| Decision Date | 03 December 1904 |
| Parties | HARVEY v. DOUGLASS |
| Court | Arkansas Supreme Court |
Appeal from Lincoln County Circuit Court, ANTONIO B. GRACE, Judge.
Affirmed.
STATEMENT BY THE COURT.
Mrs Douglas 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 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. Douglas. The complaint alleges appropriate orders for sale and the approval thereof. The deed does not show approval by the court. 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: East fractional part of southeast quarter, and east fractional part of southwest quarter, section 13; west half of the southwest quarter of section 13; east fractional half and southwest fractional quarter of section 24, and west half of the northwest quarter of section 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 defendant begins as follows, after the caption "The said defendants for answer to plaintiff's complaint denies 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 twenty-five 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 a 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.
Judgment affirmed.
X. J. Pindall, for appellants.
The tax deeds were void because several tracts were sold together for a gross sum. Rev. St. c. 128, § 82; 31 Ark. 491; 30 Ark. 579. These deeds recite that Wm. Pope was a nonresident, and the deeds do not recite facts enough to show good title. 13 Ark. 249-250. The court erred in overruling the defendant's exceptions. The administrator's deed is void because it does not appear that the sale was ever approved by the court which ordered same. 47 Ark. 413.
W. S. & F. L. McCain, N. J. Gantt, Jr., and J. W. Crawford, for appellee.
The answer is insufficient because the denial "that the plaintiff is the owner and entitled to the possession" is a mere conclusion of law. Sand. & H. Dig. § 5715; Ib. 2578; 50 Ark. 562. The complaint deraigned title in accordance with the law, and by failure to specifically deny same appellants have admitted it. 41 Ark. 135; 44 Ark. 517; 62 Ark. 31. The answer admits, by failure to deny, that Dougherty held by color of title. 7 Wheat, 105; 50 Ark. 154; 38 Ark. 181; 62 Ark. 56; 10 Johns. 339. Defendants cannot avail themselves of any objections to title not taken in the lower court. 99 U.S. 665; 38 Ark. 389. Even if the deeds were void, they gave color of title, and seven years peaceable possession perfected a title by limitation. 20 Ark. 508; 20 Ark. 542. The lands in section 13 were sufficiently described. 68 Ark. 544; 120 Ind. 119, s. c. 22 N.E. 127; I Sm. & M. Ch. 338; 15 Mo. 309; 112 Ill. 554; 67 Mo. 100; 67 Ill. 581. There was no error in overruling the motion to dismiss. Cooley, Taxation, 533; 51 Ark. 397; 43 Ark. 398. The amount of penalty and costs was excessive. 61 Ark. 26; 56 Ark. 96.
OPINIONHILL, 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 declared the chief object of the reform 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. 132. 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 of Sandels & Hill's Digest 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. 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 twenty-five 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 plaintiffs muniments of title. Some of these urged here; others not presented in the lower court are urged here. These latter cannot be considered, under section 2580, Sandels & Hill's Digest. It is provided by section 2578 of Sandels & Hill's 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 that 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 defendants (appellants here) sought by exceptions to various evidences of plaintiff's title to raise issues thereupon which were not raised by the answer. The failure of the defendants to controvert the prima facie title pleaded by plaintiff, and pleading in avoidance thereof a tax purchase and adverse possession as the prima facie title in themselves, was an admission of plaintiff's title, and rendered wholly immaterial the evidences of it which are sought by these exceptions to be attacked.
2. The tax purchase relied upon was void. Without considering all of the objections raised to it, it is sufficient to say that two hereafter mentioned defeated it. The first is as to the amount of costs for which the land sold. The certificate introduced to prove the sale showed the costs were $ 1.85. This was excessive, and avoided the sale. Goodrum v Ayers, 56...
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