Kenady v. Gilkey

• Decision Date: 17 December 1906
• Citation: 98 S.W. 969
• Parties: KENADY v. GILKEY et al.
• Court: Arkansas Supreme Court

98 S.W. 969

KENADY v. GILKEY et al.

Supreme Court of Arkansas.

December 17, 1906.

Appeal from Perry Chancery Court; Jeremiah G. Wallace, Chancellor.

Actions by M. W. Gilkey and J. C. Harkness and others against W. H. Kenady. The actions were consolidated and transferred to the chancery court, and from the decree said Kenady and J. C. Harkness and others appeal. Affirmed in part, and reversed in part, with directions for decree.

Campbell & Stevenson, for appellants. Jno. M. Parker, Sellers & Sellers, and J. I. Hill, for appellee.

McCULLOCH, J.

This suit involves a tri partite controversy over the title to certain lands in Perry county, Ark.

Appellee M. W. Gilkey was formerly a resident of Perry county, and acquired title to the N. E. ¼ of S. W. ¼ and N. W. ¼ of S. E. ¼, section 36 — 4 — 21, 80 acres, which we may hereafter refer to as the "Gilkey Tract." About the year 1890, while in possession of the land as a homestead, he left the country, and left his wife in possession of the land; and she procured a divorce from him about 1899, intermarried with appellant. W. H. Kenady, on September 2, 1902, and died childless in June, 1903. On May 9, 1891, the Gilkey land was sold under special execution on an attachment against Gilkey to one Z. J. Pierce who, on October 22, 1891, entered into the following contract with Mrs. Gilkey concerning the same: "This agreement entered into this 22nd day of October, 1891, by and between Z. J. Pierce and Mrs. A. M. Gilkey, witnesseth: That, whereas, the said Z. J. Pierce holds a certificate of purchase, at sheriff's sale to what is known as the `M. W. Gilkey Farm' in Perry county, Arkansas, now in possession of the said A. M. Gilkey, now in consideration of the receipt of one half of the rent of said farm until the sum of $225 has been collected by him without interest, the said Z. J. Pierce agrees when said sum has been received by him to execute to the said Annie M. Gilkey a quitclaim deed to said farm. It is further agreed that the division of the rent, as above stated, is to commence with the year 1891, and to continue until the said sum of $225 has been paid to Z. J. Pierce as above stated, and no further proceeding taken under said certificate of purchase unless this agreement is broken by said A. M. Gilkey." On January 19, 1897, Pierce executed to Mrs. Gilkey a deed, purporting to convey the land to her. Mrs. Gilkey owned another tract, containing 80 acres which is known as the "Bates Tract." After the intermarriage of Mrs. Gilkey with appellant, and her death, Gilkey commenced an action at law against appellant to recover possession of the Gilkey tract; and J. C. Harkness and other collateral heirs of appellant's wife commenced a similar action against him to recover the Bates tract. Appellant filed his answer in each case, claiming title to all of said lands under a deed of conveyance alleged to have been executed to him by his wife Annie M. (Gilkey) on September 4, 1902, which said deed, he alleged, had been lost or destroyed, and had not been recorded. In his answer in the Gilkey case, he also pleaded that he and his grantor had been in actual, adverse possession of the land more than seven years next before the commencement of the action. By consent of all parties the two actions were consolidated and transferred to the chancery court. Appellant then filed an amendment to his answer, making it a cross-complaint, asking that the alleged deed executed to him by his wife be reformed, so as to correct the imperfect description therein of the land conveyed. The court rendered a final decree in favor of Gilkey for the Gilkey tract, and in favor of appellant for the Bates tract. Kenady and the plaintiffs in the Harkness suit appealed to this court.

We are of the opinion that the decree was correct in awarding the Gilkey tract to appellee Gilkey. In the first place, no title passed to Pierce under the attachment sale, for the reason that the sale was never confirmed by the court which ordered it in the action against Gilkey. The judgment was rendered upon constructive service, an order of attachment was levied on the land, and the court ordered it sold to satisfy the debt, as provided by statute. The sale was made...