Killeam v. Carter

• Decision Date: 19 February 1898
• Citation: 44 S.W. 1032
• Parties: KILLEAM v. CARTER et al.
• Court: Arkansas Supreme Court

Page 1032

44 S.W. 1032

KILLEAM v. CARTER et al.

Supreme Court of Arkansas.

February 19, 1898.

Appeal from circuit court, Logan county; Jephtha H. Evans, Judge.

Action by F. J. Carter and others against W. L. Killeam to recover certain realty. Judgment for plaintiffs. Defendant appeals. Reversed.

T. A. Pettigrew and J. V. Bourland, for appellant. Rowe & Rowe, for appellees.

WOOD, J.

Jeremiah Carter died in 1863, seised of 160 acres of land, which constituted his homestead. Several years thereafter 106 2/3 acres of this land was sold by order of the probate court in a proceeding to which the widow of Carter and his heirs were made parties. In this proceeding the remaining 53 1/3 acres were set apart to the widow as dower. Upon this latter portion was situate the mansion house in which Carter lived at the time of his death, and in which she and the minor children continued to live, — she until her death in 1891, and they presumably until of age. The children had all become of age in 1875. The appellant, Killeam, went into possession of the land in controversy under deeds obtained from the purchaser at the administrator's sale. Appellant knew that his deed came from the purchasers at the sale. He went into possession under his deeds claiming to be the owner in fee, made valuable improvements, paid the taxes, and occupied the said land continuously for 15 years, which the widow all this while knew, yet she made no claim to the land herself, but said that it belonged to Killeam. This suit in ejectment was brought by the children and heirs of Carter in 1893 to recover of appellant the 106 2/3 acres of land mentioned supra. The answer denies all material allegations of the complaint, and sets up the statute of limitations of seven years. The undisputed facts show an abandonment of the homestead by the widow, of which the heirs must have had notice. They were parties to the suit wherein the land in controversy was sold and the widow's dower assigned. They lived, presumably until of age, with the widow on the tract adjoining. The youngest lacked only about two years of majority when appellant went into possession under his first deed. Those of them who were minors when he took possession under this deed certainly had no right to suppose or believe that he was holding under the widow, for she could not invest another with any rights that would be adverse to them. Appellant, from the first, occupied the land openly, continuously, and adversely to all the world, and this continued for a period of...