Kirksey v. Cole

• Decision Date: 30 October 1886
• Citation: 1 S.W. 778
• Parties: KIRKSEY and others <I>v.</I> COLE.
• Court: Arkansas Supreme Court

1 S.W. 778

KIRKSEY and others

v. COLE.

Supreme Court of Arkansas.

October 30, 1886.

Appeal from Craighead circuit court.

Action of ejectment to recover an interest in land. Judgment for defendant. Plaintiffs appealed.

E. F. Brown, for appellants. The appellee, pro se.

BATTLE, J.

Augustus Howell died on or about the first day of April, 1859, seized in fee and possessed of certain lands in Craighead county, which lie in a body, and contain 160 acres. At the time of his death he resided upon and occupied these lands as his homestead. He was a married man, and the head of a family, and left him surviving five children,—George, Sallie, Caroline, Gaines, and Lewis Howell. The youngest, Lewis, was about four weeks old when his father died. George and Sallie, on coming of age, conveyed their interest in these lands to John Simmons, and he conveyed to appellant W. D. Kirksey. Caroline sold and conveyed her interest to William Edgar, who thereafter died, leaving J. T. Edgar, his only heir, surviving him. Gaines sold and conveyed his interest to John Simmons, who afterwards, on the fifth day of August, 1879, sold and conveyed to appellee, Y. A. Cole; and on the twenty-ninth day of March, 1885, Lewis sold and conveyed to Cole. On the ninth of June, 1873, the sheriff and collector of Craighead county sold these lands to Cole for the taxes of 1872, and on the tenth day of June, 1875, the clerk of Craighead county pretended to convey them by deed to Cole, the same not having been redeemed. This sale and deed are admitted by all concerned to be void. In 1875, Cole took possession of these lands; and on the twenty-seventh day of August, 1883, Kirksey and J. T. Edgar sued Cole in ejectment for possession. Cole answered the complaint, denying the title of plaintiffs, and their right to possession, claiming exclusive possession, and pleading the seven-years statute of limitation.

The only evidence about the entry of the defendant, and his possession of the land, was the testimony of Joseph Simmons and the defendant. Simmons testified that "John Simmons became the guardian of Gaines and Lewis Howell, and collected rents of defendant, Cole, and his tenants, for two or three years after he went on the land." Cole says "he got his tax deed in 1875, entered and stopped parties from cutting timber, and in December of that year went on the land with a tenant, repaired the fences, and that he had tenants on the land in 1876, 1877, and 1878, and that he had paid the annual taxes every year since 1875." He also testified that "last year [1884] he had built a house on the land."

Plaintiffs asked for, and the court refused to give to the jury, the following instruction: "And the jury are further instructed that, although they may find from the evidence that the defendant held continuous, unbroken, notorious, peaceable and adverse possession of the lands in controversy for seven years next before the bringing of this suit, yet, if they find that the plaintiffs were the owners of three-fifths of said lands, that said lands were the homestead of Augustus Howell at the time of his death, and that one or more of the children of said Howell were minors at the date of the entry of the defendant upon the said lands, and that they, or either of them, did not arrive at the age of twenty-one years until within said seven years, then they will find for the plaintiffs the three-fifths of said lands, although they may find that such child or children did not, during said seven years, reside upon said lands, or receive any rents or profits therefrom, either by themselves or their guardian."

And the defendant asked for, and plaintiffs objected to, and the court gave, the following among other instructions to the jury: "The court is asked to declare the law to be that a right of action accrued to the plaintiffs or their grantees upon the adverse entry of the defendant, and that the fact that a right of homestead in the premises in controversy existed in other and younger heirs of Augustus Howell did not prevent the statute from running against plaintiffs or their grantors. The jury are instructed that the saving to minors in reference to bringing actions after coming of age is personal to the minor; and if, upon becoming of age, a minor sells his land to another, the right of action accrues to the purchaser at once, and such purchaser cannot avail himself of the three-years saving in favor of minors."

A verdict was returned in favor of defendant, and upon it a judgment was rendered in his favor against plaintiffs. Plaintiffs filed a motion for a new trial, which was overruled, and they saved exceptions and appealed.

Before considering the questions involved in this action we notice that appellants incorporated in their bill of exceptions the pleadings in this action, the complaint, and answer. This was improper. They were already a part of the record of the case. The office of a bill of exceptions is to bring into the record that which does not otherwise appear therein, or constitute a part of the record, and which it is necessary to bring to the notice of the court to which appeal is taken.

Augustus Howell having died in 1859, the disposition of his homestead is governed by the homestead act of 1852. By the second section of that act the homestead of a deceased person, who was, when...