Kitchens v. Wheeler

• Decision Date: 19 February 1940
• Docket Number: 4-5579
• Parties: KITCHENS v. WHEELER
• Court: Arkansas Supreme Court

141 S.W.2d 34

200 Ark. 671

KITCHENS v. WHEELER

4-5579

Supreme Court of Arkansas

February 19, 1940

Appeal from Columbia Chancery Court; W. A. Speer, Chancellor affirmed.

Affirmed.

James H. Nobles, Jr., W. H. Kitchens, Jr., and J. R. Wilson, for appellant.

Ezra Garner, Jack Machin and Gaughan, McClellan & Gaughan, for appellee.

OPINION

GRIFFIN SMITH, C. J.

April 4, 1899, Ben Wheeler acquired certain lands which will hereafter be referred to as the 65-acre tract.

February 16, 1917, Wheeler (then a widower) died. He then, and had from a time antedating its acquisition, resided with his family on the land. During such time he was in possession of (and had embraced in the same enclosure with said lands) a tract of approximately 18 acres lying north of the St. Louis Southwestern Railroad right-of-way. This land will be referred to as the 18-acre tract.

Ben Wheeler was survived by four children of an earlier marriage W. W. Wheeler, Sardenia Wheeler, Almeda Wheeler Hildreth, and Albert Wheeler. By his last marriage he was survived by eight children: Wesley Wheeler, Sebe Wheeler, Dan Wheeler, Buck Wheeler, Bertha Wheeler (now Price), Virginia Wheeler (now Holmes), Laura Wheeler (now Perry), and Adie Wheeler, the last three being minors. Several of the Wheeler children continued to live on the land after Ben Wheeler's death. Wesley Wheeler, the last to leave, moved in 1923.

In May, 1921, a quitclaim deed to the 18-acre tract was made to J. C. Love. This deed was made after Love had acquired title from other grantors to the lands in the same 40-acre tracts that lay south of the railroad. Love undertook to have the 18-acre tract cultivated.

When Love's intentions became apparent, certain of the Wheeler heirs employed Wade Kitchens as an attorney to protect their claims. Suit was instituted to quiet and confirm title in the petitioners to the original Ben Wheeler purchase and the contiguous 18-acre tract enclosed with it. A demurrer to the complaint was sustained. Thereafter the cause was left inactive on the court's docket until 1925, when it was stricken. In the meantime Love had not attempted further cultivation of the land.

Between 1920 and 1925 Kitchens represented Buck Wheeler and Wesley Wheeler when criminal proceedings were brought against them. The attorney's fee was secured by two deeds of trust. One was executed by Buck Wheeler, Wesley Wheeler, and Mary Wheeler, the latter being Wesley's wife. The other deed of trust was given by Dan Wheeler, whose wife, Eva, did not join therein. Dan Wheeler died in February, 1925, survived by Eva, and by his brothers and sisters.

June 9, 1924, while the two trust deeds were in force, Kitchens purchased at a clerk's tax sale the 65-acre tract. Deed to the land was issued to him June 15, 1926.

In 1927 Kitchens brought suit to foreclose the trust deeds. Wesley Wheeler, Buck Wheeler, Mary Wheeler, and Dan Wheeler were made defendants. At the commissioner's sale had pursuant to foreclosure decree Kitchens became the purchaser. The deed executed to him, in form, conveyed all interest in the land. Kitchens thereupon took possession. He collected rents and paid taxes until 1936, at which time the first suit in this much-ramified litigation was instituted.

In 1927 J. C. Love executed a deed of trust in favor of Magnolia Grocer Company, covering the 18- acre tract and other lands. An indebtedness of considerable size was secured by the transaction. This deed of trust was foreclosed and Magnolia Grocer Company bought at the commissioner's sale, receiving deed dated May 22, 1930.

December 12, 1936, Adie Wheeler, Sebe Wheeler, Bertha Wheeler Price, Virgie Wheeler Holmes, and Laura Wheeler Perry instituted suit in ejectment against Wade Kitchens. They sought possession of the respective interests claimed by them in the lands Ben Wheeler had in possession at the time of his death--the 65 acres and the 18 acres. By amendment to the complaint it was sought to have description of the 18-acre tract corrected. Magnolia Grocer Company was brought in as a defendant. The ejectment suit was in Columbia circuit court.

November 7, 1937, Wesley Wheeler brought suit in Columbia chancery court against Kitchens whereby it was sought to have the foreclosure decree against him set aside because of alleged irregularities in the proceedings. Two days later, in the same court, Eva Wheeler (widow of Dan Wheeler) and the same Wheeler heirs who had instituted the circuit court action brought suit to set aside the same sale as to the widow in so far as her dower interest was concerned. As to the heirs, the relief prayed was that the sale be set aside in so far as their interests as the heirs of Dan Wheeler were concerned.

December 31, 1937, the circuit court cause, on motion of Kitchens, was transferred to equity. June 24, 1938, all causes were consolidated. All of the Ben Wheeler heirs or their successors in interest, joined in the actions or were brought into the cases. Approximately thirty pleadings were filed.

Kitchens pleaded (1) the two-year statute of limitations, (2) the five-year statute, (3) the seven-year statute, and (4) laches. As to the 18-acre tract, Magnolia Grocer Company pleaded adverse possession for seven years under color of title.

The lower court held that at the time of his death in 1917 Ben Wheeler was the owner (and in possession as his homestead) of the 65-acre tract, but had not acquired title to the 18-acre tract by adverse possession. It was the chancellor's view that Wheeler's possession, although sufficient in time, was coupled with an intention not to claim farther than the true boundary of the land he had purchased; that the Wheeler children inherited from their father, subject to the homestead rights of such as were minors; that Kitchens, as a result of his foreclosure suit, had acquired the interests of Wesley Wheeler and Buck Wheeler, amounting to a one-sixth interest plus a one-sixty-sixth interest as heirs of their brother, Dan Wheeler (this latter interest being subject to the dower rights of Dan Wheeler's widow, Eva); that the remaining Wheeler heirs, in addition to the several one-twelfth interests inherited by each from Ben Wheeler, acquired a 1/132 interest as heirs of their brother, Dan Wheeler, each interest being subject to the dower rights of Eva; that by reason of his relationship to the parties as mortgagee, Kitchens' purchase at the clerk's tax sale was a redemption for the benefit of all parties in interest, and that Magnolia Grocer Company acquired title to the 18-acre tract by adverse possession. Title accordingly was quieted in Kitchens to a 1/6 interest plus a 1/66 interest (subject to the dower rights of Eva Wheeler) in the 65-acre tract. As to the 18-acre tract, title was quieted in Magnolia Grocer Company.

The court further found that certain of the Wheeler heirs had made conveyances of their interests in the 65-acre tract. These were sustained.

Kitchens appealed. The Wheeler heirs and Magnolia Grocer Company cross appealed.

The record affords convincing proof of the diligence and skill of counsel. They have left no appropriate source of information unexplored in the search of proof to establish their respective contentions.

Bearing upon the age of Adie Wheeler (youngest child of Ben Wheeler) much testimony pro and con was introduced. From the conflicting contentions the chancellor found that Adie attained his majority January 1, 1932. This finding is not contrary to a preponderance of the evidence. That date marked expiration of the homestead estate in the Ben Wheeler lands. Termination of the estate was prerequisite to a right of entry in favor of the Wheeler heirs by reason of their estates of inheritance, for the homestead estate and the estate of inheritance are incapable of merger. Kessinger v. Wilson, 53 Ark. 400, 14 S.W. 96, 22 Am. St. Rep. 220; Shapard v. Mixon, 122 Ark. 530 184 S.W. 399; Sheppard v. Zeppa, Trustee, 199 Ark. 1, 133 S.W.2d 860. Until there was such right of entry there was no right of action. The latter comes into being with and results from the former. Hayden v. Hill, 128 Ark. 342, 194 S.W. 19, and cases there cited.

The plea of the two-year statute of limitations is unavailing to Kitchens because at the time he purchased at the tax sale he was attorney for Buck Wheeler and Wesley Wheeler, who were co-tenants with their brothers and sisters in the ownership of such lands as their father had at the time of his death. Likewise, as the holder of the two deeds of trust given to secure his fee, appellant had an estate in the lands with the Wheeler heirs by reason of his fiduciary relationship as attorney and because of his interest as mortgagee. His purchase at the tax sale, in effect, was a redemption; and his tax deed could not sustain a claim of adverse possession without more forcibly asserting his alleged hostile purposes and bringing them to the attention of those who were interested in the property with him. Clements v. Cates, 49 Ark. 242, 4 S.W. 776; Ross v. Frick Company, 73 Ark. 45, 83 S.W. 343.

For the same reason the plea of the five-year statute of limitation was untenable. [This statute, because of its peculiar phraseology, begins to run on the day of the sale, and can begin at no later date. Under the facts in Kessinger v. Wilson, supra, if the five-year statute of limitations could have started when the homestead estate expired and the estate of inheritance came into being, it would have constituted a good defense. In the instant case five years had not elapsed at the time Adie Wheeler became of age January 1, 1932].

The plea of the seven-year statute must be disregarded, the litigation having been initiated December 12, 1936, or within seven years from January 1, 1932, which was the...