Landman v. Fincher

Decision Date20 June 1938
Docket NumberNo. 4-5117.,4-5117.
Citation119 S.W.2d 521
PartiesLANDMAN v. FINCHER et al.
CourtArkansas Supreme Court

Lamoin Oldham, of Tulsa, Okl., and E. F. McFaddin, of Hope, for appellant.

Will Steel, of Texarkana, and McRae & Tompkins, of Prescott, for appellees.

HUMPHREYS, Justice.

The question involved on this appeal is whether appellant is barred by the seven years statute of limitations or laches from recovering an undivided one-third interest in 240 acres of land in Nevada county which was owned by her grandfather, Dennis Watts, at the time of his death and who died intestate in 1889 leaving surviving him his widow, Letha Watts, and three children, Mary Watts, Jennie Watts and Dave Watts. After Dennis Watts died the widow and three children resided upon the lands. These parties were negroes. Sometime in 1890 Mary Watts married a negro preacher by the name of Landman and they left the day after the wedding to reside in Redland, Indian Territory. In 1892 Landman wrote to Dave Watts that Mary, his wife, died in childbirth leaving a child. Shortly after he received the letter from Landman Dave Watts received a letter from a woman by the name of Dora Green from Ft. Smith stating that she had in her possession the child that was born to Landman's wife; that Landman was dead and that if he would send her $60 to pay his funeral expenses she would send him the child. Dave Watts answered her letter stating that if she would send the child to Camden and tell him what train it would be on he would send her $60. He and his mother went to Camden and remained three days, meeting every train that came to Camden, but the child did not come; that he wrote the woman again asking why she had not sent the child but heard nothing more from her; that he concluded there was no child and that the woman was trying to hold him up for $60; that he never heard what became of the child until a short time before her heirship in the land came up which was perhaps in November 1936.

The widow of Dennis Watts remained upon the land until her death in 1917. Prior to her death in the year 1913 she conveyed her undivided interest as wife of Dennis Watts in said lands to Dave Watts. After purchasing his mother's undivided interest he mortgaged a two-thirds interest in the land to W. M. Fincher & Son to secure an indebtedness he owed them. In 1920 he purchased the undivided interest of his sister, Jennie, in said lands and obtained a deed from her thereto misdescribing the lands as to the range number and in 1922 he obtained another deed from her correcting the misdescription. C. C. Fincher, the appellee in this case, purchased the mortgage from W. M. Fincher & Son and advanced Dave Watts other amounts in money, goods, etc., and took a mortgage from Dave Watts on a two-thirds interest in said lands and other lands he owned. At the time this mortgage was given Dave Watts was under the impression that he owned the entire interest in the tract of land having purchased his mother's interest and his sister's interest therein, and believing that the child born to his sister, Mary Elizabeth Landman, was not in existence. C. C. Fincher explained that the reason the mortgage conveyed a two-thirds interest instead of the whole interest was that his nephew prepared the second mortgage, copying the description from the first mortgage Dave Watts gave to W. M. Fincher & Son; that Dave Watts intended to give him a mortgage on the entire interest in the 240 acre tract.

After the death of Dave Watts' mother he moved off the tract of land and rented it to a man by the name of Eason who remained on it for one year. He then made a conditional sales contract of it to A. R. Merrida who moved upon it and who failed to make his payments and rented it from him until he sold the land to C. C. Fincher paying him a third and a fourth of the crops as rent. C. C. Fincher did not foreclose his mortgage against Dave Watts nor take possession under it nor collect rents as mortgagee. Dave Watts owed him $7,000 and sold him the 240 acre tract for $2400 or $10 an acre and he gave him credit on his indebtedness for that amount. This was in 1923 and Dave Watts and wife executed a warranty deed to C. C. Fincher for the 240 acre tract. C. C. Fincher recorded his deed and took possession of the land and rented it to A. R. Merrida from year to year for a cash rental. A. R. Merrida attorned to C. C. Fincher and has remained as his tenant upon the land since that date and is still residing upon it. A. R. Merrida testified that during all these years C. C. Fincher had claimed the entire tract of land as his own. The record reflects that he paid all the taxes, collected all the rents, had a roof put on the house, built a garage on the land, fenced all the land that needed fencing for pasture, cut timber from the land, kept the bushes sprouted off and cultivated all the tillable land; that he cleared fifteen additional acres of the land; that he sold an 80 acre tract of the land to his son who was unable to pay for it and deeded it back to him; that he sold an oil lease upon it in 1923 and kept all the money; that he sold two oil leases in 1925 upon the land and kept all the money; that he sold an oil lease on the land in 1936 and kept all the money; that he made a royalty deed in 1936 upon the land and kept all the money. In all these oil leases and royalty deeds C. C. Fincher warranted the title and all of them were placed on record. At the time Fincher bought the land it was not worth exceeding $10 an acre but in 1936 oil was discovered near it and it became very valuable worth perhaps as much as $100,000 or more. After the oil lease had been made to Benedum-Trees Oil Co., the attorneys in examining the abstract discovered that Dennis Watts died owning the land leaving a daughter who had married a preacher by the name of...

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