Landon v. Morris

• Decision Date: 01 April 1905
• Citation: 86 S.W. 672,75 Ark. 6
• Parties: LANDON v. MORRIS
• Court: Arkansas Supreme Court

86 S.W. 672

75 Ark. 6

LANDON v. MORRIS

Supreme Court of Arkansas

April 1, 1905

Appeal from Sebastian Circuit Court in Chancery, Fort Smith District, STYLES T. ROWE, Judge.

Reversed.

Reversed and remanded.

C. E Warner, for appellants.

Edwin Hiner, for appellee.

OPINION

MCCULLOCH, J.

Appellee filed his complaint in equity against appellants claiming title to an undivided one-third of the real estate described, alleging tat appellants own the other two-thirds, and praying for partition. The defendants answered, denying that plaintiff had any title to or interest in the lands.

Appellants invoke the rule, established and repeatedly adhered to by the decisions of this court, that partition cannot be had, in a court of equity, of lands held adversely. Criscoe v. Hambrick, 47 Ark. 235, 1 S.W. 150; Moore v. Gordon, 44 Ark. 334; London v. Overby, 40 Ark. 155; Byers v. Danley, 27 Ark. 77.

There is, however, no showing, either in the pleadings or proof, that the land in question is held adversely, or that it is actually occupied by any one.

No issue was presented by the pleadings except as to the title of the plaintiff. The land was originally owned by one C. M. Landon and appellants, E. J. Landon and H. E. Landon, as equal tenants in common. The plaintiff alleges in his complaint that he purchased the interest of C. M. Landon at execution sale under a judgment against him, and received the sheriff's deed therefor. He exhibits with his complaint the deed from the sheriff which recites a sale under a judgment and execution against the C. M. Landon Milling Company, and the deed conveys "all the right, title and interest of the said C. M. Landon Milling Company in and to the above and foregoing described real estate."

The plaintiff also introduced in evidence the record of the judgment and the execution under which the land was sold. It shows a judgment rendered by a justice of the peace in favor of C. E. Stewart against C. M. Landon, doing business as C. M. Landon Milling Company, for the amount of the note sued on. After issuance of execution and nulla bona return thereon, a certified transcript of the judgment was filed in the office of the clerk of the circuit court as a judgment of the circuit court; and execution was issued by the clerk against C. M. Landon Milling Company. C. M. Landon filed his schedule, claiming this and other property as exempt from sale under execution, and supersedeas was duly issued by the clerk, but afterwards, on motion of the execution plaintiff, was quashed by the circuit court, and a new execution was issued against the C. M. Landon Milling Company. The levy and sale were made under this execution. No testimony was introduced at the hearing of this cause below except the sheriff's deed exhibited with the complaint and the transcript of the judgment and execution and other proceedings thereunder.

The sole question presented for our consideration is whether the sheriff's deed, reciting a sale of the "right, title and interest of the C. M. Landon Milling Company" under the execution against that name is operative as a valid conveyance of the title of C. M. Landon. No effort was made in this suit to reform the deed, if that could have been done, and the court below did not, by its...