Lane v. Stitt And Reed

• Decision Date: 15 March 1920
• Docket Number: 256
• Citation: 219 S.W. 340,143 Ark. 27
• Parties: LANE v. STITT AND REED
• Court: Arkansas Supreme Court

219 S.W. 340

143 Ark. 27

LANE v. STITT AND REED

No. 256

Supreme Court of Arkansas

March 15, 1920

Appeal from Drew Chancery Court; E. G. Hammock, Chancellor; affirmed as to Stitt; reversed as to Reed.

Decree affirmed in part, reversed in part and cause remanded.

Henry & Harris, for appellant.

The cause did not stand for trial on the day it was heard and decree entered. The case was prematurely heard. Kirby & Castle's Digest, § 7631; act 290, Acts 1915, § 12; K. & C. Dig., §§ 6111-6112; 126 Ark. 25; 127 Id. 102.

2. Title should not have been invested in appellee Stitt. 39 Ark. 580; 42 Id. 215; 109 Id. 281; Kirby's Digest, § 2745. There was no evidence that title was in Stitt's father at the time of his death.

3. The judgment against appellant is grossly excessive.

J. W Kimbro, for appellee Reed.

1. The cause properly stood for trial on the day it was heard. Act 290, Acts 1915, § 1.

2. It was the duty of appellant to defend her title and make her warranty to appellee Reed good. Stitt should not be allowed to redeem under the proof, but if allowed to redeem there was no error to vesting title in Stitt as against Mrs. Lane and John H. Reed. Reed's title was good by adverse possession except as against one under disability. To allow Stitt to redeem without settling the matter of title as to all parties would mean more litigation. Where equity takes jurisdiction for one purpose, it should retain it and settle all the rights of the parties. 105 Ark. 558; 75 Id. 52; 114 Id, 206; 113 Id. 100.

3. The findings of the chancellor should not be disturbed unless against the clear preponderance of the evidence. 72 Ark. 67; 95 Id.; 99 Id. 428; 125 Id. 572.

E. E Hopson and R. W. Wilson, for appellee Stitt.

The case was not prematurely heard and the decree is right. 41 Ark. 153.

OPINION

SMITH, J.

Appellee Stitt instituted this action soon after he came to full age of maturity to redeem from a tax sale certain lands which had been sold during his minority. He claimed title to the land by inheritance from his father. Appellant, Mrs. M. A. Lane who was defendant below, is Stitt's grandmother, and she conveyed the lands to Stitt's father in his lifetime. She purchased the land at a tax sale and sold and conveyed the same, together with other lands which she owned, to John H Reed, who was made a defendant in this action. The tract of land for which Stitt seeks redemption amounts to 120 acres in Drew County, and the deed executed by appellant to Reed conveyed this tract claimed by Stitt and also 100 acres additional in the same county. Reed filed an answer denying the allegations of the complaint bearing on the right of Stitt to redeem the land, and also made his answer a cross-complaint against appellant for recovery of damages for breach of the covenant of warranty. The deed executed by appellant to Reed recited a cash consideration of $ 1, but the proof in the case shows that the real consideration was the, payment of the sum of $ 400, as evidenced by Reed's note to appellant, and also a used automobile, which Reed testified was valued at the sum of $ 1,500.

The cause was heard by the chancellor on a day of the regular term, but in the absence of appellant or her attorneys, and a decree was rendered in favor of Stitt for the redemption of said lands from the tax sale, and also in favor of Reed against appellant for the damages which were fixed at what was found to be the consideration for the deed, $ 1,932, including the alleged value of the automobile, apportioned to the relative quantity of land embraced in the deed from appellant to Reed.

It is contended in the first place that the decree should be reversed for the reason that the cause was prematurely heard by the chancellor in the absence of appellant and her attorney. Appellant appeared in court after rendition of the decree and moved to set it aside, but the court overruled the motion.

The right of Stitt to redeem the land from, the tax sale is established beyond dispute by the pleadings as well as the proof in the case, and the error in prematurely hearing the cause would not be material. Appellant's own testimony shows that Stitt claims title through his father under a deed from appellant. Therefore, the court was correct in divesting the title under the tax sale and reverting the title in Stitt.

So far as related to the controversy between appellant and Reed, we have reached the conclusion that the cause should be reversed on other grounds; therefore, it is unnecessary to pass on the question of...