McCombs v. Wall
| Decision Date | 08 April 1899 |
| Citation | 50 S.W. 876 |
| Parties | McCOMBS v. WALL. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Ashley county; Marcus L. Hawkins, Judge.
Action by J. A. Wall against W. F. McCombs. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
R. E. Craig, for appellant. J. G. Williamson, for appellee.
On the 13th day of November, 1895, Mrs. J. A. Wall instituted an action against W. F. McCombs to recover possession of a certain part of the south half of the northeast quarter of section 9 in township 14 S., and in range 4 W. She stated in her complaint that Wiley J. Cammack, being seised and possessed of the land, bargained, sold, and delivered it to J. E. Ketchens on the 27th of November, 1873, and on the same day undertook to convey it to Ketchens by deed, but failed to describe it correctly; that Ketchens took possession of it on the same day, and held actual, adverse, continuous, peaceable, open, notorious, and uninterrupted possession thereof from that time until on or about the 1st day of July, 1879, when he departed this life, intestate, leaving her, the plaintiff, his only heir at law; that upon the death of Ketchens, her father, she took possession of the land, and held actual, peaceable, uninterrupted, continuous, adverse, open, and notorious possession thereof until some time in January, 1895, when the defendant unlawfully ousted her and took possession of the same. The land is described in the deed executed by Cammack to Ketchens as follows: "A certain tract of land situate and lying in the county of Ashley, state of Arkansas, bounded and described as follows, to wit: Lying on the southwest side of the public road known as the `Hamburg and Grand Lake Road,' and northwest of lane, northern part of the northeast quarter of section nine (9), and corners in section ten, taking one and a half acres, more or less, in township seventeen, range four west, containing ninety acres, more or less."
The defendant answered, and averred that he was the owner of the land sued for and entitled to the possession of the same. He alleged that W. J. Cammack conveyed the land to him on the 30th of October, 1890; that the land was laid off and set apart to him by commissioners appointed by the Ashley circuit court; that he and his predecessors in the title had held open, continuous, adverse, notorious, and peaceable possession of the same for more than 20 years; and that he and plaintiff, by her husband and agent, entered into a written agreement on the 15th of November, 1894, to meet on said land in January, 1895, and cause the division lines between them to be "run off" and established by a competent surveyor, which they did, and agreed that the lines so established should be and remain the division lines between their lands, and they then and there, each with the consent of the other, took possession of their respective land up to the line so established, and have so held ever since.
The land in controversy was described in the deed executed by Cammack to McCombs as the "south part of the northeast quarter of section nine" in township 17 S., and in range 4 W. Other lands were conveyed by the same deed, and all the real estate conveyed was described as containing 310 acres, and being the same lands which the Ashley circuit court ordered to be divided between Wiley J. Cammack and Rosamond Sherrer by decree rendered on the 21st day of April, 1888, in an action wherein A. W. Cammack and Rosamond Sherrer were plaintiffs and Wiley J. Cammack and others were defendants.
The agreement mentioned in the answer was as follows:
After filing his answer, the defendant amended it, and alleged that, while the deed executed by Wiley J. Cammack to J. E. Ketchens purported to convey the land mentioned in the pleadings, the grantor therein had no title to convey; that a suit was instituted on the 21st day of December, 1881, by A. W. Cammack and other heirs of Lewis Cammack, deceased, in the Ashley circuit court, against Wiley J. Cammack and others; that it was alleged in the complaint in that action that Wiley J. Cammack acquired and held the lands in controversy in this action and other lands described, under conveyances executed to him, in trust for the heirs of Lewis Cammack, deceased; that Amy J. Ketchens was a daughter of Lewis Cammack; that Amy J. had died intestate, leaving Mrs. J. A. Wall, the plaintiff in this action, who was her daughter, her heir at law; that Mrs. Wall was an heir of Lewis Cammack in right of her mother, and was a party to the action instituted by A. W. Cammack and others as before stated; that a decree was rendered in the latter action by which it was adjudged that Wiley J. Cammack had no title to the land which he undertook to convey to J. E. Ketchens in 1873, but that Amy J. Ketchens was entitled to a distributive share in the estate of Lewis Cammack, deceased, and that Mrs. Wall, as her heir, was entitled to the same; that the court assigned to Mrs. Wall, by said decree, "that part of the northeast quarter of section nine in township seventeen south, and in range four west, lying southwest of the Hamburg and Grand Lake road (a portion thereof being in section ten south and east of said road) and northwest of the lane, and one and a half acres in the southwest quarter of section ten, and containing ninety acres of land"; and that commissioners were appointed by said decree, who proceeded under the orders of the court and set apart to Wiley J. Cammack the south half of the northeast quarter of section 9 in township 17 S., and in range 4 W., the land in controversy, which he, Wiley J. Cammack, afterwards conveyed to McCombs, the defendant in this cause.
Plaintiff, Mrs. Wall, recovered in this action 14.52 acres of the land in controversy.
Evidence was adduced in the trial of this cause tending to prove that plaintiff and her father, under whom she claims, held open, actual, continuous, and adverse possession of the land recovered for more than seven years before she was made a party to the action instituted by A. W. Cammack and others or was dispossessed by the defendant, McCombs. The deeds under which each party, respectively, claimed were undisputed. Evidence was adduced by the defendant to show that J. E. Wall, the husband of the plaintiff, acted as general agent in the control and management of her lands and business, and that he entered into the written agreement with McCombs to establish lines as alleged in the answer, and that they met at the time appointed, and a surveyor, acting under the agreement, established divisional lines, and McCombs took possession accordingly, and thereby dispossessed the plaintiff of the land recovered in this action. The defendant also introduced in evidence certified copies of the orders and decree in the action instituted in the Ashley circuit court on the 21st day of December, 1881, by A. W. Cammack and others, but failed to introduce as evidence any part of the pleadings or depositions therein, or copies of the same. In this copy it appears that Alice Ketchens, so called in the decree, who is now Mrs. Wall, was made a party to that action some time in August, 1886, and that a decree was rendered therein, the material part of which is in the words and figures following:
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