McFarlane v. Grober

• Decision Date: 19 April 1902
• Citation: 69 S.W. 56,70 Ark. 371
• Parties: MCFARLANE v. GROBER
• Court: Arkansas Supreme Court

69 S.W. 56

70 Ark. 371

MCFARLANE v. GROBER

Supreme Court of Arkansas

April 19, 1902

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

Affirmed.

STATEMENT BY THE COURT.

Emile Grober was the owner of a tract of land in Sebastian county containing about 200 acres, which she had purchased from the United States. She was an unmarried woman, and died in February, 1867, intestate and without issue, leaving surviving her father, John C. Grober, and a sister and brother named Theresa and Rhinehold Grober, respectively. After the death of Emile Grober, her father took possession of the land, and claimed to be the owner thereof. He sold the land to Malinda Jackson, and afterwards in 1879 at her request conveyed the same to Americus McKissack. In 1883 McKissack conveyed the land to W. E. Gunter, and in 1899 Gunter conveyed the land to R. W. McFarlane, who now claims to be the owner thereof.

John C Grober died 13th of February, 1892. Afterwards Theresa and Rhinehold Grober were advised that they were the owners of the land, and Rhinehold on the 2d day of February, 1899 conveyed his interest in the land to his sister, Theresa Grober, and she on the 26th day of April, 1899, brought this action in ejectment to recover the land. The defendant, R. W. McFarlane, appeared and answered. He sets up only two defenses to the action: First, that John C. Grober was, at the death of his daughter, the owner of the land in fee, having received a deed from Emile Grober conveying it to him; second, that plaintiff was barred by laches, statute of limitations and adverse possession. In addition to the title to the land above mentioned, defendant also claimed that he held title to 40 acres of the land by virtue of a purchase by Gunter of a tax title to the same from the state and a conveyance from Gunter to him. This is the substance of the answer, though it is set out at some length, and accompanied by a motion to transfer the case to the equity docket, which was granted. Plaintiff excepted to the order transferring the case to the equity docket.

On the hearing of the court found that the defendant was the owner of the 40-acre tract of land claimed by him under a tax title, that the interest in the land claimed by plaintiff through Rhinehold Grober was barred by statute of limitations, and that, with the exception of that portion of the land held by the defendant under a tax title above referred to, the plaintiff and defendant were each owners of an undivided half of the land, and gave judgment accordingly. Both parties appealed.

Judgment Affirmed.

T. B. Pryor, Hill & Brizzolara, for appellant.

The test of evidence is the consistency of the narration and the possibility or probability of the matter related. 2 Rice, Ev. § 321. The testimony of a witness cannot be arbitrarily disregarded. 67 Ark. 514; 66 Ark. 441. The findings of a chancellor are not conclusive. 55 Ark. 116; 43 Ark. 318; 41 Ark. 294. The probate court has no jurisdiction over matters affecting title to real estate between the administrator and other parties. 15 Ark. 381; 34 Ark. 564. Order of distribution of real estate without notice to heirs is void. 10 Ark. 201. The rule that a tenant cannot dispute the title of the lessor has no application to life estates. 71 N.Y. 190. If life tenant conveys a fee, he forfeits his tenancy, and remainderman can enter. 1 Wash. Real Prop. 91,92. The statute generally begins to run at death of tenant. 58 Ark. 210; 60 Ark. 70. Possession for the statutory period without notice of life estate is good title. 2 Pingrey, Real Prop. § 1185. Remaindermen have the right to protect their reversion during continuance of the life estate. 1 Pingrey, Real. Prop. § 294; 38 Ark. 91; 39 Ark. 434. Appellee is barred by laches. 55 Ark. 85; 91 U.S. 587; 67 Mo. 187-8; 47 Mich. 79; 145 U.S. 368; 124 U.S. 183; 168 U.S. 685; 61 Ark. 575.

Ben T. Duval, for appellee.

The statute of limitations does not apply to married women. Sand. & H. Dig., § 4815. The same was not repealed by act of April 28, 1873. 42 Ark. 305; 42 Ark. 357; 47 Ark. 558. The statute of limitations does not run against a remainderman until death of tenant. 60 Ark. 70; 42 Ark. 357; 1 Wash. Real. Prop. (5th Ed.), 132; Newell, Ejectment, 764; Tyler, Ejectment, 923; 58 Ark. 510. He cannot be guilty of laches until that time. 154 Ill. 498; 4 Ballard, Real Prop. 258. Deed conveys only grantor's interest. 1 Wash. Real Prop. 92. Possession of life tenant or his grantor is not adverse to remainderman during existence of life estate. 58 Ark. 510; 35 Ark. 84; 15 Am. Dec. 433; 39 Am. Dec. 165; 43 Ark. 427. Appellant cannot plead statute of limitations. 49 Ark. 207; 44 Ark. 48. Parties ignorant of their rights cannot be charged with laches. 85 Va. 429. Ignorance of rights must be explained. 89 Ala. 428; 1 Ballard, Real Prop. 613. Equity favors the diligent. 76 Wis. 662; 137 U.S. 556; 138 U.S. 480; 46 N.J.Eq. 489. Laches may be imputed to a married woman. 55 Ark. 85; 48 N.J.Eq. 219, 638; 2 Ballard, Real Prop. 674. When laches will bar right of recovery. 53 N.J.Eq. 513; 4 Ballard, Real Prop. 787; 5 Ballard, Real Prop. 831; 120 U.S. 377-87; 124 U.S. 495. In estoppel by silence there must be a duty to speak. 63 Ark. 300; 50 Ark. 128; 39 Ark. 131; 55 Ark. 426; 36 Ark. 114; 46 Ark. 117; 51 Ark. 61; 24 Ark. 255; Bigelow, Estop. (3d Ed.), 18. It is the duty of life tenant to pay taxes. 109 Mich. 415; 97 Tenn. 46; 42 S.W. 401; 41 S.W. 937.

OPINION

RIDDICK, J., (after stating the facts.)

This was an action of ejectment, which was, on motion of the defendant, transferred to the equity docket, and tried as an equity case by the judge of the circuit court. But an examination of the defense set up by the answer shows, as we think, no sufficient ground for the transfer of the case of the equity docket. The defenses set up in the answer were legal defenses. The answer presented no defense calling for equitable relief, and the case should have been tried at law. But, though the plaintiff objected to the transfer of the case to the equity docket, she does not now press that point as ground for reversal. The only substantial thing the transfer to equity effected was to bring the issues of fact presented before the judge for trial, instead of before a jury, and the case is now very much in the attitude of a case at law tried before the judge sitting as a jury, and afterwards appealed to this court.

We have given the case careful attention, and our conclusion is that the finding of the circuit judge to the effect that Emile Grober was the owner of this land at her death, that under the law her father took only a life estate, and that after his death the title vested in Theresa Grober and Rhinehold Grober, the brother and sister of Emile Grober, is sustained by the law and the evidence. Kelly's Heirs v. McGuire, 15 Ark. 555.

The testimony of Mrs. Matilda Jackson bearing on the execution of a deed from Emile to her father is not convincing to our minds, and we think the circuit judge was justified in rejecting it.

As Theresa Grober was a married woman at the time of her sister's death, and remained so up to the time of the bringing of her action of ejectment, we think that it is clear she was not barred by the statute of limitations.

The doctrine of laches, invoked by the defendant, does not apply to a case where the plaintiff is not asking any equitable relief but seeks only to enforce a plain legal title in a court of law, and where her action is not barred by the statute of limitations in reference thereto. Rowland v. McGuire, 67 Ark. 320, 55 S.W. 16; Wilson v. Nichols, 72 Conn. 173, 43 A. 1052; Broadway Nat. Bank v. Baker, 176 Mass. 294, 57 N.E. 603; Wood, Limitations, § 60, note a.

But, whatever view may be taken of that question, the facts and circumstances in proof, we think, fully justified the circuit judge in overruling this defense and finding in favor of the plaintiff on that issue. This disposes of the questions presented by the appeal of the defendant.

As to the cross appeal, we must also say that no ground for reversal is shown. The 40 acres claimed by the defendant were, it is true, forfeited to the state for nonpayment of taxes after the death of Emile and before the expiration of the life estate held by John C. Grober. But neither McFarlane nor Gunter, who purchased this tax title from the state, were in possession of the land, or had any claim to it at the time it was forfeited, nor were they under any obligation to pay the taxes for which it was sold. Long after this tax sale and...