Morrow v. James

• Decision Date: 13 July 1901
• Citation: 64 S.W. 269,69 Ark. 539
• Parties: MORROW v. JAMES
• Court: Arkansas Supreme Court

64 S.W. 269

69 Ark. 539

MORROW v. JAMES

Supreme Court of Arkansas

July 13, 1901

Appeal from Crittenden Circuit Court in Chancery FELIX G. TAYLOR Judge.

STATEMENT BY THE COURT.

This suit is in ejectment by appellant for certain lands described in the complaint. There was judgment for the appellee, from which appeal was taken to this court. The appellant claimed by virtue of the eight clause of the will of his grandfather George S. Fogelman, which reads as follows: "Item 8. As to the balance and remainder of my estate, real, personal and mixed, after paying off my debts and the above specified legacies, I do hereby will, give and bequeath to my beloved daughter, Mississippi Morris, wife of Charles S. Morris, of said county, to be hers during her natural life, and then to belong to the heirs of her body; it being my intention to settle the same upon my said daughter and the heirs of her body." The appellant is an heir of the body of Mississippi Morris, and claims one-third of the land in controversy.

The appellee answered, denying the title of the appellant, and setting up title in himself. He alleges that the interest of the appellant was sold by her guardian, under orders of the probate court of Crittenden county; that he was the purchaser; and that the sale was approved by said court. He next alleges that appellant had no interest in the land to be sold; that, under the will, Mississippi Morris took an absolute estate. The answer relies upon seven years' adverse possession, and avers that he purchased 147 acres of fractional section three, on November 3, 1879, and the balance of said section on June 30, 1880, under tax sale, and avers that he has had adverse possession since said dates. Pleads the statute of limitations of seven years, of five years and of two years. The answer also alleges that after the appellant became of age she ratified and confirmed the sale of said lands as made by her guardian, B. I. Olmstead.

Judgment reversed and cause remanded.

Norton & Prewett, for appellants.

The order of confirmation is void as to appellant, because the record shows that neither she nor her guardian was before the court. 1 Black, Judg. § 242; 55 Ark. 562; 56 Ark. 419; 2 How. 43.

F. H Heiskell, of Tennessee, for appellee.

As the lands were not purchased at tax sale, the defendant is protected by the statute of limitations of five years. Sand. & H. Dig., § 4818; 53 Ark. 400; 60 Ark. 167; 72 Ia. 24; 75 Ia. 253. The order of the probate court is not open to such collateral attack as is here attempted.

OPINION

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

We are of the opinion that there is no sufficient evidence to show that appellant had ratified and confirmed the sale of her interest in the land in controversy by Olmstead, her guardian. We think that the record shows that appellee undertook and was obliged to redeem the land from taxes, and could not therefore set up the tax purchase in bar of plaintiff's right of action.

Before the statute of limitations of five years could apply, there must have been confirmation of the sale made under the order of the probate court. Without confirmation, there was no sale. Maxwell v. Campbell, 45 Ind 360; Titman v. Riker, 43 N.J.Eq. 122, 10 A. 397; Mulford v. Beveridge, 78 Ill. 455; McVey v. McVey, 51 Mo. 406; Watts v. Cook, 24 Kan. 278; Flemming v. Roberts, 84 N.C. 532; Wells v. Rice, 34 Ark. 346; and...