Murphy v. Graves

• Decision Date: 25 January 1926
• Docket Number: 116
• Citation: 279 S.W. 359,170 Ark. 180
• Parties: MURPHY v. GRAVES
• Court: Arkansas Supreme Court

279 S.W. 359

170 Ark. 180

MURPHY v. GRAVES

No. 116

Supreme Court of Arkansas

January 25, 1926

Appeal from Ouachita Chancery Court, Second Division; George M LeCroy, Chancellor; affirmed.

Decree affirmed.

G. R Haynie and O. E. Westfall, for appellant.

H. C Compton, T. W. Hardy, Henry Stevens, Pace & Davis, and R. E Wiley, for appellee.

OPINION

MCCULLOCH, C. J.

This appeal is a sequel to the appeal in the case of Hildebrand v. Graves, 169 Ark. 210, 275 S.W. 524. Reference to the opinion in that case is made for a detailed statement of the facts, and it is only necessary to refer to the facts developed in the record after the decree from which the former appeal came.

The appellant, Ben Murphy, was a party-defendant in the cause originally, and there was a final decree against him declaring that he had no interest in the lands in controversy. He was constructively summoned in the case, but did not appear in person, and prosecuted no appeal with the other defendants; however, he appeared within the statutory period allowed for setting aside judgments rendered on constructive service, and there was a retrial of the issues between him and the appellees, who were the plaintiffs below. The action was instituted by appellees against Hilderbrand and others to cancel conveyances of the land executed by appellees to those parties, and appellant Ben Murphy was made a party-defendant on the allegation that he was asserting an interest in the lands, but in fact had none.

All of the parties to the action claimed title under the same source, Larkin Murphy, who was the original purchaser from the United States and died intestate in the year 1878, leaving his widow, Mary Murphy, and two children, Joe and Drucilla. The property constituted the homestead of Larkin Murphy, and was occupied by his widow Mary, after his death, as her homestead. She subsequently married a man named Graves, and there were three children, Luther, Mary and Martha, the issue of that marriage. They were plaintiffs in the trial below and are appellees here.

Appellant was the illegitimate child of a young woman named Hattie Farris, who intermarried with Joe Murphy a few months after appellant's birth. This was in the year 1897, and appellant's claim to an interest in the land is based upon the assertion that Joe Murphy was his father, and that, after having intermarried with Hattie Farris, he recognized appellant as his child. In other words, appellant's claim is based upon the operation of the statute of this State which reads as follows:

"Section 3473. If a man have by a woman a child or children, and afterwards shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate." Crawford & Moses' Digest.

It is seen from the above recital that the title in Larkin Murphy descended upon his death to his two children, Joe and Drucilla, subject to the widow's homestead right of occupancy and her dower right, and that the undivided half interest of Joe Murphy, subject to the aforementioned rights of the widow, descended to appellant if he was legitimatized as an heir under the operation of the statute quoted above.

There was a great mass of testimony introduced in the trial below on the issue as to whether or not appellant was in fact the child of Joe Murphy, and, if he was, whether or not Joe Murphy recognized him as his child after the intermarriage with appellant's mother. After careful consideration of the testimony, we have reached the conclusion that the preponderance of the evidence on this issue is in favor of appellant, and that the court erred in its finding on that issue, but our conclusion upon that issue is not decisive of the whole case, therefore it is unnecessary to set out in detail the testimony upon which our conclusion is based. We content ourselves merely by saying that, after consideration of the testimony, we find that it preponderates in favor of a finding that Joe Murphy was appellant's father, and that shortly after appellant's birth he married appellant's mother and thereafter recognized appellant as his child. The question of the statute of limitation is involved, however, and it becomes necessary to consider the facts with reference to that plea.

In the year 1884 the probate court of Ouachita County, on the application of Mary Graves, widow of Larkin Graves, made and entered an order vesting the title to the lands in said Mary Graves on the ground that the value of the whole estate of Larkin Murphy, real and personal, was less than the sum of $ 300. We decided on the former appeal that this order vesting title in Mary Graves was void, on the ground that the property constituted the homestead of the decedent, and that he left minor children, and that decision is conclusive of the question on the present appeal.

The tract of land in controversy consists of 160 acres, being the south half of the south half of a certain section, and lies in the form of a rectangle. Mary Graves, as we have already stated, continued to occupy the land as her dwelling place and homestead, and she executed to appellee Luther Graves, a son by her last marriage, a deed, or rather two deeds conveying to him the west one-third of the land in controversy, fifty-three and one-third acres. One of these deeds was executed in the year 1905, and the other in the year 1911, and purported to...