Nichols v. Shearon

• Decision Date: 16 April 1887
• Parties: NICHOLS <I>v.</I> SHEARON.
• Court: Arkansas Supreme Court

Page 167

4 S.W. 167

NICHOLSv.

SHEARON.

Supreme Court of Arkansas.

April 16, 1887.

Appeals from circuit court, Conway county.

Sam. W. Williams and Sol. F. Clark, for appellants. Ratcliffe & Fletcher, for appellees.

SMITH, J.

William Carter Shearon died in the year 1863, leaving a widow and two young children. He was the owner of two parcels of land, each containing 160 acres, and upon one of which he resided with his family. He was also possessed of some personal property; but this was in part destroyed by the soldiery, the civil war being then flagrant, and the remainder was consumed in the sustenance of his surviving family. Administration of his estate was granted in October, 1865, to Samuel H. Nichols, his brother-in-law, and also a creditor. At January term, 1866, of Conway probate court, the administrator obtained an order for the sale of the real estate of his intestate for the payment of debts. The two tracts were sold in solido to A. P. Nichols, a brother of the administrator, for $700. In course of a year or two, A. P. Nichols conveyed the homestead tract to Samuel H. Nichols, and the remaining tract to William L. Nichols, another brother. Out of this probate sale have grown three lawsuits, which we shall dispose of in one opinion.

1. Soon after Shearon's children became of age, they brought an action of ejectment for the last-mentioned tract, against the administrator and heirs of William L. Nichols, claiming by inheritance from their father, who had died seized and in possession. The defendants set up the title derived from the administrator's sale, and evidenced by the conveyances of Samuel H. Nichols, as administrator, to A. P. Nichols, and of A. P. Nichols to William L. Nichols. The issue was submitted to a jury, who found for the plaintiffs, and assessed the excess of rents and profits over taxes and improvements at $167.50. The defendants on the same day (March 7, 1885) filed a motion for a new trial, but withdrew it in consideration that the plaintiffs waived the damages assessed. And in pursuance of this agreement, no judgment for mesne profits was entered. On the twenty-second of April, being a day of the same term, the defendants refiled their motion for a new trial; but the court denied it. There was no error in this. April 22d must be considered as the true date of the motion. Section 5153 of Mansfield's Digest requires such an application, except it be for newly-discovered evidence, to be made within three days after the verdict or decision, unless unavoidably prevented. No showing is made why the motion was not made earlier. And, besides, the defendants had, for a consideration of which they received the benefit, abandoned in open court their right to insist on their motion. They are estopped by the record and by their own agreement to reopen the case; there being no effort to show that they were deceived or misled by any artifice.

2. In the evidence of title produced by the defendants in the ejectment suit, there was a misdescription of part of the land; it being described as in a different township from that in which it really lay. The error began in the administrator's petition for license to sell, and was continued in the order of sale and report thereof, and in the subsequent conveyances. While the ejectment cause was still pending and undetermined below, the heirs of William L. Nichols filed a bill on the chancery side of the same court, against the plaintiffs in the ejectment, seeking, among other things, to correct the mistake, and to reform the deeds. This bill was dismissed, after judgment had been rendered in the action at law. The bill was confessedly a mere mode of defense to the action of ejectment; its object being to control the proceedings in that case. But parties cannot litigate about the same subject-matter, both at law and in chancery, at one and the same time. The whole controversy must be brought out in one suit. A defendant must make all of his defenses, of whatsoever nature they may be, in the action in which he is sued. And if some of the issues raised are exclusively or more properly cognizable in another forum, he must move a transfer to the proper docket. This was the plain course for the heirs of William L. Nichols to pursue. And as the judgment against them in the ejectment could not be annulled or modified by any decree in the equity suit, except for a defense which had arisen or been discovered since its rendition, nothing remained except to dismiss the bill. Mansf. Dig. § 4932; Reeve v. Jackson, 46 Ark. 272.

3. About the same time that the action of ejectment was begun, the heirs of William Carter Shearon also filed a bill against Samuel H. Nichols, attacking his sale and conveyance of the other tract, which had belonged to their ancestor, and the subsequent reconveyance thereof by A. P. Nichols to the defendant. It was alleged that this tract, being the homestead of the deceased, was exempt from sale for the payment of his debts, during the minority of his children. And it was further alleged...