Nicklase v. Dickerson

• Decision Date: 25 June 1898
• Citation: 46 S.W. 945
• Parties: NICKLASE v. DICKERSON.
• Court: Arkansas Supreme Court

46 S.W. 945

NICKLASE v. DICKERSON.

Supreme Court of Arkansas.

June 25, 1898.

Appeal from circuit court, Randolph county; John B. McCaleb, Judge.

Ejectment by Margaret Dickerson against Regina Nicklase. There was a judgment for plaintiff, and defendant appeals. Reversed.

J. C. Hawthorne, for appellant. S. A. D. Eaton, for appellee.

HUGHES, J.

The appellee, on the 7th day of December, 1893, instituted this action in the Randolph circuit court, and alleged that her ancestor, William T. Skinner, died seised and possessed of the N. ½, S. E., N. E. S. W., and W. ½ S. W., section 1, N. W. N. W. section 12, and the N. E. N. E. of section 11, township 18 N., range 2 E., and that he occupied 160 acres thereof as a homestead; that her father had been in actual possession of all the land for more than seven years prior to his death; that James Russell, as administrator of her father's estate, sold and conveyed the lands to one James M. Pennington, who afterwards, through mesne conveyances, conveyed to the appellant. The defendant answered, and denied having information sufficient to form a belief as to whether W. T. Skinner died intestate in February, 1867, and denied that he was at the date of his death either seised or possessed of the lands mentioned in the complaint, or that he was in possession thereof for any period of time; and alleged that she was the owner thereof, and derived title under certain documentary evidence, which she filed as exhibits, and was entitled to retain possession. She denied that she held the lands under a sale made by the administrator of plaintiff's ancestor. She pleaded that she had been in adverse possession of the lands more than seven years next before commencing the suit, and that she had been in possession of a portion of it under a tax deed for more than two years. The defendant, February 7, 1894, filed a motion, in which she denied that she derived title to the lands under a sale made by the administrator of the plaintiff's ancestor, and moved the court to compel the plaintiff to make profert of her title. The court refused to compel the plaintiff to file copies of deeds or exhibits of title, to which rulings exceptions were saved. The plaintiff alleges in her complaint that the defendant claims title to the lands in controversy through the same source as the plaintiff, and contends that the defendant, in her answer, does not deny this. The defendant, in her answer, denied that she derived title from the common source of title. This was not a denial of the allegation of the complaint that the defendant claimed title to said lands through the same source as the plaintiff. But, as it is uncertain whether the defendant intended this as a denial that she claimed title from a common source, and there was no motion to make the answer more definite and certain, the statement in the answer that the defendant denied that she derived title from the common source, we treat it as a denial that she claimed title through the same source as the plaintiff. After the evidence was in, and the court had instructed the jury, they returned a verdict for the plaintiff for all the lands described in her complaint, and the court, after overruling a motion for a new trial, to which the defendant excepted, rendered a judgment in accordance with the verdict, from which the defendant appealed to this court.

The plaintiff filed no deeds or evidences of title with her complaint, and sought to rely upon the fact, which she alleged, that her father was in the actual possession, seised of the land in controversy. There were 280 acres of land described in the plaintiff's complaint, for all which she recovered a judgment. There is no evidence in the record tending to show that the plaintiff's father was ever in possession of any of this land save a part of one 40-acre tract and 4 acres upon another 40...