Parham v. Dedman

• Decision Date: 10 December 1898
• Citation: 48 S.W. 673,66 Ark. 26
• Parties: PARHAM v. DEDMAN
• Court: Arkansas Supreme Court

48 S.W. 673

66 Ark. 26

PARHAM v. DEDMAN

Supreme Court of Arkansas

December 10, 1898

Appeal from Dallas circuit court, MARCUS L. HAWKINS, Judge.

STATEMENT BY THE COURT.

On June 7, 1893, appellees filed their complaint in ejectment in the Dallas circuit court against R. W. Parham and Sam Coleman alleging that they were the owners in fee simple and entitled to the possession of "that part of the S. 1/2 of the N.W. 1/4, sec. 27, t. 10 S., r. 14 W., lying east of the. Little Bay road, except such part of one square acre on which Parham's mill stands as is north of said creek and east of said road, said mill house being in the center of said square acre." The complaint further alleges that "situate upon said lands belonging to plaintiffs is a two-roomed dwelling house inclosed with a fence, embracing about one-third of an acre, more or less. Said house is about 90 yards west or northwest of said mill house, and east of the Little Bay road." Plaintiffs deraign title to the house and land as follows: (1) On July 28, 1880, defendant R W. Parham, and wife, by deed of that date, duly acknowledged and executed, conveyed to T. J Barner, amongst other lands the S. 1/2 of the N.W. 1/4, sec. 27, t. 10 S., r. 14 W except that part being west of the Little Bay road (about 12 acres, more or less), also one acre on which our steam mill stands,"--which parts are reserved to the grantor. (2) On May 25, 1884, said T. J. Barner and wife, by their deed of that date, duly acknowledged and recorded, conveyed in fee to Win. H. Marshall, Jr., amongst other lands, the following: The S. 1/2 of the N.W. 1/4, sec. 27, "except that part lying west of the Little Bay road (about 12 acres more or less), also one acre on which the steam mill stands." (3) On March 25, 1890, said Win. H. Marshall, Jr., and his wife, by their deed of that date, duly acknowledged and recorded, conveyed in fee to M. M. Duffie and R. H. Dedman (the plaintiffs) one-half interest in these, among other, lands, to-wit: "All that portion north of Mill Creek and east of the Little Bay road, in the N. E. 1/4 of the S.W. 1/4, and the S. 1/2 of the N.W. 1/4 of sec. 27, t. 10 S., r. 14 W., * * * except such part of one square acre as would lie north of Mill Creek, taking Parham's steam mill for the center of said acre, said mill being on the bank of said creek." (4) On December 16, 1890, said Wm. H. Marshall, Jr., and his wife, by their deed of that date, duly acknowledged and executed, conveyed to said M. M. Duffie and R. H. Dedman, one-half interest to the following lands (amongst others): "All that portion north of Mill Creek and east of the Little Bay road, in the N. E. 1/4, S.W. 1/4, and S. 1/2, N.W. 1/4 sec. 27, t. 10 S., r. 14 W., * * * except such part of one square acre as will lie north of Mill Creek, taking Parham's steam mill as the center of said acre, said mill being on the bank of said creek." The complaint closes with the allegations that plaintiffs have title and right to immediate possession of the lands and tenements in suit; that defendant is and has been in unlawful possession thereof, to the damage of plaintiffs, etc. The four deeds referred to in the complaint were filed as Exhibits "A," "B," "C" and "D," and they appear in the transcript.

Defendant Coleman answered separately, disclaiming title to the land in suit, and alleging that he was the tenant of defendant Parham.

The appellant, R. W. Parham, answered in substance as follows: (1) He admits the facts of the execution of the deeds referred to and exhibited with complaint. (2) He denies that he is in unlawful possession of the premises, or that he owes plaintiff $ 100 or any other sum as rent for said premises. He alleges that he is "now and always has been" the owner of the premises in suit; that there was an understanding between himself (Parham) and Barner (his vendee), at the time of his execution to him of the deed marked Exhibit "A" to complaint, that the acre reserved therein should be so laid off as to cover and embrace the house and grounds in controversy, as well as the steam mill of defendant. (3) He alleges that at the time of the reservation of the one acre in his deed to Barner, the house and land in controversy was and has ever since been in the actual, adverse and notorious possession of defendant; wherefore he pleads the seven years statute of limitation. (4) He alleges that during the past three years, while in possession of the land, he had made valuable improvements upon the land to the amount of $ 57.50. He concludes with a prayer for judgment for (a) possession of land or (b) the value of improvements by him placed upon the property and the declaration of a lieu therefor, in the event the court should award the possession to plaintiffs.

On June 20, 1894, the cause was tried before the court sitting as a jury. The court found for the appellees, Dedman and Duffie, and rendered judgment in their favor for recovery of the property claimed, and for damages for the detention thereof.

Parham filed a motion for a new trial, which was overruled, to which he excepted, and appealed to this court. There were instructions below, but they were not excepted to. One of the grounds of the motion for a new trial is that the court erred in its finding of facts.

Reversed and remanded.

R. C. Fuller, for appellant.

The court erred in finding that the acre should be laid out in a square. This finding, not being supported by the evidence, was error. 33 Ark. 651; 2 Ark. 360; 5 Ark. 407; 6 Ark. 89; 20 Ark. 638; 34 Ark. 338. Appellant has title by virtue of his adverse possession. 33 Ark. 633; 30 Ark. 640; 38 Ark. 181. The court erred in making and refusing declarations of law.

E. B. Kinsworthy and Jas. H. Stevenson, for appellee.

The bill of exceptions is insufficient. The bill of exceptions and not the judgment entry, should contain the record of the saving of exceptions to the overruling of the motion for new trial. 44 Ark. 411; 28 Ark. 450; 30 Ark. 585, 43 Ark. 394; 31 Ark. 725. No exceptions being saved to the declarations of law or fact, all objections thereto are waived. 8 Enc. Pl. & Pr. 157, 166, 255 and 278; 60 Ark. 256-258; 38 Ark. 246; 41 Ark. 535; 36 Ark. 451. Nor can such objection be raised for the first time by motion for new trial. 8 Enc. Pl. & Pr. 279; 45 Ind. 400; 91 Ky. 406. The legal effect of the deed describing...