Polk v. Stephens

• Decision Date: 30 October 1916
• Docket Number: 231
• Citation: 189 S.W. 837,126 Ark. 159
• Parties: POLK v. STEPHENS
• Court: Arkansas Supreme Court

189 S.W. 837

126 Ark. 159

POLK v. STEPHENS

No. 231

Supreme Court of Arkansas

October 30, 1916

Appeal from Clay Circuit Court, Western District; J. F. Gautney Judge; affirmed.

STATEMENT BY THE COURT.

Appellees brought suit in ejectment, claiming to be the owners of certain lands in Clay county, of which it was alleged appellant was in the wrongful possession.

They deraigned title from a deed from their father, Wm. Stephens executed on the 21st day of July, 1898, and alleged that defendant claimed through and under a deed of later date from the same grantor.

Appellant answered denying the allegations of the complaint that the lands were conveyed to appellees by Wm. Stephens on the 21st day of July, 1898, or at any other time and that he was in the wrongful possession thereof. Admitted claiming title under a deed from Wm. Stephens and his wife, executed October 14, 1905, and alleged that the deed under which appellees claimed title was void, the lands conveyed being the homestead of the grantor, and his wife not having joined in the deed thereto as required by law. He then set up the fact that the attempted conveyance by Wm. Stephens of the lands to his wife and children by the said deed was thereunder cancelled as a cloud upon his title by the chancery court of Clay county, after which cancellation he became the purchaser, paying therefor the sum of $ 3,600 and was a bona fide purchaser for value, and entitled to protection as such and that he had paid the taxes regularly thereon since his purchase, etc.

It appears from the testimony that the lands were conveyed by said Stephens to his wife and children by a warranty deed on the 21st day of July, 1898, in which his said wife, Jennie Stephens, did not join as a grantor. That afterwards, in a suit for that purpose against his wife and said children said deed was cancelled as never having been delivered. The lands were then sold and conveyed by Wm. Stephens and his wife by a deed under which appellant claims title, executed on the 14th day of October, 1905.

Maggie Stephens, as guardian of James and Grace Stephens, appealed from said decision of the chancery court, cancelling the deed executed by Wm. Stephens, his said wife and children, and the Supreme Court reversed said decision and held the deed valid. Stephens v. Stephens, 108 Ark. 53.

The cause was remanded with directions to vacate said decree which was done and the complaint dismissed for want of equity, which decree was excepted to by W. D. Polk and L. H Colley, who had filed motions asking to be made party plaintiffs in the cause, which were overruled. Appellant then petitioned for a writ of mandamus against the chancellor to compel him to allow petitioner to be made a party plaintiff in said suit, setting out that at the time of the conveyance from said Wm. Stephens to his wife and children, that the property was a homestead and that his wife had not joined in the conveyance thereof and that petitioner was an innocent purchaser for value. The petition for the writ was denied, and finally disposed of in Polk v. Frierson, 113 Ark. 582.

It appears also that the lands in controversy were the homestead of Wm. Stephens, at the time he conveyed them to his wife and children in 1898 upon his departure for Oregon; that after his return he lived thereon with his wife and children as his homestead until he sold the lands in 1905 to appellee and moved to town. There was also some testimony tending to show that 80 acres of the lands was worth $ 3,000.00.

The court instructed the jury that the conveyance of the lands under which appellees claimed the deed of 1898 was valid, having been made so by a curative act of 1907, notwithstanding the wife failed to join in the conveyance and directed a verdict for an undivided one-half interest in the lands and half the rents and profits for three years, less the cost of taxes and improvements. It also instructed the jury that the question had been determined against Stephens, the record of which case was offered in evidence, that the land in controversy was not the homestead of Stephens at the time of the conveyance, which bound Polk his grantor, thereafter, and excluded all evidence of the value of the improvement thereon. From the judgment on the directed verdict, this appeal is prosecuted.

Judgment affirmed.

J. N. Moore and G. B. Oliver, for appellant.

1. The conveyance to the wife and children in 1898 was absolutely void as to the children because the wife did not join in its execution. Kirby's Digest, § 3901; 57 Ark. 242; 108 Id. 53. And a subsequent abandonment does not cure the invalidity. 57 Ark. 242.

2. Argue that the court erred in its instructions to the jury, but they are not passed upon by the court.

W. E. Beloate and F. G. Taylor, for appellees.

1. There is no proof that the land was a homestead. The burden was on appellant. 67 Ark. 232; 67 Id. 1; 34 Id. 55; Thompson on Homest. and Ex., § 701. But if a homestead, it was a personal privilege which could be waived and Stephens waived it by failure to claim it. 28 Ark. 485; 47 Id. 485; 55 Id. 139. The wife accepted the deed and it was not necessary for her to join--she acquiesced in it.

2. Ap...