Rowland v. Wadly

• Decision Date: 07 March 1903
• Citation: 72 S.W. 994
• Parties: ROWLAND v. WADLY et al.
• Court: Arkansas Supreme Court

72 S.W. 994

ROWLAND v. WADLY et al.

Supreme Court of Arkansas.

March 7, 1903.

Appeal from Green Chancery Court; Edward D. Robertson, Chancellor.

Action by S. W. Rowland against William Wadly and others. Decree for defendants, and plaintiff appeals. Reversed.

J. D. Block and F. H. Sullivan, for appellant. Luna & Johnson, for appellees.

BUNN, C. J.

This is a suit by appellant against appellees to recover the W. ½ of the S. W. ¼ of section 8, in township 16 north, of range 6 east. The appellant deraigned title through an entry from the state by Thomas Tolbert, and alleged that Tolbert died intestate and in possession of the lands, owning the fee, and that his heirs at law, after his death, conveyed the lands to the plaintiff. In his answer, defendant Scott denied that plaintiff was the owner of the land, and alleged that he himself was in possession of a portion of it. The answer of Wadly and wife, Exor Wadly, denied that the plaintiff was owner of the land, and denied that he was entitled to the possession; and they further state that Thomas Tolbert entered the lands, and that when he died he left surviving him a widow and some minor children, and that at the time of his death he occupied the land as his homestead, and that his entire estate did not exceed the value of $300, and therefore it vested in his widow, who conveyed the land in controversy afterwards to John Roberts, and he to William T. Roberts, from whom the defendant Exor Wadly inherited the premises. The answer also alleged that the land was sold on the 22d day of November, 1869, for the nonpayment of the taxes of 1868, and one C. H. Bornhill became the purchaser at such sale, and received his certificate, and assigned the same to John Roberts, to whom the county clerk conveyed by his tax deed of the 29th of October, 1872, and he conveyed to William T. Roberts, from whom said appellee Exor Wadly inherited as aforesaid. The seven-years statute of limitation was also pleaded, and it was alleged that the action was not begun (May 30, 1896) within three years from and after the heirs of Thomas Tolbert, under whom the plaintiff claims, attained their majority. The statute of two years in favor of the tax title was also pleaded, and it was alleged that the lands had not been redeemed from the tax sale within two years after the minor heirs of Tolbert had attained their majority; and two years' possession by defendants after said heirs had attained their majority. Defendants also claimed to have made improvements to the value of $371, and $300 taxes paid, and asked that this be set off against any damage that might be assessed against them in the suit, which was tried in equity. This cause was tried on November 16, 1899, and final decree rendered in favor of defendants, and the plaintiff appealed.

There are two questions in this case. The first is whether or not the act of January 2, 1851 (Laws 1850-51, p. 71), providing that, where the whole estate of a deceased person did not exceed in value the sum of $300, the same should be allowed to the widow, was repealed by the subsequent act of December 8, 1852 (Laws 1852, p. 9), commonly known as the "Homestead Act," in so far, at least, as regards the homestead rights of the minor children, conferred by the latter act.

In Johnston v. Turner, 29 Ark. 280, it was held that, under the homestead act, the homestead estate is created equally for the benefit of...