Sadler v. Campbell

• Decision Date: 28 November 1921
• Docket Number: 9
• Citation: Sadler v. Campbell, 236 S.W. 588, 150 Ark. 594 (Ark. 1921)
• Parties: SADLER v. CAMPBELL
• Court: Arkansas Supreme Court

236 S.W. 588

SADLER v. CAMPBELL

150 Ark. 594

No. 9

Supreme Court of Arkansas

November 28, 1921

Appeal from Yell Chancery Court, Dardanelle District; Jordan Sellers, Chancellor; reversed in part.

Decree affirmed.

Davis & Bohlinger, Parker & Lee and Evans & Evans, for appellants.

Mrs Wooten never acquired any title to the lands involved. On the death of Ruth Ann Keywood, these lands, inherited by her from her father, ascended to the nearest lineal ancestor in the paternal line, if living, and if dead, to his collateral heirs, and did not vest in the heirs of Ruth Ann's mother. Therefore, neither the Price nor the Vicker heirs inherited any interest. Kirby's Digest, § 2645; Id. § 2636, clause 3; Id. § 2646; 15 Ark. 555.

She acquired no title by the order of the circuit court allotting to Sarah Price half of the land involved in this suit because, first, the land in section 14 was never mentioned in the partition proceedings; second, the title never having been put in issue, that order did not vest title nor color of title in her. 96 Ark. 89; Thompson, Title to Real Property § 670; 70 Ark. 432; 71 Id. 544. Third, Mrs. Wooten was dead at the time the allotment was made in the name of Sarah Price, and the allotment was therefore a nullity. 36 Ark 456. Fourth, the order of partition was void, and no title could be based upon it. 15 Cyc. 42, note 61; 3 Johns 459; 26 Barb. 499; 12 S.W. 784; 23 Cyc. 926, 931; 5 Am. Eng. Enc. of L. 1st Ed., 432; 17 Id. 1st Ed., 810; 23 Cyc. 919; Id. 963; Id. 1073, 1074; 48 Ark. 151; 101 Ark. 390; 60 Id. 369; Kirby's Digest §§ 5771, 5772.

At no time during the life of Mrs. Wooten was she seized of an estate of inheritance in the Keywood land, nor had she at any time a right to the possession of the freehold. Her husband, therefore, acquired no curtesy right in that land. 64 Ark. 357; 4 Am. & Eng. Enc. of L. 1st Ed., 961, 963.

Appellee is barred by the statute of limitations. Her right of action, if any, accrued at the date of the death of Newton Wooten, and, that right not having been asserted within seven years of his death, it is barred. Kirby's Digest, § 5056.

Appellee is not an heir of Newton Wooten. If he inherited from his mother, the title ascended at his death to his mother's heirs as prescribed by § 2645, Kirby's Digest. As to Mrs. Wooten's heirs see Kirby's Digest §§ 2636, clause 3, 2646, 2648. The nearest lineal and paternal ancestor of Mrs. Wooten was Isaac Price, her father. He being dead, the estate, if any, was transmitted through him to his only daughter, Mrs. McCrackin, and not to the heirs of James Vickers nor to the heirs of the mother, Mrs. Vickers. 15 Ark. 555, 591. Mrs. Campbell, the appellee, being of the half blood in the maternal line, is postponed to the paternal line. Id.

The burden was on appellee to show her title. Kirby's Digest § 2742. It is not true, as she alleged, that both parties trace title to the same source.

Perry, who held under color of title, by virtue of a warranty deed from Mrs. McCrackin and her husband and W. P. Wooten, acquired title by adverse possession, and Sadler likewise acquired title by adverse possession from the date of Perry's deed in 1891 to the time this suit was instituted.

If appellee was entitled to judgment, then, under the allegations of the answer, not denied by the plaintiff, the defendants were entitled to judgment for improvements, and possession should not have been awarded until said cost was paid. Kirby's Digest, § 2754; 48 Ark. 183; 120 Id. 620; 64 Id. 645.

Hays & Ward, for appellee.

It having been proved that the plaintiff and the defendants deraign title from the same source, to-wit: Sarah Price Wooten, defendants cannot assail that title, and plaintiff is not bound to trace title beyond the common source. Even if the partition proceeding in the circuit court was a nullity, defendants cannot question it. 41 Ark. 21; 44 Id. 517; 109 Id. 500; 137 Id. 170; 106 N.C. 553; 11 S.E. 322; 54 Ga. 689; 7 A. L. R. 860; 145 U.S. 367; 21 S.W. 299.

Appellants are concluded by the judgment in partition. C. & M. Dig. § 8108.

Even without a judgment of court dividing the lands, the parties themselves having agreed upon the partition, and each having gone into possession, and the same having been acquiesced in for fifty years, appellants are now estopped to deny such division. 84 Ark. 584; 121 Id. 197; 77 Id. 309.

Notwithstanding the deed of W. P. Wooten to J. K. Perry purported to carry the fee simple title in the lands, Perry acquired thereby only the right of possession thereof for the lifetime of Wooten. 35 Ark. 84; 43 Id. 427; 58 Id. 510; 117 Id. 371; 126 Id. 1; 60 Id. 74.

Appellee is not barred. The statute does not run against the reversioner until the death of the life tenant. 35 Ark. 90; 44 Id. 490; 58 Id. 510; 60 Id. 7. The possession of the life tenant or his grantee is not adverse to the reversioner or remainderman. 58 Ark. 510; 128 Id. 342; Smith v. Maberry, 148 Ark. 216.

W. P. Wooten held the lands, not adversely to, but in subordination to, the rights of appellee. 97 Ark. 33; 33 Id. 633; 42 Id. 118; 58 Id. 142.

As to the heirs of Newton Wooten and of his mother, the statutes referred to by appellants are not applicable; but the inheritance goes in accordance with § 2645, Kirby's Digest, being § 3480, C. & M. Digest; 129 Ark. 7; Id. 573.

Appellants, without having made proof supporting the allegations as to betterments, were not entitled to judgment therefor. 13 Ark. 88; 41 Id. 394.

OPINION

WOOD, J.

This is an appeal from a decree of the Yell Chancery Court in favor of the appellee against the appellants. The decree adjudged that the appellee was the owner and entitled to the possession of an undivided one-fourth interest in the S 1/2 of the SE 1/4 of section 15, (designated in the record and hereafter called the "Keywood Place") and the SW 1/4 (fr.) of section 14 in township six north, range 19 west and the accretions thereto. The decree also awarded the appellee judgment in the sum of $ 700 as her portion of the rents and profits with interest thereon at the rate of six per cent. per annum from the rendition of the decree, less $ 19.50, taxes for the years 1919 and 1920. While the decree awards to the appellee an undivided one-fourth interest in the SW fr. 1/4 of section 14, and the accretions thereto, the appellee, in her brief, has abandoned here her claim to this tract, for she says that "by the judgment of the circuit court of Yell County rendered in 1870 to Evaline Vickers and James Vickers jointly were set apart the N 1/2 of the SW 1/4 of section 36, T. 6 N. R. 20 W. This was the Tipton tract, being seventy-four acres, * * * * and to Laura McCrackin and Sarah Price, sisters, jointly, the commissioners set apart the S 1/2 of the SE 1/4, section 15-6-20, known as the "Keywood tract, being sixty-six acres." Again she says: "This Keywood tract is the land involved in this suit."

The appellee instituted separate actions against the appellants, one in the chancery court, September 19, 1919, and the other in the circuit court of Yell County. The purpose of these actions was to have the appellee adjudged the owner and entitled to the possession of the lands in controversy. The action at law was transferred to the chancery court and consolidated with the cause pending in that court, and the consolidated cases proceeded to a trial and decree in the chancery court.

The appellee alleged in her complaint, among other things, that she and the appellants deraigned title from a common source as follows: "That the original owners of said lands from whom plaintiffs and defendants deraigned title were Laura Vickers and Miss Ruth Ann Keywood; that Laura Vickers was the mother of the following children, who were her heirs at law, her husband being dead at the time of the partition of her lands: 1st. Lavina Price, who married E. L. McCrackin. 2nd. Sarah Price, who married W. P. Wooten. 3rd. James Vickers, who died without issue. 4th. Evaline Vickers, this plaintiff, who married W. S. Campbell in January, 1874, and since and now is, a married woman. 5th. Ruth Ann Keywood, who with her mother was the owner of said lands; that Ruth Ann Keywood was never married, died in 1867, about eighteen years of age, without issue, leaving the first four children, her sisters and brother of the half blood on her mother's side as her only heirs at law; that, on the death of Laura Vickers and Ruth Ann Keywood, said lands descended in equal parts to Lavina McCrackin, Sarah Price, James Vickers, and plaintiff, who held same as tenants in common.

That at the November term, 1870, of the chancery court of Yell County, Arkansas, Lavina McCrackin, Sarah Price, James Vickers and Evaline Campbell filed a petition for the partition and division among them of said lands, and other lands, alleging that they were the only heirs at law of Laura Vickers and Ruth Ann Keywood, both deceased, who at the time of their death were owners of said lands, and the court appointed commissioners to partition said lands among the four tenants in common."

Then follows an allegation that the lands were partitioned by the circuit court of Yell County, and the title to the lands vested in fee simple in Lavina McCrackin and Sarah Price, giving to each an undivided one-half interest. The complaint then alleged that Sarah Price married W. P. Wooten after the lands had been set apart to her as above; that one child, Newton Wooten, was born to them; that Mrs. Wooten died in 1871 intestate, leaving surviving an infant son, Newton Wooten, and her husband, W. P. Wooten; that at the time of her death she was the owner of an undivided half interest in the lands which descended to her son, Newton Wooten, subject to the curtesy of her husband, W. P. Wooten;...