Sansom v. Harrell

• Decision Date: 19 March 1892
• Citation: 18 S.W. 1047,55 Ark. 572
• Parties: SANSOM v. HARRELL
• Court: Arkansas Supreme Court

18 S.W. 1047

55 Ark. 572

SANSOM v. HARRELL

Supreme Court of Arkansas

March 19, 1892

APPEAL from Faulkner Circuit Court, JOSEPH W. MARTIN, Judge.

In 1876 Thaddeus W. Sansom died intestate, leaving surviving a widow and three minor children. At the time of his death he owned and occupied eighty acres of land as a homestead. During the minority of the children the widow presented a petition to the probate court for an order vesting the land absolutely in herself. Finding that it did not exceed in value the sum of $ 300, the court made the desired order. Subsequently, in 1877 the widow conveyed the land to Henry Heinze, and placed him in possession; a year later he re-conveyed it to her. On July 27, 1880, she conveyed and delivered possession of the land to B. F. Stephans, through whom appellee deraigns title.

Two of the minor children died in 1876 or 1877, the other died in 1879. On July 11, 1887, appellants, as heirs of the last mentioned child, brought this suit in ejectment to recover the land. Appellee relied (1) upon the order of the probate court vesting title in the widow, and the mesne conveyances above recited, and (2) upon the statute of limitation of seven years adverse possession. Upon a former appeal (Sansom v. Harrell, 51 Ark. 429) it was adjudged that the first defense was insufficient. A second trial resulted in a judgment for appellee upon the second defense. The question raised upon the appeal is, when did the statute begin to run against appellants?

Judgment affirmed.

E. A Bolton for appellants.

1. The statute did not commence to run until the death of the minor. The widow could not in any way abandon the homestead so as to prejudice the minor's right. 29 Ark. 292; 48 id., 237.

2. At the time of the death of the minor the widow was on the land it was her home, all she had, until she resold it, July 27, 1880, less than seven years before this suit was brought; and the suit is not barred.

Sam Frauenthal for appellees.

The statute commenced to run at the death of James Sansom, the minor, which the clear preponderance of the evidence shows to have been in the fall of 1879. The widow abandoned her right in 1877, by the sale to Heinze. 48 Ark. 230, 237; 29 id., 280; ib., 407; Thompson's H. & Ex., sec. 263; 37 Ark. 283; 48 id., 543. Having once abandoned the right, she could not reclaim it. Thomp. on H. & Ex., sec. 267; 39 Ill. 83; 65 Iowa 533.

2. The burden is on plaintiff to show a suspension of the running of the statute. 53 Ark. 96; 47 id., 121. They have not done so. Full seven years adverse possession was proven.

OPINION

HEMINGWAY, J.

Where a married man, owning a homestead, dies leaving a widow and minor child entitled to hold it as exempt, and the widow claiming to be...