Shirk v. Williamson

• Decision Date: 06 October 1888
• Parties: SHIRK v. WILLIAMSON
• Court: Arkansas Supreme Court

9 S.W. 307

50 Ark. 562

SHIRK v. WILLIAMSON

Supreme Court of Arkansas

October 6, 1888

APPEAL from Clay Circuit Court in chancery, W. H. CATE, Judge.

STATEMENT.

The appellee filed her complaint in equity against the appellant Shirk, and Theodore B Mills, to set aside as fraudulent, a deed made by Mills, conveying certain lands to Shirk and to quiet her title to the lands which she claimed as devisee of her deceased husband, James M Williamson. The complaint alleges that the deed was made under a power of attorney executed by the plaintiff and her husband, authorizing Mills to sell the lands but giving him no authority to mortgage them; and that the conveyance to Shirk, although in the form of a deed, was in fact a mortgage made to secure Mill's individual debt. The plaintiff also alleged that she was in possession of the lands and exhibited with her complaint the will under which she claimed title. The first paragraph of Shirk's answer contains a general denial in the following form: "Defendant * * * answering to plaintiff's amended complaint says, that he denies each and every allegation therein contained except the alleged making of the power of attorney by herself and husband, James M Williamson, to the defendant Mills, and the due execution of a deed thereunder to this defendant." Shirk also denied the alleged possession of the lands by the plaintiff. The other issues formed by the pleadings and the effect of the evidence are sufficiently stated in the opinion. The decree granted the relief sought by the complaint, and Shirk appealed.

Affirm.

S. M Chapman, of Missouri, for appellant.

1. Appellee claims as devisee of her deceased husband, and no proof, as required by law, was adduced to sustain her claim. Mansf. Dig., secs. 6508, 7534; 3 Cranch, 319; 9 Wheat, 565; 9 Wall. 394.

2. Appellant is estopped by her instrument declaring that Mills was the owner of an undivided half of said lands and by her silence and acquiescence for so long a time. See 3 Hill, N.Y. 221; Herman Est., secs. 333, 611, 619; 100 U.S. 578; 33 Cal. 449; 33 Cal. 459; 2 Smith Lead. Cas, 6th Ed., 693, 820; 85 N.Y. 609.

3. No action to quiet title or remove a cloud, will lie without proof of possession. If not in possession, the remedy is by ejectment. 23 Ark. 746; 52 Mo. 272; 86 Mo. 329; 16 N.Y. 519; 18 How, 263.

4. Plaintiff is barred by limitation. Mansf. Dig., sec. 4471.

E. R. Lentz, of Missouri, for appellee.

1. The will was set out as an exhibit to the complaint and offered in evidence. Mansf. Dig., secs. 6510, 6531-2; 38 Ark. 477.

2. There is not a scintilla of evidence to show that either James M. Williamson or appellee ever executed the papers purporting to vest a half interest in the lands in Mills. Their execution being denied on oath, it devolved on appellant to prove their execution.

3. The lands in this case were wild and uncultivated, and no proof of possession was necessary. Possession is deemed to be with the Igal title. 6 Pet., 743; 2 Wheat., 29; 8 Cowen, 589; Angell on Lim. 6th Ed., sec. 384; Tyler on Adv. Enj., p. 852; 44 Ark. 437.

4. There is no question of limitation in the case, as appellant, in his answer, admits that he is out of possession. 24 Ark. 392; Angell on Lim. 416.

OPINION

COCKRILL, C.J.

Both parties claim title through James M. Williamson--one by deed, the other by devise.

I. The plaintiff's claim of a devise, which was particularly alleged in the complaint, was not specifically denied by the answer, and was not, therefore, put in issue. The formal general denial goes for naught. Guynn v. McCauley, 32 Ark. 97; Hecht v. Caughron, 46 Ark. 132. The effect of the answer was to admit that whatever interest James M'. Williamson had in the lands at his death passed to the plaintiff by the will, and to tender the issue of a superior title in the defendant. It was not necessary, therefore, for the plaintiff to adduce proof that she had succeeded to whatever title James M. Williamson had at his death.

II. The appellant, who was the defendant below, claimed under a conveyance executed in the lifetime of James M. Williamson by one T. B. Mills, as his attorney. Mills held a power of attorney from Williamson authorizing him to sell the lands. The conveyance he executed is in form a deed, but the answer virtually concedes what all the proof tends to establish that it was in reality a mortgage made to secure Mills' individual debt to the defendant. As the...