Simmons v. Turner

• Decision Date: 17 May 1926
• Docket Number: 365
• Citation: 283 S.W. 47,171 Ark. 96
• Parties: SIMMONS v. TURNER
• Court: Arkansas Supreme Court

283 S.W. 47

171 Ark. 96

SIMMONS v. TURNER

No. 365

Supreme Court of Arkansas

May 17, 1926

Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor reversed.

Judgment reversed, and cause remanded.

D. A Bradham and W. S. Goodwin, for appellant.

Williamson & Williamson, for appellee.

OPINION

WOOD, J.

This action was instituted December 14, 1923, in the chancery court of Bradley County by Mrs. Bessie Turner against George T. Simmons and his wife, Mrs. Beulah Simmons, and J. B. Hurley. Plaintiff alleged in substance that she and Mrs. Beulah Simmons were the owners of an undivided interest as tenants in common of eighty acres of land in Bradley County, which she described; that the defendants were in possession of said lands and claiming to be the sole owners thereof, and had been for three years, and she prayed that certain instruments, copies of which were made exhibits to her complaint, be canceled and set aside as clouds on her title, and that title to the land described be confirmed in the plaintiff and in Beulah Simmons as tenants in common, share and share alike, and that the lands be partitioned between them, and the plaintiff have immediate possession of her share of the lands and a judgment for rents. The defendants demurred, and also moved to dismiss the complaint. The demurrer stated that "the complaint does not state a cause of action in equity," and the motion to dismiss stated that the defendants "are in actual, open, notorious and adverse possession of the lands in suit and actually occupying the same at the present time, and were so occupying the same at the time of the institution of this suit; that the complaint does not state a cause of action cognizable in equity, but does state a cause of action cognizable at law." The demurrer and motion to dismiss were overruled. The defendants then answered denying all the allegations of the complaint.

Samuel C. Brown obtained a patent from the United States Government to one hundred and sixty acres of land in Bradley County, including the eighty acres in controversy. He lived on this land as his homestead until his death. He died intestate, leaving a widow and two daughters. The elder daughter married G. W. Wagnon and the younger married W. C. Carter. Wagnon and his wife had two daughters, Ressie and Beulah. Ressie married Turner, and Beulah married Simmons. At the time of the death of Samuel C. Brown his daughter Turza was a small child, living on the homestead with her mother, Mrs. Samuel C. Brown. The other daughter, Mrs. Wagnon, was living with her husband, G. W. Wagnon, in Calhoun County. After the death of Brown, Wagnon and his wife moved on the homestead of Samuel C. Brown in Bradley County, and lived with and took care of Mrs. Samuel C. Brown and Turza as long as Mrs. Brown lived, and after her death they continued to take care of Turza until she married W. C. Carter and moved on the other half of the 160 acres of the Brown homestead not involved in this action. After the death of Mrs. Brown, Wagnon and his wife continued to live on the 80 acres in controversy until the death of Mrs. Wagnon, and after the death of Mrs. Wagnon, about 1887, Wagnon continued to live on the land until his death on June 24, 1921. Mrs. Ressie Turner and Mrs. Beulah Simmons are the sole and only heirs at law of Mr. and Mrs. G. W. Wagnon, and they, with the children of Mrs. Turza Carter, are the only heirs at law of Mr. and Mrs. Samuel C. Brown. George W. Wagnon executed two warranty deeds to his son-in-law, G. T. Simmons, conveying the north forty-acre tract of the eighty acres in controversy. The first deed was not recorded. The second deed was dated September 29, 1913, and was placed of record. Simmons and his wife still live on this north half of the land in controversy, and have so lived since 1908. At the death of Brown, in 1870, the 160 acres on which he lived as his homestead passed to his widow, Mrs. Samuel C. Brown, for her life, she having a homestead and dower right therein, the reversionary interest in his estate being in Mrs. Wagnon and Mrs. Carter. At the death of Mrs. Brown the fee title vested in the two heirs of Samuel G. Brown, Mrs. Wagnon and Mrs. Carter. After the death of Mrs. Brown the land constituting the original 160 acres was partitioned between Mr. and Mrs. Wagnon and Mr. and Mrs. Carter. Wagnon and wife retained possession of the eighty acres in controversy, and Carter and Mrs. Carter took the other eighty acres not in controversy in this action. At the death of Mrs. Wagnon, Wagnon acquired a life estate in the land in controversy by curtesy, his two children, Mrs. Ressie Turner and Mrs. Beulah Simmons, having the reversionary interest, and at the death of Wagnon, in 1921, the fee title to the land passed to them as tenants in common and as the only surviving heirs of Mrs. Wagnon, who owned the fee to the land. The above is the history of the title in controversy substantially as it is stated by counsel of Mrs. Ressie Turner, and as alleged in her complaint.

On the other hand, the defendants in their answer alleged that Brown gave the lands in question to Wagnon for a good consideration, and placed him in possession thereof; that Wagnon made improvements and had continued in possession for over forty years; that Wagnon did not come into possession of the land by reason of a life estate vested in him by curtesy, but that he acquired the title while Mrs. Brown, his wife's mother, was still living. The defendants claimed the land therefore by adverse possession, and further set up that the plaintiff, having waited until the death of Wagnon to institute the action, was barred by laches and limitation from maintaining the same.

The trial court heard the cause upon the evidence adduced to sustain the contention of the respective parties, and entered a decree canceling the various instruments, copies of which were attached as exhibits to the plaintiff's complaint, and confirming and quieting title to the land in controversy in the plaintiff and the defendant, Mrs. Beulah Simmons, as tenants in common, and directed that the lands be partitioned between them; appointed commissioners to make the partition, and directed that Mrs. Turner and Mrs. Simmons should each have the right to immediate and absolute and unconditional possession of that portion of said land allotted to them on said partition, for which writ of assistance may issue upon the request of the parties interested. The commissioners were also directed to report the value of the permanent improvements and by whom made and the rents of the tract of land for the years 1921 to 1925 inclusive, and the cause was continued as to the rights of the respective parties concerning the rents, improvements and taxes until the same is finally disposed of by the Supreme Court. From that decree is this appeal.

1. The appellee moved to dismiss on the ground that there is no final decree because the court continued the cause for further report of the commissioners as to improvements, rents and taxes. But the decree from which this appeal is prosecuted...