Tompkins v. Tompkins
| Decision Date | 06 February 1922 |
| Docket Number | 132 |
| Citation | 237 S.W. 103,151 Ark. 572 |
| Parties | TOMPKINS v. TOMPKINS |
| Court | Arkansas Supreme Court |
Appeal from Sharp Chancery Court, Southern District; H. J. Radcliff special Chancellor; reversed and affirmed.
STATEMENT OF FACTS.
Appellees brought this suit in equity against appellant to cancel and set aside deeds made to him to two tracts of land, and for an accounting of the rents and profits of the same. Appellant defended on the ground that he had title to the lands in question. The material facts necessary to decide the issues raised by the appeal, briefly stated, are as follows:
W. M Tompkins died in Sharp County, Arkansas, in the year 1900 owning several tracts of lands in said county, including the two forty-acre tracts which are the basis of this lawsuit. He left surviving him Lurena A. Tompkins, his widow, and appellees, who are his children and heirs at law. Yancey Tompkins was a minor at the death of his father, and was only twenty years of age when this suit was brought on the 5th day of April, 1916. In February, 1900, W. M. Tompkins entered, as an additional homestead under the laws of the United States forty acres of land involved in this controversy, which was situated adjoining the land on which he lived with his wife and children and which constituted his homestead. The residence of W. M. Tompkins was near the boundary line between the tract on which it was erected and the forty-acre tract in controversy called the homestead tract. The boundary between the two tracts ran through his yard and up to the porch of his dwelling house. His garden, orchard, a well, and some outhouses were erected on the forty-acre tract in controversy. Tompkins entered the forty acres in controversy as an adjoining homestead in February before he died in May 1900. During the latter part of the year 1902, Lurena Tompkins, the widow of W. M. Tompkins, deceased, married T. J. Tompkins, a nephew of her first husband. T. J. Tompkins was appointed administrator of the estate of W. M. Tompkins, deceased, in December, 1902, and as such administrator took charge of all the real and personal property belonging to his decedent's estate. On the 27th of June, 1904, T. J. Tompkins was duly appointed guardian of the estate of Yancey Tompkins and Bama Tompkins, minor children of W. M. Tompkins, deceased. W. M. Tompkins resided on his homestead at the time of his death. His widow and minor children continued to reside there until she married T. J. Tompkins in the latter part of 1902. After that time they all resided there until Lurena Tompkins died in 1912. In April, 1906, Lurena Tompkins, the widow of W. M. Tompkins, deceased, perfected her proof to the homestead on the homestead forty-acre tract in controversy and secured a patent thereto from the United States. The said tract of land was forfeited for nonpayment of taxes for the year 1908, and T. J. Tompkins became the purchaser at the tax sale held in June, 1909. He obtained a certificate of purchase, and a clerk's tax deed was issued to him on the 15th day of June, 1911. He testified that subsequently to his purchase of the land at tax sale his wife made a deed to said land to him. The testimony on this particular point will be stated more at length in the opinion.
The record shows that W. M. Tompkins at the time of his death owned other lands which he had purchased from Wm. McKinley, and the testimony on this point will be stated more particularly under an appropriate heading in the opinion. Forty acres of these lands were sold at tax sale in 1906, and T. J. Tompkins became the purchaser thereof at said sale. Subsequently he received a clerk's tax deed therefor.
W. M. Tompkins left surviving him his widow and five children. One of his daughters sold her interest in his estate to her mother and the other four children. In July, 1902, Dora Porter, another one of his daughters, sold and conveyed her interest in his estate to T. J. Tompkins. Dean Tompkins, one of the children of W. M. Tompkins, has been dead five years and died at the age of twenty-three years.
The testimony with regard to the rents and profits from the two forty-acre tracts in controversy will be stated and referred to more in detail in the opinion.
It was decreed in the chancery court that Yancey Tompkins recover from T. J. Tompkins the sum of $ 651.97 as a trust fund derived from the rents and profits of the two tracts of land in controversy. It was further decreed that Yancey Tompkins have a two-thirds interest in the two tracts of land in controversy, and that T. J. Tompkins be decreed a one-third interest therein.
T. J. Tompkins has duly prosecuted an appeal to this court.
Decree affirmed.
John C. Ashley, for appellant.
The lands in NE. NW. 31-17-4 were entered from the United States by W. M. Tompkins, who died shortly thereafter, and his widow made final proof and received patent therefor in her own right, as she had the right to do, and the land was not a part of the estate of W. M. Tompkins.
As to the lands in SW. SE. 19-17- 4, no color of title is shown to have been in W. M. Tompkins, and appellees have failed to establish title in themselves. 57 Ark. 97.
If appellees had title to the lands in controversy they are barred by the statute of limitations. C. & M. Digest, 6947; 59 Ark. 460; 53 Ark. 418; 58 Ark. 151; 92 Ark. 30. As to the second tract described above, appellees (with the exception of Yancey Tompkins) are also barred by the seven-year statute. C. & M. Dig., 6942.
The court erred in holding appellant liable to Yancey Tompkins for any sum. Upon the filing of his final report as administrator, guardian and curator, he was discharged, and there is no showing that the sums adjudicated in favor of appellee were not included in that report. The probate court judgment is not subject to collateral attack. 92 Ark. 611; 73 Ark. 612; 52 Ark. 341.
David L. King, for appellee.
Appellee is seeking to enforce a legal remedy, and the pleas of laches and limitation are wholly inapplicable. 100 Ark. 399; 70 Ark. 371.
Appellant was a tenant in common, and his redemption from the tax sales only gave him the right to demand contribution from his co-tenants, not title to the property. The trustee of an express trust cannot acquire title at a tax sale. 84 Ark. 557; 129 Ark. 149; 78 Ark. 111; 30 Ark. 95; 49 Ark. 242; 39 Ark. 573; 69 Ark. 539; 75 Ark. 184; 139 Ark. 206.
As to the tract known as the homestead forty, this continued to be the homestead of the widow and children after the death of W. M. Tompkins, 37 Ark. 316; 29 Ark. 633. Homestead is not subject to partition. 31 Ark. 145; 51 Ark. 429. The statute of limitation did not run against appellee, who was a minor. The possession of one holding under a life tenant is not adverse to the remainderman until the death of the life tenant. 58 Ark. 510; 129 Ark. 342.
The money judgment in favor of appellee should have been for a larger sum even than that awarded him.
OPINIONHART, J., (after stating the facts).
We will first discuss the rights of the parties to what is called the additional forty acres. It will be noted that W. M. Tompkins had his dwelling house and homestead on an adjoining forty acres of land. He entered the forty acres in question as an additional homestead under the laws of the United States in February, 1900, prior to his death in May of the same year. He dug a well and used the forty-acre tract in controversy as a part of his homestead. After his death his widow made final proof and obtained a patent from the United States to the forty acres in controversy in 1906.
In McCune v. Essig, 199 U.S. 382, 50 L.Ed. 237, 26 S.Ct. 78, the Supreme Court of the United States held that the widow of the entryman is first entitled to complete the entry and obtain a patent, and that a State law is not competent to change this provision and give the children of the entryman an interest paramount to that of the widow. So it will be seen that when the patent was issued to Lurena Tompkins in 1906, she took an absolute title to the land free from any claim of her children. After the patent was issued to her the land was forfeited to the State for non-payment of taxes, and T. J. Tompkins became the purchaser at the sale. He now claims title by virtue of a clerk's tax deed which was afterwards issued to him. At the time T. J. Tompkins purchased the land at the tax sale he was the husband of Lurena Tompkins, and they occupied the land jointly as her homestead.
In Herrin v. Henry, 75 Ark. 273, 87 S.W. 430, the court said that the rule is thoroughly settled that a husband or wife can not obtain a tax title in opposition to the other when they are in joint possession of the land. This is a salutary rule, and prevented T. J. Tompkins from obtaining any title to the homestead forty-acre tract by virtue of his purchase thereof at the tax sale after his wife had obtained a patent to the land from the United States.
Again it is contended by counsel for appellant that the latter obtained title to the forty-acre homestead tract by purchase and conveyance from his wife. In this contention we think counsel is correct. It appears from the record that the dower interest of Lurena Tompkins in the estate of W. M. Tompkins deceased, was set off to her in 1910. According to the testimony of T. J. Tompkins,...
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