Trotter v. Neal

• Decision Date: 10 March 1888
• Citation: 7 S.W. 384
• Parties: TROTTER <I>et al.</I> <I>v.</I> NEAL <I>et al.</I>
• Court: Arkansas Supreme Court

Page 384

7 S.W. 384

TROTTER et al.v.

NEAL et al.

Supreme Court of Arkansas.

March 10, 1888.

Appeal from circuit court, Scott county; R. B. RUTHERFORD, Judge.

Geo. W. Williams, for appellants. Cuval & Cravens, for appellees.

BATTLE, J.

This action was brought by appellants against appellees, to recover one undivided half of certain lands in Scott county. Both parties claim under Joseph J. Tomlinson, deceased. Appellants claim under his will, and appellees that he, in his life-time, gave it to his son, Wiley A. Tomlinson, and that Wiley died, and it was sold to pay the debts against his estate, and purchased by Calvin H. Robertson, who thereafter died intestate, leaving appellees his only heirs. Much evidence was introduced in the trial to show that the land in controversy was given by Joseph J. to his son, Wiley; and that Wiley took possession of it, and thereafter held, improved, and occupied it adversely. Evidence was also introduced tending to prove that an action was instituted in the Scott circuit court by Sarah Clark against Samuel H. Payne, as administrator of Wiley A. Tomlinson, deceased, and appellants, as Wiley's heirs; that Sarah Clark alleged in her complaint in that action that she was a creditor of Wiley; that he died seized in fee-simple of the land in controversy; that Payne had fraudulently procured an order of the probate court to sell the land, and had sold it to Vandever, who, without paying for it, conveyed it to Payne; and asked that the sale to Vandever and the conveyance to Payne be set aside, and that the lands be sold under an order of the circuit court, for the purpose of paying Wiley's debts. It was proven that the records containing the orders of the court in the action had been burnt. A certified copy of what purported to be an order made in the action instituted by Clark, by BEN. R. DAVIDSON, acting special judge by consent of parties, was read as evidence over the objections of appellants. It is stated in the copy that a report of a commissioner appointed to sell the land in controversy came on for confirmation, from which it appeared that the land had been sold in conformity to a decree made at a prior term, to Calvin H. Robertson, and that the sale was approved and confirmed; and it was ordered and adjudged that all the right, title, claim, and interest which Wiley A. Tomlinson had in and to the land be divested out of his heirs and vested in Robertson, his heirs and assigns forever. Although the statute of limitations was pleaded by defendants, the question raised thereby was not submitted to the jury, but the court instructed the jury substantially as follows: "That the proceedings of a court of record and of general jurisdiction are presumed to be regular, and that all the requirements of the law were complied with by such court in any proceeding had before it;" and that, "if the jury believe from the evidence that the land in controversy has been sold by a commissioner of this court as the property of Wiley A. Tomlinson, deceased, to pay the debts of said estate, under and in pursuance of a former order and decree of this court, made and rendered in a proceeding then and there pending, and that the plaintiffs in this action, or those from or through whom they claim, were parties to said suit, and had legal notice of the pendency of said suit, or appeared and answered thereto; and that said Calvin H. Robertson became the purchaser of said land at said sale, and said sale and purchase was by the order of said court confirmed, and said Robertson thereby invested with title to said land; and ...