United States v. 48.9 ACRES OF LAND, ETC.

• Decision Date: 22 June 1949
• Docket Number: Civ. No. 374,391,399.
• Citation: 85 F. Supp. 133
• Parties: UNITED STATES v. 48.9 ACRES OF LAND IN PIKE COUNTY, ARK., et al. UNITED STATES v. 1,907.48 ACRES OF LAND IN PIKE COUNTY, ARK., et al. UNITED STATES v. 2,350.2 ACRES, MORE OR LESS, IN PIKE COUNTY, ARK., et al.
• Court: U.S. District Court — Western District of Arkansas

85 F. Supp. 133

UNITED STATES v. 48.9 ACRES OF LAND IN PIKE COUNTY, ARK., et al.

UNITED STATES v. 1,907.48 ACRES OF LAND IN PIKE COUNTY, ARK., et al.

UNITED STATES v. 2,350.2 ACRES, MORE OR LESS, IN PIKE COUNTY, ARK., et al.

Civ. Nos. 374, 391, 399.

United States District Court W. D. Arkansas, Hot Springs Division.

June 22, 1949.

COPYRIGHT MATERIAL OMITTED

Tom Kidd, Murfreesboro, Ark., for Murfreesboro Lumber Co.

J. W. House, Little Rock, Ark., John Glenn, Mena, Ark., for Mac-Kan Mercury Co., Southwestern Quicksilver Co., and R. B. Carroll.

Witt & Witt, Mt. Ida, Ark., Shaver, Stewart & Jones, Texarkana, Ark., for M. E. Cox and the Cox children.

JOHN E. MILLER, District Judge.

1. On May 10, 1949, by agreement of the parties involved, the above Civil Action No. 374 as to Tract No. 16, and Civil Action No. 391 as to Tract No. 14 and Civil Action No. 399 as to Tract No. 8 were consolidated by order of the Court for the purpose of determining the question of title of the said three tracts existing between the contending claimants.

On August 13, 1948, Civil Action No. 374 was filed for the purpose of acquiring the title to the lands therein described, which includes the SW¼ of the NE¼ of Section 4, Township 7 South, Range 25 West, in Pike County, Arkansas, containing 39.9 acres, more or less, and being designated as Tract No. 16.

On the same date and upon the filing of the Declaration of Taking, the Court entered an order vesting the title of the land in the United States of America, the plaintiff having deposited a sum of money representing, in its opinion, just compensation for the land.

The Petition and the Declaration of Taking designated Murfreesboro Lumber Company as the owner. On January 28, 1949, the defendants — Crown Cox and Mattie Cox, his wife; Dossie Cox and Alma Cox, his wife; Gertrude Cox Rains; Verdis Cox and Lois Cox, his wife; Pauline Cox Robbins; Flora Cox; Eugene Cox and Bessie Cox, his wife; Flora Cox, as guardian of her minor children, C. B. Cox, Jr., Huey Cox and Buster Cox; Roy Cox; Ruthie Cox Priddy; Mittie Cox Jones; Bertha Carter Cox; Nila Cox; Floyce Cox; Bertha Carter Cox, as guardian of her minor children, Juanita Cox, Irene Cox and Fern Cox; Retha Cox Keltgen; Art Cox and Alberta Cox, his wife; and Lillie Young — filed their answer denying that the amount deposited by the plaintiff was just compensation for the lands taken and alleging that they are the owners in fee of the land, Tract No. 16, subject to an estate for the life of Mrs. M. E. Cox, which life estate is vested in the defendants who compose the partnership doing business under the firm name of Murfreesboro Lumber Company.

They further alleged that on January 19, 1911, Charles T. Erwin and his wife, S. J. Erwin, were the owners of said land and on said date executed, acknowledged and delivered their warranty deed conveying the land to "A. J. Cox and M. E. Cox and unto their heirs only forever;" that under the terms of said deed A. J. Cox and his wife, M. E. Cox, became vested of an estate by the entirety for the life of the survivor, who is Mrs. M. E. Cox, her husband having died on November 29, 1947; that under and by virtue of said deed a fee estate in remainder was created and is now claimed and owned by the children of the said A. J. Cox and his wife, Mrs. M. E. Cox, born at the time of the execution of said deed and those born to them subsequently but during the existence of said marital relationship and the lineal descendants of said children as have died.

The deed referred to recites:

"That we, Charles T. Erwin and S. J. Erwin, his wife, for and in consideration of the sum of One Thousand Five Hundred ($1,500.00) Dollars to us paid by A. J. Cox, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said A. J. Cox and M. E. Cox and unto their heirs only forever, the following lands lying in the County of Pike and State of Arkansas, to-wit:

"W½ of NE¼; E½ of NW¼; SW¼ of NW¼ and NW¼ of SW¼ of Sec. 4 and SE¼ of NE¼ of Sec. 5, and SW¼ of SW¼ of Sec. 6, and NE¼ of NW¼ Sec. 7, and also all that part of Lots (2) Two and (3) Three of NW¼ of Sec. 7, lying East of the Little Missouri River. All above land in Township 7 S. R. 25 West, containing 400 acres, more or less. (Except the pine timber heretofore sold to Ft. Smith Gurdon Land and Timber Co.)

"To have and to hold the same unto the said A. J. Cox and M. E. Cox and unto their heirs only forever, with all appurtenances thereunto belonging.

"And we hereby covenant with said A. J. Cox and M. E. Cox and their heirs only that we will forever warrant and defend the title to the said lands against all claims whatever.

"And I, S. J. Erwin, wife of the said Charles T. Erwin, for and in consideration of the said sum of money, do hereby release and relinquish unto the said A. J. Cox and M. E. Cox and their heirs only all my right of dower and homestead in and to the said lands."

On February 7, 1949, the defendants J. W. Anthony, Margaret B. Anthony, in her own right and as wife of J. W. Anthony; Clarence Anthony and Bennie Sue Anthony, his wife; Roy Anthony and Eudie Anthony, his wife, a co-partnership doing business as the Murfreesboro Lumber Company, filed their answer in which they denied that the title to the lands involved, Tract No. 16, or any part thereof is vested in the co-defendants, Crown Cox, et al., and said defendants plead that by the terms of said deed executed by the said Charles T. Erwin and wife on January 19, 1911, to A. J. Cox and M. E. Cox and unto their heirs only forever that the said A. J. Cox and wife, M. E. Cox, became vested of an estate by the entirety in fee simple and to their heirs and assigns.

The said defendants deraigned their claim of title to the said lands, Tract No. 16, by mesne conveyances from the said A. J. Cox and wife, M. E. Cox, and pray that they be declared the owners of said land, Tract No. 16, as against their co-defendants, Crown Cox, et al.

The defendants further plead that on October 22, 1932, their co-defendants, M. E. Cox, et al., filed an action in the Pike Chancery Court against Albert Schaefer and Annie Schaefer, et al., in which they prayed that the court cancel, set aside and forever hold for naught the deed that had been executed by A. J. Cox and wife, M. E. Cox, to the said Albert Schaefer, conveying the lands involved in Civil Action No. 374, Tract No. 16, and that on January 5, 1933, the said Pike Chancery Court sustained a demurrer to the complaint and dismissed the same.

That the answer of the co-defendants, Crown Cox, et al., should be stricken from the file and the partnership doing business as the Murfreesboro Lumber Company should be declared to be the owners of said Tract No. 16.

2. Civil Action No. 391 was filed on January 11, 1949, by which the United States of America sought to obtain by condemnation title to various tracts of land including Tract No. 14.

Tract No. 14 embraces the following described lands included in the said deed from Charles T. Erwin and wife, S. J. Erwin, to A. J. Cox and M. E. Cox, executed January 19, 1911, to-wit:

NW¼ of NE¼; NE¼ of NW¼; S½ of NW¼, and NW¼ of SW¼ of Section 4, the SE¼ of NE¼ of Section 5, all in Township 7 North, Range 25 West, in Pike County, Arkansas.

On March 14, 1949, Mrs. M. E. Cox and the heirs of A. J. Cox, deceased, filed their answer containing substantially the same allegations as their answer that was filed in Civil Action No. 374 and praying that they have judgment against the United States for the cash market value of the lands, Tract No. 14.

On May 17, 1949, Declaration of Taking was filed and on said date a sum of money was deposited by the United States of America sufficient, in its opinion, to pay just compensation for the land described in the complaint or petition heretofore referred to, and on May 18, 1949, a judgment was entered vesting title to the lands, including Tract No. 14, in the United States of America.

At a pre-trial conference on May, 10, 1949, at Hot Springs the Mac-Kan Mercury Company, a corporation, was granted permission to file an intervention and motion to strike the answer of the defendants, M. E. Cox, et al., which intervention and motion to strike was filed on that date and appears in Civil Action No. 374 which, as heretofore stated, was consolidated with Civil Actions Nos. 391 and 399.

In the intervention and motion to strike of the Mac-Kan Mercury Company, a corporation, it is alleged that it is the owner of the land embraced in Tract No. 14 and that the deed executed by Charles T. Erwin and wife, S. J. Erwin, to A. J. Cox and M. E. Cox on January 19, 1911, conveyed a fee simple title to the said A. J. Cox and M. E. Cox and that by reason thereof the defendants, M. E. Cox, et al., have no interest whatsoever in the lands included in Tract No. 14 involved herein.

The said defendant, Mac-Kan Mercury Company, a corporation, also pleads the proceedings in the Pike Chancery Court heretofore referred to in the statement of the issues in Civil Action No. 374.

This defendant further alleges that its co-defendants, M. E. Cox, et al., have been guilty of laches and are stopped from claiming title to the lands involved herein and that they are also barred by the statute of limitations and by the decree of the Chancery Court of Pike County hereinbefore referred to. The prayer of the intervention and motion to strike is that the answer of M. E. Cox, et al., be stricken.

3. Civil Action No. 399 was filed on March 16, 1949, for the purpose of acquiring the title by condemnation of certain lands including Tract No. 8, which embraces Lots 2 and 3 of the NW¼ of Section 7, Township 7 North, Range 25 West, in Pike County, Arkansas, that was conveyed to A. J. Cox and M. E. Cox by the said Charles T. Erwin and wife, S. J. Erwin, on January 19, 1911.

A Declaration of Taking was filed and on March 16, 1949, the Court entered a judgment vesting the title in the United States of...