Willingham v. Jordan

• Decision Date: 06 May 1905
• Citation: 87 S.W. 424
• Parties: WILLINGHAM v. JORDAN et al.
• Court: Arkansas Supreme Court

Page 424

87 S.W. 424

WILLINGHAM v. JORDAN et al.

Supreme Court of Arkansas.

May 6, 1905.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor.

Suit by Jerry Jordan and another against Henry Willingham to set aside a compromise. Judgment for plaintiffs. Defendant appeals. Reversed.

N. T. White and Ben J. Altheimer, for appellant. A. T. Whitelaw, for appellees.

HILL, C. J.

Jerry Willingham was a slave living in Kentucky, and contracted a slave marriage with another slave named Celia. The appellees, Jerry and Alex Jordan, are children of that marriage.

Jerry and Celia were separated by Jerry's sale, and he was brought south, and Celia died a few years afterwards. Charlotte Lockridge was also a slave in Kentucky, and was sold and brought south. She and Jerry contracted an alliance, whether sanctioned by marital rites is uncertain. The appellant, Henry Willingham, is a son of that alliance. A few years after the War, Jerry acquired three adjoining 40-acre tracts of land in what was then Arkansas county, now a part of Jefferson county. He lived on this land something like 20 years, and it seems he acquired it from one Thompson about 1867, and paid him $1,100, and there was at that time a small balance of purchase money unpaid. Jerry improved this land, especially the middle 40, and had about 60 acres under fence, and had some part of each 40 in cultivation and in actual possession. He was inclined to be a polygamist, and had two wives, if such they may be called, living with him on this property, and there is some evidence that for a time there was a third. At any rate, he had two families there, Charlotte the mother of one, and Lou Palmer the mother of the other, and his family left back in Kentucky in addition. He brought part of his Kentucky family to Arkansas, and always recognized these appellees as his children. In fact, he was not sparing in recognition of his several families. These facts are gleaned from the testimony of negro witnesses whose memory of dates and sequence of events are uncertain, and this statement is only thought to be approximately correct, and is only important as showing that there was a substantial basis for each set of children to allege illegitimacy of the other, one on account of the invalidity of the slave marriage with Celia in Kentucky, and the other on account of the doubt of any marriage with Charlotte. Jerry Willingham went out of possession of the land about 1887. It is claimed by one witness that he was dispossessed of the middle 40 by Miss Loudan under a foreclosure decree, and claimed by others that he turned over the middle 40 to Capt. Loudan (brother of Miss Loudan) to work out a debt, and claimed by others that all three 40's were turned over to one Spellman to work out a debt, and still by others that the north and south 40's were turned over to Spellman for said purpose. At any rate, he went out of possession, and remained out till his death, three years thereafter. Shortly after his death Henry Willingham and his sister went into possession. The sister afterwards died, and Henry seemed to have entire control thereafter. On February 16, 1892, Capt. Loudan got Henry Willingham to sign a paper acknowledging his "unlawful, unauthorized, and illegal" taking possession of the middle 40, and, in consideration of Henry obligating himself to peacefully relinquish possession and agreeing not to re-enter or interfere with Miss Loudan's possession, Miss Loudan agreed not to prosecute Henry for his "unlawful, unauthorized, and illegal act of taking possession of said premises by him, or to enforce the claim for heavy damages sustained by her by said unwarranted act." Notwithstanding this agreement, Henry remained peacefully in possession until he conveyed this 40 to appellees, in pursuance of the compromise hereinafter referred to, in October, 1897. In August, 1897, Jerry and Alex Jordan brought suit against Henry for the land in controversy, alleging that they were "the only living, sole, and legal heirs of Jerry Willingham, their father, who died October 22, 1890, seised in fee of the above-described land," and alleged that Henry had been in the unlawful possession of it for six years, and they prayed for possession and $600 for damages for its unlawful detention. Henry answered this suit, denying that the plaintiffs therein (appellees herein) were heirs at law of Jerry Willingham, and asserted title in himself as the child and only heir at law of Jerry Willingham. In October of that year the parties to said suit compromised it. Henry received the two end 40's, and Jerry and Alex the middle 40 (where the chief improvements were), and they respectively deeded to each other, and the suit was dismissed. Jerry and Alex went into possession of the middle 40, and Henry remained in possession of the other two 40's. A few months after this, Capt. Loudan appeared on the scene and asserted title to the middle 40 in behalf of his sister, and he induced Jerry and Alex to purchase it of her for $955. Thereafter Jerry and Alex brought this suit against Henry, seeking a cancellation of the compromise deeds and a partition of the land which Henry held, on the ground that the compromise had been entered into under a mutual mistake as to the title of the middle 40 being in their father, and that the title to it was not in him, but in Miss Loudan. The chancellor found there was a mutual mistake in said regard, canceled the deeds, and partitioned the two end 40's equally between Jerry, Alex, and Henry, and Henry has appealed.

Miss Loudan's title is as follows: From the United States, through the state, to T. J. Thompson. The administrator of Thompson conveyed to Halliburton, and Thompson's widow conveyed her dower interest to...