Willingham v. Jordan

• Decision Date: 06 May 1905
• Citation: 87 S.W. 424,75 Ark. 266
• Parties: WILLINGHAM v. JORDAN
• Court: Arkansas Supreme Court

87 S.W. 424

75 Ark. 266

WILLINGHAM v. JORDAN

Supreme Court of Arkansas

May 6, 1905

Appeal from Jefferson Chancery Court, JOHN M. ELLIOTT, Chancellor.

Reversed.

Judgment reversed and cause remanded.

N. T White and Ben J. Altheimer, for appellant.

The quitclaim deed from appellant only conveyed the title held by him. 44 Ark. 160. And was notice of all imperfections of title. 13 Ark. 298, 741; 3 How. 410; 34 Ark. 590; 44 Ark 154; 12 Pet. 199; 137 U.S. 78; 132 U.S. 318; 137 U.S. 565; 69 Tex. 271; 15 Ark. 275. Failure of title conveyed by quitclaim deed, in the absence of fraud, is no defense to the payment of the purchase money. 15 Ark. 465; 21 Ark. 585. The consideration for the agreement was based on the composition of crime, and the agreement was void. 29 Ark. 336; 32 Ark 619; 34 Ark. 762; 47 Ark. 378. There was no such mistake as would warrant a court of chancery in setting aside the conveyances. 20 Am. & Eng. Enc. Law, 813; 47 Ark. 335; 27 Ark. 244; 46 Ark. 337. In rescinding a sale, the parties must be placed in statu quo. 17 Ark. 603; 33 Ark. 228; 31 Ark. 151; 53 Ark. 16; 59 Ark. 259; 62 Ark. 277; 59 S.W. 520; 60 S.W. 371, 837. Partition does not lie. 27 Ark. 77; 40 Ark. 155; 56 Ark. 391.

A. T. Whitelaw, for appellee.

The settlement agreed upon was induced by fraud on the part of the appellant, and the same was void. 35 Ark. 483; 30 Ark. 535; 33 Ark. 334; 47 Ark. 148. There was a mutual mistake, and the conveyance will be rescinded. 29 Ark. 323; 67 Ark. 426; 40 Ark. 352; 66 Ark. 448; 69 Ark. 406; 49 Ark. 34; 27 Ark. 512; 46 Ark. 131; 51 Ark. 434; 52 Ark. 65; 55 Ark. 115; 62 Ark. 99; 67 Ark. 551; 65 Ark. 53. Relief will be granted, although the parties cannot be placed in statu quo. 26 Ark. 378; 33 Ark. 425; 47 Ark. 148. Partition of the lands is proper in this cause. 56 Ark. 398; 33 Ia. 487; 105 U.S. 189; 56 Ark. 399; 43 Ill. 282; 68 Ark. 495. Evidence is not admissible in behalf of a party that disputes an admission in his pleading. 32 Ark. 470; 33 Ark. 307. Questions not raised by the pleadings are not considered on appeal. 69 Ark. 23; 64 Ark. 252; 46 Ark. 103; 71 Ark. 552; 70 Ark. 197; 66 Ark. 219.

HILL C. J. WOOD, J., and RIDDICK, J., dissent.

OPINION

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 forty-acre tracts of land in what was then Arkansas County, now a part of Jefferson County. He lived on this land something like twenty 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 forty, and had about sixty acres under fence, and had some part of each forty 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 forty by Miss Loudan under a foreclosure decree, and claimed by others that he turned over the middle forty to Capt. Loudan (brother of Miss Loudan) to work out a debt, and claimed by others that all three forties were turned over to one Spellman to work out a debt, and still others that the north and south forties 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, Captain Loudan got Henry Willingham to sign a paper acknowledging his "unlawful, unauthorized and illegal" taking possession of the middle forty, and, in consideration of Henry obliging 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 forty 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, seized 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 himself as the child and only heir at law to Jerry Willingham. In October of that year the parties to said suit compromised it. Henry received the two end forties, and Jerry and Alex. the middle forty (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 forty, and Henry remained in possession of the other two forties.

A few months after this Captain Loudan appeared on the scene, and asserted title to the middle forty 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 forty 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, cancelled the deeds, and partitioned the two end forties 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 Halliburton; then in a suit of "Edward Visert as assignee of W. H. Halliburton v. Jerry Willingham," where a judgment for $ 575 was rendered and the equity of redemption was barred, a commissioner conveyed to Miss Loudan. This was in 1886, and in the same year Visert acquired a tax deed, and he subsequently conveyed by quitclaim to Miss Loudan. As to the tax deed, it was shown to have been based on a forfeiture for a year in which Jerry paid the taxes and had a tax receipt. And under section 5061, Kirby's Digest, no action could have been maintained on it at the time this title was asserted in 1898, if the tax title was ever asserted.

There is no showing as to what assignment Halliburton could have made to Visert to entitle him to bring suit against Jerry Willingham. It appears that Thompson's title was conveyed directly to Halliburton, and it also appears that Jerry had been in possession for twenty years under a purchase from Thompson, Halliburton's predecessor in title. Very likely Jerry's contract of purchase inured to Halliburton, and it was for a foreclosure for balance of the purchase money that the suit was brought, but such is not shown in the record. Conceding, however, a valid paper title in Miss Loudan, her title was dated in 1886, and it would depend upon either proving that she, and not Spellman, took the possession from Jerry, or that the written agreement with Jerry was an acknowledgment of title sufficient to estop him from claiming against her. As heretofore indicated, the testimony is very uncertain as to whether Captain Loudan or Spellman had possession. The paper signed by Henry, if valid would not extend beyond himself, and would not have affected the other heirs of Jerry; but the paper shows on its face to have been an intimidatory instrument, and was evidently not relied upon, for Henry was left in peaceful possession for five years after its execution. Thus it is seen that it is a doubtful question...