108 Ark. 248 | Ark. | 1913
(after stating the facts). There''is no dispute, whatever, as to the facts in this case, except relative to the conduct of appellant, Mrs. Anders, during the time of the making of the improvements upon the land in controversy by appellees, and there is no testimony tending to show any conduct upon her part that would have induced appellees or their grantors to purchase said lands, or mislead them to think that she had no claim thereto, except the fact that she lived long in the locality near them without asserting any title thereto or paying taxes thereon. •
Her father died in 1855, leaving her mother, herself and the other children in possession of the lands, his homestead; she thereafter married in 1867, and has ever since been a married woman, and her mother and the other children resided upon the lands until the death of the mother in 1876, and certainly no claim adverse to her interest arose or could have arisen before that time, because the homestead could not be partitioned, and under the law the mother had the prior right thereto. Johnson v. Turner, 29 Ark. 280; Lindsey v. Norrill, 36 Ark. 545. And she was a married woman and under disabilities from 1867, long before the death of her mother, and exempt on that account from the operation of the statute of limitations and a title under adverse possession could not be built up against her.
In the case of Harvey v. Douglass, 73 Ark. 221, this court said: “The seven-year statute could not apply because the agreed statement of facts was that Mrs. Douglass has been a married woman ever since a date prior to this sale and the possession of defendants. Title by adverse possession for seven years can not be built up against a married woman.” (Citing cases.)
The court erred in transferring the cause of action, which was purely one at law, to the court of equity, no equitable relief being alleged in the answer, except the plea of laches, which could not be availed of at law.
In Davis v. Neal, et al, 100 Ark. 399, 140 S. W. 278, the court said:
“In the case of McFarland v. Grober, 70 Ark. 371, the court held: ‘The doctrine of laches has no application to a case where the plaintiff is not seking equitable relief, but to enforce a legal title, and where her action is not barred by the statute of limitations in reference thereto.’ ”
And in Taylor v. Leonard, 94 Ark. 122, “The doctrine of laches does not apply to a case where one is seeking to enforce a legal right, and where the right to assert that title is not barred by the statute of limitations. In the case of Roland v. McGuire, 67 Ark. 320, it is said: ‘The right to plead such fact (laches) as a defense is subject to the important limitation that it is confined to claims for purely equitable remedies, to which the party seeking to enforce them has no strict legal right.’ In the case of McFarland v. Grober, 70 Ark. 371, it is said: ‘The doctrine of laches, invoked by the defendant, does not apply to a case where the plaintiff is not asking any equitable relief, but seeks only to enforce a plain legal title in a court of law, and where her action is not barred by the statute of limitations in reference thereto.’ And this principle is equally applicable in a case where a defendant interposes his legal title in a court of equity as a defense against one seeking to establish title to the land. ’ ’
“It is true a married woman may be estopped to claim real estate, but mere silence or inertness will not suffice to work an estoppel.” Fox v. Drewry, 62 Ark. 316.
It follows that the court erred, both in the transfer of the case and the rendition of the decree. The appellees, however, are not in a position to complain of the transfer of the case to equity, made upon their motion, and the decree is reversed and the cause remanded with directions to enter a decree for appellants for possession of the lands.
