26 Ark. 256 | Ark. | 1870
Lead Opinion
This was a suit, the proceedings in which were under the Code, by Emanuel Burgauer, as administrator of Moses Bur-gauer, deceased, against James J. Laird, for the recovery of a lot, or parcel of ground, in the town of Mt. Ida.
The defense set up in the answer was, that the plaintiff, by a parol agreement, had bargained and sold the lot to the defendant for five hundred dollars, in Montgomery county scrip, which had been paid to him, and he had put the defendant in possession of the premises. The plaintiff demurred to the answer, and assigned specially as causes of demurrer: 1. That it did not show that the lot had been legally sold. 2. That the sale, being by parol, was void by the statute of frauds.
The court overruled the demurrer, and, the plaintiff standing upon it, judgment was rendered against him, and he appealed.
It is clear, beyond all question, that the plaintiff had no authority to sell his intestate’s real estate without an order of court for that purpose, and except in the manner prescribed by the statute, but, although the sale to the defendant was invalid and void, having gone into the possession with the consent of the plaintiff, as a purchaser, he was not a trespasser or wrongfully in possession, and could not, therefore, in justice or reason, be subjected to a suit, unless he had refused to surrender it upon a demand or notice to quit. Fears v. Merrill, 9 Ark., 559; Jackson v. Bryant, 1 John., 322; Jackson et al. v. Wheeler, 6 ib., 272; Harley v. McCoy, 7 J. J. Marsh, 317; Right v. Beard, 13 East., 115. The demurrer was, therefore,, correctly overruled.
Judgment affirmed.
Dissenting Opinion
dissenting, says:
The answer in this case sets up a defense, that the defendant purchased the property; took possession under the purchase; that he had paid the purchase price, and he prayed that his possession be quieted, and that the plaintiff be compelled to make title. It attempts to set up an equitable right to the fee-in the lots.
The complaint is in the usual form, under the Code, for the recovery of real property. It sets up the plaintiff's right, as such administrator, to the property and to the possession, and that the defendant is in possession, and withholds the same.
We agree with the majority of the court, that the plaintiff, as administrator, had no power to sell his intestate’s real property without complying with the statute, and having an order from a competent court, and that a purchase from him, as such administrator, without such order, conveyed no valid, legal or equitable title. The complaint follows the forms in the Code.
The answer admits the plaintiff’s title, but attempts to set up his own purchase, under which he went into possession, and prays to have title decreed him. This court says the facts he •states show no title in him. Then, it seems to us, the demurrer was well taken to the answer.
But the court says he went into possession under the plaintiff’s permission, and, therefore, the plaintiff should have demanded that he surrender possession. He does not deny a demand; he does not deny the plaintiff’s right to recover, upon the ground that be bad let bim peaceably into possession; and, if we presume, that presumption must be against tbe pleader that that demand was made. TJnder tbe general terms and short forms of our Code, it was not necessary that such demand, in words, should have been averred in tbe complaint; but if so, the court erred in not letting tbe demurrer relate back to the complaint, and bolding it bad, upon tbe well understood ruling that a bad answer is sufficient for a bad complaint. But, we repeat, tbe Code prescribed tbe form of tbe complaint, and only requires that the plaintiff aver bis right of property and possession. The defense here, as we conceive, rested upon tbe facts which tbe defendant averred gave bim title; that title being insufficient, we bold the demurrer should have been sustained.