The Chancery Court sustained a demurrer to the complaint and dismissed the suit when plaintiff refused to plead further; the correctnеss of the ruling on the demurrer is the only question here presented.
Plaintiff, Minnie Dodson, filed suit against defendant, H. L. Abercrombie; and the cоmplaint stated in part:
“She and defendant are resident citizens of Saline County, Arkansas. She is the owner of the following describеd lands, situated in Saline County, Arkansas, to-wit:’’ (Then follows detailed description of certain lands.)
“She acquired said property by rеason of a quitclaim deed from H. L. Dickinson,1 said deed being recorded in deed Record Book 53, at page 566, of the deеd records of Saline County, Ark. The said H. L. Dickinson acquired said lands from the Saleo Sand & Gravel Company when said Company dissolvеd and liquidated in 1918. Said Dickinson never did record his deed; he lost it. The plaintiff herein represents to the court that said lands were trаnsferred to him (Dickinson) by said company by proper warranty deed and that he lost the deed before it was ever recоrded. Plaintiff further alleges that the said Dickinson held said lands continuously for more than seven (7) years and at the time of the conveyance of said lands by Dickinson to her, the said Dickinson was the only lawful owner of the property. The said Saleo Sand & Gravel Company was an Arkansas Corporation, organized in 1915 and dissolved in 1918, or thereabouts. The Saleo Sand & Gravel Company аcquired said lands from Joe Berger, Trustee, and the said Joe Berger had acquired said lands from B. P. Henry and Addie B. Henry, his wife, as shown by deеd of conveyance recorded at page 516 of deed Record Book 3, of the deed records of Saline County, Arkansas.
‘ ‘ The defendant, H. L. Abercrombie, is claiming title to said property and the rights to all of the gravel thereon and under by reason of a judgment of the Saline Chancery Court in Case No...................wherein Abercrombie was plaintiff and Ed Dodson was defendant. In said cаse the said H. L. Abercrombie’s title to said lands and the gravel thereon and under was confirmed in him as against the said Ed Dodson, but not as against any other person, or not as against this plaintiff. The plaintiff alleges that the judgment of this court in favor of H. L. Abercrombie, аs alleged, is a cloud upon the title of this plaintiff in and to said property and the gravel thereon and under and that the clоud should be, by decree of this court in this case, removed.”
The complaint further alleged that Abercrombie was about to remove the gravel from the land; and the prayer was, inter alia, that the plaintiff’s title be quieted and that the defendant be restrained from removing gravel from the land. The defendant’s “demurrer” reads:
“That the complaint of the Plaintiff does not state facts suffiсient to constitute a cause of action, and further states:
“1. That the plaintiff is barred by laches, that the suit was filed by H. L. Abercrombie against Ed Dodson, in August of 1947, and- that she testified at said hearing and knew it was a controversy over this particular land.
“2. That she is the wife оf Ed Dodson and knew ■ that the court rendered a decree in this case confirming title to this- land in H. L. Abercrombie.
“3. She alleges in her сomplaint that H. L. Dickerson never did record his deed and knew that H. L. Abercrombie had a deed from W. T. Pagan.
“4. She is bound to know that Ed Dodson filed suit against H. L. Abercrombie to set aside the decree claiming said lands by reason of a State Deed.”
As to the pаragraphs above, numbered 1 to 4, we point out that each of these was in effect a “spealdng demurrer, ’ ’ and, as such, was not permissible under our practice. See Rider v. McElroy, 194. Ark. 1106,
“ ‘. . . A demurrer which sets up a ground dehors the record, or a ground which, to be sustained, requires reference to faсts not appearing on the face of the pleading thus attacked, is said to be “a speaking demurrer, ’5 and is bad. ’ ’ ’
We presume that the appellee, in arguing these “speaking” matters in the trial court, stated — just as is done in the brief here — that Minnie Dodsоn was the wife of Ed Dodson, the appellant .in two cases in this Court (Dodson v. Abercrombie,
So with parаgraphs numbered 1 to 4 of the so-called ‘ ‘ demurrer ’ ’ overruled, for the reasons stated, we come to the one question propounded, that is: did the complaint state a cause of action? Obviously, the answer is yes: Minnie Dodson alleged that she оwned and was entitled to the possession of certain definitely described lands; she deraigned her title; she affirmatively pleaded that she had never been a party to any previous litigation with the defendant. In short, she alleged facts sufficient to constitute a cause of action. See Ark. Stats. §§ 34-1401, 34-1411, and 34-1901. See, also, Brasher v. Taylor,
Therefore, we must necessarily reverse the Chancery Court decrеe and remand the cause with directions to overrule the demurrer.
Notes
In some instances the name is spelled “Dickinson” and in others it is spelled “Dickerson”. There is nothing to show a lack of identity.
Regarding “speaking demurrer,” see, also, 49 C. J. 423 and 21 C. J. 433.