145 Ark. 536 | Ark. | 1920
This is an action instituted by appellee against appellant in the circuit court of Miller County to recover possession of a tract of land. Appellee claimed title under a patent from the United States, executed to her as homesteader in the year 1890, and she alleged that appellant was wrongfully in possession of the land claiming to be the owner under a tax sale in the year 1892 for the taxes of 1891, which said tax sale is alleged to be void. Appellant in its answer claimed title under the aforesaid tax sale and alleged that the sale was valid. In the answer the title was traced back to the patent to appellee from the United States and the sale for taxes in 1892, under which appellant claimed title. Appellant also pleaded the seven-year statute of limitations and also the two-year statute of limitation under the tax deed.
In the trial of the cause it was proved that the tax sale under which appellant claimed title was void. That is conceded, and there is no claim made here that the title passed under the tax sale. The testimony adduced by appellee established the fact that her father occupied the land in controversy as far back as the year 1854 when she was born and that she inherited it from her father and continued to reside thereon, but that it was found that her father had no record title and she procured a homestead patent from the United States Government in the year 1890. She testified that she continued to live on the land and cultivate it until the year 1903 when she was compelled to move on account of the overflow and did not return until the year 1908, when she lived on it again for a short time but was compelled to move again on account of the overflow. Appellant paid the taxes on the land continuously from 1911 to. 1918 and took possession of the land in the year 1918 and this suit was brought about a year later. Appellee was formerly a widow and married again in the year 1885 and is still a married woman.
Appellee’s coverture exempts her from the operation of the seven-year statute of limitations. The act of March 19, 1915 (Acts 1915, p. 684), further removing the disabilities of married women did not repeal the exemption in favor of married women in the statute of limitations. Kirby’s Digest, section 5056. Statutes removing the disabilities of a married woman have been construed not to remove the exemption in her favor in the statute of limitations, which provides that a married woman may bring suit within three years after discoverture. Hershy v. Latham, 42 Ark. 305; Rowland v. McGuire, 64 Ark. 412. The act of February 20, 1919, general session (Acts 1919, p. 90), repealing the exemptions in the statute of limitations in favor of married women is not applicable to the present action, which was brought within one year after the passage of the statute.
The testimony in this case does not establish the fact that the land in controversy was wild and unoccupied, so as to bring it within the operation of the statute which makes payment of the taxes on said lands equivalent to actual possession (Kirby’s Digest, section 5057), but, even if the proof was sufficient, appellee’s coverture prevents the bar of the statute of limitations from attaching. Appellant was not in possession under the tax deed for a period of two years prior to the commencement of this action, therefore the two year statute does not apply.
After all the other testimony in the case had been introduced, appellant asked leave to introduce in evidence a duplicate patent from the State of Arkansas to one Andrews issued in the year 1859, purporting to convey the land -in controversy. This was for the purpose of showing that the title was in a third, party, and that appellee, for that reason, could not recover. The court refused to permit the instrument to be introduced in evidence. The bill of exceptions does not contain the offered document, therefore we can not consider it. Moreover, it is obvious, even if the patent was before us, that the court did not abuse its discretion in permitting appellant to introduce a document in support of a defense not tendered in the answer. There is no error in the record, and the judgment is therefore affirmed.
