83 Ark. 293 | Ark. | 1907
Lead Opinion
(after stating the facts.) First. The act under which appellees seek to confirm title requires that they shall “prove all the allegations” of their petition. Kirby’s Digest, § 654. Appellee N. E. Crist seeks confirmation under two allegations of her petition: That her mother, Mrs. Nannie E. Drink-water, “purchased the land” in controversy “from some unknown person,” and “that a deed of conveyance was made and delivered to her, but -that the same has become lost or mislaid.” Appellees have wholly failed to establish any deed to Mrs. '.Drink-water, mother of appellee N. E. Crist. There is some testimony in the record to the effect that Mrs Drinkwater accused appellant of “going into her trunk and getting her papers, and that he admitted it.” But this evidence, even if it were conceded to be competent for the purpose, fell far short of proving that there was a deed to Mrs. Drinkwater for the land in controversy.
Second. “That her mother has occupied and been in open and peaceable possession thereof from that date” (the date of purchase) “up to the date of her death, and has paid the taxes thereon for more than seven years before the filing of this suit. That petitioners are now in possession of the land, and no one claims adversely to them,” etc. The evidence does not prove these allegations. True, the testimony on behalf of appellees was to the effect that Mrs. Drinkwater and appellee N. E. Crist-were in possession of the land since about 1889, and that they did “most of the clearing and fencing;” but the testimony also of appellees was to the effect that J. C. Drinkwater, the husband of Mrs. Drinkwater, was also in possession of the land at the same time; that he was living on the land with his wife, the mother of appellee Mrs. N. E. Crist. . In the absence of proof that the land in controversy was owned by Mrs. J. C. Drinkwater in her own name and right, and that she was the head of the family, the law presumes, and wisely too, that the husband was the head of the family, and that the land in his possession belonged to him. Curran v. McGrath, 67 Ill. App. 566. That is the presumption in -the absence of proof’ to the contrary. But there is no proof here to the contrary. The statement of appellee’s witnesses that Mrs. Drinkwater was in possession was a mere conclusion. Having stated also the . fact that the husband of Mrs. Drinkwater was in possession, the law fixes the possession in him. The tax receipts tend strongly to show that the real facts as to the possession and ownership of the land were in accord with the presumption which the law raised on the mere possession of J. C. Drinkwater. The taxes were paid by him, and the land was in his name on the tax-books till his death. The testimony on behalf of appellant makes it dear that J. C. Drinkwater, and not Mrs. Drinkwater, was in the possession of the land at the time of his death. If there is ownership of the land by adverse possession, it must inure to the benefit under the present proof of the heirs of J. C. Drinkwater, and not to the appellee N. E. Crist.
The proof, however, upon the whole case as to the ownership of the land is unsatisfactory, and does not appear to .have been fully developed. As the record shows that appellant is now in possession, we will not dismiss the cause, but for the errors indicated will reverse and remand with leave to appellees, if they are so advised, to amend pleadings and to have cause transferred to the law court and to proceed as in an action at law.
Reversed and remanded.
Rehearing
ON REHEARING.
Opinion delivered July 22, 1907.
The proof shows that J. C. Drinkwater left no children, and that he acquired the land in controversy after his intermarriage with the mother of appellee. The land was a new acquisition, and under section 2709 of Kirby’s Digest, “if a husband die leaving a widow and no. children, such widow shall be endowed in fee simple of one-half of such estate of which her husband died seized.”
It follows that the mother of appellee was the owner of one-half of the land in controversy, and appellee when her mother died inherited her estate. The opinion heretofore rendered will be modified, and the title to an undivided one-half interest will be 'decreed to appellee N. E. Crist, and the title to the other undivided half will be decreed to the heirs of J. C. Drinkwater. The cause will be reversed and remanded with directions to amend pleadings, if the parties are so advised; to make other heirs of J. C. Drinkwater parties, and proceed to determine the equities and rights of all parties in interest according to the status fixed by this opinion, and for such other and further proceedings not inconsistent herewith as may be necessary for the purpose indicated. The clerk is direoted to divide the cost equally between appellant and appellee.
