Richards v. Howell

| Ark. | Jun 11, 1917

Hart, J.,

(after stating the facts). (1) It is first insisted by counsel for the plaintiff that the court erred in permitting the defendants to file their amended and substituted answers. Counsel for the defendants claim that when the suit was first instituted they filed their answers under the mistaken belief that the plaintiff was suing them for cutting timber on the land which he had been occupying and that their employees by mistake had cut some timber from that land; that when they discovered that the plaintiff was suing them for cutting the timber on the forty acres of land which the defendant Wilson claimed title to by adverse possession, that by leave granted by the court they filed their amended and substituted answers. There is nothing in the record to show that this was the reason the court gave them permission to file their substituted answers, but in the absence of a showing to the contrary the presumption is that the court had good reasons for granting them that permission. We have only mentioned the reasons assigned by counsel for the defendants for the purpose of showing that the original answers and substituted answers are not necessarily in conflict, and there is nothing in the record to show that the court erred in allowing defendants to file their amended and substituted answers.

It is next insisted by counsel for the defendants that the court erred in transferring the cause to equity, and iii this contention we think counsel are correct. The suit filed by the plaintiff against the defendants to recover damages for maliciously and unlawfully cutting the timber from his land was an action of trespass. We have frequently held that an injunction will not lie to restrain one person from cutting the timber of another unless insolvency or some other equitable ground is shown. This is because the land owner has an adequate remedy at law and may bring an action of trespass for the unlawful cutting of this timber. Myers v. Hawkins, 67 Ark. 413" date_filed="1900-02-03" court="Ark." case_name="Myers v. Hawkins">67 Ark. 413; Hall v. Wellman Lumber Co., 78 Ark. 408" date_filed="1906-04-16" court="Ark." case_name="Hall v. Wellman Lumber Co.">78 Ark. 408, and cases cited.

Defendants claim that their answers set up a defense in equity, but we can not agree with them in this contention. They set up title in Wilson by adverse possession for the statutory period of seven years. This presented an issue of fact in the action of trespass brought by the plaintiff. In other words, they sought to defend against the action of trespass by setting up title by adverse possession in themselves. They thus made an issue of fact which the plaintiff had á right to have submitted to a jury. Suhs v. Homewood Rice Land Syndicate and Suhs v. Moeker and Gottschalk, 128 Ark. 19" date_filed="1917-03-05" court="Ark." case_name="Suhs v. Homewood Rice Land Syndicate">128 Ark. 19.

Counsel for the defendants insist that Wilson had acquired title by adverse possession to the land on which the timber in controversy is situated. They claim that the deed from Bostick to the plaintiff was a cloud upon his title and prayed that it be canceled. This did not, as insisted by them, confer jurisdiction upon the chan-, eery court. In a case note to Tracy v. Wheeler, (N. D.), 6 L. R. A. (N. S.) 516, it is stated that the courts are practically unanimous in holding that the fact that the statute of limitations has run against the right to enforce an incumbrance will not be regarded in equity as justifying its cancellation for the purpose of quieting title. This is in application of the maxim that he who seeks equity must do equity. In accordance with this maxim, Wilson would not be entitled to affirmative relief against Richards in the way of having canceled the deed which Richards received from his grantor. It is true that Wilson could obtain title to the property by holding it adversely for the statutory period and could assert the title thus acquired against every one, including Richards, the holder of the paper title. This, however, would not give him the right'to go into equity and have the record title canceled as a cloud upon his title. To do so would be to grant him affirmative equitable relief against Richards from whom he had wrested the title by adverse possession and at the same time relieve him from any moral obligation of restoring the property to Richards. Besides, as we have already seen, the principal issue iaised by the pleadings in this case was as to whether or not Wilson had acquired title to the land by adverse possession. If Wilson could by asking that the paper or record title of Richards be canceled as a cloud upon his title have the case transferred to equity, this would in effect enable a defendant in an ejectment suit or an action in trespass to convert the action at will from a legal to an equitable one, and that, too, without setting up any affirmative grounds for equitable interference. Neither did the fact that Richards asked for judgment over against his grantors in case judgment was rendered against him set up any grounds for equitable interference.

The defendants claim title by adverse possession. This made an issue of fact which the plaintiff had a right to have submitted to a jury. He objected to the transfer of the cause to equity and saved his exceptions to the order of the court in transferring it. Therefore, the decree must be reversed and the cause will be remanded for further proceedings in accordance with law and not inconsistent with this opinion.