61 Ark. 575 | Ark. | 1896
(after stating the facts)-. We agree with the circuit court in holding that the right, of action of appellant is barred by the statute of limitation and the lapse of time. Wm. C. Sypert, the ancestor of appellees, purchased the land in controversy at a sale ordered by a court for partition, in the year 1873. The sale was duly confirmed, and a deed made in pursuance; thereto. Under this sale and conveyance, Sypert took possession of the lands, and held the same openly, adversely and continuously under a claim of title from the year 1873 till the time of his death, in 1891, and this action was not commenced until 1893, twenty years after Sypert took possession of the land. This open, notorious and adverse possession of the land was, in law, notice to all the world of Sypert’s possession and claim of ownership, but the appellant had also actual notice of these facts. He also knew that his father had at one time owned or claimed the land, for, when questioned on this point, he said : “I had heard people say that the land around Nashville was once known as the “Thomas Place,” but I did not know what title my father held, the amount, or the numbers,” etc. Again, referring to this matter, he said : ‘ ‘In my former deposition I said all I knew about the land in controversy being sold was what Wm. C. Sypert told me, just before I was married, that he had bought all the property. I did not know what kind of a sale was made, nor when it was made, nor how the sale was made.” This conversation with Sypert, in which he told plaintiff of the purchase, occurred before plaintiff was married, and plaintiff was married before he became of age. The testimony of plaintiff himself, we think, shows that, before he became of age, he knew that the land in controversy had been a portion of his father’s estate, and that afterwards it had been purchased by Sypert at a judicial sale of some kind. But, apart from this testimony, it would be strange if appellant, a man of fair intelligence, who was nearly nine years of age at the time of the marriage of his mother with the ancestor of appellees, and who lived till grown on the land in controversy, in the midst of neighbors and acquaintances, most, if not all, of whom knew, for it was a matter of common knowledge in the neighborhood that the land had been the homestead and a part of the estate left by his father, — it would be exceedingly strange if he remained ignorant of that fact till long after he became of age. But if he knew that this land had belonged to the estate of his father, and we think there can be no doubt that he had this knowledge, this was sufficient to put him on an inquiry which, if properly pursued, would have led to the discovery of all the other matters essential to the establishment of his rights. That he did not know the exact nature of his father’s title, or the numbers of the land, was a matter of no consequence, for this could have, been ascertained from the public records of the county. These records would'also have fully informed him of the nature of the title under which Sypert claimed the land. He must have known of these facts before he became of age, and yet, with nothing to prevent him from bringing suit, he waited fifteen years after becoming of age, and until Sypert was dead, before commencing his action.
The evidence impresses us with the belief that this long delay in asserting his rights was occasioned, not by reason of any concealment on the part of Sypert, or from ignorance of the facts on the part of appellant, but that it was due, either to ignorance of the law,— which, according to an old maxim, excuses no one, — or, what is more probable, to the natural repugnance felt by appellant ■ against harassing, by a law suit, the old age of a man who had adopted him as a son, had long stood towards him in the relation of a parent, and in whom, to use his own language, he “had the greatest confidence.” While this delay was not discreditable to appellant, attesting as it does a due regard for his adopted father, it was yet fatal to his right to recover.
The defects, whatever they may have been, that existed in the title of appellees are now cured by lapse of time, and covered by the mantle of repose which the statute places over rights long openly, adversely and peaceably asserted. “The law wisely holds that there shall come a time when even the wrongful possessor shall have peace.” Cunningham v. Brumback, 23 Ark. 338.
The fact that Sypert was the administrator of the J A estate of appellant’s father, and also stood in loco fiarenlis towards appellant, can now avail nothing, after so great a lapse of time; for, by the purchase and adverse possession of the land; Sypert had, so far as it was concerned, openly repudiated the trust. The rule is that “the statute begins to run from the time that the trust is openly repudiated or disclaimed by the trustee.” Lawson’s Rights & Rem. sec. 2036 ; Bland v. Fleeman, 58 Ark. 90; Gibson v. Herriott, 55 Ark. 92; Hindman v. O'Connor, 54 Ark. 645; McGaughey v. Brown, 46 Ark. 34; Merriam v. Hassam, 14 Allen, 516; S. C. 92 Am. Dec. 795; Kane v. Bloodgood, 7 Johns. Ch. 90; S. C. 11 Am. Dec. 172; Wood v. Carpenter, 101 U. S. 139.
The learned special judge who heard this cause in the circuit court having favored us with an opinion correctly stating the facts and the law of the case, we concur in the same, and refer to it for a fuller discussion of the questions arising in this case. Por the reasons stated in that opinion, as well for those given above, the judgment of the circuit court is affirmed.
