Jennings v. Bouldin

Wood, J., (after stating the facts). On the former appeal the only question decided by this court w-as that the order of the probate court directing a sale of the lands and the sale thereunder were void for want of sufficient description to designate any land. The petition for the sale containing such imperfect description gave the court no jurisdiction of the subject-matter, and the consequent order of sale and sale were void, and the new order attempting to correct the description was likewise void. The question was decided upon the undenied allegations of the complaint, as explained by the exhibits thereto. This court did not pass upon the sufficiency of the demurrer to the answer. It did not get to that. Although there was a demurrer to the answer on the first trial, which was overruled, and although the plaintiffs -stood on their demurrer, and appealed from the judgment on a verdiot directed in favor of the defendant, still when the cause reached us we only decided, as we have stated, that the probate court was without jurisdiction to confirm a sale of lands that was void by reason of an insufficient description of the land alleged to have been sold. We did not pass upon the demurrer to the answer then, and that is not res judicata now. Moreover,, the answer of Rankin presents the new issue of innocent purchaser from Jennings after the circuit court had rendered a judgment in his favor for the land in controversy. He alleged that no lis pendens or other -notice had been filed with the clerk as required by law, and that he dealt with said Jennings without notice and as an innocent purchaser. The allegations of the answer of Rankin that appellees had failed to comply with the lis pendens statute (section 5149, Kirby’s 'Digest) and that he purchased the land from Jennings without notice state a defense, but state it imperfectly.' The answer should have alleged that he purchased without notice, either actual or constructive, and that he paid the purchase money, setting up the facts, before getting any actual notice or any notice by a compliance on the part of appellees with the requirement of the statute supra as to notice of the Us pendens. One who purchases, having actual notice of the pendency of the suit, can not avail himself of the failure to give the Us pendens notice required by the statute. But the defects in the answer could and should have been reached by motion to make more specific .and not by demurrer, for the answer did set up a defense, but one defectively stated. Jennings was in possession, and he could transfer that possession with what rights he had thereby in the land, if, any, to Rankin. Wilson v. Rogers, 97 Ark. 369. Whether he did so for value and without notice, actual or constructive, to Rankin of appellees’ rights in the pending suit were questions of fact which were raised by the answer, and which should have been submitted to the jury. The denial also that the land claimed was the homestead of James Tillman in his lifetime presented an issue that should have gone to the jury. The answer presented no defense on the five and seven years statutes of limitations as applicable to appellant Jennings. He purchased at a sale where the court did not have jurisdiction of the subject-matter by reason of the imperfect description of the land he claimed to have purchased. The confirmation for that reason was void, there being in fact no sale and no confirmation. This is not in conflict with Nelson v. Cowling, 77 Ark. 146, for in that case the court had jurisdiction of the .panties and subject-matter — the portion of lands — but went beyond its jurisdictional limits in ordering ".part of the land sold for costs. The answer on its face shows its death wound, so far as the seven yeárs statute of limitations is concerned as to Jennings. For the “defendant admits that at the January term of the court, 1901, the sale of the land under which he held possession was approved and confirmed in January, 1901,” and this suit was instituted in October, 1906. Seven years had not intervened between these dates. For the error of ¡the court in sustaining the demurrer in the particulars mentioned the judgment is reversed with directions, in these respects, to overrule the demurrer as to Rankin.