Sims v. Sims

DOWDELL, C. J. — This appeal is taken from a final decree rendered on submission of the cause on the pleadings and proof. On the state of the record before us, the main question — if not the only one presented — is one of fact. The evidence without dispute shows that the land sought to be sold for division was the homestead of the ancestor of the parties to this suit, and that he was a married man and resided thereon at the time of the execution of the purported deed offered in evidence by the respondent, John Sims. There was no separate acknowledgment by the wife to this deed, as required by the statute, and hence the deed was void. The date of the death of the ancestor, Eldridge Sims, is the principle issue of fact in the case. The complainants contend that he died on the 13th of December, 1893, while the respondent contends that he died in October or November, 1892. There were no minor heirs, and the homestead was less than 160 acres in area, not situated in a city, town, or village, and the great weight of the evidence showed that it was worth less than $2,000 'in value. The wife survived, and if the husband, the ancestor of these parties, died on the 13th day of December, 1903, as contended by the complainants, then the title to the land vested, under the statute, absolutely in the surviving widow, the mother of these parties; and upon her death intestate, which was the case here, the inheritance passed from the mother — and not from the father — to the complainants and respondent. The testimony was in conflict as to the true date of the death of Eldridge Sims. The weight of evidence, however, as determined by the chancellor — and we concur in his conclusion — showed that event to have happened on the 13th day of December, 1893. In the note of the submission of the cause there were no objections to the evidence offered by either side, and [144] the chancellor was not required to consider objections made before the commissioner in the taking of depositions of witnesses, when not presented to him by the note of submission. The conclusions of the chancellor on the facts are supported by a decided weight of the evidence, and his determination of the facts wholly eliminated from consideration the question of advancements made by the father, Eldridge Sims,-to the children, as the title to the property in suit descended from the mother. The decree appealed from is affirmed. Affirmed. Simpson, McClellan, and Mayfield, JJ.x concur.