Reed v. Money

Wood, J., (after stating the facts). 1. The' testimony shows that the appellees and those under whom they claim had been in the open,' peaceable, continuous and adverse possession of the land in controversy for.a period of about fifty-seven years. They had cultivated the lands, paid taxes and made improvements thereon. 'In the recent case of Carter v. Goodson et al., 114 Ark. 62, this court quoted from United States v. Chaves, 159 U. S. 452, in part, as follows: “If the adverse claim could ■have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long continued peaceful enjoyment.” And also from Fletcher v. Fuller, 120 U. S. 534, as follows: “When possession and use are long continued they create a presumption of lauTful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. ’ ’ Judge Hart, speaking for the court, in Carter v. Goodson, supra, said: “When we consider the further fact that the land has been in the possession of Eppy White and his grantees ever .since the year-1857, and that these parties have cleared the land, made improvements on it, cultivated it and paid taxes on it, we think the circuit court was justified in finding that a grant had been made to Eppy White. ’ ’ (1) So under the facts disclosed by the present record, it will be conclusively presumed that Dr. James H. Smith, under whom .appellees claim, acquired his deed from those who had authority to make it. While there is no record of a deed from Isaiah Hickman, appellant’s ancestor, to James F. Gaines, through whom the appellees claim by virtue of a deed from his executors to James H. Smith, and through mesne conveyances to appellee, W. J. Money, yet after this lapse of time and the continuous possession and exercise of ownership over the lands by appellees .and those through whom they claim, a presumption of a grant from Hickman, the original owner, to James P. Gaines will arise, and likewise authority in the executors of Gaines to execute the deed to Dr. James H. Smith, through whom appellees claim. The deed to Doctor Smith from the .executors of Gaines was fifty-five years old. The testimony shows that the deed records of Scott County, recording that which would have taken place during the lifetime of Hickman and- Gaines, had been destroyed by fire. After the death of these parties and the destruction by fire of the record of conveyances that were made in those times, the law will presume that Hickman conveyed the property in controversy to Gaines, .and that the executors of Gaines were duly authorized to execute the deed to Dr. James H. Smith, through whom appellees claim title. The law will presume from the deed to Doctor Smith, which was fifty-five years old at the time this suit was brought, and the continuous possession thereunder, that the title was properly vested in Mm by those under whose deed he claimed title and went into possession. (2) Moreover, appellant is barred by the statute of limitations. Appellant was three years old at the time that Doctor Smith went into the adverse possession of the land under Ms deed. Her right accrued as soon as Doctor Smith took possession under his deed. While appellant was not barred, on account of nonage, until three years after she reached her majority, she was barred after that time. There is nothing to warrant a finding that appellant was 'kept in ignorance of her rights through any .fraud or deception practiced on her by the appellees or those under whom they claim. Appellant could have. brought her suit at any time before 1874; 'after that time she was barred. Kirby’s Digest, § 5056. (3) Appellant contends that her marriage to Reed in 1871, before she reached her majority, prevented the bar of the statute of limitations on account of nonage attaching. But appellant can not tack her disability of coverture and nonage in order to prevent the bar of the statute, for at the time her alleged cause of action accrued she did not labor under a double disability. She was an infant at that time, but she was not 'also a married woman. No cumulative disability shall prevent the bar of the statute of limitations. Last idause of section 5056, supra. A married woman can not taick her coverture to her infancy to avoid the statute of limitations. Millington v. Hill, Fontaine & Co., 47 Ark. 301. In Stull v. Harris, 51 Ark. 297, Chief Justice Cock-rill, speaMng for the court, 'said: “It is the statutory rule of this State that when there are two coexisting disabilities when the action accrued, the party is not bound to act until the last is removed.” Appellant cites this and other cases in which the court held that where a party labors under the double disability of infancy and coverture at the time the cause of action accrued such party is not bound to act until the last disability is removed, but those cases have no application here, for the’ reason that appellant was not laboring under a double disability of infancy and coverture at the time her cause of action ■accrued. The judgment is correct. Affirmed.