Neeley v. Martin

Wood, J., (after stating the facts). The deed from Narcissa Martin, the widow of Jesse Martin, to H. P. Vaughan, recites that for the consideration named, she sold the lands allotted to her as dower (describing the lands in controversy), and at the conclusion of the deed is this recital: “I am only selling whatever claim or interest I have therein, said lands having beén previously sold for taxes.” In Killeam v. Carter, 65 Ark. 70, we said: “The law wisely grants to the widow the privilege of occupy-n ing the homestead as long as she desires. But it is a privilege purely personal to her, which she can neither convey to nor share with another. She may enjoy the rents and profits only so long as she intends it as a home. Strictly speaking, she has no estate in the land itself, but only the privilege of occupancy. Alienation by her confers no rights, but it means abandonment, and the termination of her right of homestead. Not so with an estate for life. That terminates only upon the death of the life tenant.” (1) The deed of Narcissa Martin to H. P. Vaughan constituted an abandonment of her homestead, and at the same time it conveyed to Vaughan the only estate which she held in the lands, towit, her dower interest, which vested in Martin an estate in the lands during her life. Appellant contends that Vaughan and those claiming under him had adverse possession of the lands from October 4, 1877, the date of the deed of Narcissa Martin, to H. P. Vaughan. Jesse Martin died in 1872, and appellee A. B. Martin was born in 1870. He became of age the 15th of July, 1891, and he could have instituted suit three years thereafter, towit, on the 15th day of July, 1894. Appellee Artimissa McDaniel was born July 2, 1872, and became of age July 2, 1890, and could have instituted suit for these lands July 2, 1893. Although she married in 1900, her coverture is not alleged to defeat the claim of adverse possession. Appellee Elizabeth Lanford was an adult at the time of her father’s death, and her coverture also is not alleged to defeat the claim of adverse possession. Appellant therefore contends that all the appellees, after they were entitled to sue, had to take notice of the abandonment of the lands by Narcissa Martin in 1877, and of the adverse possession thereof since that time by appellant and those under whom he claims title; that more than seven years’- adverse possession by the appellant, and those under whom he claims title, had intervened since the time when appellees were entitled to sue and November, 1906, the date when they filed their petition to have the title confirmed in them. (2) This contention is unsound. The allotment of dower to Mrs. Narcissa Martin of the lands in controversy vested in her a freehold in those lands for life. Through successive conveyances this estate was vested in appellant, and he continued to hold the same until the estate terminated with the death of Mrs. Martin on January 4, 1906. “The widow to whom land is assigned as dower becomes a life tenant,” and the estate thus created ceases only at the death of such tenant. 14 Cyc. 1013. See also, Nashville Lumber Co. v. Barefield, 93 Ark. 353; Tate v. Jay, 31 Ark. 576; Killeam v. Carter, supra. (3) The possession of Mrs. Narcissa Martin and those claiming under her through successive deeds to and including appellant was not adverse to the appellees, for the possession of a life tenant or his successors in title does not become adverse to the reversioner until after the death of the life tenant. LeSieur v. Spikes, 117 Ark. 366; Rogers v. Ogburn, 116 Ark. 233, and cases cited; Martin v. Conner, 115 Ark. 359. Appellant had been in possession of the land after the death of Narcissa Martin about eleven months when appellees contested his petition for confirmation, and sought by cross action to have title confirmed and quieted in themselves. It follows that appellant acquired no title by adverse possession. (4) At the time of the sale of the land in suit by the administrator of Jesse Martin to pay the debts of his estate, these lands constituted the homestead of his minor children and the sale was therefore void. Tipton, Admr., Ex parte, 123 Ark. 389; Martin v. Conner, supra. (5) The homestead right of the minors was not affected by the widow’s abandonment of the homestead. Smith v. Scott, 92 Ark. 143; Martin v. Conner, supra. Vaughan therefore acquired no title to the lands in suit by his purchase at the probate sale, and appellant obtained no title from that source. There is no testimony in the record to warrant a finding that appellees were estopped from maintaining this suit. What we have already said shows that they are 'not barred by laches. Appellant was entitled to the possession of the lands until Narcissa Martin died. The appellees, reversioners in title, could not have maintained a suit for possession thereof until after the death of the life tenant. 1 Cyc. pp. 1057-58; Ogden v. Odgen, 60 Ark. 70; Martin v. Conner, supra; and other cases cited in brief for appellees. Appellees challenged appellant’s efforts to destroy their title as soon as he began them, and affirmatively set up their own title in opposition to his claim in less than a year after the date when they could first do so. The decree is correct and is affirmed.