Cunningham v. Dellmon

Hart, J. (after stating* the facts). According to the allegations of the complaint, Jas. M. Cunningham resided on the lots owned by him in block 33 in D. Harding’s Addition to Pine Bluff, Ark., at the time he died on the 24th day of December, 1889, and the same constituted his homestead. A guardian was appointed for said minors on the 13th day of July, 1892, and his petition for the sale of the reversionary interest of said minors in said homestead, as well as other lands, was presented to the probate court, and a sale duly had pursuant to an order made by said probate court. It was not alleged in said petition, or shown in said order for tiie sale of said lands, that there were no debts against the estate of said minors. It also appears from the allegations of the complaint that the mother of appellant, who was also the widow of Jas. M. Cunningham, deceased, abandoned her homestead rights and had the homestead, together with other lands described in the complaint, allotted to her as dower. According to the allegations of the complaint, she filed her petition for dower on the 24th day of February, 1892. Her petition for dower and the order of the court granting the same are made exhibits to the complaint and are set out in our statement of facts. The report of the commissioners setting aside dower and the confirmation of the same by the probate court are also made exhibits to the complaint. In each of them the lands involved in this lawsuit are described as follows: “Pt. NW% of NW14 sec. 15, Tp. 6 S., R. 9 West, 13 acres. 48 feet x 123 Blk. 33, I). H. Addition to P. B. in Jefferson Co.” The description of the lands is too indefinite to constitute a valid and binding allotment of dower. It would be impossible from the description to locate the lands and determine what land was actually set apart to the widow as dower. Deeds containing similar descriptions have been uniformly held void on their face. Evans v. Russ, 131 Ark. 335, and cases cited; Peters v. Priest, 134 Ark. 161; Glasscock v. Mallory, 139 Ark. 83; and Conolly v. Rosen, 144 Ark. 442. Again, the attempted allotment of dower is void because it affirmatively appears from the proceeding's that the statute was not complied with. Section 3547 of Crawford & Moses’ Digest prescribes the procedure for the assignment of dower in the probate court. It reads as follows: “If dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file in the court of probate, or in the clerk’s office thereof in vacation, a written petition, in which a description of the lands in which she claims dower, the names of those having interest therein, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the allotment of dower; and thereupon all persons interested in the property shall be summoned to appear and answer the petition on the first day of the next term of the court.” The statute contemplates that there shall be an adversary proceeding between the widow and those having an interest in the lands, and that all persons interested in the property shall be summoned. The petition of the widow, the order of the probate court allotting dower, the report of the commissioner, and the order of the probate court confirming tbe same all show that the proceedings were not adversary in character, and that there was nothing but an ex parte proceeding on the part of the widow. It is true that the complaint alleges that the persons interested in the property were named in the proceedings. The proceedings, however, are made exhibits to the complaint and show to the contrary. The proceedings themselves affirmatively show that the statute was not complied with. Under the practice in equity, exhibits will control the averments of the compaint and the nature of che cause of action. Cox v. Smith, 99 Ark. 218, and Murrey v. L. R. Chamber of Commerce, 135 Ark. 38. Again, it is alleged in the complaint that the minors appeared by their guardian in the proceedings in the probate court for the allotment of dower. The probate court proceedings show affirmatively that there was no appearance 'by the guardian of said minors, and, as we have just seen, the exhibits will control the averments of the complaint. It follows, therefore, for both reasons above stated, that the proceedings for the allotment of dower were void and of no effect. It is contended, however, by counsel for appellant, that the probate sale of the homestead is void because the proceedings do not show that there were no debts against the estate of the minors, and that the case is governed by the rule announced in Ex parte Tipton, 123 Ark. 389, and Rushing v. Horner, 130 Ark. 21. On the other hand, it is claimed by counsel for appellees that the rule announced in these cases has no application to the present case, and that under the allegations of the complaint it affirmatively appears that appellant is barred of relief by the statutes of limitations. In this respect counsel for appellees rely upon the case of Griffin v. Dunn, 79 Ark. 408. In that case the court held that, while the statute of limitations does not run against a cause of action in favor of the heirs for the recovery of the homestead during the occupancy by the •widow, an attempt by ber to alienate the homestead operates as an abandonment of the homestead, in which event the right of action of the heirs becomes complete, and the- statute of limitations begins to run against them. The court also held that our statute of limitations relating to purchasers of land at judicial sales applies to a case where the right of action accrues after the date of such sale and within the period of five years, provided that the period of time between the completion of the right of action and the expiration of five years from the date of sale is not too short to allow a reasonable opportunity within which the right may be asserted. Under this rule we are of the opinion that appellant’s cause of action is barred by the statute of limitations. It is true that the allegations of the complaint are somewhat obscure, but, treating the pleading in the light that the parties themselves seemed to have treated it, the case is one calling for the application of the rule. In Dowell v. Boyd, 140 Ark. 52, it was held that an obscure pleading will be treated in the light in which the parties themselves treat it. In the original complaint, the partjr who now claims the land which comprised the homestead of Jas. M. Cunningham at the time of his death on the 24th day of December, 1889, was alone made a defendant. The original complaint alleges that he is in the unlawful possession of the same, claiming to be owner thereof by mesne conveyances from those holding under and by virtue of •the guardian’sí sale. Other allegations show that-the order for the guardian’s sale was made at the July term, 1892, of the probate court, and that the sale was duly made. The original complaint, continuing, alleges that after a short space of time, and while appellant was a very small child, his mother moved off of the land to another county, and that appellant was not aware that his father ever owned said land until he was informed of his rights by his grandmother, a short time before this suit, was filed, and after the death of his mother in 1915. It is fairly inferable, from these allegations that the mother of appellant sold the homestead and that the purchaser went into possession of the same soon after the guardian’s sale was made in 1892. Appellant alleges that he was born on the 20th day of November, 1889. This shows that he was not quite three years old when the guardian’s sale was had. He alleges that his mother moved away from the homestead when he was a very small child, and that he did not know that his father ever owned the land until after his mother died in 1915, and a short time before he filed this suit in 1917. It is fairly inferable from this that his mother abandoned the homestead by selling it, and that the purchaser went into the possession of it soon after the guardian’s sale in 1892. In a suit in equity the exhibits may be looked to on demurrer for the purpose of testing the sufficiency of the allegations of the complaint. The bar of the statute of limitations may be pleaded by demurrer in equity when the complaint shows affirmatively that the statutory period has elapsed since the accrual of the cause of action. Evans v. Pettus, 112 Ark. 572. The view that the complaint shows an abandonment of the homestead by the widow, and that the purchaser went into possession within five years after the guardian’s sale, is strengthened by the allegations of the amended complaint. From that portion of it which we have copied in our statement of facts, appellant alleges that “the said Ida G. Cunningham is said to have sold said lands.” Again we find this allegation, “that when the said Ida G. Cunningham sold said lands she abandoned her homestead rights therein, but she had before ignored and abandoned all her homestead rights in said land by having elected to take the same as a part of her dower,” etc. Therefore, we hold that it is fairly inferable from the allegations of the complaint that the mother of appellant abandoned the homestead by selling it, and the statute of limitations then commenced to run against appellant. He is barred of relief, either under the five-year statute of limitations relating to purchasers at judicial sales, or the seven-year statute relating to actions generally to recover land. Crawford & Moses’ Digest, sections 6942 and 6946. Bach of these statutes contains a saving clause to minors for a period of three years after their disabilities shall have been removed. In the present case the statute began to run when appellant was a minor, and he waited until nearly seven years after becoming twenty-one years old before he commenced this suit. With regard to the lands which were not the homestead, the same rule applies. They were also sold at the guardian’s sale under orders of the probate court, and the five-year statute of limitations for the recovery of lands sold at judicial sales applies. This statute was intended to require all parties to bring suit against all purchasers at judicial sales within five years after the date of sale, where the purchasers entered into possession of the land within five years. As we have already seen, it is fairly inferable that the purchasers went into possession of the lands soon after the sale was made, and appellant is barred of relief under the five-year statute against purchasers at judicial sales and also under the seven-year statute governing actions generally to recover land. Again, it is contended that the mother of Jas. M. Cunningham, Jr., inherited an estate for life in his share of the lands when he died, and that appellant inherited from her when she died in 1915. Hence they contend that in any event appellant is entitled to recover one-half of the land under our statute of descents and distributions. We do not agree with counsel in this contention. Jas. M. Cunningham, Jr., inherited the lands from his father and died without descendants. In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and bis heirs. Crawford & Moses’ Digest, § 3480. See also Carter v. Carter, 129 Ark. 7. Appellant was the brother and sole heir at law of Jas. M. Cunningham, Jr., and he, and not the mother, inherited from Jas. M. Cunningham, Jr., at his death. Therefore, the decree will be affirmed.