Shirk v. Williamson

50 Ark. 562

• Court: Supreme Court of Arkansas
• Decided: May 15, 1888
• Status: Published

Opinion

OPINION.

Cockmll, C. J.

Both parties claim title through» James M. Williamson — one by deed, the other by devise.

I. The plaintiff’s claim of a devise, which was particularly alleged in the complaint, was not specifically denied by the answer, and was not, therefore,'put in issue. The formal general denial goes for naught. Gwynn v. McCauley, 32 Ark., 97; Hecht v. Caughron, 46 Ark., 132. The effect of the answer was to admit that whatever interest James M, Williamson had in, the lands, at his death passed to tiñe. plaintiff by the will, and to tender the issue of a superior title in the defendant, It was not necessary, therefore, for the plaintiff to adduce proof that she had succeeded to whatever title James M. Williamson had at his death.

II. The appellant, who was the defendant below, claimed under a conveyance executed in the lifetime of James M. Williamson by one T. B. Mills, as his attorney. Mills held a power of attorney from Williamson authorizing him to sell the lands. The conveyance he executed is in form a deed, but the answer virtually concedes what all the proof tends to establish, that it was in reality a mortgage made to secure Mills’ individual debt to the defendant. As the defendant was a party to this fraudulent transaction, he can derive no benefit from it as ¿gainst Williamson, The court was right in annulling the Mills conveyance.

III. The answer sets out the copy of a declaration, in writing, purporting to have been made by James M. Williamson, to the effect that Mills was the owner in his own right, of a one-half undivided interest in the lands; and alleged that the defendant had taken the conveyance upon the faith thereof, believing that Mills was the equitable owner of an interest in the lands as represented, and relied upon this as an estoppel pro tanto against the plaintiff. There was also exhibited with the answer an instrument purporting to have been executed by the plaintiff after her right accrued to the same effect a,s that alleged to have been executed by James M. Williamson.

The execution ofthese instruments was denied under oath by a reply filed for .that purpose, and no proof was .offered to sustain the allegations of the answer in reference to them. It was not error, therefore, to decree against the defendant on that score.

IY. As the lands are wild and unoccupied, they are in the constructive possession of the true owner, and suit to quiet title could be maintained without actual possession. The fraudulent attempt of Mills and the appellant to divest the plaintiff of her title did not operate to disseize her. Affirm.