Cottonwood Lumber Co. v. Walker , 1912 Ark. LEXIS 322 ( 1912 )

Wood, J.,

(after stating the facts). The allegations of the original complaint showed that appellee and others, the heirs of Josiah Hawkins, deceased, brought this suit as tenants in common, setting up that their ancestor died intestate, leaving them as his heirs and that as such they inherited the land in controversy. They therefore set up title to the land by descent. The facts alleged in the complaint showed that the appellee was not seeking to recover the entire tract for the benefit of the other tenants in common. We do not decide therefore in this case the question as to whether one tenant in common can maintain ejectment in this State for the benefit of himself and the other tenants in common for the lands owned by them as tenants in common. That question is not raised under the allegations of the original complaint. All the tenants in common join in the suit for lands which they claim by descent. Under our statute, of descents and distributions, where lands are owned by tenants in common by descent they are distributed in equal shares to the tenants in common. Kirby’s Digest, § 2636; 29 Cyc. p. 1557.

So far as the individual tenants in common are concerned, the original complaint must be treated as a suit by them to recover their several and individual interests in the land in controversy as tenants in parcenary, or in equal shares. The appellee, Mrs. Walker, was claiming title and the right to recover the possession of only a one-eighth interest, as that was her share of the land in controversy. When the amendment to the complaint was filed it changed the cause of action entirely as to all the lands except her undivided one-eighth interest; for by the amendment to the complaint she claimed title to and the right of possession of the whole tract under a will from her father. The amendment to. the complaint, in legal effect, was a dismissal of the original cause of action except as to the appellee. Prior to the filing of the amendment to the complaint the appellee did not set up any claim of title to or right to the possession, in her own name, of the entire tract of land in controversy. The allegations of the amendment to the complaint as to the right of possession of all the lands in controversy, except the undivided one-eighth interest claimed by the appellee, are entirely inconsistent with the evidence which would have been required to establish the allegations of the original complaint. The evidence which would have been required to establish the allegations of the amendment to the complaint would have defeated the allegations of the original complaint to all the lands except the undivided interest of the appellee. The evidence of title exhibited with the amendment to the complaint proves that all the plaintiffs except the appellee were not entitled to any interest in the lands in controversy, and that she was entitled to recover the entire interest unless barred by the statute of limitations.

If there had been no amendment to the complaint and the cause had proceeded to judgment in favor of the original plaintiffs, such judgments would have been a bar to recovery by appellee of any interest in the land except her undivided one-eighth; for as to the remaining seven-eighths the judgment would have been in favor of the other tenants in common with her.

“It has been declared to be a fair test in determining whether a new cause of action is alleged in an amendment to inquire if a recovery had upon the original complaint would be a bar to any recovery under the amended complaint, or if the same evidence would support both.” Vol. 1, Ene. PI. & Pr. p. 556, and cases cited; Black on Judgments, § 726; Whalen v. Gordon, 95 Fed. Rep. 305.

In the case of White v. Moss, 18 S. E. 13, Sarah White and others as joint plaintiffs brought an action in ejectment against Moss and Childs for the recovery of a tract of land. The action was brought at the September term, 1884, and the cause was dismissed at the September term, 1886. On February 12, 1887, Sarah White alone brought suit to recover the lands. The statute provided that, if a plaintiff shall dismiss his case and recommence the same within six months, such renewed case shall stand upon the same footing as to limitations with the original case. The court said: “We think it too plain for argument that this last suit is in no sense a renewal or recommencement of the former one. No suit by two persons can be the same as by one of them, and it is absolutely clear that the suit in which the plaintiff is now seeking a recovery is not the same action as that in which she formerly sought to recover jointly with another person.”

So here, as we have stated, the filing of the amendment to the complaint was tantamount to a dismissal of the cause of action as to all of the original plaintiffs except the appellee, and as to her except as to her undivided one-eighth interest. She did not disclose her claim of title to the other seven-eighths until the filing of the amendment to the complaint in 1912, and as to this it is precisely the same as if appellee were seeking to recover on a title acquired subsequent to the commencement of her first action.

In Gannon v. Moore, 83 Ark. 196, we said: “If, after the action was commenced, the plaintiffs had bought or inherited a new title to the land, and had undertaken to amend their pleadings and recover on this new title, this would be bringing in a new cause of action, for this new evidence would show that at the time the original action was brought plaintiffs had no right to possession, and therefore had no cause of action, and that their right to possession and their cause of action was subsequent to the commencement of their suit.” See also to the same effect Covington v. Berry, 76 Ark. 460.

We conclude therefore that the filing of the amendment to the complaint was a new cause of action as to the seven-eighths interest in the land not included in the original complaint, and as to this the statute of limitations began to run from the time the appellants took possession under their tax deed in 1908, and continued until the amnedment to the complaint was filed in 1912, which would give the appellants title to this under either the two or the seven years’ statute of limitations.

“The statute of limitations continues to run as to the cause of action not included in the original complaint, but first set up in an amendment thereto until the filing of such amendment.” Womack v. Askew, 97 Ark. 19; C., O. & G. Ry. Co. v. Hickey, 81 Ark. 579; Partick v. Whitely, 75 Ark. 465; Wood v. Wood, 59 Ark. 441-446.

As to the undivided one-eighth interest claimed by the appellee in the original complaint, the amendment did not ehange the cause of action and operate as a new suit for the reason that in the amendment she was claiming title and the right to possession of the whole tract, which would include all the parts thereof. True the evidence of title by which she claimed under the amendment to the complaint was entirely different from that set up in the original complaint, but that could make no difference. If the appellee owned the whole tract of land in controversy at the time the original suit was instituted in 1904, the fact that she made a mistake in alleging the evidence of title under which she claimed is not material and did not defeat her right to recover the whole or any part thereof at that time. But at that time, as we have shown, she was only claiming and seeking to recover an undivided one-eighth interest. On this point what was said by us in Gannon v. Moore, supra, is apposite here: This was an action of ejectment to recover possession of this land, and, so soon as it was commenced against the defendants, the statute was tolled as to title held by the plaintiffs at that time. Nor was there any new cause of action set up by the amendment referred to. The cause of action consisted of the fact that defehdants wrongfully withheld from plaintiffs the possession of land owned by them. The chain of title by which plaintiffs seek to prove that they were entitled to possession is not the cause of action, but the evidence of it.”

In Covington v. Berry, supra, we said concerning this: “The mere fact that plaintiff did not properly set out his chain of title in one or the other of these suits would, we think, on this point be immaterial if he was in fact the owner of, and seeking to sustain, the same title in such action.”

It follows therefore that the appellee is not barred by the statute of limitations as to an undivided one-eighth interest in the land in controversy. The judgment of the circuit court is modified and affirmed so as to give appellee the right of possession to an undivided one-eighth of the land in controversy, and as to the remaining undivided seven-eighths the judgment will be reversed and 'remanded with directions to enter judgment in favor of the appellants.

Hart, J., dissents. Chief Justice McCulloch, not participating.