Foster v. Elledge , 106 Ark. 342 ( 1913 )

Kirby, J.

(after stating the facts). Appellants’ allegations that they were the children and only heirs of D. S. Foster; that he was the owner of the land in his life time and occupied same as his homestead and died seized and possessed thereof are statements of fact sufficient to show prima facie title in them, as required under the law. Section 2742 Kirby’s Digest; Shirey v. Culberhouse, 41 Ark. 98.

Appellee, having admitted the former ownership of the lands by appellants ’ ancestor and claiming the lands through the same common source of title, upon the introduction of proof, showing that they were the sole and only heirs of D. S. Foster it would have established a prima facie title and devolved the burden upon appellee •to defeat the title to show that the ancestor had conveyed the land away, or that his heirs were barred by the statute of limitations. Shirey v. Culberhouse, supra; Weaver v. Rush, 62 Ark. 56; Smith v. Lattsch, 114 Ill. 271, 2d N. E. 59; Nicklace v. Dickinson, 65 Ark. 422.

The issue as to the ownership of the land in controversy was formed by the pleadings and certainly appellants were entitled to a trial upon such issue made. The exhibits to the pleadings are not evidence in the case, as snch exhibits, and, upon the trial, as already said, the burden of proof would have devolved upon appellee to show that the lands had passed by proper conveyance away from the ancestor of appellants, or that his heirs were barred to claim them by the statute of limitations. They could have shown the payment of the mortgage, or any other facts, relating thereto, which would have rendered it inoperative and allowed the property to revert to the grantor without a reconveyance thereof. Cornish v. Dews et al., 18 Ark. 183; 2 Washburn Real Property, 1021; Kitchen v. Jones, 87 Ark. 504.

Appellants also contend that the court erred in overruling their exceptions to exhibit ‘ ‘ C ” to the answer, and are correct in this contention.

The trustee derived his authority to sell and convey the lands from the power of sale contained in the mortgage and the purpose for which the trust was created and the power given having been fully performed by the sale and conveyance of the lands in the first instance his power was at an end and he was without authority to execute another deed years thereafter, the recitals of which would be evidence thereof. Badgett v. Keating, 31 Ark. 409; Pillow v. Wade, 31 Ark. 682; 2 Perry on Trusts, Sec. 602-aa, 27 Cyc. 1511. If there was a valid sale and conveyance of the lands by the trustee, it was effectual to pass the title to the purchaser and it could not be divested by the loss or destruction of such deed of conveyance. Cunningham v. Williams, 42 Ark. 170; Campbell v. Jones, 52 Ark. 493; Waters v. Wagley, 53 Ark. 509. The lost deed could have been proved upon proper allegations of the answer relative thereto by competent evidence; (Stewart v. Scott, 57 Ark. 153; Callaway v. Cossart, 45 Ark. 81; Carpenter v. Jones, 76 Ark. 163), but it could not be supplied or restored as was attempted to be done herein by filing as an exhibit to the answer a substituted trustee’s deed, reciting the facts. The exhibits are no part of the pleadings in an action of ejectment, can not be made substitutes therefor, nor used to supply deficiencies therein. Percifull v. Platt, 36 Ark. 462.

For these errors the judgment is reversed and the cause remanded for a new trial.