This is a proceeding brought by appellee on July 26, 1940, in the probate court to have her dower assigned in certain lands in Pope county, described in her petition. She alleged that her late husband, J. T. Robertson who died in said county on January 6, 1934, became seized of an estate of inheritance in said lands and that she had never relinquished her dower therein. She prayed that dower be set apart to her and for judgment for one-third the rental value of said lands, appellants having been in possession thereof at all times since her husband’s death.
No answer appears to have been filed to this petition, but appellants appeared and defended the action. In addition to witnesses who testified as to the rental value of said lands, appellants introduced the record of the decree of the Pope chancery court in the case of Dora Robertson, et al., v. W. J. Chronister, et at., in which the title to. the same land now under' consideration and in which dower is now sought was involved, and in which the court found: “That on said date, to-wit: December 5, 1929, the said J. T. Robertson and the plaintiff, Dora Robertson, executed their warranty deed with relinquishment of dower to the undivided five-sixths (5/6) interest, and also the life estate of J. T. Robertson in and to the remaining. one-sixth (1/6) interest of Ella Edwards Robertson, the first wife of J. T. Robertson, in and to the following described lands”: (Describing the lands now here involved) to appellants in the case at bar for a consideration of $3,000, which deed was duly acknowledged and was recorded promptly. The court found that the lands were inaccurately described in said deed and reformed the description to describe correctly and accurately the lands so conveyed. The decree then provided: “The court doth further find that by the deeds herein above set out in said decree all of said plaintiffs intended to and did convey all of their interest in and to all of the lands so above described to the defendants, Chronister Brothers & Company, except the plaintiffs, Florence Robertson Garrison and Roy Robertson, and that the complaint as to each of said plaintiffs, except said Florence Robertson Garrison and Roy Robertson, be dismissed for want of equity. ’ ’ A decree was entered to this effect September 7, 1937.
Appellants also introduced a supplemental and amendatory decree of said court of May 8, 1939, and entered nunc pro tuno on June 12, 1939, further adjudicating the rights of said Florence Garrison and Roy Robertson. They also introduced the warranty deed from J. T. Robertson and Dora Robertson to the appellants,
W. J, Chronister also testified in the case,
From all of which the court found that J. T. Robertson was seized of an estate of inheritance in said lands while the husband of appellee and that appellee had not relinquished her dower in legal form and was not barred by limitations. A judgment was entered awarding dower to her and appointing commissioners to lay it off. This appeal followed.
We think the trial court fell into error. By this judgment, the chancery court has set aside and annulled two former decrees of the trial court, both of which were appealed to this court and affirmed — one, Robertson v. Chronister, 196 Ark. 141, 116 S. W. 2d 1048, and the other, Robertson v. Chronister, 199 Ark. 373, 134 S. W. 2d 517. In the former appeal (196 Ark. 141) we said: “This is a case where the heirs of the grantor are attempting to recover lands which their grantor sold to appellees for a valuable consideration and put the purchasers or appellees in possession thereof under a faulty description in the deed and upon which appellees made valuable improvements and paid the taxes and remained in possession thereof for more than seven years. There is no question that the lands which were intended to be conveyed were the lands that the grantor sold to the appellees and for which the grantor received the entire purchase price.”
While appellants may not have filed a formal answer to the petition for dower by appellee, we think the introduction of the former decrees of the chancery court and of said deed without objection amounted to a plea of res judicata which should have been sustained in bar of the action.
In effect the action of the probate court in the premises was again to try the title to said lands and overrule both the decrees of the chancery court and the judgment of this court which held that appellee and her husband, in his lifetime, to-wit, December 5, 1929, had conveyed said lands to appellants by warranty deed in which appellee relinquished her dower, for a good and valuable consideration. The probate court has no such jurisdiction. Moss v. Moose, 184 Ark. 798, 44 S. W. 2d 825; Ellsworth, Admr., v. Cornes, 204 Ark. 756, 165 S. W. 2d 57.
The judgment is accordingly reversed and the cause dismissed.