In 1894 appellant bought and paid for this land. Unfortunately for *Page 652 her, the wife of her grantor was a minor at the time of the sale. In 1897 appellee elected to disaffirm the transaction and to retain possession under her dower and homestead rights. This possession is now declared by the majority to have ripened into title, although, as I shall endeavor to show, there has never been a time when appellant could have successfully asserted a right to possession.
I do not understand that the majority disagree with my view as to the effect of the occurrences before 1920. The appellee pleaded her minority in the 1897 action in ejectment. This was a sufficient disaffirmance. Williston on Contracts, 231. We have held that a wife may disaffirm a release of dower executed during her minority and reassert her interest in the land. Watson v. Billings,38 Ark. 278, 42 Am. Rep. 1. I think the same rule applies to the release of homestead in the rare cases, such as this one, in which the couple have not abandoned the homestead by termination of occupancy before the wife elects to disaffirm. Of course a husband's conveyance of the homestead is void if his wife does not join in the deed, while that is not true when she merely fails to release dower. But the conclusion reached in Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409, in an analogous situation, is practically decisive as to the appellee's privilege of reasserting her homestead right.
Thus until 1920 the appellee's possession was by virtue of her homestead interest. (She also had unassigned dower in the land.) In the record before us, which includes by stipulation the proceedings in the earlier cases, there is nothing to indicate that before 1920 the appellee ever brought home to the appellant any notice of a claim of adverse possession. Her first assertion of an adverse holding was made in her answer in the 1920 suit, in which appellant sought to quiet her title to the land. The pivotal question in this case is whether appellee's plea of adverse possession in 1920 set the statute of limitations in motion. The majority say that in the face of that plea the appellant should have brought an action at law for possession. I am convinced that such an action would not have been successful. *Page 653
In 1920 the appellee was vested with a homestead right for life; her dower interest was also a life estate, her husband's estate having been ancestral. The appellant owned the remainder. She brought suit to quiet title, the appellee interposing a plea of adverse possession. That cases was not decided on the merits. It was enough to defeat equity jurisdiction for the appellee to show that she was in possession, whether adversely or not. Reference to the appellee's brief upon that appeal reveals that she was content to rely upon possession alone, regardless of its adverse character. In her brief she admitted that it was unnecessary for her to prove adverse possession, saying, "It is sufficient that appellant at the time of instituting her suit was not in possession of the property." All this court did was to agree with tier contention.
In order to protect her rights it was not necessary that appellant bring a suit that she would have lost. "No one can be in default in not bringing an action which he could not have maintained, if brought." Smith v. Maberry, 148 Ark. 216, 229 S.W. 718. Had appellant brought ejectment within seven years after the plea of adverse possession was filed, she could have prevailed only if the appellee were estopped to claim her dower and homestead rights. Although one may be estopped by having taken a certain position in earlier litigation, it is necessary either that the party shall have prevailed by reason of that position or that his opponent shall have changed his own position in reliance thereon. Neither requisite is present here. The appellee won the 1920 case not because she pleaded adverse possession but because she proved her own actual possession. She had simply pleaded more than she had to prove to win her case. Obviously appellant has not changed her own position in reliance on the plea. This it is clear that appellant could not have maintained ejectment as long as the appellee had her life interest. It follows that the statute has never begun to run; so the decree should be reversed. *Page 654