Martin v. Certain Lands Lying in Izard County , 9 Ark. App. 181 ( 1983 )

Donald L. Corbin, Judge.

Appellee, L. A. Harvell, filed an action to quiet title to 120 acres of land situated in Izard County, Arkansas. Appellants intervened claiming that they, together with appellee, were tenants in common having derived their ownership by intestate succession. Appellee alleged he had acquired their interest by adverse possession. The chancellor found for appellee on the basis of adverse possession. We affirm.

For reversal, appellants contend that the chancellor’s findings and decree are against the preponderance of the evidence in that the proof was insufficient to establish adverse possession by one tenant in common against another tenant in common.

The general rules for establishing title by adverse possession are set out in many Arkansas cases. In the case of Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973), the Supreme Court stated:

Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or title holder before his title is in any way affected by the possession, and the word ‘adverse’ carries considerable weight . . . One of the cardinal principles of adverse possession in order that it may ripen into ownership is that the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accom - panied with an intent to hold against the true owner.

The law on adverse possession as to tenants in common is set forth in the case of Coulson v. Hillmer, 271 Ark. 890, 612 S.W.2d 124 (Ark. App. 1981), as follows:

In Dodson v. Muldrew, 239 Ark. 202, 388 S.W.2d 90 (1965), the Court refers to the rule in Singer v. Naron, 99 Ark. 446, 138 S.W. 958, an earlier case with approval. The reason is that possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, for the possession of one tenant in common to be adverse to that of his co -tenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be pre - sumed. In order for the possession for the tenant in common to be adverse to that of his co-tenant, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be pre - sumed.

Between tenants in common there is also a fiduciary relationship, for they stand by operation of law in a confidential relation to each other, as to the joint property, and the duty is imposed on them to protect and secure their common interests. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974).

The parties in the instant case stipulated that Samuel Wilson Harvell died in 1913 seized and possessed of 120 acres and that he had nine children, all of whom were deceased except appellee L. A. Harvell and Martha Sims, one of appellants.

The record reflects that L. A. Harvell lived continuously on the property from 1913 to 1946. He moved to adjoining property in 1946 but continued to use the land up to the present time, a total of 69 years. It was undisputed that appellee had sole possession of the property since 1913.

The record further reflects that there was a debt secured by a lien on the property at the time of Samuel Wilson Harvey’s death in 1913. Appellee testified that he talked with his four brothers, now deceased, and they agreed that if appellee would pay the debt, appellee could have the land. Appellee paid the debt off in five years.

Appellee and his witnesses testified that appellee had used the land continuously from 1913 to 1946, repairing the house and barn, fixing the fences, digging a pond, cutting timber, cultivating a small portion of the land and cutting firewood from it. There was also testimony that appellee pastured the lands and ran cattle on it. The record indicates that after appellee left the property in 1946, he continued to keep the buildings in repair and placed a wire fence around the 120 acres.

Appellants produced two witnesses at trial, Martha Sims, sister of appellee who was 96 years old, and her son, Adam Sims. She testified that after her father died in 1913, appellee lived on the property and raised his family there. She said she knew appellee had sold timber off the land and that she never objected to appellee doing so. Her son, Adam Sims, testified that there had been discussions in years earlier among his uncles and aunts concerning a division of the property but nothing was done because they did not want to aggravate appellee. He further testified that one of these discussions among his aunts and uncles took place before 1946. He said he had known for fifty years that there would be a controversy about who owned the land and that the heirs let appellee continue to live there to avoid the “showdown”. It was undisputed that appellee had paid the taxes on the disputed property during the 69 years of his possession.

The actions in the instant case are similar to those described in Jones v. Morgan, 196 Ark. 1153, 121 S.W.2d 96 (1938). In that case Morgan lived on, or leased out, property that had been owned by his parents until their death. “He sold the crops, paid taxes, disposed of timber, made improvements, executed an oil lease, and in all respects treated the possession as one vesting exclusively in himself.” This occurred during the period from 1900 to 1936, and his brothers and sisters permitted him to occupy and cultivate the place and to hold out to others that he was the owner. The Court there held that such actions were tantamount to a declaration of hostility to the claims of all persons, includ - ing people who claimed as co -tenants. The Court noted the following:

It is true there is no testimony that Morgan ever said to his sister or brothers, or to those claiming through them, "I am claiming this land as my own; I deny your interest in it; take notice of my attitude.” Nothing of this kind occurred; and yet, for more than thirty years, his conduct, his situation, and his actions in dealings affecting the property, were tantamount to a declara - tion of hostility to the claims of all persons — and “all persons” included those descending from the Morgans.

It is highly improbable appellants were ignorant of what others knew so well. Edwards v. Swilley, ante p. 633, 118 S.W.2d 584.

Another similar case is Hildreth v. Hildreth, 210 Ark. 342, 196 S.W.2d 353 (1946). In that case the Court found that the co - tenants:

For more than 20 years sat by, knew that S. D. Hildreth and appellee were making permanent and costly im - provements; that they were living thereon, paying all the taxes and otherwise exercising all the acts of ownership. It was their duty to speak then, and, not having done so, equity will deny them the right to speak now.

As the chancellor in the case at bar noted, the other co -tenants “... had at one point long ago discussed trying to split up the land but decided not to attempt to oust appellee from the land because it would cause a ‘showdown’ if they tried . . . ”. This is a patent recognition on the part of the co-tenants of the hostile character of appellee’s possession. This took place, according to the testimony, prior to 1946 and, therefore, before L. A. Harvell ceased living on the property. Approximately thirty-six more years elapsed without any of the co -tenants making any claim of owner - ship to the property. To construe such inaction on the part of the co-tenants as anything less than sleeping on their rights would be, to quote from Jones v. Morgan, supra, “... out of harmony with every rule of reason and contrary to a preponderance of the testimony . . . ”.

As this Court has often stated, the Chancellor will not be reversed unless his findings are clearly erroneous or against the preponderance of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. DaCosse v. Ahrens, 2 Ark. App. 61, 616 S.W.2d 777 (1981); ARCP Rule 52 (a). Since preponderance turns largely upon the credibility of the witnesses, the appellate courts defer to the superior position of the chancellor in that regard. Mack Financial Corp. v. Carter Oil Co., Inc., 2 Ark. App. 48, 616 S.W.2d 769 (1981). From the evidence presented, the chancellor found that appellee had discharged his heavy burden of establishing ownership by adverse possession and we cannot say this was clearly erroneous.

Affirmed.

Glaze, J., dissents.