Derryberry v. Sims ( 1979 )

David Newbern, Judge.

In this quiet title suit, a rather complicated set of facts presents a simple question. Does the filing of a complaint to quiet title on the basis of adverse possession satisfy the requirement of actual notice of plaintiffs claim of exclusive ownership to persons claiming to be cotenants? The chancellor held it was sufficient, and we affirm.

A. C. Girardot owned the 40 acres in question here. He died intestate and was survived by four daughters and one son. Three of the daughters are the appellants here. The appellees are the successors to the title of the other daughter, Louise Standridge, who filed her complaint to quiet title against her sisters in 1955.

The son of A. C. Girardot, whose name was A. D. Girardot, purchased the land from the state in 1938, after it had been forfeited for delinquent taxes. A. C. Girardot had been dead for several years. Although there is a question whether this purchase by A. D. Girardot amounted to a redemption which would have been for the benefit of himself and the other heirs, as well, we need not answer it in view of our finding that Louise obtained title by adverse possession.

A. D. Girardot conveyed the land to Louise by warranty deed dated December 14, 1940. Louise had been in possession, for a time with her mother and at least one of her sisters, since 1932. The mother died and the sister who had lived on the land, but in a separate house from Louise, left for California in 1952. This left Louise in exclusive possession. The appellants claim her possession was with their permission.

The year before Louise filed her suit to quiet title, she mailed to at least two sisters deeds which would have conveyed their interest in the land to Louise. They refused to execute the deeds, and that apparently precipitated the complaint to quiet title. In her complaint, Louise recited her warranty deed from her brother and her continuous adverse possession for more than 20 years. The appellants filed a motion to require Louise to make her complaint more definite and certain, to which Louise filed a response. The appellants did not, however, answer the complaint or seek any affirmative relief in the case until 1976, some three years after Louise had conveyed the land to others who preceded the appellees in title.

Assuming, without deciding, that the purchase by A. D. Girardot from the state might be considered a redemption on behalf of all the heirs, and thus not sufficient to convey the entire title to Louise, we are compelled to find Louise’s possession from 1955 until 1973 more than sufficient to establish her claim, and thus to establish the claim of the appellees. We recognize that adverse possession claimed against one’s cotenants must be based on clear notice to them. Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965); Staggs v. Story, 220 Ark. 823, 250 S.W. 2d 125 (1952). However, we can think of no more unequivocal way of conveying notice than by filing a suit to quiet title. The filing, in 1955, of the motion to make more definite and certain confirmed that the appellants knew of the suit.

If we were evaluating a motion to dismiss the complaint for failure to prosecute the claim we would be confronted with a very different question from the one presented here. We must keep our attention focused on the fact that Louise was in exclusive possession at the time her complaint was filed. The appellants could have answered the complaint and sought affirmative relief anytime thereafter, but they did not do so until 1976. We have no hesitancy in saying Louise’s claimed adverse possession came to fruition at least as early as seven years after her complaint was filed.

Affirmed.

Judges Howard and Penix dissent.