Ueltzen v. Roe

Lyle Bbown, Justice.

This is a suit to quiet title "brought by plaintiffs-appellees, Billy Roe and Neva Roe Sowl, brother and sister. They brought suit against the six brothers and sisters of their mother, Maude Roe. Basing his findings on adverse possession, estoppel, and laches, the trial court vested title in appellees. Appellants contend, first, that the Roe family failed to establish hostile possession, and, second, that no notice of adverse claim was ever brought home to appellants..

Here is the opinion of the trial court. It sets out the issues with clarity and of course states the factual conclusions, together with the law found to be applicable:

OPINION

The land in controversy, a farm of about 277 acres lying southeast of the town of Graphic in Crawford County, Arkansas, was owned by Laura and R. R. Uelt-zen, wife and husband, prior to 1900. To this union six children were born, namely, Maude Roe, plaintiffs’ mother, R. T. Ueltzen, Onenta Ward, W. R. Ueltzen, Chloe Durham, and Mae Henzig. Defendant, Emma Cash, is a daughter of R. R. Ueltzen by a former marriage.

This family lived on the property until about 1913 or 1914, when B. B. Ueltzen sold all his personal property and moved to Oklahoma with his family. What happened to the property from then until Maude Boe took possession and raised her family there is not clear. B. B. Ueltzen died, seized and possessed of this land about 1925 or 1926; and his wife, Laura, continued to live in Oklahoma. In 1929 this property went delinquent and was sold for nonpayment of real estate taxes. At this time, plaintiffs and their mother- were living on ‘ ‘ Grant Farm” on Highway 64 east of Mulberry. During the time the property was in possession of persons under the tax forfeiture, all improvements were destroyed.

On April 3, 1934, Maude Boe obtained a Bedemption Deed from the State of Arkansas to this property and apparently went into possession. Here the testimony is in conflict. Plaintiffs testified that Mrs. Boe contacted her mother, Laura, and her brothers and sisters in Oklahoma, requesting them to contribute to the amount of money necessary to redeem the land; but they refused and agreed with their mother, Maude Boe, that if she would redeem the property herself, she could have it as her own property. To corroborate this testimony, Amos Watkins testified that he was an old friend of the family and about two or three years ago he met Billy Boe and B. T. Ueltzen at the store at G-raphie and in the conversation asked B.' T. Ueltzen what had happened to the old home place, and he stated to him [Watkins] that he and his brothers and sisters had given the property to their sister, Maude Boe. This is denied by the defendant, B. T. Ueltzen, and by Mae Henzig, who testified that they had not given the property to Maude Boe, but had agreed that Mrs. Boe put up the money and redeem the property in lieu of' rent.

Laura Ueltzen died intestate in Oklahoma about 1936 or 1937.

Maude Boe and her husband, shortly after 1934, moved into an old log cabin on the place, danbed the cracks with clay, and raised their family there.

Between 1934 and 1940, plaintiffs ’ father built a log share cropper’s house some distance west of the log cabin where they lived. Plaintiff Sowl later lived in this house.

About 1942, plaintiffs and their parents built a frame farm home upon this land, which was still farther west of the old log home and on the county road. They also built a barn.

From April 1934 to about 1947, the year plaintiffs’ father died, the Roes had cut from this land all merchantable timber, farmed the land for their living, keeping and using all benefits from the land.

About 1947, plaintiff Billy Boe built a two-room home on the land in controversy.

Plaintiffs testified, and the defendants did not deny, that they visited from time to time in all of these homes, spent nights there, and knew of the making of all improvements to which they did not contribute anything or claim any benefits from the farm.

On June 15, 1956, plaintiffs’ mother, Maude Roe, executed and delivered to Billy Roe and Neva Roe Sowl a warranty deed to all of said property, which deed was duly recorded shortly thereafter. About two years later, Maude Roe died, intestate.

In the latter part of 1957, Billy Roe constructed a new frame farm home on the land, where he now lives.

Plaintiffs’ mother, Maude Roe, paid all taxes upon the land in controversy for the years 1933 to 1955, inclusive, and plaintiffs have paid the taxes for the years 1956 through 1964.

Plaintiffs and defendants are tenants in common. Plaintiffs claim title to the entire tract by adverse possession. It mnst be remembered at tbe outset that the possession of one tenant in common is the possession of all tenants. Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S. W. 2d 65 ; Ashley v. Garrett, 218 Ark. 126, 234 S. W. 2d 513 ; Woolfolk v. McDonnell, 215 Ark. 34, 219 S. W. 2d 223 ; Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690. And, further, in view of the family relation stronger evidence of adverse possession is required than in the case where no snch relation exists. McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 ; Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 ; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640.

It is also well established that in order for the possession of a tenant in common to be adverse it is incumbent upon him to bring home to his coternants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. McGuire v. Wallis, supra ; Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353 ; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.

The court is faced with a difficult problem indeed. For as the court said in Linebarger v. Late, 214 Ark. 278, at p. 282, 216 S. W. 2d 56 :

“Where property is held in joint tenancy, the possession of one is deemed to be conjunctive with others, hence there is mutuality of seisin; and this status presumptively continues until some affirmative act by the joint tenant who holds for all is of such a nature as to warn other proprietors that the status has shifted from mutuality to hostility. This may be done in so many ways that judges and text writers have not undertaken an enumeration. What in one case would be sufficient as a warning might not be enough in another. Relationship of the parties, their reasonable access to the property and opportunity or necessity for dealing with it, their right to rely upon conduct and, assurances of the tenant in possession, kinship, business transactions directly or incidentally touching the primary subject matter, silence when one should have spoken, natural inferences arising from indifference — these and other means of conveying or concealing intent may be important in a particular case, but not controlling in another; for after all what a designated plaintiff or defendant had in mind when he or she consummated an act or engaged in a course of conduct often depends upon the personal equation and the individual’s method of expression. There can, therefore, be no ‘open and shut’ rule by which purpose can be measured.”

In order to arrive at a correct solution, it is necessary to look at the evidence as a whole using as a yardstick the rules above set forth.

In the cited case of Linebarger v. Late, decided in 1948, the court took' judicial knowledge that 1930 and the years immediately following were periods of economic stress when property values generally were adversely affected. The testimony that Maude Roe tried unsuccessfully to get her mother, brothers., and sisters to contribute to the fund necessary to redeem this land, coupled with the testimony of Amos Watkins to the effect that R. T. Ueltzen told him that he and his brothers and sisters had given the old home place to Maude Roe, compels the court to consider this as a circumstance in the chain of events creating a natural inference of indifference on their part. In 1934 money was scarce and it is unbelievable that Maude Roe would have raised the money alone to redeem this land for the meager future rent from a farm unimproved and at a time when there was no market for products from the operation of such a farm.

The tax deed was. recorded. It is fair to say that the defendants knew of the éxecution and recording of this deed. To establish adverse possession against his cotenants the plaintiffs have the burden of proving either that they brought notice home to them or that their conduct was so open and unequivocal that they should have known of the hostile claim. There is no testimony that the plaintiff did in so many words say to the defendants, “We are claiming this land as our own,” but the rule is in the conjunctive. So far, learned counsel for the parties have failed in their excellent briefs to cite a decision or text that defines “Such acts or conduct so unequivocal and notorious in character that notice will be presumed,” and the court has found none. Possession alone is insufficient. Payment of taxes, while strong evidence of a claim of title, it alone is insufficient. So, as said before, the evidence as a whole must be examined and each case stands on its own bottom.

Significant in this case, Maude Roe, in 1956, executed a warranty deed to all of the land to plaintiffs, which deed was duly recorded. Up to this time fairly substantial improvements had been made on the land and after this deed, and more than seven years before the commencement of this action, Billy Roe built his own substantial frame home upon this property. The defendants visited in this home and the other homes and knew of these improvements.* * * *

After the entry of Billy Roe under the deed from his mother and more than seven years from that date, some oil company was about to drill for oil and gas under a lease from plaintiffs. An examiner of the abstract of title made a requirement of protective leases from the defendants. For the first time in thirty years the defendants made claim to an interest in this land.

Our courts have ordinarily held that to constitute estoppel, adverse possession or laches with reference to a cotenant, that no one or two specific acts, and sometime even more, necessarily, of themselves amount to a disseisin, but the following each are items to be considered in determining whether the possession is adverse, or the individual is estopped or guilty of laches and they include such acts as (1) possession of the property; (2) payment of taxes; (3) enjoyment of rents and profits; (4) making of improvements (particularly of a substantial nature) ; (5) payments of insurance made payable to himself; (6) holding possession of lands for a long period of time, such as 30 years; (7) treating property as one’s own; (8) selling timber; (9) executing leases; (10) assessment of property in one’s own name; (11) selling crops; (12) the execution, delivery, and recording of a deed by oiie cotenant which purports to convey the entire property; and (13) generally treating propertv as his own. Jones et al v. Morgan et al, 196 Ark. 1153, 121 S. W. 2d 96 (1938) ; Hildreth et al v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353 (1946) ; Linebarger v. Late, supra ; Ulrich v. Coleman et al, 218 Ark. 236, 235 S. W. 2d 868 (1951) ; Johnson et al v. James, 237 Ark. 900, 377 S. W. 2d 44 (1964).

Laches or estoppel, is not brought into being merely by delay-, but by delay that works a • disadvantage to another. So long as the parties are in the same condition, ■it matters little whether one presses a right promptly or slowly within limits allowed by law. But where, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith become so changed that he cannot be restored to his former state, if' the right be enforced, delay becomes inequitable, and- operates as estoppel against the asserted right. This disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes, the malting of substantial improvements to the land, and other causes, for where the court sees negligence on one side and injury therefrom on the other,' it is a ground for denial of relief.

Put in other terms, estoppel is merely the mánner, in courts of equity, and sometimes even in courts of law, where when one party, or one group of parties sit idly by and do not,.speak when, in good conscience, they should speak, they will not later be heard to speak when they should in good conscience, remain silent. Steele v. Jackson, 194 Ark. 1060, 110 S. W. 2d 1 (1937) ; Linebarger v. Late, supra.

Plaintiffs and their mother and father have had the exclusive and complete use, control, and possession of all of the land for more than thirty consecutive years prior to the commencement of this action. None of the defendants has been in possession of, or attempted, in any wise to exercise any dominion over, or possession of, the property during all of this time. There were no buildings or improvements on this property when it was redeemed in 1934. All improvements were made more than seven years before the commencement of this action and with full knowledge of defendants.

Plaintiffs’ mother paid all taxes in her own name, in addition to the redemption, for the years 1933 to 1955, inclusive, and plaintiffs have paid taxes in their own names for the years 1956 to 1964, inclusive. Plaintiffs executed an oil and gas lease in their own names. Plaintiffs cut and sold- all merchantable timber.

For all of these thirty years the defendants, while visiting and knowing that plaintiffs were making permanent and valuable improvements and doing other acts, sat idly by and made no claim until aroused by possible enrichment from the drilling of a gas well. Individuals do not slumber on their property rights for thirty years, under circumstances like this.

Considering all of these factors in the aggregate, the court is convinced that plaintiffs are entitled to have their title to said property quieted in them by reason of adverse possession, estoppel, and laches.

The testimony recited by the chancellor, supplemented by a study of the entire record, reveals only one important factual issue in controversy. This, concerns the circumstances surrounding entry upon the lands by Maude Roe, that is, -whether she ente'red on the basis of an agreement with the other heirs that the place would be hers if she would redeem it. On this point the chancellor, who had the advantage of seeing and hearing the witnesses, ruled in favor of appellees, and we certainly cannot say his findings were contrary to a preponderance of the evidence. The circumstances of the entry as found by the trial court, the silence of the aunts and uncles for three decades, together with the multitudinous acts of ownership recited in the record and undisputed, justify the factual conclusions of the chancellor.

Affirmed.

FoglemaN and Byrd, JJ., dissent.