194 S.W.2d 892 | Ark. | 1946
Appellant, J. C. Lowe, purchased from R. H. Hanson and Stella Hanson, his daughter-in-law, a 200-acre tract of land in section 6, township 14 south, range 27 west, in Miller county. The contract of purchase was made in 1929 and a deed delivered in 1932. Appellant went into immediate possession of the lands after his purchase in 1929, and a fence was built 97.7 feet beyond the south boundary of the 200-acre tract described in his deed from the Hansons. This strip embraced 7.3 acres and is a part of the fractional north half of the north half of section 7, township 14 south, range 27 west, which was purchased by appellee, A. P. Cox, from Stella Hanson James in December, 1939.
The section line between sections 6 and 7 in township 14 south, range 27 west, forms the southern boundary of the tract purchased by appellant and the northern *171 boundary of the tract purchased by appellee Cox. Sections 1 and 12 in township 14 south, range 28 west, lie immediately west of sections 6 and 7 in range 27 west, but the four sections do not have a common corner and the point where sections 6 and 7 corner is 97.7 feet north of the point where sections 1 and 12 corner on the range line. This offset between the section lines was apparently responsible for Hanson's erroneous indication to appellant of a fence line by extending the section line between sections 1 and 12, in range 28, east into section 7 of range 27.
In the fall or early winter of 1942, Cox constructed a new fence on the section line between sections 6 and 7 according to the descriptions set out in the respective deeds of the parties. In November, 1943, appellant filed suit in chancery court alleging ownership of the 7.3-acre strip of land in controversy by adverse possession. It was further alleged that appellee had removed appellant's south boundary fence and had harvested a corn crop on the strip in 1943 and deprived appellant of the use of said land to his damage in the sum of $40. The complaint prayed that the deed from Stella Hanson James to Cox be canceled, in so far as it covers the strip in controversy, as a cloud upon appellant's title; that appellees be required to reconstruct the fence at its former location and enjoined from interfering with appellant's enjoyment of the land and maintenance of the fence; that upon failure to replace the fence appellant have judgment for the cost of replacing same and for damages for loss of use of the strip.
Appellees filed a demurrer to the complaint on the ground that its allegations were insufficient to state a cause of action. The court treated the demurrer as a motion to transfer to law, which was sustained, and the cause transferred to circuit court over the objections of appellant. Appellees answered in the circuit court and trial to a jury resulted in a verdict and judgment in their favor. This appeal is prosecuted to reverse the circuit court judgment. *172
It is first argued that the chancery court erred in transferring the cause to the circuit court. In support of this contention, appellant insists that this court, in the case of Pearman v. Pearman,
It was also said in the opinion: "The action has been greatly extended by statute and in Many states is the ordinary mode of trying disputed titles. Pomeroy's Equity Jurisprudence (3 Ed.), vol. 4, 1396. Such is not the case in this state, however."
It is contended that the statement contained in the last paragraph above is inaccurate and overlooked the statute of 1891 which appellant insists was in force when the Pearman case was decided, and has been in effect since, not having been repealed. But this court held in Lawyer v. Carpenter,
It is also argued that, even though Act 74 of 1891 is not now in effect, the chancery court had jurisdiction in the instant case under the rule announced in Sanders *173
v. Flenniken,
Appellant also relies on the case of Patterson v. McKay,
Appellant, in the case at bar, says that no prayer for possession appears in his complaint. The prayer of the complaint in this connection is "that the defendants be required to reconstruct this fence at its former location; and that said defendants be enjoined from in any way interfering with the plaintiff in the enjoyment of said land belonging to him, and further restrained from interfering with the maintenance of said fence." It is doubtful that a more effective manner of obtaining possession of the strip of land in controversy could be accomplished than the method thus prayed by appellant.
The case of Simmons v. Turner,
Appellant was out of possession and appellee was in actual pedal possession of the strip of land in controversy, and these facts were revealed by the complaint. The complaint also alleged title in appellant by adverse possession which is a purely legal title. 1 Am.Jur., p. 798. A careful analysis of the complaint convinces us that the primary purpose of this suit was to obtain possession of the tract of land. Since appellant was asserting legal title in himself, but was out of possession, his remedy at law was adequate. Appellees, being in actual possession and claiming title, had the constitutional right to insist that the issues be tried before a jury in a court of law. The chancellor, therefore, properly treated the *175 demurrer of appellees as a motion to transfer the cause to the circuit court.
Appellant earnestly insists that the trial court erred in refusing to grant an instructed verdict in his favor at the conclusion of the testimony. It is contended that the undisputed facts established appellant's title to the strip of land by adverse possession and that there is no substantial evidence to support the verdict of the jury. This presents the most difficult question in the case and leads us to a brief review of the evidence under the familiar rule that, in testing its sufficiency to support the verdict, such testimony must be viewed in the light most favorable to appellee.
The testimony of appellant was to the effect that no survey was made, but his grantor, Hanson, pointed out the line upon which both parties constructed the southern boundary fence. Three tenant houses were built on the disputed tract and part of the land was cultivated and occupied by tenants of appellant for more than seven years under claim of ownership. Appellant also testified that the first time he knew his deed did not include the lands, or that Cox was claiming title thereto, was when Cox built the new fence in 1942. No one else was present when Hanson pointed out the line to appellant and Hanson died before the instant suit was filed.
Appellee, A. P. Cox, testified that appellant came to him about two weeks after he purchased the property and wanted to buy the 200-acre farm. He told appellee that the line had never been straightened out between the two places and Hall (the surveyor) some way took a strip of his land. They discussed the offset and appellee told appellant of his agreement to adjust a similar offset on his south line with the adjacent owner by sharing the costs of placing a fence on the section line. Appellee made the same offer to appellant to adjust the line to the north and appellant said, "Yes, sir," but did not say whether he would or wouldn't. After appellee built the fence on the section line, appellant tried to buy the disputed strip and offered appellee $40 an acre, but he refused to sell. Cox bought a lease on appellant's farm *176 from the latter's tenant in January, 1943, and paid rent to appellant, but did not pay rent on the 7.3 acres in controversy. Appellant accepted the rent without objection.
Prince Beed farmed appellant's lands for at least three years and sold his lease to Cox in 1943. He testified that he was preparing to rebuild the fence when appellant told him that Cox had bought the strip and he was going over to see if he could buy it from Cox. When appellant returned he told Beed not to rebuild the old fence, that Cox was going to put the fence on the line. Beed saw Hall when the latter surveyed the lands and showed appellant the stakes Hall had placed on the section line. One or two of the tenant houses had practically fallen in when Beed left the farm and there were no tenants in the houses while he was there.
The fence constructed by appellant and Hanson consisted of three strands of barbed wire on cottonwood posts. Witnesses for both parties testified that the posts decayed within three years and that the fence was never properly maintained.
It is contended that none of the statements and acts attributed to appellant by Cox and Beed tends to show the character of appellant's possession as being permissive instead of adverse, and that a title which had already vested in appellant could not be divested by his subsequent acts and admissions. In the recent cases of Deweese v. Logue,
In discussing the recognition of title in another by all offer to purchase made after the running of the statutes, this court in Shirey v. Whitlow, supra, said: "Such recognition might be evidence tending to show that the possession of the claimant was not adverse, and that no title had in fact vested. But the weight to be given to such recognition would be a question for the jury, and the court could not declare, as a matter of law, that the mere fact that defendant had recognized the title of the defendant entitled plaintiff to a judgment for possession."
This court also said in Butler v. Hines,
Under the above authorities we think the evidence of appellant's acts and admissions, when considered in connection with the temporary character of the fence and the other circumstances in evidence, was substantial and warranted the submission of the issue of adverse possession to the jury.
The judgment of the circuit court is accordingly affirmed. *178