| Ark. | Nov 21, 1910
(after stating the facts). Under the undisputed facts of this case, the plaintiff was entitled to a reformation of the deed as against Neely Burton to correct the mistake made in the description contained in the deed from Morgan to Burton. But, in order to-affect the rights of Mrs. MdCuin, other questions arise.
Was she .a bona fide purchaser for value without notice of the equities of the plaintiff, Morgan? It is insisted by the plaintiff that he informed Mr. McCuin, the husband and agent of Mrs. McCuin, before she made the purchase from Burton, that he claimed the strip of land in dispute, -and that he pointed out to McCuin the fence adjacent to and north of the land then owned by Burton as his boundary line. McCuin denies this, and both he and his wife say they had no knowledge that any mistake had been made, or was claimed to have been made, in the description of the land in the deed of Morgan to Burton; and stated that they did not know that Morgan claimed' the land in dispute until after they had received the deed to the same and had paid the purchase money, which was $600. 'Joseph Miller testified that Morgan had shown his land to Mr. McCuin with a view of selling same to him; that this was prior to the time Mrs. McCuin purchased the land from Burton, but he says that Morgan only pointed out his land in a general way.
The chancellor made a general finding for the ■ defendant, Mrs. McCuin, and this amounts to a finding by him that under the evidence as disclosed by the record Mrs. McCuin did not have actual notice of the equities of the plaintiff at the time she purchased the land from Burton and paid for the same; and also that she was a bona fide purchaser for value. The rule is firmly established in -this State by an unbroken line of decisions that the finding of fact by a chancellor will not be disturbed on appeal unless it is clearly against the weight of evidence. When tested by this rule, it appears to us from a careful consideration of the evidence that the finding of the chancellor in the respect just discussed must be sustained.
It is next insisted by counsel for plaintiff that plaintiff was in the actual and visible possession of the land in dispute at the time of the purchase of the defendant McCuin from Neely Burton, and that such possession was equivalent to actual notice of plaintiff’s rights or equities. The case of Thalheimer v. Lockhart, 76 Ark. 25" date_filed="1905-06-10" court="Ark." case_name="Thalheimer v. Lockert">76 Ark. 25, and others of like'character are cited by him to maintain his position. While the principle in those cases is well settled, and has often been recognized by this court, it has no application to a state of facts like that presented in this record. In the Thalheimer-Lockhart -case one Smith had sold 40 acres of land to Lockhart, and a smaller number of acres was described in the deed to him. Lockhart, however, took possession of all the lands that was sold him, and remained in possession of the same. Subsequently Smith sold to Thalheimer a larger tract of land, and -the description in the deed to him contained a part of the land previously sold to Lockhart. The court held that Thalheimer could not recover against Lock-hart because Lockhart was in the actual, -open and visible possession of the land when Thalheimer purchased it, and that this was notice to Thalheimer of Lockhart’s rights. Thalheimer and Lockhart were strangers in title, and for that reason, in the absence of evidence to the contrary, the presumption was that the holding was adverse.
On the other hand, as stated in the case of Stuttgart v. John, 85 Ark. 526, where a vendor, after having executed a deed, remains in possession of the premises conveyed, he is presumed to hold in subordination to. the title conveyed unless there is affirmative evidence of a contrary intention. It will be noted that the plaintiff in this case was the vendor of Burton, and there is no presumption that he intended to deny the title he had conveyed to Burton.
The distinction between the two- classes of cases is clearly pointed out in the case of Graham v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 562" date_filed="1901-02-02" court="Ark." case_name="Graham v. St. Louis, Iron Mountain & Southern Railway Co.">69 Ark. 562, where the court said:
“The distinction between a vendor and a stranger in such a case relates to the character of evidence necessary to show that the possession was adverse. If the parties are strangers in title, possession and the exercise of acts of ownership are, in themselves, in the absence of explanatory evidence, proof that the holding is adverse; whereas, if the vendor, after having executed deed, continues to remain in possession, the natural and reasonable inference, in the absence of evidence to the contrary, would be that he holds in recognition of the rights of the person to whom he has conveyed; it not being supposed, from mere acts of possession and ownership not inconsistent with the rights of the vendee, that the vendor intends to deny the title he has conveyed.” To the same effect, see El Dorado v. Ritchie Grocery Co., 84 Ark. 52" date_filed="1907-07-15" court="Ark." case_name="Dorado v. Ritchie Grocery Co.">84 Ark. 52. We do not mean by what we have said to overrule the case of Turman v. Bell, 54 Ark. 273" date_filed="1891-02-28" court="Ark." case_name="Turman v. Bell">54 Ark. 273; but we adhere to the rule there announced, which is that if possession by the grantor is continued but a short time after the making of a deed, it may reasonably be referred to the sufferance of the grantee; but where it is long continued, it implies a right in the occupant, and the implication is sufficient to cast upon strangers the duty to inquire. In that decision the court was speaking with reference to a case where the grantor retained possession of the whole tract conveyed for a considerable time after the grant, and held that such possession was notice of reserved rights not expressed in the deed. Here there were no reserved rights, and the grantor only retained possession of an inconsiderable part of the land granted, which happened to be within his inclosure. In such case we do not think this retention of possession was inconsistent with his grant, and put upon appellee the burden of inquiring what his rights or equities were.
The decree will therefore be affirmed.