89 Ark. 578 | Ark. | 1909
This case involves the title to -a tract of land in Calhoun County, containing forty acres. The plaintiff, Jeptha Oliver, originally owned the land, and in the year 1873 conveyed it to his daughter, who was then the wife of J. S. Newton. Newton purchased the -land from the plaintiff, and paid for it, but at his request .it w-as conveyed to his wife. Mrs. Newton reconveyed the land to her father in 1892, and about one year thereafter she and her husband separated from each other, and were divorced. Newton died in the year 1900, and his administrator sold the land as his property in 1902, under orders of the probate court. The defendant, C. b. Poole, claims title under the sale. About ten acres of the land was fenced and in cultivation, and the remainder has always been uninclosed and unimproved. Newton occupied the inclosed part of the land up to the time of his death, claiming title thereto; and the defendant asserts that Mrs. Newton held the legal title as trustee for her husband, and also that the title was vested in Newton by adverse possession for the statutory period. The chancellor sustained the defendant’s claim of title to the inclosed land by limitation, but decreed the uninclosed part to the plaintiff. The defendant appealed.
Where a husband purchases land and procures the deed to be made to his wife, the presumption is that he intended it as a gift, and a trust does not result in his favor. This presumption may be rebutted by evidence of facts showing the husband’s intention to have been that his wife should take the land as trustee and not for her own benefit; but such facts must have existed or taken place antecedently or contemporaneously with the conveyance, or so soon thereafter as to form a part of the transaction. Milner v. Freeman, 40 Ark. 62; Robinson v. Robinson, 45 Ark. 484; Chambers v. Michael, 71 Ark. 373; Womack v. Womack, 73 Ark. 281; O’Hair v. O’Hair, 76 Ark. 389.
Tested by this rule, there is no satisfactory -evidence of an intention to -create a trust in favor of the husband. In fact, there is no evidence at all except that he occupied the land and cultivated it, and afterwards claimed it as his own; but his use and occupation is referable to his natural desire to manage and care for his wife’s- property. Chambers v. Michael, supra.
Actual -occupancy of a part of a tract of land without color of title does not constitute constructive possession -of the part not actually occupied, so as to vest title by limitation to the latter. Without color of title the possession is limited to the part actually occupied.
J. S. Newton had no color of title, as the legal title was conveyed to his wife, and he could not, against the wife and those -claiming title under her, claim the benefits of the deed to her as color of title.
The plaintiff did not appeal, and we do not decide whether or not the decree against hini for the land actually occupied by Newton for the statutory period was correct.
Affirmed.
