Fee v. Leatherwood

• Decision Date: 28 November 1960
• Docket Number: No. 5-2198,5-2198
• Citation: 232 Ark. 817,340 S.W.2d 397
• Parties: Mrs. Edward S. FEE et al., Appellants, v. W. C. LEATHERWOOD et al., Appellees.
• Court: Arkansas Supreme Court

Page 397

340 S.W.2d 397

232 Ark. 817

Mrs. Edward S. FEE et al., Appellants, v. W. C. LEATHERWOOD et al., Appellees.

No. 5-2198.

Supreme Court of Arkansas.

Nov. 28, 1960.

McMillen, Teague & Coates, by Eugene F. Mooney, Jr., Little Rock, for appellant.

Robert B. Gibson, Dermott, for appellee.

WARD, Justice.

In February, 1958, W. C. Leatherwood and B. C. Castleberry (appellees) filed a suit against appellants to quiet title to 342 acres of timber land located in Section 16, Township 13 South, Range 3 West, in Desha County. It was alleged that Leatherwood had acquired title to said lands by adverse possession for more than 7 years. Appellants lay claim to the land by inheritance from one Mamie Kone Fee, who was the fee owner of said land at the time of her death in 1931. Two of the appellants are the grandchildren of said Mamie Kone Fee and the other appellant is their mother, who was also the wife of the son of the said Mrs. Fee.

For clarity and convenient reference we divide the subject lands into three separate groups as set out below:

Group I. The South One-half of the Northeast Quarter, 80 acres; all of the Southeast Quarter of the Northwest Quarter east of the railway track and highway No. 65, approximately 30 acres.

Group II. The Southwest Quarter of the Northwest Quarter, 40 acres; all of the Northeast Quarter of the Northwest Quarter lying west of the said railway and road, 22 acres; all of the Southeast Quarter of the Northwest Quarter lying west of said railway and road, approximately 10 acres.

Group III. The North half of the Southeast Quarter, 80 acres; Southwest Quarter of the Southeast Quarter, 40 acres; Northeast Quarter of the Southwest Quarter, 40 acres.

At the conclusion of the trial the court confirmed the title in appellees to all of the land in Group III. Appellants have not appealed from this portion of the decree, and so these lands are no longer in litigation.

The title to the lands in Group II was quieted, subject to certain restrictions to be noted later, in Jane Day Fee (one of the appellants) to an undivided one-half interest, and in appellees to an undivided one-half interest. Appellants appealed from that portion of the decree giving only a one-half interest to Jane Day Fee, but appellees have not appealed from that portion of the decree giving a one-half interest to Jane Day Fee. We will later discuss appellants appeal in this connection.

The trial court quieted title in appellees to all of the lands in Group I. The principal arguments of appellants are directed to a reversal of this portion of the chancellor's decree. To better understand the issues involved in this connection, it is necessary to set forth a summary of the factual background and portions of the testimony.

As heretofore stated the title to this 342 acres of timber land was held in fee by one Mamie Kone Fee, who died in 1931. Beginning about the time of her death and for several years thereafter all of the lands forfeited for taxes and were never redeemed. The forfeiture of the lands in Group III was by a valid description, but the remainder of the lands were described by an invalid description, being described only as a part of the North One-half of the Section. Mrs. Mamie Kone Fee, who died intestate, left surviving her one son, Edward S. Fee, Sr., who died intestate in 1942. Edward S. Fee, Sr., left surviving him his widow and a son and daughter, named Edward Fee, Jr., and Jane Day Fee, respectively. It is important to note that Jane Day Fee was born in 1937.

In 1931 Alex White moved onto the land and built a small house on the lands in Group I. It appears from the evidence that this house was perhaps surrounded by three or four acres of cleared land. In addition to this, White cleared and cultivated approximately thirty acres of land, but no definite description of this thirty acres is contained in the record. In addition to the above, it appears that White also cleared and pastured an additional parcel of land consisting of approximately eleven acres, to which no definite description is in the record. Alex White was joined in this occupancy by a woman named Ella Williams. They occupied the lands together until 1945 or 1946 when White died. In the meantime a third party had bought the tax title to the forfeited lands and this party, by means of certain negotiations with Ella Williams, succeeded to her rights in the occupancy of the lands. Appellee, Leatherwood, derives his title through this third party. (It is noted here that Castleberry became a party to the suit and is now one of the appellees by virtue of the fact that he has a contract to buy the lands from Leatherwood.)

It is because of this adverse occupancy by Alex White and his privies for a period of 7 years (beginning in 1931) that Leatherwood now claims title to the lands in question. In addition to the occupancy of the lands by Alex White and Ella Williams, appellees and their privies entered upon the lands more than seven years before filing suit and have continuously occupied and improved all of it up until this time. This fact is not seriously controverted by appellants.

The above factual situation poses the following problems: (a) If the nature of the occupancy by Alex White and Ella Williams for the period from 1931 to 1938 or 39 was sufficient to vest title in them to all the lands in Group I then the Chancellor was correct in so holding. This would be true because Jane Day Fee would have no right which she could assert, since her father would have lost the land. (b) If, however, the adverse occupancy by White and Williams was not sufficient to extend to all of the lands but only to the lands to which they actually occupied (the home, the thirty acres and...