Bellamy v. Shryock
| Decision Date | 10 February 1947 |
| Docket Number | 4-8064 |
| Citation | 199 S.W.2d 580,211 Ark. 116 |
| Parties | Bellamy v. Shryock |
| Court | Arkansas Supreme Court |
Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor.
Affirmed.
D S. Plummer, for appellant.
Hal B. Mixon, for appellee.
Appellants and appellees are owners of adjoining residential lots in the City of Marianna and this suit involves the title to a narrow triangular strip of land lying along the boundary line dividing the two lots.
Appellants are the heirs at law of Myra D. Brown who owned both lots in 1909. At that time Mrs. Brown resided on the south part of her lot and maintained a garden enclosed by a wire fence on the north part. On November 6, 1909, she conveyed the north part of the lot, referred to as the "garden spot," to George W. Greenhaw, who constructed two houses on the property. The house constructed next to the division line between the two lots was rented by Greenhaw to George Pilkington whose wife, Myrtie Mae Pilkington, was the daughter of Myra D. Brown. George Pilkington rented the property until 1920 when he purchased from George W Greenhaw.
In 1934, George Pilkington and wife executed a mortgage of their lot to Home Owners Loan Corporation. This mortgage was foreclosed and title acquired by the corporation in 1939, when the lot was conveyed to D. S. Plummer, another son-in-law of Myra D. Brown. Plummer and wife reconveyed to the corporation in 1941. On January 21, 1943, Home Owners Loan Corporation conveyed the property by warranty deed to appellees, J. G. Shryock and Gladys Shryock.
The Home Owners Loan Corporation had a survey made of the lot now owned by appellees in 1942 according to the description contained in appellees' deed, and, which is embraced in the description employed in the warranty deed from Myra D. Brown to George W. Greenhaw. Appellee, J. G. Shryock, took possession of the lot in February, 1943, and stretched a line along the south boundary from the stakes set when the 1942 survey was made. In March, 1943, he started removing vegetation and debris from that part of an embankment along his south bundary line which was located within the calls of his deed. This work was stopped at the request of the husband of one of the appellants who resided in the Myra D. Brown home. Appellees then brought this suit to quiet their title to the triangular strip in controversy and to restrain appellants from interfering with their possession.
Appellants filed an answer and cross-complaint in which they claimed title to the disputed tract by an agreed boundary allegedly marked by a fence along the base of the embankment or terrace which had been accepted as the true boundary by adjoining owners for a period of more than 25 years. Title was also claimed by adverse possession of Myra D. Brown and appellants for more than 30 years. In their cross-complaint appellants sought recovery of damages against appellees for destruction of trees, shrubs, plants and soil erosion preventives on the disputed strip. Home Owners Loan Corporation intervened in the suit in conformity with the covenant of warranty contained in its deed to appellees. The corporation adopted the complaint of appellees and pleaded estoppel of appellants to deny appellees' title by virtue of the covenant of warranty in the deed of Myra D. Brown to George W. Greenhaw.
The trial court found the issues in favor of appellees and the intervenor, Home Owners Loan Corporation. A decree was entered quieting appellees' title to the strip of land in controversy and dismissing the cross-complaint of appellants.
The chain of title to the strip of land in controversy is complete in appellees. Appellants contend, however, that their ancestor, Myra D. Brown, did not intend to convey any portion of the land lying south of the base of the embankment, and that the testimony shows that the boundary between the two lots has been clearly established by mutual consent and acquiescence of the adjoining owners in a dividing line marked by a fence along the base of the embankment for a period of 35 years. Appellants also insist that they have acquired title by the adverse possession of Myra D. Brown for 25 years which was continued by appellants following Mrs. Brown's death.
In support of these contentions George H. Pilkington, the son-in-law of Myra D. Brown, testified that he rented the property now owned by appellees from George Greenhaw from 1910 until 1920 when he purchased the lot and that he resided on the property about 25 years; that prior to the conveyance by Myra D. Brown to George Greenhaw in 1909, a fence marked the dividing line between the lot upon which Mrs. Brown's residence was located and "the garden spot" on the north, and that this fence was located along the bottom of the terrace or embankment which divided the two lots. He further testified that the fence was maintained by his wife's mother and, while the line was never discussed, the fence was recognized as the dividing line between their properties while he lived there. He made no claim to any part of the land lying south of this fence and had no intention of buying this strip at the time he purchased the property from Greenhaw. The fence was still there when he left.
D. S. Plummer, the husband of one of appellants, who continued to reside in the home of Myra D. Brown after her death, testified to the same effect. This witness had known the property for 40 years and stated that Mrs. Brown and her heirs had the "exclusive, uninterrupted, undisputed possession of all that portion of the lot south of the base of the terrace for the past 36 years or more." He also testified that he had no intention of purchasing any land from the Home Owners Loan Corporation in 1939 that extended south of the base of the terrace between the lots, or to reconvey such land to the corporation in 1941.
George W. Greenhaw testified on behalf of appellees that the "garden spot" was fenced when he purchased the property from Myra D. Brown in 1909. It was necessary to do some excavation to construct the house for Mrs. George Pilkington and he moved dirt from the embankment of the lot on the south side in order to fill in a part of the lot. The embankment was within the boundaries of his fence and he...
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