Chicago Mill & Lumber Company v. Matthews

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Chicago Mill & Lumber Company v. Matthews, 260 S.W. 963, 163 Ark. 571 (Ark. 1924)
• Decision Date: 14 April 1924
• Docket Number: 305
• Parties: CHICAGO MILL & LUMBER COMPANY v. MATTHEWS

260 S.W. 963

163 Ark. 571

CHICAGO MILL & LUMBER COMPANY v. MATTHEWS

No. 305

Supreme Court of Arkansas

April 14, 1924

Appeal from Mississippi Chancery Court, Osceola District; Archer Wheatley, Chancellor; reversed.

Decree reversed and cause remanded.

Little Buck & Lasley, for appellant.

Appellee's possession after he went on the land in 1912 was not continuous to the extent required by the statute. His possession was broken by the removal, taking his family with him, and going down the river to make and harvest crops during the years 1913 and 1914, leaving nothing about the place to indicate that possession was being claimed. 153 Ark 620. The statute of limitations did not, therefore, begin to run until the fall of 1914, when appellee returned to the premises. Appellee's negotiations to purchase the land and his agreement to purchase the same is clearly established by the evidence, constituted a clear recognition of appellant's title, and an interruption of the adverse possession. 2 C. J. 104; Ann. Cases, 1912C, p. 955; 80 Ark 446. On the question of estoppel, see 10 R. C. L. 698; 16 Cyc. 742; 35 Ark. 377; 91 Ark. 148.

OPINION

SMITH, J.

This suit was begun on April 10, 1920, by the filing of a complaint by the appellant lumber company, hereinafter referred to as the company, which contained the following allegations: That the company was the owner of that part of the northwest quarter northeast quarter section 30, township 13 north, range 9 east, which lies east of the east meander line of Little River, and that on the 18th day of March, 1918, it contracted and agreed to sell same to J. M. Matthews and G. W. Matthews for the consideration of $ 397.25, and, in accordance with said agreement, the defendants were permitted to go upon the land and to take possession thereof, and the company caused a proper deed to be executed by its officers and tendered the same to the defendants, who refused to accept it or pay the consideration agreed upon. There was a prayer for the specific performance of the contract. The company prayed that, if it were mistaken in the relief asked, the defendants be declared trespassers, and that it have judgment for the possession.

An answer was filed by the defendant, G. W. Matthews, in which he denied that the company was the owner of the land, or that he had contracted to purchase it, or that he had entered into the possession of the land with the company's consent, or had remained on the land with its permission. For further answer he alleged that he entered upon the land as owner, and had, for the last nine years, continuously occupied the land as owner, his possession at all times being open, adverse and hostile, and that he had cleared the land and put it in cultivation, and had built a house and barn and other improvements worth $ 3,000 on it, and he prayed that the complaint be dismissed.

The chancellor found that defendant entered into the possession of the land in July or August, 1912; and we concur in that finding. The testimony shows that defendant thought the land on which he entered, and upon which he first built a one-room house, was unsurveyed government land, and his purpose was to preempt it and claim it as a homestead. About two years after entering upon the land his presence there was discovered by a representative of the company, to whom the defendant Matthews stated that if the land was not government land he did not and would not claim it. The undisputed testimony shows that the land was not government land, but was the land of the company.

The defendant at first cleared only a small part of the land, less than an acre in area, but thereafter he continued clearing the land, and extended his fence, as he cleared the land, to include the clearing.

The testimony establishes the fact that in 1913 and 1914, when defendant had cleared only a small area of the land, he moved down the river and made two crops, although he moved back in the fall of each year after completing his crops. He left so few of his effects in the house that passers-by thought the place was abandoned. Defendant testified that, although he took his family with him when he went away to make the crops, he left a table, stove and bedstead there, and some stock running loose in the woods.

After 1914 defendant resided on the land, making each year some addition to his clearing, and these conditions continued until 1917, at which time the company determined to oust defendant, and a notice to vacate was served on him. The negotiations for the purchase of the land then commenced. The defendant asked that the deed be made to his son and co-defendant, and explained that he wished this done as he was attempting to homestead some government land. The company refused to do this because the son was a minor. Defendant then agreed to pay all cash for the land, and upon this condition the company agreed to execute the deed to the son. The company later caused an accurate survey to be made of the land and the acreage measured, and its officers executed a deed to the son. The negotiation was had entirely with the father, who was in fact the purchaser and who was to furnish the purchase money. Defendant G. W. Matthews was notified that the deed was ready for delivery, but he advised that he could not take the deed up at that time, but would do so in the fall (of 1918), when he would have some money.

The manager of the company testified that he did not press the matter of closing the sale, as he regarded it as settled, and assumed that Matthews would take the deed and pay for the land as soon as he was able, and on this assumption he extended indulgence by way of granting time. Thus the matter continued until November, 1919, when defendant disclaimed holding by the company's permission, and asserted his ownership of the land by reason of his possession.

Without setting out the testimony of the numerous witnesses, we announce our conclusion that the great preponderance of the evidence supports the company's contention in regard to the contract to sell the land and defendant's agreement to buy it.

The defendant was a squatter who thought he was on government land, and during the years 1913 and 1914 he did not live on it, but moved several miles away, and made a crop during each of those years, and left the premises in a condition which indicated that he had moved away. His conduct no doubt caused the company to be less active in attempting to eject him or to close the sale of the land,...