Glasscock v. Mallory

• Decision Date: 02 June 1919
• Docket Number: 9
• Citation: 213 S.W. 8,139 Ark. 83
• Parties: GLASSCOCK v. MALLORY
• Court: Arkansas Supreme Court

213 S.W. 8

GLASSCOCK v. MALLORY

139 Ark. 83

No. 9

Supreme Court of Arkansas

June 2, 1919

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor affirmed.

Decree affirmed.

J. W Morrow, for appellant.

1. Before appellee can recover he must establish the fact that he owns land east of the railroad and he has failed to do so. He cannot rely on the weakness of appellant's title. His only claim is under Buford, and Buford had no title to any land east of the railroad. McCaleb, the common source of title, sold to Sellers, our grantor, the SW 1/4 and the W 1/2 of SE 1/4 of section 28--less 194 acres west of the railroad. It is probable that he thought of the 240 acres, that 46 acres lay east of the railroad, but he sold all the SW 1/4 and W 1/2 of the SE 1/4 except that part west of the railroad. But the deed to Sellers covered all land east of the railroad and Buford's covered all west of the railroad and took possession, and both held to their respective lands, recognizing the railroad as the boundary for five years or more. There was no mistake as to where the railroad ran. There is no allegation or testimony as to a mistake mutually. The boundary is certain and the acreage called for does not matter, as the boundary is certain quantity must yield to monuments. 100 Ark. 105; 3 Id. 18. If the deeds were uncertain, the acts of the parties have made them certain.

2. Devlin on Deeds 7576-9. See also Ib. 1999-2000; 15 Mo.App 590. Even if the description was void, the taking possession and the payment of the purchase price effectuated the sale. 51 Ark. 390.

The testimony shows that neither Buford nor any one claiming under him bought any of the land east of the railroad. After the sale and survey Sellers continued to occupy all the land east of the railroad and both he and Buford recognized the railroad as the boundary line. The deed and Buford's conduct settle this controversy. He cannot accept the benefits under the deed and refuse the grantor the benefits which followed to him. Even if no deed had passed appellees are estopped, as where the line is in doubt the owners may fix a boundary line which if followed by possession is binding. 96 Ark. 168; 99 Id. 128; 105 Id. 598; 101 Id. 409; 104 Id. 99; 110 Id. 197; 23 Id. 704; 15 Id. 297; 23 Id. 704. The decree should be reversed as to all land east of the railroad in the SW 1/4 and W 1/2 SE 1/4, section 28.

Daggett & Daggett, for appellee, C. T. Doan.

1. Both Doan and Mallory were innocent purchasers for value without notice. Neither knew that any of the lands claimed by Glasscock lay east of the railroad. The deeds from McCaleb were recorded on different dates and appellees' were recorded first and title vested first. 70 Ark. 256; 129 Id. 308; 196 S.W. 177; 46 Mo. 239; 58 F. 455.

2. Appellant has not had possession for the statutory period under color of title.

3. The cases cited by appellant do not apply because (a) there never has been any dispute as to the dividing line; (b) there never has been any agreement that the railroad was the boundary line, and (c) a tract of 87 acres is not a boundary strip, and (d) no controversy ever existed about this line until just before this suit, when Douglass made his survey.

4. Both Doan and Mallory are innocent purchasers for value without notice of appellant's claims. 2 Devlin on Deeds, § 747; 129 Ark 308; 196 S.W. 117; Kirby's Digest, § 763.

5. The language in a deed is construed most strongly against the grantor, and under McCaleb's deed to Buford all the SW 1/4 and all of the W 1/2 of SE 1/4 was conveyed. 111 Ark. 220.

6. Where in a description there is an exception and it is indefinite or impossible to be located the exception is void and the grantee takes the whole tract. 56 Ark. 41; 95 Id. 253; 85 Id. 1; 19 Ann. Cases 1207; 30 Ark. 640; 11 Am. St. 39; 97 Ala. 437; 11 So. Rep. 832; 135 Am. St. 342; 30 Ark. 657; 35 Id. 478; 48 Id. 419; 119 Id. 301; 106 Id. 83.

7. The statements of a grantor in a deed made after it is executed are inadmissible to impeach the deed, and the testimony of Johnston, Hope and Buford was properly excluded. 79 Ark. 426; 1 English 110; 9 Ark. 91; 43 Id. 320; 24 Id. 111; 90 Id. 149; 48 Id. 169; 101 Id. 409; 100 Id. 555; 103 Id. 193.

8. As the warrantor to the title to Mallory, Doan was a proper and necessary party to the suit.

9. The deed first recorded takes precedence. 70 Ark. 256, approved in 129 Id. 308; 196 S.W. 117. See also 46 Mo. 239; 58 F. 455.

10. As to adverse possession. This cuts no figure, as McCaleb was in possession of lands lying on both sides of the railroad and all of the property in litigation on January 2, 1912, and no bar had lapsed when suit was begun. The W 1/2 of the SE 1/4 is clearly shown to be wild and unimproved and not in the occupation of any one. The cases cited by appellant are not in point.

11. The chancellor was correct in sustaining the motion to quash the portions of the testimony of Sellers, Hope and Johnston and also Buford. 40 Ark. 237; 90 Id. 149; 48 Id. 169; 101 Id. 409; 100 Id. 555. There was no competent testimony that the railroad was ever the boundary line.

Doan warranted the title to Mallory and was a proper party.

12. As to constructive notice the cases cited by appellant do not apply here. The shortage in acreage was not settled between Buford and Sellers.

13. On the cross appeal it is submitted that the deeds from McCaleb to the Bufords and Buford and Doan vested in C. T. Doan the whole SW 1/4 and W 1/2 of SE 1/4 of section 28, and the deed from McCaleb to Sellers and subsequent conveyances conveyed no title whatever, and under the deed from C. T. Doan to Mallory the title to all the lands except 46 acres on the east side of W 1/2 SE 1/4 vested in Albert H. Mallory and the title to the 46 acres is now and always has been in appellee and cross appellant, C. T. Doan, and as to said 46 acres the decree should be reversed with directions to quiet the title in Doan.

OPINION

McCULLOCH, C. J.

The parties to this litigation make conflicting claims to certain lands in Lee County, formerly owned by Clarence McCaleb, who is the common source of the assertion of title. McCaleb owned a large body of land in that county containing about 1,300 acres, including 240 acres described as the SW 1/4 and the W 1/2 of the SE 1/4 of section 28, township 3 north, range 3 east, and on January 2, 1912, he sold and conveyed something over 1,000 acres of it to R. W. Buford and his wife, Emma V. Buford, who subsequently conveyed to one Doan, who in turn conveyed to appellee Mallory. The description in the deed from McCaleb to the Bufords was, in part, as follows: "The southwest and the west half of the southeast quarter of section twenty-eight (28), 240 acres, less 46 acres east of the railroad." On the same day McCaleb executed a deed to F. T. Sellers conveying lands aggregating 312.31 acres, among which was a part of section 28, described as follows: "The southwest quarter (1/4) and the west half of the southeast quarter (1/4) of section twenty-eight (28), less 194 acres lying west of the railroad, all in township three (3) north of range three (3) east. "

Sellers was acting as agent for the Bufords in the purchase from McCaleb of the lands embraced in the deed to the Bufords. The deed to the Bufords was filed for record on March 27, 1912, and the deed to Sellers was not filed for record until April 26, 1912. The line of railroad of the St. Louis, Iron Mountain & Southern Railway Company ran north and south through the southwest quarter of section 28, parallel with the east boundary line of the quarter section, leaving 46 acres on the east side of the railroad in that quarter section. The railroad does not touch the west half of the southeast quarter of section 28, and all of the other land described in the deed to the Bufords lie west of section 28.

Appellant Glasscock asserts title under Sellers to the lands conveyed in the deed from McCaleb to Sellers, and he has been in occupancy of the lands in section 28 east of the railroad. This action was...