Griffin v. Solomon

• Decision Date: 17 December 1962
• Docket Number: No. 5-2844,5-2844
• Citation: 235 Ark. 909,362 S.W.2d 707
• Parties: Cora Cotton GRIFFIN et al., Appellants, v. B. M. SOLOMON et al., Appellees.
• Court: Arkansas Supreme Court

Page 707

362 S.W.2d 707

235 Ark. 909

Cora Cotton GRIFFIN et al., Appellants, v. B. M. SOLOMON et al., Appellees.

No. 5-2844.

Supreme Court of Arkansas.

Dec. 17, 1962.

A. M. Coates, Helena, for appellants.

David Solomon, Jr., Helena, for appellees.

McFADDIN, Justice.

The appellants were cotenants with Arthur Cotton, Jr. He mortgaged the lands to the appellees; and the Chancery Court held that such mortgage gave the appellees a lien on appellants' interests. This appeal challenges that decree.

On October 20, 1938 Arthur Cotton, Sr. made application to the State of Arkansas to receive a donation deed ¹ to a tract of 80 acres in Phillips County, Arkansas, and hereinafter called 'the land.' Cotton, with his wife and five children moved on the land, complied with the requirements of the law, and received a deed from the State on February 19, 1941. In the application to the State in 1938, and in the deed from the State in 1941, the name of the applicant and grantee was 'Arthur Cotton'; and it is clearly shown that the said Arthur Cotton was in 1938 a Negro man, 56 years of age, ² and that he had a son named Arthur Cotton (hereinafter sometimes called 'Arthur Cotton, Jr.') ³ who was twenty years of age in 1938. It is the identity of name of the father and son which misled the appellees and caused the confusion which resulted in this litigation. For clarity, we refer to these as 'Arthur Cotton, Jr.' and 'Arthur Cotton, Sr.'; although in all the conveyances herein mentioned the name of said party, either as grantor or grantee, was merely 'Arthur Cotton.'

The wife of Arthur Cotton, Sr. died in 1946; and Arthur Cotton, Sr. died on June 8, 1948, while occupying the land. He was survived by five children, being: (1) Arthur Cotton, Jr., a son; (2) Quincy Cotton, a son; (3) Elijah Cotton, a son; (4) Cora Cotton Griffin, a daughter; and (5) Elizabeth Cotton Snowden, a daughter. All of these five children are of full age; and the last named four are the appellants. After the death of his father, Arthur Cotton, Jr. returned from Michigan and occupied and farmed the lands. For a short time, his two brothers, Quincy and Elijah, were also on the land, but Quincy soon moved, and in 1950 Elijah also moved; so only Arthur Cotton, Jr. remained on the land, occupying and farming it under a claimed agreement with his cotenants that he would maintain the improvements, and pay the taxes. At some irregular intervals he paid some of his cotenants amounts said to be rent.

While so occupying the lands, Arthur Cotton, Jr. (listing himself merely as 'Arthur Cotton') joined with his wife, Annie Mae, executed the following instruments, each of which was duly recorded:

(1) On October 5, 1955 Arthur Cotton and wife executed a right-of-way deed to Beaver Bayou Drainage District, conveying a right-of-way over the lands.

(2) On June 21, 1955 Arthur Cotton and wife executed a deed of trust to L. K. Grauman to secure an indebtedness of $550.00, which was satisfied in 1956 from the proceeds of the next mentioned transaction.

(3) On January 11, 1956 Arthur Cotton and wife executed a deed of trust to the Helena National Bank to secure an indebtedness of $1000.00, which was satisfied from the proceeds of the next mentioned transaction.

(4) On January 25, 1957 Arthur Cotton and wife executed a deed of trust to L. K. Grauman to secure an indebtedness of $1182.90, which was satisfied in 1959 from the proceeds of the next mentioned transaction.

(5) On April 11, 1959 Arthur Cotton and wife executed a deed of trust to B. M. Solomon to secure an indebtedness of $2000.00 and other advances; and this is the instrument that the appellees are seeking to foreclose.

In each of the instruments numbered 2 to 4 inclusive, Arthur Cotton and wife mortgaged the entire land and warranted the entire title to the grantee. Furthermore, Arthur Cotton obtained redemption deeds from tax sales and improvement delinquencies, either expressly or impliedly representing himself as the owner of the land. On January 14, 1961 B. M. Solomon et al., the present appellees, filed this suit to foreclose the April 11, 1959 deed of trust, as above mentioned; and 'Arthur Cotton and his wife, Annie Mae Cotton,' were listed as the only defendants. Their answer was that they owned only an undivided one-fifth interest in the land and that the other four-fifths interests were owned by his cotenants, being the appellants in this case. The appellants, Elijah Cotton, Quincy Cotton, Cora Cotton Griffin, and Elizabeth Cotton Snowden, intervened and claimed that each owned an undivided one-fifth interest in the land; that Arthur Cotton, their cotenant, only owned one-fifth interest and had no right to encumber any interest in the lands except his one-fifth interest. To this intervention, the appellees responded:

'If the intervenors are the owners of 4/5th of the lands described, it is at least rather peculiar that they now assert their claim in a suit for a past due debt when Arthur Cotton and his wife have executed deeds of trust on such lands on four occasions and executed a perpetual right of way.

'Plaintiffs deny that the intervenors have any interest in such lands, but allege that if they have, then they are estopped from asserting such claim due to laches, negligence in the manner in which the land has been handled in that Arthur Cotton has been permitted by them to use the lands as his own, and the intervenors knew, or should have known, that if they owned the interest in the land they have assisted and participated by their silence and failure to act in permitting Arthur Cotton and his wife to falsely and fraudulently procure loans in his and his wife's name on deeds of trust on such lands as if the lands were his own.'

Trial in the Chancery Court resulted in a decree in favor of the appellees, holding that the interest of each of the four appellants was subject to the lien and indebtedness claimed by the appellees; and this appeal is by appellants to reverse that decree.

A careful study has failed to reveal a sound basis on which to rest an affirmance of the Chancery decree. When Arthur Cotton, Sr. died intestate in 1948 as the owner of the lands, the title descended to his five children, who became cotenants (§ 50-411 Ark.Stats. and Sanders v. Sanders, 145 Ark. 188, 224 S.W. 732). Mere lapse of time does not dissolve a cotenancy. Hollaway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298. Arthur Cotton, Jr. testified positively and unequivocally that he never held the land adversely to his cotenants. But even if his testimony should be disbelieved, nevertheless the appellees failed to show any acts by Arthur Cotton, Jr. which would amount to a disseizin of his cotenants. In Hardin v. Tucker, 176 Ark. 225, 3 S.W.2d 11, we said:

'In Singer v. Naron, 99 Ark. 446, 138 S.W. 958, it was held that, in order for the possession of a tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of...