Hargis v. Lawrence

• Decision Date: 24 June 1918
• Docket Number: 72
• Parties: HARGIS v. LAWRENCE
• Court: Arkansas Supreme Court

204 S.W. 755

135 Ark. 321

HARGIS v. LAWRENCE

No. 72

Supreme Court of Arkansas

June 24, 1918

Appeal from Carroll Chancery Court, Western District; Ben F McMahan, Chancellor; affirmed.

Decree affirmed.

Festus O. Butt, for appellant.

1. Appellees are barred by the decree of confirmation in 1903. Kirby's Dig. § 656-7; 188 S.W. 810.

2. The cause should have been dismissed because of want of capacity in appellees to sue. The proof wholly fails to show any individual interest in the two individuals named as plaintiff. Bradley had been a trustee, but Lawrence was not neither had he any individual interest.

3. The decree is erroneous as to the three acre tract because it was in effect a reformation of a deed of gift, to which neither the grantor nor his heirs were parties and because the preponderance of the evidence does not show any legal adverse possession by appellees. 200 S.W. 797; Kirby's Dig § 763; 30 Ark. 640; 89 Id. 453; 40 Id 237.

4. It was erroneous as to the one acre tract because appellees' title, under its deed had been lost through adverse possession by appellant. 118 S.W. 414; 201 Id. 118; 200 Id. 1014.

5. It was erroneous as to the road sought because the court had no jurisdiction of that question since it was at the time pending in the county court.

C. A. Fuller, for appellees.

1. Appellees were not barred by the decree of confirmation in 1903. Appellees were in the open, notorious, adverse and peaceable possession of the cemetery and church house and ground. Kirby's Dig. § 656. Cemetery, school and church property is not subject to taxation and was not taxed since 1878. Appellant's grantor therefore could not have the title confirmed in 1903 on the theory that he had paid seven years' taxes and appellees were not parties to the suit, but were in adverse possession.

2. Appellees had the capacity to sue as trustees and individuals as the evidence shows.

3. The description in the deed was properly reformed to speak the truth, and appellees are entitled to have the title vested in them because of adverse possession for 35 years.

4. Appellees were and had been in adverse possession, under color of title, for more than the statutory period, 20 years. 30 Ark. 640.

5. There is no evidence that any petition for the road was pending in the county court. The land was donated by Bradley in 1878 and appellees had complied with the terms of the gift. The possession extended to the limits of the boundaries of the grant. 74 Ark. 484; 96 Id. 606. Adverse possession for more than seven years under a void deed for want of proper description is sufficient to invest title. 85 Ark. 4. Possession is equivalent to notice. 76 Ark. 25. The decree is right.

OPINION

HUMPHREYS, J.

W. H Lawrence and Alfred M. Bradley, as trustees for Carmel Baptist Church, and in their individual capacities, brought suit against Abe Hargis in the chancery court for the Eastern District of Carroll County to reform an alleged misdescription of the land in a deed executed by B. K. W. Bradley and A. J. Bradley, to Anderson Cox, Spencer B. Hulsey and Alfred M. Bradley on the 29th day of October, 1887; and an alleged error in designating the grantee in a deed executed by the heirs of B. K. W. Bradley, deceased, to W. H. Lawrence on the 3rd day of January, 1899; and to quiet the title to the lands in them as trustees for said Carmel Baptist church, and to prohibit appellant from interfering with the organization's possession of said tracts of land and the use of the road leading from the county road to the church and cemetery. The alleged erroneous description in the first deed consisted in conveying the lands in the S.W. quarter of the N.W. quarter, instead of the S.W. quarter of the N. E. quarter, and in specifying in the metes and bounds description by full chains instead of half chains. The alleged error in the second deed consisted in conveying the land to W. H. Lawrence individually, instead of as trustee for the Carmel Baptist Church. The complaint alleged ownership of the lands in appellees as trustees for the Carmel Baptist Church, and that appellant was claiming ownership therein and was attempting to interfere with their possession of the three-acre tract intended to be conveyed by the first deed, and the one-acre tract conveyed by the second deed, and that the Carmel Baptist Church, through its trustees, had been in the actual, adverse possession of the one-acre tract for graveyard purposes and the three-acre tract for church purposes since 1887. Appellant filed answer denying ownership of either tract of land in appellees and claiming title himself to both tracts under deed of conveyance from W. H. Wells of date March 12, 1906. The cause was submitted to the court upon the complaint of appellees, answer of appellant and depositions of witnesses, from which the chancellor found that appellees, as trustees, were owners of both tracts of land for the Carmel Baptist Church, and, in accordance therewith quieted the title to said real estate in appellees. An appeal has been lodged in this court and the cause is before us for trial de novo.

The facts, in substance, are as follows: In the year 1872 certain citizens residing about five miles northeast of Green Forest in Carroll County organized the Carmel Baptist Church. In 1887 B. K. W. Bradley agreed to convey to the trustees of said organization three acres of land in the southwest quarter of the northeast quarter in section, township and range aforesaid, with the understanding that the commissioners would erect thereon a building for church and school purposes. In keeping with that understanding, a conveyance was attempted but the tract was misdescribed and placed in another 40 acre tract and described by metes and bounds as a 12 acre tract instead of a three acre tract, due to the use of full chains instead of half chains in the description. Such a building was immediately placed upon the three acres agreed upon by the organization and was used continuously for church and school purposes for the organization until some five or six years ago, and since that time, for said purposes at intervals. The reason it has not been used continuously for the last five or six years was on account of a disagreement in the organization. The organization is intact, having never disorganized. Alfred M. Bradley, now 82 years of age, helped build the church and is still a trustee for the organization. W. H. Lawrence is commissioner by succession to Anderson Cox who was one of the original trustees. At about the same time, B. K. W. Bradley agreed to convey a part of the S.W. quarter of the N. E. quarter of section 26, township 20 north, range 23 west, containing, within definite metes and bounds, one acre of land for cemetery purposes. The acre tract was marked off and large stones set up at each corner. The organization began to use the tract for burial purposes. It has been used for a community burial ground since that time. B. K. W. Bradley died before he executed the deed to the acre tract, but all of his heirs joined in a deed on the 3rd day of January, 1899, particularly describing said tract, to W. H. Lawrence, who testified that while the deed was made to him individually, the intention was that he should receive it as trustee for the Carmel Baptist Church. Lawrence agreed with B. K. W. Bradley to pay the expense of making the deed and recording same, which he did. The deed was misplaced and not recorded until after appellant purchased the entire tract of land. During the period from the execution of the deed until the institution of this suit, thirteen people had been buried in the graveyard covering a portion of the tract to the extent of 14 by 40 feet. That portion of the acre had been fenced and had been cleaned off from year to year. About two years before the institution of this suit, a two-wire fence was built around the entire three-acre tract. A road branching off of the main road leading to the church and graveyard had been used by the community generally from the time the church was built and the graveyard established until a...