Hastings v. Rose Courts, Inc., 5-3074

• Citation: 237 Ark. 426,373 S.W.2d 583
• Decision Date: 23 December 1963
• Docket Number: No. 5-3074,5-3074
• Parties: Harry L. HASTINGS et al., Appellants, v. ROSE COURTS, INC., Appellee.
• Court: Supreme Court of Arkansas

Page 583

373 S.W.2d 583

237 Ark. 426

Harry L. HASTINGS et al., Appellants, v. ROSE COURTS, INC., Appellee.

No. 5-3074.

Supreme Court of Arkansas.

Dec. 23, 1963.

Rehearing Denied Jan. 20, 1964.

House, Holmes, Butler & Jewell, by Philip E. Dixon, Little Rock, for appellants.

Moses, McClellan, Arnold, Owen & McDermott, by Wayne Owen, and Spitzberg, Bonner, Mitchell & Hays, by H. Maurice Mitchell, Little Rock, for appellee.

McFADDIN, Justice.

This is a boundary line dispute involving property in Lots 1 and 2 of Rapley Estate in Pulaski County. Rose Courts, Inc., an Arkansas corporation, owns the east portion of Lot 2; and Harry L. Hastings and wife ¹ own the west portion of Lot 1. Running north and south between Lots 1 and 2 there was and is an unopened avenue 40 feet wide, east to west, and the lots of the litigants herein abut on said unopened avenue. Rose Courts brought this suit against Hastings to have the Chancery Court establish the true location of the unopened 40-foot avenue, and also to enjoin Hastings from alleged trespass on Rose Courts' property west of the unopened avenue. Rose Courts claimed that the unopened avenue was about 84 feet east of where Hastings claimed it to be. Hastings claimed: (a) that previous litigation was res judicata against Rose Courts; and (b) if res judicata were not sustained, the unopened avenue was 84 feet west of where Rose Courts claimed it to be. Neither side claimed title in any way to the unopened avenue.

The litigation has a considerable historic background. In 1872 the Pulaski Probate Court directed the administrator of the Estate of Charles Rapley to file a plat of portions of Sections 10, 11, and 14. This plat was filed and showed said Lots numbered 1 to 8 of Rapley Estate, each lot ² containing approximately 9 acres; and the plat showed an unopened (and unnamed) avenue 40 feet wide east to west, running north and south, and separating Lots 1, 4, 5, and 8 on the east side of the avenue from Lots 2, 3, 6, and 7 on the west side of the avenue. The plat did not show definitely whether the property line immediately west of the Rapley Estate was the Quapaw Line or the line of Cox's Quapaw Addition, which addition is 170 feet east to west and several hundred feet north and south. This failure of the plat to establish the said west line of Rapley Estate was probably the origin of the litigation herein to be mentioned. Except for the matter of res judicata, subsequently to be discussed in detail, the issue could be simply stated: if the west line of the Rapley Estate bordered the Quapaw Line, then the 40-foot avenue here involved should be as contended by Hastings; but if the west line of the Rapley Estate bordered Cox's Quapaw Addition, then the 40-foot avenue should be as contended by Rose. In other words, a strip of about 84 feet is involved in the present litigation, depending on who is right about the location of the unopened avenue.

A voluminous record was made in the Trial Court with scores of exhibits consisting of plats, surveys, court orders, deeds, and other instruments. A number of engineers and surveyors testified, and some even repudiated their own previously made plats as to location of the 40-foot avenue. Such repudiation tended to place the issue in grave doubt as to the actual location of the 40-foot strip. ³ The Trial Court denied Hastings' plea of res judicata and fixed the 40-foot avenue at the place urged by Rose Courts; and from that decree Hastings has appealed, urging two points:

'1. The Trial Court erred in not holding the present action barred by reason of Pulaski Chancery Cases No. 82474, No. 90142, and No. 101718, based on the law of res judicata.

'2. The Court erred in not locating the forty foot avenue as shown on the C. T. Brandt Survey of December 11, 1947.'

We do not reach appellants' second point because we are convinced that Hastings' plea of res judicata should have been sustained; and we now give the situations which show the applicability of such plea. First, we give the line of title of each litigant from the various deeds, all duly recorded:

(a) Rose Courts, the present appellee, received its deed from Arkansas Courts, dated June 27, 1950; Arkansas Courts received its deed from Arkansas Real Estate Company, Inc., dated December 9, 1949; and Arkansas Real Estate Company, Inc. received its deed from Little Rock Investment Company dated April 4, 1947.

(b) Harry L. Hastings and wife received their deed from C. C. McCord, dated May 10, 1955; and C. C. McCord received his deem from the State of Arkansas, dated December 27, 1935.

Certain cases in the Pulaski Chancery Court need to be identified:

(a) Case No. 82474 was by C. C. McCord, as plaintiff, against Arkansas Real Estate Company, Inc., as defendant. The decree rendered in February 1949 recited that McCord's title to the west 156.3 feet of Lot 1 Rapley Estate (that would be along the unopened avenue) was quieted, and that the boundary line between Lot 1 and Lot 4 (to the south of Lot 1) Rapley Estate 'is shown by Exhibit 8 herein, same being a plat of the survey made by C. T. Brandt December 11, 1947.' It will be observed that McCord owned his portion of Lot 1 until May 1955, and that Arkansas Real Estate Company, Inc. owned its portion of Lot 2 until December 1949, and that the parties to the present litigation claim through the respective parties in said Case No. 82474.

(b) Case No. 90142 in the Pulaski Chancery Court was dismissed by voluntary nonsuit and is unimportant.

(c) Case No. 101718 in the Pulaski Chancery Court was styled, Arkansas Real Estate Company, Inc., as plaintiff, v. C. C. McCord and wife, defendants, and filed January 18, 1955. In that case the Arkansas Real Estate Company, Inc. claimed ownership of the west 84 feet of Block 1, Rapley Estate (same being a portion of the Hastings property). It will be observed that Arkansas Real Estate Company, Inc. conveyed its title to Lot 2 in 1949 to Arkansas Courts, yet in 1955 Arkansas Real Estate Company, Inc. was claiming against McCord 84 feet from Lot 1, Rapley Estate. Against such claim in Case No. 101718, McCord pleaded that the decree in Case No. 82474 was res judicata against Arkansas Real Estate Company, Inc.; and by decree of July 28, 1955, McCord's plea of res judicata was sustained.

(d) Case No. 107579 in the Pulaski Chancery Court is the present case; and Hastings has pleaded the earlier cases as res judicata.

Mr. R. M. Traylor, President of Rose Courts, and also President of both of the predecessor corporations, Arkansas Courts, and Arkansas Real Estate Company, Inc., was called as a witness by Rose Courts in this case; and Mr. Traylor admitted on cross examination that the 84 feet involved in the present suit was the same 84 feet that was involved ⁴ in Case No. 101718. It is true that on re-direct examination Mr. Traylor claimed he did not know what his attorneys had alleged in the previous cases; but Mr. Traylor's admission must stand against Rose Courts, of which he is President. Such admission by Mr. Traylor is sufficient extrinsic evidence to identify the land in the previous litigation with the land in the present litigation and to establish Hastings' plea of res judicata. It is true that Arkansas Real Estate Company, Inc. had conveyed by deed to Arkansas Courts before the decree in Case No. 101718, but nevertheless the plea of res judicata was successfully used in Case No. 101718, with Case No. 82474 as the support for such plea; and Traylor's admission that the land in Case No. 101718 was the same as that claimed by Rose Courts in the present case establishes that the land in the present suit is the same as the land involved in Case No. 82474. Such extrinsic evidence supports the plea of res judicata.

The Latin words, 'res judicata,' literally translated into English mean 'a thing adjudged'; and freely translated into English mean 'the matter has been decided.' In Missouri Pac. R. Co. v. McGuire, 205 Ark. 658, 169 S.W.2d 872, we quoted the language from American Jurisprudence to explain res judicata:

"Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction."

In Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 610, Mr. Justice Humphreys, speaking for the Court, said:

'The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S.W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S.W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S.W.2d 735.'

We have given the line of title of Hastings and Rose Court to show that Hastings is in privity with McCord, and Rose Court is in privity with Arkansas Real Estate Company. In Missouri Pac. R. Co. v. McGuire, supra, we said:

'And in 30 Am.Jur. 957, in discussing who are privies within the rule of res judicata, it is stated: 'In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title.' See Meyer v. Eichenbaum, 202 Ark. 438, 150 S.W.2d 958, and cases and authorities there cited.'

In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S.W.2d 933, we said:

'The contention that the parties are not identical under the...