Hill v. Cherokee Construction Company

• Decision Date: 24 April 1911
• Citation: 137 S.W. 553,99 Ark. 84
• Parties: HILL v. CHEROKEE CONSTRUCTION COMPANY
• Court: Arkansas Supreme Court

137 S.W. 553

99 Ark. 84

HILL v. CHEROKEE CONSTRUCTION COMPANY

Supreme Court of Arkansas

April 24, 1911

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.

Decree affirmed.

C. T Wetherby, for appellant.

1. The complaint alleged that appellant was in possession of all the lands and enjoying the rents and profits, to the exclusion of the other owners. Mere possession, it is true, by a co-tenant cannot defeat partition; but when it is admitted that the other owners have been "excluded," then the co-tenant in possession has all the rights that would accrue to a stranger. Appellant's demurrer to the complaint should have been sustained. 30 Cyc. 215, par. 4; Id 191-2; Id. 1072; 43 N.C. 25; 25 Ark. 359; 55 N.E 296. One co-tenant can hold adversely to his other cotenants. 40 Ark. 155.

2. The demurrer to appellant's answer should have been overruled. He had been in adverse possession of fifty-three acres of the lands for more than seven years. This being a partition suit, and appellant the defendant therein, he was not required to exhibit any muniments of title. Moreover, appellee did not move the court to require the nature of appellant's right of possession to be developed in the answer. 27 Ark. 77; 40 Ark. 155; 71 Ark. 544; 47 Ark. 235; 44 Ark. 334.

Ira D. Oglesby, for appellant.

The allegations of the answer are not sufficient as against a tenant in common. The possession of a co-tenant is not adverse possession; it is the possession of all. No facts are stated showing notice to his co-tenants that he was holding adversely to them, nor any facts constituting an ouster or anything that would put them upon notice. 57 Ark. 97; 61 Ark. 525; 55 Ark. 104.

OPINION

FRAUENTHAL, J.

This was a suit instituted in the Sebastian Circuit Court to obtain the partition of a tract of land containing 476 acres, according to the respective interests of the parties therein. The complaint alleged that the plaintiff and defendants were the owners of the land as tenants in common. It was alleged that the land was originally owned by one J. M. Hill, who died intestate, leaving a number of children, who inherited the same from him, and that through mesne conveyances the plaintiff below, the Cherokee Construction Company, had acquired and become the owner of the interests of all the children except the defendants. It was alleged that the plaintiff was the owner of seven-ninths of the land, and that the defendant Aaron Hill, who was one of the children, was the owner of one-ninth thereof, and the other defendants were owner, s of the remaining one-ninth. It was also alleged in the complaint that the said Aaron Hill "has been in possession of said lands and enjoying the rents and profits thereof to the exclusion of the other owners." The complaint also sought an accounting for the rents thus received by said Hill, but this relief was subsequently abandoned.

To this complaint Aaron Hill interposed a demurrer, which was overruled. He thereupon filed a separate answer, to which the plaintiff interposed a demurrer, which was sustained by the court, and, the defendant refusing to plead further, a judgment ordering a partition of the land was entered, from which said Aaron Hill has alone appealed.

In his answer, the defendant did not deny the allegations of the complaint, which asserted the title in the children of said Hill by inheritance, and the acquisition by plaintiff of the interests in the land of all the children of said Hill except the defendants. He denied, however, in his answer that the plaintiff and the defendants owned all the land as tenants in common, and alleged that he himself had acquired title to fifty-three acres of said land by adverse possession, and specifically described the fifty-three acres to which he claimed an indefeasible title. On this appeal it is conceded that plaintiff and defendant are tenants in common of all the land except said fifty-three acres. As to said fifty-three acres, it is insisted by the defendant that the plaintiff does not own any interest therein but that defendant, Aaron Hill, has become invested with the absolute title thereto by adverse possession.

It is urged by counsel for defendant that the court erred in sustaining the demurrer to so much of the answer as asserted title by adverse possession in him to said fifty-three acres. In his answer the defendant alleged that "he now is and for more than seven years prior to the beginning of this action has been in the possession" of said fifty-three acres; and further alleged "that he has held said land and now holds same openly, publicly, notoriously, peaceably and adversely to the plaintiff and all the world under a claim of right and title."

The questions raised by this appeal are whether or not the lower court erred in overruling the demurrer of the defendant to the complaint, or in sustaining the demurrer of the plaintiff to the answer. In order to decide these questions, we think that it is only necessary to determine whether or not the complaint alleged that the defendant was in and holding possession of the land adversely to the rights and claim of the plaintiff, or whether or not the answer sufficiently pleaded adverse possession of any of said land by the defendant.

It was ruled by this court in the case of Byers v. Danley, 27 Ark. 77, that partition cannot be had of lands which are held adversely, and this decision has been repeatedly approved and followed by this court in other cases. London v. Overby, 40 Ark. 155; Moore v. Gordon, 44 Ark. 334; Criscoe v. Hambrick, 47 Ark. 235, 1 S.W. 150; Head v. Phillips, 70 Ark. 432, 68 S.W. 878; Eagle v. Franklin, 71 Ark. 544, 75 S.W. 1093; Landon v. Morris, 75 Ark. 6, 86 S.W. 672; Moore v. Willey, 77 Ark. 317, 91 S.W. 184.

It is, however, not necessary that the plaintiff be in actual occupation of the land in order to maintain a suit for the partition thereof among the parties owning the same as tenants in common. The possession of the land by one of the co-tenants is in contemplation of law the possession of all of them. The occupancy of the land by the tenant in actual possession is not necessarily adverse to those who are not in actual possession; such possession is presumptively the possession of all the tenants, although such presumption can be rebutted by showing that the possession held by such tenant was adverse to his cotenants. Ashley v. Rector, 20 Ark. 359; Cocks v. Simmons, 55 Ark. 104, 17 S.W. 594; 30 Cyc. 119.

It has been well settled that one tenant may oust his cotenant and hold the land adversely to him; and if his adverse possession thereof is held for the period prescribed by the statute of limitation, his right and claim thereto will ripen into an absolute title as against all cotenants as well as others. Ashley v. Rector, supra; Brewer v. Keeler, 42 Ark. 289; Eagle v. Franklin, supra. But the mere fact that one cotenant receives the entire rents of the land is not sufficient to divest his cotenants of the possession...