Hooper v. Wist

• Decision Date: 07 April 1919
• Docket Number: 173
• Citation: 211 S.W. 143,138 Ark. 289
• Parties: HOOPER v. WIST
• Court: Arkansas Supreme Court

211 S.W. 143

138 Ark. 289

HOOPER v. WIST

No. 173

Supreme Court of Arkansas

April 7, 1919

Appeal from Madison Chancery Court; Ben F. McMahan, Chancellor affirmed.

STATEMENT OF FACTS.

Frederick T. Hooper brought this suit in equity to confirm his title to certain lands described in the complaint.

The complaint alleges that he is the owner in fee and in possession of certain lands which are specifically described. His complaint first describes 120 acres of land and then describes the following:

"Part of the northeast quarter of the northwest quarter, section 1 township 13 north, range 26 west, beginning at a stone at the northeast corner of the above described one-fourth, thence west 7 chains and 15 links to a stone set in the standard line for the beginning point, thence south 42 degrees west with the middle of the old lane to the west line of said forty, thence north with said line to the northwest corner of said forty, thence east with the standard line 13 chains and 39 links to the beginning point containing 14 acres more or less." (A part of the land just described is the land in controversy in this suit.)

In the second paragraph of his complaint the plaintiff sets forth his muniments of title. In the third paragraph, plaintiff alleges that he and those under whom he claims title, have had adverse possession of all of said lands for more than seven years last past and have continuously paid the taxes thereon for said term of years; that there is no one else in possession of any part of said lands and that there is no one laboring under the disability of infancy, idiocy, or coverture; that there is no one known to the plaintiff claiming any part of said lands unless it be the part of the lands specifically described above; that at the February term of the Madison Chancery Court in 1912 Mary A. Wist filed her petition asking the court to confirm her title to a part of the northeast quarter of the northwest quarter of section 1 north, range 26 west; that both the plaintiff herein and Mary A. Wist owned land in said forty-acre tract and that a mistake was made in said decree in describing the boundary line in said forty-acre tract between the plaintiff and Mary A. Wist.

The prayer of the complaint is that the title to all said lands be quieted and confirmed in the petitioner, Frederick T Hooper, and that the chancery decree in the case wherein Mary A. Wist had her title confirmed to the lands in controversy be reformed to speak the truth. Frederick T. Hooper was made a party defendant to the chancery suit of Mary A. Wist to quiet her title to the lands in controversy and Mary A. Wist was made a party defendant to the present suit.

Mary A Wist filed an answer denying the general allegations of the complaint, and also specifically denying that any mistake was made in the chancery decree rendered at the February term 1912, of the Madison Chancery Court in the suit of Mary A. Wist to confirm her title to certain lands, including the land in controversy and in which Frederick T. Hooper was made a party defendant. The defendant further alleges that she is the owner of the land in controversy and prays that the plaintiff's complaint be dismissed in so far as it affects the land in controversy.

The plaintiff, Frederick T. Hooper, was a witness for himself. According to his testimony he owned a part of the forty-acre tract of land in which the land in controversy is situated and Mary A. Wist owned the remaining part of said forty-acre tract. There was, at one time, a lane between the two tracts of land and he cultivated up to one side of the lane and Mary A. Wist cultivated up to the other side of it. He always claimed the land down to the old lane. There is a fence there now and the old lane has grown up in bushes. He denied ever signing an agreement that the line between him and Mary A. Wist should be on a line south 45 degrees west. He always considered the old lane the line between them. He was served with summons in the chancery suit of Mary A. Wist to quiet her title to certain lands including the land in controversy. He was informed that she was not trying to take any of his land and filed no answer in that case. His testimony was corroborated in the main by that of his son.

J. W. Wist testified that he was the husband of Mary A. Wist and acted as her agent in transacting her business concerning this land; that his wife had her title to the land confirmed in the chancery court in 1912, and that the line in dispute began 7 chains and 15 links from the northeast corner of the forty and ran south 45 degrees west to the west line of the forty; that this line was agreed upon several years ago by Hooper and himself; that the deed of Hiram Richie to his wife was changed to correspond with the agreement made between him and Mr. Hooper.

G. W. Anderson, who was circuit clerk at the time testified that at the request of the county surveyor he made a notation on the deed from Hiram Richie to Mary A. Wist changing the description from 50 degrees to 45 degrees as it now shows.

Three other witnesses for the plaintiff testified that the middle of the lane was the dividing line between Frederick T. Hooper and Mary A. Wist; that the lane was sixteen feet wide and that each party had cultivated up to his side of the lane.

It was decreed that the boundary line between Frederick T. Tooper and Mary A. Wist be on a line south 45 degrees west in the northeast quarter of the northwest quarter of section 1, township 13 north, range 26 west, and that the plaintiff's complaint be dismissed for want of equity in so far as it affects the defendant's title to the land in this forty-acre tract.

It is further decreed that the plaintiff's title to all the other lands described in his complaint be confirmed in him as prayed for in his complaint. The plaintiff has appealed.

Decree affirmed.

W. N. Ivie, for appellant.

The question at issue is purely a question of fact, and is settled by the evidence. The law is controlled by 100 Ark. 555, 140 S.W. 743.

Appellant has claimed the land and cultivated it for more than seven years and has always recognized the old lane or fence row as the boundary line, a line visible and known, and 100 Ark. 555 is conclusive of the settlement of a disputed boundary line acquiesced in by both parties to this action and his title should be confirmed.

Combs & Combs, for appellee; J. B. Harris, of counsel.

Appellant if he ever had title to the strip of land, is concluded by the decree, after being duly summoned in West v. Pool et al., as the court below held. The finding of the chancellor is conclusive as it is clearly not against the preponderance of the evidence. 67 Ark. 287; 68 Id. 314; 78 Id. 275; 91 Id. 549. The decree in West v. Pool concludes appellant's rights. 41 Ark. 75. The court had jurisdiction and did not exceed it as to subject-matter or the parties. Appellant is bound by the findings and decree of the court and is estopped in a subsequent suit to deny a material fact charged in the pleadings and found by the court. 43 Ark. 439; 119 Id. 413. See also 57 Ark. 97. The matter is now...