Minton v. McGowan, 5--6142

• Decision Date: 12 February 1973
• Docket Number: No. 5--6142,5--6142
• Citation: 490 S.W.2d 136,253 Ark. 945
• Parties: Ruby MINTON and Eva L. Simpson, Appellants, v. Roy McGOWAN et ux., Appellees.
• Court: Arkansas Supreme Court

Page 136

490 S.W.2d 136

253 Ark. 945

Ruby MINTON and Eva L. Simpson, Appellants, v. Roy McGOWAN et ux., Appellees.

No. 5--6142.

Supreme Court of Arkansas.

Feb. 12, 1973.

Eugene Sloan, Jonesboro, for appellants.

Henry S. Wilson, Trumann, for appellees.

HARRIS, Chief Justice.

The question in this case is whether the chancellor, at the conclusion of appellants' case, properly sustained a demurrer to the evidence.

E. A. McGowan, the owner of an eighty-acre hill farm in Craighead County, died in 1933. His wife, Annie McGowan, continued to live on the property, which was the family homestead, until 1951, at which time she passed away. Roy McGowan, who, with his wife, are the appellees, was born upon, and has lived his entire life, upon this property, here in controversy. Appellants, Ruby Minton and Eva L. Simpson, married and moved away from the farm in 1924. Following their mother's death, in 1952, appellants consulted an attorney in Jonesboro with reference to the fact that Roy held drainage district deeds under which, according to appellants, he was claiming title. No action, however, was taken, and Roy continued to live on, and to farm, the property. In June, 1970, all the heirs of E. A. McGowan except appellants, deeded their interest in the property to Roy, and on September 10, 1970, appellants instituted suit in the Craighead County Chancery Court seeking partition of the lands, alleging that they were two of the seven children of E. A. McGowan and each asked that her one-seventh interest in the lands be set apart or the lands sold wherein they could derive their proportionate shares. After a demurrer had been overruled, appellees filed an answer asserting that they had acquired title to the property by adverse possession. Thereafter, appellees moved for summary judgment, but this motion was also denied, and the case proceeded to trial.

At the conclusion of appellants' case, counsel for appellees demurred to the evidence, the court sustaining the demurrer, and accordingly entering its decree finding that appellees had acquired title by adverse possession and that appellants had no right, title or interest in the lands. From the decree so entered, appellants bring this appeal.

Since this case involves a demurrer to the evidence, it is the duty of the trial court to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence, when so considered, fails to make a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225. At the time the plaintiff completes his case, it is not proper for the court to weigh the facts, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Pults v. Pults, 236 Ark. 434, 367 S.W.2d 120; Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872.

In the instant litigation, though portions of the testimony by appellants favor the position of appellees, we are still of the view that appellants offered some evidence presenting factual issues for determination. For instance, Charles P. Simpson, husband of appellant Eva L. Simpson, testified that following the death of the mother in 1951, while still at the cemetery, he asked Roy if an administrator shouldn't be named while the heirs were there all together. He said that Roy answered that there wasn't any hurry and he (Roy) would take care of the matter later on and wouldn't make any charge. He testified that he next talked with Roy about getting the estate wound up in 1957, at which time he told the latter that he wanted to build a house on his wife's part of the land for a home; that Roy responded that he did not have it in shape to divide up, and walked away. The witness said that he next talked with Roy at the cemetery following the Ace Puckett funeral ¹ in 1962, at which time Roy said that he 'hadn't got it ready'. The witness stated that he also talked to Roy several times in 1963 when the latter came to the house to sell butter and eggs, and that Roy gave the same answer. ² In 1964, Simpson testified that he told Roy that he, (Simpson) was in the market for a cow and he went to the farm with this appellee to look at a cow. According to Simpson, Roy said he wanted $200.000 for the cow.

'I said 'Well, that's a little high but being you need to sell her and we need one pretty bad I believe I'll do that'. He said, 'Well, you'll have to have your wife sign a deed to her part of the estate' and I said, 'Well, I wouldn't give that for the cow without the $200.00' so right then we went back to the house and that was all.'

According to Simpson, Roy did not, during any of these conversations, state that he owned or was claiming the property as his own. The witness quoted his last conversation, in April or May of 1970, with Roy when appellee came to his home to ask Eva to sign a deed, as follows:

'I might not get all of the words but he said to her 'What do I do to get you to (deed) your part of that place?' and she said, 'What do I get out of it?' and he said, 'You ain't going to get nothing' and he said, 'I'll make you' and I said, 'Wait, I'll get in there now'. I said, 'You won't made my wife do nothing' and I said, 'What do you want to give her?' and he said 'I wouldn't give her very much. It wasn't worth--I believe he said--$350.00 when he took it over. He said, 'It wasn't worth much'. He said, 'I wouldn't give much' and I said, 'Well, just a little won't get it'. He said, 'Well, I'll sue her. I'll make her that way'.'

Simpson testified that after about two weeks, since Roy did not institute suit, appellants filed...