O'Neal v. Ellison, 79-79

• Decision Date: 15 October 1979
• Docket Number: No. 79-79,79-79
• Citation: 266 Ark. 702,587 S.W.2d 580
• Parties: John O'NEAL and Eileen O'Neal, his wife et al., Appellants, v. Leonard ELLISON and Billie Langston Ellison, his wife, Appellees.
• Court: Arkansas Supreme Court

Page 580

587 S.W.2d 580

266 Ark. 702

John O'NEAL and Eileen O'Neal, his wife et al., Appellants, v. Leonard ELLISON and Billie Langston Ellison, his wife, Appellees.

No. 79-79.

Supreme Court of Arkansas, In Banc.

Oct. 15, 1979.

Henry J. Swift, Osceola, for appellants.

Moore & Gibson, Osceola, for appellees.

HICKMAN, Justice.

This is an appeal from a decree of the Mississippi County Chancery Court which decided the title to about 9.2 acres of land. The land lies between two farms, one owned by the O'Neals, who are the appellants, and the other owned by the Ellisons, the appellees. The chancellor found title to be in the Ellisons.

The appellants argue on appeal the chancellor was wrong for three reasons: First, the Ellisons had no title, or color of title, to the land; second, the chancellor improperly applied the law of landlord-tenant to this case; and, finally, there was no adverse possession of the land by the Ellisons.

We agree the chancellor improperly applied the law. However, on appeal we review a chancery case De novo, and if the chancellor's decision can be sustained on other grounds, it will be done. Pharris v. Vanderpool, 230 Ark. 233, 321 S.W.2d 757 (1959). We find a preponderance of the evidence supports the appellees' claim of adverse possession and accordingly affirm the decree.

The O'Neals own farmland in Section 27, having bought it in 1965. The Ellisons own farmland in adjoining Section 26, having purchased it in 1951. The two farms were separated at the disputed place by a turn-row, a dirt road of sorts that was used by tractors to turn around at the end of a row.

In 1967, the O'Neals leased the Ellisons' farmland in Section 27 and it was agreed since the O'Neals would farm land in both Section 26 and Section 27, the turn-row should be plowed under. It was plowed under and for 9 years the O'Neals farmed the Ellisons' land under a lease.

At about the time the lease was made, some sort of agreement was made between the parties about having the land surveyed later to locate the boundary between the farms. Mr. O'Neal testified the agreement was to Establish the boundary line; the Ellisons' testimony was that the survey was to simply Relocate the boundary line, which they considered to be the old turn-row.

After 9 years had lapsed and the O'Neals had surrendered possession of the Ellisons' land, a survey was made. According to the survey the 9.2 acres was an encroachment on Section 26, land to which the O'Neals had record title.

The Ellisons filed a quiet title suit relying on their record title; the O'Neals were not named parties. The O'Neals joined in the suit anticipating there might be a dispute over the 9.2 acres. The Ellisons amended their claim, in the alternative claiming title to the 9.2 acres by adverse possession.

At the conclusion of the trial the chancellor ruled the O'Neals were estopped as a matter of law from disputing the Ellisons' claim because of the landlord-tenant relationship that had existed between the parties. While the chancellor did not directly rule on the claim of adverse possession by the Ellisons, he did rule there were no other adverse claimants except the Ellisons to this land.

We have no difficulty affirming the decree on the basis of adverse possession. The Ellisons had purchased their land in 1951; the farm was leased to others for several years. The Ellisons then farmed this particular 9.2 acres for one or two years before they leased it to the O'Neals; it was farmed by the O'Neals for 9 years under lease, without any hint of an adverse claim.

The O'Neals argue that since they had record title to all land in Section 26 and the Ellisons had no record title, or color of title, the chancellor was wrong in his decision.

Color of title is not an essential element to a claim of adverse possession if there is actual possession, and there is no doubt the Ellisons possessed the land in excess of 11 years. Coons v. Lawler, 237 Ark. 350, 372 S.W.2d 826 (1963).

Mr. O'Neal's testimony actually buttressed the Ellisons' claim of adverse possession. He readily admitted he farmed the land in question for 9 years thinking it belonged to the Ellisons; he never knew of anyone else who claimed it; he recognized that the Ellisons claimed the land east of the turn-row, and never controverted it. The O'Neals' claim is like many in a boundary line case. Once it is discovered that land lies within legal land calls, it is presumed it is owned by the record title holder. As our many cases demonstrate, that is not always the case. The virtually undisputed evidence was that the Ellisons had possessed and claimed this land since they bought it, with no objection from anyone, including the O'Neals.

The chancellor, no doubt, thought he found a ready answer to the question of adverse possession. He ruled the question of title was resolved because the O'Neals had been tenants of the Ellisons and were estopped from disputing their landlord's claim.

The O'Neals were not estopped because there was no longer a landlord-tenant relationship and the O'Neals were not in possession of the land.

Generally, a tenant is estopped to deny his landlord's title when the tenant is in possession of the land. Lewis v. Harper, 149 Ark. 43, 231 S.W. 874 (1921). However, after the tenant surrenders his possession, he is no longer estopped to deny his landlord's title. See Washington v. Moore, 84 Ark. 220, 105 S.W. 253 (1907) and 49 Am.Jur.2d § 130. There are exceptions to these general rules. There are circumstances wherein a tenant can deny a landlord's title while possession is retained. We recognized this principle in the case of Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957). There are also instances in which a tenant can be estopped, after surrendering possession, to deny a landlord's title; for example, where fraud or misrepresentation on the part of the tenant is involved. See generally 49 Am.Jur.2d § 129. However, none of these circumstances are present in this case.

While the O'Neals were not estopped as a matter of law to contest the Ellisons' claim, a preponderance of the evidence clearly supports the finding of the chancellor that the Ellisons should have title to this land.

Affirmed.

GEORGE ROSE SMITH, BYRD and PURTLE, JJ., concur.

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