Singer v. Naron

• Decision Date: 19 June 1911
• Citation: 138 S.W. 958,99 Ark. 446
• Parties: SINGER v. NARON
• Court: Arkansas Supreme Court

138 S.W. 958

99 Ark. 446

SINGER v. NARON

Supreme Court of Arkansas

June 19, 1911

Appeal from Bradley Circuit Court; Henry W. Wells, Judge; reversed.

STATEMENT BY THE COURT.

Jefferson Singer died intestate at Hermitage, in Bradley County, Ark on the 18th of November, 1873, owning about 800 acres of land on which he resided. He left surviving him his widow and seven children, who continued to reside on the land. A. J Singer was put in charge of the land by his mother, and he managed it for five years. In November, 1878, he left Bradley County, riding a horse which he said belonged to the family. He first went to Louisiana, and then to Texas. At infrequent intervals he wrote to different members of the family and received replies from them. After 1887 no more was heard of him until 1909, at which time he returned to Arkansas, and asserted a claim to an undivided one-seventh interest in the land above referred to. The other children of the deceased Jefferson Singer, not having heard of their brother since 1887 and believing him to be dead, divided up the estate between themselves, and executed deeds to each other to effectuate the partition. Each one of the children went in possession of that part of the land set apart to him, and ever since has occupied it, claiming it for his own. Subsequently to the partition, a railroad was located and constructed across a part of the land, and a townsite located thereon. Numerous lots have been sold and conveyed to various persons, to the number of about 150.

When the land was divided in 1895, a two-sevenths interest was allotted to J. M. Singer. J. M. Singer claimed to the other heirs that when A. J. Singer left he sold him the horse which he rode away, and that A. J. Singer gave him his interest in the land as security for the purchase price of the horse. On January 8, 1910, A. J. Singer instituted an action in the circuit court against his brothers and sisters, and the purchasers from them of the lands in controversy, to recover an undivided one-seventh interest therein. Other facts will be stated in the opinion. The case was tried before a jury and a verdict was returned in favor of the defendants. To reverse that judgment, the plaintiff, A. J. Singer, has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

B. L. Herring, for appellant.

There is no evidence in the record to support a claim of adverse possession by appellees and their grantors as against appellant. Nothing in the evidence tending to show a disclaimer, disavowal or repudiation of appellant's title by his coheirs, and without such express disclaimer, etc., and notice thereof brought home to the appellant, there was no adverse possession by them as against his title. There is no such thing as the fiduciary relation of cotenants and at the same time the relation of adverse occupant and ousted owner among cotenants. The original entry and possession being that of cotenants, it continues as such until there has been a repudiation of the title on the part of the tenant in possession with notice thereof against those out of possession. 89 Ark. 22; 23 Ark. 735; 43 Ark. 469, 489; 86 Ark. 202, 205; 131 S.W. 1 171, 1 175; 61 Ark. 527, 540; 57 Ark. 97, 1 110; 132 S.W. 1002, 1003; 122 S.W. 232; 134 S.W. 180. The testimony shows that appellant's title and rights were recognized by his cotenants if he had not sold to J. M. Singer, at all times, and that they presumed that he was dead. There could be no repudiation of title against him as a dead man. In that capacity the statute of limitations would not run against him; and recognition of his title and rights otherwise shows that their possession was no adverse. 80 Ark. 444, 446; 128 S.W. 472, 475; 42 Ark. 118, 120; 45 Ark. 81, 89. The division of the land among the coheris, and the subsequent execution and recording of quit-claim deeds, if intended as an act of ouster, would not affect appellant's rights until he had notice thereof. 130 S.W. 461, 462; 55 Ark. 104, 109; 69 Ark. 95, 98; 76 Ark. 525, 528. The court erred in instructing the jury that appellant had notice of the execution of the deeds of partition and of the recitals therein from the time the same were filed for record. The court also erred in instructing the jury that appellant's cotenants were entitled to presume that he was dead, after not hearing from him, and having no knowledge of his continued existence for five years.

D. A. Bradham, Fred L. Purcell, M. Danaher and John T. Hicks, for appellees.

1. Appellant was not a tenant in common when he left in 1878 and has not been since that time, because in 1876 he and his mother set apart and allotted to him a definite portion of the lands, and thereafter he treated and claimed this portion as his own, making improvements thereon until he left the State. All of the family understood and acquiesced therein, and after all had reached maturity ratified it. The parol sale by him to his brother had reference to this particular portion of the land, and although, being in parol, and within the statute of frauds, the fact that it was followed by possession on the part of the brother, which continued for more than seven years with all the necessary elements, makes a good title in the brother. 57 Ark. 110.

2. One or more tenants in common may oust another by any act of hostility which is sufficiently unequivocal and notorious to be understood by the community in which the land in question is situated. 30 Mo. 272, 77 Am. Dec. 614. When in 1895 the heirs assembled to exchange mutual deeds, and the question arose as to J. M. Singer's right to have deeded to him the one-seventh share of appellant in the estate, and he agreed to defend the other heirs and himself against any claim on the part of appellant, the law will construe his act to be hostile; and, this act being also open and notorious, and followed by open and notorious possession continuing in J. M. Singer and his grantees for fourteen years prior to the institution of this suit, it is clearly sufficient as a statutory bar. 27 Am. Dec. 335; 90 Am. Dec. 448; 15 U.S. 596; 42 Ark. 289; 20 Ark. 359, 374-376.

3. Actual knowledge by appellant was not necessary. (a) Actual notice was rendered impossible by the conduct of appellant. (b) The acts of the widow and six heirs in possession were such as to give him constructive notice of what they did. 90 Am. Dec. 451. (c) His knowledge of the facts was sufficient to put him upon inquiry, and the law presumes him to have had notice of those things that were reasonably to be expected. 7 Am. St. Rep. 579; 70 F. 529; 52 F. 838; 36 P. 364; 38 P. 521; 28 N.W. 409; 18 S.W. 355; 27 Tex. 355; 28 S.W. 360; 77 Am. Dec. 614.

4. Adverse possession as between tenants in common is a question of fact for the jury. 77 Am. Dec. 614; 2 Watts & Serg., 182; 4 Gratt. 16.

OPINION

HART, J., (after stating the facts.)

The principal question for the decision of the court is whether or not the plaintiff was barred of his right of recovery by the adverse possession of the defendants and their grantors. The general rule is that the possession of one tenant in common is the possession of his cotenant, but it is equally well settled that when one tenant in common can disseize another the difficulty is in determining what acts should constitute such disseizin or ouster. In the case of Watson v. Hardin, 97 Ark. 33, 132 S.W. 1002, this court held: "Where, in a suit to quiet title by one claiming by adverse possession of the owner's widow, there is a question as to whether notice of the widow's repudiation of her husband's title was brought home to the heir, or was so notorious as to raise the presumption that he had notice thereof, the question of adverse possession of the widow is for the jury."

In the case of Lefavour v. Homan, 3 Allen 354, Bigelow, C. J., speaking for the court, said:

"It may, however, be safely said that a sole and uninterrupted possession and pernancy of the profits by one tenant in common, with the knowledge of the other, continued for a long series of years without any possession or claim of right and without any perception of profits or demand for them by the cotenant, if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right, will furnish evidence from which a jury may and ought to infer an actual ouster and adverse possession."

In the case of Sydnor v. Palmer, 29 Wis. 226, at page 249, Dixon, C. J., speaking for the court, said:

"The rule of law in such case very clearly appears to be that where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them, and to turn his occupancy into an adverse possession or enjoyment under an invalid or merely colorable claim of title to the whole, and so as to acquire the title of the entire estate by lapse of time under the statute of

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