Smith v. Smith

• Citation: 2011 Ark. App. 598,385 S.W.3d 902
• Decision Date: 05 October 2011
• Docket Number: No. CA 11–15.,CA 11–15.
• Parties: Charlie SMITH, Jr., Appellant v. Mary D. SMITH and L. Sanford Smith Testamentary Trust, Appellees.
• Court: Court of Appeals of Arkansas

2011 Ark. App. 598

385 S.W.3d 902

Charlie SMITH, Jr., Appellant

v.Mary D. SMITH and L. Sanford Smith Testamentary Trust, Appellees.

No. CA 11–15.

Court of Appeals of Arkansas.

Oct. 5, 2011.

Elliot Dion Wilson, Helena, for appellant.

Robert G. Serior, Claredon, for appellees.

CLIFF HOOFMAN, Judge.

[Ark. App. 1]Appellant Charlie Smith, Jr. appeals the trial court's decision quieting title to 27.5 acres of land in appellee Mary D. Smith, as trustee of the L. Sanford Smith Testamentary Trust, by adverse possession. Appellant argues on appeal that the trial court erred in its decision. We affirm the decision to quiet title in appellee but modify the legal description of the property to the extent that it is erroneously stated in the quiet-title decree.

On November 14, 2008, appellee filed a complaint against appellant ¹ seeking to quiet title to the following described land located in Phillips County, Arkansas, hereinafter referred to as the “subject property:”

All that part of the West Half of the Northeast Quarter (W 1/2 NE 1/4) in Section Nineteen (19), Township Two (2) South, Range Three (3) East (T2S R3W), Phillips County, Arkansas, lying North (N) of the Beaver Bayou Drainage Canal, containing 27.5 acres, more or less.

[Ark. App. 2]Appellee alleged in the complaint that she and her predecessors in title owned land, referred to as the “homestead property,” which is directly adjacent to the subject property to the north. According to the complaint, appellee and her predecessors in title have had color of title in the homestead property for more than fifty years, and they have paid ad valorem taxes on this property for this entire time. She also alleged that she and her predecessors have held color of title to the subject property since her late husband, Sanford L. Smith, received a warranty deed to the property from his mother, Odeal Smith, on February 23, 1954, and that they have been in open, notorious, continuous, exclusive, hostile, adverse, and actual possession of the property since that time. Beginning after the death of appellee's husband on December 11, 2004, appellee alleged that appellant began trespassing on the subject property. Appellee claimed that appellant, on different occasions, had placed survey flags on the subject property, had planted a row of tree seedlings, and had harassed the employees of appellee's tenant as they were harvesting crops they had planted on the subject property. The complaint further alleged that on November 10, 2008, appellant placed fence posts on the property without the approval or consent of appellee. Appellee prayed that fee simple title to this subject property be quieted in her as trustee through the doctrine of adverse possession and that a temporary restraining order be entered against appellant to prohibit him from building the fence or otherwise interfering with appellee's use of the property.

On April 23, 2009, appellant filed a counterclaim, alleging that he owned the subject property pursuant to a warranty deed filed on February 12, 1964, and that he and his [Ark. App. 3]predecessors in title had color of title and had paid all taxes on the property for more than fifty years. Appellant requested that title be quieted in him. Appellee filed her response denying the allegations in the counterclaim and pleading adverse possession as an affirmative defense.

On May 8, 2009, appellee filed an amended complaint, restating all of the allegations in the original complaint and seeking to join First Bank of the Delta as a necessary party because the bank was a mortgagee on appellant's mortgage on the subject property. Appellant filed an answer on May 12, 2009, generally denying the allegations in the amended complaint, and on May 27, 2009, First Bank filed its answer admitting that it had a deed of trust on the subject property and alleging that its lien on the property was valid and prior to any claim by appellee.

Appellee's request for a temporary restraining order against appellant was granted by the trial court on June 1, 2009, after a hearing on the matter. Appellee also filed a motion for summary judgment with supporting affidavits, which was denied by the trial court on the basis that there were unresolved issues of fact in the case.

At the hearing on May 6, 2010, appellee introduced exhibits substantiating her color of title to the land at issue, including the subject property. The first deeds pertinent to this case were filed in November 1938: from Beaver Bayou Drainage District to Odeal Smith, appellee's mother-in-law, and from Henry and Blanche Davidson to Odeal Smith, which conveyed the 27.5 acres in the subject property. A redemption deed for the subject property was then filed in 1948 to the L.S. Smith Estate, which was Odeal Smith's husband's estate. [Ark. App. 4]Next, in February 1954, there is a warranty deed from Odeal Smith to Sanford Smith, appellee's husband, that also conveyed the subject property. After Sanford Smith's death, his last will and testament was filed on April 4, 2005, appointing appellee as executrix and trustee of his estate, and a fiduciary deed was recorded on November 12, 2008, transferring the property at issue to appellee as trustee of the L. Sanford Smith Testamentary Trust.

Appellee introduced the testimony of several witnesses to support her claim of adverse possession of the subject property. Harry Schwantz testified that he is fifty-five years old, that his father and Sanford Smith were close friends, and that he remembered Sanford farming the subject property since 1964 or 1965. He also personally farmed the land for Sanford in 1973 and in 1985. Harry testified that Sanford continued to farm the subject property until the mid–1990s, when his tenant, Vic Richmond, started farming the land. He further stated that he had never seen appellant on the property prior to Sanford's death in 2004 and that appellant had never asked him to get off of the property.

Hershell Schwantz, Harry's brother, also testified. He stated that he worked on Sanford Smith's farm from 1981 until 1984, and that he hunted and played on the subject property when he was a child. He testified that he had never seen appellant on the property or had a confrontation with him about ownership of the property.

Louise Smith Bloesch, who is Sanford Smith's sister, testified that she is eighty-seven years old and that she grew up on the homestead property adjacent to the subject property. She stated that her family had farmed the subject property at least since she was a teenager and that her brother farmed the property from at least 1954 until the 1990s, when he retired [Ark. App. 5]and rented the land to Richmond. According to Bloesch, she had never seen appellant on the subject property nor heard of him claiming ownership of it.

Louise's son and Sanford's nephew, Emil Bloesch, testified that he was very familiar with the subject property and that he remembered his uncle planting soybean crops on the property from 1952 through 1964. He also had no knowledge of appellant being on the property or claiming ownership.

The next witness was Vic Richmond, the current tenant of the subject property. He testified that he grew up in the area and remembered seeing Sanford Smith farm the land since he was a child. Richmond stated that he personally helped plant crops on the land in 1978 through 1982. When Sanford retired in 1996, Richmond testified that he began renting the property and that he has continued to farm the land until the present time. Richmond stated that he had never seen appellant on the land and that the first time that he became aware of any claim by appellant was in the spring of 2008, when appellant approached Richmond's farm manager and stated that he owned the land. Richmond stated that he also discovered during this same time period that trees had been planted on a portion of the subject property and that fence posts had been erected along the northern boundary.

Edith Whitted, a licensed abstractor with East Arkansas Title Company, was also called as a witness. She introduced a document listing the tax payments on the contiguous homestead property and the names under which the property was assessed each year. This document reflects that taxes were paid on the property from 1954 on and that it was assessed under the names of appellee and her predecessors in title.

[Ark. App. 6]Appellee also testified and stated that she had lived on the adjoining homestead property since she married Sanford Smith in 1973. According to appellee, her late husband farmed the subject property the entire time that they were married until he retired in 1996, when Richmond started renting and farming the property. She testified that she had never seen appellant on the subject property until the spring of 2008 and that she was not aware that she and her predecessors had not been paying taxes on the adjoining subject property until this litigation arose, as she assumed this land was included in the taxes that had been paid on the homestead property. Appellee stated that appellant's property was south of the drainage canal and that there was no way across the canal onto the subject property from his land, so that appellant had to come around by road.

In support of his claim to the property, appellant testified that he and his wife purchased the subject property in 1964 from Blanchie Davidson, that they received a quitclaim deed, and that they have paid ad valorem taxes on the property since that time. He further stated that he had redeemed the property for nonpayment of taxes in 1974, 1979, and 1982. According to appellant, the property was full of weeds, undergrowth, and vines when he bought it and could not be farmed until 1966, when he cleared part of it. Appellant testified that Sanford started farming the property in 1966 and that he had conversations with him about ownership of the land at that time, to no avail. Appellant also consulted a lawyer...