Ueltzen v. Roe, 5--4121

• Decision Date: 27 February 1967
• Docket Number: No. 5--4121,5--4121
• Citation: 242 Ark. 17,411 S.W.2d 894
• Parties: R. T. UELTZEN et al., Appellants, v. Billy ROE and Neva Roe Sowl, Appellees.
• Court: Arkansas Supreme Court

Page 894

411 S.W.2d 894

242 Ark. 17

R. T. UELTZEN et al., Appellants, v. Billy ROE and Neva Roe Sowl, Appellees.

No. 5--4121.

Supreme Court of Arkansas.

Feb. 27, 1967.

David O. Partain, Van Buren, for appellants

Batchelor & Batchelor, Van Buren, for appellees.

BROWN, Justice.

This is a suit to quiet title brought by plaintiffs-appellees, Billy Roe and Neva Roe Sowl, brother and sister. They brought suit against the six brothers and sisters of their mother, Maude Roe. Basing his findings on adverse possession, estoppel, and laches, the trial court vested title in appellees. Appellants contend, first, that the Roe family failed to establish hostile possession, and, second, that no notice of adverse claim was ever brought home to appellants.

Here is the opinion of the trial court. It sets out the issues with clarity and of course states the factual conclusions, together with the law found to be applicable:

OPINION

The land in controversy, a farm of about 277 acres lying southeast of the town of Graphic in Crawford County, Arkansas, was owned by Laura and R. R. Ueltzen, wife and husband, prior to 1900. To this union six children were born, namely, Maude Roe, plaintiffs' mother, R. T. Ueltzen, Onenta Ward, W. R. Ueltzen, Chloe Durham, and Mae Henzig. Defendant, Emma Cash, is a daughter of R. R. Ueltzen by a former marriage.

This family lived on the property until about 1913 or 1914, when R. R. Ueltzen sold all his personal property and moved to Oklahoma with his family. What happened to the property from then until Maude Roe took possession and raised her family there is not clear. R. R. Ueltzen died, seized and possessed of this land about 1925 or 1926; and his wife, Laura, continued to live in Oklahoma. In 1929 this property went delinquent and was sold for nonpayment of real estate taxes. At this time, plaintiffs and their mother were living on 'Grant Farm' on Highway 64 east of Mulberry. During the time the property was in possession of persons under the tax forfeiture, all improvements were destroyed.

On April 3, 1934, Maude Roe obtained a Redemption Deed from the State of Arkansas to this property and apparently went into possession. Here the testimony is in conflict. Plaintiffs testified that Mrs. Roe contacted her mother, Laura, and her brothers and sisters in Oklahoma, requesting them to contribute to the amount of money necessary to redeem the land; but they refused and agreed with their mother, Maude Roe, that if she would redeem the property herself, she could have it as her own property. To corroborate this testimony, Amos Watkins testified that he was an old friend of the family and about two or three years ago he met Billy Roe and R. T. Ueltzen at the store at Graphic and in the conversation asked R. T. Ueltzen what had happened to the old home place, and he stated to him (Watkins) that he and his brothers and sisters had given the property to their sister, Maude Roe. This is denied by the defendant, R. T. Ueltzen, and by Mae Henzig, who testified that they had not given the property to Maude Roe, but had agreed that Mrs. Roe put up the money and redeem the property in lieu of rent.

Laura Ueltzen died intestate in Oklahoma about 1936 or 1937.

Maude Roe and her husband, shortly after 1934, moved into an old log cabin on the place, daubed the cracks with clay, and raised their family there.

Between 1934 and 1940, plaintiffs' father built a log share cropper's house some distance west of the log cabin where they lived. Plaintiff Sowl later lived in this house.

About 1942, plaintiffs and their parents built a frame farm home upon this land, which was still farther west of the old log home and on the county road. They also built a barn.

From April 1934 to about 1947, the year plaintiffs' father died, the Roes had cut from this land all merchantable timber, farmed the land for their living, keeping and using all benefits from the land.

About 1947, plaintiff Billy Roe built a two-room home on the land in controversy.

Plaintiffs testified, and the defendants did not deny, that they visited from time to time in all of these homes, spent nights there, and knew of the making of all improvements to which they did not contribute anything or claim any benefits from the farm.

On June 15, 1956, plaintiffs' mother, Maude Roe, executed and delivered to Billy Roe and Neva Roe Sowl a warranty deed to all of said property, which deed was duly recorded shortly thereafter. About two years later, Maude Roe died, intestate.

In the latter part of 1957, Billy Roe constructed a new frame farm home on the land, where he now lives.

Plaintiffs' mother, Maude Roe, paid all taxes upon the land in controversy for the years 1933 to 1955, inclusive, and plaintiffs have paid the taxes for the years 1956 through 1964.

Plaintiffs and defendants are tenants in common. Plaintiffs claim title to the entire tract by adverse possession. It must be remembered at the outset that the possession of one tenant in common is the possession of all tenants. Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S.W.2d 65; Ashley v. Garrett, 218 Ark. 126, 234 S.W.2d 513; Woolfolk v. McDonnell (Co.), 215 Ark. 34, 219 S.W.2d 223; Gibbs v. Pace, 207 Ark. 199, 179 S.W.2d 690. And, further, in view of the family relation stronger evidence of adverse possession is required than in the case where no such relation exists. McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714; Staggs v. Story, 220 Ark. 823, 250 S.W.2d 125; Baxter v. Young, 229 Ark. 1035, 320 S.W.2d 640.

It is also well established that in order for the possession of a tenant in common to be adverse it is incumbent upon him to bring home to his cotenants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. McGuire v. Wallis, supra; Hildreth v. Hildreth, 210 Ark. 342, 196 S.W.2d 353; Smith v. Kappler, 220 Ark. 10, 245 S.W.2d 809.

The court is faced with a difficult problem indeed. For as the court said in Linebarger v. Late, 214 Ark. 278, at p. 282, 216 S.W.2d 56:

'Where property is held in joint tenancy, the possession of one is deemed to be conjunctive with others, hence there is mutuality of seizin; and this status presumptively continues until some affirmative act by the joint tenant who holds for all is of such a nature as to warn other proprietors that the status has shifted from mutuality to hostility. This may be done in so many ways that judges and text writers have not undertaken an enumeration. What in one case would be sufficient as a warning might not be enough in another. Relationship of the parties, their reasonable access to the property and opportunity or necessity for dealing with it, their right to rely upon conduct and assurances of the tenant in possession, kinship, business transactions directly or incidentally touching the primary subject matter, silence when one should have spoken, natural inferences arising from indifference--these and other means of conveying or concealing intent may be important in a particular case, but not controlling in another; for after all what a designated plaintiff or defendant had in mind when he or she consummated an act or engaged in a course of conduct often depends upon the personal equation and the individual's method of expression. There can, therefore, be no 'open and shut' rule by which purpose can be measured.'

In order to arrive at a correct solution, it is necessary to look at the evidence as a whole using as a yardstick the rules above set forth.

In the cited case of Linebarger v. Late, decided in 1948, the court took judicial knowledge that 1930 and the years immediately following were periods of economic stress when property values generally were adversely affected. The testimony that Maude Roe tried unsuccessfully to get her mother, brothers, and sisters to contribute to the fund necessary to redeem this land, coupled with the testimony of Amos Watkins to the effect that R. T. Ueltzen told him that he and his brothers and sisters had given the old home place to Maude Roe, compels the court to consider this as a circumstance in the chain of events creating a natural inference of indifference on their part. In 1934 money was scarce and it is unbelievable that Maude Roe would have raised the money alone to redeem this land for the meager future rent from a farm unimproved and at a time when there was no market for products from the operation of such a farm.

The tax deed was recorded. It is fair to say that the defendants knew of the execution and recording of this deed. To establish adverse possession against his cotenants the plaintiffs have the burden of proving either that they brought notice home to them or that their conduct was so open and unequivocal that they should have known of the hostile claim. There is no testimony that the plaintiff did in so many words say to the defendants, 'We are claiming this land as our own,' but the rule is in the conjunctive. So far, learned counsel for the parties have failed in their excellent briefs to cite a decision or text that defines 'Such acts or conduct so unequivocal and notorious in character that notice will be presumed,' and the court has found none. Possession alone is insufficient. Payment of taxes, while strong evidence of a claim of title, it alone is insufficient. So, as said before, the evidence as a whole must be examined and each case stands on its own bottom.

Significant in this case, Maude Roe, in 1956, executed a warranty deed to all of the land to plaintiffs, which deed was duly recorded. Up to this time fairly substantial improvements had been made on the land and after this deed, and more than seven years before the commencement of this action, Billy Roe built his own substantial frame home upon this property. The defendants visited in this home and the other homes and knew of these improvements. * * *

After the entry of Billy Roe under the deed from his mother and...