Washington v. Washington

• Decision Date: 30 January 2013
• Docket Number: No. CA 12–325.,CA 12–325.
• Citation: 2013 Ark. App. 54,425 S.W.3d 858
• Parties: Charles D. WASHINGTON and Shirley Washington, Appellants v. Andrew WASHINGTON et al., Appellees.
• Court: Arkansas Court of Appeals

2013 Ark. App. 54

425 S.W.3d 858

Charles D. WASHINGTON and Shirley Washington, Appellants

v.Andrew WASHINGTON et al., Appellees.

No. CA 12–325.

Court of Appeals of Arkansas.

Jan. 30, 2013.

Wilber Law Firm, by: Norman C. Wilber, Mountain Home, for appellants.

Jeremy B. Lowrey and L. Gray Dellinger, Melbourne, for appellees.

LARRY D. VAUGHT, Judge.

This is the second time that appellants Shirley and Charles Washington have appealed from a decree of partition entered by the Izard County Circuit Court. We dismissed the first appeal for lack of a final order. Washington v. Washington, 2010 Ark. App. 16, 2010 WL 58909. This appeal challenges the circuit court's findings as to the validity of a deed, whether there had been adverse possession of the property, and whether the doctrines of laches, waiver, and estoppel applied, as well as the court's ruling on a hearsay objection. We affirm.

This is a dispute over the ownership of 360 acres located in Izard County. Charles Washington and appellees Andrew Washington, Alice Dockins, Joe Washington, Georgia Washington Norris, and George Washington Jr. are siblings. Their parents, Annie and George Washington Sr., conveyed the property to Charles in February 1959, and, in return, Charles conveyed the property back to his parents in April 1959. The deed to Charles was recorded on April 16, 1959. The deed from Charles back to his parents was dated April 17, 1959. The deed was given to Georgia Norris in 1973, some two years before the father's death, but the deed was not recorded until 2003, after the deaths of both parents.

On September 18, 2007, appellees filed suit seeking to partition 360 acres of land located in Izard County.¹ In their response and counterclaim for quiet title, appellants asserted that Charles held record title to the property. In the alternative, appellants contended that they had acquired the property by adverse possession. Appellants also sought to set aside the deed back from Charles to his parents on the basis that the deed was only intended as security for Charles's agreement to take care of his siblings. Further, in the event that the court ruled in favor of partition, appellants sought compensation for the taxes they paid and for improvements they made to the property.

After a hearing, the circuit court issued a letter opinion dated December 2, 2008. The court rejected the claim that the property was conveyed to Charles in exchange for his taking care of his siblings, finding that the only thing Charles had done toward that end was to facilitate a loan for one of his siblings. The court further found that although Charles had paid real-estate taxes, there was a presumption that such payments were for the benefit of all the tenants, his siblings. Accordingly, the court ruled that the parties owned the property as tenants in common and orderedthe property to be sold at public auction. The parties were to divide the proceeds of the sale according to their respective interests and Charles was to “recover his pro rata part of the taxes he has paid over the years and any other provable amounts.” The court's written order incorporating its findings was entered on January 7, 2009.² The circuit court subsequently entered an order specifying that Charles was to receive approximately $42,000 for property taxes and other expenses on the properly.

On November 30, 2011, the circuit court entered a “Final Order” that included a Rule 54(b) certificate. A “Nunc Pro Tunc Order” was entered on December 28, 2011, identical to the earlier “Final Order.” This appeal followed.

For reversal, appellants argue that the circuit court erred by (1) determining that the deed back from Charles to his parents was a valid conveyance with the immediate intent to deliver the property; (2) denying appellants' claim for adverse possession; (3) failing to find that appellees' claims were barred by laches, waiver, or estoppel; and (4) allowing appellees to testify as to hearsay statements made by their parents concerning the parents' intent regarding the deeds to and from Charles.

The standard of review on appeal from a bench trial is whether the circuit court's findings were clearly erroneous or clearly against the preponderance of the evidence. McNeely v. Bone, 287 Ark. 339, 698 S.W.2d 512 (1985). Disputed facts and determinations of credibility are within the province of the fact-finder. Jaramillo v. Adams, 100 Ark.App. 335, 268 S.W.3d 351 (2007). A circuit court's conclusions of law, however, are given no deference on appeal. Id. at 341, 268 S.W.3d at 356.

Appellants' first point is that the circuit court erred in finding that the deed back from Charles to his parents was valid. They contend that there was no delivery of the deed because neither Charles nor his parents intended to immediately vest title in the parents. Instead, they assert that the deed from Charles to his parents was merely intended as security for Charles's agreement to take care of his siblings. In support of this contention, appellants rely on testimony of Charles and Georgia Norris that their father directed the deed not be recorded as long as Charles took care of his siblings. There was also testimony that the father carried the deed with him in his overalls until he gave it to Norris in 1973.

Possession of a deed by the grantee is prima facie evidence of its delivery. Harvey v. Ledbetter, 219 Ark. 27, 240 S.W.2d 18 (1951). Only clear and convincing evidence can overcome that presumption. Id. at 34, 240 S.W.2d at 21. The fact that the parents never recorded the deed is not dispositive because, as between the parties to the deed, a delivered deed passes title even though the deed is not recorded. Barker v. Nelson, 306 Ark. 204, 812 S.W.2d 477 (1991); Williams v. Kitchell, 212 Ark. 114, 204 S.W.2d 873 (1947). Here, there was a manual delivery of the deed to the parents, raising a presumption of delivery. Even if Charles and his parents had an agreement that the deed would not be recorded as long as Charles took care of his siblings, it would not prevent the passage of title because the deed was a present conveyance. Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954); Lindsey v.Christian, 222 Ark. 169, 257 S.W.2d 935 (1953). The deed from Charles to his parents does not contain any conditions or mention any agreement not to record the deed. Moreover, Joseph Washington denied that there was any conversation during a family meeting in February 1959 concerning whether Charles would get the property in exchange for taking care of the siblings; instead, he explained that the property was conveyed in order for the parents to obtain welfare benefits.³

Whether a deed has been delivered is generally a question of fact involving intentions manifested by acts or words. First Sec. Bank v. Geels, 2011 Ark. App. 294, 383 S.W.3d 437. The circuit court heard testimony from multiple witnesses and had full opportunity to observe the witnesses and evaluate their credibility. The court found that the evidence preponderated in favor of the appellees, stating in its letter opinion that Charles “never did anything for his siblings for a forty year period other than facilitate the borrowing of $500.00 from the bank for a sister (which was repaid).” Under these circumstances, we cannot say that the court's findings were clearly erroneous.

For their second point, appellants argue that the circuit court erred in not finding that they own the property by adverse possession. The circuit court found that Charles's actions fell far short of establishing title by adverse possession.

In order to prove ownership of land by adverse possession, the party claiming possession must show continuous possession of the property for seven years. Robertson v. Lees, 87 Ark.App. 172, 183, 189 S.W.3d 463, 471 (2004). In addition, that possession must be actual, open, notorious, continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner.⁴Id. at 184, 189 S.W.3d at 471. Also, because the use of land by family members is presumed to be permissive, stronger evidence of adverse possession is required in cases involving family. Id. at 184, 189 S.W.3d at 471. If the original use and possession of the land is permissive, it cannot become adverse until notice of the hostility of the possessor's holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice; the evidence of adverse holding when the original entry is by permission must be very clear. Rickett v. O'Dell, 86 Ark.App. 86, 91, 160 S.W.3d 717, 720 (2004).

After Charles executed the deed back to his parents, his continued possession of the property was presumed to be subordinate to the legal title held by his grantee because he is estopped by his deed from claiming that his holding is adverse. Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947); Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939). It is true that this presumption fades away with the lapse of time where his occupancy is unexplained. Davis, 197 Ark. at 971, 125 S.W.2d at 791–92. Here, the occupancy is explained by Charles's claim that he retained title because of an alleged agreement between Charles and his parents that he would take care of his siblings.

Appellants contend that notice of Charles's adverse claim was given shortly after the property was conveyed to Charles in the form of a letter written by Georgia Norris in March 1963, asking her father if the property was still in Charles's name and advising her father that Charles was attempting to sell the property. While the letter does mention Charles trying to sell the property, the letter is more of Norris informing her father that someone was inquiring about the timber on the property and asking her father to consider selling the timber and use the money to improve the property. Moreover, in his testimony, Charles did not...