Wheeler v. Foote

• Decision Date: 05 November 1906
• Citation: 97 S.W. 447
• Parties: WHEELER et al. v. FOOTE.
• Court: Arkansas Supreme Court

97 S.W. 447

WHEELER et al. v. FOOTE.

Supreme Court of Arkansas.

November 5, 1906.

Appeal from Ashley Chancery Court; Marcus L. Hawkins, Chancellor.

Action by Mrs. M. E. Foote against J. W. Wheeler and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. C. Norman and Jno. B. Jones, for appellants. Geo. W. Norman, for appellee.

McCULLOCH, J.

This case involves the title to 40 acres of land containing a valuable brake of cypress timber. Mrs. Foote, the appellee, first brought ejectment in the circuit court of Ashley county against appellants, but subsequently instituted suit in the chancery court to restrain appellants from cutting the timber, and the two actions were consolidated in the chancery court, where a decree was finally rendered in favor of appellee.

Both parties claim title to the land by limitations. Appellee claims title by actual adverse possession of a part of the tract under color of title to the whole; and appellant claims to have paid taxes under color of title for seven years in succession, the last three payments being since March 18, 1899. Only a small part of the land, about an acre and a half, has been fenced and cultivated or otherwise actually occupied. This small clearing was made about 15 years ago by one Bloomer, the owner of the adjoining tract, who cleared the land under a mistake as to the boundary. Appellee claimed the lands then under color of title, and as soon as Bloomer made the clearing she laid claim to it and he (Bloomer) conceded her right to possession. He continued in possession up to about the time of the commencement of this litigation, a period of more than seven years, under an agreement with appellee that he should occupy and cultivate the land in consideration that he would protect the timber from trespassers. He testified that he occupied it as the land of appellee and pursuant to that agreement with her. The small clearing was all of the tract which was susceptible of cultivation. The remainder was low and covered by the cypress brake. The facts, which are practically undisputed, are sufficient to make out appellee's title by adverse possession. Her occupancy of a part of the tract through her tenant, Bloomer, under color of title to the whole, gave her title to the whole. This amounted to an investiture of title by limitations, and the only remaining question is whether or not appellants and their grantors subsequently acquired title by the continuous payment of taxes for seven...