Wilson v. McDaniel

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT
• Citation: Wilson v. McDaniel, 465 S.W.2d 100, 250 Ark. 316 (Ark. 1971)
• Decision Date: 29 March 1971
• Docket Number: No. 5--5479,5--5479
• Parties: Burniss Shaw WILSON et al., Appellants, v. J. F. McDANIEL et al., Appellees.

Page 100

465 S.W.2d 100

250 Ark. 316

Burniss Shaw WILSON et al., Appellants, v. J. F. McDANIEL et al., Appellees.

No. 5--5479.

Supreme Court of Arkansas.

March 29, 1971.

Rehearing Denied April 26, 1971.

Tompkins, McKenzie & McRae, Prescott, for appellants.

McKay, Chandler & Choate, Magnolia, for appellees.

HOLT, Justice.

Appellants instituted suit to establish their claimed interest in, and for partition of, the 40-acre tract of land here in issue. The present appeal is a sequel to Wilson v. McDaniel, 449 S.W.2d 944 (Ark. Jan. 26, 1970) wherein the pertinent facts of this extended litigation are comprehensively detailed. There we reversed a summary judgment for appellees because several material issues of fact were unresolved. The case was remanded, and a trial on the merits resulted in a decree once again favorable to appellees. Hence this appeal.

The land in issue is part of a 240-acre tract owned by H. U. Hancock when he died intestate in 1905. Surviving him were his wife, Eunice, two sons, two daughters, and the five children of a predeceased daughter, Palestine Scott, as his heirs. The two sons, the two daughters, and two of the five Scott children (Henry and B. C.) conveyed to Eunice whatever interests they had in 80 acres which included the 40 acres now in litigation. The deed was dated November 18, 1905, but not recorded until 1930. Eunice died in 1907 and, by a will probated in 1908, devised 'all of (her) property' (without enumerating or in any way specifying what constituted that property) to J. H. Hancock, one of her sons, for life and then to his daughters, Myrtle and Bertha, to share and share alike and, at their deaths, to their children. Her will predated by several months the 1905 deed to her.

By an exchange of instruments in 1913, Bertha (who is still alive and without issue) received whatever interests J. H. and Myrtle had in the contested 40-acre tract which she conveyed the same year to A. S. Frazier through whom appellees now claim title by mesne conveyances. Appellees' predecessors in title entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Myrtle died in 1965, and her two daughters and a son and his wife, appellants herein, now claim an undivided 22/50 interest in fee in the 40 acres, exclusive of and B. C.) conveyed to Eunice whatever since three of the Scott children did not sign the deed. Also claimed is an undivided 22/50 interest as remaindermen of Bertha's life interest. (As previously indicated, she had conveyed her interest in 1913 to appellees' predecessors in title.)

The chancellor found that the 1905 deed purportedly conveying 22/25 interest in the lands to Eunice was not delivered during her lifetime and, therefore, was ineffective. He also found that appellees' predecessor in title, J. R. McDaniel, took possession of this 40 acres in 1913 and that he and his successors in title have had continuous possession with payment of taxes on the land from 1913 to date. Appellants' complaint was dismissed for want of equity, and title was quieted and confirmed in appellees. For reversal, appellants assert two contentions: (1) The chancellor's finding that the deed was not delivered is against the preponderance of the evidence; and (2) the statute of limitations in adverse possession does not run against remaindermen until the death of the life tenant.

Appellants argue that a presumption of delivery exists since the deed, duly executed and acknowledged, was properly recorded, and also since it was in the possession of Myrtle, a successor to the grantee's title. Smith v. Scarbrough, 61 Ark. 104, 32 S.W. 382 (1895). They further assert that this presumption of delivery of the deed is buttressed by other facts such as: The tax records reflect that the 1906 taxes on the purportedly conveyed 80 acres (which included this 40 acres) were assessed to and paid by Eunice; she continued to live on this land with her grandchildren, Myrtle and Bertha, until her death in 1907; her son, J. H. Hancock and his two children, Myrtle and Bertha, continued to live on the land until approximately 1913; the taxes for 1907 through 1911 were assessed to and paid by J. H. Hancock; the 1912 taxes were paid in 1913 by Bertha and her husband; a suit for partition instituted in 1908 by the heirs of H. U. Hancock did not include contestation of those 80 acres, but was restricted to the remaining 160 acres of H. U.'s original 240-acre tract; the exchange of deeds in 1913 between Myrtle and Bertha dividing the lands and Bertha's conveyance of her interest in 1913 to her uncle, A. S. Frazier, who in the same year conveyed his interest to appellees' predecessor in title; in an action brought in 1914 by the five Scott children involving this property, J. H. Hancock and Bertha claimed title under the 1905 will and deed, which were exhibits in that...