Wilson v. Storthz

• Decision Date: 22 March 1915
• Docket Number: 271
• Citation: 175 S.W. 45,117 Ark. 418
• Parties: WILSON v. STORTHZ
• Court: Arkansas Supreme Court

175 S.W. 45

117 Ark. 418

WILSON v. STORTHZ

No. 271

Supreme Court of Arkansas

March 22, 1915

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Charles C. Reid, Ashley Cockrill and H. M. Armistead, for appellant.

The burden was upon appellees to prove adverse possession commencing with all of its elements on or before August 1 1904, and continuing with all of its elements for seven years. 80 Ark. 19; 65 Ark. 426; 42 N.E. 431; 46 So. 635; 84 N.E. 893; 107 Ark. 374.

The only attempt at proof of notoriety, Storthz' testimony that he told Harp at the time he purchased from Williams and Crusoe, that he was the sole owner, was inadmissible. 77 Ark 309. There must have been actual notice to the other owners of such a declaration. 87 Ark. 496; 57 S.E. 769.

Attornment of occupiers to one co-owner will not start the statute. 30 S.W. 817; 49 Cal. 241; 29 P. 635; 92 Ark. 139. The suits filed by the women could not accomplish an ouster of the co-heirs. An ouster must be by taking possession.

The possession of Storthz can not be made to relate back to the date of the filing- of those suits and thus become the adverse possession of the two women, because he held under deeds to undivided interests, and claimed that there were many co-heirs of the two women who were also owners. The co-heirs were not bound to take notice of the suits or the deeds. There must have been "actual notice, or notorious acts of an unequivocal character." 99 Ark. 451; 109 Ark. 281; 55 Ark. 109; 69 Ark. 95; 80 Ark. 444; 77 Ark. 201; 90 Ark. 149; 102 Ark. 611; 99 Ark. 84.

A deed to an undivided interest will not be color of title so as to support constructive possession. 73 A. 1025; 55 Ark. 109; 88 Ark. 318; 121 S.W. 552; 11 S.W. 779; 110 Ill. 609.

W. T. Tucker, for appellee Storthz.

1. The law does not require the occupying tenant to give notice of his exclusive claim to all others who were or might be interested in the title. Williams and Crusoe in this case took possession in 1900, as owners to the exclusion of all others, and denying that there were any other heirs. The record affirmatively shows that there was never a time when the alleged cotenancy of the appellant and his grantors was recognized or ever known. 57 Ark. 110; '20 Ark. 359, 374; 20 Ark. 557; Id. 508, 516; 33 Ark. 151; 154 S.W. 230; 102 Ark. 611, 615: 149 S.W. 218.

2. Appellant should not recover because his grantors had no inheritable blood, or at least none proved. It is proved that they were slave negroes born before the Civil War, and there is no proof that such negroes have any inheritable blood in North Carolina. 234 U.S. 615; 11 La.Ann. 232; 23 Miss. 170; 35 Fla. 39; 48 Am. St. 238; 6 Am. Dig. 2026; 98 N.C. 31; 49 La.Ann. 625; 183 Mass. 448.

Coleman & Lewis and Miles & Wade, for appellee Miles.

1. On the question of adverse possession, the presumptions are in favor of the findings of the chancellor, on appeal, and his findings will not be disturbed unless clearly contrary to the preponderance of the evidence. 95 Ark. 482; 73 Ark. 489.

It is apparent from the evidence that appellees and their grantor's, through their tenants were in actual and visible possession of the property for more than seven years. It was not necessary that appellees should have been in personal occupation of the land. Possession by a tenant inures to the benefit of the claimant of ownership and satisfies the condition of the statute. 1 Ruling Case Law, § 42, and cases cited in note 18; 1 Cyc. 983; 75 Ark. 395. The law of attornment does not support appellant's contentions. 80 Ark. 435; 92 Ark. 35.

Appellant's grantors were ousted prior to August 1, 1904, and adverse possession began to run in favor of appellees and their grantors. 1 Ruling Case Law, § 43, and cases cited; 68 Mo. 164; 53 Neb. 156; 27 Neb. 47; 77 Ark. 201. Actual notice to a cotenant out of possession is not necessary to start the statute to running. 102 Ark. 611; 90 Ark. 149; 69 Ark. 562.

Williams and Crusoe went into possession adverse to appellant's grantors, and never recognized them as co-tenants. This amounted to a disseizin and started the statute of limitation. 67 Am. Dec. 733. The execution of deeds by them to Storkhz amounted to an ouster, and he went into exclusive possession under adverse claim. 50 Ark. 152; 154 S.W. 230; 149 S.W. 218; 102 Ark. 611.

2. There is no merit in the contention that there is no privity or continuity of claim as to appellee Miles, and that there can be no tacking of successive possessions. The right to tack possessions under the circumstances shown by the record is well established. 86 Ark. 460; 67 Ark. 93; 98 Ark. 30; 106 Ark. 9; 97 Ark. 369; 71 Mo. 524; Wood on Limitations, §§ 271-2. See, also, 14 Pa.St. 297; 24 Col. 252; 6 Watts (Pa.) 377; 101 Mo. 484; 67 Ark. 84; 97 Ark. 369; 1 Cyc. 1006, § 4.

3. If plaintiff is to recover anything, he should not, under the evidence, be permitted to recover the proportion awarded him by the chancellor.

4. The will gave the property to Ann Crusoe and Rosa Williams, and the chancellor should have so found. All the facts and circumstances surrounding the testa-for at the time she executed the will, as well as the testimony of Doctor Bentley and Evelyn West, go to show that she had only Ann and Rosa in mind and intended them to have the real estate. 49 Me. 288; 81 Ark. 235; 102 Ia. 322; Page on Wills, §§ 365 and 514; Wigram on Wills, 263.

5. Grantors of appellant are illegitimate residents of North Carolina, and are not heirs of Tabitha Smith in Arkansas.

The act of February 6, 1967, does not benefit appellant because that law was enacted for negro citizens of Arkansas, and not for non-residents, and appellant does not establish facts sufficient to bring his grantors within the law if it had any application to them. See cases cited in Storthz brief, also 28 Ky. 460; 112 Ill. 234; 34 Pa.St. 126; 98 N.C. 31.

C. C. Reid and Cockrill & Armistead, for Wilson, on cross-appeal.

1. The will is not ambiguous and there was no necessity to resort to extraneous evidence in order to arrive at the testator's intention. The testimony of Doctor Bentley and Evelyn West was not admissible. 90 Ark. 154. The use of the word "heirs" in a will means all his heirs who would take according to the statute, and can not be limited by construction to particular heirs. 87 N.W. 564; 40 Cyc. 1459; Id. 1389; Id. 1412; 119 Ind. 254; 4 Ind. 519; 29 Gratton 9; 225 Pa.St. 574.

2. There is nothing in the record to warrant the conclusion that appellant's grantors are illegitimate; but their right to inherit is set at rest by this court's construction of the Acts of 1866 and 1867, and of Kirby's Dig., § 2638. 38 Ark. 487.

OPINION

SMITH, J.

Tabitha Smith, a negro woman, died February 17, 1900, owning the lot situated at the corner of Ninth and Louisiana streets in the city of Little Rock, which constitutes the subject-matter of this lawsuit. There were three houses on the lot at the time of her death; she lived in one of them and rented the other two. She made a will on February 16, under which she gave to a niece certain personal property and devised her real estate, which consisted of the lot in controversy, to her heirs, with directions that the real estate be sold if the heirs did not agree, and that the proceeds of the sale be divided among them.

Tabitha's companion and close friend, one Evelyn West, was named as executrix, and qualified as such and collected the rents until June 20, 1901, when she resigned, and one Joshua A. Harp, qualified as administrator, and collected the rents. He filed a final settlement April 3, 1902, but collected rents after his discharge as administrator.

Tabitha Smith was born a slave in North Carolina and was brought to Pulaski County two years before the war, and thereafter resided in said county until her death. A niece of Tabitha's, named Ann Crusoe, was brought to this State at the same time. In 1891, Tabitha returned to North Carolina to visit her relatives, and on her return brought back with her a grand-niece named Rosa Williams. Neither Ann Crusoe nor Rosa Williams was living with Tabitha at the time of her death, but they were soon advised of that fact and appeared on the scene as claimants of the entire estate as sole heirs, and as sole devisees under the will. Tabitha's relatives back in North Carolina were never advised of her death until 1910.

On July 24, 1903, Ann Crusoe conveyed "all my undivided interest" in the above-mentioned lot for the consideration of a thousand dollars to appellee Storthz, and on July 7, 1903, Storthz obtained a deed from Rosa Williams conveying" all my undivided interest" for the consideration of $ 300. In the meantime Harp had made final settlement of his administration and had been ordered to pay over, and had paid over, to Ann Crusoe and Rosa Williams the balance of rents in his hands. This payment was made to them upon the supposition that they were the only heirs of Tabitha Smith. Harp continued to collect rents after his discharge as administrator for the account of Ann and Rosa until Storthz's purchase, at which time he accounted to Storthz for the balance in his hands, and Parker & Ewing, rental agents, were given charge of the property and the tenants in possession were notified to thereafter pay rent to Parker & Ewing, and the rents were so paid.

On December 19, 1903, Ann Crusoe and Rosa Williams filed suits in the Pulaski chancery court against Storthz for the cancellation of their conveyances, and against Harp for an accounting for the rents. They alleged that Storthz had obtained deeds from them through fraud. On June 15, 1906, Ann Crusoe took a nonsuit, but she refiled the case and prosecuted it to a final decree. Both suits reached this court...