Hopper v. Daniel

JOHN F. STROUD, Jr., Chief Judge. This appeal involves a quiet-tide action, with an alternative prayer for partition, that was brought by appellants John Henry Hopper and his wife Betty J. Hopper. John Hopper is a grandson of Augustus and Martha Hopper, who acquired tide to a combined total of 120 acres in Yell County, the property in question, in the 1800s. Appellant Hopper’s father, Lawrence, was one of seven children born to Augustus and Martha. In his action, appellant John Hopper contended that his father had adversely possessed the property from the time of Martha’s death in 1947 until his own death in 1975; that he, appellant Hopper, continued in adverse possession after acquiring the quitclaim deed from his father; and that, through tacking, there had been fifty years of adverse possession. Appellees are those heirs of Lawrence’s siblings from whom appellant John Hopper was not able to acquire quitclaim deeds covering their inherited interests in the property. Appellees’ interests in the property are divided as follows: 1/6 is held by “the Daniel heirs;” 1/6 by Larry Keys’ widow, Bertha Pearl Murray Keys; 1/6 by heirs who were never located but were served by publication; and 1/36 by heirs who were served with process but defaulted. The chancellor held that appellant Hopper had not sustained his burden of proving that he was entitled to the property in question under the doctrine of adverse possession. . Consequently, the chancellor ordered partition of the property. In addition, the chancellor limited his award of attorney’s fees for the work of appellants’ attorney on the partition action to $2,000. We affirm. In order to understand the issues involved in this case, we analyze it in historical context. Augustus Hopper died in 1902 and Martha Hopper died in 1947, having never remarried. Their seven children survived them, but one child subsequently died without children. Of the six remaining children of Augustus and Martha, five moved away from Yell County, with two remaining in Arkansas, and three moving to Oklahoma, New Mexico, and California. The only child of Augustus and Martha that remained on the farm in Yell County was appellant John Hopper’s father, Lawrence. Lawrence cared for Martha until her death in 1947, and he continued to live on the farm until his own death in 1975. Prior to his death, he executed a quitclaim deed covering the property in question to appellant John Hopper, his only surviving heir. He also left all of Iris property to appellant John Hopper by his will. In 1996, appellant John Hopper had the title to the 120 acres examined and discovered that his father never held record title to the property because he never acquired title from his parents, Augustus and Martha. The survivor of the two, Martha, who held record tide, died intestate. Accordingly, appellant began trying to acquire quitclaim deeds from those heirs of his father’s siblings that he could locate. As a result of those efforts, he acquired tide to a 34/72 interest in the 120 acres, and then brought the instant action against appellees. He now raises four points of appeal: 1) the court erred in excluding testimony about a lost letter, 2) the court erred in finding that the appellant must give “actual notice” to co-tenants in order to obtain title by adverse possession, 3) the court’s decision was against the preponderance of the evidence, and 4) the court abused its discretion when it only awarded appellant a $2,000 attorney’s fee. 1) The court erred in excluding testimony about a lost letter. The trial court sustained an objection to testimony by appellant John Hopper to the effect that shortly after his father died in 1975, he received a letter from Ed Daniel that suggested the land be appraised and sold and divided; that he never heard further from Mr. Daniel or any other member of the family; and that his refusal to comply with Daniel’s request supported his position that Ed Daniel had notice that he was holding the property adversely. Appellant testified that he gave the letter to his father’s attorney and never saw it again; that Ed Daniel is now deceased; and that some of Ed Daniels’s heirs are defendants [appellees] in this case. We find no error in the court’s refusal to allow the testimony. Appellant John Hopper’s recollection of the contents of the 1975 letter constituted hearsay evidence, which was properly excluded under Rule 802 of the Arkansas Rules of Evidence. Appellant contends that the original letter was either lost, destroyed, or not obtainable, and therefore should have been admissible pursuant to Ark. Rule Evid. 1004, which provides that an original is not required in certain circumstances. We disagree. First, appellant’s testimony did not establish that the original was lost or otherwise unobtainable, just that he gave it to his father’s lawyer and never saw it again. Second, subsection 4 of Rule 1004 provides that “The original is not required, and other evidence of the contents of a writing, ... is admissible if: ... [t]he writing, ... is not closely-related to a controlling issue.” Here, the presence or absence of notice to the other co-tenants was a controlling issue. The trial court did not err in excluding the testimony. 2) The court erred in finding that the appellant must give “actual notice” to co-tenants in order to obtain title by adverse possession. The third and fourth numbered paragraphs of the April 15, 1998, decree issued by the chancellor in this case provide: 3. The Court does not feel that the Plaintiff has sustained his burden of proof to show that he is entided to the subject property under the doctrine of adverse possession. It is undisputed that the Plaintiff, John Henry Hopper, is a co-tenant with the Defendants and case law is clear that when there is a family relation between co-tenants that a stronger evidence of adverse possession is required when a tenant in common attempts to turn his occupancy into adverse possession and he must show knowledge of the adverse claim or his intentions to so hold against the other co-tenants. I do not find that this has been done in the instant case. 4. It is undisputed that the Plaintiff owns property in his own right adjacent to the property he is claiming by adverse possession. As the Court recalls the Plaintiffs testimony was that he did not know the boundary line between the two farms and there was no evidence regarding the accounting prepared by the Plaintiff, regarding his income and profits on the farm, as to differentiate between the activities of the Plaintiff on his own farm and the property in question. The Court further finds no evidence of any actual notice that the Plaintiff gave to the Defendants and their predecessors in title which ivould merit the Plaintiff prevailing on his argument of adverse possession. Consequently, the Plaintiffs claim as to ownership of the subject property, under the doctrine of adverse possession, is denied and dismissed. (Emphasis added.) Appellants contend that the chancellor erred in finding that they were required to give “actual notice” to the other co-tenants in order to obtain title by adverse possession. We do not believe the chancellor so found. Although paragraphs two and three are perhaps inartfully written, we believe that when they are read together, it is clear that the chancellor did not base his decision solely on appellants’ failure to give actual notice to the other co-tenants. Rather, in the third paragraph, the chancellor explained that stronger evidence of adverse possession is required when there is a family relation among the co-tenants, and that “when a tenant in common attempts to turn his occupancy into adverse possession he must show knowledge of the adverse claim or his intentions to so hold against the other co-tenants.” (Emphasis added.) That is, we believe that the chancellor’s sentence in this regard can be interpreted to say that a co-tenant who is attempting to show that his occupancy of the property has changed to that of adverse possession must show either that the other co-tenants had actual knowledge of the adverse claim or that his intentions to so hold were sufficiently conveyed to the other co-tenants by his actions. The chancellor concluded the paragraph by stating that he did “not find that this has been done in the instant case.” Then, in the fourth paragraph, the chancellor finds in pertinent part that there was “no evidence of any actual notice that the Plaintiff gave to the Defendants and their predecessors in title which would merit the Plaintiff prevailing on his argument of adverse possession.” (Emphasis added.) In short, we find that the chancellor applied the proper law in making his determination as to whether appellants had established adverse possession of the property in question, and did not limit his determination solely to whether appellant had given “actual notice” of his claim of adverse possession to the other co-tenants. 3) The court’s decision was against the preponderance of the evidence. The possession of one tenant in common is the possession of all. Mitchell v. Hammons, 31 Ark. App. 180, 792 S.W.2d 333 (1990). A tenant in common is presumed to hold in recognition of the rights of his co-tenants. Id. It has been said that the presumption continues until an actual ouster is shown. Id. Since possession by a co-tenant is not ordinarily adverse to other co-tenants, each having an equal right to possession, a co-tenant must give actual notice to other co-tenants that his possession is adverse to their interests or commit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. Id. In order for the possession of one tenant in common to be adverse to that of his co-tenants, knowledge of his adverse claim must be brought home to him directly or by such notorious acts of an unequivocal character that notice may be presumed. Id. The statutory period of time for an adverse-possession claim does not begin to run until such knowledge has been brought home to the other co-tenants. Id. There is no hard and fast rule by which the sufficiency of an adverse claim may be determined; courts generally look to the totality of the circumstances and consider such factors as the relationship of the parties, their reasonable access to the property, kinship, and innumerable other factors to determine if nonpossessory co-tenants have been given sufficient warning that the status of a co-tenant in possession has shifted from mutuality to hostility. Id. When a tenant in common seeks to oust or dispossess the other tenants and turn his occupancy into adverse possession and thus acquire the entire estate by lapse of time under the statute of limitations, he must show when knowledge of such adverse claim or of his intention to so hold was brought home to them, for it is only from that time that his holding will be adverse. Id. When there is a family relation between co-tenants, stronger evidence of adverse possession is required. Id. In making their argument under this point, appellants rely upon the cases of Morgan v. Morgan, 15 Ark. App. 35, 688 S.W.2d 953 (1985), and Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967). They summarize the evidence in the instant case that they contend supports the factors set forth in Morgan and Ueltzen that may be considered in determining whether a person’s conduct constitutes sufficient notice that he or she is claiming property by adverse possession. However, as in Mitchell v. Hammons, 31 Ark. App. 180, 792 S.W.2d 333 (1990), and in Wood v. Wood, 51 Ark. App. 47, 908 S.W.2d 96 (1995), the facts of the instant case are distinguishable from Morgan and Ueltzen, supra, because, here, the out-of-possession co-tenants did not regularly visit the property in question, nor did they have actual knowledge of any improvements claimed by appellants. Moreover, appellant’s testimony that the property was assessed in his name does not satisfy the requirements of Mitchell or Woods, supra. The recordation of a quitclaim deed from his father would normally cause such a change of assessment because tax assessors do not purport to determine record title. Thereafter, the payment of taxes, sale of timber, appearance before a board of equalization to attempt a reduction in property taxes, or a lease of the land or minerals (short of a drilling title opinion prior to the drilling of a well) all routinely flow from the tax assessment and do not bring home to an out-of-state co-tenant knowledge of hostile acts. 4) The court abused its discretion when it only awarded appellant a $2,000 attorney’s fee. For their last point, appellants contend that the chancellor abused his discretion in limiting the attorney’s fee award to $2,000 because 43.75 hours “related solely to the partition part of this case [and] [m]ost of the time was related to trying to locate these heirs . . . [a]ll of whom were missing.” We find no abuse of discretion. Arkansas Code Annotated section 18-60-419 (1987), provides in pertinent part: (b) Where judgment is rendered by a court of this state for partition of realty in kind, or for the sale of realty and partition of the proceeds of the sale, the court in assessing a reasonable fee to be allowed the attorney bringing the action shall consider only those services performed by the attorney requesting a fee which are of common benefit to all parties. The court shall assess no fee for services which benefit only one (i) party, such as services necessary for the preparation and trial of contested issues of title or services for which payment has been made by the agreement of the parties. (Emphasis added.) In his letter opinion, the chancellor explained: An examination of the case in its entirety reflects that the [appellants] have at all times tried this case as a quiet tide case or, in the alternative have attempted to establish tide to the property in question through adverse possession, which would result in the property in question being vested totally in [appellants]. This would obviously be of no benefit to any of the other heirs in the case as they would receive nothing. In addition to the above explanation, we note that the time spent in searching for the missing heirs was as necessary for the quiet-title and adverse-possession actions as it was for the alternate prayer for partition. In short, our review of the record supports the chancellor’s assessment, and we do not find that the chancellor’s limitation of the award was arbitrary or groundless. Affirmed. Hart, Jennings, Robbins, and Neal, JJ., agree. Bird, J., dissents.