McCoy v. Anthony Land Co.

George Bose Smith, J. In 1957 the appellants obtained a decree quieting their title to an eighty-acre tract which we may describe merely as the west half of the northeast quarter. Neither the appellee nor its immediate predecessors in title were made parties to the suit, although they were the record owners of approximately the north 40.45 acres of the tract, their part being the north forty acres and the north fifteen feet of the south forty acres. A few months after the decree was entered the appellee filed its present complaint, asking that the decree be set aside insofar as it purported to affect the appellee’s land. After an extended hearing the chancellor granted the relief sought by the appellee. In contending for a reversal of the decree the appellants insist that they have acquired title to the entire eighty acres by adverse possession. Many years ago these eighty acres and other adjoining lands were owned by the McCoy (or McCorvey) family. In 1930, however, the lands were divided by a partition decree which may be regarded as the present litigants’ common source of title. With respect to the eighty acres now partly in question we need only say that (a) the north 40.45 acres, now claimed by the appellee, were allotted to the appellee’s predecessors in title, (&) 20.97 acres, lying south of the tract just mentioned, were allotted to Wood and Fur low, and (c) 7 acres, also lying south of the first mentioned tract, were allotted to Jeannie McCoy, the appellants’ mother. In 1941 Jeannie McCoy executed to the appellants a deed purporting to convey the entire eighty acres, though the grantor had record title only to the seven acres referred to in (c), above. In asserting title to the entire eighty acres the appellants make only two contentions, both involving adverse possession. First, it is said that the proof establishes actual possession by the appellants for more than seven years before the appellee’s complaint was filed. We think the weight of the evidence to.be rather clearly against this contention. According to the testimony of the appellee’s witnesses the 40.45-acre tract now in dispute has been wild and unimproved at least since Frank Anthony bought it in 1942. The various Anthony owners, engaged in the lumber business, have treated the tract as timberland, have marked their lines by painting trees along the boundaries, and have had the land inspected frequently. Their overseers state positively that the tract has been wild and unimproved through the years, unfenced and uncultivated. It is conceded that the Anthonys have paid the taxes every year since 1942. The appellants’ testimony falls decidedly short of rebutting the appellee’s proof. Several of the McCoys say that the family has been in continuous possession of the eighty acres since 1941, but this assertion merely reflects a state of mind unsupported by acts of physical dominion over the property. There is no indication of actual possession on their part except for statements that they cut timber anywhere on the eighty acres whenever they wanted to. The evidence does not show that the cutting of timber was ever so extensive or so continuous as to put the true owners on notice that the land was adversely occupied. Earle Imp. Co. v. Chatfield, 81 Ark. 296, 99 S. W. 84; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965. Upon a single occasion the Mc-Coys stopped the appellee’s logging operations on the 40.45 acres, but this happened only two years before the appellee filed this suit. Secondly, the evidence, which is similar to that adduced when the court quieted the appellants’ title in 1957, shows that the McCoys have had actual possession of the 20.97-acre parcel that was allotted to Wood and Furlow by the 1930 partition decree. See Wood v. McCoy, 228 Ark. 880, 311 S. W. 2d 755. From this proof it is argued that the actual possession of part of the eighty acres gave the appellants constructive possession of the whole, since the entire eighty was described in the deed they received from Jeannie McCoy in 1941. The rule that one’s actual possession is constructively extended to the limits of his color of title is not applicable here, for the 40.45-acre tract and the 20.97-acre tract were separately owned. The controlling distinction was well stated in Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703: “If A under a deed describing a tract of 80 acres of land owned by B, but not in his actual possession, enters and holds actual possession of a part, claiming the whole, his possession will be deemed to include the entire tract to the limits of the boundaries described in his deed; but if C owns 40 acres of the land, and A has no actual possession of any of that part owned by C, his actual possession of a part of B’s land will not draw to it the constructive possession of the tract owned by C, even though it be within the limits of the boundaries described in the deed.” The rule that governs when the tracts are separately owned is both practical and just, for otherwise the owner of wild land would be compelled to seek out and examine the color of title held by every newcomer taking possession of other land in the vicinity, lest the latter’s actual possession be constructively extended to destroy the former’s title. Affirmed. Holt, J., dissents.