Barr v. Eason

John I. Purtle, Justice. This is an appeal from a decree holding that the appellee was the owner of the surface rights of land in the S Vi of the SE Vi of Section 6, Township 20 South, Range 27 West, Miller County, Arkansas, containing 80 acres more or less. The decree also held that the appellee was the owner of his intestate share of the mineral rights in the NW Vi of the NE Vi and the NE Vi of the NW Vi of Section 7, Township 20 South, Range 27 West, Miller County, Arkansas, containing 80 acres more or less. On appeal the appellants argue that the court erred in vesting title to the surface rights of the Section 6 lands and the mineral rights in the Section 7 lands in the appellee. We agree with the appellants’ first point. However, we disagree with the appellants’ argument as to the ownership of the mineral interests in the Section 7 lands. Parts of Sections 6 and 7 were once owned by S.S. Eason who died intestate prior to 1959. Since his death his heirs have been unable to agree as to the ownership of the surface and mineral rights of the land. The decedent was the father of 15 children. His first wife, Louella, bore him nine children (the “first family”), and he had six children by his second wife, Clementine (the “second family”). Prior to his death S.S. Eason deeded the lands in Section 7 to Clementine. A dispute between the first and second Eason families culminated in chancery court actions during 1944 and 1945. Decrees were entered granting all 15 children an equal interest in the mineral rights to the lands in both Sections 6 and 7. No appeal was taken from the final decree. One area of contention between the two families concerns the ownership of the surface rights of the lands in Section 6. From the record we find that these lands were forfeited for the 1959 taxes and were sold to H.M. Mclver on November 20, 1962. Mclver was a stranger to title prior to the tax purchase. The property was conveyed by quit claim deed from Mclver and his wife to John Edward Eason on January 18,1963. The grantee was the son of S.S. Eason and the father of Albert W. Eason, the appellee herein. The appellee’s father deeded the property to the appellee on January 19,1963. There was no monetary consideration for this transfer. However, the appellee testified that he gave his father the money to redeem the property from Mclver. We first consider the chancellor’s ruling concerning the mineral rights to the Section 7 property. This point merits little discussion. The final decree adjudicating the mineral rights was filed on December 12, 1945. The decree determined that all 15 children of S.S. Eason owned an equal interest in the mineral rights of the lands in Sections 6 and 7. There is no evidence that any of the heirs have acquired title to the mineral interests except through inheritance from S.S. Eason. The appellee’s father was one of the 15 children of S.S. Eason. We do not disturb the trial court’s determination that the appellee owns his pro rata share of the mineral interests to the lands in Sections 6 and 7, since this finding was not against the preponderance of the evidence. We next consider the ownership of the surface rights of Section 6. There is no dispute that the appellee’s father was a cotenant with the other children of S.S. Eason. Neither is it disputed that Mclver was a stranger to the title when he purchased the land at the tax sale. Less than two months after purchase at the tax sale, Mclver deeded the land to the appellee’s father. The testimony reveals that appellee’s father deeded the property to the appellee on January 19,1963, one day after John Edward Eason received the deed from the Mclvers. The appellee claimed the surface rights to the Section 6 property by both deed and adverse possession. We first discuss the claim under the tax deed. The general rule is that a person who is in possession and receiving benefits from the property cannot acquire title by permitting the property to sell for taxes and then buying it at a tax sale. Zimmerman v. Franklin County Bank, 194 Ark. 554, 105 S.W.2d 1074 (1937). In this case of Smith v. Smith, 210 Ark. 251, 195 S.W.2d 45 (1946), we considered a similar situation. In the Smith case this Court considered the rights of the decedent, his son and grandson. The decedent, D.L. Smith, died in 1931. Several children survived. The eighty acres of land owned by D.L. Smith at the time of his death was forfeited for the 1932 taxes. The land was subsequently redeemed by Laura B. Smith, the wife of Benton Smith, a son of the decedent. In 1945 litigation concerning the title to the property arose among the children and grandchildren of the decedent. In Smith this Court, discussing the rights of the children of decedent Smith and the redemption of the land at the tax sale, stated: We think however, that in the case at bar Benton, Laura, and G.L. Smith, were too intimately identified with the D.L. Smith estate to make personal purchases in the manner shown. Redemption by one tenant in common or one of several cotenants inures to the benefit of all, in the absence of special circumstances or waiver. Effect of Spikes v. Beloate, 206 Ark. 344, 175 S.W.2d 579, is that a tenant in common cannot strengthen his interest by bidding in the entire property at a tax sale, or by purchasing it from a stranger who has bought at such sale. These acts amount to no more than redemption. This confers no right upon the purchaser except to justify a demand that contribution be made by other tenants. We next consider the appellant’s claim of adverse possession. This Court expounded on the rights of heirs and cotenants in a similar situation in the case of Zackery v. Warmack, 213 Ark. 808, 212 S.W.2d 706 (1948). The mother of Zackery died intestate in 1919. At the time of her death she owned the 40 acres of land. Her heirs were her son, John Zackery, the appellant, and his four siblings. The taxes for 1929 and 1930 became delinquent, and Zackery purchased the land at a tax sale. He paid taxes thereafter until 1945, the last year taxes were paid prior to the commencement of the suit. Warmack filed suit claiming ownership in the same land that Zackery claimed. Zackery filed an answer and cross-complaint wherein he claimed full title to the property based upon the tax deed and adverse possession. The trial court found the tax sale void but concluded that the deed operated as color of title. ■ This Court held that the redemption for the tax forfeiture inured to the benefit of all relatives and tenants in common. We affirmed the trial court’s holding permitting Zackery to retain proceeds of timber sales as reimbursement for taxes paid on the lands. The taxes in the Zackery case were paid in the name of the decedent from 1919 until 1929. After the purchase at the tax sale Zackery paid the taxes in his own name. The Zackery opinion went on to state: The reason that the possession of one tenant in common is prima facie the possession of all, and that the sole enjoyment of the rents and profits by him does not necessarily amount to a disseizin, is because his acts are susceptible of explanation consistently with the true title. In order, therefore, for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed. The appellee in the present case was never in actual physical possession of the land. There has never been any kind of fence, house or other structure on the section 6 land here in dispute. Appellee sold the timber in July of 1978 and later planted most of it in fingerling pine. The property was neither fenced or marked to indicate the boundaries. Appellee was in the armed forces when the deed between Mclver and his father was executed. He has lived out of state during the entire time in question. In a letter to Ruby Barr, dated August 27, 1983, appellee stated his father deeded the land to him “that the land might be more easily handled.” He further stated: “as the years went along and as I continued to pay taxes, and with all apparent opportunities to settle the dispute which has been going on now for around 50 years. . .. ” The letter never expressed the opinion that he was the sole owner of the property. (A new oil well had just been finished on or near some of the land formerly owned by S.S. Eason, appellee’s grandfather.) The appellee testified that he did not know if the other heirs knew that he claimed the property in his own name. He relies on the deed from his father as color of title. Even if the deed was color of title, it did not ripen into ownership by adverse possession. Ruby Barr is the only heir he claimed to have notified of his adverse claim. Appellee apparently had some clearing done at the time he had the young trees planted. There is no testimony that either the sale of the timber or the clearing was performed more than seven years prior to the suit. Nothing had been done previous to the sale of the timber that could be deemed notice to the other heirs that someone was claiming adversely to them. This case is factually quite similar to McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960). Wallis died in 1937 and was survived by a widow and eight adult children. Allie, one of the children, took possession of part of his father’s land and held it until his death in 1945. Thereafter Clovis Wallis, son of Allie, took possession and claimed it until suit was filed in 1948. Clovis had been in actual possession since his father’s death. The trial court found in favor of Clovis’ adverse claim and this Court reversed. The Court treated the grandson (Clovis) as a cotenant when it stated: “It must be remembered at the outset that the possession of one tenant in common is presumed to be the possession of all and, further, that in view of the family relation stronger evidence of adverse possession is required in this case than in one where no such relation exists.” The dissent relies on Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963) as controlling in this case. In Watkins a cotenant sold to a “stranger” (actually the son of the seller) who entered into exclusive possession under the deed. The lands were and continued to be fenced, with part in crops and part in pasture. This is not the case here, because the appellee did not enter into exclusive possession. Watkins is sound law, but has no application here. Since color of title and payment of taxes alone are insufficient to ripen into ownership by adverse possession, the appellee never acquired title adverse to the other heirs. Therefore, the trial court decree is reversed as to the section 6 land. The decree is affirmed as to the section 7 land. Affirmed in part, reversed in part and remanded. Holt, C.J., and Hays and Glaze, JJ., dissent.