Kubard Cunningham et al. v. Ova Walker

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

KUBARD CUNNINGHAM, et al.

APPELLANTS

V.

OVA WALKER

APPELLEE

CA 00-533

FEBRUARY 7, 2001

APPEAL FROM THE ARKANSAS

COUNTY CHANCERY COURT,

NORTHERN DISTRICT

[NO. E98-89]

HONORABLE LAWRENCE D.

DAWSON, CHANCERY JUDGE

AFFIRMED

This case involves a dispute over the ownership of a tract of land. Appellants Kubard and Bertha Cunningham appeal the Arkansas County Chancery Court order that quieted title in a forty-acre tract in the respective fractional shares held by appellee Ova Walker, appellants, and other relatives as denoted in a stipulated list. It was appellants' position that they had acquired ownership of the subject property by possessing the lands adversely to the other co-tenants. After de novo review, we affirm the chancellor's decision because it is not clearly erroneous.

A recitation of the family tree and of relevant events is necessary to an understanding of this case. The common ancestor who owned the pertinent lands, Ms. Ollie Cunningham, acquired the forty acres by deed in 1934. Ollie died intestate on March 6, 1967, survived by

three of her six children. Those three were Olin Cunningham Montgomery, Monie Brown,and Kermit Cunningham. At Ollie's death, these three surviving children were each vested with a 1/3 interest in the land by the laws of descent and distribution, inasmuch as Ollie's three predeceased children had no issue surviving them. The three surviving children thereafter died, and their respective 1/3 interests descended to their heirs, as hereafter described.

Olin left five surviving children, one of whom is appellee Ova Walker. Monie was survived by no children, but a purported will devised her interest to her six nieces and nephews, two of whom were appellee Ova Walker and appellant Kubard Cunningham. Kermit died in 1983, leaving his wife, appellant Bertha Cunningham, and his son, appellant Kubard Cunningham.

It was undisputed that Kermit was the overseer and caretaker of the land before and following the death of Ollie Cunningham in 1967 and that Kubard took over that role after his father died in 1983. It was further undisputed that Kermit, his son Kubard, or his wife Bertha collected rents without sharing the income with the other co-tenants. Ova testified that, in 1963, her mother Olin confronted her uncle Kermit about his failure to share the rents or profits from the land, but not long thereafter Olin died and the issue was dropped. This confrontation, though, took place before Ollie's death in 1967, when the land still belonged to Ollie. There was no evidence that the forty-acre tract was subject to substantial improvement during the time of Kermit, Kubard, or Bertha's control or at any other time. It was generally unimproved land rented out for hunting, though about fifteen acres had been cleared.

The lands in question fell delinquent in tax payments, resulting in a tax sale to Harold Woodson in 1975. Though the records indicated that Woodson paid taxes on the land in 1972 and 1974, the records demonstrated that the taxes were otherwise unpaid but listed in Ollie Cunningham's name from 1960 through 1975. Woodson conveyed the land back to Ollie's son Kermit in 1976, and the following year, 1977, Kermit and his wife, appellant Bertha conveyed their interest to appellant Kubard. Thereafter, Kubard conveyed the land to Waymon Ball and Don Ball, also in 1977. Waymon and Don Ball assessed and paid taxes for the year 1977. The Balls conveyed the land by warranty deed to G. Perry Gray and Mary E. Gray in 1978. The Grays assessed and paid taxes for the years, 1978, 1979, and 1980. In 1981, the Grays conveyed the land back to Kermit Cunningham. Thus, record title to the land returned to one of the three surviving children of Ollie Cunningham by 1981. From 1981 through 1991, taxes were assessed in Kermit's name and paid by his wife Bertha. From 1992 through 1997, taxes were assessed in the names of Ova Walker and Monie Brown, though documents showed that Bertha paid the taxes in two of those years.

Appellee Ova Walker, a longtime resident of Chicago, Illinois, initiated suit in 1998 to quiet title in order to establish all the heirs' respective interests. Ova's desire was to sell her interest. All the interested parties were named as defendants in Ova's suit to quiet title, whether they were descendants or otherwise interested in the outcome.1 Kubard and BerthaCunningham responded that the court should find Kubard to be the sole owner of the lands subject only to his mother Bertha's 1/3 dower interest as Kermit's surviving spouse, because Kermit, Bertha, and Kubard had held the land adversely to the other co-tenants in excess of seven years. Appellants also asserted that appellee's claim should be barred by the doctrine of laches or by the statute of limitations. All parties stipulated during pendency of the action that if Kubard and his mother did not succeed on their adverse possession claim, then the parties' respective fractional interests as described in Ova's complaint were correct.

After a hearing, the chancellor determined that appellants had not acquired ownership by adverse possession as reflected in an order dated October 11, 1999. Therefore, the stipulated fractional interests were deemed to be accurate.2 This appeal resulted, and appellant asserts two points for reversal: (1) that the chancellor clearly erred in rejecting appellants' claim of adverse possession; and (2) that the chancellor clearly erred in finding that appellee was not barred by the statute of limitations found in Ark. Code Ann. § 16-56-105 or by the doctrine of laches. We reject both of appellants' arguments.

We review chancery cases de novo on the record, but we do not reverse factual findings made by a chancellor unless those findings are clearly erroneous or clearly againstthe preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). A finding is clearly erroneous when, though there is evidence in the record to support it, the appellate court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). In reviewing a chancery court's findings with regard to adverse possession, we give due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded their testimonies. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).

Adverse Possession-

Appellants argue first that the chancery court clearly erred in finding that they had not proved adverse possession. We disagree. The chancellor found that other than the payment of taxes over a period of years and a denial to Ova of any portion of the rental income, there was no other substantial evidence indicating that Kermit, Bertha, or Kubard did anything to put their co-tenants on notice that they were claiming this property by adverse possession. The chancellor determined that every action taken by Kermit, Bertha and Kubard was completely consistent with the obligation of a cotenant in possession, even considering that they kept the rental income. The acquisition of the land back from third parties after its conveyance in a tax sale was found to be a redemption for the benefit of all the co-tenants. These findings are borne out in Arkansas case law and are not clearly erroneous.

The general law on adverse possession has been oft-cited. In order for adverse possession to ripen into ownership, there must be possession for at least seven years that isactual, open, notorious, continuous, hostile, exclusive, and accompanied with an intent to hold against the true owner. See, e.g., Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). Possession that is so open, visible, and notorious as to give the owner constructive notice of an adverse claim need not be manifested in any particular manner; however, there must be such physical evidence thereof as reasonably to indicate to the owner, if he visits the premises and is a man of ordinary prudence, that a claim of ownership adverse to his is being asserted. See McLaughlin v. Sicard, 63 Ark. App. 212, 977 S.W.2d 1 (1998).

When there is a family relation between co-tenants, stronger evidence of adverse possession is required because 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 by such notorious acts of an unequivocal character so that their knowledge of his adverse claim 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. 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 whenknowledge 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. McLaughin v. Sicard, supra. 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 enumerable other factors to determine if nonpossessory co-tenants have been given sufficient warning that the status of a cotenant in possession has shifted from mutuality to hostility. Mitchell v. Hammons, supra.

Our courts have ordinarily held that to constitute adverse possession with reference to a cotenant, that no one or two specific acts, and sometimes even more, necessarily, of themselves amount to a disseisin, but the following are items to be considered in determining whether the possession is adverse, or the individual is estopped or guilty of laches and they include such acts as (1) possession of the property; (2) payment of taxes; (3) enjoyment of rents and profits; (4) making improvements (particularly of a substantial nature); (5) payments of insurance made payable to oneself; (6) holding possession of lands for a long period of time, such as 30 years; (7) treating property as one's own; (8) selling timber; (9) executing leases; (10) assessment of property in one's own name; (11) selling crops; (12) the execution, delivery, and recording of a deed by one cotenant which purports to convey the entire property; and (13) generally treating property as one's own. Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967).

A tenant in common cannot add to or strengthen his title by purchasing title to the property at a tax sale or by purchasing it from a stranger who has purchased at such tax sale. Johnson v. Johnson, 250 Ark. 457, 465 S.W.2d 309 (1971); Findley v. Tyler, 227 Ark. 663, 300 S.W.2d 598 (1957); Smith v. Smith, 210 Ark. 251, 195 S.W.2d 45 (1946); Holloway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945); Sanders v. Sanders, 145 Ark. 188, 224 S.W. 732 (1920). Such purchase by a tenant in common amounts to a redemption and confers no right except to demand contribution from the cotenant. See Holloway, supra.

We recognize through these case precedents that the chancellor was correct in his resolution in this case. Kermit's purchase from "strangers" in title that derived their title from a tax sale was nothing more than a redemption on behalf of all the co-tenants. Thereafter, Kermit, Bertha, and Kubard committed no acts of ouster that were so notorious as to give actual or constructive notice to the other co-tenants. Such evidence would have had to be more pronounced given the family relationship, and it is lacking in this case. The testimony of Ova supports this conclusion when she was asked about confronting her uncle Kermit about not sharing the rents and profits from the land. Ova testified that neither she nor her mother pursued a legal remedy against her uncle Kermit when he refused because "as long as he was taking care of the property and paying the taxes, we just let him continue to manage it." Apparently, the remainder of the other co-tenants, who also lived out of state, were content to allow Kermit, Bertha, and Kubard to manage this unimproved land in their absence. Given the stringent standards required of a cotenant to oust his co-tenants for purposes ofadverse possession, we cannot say that the chancellor clearly erred in his fact finding in this case. See Wood v. Wood, 51 Ark. App. 47, 908 S.W.2d 96 (1995).

Laches-

Appellants alternatively assert that the chancellor erred when he found that laches was not relevant as a defense. The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). Laches or estoppel does not arise merely by delay, but by delay that works a disadvantage to another. Ueltzen v. Roe, supra. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly within limits allowed by law. Id. But where one, knowing his rights, takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state if the right be enforced, delay becomes inequitable and operates to estop the asserted right. Id. This disadvantage may come from loss of evidence, change of title, intervention of equities, the making of substantial improvements to the land, and other causes, for where the court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. Id. Put in other terms, estoppel is merely the manner, in courts of equity, and sometimes even in courts of law, where when one party, or one group of parties sit idly by and do not speak when, in good conscience, they should speak, they will not later be heard to speak when they should in good conscience, remain silent. Id.

We acknowledge that our supreme court has stated that a trustee of a constructive trust is entitled to the benefit of the statute of limitations and the defense of laches as stated in Matthews v. Simmons, 49 Ark. 468, 5 S.W. 797 (1887). However, it was later held by our supreme court that mere lapse of time does not dissolve a cotenancy, and laches does not apply when occupants live on and improve lands while the co-tenants remain in silence. See Phillips v. Carter, 222 Ark. 724, 263 S.W.2d 80 (1953). Even more on point, in Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1951), the supreme court held that where a defendant was attempting to prove title by adverse possession in a quiet title action, he could not assert the defense of laches because until defendant's possession ripened into title, defendant had no title to lease or sell regarding oil rights. Therefore, there was no existing right to protect with this defense. This supports the chancellor's finding that this defense was not relevant.

Statute of Limitations for Obligations Not in Writing--

Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the right of entry by the one out of possession. Morgan v. Morgan, 15 Ark. App. 35, 688 S.W.2d 953 (1985). The statute of limitations for commencement of an action to recover land adversely possessed is seven years. Ark. Code Ann. § 18-61-101(a)(1987). However, the statute of limitations is three years from the accrual of a cause of action listed in Ark. Code Ann. § 16-56-105, regarding those obligations or contracts not in writing. Appellants asserted to the chancellor that since this case was at least in part being pursued as a constructive trust claim, then it was required tobe brought within three years of the first act by appellants in possession of the land that was in breach of that trust.

While the order does not specifically reject this defense, the chancellor implicitly did so by holding in favor of appellee and rejecting the defense of laches. The chancellor committed no error in rejecting this theory inasmuch as he found that there were no acts done adverse to the co-tenants that would constitute a breach of a constructive trust.

Affirmed.

Griffen and Neal, JJ., agree.

1 Steve Podbielski was also a named defendant and is a named appellant, but he is not discussed herein because his interest derives from a mortgage granted in his favor to secure a loan given to appellants Kubard and Bertha and creating a lien on Kubard and Bertha's interest in the forty acres at issue.

2 An amended order was filed on December 10, 1999, declaring that since Monie's will was not in fact probated, the fractional interests as accepted in the October 11, 1999, order were incorrect. Monie's interest passed as though she died intestate, and recalculated fractional interests were established. We do not address the correctness of these calculations inasmuch as there was no appeal taken from this December order, and that order has no impact on the resolution of the issues presented in the order from which a timely notice of appeal was filed.