John A. Fogleman, Justice.
The primary question on this appeal involves the validity of a written instrument as a conveyance of real property.
Appellant filed a partition suit claiming to he the owner of an undivided one-seventh interest in certain tracts of land in Franklin County. He alleged that appellee was also the owner of an undivided one-seventh interest. Appellant asserted, and it is agreed, that the common source of title was George T. Wade, who owned all of the property at the time of his death on August 15,1945. Appellant claimed title by reason of a conveyance from one Victor Grady Wade, the sole heir of Guy G. Wade, who was one of the seven children of George T. Wade. Guy G. Wade died on September 10, .1948.
On April 26, 1947, Guy G. Wade executed and delivered to appellee the following written instrument:
£ 1 Glendora, California
April 26, 1947
AGREEMENT OF SALE
NOTICE: For the sum of $300.00 cash in hand, paid, the receipt of which is hereby acknowledged, I, Guy G. Wade, sell to Ova Lea TCeifer, all my rights, title and interest in the estate of my father George T. Wade — deceased. I also agree to render proper and legal conveyance at any time upon request of said Ova Lea Keifer.
Gny G. Wade
Signed:
Guy G. Wade”
The defendants in the partition suit, of which appellee was one, filed an answer in which it was asserted that appellee was the owner of an undivided two-sevenths interest in the. lands. They also denied that appellant had any interest in them. The instrument above set out was made an exhibit to their answer and later introduced in evidence in support of appellee’s claim. It was also alleged in the answer that appellant knew at the time of his conveyance that his grantor had no interest in the lands and knew that Guy G. Wade had conveyed his interest to the appellee by the instrument above set out. They also alleged that the recording of this instrument on June 20, 1955, gave constructive notice to appellant.
Appellant contends that the instrument in question is void and that it was not notice either to him or to his predecessor in title. One of his arguments in support of this contention is that the deed does not describe ány real property. In this respect we agree with the appellant.
In Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585, we held that a deed which did not identify the land sought to be conveyed as being in any county or even in the state was void as failing to furnish a key by which the land might be certainly identified. As we said in that case, the land intended to be conveyed might he in another state.
The chancellor based his holding, in part, upon adverse possession for the period of limitations by appellee, laches of appellant and estoppel. Appellee argues those defenses here even though she failed to plead either of them and testified that her claim depended entirely upon the written instrument. Generally, in order to be available to a party the defenses of limitations and estoppel must be pleaded, and relied on in the trial court. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190.
The adverse possession statute may become an issue during the trial, however, either by amendment of the pleadings or by evidence showing operation of the statutory bar. Roberts v. Burgett, 209 Ark. 536, 191 S.W. 2d 579. In this case, however, appellee, on the one hand, and appellant and his grantor, on the other, were tenants in common. In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or bj^ such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809.
In this case, Mrs. Keifer never talked with her nephew Victor Grady Wade about the matter. Sometime between two and six years before the trial, she executed two division orders acknowledging that Victor Grady "Wade was entitled to a one-seventh interest in royalties arising from the interest of George T. Wade in the lands. The only evidence of adverse possession is the fact that rents for a two-sevenths interest were paid to appellee and none were paid to Victor G. Wade. It was shown that Victor did not inquire about his share of the rents. The sole enjoyment of rents and profits by a tenant in common does not necessarily amount to a disseizin of a cotenant. Hardin v. Tucker, 176 Ark. 225, 3 S.W. 2d 11.
This .case is remarkably similar to Smith v. Happier, supra, where we reversed a finding of adverse possession against a cotenant seeking partition. The basis of our holding was that there was no showing that notice of the adverse claim was given and that there was a recognition of the title of the cotenant by acts done during the period of asserted adverse possession. Appellee here failed to meet her burden for the same reasons. We are not impressed with her explanation that she signed the division orders as a gratuity because they were too insignificant for her to raise any question. She admitted that she knew she was conceding a one-seventh interest to Victor Grady Wade. Her action is more consistent with a recognition of his title than with her present contention. See also Zachery v. Warmack, 213 Ark. 808, 212 S.W. 2d 706.
Generally, estoppel must be pleaded to be available as a defense. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190. Estoppel may also become an issue when no objection is made to evidence in support of the defense. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Aclin v. Caplener, 229 Ark. 718, 318 S.W. 2d 141. Here the defense was neither pleaded nor relied upon by appellant, who testified that her claim depended entirely upon the written instrument signed by Guy G. Wade. Although estoppel can arise by actions of a party, or his failure to speak or act as well as by representations, it does not exist unless the adverse party has in good faith relied upon the acts, representations, inaction or silence to his detriment. Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443; Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885. We find no evidence to show that Ora Lee Keifer relied upon any acts of either Victor Grady Wade or Jack Bowlin to her detriment in any respect.
In order for laches to constitute a defense, appellee must have suffered such a change in position that she could not be restored to her former state by reason of the failure of appellant or his predecessor in title to assert the present claim. Baxter v. Young, 229 Ark. 1035, 320 S.W. 2d 640. Appellant acquired title by deed from Victor Grady Wade on December 5, 1966. This action was brought February 3, 1968.
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John A. Fogleman, Justice.
The primary question on this appeal involves the validity of a written instrument as a conveyance of real property.
Appellant filed a partition suit claiming to he the owner of an undivided one-seventh interest in certain tracts of land in Franklin County. He alleged that appellee was also the owner of an undivided one-seventh interest. Appellant asserted, and it is agreed, that the common source of title was George T. Wade, who owned all of the property at the time of his death on August 15,1945. Appellant claimed title by reason of a conveyance from one Victor Grady Wade, the sole heir of Guy G. Wade, who was one of the seven children of George T. Wade. Guy G. Wade died on September 10, .1948.
On April 26, 1947, Guy G. Wade executed and delivered to appellee the following written instrument:
£ 1 Glendora, California
April 26, 1947
AGREEMENT OF SALE
NOTICE: For the sum of $300.00 cash in hand, paid, the receipt of which is hereby acknowledged, I, Guy G. Wade, sell to Ova Lea TCeifer, all my rights, title and interest in the estate of my father George T. Wade — deceased. I also agree to render proper and legal conveyance at any time upon request of said Ova Lea Keifer.
Gny G. Wade
Signed:
Guy G. Wade”
The defendants in the partition suit, of which appellee was one, filed an answer in which it was asserted that appellee was the owner of an undivided two-sevenths interest in the. lands. They also denied that appellant had any interest in them. The instrument above set out was made an exhibit to their answer and later introduced in evidence in support of appellee’s claim. It was also alleged in the answer that appellant knew at the time of his conveyance that his grantor had no interest in the lands and knew that Guy G. Wade had conveyed his interest to the appellee by the instrument above set out. They also alleged that the recording of this instrument on June 20, 1955, gave constructive notice to appellant.
Appellant contends that the instrument in question is void and that it was not notice either to him or to his predecessor in title. One of his arguments in support of this contention is that the deed does not describe ány real property. In this respect we agree with the appellant.
In Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585, we held that a deed which did not identify the land sought to be conveyed as being in any county or even in the state was void as failing to furnish a key by which the land might be certainly identified. As we said in that case, the land intended to be conveyed might he in another state.
The chancellor based his holding, in part, upon adverse possession for the period of limitations by appellee, laches of appellant and estoppel. Appellee argues those defenses here even though she failed to plead either of them and testified that her claim depended entirely upon the written instrument. Generally, in order to be available to a party the defenses of limitations and estoppel must be pleaded, and relied on in the trial court. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190.
The adverse possession statute may become an issue during the trial, however, either by amendment of the pleadings or by evidence showing operation of the statutory bar. Roberts v. Burgett, 209 Ark. 536, 191 S.W. 2d 579. In this case, however, appellee, on the one hand, and appellant and his grantor, on the other, were tenants in common. In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or bj^ such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809.
In this case, Mrs. Keifer never talked with her nephew Victor Grady Wade about the matter. Sometime between two and six years before the trial, she executed two division orders acknowledging that Victor Grady "Wade was entitled to a one-seventh interest in royalties arising from the interest of George T. Wade in the lands. The only evidence of adverse possession is the fact that rents for a two-sevenths interest were paid to appellee and none were paid to Victor G. Wade. It was shown that Victor did not inquire about his share of the rents. The sole enjoyment of rents and profits by a tenant in common does not necessarily amount to a disseizin of a cotenant. Hardin v. Tucker, 176 Ark. 225, 3 S.W. 2d 11.
This .case is remarkably similar to Smith v. Happier, supra, where we reversed a finding of adverse possession against a cotenant seeking partition. The basis of our holding was that there was no showing that notice of the adverse claim was given and that there was a recognition of the title of the cotenant by acts done during the period of asserted adverse possession. Appellee here failed to meet her burden for the same reasons. We are not impressed with her explanation that she signed the division orders as a gratuity because they were too insignificant for her to raise any question. She admitted that she knew she was conceding a one-seventh interest to Victor Grady Wade. Her action is more consistent with a recognition of his title than with her present contention. See also Zachery v. Warmack, 213 Ark. 808, 212 S.W. 2d 706.
Generally, estoppel must be pleaded to be available as a defense. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190. Estoppel may also become an issue when no objection is made to evidence in support of the defense. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Aclin v. Caplener, 229 Ark. 718, 318 S.W. 2d 141. Here the defense was neither pleaded nor relied upon by appellant, who testified that her claim depended entirely upon the written instrument signed by Guy G. Wade. Although estoppel can arise by actions of a party, or his failure to speak or act as well as by representations, it does not exist unless the adverse party has in good faith relied upon the acts, representations, inaction or silence to his detriment. Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443; Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885. We find no evidence to show that Ora Lee Keifer relied upon any acts of either Victor Grady Wade or Jack Bowlin to her detriment in any respect.
In order for laches to constitute a defense, appellee must have suffered such a change in position that she could not be restored to her former state by reason of the failure of appellant or his predecessor in title to assert the present claim. Baxter v. Young, 229 Ark. 1035, 320 S.W. 2d 640. Appellant acquired title by deed from Victor Grady Wade on December 5, 1966. This action was brought February 3, 1968. Certainly there was no undue delay on appellant’s part. It is not shown that appellee has suffered any change in position by reason of any delay on the part of Victor Grady 'Wade. Her recognition of his rights when she signed the division order negates any idea that she had changed her position in any way.
We cannot subscribe to the suggestion that the fact that appellant was married to a daughter of Guy G. Wade’s widow by a subsequent marriage supplies any deficiencies in the evidence or charges appellant with any notice not otherwise shown. There might be some merit in the argument that appellant bore the burden of proof of the payment of a valuable consideration by him without notice of appellee’s claim, if the instrument relied upon by appellee constituted a contract enforceable between the parties. This is not the' case. A contract for the sale of land will not be enforced unless the description disclosed therein is as definite and certain as tliat required in a deed of conveyance. Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160. The instrument here does not contain such a description. Turrentine v. Thompson, supra.
The decree is reversed and the cause remanded to the trial court for entry of a decree consistent with this opinion since the title to real estate is involved.
Byrd, J., dissents.