Carleton Harris, Chief Justice.
This litigation relates to the ownership of a 20 acre tract of land located in Izard County, Arkansas. Appellees are Tursey Cooper, widow of Robert J. Cooper, and all of the heirs at law of Robert J. Cooper except the appellants. Appellants are Juanita Cooper, widow of Leslie Cooper, and the heirs at law of Leslie Cooper. Leslie was a son of Robert Cooper, the latter dying intestate in 1951. Leslie Cooper died intestate in 1968. In their pleadings, appellees alleged that Leslie and Juanita Cooper, who had earlier purchased the 20 acres in question, conveyed said tract to Robert Cooper, but that the deed had never been recorded, and had been lost. It was asserted that Robert Cooper went into possession of the premises at the time of the conveyance, and maintained possession until his death in 1951; that since that time, Tursey Cooper had claimed dower and homestead in the lands, and had paid taxes on same. In their answer, appellants stated that the land was purchased by Leslie Cooper in 1929 and it was denied that Leslie and wife had conveyed the lands to Robert Cooper. Appellants likewise denied that Robert Cooper had acquired any title by adverse possession; to the contrary, it was asserted that Robert Cooper had permissive possession of the property while Leslie and Juanita were in California. At the conclusion of the evidence, both sides moved that the pleadings be considered amended to conform to the proof, including the plea of adverse possession on the part of appellants and appellees. This motion was granted. Thereafter, the trial court entered its decree finding that the greater weight of the evidence supported the contention of appellees, ■and that Robert Cooper was the owner of the twenty acre tract at the time of his death in 1951, the proof reflecting that during his lifetime, title had been perfected to the lands by adverse possession; that the children of Robert Cooper and their descendants became tenants in common of the lands owned by him at the time of his death, subject to the dower and homestead rights of Tursey Cooper. It was found that the contentions and claims of appellants were without merit, and should be denied. From the decree so entered, appellants bring this appeal. For reversal, appellants rely upon four points which we proceed to discuss in the order listed.
It is first asserted that appellees did not establish by competent evidence that Robert Cooper secured from Leslie Cooper, the son, a deed which was subsequently lost. We agree that no lost deed was established, but since the trial court’s decree was based upon a finding that Robert Cooper had acquired title by adverse possession, there is no need to discuss the question of the lost deed.
It is next asserted that the finding that Robert Cooper had obtained title by adverse possession to the 20 acre tract was against the preponderance of the evidence. Under this point, appellants first urge that the original use of the property by the father was permissive, and accordingly, it was necessary that notice of an adverse claim be given by unequivocal acts of hostility. In Bellamy v. Shryock, 211 Ark. 116, 199 S. W. 2d 580, this court pointed out that as between parties holding parental and filial relations, the possession of the land of the one by the other is presumptively permissive or amicable, and, for such a possession to become adverse, there must be some open assertion of hostile title (other than mere possession) and knowledge thereof brought home to the owner. We agree that appellants thus correctly state the law, and the question before us is whether the proof offered by appellees met this requirement. According to Juanita Cooper, in purchasing the land (together with other lands not here involved), Leslie and Juanita found it necessary to borrow $500.00 in order to complete the purchase. Juanita stated that Robert Cooper loaned $300.00 of this amount and her father loaned the other $200.00. She testified that Robert Cooper said that if Leslie and Juanita would let him use the field (located in the 20 acres in dispute) they could “hand the $300.00 back” (at no particular date) and this would be satisfactory, an arrangement to which they agreed.
“Well, Mr. [Robert] Cooper used the field. It didn’t include 20 acres; it was a field inside of this tract of land — just the field — and he planted it in first one thing and another in whatever he chose.”
This was, according to Juanita, the status of the matter until 1938 when Leslie and Juanita went to California. It appears from Juanita’s testimony that they were in and out of California for over 15 years.
“Well, the first time, we just stayed a few months, and then we came back, and we stayed at home for awhile. And then we went back and stayed awhile; then we came back again and stayed awhile; and then we went back later and stayed 15 years.”
She said that in 1940, Leslie’s nephew, Lowell Cooper, was serving as postmaster in the community and built a country store and postoffice, with living quarters, on the 20 acres. While this building was under construction, Lowell and wife lived with Leslie Cooper and his wife who had a home on lands not here involved. She stated that Robert Cooper told her not to execute any deed to Lowell for any part of the 20 acres because “he won’t stay here any time and, if he has got a deed to it, he would sell it to somebody, and we might have a beer joint right here under our nose, and we don’t want that”. Leslie and Juanita subsequently returned to California and resided there approximately 15 years, though the evidence reflects that Leslie returned several times through the years. During that time, Robert Cooper exercised various acts of ownership. Robert Cooper, commencing with the 1940 taxes, paid from that time until his death in 1951, and the taxes thereafter were paid in Robert Cooper’s name until 1969, when the original petition to quiet title was filed. Juanita Cooper testified that she paid the taxes for 1968 in 1969, but that she understood the taxes for that year had been paid twice. When she endeavored to pay the 1969 taxes, she learned that they had already been paid.1 Juanita testified that she authorized her son, Lonnie, to make the $300.00 payment due Robert Cooper, to Troy Cooper, Robert’s son, and one of the appellees herein, who, in 1957, was managing the properties of his father, but Troy would not take the money, and it has never been paid. Lonnie also testified that upon returning to Arkansas in approximately 1957, (after getting out of the service), he, at the request of his parents, went to the home of Troy Cooper and offered him the $300.00 that had not been paid to Robert Cooper, but he stated that Troy refused to accept it. As to this fact, Troy Cooper testified that Lonnie did come to see him, but not for the purpose of paying back any $300.00 due Robert Cooper. He said that, to the contrary, Lonnie stated that he had a letter from his father and wanted to buy the 20 acres.2
A number of witnesses testified on each side, twelve for appellees, of which five were not related; seven witnesses testified for appellants, four of which were not related. The testimony of several of the witnesses offered by appellees was to the effect that Robert Cooper had complete charge of the 20 acres during his lifetime and was recognized as the owner.
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Carleton Harris, Chief Justice.
This litigation relates to the ownership of a 20 acre tract of land located in Izard County, Arkansas. Appellees are Tursey Cooper, widow of Robert J. Cooper, and all of the heirs at law of Robert J. Cooper except the appellants. Appellants are Juanita Cooper, widow of Leslie Cooper, and the heirs at law of Leslie Cooper. Leslie was a son of Robert Cooper, the latter dying intestate in 1951. Leslie Cooper died intestate in 1968. In their pleadings, appellees alleged that Leslie and Juanita Cooper, who had earlier purchased the 20 acres in question, conveyed said tract to Robert Cooper, but that the deed had never been recorded, and had been lost. It was asserted that Robert Cooper went into possession of the premises at the time of the conveyance, and maintained possession until his death in 1951; that since that time, Tursey Cooper had claimed dower and homestead in the lands, and had paid taxes on same. In their answer, appellants stated that the land was purchased by Leslie Cooper in 1929 and it was denied that Leslie and wife had conveyed the lands to Robert Cooper. Appellants likewise denied that Robert Cooper had acquired any title by adverse possession; to the contrary, it was asserted that Robert Cooper had permissive possession of the property while Leslie and Juanita were in California. At the conclusion of the evidence, both sides moved that the pleadings be considered amended to conform to the proof, including the plea of adverse possession on the part of appellants and appellees. This motion was granted. Thereafter, the trial court entered its decree finding that the greater weight of the evidence supported the contention of appellees, ■and that Robert Cooper was the owner of the twenty acre tract at the time of his death in 1951, the proof reflecting that during his lifetime, title had been perfected to the lands by adverse possession; that the children of Robert Cooper and their descendants became tenants in common of the lands owned by him at the time of his death, subject to the dower and homestead rights of Tursey Cooper. It was found that the contentions and claims of appellants were without merit, and should be denied. From the decree so entered, appellants bring this appeal. For reversal, appellants rely upon four points which we proceed to discuss in the order listed.
It is first asserted that appellees did not establish by competent evidence that Robert Cooper secured from Leslie Cooper, the son, a deed which was subsequently lost. We agree that no lost deed was established, but since the trial court’s decree was based upon a finding that Robert Cooper had acquired title by adverse possession, there is no need to discuss the question of the lost deed.
It is next asserted that the finding that Robert Cooper had obtained title by adverse possession to the 20 acre tract was against the preponderance of the evidence. Under this point, appellants first urge that the original use of the property by the father was permissive, and accordingly, it was necessary that notice of an adverse claim be given by unequivocal acts of hostility. In Bellamy v. Shryock, 211 Ark. 116, 199 S. W. 2d 580, this court pointed out that as between parties holding parental and filial relations, the possession of the land of the one by the other is presumptively permissive or amicable, and, for such a possession to become adverse, there must be some open assertion of hostile title (other than mere possession) and knowledge thereof brought home to the owner. We agree that appellants thus correctly state the law, and the question before us is whether the proof offered by appellees met this requirement. According to Juanita Cooper, in purchasing the land (together with other lands not here involved), Leslie and Juanita found it necessary to borrow $500.00 in order to complete the purchase. Juanita stated that Robert Cooper loaned $300.00 of this amount and her father loaned the other $200.00. She testified that Robert Cooper said that if Leslie and Juanita would let him use the field (located in the 20 acres in dispute) they could “hand the $300.00 back” (at no particular date) and this would be satisfactory, an arrangement to which they agreed.
“Well, Mr. [Robert] Cooper used the field. It didn’t include 20 acres; it was a field inside of this tract of land — just the field — and he planted it in first one thing and another in whatever he chose.”
This was, according to Juanita, the status of the matter until 1938 when Leslie and Juanita went to California. It appears from Juanita’s testimony that they were in and out of California for over 15 years.
“Well, the first time, we just stayed a few months, and then we came back, and we stayed at home for awhile. And then we went back and stayed awhile; then we came back again and stayed awhile; and then we went back later and stayed 15 years.”
She said that in 1940, Leslie’s nephew, Lowell Cooper, was serving as postmaster in the community and built a country store and postoffice, with living quarters, on the 20 acres. While this building was under construction, Lowell and wife lived with Leslie Cooper and his wife who had a home on lands not here involved. She stated that Robert Cooper told her not to execute any deed to Lowell for any part of the 20 acres because “he won’t stay here any time and, if he has got a deed to it, he would sell it to somebody, and we might have a beer joint right here under our nose, and we don’t want that”. Leslie and Juanita subsequently returned to California and resided there approximately 15 years, though the evidence reflects that Leslie returned several times through the years. During that time, Robert Cooper exercised various acts of ownership. Robert Cooper, commencing with the 1940 taxes, paid from that time until his death in 1951, and the taxes thereafter were paid in Robert Cooper’s name until 1969, when the original petition to quiet title was filed. Juanita Cooper testified that she paid the taxes for 1968 in 1969, but that she understood the taxes for that year had been paid twice. When she endeavored to pay the 1969 taxes, she learned that they had already been paid.1 Juanita testified that she authorized her son, Lonnie, to make the $300.00 payment due Robert Cooper, to Troy Cooper, Robert’s son, and one of the appellees herein, who, in 1957, was managing the properties of his father, but Troy would not take the money, and it has never been paid. Lonnie also testified that upon returning to Arkansas in approximately 1957, (after getting out of the service), he, at the request of his parents, went to the home of Troy Cooper and offered him the $300.00 that had not been paid to Robert Cooper, but he stated that Troy refused to accept it. As to this fact, Troy Cooper testified that Lonnie did come to see him, but not for the purpose of paying back any $300.00 due Robert Cooper. He said that, to the contrary, Lonnie stated that he had a letter from his father and wanted to buy the 20 acres.2
A number of witnesses testified on each side, twelve for appellees, of which five were not related; seven witnesses testified for appellants, four of which were not related. The testimony of several of the witnesses offered by appellees was to the effect that Robert Cooper had complete charge of the 20 acres during his lifetime and was recognized as the owner. For intstance, Frank Page of Melbourne, apparently disinterested, testified that he lived on the place for about three years; he rented the building located on the 20 acres from Robert Cooper and paid rent to the latter; he also farmed the land for two years. Page said that for at least two years of the time he (Page) was renting the premises, Leslie lived just across the creek from the store, and that Leslie never indicated to him in any way that he (Leslie) was the owner of the lands, and further, that Leslie never tried to collect any rents from him. Evidence was also offered by both sides to the effect that while Leslie was in California, those renting Leslie’s lands also paid the rent to Robert, but there is no contention but that Robert remitted these rents to Leslie, and never made any claim to any of the son’s property other than the 20 acres. L. D. Lafferty, a disinterested witness, who did some “bush hogging” on the 20 acre tract in 1968, testified that Juanita Cooper told him that Mrs. Robert Cooper (Tursey) was the proper party to see about his plan to build a little park on the 20 acres.
Evidence was offered by appellees to the effect that taxes on a 20 acre tract which had previously been paid in the name of Leslie Cooper, w.ere, commencing in 1941, paid in the name of Robert Cooper, but they were paid under a part description, and this continued from 1941 until 1967. Appellants contend that taxes so paid are not evidence of ownership of the lands, the description being void. We agree with that contention, but we do think that the evidence was admissible as a matter of calling Leslie’s attention to the fact that his father was evidently making claim to this 20 acre tract. Let it be remembered that Leslie had other lands upon which Robert was paying taxes (while the son was in California) but these taxes were consistently paid in the name of the son. It has already been mentioned that Leslie was back in the community from time to time. The record does not disclose whether he went to the courthouse, but since it appears from the testimony that he was in Arkansas for as much as a couple of years, at least on one occasion, it is logical that he would have been paying taxes on his own property and would have noticed the fact that a 20 acre tract, formerly in his name, had been changed.
Several witnesses also testified that the general reputation in the community was that Robert Cooper owned this 20 acres, and appellants contend that this evidence was inadmissible. We agree that the testimony was not admissible as a matter of establishing title to the property, but we think it was admissible to show that Robert Cooper’s acts of ownership were so notorious as to leave the distinct impression that his possession was adverse.
As far as definite recognition by Leslie and Juanita Cooper of the claim of Robert Cooper to this 20 acres is concerned, one circumstance adds cogently to the contention of appellees. In December, 1929, Leslie and Juanita Cooper mortgaged their property to the Bank of Melbourne and the mortgage included the 20 acres here under discussion. In 1934, a mortgage was given to the Federal Land Bank by Leslie and Juanita, and this mortgage also included the 20 acres. However, in February, 1959, a deed of trust from Leslie and Juanita was given to the Bank of Melbourne and the 20 acres in question were not included in the deed of trust. Juanita Cooper was unable to explain why this tract was not included, “I don’t know the reason why”. It is also curious that over 15 years passed before Leslie and Juanita tendered the $300.00, which they said was due Robert Cooper; in fact, the latter had been dead for several years. Since the early part of the 15 year period covers a time of general prosperity, it would appear that this sum of money could have been earlier paid. We are of the view that appellees offered sufficient testimony to establish that the possession of Robert Cooper was open, hostile, and adverse to the title of Leslie and Juanita Cooper and was sufficient to bring that fact home to Leslie and Juanita.
Appellants assert, that even though this court finds that adverse possession was established by Robert Cooper, appellants in turn re-acquired title to the land in question by adverse possession. This claim is based on a contention that they used this 20 acres as pasture for their cattle. They assert that this use commenced in 1957, and that a fence on the east separated the tract from lands of Lonnie Cooper; on the north there was a fence along the south right of way of Knob Creek Road, with Lonnie Cooper’s lands being north of the road; on the south there was Knob Creek, separating other lands of Juanita Cooper from the 20 acre tract, there being no usable fence between Juanita’s lands and the 20 acres, apd on the west were the lands of Lonnie Cooper and R. J. Blankenship. Appellants state:
“Thus, the Creek forms an effective boundary of lands claimed by Appellants along with fence and road on the north and fence on the east.”
Various witnesses testified that they had seen cattle on the tract after 1957, and appellants say that since no appellee claims to have had cattle on this 20 acres since that time, it has been established that the land was used solely by them, but there is also testimony that the fences were “sorry” and not sufficient to keep cattle from roaming to the 20 acres from other properties. The grazing of the cattle on the 20 acres was by far the main fact testified about, and the principal one relied upon by appellants. Two persons testified that they obtained permission from Leslie to remove gravel from the 20 acres, one witness stating that this occurred in 1956 and 1969, the other stating that it occurred in 1964. Juanita also testified that she had mended fences around the acreage in dispute. This pretty well was the sum total of appellant’s evidence. However, the transcript reflects that appellees were also exercising acts of ownership during this period.
We do not think it was established that appellants used this land for more than seven consecutive years, or that their use was exclusive, or adverse to the interests of appellees and, in fact, the grazing of livestock over land, while it should be considered with other acts of dominion, is not of itself sufficient to establish adverse use. See Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806; nor do we consider the other acts of asserted ownership to be sufficient to establish this claim. However, were it otherwise, appellants still could not prevail, for we have held on numerous occasions that the possession of one tenant in common is the possession of all tenants. Ueltzen, et al v. Roe, 242 Ark. 17, 411 S. W. 2d 894, and cases cited therein; it is also well established that in order for the possession of a tenant in common to be adverse, it is necessary for him to bring home to his co-tenant knowledge of his hostile claim by acts so notorious and unequivocal that notice must be presumed; Ueltzen, et al v. Roe, supra, and cases cited therein. Certainly, the quantum of proof was not sufficient to establish this fact. On the whole case, it would appear that appellees presented a much stronger and persuasive case in support of their contentions than did appellants. It must also be remembered that where witnesses outrightly contradict each other and testify to a totally different set of facts, the chancellor, who sees and hears the testimony, is in a much better position to determine which witnesses are telling the truth.
Finally, appellants state that in event the court should hold with appellees, the 20 acre tract should be partitioned since if is not adjacent to nor contiguous with the other acreage which was owned by Robert Cooper, was never used as a home by either Robert or Tursey, and is not a part of the widow’s homestead. We agree that the testimony reflects that the 142 acres which was owned by Robert Cooper, and the 20 acres are two separate and distinct farms, and it would certainly appear that the property is not susceptible of division into the minute interests of the numerous heirs. Accordingly, we agree that the 20 acres should be sold under order of the court with the widow’s dower interest determined by the court and awarded from the proceeds.3 In all other respects, the decree is affirmed.
It is so ordered.
Fogleman, J., dissents.