Waller v. Dansby

224 S.W. 615, 145 Ark. 306, 1920 Ark. LEXIS 406

• Court: Supreme Court of Arkansas
• Decided: October 11, 1920
• Status: Published

Opinion

Hart, J.

(after stating the facts). It is claimed by counsel for appellant that Marshall Dansby had no color of title to the forty acres invlved in this appeal, and therefore could only acquire title by adverse possession to the ten acres of land which he had cleared and actually had in his possession. In making this contention counsel have not taken into consideration the fact that Marshall Dansby could tack his possession to that of his father, Jacob Dansby. The record shows that Jacob Dansby originally owned the land and had a deed thereto. According to the testimony of Amanda Dansby they paid taxes on the land and claimed it as their own until the year 1907. Marshall Dansby said that he entered the land at that time under a parol agreement from his father and mother and has continuously occupied it ever since, claiming it as his own, and either himself or his father paid the taxes thereon. This created a privity between him and his father, and he had the right to avail himself of the occupancy of his father. In order to create the privity requisite to enable the subsequent occupant to tack to his possession that of the prior occupant, it is not necessary that there he a conveyance in writing. It is sufficient if it is shown that the prior occupant transferred his possession to him, even though by parol. The authorities agree that privity between successive possessors is all that is necessary to render them continuous, if the possession be in fact actual and adverse. The privity may be created in any way that will prevent a break in the adverse possession and refer the several possessions to the original entry and it may be created either by parol or otherwise from vendor to vendee'. Memphis & Little Rock Rd. Co. as Reorganized v. Organ, 67 Ark. 84; Wilson v. Rogers, 97 Ark. 369, and St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71. From these authorities it is apparent that the court was justified in finding from the testimony' that Marshall Dansby had been in adverse possession, of the land for more than seven years under color of title.

Again, it is contended that, after the foreclosure proceedings instituted by Waller against Jacob Dansby to foreclose a mortgage on the land involved in this appeal, together with other land, and the execution of a commissioner’s deed to Waller, the possession of Dansby was not hostile, but that he was presumed to hold in subordination to the title conveyed to Waller, unless there is affirmative evidence of a contrary intention.

In the case at bar, according to Waller’s own testimony, he received a deed to the land early in 1903, and in a year or two thereafter found that the Dansbys were paying .taxes on the land. He wrote them about the matter and received no answer. In his letter he offered to sell them the land. The Dansbys continued to pay taxes on the land and to claim it as their own. Jacob Dansby and his wife put their son, Marshall Dansby, in possession of the land in 1907, under a parol agreement of gift to him, and he has occupied the land ever since, building a house on it and clearing a part of it.

The circuit court was justified, under all the circumstances in the case, in finding that Waller had actual notice of the adverse claim of the Dansbys. The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it. Miller v. Fraley and Greenwood & Co., 23 Ark. 735, and Bland v. Fleeman, 58 Ark. 84.

Waller says he paid taxes on the land for a year or two after the foreclosure sale; that then the Dansbys began to pay taxes on it. He wrote them about the matter and received no answer. Under the circumstances he should have pursued his inquiry further, and if he had done so he would have found out that they were claiming the land under the original grant to Jacob Dansby. Hence the circuit court was justified in finding for the defendant, Marshall Dansby.

It follows that the judgment must be affirmed.