M'ASTER 1177 '• , " , 1,, ■ ' IVLASTERS. v. IlAYNES . .;,,, . ■:., . 0:. ; ,,f :• • .1%Oriinion :delivered. ; December /21,! 4925. 1: ADVERSE TOSSESSIONPERMISSIVE . Occiii-Ai sib y.ofie • aiready' in 'PerniiS4ive ! posse.sSionl 'of 'a Pait -of' the land in controversy ! ceuld • net claim adverse h possessiOn; under a rqPitelaim. deed ;aequired, us ,color of title ! until, he ,first. relinguished, ;his ,pemissive ,possession and retook , possession under the deed., 2. , APPEAL , ANDERROR—RIGHT . TO having o , interest in a . tract' of land" Will net 'be i)Idth.ci airaPlain . Of a 'decree reforming , a deed to 'liiS"OPPOnents;' ihe' grantoi-sUch - deed; viras riot 'a par4r..; t) 1- '.; 1 , i ,• .;/ Appe,al;frorn WOo / d • 'I r -uff Chancer :1 i y .1 1 : Cour ; t, ' ; N i o d it ; h ern DiStrief• A: L. Huichins Chaneellor • affirmed. • ,! ; ,1gENT- , TEE.E I CO. U. R T.; , •1: Avery.l Mastei8; :brought . ithis equityt zagain§t Wallace Haynes, Mrs . .; Wallace , Haynes,.%an& :Sherman Masters, to;;enjoin t them %ifiiom Cutting' . !- timber %On : "a ",eerL tain -tract :of iandcin. Woodriiff Coidnty,; %Ark., hand . to reccATer darhages , for the , thhber alroadY but bY; them .ori gaid • %-,.: !,1;; 1 • 7: The :defendants filed ai .a; änweinwhicli They , fft, title ih ;the def endant's;' Mr's: Wallace" HdYnes , and Sher-man Masters, and : asked)for ret6rinatien:of ; the' deed
whereby said land Vas convey iedao! her go-a to , descriIie corredtly.l I '),:! ). !1 !1lli j h. . I:
1178 MASTERS V. HAYNES. [169 According to the testimony for the, plaintiff, on the 23rd day of October, 1913, he secured a quitclaim deed to said land for the purpose of using it as color of title, so that he might secure title to the land by adverse possession. The plaintiff, Avery Masters, knew, and the grant-or in the quitclaim deed knew, that the latter had no title whatever to the land. They stated, however, that they did not think the land belonged to any one, and the plaintiff desired to • acquire title to it by adverse possession. The land is on the east bank of White , River in Wood-ruff County, Ark., and the original plat shows that it only contained about 15 acres. Additional land has been added to the tract by accretion, and it now comprises about 96 acres. The plaintiff lived on an adjoining tract of land at the time he secured the quitclaim deed in question, and about five acres of the land involved in controversy was in his field, and he cultivated it. He afterwards had about ten acres additional cleared. He denied that he had occupied the land in question by permission from the widow of his brother, who claimed to own it, and said that he had tried to pay taxes 'on the land' since he had acquired a quitclaim deed to it, but that some one had always paid , the taxes ahead of him. According to the testimony of Mrs. Wallace Haynes, the land in question had belonged to Wesley Masters, a brother of Avery Masters. 'Mrs. Wallace Haynes married Wesley Masters in April, 1884, and at that tithe he was living on the land in question, and had been living there for several months. Her occupation of the land has been continuous ever since that time, and her husband paid the taxes on the land until he died in 1896. After her husband's death, she continued to occupy the land as her homestead, and to pay the taxes thereon. In 1898 she married Wallace Haynes, and he came to live on the land with her. Prior to his death her husband built a new home on an adjoining tract of land and moved in it, but they continued to claim .the land in question as a part of their homestead. Their homestead had 65 acres of cleared land on it, and a part of the cleared land was on
ARK.] MASTERS v. HAYNES. 1179 the tract in controversy. They cultivated the cleared land continuously from 1884 up to the present time. Wesley Masters received a deed to the land in controversy from M. A. Harris, who lived on the land at the time he conveyed it to Wesley Masters. Harris then left the country, and has not been heard of for 'several - years.. The deed from M.A., Harris and wife to Wesley Masters described the land as being in the S. E. 1/4 of section 13,, when,it should have been in the S. , W. 1/1 of section 13.,, Mrs. S. E. Hughes also testified that, M. A. Harris lived in a small house on the, river about 75 or 100 yards from where Mrs.. Wallace Haynes now, lives- After Harris left the house Wesley Masters ,moved- into it, hut she does not know, whether he bought the place from a H . arris or not. Wallace Haynes corroborated in all respect , s the tes,- timony of Mrs. Wallace Haynes. The chancellor found the issues in favor , of the defendants, and it was decreed that the complaint Of the plaintiff be dismissed for want of equity.' It was further decreeethat the quitclaim deed to the plaintiff be canceled.as a cloud 6n the title of, Mr.s.,Wallace Haynes and Sherman Masters, and that the 'deed fr6m M. A. Harris to Wesley ,Masters be 'reformed, so as to ,describe the land correctly. To reverse the decree the plaintiff has duly prosecuted this appeal. W. J. Dungan, for appellant. J. F. Summers and J. F: Sum,mers, Jr., for appellee.
HART, J., (after stating the facts). The decision-of the chanceiY courC was correct. According to the testimony of the plaintiff himself, about five acres of the land in controversy was in his field, and ho was cultivating it at the time he obtained the quitclaiin deed. He acquired the quitclaim deed for the very purpose of using it as color of title to obtain title to the land by adverse possession. Before he could do 'this he should have relinquished his possession of the land and have agahr taken
•1180 MASTEliS V. HAYNES. [169 'possession of . it "indef his • qUitclaim' deed. •Instead•.of doing this, he continued in pOssession of . the •five acres in the mine' way as. befere• ecuring the qiiitclaim'.deed. According • to the'teStimony of , Mrs./ WallaCe liayneS; 'he was' holding •his -pOssessioii by permission from ; he'r. All the attenclant YcircumStances;: 'cOri'oborate her testi-meny,'Wesley Masters,. the IbrOther 'MaSters, lived on the land 'from 1884' tip' tO a . r shbrt time.before death:in 1896:' He cultivated We' bleared hind; 'and 'paid taxes on all . of it. Then he built a new houe • on 'an adjoinink tract, '1511t* Centinued' to • CultiVate the Cleared land, and te. paY • the' taxes On : all:of it'. After 'his death his . widolVcOntinued to chltivate the'cleared land, and to claim all of it , aS • a part•of h'er'honiestead. 'She' alse con- tintedlo'pay the ta'xd • on the Whele ttad. It is true that she first testified that Harri.s. had Conveyed the land in questiOn *U?. .her . husbancl, and afterwards a deed was IOnci• on recdrd . Which,.shoWed that, FiarrIS 'had bonv:eyea , 6 WeSleY Masfer'S an adjoining , tract of :lancl. The . , eyidenCe; ,hower, shows , that Harris did not oWn'the, .ad i jOining tiact t ei,f l' and, and it • i • s • fai • r •• ly' Tri , te • r , M •, -11 •• C • that . he 4 „ I i f n : te , nd ed cOnVeY fo . . V ■T sI e Master's' i the tract, of -land in qUestion and',bY nii j s o ta i• k " e desoribe'd au adjoining' tract,' :This iS ..shoWii. by the, fact that liarrifs onithel Vi ladt qiies -tiOnL af ,the. tithe he executed. the deedto W iesley Masters, and that he moved • off of th /: e l • a nd • when he . execnted • the deed, and Wesley Masters moved into the,house which HarriS had' VaCated. . It is true . that under the'xule ; announced in 'Ward v. 111c1114th,,153 , Ark.506,, :Harris, was a necessary.-party in a suit to reform:the deed executed•by him to -Wesley Masters ; but . the- plaintiff , is not t in . any:,wiSe ,prejudiced by the.,action• of :the court .iii:J'eforming :the :deed, . The reaSon . is. that Ihe4bad; no title whatever.to the • land,, and is in no 'wise interested in. it. •;Under the evidence .pre, sentecl in the , record, •M. A„ Harris, intended to convey the land in controversy to Wesley Masters, and .by mistake conveyed a]other' traet.:•An equitable estate in the
land, however, passed to Wesley Masters, Who died intestate. Mrs. Wallace Haynes, his widow, and Sherman Masters, hia son and sole heir at law, had a right tO', pro? tect their interests in the land in the present Suit. Knight v. Glasscock, 51 Ark. 390. In order to protect their equitable estate in the land, the chancery court properly dismissed the complaint of the plaintiff 'for want of equity, and canceled the quit-claim deed which had been executed to him as a cloud upon the equitable .titie of MrS. Wallace 'Haynes iand Sherman Masters: • , ,.,; It follows that the decree will be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.