ARK. . PULLEN V. C OWAN. 507 PULLEN V. CowAN. Opinion delivered April 7, 1924. 1. ADVERSE POSSESSION—EVIDENCE.—In an action in which plaintiff claimed to have acquired title to a strip of adjoining owner's land constituting a part of plaintiff's inclosed yard by adverse possession, evidence held sufficient to overcome presumption that plaintiff's predecessor held possession of the strip under and in subordination to the legal title of his grantee, defendant's predecessor, and not adversely to such grantee. 2. ADVERSE POSSESSION—RETENTION OF POSSESSION BY GRANTOR.— Retention of possession of land by a grantor after conveyance
508, PULLEN V, COWAN,. . [16$ there9f is presumed to be for the grantee; but such presumption wiit r iot extend . over an unr . e a .. s _ o „ n _ a ble length of time, Appeal from Benton Chancery Court; H. L. Pearson, special hancellor ; affirmed. . Sul ins & Ivie, for appellant. Wh rever a vendor retains possession after the execution Qjf the deed, limitation will not begin to run against the graptee until notice of the hostility of the vendor's claim: . 185 Ark: 520; 69 Ark. 562 ; 58 Ark. 142. If a granton in a deed containing a covenant-of:general War-, ranty (lonveying • away the "title. in fee :simple rem'ain possesqion, he iS -prestimptively the tenant 'of the"gtantee, and capnot set up an Undisputed title in him -self withOut having, shown some act of ouster - of his landlord, or the eqUivalent thereof. 16 L.' R. A. -(N. S.) . 1:147: See also 1 R. C! L., p. 751, -§ 75. -Where the language of the deed' is -plain, certain and Uriambiguous, its construction is a queStiph of law, arid the court --will-not consider the 'surrounding facts or circumstances. lin Ark: 425; 111 Ark.- 220. -1See also-158 Ark: 10. • . IfUMPHREYSj 'J: This suit was commenced' in the' circuit epurt of Benton County; but, on motion "Or appellants; was transferred to The-chancery court without objection; wherp the issues -Were- joined,- tried; and . -determined. The fourt found that appellee was the owner and entitled to retain possession of a strip of land ten feet wide squfirely off the north side of lot _6, in block 28, in B. F. Sikgs' addition to the' town, now city, of Rogers, Benton Coutity, Arkansas, and ,divested _all the interest, or apparent interest, of aPpellants therein out of them, and invpsted same in -appellee', from . Which- finding and decree an . ppeal has been duly prosecuted , to this.court., '. According to the -plat Of B. F.. Sikes!.addition to _the city of Rogers, lots 3 and • 6,- in block- 28; adjoined, -and each is fifty • feet wide. ' Lot 3 iS "north of-let 6. On 0 . 4toher 22, 1911, J..H. Goodwin — Was . the oWner . of , both lots, and resided upon the. property. .Tlie:rnain . part of hip house was , on lot 3, but it eNtended over , on ... lot 6, several feet. The testimony is in conflict, as to. the -exact
ARK..] V.ULLEN V. COWAN._ 509 distance, but fhe court found the, distance . to be. seyen feet, and we cannot say that the :finding is contrary _to the weight of the evidence. His:residence had a _fence around it, and his south line fenCe_Was ten feet over on lot 6, or, to state it differently, he had ten feet . squarely off Of lot 6 included in. his yard. :Oil that date he sold that part of lot 6 sonth of the division fence, the south forty feet thereof, to his son-in-law, E. B. Johnson, who tOok immediate posse'ssion thereOf, and built a home thereon. The property intended to: be conveyed was described in the deed from Goodin to Johnson_ as lot 6, in block 28, in B. F. Sikes' addition to_ ,the town of • Rogers. E. B. Johnson occupied the solith forty feet Of lot 6 until the second day of Februar,y; 1920. During hiS occupancy he never claimed any part: of the 'Jen:foot strip. The front part of the fence was torn:down, except the posts, which remained intact. Soine "time in 1917 the front part of the fence was rebuilt. On February 2, 1920, E. B. Johnson sold his place tOt appellants; and, in Oonveying same, described it as lot 6.;: block 28, -in B. •F:- Sikes' addition to the - tOwn of RogerS., , The property waS sold through an agOnt, Bill McGarrah.- Oscar Pullen, one of appellants, testified that a "diviSion z fence •waS between the two places at the time he purchaSed lot 6;- that some one told him before he closed the deal thatthere was only forty feet in the Johnson lot; that he mentioned this fact to McG-arrah,-who replied that-. the party was "kidding" him, and, in order to assure him that the lot was. fifty feet wide, took.-him to the .) Clerk's office and showed-him the plät. • Bill -. McGarraV denied -that le made this statement to Pullen-, but, on\the contrary; said he informed him that it was a narrow lot; that he took him to the "clerk's . office in Order to 'get :the correct -number to the lot and not for the purpose ot showing him that the lot was fifty feet wide. On January 21, 1.920, J. H. Goodin sold his home place to appellee, including the strip in question, but, in !onveying same, described the property as lot 3, in block 28, in B. F. Sikes' addition to the town of Rogers. J.
510 P ULLEN 7). COWAN. [163 Goodin testified that, after he- sold the south forty feet off of lot 6 to E. B. Johnson,- his son-in-law, he remained in the open, adverse, continuous possession of the ten-foot strip on the south side of lot 6, claiming title thereto ; that E. B. Johnson made no - claim whatever to the strip ; that, when he sold his home place to appellee, he informed him that the division fence was on his south line. Appel-lee testified that, when he bought J. H. Goodin's home place, he understood the division fence was on the south line of the property, and that he immediately took and retained open, adverse and continuous possession of the property up to the division fence, claiming title thereto. W. R. Fields, Clarence Boyd, and John Kerr each testified that appellee told him he understood he was buying a forty-foot lot, but the plat and deed called for fifty feet, and he intended to hold them to it. Oscar Pullen denied making this .. statement to them. After carefully reading and analyzing the testimony, we are convinced that the finding and decree of the chancery judge is supported by the decided weight of the evidence. Appellants contend, however, that, under the law, a presumption must be indulged that J. H. Goodin held 'possession of the ten-foot strip in question under and in subordination to the legal title of his grantee, E. B. Johnson, and not adversely to him. It is true, the retention of the possession of land by a grantor, after conveying same, is presumed to be for the grantee, but this presumption will not extend over an unreasonable length of time. Such a presumption will only be indulged for a reasonable length of time. In the instant case the presumption was overcome by the great weight of the testimony. No error appearing, the decree is affirmed.
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