458 , ELROD . v. .ELROD. [192 Opinion deliyered M . arch 23, 1936. 1. WORK AND Liiori.—There is, under ordinary .family conditions, ne presumption; that a child . is ;to be paid for services rendered his . parents; on the . .contrary, the presumption is . the . other way placing on one relyirig on a promise to pay, the burden of establishing that fact; and evidence in this case held inSufficient to establish contract. 2. TENANCY IN cOmmoN.—The possession of some of the joint tenants, or:tenants in 'common, is the possession of all and continues
'ARK.] ELROD V. ELROD. 459 .such until there , is some . :act of Duster ,sufficient 'in,.itself to • give . notice that those . in possession, are, claiming in hostility to, and riO t . in conformifY IVA, the rights of others ha. • ;zirig ihtereAs ih the proPerty; * " • ' - • ' ' • • ' Appeal from Saline; ,Chancery .Court Sam . W dar-ratt, Chancellor; affirmed... • • • C..W. Garner,,'0. Piice .aPd.MoDaniels;c6„0row, for :appellants.,: . House, 1Voses. (6 , 'Holmes ,and,,Ri,chard C Butie.r,. for appellees,. , • „ • • . , , • BAKRR,, J. This.suit was: One to quiet title • to a.piece of . real property. situated . in Saline County; which real property was at one:time owned by George.Elrod. George Elrod was the .father. of • John Jf. : Elyoci. and George ail-ton : Elrod-. :The who were plaintiffs in, the trial court, are the children: of John J. ;Elrod, and appel-lees are , children. of : George: Milton Elrod.. ,All . of them claim title to the . said property from • their, grandfather as a. common .source.:.: . . . • . Ueorge .Elrod died in, 1889.: It is. alleged that after he had grown. old he, bought- a piece, of property near his soi4 John .J.. Elrod, in...order :that he migh:t.be taken care of .by John . J..Elrod; with whom . he made an .agreement that upon death of himself and,his, wife, father and mother of John J. Elrod, in consideration:of. caring and providing, for them . in their old, age,. that John J. Elrod . should have his, property.,,: A short time before . the death .of George..Elrod he went to, live in the home of. John Elrod, but, thereafter,. 4!few,thonths , before his: death i .he -moved. f rom that . :place,to,theho,me of his:daughter, Mrs. . McAdams,. and it was • at that :home. that he and: his wife . died. At any rate,:,john J. _Elrod, was left in possession of the real property. owned by, George Elrod at ,the time .of his. death, and continued .in .possession there.of -until .he died in 192 . 6, and some. of ,his, children have remained in possession, since that day.... . , . :Although it is seriously:asserted and urged here that ..John. J..Elrod should be declared . the. owner. by 'reason .of :the services :rendered • by,hina: . to. his father,.:under an agreement that he . should. be compensated.therefor,:under the contract , whereby he was to receive his father's prop-
460 ELROD v. ELROD. [192 erty for such services, John J. Elrod made no effort, after his father died, to perfect title to himself to this property until a short time before he died in 1926. A short time before his death he did make an effort to get quitclaim deeds from some of the kindred. Appellees offered a letter which was said to have been written by John J. Elrod in 1909 to George Milton Elrod, his brother. The letter is as follows : "Dear Brother : I take pleasure in writing you a few lines. This leaves us well, hoping it will find you all the same. Well, Bud, I got a letter from Charlie Lewis the other day to come down and buy Laura's part of this place, or sell my part of it. I went down to see him Sun-day and he says if I will sell him my part he will put it in court at once. And I want the place to cultivate as my land is getting so it will not make anything, but I cannot afford to pay them for my part of the place and pay the rest of the heirs too. And if I sell to them he says he is not going to say anything to the rest of the heirs about it, but just fight it out in the court. He has that account of $250 that he is going to put in against the place and the court will- allow, it to them, and if it will take the whole place to pay it, I will have to pay that account in order to get the place. Now, I want to know who you would rather give your part to, to me or Charlie Lewis. If you cannot come out, let me know at once because I haven't but about 10 days to decide. Come if you can get off and advise me what to do. From your brother, John J. Elrod, Bryant, Arkansas." This letter was written about twenty years after the death of their father. The Charlie Lewis mentioned in the letter is said to be the son-in-law of Mrs. McAdams, the sister of John J. Elrod and George Milton .Elrod. There was some conflicting testimony relative to the alleged contract between father and son in regard to the property. A larger part of the testimony, however, dealt with the proposition of the possession of John J. Elrod and his children during the respective periods, from the date of the death of George Elrod in 1889 to the date of the death of John J. Elrod in 1926, and the possession of the children of John J. Elrod from 1926
ARK.] ELROD v. ELROD. . 461 and the date of the filing of the suit to Opiet title to this property. The decree of the trial court was to the effect that said alleged contract was not satisfactorily proved; that all. of the parties claimed title from a common source, were tenants in common, and that•John.J: Elrod and.his heirs have not held adversely or under such conditions as to give notice of such adverse claim or holding as would set in motion . the statute , of limitations . and therehy bar the claith of the appellees. , It is to correct the •alleged error in this decree that . this appeal:has been proSecuted. We think the chancellor was correct in his findings of fact and .declarations of the law. No useful purpose will be served , by an attempt to set forth and argue the facts in relation to . the alleged Contract for services rendered by the son to his - parents. Conditions seem from the record presented here not materially different from tbose that occnr in many families where the ordinary affections exist, as between parents and children. There is no presUmption under , such conditions that parents expect to pay or that childyen expect to receive compensation for such services. The • presumption is to the contrary. Graves v. -Bowies, 190 Ark. 579, 79 S. W. (2a) 995. It must therefore follow that one relying upon' such contract must be able to establish it by . a preponderance of the evidence, and, failing to do so, cannot recover. It must be evident that when John J. Elrod wrote the letter above set forth, twenty . years after his father died, he himself was not then relying upon any contract whereby his father was to transfer or convey the real propertY to him --- This letter contradicts that theory.. It is true,. as argued in appellant's brief, that his first•cOncern at that time- was about this twenty-year-old claim of $250 made by his sister's son-in-law, which was giving him considerable worry, and on account of which he thought he might have to yield possession of the' property in order' that . this claim might be paid. One 'so . conscientiously concerned about the payment . of this twenty-year-old debt would most probably have been ,believed had he at a proper time asserted his claim of ownership to the property. It is true he was trying to get title to
462 [192 the property just • short time before 'he died; but this , was not by way of denial by hith that others had an interest therein; but rather in recognition of their rights, which he : sought to have Conveyed to'him, It must, per-ferce; aPpear that . nO.substantial right existed undersuch .alleged . contract as appellants . now , set up. • . . T . h e oni V . Vther qUesfioU reniaining in this case is that , of adVerse PoSSesSioh. . The propoSitiohs of s law goVernIng this . situatioh *6 well settled and reCognized. The poSsession Of some of the joint tenants, or tenants in coin-'me h,"is the possession of all, and continues fo be such until there is some act . of Olister sufficient in itself fo giVe notice thatjhose 'hi possession are' claiming hi hostility 'to, and not 'in cohfoi : mity with, the rights Of others having intere§fs hi the property.'Keiih v. Wheele?, 105 .Ark. 318, 151 S. W. 284. One in posse§Sion is preSumed to hOld in reCognition of the.riglith Of his 'cOtenants.. Pettte4-- soli V. Mill6 154 Ark. 124, 241 S. W. 875.. A great nuin-'ber of . cita . tion'sUPport this propo'sition; It is 'Unnece- sr!iqy to extend this Opinion by including them. , A thorough 4amination of this .recor4 iS.convincing 'that the trial court'vas, ,Correct in . his findings of fact and ' deolaratiOnS of law,' and the decree is therefore 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.