Garland Trice Jr. v. Eoies Trice and Ocie Trice

. It is ordinarily

sufficient proof of adverse possession that the claimant’s acts of ownership are of such a

nature as one would exercise over his own property and would not exercise over the land

of another.

Additional factors come into play when one cotenant asserts adverse possession

against the others because the possession of one tenant-in-common is the possession of all.

. Because possession by a cotenant is not ordinarily adverse to other

cotenants, each having an equal right to possession, a cotenant must give actual notice to

other cotenants that his possession is adverse to their interests or commit sufficient acts of

7 hostility so that their knowledge of his adverse claim may be presumed.

. The statutory period of time for an adverse-possession claim does not begin to run

until such knowledge has been brought home to the other cotenants.

. There is no hard-and-fast rule by which the sufficiency of an adverse-possession claim

may be determined; however, we consider factors such as the relationship of the parties,

their reasonable access to the property, kinship, and innumerable other factors to determine

if nonpossessory cotenants have been given sufficient warning that the status of a cotenant

in possession has shifted from mutuality to hostility.

at 316–17,

When there is a familial relation between cotenants, stronger evidence of adverse possession

is required.

Id. at 317

2019 Ark. App. 186, at 19

Garland Jr. first argues that Eoies and Ocie did not have color of title because Trenton

did not have color of title—he had deeded his interest in the property to his siblings. In

Bailey v. Jarvis,

212 Ark. 675, 680

208 S.W.2d 13, 15

(1948), the supreme court defined

the meaning of “color of title” by adopting the following language from a West Virginia

decision:

Color of title is not, in law, title at all. It is a void paper, having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title. Its chief office or purpose is to define the limits of the claim under it. Nevertheless, it must purport to pass title. In form, it must be a deed, a will, or some other paper or instrument by which title usually and ordinarily passes.

(citing State v. King,

87 S.E. 170, 171

(W.V. 1915)).

In the case at bar, the evidence demonstrates that Trenton had color of title to the

property. The 1949 decree awarded him an undivided one thirty-fifth interest in the

property, and Trenton’s interest in the property would have been passed down to Eoies and

8 Ocie. To the extent that Trenton gave some or even all of his interest in the property to his

siblings in the 1980s via warranty deeds, the record also demonstrates that three of these

siblings later granted their interest in the property to Eoies and Ocie. Therefore, we hold

that the circuit court did not clearly err in finding that Eoies and Ocie have color of title to

the property.

Second, Garland Jr. argues that Eoies and Ocie failed to pay ad valorem taxes on the

property required by Arkansas Code Annotated section 18-11-106(a)(1)(A) (Repl. 2015).

We disagree. The record reflects that Trenton and Eoies had paid all the taxes on the

property from the 1950s to 2014. The circuit court acknowledged testimony from Garland

Sr.’s children that they had contributed to the payment of taxes on the property over the

years; however, the court discounted this testimony on the basis of a lack of proof introduced

to support the testimony. Credibility determinations are left to the circuit court, and we

will not reweigh the evidence. Williams v. Williams,

575 S.W.3d 156, 166

Garland Jr. also argues under this point that because it is undisputed that Essie Hewett

paid the 2015 taxes on the property, Eoies and Ocie failed to pay taxes for seven consecutive

years immediately prior to this action. Garland Jr. is mistaken. Section 18-11-106(a)(1)(A)

does not require that the seven-year period be immediately prior to the quiet-title action.

Section 18-11-106(a)(1)(A) states that a claimant must hold “color of title to the real

property for a period of at least seven (7) years and during that time paid ad valorem taxes

on the real property.” Here, evidence was presented that Eoies had paid ad valorem taxes

9 on the property during the relevant period of 2005 to 2014, which exceeds the required

seven-year period.

Next, Garland Jr. claims that the circuit court clearly erred in finding that Eoies and

Ocie placed all the cotenants on notice of their adverse-possession claim for the required

statutory time period. In his brief, the entirety of his argument is that “it is undisputed that

notice wasn’t made on all cotenants (either by mail or warning order) until September 2018

. . . . As such, the statutory time period for adverse possession has not yet expired.” Garland

Jr. fails to cite any authority to support this one-paragraph argument, and we reject it.

Our case law provides that a cotenant must give notice to other cotenants that his

possession is adverse to their interests in one of two ways: either give actual notice or commit

sufficient acts of hostility so that the cotenant’s knowledge of the adverse claim may be

presumed. Trice,

91 Ark. App. at 316

2019 Ark. App. 186, at 19

. It is undisputed that Garland Sr.’s

heirs had actual knowledge of Eoies and Ocie’s adverse-possession claim. In Derryberry v.

Sims,

267 Ark. 846, 846

591 S.W.2d 662, 663

(1979), the following issue was presented:

“Does the filing of a complaint to quiet title on the basis of adverse possession satisfy the

requirement of actual notice of plaintiff’s claim of exclusive ownership to persons claiming

to be cotenants?” The supreme court held: “[W]e can think of no more unequivocal way

of conveying notice than by filing a suit to quiet title.”

Id. at 848

591 S.W.2d at 663

Accordingly, Garland Sr., who was a party to the 1997 lawsuit along with his successors in

interest, had actual notice of Eoies and Ocie’s adverse-possession claim in 2005 at the latest. 10

10 Three of Garland Sr.’s heirs conceded this point at trial. Garland Jr. testified he was very familiar with the 1997 lawsuit his father filed against Trenton, and his siblings Ernest

10 Further, as it relates to the unknown heirs of Robert Slaughter, contrary to Garland

Jr.’s argument, our case law does not provide that service by warning order is required to

presume actual knowledge of an adverse-possession claim. Actual knowledge can be

presumed by other means, and the circuit court in this case identified a different means of

presuming actual knowledge. The circuit court found that Eoies and Ocie’s filing of the

adverse-possession claim in the 1997 case was an act of hostility sufficient to presume that

the unknown heirs of Robert Slaughter had actual knowledge of the adverse claim. We

discern no practical difference between presuming actual knowledge from the constructive

notice afforded by warning-order service to an out-of-state cotenant and presuming actual

knowledge from the publication of a 2005 opinion of this court. Accordingly, we hold that

the circuit court did not clearly err in finding that Eoies and Ocie gave the required notice

of their adverse-possession claim to the property. 11

Finally, Garland Jr. argues that the circuit court clearly erred in finding that Eoies

and Ocie have been in sole possession and control of the property. The circuit court found

and Essie Hewett both testified they were aware of the adverse-possession claim in 2005 when this court handed down its decision from the 1997 lawsuit. 11 On the issue of notice, the dissents correctly point out that the circuit court made an incorrect finding of fact when it stated in its decree that “Petitioners and Third-party Defendants are the heirs of Garland Trice, Ethel Trice, Mattie Mason and [Marguerite] Dorsey.” This finding is erroneous because it concludes that the unknown heirs of Robert Slaughter are the descendants of Essie Trice (the ancestor of Garland Trice Sr., Ethel Trice, Mattie Mason, and Marguerite Dorsey). However, this error is incidental and does not mandate reversal because it has no effect on the circuit court’s dispositive finding that Eoies and Ocie provided the required notice of their claim of adverse possession to all the cotenants. As explained above, both the heirs of Essie Trice and the unknown heirs of Robert Slaughter were given actual notice or were presumed to have been given actual notice of Eoies and Ocie’s claim of adverse possession.

11 that since 2005, Eoies and Ocie have been exercising sole control over the property by

maintaining, farming, improving, leasing, and protecting it. There was substantial testimony

from Eoies and Ocie to support this finding. In addition, a 2016 farming lease was

introduced into evidence. Further, there was evidence that in 2008, Essie Hewett asked

Eoies and Ocie to share the lease proceeds, and they told her no. There was evidence that

Ernest asked Eoies and Ocie two and three times a year until about two years ago to share

the property, and they told Ernest no—Ocie told Ernest to “get a lawyer.” And finally,

Ocie filed a claim for adverse possession of the property in the 1997 litigation—a significant

act of hostility against the cotenants.

Garland Jr. and his siblings did testify that they were on the property monthly, they

cut wood on the property, took pictures while on the property, and were never asked to

leave the property. Again, the circuit court did not have to believe this testimony. Garland

Jr. is asking this court to reweigh the credibility findings made by the circuit court, which

we will not do. Williams,

575 S.W.3d at 166

. Therefore, we

hold that the circuit court did not clearly err in finding that Eoies and Ocie were in sole

possession and control of the property.

For the reasons stated, we hold that the circuit court’s adverse-possession finding is

not clearly erroneous, and we affirm.

Affirmed.

HARRISON, C.J., and GLADWIN and MURPHY, JJ., agree.

WHITEAKER and HIXSON, JJ., dissent.

12 APPENDIX A- R.H. SLAUGHTER HEIRS

R.H. Slaughter

Captola Miller Henry Robert Ollie Ketchum Beatrice Dean Essie Trice (Charley) Slaughter Slaughter

2 unknown John Trice Garland Trice Marguerite Trenton Trice Dorothea Trice Ethel Green Mattie Mason heirs (Lenora) Sr. Dorsey

Garland Trice Essie Trice- 11 other Eoies Trice Ocie Trice Irma Jean Kalven Trice Ernest Trice Jr. Hewit children PHILLIP T. WHITEAKER, Judge, dissenting. I join the dissenting opinion of

Judge Hixson. I write separately to set forth the three reasons why I respectfully disagree

with the majority opinion.

First, the circuit court made an incorrect finding of fact. It incorrectly determined

that the unknown heirs of Robert Slaughter are heirs of Essie Trice. As Judge Hixson points

out in his opinion, this finding is clearly erroneous and should mandate our reversal.

Second, the circuit court erred in determining that all heirs of Essie Trice received

notice of hostility. Specifically, the circuit court found that Eoies and Ocie’s filing of the

adverse-possession claim in the 1997 case was an act of hostility sufficient to presume that

the unknown heirs of Robert Slaughter had actual knowledge of the adverse claim. The

majority opinion affirms stating, “We discern no practical difference between presuming

actual knowledge from the constructive notice afforded by warning-order service to an out-

of-state cotenant and presuming actual knowledge from the publication of a 2005 opinion

of this court.”

I do see a practical difference. The presumption of actual knowledge from the

constructive notice provided by warning order is statutory. The presumption of actual

knowledge from the publication of an appellate decision is not. Here, the unknown heirs

of Robert have owned an undivided interest in one-half of the property since the 1985

consent decree; and while they have been named parties in the dispute for years, there is no

evidence in our record that they were ever served with a warning order in either the 1985

or 1997 litigation or that they have ever appeared in any of the four litigations over this

property. Thus, on our record, there is simply no evidence that the unknown heirs of Robert had any actual or constructive knowledge of the prior litigation. Despite this, the

majority opinion concludes that the unknown heirs of Robert were placed on notice by a

2005 published opinion from this court that stems from that prior litigation. I cannot agree.

I do not believe that this satisfies due process. Rather, it appears to create a reverse definition

of insanity: keep doing the same thing over and over and eventually you will get a different

result.

Third, we previously reversed a finding of adverse possession on essentially the same

facts in our earlier Trice opinion. I see no significant factual distinction between the facts

presented in this current round of litigation from that previously presented in Trice. To

reverse and to affirm on essentially the same set of facts between the same parties is to render

inconsistent opinions.

KENNETH S. HIXSON, Judge, dissenting. A legal opinion, much like a structure,

can only remain standing if it is constructed on a strong foundation. If the foundation fails,

the opinion fails. Here, the majority opinion is constructed on a faulty, unsupported, and

incorrect finding of fact by the circuit court. Hence, much like a structure collapsing with

a faulty foundation, the majority opinion collapses as well. For the first time, this court has

approved stripping a cotenant of ownership of property without notice, either actual or

presumed, as required by law. Therefore, I would reverse.

While several of the facts in the case are in dispute, one fact is not. In 1985, the

circuit court entered a consent order and concluded that the property 12 in dispute was

12 Actually, the property was divided into five tracts. The court concluded the following: Tract 1 ownership is Robert Slaughter’s Unknown Heirs 50% and Essie Slaughter Trice’s Heirs 50%; Tract 2 ownership is Robert Slaughter’s Unknown Heirs 75% and Essie

15 owned in two shares by a son and a daughter of R.H. Slaughter. The court generally

concluded that the unknown heirs of son, Robert Slaughter, 13 own a one-half interest, and

the heirs of daughter, Essie Slaughter Trice (Essie Trice), own a one-half interest. That fact

has not changed since 1985, and it has remained a fact up to the date of the trial in the

circuit court below. Every single person in this case litigating the ownership of this property

is an heir of Essie Trice. None of the persons litigating are the unknown heirs of Robert

Slaughter. 14 Without the unknown heirs of Robert Slaughter receiving the proper notice

of hostility for at least seven years before any claim for adverse possession, the only

ownership the heirs of Essie Trice could possibly be fighting over is her one-half interest in

the disputed property.

The faulty, unsupported, and incorrect (and fatal) finding of fact by the circuit court

is this. In determining whether all parties had the requisite notice of hostility or notice of

Slaughter Trice’s Heirs 25%; Tract 3 ownership is Robert Slaughter’s Unknown Heirs 50% and Essie Slaughter Trice’s Heirs 50%; Tract 4 ownership is Essie Slaughter Trice’s Heirs 100%; and Tract 5 ownership is Robert Slaughter’s Unknown Heirs 50% and Essie Slaughter Trice’s Heirs 50%. However, for purposes of this dissent, this division is irrelevant, and the interests are generally referred to herein as a one-half interest for each sibling. 13 In the 1950s, two sons of Robert Slaughter moved to Chicago. They have not been heard from since. These two sons and their heirs, if any, are the “unknown heirs of Robert Slaughter.” They have never participated in any of the litigations set forth in the majority opinion. 14 The unknown heirs of Robert Slaughter were later brought into the litigation as third-party defendants when a notice of quiet-title action was published in the Courier-Index newspaper naming multiple heirs of Essie Trice and included “any survivors of Robert H. Slaughter, deceased.” The publication noticed any persons or entities claiming any title or interest in the real property to appear at the November 14, 2018, trial to assert any interest and demonstrate “why title to this property should not be quieted and confirmed in Counter-Claimants/Third-Party Plaintiffs Eoies Trice and Ocie Trice.”

16 adverse possession, the circuit court incorrectly determined that the unknown heirs of

Robert Slaughter were actually heirs of his sister, Essie Trice. Specifically, the court found

the following: “At that time, the Third-Party Defendants and Petitioners, as descendants of

Garland Trice, Ethel Trice, Mattie Mason and Margaret Dorsey who now claim interest

through their ancestors, were all placed on notice that Trenton Trice and his heirs claimed

this property by adverse possession.” Without a doubt, this finding is clearly erroneous and

should mandate our reversal.

However, that is not the only error requiring reversal. The majority opinion affirms

the finding of the circuit court that all heirs of Essie Trice received notice of hostility. That

is also in error. With this short introduction, I will more fully explain my disagreement

with the majority.

While the majority opinion correctly outlines the voluminous heirs of R.H.

Slaughter, a succinct summary of the players may be helpful. R.H. Slaughter had six

children. However, only two of his children left descendants. His son, Robert Slaughter,

had two sons; and his daughter, Essie Trice, had seven children.

The two sons and heirs of Robert Slaughter moved to Chicago in the 1950s and

have not been heard from since. A list of the heirs of Essie Trice was attached to a probate

pleading. This list contained the identity of forty-seven heirs and their addresses. The heirs

were scattered throughout Arkansas, Illinois, Michigan, Missouri, and other parts of the

United States. These heirs included, but were not limited to, appellees Eoies Trice and

Ocie Trice, and appellant Garland Trice, Jr. These forty-seven persons, as heirs of Essie

Trice, were cotenants of this property along with the heirs of Robert Slaughter.

17 As we have previously explained in other cases, a mere lapse of time will not dissolve

a co-tenancy. Wood v. Wood,

51 Ark. App. 47

908 S.W.2d 96

(1995). Additional factors

come into play when one cotenant asserts adverse possession against the others because the

possession of one tenant in common is the possession of all. Trice v. Trice,

91 Ark. App. 309

210 S.W.3d 147

(2005). Because possession by a cotenant is not ordinarily adverse to

other cotenants, each having an equal right to possession, a cotenant must give actual notice

to other cotenants that his possession is adverse to their interests or commit sufficient acts of

hostility so that their knowledge of his adverse claim may be presumed.

The statutory

period of time for an adverse-possession claim does not begin to run until such knowledge

has been brought home to the other cotenants.

There is no hard-and-fast rule by which

the sufficiency of an adverse claim may be determined; however, we consider factors such

as the relationship of the parties, their reasonable access to the property, kinship, and

innumerable other factors to determine if nonpossessory cotenants have been given sufficient

warning that the status of a cotenant in possession has shifted from mutuality to hostility.

When there is a family relation between cotenants, stronger evidence of adverse

possession is required.

The dispossession of the cotenant is a question of fact, and we

will not reverse the circuit court’s decision absent a showing that it was clearly erroneous.

Sherman v. Wallace,

88 Ark. App. 229

197 S.W.3d 10

(2004).

As stated above, Essie Trice had seven children. This case commenced as infighting

among the heirs of Essie Trice. One set of her heirs claimed the property should be

partitioned, sold, and the proceeds distributed among all her heirs, and another set of her

heirs claimed ownership by adverse possession. Garland Trice, Jr., an heir of Essie

Trice 18

(from the partitioning camp), argues on appeal that the seven-year statutory time period for

adverse possession has not yet expired because the statutory period of time for an adverse-

possession claim does not begin to run until such knowledge of hostility has been brought

home to all other cotenants. He alleges that the evidence Eoies Trice and Ocie Trice—as

heirs of Essie Trice (from the adverse-possession camp)—presented at trial in the current

litigation did not show they had provided notice by mail, warning order, or otherwise to

all cotenants until September 2018 when they issued the warning order. 15 Because a

cotenant must give actual notice to other cotenants that his possession is adverse to their

interests or commit sufficient acts of hostility so that their knowledge of his adverse claim

may be presumed, the statutory period of time for an adverse-possession claim does not

begin to run until such knowledge is brought home to the other cotenants.

Trice, supra.

Therefore, with this standard, we must answer the following two questions: (1) whether the

adverse possessors gave actual notice to other relative cotenants that their possession was

adverse to their interests or committed sufficient acts of hostility so that their knowledge of

their adverse claim may be presumed; and (2) when was this notice of intent to claim adverse

possession given to the relative cotenants so as to commence the seven-year adverse-

possession period. In other words, in order for Eoies Trice and Ocie Trice to prevail in the

current claim for adverse possession, they were required to show that they gave sufficient

warning to all the nonpossessory relative cotenants that their possession had shifted from

mutuality to hostility and that their notice was given at least seven years prior to the filing

of this litigation in 2016.

15 See footnote 3.

19 In answering these questions, it is helpful to recall the previous 1997 litigation

culminating in our 2005 Trice opinion. There, we reversed and dismissed the adverse-

possession counterclaim and provided the following analysis:

There was testimony that Trenton claimed ownership of all of the land, farmed the property, made improvements on it, leased it, paid taxes on it, and exercised exclusive control over it since the 1950s. However, because a tenant in common is presumed to hold the property in recognition of the rights of his co-tenants, all of these acts were consistent with the types of action a co-tenant—especially a family member—can take without giving notice of an adverse claim to his co-tenants. We acknowledge that testimony was presented indicating that Trenton issued several deeds to the property. However, no deeds were introduced reflecting these conveyances. Based on this lack of proof, the trial court refused to find “that the conveyances actually occurred.” Despite this finding, the trial court went on to conclude that the fact that Trenton made these conveyances was an important sign of his sole ownership of the property. In our analysis, we resolve this contradiction by giving no weight to the alleged conveyances based on the trial court’s refusal to recognize that Trenton actually conveyed the property.

Therefore, we are left with the testimony that Garland was forced to leave the property on a couple of occasions as the only persuasive proof of an adverse action against a co-tenant. However, Garland was only one of the potentially large number of co- tenants, and, in the absence of evidence showing acts of hostility toward the other co-tenants, Garland’s removal from the property cannot be characterized as anything other than an adverse act against a singular co-tenant. Further, as discussed previously, the various interests in the property have not been sufficiently identified. Thus, it would be very difficult, if not impossible, to prove actual notice to or hostile acts against unidentified co-tenants. We are convinced that the evidence of Trenton’s adverse possession claim falls short of the heavy burden that a family-member co-tenant must satisfy to establish adverse possession against his co-tenants. Therefore, we hold that the trial court’s finding of adverse possession is clearly erroneous, and we reverse and dismiss on this issue.

Trice,

91 Ark. App. at 317

, 210 S.W.3d at 152–53 (emphasis added). That begs the question:

Why does this current Trice case render a different and inconsistent result vis-à-vis the 2005

Trice case? The 2005 Trice opinion reversed the finding of adverse possession citing a lack

of notice to all cotenants; however, the majority in this case affirms a finding of adverse

possession concluding all cotenants were notified. Why the opposite result? So, one should

inquire, what new evidence did Eoies Trice and Ocie Trice present at this trial to show that

20 they gave actual notice to the other relative cotenants that their possession was adverse to

the other relative cotenants’ interests or that they committed sufficient acts of hostility so

that the other relative cotenants’ knowledge of their adverse claim may be presumed? Using

our language in the 2005 Trice opinion: Did Eoies Trice and Ocie Trice satisfy the “very

difficult, if not impossible, [burden] to prove actual notice to or hostile acts against

unidentified co-tenants?” Trice,

91 Ark. App. at 317

210 S.W.3d at 153

The evidence presented at the present trial was very similar to the evidence presented

in the 1997 litigation. Eoies Trice and Ocie Trice testified that they paid taxes, rented the

property, and collected rent for themselves just as their father, Trenton Trice, had done in

the 1997 litigation before he died. That was not deemed enough then; nor should it now.

Although the fact Trenton Trice issued a couple of deeds to the portions of the property to

his siblings was discussed in the 2005 opinion, we did not consider that evidence then

because the deeds had not been introduced into evidence at the previous trial. The deeds

were introduced into evidence at the trial here. Those deeds, however, should not alter

our decision. We held in Trice that evidence of hostility against one or two cotenants is not

sufficient to prove hostility against all cotenants. Furthermore, we have previously held that

a cotenant is not expected to check the records constantly to determine whether instruments

affecting title have been executed. See Mitchell v. Hammons,

31 Ark. App. 180

792 S.W.2d 333

(1990). In Mitchell, we held that evidence of a deed “containing the false recital of

heirship from [two cotenants] to themselves” and one cotenant leasing the property in

question were not actions so notorious that notice may be presumed. Mitchell,

31 Ark. App. 21

at 185,

792 S.W.2d at 336

. Again, the evidence presented here is just as insufficient as it

was in the 1997 litigation.

Eoies Trice and Ocie Trice did not provide evidence that they restricted the heirs

from having access to the property if they visited nor were they making permanent and

valuable improvements as was the case in Ueltzen v. Roe,

242 Ark. 17

411 S.W.2d 894

(1967). In fact, they testified that no one resided on the property for approximately forty-

one years since 1975, and there were no buildings on the property. Instead, their actions

were similar to the insufficient actions in Hopper. There, we held that the payment of taxes,

sale of timber, appearance before a board of equalization to attempt a reduction in property

taxes, or a lease of the land or minerals did not bring home to an out-of-

state cotenant knowledge of hostile acts. Hopper v. Daniel,

72 Ark. App. 344

38 S.W.3d 370

(2001). And, as we stated in in the 2005 Trice opinion, “[A]ll of these acts were consistent

with the types of action a co-tenant—especially a family member—can take without giving notice of an

adverse claim to his co-tenants.” Trice,

91 Ark. App. at 317