#### Bowers v. Rightsell.

Opinion delivered April 25, 1927.

*791 J. F. Wills and Frank Strangways, for appellant.

Robinson, House é Moses, for appellee.

Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for the plaintiff that the decree should be reversed because the plaintiff had a right to maintain his action of ejectment in the circuit court, and that it was reversible error to transfer the case to the chancery court and try it there. It is true that it was held in Trapnall v. Hill, 31 Ark. 345, that, where one tenant in common ousts another, or does some act amounting to a total denial of Ms rights as co-tenant, the latter may maintain ejectment, and, under the statute, may recover his proportion of the rents and profits in the action. It is also held in that case that, in matters of account, especially where a trust exists as between tenants in common, courts of equity exercise concurrent jurisdiction with courts of law. Hence in that case it was held' that, upon a complaint in equity by a tenant in common, alleging an ouster by his co-tenant and praying a.n account of *792the rents- and profits received by him, and possession of his share of the premises, the court will entertain jurisdiction.

The difference between that case and the ease at bar is that, in the former case, the plaintiff elected to sue in equity, and in the present case he elected to sue at law, and the case went to equity over his objections. It will be noted, however, that the plaintiff in his complaint alleged matters, which gave the chancery court jurisdiction. He did not sue for the rents in a lump sum in the way of damages, but prayed judgment "for one-half of any rents and profits said Rightsell may have received from” said land. This amounted to a prayer for an accounting, and, from the allegations of the complaint, it appears that the defendant has been in possession of the land for several years and that he has sold a part of the land to W. Mi Ramsey and put him in possession of the same. Thus it appears that the accounts would run through several years; and the court, in its discretion, might transfer the case to the chancery court for the reason that the accounting could be better settled in a court of equity than by a jury. It is the settled rule in this State that, when a chancery court takes jurisdiction of a case for one purpose, .it will decide all the issues raised by the pleadings.

Moreover, the plaintiff alleges that Rightsell had sold a part of the land to W. M. Ramsey and had .placed him in possession of it. The proof on the part of the defendant, Rightsell, shows that he had erected a filling station on the land at a cost of $1,500. and also a small house. In this connection it may be stated that we are. testing the question of jurisdiction under the allegations of the complaint and the proof offered to establish them. According to the allegations and proof made bv the plaintiff. he was a tenant in common with the defendant, Rightsell. Tt i's well settled in this State -that, in his relation as tenant in common, one has a right to make improvements on the land without the consent of his *793co-tenants; and, although lie has no lien on the land for the value of his improvements, he will be indemnified for them, whether made by himself or those claiming under him, in a proceeding- in equity to partition the land between himself and co-tenants, either by 'having the part upon which the improvements are located allotted to him, or by having compensatioin for them, if thrown into the common mass. Drennen v. Walker, 21 Ark. 539; Dunavant v. Fields, 68 Ark. 534, 60 S. W. 420; and Lemly v. Works, 138 Ark. 426, 211 S. W. 362. The undisputed proof shows that the land was situated near the city of Little Rock and on a public road leading into the city. Rightsell built a small house and, in addition thereto, a filling station, at a cost of $1,500. Under the authorities above cited, Rightsell would have the right in equity to be compensated for these improvements if they could be allotted to him in the division of the land, or, if not, he could he compensated for them, if that could be done without doing- injustice to his co-tenant.

It is true that Rightsell was claiming title to the land by adverse possession, and that his claim of title to the wdiole of the land should be first settled. But, in the event that the court should decide adversely to him, he would have been entitled to have the case transferred to equity to assert his rights to compensation for improvements, under the rule stated. He need not wait until the title to the land was settled before asserting his rights. It is well settled in this State' that a defendant, when sued at law, must make all the defenses he has, both legal and equitable, and, if any of them are exclusively cognizable in equity, he is entitled to a transfer to equity. Daniel v. Garner, 71 Ark. 484, 76 S. W. 1063, and Langless v. McCarthy, 169 Ark. 948, 277 S. W. 27.

It is also well settled that the pleadings in a case may be considered amended so as to conform to the proof. Britton v. Meriwether, 166 Ark. 414, 265 S. W. 364. The undisputed evidence shows that Rightsell made these improvements, and the pleadings should be con*794sidered amended so as to entitle him to be compensated for them in equity.

The result of our views is that the chancery court had jurisdiction of the case on the question of accounting by Rightsell in his fiduciary relation to the plaintiff under the allegations of the complaint, and also in asserting his rights to compensation in equity for the improvements if the plaintiff should prevail as to his claim of title. Hence there was no error in transferring the case to the chancery court and trying it there.

The defendant, Rightsell, asserted title to the land by adverse possession. Daniel Bowers died, leaving his widow, Betty Bowers, and no children. He also left surviving him his mother, Melvina Farmer, and the plaintiff, his brother, and other collateral heirs. His widow became invested with an undivided one-half interest in the land as tenant in common with his brothers and sisters, after the death of his mother. Avera v. Banks, 168 Ark. 718, 271 S. W. 970. According to the allegations of the complaint, the estate was a new acquisition, and Betty Bowers became a tenant in common with the plaintiff and other collateral heirs of Dan Bowers after the death of Melvina Farmer, the mother. Melvina Farmer executed a deed conveying the title to all the land to Betty Bowers, and she in turn conveyed all of the land to the defendant, Rightsell. A conveyance by a co-tenant of the entire estate to a stranger gives color of' title; if possession is taken thereunder,, and the grantee claims the whole, his possession is adverse to the other tenants in common, and- he acquires title by occupancy for the statutory period, except as to those under, disability. Jackson v. Cole, 146 Ark. 565, 226 S. W. 513, and Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537.

It is also well settled that, in order for the possession of a tenant in common to be adverse to that of his co-tenants, knowledge of the adverse claim must be brought home to him directly or 'by such notorious acts of unequivocal character that notice may be presumed. Singer v. Narron, 99 Ark. 446, 138 S. W. 958; and Oliver *795v. Howie, 170 Ark. 758, 281 S. W. 17. In tire case at bar, when Rightsell received his deed from Betty Bowers in 1912 he took possession of the entire tract as his own, and erected a woven wire fence forty-two inches high around it. He put two barbed wires above the woven wire. The plaintiff helped him erect the fence, and has lived within two miles of the place ever since. The evidence for the defendant, Rightsell, shows that he has been in the exclusive adverse possession of the land ever since he received the deed to it in 1912 and has paid the taxes on the land since that time.

The evidence for the defendant shows that he took possession of the land under a deed in January, 1912, which constituted color of title, and has held adverse possession of it ever since, which was more than seven years before this suit was brought. It is true that the plaintiff attempts to contradict his evidence on this point by showing that the fence which the plaintiff helped the defendant build when he took possession of the land in 1912 was broken down in places by soldiers from Camp Pike passing through it in 3917, but we do not think the evidence sufficient for that purpose. It has been repeatedly held by this court, that the actual possession of a part of the land under a deed describing the entire tract is in law possession to the limit of the whole land. Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066, and cases cited; and Moore v. McHenry, 167 Ark. 483, 268 S. W. 858. The undisputed evidence shows that the defendant’s tenants cultivated some parts of the land each year after the defendant took possession of it in January, 1912. The plaintiff could not have been, in any event, prejudiced by the action of the court in transferring the case to chau-cery and trying it there. The result should have been the same whether the case was tried at law or in equity.

It follows that the decree of the chancellor was correct, and must be affirmed.