{ "id": 1614156, "name": "Franklin v. Hempstead County Hunting Club", "name_abbreviation": "Franklin v. Hempstead County Hunting Club", "decision_date": "1950-03-27", "docket_number": "4-9144", "first_page": "927", "last_page": "932", "citations": [ { "type": "official", "cite": "216 Ark. 927" }, { "type": "parallel", "cite": "228 S.W.2d 65" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "197 Ark. 727", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723551 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0727-01" ] }, { "cite": "109 S. W. 541", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "85 Ark. 520", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523306 ], "opinion_index": 0, "case_paths": [ "/ark/85/0520-01" ] }, { "cite": "3 S. W. 2d 11", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "176 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399901 ], "opinion_index": 0, "case_paths": [ "/ark/176/0225-01" ] }, { "cite": "33 S. W. 953", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "61 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902364 ], "opinion_index": 0, "case_paths": [ "/ark/61/0527-01" ] }, { "cite": "3 Am. St. Rep. 218", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "2 S. W. 705", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "48 Ark. 135", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887765 ], "opinion_index": 0, "case_paths": [ "/ark/48/0135-01" ] }, { "cite": "198 Ark. 776", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459795 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0776-01" ] }, { "cite": "212 Ark. 85", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470260 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/212/0085-01" ] }, { "cite": "120 S. W. 2d 574", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "196 Ark. 1177", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "197 Ark. 85", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718191 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0085-01" ] }, { "cite": "174 S. W. 562", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "117 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564898 ], "opinion_index": 0, "case_paths": [ "/ark/117/0321-01" ] }, { "cite": "132 S. W. 649", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541946 ], "opinion_index": 0, "case_paths": [ "/ark/96/0564-01" ] }, { "cite": "227 S. W. 23", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "147 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1583233 ], "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/ark/147/0184-01" ] }, { "cite": "137 S. W. 2d 253", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "199 Ark. 1051", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456623 ], "opinion_index": 0, "case_paths": [ "/ark/199/1051-01" ] } ], "analysis": { "cardinality": 468, "char_count": 7313, "ocr_confidence": 0.524, "pagerank": { "raw": 2.099652201444767e-07, "percentile": 0.761641701890728 }, "sha256": "018579cc5d47d56627f637fe0552dbe470eddc7124aa254ff232c9e863850ba0", "simhash": "1:22a09197540fe0a2", "word_count": 1272 }, "last_updated": "2023-07-14T19:41:58.287119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice McFaddin, not participating." ], "parties": [ "Franklin v. Hempstead County Hunting Club." ], "opinions": [ { "text": "Holt, J.\nAppellee brought this action for partition of a forty-acre tract of land in Hempstead County. The complaint alleged that appellants, by deed January 7, 1929, conveyed to Gr. P. Casey and J. O. A. Bush an undivided % interest in the land, that appellants retained and owned the remaining % interest, and that later Casey conveyed his % interest to appellee.\nIn an answer and cross-complaint, appellants interposed a general denial, claimed sole ownership of the forty-acre tract, and affirmatively pleaded laches, estoppel and limitations as a complete bar, and further that appellant, Hettie Franklin, was without mental capacity to execute the above deed.\nA trial resulted in a decree for appellee. The court found that the tract was not subject to division in kind and tliat it should be sold and the proceeds divided in accordance with the prayer of appellee\u2019s complaint. From the decree is this appeal.\nThe record reflects that on January 7, 1929, appellants executed a Quit Claim Deed to Gr. P. Casey and J. O. A. Bush, by which they conveyed to them for \u201cone dollar ($1.00) and other good and valuable considerations an undivided % interest in the land in question.\u201d J. O. A. Bush died some time after this deed was executed by appellants. Appellee, Hunting Club, purchased Gr. P. Casey\u2019s interest.\nFor reversal, appellants say that there are \u201cbut two vital issues:\u201d 1. \u201cWas the instrument called a Quit Claim Deed executed January 7, 1929, a bona fide deed in the truest sense, with all of the purported grantors knowing what they were signing, with a full, fair and clear knowledge of its intended consequences,\u201d and for a valuable consideration? 2. \u201cIf the instrument executed January 7, 1929, was a Quit Claim Deed properly executed . . ., then, were the grantees of J. O. Bush and Gr. P. Casey guilty of laches,\u201d and estopped to assert any rights to the property at this late date?\nThe Quit Claim Deed in question is regular in form and recites a valuable consideration. It was properly acknowledged and recorded about four days after its execution. No fraud in its procurement was alleged or shown. Appellants are in the attitude of attempting to invalidate or impeach this deed which purports to have been executed, signed and acknowledged by each of them. They could do this only by clear, cogent and convincing evidence, which, after reviewing the testimony, we hold they have failed to do.\nIn Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253, we said: \u201cBefore we would be warranted in setting aside the solemn recitals in a deed, a written instrument signed and acknowledged, the quantum of testimony required must rise above a preponderance. of the testimony. To do this the evidence must be clear, cogent and convincing. A mere preponderance is not sufficient.\n\u201cIn Morris v. Cobb, 147 Ark. 184, 190, 227 S. W. 23, this court said: \u2018Again, appellant is in the attitude of impeaching the deed purported to have been executed and acknowledged by him. He could only do this by clear, cogent and convincing evidence. Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Polk v. Brown, 117 Ark. 321, 174 S. W. 562. His evidence does not meet this requirement.\u2019\n\u201cAnd in the recent case of Burns v. Fielder, 197 Ark. 85, 122 S. W. 2d 160, this court said: \u2018 The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d 574, such evidence must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people. \u2019 \u2019 \u2019\nWe further hold, after reviewing the testimony, that appellants have failed to sustain, by a preponderance thereof, their contention that Hettie Franklin was without mental capacity when she executed the deed, along with the other appellants. See Wilson v. Wilson, 212 Ark. 85, 204 S. W. 2d 878.\nAppellants\u2019 contention that appellee has been guilty of laches, and further that they (appellants) have acquired title by adverse possession, can not be sustained.\nIt is conceded that appellants have held possession and remained on this tract of land since the execution of the deed in 1929, and for many years prior' thereto. However, the preponderance of the evidence falls short of .showing that appellee, in the circumstances, was guilty of laches or that appellants\u2019 holding was adverse or hostile to appellee\u2019s interest.\n\u201cThe doctrine of laches which is a species of estoppel rests upon the principle that, if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. . . . Mere lapse of time before bringing suit, without change of circumstances or in the relation of the parties, will not constitute ladies. Not only must there have been unnecessary delay, but it must appear that, by reason of the delay, some change has occurred in the condition or relation of the parties to the property which would make it inequitable to enforce the claim. So long as the parties are in the same condition, a claim for land may be asserted within the time allowed by law.\u201d Stewart v. Pelt, 198 Ark. 776, 131 S. W. 2d 644.\nThe rule is well settled that: \u201cThe right of each to occupy the premises is one of the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The occupation of one so long as he does not exclude the other, is but the exercise of a legal right. If for any reason one does not choose to assert-the right of common enjoyment, the other is not obliged to stay out.\u201d Hamby v. Wall, 48 Ark. 135, 2 S. W. 705, 3 Am. St. Rep. 218.\n\u201c \u2018It is . . . from the nature of the estate that a tenant in common of land, in the enjoyment of his rights, must necessarily, prima facie, be in possession of the whole.\u2019 Angell, Lim. 429. \u2018The possession, therefore, of one tenant in common is the possession of all.\u2019 \u201d McKneely v. Terry, 61 Ark. 527, 33 S. W. 953.\n\u201cFor the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed.\u201d Hardin v. Tucker, 176 Ark. 225, (Headnote 2), 3 S. W. 2d 11.\nThere was evidence that appellee claimed an interest in the land and that appellants recognized appellee\u2019s interest. Of significance is the fact that appellants paid appellee part of the proceeds from the crops produced on the land.\nThe rule is well established that \u201cretention of the possession of vendors after the execution and delivery of a deed is presumed to be in subordination of the title conveyed and the statute of limitations will not begin to run until notice of the hostility of their claim is actually given to the grantee. This rule was well stated in the case of City of Stuttgart v. John, 85 Ark. 520, 109 S. W. 541. We do not think this presumption was overcome by a preponderance of the evidence.\u201d Daniels v. Moore, 197 Ark. 727, 125 S. W. 2d 456.\nAs indicated, on the whole case, finding no error, the decree is affirmed.\nJustice McFaddin, not participating.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "L. L. Mitchell, for appellant.", "W. S. Atkins, for appellee." ], "corrections": "", "head_matter": "Franklin v. Hempstead County Hunting Club.\n4-9144\n228 S. W. 2d 65\nOpinion delivered March 27, 1950.\nL. L. Mitchell, for appellant.\nW. S. Atkins, for appellee." }, "file_name": "0927-01", "first_page_order": 951, "last_page_order": 956 }