#### Ball v. Messmore.

5-916

289 S. W. 2d 183

Opinion delivered April 16, 1956.

John B. Driver, for appellant.

W. J. Cotton, for appellee.

G-bobge Rose Smith, J.

This is a suit by the ap-pellee to quiet his title to 170 acres of land. The appellants intervened and asked that they he permitted to show title in themselves to part' of a twenty-acre tract that was claimed in its entirety by the appellee. The suit became in substance a boundary line dispute and resulted in a decree fixing the boundary along an old fence line that crosses the tract. The appellants contend that the line should have been fixed along a branch that runs through the. tract.

The decree is in accordance with the weight of the evidence. Neither side established, or even attempted to establish, a perfect record title to the land. The chancellor, in rejecting the appellee’s assertion of title to the entire twenty-acre parcel, found that the appellants and their predecessors in title had been for more than seven years in adverse possession of that part of the tract lying south and east of the fence line. The decree accordingly quieted the appellants’ title to that portion of the land. The chancellor confirmed the appellee’s title *257to the unimproved portion lying outside the fence upon proof of tax payments for more than seven years under ■color of title. Ark. Stats. 1947, § 37-102. ¡v: i

In claiming more land than the chancellor awarded them the appellants rely upon the testimony of several witnesses who say that the branch has long been understood to be the line. This testimony may be true, but it falls short of establishing a record title, or adverse possession, or an agreed boundary line, or any other fact of substantive importance. It shows at most the existence of a general belief about the line, but of course such a belief could not have the effect of vesting or divesting the title to real property.

The appellants think the chancellor erred in allowing the appellee to use affidavits as proof, in spite of the fact that the appellants intervened and contested the case. Ark. Stats., § 34-1906. It is true that affidavits were attached to the complaint; but the trial was heard upon testimony adduced in open court, and there is nothing to indicate that the chancellor gave any weight to the affidavits in the record. In any event we try the case de novo, and without regard to the affidavits the decree is supported by the preponderance of the testimony.

A third contention is that equity does not have jurisdiction to quiet the title to land not in the plaintiff’s possession. The land outside the fence, however, either was in the plaintiff’s possession or was wild and unimproved, so that the case necessarily falls within the court’s jurisdiction. Ark. Stats., § 34-1901.

Affirmed.