{ "id": 1672661, "name": "Eva PASCALL v. Stanley E. SMITH", "name_abbreviation": "Pascall v. Smith", "decision_date": "1978-06-26", "docket_number": "77-102", "first_page": "428", "last_page": "431", "citations": [ { "type": "official", "cite": "263 Ark. 428" }, { "type": "parallel", "cite": "569 S.W.2d 89" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "243 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719442 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0272-01" ] }, { "cite": "231 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697191 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/ark/231/0506-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0198-01" ] }, { "cite": "253 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627339 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/253/0131-01" ] }, { "cite": "262 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675958 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0523-01" ] } ], "analysis": { "cardinality": 393, "char_count": 5547, "ocr_confidence": 0.91, "pagerank": { "raw": 1.6079402875148242e-07, "percentile": 0.6850808676490405 }, "sha256": "c5c700d3d44776af976ef6f6dfd5527d1dc80e92ac146fd8c784642a0a4db91f", "simhash": "1:e1e8aa15d1ac3391", "word_count": 959 }, "last_updated": "2023-07-14T19:12:30.639178+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Eva PASCALL v. Stanley E. SMITH" ], "opinions": [ { "text": "Frank Holt, Justice.\nAppellee commenced this action to quiet title in certain land, which he held as a tenant by the entirety with his divorced wife, on the ground that he had acquired title of the property by adverse possession. Alternatively, he sought partition or sale of the land. At the close of appellee\u2019s evidence on his claim of title by adverse possession, appellant demurred to the evidence on the basis that the appellee failed to prove the date upon which any alleged actual notice was communicated to her that he was claiming adversely to her one-half interest. The court overruled the demurrer. Appellant appealed that order to this court and we dismissed it without prejudice because the order was not appealable. Pascall v. Smith, 262 Ark. 523, 558 S.W. 2d 150 (1977). Upon remand appellant elected to stand on her demurrer to the evidence. The chancellor overruled the demurrer and awarded the property to the appellee on the basis of his claim of adverse possession. Appellant first asserts the court erred in failing to sustain her demurrer to the evidence.\nAppellant argues the primary issue on this appeal is: \u201c[M]ust the appellee, in order to present a prima facie case, offer some proof as to the date or time when the appellee [as cotenant] placed the appellant on actual notice that he was claiming adversely?\u201d Appellant asserts that the appellee failed to make a prima facie case for adverse possession because there was no evidence adduced as to when actual notice of his adverse claim was made known to appellant.\nIn order for adverse possession to ripen into good title, the possession must have been for a period of seven years after the cause of action has accrued. Ark. Stat. Ann. \u00a7 37-101 (Repl. 1962). Here the property in question was originally acquired by the appellee in 1928. He built a house on the property in 1948. In 1963, a few months after he and appellant were married, he conveyed the property to himself and her to hold as tenants by the entirety. Appellee, now seventy-six years old, testified that he had been in active and exclusive possession since the divorce or for the past nine years. Aside from living on the property, he maintained it and operated his business there. His possession was open and visible to the public in general as well as his business customers. He had held out to everyone including appellant that he was the owners of the property, and the property was generally referred to by the people in town as his \u201chome and property. \u201d Other witnesses testified that appellee had made improvements on the property and they verified that appellee was considered by the community to be the sole owner of the property. Appellant had not claimed any interest in the property during this nine year period. Since their divorce she had remarried and resided within eight miles of the premises in dispute. During this time it appears she came on or about the premises twice. The first time she was told: \u201cNow, there\u2019s the door right there.\u201d \u201cYou go out of it\u201d and to stay off the premises. On the next occasion he reminded her to \u201cstay off this property,\u201d not to come back \u201c[a]nd she hadn\u2019t.\u201d On the first occasion the subject of the death of the county sheriff, who was known to both of them, was discussed. Appellee could not recall the exact date.\nIn our original opinion, we took judicial notice of the Secretary of State\u2019s official records, which establishes the date of the sheriff\u2019s death as February, 1966, or approximately one year after the parties \u2019 divorce. Appellant correctly contends in her petition for rehearing that in this fact situation this was impermissible since judicial notice of this fact was not raised in the trial court. See Ark. Stat. Ann. \u00a7 28-1001, Rule 201 (Supp. 1977). A demurrer to the evidence involves a question of law as to the sufficiency of the evidence, and in ruling upon the motion, the chancellor is not to weigh the evidence but is to construe the evidence in the light most favorable to the plaintiff and rule against him only when the evidence fails to make a prima facie case. Pierson v. Barkley, 253 Ark. 131, 484 S.W. 2d 872 (1972); and Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950). Here we hold that the evidence, when viewed most favorably to appellee, as we must do on appeal, did not make a prima facie case that appellant, a co-tenant of an estate by the entirety, was sufficiently put on notice of appellee\u2019s adverse claim of possession. See McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714 (1960); and Spotts, Adm\u2019x v. Lewis, 243 Ark. 272, 419 S.W. 2d 622 (1967).\nHowever, we cannot agree that the chancellor erred in permitting the direct examination of appellee to be conducted by leading questions. Ark. Stat. Ann. \u00a7 28-1001, Rule 611 (c) (Supp. 1977) permits leading questions on direct examination \u201cas may be necessary to develop his testimony.\u201d Here the court, in overruling appellant\u2019s objection, stated he was aware the witness was being asked leading questions \u201cbut at the same time this witness is elderly and can\u2019t hear too well and I am allowing a little bit more leeway in leading than I ordinarily would.\u201d\nAs indicated, the chancellor erred by overruling the demurrer. Reversed and remanded for further proceedings. See Ark. Stat. Ann. \u00a7 27-1729 (Repl. 1962).", "type": "majority", "author": "Frank Holt, Justice." } ], "attorneys": [ "Gibson & Gibson, P.A., for appellant.", "James Merritt and George N. Holmes, for appellee." ], "corrections": "", "head_matter": "Eva PASCALL v. Stanley E. SMITH\n77-102\n569 S.W. 2d 89\nSubstitute Opinion on Rehearing delivered June 26, 1978\n(In Banc)\n[Rehearing denied September 5, 1978.]\nGibson & Gibson, P.A., for appellant.\nJames Merritt and George N. Holmes, for appellee." }, "file_name": "0428-01", "first_page_order": 454, "last_page_order": 457 }