Cite as 2015 Ark. App. 689
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-583
Opinion Delivered December 2, 2015
ADRIANNE O’NEAL APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, SIXTH
DIVISION [NO. 60CV-14-2648]
V. HONORABLE TIMOTHY DAVIS
FOX, JUDGE
ETHEL LOVE REVERSED ON DIRECT APPEAL;
APPELLEE REVERSED IN PART AND
AFFIRMED IN PART ON CROSS-
APPEAL
PHILLIP T. WHITEAKER, Judge
Adrianne O’Neal appeals a Pulaski County Circuit Court order declaring her a tenant
in common with Ethel Love and quieting title to certain real property in Pulaski County,
Arkansas. Ethel Love cross-appeals that same order. Because the trial court committed an
error of law in declaring the parties to be tenants in common and in quieting title in both
parties, we reverse and remand for reconsideration, on both direct and cross-appeal, the order
quieting title. However, we affirm on cross-appeal the trial court’s evidentiary rulings.
A brief review of the facts is necessary. The property subject to this lawsuit is located
in Pulaski County, Arkansas. Adrianne and Ethel each purports to have obtained sole title to
the property through separate conveyances from either Herbert Love or Gloria Love, while
Herbert and Gloria were married. Adrianne, the daughter of Herbert and Gloria, purports
Cite as 2015 Ark. App. 689
to have obtained her title to the property from Gloria. Ethel, Herbert’s sister, purports to
have obtained her title to the property from Herbert.
Initially, the property was owned by Herbert, individually. In 1995, Herbert and
Gloria executed a warranty deed from themselves as grantors to themselves as grantees. The
1995 Warranty Deed specifically designated Herbert and Gloria as husband and wife in their
capacity as grantors. There was no such designation in their capacity as grantees. Although
the deed was executed in 1995, it was not recorded at that time.1
On July 1, 1999, while Herbert was married to Gloria, Herbert conveyed a quitclaim
deed to Ethel.2 Subsequently, Ethel lived with Herbert on the property, paid taxes and
insurance thereon, and made some improvements thereto. Herbert died in 2004.3 After his
death, Ethel remained on the property.
In June 2014, Gloria conveyed a quitclaim deed to Adrianne. Adrianne immediately
sent Ethel a notice to vacate. Ethel refused.
Upon Ethel’s refusal to vacate, the current litigation began. Adrianne filed an action
for unlawful detainer against Ethel. Ethel answered, denied the complaint, and raised multiple
1
In October 2014, months after the initiation of the current litigation between the
parties, Gloria filed of record the 1995 Warranty Deed.
2
The 1999 Quitclaim Deed gives the street address of the property, but the actual legal
description noted in the deed only describes a portion of the property as originally deeded to
Herbert. A subsequent correction deed purportedly signed by Herbert and Gloria was
recorded in May 2004 and was issued to correct the legal description of the property and the
grantors. The validity of this deed was called into question during a deposition, and it appears
that Ethel admitted that it was most likely a forgery. This deed was not introduced into
evidence at trial.
3
At the time of his death, Herbert was still married to Gloria.
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defenses: (1) title to the property, (2) color of title plus payment of taxes on the property for
the last ten years, (3) title to the property through adverse possession, (4) Adrianne’s claim
had been improperly made more than five years after her predecessor’s claim arose and that
Gloria had no interest in the property to deed to Adrianne, (5) the statute of limitations on
Adrianne’s unlawful detainer action had run, and (6) she was a good-faith purchaser of the
property for value because she made a payment on the property for Herbert to keep it from
foreclosure. Ethel filed a counterclaim seeking to quiet title, alleging (1) fee simple ownership
by exclusive possession under a claim of right and payment of taxes since 1999; (2) adverse
possession since 1999; and (3) that Gloria had abandoned any homestead rights or dower
interest in the property by failing to assert them within the applicable limitations period.4
Adrianne responded by denying the counterclaim.
The claims of both parties proceeded to a bench trial on February 12, 2015.5 During
the course of the trial, Adrianne introduced, over the objection of Ethel, an “affidavit” dated
June 29, 1995, from Herbert Love stating his intent that his wife, Gloria, own the house and
“no other person.” Adrianne also introduced, over the objection of Ethel, the 1995 Warranty
Deed. At the conclusion of the hearing, the trial court made the following findings of fact and
conclusions of law:
4
Ethel subsequently amended her counterclaim to include a request for damages to
recover for improvements and taxes paid on the property if the court did not quiet title in her
name. Adrianne again denied the allegations in the amended counterclaim.
5
The abstract erroneously states that the bench trial was held on October 27, 2014.
The summary-judgment hearing was held on that date.
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Herbert Love was the sole owner, prior to 1995, of the subject property. In
1995 he and Gloria Love signed a deed to themselves that, although it recited that they
were married, did not deed the property to themselves as tenants by the entireties.
Therefore, the 1995 deed created a tenants in common title between the married
couple. In 1999, Herbert Love deeded his one-half interest to [Ethel] by virtue of a
deed that was admitted into evidence. While that deed contains a legal description
that gives only Lot 7 to [Ethel], the Court finds that the deed should be reformed to
refer to Lots 7 and 8, based upon the inclusion of the street address in the deed. In
2004, Herbert died. In 2014, Gloria deeded her one-half interest in the property to
[Adrianne]. Since June 26, 2014, [Ethel] and [Adrianne] have been tenants in
common with equal shares with respect to the subject property, and the Court amends
both parties’ pleadings to conform with the facts which the Court finds in this
paragraph.
Based on these findings, the trial court quieted title in the property to Ethel and
Adrianne as tenants in common with equal shares to the property. All other claims of the
parties were denied and dismissed with prejudice.
Adrianne appeals the trial court’s order quieting title, arguing that the trial court erred
in declaring that the 1995 Warranty Deed between Herbert and Gloria Love, husband and
wife, (Grantors) and Herbert and Gloria Love (Grantee) created a tenancy in common, rather
than a tenancy by the entirety. She then contends that, because the trial court erred in finding
that the 1995 Warranty Deed created a tenancy in common, the trial court’s denial of her
claim for unlawful detainer was erroneous. Finally, she argues that, even if the trial court was
correct in finding that a tenancy in common was created, the trial court erred in reforming
the 1999 Quitclaim Deed from Herbert to Ethel to include both Lots 7 and 8.
Ethel cross-appeals the trial court’s order quieting title, arguing that the trial court
erred in giving any legal effect to the 1995 Warranty Deed when it was not filed of record
until after the 1999 Quitclaim Deed was recorded and after the complaint for unlawful
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detainer was filed. Ethel appears to argue that she was a bona fide or good faith purchaser for
value without notice of the 1995 Warranty Deed and that the statute of limitations ran on
Adrianne’s claim. Finally, she claims that the trial court erred in allowing admission of the
1995 “affidavit” or “letter” into evidence regarding Herbert’s wishes regarding the property.
All of the issues in this case, except the last evidentiary issue on cross-appeal, hinge on
the trial court’s decision regarding the legal effect of the 1995 Warranty Deed from Herbert
and Gloria Love, husband and wife, to Herbert and Gloria Love. Thus, we examine it first.
This court reviews adverse-possession and quiet-title actions de novo on the record and
will not reverse a finding of fact by the trial court unless it is clearly erroneous. Morrison v.
Carruth, 2015 Ark. App. 224, at 2, 459 S.W.3d 317, 319; Parkerson v. Brown, 2013 Ark. App.
718, 430 S.W.3d 864. In reviewing a trial court’s findings of fact, this court gives due
deference to that court’s superior position to determine the credibility of the witnesses and
the weight to be accorded their testimony. Strother v. Mitchell, 2011 Ark. App. 224, 382
S.W.3d 741. We do not, however, defer to the trial court on a question of law. Peavler v.
Bryant, 2015 Ark. App. 230, 460 S.W.3d 298.
The trial court found in this case that, because the 1995 Warranty Deed did not
expressly convey the property to Herbert and Gloria as “husband and wife” or as tenants by
the entireties, it only created a tenancy in common between the married couple. Adrianne
contends that this was error because the language of the 1995 Warranty Deed created a
tenancy by the entirety, not a tenancy in common.
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A tenancy by the entirety can only be created if the four essential common law unities
of interest, time, title, and possession coexist. See Weir v. Brigham, 218 Ark. 354, 236 S.W.2d
435 (1951). The four unities may be deemed concurrently present, and a tenancy by the
entirety may be created, where a husband directly conveys his interest to his wife and himself.
Harmon v. Thompson, 223 Ark. 10, 263 S.W.2d 903 (1954); Ebrite v. Brookhyser, 219 Ark. 676,
244 S.W.2d 625 (1951). Once property is placed in the names of both a husband and his
wife, without specifying the manner in which they take, a presumption arises that they own
the property as tenants by the entirety. Evans v. Seeco, Inc., 2011 Ark. App. 739, at 5 (citing
Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988) (presumption arose where husband
placed proceeds from sale of property into certificates of deposit bearing both his and wife’s
names); Carroll v. Carroll, 2011 Ark. App. 356 (presumption arose where club membership
was purchased entirely with marital funds); and Martindale v. Estate of Martindale, 82 Ark. App.
22, 110 S.W.3d 319 (2003) (presumption arose where property was purchased entirely from
joint banking accounts)). The words “husband and wife” or “tenants by the entirety” are not
necessary to the creation of the estate. Foster v. Schmiedeskamp, 260 Ark. 898, 900, 545
S.W.2d 624, 626 (1977); Curtis v. Patrick, 237 Ark. 124, 371 S.W.2d 622 (1963).
Here, the trial court held that because the 1995 Warranty Deed did not expressly deed
the property to Herbert and Gloria as husband and wife or as tenants by the entireties, only
a tenancy in common was created. This was clear error because the law presumes that
Herbert transferred whatever interest he had in the property by virtue of the 1995 Warranty
Deed to Gloria as a tenancy by the entirety regardless of the language used in the deed.
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Such a finding, however, does not mandate a conclusion in favor of either Adrianne
on direct appeal or Ethel on cross appeal. It appears that Adrianne’s unlawful detainer was
dismissed by the trial court solely upon the error that the 1995 Warranty Deed created a
tenancy in common without consideration of the other statutory factors in determining
unlawful detainer. Likewise, Ethel claimed below that she was a good-faith purchaser for
value without notice. Because the trial court erroneously determined that the 1995 Warranty
Deed created a tenancy in common, the trial court did not rule on Ethel’s claim that she was
a good-faith purchaser for value or, if she was, whether her status as a good-faith purchaser
would defeat Gloria’s interest as a tenant by the entirety. These questions must be answered
before Adrianne’s unlawful-detainer claim can be decided. Additionally, because the trial
court found Ethel to own the land as a tenant in common with Adrianne, the trial court did
not rule on Ethel’s adverse-possession and statute-of-limitations claims. Because these issues
turn on questions of fact not previously decided by the trial court, we must remand for further
consideration.
On cross-appeal, Ethel challenges the trial court’s admission of the 1995 ”affidavit”
espousing Herbert’s wishes with respect to the property and the “unrecorded” 1995 Warranty
Deed transferring property to Herbert and Gloria. These documents were the subject of
multiple motions in limine, which were denied by the trial court prior to trial. On appeal,
we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of
discretion. Donley v. Donley, 2015 Ark. App. 496, at 8, ___ S.W.3d ___, ___. In evidentiary
determinations, a trial court has wide discretion. Id.
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As noted above, the 1995 Warranty Deed was recorded in October 2014. Thus,
Ethel’s claim that the deed should not have been introduced because it was not recorded fails.
And, despite Ethel’s claims to the contrary, whether the late recording of the 1995 Warranty
Deed caused it to be subordinate to the 1999 Quitclaim Deed is a question as to its validity,
not its admissibility. Additionally, her contention that the 1995 Warranty Deed is
inadmissible because she challenged the validity of Herbert’s signature is also not one of
admissibility, but instead goes to the weight of the evidence.
As for the corresponding 1995 letter or affidavit, Ethel argues that it was hearsay that
should not have been admitted without accounting for the original document. However, the
letter testimony was proper under the hearsay exception set forth in Rule 803(3) of the
Arkansas Rules of Evidence because it showed Herbert’s intent that his interest in the
property be conveyed to his wife. See Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419
(citing Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Easterling v. Weedman, 54
Ark. App. 22, 922 S.W.2d 735 (1996); and Honey v. Hickey, 26 Ark. App. 99, 760 S.W.2d
81 (1988)). As for Ethel’s claim that the document was not properly authenticated under
Arkansas Rule of Evidence 1004, she does not appear to question the actual authenticity of
the document or argue that its admission would be unfair under the circumstances. Arkansas
Rule of Evidence 1003 allows duplicates in place of the original unless a genuine question is
raised as to its authenticity or if its admission would be unfair under the circumstances.
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Reversed on direct appeal; reversed in part and affirmed in part on cross-appeal.
VIRDEN and HARRISON, JJ., agree.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.
Bennie O’Neil, for appellee.
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