The testimony shows that the contract to purchase this land was made by and in the name of J. G. Mayfield on February 24, 1898, which was two years prior to the date of Mayfield's marriage to Laura, his second wife. He then had children, and so did Laura, but no child was born to their union.
It was shown that before completing the payments required by the contract of purchase Mayfield contemplated that a suit would be brought against him for a large amount by one Rosenberg, so that, when his payments were completed, he took a deed to the land in the name of his wife, his second marriage having previously occurred.
Now, of course, equity would have granted Mayfield no relief on this account. He would have been left where he was found, with the title to the land in the name of his wife. But this is a circumstance which shows the nature and character of Mayfield's possession after the death of his wife, which occurred in 1926. Mayfield died in 1930.
It is argued that Mayfield's possession after the death of his wife could not be and was not adverse, for the reason that he had the right of possession as tenant by the curtesy. But this is not true, as no child was born to him by Laura, his second wife. *Page 607
After the death of Mayfield in 1930, his own children remained in the exclusive possession of the land, and until this suit was brought, a period of about nine years, so that, with the possession of Mayfield himself, there has been an exclusive possession, apparently adverse to Laura's children, for a period of thirteen years.
The testimony is to the undisputed effect that the taxes were paid by Mayfield, or in the name of his estate, and by his heirs, these appellants. The land was at all times assessed in Mayfield's name, even before the death of Laura. After the death of Laura, Mayfield and his children exercised every act of ownership of which the land was capable. They cleared and put in cultivation additional portions of it, and cut and sold timber from time to time, for the value of which they are now asked to account.
The Mayfield heirs testified that it was always understood that the land belonged to their father, and not to his second wife, their stepmother; that their possession, after the death of their father, was open, adverse, exclusive, and hostile, and that they were unaware that Laura's children claimed any interest in the land until shortly before this suit was filed.
The case was not tried in the circuit court, but was tried before the chancellor, whose findings of fact are not binding upon us, if they appear to be contrary to the preponderance of the evidence, as we think they are.
The parties to this litigation are all sui juris, and have all lived near the land during all of the time covered by this litigation, and none of them were under any disability which prevented the running of the statute of limitations against them.
It is inconceivable to me that Laura's children should for a period of about thirteen years, have permitted Mayfield's children (there being no blood ties between them) to have occupied this land and to have appropriated all the rents and profits therefrom if they did not, in fact, recognize Mayfield's children as the owners of the land. Such generosity is not impossible, but is so highly improbable that I am not impressed with the truthfulness *Page 608 of the testimony to that effect. It is far more probable that the suit was suggested by the execution of the oil lease which was canceled in the decree from which is this appeal.
It appears to me that if the law as announced in the case of Smart v. Murphy, 200 Ark. 406, 139 S.W.2d 33, is applied here, we should reverse this decree.
Laches are pleaded, as well as adverse possession; but whether that plea is sustained or not, it does appear to me that the plea of adverse possession has been fully established, and that this possession was what it appeared to be to persons who dealt with the Mayfield heirs as owners of the property, and that their continuous possession (continuing for nearly twice the time required by law for adverse possession to ripen into title) has given the Mayfield heirs the title.
I, therefore, respectfully dissent; and am authorized to say that Mr. Justice HUMPHREYS concurs in the views here expressed.