dissenting. I feel very strongly that the preponderance of the testimony in this case supports appellants’ contention that they have acquired title to all of the 80 acres of land involved here by adverse possession.
The father and mother (Negroes) of the appellants here, Robert, Kine, Frank, Nettie, Jimmie and Lee McCoy, in 1941 deeded to them the W% of the NE14 of Section 35, Township 16, Range 14 West, 80 acres. This deed was recorded December 1,1941. The father and mother of these appellants had been in possession of this 80-acre tract since 1933 and their children, upon receipt of the above deed, took possession and have been on the land and in possession until the present time. The record reflects that in 1944, J. R. Wilson and others filed suit against these same appellants seeking to quiet title to a tract containing 20.97 acres, carved out of this 80-acre tract. Frank and Aubra Anthony (appellees here) were made parties to this Wilson 1944 suit and although they were never served with summons, the evidence clearly shows that they had knowledge of that suit.
In that suit these McCoy children answered, alleging title to the entire 80 acres involved here and asking that their title be quieted to all of it. Trial resulted in a decree quieting the title of appellants in the entire 80 acres and specifically in the 20.97-acre tract directly involved. That decree was based on the actual adverse possession of appellants for more than the statutory period of seven (7) years. The decree contained these recitals:
‘ ‘ From all of the above the court being now well and sufficiently advised, finds: That Jeannie McCoy (MeCorvey) and Henry McCoy (McCorvey) took possession of the W% of the NE1/^ of Section 35, Township 16 South, Range 14 "West, in 1933, and remained in open, peaceable, notorious, continuous and hostile possession of the above described lands until they conveyed said property to Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, on December 1,1941.
“That subsequent to December 1, 1941, the grantors in said deed remained in adverse possession of the W% of the NE% of Section 35, Township 16 South, Range 14 West, and have continued to remain in adverse possession of said lands until the present time.
“That at the time of the filing of this suit in 1944, title in and to the above described property had already vested in the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy on account of their adverse possession and the adverse possession of their grantor—
“That the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, are entitled to have their title in and to the above described lands quieted and confirmed in them as against all claims of the plaintiffs. That the complaint of the plaintiffs should be dismissed for want of equity and the defendants are entitled to their costs.
“It is, therefore, by the court considered, ordered, adjudged and decreed that the complaint of the plaintiffs be and the same is hereby dismissed for want of equity and the title in and to the W% of the NE% of Section 35, Township 16 South, Range 14 West, is hereby quieted and confirmed in the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, as against the plaintiffs, N. N. Wood, W. L. Fur-low, Aubert Martin and J. R. Wilson, which tract includes the 21-acre tract specifically claimed by the plaintiffs,
It appears that prior to the 1944 suit supra J. R. Wilson and others on November 7,1942 conveyed a portion of this 80-acre tract (approximately 40 acres) to Frank Anthony, a partner in the Anthony Land Company, appellee. It appears practically undisputed that at the time of the above 1942 conveyance to Anthony, J. A. Simmons, as Frank Anthony’s agent, handled the details of the purchase, checking the records to determine the state of the title to this 80 acres. Simmons testified: Q. “And you found the instuments that were of record affecting title before you purchased for Anthony?” A. “At the time I purchased.” Q. “Prior to that time there was a deed of record from Jeannie McCorvey and her husband to Lee McCorvey, Robert McCorvey, Kiney McCorvey, Jim McCorvey, Frank McCorvey, in other words to the defendants in this suit covering the W% of the NE14; of course you found that deed too?” A. “I did. * * *” Q. “But at that time you knew they were in possession of some part of it with a deed to the whole eighty?” A. “That’s right.” In addition, Simmons found that the taxes for the year 1941, the year immediately preceding his purchase, had been paid by Jeannie McCoy, appellants’ mother.
As a result, Simmons found the recorded deed made to these appellants by their father and mother in 1941 and further learned that appellants were in actual possession of part of the 80 acres and were claiming title to the entire 80, yet with this knowledge Frank Anthony completed the purchase and took a deed to slightly more than 40 acres as above stated. The evidence shows that there were two houses on this 80-acre tract, a garden, some of it in pasture, and the remainder was used for growth of timber. One of the appellees, Aubra Anthony, testified: Q. “Have they at any time ever asserted to you any claim of ownership to this sixty acres of land?” A. “Well, Bob McCoy has said something about they owned the land, and I told him that I didn’t know anything about it, all I knew we had a deed and was paying taxes on it.” John Daniels testified that the Anthonys never cut any timber off this land but that when they attempted to they were stopped by the appellants, the McCoys. D. L. Staples testified, in effect, that he had been familiar with the land for about 35 years, that the parents of appellants and then appellants had been in possession of the 80-acre tract during all of that period. D. L. Staples, Jr., tended to corroborate his father’s testimony and further testified that the 80-acre tract was known in the community as the 'McCoy Place’. Another witness, I. E. Adams, testified that the McCoys were in possession of the entire 80 acres and had been for approximately 60 years, and all of these appellants testified as to their actual possession, occupancy and claim of ownership of the entire 80 acres. The 1941 deed above, from the parents to appellants, constituted color of title. Appellants, it is conceded, had title by adverse possession to a part of this 80-acre tract, that is — 20.97 acres. It seems to me that the law is clear that possession of even a part of the 80-acre tract under color of title to the whole tract, constitutes possession in law of the whole tract and that title ripened by appellants adverse possession. In Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475, in an opinion by the late Judge Eobins, we said: “This court has often held that the actual possession of a part of a tract of land described in a deed gives the grantee possession constructively, to the whole of the tract as therein described. See Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82, and cases there cited. Wells v. Rock Island Improvement Co., 110 Ark. 534, 162 S. W. 572, 573. Adverse possession is one of the modes of acquiring title to property. It has been defined as the open and notorious possession and occupation of real property under an evident claim or color of right. It is said to be a possession in opposition to the true title and real owner — a possession which is commenced in wrong and is maintained in right. Again it has been defined as the ripening of adverse possession into title by lapse of time. A title acquired by adverse possession is a title in fee simple, and is as perfect a title as one by deed from the original owner or by patent or grant from the government. ... It is a well-established doctrine of this court that title to lands may be acquired by adverse possession, which title may be asserted as effectively as title acquired by deed.”
Accordingly, I would reverse and dismiss appellee’s complaint for want of equity.