Wheeler v. Harris

George Rose Smith, J.,

on rehearing. The appellee insists that we were in error in failing to recognize a distinction as between the twenty acres conveyed to the appellee in 1947 and the rest of the land. It is contended that, in view of the 1947 conveyance, the appellee’s possession thereafter should be considered to have been adverse to his contenants.

This contention is unsound. It is true that if Ella Hampton had executed a deed purporting to convey the entire fee simple in the twenty acres to a stranger to the title, and if the grantee had then openly taken possession, there might have been such an ouster of the other co-owners as to set the statute in motion. Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537. But that is not this case. During Ella Hampton’s lifetime there was no visible change in the possession of the twenty acres. The appellee testified that even after the 1947 deed his mother continued to collect the rents, accounting to him; he admits that until his mother’s death he did nothing to proclaim his assertion of ownership except pay the taxes. Hence there was no such outward evidence of a possessory change as to put the appellants on notice of a hostile claim.

Rehearing denied.