dissenting. I respectfully dissent. The learned chancellor made a positive finding that the old fence line constituted a boundary by acquiescence for many years. This fact is undisputed. He did not make any finding that there was an uncertainty as to the dividing line nor did he find that a dispute as to its location existed between appellants and appellees. I submit that the clear preponderance of the evidence is that there was no uncertainty or dispute as to this boundary line. One or the other is essential to any boundary by agreement.
Ollie Lindsey was the predecessor in title to appellants and her brother was predecessor in title to appel-lees. When she sold her property to Smith, he was put into possession up to the fence which had constituted the boundary between her and her brother for nearly forty years. She stated that so long as the fence had been there, there never had been any dispute about that being the property line.
Appellant Hiram Smith said that he took possession up to the fence and maintained it. He said that appellee Mefford recently asked if he would go in with him to build a new fence. Smith said that he then agreed to furnish the wire and one man and himself if Mefford would furnish the posts and one man and they would try to straighten out the old fence. His intention was to build a new fence as near as possible to the old fence but to make it straight. He and Tate, the county surveyor, agree that Tate was called to make a survey only because the parties wanted to build a straight fence. While Mefford says the surveyor was called to establish the property line, he admits that Smith called him. Mefford does not even say that the surveyor was to establish a new property line. He does claim that Smith said he was going to have the property surveyed and “make a line fence of'it.”
Mefford does not contradict Smith about the agreement as to building the fence, but he affirmatively answers leading questions as to whether there was a dispute about the line. He never stated what the dispute was. He admits that all he wanted to do was straighten out the old fence and that he didn’t claim to own anything west of it. He said that Smith told him that he could not straghten up the old fence because it was not on the line. On redirect examination Mefford said that Smith admitted that he didn’t own up to the fence and knew it wasn’t on the line. This certainly was not a dispute. Appellee Mefford admits that there was no dispute about the property line until it was surveyed. Then he says it Avas not until the new fence was half-built. So there Avas no dispute about the location of the boundary line. Even after Tate’s admittedly erroneous survey, Mefford tried to buy the strip of land between the old fence and the survey line from Smith.1 Although there is testimony that the parties first agreed to build the neAv fence on the erroneous survey line, and later agreed to build six feet east of the survey line, there is no testimony about a dispute until the fence was actually commenced. I respectfully submit that this background will not support an “agreed bóundary” and that consequently the court’s decree should fall.
The rules as to “agreed boundaries” in Arkansas have been stated and restated dozens of times. They were set out in Clauss v. Baumgartner, 227 Ark. 1080, 305 S. W. 2d 116, which quoted from Malone v. Mobbs, 102 Ark. 542, 145 S. W. 193, 146 S. W. 143, as follows:
“In the case of Payne v. McBride, 96 Ark. 168, we held: ‘Where there is doubt, dispute or uncertainty as to the true location of the boundary line the parties may by parol fix a line which Avill, at least when followed by possession Avith reference to the boundary so fixed, be conclusive upon them although the possession is not for the full statutory period.’ To the same effect is O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743; Butler v. Hines, 101 Ark. 409, 142 S. W. 509.”
In Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, this court said:
“* * * It is only where the true line is unknown or is difficult of ascertainment, and the parties establish the line to settle a disputed and vexatious question as to the boundary line between them, that the agreement is binding.”
Here there is lacking another important element in the establishment of this type of boundary. The parties certainly never went into possession of their respective lands according to the agreement. The filing of this lawsuit was the immediate outgrowth of appellees’ building or completing of the fence. I do not believe that it can be seriously urged that the unilateral possession of Mefford meets the test. "While the adoption of a new rule validating these agreements when the boundary has only been marked, or other action taken pursuant to the agreement by the parties might be thought by some to be wise, I do not think so. "We have always followed the rule that parol agreements relating to boundaries, even when made under the required circumstances, must be carried into execution in order to be binding upon the parties. In Stroud v. Snow, 186 Ark. 550, 54 S. W. 2d 693, this court reversed a jury verdict based on such an agreement because of the court’s error in instructing the jury that just such an agreement as Mefford alleges was made in this case was sufficient. There the evidence was that appellant agreed that when the line was run by the county surveyor, he would put his fence back on the true line and reiterated his agreement when the Une was run. There this court said:
“* * * The jury found for the defendant and settled the disputed question of fact against the appellant, so that we must treat the agreement as established. This presents the single question, is the agreement sufficient to divest the title to the land in controversy acquired by lapse of time and the adverse possession of the appellant beyond the statutory period? The general rule is stated in 2 C. J., § 559, p. 256, as follows: ‘A title which has ripened by adverse possession cannot be divested by parol abandonment or relinquishment, but must be transferred by deed.’ This rule is recognized by this court in Hudson v. Stillwell, 80 Ark. 575-578, 98 S. W. 356, where we said: ‘If the occupancy was adverse for the statuory period, it operated as a complete investiture of title, and a subsequent ex-ecutory agreement to readjust the boundary lines or any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title.’ To the same effect are the decisions in Parham v. Dedman, 66 Ark. 26, 48 S. W. 673; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; O’Neal v. Ross, 100 Ark. 560, 140 S. W. 743; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399; Blackburn v. Coffee, 142 Ark. 430, 218 S. W. 836; Dermott v. Stinson, 144 Ark. 208, 222 S. W. 54, cited by the appellee.
In the recent case of Haskins v. Talley, decided by the Supreme Court of New Mexico, November 17, 1923, and reported in 29 N. M. 173, 220 Pac., at page 1007, our cases are reviewed, and the doctrine therein announced is approved as the general rule. See also Lusk v. Yankton, 40 S. D. 498, 168 N. W. 375.”
The court then goes on to reverse on the basis that the contract was executory, not executed. I submit that, until this fence was built by the parties and the extent of their right of possession delineated by it, the contract was still executory.
The majority implies that the only reason for the distinction is that the executed agreement takes the case out of the statute of frauds. This assumption seems unfounded to me. We have repeatedly held that boundary agreements are not contracts for the sale or conveyance of lands or any interest therein. See, Sherman v. King, 71 Ark. 248, 72 S. W. 571; Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710. The Sherrin ease states the rule as clearly as it could he stated:
“The agreements in cases of this kind do not operate as a conveyance, so as to pass title from one to another, but they proceed upon the theory that the true boundary line is in dispute, and that the agreement serves to fix the true line to which the title of each extends. The parties thereafter hold up to the line as they did before by virtue of their respective deeds. The theory is that the parties have simply by agreement settled the location of their boundary lines, which was in doubt, instead of having the court settle it for them. So when they orally agree upon the line, and the agreement is accompanied by possession to the agreed lines, such agreement will be valid and binding.”
In the Robinson case this court quoted the United States Supreme Court’s statement, “that such agreement is ‘not a contract for the sale or conveyance of lands. It has no ingredient of such a contract. ’ ” In view of these holdings, a simple reading of the statute of frauds' [Ark. Stat. Ann. § 38-101 (Repl. 1962)] shows conclusively that it could not have any application because this is not an action “* # * to charge any person upon any contract for the Sale of lands, tenements and hereditaments, or any interest concerning them; # * * . ” This view is supported by an overwhelming weight of authority. See, 12 Am. Jur. 2d 619, Boundaries, § 84.
Even if the statute of frauds could be said to apply, there is no evidentiary basis here for taking the case out of the application of this statute. The agreement about the method of construction of the fence was entered into before any dispute arose. Smith says it was made when Mefford first came to him and when their only objective was to straighten out the fence. Mefford does not contradict him and agrees with him as to the substance of that agreement. As hereinabove pointed out, even Mefford does not contend that there was a dispute about the boundary before the fence was half-built. Consequently, the agreement as to contributions to the fence building did not constitute any part of a boundary agreement, or any such “part performance” as to take the case out of the statute of frauds. Certainly it did not make the agreement ah executed one.
In Sherrin v. Coffman, supra, the court again pointed out that the binding effect of these agreements depended upon their execution. There it was said that the request of an adjoining owner to remove a house from the disputed strip falls short of establishing an agreement or the execution thereof. The validity of this rule distinguishing executory and executed contracts was recognized in Dewees v. Logue, 208 Ark. 79, 185 S. W. 2d 85, and Adkins v. Willis, 217 Ark. 287, 230 S. W. 2d 32.
Perhaps basically my disagreement with the majority is based upon a different understanding of the facts. In addition to the matters already pointed out, the majority states that the surveyor determined the true boundary line to be several feet west of the old fence. I do not so understand the testimony. The surveyor said that the line run by him was erroneous and that if he had run it correctly, it would have been very nearly the old fence line. Mefford récognized this and offered to purchase the strip between the surveyor’s line and the old fence line.
In setting up what is asserted to be the uncertainty as to the boundary line, the majority refers to three possible lines. I have already pointed out the fallacy of relying on the surveyor’s line as a possible line. I do not understand the significance of a line from which Smith’s and Mefford’s predecessors in title removed a boundary fence forty years ago. The fact that this was intended as a “swap” or “conveyance” between a brother and sister is inescapable. When these two possibilities are elminated, only one possible line remained. The fence to which both Smith and Mefford took possession was so conclusively the boundary between the two tracts that the chancellor correctly foreclosed the presentation of any further testimony on that subject.
I would reverse and remand with directions to the court to grant the relief sought by appellants.
I am authorized to state that Harris, C. J., joins in this dissent.
The surveyor said that the line would have been close to the old fence if he had located it correctly. His error was due to his failure to recognize that the tracts were in a “short forty.”