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Little v. Howell

January 18, 1952

LITTLE
v.
HOWELL ET AL.



Cammack

CAMMACK, Chief Justice. This appeal is from a judgment establishing a division line between the property of Estill Little and that of Mr. and Mrs. A. L. Howell. Little advances a number of reasons why the judgment should be reversed.

In 1920, John F. Cox divided the 12 acres of land now owned by the appellant and the appellees among four of his children. Each of the four deeds called for three acres more or less and placed a value of $300 on each share. The appellees now own Lots No. 1 and No. 2, which were deeded to the daughters, Rhoeana and Orphena. The appellant owns the shares deeded to Evelyn and Bill.

There is proof, including the testimony of another child of John Cox, that a division fence was erected between Lots 2 and 3, which ran in a straight line across the bottom and up the hill near a poplar tree. If this line represented the line between the property of the appellant and that of the appellees, each party would own approximately six acres of the original John Cox tract. There is proof also that no question was ever raised among the four children as to the equality of the shares until the institution of this action.

The basis of the contention of the appellant is that Rhoeana's deed to Lot No. 1 called for a strip of bottom land 63 yards wide and a strip of hill land five yards wide. These figures were in the deed. This construction would leave only approximately one acre instead of three acres in Lot No. 1. Likewise, it would necessitate an offset in the line between Lots 2 and 3 so that the fence up the hill would give the appellant a strip some 63 yards wide extending over on what was originally Tract No. 2.

We think the facts and circumstances hereinbefore related amply support the finding of the chancellor in favor of the appellees. A finding for the appellant would be in utter disregard of the obvious intent of John Cox to make an equal division of a 12 acre tract between his four children, Rhoeana, Orphena, Evelyn and Bill.

Judgment affirmed.

19520118

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