ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

BOB SHRABLE and GLENDA SHRABLE

APPELLANTS

DONNIE ALLISON, CAROL ALLISON, DUANE GAITHER, and LINDA GAITHER

APPELLEES

CA 03-435

OCTOBER 29, 2003

APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT

[NO. E 01-53]

HONORABLE THOMAS L. HILBURN, JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellants, Bob and Glenda Shrable, appeal the decision of the Lawrence County Circuit Court quieting title to certain land within that county to the appellees, Donnie and Carol Allison. On appeal, appellants make three arguments: (1) the trial court erred in dismissing appellants’ counterclaim; (2) the trial court erred in finding that the 1994 quitclaim deed was ambiguous; and (3) even if the deed were ambiguous, the trial court erred in ruling that the quitclaim deed conveyed the metes and bounds description rather than the triangular, northern portion of Lots 27 and 28. We affirm.

The conflict in this case arose after Scott and Virginia Allison sold a triangular piece of land in 1999 to Scott’s brother and sister-in-law, the appellees. Appellants claimed that they owned the triangular piece of property as Scott Allison had executed a quitclaim deed on December 1, 1994, for that land to appellants’ predecessors in title. Appellants maintain that after a series of conveyances they purchased the triangular piece of land in 1995. This case turns on the language contained in the quitclaim deed executed on December 1, 1994, by Scott and Virginia Allison to Michael and Rhonda Rash for Lots 27 and 28, less a reservation, located in Parkview Addition in Walnut Ridge, Arkansas.

At trial Scott Allison’s attorney, Steve Westerfield, testified that Scott Allison asked him to prepare a deed conveying the lower portion of Lots 27 and 28, “the square,” while reserving for himself the northern portion of the two lots, “the triangle.” Scott Allison presented the resulting quitclaim deed to Dan Mullens, the owner of Mullens Abstract Company, to satisfy Mullens’ request for such a deed. Mullens had been employed by a bank to write title insurance on a separate real estate matter. Mullens testified that without such a quitclaim deed from Scott Allison, Mullens could not write the title insurance because the title would have been clouded. Mullens also stated that Scott Allison agreed to execute the quitclaim deed because the property conveyed would ultimately be deeded to the First Baptist Church of Walnut Ridge. On May 20, 1995, Michael and Rhonda Rash executed a quitclaim deed, containing the same property description as described in the 1994 deed, to the church. On June 6, 1995, the church sold the property and executed a warranty deed to Mason and Kelly Moody for Lots 27 and 28. On August 21, 1995, the Moodys executed a warranty deed to appellants for Lots 27 and 28. Four years later, on September 27, 1999, Scott and Virginia Allison conveyed land, which included the triangular portion of Lots 27 and 28, to appellees.

Appellants filed a petition to quiet title to the triangular portion of Lots 27 and 28 on April 13, 2001. Appellees filed their answer on April 27, 2001, and on August 6, 2001, filed a counterclaim seeking to quiet title to the triangular property in their name. On November 15, 2002, a bench trial was held in the Lawrence County Circuit Court, and ten witnesses testified. On January 16, 2003 the trial court filed its order. The trial judge found that the 1994 quitclaim deed was ambiguous, dismissed appellants’ counterclaim, and granted appellees’ petition to quiet title to the “[n]orthern portions of Lots 27 and 28.”

For appellants’ first point on appeal, they contend that the trial court erred in dismissing their counterclaim wherein they argued that they had acquired title by payment of taxes. We review such matters de novo on the record. Appollos v. International Paper Co., 34 Ark. App. 205, 808 S.W.2d 786 (1991). But we do not reverse the decision of the trial judge unless his findings are clearly against the preponderance of the evidence, giving due deference to his superior position to judge the credibility of the witnesses and the weight to be given their testimony. Id. "However, a trial court’s conclusion of law is not entitled to the same deference. If the trial court erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Manifestly, a trial court does not have a better opportunity to apply the law than does the appellate court." City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 339-40, 916 S.W.2d 95, 99 (1996).

Arkansas Code Annotated Section 18-11-102 (Repl. 1999), addresses the issue of payment of taxes on unimproved or unenclosed land. It states:

Unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he has color of title thereto, but no person shall be entitled to invoke the benefit of this section unless he, and those under whom he claims, shall have paid the taxes for at least seven (7) years in succession.

We do not believe that appellants demonstrated facts to the trial court to satisfy this statute.

Section 18-11-102 has three requirements: (1) the land must be unimproved and unenclosed; (2) the party paying the taxes must have color of title; and (3) the party paying the taxes must have done so for at least seven years in succession. If these three conditions are met, the land is deemed to be in the possession of the person who is paying the taxes. The possession contemplated by this section has the same effect as if the person paying the taxes had been in actual, adverse possession of the land for the full seven-year period. Jones v. Barger, 67 Ark.

App. 337, 1 S.W.3d 31 (1999). The statute does not require actual adverse possession. Id. Even if the land in question were unimproved and unenclosed, appellants must prove that they paid taxes under color of title for seven years. “Color of title” is defined as:

[a]ny instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title to the lands described. Such an instrument purports to be a conveyance of the title, and because it does not, for some reason, have that effect, it passes only color or the semblance of a title.

Black’s Law Dictionary 266 (6^th ed. 1990).

Color of title is not, in law, title at all. It is a void paper, having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title. Its chief office or purpose is to define the limits of the claim under it. Nevertheless, it must purport to pass title. In form, it must be a deed, a will, or some other paper or instrument by which title usually and ordinarily passes. Such qualities as are imputed to it by the law, for limited purposes, are purely fictitious and are accorded to it only to work out just results. Fictions are never used in procedure or law for any other purpose.

Weast v. Hereinafter Described Lands, 33 Ark. App. 157, 803 S.W.2d 565 (1991) (citations omitted) (quoting Bailey v. Jarvis, 212 Ark. 675, 208 S.W.2d 13 (1948)).

Appellants and their predecessors in title obtained color of title when Scott and Virginia Allison executed the quitclaim deed to the Rashs on December 1, 1994. On August 21, 1995, Eric and Kelly Moody executed a warranty deed for Lots 27 and 28 to appellants. On April 13, 2001, appellees filed the petition to quiet title in their names. In August 2001, appellants filed their counterclaim. Seven years did not expire from the execution of the quitclaim deed on December 1, 1994, until August 2001 when appellants filed their counterclaim. Therefore, appellants and their predecessors in title could not have paid taxes for seven years under color of title. Thus, the trial court did not err in dismissing appellants’ counterclaim as they could not satisfy the color-of-title requirement espoused in Ark. Code Ann. § 18-11-102.

For appellants’ second point on appeal, they maintain that the trial court erred in finding that the deed was ambiguous. When interpreting a deed, the court gives primary consideration to the intent of the grantor. Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998). When the court is called upon to construe a deed, it will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. The court will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful. Bishop v. City of Fayetteville, 81 Ark. App. 1, 97 S.W.3d 913 (2003). When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grantor, and interpret the language in the light of attendant circumstances. Id.

The 1994 quitclaim deed contained the following granting language:The following described land in Lawrence County, Arkansas, to-wit: Lots 27 and 28 of Parkview Addition to Walnut Ridge, Arkansas, less and except that part of said Lots 27 and 28 described in Deed Book 56, page 223, filed January 11, 1980, in the Records of Lawrence County, Arkansas, more particularly described as follows: Beginning at the Southeast corner of said Lot 28, run thence North 142.5 feet, run thence North 89.03' West 145 feet, run thence South 0.38' West 110.2 feet, run, thence South 81. East 52 feet to the street right of way, run thence along said street right of way 86 feet to a point due West of this point of beginning, run thence East 35 feet to the point of beginning, containing 16,000 square feet, more or less.

(Emphasis added). Appellants argue that the phrase “more particularly described as follows” modifies the reservation of land rather than the conveyance. Appellants contend that if the phrase modified the reservation, then they should have been awarded the northern triangular portion of Lots 27 and 28. We do not agree with appellants’ argument. We believe that the phrase “more particularly described as follows” modifies the conveyance, which is described according to the metes and bounds. Attorney Steve Westerfield’s testimony supports this interpretation. He stated that Scott Allison employed him to prepare a deed that would convey the lower part of the two lots and reserve the triangular portion. Westerfield testified as follows:

I think this [1994 quitclaim] deed clearly exempts what was in Deed Book 56 and that was what I was told to do. . . . When you say “more particularly described as follows” you’re not describing the exception. The description is the part that was conveyed.

Westerfield further stated that he told Scott Allison, “He was safe to give [Mullens] the deed because [Allison] wasn’t conveying the North part.” After finding the deed to be ambiguous, the trial court awarded appellees the northern triangular portion. Based upon Westerfield’s testimony, the trial court concluded that even though the 1994 quitclaim deed was ambiguous, Scott Allison intended to convey the lower portion of Lots 27 and 28 while reserving the triangular portion. Because Scott Allison reserved his rights to the triangular portion, he was able to later, in 1999, sell that land to appellees.

The result announced by the trial court is correct. An appellate court will affirm the decision if it is right, although the trial court announced the wrong reason for its ruling. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987); Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984). The trial court properly quieted title of the triangular portion of Lots 27 and 28 to appellees; however, it did so for the wrong reason. The language contained in the deed is not ambiguous as the trial court found. We hold that the deed is unambiguous as it clearly conveyed the metes and bounds description while reserving the northern triangle. We base our holding on our belief that the phrase “more particularly described as follows” describes the metes and bounds conveyance. Therefore, the metes and bounds description was the only property that was conveyed to the Rashes, and it was the only portion of Lots 27 and 28 available for appellants to later purchase from the Moodys. As a result, the trial court did not abuse its discretion in quieting title to the northern triangular portion of Lots 27 and 28 to appellees as they purchased it in 1999 from Scott and Virginia Allison.

For appellants’ third point on appeal, they argue, in the alternative, that even if the deed were ambiguous, the trial court erred in ruling that it “conveyed the metes and bounds description rather than the triangular top of Lots 27 and 28.” We addressed the merits of appellants’ third, alternative argument during our examination of their second point on appeal. Therefore, we need not repeat our analysis as to why the trial court did not err in ruling that the 1994 deed conveyed the metes and bounds description to the Rashes.

Affirmed.

Vaught, J., agrees.

Baker, J., concurs.