Towson v. Denson

• Citation: 86 S.W. 661
• Parties: TOWSON v. DENSON et al.
• Decision Date: 18 February 1905
• Court: Supreme Court of Arkansas

Page 661

86 S.W. 661

TOWSON v. DENSON et al.

Supreme Court of Arkansas.

February 18, 1905.

On Rehearing, April 15, 1905.

Appeal from Sevier Chancery Court; James D. Shaver, Chancellor.

Action between J. W. Towson and J. W. Denson and others. From a judgment for the latter, the former appeals. Affirmed.

E. F. Friedell and S. R. Allen, for appellant. Geo. Vaughan and Jno. B. Jones, for appellees. H. F. Roleson, Austin & Donaher, J. T. Coston, J. W. House, C. T. Coleman, W. S. Luna, and others, amici curiæ.

COHN, Special Judge.

The principal question presented to the court in this case by the appellant relates to the construction to be given to an act of the General Assembly of the state entitled "An act for the protection of those who pay taxes on land," approved March 18, 1899, which is in the following words: "That unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act." Acts 1899, p. 117; Kirby's Dig. § 5057. It is conceded by both sides to this litigation that the act must be construed by itself, and that if this court shall decide in this case that the construction contended for by appellee is correct, and that the act as so construed is valid, then the decree below must be affirmed. If, on the contrary, the court holds in favor of the construction contended for by the appellant, or that the act is invalid, then the decree must be reversed, and the prayer of the complaint must be denied.

Accepting the issue, as thus presented, we enter upon a discussion of the proper construction to be given to the act referred to. It is our duty to construe the act just as it reads, if that can be done without involving absurdities. Guided by this elementary and primary rule of construction, we find, first, "that unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto." If the terms of the act ended here, there could be no controversy respecting its meaning, for it would manifestly be the legislative intent that he only should be deemed to be in possession of unimproved and uninclosed land who, having color of title to the land, paid taxes thereon for the given year or years, the possession for each year corresponding legally with each year's taxes that had been assessed and paid. This meaning, however, we are told is altered by the words of the act which follow the part of the act just quoted. Is this true? We give, secondly, that part of the act, which is in these words, viz.: "But no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act." Are we to read this part of the act so that the only effect of the payments of taxes for seven successive years shall be that the taxpayer will obtain a possession which must be repeated seven times in the same manner before any title by constructive possession can accrue to him? Or are we to read the act so that the last part of it only makes it a condition to a constructive possession for each year that the taxpayer shall have paid taxes for seven successive years? In other words is it not the true construction of the act to say that the last part of it deprives the taxpayer of the effect of a possession for each year unless the taxes are paid by him for seven successive years, and no more? The majority of the court favor the latter construction as being a correct construction of the language employed by the General Assembly. When the Legislature said that as to the taxpayer, under color of title, who paid taxes on unimproved and uninclosed land, such payment should legally constitute possession of such land, it is not reasonable to suppose that they meant anything different than they so declared, merely because they afterwards said that this legal effect each year should be taken away if there were not at least seven successive yearly payments, three of which must occur after the enactment of the law. That construction is consonant with the terms of the act, and it avoids the injustice of making seven years' payment of taxes amount, as to wild lands, to no more than a single act of trespass under the provision governing limitations in actions for the recovery of real estate. For it is the settled doctrine of this court that a trespass can start the running of that provision. Ferguson v. Peden, 33 Ark. 150; Logan v. Jelks, 34 Ark. 547; Organ v. Railroad Company, 51 Ark. 235, 270, 11 S. W. 96. The construction we disapprove, when carried to its legitimate conclusion, would require seven years' successive payment of taxes and seven additional years of actual possession, or seven times seven years —that is, forty-nine successive years—payment of taxes under the act, in order to create title by adverse possession. This we think unreasonable. Moreover, that part of the act which we have, for convenience of discussion, called the last part of the act, and which begins with the word "but," is, we think, in the nature of an exception or proviso or limiting clause to the general provision which precedes it. Words & Phrases, vol. 1, p. 926; Am. & Eng. Ency. (2d Ed.) vol. 5, 79; Cyc. vol. 6, p. 261; Leggett v. Firth, 132 N. Y. 11, 29 N. E. 950. And as, according to a well-settled rule of construction, "when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause, which does not fall fairly within its terms" (McRae, Adm'r, v. Holcomb, 46 Ark. 306, 310), even if there were doubt regarding the effect of that part of the act, it would have to be resolved in favor of that construction which we have adopted (see, also, Minis v. United States, 15 Pet. 423, 445, 10 L. Ed. 791; Gould v. Insurance Company [D. C.] 132 Fed. 927). If there is any good policy in encouraging the payment of taxes upon unimproved and uninclosed lands—and we think that there is—then this act, which does not countenance fraud or imposition, ought not to be deprived of its effect by any narrow or unreasonable construction. Nor can we find any objection to the act because it requires owners of unimproved and uninclosed land to see to it that the taxes thereon are properly paid.

But it is contended that the act should be construed so as not to be retrospective, and that to give it the construction contended for by appellee would be to deprive the appellant of vested rights. As the act expressly provides that as to instances occurring before the enactment of the law taxes paid for four successive years, in addition to payments for taxes occurring at least three more years after its date, shall be determinative, it follows that the act is in plain terms retroactive as to the four years. And as a reasonable time was allowed, after the act was passed, in which an interested party could prevent the consequences of the act from falling upon him, there is no objection to the act upon the ground that it deprives the appellant herein of any vested rights. Sadler v. Sadler, 16 Ark. 628; Fee v. Cowdry, 45 Ark. 410, 55 Am. Rep. 560; Beard v. Dansley, 48 Ark. 183, 2 S. W. 701; Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659; Campbell v. Haverhill, 155 U. S. 610, 615, 15 Sup. Ct. 217, 39 L. Ed. 280; League v. Texas, 184 U. S. 156, 22 Sup. Ct. 475, 46 L. Ed. 478. And we do not think that anything said in the case of Alexander v. Gordon, 101 Fed. 91, 95, 41 C. C. A. 228, militates against the views announced in this opinion. The decision in that case, in so far as it is in accord with the decisions of this court, meets with our approval. Compare with that decision Gates v. Kelsey, 57 Ark. 523, 22 S. W. 162; Woolfork v. Buckner, 60 Ark. 163, 29 S. W. 372; Finley v. Hogan, 60 Ark. 499, 30 S. W. 1045; Saranac L. & T. Co. v. Comptroller, etc., 177 U. S. 318, 20 Sup. Ct. 642, 44 L. Ed. 786; Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659; Wilson v. Standefer, 184 U. S. 399, 22 Sup. Ct. 384, 46 L. Ed. 612; Lamb v. Powder River Live Stock Co. (C. C. A.) 132 Fed. 434; Cooley, Cons. Lim. *364.

Holding the views announced in this opinion, we think that the chancellor construed the act in question properly, and that it ought to be enforced, and the decree rendered in the court below is hereby affirmed.

BATTLE and WOOD, JJ., concur.

HILL, C. J. (dissenting).

Prior to the act in question it had been the settled law of this state for many years that "neither conveyances, nor color of title, nor payment of taxes, nor all combined, can give title to land under the statute of limitations. There must be proof of adverse possession for the requisite time." Calloway v. Cossart, 45 Ark. 81. It was evidently to change the status of wild and uninclosed land in this respect that the act was passed. The first clause says "that such land shall be deemed and held to be in possession of the person who pays taxes thereon, if he have color of title thereto." Had the act stopped there, then the rule in Calloway v. Cossart would stand changed, and seven years of such possession under the general act, or five under the judicial sales act, or two under the tax-deed act, would have given title under the statutes of limitations. But the act does not stop there, and meaning must be given to all the statute, not merely a part thereof. "But no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes...