Arnold v. Chas. T. Abeles & Co.

• Decision Date: 20 March 1911
• Citation: 135 S.W. 833,98 Ark. 367
• Parties: ARNOLD v. CHAS. T. ABELES & COMPANY
• Court: Arkansas Supreme Court

135 S.W. 833

98 Ark. 367

ARNOLD v. CHAS. T. ABELES & COMPANY

Supreme Court of Arkansas

March 20, 1911

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

STATEMENT BY THE COURT.

Appellee brought this suit against appellants to recover damages for a breach of a covenant contained in a deed executed by appellants to appellee, conveying the timber on a certain 160 acres of land. The complaint alleges that the land in question is wild and unimproved, and that the Southern Lumber Company has a superior title to said land, and refused to permit appellee to remove the timber therefrom.

Appellants admitted the execution of the deed and the covenant of warranty, but denied the eviction, or that the title of the Southern Lumber Company was a superior one, and denied a breach of warranty. The facts, so far as they are pertinent to the issues involved, may be briefly stated as follows: On June 26, 1902, appellants by their warranty deed conveyed to appellee the timber on the lands in question, being described as follows: the northwest quarter of section 12, township 11 south, range 5 west, in Drew County, Arkansas. During the trial of the cause it was conceded that appellants had title to the west half of the northwest quarter of said section 12 and this left in question the title to the east half of northwest quarter of said section 12.

Chas T. Abeles testified that appellee was a corporation organized and doing business under the laws of the State of Arkansas. That it established a sawmill near the lands in question for the purpose of sawing the timber removed therefrom as well as from other lands owned by it. That the Southern Lumber Company claimed title to the lands and forbade appellee from cutting and removing any timber or trees therefrom. That upon investigation, appellee ascertained that the title to said lands was in the Southern Lumber Company, and notified appellants of that fact, and requested them to obtain the title for it. That appellants failed and refused to get title from the Southern Lumber Company, claiming that they already had title thereto. That subsequently appellee bought the timber from the Southern Lumber Company.

On the 9th day of December, 1857, J. C. Griffing received a patent to the west half of section 12, township 11 south, range 5 west. The east half of the northwest quarter of section 12 township 11 south, range 5 west, was forfeited to the State for the nonpayment of taxes for the year 1867. On the 10th day of April, 1882, the State of Arkansas conveyed same to M. W. Benjamin. The Southern Lumber Company deraigns title to said land by mesne conveyances from M. W. Benjamin. It also deraigns title from some of the heirs of J. C. Griffing, but the views we shall hereinafter express make it unnecessary to consider this.

Appellants deraign title from the heirs of J. C. Griffing by deed made by them in 1888. They deny that appellee or its agents notified them that the title to said lands was in the Southern Lumber Company, or requested them to obtain title from it. Other facts will be referred to in the opinion.

By agreement the case was tried before the court sitting as a jury. Certain findings of fact and declarations of law were made by the court and reduced to writing.

The court rendered judgment for appellee, and appellant by this appeal seeks to reverse that judgment.

Judgment affirmed.

Vaughan & Vaughan, for appellants.

Morris M. Cohn, for appellee.

OPINION

HART, J., (after stating the facts).

From the statement of fact, it is readily apparent that the title to the lands in question was in the Southern Lumber Company at the time it stopped appellee from cutting and removing the timber therefrom. The lands were forfeited to the State for the nonpayment of taxes while they were owned by J. C. Griffing. After the period for redemption had expired, they were purchased from the State by M. W Benjamin; and he obtained a deed therefor from the...