Brasher v. Taylor

• Decision Date: 30 June 1913
• Citation: 159 S.W. 1120
• Parties: BRASHER et al. v. TAYLOR et al.
• Court: Arkansas Supreme Court

159 S.W. 1120

BRASHER et al. v. TAYLOR et al.

Supreme Court of Arkansas.

June 30, 1913.

Appeal from Circuit Court, Lee County; J. M. Jackson, Judge.

Ejectment by A. W. Brasher and others against J. L. Taylor and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

This was an action of ejectment brought by appellants against appellees on the 24th of September, 1904. The facts are as follows: W. A. Brasher died intestate in the year 1863, owning the lands in controversy, which are situated in Lee county, Ark. He left surviving him as his sole heirs at law A. W. Brasher, Rachel Brown, Melissa Long, T. J. Brasher, and Mrs. A. Woolridge, who are his brothers and sisters. Rachel Brown is a married woman, having married in 1855. Melissa Long is a married woman, and has been since 1872. Mrs. A. Woolridge died intestate in 1878, leaving as her sole heirs at law her two children, Byron Woolridge and Mattie Fruit. Mattie Fruit is a married woman, and has been since 1878. A. W. Brasher was 73 years old, and Byron Woolridge was 49 years old, at the time of the institution of this suit. The lands in controversy are wild and unimproved. They are not inclosed, and are not occupied. On the 8th day of May, 1873, T. J. Brasher conveyed the lands in controversy to his wife, and she conveyed the same to J. T. Robertson on the 17th day of June, 1896, and the deeds were duly recorded. Solomon Friedman obtained a judgment in the Lee circuit court in 1874 against T. J. Brasher, and the lands in controversy were sold under execution to Solomon Friedman, who received a sheriff's deed thereto on the 31st day of October, 1876. On the 19th day of June, 1896, Solomon Friedman conveyed said lands to J. T. Robertson, and the latter in 1904 conveyed the same to J. L. Taylor and Mrs. Elizabeth Sellers, who are the defendants in this action, and the deeds were duly filed for record. A. W. Brasher, Byron Woolridge, Mattie Fruit, Rachel Brown, and Melissa Long are the plaintiffs in the action. It was agreed at the trial that the defendants and those under whom they claim title have paid the taxes on said lands from the year 1867 until the time of the institution of the suit under the claim of ownership acquired under the various conveyances above mentioned. The circuit court declared the law to be that an action of ejectment could not be maintained by plaintiffs against defendants, and rendered judgment in favor of defendants. The plaintiffs have appealed.

C. E. Daggett and P. D. McCulloch, both of Marianna, for appellants. H. F. Roleson, of Marianna, for appellees.

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

In several of the states by statute actions of ejectment may be brought against persons claiming title to or any interest in real property although not in possession. Counsel for the plaintiffs, to reverse the judgment, have cited decisions under these statutes; but they have no application here. Under our statutes, in order to entitle the plaintiff to recover in an action of ejectment, he must show that he had title to the premises claimed, and that the defendant was in possession of same at the time of the commencement of the action. Kirby's Digest, § 2745.

Again, it is contended by counsel that the plaintiffs are entitled to maintain the action because the lands are wild and unimproved, and the defendants and their grantors, under color of title, have paid the taxes on the same from the year 1867 to the time of the commencement of the action in 1904. In support of this contention, they rely upon the act of March 18, 1899 (section 5057, Kirby's Digest), and the decisions of this court construing the same. The act provides 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. Prior to the passage of this act the court held that the payment of taxes and the assertion of the exclusive right to land do not constitute possession or disseise the holder of the true title. Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813. The question of whether or not this rule has been changed by the passage of the act of 1899, above referred to, is the most serious question of law raised by the appeal, and is one that has given us the gravest concern.

In construing the act of 1899, in the case of Towson v. Denson, 74 Ark. 302, 86 S. W. 661, the court held that the payment of taxes on wild and unimproved land, under color of title, constitutes possession of each successive year in which payment is made, provided, however, that such payments be continued for at least seven years in succession and not less than three years after the passage of the act. The act has been construed in subsequent decisions of the court, and it has been uniformly held that the payment of taxes for the full period of time and under the conditions named in the statute is equivalent to possession. It is true that in some cases, as in Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387, the court says that the act makes the payment of taxes under the condition named in it a constructive possession; but in doing so the...