Buchanan v. Pemberton

• Decision Date: 22 March 1920
• Docket Number: 278
• Parties: BUCHANAN v. PEMBERTON
• Court: Arkansas Supreme Court

220 S.W. 660

143 Ark. 92

BUCHANAN v. PEMBERTON

No. 278

Supreme Court of Arkansas

March 22, 1920

Appeal from Lonoke Circuit Court; George W. Clark, Judge; reversed.

STATEMENT OF FACTS.

This is an action of ejectment by appellants who were plaintiffs below against appellee who was defendant below to recover possession of thirty acres of land. Appellants claim title by a deed to their ancestor in 1878 and by adverse possession since that time.

Appellee denied all the material allegations in the complaint and claimed title to the land under a collector's tax deed which is exhibited with his answer. In the tax deed the lands are described as follows:

"West part southwest quarter of the northeast quarter of section nine (9) west, township one (1) south, range ten (10) west thirty acres."

In his answer appellee further states that he has paid the taxes and made valuable improvements on the land, and that the amount of taxes paid and the value of the improvements made by him have not been paid by appellants before the institution of this suit, and that no affidavit of such tender has been filed in the case as required by section 2759 of Kirby's Digest.

Appellants admitted that they had not tendered the amount of taxes and value of the improvements under the statute just referred to. Therefore, the court dismissed the complaint of appellants for non-compliance with the statute, and the case is here on appeal.

Judgment reversed and cause remanded.

W. A Leach, for appellant.

The clerk's tax deed was void for uncertainty of description. 18 C. J. 279; 106 Ark. 83; 1 L. R. A. (N. S.) 806; 18 C. J 183; 117 Ark. 151; 48 Id. 419; 35 Id. 470; 120 Id. 69; 2 L. R. A. (N. S.) 1172; 60 Ark. 487; 68 Id. 150; 56 Id. 172; 76 Id. 460; 120 Id. 172; 131 Id. 273. See also 83 Id. 334; 93 Id. 306; 94 Id. 306; Ib. 180; 99 Id. 154; 69 Id. 34; Blackwell on Tax Titles, p. 138; Black. on Tax Titles (2 Ed.), p. 406; 23 Id. 102. The deed being void for want of proper description, appellee had no color of title. 50 Ark. 484; 77 Id. 570. And no tender of taxes and improvements was made as required by law.

Chas. A. Walls and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. The description in the tax deed is color of title. 2 C. J., p 179, § 342. The description was sufficient for color of title. 68 Ark. 544-547. It was not void for uncertainty. 56 Ark. 44; 111 Id. 222 60 Miss. 563; 60 Id. 19; 13 Ala. 31-37; 84 Iowa 448; 56 Ark. 172; 76 Id. 460; 120 Id. 528; 131 Id. 273.

2. If the description, standing alone, was insufficient, the deed contained a key which made it more certain. 135 Ark. 592.

3. Color of title was not necessary to the recovery for improvements made and taxes paid. Kirby's Digest, § 2754; 72 Ark. 609; 67 Id. 184; Kirby's Digest, §§ 2759-2760; 50 Ark. 484. The affidavit showing tender was necessary, and the court was right in dismissing the cause. 116 Ark. 118; 51 Id. 397; 28 Id. 209-302.

OPINION

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

Counsel for appellee seek to uphold the judgment dismissing the complaint on the ground that the description in the tax deed is not void for uncertainty and is therefore color of title. It will be remembered that the description in the tax deed is the "West part southwest quarter of the northeast quarter of section nine (9) west, township one (1) south, range ten (10) west, 30 acres." Counsel for appellee rely on decisions of the Supreme Courts of Mississippi, Alabama and Iowa, holding that similar descriptions are not void for uncertainty. We do not deem it necessary, however, to cite or to review these cases; for our court has taken the contrary view and in several cases where the descriptions were in all essential respects similar to the one in the case at bar has held that they were void for uncertainty.

In Covington v. Berry, 76 Ark. 460, 88 S.W. 1005, the court held that a tax deed describing land as the east part of the southeast quarter of section 30, township 5 north, range 4 east, 63 acres, was void for uncertainty of description.

In Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S.W. 199, a tax deed describing land as the west part of the southeast quarter of the southeast quarter, etc., 7.60 acres, was void for uncertainty of description.

Again, in Cotton v. White, 131 Ark. 273, 199 S.W. 116, a tax deed describing land as part of the northwest quarter of the northeast quarter and west part of the southeast quarter of the northeast quarter of a certain section, township and range was void for uncertainty. These cases control here, and the description in the instant case is void for uncertainty because it does not specify the part of the quarter section out of which the thirty acres are to be taken and therefore they cannot be located from the face of the deed. To obtain the benefits of section 2754 of Kirby's Digest, the party must hold under color of title, peaceably, and in good faith believe that he is the owner of the land. Teaver v. Akin, 47 Ark. 528, 1 S.W. 772; Jefferson v. Edrington, 53 Ark. 545, 14 S.W. 99; White v. Stokes, 67 Ark. 184, 53 S.W. 1060, and Beasley v. Equitable Securities Co., 72 Ark. 601, 84 S.W. 224.

Appellee sets up title by purchase at a tax sale and insists that the appellant's complaint should be dismissed for noncompliance with section 2759 of Kirby's Digest. The statute provides that no person shall maintain an action for the recovery of any lands against any person who may hold such lands by virtue of a purchase at a tax sale without filing an affidavit setting forth that the claimant has tendered to the person holding the lands the amount of taxes and costs paid for the lands with the accrued interest and the value of all improvements made on the lands by the purchaser.

Counsel for appellant admits that the filing of such an affidavit is a prerequisite to the bringing of a suit under the statute for the recovery of the lands as held in Wolf & Bailey v. Phillips, 116 Ark. 115, 172 S.W. 894, and other cases; but he contends that it was not necessary to file the same in the present case because the sale for taxes was void on account of the uncertainty in the description of the land. We think counsel for appellant is correct in his contention.

In Hershey v. Thompson, 50 Ark. 484, 8 S.W 689, an assessment of land for taxation which describes it as part of the southeast quarter of the northeast quarter of a certain section, township, and range, was held void for uncertainty in the description of the part assessed and that no valid sale could be based thereon. The court said that in the assessment of lands for taxation the statute provides that the description of each tract shall be such as to identify and distinguish it from all other tracts of land. The purpose of the description is to inform...