Burbridge v. Bradley Lumber Co., of Arkansas

• Decision Date: 22 November 1948
• Docket Number: 4-8606,4-8607 (consolidated)
• Citation: Burbridge v. Bradley Lumber Co., of Arkansas, 215 S.W.2d 710, 214 Ark. 135 (Ark. 1948)
• Parties: Burbridge v. Bradley Lumber Company of Arkansas
• Court: Arkansas Supreme Court

215 S.W.2d 710

214 Ark. 135

Burbridge v. Bradley Lumber Company of Arkansas

Nos. 4-8606, 4-8607 (consolidated)

Supreme Court of Arkansas

November 22, 1948

[Copyrighted Material Omitted]

Appeal from Bradley Chancery Court; Paul Johnson, Special Chancellor.

Reversed.

DuVal L. Purkins and U. A. Gentry, for appellant.

Williamson & Williamson, for appellee.

Griffin Smith, Chief Justice.Justices Frank G. Smith, McFaddin and Millwee concur in case No. 8607. Ed. F. McFaddin, Justice concurring.

OPINION

Griffin Smith, Chief Justice.

L. J. Burbridge appeals from two decrees in favor of Bradley Lumber Company in controversies testing ownership through purchase of tax titles.The actions are consolidated here for the purpose of an opinion.

September 30, 1936, Bradley named Burbridge and Howard Griderdefendants in an action to restrain them from cutting and removing timber from the Southwest Quarter of the Southeast Quarter of Section Twenty-two, Township Thirteen South, Range Nine West, in Bradley County.The plaintiff also asked that its title be quieted and confirmed.The appeal is our No. 8606.

Burbridge filed suit January 15, 1937, alleging ownership of the Fractional Southeast Quarter of Section Twenty-three, Township Twelve South, Range Nine West, in Bradley County.He charged that the Lumber Company had cut and removed timber having a stumpage value of $ 7,500, worth $ 15,000 in its converted form.Judgment for the larger sum was asked, together with a decree confirming title.This appeal is our No. 8607.

Number 8606.-- The Lumber Company, (for brevity, sometimes spoken of as Bradley) acquired title to the Southwest Quarter of the Southeast Quarter October 11, 1917.Burbridge, however, purchased the property at a sale for delinquent taxes June 8, 1908, covering 1907 taxes.A clerk's deed was issued to Burbridge August 28, 1911.After procurement of the deed, taxes were paid on the land for 1908 and 1909 by Gates Lumber Co., Bradley's predecessor in record title.Burbridge paid for 1910, and Gates met the obligations for the succeeding five years.For 1916 payment was by S. B. Meek and R. S. Jolley, the latter being grantees of Gates Lumber Co. Bradley paid for 1917 and for the three succeeding years, while Burbridge alone paid for 1921, 1922, and 1923.During the next seven years (1924 to 1930, both inclusive) Burbridge and Bradley each paid, but in point of time Burbridge was ahead of Bradley.Taxes for 1931 and 1933 were paid by Burbridge, but the assessment for 1934 was discharged by Bradley.Bradley paid for 1935, 1936, 1937, 1938, and 1939; but Burbridge also paid for 1937.Burbridge paid for the years listed subsequent to 1939, including 1945, but Bradley duplicated the 1942 payment.The 1937 item is marked, "One-fourth of $ 3.46 paid by Burbridge April 21, 1938; three-fourths of $ 3.46 paid by Bradley Lumber Co.October 3, 1938."Because the suit was filed in September 1936, rights are referable to transactions alleged in the complaint.

By stipulation it is shown that records of the Levying Court(October 7, 1907) affirmatively disclose a vote on all taxes other than school, but a later "list," and notice of sale of delinquent lands for 1907, shows a fortycent school tax, included in assessments for which property sold.Other irregularities alleged, and set out in the stipulation, were: (a) As advertised, the Clerk's cost was five cents; Clerk's cost for which the property actually sold, twenty-five cents.(b) The same was true in respect to Sheriff's cost.(c) The land was advertised to be sold for taxes, penalty and cost amounting to $ 2.28, but was actually struck off for $ 2.78.(d) The record of delinquent lands sold to individuals for the period in question actually totals $ 2.68 when the several items are added, but the sale was for $ 2.78 -- a fact disclosed by the Clerk's deed to Burbridge.(e) The list of delinquent lands and notice of sale, required by § 13,846 of Pope's Digest, was first published May 28, 1908, repeated June 4, and the sale held June 8, and the Clerk's certificate is dated June 8.(f) The land is wild and unimproved and unenclosed.It is timber land within the purview of §§ 8920and8921 of Pope's Digest.

After holding that Grider was an employe of Burbridge and had no interest in the subject-matter, the Court found that the Collector's sale for 1907 taxes was void, but that the Clerk's deed was color of title.It was the Special Chancellor's view that § 8920 of Pope's Digest was not available to Burbridge, because of Bradley's tax payments covering 1924 and 1930(and intervening years), a course of conduct by the owner which had the effect of "breaking the adverse possession."The Court asserted that a duty rests upon all property-owners to pay taxes, and in view of the privilege given by law to pay during a prescribed period, no other person had the right during that time to engage in a "race" to establish priority; hence, the fact that receipts were issued to Burbridge at a time when the property was delinquent would not be effective in discharging the tax lien -- a lien, under the Court's construction, that subsisted in spite of Burbridge's payment.It was the Court's further thought that Bradley made an effort, in good faith, to pay the taxes for each of the years upon which Burbridge relies, and that the effort was "tantamount to payment."

Testimony upon which the Court relied in finding that Bradley endeavored to discharge the liens was given by Joe L. Reaves, representing the Company, and John C. Lee, who had served as Collector.Reaves said that, as to his own conduct, beginning in 1924, it had been the Company's custom to prepare a list of property upon which taxes were to be paid, and deliver it to the Collector in January or February.This list was never submitted "later than the month of February."When the list was delivered, the Company's representative was informed that receipts would be "worked up" at the Collector's convenience.The Collector, in turn, was told that the Company was ready to pay when the receipts were available.The different properties were ascertained by referring to a Land Record Book maintained by the Company, but the witness (Reaves) did not check to ascertain if any lands had formerly forfeited.No copy of the list was retained; neither did the Collector return the original when taxes were paid.So far as Reaves knew, no effort was made by the Company to determine if all taxes had been paid.There was complete reliance upon the Collector's good faith, accuracy, and sufficiency of the list.His first knowledge that the taxes had not been properly paid came when the suit was filed.

John Lee, who served as Collector during the period in question, testified that Bradley and one of the other large lumber companies in his county "favored" him by supplying the lists mentioned by Reaves.He"guessed" the Bradley Company understood the receipts would be made out in the course of ordinary convenience, as time was found for the task.There was no request that the list be "worked up" at any particular time, although Reaves told him the Company was ready to pay at any time.When asked why (for each of the years during which Burbridge paid before Bradley)he had accepted the Company's money when someone else had paid the assessment, Lee replied, "It could have been a double assessment, [but that] is not likely."

The Lumber Company argues, first, that irrespective of the payment made by Burbridge in 1908 and his "void" Clerk's deed of 1911, payment of taxes by Bradley and its predecessors in title for the ten years subsequent to 1910 and before 1921 had the effect of investing perfect title in Bradley; and this would be true, they say, even if appellant's tax deed had been valid.Jones v. Brown,211 Ark. 164, 199 S.W.2d 973.

The second contention is that a presumption must attach that Gates Lumber Company redeemed the land from the 1907 forfeiture; but if this is not sufficient, then Burbridge is barred by laches in that for ten years he permitted Bradley and its predecessors to pay taxes, hence Burbridge must have abandoned "his void claim."Townsend v. Bonner,205 Ark. 172, 169 S.W.2d 125;McFarlane v. Morgan,157 Ark. 97, 248 S.W. 257.To sustain the contention that Burbridge was guilty of laches, attention is called to Hay v. Nickey Brothers,142 Ark. 398, 218 S.W. 855.

The third ground relied upon (that the sale for 1907 taxes was void and could not be cured by Act 142 of 1935) involves insufficiency of publication, notice of sale having been for less than two full weeks.Other matters mentioned in the stipulation -- failure to levy a school tax and inclusion of such in the exaction; excessive taxes, involving an alleged overcharge of 20 cents by the Sheriff and by the Clerk, and unexplained discrepancies between advertised total and total collected, -- these are pointed to, with reliance upon such cases as Lambert v. Reaves,194 Ark. 1109, 110 S.W.2d 503and112 S.W.2d 33;Lumsden v. Erstine,205 Ark. 1004, 172 S.W.2d 409, 147 A. L. R. 1132;Carle v. Gehl,193 Ark. 1061, 104 S.W.2d 445, and cases following the Carle-Gehl decision.

We pretermit a discussion of questions raised under the first, second, and third assignments presented to the Court below, and under which the record titleholder prevailed, for the reason that the Clerk's deed, even though void as appellee contends, was color of title -- a fact admitted by all parties.Nor is it necessary to discuss the fourth proposition, relating to the curative effect of Act 142.

The real question is, What effect must be given to claims of right invoked by Burbridge through color of title under the deeds?

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Number 8607.-- Suit in this case, having been brought by...