Champion v. Williams
| Decision Date | 07 July 1924 |
| Docket Number | 93 |
| Citation | 264 S.W. 972,165 Ark. 328 |
| Parties | CHAMPION v. WILLIAMS |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court; W. A. Dickson, Judge; affirmed.
Decree affirmed.
Lee Seamster, for appellants.
1. Since the deed of J. B. Booth to Mary F. Champion conveyed to her a life estate, with remainder to the heirs of her body on her death, the land descended to the appellants, her children. 44 Ark. 458; 95 Ark. 18; 116 Ark. 233; 117 Ark 366; Id. 34. The tax deed exhibited by the defendants shows on its face that the tax sale was void because held on a day not authorized by law. 54 Ark. 666. The failure to levy taxes makes a tax sale absolutely void. 100 Ark. 488. And the sale of real estate on a day not fixed by law is "an entire omission to sell." 55 Ark. 549; 90 Ark. 256; 89 Ark. 139; 99 Ark. 500.
An affidavit of tender of taxes paid by the defendants was therefore not necessary in this case, since the complaint does not attack the tax title, and the defendants set it up as a defense and are using it as a shield to protect their possession. 43 Ark. 398, 411. Since the appellants did not acquire title until the death of the life tenant, it was the duty of the life tenant, or those in possession and receiving the rents and profits, to pay the taxes on the place, and that is an additional reason why no affidavit of tender was necessary. 33 Ark. 267; 44 Ark. 504; 98 Ark. 320; Annotated Cases, 1913E, 148; Id., 1916D, 321; 16 Cyc. 632; 137 Ark. 140. A tender is not required where it is known it will not be accepted, or where it is difficult to ascertain the proper amount, or where it would require an accounting to ascertain the amount. 74 Ark. 343; 52 Ark. 132.
2. The decree quieting title to the tract in controversy was void as to the plaintiffs for the reason that a decree affecting the real estate does not bar the remaindermen where they are not made parties. 23 R. C. L. 582, 583, 69 Ark. 539; 247 S.W 708; 38 Ark. 167; 123 Ark. 347; 150 Ark. 594; 140 Ark. 367; 128 Ark. 342. The decree was void also for the failure of petitioners or plaintiffs in the decree to give a bond as required by statute. C. & M. Dig., § 6261, second subdivision; 126 Ark. 164.
3. The court erred in holding that the statute of limitations had run against the appellants before they brought this suit. It is elementary that limitations never run against a party until a cause of action accrues. The authorities are uniform to the effect that no statute of limitations begins to run against a remainderman until the death of the life tenant and, though the life tenant's interest may be acquired by other parties, a remainderman is not required to act until the life tenant's death. Crawford & Moses' Digest, § 10054, contemplates a valid tax sale, and a void tax sale does not work a forfeiture to the remainderman. 80 Ark. 583; 95 Ark. 333. A new cause of action arises upon the death of the life tenant, the same as if no forfeiture had ever happened. 17 R. C. L. 650; 9 Am. St. Rep. 795, 800; 11 Am. Dec. 178; 97 Ark. 33; 140 Ark. 368; 128 Ark. 342; 83 Ark. 196, 200; 87 Ark. 428; 92 Ark. 143; 100 Ark. 399; Id. 488; 61 Ark. 36; 55 Ark. 192; 23 R. C. L. 991, § 160; 16 Cyc. 651, 652; Id. 567 § 116; R. C. L. 589 § 154; 148 Ark. 216, 219.
Duty & Duty, for appellees.
1. The failure to file an affidavit of tender, as required by C. & M. Digest, § 3708, was a good defense, and, on appellee's motion, the cause should have been dismissed. 23 Ark. 644. Douglas v. Flynn, 43 Ark. 398, relied on by appellants, has been explained, modified and overruled in a number of subsequent cases. 60 Ark. 499; 116 Ark. 115; 94 Ark. 490. A purchaser under a void deed who pays taxes thereunder and makes improvements is entitled to recover therefor. 99 Ark. 501; 92 Ark. 167; 120 Ark. 249.
2. The tax sale of 1869, so far as the record in this case shows, was valid, and made on a day appointed by law, and after a proper levy. The court heard no evidence as to what was the proper day to make the sale in 1869. 69 Ark. 99.
3. Appellants were barred by both the two-year and the seven-year statutes of limitations. As to the effect of a tax sale on the owner of the life estate, and on the estate in remainder, the effect of the purchaser going into exclusive and adverse possession, holding under a tax deed and paying taxes for over fifty years, see 91 F. 602; 29 So. 821; C. & M. Digest, §§ 10109, 10110, 10025, 10054. 84 Ark. 1; 123 Ark. 537; 104 Ark. 108; 123 U.S. 747; 26 R. C. L. 403, § 360; 126 Ark. 86; 84 Ark. 614; 129 Ark. 270; 129 Ark. 324; 77 Ark. 324; 20 Ark. 543; Id. 508; 60 Ark. 163; 79 Ark. 364; 78 Ark. 7; 71 Ark. 117; 140 Ark. 367. Two years' adverse possession under a void tax deed will bar an action by the owner of the original title. 152 Ark. 368; 84 Ark. 140; 94 Ark. 490; 76 Ark. 447; 153 Ark. 620; 124 Ark. 379. A tax deed void on its face is also such color of title as will support the seven-year statute of limitations. 124 Ark. 379; 80 Ark. 82. Crawford & Moses' Digest, § 6947, makes no exceptions from its provisions, and there can be none in favor of remaindermen, minors or other persons under disability, except as to the right of infants to redeem within two years after attaining their majority. 53 Ark. 418.
4. The estate of the life tenant in this case terminated long before her death. If the tax sale of 1869 was void, the life tenant was barred two years after the purchaser went into possession under the deed executed by the clerk in 1872. From that time her life estate was terminated, and, if her children had anv cause of action, it then accrued. 101 N.W. 195; 29 So. 821. One who has a vested remainder in land has the right to protect the estate, and may maintain an action for any injury to the inheritance committed or threatened, whether by the tenant in possession or by a stranger, as for taxes paid by the remainderman to protect the estate. 23 R. C. L. 579, § 136; 587, § 158; 556, § 103; 95 Ark. 18. See also 60 Ark. 499; 65 Ark. 70; 58 Ark. 151. The decree quieting the title recites proper notice, and cannot be attacked by appellants in this proceeding. It is conclusive against all parties, except those specifically excepted by the statute. Appellants were parties to that suit. 24 Ark. 519; 91 Ark. 95; 49 Ark. 336; 50 Ark. 188; 72 Ark. 101.
Appellants instituted this action in the circuit court of Benton County against appellees to recover possession of a tract of land in that county containing forty acres. The land in controversy is shown to be in high state of improvement, and appellees and their grantors, immediate and remote, have been in actual possession thereof for more than fifty years, claiming to be the owners. Appellants deraign title back to the United States, and the immediate foundation of that title is a deed executed in the year 1859 by J. B. Booth to their ancestor, Mary F. Champion, the effect of which, under the statute (Crawford & Moses' Digest, § 1499), was to convey an estate for life to Mary F. Champion, with remainder over to appellants. Mary F. Champion died on February 9, 1922, and this action was instituted shortly thereafter.
The material facts of the case are undisputed, being brought into the record either by agreement of counsel or by documentary evidence about which there is no dispute. The land was sold on November 15, 1869, for the taxes assessed against it for the year 1868. James Elam was the purchaser at the tax sale, and he assigned his certificate of purchase to John F. Owen, who received a tax deed from the clerk on December 30, 1872. Appellees deraign title by mesne conveyances back to John F. Owen. In the year 1906 M. L. Burns, who was then the holder of the title under which appellees claim, and who is one of the remote grantors of appellees, instituted an action under the statute (Crawford & Moses' Digest, §§ 8362 et seq.) to confirm her title, and a confirmation decree was rendered in accordance with the prayer of the petition. That decree and the record accompanying it was pleaded by appellees in bar of the right of appellants to recover the land.
It appears from the agreed statement of facts that, at the time the land was conveyed by J. B. Booth in the year 1859, it was wild and unoccupied, and remained so until possession was taken by Owen under his tax deed in the year 1872. Neither Mary F. Champion nor any one claiming in her right ever occupied the land. Mary F. Champion and her husband removed to Texas in the year 1864, and remained there until they died, her husband's death antedating her own death about ten years.
Appellees pleaded that they had a perfect title under the tax sale of 1869, and also pleaded the statute of limitations as a defense-- the two-year statute under the tax deed, and the seven-year general statute of limitation. Crawford & Moses' Digest, §§ 6947, 6942.
Appellants attack the validity of the tax sale under which appellees claim title.
The case was tried before the court sitting as a jury, and the court found specifically that the tax sale was void, but found generally in favor of appellees. Appellants' motion for a new trial was overruled, and they have prosecuted an appeal to this court.
The facts of the case upon all the issues presented are undisputed, and the question presented is whether the judgment of the court was correct or whether it was erroneous, irrespective of the particular findings made by the court.
The finding of the court that the tax sale to which appellees deraign title was void was, we think, correct. The validity of the sale was attacked on two ground-- one that it was made on a day not authorized by law, and the other on the ground that the amount for...
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